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25 Aupuni Street,Suite 2603 • Hilo,Hawaii 96720 • (808)961-8211 • Fax(808)961-6553
KONA: 74-5044 Ane Keohokalole Hwy.,Bldg C • Kailua-Kona,Hawaii 96740
(808)323-4444 • Fax(808)323-4440
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April 05, 2021 f,,
Committee Chair Ashley L. Kierkiewicz
And Members of the Committee on Planning ? 4L
25 Aupuni Street
County of Hawai`i
Hilo, Hi 96720 " -,
Aloha Committee Chair Kerkiewicz and Committee Members:
The following transcripts are being provided in reference to the Planning Commission Video Clips
regarding Communication 183 submitted on April 1, 2021.
Should you have any questions, please contact me.
Mahalo,
Mitchell D. Roth
MAYOR
Comm. No. It •
Ref. To: y
County of Hawaii is an Equal Opportunity Provider and Employer. Ref. dote APR 7 202 0
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LEEWARD PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
FEBRUARY 20, 2020
A regularly advertised hearing on the applications of SGRY DBA KONALANI YOGA
ASHRAM(SMA 19-000074 AND SPP 19-000210)was called to order at 1:15 p.m. in the West
Hawai`i Civic Center, Community Center, Building G, 74-5044 Ane Keohokalole Highway,
Kailua-Kona, Hawaii, with Chairperson Nancy Carr Smith presiding.
COMMISSIONERS PRESENT: Nancy Carr Smith, Perry Kealoha, Max Newberg,
Keith F. Unger, Mark Van Pernis and Michael Vitousek (until 3:16 p.m.)
ABSENT AND EXCUSED: Faith"Faye"Yates
ALSO PRESENT: Malia Hall, Esq. (Counsel for the Commission), Michael Yee (Planning
Director), Jeff Darrow (Planning Program Manager), Christian Kay (Planner), Alex Roy
(Planner), Jessica Andrews (Planner) and Noriko Sauer(Commission Secretary)
And eight people from the public in attendance.
APPLICANT: SGRY DBA KONALANI YOGA ASHRAM(SMA 19-000074)
Application for a Special Management Area Use Permit to legitimize the development and
operation of a residential yoga ashram, and the establishment and operation of a church facility
with a meditation temple, classrooms, six(6) guest bedrooms and a commercial kitchen and
related improvements on an approximately one (1) acre portion of a larger 5.1570-acre property
situated in the Special Management Area. The subject property is located at 77-0447
Ho`omaluhia Drive, at the southern terminus of Sea View Circle, Holualoa 3rd—Kaumalumalu—
Beach Sec., North Kona, Hawai`i, TMK: (3) 7-7-004:065 (por).
APPLICANT: SGRY DBA KONALANI YOGA ASHRAM(SPP 19-000210)
Application for a Special Permit to legitimize the development and operation of a residential
yoga ashram, and the establishment and operation of a church facility with a meditation temple,
classrooms, six(6) guest bedrooms and a commercial kitchen and related improvements on an
approximately one (1) acre portion of a larger 5.1570-acre property situated in the State Land
Use Agricultural District. The subject property is located at 77-0447 Ho`omaluhia Drive, at the
southern terminus of Sea View Circle, Holualoa 3rd—Kaumalumalu—Beach Sec., North Kona,
Hawai`i, TMK: (3) 7-7-004:065 (por).
CARR SMITH: The next agenda item is Applicant SGRY, which is a DBA Konalani Yoga
Ashram. This is SMA Permit 19-000074, application for a Special Management Area Use
Permit to legitimize the development and operation of a residential yoga ashram, and the
establishment and operation of a church facility with a meditation temple, classrooms, six
bedrooms and a commercial kitchen and related improvements on approximately one acre of a
larger 5.1570-acre parcel situated in the Special Management Area. The subject property is
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located at 77-0447 Ho`omaluhia Drive, at the southern terminus of Sea View Circle,Holualoa
3rd—Kaumalumalu—Beach Section, North Kona, Hawai`i. The TMK is (3) 7-7-004: a portion of
Parcel 065.
We are hearing this as well along with Agenda Item 7, which is SGRY doing business as
Konalani Yoga Ashram. This is for Special Permit 19-000210. It's an application for a Special
Permit to legitimize the development and operation of a residential yoga ashram, and the
establishment and operation of a church facility with a meditation temple, classrooms, six guest
bedrooms and a commercial kitchen and related improvements on an approximately one-acre
portion of a larger 5.1570-acre property situated in the State Land Use Agricultural District. The
subject property is located at 77-0447 Ho`omaluhia Drive, at the southern terminus of Sea View
Circle, Holualoa 3rd—Kaumalumalu—Beach Section, North Kona, Hawai`i, TMK: (3) 7-7-004: a
portion of Parcel 065. Staff?
KAY: Thank you, Madam Chair. Again, if I can direct your attention to the screen. As the
Chair stated,we are going to do one presentation, as essentially both the Special Permit and the
SMA Permit are for the same purpose.
The subject property is located in the North Kona District of Hawaii Island, more specifically,
in the,pardon me, adjacent to the Kona Sea View Estate Subdivision, and the subject property is
outlined here in red. For reference, we've got Kuakini Highway running mauka of the subject
property, generally north-south through the slide. Again,the Sea View Subdivision here, and the
subject parcel is part of the Ho`omalu at Ali`i Subdivision.
Applicant is requesting a Special Permit and a Special Management Area Use Permit for the
following uses: To legitimize the development and operation of a residential yoga ashram, as
well as,pardon me, within an existing 3,186-square foot dwelling; according to the applicant, a
residential yoga ashram is a religious entity most similar to a monastery for clergy and dedicated
meditation practitioners to live and practice together;they are also requesting to develop and
operate a new 4,800-square foot church facility with a meditation temple, classrooms, six guest
bedrooms, dining area, bathrooms and a common area; in addition, the applicant proposes to
develop a ten-stall gravel-improved parking area and landscaping, as well as they are in the
process of securing as-built, or after-the-fact, building permits for three additional unpermitted
bedrooms within the existing dwelling, a 1,196-square foot covered yoga deck attached to the
existing dwelling and a gazebo shrine structure and a barn. The applicant anticipates utilizing
approximately one acre of a larger 5.157-acre property for the proposed uses.
Per the applicant, once the new temple facility is built,the applicant proposes to resume the
following activities on the subject property: Three weekly drop-in meditation classes and three
weekly yoga classes open to the public; classes generally range from three to ten students and
range from one to two hours; on occasion, the applicant would also offer special classes and
workshops for Hindu/Buddhist holidays and sacred art;the applicant also proposes to hold an
estimated four to eight retreats each year, both meditation retreats and yoga teacher training
retreats;based on past practice,the retreats range from one to three weeks and retreat attendance
ranges from three to ten students, serving an estimated 18 to 36 retreatants per year; meals for
retreatants will be prepared in the proposed certified kitchen and overnight accommodations will
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be provided within the proposed six guest bedrooms. In the near term, the applicant has
represented a desire to continue a meditation practice on Monday evenings for about 14 church
members at the proposed residential ashram, or within the existing dwelling. Please note, in our
reports we said three evenings a week, because other correspondence had represented that
meditation practice for church members occurs Mondays, Thursdays and Fridays, specifically
around the traffic studies. So that's why that was in there, but there seem to be some
differentiation.
Stated reasons for the request as the subject Special Permit request was filed in response to a
Planning Department warning letter for a possible Zoning Code violation for allegedly operating
an unpermitted, non-agricultural yoga training business in an Agricultural zone and providing
overnight accommodations to yoga students without a Special Permit;the applicant countered
that they were operating a residential yoga ashram and providing Hindu/Buddhist religious
church services, which included yoga instruction and overnight accommodations to yoga
students as part of the practice. In any case, churches, residential yoga ashrams and yoga
instruction with overnight accommodations are not permitted within the State Land Use
Agricultural District, and thus require a Special Permit to operate.
As the subject property is situated within the Special Management Area and the valuation of the
proposed project would likely exceed 500,000 dollars valuation threshold, the Director
determined that an SMA Use Permit application was required. According to the applicant, all
public uses of the property have ceased while they are going through the required Special
Permit/SMA Use Permit application processes.
The County zoning for the subject property and much of the surrounding area is Agricultural-5
acres as indicated within the green color. The Kona Sea View Subdivision is Single-Family
Residential, as well as some Multiple-Family Residential and Commercial up by the highway.
Across Kuakini Highway is more Single-Family Residential and Agricultural zoning. I should
point out,too,that the applicants represented that they would be taking access both off of Sea
View Circle, as well as off of Ho`omaluhia Drive, which is a private road across several private
properties in an easement, as well as this small narrow parcel here is the 15-foot wide Judd Trail
alignment, and the applicant crosses that to get to their property from the backside, from the
Ho`omaluhia side.
The State Land Use designation for the subject property and much of the surrounding area is
Agricultural as indicated in green. And as indicated in red is Urban, more consistent with the
Single-Family Residential zoning.
The LUPAG designation for the subject property and much of the surrounding area is Urban
Expansion. A portion of it is within the Low Density Urban designation and then, again,
consistent with the Commercial and Multiple-Family Residential is Medium Density Urban as
indicated in the burnt orange color.
The subject property is fully within the Special Management Area as indicated by the red
thatching. In this area, it goes from Kuakini makai down to the shoreline. Again,that's why the
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determination for the Special Management Area Permit, again, given that the project is likely to
exceed the 500,000-dollar threshold.
Kona CDP designates the area within the Kona Urban Area. You can kind of see the small red
line here and further mauka encompasses the Kona Urban Area.
Here's two aerial photographs of the subject parcel: On the upper left just showing the subject
property bounded in purple and the adjacent residential subdivisions and agricultural
subdivisions, so you can see single-family residential uses here, as well as farm dwelling uses
and some farm uses in the Ho`omalu Subdivision; on the lower right we've got a blown-up
picture of the subject property, again, bounded in purple, access coming from Kona Sea View,
pardon me, Sea View Circle, as well as you can see Ho`omaluhia Drive here. The driveway
access is across, from Ho`omaluhia Drive across the Judd Trail is generally in this area. On the
subject property you'll see the existing dwelling, and this is the unpermitted yoga deck here
attached to the existing dwelling. We've got an additional farm dwelling that was built without a
permit here. The applicant is in the process of demolishing that. We are requesting a demolition
permit to take that out. There were four other unpermitted structures up along the backside of
the property here,two bungalows for lack of a better term and then two tent decks where covered
and, tents were erected for retreat participants. Also, we've got the barn here that we talked
about earlier. The property does have some agricultural use on it in a form of fruit trees and the
trees for trading religious prayer beads.
Here is the applicant's site plan. Again, this is kind of flipped a little bit, but we've got Sea
View Circle here coming to the top of the property and Ho`omaluhia Drive here. You can see
the Judd Trail indicated here in the dash line. And we've got the entering way for the driveway
here across the area, again, showing the existing dwelling that is being proposed for the
residential yoga ashram, the unpermitted yoga deck connected, and the additional farm dwelling
that is in the process of being removed. Sorry, I failed to mention on the other one that there is
also a shrine gazebo here in this area, and you can see driveway and parking area here. Adjacent
to the right of the existing dwelling is the proposed location of the new ashram temple facility
and, again, some, you know, showing trees and landscaping as well.
I should mention, you know,there was question about legal access over the Judd Trail
throughout the process. We've got a comment letter from the Department of Land and Natural
Resources, Land Division, indicating that there was no record that there was ever an access
easement that was executed across the Judd Trail in this area. Upon further research, we found
that that was based on a requirement within the Board of Land and Natural Resources sale of
eight access easements across the Judd Trail, which indicated that there was a requirement that
the applicant at the time,Nahona Partners, or any successors or assigns, be responsible for
complying with preservation measures that would be required by SHPD. As after the first phase
of the subdivision was granted,unfortunately Nahona Partners dissolved as a business, and we
were unable to follow through with those easements. And, as it currently stands, SHPD is
determining what those preservation requirements will be. Also, as part of this,we researched
the access along Ho`omaluhia Drive and found that unfortunately again there was no access
easement that was approved for the applicant across Ho`omaluhia Drive.
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Okay, here are some photos of the site. Upper left and upper right are just photos looking mauka
at the existing dwelling,proposed residential ashram facility. You can see here the yoga deck
that they are requesting an as-built permit for, and within this portion of the dwelling is a
worship shrine area as well that meditation is practiced. This is from the backside looking
makai, and the backside of the dwelling shows an existing parking area that's provided.
Upper left in this series of photos is the existing unpermitted additional farm—pardon me
[malfunction of the projector], come on, Technology, you can do it, okay, thank you—so, upper
left is the existing additional farm dwelling that is in the process of being demolished. This is
the gazebo shrine structure. These are kind of just general areas that were indicated as where the
new temple structure is proposed to be built.
Here are just some photos of Sea View Circle. The top photos are from Sea View Circle looking
toward the subject property, which is here, and this is from within the subject property looking
out at Sea View Circle. Here is looking at Sea View Circle from the gate, and then up another
portion of Sea View Circle that comes from the highway.
The Planning Director is recommending approval of the requests with conditions. With that, I'm
happy to answer any questions that Commission may have.
CARR SMITH: Thank you. Mr. Van Pernis.
VAN PERNIS: I have, I guess three questions. First, my understanding is that this property has
been in violation of the land use laws of the County for approximately 20 years. If that's correct,
what is the penalty for that violation? Is there generally one? Because they have been caught in
this violation.
KAY: So our philosophy on violations is generally complaint-driven. The warning letter that
we issued to the applicant was based on a complaint;we had inspectors that went out, did an
investigation and filed a warning letter. And our philosophy on enforcement in these cases is to
try to bring the folks into compliance. So in this case, compliance was to get a Special Permit
and a Special Management Area Use Permit so that they could operate in a legal manner.
VAN PERNIS: So generally speaking,there is no penalty for a.20-year violation.
KAY: That's correct,we go for trying to bring people into compliance first.
VAN PERNIS: Secondly, the applicant, I assume, correct me if I'm wrong, can live and host on
the premises during the time they come into compliance with the approval and conditions.
KAY: Yes, I mean that the structure is currently permitted as a single-family dwelling.
VAN PERNIS: It's just they can't run any public functions until they come into compliance.
KAY: That is correct.
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VAN PERNIS: And if they violate that?
KAY: So, again, the way that in a case of our permits, if there is a suspected violation of
conditions of the permit,we would follow a similar process where we would investigate a
complaint; if it's found that the applicant is in violation of their permit, we work with them to try
and come into compliance; if that does not work,then there is the ability for the Director to bring
the permit back to the Planning Commission for revocation.
VAN PERNIS: And what are the conditions?
KAY: I'm sorry—
VAN PERNIS: What are the conditions issued for the job there?
KAY: There are multiple conditions in your recommendation reports—
VAN PERNIS: The same as the Director's report?
KAY: Yes, at the end of each recommendation report,there is a statement that says, "Based on
the proceeding findings, it is recommended that this permit request be approved subject to the
following conditions." In the case of the Special Permit,that starts on Page 15. In the case of
the SMA Permit, that starts on Page 10.
I should mention,too,I apologize, since we sent out our background and recommendation to
you, there have been a few other pieces of correspondence that have come in. First and
foremost,there was a set of questions on our recommendation from the applicant. We sent a
response to those. And there was one other correspondence in response to our response. And
then today you received a, pardon me, a written comment from a Wanda Carey. I just want to
point out, it's on a Petition for Standing in a Contested Case Hearing, Ms. Carey was
contemplating filing a petition last week. She decided not to but asked to just submit this
because this is where all of the kind of written justification for her complaint is, or her testimony
is. So those are the documents that have come in since.
VAN PERNIS: Have you received a letter from someone representing themselves as attorney
Mauck?
KAY: Yes. That was part of the application packet that we submitted in the background. It was
a twelve-page legal memorandum around the Religious Land Use and Incarcerated Persons Law.
VAN PERNIS: I want to point out and preface that, as an attorney in Kona for forty years, the
letter of Mr. Mauck is a standard publication and is not at all applicable to this proceeding in that
no church is being denied here, no monastery, no church, and that reasonable conditions as the
Planning Department has recommended is certainly applicable under any version or any
argument of the laws that Mr. Mauck refers to—Mr. Mauck is not a Hawai`i attorney by the way.
And, have you got the opinion of Corporation Counsel on this?
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KAY: We have sent information to both Corporation Counsel for the Department as well as
Corporation Counsel for the Commission. I haven't received anything back in response
officially, so if there are legal questions, I will ask them to address those—
VAN PERNIS: Thank you.
KAY: —either out here or in executive session.
VAN PERNIS: And lastly, I want to point out, it's your position, I assume, of the Planning
Department's position that the letter of Mr. Mauck, what he refers to,provides no excuse for
noncompliance with the approval and conditions.
KAY: Again, as I am not an attorney, I'm going to defer to the corporation counsel for that. We
submitted that, again, as part of the record because it was submitted to us as part, from the
applicant
VAN PERNIS: Thank you.
CARR SMITH: Any other questions for staff? No? Very good. Thank you.
KAY: Thank you. -
CARR SMITH: Okay, will the applicant come forward, please?
F. STONE: We've been working on this for nine months, so we have quite[inaudible]. I
brought my computer along just in case so I have access to all information.
CARR SMITH: Very good,thank you. Will you all raise your right hand, please? Do you
swear or affirm to tell the truth on this matter before the Leeward Planning Commission?
APPLICANT'S REPRESENTATIVES: I do.
CARR SMITH: Okay. Could we start with you, please, and please provide your name and your
residence and your position?
D. STONE: So my name is Devi Stone. I am a resident of Kona, a student at UH Hilo, majoring
in Journalism, and I'm originally from O`ahu, born and raised. I'm a member of SGRY, and our
community in Kona meets together to practice at Konalani Yoga Ashram. And while the word
"ashram" may be flowered with images of luxury spas and pools and other extravagant things—
this is what Google Images brings me when I google "ashram"—this is not who we are;we are
church, we are not a commercial business and we are not a vacation rental. We are not illegal.
Our practices may look very different from other churches. We teach yoga and meditation as a
part of our religion. My personal background is that I was born and raised on O`ahu, and I went
to Protestant Church every Tuesday and Sunday, and while the practices I do now at Konalani
differ and look very different from what I have done, they share the same connection I have with
God. Essential to this practice like that of most religions is the ability to practice with a
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community. We've been practicing here for many years now, cultivating the land,watching our
trees and our kids and ourselves grow. And we've helped make Konalani what it is today. It's a
sacred space of our own making and is the expression of our aloha, and we are part of this Kona
community.
Since the County's order,the cease and desist order, we have stopped our meditation program
since July of 2019, and since then we've had to hopscotch around the each of our member's
houses who compose about roughly 14 people to meditate together. And if the County's mission
is to help Hawai`i's land and its people thrive, depriving a group of people from worship and the
space they've owned and operated for 20 years now is not the way to do it. SGRY has and will
continue to work to address each of the County's concerns: we first met with our neighbors and
are working to remove structures, drawing up new site plans and seeking the appropriate permits.
And, but as the conditions of approval read now, we are, will still not be able to practice together
during what's likely a year or more long building and permit seeking process. And what's more,
our managers and teachers, Joe and Anna here,who live there will not be able to live there on
other current conditions of approval. And we can continue to work with the County, but that is
only if they recognize the protections afforded to us by the federal government via RLUIPA, the
Religious Land Use and Institutionalized Persons Act, and the First and Fourteenth
Amendments. So far, right now,to us it seems that the County's actions have continued to
threaten these rights, and I just seek and ask that the County,well, I just want to say that we have
the right to worship God together at this place, and we have the right to live together at Konalani
Yoga Ashram and Church.
F. STONE: My name is Faith Stone. I was impressed, Keith, how you opened the meeting last
month with Hawaiian, so,I believe my name in Hawaiian is Mana`o`i`o Pohaku. I found another
translation for faith; it's paulele, which means stop jumping. However, years ago my hulu kumu
told me that a woman's name cannot start with"pau."
My life's work has been focused around children together with Anne Saks who will speak here
today. I was a Girl Scouts troop leader, and I'm a lifelong member of Girl Scouts'. We had a
Girl Scouts troop,was held at Konalani Yoga Ashram, and about twelve kids, five of them from
the Sea View Circle neighborhood and from five different schools. Also with Anne Saks, we
started the first Big Island Pony Club, which is like Girl Scouts on horseback. We worked with
Nani from Ka`u Nani's Ponies, to have ponies enough for girls who didn't have horses, which
was 90 percent of our troop. In this way, we could keep it affordable and cut up scholarships for
low income. And I'm a retired art teacher. I worked with K through 12 kids but found my ideal
work as high school teacher with at-risk school students, like counseling department of the
public school that I worked at would tease that I was part of their department and they would let
kids come, having a really hard time, come to the art room. I didn't talk to them about their
problems but let them paint, draw, gave them a cup of tea and some cookies and gentle
encouragement about their art,pat on the back or shoulder. I am a working artist. I brought
along a couple of my books I did with a Tibetan friend, Karma, "Karma &Faith," and it has a lot
of our philosophy, so if anybody would like to look at that, it's all Buddhist art, religious art.
In order to support the ashram in the early years, my husband and I started Rudi's Restaurant and
Rudi's Bakery in Boulder, Colorado. Rudi's bread is nationwide now. Unfortunately, you can't
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find it in stores in Kona. Unfortunately,we sold it well before the bakery was making any
money. It is now carried nationwide.
I still run a summer yoga camp in Colorado where we reach 500 kids per summer, which teach
the yoga and meditation to give them the tools for dealing with stress in their lives. We also do
arts and crafts, hiking, go to a local spring type pool,which is freezing but extremely beautiful.
We have baby goats and alpacas to connect the kids with nature and teach care for the
environment and respect for everyone.
In regards to the yoga ashram, I have been the secretary treasurer for over 40 years since I was
20 years old. I have been through the special permit process successfully on behalf of the
ashram four times in Colorado. In these cases I wrote the special permit along with our attorney,
Berkley Freeman. Because our yoga ashram has limited financial resources, I worked as
research assistant to our attorney for legal cases. I've done that for 30 years. I'm not a lawyer or
a paralegal, but from experience, I have a working knowledge of church law. And though no
expert, I am not completely unfamiliar with County planning zoning and building departments. I
am here to help the yoga ashram to be granted special use in Ag zoning as is permitted within the
County's zoning, and that's why we are here today.
The last thing is that they talked about what is the ideal use for the property and the land, how do
we use it that helps. One, it is in Ag zoning. We've put 20 years now into improving the soil
quality. We've had people from the Hawai`i Extension come and evaluate the soil. We have
planted mango trees. We grow Rudraksha trees, which are the seeds for malas. We have
multiple citrus plants or trees. We have a vegetable garden. So we have, even though the soil
quality is E, very poor, we significantly improved it. We also do only organic farming both for
our own health, we don't use any pesticides, and for the health of our neighbors. The neighbor
just below us grows organic mangos, and while we wouldn't use it anyway, we certainly
wouldn't want anything coming from our property to blow onto his. We did look into doing
organic gardening at one point,but the certification for that was a bit more than the yoga ashram
needed. When we have extra fruits and vegetables, we donate them to the community food
share.
I think that's enough for the basic.
CARR SMITH: Thank you.
GOLDSTEIN: Aloha Commissioners and Planning Director. My name is Anna Goldstein, and I
live in Kona at this ashram we call it Konalani. I've lived in austere wise ashrams since 2010,
but at Konalani for the past five and a half years. I currently manage the ashram, and I am a
resident acharya, which is a minister in the yoga tradition. Living in the ashram has completely
changed my life and my way of being; it has turned me from only worrying about myself to
really caring about the community, the people around me, being more loving and compassionate
and kind, and generally, I'm, I'm just happier. The amazing thing about the ashram is that it's
not just about me, it's not just about the single family, but it really is about a community. This
remarkable sanctuary helps people lead happier, more fulfilling lives. I am just one example, but
these practices impact countless others in the same way. I know we are small,just a
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congregation of 14 people, but each member of our community leaves the sanctuary, you know,
leaves the ashram, rejuvenated, recharged,their hearts full, full of joy, and takes that to their
family, to their work place,to the community at large. And it might seem silly, but those small
actions that we encounter every day, you know, someone letting us in as we are trying to merge,
or just someone friendly, someone's friendly smile in a supermarket,those little things really do
go a long way. So,though it might sound silly, I truly believe that Konalani not only allows our
small congregation to practice our religion as is our right, but it makes a whole Kona community
a better, sweeter, more joyful place to live. That's our goal.
EHINGER: Hello. I know you—I'll try to make mine quick, I think you were just sharing my
name and where I'm from—but so I'm Joe Ehinger, and I'm a resident acharya at the ashram as
well. And just to make it really simple, I came to the ashram after graduating at the DePaul
University, and though I went through high school and college and graduated with honors, I
didn't feel like I really learned anything about living until the ashram taught me how to work,
how to fix things, how to serve, how to just take every day for what it needs from me, and it's a
life of selfless service much like everybody in this room actually; you guys; we are all like, you
know, in the service industry in a way, the public service. So it just, it has taught me so much.
Even though I thought that I was going to learn all that in college, I learned it in the ashram.
And I have been living there for 14 years in the ashram. It's,I wear every hat you can wear; I'm,
you know, I'm like the guy, the minister at the church that you see out there, pulling the weeds,
and then giving the sermon, and then, you know, after the sermon, like hanging out with you and
talking story, and then he's there at night, you know, cleaning the place. So I'm just,you know,
the resident acharya along with my wife, and it's a full life, and we fully committed to it for our
life's work, and we are so grateful that Faith committed to it and made it possible for us. So,
yeah, I know it's been a long morning already, so I just, I'll wrap it up for me.
Neighborhood relations have always been really important, and I see a lot of people from our
community here today. Faith has always emphasized to me since my first day at Konalani how
absolutely vital neighbor relations are, and so I look at each of them with a lot of love in my
heart, and I've made sure to extend my services to all the elders in our community to know that
I'm always there to lend a hand. In fact,just before this meeting I was sort of running around
trying to get some farm equipment to one neighbor, and yesterday I was helping another
neighbor with their bananas because, you know,the apple bananas are so big. Anyway, as well
as the little fire ant epidemic, I just took it upon myself because I saw Ho'omaluhia being
infested with them. I heard about cats and dogs, even one of the neighbors that are here today,
actually their dog has cataracts from the little fire ant epidemic. I took it upon myself to teach
everybody how to test. I contacted BIISC,Big Island Invasive Species Committee,told them,
you know, "Can we get and organize a workday here?" I offered the ashram as a home to that
workday every six weeks for—you know how long it takes for the little fire ants, it's like a one-
to two-year commitment. So it's a pretty big deal. Nobody else in the neighborhood was willing
to take that on. I always take that for granted, I'm like that's what I was taught to do, but then
when you actually ask people, you realize not everybody is going to do that. So for the next
couple of years, we'll be, you know,the home base for the little fire ant epidemic to get rid of it
on Ho`omaluhia, and little does Sea View know is that a big part of our work is actually
preventing them, the fire ants, from getting to Sea View. And so right now with the work we are
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doing, we can, we can rest assured they will not get to Sea View, which would have more houses
in danger.
So, leave it at that. And thank you guys for listening.
CARR SMITH: Thank you very much. So,you've seen that the Planning Director is
recommending favorable recommendations to the County Council subject to conditions, so—
F. STONE: I do, but the problem is—
HALL: [Inaudible]for approval.
CARR SMITH: I'm sorry?
HALL: Oh, no, I said approval because you said recommendation—
CARR SMITH: Oh, sorry. Conditions of approval.
F. STONE: Okay. And that is where we have a problem is that the conditions for approval, it's
almost like saying yes but no. And so if we could go through some of those things, I'd like to
start just with the beginning of our background packet. But I'm going to need Abhaya to—I
have some correspondences that I'll reference, and there is no page numbers in here—so I need
her to pass out the correspondence packet, the Judd Trail packet, the John Mauck packet is I
think the most important document that we have. So if we can just take a second to do that.
[The packets were distributed to the Commissioners.] I also have a packet—and we'll recycle all
of this.
CARR SMITH: Yeah, I'm not sure we are going to have an opportunity to read these things,
so—
F. STONE: No, I'm only going to pick out a little, like just a paragraph here or there. It's not, I
don't expect you to read. It's already in your packet.
CARR SMITH: Okay.
F. STONE: It's just that you, it will be impossible to find.
CARR SMITH: Okay, very good. So we are talking about both permits, or are we—
F. STONE: Yeah, we can start—
CARR SMITH: —focusing on the Special Permit or—
F. STONE: I thought I'd start with the SMA.
CARR SMITH: Okay.
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•
F. STONE: Because that's the way it is in order. Oh, I did have one quick question: Since Sorin
from John Mauck and Associates can't be here, will I be able to get a transcript to give him, our
attorney?
DARROW: Once it's available.
F. STONE: What's that?
DARROW: Once it's available.
F. STONE: Okay, that's fine. All right. So, I actually wanted to start with just some of the
background information because that will kind of help clarify things. So in the, your big packet,
just on the second page, if you just flip from the first page, it says, "Ashram Meditation Practice
three nights a week"; Monday is meditation, Thursday there is a smallhilosophy clas, and
Friday evenings is actually movie night, we just get together and watch�movie together,not
members can come or not. And in addition, we did talk with the neighbors about the three
weekly drop-in yoga classes in the morning. And if, we had offered that if traffic is a huge
concern, we would be willing to drop those. If we go—
CARR SMITH: Can you, do you mind referring to a Condition number when you are—
F. STONE: I'm not on the conditions yet. I'm just going over just a couple of general things.
CARR SMITH: Okay, very good,thanks.
F. STONE: Okay,the"Reason for the Request," it says that yoga ashrams are not pemitted uses
in the State Land Use, but actually church is permitted in State Land, in Ag land in the State.
Then we can skip ahead to, oh, on Condition, on the No. 8 where it say's about, "the permitted
dwelling on the property appears to have unpermitted additions attached,"that's not the case.
We, and, we just repurposed one pod to become a meditation room and additional bedrooms.
And we did apply for those after the fact to be done.
All right,now, if we go to the SMA, which I believe is No. 6—let's see—we really don't have
much there except that for the Judd Trail, on Page 5, it says that Nahona Partners paid for the
Judd Trail easements or they were supposed to pay for that,but if you turn to Page 15,there we
were talking with the State because Nahona Partners went out of business and nothing was being,
no progress was being made in the subdivision. We stepped forward and said we'll pay for all
eight easements and we'll also pay for the appraisal to be done for what that would cost, and we
did, and that was 2,800 dollars that we paid on January 11, 2005,to get those eight easements,
which if you flip forward, it talks about that again on Page 17—
DARROW: Where are you at, ma'am?
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F. STONE: In the Judd Trail. So I'll back up. On Page 15, it shows where it was not the
Nahona Partners. Seeing that there was no progress being made because the Nahona Partners
had gone out of business,we stepped forward to the State and said, can we do it, can we go
ahead and pay for all those appraisals to be done so we can get the Judd Trail so that not only
ourselves but eight,there are eight Judd Trail easements onto Ho`omaluhia Road, so we paid for
all of them. And then we also paid for the easements themselves, and that is on Page 17, and that
was for 1,255 dollars. After that, on Page 18 we got a perpetual non-exclusive easement for
roadway,utility and driveway access purposes, and it says all of that. And we thought we were
done. We thought not only had we paid for ours but we'd also paid for all our future
neighbors—the properties hadn't been sold yet—that we took care of that because Nahona
wasn't doing that. And that's kind of how neighbors look out for each other; if you are a good
neighbor, you try to help out. Then if you go forward onto Page 26—so we have a lengthy
history spanning many years with the Judd Trail—on Page 26, and this is in 2007 now,they said,
well, you can't have all eight easements because those property owners need to own their own.
So they gave us back the check, it's on the next page that, oh, not that one, they did refund us for
the other seven easements, and then we reapplied just for our own individual easement of 148.50,
and that's what's on the next page is that those were cashed. And then on Page 28, and that's
again in 2007, and remember we started this process in 2000, we were again, the Subject says,
"Perpetual, Non-Exclusive Easement for Roadway, Utility &Driveway ..." onto the Judd Trail.
We thought we were done. So then, come to present, and that's actually on Page 2, when we
applied for the permit,the special use permit, it was discovered that those,that SHPD had never
finished the approval. They needed to do the recommendation for how to preserve. Now,they
had given us a paper that said how we were supposed to do it, and we did that; we did gravel, we
didn't put any cement or anything like that, we respected everything that we were supposed to
do. However,the preservation plan was never put in place. And so that was when we found out,
when we did the Special Permit,that it's still not in place. This is 15 years later. So I have
talked to Candace and I have talked to Sean at SHPD, and we've contacted Na Ala Hele Trails.
And now they are working on it together. They had a meeting, and then they are working on it
together just, all they need to do is the preservation plan,that's the last step. In the meantime, I
don't think other property owners even were aware that there maybe was a Judd Trail or that
there was any preservation, so, not all, not all owners did that,kept with that. All right, so,there
is much more about the Judd Trail, but I think that shows that we've been earnestly working on it
for quite a long time.
All right, on Page 7, I'm sorry, of the yellow, yeah, it does say that the proposed development is
consistent with the County General Plan and all of those things, so, and we, we agree. We were
surprised that we had to do a Major SMA since SMAs are mostly coastal areas. We are not on
the coast,we are about a half a mile up. The archaeological we have, the Judd Trail is adjacent
to our property, not on our property, it's right next to our property. And the AIS had already said
that no further work needed to be'done,that there weren't important archaeological things.
However, we were told that we would not be able to apply for a special use permit without doing
the SMA, so we did it. We did a lot of research. We weren't able to get very much from the
County. I called O`ahu to get how it should be done, and they said, well,the first thing is that
you fill out a survey and then you submit that to the State, and then, or to the County, and then
they recommend whether it's a Minor, a small SMA, or a Major SMA. That never happened; it
was just decided for us. And I'm only mentioning that because I think this is—although John
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Maack and Associates are not Hawai`i attorneys, it is federal law—it's, specifically, he wrote the
federal RLUIPA law, which protects churches, and if you look at Page 1,the Background of
RLUIPA, it says that"Congress enacted RLUIPA unanimously to combat the widespread
municipal practice of using `individualized and discretionary processes to exclude churches...."
And a half way down the next page it says, "RLUIPA requires, among other things, that religious
and nonreligious assemblies [and institutions] be treated on equal terms," and that, I'm going to,
"RLUIPA further provides that a municipality may not substantially burden the exercise of
religion ...." So why I'm mentioning that is because things like SMA can be very costly. From
what we've found out,they can be anywhere from 10 to 40 thousand dollars, maybe more, I
don't know. [Addressing to Commissioner Vitousek]Do you know anything—I know that you
are familiar with archaeological things—do you know what an SMA, Major SMA could cost?
VITOUSEK: That's not an archaeological—
F. STONE: Okay, so you wouldn't know that, okay. At any rate, it was a big deal to us to have
to write it, and, but we did it. So,No. 4, it talks about the floodplain, and I'm going to turn to
Joe for this for a minute because we can't find that we are in a floodplain. We've been told that
we are not from the Kona side, and then the Planning Department is telling us we are.
EHINGER: Is there room on your desk for one more paper,I'm sorry, I'm sorry, look,I, you
know, I just—
HALL: Please, please speak into the mic.
EHINGER: Yeah, thank you. Yeah, so these are just four images that we put together that I
really thought would just help the floodplain concept be really clear and simple. So the top left
image is an overhead view of the current residence—yeah, I know the quality is a little poor,this
is from the original, sort of okay that we got on the floodplain like originally, so I just took that
picture from this original floodplain hazardous assessment report,which decided that—of
course, in that time 20 years ago we built an entire home with the, net full well knowing that the
tributary was there, and hence that's why the house is elevated four feet off the ground on
concrete pillars with the concrete surrounding those pillars actually, and extra support,that's
why we sloped the driveway to carry water away from the house,that's why we planted
vegetation, 30 mango trees, grass,bamboo, mauka of the house, and had drainage holes dug. So
in 20 years we've never had any water make it over the driveway in the Kaumalumalu Tributary.
That being said, you see just in each image, the Zone X designation, which, you know, earlier in
this today it was asked about and it came up earlier, and I believe it was Alex that said, well, I
mean the property is in the Zone X. And it was almost like a non-issue. And I was like, oh,
yeah,the Zone X is a non-issue. In fact,when I went to talk to Dion in Engineering right over
there, he sort of had trouble, he was like, why are you, why are you here? And I'm like, oh,
because the County said we were in a floodplain. He just kept looking at me like, you are in
Zone X. And I was like, I'm new to this,they must be more serious than that. He goes, no, I
mean, he's like, I don't have anything to tell you, you are in Zone X. And then I,so he said you
can call Bryce. So I called Bryce and talked to him on the phone. He had the same sort of
puzzled response. He just kept saying like, I don't understand, like,this is Zone X, what's the
problem? He said, well, you know, at very least you have to have your place elevated. And I go,
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yeah, it's elevated, it was already approved 20 years ago, it's four feet off the ground. He goes
okay. And I said, is there any note you need me to give to the Planning Commission when I talk
to them, like I just don't know what to tell them except for this is a non-issue. He said, let me
get back to you. That was about,that was in January. And so I've called and left voicemails
ever since then. I just assume no news was good news or non-issue.
So just to further the point,the top right image shows the portion of the ashram being considered
for the as-built permit dotted. You can see that the tributary itself does not intersect this portion
that's under consideration. Again,just another thing that I told Bryce and Dion, and neither of
them, they both said, yeah, that makes total sense.
But in any case,we go down to the bottom left image. This is the subdivision map that was used
I believe in sort of the Planning Commission's report that said, hey, it looks like your building is
in this tributary. That,that depiction of the tributary is significantly different than the depiction
given by the DLNR that we got online; you can see how it's like a wider swath than the DLNR's
like a thin line. Again, though, it's all Zone X, and there is just no way to get around that. And
so even when the tributary is larger, it just doesn't have an effect.
And then, last but not least is the bottom right picture. Finally, when I was zooming out to go
like, what does a real floodplain look like, what are people talking when they say you can't build
in a floodplain? You look across the street at Ho`omaluhia, and I go, oh,that's the kind of thing
that I was expecting to see. You see like a real legit floodplain with zoned AE and AEF that
actually have like a base flood elevation that you have to keep in consideration when you are
building, and it says obviously AE and AEF. You have to keep those areas free of
encroachments so that the one percent annual chance of flood can be carried through, right?
So those things just kept pointing us towards we don't understand what the floodplain issue
could be. Again, if it was already approved for the main house the way it was built 20 years ago
and it went right through the center of it,how could this affect the as-built portion, which it does
not touch, considering that this is actually a tributary and not an AE or AEF floodplain? So that
was what I came up with.
CARR SMITH: Okay, thanks.
EHINGER: Thanks.
F. STONE: Okay, if we stay on the SMA, the only other thing we wanted to know about No. 9,
which is the time, time extensions, and what is included within that. And we became more
curious about that, considering the previous applicant. And so, does that include, does that,
No. 9,the initial extension, is it, extensions for the permit, does that include the Judd Trail
easement and Ho`omalu? Because it's already been over 15 years on the Judd Trail, and we
don't think that Candace had told us, from DLNR, that they didn't think that they would finish
that recommendation within a year, and so that,nothing we can do about that. So we want to
make sure that easements are not part of that. We do have, we have filed a claim for easement
on Ho`omalu. It's in our title insurance that we have easement for ingress, egress, over and
across, so both sides of Ho`omalu,but we've been working on that already six months. It takes a
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while. At one point I thought I had found our easement for Ho`omalu, and showed that to
Christian and Candace,but they said, no, that's an easement for the Judd Trail. Then Candace
said,no, it's not, because the State owns the Judd Trail, and then Christian told me it's for the
land under the Judd Trail. But I contacted a real estate attorney, and he said there is no such
thing that easements are just on the surface. So all I'm trying to say is that this was brand new
news to us. With Ho`omalu, I could either, we could wrap up the SMA,because I could talk
about that separately on the other one,but we've been working on that very diligently, and—
CARR SMITH: So—
F. STONE: Mm-hmm.
CARR SMITH: just,just to be clear, so the issues that you have on the SMA are—
F. STONE: Only floodplain. We don't find that there is a floodplain.
CARR SMITH: The floodplain only, okay.
F. STONE: Yeah,that's it. And that the exten- if we can get clarification on how long is the
time, and can we get clarification that it would not include the easements? Because we don't
know how long that will take.
VITOUSEK: Is that Condition 4?
F. STONE: I think it's under 9 where it just time links and extensions. On the SMA one.
VITOUSEK: The floodplain portion is Condition 4. Is that right?
F. STONE: Oh,that's Condition 4, yes. Sorry.
VITOUSEK: Okay.' And so, is there a recommended change that you have to Condition 4?
F. STONE: Well, it's, there is no floodplain. That shouldn't be in there.
CARR SMITH: They are saying it's a tributary versus—
F. STONE: And that's what the Department of Public Works gave us.
KAY: Is it possible to address—
CARR SMITH: Yeah, why don't we have—
KAY: —how this came about?
CARR SMITH: —staff address those issues?
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KAY: Yeah, okay, first and foremost,the conditions that we add to permits are done largely
based on representations from the applicant, as well as comment letters we receive from agencies
that we consult. Those agencies implement other sections of law and code, and so we include
those as conditions of approval.
In the case of No. 4, and then there is an associated condition in the Special Permit—I'm not sure
which number that is—if you look at Planning Department Exhibit 15, from the Department of
Public Works, dated October 18, 2019, from Natalie Whitworth who was a Kona engineer from
DPW Engineering, she indicated that, "Although the subject property is located within Flood
Zone X as designated by the Flood Insurance Rate Map, Kaumalumalu Tributary Number 3 is
located within the property. If any of the current structures that are built above the
Kaumalumalu Tributary Number 3 are unpermitted and being as-built, those structures shall
comply with the requirements of Chapter 27–Floodplain Management–of the Hawai`i County
Code and may need to be brought up to current code requirements. Any additional
improvements in Kaumalumalu Tributary Number 3 will be subject to the requirements of
Chapter 27. A flood study may be required to determine base flood elevations of the
Kaumalumalu Tributary Number 3 as directed by the Department of Public Works." We further
looked at the applicant's deed, and recorded against the deed is the Kaumalumalu Tributary
Number 3 as was surveyed for the, for Subdivision No. 7022. So whereas the FIRM Map shows
just a line underneath the dwelling, the extent of the survey property as recorded against their
deed is that larger area; hence, "Any new or `as-built' building permits and
development/construction activities within the Kaumalumalu Tributary Number 3 as shown on
Subdivision Map No. 7022 shall conform to Chapter 27–Floodplain Management–of the
Hawaii County Code." So, again, came from DPW Engineering, the extent of which is recorded
against their deed as a reservation, and any building within that will have to meet the
requirements of Chapter 27. These are all functions that happen after they are granted their
Special Permit, and are added as kind of standard conditions of approval.
In terms of the time extension, No. 9,this is our standard administrative time extension
condition, lays out the conditions under which an applicant can get a time extension, and the
justification that they have to provide. Under Subsection D, it says, "The time extension granted
shall be for a period not to exceed the period originally granted for performance," for example, if
a condition is to be performed within a year, it may be extended for up to one additional year.
That's just an example. In the case of conditions of approval,those are those conditions that
have a time component, so for instance, construction needs to be completed within five years; if
they are not able to complete construction within five years,they can come and ask for an
administrative time extension for up to additional five years. Again, all very standard conditions
that we add to most, if not all, of our permits.
HALL: So, but none of these have time conditions—
KAY:
KAY: Yeah—
HALL: —because I don't see any-
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EXHIBIT E
KAY: You know, I apologize, there is one condition that says the applicant, its successor or
assigns shall comply with all conditions of the Special Permit; I believe that that's why I put it in
there. It may be superfluous at this point, and we can strike it out since there is nothing on this
one that's timed. But the same rationale and thought process goes for the Special Permit.
CARR SMITH: So I think what they were asking is if there will be a time extension or time
frame that has to do with the easement over the Judd Trail.
KAY: So because there is, there is no performance condition that's put in there, that's between
the applicant and the State relative to the Judd Trail. We have no idea how long that's going to
take. According to Land Division, it can take a year or longer, but that's something that is
between, was between Nahona Partners and the State,but is now, according to the Board of Land
and Natural Resources easement sale document, now any successors or assigns would be
required to comply with that. And so that's the hold-off I think with those Judd Trail easements,
is that SHPD is still determining what those preservation requirements are going to be, and the
applicant would need to comply with those before they can have legal access across the Judd
Trail.
CARR SMITH: Does that make sense?
F. STONE: So o it tells me that the easement is not,we are, we are not given any conditions,
that's great.
CARR SMITH: Because I think the County sees your access through the subdivision, right?
F. STONE: Both. We still see it as both, but we'll address that in a minute.
VITOUSEK: Going back to the flood—
F. STONE: Yes.
VITOUSEK: —issue. So, hearing that,you know,there is something coming from the County
DPW Engineering that any as-built structures within the area need to comply with the Chapter
27, do those structures comply with Chapter 27?
F. STONE: On what we show is that the tributary, which is also on your map here, it's straight
under the original permitted building, and we did comply with everything.
VITOUSEK: So the-I guess the question for both—the unpermitted yoga deck, does that
comply, as far as anybody knows,with the standard—
F. STONE: We think it does because it's not near there.
KAY: Based on our conversations with Building Division, they would need to come in for an
as-built permit, and those-
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VITOUSEK: In order to determine—
KAY: In order to determine whether or not that's required. So, in reference to the map in front
of you,I submitted that map to the applicant; I created that map, which I overlaid their site plan
on the subdivision map, which showed the extent of the tributary. This was done a couple of
weeks ago where I sent it to them just to let them know, hey, by the way, where you are
proposing your new temple facility is smack in the middle of the tributary as is recorded against
your deed, you may want to reconsider locating it elsewhere on your property since you have
land area to do so. So I was just doing it as a heads-up to the applicant relative to that section.
Yeah, so in terms of the, back to the Judd Trail, essentially what we are saying right now, and
there is a condition of approval in the Special Permit,which I'm sure we'll get to,basically
limiting access to their existing legal access on Sea View. And in the background and
recommendation, we said if they are able to substantiate in the future legal access from the other
way, then they can come in and amend their permit.
F. STONE: But it's not access. It's, it's not talking about easements. We had discussed with
Christian before that we don't have the easement,we are working on it. It's, we don't think it's
through any fault of our own on either of the cases,but, and it's uncontested. And not only
should it, if it has to apply,not only to us but seven other properties. So we have been working
on trying to secure the easement for all eight properties because none of them have it. Eight
properties are legally landlocked by the Judd Trail. However, all of those people have been
using Ho`omaluhia for, since they bought the property, which could be 20 years, continuously.
So the condition that was put on us—and here, I'm going to need to go to the correspondence,
sorry—was that essentially we are not allowed to set foot on Ho`omaluhia, and that would be
considered a violation of our permit and our permit could be revoked. That seems kind of
extreme since it's also our mail, it's our legal address, it's where our taxes come, it's where we
get our propane gas for cooking and showers, and all our deliveries,UPS. We have to go down
the street to get the mail;we are blocked from our US Mail. So we thought that was very
unreasonable. We don't, we understand if you want to say, you don't have it yet—we even
proposed that we do an escrow—and say, okay,we are working on this and we won't,they won't
be recorded to our deed until we complete it; however, we need to be able to use our road. And
so, it's called an escrow and it's really common in real estate things. But when I spoke with
Candace at DLNR, she said, "Christian said absolutely not."
So, but, in correspondences, and so if you can go on the Correspondence book to Page 38—I
doubt that you've all had a chance to read this, whole packet is over 600 pages—
VAN PERNIS: Let me, let me interrupt you, ma'am. Do you happen to have a right of an
easement over Ho`omaluhia Road? That's a private road.
F. STONE: Yeah, we are part of the private road. We've been paying membership for 20
years—
VAN PERNIS: Do you have a-
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F. STONE: —we've paid over 21,000—
VAN PERNIS: —a documented ease—
F. STONE: Yes, we do, our warranty deed shows, not,the warranty deed for the subdivision
names our TMK as one of the owners of the property. It's all in your packet.
VAN PERNIS: Did you submit that to the County?
F. STONE: Yes.
VAN PERNIS: Okay, thank you.
F. STONE: I did give that to the County.
VAN PERNIS: Let me ask you a few other questions.
F. STONE: Okay.
VAN PERNIS: Commercial kitchen, do you now or in the future plan on using a kitchen to
prepare food for the public outside of the ashram?
F. STONE: No, only for the retreat participants. And right now the way we get around that is
when we have meals, we do potluck, which churches do all the time.
VAN PERNIS: So you are willing to agree to a condition that the commercial—
F. STONE: We already, yeah, we already—
VAN PERNIS: Let me finish, please—
F. STONE: —have said that—
VAN PERNIS: —please—
F. STONE: I'm answering your question—
VAN PERNIS: —don't interrupt.
F. STONE: Excuse me?
VAN PERNIS: Are you willing to agree to a condition that a commercial—
F. STONE: Yes—
VAN PERNIS: —commercial kitchen not provide any food outside of the subject-
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EXHIBIT E
F. STONE: Yes—
VAN PERNIS: —property? All right. Secondly, do you charge for any services—
F.
STONE: We do. Churches do;they charge for bible camp,they charge for adult day care,
they charge for child day care,they charge for schools and preschools. They have to pay their
ministers and their maintenance people. Yes.
VAN PERNIS: And these are all services provided on the property? Adult day care and—
F. STONE: We don't do that. We were just saying—
VAN PERNIS: I'm just asking you—
F. STONE: —churches do that—
VAN PERNIS: —the things on your property, what you charge for.
F. STONE: We charge for yoga instruction when people come and stay for three weeks. We
charge to teach them, and it is part of our religious practices.
VAN PERNIS: How about—
F. STONE: Buddhist retreats across the country—
VAN PERNIS: —how about people who live there? Like fees—
F. STONE: They don't pay anything.
VAN PERNIS: Okay.
F. STONE: They get a really modest salary, as most people that work for churches do.
VAN PERNIS: Okay, and—
F. STONE: Or non-profits even.
VAN PERNIS: —how much do you charge for people stay there for,I think you said three
weeks?
F. STONE: It varies depending, we do work study and things like that.
VAN PERNIS: And what's the range?
F. STONE: I don't think I need to answer that question.
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EXHIBIT E
CARR SMITH: Yeah,I don't think that this is relative, Mark, I'm sorry.
VAN PERNIS: I think it's relevant because—
CARR SMITH: I don't. And I'd like to—
VAN PERNIS: When you see her questions—
CARR SMITH: —keep moving along.
VAN PERNIS: —her questions are, can she practice her religion? And construction. Answer,
yes, of course you can—
F. STONE: But the County has told us we can't.
VAN PERNIS: —and one of the conditions is that the public functions, having the public come
to the property or inviting the public to the property must cease while you are meeting the
conditions, right?
F. STONE: And that is actually against federal law. That's against federal law to do that.
VAN PERNIS: That's your opinion.
F. STONE: No, it's not my opinion.
VAN PERNIS: And in my opinion,Mr. Mauck does not—
F. STONE: Mr. Mauck wrote the federal law—
VAN PERNIS: —in any way say that.
CARR SMITH: Mr. Van Perris, I'm sorry—
VAN PERNIS: I think that I am asking an important question. You intend to not comply with
the conditions because of what Mr. Mauck says.
F. STONE: We only contracted with Mr. Mauck about a month ago,two months ago. I've been
talking to them, and we actually hired them to represent us—
,
VAN PERNIS: Do you intend to—
F. STONE: —three months ago.
VAN PERNIS: —not comply with all the conditions—
• 22
EXHIBIT E
F. STONE: I intend to not comply—
VAN PERNIS: —because of the so-called—
F. STONE: —with ones that are in violation of federal law—
VAN PERNIS: Can I finish my question first? Do you intend not to comply with conditions on
your interpretation of this federal law?
F. STONE: I, I can't answer these questions because they are ridiculous.
CARR SMITH: Okay, I would like to move along because I don't think that's where we are; we
are trying to systematically go through objections—
VAN PERNIS: [Inaudible.]
CARR SMITH: Excuse me,please don't interrupt me. Thank you. So I'd like to move along to
the conditions on the Special Permit.
F. STONE: Okay.
•
CARR SMITH: So we can understand where we are not on the same page.
F. STONE: All right, on Page 13,just reinforcing Planning Department view that the proposed
use is not contrary to the objectives sought to be accomplished in coastal zone management, and
we'll not have an adverse impact on traditional Hawaiian rights that is important to us.
KEALOHA: What are we on right now?
F. STONE: The Special Permit, yeah, on Page 13.
CARR SMITH: So far you commented on the things you agree with, right?
F. STONE: That's what we are about to do.
CARR SMITH: Okay.
F. STONE: And both of those on 13,they are saying that,what it says to me is that we fit in
perfectly in what does, land is supposed to be used for.
CARR SMITH: Right, okay.
F. STONE: Okay. Then on Page 15, on No. 2,No. 1 and 2,we are fine with those as the
conditions of approval.
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EXHIBIT E
We did want to double-check on No. 3,the extension, if that is up to ten years, I think that we
can do that. We do need to fundraise to be able to build, but I think that if we have, if I
understand it, if we have five years with potential for extra five years, I think we can do that.
What we have a problem with is No. 4, "Prior to resumption of public activities on the property
and within the proposed Residential Yoga Ashram,the applicant shall secure change of use and
`as-built' building permits and be granted a Certificate of Occupancy meeting with the
requirements of the Department of Public Works [Building Division and/or] as articulated...,"
blah, blah, blah. And, so we think those refer to two things in the RLUIPA law. One is that it's
substantial burden; Certificate of Occupancy means you can't live there while you are doing
those things, you cannot live in a building, you cannot occupy a building until you have a
Certificate of Occupancy. So that means, in order to comply with that request,we would have to
move out of the residential ashram and do those things. And it's also, it says "prior,"because the
prior, it starts with prior. Also, "change of use,"I have a sheet on that—I'll see if I can find that
one, sorry, I have so many papers—well, I can kind of cover it, if again you go to the
Correspondence on Page 79, and so, on Page 79 of the Correspondence, you'll see a couple of
charts. And, so I did not send this letter,but I wrote it: "Hi Christian. Can you help me
understand something? SGRY has applied for a Special Permit to be a church in Ag zoning,
which is clearly allowed under the County of Hawaii Permitted Use Table." I also printed that
out, and you can see that it has churches, and then if you go over, it has "Residential &
Agriculture,"they are allowed with a Special Permit. It has "Family Agriculture" and
"Agriculture," and "Interior[sic]Agriculture." So churches are permitted in all agricultural
zones with a special use permit. Okay, then on January 22"d, I received an email from Mr. Kay
saying, "Aloha Faith, Please see the attached comment memo from the Department of Public
Works-Building Division confirming that our County Code requires a change of use permit to an
R-2 (Monastery) occupancy to accommodate your request to be recognized as a residential yoga
ashram." Okay, and then Number"3) Then is correspondence with John Mauck and Associates"
in response to a FOIA"request, Freedom of Information Act; it says, "Please be aware, except
for telecommunications towers,the Planning Commission does not grant Use Permits in
agricultural zones. Use permits are intended for uses in Urban zoning designations. In other
words: Change your permit from a church in Ag zoning (a permitted use)to a Change of Use
permit which is not a permitted use. ... No,thank you, ... This position still denies that we are a
church. I think it is a violation of federal law, suggesting that we take a path that leads to us
being shut down as a church. That doesn't seem particularly helpful. And I think I can see the
next step after that. There is a Baptist church in Oceanview that changed their Ag zoning to
Commercial. They still don't have their special use permit and hold Sunday service in a carport.
I don't think we can make it that far." So we are being asked to do something that immediately
bounces us out.
KAY: Madam Chair—
CARR SMITH: Can I get, can you clarify,please?
KAY: Yeah, if I may clarify. I think,unfortunately, there is some understanding of, a lot of the
permitting sounds the same but it's not. A Special Permit will grant the land use. Churches are
permitted in the Ag district,provided they get a Special Permit,which the Director is approving,
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EXHIBIT E
or recommending approval to right now. Change of Use Permits are a building permit process
where if you are changing the use from what is currently permitted as a residence, which is, R-3
occupancy is something that's non-residential, which are other R occupancies,that's a building
P Y P
permit process that happens after the Special Permit is granted. I responded to the Freedom of
Information request where the applicant's attorney was asking for all Use Permits in the State
Land Use Agricultural Districts: Use Permits, with exception of those for telecommunications
facilities, are for the State Land Use Urban District. A Use Permit and a Change of Use Permit
are two very different things; Change of Use Permit is a building permit that's regulated by the
Building Division of the Department of Public Works. So I think what's going on here is there is
a lot of misunderstanding, unfortunately, of the permitting process. Throughout the process
we've been attempting to provide written advice to the applicant on what they are likely to
encounter after their Special, if the Special Permit was approved,what other permitting
processes they would have to go through in order to effectuate their permit. And that's where we
are at this point. I, we've done our best to try and communicate that effectively. So that's where
we are at.
F. STONE: Unfortunately—
VAN PERNIS: [Inaudible]that—
F. STONE: —that would, unfortunately—
CARR SMITH: Excuse me, excuse me—
VAN PERNIS: —up to five unrelated people—
F. STONE: —unfortunately—
VAN PERNIS: —could live in a residence, so her statements that said the people had to move
out aren't true.
F. STONE: No,they are not untrue.
CARR SMITH: Okay, so, it seems to me—Christian, can you confirm they do not have to move
off of the property while they are waiting for their Special Permit to be completed?
KAY: I, I think, as a practical matter,probably not, but I believe they should probably speak
with the Department of Public Works, Building Division. It is currently, the structure is
currently permitted as a three-bedroom single-family dwelling.
CARR SMITH: So they can use it that way, correct?
KAY: So, I'm not sure, Jessica used to work for Building Division, and we were having
conversations about that, and she suggested that the applicant speak with them. And in our last
response to them, I suggested that the applicant speak with Public Works.'It was not the
intention of the condition to eliminate their possibility of living on the property while they are
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EXHIBIT E
going through their change of use permit. If it turns out that the language does that, it was
unintentional, and we can amend that as necessary before, if it's approved. What this is saying
is, "Prior to resumption of public activities on the property ... the applicant shall secure change
of use and `as-built' building permits and be granted a Certificate of Occupancy" for the new
use, for the non-residential use. And I think that's, again, maybe just lost in translation. Where
we were concerned is—and what we do with other church Special Permits is, especially those
that are wanting to operate within dwelling that's permitted as a residence, they have to go
through that process. We have consistently required those of other Special Permits. So I just, I
think what I want to lay out is we are treating this applicant like we would treat any other
applicant for a Special Permit for a church.
F. STONE: We disagree with that. If you go to Page 77, so we questioned the need in the
correspondence, so on Page 77, it's a summary of residential churches,which if you've read your
packet, it's 600 pages, there's probably a dozen times where Christian tells us there is no such
thing as a residential church in the county; however, I,worked as a research assistant for Sorin
from John Mauck and Associates,too,plus we've been doing our own research, and so this letter
says there are"over 40 churches on the Big Island that have a residence for the priest, minister,
reverend... We are still looking. There are even more but this should be a pretty solid
representation of exactly what we are trying to do." Church residences on 1/23/2020, "Every
Catholic Church in Hawai`i has a rectory for the priest or pastor. I spoke with Vince Vernay
from the Catholic Diocese. He said it is the home for the priest and a normal residence,not a
commercial building. When I asked him if it was residential or commercial, he was surprised.
He said–Well, none of it is commercial, we are a non-profit Church. This is an issue that has
come up repeatedly with the County: Christian said for lack of a better word we call you
commercial–we say we are not commercial;we are a church. The County says [They say] they
have no building code for that. Berkley said–Of course they do, it's called a church." And then
I went on talking to Vince and, "I said I was referring more to the building itself and he
volunteered: The Church usually builds the rectory with 2 bedrooms,that way the church can
accommodate visiting priests or deacons who can also serve for mass when the Pastor is on
vacation. He said most of them are located right on the church grounds but sometimes they need
to have the priest residence on a separate property due to space availability. Even if the priest's
home is built off of the public church facility, it is still part of the church." And 1/24/2020, "I.
visited Rev. Jiko Nakade, who is the reverend for Daifukuji Soto Mission in Kealakekua, which,
is one of the many Japanese Buddhist temples on the Big Island. She was willing to talk to me
about how their temples work. She said that the reverend has a residence home on the property
of every Japanese Buddhist temple on the Big Island. She said occasionally they are attached to
the temple but usually they are a separate home. I asked her if the residences were considered
commercial or residential. This stopped her as it did with the Catholic church. She said–
nothing is commercial, it is a church. I explained that I was helping the Yoga Ashram (she knew
about [of] us) and was working with the County but that they did not seem to understand
residences being part of the church. I said that they are looking more in terms of building codes
and that it is much more expensive to build commercially. She said that it is just a normal house.
She also told me that Christ Church, an Episcopal church,just down the road in Kealakekua,just
added a minister residence to their church. It also is just a normal residence."
VAN PERNIS: Could you tell me who your church pastor is?
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EXHIBIT E
F. STONE: I grew up Catholic, and I was able to ask them—
VAN PERNIS: No,who is your church pastor—
F. STONE: I—
VAN PERNIS: —your church pastor at your place—
F. STONE: Is this appropriate?
VAN PERNIS: Is it you, or is it everybody you said you have living there?
F. STONE: These seem to be very off subject, and I'm not really sure how to answer them.
CARR SMITH: That's fine, you don't have to answer that. Do you understand—
F. STONE: I didn't quite finish that letter.
CARR SMITH: Do you understand, though? I think we get the gist of it. I think that everything
that you've explained in that probably started as a church, not? And—
F. STONE: No.
CARR SMITH: Okay.
F. STONE: You can, you can build a temple first, and then—
CARR SMITH: Okay, I think we understand—
F. STONE: —the house, or you can do it the other way.
CARR SMITH: —that these churches all have residence—
KEALOHA: Can I ask a question, please—
CARR SMITH: —and that's fine.
KEALOHA: —to clarify something?
KAY: Sure.
KEALOHA: Okay, so,the residence was approved and permitted.
F. STONE: Mm-hmm.
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EXHIBIT E
KAY: As a single-family dwelling—
KEALOHA: As a single-family dwelling.
KAY: Correct.
KEALOHA: What's—
F. STONE: That's all we need.
KEALOHA: What's requesting an as-built is ashram that's attached to the residence.
F. STONE: No, only the deck.
KEALOHA: Only the deck.
KAY: If—
KEALOHA: So all we are talking about is approval of the deck, which doesn't prohibit the
home.
KAY: There's a few other things. Based on, based on the applicant's application, as well as the
as-built building permits that came in—
KEALOHA: Right, but, additional buildings and so forth—
KAY: Right,the additional bedrooms, the as-built deck—
KEALOHA: —but the home was approved.
KAY: The home was approved as a residence.
KEALOHA: Correct.
KAY: Correct.
KEALOHA: So you are asking for the non-residential use—
KAY: 'Public Works in their memo to us indicated that based on review of the application and
their permits,that these type of change of use would be required. So I—
VITOUSEK: Is that for the whole building?
KAY: That is for sections of the building. The issue with this one is, again, "Prior to resumption
of public activities." I think were the activities within the structure or around the yoga deck to be
just for those who live in the structure,those probably wouldn't be a problem or an issue, but as
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EXHIBIT E
was represented by the applicant,they are bringing the public, members of their church, into the
sanctuary area to practice,so that's, at this point, like any other church,they would have to build
to that code for public health and safety prior to operating public activities within the structure.
That's all this is saying. Again, being very consistent with other churches that we've done
Special Permits for.
F. STONE: So what we were saying is we want to use it just as a residence, and that we were
building the facility for the public. We do have nine members. I don't think members are the
public, and neither does federal church law. Two of those members are myself and my husband.
Those members are church teachers;they are not somebody off the street. We consider the
public, if you go to a restaurant, if you go to a movie theater,that's public. These are members
that have been members for a long time. And we don't, we did cease and desist, we don't have
anything open to the public. And I should let you know this is really we've made a mountain out
of a mole hill, because our public is those three to ten people coming for yoga classes. We are
not the kind, yoga ashrams and the yoga practice is not the kind of two,three, four, six hundred
people on a Sunday; it's really small, it's really small. Half of our membership is here today,
there's seven of us here.
CARR SMITH: All right. Mr. Vitousek.
VITOUSEK: I just, it just seems to me like we are way closer than it appears to an agreement on
these things, you know? 'I think that the conditions for—
F. STONE: The change of use is our biggest obstacle.
VITOUSEK: And then for me just trying to further understand that,the change of use applies
only to the—
F. STONE: The residence.
VITOUSEK: —as-built.
F. STONE: Right.
VITOUSEK: Is that right? Am I getting that right?
F. STONE: They are already permitted as built.
KAY: If I may, I'm going to ask Jessica to address that—
VITOUSEK: Sure.
KAY: —given that she worked for Building Division. She would be able to more intelligently
address it.
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EXHIBIT E
ANDREWS: Yeah, so, I've worked with Building Code for many years, and so I can address the
question of change of use. What was your question specifically?
VITOUSEK: The question is, so, let's see,we've got the existing permitted residence here,
single-family residence or whatever you want to call it, and then we've got this unpermitted yoga
deck and that's an as-built, right? So, is the condition saying there's no public use of this as-built
yoga deck until the change of use is completed only for this yoga deck? Am I right?
ANDREWS: Well, if the yoga deck is intended to be used for the purposes of yoga instruction
for the ashram, then it's not technically, it likely wouldn't be considered a single-family
residence,which is strictly—
F. STONE: It's not.
ANDREWS: —just R-3, right?
F. STONE: It's not intended.
VITOUSEK: Okay—
ANDREWS: So if, so that would be the, it will be up to the Building Division to assess, I mean
this is something that would be, it will play out during the building permit process. So I think
what the, the change of use, the question specifically of change of use—
VITOUSEK: Yeah.
ANDREWS: —that is if you have a residence and you want to change an office to a bedroom,
that's a change of use, that requires actually a permit. It's not, it's not only residential to
commercial; it's a pretty broad term that applies to just your changing the use of a space from
what it was originally permitted for.
VITOUSEK: So in this case, the change of use applies only to the as-built. Is that right? Or
does it apply to the entire building?
ANDREWS: Well, the as-built has never been permitted,right? So it's, you are trying to
establish use. So it's, in the eyes of, you know, of the reviewer of the Building Division, it ,
would just be a new,new construction.
VITOUSEK: So basically, what you are looking at is a change of use on this existing use as a
single-family dwelling to a church. Is that right?
ANDREWS: Yes, if that's how it's presented through the building permit process,that's how it
would be reviewed:
VITOUSEK: Okay, so the existing designation of this building is as a single-family residence.
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EXHIBIT E
F. STONE: Right, and that's enough,just like it is with a rectory for the priest,the parish house,
all the Japanese temples that have a residence for their minister. That's all we are asking for.
It's not for the public.
VITOUSEK: So, again, you know, on that question, are those, in that example, you know, I
know a lot of examples of where there is a residence on the campus of a church, is that classified
in the same way?
ANDREWS: So I've actually reviewed building permits for a pastor,the building of a pastor on
Buddhist temples on this island, I've actually permitted them. And there are three, because it's a
single-family residence, but it's not used for any church functions. They are permitted as the
single-family residence, for a pastoral residence.
VAN PERNIS: As single-family—
F. STONE: That's what we are asking for.
VAN PERNIS: —residence for the pastor—
ANDREWS: Yes.
VAN PERNIS: —right? Not for everybody's, but just for the pastor.
KAY: So what—
F. STONE: Right. Agree.
KAY: —the details this gets into is of the other portion of the dwelling that was permitted
originally as an exercise room or family, an exercise room, has been converted into a shrine or a
worship area. That's where members of the church come and do meditation practice and other
types of uses that is public use of a dwelling that changes that use to now not a single-family
residence or pastor's residence, but now something that you are bringing the public into. It gets
into the nitty-gritty, but that's the comment letter that we received from Public Works, Building
Division. We incorporated that into the condition of approval. We offer some flexibility in this;
if you read the language, it says, "the applicant shall secure change of use and `as-built' building
permits and be granted a CO [Certificate of Occupancy] meeting with the requirements of the
Department of Public Works [Building Division] and/or as articulated in Building Division's
December 27, 2019 memo[random]." So that's saying is that if they change their proposal and
they no longer have public use within that structure,then they likely won't have'to-get a change
of use from residential to non-residential. So we are trying to allow for some flexibility there,
but based on what was represented to us and based on the as-built building plans, we got the
comment letter from Public Works.
VITOUSEK: So if you decide that you want your single-family residence to remain entirely as a
single-family residence with no change of use, and you want to plan your church activities on the
new building that's coming in and the as-built deck, which is going in, in that case,they have the
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existing single-family residence, not changing, they don't need to change the use, the change of
use would happen in the newly constructed areas and the as-built areas.
KAY: The newly constructed areas wouldn't require a change of use;they would just be
permitted as non-residential. What the applicant has represented, it said until such time as the
new structure is built, there will be no public activity; in the same breath,they said, however
we'd like to still maintain our meditation practice on the property in the meantime. So that's
what we are trying to address is that"meantime." There is some disagreement in whether or not
members of the church are members of the public;the way the County sees it is if they do not
reside on the property, they are members of the public.
VAN PERNIS: [Inaudible.]
CARR SMITH: Microphone.
VAN PERNIS: Members of the public stay off until the new structures are permitted.
KAY: That's what was represented by the applicant.
VAN PERNIS: Okay. And, do I understand the applicant were complied with that condition?
F. STONE: We already did. We ceased and desisted.
VAN PERNIS: No public activity on the property until the—
F. STONE: We already did.
VAN PERNIS: And you are not going to argue that the inapplicable federal law somehow
supersedes that?
F. STONE: No, I'm always going to argue that federal law supersedes County zoning and
regulations.
VAN PERNIS: Well, I can just tell you that it doesn't, and you are—
F. STONE: It does.
VAN PERNIS: —invited to go to court and try to get that ruled—
F. STONE: And that's where we'll—
VAN PERNIS: —you will fail.
F. STONE: —end up, if we can't agree.
VITOUSEK: So, but, again,just trying to bring it back to-
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F. STONE: What you said is right—
VITOUSEK: —solving the issue here—
F. STONE: —you said right, what you said is right.
VITOUSEK: —so you guys, you know, if it's something that we can work out, because the
change of use and all that is a building permit issue;not a Planning Commission issue, so you
guys can work it out with them on the design and the layout of your residential versus religious
uses of the property—
F. STONE: Exactly, exactly.
VITOUSEK: —outside of the jurisdiction of our commission so we can move forward with the
application,the Special Management Area Permit—is there a question?
F. STONE: I, I'd rather, because we haven't had a chance to discuss, and I don't know what
he's going to say and he's not as familiar with church law as I am, I'd rather—
VITOUSEK: Okay.
F. STONE: —consult first. 'I do just want to point out on Page 4 of the John Mauck and
Associates in the second paragraph, and I can just read it so you,don't have to try to find it,
"Finally, the fact that Church also uses its property to house its ministers is typical of many
religious assemblies across the country and in Hawai`i. Both today and historically, religious
assemblies maintain living quarters for their clergy such as rectories,parsonages,parish houses,
or the like." Now,the one thing that we did ask is that we be able to, we have a meditation
room, it's a normal room but we filled it with buddhas and gods and goddesses and paintings, all
sacred art, it's a sacred space, we have nine members from the public that we like to meditate
together on Monday nights—and actually, I shouldn't even call them "from the public";two of
them are my husband and I, we started the ashram, and then there are seven others who are
longtime teachers. I'm talking seven, ten,twelve, 15, 20 years. We don't consider them the
public. We want to get together just, if you wanted to have a card game or if I had Girl Scouts, I
don't need a Special Permit to have my Girl Scouts to come over. That's just your freedom to
assemble, which is the Fourteenth Amendment, and also the First Amendment, which is freedom
to practice your religion.
VAN PERMS: Your Girl Scouts don't live at the ashram.
F. STONE: What did you say? You seem very nasty and hostile.
VAN PERNIS: Your Girl Scouts may come and have their troop meetings, but they don't live
there overnight.
F. STONE: Nor do the people that come and meditate with us once a week.
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VAN PERNIS: Like your husband.
F. STONE: Exactly.
VAN PERNIS: He doesn't live there.
F. STONE: No, we don't live there. We are trying to retire. We founded the ashram. We
bought it in 1999. My husband is now 72. I'm 65. We are trying to retire and turn it over to
these two wonderful people. So we go over on Monday night and teach.
VAN PERNIS: So your violation of 20 years means nothing.
F. STONE: It's not a violation. If you read the John Mauck, it's just that we need to get—
VAN PERNIS: I have read it in detail—
F. STONE: —a special use permit.
VAN PERNIS: —and it does not apply. We are not—
HALL: Commissioner—
VAN PERNIS: —church—
HALL: Commissioner Van Pernis—
F. STONE: I consider him hostile. This man is hostile.
HALL: Hold on one second. Commissioner Van Pernis, this is not an adversarial process. We
are processing a permit. You are not here to attack applicants;we are here to discuss what is
before us, which is two applications with conditions. So if you are not going to act in a civil
manner, we are going to ask you to leave.
VAN PERNIS: [Inaudible]out of order.
CARR SMITH: Sony? What was your response?
VAN PERNIS: I think—
CARR SMITH: Could you use your microphone?
VAN PERNIS: —I think this is a condition she does not intend to—
CARR SMITH: Use your microphone, if you are going to speak.
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VAN PERNIS: If she doesn't intend to comply with the conditions for whatever reason—
F. STONE: Because they are illegal.
VAN PERNIS: —that's something we should know.
CARR SMITH: Okay, I think we are all good, we are working through these conditions.
Okay—
F. STONE: Okay, so that was No. 4. And also,the two laws in the federal law that apply to this
are,to do the change of occupancy, which maybe we are beyond that and if we don't have to do
that,that's fabulous, we are just about done, reply to that it would be a substantial burden to do
that. Also, equal treatment is another condition of the federal church law that just means if you
have one church that has a residence and a public facility, then you have to honor that for any
other church, and I've shown 40. And that's not,that's, there is more.
VITOUSEK: And I don't think anybody is questioning that from the Planning Department, from
the Planning Commission. We recognize it, you know,that's a standard practice, and they are
just trying to follow the administrative process in order to make it work within the system, so to
speak—
F. STONE: Okay.
VITOUSEK: —so I think the generality is everybody is okay with the concept—
F. STONE: Great.
VITOUSEK: —of having a church and a home in the same environment—
F. STONE: Fantastic.
VITOUSEK: —it's just trying to, you know,work that in with the system that we have.
F. STONE: Okay, great.
VITOUSEK: Right?
F. STONE: No. 6,the "Vehicular access to the subject property shall be limited to Sea View
Circle. All driveway connections to Sea View Circle and any work within the County
Right-of-Way shall conform to [Chapter] 22 ..."with that code. We have been told—so, now
I'm going to switch over, if I could, for some of the explanations. This is the one that starts with,
"Hi Christian, I received your responses"—is that it?
CARR SMITH: Which Condition is this referring to?
F. STONE: The ones that we were contesting.
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KAY: No. 6.
CARR SMITH: No. 6.
KAY: No. 6 of the Special Permit.
CARR SMITH: Didn't we,haven't we discussed the access already?
F. STONE: No. Because—all right, so,No. 1,No. 2—
CARR SMITH: I believe we determined that you are in the process of working on the easement.
F. STONE: Right.
CARR SMITH: But until you have that in place, it's not recognized as an access—
F. STONE: However—
CARR SMITH: —by the County.
F. STONE: —we have been, twice, we have been written by the County that, because it is our
• legal address, because it's where we get our mail—
CARR SMITH: I understand that—
F. STONE: —because of the extreme hardships that we would be able to use it residentially, and
then just in the conditions of approval,we were told that we cannot. And that puts us in a
difficult position with our neighbors because when we worked with the Sea View neighbors,
even though the traffic study will show that there's on average on weekdays 15 cars on the
bottom of our, on our dead-end that pass through,there is 1,770 at the top. We sat in a car,
recorded it and measured that, so at the top of Sea View Circle, 1,770 cars go by that first house.
If you come down to the first letter of complaint we got, which was addressed traffic, there are
400 and 50 or 60 cars that go by there every day. Of those eight go to the yoga ashram, of those
420. When you get down to where the road Ts, 167 cars go by that Alan and Tisa's house, and
then when they turn,there's 15. But I told, I asked Joe,would you please just double-check on
Saturdays because Saturdays were when we had the public yoga class and maybe ten people
would come in season, much less than that other than this wintertime. So he did, and he
measured 45 cars on a Saturday, and of those two were coming to the ashram. That was when
we did, we stopped all public classes. So prior to that, on a Saturday if there was 45,there might
have been 65 because ten cars coming and going. The ashram uses less, it has the same, less
traffic than what is a single-family residence according to national standards, which is ten to 20
trips per day. So,we were trying to work with the neighbors,though, and say that, fine, if you
don't want the yoga class, we can use the other side and just use this for residence. We, and
Christian had recommended that we do a meeting with neighbors to tell them what we are up to,
get to know them, see what their concerns are. So we took that advice;we do have a poster, and
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EXHIBIT E
we sent it out to the neighborhood and invited everybody to come and talk about their concerns.
We told them that if there was one problem that we have, it could be just ignorance; we didn't
know that it was bothering them. And there, if I can refer you to the traffic packet—sorry, it's
stapled—it shows that, or I can tell you—oh, that was that one—and it's in your packet as well.
VITOUSEK: Mind if I ask a question?
F. STONE: Mm-hmm.
VITOUSEK: So, if Condition 6 were to say, "Vehicular access for public use of the subject
property shall be limited to Sea View Circle...?"
F. STONE: That would be okay, but we have to explain that to the neighbors because the
commitment we've made to them was residents only, and even though we are not offering any
public yoga classes and don't intend to,that was our commitment. So we tried to explain that. I
actually sent a letter to all the neighbors, and said, oh—well, let me back up a little bit, because
after—
VITOUSEK: But, actually, if I just finish that thought there—
F. STONE: Yeah, go ahead, okay.
VITOUSEK: —so the reason behind that, so what we are regulating with the Special Permit is
the non-residential use, right?
F. STONE: Mm-hmm.
VITOUSEK: So for us to say that we are regulating vehicular access for the public use, which is
what we have the authority to regulate, we are not saying anything in there about allowing access
over the Judd Trail or anything like that.
F. STONE: He does.
VITOUSEK: Well, I mean what—
F. STONE: We could change it.
VITOUSEK: —what I,that's what I'm suggesting here is that we change this here so we are not
saying anything specifically about the Judd Trail, because that's—
F. STONE: It does, it does.
VITOUSEK: —outside the purview of our, of our role as Planning Commission,to regulate the
access for residential uses. When you look up and down that road and if every single one of
those residential lots is using that access,that's something that's bigger than just you guys.
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EXHIBIT E
F. STONE: Exactly.
VITOUSEK: So, again, you know, if we are looking at this in terms of the Special Permit and
we are saying the"Vehicular access for public use to the subject property shall be limited to Sea
View Circle,"that's limiting the public use; we are not condoning or condemning the Judd Trail
access because that's an issue that you guys need to work out independently.
F. STONE: I think that's fantastic and that would solve most of our problems. I just would like
to ask Carrol, because we had told Carrol we would only have residents' traffic. Commercial
traffic or non-resident traffic is going to be even less than the residential traffic. So very
minimal, like less than a single-family residence.
VITOUSEK: Christian, is that—
F. STONE: So, if that's okay—
VITOUSEK: —is that something—
F. STONE: —with Carrol.
PICKETT[f•om the audience]: Well, may I interrupt—
VITOUSEK: I'm not in control of that,but—
HALL: Wait a second.
VITOUSEK: —Christian, is that something that the Planning Department would be able to put
in as a condition?
KAY: The Director has made his recommendation. Our concern is we don't want to be seen as
condoning access over, an access they don't,they don't have legal access to.
VITOUSEK: Yeah.
KAY: If the Commission chooses to propose an amendment to that condition and votes on that
condition, you are welcome to do so.
VITOUSEK: So, again, the same question of us putting that condition requiring the public use to
be in this area, and not specifically saying anything about the Judd Trail, we are not condemning
it,we are not condoning it.
CARR SMITH: That's why it's not there.
VITOUSEK: Yeah.
KAY: It's, it's not only the Judd Trail, but Ho`omaluhia as well.
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EXHIBIT E
VITOUSEK: Same, yes.
KAY: Yeah.
UNGER: We would be silent on that, essentially.
VITOUSEK: Because I don't feel like in my capacity now, I'm able to review the access
easements for Ho`omaluhia, for Judd Trail; I don't think that's our position really. I think we are
looking at the special use permit, and if we were tying the access for the special use permit to the
allowable access,then, and we are not saying anything about their access, and they can figure
that out.
KAY: As the approving body, that is your right to suggest amendments to conditions.
VAN PERNIS: Christian, can I ask you whether the applicants have submitted any proof that
they have a right-of-way or easement over Ho`omaluhia?
KAY: We have had a significant amount of back-and-forth correspondence where the applicant
has felt like they found documents proving access. We've done our research and to this point
have not been able to substantiate legal access over Ho`omaluhia.
F. STONE: What I—
CARR SMITH: Could it—
F. STONE: If you want to talk about that more, I can address that. It is in your packet as well.
It's kind of far towards the back and there is not page numbers, but in the original articles—
VITOUSEK: Do we need to talk about that? Is this, is that part of—
F. STONE: No.
VITOUSEK: —our role as reviewing the Special Permit?
F. STONE: I would be happy to answer you.
VITOUSEK: Their access?
CARR SMITH: Well, I think you brought it up here. It seems like on No. 6, could we not say,
add to the end of it and say, "until such time as Applicant attains legal easement over
Ho`omaluhia?"
F. STONE: The problem is that Judd Trail could take another 15 years.
CARR SMITH: Well, I, but,you know,you have to understand the County's position,too.
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EXHIBIT E
VITOUSEK: And what I'm saying—
F. STONE: Right, but then a private road—
VITOUSEK: —is that we are reviewing only the Special Permit, and so the condition of the
Special Permit that we are implementing is that the use associated with the Special Permit be tied
to the existing allowable access off of Sea View. We are not saying anything about the
Ho`omaluhia, about the access over the Judd Trail.
UNGER: So, for example, Item No. 6 could be written to read something like, "Vehicular access
for the public to the subject property shall be limited to Sea-View ...?"
VITOUSEK: Exactly.
F. STONE: We would be very happy with that.
CARR SMITH: Shall be limited to the public?
F. STONE: Yes.
VITOUSEK: "Vehicular access for public use of the subject property ...."
F. STONE: Thank you. Thank you very much.
VITOUSEK: Okay, that's,that's a possible—
CARR SMITH: That's a possibility.
VITOUSEK: Yeah.
F. STONE: I would add one more thing onto that, which is just that when I talked to,we have
been paying members of the road association. We are listed in the TMK. I'm not going to go
into that because you already solved it. But the position of the private road association was it's a
private road,the County doesn't have jurisdiction, they can't,say. In addition, we've put in
22,000 dollars, we pay 130 dollars a month, for the road association for 20 years. All right—
VAN PERNIS: So you ought to be able to get,provide some proof of a written easement for the
use of that.
F. STONE: No. 7, I think we've talked about the floodplain. We can show that there isn't any
floodplain. Then, within that, we also show that instead of the DPW drawing the floodplain
map, it was actually Christian who's in Planning Department, and it didn't seem accurate to us.
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EXHIBIT E
No. 8,I think we already addressed, because that addresses the Certificate of Occupancy, but
now it sounds like the County is not going to require us to get a change of use permit, and so
then that's taken care of.
HALL: Sorry, let me just correct you on that. For one thing, though, for your actual church
building, you probably will need a Certificate of Occupancy, so then—
F. STONE: Oh, sure.
HALL: Yeah, so—
F. STONE: Yeah.
HALL: —then this would apply to that.
F. STONE: Yeah, okay.
HALL: Yeah,just wanted to make sure.
F. STONE: Great, yeah, I actually wrote that, "new."
HALL: Okay, yeah.
F. STONE: Okay, great, thank you.
HALL: Mm-hmm.
DARROW: Madam Chair? If I can interject.
CARR SMITH: Yes.
DARROW: The applicant is not understanding. It was made clear that this process that we are
speaking about happens after this. When they go to the Department of Public Works to submit
their permit, whatever we put on here doesn't matter. We don't even have to have these
conditions. If they are in a tributary, they are going to have to meet that code. If they need a
change of use, they are going to have to apply for it. So it's just the way the process works. So
after they are done here and may go in to submit their permits, all that will happen regardless of
whatever permit condition we have. So you could take them all out, they'll still have to do it. So
I hope they understand that now. Thank you.
F. STONE: We do. And our only issue with any of those was just the change of use, because
change of use is not allowed in Ag zoning and a church is allowed in Ag zoning.
DARROW: Again, change of use is a process through the Department of Public Works for a
building permit. Doesn't matter what zoning you are in-
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EXHIBIT E
F. STONE: Mm-hmm, we have—
DARROW: —doesn't matter. You could be in—
F. STONE: Mm-hmm, I understand.
DARROW: —you could be in any zoning, and you could require a change of use. It is not a
Use Permit; it is a change of use building permit. Okay? Do you, do you understand that?
F. STONE: What I understand is that we don't want to make any changes to our residential.
DARROW: You will have to, if you have to go in and permit unpermitted structures or—
F. STONE: It is against—
DARROW: —unpermitted additions.
F. STONE: —federal law.
DARROW: Again, it doesn't matter, once you go in—
F. STONE: It does matter.
DARROW: It doesn't matter,because— -
HALL: Jeff, it's DPW's call, so let's just leave it to DPW.
DARROW: Yeah, I'm just trying to get passed this.
HALL: I get it,I understand. But at the end of the day, Public Works will have to decide that
for—
YEE: Yeah, I want to be clear just to drive Jeff's point home. When you say that we are kind of
signing off of change of use, that,that is incorrect. No matter what they are voting on is not
addressing the change of use issue that you seem to be concerned about—
F. STONE: Then it's in violation of federal law.
YEE: Again, I am saying they are not voting on change of use; they are voting on special use,
okay, Special Permit.
F. STONE: They are insisting that we take the current already permitted building that has been
in existence for 20 years,which we are not changing at all, it's the residence, and saying that we
have to change it to a change of use, which rejects and throws out our original permit.
YEE: Again, Ms. Stone, understand, the Planning Department is separate from the Building-
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EXHIBIT E
F. STONE: Exactly.
YEE: —so when you have to apply for a building permit, you are doing it with them,not with
us.
F. STONE: Okay.
YEE: So, when you say, "You are breaking the law," it's not us. When you go to building
permit,they will issue whatever determination they have for you with a building permit.
F. STONE: Then, can we just take that out? The thing that says that you must, you are required
to have a change of use. Because we'll just work that out with the building department.
YEE: We didn't say you have to have a change of use—
F. STONE: Yes, you did in the conditions.
YEE: That doesn't say that.
F_ STONE: It does.
VITOUSEK: So, again, going back to the solution that I think we have of you guys, you know,
maintaining your existing use of your residence, applying for the different use, the religious use,
on the as-built deck and the new structure, I think you are good, you know,I think everything is
going to work out—
F. STONE: Okay, and the access, too.
VITOUSEK: —well for you guys.
KAY: Do you still intend to utilize the worship room for your meditation practice within the
structure?
F. STONE: We use it every morning at five o'clock for two hours.
KAY: For, for public use.
F. STONE: It depends on if you call our members public use. We don't. And if you make us go
outside to meditate—and there is no impact—and that is illegal on federal law. It's against the
Constitution, and it's against the RLUIPA law.
VAN PERNIS: It's—
VITOUSEK: You know, I, and to me, I think that, you know, religious activity can be part of
the single-family residence, you know,that you guys, if you want to pray in the corner of your
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room, you can pray in the corner of your room. I mean I don't think that's the intent of this. So,
you know, I think if your praying is part of your use of your single-family residence, yeah, shoot,
you know, go for it. But if you are establishing structures that are dedicated only to the religious
practices and that kind of thing,they want to have that in line with their codes.
F. STONE: Right.
VITOUSEK: So I think we are really in a close place to where we should be and, you know, if
we can move it in that direction, you guys will be happy with the result, I think.
F. STONE: I think so,too.
VITOUSEK: So if—can we move towards public testimony?
CARR SMITH: If they are finished—
VITOUSEK: And I'm unfortunately going to have to step out in about five minutes.
CARR SMITH: I know. So, are you ready to wrap up your presentation—
F. STONE: I do need to—
CARR SMITH: —so that we can go on to public testimony?
F. STONE: I need to address one thing that we just got. I would also hope that—I noticed our
neighbor Carrol is here, and I have on, it's hard to find, I did give it to you in your packet, but
there is a lengthy transcription of our correspondence where there is quite a bit of
misinformation, so I would like you to at least be aware of that. Secondly, we just got something
from Wanda Carry this morning, and it is full of the same thing, misinformation; it's saying that
we are not allowed, that we've violated the DLNR, we've violated the Judd Trail, that church
members hang out in front of her house. It's just full of, but it's one person out of the Ho`omalu
Subdivision, we have four neighbors on all sides that have, so I just want to say that that
CARR SMITH: Okay, thank you.
F. STONE: Okay. I do have one more thing. I'll try to make it quick. Based on these things,
again, with the John Mauck, and the difficulties that can happen, the weaponizing the permit
process,that we were required to do an SMA,we did it,the floodplain, the Public Works,that
Mr. Kay redrew the map,which should be the Department of Public Works, not the Planning
Department. Planning consultants, we were advised to get a planning consultant. We didn't
think we would need to since I've written four permits before, but we could not get anybody
from the County to answer our emails or answer our correspondence, so we looked into it. We
contacted Zendo Kern, because Sidney Fuke is retired—I heard him today, and he did good
job—I'm not specifically against planning consultants, but the contract that Zendo gave us was
for 40,000 dollars, and I do know that when SidneyFuke did the LivingStone's church, which is
a 600-seat church, 30 times as large as us, he charged 9,000 dollars. I would recommend that
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EXHIBIT E
there be some kind of accountability or something for who,planning consultants, because this is
something that Mr. Kealoha, I heard you at the last meeting, says that when you can just say,
okay, you need to do this or you need to do this, you need to do this permit, you need to get a
planning consultant, it makes it cost prohibitive for most people, only the very wealthy or the
extremely determined, which is where we come in.
Then, according to what we understand, we are not commercial usage that we have been
threatened to be fined, if we practice our religion on our property, if we are caught meditating;
that's against federal law. We did actually shut down and have been shut down since July 31St,
for eight months we've had no public programs;that's against federal law. And, the barn and the
gazebo that we were told that we had to have permitted;within the County zone planning, under
600-foot square[sic]buildings, you don't have to permit. So there have just been a lot of
questionable things that have made the process extremely difficult and very stressful, so.
CARR SMITH: Okay, well, the Planning Director has recommended a favorable, approval with
these conditions, so it could be worse.
F. STONE:, Are we clear on what the conditions are? Because I, we'll go with what
Mr. Vitousek said.
CARR SMITH: Thank you. You may all be seated.
F. STONE: If you don't want to keep the correspondence and stuff, I can take it back to recycle.
CARR SMITH: Okay,we'll move on to public testimony. All right. Could Wanda Carey,
Rosanne Shank, Brian Lamb and Anne Saks, please come forward?
VITOUSEK: So, unfortunately, I'm going to have to go. You guys still have quorum, though.
Thank you.
CARR SMITH: Thanks, Mike.
[Commissioner Vitousek left the meeting at 3:16 p.m.]
CARR SMITH: Wanda Carey?
CAREY: Yes.
CARR SMITH: Who are we missing?
FROM THE AUDIENCE: Rosanne.
CARR SMITH: She left?
FROM THE AUDIENCE: Yes.
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CARR SMITH: Okay. That's fine. Raise your right hand, please. Do you swear or affirm to
tell the truth on this matter before the Planning Commission?
TESTIFIERS: I do. Yes.
CARR SMITH: Okay. Start with you,please.
CAREY: My name is Wanda Carey. I live across the Judd Trail from Faith. I bought my
property at the top of Ho`omalu because it was a gated community, it offered the privacy and
views I was looking for. Ho`omalu and Sea View Circle are not neighborhoods that a
4,800-square foot church, 35 feet high, plus commercial kitchen, classrooms, guestrooms, should
be built in. It would be unfair to both communities. By their action they have shown no respect
to rules, laws, regulations or agreements. Early. in 2005 a water meter was installed on my
property by Faith Stone. DLNR told me she had no easement across Judd Trail for waterline, her
water comes from Sea View Circle. I mentioned their driveway and was told it was illegal and
was asked to pass on to her attorney that they get in touch with DLNR. In April 2005, their
request for a driveway easement over the Judd Trail was not granted. They do not have dual
access. The only time they mention Sea View Circle in their permit documents is to say the road
is 29 feet wide and Ho`omalu is 42 feet wide. Not true. It's 30 feet wide, and it's not theirs to
use. Their documents clearly show plans to use our private road and turn it into a public road.
They were granted permission to hold two classes a week. They agreed to use Sea View Circle,
their legal access. On February 11th and February 12th I was coming home and saw two large
vans loaded with people entering their property from our private roadway that they agreed not to
use. February 18th and 19th,using our roadway again,their usage is daily. They claim their
usage of our private road will not have any impact on us. Projected use of 20 trips a day will be
an increase in traffic at the top of the hill by at least 80 percent. That's a huge impact.
As for letters from neighbors on all sides, not true. I am on the Ho`omalu side. The Judd Trail is
between our two properties. I did not write a letter. A letter from Sea View Circle side said no
noticeable increase in traffic. Could it be because they are not using Sea View Circle? They
plan to have so many retreats each year, opening up to the general public. Not only will they be
in violation of no more than five unrelated persons on one property,they will create more traffic
than Sea View Circle or Ho`omalu can handle. Guests at Lot 2 have used my property as a place
to hang out and talking on the phone. Lot 2 needs to be fenced off, block them from loitering in
our roadway and on my property. Late one night a young lady climbed over my gate, looking for
the yoga studio. They are giving out gate codes to our gated community.
Please do not allow this permit for special use of agricultural land. They have shown no respect
for anyone. They will destroy our communities. These communities are not the place for this
kind of commercial business. They are zoned areas for that. This is not one of them.
I'd also like to say—Faith is talking about all these permits she was getting for everyone else—
Ho`omalu Subdivision Lots 1, 2, 3, 4 and 5 do not have access to Ho`omalu roadway. Lots 3, 4
and 5 enter from Kuakini, and then there's lots in between them, so they can't get to the road.
Lots 1 and 2 have access from Sea View Circle. Lot 1 has not used Ho`omalu, and they use
strictly Sea View Circle. Faith is the only one who has crossed the Judd Trail illegally. She is
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not a member of our association. I know she says she is paying dues, but when I was on the
board, she was not a member. There is a new board that has taken over, and, maybe they've
added her, but we didn't vote her in. And DLNR, DLNR told me that all the lots below Lot 1, all
have legal access over the Judd Trail to Ho`omalu because otherwise it would have been
landlocked and could not have been sold. Thank you.
CARR SMITH: Thank you.
VAN PERNIS: I have a question to—
CARR SMITH: No,not yet,thank you.
SAKS: Good afternoon, my name is Anne Saks, and I've lived in Kailua-Kona over 20 years
with my husband Mark, and raised my daughters here. We first lived at Sea View Circle, and at
that time we started going to Konalani that was Year 2000, andwe really found it a wonderful
place to be with people who practice the same believes we do. I've been a practicing Buddhist
yogi for 40 years, and I started in Colorado. I knew Faith, and we are really family more than
anything else. That's why I'm kind of that gray area; I'm not really the public, I'm family. And
Konalani has been an `ohana for my family. My kids did Girl Scouts camp there and learned a
lot of important values as people. They graduated from Kealakehe with honors. My husband
and I are both schoolteachers. I think we taught some of your children. And so we are lay
members. We are community servants. We are people, like you, who also practice Buddhism
and yoga, and, you know, in a different way, and we really, really need a place to practice, and
there's only really a few handfuls of us, if you count the number. The people who come on
retreats are generally not from the area, and they don't have cars;they are mostly there doing a
retreat. So my, you know, I'll drive my car over there because I live in Kona.
So the ashram is really a place of sanctuary. It really provides a service to the community.
There aren't many places like this. My husband also leads a Mindful program in the schools,
which is based in meditation, because it's very important that kids learn this. And so, you know,
he walks the walk,too.
In conclusion, I support the special use permit for the Konalani ashram so that it may continue to
provide a spiritual sanctuary with profound teachings that can support others in the community in
the future. Thank you.
CARR SMITH: Thank you.
LAMB: Good afternoon, my name is Brian Lamb. I'm a resident of Kona. I've been here just
about my whole life, about 40 years now. I am an owner and operator of a wastewater utility
company here,private sector, so I get to deal a lot with communities and with the County, State,
Federal level everything. And for the past ten years now, I've been a member of the Konalani
yoga ashram, and it has helped me with my personal growth of working on becoming a better
person, more involved in the community. I've met many individuals through this group that
have used my services, and we've helped really better our areas around us. And I really feel that
the Konalani ashram has provided a place for a lot of people to kind of come and do that—I
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wouldn't say"a lot"but like she said a handful of the residents here to have a normal spiritual
practice where we can come and work on our personal growth and our connection with God.
And I don't see any impact from my years of being there where it has impacted any neighbors;
everybody is quiet,there is no stereos blasting as they drive by through the neighborhood, like I,
you can hear in any neighbor, you can hear people driving thumping their sounds through the
car, in their cars, and making a nuisance. I found that anyone affiliated or living at the ashram is
respectful, quiet,they keep their areas clean, they think about their neighbors and their
community. And we all try to stay as involved as we can with our communities. And you've
heard many different ways through Girl Scouts,through Pony Ride, through donating food,
through artwork shops, and through yoga classes, and these are people in the community that
appreciate having the yoga ashram here. It's a place for them to come practice, for them to build
a better, stronger structure within themselves to become better people. And even if it's just 14
people, those 14 people can spread enough compassion and care for their neighbors that it
becomes infectious. And without this, I really see that effectiveness diminished. And I fully
support the special use permit for Konalani Yoga Ashram. Thank you.
CARR SMITH: Thank you very much. Are there questions from the Commissioners?
VAN PERNIS: [Inaudible.]
CARR SMITH: Use your microphone, please, and keep it brief, if you don't mind.
VAN PERNIS: To your knowledge, ma'am, does this property have any kind of a legal
right-of-way or private entry over the private road you refer to?
CAREY: They have no legal access to Ho`omalu.
F. STONE[from the audience]: That's wrong. I[inaudible]that's,that's not true.
VAN PERNIS: Are you aware of any legal right?
CAREY: Excuse me?
VAN PERNIS: Are you aware of any legal right?
CAREY: Absolutely none.
CARR SMITH: Okay, thank you.
VAN PERNIS: All right. Secondly, are you aware that if the approval with conditions is
granted,that you can complain of any violation of conditions to the Planning Director who then
can take action?
CAREY: I understand that.
VAN PERNIS: Thank you.
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EXHIBIT E
•
CARR SMITH: Thank you very much for your testimony. You may be seated. Next up is Devi
Stone and Carrol Pickett. [Inaudible comment from the audience.] Oh,I'm sorry, okay. Oh,
Carrol?
PICKETT: Yes.
CARR SMITH: Oh, you are Carrol, got it.
PICKETT: Good afternoon.
CARR SMITH: Hello.
PICKETT: I think we started this morning. Anyway, I'm Carrol Pickett.
CARR SMITH: Raise your right hand, please, and—
PICKETT: Oh, I'm sorry.
CARR SMITH: Yes. Do you swear and affirm to tell the truth on this matter before the
Planning Commission?
PICKETT: I do. Yes, ma'am.
CARR SMITH: Use your microphone, please, and then tell us, proceed.
PICKETT: I'm Carrol Pickett. I'm adjoining the said property. Originally, I, we built the house
in Sea View sort of 1971, and I've lived there ever since, and we are the owner of that property.
And when we bought the property at Sea View Circle, the north end of that was barricaded off,
because the pasture,that end was pasture land, not the subdivision, and I understand that that was
never to be open because that property isnot part of Sea View Circle and never has been part of
Sea View Circle. So they opened their rights there for their property, which we didn't have a
problem at the time, but I tell you it was illegal. But the problem we have now is because if they
get permits for other traffic coming in there, my house and one other house is dead-end, across
the street is my other neighbor; we are the only two,three houses,that are actually complaining
about the new traffic coming through there. Because the gate now is open at the end of their
property. So any excess property from the—excuse me, my mouth is so dry—so I understand
they don't have legal rights to open that in the first place. I may be wrong, but. But the only
complain now I have is the traffic, extra traffic, since the barricade is not there anymore. That's
the only problem I have with the adjoining properties. What they are doing in their property,
getting permits, if that's all okay, if that's all approved, we don't have a problem with that at all,
okay? Thank you.
CARR SMITH: Okay, thank you very much. Appreciate it.
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EXHIBIT E
PICKETT: Oh, I want to,I'm sorry, I'm speaking on behalf of the other two neighbors. They
both got sick. One hurt his back, and they had doctor's appointment, so I did bring Tika, which
is, her husband is sick, and he couldn't be here also. Thank you for your time.
CARR SMITH: Thank you. All right, Commissioners, I need a motion to close public
testimony.
UNGER: I make a motion to close public testimony.
KEALOHA: I'll second.
CARR SMITH: All in favor?
COMMISSIONERS: Aye.
CARR SMITH: Anyone opposed? [None.] Okay, public testimony is now closed. I would like
to ask the Director if, after hearing public testimony, if your recommendation is still the same.
YEE: I would request a five-minute recess, if you are asking me that question.
CARR SMITH: That's fine. Let's take a five-minute recess. We'll be back at, let's say, 3:45.
[Chair Carr Smith called a recess at 3:32 p.m: The hearing was reconvened at 3:40 p.m]
CARR SMITH: Since everyone is back here, maybe we'll go ahead and get back to it here. So,
Director Yee, did you, or Christian, want.to respond to my question before the break?
YEE: Yes, so, I'll maintain the favorable with some changes, which Christian will read,which
incorporate what we've been talking about.
CARR SMITH: Okay, Christian?
KAY: First thing is just, because there are no time conditions on the SMA, we are going to
strike the time extension condition—superfluous and not necessary there.
In terms of No. 4, "Prior to resumption of public activities on the property and within the
proposed Residential Yoga Ashram, if required by the Department of Public Works, Building
Division, the applicant shall secure change of use and `as-built' building permits and be granted
a Certificate of Occupancy meeting with the requirements of the Department of Public Works,
Building Division, and/or as articulated in Building Division's December 27, 2019
memorandum." That's changes, so the changes are essentially, "if required by the Department of
Public Works, Building Division."
Okay—sorry—and then the other one that has to do with access is, and this is what
Commissioner Vitousek laid out was, "Vehicular access for public use to the subject property
shall be limited to Sea View Circle," and then the rest of the condition will remain as is.
50
• EXHIBIT E
CARR SMITH: Can you give me some reference numbers here so we are all—
KAY: I apologize. The first one relative to the change of use is Condition No. 4 of the Special
Permit—
CARR SMITH: Oh, I thought you said we were on the SMA, sorry.
KAY: Oh, sorry, yeah, the SMA was just striking, sorry, yeah,we are striking No. 9 from the
SMA, and then adjusting the Condition No. 4 in the Special Permit to read, "if required by the
Department of Public Works, Building Division," and then—
CARR SMITH: Got it, okay.
KAY: —the access clarification that Commissioner Vitousek laid out for Condition No. 6.
VAN PERMIS: Could I ask to add another condition that I believe the applicant agreed to?
KAY: As I understand that these are the, at least the first two were the Director-suggested
changes. I think once there is a motion, you'll have an opportunity to request an amendment to
the conditions. Is that correct? Okay.
CARR SMITH: Sorry, don't, don't leave yet. So, on the—
KAY: I wouldn't dream of it.
CARR SMITH: —on the SMA,just so we can proceed clearly here—
KAY: Okay.
CARR SMITH: —Item No. 4 is adding "if required by DPW."
KAY: On the Special Permit.
CARR SMITH: On the Special Permit. Okay.
KAY: So, on the Special Permit, No. 4,."Prior to resumption of public activities on the property
and within the proposed Residential Yoga Ashram, if required by the Department of Public
Works, Building Division, the applicant shall secure change of use and `as-built' building
permits and be granted a Certificated of Occupancy meeting with the requirements of the
Department of Public Works, Building Division and/or as articulated in Building Division's
December 27, 2019 memorandum."
CARR SMITH: So it's just No. 4 in the special use permit?
•
51
EXHIBIT E
KAY: Number 4, and then the other one was No. 6 and that was Commissioner Vitousek's
change—
CARR SMITH: For public use.
KAY: For public use,correct.
CARR SMITH: And then scratching No. 9 on the SMA.
KAY: Correct.
CARR SMITH: Okay, so that's what we are working with on the Director's recommendation.
KAY: Correct.
VAN PERNIS: Could I offer to it another special condition and see what the—
HALL: You need a motion first, sorry, yeah, we need a motion first, and then we can discuss
amendments.
UNGER: I'd like to make a motion. I move that the application for Special Management Area
Permit, Docket No. 19-000074, be approved based on the Planning Director's recommendations,
which shall be adopted, subject to changing Item No. 4 of the requirements to—
HALL: No, you are doing SMA, right?
UNGER: This is.SMA, I'm sorry, SMA, to strike Item No. 9.
CARR SMITH: Second?
KEALOHA: I'll second.
KAY: If I may,we—
CARR SMITH: Motion by Mr. Unger and second by Mr. Kealoha.
VAN PERNIS: May I propose a friendly amendment?
CARR SMITH: Yes,just a moment, please. Christian, did you have a comment?
KAY: Yeah, we seem to have misplaced the file, so I need the voting sheet, okay,we'll transfer
this into the file once the voting is done. So, sorry,the motion was from Commissioner Unger
and the second was Kealoha—
CARR SMITH: Kealoha, for the SMA.
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EXHIBIT E
KAY: Okay, and then, and that's for the SMA—ah, here we are[the voting sheet],thank you—
for the SMA—Unger and Kealoha—and this was, approve as recommended by the Planning
Director, including striking out No. 9. Okay, and any—okay, I've got, I've got the motion.
CARR SMITH: Okay. Mr. Van Pernis, is your—
VAN PERNIS: Thank you.
CARR SMITH: —suggestion regarding the SMA?
VAN PERNIS: I believe, I'll make the said recommendation, but I guess it's the Special Permit
that allows for the commercial kitchen.
KAY: That's correct, so that would be when we discuss the Special Permit.
VAN PERNIS: I'll defer until when we discuss the Special Permit.
KAY: I apologize, let me just double-check to make sure that that's accurate. Okay, okay, yeah,
it'll be on the Special Permit,not the SMA.
CARR SMITH: All right, so,we have a motion on the floor. Is there any other discussion about
the SMA? [None.]
Applicant, could you come to the table by yourself,please? I just want to make sure that you
understand what we are doing on the SMA Permit—
F. STONE: Yes.
CARR SMITH: —we are scratching the—
F. STONE: Yes.
CARR SMITH: —time frames—
F. STONE: Thank you.
CARR SMITH: Okay?
F. STONE: Appreciate it.
CARR SMITH: Thank you. You can stay there.
F. STONE: Okay.
CARR SMITH: All right. Can we have a vote,please?
53
EXHIBIT E
KAY: Yes, thank you, Madam Chair. Commissioner Unger?
UNGER: Aye.
KAY: Commissioner Kealoha?
KEALOHA: Aye.
KAY: Commissioner Newberg?
NEWBERG: Aye.
KAY: Commissioner Van Perris?
VAN PERNIS: Aye.
KAY: And Chair Carr Smith?
CARR SMITH: Aye.
KAY: Thank you. Madam Chair, motion carries, five-nothing.
CARR SMITH: Okay. All right, let's go to the Special Permit. I need a motion for that.
UNGER: I'd like to make a motion.
CARR SMITH: Sorry?
UNGER: I'd like to make a motion.
CARR SMITH: [Inaudible advice from Ms. Hall.] Oh,yeah. Did you understand the changes
that we discussed?
F. STONE: I'm sorry, I believe so. Can, can I just refresh? So—
CARR SMITH: On the Special Permit, right?
F. STONE: Right. •
CARR SMITH: Okay.
F. STONE: Let me just make sure I do have the right one. So, yeah, No. 1 and No. 2, we're fine
with that.
CARR SMITH: We are just talking about 4 and 6 as far as-
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EXHIBIT E
F. STONE: Right.
CARR SMITH: —the changes made by the Planning Director.
F. STONE: And that's really all, other than, the floodplain was No. 7, and so, but that sounds
like we just go to the Building Department with that.
KAY: Engineering Division.
g
CARR SMITH: Okay.
F. STONE: We are fine with that.
CARR SMITH: All right. A motion for the Special Permit, please?
UNGER: I'd like to make a motion. I move that the application for Special Permit, Docket
No. 19-000210, be approved based on the Planning Director's recommendations, which shall be
adopted, subject to changing recommendation No. 5 [sic]to read, "Should the Department of
Public Works, Building Division, require it, and prior to resumption of public activities on the
property and within the proposed Residential Yoga Ashram, the applicant shall secure change of
use and `as-built' building permits and be granted a Certificate of Occupancy meeting with the
requirements of the Department of Public Works, Building Division, and/or as articulated in the
Building Division's December 27, 2019 memorandum," and then Item No. 6 to be changed to,
"Vehicular access for members of the public to the subject property shall be limited to the Sea
View Circle. All driveway connections to Sea View Circle and any work within the County
Right-of-Way shall conform to Chapter 22, County Streets, of the Hawai`i County Code."
VAN PERNIS: Point of order. Could I ask the motion maker what memorandum the maker is
referring to?
UNGER: On which item?
KAY: Number 4 speaks to—
UNGER: Number O—
KAY: —Building Division's memorandum of December 27th
UNGER: Right.
VAN PERNIS: Memorandum of who?
HALL: DPW.
KAY: DPW submitted to us a memorandum outlining the requirements for a change of use
permit.
55
EXHIBIT E
VAN PERNIS: All right,thank you.
KAY: One clarification, if I may, Chair[sic]Unger, you said, "the Sea View Circle?" Did you
want"the" in front of that—
UNGER: No, Sea View, as it's written.
KAY: Thank you. So if I'm clear, "Vehicular access for members of the public to the subject
property shall be limited to Sea View Circle. All driveway connections to Sea View Circle and
any work within the County Right-of-Way shall conform to Chapter 22, County Streets, of the
Hawai`i County Code."
UNGER: Correct.
KAY: Okay,thank you.
CARR SMITH: One more comment. You said, "Item 5"; you meant Item 4. So,just for
Noriko's—
UNGER: Item 4, I'm sorry, I meant Item 4.
CARR SMITH: Yeah.
UNGER: Okay.
CARR SMITH: Is there a second?
KEALOHA: I'll second.
CARR SMITH: Any discussion about this?
VAN PERNIS: I'd like to make a friendly suggestion for amendment.
KAY: Okay.
VAN PERMIS: First of all, don't get me wrong; I'm a yoga practitioner myself. But I think this
applicant has demonstrated some disregard of the public and the law, and what they refer to
Federal laws as some applying here, and it certainly does not as Mr. Mauck writes. So I'd ask
Mr. Yee to closely monitor the conditions of this approval, if it passed, to see whether or not
anything is violated,particularly the public access issue.
The friendly amendment I said I believe the applicant has agreed that the commercial kitchen
would be limited to supplying food on premises,not off premises. If we can make that as a
special condition, I appreciate it.
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EXHIBIT E
KAY: The condition of approval that speaks to the certified kitchen is Condition No. 12. If you
want,you could add something to the end of that to that effect, without adding another condition.
VAN PERNIS: That's what I'd like to do.
KAY: Do you have any language, Commissioner Van Pernis, that you would like to add?
VAN PERNIS: Just a short sentence that the commercial kitchen shall be limited to providing
food for the premises only and not the public.
F. STONE: We don't have any problem with that.
KAY: Shall be limited to the premises only?
VAN PERNIS: Not the public outside.
KAY: Okay. Only and not for the public outside.
F. STONE: Although I don't think that's defensible. Though we don't intend to do it anyway.
VAN PERNIS: I'm sorry, are you opposed now?
F. STONE: I'm just saying I don't think it's legally defensible when you have a licensed
kitchen,but we don't intend to do it anyway, so we agree.
VAN PERNIS: So it's okay.
F. STONE: Yeah.
KAY: Okay, if I can read this, I won't read the entirety of Condition 11 [sic], but after
Certificate of Occupancy—
UNGER: Well, let me, I think I need to probably either withdraw my motion, or can I modify it,
or?
HALL: Yeah, you can amend it.
KAY: You can amend it.
UNGER: Okay, I'd like to amend it according to Commissioner Van Pernis's suggestion.
KAY: All right. And after"issuance of a Certificate of Occupancy"period, "The commercial
kitchen shall be limited to the premises and not for the public offsite."
VAN PERNIS: Preparation of food in—
57
EXHIBIT E
KAY: Preparation of food in the commercial kitchen.
KEALOHA: And I'll second that.
CARR SMITH: Thank you. Any other discussion? [None.] Very good. When you are ready,
Christian,we'll take a roll call vote.
KAY: Okay,thank you, Madam Chair. With the amended motion, Commissioner Unger?
UNGER: Aye.
KAY: Commissioner Kealoha?
KEALOHA: Aye.
KAY: Commissioner Newberg?
NEWBERG: Aye.
KAY: Commissioner Van Perris?
VAN PERNIS: Aye.
KAY: Commissioner,pardon me, Chair Carr Smith?
CARR SMITH: Aye.
KAY: Thank you. Madam Chair,'motion carries, five to nothing.
CARR SMITH: Very good.
F. STONE: Thank you very much. I appreciate it.
CARR SMITH: You'll be alerted in writing of the decision. Thank you.
The hearing ended at 3:55 p.m.
Respectfully submitted,
Noriko Sauer, Secretary
Leeward Planning Commission
58
EXHIBIT E
LEEWARD PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
JUNE 18, 2020
A regularly advertised continued hearing on the applications of SUFFOLK INVESTMENT
LLC (AMEND REZ 2004-000024) and PUAA DEVELOPMENT LLC (AMEND REZ
2004-000025)was called to order at 11:50 a.m. via live-stream meeting, with Chairperson
Nancy Carr Smith presiding.
COMMISSIONERS IN ATTENDANCE: Nancy Can Smith, Perry Kealoha,Max Newberg,
Mark Van Perris, Michael Vitousek and Faith "Faye" Yates
ALSO IN ATTENDANCE: J Yoshimoto,Esq. (Counsel for the Commission), Michael Yee
(Planning Director), John Mukai, Esq. (Counsel for the Planning Director), Christian Kay
(Planner),Jeff Darrow(Planning Program Manager),Maija Jackson (Planner), Jessica Andrews
(Planner), Alex Roy (Planner), Rachelle Ley (Secretary to the Planning Director) and
Noriko Sauer(Commission Secretary)
APPLICANT: SUFFOLK INVESTMENT LLC (AMEND REZ 2004-000024)
Continued hearing on an application to amend Condition B (Time to Pay Water Deposit), Condition
C (Time to Complete Construction), Amend Condition D (Delete Rental Housing Restriction),
Amend Condition E (Delete Requirement for Supplemental TIAR), Amend Condition F (Roadway
Improvements), Amend Condition H(Location of Spine Road within Project Site), Amend
Condition I(Kuakini Highway Improvements), Amend Condition U(Requirement of a 5-acre
School Site &Improvements), Amend Condition V (Fair Share), Amend Condition X(Affordable
Housing Requirement& Change Housing Program Approving Authority), and Amend Condition Z
(Administrative Time Extension) of Ordinance No. 05-113. Ordinance No. 05-113 reclassified the
14.872-acre property from Agricultural-5 acres (A-5a) to Multiple-Family Residential-2,500 square
foot(RM-2.5) in 2005. The subject 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 -Kuakini Highway intersection, Puapuaaiki 1st,North
Kona, Hawai`i, TMK: (3) 7-5-017:019.
APPLICANT: PUAA DEVELOPMENT LLC (AMEND REZ 2004-000025)
Continued hearing on an application to amend Condition B (Time to Pay Water Deposit), Condition
C (Time to Complete Construction), Condition E(Delete Requirement for Supplemental Traffic
Study), Condition F (Roadway Improvements), Condition H(Location of Spine Road), Condition I
(Kuakini Highway Improvements), Condition V(Requirement for a 5-Acre School Site and
Improvements), Condition W (Fair Share Contribution), Condition Y (Affordable Housing Timing),
Condition Z(Housing), and Condition BB (Administrative Time Extension) of Ordinance No.
05-115. Ordinance No. 05-115 reclassified the 14.973-acre property from Agricultural-5 acres
(A-5a)to Neighborhood Commercial-20,000 square feet(CN-20) in 2005. The subject property is
located west(makai) of Queen Ka`ahumanu Highway and the Pualani Estates Subdivision, and
1
EXHIBIT D
t Y
about 1,400 feet north of the Queen Ka`ahumanu Highway -Kuakini Highway intersection,
Puapuaaiki 1st and Puapuaanui 1st, North Kona, Hawai`i, TMK: (3) 7-5-017:001.
Secretary's Note: "-- -" indicates that there were technical and/or internet difficulties, which made
the conversation inaudible.
CARR SMITH: Okay, so, the next two applications, Agenda Item 5 and 6, are two separate
applications,but we are going to hear them together. We heard these cases in February, and they
were deferred to the next meeting,which is today in May [sic]. So I'm going to read these long
agenda items again:
Suffolk Investment LLC, AMEND REZ 2004-000024, continued hearing on an application to amend
Condition B, which is a time to pay water deposit; Condition C, time to complete construction;
amend Condition D,which deletes rental housing restriction; amend Condition E, deletes
requirement for supplemental TIRA, I'm sorry, TIAR; amend Condition F,which is road
improvements; amend Condition H, which is a location of the spine road within the project site;
amend Condition I, Kuakini Highway improvements; amend Condition U, which is a requirement of
a five-acre school site and improvements; amend Condition V, which is fair share; amend Condition
X, which is affordable housing requirement and change housing program approving authority;
amend Condition Z, which is administrative time extension. This is all of Ordinance No. 05-113.
Ordinance No. 05-113 reclassified the 14.872-acre property from Ag-5 to Multi-Family Residential-
2,500 square feet in 2005. The subject property is located makai of Queen Ka`ahumanu Highway
and east, mauka, of Kuakini Highway and of the Kahakai Estates Subdivision, approximately
2,200 feet north of the Queen Ka`ahumanu Highway-Kuakini Highway intersection, Puapuaaiki 1St,
North Kona, Hawaii. TMK: (3) 7-5-017:019. Okay?
Agenda Item No. 2 [sic] is Applicant Puaa Development LLC, AMEND REZ 2004-000025. This is
a continued hearing on the application to amend Condition B,which is time to pay water deposit;
Condition C, time to complete construction; Condition E, complete [sic] requirement for
supplemental traffic study; Condition F, roadway improvements; Condition H, location of the spine
road; Condition I,Kuakini Highway improvements; Condition V,requirement for a five-acre school
site and improvements; Condition W, which is fair share contribution; Condition Y, which is
affordable housing timing; Condition Z, which is housing; and, Condition BB,which is
administrative time extension, of Ordinance No. 05-115. Ordinance No. 05-115 reclassified the
14.973-acre property from Agricultural-5 acres to Neighborhood Commercial-20,000 square feet.
The subject property is located west of Queen Ka`ahumanu Highway and the Pualani Estates
Subdivision, and about 1,400 feet north of the Queen Ka`ahumanu Highway-Kuakini Highway
intersection, Puapuaaiki—I'm not sure I'm saying that right-1St and, in North Kona, Hawai`i.
TMK: (3) 7-5-017:001.
All right. So those are the agenda items. Some housekeeping, since Commissioner Yates was not at
the meeting in February, I need to ask if you have had a chance to review all the materials. Mark,
can you give her the microphone,please?
YATES: Yes, I have.
2
EXHIBIT D
CARR SMITH: Very good,thank you. All right. Christian,please proceed with your presentation.
KAY: Yes, thank you,Madam Chair. If you give me a moment, I'll switch on my screen here:
CARR SMITH: Okay.
KAY: And, can everybody see it there?
CARR SMITH: Good.
KAY: Okay. Again, as you stated,these are, the next two agenda items,we are going to do one
presentation for the both of them, given that there is a connection between the two,both
geographically as well as from an ownership standpoint. And, essentially, the two properties are
being designed as part of one larger master-planned community.
The subject properties here outlined in red for Puaa Development and in blue for Suffolk Investment
are situated in the North Kona district of Hawai`i Island. For reference, we've got Queen
Ka`ahumanu Highway running generally north-south through the slide in the middle here, and also a
little bit further makai,we've got Kuakini Highway again generally running north-south through the
slide. For further location reference,we've got Pualani Estates here mauka of the Puaa property
shown in the yellow, and then makai of the Suffolk property,we've got Kahakai Estates
Subdivision, and that's makai here of Kuakini Highway.
So I just want to go through the existing entitlements and what was proposed initially and now the
current proposed project. For the Suffolk property, Ordinance No. 05-113 was approved on
August 5, 2005,to change the zoning from an Agricultural-5 acre zoning designation to a
Multi-Family Residential-2,500 square foot zoning designation for 14,872 acres. The applicant
originally proposed at the time a 250-unit market-rate rental housing development, with the 300-stall
parking lot and a one-plus-acre park. The applicant is currently proposing to reduce the number of
rental units to 226 and intends to develop open space and a passive recreation area. For the Puaa
Development property,which is approved under Ordinance 05-115 on August 5, 2005,that changed
the zoning from Agricultural-5 acres to Neighborhood Commercial-20,000 square feet for
14.973 acres. The applicant in that case initially proposed to develop a neighborhood commercial
shopping center, including a 93,600-square foot complex that would house varied commercial uses,
such as financial institutions and office spaces. Also proposed was a 500-plus parking stall lot, with
appropriate accessibility requirements. The applicant is currently proposing a reduction in the size
of the commercial project from 93,600 square feet to 72,600 square feet. Also included in this
current proposal is the inclusion of a transit hub in the form of a public bus transfer station, as well.
as the addition of 100 multiple-family residential units. I will note here that in the application it
spoke about 100 multiple-family residential units on the Puaa Development property; however,
when we get through the site plan, you'll see that it's actually 150 multiple-family dwelling units
shown on the site plan on that property. So there is a bit of discrepancy between the application and
what's on the site.
So the next two slides list the applicant's amendment requests that the Chair read at the beginning,
so instead of re-reading through all of them, I'll leave them on the screen for you to read. And so
3
EXHIBIT D
with the exception of two specific Conditions for the Suffolk property and one for the Puaa property,
'the other requested amendments are essentially the same. So in the case of the Suffolk property,
those two Conditions are related to rental housing and affordable housing. First is Condition D,
which currently requires the project to be used for rental housing for a period of 20 years as what
was represented by the applicant at that time of the original change of zone; so the applicant in this
case is asking to delete that Condition entirely. Second is Condition X, and the applicant is
requesting to amend that, which, again as represented by the applicant at the time of the original
change of zone, would have,would require a minimum of 20 percent of their rental units with the
Suffolk property to be rented at 80 percent or less than the median income level and the remainder to
be rented at a 120 percent or less in the area median income level; in this case the applicant is
requesting relief from these requirements to be replaced with standard affordable housing language.
And then next is for Puaa Development, and again in that case the applicant is requesting to delete
Condition Y, which currently requires the project to include housing. The Condition goes on to
require that at least 50 residential units be under actual construction with completion assured by
surety bond before a certificate of occupancy can be issued for any commercial structures. In
addition, that Condition requires an additional 50 units of housing would be built under those same
conditions, if any commercial uses exceeds 60,000 square feet of gross floor area; so in this case
they are asking for relief from that requirement. And again, other than those, the rest of the
conditions that they are asking for amendment remain the same, or are essentially the same.
The applicant's stated reasons for request are basically due to the economic,the global economic
meltdown that occurred in 2008, over a decade ago; they had difficulty securing the required
financing to initiate and complete the project as represented, as a funding was too difficult to obtain,
and thus they decided to prioritize exploring alternative uses for the properties, including sale of the
properties, and exploring sources for construction financing. The applicant believes that the current
economic outlook is amenable; however, time is still needed for the applicant to address the various
conditions of approval, to incorporate and finalize plans, and to secure the required financing.
Again, I'll just note that the economic outlook being amenable was pre-COVID. According to the
applicant, they have worked on compliance for several conditions, including the conveyance of a
five-acre site for a future school as required by the ordinances, but it ultimately did not get approved
because that was tied to a subdivision of the property that never occurred, and then the school
relocating to a different area. Lastly, although there has been no physical construction that has
occurred, the applicant states that they have expended a considerable amount of soft funds, including
nearly a million dollars spent for more detailed land use planning and the preparation of
infrastructure construction plans for the projects.
So the zoning for the subject properties are as follows: Again, for reference,we have Queen
Ka`ahumanu Highway running in the middle of the slide here north-south, and Kuakini Highway
running toward the bottom, and again,Puaa Development is a Neighborhood Commercial-20,000
feet as indicated in the pink color, and for Suffolk Investment we've got Multiple-Family
Residential-2,500 square feet. Other zonings in the area are a mix of Single- and Multiple-Family
Residential, some Agricultural and some Neighborhood Commercial closer to Kuakini Highway.
The State Land Use designation for the subject parcels is a State Land Use Urban as is indicated by
the pink colors. The other designations that we see here, Agriculture as is indicated by the green
color. It should be noted that in conjunction with the change of zone ordinances granted in 2005,the
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EXHIBIT D
applicant secured State Land Use Boundary Amendments - -- of the subject parcels. As each of
those parcels was under 15 acres, they were able to do so through the Planning Commission and the
County Council.
And the General Plan designation for, under the General Plan Land Use Pattern Allocation Guide
Map, for the subject parcels is largely Urban Expansion as is indicated by the thatched design.
There is some Low Density Urban to the bottom of the screen, indicated in yellow, and some
Medium Density Urban in the upper left that's consistent with other Multiple-Family Residential
zoning in the area.
The Kona Community Development Plan designates this area within the Kona Urban Area as is
indicated by the red line. And the,the subject parcels here outlined again in red and blue are right in
the middle of the Kahului-Puapua`a Village Neighborhood Transit Oriented Development area, and
we'll get into what that means a little bit more later.
Here is an aerial photograph of the subject properties with the Puaa property again outlined in red
and Suffolk outlined in blue. So, as you can see, mauka of Puaa you've got the subdivision here,
and then makai of Suffolk you've got the Kahakai Estates Subdivision here. The properties are
generally vacant of any improvements or structures. In compliance with some conditions of
approval of the subdivision, there was a paved road built here in this area, and that's consistent with
.a utility corridor.
Here is the applicant's proposed site plan entitled the "Pualani Makai —A Master Planned
Community," and encompasses both properties. The plan shows two accesses from Queen
Ka`ahumanu Highway - - - at the,top of the screen: One is on the left here across from Puapua'anui
Street; and the other further to the right is the mauka-most terminus spine road that's required by the
existing ordinances. That spine road intersects with Kuakini Highway,which is generally running in
this area towards the bottom on the makai side of the larger area. The Puaa Development property
outlined again in red on the mauka side depicts a commercial office center here on the left-hand side
and the associated parking, for the middle of the property there you can see what is meant to be a
drug store area, and mauka of that is the proposed bus transfer station, and then further to the right of
the screen is proposed areas for about 100 units of multiple-family residential. And as I mentioned
before, there is a bit of discrepancy between what is in the application in terms of the number of
multiple-family residential units in the Puaa property whereas they said 100,but there are another 50
multiple-family residential units being shown on their site plan here just makai of the commercial
area. For the Suffolk property, further makai - - -the proposed 260-unit multiple-family residential
development. Finally,the site plan does depict a few archaeological sites that are shown on the
larger area, and they don't appear to be directly located upon the existing Puaa or Suffolk property.
Here are some site photos showing surrounding roadways of the subject parcels. The photo on the
upper left shows Kuakini Highway heading toward Kailua-Kona. The upper right is a view of the
same highway heading the opposite direction, with the intersection of the Kahakai Estates
Subdivision here on the right. On the bottom left is a view of Queen Ka`ahumanu Highway looking
toward Kailua-Kona; this is at the Puapua'anui Street intersection, with the subject property that
being Puaa Development, on the right-hand side. And then the bottom right is Queen Ka`ahumanu
Highway looking the other direction,with the subject property on the left-hand side.
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EXHIBIT D
So the Planning Director is recommending an unfavorable recommendation be forwarded to the
Hawaii County Council for both ordinances for the following reasons: The proposed requests do not
conform to the goals, objectives, and actions of the Kona Community Development Plan; the
proposed requests do not conform to the goals,policies, and courses of action of the Land Use–
Commercial, Development&Land Use–Multiple Family Elements of the General Plan;previous
segmentation of this area in securing planning entitlements is inconsistent with State Law; and,the
proposed request will not result in a more appropriate land use pattern that will further the public
necessity and convenience and the general welfare. I just wanted to point, and I didn't the last time,
but these four bullet points here are actually part of the criteria we look at when we are making
recommendations for approving changes of zone and amendments thereto, so the language is very
specific because we are recommending unfavorable based on those analysis points.
So to the first one, "The proposed requests do not conform to the goals, objectives, and actions of the
Kona Community Development Plan,"the CDP was adopted in 2008, approximately three years
after the zoning was approved, and the CDP being adopted with extensive community input. As we
stated before, the subject properties are situated right within the middle of the Kahului-Puapua`a
Village Transit Oriented Development area. And within those areas in the Kona Urban Area, the
CDP calls for development of compact, walkable,mixed-use village development as a preferred
development pattern in those areas. The recommended way to do that is through the development of
a Project District zoning,which is identified in the CDP as a mechanism to achieve that development
pattern in the Transit Oriented Development area, as it allows the flexibility in both permitted uses,
as well as the densities, required all developed under a master plan to meet the compact,walkable,
mixed-use preferred future for those areas. So, conversely, the existing single district zoning that we
have,both the Multiple-Family Residential and Neighborhood Commercial zonings, cannot achieve
this preferred pattern. The applicant has suggested that conditions of approval could further the
TOD concept, but the Director doesn't want to create a new development process through separate
zoning ordinances, you know, on a case-by-case basis, but really prefers to use the existing
community-vetted master planning process that was recommended in the CDP. The applicant has
stated that this is not possible because a Project District requires a minimum of 50 acres of land area.
And as we'll discuss it in a minute,we believe that based on the shared ownership of the parcels, not
only the two subject parcels but surrounding parcels, we can find 50 acres to meet that Project
'District requirement.
The next slide I want to show is something that I didn't show in the original presentation. But when
we went back and we talked about it a little bit, we thought it would be a good idea to show you kind
of a graphic representation of what a TOD development could look like. There are two existing
TOD developments under,under process right now in Hawai`i County and actually in Kona, and
that's Palamanui and Makalapua; we were told that we probably shouldn't bring up any of those
images because they will likely come in front of this body in the very'near future for action, so we
didn't want to jump the gun on those. But we looked around to see other areas in the islands that are
doing this type of TOD development. And what you see here is from the Island of O`ahu, and this is
the Waipahu Neighborhood TOD site plan, or proposed land use plan. As you can see here—and,
I'm sorry, maybe a little be unclear to read—but the development is really centered around this rail
stop here in the middle, and it should be noted that in this case and in the case of most of TOD
developments envisioned in the State and by the Kona CDP,that the transit component is really
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EXHIBIT D
• r
central to the development of the area, and not just as an add-in of a bus transportation as is proposed
by the applicant. Now, the TOD development really allows for mixed several different uses,
including—within this pedestrian shed area,which is indicated by this dash circle—these include
mixed-use residential and commercial, with higher intensities and densities in the core around the
transit, as well as high density and medium density housing, which, as you get further out in the
pedestrian shed, you see some of those designations, some civic spaces, and then high medium
density live-work spaces,which means both residential and commercial in the same buildings, or
within the same block with each other. So,really,not wanted to get too heavily into the particulars
of this TOD, but just kind of give you a graphic representation of what it could and should look like,
and kind of comparing this graphic to what's being proposed for Puaa and Suffolk. Extending the
zoning under the existing zoning,the Neighborhood Commercial and Multiple-Family Residential,
would really only allow for kind of two of these colors, and that's, you know, commercial in the
Neighborhood Commercial area,with some separated multiple-family residential, and then another
separate multiple-family residential development,which is largely constrained by our existing
Zoning Code in terms of permitted uses and again densities that would be allowed under the existing
zoning. So, again,I'll just reiterate that the only way to really created a compact walkable
mixed-use neighborhood TOD development that's recommended by the Kona CDP, is through this
larger,more comprehensive project development and planning that's allowed by the Project District
zoning in, as recommended by the CDP and allowed for in our Zoning Code. And at this point I just
want to reiterate that although it would require a bit more of planning work on the frontend, it also
offers the developer some significant benefits in terms of increased density and a broader mix of
permitted uses than what's currently allowed.
Getting back to the question of the minimum 50 acres required for the Project District, and we
showed this the last time,this is just the ownership of the parcels in the area. This shows the
properties owned,the subject property here, the Puaa property and Suffolk property are the subject
properties, but the other remaining properties are also owned by Puaa Development,with the
exception of Suffolk. And according to DCCA records, the listed managing partner for Suffolk
Investment is Puaa Development. So there is an ownership connection there, and we believe that it
would be possible to consolidate those parcels to come up with the minimum 50 acres required, as
the parcels together are approximately 60, 61 acres.
So, getting with the next stated reason for our unfavorable recommendation, "The proposed request
does not conform to the goals, policies, and courses of action of the Land Use–Commercial
Development&Land Use–Multiple Family Elements of the General Plan." The proposed time
extension and amendments do not comply with General Plan Policies: 14.3.5.7.2 of the Land Use–
Commercial Development section states that"Controls to prevent speculative practices on
commercially zoned lands may be established"; and, 14.5.3(e) of the Land Use–Multiple Family
section states, "To assure the use of multiple residential zoned areas and to curb speculation and
resale of undeveloped lots only,the County may impose incremental and conditional zoning, which
shall be based on performance requirements." And we believe that that's what the original
ordinances did; they put in place several conditions that locks the applicants into performance of
developing multiple-family residential and commercial development. And,you know, a lot of the
requested amendments are asking for relief from those conditions. Construction was supposed to be
complete by 2015. Last time we made this presentation, we were unable to confirm that an
administrative time extension was requested. After the fact, the applicant did provide us with those
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documents. So there was an administrative time extension that was granted to 2015; however, with
that said, the applicants waited over four years to attempt to revive stale ordinances and is now doing
so to either sell the properties or secure a development partner. And in fact, if you look back at the
transcript from the last meeting,the applicant themselves, or their representatives, stated that it
didn't make sense to try and ask for a time extension before the time that they did when they didn't
have anybody on board to develop. Unfortunately,the ordinances do have those time frames in
place, and our code does require requests of time extensions prior to those expiration dates. So in
this case, the applicant is requesting kind of a large time extension to commence construction within
ten years and complete construction within 20 years. So what they are asking for is an amendment
to commence construction within five years and complete construction within ten,but they are also
asking for the ability to have an administrative time extension,which could multiply that up to ten
years to start and 20 years to complete. And in the case of Puaa,they are asking for another change
to say that completion of construction should be for either the commercial component or the
residential component and not both, as is currently represented in the condition. The applicants have
not demonstrated to the Director's satisfaction that they have a plan to complete construction in the
requested time frames nor have they demonstrated any recent efforts to comply with numerous
conditions of approval. As we stated last time, and very early on we met with the applicants'
representative and let them know that we were leaning toward an unfavorable recommendation for
many of the reasons we've stated here, and asked them to provide us with a detailed construction
schedule outlining how they could meet their requirements of the ordinances or what they were
proposing within the time frames designated. What they did provide to us unfortunately was just the
name of their possible development partner, Spring Capital, and at the last hearing they handed out
kind of a CV of some of the projects that Spring Capital had done,but other than that, even to this
point four months later they have not provided us with any kind of a detailed plan showing that they
can actually develop the property as is being represented. So at this point it's hard for us to find the
Director's satisfaction that they can actually complete within the time frame that they are asking for.
Secondly, within the last 15 years the applicant has had an opportunity to comply with other
conditions of approval. They stated that they had done some roadway designs and some drainage
designs andthings like that; however, there are several other conditions of approval, such as the
requirement to complete sewer studies; a requirement to do water calculations and get water
commitments, which they haven't done for 15 years; completing archaeological plans beyond just
the archaeological inventory survey; and then in the case of Suffolk,they were required to pay their
fair share for multiple-family residential units either prior to plan approval or within five years of the
effective date of the ordinance, and they have not done that, either. So, you know,we,the last,there
was a couple of applications we heard today,both Parker School and then Kona Country Club,
where it was stated that,you know, in the case of Parker School,they'd really shown a concerted
effort to comply with conditions of approval, and even in Kona Country Club it was stated by the
applicant and some of the Commissioners that they've been able to see that there was kind of a
concerted effort to actually comply with conditions. You know, in the case of these two ordinances,
however, outside of some really smaller types of condition compliance,there really hasn't been
much in the way of a lot of these other studies. And that's,the applicants' stated reason for needing
all this additional time is we need the time to do all of these studies, when in fact they could have
been doing this in the last 15 years, but they have not done so.
Next is the previous segmentation of the area in securing planning entitlements is inconsistent with
State Law. Subdivision 7814,which we showed before,was approved in 2004 and created a five-lot
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EXHIBIT D
subdivision, four of which resulted in lots just under 15 acres in size. In 2005, both Puaa
Development and Suffolk applied for and received approval for a State Land Use Boundary
Amendment from the, from Agricultural to Urban designation for their respective properties. At the
time of processing, these applications did not go to the Land Use Commission, as they were
represented by the applicants to be separate entities and under 15 acres in size. At the time the Land
Use Commission commented that they had strong objections to the manner in which the State Land
Use boundary amendments were being processed under HRS 205-3.1, Amendments to District
Boundaries. They believed that both the Village Center, Puaa, and the rental housing project,
Suffolk, were part of the same Pualani Makai Master Planned Community and the permitting was
deliberately incrementalized to evade the jurisdiction of the Land Use Commission. Although the
original 2005 Boundary Amendments were approved in an incrementalized manner, in order to
implement the TOD concept and Project District zoning recommended by the Kona Community
Development Plan, and the Director in this case, the applicant will be required to seek a State Land
Use Boundary Amendment from the LUC from Agricultural to Urban for the surrounding properties
that are under joint ownership. And, again,this is,this is a, can be a laborious process,but in order
to do it right,this is what will be done.
The proposed request will not result in a more appropriate land use pattern that will further the
public necessity and convenience and the general welfare. Based on all of the preceding
information, the Director feels that approving the requested amendments and retaining the existing
zoning would no longer result in an appropriate land use pattern that will further the public necessity
and convenience and the general welfare. As an alternative, the Director recommends that the
applicants pursue a State Land Use Boundary Amendment for the remaining two adjacent properties
and submit a change of zone to a Project District for the approximately 60-acre area, or at minimum
50 acres, to establish the Kahului-Puapua'a Village Neighborhood Transit Oriented Development
area as recommended by the Kona CDP.
For all of these reasons,the Director is recommending that we forward unfavorable
recommendations to the County Council for the proposed amendments for Rezone Ordinance 05-113
and Rezone Ordinance 05-115.
With that, again, I'll leave the presentation on the screen, if there are any questions related to any of
the slides that we've shared, and I'm happy to answer any questions the Commission may have.
CARR SMITH: Thank you, Christian. Mark, I apologize that I didn't go back to you for your
question. My bad. J, I think Mark might have a question for you. Go ahead, Mark. Use the
microphone, though, yeah? Use the microphone, please.
VAN PERNIS: First, I have a question for staff.
CARR SMITH: I thought you had a legal question to Counsel—
VAN PERNIS: Well, let me ask the legal questions first then. As the staff says,these ordinances
are stale. By that I take it to mean the requirements for the completion - --and project have all been
long since passed and expired before the applications were filed. Aren't the ordinances pau? Such
that they can't reverse record they extended as to those expired conditions for these proposed
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EXHIBIT D
• M
developments? Such that the applicants must file new applications for new ordinances? That's my
first question.
CARR SMITH: J, did you understand the question?
YOSHIMOTO: I did. I'm not sure what he is asking as it relates to what we are doing here today,
though. Because here,you know,we are here on the applicants' requests, you know, for, for
basically to amend their conditions. And so I understand his question in the context of what, of what
could be done or should have been done. But I'm not sure that that's something that the Leeward
Planning Commission would have authority over in terms of making that decision for them, for the
applicants.
VAN PERNIS: Let me be more specific. The ordinances have expired. The applications seek a
waiver or changes in the expired applications. So, aren't the applications also pau?
CARR SMITH: Christian, do you want to comment?
KAY: Yes, thank you, Madam Chair. So there is a condition in both ordinances. In the case of
Suffolk, it's AA, and it reads, "Should any of the conditions not be met or substantially complied
with in a timely fashion, the Planning Director may initiate rezoning of the area to its original or
more appropriate designation." So if I understand the question correctly, it doesn't automatically
revert to the prior zoning but would require an action on the Planning Director,by the Planning
Director to initiate rezoning of that area to original or something more appropriate. -- -here says
"may," so it doesn't prescribe that it happens; it says, "may."
VAN PERNIS: Christian,you said that they had until 2015 with the extensions to comply with the
ordinance. I'm not suggesting any change of zone or anything; what I'm suggesting, or what I'm
questioning is, since the ordinances were pau as of 2015, aren't the applications also pau? Shouldn't
they be applying for new ordinances?
KAY: I, I might let Jeff address this, or the Director, but I think as a matter of practice, we have in
the past allowed folks to come in after the fact to request amendments, including time extensions,
beyond the expiration date of ordinances. And I know that there has been a lot of discussion with
both the Leeward and Windward Planning Commission on what to do with kind of these stale
ordinances and stale permits. But, in this case, we did accept the amendment request applications
and have processed them and come to a recommendation, so, and we are at where we are at right
now and moving forward with what's in front of us. I don't know if Jeff or Michael want to address
that.
VAN PERNIS: Well,what I'm- - -the practice being not appropriate; I'm asking for your opinion
as to whether that practice of accepting applications for pau ordinances is, is legal.
KAY: In that case I'd have to defer to corporation counsel.
CARR SMITH: J, did you want to comment?
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EXHIBIT D
YOSHIMOTO: Yes, you know, if we want to go through a protracted discussion about this
particular issue, then we should go into executive session. All I can say for the record here simply
put is that Leeward Commission, Planning Commission, has what it has before it, and the
Commission has options on what it wants to do. I wouldn't let this—well, it's up to the
Commission, right,I mean if the Commission wants to hear or discuss this matter further in
executive session,then that would have to come on another date.
CARR SMITH: Thank you, J—
VAN PERNIS: My second—
CARR SMITH: Wait, Mark, Mark, you have to,yeah, so hold on a second,please, Mark. Maija, I
think you had something to add perhaps.
VAN PERNIS: Yes,I have a second legal question and a question for staff on their presentation.
CARR SMITH: All right, hold on,Mark. Maija, did you have a comment on this?
JACKSON: I do. So, I think the sticking point of misinterpretation here is that Commissioner
Van Pernis has said that the ordinance is pau, and it's not pau. There is nothing, there is no
condition in the ordinance that says that it shall automatically expire after a certain date, or there is
no condition in the ordinance that says if you don't perform,the ordinance automatically expires. It
requires further action on the part of the Planning Director,the Commission and the Council. There
is nothing in the Zoning Code that says non-conformance means the ordinance automatically
expires. So,just to be very clear, the ordinance is not pau and it does not automatically expire. The.
reason, what there is in the Zoning Code is language that says an applicant can come back and
request amendments to ordinances or time extensions to an ordinance through the Director, the
Planning Commission and the Council. So that's where we are; we have an ordinance,two
ordinances that are what we call stale, have stale conditions, the applicant has requested the time
extension, and now the ball is really in Planning Commission and County Council's court to say,
hey, you know, we don't want to offer those time extensions or, yeah,that seems reasonable. So
that's just some context of how we have handled the situation in the past based on, you know, our
legal limitations on what the code says and the ordinances do or do not say.
CARR SMITH: Thank you,Maija, appreciate that.
VAN PERNIS: Let me respond to Maija by saying that's a good argument,but under that argument,
every ordinance can go on forever.
CARR SMITH: That's what we have in front of us, Mark, so—
VAN PERNIS: Okay, let me ask Maija the other legal question. The applicants are asking for
deletion of the requirement of five acres going for a school lot, which implies, or states, that they are
going to take that five acres and include it in the development. Does this additional five acres trigger
the requirement for a new application to either the County or the State agencies involved?
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EXHIBIT D
CARR SMITH: Christian?
VAN PERNIS: This is a legal question about the five acres of additional development.
CARR SMITH: J?
YOSHIMOTO: I would have to defer that to the Planning Department;I am not aware of or familiar
with that particular condition.
CARR SMITH: Michael, did I see your hand? Planning Director—oh, I'm sorry, I thought I did,
you must have been scratching your head. Christian?
KAY: Okay, if I can try to address that. The condition requiring a five-acre set aside for a school
site was just a conditionof approval for that ordinance. It's part of the,that five acres would have
been part of the just under 15 acres of the project size. So this would be the appropriate venue to go
through to, request to amend that condition, delete it or otherwise, without having to,you know,
trigger it to go up to State Land Use Commission or anything else; it's just part of the under 15 acres
that is under the purview of the Planning Commission and the County Council. If I understand your
question correctly.
VAN PERNIS: Thank you. I have a question of staff,which is you said that they are asking for the
deletion of the affordable housing requirement,which is to construct the affordable housing, and- - -
refer to a standard language on affordable housing. What standard language are you referring to?
KAY: Generally that 20 percent of the units developed within any development would need to be
affordable as designated by the Office of Housing and Community Development and HUD
guidelines. So in this case, at the time they were granted the change of zone back in 2005,they
represented that they would go above and beyond the normal requirement; they said where
20 percent of these units we will rent them at 80 percent or less than median income,which—and
the remainder would be at 120 or less—I believe the standard requirement is - --under at 120 or
less. So I think in this case they are asking for all of the units that would be designated as affordable
units to be under at 120 or less. That's how we- - -I guess maybe the applicant can address that at
the time. But they are asking for relief of a condition that was placed on that based on their
representations back then.
VAN PERNIS: My understanding is they are seeking to not build affordable housing or rent
affordable housing but to allow some undesignated property be submitted in lieu of affordable
housing so that the property could theoretically be used by the County, if the County had any money
to build affordable housing. Is that not your understanding?
KAY: So I think at the time—and Sid even said this at the last hearing,reading through the
transcript—at the time the County Council really wanted to see actual affordable housing developed
and not use in-lieu credits,which is also a possibility that's kind of standard language in our, in our
housing conditions of rezones. In fact, for Puaa, the village,pardon me,the neighborhood
commercial, there is a condition that states housing shall be a part of this project, and then it goes on
to link the development, or the ability to obtain a certificate of occupancy for any commercial to the
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development of actual housing. They are asking for relief from that requirement as well so that there
is no tying the actual having to build housing to commercial development. So I will let them address
that as to what their intentions are,moving forward. On the record they've stated they intend to
develop affordable housing. But looking at the request for relief of conditions that they've
submitted, it would really decouple the development of housing from the development of
commercial, and there would be nothing holding them to developing housing, if those conditions
were, amendments were granted. Part of going through the Project District process includes a
phasing plan,which speaksIo when housing would be developed relative to commercial, relative to
other type of uses. So that's another reason that we are recommending going that direction, as is
consistency with the CDP - - -
VAN PERNIS: - - - developing affordable housing, I'd like to use the word"construct" affordable
housing. So you are understanding that they are proposing to delete any requirement to construct
affordable housing and instead submit some undefined property at some undefined location and
some undefined price?
KAY: Again, maybe I would, I would let the applicant to address that. I don't want to get into what
their intent is or however it is. All I'm saying is, based on the types of amendments that they are
requesting right now, there would be no conditions holding them to actually developing or
constructing housing, other than time conditions for Suffolk saying that they would develop,you
know, if granted their amendments, in the next 20 years, some type of housing development. And if
they go with what the standard language is for affordable housing, then they could use in-lieu
housing credits or things like that where they wouldn't actually have to construct onsite housing.
But, again,that's something that I'll let them address. Because we haven't seen a kind of a detailed
development timeline or any other type of assurances that housing is going to be built and when, I
can't answer that.
CARR SMITH: - -- sorry, I was muted. Do other Commissioners have questions? Mike. We are,
we are questioning staff.
VITOUSEK: Yes. Yeah,pretty complicated deal here. But, basically, if we could boil it down to
being looking at the project as being proposed, right, does the staff have issues with the project
itself? Or are the issues with the process to get to that project?
KAY: I would say that the development as is currently proposed in the site plan and as is, as would
be allowed by the,by continuation of the existing zoning,would not allow the type of development
that is envisioned and recommended by the Kona Community Development Plan for a mixed use,
walkable—I'll go ahead and, if I can reshare my screen, I'll throw back up the- - - site plan, and
maybe it will help kind of address what I'm looking at, or what we are looking at, sorry,not quite
sure how to do this, otherwise, okay, oops. So, again, what you see here in their,the proposed site
plan for the Pualani Makai Master Planned Community you guys can see this, okay—is really
what is allowed under the existing zoning. For the Neighborhood Commercial, you have the ability
to do both commercial and multiple-family residential, which is being proposed,but then completely
separate from the other multiple-family residential that's being proposed on the Suffolk lot that, you
know, requires setback separation that requires, you know, whatever density is allowed for
development on that property; as you can see here, for these folks to access the commercial area,
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EXHIBIT D
they'd have to jump in their cars and drive up the access road to get to the commercial area to go to
the drug store or the offices or whatever else. What the CDP,what the CDP envisions, and that's,
you know,more consistent with this type of mixed-use TOD development is kind of all of these uses
taking place in one area and allowing for a higher density around the transit area in the commercial
core, lower density on the outside, but then mixed uses of, you know, living and working in the same
buildings, in buildings next door to each other, and things like that. Under the existing zoning, this
is impossible. So, I mean,ultimately,your, your question initially was, do we have an issue with the
development? And the issue is, yes, the development is inconsistent, as is currently proposed,with
what the CDP calls for. And as that's one of the kind of criteria to look at, consistency with the
existing plans,we would say that, yes,we have an issue with what's being currently proposed. It
was, it's inconsistent with the CDP that came into, into view three years after the ordinances were
granted, but because they are coming in for a time extension and other amendments, we have to look
at what the CDP calls for in the area, and that's kind of where we are at this point. Does that answer
your question, Mike?
VITOUSEK: - - -
KAY: Mike, you are muted.
VITOUSEK: Thank you. So the- - -
CARR SMITH: You are still muted for some reason. There you go.
VITOUSEK: Is it still muted?
CARR SMITH: No, go ahead.
KAY: No,we can hear you.
VITOUSEK: Okay, cool. Yeah, so the inconsistency, then, is that the development that's being
proposed is not dense enough for the area?
KAY: It's, it's not just density; it's density, it's a mix of uses, it's walkability, it's any number of
things that the CDP calls out,which unfortunately cannot be developed under the zoning that's
currently set up at this point, so, yeah.
VITOUSEK: - - -because of like the walkability,there is no way that we can connect the two. Is
that what we are saying is that the zoning prohibits like construction of walking path that would go
between the two properties?
KAY: There is no prohibition there. And, you know, Maija and I have talked a lot about this, so
I'm going to, I'm going to tap her in,tag her in, if that's okay, Mike, and she can address that.
VITOUSEK: Sure, of course.
CARR SMITH: Go ahead, Maija.
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JACKSON: Hi. So one of the main differences,Mike, is,with this current zoning and what they are
proposing, you have land uses that are segregated; you have your commercial in one area, you have
your housing in another. And when you don't integrate it, either within one structure with like a
live-work unit or very close to one another, then the community,the area becomes less walkable.
You have to get in your car, the tendency is to get in the car,to go from the housing area to the
commercial area. So the Project District zoning will allow not only greater density but a lot higher
percentage of mixing the uses together so that these areas do become automatically more conducive
to walking and biking.
VITOUSEK: So that's a nice idea, of course, you know, I mean it's great. Does that solve our
housing issue now? I mean we have this pressing issues where we don't have housing for people
and,you know, the idea that what they have presented to us is, is pretty close to what we are
suggesting, you know, in terms of mixed use where you've got some residential, you've got some
multi-family. They are pretty close to each other,they are connected to each other. They could be
more connected. I don't know if that's something that can be worked out between the applicant and
the office. But,I mean, is it, is this, you know, is this going to make it more difficult for our
community to get the housing that it needs?
JACKSON: I would say not necessarily, I mean, the current request that the applicant is making is
actually a lot of relief from providing affordable housing units. So I would, you know, suggest that
what they are proposing isn't going to necessarily get us any closer to providing units on the ground
in a short time frame.
VITOUSEK: And I agree with you there; I don't necessarily think the changes to the zoning
conditions are appropriate, you know, given the need for it now. I think the time extension is too
great. But, my question is if we would be better served by maintaining the existing zoning and
reconditioning it to make it suit out community's needs now versus kicking it back to Land Use
Commission and Project District that's going to extend this way beyond the,you know,ten-, 20-year
period that,that is being proposed here.
JACKSON: Yeah, so I, I understand your concern, Mike,just because of the time it takes to go
through these planning processes. I would just remind you that the developer, the applicant has not
provided us with any timeline or guarantee at this point. So I can't really speak to how long their
proposal is going to take or if it's going to pan out. But what I can tell you is the Planning
Department has to advise the Commission based on the plans that the community has created. And,
you know,the CDP says we need affordable housing, the CDP also says we want more walkable
TODs and more walkable commercial communities. So we have to balance that, and I don't think- -
-necessarily throw either of those ideas out the window. I think the Director, and he can speak to
this, would feel a lot more comfortable, if the applicant would provide some more solid timeline on
when housing could be provided, or if it's even going to be provided on site.
VITOUSEK: So, again, you know,I definitely agree, but I think that,you know, looking at the
extension, the zoning extension, from 2011, it indicates that,you know, the Kona Community
Development Plan was adopted after the fact, and it kind of offers help from the County to the
developer, saying, hey, if you need help in complying with the guidelines established in the
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Community Development Plan,then we can help you. You know,the whole purpose behind,you
know, three months ago when we asked for deferral was I think the Commission was hoping that,
you know,the applicants and the Planning Department would fully back up and try to solve these
issues so that we are not in this kind of uncomfortable position of trying to mediate something. And
I feel like if we have this goal of providing housing or providing commercial space,we have this
kind of a mixed-use type area,which existed prior to the Kona Community Development Plan. And,
you know, it's kind of like a chicken-or-the-egg where we've got this thing that existed previously,
now we are trying to incorporate it into the Plan. Is there a way where the applicant can work with
the staff,with the Planning Department,to make the existing zoning work so that we don't have to
kick it further down the road and change zoning and go to Land Use Commission and all that? Is
there a way that we can accomplish that by working together?
CARR SMITH:-That's a very good question. I support that question, and I'd like to know whether
there has been any communications and any efforts trying to work out any of these details. Can the
Planning Department confirm or deny whether there has been any efforts made since February?
KAY: We met with the applicants' representative shortly after the February hearing, had a
conversation in the Director's office, and really what came out of that is a determination that our
recommendation wasn't going to change,that,not just for consistency with the CDP but all the other
reasons we stated for the unfavorable recommendation. We were just going to move forward with
that. And from that point, that's kind of when,when the world turned upside down. So we haven't
had any additional meetings since then about that.
CARR SMITH: Mike.
VITOUSEK: Does the, does the County have any ideas on what could be done in order to turn this
into a favorable recommendation to maintain the existing zoning and allow them to proceed? Or is it
a hardline on the Project District is the only way to accomplish the needs?
KAY: I,I think,just my opinion and I'll certainly defer to the Director on this, but based on what
the CDP calls for and based on the limitations of the existing single zoning as they are, there's really
not a possibility to kind of even get close. If you add into that, then the extensive relief that's been
requested by the applicantion developing anything other than commercial development there, it's
very difficult to find the middle ground. But that's just my, my response, and I'll let the Director
respond, as it's his recommendation.
CARR SMITH: Director, do you have any comments?
YEE: So, yeah,besides the meetings that Christian just spoke about,we certainly have had internal
meetings among staff to talk about this project, more, more than once, soon after the hearing in
February and thereafter a couple more. So I think we've tried to take a reasonable look at options,
and I still fell under the recommendation that I had before. So I'm hesitant to sit there and say, yes,
there is an option, because then all of a sudden we'll get into conversation about, about not going
forward with my recommendation, right? So I'm hesitant to want to sit there and say—now,people
who know me, also I try never to say never. I try to listen if there are good options out there,too.
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But I think we've kind of exhausted our conversations on this up to now. So that's my general
comment for now.
CARR SMOTH: That seems to, a lot of what you are proposing seems to be based on something
that doesn't really sit that well with me, and that's with you recommending to the property owner
that they pull in other property that they own and combine it into a Project District. Is that really
typical to address property other than the applicants are in front of you for?
YEE: No, I would—I see Christian raising his hand, so I'll let Christian first. Go ahead, Christian.
KAY: I think more than anything we were responding to the applicants' assertion that there wasn't a
possibility to meet the minimum required acreage for a Project District, and we were saying that in
fact with consolidation there is. And, really, even in the areas where there are multiple landowners,
that's still what the Plan calls for in those areas. A little more difficult in those other TOD areas
where there are multiple landowners to get everybody on the same page,but in this case it's a bit
unique in that all of the properties in the area that would make up that minimum of 50 acres are
either owned or controlled by Puaa Development. So I think our, our recommendation is a more
appropriate zoning,which,which the condition calls for that the, and in this case the more
appropriate zoning would be the Project District. So, yeah, I think in my opinion it's appropriate to
make that recommendation because that's the part of the authority we have to make the
recommendation for a more appropriate—
CARR SMITH: But they have zoning,right? They have zoning, and they are making a proposal—I
see you, Mark and Faye, I'll be with you just, in just a minute, I want to speak as well, thank you.
KAY: They currently have zoning that is stale,that would need the time extension to continue to do
anything on the property.
CARR SMITH: Right.
KAY: And so, again,the condition of the existing ordinance says if they are not met, or conditions
not met or substantially complied with in a timely fashion,the Planning Director may initiate
rezoning to the area to its original or a more appropriate designation. So in this case,the Director is
not initiating the zoning; he is recommending that the applicant move toward the Project District,
which is the more appropriate designation in this case. In order to move, in order to refresh the
ordinances and move a project forward.
CARR SMITH: I guess all I'm saying, and then I'll move on, is that I wish that the Department was
trying to be more cooperative with applicants that are proposing to develop something that develops
a new mauka-makai road, which would be a benefit to the community,there is commercial involved,
there is rentals involved,which,we desperately need the housing. And it seems like it's just maybe
not jibing with the definition of the TOD that you guys want,but we are not O`ahu and it's not going
to look like Oahu looks, hopefully. So that's all I have to say right now on that. Mark, go ahead.
VAN PERNIS: - --
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EXHIBIT D
CARR SMITH: You are muted. Noriko?
VAN PERNIS: - - -
CARR SMITH: Okay, anybody else until we get—
DARROW:
etDARROW: Rachelle, can you, can you unmute them, Rachelle?
LEY: He's unmuted.
DARROW: Okay, thanks.
CARR SMITH: Okay, go ahead,Mark.
VAN PERNIS: - --
CARR SMITH: Go ahead, Mark.
LAY: Their microphone is not on mute. It's under Noriko's name, right?
CARR SMITH: Yes.
LAY: Yeah, is your, something wrong with the microphone? Is Alex there to check?
CARR SMITH: Okay, anybody else? Perry? Max?. You have—go ahead, Perry.
KEALOHA: I guess following up on Mike's questioning in light of the conversation that's being
going on, so if I'm hearing this right, as far as part of the County's view on this, because they are
trying to piecemeal this project to avoid certain hoops,they are not able to achieve the goal as far as
this TOD is concerned. So if they were treating this as one property, could create appropriate
walkways and so forth,to meet the general requirements, but because they are piecemealing it, they
need to have the appropriate setbacks that will kind of be in the walkways and the properties aren't
adjoined in any way. Is that the right understanding?
CARR SMITH: Christian?
KAY: I think, again,under the existing zoning—
VAN PERNIS: Am I heard yet?
KAY: —under the existing zoning, it's, it's kind of impossible to get to that preferred development.
It's not that we don't want to see it or anything like that; it's just kind of not possible. And it
provides you what you see they're proposing is kind of these separate uses, commercial separate
from housing, separate from other housing that requires getting into a car and going to commercial,
and things like that: So,that, hopefully,that answers your question.
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EXHIBIT D
CARR SMITH: I don't under-how,why is it not possible to walk from your apartment up to the
commercial? Maybe there's easements or whatever. Why is that not possible? Or what makes you
think that people will get in a car as opposed to walking? They'll even walk down to Kuakini and
walk into the village.
KAY: If, if we are looking at kind of what's being proposed, that's,that's kind of the way that they
would do, and it's more consistent with kind of suburban separate development, auto-oriented
development, versus a mixed-use,walkable, commercial and residences mixed in the same place that
the CDP is looking for and what the CDP asks for, since the CDP provides a process and the
framework for doing that through the Project District. I,you know, I don't know if people will get
out, you know, and walk up to the commercial or walk down. I'm certain that some would, but
most, at least as what's being represented in the site plan,would almost require that.
CARR SMITH: Okay. All right, let's move over to Noriko's—
VAN PERNIS: Can I—
CARR SMITH: Go ahead, Mark.
VAN PERNIS: Can I be hard? Am I, can you hear me out?
CARR SMITH: Yes.
VAN PERNIS: First of all, I want to point out to Mike and to Ms. Smith that they have a false
assumption that there is affordable housing going to be built. They, my understanding is that they
are asking that the affordable housing not be built,that there not be affordable housing.
Secondly, I would point out that the CDP has the power of law; it has to be complied with. Supreme
Court has decided and states very broadly.
And, thirdly,I wish to point out that I've thoroughly studied this project and spoken with some of
the people who have filed their statements, and I wish to point out that there is a major, major
infrastructure problem that this project creates. So it got all the design—and I'm not suggesting that
it be returned to Ag,I think that it should have appropriate zoning but that you folks are not yet
considering what I believe Mr. Fuke will admit is a major, major infrastructure problem that the
applicants are going to cause and not address.
By the way, the other Commissioner here wants to talk.
CARR SMITH: Yes, go ahead, Fa
e.Y
YATES: Yay, finally.
CARR SMITH: Yes, sorry—
YATES: That's okay-
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EXHIBIT D
CARR SMITH: Everybody has a lot to say. Thanks for being patient.
YATES: That's okay. Well, first of all, I mean we all realize housing is at the shortage, and it
would be a great thing to be able to have more shortage [sic] but, again, you know,I went to school
here at Konawaena High School more than 50 years ago; the road, Kuakini, has not been improved
to any way that will be, you know, conducive to traffic these days. And I know all of that has to be
done. So, again, it has to do with the infrastructure.
Secondly, can,you know, when you build all of these homes, etcetera, etcetera, who, the County has
to come up with monies,has to come up with workers, has to come up with maintaining,I mean they
are saying a park, so who is going to maintain that park? We need more County employees. There
is a lot of things that needs to be taken into consideration other than having affordable housing. And
then, of course, yeah,people, you know, may walk around and, but, my biggest concern is, you
know, can our County support this, you know,with the maintaining the road—or are the developers
going to maintain the road? Are they going to also take care of the parks? Are they also going to
provide transportation? Maybe the transportation to the commercial areas? What's going to
happen? This is my concern,you know. It becomes a tax burden on all of us. So, are the people
that buy into their place, they are going to be responsible for their taxes to take care of where they
are? As we all know, you know, all of us are paying an exorbitant amount of taxes to be able to
support our County. So all of these things to me are something that needs to be considered and, you
know, unfortunately, it's a good idea,but I have to agree with our Director that, you know, maybe
now is not the time or maybe more thought should be put into it so that it's not a tax burden on all of
us. Thank you.
CARR SMITH: Thank you. Max, do you have any questions for staff?
NEWBURG: At this time I don't have any questions, but just merely, simply put that the request of
exemptions being made by the applicant seem to far outweigh what they are offering as a project.
We desperately need housing, but I just don't see between what they are proposing and what the
community needs coming together. I just leave that as my statement.
CARR SMITH: Okay,thank you. Maija.
JACKSON: Thank you, Chair Carr Smith. Can I just close with one more idea? When the Planning
Director makes a recommendation, what we do is we look at for zoning, we look at whether the
zoning is the most appropriate land use, I'm sorry,the most appropriate zoning for that area in order
to create the best land use pattern. So I know there is a tendency on all of our permits to look at
projects rather than the zoning that's being requested. What we are saying in this case is right now
the applicant has Commercial and Residential segregated zoning districts, and what we are saying is
a Project District would be the more appropriate zoning district to create the land use pattern that the
Kona community has said that they want to see in this area.
CARR SMITH: And that would- - --traffic, right?
JACKSON: I'm sorry,what was that?
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EXHIBIT D
CARR SMITH: That would create more density and more traffic in that area.
JACKSON: It, it may create less density, if it's designed in a more walkable way. That's the goal.
CARR SMITH: Mike, did you have something else? Mike Vitousek? No? Okay. All right.
Anything else, anyone?
VITOUSEK: Yeah,I do have one more, one more question.
CARR SMITH: Okay.
VITOUSEK: So would the Planning Director then initiate the change of zoning as is indicated in the
change of zoning ordinance?
JACKSON: I'm going to answer that,but, Michael, chime in, if you want to. So if the Commission
and the Council were to determine that this wasn't an appropriate zoning any longer, then the
Director would initiate procedures to change the zoning.
VITOUSEK: And how does that work for the additional properties that would add to get to the 50
acres? Does the applicant have to opt into that in order to have their zoning changed?
JACKSON: That is a great question. We would have to have that conversation with the applicant,
and we would also probably have to have an internal conversation of whether the Director should
also initiate a change to the Zoning Code to reduce the minimum acreage to create a Project District.
So there is,there is different things we can look at, if the applicant isn't amenable to including other
properties.
CARR SMITH: So, is—okay,Mark, go ahead.
VAN PERNIS: - - one thing, everybody has been assuming the applicant here is going to be the
developer. I want to remind you that there was a statement shared at the February hearing that the
applicant represented by Mr. Cook is not going to develop, has no ability to develop, nor is
Mr. Schuler,the man behind Mr. Cook - going to develop,but this is a sale. This is a sale to
another developer who will not commit to when or where he will develop, or when, and that what we
are doing here is just promoting this sale by Mr. Schuler to this developer who will sometime in the
indefinite future develop,perhaps be the seller themselves. And I think that the true developer
should apply when it plans to be developing—
CARR SMITH: Okay—
•
VAN PERNIS: —and have public review at that time.
CARR SMITH: All right, thank you. Okay, Christian.
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KAY: Just really quickly. Before we get to the applicant, I did want to point out that we did receive
a significant number of correspondences after the February meeting in terms of public testimony
from neighbors,the evidence of the administrative time extension, and we also got response from
State Department of Transportation relative to their review of the traffic impact analysis report. And
so I just want to point that out and also to address the possible reopening of public testimony so we
could accept those testimonies. That's all.
CARR SMITH: Thank you. All right, we'll get to the public testimony after we hear from the
applicant, as we usually do, right? That was the plan anyway, Christian, correct? Thank you. All
right,Mr. Fuke,you and your guys are there and ready to go? We need to swear you in. Is
everybody okay? Do we need any breaks at this point? - - - Okay. All right, everybody raising their
right hand,please. Mr. Fuke, Mr. Cook and Mr. Van Bergen, and Mr. Okaneku,thank you. Do you
swear and affirm to tell the truth on this matter now before the Leeward Planning Commission?
APPLICANTS' REPRESENTATIVES: I Do.
CARR SMITH: Thank you very much. Can you one at a time please state your name and where
you reside for the record?
FUKE: Good afternoon, Commissioner, Madam Chair, Commissioners. My name is Sidney Fuke.
I'm a planning consultant. My residence address is Hilo, Hawaii. My role is essentially to assist
the applicants with the processing of the time extension and- - - amendments. With me today are
Brian Cook, the landowner, representing the landowner developer, and also Ken Van Bergen who is
representing the developer---. You want me to just kind of continue on or?
CARR SMITH: Go ahead,yeah, go ahead.
FUKE: There have been a lot of material that have been already sent to the Commission, a lot of
internal discussion,you know, among the, between the Commission and the staff.. And before like,
kind of like going on further,I'd like to just kind of indicate, as the staff had noted, one is that, you
know, this is a neighborhood shopping complex that has about 380-plus housing units of which we
propose like 226 would be in the rental market. There is a transit station. There is a new
mauka-makai road, which would be developed by the landowner, complete with curb, gutters and
sidewalks. They are going to be doing expanded signalization at the Puapua'anui intersection, so on
and so forth.
Now, there are like two,I think, like discourses, I get it, like one was the whole notion about like all
or nothing on the conditions. True, the applicant has proposed like about ten or eleven different
amendments. Now, it's the responsibility I believe of not only the staff but also the Commission that
if you like ten and you don't like the eleven,then your obligation would be to recommend its
approval or denial on certain things. So please do not regard this as being like an all-or-nothing. So,
specifically, as it relates to the affordable housing condition, that is true, the applicant had proposed
that as far as the rental unit,the demarcation of certain percentage be set aside for 80 percent and
below and the rest in the pool are like rental area; that language was being proposed to be deleted.
Now, if on the other hand, based on all of your considerations,that you believe that that condition
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should still be retained,then that should be your recommendation. But don't-let that one condition
be the downfall of the rest of what the applicant is requesting.
Secondly,the whole notion about walkability,mixed-use, so on and so forth, I tend to disagree with
the staff's finding that you can't integrate the two properties to achieve the walkability and the
mixed-use style -- -. True within the Multiple-Family zoned area; it's going to be limited only to
Multiple-Family activities. But within the commercially zoned area,you could have like a
combination of multiple-family and commercial uses, which is what the tentative plan calls for right
now. Further, the distance between the two area is not like two miles; I mean you're basically
talking only like about 100 or 200 yards differences. So if there is a desire to kind of integrate both
areas, then it can easily be done through what it's called administrative process of plan approval. So
which is one item that,you know, in my discussion with the Planning Department, I'm saying like,
look, if you want to achieve like some of these TOD kind of objectives, it can be done short of
adequately vetted by the Kona Design Center, which sometimes can take you like so, so long, but
you can do it through the plan approval process; you can require like there be,you know,this kind of
physical integration---happens. I know that for a fact because there have a number of projects that
I've worked on in the Hilo area,but it kind of like mandated driveway accesses and pedestrian
accesses - -- - adjoining properties, then in the beginning the adjoining properties objected but at the
end of the day they agreed like how it's,you know, like how it's functioned.
Now, having said that,I think a couple of things I wanted to speak to relative to the regulatory end.
The General Plan was adopted in,you know, like in 1970-71, and the most current one,which is
what we are operating today,was adopted in February of 2005. The zone change was adopted in
August of 2005. So at that time it was a decisionmaker, and the Planning Commission and the
planning director, they all concluded that this project meets the requirements of the County General
Plan. Then we had the CDP, the Kona Community Development Plan,which was adopted in 2008.
When we went through,the applicant went through for the initial time extension in 2001, excuse me,
2011, at that time the planning director concluded,number one,you are, the project is consistent
with the General Plan; number two,the project is consistent with the Kona CDP.
Now, what has happened on the Kona CDP since the adoption in 2008,there have been some
amendments that occurred in 2019,just last year. And the specific amendments as it relates to the
land use component basically said that it's not a mandate in terms of going through the Project
District, but it would encourage the developer to go through the Project District process, because,
you know what,we'll help you guys out,we'll speed it up, we'll support you guys all the way, and
we'll take it through the Kona Design Center, and we'll get it through very quickly.
Now,usually,when the Department or the Commission considers a recommendation for denial, the
denial is, you know, on the General Plan,you say like, well, it's not consistent with the General
Plan, so if you want to propose a resort activity in an area that's not shown on the General Plan,then
obviously you are out, you know; there is no way that statutorily you can recommend its approval.
And then, you know, you look at, in this case,the case, you know, you have a Medium Density and
Urban Expansion on the General Plan. The zoning is already consistent with that, as approved in
2005 and as approved by another planning director in 2011. So how can you tell me in 2019 this is
not consistent with the County General Plan?
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Then you look at for other reasons why the Commission or the Department might recommend
denial. The infrastructure ---; you don't have enough water,you don't have enough sewer,you
don't---. But here is a situation,you have the water, there is a county sewer line right below the
street, and the State Department,there's a traffic study done, their mitigation has been proposed
pursuant to an approved traffic study by the State Department of Transportation. I just mentioned
that, you know,the Department of Transportation reviewed the traffic study, and they concurred
with that study.
The other reasons why like maybe a project might be denied is that you have unresolvable
environmental or also historical issues. Say, for example, you have a major floodway going through
the property;there is no way that you want to have development be occurring in that area. Or if you
have like archaeological sorts of things that cannot be resolved,then, you know like,then they are
basis for its denial.
So then,you've got to ask yourself like why is the Planning Director recommending—if you look
through, you know, like three or four pages and 15 minutes of recitation of the reasons why, you
know, they talk a little bit about the General Plan saying speculation, they are talking about
separating the Land Use Commission process. But the linchpin argument is really that if you want
the project,the landowner, to go through the State Land Use Commission at the Project District
rezone,now we all know that that's a process that's very time-consuming, that's very expensive, and
most critically,you don't know the outcome. Maybe you like the project. But what if the Land Use
Commission denies it or imposes conditions that are totally, amount to like an impossible situation
for the developer to pursue.
So what it boils down to I think, there are two ways of like how this application can be processed.
One is that you can take what the Director or the staff has recommended, stay denial, and then force
the developer to go through the Project District and the State Land Use Commission ---, and I've
already explained some of the liabilities behind all that. Or on the other hand,you can take the
recommended approach; you can pick and choose what you want from the conditions to favorably
recommend and conditions youdon't want to favorably recommend,but take it up to the County
Council and let the Council make the decision.. Now, in so doing,what you do is that you are
keeping the decision-making down to this level; you are not kicking the decision-making up to nine
Land Use Commissioners of which seven of them don't reside on this island. So I guess what I'm
asking,you know, as dealing really like with this Commission, is that if you can put your real life
common sense to the end result and ask yourself,you know, given the County's high unemployment
and the economic uncertainty especially created, excessively created,by the COVID-19 issue, you
know, shouldn't government be more encouraging and supportive of private initiatives? Especially
on a project that,number one, is consistent with the CDP and the General Plan, as recommended,
you know, by planning,two previous planning directors and the County Council,project that could
help the economy,provide much needed jobs, provide goods and services, provide affordable -
housing both for sale and rental, provide much needed road connectivity between Kuakini Highway
and the Queen Ka`ahumanu Highway extension.
So I presented to you at the last Commission meeting, and I think I also emailed it to Planning staff
to provide it to the Commissioner who was not there, you know,proposed recommendations for both
the Suffolk and the Puaa applications. Now,I had to do that because otherwise, you know, should,
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EXHIBIT D
you know, if the Commission, hopefully, sees it the way that,you know,we are seeing, I'm hoping
that the Commission would act, and if you recommend favorably on all or a portion of it,you would
need to have reasons for its favorable recommendation. You would also need to have corresponding
amendments to those. So that's what I did.
One final thing I'd like to kind of mention is that,you know, in what I presented on the affordable
housing,the existing condition—and even the proposed condition, even if it deletes the rental
portion,the subject property already was entitled to 50 affordable housing credits—the existing
condition right now, and we are not proposing any amendment, is saying that,you know what,you
cannot use any of those affordable housing credits to offset your affordable housing requirement,
and, two,you cannot buy credits and you cannot, it will,your, satisfy your requirements off site;
they have to be on site. And that's explicit in terms of what the existing condition states. So,
therefore, if the affordable housing,the rental component, is a very critical issue for the
Commissioners, and I kind of sense that it is,then my recommendation is that if you look at
Condition, Condition B, the new Condition B,then you leave the wording in, and that wording
basically says, further as represented by the applicant, a minimum of 20 percent of units will be
rented at 80 percent or less than median income level and the remaining at 120 percent or less than
the median income level. So that was what we were proposing to delete. If you cannot agree with
that,just recommend its denial on that component. But don't let that one issue cause you to, to
recommend denial on the entire package of requested amendments.
I had mentioned earlier, Brian Cook and Ken Van Bergen, landowner, developer, and also on
standby is Mr. Okaneku—he is in a position to answer any traffic-related questions that the
Commissioners may have. Thank you very much.
CARR SMITH: Thank you,Mr. Fuke. Were Mr. Van Bergen or Mr. Cook planning on speaking?
COOK: Yes, Madam Chair. I'm Brian Cook representing Puaa Development, Suffolk—
CARR SMITH: Can you speak up?
COOK: Yes, I can.
CARR SMITH: Thank you. Go ahead.
COOK: Yeah,we acquired the property, 62 acres,back in 2004, zoned Ag agricultural property.
We felt like at that time there was a need in central West Hawaii to develop a project that would
provide affordable rental housing and commercial shopping center,that we felt like that area is
central, and as it turned out,that area became a Neighborhood TOD; so someone did agree with
the - --. And we got it rezoned for Neighborhood Commercial, CV[sic]-20, and RM-2.5 of the
brown. We felt like at that time that we needed to provide housing for local people that can't afford
place,that were currently - --. And so we felt like an affordable rental housing project would be
very important where we would have rental rates below market price affordable rental housing---
beginning I felt like, well, if we -- - affordable rental housing project of 250 units, and we set aside
20 percent of them at 60 percent of rental rates, and then we set aside 60 percent of it at 80 percent
of the low-income rates, and the final 20 percent at 120 percent, and so that's how we started the
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EXHIBIT D
affordable rental housing onset. The commercial property,we felt like being right--- it would be
ideal for neighborhood shopping center with a supermarket, drug store and then some of commercial
businesses there. Anyway,we came up with our initial master plan, so 250-unit affordable rental
housing,we had a neighborhood shopping center and 100-unit condo project.
Since that time- --process for rezone, and then as we got the property zoned,we went forward in
getting the project designed. We approached the area of the flooding, the maps that they had at that
time when D.R. Horton developed Pualani Estates, they had maps that showed that the stormwaters
ran from property to the north of Pualani Estates, and they designed a gunite concrete channel that
ran through their project to have the water flow into. Well, as it turned out when we started doing
our drainage study - - - and we had the area- --two-foot boundary. And then we took that area all
way on the northside of Hualalai Road, and there is a two-foot- - -found out the floodwater did not
align the area where they said, and floodwater can- --to the gunite channel. So we went to the
extent of getting a CLOMR down the old area, and found that floodwaters would be coming across
Hualalai Road into property north of us and to two lots that we had acquired just adjacent to Pualani
Estates on the northside. And so we hence realized that we had to design a good drainage system for
the whole area there. And so we had our engineers go ahead and design basically a split-flow tube,
which would go through those two lots into the gunite channel, and then where Pualani Estates entry
road is - -- gunite channel, it went into a multi-throat box culvert that crossed the entry road to
Pualani Estates into the area, park area. And at the low point there was a—the State had designed
and installed the eight-foot concrete, diameter, concrete pipe to take care of any floodwater crossing
- - -highway. Our study determined that the floodwater would come across, breach over the
highway some 400 feet and to our property below. And so we had to design an aluminum
multi-plate culvert crossed under the state highway, and that multi-plate culvert ended up being
designed at 20-foot wide, 14.5 feet high, and we designed it to be 135 feet long - --highway. As the
water then entered into our property,we designed a concrete headwall and a 40-foot wide concrete
U-shape channel going through our property, and every 50 to 70 feet we got velocity breakers where
the water hit turbulence and slowed down, and that just above Kuakini Highway we designed an
about 2.5-, 3-acre basin that's about 25-, 30-foot deep to collect the water. And we had drywells at
the park, and we had—anyway, we did design the whole system to protect that area from the
100-year storm.
And then after that,we got into the design of our project where we - - -the neighborhood shopping
center, we have housing there, and we've got the affordable rental housing project. And we did all
that and started in 2005,we got the zoning, and by late 2008 we had most of the design complete,we
had the plans, went to the State Department of Transportation for the culvert crossing - --, and it was
finally approved in 2010. The market balked back in 2008, and we got burned; we were not able to
go forward. So there were,there were delays and,with the process of moving forward. And,
anyway, we were,we were hopeful that we could get our---after 2015. Anyway, so it has been a
lengthy process and, we, myself I will be 83 next month, I'm approaching - --, and Mr. Schuler will
be 82 in September, or October, excuse me—
CARR SMITH: Okay—
COOK: —and so we were looking for someone that was younger that can take our project with
finance--- so expensive, but we - - -work design of the roadways and do that sort of thing, it's
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EXHIBIT D
32 -- -, but that done,we could have done it. But at this time, as time - - - development- -- Spring
Capital interest and probably going to be taking over the project and acquiring- - -. So they are, our
agreement with them is -- - little under seven million dollars - - -trying to get something we felt like
the community needed back in 2005, and we feel like it would be - - -. If you all want to make
different changes on plans that'll be more neighborhood-friendly as far as walking path - --where
the 40-foot channel is going-- -the shops, you could put in a walkway,ten-foot wide concrete
walkway - --the new developer can work with the County Planning Department and--- some of
these issues, but if they have to go back-- -new process, it's,I don't know, it's very difficult.
Anyway, I'd like to hand it over to Ken Van Bergen representing Spring Capital - - -
CARR SMITH: Thank you,Mr. Cook. Thank you.
VAN BERGEN: Aloha, Commissioners and Chair,nice to see you today. As was mentioned back
in February and earlier at this meeting, you know,the property is for sale. It, I view it as a strength,
although Brian is a very accomplished developer and has many successes through his own rights
CARR SMITH: Ken,Ken, could you be a little closer to your microphone,please? Your computer?
It's—thank you.
VAN BERGEN: You are not hearing me—
•
CARR SMITH: Thank you,that's better, thanks.
VAN BERGEN: All right, sure. So,you know,I view this sale as a positive for this development,
because as I was saying Brian is a very,you know, accomplished successful developer, but Spring
Capital is even more accomplished, and it is a bigger entity. I shared with you back in February
three pages, some of their developments over the,you know,past two decades,we had five states,
over 30 development projects,just showing Big Island alone,we've been on the Big Island for
25 years, over 100 million dollars in developments that were done. Someone maybe,you know,
someone at Planning maybe went out and looked at some of their projects, Maula Lani projects,
Kuki`o projects,they are currently developing a very large storage facility just above Costco here in
Kona. And so they've been invested in this community for, for a long time, and-- -to continue
that, you know, with this project. I think as far as what's actually been built,you know,they
inherited a lot of Brian's designs, which Brian put a lot of effort into and Brian did a good job with,
but they are not,you know, glued to that, if the Planning Commission or Council,you know, has
more requirements for affordable housing and walkways, and so forth. We've got a solid track
record in developing. They don't buy land to hold it; they buy land to build. And you are not going
to find another scenario where you have a more willing, able developer, with the kind of resources
into a project like this that will get done. So I, it's definitely a strength in the reality of situation, you
folks can see that. And I'm here to answer any questions you may have. My history with Spring
Capital goes back to 2006 and 7 when I worked for Maryl Group as development manager in South
Kohala on several projects, and so I can speak with experience that they are well qualified to fulfill
requirements and to build the project like this. Thanks. -
CARR SMITH: Okay,thank you. Commissioners, do you have questions? Max.
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NEWBERG: If I could, Ken,you had mentioned that I believe Spring Capital has had some projects
on Hawai`i Island.
VAN BERGEN: Yes.
NEWBERG: Could you, could you expound on that? What projects specifically?
VAN BERGEN: Did you get the history that I brought to the February meeting? The three pages
with so many developments that they've done in-five different states?
NEWBERG: I don't have it in front of me at this time. I could pull it up on email, but you'd
mentioned maybe the—
VAN BERGEN: Yeah,I'll be happy to, so back in 2000 they developed 130 single-family homes at
Maula Lani, Villages at Mauna Lani. So if- - -to the right- -- anything about,that was a very
successful project. They developed multiple houses at Kuki'o and Hualalai Resorts that I was
involved in personally back in 2006, 7 and 8. Currently, they have 100 acres that they own at
Kuki`o, the last 100 acres in Phase Three, and they're developing in this 20-acre, 20 parcels, 22 large
parcels. So most of their commitment on the Big Island so far has been in the resort areas. But if
you look at- - - later, the pages that I brought, there's, you know, 28 projects in mixed-use
commercial, industrial,resort,rentals; they have a plethora of experiences in different developments,
so—
NEWBERG: You had mentioned the storage facility near Costco—
VAN BERGEN: Yeah, so if you go up Hina Lani,you go to, at the corner of Hina Lani and
Kamanu, right on the corner there is a, that very large, it's under construction now and is getting
close to being done.
NEWBERG: I see.
VAN BERGEN: Yeah,that's,that's their latest project here in Kona.
NEWBERG: The reason I ask, was Spring Capital the original developer of the storage facility or
did they take that project over?
VAN BERGEN: You know, I personally haven't been involved with that, history of that project. I
know that they are, they are developing it now. My understanding is they were, but I could find out.
I don't know. I don't know that—
NEWBERG:
hatNEWBERG: The reason I, the reason I ask is the projects you're listing, one being the Villages at
Mauna Lani, is Spring Capital in conjunction on that project with Maryl?
VAN BERGEN: They were back in,when it was built. Actually, all those units have been sold off
many, you know, over a decade ago, and they are owned by private owners at this point- - -
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EXHIBIT D
NEWBERG: Okay—
VAN BERGEN: But Spring Capital, yes,they acquired it with Maryl, they had several LLCs, TDM
1, 2, 3, 4 and some other,which they participated,they participated in those developments.
NEWBERG: Sure,just--- dots to make that,bring that together in my mind,I know at the time as
an employee of Maryl Pacific Construction,that they did do the development of the Villages, as well
as purchasing the lots at Manini`owali, Kuki`o;I was just trying to see if there was a connection
between Spring Capital and the family there, Mark and Cheryl.
VAN BERGEN: Yes,Mark, TDM was just what the, TDM 1, 2, 3, 4 and 5 were all the LLCs that
we developed at Kuki`o, and they stand for Tom,Don and Maryl; that's what TDM stands for.
NEWBERG: Okay,I appreciate that—
VAN BERGEN: Tom Connor and Don Woolley are Spring Capital. So if you go to Spring
Capital's website, look at the partners, Tom Connor and Don Woolley are the main partners, and
Tom, Jr. and a couple of others, but Spring Capital is Tom and Don,that's Maryl's partners for those
projects—
NEWBERG: I do appreciate,I do appreciate you kind of connecting those dots for me. You also
bring up the storage facility at the corner of Hina Lani—is that Maiau, no,not, I'm sorry,not Maiau
but—
VAN BERGEN: Kamanu.
NEWBERG: —to my knowledge,that project was shut down because the developer, or the
contractor, didn't have a license at that time. Not sure if that's the best project to bring up.
VAN BERGEN: So,I know that there was a,you know, there was an issue with the contractor. I
know that,that they changed contractors at midstream. I don't know any of the details of that. The
only reason I know that is when Tom asked me to come on and help with this project because I know
Brian and it's kind of what I can do, I learned some things about the storage project,just working on
this project, you know, some discussions. So I know there were some issues. I know that it's
moving forward very nicely at this point. It's going to be done in the near future. But they did
change at least subs, if not general,I'm not sure.
NEWBERG: I appreciate the clarity. I don't have any more questions at this time. Thank you.
CARR SMITH: ---
NEWBERG: Nancy, you may be muted, if you are trying to speak.
CARR SMITH: Thank you. Yes, I was. Mark, go ahead. Rachell, can you unmute Noriko guys,
please? Thank you. Go ahead, Mark.
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EXHIBIT D
VAN PERNIS: Thank you. I have a question of Mr. Van Bergen. The applicants,the LLCs,they
are not going to do the development, Spring Capital is, right?
VAN BERGEN: Pualani Springs, I believe, is the name of the entity that's going to develop this
project, which is owned by Spring Capital. As you know, developers usually have, a lot of times
have different LLCs for different projects—
VAN PERNIS: What I'm trying to say - - -the applicants, the LLCs Mr. Cook is planning for, they
are not going to do the development; some entity of Spring Development is going to do the
development, right?
VAN BERGEN: Correct, if, if the planning, if the ordinances get extended—we've been in escrow
now for almost two years, and one of the conditions of escrow is to have the ordinances extended.
Once that happens, escrow can close, and then Brian and his partners are kind of out of the picture,
and Spring Capital moves forward as the new landowner, yes.
VAN PERNIS: And his partners include Mr. Schuler?
VAN BERGEN: Brian and his partners are selling interests in these parcels, and once the sale
happens—
VAN PERNIS: And when is the said,the referring development can actually start construction?
VAN BERGEN: Did you say when it is going to start construction?
VAN PERNIS: Right.
VAN BERGEN: We'll start construction as soon as the entitlement process,plan approval, and
design, working with the County, and we get a building -- -but as soon as possible—
VAN PERNIS: ---Do you anticipate it being a year, two years, ten years for it?
VAN BERGEN: For a project of this size, it's going to take some time, but I would envision, I
know in the five-year window, get at least phase one, the parcel project done, and within ten years,
have the full project done, if not sooner. A lot of it depends on the entitlement, planning—
VAN PERNIS: Wouldn't it be more proper for Spring Development to make the application when
they actually are going to start developing?
VAN BERGEN: No, because at the price it's purchasing the property for, they are buying the
property as entitled, not going to spend seven million dollars on Ag land,you know, spend seven
million dollars on entitled property they can move forward and develop.
VAN PERNIS: And all of the conditions, B, C, D, E,F, L,U, V, X, Z,these are all conditions of the
ordinances that you want, or Spring Capital or its entities, want waived as part of the purchase, right?
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EXHIBIT D
VAN BERGEN: Spring Capital supports the effort by Sidney and Brian to get the ordinances
extended so they can develop a project as proposed with amendments, whether be more residential—
VAN PERNIS: So all the, all the amendments, for instance, deletion of the five-acre school and the,
revision of the affordable housing,these are all requirements of your purchase—when I say "you,"
I'm referring to Spring Capital or its entities.
VAN BERGEN: I understand that. So, as the Planning Department and the Planning Commission
as a body, it's up for you to approve or not approve these amendments. Spring Capital is going to
inherit whatever you guys approve. But they support—
VAN PRENIS: Is Spring—
VAN BERGEN: —effort of what they are trying to do is ordinances that are in front of you today.
VAN PERNIS: Is Spring Capital going to purchase, if these conditions are not waived or lessened,
in other words, if all of the requests of the applicants are not granted?
VAN BERGEN: Spring Capital has every intention of purchasing these parcels with the zoning
that's in place extended. So if you are asking me specifically if one item or two items are changed,
are they still going to move forward, my answer is,yes, as far as I know, they have every intention
of closing on this sale. They've been in escrow for two years—
VAN PERNIS: I understand that, but there's numerous conditions that the applicant is asking for
waiver of or reduction of. My question is, is this Spring Capital's requirement?
VAN BERGEN: I would say it's not their requirements. They are supportive of these amendments.
And so I can't answer what you are asking because I don't know what you are talking; you've got to
tell me what you are going to change or you are going to accept—
VAN
cceptVAN PERNIS: All right, let me, let me ask—
VAN BERGEN: —more clarity.
VAN PERNIS: —if the amendments are not granted,the amendments that you support are not
granted, is Spring Capital still going to purchase?
VAN BERGEN: Are you saying if it's extended or if it's not extended?
VAN PERNIS: If all the conditions are not granted, the extension,the affordable housing change,
the five-acre school lot deletion, if all of these conditions, and there are many, that are referred to in
the application, not including the extension, are not granted, is Spring Capital going to purchase?
VEN BERGEN: I would say no,or they would have bought it two years ago. They wouldn't have
waited so-
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EXHIBIT D
VAN PERNIS: —okay,now—
CARR SMITH: We are kind of speculating here,I believe—
VAN PERNIS: - - -what we are asking, what,the Commission is being asked to help to sell
pending sale to Spring Capital, correct?
VAN BERGEN: I'll say one more time just so I'm clear that Spring Capital entered escrow two
years ago to buy these two parcels; one of the conditions at escrow is that the zoning extension,the
zoning ordinances are extended. I don't know what else, what else to clarify.
CARR SMITH: And, Mark,we are dealing with the applicants and the application, so—
VAN PERNIS: My understanding is that we are not, the Commission is not supposed to facilitate a
sale by the applicant.
CARR SMITH: The sale is not a part of the application. Does anybody else have questions—
VAN PERNIS: Well, I have several more questions—
CARR SMITH: Okay, let's, let's—
VAN PERNIS: —let me ask—
CARR SMITH: Mark,Mark, Mark,please,I want to move the questions around to different
Commissioners. It's Mike's turn right now. Go ahead, Mike.
VITOUSEK: Yeah,thank you. You know, I,I do want to kind of follow up on what Mark was
saying, Commissioner Van Perris was saying. I meati, to me, we would be much better served
having this negotiation on the outcome of the project with the actual developer than with the current
applicant who is proposing to sell the project to the developer who will then develop the property
that may or may not be equivalent to what we see on paper. I mean, it certainly would be a lot
simpler, if we were able to sit down with the people who were actually going to do development,
come up with the plan that works for the area, for the community, and all of that. And,to me,I
agree with Commissioner Van Perris that our role is not to facilitate the sale of a property but is to,
you know, figure out what's in the best interest of the community for the area. Again,that would be
best served by negotiating directly with the developer. I, you know, I'm also very interested to hear
if there is a path on that line where if Spring Capital were to purchase the property, and then we
could, you know, move forward with the meaningful discussion on what can and can't be done here.
CARR SMITH: My guess is the value in the purchase has to do with these guys teeing it up; if they
have to do that on their own, it's probably not as valuable, right?
VAN BERGEN: I would say that,you know, as you, as you know, land is valued based on location,
and another thing is that entitlement is, of course, a big issue. Big Island is land packed. And so
Spring Capital is interested in purchasing the property entitled with these zoning ordinances;
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EXHIBIT D
however, my, if there is some way to meet the Commission's or the Planning Department's
requirements or discussions, I'm sure Spring Capital will be willing to discuss some more details of
the project—
VITOUSEK:
rojectVITOUSEK: Right.
VAN BERGEN: But I view it as you guys - - -title in land,not up to the owner, and whatever the
land is entitled for,the Spring Capital,Puaa and Suffolk,whoever that is, has to follow the
guidelines of the whatever the entitlement says. But we are open. So---
VITOUSEK: And the bottom line with that is that because the entitlements are stale, we need to
recondition them in a way that makes sense for the property, or the community, and we think that
that discussion would be best served with the developer. And,you know, in this case where it's
•
complicated and, you know, you are buying it subject to the advancement of this ordinance, I don't
think at this point that we have enough information and enough collaboration where everybody
would be comfortable with that. I think that if we all, you know,take a step back, if you guys can
come up with a new plan that incorporates the requests for more walkable space, more connectivity
between that, as was discussed in the plan approval process, you know, and bring that back with the
plan on how we move forward in the way that's going to maintain the existing zoning, excuse me,
maintain the existing zoning move forward the fastest, then, you know,this kind of awkward
three-party discussion can actually become meaningful.
VAN BERGEN: Okay, is that- - -I'd have to ---Brian to- - - something like---. As far as
Spring Capital goes, I'm sure they'll participate and, a discussion - - - clarify these items. But again,
the property would have to be entitled before the acquisition, so it's still kind of-- -
VITOUSEK: So,I mean, and again, basically, the entitlement that exists in the zoning,the
Neighborhood Commercial zoning and then the Multi-Family Residential zoning, that wouldn't
change, right? It would just be the existing conditions that are now stale. So the zoning doesn't
change, even if the property sells; it's just the conditions that need to be met for that zoning.
VAN BERGEN: Okay. We are,we are open, so you tell, as the Commission or as the Planning
Department, you tell us what works for you—
VITOUSEK: Well, I say that my reluctance with issuing a favorable recommendation has more to.
do with the conditions and the alterations to these conditions than it has to do with the zoning in
Commercial versus Project District. So,to me, if we were to come up with conditions that are better
suited for the community, that maintain the affordable housing, that address this connectivity issue
between the community, that alleviate?you know, any kind of traffic improvements, and works that
into a plan approval, get the departments behind,then I would be in favor of it, maintaining its
existing zoning. But, in absence of that, if we are,you know, all of this or all of that,we are in a
tough place.
VAN BERGEN: Okay.
CARR SMITH: Perry, did you have anything to add?
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•
•
KEALOHA: I'm kind of soaking it all in right now. I'll holdoff on questions.
CARR SMITH: Okay,well, hopefully,we are getting near the end of that opportunity. I think we
are all fading. Mark.
VAN PERNIS: - - -we're all fading, then-- -there are several more matters that are—
CARR SMITH: Mark,you put your microphone closer,please.
VAN PERNIS: Can I ask Mr. Fuke some questions?
CARR SMITH: Yes, here he is.
VAN PERNIS: Back in 2005 in exchange for the very valuable zoning and promise the developer
received,put these projects to which became Pualani, generating huge profits, and after 15 years the
developer seeks to break all these promises,and cost for the- - - get back at all that the county - - -
several had a much higher price to developer. Is this fair to the people of Kona? Mr. Fuke?
FUKE: Well, equity is not a question for me to ask and answer. All, all I know is that the
entitlements were secured,the developer tried to,the landowner developer at that time tried to do as
much as they could, and it had to seek a time extension. And I'm sorry like I guess on behalf of
everyone that, you know,now we are like on 15-plus years and, you know, they are - - -here right
now. You know, it's a situation where,unfortunately, you have the commercial neighborhood and
the multiple-family zoning, but because the conditions have not been complied with, in a nutshell,
you have a zoning in limbo. I mean, you know, anybody who owns the property today and you go to
the Planning Department and you ask yourself, "Can I develop the property, you know,based on the
existing commercial neighborhood or RM zone?" and they are going to send you, tell you, "No,you
can't." The only way you can do it is that you need to have the conditions amended to provide you
with that opportunity to develop. You know,the reality of it,you know, like from the landowner
standpoint, all these years in spite of the inability to actually exercise the terms of the zoning
ordinance, you still have to pay commercial real estate taxes on it.
VAN PERNIS: The applications ask for the waiver or reduction of Ordinance Conditions B, C,D,
E, F, H, I,U, V,X and Z. That saves the developer millions of dollars, right? -- - developer- - -
FUKE: Yeah, I,I don't want to,you know, debate upon the cost issue, but that's something—
VAN PERNIS: Okay, let's not debate then. What about affordable housing? Are you going to
build it? Is the application going to comply with the ordinance or does the application seek to
change that requirement?
FUKE: I think Mr. Brian had, Mr. Brian Cook had indicated earlier that,you know, given his age
and, he still desires'to do something for the community, and knowing a project of this nature, it
would probably take you five, ten years to seeing it to its completion. He needs to have a viable
partner to develop it. Mr. Van Bergen has indicated that the group that he represents, whatever is the
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outcome of the conditions, as long as there is a time extension granted, then they are in the position
to examine all of those things and make a decision to pull the trigger or not.
Now, I understand that,like just hearing some of the discussions, that there's still a concern for the
proposed amendments to delete the affordable housing conditions. Then my recommendation to you
as a commissioner, is that to argue and hopefully convince the rest of the commissioners,I agree
with A, B and C proposed amendments, but I don't agree with this for the following reasons, and
then make the denial. I made the statement in the beginning that please do not look at the applicant's
requests as like an all-or-nothing. The critical one is, if anything as all-or-nothing, is a time
extension.
VAN PERNIS: You are not answering the question. Does the application seek it to abandon or
revise the affordable housing requirement in the ordinance? Does the application require that?
FUKE: One of the proposed amendments called for the deletion of the mandate to have 80 percent,
you know, 20 percent I think of the units for 80 percent or less and all that stuff,but that's the
existing language right now. So all I'm saying, you know, Mr. Van Pernis and Members of the
Commission, if that is foreign to you,then you should recommend its denial, but look at all of the
other conditions that we are recommending amendments. And at the end of the day,whatever
ultimately the Commission decides to recommend to the County Council, and whatever happens at
the County Council, if, if the extension is granted with,you know, a number of conditions modified
or non-modified,then it's going to be up to Mr. Van Bergen's group to decide,no,I can't live with
it, I'm walking away, or, look, it pencils out, so I'm going to do it.
VAN PERNIS: Let's move on to another subject. Isn't this area, Lako, Kuakini from Kam III,
Henry Street andHualalai Road,the location of the worst traffic jam in Kona during the mornings
and afternoons,with traffic of the standstill, lights going through several cycles without traffic
movement, merging vehicles and school buses, and Hualalai packed with vehicles as alternative
route trying to avoid the traffic jam? Isn't that already present?
FUKE: Isn't that,I'm sorry, what?
VAN PERNIS: The worst traffic jam in Kona is in this area.
FUKE: Well, you know,understandably, there,you know,there are definitely our like traffic issues.
The whole concept behind the General Plan and the CDP was to create compact type of
developments in this particular area, and you try to minimize sprawl. So if you encourage more
development on the south end of Kona, and you have a lot of the work activities on the north end,
invariably you are going to have a lot of this traffic moving to Kuakini and Queen Ka`ahumanu
Highway—
VAN PERNIS: Could you answer this with yes or no? Isn't this a site of the worst traffic jam in
Kona?
FUKE: I,I can speak to worse, yeah.
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EXHIBIT D
VAN PERNIS: And hasn't the situation- - - over the last 15 years?
CARR SMITH: Mark, Mark,I'moin to stopyou there for a minute,please. Director Yee, do
g g you
have something?
YEE: This format online is a bit difficult. I understand it doesn't, it's not conducive to kind of
efficient ponderings here,but I have to warn that I do have a union civil servants here, and per the
union contract, I do have to give them a break. And given that I'm not sure we are going to reach a
vote real soon,I'm suggesting, Nancy, maybe we have to take this, give them their break for lunch.
So,but I'll leave it to you whether or not you see the light here coming or not.
CARR SMITH: Okay. Max,what do you, what did you have?
NEWBERG: I just wanted to add, I don't want to speak for anymore anybody else on the
Commission or the Planning Department other than myself,but being someone who hopes springs
eternal, I think that, if I may,there was a suggestion to try and collaborate maybe a little closer in
February. Our world since has turned upside down, and maybe we didn't have that time to
collaborate. I would like to think that we are not as a commission, and again, -- - anyone other than
myself, trying to say no to housing here. But, is it possible that we revisit maybe a bit of
collaboration? There are a few sticking points I think at least for myself, getting rid of the affordable
component, not as much so getting rid of the park,but, seeing that they are across from a park,that
creating some traffic, and then again,third being the traffic itself. Would it maybe be more
conducive to have that time to collaborate? Or do we feel that time to collaborate between some of
these issues isn't what the applicant was looking for?
CARR SMITH: I guess I would ask the Planning Department if they are willing to collaborate over
the next month.
YEE: So, I know,Nancy, earlier you had said that you were a little disappointed in the, maybe the
lack of collaboration. I would feel as if we had been collaborating,we had been talking to the
applicant. So I don't think there is like we dug in our heels and it was, we were not changing at all.
But that said, I think you also know me very much as a planning director, I'm always willing to have
more conversations, if I feel as if it's productive. It's always, you know, again,you direct my
authority, if you really want us to go back and have more conversations to look at more alternatives,
I will certainly do that. If you want to choose to have a continuance, we will try to see if there is an
avenue. So I'm not closed off from that. Again, I think you have to ask the applicants, do they want
a firm decision or not,would be another way to kind of approach that question,too.
CARR SMITH: Sidney, what would be your response to that?
FUKE: Well, you know,we did have meetings, you know, to go over like whether we could reach
some sort of a compromise. At the end of the day,the Department's position was that I'm sorry,
like, you know,the CDP is really calling for a Project District, you've got to go, you have to take it
through that and Land Use Commission and the whole nine yards. And that was totally
unacceptable. So if the staff is going to go back and maintain the same position, then it wouldn't
make sense to kind of like go back and try to revisit that. If, on the other hand,the staff is willing to
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EXHIBIT D
kind of take that equation off the table and see like how we can kind of like,you know, make a good
thing, you know, like make a lemonade out of this, maybe these two lemon situation,then, you
know, like whether it's like, are you guys willing to delete the request for affordable housing rental,
are you in a position to maybe convey X number of acres for a community park, whatever have you,
now, those are like substantive discussions, which we think that we can go back and have a
discussion, you know, among all three of us, three being myself,the landowner and the developer,
potential developer,to see what can be worked out. Or,you know, alternatively, if you say, can you
come up with a plan that shows how you are going to have like this pedestrian integration between
Suffolk and Puaa, sure, we can come up with a master plan that shows something like that. And, as
a matter of fact, I was just kind of thinking that, you know, whether we come up with a master plan
now or a little bit later, you know, as part of the decision-making process as a recommendation, the
Commission on its own can recommend that these are certain design considerations that the Planning
Director has to take when it reviews the plans for plan approval. And one of the things, if you are
really interested about integration between properties,then have that become part of the plan
approval. So, it's a long way of saying that, again, if the Department fixes up the table that you've
got to go through Project District, State Land Use Commission Boundary Amendment,then, if that
gets off the table,then I think it would be worthwhile subject to Mr. Cook and Ken kind of like
saying up here.
YEE: I think, I'll chime in to say that good faith works both ways. The good faith works that I enter
in a conversation,not that, again,to let's say a Project District, but it also means Sid and your, and
the folks you work for,you know, are willing to come to the table also being openminded about
solutions, too. It's, it's always a two-way street. And I certainly would not be suggesting that we
can go to the table unless I felt I could enter the conversation with good faith.
CARR SMITH: Okay, good,thank you. Mike.
VITOUSEK: I was just curious if there are issues that have been discussed that would be specifics
that—Director Yee is talking about that the developer was dug in on on their end, that they were not
willing to compromise on.
FUKE: I'm sorry ---. Can you restate the question, Mike?
VITOUSEK: Sure, sorry about that. Yeah, so,you know, Director Yee is indicating that, you know,
he's looking for good faith from the developer as well to not be rigid and locked into any certain set
of issues. Are there any issues that are, you know,that we are talking about here specifically? Is
there anything that's a sticking point for the developer that they don't want to compromise on?
FUKE: I think like it's not so much substantive as much as it would be like processing. As I
indicated earlier, if the Department's position is not going to change relative to we need to go to
Project District and the State Land Use Commission process, then I think it would be worthwhile to
have this kind of conversation. Substantively, -- -the project so as we can kind of conceptually, you
know, achieve the notion of mixed uses, you know, in spite of the segregated zoning,you know,
Multiple-Family and Commercial area. How can we address like affordable housing, whether it's
coinciding the commercial activity with the construction of the housing, you know, or housing
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EXHIBIT D
comes first, commercial comes second, you know,those kinds of things,they would be all up for
discussion.
VITOUSEK: Okay, okay, so substantively, in terms of development issues, you guys are open to
taking the County's direction on how to take what we have and make it comply with the CDP the
best you can. Is that right?
FUKE: Well, like, as I mentioned, you know,there is a difference between compliance relative to
what is understood from the Planning Department to be the process, which is taking the plan through
the Kona Design Center, so on and so forth. But I think we all can read the plan and we know
generally what the overall objectives were; I think the staff kind of pointed out walkability and
mixed-use, all that stuff. So maybe we can't have the mixed-use in the RM zone, but we can have
the mixed-use within the Commercial Neighborhood zone because they allow both commercial and
residential activity. Talk about connectivity, we can do that.
VITOUSEK: Yeah, okay, so basically, you guys are willing to accept their recommendations on
how to make it fit, you know, substantively, not procedurally. We have a, you know, disagreement
on Project District versus zoning, and what I think a lot of us from the Commission are asking is, can
we make the existing zoning work to make the project in line with the guidelines provided in the
CDP, and it seems like we can do that.
FUKE: I believe we can. And, as a matter of fact, a lot of the earlier discussions I had with the
Planning Department included something along these lines.
VITOUSEK: Okay,I mean, I would personally be very supportive of Commissioner Newberg's
suggestion that we take a break in order to facilitate further discussion on this.
CARR SMITH: Do I hear a motion?
VAN PERNIS: -- -
VITOUSEK: Looks like Commissioner Van Pernis has a question.
CARR SMITH: Sorry, I was looking at something. Okay, Mr. Van Pernis, go ahead, but please
note, as you've been hearing this,that we are ready to wrap this up. Go ahead.
VAN PERNIS: I don't think it should be wrapped up before all issues are covered. There is also - -
- issue on the five-acre waiver of the school lot, and this is in regards to the State's intention to build
a new school in this area, and—
CARR SMITH: Mark,I think the school got moved somewhere else, so it's not applicable anymore.
That's my understanding.
VAN PERNIS: That's not the correct understanding. They are seeking to waive all contributions to
any school matters, and the State is acting in that. And also, there is the question of solar charging,
charging stations in the area, which they say is cheaper to do now than to retrofit, to waive the
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EXHIBIT D
future. Also,I think the affordable housing situation needs to be clarified. But most of all,I want to
say we are not here to ensure that a developer can make a profit or can develop; certainly, not in this
case when the real developer is not the applicant, so we don't know when the real developer is going
to develop. Our job is to represent the people of Kona, not to ensure some developer's ability to
make profit and to keep - - -project until the developer can succeed at the expense of the people of
Kona. The traffic is horrendous there. I wanted to get into that they are going to dump a thousand
cars into the mix without doing anything about the traffic problem. And the public testimony,which
I understand Christian has gotten in, all talks about the horrendous traffic, and I think we should pay
attention to that. This is not the time for this project. I'm not suggesting that it's been zoned so it
can't take place; they can have their zoning,they can keep their zoning, they can get their zoning.
But it's contributing to a very bad problem in Kona. I myself can't make the intersection of Henry
Street and Queen K. because of this backup—
CARR SMITH: All right—
VAN PERNIS: —propose a thousand more cars with no contribution.
CARR SMITH: Okay,thank you, Mark. Mike.
VITOUSEK: - - -
CARR SMITH: Unmute.
VITOUSEK: I would like to make a motion that we defer making a decision on Agenda Items 5 and
6 until the July Leeward Planning Commission in order to allow the applicant and the Department
the opportunity to work collaboratively for planning a solution that allows the existing zoning to be
continued subject to conditions.
KEALOHA: I'll second that motion.
CARR SMITH: Thank you. So we've got a motion on the table to defer to the July meeting, with
intentions outlined, made by Mr. Vitousek and seconded by Mr. Kealoha. J, I have a question for
you. If we, if we go ahead with this, do we need to speak of the public testimony that was on the
table, or can that automatically defer?
YOSHIMOTO: I would leave that up to you, Madam Chair,you can do it either way. If you are
asking my suggestion, I would suggest that you do have a motion to reopen public testimony and
make the record that testimony—I think Christian had mentioned it earlier—that testimony was
received since the testimony was closed. But you could do it the next time,too, but I just think
procedurally so we can keep track, if we do it right away.
CARR SMITH: That's what I thought, okay. I—
VITOUSEK: In which case, I'll put the previous motion on hold, and I'll make a motion to reopen
public testimony.
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EXHIBIT D
CARR SMITH: Okay. Is there a second?
NEWBERG: Second.
CARR SMITH: Max is second, okay. So we are reopening public testimony. All in favor?
COMMISSIONERS: Aye.
CARR SMITH: Anyone opposed? [None.] Okay, so we are just acknowledging that we have
written testimony from Joel Gimpel,Renee Inaba, Joel Cooperson, Edward Rapoza, Ryan Burns,
Peri and Bill Steffenhagen, and Marya and Elizabeth, since our last meeting. So those public
testimony items are entered into the record. And, can I have a motion to close public testimony,
please?
VITOUSEK: So moved.
CARR SMITH: Second?
NEWBERG: Second.
CARR SMITH: Okay,Mike and Max. So public testimony is closed. We can move back to the
other motion that was on the table. You want to reactivate that, Mike?
VITOUSEK: Sure, I will reactivate my previous motion.
CARR SMITH: To defer to July. Is there any discussion about this? Christian.
KAY: Thank you, Madam Chair. Just given the working situation and everything has kind of
slowed down a bit, I know we are in a situation where very soon we are going to have to set our July
agenda, and if we were unable to meet within the next month, it might be difficult to come back
empty-handed to see you. So I wonder if maybe we can do it until August or somewhat later time, if
the applicant is okay with that---
VITOUSEK: Sure,yeah, if it's possible for me to amend the motion, I would like to amend the
motion to say that we defer until as long as necessary for the owner, or the applicant, and the
Planning Department to work out this issue. I don't necessarily see the need to put a cap on it saying
you must come back by July. I want you guys to have a meaningful discussion and resolve this.
CARR SMITH: Perry, as the second, do you agree to that—
KEALOHA: Yeah, I would propose that we just defer to a future date.
VITOUSEK: Yeah,yeah,I like it.
CARR SMITH: Okay, all right, any discussion on that? Christian.
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EXHIBIT D
KAY: At the call of the Chair or when we are ready to come back? Is that—
CARR
hatCARR SMITH: Well,we hope that everybody is going to act in good faith and try to see if some
solutions can be had. So,yeah, hopefully sooner than later,but like you said, maybe July is too
soon. So I would hope that it would be by July,I mean by August,I'm sorry.
Sid, do you have any comment on that? I mean, it's not really a, well, we've got a motion on the
floor here, but.
FUKE: Well,I can understand the staff's constraint and perhaps might not be able to have
meaningful dialogue and, or at least conclusion, in July. My only apprehension is if you leave it
open-ended, it can be open-ended and, my friend once told me that the most insidious form of denial
is delay, so if there is a, if you are going to delay it for like one month, it's acceptable. I wouldn't
suggest kind of like putting it in infinity because, if you are putting the responsibility on both the
applicant and the Department, more so the applicant, if we have something that the Department can
accept, what if, at the end of like extensive discussion, there is like no resolution,we have to go back
to the Commission, we have to move it out, and we have to ultimately have the County Council
make a decision, which is a legislative decision. So, that's my only apprehension. I mean, like, I
can understand July might be a little bit too early,but, gee, August, September, October,you know?
So I, I would respectfully ask that no later than August, maybe, it be agendized.
CARR SMITH: Mike, it's your motion.
VITOUSEK: I'm fine with that, if that's what, what the applicant wants. You know,I don't, I think
that this seems like an issue that's going to take a little bit of time to work through and, you know,to
me, if you guys aren't getting where you want to go with the negotiations with the County,you're,
you're welcome to bring it back at any time that you want, and we can reject it or approve it,
whatever the case may be. All we are saying is we want to defer it until, until there is a resolution
one way or another.
CARR SMITH: Which needs to include or delete the Project District. Max.
NEWBERG: Just to add to that in respect to Mike making the motion,which I feel at this time is
correct, I think the motion is being made to defer to continue this discussion, because what we have
in front of us isn't something we are able to approve. And, speaking for myself, I don't think it's up
to us to make suggestions of what is approvable. I think that maybe is a better conversation between
the applicant and Planning, and then they bring it back in front of us to see if it's something that's
acceptable.
CARR SMITH: I think it's clear that we'd like to see something approvable come forward. Mark.
VAN PERNIS: I have two points. Fist point of order, I spoke to Mr. Rapoza, and by closing the
personal, or the testimony of the public, does that mean I can't comment on my conversation with
Mr. Rapoza? Basically that- - -
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EXHIBIT D
CARR SMITH: Yeah, I think under the circumstances, since we are deferring,we wanted to
acknowledge public testimony,but we are not having conversation about it right now,because we
have already closed that.
VAN PERNIS: And the second point is I want to remind everybody, including Mr. Yee,that we are
representing the people of Kona. We are not trying to find some way for this developer to profit.
And I think that the meeting that Mr. Vitousek is talking about should be between the actual
developer. It was confirmed to me through various sources, including Mr. Cook himself,that the
applicants are not the developers in any respect.
CARR SMITH: Okay,thank you. All right, if there is no further discussion, I'd like to—do I do a
roll call vote on this or just, Christian?
KAY: I'm sorry, Madam Chair, there was some discussion about kind of when the coming-back
date is. I didn't, I didn't think that was nailed down. Was it August, Mike?
VITOUSEK: We, as it exists now, it's to a later date.
KAY: Okay.
VITOUSEK: And then it's up to the applicant and the Planning Department to figure it out; each
one of them has power to bring it back.
CARR SMITH: Incentive, hopefully. So, is this a roll call vote? Staff, can you help me, or not?
KAY: I would say probably a good idea for a roll call vote, and then we have to do it twice for both
ordinances.
CARR SMITH: All right, very good. Then let's proceed with that,please.
KAY: Okay, right now I've got the voting sheet just for Puaa Development. Commissioner
Vitousek?
VITOUSEK: Aye.
KAY: Commissioner Kealoha?
KEALOHA: Aye.
KAY: Commissioner Newberg?
NEWBERG: Aye.
KAY: Commissioner Van Pernis?
VAN PERNIS: Abstain.
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EXHIBIT D
KAY: Commissioner Yates?
YATES: Aye.
KAY: And Chair Carr Smith?
CARR SMITH: Aye.
KAY: Motion carries - - - five ayes and one abstention - - -
CARR SMITH: Thank you.
KAY: Okay, and then for Suffolk Investments, I'm assuming it's the same,the same motion?
CARR SMITH: Same motion.
VITOUSEK: Yeah.
KAY: All right, same motioner and seconder?
CARR SMITH: Mr. Vitousek and Mr. Kealoha.
KAY: Okay. Commissioner Vitousek?
VITOUSEK: Aye.
KAY: Commissioner Kealoha?
KEALOHA: Aye.
KAY: Commissioner Newberg?
NEWBERG: Aye.
KAY: Commissioner Van Perris?
VAN PERNIS: - - -
CARR SMITH: Oh,Noriko guys are muted. Thank you. Mark, can you vote again,please?
VAN PERNIS: Abstain.
KAY: Thank you. Commissioner Yates?
YATES: Aye.
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EXHIBIT D
KAY: And Chair Can Smith?
CARR SMITH: Aye.
KAY: Thank you, Madam Chair. Motion carries, five ayes and one abstention.
CARR SMITH: Thank you all very much. Hopefully—I, I apologize, Mr. Okaneku,that you didn't
even get to speak, but thank you for being here with us. It looks like you have a lovely view to look
at while you are working.
OKANEKU: Okay,thank you, Chair. Aloha.
CARR SMITH: Thank you all.
The hearing was adjourned at 2:36 p.m.
Respectfully submitted,
Noriko Sauer, Secretary
Leeward Planning Commission
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EXHIBIT D
LEEWARD PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
AUGUST 20, 2020
A regularly advertised continued hearing on the applications of SUFFOLK INVESTMENT
LLC (AMEND REZ 2004-000024) and PUAA DEVELOPMENT LLC (AMEND
REZ 2004-000025)was called to order at 1:19 p.m. via livestream online meeting,with
Chairperson Nancy Carr Smith presiding.
COMMISSIONERS IN ATTENDANCE: Nancy Can Smith, Perry Kealoha,Max Newberg,
Mark Van Perris, Michael Vitousek and Faith "Faye"Yates
ALSO IN ATTENDANCE: J Yoshimoto,Esq. (Counsel for the Commission), Michael Yee
(Planning Director),John Mukai, Esq. (Counsel for the Planning Director), Christian Kay
(Planner),Maija Jackson (Planner), Jeff Darrow(Planning Program Manager), Alex Roy
(Planner), Tracie-Lee Camero (Planner), Rachelle Ley (Secretary to the Planning Director),
Kim Tanaka(Board and Commission Secretary) and Noriko Sauer(Leeward Planning
Commission Secretary)
APPLICANT: SUFFOLK INVESTMENT LLC (AMEND REZ 2004-000024)
Continued hearing on an application to amend Condition B (Time to Pay Water Deposit), Condition
C (Time to Complete Construction), Amend Condition D (Delete Rental Housing Restriction),
Amend Condition E(Delete Requirement for Supplemental TIAR), Amend Condition F (Roadway
Improvements),:Amend Condition H(Location of Spine Road within Project Site), Amend
Condition I(Kuakini Highway Improvements), Amend Condition U(Requirement of a 5-acre
School Site &Improvements),Amend Condition V(Fair Share), Amend Condition X(Affordable
Housing Requirement& Change Housing Program Approving Authority), and Amend Condition Z
(Administrative Time Extension) of Ordinance No. 05-113. Ordinance No. 05-113 reclassified the
14.872-acre property from Agricultural-5 acres (A-5a)to Multiple-Family Residential-2,500 square
foot(RM-2.5) in 2005. The subject 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 -Kuakini Highway intersection,Puapuaaiki 1st,
North Kona, Hawai`i, TMK: (3) 7-5-017:019.
APPLICANT: PUAA DEVELOPMENT LLC (AMEND REZ 2004-000025)
Continued hearing on an application to amend Condition B (Time to Pay Water Deposit), Condition
C (Time to Complete Construction), Condition E (Delete Requirement for Supplemental Traffic
Study), Condition F (Roadway Improvements), Condition H(Location of Spine Road), Condition I
(Kuakini Highway Improvements), Condition V(Requirement for a 5-Acre School Site and
Improvements), Condition W(Fair Share Contribution), Condition Y(Affordable Housing Timing),
Condition Z (Housing), and Condition BB (Administrative Time Extension) of Ordinance
No. 05-115. Ordinance No. 05-115 reclassified the 14.973-acre property from Agricultural-5 acres
(A-5a)to Neighborhood Commercial-20,000 square feet(CN-20) in 2005. The subject property is
located west(makai) of Queen Ka`ahumanu Highway and the Pualani Estates Subdivision, and
1
EXHIBIT C
about 1,400 feet north of the Queen Ka`ahumanu Highway -Kuakini Highway intersection,
Puapuaaiki 1st and Puapuaanui 1st, North Kona,Hawaii, TMK: (3) 7-5-017:001.
Secretary's Note: "- --" indicates that there were technical and/or internet difficulties, which made
the conversation inaudible.
CARR SMITH: We are moving on to Agenda Items 4 and 5 of which I will read into the record.
We know these are long:
Agenda Item No. 4,the applicant is Suffolk Investment LLC. It's AMEND REZ 2004-000024.
This is a continued hearing on the application to amend Condition B, Time to Pay Water Deposit;
Condition C, Time to Complete Construction; Amend Condition D,Delete Rental Housing
Restriction; Amend Condition E, Delete Requirement for Supplemental TIR, TIAR; Amend
Condition F,Roadway Improvements; Condition H, Location of Spine Road within the Project Site;
Condition I, Kuakini Highway Improvements; Condition U, Requirement of a 5-acre School Site and
Improvements; Condition V, Fair.Share; Condition X, Affordable Housing Requirement and Change
Housing Program Approving Authority; and, Condition Z, Administrative Time Extension. This is
all of Ordinance No. 05-113, which reclassified the 14.872-acre property from Agricultural-5 acres '
to Multi-Family Residential-2,500 square feet in 2005. Subject property is located west of Queen
Ka`ahumanu Highway and east of Kuakini Highway and the Kahakai Estates Subdivision,
approximately 2,200 feet north of the Queen Ka`ahumanu Highway-Kuakini Highway intersection,
Puapuaaiki 1st, North Kona,Hawai`i. TMK is (3) 7-5-017:019.
Agenda 5, the item agenda No. 5 is the applicant Puaa Development LLC. This is AMEND REZ,
Rezone, 2004-000025. This is a continued hearing on an application to amend Condition B, Time to
Pay Water Deposit; Condition C, Time to Complete Construction; Condition E,Delete Requirement
for Supplemental Traffic Study; Condition F, Roadway Improvements; Condition H, Location of
Spine Road; Condition I, Kuakini Highway Improvements; Condition V, Requirement for a 5-Acre
School Site and Improvements; Condition W,Fair Share Contribution; Condition Y, Affordable
Housing Timing; Condition Z, Housing; and, Condition BB, Administrative Time Extension, of r
Ordinance No. 05-115. This ordinance reclassified the 14.973-acre property from Ag-5 to
Neighborhood Commercial-2,000 [20,000] square feet in 2005. Subject property is located west of
Queen Ka`ahumanu Highway and the Pualani Estates Subdivision, and about 1,400 feet north of the
Queen Ka`ahumanu Highway-Kuakini Highway intersection, Puapuaaiki 1St,North Kona, Hawai`i.
TMK is (3) 7-5-017:001.
Okay. Before we get into the staff presentation, I want to take a moment to mention a concern that I
have;we received written testimony from Commissioner Van Pernis that caused me to think that the
Commissioner could have a conflict of interest in this case. Mr. Van Pernis, do you feel that you can
be fair and impartial in this case?
VAN PERNIS: I don't know what conflict of interest you are referring to. I'm sure I could be fair
and impartial. If you are referring to the deposition of Mr. Cook that I took,I took that on behalf of
[inaudible]Watson. I did not represent Mr. Cook,would not represent Mr. Cook. I saw first
Mr. Cook at that time. That was five or ten years ago. So,I, there's certainly no conflict of interest
here.
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EXHIBIT C
CARR SMITH: It seems - - -
VAN PERNIS: - -- can be fair and impartial.
CARR SMITH: It seemed like you had already made up your mind about the applicant—
VAN
pplicantVAN PERNIS: Well, maybe—
CARR SMITH: —prior.
VAN PERNIS: —other Commissioners have made up their minds,too. But I submitted what I
submitted at the direction of this Department;the Department got the opinion of legal counsel, and
then it went out. If—
CARR SMITH: —speaking of that, J Yoshimoto, our corp. counsel, could you weigh in on this,
please?
YOSHIMOTO: Okay,thank you, Madam Chair. Mr. Van Pernis is correct; he had asked to, for the
best method to distribute his thoughts regarding this particular matter. And so,you know, initially,
he had talked about, as I understand it,wanting to bring this with him and pass it out to the members,
but because we were having a virtual meeting, he suggested an email. And I said that was okay as
long as there is no back-and-forth of discussions regarding this matter in the email, I mean, excuse
me, yeah, in the email, so in other words just a one-way transmission. Mr. Van Pernis, is that your
understanding?
VAN PERNIS: That is my understanding. Thank you.
YOSHIMOTO: Okay, and then, so, I do have one concern, or a couple of concerns,to raise with the
Commission. With respect to the second point in Mr. Van Pernis's email, his written position, he
talks about following up with Mr. Rapoza after receiving testimony. And I want to raise this to the
Commissioners' attention because under the Administrative Procedures in Chapter 91 of the Hawai`i
Revised Statutes, this Commission, when it receives evidence, it receives evidence as a body, as a
whole; in other words,no particular commissioner should be going out and doing any kind of
independent following-up even with good intentions. And so, it sounds like—and, you know,
Mr. Van Pernis can speak to this issue—but it sounds like, you know,he did contact Mr. Rapoza
regarding something related to this matter, and that's not appropriate. And so if that is the case, you
know, my recommendation to the Commission would be either to have a motion to strike that
portion because really when you look at it, it's, it's a, again, it's going outside of the scope of what
the Commission acts as a body. Anyway,that's, that's pretty straightforward, but I'll be happy to
answer any questions regarding that point.
•
CARR SMITH: Commissioners, would you like to weigh in on this? Mr. Vitousek, go ahead.
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VITOUSEK: Sure. My question for corp. counsel is in regards to the first paragraph of
Commissioner Van Pernis's email to the Commission, indicating that a line of questioning for an
applicant related to a previous deposition in regards to a judgment against his client.
YOSHIMOTO: Okay, go ahead.
VITOUSEK: It seems to me as though that could create a conflict of interest, if you are using a seat
on the Commission in order to get information about previous ---
' VAN PERNIS: I do not represent Mr. Watson, deceased now, have not represented him for many
years, have retired. I've taken no further action against Mr. Cook who I knew before and after the
deposition. And I knew him because we both lived in Kona. And I have not used any information
inappropriately - -- intention. If you--- strike that portion, I have no objection. But I made
comment on it-- -
CARR SMITH: Mr. Vitousek, are you still on? Go ahead.
VITOUSEK: Yeah,I just wondered if that's something that corp. counsel could weigh in on.
YOSHIMOTO: Okay, so, Mr. Vitousek,you are asking a question as far as whether that
representation in the first paragraph in and of itself constitutes a conflict of interest?
VITOUSEK: Yes, that's my question.
YOSHIMOTO: Okay,you know, my reading of that is that,you know,we, in consideration of what
Mr. Van Pernis just represented,I believe that he would have initial burden to say whether he has a
conflict. Now,we've just heard him say that he doesn't have a conflict, but he is willing to have that
stricken as far as the record for this written portion. It doesn't change the fact that he can still state it
for the record as a commissioner, as all of you can in terms of your thoughts, so I mean that might be
a way to address it. But if the Commissioners believe that there is a conflict of interest, or if any
Commissioner has, is unable to be fair and impartial, then,you know, the Commission can make a
motion, you know, after doing its due diligence in terms of establishing a basis. So that's always an
option. But I do believe,you know, because Mr. Van Pernis offered to have that stricken, that's an
option, too, as well. The large issue of a conflict of interest, Mr. Van Pernis already represented that
he doesn't believe there is one, and he can be fair and impartial. But, you know,the Commissioners
can follow up with him since, you know,this is an issue that's before the Commission at this point.
KEALOHA: So,to be clear—
CARR SMITH: Perry.
KEALOHA: —to be clear, it's not corporation counsel's view that there is a conflict.
YOSHIMOTO: I don't have an opinion on that right now because I haven't had a chance to talk to
Mr. Van Pernis. So in all fairness, you know, we would have to,you know, basically go into the
issue—and I see Mr. Van Pernis is raising his hand—because really initially whether someone can
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be fair and impartial,the---process begins with the person themselves, right? You yourself would
be able to articulate they don't have a conflict of interest. And if people believe otherwise, like I
said,the Commission has the ability to address the issue, and if the Commission disagrees, and the
Commission could make a motion to have someone recuse because, you know,there is a conflict and
they can't be fair and impartial.
CARR SMITH: Thank you,J. Any other comments? Go ahead, Mark.
VAN PERNIS: First of all,this write-up was a result of the meeting.becoming virtual. You may
recall that at the prior meeting we were all told this meeting would be live. So I wasn't going to
present anything one way or the other at the live meeting other than my opinion stated at that time, at
this meeting. Then I was informed that this meeting was virtual, and I inquired how do I
communicate with these other Commissioners, will you give me their emails? And the answer was
no. So I said, well,then get corporation counsel tell me how to communicate with them. And I said
I did not want to have any response or exchange or conversation,just my information. And I
followed those directions. So if somebody feels I did it wrong,they could talk to corporation
counsel or Noriko, because I asked for their instructions.
Secondly, I don't think that the Planning Commission, or Commissioners, are to shut their eyes and
not be, and their memories as to anything that happens outside the meeting. For instance, it involves
traffic matters. Are we not to talk about our experiences or observations? Are we to act in isolation?
Thirdly, I don't think when and if a decision is made by a commissioner, an inquiry has to be made
when did you form this opinion, or when did you change your opinion, or that sort of thing.
So,I think I acted properly in these matters, and I regret the Chair[inaudible].
CARR SMITH: Okay,thank you. Mr. Newberg, go ahead.
NEWBERG: Hi,thank you, Chair. I would just like to state the obvious that beyond this
Commission,which.1 feel personally is honored to be a part of, one, I would hope that as we are a
body together that this doesn't happen again.. Its imperative that the community at large that we
hopefully serve the best of our capacity knows,without a boundary of doubt that we are on all the
same playing field here. And furthermore, I think it points to what we all do as a profession outside
of this voluntary position that,that I don't care to be part of anything that tarnish anyone's reputation
personally or endanger the trust of the community at large of what we are here to do. And I, my
hope is—I don't know what we can do to regain that—but my hope, and I think this goes without
saying, these communications don't have. Thank you.
CARR SMITH: Thank you,Max.
VAN PERNIS: - - -point out nobody saw this but the Commission.
CARR SMITH: I didn't understand what you said.
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VAN PERNIS: Nobody saw what you are talking about this email but the Commissioners and the
staff.
CARR SMITH: It became a part of the package, and then it becomes public record, so.
VAN PERNIS: That was the choice of the staff and the counsel.
CARR SMITH: Right,well,but it is a fact. So I have some comments. Having said that,the email
in my opinion shouldn't have been sent to us, but,but the decision was made to send it, and I respect
that. But I feel like this was testimony, and from a commissioner, I feel that this type of testimony
should be made at a meeting as opposed to outside of a meeting.
When Mr. Van Pernis decided to share why he sought the bankruptcy information in the February
meeting, I think it became clear that there was a personal issue here, and it seemed that that caused
you to continue,based on your behavior in that meeting and the subsequent June meeting,that your
mind was made up and you wanted us to understand where you were coming from. That raises a lot
of concerns ifor me about fairness and impartiality.
In your email,you are trying to convince us that we need to vote this down. You talked about the
application, the applicant not being the applicant, I think that's inappropriate. It's not your
responsibility to conduct your own investigations, and that talks to Mr. Rapoza's situation as well.
It's not up to you to conduct your own investigation. The Rules state—I'm not done, Mark, hold
on—the Rules state that if we are going to be investigating things,we decide as a board, as a group,
that, you know, you go out and do this,you go out and do that. And that wasn't the case; you took
that upon yourself.
The part about the traffic study, I don't think that you are an expert in traffic studies, so I don't think
it was appropriate for you to push that subject home hard like you did.
And I just,just the fact that you are trying to tell us how to vote on this makes me really
uncomfortable; it doesn't seem ethical to me. And all of that puts aside the fact that I don't like
applicants being treated poorly. That's not why we are here. And I, like Max said, I hope this
doesn't happen again. And I, so I continue to question whether you can be fair and impartial.
VAN PERNIS: Fair and impartial, and which I point out that I believe it was Mr. Vitousek who
raised the issue who the real applicant was and it was difficult to discuss the matter without knowing
who the true applicant was. And this matter was also raised by Mr. Fuke.
Secondly, you yourself in one of the proceedings here indicated how you were going to vote and
why, in one of the earlier proceedings today - --members, too, as well. I think our job is to tell
people what we think and try to convince them to go one way or other--- isolation - - - everybody
guess at the last minute—
CARR SMITH: I think our job is to—
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' VAN PERNIS: —I can be fair and impartial, and the information in this write-up was all contained,
all contained, all the facts were contained in the information submitted by the applicant- - -etcetera.
I don't think it's improper for me to say I drive these streets and this is what I observe. Other people
here have talked about what they have experienced in Waikoloa. I think that our job is to represent
the people of Kona, not the developer.
CARR SMITH: The developer is also a resident of Kona. I don't think that's the issue here. And
maybe it's not, even if it's not,property owners have rights. And so I think our job here is to listen
to the staff recommendation, listen to the applicant, listen to public testimony and make a decision
based on that, not, not based on an email from you outside of the meeting. Mike, go ahead.
VAN PERNIS: I am a commissioner,I think I'm entitled to my opinion—
CARR SMITH: You are, within the—
VAN PERNIS: —and express it. I sought expertise from the staff and counsel on how to
disseminate at virtual meetings ---
CARR SMITH: - - -
VAN PERNIS: ---virtual meeting. It wouldn't have happened, if this meeting was live---virtual
- - -this at a live meeting. I handed it out to save time at a real meeting.
VITOUSEK: This—
CARR SMITH: Go ahead, Mike.
VAN PERNIS: - - -
VITOUSEK: I just want to say that, Commissioner Van Pernis, I personally don't have an issue
with the method in which the information was distributed to us. I think,you know, getting it run by
corporation counsel and sending an email with your opinions in advance of the meeting, I don't, I
personally don't have a problem with that aspect of it. My concern is the content of the material.
And,you know,I would be comfortable moving forward, if that were stricken from the record, the
material relating to your private investigation call with Mr. Rapoza and, you know, the information
about the previous deposition on a previous judgment;I don't think that material is appropriate to
discuss with Commissioners. I don't mind you sharing your opinion via email. To me, it's about the
content, and I don't think that content is appropriate.
VAN PERNIS: I think I-- -to investigate, but I would agree to have stricken two,that those
portions be stricken. I- - - asked Mr. Rapoza whether he would be here so I could talk to him or
question personally; he said he was putting it on record, and he said he was not going to be here. So
how else was I to get it?
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VITOUSEK: Again, I think the attorney, our corporation counsel, has made it pretty clear that we
are to receive information as a whole, so we can't go out and seek information individually; we have
to be receiving it as a whole in compliance with Sunshine Law.
VAN PERNIS: I appreciate that, Mr. Vitousek, and I stand corrected. Nobody told me that before I
was a commissioner. But, again,Mr. Rapoza was not going to appear so all you folks could hear
what he had to say. So I've repeated what he said to me. But if you feel that's inappropriate, the
only way is get somebody in front of you guys. I'll agree with it being stricken.
CARR SMITH: I'm not an attorney, but I believe that become hearsay. I mean unless it's at our
meeting and presented to all of us, it's, it has no value in my opinion. Anybody else?
VAN PERNIS: It's your opinion. I think others -- - entitled to opinion.
CARR SMITH: Well, my opinion,Mr. Van Pernis, also is based on your February performance—
for some reason that's the word that comes to mind—I think you should have recused yourself then.
But you didn't, and that's neither here nor there at this point. But I don't think it was appropriate.
And so here we are. So what are we going to do about this, Commissioners?
YOSHIMOTO: Madam Chair?
CARR SMITH: [Responding to Mr. Fuke raising his hand to speak]Yeah, I'm not sure it's
appropriate yet, Sid, for us to hear from you, thank you.
YOSHIMOTO: Oh,no, this is J, Madam Chair.
CARR SMITH: Oh,well, Sid was waiving at me. I can't see you, you are too far away - --
YOSHIMOTO: Okay, I just want to take the matters one at a time. So my understanding is that- - -
I made a suggestion, and Mr. Van Pernis was agreeable to them[audio issue]—there you go. So if
we can have a, if the, if the Commission wants to make a motion to strike the portions of concern,
then we can get that out of the way. And then we can move on with whatever else the Commission
wants to proceed.
VITOUSEK: I would make the motion to strike those two items from the testimony:the first
regarding the previous deposition and the second regarding the discussions with Mr. Rapoza.
KEALOHA: I will second that.
CARR SMITH: All right. There is a motion to strike paragraph one and Item 2, is that correct, from
Mr. Van Pernis's email? Do I have that right?
VITOUSEK: Yes.
VAN PERNIS: - - -parentheses refers to the deposition. The reference to Mr. Rapoza is in No. 3 in
my memo.
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CARR SMITH: Number 2.
VAN PERNIS: And there is a number of things in that section, I think—no, it's not- --
CARR SMITH: I have the email in front of me, and it looks as though it's paragraph,the paragraph
that's numbered"2,"Mark.
VAN PERNIS: Number 2.
CARR SMITH: The one that says, "The applicants are not the real applicants,"then talks about
your conversation with Mr. Rapoza.
VAN PERNIS: Okay, so we are striking—I got it—we are striking the reference to Mr. Rapoza, my
conversation with him—
CARR SMITH: We are striking Item No. 2.
VAN PERNIS: —that would be the first sentence and the—
CARR SMITH: What is the motion—
VAN PERNIS: —last sentence.
CARR SMITH: Excuse me, Mark—
VAN PERNIS: First and last sentences of No. 2 and all of the unnumbered in parentheses section
beginning with the words, "Some Commissioners." - --by the way—
CARR SMITH: - - -that's your input, let's see—
VAN PERNIS: —one of the commissioners asked me that question.
CARR SMITH: Mr. Vitousek, what's your intention on the motion,please?
VITOUSEK: The intention of the motion is to strike any discussion on the previous deposition
between Commissioner Van Pernis and Mr. Cook, and also to strike any reference to discussions
and/or investigation outside of the scope of the Leeward Planning Commission, or reference to Mr.,
discussion with Mr. Rapoza.
CARR SMITH: All right, so that's all of the first paragraph on the email, and on Item No. 2—I
don't know where that ends, unless we just say Number 2 that we strike. You guys have the email in
front of you?
KEALOHA: I do, and my second was to the assumption that 1 and 2 be stricken.
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EXHIBIT C
CARR SMITH: Not 1 and 2 but the first paragraph and then the next item that's No. 2. Is that what
you mean?
KEALOHA: Correct.
CARR SMITH: Okay. Mike—
VAN PERNIS: - - - last sentence—
VITOUSEK: Yeah, I just called that up and that will work for me.
CARR SMITH: Okay. All right
VAN PERNIS: Am I correct, it's the first sentence and the last sentence—
CARR SMITH: No—
VAN PERNIS: —of Paragraph 2 is being stricken?
CARR SMITH: No,we are talking about striking the entire first paragraph of your email—
VAN PERNIS: Yes.
CARR SMITH: —and Item No. 2 in whole for ease.
VAN PERNIS: But Item No. 2, only two sentences refer to my conversation—
CARR SMITH: But it's too hard to tell where it ends.
VITOUSEK: That's,that's the motion. The motion is the first paragraph and No. 2.
CARR SMITH: Yeah, okay, that's, that's the motion—
, VAN PERNIS: —striking all of Paragraph 2?
CARR SMITH: Yes, we are, yes.
VAN PERNIS: That's not based on conversation with Mr. Rapoza.
VITOUSEK: I mean,that's the motion, I mean I feel like the information contained in there is
information gained from the conversation that I believe is outside of the scope of the Commission.
So that's the motion that I made, and I think that's what Commissioner Kealoha seconded.
CARR SMITH: Okay. Is this the all-in-favor kind of vote? Whoever is going to—
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EXHIBIT C
VAN PERNIS: Well,just,just let me say that Spring Development itself testified that it was going
to be the developer.
CARR SMITH: That's fine, because that's in our minutes. It's—
VAN PERNIS: And Mr. Vitousek brought up it was difficult to negotiate without knowing who the
real developer was.
CARR SMITH: All right, so we've got a motion on the table. Is this a roll call vote or—would staff
or somebody help me? Corp. counsel, what kind of vote am I taking?
YOSHIMOTO: Madam Chair, I would recommend a roll call vote.
KAY: I'm prepared to do that, Madam Chair.
CARR SMITH: Thank you, Christian. Go ahead.
KAY: All right. Commissioner Vitousek?
VITOUSEK: Aye.
KAY: Commissioner Kealoha?
KEALOHA: Aye.
KAY: Commissioner Newberg?
NEWBERG: Aye.
KAY: Commissioner Van Perris?
VAN PERNIS: No.
KAY: Commissioner Yates?
YATES: Aye.
KAY: And Chair Carr Smith?
CARR SMITH: Aye.
KAY: Thank you. Madam Chair,motion carries, five-one.
CARR SMITH: Thank you. So, with some of the testimony stricken, are the Commissioners
completely comfortable with Mr. Van Pernis being a part of this case going forward? Anybody have
any objections, I guess I should say?
11
EXHIBIT C
KEALOHA: I will say I was uncomfortable when I read it as well; however, in listening to corp.
counsel and the, Mr. Van Perris about having sought corp. counsel's advice, I'm comfortable once
the two items are stricken. The original email felt like testimony to me.
CARR SMITH: Thank you. Anybody else?
NEWBERG: Yeah, I would echo that as well. I trust corp. counsel in this regard, and, you know,
let's stay within Sunshine and observe all the regulations as a group.
CARR SMITH: Okay. I guess we will proceed then. Mr. Van Pernis, I would just like to let you
know that I'm not comfortable; I do think that you have a conflict,I think that you've got a personal •
issue here, and I don't really like the way it's come across so far. I'm just going to remind you that
the code of ethics requires fair treatment and then all people be treated in a courteous, fair and
impartial manner, and if I feel like that's not happening or that you go out that boundary,then we'll
deal with that, okay? Can you acknowledge—
VAN PERNIS: I believe I follow those instructions while we are representing the people of Kona.
CARR SMITH: I don't know what instructions you are talking about.
VAN PERNIS: The Board of Ethics rulings.
CARR SMITH: It says—never mind,that's,a whole other thing. Okay. Did you understand what I
just said,though?
VAN PERNIS: Well, if you would restate it, please?
CARR SMITH: I said that I personally feel like, still feel like you have a conflict,-and it's based on
the way you acted and spoken to the applicants in the previous hearings. So I just wanted to mention
that in the code of ethics it says that all people shall be treated in a courteous, fair and impartial
manner. And if I feel like you are not doing that, then I will take action at that point. Do you
understand that?
VAN PERNIS: I understand that, but—
CARR
utCARR SMITH: Okay.
VAN PERNIS: —I do not believe that applied to asking questions of the various witnesses.
CARR SMITH: Your line of questioning will be determined—we'll, you need to, you need to be
courteous. That's why we are all here; we are all here to help the community, okay? So we are not
here to help certain people. All right, enough of all that. Let's proceed.
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EXHIBIT C
All right, Christian and Maija are going to give us a presentation, and hopefully, it's,we've,we've
seen it a couple of times already, so if you can give us un update,please, and let us know about
anything new that has transpired.
KAY: Sure, so I'm going to share my screen. This is basically just a status update. Can everybody
see the screen and hear me? Okay, great.
Again, not going to go into the particulars of the application, again, since we've heard this a couple
of times, I just want to give you an update on what has taken place since we last met in June. We
scheduled a meeting with the applicants and Spring Capital on July 6th. That meeting was postponed
till July 16th at the request of the applicant due to scheduling conflicts. The reason I'm mentioning
this is I just wanted to let it be known that we were working on finding a good time for everybody to
be involved very quickly after the last meeting, so we weren't dragging our feet; so even though we
were about a month since the hearing that we were finally able to meet, it was all done'in good faith.
Prior to the meeting, Spring—pardon me—the applicant asked us to essentially provide a kind of
what it is that we would need to get to a favorable recommendation. And, basically,we provided a
couple of things. So the purpose of that in our mind was to develop the Kahului-Puapua'a
Neighborhood TOD to closely conform to the Goals, Policies, Actions and Guidelines of the Kona
CDP while not requiring Project District zoning,which in our unfavorable recommendation,we
offered as an alternative to the amendments to these two zoning designations.
In addition,we made a few requests. The first was to rezone the Suffolk property, and that's TMK
7-5-017:019, that's the one that's currently a Multiple-Family Residential, to Neighborhood
Commercial to match the Puaa project—pardon me—the Puaa property. The purpose for that was
to, in order to kind of develop this TOD as the CDP envisions, making the zoning the same would
allow for a greater density and expand the permitted uses, and that's going to help better facilitate
the development of that, again, mixed-use, walkable Neighborhood TOD, as we, as the CDP
envisions. The next was we requested that the applicant develop a master plan in close conformance
with the requirements outlined in the CDP to be the basis for new conditions of approval. Again,
this is a requirement of the CDP to have a TOD developed under a master plan, and because there
were still a lot of questions and a lot of requested amendments, we didn't really feel comfortable
moving forward without really kind of a well-thought-out comprehensive master plan upon which
conditions could be placed in order to move forward the development of a TOD. And then the third,
we requested that the draft master plan be developed prior to this body acting on the amendments
requests, or acting on whatever came out of that, in order to have it be vetted—oh, and also to have it
be vetted by the Kona CDP Design Center to ensure conformance with the intent of the Kona CDP
as is laid out by the CDP. Ultimately,this is again what we would feel comfortable with moving
forward to ensure that we could get to where we needed to be in developing this project as a whole;
we were not being very rigid and saying, okay, you've got to go Project District, which is 50 acres,
which would trigger a State Land Use Boundary Amendment, and things like that. Again, hearing
from the Commission saying take the time you need to try and get to a positive, or favorable,
recommendation, working with the applicants.
During that meeting the Department and the applicants were able to agree to some of the
requirements, for instance,the applicant agreed to rezoning the Suffolk property as long as it could
be done quickly, as just a letter to the Department requesting the change and not having to go
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through a full rezone process. The Director agreed to that. And also,they agreed to develop a
master plan, but something that would have to be done as a condition of these rezone amendment
requests and something that would ultimately be implemented through Plan Approval. And also,
throughout the meeting and even before the meeting, it was very clear that the driving force from the
applicants was getting to hearing at the PC in August or September and getting to the County
Council as quickly as possible. So ultimately, at the end of that meeting we were unable to come up
with an agreement based on what we needed to feel comfortable moving forward and the applicants'
desire to really move this forward very quickly.
After the meeting,the applicant sent an email with an updated site plan and a draft transect plan,
which was submitted to you in the applicant's August 3rd transmittal, and it's what they called a
master plan. They thought this would satisfy the requirement for a master plan. In our initial
request, we asked, we were very clear on what the components of a master plan, the minimum
requirements for the components of a master plan would entail; they thought that these two maps
essentially would constitute that. They also requested that that the Design Center complete and
expedite review by the end of July 2020. So they got this to us on the 16th; it would have given the
Design Center about two weeks to review the two documents they provided. On July 21St the
Director responded to the applicants' request, determining that the updated site plan and draft
transect map did not meet the minimum requirements that we laid out ahead of time to warrant
Design Center review, and asked them to submit a draft master plan more consistent with the CDP
requirements with the intent to reach a more mutually acceptable outcome as was requested by the
Commission at their June meeting. Instead, the applicant was very clear that anything that was
going to take more time was unacceptable and requested that we conduct today's meeting to have the
PC consider updated draft favorable recommendations and associated conditions for both rezone
amendments that were supplied to you in their August 3rd submittal.
So at this point I think we have,we are going to lay out some next steps. There are a couple of
options that the Commission has. As the parties were unable to come to an agreement on how to
move forward with a favorable recommendation that you requested,the Commission has the
following options to consider: The first is to forward an unfavorable recommendation to the County
Council either based on the Director's recommendation or for other reasons that the Commission
may articulate; or,the second is to forward a favorable recommendation to the County Council,
providing appropriate justification, as well as recommended conditions of approval,that can be a
favorable recommendation that's based on what the applicant has submitted or it can be,you know,
other reasons that the Commission may have to move this forward, and appropriate conditions. The
applicant has submitted those, the body of a favorable recommendation, as well as conditions,
proposed conditions of approval. Should the Commission desire to forward a favorable
recommendation to the County Council based on those, the Planning Department would like to
propose amendments to some of those conditions as proposed to ensure they are consistent with
agency recommendations that we received to this point, as well as to make sure they are consistent
with our standard condition language.
With all that, I want to say, so we had some discussion about Mr. Van Pernis's email, there were the
two transmittals, a letter from the Planning Department and a transmittal from the applicants, and the
finally, yesterday you should have received an email from the Pacific Resource Partnership
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testimony in opposition to the amendments that was sent out by email. So at this point that's the
entirety of the additional correspondences that we've received.
With that,I'm happy to answer any questions the Commission may have. One last thing,I also
have—pardon me—also added the updated site plan, as well as the transect map that the applicant
supplied, if we want to, you know,reference that in our, in our discussion. With that, I'm happy to
answer any questions the Commission may have.
CARR SMITH: Thank you, Christian. Could you perhaps hide your screen for the moment?
KAY: Sure.
CARR SMITH: Thank you. Great. Commissioners, do you have any questions for staff? Max, go
ahead.
NEWBERG: So, is the request in exemption for the affordable component still in place? They are
asking to not provide any affordable housing through the project?
KAY: I believe that their conditions that they were initially asking relief from,they've gone back
and put those conditions back in. So in terms of the Suffolk proposal,the requirement that the
housing, the rental housing for 20 years was put back in, as well as the representation that at least
20 percent would be, of the units would be at 80 percent AMI and then the remainder would be at
120 percent AMI. So those two initial requests to remove those conditions have been put back to the
way the conditions initially read.
NEWBERG: Thank you.
CARR SMITH: Thank you. Anyone else have questions? Mr. Van Pernis?
VAN PERNIS: Yes, Christian, does that affordable housing requirement require construction of
affordable housing, or does it provide the opportunity for some sort of substitution of land or credits
or whatever so that affordable housing is not integrated into the project?
KAY: I believe that the housing condition requires actual housing be built on site and does not
allow for the use of kind of affordable housing credits. So I do believe that their requirement to
build on site is,was part of the original condition, and as that is going to be retained,that, or now
proposed to be retained,that would be incorporated.
CARR SMITH: Anyone else? Mike.
VITOUSEK: - - - sorry, is the, so the application that the applicant is putting in the revised
recommendation is maintaining the existing RM zoning?
KAY: That's correct. Maija has got her hand raised, Madam Chair.
CARR SMITH: Hi Maija, go ahead.
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JACKSON: - - -
KAY: Maija,we can't hear you.
CARR SMITH: Unmute.
KAY: You are still muted.
JACKSON: Thank you. So I just want to offer one point of clarification. The current housing
conditions for Suffolk and Puaa are different. Only the Suffolk ordinance currently requires the
20 percent at 80 percent AMI. The Puaa condition currently does not have that requirement, so if
this condition would stay in place as it is, they would just have to comply with the housing code
requirements for the Puaa property, which is zoned CN, which they are proposing 100 housing units
on it at this time.
CARR,SMITH: Thank you,Maija. Commissioners? Mr. Van Pemis.
VAN PERNIS: Point of clarification—two points, actually. We are treating these two applications
as one, so, should the affordable housing apply to both? And secondly,when is this affordable
housing supposed to be done; in other words, how long of an extension do they want? Do they want
the 25 years, or what?
KAY: At this point, Commissioner Van Pemis,they have removed the request for the
administrative time extension, and they are asking for a, the timing of the completion of construction
is five years to begin construction and ten years to substantially complete construction. We don't
have an idea of the definition of substantial completeness, it's, so there could be some subjective
interpretations of what that might mean, so it would be good to'nail that down.
And secondly, there is a condition in the Puaa, the commercial zone property that ties the
requirement of the provision of housing, not necessarily affordable housing, outside of these housing
code requirement,prior to certificate of occupancy for any of the commercial; so I believe its
50 units need to be under construction and then need to be essentially bonded to complete
construction prior to CO for any portion of the commercial, and then if it goes beyond a certain
square footage of commercial,then another 50 units would need to meet that same requirement.
The timing requirement for Suffolk would be, you know, have to do with the five years to start,ten
years to complete, as substantially represented within that ten years. Anything beyond that would
then have to come back to the Planning Commission and County Council for additional time if
necessary, as is, as is proposed by the applicant.
To your question as to, or your thought about how this is being treated as one project,we kind of
have been doing that,but to be clear, these are two separate ordinances that have conditions, on each
of those ordinances that the applicant is asking you to consider proposed changes to. As
commissioners, if you feel like the conditions should apply to both ordinances, you have the
opportunity to propose that.
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VAN PERNIS: So in essence you are saying they are asking for up to 25 years from the original—
KAY: No, sir,what I'm saying—
VAN PERNIS: —original—
KAY: —yeah,I'm,I'm telling you what they are asking for right now moving forward. Where we
are at right now is we accepted the applications for time extension and we are where we are at. So
from 2004 to here, 2020, they are asking for an additional ten years to complete, for substantial
completion of construction.
VAN PERNIS: And what happens, if they don't meet their requirement?
KAY: Then they have an opportunity to come back and ask for additional time, or the Planning
Director has an opportunity to start proceedings for a reversion or change it to a more appropriate
zoning as the condition allows.
CARR SMITH: Thank you, Christian. Are there any more questions for staff? All right, very good,
thank you, Maija and Christian. Let's move on to the applicant's presentation. I'm trying to see
who we have on here. Sidney Fuke is here. Ken Van Bergen, are you on? Randall Okaneku, you
are here. Yes?
OKANEKU: Yes.
CARR SMITH: Thank you. Do you have anyone else, Sid,that's part of your group? I don't know
who this one phoned. Somebody is calling in that's from a 557 number. Is that part of your group?
FUKE: That's—can you hear me?
CARR SMITH: Yes.
FUKE: Yeah, that's probably Ken Van Bergen calling in,because he had to leave, and then so he
mentioned that if there is a need for his verbal testimony—
CARR SMITH: Okay.
FUKE: - - -
CARR SMITH: Okay, and is Brian Cook here today?
FUKE: Yeah, Brian is over here sitting in front of me, yes.
CARR SMITH: Oh, he's with you, okay, all right. All right, so all of you involved,I'd like to
swear you in all together,please. Anyone who is going, planning on speaking, raise your right hand.
Do you swear or affirm to tell the truth in this matter before the Leeward Planning Commission?
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REPRESENTATIVES: I do.
CARR SMITH: Thank you. All there,thank you. Okay, go ahead and begin your presentation,
your update,please. Mr. Fuke, I assume you are starting.
FUKE: Can you hear me?
CARR SMITH: Yes.
FUKE: Okay. Thank you very much,Madam Chair and Members of the Commission. I'd like to
go on record to note that- - -we heard the discussion regarding Commissioner Van Pernis. And
from the applicants' perspective,we cannot help but feel like this is like a personal bias against
Mr. Cook, and so that in and of itself should be justification for a recusal from this hearing of these
applications. In the alternative—and I know the decision had been made, and we accept his
participation—then we would respectfully request the Chair direct his questions or commentary to
on a one-person basis, and so that's what we are asking for—
CARR SMITH: Sony,what do you mean by the one-person basis?
FUKE: I'm sorry?
CARR SMITH: What do you mean by that? Just so - - -
FUKE: Yes, specifically, like if you,you know, look at his email and, you know,there are two
portions that the Commissioners had decided to - --. The first portion, if I were Mr. Cook, I'd feel
kind of like rather- - -was a personal thing saying that,you know, he was kind of---bankruptcy
and his only income was Social Security, so on and so forth, you know. I don't think they really
have much relevance to the nature of the applications. What you are considering right now is a land
use application; you are not screening on Mr. Cook being a member on the board---regulatory
agency. So I think those kind of- - -uncalled for. Comments relating to, you know,the traffic
impacts, so on and so forth, they are definitely germane, you know, to the application. And we
would ask that the Chair make sure that the comments are limited to the nature of the application and
not necessarily who the applicant was or is.
CARR SMITH: Understood and agreed. Thank you.
FUKE: So, inasmuch as like,you know, I had to-- - listening to Christian's presentation because I
got kind of like- --there is a lot of-- -information, and planners have been devoted to do this
application. And we are at the stage where kind of like making our final oral arguments to this
panel, this panel of judges,the Commission. Before I summarize, I,you know, I had—Ken was on
the phone, and I think he is going to be back on but basically, he was, you know, going to commit
that on behalf of his client, Spring Capital,that they stood ready,willing and able,you know,to do
the project, subject to the outcome of the pending request. We also have Mr. Cook and Randall
Okaneku standing by in the event that there are questions that are needed for him to, for them to
answer.
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And the August 3rd letter I submitted, I hand-delivered the applicants' position and proposed
recommendation and,with conditions, and that pretty much like summarize our position. And I'll
kind of like just highlight what I noted in that. And first of all was that the time extension is
consistent with the General Plan and the Community Development Plan. This is kind of like,you
know, beating a dead horse; we know that the, when the Council con,sidered the General Plan and
the Planning Director considered the CDP and the General Plan on extensions, everybody else
concluded it was consistent. The plans haven't changed. And yet today we have the current
planning director to say, hmm, stop, it's not consistent. So it kind of like boggles our mind in terms
of why now, and,where we have documents that have not changed, but now you can take a position
contrary. We've also,I also kind of pointed out in that brief letter that this project provides much
needed infrastructure in terms of having a new mauka-makai road, and also provides much needed
affordable housing- - -more detail, and not to say provides much needed construction, as well as
post-construction employment. And I think that we are at the stage, you know, when you deal with
the COVID pandemic,I kind of implore in the decision-making like this to kind of like look at the
consequences of your decision relative to the message, which you communicate to the broader
development community.
• We also heard at the last two Commission meetings, the Commissioners had expressed concern
about the need for affordable housing. As a result, in the August 3rd letter,what I kind of wanted to
point out- - - affordable housing. In the beginning what the developer wanted to do was to delete all
references to affordable housing obligation that, obligations that were committed to back in 2005.
And one of the reasons why was we were saying that just,you know, there is now an affordable
housing code which was not present back then. So why don't you have that code be the guiding
force? And that was, you know,predominant position on the part of the applicant. However,what
was represented then obviously is substantially more than what the code, if you, if the code were
strictly applied,what the code would require. The code currently, housing code currently requires
20 percent of the units to be,you know, you need to generate 20 percent affordable housing credit
for your total density. Now,that affordable housing credits can be generated in one of three ways:
One, it can be on site;two, it can be off site; and,three, if you have credits, you can purchase those
credits and use those credits. Now, on this particular property, Mr. Cook already has 40 affordable
housing credits that's - --for this property. He has chosen, and the conditions have also clearly
indicated that, number one,you cannot use those credits; number two, you cannot go off site;
number three,you are back to square one, you have to development all of your housing,you have to
satisfy all of your housing obligation on site. Now, relative to that, in the beginning on the Suffolk,
as I think,you know, the staff had mentioned,the existing conditions call for at least—the project is
going to be rental housing on Suffolk, it's clear, it's going to be rental housing you've got to rent it
for 20 years, and of these units at least 20 percent of those units would have to be targeted at
80 percent of AMI,the balance would be whatever the housing - - -. On the Puaa property,the
original request was to say, okay, let's not talk about any housing obligation over there,but the
existing condition already called for having a minimum of 50 housing units on the Puaa site, which
is a commercial site; we are saying, fine, restore that, you know. The Commissioners have raised
concern about the need for affordable housing in this particular area. They've responded, like
coming back and saying, look,we'll do it, we will not, we will not seek any relief from whatever
was represented---.
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Now,we've submitted and, for the Director's consideration, what we call the master plan. I think
Christian had shown what we have done, you know. We had Michael Riehm prepare what is called,
you know,this transect map and also this master plan, kind of revised master plan,basically
showing, you know,where your connectivity is, you know, connection orientations, so on and so
forth,they are there. The Director had summarily rejected that; he said like, no, you know, I'm
sorry, it doesn't pass the master, so you've got to go back to the drawing board. So, ultimately,what
happens is that the Director's position was that we plan to have like a master plan before we can
even come before this Planning Commission. Now, I ask yourself this, you know, like I think that's
- - - for the applicant is that it gives the Planning Director an enormous amount of discretionary -- -.
We can submit a new plan, and he can reject it. We can resubmit again, and they can reject it.
When will it end? That's the question, you know. When will it end? And how long is it going to
take? So, such that,you know,what we are fearful of is that it may come to a point where this
Commission may never see this application - --, if we had agreed to that condition,
Now,the developer, or the applicant, is concerned like, you know, we wanted to have it processed
and met two criteria: One was it's got to be transparent; and,two, it's got to be fair, it's got to be- -.
So we had thus proposed—and it's shown in Condition X in Suffolk's and Condition Z in Puaa, you
know, which was transmitted in my October [sic] 3rd letter—what we had proposed was that we are
not dismissing the idea for need for master plan. We recognize, we know what the Planning
Director's saying. We are not,we are not saying it's not important. We are saying it's important.
But consider this: We are saying that we are having a master plan prepared,this is going to include
both properties. Now, this condition, you know,two ordinances, okay,you have a master plan that
includes both properties and addresses all of the elements that you are calling for—mix-uses,
walkable community, housing, phasing,whatever have you. So we need to still develop the master
plan that incorporates both plats,then to also consider that this is a Neighborhood TOD, Transit
Oriented Development, that's the master plan. Now, we are also proposing as a condition that there
is a three-day review period by the Design Center, and not like an interminable period;you'll never
know once you submit,when you come out. You know, there's got to be that kind of- - - in terms
of decision-making. And then,thirdly, then once you have this master plan reviewed, vetted, and
that would serve as a basis for Plan Approval. And let me tell you why you want to have it tied into
Plan Approval. Plan Approval is a process that basically enables the Planning Director to look at the
plan and make sure that it conforms with the General Plan, Community Development Plan, make
sure it conforms with the Zoning Code in terms of the setback, the height, the parking, so on and so
forth. And if there are any - - - conditions of rezoning approval, then they all have to be addressed.
That's your Plan Approval. So the Planning Director has to review that and then make a decision.
You know the beauty behind that process? Two things: One is that it gives transparent and
equitable—first of all,there is a 45-day time limit from the time the application is filed and the
decision-making - - -; two is that if the decision is adverse to the applicant,you know what happens,
at least the applicant can appeal the Planning Director's decision to say like it's arbitrary, capricious,
it's an abuse of discretion, so on and so forth. If you were to assume the Director's original position
of saying we want to have an approved master plan before we can appear before you guys,where is
the equity? Where is the, where is the liberty to say, no, we want to come back and see - --with
you, Planning? But we don't have that opportunity. So what we are proposing here is a process that
address to see your master plan requirement,but at the same time,provides for transparency,
provides for minimal of abuse by the Planning Director. This is absolutely not at all to suggest that
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Planning staff or the Planning Director behave that. But, nevertheless,the applicant has, has
concerns, and they just want to make sure that the process is fair to all.
Finally, you know,we heard like,too,whether it's to this application or other applications,Planning
Commission,you know, like they don't necessarily want to have these administrative plans becuse,
you know, it can go on and on and on. And you want to be able to,you know,to look at the
situation, being that I was doing a time extension for Kona Country Club, the residential project by
the gold course, and I think Commissioner Vitousek raised an issue, what about the SMA because
they want to see the project and not just kind of like let it go—very reasonable. So we are proposing
to say like,no, it's not going to be any administrative extensions such that if it cannot comply with
the conditions, then it's got to come back to public review through the Planning Commission and the
County Council. Who makes a decision in determining substantial plan compliance? The Planning
Director has the authority. He can review it until—I know,I just view that, you know,you're having
only like there is some kind of nails in the project,that's not substantial they can make that, and we
are going to have to make our case before this body to say, yes, it is substantial, no, it's not
substantial enough.
So, I guess like the bottom line is saying that knowing that,you know, like the what we are doing,
we've kind of like restored back the affordable housing condition, all of the phase,'and we are saying
that we are going to do a master plan, and we've eliminated administrative decision[sic]. From our
standpoint, the applicants' standpoint, I think that we've addressed as much as we can, reasonably
can, you know, all of the concerns raised by the Department, as well as the Commission throughout
the hearings. We are kind of hoping that the Planning Commission would look at the proposed
recommendations and conditions that we prepared, the favorable one, and, you know, - -- at the end
of the day vote to recommend its approval. I realize that if you take the position and accept the
Director's, accept the applicants' position on the conditions, as well as some of Planning's, that there
may be a need to make some editorial things, and if it comes to that,we would have no objection to
having- - -the stuff,just to make sure that these editorial kind of comments on both the conditions
and the Planning's - - - are kind of like consistent with the final action of the Commission. Thank
you very much.
CARR SMITH: Thank you, sir. Question? Mr. Vitousek.
VITOUSEK: Yes, for Sid,my question is if the applicant would be willing to consider the rezoning
as proposed by the County,the Neighborhood Commercial.
FUKE: - - - one property is proposed like, the existing,the Puaa property is currently zoned CN, and
the Suffolk property is currently zoned RM. So, are you suggesting if the applicant would have any
objection to having the designation on the Suffolk property changed from RM to CN? And if that's
the question, the answer is no. We-- -not having to go back to square one.
VITOUSEK: It seems—
FUKE: If it could be done,you know, like right now, then that would be, you know,we would have
no objection, and all of the conditions can still be the same.
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VITOUSEK: And, is that something that can be done at the Commission --- approval? Is that a
question for our Planning staff?
FUKE: I have an opinion, but I think I would defer to the staff- - -
CARR SMITH: Can you repeat that, Mike?
VITOUSEK: Yeah, so my question—because I tend to agree with Christian that the zoning would
be appropriate to- - - development in a Neighborhood Commercial for both properties, and just
trying to figure out if there is a way that that can be accomplished here. It seems like the County is
willing to do an administrative approval to allow it to be a more simple process.
CARR SMITH: Jeff, go ahead.
DARROW: Thank you. It's a tough question. There is a process as you go through a Change of
Zone application, including the submittal of metes and bounds, creating an ordinance, creating a map
that changes the zoning. So it's not something that can be done just by a letter or something; there is
a process that has to happen. It, it can happen fast; we can get the ordinance prepared fast,we can
get the metes and bounds—we already have them for the RM but there still needs to be that
process done prior to us being able to go forward in approving it. I've never seen it done outside of
that in its manner. I don't know if Sid has, but I've never seen it before. I know that we,you are
creating an ordinance to be able to change that property to a particular zoning,which, it had been
done just by a letter.
VITOUSEK: But would it be possible for us to add that as a condition here? If, let's say, if we were
going to approve the application that the applicant has submitted, can we say that we are approving
this with a condition that a Neighborhood Commercial zoning be sought for the currently RM
property?
DARROW: I—sorry, Sid,real quick—I have seen something like that, and that actually occurred in
the Waikoloa, Waikoloa Mauka project where they made it a condition to have the applicant go back
to the Land Use Commission. With the understanding in this case that the applicant would have to
go—you've got to make it clear, do you want that CN zoning done before they go to Council at this
point or do you want them to go to Council, get approval, and come back and go through the whole
process again? So there's,there's some questions that would be to be addressed.
CARR SMITH: Go ahead, Sid. Thanks, Jeff.
FUKE: ---
CARR SMITH: Sid, unmute,please. There you go. Go ahead.
FUKE: Jeff had indicated, I'm familiar with the Waikoloa Highlands project when,you know,when
that—I was listening in to earlier discussion on - - - item—yes,you know,that property was
originally zoned Ag-1 by the County, and subsequently, when they went in for a time extension,
there was a requirement that the applicant subsequently change, you know, submit separate zone for
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•
- - - one zoning. So there is precedent to that. So the way I would look at it is that if there is a
condition, for example, an added condition to require the applicant to submit a rezoning application
maybe within 60 days after Plan Approval of the,you know, like the standing application, that can
be done. And I would think it can be done. And such-that, if the CN zoning ends up like in this
quagmire that we have right now,then,you know, like, it can be denied. But nevertheless, the
applicant has the basic right to proceed based on the current RM zoning.
CARR SMITH: Thank you, Sid. Anybody else? Hi Faye, go ahead.
YATES: - - -meetings, etcetera,that they went through, and there were some revisions or some
changes that they wanted to have made that they said,no, they weren't willing to do it. Does that
matter? Or was that, or did I misunderstand that? Based on what Christian had said about making
some changes, but, what you call,they said that they could not or would not or. I'm a little confused
about that.
KAY: I'm sorry, Commissioner Yates, can you repeat the question? I didn't quite catch the first
part.
YATES: Yeah,well, you said that there were some changes or some suggestions on the, you know,
on the Commissioners' part to, they are making some changes or revising some changes, and they
said they could not or would not. Or did I misunderstand that?
CARR SMITH: - - -, yeah.
KAY: Yeah, if I understand your question, at the June meeting there was a motion to move forward
with, to try and have the County and the applicants, as well as the prospective buyer,try to come to a
mutual agreement to move forward with a favorable recommendation. As part of that process, the
applicant asked us to kind of lay out what we would need as the County to move forward with a
favorable recommendation,to move from our unfavorable, which was based on our analysis of the
General Plan,the CDP, and all the other reasons, we went unfavorable,to try and get to a favorable.
During that time we did lay out those three steps, one of which was to rezone the Suffolk property to
CN, to develop the master plan and the conditions based on that master plan,the master plan being
consistent with what the CDP asked for in a master plan, and third being that the master plan be
vetted by the Design Center prior to coming back to the Planning Commission. It was on that point,
or the, essentially, the points that would take more time beyond August or September of this year,
the applicants seemed very uncomfortable, or did not want to move forward with those suggestions.
Based on that, we were headed impasse, and those were the things that I was saying the applicant
wasn't willing to do. And I think Sid just kind of confirmed that in his testimony before based on
his reasoning.
YATES: Okay—excuse me—but the other previous conditions that, or concerns that we had as a
Commission, all those have been addressed—
KAY: Um,the-
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YATES: —you know, something about, something about schools, something about the roads,you
know, those kinds of things. Those all are to be addressed or have been addressed?
KAY: So the applicant in their most recent proposed favorable recommendations have asked, have
gone back from asking for relief from a lot of those—affordable housing questions and issues like
that. So, I think with the school,the condition there is, their request there is to still delete the
school-related condition, and no,nothing else beyond that,just a deletion of that. And the
justification was in I believe the applicants' previous, or the original application, or their previous
favorable recommendation,probably the original application. But you want to have, Sid might be
able to reiterate the reason behind that. At any rate, several of the conditions they were asking relief
from,they've gone and put those back in in their latest favorable recommendation. If that answers
the question I think you are asking.
YATES: Okay,thank you.
CARR SMITH: Did you want to respond to that?
YATES: Yeah,my concern is still regarding traffic because, you know,that area is so terrible and,
you know,that's where I'm concerned, you know,how are they going to address that?
CARR SMITH: Well, maybe that's an appropriate time to finally let Randall speak. He's the traffic
expert on this. And you were with us all last two meetings and didn't get to say words. Do you
want to address what your findings were?
OKANEKU: Thank you, Madam Chair. My name is Randall Okaneku. I'm with the Traffic
Management Consultant, and I prepared the traffic impact analysis report for the Pualani Makai.
And the traffic impact analysis report was prepared in accordance with the Hawai`i County Code
concurrency requirements. And the concurrency requirements say specific guidelines for
preparation of the report. Among those are traffic mitigation for any onset unacceptable level of
service, you know,within a five-year period. The traffic study has recommended mitigation
measures that would improve the level of service to acceptable levels within a five-year period, and
we estimate those mitigation measures to maintain those acceptable levels through a ten-year period.
Beyond that, the 20-year forecast would require a major rezone type of improvements to bring back
the level of service to acceptable level. And there's, there's several projects that the traffic impact
analysis report points to,none of which are within a five-year period, maybe not even a ten-year
period, but they are on the books, one by the County and one by the State. But in any case, we've
attempted to meet the County Code's concurrency requirements as far as mitigation at the
intersection of Queen Ka`ahumanu Highway and Puapua'anui Street.
There were comments about traffic congestions along the Queen Ka`ahumanu corridor. I went back
to take a look at my traffic video, and I did identify, you know, queuing, which are basically outside
of the study area; in the morning there was queuing north of Hualalai Road, which I could see on the
video backing up,but it never reached Puapua'anui Street; similarly, in the afternoon,there was
some backed queuing that appeared to start at Lako Street and kind of backed up to Kuakini, Kuakini
Highway intersection, but again, never reached Puapua'anui Street, as far as queuing is concerned.
So a lot of these concerns are in my opinion all outside our study area. And, so I didn't restudy
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those intersections, so I can't tell you what—not recently anyway—I can't tell you what causes
were; it could have been an accident, it could have been, you know, some malfunction of the traffic
signals, it could be mistiming of the traffic signals. But in any case, like I said, at least within our
study area, we had attempted to mitigate the primary access both Queen Ka`ahumanu Highway and
Kuakini Highway.
Now, if you have any specific questions on the traffic study, I can,you know, go directly to them.
CARR SMITH: Okay,thank you. Mr. Van Perris.
VAN PERNIS: I have serious questions for Mr. Okaneku regarding his traffic study submitted by
the applicant. If any of these questions are offensive, please let me know, I'll restate it.
Mr. Okaneku,what was your assignment?
OKANEKU: My assignment was to prepare a traffic impact analysis report for the Pualani Makai.
VAN PERNIS: And were you instructed to study any particular intersections?
OKANEKU: No.
VAN PERNIS: How did you select the three intersections you did study?
OKANEKU: Well,the study area is based upon the size of the development. Typically, for a
smaller project,we would just analyze the access intersection that I've done, and for a larger project,
we'll take one intersection north and then one intersection south of the project site.
VAN PERNIS: Just one intersection each way.
OKANEKU: Yes. It could go larger, you know, if we were talking about something like a major
resort, you know,we'll go further out. But again, this is just a neighborhood commercial center,
with an occupying residential, so I guess in my opinion the study area was sufficient.
VAN PERNIS: Okay,your opinion, even though this project would have more people driving in
and out than a resort.
OKANEKU: Which resort?
VAN PERNIS: Any resort that you based your decision on.
OKANEKU: Well, I don't know what, how you compare this with another resort. What resort are
we talking about?
VAN PERNIS: Okay, forget it. Why was Henry Street intersection not studied?
OKANEKU: Can you repeat that? Which intersection?
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EXHIBIT C
VAN PERNIS: Henry Street and—
OKANEKU: Henry Street.
VAN PERNIS: —Queen Ka`ahumanu.
' OKANEKU: Well, generally, in traffic, as you get further from the site,traffic tends to dissipate, so
when it reaches a level where the percentage drops down to insignificance, you know,we don't,
we're not studying the whole island because one car is going to go to Hilo, you know what I'm
saying? So that's basically—
VAN PERNIS: - --
OKANEKU: -- - and cost, of course,you know,we can't be studying the whole west side of
Hawai`i,the Big Island, for, you know, every project So—
VAN PERNIS:
o—VANPERNIS: - - -
OKANEKU: —I did not go to Henry Street because it's located quite a distance from this particular
intersection, site.
VAN PERNIS: You selected the intersection of Queen K and Kuakini, correct?
OKANEKU: Yes.
VAN PERNIS: Isn't that further away from the proposed site than Henry Street intersection with
Queen K?
OKANEKU: Oh,no, I don't think so. The first intersection south is, gee,within a mile. The first
major intersection I think north of our study area would be Nani.Kailua. That, I think, is the
bottleneck that resulted in the queue that I saw in the morning.
VAN PERNIS: Isn't Henry Street-Queen K intersection close to the project than the intersection of
Kuakini-Queen K? -
OKANEKU: Oh,no,I thought,that's quite ways away.
VAN PERNIS: How far away is Henry Street?
OKANEKU: Hang on, I'll, I'll go over that for you.
CARR SMITH: Henry Street is pretty far away.
VAN PERNIS: The Henry Street-Queen K intersection. ,
CARR SMITH: There are other intersections between there and the project.
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EXHIBIT C
VAN PERNIS: Is the Queen K-Kuakini intersection source of traffic onto Queen K to the project
site?
OKANEKU: Okay, going back to your earlier question, Henry Street is about two miles away from
Puapua`anui Street.
VAN PERNIS: And what's the street at the Queen K intersection?
OKANEKU: And if you want to look at—
VAN
tVAN PERNIS: Please tell me.
OKANEKU: Kuakini Highway intersection is about 0.6 mile south of Puapua'anui Street, so it's
quite- --
VAN PERNIS: When traffic comes down Palani Road and reaches the intersection with Henry
Street and Ane Keohokalole Highway, doesn't all the traffic turn left onto Henry Street?
OKANEKU: From Palani? Palani Road?
VAN PERNIS: Palani Road, yes, sorry. I should revise my prior questions. Isn't Palani Road-
Queen K intersection further away from the subject property than the Henry Street-Queen K
intersection?
OKANEKU: Yes, itis. Yes, itis.
VAN PERNIS: Why was the Henry Street intersection not studied?
OKANEKU: Again, it's located two miles away from the site.
CARR SMITH: What's the relevance here,Mark?
•
VAN PERNIS: The relevance is they selected the road that does not have left-turn traffic at the
intersection. Palani Road-Queen K intersection does not significantly contribute traffic to Queen K
going south. Isn't that true, sir?
OKANEKU: I haven't studied that intersection recently, so I can't say definitively.
VAN PERNIS: How about at the time of the traffic study?
OKANEKU: The traffic study did not include that intersection in the study area.
VAN PERNIS: Traffic study did not include Palani and Queen K?
OKANEKU: No.
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EXHIBIT C
VAN PERNIS: All the traffic from North Kona coming down Palani Road that goes south on Queen
K turns onto Henry Street, correct?
OKANEKU: I believe some of them goes into Kailua town. Some of them hit toward back for the
airport.
CARR SMITH: Mark,I'm not sure what this line of questioning is accomplishing. People, traffic
comes from all directions, all kinds of streets, lefts,rights. I don't understand why we are---
VAN PERNIS: -- -you may not understand but I drive those roads every day.
CARR SMITH: I drive in a lot,too. It doesn't- - -
VAN PERNIS: There's two left-turn lanes on Palani Road and Henry Street, correct?
OKANEKU: I think there's a single, single left-turn lane from Palani onto Henry Street.
VAN PERNIS: You don't believe there's two left-turn lanes from Palani going,turning left onto
Henry Street?
CARR SMITH: There is one.
OKANEKU: Yeah, I think there's a single left-turn lane here.
CARR SMITH: And then there's two from Henry onto Queen Ka`ahumanu. What is this—
VAN PERNIS: There's one turning lane on Palani at Queen K. There's two at Palani at—
CARR
tCARR SMITH: Okay—
VAN PERNIS: —Henry Street—
CARR SMITH: - - -with that, so—
VAN PERNIS: All right, let me ask this question:Do you know where the Walmart is located?
OKANEKU: Sure.
VAN PERNIS: What street?
OKANEKU: Off of Henry Street- - - Safeway. Hang on—
VAN PERNIS: Do you know where the latest shopping center in Kona is located? - - -
CARR SMITH: Mark- - -
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EXHIBIT C
VAN PERNIS: - - -Niumalu?
CARR SMITH: Sony ---
OKANEKU: -- - store?
CARR SMITH: Sony,I'm ---
OKANEKU: I don't know the name-- -
CARR SMITH: It doesn't matter.
VAN PERNIS: It does—
CARR SMITH: No, it doesn't—
VAN PERNIS: proposing, they are proposing—
CARR SMITH: Move on to your next question,please.
VAN PERNIS: I think it's important to know where the—
CARR SMITH: At the point we are at right this minute, it doesn't matter what street Walmart is on.
VAN PERNIS: - - -next to the first one they propose development.
CARR SMITH: Okay,what's your next question,Mark?
VAN PERNIS: How many streetlights are presently on Henry Street from Queen K to Palani?
OKANEKU: From Queen K to Palani? One intersection there—
VAN PERNIS: From Queen K—
OKANEKU: —one signal.
VAN PERNIS: —to Palani and Henry Street, how many lighted intersections are there?
OKANEKU: One at Palani, one at Henry Street.
VAN PERNIS: There's one at Malulani Drive.
OKANEKU: Is that the Home Depot—
CARR SMITH: That's on Queen K.
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EXHIBIT C
OKANEKU: —or Lowe's.
CARR SMITH: Mark,move forward,please.
VAN PERNIS: I think I'm entitled to elicit information from this witness --- interrupted.
CARR SMITH: Not- --
VAN PERNIS: - - -
CARR SMITH: -- -we are wasting time on senseless things.
VAN PERNIS: It may be senseless to you but not senseless to people of Kona.
CARR SMITH: Well, I'm running this meeting, and I feel like we are wasting time. I would like
you to move forward—
VAN PERNIS: What is the condition—
CARR'SMITH: —this line of questioning.
VAN PERNIS: What is the condition of Henry Street, Palani Road, Queen K? Is this a LOS "D" or
a LOS "E" or something else?
OKANEKU: I don't have the information.
VAN PERNIS: You didn't study Henry Street.
OKANEKU: No, I did not.
CARR SMITH: Okay,we are going to move—
VAN PERNIS: Why not?
CARR SMITH: —another, we are going to stop right here and move on to another commissioner.
Max.
NEWBERG: I don't really have any further questions. I just wanted to add, although I'm a bit
surprised maybe with the traffic report,I do trust the expert and his opinion, his traffic study. Thank
you.
CARR SMITH: Thank you. Anybody else? Sid.
FUKE: -- -
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EXHIBIT C
CARR SMITH: Unmute, Sid.
FUKE: Am I unmuted?
CARR SMITH: Go ahead. Oh, yes,you are.
FUKE: -- -
CARR SMITH: Unmute. Sid,you are muted. There you go. Go ahead.
FUKE: I think Christian is playing---no. I wanted to come back to a couple of these questions,
you know, about the five-acre school site, like that,I think that's a very germane issue. And I want
to share with the Commission some of the background,you know, on that. When the property was
originally rezoned back in 2005, there was a lot of negotiations back and forth---the Council - - -
time the Council has suggested, or encouraged,the applicant, "Would you consider setting aside five
acres of land for a public school?" -- -worked out in the- -- charter school. Meantime, that kind
of like fizzled out and the charter school kind of moved on. But nevertheless, the five-acre area was
proposed to be set aside on-- -portion of the Suffolk property and- - - area. Now, between the first
and the second Planning Commission meeting, I did get the chance to talk to the Planning Director
and said like the applicant is willing to set aside this five-acre area and donate it to the County for a
park and, or whatever use that the County deems the appropriate, and in so doing it would help kind
of like make a so-called more cohesive master plan, because now you would be embracing not only
the Suffolk and Puaa property but also maybe a four- or five-acre portion property on the makai side,
and it would be a little bit more complete development. So,the Director didn't accept that, you
know, for different reasons, but I'd like to kind of point out to Commissioner Yates and Members of
this - --that offer is still there. And so if the Commission wants to amend Condition U, or
Condition V, you know, related to the school site, it will basically read like, "Prior to issuance of a
building permit for any residential or commercial structures on the site, the applicant has to
subdivide and dedicate or cause the dedication of five acres of land within the Suffolk property or
the property immediately makai." So,that condition can be made,you know, as part of, you know,
the Commissioners' recommendation, or if you want the applicant to so represent, that can be a
presentation made on the part of the applicants.
CARR SMITH: ---
NEWBERG: Madam Chair,you need to unmute.
CARR SMITH: Sorry about that. Go ahead, Mark.
VAN PERNIS: Mr. Fuke, is the fair share going to be paid? Fair share per the original ordinance?
FUKE: ---
VAN PERNIS: Did you hear the question?
CARR SMITH: Repeat the question,Mark.
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EXHIBIT C
VAN PERNIS: Is the fair share per the original ordinance, or- - -pay redetermined?
FUKE: ---
CARR SMITH: Unmute, Sid. Here you go.
FUKE: Okay, yeah, so as far as the fair share,what is proposed is, it's not just the fair share, it's
pretty much like -- - all about the fair share requirements, like they were just going to adjust it- -
fair share per unit, and also to allow for fair share credits for certain improvements, such as the new
mauka-makai road, and also to exempt any -- - on the site would be exempt from the fair share
requirements, which I understand is current policy at this point in time. So we are not asking for any
further exemptions from fair share requirements, no.
CARR SMITH: Thank you.
VAN PERNIS: - - -been made?
CARR SMITH: Repeat that,Mark.
VAN PERNIS: Can you answer yes or no whether a fair share payment is included in the proposal?
FUKE: I thought I answered the question. A short answer to the question is, yes; there is a fair
share component in the proposed amendments.
VAN PERNIS: And the traffic study,why was Lako Street, Henry Street, Sunset Drive and several
other intersections, Seaview Circle, Kam,why were they not considered even though they are closer
to the subdivision, or the proposed development,than the roads that were selected by Mr. Okaneku?
CARR SMITH: Randall, you want to respond? You want to unmute your—yeah, go ahead.
OKANEKU: Oh, am I okay? Oh, as I, you know, stated earlier,that we need to make a limit to the
study area because of the cost involved, basically. And generally what I do is to consult with the
State Department of Transportation to kind of give them a heads-up of what I'm doing, and they
would advise me on the study area,which intersections they want to see looked at. And that,that's
how we determined the size of the study area for this particular traffic study. Like I said earlier,the
traffic dissipates as it goes further away from the site; there is a network of streets where the traffic
would tend to just flow, so the percentage gets smaller and smaller as you get further and further
away.
VAN PERNIS: Lako Street closer than the other streets you indicated?
OKANEKU: Lako Street is south of Kuakini Highway.
CARR SMITH: So, we've been told what-
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EXHIBIT C
VAN PERNIS: - - -
CARR SMITH: —we've been told what area was in the study, and it's front of us, so let's accept
the study and move on. Are there any other—
VAN PERNIS: I have a question for Mr. Fuke.
CARR SMITH: Yes, Mark, go ahead.
VAN PERNIS: Since, from prior testimony in prior hearings, I understand that development is not
going to take place for many years. I also understand that the applicant LLC, Suffolk and Puaa, is
not going to develop. So what's the rush? - --Mr. Kay, getting everything done by July 31st and/or
getting, going to the Land Court right away. Why can't you take the time to do those things?
CARR SMITH: Go ahead, Sid.
FUKE: Yeah, I don't understand the Land Court question, but all I know is that the applicant
already has a very solid buyer in terms of solid, Spring Capital, and understandably, no potential
buyer would want to purchase a property, if entitlement is not there. And that's the reason why Ken
was here earlier and,you know, he would have attested that, yes, you know, subject to the approvals,
that Spring Capital, you know, its plan would be,you know, stand ready and willing and able to do
the project. Now, in terms of when actually the project can be shovel-ready, it's obviously not going
to be within a year,you know, from now because there are so many premise that are required; they
have to update the drainage plan, although they did have one; they have to kind of prepare and
update the construction drawings for the new mauka-makai highway, I mean roadway,within the
project area; let alone like having to come up with a master plan that's going to be vetted and
approved by the Planning Director. So there are like a number of steps, so,you know,I think it
would be remiss on myself or anybody else to represent that next year this time the project is going
to be shovel-ready. But I think what's important is like the message that this Commission is sending
up to say it's a, it's a desirable project, it'll provide- - -you know, like, much needed infrastructure
and community service vis-a-vis in terms of affordable rental housing,those kind of things, and it
makes it a little bit more palatable for existing or future investors to look at this island as seeing that,
yes,we have a relatively developer-friendly island.
VAN PERNIS: Is it because the applicants, Suffolk and Puaa, is not going to be the developer?
FUKE:' I think we made it clear that,yes, Puaa and Suffolk are not in the position right now to do
the development. It's, it's a project that's too large for them, and also given the age of the owners,
they don't want to,you know, carry on a, you know, financial commitment that's going to stretch,
you know, an excess of ten years. Somebody like- - - development---like Spring Capital would
be in a better position to do it. If not Spring Capital, some other developer.
VAN PERNIS: Do you agree that conditions have changed and infrastructure needs are increased- -
- of the project, since the original approval in 2005? - - -need the next ten or 20 years?
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EXHIBIT C
FUKE: I think I would respond in two ways: One is that the traffic study prepared by Mr. Okaneku
was reviewed and approved by the State Department of Transportation not in 2005 but in
conjunction with the application before you, so it's fresh; and the other thing,too, is like, you know,
we've seen a lot of development residential activity on the south side, and so the whole idea behind
this project is to have people move closer to town such that you minimize the long commute that a
lot of these people have.
VAN PERNIS: You think traffic, or do you think people are going to live closer to town?
FUKE: Closer to town,I think that that's what the CDP was talking about- - -housing more in a
cohesive area- - -kind of sprawled out; if you have it all sprawled out,what--- exacerbate the
traffic condition. But I think- -- a little bit more -- -that supposedly would represent- - -
VAN PERNIS: ---
CARR SMITH: Thank you.
VAN PERNIS: -- -traffic ---
CARR SMITH: Mark,we are taking another break from you and hearing from other
commissioners.
VAN PERNIS: Well, - - -longer, let me finish - -- questioning.
CARR SMITH: - - -you are not- - -
VAN PERNIS: It's only one more question.
CARR SMITH: Okay, do your one more question.
VAN PERNIS: Isn't the traffic study dependent on the widening of the highway and/or the
construction of the Alii Drive bypass?
OKANEKU: No, it is not.
CARR SMITH: Here you go. Okay—
VAN PERNIS: Well—
CARR SMITH: —Mr. Vitousek, you are next.
VITOUSEK: Yes, I was just wondering if we did take a close look kind of item by item at the
proposed conditions and see if those conditions or if we can add conditions, that would then satisfy
the County's concerns and lead to us to moving forward with this one way or another.
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EXHIBIT C
I, you know,I agree with Christian's approach with the three items that are needed. I think having
the Commercial, Neighborhood Commercial zoning makes the options a lot more open, considering
that we don't know who the actual developer is going to be. You know,we are hopeful that it will
go through and work out with Spring Capital and all that,but we have to take this application at its
face of what the existing zoning is,what's best for the area, and I agree with Christian that the
Neighborhood Commercial zoning is probably the most appropriate and most conformant with the
Transit Oriented Development. I also agree that having a detailed master plan is crucial, and having
a review by the Kona Community Development Plan Action Committee, make sure that it's aligned
with the Kona Community Development Plan. To me, those three things are crucial, right? I agree,
I agree,I think the County -- - long way,they stooped down at the table, and they opened up and
said this is what we need in order to make this a favorable recommendation. You know, whether we
can accomplish that through conditions or whether that has to be an actual outright negative
recommendation and have them come back with those three things in hand, I would love to have
opinions from County staff on if we can accomplish that now and lead to a favorable today.
CARR SMITH: Go ahead, Christian.
KAY: I think at this point it's important to understand that if the Commission decides to go
favorable, it will be a favorable coming from the Commission and not the County, based on
whatever analysis and conditions that you place on it. I think we are prepared to speak to some of
the conditions that we see are somewhat problematic, but at this point if that's the way you choose to
go, then we would have an opportunity to address those as we go along.
VITOUSEK: Please do so, Christian,please let me know what,what conditions that are being
proposed you think are problematic.
KAY: Okay. There are a few. Condition B for both the Suffolk and Puaa ordinances,the condition
as proposed is not consistent with the Planning Department's standard condition for rezones and
doesn't consider recommendations provided by the Department of Water Supply memo dated
January 8th. So we suggest replacing the language that is proposed with the following: "Prior to the
issuance of a water commitment by the Department of Water Supply, DWS, the applicant shall
submit the anticipated maximum daily water usage calculations as prepared by a professional
engineer licensed in the State of Hawaii,to the DWS. A water commitment deposit shall be paid to
the DWS within 180 days from the effective date of this ordinance in accordance with Rule 5 of the
Department of Water Supply's Rules and Regulations. The applicant is responsible for maintaining
valid water commitments to support the proposed use until such time that the required water
facility's charges have been paid in full." So that would be the language for the first, our, our
suggested language for the Condition B for both.
CARR SMITH: Go ahead, Mike.
VITOUSEK: Sid, are you okay with the suggested revised language?
FUKE: We have no objection. It's fine. The only thing to be mindful of is that the property already
has the X number of water commitments, 510 water commitments, and so that's the reason why we
had included the term "if applicable,"because it provides flexibility that if you have the
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EXHIBIT C
commitments, then you don't have to do it. The language that Christian has provided normally
would be, on the face of it,no problem,you know, assuming that you don't have your required water
commitments, and then you have to purchase. But, if to, you know,modify the Department's,you
know, Planning Department's concern,you want that language, - - -I think we can kind of work
around it.
KAY: Yes, I, and I'll just point out that the reason that that language is suggested is because
specifically in Water Supply's comment letter,they required the payment of water commitments. So
to be consistent with what the department is asking for, that's why we added that.
FUKE: That's fine.
VITOUSEK: Yeah,that sounds, that sounds good to me. And it seems like the applicant is okay
with that. Can we move on to the next condition item that you guys have a concern with?
KAY: So, it's really Condition C, and this is the timing component. You know,the, this isn't
consistent with our standard condition for rezones; the start within, or commence within five years
and substantially complete within ten. The applicant has indicated that projects of this size take
longer to develop than the standard rezone because the applicants' Suffolk Development and Puaa
Development project is one project referred to as Pualani Makai; however, as we talked about
before,the ordinance approving the zoning were separate for the properties, which can be developed
independent of one another, and at the same time. Therefore, I think, We think the five years is
sufficient time to develop each independent property because the proposed project size is smaller
than other rezones for which five years is provided to complete construction. So we suggest
replacing it with our standard condition language that says, "it shall be completed within five years
from the effective date of the ordinance," and,you know, requiring Plan Approval, and so on and so
forth. If the Commission decides that the,you know, the ten years is more appropriate, we would
like to have some kind of definition of what substantial completeness means, because that is very
subjective; the applicant's definition of substantial completeness could be very different from what
the Department, or the County's definition of substantial completeness is. At any rate,that's,that's
our initial thought.
CARR SMITH: What is the County's definition of it?
KAY: Well,when we talk about completeness, we talk about what's being proposed, so the
proposed development. This gets into a little bit of a tricky area because once, once entitlement is
granted, the applicant or subsequent owner could develop something that is permitted in that zoning
district. So, so we stay away from contract zoning; it's hard to lock them down to what's proposed.
So there is a lot of wiggle room in substantial completeness, a lot of wiggle room in what can be
built. So that's,I would say that,you know, if they are proposing to develop 226 units of affordable
housing on the Suffolk property and 60,000 square feet of commercial and 100 units—which, again,
there's somewhat of discrepancy between what's in writing and what's on their site plan—I think
it's like 160 units for the Puaa property,then that should be complete within that time frame. I
would defer to, or I'd like to understand what the applicant's definition of substantial completeness
is. And that's why I'm asking for,to come to a more specific agreement as to what that looks like.
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EXHIBIT C
CARR SMITH: Sid, did you want to respond to that? Just a second, Max. Go ahead, Sid.
FUKE: Am I back on?
CARR SMITH: Yeah.
VITOUSEK: Yeah.
FUKE: Oh, okay. The whole idea is like, you know, substantial completion is like it's a point of
no-return; if you are developer and you are going to have like,just like a residential home, if you
have the rooftop and pretty much all you have to do is kind of like interior improvements,putting in
the sink and all that stuff, it's a point of no-return,you are going to end up completing it. So
likewise, for this project here,we are just saying that substantial completion, I would imagine that
you can tie it into having the mauka-makai road because that's a lot of investment that's got to be
made by the developer, not the County, but it's got to be made by the developer. And the way the
conditions are structured,no occupancy can be issued until the roadway is completed. So if you
have a lot of, if you expend, almost like a one-third, maybe one-half, of your investment money on
just putting in to basic infrastructure for the roadway and drainage system, and at that point in time
you are not going to give up;you're going to see the project through. So, I can't really say whether
like substantial completion is like having, like, you know, --- of the project-- - or whatever have
you, but if you want to tie it down for maybe like substantial completion meaning, for example, like
having completed all of the required drainage system and new mauka-makai road, even if the project
doesn't, you know, doesn't start up in terms of residential construction or commercial construction,
you know what happens,you know who wins? The public wins; they've got a new road, and
they've got improved drainage system. So if you want to tie it to that,that's fine.
The other thing,too, is like, you know,the five-year to commence construction. I think that for
those who understand and have gone through development process know how long it takes to get the
required archeological clearances, know how long it takes to get construction plan reviewed and
approved,you know, we have to put in all that at time. And so, as I mentioned earlier in the
testimony for the public portion—not public—in my testimony,that it'll be foolish on my part to
say,yeah, next year this project will be- - - security and simple we need to go through all of the
other permitting.
CARR SMITH: Okay. I want to let Max ask his question and make his comment, and I want Mike
to go back to his train of thought on taking us forward. Go ahead,Max.
NEWBERG: And I don't want to interrupt Mike who was making---trying to work this out. For
myself, Madam Chair,I would make a motion, and should I be able to get a second, I look forward
to stating my reasons.
CARR SMITH: Uh—
NEWBERG: I'd like to, I don't know where we were at with this thing; if it were allowed to motion
at this time.
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VITOUSEK: Yeah.
NEWBERG: In regards to Suffolk Investment LLC, I move that an unfavorable recommendation be
forwarded to the County Council on the applicant's proposed amendments for Change of Zone
Ordinance No. 05-113,based on the Planning Director's recommendation,which shall be adopted.
And, regarding Puaa Development LLC, I move to make an unfavorable recommendation be
forwarded to the County Council on the applicant's proposed amendments to Change of Zone
Ordinance No. 05-115,based on the Planning Director's recommendation,which shall be adopted.
And again, I look forward to giving my reasons.
VAN PERNIS: I second those motions on which I'll comment.
CARR SMITH: Hold on, hold on, hold on.
NEWBERG: First and foremost,the reason why -- - come--- conclusion at this point is that
ultimately, we are talking about precedent, and that precedent being that this is five years old already
on a property that hasn't been begun. The amount of exemptions,the reluctance to creating any sort
of real conversation and even now that it's five years old,just shows me we are in a bad place with
this. That's my reasoning.
On a side note,the prospective buyer who has been a part of these conversations and I believe
deserves to be recognized, Spring Capital's last project in Kona is in the new industrial area;the
storage facility that was shut down by this County because they proceeded with a mainland
contractor that was not licensed. And I think that just shows all in all a lack of disregard for how to
follow County mandates. And while I'm reluctant to come to this conclusion, I think it's the only
way we can proceed.
CARR SMITH: Mark, go ahead.
VAN PERNIS: I'm seconding those motions.
CARR SMITH: Right—
VAN
ightVAN PERNIS: And I want to that it's not five years delinquent; it's 15 years delinquent. And with
no excuse for delinquency and they are asking for another ten years, of no one structure
contributions of significance. Now, that saves millions of dollars for whoever is selling to Spring
Capital. Now, I also want to point out that in the time period that's gone by while these plans, or
while these applicants abandoned this project, electric cars have become prominent. It's anticipated
that they will go up ten percent a year---ten years - - - 50 percent electric vehicles. That's - - -
trucks as well as cars. And it's a lot less expensive to put in electric charging stations now than the
retrofit. Other places have, in Kona, have done that. I would think the developer would want to do
that, too, as a service to the community, increasing the value of its property. We are so far behind
the curve in this application that it hasn't been discussed yet. I'd like to have Ms. Yates,the other
Kona person here, or rather Kailua-Kona person here, maybe North Kona,her being South Kona,
comment on the situation. This is the worst traffic jam in Kona-
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EXHIBIT C
CARR SMITH: Okay—
VAN PERNIS: —involving from Henry Street to Puapua'anui, Lako, Kam III intersections,none of
which, or two,two of which were studied by this traffic study.
CARR SMITH: Thank you. Any other Commissioners like to comment since we are in the
discussion phase here with the motion on the table? Faye, did you want to say something?
YATES: Yes,I agree,you know,I really, really am concerned about that more than anything else
[inaudible]I don't know,but,yeah, I'm concerned about people who live there, bad condition, and,
you know, overall,I just, it just kind of seems congested the way it is. So,I go along with the
favorable[sic]recommendation.
CARR SMITH: Thank you. Perry? Do you have anything?
KEALOHA: Yeah, I will say that this is difficult for me because I respect the people involved in the
project. But 15 years is a long time, and another ten, a lot hap-you know, it's a, 25 years is a
generation. And we've already seen multiple CDPs. A lot has changed within our community. And
I don't feel we are being asked to approve a development or proposed development; I feel like we
are being asked to make a positive, affirmative recommendation on a real estate sale. And I have a
hard time tying up property entitlements for an entire generation for the purpose of a real estate sale,
and it's difficult for me.
CARR SMITH: Thank you. Mike.
VITOUSEK: Yeah, I mean I totally get where everybody is coming from on this. You know, the
15, ten, 15-year, or ten-year timeline is a long time when we don't, when the applicant isn't willing
to take another few months upfront to do the very reasonable request that the Planning Department
has asked. So,to me, if we were going to make a decision today as it is,I would also be on the side
of unfavorable ruling based on the discussion today.
CARR SMITH: Yes, Mark.
VAN PERNIS: I want to make one thing clear. I respect Mr. Fuke. I admired his work when he
was planning director. I can send my clients there to be represented by him. But as planning
director, I don't think you would ever, ever approve this project,with all these waivers and delays
and---I think it's a blight on his record. I think that Mr. Fuke should be embarrassed about asking
for approval of this project. I deeply respect his past work- - -
CARR SMITH: -- - okay. Mike, did you have something?
VITOUSEK: Yes, I just wanted to—well, first off, disagree with the previous statement and leave it
at that—but,keeping it on subject,you know,the purpose of what we are reviewing here is zoning
application, right? We have a stale ordinance for zoning, and when an ordinance becomes stale, it's
the Commission's job to figure out what is the most appropriate zoning type in that location, given
the current situation. I think that the Planning Department has offered their suggestion on what the
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EXHIBIT C
current,what the most appropriate zoning is. So my question is, is the Planning Department then
going to initiate a zoning change to a zoning that's more appropriate?
CARR SMITH: Christian?
KAY: I would defer to the Director on that question.
CARR SMITH: Is the Director still with us? There he is. Did you hear the question, Michael?
YEE: Yes, I did.
CARR SMITH` Okay.
YEE: That's, I can't give you a definitive, yes, I would initiate action right away. Political realities
is there are,there are priorities that I have to take care of between now and December. And so I
can't give you a definitive answer on that.
VITOUSEK: But,I mean,this', the follow-up, and you know, I understand we are all on a timeline
- - -that,but the next step generally would be to proceed towards the zoning that's more appropriate
with the stale ordinance, right? So it'll either be the Planning Depalunent or the owner coming back
and applying for a zoning that's more appropriate. Is that correct?
YEE: Correct.
VITOUSEK: Okay. And we, and I agree with the Planning Department;Neighborhood
Commercial zoning is appropriate for that location.
CARR SMITH: Sid.
FUKE: - - -
KAY: Unmute.
CARR SMITH: You are muted. Sid,you are muted.
FUKE: - -- so, if the requests are ultimately denied when we are at the County Council,then, you
know, like,there are several options,you know: They could kind of like, the applicant could kind of
go back again and request to have a, do the same thing, you know,the same process; the other option
is the applicant could submit an application to revoke the existing ordinances. If we revoke the
existing ordinances,then you have the underlying zoning,which is Ag-5. So this is my, my point,
and so then, given the frustration and, you know, of the owners, and given their age, then the easiest
option for them is to just kind of withdraw, I mean, you know, like, not withdraw, submit an
application to nullify these two ordinances, go back to Ag-5, they have these remaining, you know,
three parcels, going for a typical five-acre lot subdivision, get in and out, sell it for like a high-end
residential lot, Agricultural lot at the subdivision. Sad thing about it is that subsequent to the
General Plan—I realize you're talking about time—but subsequent to the General Plan---and the
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EXHIBIT C
CDP was reviewed, and they made that expressed policy commitment that this is your best place to
have a TOD. So if—but it requires the participation and cooperation of the landowner—so, what
happens, if you have the property all, you know, go back to Ag-5, I don't want to have any more
headache and just chop it up into a five-acre lot subdivision based on the distinct zoning, then it
frustrates the ability to do something that the CDP wanted to have accomplished.
CARR SMITH: And no more mauka-makai road,no improved drainage necessarily, no
neighborhood store for the Pualani community and all of that, so, I understand the frustration.
VITOUSEK: And then a question to the County on that. Is there County involvement in that? Now
that the zoning ordinance is stale and,you know, the condition for Planning Director initiating a
more appropriate zoning seems all the more relevant, given the statement from the applicant about
the reversion to Agricultural-5. So, is there a plan that we can address to maintain this Transit
Oriented Development in this location?
CARR SMITH: Go ahead, Christian.
KAY: Yeah,I would say that the request to revert would still have to go through this process; it
would be a rezone back to Agricultural-5 acre and State Land Use Boundary Amendment back to
Agricultural from Urban. So like we did in this case, we would look at consistency with the General
Plan, we would look at consistency with the CDP, and our other analysis against criteria for granting
those ordinances. In this case, it's unlikely,because of the General Plan and the CDP,that reversion
back to Ag-5 and State Land Use Ag would be appropriate in this area, as it is now.
CARR SMITH: Mike.
VITOUSEK: So that reversion would have to come back to the Commission and the Council for it
to go through.
KAY: That's correct,because it would be a Change of Zone.
CARR SMITH: Sid.
FUKE: -- -
CARR SMITH: Unmute.
FUKE: Okay, so here is a dilemma. So the property right now is what you call a zoning in limbo;
you can't do anything with the land. But you have to still pay taxes based upon the higher and best
use value,which is a commercial and multiple-family. So, even that then,I would—you know,I'm
not an attorney—but I would suspect that if you were to file a suit against the County for an inverse
condemnation of the propertybecause you can't use the land, you can't use the land. And so now
if he comes in and rezones the land, it's an applicant initiated,to Ag-5, and if you were to deny it,
then the question is like what are you rezoning it to? Are you going to keep that existing CN and the
RM zoning? Where you can't do anything? Then that- - -I think a litigation- - -
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EXHIBIT C
VITOUSEK: - - -I mean I feel like the,what they would be rezoning it to was already stated, a
Neighborhood Commercial zoning, which they think is more appropriate.
CARR SMITH: Are you going to say something, Sid?
FUKE: I guess they could do it, but,you know,I haven't seen a situation where you have like an
inverse, stuff like that, eminent domain or inverse condemnation of land use, in essence that the
County zones the property and thedeveloper saying, no, no, no, no, I don't want to do that, or the
landowner saying,no,no, no, I don't want to do that. I've seen like inverse condemnation in terms
of acquisition of property where ultimately the County buys it. But now you have the private owner,
you know,the landowners, you know,being forced to do something that the government wants to
have done through the zoning, I think that-- - legally questionable.
CARR SMITH: Jeff.
DARROW: So this,this is a unique situation in which we find ourselves here. We had a lengthy
,
discussion with the Planning Commissions regarding projects that have,that come back before the
Commission and Council with a time extension when the project basically stopped some time
previously. So the direction of the Commissions were different, but the Leeward Planning
Commission was very clear that they wanted to see something change, and it sounded like the
change they wanted to see was instead of granting a time extension,they wanted to see the project
come back, almost to be resubmitted as a new project, so that they could evaluate the entire project
again as a brand new project.
In this particular case, since this was originally approved till this time, there's been a massive
change, and that was the Kona CDP in which identifies this property as one of the, in the center of
one of the TODs. So that has been a big change when we are looking at this particular project. And
again, you asked for compromise, the Director to work with the applicant, and I think it is agreeable
that going forward with this amount of land area at this time would be a CN zoning, looks like it
would meet the intent of what we are trying to get to. But still,the Commission has the opportunity
to vote in the way it is; we have an unfavorable recommendation that's being brought before the
Commission to be voted on. That could happen with any project. It, you know,that just happens. If
that happens, then the project goes up to the County Council with an unfavorable recommendation,
and it's addressed at the Council. It's just the way it is,unfortunately.
CARR SMITH: Mr.Newberg.
NEWBERG: Just wanted to add that I do stand by my motion, and I think it's hard, you know, don't
want to get into personal reasons; I was raised that the only person I can control ourselves is
ourselves. You were granted what you requested in 2005,which was an incredible peak in the
construction industry, and unfortunately,that wasn't taken advantage of by the owners.
CARR SMITH: Things, life changes; we don't have control over everything, but. Mr. Van Perris.
VAN PERNIS: Let me say that the project was abandoned for 15 years, so they have no one but
themselves to blame -- -
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EXHIBIT C
CARR SMITH: Thank you- - -
VAN PERNIS: - - - our job is to represent the people of Kona, all people stuck in a traffic jam every
day, once the virus is gone, all people who live in the area who are all jammed up on a serious,
serious basis,unacceptable, lights changing, traffic not moving--- could tell you that—I can,too,
because I,takes me hours to get to Kealakekua off of Henry Street. And we are supposed to
represent all the people of Kona, or maybe courteous developers, but we are not here to try to find
some way of making it work for the developer, for a multi-millionaire developer, to make more
money. And I also want to say that—
CARR SMITH: Not appropriate,Mark. It doesn't matter how much money a person has or if they
are going to make a profit or they are going to take a loss—
VAN PERNIS: Then—
CARR SMITH: - - -
VAN PERNIS: —strike those comments.
CARR SMITH: ---it's not why we are here.
VAN PERNIS: We are here to represent the people of Kona and try to protect them from things like
traffic jams, which exist now.
CARR SMITH: Okay—
VAN PERNIS: We are not here to make things work at the expense of people of Kona. There's
been today even an endorsement of a negative decision, and the Windward Planning Commission
has done several times, which is supposedly popular with some people, of applications, and we
should not hesitate to do it here.
CARR SMITH: Anybody else? Did you have your hand up, Mike? No? Yes. Go ahead.
VITOUSEK: Yeah, I just would say that,you know, in the event that this motion is carried on,the
applicant is more than welcome to come back with a revised proposal that includes the appropriate
zoning,the Neighborhood Commercial zoning, as was outlined, and the master plan and the Kona
Community Development Plan. That shouldn't take very long;that should take,you know, a few
months tops really to do all that legwork, and that would barely be eating into their 15-year timeline
or ten-year timeline for construction. So I just want to say that, no, nothing against the project or
anything, I'd be happy to hear it again under different set of conditions.
CARR SMITH: Thank you. I agree,I support what you just said, echo that. All right. Are we
finished talking about this and ready to move toward a vote? I think so. All right, Christian,please?
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EXHIBIT C
KAY: Okay, again,we'll this one at a time. I've got a motion by Commissioner Newberg and a
second by Commission Van Pernis to forward an unfavorable recommendation to the County
Council, and this is for Puaa Development LLC, amendments to REZ 04-025. Commissioner
Newberg?
NEWBERG: Aye.
KAY: Commissioner Van Pernis?
VAN PERNIS: Aye.
KAY: Commissioner Kealoha?
KEALOHA: Aye.
KAY: Commissioner Vitousek?
VITOUSEK: Aye.
KAY: Commissioner Yates?
YATES: Aye.
KAY: And Chair Can Smith?
CARR SMITH: Aye.
KAY: Thank you. Madam Chair,motion carries, six-nothing. Same motion and second for Suffolk
Investment LLC, and then this is for amendment to REZ 04-024. Commissioner Newberg?
NEWBERG: Aye.
KAY: Commissioner Van Pernis?
VAN PERNIS: Aye.
KAY: Commissioner Kealoha?
KEALOHA: Aye.
KAY: Commissioner Vitousek?
VITOUSEK: Aye.
KAY: Commissioner Yates?
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EXHIBIT C
YATES: Aye.
KAY: And Chair Can Smith?
CARR SMITH: Aye.
KAY: Thank you. Madam Chair, motion carries, six-nothing.
CARR SMITH: All right, very good. Thank you, Sid, for hanging in with us on these various
hearings. Back to life,we hope we hear again under different conditions.
I did want to mention for the record that Christopher Delaunay from Pacific Resource Partnership
had sent in testimony against this agenda, these two agenda items—I failed to mention that earlier.
All right. Thanks,you guys.
The hearing was adjourned at 3:50 p.m.
Respectfully submitted,
Noriko Sauer, Secretary
Leeward Planning Commission
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EXHIBIT C
LEEWARD PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
SEPTEMBER 21, 2020
A regularly advertised hearing on the application of DOUGLAS AND KATHRYN HICKEY
(SPP 20-000218)was called to order at 9:38 a.m. via live-stream online meeting,with Chairperson
Nancy Carr Smith presiding.
COMMISSIONERS IN ATTENDANCE: Nancy Carr Smith, Barbara DeFranco,Perry Kealoha,
Max Newberg, Mark Van Perris, Michael Vitousek and Faith"Faye"Yates
ALSO IN ATTENDANCE: J Yoshimoto,Esq. (Counsel for the Commission), Michael Yee
(Planning Director), John Mukai, Esq. (Counsel for the Planning Director),Maija Jackson
(Planner),Jeff Darrow(Planning Program Manager), Christian Kay (Planner),
Tracie-Lee Camero (Planner), Rachelle Ley (Secretary to the Planning Director), Kim Tanaka
(Board and Commission Secretary) and Noriko Sauer(Leeward Planning Commission Secretary)
APPLICANT: DOUGLAS AND KATHRYN HICKEY(SPP 20-000218)
Application for a Special Permit to legitimize the establishment of a venue for weddings and similar
gatherings on a 2.25-acre portion of a 20-acre condominium property regime unit of an 80-acre
property situated in the State Land Use Agricultural District. The subject property is located at
76-1297 Waiono Ranch Road, about 1.5 miles east and mauka of the Mamalahoa Highway—
Waiono Ranch Road intersection, Waiono Meadows, Holualoa, North Kona, Hawaii,
TMK: (3) 7-6-002:028: Portion of 0001.
Secretary's Note: "- --" indicates that there were technical and/or internet difficulties, which made
the conversation inaudible.
CARR SMITH: We'll proceed with the first agenda item. And before I introduce the first
agenda item, I'd like to make a disclosure of the fact that my husband, Riley Smith, is president
and CEO of Lanihau Properties whose assets include Palani Ranch. Palani Ranch along with
many other parcels have an easement over Waiono Road. My husband and Britt Craven who is
president of Palani Ranch, have together written testimony against the approval of the Special
Permit. I share this in order to be completely transparent, but I also share that this fact doesn't
affect my personal ability to be fair or impartial. And, but I do respect my fellow commissioners
and the applicants, and so I would like to make sure that everyone is comfortable with the fact
that I can be fair and impartial. Commissioners? Any of you have any reservations about that?
No one? (Pause) Okay. How about the applicant? Zendo?
KERN: Good morning, Madam Chair.
CARR SMITH: Good morning.
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EXHIBIT A
KERN: Uin, I think we are going to—we are good. I,we trust for you to be impartial and fair
and all of that good stuff that we need on the commission.
CARR SMITH: Okay,very good. And Kathryn? Are you and your husband comfortable as
well?
K. HICKEY: Sorry, I forgot to un- - -
CARR SMITH: That's okay.
K. HICKEY: - - -I---you know,really hope that you can hear all of our testimony to and
weigh equally with the opposition.
CARR SMITH: Absolutely.
K. HICKEY: Thank you.
CARR SMITH: All right, well, hearing none,we will proceed then. So I'll introduce the agenda
item. The applicant is Douglas and Kathryn Hickey, SPP 20-000218. This is an application for
a Special Permit to legitimize the establishment of a venue for weddings and similar gatherings
on a 2.25-acre portion of a 20-acre condominium property regime unit of an 80-acre property
situated in the State Land Use Agricultural District. The subject property is located at
76-1297 Waiono Ranch Road, about one and a half miles east and mauka of the Mamalahoa
Highway -Waiono Ranch Road intersection, Waiono Meadows, Holualoa, North Kona, Hawai`i.
TMK is (3) 7-6-002:028: a portion of Parcel 0001.
All right. We have many testifiers who are logged on. I think Rachelle has them all off-line at
this point,but if anybody is lingering in here in the room,please make sure that your cameras
and microphones are turned off and wait until you are called upon.
All right,we are going to have a staff presentation from Maija Jackson at this point.
JACKSON: Thank you, Chair Carr Smith. Good morning, Members of the Leeward Planning
Commission. If you could just give me a moment to get the presentation up—sorry about that,
hold on just a second. Okay, can the commission see the slide that says, "Douglas &Kathryn
Hickey?"
CARR SMITH: Yes.
JACKSON: Okay, great. So the first agenda item is an application for a Special Permit, and the
applicants are Douglas and Kathryn Hickey.
The subject property is located in the North Kona District, and on the slide you can see the
subject 80-acre property outlined in red. The location of the permit area is shown with the red
dot. You have Mamalahoa Highway running in a north-south direction through the middle of the
2
EXHIBIT A
1 )
slide, and then off of the highway Waiono Ranch Road runs mauka and runs along the southern
edge of the property boundary.
The applicants are requesting a Special Permit to legitimize the establishment of a venue for
weddings and similar gatherings on a 2.25-acre portion of a 20-acre CPR unit within an 80-acre
property. And the slide says "legitimize the establishment"because the applicant has been
operating for the past three years an event venue out of their existing farm dwelling.
The proposed use would include construction of a 3,500-square foot event venue building that
would include a large covered deck, a large foyer, kitchen, two rooms for wedding preparation, a
storage room,women's restroom, men's restroom, and unisex restroom. Food will be brought by
the guests or provided by caterers or food trucks. And alcohol will be permitted at events but not
provided by the applicant. The applicant requests to continue to use the grounds of the permit
area, but not the applicant's farm dwelling, with temporary event tents and port-a-potties, to
accommodate rescheduled events and already reserved events until the construction of the
wedding venue building is completed. Events will occur inside the event venue building, which
will have sliding glass doors that would be closed prior to playing music, and outside the
building within the 2.25-acre permit area. The applicant is also open to limiting the volume on a
supplied PA system, should it be required as a condition of the permit. Events will be limited to
weddings, vow renewals, community and charity events. Events will be held daily between
9:00 a.m. and 10:00 p.m.by reservation. No overnight accommodations are proposed. The
applicant proposes 100 events per year, or an average of two events per week,with a maximum
of four events per week; a maximum of 125 guests at the venue at one time; and an average
events would consist of about 50 guests. The proposed use would generate a maximum of 250 to
500 visitors per week, and the applicant proposes to limit guests to bring no more than 20
vehicles to the venue and use a shuttle service consisting of passenger vans or busses, which will
be hired to transport guests between their lodging and the venue. For guests not staying in
hotels, for example a local Kona wedding, guests would be required to be dropped off at a shuttle
pick-up location.
This is the county zoning map that shows the subject property outlined in red. Again, the permit
area is shown with the red dot. And the property is zoned Agricultural-20 acres, along with the
surrounding property owners to the, I'm sorry, the surrounding properties to the east, west and
south; this is shown with the dark green. The Wai`aha Springs State Forest Reserve is just north
of the subject property.
The State Land Use district for the property and surrounding area is Agricultural, which is shown
in the light green.
The General Plan designation for the property and surrounding area is Important Agricultural
Land, which is shown in the light green color.
And this is the Kona CDP Map. Again,you can see the permit area shown with the red dot, and
you can see it's located about one and a half miles mauka of Holualoa. The CDP map shows the
Kona Urban Area outlined in red, and the HOlualoa Rural Town Transit Oriented Development
shown in the blue outline; so the property is located outside of both of these areas.
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EXHIBIT A
CARR SMITH: Maija, could I interrupt you for just one second?
JACKSON: Yes.
CARR SMITH: I think there we go,we had Naomi on the line, and I could hear her typing.
Okay, go ahead and proceed. Thank you.
JACKSON: Okay, thank you. So this is the applicant's proposed site plan. And I oriented it on
its side just so that I could zoom in and it would show up large, but you can see the north arrow
is facing to the right, so the actual orientation of the property would be if you turn this
counterclockwise. But this shows the 80-acre property. Again,there is four different CPR units
on this property, and the applicants' CPR unit 1 is shown with a dashed line in the lower left
corner of the slide. You have Waiono Ranch Road running along the left side of the slide. And
this site plan also shows three drainage easements running through the 80-acre property, one of
which runs through the applicants' coffee orchard,which,which is located just next to Waiono
Ranch Road. Here is a zoom-in version of the applicant's CPR unit. Again, you have the road,
the Ranch Road, on the left side of the slide. The applicants are proposing a parking area right
off of the road near the coffee orchard. The coffee orchard is shown with a solid outline that
runs right next to the road. And then there is a 10-foot wide paved driveway running up to the
existing farm dwelling, and just south of that is the location of the proposed venue. There is also
an agricultural storage building that is located outside of the 2.25-acre permit area.
This is a floor plan, a proposed floor plan, for the event venue. And you can see there is a large
entry foyer, to the right of that is a kitchen food prep area, and then you have a bride and groom
wedding preparation rooms, as well as restrooms, and a unisex restroom all the way to the left
side of the building. And then that opens onto a large covered deck.
This is an aerial photo of the property, or a portion of the property,I should say. You can see a
little bit of the applicant's coffee orchard on the bottom right of the slide,the driveway going up
to the existing farm dwelling, and this red outline shows the general location of the proposed
event venue building. The structure just outside of the red outline is the agricultural storage
building, and then the two closest dwellings are located west of the CPR unit, and they are about
500 feet away from the permit area.
This is a photograph showing the existing farm dwelling, or a portion of it, I should say. And
then this is the general location of the proposed event venue. You can see the large tree in both
of these photos. One is a faraway view, and then the image to the right is a closeup view of the
location of the proposed event venue. This is a photo of the applicants' driveway from Waiono
Ranch Road up towards the farm dwelling. This is a 10-foot wide paved driveway.
And then these are two photos of Waiono Ranch Road just to give you an idea of the character of
the road. It is curvy, and you can see it is a private one-lane paved road about 12 feet wide,with
unmaintained grass shoulders. This is the intersection of Waiono Ranch Road and Mamalahoa
Highway; so this is looking, standing across the highway looking back at Waiono Ranch Road.
And these are two closeup views of the shoulders of the highway at the intersection; so the view
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EXHIBIT A
. , ti
on the left is on the north side of the intersection, and then the view on the right is on the south
side of the intersection.
The planning director is recommending denial of the application for the following reasons: The
request will be contrary to state law, state land use law, the General Plan and Community
Development Plan, which all seek to preserve agricultural land for agricultural uses, such as
forestry, farming and ranching. The property is classified as Important Agricultural Land by the
county General Plan,which is the highest classification of agricultural land in the county because
of its potential for sustained high agricultural yields. The property is in the Kona Coffee Belt
and has an eight-acre farm on the 20-acre CPR unit. The planning'director is concerned that
agriculture will no longer be the primary use of the CPR unit, and the event venue will become
the primary use since it is likely the income generated by the event venue will exceed the income
generated by the coffee farm. Two other reasons for the denial recommendation are the adverse
effects on surrounding property owners, which,would include a substantial increase in traffic and
in noise, especially with events occurring up to 10:00 p.m. daily; construction and operation of
the event venue with a maximum of 250 to 500 visitors per week would substantially change
the agricultural character of the land and its present use. And the last reason for the
recommendation, the private one-lane access road is substandard with narrow pavement width,
unmaintained grass shoulders, blind curves and hills, areas where flooding occurs, and therefore
cannot accommodate an increase in traffic. The access road does not meet the fire code for fire
truck access due to steep grades over 15 percent in some sections and road pavement width of
less than 20 feet. The intersection of the access road with the highway is also substandard, and
DPW, Department of Public Works,recommended improvements be made.
These are four additional photos of Waiono Ranch Road that provide examples of the inadequate
sight distance and substandard nature of the road. The photo on the top left shows inadequate
sight distance due to hills,blind hills. The photo on the bottom right [sic - left] is an example of
inadequate sight distance due to blind curves in the road. And then the photo on the top right is
an example of both a blind curve and a blind hill combined. And photo on the bottom right is an
example of lack of drainage structures, which leads to water across the road. And you can see in
all four of these photos the unmaintained grass shoulders.
So that concludes the presentation part that I have to offer you. I do want to name off all of the
public testimony, the written public testimony, we've received and provided to the Planning
Commission since the commission received the original director's recommendation report. We
received testimony from Phil and Kelly Johnson, Steve and Audrey Grossman, Wendy Mitchell,
Brittany Horn, Allison Naito, Ann Ferguson, Ally Brown, Kyle and Ka`iulani Thornton, Beth
Balik, Lyla Mah, Danielle Burnside, Amelia Antonucci-Fisher, Aesha Shapiro, Sally Rice, Riley
Smith and Britt Craven, Sara Moore, Pamela Parker, Sarah Gehman, and lastly, a letter from the
applicant's representative, Zendo Kern, dated September 18t,which responded to the planning
director's recommendation, as well as a revised event venue floor plan. And I apologize that I
wasn't, I didn't have time to put the revised event venue floor plan in the presentation,but I do
have that available, if the commission would like to look at it once the applicant speaks about the
. revision.
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EXHIBIT A
And that concludes my presentation. I'll be happy to answer any questions that the commission
has.
CARR SMITH: Thank you,Maija. Could you pull down your presentation,please?
JACKSON: Give me one minute here.
CARR SMITH: No problem.
JACKSON: Okay.
CARR SMITH: Here we go. So, were you planning on responding to the applicant's response
of September 18th or did you want to address that later?
JACKSON: I think I prefer to address that later; if we could have the applicant present their
revised site plan and all their information, and then we can respond to that.
CARR SMITH: All right.
JACKSON: Thank you.
CARR SMITH: Okay, Commissioners, do you have questions for the county? I see
Mr. Van Pernis's hand up. Go ahead, Mark.
VAN PERNIS: Can you hear me?
CARR SMITH: Yes.
VAN PERNIS: Ms. Jackson, something seems to have been totally ignored here. This is one of
those condominium programs that scams around the county subdivision law—now illegal to do
this—so they could subdivide for condominium, condo-viding, without putting in the
improvements, such as a subdivision road. So I ask you, did you or the staff review the
Condominium Property Regime, CPR, or the amendments thereto, as part of this application?
JACKSON: Yes, thank you, Commissioner Van Pernis. So this CPR was created quite a while
ago prior to the county changing its codes to prevent CPR units on agricultural land—
VAN PERNIS: - - - applicant- - -said that's a legal CPR.
CARR SMITH: Mark, - - -
JACKSON: Yes—
CARR SMITH: -- - interrupt her when she's speaking.
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EXHIBIT A
JACKSON: So this is somewhat of a, like a grandfathered CPR. As far as the CPR documents
go, staff did review those with the Planning Department's attorney, and a couple questions that
came up that are attorney can speak to, if you'd like,was, do the applicants need to get the
landowner authorization of the other three CPR unit owners in order to apply for this Special
Permit, and the decision was no. And another issue that came up from the CPR documentation,
we typically,the county doesn't regulate private agreements like CPR agreements or CC&Rs,
but whenever we do accept a Special Permit application or any application that comes before the
Planning Commission, we do check to see if there is a private agreement like CC&R or CPR,we
do check to see whether the document prevents the Planning Commission from issuing that type
of permit, whether there is any prohibition. And in this particular CPR document there was
nothing prohibiting issuance of a Special Permit so long as it's obviously done through the
normal process of issuance of a Special Permit.
VAN PERNIS: My question is, did the CPR or any amendments allow this sort of activity
anywhere on the condominiumized property where they refer to the entire property,not just the
applicant's property?
JACKSON: I think my answer was the CPR documentation did not prohibit it.
VAN PERNIS: But do they allow it?
JACKSON: I didn't see anything in the CPR document that said event venues are permitted,no.
VAN PERNIS: Isn't it correct that this property, at least as far as the common elements are
concerned, are owned by all of the owners up in Waiono Meadows?
JACKSON: Yes. But there is language in the CPR document that gives each separate owner the
ability to develop its land according with,with conformance to the zoning laws. And—
VAN PERNIS: But that—
JACKSON:
hatJACKSON: —the ability to apply for and secure a Special Permit is allowed under the zoning
laws.
VAN PERNIS: Now, is the development to the property allowed for their condominium,their
limited common elements or the common elements that are any portion of? Well, let me put this
way: Isn't it true that they can develop their condominium,which is their housing area,but that
they can't develop the common elements, such as a roadway, without permission of everybody in
the condominium.
JACKSON: Commissioner Van Pernis, I would have to look at again whether the language
allows development of the—actually, I'm sorry,the Waiono Ranch Road, I do not believe, is a
common element of the CPR; it's a road lot that's owned by the original developer, and the
owners of the various properties up there, including the four CPR unit owners, have an easement
over Waiono Ranch Road—
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EXHIBIT A
VAN PERNIS: - - -
JACKSON: —so the Ranch Road—
VAN PERNIS: - - -I'm sorry.
JACKSON: Go ahead.
VAN PERNIS: So in all the other condominium owners and- - - another four, correct?
JACKSON: I'm sorry, could you repeat the question?
VAN PERNIS: In addition to the four condominium owners involved in this application, the
road implied by the easement for all of the condominium owners up there.
JACKSON: The Waiono Ranch Road is a road lot, private road lot, and the owners of the
subdivision, including the four CPR unit owners, have an easement over Waiono Ranch Road.
VAN PERNIS: And all ---the other condominium owners have the easement in addition to the
four, correct?
JACKSON: I guess I'm not understanding your question, Commissioner Van Pernis—
VAN PERNIS: - - - CPR provides. Now, what is the lia-well, don't, is the granting of a,this
application as to this property, since this property is only a portion of the entire property, is this
approval, if this is approved, do not all the condominium owners up there,which are per the
single Tax Map Key number, don't all of them have the same right?
JACKSON: The, should the Special Permit be approved, the obligations of the permit conditions
would fall upon the owner of the 2.25-acre permit area, which in this case is the Hickeys, the
applicant.
VAN PERNIS: Is that a legal question you referred to counsel on on whether or not approval of
this permit would run to the entire Tax Map Key number?
CARR SMITH: Mark,I believe she already, she stated that,that they did check with corp.
counsel, and that it was determined that it's only the applicant's portion of the CPR that is liable
under the potential Special Permit. Correct, Maija?
VAN PERNIS: - - -the question was—
JACKSON: Yes—
VAN PERNIS: —not presented to counsel; different question was.
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EXHIBIT A
JACKSON: Chair Can Smith,we also do have the Planning Department attorney, John Mukai.
I believe, he's available, if Commissioner Van Pernis would like to ask those questions directly
to him.
MUKAI: Well, it's the Planning Department's position that they are following the Planning
Rules, and under the Planning Rules only the owner's consent is needed; the other owners'
consent is not required for the, for the Planning Department to process the application. There'is
a rule for what needs to be in the Special Permit application, and it doesn't mention the other
CPR owners' consent. And, finally we'd like to point out that the Planning Department is not
the arbiter of the CC&Rs with regards to this CPR development.
VAN PERNIS: But doesn't it have to consider the CPR whether it allows this activity?
MUKAI: Again, as Ms. Jackson pointed out, each owner can develop and apply for the Special
Permit.
CARR SMITH: Very good, thank you—
VAN PERNIS: And- --
CARR SMITH: —any other commissioners that have questions? Where did Mike go? Did we
lose Mr. Vitousek? I'm not seeing him. Why can't I see him? Go ahead, Max.
NEWBERG: I just wanted to ask, with the permit, and I believe it's a 3,500-square foot facility
being proposed to be built,would that be on the existing cesspool, oris there going to be a septic
system installed in regards to that? - --
JACKSON: The applicant—oh,I'm sorry—the applicant is proposing a new wastewater system.
It would likely be a septic system.
NEWBERG: Okay,thank you.
CARR SMITH: Thank you. Hold on, Mr. Van Pernis, for just a moment. There is Mike, okay,
thank you. Can I please ask Naomi Melamed to leave the meeting and come back? I believe you
are for Agenda Item number 2, which could be a while: So if you could please leave the meeting
and watch it on YouTube, and you'll know when we are getting close. We'll have breaks in
between. Naomi, can you please do that? Thank you. I'm not sure who is on the phone at this
other phone number, but we really only need our necessary people on the line right now. There
is a phone number that ends in"46"; if you could also please leave and watch YouTube, and
you'll be informed when it's your time to testify, if you are a testifier.
All right, let's get back to Commissioners with questions for staff. Mr. Van Pernis.
VAN PERNIS: There are many questions. First,Ms. Jackson, do you know whether the_
proposed improvements are on the condominium owned by the applicants, or the limited
common elements, or the common elements owned by everyone up there?
9
EXHIBIT A
JACKSON: I believe thero osed improvements will be on the limited common elements.
p p p
VAN PERNIS: And who owns the limited common elements.
JACKSON: The applicants.
VAN PERNIS: And then terms of the easement, have you reviewed the easement and seen
whether it allows commercial traffic?
JACKSON: The easement over Waiono Ranch Road was provided in the deed, it was described
in the deed, and it did not describe any limitations.
VAN PERNIS: Isn't it correct that
any of the owners up in Waiono Meadows could litigate to
stop the use of the commercial activity in the easement?
JACKSON: That's a legal question.
VAN PERNIS: All right, the other legal question would be,what is the liability of the county for
allowing a use that is not allowed by the Condominium Property Regime?
MUKAI: Again—this is John Mukai for the Planning Department—it's not the Planning
Department's, I mean, it's a private matter between the condo owners;they can do whatever they
want to each other. But don't expect Planning to go in and be the arbiter of the CPRs or any of
the CC&Rs on the property.
VAN PERNIS: But it's going to allow a certain use regardless of not being an arbitrator of the
CPR meaning.
MUKAI: That's why they applied for the Special Permit.
CARR SMITH: Very good,thank you. Mr. Vitousek.
VITOUSEK: Yeah, I just, I just kind of want to echo Commissioner Van Pernis's concern. In
the, you know, I do understand what the counsel is saying about how the Planning Commission
or county is not the arbitrator of a CC&R concern. But my understanding is that the CC&Rs are
the lowest level of enforcement for that property,meaning that they have to be adhered to but
technically it's up to the members of the association to enforce that privately through action,
through legal action. I agree with Mr. Van Pernis that for us to be approving an action that
would basically be setting up the community to have to police itself seems like it could
potentially put the county in liability, and I would like to know a little bit more about that.
Specifically, my question, you know, is coming from the CC&Rs, Section 5.3(7), Use of the
Product [sic -Project], "All occupants shall exercise care in the use of musical instruments,
radios, televisions and amplifiers, and shall otherwise avoid making noises that may disturb other
occupants"; so,to me,the CC&Rs are indicating that they are not allowing loud noises , loud
10
EXHIBIT A
4
events that could become intrusive into this area. So for the county to approve such uses, to me,
would be problematic.
MUKAI: The county did issue a denial in this case, and that was one of the concerns of the
director.
VITOUSEK: I agreed,yeah. Just want to echo Mr. Van Pernis's concern, and I see that those
considerations were taken into the director's recommendation for denial.
CARR SMITH: Thank you. Anyone else? Commissioners, any other questions for Maija?
(Pause) Okay,very good. Thank you, Maija, for your presentation.
JACKSON: Thank you.
CARR SMITH: Appreciate it. All right Next is the applicant's presentation. I believe we have
Zendo Kern who is the planning consultant,the applicant, Kathryn Hickey, or the applicants, and
Alan Tuhy is the applicants' attorney—he is also with us today. If you could all raise your right
hand, please.
KERN: Including Clair,Madam Chair, Clair is here as well—
CARR SMITH: Oh, I'm sorry, yes,yes, and Clair Mason. Thank you. If you could all raise
your right hand. You, too, Clair. Thank you. Do you swear or affirm to tell the truth on this
matter before the Leeward Planning Commission?
APPLICANTS/REPRESENTATIVES: Yes.
CARR SMITH: Very good,thank you. Did you receive the Planning Department's
Recommendation and Proposed Findings of Fact, Conclusions of Law, and Decision and Order?
KERN: Yes.
K. HICKEY: Yes.
CARR SMITH: Very good. If you would like to go ahead—I kind of assume, Zendo,that you
are going to take the lead. If you would like to just tell us who you are again, and comment on
the Findings of Fact, and give us your presentation, please.
KERN: Thank you, Madam Chair. Zendo Kern,planning consultant, here representing the
applicant. Good morning to all the commissioners, Planning Depaitment staff, and everyone else
in attendance.
Okay—a bit perplexed here. Came into this, knowing this is going to be alittle bit of a
challenge, didn't think it would be this kind of challenge. I got a call from the applicant towards
the end of last---when she was looking to change the wedding event venue from inside of the
house to outside of the house, and she realized that she was actually not in compliance, so we
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EXHIBIT A
talked about that, and she said that she wants to be in compliance, that's how she operates. So
we started this process to go in that direction. She has operated the event venue for about three
years—we talked about that—no complaints,no issues all the way around to our knowledge. So
it looked like it was relatively straightforward for the most part,basically continuation of what
was already occurring there, but making sure it was legitimized. Before,you know, usually
when people come in to legitimize something, it's because there was a complaint made. In this
case,you know,we've reached out to the neighbors multiple times, etcetera.
I'm just going to take a step back real quick. Obviously,the CC&Rs is a concern for the
commissioners; Alan Tuhy can speak to that. What I want to take a step back is about
agriculture and fairness. We have a farmer here that actually operates a farm. Often times we do
see applications come in that have no farming activities on there. In this case, we actually do
have a farmer. Ms. Hickey has been a,you know, been a part of the Farm Bureau for over six
years. She chaired the Farm Bureau, as well as other charities in the area. I wonder how many
other of the surrounding areas actually do farming. That's one of the issues we have here in
Hawai`i County.
Before that, I'm a guy about fairness, you guys know, born and raised,most of you all know,
born and raised here on the Big Island, former chair of the Windward Planning Commission,
former elected official, county councilperson. Not going to come in and we're not always going
to agree on the same thing,but I do think fairness is something that is a very good place to start
with. And feeling like it's stacked, stacked and stacked kind of in the opposite manner for
fairness honestly right now. From the recommendation as one measure to even the fact that there
were 32 letters of support sent in to the commissioners; I don't think many of those were
mentioned. There was the change of venue that was put in there;that was mentioned but we
haven't hada chance to get into it. But, before that,there was a time when—so when the
Planning Commission gets a recommendation and it's a favorable recommendation,the Planning
Department says we give a favorable recommendation for these reasons and here's our proposed
conditions, right? We've all seen that many of times. Now, recently,when there is a negative
recommendation, it comes as this proposed conclusions of law and findings of fact, instead of we
propose a negative recommendation for these reasons and let's talk about it. And if that's so
what's decide, then that comes out to be a conclusions of law and findings of fact. It's different
than how it used to be. I,what I want to say right off the bat,that isn't fair, to me;I'd want an
even case, whether it be for or against it, in the same way. So if the PlanningDepartment
g YP
supports an application, should it not come out as proposed findings of fact and conclusions of
law in favor of it? I wonder. So it's very one way; if we support it,we kind of do, here is
conditions, if it's all right; if we don't,this is it,proposed findings of fact and conclusions of law.
I wonder there, conclusions of law. So, are these conclusions of law? The findings of fact are
relatively accurate ---relatively accurate. I mean if you go down these and say that, you know,
number 3, for example, on page 9, we did talk about agriculture tourism in there as a component
that we would be submitting for,but we are submitting as a Special Permit on its own;therefore,
the agriculture tourism component has no bearing on that,none. It says in ag tourism, it doesn't,
you can't do other things; if you want to do other things, go, go for Special Permits. So that's
what we are doing. So, "The proposed use is contrary to the objections [objectives] sought [to be
accomplished] by the Land Use [Law and] Regulations?" I, it's not a conclusion of law because
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EXHIBIT A
we talked about ag tourism in there. That's a reason to go against it? I don't think so. I would
think that-- -andwe have ---
CARR SMITH: You are breaking up a little, Zendo,just to let you know.
KERN: How about now? Can you hear me all right?
CARR SMITH: Yeah, go ahead.
KERN: Okay, thank you, Madam Chair, really appreciate that. You know, if we want to talk
about, talk about that, as far as,you know, an unusual and reasonable, that, that part of the code
is for unusual and reasonable use of agricultural land situated within the state Agricultural
district. I would say this meets that criteria; it's unusual and it's reasonable and it doesn't take
away from farming, it actually supports a small fanner.
Going further down, "The proposed use would adversely affect surrounding properties." On the
surface one could say that that's a potential, but we did put in there multiple times that we would
limit sound decibels to the property to a residential level, that we would mitigate sound,we
would mitigate those elements,which would normally be into, in a condition, if it was approval.
And the applicant is happy to put that in as a condition. So in here in this conclusions of law, it
goes back and forth on saying that we propose to limit it but we might not be able to limit it and
maybe we can and maybe we can't. Well, somewhat subjective. We put it out there on the onset
that we would limit that to—there is actually a technology to do that now; you can actually put
indicators on or, excuse me, some type of device around the properties or on the side, and it'll
actually click into your phone when you are increasing a sound decibel level. So there's ways to
actually read it, limit it, and even ways to report it. So that's something that can be completely,
completely dealt with. But what I find very interesting,page 10—so we go through all of that,
how basically the planning director believes there would be a substantial increase in noise,I- - -
say that there have been many events over the past three years that obviouslydidn't have this
effect,I'm sure there would be complaints—but the last paragraph it says, "Lastly, any time a
non-agricultural use is established in an area actively being farmed or ranched, it can create
conflicts between the two land uses. There is a concern that the guests of the proposed event
venue may complain about farm and ranch-related nuisances such as noise or odors from
surrounding properties." Is that a conclusion of law? Is that a reason to not do this? It's kind of
like not supporting farming? This doesn't make sense to me unfortunately.
DPW talked about some need for improvements off of the county road and Waiono Ranch Road.
Applicant is more than willing to do that there was to be a fine condition. We have also limited
the number of vehicles right off the bat. The applicant is willing to work with that as well.
There could be safety-control or traffic-control type person during events. That could be very,
very easily mitigated by way of a condition.
"Unusual [conditions,] trends, [and needs] have arisen," "there is increasing pressure to use these
farm lands ...,"this is another one where we are supporting a small farmer, and this is a way for
them to actually offset their revenue. The actual area of the farm unit—they talk about the
ALISH system and the agri- excuse me, the important ag land, this area-- -
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EXHIBIT A
CARR SMITH: - - - didn't catch - --
KERN: - - -What was that, Madam Chair?
CARR SMITH: We lost you there for a bit—
KERN: How about now?
CARR SMITH: —if you can-- - a couple of thoughts, please.
KERN: Okay,referring to the farming—everybody hear me all right? Good?
CARR SMITH: Yes.
KERN: The majority of the property is used for agriculture- - -has been used for agriculture the
proposed---really not farmable without massive, massive change, alteration of the land- - -
MASON: We lost you again a little bit, Zendo.
KERN: Okay, it's not going to be—can you hear me? If it's not going to be heard- - -
MASON: Maybe if we can turn off our camera- - -
KERN: Maybe- - - and technology is not working.
CARR SMITH: Maybe we, maybe we should move to the applicant, see what they would like to
add. Should we do that?
MASON: Could we hear the rest of- --
KERN: - - -
MASON: Maybe if—
CARR SMITH: - - -
MASON: —we can all turn of our cameras—
CARR SMITH: Hey Clair, excuse me, Clair, you can't just speak out, okay? You need to raise
your hand or,be acknowledged. We have somebody trying to take minutes of all of this, and we
can't all just start speaking out. So, appreciate it,thank you. Zendo, what do you prefer?
KERN: I'll try to clear this out,but if the sound is going back and forth still,then I can bounce
over and we can go back and forth, so just please-
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EXHIBIT A
• t
CARR SMITH: Okay.
KERN: —call, call out, if, if I'm not being heard. And I'll try to somewhat summarize this
portion of it.
Basically the part of it saying substantially alter the area of the land, or the area of the character;
again,this has been an ongoing use with no complaints, and there's many ways to mitigate these
elements.
We talk about the General Plan and Kona CDP. There is nothing explicitly against that. Both of
those could be argued in either, in either case. So I'd say,I'd say that element is very subjective.
It appears that there's Section 1.6 of the Kona CDP, but that is just an excerpt that's taken out;
there is nothing in the Kona CDP that explicitly prohibits this request.
That's my take on the conclusions of law, findings of fact. I feel a lot better, if those were just a
recommendation than a proposed conclusions of law, as I don't think they are conclusions of
law. I also think it leaves people in the public, it also could leave the commission, to being
steered a certain way. That's, and that part of it,that's, that's Zendo Kern standing on my inside
of it; it's just somebody who wants to see fairness in Hawai`i County. It sucks that this is where
we are with this application in this manner.
I want to point out that we did reach out to the surrounding properties multiple times the very,
very beginning,beyond any of our required notices, to attempt to talk about this and to basically
talk story with the surrounding properties to,you know, see if there's issues to work those out.
So the thing that I'd like to really point out here is that there's many ways to mitigate sound,
many ways to mitigate the traffic,we've already reduced the size of the venue—which I'll let
Clair Mason speak to that, she's got a lot of good detail on the venue side of it—and there's also
an opportunity to reduce the number of people. What I,what would be really need us to see
some dialogue or some conversation occur to hopefully find a middle ground to support a real
farmer, real farmers, and a way to,you know, bring in some additional income as well,will
support a tremendous amount of other small businesses. So,I wonder,this is a very big question
for the commission is, how do we support small farmers, how do we support small business, and
how do we do that in the time like this that's unprecedented. This is a much bigger decision than
just a yes or no on a Special Permit; this is an opportunity, again,to find a middle ground to
work together and, and support this.
On that note, I'd like to turn it over to Kate,Kate Hickey, the applicant for a bit, so she can talk
about her story. I didn't really tell her story because I prefer her to tell that story. Then we can
probably go over to Alan for him to speak an anything regarding the CC&Rs, and then we can
p Y
p Y Y g g g
go to Clair. And I can maybe get the,the microphone back to close out this - --. Thank you,
Madam Chair.
CARR SMITH: Thank you, Zendo. Go ahead, Kate.
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• 1 • 1
K. HICKEY: Hi everybody. I'm Kate, and this is my husband, Doug Hickey, and we own
Sunshower Farms in Holualoa. Thank you so much for hearing our application today. I'm,I'm
really nervous, so, I hope I'm clear.
So,to tell you the story of our farm, in 2012 we moved to Hawai`i - - - Chicago. I was an
attorney there, I worked in environmental law for NRDC that's Natural Resources Defense
Council, and it's always been a passion, like a lifelong passion, of mine to be living sustainably,
and really just contribute to the betterment of our earth and not, and not, you know,
non-sustainable practices. And that was a big part of our move to Hawai`i. We purchased our
farm in February of 2013. We had every goal, when we bought our farm, of making a hundred
percent of our living as organic farmers. We thought about what we were going to do with what
we had, with our gifts,with our passions, with our money, and what kind of difference we
wanted to make in the worlds, and that's what led us to this farm. When we bought it,unlike a
lot of the properties, or like many of the properties around us, it was a home with unimproved
farm ag property;there were no crops,no animals, and we started everything from scratch. To
be clear,that is the case for all of the units in our CPR. We planted our eight acres of coffee on
our own. We have six acres of pasture animals; we have a herd of sheep and a herd of goats; we
have about an acre and a half of chicken coops; we have beehives also in that area; and then a
number of fruit trees and other vegetable gardens. We actively farm about 17 acres of our 20
acres. The proposed event venue site is on our site plan two and a half acres,but that includes
our house and driveway; the actual site plan for just the venue would be about three-quoters of
an acre. So we are not talking about a large portion of our farm. We are really dedicated
farmers, and that is our goal.
We have tried a lot of strategies in the almost eight years we've owned this farm to make it
profitable. We have planted our coffee, like I said;we have our animals; we have,vend at
farmers market;we've sold microgreens to restaurants; we sold homebrewing supplies; we had a
vegetables delivery CSA; we baked bread;we sold eggs; we've done farm tours; we've done
coffee tasting; we sell our coffee online. We have done everything we can do to make our
property profitable for us and to make it as farmers. But it wasn't until 2016 when we, when we
hosted a couple of farm-to-table dinners in conjunction with Slow Food Hawai`i, of which I'm
on the leadership team. And that was the time when we realized that there was a market for
small weddings. We had a number of the guests of those dinners asked us, like, oh, could we do
a wedding up here? Do you do weddings? Are you up for weddings? And so we said, oh, sure.
You know, we thought that it was part of our ag,just ag tourism; never did I realize at that point
that we were in violation of our zoning. We did a couple of weddings in 2016, and then from the
photos and reviews from those weddings, the demand went crazy. In 2017 we did 12 weddings,
and 2018 we did 40, and 2019 we did 50, and we had 50 on the books for 2020 before COVID.
We have done over 100 weddings on our property at this point. I realize I'm telling you right
now all about how we violated our zoning, and I'm really sorry about that. I want to be clear; the
day I realized we had violated our zoning, the first thing I did was call our lawyer—Alan Tuhy is
on this call—and I asked him how we could get into compliance. From that day forward, we
have not booked even one new wedding,which I'll talk about in a second,but we are trying to so
hard to come into compliance with the rules and to be able to continue to farm and do our
wedding venue.
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EXHIBIT A
So, making a living farming,I really just want to talk about how hard that's been for us. In 2019
that was the first year that we have ever been able to take a salary from our farm. We had
farmed for six years making no money at all—sorry, my husband will talk for a second.
D. HICKEY: (Indiscernible–away from microphone) I don't, what do you want me to say? I
don't know—
K. HICKEY: Okay,he doesn't know, he didn't prepare. But we had been working for all these
years not taking a salary. In 2019 that was the very, very first time that we ever were able to pay
ourselves, and that was because of the event venue. We were also able to, to do a lot of other
things that was really helpful for our farm. We were able to sell all of our coffee at a profitable
rate for the first time because we could sell our coffee to the same clients that were at events; we
could sell them to the guests; we could sell them as coffee wedding favors; sell through coffee
like, you know, people would serve the coffee at their weddings. So it was in symbiosis with
our,with our weddings and events, our coffee, and our farming is all one.
We have—sorry, I have some notes—we've been able to hire four fulltime employees. Right
now we only have two because of coronavirus, but before coronavirus we had four fulltime
employees with full benefits, paid time-off,401K matching, bonusesat the end of the year. And
the reason we were able to do that was because of weddings. We were never able to be the kind
of employers that we wanted to be for our farmworkers before we had weddings.
I realize that it is not,an ag use to have a, a wedding venue, but it is what allows us to do our
agriculture; those things together is what allows us to be a small farm and a profitable farm.
We are also able from our small venue to support so many other local businesses like cake
bakers, florals, caterers, musicians, photographers, on and on and on. And I think a lot of those
people are going to be testifying at this meeting in our favor. I really want you guys to
understand, and the whole commission to understand, that if we lose this and we don't get to
have the wedding venue, it will be really hard for us financially, but it will also have far-reaching
impact on all of our vendors. Some of our vendors count on us for almost all of their income,
and they are going to talk to you about like -- -venue that's so many other- - -
CARR SMITH: ---break up a little bit.
K. HICKEY: --- Can hear me now okay? Chair?
CARR SMITH: Yeah, go ahead.
K. HICKEY: Okay. We also really want to support charitable events and kama`aina events with
our venue. We get asked a lot to host charitable events, a lot. And we have not been able to do
that as much as we want it, because the space that we've been out of in the past has been our
home. So it's like, it's been really hard to do any increase of events here, especially for not
being paid for them, but with the new venue,we would like a condition of our permit that at least
five percent of our events be charitable events. We've been approached by Donkey Mill Art
Center,the Kona Coffee Festival,Kona Coffee Pageant, and Slow Food,I mean there are so
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EXHIBIT A
1 1
many that have asked us and probably ones that haven't even asked us because they didn't know
that we would do this. That's a-big part of our, of our mission, and also a big part of why we
want to build this new space. Also, event space for kama`aina,you know, I,you all live here and
you know,there are not a lot of venues for locals. Almost all of our weddings are for destination
clients right now, and that's because of the small size. If we were approved for a small wedding
venue that's smaller, you know,that's - -- 50 people, let's say,that would be fine for us and our
bottom line,that would be fine to make enough money to survive as a farm. But it really doesn't
serve locals. Locals need a place that they can go that can have, you know,up to 100 guests.
And so that is why we applied for that higher number. The weddings I enjoy hosting and that I
really want to do are for smaller amounts. Our average size wedding in 2019 was 29 guests, and
that is right where I want to be. That is the size and type—we are talking about small intimate
events. The Planning Department in their recommendation said that we'll have maximum of 250
to 500 people; yet,that is,that is the maximum, but that is a huge misconstruing of what we
actually do where the vast majority of our events are small, under 50 guests. And then we want
to have a few, a handful, of larger events for kama`aina and for local charities.
Also, so finally, we are trying to follow the letter of the law in every way that we can. We did
not receive any complaints for our venue for the three years that we are in operation, nor did we
receive a notice of violation from Planning. We were the ones who started this process
unprompted so that we could be in compliance with all regulations. Since we have applied for
our permit to be in compliance with our zoning and to show our good faith,we have.not accepted
any new bookings,which has put a huge financial strain on our business. If it wasn't for SBA
loans and, you know, some of our own savings, we would have been out of business already
from having not taken any new bookings for over eight months, nine months now. And that is
really, really hard. So I just want to be clear like we are Hawaii farmers. We do farm the vast
majority of our property. We will continue to do that. We need your help. We need a lot of
help. We need it from you. Please help us and approve our permit. Thank you. That's all I
have to say.
CARR SMITH: Thank you very much,thank you. Did your husband want to say anything?
(Pause) No? Okay. I think Zendo wanted to move to you, Mr. Tuhy. Did you want to chime in
regarding the CC&Rs over CPR docs?
TUHY: Well, actually,Madam Chairperson and Members of the commission,I, my comments
will be really pretty limited. First of all, to confirm what Ms. Hickey just told you, I've
represented these folks for a number of years before this permit issue came up, and the day they
found out, I think it was the day or within hours quite literally of finding out that they needed this
Special Permit, I first referred them to a land use planning they ended up with Mr. Kern—and,
so I said the first thing is getting into compliance. And then immediately,they were
discontinuing all activity. So I think they've acted in good faith, and they've done the best that
they can to comply with the rules.
The second thing I wanted to look at, and this is sometime later,we had looked at the roadway,
and as Ms. Jackson indicated, this is a private roadway. There are easement rights over it. But
there is no road maintenance agreement. And there was kind of a concerted effort made to create
a roadway maintenance agreement among the owners. It was unsuccessful, and it was an attempt
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•
made back about nine years ago, about 2011. And that,you know, after a good start effort, there
was really no, anywhere near the hundred percent- - -hundred percent. There is no association
there. Again, partial response to Mr. Van Pernis's and Mr. Vitousek's comments, the roadway
doesn't have any particular language regarding maintenance of traffic. It is a very common
agricultural roadway. I've been here 35 years; I've driven hundreds of these. And what you do
is as a matter of courtesy, you wait for oncoming downhill traffic and you let them through. It's
never been a problem. And I'm not aware of any safety issues raised by reason of this road. So
the roadway itself is something that there is not much my clients can do short of filing a lawsuit
against everybody and trying to get a road maintenance corporation,which I think would be a
terrible thing for the owners up there. So, it kind of deferred on this for the time being to see
what they can do. And they've also, and they've not stated this so far,but they've offered to say
what can we do, how can we help, to,to help in the maintenance of this roadway up here. And if
that is some, somewhere where they can assist—one thing they can't do is that they can't create a
road maintenance agreement. What they can do is what they've offered to do, which is to offer
to improve it along with the other owners. And so far,those efforts, they haven't gone very far,
we are going to try to continue to push it.
But that's kind of the extent of what I had to say. Unless you have any other questions, that was
my comments.
CARR SMITH: Thank you very much. Zendo,you want Clair to come in now and speak to the
specific area, or—
KERN: Yeah,thank you, Madam Chair—
CARR SMITH: —is that correct?
KERN: yeah, if we could have- - - designer and- - -feedback, so we've made some
measures to kind of make some adjustments, reduced the size of the venue, etcetera. So there's
some good drawings that she has there, and that she can present that because she knows those
very well. And then if maybe I can get the floor back after that, appreciate it.
CARR SMITH: Sure. Go ahead, Clair.
MASON: Okay. Hi, aloha. Apologies, Madam Chair, for speaking over you early. Haven't
done this before online.
CARR SMITH: That's all right- - -
MASON: So I'm going to share my screen here so you can see the updated plans. I'm on two
separate screens, so hopefully I can get the - -- okay, let me know if you guys can all see this.
CARR SMITH: No—
MASON: No - - -
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EXHIBIT A
CARR SMITH: -- -
MASON: Oh, okay. Let's see, okay, here we go,uploading. Okay. Are we looking at it yet?
CARR SMITH: Yes.
MASON: Okay,wonderful. Okay, so, first,just a small introduction. I work in the construction
industry as a designer and project manager. I specialize in sustainable construction and
restoration. I have been working with Kate for the last month to develop a new set of plans that
appeases the concerns of their neighbors and concerns of her own and can serve as an
environmentally mindful establishment.
So the updated concept plan is still a concept; however, it has been changed to show a much
more accurate representation of what would be constructed. You'll see here that we have
reduced square footage by over 25 percent; it was originally 3,500 square feet, and we are down
to about 2,700. So here is the floor plan—let's see (indiscernible–voice lowered). We've
reduced the number of restrooms that was originally on the plans; we had several restrooms on
the Hilo Drafting co-plans, and here we just have the three guest bathrooms and one staff
bathroom, and this represents the appropriate and legal number of restrooms needed for the
maximum number of 125 guests, and would be much lower for the general number of guests,
which would be around 30,with maybe 10 people working. We will also be vigilant with the
placement of the septic system as to not allow any possibility of contamination to the stream that
was mentioned earlier. And right now,the Hickeys are also on a cesspool, and I have mentioned
to them that it's also very likely that we would at this time be able to switch them over to a septic
system, which is something that's going to be legally necessary for them on their property seen
here, so,that would also add to the environmental sustainability aspect.
I want to mention like Kate has been super adamant every step of the way that we make sure to
address any issues or nuisances that might be a concerning to her neighbors. For example,we'll
been adding ample soundproofing to areas where noise would be transmitted at higher decibels,
and now have the dance area, like here, in the middle of the building as to add extra sound
dampening between the sound system and her neighbors' homes. They also plan to go so far as
installing decibel meters on their property lines to monitor and keep record of their noise
compliance.
And as far as the design goes, Kate's developed really great aesthetic, and we are working
closely to design a space that is cohesive with the natural setting. The building itself would be a
combination of Hawai`i ranch style architecture and modern rustic simplicity. The building will
have responsibly sourced `ohi`a posts along this wraparound lanai, goes all the way around the
building here so you have views around the whole building, and that's all with responsibly
sourced `ohi`a posts.
And then, of course, our goal is to have Sunshower Farms to remain a carbon-neutral business,
with the addition of the space. The following are a few of the many sustainability aspects of the
proposed construction: a hundred percent solar electric power, as they are off-grid; using a
propane or solar electric water heater; using native plants and locally sourced groundcover for
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EXHIBIT A
landscaping; absolutely no use of chemical plant removal;using catchment water for as many
legally allowed purposes as possible. The list goes on. So I'll show you just a couple of
perspectives here just to give you a better idea of the design and just very simple space here.
This is from all sides, so this is looking out, this view will be looking out onto the ocean—okay,
I'm not sure how to go back there-- -
CARR SMITH: - - -
MASON: - --thank you again, and we really hope that we can see this. How important it is to
be supporting these local ag businesses, you know,they,they just can't keep getting by without
having something to supplement their income.
CARR SMITH: Thank you very much, Clair. All right,Zendo---wrap things up—
KERN: Yes, thank you, Madam Chair.
CARR SMITH: —before we go to questions?
KERN: That's perfect. Thank you, Madam Chair. Thank you, Clair. I wanted to clarify a
.couple of things actually. Based on our count, there's 55 letters of support, so that should be,
have gotten to everybody by - - -the actual number of guests I think it's gotten a little bit
misconstrued, or I think this is where some fine tuning needs to occur. We do have a,you know,
the request for the higher number, but again, as she was saying, that the average is closer to, you
know, 30,40, and the higher guest count was for actually put in there for local families that
wanted to actually have-- - so, generally-- - local weddings can be much larger- - -point of
that is is that the applicant in my discussions have been more than willing to, you know, come up
with some parameters around that to maybe rein that in a little bit, or define it greater actually
would be a better way to say it. So it's,you know, only so many events per year at that higher
number, average at lower. So there's ways to control that and mitigate that. I think that's really
important. And I think that's something that we were hoping to have done with some of the
surrounding property owners,but never had that opportunity to do so, even though we've tried
many, many of times.
And the tech that I was referring to was sound decibel meters, put sound decibel meters along the
property edge, and that can actually go back to your phone and let you know when that's risen.
What we've proposed is basically the sound decibel level at the property line of a residential use,
which agriculture is much higher. So again, you know, all of this was -- -really trying to
mitigate these issues. And the review of the CC&R documents that there is nothing in there that
we can find that create some issue regarding sound or has created an issue regarding this request.
I think the other mitigating measures that we would have in there as far as number of people,
traffic control, some, you know, some improvements, sound decibel meters, etcetera, some
improvements to maintain the roadway;these are all things that we could do to actually find a
middle ground to support a farmer, and create a good, reasonable - - - as you folks as
commissioners can see that, and hopefully can help carry on this conversation to again find a
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•
middle ground to support our local farmer. With that, I will—Kate, did you want to, did you
want to add any last, anything else?
K. HICKEY: Yeah, I did want- - - about, and I forgot to say this earlier, about our
environmental sustainability effort for our venue. Clair talked about it a little bit with how the
building design would be, but just like in every aspect of our wedding business, we work to be as
ecofriendly as possible. From all the florals that we have at our venue are all grown on island.
We forage many,many of the things that we use from weeds, invasives, we cut down things so
that we can specifically utilize those in a beautiful way while also are removing things that
shouldn't be there. We do native planting. In our coffee orchard we are one of the only farms on
our road—I think maybe the only one—who has left all of their native `ohi`a trees in their
orchard. We are trying to keep as many of our native trees as possible, and our native plants.
Our landscaping is almost entirely native plants, mostly ferns, other than the things that were
there before, and large taro patches. We are working towards being a certified carbon-neutral
business. We actually already meet the standards,but we are not technically certified as that.
All our food waste from our events, all of it, goes to our chickens or into our compost;none of it
goes to the landfill. We don't allow plastic at our events. We don't allow Styrofoam. We don't
allow straws. Everything that we use is wooden or cardboard and—if it's not,you know,
washable glass or china—and those things are chipped in a woodchipper and create,we create
mulch with that and we use it on our coffee trees or in our other farming practices. Just
throughout everything that we do in our farm, our goal is.sustainability. We love this island, and
we really, like,this will not have a negative environmental impact on our land. If anything, it
will be a positive because we'll have more money to be able to put into the sustainability efforts
that we really want to do. So that's,that's all I wanted to say about that. Thanks.
CARR SMITH: Very good,thank you.
KERN: Thank you, Madam Chair, appreciate it.
CARR SMITH: Thank you. All right, Commissioners, do we have any questions for the
applicants? Faye, go ahead.
YATES: Hi. I'd like to preface this by saying that I don't have any objections against the family
that that's trying to make a living on their farm (indiscernible–away from microphone) I just
have some—
CARR SMITH: Wait,wait, sorry,Faye, hold on just a second, yeah, can you bring your mic to
you? Thank you.
YATES: Okay, starting again. I'd like to preface this by saying that I have no objections - - -
make a living and, you know, living of their dream of being in a farm; however,I have some
question mostly like, you know,talking about the number of people,you probably would have
more people come,because if you are permitted,then you are able to advertise and more people
will see. And so my concerns are, you know, like you have more traffic on that road, so
somehow, you're going to have to do something about that road, because I think that's unsafe.
And also, does, if the, you know, if the county approves this, does the county become liable in
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case something happens? So I'm thinking that the road would need to be improved. I'm also
thinking, even though you said that you'll have decibels and all of that,we all know that,I think
it's important. I don't know if you've gotten any feedback from your neighbors how they feel
about it. And also, you know, you are saying no more than 30 to 50. No, that's not realistic; I
would think that if I had a wedding-- -people want to come to my wedding. Also, if you are
going to have a community event,that's more than 50 people. So, I mean, you know,those are
the things that I'm concerned about this,you know. You have proper restrooms? Proper
parking? And buses, you say you are going to have buses to event that go up and down the road;
So you are going to have more traffic. So that's my concern. Thank you.
CARR SMITH: Thank you,Faye. Go ahead, Mr. Van Pernis. Go ahead.
VAN PERNIS: I'll ask all the testifiers,now be they head of them Mr. Kern, or otherwise: Are
you willing to improve the road to subdivision standards?
KERN: To improve the road to subdivision standards would be too far great of a burden
imposed upon - - -this time. The applicant is willing to comply with what the Department of
Public Works requested as far as improving the - --
VAN PERNIS: - - -
KERN: -- -the highway. As far as making road improvements or mechanism to support road
improvements, yes, we've talked about that. The applicant is willing to do that within a
reasonable manner. Absolutely,without question. Again, that's why we are limiting,you know,
cars in the first place, as well as having the passenger vans and whatnot, all of this was in
mindset to limit the impact as far as traffic goes. And absolutely would be willing to contribute
some money. But I'm sorry, Commissioner Van Pernis, that would be too far great of a burden.
VAN PERNIS: That avoids the issue. DPW doesn't have jurisdiction of the road, only tie into
the highway. Is the applicant willing to provide any improvements on the private road? Any
improvements at all?
KERN: Yes, Commissioner Van Pernis, as I mentioned, the applicant would be willing to do so,
if it's within,within reason. I think this is where kind of working this out as far as number of
folks, guests, what type of improvements,what mechanism would be there,would be a way. So
under normal circumstances when you have a community association such as this that has a road,
you know,basically, a road association—
VAN PERNIS: - - -
KERN: —in other cases what we've been able to do is,you know, increase those annual road
dues for the business ---per person—
VAN PERNIS: I'm not talking about community association—.
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EXHIBIT A
CARR SMITH: Mr. Van Pernis, please stop interrupting. Can you let him finish his thought,
please?
KERN: I'll just say in this case we don't have that mechanism to make it easy, but as, to answer
your question, yes,the applicant is willing to make some improvements within reason.
VAN PERNIS: You can unilaterally? There is no association. The majority of landowners
don't approve this use. So the question is, does Ms. Hickey agree to build improvements to the
road for the benefit of her property regardless of any association or other landowner?
KERN: Yes, Commissioner Van Pernis, I,I believe I haven't stated otherwise that,that she is—
I'm just saying it makes a little more challenging not having the mechanism, but,yes,the
applicant is willing to work on road improvements or a mechanism to help fund road
improvements that are within reason for the activities that they are doing.
VAN PERNIS: Are you talking about association? I'm talking about unilaterally by
Ms. Hickey. Exclude association—
KERN: I'm talking about improvements,I'm talking about improvements or a mechanism to
fund the road improvements on the roadway, period.
VAN PERNIS: So I take that as she is unwilling to unilaterally improve the road.
KERN: That's not an accurate statement.
VAN PERNIS: What road improvements would she be willing to do unilaterally?
CARR SMITH: I think we are being a little repetitive here.
VAN PERNIS: All right, let me move onto another subject. This may be for the planner,the
last person. How many of the improvements, parking, etcetera, are on the common elements of
• the property owned by numerous, all the owners up there?
KERN: To our knowledge, all the improvements would be made, or what we commit to is all
the improvements would be made on the CPR parcel that is owned by the applicants.
VAN PERNIS: I understand the CPR, but CPR includes limited common elements and common
elements, which are owned or influenced by persons other than the CPR owner.
KERN: Right,I mean, so,we are all pretty aware that this was a, quote/unquote, subdivision,by
way of CPR, and in these cases, it was an 80-acre parcel that each lot got 20 acres, so each
person is allowed to use their 20 acres with,to have their property rights. And so they would
have their—
VAN PERNIS: ---rather than answer about the location, let me ask the last person. How many
of the elements have been drawn around the common elements owned by other property owners?
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EXHIBIT A
KERN: To our knowledge,there are none.
VAN PERNIS: Let me ask the testifying specialist who drafted plans and presented it to us.
CARR SMITH: All right, Maija, did you want to respond?
JACKSON: Yes, Commissioner Van Perris, my understanding is that all of the parking,
driveway improvements and the event venue will be located on the limited common element unit
1 that's owned entirely by the Hickeys.
CARR SMITH: Thank you. So no common elements.
VAN PERNIS: And do all, all persons who have interests in the limited common elements,have
they joined this application as applicants?
CARR SMITH: We discussed that earlier, Mark, and I believe it was stated by the Planning
Department that that was not, it was determined to not be necessary.
VAN PERNIS: Oh,I disagree, I think that—
CARR SMITH: Okay, all right—
VAN PERNIS: - - - common mistake CPR—
•
CARR SMITH: All right, I'm going to move over to Mr. Tuhy. Go ahead.
TUHY: Just very briefly, Mr. Van Pernis. Article XVI of the CC&Rs for the four-unit
subdivision says, "Notwithstanding anything to the contrary [contained in this Declaration,]
individual unit owners shall have the right, at their sole discretion and without the consent or
permission of other unit owners or the Association, to renovate, remodel, make additions to,
enlarge, remove, replace or restore the improvements"and so on. It also provides in the small, in
the CPR for Greener Pastures, is what it's called, that's four-unit subdivision, it says, and this is
Article XVII, "To the extent that joinder of any other unit owner(s) may be required in order to
effect any alterations to individual units," everybody is deemed consent with. So I think the
consent of other owners is pretty well addressed in there with the idea being that there is some
leeway there for the owners to go ahead, so there is no veto power by other owners.
CARR SMITH: Very good,thank you.
TUHY: Thanks.
CARR SMITH: Mr. Newberg, go ahead.
NEWBERG: Yes, I'm trying to determine the exact location of the propertyon Figure 1. I'm
curious—it seems that the subject property applying for the permit is 1.4 miles from Mamalahoa
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EXHIBIT A
,
Highway—and I'm curious to just get a little more information on the layout of the property
compared to maybe how many properties, guests would pass on the way. I don't want to
assume,but I'm thinking makai to the subject property and then perhaps properties that would be
below that that could be possibly impeded by traffic that are trying to flow mauka up to the
highway,just to get a little bit of feel of where we are located for the subject property and the
traffic.
CARR SMITH: Okay,thank you. Go ahead, Maija.
JACKSON: Yes, Commissioner Newberg, there are 19 lots,I'm sorry, 16 lots that have access
to Waiono Ranch Road, and of those 16,nine of the lots are mauka of the Hickey's CPR unit.
NEWBERG: Okay.
CARR SMITH: Commissioner Vitousek.
VITOUSEK: Yeah, I also just wanted to point out that in the map on Figure 1, Mamalahoa is the
bottom of the map, so all the traffic is going mauka up Waiono Ranch Road to get to the subject
property.
CARR SMITH: Thank you. Commissioner Kealoha, did you have a question?
KEALOHA: Thanks, Chair, yes, I do. I'd like to ask the Hickeys. How much pounds of food
do they produce and what is their average annual revenue off their farming activity? Regardless
of whether or not you are paying yourself a salary. I'm just interested in your average annual
revenue, as well as your poundage produce.
CARR SMITH: Go ahead, Kate.
K. HICKEY: Hi, okay, so for coffee our trees are new; we planted--- so each year our actual
production has been going up because, you know, for a while they were adolescent trees. Our
production right now is at about 30 to 40,000 pounds of cherry per year, and of roasted that—we
sell nearly all of our coffee is roasted, and not as cherry—so that ends up being about 3 to 4,000
pounds of roasted coffee a year. We don't commercially sell any of our other products, although
we do eat them ourselves and give them to people and, you know, share,but,I mean we use our
animals for milk and meat, honey, eggs, and have quite a number of fruit trees, and taro patches,
so I've never weighed any of those amounts. We don't sell them commercially, so I don't know,
but we are actively farming all of those areas. It's just more for homestead. The part that we
commercially farm is our coffee only. And my husband is looking up our revenue right now,
and he's saying that last year we made about$30,000 from our coffee. Next year our revenue
should be higher on our coffee because our yields are just going up every single year. So, you
know, hopefully, they continue to go up, but not all of our,not all of our property is well suited
for coffee farming. It's all fairly well suited for farming in general, but not all well suited
specifically for coffee because of soil in different spots and where there's water and streams that
go through different places, and things like that. So right now,there's maybe about an acre more
where we can plant coffee and that's it.
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EXHIBIT A
KEALOHA: Thank you.
CARR SMITH: Kate,while we are on that topic, could you share with us what your special
event business brought in in 2019? Do you have that handy?
K. HICKEY: Yeah, in,well, as far as total sales in 2019, $250,000, but that is not including our
expenses; so like our florist, for example, we pay her directly from that, and so about$50,000 of
that went directly to florals, for example, and to staff and so on. So from actual, actual profit,not
just revenue,we made approximately $80,000 last year on our, on our events.
CARR SMITH: Thank you. Any other questions, Commissioners? Commissioner Van Pernis.
VAN PERNIS: Yes. Are you advocating—this might be for,Mr. Kern—are you advocating
that, are you advocating that all agricultural properties be allowed to have commercial activities,
if, in order to make more money?
CARR SMITH: Mr. Kern.
KERN: I'm advocating on a case-by-case basis that farming is very hard on a good day. And I
think we are going to see a trend, I mean we've seen it for a while,where there are ways or
mechanisms in place for farmers to offset or increase their income. I do think we are going to
see that as a trend. Am I saying it's across the board? Probably not. But I do think it's a trend.
If you look in California as well,where in the wineries, they actually do quite well,they do a lot
of weddings as well, and getting people on site actually allows you to, you know, sell your
product for a greater yield than you would selling it through a wholesale. So, I think it's a trend.
VAN PERNIS: Isn't this precedent, if granted? Isn't this application precedent for commercial
activity on all agricultural properties?
KERN: Well, if we'd like to discuss precedent, we,precedent has already been set,2010, a
Special Permit for Duarte Farm Co., Inc. Hawai`i; they have a Special Permit for weddings, as
well as overnight accommodations, and I think a much longer list of other elements. But that's
why it's a Special Permit, you know. Does it meet the criteria? Are there ways to mitigate
impacts? And in this case it does meet the criteria, and there are ways to mitigate impact. I think
we should be getting into more of that. But precedent has been set, Mr. Van Pernis, if we are
going to go there.
CARR SMITH: Thank you.
VAN PERNIS: That's Kauai,you said?
KERN: No,that's the Big Island,that's Tax Map Key starting in 7-005, so it's just- - -way
from the applicant's - - -
CARR SMITH: Thank you, Mr. Kern. We are-moving on to Commissioner Vitousek.
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. ) I
VITOUSEK: Is there going to be public testimony on this as part of this meeting?
CARR SMITH: Yes. We're going to get there as soon as we are finished with this line of
questioning, then we're going to go to public testimony after a break.
VITOUSEK: Well, I would like to reserve my questions for after public testimony.
CARR SMITH: Absolutely. We can do that. Max, did you have your hand up? Commissioner
Newberg?
NEWBERG: I did,but I agree with Mr. Vitousek; it'll probably be more prudent to wait until --
-thank you.
CARR SMITH: Very good. All right, Commissioners, are we good at this point? (Pause) All
right. Thank you, Applicants. Let's take a 10-minute break here to allow testifiers to come on
line. I have 11:17, so we will come back on around, let's say, 11:30. Thank you. Please make
sure you are muted and your camera is off.
(Chair Carr Smith called a recess at 11:17 a.m. She called the hearing back to order at
11:31 a.m.)
CARR SMITH: All right, I guess we'll proceed. I'll call up the names of who I want to swear
in, and then I'll cross them off after they testify. We're just going to have to try to do it like that.
It's going to be a lot to get through everyone, but thank you for your patience and understanding
as we figure this out. Does that work,Rachelle?
LEY: Yes.
CARR SMITH: Okay. All right, so the first group of people that I see that I'd like to swear in is
Amber Haley, Michael Haley, Jessica Bruner, Bre Nelson, and Martin Rathbun, and Aislinn
Chalker. If I could do those six, seven, six. If you folks could please raise your right hand and
swear or affirm ---sorry?
A. CHALKER: And Aislinn Chalker, if I-- -
CARR SMITH: So, right now I'm swearing in Amber, Michael, Jessica, Bre,Martin and
Aislinn. I don't know how else to do it. It's too confusing otherwise. So, folks, if you could
please raise right hand and swear or affirm that you will tell the truth on this matter before the
Leeward Planning Commission? Could you nod or say yes.
TESTIFIERS: Yes (and nod).
CARR SMITH: Very good,thank you. All right. Before we get started—so the Planning
Department did mention all the testimony that had been received—Commissioners, have you all
reviewed the testimony?
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EXHIBIT A
VITOUSEK: Yes.
CARR SMITH: If anyone has not, can you please speak up? (Commissioners indicated that
they had reviewed the written testimony received earlier.) Okay, all right. Yeah,we actually
have around 40 testimony to hear, so, due to that,turn off your cameras and mute yourself until I
call on you,please, except for the commissioners. And Amber will be first. Your testimony is
going to be limited to three minutes, and we're,that's going to be very strict today. Normally,
when we are in-person, it's a little bit different,but since we have so many testifiers, we have to
stick to that time framing. You will literally be muted after three minutes. So please use that
time efficiently. Then after your testimony is complete, after your three minutes, we're going to
ask Commissioners at that point if there is questions for that testifier, and when we no longer
have questions for that testifier,then that testifier will leave the room. Okay? Thank you all
very much. All right, let's start with Amber Haley right now. I believe your testimony is for
yourself, and we'll be seeing a lot of you today,but right now this is just your testimony,
correct? Okay. Go ahead, Amber.
A. HALEY: Okay. Good morning. My name is Amber Haley, and I'm a local resident,
entrepreneur, and I'm a Big Island realtor. Really happy to be here, so thank you so much.
When I heard that Kate and Doug had voluntarily turned to the Planning Department to make
sure their venue was in complete compliance with the county, only to receive a negative
recommendation, I was personally, incredibly disappointed. This is when I decided I must be
here today virtually in person without question on a very busy Monday for my business, because
that is how much I believe in them getting their permit. And of course, I'm not surprised to see
there are so many outstanding community members, neighbors, and business owners also
supporting them with many letters and testimony submitted. So here is why I think this permit
really needs to be approved among other reasons. As a realtor, I've come to learn unfortunately
that so many businesses and individuals openly and willingly operate out of compliance for
many years with no repercussions. And to me,this feels incredibly problematic. You may even
know some of these businesses; people operating illegal rental properties, people operating small
businesses without a GET license, people building houses and structures without county permits.
And if you weren't aware,there are venues on the Big Island that operate openly outside of their
zoning. I could probably, if I was getting married,book a wedding right now at one of these
venues. And these things are all too common. As a licensed realtor,I've always made it a
priority to make sure I'm operating legally, ethically and in full compliance with the law. I know
the Hickeys to be the same. They are people of integrity that only want to operate in complete
compliance. Kate herself is a lawyer; she holds herself personally and professionally to the
highest code of ethics. I canimagine the frustration and difficulty they must feel right ht now,
fighting to follow the rules with the potential of being denied. If I myself as a professional
applied to be in compliance and was denied, it would be absolutely heartbreaking to watch all the
others of their zoning continuing to do so without issue.
So here is my point. The systems need to reward those who are at least trying to be in
compliance, and not those who aren't. I hope today you set that precedent. Beyond all the many
reasons they deserve a special use permit, the Island of Hawaii needs a business like this one.
I've known Kate and Doug and their employees for years. They have helped shape so many
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EXHIBIT A
.
individuals in this community. Even the little things they do, like not taking the extra fees from
vendors that the large resorts do, they offer generous benefits, all of the things they put money
and resources into community members and into the State of Hawai`i. It contributes and makes
a difference and makes our community better, safer and a stronger economy. And I don't even
need to mention this, but the pandemic has decimated our local economy. By approving this
permit,you'll be directly bringing money back to the state.
Thanks so much. I could never express in three minutes how much their farm is impacting
myself personally and the community as a whole. I've seen them offer their time and wisdom to
help so many other entrepreneurs facing obstacles and their businesses and come up with smart
solutions. I want to show you that they are people who can be trusted to address any concerns or
impacts of their business, with intelligence, empathy, and fairness. I hope the public testimonies
you are about to hear can paint a bigger picture on how far-reaching your decision today will be.
I really hope you swiftly approve this permit. Thank you. Aloha.
CARR SMITH: - - -I'm sorry I was muted. Commissioners? Commissioner Van Pernis.
VAN PERNIS: Ms. Camero, are you advocating that every agricultural property like this one
should be allowed to carry on commercial activities?
CARR SMITH: Mr. Van Pernis, Ms. Camero is a staff member at the county, and she is our
timekeeper today. Ms. Haley is the one that just testified—
VAN PERNIS: All right,I'm sorry—
CARR SMITH: I'm hoping you are not going to have that question to every single testifier,
but—
VAN
utVAN PERNIS: ---this testifier says she's a realtor, and I want to know if she is advocating all
agricultural properties, such as this one, be allowed to carry on commercial activities.
A. HALEY: As a realtor, I just want to speak within my area of expertise, so I'm kind of with
Zendo on this one; I think it needs to be on a case-by-case basis. So I'm here testifying today
specifically on this case from the information that I have and I know, and I believe that they
should be granted the special use permit in this situation. Absolutely, my answer could be
different,I don't know, if it was a different situation and if I had different information. But
that's beyond my scope of expertise.
VAN PERNIS: Do you realize that this application violates state land use regulations?
A. HALEY: I'm sorry, I'm not sure if I understood. Do I—can you repeat the question?
VAN PERNIS: Are you, are you aware that this application violates state land use laws?
A. HALEY: I am aware that they are doing everything in their power with all the resources they
have to come into compliance to not violate any law, and that's why they have my support.
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EXHIBIT A
Because I think that's the right thing to do. And it would have been easier for them to act out of
compliance, but that's not what they've chosen because that's not the right thing to do.
VAN PERNIS: They've gotten---
CARR SMITH: Thank you very much. We are going to move on,we are going to move on,
Mr. Van Perris,to Michael Haley. Thank you, Amber.
M. HALEY: Aloha,thank you—
CARR SMITH: Hi Michael.
M. HALEY: Aloha. Thank you for having me. I appreciate it.
CARR SMITH: Yes, go ahead.
M. HALEY: Okay. I would like to say,I, as a real estate agent, I've worked with multiple Kona
coffee farmers and many of the other amazing individuals who make up our agricultural industry
here on the Big Island. And along with everybody else during the pandemic, local farmers are
facing tough economic times in addition to the high cost of labor and by-hand production. The
most successful farmers I've worked with generally share one thing in common, and that's they
are very smart business people who have learned to diversify their farms. What Kate and Doug
Hickey have done is create a sustainable family farm that they have kept successfully running by
also turning it into a small wedding venue. Agricultural sustainability is something that we
should strive for as an island community. I've found it hard to find anybody who disagrees with
that who lives here. And our farmers are at the forefront of this movement. Having a farm that
pays its employees livable wages and offer generous benefits, like Sunshower Farms does, is
often marginally profitable at best. This special use permit will allow them to operate a small but
impactful wedding venue that will contribute enormous value to their farm operations. I truly
believe that the agricultural industry is what we as an island need to focus on to revitalize our
local economy, not to mention when people think of Kona,they think of Kona coffee. As a
realtor who specializes in green properties,I'm super excited that their plans for their new venue
include sustainable design powered by renewable solar energy. Sustainability is even built into
the way that they conduct events, like Mrs. Hickey was saying on how they compost and mulch
all of the things and literally create zero waste in a time in 2020, as we all know. I like the
way—excuse me—and lastly,the principles of malama `aina are at the core of everything that
they do. It's really an aspirational model for proper design in business sustainability. You
know, please stand with me in supporting these local farmers by approving this special use
permit for Sunshower Farms. Mahalo.
CARR SMITH: Thank you very much. Commissioners, do you have any questions for
Mr. Haley? (Pause) Very good. Thank you. So you and Amber can drop off the call, if you
will, please, and maybe pick it up on YouTube. Thank you. All right, we are moving on to
Jessica Bruner. Jessica?
BRUNER: Okay, ---
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A
CARR SMITH: Hi there. Yes, thank you,thanks for being here. Go ahead.
BRUNER: Yes, thank you. So,yeah, my name is Jessica Bruner. I'm the director of sales
operation manager for Hawai`i Sound&Vision. We do event lighting, dancefloor sounds,
bands, DJ disc. So I'm speaking on behalf of our entire team here,which is about 30 to 40
people, including all of our musician partners,performers, technicians, designers. We've been
here operating on this island and neighboring islands for 20, almost 30 years now. So we've
been fortunate enough to be a part of countless events at so many wonderful venues, and I'm
including some of the previous ones at Sunshower Farms. And so, in working with Kate in more
and more, especially over the last year or two, and seeing this project become such a passion and
their evolution to try to establish their location into a legitimate venue, which is so,which we
think is essential in a lot of ways, especially in seeing spiking interest, because it is so unique and
special. And I think in hearing Kate speak about it earlier, we can all see why. As Kate had
mentioned, not only is this a place where people to come together in celebration of love and
different events that they are having,but also importantly, it's a place for the creative and driven
people for our local industry, the tourism-specific event industry that play such a big role in
driving our economy here on the island as a whole- - -with caterers, designers,performers,
florists, all these people to thrive. And especially in these times where we are seeing the effects
of COVID limiting our industry and in internal community, it's going to be so important for us
to, when the time is right, to come back into a place where we can all thrive again, and we
believe Sunshower Farms can play huge part in that process. These type of events are what bring
people to our island, provide income to our local community and professionals, and what bring
us together as human is something we definitely need. So, again—I'll keep it brief—on behalf
of the whole team here,we support Sunshower Farms for their special use permit and feel it's
very important to our island in a big way to- - -. Thank you.
CARR SMITH: Thank you very much. Commissioners, any questions for Jessica? (Pause) All
right. Thank you, Jessica, appreciate it. Okay, our next testifier is Bre Nelson.
NELSON: Hi, good morning, my name is Bre Nelson. I'm speaking in support of Sunshower
Farm's permit, as a small business owner myself. I believe the venue will benefit the community
in several ways. When my husband and I were planning our wedding here, we searched for
venues that were affordable and could accommodate around 100 people, and we really struggled
to find something that would work for us. For a time we even considered doing our wedding on
the mainland or taking our business to another island, and eventually we settled on a venue in
Kohala, which I had now learned actually runs these same kind of events unpermitted. Do we
want to punish Sunshower Farms for opting to do things legally on their own accord, when there
are other venues on this island, which continually host these events unpermitted. As evidenced
by the anecdote that I just listed, there's already a lack of affordable venues for locals and
travelers alike to our island, and the wedding industry on this island will also greatly benefit
from Sunshower Farms operating in this capacity. Sunshower Farms not only employs local
people who work on their farm, it also benefits our wedding industry. And as a wedding
photographer,I depend on venues like Sunshower Farms, because their clients and my clients
typically have the same budget range for wedding services. Many of the large resorts cater only
to very wealthy mainland clients,which is great, but that leaves little options available for locals
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and more affordable wedding venue options. With more wedding venues available, it will create
a ripple effect that would benefit other local artisan, such as myself, florists, makeup artists,
hairstylists, local boutiques,photographers, designers, planners, videographers, rental equipment
companies, food trucks, restaurants, caterers, among others. In a time when small businesses in
our economy are already struggling a great deal, venues like this are needed. If this application
is not approved, it will be deterrent of many small business owners on this island. I understand
the potential concerns that have been mentioned,but livelihoods are at stake. So thank you very
much for your time. Aloha.
CARR SMITH: Thank you,Breanna. Questions from the commissioners? Commissioner
Van Pernis.
VAN PERNIS: - - -
CARR SMTIH: You guys are muted. There you go. Go ahead.
VAN PERNIS: Ma'am, do you live in the Waiono Meadow Subdivision?
NELSON: No, I do not.
VAN PERNIS: Thank you.
CARR SMITH: Thank you, Bre. All right,we'll move on to Martin Rathbun.
KERN: Madam Chair, it looks like Mr. Vitousek was going to ask a question.
CARR SMITH: Oh,I'm sorry. Sony I didn't see that. Mr. Vitousek, go ahead.
VITOUSEK: Sure—I'm not sure if the testifier is still on.
CARR SMITH: I believe, I see her- --
NELSON: -- -
CARR SMITH: She's here.
VITOUSEK: Okay. My question is, you know,with your involvement in the wedding industry,
are there any additional wedding venues that you are aware of that are legal- - -
CARR SMITH: Did you say, "are legal?"
VITOUSEK: Yeah.
NELSON: I am not sure who is operating legally or not,to be sure,but I do know of ones that
are not operating under permit.
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EXHIBIT A
a,
. ► A
VITOUSEK: Thank you.
NELSON: Thank you.
CARR SMITH: Anyone else? (Pause) Very good. Thank you. Okay,now we are going to
move on to Martin Rathbun.
RATHBUN: Aloha everyone. I'm a pastry chef and cake baker. I started working with Kate
Hickey in February of this year when their baker was on vacation. I'm a prior owner of Daylight
Mind Coffee Company, and we had a very successful wedding venue,which is now taken over
by Papa Kona, and I am the principal baker for weddings there. There are few and far between
wedding venues other than our beaches and our parks that are operating with permits and
licenses that are required. I was baker at the Four Seasons; definitely, wedding venues at the
Four Seasons, which there are five, are far too expensive for our local populations and for
visitors who are spending the money to come here on a shoestring to have a destination wedding.
I depend on business from all wedding venues and individuals. For my business, with COVID,
so many people have left the island and returned to the mainland, and I hope they've been able to
continue baking, and right now I'm swamped with business, which is great. Kate and Sunshower
Farms have provided me with substantial business. I would really hate to lose that. They are
also providing a destination wedding venue, the likes of which I have not seen. The view from
their farm is spectacular, and the reviews that they are getting for the weddings that they are
hosting are really nice. I would support their application for the jobs that they provide to our
community.
And then I also had statements from Aaron Schroeder. I don't know how that fits in here,
Ms. Smith.
CARR SMTIH: Yeah, let's, let's finish up your personal statement here.
RATHBUN: Great.
CARR SMITH: Anything else to add?
RATHBUN: No, no.
CARR SMITH: Okay. Commissioners, do you have any questions for Mr. Rathbun? (Pause)
Okay,very good. Then the next testimony is Mr. Rathbun representing Aaron Schroeder. Go
ahead, Martin.
RATHBUN: So I have a statement that was written by somebody who is not able to be with us
this morning:
"My name is Aaron Schroeder. I am a personal acquaintance of Doug and Kate, and have
worked as a caterer at their farm. I have known Kate and Doug for many years, more in a
personal capacity than a professional one. But I have worked at their farm for catering events,
and I can say a couple of things about their venue and the business in general. Like many
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EXHIBIT A
farmers, Kate and Doug have diversified to make their farm succeed, and what I found beautiful
about their venue was the way that the life of the farm and community were so seamlessly
integrated into the events they've hosted. The dinner I worked at featured products from
Sunshower, at least half a dozen different local businesses, guests walking through the gardens
and acreage, animals, etcetera. Beautiful as Sunshower is and the events there are beautiful,
there's something, there's nothing manicured or staged about it. It's a working farm, something
truly unique, and Kate and Doug bring that identity proudly to their work as event hosts. I think
it's worth saying that farming is a profession that is challenging like few others, in part because it
leaves no room for a typical work life balanceor nine-to-five commitment. It succeeds only
when farmers see themselves as intimately connected to a place, and even then, only incredibly
hard work, determination, and luck can make one succeed. I am a fifth generation farm kid from
Iowa, and my father stopped working our 500-acre land, which was entirely unsustainable cash
crops, because he could no longer make ends meet. This illustrates just how difficult was the
task that Kate and Doug undertook and why they have had to diversify. They were committed to
running a farm and a coffee business fulltime and in a sustainable way, and in order to make that
commitment financially viable,to make a profit,to pay their workers fairly, and to provide
benefits, they began opening up their farm for events. It's to their credit that they've so involved
that work in the life of the farm, and that part of what makes their venue unique is that the farm
and the events venue are so closely connected. And that's something about Kate and Doug
personally I hope you'll take into consideration. They are among the most honest, straight-
dealing people I know. Indeed,that's how they found themselves here. They wanted to run the
farm the right way, so rather than cutting corners, they started hosting events. They wanted to
run those events the right way, so rather than skirt the land use regulations like many venues,
they proactively sought this hearing. They are doing exactly the things we'd want good farmers,
good neighbors, and good members of the community, to do. For all of these reasons, I
recommend that you grant their permit request."
CARR SMITH: Thank you. Thank you very much, appreciate it.
RATHBUN: You're welcome.
CARR SMITH: Since that was testimony of someone else, we won't ask you questions
regarding that testimony. But thank you very much—
RATHBUN: Mahalo.
CARR SMITH: —appreciate your being here today. Next,we have Aislinn Chalker.
A. CHALKER: Hi.
CARR SMITH: Am I saying your name correctly?
A. CHALKER: It's Aislinn.
CARR SMITH: All right, Aislinn. You are going to begin by representing yourself, and then
you'll represent someone else, so start with your-
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EXHIBIT A
A. CHALKER: Yes.
CARR SMITH: —personal three minutes. Go ahead.
A. CHALKER: Okay. Aloha, my name is Aislinn Chalker. I'm a photographer and web
designer, born and raised here in Hawai`i. I first met Kate and Doug in 2017. Kate is a member
and now a leader of a group of creative business owners here on the island: Kate took over as
leader from me just a few months ago. I just want to say anecdotally, I have a six-week old baby
but made it the point to be here the last few hours, specifically to testify and to support them
because I believe so strongly that, for this expansion of their farm business and their event venue.
From listening to beginning of this meeting,I understand that there are legitimate concerns about
road usage, potential sound disturbances, but I think it's really, really critical to remember, as
they mentioned,that for the years that they have already been running events, there hasn't been a
single complaint about these things. And I'm not surprised to hear that there haven't been any
complaints, because I know Kate and Doug so well. They are good people, they are good
neighbors, and they believe in contributing positively to the island community here on the Big
Island. As someone born and raised here—and I'm sure a lot of you who have been born and
raised here know that that's not always the case for people who moved to the Big Island. I think
specifically that they want to be able to host kama`aina events - --not only tourists who come
here for weddings, but locals and local charities, I think that's a really,wonderful, wonderful
thing. And I want to speak to how hard it is to be a small business owner here in Hawaii, not
even just right now with COVID, but in general it's really, really hard to run your own business.
There are a lot of hurdles, a lot depends on tourism, and it's not uncommon for people to have to
need secondly income stream. My own business is tourism-based, and my husband and I have-
- - zero income for the past few months. If we had a way to subsidize our income the way that
Kate and Doug are trying to do to subsidize their farm income,we would a hundred percent be
taking advantage of that. Farming is a really legitimate income stream for Hawaii residents
that's not tourism-dependent, and I think we should be fighting ways to support those endeavors
to support- - - farmers, and not make life harder for those wanting to consciously work the land
and support the local community. Thank you.
CARR SMITH: - - -
A. CHALKER: Sorry, I think you are muted.
CARR SMITH: Sorry about that. Commissioner Van Pernis, go ahead and pull the microphone
close to you, please.
VAN PERNIS: Ms. Chalker, are you aware of the written complaints and objections contained
by the other, by other, contained in testimonies by the landowners in the subdivision that this
commission has received?
A. CHALKER: I'm aware that they have received complaints.
VAN PERNIS: Then your statement that there has been no complaints is not accurate?
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EXHIBIT A
A. CHALKER: My understanding, and please correct me if I'm wrong, is that prior to Kate and
Doug coming forward, sort of telling them themselves, there were no previous complaints. And
so the complaints are,were submitted as part of this, this happening right now.
KERN: Point of order, Madam Chair. Zendo Kern—
CARR SMITH: You mean objections as opposed to complaints, correct?
KERN: To—point of order—to say that there is complaints is false; to say that there is letters of
opposition would be correct.
CARR SMITH: Right.
KERN: I feel like some of the questioning coming from Commissioner Van Pernis is very
leading and pushing very much in a certain direction that does not lead to fairness in my opinion.
Thank you.
CARR SMITH: Thank you,Mr. Kern. All right, any other questions? All right, Ms. Chalker,
you want to proceed with your testimony representing Kait Masters?
A. CHALKER: Yes. Yes, I have a written statement from Kait Masters.
CARR SMITH: Thank you. Just make—
A. CHALKER: "Aloha friends—"
CARR SMITH: —watch the timing. Go ahead.
A. CHALKER: Okay. "Aloha friends. My name is Kait Masters. I am the Community
Development Manager for Rising Tide Society, a network of small business owners supporting
each other in the spirit of community over competition. I am writing a statement in support of
Kate Hickey, one of our incredible chapter leaders who has been a selfless champion for small
business owners in the last three years that I have known her. I have seen firsthand how Kate
and Doug's business has grown over the years during Kate's involvement with Rising Tide and
the positive impact it has made on small business owners in the community as a result. Hosting
events at the farm has allowed meaningful relationships to flourish with other small business
owners in the area. From photographers to cake decorators there are on average 14 vendors
involved in the typical wedding according to the Wedding Wire. This creates a meaningful
ecosystem of referrals and relationships that help local small businesses thrive, and Kate and
Doug already have a supportive network of vendors they regularly work with who benefit from
the referrals and opportunities Sunshower provides them as an event space. The amazing thing
about Sunshower is that it's not a wedding venue that moonlights as a farm. They've built their
dream of a sustainable farm where the coffee, animals, and community are their priority.
Hosting events at their farm allows them to continue to live out their vision during a time when
small businesses and agriculture are suffering immensely. During a season of unprecedented
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EXHIBIT A
, r
hardship for small business owners this year, I have seen Kate step up and support local small
business owners to the best of her abilities from collaborative online markets to taking on a
bigger role in leading the Kona chapter of Rising Tide. Thank you for your time. Kait Masters."
CARR SMITH: Thank you very much, appreciate your time today,thank you.
A. CHALKER: Thank you.
CARR SMITH: All right. I'd like to confirm that we have Aesha Shapiro, Wei Fang,
Ally Brown,Lyla Mali, Donna Mali, Michael Bell, and Kelly Johnson. Can you - - -your
cameras, if you will,please, if you have—
LEY: I don't think Wei Fang is on.
CARR SMITH: Okay, so no Wei.
LEY: But the rest of this list should be here. Aesha might—let me text her.
CARR SMITH: Okay, so we'll proceed without Aesha or Wei.
LEY: She's available—
CARR SMITH: Oh, there, Aesha is on, I think. She's in the middle of my screen.
LEY: Okay,yeah, she's on, yeah.
CARR SMITH: So just not Wei.
LEY: Yeah.
CARR SMITH: Okay,very good. Folks, could you please show me your cameras and then raise
your right hands? And, do you swear or affirm to tell the truth before the Leeward Planning
Commission today?
TESTIFIERS: Yes (and nod).
CARR SMITH: Very good, thank you. All right. Aesha, you are up first,please, if you could
proceed with your testimony.
SHAPIRO: Yes, hi,thank you. My name is Aesha Shapiro. I am the owner of Aesha Rose
Event&Design .' And I also own the Ladies Artisan Market Networking Group for Women.
We are an event and design business, and so one of my biggest issues living her in Kona is
finding event space that's affordable. It's, it's one of the biggest challenges that we as event
planners, and anybody in the events,the music industry, faces. So I am here in full support of
Kate and Sunshower Farms with their permitting process.
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f't M
The wedding industry employs so many people, bakers, musicians, calligraphers, I mean I can go
on and on. I think we are all aware of how many people that weddings and events employ here
locally. And it's just really important that we have affordable venues. We as planners can't
afford to host events at all the fancy hotels that's just not really designed for kama`aina rates.
We also look for space to help out with nonprofits and fundraising efforts for local, you know,
organizations, and that's something that Kate has already been very willing to do with their
current situation is bring in a lot of these local groups that really need help with,you know,
waiving vendor fees and whatnot. And Kate has definitely committed to helping these
organizations as—if they get their permit approved, that they would be helping a lot of local
business that are nonprofits and whatnot. So I'm in full support of their permitting process. We
absolutely have a need for more venues. It's imperative that they do something about this here
for us.
CARR SMITH: Very good,thank you.
SHAPIRO: Thank you.
CARR SMITH: Any questions, Commissioners? (Pause) Thank you, appreciate your
testimony. All right, let's move on to Ally Brown. Allison Brown? There you are.
BROWN: Yes. Hello.
CARR SMITH: Hi.
BROWN: Hi. Thank you for allowing me to be here today on behalf of Kate and Doug Hickey.
I'm Ally Brown. I am the director of the Miss Kona Coffee Scholarship Program, and I'm also
an entrepreneur here in the community on accounting and events. I do understand the concerns
about the road use and sound disturbances; however, knowing that they, Sunshower Farms has
been operating for the last few years without complaints should not go unnoticed. This is a
testament to how Kate and Doug operate their venue. I've seen firsthand where they have
communicated the importance of being mindful of those around them, especially while on their
farm,but also when driving to or leaving the farm. I'm, as a community member that plans
events, I'm, operate, you know, a nonprofit. There are not enough venues here in Kona, let alone
affordable ones that are attempting to do things the right way. Growing up here in Kona and on
a small coffee and macadamia farm, I can definitely relate to needing to think outside of the box
to make sure that ends meet all while giving back to the community and being mindful of those
around you. As we've heard many testimony thus far, weddings and events can justify the- - -
they do employ a lot of people, and Kate and Doug go above and beyond- - - (indiscernible–
echo)—I hear an echo.
CARR SMITH: Yes. (The echo continued.)
BROWN: - - -wait.
CARR SMITH: That's interesting.
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EXHIBIT A
BROWN: Not sure what that was.
CARR SMITH: Yeah. If you could summarize, appreciate it. Thank you. Go ahead.
BROWN: You don't want me to just keep going?
CARR SMITH: We'll try and see if that continues or not. I don't know where your time is - - -
BROWN: - - -that, you know, as we've heard before, weddings and events not only do employ
a lot of people, but Kate and Doug are willing to go above and beyond to take care of not only
their couples but their vendors as well. Doug and Kate are not just caring business owners, but
they are generous and always willing to lend a hand to local businesses and nonprofits no matter
what they have going on in their lives. I had a last-minute need for chairs last, last year, and I
don't know what I would have done, if it weren't for Kate and Doug. And like I said,being a
part of the event industry, we need, we have, definitely have a need for more venues like
Sunshower Farms, especially ones that are trying to do things here on our community and take
care of our aina the right way. So I do hope that you consider approving this Special Permit for
them and for our community. Thank you very much for your time. Aloha.
CARR SMITH: Thank you, Ally. Any questions for Ms. Brown? (Pause) All right, thank you
very much for your testimony.
BROWN: Thank you.
CARR SMITH: Moving on to Lyla Mah.
L. MAH: Hi.
CARR SMITH: Hi Lyla. Hi, how are you?
L. MAH: Good, thank you—
CARR SMITH: All right, so you are going to provide your own testimony, and then you'll
provide additional testimony representing someone else. So we'll start with yours,please. Go
ahead.
L. MAH: Okay. Hi, my name is Lyla Mah, and I'm the owner of Lalamilo Floral Design. I've
worked with Kate and Doug for three years now. I'm in support of them getting the permit
because this permit will directly affect my business, as I am a florist at their venue. I am a native
Hawaiian, a mother of two children. I'm a single parent. So Kate has taken me on to her team
and allowed me to be a part of her team as a florist since the beginning. She allows me to still be
a farmer and a florist at the same time and a mother. With her, with the income that I have made
from her business, I have been able to support myself and my family, and I've also been able to
continue farming. So with that,you know,they've just been trying to find ways to make ends
meet, because as a farmer, I know how hard it is to pay our bills and farm and make sure that
everything is covered. And here they'are trying to be in the right and get all their permits done
40
EXHIBIT A
r ` !
and make sure that they are dotting all their i's and crossing all their t's. I've worked there for
three years, as I said, and we haven't had any complaints about any of the events that we have
put on. I drive up and down that road a couple times a week usually when we have events, and I
have never run into any problems with any of the other residents on the road. We all are
courteous to each other and we pull over on the side and we give each other right of way as
things are needed—I don't know what else to say. They support a lot of local businesses. It's
not just myself;there's other florists, other caterers, event coordinators, photographers, goes on
and on. And,you know, they have put into place a lot of—what do they call it—plans as far as
the road goes so that we are in compliance with everybody there and we are courteous, and we
would be sharing the road. Thank you.
CARR SMITH: Very good,thank youverymuch. Commissioners? Commissioner Van Pernis.
VAN PERNIS: Yes, Ms. Mah, Ms. Mah, you say you've been up and down there over three
years. You drive Mamalahoa to get there?
MAH: Yes. I live in Waimea, and I drive, I commute to come out there. So I drive—
VAN PERNIS: And if you've been up and down there three years, and on Mamalahoa,where is
the closest fire hydrant?
MAH: The closest fire hydrant? I'm not sure.
VAN PERNIS: Do you know whether there's any fire hydrants on the road?
MAH: I'm pretty sure that there are fire hydrants along Holualoa Drive,but I'm not sure as far
as Waiono Ranch Road.
CARR SMITH: Yeah,I wouldn't expect the testifier to - -- question. Mr. Kern---
KERN: - --it's quite challenging—
CARR SMITH: Zendo, could you turn your camera off maybe?
KERN: —with this kind of questioning—
CARR SMITH: I understand.
KERN: —quite, it's quite, quite, quite challenging,just doesn't seem right.
CARR SMITH: Thank you.
KERN: Thanks.
CARR SMITH: All right. Lyla, would you like to go ahead and give your testimony
representing Kiley Kelson?
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EXHIBIT A
L. MAH: Sure. Okay, so I have her testimony right here—
CARR SMITH: Just lookup so you see the timing that Tracie will show you. Thank you. Go
ahead.
L. MAH: Okay. "My name is Kiley Kelson, and I am writing this testimony to show my
overwhelming support for Kate Hickey, Sunshower Farms, and their venue expansion. A little
about me: I am a mother of two young daughters, a native Hawaiian, and a business owner. I
own a small lei making floral studio here in Kona, called Hakus By Ki. I rely heavily on the
wedding industry to keep my business afloat and to put food on the table. Sunshower Farms has
been an integral part of keeping my business alive and well. I am in full support of their decision
to expand, as the expansion will support the growth of my business and many other businesses
here on the island. Since COVID-19 things have drastically slowed down, and it has been a
struggle to make ends meet, which I know has been the same for about everyone else on island,
but I think especially for the wedding industry, since we really do depend so greatly on not just
tourism, but large gatherings in general. I believe a hundred percent that the expansion of
Sunshower Farms will help bring some money back into our local economy and bring back life
to the wedding industry here on the Big Island. The amount of beautiful venues in Kona that can
hold 100-plus people are slim to none. We are in dire need for more-- -
(At this time, around 12:05 p.in., there was cm internet connectivity issue in the area where the
WebEx host was located, which caused disruption to the YouTube live-streaming and recording
for about ten minutes. Chair Carr Smith called a recess when she was notified of the situation.
Ms. Ley contacted Mr. Michael Bell and Mses. Lyla Mali, Donna Mah and Kelly Johnson, whose
testimony had not been streamed or recorded, to request that they repeat their testimony.
Mr. Bell was not able to return to the hearing; however, he had submitted written testimony in
support of the application, which had been distributed to and reviewed by the commissioners and
was on file as a public record. Chair Carr Smith called the hearing back to order at 1:03 p.m.)
CARR SMITH: Let's call this meeting back to order. And if the testifiers could- - - cameras - -
-you can stay muted,please --- can you mute, please?
VITOUSEK: Yes, right.
CARR SMITH: So I see Brianne—is that how you say your name, Brianne?
LIMANI: Yeah, it's Brianne.
CARR SMITH: Okay,Brianne,thank you. And Matt should be here, Pam and Wendy. If I
could just see all your faces, please—and Matt. There's Wendy. Okay, if there's - - -testifiers
that are in the room right now, can you turn on your camera? Or speak up to me, in case I don't
see you, but you are there? Okay. Let's go with you four—
LEY: Nancy, Nancy-
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EXHIBIT A
i
CARR SMITH: Yes.
LEY: —this is Rachelle.
CARR SMITH: Yeah.
LEY: Can you still hang on one moment? I've got—
CARR
otCARR SMITH: Absolutely.
LEY: —trying to get YouTube back up.
CARR SMITH: Okay. Stand by, folks,thanks.
GREENE: I have a question.
CARR SMITH: Sure. Who's that?
GREENE: This is Debra Greene. I've been having a lot of trouble getting into the system.
Could you please tell me what agenda item you are on?
CARR SMITH: Sony,Debra,we are still on Agenda Item number 1.
GREENE: Okay,thank you.
CARR SMITH: You're welcome. J, are you on?
YOSHIMOTO: Yeah,I'm here. Can you hear me okay?
LEY: Okay, Nancy, you can go forward.
YOSHIMOTO: ---
CARR SMITH: -- -
KERN: You are muted,Nancy.
CARR SMITH: Oh, shoot, sorry. I was asking J if I need to do the testifiers that didn't get
recorded first or if we can go ahead and proceed with the testifiers we have in front of us.
YOSHIMOTO: Hi Nancy, yeah,we can take the testifiers that we have before us now - - -as
long as we go back and- - -testifiers that were not recorded.
CARR SMITH: All right, very good. Are you working on that,Rachelle?
LEY: Yes, yes.
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EXHIBIT A
1 . .. )
CARR SMITH: Okay,thank you so much. All right. All right, so we will proceed with you
four. Please raise your right hand. Wendy, please raise your right hand,thank you. Do you
swear or affirm to tell the truth before the Leeward Planning Commission? You nod.
TESTIFIERS: (No audible response—nod)
CARR SMITH: Thank you. All right. We want to be respectful of your testimony,but I just
ask if you are repeating things that we've already heard, maybe try to limit that a little bit. And
we will begin with Wendy,please. Go ahead, unmute yourself, and then your three minutes will
begin. Thank you.
MITCHELL: - - -
KERN: She may have turned off her video and not on the volume.
CARR SMITH: - --both of them are still off. Wendy, if you are there, can you turn on your
video, or at least on your, turn on your volume. You are still muted. There you go.
MITCHELL: Okay, thank you.
CARR SMITH: Go ahead.
MITCHELL: Okay. My name is Wendy Mitchell, and I live up on Waiono Meadows just below
the Hickey's property. My family has lived up here since 2005. We weren't aware that the
Hickeys had been operating a wedding venue business out of their home since 2017. We'd hear
voices and singing and music, and assume they were just social people who like to party. And
we never talked to them about it or complained when it did bother us; we were just,wanted to be
good neighbors.
I helped create the petition that hopefully you've all reviewed. I'm the person who sent it out to
all the homeowners known to us who access their property via Waiono Ranch Road. We felt it
important to notify those who would be directly impacted, should the Hickeys be granted the
special use permit. By our own unofficial and unconfirmed count, there appeared to be 31
parcels of land, the largest being Palani Ranch. Nearly every property owner contacted signed
the petition requesting the SUP [sic - SPP] be denied, and many added comments as well.
Thirty-six people all of whom have a legal easement to use Waiono Road signed it. I've come to
learn the Hickeys submitted numerous letters in favor of their SUP [sic - SPP],but it's important
to note none of them appear to be property owners on our road; most appear to be potential
vendors who would financially benefit from the lucrative parties.
It's crucial you understand the road is a substandard unmaintained dangerous single-lane farm
road. On several occasions most years Waiono Road up to my property, as well as the Hickey's,
becomes a danger to cross due to heavy flooding. During those times I've been forced to turn
around and wait till the raging subsides and is safe to cross. Many of us are greatly concerned a
potential lawsuit from inebriated partygoers using our road. I believe it's fair to say that
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EXHIBIT A
I
anybody who's driven up and down Waiono Road becomes well aware of its deficiencies and
hazards. I was involved in an accident on the road back in late February of this year. My car
was hit and damaged by a motorcycle operated by a 16-year old unlicensed, uninsured driver
who was packing another minor-aged passenger. They were speeding downhill around the very
dangerous curve in the road. Fortunately,they weren't seriously injured. But I know for a fact
there have been other accidents and many near misses on the road.
The rule relating to SUP [sic - SPP] has required that the desired use not adversely affect
surrounding properties. The Hickey's contention that they'll mitigate the noise from upwards of
125 partygoers by containing them inside a building and closing doors and windows is just not
realistic. Who will enforce those rules?
Other concerning adverse effects include concerns over light pollution,property values and
liability issues.
CARR SMITH: I'm sorry,your three minutes is up.
MITCHELL: Okay, thank you very much.
CARR SMITH: Questions from the commissioners for Ms. Mitchell? Commissioner Newberg.
NEWBERG: Thank you, Chair. And thank you, Ms. Mitchell, for being present. I know this
may be late, as we've already had one homeowner that has testified to my knowledge besides
Ms. Mitchell; I don't know if it would be proper to offer five minutes to those who actually live
on Waiono? That aside, Ms. Mitchell, did you mention that of the 16 properties involved on this
road, that all 16 signed your petition?
MITCHELL: I said we had 36 landowners signed the petition. We did not have necessarily
everybody's contact information and names of the parcels, so I don't know I was able to send it
out to everybody. Some, some people may have gotten it and not responded, or I may have had
information that was outdated, and that they never received it. But we did receive 36 signatures
on that petition of property owners who have a legal easement on Waiono Ranch Road.
NEWBERG: Thank you for clarifying.
MITCHELL: You're welcome.
CARR SMITH: Other questions? Commissioner Van Pernis.
VAN PERNIS: Ms. Mitchell, if there was to be liability or some problem arises on road, on
Waiono Road, who is liable for it? If you know.
MITCHELL: Okay, I would say we, as it's been pointed out there is no homeowner's
association, no road maintenance agreement,we are all individual targets, and I believe this is a
reason that a lot of property owners did not want to form an association, because then there
would be one target for road that we all know is inadequate and substandard.
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EXHIBIT A
VAN PERNIS: And if the hundreds, if among the hundreds of people coming to the wedding
venue, there was an injury on the road, on the way up or down the road, who is liable in your
experience?
MITCHELL: It's a private road, so I'm not sure—I know it's not a county road. I would say
they'd have to sue everybody, or else they, if that was a partygoer, I would imagine they sue the
Hickeys. I, I don't know, I think I just can't fully answer that question, I'm sorry.
VAN PERNIS: And as you've lived there long that you have,where is the closest fire hydrant or
the fire facility?
MITCHELL: I've never seen a fire hydrant up there, Commissioner. I—
VAN PERNIS: Have you seen any on Mamalahoa?
MITCHELL: You know,I'm not sure.
CARR SMITH: That's okay. -- -you are not expected to know exactly where the fire hydrants
are. You don't need to answer that.
MITCHELL: Okay,thank you.
CARR SMITH: Any other questions from the commissioners? Commissioner Vitousek.
VITOUSEK: Have you had ally discussions with the Hickeys about this?
MITCHELL: No, we have not since this all came to light. They did pass around to many of the
property owners I'm told—I know we received one, and the Parkers, and the Grossmans, and the
Patersons, and others ---that Kate or somebody delivered to homes with some -- - in there and
letters introducing their,their desire to have this wedding venue business, and for many of the
potential vendors - - - and we were asked to contact them, if we have any questions or
discussions. And, frankly, we didn't. We were part of the CPR,the 80-acre that had been
CPR'd to four parcels, and the other CPR unit owners and ourselves got together to discuss it and
see how we felt about this. So we never did. It seems so blown out to us we were just amazed
and appalled that this was being introduced, and we didn't even know there've been their
wedding venue business. I don't go out late at night, so I really wouldn't encounter all that
traffic to know what happens at 10:00 p.m. when all the cars go down the hill in a snap. A friend
of mine, my next-door neighbor,who told me she had encountered it one time and had to pull
over and there were 18 vehicles she had to wait till they went down the road, as she was pulled
over on one of the unmaintained shoulders - - - shoulder, or grassy area, 18 cars.
VITOUSEK: Right,would you guys,you know, be willing to sit down with them in some
capacity and, and try to work out a way of accommodating everybody's interests?
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EXHIBIT A
MITCHELL: I, I believe it wouldn't just be good enough for myself and my family to do that; I
think in light of the fact that 36 property owners all signed the petition, that's a lot of people who
feel very strongly about it, and all agree the road just cannot accept that sort of traffic. It's just,
if you've ever been up there,you would know exactly what we are all talking about. It's so
apparent.
VITOUSEK: Thank you.
CARR SMITH: Yeah, Wendy, I was curious myself regarding all the people that signed your
petition. Aren't those folks interested in improving the road? Is there any reason why you
haven't, you folks haven't come to a mutual road maintenance agreement?
MITCHELL: I'd say financially that takes a lot of money, and some people just aren't willing to
put in the money, and other people don't want to absorb what would be their share of a road, of
the road maintenance. Farmer seemed to be okay with it.
CARR SMITH: And my second question was, are you aware of any other commercial ventures
going on up Waiono Road?
MITCHELL: No, I'm not. I'm not aware of any others.
CARR SMITH: Okay,thank you. Are there any other questions? (Pause) Thank you very
much—
MITCHELL: Thank you.
CARR SMITH: —testimony and being here today.
MITCHELL: Thank you.
CARR SMITH: All right, let's move on to Pamela Parker. Are you- - -
PARKER: - -
CARR SMITH: Hi.
PARKER: Hi.
CARR SMITH: Nice to see you- - -please go ahead with your testimony,Pam.
PARKER: - - -
CARR SMITH: Go ahead, Pam.
PARKER: Yes. Okay. I'm Pam Parker, and I am a member of the Greener Pastures
partnership. I own 20 acres on the north side of—oh, okay, can you hear me? I- - -
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EXHIBIT A
1
CARR SMITH: Yes, I think so. Go ahead, go ahead and try. You may cut out a little bit,but
let's, let's give it a shot. Go ahead.
PARKER: - - - okay, I, I'm a member of the Greener Pastures partners. I have 20 acres on the
north side of Doug and Kate. We share a driveway. Is this working?
CARR SMITH: Yes, go ahead.
PARKER: Okay,yeah - --
CARR SMITH: It's working from, from what I'm seeing, so please go ahead.
PARKER: Okay, can,I've, whatever I've said is replaying. Can you hear me now?
CARR SMITH: I can,yes, I can hear you now, and I heard you before. You might try turning
off your camera, and let's see if that helps your bandwidth at all. (Ms. Jackson raised her hand)
Maija,what do you know?
JACKSON: It's possible if Pam is watching YouTube at the same time, she's hearing an echo or
a repeat. So she might want to stop her YouTube.
CARR SMITH: Are you watching the YouTube?
PARKER: I,I'm, it was, it may have been in the back—
CARR SMITH: Okay, if you can find—
PARKER: - - -
CARR SMITH: If you can find that and close it,please.
PARKER: Yeah, okay, it's closed. Can—
CARR SMITH: Okay.
PARKER: We are good?
CARR SMITH: Yeah. Go ahead.
PARKER: No - --
CARR SMITH: Pam, we can hear you, so go ahead. Tracie,you can start her now. Go ahead,
Pam. Please speak.
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EXHIBIT A
PARKER: Okay, so—sorry,there was an echo—again, I am a member,I'm Pam Parker, a
member of the Greener Pastures partners. I'm on the north side of the Hickeys. We share a
driveway. I submitted my written testimony that does highlight the fact that I've been in a
wedding business, I love weddings,I was a wedding photographer; I would not be one to
complain about weddings. But this special use request is a whole different ballgame. We are
talking major traffic on our substandard road. All the vendors, I mean my heart breaks for all of
the small businesses right now because of COVID and other reasons. But this,this I believe
would be disastrous to the community of Mauka HOlualoa, mainly because of the road. I don't
need to extrapolate more on that; I think it's pretty clear for those who are looking at that piece
of it. We've heard the weddings. I knew they were weddings. My primary residence is not in
Waiono, so I didn't feel I would complain about something like that. However, once again, this,
this venue proposal is completely different, and I think that it would be a hazard to the
community. For the people who traverse up there for weddings, it's been a hazard. Fortunately,
nobody's been hurt. There are accidents on those roads, on that road, I should say. And,
anyway, I strongly oppose this,this request. I think it's dangerous, and I can't imagine the
Leeward Planning Commission approving it.
CARR SMITH: Very good,thank you, Pam. Any questions from Commissioners for
Ms. Parker? (Pause) Very good, thank you. Thank you for your testimony.
PARKER: Thank you.
CARR SMITH: All right. Matt Chalker? You are next.
M. CHALKER: Hello?
CARR SMITH: Hi.
M. CHALKER: Hi, okay, yeah, we are good—
CARR SMITH: Thank you for your patience.
M. CHALKER: Of course.
CARR SMITH: -- -proceed with your testimony,please.
M. CHALKER: Lovely. So I support strongly Doug and Kate's application for all of the
reasons that have been gone over in great detail up to this point. But I'm going to take a giant
step back, and I'm going to, going to have a different point of view on things. I've been
incredibly disappointed listening to this set of testimonies because, obviously, it's very important
for the business community, for diversity, for expanding things here on the island, but it appears
to me, as a first, this is my first instance of becoming introduced to the entire Planning
Commission process, it seems obvious to me that the entire Planning Commission is dead set
against doing this initially, and there have been incredibly leading questions that have been
attacking the testifiers that are in support of the project and are trying to support and actively
lead on people who are opposed to the project. So, so I wish that we could be more neutral in it.
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1 - j
And to take a further step back, I think there is always a reason to say no. We can always come
up with reasons to not do something. And Nimbyism in general,not-in-my-backyard, it's a
process of saying,hey, I don't want this new thing being built, is destroying this country. I really
genuinely believe it. It is making the rich richer and it is making the poor struggle harder. It is a
disaster in San Francisco Bay Area, and it is a disaster here right now. This is a group of people
that are trying to expand out the business community or trying to bring people into the island,
and we are sitting here nitpicking over the fire hydrants. They don't need to worry about the fire
hydrants; they have a fire suppression system built in on the farm. We are trying to find a reason
to say no when we should be trying to find a reason to say yes. And I,I can't think of a better
group of people to try and expand out the aloha and the love for the island than Doug and Kate
who are really trying to work hard and build a farm, as compared to many of their neighbors who
are generally rich retirees who don't actually use their land for agricultural purposes. So if we
are going to sit here and attack Doug and Kate for trying to expand their business and trying to
use the land to beableto do new things, we should also be questioning the motives of the people
who don't use the land,who are just sitting on it,because they have money. And I think that
that's really, really hurtful to the small business owners who are trying to make it work. But if
we are just going to say no to everything, why, why even have a planning commission? Why not
just have a, you know, executioner squad that's going to shut off everything new and just leave it
be the way it always has been. So I support it. I know I'm spinning a little bit of hot fire. And
that's it. If anyone have any questions, I'll be happy to answer.
CARR SMITH: Thank you, Matt. Commissioners, do you have any questions for Mr. Chalker?
I see none, so thank you very much for your testimony, Mr. Chalker. All right, Brianne, you are
up next. .Brianne Limani.
LIMANI: Hi.
CARR SMITH: You are going to testify on behalf of yourself to begin with, and then you are
going to represent two other people after that, correct?
LIMANI: Yeah.
CARR SMITH: Okay,you can go ahead with your testimony,please.
LIMANI: Okay. So I'm Brianne. I'm a local business owner, entrepreneur. I'm speaking in
support of Kate and Doug because they've done so much to support all of us. And as was
mentioned earlier,Kate helps host monthly meetings for small business owners, and she's helped
my business in so many ways both in and out of these meetings. And I know that she's also
helped many others building their businesses also. She really wants to see people in her
community succeed, and she goes the extra mile to help make that happen. So, for example,
when COVID came, Kate and Doug offered all these jobs at the farm, if anybody needed extra
money. Also, anytime my business is slow, she gives me the opportunity to work some shift at
the weddings,which I've done several times. I can attest to how special they are for everybody
who attends. So these are some examples, but it's evident how much they actually care about
their community. And I believe their community involvement is an extremely valuable asset for
all of us. And I can honestly say I wouldn't be where I am today without all of her help. So you
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can see by the sheer number of testifiers how many people respect Kate and Doug, and I applaud
them for going about this the hard,very hard,but legal way. I think it's setting example for all
of that have been on this call. And I hope that you don't punish them for trying to do the right
thing. So therefore, I ask you support them, like she has, like they have supported all of us.
From the testimonies here, you see how many people are really relying on this venue. You've
heard-- - depend on their business to feed their families. So to me it seems pretty crushing that
something as trivial as traffic or road inconvenience could prevent it from coming to fruition.
I've heard a lot of these and it's kind of almost infuriating to hear some of the neighbors; I can
understand that it'll increase traffic, it might be a bit of inconvenience. But I know how
respectful Kate and Doug are about this entire process, so I know they would do everything in
their power to make this as an easiest transition as possible. So I'm in full support of them, and
really hope to see it work out.
CARR SMITH: Very good,thank you. Are there any questions for Brianne, Commissioners?
Seeing none, could you please go ahead with your testimony representing Aranda Gillum?
LIMANI: All right, so, this is for Aranda: "Aloha, my name is Aranda Gillum, and I was an
employee of the Sunshower's for the last year before recently leaving to pursue a career in
nursing. My job at Sunshower was primarily animal care, but I also worked as staff at a number
of the events and weddings. I am in full support of this new venue and was hoping to continue to
work events periodically to help pay my way through school. Doug and Kate are good
community members and farmers who deserve the commission's help. I have seen examples of
this firsthand when they have taken in stray and needy farm animals with nowhere else to go.
And despite the animals not being a profitable part of their business, they pay for feed and their
health expenses. When the volcano was erupting, Doug and Kate took an entire herd of sheep
from another fanner in Puna because ash had covered their pasture. That is just one example of
many of how they are active and essential farmers in the community. I feel proud to be working
weddings with so much respect for the island. Being a farmer,you are always looking for more
avenues to make money because it is so hard to make ends meet. This commission should be
doing everything in its power to help farmers like Kate and Doug and should approve their
permit. Thank you for your consideration."
CARR SMITH: Thank you very much. Now you can proceed with your testimony representing
Madeline Short and Malia Marks.
LIMANI: All right. "Aloha. Our names are Madeline Short and Malia Marks, and we are
stylists at Beauty Lux Salon in Kona. We both have been working in the wedding industry for
decades and can tell you from experience how hard we have been hit by the COVID pandemic.
An entire year of weddings have been postponed and cancelled and all vendors, ourselves
included, have felt the financial impacts of that loss. Venues like Sunshower Farms are essential
to reviving our industry and providing jobs for many. Furthermore, Sunshower is unlike any
other venue on our island. Unlike the hotels,they are so careful to support local businesses
through their vendor recommendations, which should be apparent based on this outpouring of
support. Please support them like they have supported so many of us. We read in the paper this
morning that the Planning Department gave this permit a negative recommendation, and we were
shocked. Businesses like Sunshower who are trying their best to follow the rules and contribute
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to our local community should receive the county's help as much as possible. The county could
surely find solutions to any issues with Sunshower's application, if they would just try. This is
too important to so many of us to tie it up in bureaucracy until Sunshower gives up or runs out of
money. Please do the right thing for our island and approve this permit. Mahalo."
CARR SMITH: Thank you very much. Thank you for all that testimony, appreciate your time.
LIMANI: Thank you.
CARR SMITH: All right. Rachelle, do we have any of the other folks before we go back to
Lyla? Do we have Leilani, Jamie, Johan or Kris?
LEY: I don't think so—I'm trying to locate them now.
CARR SMITH: Okay. All right, so we will go back to Lyla right now. Hi, Lyla, again.
L. MAH: Hi. I'm, am I just reading Kiley's statement?
CARR SMITH: If, I think,I don't know exactly where it dropped off,whether it was yours or
when you were reading Kiley's, so—
L. MAH: I'll just—
LEY: We've got hers,we do, got Lyla's.
CARR SMITH: You did get Lyla's, okay.
LEY: Yeah.
CARR SMITH: All right, then go ahead and read the testimony from your friend, please. And
thank you for being back here - - -
L. MAH: - - -
CARR SMITH: - - - already sworn in, so -- - go ahead.
L. MAH: "Aloha kakou. My name is Kiley Kelson, and I am writing this testimony to show my
overwhelming support for Kate Hickey, Sunshower Farms, and their venue expansion. A little about
me: I am a mother of two young daughters, a native Hawaiian, and a business owner. I own a small
lei making floral studio here in Kona, called Hakus By Ki. I rely heavily on the wedding industry to
keep myself, keep my business afloat and to put food on the table. Sunshower Farms has been an
integral part of keeping my business alive and well. And I am in full support of their decision to
expand, as the expansion will support growth in my business and many other businesses here on
island. Since COVID things have drastically slowed down, and it has been a struggle to make ends
meet,which I know has been the same for just about everyone else on island,but I think especially
for the wedding industry, since we really do depend so greatly not on tourism,but large gatherings in
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I 1 ! !
general. I believe a hundred percent that the expansion of Sunshower Farms will help bring some
money back into our local economy and bring life back to the wedding industry here on the Big
Island. The amount of beautiful venues in Kona that can hold 100-plus people are slim to none. We
are in dire need for more, and Sunshower Farms recognizes the need and is trying to provide this to
our community the right way by getting this permit. Lastly, I have driven up to Sunshower Farms
many times,both as a vendor and a guest of an event, and I have never had any issues with making it
up or down the narrow road. And I've always gotten a smile and a shaka from neighbors as we pass
each other going up and down. I honestly don't see any reasons to withhold granting Sunshower
Farms its permit. Kate and Doug are great people trying to breathe life into our Kona community,by
providing a service that is much needed. My family and my business are counting on this permit
approval. Please take that into consideration. Mahalo piha. Kiley Kelson."
CARR SMITH: Thank you,Lyla.
L. MAH: And then I have my mom - --
D. MAH: - - -from the farm.
CARR SMITH: Good,there you are. All right. Donna Mah, if you could please give us your
testimony.
D. MAH: Okay, I just wanted to say, you know,I am, I'm the co-owner of J&D Farm. I've been
farming in Waimea for 37 years. And it's not easy. For them to think of diversifying and having
this venue to help support their farm is awesome, because their farm is exactly that; they, they
mostly - - -farm. And I've known them since they first started, and they struggled. They came to
the Keauhou Farriers Market, and they hung in there. And,you know, I think there is a lot of
vendors that are counting on them making it through this process, and it's, I know that they'll
accommodate whatever, whatever needs need to be met. That's the difference, and they've been
accommodating. So, honestly, I don't see any real problem in this, and I've seen a lot of illegal
activities on Ag land. And, you know,my question to those that are against this is, how many of
them actually farm? How many of them farm fulltime? Because it's not easy, and you have to be,
you have to be progressive and adapt to the needs of what your farm needs. And I think this is one
of the ways. So, yeah, so, you know,thank you for your time, and I'm glad I could make it back in
time to testify, it's been a circus today, but, mahalo.
CARR SMITH: Thank you very much, Donna, appreciate it. Thank you both. Thank you for
coming back. All right, so I don't think Michael Bell or Kelly Johnson are back. Is that correct,
Rachelle?
JOHNSON: I'm back. Kelly—
CARR SMITH: Oh, Kelly is here.
JOHNSON: —Johnson is back.
CARR SMITH: There you are. Thank you, Kelly, for coming back, appreciate it-
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JOHNSON: You're welcome.
CARR SMITH: Yeah, sorry about- - -
•
JOHNSON: Yeah, I ditched my notes, but if I can add a little bit.
CARR SMITH: Sure, sure. Sorry that you,too,just didn't,it went off for a while, so we just need
you to give us an idea of what your position is here. Go ahead.
JOHNSON: Okay. We have been farming in Kona for more than 30 years now. We've always
played by the rules of the road. I think the biggest concern is the, the vibe of the neighborhood,
essentially. It's a very small road; it's essentially a shared driveway. That Waiono Ranch Road is a
private driveway that doesn't have any kind of a maintenance agreement on it, and is a shared
resource with all of the neighbors in Waiono Meadows. It's only 10 feet wide at certain parts. All
of the residents know the quirks of the road, the various blind spots, narrow corridors. To add 250
automobiles or trucks every single week, in addition to all the support services that a wedding venue
of that magnitude may have,may need, is just, it's, it's an incredible amount of traffic, you know,
consumer traffic that's going into a place that's zoned strictly for agricultural use. The fact that
other people do illegal operations on agricultural land has nothing to do with this whatsoever. I
mean this is, this is about setting a precedent; if you allow this to go forward, that means that every,
every farm up there would be able to have a wedding venue or a circus or any other kind of, of retail
activity, and that's not what it was zoned for. There is a wedding venue right across the street. At
the bottom of our farm is the Mamalahoa Highway; every single car that goes up that road passes our
farm. Right across the road is a beautiful wedding venue,the Holualoa Inn. I've been there,I've
seen it myself. I don't see any lack of ability. I'm not trying to deprive anyone of their economic
opportunities; I'm simply saying that this is,this is specified an agricultural community, and I'd like
to see it maintained that way. If,I, as a property owner, I really am concerned about the safety
issues, the owner's liability issues. If a wreck happens on that road,we don't even know whose
liability it is. When the road gets potholes and gets washed out, the residents have to come to the
rescue and fill the potholes. It's not like the county does that for us. I don't even know if
emergency services can get to the top of that hill. I just don't think it's an appropriate venue for a
commercial operation of that magnitude. Thank you very much for your reconsideration. And I'm
genuinely grateful that you are listening to a wide range of opinions on the matter,but I just don't
think you can sanction that kind of activity.
CARR SMITH: Thank you very much,Kelly, appreciate your coming back and joining-- -
JOHNSON: Thanks for inviting me—
CARR SMITH: Yeah,thank you.
JOHNSON: —not as eloquent but, Chairwoman.
CARR SMITH: Mr. Newberg. •
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A
NEWBERG: Just quickly. I think Mr. Vitousek had an interesting and poignant question, and
maybe we can come back to all the homeowners that may not be still present after testifying to just
ask and see as a matter of conversation if they are willing to sit down and speak with the Hickeys
regarding this matter. Thank you.
CARR SMITH: Did you want to respond,Kelly?
JOHNSON: I'm happy to sit down and speak with anyone.
CARR SMITH: Okay.
JOHNSON: Open dialogue is always the best course of action.
CARR SMITH: Sure. All right, thank you very much. I keep losing you,Mr. Vitousek. Hi,
Pamela, do you mind dropping off the call,please, so that we have more room for other windows?
You just have to close the red circle with the X in it. If you can leave the call, Pamela Parker,
please. Thank you. All right. So I will just make note of the one of their testimonies that may not
been recorded was Michael Bell who was in favor of the Special Permit. I think that catches us up to
date. And, Amber Haley, are you back with us?
A. HALEY: Yes, I'm here.
CARR SMITH: Hi Amber.
A. HALEY: HL
CARR SMITH: I swore you in earlier. You still swear to tell the truth before the Leeward Planning
Commission?
A. HALEY: I do, I will tell the truth.
CARR SMITH: Okay,very good. I know that you have written testimony that you are going to
read from several people—
A. HALEY: Yes.
CARR SMITH: —so I just ask you to be as brief as you can,just with consideration of where we
are at this point. So I believe you are going to begin with Aly Dove.
A. HALEY: I'm actually beginning with Kris Adair, but I can switch the order that Rachelle gave
me, if that's what you want.
CARR SMITH: Oh,you are doing Kris Adair? Oh, I didn't know that. Okay. Go ahead.
A. HALEY: Okay. "Aloha. My name is Kris Adair, and I am a local coffee.farmer in HOlualoa. It
is so hard to make it as a farmer during the best of times, much less now with the pandemic. The
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commission should not limit the ways in which farmers are able to support themselves unless it
harms the land or the community, of which this application does neither. Sunshower farms is a
model for sustainable agriculture. Sustainable farming is not profitable, but they are supporting their
mission through a second income stream, which is something that this commission should
wholeheartedly support. The reason we have a planning commission and permit hearings in the first
place is so that a body of local community members can understand all facets of a request before
making a decision. I sincerely hope that you will take my testimony, and all of this community
testimony to heart and vote to approve Sunshower Farms' application. Their farm is a community
treasure and losing it would be a loss for us all. In a year with so many losses, please do not face us
with another one. Mahalo for your time."
CARR SMITH: Thank you. Go ahead with Aly Dove.
A. HALEY: Okay. Aly Dove: "Aloha, Hawai`i County Planning Commission. My name is
Aly Dove, and my business is Aly Dove Photography LLC based in Kona, Hawaii. I support
Sunshower Farms LLC's application for a special use permit for a wedding venue because it attracts
clients for local small businesses like mine. As a former employee at Sunshower Farms, I gained
experience in the wedding industry and learned what it takes to run a small business in Hawaii as an
assistant coordinator for Kate Hickey. I was then able to start my own business photographing small
weddings here on the island. Sunshower Farms not only helps bring clients to local businesses like
mine, but Kate and the Sunshower team truly want other local businesses to succeed. Having
worked with Kate, I've seen her go above and beyond to mentor other small business owners, as she
prioritizes the hiring of local vendors. From the florists to the caterers, the musicians, and the
officiants, Sunshower Farms supports local farms and small business owners here on the island. In
doing so, they provide their clients a holistic experience uniquely tailored to their couples while
helping them experience the aloha spirit here in Hawai`i. I also support Sunshower Farms' venue
because it attracts both local and destination wedding clients. Most of my clients are interested in a
venue where they can have a smaller, more intimate wedding with family and friends, rather than a
large wedding at a resort. Sunshower Farms is a prefect venue for these clients, and they can fit a
variety of budgets for couples looking to get married in Hawai`i. They are also using sustainable
practices in both their farming and event planning,which is an important value to many of my
clients. Kate and the Sunshower team truly care for their clients, as well as the local vendors they
host at their venue. I fully support their application for a special use permit."
CARR SMITH: Very good, thank you. Now your testimony for Ann Ferguson.
A. HALEY: All right. Ann Ferguson: "Aloha,Hawai`i County Planning Commission. My name is
Ann Ferguson, and my business is Ann Ferguson Photography LLC based in Waikoloa, Hawai`i. I
have been a wedding photographer on the Big Island for the past four years. I support Sunshower
Farms' application for a special use permit. I think they provide a valuable and beautiful space for
both destination and local weddings on the island. Wedding venues are an important part of my
business as a wedding and elopement photographer. Wedding location is a major decision factor for
weddings and events. Sunshower Farms provides an amazing location for weddings in Kona,
especially for couples looking for wedding venues beyond the hotels and beachfront homes. They
have hosted many weddings s with ravingsupporting su orting their impeccable service. More
importantly, more wedding venues or increased wedding and event capacity for venues on the Big
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Island translate to more revenue for many vendors who are currently facing unprecedented financial
struggles. Sunshower Farms also offers an affordable wedding venue on the island,particularly for
local weddings. With the widespread financial effects of COVID-19, local couples need more
venues that can meet their needs going forward. Lastly, Sunshower Farms values sustainability. I
am so excited that the proposed new venue is designed to be carbon neutral. That combined with
their other sustainability initiative are so important for our island now more than ever. This
commission should be doing everything they can to support and protect businesses on the island who
are voluntarily undertaking sustainability initiatives. For all these reasons, I fully support the special
use permit."
CARR SMITH: Very good,thank you. I believe you will now read the testimony of Karlie Austria.
A. HALEY: Karlie Austria: "My name is Karlie Austria, and I am a local resident and small
business owner. I support Sunshower Farms special use permit for a wedding venue. As a business
owner in the wedding industry, first as a creative assistant and now as a photographer,I've
experienced firsthand all the jobs a wedding venue creates for our local economy, as well as the
money it brings into the state and county. As we've quickly learned from COVID-19, it's extremely
important to stimulate our local economy, and a huge contributor to our local economy is small
business. Sunshower Farms provides work to many farm employees, as well as other small business
owners, such as freelance photographers like myself, hair and makeup artists, florists,bakers,
caterers, officiants, musicians, and on and on and on. Doug and Kate are amazing community
members who should be supported by this commission. Please do the right thing and give them a
permit to continue contributing to our island economy and our wedding community for years to
come. Mahalo,Karlie Austria."
CARR SMITH: Thank you. Next is the testimony of Sarah Gehman.
A. HALEY: Sarah Gehman: "My name is Sarah Gehman, and I'm the owner of Sarah Gehman
Photography. I have photographed a number of- - -I love it there. I cannot imagine not having
Sunshower as an option for weddings in the future. It would be a huge loss to our community.
Because of our limited amount of wedding venues on the Big Island, I love being able to confidently
recommend such a beautiful, unique coffee farm venue to my clients. It's intimate, unique, and
gives visitors a chance to see another side of what our great State of Hawaii has to offer. And
Sunshower Farms and all of their staff do a beautiful, respectful job at giving that experience to their
clients. Plus,their prices are actually affordable and reasonable for couples coming from all over
and for local couples,too. Affordability is one of the missions of their business, which I probably do
not need to tell you is something that is not very unique to the wedding industry, something that is
very unique to the wedding industry. I love working with Kate for so many reasons. She cares so
much for the local vendor community and is thinking of others so often. When I moved to the island
two years ago, she welcomed me, she did not withhold knowledge, she showed kindness, gave me
fruit from her farm whenever I went to visit, and the list goes on. She thinks local. She acts local.
Her impact is local. Doug and Kate are respectful to the land of Hawai`i. They care for their land,
for their animals, for their people. I've met and worked with their employees;they are happy,they
are happy, supported and enjoy their jobs. Doug and Kate truly do care for their people and their
local community, and it starts right there on their farm and the aloha flows out. Please lend an ear to
all of the stories and all of the testimonies today about all the good that comes from Sunshower
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Farms. Our highest hopes and prayers are that it would remain open for weddings, and that it would
continue to be a farm that brings business, blessings and aloha to the Big Island community. God
bless you, and thank you for your time."
CARR SMITH: Thank you. Next would be the testimony of Kristen Bradish.
A. HALEY: "Aloha. My name is Kristen Bradish, and I am a local resident. I worked for
Sunshower Farms in 2016 doing farm work, mostly vegetable gardening and animal care. During
my time there, Kate and Doug were struggling to make ends meet. The year I worked for them, I
think they had four or five different agricultural businesses going on at once, from farmers markets
to large-scale vegetable production to microgreens to coffee, and it was still a struggle. I was
present for their first event ever, a farm-to-table dinner that a local chef hosted at the farm. And
even from that first event we all knew that Sunshower was a special venue. Ever since then,I have
dreamt of one day owning my own, having my own wedding at Sunshower. They truly offer
something unique to our community both setting and through their sustainability efforts. I have
always been a little wary of weddings because they are so expensive and often so wasteful for just
one party. But Sunshower's events are different; their commitment to affordability for kama`aina,
creating as little waste as possible, and carbon neutrality are what I want for my wedding. Really,
it's what I want for our island, and what we should be encouraging in all of our local businesses.
Now, I understand that some of the neighboring properties are in opposition to this project, and I do
understand their worry. They don't want any changes near their homes and they do not want any
more trafficon their road. But, quite frankly, I feel like the good of this project far outweighs these
potential impacts. And these potential impacts are overblown at best or just complete fabrications at
worst. For the last three years, Sunshower has been operating as a venue, and there has never been a
complaint before. Their suggestion to limit the traffic to 20 vehicles per event and a max of 100
events per year is, at its maximum, only an extra 2,000 cars over an entire year. Finally, it should
not be lost on you that Sunshower could have just continued to violate their zoning indefinitely, and
they made the right choice voluntarily and without prompt. I urge you to strongly take it into
consideration that the impact of denying this application would be an encouragement to other farms
to remain in violation of their zoning, rather than just come into compliance. There are many
Ag-zoned properties on this island that violate their zoning in this same way, and denying an
applicant who is trying to go about everything legally would only create an incentive to other farms
to not be transparent and to run under-the-table for-profit venues on agricultural property. Mahalo
for your consideration."
CARR SMITH: Thank you. Sorry, was that Kristen or Becky?
A. HALEY: The last one is Kristen.
CARR SMITH: Okay. All right, so the next testimony is from Becky Ringler?
A. HALEY: Yes. Becky Ringler: "I have known of Kate Hickey and Sunshower Farms in a
professional capacity for several years, getting to know her and her work and her mission well
through a professional organization we belong to together. What Kate and her husband, Doug, do
for the larger community, and specifically for the wedding community, are so important, and I hope
you will take the following into consideration today: I have owned and operated a beach wedding
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business here in Kona for more than five and a half years now, and although I primarily plan and
officiate weddings down at the beach, I do help couples plan and coordinate intimate weddings up
and down the coast. And I can tell you from experience there are almost no wedding venues set up
for small - --and other than private rental homes or one or two restaurants at the beach,there are
only a handful of venues, many of whom are operating in violation of their zoning,that serve smaller
parties that are not right at the beach. Sunshower Farms not only fills that small venue hole,but it
also provides an affordable and beautiful option for couples, both local and from off-island. The
kind of venue they provide is something that is desperately needed here, even more so now that
COVID-19 has changed the landscape of how weddings will be in the foreseeable future, offering
the ability for couples to have a smaller wedding,but still get the benefits of an actual wedding
venue. On top of providing a venue for couples, Sunshower Farms is also a supporter of the local
economy. They employ permanent local employees, as well as hire a number of free-lancers in the
wedding community,many of whom I work with on a regular basis, photographers, other officiants,
planners, caterers, and they as a farm have gone above and beyond to try to keep their workers
employed throughout this COVID-19 crisis, even offering part time farm jobs to those of us who are
wedding vendors and are out of work. Speaking of the farm,which is located in an Ag zone, is
unlike some of the other neighbors who are in opposition to this permit, an actual working farm, and
that is their primary function. And as farmers, they do need other streams of income to be able to
support themselves. Offering weddings is a supplement to their farm; it just provides extra income
while also filling a glaring gap in the venue market here in Kona. On top of all of this,both Kate
and Doug are spectacular human beings, always willing to jump in and support their local
community. It's time we support them as well. So I urge you to consider today that Kate,Doug, and
Sunshower Farms are critical to the health of both the wedding and farming community and
economy. And to approve their permit will essentially, to not approve it will essentially be
punishing them for choosing to voluntarily do the right thing and apply to becomes a legal venue,
when there has not been a single complaint filed over the three years they have been doing
weddings. That's shameful. Please do the right thing and support this community-minded couple by
allowing their venue to remain a part of our community. By doing so, you are helping the entire
industry, as well as helping those that bring light and health into-the larger Kona community. Thank
you for your time."
CARR SMITH: Thank you, Amber. All right,the next testimony would be from Karen Loudon.
A. HALEY: "My name is Karen Loudon,-and my business is Karen Loudon Photography, based in
Kailua-Kona, Hawai`i. I've lived on the Big Island of Hawaii for 16 years, and I started my small
photography business 10 years ago. I support Sunshower Farms' special use permit because
Sunshower Farms has helped me to support my business for the past three years. Sunshower Farms
does not collect compensation or commissions from me when I work there like the big chain resorts
do. And I pay business tax on my income received from working at Sunshower Farms. The farm
contributes to the overall economy on the island,particularly to the Kona area and the town of
Holualoa, and offers an alternative type of wedding venue to the big beach resorts on the coast.
COVID has hurt so many businesses, including mine, and I think the greatest priority for our county
should be supporting any business that's going to help us recover. I hear all this talk nowadays
about supporting local business; well,this is a prime example of a farm and a local wedding business
that is surviving even though they compete with big resort chains. Let's support it. Sunshower
Farm is exactly the type of farm that should be on agricultural land and deserves the county's
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support because it's an actual working farm that is dedicated to agriculture where the coffee and
animals are essential. Some of the neighbors who are opposing this permit are living on land that is
also zoned as agricultural land and enjoying all of the benefits of that, including subsidized property
taxes; however, they are not farming themselves. Why don't the rules apply to those entitled
neighbors? They should be the one having to defend themselves here. If those in opposition to this
permit were actually farming,they might realize just how hard it is to do, and they would empathize
a little more with other farmers trying to diversify their income streams however possible, as
Sunshower Farms does with weddings. Supporting farmers in Hawai`i needs supporting
diversification in the farming industry, it's as simple as that. Kate and Doug are valuable
contributors to community. They volunteer time andtheir knowledge in many ways. Kate has been
doing that with a working discussion group every month that supports local entrepreneurs. They
have also encouraged local middle schools and high school kids to visit and learn about the coffee
farming process, including seasonality, growth patterns, ripening, harvesting,pruning, orchard
maintenance and pests, including the opportunity to meet and feed the weed control,which is their
herd of sheep and goats. It's clear how much Kate and Doug love and value their land and this
island, and they are keeping the Holualoa coffee farm industry alive while sharing it with the
community and with the guests. Please consider expediting the Special Permit process for
Sunshower Farms and allow them to host weddings and share their wonderful slice of old Hawai`i
history with many more guests. Thank you for your consideration."
CARR SMITH: Thank you,Amber. Next would be testimony on behalf of Dawn Eicher?
A. HALEY: "My name is Dawn Eicher, and Amber Haley is reading my testimony in support of
Doug and Kate's special use permit. I wish I could have made it in person to the hearing today, but I
am currently homeschooling my kids, and I want to make sure my testimony is heard by the
commission in support of this project because it is so very important to me. First of all, a little about
me. I am a wedding photographer based in Kailua-Kona, and a busy one at that. I photographed 116
weddings last year, so I'm heavily involved in the wedding industry here in Kona. I can speak from
experience that wedding venues here in Kona are in short supply, especially affordable ones.
Sunshower Farms is the perfect wedding venue for many reasons. First of all, it offers the unique
experience of being married on a coffee farm, and there are not very many venues that offer lush
surroundings and that immersive experience, and couples who want something other than the beach
love this location. It's beautiful, it's quiet and the perfect spot for a small, intimate wedding. It has
a warm, home-spun ambiance,while being professional and organized. It's been a pleasure working
with Kate and Doug, and hope to continue to do so in the future. As you know, COVID has changed
all tourist-based industries, including the large wedding industry. Further disruption to venues
would also hinder our industry, including florists, farmers, caterers,videographers, calligraphers,
hotels, etcetera. We must have venues to have our weddings. I personally have weddings at
Sunshower on the books that have been postponed due to COVID. Having to face future
cancellations is devastating to a small business like mine, especially now. If this venue goes away, I
will also not be able to connect with future couples or book future business, which we all desperately
need. I depend on referrals. I depend on the size of wedding that Sunshower Farms offers, and
would not want to see another source of wedding leads dry up. This has been a devastating year for
us, and professionally I want to see as many options open to us as possible. Having less weddings
here in Kona impacts us all, as tourism dollars fund so much of our infrastructure and public
funding. We need to protect all main arteries that fuel this industry. We also need to ensure that
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there are affordable venues for our locals, too. Sunshower offers kama`aina discounts for local
couples. Every little bit helps our local community afford a beautiful day. Above and beyond all of
this, Kate and Doug are great community members. They truly care about our town and about
sustainability. They offer a venue that is environmentally conscious. I love that they make sure all
leftover food is composted and they even bought a special chipper so that cardboard and even paper
plates and wooden forks would be chipped and used on the farm as mulch. I love that it's an actual
working coffee farm. Many people buy parcels of land and only farm a tiny bit to get the tax break,
or they don't even farm at all. Sunshower is a working farm and they sell coffee to wedding guests,
which in turn generate more revenue and tax income for our state. Vendors like,venues like this
support our local economy, create jobs and employ dozens of vendors. We are incredibly grateful
for their presence here, and I hope you will grant their proposal. I would love to see Sunshower
build a dedicated venue so they could host more events. Although I know their main focus is
agriculture, having them be able to expand would be great for everyone here in Kona. Thank you for
your time, and please think of the future and the big picture as you make your decision. I know that
with any project you review there are pros and cons, but it is clear that the pros far outweigh the cons
in this situation."
CARR SMITH: Thank you. All right, next you can read in Kayla Jensen's.
A. HALEY: All right. Kayla Jensen: "Sunshower Farms is a really special place to me and
something I think is really special to our Kona community. I have lived here for seven years and
know Kate and Doug both personally and professionally. I have a fulltime job not in the wedding
industry, but in order to make ends meet, I usually have a second, and somethings third job. I served
at Holuakoa Café, before it permanently closed due to COVID, and I have worked on and off as a
server for private event catering. Though I am friends with Kate and Doug, I have also worked for
them a number of times on their wedding staff and feel like I can give some insight into their events.
Weddings at Sunshower are so special. The space is beautiful due to its natural setting and creates
once in a lifetime memories for their guests while also contributing to the whole Kona community.
Kate's been so intentional with her collaboration with local vendors, including catering companies,
bakeries, florists, and on and on. And they provide primary and secondary jobs to people who lived
in our community like me. I know that traffic and parking is a fear of the neighbors, and therefore
an issue for this permit,but I do not think it should be. Every event I have worked, Kate has been so
diligent in making sure the staff carpool, and that the road is kept clear. She is mindful of any
impact on the neighbors and takes care in keeping the noise from the events to a minimum. Overall,
I just really support Kate and Doug receiving a permit to continue moving forward with having
weddings in this space, because not only does it allow people to have these memories of such a
beautiful and special place in Holualoa, but it is also elevating and contributing to our local economy
and community in a multitude of ways. Thank you for listening, and I hope you take to heart what a
special place and special business this is. Aloha."
CARR SMITH: Thank you, Amber. All right,next is Kate Lyness. Down to two for you,I think.
A. HALEY: I have—okay. Kate Lyness: "I'm a resident of Pepe'ekeo and am also an entrepreneur
doing business on the Island of Hawai`i. Mrs. Hickey and I are members of the same entrepreneur
group where we meet regularly to support each other's businesses and provide information and
resources to help each other succeed. I have seen firsthand how much thought and care the Hickeys
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continually put into their business and farm. I have witnessed the efforts they have made to build
their business alongside and with the community,taking into account its role and effects on the
environment, other community members, and local businesses. First and foremost,I know that it is
their desire to continue building a thriving business that is in alignment with what is best for
everyone and to live and work in a community in which all members feel heard, supported, and
respected. Secondly,I strongly believe that this commission and every other body of government in
community should be doing everything they can to support small businesses on this island in the
wake of tremendous economic hardships we have recently faced. Farming is not an easy business,
especially for small family farms on this island. Recently, I've been volunteering my time and
experience as a financial analyst and business consultant with the business advisory services of The
Kohala Center. I have become more and more aware of just how difficult it is for farmers here to
build a financially sustainable business model. So often the ones who are able to succeed at this
have done so by finding creative ways to diversify their revenue streams and do so in ways that
support other local businesses at the same time. The Hickeys have done just this. It is my
observation that the Hickeys have very thoughtfully and thoroughly offered solutions to address
every potential objection to this permit being approved, and more so are willing to continue to
address any additional objections brought to their attention. It is entrepreneurs and community
members such as the Hickeys that are going to help improve the island economy in the coming
years, and I hope that this commission will approve their application so that they may do so. Thank
you. Kate Lyness."
CARR SMITH: Thank you. Next is Tracey Gapol.
A. HALEY: Tracey Gapol: "I humbly ask that you would please consider the approval of Kathryn
Hickey's permit for the following reasons: I first met her at a community group that was put together
to help other creatives in the wedding industry. Kathryn, or Kate as we all know her,poured so
much of herself into our group. Sharing with us above and beyond ideas of how we can all do better
and serve people better. Kate is always a people-first kind of person and has helped me and others in
our group on so many occasions. Kate really does make this a better place by how she helps. I have
had the honor of working as a vendor at her property. Kate gave us a glowing recommendation as
we were starting out a new venture within our current company. Kate again showed a people-first
attitude for everyone involved. She made sure everyone's needs were met, and that we were happy
as vendors, and the client was very happy with the result. I am grateful to know and work with Kate
and look forward to more events on her property with this permit approved."
CARR SMITH: Very good,thank you. And I believe the last testimony that you will read is from
Jane and Sara Morrill?
A. HALEY: Okay, there's, yes, okay. "This is Jane Morrill, and along with my husband we are the
owners of American Sportsman Series Fishing Schools here in Kailua-Kona. We are always looking
for ways to enhance the experiences and economy of our local community. We thoroughly support
other local businesses, which look to do the same. The Big Island has long been a popular spot for
two things: fishing and weddings. We believe that there are more creative and sustainable ways to
fulfill these demands for both visitors and kama'Aina alike than what is currently offered.
Sunshower Farms has created an organically beautiful and sustainable environment for agriculture,
as well as a sacred space for hosting weddings. This business supports many local residents
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1A A
financially and has been a five-star rated venue for countless weddings and receptions. We fully
support Sunshower Farms' application for a special use permit for a wedding venue to enhance their
ability to provide for their clients,which will be a win-win for the whole community. Our local
business men and women have been hit harder here in Hawai`i than almost anywhere else in the U.S.
Many will not survive. In fact, many have already closed down, which will only further delay our
collective economic recovery. It is beyond important to support the local businesses that have
shown exceptional strength and fortitude. Sunshower Farms has been shown,has shown an
incredible ability to flex with the demands that this year has brought, and it is in the best interest of
us all to see them continue to survive and thrive in the coming year. Mahalo." And that's Jim and
Jane Morrill, and if you want, I can move right into Sara Morrill.
"My name is Sara Morrill, and I worked at Sunshower Farms for wedding events and on day-to-day
farm tasks before leaving the island to travel in January. I support their application because I truly
believe in the work they are doing to empower local businesses and employees and create a truly
locally inspired family-run business. Sunshower Farms was an incredibly enjoyable and vibrant
place to work. One thing I always appreciated about working directly - --employees - - -loyal to
them, she made sure they were taken care of, and moreover appreciated, whether that meant
personally packing a to-go piece of wedding cake to make sure every staff member took one home,
ensuring we were compensated for the extra fifteen minutes we came in early to set up, encouraged
to take.a break when things got busy, and overall just appreciation for a job well done. Apart from
the individuals that Sunshower Farms directly employed, each event supported a number of local
vendors, including caterers, musicians, artists, florists and officiants - - -. I know that Kate has the
same kind of loyal, personal relationships with most of these vendors. Having worked many events,
I know how important it is to Kate and Doug to build a new space for events. They want to have a
space designed for weddings; a space that insulates for noise so that they are sure to not disrupt
neighbors; a space that with ADA facilities so that people of all ages and abilities can visit the farm
and enjoy the beauty of their venue; a space that compiles with all, complies with all local laws and
regulations—something that I know is very important to Kate and Doug. After all,that is why they
are applying for this permit. Finally, I hope you will consider that Sunshower Farms is an incredibly
important community business and part of the Big Island wedding industry. I hope my testimony, as
well as the numerous other testimonials you have heard today impress upon you how far-reaching
the impact of your decision will be. There are so many of us who depend on Sunshower Farms."
CARR SMITH: Thank you very much, Amber, appreciate you representing all of those folks and
providing the testimony. Thank you.
A. HALEY: Thank you.
CARR SMITH: All right. We're going to move on to,I believe our last two testifiers.
Mr. Paterson,you can turn your camera on, and Claire.
LEY: Hello?
PATERSON: - - -on audio.
LEY: He just has audio, Mr. Paterson.
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CARR SMITH: Okay,just audio. Okay. All right. Do you swear or affirm to tell the truth
before the Leeward Planning Commission today?
PATERSON: Yes, I do.
MASON: Yes.
CARR SMITH: All right, thank you. So, Mr. Paterson, I believe Leilani was planning on
testifying, and you, she's not available, so you're testifying on her behalf. Is that correct?
PATERSON: She's my wife, so.
CARR SMITH: Okay, okay. Joint testimony.
PATERSON: Yep.
CARR SMITH: Okay. Go ahead,please.
PATERSON: Okay. I'm an owner up at Waiono Ranch Road. I believe it all comes down to
the road,the road, the road. Over the past few years, I put more than four tons of asphalt down
on the road. I'm the guy that goes down on the road and fills the potholes and makes sure the
brush taken out so,you know, as bad as it is,you know, takes some of the hazards away. I see a
lot of the people coming up and down the roads. It's not a conducive environment for hauling
cattle trailers, horse trailers and then have people basically maybe from the city areas, things like
that, coming up,not being used to a road like that,not really knowing what to do. Downhill
traffic has to yield to uphill. People pulling trailers up the hill have cars right behind them; you
get off the road and stop,you'll roll back into those people. So even that little thing, what is very
unclear to,you know,the majority of people, we have to put signs up so that they can see it and
they can read them. I'm not opposed to these people trying to make a living. In fact, I support
them, I can,you know, I condone it. But I think they need to think outside the box. I think one
of the ways of looking would be Hula Daddy,which is right up the road from down where they
have built their processing plant and a showroom, and they have activities also down on the
lower highway. It's been a great investment for them. It's grown double since they bought it.
But yet the farm fields up below, up above, are just that, farm fields, so they don't have tourist
people. They still can sell their coffees. You folks, they could have farm tours,I imagine, if
they want, but, you know, it just would be a danger. I want them to continue with their business,
I hope they flourish. It sort of sounds like they're doing pretty good with the wedding venue.
Real estate, it would be a heck of an investment for them;buy a parcel down below, it'll do
nothing but go off,put the venue down there, have tours up on the farm, if people attending the
wedding want to see what the farm's about, so be it. But it just comes down to the road,the
road, the road. And it's too dangerous. It's, you know, you get people that aren't familiar with
it, and it's just not a good situation. That's all I have to say. Thank you.
CARR SMITH: Thank you very much. Thank you, appreciate that. Any questions from the
commissioners for Mr. Paterson? No. Okay,thank you very much.
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PATERSON: Thank you.
CARR SMITH: All right, Clair Mason is going to read written testimony on behalf of Johan
Forsberg. Do I have that right, Clair?
MASON: Yes, hi. Sorry, I just,he ended up having to text it to me, so hopefully it's all good.
Okay. "Hi, it's Johann. I'm the owner of HiCO Hawaiian Coffee, a new cafe in the Brew block.
I'm speaking on behalf of myself and my company. HiCO is a Hawaiian coffee collective where
we source coffee from across the islands of Hawaii. I have had the opportunity to meet many
farmers and understand firsthand how difficult it is for farmers to stay profitable. Now more
than ever, all businesses, especially farmers must be creative to keep their businesses afloat.
Even at our café, COVID has led to hard times and we're doing our best to keep our employees
paid. We need the support of our local government for all businesses right now. I've worked
with Kate very closely for about a year, and I love their coffee. We'll actually be featuring it
next month at our café. I want to be able to continue to support her and build camaraderie with
farmers here. We depend on farmers for our coffee and continue to serve Sunshower coffee
now. We have business, or my business partner and I have been to their farm as well, and it is
exemplary of organic farming in Hawai`i." Thank you.
CARR SMITH: Thank you very much. Okay, I think we're at the end of our testimony. Thank
you everyone who did testify. Thank you for everyone who has been listening. So, at this point
I'd like a motion to close public testimony please.
NEWBERG: So moved.
CARR SMITH: Is there a second?
KEALOHA: I'll second.
CARR SMITH: Okay, so Commissioner Newberg made a motion to close public testimony. I
heard Mr. Kealoha seconded it. All in favor?
COMMISSIONERS: Aye.
CARR SMITH: Anybody opposed? (Pause) All right, public testimony is closed. Okay. How
are we doing? Everybody doing okay? We're ready to move into a motion for action, and then
we'll have some discussion about that,unless anybody has something else prior to that. Go
ahead, Maija.
JACKSON: Thank you, Chair Can Smith. I just wanted to note one correction to the planning
director's findings before a motion is made. On page 9, number 3, Mr. Kern had pointed out that
we incorrectly referenced a section of the zoning code related to income generation. And so I
want to say that he is correct, and explain that section of the code a little bit.
CARR SMITH: Go ahead.
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l l
JACKSON: The agricultural tourism section of the zoning code says that if you are going to
have weddings on your working farm, or special events, or operate ag tourism activities after
6:00 p.m. daily, or if your gross revenues from the ag tourism will exceed the gross revenues.
from the farming activity, those are all criteria for applying for a special permit. And as
Mr. Kern mentioned,we do look at these on a case-by-case basis. The application submitted
referenced the Doutor Coffee property, and that property is located about a mile north of Waiono
Ranch Road intersection with Mamalahoa Highway. The property is on the mauka, it's just
mauka of the highway, and they came in in 2010 for a Special Permit to allow weddings and
special events to be held in an existing farm dwelling. So,there's a few differences between that
Special Permit application and the one before you that I want to point out. The Doutor property
access was directly off the highway;there was no private road,no private substandard road to
access the property. The applicant improved the access and recessed the gate in compliance with
what Department of Publics, Depalanent of Public Works had asked for. The other major
difference is that the Doutor property was about a hundred acres in size. On that property they
had 50,000 coffee trees. So, they were, they were also offering farm tours on the property in
conjunction with the special events and weddings. And—let's see—they,they met with
neighbors prior to submitting the application, and due to that, they limited activities and hours so
that there was no amplified music after 7:00 p.m. So those are the main differences between the
current application before you and the Doutor application, which the Department did support 10
years ago.
I also just want to point out two other areas, or reiterate two other areas, of concern. The revised
site plan, revised floor plan that was provided to you also did not show any sliding glass doors;
there's still a very large open area, so we're not,there's still a question of how the events will not
affect surrounding property owners related to noise when there's a good portion of the structure
that's open and, and won't be enclosed.
And then lastly,the, quite a few testifiers referenced the current operation that had been
occurring over the last three years, and that there was no impact to surrounding property owners
or no formal complaints submitted to the Department. But I do want to point out that
Ms. Hickey mentioned they had 50 weddings in 2019, and the current proposal is for 100
weddings annually. So we're looking at a 50 percent increase.
CARR SMITH: Thanks,Maija. Do you have a comment, Commissioner Vitousek?
VITOUSEK: Just a question. I'm just wondering if the county is aware of any other additional
permitted wedding venues in the vicinity, besides the ones mentioned.
JACKSON: The two permitted facilities we're aware of are the Holualoa Inn and the Doutor
Coffee property.
CARR SMITH: Thank you. Maija, did you want to address any other of, of Mr. Kern's
comments? Or did you feel like that those have been gone over? I wasn't sure whether you
were going to address that at some point.
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JACKSON: Yeah, I think those have adequately been gone over other than we would want to
change the findings,the first finding to correct that statement should the commission vote to
deny the permit.
CARR SMITH: On Item number 3.
JACKSON: Yeah.
CARR SMITH: Okay. Commissioner—
KERN: Madam Chair?
CARR SMITH: —Van Pernis. I'm sorry? Go ahead. Go ahead, Zendo.
KERN: Sony, I just,I'm hoping we'll have a chance to provide one more round of comments
based on the testimony etcetera per the usual.
CARR SMITH: Sure.
KERN: Until then I'll yield.
CARR SMITH: Yeah,thank you. I was getting a little rummy and I was going right to that, but
then I realized I shouldn't. Thank you. Commissioner Van Pernis, go ahead.
VAN PERNIS: Yes, I'd like to make my comments now. Having been a recent resident of
HOlualoa, I'm aware of other wedding venues in addition of those mentioned by Ms. Jackson.
There is Holualoa Inn,the,there's a restaurant in HOlualoa,which has a larger venue for that,
and also this is a large property, which I believe this was approved by the county, and the Duarte
property has good roads right up to it,big wide roads—
CARR SMITH: That's what Maija shared with us already.
VAN PERNIS: Not Doutor, Duarte is an addition to Doutor.
CARR SMITH: Oh.
VAN PERNIS: Now,the issue here is the road, and out of all the testimony, every lot owner,
every person living out there was opposed to this basically because of the road. I think the,there
should be no chance of this illegal activity continuing unless the road is dealt with. There's no
association, so it falls on the applicant to fix the road or arrange to fix the road. Now—
CARR SMITH: Okay,thank you very—
VAN PERNIS: —I want to, I want to point out that this is a simple matter. We're a government
of laws,not of people. The issue is not whether Ms. Hickey is a good person or contributes to
the community. If that was the case, then every Special Permit would be to heck with the law,
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just analyze the person whether they're a good person or not,whether I,I'm a wonderful person,
with exuberance, you know, you'd have the judgment. It's not a matter of judging people. It's
not a question of how many people they might employ, or what a good recycler they are. We're
a government of laws. The law is,the state land use law is, as the planning director has stated,
this cannot be allowed under the present law, under the state land use law. And thus, if we start
this precedent, regardless of how nice a person Ms. Hickey might be, if we start this precedent,
every agricultural property, every Land Use Agricultural classified property will be able to go
commercial.
CARR SMITH: Okay,thank you.. Zendo,why don't you go ahead and add any thoughts at this
point?
KERN: Thank you very much,Madam Chair. Just to, I guess, respond to the last thing from
Mr. Van Pernis, it sounds like - - -have special permits in general,period. To say that this is
illegal is, is wrong. To say this is illegal, with you being an attorney, is surprising. This is the
legal process in which to obtain operating illegal business on the property. Thus, we're here
going through the process and really trying to do it right. It's quite tricky because as you're all
very aware, there's, there's, this is not a simple issue; this is complicated from farming, small
business, neighbors, etcetera.
I will say that Kate reached out to the surrounding property owners, especially her immediate
ones in the CPR right away at the very beginning with a care package and a letter explaining
what we're,what we're doing there. She can explain further on to that, but the goal was to really
sit down with the neighbors,the surrounding property owners and, and talk story about what,
what's going on here. I've also reached out multiple times outside of the normal notices to
surrounding property owners as required by the county code by way of letter as well as email,
seeing if we could sit down and, and talk, and address some of these concerns because part of
what we have going on here, as you've seen, is the sky's falling,we're going to have 250 cars up
and down that road,this is, this is just too much,that's 250 cars going up and down the road all
the time. That's not even close to the truth. We,we proposed to limit it to 20 cars. We, there
might be a maximum number of that many people,which could be limited as well. - - -today
was the possibility that we could maybe talk story with the neighbors and for them to reach out
instead of saying, instead of- --
CARR SMITH: You're breaking up a little bit, Zendo.
KERN: Oh. How- - -better? -- -ish? You know, it's a sensitive subject and I think,I don't
want to—can you hear me okay?
CARR SMITH: I think so.
KERN: Cool. I certainly don't want to create negativity. I'm always trying to garner
collaboration and bring in folks together, and that's what we were hoping we could do with the
neighbors. On that note, we are open to continuing the hearing and sitting down with the
neighbors and talking story and finding a way to mitigate the issues. And bringing something
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4
that actually is, everybody has the same kind of mindset around. I think we do need to adjust a
few of the requests. Can you---
CARR SMITH: Go ahead.
KERN: Okay.
CARR SMITH: Yep.
KERN: We know we do need to adjust, I, I think, some of the numbers just to make it a little bit
more finable and every---I think it's clear that there's some things that are just not being seen
correctly here, such as the 250 cars ---that can be addressed. We're dealing with a lot of
Specula- - - and either, either the neighbors didn't know about it, which would be a testament to
how well the Hickey's run their event or they did-- - about it and still no complaints would still
be - --running their events. We have,we do have, there's - --I know times getting on so,you
know—
CARR SMITH: Yeah.
KERN: I think we're open to mitigating. Sound,we are open to mitigating. Working out the
road impact, super open to mitigating. We kind of came forth with these elements to help
mitigate this, and that would be our, our hope is to be able to continue that- - -to you know,
hand this over to Kate. I see Commissioner Newberg probably has a question for me first
CARR SMITH: - - - •
KERN: —I'd like to forward-- -Kate, Doug the opportunity to get some, one point in here.
And then - - couple things -- -
CARR SMITH: You're breaking up, Zendo. I don't know if its afternoon Internet or what, but.
KERN: Young farmers are very challenged. Is that any better?
CARR SMITH: No, go ahead.
KERN: If I smile, is that better?
CARR SMITH: That helps.
KERN: Young farmers are challenged. If you look at the actual numbers, there's not many of
them. I think we should be supporting them. And lastly—I'll leave it with this—this property
does meet the requirements for agricultural tourism. With agricultural tourism we could do an
administrative action on that, and there could be as many as 30,000 cars annually up that road,
with no mitigation measures. I don't think that's necessarily the right idea; I think mitigating
things and finding a reasonable solution, and maybe even solving some of this road problem
would be very positive. So, I'm hoping that, that there is some open mindset and some open
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a
thinking to that, or at least push toward some collaboration with the surrounding property owners
because that, I think, is the first thing, and we have been trying to do that. We can't force
anybody to do that,though.
CARR SMITH: Yeah. That's, I would like to ask Kate to speak to that briefly, if you can,
please. What was the response when you reached out to the owners and,the surrounding
owners, and did you have any discussions with them?
K. HICKEY: Yes,I'd be happy to talk on that. So, the first thing I'd like to say is that all the
neighbors are not against us. We submitted three letters of support from, one of the properties
that is in support is the direct bordering property to the, to our mauka side—
CARR SMITH: What's the---?
K. HICKEY: Alison Naito.
CARR SMITH: Okay.
K. HICKEY: And then the other letters of support from neighbors were from Sara Moore and
also from the Thortons, the Thorton family. And all three of them were in support of our, of our
permit. We also have another neighbor—
CARR SMITH: - - -
K. HICKEY: I'm sorry, did you have a question about that?
CARR SMITH: No, go ahead.
K. HICKEY: Okay. We also, we also had another neighbor, Dave Wilkinson from Kona Star
Farms, and he sent me a letter that he wanted me to submit on his behalf to the commission and I
did not,but—and I'll explain that in a second—his letter said that he supported us, and that he
supported this venue, and that he wanted one condition on the permit, which was that no more
than two cars could come up the road at a time in a caravan so that like at the bottom of the road
we would have an employee not allowing more than two to come up at once, so there would
never be a situation with 18 cars, like a neighbor had said had happened to them. I was ready to
submit it to the commission, and that day is the day that Wendy Mitchell,who you heard from
today, submitted her petition to all the neighbors. That petition severely mischaracterized the
permit. It said many times about how many visitors would be up at the farm, like, that there
would be 250 to 500 visitors,which is true, that is what we applied for at the absolute maximum;
however, we are doing an average,what we're hoping for is to be approved for 100 weddings a
year at most, with 20 cars per event. So,that's an average of two weddings per week of 20 cars
each, so, that's 40 cars a week. The hundreds of cars is a complete mischaracterization of our
application, and it,what ended up happening is our other neighbor called me and said, you know,
I don't want to be for it and I don't want to be against it, I want to just be completely neutral,
because he didn't want to get on the bad side of any of the other neighbors. So, also, her
assertion that we had 36 neighbors and 36 property owners were in support of her opposition,
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that is not- - -true at all - -- 36 properties on,Waiono Ranch Road. If you look at the Tax Map
Keys,there's not that many properties. So, I think,you know,there, we're in a situation where
there's multiple people signing -- -home.
And to back up and really answer your question,Nancy, did we talk to the other neighbors? Yes,
we sent around our care package,we sent the letters., The letter, I think, should have been
included in your materials. I don't know if Zendo, if that was submitted. In it we were very - - -
in asking for their support of this and saying we would come together and put in any mitigation
strategies for any of their-issues. And I received one call back from that. That was from Pam
Parker on behalf of all of the units of our Greener Pasture CPR, and she said very clearly to me
that there was nothing we could do that she would support this, that there was no circumstance
under which she would support us to get this Special Use permit. She said that it would,that—I
said,well, what if we limited the number of cars,what if we limited the number of people,what
if we limited the number of events—and she said there is nothing you could do. So, you know,
at this point we just feel like we are up,up --- insurmountable odds. You know,we're really,
really trying to make it work. To be clear, the Mitchells aren't, Wendy Mitchell and Tom
Buckner hasn't,they don't farm. Pam Parker, she is not a farmer, either. Audrey Grossman and
Steve Grossman, they are not farmers, either. Nancy Capri and Gary Capri,they are not farmers,
either. The people who are in opposition to this have bought agricultural land and do not farm it.
And yet the Planning Department is worried that our farm that is actually farming is going to be
changing the character of the community. I personally believe that people who are getting
subsidies for their ag land,tax subsidies, should be, should have to farm. And if they're not,then
they should support those of us who are trying. We are trying our very best. And I would really
ask the commission like, if you're not going to approve this, please tell me what else can we do?
What else can we do to make it as farmers? Do you want us to just have to be rich and sit on our
land and not let anybody else up here? Like, how is it possible to be a farmer in Hawai`i, if we
cannot diversify our income streams? And, you know, that's,that's all I'd like to say. Thanks.
CARR SMITH: - - -
KERN: You're muted,Nancy.
NEWBERG: You're muted,Nancy.
CARR SMITH: I was wondering if Director Yee has any comments at this point, since we like
to provide you with opportunity after public testimony, if you have any changes in the way you
feel.
YEE: = - -
CARR SMITH: I can't hear you,Michael. I don't see a mute,but I can't hear you. Time out.
He's got a new computer. Does anybody else have anything to say at this time? Faye,
Commissioner Faye.
YATES: Yes—
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KAY: He's right here.
•
YEE: My, my apologies. Can you hear me now?
CARR SMITH: Oh, hold off, Faye. Yeah, go ahead, Michael.
YEE: Yeah, don't know what happened; we did sound check earlier,but now the microphone is
not working on my laptop. Anyway, so, quick reflections. A, in terms of somebody operating
illegally, we've heard a lot of comments around, you know,punishing somebody who's coming
in for a permit. I want to be clear that we,we are complaint-driven in our zoning violations
division, so when we receive a complaint we go out and investigate. So, I do not want to have an
impression out there that the Planning Department looks the other way when we receive
complaints. We deal with applications that come with us, that come to us. Certainly, generally
speaking, whether or not this application would have come to us prior to them beginning
operations, we would be viewing it under the same criteria. So,wanted to just close that gap
there.
I think, clearly, we've heard a lot of testimony around the applicant,the quality of characters that
they are, and that's good. I think, I do want to, as just personal advice, I could start hearing some
of the testimony run into a direction of trying to throw other people under the bus, and that
doesn't, does not serve anybody well at this point when we're trying to find some common
ground. And I know people may be frustrated,but I would forewarn folks not to go in that
direction. I think that early on as Zendo has come in to consult with us, there has been a lot of
questions around what may or may not be acceptable to the community. You certainly have
heard disconnect between the community and the applicant, and,you know, if there's room for
more discussions, we certainly encourage that. I've heard comments from testimony that
somehow the Planning Department is responsible for like leading those conversations. And, and
we are not. At a certain point Zendo brought an application with,with what the applicant
wanted, and we have got to analyze it for that. If the applicant wants to bring in something
different or works out something differently with the community,then we address that,but it's
not the Planning Department's job to go out and try to figure out a scale necessarily. We can
certainly advise based on our experience, but it's not our job to figure out what's the exact
application, you know, what you can do that's going to get you there with your neighbors, right?
And that work has to occur between the neighbors and the applicant. So those are my reflections
for now, Chair Smith.
CARR SMITH: Thank you very much. Thank you. Anyone else? Faye, go ahead.
Commissioner Faye, go ahead.
YATES: Okay. Can you hear me okay?
CARR SMITH: Yes.
YATES: Okay. I just,you know, it's like, I'm trying to understand the question; I'm not trying
to be a commissioner to make things rough for anybody. But I was just wondering, for
Ms. Hickey, I don't know how much money you're planning --- spend to bring it up - -- do
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what you're wanting to do up there,but,would you not be able to find anything where you could
spend that money and do it in a commercial area where, you know,you don't have to deal with
roads and neighbors who are disgruntled? Also, I kind of feel like, you know, for, you know,
based on the rulings that they have about people owning property, being farmers, and not
farming, and whatnot, it also could be because some of them are older,they're not able to farm.
And also, I was reading this - - -that says, "The `agricultural tourism' section of the Hawai`i
County zoning code provides that weddings, parties, and catered events can be established on a
working farm with a Special Permit. To do this, the income generated from the agricultural
tourism cannot exceed the income generated by the farming activities," and if I heard you
correctly to begin with, last year it sounded like,I think you said your bottom line was like$80
or $90,000 and your farm was $30,000, so I'm just trying to understand all of this. And so, and
then I also felt,you know, it would be kind of rude of any of us to,you know, if the people who
owned property there don't want that,I would kind of be upset if somebody came along and
changed the zoning and then kicked me under the bus. So,I'm just sharing. Thank you.
CARR SMITH: Thank you,Faye. Commissioner Newberg.
K. HICKEY: But, I'm sorry, one second—
NEWBERG: -- -
K. HICKEY: —do I, am I allowed to respond to the question? Or no?
CARR SMITH: Sure, go ahead, Kate.
HICKEY: Okay, so, one of the things that you mentioned was the, the code requiring the venue
to make less money than the farm. That is only the case if we were pursuing an agricultural
tourism permit and not a special use permit. The reason we are applying for special use permit
specifically, is because it makes more money than the farm, and also because it's a wedding
venue. So, that, that's why we applied for this specific permit.
As far as, you know, my perceived difficulties with the neighbors, I would really ask the
commissioners to put yourself in my shoes. I've been trying for,you know, we've had it really -
- -with them for almost eight years now. We've been good neighbors. And when I say we've
never had a complaint, I mean we've never had one even to me;no one has ever texted me, or
called me, or emailed me. All of my neighbors have those contact information to say that they'd
had any issue with these events. In fact, some of them have posted on their Instagram like,
another beautiful wedding, we'd love to see what you're doing up there. So,you know,I go
from that, and we felt like we were growing a really sustainable, great business. And I find out
that we're zoned incorrectly. That is my fault. I'm very, very sorry about that. But since then,
we've been trying so hard to work with everyone and comply with every single rule. And when
we tried to do that, we were met with resistance with people who wouldn't even talk to us, who
we've reached out to many times that have said specifically, we do not want to talk to you, we're
going to bring it to the hearing. And now we're in a situation where our whole livelihoods are - -
-because - -- against us. And I want to ask you,what would you do? Like,I really want to be
respectful to everyone. If you read through this documentation, you'll see -- -that. We have
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been trying to work with everyone this whole time. We want to be good neighbors. We really,
really do. I've,I'm, I'm imploring you to ask yourselves what I could have done differently to
have brought them to the table to appease their issues. And if the answer is that there is nothing
that I could have done differently, then I would please ask that you take that into consideration.
Thank you.
KERN: To touch on that real—
CARR SMITH: Commissioner Newberg—
KERN: —Ms. Can, could I add real briefly to that? Super short—
CARR
hortCARR SMITH: Sure, go ahead.
KERN: With the, with the question of,you know, could she have found a commercial location
and the ag won't, won't go together, so it be separate, so, I think it's important from the
standpoint of the testifiers, some of that have worked, been here for a very long time farming and
saw Kate, this happened naturally and organically;they started out farming,they were working
farming,how do we, you know, offset our income a little bit, okay, got a few weddings, to the
point of like, oh, this is actually kind of working, coffee's working, the farm's working, and now
here we are. So, it's very much organic. It wasn't like, to my knowledge, they didn't come in
saying we're going to do weddings,you know, right off the bat. It was, it was a natural
evolution. That, the other testifiers long-standing community - - - thank you.
CARR SMITH: Understood. Commissioner Newberg.
NEWBERG: Thank you, Chair. Just trying to review everything as best as can. You know,
very emotional subject, and from what I can glean- --venues are needed. I wanted to speak to,
if I could get information from either Zendo, Ms.Hickey or, or perhaps Mr. Thuy on the process
because I'm trying to square two different things. One, as the word was just said, organically
grown into weddings when you went from a few weddings in 2017, 40 in 2018, and now 50 in
2019 last year,I don't think you're trying to continue business as you have been; you are
wanting to build a 3,500 square-foot venue and make this your primary business. So I'm curious
if that's what triggered reaching out to the neighbors or, or if it happened prior, or how this got to.
this point for this application?
K. HICKEY: Yeah, I can speak to that. So,the,when we say like organic growth,what I mean
by that is we never advertised anywhere for our weddings. So, we are,we have our website,
we've never done any sort of paid advertising. It's just that the demand has - - - far surpassed
the supply, I mean,what we can comfortably host. And so, at that point we wanted to build a
bigger venue. To be clear, the space that we initially submitted was 3,500 square feet just
because we thought that was just a conceptual drawing. I had no experience in this before. We
hired a designer, and I specifically went over with her what we were looking for, which was a
venue that ideally seats 50, seats 50, so for seated dinners you would only have up to that many.
And when we went over that, we realized we can make it actually far smaller than what we
applied for. So at that point, we adjusted and resubmitted. So the current venue design is 2,700
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square feet, but only 1,400 of that is-14, I don't know 15, something like that—is under roof
space. So, a lot of it is like porches, and, and ADA ramps, and decks and stuff, so,you know, it
is a much, much smaller venue than what we applied for. Yeah, and also previously we were in
our home, and we really wanted to get out of our home. So we reached out to the neighbors for
the first time about this permit when we were applying for it. To be honest, I—and Zendo can
attest to this—I had no idea that they would have any problem with this. I thought, you know,
we've been doing this for years, they all know about it,there's never been an issue, and so I just
thought, you know, of course they're going to support us. And I thought we were friends. I
thought that we all got along great, and that there would be no reason why they would oppose
this. And when we found out that they would be in opposition, even though they wouldn't talk
to us, we did everything we could at that point, including making the venue small, reducing the
amount of bathrooms, limiting the cars, planning the decibel meters. The new plans do, in fact,
have sliding pocket doors around the dance floor so there will not be any -- -possible noise
escaping. So we are working very hard to meet all the conditions of the neighbors, even though
they have not been willing to meet with us. Does that answer your question, Commissioner
Newberg?
NEWBERG: It does, and just to clarify, so,when you decided that you wanted to build a venue
and propose this as, you know, a, a solid business plan, is that when you started reaching out to
the neighbors for their input?
K. HICKEY: Yes.
CARR SMITH: All right. Commissioner Van Perris.
VAN PERNIS: Yes, first of all, isn't it true that your neighbors have a right not to agree or
oppose—
CARR SMITH: Mark, could you please take off your mask and grab your microphone? Thank
you.
VAN PERNIS: Thank you. Your neighbors have the right to oppose your application or not talk
to you, right? They don't have to agree or compromise with you?
K. HICKEY: Of course, of course they have that right—
VAN
ightVAN PERNIS: All right, thank you.
K. HICKEY: —I hope that this commission will understand that they have in front of them a
community, a community member, a small business owner, someone who is trying their best to
make it in Hawai`i, and they have on the other hand, a handful of people in opposition, an
opposition to that just because they don't want it. So, of course they have the right to oppose it,
but you also have the right to decide what's the best for our community, and I'm hopeful that
you'll find in favor of us.
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VAN PERNIS: And isn't it, you, you asked what else could you do. Well, the answer is
obvious; improve the road. That's where the opposition is based. Why don't you—
K. HICKEY: Yeah—
VAN PERNIS: —agree to improve the road?
K. HICKEY: With all due respect, with all due respect, Commissioner Van Pernis, I would love
to do that. Since we moved in,we have wanted a road maintenance agreement so that we can
improve the road. The problem is, is that the neighbors want to- - -
VAN PERNIS: I'm talking—
K. HICKEY: —neighbors who are in opposition to this - --sorry, can you not hear me?
VAN PERNIS: I'm talking about you improving the road, not a road maintenance agreement.
K. HICKEY: Right- - -
CARR SMITH: -- -
VAN PERNIS: That would involve everybody who would have to pay for your extensive use of
the road.
K. HICKEY: Right. Yeah, so,to be clear for one second, what I'm talking about again,to
reiterate, is 40 cars a week. That is not extensive use of the road. We, and every other coffee
farm on this road have 20-plus pickers every single picking day. We pick three or four days a, in
a row, every two to three weeks. So all of the properties on this road who grow coffee have
more cars than this proposed use would even be. This is a very small amount of cars. But I do
agree with you; it is more cars than we are currently using, and it is,would require us to do more
road maintenance. And we are open to doing that. We would love to sit down and talk to the
neighbors. I had talked to Zendo, maybe we take$100, or$200 off of every event and put it in a
fund for road maintenance, maybe we can do,you know, certain amount of mowing, or repairs
throughout. The issue is it's hundreds and hundreds of thousand, of thousands of dollars to
widen the road. Not only that,we don't own the road. We don't have permission to widen the
road. We can't do those things unilaterally. Would I be willing to do a lot of maintenance?
Yes. I'm begging you guys to ask me to do that. If you will approve it, and I can do that,I will
do that. I will do anything—
VAN PERNIS: Have you or Zendo asked the road owners for improvement—
CARR
mprovementCARR SMITH: Mr. Van Pernis—
VAN PERNIS: —or the right to improve?
CARR SMITH: Mr. Van Pernis, you cut her off and so it wasn't clear-
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k
VAN PERNIS: I thought she was done and she was—
CARR SMITH: —will you please finish your last question, please?
VAN PERNIS: Okay, I will. Did you or Zendo approach the other easement holders or the
landowner with any plan for your, I'm talking about your, not an association, your improvement
of the road?
K. HICKEY: We have approached them many times—
KERN: We would love to have that conversation. - - -yeah,no,we're saying the same thing—
VAN PERNIS: - - -have you approached them?
KERN: Yes—
VAN PERNIS: - - -
KERN: Commissioner Van, Commissioner Van Pernis—
CARR SMITH: Noriko, could you please mute? Go ahead.
KERN: We've approached the neighbors multiple times, are still more than open and willing to
having those conversations. That is like one of the, other than allowing the Hickey's to continue
operate their business, that's kind of like one of the primaries, is to get with the neighbors so we
can talk story about that.
K. HICKEY: I would just like to say I think that you can tell from all of our testimony that we
are caring community members. We do not want to be fighting with our neighbors. We would
do anything to bring them to the table to meet with us to discuss the issues so we can come
together for a solution. They are unwilling to meet with us because they know that if they just
dig in, or they hope that you commissioners will vote against our permit. They think that if they
won't meet with us,then you will just say no. And I'm begging you to give—to require them to
meet with us, I don't know—to consider the fact that they won't meet with us and just to take
that into consideration. We are trying to do whatever we can do to get this. Please, I'm begging
you to consider this.
KERN: Yeah, one of the sad things about, sometimes, these types of applications can kind of
tear into the community. My hope would be that we could have a ho`oponopono with the,with
the surrounding property owners, reach out,talk story, and, you know, if we come back to the
table with the same situation, at least we really did try our very best, as we feel like we've done
now. But it would be very important to afford that opportunity, and you can't force anybody but
at least encourage others around to do that, and we'll happily send out new meetings, host via
Zoom. There's not many reasons these days that we can't get a meeting, especially with the
change of behavior with Zoom.
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CARR SMITH: Thank you. Well, my comments are that I'm very impressed by how many
people stood up for you. Obviously, you're of strong character and I,I was very impressed by
that. You should feel good about that. I completely support small business owners, especially at
this time, so I understand all the people testifying in support of this. It affects a lot of people, I
understand that. I totally understand that the idea of diversifying your agricultural practices as
well, and it's, it's not easy to be a farmer, and I understand how you're looking for that. That
makes total sense to me. And you're out here,you're trying to do the right thing. You're to be
commended for that. I get all of that. But it seems to me like you need your neighbors, because
this is not going to happen without your neighbors. I don't know whether that involves, you
know, limiting, maybe you have one wedding a week, or whatever; there's many things that
could perhaps be adjusted. And maybe you do have a proposal for them as to what you could do
to improve the road to make it safer. But it seems to me like that's what you need to do is, is get
with them and try to find a solution that's a win-win for everybody. Does anybody else have any
comments?
THUY: May I be recognized briefly?
CARR SMITH: Mr. Thuy.
THUY: Thank you. I just,very briefly, the question about fixing up the roadway, instead of
beating a dead horse on that, I think we talked about that quite a bit, it, it's owned by a whole
different entity, so our clients haven't that, they wouldn't have any rights to do that legally,
really. But I wanted to refer something that has not been discussed, and that is the original
county background report on this. I think it was done shortly after the application came in, in
about May, or before the findings, and this whole question about impacts and traffic impacts and
what the access would be, were made part of that report, and they both were affirmative
recommendations made by staff at that time. So, I think there certainly is another side to this,
maybe that hasn't been really presented in the full, in the fullness of what could be presented to
the commission. So I think that would be another reason to follow through on what Mr. Kern
indicated, might be some additional outreach to these folks to see about if there is some logistic
way that traffic impacts could be reduced. But there are some speculation on there being,you
know, safety issues, although we haven't really seen it. You know, we got decades of use of the
roadway without any indication that that has been a dangerous roadway with the current use, and
then there were three years of use by the Hickeys,which did not result in any safety issues of
which we're aware. And maybe we can get some input from the Police Depaitnient or other
reporting agencies to see if that has been an issue. But as of right now,the findings of fact,
which were presented to you folks for today are quite different than the traffic impacts,which is
under section 3J and 3K of the environmental report, which was submitted earlier by staff. So, it
certainly seems that there's more of issues there. And that's all I have to add.
CARR SMITH` Thank you very much. I don't know, Mr. Van Pernis, I'm hesitant to go to you.
I haven't really appreciated your line of questioning today, so I'm not sure what you have to say
at this point. But I'd like to move to a motion, if, or if anybody that we haven't heard from—
Mr. Vitousek, Mr. Kealoha, Ms. De Franco, do any of you have anything to add at this point?
Go ahead, Commissioner Vitousek.
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VITOUSEK: Yeah,I mean, the discussion about the traffic impact analysis, a lot of that depends
on, as Zendo pointed out, the results of the traffic impact report. Is that something the applicants
would be willing to prepare, if we were to move towards a deferment?
KERN: I believe—
K. HICKEY: -- -
KERN: Kate,you want to speak to that? But I do believe - -- go ahead.
K. HICKEY: Yeah,yes, we would certainly be willing to do that. The, my only kind of concern
on that is that the traffic is certainly a lot lower right now than usual due to COVID; I'm not sure
how accurate a traffic study would be, if it was done right now. But I certainly would support
that. I would like all, all the evidence for you guys to look at that you possibly can have, so, yes.
KERN: And, and with that,there's possible for a, you know,traffic management plan like we've
done for schools in the past. There are ways to work through this. I do think it comes back to
talking story with the surrounding property owners and coming up with some, you know,
numbers, and I mean traffic counts and car counts, as we've kind of already tried to do, that are
reasonable for both sides. And at that point, one of the conditions would be to have a traffic
engineer look at that, or some part there,I think we'd be more than open to do that. So far,I
haven't seen Kate and Doug not be willing to just do anything they can to maintain.
KEALOHA: - --
CARR SMITH: Commissioner Kealoha, did you have something to add?
KEALOHA: I was going to save it for after the motion was made but,to the applicants, you
know, to me what you're going through right now is a microcosm of society in general. You are
doing everything that the state says we need; we need to diversify our economy, they are looking
at farming as a way of getting away from tourism, and you are trying to sustain your business.
And I respect all of it. Our community is changing as we speak, and our laws and ordinances
haven't caught up with our current environment just yet. So,unfortunately,I think this may be a
little premature at this time. That, I don't, I don't know that your request is evolved enough. I
do see the risk on that road. I've been up that road in the past, I mean it's a very narrow road
made for ranching that was somehow converted to farming. If I was a homeowner, I'd be afraid
of the liability, if somebody were to drive drunk down that road and I end up in a lawsuit. So,
that's a tough one to overcome. I don't know how you mitigate that,through insurance or what
have you. But I do think that the request is a little premature at this time.
CARR SMITH: Commissioner Vitousek. Thank you, Perry.
VITOUSEK: I just want to agree with Commissioner Kealoha on that one and say that I
personally agree with many aspects of what Mr. Kern, the applicants, and the members of the
public who testified in support of this application said. I believe that commercial use in
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Agricultural district should be allowed on a case-by-case basis through special permitting
process. That's why it exists,you know? I did some research and according to the U.S.
Department of Agriculture,nationwide median farming income for farming household, median
income for farming households is $83,000 in 2018. Most of these households have dual income,
non-farm and farm income sources. And in 2018,median on-farm income was minus $1,735.
So that's a clear indication that farming needs to be diversified in their income streams to
survive. You know,nation-wide it's very difficult to make a living in farming. Hawai`i, it's
even more difficult,because real estate prices are driven up by wealthy people coming in from
the mainland and buying agricultural properties as kind of a retirement or novelty at a value that
far exceeds the agricultural revenue of those properties. We can't change the perception of
value. Property is always going to be expensive. But we can understand that farmers will need
to supplement their income. I really think that having venues like this that are reflective of the
agricultural character of our island is important. It's the part of our island that I would rather
share with visitors than the resort,which could be anywhere in the world. And I believe that the
percentage of farming income versus non-farming income should be irrelevant when considering
a Special Permit. I also,I don't personally care if visitors to the property have complaints about
agricultural uses in an agricultural area, you know, from where I'm concerned, they can try not
to step in the cattle guard on the way out. Based on that, we have to consider the merits of the
individual application. And it's up to the Planning Department,the Planning Commission, to
consider the merits of the individual application based on the criteria that exists in the current
regulations. I believe if you look at this case, we see that this case is a good concept put forward
by good people,but the location is problematic. Like Perry said,you know, I've been up and
down the road many times. I understand how hazardous it is. And until a Traffic Impact
Analysis Report can tell me that I'm wrong,I believe that it's a matter of when, and not if,
there's a bad accident that would be associated with intoxicated wedding guests coming down
that road late at night. So, for me, you know, I hope that the Hickeys will be able to use that
same ability that they have in putting together this entire group of people who came out to
support them, to work within their own neighborhood to reach a consensus on how you can
move forward in agreement with your neighbors. So to me, I would, I would be comfortable
with a deferment on this, and giving them the opportunity to work it out with their neighbors.
Hopefully, they'll be willing to come to the table. I, I think the problem is that so many people
are unwilling to find the middle ground. I think, Kathryn, with your ability that you've
demonstrated here, I think that you can do that; I think that you can find middle ground with
your neighbors and you can come back with an application that people support. With that,I
guess I'll make a motion to defer this agenda item.
CARR SMITH: Got a motion on the floor—
KEALOHA: I'll second.
CARR SMITH: —Mr. Vitousek.
VITOUSEK: Uh-huh.
CARR SMITH: Was that you, Perry?
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KEALOHA: Yes.
VITOUSEK: I think it was Mark.
CARR SMITH: I heard Perry. Okay, we've got a motion on the floor to defer from
Mr. Vitousek and a second from Mr. Kealoha. Is there any other discussion about this?
Commissioner Newberg?
NEWBERG: Yes,just to mirror both Chair Smith and Commissioner Vitousek, and I think
everyone here, you're doing all the right things, and Imthink if there's any solace to be taken out
of this, is, a deferment I think would be good, a good approach to try and find consensus
amongst your neighbors, or possibly something else to,to open up to you folks that seem to be
doing the,the right things by your circle,yet it's a difficult venue location. So, you know,
hopefully,this deferment, should it move forward, give that time for the gears to link up for you
folks.
CARR SMITH: Thank you,Max. Faye, go ahead.
YATES: Are we on?
CARR SMITH: Go ahead, Faye.
YATES: And again,I would like to ask Ms. Hickey if you may consider,you know, if all of this
is, you know, difficult and the neighbors are,they are not willing to come to the table,then
maybe you consider another venue, which you can spend your money and,you know, have one
of these because, like Commissioner Vitousek said, you know, you have all this support behind
you,that,you know,that may be an avenue.
CARR SMITH: Yep,thank you. I support the motion for deferment. I think it gives you an
opportunity to, to look at this again after hearing all of this today and see whether there's another
approach. Anyone else? (Pause) Maija, could you do a roll call vote,please?
JACKSON: Yes, thank you. So the motion is to defer this Special Permit application.
Commissioner Vitousek?
VITOUSEK: Aye.
JACKSON: Commissioner Kealoha?
KEALOHA: Aye.
JACKSON: Commissioner De Franco?
DE FRANCO: Aye.
JACKSON: Commissioner Newberg?
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NEWBERG: Aye.
JACKSON: Commissioner Van Pernis?
VAN PERNIS: Aye.
JACKSON: Commissioner Yates?
YATES: Aye.
JACKSON: And Chair Carr Smith?
CARR SMITH: Aye.
JACKSON: The motion carries, seven-zero.
CARR SMITH: Very good. Thank you all - --hanging in there all these hours and—did you
want to say something,Zendo?
KERN: I just- - - all and apologize for the laborious hours that this has taken and to leave you
guys with still one item on the agenda. Sony—
CARR SMITH: That's all right—
KERN: Thank you,though.
CARR SMITH: Thank you.
The hearing was adjourned at 3:17 p.m.
Respectfully submitted,
Noriko Sauer, Secretary
Leeward Planning Commission
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LEEWARD PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
OCTOBER 15, 2020
A regularly advertised hearing on the application of DPM ACQUISITION LLC DBA DIAMOND
RESORTS INTERNATIONAL (FORMERLY PACIFIC MONARCH RESORTS, INC.)
(AMEND SMA 388)was called to order at 1:56 p.m.via live-stream online meeting, with
Chairperson Nancy Can Smith presiding.
COMMISSIONERS IN ATTENDANCE: Nancy Carr Smith, Barbara DeFranco,Perry Kealoha,
Mark Van Pernis, Michael Vitousek, Faith "Faye"Yates, and Max Newberg (from 2:05 p.m.)
ALSO IN ATTENDANCE: J Yoshimoto,Esq. (Counsel for the Commission), Michael Yee
(Planning Director),John Mukai,Esq. (Counsel for the Planning Director), Jessica Andrews
(Planner), Jeff Darrow(Planning Program Manager),Alex Roy (Planner), Tracie-Lee Camero
(Planner), Rachelle Ley (Secretary to the Planning Director), Kim Tanaka(Secretary to Boards
and Commissions) and Noriko Sauer(Leeward Planning Commission Secretary)
APPLICANT: DPM ACQUISITION LLC DBA DIAMOND RESORTS INTERNATIONAL
(FORMERLY PACIFIC MONARCH RESORTS, INC.) (AMEND SMA 388)
Application to amend Condition No. 2 (Time to Complete Construction) of Special Management
• Area Use Permit No. 388, which was issued in 1998 to allow the development of a
commercial/condominium complex and related improvements on 76,739 square feet of land. The
property is located on the makai side of Ali`i Drive bounded by Ali`i Drive and Kahakai Road, south
of Royal Kona Resort and north of Kona Reef Condominium, Pua`a 3rd,North Kona, Hawai`i,
TMK: (3) 7-5-018:011.
Secretary's Note: "---" indicates indiscernible speech due to internet/technical difficulties or
simultaneous talk.
CARR SMITH: It's 1:56, and we'd like to move on to Agenda Item number 2. Applicant is
DPM Acquisition LLC dba Diamond Resorts International, formerly Pacific Monarch Resorts,
Incorporated. This is to amend SMA 388: Application to amend Condition 2, the time to
complete construction, of Special Management Area Use Permit 388, which was issued in 1998
to allow the development of a commercial/condominium complex and related improvements on
76,739 square feet of land. The property is located on the makai side of Ali`i Drive bounded by
Ali`i Drive and Kahakai Road, south of Royal Kona Resort and north of Kona Reef
Condominium, Pua`a 3rd,North Kona, Hawai`i. TMK is (3) 7-5-018: Parcel 01L
Staff? Jessica, you are going to present for us on this one. Thank you.
ANDREWS: Yes, thank you, Chairwoman. I'm going to start off by sharing my screen—let's
make sure that it shares properly here. Okay, is everybody seeing this initial introduction
screen?
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EXHIBIT E
t i
CARR SMITH: I believe so. Thank you.
ANDREWS: Thank you. So, as you said, the applicant is DPM Acquisition LLC dba Diamond
Resorts International, and this is an application to amend Condition number 2 of Special
Management Area Use Permit number 388.
Here we go. So what you are seeing is the location map. The project site is in Kailua-Kona in
the Kona district. The project site here is outlined in red.
The applicant is requesting to amend Condition number 2,time to complete construction, of
Special Management Area Use Permit number 388, to grant a five-year time extension.
SMA 388 was issued in 1998 to allow the development of a commercial/condominium complex
and related improvements. The most recent design, which was granted final Plan Approval in
2017,proposes four levels of resort timeshare units above an existing concrete parking garage
for a total of 46 three-bedroom units,two of which are ADA accessible.
This map shows zoning for the project site and the surrounding area. So the project site is zoned
Resort Hotel that's the V-.75, and the project site is outlined in red. And you can see that there
are, there is a whole variety of zoning nearby ranging from Residential Single-Family to CV,
which is Village Commercial,RM is Multi-Family, and there is some Ag further mauka from the
site.
The entire area around the site and the site itself is designated Urban State Land Use.
And the General Plan designates the site as Resort Node, with a small portion being Open Area.
Nearby this site, there is also Medium-Density Urban designation.
This is the site plan, the proposed site plan,which was provided by the applicant. This was
included, or this is the site plan that was part of the Plan Approval, the final Plan Approval that
was granted in 2017. So,you can see their roof plan of the site proposal here.
These are the proposed elevations that was part of the same package of drawings from 2017.
Proposed perspective views that were part of the plans showing the four levels condominiums
above the existing garage level.
And this is the existing aerial view. The,what you are seeing inside the blue outline is a
concrete pad that's existing at the site,which is the parking garage.
And here you can see it as seen from Ali`i Drive. On the left is a photo facing north on Ali`i
Drive; the project site is on the left. And on the right side of the screen is facing south, so the
project site is on the right.
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EXHIBIT E
And this is a turn,this is a view of the turn from Alii onto Kahakai Road. So that would be the
entrance to the parking garage. And then this on the right side is a view of the property from
Kahakai Road, looking mauka.
The planning director's recommendation is approval with conditions. That concludes my
presentation. I am happy to address any questions from the commissioners.
CARR SMITH: Thank you, Jessica. If you could close your presentation, I'd appreciate it.
ANDREWS: Yes, let me—
CARR SMITH: Thank you very much. Question, Commissioners? Mr. Van Pernis.
VAN PERNIS: Could you go back to your presentation, please?
ANDREWS: Yes,just one minute, let me—
CARR SMITH: What was it that you want to see, Mark?
ANDREWS: Which slide?
VAN PERNIS: Let me try to ask question without the presentation. I noticed that none of the
drawings provided by the applicant showed the office building,which is built makai of the
project on basically the same property, or indentation of the property, so that the office building
is surrounded on three sides by the subject property.
ANDREWS: Yes.
VAN PERNIS: Were you aware of that?
ANDREWS: Yes, that's a separate parcel. That's been a parcel - - -
VAN PERNIS: Yes, it is. Are you aware of why the applicant didn't include that in the
drawings?
CARR SMITH: Does the applicant own the parcel?
ANDREWS: Not to my understanding. It's a separate parcel, separate TMK.
VAN PERNIS: Yes, separate ownership. And do you know when that office building was
constructed?
ANDREWS: I don't know,that being not part of the project site.
VAN PERNIS: It was after the original application of this property, isn't that true?
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EXHIBIT E
ANDREWS: Yeah, so, again, I don't, I don't know the history of that office building that is not
part of this project site.
VAN PERNIS: The applicant has, or the applicant's predecessor from whom it purchased, built
certain improvements on the property, including a parking garage, right?
ANDREWS: Sorry I didn't understand that question. Could you repeat it?
VAN PERNIS: The applicant,be it Diamond or its predecessor seller Monarch, built certain
improvements on the property, right?
ANDREWS: On the subject—
VAN
ubjectVAN PERNIS: Yes, on the subject property.
ANDREWS: Yes, there has been, there has been work done over the course of the past years.
That's correct.
VAN PERNIS: Do you know when that work was done?
ANDREWS: If you look in the background,there are some—let's see, it would be the parking
garage that you are talking about. I believe that was done in about 2008 and 2009, but the
applicant could probably address that, more specific dates to the exact date. There were building
permits pulled for that work.
VAN PERNIS: As per the original approval, weren't the applicants required to improve the
roadside with sidewalks and gutters, and improve—on Ali`i Drive—and improve Kahakai Road?
ANDREWS: Well,we can look to—you are asking me about the original conditions.
VAN PERNIS: Yes.
CARR SMITH: Item number 4,the Condition number 4 addresses that.
ANDREWS: Yeah, on the original permit,that was Condition number 6 there, "Ali`i Drive and
Kahakai Road shall be improved along the property's frontage with curb, gutter, and sidewalk
construction,pavement widening, drainage improvements, and relocation of utilities along the
Ali`i Drive and Kahakai Road frontages meeting with the approval of the Department of Public
Works—"
VAN PERNIS: So they built a parking garage but not those improvements for the public. Is that
right?
ANDREWS: That's what has happened so far, Commissioner.
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EXHIBIT E
VAN PERNIS: And isn't it true that both tourists and locals walk along Ali`i Drive on that side?
They can't walk on the other side because of the walls and construction at the road. Isn't it true
that they walk, or try to walk where they are supposed to be and cannot---the sidewalk in front
of the Hilton Hotel? - - -hotel was there?
ANDREWS: Yeah, as far as the condition,what I,can say is the applicant is expected to comply
with the condition as stated.
VAN PERNIS: By when?
ANDREWS: That's part of what's being approved is whether there is a time extension to do all
of the work.
VAN PERNIS: So they partially built but didn't do the improvements to the roadside. Is that
correct?
CARR SMITH: So it's one of the conditions, Mark, and you want to know when it's going to
happen? Is that—
VAN
hatVAN PERNIS: Yes.
CARR SMITH: Okay, let's ask the applicant that when we get a little further along. Thank you.
Any other questions from the commissioners for staff? (No audible response) Okay,thank you
very much,Jessica, appreciate it.
ANDREWS: No problem,thank you.
CARR SMITH: Oh,Jessica, I did want to ask you if you had any comments or anything else to
say because of the testimony that was given, any response.
ANDREWS: Because of the public testimony?
CARR SMITH: The testimon-the public testimony that was given earlier.
ANDREWS: I personally don't have responses to that. I'm sure that the applicant may be able
to address some of the testimony.
CARR SMITH: Okay,very good, thank you.
ANDREWS: Sure.
CARR SMITH: All right, moving on to the applicant. Mr. Fuke, you are here on behalf of the
applicant. Nice to see you again. Evan Oue—am I saying your last name right, Evan?
OUE: Oue, yes,that's correct.
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EXHIBIT E
CARR SMITH: Okay. And Kim Ishibara?
OUE: Yoshimoto.
CARR SMITH: Yoshimoto, okay.
K. YOSHIMOTO: Thank you, Chair.
CARR SMITH: You're welcome. And that's it, right? That's your group? Is there anyone else
here for your, on behalf of the applicant?
FUKE: That's it, Madam Chair.
K. YOSHIMOTO: Yes.
CARR SMITH: Okay,very good. Could you folks please raise your right hand? Do you swear
or affirm to tell the truth before the Planning Commission today?
FUKE: Ido.
OUE: Ido.
K. YOSHIMOTO: We do.
CARR SMITH: Very good,thank you. You received the background report and the conditions,
correct?
FUKE: Yes.
CARR SMITH: Okay. You can go ahead and let us know what you think of those, the response,
and give us any other presentation that you'd like.
PUKE: Sure. Good afternoon, Madam Chair, Members of the Commission. Again, for the
record my name is Sidney Fuke. I'm the planning consultant for the applicant. I've been kind of
retained indirectly by the attorney,Ms. Kim Yoshimoto and Evan Oue, whom you introduced
earlier. So, the attorneys—if you have any questions regarding the land ownership,the applicant
themselves, they've been in the position to answer. My role is essentially just to discuss the
planning related issue.
In specific response to your question about whether the applicant has had a chance to review the
staff's background report and the recommendation, the answer is yes, and I'm happy to say I'm
personally very relieved that the staff's recommendation in this count is a favorable one unlike
the last one we had to go through, so I'm very,very relieved. Thank you very much,Planning
Director and Jessica.
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EXHIBIT E
I'd like to,you know,just give somewhat of the history and then directly kind of answer
Commissioner Van Pernis's question. As I recall, the existing building that has been straddled
by this property was there when the initial permit was secured. And if I recall correctly, it was a
real estate office by C. J. Kimberly. Whether she is currently there or not, I'm not really sure.
So all of the improvements that you see there like the foundational work there, it's kind like they
have occurred subsequent to the,you know,the existence of the real estate office. Normally—
you know, Jessica had explained what,the final Plan Approval was granted,the one in 2017—
and so, if you look at it from the fact that the property is already zoned Resort, it's within the GP
Resort area, consistent with the Kona Community Development Plan, so on and so forth, that if
you have a property along those lines, then very simply, you know,you need to have like Plan
Approval. And Plan Approval is a process that is issued by the, you know, it's handled by the
PlanningDepartment. Their role, you know, on a Plan Approval, is essentiallyto decide whether
p pP �
the project use is consistent with the zoning,you have the required setback, you have the
required parking, landscaping, so on and so forth. And once you secure your Plan Approval,
then your next step is to go straight into your construction permit, and that will be your grading
and your building, electrical, plumbing, so on and so forth. In this situation, you know,the
reason why we are before you again is like, it's the Special Management Area permit
requirement. And just to give the Commission a 30-second understand- sharing, rather, of the
SMA law, it was passed in 1975 by the state, and basically it was designed to provide special
control, you know,within area along or approximate to the shoreline, and the law delegated the
enforcement responsibility to the counties. So, you know, under Rule 9, the Commission's Rule
9, you know, you have a way that the boundaries are established, and you have the permitting
process. And so, in situations like this, your rules call for having the planning commission make
the decision on a Major SMA permit. Essentially, however, the SMA permit,the rules and
regulations relating to SMA permit basically want to make sure that, you know,you don't,the
project does not degradate the coastal area, it properly addresses historical, archaeological issues,
it's got to make sure that it's consistent with the General Plan and the zoning code,there is an
appreciation for the protection of native Hawaiian rights. So these are your, all of your,the
guidelines and the criteria, from which then a decision is made either by the planning director for
a Minor SMA permit or by the planning commission for a Major SMA permit.
I'd like to kind of like segue just a bit and share with the Planning Commission a very significant
judicial decision that was rendered by the Intermediate Court of Appeals back in 1993. The
planning, it was called—and I'm sure that Commissioner Van Pernis being an attorney is well
aware of that decision—back in 1993 the county planning commission had denied an SMA
permit for a two-story office building,proposed office building on the corner of Kuakini
Highway and the Seaview Circle, and that property was already zoned Commercial,they came in
for an SMA permit, then the commission, because of traffic-related kinds of concerns raised by
surrounding property owners, they,the commission in their wisdom denied the permit. So the
person, the applicant, Larry Topliss—not topless, I mean, L-I-S-S—so he had appealed, then
finally went all the way to the Intermediate Court of Appeals. And essentially what the court
said was that—and I'll just kind of read it to you—it just says that traffic from a development
within the SMA is not shown to have a substantial effect on the coastal environment,then it
cannot be used as a basis to deny the SMA permit. And so as a result, if you look at it,you
know, from that standpoint, and you look at your laws for like zone change time extension, like
the one,you know,we just went through on the Pua`a/Suffolk, there was already a requirement
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EXHIBIT E
for a traffic impact analysis report,that is called for because you are trying to amend the zoning.
As it relates to SMA, however,there is no statutory requirement for a traffic study, you know.
So that's - - -is a major difference.
So, essentially, what you are looking at here is now, looking at the guidelines for, you know, for
an SMA permit, and take--- lenses for a zone change. So the reason why I say this is it's very
critical, I mean,you look for a time extension as it relates to SMA versus time extensions for
zone change, you have different kind of lenses that you pretty much,you know, must wear. So I
say this because like the public's, you know, comments both the written as well as this morning's
testimony, they generally, you know, follow along the line of like visual,you know, it's going to
block my view, from whether it's Kona Mansion or Kone Reef, it's excessive traffic, the noise,
we don't need more commercial developments, it's unsightly, and there is some safety issues; I
think that,you know,the applicant has had a chance to review all of these concerns, they
understand them, and but the critical issue, you know, from an SMA standpoint, do those kind
of concerns necessarily rise to the level that,you know, that this project violates the SMA goals
and policies and objectives? And we would say no. You know, like, specifically, if you look at
from an archaeological, cultural perspective, you know,there is, none of those issues. We don't
have a sea level rising or erosion concerns because this is definitely not a shoreline parcel. I do
recall like one of the testifiers saying that, you know, it's going to have an effect on Honl beach;
but Honl beach,that area, is located south of the Kona Reef project, and so it's away from this,
so it has none of this kind of coastal erosion sea level rising issue. In terms of like shoreline
access,this is not a coastal access; however, the fact that the project,the existing conditions
already require that the project,before it can get occupancy, have curb, gutter, sidewalks fronting
Alii Drive and also down on Kahakai, you know,I think, would help out rather than deter the
public access question. I think that the planning director's recommendation is really like on
point because you are looking at it purely from the standpoint of whether the project meets the
SMA guidelines.
Now come to kind of explaining a little bit to,you know, the entitlement issue on the project.
The first SMA permit for the project was approved in December of 1998, so it was granted a
five-year construction window. They didn't do it,but in the meantime in 2002 the property was
then purchased by a group called Pacific Monarch Resorts. So they came in for a time extension
that was the first-time extension, administrative time extension, in 2002. They secured final Plan
Approval, and then they got the planning commission extend it, which would have been the
second-time extension in 2008. But Pacific Monarch did not necessarily sit still; what they did
was they made quite a bit of improvements to the waterline along Walua Road, it paid water
commitment fees, they also applied for a foundation building permit,they had, built an elevated
slab. Those all occurred, as your staff had indicated, from about 2007 to 2009, during that
general period. The plan sets that were reviewed at that time showed that the access would come
in from the makai side of the project, and so that's where would be the entrance to the project,
and so that's the parking lot entrance. So the parking lot is not coming from Ali`i Drive, it's not
coming from the mauka-makai road to Kahakai; it's basically coming from the, you know, makai
side of the building. So in the meantime Pacific Monarch Resorts, you know,they had some
financial problems, and the one that picked up the ball is the applicant, Diamond Resorts
International. So they came in and purchased, or acquired, the total interest back in 2013.
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EXHIBIT E
So in all fairness, like, you know, I realize that you are looking at the period of 22 years from
1998 to where we are right now, but effectively, the applicant had only like control of the last six
years. And I respectfully request that the commission take that into consideration when you
make a decision. So,bear in mind now the applicant gets who control of the property in 2013,
they had a window, so they applied for one extension in 2014. So that puts it—because they just
acquired it—you know, 2014 to 2019. The difficulty in that situation was that during that period,
when the property was acquired, it was a publicly traded company, and then they gradually
transitioned to private. And so for the first two or three years during the transitional period,they
really couldn't do much until that,that business transition, you know, was finalized. It got
finalized in 2017, so they applied for the Plan Approval,I think as Jessica had mentioned, you
know, with the timeshare,parking lot, four-story structure, so on and so forth. So now, you
know, we are taking you to the year 2017, and you have to understand that they have to finish
construction by the year, May of 2019. So it was something like about a year and half window,
within which to finish up the construction. But they had a lot of things to do,because, bearing in
mind that they had foundational, the previous developer had some foundational work done,you
know, starting the parking area and all that stuff. So they had to do their own evalu-the current,
Diamond, Diamond Resorts, had to evaluate to see whether they can or cannot use the existing
improvements. So it took a lot of time for them to do that kind of evaluation, and they knew that
they weren't able to complete it before May of 2019. So as a result, they applied for the
extension, and this is where we are right now. So,you know, like, and I think that Kim and
Evan, you know,the applicant's attorney, can attest to the fact that the developer is, you know,
ready, willing and able to do the development. They've spent like over 30 million dollars for the
last ten years, you know, within the State of Hawaii. It's a large timeshare company. They
have offices in the Royal Kona Coast Resort. You know, and obviously, if you have only like
about a year and half window before it expires, you know, they can't really do much, so what
they were doing was they were kind of like holding off pending the outcome of any, you know,
like this time extension request.
I think that the only thing that I would like to add, and, you know, and having this further
discussion with the owner this morning,you know, like as the public was testifying,there was a
lot of concerns relating to like the building is unsightly, people were kind of like doing drug
activity,you know, all this kind of stuff, and the owner, when I spoke to the owner's rep in, who
listen in Florida this morning, he said that they are committed to making interim improvements,
you know,until they can get,you know, like the building permit finalized andstart the
construction. They are willing to do, you know,to address, do something to address the safety
and the unsightly visual kind of comments that were made. So what we would like to kind of
propose is like a condition that would essentially state as follows: that"the applicant shall submit
a site maintenance program to the Planning Depaituient within 60 days from the effective date of
this third amendment. The said program shall also include an implementation timetable and
shall terminate upon issuance of a building permit pursuant to this SMA permit." So, essentially
then, you know, like one of the person testified saying that,you know, we try contacting a
certain-certain person, and nobody answers the phone, you know, that kind of stuff; well, you
know, we would visualize that this site maintenance program would include contact information:
It would be no different than like how, I think,the planning commission had required for like on
geothermal permits or certain activities, you have like contact,-contact information provided. So
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EXHIBIT E
this is in concept,you know, what the applicant would like to propose is an additional condition.
Aside from that, I mean,you know, we are prepared to answer any questions that you may have.
CARR SMITH: Thank you, Sid. Do you have anything to add to what else that maintenance
program would consist of besides contact information?
FUKE: Well, not specifically,but,you know, like the owner has heard about that, the issue of
like graffiti and people illegally,you know,tramping through the property,trashing it, and so it's
unsightly. And I think it's just really like just trying to be a better neighbor, and that's the whole
objective in coming up with a program like that that will be vetted with the Planning
Depattment.
CARR SMITH: Thank you. Commissioners, questions? Faye, go ahead.
YATES: Okay. Mr. Fuke, my first question I have for you is, do you live in Kona?
FUKE: No,I live in Hilo—
YATES: —live in Kona?
FUKE: I live in Hilo.
YATES: Oh, in Hilo?
FUKE: Yes.
YATES: Okay,just wondering. It just seems like—and this is along Ali`i Drive, right?
FUKE: Correct,yes.
YATES: And,you know, it seems like in the last few months we've had quite a number of
people who have bought property along Ali`i Drive and had applied for permits, and they were
going to build,they were going to build,then they couldn't build, then they sold,then they sold,
then they, etcetera, and then we have this problem of, you know, congested Ali`i Drive and,you
know, having hurricanes, etcetera, etcetera. And here we want to build another one there, which
is right on the highway there, and we are talking in excess of—it said 119 parking stalls—so I'm
assuming they'll have a hundred-plus cars there. So, again,we have the problem of traffic
congestion. And if these people,who had bought it in 2017,were so anxious about building
there, why didn't they start in good faith? I know you are saying there are a lot of things that
have to be done,but in good faith, would you not have thought that they would have started
something? And then,you know,then they can show us what, this is what we've done, you
know, we've cleaned up the place,we've done this, this,this. But it doesn't seem like that. And
every time,there is always somebody coming in,they want to extend another five year, extend
another five years. And then, I'm just wondering about the people who live in that area. You
know, it's like, it is very congested there. So I think that's a good reason, you know, for people
to be upset about that.
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EXHIBIT E
FUKE: Yeah, I can understand, I can understand the traffic issue that you raised and the
neighbors also raised, and so that's why I have to kind of like preface my presentation by noting
that, you know, like the permit that we are going for right now is not a zone change permit, it's
not an extension for zoning; it's like for an SMA permit,whose primary policies and objectives
are kind of like coastal related.
And, you know, the other thing in terms of like,you know,the owner picking up the property
and why didn't they do anything within the last year and a half? I think I tried to explain that,
you know,they had some organizational issues, and so until that organizational issues, you
know, the company itself,were settled, and then from there they can kind of move on to
determining how to make the improvements. And the question was, the major question that they
had to ask themselves is that, do they tear down and restart again or do they do something that
takes advantage of something that's partially completed right now? So that's an evaluation that
they had to make. And at the same time they were faced with the deadline of having the SMA
condition stating that you had to be done by 2019. And if you have like less than a year to
complete the construction and not knowing where you are going to go if the extension is denied,
then it doesn't make sense for any reasonable person to spend money not knowing whether you
can complete the project within the window that's allowed.
CARR SMITH: Understood. Mike, I think you had your hand up next. Go ahead.
VITOUSEK: Thank you. My question is in regards to the applicant's—let's see—
nonperformance of the conditions. So,the reasoning, the justification stated in our
recommendation packet is that, "According to the applicant, there were numerous reasons [for
the delay],which include financial [fiscal] challenges with the previously proposed design of the
project that make it impossible to meet the current deadline [to complete construction]. After
assuming ownership of the property in 2013, Diamond Resorts had the opportunity to conduct a
feasibility study to determine the current actual cost for the original design of the project. The
study revealed that the actual cost exceeded the budget allotted for the project by a range of 20 to
30 million dollars." Is that, was that feasibility study done on the 2017 Plan Approval?
FUKE: Commission-- - can I—I'm not aware of the feasible study per se—so, can I defer that
question to the applicant's attorney who are based on O`ahu right now?
VITOUSEK: Sure.
CARR SMITH: Evan, would you like to respond to that, or Kim?
K. YOSHIMOTO: Aloha, Chair,thank you. So, from my understanding,the feasibility study
was conducted prior to the 2017 Plan Approval, but they were still, you know, and they currently
are still revisiting the design. So it was prior to that, in answer to your question.
VITOUSEK: So, would that have been satisfied by the design that the applicant submitted in the
Plan Approval?
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EXHIBIT E
K. YOSHIMOTO: Would that have been satisfied? I think---
VITOUSEK: Right, their concern was—hold on, one second their concern was that the
proposed, the permitted project was too expensive, and if that feasibility study was done prior to
the 2017 Plan Approval, one would assume that the project that they submitted for a Plan
Approval would be a project that they could afford to build.
K. YOSHIMOTO: Right, so I was assuming it was done before, but I need to confirm. But they
were looking for financing options during the entire process.
VITOUSEK: So I believe that that's completely material in the justification for nonperformance
in that either they submitted a Plan Approval application for a project, and then when they got
that Plan Approval back,they realized,wow,we can't afford that, which means they designed
the project that they can't afford, which is no one's fault but their own.
K. YOSHIMOTO: Well,they didn't design it; they inherited the project. So they did the
feasibility project once they acquired the project.
VITOUSEK: So the Plan Approval that was submitted in 2017 was submitted by the current
applicant, correct?
K. YOSHIMOTO: Correct, but again—
VITOUSEK: So the design had changed from the applicant, the previous Plan Approval by the
previous applicant to the current Plan Approval by the current applicant, correct?
K. YOSHIMOTO: Yes.
VITOUSEK: Okay, so the applicant submitted plans—
K. YOSHIMOTO: But let me, let me—
VITOUSEK: —for their construction, and those plans were approved by the county. The
discussion in hand is whether it's the applicant's fault whether they could afford those plans or
not. And my contention is that they've either redesigned that application and submitted a plan
that they can afford or they designed something that they can't afford; in either case, in my
opinion, that's the applicant's fault as a developer.
FUKE: I can, if I can kind of add to that—am I muted?
CARR SMITH: No, you are good, Sid, go ahead.
PUKE: If I can add to that like, Commissioner Vitousek, you know, Plan Approval—they did
retain the services of an architect, and so the architect basically just did the design taking off of
the existing foundational work, or the original plans, and so they had omitted like a significant
portion of the,you know, the proposed retail area,but the basic configuration was the same. So
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usually what happens is that,you know,Plan Approval just provides a broad design, and then
your next phase is,you know, like once that's done, your next phase is to really do the
construction drawings pursuant to the broad design. And so before they did the construction
plans, they did some preliminary investigation in terms of what the cost implication would be
between utilizing the existing improvements,the foundational work, or tearing down and starting
it. And so I think—I'm just kind of,you know, ---right now—but it's probably during that
phase when after the plans were, you know, from a design standpoint, was accepted,they were
starting to,the architects starting to work in the specific numbers, and kind of like decided like,
you know,this preliminarily might cost you this much. I think it's no different than any person
doing like a residential home; you know,you've got something this is what you kind of want,
and as you go through the process, you realize that, wow,this is too expensive, it's kind of
overbudget, so then you've got to kind of scale back. And I think this is kind of like where they
were.
VITOUSEK: So, I mean I totally get that, get the process that we are alluding to and all very
familiar with that, working in the development industry in Hawaii. I know very well that the
Plan Approval that goes into it,you've already baked in a certain amount of requirements that
then have to be detailed in the construction plans,but you've basically set your bar on what you
need to construct in that Plan Approval; you can't alter that after you've gotten Plan Approval.
So, again,you know, we don't have the developers here to be able to tell us one way or another,
but either they designed a project that they can afford or they've designed a project that they now
can't afford. But this is, this is their project that has Plan Approval on it, the current developer.
CARR SMITH: I think-- -
FUKE: Go ahead, Kim.
CARR SMITH: Jessica, I think you wanted to respond, go ahead.
ANDREWS: Yeah, it's more just pursuant to this train of conversation regarding Plan Approval.
The Plan Approval actually is currently expired, so—it expired in 2019—so they,the applicant
will have to resubmit plans, and maybe that will include a redesign, as Kimberly alluded to. But
there will be another round of Plan Approval review and another.final Plan Approval. So,just so
you know that the Plan Approval actually is expired right now.
CARR SMITH: Mike.
VITOUSEK: Sure,yeah, I mean,totally get that, that the Plan Approval is expired now,
because—and my understanding is the SMA permit is also expired now. Is that correct?
ANDREWS: Officially yes.
VITOUSEK: But what we are discussing is the reasons for nonperformance prior to the
expiration. Along those lines,though, I would like to discuss the duration of time between the
applicant's request for time extension,which came in prior to the expiration of the SMA permit,
until now when we are post-expiration of the permit. What is the reason behind that?
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EXHIBIT E
ANDREWS: I can kind of begin, and I'm sure Kimberly and Evan can chime in,but the primary
reason actually is related to making contact with SHPD regarding a comment that OP included in
their agency comments, and there was a series of months -- - and I'll let the applicant's agent
address this more,where they multiple times tried to make contact with SHPD. We as the
county Planning Department reached out to SHPD to try and receive more comments regarding
this project, but we were almost entirely unsuccessful in being able to contact them.
CARR SMITH: Kimberly, go ahead.
K. YOSHIMOTO: Thank you, Chair. Yes,we applied in November of 2018, and we were
proceeding with the process. And there was a lava tube found on the property prior to Diamond
Resorts acquiring it. And based on the, you know,the information we had,they ---it was filled
and, you know, I think it was in 2008 planning commission minutes, it was determined by the
planning director that there were no concerns. So,you know,this process kept evolving. We
thought that was sufficient,but then in working with Jessica, the Planning Department—and I
appreciate this concern—they wanted us to get a direct written confirmation as to SHPD's
perspective from SHPD. So we proceeded to do that. So we had to pause the timeline,which
created another really long delay for the developer. We tried to reach SHPD many times. We
were unsuccessful, as Jessica mentioned. So finally, we coordinated with I think it's Jessica and
Jeff, and because they were working with SHPD on a number of other projects, including ours,
with regards to these kinds of delays. And finally,we were able to get a letter this year; the letter
was dated March 2019, but we got it this - -. So from that point we've worked with Jessica to
continue this process.
CARR SMITH: Does that satisfy you, Mike?
VITOUSEK: Well, so, my question is then, are we dealing with an expired ordinance, I mean,
expired SMA permit, or is this,because there was delays from - - - government agencies, is this
still a valid SMA that can be extended?
ANDREWS: We might need Jeff or Michael Yee to weigh in, but we,this has been postponed,
so we've been considering it still as a current application. I'm not sure that totally addresses
your question, Mike.
VITOUSEK: So we are, basically, we are treating it as if it's not expired because of the delay
between the application and hearing back from the Historic Preservation Division?
FUKE: My understanding is that the application for a time extension was filed,was timely filed.
It's just that disposition of it is like, is past the deadline.
CARR SMITH: Jeff, did you want to weigh in?
DARROW: Sure. I think Jessica had talked about, as well as the applicant,when this came in, it
came in prior to, quite a distance before the expiration, and we had realized that there was this
issue that was being brought up regarding a lava tube, and it was concerning to us, and we
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EXHIBIT E
wanted to make sure that there was some sort of response from SHPD. And the applicant was
ready to proceed,but we had asked them to put the brakes on. We had made a number of
attempts to reach SHPD and request a comment letter. They had made a number of requests.
We had finally received a comment letter, and basically, they said that they had no objections, go
forward. And it was like, okay, and that was that. And that's our, Planning Department Exhibit
14.
CARR SMITH: Mike.
VITOUSEK: So, that letter from SHPD that reviews the time extension,that is the only thing
that they provided in order to get any documentation that Condition 5 had been adhered to in the
treatment of the lava tube?
DARROW: That's exactly what we asked for. We were saying, look, our condition is very
explicit; it says when you come across these things, you need to stop,you need to contact SHPD
and us, and you need to,you cannot proceed until that's resolved. And we wanted some sort of
response from SHPD that they had done that, and—because we had nothing in our files.
VITOUSEK: Yeah—
DARROW: Again, SHPD,the only thing we got from them was our,was that March 14th letter.
VITOUSEK: Which says that they are not reviewing it because it's a paper transaction, and they
will review it if there is ground disturbance.
DARROW: We had, we - - - something specific to the lava tube. That's what we wanted.
VITOUSEK: Yeah—
ANDREWS: Mike, we actually,we actually received that letter, you know, in March of 2019, I
believe it is, from SHPD, and we took the time,you know, as Jeff said,we were concerned,we
actually reached out to SHPD in this series of contacts saying, are you sure this is your final
assessment, we would like a little more elaboration.
VITOUSEK: Yeah—
ANDREWS: There was, there was nothing.
VITOUSEK: Wow,that's,that's really too bad. Okay,well - - -for my purposes then, I feel
like we have to treat it as if the applicant is in time.
DARROW: Yeah.
CARR SMITH: Thank you, Mike. I think I saw Max's hand up next. Go ahead, Max.
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EXHIBIT E
NEWBERG: Thank you, Madam Chair. I apologize, I think I might have stepped into the
meeting a few minutes late there. I don't think this would fall into a Board of Ethics issue, but
just on a clarity, I did meet with Boe Greene with Diamond Resorts when they were at the Kailua
Village [Design Commission] presentation for their design, but have had no communications
with him since. I just wanted to make that as a disclaimer.
My issue, one,to echo Commissioner Vitousek's,you know, seemingly maybe a submission on
a project plan that far exceeded their budget, for myself, seeing that original plan that looked
very high-end for the area here on Ali`i Drive, and,you know, obviously,there is going to be
something resubmitted. My hope with that design thought in process they were proposing could
possibly create a renaissance of Ali`i Drive,you know, to kind of bring it back to the lost or what
it once was back in the 70's when it was a newer resort area.
With all those things said,I would like to hear more about the site plan. It may be proved to be,
might be a little bit early for that,but my concern is, in looking at the site, the location and the
issues that it has had(indiscernible–noise)to go through and most likely have to demo,
demolish what is existing, and then within the current plan of hopefully having a safe and hard
barrier that would be lit and possibly with security,proceeding into construction. I don't see—
that's my only concern with this area,you know, listening to the complaints and concerns, and
then also looking at as a, as a process through construction. Looking at the elevations from street
level to the top of existing concrete,you know—it's four blocks away from where I currently
am—and it's logistically difficult. So,you know,besides the concern of submitting a- - -
(At this time, around 2:50 p.m., there was an internet connectivity issue in the area where the
WebEx host was located, which disrupted the YouTube live-streaming and recording,for
approximately eight minutes.)
LEY: - - -we lost feed, had to like restart—
CARR
estartCARR SMITH: Okay—
LEY: —YouTube stream, so if anybody was watching,they are going to have to reconnect- - -
they reconnect. If they just, you know,refresh their browser, it will come back up.
CARR SMITH: Okay. Thanks, everyone, for your patience. I guess this is as good a time as
any for me to ask the commissioners a question here. So you can see on our screen, we have
Wendy Reinoehl; Wendy was, evidently she signed up for,to be a testifier and she signed up in
time, but she just got missed by accident from getting put on the list. I don't believe she was on
this morning,because I didn't,I don't remember seeing her name and I did ask if there were any
testifiers that I missed, and nobody spoke up; however, she is here, it's this agenda item. And so
it's up to you guys if you want to open public testimony to hear Wendy. Go ahead, Mike.
VITOUSEK: I move to reopen public testimony to allow Wendy Reinoehl the opportunity to
provide her three minutes of public testimony.
CARR SMITH: Okay,very good.
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EXHIBIT E
YATES: Second.
CARR SMITH: Faye,thank you. Second by Faye. All in favor?
COMMISSIONERS: (Inaudible response)
CARR SMITH: Anybody opposed? (Inaudible response) Okay,.Wendy, are you there? Let's
hope she is there. Her placeholder is there. Wendy, if you are available—
VITOUSEK: She just sent in a note that came up on the side that says that she doesn't have a
microphone, and that she is sorry.
CARR SMITH: Oh, I see that now, okay. All right. Well, we tried.
VITOUSEK: In that event, I'll make a motion that we close public testimony.
CARR SMITH: Thank you—
DEFRANCO: Second.
CARR SMITH: —motion to close, seconded by Barbara. All in favor?
COMMISSIONERS: Aye(and inaudible response)
CARR SMITH: Thanks,you guys. Okay, so,where were we?
VAN PERNIS: I was asking questions.
CARR SMITH: Okay.
VAN PERNIS: There was no traffic study in the 1990's with the prior owner. Apparently,there
is no study now. The traffic 22 years later is much heavier, and this project is across from the
intersection of Ali`i and Walua Road, as well as Kahakai. So I'd like to ask the applicant—and
those are substandard roads,by the way—I'd like to ask the applicant whether he would agree to
do a traffic study of this project's impact now and in the future on the traffic on Alii Drive,
Kahakai, and Walua, and the intersection of Walua and Alii. I believe a traffic study would be
required, if there was a new application. Are you going to do a traffic study and defer this so we
can see a traffic study? Twenty-two years later?
CARR SMITH: Sid, are you there? I don't see you. Or do you want Evan to—
PUKE: Here I am.
CARR SMITH: Okay there you are—go ahead, if you'd like to respond.
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EXHIBIT E
FUKE: Sure. I think.I had indicated earlier that a traffic study was not required,you know, for
SMA applications. They would be definitely required for a time zone, rezoning time extension,
you know,provided that you have like 50 or more movements. And I was,you know,that's the
reason why I kind of pointed out to the Topliss Intermediate Court of Appeals decision that
provided guidance to planning commission in terms of how to address traffic as it relates to
SMA.
CARR SMITH: Okay.
VAN PERNIS: The application is concerning the Special Management Area Use Permit number
388, not an SMA. So I'll take the answer as a no;you are not willing to do it regardless of that
court decision you referred to.
Next, Diamond bought the price from, did they buy the property from Pacific Monarch or
someone else?
FUKE: I'm going to have to defer that question to the attorneys.
K. YOSHIMOTO: Pacific Monarch. Commissioner, it was Pacific Monarch.
VAN PERNIS: When Diamond bought the property, did the price and cost, or the price was
determined, as well as the terms of sale; in other words, no claim of prior misrepresentation by
seller, right?
K_ YOSHIMOTO: No,but I also want to—and I don't have all of the details—but Pacific
Monarch went insolvent because of the recession, and Diamond acquired a number of their
assets, including this property.
VAN PERNIS: Diamond took on the risk of completion when they brought from Monarch,
right?
K. YOSHIMOTO: Sure, if you acquire a property, it's your property and you need to do what
you need to do.
VAN PERNIS: So just like Diamond decided whatever upgrade,whatever upgrade in design
cost that might add to the project, and they voluntarily assumed the risk of the feasibility study,
and one was to be conducted, and one might reveal, correct? A feasibility study was not a
condition of the purchase.
K. YOSHIMOTO: We acquired the property in 2012.
VAN PERNIS: Without a condition of learning feasibility study, is that right?
CARR SMITH: Without what?
K. YOSHIMOTO: (Low-volume private conversation with Mr. Oue)
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EXHIBIT E
VAN PERNIS: So the cost of construction was your risk and should be no surprise. Isn't that
right?
K. YOSHIMOTO: I'm sorry, Chair, I couldn't und-I couldn't—
VAN
ouldn'tVAN PERNIS: The cost of construction was a risk assumed by Diamond and should be no
surprise whatever it is. Isn't that right?
K. YOSHIMOTO: I suppose so, but circumstances change every year and through different
economic cycle.
VAN PERNIS: And the increase in price over,natural increase over five or ten years or more
was assumed by Pacific - - - look into it, and then assumed by Diamond(indiscernible–noise).
Isn't that right?
K. YOSHIMOTO: I'm sorry I- --
CARR SMITH: Could you repeat that, Mark?
VAN PERNIS: If there was an increase in cost over the period of time on Pacific first built,that
increase over five or ten years or more was something that Diamond assumed.
K. YOSHIMOTO: Yes. I think we can all agree that's a true statement.
CARR SMITH: - -- can we move on, Mark? Is there—
VAN PERNIS: There is more.
CARR SMITH: —something else that you don't already know that we can maybe find out from
these folks?
VAN PERNIS: Well, if you let me finish. Your application referred to the feasibility study as a
reason why you wanted another delay. But then all these things, the cost, the time involved, and
the upgrades, and—well, I wouldn't—did you assume that risk?
K. YOSHIMOTO: So I don't know what you mean, Commissioner, about application with
regards to the feasibility study. There have been a number of reasons why there have been a
delay. Sidney initially spoke to some of the corporate changes; it went public in 2013, it went
private in 2016—
VAN PERNIS: - -K. YOSHIMOTO: —that's just part of what happens in a corporate environment. Sometimes
there is a change in who controls its assets -- - changes in terms of construction costs and what
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was feasible certainly. We had agency issues. So there have been a number of reasons why
there have been delays outside of just the initial acquisition and the risks we took on at that time.
VAN PERNIS: Going public to private, and when and how much you had credited, is something
other than one's control, right?
K. YOSHIMOTO: Uh—
VAN PERNIS: No one forced them to go private or prevent them from getting credit whenever
they thought might be a good idea.
K. YOSHIMOTO: I don't think that decision is under, in any one person's control;that is a
larger decision than I can speak of-
VAN PERNIS: Well - --I don't mean to interrupt. If I interrupt,please let me know.
CARR SMITH: Okay, can we move on? Do any other commissioners have questions?
VAN PERNIS: There are several other questions I'd like to complete—
CARR SMITH: Well,we need,you can't just go on and ask 20 questions when there are other
commissioners who might have questions as well. They might have one or two. You can't—
VAN
an'tVAN PERNIS: While they might have one or two, I'd like to hear the answer. Now, the Kona
Reef neighbors got 15 years of the nothing, and you want another five years,no curbs, gutter,
sidewalk, one of the substandard roads even though they are heavily used for walking traffic. Is
the applicant willing to install the sidewalk and other related improvements, if this matter is
further delayed?
K.YOSHIMOTO: Commissioner, you are speaking to the current condition that's already part
of the prior approval. Yes, certainly, certainly, if- - -
VAN PERNIS: You are willing to do it right away?
K. YOSHIMOTO: I can't—I can certainly go back to the client—I can't commit to a particular
date right now.
FUKE: You know, like normally, if I might, normally like outside infrastructure improvements
are done in conjunction with the project itself for a couple of reasons: One, it relates to cost; and
the other one is that if you make this off-site improvements and then you are going to bring in
heavy equipment that's going to result in the destruction or the relocation of improvements
already made, somehow it just kind of like doesn't make sense. And that's the reason why in the
original condition, which I think is a wise one, is to time the completion of the improvements in
conjunction with the, any use of the property.
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EXHIBIT E
VAN PERNIS: So you built the underground garage and the foundation, but you don't want to
build anything that might help the public like the roads and sidewalks that you are otherwise
required to build. Is that right?
FUKE: The project is—
CARR SMITH: Can I speak—
FUKE: The project is obviously like far from completion—and, Madam Chair, like if I might
want to make,you know, a request maybe of either you or your counsel,you know,I'm just
trying to see where some of these questions are leading to as it relates to the guidelines and the
objectives of the SMA.
CARR SMITH: I understand, yeah, and I—
VAN PERNIS:"-- -permit—
CARR SMITH: I wanted to comment because I thought the same thing that you did, Mark, I
thought why wouldn't they be doing this sidewalk ahead of time to benefit the community. But
if you think about what Max said, and if you think about the logistics of building this project,
you don't want people walking directly in front of it, underneath it. They need to have that space
to work-- -
VAN PERNIS: I think that,but—can I interrupt—
CARR
nterruptCARR SMITH: -- - don't interrupt me, Mark, please don't interrupt me, and I'm moving on
to—
VAN PERNIS: I'm sorry,I thought you were finished.
CARR SMITH: No, I'm moving on to other questions. Mike, go ahead.
VITOUSEK: - -
CARR SMITH: Mike, unmute.
VITOUSEK: Thank you. Also I just wanted to affirm what Commissioner Van Pernis said
about the—let's see—going public and then going private as being result of the applicant's
decision that was not outside of their control. You know,these are decisions that they made,that
affected their ability to do the project within the conditions (indiscernible–noise).
Moving on from that, you know, we are looking at a project where we've seen multiple revisions
and redesigns and are now again looking at another redesign. And my question is, at what point
does the redesign go so far as it is no longer in line with the existing SMA permit, and a new
SMA permit would be needed for this newly designed project?
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CARR SMITH: Does the county want to respond to that? Or Sid? Go ahead—
VITOUSEK: I'd love for the county to respond to that.
CARR SMITH: Yeah. Jessica, are you there?
ANDREWS: Yes, hi. So at what point, it would have to go beyond the bounds of the original
permit in order to, in order to require a complete resubmittal.
VITOUSEK: So, is that the parcel boundary, or is that the boundary of the footprint of the
proposed project?
ANDREWS: It would be the, it would be the proposed use; it would be the proposal for the
development, for the use.
VITOUSEK: That's not super clear in that if they are proposing a retail and condominium
project that house 48 units and now they are requesting an extension with language in here that
it's going to be a redesign, and we don't know what that redesign is going to be like. How, how
can we approve an extension when we don't know what's being proposed?
ANDREWS: Yeah, I hear your, I hear what you are saying exactly. It will have to, again, it will
have to go through Plan Approval, and Plan Approval is pursuant to the SMA Use Permit and
would have to comply within the bounds of the SMA Use Permit. So Plan Approval will not be
granted basically, if it doesn't meet what was described in the [SMA] Use Permit—
VITOUSEK: So the Leeward Planning Commission—oh, sorry, go ahead,I apologize.
ANDREWS: Oh,yeah, no,I just wondered if Jeff Darrow wanted to elaborate on that at all
based on when a new SMA Use Permit might be required.
DARROW: Well,just as what you had mentioned. It's, I mean,there is a number of factors that
can come in to play. If the application expands, usually that's the issue. Something goes beyond
what was originally requested,not less than but more than,whether it's more land area,whether
it's a greater project, a greater use. In this particular case, it appears that there are actually,they
have less units than what was originally proposed; they let go of the office and commercial, or a
majority of it. The other key factor that is unique in this particular application is time; very
rarely do we see an application that comes before us where we see somebody asking for a third
or fourth time extension. And this is the discussion that we had about a year ago when we went
through the talk about time extensions and permit amendments. And that was a thought about
the direction the Leeward Planning Commission was considering that there comes a point where
we need to change the rule to say that if you've gone beyond a certain amount of time, you need
to come back in with a brand new permit,not just a time extension request. Unfortunately,that
rule hasn't changed at this time. The other factor was that that would play in if the applicant
didn't come in within a timely manner; let's say that the time stopped a year or two,I mean,they
came in a year or two or three after the actual time. In this case they came in in a timely manner
to request a time extension.
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The other matter I wanted to bring up on this is that—and I know Sid has been touching upon
it—is the matter of traffic and its relationship to the SMA. There was that court case,the Topliss
case, that you may be familiar with, that we put in our applications at times to refer to the
relationship between traffic and SMA approvals. Unless there is a clear nexus regarding traffic
impacts to the SMA,usually that is not something we can incorporate. It's unique to see this
condition in here, Condition number 4,where it's requiring the applicant to put in curbs, gutters,
sidewalks, and other improvements; in an SMA permit,without a change of zone, that is usually,
nowadays that's a tough,that's,there is a line there that we may sometimes get challenged on.
But in this case,the applicants were amenable to it when it originally was approved. Topliss I
think came after that. And the reality is without curbs, gutters, sidewalks on this project, it
would not be a safe project; it would not be a good project. But to be able to require the
applicant to do a traffic study and out of that traffic study require them to do improvements,
off-site improvements, that's where our challenge comes at times with just SMA permits.
Normally, it's with change of zones where you are increasing the density or you are—in this case
this is zoned Resort,they are coming in for just the SMA permit.
I didn't mean to go off track there. I wanted—the main issue that you were asking is when do
we really require a new permit. And, again, at this point it would be the commission's request.
In this particular case being—if the commission needs additional information to be able to come
to a decision, and the only way to do that is to have particular information that has not been
provided to be provided as part of the application, or to come in with a new application—in this
particular case, the director has recommended that the application is sufficient, and that the
conditions are sufficient, and he is recommending approval.
CARR SMITH: Thank you, Jeff.
VAN PERNIS: I have two amendments I plan on offering, and I'd like to question about that
since you cut me off.
CARR SMITH: Since I cut you off—sure, go ahead, Mr. Van Pernis.
VAN PERNIS: Thank you. Electric vehicles are going to come in- - - increase in the future. A
lot of car companies are buying more and supplying more, and rental cars are your timeshare
clientele. This project originated in the 90's onto different hands. And it's time that developers
and this commission get into the 21st century. Would the applicant be willing to agree to
installing four electric vehicle charging stations as common elements to the condominium during
initial construction? And I point out that retrofitting electric charging stations is much more
expensive than putting them in originally. Representative of the developer answer that question?
FUKE: Madam Chair, is the question whether the applicant is willing to accept a condition that
mandates electric charging stations? Is that the question?
VAN PERNIS: Yeah.
CARR SMITH: Is that already a condition? Is that what you are saying, Sid?
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FUKE: Whether- - -
VAN PERNIS: - - -not a condition.
FUKE: Whether that's the request that Commissioner Van Pernis is making,whether the
developer is willing to have that as a condition?
VAN PERNIS: Yes.
CARR SMITH: I think so.
FUKE: Can we have a moment to kind of confer on that, and in the meantime having, continue
with his other request?
VAN PERNIS: Okay. The other matter is that I don't see another five years will result in
construction. It is conducive to a sale. And I would like to know whether a sale or further delay
for sale is in the works. The,you can all talk about that at the same time.
The last issue is, will the applicant agree to filing a new permit or additional permit to be
reviewed by the Planning Department director, the planning commission,then go to County
Council Committee on Planning, and the full Council, if the project doesn't get built in the next
five years?
CARR SMITH: Okay,who wants to answer? Sid? Evan? Kim?
FUKE: Yeah, what it is is like,the way the staff is proposing the condition,the staff's condition
is that if the project is not completed in five years,then any extension requires this entire process
again. Because the site is zoned Resort,there---County Council involved; it's pure and
simple, planning commission's discretion to approve or deny the request.
CARR SMITH: Thank you.
FUKE: Yeah, so the short answer to Commissioner Van Pernis's question is that if the project as
conceived is not completed or developed in five years, then it'll have to be vetted by the same
commission again.
VAN PERNIS: But that excludes the Planning Department, planning director, and County --
Council, as far as adding conditions. That statement that you take from the recommendation
offers only to the commission. My question is, would the applicant be willing to go in front of
all of the aforesaid parties as a new application?
FUKE: Well,you know, if the time extension were approved, then, as the staff had pointed out,
there is a need for a Plan Approval because the current Plan Approval expires, and so the issue is
like whether the plans for Plan Approval that will be submitted again to the Planning Department
for approval, whether that will be identical to what was considered back in 2017,whether there
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will be some change that's generally consistent with the envelope and the other guidelines that,
of the original SMA.
VAN PERNIS: I take that as no,because I'm not asking for Plan Approval; I'm asking whether
they'll agree to application,which may include Plan Approval conditions, everything a new
application might involve.
FUKE: I'm sorry, so, in other words like hypothetically if this time extension were approved
and then there is nonperformance that'll enforce to any extension,then there would be like a
mandatory new application be filed. In other words like no further time extension—
VAN PERNIS: Correct.
FUKE: —is that correct? Oh, I see, okay.
CARR SMITH: Sid, he was also asking if, if there is a sale in the works.
FUKE: Not to my knowledge, but I'll defer that;maybe the attorneys may know more that I do
on that.
CARR SMITH: Go ahead, Kim.
K. YOSHIMOTO: I know of no sale. There is nothing on the table.
CARR SMITH: Okay. Max, I saw your hand up.
NEWBERG: I'm not sure if this is within the realm of possibility, but given some of the
discussions being towards the uniqueness of the original application in SMA, you know, now
being well within a period of hopeful stability for Diamond Resorts, is there anything that would
maybe lean towards precedent of maybe a plan, in good faith only perhaps,but a plan being
submitted in a timely manner for approval in the next 24 months to at least lean towards hope of
completion of construction in five years? I don't know if that's a question for the county or a
good-faith reasonable question towards Diamond Resorts. But looking at a five-year timeline, if
it was granted,you are going to design, you are going to submit for approval,you are going to
come up with your construction team, contractors, all of these issues, and complete within a
reasonable amount,within five years. Has that, you know what I'm saying, been done before, or
agreed to, even that would- - -I mean somewhat alluding to this might be the last extension or,
you know, if we are going to put it within the realm of possibility in five years?
CARR SMITH: Go ahead, Jeff.
DARROW: Thank you. This actually was a topic of discussion at our last County Council
meeting. And it's the reality of things is that when the planning commission, or the planning
director,puts on a time frame to complete construction, it doesn't take into account all the, all the
moving parts that have to happen before you can even put a shovel in the ground. And
sometimes that can take a long time. And by the time you get your Plan Approval,your building
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permits, your grading permit, your all, all of that,you have very little time left to be able to
construct the project, and you find yourself in a position where you have to come back to the
commission and/or Council for a time extension. So one of the discussions was, to be able to
begin that time of construction at the time that they have received approval of these previous
permits, one of them being Plan Approval. So, in your question, Max,what we can do is put a
time frame that the applicant has two years to be able to secure Plan Approval, and that once
they secure that, that is the beginning of construction and they have five years to complete.
NEWBERG: Got you.
DARROW: That allows them to submit this plan that's approved, and so everybody knows
what's going to be built for this project, they are able to start,have five years to construct this
project. Is that something what you are looking for?
NEWBERG: I guess in a polite way, given the location, the history of it,just trying to light a
little bit of candle of hope, one that we are granting this in good faith to Diamond Resorts, and
also in good faith with Diamond Resorts wanting to move through this process and complete this
project, and kind of alluding to as well that we are not certain of what's being designed, maybe
it's a little different,you know, I like the fact that it seems it's been mentioned that it's been
reduced in approximate volume. But,you know, if you are in Kona and you've driven down
Ali`i Drive, you've seen this slab for a while; it would be great to just kind of put something
forward that in good faith, or working towards something, not just a five-year window. That
might lend a little more,you know, to what Commissioner Vitousek has mentioned, as far- - -
you know, can we design something that's approved and feasible and,you know, it seems like
everything is settled in with Diamond Resorts and this location, and if there is no sale pending,
just a little more possibly leaning towards this is probably your last approval, what can we do as
the commission and the Planning Department to not only favor, forward a favorable
recommendation, if that's everyone's thought,but also lean towards, you know, what is really
going to take to do this, which is going to be a substantial commitment. I just wanted to put that
(indiscernible—noise)
CARR SMITH: Perry,your turn.
KEALOHA: Yeah, I'd like to kind of echo that. I'd like to see some kind of a cap on the time
horizon. I mean 20 years later we keep asking for extensions, each one with a different story. It
seems to be a recurring theme. So I would like to see some kind of language that allows us to
say this is your final extension, you know, and put a cap on things.
CARR SMITH: Okay,thank you. Mike.
VITOUSEK: Yeah,I mean, we also have the ability to say that it has been long enough,that
these extensions don't need the definition of, you know, something that was outside the control
of the developer. What we are facing right now with the COVID-19 pandemic,that's something
is outside their control that will have a significant effect on their ability to complete this project
in five years. Diamond Resorts,they are a cruise ship owner, as I understand it, it's one of their
business ventures, which has been completely shut down. I imagine the vacation industry as a
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whole has taken a pretty big hit, as has our share in HawaiGi over the past six months. So,to me,
that, that is something that's outside the control of the developer. But what they are proposing
here,what they are justifying here is not. And, you know,there is no one for us to delegate this
to. We are not recommending this to the Council or anything;we,we are the approving body for
Special Management Area permits, so,you know, if we decide that this has been enough,then
we can do that.
CARR SMITH: I just wonder, play a little devil's advocate here,that we've extended permits
that have lapsed a lot longer than this one has, and the county feels that the applicant was in in a
timely manner as well. So,just to keep that in mind. Jeff, go ahead.
DARROW: With the concerns that have been raised regarding another time extension, I've
never seen this before,but it is something to consider that you can include a condition that
clearly says that there will no,there will not be a further time extension, that the applicant will
have to come in with a new application for any additional time. And so that's a consideration
that can be made in regards to seeing this thing continue on with more time extensions.
CARR SMITH: Mike.
VITOUSEK: So, you know, in my opinion, I mean, when you look at the second point about
granting of a time extension would not be contrary to the General Plan,Kona Community
Development Plan and Zoning Code,I agree that what's being proposed here is not contrary to
any of those things. But the fact that appropriately zoned property has been held hostage from
development for the past 22 years, is contrary to the Zoning Code,the Kona Community
Development Plan that indicates that this is where this type of activity is supposed to happen,
and because of the choices by the developer, that activity is not happening.
CARR SMITH: Mr. Van Pernis.
VAN PERNIS: Electric charging stations, please.
CARR SMITH: I'm sorry?
VAN PERNIS: I'd like an answer on the electrical vehicle charging stations,whether they are
agreeable to it.
CARR SMITH: Sid? Or Kim—go ahead.
K. YOSHIMOTO: Chair, we haven't had a chance to confer with our client. That's kind of a
big commitment;we need to be able to do that.
CARR SMITH: Okay.
K. YOSHIMOTO: T also just, if it's okay, I wanted to make a clarification, because it was stated
that the changes in corporate structure was completely Diamond's fault. Going back to private
was a hostile takeover,I didn't realize that, completely out of the control of those who were
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operating at that time. And also,just,I just wanted to make a point that from,you know,we
heard a lot of public testimony,talking to the client about it, they understand,they acknowledge,
and it seems like people really want something to be built; their frustration is that nothing is
getting built. And that is client's desire as well. It's an asset sitting there not making money. So
to the extent we can get redesign and-move forward, we want to. If the commission decides to
make this an example and if we have to go back to the process,we'll do it,but it's just going to
take longer. So I just wanted to sort of reiterate that, because we are listening to the community,
and there is a commitment to being in Kona.
CARR SMITH: Okay,thank you. Anyone else? (No audible response) okey, if there is no
further questions—Mr. Van Pernis.
VAN PERNIS: Yes,I'd like to propose several amendments in the form of additional
conditions.
CARR SMITH: Okay,what would that be?
VAN PERNIS: The first condition would be that the applicants and their successors be required.
to provide four vehicle, electric vehicle charging stations as part of their condominium common
elements in either their garage parking lot or wherever else they wish to put it on their property.
CARR SMITH: Okay. Is that I though you said you had several. That was one, right?
VAN PERNIS: That's first one. I thought you might want to vote on before I go into the other.
CARR SMITH: Why don't you go ahead and tell us what the other ones are.
VAN PERNIS: Okay. The others are that regardless of it being an SMA or special use permit
application as stated in their application, a traffic study involving Kahakai,Ali`i and Walua be
provided, and that this application be postponed until that traffic review is present and available
for review.
The third condi- or third proposed amendment is that the permanent requirement of certain
roadside road improvements be constructed now. There are liability issues with the county
encouraging walking in that unimproved area. So I would move as amendment that they comply
with Condition 4 immediately.
And lastly, my amendment would be, as Mr. Darrow referred to,that no further delays or
application for delays or continuances will be granted, and any new proceeding will require a
totally new application as a new project, and they shall also provide the Plan Approval process
compliance.
CARR SMITH: Thank you. Discussion about that, you guys? Max.
NEWBERG: Just to clarify, if I can, Mr. Van Pernis, I did hear about four parking stalls for
electric vehicles-
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VAN PERNIS: No,they are not parking stalls; they are electrical charging stations.
CARR SMITH: Four charging stations. The second one,the second one is to require a traffic
study, even though it's not required. The third is to make Condition 4 due upon accept-upon
amendment, and to not require any further extensions. That's basically what he said.
NEWBERG: I guess, as a point of discussion, yeah, I appreciate,you know, looking forward,
electric vehicles, things of that nature. I, as far as looking at this project and really wanting to
express at least my concern and optimism that this will actually get built, I'm hesitant to really
go any further than beyond suggesting that their design that they come forward with. I would
assume it would be a forward-looking design that would incorporate charging stations. I think,
in all honesty I don't think doing road improvements immediately is going to be within a
construction plan that's going to be feasible. So, with that extent, I guess by saying there isn't
any other extensions, you know, I'm not sure on how to propose this, but—also given the effects
that Mr. Vitousek made very clear, we may be looking at a difficult four years ahead in recovery
of economy and things of that nature—what I would really like to see with this five years is at
least have a substantial plan developed and actually have troubles in the ground and look at the
foundation at least being completed. You know, obviously, once they are moving forward, we
are not going to stop them. But to try and impress that, at least for my thoughts as being on
commission, that this is something that really needs to happen within this window, and,you
know, showing in good faith that they are moving forward and developing this project. How that
happens, I'm not exactly sure how to put that together, but I think if we are willing to be flexible
enough to extend this SMA, that I think,you know, I think everybody is under the impression we
need to at least see construction has begun underway and is underway within this five-year
window. That's my thoughts this time.
VAN PERNIS: May I respond?
CARR SMITH: Sure.
VAN PERNIS: The electrical charging station amendment refers to when they carry out
construction, they'll include that, so, and it makes their project more valuable, and it's less
expensive than conversion later.
In terms of the curbs, gutter, and sidewalk you refer as road improvements, I'm merely
suggesting that they complete special Condition 4,which is severable from the other
construction.
And lastly, you say,well,we want to see them go forward, which I want to see them do,too, but
I think they need to deal with the increased traffic and a turn lane that's, and the traffic study,
and I think that the sidewalk improvements are severable. They have a foundation in place, so,
saying, well, get a foundation in place in certain time is sort of frustrating to me.
CARR SMITH: Sid, would, would DPW be dealing with the roadway and any required left-turn
lanes or anything like that during Plan Approval? Is Kahakai even—is that a county road?
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FUKE: Kahakai, Walua Road, Ali`i Drive,they are all like, fall under the county's jurisdiction.
So Public Works would have to review the off-site improvement requirements like, as the
Condition 4, curb, gutter, sidewalks. In terms of like, you know,what's going to be required on,
or desired, at Walua Road intersection, I really don't know,because it's, it's a relatively
complicated intersection because it comes like at a Y is where the intersection with Ali`i Drive,
and it's not a standard T.
So I can kind of like,you know, move off of that and just follow up on what Commissioner
Newberg was saying. And I'm just trying to, you know, scribble my notes all over here is that
like, one is like the,you know,to—and even if you have like a five-year construction window,
you've got to want to see some plans submitted like earlier rather than later and such that,you
know, a person doesn't come in like at the fourth year and say, oh,I really don't have enough
time and all that stuff. So, as Jeff had indicated,you know,there have been some other
conditions where there is a requirement that Plan Approval be submitted by X period of time,
and the project be completed by Y period of time;now, if you, for example, have a condition that
says that Plan Approval must be secured within a two-year window, then presumably you have a
three-year construction window. I understand what Mr. Vitousek and Mr. Newberg is saying,
too, because of COVID,you know,there is always the potential that it could slip, especially the
construction end, so you may not necessarily complete it within a five-year window. But I
would kind of like suggest that if what you want to see is still construction activity going on,
then perhaps to be tied in with the building permit process, so if you secure a building permit and
you keep it active, then you know that you have to kind of like somehow do it. And Jessica used
to work for Building, so perhaps maybe she can clarify for me or collaborate that, you know, if
you don't do anything, then obviously the permit expires. And you could tie in another condition
that would say that any, you know, subsequent, you know—if you don't comply with the
condition, that requires a resubmittal, or a new submittal, in other words like this sunset date on
this current SMA application.
CARR SMITH: Mike, go ahead.
VITOUSEK: So one of the difficulties that we have in establishing a realistic timeline for when
this development can be done, is that we don't have the developer here. We've got attorneys on
Oahu, and we've got Sid,but we don't have the developer here where we can ask them how
long do you need to get the plan together,to redesign the project so that you can submit for Plan
Approval, because—you know, I agree with what Kim said; what people want is people don't,
people want this to be developed, people don't want to have this structure, taking away from our
community, we don't want to have our tourists seeing this and thinking,`man,this place is kind
of a ghetto, you know, maybe we should have gone to Maui. But what we,what we want is we
want completion, and the history of this developer has shown that they are not capable of doing
that right now, or having been capable to date. The only way I would be comfortable moving
forward is if we can tighten down the requirements for them to get Plan Approval within a,
certain amount of time, and if that's not met, then we can't tie this up any longer, and it's got to
trigger the need for them to come back with a new SMA permit. I would love to talk to the
developer and ask them how long they need. But the fact that they are not here,to me, indicates
that they don't have serious plans to develop this,you know,the fact that we've been told that
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0.
there is going to be a redesign instead of being presented with the redesign plan, hence that this
isn't really a priority. So, either we tighten down the language and say that they've got a year to
get Plan Approval and show us that they are serious, or they've got move on and come back with
a new SMA permit when they are ready to do something.
CARR SMITH: Sid, do you want to respond to that?
FUKE: So,yeah, Madam Chair, you know,the applicant actually is listening in on the web, and
he is right now like in Florida, so,you know,there is a significant time difference. What I would
like to request—and, you know, we've already had this discussion with the,I've already had
discussion with the attorneys that there are like, there have been like a number of questions or
issues raised by the commissioners, and I think all of them are good—I think if we can go back
to the applicant and, you know,try to see if we can address some of the questions relating to
trying to tie down a little bit more specific construction timetable so that we can appropriately
come up with some conditions that may be acceptable to the planning'commission, you know,
assess his views relative to the idea of having a sunset clause on this SMA application, that is to
say if you don't perform, then it automatically runs away, you know, have him, you know,
consider the, what Commissioner Van Pernis is asking about maybe four electrical charging
stations—I mean, personally, I don't know what the cost is, you know, but they as being in the
construction, or construction related industry,would have a better idea whether they can
accommodate that. And, you know, and lastly,tied in with that is like what we originally had
proposed, which was trying to come up with the sort of like a nuisance mitigation plan, you
know, during the interim while these things are all working its way through, to help address
some of the concerns raised by the neighbors. So in light of that,we would like to request the
commission to kind of defer this matter and give us a chance to evaluate it, and then we'll work
with your staff in terms of having it, having this item rescheduled before the planning
commission. Whether it's going to be next month or the year, the following month, I really don't
know, but bottom line is kind of deferral subject to I guess the call of the chair or the planning
director.
CARR SMITH: Okay,thank you, Sid. Max.
NEWBERG: I appreciate all these recent discussions. Mr. Fuke, are you in communication at
this time, or are you able to ask the developer a question at this time? The question being—I
think deferral may be a good idea, but given that we are kind of floating with an expired SMA—
if we do defer, are they willing to commit to having some substantial answers and at least
perimeters by December of this year? So this isn't just going out,you know,beyond this year,
you know,now we—is that, is that something you are able to ask?
FUKE: I'm, yeah, Commissioner,I think I'm very certain that the, if anything,the latest would
be, a request for a hearing,no later than the end of this year. So November possibly, but I would
say more than likely December.
NEWBERG: And with that commitment,I guess, one, would that be acceptable to other
commissioners, and, is that feasible for upcoming schedule with the Planning Depatt<uent to fit
that in?
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CARR SMITH: Jessica, I don't know if you can speak to that or Jeff needs to weigh in on—
ANDREWS: We'll have to,we'll have to check the availability of the schedule. Jeff, do you
know that offhand now?
DARROW: Yeah, we, there is no problem putting it on. December is going to be an earlier
meeting; I think it's the 13th, if I'm not mistaken. It's, it's like the second Thursday instead of
later because of Christmas and everything. But there wouldn't be an issue getting it on the
agenda.
CARR SMITH: Okay,thank you. Do I have a motion? Max.
NEWBERG: That was a subject of timing, and I wasn't going to put forward a motion. But I
guess it seems appurtenant with everything on there. I would like to forward a motion—I
apologize I misplaced my agenda in front of me—for agenda item 2, DPM Acquisition LLC dba
Diamond, doing business as, Diamond Business, Diamond Resorts International,that it be
deferred to no later than December 2020's commission meeting, and strongly implying that they
should have site plan mitigation,that they should have at least the number of units that we are
looking at, the number of floors, if there is a commercial contingency, some form of a plan, as
well as hopefully a construction schedule to lean towards their commitment and feasibility of this
project at this given time,which is uncertain time,but, to hopefully defer and come back to us
with some answers and a plan set forth.
VAN PERNIS: And may - - -
CARR SMITH: - - -motion went on a little bit.
VAN PERNIS: May I,I'll make a second and amendment to that motion?
CARR SMITH: Well,you are seconding the motion, so—is that what you are doing? Are you
seconding the motion?
VAN PERNIS: No,I'd liketo amend it first.
CARR SMITH: Okay, at the moment I'm looking for a second because we have that on the
table. Go ahead, Mike.
VITOUSEK: Second.
CARR SMITH: Okay,we've got a motion to defer by Mr. Newberg and a second by
Mr. Vitousek. Discussion? Mr. Van Pernis.
VAN PERNIS: Yes, I'd like to amend the motion. I think it's a friendly amendment to delete
the December meeting and say when the applicant is ready, because there is a lot of things that
the motion asks of the developer.
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CARR SMITH: I think we want them to come back as soon as possible, so I don't know that we
want to leave it open-ended, right? Perry, are you, do you want to say something?
KEALOHA: No,I'm listening in and—
CARR SMITH: Okay, sorry,I thought—anybody else? Barbara.
DEFRANCO: Yeah, I'd like to see it sooner,this year sometime, and I'd also like to include the
idea of the mitigation to the community of what's going on there,that they do something about
it, you know,with the homeless people living in the parking structure.
CARR SMITH: Okay. So the motion was to defer, and it,the reasons were in order for them to
come up with a plan, right? A construction plan, at least something so that we can see what we
are looking at, and a time frame. Is that right? And what else? And what else did you mention,
Max, in your motion? Because it went long, so—
NEWBERG: Thank you, Madam Chair. To clean it up a little bit, I would say a motion to defer
until December 2020 meeting for the SMA permit and their application pending three subjects,
would be the mitigation of the existing site; two, at least a description of how many units in what
we are talking about, floors, commercial space, square footage; and then,three, hopefully, a
timeline of when they plan to submit their plan for approval and possibly a construction
schedule.
CARR SMITH: Got it. Is that what you seconded, Mike?
VITOUSEK: Yes.
CARR SMITH: Okay. So—J, did you want to say something?
J. YOSHIMOTO: Yes, Madam Chair, real quick. Just for the record,just to be clear,I notice
that the applicant's attorney is Kim Yoshimoto, but we have no relationship. Just so it's clear for
the record. I wanted to say that at the beginning, but I'm going to say it now. Just so everyone
knows. Thank you.
CARR SMITH: Disclosure of no relationship, okay,very good. Jeff.
DARROW: Just to correct the record,the December hearing is December 17th.
CARR SMITH: 17th.
DARROW: Thank you.
CARR SMITH: Okay. So, Mark, you wanted to amend the motion to make it so that they could
come back when they are ready and not December. Did I understand that right?
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' think matter of
VAN PERNIS: That's correct. But there has been a second on the motion. I the atte
the answer on the electrical charging stations was included in Max's motion,but not stated.
CARR SMITH: It wasn't in the motion specifically, no, but the applicants know that that's a
concern and they voiced in their testimony that they would be looking into all those issues that
we've raised. Right?
VAN PERNIS: I withdraw my motion to the later date mentioned in the motion to defer.
CARR SMITH: Okay,the mo-we have a motion on the table that Max made, and Mike
seconded it. You made a suggestion for an amendment, but that's, it's not a motion,right?
Okay? Any other discussion about the motion that's on the table? So, Barbara, you commented
that you wanted the mitigation to be looked at, so I think Max clarified that, and you would like
it sooner than later. Perry, did you have any input? (No audible response) Faye, do you have
any input? (No audible response) Okay. All right, so we have a motion on the table.
ANDREWS: Okay, I'm going to take a call of the votes.
CARR SMITH: Thank you.
ANDREWS: Commissioner Newberg?
NEWBERG: Aye.
ANDREWS: Commissioner Vitousek?
VITOUSEK: Aye.
ANDREWS: Commissioner Van Pernis?
VAN PERNIS: Aye.
ANDREWS: Commissioner Yates?
YATES: Aye.
ANDREWS: Commissioner DeFranco?
DEFRANCO: Aye.
ANDREWS: Chair Can Smith?
CARR SMITH: Aye.
ANDREWS: I'm sorry, I should have said prior to that, Vice Chair Kealoha?
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KEALOHA: Aye.
ANDREWS: Thank you. Motion passes, seven-zero.
CARR SMITH: Very good. So we will defer this, and we'll hope to get more information when
we see you back in December, Sid and Evan and Kim.
FUKE: Thank you very much:
K. YOSHIMOTO: Thank you so much, Madam Chair-- -
OUE: Thank you so much.
•
CARR SMITH: Thank you, folks. Take care.
The hearing was adjourned at 4:03 p.m.
Respectfully submitted,
Noriko Sauer, Secretary
Leeward Planning Commission
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LEEWARD PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
NOVEMBER 19, 2020
A regularly advertised hearing on the applications of PALAMANUI GLOBAL HOLDINGS LLC
(AMEND REZ 05-000010 AND AMEND REZ 09-000094)was called to order at 10:00 a.m. via
live-stream online meeting, with Chairperson Nancy Carr Smith presiding.
COMMISSIONERS IN ATTENDANCE: Nancy Carr Smith, Barbara DeFranco,Perry Kealoha,
Max Newberg, Mark Van Pernis, Michael Vitousek and Faith"Faye"Yates
ALSO IN ATTENDANCE: Malia Hall, Esq. (Counsel for the Commission), Michael Yee
(Planning Director), John Mukai, Esq. (Counsel for the Planning Director),Robyn Matsumoto
(Acting Building Chief, Department of Public Works), Maija Jackson (Planner), Jeff Darrow
(Planning Program Manager), Jessica Andrews (Planner),Tracie-Lee Camero (Planner),
Rachelle Ley (Secretary to the Planning Director), Kim Tanaka(Secretary to Boards and
Commissions) and Noriko Sauer(Leeward Planning Commission Secretary)
APPLICANT: PALAMANUI GLOBAL HOLDINGS LLC (AMEND REZ 05-000010)
Application to amend Condition V(Scope and Timing of Road Improvements) and Condition S
(Scope and Timing of Park Improvements) of Ordinance No. 09-132, which amended Ordinance
No. 06-105, which rezoned 725 acres from an Agricultural-3 acres (A-3a) and Open to a Project
District zoning district for a mixed-use development known as the Palamanui Development. The
property is located northeast of the Kona International Airport at Keahole, between Queen
Ka`ahumanu Highway and Makalei Estates Subdivision, Kau, North Kona, Hawaii,
TMK: (3) 7-2-005: Portion of 001.
APPLICANT: PALAMANUI GLOBAL HOLDINGS LLC (AMEND REZ 09-000094)
Application for a time extension to Condition E(Secure Final Subdivision Approval) of Ordinance
No. 09-131, which rezoned 29.92 acres from the Project District(PD)to Industrial-Commercial
Mixed-20,000 square feet(MCX-20)zoning district in 2009. The property is part of the proposed
Palamanui development located northeast of the Kona International Airport at Keahole, between
Queen Ka`ahumanu Highway and Makalei Estates Subdivision, Kau, North Kona,Hawaii,
TMK: (3) 7-2-005: Portion of 001.
Secretary's Note: "- --" indicates indiscernible speech due to internet/technical difficulties or
simultaneous talk.
The draft conditions reviewed by the commission at this hearing were incorrectly lettered, which
may cause confusion when reviewing this transcript together with other documents. Condition S
related to parks in Ordinance number 09 132 was referred to as Condition P in the draf t conditions,
which is now correctly lettered as Condition R in subsequent documents. Condition X related to
Makalei Drive in Ordinance number 09 132 was referred to as Condition Y in the draft conditions
and during this hearing, which is now correctly lettered as Condition AA in subsequent documents.
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CARR SMITH: We are going to hear Items 1 and 2 on the agenda together, and we'll vote on
them separately, keeping in mind that we are the recommending body, and that the County
Council will make the final decision.
Agenda Item number 1,the applicant is Palamanui Global Holdings LLC, AMEND REZ
05-000010. This is an application to amend Condition V, scope and timing of road
improvements, and Condition S, scope and timing of park improvements, of ordinance number
09-132, which was [sic] amended ordinance number 06-105, which rezoned 725 acres from an
Agricultural 3-acre to, from an Agricultural-3 acres and Open to a Project District zoning district
for a mixed-use development known as the Palamanui development. The property is located
northeast of the Kona International Airport at Keahole, between Queen Ka`ahumanu Highway
and Makalei Estates Subdivision, Kau,North Kona, Hawai`i. TMK is (3) 7-2-5: a portion of
Parcel 1.
Agenda Item number 2,the applicant is Palamanui Global Holdings LLC. This is to amend REZ
09-000094, application for a time extension to Condition E, to secure final subdivision approval,
of Ordinance number 09-131, which rezoned 29.92 acres from the Project District to Industrial-
Commercial Mixed-2,000 [sic] square feet zoning district in 2009. The property is part of the
proposed Palamanui development located northeast of the Kona International Airport at Kea-hole,
between Queen Ka`ahumanu Highway and Makalei Estates Subdivision,Kau, North Kona,
Hawai`i. TMK is (3) 7-2-5: portion of Parcel 1.
I wanted to note for the record the applicant's letter dated 9-15-2020—I think some sound from
somewhere—the applicant's letter dated 9-15-2020, requesting Commissioner Van Pernis's
recusal. According to Commissioner Van Pernis he mailed his response letter to the applicant on
10-29, which was forwarded to the commissioners on 10-30. At this time I would like to
confirm that the applicant received Mr. Van Pernis's response letter. I see that there are many of
you here on behalf of the applicant, and first I'd like to confirm and make sure that we are clear
about everybody who is here. Since we started,I believe Steve Colon came on, Roger Harris is
here, Sid Fuke, Laura Aquino, and Ross Wilson,Norm Stuard is here, John Knox is here,
Greg Chun -- -Is there anyone else who is here? On behalf of—oh, Steve Lim I see, Steve.
All right, so whoever is taking the lead on this, could you please confirm that you folks received
Mr. Van Pernis's response letter? And do you have any comments? (No audible response) Who
is taking the lead here, folks?
HARRIS: Hello,Nancy, Chairman Smith, this is Roger Harris.
CARR SMITH: Hi Roger. Go ahead.
HARRIS: Yes, we received the letter, thank you.
CARR SMITH: Okay, did you have any comments?
HARRIS: No,no further comments.
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CARR SMITH: All right, very good. Director Yee, did you have any comments?
YEE: No further comments right now.
CARR SMITH: All right, very good. All right, so, do the commissioners have any comments?
I can't see all my commissioners. I see you, Mark, hold on, I'm asking it for everyone aside
from you. I cannot see Mike or Perry right now,too many windows. There you are,Perry.
Okay. Anyone else have comments? (No audible response) Go ahead, Mark. Briefly,please.
VAN PERNIS: - - -
CARR SMITH: And go ahead, use the microphone, too,yeah? Thank you.
VAN PERNIS: Can you hear me?
CARR SMITH: I think so. Go ahead.
VAN PERNIS: Palamanui claimed I am biased against current application.
CARR SMITH: And you responded, and they didn't refute that, so—
VAN PERNIS: Excuse me?
CARR SMITH: And you responded, and they are not responding,they are not fighting your
response.
VAN PERNIS: Okay, I want to say in addition to my response that there is no proof whatsoever
of- - -
CARR SMITH: Excuse me, can you speak up a little bit? I'm, I don't know about everybody
else, but I'm having a hard time hearing you.
VAN PERNIS: Can you hear?
CARR SMITH: Yeah,just speak as clearly or, and loudly as you can,please.
VAN PERNIS: All right. There is no legal or factual proof of my bias contemporarily against
their application. Even if there was, what is more important is that bias is not, is not, a basis for
disqualification. For instance, Commissioner Vitousek is well known for his biased view for
archaeological and historical information --presented- - - (Microphone replaced)Now can
you hear me?
CARR SMITH: That's better,thank you. Thanks,Noriko.
VAN PERNIS: Mr. Vitousek with well-known bias in favor of archaeological and historical -
features will be disqualified from hearing in the applications concerning that have that subject
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EXHIBIT B
matter of all. Commissioner Yates would be disqualified because of her bias against seeing more
traffic in Kohala or extra traffic. Commissioners who are in favor of more jobs and construction
would be disqualified from any application that involves jobs or the lack of them. For
instance—
CARR SMITH: Mark, excuse me, I don't, I don't mean to interrupt you, but I think we are good
to proceed. Nobody is pushing back on the fact that you say that you can be fair and non-bias.
So, can we go ahead and proceed with the agenda item?
VAN PERNIS: Yes,I can be fair and unbiased. I want to add that these documents they refer to
sought to enforce the original application and the particular condition, which I've since learned is
still on the table, and I learned that Mr. Yee's recommendation. And I also want to point out that
these writings are several years old and are within my rights to free speech, and I think it's
reprehensible that the applicant would challenge that.
CARR SMITH: Okay,very good, thank you. Anyone else? Go ahead, Max.
NEWBERG: Thank you,Nancy. I just wanted to make mention as a disclosure, I am an
employee of the Hawai`i Regional Council of Carpenters. All I know is that there have been
negotiations between the carpenter unions and Palamanui, but as I have not been a part of any of
those conversations, I'm not aware of the outcomes of those conversations and would not be
compensated either way. I just wanted to make that statement that I as well can be impartial,
non-biased. Thank you.
CARR SMITH: Verry good,thank you. Anybody else? All right. Anyone have concerns about
Max's statement? (No audible response)No. Okay, seeing none,we'll go ahead and move
forward. Maija Jackson, I believe you are going to present this item. Go ahead.
JACKSON: Thank you, Chair Carr Smith. Can everybody hear me? (No audible response)
Yes? Okay. Before I get into the presentation, I want to just mention written testimony that you
should have received since the background and recommendation was distributed. Since then
we've received testimony from David Lassner, President of University of Hawai`i; Jeanette
Foster; Cari-Rose Coleman; Jean Hull; Rick Gaffney; Marjorie Erway; Walter Kunitake, Ken
Melrose; and Andre,I'm sorry, Andee Bemrose on behalf of the West Hawaii Association of
Realtors. So hopefully, the commission received all of those testimonies via email.
Okay, so, as Chair Can Smith mentioned, I'm going to be presenting information for both
agenda item number 1 and 2 at the same time. And you can just give me a moment to share my
screen. Okay,just give me a minute here. Okay, so everybody should be able to see the first
slide that says, "Palamanui Global Holdings LLC." Are you able to see that? (No audible
response) Okay, thank you.
CARR SMITH: Looks good.
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JACKSON: All right. So, as Chair Can Smith mentioned, this is an amendment,there's two
amendments on the table: One is to Change of Zone Ordinance, 09 132, and one is for Change of
Zone Ordinance 09 131.
The subject property is outlined in red on this slide. It's located in the North Kona District. You
can see Queen Ka`ahumanu Highway running in a north-south direction on the west side of the
property. You can see the Kona Airport in this large gray area near the sea. And then
Mamalahoa Highway is on the right side of the slide, and just below Mamalahoa Highway
between the Palamanui project and the highway is the Makalei Estates in this general area here.
So just a little history on the Palamanui development. In 2005 the subject 725-acre property was
rezoned from Agricultural and Open to Project District for a mixed-use development known as
the Palamanui development. This project will continue to consist of approximately 1,100
residential units, inclusive of required affordable housing; a 70-acre business park; 230 acres of
open space; a 74-acre dry forest preserve; a 30-acre town center known as University Village
that will consist of a 120-room hotel and retail shopping and commercial amenities to support the
adjacent University of Hawai`i West Hawai`i campus and surrounding businesses; and lastly, a
20-acre public park. Then four years later in 2009 the applicant wanted to add some industrial
uses into the Palamanui project. And Project District zoning does not allow industrial uses. So
the applicant applied for and secured rezone of 29 acres from Project District to Industrial-
Commercial Mixed zoning. This was in order to develop 35 lots ranging in size from 20,000 to
62,000 square feet, in order to accommodate distribution, wholesaling, retail, office and other
land uses permitted in the MCX district. So this MCX zoned area is part of the larger 70-acre
business park, which is located in the northwest portion of the property.
And this is the county zoning map. Again, you can see the property outlined in red. The Project
District zoning is shown in the gray color, and then the 29-acre MCX zoned portion is this purple
color in the northwest portion of the property. Surrounding zoning near Queen Ka'ahumanu
Highway is Open, which is shownin the green,the dark green, and Agricultural zoning is
located to the north and south and east. Makalei Estates, which is shown in the blue color is
zoned Agricultural-3 acres.
So, many of the conditions that the applicant is requesting to amend are related to roadways in
the Palamanui project, and so I want to orient the commission to the names of the various
roadways that will be discussed. And what I would like to suggest is that you have this map
available as I go through the requested amendment so that-you can see which roads I am going to
be talking about. And this map was sent to you as Exhibit A-1 of the background report of the
applicant, of the application. So the Queen Ka'ahumanu Highway is located on the left side of
the slide. Mamalahoa Highway is located on the right side of the slide. The Palamanui project is
highlighted in yellow. And Ka`iminani Drive is south of the project area, and it extends from
Queen Ka`ahumanu Highway up to Mamalahoa Highway. Of all of these roads that are shown
on the map,the only one that is currently constructed is the one shown in pink, and that is
referred to as Road 3A, it's also referred to as Ane Keohokalole Highway, and it extends from
Ka`iminani Drive up to the southern property boundary of Palamanui. And just to the east of the
road in this general location here is the new University of Hawai`i campus at Palamanui. You
also notice this large pink circle on the map, and that is to indicate that this area is a transit- _
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EXHIBIT B
oriented development area designated in the Kona CDP. You can also see that is has a note on it
for"10 minute walk," and that shows that from the center of the circle out to the edge is a
10-minute walk in all directions. So the intent obviously of the transit-oriented developments is
to create more mixed-use walkable communities. Okay,the next road that I want to point out is
this road in red that runs north-south through the middle of the Palamanui project; on this map
it's referred to as Main Street,but in the conditions it will be referred to as Ane Keohokalole
Extension or Road 3A Extension. The next major road we have is University Drive that is
shown in the light blue color, extends from Queen Ka`ahumanu Highway all the way up to
Makalei Drive, and that's also referred to as Road 2. We also have Road 2C, which is shown in
orange; this was the location of the original University Drive, but Palamanui has since shifted it
more northerly to the light blue alignment. We also have Road 6A,which is shown in Green,
and Road 1, which is also referred to as the future connector road; this Road 1 is meant as a
connection between Mamalahoa Highway and Queen Ka`ahumanu Highway. And I do want to
point out that prior to the recent master plan changes that Palamanui has gone through, Road 1,
the future connector road was planned to come off of Road 6A,the green alignment, generally in
this location here, and it extends up to the highway. Because Public Works requested that this
red segment, the, referred to as the Ane Keohokalole Extension, Palamanui has agreed to shift
the connection of Road 1 to this red road alignment here. And so you'll see in the conditions
there is reference to Ane Keohokalole Highway, sometimes it mentions Road 6A, sometimes
Road 3A. The new proposal is to have Road 1 come off of Road 3A, which is Ane Keohokalole
Highway. So I hope that is clear.
Next I'll be going through Palamanui's phasing plan, and I want to do that before getting into
their request so that you can understand the timing of these improvements, as well as the park
and road improvements that go along to support the development. So this is the Phase I Plan,
and for Phase I, Palamanui is focusing on developing close to the university campus in order to
get that mixed-use commercial and residential support for the campus sooner rather than later.
So this area generally here is referred to as the University Village, and this is where the majority
of the commercial development is going to be located in the Palamanui project. So for Phase I,
you have a 60-room hotel, which is shown in the light purple color; you have about 30,000
square feet of commercial,which is shown in the pink; you have approximately 250 residential
units, which is shown in the peach color just east of the Ane Keohokalole Highway.
Before we move on to Phase II,I want to point out a couple of other features of the property. Up
on the mauka north side of the property is the dry forest preserve. We also have two historic
trails running through the property,which are slated for preservation. And an interim sewage
treatment plant is located just west of the housing and park area, and then a permanent sewage
treatment plant located closer to Queen Ka`ahumanu Highway. There is also a significant
setback buffer along the highway; this area is zoned, I'm sorry,this area is designated Open in
the General Plan, and there is a condition in the State Land Use Boundary Amendment for this
property that requires that this area be kept open and natural except for utilities.
So their Phase II Plan is to—I'm sorry, let me go back—another feature that Phase I Plan that's
not shown on here, but it is in the conditions, is to develop a 10-acre public park generally in this
location here.
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EXHIBIT B
Phase II Plan—
CARR SMITH: So—can I interrupt for just a second? Which, generally in which area? I don't
know whether you are pointing to something,but it's not coming up on the screen, so.
JACKSON: Oh, you can't see my pointer at all,Nancy?
CARR SMITH: I cannot. I don't know if anybody else can—
JACKSON: Okay, I'm sorry. The park area is located just west of the purple hotel square.
Does that help? (No audible response) Okay.
So the Please II plan is to extend the development north along the Ane Keohokalole Highway
Extension, and in Phase II another 200 residential units are proposed north of what will be
University Drive.
Phase III plans also continue to develop out the University Village with another 30,000 square
feet of commercial,which is shown in the pink, another 60 rooms of hotel, which shown in the
purple, additional 50 residential units, which is shown in the peach color north of University
Drive, and then the main improvement in Phase III would be development of the business park.
The business park is shown in the yellow color, as well as the pink MCX zone color. The
significant improvement as far as roadways go for Phase III is the intersection at Queen
Ka'ahumanu Highway, as well as connection of University Drive all the way up to Ane
Keohokalole Highway Extension.
And then the last phase of the project would be further buildout of the business park, further
buildout of the town center with up to 210,000 square feet of commercial, and buildout of the
remaining 616 residential units on the mauka side of the property.
So the applicant has eight requests, and the first request is to amend Condition S,which would
change the scope and timing of public park improvements. The second request is to amend
Condition V, which also changes the scope and timing of road improvements. And in Condition
V there are seven specific amendments they are requesting: One is related to University Drive; to
the Queen Ka'ahumanu Highway -University Drive intersection; to signalization of the
Ka'iminani Drive-Ane Keohokalole Highway intersection; related to the Ane Keohokalole
Highway Extension; and related to the future connector road,Road 1; they are also requesting to
delete Condition V6 related to Makalei Drive; and to add a new condition related to Road 6A.
So I'm going to go through these individually.
The amendment to Condition S,which is the park improvement condition. The current condition
requires development of 20-acre park site prior to issuance of a building permit for the 101'
residential unit that would occur in Phase I; it would include baseball and softball fields, soccer
field, dog park, comfort station and parking; and all of the improvements are to be dedicated to
the county. So the change that the applicant is proposing is to still provide a 20-acre park, 20
acres for park, but break it into two segments. The first would be to develop a 10-acre public
park prior to issuance of a building permit for the 251st residential unit,which would occur in
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EXHIBIT B
Phase II; the park would include a baseball field, a soccer field, dog park, comfort station, and
parking; and again, all improvements would be dedicated to the county. The second change
would be to provide a 10 acres of undeveloped land for park and neighborhood open space
within six months of request from the county. And then Palamanui is also proposing to prepare a
park master plan that will be reviewed by the Department of Parks and Rec. The—Nancy, do
you think it would be more helpful to take questions on each amendment as we go through, or do
you think the commission would like to hear each,to hear the whole presentation and then ask
questions?
CARR SMITH: Well,that's an idea. It might make it simpler.
JACKSON: Yeah, it's a lot of information that I'm going to be presenting, so I don't know
which the commission would prefer.
CARR SMITH: Do you guys want to weigh in? Does anybody have any preference? (No
audible response) Is—go ahead, Mike.
VITOUSEK: Sure, I don't mind taking it condition by condition.
•
CARR SMTIH: Yeah,I think that makes sense.
VITOUSEK: And then we can,you know—although, the benefit of having the, right at the end
is that the applicant can comment on as well.
CARR SMITH: Right.
VITOUSEK: I guess maybe, maybe it would make sense to take it, go through the presentation
and then, you know, we can ask the questions when the applicant is available to answer.
CARR SMITH: But we have an opportunity to ask questions of Maija and of the department
VITOUSEK: Okay, yeah—
CARR SMITH: - - -
VITOUSEK: Cool,I'll ask a question now then about this. Has the division of Parks and Rec
commented on this?
JACKSON: Yes, they have—
VITOUSEK: Proposed change?
JACKSON: Yes. Yes, they have. They were in support of it, and they provided a memo that
should be in your background report; it is Exhibit 11.
VITOUSEK: Okay. Thank you.
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EXHIBIT B
JACKSON: Mm-hmm.
CARR SMITH: Anyone else from the commission have any questions about that first condition
that Maija mentioned? And please speak up, if you do,because I can't see all of your faces.
Looks like we are good, Maija. Go ahead,proceed, please.
JACKSON: Okay, thank you. Okay, so before I get into the road condition changes, again, I'd
like to refer you to Exhibit A-1 - - -
CARR SMITH: You got muted, Maija.
JACKSON: Okay, can you hear me now?
CARR SMITH: Yes.
JACKSON: Okay, so before I proceed with the road conditions, I'd like to refer you again to
Exhibit A-1. If you follow along in Exhibit A-1, you can see which road numbers I'm referring
to. Okay, so the first amendment request is to—I think I jumped ahead, hold on just a second—
okay, the first amendment request is related to Condition Vla for University Drive, or Road 2.
The current condition required construction of University Drive from Queen Ka`ahumanu
Highway to 800 feet mauka of Road 3A simultaneous to the opening of the first building
constructed for the UH or before July 2012,whichever occurs first; construction of the remaining
portion of University Drive to Makalei Drive upon its completion; current condition also
required an 88-foot right-of-way from Queen Ka'ahumanu Highway to Road 6A and did not
specify a right-of-way from Road 6A to Makalei Drive. So the proposed change to this
condition would provide for construction of University Drive from Queen Ka`ahumanu Highway
to Road 3A prior to issuance of a certificate of occupancy for any building within Phase III;
construction of the remaining portion of University Drive up to Makalei Drive would be done as
part of Phase IV; and then lastly, the proposed change would specify a 60-foot right-of-way from
Road 6A to Makalei Drive.
The next amendment request is related to the Queen Ka`ahumanu Highway -University Drive
intersection. The current condition required construction of the intersection prior to opening of
the first building constructed for the UH or before a certificate of occupancy is issued for any
portion of the subject propertyor the completion of any single-family home,whichever occurs
first. The proposed change to this condition would allow construction of the intersection prior to
the issuance of a certificate of occupancy for any building within Phase III.
The next amendment is related to signalization of the Ka`iminani Drive-Ane Keohokalole
Highway intersection. The current condition required construction of Road 3A between
Ka`iminani Drive and University Drive within a 120-foot right-of-way prior to opening of the
first building for the UH or before July of 2012. And this road has been constructed;this is the
hot pink road on Exhibit A-1, and it has been constructed from Ka`iminani Drive up to the
University of Hawai`i just south of Palamanui's property, and this is referred to as Ane
Keohokalole Highway. So the proposed change for this condition would be to add language
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EXHIBIT B
requiring that the Ka`iminani Drive-Ane Keohokalole Highway intersection be signalized prior
to issuance of building permits for more than 500 residential units or lots and prior to issuance of
occupancy permits for more than 30,000 square feet of commercial area and more than 60 hotel
units, or whenever the Department of Public Works reasonably determines it is warranted. And
so what, what this does is—I should back up a little bit—the applicant had a traffic assessment
done in 2017, and that traffic assessment showed that this Ka`iminani Drive -Ane Keohokalole
intersection could accommodate up to 500 residential units, 30,000 square feet of commercial,
and 60 hotel units prior to the need for signalization. And so the first two phases of the
Palamanui development could be done with all of the traffic for Palamanui going through that
intersection, and then in Phase III is when the signalization would be warranted, according to the
traffic study.
The next condition—okay,I'm getting a message saying that I'm not in presentation screen, so
let me try to fix that in just a minute. That way you'll be able to see the larger presentation. One
minute here. Nancy, are you able to see a large screen or do you see the notes on the right side?
CARR SMITH: The notes on the right side.
JACKSON: Okay.
CARR SMITH: I'm looking at a monitor, so it's easy enough for me to read, but it may not be
so for other—
JACKSON: Yeah, I want to make sure that it's nice and large once we get to the maps. Just
give me one minute here. How about now? Do you still see the notes?
CARR SMITH: Yes.
JACKSON: Okay.
CARR SMITH: Commissioners, are any of you having a hard time seeing this? (No audible
response) Barbara seems okay. Are your thumbs up? Faye and Mark, can you guys see?
YATES: Yes.
CARR SMITH: Perry,Max, I can't see you guys.
KEALOHA: It's clear here.
CARR SMITH: Okay.
JACKSON: (Low-volume private conversation with Mr. Darrow over the phone)
VAN PERNIS: I have some questions on what has been presented already.
CARR SMITH: Okay, hold off,Mark.
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EXHIBIT B
JACKSON: I'm sorry,Nancy,just give me one minute, please.
CARR SMITH: No problem, go ahead.
(Pause)
CARR SMITH: Maija, let's just go with whatever comes up right now. I think all the
commissioners said they are okay. Hey,there we go. Okay. Okay, Maija,I think that's where
you wanted.
JACKSON: - - -
CARR SMITH: You are on mute.
JACKSON: Okay. Sorry, Nancy,I appreciate yours and the commission's patience. I was
sharing the wrong screen. Okay.
CARR SMITH: Okay. Wait, Mr. Van Pernis had a question. So, are you at the point where—
JACKSON: Sure.
CARR SMITH: —before you get into the next phase here.
JACKSON: Yeah.
CARR SMITH: Mr. Van Pernis, go ahead, please.
VAN PERNIS: Thank you. I have a couple of areas to cover. I notice that the reference to
connection with Makalei Drive, although Makalei Drive is a private road, gated road, gated at the
bottom and gated at the top. Makalei Drive is, does not the construction, does not go all the way
to the boundary of the Palamanui property. And I notice Mr. Fuke's letter picked this up, and the
Kent [sic] letter also picked this up, and there are some changes in the proposed ordinance, but
there are still many references to Makalei Drive. Now, I assume the county is not proposing that
the strip between the road itself and Palamanui's property be condemned or that Palamanui
trespass on the land to connect to that private road. You do mention that letter in the proposed
ordinance that the road is private and not available. So you've changed some references in the
proposed ordinance to referring Road 6A up to the boundary of the Palamanui property, but
there's other references referring it to Makalei Drive,which assumes the improvements not
adjacent to Palamanui. Can you change all of the references to the southern, excuse me, to the
boundary of Palamanui, rather than Maluhia Drive, or Makalei Drive, for a clarity sake so we
don't end up with condemnation or trespass?
JACKSON: So I'm hearing you mention Road 6A and Makalei Drive, and Road 6A does not
connect to Makalei Drive; University Drive does. And the, your concern about Makalei Drive
being a private road,that is correct, and that is why the applicant is requesting to delete one of
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EXHIBIT B
the conditions in recognition that they do not own Makalei Drive, and that it is a private road,
and that unless condemned by the county sometime in the future, it will remain a private road.
VAN PERNIS: There are several references to Makalei Drive in your presentation and in the
proposed ordinance. I agree that you do note that Makalei Drive is private. I'm suggesting, as
Mr. Fuke has, as Kent [sic] has,that the reference to connections of any Palamanui roads be
deleted since Makalei Drive does not abut Palamanui's property, and that the boundary be, or the
end of the Palamanui roads,whatever they may be,be, as Mr. Fuke said and the proposed
ordinance refers to one point, the boundary of the Palamanui property. Otherwise, the
implication is that they,there should be condemnation or trespass onto the Makalei property to
connect with the improved road, which does not go to the boundary.
JACKSON: Commissioner Van Pernis, if you could point out those references that you are
concerned about, I'd be happy to look at those. But with, if, if Condition V6 is deleted as is
being proposed,I think your concerns would be addressed.
VAN PERNIS: I don't think so because there are many references in the proposed ordinance
that the applicant will connect with Makalei Drive.
JACKSON: Okay, as I suggested, if you could point out where those references are in the
ordinance, I'd be happy to look at them.
VAN PERNIS: I'll do so.
JACKSON: Thank you.
CARR SMITH: Maybe you can note those,Mark, and we'll get back to that later. Any other
questions from the commissioners at this point? (No audible response) Okay, go ahead, thank
you, Maija.
JACKSON: Okay. All right, so the next condition amendment would be related to Condition
V3 for the Ane Keohokalole Highway Extension, or the Road 3A Extension. The current
condition states that Road 6A, as I mentioned before, is referred to as Ane Keohokalole
Highway, but this alignment has been shifted to the west, and now Road 3A is referred to as Ane
Keohokalole Highway. As I mentioned before,this request was made by Public Works, and the
applicant was agreeable to shift the location of the highway. The current condition also specifies
that Palamanui construct a half-section, two-lane road within a 120-foot right-of-way; the
condition does not specify timing of when that be done, but it does indicate that the road is to be
dedicated to the county when the county requires it to connect to Road 1. So the proposed
change to this condition is basically just to change the timing of when the road is to be dedicated;
they are requesting to dedicate the road to the county upon request.
The next amendment to V4 is related to Road 1,the future connector road. The current condition
indicates that Road 1 will extend from Road 6A to Mamalahoa Highway; it is to be a 120-foot
right-of-way within state-owned lands—those are located just north of the Palamanui property—
and then 88-foot right-or-way over private-owned lands up to Mamalahoa Highway; the
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EXHIBIT B
condition specifies that the county is to obtain the right-of-way outside of the applicant's
property for this road, and that the applicant will construct the road at its sole cost and expense as
a two-lane county dedicable collector road, including shoulders and swales no later than six
years after the entire right-of-way is acquired; lastly,the current condition requires completion of
the road to be secured by bond prior to granting final subdivision approval on the property
containing single-family residential lots. The applicant is proposing to change the condition to
extend Road 1 from Road 3A up to Mamalahoa Highway, and to defer construction or bonding
of Road 1 until the 900th residential unit.
This is the condition that Commissioner Van Pernis and I were talking about. The request is to
delete Condition V6 related to Mak-Mei Drive. The current condition states that at the western
end of Makalei Drive, the applicant is to provide safety improvements necessary to make a safe
transition to University Drive; Ma-Ica-lei Drive is a minor road and will not be open to the public
as a through street until Road 1 is opened for public use. And the applicant is requesting to
completely delete this condition because they do not own Makalei Drive and so therefore are not
able to make any safety improvements or transition improvements to connect University Drive to
Makalei Drive.
And the next condition is to add Condition V7. This is related to Road 6A. The new condition
would state that Road 6A would be a public road within a 60-foot right-of-way and constructed
in conjunction with any of the project's development requiring access to or from Road 6A.
So those are the requested amendments to rezone ordinance 09 132 for the Project District.
And then for Agenda Item number 2 they are requesting one amendment to ordinance 09 131.
This is for the MCX-zoned portion of the property within the business park. So for this
condition, Palamanui is requesting to amend Condition E to provide a five-year time extension to
secure final subdivision approval within the business park.
The applicant has several reasons for the request. The proposed changes to the ordinances are
necessary to conform the Palamanui project to the Kona CDP and the master plan that was
created in compliance with the CDP; to facilitate the continued development of the UH West
Hawai`i campus and align construction of the Palamanui project with the planned University
Village; as well as to update the Palamanui project to current market demand and conditions,
including traffic conditions. As I mentioned before, Palamanui had a traffic assessment prepared
in 2017, and that traffic assessment informed their phasing plan, and so Palamanui is requesting
that completion of these roadway improvements be triggered with the actual traffic impact or
need generated by the development as laid out in the traffic assessment.
This is an aerial photo of the property. It was taken, I believe, June of last year. You can see the
property outlined in yellow, Queen Ka`ahumanu Highway along the western edge of the
property. There is a rough-graded road along the University Drive, Road 2C, alignment, which
runs along the southern property boundary all the way up to the eastern property boundary near
Makalei Drive. And then you can see the University of Hawaii West Hawai`i campus just south
of the property that is shown with the white buildings and concrete, and then the existing Ane
Keohokalole Highway extends from the southern property boundary down to Ka`iminani Drive,
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EXHIBIT B
which is just off of the screen. There is a base yard in the northwest corner of the property; you
can see a couple of structures there. And I believe that is generally the location of the future
sewer treatment plant.
And these are a few photos of the property and the University of Hawai`i campus. So this photo
on the top left was taken at the very end of Ane Keohokalole Highway; there is a cul-de-sac at
the end of the road, and this view is looking southeast towards the university buildings. Then if
you turn around, if you are standing in the cul-de-sac and turn around and look towards the
Palamanui property, that would be what you see in the lower right-hand image. And, so the
Road 3A Extension, or Ane Keohokalole Highway Extension,would take off in the general area
where the orange cone is located and go directly north.
The planning director's recommendations. So for rezone 05-10, this is for the Project District
ordinance,the planning director generally agrees with the intent of all the applicant's requested
amendments, deletions, and additions, and recommends the Leeward Planning Commission
forward a favorable recommendation to the County Council to amend Ordinance number 09 132,
with the modifications shown in the draft bill. And there are several modifications. Palamanui,
as you know,was scheduled for hearing last month, and since then Palamanui and the Planning
Department and Public Works have been working really closely together to try to find some
agreement in the phasing and some of the improvements related to roadways. So the, my
understanding is that the recommendation you have before you for both ordinances is agreeable
to Palamanui, and I'm just going to, rather than go through every little change in each of the draft
bills, I'm going to point out some of the significant things that the Planning Depailment is
recommending. So the first one is to provide an emergency access road within the Road 2C
right-of-way from Queen Ka`ahumanu Highway to Ane Keohokalole Highway prior to
occupancy within Phase I. And the reason for this is that throughout Phase I and II development
all of the traffic from Palamanui will be going down Ane Keohokalole Highway to Ka`iminani
Drive, and so-the department wanted to have some type of emergency access road so that first
responders can use the road, if they are coming to or from Queen Ka`ahumanu Highway directly
up to the University Village through the Palamanui property. The second—and as I mentioned,
Palamanui has already rough-graded this roadway, so they felt that this was not as significant
burden or requirement to provide in Phase I. The second recommendation from the director
would be to add a condition allowing for development of the business park in an earlier phase—
currently it's proposed in Phase HI—provided, however, that the intersection at Queen
Ka`ahumanu Highway and University Drive up to the Ane Keohokalole Highway is constructed
prior to occupancy within the phase. And then the—the main reason for that is that the CDP
policies recommend providing connectivity when you have two developed areas, so once the
business park starts to develop out,we are recommending that the connection of University
Drive between the business park and the University Village be made. And then the last
recommendation would be to add a 20-year construction completion deadline for full buildout of
the project. And typically,when we have very large projects—as I mentioned before,this is a
700-plus-acre property—the buildout timeline is consistent with a 20-year construction
completion, and the Planning Department often recommends such a long term construction
completion deadline for very large projects, such as some of our resorts that we've had
developed. So those are the three recommendations that are significant to rezone 05-10.
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EXHIBIT B
Then for the MCX-zoned property,rezone 09-94, the director is also recommending a favorable
recommendation be forwarded to County Council to amend Ordinance number 09 131. The
applicant requested a five-year time extension,but when we looked at their development phasing
plans for the business park and the MCX area, it aligned more with like a 10 to 14-year time
frame. So the director is recommending providing a ten-year time extension, rather than five
years, to align with the anticipated construction of the business park in Phase III and IV. We are
also recommending adding language requiring construction of the Queen Ka`ahumanu Highway
intersection and University Drive up to Ane Keohokalole Highway prior to final subdivision
approval for the business park since this intersection and road will serve as the primary access to
the business park.
And that concludes my presentation. I know that's a lot of information to take in, so I'll be
happy to answer any questions the commission has.
CARR SMITH: Thank you very much,Maija. Mr. Van Pernis.
VAN PERNIS: Yes, thank you. I have the sections that are being,that I referred to in my earlier
question—let me turn to those. In the proposed ordinance on page 19 under Section 1, it refers
to the applicant connecting to Makalei Drive; I think that should be referred to as stated in the
page 14, the proposed project, excuse me,Palamanui project report of May 2020, it says eastern
edge of the project property. Also Section lb of page 19 of the proposed ordinance, it refers to
connecting to Makalei Drive, and that should again say the eastern edge. There is noquestion
it's a private road, and I don't think the county intended to condemn or force trespass onto the
Makalei property to get to the proper Makalei Drive, so it should say eastern boundary. That
was picked up in one place but not in those places in the ordinance.
CARR SMITH: Maija?
JACKSON: Commissioner Van Pernis, can I stop you for just a second. So I think I understand
what happened here. I think you are looking at the current ordinance 09 132 that's in the
background report, and that—
VAN
hatVAN PERNIS: That's correct.
JACKSON: —that is not—
VAN
otVAN PERNIS: The one that shows all the changes.
JACKSON: Yeah, so these were the prior changes done in 2009. So the ordinance, or the draft
bill, that the department is recommending is on the orange goldenrod form. So what I'd like to
do is refer you to page 19—I'm sorry,not 19, wrong one—let's look at page 9 of,page 9 and 10
of the goldenrod.
VAN PERNIS: Let me turn to that.
JACKSON: Okay. Actually, you know, it's just page 10 of the goldenrod, and it is under c.
15
EXHIBIT B
CARR SMITH: The second page 10?
JACKSON: Oh, you know what might—
VAN
ightVAN PERNIS: Page 9, Section 1, it refers to going to Makalei Drive,that should be corrected
the eastern boundary of the Palamanui property.
JACKSON: I understand what you are saying now, Mr. Van Pernis.
VAN PERNIS: Do you agree with that?
JACKSON: Yes.
VAN PERNIS: And also in Section b on page 10, it says, "to Makalei Drive,"and again that
should be to the eastern edge.
JACKSON: Okay.
VAN PERNIS: And then there is reference—I'm not sure where it is in the golden document—
but
ocumentbut it says that Makalei Drive shall not be open to the public until Road 1 is completed. To
avoid controversy,the"open to the public" should be deleted because that's a private road and
can't be open to the public absent,of condemnation, which would be mighty expensive, of that
road. It's gated at the bottom and the top.
JACKSON: Yeah, so I think on page 17 you'll see at the top we are recommending completely
deleting that condition.
VAN PERNIS: Page 17.
JACKSON: Yeah, of the goldenrod, at the very top.
VAN PERNIS: Okay,the entire section is deleted.
JACKSON: Correct.
VAN PERNIS: All right. I have a couple other questions on another subject.
JACKSON: Okay, so just to clarify, we'll check with the applicant. I'm sure they agree. But I
understand why you are wanting to change those references to connection of Makalei Drive, so
staff will look through and make sure that there is no, nothing else that we missed—
VAN PERNIS: Yeah,there is one- - -
JACKSON: and can make- --
16
EXHIBIT B
VAN PERNIS: ---point, and this relates to not this subject matter. The water system that is
required,that's from a tank on a property adjoining Mamalahoa owned by Palamanui, correct?
JACKSON: I don't have the details to the property ownership, but I'm sure that Mr. Harris can
respond to that question.
VAN PERNIS: All right, now, that property has gated and improved access to Mamalahoa. And
where is the easement from that property down to Palamanui for the waterline?
JACKSON: I cannot- - -
CARR SMITH: - - - applicant deal with- - -
VAN PERNIS: Okay - - -to the applicant.
CARR SMITH: Okay.
VAN PERNIS: And then also there is a provision, I believe—I don't know within the golden
copy—where access is allowed on Makalei Drive to construction vehicles of Palamanui for work
on the waterline. Now, that's a private road, so that—and I assume the county or Palamanui is
not going to pay for damages or the bond that the Palamanui [sic] association requires. And also,
the easement, I believe, goes along the northern edge of the property off the Makalei property,
not down Makalei Drive. Makalei Drive is not on eastern edge, so there is, there is various side
roads,which have names. So, that particular provision should be deleted because there is no
access from Makalei road to the area of the easement. And in addition,there is improved lots
adjoining the easement so that if they tried to get construction vehicles over there, assuming they
had the same information,they'd have to destroy some of the improvements. So that provision
should be deleted as well. That concerns the water.
CARR SMITH: Seems like maybe we want to have the applicant address that as well, or did you
want to respond,Maija?
VAN PERNIS: That's in the ordinance.
CARR SMITH: Maija?
JACKSON: I would,I would suggest deferring this to the applicant to—because I'm not as
aware as Mr. Van Pernis is about all the easements.
VAN PERNIS: Well, regardless of the easement,the provision I'm concerned with is the
ordinance providing for access to Palamanui on Makalei Drive for construction vehicles to work
on the waterline, even though they have other access. That—
CARR SMITH: Mr. Van Pernis, can you specifically state what you are referring to,please?
VAN PERNIS: I will find that—they didn't refer to it.
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EXHIBIT B
CARR SMITH: Okay. All right, any other commissioners—
VAN PERNIS: - - - other questions to make.
CARR SMITH: Okay—any other commissioners have questions? Mike? Go ahead.
VITOUSEK: Yeah, I will wait to ask a couple more questions until the applicant has the
opportunity to respond.
CARR SMITH: Okay, good. All right,well, we can take a minute to find that, and otherwise—
HARRIS: Chairman Carr Smith?
CARR SMITH: Who is speaking? Roger.
HARRIS: Yes. I can clarify that, I think.
CARR SMITH: Roger,I'd rather, let's wait, okay—
HARRIS: Okay.
CARR SMTIH: —until your presentation. Thank you. Mark,I want to suggest that we hold
off—you can work on figuring that out—but let's hold off until the applicant has made their
presentation.
VAN PERNIS: Fine.
CARR SMITH: So if there are no other questions from commissioners to staff right now, to
Maija, then we will thank her for her presentation and all your work on this. Thank you, Maija.
And I suggest that we take a little break. Are you guys good with 10 minutes? (No audible
response) All right, 10-minute break, it is 11:17,we'll be back at 11:37, I'm sorry, 11:27. Thank
you.
(Chair Carr Smith called a recess at 11:17 a.m. She called the hearing back to order at
11:29 a.m.)
CARR SMITH: Okay,I'm going to call the meeting back to order. It's 11:29. And I, since
we'll be proceeding to the applicant's presentation,I wanted to make sure that all of you were
back—if you can show your faces. Mr. Van Pernis, I realize that you found what you were
referring to. If you can be brief,you can go ahead and mention that, but we want to move into
the applicant's presentation so that we can ask questions—
VAN PERNIS: Right after that,that's fine. For Ms., for the Planning Department, it's on page
19 of the golden copy, Section, former Section [X],new Section Y, and it says, "Construction
vehicles shall not utilize," etcetera. And-
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EXHIBIT B
CARR SMITH: What's your objection to that?
VAN PERNIS: Excuse me?
CARR SMITH: What is your objection to the new Y?
VAN PERNIS: The new Y says an exception,the last couple of lines say, "except for
construction work within Makalei Estates—
CARR SMITH: Okay,I got you.
VAN PERNIS: —etcetera. First of all,I believe the section was written before Ma-kaki was
developed, now it's developed, and before the lot for the wells,mains, and tanks, as referred to
there, the lot on Mamalahoa, there was,there has been access into it, so there is no need to go on
Mak-Mei Drive. It doesn't access that easement anyway—
CARR SMITH: Okay—
VAN PERNIS: —so I'm asking for the deletion of everything in that section from the word
"except"to the word"tanks."
CARR SMITH: All right, thank you. We'll let the applicant address that. All right, so we have,
for the applicant, I believe we have Steve.Colon—if you folks can show your cameras,please—
Roger Harris, Sid Fuke, Laura and Ross, if you are planning on speaking, Norm Stuard—is Paul
Kay not here—John Knox is here, Greg Chun dropped off, Steve Lim is here, Jason Knable is
here. Is there anyone else? I was told that Guy Lam might be joining in,but I haven't seen his
name. So, all right,then all of you folks please raise your right hand. I need to see your faces, if
you have a camera. Hi Steve. Steve Lim, John Knox, Ross—anybody that is going to be
speaking needs to be sworn in. Hi Steve.
LIM: Hi.
CARR SMITH: Okay,then,Ross will not be sworn in. Jason Knable, are you there? (No
audible response) All right, so we are going to swear in Steve Lim, Steve Colon, Sid, Roger
Harris, John Knox. Thank you. Please raise your right hand. Do you swear or affirm to tell the
truth on this matter before the Leeward Planning Commission?
REPRESENTATIVES: I do. Yes. •
CARR SMITH: All right, thank you. Thank you. And whatever order you folks decide to
present, please state your name,your area of residence. We need to know if you received the
Planning Department's background report and recommendation, and if you agree with it or you
have any comments about that, and then you can also give us your presentation. So who is going
first?
19
EXHIBIT B
HARRIS: Members of the commission and Chairman Nancy Carr Smith,this is Roger Harris
representing Palamanui. I just wanted to make brief comment about Mr. Van Pernis's comment
on the Makalei Drive. There is—we don't object to eliminating Condition Y- - -
recommendation, except that it's just a simple fact that there are two easement lots within
Makalei Estates Subdivision that are intended for future water reservoirs and improvements to
the county water system. It would be at some time in the future- - -
VAN PERNIS: -- -
HARRIS: - - - easements.
CARR SMITH: Noriko,please—
VAN PERNIS: Would you repeat that, please, because it was broken up, and we can't hear it?
CARR SMITH: Noriko—thank you,Noriko. Yeah, Roger, you got, you are a little bit muffled.
Do you guys still have a second computer or phone on in the room?
HARRIS: Yes, we have two computers on right here, but can you-- -
CARR SMITH: Okay,that doesn't work,we've found.
HARRIS: (Low-volume private conversation)Hello? How is it now?
CARR SMITH: So who is in the room with you,Roger?
HARRIS: Steve Colon has another little computer, but we can turn that one off or else
disconnect- --be okay? -- -Nancy?
CARR SMITH: No, it's still, it's still muffled, and whoever is in the room with you can't speak
when you are trying to speak as well.
HARRIS: Right.
CARR SMITH: Okay, Roger, go ahead.
HARRIS: My comment was on Condition Y,which relates to Makalei Drive and future
construction. We don't object to eliminating that condition, but it's a fact that there are two
water tank easement lots in that, in Makalei Estates Subdivision, at some point in the future,
either we or the Water department will have to go in and build future reservoirs to complete the
water system and provide fire pressure down the hill.
CARR SMITH: Understood. Okay,we are still,you are still a little muffled, Roger. If, if you
have two computers in the room, can one person move to a different room? It would make
everything work better.
20
EXHIBIT B
HARRIS: We don't have another computer on in the room, and—
CARR SMITH: Okay.
HARRIS: —this is what we have. Can you hear me now?
CARR SMITH: Yeah, it's just a little muffled, and maybe it's your microphone,I'm not sure.
We can, we'll do the best we can. Thank you.
HARRIS: Okay,I think—
CARR SMITH: Go ahead.
HARRIS: —the best sequence now would be for John Knox to make his short comments, and
then he can go, and then Steve Colon will make some small remarks. Thank you.
CARR SMITH: So, Roger, did you want to comment—did you receive the director's
recommendation, and do you folks agree or are you going to object to anything? We kind of, it
would be good for us to know that right now.
HARRIS: No,we are in agreement with the director's report.
CARR SMITH: Okay.
HARRIS: We've been working very long on it with the department, but we are in agreement.
Thank you.
CARR SMITH: I understand that you folks have collaborated nicely with the Planning
Department. We all appreciate that. Okay, go ahead, Mr. Knox,please.
KNOX: - - -
CARR SMITH: Mr. Knox, I believe you are muted.
KNOX: Okay,I hope I'm unmuted now.
CARR SMITH: There you go - - -
KNOX: --- (indiscernible–poor internet connection)
VAN PERNIS: --- can't hear what you are saying.
KNOX: Okay—
CARR SMITH: Yeah, Mr. Knox, you are,you are gurgled—
21
EXHIBIT B
KNOX: Okay—
CARR SMITH: But- --, Mark, if you don't speak out.
KNOX: I'm going to try this way. Can you hear me now?
CARR SMITH: That, yeah, go ahead.
KNOX: So, again, commission members, I'm John Knox, consultant for Palamanui. I've
written and submitted testimony that comes from a summary of a 2015 report co-authored by
Greg Chun, who--- also to testify,but I will now supply - - - summary.
In 2020 dollars and with ripple effects,the development has already injected 51 million dollars -
- - county economy - - -construction that they - --nearby campus and/or a wider community - -
- develop water system, -- -road, campus, other- - -university. And the buildout of the
University Village project is estimated- - - generate more than 550 million dollars in total
construction output, 1840, 1,840, operational jobs at buildout- - -. Beyond that, question that a
few -- -Palamanui campus continues ---with no support community. We scoured the- - -
national collegiate planning organization in country - --find any example of any successful
campus anywhere with no support community. We could not, and every organization and expert
we talked to expressed grave doubts that this would be possible. Dr. Chun was (indiscernible–
poor internet connection)
CARR SMITH: John, you are breaking up. Maybe you could try turning off your camera, and
let's see if your audio will be better without the camera, please.
KNOX: Okay. Is my audio any, any better?
CARR SMITH: Yes, I think so.
KNOX: Yes—
CARR SMITH: So if you could share briefly what Dr. Chun was planning on sharing with us,
that would be great.
KNOX: - - -I wanted to clarify that he was not here today in his capacity as the current
university employee but rather as his former capacity as consultant to Palamanui, and he noted
that, as we concluded in the report, if the Palamanui campus stands physically isolated as it is
now, the social and economic value of the project to the community would be significantly
limited as growth potential of the campus itself;when a campus is geographically isolated
without easy access to service and amenities, growth is challenged. In speaking with Palamanui
leadership, which he and I did- - -, their isolation continues to create transportation, access,
housing, childcare, and food service challenges, that the campus simply cannot beat on their
own. Growth is also,impacted by isolation,because of the specific mission of community
colleges where there is a particular focus on career-- -pathways. These programs specifically
require lab space, apprenticeships where hands-on learning can be conducted. When the campus
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EXHIBIT B
is isolated, finances are challenged, as Palamanui currently is, and must rely more on community
partnerships and businesses where that kind of hands-on learning can take place. And you notice
that when we did our outreach five years ago,there was actually interest on the part of some of
the community organizations in using Palamanui as a case study to look at how the mutual
benefits develop over time, given the fact we have a unique situation here. It's this ---
development of the university and community intent that's not common elsewhere. For most
mixed-use developments occurring near or around university campuses involve revitalizing
already developed space. So, and he has further comments, but I think we'll just(inaudible–
poor Internet connection)
CARR SMITH: Thank you. Anything else, John?
KNOX: - - -thank you.
CARR SMITH: Okay,Roger,what's next?
HARRIS: - - -
CARR SMITH: Oh,there you go. Roger,I didn't hear you. Can you unmute, please?
COLON: Hang on, hang on. Hi,this is Steve. I'm going to go next. And I know you can hear
me because I'm doing this on an iPad—
CARR SMITH: Hi Steve.
COLON: —laptop these guys are using in the room six feet away from me, or more. Hi
everybody. My name is Steve Colon. I lived in Kailua, and whenever I would participate in ,
races here,they would say, "And from Kailua-Kona, Steve Colon"; actually, it's Kailua, Oahu.
So, anyway, I know you've been here for a while, and I just wanted to make a brief statement. I
am the Hawaii division president for Hunt Companies that is the managing member of the
Palamanui Global Holdings partnership, and we have been involved in this project since about
2006, I believe. Our vision has always been to build a community around the Hawaii
Community College Palamanui. As you know from both testimony and the report, that we
worked on with the Planning Department,we've invested about 22 million dollars to get this
Palamanui campus built. And today the fruits of that are evident; they are there, the kids are
there, they are going to the college, it's been a great,wonderful educational benefit for the
community, the kids can get associate degree now close to home, and they can then, you know,
segue into a four-year degree either on the island or elsewhere in the state.
Well, what you have before you is a plan that we've been working on with the county,with the
Planning Department, actually for about, it feels like longer than this, but I believe it's going to
be about three years now. And that plan is to create a dynamic community around the college, a
plan for four phases over a 25 to 30-year time frame. But in order for that to happen,we do need
relief, and that relief is requested through this amend- conditions of zoning amendment request.
The reality is that the great recession, as well as a mandate to build this off-site connector road to
Mamalahoa Highway on property that we don't own or control, or some other reasons,that the
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EXHIBIT B
project has been in a standstill for literally a decade. And as a matter of fact,under the present
conditions, the reality is it's just not feasible to,the project is not economically feasible to, to
move forward.
But we've done lots of ext-we've done extensive community research. I, I certainly feel, on
behalf of the principals as well, that we really paid our fair share. And I would like to,you
know, thank the community and the Planning Department for working closely with us,
collaboratively, to try and help us find a way forward so that we can make this Palamanui master
plan community a reality.
So, thank you, Chair Smith, and thank you, members of the Leeward Planning Commission. We
are here to answer any questions you may have regarding this application.
CARR SMITH: Thank you, Steve. Sid, did you,were you planning to speak at this point? (No
audible response)No? Okay. All right, so, does that conclude your presentation, folks? (No
audible response) Okay. All right, so we'll move on to questions from the commissioners. Mr.
Van Pernis.
VAN PERNIS: This is a question, I believe, for Mr. Colon or Mr. Knox to answer. It's been 15
years since this was originally approved, and you said the campus needs a support community;
campus has been there since 2015. You are talking another 25 to 30 years for completion. When
do you intend to start? Can you commit to when you are going to start building this support
community?
ty
CARR SMITH: Go ahead, Steve.
COLON: In order, in order for us to go forward with this project, like I said, we have this
request in for you; in our fixing these conditions for us will enable us to go out and attract
financing that we would need to go forward. Now, concurrent with that,you have an entire, you
know, design and permitting process that would probably take about a year, so I would say it
would, it would,you know,rough, rough,roughly speaking would probably be about a year
before we could,you know,really get rolling and bulldozers moving, stuff like that.
VAN PERNIS: When the first ordinance was approved, did Palamanui have the money to keep
their promise to build in five years?
COLON: When the last zoning amendment was approved, which some of you may remember
was way back in 2009,we did extensive, you know, planning and design work after that, and we
then made the commitment—this was, this is,you know, not something I'm making up, it's in
the, it was widely covered by the media,we presented a 9.6-million-dollar check to the
university in order to facilitate the construction of the university campus. We also put in a
5.5-million-dollar road to go from Ka`iminani to the campus. We put in a 11-million-dollar
water system, and a couple million dollars for electric. That's 22 million dollars. So I think you
can probably say that,yes, we had the money to do that. We did that. We did exactly what we
had been asked to do by the community, by the county. And the fruits of that are you have kids
right now going to college on the west side. They used to be going to school down in
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EXHIBIT B
Kealakekua in an old, in a shopping center. And, so, you know, if you, if you are looking, Chair,
if you are looking, Commissioner Van Perris, for somebody to give you some input on whether
this was a good thing for the community, on whether this was a good thing for the students, on
whether this was a good thing for the university,thenyou can,you can hear it from me, but I
would suggest that maybe you might want to ask somebody from university system that
question. Thank you.
VAN PERNIS: That begs a question; that does not answer the question. The question is not
whether they spent all of this money on the college, which I understand;the question is when the
original ordinance was passed, did you have the money to build the community that you are
seeking permission for now, or did you have to go find an investor?
CARR SMITH: Mr. Van Perris, I find that somewhat irrelevant. That's not what's on the table
in front of us at this moment, so I'd like to move on—
VAN PERNIS: Well, let me explain the relevance—
CARR SMITH: Mr. Van Pernis, Mr. Van Perris—
VAN PERNIS: They are speculating - - -
CARR SMITH: Noriko, will you please mute his microphone?
VAN PERNIS: - - -the future.
CARR SMITH: Noriko,will you please—thank you. I want other commissioners' input,please.
Anyone else have some questions? Mike, go ahead.
VITOUSEK: I was just wondering if you could tell us a little bit about Hunt Companies—where
their background is, where the money comes from, all of that.
COLON: Yes—
CARR SMITH: Who can - - -? Steve, go ahead.
COLON: I'll take on that, Commissioner Vitousek. Thank you for the question. Hunt
Companies is a family-owned company, headquartered in El Paso, Texas. We've been active in
Hawaii since the early 90's. We came to Hawaii as a military housing contractor, and we built
about 5,500 homes for all branches of military on O`ahu. We now own and operate 7,000 homes
for the Navy and the Marine Corps in Honolulu and on Kauai. We also have some other
divisions. The division I run, the development group, is very active with projects on every
island. We are redeveloping the former Barbers Point Naval Air Station, which is a large master
plan community, 550 acres, on the west side of O`ahu, and like Palamanui it has a whole range,
whole range of uses. We have an affordable housing affiliate that provides financing for
affordable housing projects all over the state. They are very, they are most active syndicator in
Hawai`i. We've done multiple projects on the Big Island, in Hilo, and I'm not sure about.Kona,
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EXHIBIT B
but I know for sure in Hilo. We have a general contracting affiliate as well. So I can go on and
on, but we are very, you know, substantial company with a lot of experience in Hawai`i.
VITOUSEK: Now,what would the funding source be for development of Palamanui?
COLON: Funding for real estate projects always involves a mix of what we call dead equity, so
we've already put in a very,very extensive amount of equity. We would-in order to fund the
improvements or the additional improvements, you would go your traditional sources that could
be lending that could be through local banks. Because of our balance sheet and the balance sheet
of our partner, we would probably, you know,we might look for, to get some financing from
mainland as well. We could bring in equity partners, so we might even look for, so we might
look for equity investors. It's somewhat of a circular answer there because it'll all, you know,
each project tends to be, you know, specific project by project.
VITOUSEK: So, basically it would be, you know, once we can secure, you know, if we can
secure the requested relief, at that point you would be seeking out the financing to complete it?
COLON: Internal or external, I think most of you know our partner is Charles Schwab, so it's,
you can imagine, that's,that's not, you know,that he's, you know, he's obviously substantial.
So, you know, again, we are, as a developer,we, we approach various capital sources to,that
tend to be,you know, project by project depending on the nature of project.
VITOUSEK: Okay, thanks. And then, so, moving on and,you know, anybody who has the
answers, feel free to answer the questions. The first thing I point out is for the most part what we
are looking at is not a reduction in public benefit,but a changing of the schedule for the public
benefit. The only exception being the park, the amendment to Condition S, I believe it was.
And, to me, I would be much more comfortable if we were not reducing the scope of the park
and reducing the overall public benefit,but instead doing a similar change in schedule where
after 251 units, that will trigger the phase one of the park, and then if we could set another trigger
down the road for the development'of the remaining portion of the park, and then the turning
over of that remaining portion of the park to the county, already developed. That would make
me much more comfortable, having been in a situation where with the developer that I work for
the county didn't want to accept an uncompleted park even though it was in the ordinance, and
took us three years to convince the county to accept an undeveloped park extension piece. So,to
me, the public benefit is in completing the park and turning that over to the county. Now, if you
need relief in the form of scheduling saying we can push that second phase down the road and
get some more revenue from later phases before we can complete that, is that an option?
HARRIS: This is Roger Harris. Can you hear me?
VITOUSEK: Yes.
CARR SMITH: Yes.
HARRIS: Thanks, Member Vitousek. We, that is an option; however, we are not in favor of
that option. And the park started out years ago as a 10-acre park that we would improve, and
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EXHIBIT B
which is what we are proposing now. And then Councilman Pete Hoffmann at the very last
minute back in '07 upped it to a 20-acre park and—
COLON: And Parks department didn't even want that.
HARRIS: And the Parks department was not in favor of that; however,we are willing to go with
what we proposed and that is to provide the second adjacent 10 acres, two parks, and they have
by memo agreed that's okay with them.
VITOUSEK: I mean,but to me, looking at the memo, even the memo itself can create a little bit
of confusion in where they are saying, "In concept,we have no objections"—oh,no, excuse
me—Item b, 10 additional acres for usage for park expansion and development, "These
additional lands shall be contiguous [with the prior dedicated park lands] and shall be configured
and defined in a manner acceptable to the Director of Parks and Recreation."
HARRIS: Yeah- - -
VITOUSEK: That gets into the situation that we were in where they didn't want to accept it
because they weren't what they wanted,whereas, you know, if we are making the commitment
to building it out whatever that may be—it doesn't have to be what,this long,very detailed
description that's included in the existing condition—but if there is a plan for what is going to go
in there, it's going to adequately serve the community that can be implemented in phases with
the growth of the project. To me, that's, that's a better option that serves the public.
YATES: Nancy?
HARRIS: Well,we, we would like to keep the condition as it's written. We have—if you look
at it,we need to meet with the Parks department and flesh this out—but we have met with them
several times over the years, and the concept is pretty simple; the land is directly adjacent to the
first 10 acres. Respectfully,we'd like to stick with the wording as is ---
YATES: Nancy?
CARR SMITH: Faye, go ahead.
YATES: I'm, my concern is—I know it's kind of, maybe redundant,but you know,I understand
what you all are saying about, you know,things being,you know, costly and put off—for me, it
would be more important that there is,you know, students are able to go to school, there is
housing for students,there is affordable housing in the area, and a park is nice,but you know, a
park is not all that important right now. And the, and the county—I'm not saying it in a bad
way—they have so many parks, so many places to take care of,that they, it has become
somewhat of a concern that, you know,they are not all that thrilled about parks because they do
not take care of the parks the way that they should take care of the parks. And I speak from
firsthand experience because—I'm,I'm sorry but I'm always calling the county—because
certain things are not taken care of at various parks on this island. And so for me it will be more
important to, for me to understand what has stopped or limited,you know,the university moving
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EXHIBIT B
forward, so there is housing—you know, I very honestly was not even aware of where the
campus is or wasn't even aware that there really, I've heard of it,but I haven't seen it—but I
think that it's more important that,you know, we have students who are able to go to school,
place for them to live, whether it's, you know, housing for the students, affordable housing for
people who may live there,that's most important, rather than trying to put in different
infrastructures that can wait.
CARR SMITH: Thank you,Faye. Any response? Go ahead, Steve.
COLON: We agree with those comments, and not only that, you know, again, 10 years ago, we
are, this is exactly what was in the, what, what we had already worked outwith the Planning
Department, and it was Councilman Hoffmann at the time that said he wanted a park twice the
size, that the representative of the county Parks department at the time in 2009 said,we don't,we
don't want that, we don't have this, have the capacity,just like the other councilwoman [sic]just
mentioned here,they said, we don't, we can't take care of the parks we have. And so I feel
strongly that this proposed language here is acceptable and is something that makes sense, you
know, for us.
CARR SMITH: Mike, are you okay with backing off on that?
VITOUSEK: - - -
CARR SMITH: Mike Vitousek, you are on mute.
VITOUSEK: You know, I think that's something that the County Council may have to weigh in
on since they are the approving body on it. It's my opinion that this should be worded in a way
that doesn't allow for any ambiguity in the future, and that the design of the park in keeping with
the approval to allow the maximum of public benefit be done on them. Whether we are phasing
that to allow for more revenue to come in before that's completed, I don't have a problem with
that at all,but I don't want to look at us in terms of reducing public benefit from a project in
order for it to proceed. I think that,you know, giving the relief in the form of time to allow for
them to generate revenue off of that is significant relief. And so,to me personally, I feel like I,I
don't believe in reducing public benefit for the sake of the development to move forward when
that has already been agreed upon. I'm totally okay with extending the schedule and all that, but,
again,that's something that's—we are just a recommending body on this—that's something that
the County Council is going to have to go forward with.
CARR SMTIH: Thank you. Sid, did you have something you want to say?
FUKE: - - -
CARR SMITH: Can't hear you, Sid, sorry. Mr. Van Perris.
VAN PERNIS: As Mr. Colon said,the 20-acre park was agreed to—(cough) excuse me-10, 15
years ago; the need has increased. And I think the, I agree with Mr. Vitousek that the public
benefit should not be reduced. If anything, it should be increased because this has been so long.
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EXHIBIT B
And this relates to the traffic study that has been done that is referred to; the traffic study is four
years old, it's already outdated. And that it sounds as though they won't commit to when they
are going to start to build. There will be 10 or 20 years before this place is built out with
thousands of additional cars. So I would suggest that we require another traffic study when
construction begins, which could be 20, 30 years after the original approval. Another traffic
study—in fact, I think they should return after, let's say, 20 years from the original application to
address all of the increased infrastructure needs.
CARR SMITH: Thank you. Perry? Max? Barbara? Any questions? Barbara, go ahead.
DEFRANCO: I can't,I can't tell if Sid is trying to talk to us - --
CARR SMITH: No, he- - -he might be talking---no, he's not.
COLON: He's talking to one of the other, one of,he's talking to Roger, so whatever he has to
say—
CARR SMITH: Yeah, he's—
COLON: —couple rooms over,we'll find out soon.
DEFRANCO: Okay, and in the CDP the way that it views this in open space and parks and, you
know, I have to agree with both other commissioners in a way,you know; it's going to be a
bigger demand by the time they get around to completing the park. Why not, you know, do
some infrastructure before you hand it over to the county, that extra 10 acres? Maybe it isn't a
full buildout, and maybe we can meet in the middle there. But,you know,we are looking to the
future of things and, yes, we need the schools and the housing first, I agree with that,but also
these kids are going to need a place to be,you know. And the more that we can provide that now
by putting it in here now, I think long term is, is an idea that we should look at them a little bit.
Thank you.
CARR SMITH: Thank you,Barbara. Max or Perry?
KEALOHA: I guess my interest is in the main roadway coming down from Makalei Drive. Is
there any real intention of making a connection from the mauka highway to Queen Ka`ahumanu?
CARR SMITH: Who wants to—Roger? Roger, I've got you on two windows here.
HARRIS: Okay, can you see, can you hear me?
CARR SMITH: Yeah,I can see you a lot—yeah, I can hear you, go ahead.
HARRIS: Okay. With respect to the park—I was just talking to Sid Fuke on the phone—part of
the reason for the second phase of the park was that the county, Pete Hoffmann, and the Parks
department, were looking at putting a big regional park at Kealakehe, and this would, by adding
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EXHIBIT B
10 acres to our park, it would reduce the need for, our park was admitted to be useful for 10
acres, but this would allow additional land if the county wanted to implement a more regional
park at Palamanui. That's just background on that park.
On the road coming down, yes, we have provided for the road to be built in the future, but way
off in the future,which gives us time to get even.
COLON: Yeah, he's talking about Makalei, he's talking about the Makalei connection—
HARRIS: Makalei Drive is a location of the waterline and the access to Makalei Estates
Subdivision, and so,that is just as is, and as Mr. Van Pernis mentioned, it's a private road, and at
some there are some emergency uses that could go through there,but beyond the waterline
improvements,we have no—
COLON: We can't because we don't own—
HARRIS: —we can't agree, we can't work on that road; it's a private road.
CARR SMITH: Okay. Mr. Van Pernis.
VAN PERNIS: Yes. I am quite knowledgeable about the Makalei roads. It's private, gated top
and bottom. There is no waterline easement under it; the waterline easement is to the north. And
there is no possibility in my opinion of connecting that road up to Mamalahoa with the
Palamanui's road, and that is because first of all there is going to be another connector road, and
secondly, Makalei Drive is substandard with upgrades to beg, and even more importantly, if they
were going to condemn, the county or somebody, if they were going to condemn the private
Makalei road into a public road, they had to pay huge damages to the people on that road, and
that's not going to happen. Since this application was originally approved and subsequently
amended, that road has been deeded in fee simple to the association, so it's off the table as far as
the county and the Palamanui is concerned.
CARR SMITH: Applicant, is that the way you see it?
HARRIS: No,we have no further comment, except to note that the waterline and the future
reservoirs are, are constructed in that subdivision, so there will be some future maintenance and
work required there.
CARR SMITH: And you have the easements in place for that?
HARRIS: Yes.
CARR SMITH: Okay,very good. My personal opinion about the park, having been a part of
the park builders group in Waimea,the Waimea District Park, and knowing how the budget
doesn't always, it's not always able to fund the maintenance that's required for Parks and Rec
with all the parks we do have,I personally think that the way it's written is acceptable, that it
should be provided to the county at no cost, and that whatever needs there are at the time that it's
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EXHIBIT B
•
conveyed would be addressed at that time. I just think that the needs may change; there may not
be any maintenance for it. So,I'm personally okay with that,just for whatever that's worth.
Anybody else? Max, go ahead.
NEWBERG: Yeah,just to mirror your thoughts on that, Chair Carr Smith,I think parks are
important, I think it's good to create these livable and workable areas: I've also noticed that not
only with the building of the university itself,the roadway that connects it to Ka`iminani Drive is
a very walkable and popular area for a lot of the residents in that area to have somewhere
relatively flat to walk without having to go down to NELHA, 0 I'EC or Pine Trees, Kohanaiki
area to walk. So seeing it as what it is, and then also to mirror your thoughts on the park,to start
off with the 10-acre, which I do recall that being part of the proposed project long ago,yet also
donating an extra 10 acres,while perhaps not ideal, it does seem to strike balance as far as what
the county may be able to do with that property in the future, be it,you know,potentially a dog
park or something, at least they have the land in which to develop something in the future with
that. Other than that, a lot of this looks like it's trying to strike balance between feasibility and
actually moving forward with the project. That's all I have for comments this time.
CARR SMITH: Thank you. Mike. Go ahead, Mike.
VITOUSEK: Okay,my next question is a little bit more difficult,I guess. You know, in looking
at the long-term needs of roadways and the community, it's my personal, personal belief that the
mauka-makai connector road,the Road 1, doesn't serve as much of a public benefit as extending
the Ane Keohokalole Highway. And I just wanted to know if there was any discussions between
the applicant and the Planning Department about realigning those conditions so that instead of
committing to the creation of a pretty redundant roadway, we could actually get the development
of a roadway that would be a tremendous service to the community.
CARR SMITH: - - -
JACKSON: Chair Carr Smith, you are muted.
CARR SMITH: Sorry, Maija, go ahead.
JACKSON: Can I respond to that?
CARR SMITH: Yes, please.
JACKSON: So there has been discussion over the last few years about that, and that idea came
up a few years ago. One of the main reasons that that hasn't been pursued yet is because the
Land Use Commission decision and order for the Palamanui property requires that they construct
a mauka-makai road at their sole cost and expense. So, although the county may be supportive
of that idea, we advised Palamanui that they need to go back to LUC and get that condition of
their order amended before the county could provide that type of improvements swap.
CARR SMITH: Mike, do you have any response?
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EXHIBIT B
VITOUSEK: I would, I would love to hear a response from the developer,the applicant.
CARR SMITH: Okay. Go ahead, Mr. Colon.
COLON: Hi, well, I would like to point out to the commission that we actually did build the first
segment. The, we spent five and a half million dollars to build the road from Ka`iminani into the
campus that will ultimately be connecting with the Ane K. So we've actually done that; we've
actually done a public benefit to the community by building a road that is very widely used. And
I'm told that the—every time I drive on it,there's families, kids,jogging on it,walking on it, so I
fully,I definitely know it's getting a lot of use, not just, and not just for cars. And again, our
request is, it is, it stands what it is. And, and we recognize this is a difficult process we are going
through. We've been through it before. We know we still go to County Council after this. But
again,we feel that the 22 million dollars that we spent is, that certainly is all the funding that we
have authorized from our owners, and in terms of anything that goes beyond that, we certainly
don't have,you know, anything more to add than what's in the existing application.
CARR SMITH: Mike?
isquestioningwhatyou guys have done. We
VIOTUSEK: Sure, I dust want to clarify. Nobody g y
know that you've put in a tremendous amount of time and money into public benefit, and the
community definitely appreciates that. So we are not talking about what you've done to date;
what we are talking about is what is obligated to be done in the future. And you have this
obligation hanging over you in that Road 1 construction, which is going to be massive. And all
I'm suggesting is that maybe that tremendous, huge obligation could go towards something that
would better serve the community and might even end up being less expensive than putting that
giant road snaking all the way down.
CARR SMITH: Thanks,Mike. Barbara, go ahead.
DEFRANCO: Yeah, I didn't really hear you respond to the question that Mike is, I mean,
Commissioner Vitousek is asking. So if you went back to the state and were able to take that
commitment out, could you, could you go into an agreement to do something else? I mean, are
you looking at that?
COLON: We, like I said, we have no authorization to go- - -beyond- - -what's in this request
to amend the conditions of zoning right now. This is all we have.
CARR SMITH: Mike.
VITOUSEK: I mean,you know, I understand where we are now, with the requirement coming
from the LUC, but I guess what I'm asking is if you guys could at a later date, after all this has
been settled, because we don't have the power to override the LUC now, discuss it internally,
figure out if that's a possibility, and if the feasibility is there, if it's more of a benefit for you
guys, if it's less expensive to construct that section of Ane Keohokalole Highway than the Road
1, would you guys internally discuss that and consider that? Because it's not something we can
do now.
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EXHIBIT B
COLON: Certainly, we'll consider that. And not to belabor the already lengthy discussion
already, we actually—one,of the reasons that we've been doing this,you know, three years with
the county is because there, and the Planning Department, is because there was some initial
discussion of us going to the LUC first, and we actually went to the LUC first. And instead,
basically the guidance we got was, no, you know, get the conditions amended at the county level,
then we are going to go to the LUC. So we already know we are going to be going to the LUC.
We certainly will be taking everything you've mentioned, and more, into consideration. We
recognize this is quite a process, lengthy process -- -
CARR SMITH: Robyn, DPW, I wanted to give you an opportunity, if you wanted to weigh in
on this road talk at all.
MATSUMOTO: Thanks,Nancy. You know, I only have been doing this for a couple of years,
involved in this particular project, so I wasn't aware that there was a discussion about changing
the Road 1 with another section of Ane Keohokalole. I mean, it does sound like it's a possibility,
you know, we just don't have another mauka-makai road,though, you know, other than the—
Kaiminani is the next closest one, so. It's definitely a possibility.
CARR SMITH: Thank you,Robyn. Mr. Van Pernis.
VAN PERNIS: Concerning that road, the mauka-makai connector road, and what Mr. Vitousek
said,we are making decisions that are not going to be in effect for 10 or 20 years; we are not
making it for now. So- - -whether you feel a mauka-makai connector is necessary now—I feel
it's necessary now—but it's certainly going to be needed in 10 or 20 years. Since the applicant
won't commit to when they are going to start, I have to assume 10, 20 or even 30 years, or more.
So I don't think that road should be messed with. I think that Mr. Yee has negotiated long and
hard in that regard, and I think that we should think about this related to the parks,too—what
is going to be in place 10, 20, 30 years from now,not now. And if you don't think it's needed
now, although I do, it's certainly going to be needed then. Same thing with the stop lights.
That's why I'm asking the traffic study be done 10 years from now, and that that be - - -the
developer. The traffic generated by Palamanui is going to come down Mamalahoa, too.
CARR SMITH: Can somebody inform me what the guidelines are for traffic studies? Do they,
are they obsolete after a certain period of time or does something else trigger the need for an
updated one? Maija?
JACKSON: Yeah, sure,I can try to respond to that. So we do have a couple of conditions in the
ordinance that are asking for an updated traffic study. The Department of Transportation has
asked for an updated traffic study prior to construction of University Drive. Then the next point
in time where one would be required is if they do not complete full buildout within 20 years, it
would have to do an updated traffic study when they come in for a time extension to the
development period.
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EXHIBIT B
CARR SMITH: Okay, so it sounds like that's addressed. All right,what's next? Any other
concerns or questions? Everybody is good? (No audible response) All right,very good.
Mr. Van Pernis.
VAN PERNIS: -- -move to amend—
CARR SMITH: You need to get closer to your microphone,please.
VAN PERNIS: I'd like to move to amend the proposed ordinance contained in Mr. Yee's
recommendation, to delete the references to Makalei Drive and substitute for them the eastern
boundary of the Palamanui property, and also to delete from "except"to "tanks,"the language in
new proposed Condition Y.
CARR SMITH: We have a motion on the table. Does everybody understand the motion?
VAN PERNIS: I believe the, I believe the developer has agreed to that.
JACKSON: Chair—
CARR SMITH: So, Steve—
JACKSON: —could I get clarity on the change to Condition Y?
CARR SMITH: You repeat, Mark,the change to Condition Y,please, as it is on page 19 it's—
VAN PERNIS: On Condition Y,because there is no access to the easement on the north side of
the Makalei property,the area is developed, there is other roads within Makalei that go to the
north, and the location of the wells, mains, and tank of Palamanui is a separate lot that adjoins
Mamalahoa and has an access to it, improved and gated, so that this isn't rather necessary. It
also would involve, since Makalei has become a private road since this was originally drafted, as
is acknowledged in changes, that this would involve partial condemnation by the state, if they are
going to break into the private road, and I don't think the state wants to do that, or the county
wants to do that—
JACKSON: Excuse me—
VAN PERSON: —and it also—
JACKSON: Excuse me, Commissioner Van Pernis, I'm asking—are you requesting to delete the
entire condition?
VAN PERNIS: No, as I said, delete from the word"except"to the word"tanks."
JACKSON: Okay, thank you.
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EXHIBIT B
VAN PERNIS: And, so it's, too, unnecessary; it will involve a condemnation or bond or
expense to the county and/or the developer. And they have access on their lot. They don't need
this access.
CARR SMITH: Thank you. Are you clear now,Maija?
JACKSON: Yes, thank you.
CARR SMITH: Is there a second on this motion? So that we can discuss it further? Mike.
VITOUSEK: Second.
CARR SMITH: Second by Commissioner Vitousek. Okay, any other conversation about this?
Go ahead, Mike. ,
VITOUSEK: Just want to confirm again that the developer is okay with that amendment.
COLON: Yes, we are.
VITOUSEK: Okay.
CARR SMITH: Anyone else? Are you good, Faye? (No audible response) All right, it's got a
motion by Mr. Van Pernis, and a second by Mr. Vitousek. No more discussion about this?
Mr. Van Pernis.
VAN PERNIS: Yes, the motion includes the deletion of the words in new section Y from
"except"to "tanks," and also involves substitution of the words "Palamanui's eastern boundary"
for the words "Makalei Drive"wherever Makalei Drive is referred to.
CARR SMITH: So you are amending your motion. Is that what you are saying or you—
VAN PERNIS: No,that was the original motion.
CARR SMITH: Okay. Are we clear about what that is, Maija? Is he referring to those items
that said Makalei that you agreed could be struck?
JACKSON: Yes.
CARR SMITH: And do we want to refer to where those are so that we are clear?
HARRIS: Mrs. Chairman, I have a comment.
CARR SMITH: Yeah, Roger, go ahead.
HARRIS: Yeah,I just, I think Mr. Van Pernis may be confused. There is no easement on the
eastern boundary of Makalei Estates; there is, there is a waterline, which belongs to the county
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EXHIBIT B
Water department down the middle of Makalei Drive, and there are two future reservoir lots, or
easements, within the Makalei Estates subdivision that someday in the future they are going to
have to be hooked up. So,we don't object to eliminating Condition Y, but we do, you know,
want the record to show that there,you know, there will be construction in there in the future.
CARR SMITH: - - -
VAN PERNIS: I'm not talking about preventing the county from doing whatever they want to
do - --
HARRIS: Okay, if you are not—
VAN PERNIS: —future.
HARRIS: If you are not preventing the county Water department from working in there,we
have no objection.
CARR SMITH: Mike.
VITOUSEK: My question was whose responsibility is it to do the work in the, in the Makalei
Estates easements.
HARRIS: It will be the Palamanui developer team in concert with the county Department of
Water Supply.
VITOUSEK: And is there an access easement from Makalei Estates to conduct that work?
HARRIS: Yes.
VITOUSEK: So basically, you have what you need and somewhat of an irrelevant reduction?
HARRIS: Yes.
VITOUSEK: Okay.
CARR SMITH: So you are fine with taking that out, Roger,the"except for construction work
within Makalei Estates on the water system."
COLON: Yes.
CARR SMITH: Okay,Mr. Colon, okay. All right—
JACKSON:
ightJACKSON: Chair Can—
VAN PERNIS: - - -the Planning Department could-
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EXHIBIT B
CARR SMITH: Mark,Mark, hello—
VAN PERNIS: Hello,perhaps the Planning Department could note in the motion the, too,these
sections that are referred to where we are substituting eastern boundary for Makalei Drive.
CARR SMITH: Is that an amendment to the motion? Do you understand—
VAN PERNIS: Yeah, I would include that in the motion, include the sections. I gave them to
the Planning Department.
CARR SMITH: Mike, are you in agreement as the—
VITOUSEK: I don't really understand what the amendment is to the motion, I'm sorry.
VAN PERNIS: It is to identify the paragraph numbers in the proposed ordinance, instead of just
a generic referral.
VITOUSEK: And are you going to identify them specifically now, or is that—if it's a generic
referral,then we can let the county go through it and eliminate that language.
VAN PERNIS: I agree with that. We can let the county go through it and eliminate the
language—
VITOUSEK: Okay.
VAN PERNIS: —or substitute the language.
CARR SMITH: Maija, are you clear with the motion?
JACKSON: I'm clear with the motion, but I want to make sure that the county is not, I want to
make sure that the county is okay with Condition Y, and that the county Water Supply still has
the ability to go into Makalei Estates and work on its waterlines. So, can Roger or Steve confirm
to me that there are easements within Makalei Drive in favor of the county to maintain the
county's waterlines?
HARRIS: Yes, there are. We confirm that.
JACKSON: Okay.
CARR SMITH: Then why would we take the language out? I don't understand what the benefit
is to remove that sentence.
JACKSON: Yeah, I,I really don't understand the benefit, either, because the county will be
coming in working on the waterline.
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EXHIBIT B
CARR SMITH: Mr. Van Pernis, the county has, there is an easement there, so what, why do we
need to remove this.sentence?
VAN PERNIS: - - - object to language that does not limit---respect and object to language - -
limit, or the proposed motion limits the developer,Palamanui, to the easement area whether they
go on streets on Makalei. They ---
CARR SMITH: ---
VAN PERNIS: - - - easements that are limited to the easements. We don't want them tearing up
or develop lots.
CARR SMITH: You are assuming that the developer would go beyond their easement rights. Is
that what you are saying?
VAN PERNIS: That's what the language impertinently stated; that's not limiting to easements.
HARRIS: This is Roger again. I, I mean, the language to me seems okay; it says we will not
utilize Makalei Drive for ingress for construction except for construction work within Makalei
on the water system—
VAN PERNIS: Beyond the easement areas.
HARRIS: You can,you can add in "beyond the easement area."
CARR SMITH: Go ahead, Mike.
VITOUSEK: Yeah,that was generally my suggestion, because I agree that it seems redundant to
remove because they need it. And I understand where Mark is coming from about protecting the
areas that are not included in the easement, so instead of eliminating the whole thing, if we just
add"within existing easements,"that would seem to cover both bases.
CARR SMITH: Makes sense to me.
VITOUSEK: Would you be okay with that, Mark?
VAN PERNIS: Yeah,I'm okay with that. Instead of exempting that language,we'll add at the
end "except for easements of record in favor of Palamanui."
CARR SMITH: Does that language still make sense?
HARRIS: Yeah, we have no objection, we have no objection to adding that section on the end.
Maija, can, can you draft something that goes there? Or just use that wording, "except for
easements of record."
r �I
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EXHIBIT B
JACKSON: Yeah, so I think what Mr. Van Pernis said was"except for construction work within
easements of record within Makalei Estates on the water systems." Would that work for
everybody?
VAN PERNIS: That works.
HARRIS: Yes.
CARR SMITH: Okay. And for you, Mike, on the second? (No audible response) Okay. And
you are fine with that, Roger?
HARRIS: Yes.
CARR SMITH: Okay.
HARRIS,: Thank you.
CARR SMITH: You're welcome. Anything else? All right, seeing no more discussion, Maija,
if you clear on the motion, let's procced to a vote,please.
JACKSON: Okay,thank you. Commissioner Van Pernis?
VAN PERNIS: Are we voting both parts of the easement here? The one about the eastern
boundary, too?
JACKSON: I don't believe so. We were just—
VAN
PERNIS: Well,that was the motion - - -
CARR SMITH: - - -verify that we are dealing with the first agenda item, right?
JACKSON: Yeah, so—
VAN PERNIS: This concern - --
VITOUSEK: - - -
VAN PERNIS: - - -my motion was to substitute "eastern boundary" for"Makalei Drive"to
avoid condemnation damages. And in addition,the second part of the motion was what we
talked about here as far as construction.
JACKSON: That's correct. I'm sorry, Commissioner Van Pernis,I misunderstood you. The
first part was to substitute"Palamanui's eastern boundary"with any reference to Makalei Drive.
VAN PERNIS: Yes, so if, for that motion,I say yea.
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EXHIBIT B
JACKSON: Thank you.
HARRIS: May I make a comment?
CARR SMITH: Yes, Roger.
HARRIS: Yeah, I, I think there is some confusion. I mean, the waterlines and the reservoir sites
are along the main, you know, Makalei Drive; the waterline is existing in Makalei Drive, and the
reservoir sites take—with an easement—and that they, they take access for future water
construction off Makalei Drive. There is nothing,we don't,we are not aware of an easement on
the eastern boundary of Makalei Estates. So I think the wording as you have it, as we just
discussed, is fine. And with all due respect, I don't understand why Commissioner Van Pernis is
talking about an easement on the eastern side.
VAN PERNIS: I assume the waterline easement is on the eastern side, or northern side, excuse
me, obtain existing easements. I may be wrong on that.
HARRIS: Well, if it(low-volume private conversation) in any case, the existing lines are in
Makalei Drive itself, and, which is not the eastern, or northern boundary, and therefore, we need
this language to read the way it does, if it's going to be practical.
VAN PERNIS: Well, legally speaking, since Makalei is private, Palamanui has no rights
anyway except on the easements of record. So we are just confirming that here. I don't think
this commission nor the county have the ability to tell anybody where they can goon a private
rivate
road;that has to involve condemnation or the agreement of Makalei. So we are saying anyplace
you have an easement,you can go,but any place else is verboten.
CARR SMITH: Okay,I thought we already cleared up the easement language in Y. Is that
correct? Maija, weren't you talking about the reference to the eastern boundary that he was
referring to? Is that part of the motion or not?
JACKSON: Yeah—
CARR SMITH: I'm not asking you, Mark.
JACKSON: —can I, can I restate the motion and—
CARR SMITH: Yes, please,please,please.
JACKSON: Okay.
CARR SMITH: As it relates to the agenda item.
JACKSON: Okay.
CARR SMITH: Thank you.
40
EXHIBIT B
JACKSON: So the motion is related to rezone 05-000010, and is to amend ordinance 09 132 as
recommended by the planning director, with two changes: One is to substitute the words
"Palamanui's eastern property boundary"with any references to Makalei Drive connection; and
then the second change is to amend Condition Y by adding some language so that it reads,
"except for construction work within easements of record within Makalei Estates on the water
system." That's my understanding of the motion. Is that correct, Mr. Van Peniis?
VAN PERNIS: That's fine with me.
VITOUSEK: What,I'm sorry,what was the first part of the motion? Was that just editing the
condition, or was that offering a recommendation for the overall?
JACKSON: The motion is to—
CARR SMITH: Can you refer to the recommendation, please?
JACKSON: The motion was to forward a favorable recommendation to the County Council as
recommended by the planning director,with those two changes that I mentioned.
VAN PERNIS: I didn't make the motion for favorable recommendation. I think that my motion,
seconded by Mr. Vitousek,would be an amendment to wherever the referral is. If someone
would care to make a motion that would be seconded, then this would be an amendment to that.
JACKSON: Okay, so the motion was just relating to amending the conditions, not—
VITOUSEK:
otVITOUSEK: That's—
JACKSON: —okay, thank you.
VITOUSEK: —that's what I seconded, not,not the favorable.
JACKSON: Okay.
VITOUSEK: And—
CARR SMITH: Mr. Newberg. Go ahead, Max.
NEWBERG: Thank you, Chair Smith—Mike, did you want to finish there right before I came?
VITOUSEK: Sure, I just, procedurally,there is another amendment that I would like to add, and
I don't know if you want to take that now or, as part of this motion, or if you want to vote on this
and then move on to the next.
CARR SMITH: Hmm, well,we are doing this a little differently than we usually do, so we are
going to vote on amendments. I'd rather see whether—
41
EXHIBIT B
VITOUSEK: Okay—
CARR SMITH: —is this moving toward a favorable recommendation? You are willing to
accept the director's recommendation, if these things can be amended? Is that what you are
saying? Mike?
VITOUSEK: For me, yes. I would be willing to go with the favorable recommendation for the
project, if we can incorporate a couple of changes in the, or recommend a couple of changes to
the county. For me, it's Condition S. For Commissioner Van Pernis, it's the discussion on
Ka`iminani [sic] Drive. So,procedurally,I'm open to any method of doing that.
CARR SMITH: All right, go ahead and tell us what your recommendation is,please.
VITOUSEK: My recommendation is to amend Condition S to indicate that a park master plan
for Phases I and II will be developed by the applicant and accepted by the Department of Parks
and Rec, and Recreation; I keep the Phase I language the same, and then Phase II section would
be "Phase II, consisting of a total of 10 acres of land, shall be developed in accordance with the
approved park master plan and provided to the county at no cost prior to"—and just looking at.
the other conditions,I selected 500 units—"prior to the completion of construction of 500 units."
CARR SMITH: Mr. Van Pernis.
VAN PERNIS: If that's a motion,I second it.
CARR SMITH: All right, okay, so,was that a motion, Mike? Or was that just—
VITOUSEK: I'm asking—if you'd like, I will make a motion that we—
CARR SMITH: I think we need to deal with the motion on the table, if we are going to—
VITOUSEK: Okay.
CARR SMITH: —the motion here. So—
VITOUSEK: Let's vote on it and move on.
CARR SMITH: Yeah, yeah, so we'll back up to Mark's motion that Mike seconded,we had
discussion about what that was. Are there any other questions about that? Max.
KEALOHA: I would,I would just like to make sure that—
CARR
hatCARR SMITH: Oh, Perry.
KEALOHA: —the developer is okay with that again before I hear it, because it kind of seems
unnecessary to some degree.
42
EXHIBIT B
CARR SMITH: Which one are you talking about,Perry?
KEALOHA: Staying within the easements, I mean, as far as I'm concerned,that's expected
anyway. But I'm okay with it, if the developer is okay with it.
HARRIS: This is the developer. Is that, is that Condition Y?
KEALOHA: Correct.
CARR SMITH: Yes.
HARRIS: Yes, we are okay with staying within the easements, yes.
CARR SMITH: Max, did you have something to add?
NEWBERG: Thank you, Chair. I just wanted to mention I'm in support, if we want to change
that language with the Y. I was just uncomfortable with changing,the secondary proposal,with
changing anything that refers to Makalei to eastern border;that seemed to be getting into
troubled waters for myself not knowing what that would affect. I'm in support with the adding
language to Y, if that, again, it doesn't seem necessary, but if that makes Commissioners more
comfortable with it, I can support that. I was just concerned about getting into supplementing
language that referred to Mak-Mei Estates and changing that to a border that may not be
congruent.
CARR SMITH: Roger.
HARRIS: Yeah,we can't agree to the use of the northern border, or the eastern border. To our
knowledge there is no easement out there, and otherwise it's the easement is over the waterline
that's existing in the road, and then the future water tank sites that are existing as well. So the
language that Maija spoke of on Condition Y is good with us.
CARR SMITH: Mike.
VITOUSEK: If I might just try and summarize Commissioner Van Pernis's concern—and
please, Commissioner Van Pernis, correct me if I'm wrong—I believe that his issue is only in
clarifying where the road will be built to, and he's saying that Palamanui should commit to
building the road within Palamanui's property up to the eastern border of Palamanui, and not
commit to building the road within Makalei Estates because they don't have permission to do so.
That's my understanding, as it's just an effort to clarify the border in which Palamanui is
responsible to constructing up to.
CARR SMITH: Mark.
VAN PERNIS: Yes, Mr. Vitousek is correct. Mr. Colon, or Mr. Harris, is mistaken in thinking
that that part of the amendment has anything to do with the waterline or water easements; we are
43
EXHIBIT B
just talking that the application to build the road unrelated to the water is to the eastern boundary
or Palamanui, and that neither the county nor Palamanui intrudes into Makalei Estates beyond
that. So there's two on motion: One is water and the easements, and the other is the boundary.
HARRIS: We don't object to that concept. That's okay. I'm just—it doesn't match Condition
Y at this point,though.
VAN PERNIS: Condition Y.
CARR SMITH: Yeah,I'm not real clear why, why we have to talk about the border, if the road
has already been eliminated from the application. And it's understood that they can't go into
Makalei to extend the road, then why do we have to talk about the border? Mark.
VAN PERNIS: First of all, Mr. Fuke and Hunt picked up this problem, and there was a change
made in the ordinance by Mr. Yee to talk about eastern boundary. The eastern boundary is their
language, not mine. And there are still at least two—I gave them to the Planning Department—
they have the authority to correct it where it says roads will be connected to Makalei Drive, not
Makalei Estates, not Makalei, but Makalei Drive. And Makalei Drive does not abut the
boundary. So we don't want Palamanui going into.Makalei, passing down the gate or building
on vacant land in Makalei.
CARR SMITH: Thank you. Mike, I don't know what you were trying to show, I couldn't see it.
VITOUSEK: Yeah, I'm sorry, it didn't work, I was—
CARR SMITH: —lunch break or, what was that?
VITOUSEK: No, I was trying to draw a map,just trying to demonstrate what Mr. Van Pernis is
talking about. I really don't think this is that big of a deal; it's just establishing the boundary.
Palamanui can't go past their boundary no matter what, right? But as it exists,the condition is
required for connection with Makalei Drive, and all he is saying is construct Road 2, or
University Drive,whatever it is, up to the boundary of Palamanui. That makes sense. It's not
super controversial,I don't think, anyway. So I think we can just—it's what's going to happen
no matter what, the developer is going to build the road to the boundary of their property, and
it's, it's all they can do and doesn't really affect anything. It just clarifies that their building it up
to the boundary of their property and not into Makalei Estates. So there is, in my opinion,there
is no problem with it. I think we can move forward with it.
CARR SMITH: Mr. Colon, did you want to respond? (No audible response) I thought I saw
Mr. Colon getting in position. No? Roger, do you want to respond? Somebody from your side?
HARRIS: Yeah, we understand what they are talking about and we agree with that. And I—
CARR SMITH: Okay.
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EXHIBIT B
HARRIS: —implement it, I, if you just choose Maija's language, then Condition Y works. I'm
open to any other language that works as well.
CARR SMITH: All right. Okay, so we have an amendment on the table. Maija, do you mind
one more time telling us what the motion is just so—
VITOUSEK: Okay,I, for the first part of the motion—
CARR SMITH: No—
VITOUSEK: —the motion is to replace the language indicating that—
CARR SMITH: Sorry,Mike,I was asking Maija because she's the - --I want to make sure that
she has it: Thank you. Sony,Mike, Maija, close. Maija?
JACKSON: The motion is to remove all references to a connection to Makalei Drive, or replace
it with University Drive will be built up to Palamanui's eastern boundary, and then the second
amendment is to Condition Y,I believe it is still to read, "except for construction work within
easements of record within Makalei Estates on the water system."
CARR SMITH: Okay,thank you. All right, can we take a roll call vote for this amendment,
please, Maija?
JACKSON: Okay, so I already had an aye from Commissioner Van Pernis. Do you still agree to
VANPERNIS: - - -
CARR SMITH: Sony about that.
JACKSON: Okay. Commissioner Vitousek? Okay—
VITOUSEK: Aye.
JACKSON: Commissioner DeFranco?
DEFRANCO: Aye.
JACKSON: Commissioner Kealoha?
KEALOHA: Aye.
JACKSON: Commissioner Newberg?
NEWBERG: Aye.
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EXHIBIT B
JACKSON: Commissioner Yates?
YATES: (Inaudible aye)
JACKSON: And Chair Carr Smith?
CARR SMITH: Aye.
JACKSON: Okay, the motion passes, seven-zero.
CARR SMITH: All right, thank you. Okay, so, are we motioning—what's our next motion?
Are we ready to move toward the director's recommendation or something else? Mike.
VITOUSEK: Yes. At this point I would like to or I guess before I make a motion, I would like
to have a discussion on the idea—actually, you know what,I'll make the motion - - -that's how
you want. I'd like to make a motion that we provide a favorable recommendation to the County
Council for Palamanui Global Holdings LLC amendment of various conditions, Change of Zone
Ordinance number 09 132, REZ 05-10, as amended, with the additional amendment to Condition
S, stating that a park master plan for Phases I and II will be developed by the applicant and
accepted by the Department of Parks and Recreation; the Phase I improvements for this 10-acre
public park,that section will remain intact; and then the Phase II consisting of approximately a
total of 10 acres of land shall be developed in accordance with the approved park master plan
and provided to the county at no cost prior to the development of 500 units.
And I want to clarify in my motion that this could be many years down the road before this is
done, and the opportunity for the applicant to prepare their own park master plan that focuses the
required improvements on Phase II,while allowing them to create additional usable open space
that doesn't have to be developed into a,you know, high-use recreational park with lots of
facilities, but could be a passive open space environment that is maintained in an open space.
That will allow them the opportunity to develop what they want to do and implement it further
down the road after they've already brought in sufficient resources to pay for the construction of
it, and it will also allow the county to have the tremendously larger property tax base created by
the 500 lots that are now paying property taxes to allow them to maintain these parks a lot better
than they are now. So I think that this allows the developer the opportunity to maintain their
public benefit but have the relief of being able to construct something now with the plan for the
future improvements that don't leave the county with a big bill down the road in order to make
this extra 10 acres useful for the people who are living there.
CARR SMITH: Mr. Van Pernis.
VAN PERNIS: I second the motion, and I want to say that Mr. Harris's reference to
Pete Hoffmann is many, many years old, and there is no Kealakehe regional park. So I second
the motion.
CARR SMITH: Some discussion on this?
46
EXHIBIT B
YATES: Yep.
CARR SMITH: Go ahead, Faye.
YATES: Hi. Just for clarification purposes,just so you all understand, is that I'm not against
any of the parks or having a park. I'm not against anything at all having to do with the park. All
I was trying to do is clarify to all of you—because I noticed that you all jumped on it when I had
my concerns about the park—I'm not against the park. I'm against, you know, I'm not against
anything, I'm just clarifying that,you know, it does take monies and it does take effort for those
parks to be maintained. And I think it's a wonderful thing to have a park.
CARR SMITH: I agree, Faye. Go ahead, Perry.
KEALOHA: Yeah,I kind of echo Faye's position in that I don't know it is reasonable to expect
the developer who is already committing to a 10-acre park,which they are going to fully build
out and turn over to the county,to have their development subject to whether or not the county
wants additional land or is ready to assume it. You know,they can make the recommendation,
they can provide a master plan,but if the county says they are not ready to move forward,then
they cannot be held up in the future. Again,they can control what they can control,but it seems
like we are asking them now you've got to have an agreement with the county and if the county
doesn't do it, then you can't proceed,you know. So, anyway,I think it might be an unreasonable
request to get that approval,the expectation of approval.
CARR SMITH: Barbara or Max, any input? Go ahead, Barbara.
DEFRANCO: Well, you know,I've always felt that maybe we ask to,now at this time, to our
community; now is the time that we should ask. What I'm hearing from Mike, it's not like he's
looking for fully developed 10 acres; he is looking for something that could just be an open
space park with nothing but some trees on it, right? I think that that is a reasonable request. And
he's not asking for a decision; he's asking for the opportunity for this to happen in the future. I, I
understand also that I don't want to hold up this project over a park, you know,but I do think
that this would be the time to discuss this, if we are going to do it.
CARR SMITH: Thank you,Barbara.
VITOUSEK: Yeah, and the intention is for them to create a park master plan that works for
them, that serves the community need, and then develop and give that over to the county in a
way that they deem appropriate,that the developer and the county division of Parks and Rec
deem appropriate. That would be the point of having a park master plan approved by P and R.
So I think that we are looking very long term,with their buildout over the next 20 years, and the
community needs are going to change. Adding 900 units in that immediate vicinity is going to
necessitate more park space. And it's going to be an asset for the developer. It's going to an
asset for the community. And,you know, it's, for us, it's truly a recommendation for something
the CountyCouncil to consider. If we want—if the CountyCouncil decides it's not important,
then they can take it out, but for us, it's putting the language in there saying the County Council
should consider the option of creating a park master plan that allows the developer to
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EXHIBIT B
sequentially build a park for the community in keeping with the existing conditions for approval.
So we are not adding any conditions for approval on this; in fact,we are reducing the conditions
of approval that already exist on this zoning ordinance. We are giving them relief and allowing
them to reduce the scale on the size of the park initial improvements and the timing allowing
them to build it after they've substantially completed multiple lots and at that point brought in
significant revenue to pay for it. So even with this proposal,we are still giving them relief in
order for them to move forward with the project.
CARR SMITH: Roger, did you- - -respond to that, your thoughts on that?
HARRIS: Yes, thanks for the discussion. We are going to work with the Parks department on a
master plan. We've always said it'll be broken into two phases: the 10 acres with- -- second 10
acres. I hear what everybody is saying. I want to say, according to the Kona Community
Development Plan, we have to build significant mini parks in the various subdivisions and
phases that the Parks depattiuent says they don't want to accept, and that the association will
have to maintain. So there will be other recreation areas. The third,we are open to listen and
work with the Parks department on Phase II, and possibly there is a minimal improvement
scheme, you know, for open space- - -help fund,but at this point we can't commit to an
absolute - -- so we like the condition wording the way it is. Maybe you can tweak it a little bit,
but- - -
CARR SMITH: Thanks, Roger. Mike, I know you said a lot after your motion. Can you go
back and simplify the motion- - -
VITOUSEK: Sure, one second, I'll find the, the language.
CARR SMITH: Max, did you have anything at this point? You were the only other one, I think,
to speak on this topic. Go ahead.
NEWBERG: I just look forward to hearing the clarified—
CARR SMITH: Okay.
NEWBERG: —amendment by Mr. Vitousek.
CARR SMITH: Very good. Go ahead,Mike.
VITOUSEK: So if we are amending the ordinance Condition S, or recommending the
amendment of the Condition S, "The applicant shall provide a minimum of twenty (20) acres of
land for a public park and neighborhood open space in accordance with the Kona Community
Development Plan," at that point I would insert, "a park master plan for Phase I and II will be
developed by the applicant and accepted by the Department of Parks and Recreation."
CARR SMITH: Period?
VITOUSEK: Yeah.
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EXHIBIT B
•
CARR SMITH: Okay.
VITOUSEK: And then,the next language is the same, "ten (10) acres of which shall be
developed by the applicant and dedicated to the County during Phase I,"that's all the same,
everything, nothing would change in that first portion of it. And then,the third one from the
bottom where it says, "Phase II park improvements,"I would amend that to say, "Phase II-park
improvements, consisting of approximately a total of 10 acres of land, shall be developed in
accordance with the approved park master plan and provided to the county at no cost prior to the
development of'—and this is the part that I have a hard time with is finding the condition at the
end that the applicant will be agreeable to,but for the sake of the amendment, I'll put"prior to
the completion or building permit on 500 units." So I guess we can look at the previous
language. What is the existing trigger for Phase I?
CARR SMITH: Roger, go ahead.
HARRIS: - - -
CARR SMITH: Roger, can you unmute?
HARRIS: Two hundred and fifty units.
VITOUSEK: Two hundred and fifty, so,you know, requesting additional, after, after 250 more
units to develop this remaining portion of the park master plan. And, again, we can put in a
language that it's okay for having it to be a low-impact passive open-space area. But, to me, it
makes sense to include that in our recommendation.
CARR SMITH: Okay. Go ahead, Barbara.
DEFRANCO: If you include in the language that he suggested, "minimal development,"he had
some language that he seemed to be okay with.
CARR SMITH: Who is "he?"
DEFRANCO: Well, he is under Laura Aquino,but I'm not sure—
CARR SMITH: Oh, Mr.Harris, okay.
DEFRANCO: Yeah, so he used that word, "minimal" something. Maybe they would be
agreeable, if we put minimal - - -
VITOUSEK: Yeah, I mean, to me, it's,the most important thing is that they take the time to do
a master plan that works for them, and if that's what is included in the master plan at the end,
then, great, that's the idea. So if there is something else that they'd rather have in there that isn't,
and if they can do that in the master plan, but thedetails of the park improvements would be
established in the master plan,then it covers it.
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EXHIBIT B
CARR SMITH: Roger,you good?
HARRIS: Yes, we can agree to - - -master plan for second phase includes minimal
improvements, and---we are fine with that.
CARR SMITH: Okay. All right. No more discussion on this? We have a motion on the floor
to accept the director's recommendation to send a favorable recommendation to the County
Council, as amended previously for the vote we took on Mr. Van Pemis's amendments, and then
these that-- -. Yes? Maija, could you take a roll call,please?
JACKSON:-Yes. Commissioner Vitousek?
VITOUSEK: Aye.
JACKSON: Commissioner Van Pernis?
VAN PERNIS: Kanalua.
JACKSON: Commissioner DeFranco?
DEFRANCO: Aye.
JACKSON: Commissioner Kealoha?
•KEALOHA: Aye.
JACKSON: Commissioner Newberg?
NEWBERG: Aye.
JACKSON: Commissioner Yates?
YATES: (Inaudible aye)
JACKSON: Commissioner Van Pernis?
VAN PERNIS: I thought I already responded. Kanalua.
JACKSON: Okay, and Commissioner Carr Smith?
CARR SMITH: Aye.
JACKSON: Okay,the motion carries, six to one.
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EXHIBIT B
CARR SMITH: Thank you. All right, moving on to Agenda Item number 2. We need a motion
for this,please. Perry - --
VITOUSEK: - - -
CARR SMITH: Sony?
VITOUSEK: Sure, I move that a favorable recommendation be forwarded to the County
Council in regards to Palamanui Global Holdings, LLC, amendment of Condition E, change of
zone ordinance number 09-131, rezone 09-094.
CARR SMITH: Thank you. Is there a second?
KEALOHA: I'll second.
CARR SMITH: Thank you. Motion by Mr. Vitousek, second by Mr. Kealoha. Moving on to
discussion. Mr. Van Perris.
VAN PERNIS: Yes. Is,I'd like to add the same amendments from me and Mr. Vitousek
attached to the recommendation.
CARR SMITH: Is that appropriate, Maija?
JACKSON: Which conditions specifically are you requesting to amend? - - -
CARR SMITH: - -- same ones, but it's not the same.
JACKSON: No, they are different conditions.
CARR SMITH: Yeah.
VITOUSEK: This is the rezone for Project District to MCX, so it's not the same zoning
ordinance as the one we just reviewed, correct?
JACKSON: Correct.
CARR SMITH: Okay,we have a motion on the floor- - - discussion? (No audible response)
Okay, seeing no other discussion, Maija, are you ready to take a roll call vote?
JACKSON: Yes.
CARR SMITH: Thank you.
JACKSON: Commissioner Vitousek—oh, so just to clarify first, I'm sorry,was this a favorable
recommendation as recommended by the planning director?
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EXHIBIT B
CARR SMITH: Mike? Mike- - -
JACKSON: Uh oh.
CARR SMITH: Uh oh, his connection is getting weak, looks like.
VITOUSEK: Am I there? Am I there?
CARR SMITH: Yes, you are back. Go ahead—
VITOUSEK: Hello?
CARR SMITH: Go ahead.
VITOUSEK: Yes, that's the intent is that it's as recommended by the planning director.
JACKSON: Thank you.
CARR SMITH: Mr. Van Pernis.
VAN PERNIS: - - -because the recommendation includes the objectionable material that we
dealt with by my amendment and Mr. Vitousek's amendment—
CARR
mendmentCARR SMITH: No,we—
VAN PERNIS: —so the recommendation needs to be as modified by those amendments.
CARR SMITH: That's not what we were talking about. Mike, you want to clarify for him?
VITOUSEK: Sure. My understanding is that this doesn't involve the same zoning ordinance
that we just reviewed; it's, it's a separate zoning ordinance that changes the zoning from Project
District to Industrial-Commercial Mixed rezone. So we can't add- - -
CARR SMITH: You are frozen again. Do you understand what he said, Mark?
VAN PERNIS: Yes.
CARR SMITH: Those amendments don't apply here. Okay,very good. Are you good, Maija?
JACKSON: Yes.
CARR SMITH: Okay. We just need our commissioner back so he can vote. Can you try
opening up long enough to vote? We'll take a lunch break after this vote. Yes,Faye.
YATES: Can I hear that motion again, please?
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EXHIBIT B
CARR SMITH: It's a favorable recommendation. Do you want every word or? (No audible
response) Agenda Item number 2, favorable recommendation go to the County Council.
YATES: Okay, got it.
CARR SMITH: Mike, we need you. There you are. Can you try, maybe try without the camera,
Mike?
VITOUSEK: - -- how's that?
CARR SMITH: Can you say something?
VITOUSEK: Yes, hello?
CARR SMITH: Okay, all right,we are going to vote now.
VITOUSEK: Okay, cool.
CARR SMITH: Uh oh. Go ahead, Maija, let's try.
JACKSON: Commissioner Vitousek?
VITOUSEK: Yes.
JACKSON: Aye?
VITOUSEK: Aye.
JACKSON: Okay. Commissioner Kealoha?
KEALOHA: Aye.
JACKSON: I'm sorry, Commissioner Van ---
CARR SMITH: - - -Kealoha was second.
JACKSON: -- -yes.
CARR SMITH: Thank you.
JACKSON: Commissioner DeFranco?
DEFRANCO: Aye.
JACKSON: Commissioner Newberg?
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EXHIBIT B
•
NEWBERG: Aye.
JACKSON: Commissioner Van Pernis?
VAN PERNIS: Kanalua.
JACKSON: Commissioner Yates?
YATES: Aye.
JACKSON: Chair Carr Smith?
CARR SMITH: Aye.
JACKSON: And Commissioner Van Pernis? Commissioner Van Pernis?
VAN PERNIS: You are asking me—
CARR SMITH: (There were echoes.) Mike, you have two things open.
VAN PERNIS: Kanalua.
JACKSON: Thank you. Motion carries, six to one.
CARR SMITH: Thank you very much. Thank you, Roger,Mr. Colon, everybody else involved
in your project. Great efforts for the community,thank you. You'll be notified in writing of our
decision. Good luck at the County Council level. Thank you, Ross.
HARRIS: Thank you very much, everyone.
(Chair Carr Smith called a lunch recess at 1:20 p.rn. She called the meeting back to order at
1:57 p.m)
CARR SMITH: Thank you. So we'll bring the meeting back to order. It's 1:57. I was thinking
during our break, and I was kind of confused by Mr. Van Pernis's kanalua vote, and it's my
understanding that kanalua means pass, and I believe that's why Maija came back to you for,
your vote later. I don't think kanalua means that I don't want to say yes or no. So, anyway,I
was in touch with Malia Hall, our corp. counsel, over our break and—Malia, you want to chime
in?
HALL: Sure. I just wanted to clarify for the record as well, like, our planning commission rules
do not include kanalua in a voting, and neither do Robert's Rules. Kanalua actually comes from
council rules. So if that's something that the commissioners would like to use in the future,I
would suggest that we add it to our voting rules within the planning commission rules, because,
yes, even—so it's Rule 10 in the council rules, and as Chair Can Smith has pointed out, you say
kanalua, in the rule, in the council rules basically, it comes back to you, and then you have to say
54
EXHIBIT B
yes or no at that point. It's basically I have reservations, but you still have to end up voting in
the end. So,I don't know if Commissioner Van Pemis's was a yes or a no, or just an abstain.
That's pretty much what our,the planning commission rules include as it's either a yes vote or a
no vote or I'm not going to vote. So,just for a clarification.
CARR SMITH: So, do you want us to ask Mr. Van Pernis what his vote was there since kanalua
isn't a real vote?
HALL: Sure, I mean,we can clarify for the record, and then notify the applicant on whether it's
a vote for or against or abstention.
CARR SMITH: Sounds good. Mr. Van Pernis, can you respond,please?
VAN PERNIS: I clarified this with Mr. Darrow, and my position is abstain.
CARR SMITH: Abstain, okay, on both of those agenda items. Is that correct?
VAN PERNIS: I voted in favor of Mr. Vitousek's amendment, but I abstain on the
recommendation.
CARR SMITH: Right,very good. We are good,Malia? (No audible response) Okay, thank
you.
The hearing ended at 2:00 p.m.
Respectfully submitted,
Noriko Sauer, Secretary
Leeward Planning Commission
55
EXHIBIT B
LEEWARD PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
DECEMBER 17, 2020
A regularly advertised continued hearing on the application of DPM ACQUISITION LLC
DBA DIAMOND RESORTS INTERNATIONAL (FORMERLY PACIFIC MONARCH
RESORTS, INC.) (AMEND SMA 388)was called to order at 9:56 a.m.via live-stream online
meeting,with Chairperson Nancy Carr Smith presiding.
COMMISSIONERS IN ATTENDANCE: Nancy Carr Smith, Barbara DeFranco,Perry Kealoha,
Max Newberg, Mark Van Pernis, and Michael Vitousek
ABSENT AND EXCUSED: Faith"Faye" Yates
ALSO IN ATTENDANCE: Malia Hall, Esq. (Counsel for the Commission), Zendo Kern
(Planning Director), John Mukai, Esq. (Counsel for the Planning Director),Jessica Andrews
(Planner), Jeff Darrow (Planning Program Manager), Tracie-Lee Camero (Planner),
Rachelle Ley (Secretary to the Planning Director), and Noriko Sauer(Leeward Planning
Commission Secretary)
APPLICANT: DPM ACQUISITION LLC DBA DIAMOND RESORTS
INTERNATIONAL (FORMERLY PACIFIC MONARCH RESORTS, INC.)
(AMEND SMA 388)
Application to amend condition No. 2 (Time to Complete Construction) of Special Management
Area Use Permit No. 388, which was issued in 1998 to allow the development of a
commercial/condominium complex and related improvements on 76,739 square feet of
land. The property is located on the makai side of Ali`i Drive bounded by Ali`i Drive and
Kahakai Road, south of Royal Kona Resort and north of Kona Reef Condominium, Pua'a 3rd,
North Kona, Hawai`i, TMK: (3) 7-5-018:011.
Secretary's Note: "---" indicates indiscernible speech due to internet/technical difficulties or
simultaneous talk.
CARR SMITH: Agenda item number 2,the applicant is DPM Acquisition LLC dba Diamond
Resorts International, formerly Pacific Monarch Resorts, Incorporated. AMEND SMA 388,
application to amend condition 2,time to complete construction, of Special Management Area
Use Permit number 388,which was issued in 1998 to allow the development of a
commercial/condominium complex and related improvements on 76,739 square feet of
land. The property is located on the makai side of Ali`i Drive bounded by Alii Drive and
Kahakai Road, south of Royal Kona Resort and north of Kona Reef Condominium, Pua'a 3rd,
North Kona, Hawai`i. The TMK is (3) 7-5-018:01L Jessica, are you ready to provide us with an
update of— ,
1
EXHIBIT B
ANDREWS: Yes. Hi, good morning, Commissioners. I was first going to ask Commissioners
and Chair Carr Smith—I wasn't planning to present the entire presentation for their application
once again,just to,just to provide an update—is that agreeable to everybody or is there anybody
who would like to view the presentation?
CARR SMTIH: I would guess that we are all good for an update. Is that correct? Can I have
some thumbs up? Or down, if you feel differently. (No audible response) Okay, I think we are
good for an update. Thank you, Jessica.
ANDREWS: Okay,thanks. Just give me a second here; I'm going to pull my presentation up,
and I'll forward it to the last slide, so bear with me for just a minute here. Okay, let me know if
you see the presentation screen. Everybody good? (No audible response) Okay.
CARR SMITH: Looks good,thank you.
ANDREWS: Okay, I'm just going to advance through, so you'll get a—sorry, it seems it's,not
working here, actually, I think I can jump forward, here we go—you'll get a very fast review
here.
Okay, so the planning director is recommending approval with conditions on this application.
And there was a submittal that the commissioners should all have received recently from the
applicant, and I'll just summarize here on the screen what was included in the applicant's
statement. The applicant acknowledges the Planning Commission's comments and responds to
the request for information as follows: The applicant intends to construct a building consistent
with the 2017 approvals, which was 46 three-bedroom units, but with added value engineering
and design modifications to make the design more cost effective;there will be no retail
component at this time. The applicant intends to build the proposed building within the five-year
time frame in accordance with the following schedule—and, again,this is the applicant's
statement of the schedule—so it would be resubmittal to the Planning Department for final plan
approval in 2023; submittal for building permit approvals in 2023 or 2024; construction to be
completed before the end of 2025. The applicant is considering the following options for
ongoing site maintenance: A primary point of contact for management and maintenance of the
property; regular maintenance of fencing and scrim as necessary; and, cleaning of graffiti from
all walls as necessary. And I believe the applicant could further clarify how those will be, will
happen, or any further questions about this, but this was proposed by the applicant after the last
Planning Commission meeting.
Are there any questions? I see Commissioner DeFranco.
DEFRANCO: So—
CARR SMITH: Yeah, go ahead, Barbara.
DEFRANCO: So my question is in their response, "the applicant is considering the following
options"; what does that mean? That means that they are thinking about this, they are committed
to doing this? What does that mean?
2
EXHIBIT B
ANDREWS: Yeah, you might want to clarify with the applicant,but my guess is—
DEFRANCO: Okay
ANDREWS: —this is their proposal.
DEFRANCO: Okay,thank you, I'll wait. Thank you.
CARR SMITH: I can't see all the commissioners, so—
ANDREWS: I see Commissioner Van Pernis.
CARR SMITH: Go ahead, Mark. Jessica, you can pull down the screen.
ANDREWS: Yeah, I think—
CARR SMITH: Thank you.
ANDREWS: Yes, I can stop sharing—I'm sorry, that is probably blocking your view.
CARR SMITH: There you go. Thank you. Go ahead, Mark.
VAN PERNIS: - - -
ANDREWS: I think he is muted.
CARR SMITH: Mark,you are muted. There we go,try that.
VAN PERNIS: - --
CARR SMITH: Noriko, there might be something wrong with the microphone.
(Pause–technical issue)
ANDREWS: I think we are working on the sound issue.
CARR SMITH: Yeah,that's fine.
ANDREWS: Yeah.
CARR SMITH: It seems like the camera moved in Kona, too, unless Mark moved his chair. I
think Noriko is alone,though, so—oh, there we go.
ANDREWS: Yeah, we've just been in touch with the Kona side and are trying to fix the issue
now.
3
EXHIBIT B
CARR SMITH: No problem. You guys want to take a five-minute break? (No audible
response) Okay, let's do that. It's 10:05, we'll be back at 10:10. Thank you.
(Chair Carr Smith called a recess at 10:05 a.m. She called the hearing back to order at
10:14 a.m.; however, the technical issue with Commissioner Van Pernis's microphone was not
resolved.)
CARR SMITH: Okay,we are going to move forward with the applicant's presentation. I
believe we have Sidney Fuke here, Kim Yoshimoto, and Evan Oue. Is that correct? (No audible
response) All right, thanks,you guys (technical issue–echo).
ANDREWS: I think on Kona side we are getting a feedback, so, need to shut off the
microphone.
CARR SMITH: Very good. The three of you, please raise your right hand. Do you swear or
affirm to—Evan, thank you—do you swear or affirm to tell the truth on this matter before the
Leeward Planning Commission?
OUE: Ido.
FUKE: I do.
YOSHIMOTO: I do.
CARR SMITH: Thank you. So whoever is going first, please state your name, area of
residence, and elaborate on your November 13th letter and respond to any concerns raised by
testifiers, please. Go ahead.
FUKE: Got it. Good morning,Madam Chair,Members of the Commission. My name is Sidney
Fuke. I'm a planning consultant. I reside in Hilo,Hawai`i. I don't know whether—you've
already acknowledged the presence of Ms. Kim Yoshimoto and Mr. Evan Oue, the applicant's
attorneys, so they may testify specifically as it relates to questions that relate to ownership; I
mean I know one of the testifiers had raised the question as far as the validity of the applicant
being, you know, whomever it is, so if the commissioners find the, a response to that question is
relevant, I'm sure that they are prepared to respond to that.
What I would like to do is like, you know, during the course of my re-presentation, is to- - -
some of the other concerns or comments raised by the two testifiers. But before doing so,
however, or in conjunction with that, I'd like to kind of initially reconfirm the applicant's
acceptance of the staff's background report and their proposed recommendation, and more
specifically now to respond to the Commission's request for additional information as provided
in the, as we provided in our November 13th letter. Essentially, you know,there are, several
questions were, you know, relating to the nature of the project, timetable, and also the issue
relating to the graffiti and homelessness on the property, so I'd like to kind of address all three.
4
EXHIBIT B
First of all, in terms of the nature of the project, I—one of the testifiers said that the, you know,
the plans that accompanied the notices were like somewhat different from the 2017 plan; it is
true, but, you know, it's not necessarily significantly different. What was provided was the plans
that were originally approved, and generally, the plans that were approved in 2017 under the plan
approval, were not significantly different in terms of the size and the scope, so on and so forth.
Related to that was the question about, well, you know, in 2000-you know,when the initial
estimate was granted, it was supposed to be for a residence as opposed to like a timeshare. At
that time when it,what,the proposed use was going to be a condominium. Now the most recent
iteration is to have a timeshare. But, nevertheless, what we are talking about is the form of
ownership; you know, a condominium is owned by one, multiple, whereas like the timeshare,
you have multiple ownership, nevertheless, it's one unit that's being now considered. So the
plans in concept were approved., The more detailed plans were approved in 2017. And
essentially, that is, the current thought of the applicant right now is to proceed with a plan that
generally follows along those lines. Those plans were found in the applicant's, you know,
submittal I think dated November 13th. But, and they were also found in the Planning
Department's Exhibit number 7,you know, off your report. So if you want to see a little bit
more details as far as what was approved back in 2017, I think those are your two primary
references. Essentially,those plans kind of reflected a four-story,no higher than 45-foot
structure, 46 three-bedroom units. The original plan called for like 48 two- and three-bedroom
units. So what it amounts to right now is the approved plans in 2017 approved plans reflect like
a two-unit reduction. I think the other thing to consider is that the approved plan now does not
contain a 7,000-square foot retail, commercial retail area,whereas like the original plan called
for like a retail kind of component, so you would have like traffic from the surrounding
neighborhoods visiting, you know,the site, sort of like the, how the King Kamehameha shopping
center,you know,the King Kamehameha Hotel is now operated by the Marriot, you know, you
would have like a shopping area where it's not only caters to the occupants of the hotel but also
visitors from outside. There may be like a small little sundry area for occupants of the project,
but at this point in time they have abandoned the thought of having like a commercial area for,
that would be geared for outside people coming into the complex. The approved plan back in 19,
2017 rather,you know, reflected 119 parking spaces; the minimum required for, you now, 48, or
46-unit condo is essentially only 58,but what they are proposing is 119. So essentially, they are
having 60 more stalls.
And, you know, as we pointed out at the last public hearing on this matter, you know,the
applicant is going through like a value engineering, and they are trying to see like whether they
really can construct the building as was approved back in 2017, and they are doing that right
now. And they are going to make some adjustments to it,you know, based upon the value
engineering, and nevertheless, they are going to have to come back again to the county Planning
Department for recertification or new approval on a plan approval. So this relates to the second
question that the commissioners had raised; that's the issue of the timetable. So based on the
staff's recommendation,you know, they have a five-year window to complete. Nowa obviously,
they are going to do their best to complete it,because, you know,within that window,because
they do not wish to reappear before this Planning Commission and, you know, like face also the,
any adverse public or agency kind of comment relating to the project. They have an obligation
to complete it, and that's, that's their goal right now. You know, like, we have to add a little bit
of qualifier in terms of like the specific timetable, I mean, you know,the applicant's attorney did
5
EXHIBIT B
provide a specific timetable, but we don't know exactly like what the impact of the pandemic
and the overall condition of the global economy we'll have in terms of project financing, and,
which could affect the development schedule. But, notwithstanding those situations, this is
where the applicant is coming from,their hope. Their hope is to secure like a final plan approval
by the end of next year or maybe the first quarter of 2022,but definitely no later than 2023,
because they have to work backwards in terms of having it completed by December of 2025. So
they are kind of like working backwards from that. So if you assume that they can get your final
plan approval maybe by the first quarter of 2022,then the building permit would be secured by
the end of 2022 or earlier part of 2023. They would begin construction in 2023 but definitely no
later than the start of 2024 because, you know,you are looking at maybe a good,you know,
12-to 18-month construction window because their deadline is to have it completed by
December of 2025.
The last issue I think was raised, you know, specifically in regards to the onsite maintenance, and
it's a concern that the owners are very aware of, I mean, like everybody, I mean I would feel the
" same way, if I were a resident of the Kona Reef condo or any of the surrounding areas. So even
like C. J. Kimberly, you know, who is a good friend of mine as well, you know, I would have
some concern of,you know, having this homelessness or this litter, the graffiti. So, what, what
they would like to do is like—you know, what was contained in the letter is just saying like this
is how(technical issue–echo)you know,we would address it by having maintenance security to
address like graffiti, the grass, the litter, fence,the homelessness—so what we would like to do
is, you know—because I think one of the commissioners mentioned about like,well, what
specifically are you referring to, so I can understand that because the letter was not necessarily
clear—what we would like to suggest is that the condition, I'm sorry,that the Commission
impose an added condition that requires the applicant to provide a site maintenance program,you
know,to the Planning Department so that it gets reviewed and approved by them, and that
maintenance program would have to address things like how you are going to secure the site,
who is the contact information, and how long it's going to last,what's your implementation
timetable, so on and so forth,you know, and that gets provided and approved by the county
Planning Department, and once it gets approved,then, you know, they can start to really begin to
aggressively address this issue. If there is any infraction on that,then there would be cause for
the Planning Commission to bring this whole permit up again,you know, for consideration for
--- comply it with the appropriate condition. So,that is a condition that we would like to
suggest to the Commission that you,you know, strongly consider just to specifically address the
issue of homelessness and maintenance. It is a concern to the applicant, too, because they've
tried to secure as best as they can, you know,to prevent the area from homeless people from
coming in, but as one of the testifiers, or probably I think Commissioner Van Pernis, noted that
people were kind of like squeezing in, you know, like through the gates. Other situation they've
kind of like broken the gate,you know, like through, finally,you know, somehow find their way
to get into that area. So it requires the aggressive maintenance, aggressive security, and that's
the idea; to have a program submitted to the county, let them approve it, and then you have,you
know, a very legitimate enforcement program.
Other than that, I mean,you know, if you have questions to whatever I presented or questions of
either of the attorneys, we are more than happy to respond.
6
EXHIBIT B
CARR SMITH: Thank you, Sid. Kim, go ahead.
YOSHIMOTO: Sorry,just quickly—Commissioner,I know you have a question—I just wanted
to also state that they are currently contracted with a security company; they are not
professionals. They want the best advice as to how to control all of the issues that have been
brought up in testimony and that the neighbors have experienced. And they are also under
contract with a vendor. So this isn't—I know, I apologize that it's a, consider there is a commit-
there is a strong commitment, as Sidney brought up first.
CARR SMITH: How long has the security company been under contract?
YOSHIMOTO: I, I don't know, but it's been relatively recent.
CARR SMITH: Okay.
YOSHIMOTO: Yeah, following the recommendations and the discussion we had at the last
hearing.
CARR SMITH: Okay,very good. Evan, did you have anything to add at this point.
OUE: Nothing to add at this point.
CARR SMITH: Thank you. All right, we'll move on to questions from commissioners.
Mr. Van Pernis.
VAN PERNIS: Yes. The system has failed over here. I'm using Noriko's personal computer,
so let me know if there is a problem. I would like to ask some questions of the staff first before I
ask Mr. Fuke some questions. The questions that I was unable to ask the staff.
CARR SMITH: Go ahead.
VAN PERNIS: Thank you. Did the staff investigate or consider whether or not the entity
applying for this extension existed at the time?
CARR SMITH: Jessica, did you understand the question?
ANDREWS: No, I'm sorry, could you repeat the question?
VAN PERNIS: Did the department investigate whether or not the entity was registered and
existing at the time the application was made?
ANDREWS: The entity,the—
VAN PERNIS: I'm sorry I can't hear you.
ANDREWS: I'm sorry. Did you say the entity? What entity?
7
EXHIBIT B
VAN PERNIS: The applicant. The entity that is the applicant.
CARR SMITH: And were they the owners when they applied for this? Is that what you are
saying? I'm not following you.
VAN PERNIS: If the entity existed—
CARR SMITH: If the entity exists—
VAN PERNIS: —some public testimony that the entity did not exist as of 2011.
ANDREWS: I don't have anything to add on this,I'm sorry,I don't have any answer for you,
but I wonder if maybe the applicant's agent can address your question.
VAN PERNIS: The answer is the staff or the department did not look into that, correct?
ANDREWS: That was not an issue that we looked into.
VAN PERNIS: And the SMA that's involved here has expired. Is that correct?
ANDREWS: No, it was not expired when they submitted the application.
VAN PERNIS: But it's expired now.
ANDREWS: It has since expired through the course of the review process, but they did submit
the application prior to expiration date.
VAN PERNIS: Thank you.
CARR SMITH: All right, thanks, Jessica. Let's—
VAN PERNIS: I have some questions of Mr. Fuke also—
CARR SMITH: Sure, go ahead.
VAN PERNIS: Mr. Fuke,the traffic situation at the site has changed over the last 22 years,
correct?
FUKE: (Inaudible—muted) Oh, I'm sorry—yes, I would imagine so. It has changed like the
rest of the island.
VAN PERNIS: Has any traffic study ever been done for this area?
FUKE: I think like, as I noted earlier in the initial presentation on this matter back in October,
that as part of the SMA review process a traffic study is not required or is not needed,you know,
8
EXHIBIT B
unless you can show a direct bearing between the traffic as it relates to coastal zone management
objectives, you know, and that was pursuant to the Topliss versus county Planning Commission
decision that was rendered by the state Supreme Court, or the Intermediate Court of Appeals.
So, you know, given that, then there was like no traffic study done. If they were, if this were like
a rezoning time extension, then very definitely pursuant to the concurrency provision of the
zoning code, a traffic study would have been required. So the short answer to your question is
that no traffic study was done in conjunction with the original, neither for this current time
extension request.
CARR SMITH: I think we heard that last time as well. Mark, you are not I can't hear you.
You are muted, I guess.
VAN PERNIS: (Inaudible—muted)
HALL: Can Rachelle unmute him?
CARR SMITH: It's, it's Noriko's deal.
VAN PERNIS: Can I be heard now?
CARR SMITH: Yes, go ahead.
VAN PERNIS: Thank you.
CARR SMITH: Go ahead, Mark.
VAN PERNIS: All right, thank you. The letter of Mr. Oue and Mr. [sic] Yoshimoto,I've
written this kind of letters,too, as an attorney, and this is a way to avoid a commitment; it says
the applicant will consider or intend, but there is no commitment. Will the applicant commit to
taking care of the homeless problem,putting it to—look, they are not going away—will the
applicant commit,not consider or intend, but commit, to dealing with the homeless problem
immediately?
CARR SMITH: On the property.
VAN PERNIS: That's a question for Mr. Fuke.
YOSHIMOTO: Oh—
CARR SMITH: Well, you, you were referring to the attorneys' letter, so let's let Kim or Evan
respond, please.
YOSHIMOTO: Sure—
VAN PERNIS: I'm asking—all right, then let me ask other questions-
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EXHIBIT B
CARR SMITH: Mark,Mark, Mark, let's not get confused. You had a question; let's have them
respond, okay?
VAN PERNIS: Okay.
CARR SMITH: Thank you. Kim or Evan,please.
YOSHIMOTO: Yes,I can respond. Thank you, Chair, and thank you, Commissioner, for your
question., I know you were having some sound issues, so earlier I said, and you are correct, it
shouldn't, the letter shouldn't have said consider; there is a commitment, and Sidney offered an
actual condition that would require us to do that within a period of time. So with regard to
"immediately,"there needs to be some planning put into it, and, you know, a full plan created.
But we are committed to,to the condition that Sidney put forth within the time frame that is
specified.
VAN PERNIS: What time frame?
YOSHIMOTO: I'll let Sidney - - -
FUKE: Sure. I have a proposed language, and it probably, you know, it can be modified or
adjusted as the Commission or the staff might, might deem appropriate. But it would read
something along these lines: "The applicant shall provide a site maintenance program to the
Planning Department within 90 days of the effective date of this third amendment to address the
site's maintenance and security, which shall include an implementation timetable and contact
information of the responsible person or company. This program shall be in force until physical
construction of the project commences."
VAN PERNIS: So there is no immediate dealing with the problem; it's at least 90 days-plus
away.
FUKE: Well,I think, as Ms. Yoshimoto had indicated, the applicant has already retained the
services of a maintenance company, you know, to address that issue, so, that's kind of like
ongoing, but that may not necessarily be a comprehensive program as maybe envisioned by
either the Commission or the Planning Department. And so the idea is to submit the program
and have it vetted and essentially approved by the county so that there would then be
subsequently or moving forward a basis for the enforcement.
VAN PERNIS: So the security of the site is up to the Planning Department rather than the owner
themselves?
YOSHIMOTO: The plan is going to be presented to the Planning Department. Your question is
what's happening right now. As, you know, commission- one of the commissioners brought up
earlier, there was some breaks in the fence, that's trespass onto the property,we were aware of
that, there was fencing around the entire property. So these are people trespassing. And there
are actions being taken right now to close the fence and to deal with trash and graffiti. So,but,
it's not part of a comprehensive plan. What we are offering is a comprehensive plan submitted
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EXHIBIT B
to the Planning Department,based on recommendations from a professional security company,
which would be best practices, as opposed to us just try to react to every, you know, on a
case-by-case basis. I hope that answers your question—
VAN PERNIS: But you are not dealing with the problem now.
YOSHIMOTO: I think Chair-- -
CARR SMITH: There are many--- forward, Mark. Okay, any more questions—
VAN PERNIS: Let me ask,will you commit to a date by which the existing concrete
monstrosity will be demolished?
FUKE: I think that, as I mentioned earlier, like the current plan that was approved, the 2017 plan
that was approved, call for the retention of the partially completed structure, and moving forward
I think what the value engineering,you know, consultant is trying to do is like to seek the
appropriateness of retaining it or modifying it, and, you know,pursuant to a similar or like a
modified design. So at this point in time it would be premature for the developer,you know, to
affirmatively state that that structure will be removed or destroyed,because if it can be salvaged
and incorporated into a design that's generally pursuant to the 2017 plan approval, they'll
proceed and retain it.
CARR SMITH: Very good, thank you—
VAN PERNIS: Regardless of the legal maze of these, will the owner volunteer to conduct a
traffic study after 22, 23 plus five years, regardless of whether he technically was required to do
so then - --
CARR SMITH: Sid?
FUKE: Yeah, I'm sorry I didn't quite understand the question, Mark.
CARR SMITH: He wants you to commit to a traffic study.
VAN PERNIS: Regardless of the legal maze—
CARR SMITH: He's asking you if you will.
FUKE: No,I don't think that the applicant can make the commitment right now. You know,
there are like mitigation requirements in accordance with the staff's recommendation,I mean,
improving that portion of Walua Road and Alii Drive fronting, you know, the subject property,
but over and beyond that, having a traffic study—I don't know, I,personally, I would not
recommend that the applicant make that commitment.
CARR SMITH: Thank you, Sid. Max—
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EXHIBIT B
VAN PERNIS: But you—
CARR SMITH: —do you have a—Mark, Mark, I'm going to move on to another commissioner
just so we can keep everybody involved here. Go ahead, Mr. Newberg.
NEWBERG: Thank you, Madam Chair. I apologize, Mr. Van Pernis, if you have more
questions. Forgive me I'm going to use first names, but Kim, Evan, or Sid, is there anyone on
this meeting today that can speak for the owner? Is there anyone here that has that authority to
commit or not to commit to any of our proposals?
YOSHIMOTO: It depends on the proposal. With regard to traffic study,they would be
disinclined to do one;they are not legally required to. And I'd also like to point out, and I think
Jeff Darrow brought this up in the last hearing, it's very unusual to have condition number 4,
which is the Ali`i Drive and Kahakai Road improvements. The Planning Depatunent doesn't
normally require that, but we are willing to do it,notwithstanding the fact that this is very
atypical. So while we would be disinclined to do a traffic study,there is a commitment to
dealing with these types of improvements that we think would help movement in the area.
CARR SMITH: Did you—
NEWBERG: I appreciate the—sorry, Madam Chair?
CARR SMITH: Did you have something else?
NEWBERG: I just wanted to know if there is going to be proposals made or requests made, if
there is any—I would assume, you are here today, I was kind of hoping to see maybe, not only
attorneys and Sidney as the consultant, but maybe somebody that could speak, you know, for
Michael, the owner of Diamond Resorts, or,you know, I realize you folks are a very large
organization. I don't know if this is a situation where we are going to make any amendments. It
seems great that we've made a step forward, and there is commitment to secure the property, to
have a local contact for those that are neighbors to the property established. I'm just curious of,
you know, beyond that, if there is any proposals made, are you able to accept or speak on behalf
of the owner?
FUKE: Maybe I can just kind of answer. Yeah, I think your question is very germane,
Commissioner Newberg. I think that the attorneys are in the position to agree to certain
concessions, but areas that they cannot agree with,you know, like for example, I would not have
recommend, you know, going along with a traffic study, but other things relating to for example
like on the maintenance program, you know, if there are other languages that the commissioners
may have, I believe like the attorneys would be in the position to speak on behalf of the owner
and make that commitment. So it's really like the nature of task.
CARR SMITH: Very good,thank you.
NEWBERG: Fair enough. The only question I have, if I may ask one more, and I would assume
that maybe the attorneys that would be appropriate to ask, I know in dealings in the State of
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EXHIBIT B
Hawaii with international resorts and timeshare companies; is Diamond Resorts willing to
commit to using local labor force from the State of Hawai`i, as they build this construction
project?
YOSHIMOTO: I, I don't think,I don't think they can commit today. That can't be a condition
to this,but I'm sure they are open to conversations in the future. I work with,just,just so you
know, I work with several unions here locally, and that question was posed to me, and that's
certainly a discussion that's going to happen at some point, but I don't think we can make a
commitment today. But just so you know, I have had discussions with, with a number of
different unions.
NEWBERG: To be clear, it wasn't a union question at all, and—
YOSHIMOTO: I was just wondering—I'm sorry.
NEWBERG: I do appreciate the sentiment.
YOSHIMOTO: Thank you.
CARR SMITH: Thanks,Max. Mike, go ahead.
VITOUSEK: Can everyone hear me? (No audible response) Okay, thanks. I do want to echo
Commissioner Newberg's concern about the lack of the developer here,you know, that was one
of the specific things that we requested in the previous meeting, because we do want to ask
questions about the feasibility of the development and then the noncompliance with the previous
conditions. Has there been any answer to the question that was asked in the previous meeting
about when the feasibility study was conducted?
FUKE: You mean in terms of the, in terms of the value engineering? Yeah, my
understanding—
VITOUSEK:
nderstandingVITOUSEK: Yes,the—
FUKE: Yeah.
VITOUSEK: Go ahead.
FUKE: Yeah, so after the 2017 plan approval was issued, then, you know, they began to look
more aggressively in now coming up with your building plans, because, you know, as you are
aware, that the normal permitting progression, you know, you start from, you know, like the
SMA or the zoning, and then you apply for your plan approval, and you get the plan approval,
then you theoretically now are in the position to prepare your construction plans for your
building permit. So prior to the development of the specific plans for the building permit to see
whether they are going to utilize or not utilize the existing improvements, so on and so forth,
they, in the process of doing the value engineering. And my understanding is that as they were
doing that,then of course like they had some,just overall, like there was some,you know,
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EXHIBIT B
financial issues about whether it was feasible or not feasible, you know,to actually proceed with
any project or not. That's kind of like my general understanding, Commissioner Vitousek.
To answer your other question about the unavailability of the owner himself,itself rather, or the
owner's representative, the owner's representative is watching the whole proceedings online.
And so if there is a need for specific communication within,I'm sure that one of,you know,the
three of, one of us can probably get a hold of the owner,owner's representative. His name is
Larry Oleck. He is currently based in Florida at this point in time. But he is, you know,
definitely engaged in the ongoings of today's proceedings.
VITOUSEK: Okay, awesome, I'd love for him to join, if he is available. So,you know, again,
moving back to the original point about the feasibility study, so we are in a situation where the
developer has designed a project that was then received plan approval in 2017, and then
subsequently they realized that, wow, we can't actually afford what we designed, and that's the
justification given for noncompliance with the timing of the condition. So, again,to me that
indicates that the noncompliance with the timing is not the result of factors that cannot be
foreseen by the developer but rather by the developer designing a structure that they can't afford.
FUKE: Well,I think that if you look at like,just like any residential construction,you know,
you have your home designed and maybe developed by,plans drawn by an architect, and then
you send it out to bid, and like, oops, I can't afford it. So what have you got to do? You've got
to go back and make some adjustments. And I think this is a little bit bigger project, and it's a
similar situation. I, you know, if you just—
VITOUSEK: Right, but it's a project that they've had 20 years to develop and to understand the
idea behind and the fact that, you know, they put forward the plan approval in 2017 when the
development window closes in 2019 doesn't give them a lot of time to make those adjustments
that are needed. So, again, it's, it's the fault of the developer alone; it's not someone acting on
the outside that impacts the developer's ability to design their own project. You know, I think
that's, that's important that we consider moving forward. But I do want to continue—you know,
there has been a lot of discussion about the, you know, litter removal from this structure, but I
want to make it very clear that in my opinion this structure is litter on the entire community, that
this derelict building that has stood here for 15-plus years is detrimental to the overall Kona
community. So,to me,the most important thing that we can do now is finding a way to cure
that, and if this developer is able to cure that within this amount of time, then I would be in
support of that. I have concerns because I don't believe that they have shown the ability to do
that to date.
I also have concerns with the schedule that's being proposed. I think that by waiting to 2000
and, or 2023, to submit for final plan approval, I think you are backloading the schedule and you
are putting yourself in a situation where it will be impossible to complete, because the timing
that's going to take to get plan approval will be months, and then after that the timing to get the
building permit, especially for a structure of this size—the way that things are going now with
the county, a simple home takes about a year to get a building permit. So at that point you put
yourself in a situation where you want to start and finish construction of a 46-unit timeshare in
less than a year,which I personally don't believe is feasible.
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EXHIBIT B
So, to me, if, if we are going to make a meaningful effort to cure this area of the derelict
structure and complete something,we need to have a much stricter timeline whereby plan
approval will be applied for within a year, which I think is reasonable given the commitment in
the letter that the building will be consistent with the 2017 plan approval. So if we can commit,
as a condition, that plan approval will be applied for in one year, and within one year of securing
plan approval, or even less maybe, six months within securing plan approval,building permits
will be submitted for, and then construction will be commenced within one year of receiving the
building permits. And if any one of those conditions is not met, I would recommend that the
permit be revoked; so if you do not apply for final plan approval within one year, the permit is
revoked and over; if within six months of receiving plan approval you do not submit for final
building permit, the permit is revoked and over; if,within one year or less of receiving the
building permit, if you don't commence construction, SMA permit is revoked and over. Is that
something that you guys can commit to on behalf of the developer?
FUKE: I can't, like, Mr. Vitousek, I can't necessarily commit to that,but,you know, from my
perspective, a couple of things, I think. First of all, I kind of indicated that, you know, the letter
that you saw, and it was provided by the attorneys' office,but basically saying that they'll have
the plan approval no later than 2023, but if you listen to what I initially articulated, I would say
that the hope is to secure final plan approval by the end of 2021 or the first quarter of 2022, and
then the building permit to be secured by the end of 2022 but no later than, you know, 2023. I
hear what you are saying, you know,there should be a little bit more specific timetable relative
to the process. You know, I, I would think that that's kind of like reasonable; what needs to be
more specifically addressed, however, if like the timetable between, what you are suggesting
between final plan approval and submittal of a building permit, six months - - -absolutely too,
too short.
VITOUSEK: Okay,what do you feel about a year between final plan approval and submitting
for building permits? I feel as though a year should be plenty of time to get the design together.
FUKE: Well, as far as like, you know, completing the value engineering and coming up with the
plans for plan approval,you know, by the end of next year or the first quarter of 2022, from my
personal observation in dealing with other projects, I would say that that's kind of like
reasonable to ask. If you kind of like roll back theclock now, you know, if you have like the
deadline of December 2025 to have the building completed—and Mr. Newberg knows very well
from the construction standpoint approximately how long,you know,when do you have to
begin—well, begin, and I agree with you,you can't begin in January of 2025 and expect it to be
completed in 12 months thereafter. So probably,you then, you know, roll it back to say,you
know, construction to begin maybe no later than maybe mid-2024. It can begin earlier, but
definitely no later than that. I mean like it's more like how do you break it up within that
five-year window, you know, to provide a realistic milestone, realistic and achievable milestone.
VITOUSEK: And to me, that's why having the developer here is entirely material to the
discussion because they are the ones who are going to be selecting the contractor, selecting the
architect, determining the duration of time for design, and all that. And with respect to you, you
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EXHIBIT B
know, Mr. Fuke, and to the attorneys, you know, you guys are, that's not your area of expertise
with this development.
FUKE: Well, if—
YOSHIMOTO: Can I just look at—sorry, Sid—can I just speak a general comment? You know,
I think—and I mentioned this in the last hearing—everybody wants this thing to get built, right?
I mean that's the goal; we all have the same goal. And I want to be able to do what we need to
do to set up, set the developer up for success. As we've all seen, sometimes there are delays. I
wanted to get this thing through in the beginning of 2019. I couldn't get a hold of SHPD for 11
months and needed to,you know, have Jeff and Jessica help me. That was totally out of our
_control, and that happens, anybody who does development, that happens very consistently. So I
suspect that's why this is backloaded. Because you have to be able to anticipate delays; if we
don't allow for that sort of buffer, we are setting—so then it's revoked, and we have to come
back, and then that building sits here then, I mean,like this a lot likely. It's just the reality.
People hate that excuse, but it's the reality. So I just wanted to offer that. You are right,I'm not
an expert in this, I defer to Sid in terms of timing,but I do think whatever comes out of today
should set this project up for success.
VITOUSEK: And I believe that this project has been given 20 years in which you could have
succeeded, and so in order to move forward it needs to be on an extremely short leash with
conditions met in certain periods of time, and if that can't be done, then once and for all we will
know that this developer cannot do it, and they'll have to get off the pot.
CARR SMITH: So—thank you—is there any reason, Evan,Kim, or Sid,that this gentleman
that's watching online, is there any reason that he can't join us? I think the commissioners
would like to have the developer present. Is that possible? We can take a 15-minute break and
have him join in the call?
FUKE: Kim—I'll defer to Kim.
YOSHIMOTO: I can ask, I mean I know he's do-you know, you know what is with Zoom, you
are monitoring things while doing other things,but I can make that asked. Can we take a break?
CARR SMITH: The Commission has been asking for that for a bit, so maybe we'll take a little
break, you can find out whether that is possible. Would that work?
YOSHIMOTO: Sure.
CARR SMITH: Okay,thank you. It's 10:57. Let's come back in 10 minutes, and then we'll see
where we go from there. Thank you.
(Chair Carr Smith called a recess at 10:57 a.m. She called the hearing back to order at
11:12 a.m.)
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EXHIBIT B
CARR SMITH: All right, I'm going to call the meeting back to order. It's 11:12. All right.
Can the applicant share with us if you've learned anything new about the developer joining us?
FUKE: Sure. I,we had like a, Ms. Yoshimoto and I, had a conversation with Larry Oleck.
Larry Oleck is the senior vice president of development, based in Florida, and he was watching,
you know, like through YouTube the whole operation, and he had to leave because he had an
11 o'clock—well, our time 11 o'clock—commitment. But he said that he was agreeable to
having a specific breakdown in terms of timetable, and he essentially deferred it to us in terms of
like trying to establish what would be those major benchmarks, you know, essentially wanting
to, you know, like make sure that the concerns are properly addressed, especially,you know,
what Commissioner Vitousek mentioned about,you know,the unsightly condition and so on and
so forth. So long story being short, he asked us and said go ahead and you have my blessing to
have the specific construction, you know,permitting window, but—he all just kind of deferred to
us.
So after we hang up, then we talked about the different scenarios, and based on my experience
with permits,I would kind of like recommend a condition along these lines then: that a plan
approval be submitted no later than March 30, 2022, which essentially from this point in time,
give you like one year and a quarter to a window within which to complete your value
engineering and do all of your necessary design—plan approval normally from the time of
submittal,you know,takes you like about at maximum maybe 60 days to get approval then, so if
you assume like March, April, May, you know, to get plan approval,then you get authorization
to start your, you know,with your building permit plans then; then, so then to say that the
building permit shall be submitted no later than June 30, 2023; and the starting of construction to
begin no later than June 30, 2024. So, essentially, you know, if you look at that window,then
that gives you like a one-year window from the time the building permit is applied for and
hopefully secured, but I would think that it would be kind of like an earlier period than that, but
this is kind of like a no-later-than, so it becomes very clear in terms of the enforcement capability
whether you have or have not submitted. So, you know, given that kind of like construction
timetable window, Mr. Oleck said just go ahead, and he'll accept a condition along these lines.
Now, he knows that, obviously,you already have a condition that the project has to be completed
by, you know, like the approval of this SMA extension, so, which if, the day would be like
December 18th, or 16t, of 2025;that's the deadline construction window.
CARR SMITH: Thank you, Sid. Mike, did you want to respond to the adjusted times?
VITOUSEK: Sure. Just so that I understand it,we are looking at March 2020 being the deadline
for resubmitting the plan approval?
FUKE: March 2022.
VITOUSEK: 2022, sorry, yes, yeah, March 2020 is over and gone. So, March 2022,that seems
like a long time given that they've already stated that they are going to be going with the similar
plan approval as what's been presented in 2017.
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EXHIBIT B
FUKE: The only thing, you know, to which I would say that,you know,they haven't really like
incorporated the value engineering aspect into the design, so,you know,they kind of like worked
a little bit okole backwards, you know, in the sense that they did the design, and then they got
the plan approval, and then they started to do the value engineering to see like whether, you
know, it becomes,you know, like workable, and that's when their hands were thrown up and
said no it's not workable. So this is why now they are doing the value engineering and using the
value engineering as a basis to come up with the plan approval.
VITOUSEK: Okay, and so they are thinking that that's going to save them time on the design of
the actual construction plans?
FUKE: I'm just kind of like providing a little bit more leeway, but, you know, if you are very
aggressive,probably it would be—you know, if I were the developer,I would want to kind of
fast-track it, much more than kind of like waiting until the last minute,because if the market—
VITOUSEK:
arketVITOUSEK: Yeah—
FUKE: —and, you know,you have all of the thing out there, you know,you just as soon - --
and build it, because otherwise you just have vacant property;you are paying real property taxes
on it, and that's generating no revenue.
VITOUSEK: Yeah, so basically, with the schedule that you just told us,they are going to be
ready to commence construction in June of 2024. Is that right?
FUKE: Start no later than June 30, 2024, because, again,just working backwards, it's probably
going to be like,you know, like 12 to 18 months construction window.
VITOUSEK: Yeah,yeah, so that's giving them 17 months to complete construction?
FUKE: Yeah.
VITOUSEK: That, I mean, that's going to be really tight with a project of this size. You know,
I feel like if we can condense it on the front end a little bit,that would make me feel a lot better.
The idea being that once that they, once they get substantially moving and going, I think that
there should be a little more leeway, you know, if that's partially completed, I don't see us
pulling the plug on, or wanting to pull the plug on it, making a derelict structure grow to being a
bigger derelict structure. So I would want to have a little more leeway in completion of the
construction and a little less leeway in planning in the amount of time it would take so that if we
can't meet those upfront deadlines, we can finally move forward—
FUKE: Okay—
VITOUSEK: —and I do want to take this opportunity to also discuss alternatives or how we can
move forward in the event that we don't make compliance with any schedules or if we determine
at this meeting that it's been long enough. I want to ask if the county has considered a similar
condemnation proceedings as was done on Honl's Beach Park where there was an existing SMA
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EXHIBIT B
that dragged out too long and had tremendous community opposition, and the county ended up
condemning that, acquiring that, for use. There is currently not a good parking situation for
Honl's Beach Park, and this seems like it would be an ideal location to serve Honl's Beach Park,
as well as the Kailua Village area. So I just want to see if there has been any analysis or
discussions about the county condemning this property for public use.
CARR SMITH: Jeff, if you would like to chime in, go ahead.
DARROW: Thank you, Chair Carr Smith. Aloha, Chairman and members of the Planning
Commission. In response to Commissioner Vitousek's question, I am not aware of any,you
know, action or even consideration of this particular property being,you know, thought of as
being used for a parking lot or for a condemnation action. Normally,when the county addresses
or looks at a condemnation,there is usually a nexus of a public use that it's benefitting, and a
majority of times that use may already be in effect, such as an existing public access that has
been closed by a private owner, or if there is a particular segment of a roadway that the county is
looking at it that it needs for connectivity and it's been identified in long range plans and there is
a particular property that it needs to be able to fulfill that connection, they'll consider a
condemnation action. In this particular case, this would be very difficult because there is quite a
large existing structure there that would have to first be removed,which would cost quite an
exorbitant amount of money, and then to be able to improve the lot as a parking lot,I would, I
wouldn't say that it's impossible, but I would say that it would be highly unlikely that they
would consider that, especially, having to go through a condemnation action when the applicant
is ready to proceed with constructing this particular project.
VITOUSEK: Right, and the question is just about planning for contingencies in case the
applicant continues to be unable to carry out the commitments. And it's been identified by the
surrounding neighbors as a health and safety issue, which is a nexus for a condemnation, and a
similar situation has occurred less than a couple hundred yards away with the Honl's. So, for
me, again, ideally, ideal world, this developer is able to pull it together and complete this project
in the amount of time that we will allot them to do. If they can't,which they've given us every
indication that they can't, I think we need to be ready with an alternative so that we are not stuck
with this derelict structure for another 20 years. And that's why I recommend that the county
would consider this; I'm not recommending that they move forward with it in any way at all, but
just that it be considered as an alternative going forward.
CARR SMITH: Thank you,Mike. Jeff, go ahead.
DARROW: Thank you, Chairman Carr Smith. So what we can do is make contact with the
Department of Public Works, as well as the Department of Parks and Recreation,because this
would involve both of actions through their department. There—I do recall the Sobay case and
the whole action there—whenever that does occur,there is, it's not as if the county gets this for
free; they do have to pay for that. And, again, this comes with quite a large existing structure
that may or may not be used in the use of a parking lot. But we will reach out to them and get
their thoughts on that. Thank you.
CARR SMITH: Thank you. Go ahead, Sid.
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EXHIBIT,B
FUKE: - - -
CARR SMITH: Can't hear you, Sid.
FUKE: Okay, I'm sorry—
CARR SMITH: There you go.
FUKE: —muted. Yeah, in response to Commissioner Vitousek's question,I think two things.
One is like, you know, on the straight condemnation issue, it doesn't preclude like the public or
whoever, government agency, you know, to make a request of the public access open, you know,
the PASH, open space access commission, and see if this can be on their list. And,you know,
that's, that's a long process. And if at some point in time whether wherever the developer is,you
know, relative to its development plans, if the Commission decides that this property should be
acquired for the public good, for open space, whatever have you,then they'll go ahead and, you
know, do the appropriate condemnation process and eventually acquire the property.
The other point about like in terms of your timetable, as you were speaking, then I kind of like
adjusted the dates; I think that, and especially since Mr. Oleck has given us the liberty to make
any internal adjustments, we feel like that that's reasonable. And I think what—now hearing
your comment—I think what could be reasonable would be to have like plan approval no later
than January 30, 2022, as opposed to March, and building permits submitted no later than
January 30, 2023, as opposed to June, and so if you assume like a one-year review approval
process of the building permit in 2023, then you can start construction no later than January 30,
2024, essentially giving you almost like two years for the construction period.
CARR SMITH: Sounds good. Thank you, Sid, thanks for that clarification. Barbara, go ahead.
DEFRANCO: Anyway, I thank you,Mike, Mr. Vitousek, for all of your input. I agree with you,
and I agree with Sid,that we have to find something that is actually achievable. And when I read
the timeline,I didn't think the timeline that they offered us was real. So I like that we are
adjusting this timeline so that we can make this project work. Thank you.
CARR SMITH: Thank you,Barbara. Go ahead,Mark.
VAN PERNIS: Can you hear me?
CARR SMITH: Yes.
VAN PERNIS: Mr. Fuke, is the developer willing to commit to immediate building of an
inexpensive temporary asphalt sidewalk on Kahakai and Ali`i to alleviate the increased
pedestrian traffic there?
FUKE: As I mentioned earlier like,you know, I, again, it's unfortunate Mr. Oleck is not here,
but, you know,I'm not at liberty or neither is, I think, Ms. Yoshimoto or Mr. Oue can make that
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EXHIBIT B
commitment on behalf of Mr. Oleck, you know, the developer. He has that condition,you know,
condition number 4, specifically calling for improvements to both Kahakai and Ali`i Drive, curb,
gutter, sidewalk,you know, the whole nine yards. Whether you want to make,you know, have
that prematurely constructed, I would recommend no, largely because as you do the construction,
then, you know, you are going to destroy all whatever you constructed previously. So, that's,
that would be my recommendation to the developer.
VAN PERNIS: Mr. Fuke, I'm talking about a temporary inexpensive asphalt sidewalk, not
condition number 4.
FUKE: On Kahakai or Ali`i Drive?
VAN PERNIS: Both.
CARR SMITH: You mean as it surrounds the property perimeter. Is that what you are talking
about, Mark? And—
VAN PERNIS: Yes.
CARR SMITH: —you are talking about between now and when they start construction,that
would be the benefit?
VAN PERNIS: Immediately is when I would want that done.
FUKE: I guess my question then is what is the,what is the purpose behind—
VAN PERNIS: Can you answer my question first?
CARR SMITH: Well, he—Mark, let him speak.
FUKE: I think I mentioned earlier that I cannot make that commitment,you know, because, you
know, we are not authorized to do that. I mentioned also that if that were like a request, then it's
something that I would probably not recommend,you know,that the owner accept. Now,
alternatively, I've asked, what I wanted to find out was, you know, and maybe the owner might
consider, but the question is the nature of the request; why is that request being made? Is there a
lot of foot traffic in that area that's being created by the project, or the existing condition that the
developer has created, create this kind of safety hazard?
CARR SMITH: Mark,would you like to respond?
VAN PERNIS: (Inaudible—muted)
CARR SMITH: You are muted.
VAN PERNIS: Can you hear me now?
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EXHIBIT B
CARR SMITH: Yes.
VAN PERNIS: In response to your question, let me say that the developer has done nothing for
the public for 23 years, and now asked for another five years. The public walks in front of this
project both tourists walking in the town and locals walking out to the beach. And it's a liability
issue for the county because there is no safe walkway there. They can't walk on the other side of
the road because of the existing walls and lack of setbacks. So this is a small contribution to the
public while the developer has done nothing for 23 years. And I think you'd know that, if you
didn't live in Hilo or were familiar with Kailua-Kona. And I note that the developer has not
produced a single person or entity to testify in favor of this project while there is lots and lots of
public testimony universally against it. So my—to answer your question,yes, there is a problem
there, and that's why condition 4 was included. And I'm just asking for a temporary inexpensive
asphalt driveway [sic] that can easily be destroyed once construction starts. And—
FUKE: Okay, I, Commissioner Van Perris, I think I have better understanding. I would like to
only like suggest that,you know, we are already proposing a condition that the developer submit
a site maintenance program to address like the homelessness, the litter,the graffiti, so on and so
forth, and if it ties in, like, if the need to get like a good maintenance program, I mean the
security and otherwise, if that program calls for like making that interim improvements,then so
be it. It's something that has got to be reviewed by the owner and eventually vetted and accepted
by the county.
CARR SMITH: Thank you, Sid—
VAN PERNIS: So the answer is,no,you are not willing to commit now.
CARR SMITH: That's—
FUKE: Yeah, I cannot make the commitment on,now, on the other hand if that is like,you
know, if the condition that we are proposing about the applicant coming forth with a site
maintenance program to address the homelessness, security, so on and so forth, if one of the
mitigations that they accepted, or that's required by the county Planning Department in its
review of the applicant's site maintenance program calls for like interim improvements, then that
is the thing that they have to do.
VAN PERNIS: You are asking this Planning Commission for certain things right now,but you
are not willing to commit to give the public any benefit right now. Is that right?
FUKE: All I'm saying is that, you know, like neither Ms. Yoshimoto nor myself can make that
commitment for the owner as far as making that interim sidewalk improvement. We are not
saying, however, that that cannot be part and parcel of the eventual site maintenance program
that gets reviewed and vetted by the county Planning Department.
VAN PERNIS: I'm talking about separate from the maintenance program. So let me ask—
PUKE: Well, because it's tied in-the maintenance program is tied into security and safety.
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EXHIBIT B
VAN PERNIS: Well,the homelessness problem is not going away; it's not going away at this
location, and it's an expense on the county and that's a taxpayers - - -. Let me ask you,what in
23 years has the developer or its predecessor done for the public of Kona other than create a
useless concrete monstrosity,which defalcates a value of Kailua-Kona?
CARR SMITH: Okay,thank you, Mark. Not very productive,but let's move forward. I wanted
to ask the applicant. Is there any reason why you cannot provide the site maintenance plan with
the security and the contact within 30 days? I mean,why does it take 90 days to provide that to
the Planning Department?
FUKE: Just giving the applicant maximum time to prepare, like even the holidays. But on the
other hand it's a concept. If the Commission—like, you know, earlier,you know, relating to the
discussion as far as a specific construction timetable, if that has to be adjusted,then, you know, I
kind of like came back and then made some suggested changes to the construction timetable—if
the Commission wants to, you know, decrease the amount of time required to submit the
maintenance program from 60, I mean from 90 to 60 or 90 to 30 days, then, if that's the term,
then that's the term.
CARR SMITH: Okay,thank you. Max, did you have something?
NEWBERG: Thank you, Madam Chair. I just wanted to clarify for the record my earlier
request to the owner's representatives, Ms. Yoshimoto mentioned union labor, it was not at all
my request. I just wanted to note again,want to clean the record that neither was that stated nor
my request, and also implore to the attorneys, Sid Fuke, and also the owner of Diamond Resorts
that—we realize these are difficult times for hoteliers, resorts, and also our community here.
While all areas, all countries have been decimated by this pandemic, our workers aren't able
and when I say "our,"I mean the residents here of the State of Hawai`i—aren't able to travel
anywhere to work. And I would just implore a resort and hotelier of the nature and magnitude of
Diamond Resorts to consider that; that when we look at all these projects, we truly want it to fit
within our community. And the reason that I make that request of international resort,which
seems to have properties on every continent, also a cruise service, membership, and they are well
healed, that we are dealing with someone coming into our community,we are hopeful that you
are committed to building this site, and for that reason we wanted to move forward. But to
clearly state that you cannot commit to using workers within the State of Hawai`i is troublesome.
And it's also troublesome to not be able to have Larry Oleck here. It's also troublesome to keep
hearing, "I cannot commit to that, and we'll have to speak with the owners." So I just wanted to
clear the record and make that statement. Thank you.
CARR SMITH: Thank you for that, Max. Go ahead, Kim.
YOSHIMOTO: Thank you. Thank you, Commissioner, for those comments. I appreciate them.
To be clear, I wasn't saying we can't commit to local workers. I think that is the full intention.
It was just that,you know, we can't commit right now to use union labor as part of the
conversation, so I guess I thought that perhaps that was the request. I'd like to say that we do use
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EXHIBIT B
local workers and union labor on other—well, Diamond does anyway—on other projects on
Oahu and elsewhere. So, but thank you for your comments.
NEWBERG: Thank you for that, Mrs. Yoshimoto. And to be clear, I would never request that
union labor be used. Thank you.
CARR SMITH: All right. Perry, did you have any questions?
KEALOHA: No, I think I have comments on—
CARR SMITH: Yeah—
KEALOHA: —testimony.
CARR SMITH: —sure, go for it.
KEALOHA: You know, so I share the same theme with everyone else, you know, 20 years is a
long time. And this is a reoccurring theme; it's not just this developer, but it's, it seems to be
everyone that comes before us for over the last few years, it's all properties that have been
acquired or, and sat for 20 years, 30 years, and now they are coming in for extensions. I feel the
most important thing is if we can add some language that if it's not completed in this next
five-year extension, that no further extensions would be granted, so just make it clear that it's
either, you know, get it done or get out. You know, a lot changes. Twenty-five years is a life,
you know, is a generation, and we just can't keep extending; there's too much changes over that
period of time. And I think the best way to resolve the community issues with homelessness—
you know, homelessness is not a property issue, it's a community issue, but this being the
weakest link at the time, getting this project moving forward is the best way to resolve it from
the area.
CARR SMITH: Is that everything, Perry? (No audible response) okay, thank you for your
comments. Go ahead,Kim.
YOSHIMOTO: Thank you, Commissioner Kealoha. I think that's totally reasonable, and we
would be amenable to it.
CARR SMITH: Mike, go ahead.
VITOUSEK: I just want to say that I agree with Commissioner Kealoha, and that, again,I don't
think that our condition should be specific to the five-year completion; I think that it should be to
each phase of completion where if they don't make the first phase, it's done, and we are moving
forward already; if they don't make, if they don't make application for building permits,that it's
done and it's over. The one caveat that I would have on where an extension could be allowed is
after substantial completion of the project; if they are over 50 percent or something completed on
the project by the deadline,I think they should come back for the opportunity to have an
extension to finish construction of the project and not leave a partially constructed project. So, to
me, that is the only time where I think the possibility of extending beyond the five years is
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EXHIBIT B
reasonable, is after substantial completion where they need time to finish construction. Do you
agree with that, Commissioner Kealoha?
KEALOHA: Again, I agree with the spirit of the request. I'm less concerned about the details as
intention—
VITOUSEK: Yeah.
KEALOHA: —like we've seen too many people come before us, kind of just sat on
(indiscernible–noise)the other hand, if this doesn't go through,that eyesore is going to remain
indefinitely and the issues around that at the property will remain indefinitely. So I hear a lot of
comments about let's just end this now,while there is-no fix; this is going to stay, you know,the
current state will be the state for the conceivable future.
VITOUSEK: Right, and which is why I believe that the county needs to look into the alternative
of condemnation - --health and safety concerns for public—
HALL: Excuse me—
VITOUSEK: - -- as the alternative—
HALL: —Malia Hall. If we are going to move into discussion, I think we need a motion,
please. Thank you.
CARR SMITH: Thanks, Malia.
KEALOHA: That's what I was waiting on,thank you.
CARR SMITH: Okay. All right. Mr. Van Pernis.
VAN PERNIS: Question of the attorneys. What standing does the applicant have? Can't even
go forward if the applicant does not exist legally, as public testifiers have indicated. What can
you tell us about that?
YOSHIMOTO: I don't think that the testifier said that the applicant doesn't exist legally. There
is no way that this company could have acquired the property, if they didn't exist legally. He
was referencing something in Nevada, which I don't have any information on(indiscernible–
noise)news to me—
VAN PERNIS: The testifier said that the LLC, which is the applicant, was dissolved and doesn't
exist as of 2011; therefore, legally we can't act on the application in any manner. Do you agree
to defer this matter until we find out whether the applicant exists or has any standing? Because
the only evidence we have,the only evidence is that it was dissolved in 2011.
CARR SMITH: Okay,Mark, thank you. The county has accepted this application that's before
us. We are the county Planning Commission, and we are going to act on this agenda item.
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EXHIBIT B
So, it's my understanding that we have six conditions before us now,we want to add the whole
time frame for approvals and construction, we want to add the site maintenance plan, and what
else? So I need to be clear. Mike, since you took the lead on that, the time frames—Sid had
offered up a revision—can you respond what you think it should be? Go ahead, Mike.
VITOUSEK: If it's okay with the Chair,I'll make a motion.
CARR SMITH: Okay.
VITOUSEK: Okay, so, before making a motion I just want to state that I have definitely heard
and considered the concerns of the members of theublic who testified todayand in writing. I
p
agree with them that it's been too long,that the structure is an issue in the community. I
personally believe that the fastest way for us to move forward with curing this issue is for the.
current owner to develop it in compliance with the existing conditions; I think that's what's
going to solve the problem fastest.
So for that reason, I'll be making a motion to grant the applicant's request for a time extension,
as recommended by the director, with the following conditions in addition to the conditions
already imposed: Number 1 is a site maintenance and security program to include an analysis of
the construction of temporary sidewalks, you know, with, to be submitted to the county within 45
days for review and acceptance and, you know, any other, or the language that Sid would like to
include in there from the previous motion that I left out can be added in discussion; number 2,
that the project follow a timeline where plan approval will be by January of 2022,by the end of
January 2022, the building permits will be submitted by the end of January 2023, and the
construction will commence prior to, or commence after January 2024,prior to—excuse me—
will commence prior to January 2024—
CARR SMITH: On or before—
VITOSUEK: —if any of these conditions are not met, the permit will be rescinded. If—and
then, so, following, the completion of the project will be December of 2025. Now, the only
opportunity—I think it should be included—the only opportunity for time extension would be for
after the project has been commenced and construction is—what will we say, 50 percent
completed? And then, if in a case that construction is commenced and 50 percent completed,
then the project can apply for an additional time extension after that, but they'd have to come
back to the Planning Commission to explain.
CARR SMITH: All right, there's, that's a motion.
VITOUSEK: So, again, you know, my words may not be the exact condition applied into the
regulation. I hope that they can be summarized a little better than I can do off the top of my head
when they have the time, but if the intent of that can be captured as a condition,then I would
support moving forward with Diamond Resorts International completing the project as requested.
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EXHIBIT B
CARR SMITH: Thank you. Is there a second? Would any commissioner like to make a second
for that motion?
VAN PERNIS: I'd like to make a comment.
CARR SMITH: Okay,Mr. Van Pernis has the second. All right—
VAN
ightVAN PERNIS: No, I did not second it. I said I'd like to make a comment.
CARR SMITH: Okay,well,I'm looking for a second, so I'm not looking for comments at this
point. Max?
NEWBERG: I'd like to second that. Thank you, Madam Chair.
CARR SMITH: Thank you very much, appreciate that. All right, any additional discussion to
refine any of this?
FUKE: Madam Chair?
CARR SMITH: Yes, Sid, go ahead.
FUKE: I,you know, as Commissioner Vitousek was talking, and even prior to that, I kind of got
as far as like what the intentions were, what his intent was, and I'd like to just provide a
language,you know, along those lines,not so much as it relates to the site maintenance program
but the schedule. So if you look at condition 2, condition 2 says that"Construction of the
proposed development shall be completed within 5 years from the effective date of this third
amendment." Then if you can just kind of like continue to say that in accordance with,you
know, "shall be completed within five years from the effective date of this third amendment,"
and now the new portion would be, "in accordance with the following schedule: Plan approval
submitted no later than January 30, 2022; building permits submitted no later than January 30,
2023; begin construction no later than January 30, 2024," and then period, "Failure to comply
with this timetable shall result in the automatic nullity of this permit, except that if the project is
substantially constructed but not completed, it may be extended by the Leeward Planning
Commission." I would suggest leaving substantial to the discretion of the Commission, rather
than 50 percent or any remark, because it's kind of hard to determine. But if you can see, you
know, any reasonable person would say like,yeah,you know,you are pretty much done already,
you know, so rather than saying 50 percent or whatever, you know,because they can say like,
well, you never finished inside, and all that,you know, so you don't want to get involved in that,
so leave it to the discretion of the Commission.
VITOUSEK: I just say that I believe that captures the intent, so I'm okay with that.
CARR SMITH: Sid, what's your definition of substantially completed? Just generally speaking.
FUKE: I mean, if you see the construction workers all out there and, you know, you have the
framing and, you know, all of the walls and everything else, like, all done, and maybe the only
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EXHIBIT B
thing that remains would be essentially like having all of the interiors kind of completed, you
know, the furnishing and, you know, the soft things, I think like—you know, it's like when you
build a house; when you build a house, you have the house all kind of like completed, I mean,
you know, like the basic frame and all the things in,but it'll take you a long time to put in the
cabinets and all that stuff, sometimes half as long as like the whatever you've got. So I think use
those kind of like, you know, like lenses to determine substantial.
CARR SMITH: Yeah, very good, thank you---
ANDREWS: Can I chime in?
CARR SMITH: Jessica, sure.
ANDREWS: I don't know if you want it to be, if you want to consider in the assessment of
substantial completion tying it to inspections, construction inspections, that are done through the
course of the construction process; there is framing inspection, there is foundation inspection. So
I don't know if that would be anything—
CARR
nythinbCARR SMITH: Did you have a suggestion?
ANDREWS: I mean, foundation inspection is—well, that's been done actually—so maybe
framing or—frame inspection would be one step to tie it to.
CARR SMITH: That's not substantial enough in my opinion.
ANDREWS: Yeah, yeah, that—I mean there is certainly,between there is framing inspection,
framing inspection and final inspection, there is actually series of, you know, electrical,
plumbing inspections, so.
CARR SMITH: Okay, all right, so what Sid has recommended is that we add that language to
item number 2, condition number 2, correct?
VITOUSEK: Yeah, and I think that the point about having framing inspection be the cutoff for
that 2025 date is reasonable—
CARR SMITH: Really?
VITOUSEK: —I think the developer can get behind that, and I think that's reasonable and
definitive where after framing inspection, if they still have more finish work to do, and perhaps
they can have a time extension to do that, but without framing that will hold them to it—
although, you know,we do want to be careful and not make a big problem into a bigger problem.
But I think, you know, I don't know, I'm inclined to leave it to the discretion of the Commission
and indicate that,you know, substantial completion, and if they can look at it, and if the
developer can come in and convince the Commission that they are doing what they said they
were going to do and its definitive proof that there's people working on the project, to me that
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EXHIBIT B
would be good enough, that they are working to finishing it. So I think perhaps leaving it as
substantial completion should be good enough, as Mr. Fuke suggested.
CARR SMITH: I'm fine with substantial; I was just wondering, I was curious as to what his
idea, what that meant. Mr. Van Pernis.
VAN PERNIS: Two things. First, substantial completion legally could mean it's already got
substantial completion because the foundation is in. We need to have specific language,not the
word"substantial completion"because that allows the developer,Mr. Fuke, or whoever speaks
at the next Planning Commission meeting to say there is substantial completion. I would say we
need to be specific; the roof has to be on, and the framing has to be done. Can you imagine a
framing without a roof abandoned at that time? That's the first issue.
The second issue is, with all due respect to the chairman, the submission of the application by a
non-existent entity invites litigation to cancel this permit either by Kona Reef or someone else.
And I think that it's incumbent upon the applicant to prove they exist. Let me give you an
analogy: Let's say an individual files an application before the expiration, and then he dies,the
application becomes moot. And the fact that the Planning Department accepted this—well,
"accepted" is a strange word,but—accepted this application but, as was testified today, did not
look into at all the issue—
CARR SMITH: Okay,Mark,I feel like we are being repetitive here;we've already talked about
this, and we've moved past this—
VAN PERNIS: Well,we haven't—
CARR SMITH: —so we are working on the—
VAN PERNIS: —I think that—
CARR SMITH: Mark—
VAN PERNIS: —the applicant—
CARR
pplicantCARR SMITH: Mark—
VAN PERNIS: —this application is—
CARR SMITH: Noriko, can you mute him,please? Thank you. Malia, go ahead.
HALL: Sorry,just for clarification,we are using two different terms right now. Are we talking
about substantial commencement or const—because that's different from substantial
completion—so I just want to make sure you guys at least get that wording right in your, the
intention of your condition.
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EXHIBIT B
And also, to the testifier, the word was that the,they weren't active;they weren't,they didn't use
the word, "dissolve." So if you all have questions about whether the,what they were testifying
to, the word was they weren't listed as active at the time,but there was no discussion of the
corporation being dissolved.
VAN PERNIS: At the time- - -
CARR SMITH: - - - clarification. Mike, go ahead.
VITOUSEK: And I believe that the application lists DPM Acquisition dba Diamond Resorts
International. There is plenty of information on the interweb about Diamond Resorts
International being an active developer, so I don't,I'm not a corporate lawyer, I don't know that,
but if they are doing business by Diamond Resorts International covers the---LLC that doesn't
have their annual filing completed,I think that should pretty much justify their---project, and I
think that we can move forward.
Going back to the completion issue, commencement is—I don't want to talk to commencement.
I don't want to have to have the start of commencement be the end. I think we have to figure out
language that everybody is comfortable with, including the developer, saying that the project is
moving forward to a point where we all agree that it will be completed, and whether, if that
language is too vague and if we need to -- -with framing inspection,that is what I think we need
to figure out right now. I don't know, is it possible to poll on who would prefer to have it be
substantial completion and who would rather have it as framing inspection?
CARR SMITH: Yeah, who, okay, so, Commissioners, which of you likes substantial completion
versus, substantial completion versus a specific time frame? I'm kind of like this.
VITOUSEK: Is there a recommendation from our attorney on which would be a better term to
use?
CARR SMITH: Malia?
HALL: Sid, could you please read the last part? Because you basically said that it was
substantial commencement, the last part, substantial commencement with—
FUKE: Yeah—
CARR SMITH: Go ahead, Sid.
FUKE: Sure, okay. So it would be, "except that if the project is substantially constructed but
not completed, it may be extended by the LPC [Leeward Planning Commission]." The reason
why I kind of like prefer the substantial approachment is that, you know, you already have on the
record, based on today, like how do you,you know, like intuitively define"substantial,"you
know. So if there is any question by, you know, like the commissioners back in,you know, in
2025, for example, when this comes up for the Planning staff to determine what is substantial or
not, I mean I would go back to the record to see like what was the intent. And I think the basic
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EXHIBIT B
intent is that you at a stage where there's a point of no return where it's just not going to,you
know, I just cannot finish it by December of 2025,but you know that it's going to be completed
eminently. So I think it's like how do you, how do you codify commonsense?
VITOUSEK: Yep.
FUKE: I mean, you know, and so I would just say leave it as substantial and go back to the
record.
VITOUSEK: And it's, it's substantial construction is the language, instead of substantial
completion versus commencement. And I'm okay with that language.
CARR SMITH: Are you okay with that language,Malia?
HALL: Yeah, that's actually what I was trying to capture was—because, you know,when you
say completion, that means a project is done, you know what I mean, it's the sequence issue,
stuff like that. So I think that's the part where I was just getting a little confused in whole,but I
think substantial construction actually the better,the better of the two terms,yeah.
CARR SMITH: Okay,very good. Commissioners, are we good? Substantial construction? (No
audible response) okay. All right, good, so that's being added to condition number 2, along with
the recent language. Is that right? So, Mike, on your motion, we were having the time frame for
the site maintenance was an additional condition, is that right?
VITOUSEK: Yes,that was, that would be the condition 3 that was presented, but it would be—
instead if you want to take a stab at rewording my effort into,you know, capturing the intent of
what being offered, we are shortening to 45 days and allowing for a consideration of the
sidewalk as requested by Commissioner Van Pernis into the plan that would be submitted to the
county.
FUKE: Madam Chair?
CARR SMITH: Yes, Sid, I'm sorry—
FUKE: I'm kind of like trying to work on that—
CARR SMITH: —waiting for you, Sid—
FUKE: —perhaps like maybe you can answer, I mean, Commissioner Van Pernis has
something, comments to make, so.
CARR SMITH: Okay,while you do that, sure.
FUKE: Yeah.
CARR SMITH: Mr. Van Pernis, do you have a question?
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EXHIBIT B
VAN PERNIS: Why not include the roof, along with the framing?
CARR SMITH: We are not being specific to anything.
VAN PERNIS: Wasn't I,I didn't see any vote taken on the language. I would like to see a roof,
as well as framing.
And Mr. Vitousek,with all due respect, is not correct that the applicant is Diamond Resorts;
that's a trading, the name only. The applicant is DPM Acquisition LLC -- - doing business as
merely trading. I think that if we are gong to go forward with this, we need to have a condition
that the Planning Department, or the planning director, will determine whether or not the
applicant exists (indiscernible—noise)before the—
CARR SMITH: Kim, can you mute,please?
VAN PERNIS: —before the, this vote is effective—
CARR SMITH: Okay, all right, Mark, we—
VAN PERNIS: —both the lawyer and the county don't know. And whether they were existing
at the time of initial filing is not important;the question is do they exist now when we are to
vote—
CARR SMTIH: Okay,I think the question has been asked, and the answer was already given, so
we are not going to talk about—
VAN PERNIS: -- -
CARR SMITH: Mike.
VITOUSEK: Well, I mean,to me I don't think it's harmful to include a condition that the
applicant verify that their business is in good standing, or with- - -Hawai`i we have business
registration requirements, annual business registration requirements—I don't know if that's a
stan- a normal thing or what, but if that's a condition that's being proposed by Commissioner
Van Pernis that the business be required to be in good standing, then that's not a, not a harmful
thing to include in there as a condition.
CARR SMITH: Jeff Darrow, are you available?
KERN: I'm here, Madam Chair, Zendo.
CARR SMITH: Okay, go ahead, Zendo. •
KERN: So typically, you know,the planning,property taxes are paid, we get a tax clearance
certificate,which shows that they are-
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DARROW: Aloha.
KERN: Hi Jeff.
CARR SMITH: Hold on.
KERN: I would caution us to do that,because what I'm seeing here is a hearsay from a testifier
that hasn't been substantiated that would then be moving into a condition;that would put us in a
pretty funky place. Besides that, I think, very reputable—you know, Sidney, attorneys—it would
be pretty poor business practice for the landowner to, to have an issue with their entity. If they
do that, that will be on them. So I would caution us on that side of it. We do look at it on our
end, and they provide the officers' records, etcetera. Jeff, you can fill in any more on that?
CARR SMITH: Thank you, Zendo. Go ahead, Jeff.
DARROW: I agree that I don't think this is an area that the Planning Department should be
getting into and monitoring.
CARR SMITH: Nor should the Commission.
DARROW: Correct.
CARR SMITH: Thank you.
VAN PERNIS: What—
CARR
hatCARR SMITH: We are not going to talk about it anymore, Mark. Go ahead, Max.
NEWBERG: Thank you, Madam—
VAN PERNIS: I've been cut off—
NEWBERG: I don't know if— -
CARR SMITH: Mark—
NEWBERG: —Barbara was ahead of me or not—
VAN PERNIS: —Mr. Kern—
CARR SMITH: It's okay—
VAN PERNIS: —is not correct—
CARR SMITH: —Noriko, can you mute him,please? Thank you. Go ahead, Max.
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NEWBERG: Thank you, Madam Chair. I'm not sure if I was ahead of Barbara or not. I just
wanted to add clarity. I know we are trying to make a clean proposed motion here, and I know in
discussion it was mentioned that this would be the last SMA approval on this property, but I'm
not sure if it was included in the motion by Mr. Vitousek. I just want to add that if there was
clarity on that.
CARR SMITH: Okay, good.
NEWBERG: Yeah.
FUKE: Yeah, if I can add to that, Commissioner. You know, like it would read, "Failure to
comply with this timetable shall result in the automatic nullity of this permit." That means if you
- -- action, if you don't meet the timetable, you are out. The only exception is if you are kind of
like close to finishing, then, you know, you are substantial-you know, substantially constructed
but not completed,then you still need to have an extension by the.Planning Commission. And
substantial would be pretty much as generally defined by like this dialogue today.
CARR SMITH: Thank you very much. Barbara?
NEWBERG: Thank you.
DEFRANCO: Hi,yeah, my questionis along those lines, too,just to be clear. So let's say that
we go along, and they haven't met the timeline, so if it becomes nullified—I'm going back to
some of Mike's, Mr. Vitousek's comments—so it's nullified, and then there is this big cement
slab there. Are they responsible to remove anything that they've done, if it doesn't happen?
What, what is,what happens then? Is there a way to tie that to—their non-completion is the
responsibility of giving it back to the county in some usable forms? That's my question.
CARR SMITH: Thank you, Barbara. Who wants to answer that? Go ahead, Sid.
FUKE: I would, yeah, I would think that, you know, if they haven't really started and, for
example, they fail to submit plans for plan approval by whatever the date was, you know, like if
they fail to submit plans, you know, for plan approval, then the permit, if it gets approved today,
is automatically nullified. And then there's really like no incentive for the developer to do
anything but just leave the property as it is. So if—I would think that ideally,you would hope,
right,the developer has the wherewithal and the desire to complete the project within the
schedule. And having it completed within the schedule would mean like a lot of the issues that
were raised today would actually go away. If any of the permits get nullified,then there is really
like no incentive for the developer to do anything other than just leaving it as-it is. The
alternative option I think is what Commissioner Vitousek raised about like perhaps the
government should condemn and buy it. Then I would recommend under that basis that there is
a strong tension for wanting to have this property become public, then use the,you know, PASH
route, public access open space, and petition the county and the commission to put this on the list
of possible acquisition. So even if the project is like midway through it, and then the
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commission, you know, decides to put it on their acquisition list, and the Council, County
Council agrees to acquire the property, then the property gets acquired.
CARR SMITH: So the concern is if they do not substantially construct and they end up walking
away from the property, who is responsible for the mess?, So, does anyone want to weigh in on
maybe their experience maybe ever had that happen before where you had to add a condition that
made them responsible for taking the property -- -? Go ahead,Jeff. Jeff, go ahead, thanks.
DARROW: Can you folks hear me?
CARR SMITH: Yeah.
DARROW: 'Yeah? The only similar situation that I recall that can be applied is that there be
some sort of violation issued, and there is a time frame that's given to clean up a particular
situation; if they don't comply within a timely manner, fines begin accruing, and then it's
actually deferred to our Corporation Counsel who then takes it to court, and the end result is
there could be a possible lien on the property until that's resolved, then there could be a
judgment from a judge where they order that the property be cleaned up, and as part of that,
again, the money goes, it's put, a lien is put on the property, and that's part of the,when that
property is sold or changed ownership, that's resolved through that process. But it can be a long,
drawn-out, difficult process.
CARR SMITH: Go ahead, Barbara. Thanks, Jeff.
DEFRANCO: So, so there is no time where at this point when we are,you know, making this
motion and these concessions that we tie it to it,that if they didn't meet their benchmarks,they
would be responsible to clean up their mess? No? You don't ever do that? It's a question. I
don't know.
CARR SMITH: Go ahead, Jeff.
DARROW: (Inaudible–muted)
CARR SMITH: You are muted,Jeff. Jeff,you are muted.
DARROW: Thank you. The one permit that we normally do have a kind of a cleanup condition
is in our quarry permits, and in that is that when the quarry operations are done,they have to
submit a plan of how they are going to—it's kind of like a plan that they restore the land into a
somewhat safe type of resolution—they have to clean up the area, make sure that any areas of
unsafety are taken care of. I mean I don't want to suggest that for this particular application, but
the Planning Commission has utilized those types of conditions in the quarry permits. Other than
that, I don't recall of any type of Planning Commission permit where if it's not constructed in a
particular time,you have to clean it up and tear it down.
CARR SMITH: And just for my recollection, Jeff,this property has not had any violations put
against it, against that what is constructed there sat there all these years? No?
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DARROW: Not to our knowledge.
CARR SMITH: Okay.
DARROW: I mean there may have been complaints to other agencies, but we are not aware of
any for the Planning Department.
CARR SMITH: Okay,thank you. Mike.
DARROW: Thank you.
VITOUSEK: Is—a question for our attorney—is there a legal precedent? Is it legal for us to
request as a condition that if whatever reason the conditional timing isnotmet,the
improvements - -- and any public health and safety requirements be updated at the time?- Is that
legal for us to ask?
HALL: Is it legal for you to ask—I would say that you can ask,but I don't think it's legal for
you guys condition it in the sense that the landowner is, has the right to,you know, do with their
property as they see fit within the confines of the permit, so after the permit is removed, then
your jurisdiction basically is removed, right? So,yeah, I think that you would be going beyond
your jurisdiction to enforce them to do something to the property after the permit is nullified.
VITOUSEK: Okay.
CARR SMITH: Thank you, Malia, makes sense— -
FUKE: Madam Chair, to which I would like to just kind of add to that—
CARR SMITH: Go ahead, Sid.
FUKE: —specifically, like, you know,the situation that Jeff had mentioned,you know, on the
quarry, in that situation the permit has already been exercised; they've used the permit, and so
this is a condition of the permit. Now, in this situation even if you have a condition that they
remediate the property, if they do not utilize the permit, then what is your enforcement ability?
You know, your enforcement ability is only insofar as the developer implementing or utilizing
the permit. So my, my only thought is like, it's like a situation where you might have a neighbor
having like a yard with, you know, full of junks or whatever have you,then, you know, make,
create like a health hazard, then there may be other regulations that govern that to force the
landowner to do the remediation, whether it's removal of the junks or whatever have you. But I
don't think the appropriate tool, you know, especially if the permit has not been exercised, you
know, you can kind of tie it into,to that permit.
CARR SMITH: So perhaps we can trust that other agencies would step in and take care of that.
Go ahead, Barbara.
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DEFRANCO: Yeah, thank you for answering my question. I believe the project is going to
move forward. I'm trying to do that, I'm just trying to understand exactly what we can ask at
this point to make it pono for the whole community that has suffered that for so long.
CARR SMITH: Yeah, thank you, Barbara. So, Sid, you were going to work on that language
for the timeframe. Did you get to that?
FUKE: Yes, I have. So it would read—you know,kind of like a modified version of what I had
first suggested but following up on Commissioner Vitousek's comment—so it would read
something along these lines: "The applicant shall provide a site maintenance program to the
Planning Department within 90 days of,"I mean, "within 45 days of the effective date of this
third amendment to address the site's maintenance and security, which shall include an analysis
of the need for an interim pedestrian walkway fronting the road frontages of the property;
implementation timetable; and contact information of the responsible person or company. This
program shall be in force until physical construction of the project commences."
So, in conjunction with the maintenance program,you know,they probably would need to
address some of the things that have been raised in terms of what are you going to do, like, are
you going to remove the structure now or later on,you know,they are going to have to have
those kind of timetable kind of articulated.
CARR SMITH: So, that didn't include security at all.
FUKE: No, because the overall,the maintenance program is designed to address the site's
maintenance and security.
CARR SMITH: Okay, can—it would be, I would feel better if it said that.
FUKE: Yeah, so it reads, if I,you know, Madam Chair, it will say, like,within 45 days of the
effective date of this third amendment to address the site's maintenance and security, which shall
include an analysis of the roadway frontages, implementation timetable, and the contact
information. At least you'll have the program has to address three items, minimum of three
items.
CARR SMITH: Thank you. Mike.
VITOUSEK: Is it possible to include consultation with the surrounding property owners, not,
you know, formal official capacity, but that there will be consultation with—you know,we had a
lot of testifiers from the Kona Reef—if you can consult with the Kona Reef condominium
association in the development, that would be terrific.
FUKE: I mean, like, I,personally, I think it would be, would be good, you know,because, as
neighbors, you want to be good neighbors, and I think it's good to have that kind of reach-out. I
think if this is going to be a mandated consultation, however,I would suggest like,you know,
given the holidays and all that stuff, rather than 45 days, give them two months, 60 days.
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VITOUSEK: I'm okay with doing 60 days with consultation with the surrounding property
owners and including in the condition that there will be language for consultation.
FUKE: Okay.
•
VITOUSEK: That way,they can be involved in the process, and instead of having to rush to put
together a plan that doesn't serve the needs of the neighbors, the neighbors can be involved in
. creating a collaborative plan that really addresses their needs. It maybe take a little longer but I
think we'll get a better product.
KERN: Madam Chair?
CARR SMITH: Yeah, go ahead.
KERN: Thank you. Because this will be coming to the department to review, is there clarity on
that consultation? Is that—in so many feed, so many people,the notice,there's something in
that regards so we kind of know which direction it's supposed to go as it comes in.
CARR SMITH: It seems like a hard thing to define to me.
KERN: So, reasonable—
VITOUSEK: Yeah, reasonable, yeah, I mean, like I said, I don't want to make it one of those
requirements where everything has to be notified in writing; that's going to take a long, long
time. I want them to make a reasonable and good faith effort to consult with the surrounding
property owners and the department.
KERN: Okay, great. And I feel like through this conversation there is a lot of intent that
everyone is on the same page with, so some of the details may not be totally worked out,but I
feel like the intent is certainly, certainly there. Thank you.
YOSHIMOTO: I would put—
CARR SMITH: Go ahead, Kim.
YOSHIMOTO: Just a quick question on consultation,because we are in COVIP, so obviously it
can't be in person. And I think there are hundreds of owners. So I'm just trying to think
through, how is that going to work? Is it better to put together a written report and submit it to
everybody that we submit,you know,these notices to and ask for written responses? I'm just
trying to think through the logistics, because it's, I mean, it's a lot of people.
CARR SMITH: Yeah,I think so, and I'm sure that you should be required to get response.
VITOUSEK: Yeah, I, again,I think a reasonable and good faith effort to consult. I feel like
consulting directly with the resort association, rather than every individual condominium owner,
and give them the opportunity to build consensus. I think that you make the effort, you know,
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there's a lot of people who have submitted testimony, you know,you can reach out to them via
email, see what their concerns are. Obviously, you don't need to do any in-person meetings, we
don't need to do formal correspondence for the everything,but we have a lot of information on
who are the concerned parties. You can reach out to them directly and build this plan
collaboratively.
CARR SMITH: And perhaps - - - as simple as giving a report, like you said, Kim, an update as
to what's been, what will be agreed to here today and providing them with that information. I
don't know that they are, should be required to ask for consultation from the owners or ask for
input; it's just more like this is what we are going to do. I mean, if you start asking for input
from thousands of people, I'm not sure if that's going to make it very (indiscernible—noise).
Barbara.
DEFRANCO: That was exactly what I was going to say, too. --- COVID, how, how would
you achieve this? And I think you are right; I think it's just telling them what's happening. I
think that's why we have the Commission so that input can come from the community, and we
recognize what it is. But I think that open more discussion might be a frivolous time-consuming
effort, although I always want to give voice to the people. It isn't from that place that I'm
coming and saying this; it's just that we are in a different time right now.
CARR SMITH: Yeah, and like you said, the Commission hearing does provide that opportunity.
FUKE: Madam Chair?
CARR SMITH: Yeah, go ahead, Sid.
FUKE: Yeah, I, I kind of get the gist, and I, and I think that a reasonable way to do it is like
giving the applicant at least some time to prepare a draft, and then that draft of that mitigation
program be sent or email to all of those who had commented, you know, on the application, and
testified, or testified, as well as to the various homeowners' association but not individual condo
owners. And that minimizes the number of,you know, contacts. And then you give them a
certain window in terms of like response time, and we can make adjustments, and then submit
the report to the county, you know,Planning Department for further review, approval. But at
least like, you know, there'll be that kind of iteration, you know, you develop a draft, have them
comment on that, and then you make some modification and then submit that modified version to
the Planning Department.
CARR SMITH: And that should plan within 60 days.
FUKE: I would think so. So, you know, logically,I would think probably in about a month that
they would have to develop such a plan, email it to a various homeowners' association and all,
you know, the list of those who had testified and give them a 15-day, you know,window or so,
and give us chance to readjust and submit it to Planning.
CARR SMITH: Very good, thank you. Barbara.
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DEFRANCO: Yeah, I think if the community actually sees something being done in the
neighborhood, that action is being taken,then their ability to react is going to be quite different.
I think just sending them a letter saying something else is going to be done, that's not going to sit
as well as if you combine it at the same time with actually taking action and making it better for
the neighborhood. It's just my opinion.
CARR SMITH: Thank you. All right, anyone else? (No audible response) so—
DARROW: Yeah.
CARR SMITH: —where are we on this? Jeff.
DARROW: Thank you, Madam Chair. I'm just guessing that we are kind of winding up the
discussion on the amended conditions. What I don't know if we need to take a short recess—
but what I would suggest, staff is having a very difficult time trying to figure out exactly what
thoseamended conditions are, it would be good if we get clarity on those before we vote on the
motion so that everybody is exactly on the same page with the final amended conditions. I don't
know if that's a collaboration between the applicant and the Commission, or if the Commission
has it already. We've tried to keep up with it, but I think we got lost somewhere along the way.
CARR SMITH: So, Mike, is that something you would want to do in lieu of lunch? Since you
made the motion, would you be able to perhaps go with Sidney's recommendations, assuming
you are fine with them? It seems like discussion said that you were—
, VITOUSEK: Yeah. Yes.
CARR SMITH: Okay.
VITOUSEK: Yes, I think, I think Sidney captured the intent for the motion, so I would, I'd like
to move forward with the vote on that.
DARROW: Thank you.
CARR SMITH: You want to move forward with the—did you hear what Jeff said,though,
Mike?
VITOUSEK: No, sorry.
CARR SMITH: Okay. Jeff was recommending that we take a lunch break so that we can clarify
what the motion is. Staff is having a hard time understanding exactly what the motion is. So
maybe we take a lunch break, and you can clarify your motion.
VITOUSEK: Sure,just to clarify it right now, staff, my motion is that we approve the time
extension as recommended subject to the conditions stated by Mr. Fuke. And I- - -
FUKE: - - - language that- --
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CARR SMITH: Is that clear, excuse me, is that clear enough, Jeff? Or there has been a lot of
discussion, I understand why you guys are confused.
DARROW: We can move forward and amend that, and then we reviewed the transcripts and
make sure that we capture exactly. But basically, if you folks feel comfortable going forward
with what's been stated, we can capture it in the transcripts and be able to put it down- - -
CARR SMITH: Okay. Mr. Van Pernis.
VAN PERNIS: I would object to the motion(indiscernible–noise)
CARR SMITH: -- -I can't hear you, Mark.
VAN PERNIS: Can you hear me now?
CARR SMITH: Yeah,just speak as clearly as you can.
VAN PERNIS: I would object to the motion referring to Mr. Fuke's statements, because- --
Mr. Fuke to—who represents the applicant—to fill out the motion. I would like to see the
motion to have specific language. It may incorporate what Mr_ Fuke said, but I think it should
have specific language.
Secondly, I want to state now that I intend to vote against the motion,not because it's
unreasonable but because, number one,there has been no testimony by the,attorneys or Mr. Fuke
or the Planning Department that the applicant is existing at this time, thus the motion would be
void, and the permits are voided, and there could be litigation in that regard; secondly,the
applicant has done nothing for the public for 25 years and is asking for another five years.
And—
CARR SMITH: Okay.
VAN PERNIS: —they already closed the traffic study where Mr. Fuke acknowledges that
pedestrian and vehicular traffic has deteriorated badly in the twenty-some years. So for all these
reasons—and also, there is no reason beyond the control of the applicant to justify this
application; everything they talk about is within their control financially—
CARR SMITH: Okay,thank you, Mark—
VAN PERNIS: —bad precedent to set to approve of entity's own financial decisions as a
justification for extension.
CARR SMITH: Okay, great,thank you, Mark. Okay, I think Sid is typing in the language into
the Chat box, and—is that correct?
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YOSHIMOTO: Actually, Sid and I are texting. He is typing it out now, and I have suggested
maybe he could send it to Malia or somebody. I don't know if they can share screen; that way, it
would just be clear on the screen for everybody to see.
CARR SMTIH: Sure. It can be sent—is Jessica still here, or to Malia? Malia,what do you
prefer?
HALL: I would just, you know—do all the commissioners at this time understand what was read
out by Mr. Fuke as the condition? And if that satisfies both Mr. Vitousek's intent and the rest of
the Commission, then we can go ahead and take a roll call vote now. And then that language can
be submitted into,you know—because it was all heard, everybody heard it, it was read out. So
at this point if you are ready for the vote, we can vote.
CARR SMITH: Okay. Mike.
VITOUSEK: I believe it captures my intention, and I believe that's the standard practice in the
Commission hearing. So I think we are ready to vote.
CARR SMITH: Okay,very good. We were holding up because staff asked us to. Okay,
Jessica,we are ready for a roll call vote, please.
• ANDREWS: Okay, I have a motion by Commissioner Vitousek that was seconded by Max
Newberg, Commissioner Newberg. Okay,just wanted to make sure I had those correct.
CARR SMITH: Yeah.
ANDREWS: So the vote is to approve with conditions as amended, as stated by Commissioner
Vitousek and Sid Fuke. Okay?
CARR SMITH: Correct.
ANDREWS: Commissioner Vitousek?
VITOUSEK: --- aye—
ANDREWS: Sony, Commissioner Vitousek?
VITOUSEK: Aye.
ANDREWS: Commissioner Newberg?
NEWBERG: Aye.
ANDREWS: Commissioner Kealoha?
KEALOHA: Aye.
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ANDREWS: Commissioner DeFranco?
DEFRANCO: Aye.
ANDREWS: Commissioner Van Pernis?
VAN PERNIS: No.
ANDREWS: Commissioner Yates—oh, I'm sorry, she's absent. Chair Can Smith?
CARR SMITH: Aye.
ANDREWS: Motion passes, five to one.
CARR SMITH: Very good,thank you. So you folks will get our decision in writing. We'll
watch for clarification as well through our minutes as to what the language is, but I think we all
feel good about moving forward. And thank you for your patience here.
YOSHIMOTO: And Madam Chair and Commissioners, I just want to say thank you so much.
This has been a long process, and it has taken a lot of your time. I appreciate your service, and I
thank you just personally.
CARR SMITH: Thank you.
The hearing ended at 12:37 p.m.
Respectfully submitted,
Noriko Sauer, Secretary
Leeward Planning Commission
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