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Sent: Monday, April 05, 2021 8:35 AM
To: Council Testimony
Subject: FW:Testimony - Mark Van Pernis response to Communication 183
COUNTY CLERK
COUNTY OF HAWAI'T
RECEIVEDy�
Time .5:I3 p.m.. By UO
Date APR 0 2 2021
Begin forwarded message:
From: <mvpw@hawaii.rr.com>
Subject: Mark Van Pernis response to Communciation 183
Date: April 2, 2021 at 3:13:56 PM HST
To: maile.david(c�hawaiicounty.gov, ashley.kierkiewicz@hawaiicounty.gov,
aaron.chung@hawaiicounty.gov, heather.kimball@hawaiicounty.gov, Holeka Inaba
<holeka.inaba@hawaiicounty.gov>, matt.kanealii-kleinfelder@hawaiicounty.gov,
rebecca.villegas@hawaiicounty.gov, sue.leeloy@hawaiicounty.gov, tim.richards@hawaiicounty.gov
This is in response to Communication 183, the letter from Mitch Roth, concerning
myself, Mark Van Pernis. I am responding to the allegations and addressing the
concerns this may have raised. I did not receive a copy of his letter personally in my
email and was only made aware of it when others called to offer their support. Last
night I was made aware of a highly unfair video montage of"cherry picked" clips that
only present sections of my speaking, some from long ago; this clip does not present
the rest of the extensive testimonies, questions and comments by many others,
including commissioners. I will address that at the 2nd part of this letter.
First to address some allegations. At my first meeting a year and a half ago when an
applicant in essence said she would sue us if the application was not approved, I
became involved in a back and forth "conversation"with her. Commissioner and Chair
Carr Smith reigned me in, in that it was my first meeting, which was without the benefit
of instruction on procedure. Note that this application was then approved with
amendments that other Commissioners suggested and one I suggested, unanimously!
Particularly I am concerned if there were complaints by current Commissioners. I have
not received any. I am somewhat hard of hearing and zoom is not a format I am used
to, if I interrupted others, I apologized. Commissioner Carr Smith is no longer a
commissioner, her term having expired. Not being able to identify any of the persons
who supposedly complained, and not having received any complaints myself, I
contacted Ms. Noriko Sauer, the Leeward Planning Commission's Secretary, who was
in attendance with me at every meeting, (and also partially in charge of Zoom meeting
muting), and asked whether she knew of any complaints, inappropriate behavior,
abusing the staff, or the like, by me. Her consistent answer was "no". I U1,'b
Comm. No.
The Mayor was not present at any Leeward Planning Commission meetings thPf• To: ` 1�
1 Ref. Dote APR - 6 2021
attended, and I've attended them all since my appointment. If I offended anyone in
questioning during hearings, I apologize. It is my job to ask questions for the West
Hawaii community and to put it first. But I do not apologize for my votes on
applications for development or for long delays with amendments proposed by other
Commissioners or me. I am but one of nine Commissioners, and thus have little control
of the Commission, and votes on applications WITH AMENDMENTS are usually
unanimous, including me, in the spirit of cooperation with the community and the
applicants/developers. The amendments are sometimes agreed to by the applicant.
And sometimes not. Is this a source of complaints? Even when I vote in opposition to
the majority, I usually state the reason why, whether or not joined by other
Commissioners. Most of my questions and statements, as well as those of other
Commissioners, concerned matters of two major issues which kept reappearing.
• There are two major procedural matters concerning applications for extensive delay
from the required date of completion of development that an applicant has previously
agreed to. They are often granted extension of five years or more by the Planning
Directors without public notice or input. There has been discussion about addressing
such issues with "sunset" Rules or as a condition in every application. The matters are:
1.Expired or"stale" ordinances which required completion by a certain date and many
years after their expiration without timely completion, a new owner asks for
reinstatement of the old approval for way into the future. For example, a 2020
application by new owners came in for a subdivision that had been approved in 2005,
to be completed in 2009, but never started. The application asked for a time extension
of the prior approval to 2026. The 2009 expiration appeared to have been ignored and
no investigation or consideration of the changes to infrastructure needs since 2005
happened. That application was approved, but with an amendment by another
Commissioner with good discussion. 2. The second, related issue is that applications
for extensions of time often occur after a prior ordinance's time for completion has
expired, and it is required as a prerequisite to show"good cause beyond the
applicant"s control" for an extension. Examples are a flood or a labor strike. Current
applications have not presented any such uncontrolled good cause, and instead say
something to the effect of" I didn't have the money then, or the profits weren't right
then, or no buyer of the project appeared in time," etc.. Some Commissioners think
this should not be a cause beyond control, and that the applicant should apply anew
after the expiration of the prior approval, with the chance of new public input, and any
necessary conditions added to the new application because of the extensive passage
of time. In other words, a —sunset" rule or clause for approved developments, so the
public would get the benefits promised by the applicant/developer in exchange for
approval of the project at the same time as the project developed.
These 2 major procedural matters could probably limit the Planning Director's powers,
particularly as to developers and or their successors as to requests or applications for
long delays. I am just presenting facts.
Please consider this timeline and draw your own conclusions.
March 18, 2021 At the end of a commission meeting, Commissioner Van Pernis tries to
inquire of Mr.Kern about a conflict of interest concerning his prior client who received
subdivision approval from Mr. Kern as acting Planning Director, and is informed to put
that on the April 15 Commission Agenda.
March 19, Mr. Kern says in WHT that he and Mayor Roth will curtail the filling of
vacancies for West Hawaii advisory boards and committees in favor of
"appropriate" candidates.
March 19, Mayor Roth calls Van Pernis and suggests he voluntarily vacate his seat on
the advisory Leeward Planning Commission.
March 25, Van Pernis submits to the Commission a written request to place on the
April 15 Agenda the matter of whether or not Mr. Kern had a conflict of interest or
appearance of impropriety that disqualified him and his staff from acting on his prior
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client's subdivision application, and whether the appointment of an independent
substitute for only that application should take place.
March 25, Mr. Kern in a WHT article admits the conflict of interest, and is undoing his
subdivision approval, and will let his staff do it.
March 28, WHT publishes a "Viewpoint" article by Van Pernis that takes issue with a
policy of curtail filling vacancies of the Mayo filling vacancies of West Hawaii advisory
boards and committees and encourages community minded members to apply.
March 29, Mayor Roth sends a letter to Council Chairperson Maile David asking for
immediate action to vacate Van Pernis' Commissionership. i.e. before the
Commission's April 15 hearing.'
Regarding the video. I was not provided a copy of what, I am told, has been delivered
by the Mayor's office to the council persons. I heard it through another person the night
of April 1, 2021. It is highly unfair and "cherry picks" only sections of my speaking,
sometimes from long ago, and does not present the rest of the extensive testimonies,
questions and comments of many others including other Commissioners. In many
instances, I spent less time talking than other Commissioners, Staff, and/or applicants
and their representatives. I have learned on the job and taken to heart Ms. Carr-Smiths
statements from my early hearings. We often voted the same way. She is no longer a
Commissioner or Chair, her term having expired. Mr. Vitousek is now Chair, runs a
good meeting with direction and now my activities under him are much more moderate.
It is important to know that more and more I am using writings before or instead of
speech. I am becoming familiar with zoom (unknown to me before Covid) and now
know the procedure and have my own copy of Robert's Rules Of Order to review. I
believe that I am adequately experienced now as a Commissioner, and have
knowledge, creativity, interest and experience that serves West Hawaii well. I truly
want to serve in this position. And I humbly apologize, as I have on the record, for any
improprieties.
The video begins by selecting a portion of my very first hearing, when I did not know
procedures. It presents only my questioning and testifying. The application was for a
commercial/rental use, which had already gone on for two years, with access in part
through a residential subdivision. The applicant distributed a legal opinion that stated
her activities could not be governmentally controlled at all because her activities were a
"church". Long story short, I disagreed through my questioning. In the end
her application passed with amendments resulting from other commissioners
questioning and comments, and a "commercial kitchen" but no outside food sales
amendment from me. I learned a lot from this 2 and 1'/2 year old first hearing from then
Chair Carr Smith. I was appropriately chastised by her.
Also at a hearing years ago concerning an application for a commercial use (large
weddings, conferences, gatherings with many guests and vendors) on agricultural
property that included a substandard road shared with many other with many other
agricultural neighbors (many of which expressed opposition to the application, primarily
because of bad experiences on the common road), my questions were primarily
directed to that. Other commissioners also spent considerable time on that and other
subjects. The applicant refused unilaterally to improve the road for her desired
commercial use and the other owners of the road didn't want to pay for that. The result
was ah agreement by the applicant that she would meet with the neighbors to try to
work something out, and the application was unanimously deferred for that. My
questioning was too long and I was chastised by Ms. Carr-Smith.
Next the video presented selected portions of two hearings over several months for the
applications of Suffolk Development and Puaa Development asking to resurrect a 2005
expired ordinance for development of townhouses and a shopping center near the
Pua'puaanui Street and Queen Kaahumanu Highway intersection, and extend it to
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2026. I personally investigated this matter thoroughly and was spoken to by property
owners and subdivision associations in that area who would be affected by the
proposed future development with universally expressed opposition to it. The
applications also sought to eliminate or decrease most conditions and assessments for
the project, including affordable housing, a school lot, "fair sharer" payments, etc. I
learned, including through questioning through two hearings, that the applicants were
controlled by developer James Shuler through mortgagees and that a sale of the
property and project to Big Spring Development was in escrow, that as conditions of
sale, Spring required the old conditions to be waived or lessened and a 2026
completion date. In other words, the Commission was being asked to facilitate a non-
performing developer's real estate sale to another developer who was
not the applicant. This I understood the Commission was supposed to avoid. I also
learned that the applicants' traffic study produced by a Honolulu company reported that
there would be no negative effect resulting from the massive project generating a 1000
vehicles. The traffic study was faulty because it did not study Henry Street (which is the
primary feeder of traffic south on Queen K ) nor the impact on substandard Hualalai
Road, nor about seven other street intersections with Queen K ..nor approximately 5
streetlights on Henry Street and Queen K Highway. Instead it studied the Palani
Road/Queen K intersection (which is farther from the project than Henry Street) a
minor subdivision road, and Papaa'nui. Nearly all southerly,traffic on Queen K from
North Kona goes down severely congested Henry Street from Palani and the Ane
Keakahoule Highway with Henry having multiple left turn lanes from Palani and onto
Queen K before Palani goes further makai to and across Queen K. The intersections
the applicants studied does not appreciably contribute Queen K traffic south past the
subject properties, so those studies were faulty. Henry Street is also where Walmart
and the new Niumalu Shopping center (Kona's largest) are located and are huge traffic
generators sending vehicles south on Queen K past the subject property.
I realize this explanation is lengthy but it explains my questioning. Since the expiration
of the ordinance 15 years ago and the residential growth, the worst traffic jam in
Kona has developed in the area, with stopped traffic north and south and changing
lights with no movement, not even emergency vehicles. The applicants were
going to add 1000 vehicles to that eventually, but not going to do anything about the
traffic. At the end of the study, it said they were relying on the State to take care of that.
My questions and statements were concerning all of the above and I didn't get a lot of
straight answers. Then PLANNING DIRECTOR LEE ISSUED A NEGATIVE
RECOMMENDATION FOR THE PROJECT AND EXTENSION. THE COMMISSION,
INCLUDING MS. CARR-SMITH AND ME, UNANIMOUSLY VOTED A NEGATIVE
RECOMMENDATION.
Next, selected portions of the video presents the Palamanui application to lessen and
substantially reduce their condition and again extend its completion date to 2025 and
beyond. This was in my 8th District. Before the hearing, Palamanui's
consultant suggested I was biased against the project because many years ago, long
before I was a Commissioner, I had written a letter to the editor of WHT suggesting
that Palamanui should keep their promises to build a bypass road that was a condition
of approval many years ago. By the time of the hearing, Palamanui, dropped the claim
of bias. Nevertheless, I wanted to and did testify to clear my name. There was
extensive questioning and discussion by Commissioners and Staff and the applicant
and its representatives, and following amendments by other Commissioners, including
one at my suggestion, the application received a favorable recommendation without a
negative vote.
The matter of trying, unsuccessfully, to have the possible Kern conflict of interest heard
at the March commission meeting as an Administrative Matter
was important to me and the members of the public I had spoken with, thus my strong
statement. As recommended by Chair Vitousek I properly put that on the April 15
agenda instead. This is fully explained elsewhere. Thank you for your time.
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Mark Van Pernis
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