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HomeMy WebLinkAboutMIN PC 2021/05/04 2020-2022 Committee on Planning 7th Session West Hawaii Civic Center 74-5044 Ane Keohokalole Highway, Building A Kailua-Kona, Hawai i May 4, 2021 CALL TO The regular meeting of the Committee on Planning was called to order at ORDER: 10:00 a.m., in the Council Chambers, Kona, by Ms. Ashley L. Kierkiewicz, Chair. ROLL CALL: Present: Ms. Ashley L. Kierkiewicz, Chair Ms. Rebecca Villegas, Vice Chair Mr. Aaron S. Y. Chung, Member (came in later) Ms. Maile Medeiros David, Member Mr. Holeka Goro Inaba, Member Mr. Matt Kaneali`i-Kleinfelder, Member Ms. Heather L. Kimball, Member Ms. Susan L. K. Lee Loy, Member Mr. Herbert M. "Tim" Richards, III, Member (came in later) STATEMENTS The Chair directed the Committee to proceed to the next order of business, FROM THE Statements from the Public on Agenda Items. PUBLIC ON AGENDA ITEMS: The following individuals registered to speak and came forward when called by the Chair: Cory Harden: Comm. 183, comment. Kate Hickey: Comm. 183, in support. Keith Unger: Comm. 183, in support. Mike Vitousek: Comm. 183, in support. Barbara DeFranco: Comm. 183, in support. Charles Flaherty: Comm. 183, comment. Nancy Carr Smith: Comm. 183, in support. PC-7 May 4,2021 CHR KIERKIEWICZ: Closing public testimony at this time and moving on to the business of the day. Mr. Clerk, I want to take a couple of things out of order. Mayor Roth, I do apologize but Bill 32 is slightly less complicated. So I want to make sure that we are tackling that first, and I understand that the applicant is in the room. Mr. Clerk, Bill 32 please. Change Order As directed by the Chair and with no objection from the Council Members, the of Business: following item was taken out of order: BILLS FOR The Chair directed the Committee to proceed to the next order of business, ORDINANCES: Bills for Ordinances. Bill 32: AMENDS ORDINANCE NO. 04-149, WHICH RECLASSIFIED LANDS FROM AGRICULTURAL—5 ACRES (A-5a) TO SINGLE FAMILY RESIDENTIAL— 20,000 SQUARE FEET (RS-20) AT KALAOA 1st AND 2nd, NORTH KONA, HAWAII, COVERED BY TAX MAP KEY: 7-3-011:068 (Applicant: Ernest and Elizabeth Young) (Area: 1.8628 Acres) The Leeward Planning Commission forwards its favorable recommendation to approve this amendment, which would allow a five-year time extension to Condition C (Time to Secure Final Subdivision Approval) and amend Condition L (Fair Share Contributions). The property is located at the southwest corner of the intersection of Mahilani Drive and Mamalahoa Highway. Reference: Comm. 218 Intr. by: Ms. Kierkiewicz and Comm. 218.1: From Planning Director Zendo Kern, dated April 20, 2021, transmitting the draft transcript from the Leeward Planning Commission's March 18, 2021, meeting. CHR KIERKIEWICZ: Thank you, Mr. Clerk. May I have a motion to forward Bill 32 to the Council with a positive recommendation? Motion to Approve: Ms. Lee Loy moved to recommend passage of Bill 32 on first reading. Seconded by Mr. Inaba. CHR KIERKIEWICZ: Will the Planning Director and Deputy please come forward? And I see Elizabeth and Ernest Young joining us via Zoom. Aloha, if you could unmute yourself and please introduce yourselves for the record and provide us an overview of the request that you are making to the Council? Thank you. (Note: At this time, Planning Director Zendo Kern, Deputy Director Jeff Darrow, and applicants Elizabeth and Ernest Young came forward to address the members of the Committee.) Page 2 PC-7 May 4,2021 MR. YOUNG: So my name is Ernest Young. This is my wife Elizabeth Young, and we are just requesting a time extension on our property. Pretty plain and simple. CHR KIERKIEWICZ: Thank you. MS. YOUNG: The previous owners had started the subdivision process and we would like to finish it. That's kind of summing up the background of it. CHR KIERKIEWICZ: Thank you very much. Director or Deputy, anything to add? MR. KERN: Zendo Kern, Planning Director. Good morning, Madam Chair and Members of the Planning Committee. Nothing to add, a straightforward application for a time extension. CHR KIERKIEWICZ: Yeah, thank you. There was a very robust discussion in Commission and favorable recommendation. So,thank you. Any questions or comments from my colleagues? Mr. Inaba. MR. INABA: I just wanted to point out, Section K, I think might be reworded. The amendment says, "In the unlikely event that surface or subsurface historic resources, including human skeletal remains, structural remains . . . cultural deposits, marine shell concentrations, sand deposits, or sink holes are identified during the demolition and/or construction work, cease work in the immediate vicinity of the find . . ." Should it be, the applicant"shall?" I'm just wondering if that should be modified there, Director or Deputy Director? MR. KERN: I don't have that right in front of me, but I believe Maija Jackson (Planner VI) is on-line. Is Maija Jackson in the Zoom? CHR KIERKIEWICZ: Jeanette, is Ms. Jackson in Zoom? No, okay. MR. INABA: Page 3, amended Section K. CHR KIERKIEWICZ: Mr. Inaba, sorry, having a difficult time hearing. So you were looking for clarification on Condition K and the language? MR. INABA: Yeah,just the wording there. If it should read, "The applicant shall cease work," instead of just, "Cease work in the immediate vicinity of the find." Page 3 PC-7 May 4,2021 CHR KIERKIEWICZ: Just noting for the record that our Director and Deputy of Planning are deliberating. MR. KERN: So this condition is a standard condition that pretty much goes in every single one of them. So in between where it says, "construction work, . . ." MR. INABA: "Construction work," it just comes on to, "Cease work," instead of, "The applicant shall cease to work in the immediate vicinity of the find, protect the find from additional disturbance and contact the State Historic Preservation Division." MR. KERN: I would say that that would read better, yeah, to make that amendment, "The applicant `shall' cease work." We would support that. MR. INABA: Okay, is that something we do here on the floor? CHR KIERKIEWICZ: You are welcome to transmit an amendment. MR. INABA: Sure. CHR KIERKIEWICZ: It would be much cleaner for the record. But I am noting that and should we move this forward with a favorable recommendation, we can take that amendment up at Council. MR. INABA: Definitely. CHR KIERKIEWICZ: Thank you. Any other questions or comments? I'm sorry, Mr. Inaba, are you ? MR. INABA: I just had one more question, please. And it just is from Section D, initially there was going to be access to proposed lot B-3 from Mamalahoa, and that's being taken out now so I'm just wondering why it's taken out. So the only access now is via Mahilani? MR. KERN: That's correct. So originally they had an access off of Mamalahoa that was allowed by the State when the property was zoned Ag. Towards the end of putting together the background report and recommendation, the State Department of Transportation submitted their request to remove that access. So generally when they ask, we make that part of the condition. MR. INABA: Got it. Thank you, Director. Chair, that's all I have Page 4 PC-7 May 4,2021 CHR KIERKIEWICZ: Thank you, Mr. Inaba. Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Yeah, I just wanted to commend Mr. Inaba for reading through and finding that small change. And in the future, whatever document this is based on as being a conditional amendment, make sure that, "The applicant shall," is put between there, so we won't have to refine this. Thank you. Good job, Mr. Inaba. CHR KIERKIEWICZ: Any other questions or comments? Seeing none, we have a motion on the floor to forward Bill 32 to the Council with a favorable recommendation, all in favor please say "aye." Vote on Bill 32: The motion to recommend passage of Bill 32 on first (Approved) reading was carried by the following voice vote. Ayes: Committee Members Chung, David, Inaba, Kaneali`i-Kleinfelder, Kimball, Lee Loy, Richards, Villegas, and Chair Kierkiewicz—9. Noes: None. Absent: None. Excused: None. CHR KIERKIEWICZ: Motion carries. Thank you very much, Elizabeth and Ernest for joining us today. My staff will be in touch with you regarding when this is going to be agendized at Council. MR. YOUNG: Thank you. CHR KIERKIEWICZ: Mr. Clerk, if we could go to the top of the agenda, please. Return to Order The Chair directed the Committee to return to the order of business. of Business: COMMUNI- The Chair directed the Committee to proceed to the next order of business, CATIONS: Communications. Comm. 183: RECOMMENDS REMOVAL OF MARK VAN PERNIS FROM THE LEEWARD PLANNING COMMISSION From Mayor Mitchell D. Roth, dated March 29, 2021, requesting the Council's review and approval. Postponed: April 6 and May 4, 2021 (Note: There is a motion by Mr. Inaba, seconded by Ms. Lee Loy, to recommend approval of the Mayor's request.) Page 5 PC-7 May 4,2021 CHR KIERKIEWICZ: Mayor Roth, I'd like to invite you to come forward, please? I believe you have additional information to share with this body. (Note: At this time, Mayor Mitchell D. Roth came forward to address the members of the Committee.) MAYOR ROTH: Good morning. Not so much additional information, I think what was said, especially by the former Chairs and the current Chair of the Commission, as well as Commissioner DeFranco, really set the stage. This is really about a standard of conduct of how we in government should be treating people. It has nothing to do, you know,positions and votes on how things went. It really has to do with what we're here to do, and how we do it, and making sure that we're doing it in an ethical way. I noticed in reading through the testimonies that have been sent in. Some things that really jumped out to me. One, is that, even after you had talked to Mr. Van Pernis and postponed this meeting, you gave him a chance. And there was still this behavior that is really unacceptable for us in government to be putting on. I don't know if you had the chance to watch the video, but I was reading through the testimony, and it's not often that Cory Harden and I agree. But in her testimony, her last paragraph, she talks about the situation with the Hickey's. And I have to just set the stage a little bit here. The recommendation from the Planning Director was to deny. The motion was to deny, but then the attacks came. And so, I'm just going to read from Ms. Harden's testimony, "But unfortunately, near the end he was very harsh with an applicant who was already stressed that the vote about to be taken would cause her to lose her farm. The applicant ended up in tears. Chair Mike Vitousek had to intervene and another commissioner felt the need to apologize for Mr. Van Pernis' behavior." In the statements that Mr. Van Pernis made, he was putting words in Ms. Hickey's mouth, and saying things that weren't said by her. It was really uncomfortable to watch. I've got to be honest with you, after the last hearing, I had a lot of hope that Mr. Van Pernis would significantly change the way he dealt with people. And you know, for a while because of the way they had things set up, you know,the way the questions were asked, there was a little bit. But at the end of the day, he was still disrespectful. Not treating people fairly. And enough so that we have an ethics complaint that I think is a pretty good ethics complaint. Page 6 PC-7 May 4,2021 There's another thing in Mr. Vitousek's testimony that I saw for the first time as I read through the testimony. And that's that the commission is asking the Ethics Committee to take a look at a situation where there is possible self-dealing by Mr. Van Pernis. In Ms. Carr Smith's testimony, there's a letter from Mr. Van Pernis where he starts questioning and explains why he was questioning someone on the bankruptcy where he was the attorney in a case that dealt with this case. That's definitely a cause for alarm as attorneys where you're dealing in something as a commissioner where you are an attorney in a case. Ethically, that's really problematic. And so, at the end of the day. The vote, the one that really changed Chair Vitousek's mind and was just really disturbing was something that they voted along with Mr. Van Pernis. It was a recommendation from the County, you know, from our Administration. It had nothing to do with which side of the vote it was, it had to do with how people are being treated. And from the very beginning, that's the position that we took. There's very little that commissioners can do to, you know, that's in the rules that would allow them to do anything. There's very little that the Council can do, and there's very little the Mayor can do. The Mayor can do what we've done. We asked you to remove him and the Council has the ability to remove. Other than that, there's very little that we can do to change behavior. But as you've seen from the testimony today, and I highly recommendI know that those commission members are still here that you talk to them. And you know, they got a couple of minutes to testify, but there's frustration there. There's frustration that, you know,they had six hours for I think three different proposals that came before them, and most of that was because of Mr. Van Pernis' behavior. Not the way he voted, it's behavior. So that's all I have to say. Thank you. CHR KIERKIEWICZ: Thank you, Mayor Roth. I'm going to open it up for questions, comments from my colleagues either for the Mayor, Planning Department. And just to note, we do have members of the Leeward Planning Commission available to answer any questions. Ms. Lee Loy, go ahead. MS. LEE LOY: Thank you, Chair. I actually was hoping Mr. Vitousek was still in the chat, because I found his testimony very powerful to really, truly articulate the concern that we are having to address. But Mr. Vitousek, thank you for staying on. You mentioned disappointment, but you mentioned specifically, unethical behavior. And I was hoping you could elaborate a little bit on what you saw as unethical behavior. Page 7 PC-7 May 4,2021 (Note: At this time, Leeward Planning Commission Chair Michael Vitousek returned to the table to address the members of the Committee.) MR. VITOUSEK: Right. Thank you. And I won't claim to know that something is unethical, but I would point out the potential that it could be considered unethical. I would leave that decision up to the Board of Ethics to make that final call. But the issues that I'm referring to are number one, what Mayor Roth said about being a party to a lawsuit against one of the applicants being a representative of a party of a lawsuit against the applicant, and then questioning that applicant on his financial information, and then disclosing the fact that he asked that question because the applicant had avoided a judgement against his client. So it gave the appearance the Commissioner Van Pernis was using his platform on the Leeward Planning Commission to gain information about the financials of a case that he had been involved in as an attorney. And to me that seems like it could potentially be an ethics violation and none was raised by the applicant. The second one being the issue with the Palamanui Development that was reviewed by the commission where Commissioner Van Pernis requested substantive changes that affect the Makalei Subdivision without disclosing the fact that he's a resident of the Makalei Subdivision. That information only came out to the commission at the April 6 1 committee meeting. So after that, I initiated an ethics inquiry to determine if that action of making changes that affect the subdivision that you live in, and then abstaining from the vote could constitute an ethics violation. And then finally with the Hickeys, where there is an ethics complaint against Commissioner Van Pernis, that again would be decided by the Board of Ethics. But in my personal opinion, Commissioner Van Pernis behaves differently when he has a personal interest in the matter. When there's a potential ethics conflict, such as the Pua`a Subdivision or Palamanui or potentially the Hickeys, where he seems to be looking after his interest more than he's looking after the interest of the community, and that's what raises those ethics questions to me. MS. LEE LOY: Thank you, Mr. Vitousek I really appreciate, you know, you sharing such a concern in a very diplomatic way. Chair, I'm going to yield at this time. I'm sure Mr. Van Pernis will be able to share with us, but I'm going to yield at this time. CHR KIERKIEWICZ: Thank you. Anyone else? Ms. Kimball. Page 8 PC-7 May 4,2021 MS. KIMBALL: Mr. Van Pernis, I'd like to give you an opportunity to respond, but I think it was very clear from this committee last time, that we had certain expectations for how you would receive the information the concerns that we had. And I for one, do not feel like our recommendation was fully heeded. I want to ask Commissioner Vitousek. I believe in your letter to Mr. Van Pernis, you requested an apology to the commission. That never came. Is that correct? MR. VITOUSEK: Commissioner Van Pernis sent an email in which he stated that he has apologized through his testimony to the Planning Committee. And then he emailed that he would apologize, that he intended to apologize. We never received a formal written apology nor a stated apology at the commission meeting. MS. KIMBALL: So, let me just ask, and if this is just your opinion of course, do you feel that the recommendations made by this body in the previous hearing on this matter were taken to heart by Commissioner Van Pernis and reflected in his behavior? MR. VITOUSEK: I personally believe that Commissioner Van Pernis did his absolute best to maintain his decorum but was just simply unable to because he has just shown this pattern of behavior that heI don't believe he's capable of changing. I think he did his best effort to change but simply failed. MS. KIMBALL: Thank you for that comment. This is really difficult for me. I recognize that this is a volunteer position to serve on this commission. You're obviously very well informed about the importance of the work that the Planning Commission does. This is an extraordinary step to ask for somebody to be removed from a commission, and I think that's why we're all giving so much weight to the discussion. I do it with a heavy heart, but at this point I feel like I have to support removing you from the commission. But I will give you a chance to respond. There are two things that I want to express to the Administration is when you ask us to do something so terribly difficult, don't give us half the information. The first hearing on this, there was a lot of stuff missing in terms of what had been done in the past; letters that were supposedly sent, we didn't have those letters. It's very difficult to make decisions on something as heavy as this without that real clear information. I know myself and all of my colleagues take decision making very seriously, and we just can't do that without all of the information from the get-go. Page 9 PC-7 May 4,2021 At this point, Mr. Van Pernis, you know,please come forward. Share a few of your thoughts. I feel at this point, it's unlikely you'll change my mind, but feel free to explain how you see this differently. Thank you. MR. VAN PERNIS: Chair? CHR KIERKIEWICZ: Yes, please come forward and have a seat at the table. And could you introduce yourself for the record? Thank you. (Note: At this time, Mr. Mark Van Pernis came forward to address the members of the Committee.) MR. VAN PERNIS: Mark Van Pernis. I live in Kona. Let me correct the record. First, the Palamanui application where they in essence with prior applications had three five-year extensions. The Palamanui application had no effect whatsoever on Makalei Estates, where I live. Any changes I requested were because of a discrepancy where some changes had been made by the Planning Department in the application, but there were points and parts of the application where the same changes were not made. It was merely a mistake. I pointed out those mistakes and the Planning Department agreed completely to make the changes and the applicant also agreed to make the changes. This would eliminate a situation where there would have to be a trespass or a condemnation of certain lands in Makalei Estates. They all admitted that that was a mistake and there was a correction. It had no effect whatsoever on Makalei Estates. There's no road connection (inaudible). Next, let me talk about the last Planning Commission meeting. I urge you to read the transcripts and you'll see my activity were completely reasonable and civil. And the comments made were basically during the discussion with the other commissioners. The vote on the Hickey application was four to two, against. And crying, as you saw here, the crying in the prior hearing was not the result of my questioning. In fact, it was volunteered by the applicant with other commissioners asking questions. This was a situation where it was rejected. The first application was withdrawn because apparently they didn't want to comply with the recommendations of the continuance, and the second application was voted down four to two. That takes care of the Hickey complaints and their realtors and 30-something people they had testify, which were basically vendors. They did not have approved access. That was clear from the first hearing. And the second hearing, their access was totally substandard, dangerous, and posed a hazard to all the adjoining landowners. Page 10 PC-7 May 4,2021 I had no interest, no right or proprietorship to that property (inaudible). Ms. Carr Smith said she had a relationship to her husband to the access, but was not disqualified. I also want to point out that many years ago, 10 to 15 years ago, although the case went on for a long time, I was an attorney, this was again 15 to 20 years before I retired and was appointed a commissioner, we sued (inaudible) as representatives of Hawaiians, who made a claim to some of McCandless Ranch's property. Mr. Unger did not disclose it. I didn't feel it was a conflict. Mr. Unger's Ranch which is associated, was a defendant. But he didn't disclose that, but I had no problem with that. In regards to the bankruptcy matter, as I explained. I wrote it and I explained it. Ten years at least before I was retired and appointed a commissioner, I had represented someone who obtained a judgement against Brian Cook foreclosure. In a deposition, Mr. Cook, ten or so years ago, he said he had no interest whatsoever in any real estate, any limited partners, or any limited liability corporations, or the like. I noted that when he applied ten years later, that he claimed to be, well he was the applicant who had an interest in two or three LLC's. So I asked him, what about the bankruptcy while he was there, "How come you said one thing in the lawsuit and another thing in this application?" I've never used it. And I practiced law, I never used that whatsoever, so there's no conflict. And I'm perfectly happy to go to the Board of Ethics and repute it. As well as repute anything regarding Hickey, who was basically using prime agricultural property for a Commercial use without a deeded access, and was (inaudible). And the majority of the commission found that to be true. And she withdrew the first application and the second one was turned down. I(inaudible) Ms. Carr Smith, although we, 90 percent of the time vote the same way, in that particular application, I was in the majority, she is in the minority. Then let me say that all these other things that Mr. Unger, Ms. Carr Smith, etcetera bring up were then, not now. I have submitted my letter with exhibits. I hope you've all read it. And you know, you need to look at the transcript of the last hearing and see that I acted entirely appropriately and followed Mr. Vitousek's instructions in every case. Yes, I asked some hard questions. My main questions, I tried to write them, so the answers would be, "yes" or"no"to save time and to make more efficient questions. Now I see some people say, well that's leading if you answer, "yes" or "no." Well, that's better than a narrative, I think. It makes it easier for the other commissioners if there's a follow-up. Page 11 PC-7 May 4,2021 As far as time is concerned, that last hearing, the time I spent was less than certain other commissioners. And I would point out that the meeting took six hours not because of my questions, which were very limited, read, and I struck out a lot that Mr. Vitousek agreed to. The length of time that that was related to the fact that the applicant, Hickey, had 30 years. So 30, 40 testifiers, vendors, friends, and realtors saying this was a good idea. And my questioning was primarily on the fact that the road created a liability for other parties. And the improvements to the road were not adequate and would have to meet governmental standards, which she didn't want to do. The Hickeys primarily said they had to have this commercial operation to make money, to pay for the farm. If you read the transcript you'll see that some of Hickey's statements are not accurate. And you'll see that my questioning of the Hickeys were entirely related to the application and proper. If you want me to write out my questions so a narrative answer is invited, I'll do so, but I think a"yes" or "no" question is much more appropriate. I'm surprised Mr. Vitousek said what he said because I thought everything was perfect. If you read, please read the transcript and see that all my questioning is proper. I don't think that the reason for the commission's existence is to make everybody very comfortable. Applicants have to answer questions. The Planning Department has to answer questions. If some of those questions are not supportive of their application or are hard to answer. Or I continue to ask if they avoid questions, I think it's entirely appropriate. I don't think the idea is to make this a happy, positive experience, but to represent the community as well as the applicant. If you read the transcripts, I think you'll see that I acted entirely appropriate. And also as my letter says, I now have the instructions and in my writing, my behavior. Now I think I can bring a lot to the commission, and I don't think that there are that the purpose is to make everybody feel real good about the application. Hard questions have to be asked in representing the community. That may involve hard questions to the applicant. I understand, I have seen them, I've read other than what's in the newspaper, that I have support for the community. And that's what I would ask for, listen to the community. This community is in favor of my continued commissionership, and there is also quite a bit of reading of the transcript. (Inaudible). Thank you, I'll be happy to answer any questions you have. But remember, this is now, that was then. They're testifying about what the situation was beforehand, not now. Look up my questioning of the Hickey's and you'll see that it was entirely appropriate, and I didn't cause any stress any more than any other commissioner did. Page 12 PC-7 May 4,2021 CHR KIERKIEWICZ: Thank you, Mr. Van Pernis. Ms. Kimball, you still have the floor. MS. KIMBALL: Thank you, Chair. Just a few points again, from my perspective. I have no further questions for you, but the matter of the ethical questions raised. You know, they're accusations at this point, and I don't personally think I can take them into account as we are not the body to make decisions about that. Secondly, this isn't about any of the decisions that you've made. In many cases, there were unanimous decisions. You were part of the majority. You do ask good questions and I hope that if this body chooses to support your removal from the commission that you will continue to participate as a testifier and submit questions to the commission that they should consider. For me, watching the videos prior to the most recent meeting and the discussions from the Chairs, the key is really lack of decorum and the failure to follow the protocol set out by parliamentary procedure, Robert's Rules of Order. Most particularly the requirement that matters be discussed that are on topic and that are agendized and that are not personal in nature. And I feel like for me, that was kind of the thing that sealed the deal with the last meeting that you participated in. I feel like that last component of the Rules of Order was again breached. And you know, from my perspective, the opportunity was given and I was not satisfied with the response. With that, Chair, I'll yield. CHR KIERKIEWICZ: Thank you, Ms. Kimball. Mr. Richards. MR. VAN PERNIS: Let me respond, please. First of all, I'm retired a couple of years now. I have no active caseload whatsoever, except for one case involving some South Kona property being subdivided. I have no interest in any files, any cases. I have withdrawn from every case that I've ever been involved in that was still active. I have no interest in any of the proceedings before the Planning Commission. If I did, I would disclose them. For instance, there is an upcoming hearing involving Arnold Rabin, and I represented Mr. Rabin years ago, and I'll bring that up and see if anybody thinks there's a conflict. I know what a conflict of interest is and if one exists, I will certainly disclose and ask for an opinion. I would point out that Corporation Counsel has never, never talked to me or raised any conflict of interest matter regarding the bankruptcy or Palamanui. Palamanui complained that I had written a letter to the editor seven to ten years ago encouraging the Council to maintain certain conditions that have been imposed in 2005. Page 13 PC-7 May 4,2021 I responded that did not affect my judgement. It was basically in favor of the conditions. And that I had a free speech right to write whatever letters to the editor I felt like back then before I was a Planning Commissioner. They withdrew their complaint. Palamanui withdrew it after that was disclosed. They had no complaints whatsoever. And I would point out that in the Palamanui process that everything was agreed to with the Planning Department and the applicant. All the changes I brought up, as well as other changes brought up by Mr. Vitousek and others who, regarding a park. Now, I abstained from that vote. I didn't vote against it. It passed 8-0. I don't know whether it's come before you or not. I abstained because of the fact that they wanted a total of 25-year delay, and I felt the project should be expedited. And I was concerned that they were basically trying to sell a project rather than build it out. So I abstained and did not vote against. I had no conflict of interest. CHR KIERKIEWICZ: Thank you, Mr. Van Pernis. Mr. Richards, your light is on, you have the floor. MR. RICHARDS: Thank you, Chair. And first of all, I'm going to start out by echoing some things that Ms. Kimball said. Mr. Van Pernis, no one is questioning your knowledge. No one's questioning your decisions. What is being questioned is the behavior. That's why we are here today. So, any further conversations about decisions and voting are immaterial to what we're discussing today. I want to borrow some of your words and set the record straight. In the testimony there was a reference to myself and my wife making, and I quote, and this is from Ms. Christie Van Pernis' testimony, "After reading on Facebook,that," according to my wife, "Nancy Carr Smith hates Mr. Van Pernis." That is inaccurate and that is manufactured. So I'm going to put that straight. That was never stated. MR. VAN PERNIS: Let me respond. MR. RICHARDS: I have the floor, Sir. Well, you just highlighted the problem. Thank you. I am puzzled that we are here discussing behavior, and problematic behavior and lack of decorum. We're not discussing your knowledge base. In fact, the people requesting this acknowledge your knowledge base when it comes to the land and land use here on the west side. You said that you were puzzled by what Mr. Vitousek said. Quite frankly, I'm puzzled that you're puzzled about that, because I think it's very clear. In our meeting a month ago, you made reference to the applicants being witnesses and you are examining them. And that's not true. These are people in our community that we are seeking a way forward. Page 14 PC-7 May 4,2021 It's no secret I voted against you when your confirmation came up in the previous Administration. And it was for this exact reason that was my concern going forward. This Administration, Mayor Roth, has been very articulate about how we will be conducting ourselves and treating the public, because the reality is, we are here we represent them and we work for them. We may not agree but we can be cordial while we disagree. For those reasons, I fully support your removal. We have a dysfunctional Leeward Planning Commission right now. And I'm deeply concerned, we're going to lose more commissioners if we don't take the reins on this and make a difference here. We have to do something that is appropriate. Concerns have been raised previously. This Council opted to give you a second chance. You were given a second chance, and even the Chair, you didn't embrace it. You decided to be, I won't use the term combative, but aggressive towards the people and we cannot stand for that. We don't have to agree, but we can be cordial when we disagree. And again, it's not about your knowledge base. It's not about your decisions, it's about the conduct. And for those reasons, I'm supporting your removal because I do not believe this is the kind of commission we need. I do not believe this is the behavior that our commissioners need to conduct themselves under. So with that Chair, I yield. CHR KIERKIEWICZ: Thank you, Mr. Richards. Mr. Van Pernis, I'll give you a couple minutes to respond. Thank you. MR. VAN PERNIS: May I respond? CHR KIERKIEWICZ: Yes, make it brief. Thank you. MR. VAN PERNIS: First of all, a reference is made to Christie Van Pernis. I'm aware that she wrote a letter, but I did not see it, I did not participate in it. Christie, my wife, acted independent of me. I know she hesitated to get involved at all. Unless she was terribly offended, I don't think she would have written a letter. But I'm not aware of the letter. I don't know its contents. She wrote it. She sent it in. Secondly, as far as the second chance you referred to, look at my letter. Look at the questioning; look at the transcripts of the proceedings. You'll see that I acted entirely reasonable. Maybe some questions were hard, but the hard questions are the purpose of the commission. We represent the community as well as the individual. If the individual's application is contrary to the best interest of the Page 15 PC-7 May 4,2021 community as was the Hickey application, we have to act accordingly. And I point out that I've never been in the minority of any application. CHR KIERKIEWICZ: Thank you, Mr. Van Pernis. Any other questions or comments? Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: I just wanted to get some questions answered,just from what I've heard today. And you know, I understand everyone's concerns. And good job, good job, I liked the way everything was laid out for us to see. But has there been an Ethics Code violation that has been found to date for Mr. Van Pernis' actions? Anybody? CHR KIERKIEWICZ: I believe there are two at this time. MR. KANEALI`I-KLEINFELDER: Like one has been found? We have a conclusion of an Ethics Code violation? CHR KIERKIEWICZ: Corporation Counsel are you able to comment, or provide clarification to the question? (Note: At this time, Deputy Corporation Counsel Renee Schoen came forward to address the members of the Committee.) MS. SCHOEN: Good morning, Renee Schoen, Deputy Corporation Counsel. I'm not aware of a finding by the Ethics Board of a violation. MR. KANEALI`I-KLEINFELDER: Okay, so nothing to date. There's been no ethics violation that's occurred? MS. SCHOEN: Yeah, nothing that, a finding by the Hawaii County Board of Ethics. MR. KANEALI`I-KLEINFELDER: Okay, thank you. And then,just to touch on that, because we're talking about the Hickey's, and cannot say that your actions may have been the best Sir. We did give you a warning to be better, yeah? The vote for the Hickeys, was it four to two? I don't think we have the transcripts for that meeting. Does anyone have the transcripts for the meeting that occurred, April 14''? CHR KIERKIEWICZ: I don't believe they're in our board, but the video was posted to you too. MR. KANEALI`I-KLEINFELDER: Okay, so no transcripts. What was the vote for the Hickey's property? Page 16 PC-7 May 4,2021 CHR KIERKIEWICZ: Mr. Vitousek? MR. VITOUSEK: Yeah, it was four to two in favor of the Deputy Planning Director's recommendation to deny the application. MR. KANEALI`I-KLEINFELDER: So it was close, but it wasn't that close. It wasn't a tie? MR. VITOUSEK: No. MR. KANEALI`I-KLEINFELDER: Okay. And this little bit of history about the Hickeys, this has been an ongoing thing, or this is new? MR. VITOUSEK: It was agendized previously three or four months ago, and withdrawn by the applicant. And then resubmitted in April. So we had one meeting on it previously, and then April again reconvened with this on the agenda. So this is the second time. MR. KANEALI`I-KLEINFELDER: How many testifiers were there? Was there a lot of testimony for or against? MR. VITOUSEK: There was a significant amount of public testimony, written and oral. The first meeting, there was a significantly more testimony. On the second meeting, there was less public testimony. It was oral testimony on the day of the meeting. But still, you know, a fair amount. MR. KANEALI`I-KLEINFELDER: Mostly positive or mostly negative? MR. VITOUSEK: Split. MR. KANEALI`I-KLEINFELDER: Split. And then how far back does the issue go? MR. VITOUSEK: In terms of the application? I believe that the Hickeys had been operating a wedding venue business for a year or so and then realized it was out of compliance with their zoning. And then began to try to get in compliance and pursued a Special Permit about maybe six months ago. Something like that. MR. KANEALI`I-KLEINFELDER: Okay. Then,just for my information, has anybody in the Planning Department ever worked with the Hickeys. Mr. Kern? MR. VITOUSEK: Currently? Yeah, Director Kern was the initial consultant for the Hickeys when they came in the first time. And then when they came in the second time, Director Kern had recused himself and Deputy Director Darrow Page 17 PC-7 May 4,2021 served in the capacity as Planning Director. And he's the one that provided the recommendation to the Council, and he is the one who made the presentation. MR. KANEALI`I-KLEINFELDER: Okay, thank you. Thank you for clarifying that. The behavior—we gave you warning, Sir, you know, to get better. We asked you to be better in your behavior on the Council. Now, I'm looking through the questions that were put in front of us. Are these your questions, your emails? I don't know if you—have you seen these documents? MR. VAN PERNIS: I did write the questions out. I withdrew some of them. I have to look to see which ones I withdrew. Vitousek suggested that I withdraw some. That they had become inappropriate, based on the applicant's testimony, so I withdrew them. MR. KANEALI`I-KLEINFELDER: Thank you. The reason why I'm asking is, I looked at these questions that were submitted. One page looks a little funny, just the way the printout does, looks like it's been inserted into the middle. But overall, I feel like your questions were pretty much on point. And not diving into anything that seems leading other than asking for information. That's the same thing that we have to do on this Council is ask for information to understand the full scope of what's happening. MR. VAN PERNIS: Well, I was trying not to be lawyer-like, so leading didn't come into my thinking. I was thinking simple questions requiring "yes" or "no" answers, is what I was interested in. Making it easy on the reader and easy on the answerer. MR. KANEALI`I-KLEINFELDER: But I think, I mean, look around this room right now, you got lawyers on the Council; you got a lawyer as our Mayor; you're an ex-lawyer. There's lawyers everywhere in here. I don't know how you could not be a lawyer in your approach. Even the approach that was taken to ask for your removal is very MR. VAN PERNIS: (Inaudible). Listening to the instruction of Mr. Yoshimoto and the writings he gave me, reading Robert's Rules, I tried to comply with those. Lawyering is second. I would like to point out that Robert's Rules are not strictly followed by the Planning Department or Planning Commission. I think we all could use some instructions. Particularly Ms. Carr Smith, but she's no longer Chairman, so that's not important anymore. But, I received instructions and I've read Robert's Rules and I tried to comply as best I can. I'm putting the lawyering behind me, so to speak, as I am retiring. MR. KANEALI`I-KLEINFELDER: So I guess, long story short, I mean I guess you're going to see how the vote goes today. But we did have a very long Page 18 PC-7 May 4,2021 discussion last time. And I think we spent a lot of time just hashing out the details. Just from thinking about this over the last month. I've seen people come in front of this Council and cry, and not for good reasons. I'd say that sometimes the questioning from this dais has been very intense, and I've seen people treated not in the most friendly way. And I think that sometimes it's very important for us to ask very hard questions of people and that is our job. And we are not here to make friends. We had that discussion at the hearing for our new Legislative Auditor. You don't always have to be friendly, but we do have to be respectful. And so, I guess with that said, you're going to see how the vote goes today. I appreciate what you bring to the commission. And I would say for the Mayor's Office, if Mr. Van Pernis is removed, I'm hoping that someone of his caliber and his knowledge and his skillset is brought in. But also who holds what he finds strong to this community. And the things that he brings need to match if you're going to bring someone else in. And I'm just saying that in advance. I'm looking at our next Planning Commission meeting agenda, there's a lot on that agenda, some large projects coming up. I want to make sure someone of Mr. Van Pernis' caliber would be found if the vote goes against him today. But thank you, Mr. Van Pernis for being here today. MR. VAN PERNIS: May I respond? MR. KANEALI`I-KLEINFELDER: Maybe shortly. Like most of us has said, you know, I'm just going to see how the vote goes, and yeah. MR. VAN PERNIS: I just like to say that, I have tried to be respectful and I will continue to be respectful, and try harder. But the applicant must realize that the hard questions are going to be asked. For instance, a prior application involving the concrete parking garage on Alii Drive which have been there since 1998, completion. And people come in with their attorneys and ask to extend that even further. And there appears that the applicant was not corporately recognized or corporately registered. And I brought that up and it was dismissed by Ms. Carr Smith as then Chairman. And the point in saying basically, well the Planning Department accepted the application and I shouldn't have accepted the application, and I shouldn't have to look into whether the applicant is registered or not. Under Robert's Rules, that is supposed to be dealt with first to see whether the applicant has a good standing, and that was just dismissed. I didn't object then. I ask hard questions of the applicant, but it's not disrespectful. It's just hard questions about the application. Page 19 PC-7 May 4,2021 CHR KIERKIEWICZ: Thank you, Mr. Van Pernis. MR. KANEALI`I-KLEINFELDER: Thank you for saying that. Today's society is very based on having very superficial conversations, and when you start digging into real details and asking really strong questions, there's usually the opinion that is just an argument. But if we weren't able to argue and deliberate in a friendly manner, we wouldn't get anywhere. So there's a fine balance between deliberating and being disrespectful. And it's rare these days just given society. That's how I feel. That's my personal feelings. But, thank you. Thank you for your response. I appreciate it. MR. VAN PERNIS: I just ask that you look at the transcript, and you'll see that I was not confrontational. MR. KANEALI`I-KLEINFELDER: I wish we had that transcript in front of us instead of watching the video, but they serve the same purpose. But, I yield Chair, thank you. CHR KIERKIEWICZ: Okay, and I wanted to share that if there are questions for Ms. Hickey, she is available in the Zoom room. Thank you. Chair David. MS. DAVID: Thank you, Chair Kierkiewicz. Chair Vitousek, are you still online? MR. VITOUSEK: I am. MS. DAVID: Hi. Thank you for staying available. Looking at your April 121h letter to Mr. Van Pernis, you made several recommendations which surround the fact that you're requesting that he refrain from attending any future meetings until some training took place, written apology, and also that you had given him—you had put him basically on notice, that if his demeanor does not change, then you will take actions as a Chair would in having him removed. Those provisions in your letter, have they been addressed? Number one, the ethics training on the Planning Commission rules; the Ethics Board training, and OIP (Office of Information Practices); Robert's Rules; and Sunshine Law. MR. VITOUSEK: Yes,that element, the training was completed. I wanted to honor the committee's request to have Commissioner Van Pernis present at the April meetings so that they could evaluate his commitment to moderate his behavior. So we worked with the Planning Department and the Corporation Counsel Office to get the training that was suggested in all of those areas. The training was provided by Deputy Corp. Counsel, J Yoshimoto. I believe it was done remotely. I think telephone with a PowerPoint that was emailed over. So Page 20 PC-7 May 4,2021 they were able to go through all of that and complete the training that we requested prior to the April 151h meeting. MS. DAVID: Thank you. The written apology, I know you mentioned he sent an email, but were you actually requesting that an official letter addressed to the commission be brought forward at your meeting? MR. VITOUSEK: I didn't specify in the letter, you know, I termed it as a written apology. And he stated that he had sent a written apology to the committee, and that he intended to apologize again. It wasn't the apology that I had hoped for, but I didn't really communicate that so I felt like it was important to allow him to continue into the meeting so that you would have the opportunity to evaluate his performance. MS. DAVID: I see, okay. And then, as it stands in your letter to him that you will provide the warnings necessary and if there's further disruption, that you would exercise your protocols that you would have him removed. Are you still willing to do that, follow that process outlined in your letter with respect to Mr. Van Pernis? MR. VITOUSEK: Of course I intend to follow that protocol for any commissioner, any applicant, any member of the public who intends to disrupt any commission meetings. MS. DAVID: Thank you for that because I appreciate your commitment to do so as Chair. And those requests for ethics decisions, the opinions have not been received by you as yet? MR. VITOUSEK: We have not gotten opinions yet. Correct. MS. DAVID: Okay, great. Well, thank you for clarifying that. I think this is all about process and procedures. And I really appreciate the fact that you stand fast to your position as Commission Chair to take a handle on these meetings, and I'm glad that you have taken the position that you are really, willing and able to have anyone aside from Mr. Van Pernis removed if their professional conduct is not up to standard. So I thank you for that. Mr. Van Pernis, I just have a few questions for you. With regard to the formal written apology, would you be willing to do a written apology and address the commission appropriately as has been requested? MR. VAN PERNIS: My response is, I would certainly be willing to, but a written apology should be designated who it's to. Page 21 PC-7 May 4,2021 MS. DAVID: I think it should be Planning Commission Chair and the body because that's what I'm reading in Chair's request to you. MR. VAN PERNIS: I apologized verbally to them and in testimony before this committee. But I'd certainly be willing to write a written apology too. MS. DAVID: Thank you. MR. VAN PERNIS: And if anybody wants to say what particular event I participated in, I should apologize for, I will do so. MS. DAVID: I think, yes, I think it's very clear. I think it's very clear that the apology would be on a professional basis and relating to conduct and respect for fellow commissioners and the public. And it has nothing to do with your knowledge of the issues, because I know you've been here for just as long as I have, and you're very well-versed in the issues surrounding the Leeward Coast. And that I appreciate because there're not many people we can find in this day and age that has historical knowledge about what has transpired in this community in the last 50 years, which I think you are very well-versed in. And that to me is worth a lot. And so the only thing I hear now—is the fact that your delivery and your responses is basically drawing attention just leave it there, it's drawing attention. And so, I really would like to see that that's addressed, and that you understand that Chair Vitousek will exercise his authority and reprimand anyone for situations such as this. And I just wanted to make sure that you understood that because I appreciate a lot of your knowledge, like I said. MR. VAN PERNIS: If I can respond? MS. DAVID: Yes. MR. VAN PERNIS: First of all, I'll certainly file a written apology and deliver it to Mr. Vitousek for this distribution, if that's appropriate. Secondly, I appreciate your comments about my knowledge. With all due respect, I don't think it could be duplicated by anyone who is willing to serve on the Planning Commission, or anyone that the Mayor would appoint. And thirdly, as I've said before many times before today, I felt my questioning and attitude was appropriate. I'll modify further, but I want to emphasize that the purpose of the commission is to ask questions. And they're not always easy questions. They need to be made. Page 22 PC-7 May 4,2021 MS. DAVID: I understand that. Yes,totally. And so, I just wanted to get a personal commitment and response from you based on what I'm reading from the Chair's letter to you. And a commitment that an understanding MR. VAN PERNIS: Well I want to serve and I will make the commitment. MS. DAVID: Okay, because this has, I think it's what Council Member Heather Kimball had said earlier, this has not been an easy issue that has been brought before this body. Not to mention it's the first of its kind. And I do not feel that this should be taken lightly. And that's why for me I need to understand that we're on the same level of understanding on what I perceive your responsibilities of professionalism should be as well as all of ours. And so, given that, Chair, I will yield for now. And thank you, Mr. Van Pernis for being available. CHR KIERKIEWICZ: Thank you, Chair David. Ms. Villegas. MS. VILLEGAS: Thank you, Chair. Aloha, Mr. Van Pernis, thank you for being here today and for enduring this intense process. I admire your continued commitment to our community and to the Leeward Planning Commission. And to serving even under such intense scrutiny. I feel a responsibility to share the comments from my constituents and people that have reached out to me and their feelings about the circumstances we find ourselves in. Many have questioned the timing of this request for your removal and how it corresponds from what some people reflect is all too coincidentally, as you're having pointed out a conflict of interest in our Planning Director Zendo Kern's sign-off on a development. That calls into question for me, my responsibility to represent my constituents. And they're pointing out and recognizing and having concerns about a term has been used by our Administration, retribution. And I feel I would be remiss to not represent those concerns and have members of Administration here now, because people are calling that into question. With regards to—it seems to be, you know, we kind of put this on hold and you had the chance to have participated in another Leeward Planning Commission meeting, which I believe, we were in chambers that day. So I know my staff was keeping an eye on what was going on. And as we had breaks, I was continually told that you were doing a great job and that the exceptions that were being made to help facilitate based on your circumstances were, in fact, making it much easier for the members of the commission, and applicants, and for people's understanding of you. I found it really unfortunate that by the end of the day, something happened with the Hickey's case. But I feel I once again would be remiss to notI feel like you've been painted out to be somebody that caused her such emotional distress. And I have to share that I received a call from her the week prior, and the basis Page 23 PC-7 May 4,2021 of that call was actually claiming that there was potential corruption in the Planning Department, and she was being penalized for having had Mr. Kern be her original representative, and that perhaps she was then being penalized to make a point that she wasn't getting special treatment. Anyway, the conversation went around and around in many different ways. And I listened and was as attentive and gracious, as I would be while letting her know that I had no direct authority on what was going to happen. She was very frustrated. She cried when talking to me and we had a very calm, gracious conversation in which I in no way asked questions or put her on the spot. I have concerns with people though coming for Special Use Permits on State Ag land and making claims that they're then going to lose their farm, when it's my understanding that the Hickeys did very well for themselves. Their prior state of residence and came here and purchased that farm, and don't have other sources of employment. And so to me it was surprising that somebody would assume that they could buy 20 acres, part of it in coffee. Just the assumption that you could make a good living off of that. I mean we have members of our Council who have coffee land and work other jobs. So my concern in the case with the Hickeys, is that there was already a prior misconception on the property owners that somehow they were being penalized, and something was being taken from them, when most of us who are from the Island and know people that own Ag land, it's very rare that you can make a substantial living on 20 acres. And when only a portion of it is in coffee. So I can see the wedding venue being that other option to make a sizable living, mind youChair, if I could just have a little bit of latitude, thank you. But with current circumstances and agricultural lands being even more precious now, and with the neighbors in the area and access roads and whatnot, I think that it was a wise decision, both from the Deputy Planning Director, who made the decision on this case, because the Planning Director the Hickeys had prior been his clients. But I think the decision was a wise one on both accounts, but I caution anyone on this Council taking the words that the Hickeys were somehow that she was abused or made to feel, you know, attacked and aggressive against. Because in my own personal circumstance and not under those,the emotions were there and this feeling of pleading and just desperation. And so, I feel for that but at the same time to vilify Mr. Van Pernis based on those circumstances, I don't think it's fair. I also seen some irony and share Mr. Kaneali`i pointing out that here on our Council, members of the Council have caused people to cry and have been, you Page 24 PC-7 May 4,2021 know, intense with the way that we've interacted. So vilifying you for that, I don't think it's appropriate. It's odd also, this term of treating people with aloha and our standard of conduct. I caution us to throw that around in a way that we're then requiring somebody in a legal setting on a commission like this. I just think that too often we don't just get to pick when, where, and how we want to utilize that term and have it applied for some and not for others. And so, I caution us on making statements. I mean, we ourselves have been accused now of not operating with aloha and as if it's some kind of an ethical violation. And I caution those kinds of statements, because it doesn't seem—it's not illegal, but it doesn't seem wise. Mr. Van Pernis, you know, you've got some challenges in your communication and in your delivery. And, but, myself being raised here on the west side haveI give you huge kudos and credit for the amazing work that you've done. And I've watched the meetings and your questions aren't always easy, and I've seen you shut down instead of people recognizing why you asked a number of times about fire hydrants near the Hickey residence. And you were chastised for asking questions that it was implied that the person who was supposed to answer them didn't need to know it, but the purpose of the question was that there aren't any there. And that made the statements to me, but from a safety standpoint. So your delivery can be challenging, but I don't think that one meeting after our last big Council Meeting to talk about this, I feel that you have been given an opportunity and while not perfect, I feel like it is improving, I will not be supporting your removal. I think that the things that have all been brought up against you again today, as you said were from prior, and when it comes to the one interaction with the Hickeys at the end of the last meeting, I would encourage you to potentially apologize to them for any misconceived. Not because you did it on purpose but because that was their feeling. Then that may be a way of calming those waters a little bit. But I'm just here today speaking from the heart from the things that I am hearing and my job to represent the constituents in our district, which in District 7,the majority of those that I have heard of are very, very supportive of your continuing on the Leeward Planning Commission because there are trust issues and concerns about a pattern that puts us in jeopardy of not having the most qualified, educated, experienced, and critical thinkers as somebody like you, regardless of some of the challenges that come with your tenacity. So thank you for being here. Thank you everyone. Thank you for your latitude, I yield. CHR KIERKIEWICZ: Thank you, Ms. Villegas. Mr. Van Pernis, could you mute your mic while you're not speaking? We're getting some feedback for folks that are streaming. Page 25 PC-7 May 4,2021 MR. VAN PERNIS: Can I respond to that? CHR KIERKIEWICZ: Very briefly, go ahead. MR. VAN PERNIS: First of all, Council Member Villegas, thank you for the compliments and I hope to work my way to doing good work for the Planning Commission over time. And I realize that based on what you're saying, I'll take that to heart as well. But I want to point out that,judge me from Mr. Yoshimoto's instructions forward. Look at the April 151h transcript. All the other stuff was dealt with before. And in regards to the Hickey application, it was my motion to make a negative recommendation, as the Planning Director recommended. And that passed four to two. And that's what Hickey was objecting to. Her transcript or her recitation of what I did is not accurate. For instance I said the coffee and other farming and I also pointed out that she volunteered she was lawyer. And I assumed that that was another source of income for them. My knowledge of the Mitchell's was only through the fact that I lived here for 50 years. And this Waiono Meadows is prime agricultural land. I'm familiar with it physically, I've been there. But you know, her statements that agricultural land should stay agricultural except for her was a problem. CHR KIERKIEWICZ: Thank you, Mr. Van Pernis. Mr. Richards, I see that you have your light on, but I just want to check in with Mr. Inaba and Mr. Chung to see if you have any comments at this time. Okay, no? Mr. Chung, you have the floor. MR. CHUNG: Yeah, thank you. You know, I voted for Mr. Van Pernis when he first came up for confirmation. And even when this matter came up to the committee the first go around, I suggested that we defer this matter to give, you know, him some time to see if he could change his style. Because his really is a matter of style, I think, it's not substance. I just have some questions. Anyone can answer this, Zendo or Jeff or Corp. Counsel. At the Planning Commission level, are there time limits for commission members to speak? Because here at the Council level, we have, I think, five minutes or whatever it is, and we got three cracks to do that. Is there such a requirement or a rule at the Planning Commission level? MR. KERN: Mr. Chung, there are no set rules. We generally do have the three-minute rule for testifiers, and then it would be at the Chair's discretion. MR. CHUNG: No, for commissioners. Page 26 PC-7 May 4,2021 MR. KERN: It would be at the Chair's discretion on how they wanted to time themselves. MR. CHUNG: Yeah, maybe you guys better consider putting something like that in place, okay. And Mayor Roth, if you could just come up again. And this time,just summarize the main points that you are advancing in support of your request to have Mr. Van Pernis removed. Very succinctly so that I can understand exactly, you know, where you're coming from. (Note: At this time, Mayor Mitchell D. Roth came forward to address the members of the Committee.) MAYOR ROTH: Thank you, Mr. Chung. The problem is the way he is treating people. Not the questions so much. It's not manner of attacks, the rude treatment. And for Ms. Hickey, if you watch the video, he's throwing words in her mouth accusing her of things that she's not saying. And you know, that is rampant throughout the videos that we sent. It's not the questions so much, it's the way people are being treated and accused. That is the problem. MR. CHUNG: Okay, thank you. Mr. Kaneali`i-Kleinfelder asked the question, whether any complaints—you can go back. Thanks Mayor. MAYOR ROTH: I think have another meeting I have to go to. MR. CHUNG: Okay. About whether complaints have been filed. You know, I would personally feel more comfortable in voting in favor of a removal, had there been some kind of decision from the Ethics Boards, or something like that. We are not the arbiters of ethics, right? We have our own personal feelings as to what constitutes ethical behavior. But what kind of concerns me too, though, Mr. Van Pernis, is when Ms. Kimball stated her causes of concern being decorum or lack thereof, and then not adhering to parliamentary procedure and Robert's Rules of Order. And then you responded by talking about ethics, which were totally off from what she had talked about. Not relevant at all. That concerns me. And that's why I'm thinking a lot of what you're doing at the commission level—and you know, I haven't been there, I haven't listened to you, I know you're a smart man—but they may be relevant in your mind, but you have to follow the orders of the Chair. It is vitally important for that to happen. I think we made that very clear the last time. I don't want to talk down to you or anything like that because you are an esteemed member of the legal profession. MR. VAN PERNIS: Can I respond? MR. CHUNG: No. Page 27 PC-7 May 4,2021 CHR KIERKIEWICZ: Please turn off your mic at this time, Mr. Van Pernis. Please turn it off, we're getting feedback noise from viewers. Thank you. MR. CHUNG: Because I'm talking now, okay. So, unlike members of the Council who are elected by the body politic. Commissioners derive their authority basically from their appointment and their confirmation. It's our good name that's on the line whenever we support someone. I'm thinking that what you're suffering from is trying to become—and you know, you are a lawyer, but at some point, you have to learn to adapt to different situations. You are no longer a litigator. You have to look at yourself more as a judge. And you have to conduct yourself that way. Now, I disagree with, you know, having to conduct yourself with aloha. I don't do that. I don't follow that kind of standard. You know, I am what I am. I'll just say whatever I feel. But, you know, if you're a smart man you've got to adapt. You see what's happening. You see the criticism that's being thrown toward by your own colleagues. It's creating a very bad dynamic on the Planning Commission. And maybeI'm hoping that you're not reveling in this thing. I really do that you're not, because that would be unfortunate. You have to be a part of that thing. I think one off the red herrings that we hear quite often is this thing about asking the hard questions. In fact, there's so many red herrings in all of this it's not even funny. Yeah, one of it is, special accommodations, disability. I already said the last time, I don't think you have a disability. I understand you perfectly. But now they have to make special accommodations for you. Another red herring would be the aloha aspect. I don't think that has anything to do with your ability to perform your duties in a good manner. The other red herring is this asking the hard questions. It almost becomes like this calling card where people say, well, "We ask the hard questions." Almost implying that they're the only guys who ask hard questions. We all are here to make tough decisions and to ask probing questions. Only because we say we ask hard questions doesn't mean we're being—you know, we are actually more responsible than others. You have to be more efficient in the way that you exercise your duties. That's my advice to you, if it gets to that point. I'm not looking for any kind of response. But that's just my thoughts. That's my advice to you. I don't know if you want to take them to heart, but it's just my advice. Thank you. Page 28 PC-7 May 4,2021 CHR KIERKIEWICZ: Thank you, Mr. Chung. Mr. Richards. MR. RICHARDS: Thank you, Chair. And Mr. Van Pernis,just some quick questions of clarification. And these are borrowing from you, yes or no questions. I think I heard you say, Nancy Carr Smith, since she's no longer Chair, that her opinion is not important anymore. Did you say that? MR. VAN PERNIS: She has her opinions and I have mine. MR. RICHARDS: Sir, I just asked the question, yes or no? Her opinion as far as her testimony supporting your removal, did you say that since she's no longer on the commission, her opinion is not important, yes or no? MR. VAN PERNIS: No, I didn't say that at all. MR. RICHARDS: Okay, thank you. And then next question is, is her opinion important, yes or no? MR. VAN PERNIS: Everyone's opinion on the commission is important. MR. RICHARDS: And so, former Chair Smith's opinion is important and former Chair Keith Unger's opinion is important as well, is that correct? MR. VAN PERNIS: Oh, Mr. Unger was MR. RICHARDS: Yes or no,just simple? MR. VAN PERNIS: I don't think it can be answered yes or no. Mr. Unger was chairman when I was a member for only one meeting, the very first meeting. MR. RICHARDS: That's fine. But is their opinion important, yes or no? MR. VAN PERNIS: Well, his opinion is important but all MR. RICHARDS: Okay, thank you. Chair, I yield. CHR KIERKIEWICZ: Thank you, Mr. Richards. Mr. Van Pernis, could you turn your mic off please? Thank you. Mr. Inaba. MR. INABA: Aloha. Mahalo, Mr. Van Pernis for being here. And you are right, everyone's opinion is valid and is important in these kinds of proceedings. I do feel that you bring a wealth of knowledge and experience to the commission, something that would be very hard to replace. In watching the last commission meeting, I do feel that you provided, you know, a good line of Page 29 PC-7 May 4,2021 questioning for the applicants as you usually do. And as everyone else has stated, it's oftentimes the delivery and how you go about asking those questions. I did watch that specific applicant, the Hickey applicant's discussion, and I didn't feel that you were rude or disrespectful. How people react to whether their application is going to be approved or not is not our concern as a Council and not your concern as a commissioner. It's to make sure that we're following the law and we're asking the relevant and important questions to know how projects will affect our community. So I have to echo a lot, or I have to agree a lot with what Council Member Chung said as it relates to your behavior, and changing perhaps your perspective about your role as a commissioner. And I'll leave it at that. Thank you, Chair, I yield. CHR KIERKIEWICZ: Thank you, Mr. Inaba. Anyone else? Mr. Chung. MR. CHUNG: Yeah, sorry, one more point. I don't think I said it the first time. But you know,there were some suggestions the first time when this matter came UP, that you were creating a hostile work environment. I just want to state for the record from my perspective, I have no credible evidence that supports that. Because if there was, they would have no choice but to remove you. You understand that, right? But I have not seen any evidence of that. Thank you. CHR KIERKIEWICZ: Thank you, Mr. Chung. Anyone else? Okay. I have a question for each of the commissioners if they're still on. And I'll start with Commissioner Vitousek. MR. VITOUSEK: Yes. CHR KIERKIEWICZ: Chair Vitousek, I know that you worked very diligently to ensure a number of accommodations were made for Commissioner Van Pernis. And with everything that's been provided, do you think his behavior was sufficient enough for him to continue serving in this capacity with all of the accommodations that have been made? MR. VITOUSEK: Personally no. I don't believe that he's capable of maintaining moderate behavior. I believe that if he's going to engage in a personal attack or back-and-forth on an applicant during the meeting that everybody's watching to see whether or not he's going moderate his behavior, then in two meetings from now if he's still there and nobody's watching, it's just going to be the same pattern of behavior that he's displayed the entire time. And I just don't believe that he will change his behavior. Page 30 PC-7 May 4,2021 CHR KIERKIEWICZ: Okay, thank you. So your recommendation is that we vote to remove him? MR. VITOUSEK: Yes, it would be. I think we've done everything that we can to accommodate the requests that were made informally, in providing training, in providing any potential ADA (Americans with Disability Act) accommodations, to create an environment where he can be successful. And even in that environment, the back-and-forth is so personal, and so unnecessarily hurtful, that I just don't believe that he can change. And that's no one's fault but his own. CHR KIERKIEWICZ: Thank you. Commissioner Carr Smith, I do want your opinion as well. A number of accommodations have been made for Commissioner Van Pernis. You know, having said that, based on the last meeting, has he changed? Has he moderated his behavior? (Note: At this time, Leeward Planning Commissioner Nancy Carr Smith came forward to address the members of the Committee.) MS. CARR SMITH: I don't believe so. I know that every effort was made for him to be able to write out his questions and that was great. We tried it but it wasn't really saving any time or didn't appear to be any benefit, because he still had the opportunity to ask follow-up questions. And he still was involved in other conversations and discussion and motions. So I really don't see how that was of any benefit at all. And I suppose if that was the only thing and it didn't have to do with behavior or the way that people were treated, then that would something that could still be looked at. But I'm with Mike that watching for the last year plus, I don't see how any change is going to occur. I mean he doesn't even acknowledge that there's a problem. So, you know,the commissioners have dealt with this and brought to the attention of you all, and he wants us to think that it's all going to be different moving forward and that what's already happened doesn't matter and it's just not true. CHR KIERKIEWICZ: Thank you, commissioner. And finally, if Ms. DeFranco, Commissioner DeFranco if you're still on,just would like your sense of, you know, accommodations being made for Commissioner Van Pernisif you think that those were reasonable, and if he has improved in the last commission meeting. (Note: At this time, Leeward Planning Commissioner Barbara DeFranco came forward to address the members of the Committee.) Page 31 PC-7 May 4,2021 MS. DEFRANCO: Can you hear me? CHR KIERKIEWICZ: Yes, we can hear you. MS. DEFRANCO: Okay. No, in fact I didn't even know he had the training before our last meeting. And so I came to the meeting not knowing that he had extra training, what I did notice is the accommodations for the written questions, and I have to agree with Nancy, that you know, that didn't seem to make a big difference either. And I felt like maybe, you know, again, it was other people asking his questions, which some of them felt redundant and repetitive. And as the meeting kept going, it just kept deteriorating to where we were before. And in a way because Mr. Van Pernis is a lawyer, is very smart, holds all of this knowledge, that maybe we hold him to a high standard of understanding how to behave. But for him to be demeaning to everybody in that meeting, not only to the fellow commissioners, as if none of the other commissioners know the roads in Kona, or the culverts, or where to pull over, or how traffic is, and demeaning to the applicants themselves, not just the Hickeys, to both of their applicants. Asking questions that I felt were questions that of course they're not going to know the answer to,to put them on the defensive. And what it creates is it creates a whole environment that is not moving forward. It doesn't help the other commissioners sitting there trying to listen and make decisions to have to deal with the way that Mr. Van Pernis presents himself. His behavior is not suited to be on the commission. And I never received an apology from him of any kind. Anyway, I wish him the very best. I hopeI know this is a hard decision for all of you, but I think you need to make the hard decision. And I hope that he is removed. Thank you. CHR KIERKIEWICZ: Thank you, Ms. DeFranco. Mr. Chung. MR. CHUNG: Yeah, well you know, being a lawyer and behaving well sometimes cannot be used in the same sentence, right? We all know that. But, Mr. Van Pernis do you acknowledge that some of your behavior has been kind of distracting; detrimental to the body, or do you know feel that way? Or have you come to see that it may be somewhat bad? And very briefly. MR. VAN PERNIS: My response is, all of this testimony about my behavior MR. CHUNG: I'm not talking about your behavior. I'm just asking you, have you come to the realization that perhaps your approach needs to be tempered pretty substantially? Page 32 PC-7 May 4,2021 MR. VAN PERNIS: Yes. My approach, everything is under my control, and I can control it in a manner that is productive for all concerned. I don't think the commissioners'job is to be polite. But doesn't mean you can't be civil in all respects. Asking follow-up questions when answers aren't given, I think that's appropriate. I mean no disrespect and I will try to make that clear to everybody. But I ask you again to look at the transcripts of the last hearing and you'll see that my behavior is modified and it could be modified further. And I will do so because I want to serve. I don't think my role is to be liked, as I said, but I can certainly be civil in every respect. MR. CHUNG: Well let me put it this way then, are you willing to follow the instructions of the Chair? MR. VAN PERNIS: Excuse me, I'm willing to further modify my behavior much more towards what these commissioners, or these—Nancy Carr Smith and Mr. Vitousek is talking about my prior activities, not the activity in the last hearing. But I try to follow Chair Vitousek's instructions in every case and I will in the future. And I will modify my behavior. MR. CHUNG: That's not what I asked. I asked, will you follow? MR. VAN PERNIS: I will. MR. CHUNG: I will? MR. VAN PERNIS: I will without hesitation. MR. CHUNG: Yeah. So if he says, "Ask and answered, move on." You will move on to a different subject matter? MR. VAN PERNIS: That's what I did in the last hearing. If he says, "Don't follow up or don't go into this area." MR. CHUNG: If they tell you to stop talking, you will stop talking? MR. VAN PERNIS: I'll stop talking. First I'll go on to another subject to begin (inaudible). But I will follow Chairman Vitousek's instructions in every case. I voted for him for Chairman. MR. CHUNG: What was that? What was that again? What was your last sentence? MR. VAN PERNIS: I voted for him for Chairman. Page 33 PC-7 May 4,2021 MR. CHUNG: Okay well, that's neither here or there. MR. VAN PERNIS: I respect him and think he's a good chairman, and I will try even harder. I thought I was following his instructions this last hearing, but I will try even harder to follow. MR. CHUNG: Will you try to be more economical in asking questions? MR. VAN PERNIS: Excuse me? MR. CHUNG: Will you try to be more efficient or economical in your question asking so that it doesn't get drawn out? MR. VAN PERNIS: Yes. (Inaudible) questioning is redundant. It's only when I don't get an answer that I ask again. MR. CHUNG: Because look,the matter is—look, you don't have to be lawyers to be able to ask a thousand questions, right? Anybody can ask a thousand questions. But if only three questions suffice, why not do it? So you've made some pledges to me maybe and to body today. MR. VAN PERNIS: I will be a respectful commissioner and not a lawyer. MR. CHUNG: This is what I would suggest, I'm going to make a motion to defer this matter for about three months. Well, you know, that's my suggestion. I'm going to make that motion. If nobody seconds it, that's fine. Motion to Postpone: Mr. Chung moved to postpone Comm. 183. Seconded by Mr. Kaneali`i-Kleinfelder. CHR KIERKIEWICZ: Thank you,just hold on that motion real quick. We have a couple other folks that want to say something. Ms. Kimball. MS. KIMBALL: I'll wait till the—go ahead and make the motion, and I'll speak to the motion, that's fine. CHR KIERKIEWICZ: Okay. Mr. Chung has motioned to postpone any action on removal of Mr. Van Pernis from the Leeward Planning Commission for three months. Mr. Clerk, what meeting would we be at? August what? MR. HENRICKS: August 3, 2021. CHR KIERKIEWICZ: Okay, till the August 3rd meeting of the Planning Committee. Any discussion on the motion to postpone? Ms. Kimball. Page 34 PC-7 May 4,2021 MS. KIMBALL: Thank you, Chair. You know, I appreciate Council Member Chung, what you were trying to do, getting commitments from Mr. Van Pernis for changes and behavior. The only thing I'll say about that is we got those same commitments last time. And perhaps I'm impatient, I'll acknowledge that, but I don't think the clock started at our last meeting. I actually think the clock started when Mr. Van Pernis began his term as a commissioner. And one of the things that the Administration failed to provide us with that they have since is all the concrete evidence of real efforts to communicate to Mr. Van Pernis that the conduct was unacceptable in the meetings. And so, personally, my perspective is that we made it very clear—you know, I certainly said coming to us, asking for removal without any efforts to solve the problem was the nuclear option. One of the things that has made clear was that there were previous efforts, those are documented now. In addition, we as a body made it very clear that, you know, we expected a change. And I do acknowledge that effort was made, but still it's about the decorum and it's about the respect, and it's about the principles of civil engagement. And I appreciate what my colleagues have said about the fact that our body, sometimes is hard on people. But if we're not being civil either, if we're not following procedure, that does not justify someone else doing so, right? We should be calling each other out if we're not following Robert's Rules; if we're not maintaining order and decorum. So, you know, if I had been in your shoes, Mr. Van Pernis, given the strong warning from this body, I would have been exceedingly good and on my best behavior in my next opportunity, to show that I had heard. You made the same commitments to us last time. I understand that Council Member Inaba did not feel like the comments or the behavior was out of order, but I did. And so, we'll have a difference on that, but we can agree to disagree, civilly. Yeah, I think you were given the opportunity and did not rise to the occasion. Thank you, Chair. CHR KIERKIEWICZ: Thank you, Ms. Kimball. Mr. Richards. MR. RICHARDS: I won't repeat what Ms. Kimball just said, but she's to the point on that. And we are discussing on the deferment. We've already had this conversation, so I support what Ms. Kimball says, and I do not support a deferment. I yield. CHR KIERKIEWICZ: Thank you. Anyone else? I also do not support deferring this matter any longer. We're here to make tough decisions and this one is extremely difficult. Page 35 PC-7 May 4,2021 You're very knowledgeable Commissioner Van Pernis. There's no question about it. Reading through some of the transcripts, I agree with you, there's a lot of tough questions that you do ask that I do appreciate, but it's not what you're asking a lot of the time, it's how you're asking it. And we've had four commissioners come before us pleading for our assistance. They've tried from the very first meeting that you served on the Leeward Planning Commission to get you to change your behavior, and you've consistently shown that you're not able to do so. You know, a number of us had concerns about you serving in that capacity at your initial nomination. And you know, unfortunately those premonitions have played out and they've really exacerbated over a time, and so I'm giving a lot of weight to the commissioners that have come forward. It's very difficult for them to do that, but they have come forward pleading for us to do something about this. I believe that reasonable accommodations have been made, and you've had every opportunity to improve your behavior, but unfortunately you've failed to do so. I feel every tool, every modality has been exhausted, and we keep trying to get the square peg to fit in a round hole. And it's just not a good fit. And that was made very evident at the last Leeward Planning Commission meeting. You know, at Planning Committee we said one more chance. We were pretty clear about that. And at the commission meeting, six hours, folks were watching it, over 260 views on that particular video. There's a typical watch rating of about 20 or so for the other commission meetings. So high viewership. And to have folks that have been supportive of you like Cory Harden, like Chuck Flaherty watching that, disturbed about the behavior, is very telling. I'm not sure if everybody on this body had the chance to watch but I highly encourage you to do so. You know, Commissioner Van Pernis, because of your profession I hold you to a higher standard. You know, to understand that there is a degree of decorum and professionalism that you need to uphold as a commissioner, but I just don't think you are meeting that standard. And you've had every single opportunity to exercise a bit more control, and you have failed to do that. And so I don't think giving you any more time, we are going to see any more improvements in your behavior. So, I'm sorry, but I just cannot support deferring, making a decision on this matter at this time. Anyone else? Ms. Lee Loy. Page 36 PC-7 May 4,2021 MS. LEE LOY: Thank you, Chair. And yeah,just thinking a lot. Actually, I'm not going to be supporting the deferral either. And I'm actually more concerned and more alarmed about what Commissioner or Chair Vitousek said about forthcoming ethics complaints. And I really am generally concerned that this behavior—and again, it's a behavior—is painting the County into a corner of liability as it relates to unethical questioning by a particular commissioner. And that's where I squarely am standing. I refuse to put the County at risk for bad behavior by any commissioner or any employee of the County. And I think that's the line that I will stand by. Whether it's disrespectful behavior, whether it's misinformation, hard questioning, whatever you call it. When you start putting the County at risk, I have a huge problem with that. And I think it is a duty of us as elected officials to be incredibly mindful of that. So I'm not going to be supporting the deferral. And I will be continuing to support the Mayor's request to remove a particular individual solely based on the liabilities that may be forthcoming. Because if we think this is a tough decision, we may have tougher decisions that have dollar attachments to it because we couldn't make a tough decision right now. Those are my thoughts, Chair. I yield. CHR KIERKIEWICZ: Thank you, Ms. Lee Loy. Anyone else? Vote on Motion The motion to postpone Comm. 183 to August 3, 2021, to Postpone: was carried by the following roll call vote. (Approved) Ayes: Committee Members Chung, David, Inaba, Kaneali`i-Kleinfelder, and Villegas –5. Noes: Committee Members Kimball, Lee Loy, Richards, and Chair Kierkiewicz–4. Absent: None. Excused: None. CHR KIERKIEWICZ: Thank you. This matter is postponed to our August 3rd 2021 Planning Committee meeting. ORDER OF The Chair directed the Committee to proceed to the next order of business, Order RESOLUTIONS: of Resolutions. (There were none.) Page 37 PC-7 May 4,2021 BILLS FOR The Chair directed the Committee to proceed to the next order of business, ORDINANCES: Bills for Ordinances. (There were none.) CHR. KIERKIEWICZ: Can I have a motion to adjourn? ADJOURN- There being no further business, at 12:21 p.m., Mr. Inaba moved to adjourn the MENT: meeting. Seconded by Ms. Lee Loy and carried by the following voice vote: Ayes: Committee Members Chung, David, Inaba, Kaneali`i-Kleinfelder, Kimball, Lee Loy, Richards, Villegas, and Chair Kierkiewicz—9. Noes: None. Absent: None. Excused: None. CHR. KIERKIEWICZ: Planning Committee is adjourned. Thank you. Approved: amt-e,2 (Vd7- f Ms. Ashley L. Kierkiewicz, Chair (Date) Planning Committee AK/dt Page 38