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HomeMy WebLinkAboutCOM 0183.047 2020-2022 April 29, 2021 Aloha Council Members, .. i I humbly ask that you take my experience to heart and remove Commissioner Van Pernis from the Leeward Planning Commission. I was an applicant before the LPC September 21, 2020 and again last month on 4/15/21, during his "probationary period," for a Special Use Permit for a wedding venue space on my 20 acre farm in Holualoa. The background is that we applied for a Special Use Permit to allow us to host weddings in a new pavilion-type building on approximately '/4 acre of our 20 acre farm. We farm 8 acres of our farm in coffee (which is all we have been able to afford to plant) and farm the remaining 10 usable acres as animal pastures, gardens and greenhouses. We have tried everything to "make it" as coffee farmers and found that hosting events, in addition to farming coffee, was the only way to make ends meet. We spent over $50,000 (nearly all of our savings) and 18 months applying for and working on our SUP applications. If we were denied, we knew we would have to end our business, and that is what happened -we were denied at the 4/15 hearing and we have now leased out our coffee orchard and our label because we cannot afford to farm anymore. As you can probably imagine, it is already hard to go in front of a commission of community members who have the power to make or break a business you have spent 8 years painstakingly and lovingly building and plead for them to come down in your favor. But having Commissioner Van Pernis as one of those Commissioners made the process not just the regular amount of difficult, but demeaning and humiliating. During our 9/21 hearing he badgered us, our representative, and the testifiers who came out in support of our permit. He was rude, asked irrelevant questions and had to be reprimanded multiple times by Chair Carr-Smith. But that was nothing in comparison to his behavior at our April hearing. At our 4/15 hearing, he stated outright that if we were farming properly, then we would not need the money from our proposed wedding venue. As for as I know, Mark Van Pernis is not a farmer, nor has he ever been. But even if he were, that is, on its face, insulting to farmers that have risked all of their savings to make a go of sustainable agriculture. He stated that he is there to represent "West Hawaii" and not us, despite Comm. No, Ref. To: PJrG Ref. Date MAY 0 4 2021 the fact that we are also citizens of West Hawaii and were applying for a permit that we are allowed and encouraged to apply for to do a reasonable and unusual use on our Agricultural land. His comments further insinuated that, in his view,just by applying, we had done something wrong or were asking for special treatment. The reality is that we followed the rules as written and went through an extremely lengthy and expensive process in order to comply with all County rules and deserve respect from all Planning Commissioners even in a denial. He blamed us for receiving documents late and said that for that reason our application should be denied and we should reapply. Documents coming late were, in part, our fault, as we were submitting additional information in support of our application up until the final hour, but that is by no means a reason to deny our application. If anything, that would support a deferral of our application for one month to give the Commissioners time to read all of the additional information. He also admits that he did not even read all of the documentation in our case. Additionally, his suggestion that we just reapply was extremely upsetting because once a SUP application is denied, the applicant cannot reapply for five years. He either knew that and was being intentionally spiteful, or he doesn't know that and is unfamiliar with the administrative code for Special Permits. Seeing that he is a Planning Commissioner, I am not sure which reading is worse. Maybe the most egregious thing of all, Commissioner Van Pernis' discussion of our application unearthed that he had either an undisclosed conflict of interest or had violated the Sunshine Law. During our hearing, he asserted that Wendy Mitchell and Tom (Buckner) have jobs and that Wendy is a social worker and that they farm their land on the side. Those are our neighbors who generated a petition in opposition to our permit application and testified at the hearing. Their jobs and how they farm (which they do not) were not in the record at this hearing or at our first hearing. The only way that Commissioner Van Pernis could have known that about them is if he knows them personally or if he talked to them (or others) about this application outside of the hearing - a violation of the Hawaii County Sunshine Law. I do not know how he knows Wendy Mitchell and Tom Bucker, but his comments implied that they have an undisclosed personal relationship. Had he disclosed that relationship before the hearing, we would have requested that he abstain from voting on our application. I want to be clear that we are not scorned applicants who did not get their permit and are now trying to take it out on Commissioner Van Pernis. Even before our hearing, when his removal came up at your committee last month, I had wanted to testify to my experience with Commissioner Van Pernis at our first hearing, but I was afraid of retaliation at our April hearing and was advised not to testify by my representation. Now I see that there is nothing that would have made him vote in favor of our application anyway, as he had clearly made up his mind before our hearing, and I should have spoken up earlier. I have also made a formal petition to the Board of Ethics asking for Commissioner Van Pernis's removal. That petition is attached here. I have not made complaints against any other commissioners, even those who voted to deny our application or those with whom I personally disagree. Only one commissioner's comments rose to the level of so demeaning that I broke down and sobbed at a televised formal hearing. Applicants before a Hawaii County body should not ever be subjected to that level of humiliation from a person of power. If you have any question about his fitness to serve as a Commissioner after this testimony, I encourage you to watch our hearing starting at hour 5, minute 30, and witness his comments for yourself. I watched your last hearing and saw that there were many ADA concerns about Commissioner Van Pernis' ability to communicate and assumptions that his speaking voice or cadence was causing the complaints. I hope that my testimony has clarified that I have no issue with Commissioner Van Pernis' speaking voice. It is the things he says rather than how he says them that are the problem. Furthermore, I know that his position on the LPC is seen as a somewhat political one - he was appointed by the last mayor and Commissioner Van Pernis is staunchly "anti-development." With a new Mayor and new Planning Director, some Council Members may feel his voice in opposition to large developers in West Hawaii is important to your constituents and is valuable enough that it is worth the trade-off of dealing with his "prickly" demeanor. But as a constituent of yours who has gone before the LPC, I implore you to reconsider that calculus. He is not just opposed to big developers and prickly to them. He is opposed to any development in West Hawaii, even 'l4 acre on a small farm - and he said so multiple times at our hearing - and he is far worse than "prickly." He is not using his position to represent the values of West Hawaii - our community here has true aloha and would never treat a small farmer trying to make a living the way he treated us. Not for me, as our business is closing up and we are moving on, but for all of the applicants who will come before the LPC after me, I am pleading with you to make the honorable decision and remove Mark Van Pernis as a commissioner. Thank you for your consideration and I am happy to answer any questions about my experience. Mahalo, Kate Hickey County of Hawaii Board of Ethics Petition Your Name: Kathryn Hickey Date:4/29/21 1. State the nature of your interest, including reason(s) for the submission of this Petition. I was an applicant before the Leeward Planning Commission for a Special Use Permit on September 21, 2020 and April 15, 2021. At both hearings, Commissioner Mark Van Pernis served as a Commissioner for my application. Based on those interactions, it is my view that Commissioner Van Pernis has violated the Hawaii County Code of Ethics and is unfit to serve on the Leeward Planning Commission. I know there have been complaints made to both Mayors Kim and Roth, to the Planning Department, and to the County Council about Commissioner Van Pernis before and yet he still remains on the LPC. I feel it is my civic duty to add my complaint to the pile in the hopes that this might be the final straw that removes him from a position of power in County Government. 2. Provide the specific section of the Code of Ethics in question: a. Section 2-83 Fair Treatment b. Section 2-84 Conflicts of Interests 3. Provide a complete statement of the facts: I own a 20 acre coffee farm in Holualoa and applied for a Special Use Permit to host small weddings and events on my farm. We had a hearing in front of the LPC on 9/21/20 on our application and the commissioners (including Commissioner Van Pernis)voted to "continue" our application to a later hearing because they wanted us to do a road/traffic study and to discuss mitigation options with neighbors who opposed our application. At that first hearing, Commissioner Van Pernis was rude to me, the testifiers who supported our application, and was openly biased against our application from the start of the hearing. He asked positive leading questions of the neighbors who opposed our application and prejudicial and irrelevant questions of our testifiers who supported our application. A(non-exhaustive) list of examples include: i. In questioning our florist, Lyla Mah, who does not live on our road, who testified in support of our application he asked, "if youve been up and down there three years, where is the closest fire hydrant?" 1. He knew that she would not and did not need to know that and was badgering her. He was cut off by the Chair from this line of questioning. ii. In questioning our neighbor Wendy Mitchell who testified in opposition to our application, he asked "if there was to be liability or some problem arises on the road, who would be liable for it? If you know... . And if the hundreds, if among the hundreds of people coming to the wedding venue, there was an injury on the road, coming up or down the road, who is liable in your experience?" 1. Wendy Mitchell is not a lawyer and is not qualified to testify to this. Commissioner Van Pernis was clearly leading her to say she might be liable so that he could make that point later. Our application also did not reflect "hundreds" of people coming up and down the road and was an intentional exaggeration of the facts to lead the testifier. iii. In questioning our neighbor Wendy Mitchell who testified in opposition to our application, he asked again about fire hydrants and was again cut off by the chair who asked him to not ask testifiers about fire hydrants. iv. In questioning a community member and realtor, Amber Haley, who testified in support of our permit he asked "are you advocating that every agricultural property like this one be allowed commercial activities?" a. He asked this same question of us, our representatives and other testifiers. Throughout the hearing he made it a point to be clear that he thought agricultural property should never be allowed to have commercial activities. He said later in the hearing(page 68), "if we start this precedent, every agricultural property, every Land Use Agricultural classified property will be able to go commercial."That is a misstatement of how SUPs work (they are reviewed on a case-by-case basis) and is a clear example of"legislating from the bench" which I discuss more in depth below. After that hearing, we completed the requested road study and reached out to as many neighbors as we could to come to an agreement regarding our application. We withdrew our initial application and resubmitted a new application with many reductions in our "ask," neighbor communications, and the road study. We went before the LPC for the second time on 4/15/21. At that hearing, we were denied for our permit in a 4-2 vote. At our second hearing on 4/15/21, Commissioner Van Pernis refrained from any objectionable behavior until the end of our hearing after he motioned for our application to be denied. During the discussion on that motion (which started at 5:30 in the video) he makes the following statements (transcribed by me - and may contain some small mistakes because the transcript has not yet been released): Commissioner Van Pernis: "You may recall that the applicant said she wants to see ag property preserved. That is ag property other than hers. She wants commercial activity on her property.... this is a prime agricultural property." There is all sorts of new information and new positions that have been mentioned by the applicant and just yesterday we were still receiving new information and documents. That's not enough time and all this new stuff requires the denial and then they can apply again. It's all this new stuff. I don't know. I haven't seen all the new stuff. Some of it came in just yesterday. I would hope that the applicant and the planning department would give us a little more time to look at this sort of thing. And, I am not offended, they bought agricultural property here. With the road. They knew what they were buying, they knew that they were not necessarily absolutely entitled to any sort of permit. They bought this property. They bought this road. They are only farming in coffee 8 acres. They may be farming elsewhere but I don't know that they can't make a living farming properly. They say that all the other land owners should not be listened to because they are just rich guys living in big houses up there. Well, Wendy Mitchell is a social worker and her husband worked too and they farmed on the side. So we shouldn't be talking stink about them just because these people choose to work coffee and weddings rather than elsewhere. Chair Vitousek: "Commissioner Van Pernis, let's avoid trying to put words into their mouth. You're welcome to state your opinion but please do not try to state theirs" Commissioner Van Pernis: 'And all the neighbors bought agricultural rural land in the peace and quiet and all of the things that go with it. What about them?You go a little bit commercial here and a little bit commercial there and pretty soon it's all gone. Isn't that bad precedent? More and more special permits overcoming zoning and pretty soon you destroy the ag zoning:' The commission is here to represent west Hawaii. Not the Hickeys. And we need to consider all of West Hawaii, not just the Hickeys." After he made these statements, Commissioner Carr-Smith apologized to us for Commissioner Van Pernis' statement that he, and the LPC, are not there to represent us. These couple minutes of Commissioner Van Pernis' discussion of our application perfectly showcase the reasons for this ethics complaint. I will address them chronologically. V. He intentionally misstates my comments about wanting agricultural property preserved. My testimony from earlier in the hearing was that with the income from this wedding venue we would be able to maintain and expand our coffee operations and not have to sell our farm - likely to someone who would not farm it. Also, the area of our farm that we were applying to have commercial activity (about 1/4 acre) cannot be farmed as it is a pahoehoe lava flow with no soil or plants. vi. He is biased against our application because documents came to him late. He says we should be denied for that reason and should reapply. This is also a misunderstanding of the Hawaii Administrative Code. Once a SUP application is denied, the applicant cannot reapply for five years. vii. He says that we knew we were buying agricultural land and therefore should not be allowed a SUP. The purpose of a SUP is to allow an unusual use that would not otherwise be allowed under the typical zoning. It is clear from this statement that he does not believe that SUPS should be granted to anyone who buys important agricultural land. viii. He incorrectly states that we are only farming 8 acres - even though we stated numerous times throughout our testimony that we farm 18 of our 20 acres. Just 8 are commercial coffee while the rest are animal pastures, vegetable gardens, greenhouse space etc. He also says that he thinks we can make a living without this SUP if we were farming properly. This is insulting on its face. Furthermore, we testified to all the ways we had tried to make a living on farming alone, and we have been actively farming for the last 8 years and only turned a profit one of those years (and that profit was due to hosting events not farming). ix. He again intentionally misstates our testimony (and is reprimanded for it by the Chair) in his comments about "rich guys" and "big houses." X. His comments about our neighbors, Wendy and Tom, show an undisclosed conflict of interest or violation of the Sunshine Law. He explains that Wendy Mitchell and Tom (Buckner) have jobs and that Wendy is a social worker and that they farm their land on the side. Those are our neighbors who generated a petition in opposition to our permit application and testified at the hearing. Their jobs and how they farm (which they do not) were not in the record at this hearing or at our first hearing. The only way that Commissioner Van Pernis could have known that about them is if he knows them personally or if he talked to them (or others) about this application outside of the hearing - a violation of the Hawaii County Sunshine Law. I do not know how he knows Wendy Mitchell and Tom Bucker, but his knowledge of their jobs and his scolding us for "talking stink" (which is a mischaracterization of our testimony) about them implies that they have an undisclosed personal relationship. Had he disclosed that relationship before the hearing, we would have requested that he abstain from voting on our application. xi. His statements in opposition to setting a precedent of allowing commercial activity on important agricultural land show that he would like to "legislate from the bench" and not allow any commercial activity on agricultural land ever. But the Hawaii County Administrative Code allows for commercial uses on important agricultural lands with a Special Use Permit. The permit that we applied for. These comments show that he makes his decisions based on his personal views of what the rules should be, rather than basing his decisions on interpretation and application of the Administrative Code as is required of a Leeward Planning Commissioner. xii. Finally, he is incredibly hurtful, to myself and my husband in his statements that he and the LPC are there to represent West Hawaii and not us, as though we are not members of West Hawaii. His comments imply that just by applying to a SUP we did something wrong or were asking for special treatment. When the reality is that we followed the rules as written and went through an extremely lengthy and expensive process in order to comply with all County rules and deserve respect from the Planning Commissioners even in a denial. His comments were extremely hurtful, unprofessional, and demeaning. 4. Provide a statement of your position or contention: In our case, there are four main areas of concern at issue with Commissioner Van Pernis's comments, behavior and conflicts of interest: i. His unprofessional, unwelcoming, rude, and sometimes hostile comments and behavior towards myself as the applicant and the testifiers who testified in support of our application. ii. His clear bias against our application from the start of the proceedings in the 9/21 hearing. Before he had heard all testimony or even seen our entire presentation it was clear that he had made up his mind. iii. His non-disclosure of a relationship with the neighbors in opposition to our application. A non-disclosure which, if it had been disclosed, would have caused us to ask that he abstain and would have changed the outcome of our application. iv. He has either a poor working understanding of the Hawaii County Administrative Code or an opposition to the code as he has stated, numerous times, that he makes his decisions based on what he feels is "best for West Hawaii" rather than based an interpretation and application of the Administrative Code as written. In the legal world this is referred to as "legislating from the bench" and it is a mark of a poor judge and someone who cannot be trusted to be impartial. For example, he states his opposition numerous times to the existence of SUPS in principle on important agricultural land - a clear use which is allowed by the Hawaii County Administrative Code. 5. I would like to request an open hearing. Typed Signature: Kathryn Hickey(written and scanned signature attached).