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HomeMy WebLinkAboutMIN LAAC 2023/08/15 (2022-2024)Committee on Legislative Approvals and Acquisitions 14th Session West Hawaii Civic Center 74-5044 Ane Keohokalole Highway, Building A Kailua-Kona, Hawaii August 15, 2023 CALL TO The regular meeting of the Committee on Legislative Approvals and Acquisitions ORDER: was called to order at 1:30 p.m., in the Council Chambers, Kailua-Kona, by Mr. Holeka Goro Inaba, Chair. ROLL CALL: Present: Mr. Holeka Goro Inaba, Chair Ms. Michelle M. Galimba, Vice Chair Ms. Cindy Evans, Member Ms. Jenn Kagiwada, Member Mr. Matt Kaneali`i-Kleinfelder, Member Ms. Ashley L. Kierkiewicz, Member Ms. Heather L. Kimball, Member Ms. Susan L. K. Lee Loy, Member Ms. Rebecca Villegas, Member 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: (There were none.) ORDER OF The Chair directed the Committee to proceed to the next order of business, RESOLUTIONS: Order of Resolutions. STATEMENTS The Chair directed the Committee to proceed to the next order of business, FROM THE Statements from the Public on Res. 220-23. PUBLIC ON RES. 220-23: The following individual registered to speak and came forward when called by the Chair. Keoni Fox Res. 220 (Comm. 391), in support. (representing Ala Kahakai Trail Association) LAAC-14 August 15, 2023 Res. 220-23: AWARDS A PUBLIC ACCESS, OPEN SPACE, AND NATURAL RESOURCES PRESERVATION MAINTENANCE FUND STEWARDSHIP GRANT TO ALA KAHAKAI TRAIL ASSOCIATION Approves a grant of $160,000 to Ala Kahakai Trail Association, a 501(c)(3) nonprofit organization to establish a Kaunamano Community Resource Management Plan to ensure the conservation, preservation, and protection of Kaunamano Property in Ka`u, (Tax Map Keys: 9-5-011:001, 004, 005, 006 and 9-5-012:001), pursuant to Section 10-16(h) of the Hawaii County Charter. Reference: Comm.391 Intr. by: Ms. Galimba Motion to Approve: Ms. Kimball moved to recommend adoption of Res. 220-23. Seconded by Ms. Lee Loy. CHR. INABA: We'll start off with Council Member Galimba. MS. GALIMBA: Thank you, Chair. I just wanted to note that although I introduced this resolution, because the property is in my district and that's the custom here, my cattle ranch does lease this property from Ala Kahakai Trail Association, so I will be recusing myself from this vote and discussion. CHR. INABA: Thank you, Council Member Galimba. We have information contained within the resolution. And then we also have our Property Manager Mr. (Hamana) Ventura here in chambers today, if members have any questions. Opening it up at this time. If not, there's a motion on the floor to forward Resolution 220-23 to Council with a favorable recommendation. All those in favor, please say "aye." Vote on Res. 220-23: The motion to recommend adoption of Res. 220-23 (Approved) was carried by the following voice vote: Ayes: Committee Members Evans, Kagiwada, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Villegas, and Chair Inaba — 8. Noes: None. Absent: None. Excused: Committee Member Galimba —1. CHR. INABA: Thank you. Resolution 221, please. Page 2 LAAC-14 August 15, 2023 STATEMENTS The Chair directed the Committee to proceed to the next order of business, FROM THE Statements from the Public on Res. 221-23. PUBLIC ON RES. 221-23: The following individual registered to speak and came forward when called by the Chair. Keoni Fox Res. 221 (Comm. 392), in support. (representing Ala Kahakai Trail Association) Res. 221-23: AWARDS A PUBLIC ACCESS, OPEN SPACE, AND NATURAL RESOURCES PRESERVATION MAINTENANCE FUND STEWARDSHIP GRANT TO ALA KAHAKAI TRAIL ASSOCIATION Approves a grant of $87,000 to Ala Kahakai Trail Association, a 501(c)(3) nonprofit organization for its Waikapuna-Kaunamano Heritage Preserve Ranger Program for the maintenance, protection, and preservation of the Waikapuna and Kaunamano Properties in Ka`u, (Tax Map Keys: 9-5-007:016, 9-5-011:001, 004, 005, 006 and 9-5-012:001), pursuant to Section 10-16(h) of the Hawaii County Charter. Reference: Comm.392 Intr. by: Ms. Galimba Motion to Approve: Ms. Kimball moved to recommend adoption of Res. 221-23. Seconded by Ms. Lee Loy. CHR. INABA: Back to Council Member Galimba. MS. GALIMBA: Thank you, Chair. Again, I have the honor of leasing a portion of this property so will be recusing from this vote. CHR. INABA: Thank you, Council Member Galimba. Any discussion? Again, we have Hamana Ventura here from Finance. Council Member Kagiwada. MS. KAGIWADA: Thank you, Chair. I just, being fairly new to the Council, just not really understand why there's two separate PONC (Public Access, Open Space and Natural Resources Preservation) maintenance for the same organization. Is that because there are for two different functions? Is it usually broken out like that? (Note: At this time, Finance Property Manager Hamana Ventura came forward to address the members of the Committee.) MR. VENTURA: Hamana Ventura, Property Manager. So, we're talking about two entirely different parcels. And so, Ala Kahakai Trails Association, we have multiple agreements pertaining to different parcels, different scope of work. The Page 3 LAAC-14 August 15, 2023 goal ultimately is to try and line up parcels in the Ka`u area, and so the scope changes. As the scope changes, the application changes. But this association has been successful in the past and so we're comfortable moving forward with them on these properties. MS. KAGIWADA: Okay. So, the Ranger Program is for just the one or for both? MR. VENTURA: It's going to be integrated between both along the corridor. MS. KAGIWADA: Okay. That's what I was a little confused by. So, the Ranger Program covers both properties. MR. VENTURA: It helps us to, I mean, ultimately there's more acreage than we can possibly manage on our own. So, we have to rely on boots on the ground, our community partners to help us along the way. MS. KAGIWADA: Okay. I understand now. Thank you. I was just a little confused by what it was covering. Thank you so much for the clarification. I yield, Chair. CHR. INABA: Thank you. Any further discussion. All those in favor of forwarding Resolution 221-23 to Council with a favorable recommendation, please say "aye." Vote on Res. 221-23: The motion to recommend adoption of Res. 221-23 (Approved) was carried by the following voice vote: Ayes: Committee Members Evans, Kagiwada, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Villegas, and Chair Inaba — 8. Noes: None. Absent: None. Excused: Committee Member Galimba —1. CHR. INABA: Last agenda item. BILLS FOR The Chair directed the Committee to proceed to the next order of business, ORDINANCES: Bills for Ordinances. Page 4 LAAC-14 August 15, 2023 Bill 61: AMENDS SECTION 25-8-19 (NORTH HILO ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING) OF THE HAWAI`I COUNTY CODE 1983 (2016 EDITION, AS AMENDED), BY CHANGING THE DISTRICT CLASSIFICATION FROM AGRICULTURAL — TWENTY ACRES (A-20a) TO AGRICULTURAL — FIVE ACRES (A-5a) AT `O`OKALA, NORTH HILO, HAWAI`I, COVERED BY TAX MAP KEY: 3-9-001:024 (Applicant: Dennis Schmitz) (Area: 20.027 acres) The Windward Planning Commission forwards its favorable recommendation for this change of zone request, which would allow the applicant to request the subdivision of the property into four lots, each approximately five acres in size. The property is located north (makai) of Old Mamalahoa Highway approximately 270 feet east of its intersection with Milo Street. Reference: Comm.388 Intr. by: Mr. Inaba (B/R) Motion to Approve: Ms. Kimball moved to recommend passage of Bill 61 on first reading. Seconded by Ms. Lee Loy. CHR. INABA: Good afternoon. We have our applicant Mr. Schmitz and Mr. (Daryn) Arai here. I believe Mr. (Sidney) Fuke is joining us online as is Director Kern of the Planning Department. Director Kern, would you like to start off? (Note: At this time, Planning Director Zendo Kern came forward to address the members of the Committee.) MR. KERN: Aloha. Good afternoon, Chair and members of the Committee. Thanks for the opportunity. We have a pretty straight forward application here from the Agricultural 20-acres to agricultural 5-acres, basically on 20-acres to be subdivided. I think the applicant will give a good representation on what they're doing there and what their intention is to do there. Probably one of the questions that might have come up was around the potential historic landing down there and we did not require a public access on that due to it being steep cliffs. Our team did an inspection out there and could not find any type of trail or access point down there via the subject property. So, that was a requirement that we did not put on there due to public health and safety. We don't believe it's a good idea to lead somebody to a 200-foot cliff with a straight drop down. There was also an SMA (Special Management Area) major permit approved for this at the Planning Commission. The SMA major permit was approved. So, if this application goes forward everything will be complete as far as discretionary approvals go and the applicant can move forward with subdividing. I'll standby, Page 5 LAAC-14 August 15, 2023 happy to answer any other questions after the applicant gives their presentation. Thank you. CHR. INABA: Thank you, Director Kern. Good afternoon. Mr. Arai, would you like to proceed with giving the Committee an overview of this application. (Note: At this time, Planning Consultant Daryn Arai and Applicant Dennis Schmitz came forward to address the members of the Committee.) MR. ARAI: Good morning, Chair Inaba and Vice Chair Galimba. Nice to see all of you, and members of the Committee. My name is Daryn Arai. I'm a Planning Consultant assisting the applicant Dennis Schmitz, who's seated to my right. And of course, you know Mr. Fuke who's joining us via Zoom. The planning director did a great job introducing this application. I was going to do a long presentation, but that's okay. The request itself is basically a fulfillment of the applicant's parents who purchased this property about 27 years ago, have cultivated the land for the last 20 years in pasturage, and again, it's really just a fulfillment of their dream. From a language policy standpoint, the request to change the zoning from Ag-20 to Ag- a and to subdivide it into four, five -acre size lots is aligned with the land use policies in this particular area. The general plan identifies these lands for urban expansion uses and that is indicative of the history of this area, the sustained the `0`6kala Mill and the sugar plantation and as well as the `0`6kala village. However, unfortunately with the demise of the sugar industry, the Hamakua Community Development Plan sort of like redirected what they feel is the most appropriate use in this particular area and that is important agricultural lands. The proposed request that you have before you is basically in complete alignment with that new policy direction by the Hamakua CDP (Community Development Plan). The applicant appreciates the favorable recommendation of the Planning Director and the Windward Planning Commission for this request, and we hope the Committee will find the same. So, we stand ready to answer any questions that you may have. CHR. INABA: Thank you, Mr. Arai. Mr. Schmitz, would you like to add anything at this time. MR. SCHMITZ: No. I just appreciate everybody taking the time to consider our proj ect. CHR. INABA: Thank you. Opening it up at this time to members of the Committee starting with Council Chair Kimball. Page 6 LAAC-14 August 15, 2023 MS. KIMBALL: Thank you. So, this particular lot and subdivision is in my district. I have reviewed the general plan, the community development plan and gone over the site with Planner Maija Jackson and am comfortable in recommending this rezoning. As was mentioned, this is designed already as urban expansion. We did, just to follow up on Director Kern's comment about historical sites, we did look at the map. There is a map that shows a landing with some geographical features that are hard to identify. It looks like the landing actually may be in another property slightly north of this one and the site is actually a pretty steep, cliff. I would not want a trail out there. So, I'll be recommending that we forward this application. Thank you. CHR. INABA: Thank you. Council Member Evans. MS. EVANS: Thank you. I think access to the ocean and along our ocean is just so critical that we always take a look at it. And my experience with this is the Kohala waterfront. And so, the Kohala waterfront is a very steep cliff, very dangerous to walk on but the community was very clear that they wanted part of the Ala Kahakai Trail. They didn't want there to be a breakup. So, there was a requirement put in that if in fact it was dangerous and too close to the cliff that they would bring in the trail, that they would bring it in away from the cliff's edge. I don't know exactly if it was 15 feet, 20 feet, or whatever, but there is something that is required of Kohala waterfront to ensure that a trail exists along that cliff edge. And so, I'm wondering was there ever any discussion about adjusting and moving in the potential to have a trail along the waterfront. Was there any discussion or consideration by the Planning Commission or the Planning Director or the person who would like to see the change? MR. ARAI: I'll respond to that. When we were made aware by DOFAW (Division of Forestry and Wildlife) I think, of the canoe landing, we did inquire with the applicant regarding historical access to the shoreline. He was able to, along with Planning Department staff, direct us to where there is currently a pathway that people do use to navigate down to the shoreline and it's actually on the adjoining property to the northeast or I think it's the northwest. I'm sorry. So, we walked along that pathway, and it meandered quite a bit, but it eventually did make its way down to the cliff edge and then from there a series of ropes helps people repel down. And when I mean repel, I mean repel down the cliff face to the approximate location of the landing. We're not exactly clear where the landing is. We tried to look at it based on the maps and aerial photographs. And I think when we were all on site, the applicant did shortly elaborate regarding the historical use. And we believe it is not a landing, it's actually an area that was used to repel sugarcane from the top down the cliff to, I guess, boats that were waiting to transport the sugarcane. Page 7 LAAC-14 August 15, 2023 The applicant did make it clear to us that there was no historical use to his knowledge of the cliff area fronting his property being used as a lateral pedestrian pathway along the cliff face. So, people who needed to navigate down simply went through the adjoining property, mauka to makai, to get down to the shoreline. MS. EVANS: Okay. Thank you for the latitude, Chair. I'd like to ask Corporation Counsel one thing on cultural access points. Thank you. Corporation Counsel, please. So, there's a comment in some of the literature that we're getting in the Windward Planning Commission. There's a comment that there's no significant adverse impact to traditional or customary Hawaiian rights. So, I guess my question is if people were using this to access, even if it was a cliff and repel down, is there some criteria or some benchmark that we use to determine in fact that was maybe traditional and customary, and do we need to take into consideration the protection of maybe public access to this place? I know sometimes people will give lawsuits saying we have to gain access to our kuleana land or whatever it is and say we should have a right to get there. And I know that happens here. So, I'm just curious if there is sort of a criterion and who would review that? (Note: At this time, Corporation Counsel Elizabeth Strance came forward to address the members of the Committee.) MS. STRANCE: Elizabeth Strance, Corporation Counsel. So let me unpack that a little bit. The Hawaii Constitution and State Law ensures customary and historical access to properties. So, regardless of what an ordinance says the constitutional right would trump that. What I heard the applicant say is that they reviewed the site and determined that it did not have a customary and historic value because it was a cane sugar site. I think the question you're raising is what if they're wrong and that would, regardless of this bill, that could be taken up at any time if there is a practitioner or there's a different determination, then there's going to be a request for access. So, you know, the discussion about what needs to be preserved and carved out based upon the information that we have appears to have been done. If something comes up later that would be the subject of further discussions with the owner of the property and any action that would need to be taken at that time. So, there's that issue. Then the final issue that I think you raised is assuming that the initial assessment is wrong, it has historical access; does the County have a legal responsibility then to provide public access to the world. And the answer to that question is generally no, because the laws don't necessarily require that. And so, what was done in this case was knowing that access to the ocean has a whole other group of laws and expectations required of the County and of the State. Page 8 LAAC-14 August 15, 2023 Looking at the site, is it a place that should require a public access to the beach. And so, an assessment was made, and it sounds like a very responsible assessment that it's dangerous and that the County shouldn't get into the business nor require property owners to maintain a rope site to repel down the side of a cliff. And so, it looks like this particular issue was evaluated from a number of different perspectives and then a conclusion reached for purposes of passing this bill and presenting this bill to you. If different information is determined down the road that would be the subject of a discussion with the property owners at that time. MS. EVANS: So potentially it could go to litigation if someone decided, a cultural practitioner or someone said, that I felt that this access should be granted. MS. STRANCE: Well hopefully it would not lead to that. There would be some approach to the landowner and a discussion held and if they can't reach some sort of agreement— CHR. INABA: Sorry, Ms. Strance. Can you please speak a little louder into the mic? MS. STRANCE: I apologize. Hopefully litigation is a last resort and not a first step, you know. And so there is something that needs to be approached with the landowner, they can have a discussion and evaluate it then. And then a lawsuit takes place if the parties can't reach agreement. MS. EVANS: Right. Thank you. That was insightful. And I do have one more question for the Planning Director. Do you have people on staff that I guess their expertise is understanding the access, the requirement for access to trails, to customary and traditional right access? Because you concurred with this recommendation but is it something that you did a complete analysis of, I guess is my question. MR. KERN: Thank you for the question. We do have members on staff within our Long -Range Division that handle shoreline and public access that we send it through them to review. It's also upon the applicant to demonstrate that there isn't anything occurring there, which they did. And if something were to come up in the future, we'd have that discussion. I would like to point out that there is basically lateral access along the coastline for Hawaii. Nobody owns the coastline in Hawaii, so you do have lateral access along there. It's the mauka makai access points that, this one that we're talking about here and again we feel it's not appropriate to have a mauka makai access point to basically a hazard. If there were to have something come up from a cultural side of it, then I'm sure that could be worked out. MS. EVANS: Okay. Thank you. Page 9 LAAC-14 August 15, 2023 CHR. INABA: Thank you, Council Member Evans. Council Member Kagiwada. MS. KAGIWADA: Thank you, Chair. So just to be very clear so I'm understanding this. You want to divide this into four, five -acre parcels so that you can build homes on each of these parcels, is that correct? Okay CHR. INABA: Sorry, can please respond on the mic? Thank you. MR. SCHMITZ: That's correct. MS. KAGIWADA: Thank you. And just so I understand, on Section 2-I, the method of sewage disposal shall meet with the requirements of the State Department of Health, and that means what, septic systems? MR. ARAI: Correct. It will be septic. There's no sewer system in the area. MS. KAGIWADA: Okay. And what's the soil like just in this area? Just curious because the more I read about the septic systems and being on rocky soil and how they're not much better than cesspools. I'm interested to know what the soil is like here. Is it rocky, are we concerned at all to be adding three more septic systems? I guess that's maybe to you, Planning Director, or anybody that wants to take that one. MR. KERN: Sure. The soils along the Hamakua coast are much older clay lone type soils, not necessarily a rocky core soil like you find in certain areas on the west side or in Puna. It's our understanding, especially with the elevation there, and that type of soil that we don't believe that there's going to be any issues with the septic system there. The Department of Health ultimately has the final authority on that. If they want a different means of sewer disposal, then that's what they would require. But the soil there is very soily, it's Hamakua coast. MS. KAGIWADA: Great. So, it's better at filtering things and stuff. Okay. Thank you so much. I really appreciate that. That's all for me. Thank you, Chair. CHR. INABA: Thank you, Council Member Kagiwada. And there is some information on the soil on Page 3, of the Windward Planning Commission's transmittal letter. Going over to Council Member Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Thank you, Chair. For the applicant, is there any farming occurring on the property now? MR. SCHMITZ: Could you repeat that? I'm hearing impaired. Page 10 LAAC-14 August 15, 2023 MR. KANEALI`I-KLEINFELDER: Is there any farming occurring on the parcels presently? MR. SCHMITZ: Yes. We run cattle on the land right now, we have for 20 years or so. MR. KANEALI`I-KLEINFELDER: Okay. MR. SCHMITZ: And so, we grow pastureland. MR. KANEALI`I-KLEINFELDER: Thank you. That's helpful. I'm looking at the map that was provided from the Planning Department within this ordinance. Looks like we have surrounding properties that are anywhere from Ag-40 to RS-10. So, you're finding Ag-5 to be appropriate for this parcel and for this area, Mr. Kern? MR. KERN: Yes. So, there's two ag (agriculture) designations. There's the FA or Family Ag and then there's the A designation or Ag. And in areas that have soils that are reasonable for agriculture, then pretty much the minimum zoning size is the agricultural -five acres minimum lot size. Areas that don't have the soil quality is where we move into more of the FA or Family Ag, which would be five acres or less. So, the five acre size is consistent with the general plan, CDP's, and all of our policies from the size perspective. MR. KANEALI`I-KLEINFELDER: Okay. Thank you. And then in line with what Ms. Evans asked and understanding our constitutional law requirements. I mean, I don't think it's a question of whether it was used historically, but who used it historically. As far as I can tell this was kind of the grounds of one of our Ali`i Umi a Liloa, I mean he was well known. It's an interesting story. So, if from what I'm hearing that there was and is uses for the shoreline, I just want to ensure that we don't have another situation like we've had in different areas on the Hamakua coast where fishing grounds, access points to the shoreline are being blocked and are no longer accessible by the public. Because the key that I already mentioned was mauka to makai. Yes, you can traverse along the shoreline if you can get there, but if you can't get there then we blocked fishing grounds for local families who may have been there for centuries or longer. So that's my concern, it always is when we talk about shoreline access, especially in these cliff areas. MR. KERN: Absolutely. If I could respond? MR. KANEALI`I-KLEINFELDER: Yes. Page 11 LAAC-14 August 15, 2023 MR. KERN: I, too, am a strong proponent of shoreline access being able to fish, surf, dive, all of those. So, it's something that we take a very hard look at and want to make sure that we are providing that appropriately. In other areas, we have provided that where there were fishermen, even in some areas that there might have been some ladder mechanisms to come down, the fisher community came together and worked a mechanism with the landowner to allow for safe access to those points. In this case, we hadn't had anybody reach out from the fishing community. I believe as the applicant already suggested, there is an access point down to the gulch area, but it's not on this property. If that access point had ran through this property, then that would be another conversation and we'd be including that in a mauka to makai access. But in this case, we haven't had anybody reach out. We don't see that and don't believe that there's going to be an issue related to that. MR. KANEALI`I-KLEINFELDER: What would it take for the community to say they have a concern? Does the adjoining property have an easement of some sort that's codified in their zoning ordinance that allows for that mauka to makai access? MR. KERN: I don't believe that the other property has anything. Maij a, you can jump in and correct me if I'm wrong. I don't believe that there's an actual zoning ordinance that covers that other property. If the other property came in for a discretionary permit, then we would look at that and require that. MR. KANEALI`I-KLEINFELDER: Who owns the other adjoining property? MR. KERN: I don't have that information right in front of me. I can look it up if you would like. MR. KANEALI`I-KLEINFELDER: Well, is it an existing entity or is it a de- funked organization? And then, while you're looking at that, my big question is if the community deems this, "Hey, this is a fishing spot, we've been going here for generations," do they need to come in and let us know that or if they don't know, they lose? And I say this because we've seen this again and again. (Note: At this time, Planner Maija Jackson came forward to address the members of the Committee.) MS. JACKSON: I can answer that if you'd like, Director. I'm sorry. I can try to answer that. The property just north of the subject property is owned by a private owner. It's zoned industrial. As far as I know it has been zoned industrial since the zoning code was established, so there's no zoning ordinance associated with it. Therefore, there's no associated permit that requires public access. Page 12 LAAC-14 August 15, 2023 MR. KANEALI`I-KLEINFELDER: Okay. That's helpful for me. My only follow up is, how does the community get their input in if these are fishing grounds that they've been using, how do we ensure that their voice is heard and ensure that the access is maintained into the future? MR. KERN: In all past cases they have reached out to us via email, phone call, come into the office, submit a letter. As soon as that happens, we start looking at that, communicating with them, have them talk to the applicant and look to find a mutual agreeable solution to provide a public access that's beneficial to all. MR. KANEALI`I-KLEINFELDER: Okay. Thank you very much. I yield. CHR. INABA: Thank you. Council Member Galimba. MS. GALIMBA: Thank you. I just wanted to ask the applicant, it says in your application that you're planning to sell the other you're going to keep one and sell the other three to family members who will be doing more intense agriculture. Sorry. I understand from your application that you're going to be selling the parcels within your family and that they will be doing more intense agriculture than the cattle that you currently have. Could you maybe talk about that a little bit? MR. SCHMITZ: About a year ago we had an incident there where there was a fire in the village, and it was very close where it just about took out the entire village. And one of the things that was critical to the resolution of that fire was that that pasture was in good shape, was not high and dry in grass, and the helicopters were able to stop it right in the pasture area. So it's like a jungle there, if you don't take care of it, it ends up being a fire hazard. And we're thinking if we could divide it into smaller pieces then the individual owners could maintain that easier than 20 acres. And that may include pastureland and other farming techniques. Although, my neighbor says it would be tough to farm it. So, you know, it's good soil if you get through the cultivation of it. MS. GALIMBA: I see. Thank you. CHR. INABA: Heading back to Council Member Evans. MS. EVANS: Thank you. I just want to continue just a little bit more on the discussion of customary fishing. You know, our island is divided in ahupua`a, and we have the Aha Moku Council. And so, you have families that live within the ahupua`a, and I wondered if you've reached or talked out to the local generational families that have lived in that ahupua`a and asked them about customary and traditional fishing and use of that shoreline. And the only reason is on my watch I don't want to make a mistake. You know, I don't want to take Page 13 LAAC-14 August 15, 2023 away something that has been used for generations. And so, I'm being a little cautious right now. So, I'm just wondering if you've talked to the local families? MR. ARAI: Allow me to answer. As far as this particular process; the change of zone application process, there was no community outreach beyond simply notifying surrounding property owners of the filing of the application as well as the hearings before the Windward Planning Commission. The distance from the property with 1,000 feet from its boundaries, that's the notification requirement. I'm trying to recall how many individuals we notified. I think it was somewhere in the order of about 60. I'm guessing off the top of my head. And I'm sorry I don't have that information directly in front of me. So, members of the community were notified, and we did not receive any response from anyone expressing concerns regarding the proposed action before you. MS. EVANS: Okay. Alright. Thank you. CHR. INABA: Thank you. Handing over to Council Member Villegas. MS. VILLEGAS: Aloha. Thank you to my colleagues for your levels of concern and attention to shoreline access as it relates to cultural practice native Hawaiian gathering rights. I just have a question here about Condition "M." "Should any of the conditions not be met or substantially complied with in a timely fashion, the Planning Director may initiate rezoning of the property to its original or more appropriate designation." And I suppose I'm more familiar with a specific number of years being included in this and wonder why that was left out. CHR. INABA: Council Member Villegas, who are you addressing? MS. VILLEGAS: I'll go ahead and address you and if the Planning Director would like to also respond. MR. ARAI: I'll try to respond. You know, the zoning is about establishing land use patterns. So, if the Council feels that a particular pattern is appropriate use of the land than that pattern doesn't necessarily have to always have a suspense date or an expiration date. It's the proper pattern. But also, be aware that what accompanied this particular application was a special management area use permit that was approved by the Planning Commission. That permit does have a compliance timeframe, it was five years to complete the subdivision. So, there are controls in place and the subdivision cannot move forward until it was able to secure that SMA permit. So, the control is embedded within the SMA permit. So, it's not that there are no performance conditions within any of the entitlements that the applicant is requesting for. It's in the SMA. So to include it now in the change of zone is somewhat superfluous, in my opinion, because the control and the performance requirements are in the SMA. Page 14 LAAC-14 August 15, 2023 MS. VILLEGAS: I can understand the psychology behind that. However, I firmly disagree, and I think it needs to be included in this documentation. It does not hurt to have it listed twice, and to be the requirement, as listed here. I think we're all aware of some of the challenging times we went through in the last few months of making some changes on what time extensions can be granted by the Planning Director. And so, I think this is the first time I'm noticing or seeing one come through that does not have that time, and while I recognize and appreciate your pointing out that it does exist in the SMA, I would be more comfortable and it would be a requirement of my approval of this, is to have that listed here as well. So, thank you for our kindness and understanding in that and taking that request into consideration as, you know, we continue this discussion. And with that, I'll go ahead and yield. Back to you, Chair. CHR. INABA: Thank you. Any further discussion on the bill before us? Council Member Kierkiewicz. MS. KIERKIEWICZ: Thank you, Chair. I'll just note for the record that I will be supporting the bill as presented. I think we've had a number of discussions over the last few years about the timing element and component, and I think as a body we make a decision is the land use that we are identifying here appropriate in perpetuity or not. And I believe that what we are looking to do here is very much appropriate. So, I'll be supporting this request today. Thank you for the due diligence done by the Planning Department and our Planning Commission for this favorable recommendation. I yield. CHR. INABA: Mahalo. Any further discussion? Mr. Arai, are there any other comments you would like to make at this time? MR. ARAI: The only comment I would have is that if the Council feels inclined to include a performance condition, you know, like it normally sees in a zoning ordinance than I believe the applicant will have no objection to including such a condition. CHR. INABA: Thank you. I believe in reviewing the letter from the Windward Planning Commission the intention here is to subdivide within three years at a cost of around $200,000. Director Kern, the reason you folks prepare these bills for submittal to the Commission and then to us. So, can you explain, is it the departments choice to leave out the specific timeframe in which conditions are to be met? MR. KERN: Yeah, thank you, Chair, for the question. So as you folks have seen over time properties get stuck in the state of limbo. You've seen them come back through where they're really not actionable in any way. So, they have to go through this entire process again to either go back to the original zoning that they had or to get current on the zoning that they had gotten. Most places that are Page 15 LAAC-14 August 15, 2023 operating under modern planning principles don't have timing conditions. They have performance conditions, where you have to perform the proper mitigation et cetera prior to, you know, effectuating the subdivision or effectuating the plan approval. And that's really the direction that I see us going as a county and a state in areas that you know where that zoning is good and for the long term. So, if you're in urban core and you're changing that to a commercial zoning, that commercial zoning is appropriate in that urban core. What we have is the performance conditions. In this case we have the zoning request, Ag-20 to Ag-5 in an area that I believe if we all look at it would be consistent for an agriculture use at five acres now, tomorrow, ten years, twenty, thirty years and beyond from now. And so, there's no point in having a timing condition in that. If there's a project that might be on the fringe or an area of change, then a timing condition may be appropriate to come back and look at that and say, "Hey, if you take the action within the next couple of years it makes sense right now. You lock that in." But if you're going to wait and time goes on, you might want to have a timing condition and come back and look at that. As it relates to the SMA, that's a permit. That's not a rezoning application, that's actually a permit and having a time condition within that performance does make sense because it's more based on a permit and we're looking at different resources. So, if it isn't done within that time, let's come back and let's take a look at it again if they don't perform within that time period. So, that's really the direction that we're going to be moving forward with for most of the applications. CHR. INABA: Okay. I'll just say it. I think that is a concerning approach being that if we continue to allow for certain rezones to occur and we're not seeing the intended development and we're only going to keep approving we might find ourselves in trouble in terms of infrastructure and congestion in certain areas. So, I will state for the record based on what you've just represented as to the approach of your department moving forward, I think this Council should be very mindful of time conditions and completing, and not necessarily leaving zoning with a property forever whenever it's convenient for them. Based on that and based on representation by the applicant today, I'll be preparing an amendment at first reading for the five-year commitment to completing the conditions in line with the SMA major application that was approved. And with that I can be supportive. I'll be supporting moving this forward today, and I'll put in the amendment at first reading. You have something to add? Very quickly please. Go ahead, Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Thank you, Chair, for the latitude. I was reading through the planning notes. I have a question regarding the roadway, the access. Is this property being considered a series of 50-foot-wide private Page 16 LAAC-14 August 15, 2023 agricultural standard roadways. What is an agricultural standard, where is that definition found? Is that just a random term that we're using in this case? CHR. INABA: Are you asking the Planning Director that question? MR. KANEALI`I-KLEINFELDER: Yeah. For you, Director. MR. KERN: Yeah. So, the agricultural road standard is basically the ag standard that is used for agricultural subdivisions. These were old plantation roads with, you know, a certain amount of compaction. They're not to be dedicated to the county, it's basically the ag standard conditions that are minimal. MR. KANEALI`I-KLEINFELDER: Do we have a definition somewhere in the code for ag standard or minimum standard? MR. KERN: Maija, do you have access to that definition? MR. KANEALI`I-KLEINFELDER: If you can, shoot it to me in an email. I'm interested in seeing it. MR. KERN: Okay. MR. KANEALI`I-KLEINFELDER: Thank you. Thank you, Chair. CHR. INABA: Thank you very much. There's a motion on the floor to forward Bill 61 to Council with a favorable recommendation. All those in favor? Vote on Bill 61: The motion to recommend passage of Bill 61 on first (Approved) reading was carried by the following voice vote: Ayes: Committee Members Evans, Galimba, Kagiwada, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Villegas, and Chair Inaba — 9. Noes: None. Absent: None. Excused: None. CHR. INABA: That brings us to the end of our agenda. Page 17 LAAC- 14 August 15, 2023 ADJOURN- There being no further business, at 2:21 p.m., Ms. Lee Loy moved to adjourn MENT: the meeting. Seconded by Mr. Kdneali'i-Kleinfelder and carried by the following voice vote: Ayes: Committee Members Evans, Galimba, Kagiwada, Kdneali'i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, Villegas, and Chair Inaba — 9. Noes: None. Absent: None. Excused: None. CHR. INABA: This meeting is adjourned at 2:21 (p.m.). Approved: ��3 Mr. Holeka Goro Inaba, Chair (Date) Legislative Approvals and Acquisitions Committee HI/tk Page 18