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25 Aupuni Street,Suite 2603 • Hilo, Hawaii 96720 • (808)961-8211 • Fax(808)961-6553
KONA: 74-5044 Ane Keohokalole Hwy.,Bldg C • Kailua-Kona, Hawaii 96740
(808)323-4444 • Fax(808)323-4440 •
March 19, 2024
l rn
Heather Kimball, Council Chair •
and Members of the County Council co ;:
County of Hawai`i -
25 Aupuni Street °f
Hilo, HI 96720 `?
Dear Chair Kimball and Members:
SUBJECT: Change of Zone Amendment Application No.PL-REZ-2023-000051
Amendment to Change of Zone Ordinance No. 00 90 (REZ 684)
Applicant: Lili`uokalani Trust
Request: Amendment to Delete Conditions B, C, D,F, and K; If Deletion of
Conditions B and,C is not Possible,Applicant Requests a Ten (10)-
Year Time Extension to Condition B (Time to Secure Final Plan
Approval) and a Seven (7)-Year Time Extension to Condition C
(Time to Complete Construction)
Tax Map Key: (3) 7-4-015:015 (por.), Kailua Kona,North Kona,Hawaii
As required by Chapter 7, Sec. 6-7.5 (a)(3), Hawai`i County Charter, transmitted herewith for the
County Council's consideration and action are the Leeward Planning Commission's letter and
enclosures regarding the above-referenced request.
Sincerely,
0 A /IA.-
yMITCHELL D. ROTH
Mayor
TCounci I Li liuokalaniTrustPL-REZ-2023-000051 1pc
Enclosures
cc: Planning Department Comm. No.
• Ref. To:
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(`� `St County of Hawai`i is an Equal Opportunity Provider and Employer. Ref. Date .0 ® 5
•
�tv'o�............... Barbara DeFranco Chair
Mitchell D.Roth :•�o�• .= •.
Mayor • '- �l Mahina Paishon-Duarte,Vice Chair
`•;�3. /, :*' Dean Au
Deanna S. Sako s "*'s Michael Dela Cruz
Managing Director Clement"Cr Kanuha III
OF
•
County of Hawaii
LEEWARD PLANNING COMMISSION
Aupuni Center • 101 Pauahi Street,Suite 3 • Hilo,Hawai`i 96720
Phone(808)961-8288 • Fax(808)961-8742
March 15, 2024 •
Heather Kimball, Council Chair
and Members of the County Council
County of Hawai`i
25 Aupuni Street
Hilo, HI 96720
Dear Chair Kimball and Council Members:
SUBJECT: Change of Zone Amendment Application No.PL-REZ-2023-000051
Amendment to Change of Zone Ordinance No. 00 90 (REZ 684)
Applicant: Lili`uokalani Trust
Request: Amendment to Delete Conditions B, C,D,F, and K; If Deletion of
Conditions B and C is not Possible,Applicant Requests a Ten (10)-
Year Time Extension to Condition B (Time to Secure Final Plan
Approval) and a Seven (7)-Year Time Extension to Condition C
(Time to Complete Construction)
Tax Map Key: (3)7-4-015:015 (por.),Kailua Kona,North Kona,Hawaii
The Leeward Planning Commission (Commission), at its duly held public hearing on February
29, 2024, considered the above-referenced application for a Change of Zone Amendment
application to delete Condition B (time to submit and secure Final Plan Approval), Condition C
(time to commence construction), Condition D (Eho Street extension improvements), Condition
F (Eho Street/Queen Ka`ahumanu Highway intersection improvements), and Condition K
(Administrative Time Extension). If deletion of Conditions B and C is not possible, the
applicant is requesting a ten (10)-year time extension to Condition B to Secure Final Plan
Approval and to amend Condition C to allow construction to commence within two (2) years of
receipt of Final Plan Approval and be completed within five (5) years thereafter of Ordinance
No. 00-90. The subject property is located along the makai side of Queen Ka`ahumanu Highway
between Eho Street and Kona Coast Shopping Center, Keahuolu,North Kona, Hawai`i.
The Commission voted to forward a favorable recommendation to the County Council based on
the Planning Director's recommendation.
Hawaii County is an Equal Opportunity Provider and Employer
•
Heather Kimball, Council Chair
and Members of the County Council
County of Hawaii
March 15, 2024
Page 2
The Commission concurred with the Planning Director's following reasons for a favorable
consideration of the request. Criteria for granting the favorable recommendation are shown
below in bold print:
The applicant is requesting to delete five conditions of Change of Zone Ordinance
• No. 00 90 written as follows:
■ Condition B (time to submit and secure Final Plan Approval): final Plan
Approval of the development shall be secured from the Planning Department
within ten years from the effective date of this amendment. To assure adequate
time for plan approval review and in accordance with Chapter 25-2-72 (Zoning
Code), plans shall be submitted a minimum of forty-five days prior to the date by
which plan approval must be secured. Plans shall indicate internal driveway
circulation with the adjacent Kona Coast Shopping Center;
■ Condition C (time to commence construction): construction shall commence
within one year from the date of receipt of Final Plan Approval and be completed
within two years thereafter;
■ Condition D (Eho Street extension improvements): improvements to Eho Street
extension, including curbs, gutters and sidewalks, shall be constructed within the
existing 60-foot wide roadway easement from Eho Street to Queen Kaahumanu
Highway meeting with the approval of the Department of Public Works. These
improvements shall be completed prior to issuance of a certificate of occupancy
for any portion of the commercial development;
■ Condition F (Eho Street/Queen Ka`ahumanu Highway intersection
improvements): improvements to Eho Street-Queen Kaahumanu Highway
intersection shall meet with the approval of the Departments of Transportation-
Highways Division and Public Works;
■ Condition .K (Administrative time extension): an initial extension of time for
the performance of conditions within the ordinance may be granted by the
Planning Director upon the following circumstances:
Alternatively, if the deletion of Conditions B and C is not possible, the applicant
is requesting time extensions with specific amendment language as follows (material to
be deleted is bracketed and struck-through; new material is underlined):
Heather Kimball, Council Chair
and Members.ofthe County Council
County of Hawai`i
March 15, 2024
Page 3
(B) final Plan Approval of the development shall be secured from the Planning
Department within ten years from the effective date of this [mod]
amended ordinance. To assure adequate time for plan approval review and in
accordance with Chapter 25-2-72 (Zoning Code), plans shall be submitted a
minimum offorty-five days prior to the date by which plan approval must be
secured. Plans shall indicate internal driveway circulation with the adjacent
Kona Coast Shopping Center;
and
(C) construction shall commence within [ems] two years from the date of receipt
of Final Plan Approval and be completed within [tee]five years thereafter;
The applicant's stated reasons for the request are as follows:
Deletion of Conditions B and C: The applicant is requesting deletion of these timed
construction performance conditions B and C to allow the entire parcel to be developed
as the market demands and not with artificial timeframes on a smaller portion of the
property for the following reasons:
1. The applicant believes that the property and surrounding area has always been
slated for industrial/commercial uses as evidenced by its original MG-la zoning
in 1967 and the remainder of the property's CV-10 zoning since 1971 and that
continuation of the CV-10 zoning would be the most suitable land use
designation.
2. The applicant has completed all the ordinance required off-site infrastructure
improvements and other off-site infrastructure required for commercial
development is available to the property;
3. The absence of any on-site development issues (drainage, archaeological/cultural,
etc.)
4. The CV-10 zoning's continued consistency with the General Plan and Kona CDP.
■ Deletion of Conditions D and F: The applicant has completed improvements to Eho
Street as required under Condition D and dedicated the improved roadway to the
County via resolution. The applicant has also completed improvements to the Eho
Street/Queen Ka`ahumanu Highway intersection meeting with the approval of the
Department of Public Works (DPW) and the Department of Transportation (DOT) as
Heather Kimball, Council Chair
and Members of the County Council
County of Hawai`i
March 15, 2024
Page 4
required by Condition F, thus the applicant requests deletion of these completed
conditions.
■ Deletion of Condition K: The Zoning Code was recently amended to prohibit the
addition of conditions to any change of zone ordinance which allows the Planning
Director to grant an administrative time extension (see HCC Section 25-2-44(c)),thus
the applicant is requesting deletion of Condition K.
The non-performance is the result of conditions that could not have been
foreseen or are beyond the control of the applicants, successors, or assigns, and that
are not the result of their fault or negligence. The subject 0.874-acre rezone area is
part of a larger 4.61-acre property situated directly south (makai) of the Queen
Kaahumanu Highway and adjacent to the west of the Kona Coast Shopping Center.
For context, the rezone area was part of a larger area that was originally zoned
General. Industrial (MG-la) in 1967 as part of the County's comprehensive rezoning
program. In 1971, the County Council approved Ordinance 400 which reclassified 7.546
acres of land from MG-la to CV-10 (for 6.143 acres of land) and to Open (for 1.403
acres of land). The Open zoned area was set aside to accommodate the planned widening
of the highway and included the subject 0.874-acre rezone area. It should be noted that
Ordinance 400 had no conditions of approval.
It was later determined that the entire 1.403-acre Open zoned land area was not
needed for highway widening, thus at the request of a then lessee, the applicant requested
to rezone the Open zoned area to CV-10 to match the rest of the parcel and to facilitate
the commercial development of the larger parcel. In 1991, the County Council approved
Ordinance No. 91 27, which was subject to several conditions, including the subdivision
and donation of a 62-foot-wide strip of land for highway widening, time performance
conditions to secure final plan approval and commence and complete construction, and
improvements to Eho Street and its intersection with the highway. The subdivision and
dedication of the roadway widening strip was completed by 1994.
In 2000, the applicant subsequently amended that ordinance to delete completed
conditions and request a 10-year time extension to Condition B to secure Final Plan
Approval. In 2010, as the applicant was still in the process of completing improvements
to Eho Street, the applicant requested and received an administrative time extension until
2020 to comply with Condition B. In 2013, the County Council accepted dedication of
Eho Street between the highway and Luhia Street as a public road.
Heather Kimball, Council Chair
and Members of the County Council
County of Hawai`
March 15, 2024
Page 5
As demonstrated above, the applicant has been diligent in complying conditions
of approval necessary to facilitate the development of the site. Moreover, the applicant
has marketed the site to prospective lessees, but the applicant notes that project starts and
completions have been affected by situations like the recession in 2008, rising interest
rates, inflation, the global COVID-19 pandemic, and more recently, the tragedy of the
Maui fires. Furthermore, while access to the site from the Queen Ka`ahumanu Highway
is considered a plus, its right-in-only access with no right-out has dampened some
interest. Thus, while the site is locationally compatible with the surrounding commercial
uses, it has and will take more than the normal time to find a developer with a project that
can be comfortable with that access constraint.
Based on the preceding, the Director has determined that the non-performance of
required conditions of approval is the result of conditions that could not have been
foreseen or are beyond the control of the applicant, and that are not the result of their
fault or negligence.
Granting of the amendments would not be contrary to the original reasons
for granting the change of zone.
As discussed above, the original change of zone ordinance from Open to CV-10
ordinance was granted in 1991 to bring match the 0.874-acre rezone area that was no
longer needed for highway widening with the remainder of the parcel and to facilitate a
commercial development thereon. That ordinance was amended several times over the
years, the most recent of which came in 2000.
The reasons for granting the original and latest change of zone ordinances have
not changed. The subject parcel and much of the surrounding area has been intended for
commercial and industrial development for several decades and much of the surrounding
properties have been developed for such uses, thus the CV-10 zoning continues to
constitute an appropriate land use pattern. Additionally,the CV-10 zoning continues to be
consistent with the General Plan, the Kona CDP, the Zoning Code.
Finally, all the required off-site infrastructure to support development on the
parcel is available and there are no on-site impediments (e.g., topographical, drainage,
cultural/archaeological resources, etc.) to the development on the parcel consistent with
the requirements of the Zoning Code, other development codes, and any conditions of the
amended zoning ordinance.
Heather Kimball, Council Chair
and Members of the County Council
County of Hawai`i
March 15, 2024
Page 6
Appropriate infrastructure such as water, wastewater, and roadway access are
available or will be constructed by the applicant to support uses permitted under the
CV-10 zoning.
Conditions of approval will require the applicant to comply with Department of
Water Supply (DWS) and Fire Department requirements to provide potable water and fire
suppression water to the site, and to connect to the County sewer in the area.
There are no irresolvable geological or topographical problems which cannot be
rectified, or which would render the land unusable. Conditions of approval will require
the applicant to develop a drainage master plan meeting with the approval of the
Department of Public Works and construct any required drainage improvements prior to
issuance of certificate of occupancy for any buildings within the development. Other
standard drainage and land alteration conditions of approval have also been added.
Although the applicant is not proposing to develop any housing on the property,
the CV-10 zoning would allow for its development, so standard fair share and affordable
housing conditions have been added.
Granting of the amendments would not be contrary to the General Plan,
Kona Community Development Plan, or Zoning Code. The Land Use Pattern
Allocation Guide (LUPAG) Map component of the General Plan is a representation of
the document's goals and policies to guide the coordinated growth and development of
the County. It reflects a graphic depiction of the physical relationship among the various
land uses. The LUPAG Map establishes the basic urban and non-urban form for areas.
within the County.
The LUPAG map identifies the rezone area and its immediately adjacent area as
High Density Urban (hdu), which includes general commercial, multiple family
residential and related services (multiple family residential—up to 87 units per acre). The
existing CV-10 zoning and any subsequent commercial development of the property will
continue to support a land use pattern consistent with the General Plan's hdu LUPAG
designation.
In addition, the continued CV-10 zoning is consistent with the following goals,
policies, and standards of the Economic and Land Use-Commercial and Housing
Elements of the General Plan:
Heather Kimball, Council Chair
and Members of the County Council
County of Hawai`i
March 15, 2024 •
Page 7
Economic
• The County shall provide an economic environment which allows new, expanded,
or improved economic opportunities that are compatible with the County's
natural and social environment.
• The County shall strive for an economic climate which provides its residents with
an opportunity for choice of occupation.
• The County shall strive for diversification of its economy by strengthening
existing industries and attracting new endeavors.
Land Use-Commercial Development
• Provide commercial developments that complement the overall pattern of
transportation and land usage within the island's regions, communities, and
neighborhoods.
• Commercial facilities shall be developed in areas adequately served by necessary
services, such as water, utilities, sewers, and transportation systems. Should such
services not be available, the development of more intensive uses should be in
concert with a localized program of public and private capital improvements to
meet the expected increased needs.
• • Distribution of commercial areas shall be such as to best meet the demands of
neighborhood, community and regional needs.
• The development of commercial facilities should be designed to fit into the locale
with minimum intrusion while providing the desired services. Appropriate
infrastructure and design controls shall be incorporated into the review of such
developments.
• Require developers to provide basic infrastructure necessary for development.
The Kona Community Development Plan (KCDP) was adopted by Ordinance No.
08-131 on September 25, 2008 by the Hawai`i County Council and amended by
Ordinance No 19-91 on September 18, 2019. The subject rezone area is situated within
the Kona Urban Area (KUA), situated partially within the Maka`eo and Kailua Village
Heather Kimball, Council Chair
and Members of the County Council
County of Hawaii
March 15, 2024
Page 8
Redevelopment Regional Center TOD Areas. Thus, the CV-10 zoning and commercial
development of the property would be consistent with the Kona CDP.
Since the last ordinance was granted, the Zoning Code was amended to add the
concurrency provision (HCC Section 25-2-46), which requires all rezonings (and
amendments thereto), address traffic, potable water, and civil defense siren concerns.
The amount of traffic that could be generated for commercial use in the rezone
area would not trip 50 peak hour trips, thus the requirement for a Traffic Impact Analysis
Report (TIAR) was not triggered. Furthermore, the applicant has completed roadway and
intersection improvements required under the existing ordinance to mitigate any traffic
that would be generated by the CV-10 zoning.
As discussed earlier, water is available for commercial development within the
rezone area subject to DWS and Fire Department conditions.
Finally, there is an existing civil defense siren located approximately 500 feet
from the subject property which covers the rezone area.
The request is not contrary to Chapter 205A, Hawaii Revised Statutes,
relating to Coastal Zone Management. The project site is situated approximately 0.4
miles from the nearest shoreline and is not situated within the Special Management Area,
there is no direct public access to the shoreline or mountains located within the project
site, and commercial development of the property will be required to follow County
drainage code for on-site drainage mitigation and to connect to the County sewer. As
such, the proposed development should not have any substantial adverse impacts on
coastal processes or conditions, nor will its approval be contrary to the objectives and
policies of Chapter 205A, HRS relating to Coastal Zone Management.
The development will to the extent feasible, reasonably protect native
Hawaiian rights if they are found to exist. In view of the Hawai`i State Supreme
Court's "PASH" and "Ka Pa`akai 0 Ka' Aina" decisions, the issue relative to native
Hawaiian rights, such as gathering and fishing rights, must be addressed in terms of the
cultural, historical, and natural resources and the associated traditional and customary
practices of the site.
Investigation of valued resources: The following studies/reports were conducted
for the project site: 1) Archaeological Studies/Plans —Archaeological Assessment, TMK:
(3) 7-4-015:15, Land of Keahuolu, North Kona District, Island of Hawaii dated March,
2007.; Plan for Archaeological Monitoring, TMK:(3) 7-4-015:15, Land of Keahuolu,
Heather Kimball, Council Chair
and Members of the County Council
County of Hawai`i
March 15, 2024
Page 9
North Kona District, Island of Hawaii dated November 2007; 2) Cultural Studies —A
Cultural Impact Assessment (CIA) for the lands within the ahupua'a of Keahuolu by
Helen Wong Smith; 3) Floral/Faunal Studies — As part of the Final Environmental
Assessment for the Kona Commons Project dated March 11, 2008, formal flora and fauna
surveys were conducted.
The valuable cultural, historical, and natural resources found within the project
site. According to the Haun and Associates Archaeological Assessment (AA), no
archaeological sites or features were identified within the subject property. However,
given the identification of archaeological sites on the adjacent property to the south, the
State Historic Preservation Division (SHPD) requested that an archaeologist be present
during all ground-disturbing activities as a precautionary measure. In response, Haun &
Associates prepared the aforementioned Archaeological Monitoring Plan (AMP), which
was approved by SHPD in 2008. and specified the following procedures:
• Notify DLNR-SHPD at the onset and completion of monitoring.
• Identify and evaluate the significance of archaeological remains revealed during
construction.
• Notify DLNR-SHPD upon discovery of potentially significant resources to determine
significance and the nature/extent of necessary data recovery or preservation
measures.
• Inform construction supervisors of the purpose of monitoring and the monitor's
authority. In pre-construction briefings and periodic briefings during construction,
inform personnel of procedures to be followed upon inadvertent discovery of human
remains and buried cultural deposits and artifacts.
• Analyze field data and collected materials.
• Prepare and submit a report to DLNR-SHPD within 180 days of project completion.
The CIA was based on a review of archaeological reports, government and other
historical records, Hawaiian language sources translated into English, and interviews with
long-term residents, including native Hawaiians familiar with the cultural history and
resources of Keahuolu. Research revealed limited cultural sites in the project area
(ahupua'a of Keahuolu7). Contemporary or continuing cultural practices include gathering
of ocean resources in offshore waters and gathering of the endemic plant maiapilo or pilo
from the 300-foot elevation seaward. Pilo is used for medicinal purposes and is not listed
Heather Kimball, Council Chair
and Members of the County Council
County of Hawai`i
March 15, 2024
Page 10
as a threatened or endangered species. The CIA determined that the Kona Commons
project (of which the rezone area is a part) would have limited impact on Hawaiian
cultural resources, beliefs, and practices. Care should be taken to preserve the habitat of
endemic plants such as pilo and to assure access for gathering activities. It should be
noted that the flora study included in the EA did not identify pilo within the subject
property.
•
The biological surveys found that there are no designated or proposed critical
habitats for endangered plant or animal species located within the project area. The study
also concluded that no federally listed threatened or endangered plant or animal species
appear to be present on the property, nor are there any rare animal species or uniquely
valuable vegetation types.
Possible adverse effect or impairment of valued resources and feasible actions to
protect native Hawaiian rights: Inasmuch as the previously mentioned studies did not
identify any valued resources or practice of native Hawaiian rights on the subject parcel,
it is unlikely that its development will generate an adverse effect or impairment of the
same. However, conditions of approval will require the applicant to implement the
archaeological monitoring plan and to follow necessary mitigation procedures in the
event of an inadvertent find of archaeological remains while developing the property.
With implementation of the mentioned conditions of approval the proposed action will
not affect traditional Hawaiian rights.
Deletion of Timed Performance Conditions Vs. Further Time Extensions
Historically, performance conditions have been added to rezone ordinances to
ensure compliance with conditions of approval in a timely fashion, provide a reasonable
timeframe for required infrastructure improvements, allow for periodic checks to ensure
that the zoning is still appropriate for the area based on the general plan and community
development plans, and to curb speculation and resale of undeveloped properties.
In this case, the Director is recommending deletion of the remaining timed
performance conditions (Condition B and C) rather than granting another time extension
for the following reasons:
1. The subject property, like the other lands in the Keahuolu ahupua'a are owned
by the applicant and like the surrounding properties, will be developed under
leasehold and not sold, thus mitigating the concern over land speculation and
resale.
Heather Kimball, Council Chair
and Members of the County Council
County of Hawai`i
March 15, 2024
Page 11
2. The rezone area and subject parcel is situated in an area that was originally
and has been continuously zoned and developed for industrial and commercial
uses.for nearly sixty years and is one of the few remaining lots yet to be
developed. As such, no other zoning or land use would be appropriate in the
area and it is highly unlikely that future land use plans will recommend
changing the existing land use pattern.
3. The applicant has completed off-site infrastructure improvements required by
the current ordinance to accommodate the commercial development of the
subject property. This, combined with the availability of required utilities and
services makes the site "shovel ready" for development subject to the
remaining rezoning conditions and current development codes, regardless of
how long it takes to lease the property.
4. Had the State not needed part of the property in 1971 to accommodate the
widening of the highway, the rezone area would likely have been similarly
zoned CV-10 at that time, and not subject to any conditions of approval under
Ordinance 400. This creates a situation where any subsequent time extension
condition will only apply to the 0.874-acre rezone area, and not the remainder
of the larger 4.61-acre property of which it is part. Thus, deleting the timed
performance conditions for the rezone area will bring the divergent
development requirements of the entire property into alignment.
Finally, as deletion of Conditions B and C will eliminate the last timed conditions
and all the other substantive conditions of approval have been met, the Director also
recommends deleting Condition J, which requires the applicant to submit an annual
progress report.
Lastly, this recommendation is made with the understanding that the applicant
remains responsible for complying with all other applicable governmental requirements
in connection with the proposed use, prior to its commencement or establishment upon
the subject properties. Additional governmental requirements may include the issuance
of building permits, compliance with the Fire Code, installation of improvements
required by the American with Disabilities Act (ADA), among many others. Compliance
with all applicable governmental requirements is a condition of this approval; failure to
comply with such requirements will be considered a violation that may result in
enforcement action by the Planning Department and/or the affected agencies.
Heather Kimball, Council Chair
and Members of the County Council
County of Hawaii
March 15, 2024
Page 12
Based on the preceding findings, the Planning Director recommends that a favorable
recommendation be forwarded to the County Council to amend Ordinance No 00 90 by
deleting Conditions B, C, D, F, and K in their entirety. In addition, as the ordinance is 23
years old and several of the remaining conditions are inconsistent with standard condition
language in current rezone ordinances, the Planning Director recommends that the existing
conditions be deleted entirely and be replaced with a new set of conditions that address
requirements specific to development of the rezone area moving forward and reflect the current
standard language for conditions of approval.
The accompanying draft bill to amend Ordinance No. 00 90 is provided for your
consideration. Please note the proposed conditions of approval attached to the draft bill. Material
to be deleted is bracketed and struck through; new material is underscored.
This recommendation does not, however, sanction the specific plans submitted with the
application as they may be subject to change given specific code and regulatory requirements of
the affected agencies.
The Planning Department's background report, recommendation report, PowerPoint
presentation, and public testimony are available for review at the following Laserfiche WebLink
address: https://records.hawaiicounty.gov/WebLink/1/fol/128335/Rowl.aspx
Should there be any questions, please feel free to contact Planning Program Manager, Maija
Jackson at (808) 961-8159.
Sincerely,
&a-ba#-a De'ahco
Barbara DeFranco(Mar 15,202413:31 HST)
Barbara DeFranco, Chairperson
Leeward Planning Commission
P\wp60\PC\PCC2024-1\LLi l iuokalaniTrustPL-REZ-2023-0511pc
Enclosure: Draft Bill
cc via email w/draft bill: Bryan Esmeralda
Department of Public Works
Department of Water Supply
Jean Campbell, Esq., Deputy Corporation Counsel
Suzanna Tiapula, Esq., Deputy Corporation Counsel