HomeMy WebLinkAboutMIN LAAC 2024/06/04 (2022-2024)Committee on Legislative Approvals and Acquisitions
27t' Session
Hawaii County Building
25 Aupuni Street
Hilo, Hawaii
June 4, 2024
CALL TO The regular meeting of the Committee on Legislative Approvals and Acquisitions
ORDER: was called to order at 1:01 p.m., in the Council Chambers, Hilo, by
Mr. Holeka Goro Inaba, Chair.
ROLL CALL:
Present: Mr. Holeka Goro Inaba, Chair
Ms. Michelle M. Galimba, Vice Chair (via videoconference from Kona)
Ms. Jenn Kagiwada, Member
Mr. Matt Kaneali`i-Kleinfelder, Member
Ms. Ashley L. Kierkiewicz, Member (came in later)
Ms. Heather L. Kimball, Member
Ms. Susan L. K. Lee Loy, Member
Ms. Rebecca Villegas, Member
Absent & Excused: Ms. Cindy Evans, 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: The following individuals registered to speak and came forward when called by
the Chair:
Christopher Delaunay:
(representing Pacific Resource
Partnership)
Tom P6haku Stone:
Pane Meatoga III:
(representing Local 3
Operators Union)
E. Renee Robinson:
Bill 169 (Comm. 896), in support.
Bill 169 (Comm. 896), in opposition.
Bill 169 (Comm. 896), in support.
Bill 169 (Comm. 896), in opposition.
Marty Wakat: Bill 166 (Comm. 885), in opposition.
LAAC-27
ORDER OF
RESOLUTIONS:
Cindy Iodice:
(representing Flagman Inc.)
Wayne Perrin Jr.:
(representing Local 3
Operators Union)
Robert Harris:
Karie Wakat:
Joel Gimpel:
(representing Pualani Estates
Homeowners Association)
Renee Inaba:
John Powell:
Laura Johnson:
Lamaku Mikahala Roy:
(representing Ahu`ena Heiau)
June 4, 2024
Res. 532-24 (Comm. 895), in support.
Bill 169 (Comm. 896), in support.
Bill 169 (Comm. 896), in opposition.
Bill 166 (Comm. 885), in opposition.
Bill 169 (Comm. 896), in opposition.
Bill 169 (Comm. 896), in opposition.
Bill 169 (Comm. 896), in opposition.
Bill 169 (Comm. 896), in opposition.
Bill 169 (Comm. 896), in opposition.
The Chair directed the Committee to proceed to the next order of business,
Order of Resolutions.
Res. 532-24: AWARDS THE COUNTY OF HAWAI`I "WAIWAI" NONPROFIT
GRANTS-IN-AID FOR THE FISCAL YEAR 2024-2025
Allocates $2,027,500 to 58 eligible nonprofit programs, pursuant to
Section 2-139, Hawaii County Code.
Reference: Comm. 895
Intr. by: Mr. Inaba
; and
Comm. 895.1: From Legislative Approvals and Acquisitions Committee Chair Holeka Goro
Inaba, dated May 21, 2024, transmitting a list of Waiwai Grant Applications that
were not recommended awards for the 2024-2025 Fiscal Year.
Motion to Approve: Ms. Lee Loy moved to recommend adoption of Res. 532-24.
Seconded by Ms. Kierkiewicz.
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CHR. INABA: Council Member Lee Loy will be giving us a summary of the
actions taken by the Ad Hoc Committee and where we are now with the
resolution before us.
MS. LEE LOY: Thanks, Chair. Well yeah, just to level set everyone, you know,
the Committee took in all the applications, we went through the scoring rubric,
we set that information on the other agenda for, you know, the rest of my
colleagues to take a look at. At that meeting at that time, there was a lot of
questions around the qualifications and why so many, or how many applications
were determined to be ineligible. And so, under Communication 895.1 is a table
of all the various applications, what their request was, and an explanation as to
why they either didn't meet the minimum qualifications or their deficiencies in
their application.
Council Member Inaba and I continue to remain committed to allow for us to do
info training or video training online, that's housed on our Waiwai grant landing
page where so many of these organizations can either self -resolve or get good
information so that they can write a robust application form for us to evaluate.
I'm asking for my Council Members' support on this. And then this is actually a
little new. In the past we used to do it a little differently, but Council Member
Inaba found a very quick and efficient way for us to put this in our budget while
not having to pound it out while we're going through the budget permit process.
So, I ask for my colleagues' support.
CHR. INABA: Thank you, Council Member Lee Loy. And just a little bit extra
information. The previous communication that first transmitted the
recommendations from the Ad Hoc Committee was Communication 761.2; 196
total applications received; 60 were deemed ineligible prior to transmittal to us
for scoring. In the end, ultimately, we have here a resolution that awards less
than the full amount because the Ad Hoc Committee, with assistance from
Corporation Counsel, this year really took a hard look to ensure that our awards
were in full compliance with the Code. And with that, we do have a new staff
member starting this year who is going to help further refine the application
process and provide, hopefully, it'll never be comprehensive, but as
comprehensive a list as possible of things and programs that the Waiwai or the
County in general do not fund. So, there are no partial awards here. It was either
you were granted the full request, or you were not recommended. So, we're
happy to take any questions.
I do want to point out again that the unprogrammed funding was transferred
during the budget hearing to our contingency relief funds (CRF). So, for those
nonprofits, especially, for the body, for those nonprofits who are listed in
Communication 895.1, should some of those organizations reach out directly to
you asking for support of the contingency relief funds, I would ask that you
consider it being that they did apply for this program, and it might have just been
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June 4, 2024
something small that the Committee couldn't support awarding their full funds.
So, happy to take questions at this time. Council Member Kagiwada.
MS. KAGIWADA: Thanks. No questions, obviously, supporting this. I was
also on the Ad Hoc. I just want to state that, you know, I know those of us on
the Ad Hoc were actually disappointed that we weren't able to award to all the
organizations, all doing such good work for our community. As my colleague
stated, some were for very minor technical reasons, and I will be looking to talk
to those organizations in my district and those doing work around the County to
see how I can support with those extra contingency relief funds.
I just appreciate all the hard work that went into this. I do think we're getting
better but we're going through a little growing pains right now. So, this one was
a little hard sometimes but understanding that we're doing the best we can. I
think we are getting better, and we will continue to offer the support to the
organizations so that fewer and fewer hopefully don't get funding just because of
a small technicality or because they submitted for something that we cannot
fund, and they just weren't aware of it. So, looking forward to continuing to
improve this process, and thank all the people that worked on this. I yield.
CHR. INABA: Thank you. Council Member Villegas.
MS. VILLEGAS: Yeah. Thank you, guys. Having served on this Ad Hoc
twice, I understand how time-consuming it is and how impactful it is for our
community. I have a quick question. Is there, and perhaps I'm missing it, but
I'm wondering if there's any documentation that reflects the geographic
distribution of funds. I know these are conversations we'd have in years past
with the desire to ensure that funds are equitably distributed to nonprofits around
the island.
CHR. INABA: There isn't one right now, but when this does go forward to
Council, we can have something prepared to be attached at the Council hearing.
MS. VILLEGAS: That would be great because that has been a concern about
equitable distribution of resources. The other reminder I just need, I know that
we changed the parameters for how many grants and organization could apply
for. Would you remind me the number that that is?
CHR. INABA: This year we capped organizations to two applications, each
application being up to $50,000.
MS. VILLEGAS: Okay. I guess then my question is because I see organizations
here, the same organization listed three times and having, according to this
proposal, receiving three awards for $50,000 each.
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CHR. INABA: Sure. And the rules on the application further specify that if a
nonprofit was serving as a fiscal sponsor to another organization or another
external program, they could serve. So, the application delineated which
applications they were serving as the service program organization versus at least
a fiscal sponsor.
MS. VILLEGAS: Okay. Was there anything included in their fiscal sponsorship
which indicates the percentage they would be charging the nonprofit that they're
serving as the fiscal sponsor for?
CHR. INABA: The County Code caps it at 10 percent admin fee. So, if there
was a fiscal sponsor that would be between them, but we would be looking for a
total 10 percent max. If it exceeded, then they're not on this list.
MS. VILLEGAS: Okay. That helps explain a couple of things. Yeah. I share
in the remorse for this long list of organizations that weren't able to be funded,
and I note it appears a number of times in the last column is that the application
requests funds for expenses not aligned with the County Code, and that seems to
be the prevalent, red flag, that eliminated them from consideration. As
challenging as that is, I also am grateful that there is more attention being paid to
ensuring that our grant-in-aid program abides by our County Code, and that we
are doing everything on the up and up.
One of the other things that I remember hearing a lot about when I was serving
was this kind of double dipping. We have a lot of nonprofits that get a lot of
funding from our taxpayers, and they get it through grant-in-aid, and they get it
from the Housing fund, and that's concerning to be me because the intention of
running a nonprofit is to at some point, make it so you don't have to be
continuing to come back for public resources and funding in order to perpetuate
your work. So, just a comment of mine on that.
And yeah, disappointed that so many didn't make it, grateful for those that have.
I am grateful that I don't see too many organizations that are listed here that are
receiving that have more than three and that are working as fiscal sponsors
because at a $50,000 grant, a fiscal sponsor is making five grand to be a go
through, and that's a lot of money when we're talking about tax dollars. So with
that, I'll yield. I'll be supporting this today and thank you for providing the
geographic reflection. I appreciate it. I yield.
CHR. INABA: Thank you. Council Member Kimball.
MS. KIMBALL: Thank you, Chair, and thank you to all the members of the Ad
Hoc Committee that worked hard on this. I know it does take quite a bit of work.
I just wanted a quick assessment from any of the Ad Hoc Committee members as
to as far as that statement that didn't align with the County funds or County
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Code. How much of that —do you think more of it was from the public purpose
side and that definition or more of it was from the allowable cost with respect to
program versus administrative costs? I just wanted to get a sense of —if there
was a clear prevalence of one over the other.
CHR. INABA: Council Member Lee Loy.
MS. LEE LOY: Thanks. Thank you, Chair. It was actually two -fold. In their
narrative, describing the public purpose, some of them missed the mark. So,
some of the conversation we had was about that type of training and Judge
Strance has served as a great mentor in that space. Then the other part that
seemed to challenge them was the budget sheet. And for me, I focused on that
budget sheet because that builds the contract on the deliverable. So, if the budget
sheet was challenged or confusing, it would lead to a confusing contract and then
we wouldn't be able to identify the deliverable in the contract.
So, if we could provide more education around how we build the contract, I think
we will have this next cycle that comes through, better applications, being very
aware of what the end product we're looking for, and then telling their story, I
think we'll get better this next cycle.
MS. KIMBALL: Yeah, great. That helps a lot. So, my follow-up question then
again to the Ad Hoc Committee members would be, when informing these
various nonprofits of the decision, were they provided specific guidance as to
why their application did not meet Code? How are you addressing that
information —closing the loop of information?
CHR. fNABA: We'll be submitting pending final action on this resolution.
Those not awarded will be notified and offered the opportunity to work with our
staff to review their specific applications if they choose. We won't be sending
out 90 specific detailed letters, but we will be offering them the time and space to
come and review so they can understand very clearly what was wrong with the
application.
MS. KIMBALL: Great. Thank you for that. You know, I think as has been
mentioned before, it's definitely difficult to look at this list and see programs that
we've funded year after year. At the same time, this is going to be no solace to
those organizations. If this does feel like a ripping off the band aid moment, it's
something we needed to really tighten up and this was going to have to happen
eventually. So, I'm just hopeful that between us having now a person dedicated
to these programs, our continued efforts to improve the application and education
process around those applications, you know, we'll have a really tight and robust
and defensible program with respect to the distribution of these funds. And I
thank you again for all your hard work as a team. Thank you.
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CHR. INABA: Thank you. Council Member Lee Loy.
MS. LEE LOY: Yeah, and to add to that regarding the dedicated staff, we're
also looking for feedback from the organizations because there seems to be some
confusion on the documents that they need to provide as far as the clearance and
their tax paperwork, and the timing on when they're getting their tax paperwork
in. So, there might be some future refinement on that documentation because
we're asking for it right at the end of the year and they're, like all of us, doing
taxes, right, at the beginning of January. But they also need that document to
submit to us to qualify for the grant. So, we're going to have to think on that a
little bit more.
CHR. INABA: Thank you, Council Member Lee Loy. Anything in Kona?
MS. GALIMBA: Thanks, Chair. Yes. I just wanted to sort of address Chair
Kimball's question a little bit about —so, my experience on some of the problems
that we sort of faced in scoring these applications. I think, I mean as we all
know, we ourselves as a Council have been struggling quite a bit this year with
our own understanding of public purpose in our CRF funding as well as indirect
costs. I think if you looked at the instructions, some of —I think we were very
strict in our application and some of the ideas that we've implemented were
more implicit than explicit. So, I think definitely would want to be more explicit
in next year's round of this and the instructions that we provide folks around our
definitions of public purpose and indirect costs, because I think some of the
applicants were working with an idea of indirect costs that might have been sort
of industry standard to some degree around nonprofit grants. So, I think a lot of
them were probably surprised. Although, if you read the instructions carefully
you could get that from them. So, I think we definitely want to be really clear
about that part.
I think the other thing too is something that I kind of worry about is that we're
almost rewarding folks for being able to just sort of be very, I don't know what
the right word is but being able to put a lot of words together that sound really
good versus not having that capacity but having really important projects. So, I
think that's something that we need to sort of struggle with or could discuss
amongst ourselves more because I really, really want to make sure that we don't
sort of leave folks behind, to put it simply. So yeah, those are some of my
reflections on this and I think we have been getting better. I think this set round
of applications were much clearer especially around sort of the logic model and
kind of data we could get from that as well as the budget. So, continuing
improvement, I think in getting and asking for better data from our applicants but
still more room for refinement. Thanks.
CHR. INABA: Thank you, Council Member Galimba. There being no further
discussion, I do want to disclose that part of our County Code requires the
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applicants to disclose any relationship to the Corporation Counsel, directors of
departments, or anyone overseeing awarding or reporting on grants. So, one of
the nonprofit organizations in this resolution, La`i`opua 2020, is a nonprofit
where I have an immediate family member working. I did not score the
application or have any hand in that award, which can be confirmed by other
members of the Ad Hoc Committee and the scoring sheets. I look to my
colleagues if anybody would like me to recuse but it's one of many
recommendations here. Alright. There being none, there's a motion on the floor
to forward Resolution 532-24 to Council with a favorable recommendation. All
those in favor please say "aye."
Vote on Res. 532-24: The motion to recommend adoption of Res. 532-24 was
(Approved) carried by the following voice vote:
Ayes: Committee Members Galimba, Kagiwada,
Kaneali`i-Kleinfelder, Kierkiewicz, Kimball,
Lee Loy, Villegas, and Chair Inaba — 8.
Noes: None.
Absent: Committee Member Evans — 1.
Excused: None.
CHR. INABA: We will take up now, Bill 166.
BILLS FOR The Chair directed the Committee to proceed to the next order of business,
ORDINANCES: Bills for Ordinances.
Bill 166: AMENDS SECTION 25-8-3 (NORTH KONA DISTRICT 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 — 20 ACRES (A-20a) TO
FAMILY AGRICULTURAL — 5 ACRES (FA-5a) AT NORTH KONA,
HAWAI`I, COVERED BY TAX MAP KEY: 7-3-024:003
(Applicant: Ryan Leese) (Area: 21.942 acres)
The Leeward Planning Commission forwards its favorable recommendation for
this change of zone request, which would allow the applicant to subdivide the
property into four lots. The property is located on the southwest corner of the
Kaloko Drive/Ha6 Street intersection in the Kaloko Mauka Subdivision.
Reference: Comm.885
Intr. by: Mr. Inaba (B/R)
Motion to Approve: Ms. Lee Loy moved to recommend passage of Bill 166 on
first reading. Seconded by Ms. Kierkiewicz.
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CHR. INABA: I believe we have the applicant and the representative for the
applicant here, and we have Planning staff as well. Please go ahead and give us
an introduction of the request.
(Note: At this time, Planning Consultant Daryn Arai and property owner
Seth Roosevelt came forward to address the members of the Committee)
MR. ARAI: Good afternoon, Chair Inaba, members of the Committee. My name
is Daryn Arai. I'm a resident of Hilo, assisting the applicant, Ryan Leese, with
this change of zone application. Seated to my right is Seth Roosevelt. He is one
of the landowners and he is here representing the applicant. So, the request before
you for this lot in Kaloko mauka is affecting one of the last legacy lot, 20 acres,
that is currently zoned Ag-20. With that zoning, the uses and the restrictions that
apply to it is governed by the Zoning Code. As you know, that could possibly
allow agricultural activities and related types of uses and facilities that could
result in the clearing of the land from pin to pin for agricultural type of activities.
It could also allow for various types of facilities and uses as allowed by the clove
for agricultural zoning districts, which could include farm dwellings and
additional farm dwellings on the property.
So, what the applicant is presenting as part of his request for a family agricultural
minimum lot size of five acres, is to allow for the subdivision of this property into
four lots. Where this property resides is below the elevation, is at the elevation
that would support minimum lot sizes as small as three acres resulting in possibly
seven lots on this property. But the applicant has elected to go with a five -acre
minimum lot sizes because they feel it is most appropriate for them. There are
three current landowners of the property, and they will end up residing on the
property as well as one of their friends who is a local doctor.
For many decades now, the practice of rezoning lands in this area strikes the best
balance between preserving the important forest canopy in Kaloko mauka as well
as providing the landowners with reasonable use of its property. As you heard
this morning, there were testimony concerned about the destruction of the forest,
the impact to habitats and to species, as well as to traffic. With the Ag-20, as it
currently stands, there are no specific controls beyond what's expressed in the
Zoning Code. Should this change of zone request be approved, you will have
then crafted an ordinance that is specific to this particular property and
implementing specific controls that will ensure the protection of the forest canopy
while managing the scope of uses that could be permitted on the property.
For example, there would be a requirement to protect at least 80 percent of the
forest canopy to be retained. It would ensure structure setbacks of at least 100
feet from the area roadways with 30-foot property boundary setbacks. It would
prohibit the construction of a second dwelling on the property. All of these
controls would be put in place when none exists now. In addition, and in respect
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to the concerns we got in traffic, we understand that. You know, traffic has
always been in a concern even with other rezonings similar to this. But the
applicant will be contributing its fair share of commitments to the tune of almost
$50,000 toward improvements to the Kaloko intersection with Highway 11.
So, we believe that, again, approving this change of zone would strike the best
balance between use of the land and the preservation of the important Kaloko
Forest canopy. So with that, we stand ready to answer any questions that you
may have.
CHR. fNABA: Thank you. Mr. Roosevelt, do you have anything further to add
at this point?
MR. ROOSEVELT: No. I do not. Thank you.
CHR. INABA: Alright. Thank you. We have Planning staff joining us; Director
Kern on Zoom. Before you begin, Director, I believe this ordinance was brought
over by the Mayor. Just confirming that you were overseeing this for the
Planning Department, not Deputy (Jeffrey) Darrow.
(Note: At this time, Planning Director Zendo Kern came forward to
address the members of the Committee.)
MR. KERN: That's correct, Chair and Members. Zendo Kern, Planning
Director. This was the one that I was overseeing. Yes.
CHR. INABA: Okay. Thank you. Do you have anything further to add on this
application?
MR. KERN: Nothing further to add than what the applicant's representative has
stated, but happy to answer any questions.
CHR. INABA: Okay. Thank you. Opening it up then for discussion starting here
in Hilo. Council Member Villegas.
MS. VILLEGAS: Aloha and thank you for being here. You answered one of my
questions by how many owners there were of the property because you've
indicated that you're just one of three owners. So, in the request to subdivide
you're creating essentially what we call, or I've called, gentlemen farms. So, you
end up with five acre lots on ag land. I am looking through the documents here
and some of the things that are jumping out to me, number one is, "No
professional flora or faunal surveys were conducted of the subject property;
however, the applicant conducted a review of information associated with similar
rezonings in the general area which did not disclose any habitats associated with
protected species of plants or animals, thus they do not believe that any
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endangered flora or faunal resources are likely to be located within the property."
That's weak. I spend time in Kaloko and have a number of friends that have
20-acre parcels there and I'm very aware of the number of endangered and
precious flora and faunal species up there.
Here we're talking about investigation of valued resources, "No archaeological
survey of the site was conducted as part of the application." And it talks about it
being a part of the Kona field system, which is listed in the state inventory of
historic places. It was part of a "reconnaissance survey and test excavations in
1970 and 1971 by Hu`ehu`e Ranch." The developers of Kaloko Mauka
Subdivision talks about the National Park published a report in 1991 entitled, An
Ahupua`a Study, and the "study also identified remains of an agricultural field
system up to the 3,500-foot elevation at certain locations." The State Historic
Preservation Division (SHPD) doesn't have an objection but "requests the
opportunity to review any permits involving future ground disturbance associated
with the development of the project.... The U.S. Fish and Wildlife Services
conducted studies of the general area over the years and have identified numerous
endangered and native bird species in the native forest in the subdivision," which
directly contradicts the statement that was made earlier.
In a part that says "The valued cultural, historica,l and natural resources found in
the rezoning area: The department is not aware of any cultural or historic
resources on the property. According to the applicant, there is no evidence of any
traditional and customary native Hawaiian rights being practiced on the property.
The property is covered in native forest." I would like to humbly remind the
people on the dais and here today that the forest is the Hawaiian culture. There is
no separation between the people and the land and the place that they have
recognized in perpetuity as their responsibility to steward.
"Possible adverse effects or impairment of valued resources: Native plants may be
destroyed by construction or ground alteration. There is no evidence that the flora
in the area is particularly desired or used for cultural practices." Once again,
Vole. That is not a true statement, and it's really disturbing that here in 2024, we
continue to have land management documents come across our desk that make
statements like this.
"Feasible actions to protect native Hawaiian rights: While there is no evidence of
any traditional and customary Native Hawaiian rights being practiced on the
property, a condition of the approval will require that construction ceases until
SHPD provides approval to continue work.
Sir, I appreciate that this is, you know, you purchased a piece of property. I
mean, wow, to have the opportunity to live on five acres in Kaloko, but we're at a
tipping point. This is one of the last cloud forests in existence, and the continued
degradation of that ecosystem. And unfortunately, I have seen it happen year
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after year and new property owner after new property owner, some not even
getting permits for grubbing and grading and just going in and bulldozing the
forest. And what do you do after that? You can't force somebody to put it back.
Fines, depending on the property owner, are negligible. So, I have serious
concerns with this, and I hope my colleagues will heed and take in take into
consideration some of the discrepancies listed in this document. I yield.
CHR. INABA: Thank you, Council Member Villegas. Council Member
Kierkiewicz.
MS. KIERKIEWICZ: Thank you, Chair. You know, I just want to note, in the
Planning Department's background report, a couple of resolutions,
Resolution 330-96 and 58-97. I just find it so interesting that so much reverence
is being given to a resolution that directs how, if any development happens in a
particular area, in this particular area, that we do as much as we can to protect
native forest ecosystems. And so, I just appreciate the Planning Department
taking that into consideration and actually putting it in as a condition of this
ordinance.
One of the things though that I don't see included, and Director Kern, correct me
if I'm wrong here, but one of the recommendations you have here is restrictions
against a second dwelling on each lot. Can you help me find that particular
condition in this draft ordinance? Because that was one of your recommendations
but I'm having a difficult time finding it in the draft bill before us.
MR. KERN: Yeah. I don't believe that there is a restriction. Within the
condition, it states that the applicant could put one on there.
MS. KIERKIEWICZ: It says here you recommend a restriction against a second
dwelling on each lot in your report. And so, that was one of your
recommendations, but I don't see it as a condition of the ordinance. Mr. Arai, do
you want to chime in here?
MR. ARAI: Appreciate that. That restriction is contained within Condition F, as
in Frank.
MS. KIERKIEWICZ: Okay. Thank you.
MR. ARAI: So, it reads, "Restrictive covenants in the deeds of all proposed lots
shall give notice that the terms of the zoning ordinance prohibit the construction
of a second dwelling unit and condominium property regimes on each lot."
MS. KIERKIEWICZ: Perfect. I just wanted to make sure that I saw it with my
own eyes represented in the ordinance. Thank you very much for that
clarification. I yield.
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CHR. INABA: Thank you, Council Member Kierkiewicz. Any further
discussion? Going over to Kona.
MS. GALIMBA: Thank you. Yes. I guess, you know, it's always hard to see
sort of lots getting smaller. But I have to say that I am —that the 80 percent forest
cover is a very big thing. That's a very high percentage, and I don't think it's
really required anywhere. So, that seems to me, a very sincere effort to preserve
the forest that is there. That, along with the restriction on the second dwelling,
seems like pretty strong conditions to keep this area as natural as possible given
that it is in a residential area. And looking at the map, all of the lots around it are
of similar, if not smaller sizes. So, I think, for me, it's something of a matter of
various and not sort of requiring something different for one lot versus the other.
If it was just, if they didn't have the 80 percent forest cover, I probably would not
support it, but that is a very, even noble restriction on their use of the lots. So, I
will be supporting this. Thanks.
CHR. INABA: Thank you. Coming back to Hilo. Council Member Lee Loy.
MS. LEE LOY: Thank you, Chair. You know, this is something that hooked me,
Mr. Arai, was this is actually one of those you go through a process to protect it
more. And what I really like about the protection that are outlined in the bill is
it's recorded on the deed. This is not about time extensions or Planning
Department holding them accountable, it is attached to every single new lot
created for them by deed restrictions.
In addition to that, it's kind of in that transition area where the applicant, owners,
could have picked the three lots, but they went with the adjacent property, which
is five lots, keeping the continuity of all of those lots too. I'm in support of this.
There was another application many, many years ago, when Maile David and
Karen Eoff were on the Council, and that's when I first became aware of these
covenants that are attached to the lots up there. And like my colleague,
Ms. Kierkiewicz, I just find it amazing that the authors of that resolution were
able to stick these types of safeguards on that area, by resolution, which we
adhere to today, codify it through the change of zone application, and then record
it on the deed. So, I am in support of this project. Thank you so much. I yield.
CHR. INABA: Thank you. Council Member Kaneali`i-Kleinfelder.
MR. KANEALI`I-KLEINFELDER: Thank you, Chair. It's an interesting,
interesting ordinance today. Thank you. I like the 80 percent forest restriction.
That's a nice condition. Question for you folks. So, number three, under G; if
more than 20 percent of the property has been cleared or grubbed, I was looking
for the "if', "then." "Then" is there but it's just the reforestation program —this is
an interesting paragraph. Is there something missing within that paragraph?
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June 4, 2024
MR. ARAI: This is Daryn Arai. I don't believe so. Although that particular
Section 3 is irrelevant because it's there for those properties that have already
been partially cleared. This property has not. So, in essence, it really doesn't
apply.
MR. KANEALI`I-KLEINFELDER: Okay. That's helpful actually. So, what
happens if they do clear more than 20 percent of the lot?
MR. ARAI: No, they can't because Number 3 only applies if the property already
is partially cleared prior to this ordinance taking effect. The other provisions of
this ordinance that speak to the preservation of at least 80 percent of the project
site, will prevail. So, that's why they have to come up with a forest management
plan. And that forest management plan will then assess the current condition of
the property, the proposed homesites to be constructed, all their driveway
locations, all of those things have to be prescribed so that way, they can show like
where the minimum 30-foot side setbacks are, the 100-foot roadway setbacks. All
those things will be shown on that forest management plan.
MR. KANEALI`I-KLEINFELDER: Okay. And then who—
CHR. INABA: Sorry. I'm going to stop. I want to make sure that things being
said are accurate. If Corporation Counsel can come in and reconfirm
Mr. Arai's statement regarding Condition G-3. Right now, it's saying, "If more
than 20 percent of the subject property has been cleared or grubbed prior to the
submittal of the Forest Management Plan...." Mr. Arai stated that it's only
applying if land has been grubbed prior to the passage of this ordinance. But I'm
not reading it the same, so I want to make sure any further discussion is based
accurately.
(Note: At this time, Corporation Counsel Elizabeth Strance came forward
to address the members of the Committee.)
MS. STRANCE: Good afternoon, Elizabeth Strance, Corporation Counsel. I'd
have to sit with the language and view it as well. I understand that two different
interpretations, but I haven't reviewed this in detail so, I don't want to read and
interpret it on the fly.
CHR. INABA: Alright. Thank you. We'll go back to Mr. Kaneali`i-Kleinfelder.
If you could provide that shortly, I really appreciate it. Thank you.
MS. STRANCE: Okay.
MR. KANEALI`I-KLEINFELDER: So then proceeding on the —like anything
else in the County, complaint -driven process I'm assuming, correct? So, if there
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June 4, 2024
was clearing that did occur that did go past the 20 percent requirement, then what
would be the course of action and by who?
MR. ARAI: You can confirm this with the Planning Department, but once this
ordinance is adopted it becomes part of the Zoning Code. So, all the Zoning Code
enforcement provisions will then kick in, meaning that it would be a violation of
the ordinance, therefore, violation of the Zoning Code. The department can take
enforcement action as necessary.
MR. KANEALI`I-KLEINFELDER: Okay. To the Planning Director.
MR. KERN: Sure. Yeah. I'm tracking with what Mr. Arai was saying. In
addition, there could be Department of Public Works violations for grading and
grubbing, it could be attached to it potentially depending on how it's done, as well
as if the department and the Council saw fit, could move to revert the zoning back
to take away that Ag-5 zoning.
MR. KANEALI`I-KLEINFELDER: Even with potential work having been done
on the —
MR. KERN: Possible. Messy. Not ideal. But that's basically more or less what
Condition Q would call for. But yeah, essentially, there would be zoning
violations, fines, a notice of violation, they would have to remedy it or there
would be fines occurring on a daily basis, which can go up to $500 a day at a
certain point.
MR. KANEALI`I-KLEINFELDER: Okay.
MR. KERN: So, there is teeth within it.
MR. KANEALI`I-KLEINFELDER: Thank you. That's what I was looking for.
I yield, Chair. Thank you, Mr. Arai.
MR. ARAI: Mr. Chair.
CHR. INABA: Council Member Kagiwada.
MS. KAGIWADA: Thank you. I just wanted to make sure that I'm checking for
understanding here. Did I hear you say, Mr. Arai, that currently, the way it's
zoned, that there could be clearing of this entire forest pin to pin, there's nothing
stopping that at this point?
MR. ARAI: That is correct. And maybe I'll take this opportunity to elaborate
further on Council Member Kdneali`i-Kleinfelder's comment. We understand
that there may be this gap, you know, between the submittal and recording of the
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June 4, 2024
restricted covenants regarding the clearing of the property that the applicant will
be willing to have some type of restricted language saying no clearing of the
property shall occur until such time those things are put into place, the covenants.
That way, as we sit here today and the recordation of those restrictive covenants,
they won't touch the land. That will at least provide you with some assurance to
fill in the gap, so to speak, that nothing will occur prior to the recordation of these
restrictions. I'm just throwing it out there.
MS. KAGIWADA: Okay.
MR. ARAI: And I just thought of that, so maybe we should get confirmation
from the applicant's representative.
MR. ROOSEVELT: Yeah. That's fine.
MS. KAGIWADA: Okay. And that's including the Forest Management Plan or
something like that? Okay.
MR. ARAI: That is correct.
MS. KAGIWADA: So, nothing would be done until that is completed or
submitted?
MR. ARAI: Yes, that would provide additional comfort to the Council Members.
MS. KAGIWADA: Okay. I'm debating on this one. I just want to say for the
record I guess is that, for me, hearing from the other people who are in these three
acres lots with their single-family homes all around, who say they don't want this
because of traffic and stuff, that does not hold water with me. Just because you
got yours, doesn't mean that nobody else should get theirs. And for me, it's more
an issue of what is going to really protect the land more, going with this or not
going with this. So, I'm going to sit here a little bit more with it and read a little
bit more. And thank you for bringing this forward.
CHR. INABA: Council Member Villegas.
MS. VILLEGAS: Yeah. Something I see in here is there aren't enough water
rights. Is there something indicated? I read it that they'd have to be pulling water
credits. I may have misinterpreted that. So, I have a quick question for you, sir.
When did you buy the property?
MR. ROOSEVELT: Almost a year ago.
MS. VILLEGAS: Okay. So, fairly recent purchasing of the property and went in
with your friends?
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June 4, 2024
MR. ROOSEVELT: Yes.
MS. VILLEGAS: All moving here in order to create these homes?
MR. ROOSEVELT: No, I currently live here; Ryan Leese currently lives here;
my father is another person who has a lot; he currently has a home in
Kailua-Kona, and then Michael, the doctor, already lives here as well.
MS. VILLEGAS: Okay. Thanks for helping me understand the nature of the
investment property. So, it was purchased with the intention of being able to
come in and subdivide and change the zoning in order to create the lots so
everybody could have a home on their individual lot?
MR. ROOSEVELT: Exactly.
MS. VILLEGAS: Okay. This area is not available to sewer. So, I see in here
that there would be septic systems on each lot, which are going to require some
clearing of the forest in order to create leach fields. It's another tough one. And
while I can appreciate the comments of the Council Members that are giving
credit for honorable and noble leaving of 80 percent of the forest, that's only there
because my predecessors put it there. That wasn't there before. So, I don't think
the nobility aspect is appropriate here. That's a legal requirement because people
who sat here before me made that a requirement as an attempt to mitigate the
destruction of the forest in Kaloko by prior landowners that were subdividing.
So, that's a legal requirement.
Unfortunately, as I would say again, I have seen those requirements not be
authentically abided by. And while I appreciate Planning Director Kern's
statements about there being teeth, I would cry horse pucky on that because I have
had people in my district doing illegal activities on properties for decades, and
there has been no follow up regardless of the amount of constituents or neighbors
bringing forth.
So, for me, and I appreciate you enduring this for me, but it's about the principle.
This is about a principle of our land management and our recognizing our native
resources. We are on the verge of losing a lot. And until we are okay with
making stronger decisions about leaving tracks of land in the size that they are in,
in order to mitigate further destruction of sacred spaces that house indigenous and
native species, endangered species, and the culture that relies on them for
gathering rights, we continue to compromise ourselves and the people in the
community and future generations that we have been tasked and elected to sit here
and make decisions for. It is easier to say yes. It is easier to say, "Okay, well this
is good enough." But that's what's gotten us where we are today, and that is my
great struggle.
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June 4, 2024
I apologize that it's your project or request that's sitting here, but that's what I've
seen historically. And until we start making different decisions, we are just going
to end up back where we are. This does not solve affordable housing. This does
not bring more workforce housing. This does not do any of those things. This
provides for another five -acre ag lot with a McMansion on it, and that is what
Kaloko is full of now. Yeah, so I really struggle on that.
I apologize for my personal, passionate nature on this. But I take offense to some
of these statements about the native forest, and Hawaiian rights, and cultural
practices, because to separate the people from this place is what has been done for
hundreds of years and it's why we are where we are. And yet we look to our host
culture for solutions for the challenges that we have to mitigate because of climate
change and global warming. But then we're willing to compromise and allow for
further destruction of a forest, a cloud forest, that is imperative to our watershed.
CHR. INABA: Council Member Kimball.
MS. KIMBALL: Thank you, Chair. Just want to get clarity. I'm looking at the
language that is in Condition E, which says that no less than 80 percent of the lot
shall be retained in forest and that's going to be recorded with the Bureau of
Conveyances. Then there is, we already kind of talked about it under Condition
G, that if there are more than 20 percent that has been cleared prior to the
submission of the management plan —I'm just wanting to make sure sequentially
I'm clear.
You said that this has to do with passage of the ordinance G-3, but it's actually
tied to the submission of the plan and that timing. And then what is the timing of
the plan? If the timing of the plan is becoming before it comes for review by the
Planning Director, what is the trigger there? You see what I'm trying to
understand? What is the flow, what has to happen before with Step A, B, C? To
me, it's not clear, and I think that that's problematic because I don't want to brag
but, you know, I understand this lingo most of the time. I'm not understanding
this, and the timeline is not real clear. So, can you elucidate how we're supposed
to be thinking through this and if you're open to this suggestion, I do think we
might want to spend a little time refining this for clarity. I think there may be a
loophole here that I'm concerned about.
MR. ARAI: Well, don't sell yourself short because after 30 years in government,
even I kind of misread it a little bit, but I understand what you're saying. The
covenants contained within G, what's required is for it to be submitted to the
Planning Director prior to him issuing final subdivision approval.
MS. KIMBALL: Although Condition G doesn't specifically say that unless I'm
missing it somewhere.
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June 4, 2024
MR. ARAI: For example, G-2, "forest management plan shall include restrictive
covenants" so forth so on. "A copy of the covenants to be recorded shall be
submitted to the Planning Director for review and approval prior to the issuance
of Final Subdivision Approval." So, what happens is you have to go through the
whole subdivision process first and get final approval in order to legally create the
lot, and then once the lot is created then you record covenants specific to each and
every single lot in the subdivision. You cannot record it on the parent lot and then
carve it up. There has to be this association with the individual lots. So, that's the
kind of flow that I'm hoping I'm conveying.
MS. KIMBALL: Alright. That
MR. ARAI: Didn't help.
MS. KIMBALL: Didn't help.
MR. ARAI: Really? Okay.
MS. KIMBALL: Yeah. No. Okay. I'd like to hear what Vice Chair Inaba thinks
about that explanation. But, you know, I've got to say, appreciate the concerns of
my colleague. Also, I feel that there's no obligation on our side to, when
somebody purchases a property, to agree to subdivide it or to agree to downzone
it, like, that can't be the expectation. I will say, however, I have 40 acres of two
parcels right next door to me that were all forest until about a year ago, and
they're completely open now and in the guinea grass, frankly. And that is
because there were no protections for the forest that was there. So, I do like that
selling point of this. And I think that it's obviously part of your objective as the
owner and as other owners' applicant to basically sweeten the pot for us and say
this is what we're offering you, this protection. I think it's a good choice. I'm not
fully clear, again, with the language. But I'd like to hear what Vice Chair has to
say about that.
CHR. INABA: Okay. I'll start there then. G-2, I think I heard you say, Mr. Arai,
that the lots have to be created before these covenants can be recorded, but that's
not what I'm reading in G-2. It's saying that a copy of the covenants shall be
submitted for review and approval prior to the issuance of the subdivision
approval and that a copy of those approved covenants by the director shall be
recited in an instrument executed by the applicant and the County and recorded
with the Bureau prior to issuance of the final subdivision approval. So, I don't
think what you said is correct.
MR. ARAI: Shows you how much I learned after 30 years, right? So, yeah,
you're right as how it's written. I was sort of like reciting what I understood
when I spoke to a number of practitioners, you know, subdividers, people who
create these types of things. It's hard, but I believe there could be a way to create
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June 4, 2024
a master covenant that covers the whole property. And then, when you carve it
up, I guess you can create a restriction that refers back to that master covenant.
That could solve this particular problem. But regardless of when it's done,
whether it's done prior or after, the landowner and the applicant is willing to
provide assurance that no clearing will occur until such time these covenants are
put into place. Then once put into place, they will have to then strictly follow
whatever was presented and approved in the Forest Management Plan.
CHR. INABA: Okay. So, for Corporation Counsel then, regarding the recording
of these covenants with the Bureau, does language here need to specify that those
recordings be applied to the specific parcel before us and any subsequent
subdivided parcel that is created so it's very clear that it runs with any subsequent
parcels that are created?
(Note: At this time, Corporation Counsel Elizabeth Strance came forward
to address the members of the Committee.)
MS. STRANCE: Thanks. Good afternoon, Elizabeth Strance. I think I
understand. What you're saying is that you want to see that the restrictions are
recorded at or before the time of the subdivided lots being approved.
CHR. INABA: Yes. Which I think is what it says here. My question is, I'm
confirming that by that happening, they're going to get final subdivision approval
after that, do those covenants then run with all of those subsequent parcels that are
created, or do we need to specify that that happens here so that it gets recorded
with the Bureau and they know that any subsequently created parcels also have
those same covenants? I'm just trying to be clear because if not, we could say
that for here, and then the other three parcels that are created or four parcels could
not have those protections. I'm really unsure about how that kind of land law
works. So, I just want to make sure that it would apply to the created parcels as
well.
MS. STRANCE: I think if you wanted to clarify you could add a clause in
paragraph two after land court, "until run with the land," or something to that
effect. If you're worried about that possible scenario, we can suggest some
language to you that will tie it down even though I think there's kind of a general
practice, but what I'm hearing you folks say is that you really want to nail it
down, and I think we could probably suggest some language that would be fairly
standard language, and which would nail it down.
CHR. INABA: So, we're not clear. Okay. So yes, we can do that but we're not
clear for sure whether land law would also transfer those covenants to additionally
created parcels?
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June 4, 2024
MS. STRANCE: I would have to look at that more clearly. I mean, I look at the
order that this is rolling out and it's not, you know, in my experience it's not an
uncommon order to as part of a subdivision, you have the master CC&Rs
(Covenants, Conditions, & Restrictions), and then the lots sold like the
subdivision are all subject to the CC&Rs. So, that kind of rolling out of it isn't
unusual. What I'm hearing you say is that you want something maybe extra in
there so that it's clear that upon subdivision those restrictions run with the land,
and that's an easy enough clause to add if there's any concern.
CHR. INABA: I guess if we can't say for certain right now that the law says that,
then we better put it in today.
MS. STRANCE: I guess there's kind of practice and how things are done, and
then there's practice when you're worried about things not getting done. And
usually, that's standard practice.
CHR. INABA: Okay.
MS. STRANCE: I don't think that this is unusual language that provides an out,
but I also hear a lot of concern being expressed by this body that you could add
some additional language that would leave no doubt.
CHR. INABA: Okay. Yeah, there's definitely a little bit of work there and this is
probably the same language that was used in previous change of zone ordinances
that have been approved, but we learn new things throughout the years.
MS. STRANCE: Understood.
CHR. INABA: So, we'll take a closer look at this. Also, for G4, to the applicant
and the representative, it says that the Forest Management Plan would apply for
50 years and at that point termination could be an option if this ordinance is
amended and approved by the Council. If the intention is to keep the forest there,
is this really necessary to leave an option? Because we might not all be here in
50 years and at that point, you know, this could be amended and the forest in
50 years could be just cleared out. So, I'm just wondering is this something that
you folks feel very strongly about having included in this, a 50-year certainty, and
then after that, a potential to get out of taking care of the forest there?
MR. ARAI: I can't speak for the applicants because I don't own the land. But
then, 50 years I guess, as you all know, any condition and any ordinance can be
amended pretty much at any time, right? So, I think this is just language that has
been used historically. So, I don't know why 50 years was chosen. I guess it's no
different. It just provides a reasonable timeframe because after 50 years, the land
itself may change hand due to estate purposes. So, maybe it's just giving that
opportunity. But I can only refer to the landowner on their intentions after
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50 years because I know where I'll be in 50 years.
CHR. INABA: Mr. Roosevelt, you have any comments?
MR. ROOSEVELT: I'm fine with protecting the forest forever.
CHR. INABA: Okay. Thank you. There's just some language I think that needs
to be cleaned up. The fact that we've seen this kind of often and we're struggling
to wrap our heads around making sure that everything is airtight here goes to
show that. I will also comment on, you folks bought this property about a year
ago and the intention is to subdivide to create these lots for you folks and
someone else. There's no time condition here, and I always come back to that.
But essentially, we have a bill before us with no timeline to actually get this done.
So, to the applicant, oftentimes we'll see applications come to us with a
timeframe in which final subdivision approval is included. And there is an option
by Code that allows for an extension if circumstances have occurred that didn't let
you get that done in the proposed time. I would like to see a timeframe and I
would ask that you folks consider what timeframe would be acceptable and
workable for you folks.
MR. ARAI: Thank you, Chair Inaba. In the application, we stated that they
believe the subdivision can be completed in five years.
CHR. INABA: Okay. Yeah, maybe we can talk offline then to figure out, you
know, some of these amendments. And then, fair share, all of the fair share being
proposed in this bill is proposed to go to the intersection improvements of Kaloko
Drive and Mamalahoa. I want to circle back with Planning maybe. I'm not sure
that's the most appropriate, being that there's already money sitting there, and I
believe the legislature appropriated $3 million and it is a state project. So, that's
something that maybe we can revisit. Director Kern, did you have anything to
add to that right now? I just don't want us to keep putting money into an account
that there's been so much frustration over all of these 30 years, and then we're
going to already have the project funded by the state and it's a state project.
MR. KERN: Sure. Yeah, I see where you're coming from. It's probably a good
area to visit. I think then the question would be where does it go and is it
equitable to the other folks that have contributed over those years to that
intersection.
CHR. INABA: Yeah. And not to say that we can't contribute if there's that
requirement, but I don't know that at this point we should be contributing the
entire fair share just to improvements rather than to the normal police, fire, parks,
that most of our fair share would normally go to. So, that might be something
else that we could revisit.
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Is there any other questions right now? I'll just say I would prefer to hold this
here so that we can really feel confident before moving forward and get a nice
clean amendment in at the Committee level, and that would be my preference. If
not, I can't support the application as it currently reads. Council Member
Kaneali `i-Kleinfelder.
MR. KANEALI`I-KLEINFELDER: Thank you. Just to your last point about the
improvements. But reading that the DOT (Department of Transportation) stated
that the improvements should be made at no cost to the state and wanting to have
that on the record. For the Planning Director, is there a CIP (Capital
Improvement Projects), is there anything moving forward for a CIP for that
intersection?
MR. KERN: Not with us. It's really with the state. Council Member Inaba and I
have met with them a few times. They did the intersection study, and it does
warrant an improvement there, and so they're working on that. And with the
money that is held and reserved right now that's been collected over the years,
that'll be going to fund a part of that. So, that is in motion but it's a state project.
MR. KANEALI`I-KLEINFELDER: That directly goes against what this
document is saying. I'm just saying. I mean, I don't know where it stands. It's
not really my kuleana or my district, no idea. But it says on Page 5, the DOT
stated that the intersection improvements should be made at no cost to the state.
I'm just listening to you, and listening to Mr. Inaba, and looking at the money,
and trying to figure out what's going on and who's doing what.
MR. KERN: I would say Council Member Inaba and I; he has the same
information as far as the state as I do. Then our meetings, they've said that they
were going to be funding it along with the money that we have to contribute.
MR. KANEALI`I-KLEINFELDER: Okay. Beautiful. Thank you.
CHR. INABA: Thank you. With that, Mr. Arai, is there anything else you want
to add at this point? I'm going to be asking that we take a two -week
postponement, and I can work with you folks to meet offline and get everything
ironed out.
MR. ARAI: We have no objections to it, smoothing things out.
CHR. INABA: Thank you. Council Member Kierkiewicz.
Motion to Postpone: Ms. Kierkiewicz moved to postpone Bill 166 to
June 18, 2024. Seconded by Ms. Lee Loy.
MS. LEE LOY: Chair, on the postponement.
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CHR. INABA: Yes.
MS. LEE LOY: Absolutely looking forward to smoothing out language. I've
actually dug into Resolution 58-97, and the prior resolution, which was 330, and
there's actually language about final subdivision approval of the proposed
agricultural subdivision shall be secure from the Planning Department within five
years. So, what the applicant is represented is already discussed in that. I think
going forward for language, there's some great stuff there.
CHR. INABA: Okay. Thank you.
MS. LEE LOY: Supporting the postponement.
CHR. INABA: And with that and the Code allowance, there could be up to ten if
things don't go as planned. So, there's a motion on the floor. All those in favor
of postponing Bill 166 to the June 18th Committee meeting, please say "aye."
Vote on Motion The motion to postpone Bill 166 to June 18, 2024
to Postpone: was carried by the following voice vote:
(Approved)
Ayes: Committee Members Galimba, Kagiwada,
Kaneali`i-Kleinfelder Kierkiewicz, Kimball,
Lee Loy, Villegas, and Chair Inaba — 8.
Noes: None.
Absent: Committee Member Evans — 1.
Excused: None.
MR. ARAI: Thank you, Council Members.
CHR. INABA: We're going to take a five-minute recess. We'll resume at
3:05 p.m. Mahalo.
Recess: At 2:59 p.m., the Chair called for a recess.
Reconvene: The meeting reconvened at 3:07 p.m.
CHR. INABA: Alright, calling this meeting out of recess. It's now 3:07 p.m.
Next order of agenda, please.
STATEMENTS The Chair directed the Committee to proceed to the next order of business,
FROM THE Statements from the Public on Bill 169.
PUBLIC ON
BILL 169: The following individuals registered to speak and came forward when called by
the Chair:
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Diane Blancett-Maddock
David Blancett-Maddock:
Elizabeth Dunn:
Janet Matlock:
Paulette Roberson:
June 4, 2024
Bill 169 (Comm. 896), in opposition.
Bill 169 (Comm. 896), in opposition.
Bill 169 (Comm. 896), in opposition.
Bill 169 (Comm. 896), in opposition.
Bill 169 (Comm. 896), in opposition.
Bill 169: AMENDS ORDINANCE NO. 02-131, WHICH AMENDED ORDINANCE
NOS. 97-99, 94-34, 93-26, 91-96, 90-62, 88-4, 84-42, AND 84-23, WHICH
RECLASSIFIED CERTAIN LANDS FROM UNPLANNED (U) TO
MULTIPLE -FAMILY RESIDENTIAL — 5,000 SQUARE FEET (RM-5) AND
SINGLE-FAMILY RESIDENTIAL—15,000 SQUARE FEET (RS-15) AT
HOLUALOA 1 AND 2, NORTH KONA, HAWAI`l, COVERED BY TAX MAP
KEYS: 7-6-021:004, 009-013, AND 015-017
(Applicant: Kona Three, LLC) (Area: approx. 175 acres)
The Leeward Planning Commission forwards its unfavorable recommendation for
the applicant's request for a 10-year time extension to Condition I (Complete
Construction of the First Increment on RM Zoned Lands) and amendment to
clarify Condition N (Roadway Standards), which would apply only to Tax Map
Key Nos. 7-6-021:016 and 017, consisting of a total land area of 67.162 acres.
The subject properties are located along the east (mauka) side of the Queen
Ka`ahumanu Highway at its junction with Kuakini Highway, between Pualani
Estates subdivision to the north and Kona Vistas to the south.
Reference: Comm. 896
Intr. by: Mr. Inaba (B/R)
; and
Comm. 896.1: From Committee Chair Holeka Goro Inaba, dated May 23, 2024, transmitting
correspondence from the Applicant's Planning Consultant, Daryn Arai.
Motion to Approve: Ms. Lee Loy moved to recommend passage of Bill 169 on
first reading. Seconded by Ms. Kierkiewicz.
CHR. INABA: We do have the applicant and the representative here today in
Hilo Chambers. If you folks would like to give us an overview of the request and
share anything prior to deliberation by this body, go ahead. Please introduce
yourself for the record.
(Note: At this time, Planning Consultant Daryn Arai and Kona Three,
LLC representative Richard Wheelock came forward to address the
members of the Committee.)
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June 4, 2024
MR. ARAI: Good afternoon, Chair Inaba, members of the Committee. My name
is Daryn Arai, a resident of Hilo. I'm here today assisting the applicant Kona
Three LLC, who is represented by Mr. Richard Wheelock seated to my left.
Behind me is Robert Williams, and Roland Higashi. Also, joining us today is
Michael Matsukawa, Counsel for Kona Three LLC, Archaeologist Glenn Escot,
and h6lua expert Keone Kalawe, and they're seated in the audience.
This story goes back 40 years to 1984, where both the subject property as well as
the adjoining Kona Vistas subdivision comprising of 173.5 acres was designated
to the urban district as well as to the single-family residential and multiple -family
residential zoning. It took 23 years since 2007 to develop 103 acres that now
comprise the 215 lots in Kona Vistas. That process alone spanning 23 years
required six amendments to the zoning ordinance.
The first increment of the RN (Residential Neighborhood) zone lands that were
promised was never constructed. In December 2015, the applicant Kona Three
LLC purchased the RN zone portion of the original project site that comprises just
under 68 acres with intent to develop a multiple -family project that was promised
over 40 years ago.
Before the requested amendments were submitted, the applicant spent about six
and a half years updating archaeological and inventory surveys, preparing data
recovery and burial treatment plans for the property, meeting with the approval
for SHPD, preparing a cultural impact assessment, traffic and biological studies,
and completing an over three and a half year process in producing an
environmental report that resulted in issuance of a finding of no significant impact
by the Planning Department. Kona Three then spent an additional two and a half
years and counting in proceedings before the Leeward Planning Commission
(LPC), the Cultural Resource Commission, and currently before this body. All
told, Kona Three has spent nine years to date trying to secure a ten-year time
extension.
Testimonies before the Leeward Planning Commission and the Cultural Resource
Commission suggest that the project site contained the following historical and
cultural features; one, a h6lua slide, historic mauka makai government owned
trails including the famed Kealakowa`a Trail, and various archaeological sites and
cultural resources.
The agricultural field inspection and three inventory surveys were then conducted,
with the most recent 2021 study accepted by SHPD along with recommended
mitigation commitments. Regarding features thought to be a h6lua slide, an
archaeological report found no evidence or remnants of a slide within the project
site, which was further confirmed by h6lua expert Keone Kalawe. None of the
trails depicted in the 1928 USGS (United Stated Geological Survey) map depicted
it entering the project site instead terminates at the railroad berm located along the
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June 4, 2024
project sites eastern or mauka boundary, and that was also confirmed by historic
Holualoa Hui access easement study that was prepared by Archaeologist Glenn
Escott. And that study was also provided as part of your record.
Research indicates that the Kealakowa` a Trail is not located within the project site
but on lands located to the south. Other alleged trails said to traverse the property
are actually features associated with cattle ranching within the project site, and
this was also confirmed by the State Historic Preservation Division. The cultural
impact assessment for the project site was prepared and made a part of the final
environmental assessment that was accepted by the Planning Department, which
found no paths or ongoing cultural practices within the project site. The
biological survey and fauna assessment were also prepared as part of the EA
(Environmental Assessment), which found no rare, threatened, or endangered
species of plants or animals within the project site. And evidence shows that the
proposed Royal Vista project with appropriate mitigating actions will not have a
significant adverse effect upon valued historical and cultural resources.
Regardless of the voluminous amounts of information and evidence that was
presented to the applicant which exceeded probably two thousand pages, that
commission found that due to the historic and cultural significance of the
property, it recommended that the property be preserved in perpetuity only if
preservation is feasible. This recommendation is not feasible simply because the
applicant is not interested in selling the property.
Therefore, the second part of the Cultural Resource Commission's
recommendation would prevail, which recommends that prior to issuance of any
development permit approval, the applicant seek further documentation of lineal
descendants and kama`aina knowledge of the natural and cultural resources of the
project area inclusive of trails in order to be integrated into the development
design. And second, consult with community to amend the current development
plan to include larger open space areas that more sensitively integrate and protect
the natural, historical, and cultural features of the landscape, including trails and
other cultural sites as well as natural features of the terrain such as drains,
channels, and native plants. The applicant is willing to abide by these two
recommendations from the Cultural Resources Commission.
I need to speak briefly about PONC (Public Access, Open Space, and Natural
Resources Preservation) since it was referenced in testimony given to you today.
After three unsuccessful attempts by residents of Kona Vistas spanning about four
years and without the knowledge or involvement of the applicant, the project was
identified by PONC on its 2022 priority list of qualifying lands worthy of
preservation, although, at the very bottom of seven other ranch sites.
The evidence provided by the applicant in these current proceedings clearly
demonstrates that the information presented to the PONC was misleading and
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June 4, 2024
inaccurate. But the simple fact that it was placed on the PONC priority list has
been extremely detrimental to the landowner as the perception that these lands are
being extremely sacred and must be preserved is not based on any factual
information that the applicant is aware of.
We will also, if you allow me, if I could speak briefly about traffic, since we
know that has been brought up as a concern. The project site is not within a
concurrency zone, or a TOD (Transit -Oriented Development) as depicted by the
Kona Community Development Plan (CDP). The project will construct minor
connectors identified by the CDP transportation network map that will connect
Leilani Street and Kona Vistas with Ho`omama Street and Pualani Estates;
connect Kekuanao`a Place in Kona Vistas with Paulehia Street and Pualani
Estates; connect these two roadways with the mauka/makai roadway that will then
connect to the Queen Ka`ahumanu Highway.
Comments from residents of Kona Vista resulted in the applicant moving access
for Phase 1 from Kekuanao`a to the Queen Ka`ahumanu Highway via new
unsignalized but channelized intersection. Two traffic studies were prepared
based on traffic counts conducted in 2019 before COVID (Coronavirus Disease).
All studied intersections, a total of eight of them, along the Queen Ka`ahumanu
Kuakini alignment from Palani to the north to Kamehameha 3 to the south, will
operate at acceptable levels of service with some specific turning movements
deteriorating upon completion of the project phases. But this was expected
regardless of whether the project proceeded or not.
Both TIARs (Traffic Impact Analysis Report) conclude that no immediate local
area roadway mitigation is recommended. Five of these existing intersections are
signalized; three of them are two-way stop -controlled intersections, meaning stop
signs. Overall, the proposed project is not anticipated to have a significant
adverse impact to the existing level of service at these various intersections
beyond the background levels.
In the end, any project will have some effect on traffic. Royal Vista, however,
will bring a host of improvements that will better the entire community, such as,
providing homes for the middle and lower income families with the opportunity
that these families can live close to where they work, versus continuing to drive
from areas outside of the Kona urban area; contributing to the overall network
congestion creating a mix of social economic housing within an area that is
primarily comprised of single-family residential homes, Kona Vistas, and Pualani
Estates, for example. The applicant participated in the Kona and Kealakekua
source water agreements. It provides potable water to thousands of homes and
businesses in the area, building portions of connector roadways between Kona
Vista and Pualani Estates, helping to improve the overall traffic circulation within
the Kona urban area, and extending the County sewer system, which will then
allow the County to expand its service to a much greater area.
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June 4, 2024
So, Kona Three LLC is trying to fulfill a promise that was made 40 years ago to
provide a range of housing types for the community. The residents of Kona
Vistas are fortunate to be able to afford a home within a community that most
middle -income people cannot afford. These middle -income families have waited
40 years for a project like Royal Vista. How much longer do you think these
families can wait? So, with that, we stand ready to answer any questions that you
have.
CHR. INABA: Thank you, Mr. Arai. I want to give the Planning Department an
opportunity if there's anything further that they would like to add. We have
Deputy Jeff Darrow here in Hilo Chambers. Deputy Darrow, can you confirm
that you're here representing the Planning Department as the Planning Director
had previous association with this project?
(Note: At this time, Deputy Planning Director Jeffrey Darrow came
forward to address the members of the Committee.)
MR. DARROW: Aloha, Chair Inaba, members of the Council, my name is
Jeff Darrow, representing the Planning Department. We've been working on this
application for—
CHR. INABA: Sorry, Deputy, are you here representing the Planning
Department since the Director has a conflict with this application?
I&IN0 NV161!iTMN!KWIT17-MMX=
CHR. INABA: Okay. Thank you. Go ahead.
MR. DARROW: The Director represented this applicant prior to becoming the
Planning Director. The Planning Department has prepared a background and
recommendation along with conditions. This being a time extension, and a time
extension that has been approved some time ago in 2002, we've updated all
conditions, not only with our standard updated conditions, but also relative to all
the comments that have come in from the different agencies. Also, it's my
understanding, based on Communication 896.3, that there's additional conditions
that have been added that we feel would be able to mitigate all of the impacts that
have been measures of concern from the public regarding drainage, traffic,
archaeological, cultural, historical, biological, floral and fauna issues as well as
construction measures in regard to timing and process.
The Planning Director took a good look at this particular project as mentioned by
the applicant's representative. This project has been in review for over 40 years,
since 1984. There's been a number of time extensions for the first phase, which
included the single-family residential portion of the development. The multi-
family portion has not been developed. This current owner is motivated and
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June 4, 2024
willing to be able to complete construction on this particular project. This will
provide quite a number of affordable housing units for local people, for, if I might
say state, residents of the State of Hawaii, as mentioned within the condition.
Additionally, as mentioned by one of the testifiers earlier, there are quite a
number of people that have to drive either over the mountain or come from areas
such as Ka`u to be able to come to work in Kailua-Kona. This will offer those
opportunities to be able to consider moving within the urban core and be able to
not have to drive so far and be able to live and work. We are supportive of this
application. I can answer any questions if you have any questions.
CHR. INABA: Thank you. And with that, we do have some other County
agencies that have had a hand in this. And sorry, I should've let you know I was
going to call you up, but I just thought of it. So, if we can have Administrator
Kunz from our Office of Housing and Community Development, if you have
anything you'd like to add, and if there are any other County agencies joining us
on Zoom, I'll give you an opportunity too. But just want to have opportunities
from all agencies. Go ahead, Administrator Kunz.
(Note: At this time, Housing Administrator Susan Kunz came forward to
address the members of the Committee.)
MS. KUNZ: Thank you very much. My name is Susan Kunz, I'm the Housing
Administrator for the Office of Housing. I am here today to represent the Office
in that if this extension goes through today, it will trigger our County's housing
policy, which is Chapter 11. So, I will be available to speak to what those
requirements might look like should that happen.
CHR. INABA: Thank you, Administrator. With that, checking on Zoom if
there's any other County agency before I open it up to members of the Council.
Alright, with there being no other agencies, discussion here on Bill 169. Council
Member Lee Loy.
MS. LEE LOY: I'll start. Hi Daryn, thanks for being here. You know, I usually
ask this of all the applicants, but Mr. Inaba tends to get there first. There are
conditions of approval outlined in Bill 169. Are the landowners agreeable to
these conditions of approval? Thanks, Mr. Wheelock.
MR. ARAI: Yes. As presented by the Deputy Planning Director, they're in
agreement. But we do understand that there are some changes forthcoming, and
we can speak to that when it does.
MS. LEE LOY: Great. And then there was some other testimony, and maybe this
is a question for Deputy Darrow. here was some testimony about there would be
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some Short -Term Vacation Rentals (STVR) in this project, but I understand that
zoning doesn't allow for that.
(Note: At this time, Deputy Planning Director Jeffrey Darrow came
forward to address the members of the Committee.)
MR. DARROW: Thank you, Council Member Lee Loy. The application speaks
to short-term vacation rental not to the point that the applicant is proposing that,
but the fact that it is a permitted use within the RM (Multi -family Residential)
zoning as long as you condiminiumize the project. I cannot speak on behalf of the
applicant as far as their intention regarding STVRs. That may be a question for
them.
MS. LEE LOY: Yeah. Daryn, you want to take a swing?
(Note: At this time, Planning Consultant Daryn Arai came forward to
address the members of the Committee.)
MR. ARAI: Yeah, sure. This is Daryn Arai. The applicant has never presented
short-term vacation rentals as a component of this project, ever. We're not sure
where that narrative surfaced, but it was never part of the proposal.
MS. LEE LOY: Okay. And then talk to me a little bit about the different housing
product types. I know we're always talking about AMI (Average Median
Income) or, you know, types of housing. Share with me a little bit about the types
of housing proposed for this project.
MR. ARAI: This project is a multiple -family residential project. Basically,
apartment complexes pretty much broken up in two phases. The first phase is
about 174 units that would be two and three stories and two or three bedrooms as
well. Then the remainder 274 units will be two stories, if I remember correctly,
and two and three bedrooms as well. And within each phase there will be like a
resident manager, so when you add the numbers up it comes out to 450 units total.
Now, because there's a decision and order that was granted in 1983, and that had
a Condition A that specified that ten percent of the lots or units constructed on the
property needs to be provided on site for those low- and moderate -income
families. The applicant is willing to comply with that requirement, in fact they
have to comply with that requirement because it's in the LUC (Land Use
Commission) decision and order. But part of the history is that when Kona Vistas
was constructed the 215 lots that were created never had an affordable housing
component. Basically, they left that affordable component unfulfilled.
Kona Three, by purchasing the RM zone portion of the property, is willing to take
on that responsibility, that unfulfilled responsibility, by a previous developer and
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June 4, 2024
make it a part of their project. So, that being said, the ten percent would roughly
equate to 45 affordable units as part of this particular project with the 22 units that
were unfulfilled by the Kona Vistas project, which means 67 affordable units will
be constructed on the subject property.
MS. LEE LOY: I know it might be premature because I know sometimes these
construction numbers, it has to pencil out. What target AMI are we trying to hit
with these units for the affordables?
MR. ARAI: The D&O (Decision and Order) talks about low and moderate and
when you look at the definition of low and moderate, the initial read that we got,
it was somewhere like 80 percent and below. But then at the same time, you
know, we are looking at —because again, that definition was embodied in the
decision and order that was established back in 1983, and we have to look back at
what basis for that definition was in place in 1983. So, again, the whole intent is
to satisfy that obligation.
MS. LEE LOY: I'll have to go look. Tell me the decision and order number. Do
you have that?
CHR. INABA: It is Docket Number A83-549.
MR. ARAI: Thanks for jumping in.
MS. LEE LOY: Tell me again, Mr. Inaba.
CHR. INABA: A83-549 from the Land Use Commission.
MS. LEE LOY: Great. Thank you. Thanks, Daryn. I yield.
CHR. INABA: Thank you, Council Member Lee Loy. I'll pop over to Kona.
Any comments or questions at this time? Alright, if not, back here to Hilo.
Council Member Villegas.
MS. VILLEGAS: Aloha and thank you for being here. I had the opportunity to
sit down with a number of you a number of times over the years. This property
resides in my district. The constituents of my district have spoken out loud and
clear in opposition of this time extension with over 800 people signing a petition
in opposition and 35 written testimonies being provided today. When I look at
the history of this piece of property, what it was purchased for, $600,000. Wow,
talk about bargain, right? One of the units that's being suggested to be built
would be lucky to be sold for that price.
The first three phases of the Vistas never fulfilled their affordable housing
requirement. Instead, I would like for my colleagues to know they attempted to
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Point of Order
June 4, 2024
give a piece of property across the highway that sits in a massive floodway to the
County in exchange for the County then being able to build affordable housing in
a flood plain. Somehow, that deed was never finished, the contract never
fulfilled, so that even wasn't fulfilled. So, here we are 40 years later, being asked
to trust and believe that the same players are going to execute what they're
committing to. There is nothing in this that legally requires you to ever build this
development.
If you are allowed a time extension for another ten years, it will contribute to the
reason why we cannot afford —it's claimed that developers can't afford to build
workforce housing in Kona and in District 7 specifically. Because when land
banking large pieces of properties like this happens and time extensions continue
over decades or just are never made and the developer just, you know, comes
back ten years after an expiration and asks for another ten years, the value of that
property continues to escalate to an amount that is prohibitive for anyone to say,
and I've been told this a million times; we can't pencil the numbers to actually
build affordable housing.
So, I sit here unable to believe that the true intention of this time extension is to
build this development. Instead, it's to secure the entitlements so that this
property can be sold. I've heard enough conversations from some of the people in
the room saying that they're aging out of wanting to be developing anymore.
MS. KIMBALL: Point of order, Chair. I think it's inappropriate to speak to the
intention of the applicants.
MS. VILLEGAS: Alright, I'll return to the facts. Thank you, Chair. In the Land
Use Commission hearing that was recently held, which you guys came and
testified to, did you or did you not say to the Land Use Commission that the
credits associated with the affordable housing project, being built by the Ahe
Group or in process to be built by the Ahe Group, would be allocated to cover the
required affordable housing credits for this project?
MR. ARAI: No credits are being secured.
MS. VILLEGAS: I know that. But was it said to the Land Use Commission that
they would be?
MR. WHEELOCK: No. I'm sorry. They were not. The original plan with the
Ahe Group was to provide land to Makani, which we did. We helped do that so
she could get a 100-unit residential rental built. When Kona Three acquired this
land in 2015—
MS. VILLEGAS: Thank you. That was just all I wanted to have answered
because I have on record that statement is false. We're looking at a history here
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of even coming to us today and skipping the Leeward Planning Commission,
which deprives our constituents of an opportunity to file a contested case hearing.
It also eliminates the opportunity for the constituents of District 7 and the island
to testify and tell their position and why to the Leeward Planning Commission. It
was also based on false claims of lack of quorum. We've already heard the facts
and statistics about the dates of your continued postponement of coming to the
Land Use Commission in order to continue to accumulate documents to discredit
cultural practitioners and the Cultural Commission.
The Cultural Commission is quoted as saying, "Due to historic and cultural
significance of the property, the Cultural Commission recommends that the
property be preserved in perpetuity." The continued denial to potentially sell this
property for a PONC purchase continues to baffle me. Although, in this current
day and age profit margins just one more statement, Chair. You have a piece of
property that was purchased for $600,000. You could still make money by selling
this project and protect it in perpetuity. The flood channelizations that are being
reflected in your plan are not accurate and they do not adequately reflect the
damage the flood plains that are caused there. It is stated in this ordinance that
you would then place the responsibility of these flood plains and the water on the
County and the State. That is unacceptable. With that, I yield.
CHR. INABA: Thank you. Further discussion? Council Member Kimball.
MS. KIMBALL: I had a procedural question for the Acting Clerk and or
Corporation Counsel. Understanding that the Planning Commissions have a time
limit as to when something is referred to them, when they have to reply, is it an
option for us now to send this back again, or is that off the table?
MR. PERRY: I do believe that the Committee could voluntarily choose to refer
this matter back to the Commission.
CHR. INABA: Corporation Counsel, if you could come forward, or if you need
some time to think about that and provide an answer as well.
(Note: At this time, Corporation Counsel Elizabeth Strance came forward
to address the members of the Committee.)
MS. STRANCE: Good afternoon, Corporation Counsel. You'll need to give me
a few minutes to look that up.
MS. KIMBALL: Okay. If that is an option available to us, that is one that I am
interested in at this point. I'd like to give the applicant the opportunity to explain
why the request was not to be put on various agendas, which ultimately led to
this, you know, coming to us with an unfavorable because there was never an
official hearing. I think that's a really important step in the process with a project
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such as this that's pretty complex. So, I'll wait to hear from Corporation Counsel.
But can you share with us who don't know what was the reasoning behind the
delays on your side in terms of getting on the LPC agenda?
MR. ARAI: Thank you, Commissioner Kimball. We've been watching and
we've also heard about some of the issues regarding quorum before the Leeward
Planning Commission. So, it's something relatively well known. So, I remember
when the original March hearing was cancelled due to quorum, the specific
question is could you assure if a hearing could be held in a reasonable time
manner and the answer was, they couldn't, just because they were continuing
experiencing these type of quorum issues. It was at that point, you know, in
respect to timely and due process, the applicant elected to ask that this matter be
moved forward to the Council knowing that it was going to be accompanied by an
unfavorable recommendation from the Leeward Planning Commission. So, that
in itself, you would like to have a favorable recommendation but knowing that the
applicant still elected simply because it was for timely and due process.
MS. KIMBALL: Deputy Director Darrow, do we have Planning Commission
members that are recusing themselves from decision making on that? Is that part
of the quorum meeting equation, or has it just been timing and availability?
MR. DARROW: My understanding up to this point is it's just been the lack of
quorum. We have new members with the Leeward Planning Commission, and I
am not sure if they would be in a position to recuse on this application.
MS. KIMBALL: Okay. Yeah, no, understood. And part of the issue has been
that we have had vacancies. We did just appoint two new members. So again,
waiting to hear from Corporation Counsel if this is an option. My other question
is to you, Deputy Director. Without making it sound like our hands are
potentially tied, I understand that this original zoning, if you could call it that, was
unplanned. So, if the time extension is denied on this, what happens?
MR. DARROW: If it is denied there still needs to be an action, whether it's
reversion to its original zoning. All unplanned zoning was reverted to agricultural
five acres when the 1996 Zoning Code was adopted, or as mentioned in the
conditions, a more appropriate zoning. So, there still could be a change of zoning
to either Ag-5 or something considered more appropriate.
MS. KIMBALL: Okay. Okay. I think I understand that. Chair, if you'll allow
me a little leeway. One of the other Council Members, I think it was Council
Member Lee Loy asked a question about the short-term vacation rentals. One of
the testifiers said, "It's right here." If I could ask that testifier where she was
pointing to and where is this? Just because if it's written down somewhere, I
want to know where that is. May I ask the testifier that?
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June 4, 2024
CHR.INABA: Sure.
MS. KIMBALL: Thank you.
CHR. INABA: If you'd like to come forward. And if you could please restate
your name for the record.
(Note: At this time, Testifier Diane Blancett-Maddock came forward to
address the members of the Committee.)
MS. BLANCETT-MADDOCK: Diane Blancett-Maddock. Aloha, again. And I
wasn't making it up, everybody. It's on Page 46 of the application, the last
paragraph. There's a whole paragraph about short-term rentals and the ability to
be used as short-term rentals. That's what I stated in my testimony.
MS. KIMBALL: Could I have you read that section into the record if you have it
right in front of you.
MS. BLANCETT-MADDOCK: I need to get my reading glasses.
MS. KIMBALL: Okay. Is that okay, Chair. I'm going to try to pull up the
application.
CHR.INABA: Yes.
MS. BLANCETT-MADDOCK: Being old is no fun, guys. It's in the last
paragraph. It says, "The other provisions relates to allowance and management of
short-term rental in certain areas outlined in Section 25-4.16 of the Zoning Code.
The subject properties are not situated within an area designated for resort uses or
resort node, therefore, short-term rentals, STVRs, may be permitted within the
for -sale units within the proposed 450 multiple -family housing project provided
that these for sale units are part of a condominium property regime as defined and
governed by Chapters 514A or 514B Hawaii Revised Statutes." That's where I
got that information from.
MS. KIMBALL: Great. Okay. And that is correct in terms of my understanding
of Chapter 25 and what is permitted in RM Zoning. As the Deputy Director
mentioned before, STVRs are permitted in RM if you condominiumize the units.
Even those in the works regarding short-term vacation rentals would not preclude
that. The same language is in there. Understanding that this particular area is
already at about 17 percent with short-term vacation rentals, what is the plans to
condominiumize the RM units?
MR. ARAI: I'll defer to the applicant's representatives regarding times to
condominimize. But if I could speak briefly about that passage within there?
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June 4, 2024
MS. KIMBALL: Sure.
MR. ARAI: As I mentioned earlier, short-term vacation rental is not a component
of this particular project. This citation was simply to recognize that the law could
allow it. So, that's all. I mean, I just want to make clear that that's the
distinction. It's not a proposal by the applicant, it's just a —
MS. KIMBALL: Yeah. I think we're clear on that. I think as I've said, many,
many, times, when it comes to a zoning application, like I'm not even really
looking at your site plan because honestly, that's not what we're permitting.
What we're permitting is the zoning, and if we permit this zoning, it permits that
use. So, that's just a factor that we want to consider here. But thank you for the
very generous leeway, Chair. I yield at this time.
MR. ARAI: Chair, do you wish for Mr. Wheelock to respond to Council
Members?
CHR. INABA: Mr. Wheelock, go ahead. You have to turn your mic back on.
MR. WHEELOCK: Thank you, Council Chair. I guess that's a full disclosure
clause. It's never been Kona Three's intent to do any vacation rentals here. This
was a rare opportunity to actually provide housing, rental, and for sale, to the
missing middle component and workforce in Kona. We got the land cheap with
that intent, and if we are allowed to proceed, we will deliver. If there's some
legal way that you folks can figure out that we can bind ourselves, we're willing
to say right now, or tomorrow, or next month, we will not allow STVRs in our
project.
CHR. INABA: Thank you, Mr. Wheelock. Council Member Lee Loy.
MS. LEE LOY: Yeah. Thanks, Mr. Wheelock. I think we do have a tool and
that would be done by deed restrictions. So, if we could maybe put our heads
together about language around deed restrictions. Mr. Matsukawa, so a deed
restriction on the property that would prohibit short-term vacation rentals.
Alright, you guys have got to think about it.
MR. ARAI: If I could just maybe briefly respond to that. While the applicant is
in agreement to such a restriction, if they verify with your Counsel if such a
restriction would be appropriate given that this is a zoning. So, that would be sort
of like contractual zoning, which is not allowed.
CHR. INABA: Mr. Kdneali`i-Kleinfelder.
MR. KANEALI`I-KLEINFELDER: Thank you. And thank you for being here
today. Good to see the applicant in person. Big project. A lot of comments. I
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read through the LUC, I really don't know what it is, 26 pages from the LUC. It's
a hawaii.gov site, but there's a lot of typos in it so I'm wondering what it actually
is. When I'm reading through it, I guess some questions stood out to me. Kona
Vistas, Kona Three, who, when, what was that separation?
MR. WHEELOCK: Kona Vistas, LLC was formed by Mr. Gamo's outfit. Mr.
Gamo was the original developer who acquired 174 acres in 1980 with the intent
to build mixed -use housing. In 1984, he, the County, and the State agreed the
housing project would be comprised of 215 estate lots, 450 workforce, middle-
class housing, that's the multi -family component we're here for, plus an
affordable component. The first LUC docket was approved with the D&O in
1984. The application was 1983. The second docket for Increment 2 was
approved in 1994.
MR. KANEALI`I-KLEINFELDER: Okay.
MR. WHEELOCK: Kona Vistas, LLC came into the picture approximately 2003,
after Mr. Gamo had passed on, and they completed the last three subdivisions of
the 215 homes. They did not proceed with the 450.
MR. KANEALI`I-KLEINFELDER: Okay. And then you folks are Kona Three.
MR. WHEELOCK: Kona Vistas was taken over by Gamo's outfit because the
Texans were running the show for the last three subdivisions, skipped town when
the great recession occurred in 2008, 2009, and they floundered until we acquired
the property in 2015.
MR. KANEALI`I-KLEINFELDER: Okay. Thank you. That matches what I
read so it makes perfect sense.
MR. WHEELOCK: Sorry about the typos. Kailua High School grad.
MR. KANEALI`I-KLEINFELDER: Is this from you?
MR. WHEELOCK: Probably. If it has typos, almost certainly.
MR. KANEALI`I-KLEINFELDER: I mean, they're here and there but it's just I
was expecting more. I thought it was a government issued document. And I'm
looking at it going this is not —
MR. WHEELOCK: We can't run the cost up more than they are already.
MR. KANEALI`I-KLEINFELDER: Okay. If you could or Mr. Arai, or Planning
Department, or whoever, but this LUC seeking clarification regarding affordable
housing requirements. That's interesting. It touches on a lot of different
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components but, I mean, it's touching on Makani, Office of Housing and
Community Development, and then Parcel 25. So, where does all that stand right
now? If that's like —then so be it. But I mean, if it's still a floating, as part of the
LUC document that I'm reading, they're still seeking further clarification. If you
wrote that, then you know what I'm talking about.
MR. ARAI: Maybe the quickest way to answer your question is that should this
time extension request be approved the applicant totally understands they would
have to comply with the decision and order as well as the zoning ordinance,
which would include a Chapter 11 requirement that is being recommended by the
Deputy Planning Director. So, it's going to end up having to result in a new
affordable housing agreement with the County. So, you can look back through all
those opportunities that Kona Three and the prior developer provided in order to
satisfy the affordable housing agreements. But in the end, it's going to end up
requiring a new agreement and that has to be hashed out with the County.
MR. KANEALI`I-KLEINFELDER: I guess my roundabout question then is, with
that still in flux, the affordable housing component, this project requires an
affordable housing component because of the original 1983 LUC decision?
MR. ARAI: Yes, at 10 percent.
MR. KANEALI`I-KLEINFELDER: Ten percent of the units —
MR. ARAI: The units constructed.
MR. KANEALI`I-KLEINFELDER: So how many units total?
MR. ARAI: It's 67 affordable housing unit space on the 22 commitments
unfulfilled by Kona Vista and the 45 affordable credits required by this project.
MR. KANEALI`I-KLEINFELDER: Okay. So, Kona Vistas transferred over —
this is when Kona Vistas, Kona Three kind of came in. So, Kona Vistas
transferred to Kona Three through a sale, and then Kona Three became
responsible for the AH (Affordable Housing) requirements never built?
MR. ARAI: I don't think they were responsible because Kona Three —how do I
say this? It's all part of the decision and order, but all I'm saying, regardless of
they're just willing to assume that unfulfilled responsibility.
MR. KANEALI`I-KLEINFELDER: Okay. What I read was, the LUC, this is a
requirement by the LUC from the original documents.
MR. ARAI: Right.
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MR. KANEALI`I-KLEINFELDER: This must be the magic work of
Mr. Wheelock, right?
MR. ARAI: Yes. Correct.
MR. KANEALI`I-KLEINFELDER: That's what I'm reading. Okay. Makes
sense. And Makani is no longer part of the situation. Am I reading that
correctly?
MR. WHEELOCK: The agreement we had with Makani has been terminated.
MR. KANEALI`I-KLEINFELDER: Okay. And then Parcel 25, what's the status
on Parcel 25?
MR. WHEELOCK: Parcel 25 is sitting alone in the top of Royal Poinciana. The
County no longer wants it for affordable housing, so we don't know what we're
going to do. Depending on how this works out, we wanted to hold it in case they
changed their minds. Doesn't look like they're going to.
MR. KANEALI`I-KLEINFELDER: Okay. So, if this ordinance goes through,
then you would focus on the affordable housing requirements required by the
LUC. You stop me if I say anything wrong. I'm just kind of summarizing and
making sense. County and you are still in flux as far as affordable housing?
MR. WHEELOCK: County has informed us that our 450 units is subject to
Chapter 11. We're in agreement with that. Chapter 11 requires 20 percent
credits; 20 percent of 450 is 90. So, our belief and understanding at this moment
is that we will owe 90 credits for the 450 units, plus 22 credits—
CHR. INABA: Sorry. No. I'm going to stop us there. We're going to make sure
we're using our terms correctly. Units and credits are two different things. 90
affordable housing credits is the requirement for the proposed Kona Three
development. 22 units, actual units, are required from the previous Kona Vistas
requirement. Sorry, Mr. Wheelock, I just want to make sure we are tracking
correctly with our words.
MR. WHEELOCK: Thank you for that clarification. We agree.
MR. KANEALI`I-KLEINFELDER: Thank you. Okay. That's helpful so far.
And then water sources; interesting this Kona Water Source, Kealakekua Water
Source. Census began, there's a lot of discussion. Are the water sources still
secured for the amount of units being projected?
MR. WHEELOCK: They are secured and fully paid for.
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MR. KANEALI`I-KLEINFELDER: Okay. That's all of my questions for now.
Thank you. I yield, Chair.
MS. KIMBALL: Sorry, Chair has stepped away, I believe. Council Member
Kierkiewicz, you're Vice Chair. Here, he's coming.
CHR. INABA: Council Member Villegas.
MS. VILLEGAS: Sure. So, can someone from Housing or Corporation Counsel
explain to us then what 90 credits actually means to our community? Because it's
not 90 homes.
(Note: At this time, Deputy Corporation Counsel Sylvia Wan and
Housing Administrator Susan Kunz came forward to address the members
of the Committee.)
MS. WAN: Good afternoon, Council, Deputy Corporation Counsel, Sylvia Wan.
MS. KUNZ: And Susan Kunz.
MS. WAN: Representing the Office of Housing and Community Development.
So, the County's Affordable Housing Policy is located within Chapter 11. Within
Chapter 11, it requires affordable housing credits to be earned equal to 20 percent
of the units that are going to be produced as long as those units, residential units,
are over five units being built in the development. So, 450 is obviously way over
five units. So, when we look at as far as credits and how they're applied, you
have to look under specifically 11-5. We will be looking at in conjunction with
paragraph C and paragraph D. Paragraph C will talk about what credits will be
earned based on the AMI levels of the residential unit that is being developed,
constructed, sold. My understanding is their project for the affordable units have
to be sold according to the Land Use Commission order. For any other units that
they want to develop for Chapter 11, they could also do rentals. Based on if it's
sold or rentals, the AMI are going to be different based on the credits that they're
going to earn.
There's a spread within Chapter 11. I'm just going to read to you the sold ones
just so I don't go on forever. Under 11-5C, for affordable housing credits, they
can sell complete dwelling units that are affordable to qualified households
earning 120-140 (percent) median income. That will earn them half a credit. If
they sell a completed dwelling unit that's affordable to AMI between 100 and
120 percent, that's one credit. If that same unit is sold to households earning
between 100 percent median income to 80 percent, they'll earn 1.5 credits. And if
they sell that unit to a household median income less than 80 percent, they'll earn
two credits. So, it really determines on how much that particular unit is going to
be sold for, for what particular AMI bracket.
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MS. VILLEGAS: Okay. So, they have a requirement of earning 90 credits?
MS. WAN: Yes.
MS. VILLEGAS: But they can go buy affordable housing credits from someone
else who's accumulated them and not actually ever —
MS. WAN: Not in this instance because the Land Use Commission order requires
that they build 10 percent onsite. So, at the very base minimum, there's going to
be 10 percent of those units have to be built onsite. So, for their proposed project,
that would be 45 units have to be built onsite, and the additional 22 prior
obligation. So, that 67 units absolutely have to be built onsite. Now, based on
what AMI levels those units are sold at, could calculate the credits differently for
those 45 additional units.
MS. VILLEGAS: Gotcha.
MS. KUNZ: We should also point out that the additional 45 credits that have to
be earned to meet Chapter 11, that only has to comply with Chapter 11. So
technically, those 45 credits could be purchased.
MS. VILLEGAS: You mean units?
MS. KUNZ: No. Credits.
MS. WAN: So, we're talking 90 credits, right? If the 45 units that they construct,
if they sell them at a one credit level, they would still owe the County an
additional 45. They could earn that additional 45 credits in any way that is
(inaudible) under Chapter 11.
MS. VILLEGAS: Okay. Gotcha.
MS. WAN: So that's why it's not a straight answer.
MS. VILLEGAS: Okay.
MS. WAN: Because it really determines on once we start writing an agreement,
exactly how are they meeting these requirements.
MS. VILLEGAS: Yeah. It's incredibly complex, which is why it's so confusing
to a lot of people.
MS. WAN: Absolutely.
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MS. VILLEGAS: I just have to bring this back to a principle for District 7.
We're at capacity. We don't have the roads. Our sewer system that you proposed
to connect to is currently in a lawsuit from Earthjustice, which I have questions
about the legality of any other future developments being able to connect to this
sewer system, or this wastewater facility until this issue is rectified. Our schools
are overburdened. I live just a few, maybe a mile south of this. It takes me 30
minutes to go six miles. Our roads cannot endure.
And while I will compliment you gentlemen on taking the recommendation and
the requirement that was voiced by the community in prior years, that Pualani
Estates and Kona Vistas, off of Lako, would not be okay with allowing or being
the major arteries that this subdivision would connect to in order to get to the
highway. And we went back to the agreement where it was stated that you were
required to create a mauka/makai connection from the development straight to the
highway. The challenge is, we can't endure another stop light right there either.
We are at gridlock. We are at max capacity, and that is the plea of my community
and myself. When we get infrastructure caught up, we may have the capacity to
expand.
Growth is inevitable, but I sit here asking for my colleagues to recognize the need
for wise decisions to be made about authentically planned growth. We need
housing, but we need workforce housing. And I've had enough conversations
with people associated with this development that I call bologna on this
authentically being workforce housing. The plans that I saw from before included
a potential gated neighborhood for all the homes up higher and being multi-
million dollar again. The Vistas is so completely out of reach. I lived on Sunset
when I was in high school and that was all pasture. I saw it all come up. I can't,
in good conscious, approve of this and put this further weight on our community.
Earlier today somebody from the Real Property Tax Office was here and what
was his statement? What was the percentage of Real Property Taxes? Yeah,
75 percent of the Real Property Taxes come from the West Side. Historically, the
West Side has carried the burden of continued onslaught of development without
adequate infrastructure or consideration, not even the consideration of the cultural
resources. Sacred sites that have been destroyed that we will never get back, that
my grandson of Hawaiian lineage will never get to experience of the pathways
that they will never get a chance to walk on because they have been bulldozed.
It is our responsibility at this time, and I carry this responsibility with a heavy
heart. I ask for the consideration from the Council Members here, for a piece of
property to go back to its original land use designation and to not allow continued,
repeated time extensions, would be an authentic change in the way that we have
done things, which has got us to where we are right now. And I'm asking for that
because the weight of this falls on District 7. And the floodwaters. Lot 25 is a
flood plain. The waters that come through there and go through a friend on
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mine's house are already devastating. Further changing to that flood plain will
devastate the neighborhood down by Royal Poinciana, which is predominantly
kama`aina and maka`ainana families. I don't know that there's anything more I
can say. I've tried from facts, I've tried from passion, I've tried from principle,
I've tried by pointing out the unauthentic actions and behaviors. And with that, I
yield.
CHR. INABA: Thank you, Council Member Villegas. Council Member
Kagiwada.
MS. KAGIWADA: Thank you, Chair. Of these 67 affordable housing units, the
minimum, there could be more, and I don't know if you guys are the right people
to ask, but you have Phase 1, 174 units, and Phase 2. Are these 67 units going to
be built in Phase 1?
MS. WAN: So, well I don't know. Is this a question for the developer? I can tell
you what Chapter 11 would allow.
MS. KAGIWADA: It's a question for the developer. Sorry. It wasn't for you
guys. Back to the developer, sorry.
(Note: At this time, Planning Consultant Daryn Arai came forward to
address the members of the Committee.)
MR. ARAI: Thank you for the question, Council Member Kagiwada. We've
committed that the 22 unfilled units from Kona Vistas will definitely be made a
part of Phase 1. Because that is an unfulfilled obligation, we want to make sure
it's provided up front. As the individual phases are brought online, then the
amount of affordable housing units required will be implemented at the time as
the phases progress through the project.
MS. KAGIWADA: The phases meaning Phase 1 and Phase 2?
MR. ARAI: As it stands now, it's Phase 1 and Phase 2.
MS. KAGIWADA: Yeah. Okay. I mean, I just hear my colleague's frustration
and, you know, decades. And I'm sure you guys don't like having to follow on
the heels of people who didn't do well for our community. But I also understand
that what did get built was these multimillion -dollar, single-family estates and
that's who's there now, and what didn't get built was the workforce housing,
affordable housing, multi -family housing. So, that's where the conundrum is,
right, because basically, you know, we've got testifiers from our community who
really care about the environment. We also have testifiers who have their
multimillion -dollar estate and don't want more traffic.
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We really failed, however that was, in that we let these big developments get built
before building these multi -family units and these affordable units. And I just
don't know how we will ever get back in sync if we don't build any more
affordable and multi -housing units over on the West Side.
I did hear, and sorry to do this to you, Housing Administrator, but I heard a
testifier saying there were 750 multi -family units already approved for the general
area. I was wondering if you can confirm if that's true and what our goal is for
the West Side as far as multi -family units?
MS. KUNZ: I heard that comment as well and I was trying to figure out what that
750—so, I'm not really familiar with a project that is 750 units. We have
hundreds of units that are in the pipeline.
MS. VILLEGAS: Chair, if I could just offer a little clarification? I don't believe
the reference was to affordable housing units coming up through the Office of
Housing. The referral is to the project across the street from Pualani Estates that
was provided a time extension with entitlements, and then the project sold to
another owner. It is a TOD (Transient -Oriented Development) that does include
hundreds of housing units and there are a couple of others on the highway that
have been approved, have their time extensions, and so they can pull the trigger to
start building on them at any point, and that's the concern.
MS. KAGIWADA: I see. She said 750 multi -family units already approved.
MS. VILLEGAS: And those are not affordable housing. That's just a
development. Sorry.
MS. KAGIWADA: So, do we know generally what our target is or what the need
is on the West Side as far as multi -family units? I mean, you must have some
sense of what you're aiming for.
MS. KUNZ: So, I'm going to reflect back to the housing planning study, which
we've been focused on since 2021, when we came on board. The magic number
is 10,000 units for the island. When I look at the planning study, the
disbursement of the need is about equal. We currently have 8,000 units in the
pipeline, but about two-thirds of those units are destined for West Hawaii, but for
water. So, we do have these projects in the pipeline for West Hawaii. But going
back to the study, the need is about equal as far as multi -family, east and west.
MS. KAGIWADA: Okay. Yeah. I mean, thank you. For me, personally, I just
don't see how we ever get past this if we don't —and maybe this is not the project
that does it, maybe it's another project. But this idea that we can't build anything
else on the West Side, it just seems like we've got to look at the bigger picture.
Anyway, thank you very much. Thanks for everybody's input. I continue to
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think on this. I hope we do better in the future of not continuing to approve large
single-family estates when that isn't necessarily getting us closer to what we need.
So, thank you. I yield.
CHR. INABA: Thank you. Checking back in Kona.
MS. GALIMBA: Thank you, Chair. Yes, I did have a question on leading up to,
I guess —I really take very seriously something that one of the testifiers brought
up about, you know, there's a lot of people that drive from the East Side or from
my district in Ka`u, and they are part of what's creating the traffic. But that
traffic that they are already creating that's already there, is at the end of a very,
very, long, very dangerous drive, and they're actually living in subdivisions that
are lava zone like one plus. You know, that's not the best place for people to live.
So, the need for workforce housing closer to the job is real. So, I take that part of
this whole conversation very seriously. That being said, I'm not really sure that
this particular parcel is where we —it's geography, the best place for that kind of
housing. It could be but it's not really the obvious place.
My question is if we don't approve this extension, and so the zoning becomes
invalid, we were talking earlier about it was originally unplanned and so then it
could be Ag-5 or another appropriate zoning. I think this is a question for Deputy
Director Darrow. My question is, is this zoning inappropriate or would there be a
more appropriate zoning? So, I guess my other question is if we don't approve
this extension, what happens to the land and also for the project and with the
landowners?
(At this time, Deputy Planning Director Jeff Darrow came forward to
address the members of the Committee.)
MR. DARROW: Aloha, Council Member Galimba. What could happen as
mentioned earlier is it could be reverted. Unplanned would be reverted to
agricultural five acres and then five acre lots could be created, or a more
appropriate zoning. Your first question regarding whether or not this particular
zoning is appropriate for the area, according to the General Plan Land Use Pattern
Allocation Guide map for this area the designation is mainly urban expansion,
which allows for low density, medium density, high density, industrial and
industrial commercial type uses. So, it is consistent with the General Plan for this
area. Again, it was consistent back in 1984 when it was approved. It was
consistent throughout the decades of time extensions. The Planning Department
continues to feel that this zoning is appropriate for the area and that it will supply
much needed housing for this particular area.
MS. GALIMBA: Okay. Thanks. So, I guess perhaps my question then might be
to the landowner. If this extension isn't approved, or it might for you,
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Mr. Darrow, would they then need to come back in and start over or what would
happen next?
MR. DARROW: If the application, the request was not approved, then the
applicant would have to make a decision whether or not to proceed with a
reversion of the property to its original zoning, or again, possibly another more
appropriate type zoning. This particular zoning that is currently on the property is
multiple -family, 5,000 square feet. If it was applied throughout the property, it
would've allowed about another one-third amount of units. What's holding the
density of this property is the water units, which currently is 450 units. Therefore,
the request is for 450 units. The actual property based on zoning could allow up
to 585 units. So, they actually are not building this property to its full potential.
MS. GALIMBA: Thank you so much. That was really helpful for me to
understand implications of a decision. I just have one more question, and this
is —at the very beginning of this there was mention that there was a holua expert
in the audience. I'm not sure if he's still there.
CHR. INABA: Yes, he is.
MS. GALIMBA: Great. I guess I'd like to hear from the expert on this. Thanks.
CHR. INABA: Thank you, Council Member Galimba. Yes, he's making his way
forward. If you could please introduce yourself and your experience, your
expertise, regarding the matter in which you will be sharing?
(Note: At this time, Keone Kalawe came forward to address the members
of the Committee.)
MR. KALAWE: Aloha mai kakou. My name is Keone Kalawe. I live in Puna,
and I have been working on the papa holua or the sled and the kahua holua, the
slide, for approximately 25 years. I have worked throughout Hawaii Island on
various slides and I'm a consultant for Kamehameha Schools and the Queen's
Trust regarding the kahua holua.
MS. GALIMBA: Thank you very much. Basically, I just wanted to ask about
the —I believe there is a slide on this site, is that correct? Can you tell me about
it, if there is such a slide?
MR. KALAWE: Okay. After walking on this proposed site, there are two trails,
but it isn't any kahua holua or holua slides because it lacks three components that
is required to be a kahua holua or a holua slide.
MS. GALIMBA: What are the three that are lacking?
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MR. KALAWE: Okay. First of all, you need a running path that's the beginning
of the holua slide. Secondly, the entire holua slide has to be paved. And
normally, if you will find a stone wall it would be knee high and it would be on
the left-hand side going down to the ocean. So, when I went to check out the two
village holua slides, first of all, you have two stone walls approximately three feet
or a little higher going down both on either side of the trail. There's no pavement
within the holua slide. And secondly, there's a lot of curves and twists and bends
and it's very narrow. So, it looks like a cattle trail or consistent with a
mauka/makai trail.
MS. GALIMBA: Okay. Thank you. So, what you're saying is there are multiple
trails there, but in your opinion, not a holua slide?
MR. KALAWE: That's correct.
MS. GALIMBA: Thank you very much. I yield at this time.
MR. KALAWE: Alright. Thank you.
CHR. INABA: Thank you. Coming back here to Hilo. Council Member
Villegas.
Point of Clarification: MS. VILLEGAS: Yeah, just for a quick point of clarification. It's my
understanding that Tom Pohaku Stone, who is a cultural practitioner as well, was
referring to the slide being related to the slide for the koa trees that were felled in
Holualoa were then brought down that slide to the spaces on the coastline where
then they were carved into canoes; just as a point of correction on that.
I also have a question, on Page 11 of the application, there seems to be some
confusion here with my colleagues, and I find it unfortunate that there seems to be
a belief that this is actually an authentic workforce housing project. On Page 11,
it's stated, mid -market, mid -market housing, and the project is not specifically a
workforce project. Administrator Kunz, could you give me a definition to help
clarify what the price range of a mid -market, what would that mean in Kona for
pricing for a mid -market home?
(Note: At this time, Housing Administrator Susan Kunz came forward to
address the members of the Committee.)
MS. KUNZ: So, just to clarify, you would like information on what the market
rates are for affordable housing? When you say mid -market —
MS. VILLEGAS: Not affordable housing. I guess mid -market because —
perhaps, you could answer the question. Once again, I don't know what the
answer is, but it become ambiguous, and in a world now especially in District 7,
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where a mid -market home will sell for $1.2 million, I find it really challenging
then —I just don't know how to get it across to my colleagues that this is not a
workforce housing project. This is not designed for that. It will meet the
requirements that are being required because of the law, but the rest will sell at
market rates, and it will not solve —this is the same equation that's been required
of large home housing developments in Kona for decades, and we still don't have
the housing we need because these homes get purchased at prices that we're
priced out of paradise. So, really, I don't know how to get it through to you that
this is not an authentic workforce housing project and will in fact continue to
inflate property values and cause more people to live in Ka`u and have to drive.
The people that are driving from Ocean View and Ka`u are not going to be able to
afford to live in these townhomes.
(Note: At this time, Planning Consultant Daryn Arai came forward to
address the members of the Committee.)
MR. ARAI: Thanks for the question, Council Member Villegas. I'll try to
answer as best as I can. There's a reason why we emphasize the term mid -
market. You know, it's a loose term but it's simply basically saying, it's for those
who cannot qualify for low income but yet, don't make enough to afford the more
luxurious type of units. And we totally get it, I mean, home and lot sales now
days in Kona, the simplest home is about $1 million; a more moderate home is
probably closer to $2 million. I did look in Kona Vistas, for example, and I do
see some sales in the $2 million range, which is exactly why this project is a
multiple -family apartment style complex because it provides a different type of
product that can hopefully hit that price range that people like middle income
families can better afford.
MS. VILLEGAS: I have a hard time stomaching the hope. The hope to hit that
middle class. I also have a quick question. Who were the original partners for
Kona Vistas Development? Were any of the current partners for Kona Three in
any way associated with the Kona Vistas?
MR. ARAI: No. It was actually a Japanese businessman that was originally part
of the original development. And then there was, Mr. Wheelock mentioned that
in the interim there was also a company from Texas that was involved. But the
current membership of Kona Three, which are all local individuals, Mr. Wheelock
is from Oahu, Mr. Williams and Mr. Higashi over here, they're all local and they
all have that association.
MS. VILLEGAS: Yup, yup. I've heard those things. And then I guess my final
plea to my colleagues on the Council is, you don't live in this district that it will
directly affect. So, your decisions here, it is —I've spent a lot of time and a lot of
money to bring forth all the refutals and all the debunking of cultural and why —
the Leeward Planning Commission sent it to the Cultural Commission, and then
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they skipped the Leeward Planning Commission. If you look at the facts here and
you look at the history of what's happened with these properties, and you look at
the future, I am not against development and authentic workforce development.
But what I'm stating to you right now is the belief of my community and myself,
is that this is not that, and this will do more harm than good, and there are bigger
and broader flooding issues that are going to be related to this. This is not an
authentic workforce housing project, and that is what we need more than
anything. This will provide the minimum necessary and required by law and the
rest will sell at top dollar. I yield.
CHR. INABA: Thank you. Council Member Kimball.
MS. KIMBALL: Thank you. Are these two particular lots, 16 and 17, are going
to be multi -family exclusively, not any single-family units? They're all multi-
family units?
MR. ARAI: That is correct.
MS. KIMBALL: Okay. Yeah. No illusions I think here about what is
happening, you know, we're rezoning. When we rezone, all of the uses permitted
on that zoning are being acknowledged to be there. The only constrictions on the
values about what are put there are the ones that were mentioned already by
affordable housing. So, I don't think any of us have any illusions about that.
Wanted to ask if we have an answer yet from Corporation Counsel about our
ability to have this looked at again by LPC?
(Note: At this time, Corporation Counsel Elizabeth Strance came forward
to address the members of the Committee.)
MS. STRANCE: Thanks, Chair. It's going to take a little bit more time. I've
reviewed the County Charter, the County Code, the Council's Rules, and the
Planning Commission Rules, and it goes one way from the Commissions to the
Council. So, there would have to be some implied authority by the Council but
there's the deadlines for the Commissions to review and forward legislation to
this body, may have some other legal issues attached to it, and so I'm not
comfortable giving an opinion one way or another because I think it requires a
little bit deeper dive.
MS. KIMBALL: Okay. Thank you for looking at that. And again, that remains
my preference just because of the complexity of this and some of the challenges
that have come forward to date. I would like to suggest that we postpone to have
an answer at next hearing. I know that there's amendments. I don't know if you
wanted to deal with them today or not. But I also wanted to suggest, Council
Member Villegas, regarding the comments with the flood plains and any of that, if
you can provide us with somebody, an expert, that could speak to that or
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documentation for next hearing, that would be very much appreciated. I yield,
Chair.
CHR. INABA: Thank you. Council Member Kaneali`i-Kleinfelder. And I just
want to say, I think I do support a postponement. There is an amendment that I
had worked on with the applicants to clarify requirements for affordable housing.
I found a small error that a new communication is now coming. So, I'm hoping
that we can take that up and get that through today because it's all things that I
think we can approve so that when we come back in two weeks, we'd have a
clean draft to read at that time. But Council Member Kaneali`i-Kleinfelder.
MR. KANEALI`I-KLEINFELDER: I'll keep it quick. Condition B, applicant
shall comply with conditions of the approval of the State Land Use Commission.
Is that date correct, January 26, 1984? There was a December 13, 1983.
MR. ARAI: That was the date of the order that was executed, the January 26,
1984.
MR. KANEALI`I-KLEINFELDER: Okay. It's just, in review of the documents
online it didn't quite match as far as the reference date, time of —I wanted to
make sure that's correct. The docket number is right, but little details matter
sometimes. So, if you can, please check on that date.
MR. KANEALI`I-KLEINFELDER: Thank you. I yield.
CHR. INABA: Alright. With that, I'm not sure how long it's going to take to get
that fresh copy of the amendment. So, I'm going to ask if somebody can just
make a motion to introduce the current communication because the next one
coming is just a tad different, and we can get through it so when it comes, we can
take that up.
Motion to Amend: Ms. Lee Loy moved to amend Bill 169 with the contents of
Comm. 896.3. Seconded by Ms. Kimball.
CHR. INABA: If the body doesn't mind, I'll just walk us through what this
amendment is. So, Condition M, the language at the beginning, "Direct access" is
just to make sure that there is a direct access from the property to Queen
Ka`ahumanu so there's no confusion there. There was a request of the applicant
to remove the term "full -movement" from this bill as they do not have support
from the State Department of Transportation for a full -movement intersection.
That full -movement discussion is ongoing but at the current time, we don't want
to require something in an ordinance that is not in line and does not have support
from the Department of Transportation.
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If we move on to Page 2, for Condition P, right now there's a little confusion as to
what "in the project site" means as it relates to land disturbance or construction.
So, that term is removed so it just covers any initiation of construction or land
disturbance activity in general.
Going on to Condition W, we kind of touched in on the affordable housing
requirements here. To re -summarize, we know that there is a State Land Use
Commission order requiring that 10 percent of the total number of units shall be
affordable for those of the low- and moderate -income levels. The Hawaii
Housing Authority, that language, it comes from the Land Use Commission order,
and we're inserting in the specific AMI percentages here because there's so much
confusion as to whose guidelines we're going by. If we're going by HUD
(Housing and Urban Development), it's one set of guidelines, but this is a State
Land Use Commission order. And in line with this, Hawaii Housing Authority
mention,we are going with the guidelines of DBEDT, Department of Business,
Economic Development and Tourism, which houses HHFDC (Hawai`i Housing
Finance and Development Corporation), which is the predecessor, the current
version of the Hawaii Housing Authority. So, going back and really tracking.
These percentages exclude, not by our choice but by the Land Use Commission
order, those in the AMI brackets from 80 percent 120 percent because according
to these definitions, low income are those between 50 and 80 percent of the AMI
and moderate is those from 120-140 percent of the AMI. So, that's why those are
being inserted at this time.
In addition, we're making clear that prior to the sale of any new market rate units,
the 22 affordable units from the Kona Vistas requirement would have to be
completed. In addition, the next —the Subsection 2, speaks to Chapter 11
requirements which were discussed earlier, and that's the 90 affordable housing
credits. And the language specifies that the requirement has to be approved by
the Housing Administrator and be implemented prior to occupancy of any units in
additional phases.
There were some questions as to whether previous affordable housing agreements
are active or not active or where we are. This amendment states that if there are
any affordable housing agreements related to Ordinance 2-131, which is the
predecessor of Bill 169 or what Bill 169 is amending, all of those agreements
would have to be amended to reflect what is being discussed and locked in via
Bill 169's requirements. Because Condition W then is so comprehensive, we can
delete Condition X. Essentially, they were combined into one condition.
And then the last sections of this amendment are just the standardized language of
our change of zone bills regarding extension of time and the ability for the
Council and the Planning Director to initiate the process for reverting a property
back to its original zoning. The only issue with this amendment right now is in
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Number 3, Condition W-1. The last sentence reads, "All units constructed and
sold in accordance with the Land Use Commission order shall be credited towards
the affordable housing requirements required by Chapter 11 of the Hawaii
County Code. And this isn't true because the 22 affordable units stand alone as a
requirement from the previous development. So, they won't earn affordable
housing credits. So, we just want to make sure that that distinction is made.
But I want to take any questions that anyone has on this amendment and hopefully
we'll have the new clean copy soon. But this is again, Communication 896.3, and
we can provide this to Mr. Arai, if you would like a copy. So, taking questions.
And again, it would be my preference that we could have this clarifying language
in a draft before we postpone —or amend it before we postpone it. Any
questions?
MS. KIMBALL: Thank you, Chair.
CHR. INABA: Council Member Kimball. I was just expecting you to start
talking. Go ahead.
MS. KIMBALL: Yeah. Appreciate the amendments. Curious about that gap
between 80 and 120 (percent), and if anybody has any idea why that was excluded
in the LUC order, because that's kind of, for a lot of us, our target area that we're
trying to hit.
MR. ARAI: Yeah. As we've mentioned earlier, it's really trying to understand
what type of standards or policies were in effect at the time back in 1983. So,
even we're not exactly sure. So, when we, you know, when we're working with
Council Member Inaba and it was brought up, we understood the gap. So, it is
what it is, but the effort here is to make sure that whatever is done aligns with the
requirements of the decision and order from the state.
(Note: At this time, Housing Administrator Susan Kunz came forward to
address the members of the Committee.)
MS. KUNZ: So, if I can just add to that. You know, it's a very old order, and so,
when the LUC made that decision, it was based on whatever law was in place at
that time. But looking at the current administrative rules that HHFDC falls under
and having spoken to some of the staff, the way that the D&O is written, because
it says low and moderate, there are categories in the HAR (Hawai`i
Administrative Rules) that talk about low, low and moderate, and moderate. So,
what Council Member Holeka is pointing out are the AMI's related to low and to
moderate.
MS. KIMBALL: And low to moderate, we don't have.
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MS. KUNZ: And so, it currently excludes that.
MS. KIMBALL: Is there a —this is maybe a Corporation Counsel question. I
mean, I'd hate to set something up based on an order from 1984 that had a whole
other set of laws that were tied to it. Is there any way we can get an opinion from
the AG (Attorney General) or something about how to interpret this order under
the more current guidelines? Because this seems prehistoric.
(Note: At this time, Deputy Corporation Counsel Sylvia Wan came
forward to address the members of the Committee.)
MS. WAN: Deputy Corporation Counsel Sylvia Wan. So, the only body that
would be able to change the order would be the Land Use Commission. That
would require an application by the applicant to amend that. We are stuck with
the words that are within the Land Use Commission order. As far as what would
be considered as complying with that order, it would ultimately be the Land Use
Commission that would decide whether or not what is being proposed would
comply or not. But looking at the plain language, we have to apply what are the
regulations that are present today, and that's what it says, and those are the
regulations, and that's what it means.
That being said, yes, the land use order is one component of what is required for
affordable housing for this particular project. But they will also have to comply
with Chapter 11, and Chapter 11 does provide that whole range.
MS. KIMBALL: Wait, wait, wait, wait.
MS. WAN: So, there is potential to still reach that particular AMI bracket, but we
won't know until we figure out exactly how many units are going to provide as
far as meeting their credits that they need to meet under Chapter 11. I'll just note
right now, for those two, low is going to be equivalent to a two -credit level under
our Chapter 11, and the moderate is equivalent to a half credit. So, it's quite a
disparity.
MS. KIMBALL: And the order from the LUC did not indicate a percentage of
the requirement that they're requiring to be one or the other. So, all of these could
be in the 120-140 range?
MS. WAN: Well, it's got to at least have a mixture of both because it says low
and moderate. But it doesn't say what the mixture needs to be.
MS. KIMBALL: Right. So, it has to have at least one of one and all the rest
could be the other?
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CHR. INABA: Chapter 11 requires 36 of the 45 credits to be at the two credit per
unit requirement because that's 40 percent of the total units being —
MS. WAN: Yeah. So again, that's going to require a blending of the two
policies, which is what the land use order talks about specifically. So, right now
the land use order does not say particular percentages as far as low versus
moderate. But, as Council Member Inaba had correctly stated, our Chapter 11
does make some specifications as far as percentages so, we'll have to try to marry
the two.
MS. KIMBALL: Right, but does that apply to the 22?
MS. WAN: It should not.
MS. KIMBALL: No. So, it only applies to the other 90 credits worth of the
project.
MS. WAN: Yes. Because that's the project that would fall under qualifying
under Chapter 11.
MS. KIMBALL: Got it. Clear as mud. Thanks. Yeah. I mean, this is a horrible
paragraph, and I don't blame you for that. It's just super difficult to read and it's
interesting that we're having to accommodate for something from —were you
even born?
CHR. INABA: Of course not.
MS. KIMBALL: No, you weren't. Something a law from a time that people on
this dais were not even a thought. Thank you. I yield, Chair.
CHR. INABA: Alright. Thank you. I need to call for a recess. Our tapes need to
be changed out. We'll reconvene at 5:10 p.m.
Recess: At 5:02 p.m., the Chair called for a recess.
Reconvene: The meeting reconvened at 5:11 p.m.
CHR. INABA: Aloha. Calling this meeting back to order, it's 5:11 p.m. The
current motion on the floor is to amend Bill 169 with the contents of
Communication 896.3, which we covered. And at this time, I'd ask Council
Member Lee Loy if she would withdraw the motion.
Withdraw Motion Ms. Lee Loy withdrew her motion to amend Bill 169 with
to Amend: the contents of Comm. 896.3.
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Motion to Amend: Ms. Kierkiewicz moved to amend Bill 169 with the
contents of Comm. 896.4. Seconded by Ms. Lee Loy.
CHR. INABA: Again, the only difference between this and Comm. 896.3 is on
Page 2, Condition W, Number 1, the last sentence now reads that, "All units
constructed and sold in accordance with the LUC Order, with the exception of the
22 affordable units required by the Kona Vistas Subdivision shall be credited
towards the affordable housing requirements required by Chapter 11 of the
Hawaii County Code." So, it's just very clear that the 22 doesn't count towards
the affordable housing credit requirement. Are there any questions? Okay, there
being none, there's a motion on the floor to amend Bill 169 with the contents of
Communication 896.4. All those in favor?
Vote on Motion The motion to amend Bill 169 with the contents of
to Amend: Comm. 896.4 was carried by the following voice vote:
(Approved)
Ayes: Committee Members Kagiwada,
Kierkiewicz, Kimball, Lee Loy,
Villegas, and Chair Inaba — 6.
Noes: None.
Absent: Committee Member Evans, Galimba,
and Kaneali`i-Kleinfelder — 3.
Excused: None.
CHR. INABA: Back to the main motion. Based on the conversation and some
outstanding research needing to be done, wanting to check the body's stance on a
postponement of Bill 169, as amended, or we can move forward on the vote with
either a favorable or unfavorable.
Motion to Postpone: Ms. Villegas moved to postpone Bill 169, as amended to
Draft 2, to June 18, 2024. Seconded by Ms. Kierkiewicz.
CHR. INABA: Is there any discussion? Sorry.
MS. KIERKIEWICZ: Yeah, Chair, on the postponement. I'll be supporting the
postponement. I think there's some additional clarity that needs to be provided
within the bill. I think there's a large concern about the potential for vacation
rentals even though we know that is not your intention or plan, but finding a way
to sort of codify it in this piece of legislation I think would be extremely helpful.
I think the amendments that Council Member Inaba put forward, you know,
pulling from the LUC D&O is helpful but even that language in itself is very
clunky and requires housing for low and moderate. But the missing middle, the
working class, nothing is really mandated for them here. So, I think some of the
homework on Kona Three's side is to maybe start to think about some numbers
that you guys can commit to building for that missing middle, that way we feel
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comfortable knowing that something is actually going to be built and considered
workforce. Thank you, Chair.
CHR. INABA: Thank you, Council Member Kierkiewicz. Any further
discussion on the postponement? If not, all those in favor of postponing Bill 169,
as amended, to the June 181h Committee meeting please say "aye."
Vote on Motion The motion to postpone Bill 169, as amended to Draft 2,
to Postpone: to June 18, 2024, was carried by the following voice vote:
(Approved)
Ayes: Committee Members Kagiwada,
Kierkiewicz, Kimball, Lee Loy,
Villegas, and Chair Inaba — 6.
Noes: None.
Absent: Committee Member Evans, Galimba,
and Kaneali`i-Kleinfelder — 3.
Excused: None.
CHR. INABA: Thank you very much. This brings us to the end of our agenda.
ADJOURN- There being no further business, Chair Inaba adjourned the meeting
MENT: at 5:15 p.m.
CHR. INABA: Mahalo.
Approved:
Mr. Holeka Goro Inaba, Chair
Legislative Approvals and Acquisitions Committee
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