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HomeMy WebLinkAboutCOM 0919.001 1998-2000 ON*`'.°.`. M~k, s Virginia Goldstein 0 Stephen K. Yamashiro ~~,In { Director Mayor Russell Kokubun 'Deputy Director arir~ ~ aR < Oi N~ n l .7 CD1Iuty o (,:0.UfUMii ~,I I PLANNING DEPARTMENT 25 Aupuni Street, Room 109 • Hilo, Hawaii 96720-4252 (808) 961-8288 • Fax (908) 961-8742 September 14, 2000 Honorable James Y. Arakaki, Chairman and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chairman Arakaki and Members: Amendment to Change of Zone Ordinance No. 91 116 (REZ 698) Applicant: Kaneshiro and Sons Enterprises, Ltd. Request: Extension of Time to Condition B, Delete Condition C Tax Map Key: 1-5-7:20 For your information, attached is the August 15, 2000, Planning Commission hearing transcript on the above matter. Should you have any questions, please contact me. Sincerely, lrginia Goldstein, Director Planning Department Att. 9/9 Oq Comm. No. File No. Ref. To: G Ref. Date SEP 1 2009 PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT August 15, 2000 A regularly advertised hearing on the application of KANESHIRO AND SONS ENTERPRISES, LTD. was called to order at 9:39 a.m. in the County Building, Councilroom-Room 201, 25 Aupuni Street, Hilo, Hawaii, with First-Vice Chairman Geraldine Giffin presiding. PRESENT: Geraldine Giffin Richard Baker, Jr. (From 10:10 a.m.) Earl Fujikawa Florence Kubota Aurelio Mina, Jr. Mildred Mosher Francis Smith James Souza Grant Togashi Virginia Goldstein, Planning Director Alice Kawaha, Staff Planner Susan Gagorik, Staff Planner Al Jeremiah, Deputy Corporation Counsel Glenn Ahuna representing Department of Water Supply Kelly Gomes representing Department of Public Works And approximately 8 people from the public in attendance. GIFFIN: We are on Application No. 2, Kaneshiro and Sons Enterprises, Ltd, their request to amend Condition B (secure Final Plan Approval) and delete Condition C (commence construction) of Ordinance No. 91-116, which reclassified approximately 4.901 acres of land from an Agricultural (A-la) to Neighborhood Commercial (CN-20) zoned district. The property is located at the junction of the Pahoa Bypass Road and Keaau-Pahoa Road and also bordered by Kahakai Boulevard, Keonepoko Iki Homesteads, Pahoa, Puna, Hawaii, TMK: 1-5-7:20. Staff. KAWAHA: Thank you, Mr. Chairman, Ms. Chairman. GIFFIN: Thank you. KAWAHA: If I can direct your attention to the location map, this dark line here is the Pahoa Bypass Road. This is in the direction going to Keaau. This thinner black line here 1 is the old road leading to the Pahoa Village area. The subject property is here in pink, which is presently Neighborhood Commercial. For the Commissioners' information, also, there is this property here that was rezoned, I believe it was last year or the year before, to CN. Also, and also recently, there's a property, I believe it's this one here, that was also rezoned to MCK In looking at the site plan, this is the Kahakai Boulevard. The subject property is outlined in this blue area. The road to the Pahoa Town area would be going in this direction, and the roadway comes out this way that would take you to the Keaau-Pahoa Roadway. The applicant, back in 1991, proposed for a supermarket on the subject property, which was then called Food Fair. Subsequent to that, the property was sold to Sure Save Supermarket, and the proposal or development hasn't come to fruition since then. However, the present owner, or former owner, Kaneshiro and Sons Enterprises, are now, want to pursue with this development of the property. GIFFIN: Commissioners, any questions of staff? MOSHER: Alice, where's Kahakai? KAWAHA: In looking at this map, it's this white line here. This is, at one time, this Kahakai Boulevard led to the Hawaiian Beaches parks and area but it was cut off by the Pahoa Bypass. So this Kahakai. This is the road leads to the Pahoa Town area, so it's right at the corner. MOSHER: Kahakai Boulevard is still there, you just KAWAHA: Yes. MOSHER: Turn left and that's the straight one? KAWAHA: This is Kahakai Boulevard, right. There's no entrance from the Pahoa Bypass, so it was severed by this Pahoa Bypass. MOSHER: That's right. KAWAHA: Yeah. MOSHER: Okay. GIFFIN: Any other questions of staff? Commissioner Togashi? Seeing none, will the applicant or representative and all those signed up to testify or wishing to testify, please stand and come forward. Oh, thank you. Yeah, I'd like to swear all of you in at the same 2 time. Please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? FUKE: I do. KANESHIRO: I do. PRANKS: I do. GIFFIN: Thank you. Maybe we should start with you, Mr. Fuke. Please introduce yourself, give us your name and address. FUKE: Sure. Good morning, Madam Chair, Members of the Commission, my name is Sidney Fuke. I am a planner. I'm here assisting the applicant, Glenn Kaneshiro, who is seated to my right. My business address is 100 Pauahi Street, Hilo 96720. GIFFIN: Okay. Mr. Kaneshiro. KANESHIRO: My name is Glenn Kaneshiro. I am Vice President of Kaneshiro and Sons Enterprise. My residence is 1400 Hawaii Belt Road, Hilo. GIFFIN: Thank you. FUKE: Madam Chair, I'd just like to provide some general information for the Commissioners' background information. First of all, we would like to express our appreciation to the staff for understanding the circumstances relating to this particular request for a time extension. The applicant has had a chance to review the staff's background report as well as the proposed recommendations and, you know, understand them and found them to be acceptable. Just to give you some background, back in 19, you know, this was before 1991, we did have Food Fair. Food Fair was doing business, well, actually, the original company was called and still is called Pacific Hawaiian Ltd., and they were doing business as Food Fair. And Food Fair had, was the operating arm for three retail stores. They had one in Na`alehu, one in downtown Hilo, and the other one most of you are familiar with was on Kino`ole Street. They wanted to expand. They saw a need to provide their kind of services in Pahoa or in the Lower Puna area. They secured this property, and they subsequently applied for a change of zone and was successful in getting it, with the intention to construct a similar type of retail supermarket operation on the property. The property is about, a little less than five acres in size. So the rezoning was approved back in 1991. And I think, for the most part, I think the Commissioners are well aware that, you know, in the early `90s, you know, we had the Gulf War. And a whole bunch of different things happened that affected the global economy and 3 more particularly, you know, what happened here to Hawaii; and it has probably taken about ten years before we're finally beginning to come out of that situation. And businesses like Food Fair also sustained the same kind of impact. So what happened was that back in 1994, you know, the two stores that they had here in Hilo were kind of stable, but eventually they were given an offer by Sure Save, you know, to take over the retail operations in 1994, and that they did. So what Food Fair did, basically, was sell all of their assets and liabilities for the three stores to Sure Save in 1994. It was really a tough business decision that Food Fair had to make because they had a long-term commitment to the community. They've been in the community for, you know, basically like with Glenn, three generations, and it was very, a tough decision that they did make. Now some of the terms of the sale or the transfer of this interest was that they still retained interest to all of the different properties, the Downtown, the Kino`ole, and also the subject property. But what they did have was they had offered a lease rent, you know, to, at that time, Sure Save. And, but they also had as part of the agreement was like a non-competition clause so that Food Fair could not engage in any retail business as long as, I don't know, may have been for a certain period of time. And they also gave Sure Save the first right of refusal for anything that happened on this Pahoa property for retail operation. The rest is pretty much like history. Because as some of you are familiar with what happened here in Hilo, eventually back in 1995, Sure Save relinquished its operations at the Downtown, at Downtown. And Pacific Hawaiian, actually Food Fair obviously was not able to collect its lease rent for that long a period, was not successful in finding another tenant. And back in 1999, Sure Save declared bankruptcy and along the way, of course, it affected what happened to their Kino`ole, Food Fair's Kino'ole property. But this, however, like Food Fair still had the legal ability to develop the Pahoa property if they wanted to but, obviously, you know, it was falling on hard times for everybody. And so they did not wish, on their own, to build, they were looking for suitors to build on the Pahoa property, but they were not successful. They feel, however, that now that things have straightened out with their two other properties in Downtown and also Kino'ole, and with the changing overall economic situation, that they would be in a better position to directly or indirectly have something happen on the property that would provide the retail and commercial needs for the Lower Puna area. We believe that the non-development was not really due to a lack of interest, but as I explained earlier, it really was the financial capacity and the overall economic environment that precluded Food Fair or Pacific Hawaiian from moving forward on this Pahoa property. The condition has changed somewhat. The overall economic condition has changed. There's been a resolution of the interest with Sure Save. There's no encumbrance right now on the Pahoa property. And we would also like to note that the original reasons for approving the project have not changed. You know, the regulatory conditions are still the same. The General Plan has not been changed. The infrastructure is still available. Water is still available. There's still conditions associated with the original change of zone condition that would make sure that all of the required onsite infra offsite infrastructure are taken care of. And I'm sure that 4 you, as well as probably the general community, realize that there still is a demand for retail services out in that area. And so it's hoped that with this additional time extension that is being requested, that within a five-year time period that something will happen in that, on that property. And, you know, we expect, we respectfully request for your extension and approval. GIFFIN: Thank you. Commissioners, do you have any questions of Mr. Fuke? Commissioner Togashi. TOGASHI: Thank you, Madam Chair. Just one question about these, there were some development rights that were apparently sold by, or acquired by a competitor and Food Fair has since reacquired the development rights. Can you expound on that, please. FUKE: You mean on this property? TOGASHI: Yes. FUKE: What happened was that the property was always under Pacific Hawaiian or, you know, Food Fair, Pahoa; and, however, they had given to Sure Save the first right of refusal to be the first tenant on that property. So whoever built it, whether it was Food Fair or another entity, Sure Save had the first right of refusal. And, understandably, over that time, Sure Save never made any effort to try to expand to that area and, let alone, Pacific Hawaiian or Food Fair was not really in a physical position to start the construction on the project. And even if they did, there was a question as far as whether Food Fair, excuse me, there was a question as far as whether Sure Save would be the suitor. But they were, Sure Save basically was given the first right to refuse to get into that property. TOGASHI: So the reacquisition of these rights was because of the bankruptcy court? FUKE: That's correct. TOGASHI: Okay. FUKE: Correct. GIFFIN: Any other questions of the applicant or his representative? Commissioner Kubota. KUBOTA: I have a question of the GIFFIN: Director? KUBOTA: Director. 5 GIFFIN: Sure. KUBOTA: I can wait. GIFFIN: No, go ahead. KUBOTA: You know, looking at your chronology, I noticed that the last request for down zoning was in 1996, whether to down zone or not to down zone, the communication. Then in 2000, February, the County Council requests the down zoning. What was going on between '96 and 2000, four years, I mean, between the applicant and the County Planning Department? Were there messages or communications going back and forth as to requesting and, I mean with a down zoning? GOLDSTEIN: I'm going to pass it to staff, because KUBOTA: Okay. GOLDSTEIN: The details I'm not real familiar with. KUBOTA: Thank you. KAWAHA: Yeah, if I may GIFFIN: Alice. KAWAHA: Yeah, if I may clarify that. The, actually, there was no other written communication between that time because my under, our understanding was that the applicant, not the applicant but the representative at that time was supposed to be having discussion with the applicant to see whether they would still proceed with this development or not. But we haven't received any written response since 1996. GIFFIN: Alice, who is this representative that you refer to? KAWAHA: It was Al Konishi, yeah, Konishi. GIFFIN: Commissioner Kubota KUBOTA: Yes. GIFFIN: Your question fully answered? FUKE: Maybe I can kind of like expand KUBOTA: Well, to an extent, yes. 6 FUKE: A little bit on that. Actually, like, you know, from the time after the applicant had requested for additional time, you know, of the Planning Department, and I don't know whether the Department had formally responded to say, yeah, you can have additional time But I think that the understanding that the applicant had, which is really Kaneshiro and Sons or Pacific Hawaiian because they still own the property You know, it was a state of flux right now. Because you've got to remember that this is 1996, 1997, their downtown operation which was operated by Sure Save closed down in 1995, and at the Kino`ole Store, you know, Sure Save was also having a difficult time during that time. And so there was, had a lot of negotiations between Sure Save and Food Fair, at that time, in terms of trying to renegotiate the terms of the lease at the existing Food Fair operation. And it was finally consum you know, we understand it was occurring, I think it was 1998 or 1999. So I think that during that two or three year period, a lot of the focus was devoted to trying to see how Sure Save could be made more solvent by reducing some of the original terms between Food Fair and Mall Food or Sure Save. So, understandably, the interest was not at, on the Pahoa property. KUBOTA: I have one more question. GIFFIN: Yes. KUBOTA: I don't know who to address this to, I guess to the Planning Director. Would you clarify for me and help me understand. You know, in the draft from County Council, there's a statement that I don't quite understand, and it's because I don't understand taxes and all of that assessment. Mr., how do you pronounce that name, Pranke? GOLDSTEIN: Pranke. KUBOTA: Pranke? Okay. Says that GIFFIN: Where are you? KUBOTA: I'm on Page PC:-25. GIFFIN: Okay. KUBOTA: Page 3. GIFFIN: Three or two? KUBOTA: Three. GIFFIN: Okay. What paragraph? 7 KUBOTA: First, well, it's the first complete paragraph. GIFFIN: We KUBOTA: Okay. GIFFIN: Beginning with "We?" KUBOTA: Yeah, "We," "We." So we, second sentence says, "So we don't think somebody should have a $2 million windfall bonus because the law wasn't followed." What is that $2 million bonus? What is he referring to? How do you get a bonus? GOLDSTEIN: Well, let me respond this way. Mr. Pranke is here so maybe you can KUBOTA: Oh. GOLDSTEIN: Later address him. KUBOTA: Oh, okay. GOLDSTEIN: But I believe what he's saying is that the zoning itself has conferred further development rights, and the rights come with a, you know, in that sense, makes the property GIFFIN: Valuable. GOLDSTEIN: More valuable. KUBOTA: Valuable. GOLDSTEIN: Yes. KUBOTA: I see. Okay. So it has nothing to do with tax assessment or anything of that sort, it's just GOLDSTEIN: Well, it might. The taxes, I'm sure, increase KUBOTA: Wouldn't it be higher? GOLDSTEIN: It would have been, if it changed it from RS to a CN. KUBOTA: It wouldn't be the reverse. I mean, if you down zoned it, the, you would be collecting less taxes, right? I mean, the County would. 8 GOLDSTEIN: I'm going to assume that. KUBOTA: Okay. I'm just asking for clarification GOLDSTEIN: Yeah. Yeah. KUBOTA: Because I am not very clear on that. Okay. Thank you. GIFFIN: Any other questions? MOSHER: My question was what Flo asked. GIFFIN: Okay. No other questions of the applicant or his representative? Okay. Hearing none, there is room here for Mr. Del Pranke; will you please come forward. Will you please state your name and your address. PRANKE: My name is Del Pranke. I live in Hawaiian Shores Subdivision. GIFFIN: Thank you. PRANKS: I don't know if each of you have seen the rezoning file; I think Alice may have it. In that file is a stack of 50 papers with approximately 30 signatures on each of those pages. Some of them have more, some of them have less, but in averaging it out there's about 50, about 30, sorry, 30 signatures on each one. These are signed by people in the area in the early 1990s who wanted to have a supermarket on this place. Over the years, people keep saying what ever happened to the supermarket? What ever happened to the supermarket? Everybody that I've talked to in Puna, in Pahoa, feels betrayed by Kaneshiro and Sons. Kaneshiro and Sons sold the right of first refusal when they ran into financial trouble or when they made their deal. They sold the right of first refusal to that property that they promised they were going to build a supermarket on when those people signed those petitions. The people in Pahoa were not treated like neighbors, they were not treated like somebody that was being cared for, they were treated like aphids to be milked. Kaneshiro and Sons sold the right of first refusal, paid, that was paid for in cash; and then the court terminated that right of first refusal so that's a windfall that they got. Whatever amount they sold that right of first refusal for, they kept. The court terminated that right of first refusal under the bankruptcy situation with Sure Save, and so whatever was sold for that right of first refusal, they kept. Now that doesn't really have anything to do with you, but I just want you to know who you're dealing with here. After all these folks put their trust in these folks, they let us down. They did worse than let us down, they sold us out. As for when did this, yes, Mr. Konishi, the County Clerk, has been the attorney, Konishi and Black, the attorney of record, for Mr., for Kaneshiro and Sons. That struck us as a little bit unusual. Now, Mr. Konishi apparently has backed out of sending any more documents. 9 There is one in there from him. However, I saw nothing in that file that says that he has recused himself or has withdrawn from this case as the attorney of record. So now we have Mr. Fuke, whose abilities and knowledge are well known, representing, but not as, not in a legal status, I assume. The reason the first situation occurred in 1996 was because of a meeting that Mrs. Goldstein and I attended in Hawaiian Shores Subdivision. At that meeting were her, myself, Al Smith, Eddie Alonzo, former member from Puna, formerly from here, Mr. Bob Ross, Mr. Hugh Matthews, Norma Zimmerman, Barbara New, and Bea Powell, all those people from Hawaiian Shores. At that time, we said, what happened to our supermarket? The law said that this was supposed to be rezoned back to Agriculture if they didn't perform. And Mrs. Goldstein says I'll look into it. We looked. We kept following this over the years, and finally I just had enough. I went to the Planning Committee in February 15`" of this year and brought it to them, and that's the first time anything has happened on this. And instead of rezoning back to Ag as it was required, as the law says it must be Now do we want that out there? No. And I think we can, we may be able to come up with some sort of a compromise here. But we would rather not be used as pawns in a scheme to make money off of us when we aren't going to get what we said. Mr. Fuke says we hope something will happen in the next five years. No plan, no promises, no nothing. We hope something will happen in the next five years on this parcel of property. Well, we've been hoping something would happen for the last ten years. Yes, we would like to have that supermarket, but it's not going to happen. In fact, in their plea, in Kaneshiro and Sons' request to you folks, let's see if I can find it here, I'm sorry. Well, in the request in there, they talk about a potential client for this property. What they did was sell the right of first refusal for the first 10,000 square feet to Sure Save. That would be just about large enough for a Wiki-Wiki Mart. We would not have had a supermarket had the economy gone on and Sure Save had used their right of first refusal, we would have had a Wiki-Wiki Mart, and that's not the same. We have a 7-11, we have Pahoa Cash and Carry, we have smaller markets in the area. That would not have been the supermarket that people signed their names to and gave their trust to this company for. I know these folks have a long reputation. I used to shop there. I used to drive there to shop myself. But we don't appreciate the way we were treated out there. I would suggest two, one of two things. We would not like to have this turned back if, if we're going to get a supermarket. But if we're not going to, if they can't prove to us that they're going to build a supermarket in the next five years, then they shouldn't get the extension. They've already had an eight-year illegal extension in our eyes, or a six-year illegal extension, I'm sorry. But I would, I would request that either this Commission or a subcommittee of this Commission come to Pahoa. I promise you if we, whatever building we get, we'll fill it unless we use the Pahoa High School gym. You will hear from people about what they want in this particular piece of property. And it isn't to be jerked around for another five years. That is not what they want. That's not what they're telling me. 10 GIFFIN: Thank you very much. Commissioners, any questions of Mr. Pranke? Mrs. Kubota. KUBOTA: I'll let Jimmy go first. SOUZA: Thank you. I take it that you are not against Mr. Kaneshiro building the supermarket, a supermarket if he does it within five years. PRANKS: If they have a real plan to do so, yes. If they have a plan to lease it to someone who would build a supermarket within the five years, that's okay, too. I don't care whether they build it or not, but somebody would build a supermarket there. That would be something that I would approve. Remember, I'm only speaking for myself. I've gotten a lot of input from people. I hear about this all the time. Even Al Smith, who doesn't seem to know what's going on with this says, "What's going on with the supermarket?" every time he sees me. But, I'm sorry, I don't mean to belabor this, I am only speaking for myself. I want you GIFFIN: Okay. PRANKS: To know that. But the input I'm getting from people is yes, they would like to have the supermarket if we can be assured that we will get it. But we haven't had any performance. In fact, we feel like we've been sold out because of that right of first refusal. GIFFIN: Okay. Commissioner Wait, before I call on you, I just want to clarify one thing. PRANKS: Yes, ma'am. GIFFIN: Earlier in your testimony, you implied that you represented a whole bunch of people. And now you've just clarified that, again, to the contrary. You do not represent a community association or a group of people? PRANKE: No, I never said that. As a matter of fact, I signed up, I haven't, I don't represent I never signed up or said that I represent anybody. I said GIFFIN: So you are speaking on behalf of yourself? PRANKS: I was at a meeting with these folks. GIFFIN: Okay. PRANKE: From our subdivision. GIFFIN: Okay. 11 PRANKE: But I don't, certainly don't represent anybody but myself. GIFFIN: Okay. I wanted to clarify that. PRANKS: And the opinions GIFFIN: For the record. PRANKS: That have been given to me. But I can't GIFFIN: I think that that's what I might have misunderstood. PRANKS: Yeah. Okay. GIFFIN: Okay. Thank you. PRANKE: I have one other question. GIFFIN: Well, there is a. Commissioner who would like to ask you a question. PRANKE: Okay. KUBOTA: Mr. Pranke. GIFFIN: Commissioner Kubota. PRANKE: Yes, ma'am. KUBOTA: Throughout your testimony, you constantly refer to a couple of phrases: "They sold us out," "We're being used." Would you clarify that for me? PRANKE: Sure. You asked about the, my statement. When I speak in, when I speak extemporaneously, sometimes my words don't come as fluently as I would like. KUBOTA: Oh, we're all the same. PRANKE: When I said $2 million, I'm referring to The property was purchased in 1989 for $250,000. In talking with real estate people in Puna, just off the top of their head, they estimate the property would be worth $2 million now in its current zoning, okay. And our Fine, that's great, you know. People wanted this rezoned, that's great. But not if somebody's just going to hang on to it and then use it for their own fmancial interest against the interests of the community. Don't forget, the big reason that the, this thing was originally passed was that stack of signatures from people who said, yes, we would like this rezoned. 12 There was nothing around this property that was rezoned commercially at that time. Now there is more simply because that property was rezoned agriculturally partly. But it all came from those signatures that those folks put their trust in. And they were told it would be built within four or five years and that they would have Well, they assumed from the contract, and this is a contract. It says, I guess it can't be any plainer than what the ordinance says, and I'm sorry, I'm trying to find it here. The original Ordinance 91-116, the last, on page 6 of that, "Further should any of the conditions not be met or substantially complied with in a timely fashion, the Director shall initiate rezoning of the area to its original or more appropriate designation." KUBOTA: So in your feeling of being sold out and let down, you're totally dismissing the Kaneshiro Enterprises' difficulty during those years financially? PRANKE: No, I'm not dismissing those. KUBOTA: Oh, well, you're following the thought that they had it rezoned to fatten their pockets PRANKS: No, no, no, no. I didn't say that. KUBOTA: That's why you feel betrayed. PRANKS: No. KUBOTA: No? PRANKE: We feel betrayed because they promised a supermarket, and they didn't follow through. KUBOTA: Yeah, but they have PRANKE: The people in Puna, the people in my subdivision, still drove all the way into Hilo to shop KUBOTA: Yeah. PRANKE: During those KUBOTA: I understand that. PRANKS: Lean times KUBOTA: Sure. 13 PRANKS: When gas prices were so high and people were having problems and other people besides Kaneshiro and Sons were having the same problems. (Chairman Baker arrived at this time, 10:10 a.m. PRANKE: We were still driving there. Now, if I can go back a few years when the Pascual family, Donald Pascual, wanted to build a market there on the corner of Paradise and Government Road. I'm sorry, I don't mean to digress but at that time, Sure Save opposed it. Everybody in the community that showed up at the Police, at the, excuse me, force of habit, at the Planning Commission meeting was in favor of the Pascual change, and yet it was voted down because Sure Save was against it. And these folks sold the right of first refusal to Sure Save, the people who had kept us from having even a small market there at that time. GIFFIN: Any other KUBOTA: I guess GIFFIN: I'm sorry. KUBOTA: Just, I'll close in a few minutes. I guess I'm having to pose these questions to you because I don't quite understand where you're coming from. In your testimony to the County Council, you want this shopping center, Pahoa wants it, the community wants it. You refer to the stacks of petitioners that wanted it many years ago when the concept was first visualized, and yet you are saying downgrade it. PRANKS: No, I didn't say downgrade it. GIFFIN: No, no, no. KUBOTA: Oh, I thought PRANKE: I said KUBOTA: You said PRANKE: If they can't provide us with a plan today KUBOTA: Okay. PRANKS: Then don't approve this, don't send it on to the Council. The Council already knows what to do. Send on to the Council the original rules which Mrs. Goldstein was supposed to have done in 1995 or '96 to down zone it. But there's no plan here. There's no plan. We're being sold another pie in the sky kind of thing. And if they want, then let them come up with a plan and come back to the people and see if they can get those same 14 signatures again or as many signatures again to rezone it. It's just not right to continue the wrong thinking just because it's promised that it'll be changed. The promises have not, the promises have been KUBOTA: Okay. PRANKS: Been very in the air. Now, there's one thing that wasn't on here; and in checking with the tax assessment office, with the Real Property Tax office, I find that as late as last year, Kaneshiro and Sons was paying taxes on that property for a building on that property, a house. Is that house there, Alice? KAWAHA: I know there used to be a house but I don't know if it's still, I didn't see any PRANKS: I KAWAHA: Home on the property. PRANKE: I'm sorry, I'm acting like a lawyer, I guess; and I shouldn't do that with all the problems. These are the pictures. There's no house there. The house was removed, and fill was brought in, and a bulldozer was used to move that fill around. I can't tell you there was, over the amount. But I know that fill was brought in, and that the house was removed, and there was never a grubbing permit permitted. In other words, work was done on this land illegally. And this is the kind of thing that goes on, that has gone on with the property. Now GIFFIN: Mr. Pranke? PRANKE: Yes. GIFFIN: May I summarize and see PRANKE: Yes. GIFFIN: If, and you validate whether or not what I'm saying is accurate. You are not against the request of this applicant if he can come up with a specific plan and a timetable for a supermarket, is that correct? PRANKE: More important than that is I believe that either this Committee or a subcommittee should come to Pahoa in the evening when folks can get there. And we will provide you with all the numbers of people that, so that you can get from them what they feel about this and not just me, because not many people can take off at this time of the morning. As a matter of fact, I had to make extraordinary arrangements myself. But, essentially, 15 everybody, everybody that has talked to me about this, nobody has felt the other way, is that they don't, they feel betrayed about this situation. GIFFIN: But given the current request PRANKS: Yeah? GIFFIN: If, like you stated earlier, if they did come up with a plan, a timetable, and a specific supermarket, do you think that you and the members of your community would be in favor of this proposal? PRANKE: Not at this point. Here's why. The law says that this was supposed to have been rescinded. To change the contract, which is what the law was at that point, at this time, would be wrong. If I were to do this, I would send this to the Finance Committee, or the Planning Committee, with a non-favorable recommendation and then let these folks come back with real plans at a further time. There's a second option. If they're so concerned about Lower Puna, about Pahoa, they could donate the land to the Pahoa Mainstreet and let them lease the property. I'll bet you they would find somebody to build a supermarket right away; and then the money from the leasing of that land would go to the Pahoa Mainstreet. I don't suppose that's going to be something that's going to be acceptable. But if they don't build a supermarket in five years, why shouldn't that be in there? If they don't build a supermarket within five years, they donate the land to the Pahoa Mainstreet, a non-profit agency, and they take a tax write-off, and we let the people of Puna, Lower Puna do it, deal with it. GIFFIN: Thank you very much. PRANKE: So-. GIFFIN: Commissioners, any other questions of Mr. Pranke? Commissioner Mosher. MOSHER: Not of Mr. Pranke, but I would like to ask GIFFIN: Mr. Jeremiah. MOSHER: Mr. Jeremiah, thank you, a question. As I understand, we are authorized to recommend to the County Council a rezoning application or an extension of something within that application, within the rezoning. However, I don't believe that we're authorized to specify that within a specific zone only a supermarket can be built, that within that particular zone there are a number of alternatives but we Or are we permitted, do we have the authority to say within this CV zone we want only a supermarket, period? 16 JEREMIAH: I think you answered your own question in that, you know, there are other uses permitted, you know, in that particular zone. I'm sure when it's transmitted to the County Council and its committees that the minutes of this meeting and any expressions of concern by the various Commissioners would be part of that record and they could read that. You are concerned that MOSHER: So we can attach to our JEREMIAH: It only be MOSHER: Recommendation that we want only a supermarket to be put in there? JEREMIAH: If you want to phrase it in the form of a recommendation, fine. MOSHER: Are we allowed to do that since we're only recommending? JEREMIAH: As I said earlier, you know, it will not, you know, prohibit the applicant, you know, the various different uses which the zoning permits. However, you can, you know, put it in your transmittal to the Council that this body, this body feels that this should be a supermarket, fine. I think it's a foregone conclusion for the past history of this project, and Mr. Pranke had already gone to the County Council that there is a need and there is a want for a supermarket in the area. And if this Commission wishes to, you know, state it for the record, fine. That would be all right. MOSHER: Okay. Thank you. I didn't think we had the authority to do that, that Thank you. GIFFIN: Any other questions of the applicant, or Mr. Pranke, or of his representative? FUKE: Madam Chair, can I make a few comments, please? GIFFIN: Yes. FUKE: In response to some of the comments that were made by Mr. Pranke as well as to respond to some of the questions that the Commissioners may have had on that, I'd like to make several, I guess, references, I think. One is that in terms of the zoning ordinance, Mr. Pranke read it accurately, in a sense that the condition reads that," Should any of the conditions not be met or substantially complied with in a timely fashion, the Director," which is the Planning Director, "shall initiate rezoning of the area to its original or more appropriate designation." I think the critical thing over here is that since 1996, whether through action or inaction, the Director had the discretion to determine whether there has been substantial or non-substantial compliance. And I would suspect that because nothing had happened over the last three or four years until the time that the Council had mandated 17 something happening, that the Director indirectly or directly conceded that there has been, to some extent, some measure of compliance with the rezoning and, as a result, non-initiation. So we don't believe that there's any inherent violation, you know, of the zoning, the existing zoning amendment as it stands right now. Relative to the issue of whether a zoning amendment could be made wherein you would specifically limit the type of uses within the commercial neighborhood district, it's my understanding based on other situations that that would be a form of contract zoning and that may be subject to legal challenge. And so if that would be the recommendation on the part of the Planning Commission, then it would be incumbent, I think, on the applicant to, you know, probably not so much from a standpoint of whether they would do it or not do it, you know, the project, but it's more from a standpoint of whether that would be legally appropriate, you know. We'd have to raise that issue to the County Council. On the issue of like demand, I think all of us, we really would, you know, if we had our choice, you know, we would want to have more restaurants here in Hilo. You know, my son would want to have like a Gap or a J. Crew store here in Hilo. But why they're not here? You know, we would want to see Costco, we would want to see more kind of retail establishments, but it boils down to a business decision on the part of the different enterprises, whether they want to come or not come. And if they feel that they're going to open up a business and definitely lose money, then they won't come in. And I think that to expect any private entrepreneur to get into an area where they know that it's not going to be profitable or they're going to be losing money, I think it's going to be foolhardy. I think that at the same time, if there is a demand and, you know, whether it's on this property or somewhere in the Lower Puna, you know, for, you know, what Mr. Kaneshiro had plans back in 1990 and 1991, you would find requests made by other developers for similarly sized properties, three or four acres, and come up with a supermarket. Just in the same way how that the Commission have processed a number of rezoning applications in the West Hawaii area because "the economy is hot" and there's a lot of demand for it, so people come in and they actually build. And, likewise, I think that if you had the similar kind of demand where people, the developer knows that they would make some money and not lose money, then I think you would find more requests, you know, out in that, the Lower Puna area for more commercial zoning. But I think the proof of the pudding is like whether there have been any. Alice kind of, your staff pointed out that there were only two rezoning applications, and they were recent, 19 what, 1999 .and 2000; and part of the reason why, maybe there's a changing economy, you know. So the situation has changed, you know, dramatically since 1990, 1991, 1990 when the project first got started. And with that, I think that, you know, I'd like to just kind of close by noting that Mr. Kaneshiro has every intention, whether it's them or someone else, to see something happening on the property that would fulfill the retail service needs for the Lower Puna area. Whether it's the 10,000 square foot establishment or something that's much larger still remains 18 to be seen. But in terms of where their heart is, where their mind is, that's kind of where they want to go. GIFFIN: Commissioners, any other questions? PRANKS: Madam Chair, can I re GIFFIN: Hang on just a minute. Commissioner Souza. SOUZA: Mr. Fuke, one other thing that I think frustrates me and leaves a big question mark I see in written testimony that the proposal is that construction will be completed in five years, am I right? Will be completed in five years? FUKE: Correct. I think that what SOUZA: Well, okay, that's all. If I understand that it will be, I have no objection in approving the project if it will be completed in five years. The frustration is this: Remember, in 1996 and prior to that, when the permit was supposed to be revoked, it was not. So why are we putting here it shall be constructed in five years? Are we going to have another five-year grace period because maybe Planning Department did not take action? That's what bothers me. What do you suggest that we put in here that it will be completed in five years or what would the penalty be? FUKE: I think the, if you wish to tie it down a little bit further, I think it's the issue of whether there's going to be any extension given to that five years. If there are no extensions, then it's kind of clear that any extension would have to be processed through the same process that we're going through right now, which is through the Planning Commission and the County Council; there would be no administrative extension. And in so doing then, what you would be doing is tying the hands of the Planning Director that there would be no discretion on the Director's part, and that would be the only suggestion that I could give. The reason why it was changed to like, you know, five-year construction period, the original condition, I think, like in the years past, you know, there were, there were time limits. Like, you know, you have to submit plans within a certain period of time and then complete it within a certain period of time. And so what I think the Department and the Commission, you know, have accepted over the last few years is that just, to just have a straight when it's going to be done by. So that's the reason why it arrived at like a five-year construction period. I think that's kind of standard on all of your other rezoning applications, those SMA permits that you have right now. But to answer your question specifically, I think if you wish to just tie it down to a five-year situation with no if, ands, or buts, then you would have to eliminate the provision that gives the Planning Director the right to allow for any administrative extension. GIFFIN: Any other comments? Commissioner Mosher. 19 MOSHER: Yeah, I have a question of Sidney or maybe Virginia. Being completed within five years, does that mean the date of occupancy? You know, they have a certain kind of occupancy GOLDSTEIN: 1 would take it at that, as that, yes. MOSHER: Okay. GIFFIN: Okay. Commissioner Togashi. TOGASHI: So if we were to, let's say along those lines, if we were to, let's say, delete Condition K, can that be done given the, I guess, you know, it's an amendment to, I mean Conditions, what, B and C? I mean can you delete a condition without it being agendized? I mean if, I mean that's a possi GIFFIN: No, I hear what you're saying. TOGASHI: Would it require a continuance, I guess? GIFFIN: Alice? KAWAHA: I would think if it's the Planning Commission's recommendation to the Council, I don't think it needs to be put on the agenda, because what we put on the agenda is the request of the applicant. GIFFIN: Does that answer your question? TOGASHI: Yes, it does. Yeah. GIFFIN: Any other questions of the Commissioners KUBOTA: I don't have a GIFFIN: By the Commissioners, I'm sorry. KUBOTA: I don't have any questions, but I feel comfortable with the rewording of Condition B in the ordinance. GIFFIN: Okay. KUBOTA: It says it shall be completed within five years from the effective date of this amendment. And I'm of the volition, position that if the applicant is generally showing in good faith their intent to do and within the five years moving along, and for unforeseen 20 reasons cannot complete it on the exact fifth year, I don't have any problem with having them continue on, continue on with their investment. GIFFIN: I think your comments are well taken. I just wanted to clarify, I think, what Commissioner Souza and I think what Commissioner Togashi may have been referring to, and that is that there would be no extension, correct? KUBOTA: Well, I don't know that they were talking GIFFIN: I'm asking him. KUBOTA: Okay. Okay. SOUZA: 1, it's a, I would be definitely for an extension if the building is coming up and the plans are there, definitely they cannot get through in five years, I would be for an extension. I would not be for an extension if just, again, nothing has been done. How do you clarify that, I don't know. But definitely if good faith has been shown, plans have been submitted, they're starting to work, hey GIFFIN: So then we would still need to modify some sort of, we need to change the verbiage so that that is included, our intents are included? GOLDSTEIN: May I make a BAKER: Any amendment? GOLDSTEIN: No, just a comment? If the Commission does not wish to allow any further extensions, then I think one other condition of the rezoning needs to be deleted. And that would be Condition K, which says an extension of time for the performance with, may be granted by the Planning Director upon the following circumstances. Now if you don't want to give that ability to the Planning Director, you need to delete that condition. And then the question, I think, that Mr. Togashi has raised is is this a substantive enough change that was not noticed, do we have to, if you want to do this, do you have to continue this hearing? And I leave it to Corporation Council. GIFFIN: Sir. GOLDSTEIN: If you want to do it. FUKE: Madam Chair, like, can I GIFFIN: Okay. Yes. 21 FUKE: I'm sorry. Maybe I can, if I can direct this question to the Planning Director. I'm just wondering whether, you know, if the consensus on the part of the Commission is to not allow any time extension relative to the construction, that perhaps the proposed Condition B, you know, the new language, you know, you could have like "provided, however, that the provisions of Condition K shall not apply," or something to that effect. In other words, that, you know, all, you can have your time extensions provision GOLDSTEIN: For other things. FUKE: But it would relate to other components of the time extension, for example, like submittal of annual report, so on and so forth; but it would not pertain to the construction timetable. But you do have a dilemma because I think that as maybe Commissioner Souza had indicated that say if you're into like, you know, you're just about ready to get the final occupancy and then the five year has run up and GIFFIN: Yeah. FUKE: You know, you have to go through the entire process again and, you know, whether you would want to do that, you know. And so . BAKER: Madam Chair? GIFFIN: Yes, Commissioner Baker. BAKER: What I was thinking in hearing what Commissioner Souza said is that maybe we could set up as a phase; and if once you pass a certain phase and then if it couldn't be completed, then the extensions could be granted. That would address Mr. Souza, Commissioner Souza's concern that the project was not just set idle and no construction was done at all. So if we could have a phase by the developer that a phase would be met in construction. And then if we ran into some kind of problems, at that time, extensions would be looked at and would have to come before the Commission for a hearing, it wouldn't be just a slam dunk GIFFIN: I think a while back you had some comments you wanted PRANKE: Yes, Madam Chair. GIFFIN: To make. PRANKS: I had a question of Alice. What is the date on the letter from Konishi and Black that's in that file? Can you tell us? KAWAHA: It's dated September 13, 1996. 22 PRANKS: Okay. So from September 13, 1996, until February 15, 2000, there was no documentation in there, is that correct? KAWAHA: That's, until February 15'h, that's correct. PRANKS: Mr. Fuke says to you that there was a measure, that the Planning Director would have a measure, some idea that there was a measure of compliance going on. There was no activity in the file for all of those years. Four years, no activity, no way to know that there was a measure of compliance, unless Mr. Konishi was doing something that was not in the file. Now, I don't think that Mrs. Goldstein is so silly as to be doing things with the County Clerk as the lawyer of this firm when, not in public view So we must come to the conclusion that there was no measure of compliance going on in that period of time. Now, as to deleting Section K, that does the backward thing of what you want to, what we're talking about here. We want a supermarket. We have plenty of restaurants in Pahoa in opposition to Hilo. We call ourselves the restaurant and video rental capital of Lower Puna, 13 restaurants there. We don't need another quicky mart, we don't need another Pizza Hut, we don't need any kind of a gas station or anything like that. What we need is a full scale supermarket so that people don't have to drive all the way actually to Hilo now because Sure Save with their problems oftentimes doesn't have many of the things that we want. People are driving too far to do their shopping, and that's what they want. Now, deleting Section K only gives them incentive to put something in there, even if it's not what the people want. I suggest again that you either, if you want to make that as an addendum or a motion to change that, that you hold your next meeting in Pahoa or hold, have a subcommittee hold a meeting in Pahoa to find out what the people there feel like. I promise you we'll have the people there. GIFFIN: Thank you. PRANKE: You will get the feeling of what it is, and it won't just be me talking. GIFFIN: Thank you very much. There is another member of the public who would like to come forward and testify. So, Mr. Pranke, will you please step back and PRANKS: Why can't Mr. Fuke step back? GIFFIN: They all will. I was just going to ask all of them to step back. Mr. Fuke, Mr. Kaneshiro, could you please step back? Could you please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? MOOERS: I do. GIFFIN: Will you please state your name and address. 23 MOOERS: My name is Greg Mooers. My address is P. O. Box 1101, Kamuela, Hawaii 96743. GIFFIN: Thank you. MOOERS: I have no particular interest in this case other than just some very basic planning issues that I think are very important and I think maybe have been clouded a bit; and I just would like to speak my piece since I've been sitting here and listening to this GIFFIN: Good. MOOERS: For the last several minutes. First of all as regard to the extension, I think the language was very accurately read. But my interpretation, I guess, is somewhat different than Mr. Pranke's; and that is that the Director shall initiate a rezoning to more appropriate use, and I think that is the really critical issue here. What is the appropriate use of this property? And apparently from the initial petitions that were signed and because this gentleman was willing to make a financial investment, it is believed that the appropriate use for this property is to be used for.commercial uses. I've represented a number of parties before this body and the County Council. There's absolutely no way that you can wait until you have a contract in hand to start a rezoning action and think that you're going to get through and meet a market demand. You know, there's a certain amount of risk taking that you identify property, you identify a community need, and you try to position that property through a rezoning to meet the needs of the community. The hard reality, as Mr. Fuke said, is this is a business decision. These gentlemen bought the property and took a risk by buying the property to produce a market. If it made financial sense, there would be a market there today. Mr. Pranke says that if they do not produce a market within a certain period of time, then perhaps they should give it to the community association or a non-profit group and that they can certainly find somebody to run a market. I would simply say this. If that is the case, then I would ask Mr. Pranke to find that person at this point, introduce them to the Kaneshiros, and have them proceed with the market because the Kaneshiros, I'm sure, would be happy to lease to somebody who would utilize the property in this manner. I think this comes back to a very simple situation. What is the appropriate use of this property? Should it be zoned commercial or should it be downzoned to another zoning? The actual time limits, I guess I'm probably a lone voice on this, I don't really believe there should be time limits on zoning because I think what the Council and the Commission should be making recommendation to the Council in is what is the appropriate use of the property? Not who owns it, not whether it's going to be a supermarket or a Saveon Drug Store, or a video mart. That is up to the free market to determine as to what would be profitable. So I 24 would simply emphasize that I think that the focus here should be is what is the appropriate use of this property? Thank you. GIFFIN: Thank you. Commissioners, any comments or questions of Mr. Mooers? KUBOTA: Thank you. SOUZA: I have one. Would you like to comment about after, like in the ordinance, it was past, that five years has lapsed, besides the property was done to what the ordinance said it should do. What's your comment about that? MOOERS: My comment is that the Planning Director shall initiate a zoning to the original zoning or the most appropriate zoning, and I think the Director has determined the most appropriate zoning is the present zoning, and that is commercial. I don't think that the intention of the ordinance was to penalize a landowner for an action but rather to say that if it doesn't act within a certain period of time, the Director has the option to look at it and say I can initiate a rezoning to the previous zoning condition or to an appropriate, I think it says the most appropriate or more appropriate. GIFFIN: More appropriate. MOOERS: And, you know, if there was a dire need, then I think the Director could say, okay, this is not appropriate anymore. But it seems to me that the Planning Director has determined that this zoning is still appropriate, and I think that's probably a very valid call. GIFFIN: Thank you. Any other questions of Mr. Mooers? Okay. Thank you. PRANKS: I appreciate Mr. Mooers' statements, and I tend to agree with him in the general situation. However, there's a couple of things that he has forgotten. This is the reason, these are the signatures, and here's what this petition which came before the And that's the problem. In five years, there will be new Commissioners and the memory won't be there. We, the residents and landowners in close proximity, etcetera, we support the request to Commercial rezoning to allow the establishment of the supermarket, the supermarket, the one they were promised. If built, the supermarket would be of great convenience to us and would not create any adverse effects to the surrounding area. All of these folks signed this and got this zoning changed because they were expecting, they were told they were going to get a supermarket. Now in respect to Mr. Mooers' statements, that's all well and good, except that the land was purchased in 1989 prior to it being rezoned for $250,000 or approximately thereof, therefore, by Kaneshiro and Sons. So they considered it valuable as agricultural land, not knowing that they could get it rezoned. They got it rezoned because they promised a supermarket, and that's the key issue here. From the talk that I'm hearing today, I would change my opinion 25 and say no, I wouldn't support this ordinance to go before the Planning Commission, Planning Committee at all because it looks like we're starting to get sideways movement here as to actually what's going to be built there. And these folks, the original reason this was rezoned, were told it was a supermarket. GIFFIN: Okay. PRANKE: Thank you. GIFFIN: Thank you, Mr. Pranke. Concluding comments by FUKE: Sure. GIFFIN: Mr. Fuke and/or Mr. Kaneshiro. FUKE: Madam Chair, like, again, you know, we, on behalf of the applicant, would still prefer the original language as suggested by the Planning Director. We also appreciate the comments made by Mr. Mooers. We tend to agree with his comments that the Director, I guess in her or the staff's position, had noted that it's still appropriate to have a commercial neighborhood zoning. If, on the other hand, the Commission is inclined to impose a limit, you know, on five years and not grant the, or not give the Planning Director the ability to provide any discretionary extension to it, I would like to suggest, without perhaps tinkering into Condition K, you know, which is a totally different item, that an amendment can be made along this line You know, after the first sentence, it would read, "Construction of any development on the subject property shall be completed within five years from the effective date of this amendment." And then you would add this phrase, it would be, "provided however, that should there be no substantial construction on the site, the provisions of Condition K shall not apply." So, in other words, the only discretion that the Director would have is that there would have to be some demonstration of construction on the site; and if there is construction on the site; then the Director would be in a position to provide an administrative extension. And I think that would partially accommodate, I think, the issue that the Chair and as well as Commissioner Souza had raised. GIFFIN: Would you give a copy of that language to Alice so that if, you know, that's what we decide to do, she has it? FUKE: Sure. GIFFIN: Any other comments? SOUZA: Madam Oh, wait. 26 GIFFIN: I'm sorry, Commissioner Mosher. MOSHER: I was ready to make a motion. GIFFIN: Okay. Commissioner Souza. SOUZA: I just want to say that personally I feel very comfortable with what Mr. Fuke had suggested. I think that's a good compromise. I think that answers the question that, you know, something will be done; and I just feel very comfortable with that statement. GIFFIN: Thank you. Any other comments before I call on Commissioner Mosher? POMMERENK: Is there time for me to say something on this matter? GIFFIN: You know, I said that these were concluding remarks. However, once we have a motion, there is a point there when we could have discussion. POMMERENK: Okay. GIFFIN: So any other comments? Commissioner Mosher. MOSHER: Okay. After this long discussion and understanding the hard financial situations of both Sure Save and the Kaneshiros, and realizing that the appropriate zoning for this particular parcel is CN-20, I want to make a motion that we recommend a favorable recommen that we send a favorable recommendation to the County Council to amend Conditions B and C of the Change of Zone Ordinance No. 91-116, period. BAKER: With the amended conditions. TOGASHI: Second. GIFFIN: Just a minute. MOSHER: With the, I'm sorry, with the recommendation to amend the words on No. B. GIFFIN: And then its reference to K? MOSHER: No, I'm just going to leave it at that, and it can be brought up for discussion. GIFFIN: All right. Do I hear a second 27 KUBOTA: Second. FUJIKAWA: Second. GIFFIN: To Commissioner Mosher's motion? KUBOTA: Second. GIFFIN: Okay. SOUZA: What GIFFIN: And you know what you're seconding? KUBOTA: Yes, I know what I'm seconding. GIFFIN: It has been moved and seconded that we send a favorable recommendation for the request to amend Conditions B and C of Change of Zone Ordinance No. 91-116 to the County Council, with the conditions that were included MOSHER: No, I did not include the sentence that Sidney put in. GIFFIN: Yes. You omitted that. MOSHER: I omitted that. I'm just going according to the Director's GIFFIN: Director's recommendation. MOSHER: Recommendation. GIFFIN: So with the conditions of, with the MOSHER: Renumbering or relettering GIFFIN: Yes. MOSHER: The conditions. GIFFIN: Yes. As recommended by the Director? MOSHER: As recommended by our Planning Director. GIFFIN: Okay. So it has been moved by Commissioner Mosher, seconded by Commissioner Fujikawa. 28 BAKER: No. GIFFIN: Any discussion? BAKER: Kubota. SOUZA: Madam Chairman? I'd like to move to amend the original motion to include, and I don't have the language, that would, who has it, Alice? GIFFIN: Alice does. KAWAHA: Yes. SOUZA: Read that, please. KAWAHA: Okay, it would state after, well, Condition B, "Construction of any development on the subject property shall be completed within five (5) years from the effective date of this amendment provided, however, that should there be no substantial construction on the site, the provisions of Condition K shall not apply." MOSHER: My concern about that is what's the definition of substantial? Who defines substantial? That's why I didn't include that. TOGASHI: Let me, may I just say GIFFIN: Wait. I think that if we're going, we have a motion on the floor and TOGASHI: Right. There was, and there was some discussion before the second. GIFFIN: Right. TOGASHI: Right. GIFFIN: Okay. So we're still back to the original motion that Commissioner Mosher TOGASHI: Okay. GIFFIN: Had moved and was seconded. I don't know if Commissioner TOGASHI: I would like GIFFIN: Souza. 29 TOGASHI: To second the amendment. GIFFIN: Okay. TOGASHI: Before the GIFFIN: Were you amending? SOUZA: Yeah, I move to amend as GIFFIN: Okay. SOUZA: Alice TOGASHI: And I would second that. GIFFIN: And you're seconding. Okay. TOGASHI: And the discussion, I think, was very relevant to GIFFIN: Right. Okay. TOGASHI: And what I wanted to say is that, for example, I know with regard to the Planning Commission's Rule 9, there is among the criterion for recommending approval of a special permit, there is, or a SMA permit, there is a, again, we use, we have that criterion which is substantial. I mean, it's used throughout the, and there is really no GIFFIN: Amendment. TOGASHI: Definition. A lot of it is very judgmental. GIFFIN: Right. TOGASHI: So in answer to, I guess, Millie's, and I had the same question, too, how do you define substantial. But we do have that language in other rules that we have to abide by. GIFFIN: Any other comments? There has been a request by another member of the public to come and testify or give testimony, and I did promise that he would have a chance. POMMERENK: Thank you very much. 30 GIFFIN: You're welcome. Will you please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? POMMERENK: I do. GIFFIN: Will you please state your name and your residence address. POMMERENK: My name is Gregory Carl Pommerenk, and I am a landowner and ex- resident of Puna, in the area where this is involved. GIFFIN: What is your resident address now? POMMERENK: It's P.O. Box 859, Kilauea, Hawaii. GIFFIN: Oh, Kauai, okay. POMMERENK: Just as a bystander here listening to this, I thought maybe I could do a little third party thing here to help out. And what I see, it seems like that Mr. Kaneshiro now has positioned himself to have a monopoly on the Commercial zoning in Pahoa for a large store. And I think the Commissioners should be aware of this, that if by chance some other market like Sure Save or Safeway or whatever came in, excuse me, and said that they wanted to build something in this area and try to rezone another piece of land, most likely the Planning Director would recommend that it not be granted because of the area and the amount of people. And, most likely, this is a very strong leverage point that Mr. Kaneshiro has. And I think that you should probably put some stipulations in there. Because I've seen in the past how people have come in and put in gravel or dumped a load of something and they call that construction; and it just keeps on going, just to keep this monopoly, this leverage that they have to control the land in that area. I think that's a real important thing that you should examine before you, you know, continue on with this. I would suggest looking at it, that the permit be dropped and that it would open it up to a more free market for someone else to be able to come in to apply for commercial zoning to build a store. Whereas, right now, it is in Mr. Kaneshiro's hands; he's in control of that land. Nobody can do anything unless he approves it. And you've already given him the only one special use permit for this whole area. So nobody else can build a large shopping center there without getting a rezoning; and it would be almost impossible to get more rezoning when he controls the main parcel that's been rezoned already. GIFFIN: Thank you very much. Alice, would it be possible for you to please repeat the motion as amended. KAWAHA: Okay. The motion by Commissioner Souza was that the Commissioners would send a favorable recommendation with the Planning Director's recommendation, with amendment made by the applicant which reads, "Construction of any development on the 31 subject property shall be completed within five (5) years from the effective date of this amendment provided however, that should there be no substantial construction on the site, the provisions of Condition K shall not apply and it continues on." And that's Condition B. GIFFIN: All right. KAWAHA: Condition C is proposed to be deleted. GIFFIN: Right. Commissioners, are you clear on what the motion is before us? Are there any questions or is there any further discussion on your part? If not I'm sorry, Alice. KAWAHA: Yeah, actually, there are two motions. GIFFIN: Yes, I thought we KAWAHA: Yeah. GIFFIN: Would vote on the amendment first. KAWAHA: Okay. GIFFIN: If there are no questions or any comments, staff. KAWAHA: Commissioner Souza? SOUZA: Aye. KAWAHA: Commissioner Togashi? TOGASHI: Aye. KAWAHA: Commissioner Fujikawa? FUJIKAWA: Aye. KAWAHA: Commissioner Kubota? KUBOTA: Aye. KAWAHA: Commissioner Baker? BAKER: Aye. 32 KAWAHA: Commissioner Mosher? MOSHER: Aye. KAWAHA: Commissioner Smith? SMITH: Aye. KAWAHA: Chairman Giffin? GIFFIN: Aye. KAWAHA: Chairman, there are, I'm sorry, Commissioner Mina? MINA: Aye. KAWAHA: Chairman, there are nine ayes; the motion has been carried with the amendment. GIFFIN: Thank you. Do 1 hear any requests for a recess? SOUZA: Main motion. MOSHER: Yes, recess. FUKE: You have to vote, you still have to vote for the main order. PRANKE: Point of order, Madam Chair. FUKE: You still have to vote PRANKE: The other FUKE: For the main motion. PRANKE: Did you vote GIFFIN: Excuse me, just a minute. PRANKE: You were KAWAHA: You need to PRANKS: Voting on the amendment, I assume. 33 KAWAHA: You need to do KUBOTA: We were voting on the amendment. We need to PRANKE: And you haven't voted on the main issue yet. GIFFIN: Okay. Thank you. MOSHER: May I withdraw my main GIFFIN: Motion. MOSHER: Motion? SOUZA: You cannot do that. MOSHER: I don't know, I'm asking? It's a question. May I withdraw my main motion? GIFFIN: If the second one, if the second GOLDSTEIN: If the second GIFFIN: Well, let's ask Legal Counsel. JEREMIAH: Why don't you call for the vote on the regular motion, since you have nine-zero anyway. GIFFIN: Okay. JEREMIAH: On her motion. GIFFIN: Even though she would like to withdraw? JEREMIAH: But he's amending her motion which is on the floor. GIFFIN: Okay. JEREMIAH: Okay. MOSHER: Oh, so you have to vote on mine. JEREMIAH: Yeah. 34 MOSHER: Okay. JEREMIAH: Yeah. GIFFIN: Any comments, questions? Staff. KAWAHA: Commissioner Mosher? MOSHER: Do I have to vote yes? GIFFIN: No. MOSHER: Or no? Because the second SOUZA: Yes. MOSHER: Amended mine, and I want GIFFIN: Yeah, that's why I didn't MOSHER: I voted for the second. SOUZA: Yes. MOSHER: Vote no. KAWAHA: So the motion that's before you right now is the main motion, which is KUBOTA: As amended. TOGASHI: As amended, right. As amended. Right, as amended. Right. GIFFIN: No, we voted on as amended already. KUBOTA: No, we didn't. GIFFIN: This is the one KAWAHA: No, you-. Yeah. KUBOTA: No, we didn't. Excuse me. My understanding was we voted on Mr. Souza's amendment to the main motion. 35 MOSHER: Right. KAWAHA: Okay. KUBOTA: On Condition B. MOSHER: Right. KUBOTA: That passed. Now we're back to the main motion, and we need to MOSHER: Vote yes. KUBOTA: Vote KAWAHA: Vote JEREMIAH: Yes. KUBOTA: The main KAWAHA: Yeah. KUBOTA: Motion with the amendments KAWAHA: With the amendments KUBOTA: That were made to it. MOSHER: Okay. KAWAHA: Yeah. MOSHER: Yes. KUBOTA: Am I clear or am I confused? TOGASHL That's right. KUBOTA: Okay. SMITH: You got it. MOSHER: Yes. 36 KAWAHA: Commissioner Kubota? KUBOTA: Aye. KAWAHA: Commissioner Baker? BAKER: Aye. KAWAHA: Commissioner Fujikawa? FUJIKAWA: Aye. KAWAHA: Commissioner Smith? SMITH: Aye. KAWAHA: Commissioner Souza? SOUZA: Aye. KAWAHA: Commissioner Togashi? TOGASHI: Aye. KAWAHA: Commissioner Mina? MINA: Aye. KAWAHA: Chairman Giffin? GIFFIN: Aye. KAWAHA: Chairman, there are nine ayes; motion has been carried, and that has been with the amendment. MOSHER: And I call for a five-minute recess. KUBOTA: Thank you. PRANKE: Point of order, Madam Chair. You have allowed Mr. Fuke to amend a bill, or an action before you, which means that this was not on the agenda for public testimony. So you must hold another meeting concerning this so that the public has the opportunity to talk about his amendment, without that being on the agenda, so this must go on the next meeting at least. I would urge you to hold the meeting out in Pahoa. 37 GIFFIN: Thank you, Mr. Pranke. SOUZA: Madam Chairman, I made the amendment, not Mr. Fuke. FUKE: I did not make the amendment. GIFFIN: Yeah, that's MOSHER: Correct. SOUZA: I made the amendment. BAKER: Out of order. PRANKS: Mr. Fuke wrote it, I'm sorry. GIFFIN: I think that there is a request BAKER: Call for order. GIFFIN: For a recess. MOSHER: Thank you. The discussion ended at 10:57 a.m. Respectfully submitted, Sharon M. Nomura, Secretary Planning Commission 38