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COM 1230.000 2006-2008
~tYOF~ Harry Kim ~ • ? ~ ~ ' Dixie Kaetsu Mt~yor Managing Director r~• • . ~-o°;;~ Barbara Kossow ~rE•oF•N~?~+ Deputy Managing Director Count of Haw i~' y a~ 25 Aupuni Street, Room 215 • Hilo, Hawaii 96720-4252 • (808) 961 X211 • Fax (808) 961.6553 KONA: 75-5706 Kuakini Highway, Suite I03 • Kailua-Kona, Hawaii 96740 (808) 329 5226 Fax (808) 326 5663 r~ ~ May 5, 2008 a.. `~/Y i'n' r~M ~ e ~M' n...... Honorable Pete Hoffmann, Chairman ry ~ ~ ! ~ G and Members of the County Council . ~ . ~ County of Hawaii 333 Kilauea Avenue Hilo, HI 96720 Dear Chairman Hoffmann and Members: Change of Zone (REZ 866) Request: Time Extension to Condition C of Ord. 97-102 Applicant: Kohala LLC Tax Map Key: 5-9-1:8 As required by Chapter 4, S ec. 6-4.3 (C}, Hawai ~ i County Charter, transmitted herewith for the County Council's consideration and action are the Planning Commission`s letter and enclosures regarding the above-referenced request. Sincerely, arry Kim Mayor Enclosures cc: Planning Department Comm, Noy Ref. To: Ref. gate, ~lA~ $ w ~ v ~t~ OF p ~W I . ~ ~ n ~,II~/~. • ~ ~ • ~ ~ ~ • ~ • ~ ~ • ~~rE of N~~~ Count of Hawai `i Y PLANNING COMMISSION Aupuni Center • 101 Pauahi Street, Suite 3 • Hilo, Hawaii 96720 Phone (808) 961-8288 ~ Fax (808) 961-8742 May 5, 2008 Pete Hoffmann, Chairman and Members of the County Council County of Hawai `i 333 Kilauea Avenue, 2nd Floor Hilo, HI 96720 Dear Chairman Hoffmann and Council Members: Change of Zone (REZ 866) Request: Time Extension to Condition C of Ord. 97-102 Applicant: Kohala LLC Tax Map Key: 5-9-1:8 The Planning Commission at its duly held public hearing on Apri118, 2008, considered the applicant's request for an amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-Sa) to a Single Family Residential -15,000 square foot (RS-15) district. The property is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1St, North Kohala, Hawaii. A motion was made to send a favorable recommendation to the County Council, with an amendment to reduce the maximum number of lots from 50 to 25. There were three votes in favor of the motion and four against. Because five votes are needed for the Planning Commission to take action, the three to four vote constitutes a "no action" by the Planning Commission. The "no action" itself constitutes an unfavorable recommendation. The applicant had previously agreed to extend the time frame for processing this application at the Planning Commission, but indicated at this meeting that it would not want a further time extension. Therefore, we are forwarding this letter explaining the unfavorable recommendation along with the Planning Department's Background and Recommendation Reports and the hearing transcripts for this matter. Hawaii County is an Equal Opportunity Provider and Employer w ~ Pete Hoffmann, Chairman and Members of the County Council Page 2 For your information, we have also enclosed a letter dated March 18, 2008, from the applicant's representative outlining suggested changes to Change of Zone Ordinance No. 97-102. Please note that the Planning Director previously transmitted his request to repeal Change of Zone Ordinance No. 97-102 and to rezone the subject parcel from Single Family Residential -15,000 square feet (RS-15) to Residential and Agricultural - 5 acres (RA-Sa). The County Council recently decided that this matter be remanded back to the Planning Commission and suggested that the request be for a Residential and Agricultural -15 acres (RA-15a) zoned district instead. Should you have any questions, please feel free to contact Norman Hayashi of the Planning Department at 961-8288, x205. Sincerely, Rodney Wa nabe, Chairman Planning Commission Enclosures cc: Steven S. C. Lim, Esq. Planning Department-Kona Lincoln Ashida, Esq. Ivan Torigoe, Esq. Department of Public Works Department of Water Supply 4 1 BKohaIaLLC-AmendREZ866-SMA379 jwd 07-10-07 CQUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND REPORT KOHALA LLC AMENDMENT TO SPECIAL MANAGEMENT AREA USE PERMIT N0.379 Al1~IENDMEI~T TO CI~AI~GE OF ZONE ORDINANCE N0.97-102 Z 86~, KOHA~I1t~ IJLC has submitted-amendment requests for Condition C .(time extension to secure final Subdivision Approval} of Change of Zone Ordinance No. 97-142, which rezoned 37.88 acres of land from an Agric~l~ral 5-acre ~A-Sad to ~ Single-Family Residential (RS-~ 5} zoned district, and Condition No. 4 (time extension to secure Final Subdivision Approval} of Special l~ianagement Area (SMA} Ise Permit No. 379, which was approved to allow the development of a So-lot single family residential. subdivision and related improvements. The prap~~rty is located on the: makai side of Akoni Pule Highway directly across the entrance to Kohala Ranch at Kahua 1st, North Kohala, Hawaii, TMK: 5 -9-1: 8. PRQPOSED DEVELOPMENT I . Request: the applicant, Kohala LLC,. is requesting a 5-year time extension. from July 14 2a07 until July 14, 2012 to comply with Condition C (secure Sinai Subdivision App~raval} ©f Charge of Zone (Jrdinance No. 97-1 Q2 and Condition Na. 4 (secure Final S~t~bdivi~ior~ Approval} of Sci~l Management Area Use Permit No. 379. Change of Zane Ordinance No. 97-142 was approved. by the Hawaii County Council with an effective date cif July 14,1997, which rezan~d.37.88 acres from A-Sa to RS-IS. Condition C limited the amount of residential Tots to fifty (~0} and required the applicant to secure Final Subdivision Approval within five (5} years from the effective date of the ordinance. Additionally, Special Management Area Use Permit No. 379 was approved by the Planning. Commissionon Augusta 8,1997 to allow the development of a 50-lot single family residential. subdivision and related improvements. Condition No. 4 required that. the applicant secure Final Subdivision Approval within five (5}years from the effective date of the permit. 2. Reasons for Request: In the course of preparing a time extension request and annual progress report for ordinance 97-142 and SMA 379, the applicant was informed that the -1- ATTACH: Corm. 123~~ Bill 307 . Planning Director would be initiating the rezoning of the property from RS-1 S to RA-Sa and would be initiating the revocation of SMA 379. The applicant is requesting that the Planning Director's initiated actions to rezoning the property and revoking SMA 379 be withdrawn and that the applicant be granted a 5-year time extension to secure Final Subdivision Approval, which will allow the applicant to proceed with the development. The applicant is committed to proceed with the development of the project and is requesting a 5-year time extension to secure Final Subdivision Approval and. satisfy Condition C of Change of Zone Ordinance No. 97-102 and condition No. 4 of SMA Use Permit No. 379. According to the applicant, in its efforts to comply with conditions of approval, the applicant has completed an Archaeological Inventory Survey, and obtained the Department of Land and Natural Resources-State Historic Preservation Division's approval for the Site Preservation Plan and Burial Treatment Plan. They are currently assessing its right and obligations under various Development and Water Agreements involving several. third-party entities. relative to waters©urces, supply, easements, and transmission lines for the project. 3. Landowner: The applicant, I~ohala LLC, is the landowner and the successor-in-interest to the original applicant, Gentry-Pacific, Ltd. 4. Supportive Information: The applicant has submitted the-foliawing in support of the request: (Planning Department Exhibit 1-Amendment Request and Annual Progress Report Dated June 5, 2007} BACKGROUND I~tFQR:MATION 5. September 15,.1993: SMA Minor Permit No. 93-19 was granted by the Planning Director to Tom GentrylGentry Hawaii, Ltd., to allow the construction of a single family dwelling and ohana dwelling. The permit established an easement for public pedestrian access within the 44-foot shoreline setbacl~. (Planning. Department Exhibit 2 -Special Management Area Minor Permit X10.93-19 Dated September 1~,1993~ 6. July 14,1997: Effective date far Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-Sa) to aSingle-Family Residential (~5-15}zoned district. (Planning Department Exhibit 3 -Change of Zone Ordinance No. 97-102} -2- 7. ,August 8,1997: Effective date of Special Management Area Use Permit No. 379, which was approved to allow the development of a 50-lot single family residential subdivision and related improvements. Planning Department Exhibit 4 -Special Management Area Use Permit N0.379 with Additional Approval Letters Dated August 26,1997 and September 8,1997. 8. July 9,1998: An annum. progress report with enclosures was submitted in compliance with Condition T of Change of Zone ordinance No. 97-1 OZ updating the Planning Department of the status of the development. (Planning Department Exhibit 5 - Annual Progress Report with Enclosures dated July 9,1998) 9. July 5, 2001: An annual progress report with enclosures was submitted incompliance with Condition T of Change of Zone Ordinance No. 97-102 updating the Planning Department of the status of the development. (Planning Department Exhibit 6 Annual Progress Report with Enclosures dated July 5, 2001) la. Gctober 22, 2001: Response letter to July 5, 2001 annual. progress report. The Planning Department noted concerns regarding the preservation plan approval letter .from DLNR- SD because there was a significant change in the development plans from the original intent to create a subdivision of 5f}single-family dwellings to a development of one single-family residence. (Planning .Department Exhibit 7 -Response Letter from Planning Department dated October 22, 2001} 11. May 31, 200?: Date of letter sent by the Planning Director informing the applicant that based on inaction by the previous and current landowner for ordinance 97-102 and SMA 3?9 for almost a 1 O-year period, including no requests for administrative time extensions., the Planning Director will be initiating the rezoning of the property from a RS- I S to a Residential and Agricultural 5-Acre (RA-Sa) district and initiating the revocation of SMA Use Permit loo. 379. (Planning Department Exhibit 8 -Letter Dated May 31, 2007) STATE AND COUNTY PLANS 12. General Plan Land Use Pattern Allocation Guide (LUPAG) Map: Low Density Urban, Extensive Agricultural and Open along the shoreline. I3. SLUE: Urban. 14. County Zoning: RS-IS -3- .ti 1 S. forth Kohala Community Development Plan: Adopted by the Hawaii County Council as Resolution No. 219 86 on November 3,1986, the North Kohala Community Development Plan encourages the retention of view planes from major highways, through comprehensive site design review of developments which may affect the vistas along Akoni Pule Highway from Kawaihae to Hawi. 16. Coastal Zone Management, HRS Chapter 205A: The entire State of Hawaii lies within the Coastal Zane Management area. The intent of the Coastal Zone Management Program is to guide and regulate public and private uses in the coastal zone management area with respect to recreational resources, historic resources, public access to the shoreline, scenic and open space resources, coastal ecosystems, marine resources, economic uses, coastal hazards, managing .development, public participation, and beach protection 17. SMA: The property is situated within the Special Management. Area. Special Management Area-Use Permit No. 379 was approved to allow the development of a Sa- lot single family residential subdivision and related improvements an the subject property. 18. S.C.R NU. 179: Senate Concurrent Resolution No.179, H.D. 1, adopted. in 1988, urges the retention of view and open space makai of Kawaihae-Mahukona-Hawi Road from Kawaihae to Upolu Point, Hawaii. 19. S.CR N4.146: senate Concurrent Resolution Na.146, S.D.1, adopted in 2001, urges the retention and preservation of open space and view planes, historic sites, and traditional access along the coastline of the North Kohala District, Hawaii DESCRIPTION OF SUBJECT PROPERTY AND SURROUNDING AREA 20. Pr©perty: The property is 37.88 acres in size and is roughly rectangular in shape. It is located. along a rocky coast of North Kohala approximately 3 miles northwest: of Kawaihae directly across of the Kohala Ranch entrance and fronting waiakailio Bay. 21. Surrounding Zoning/Land Uses: The property borders the ocean to the southwest. Surrounding properties are zoned Agricultural S-acre (A-Sa). The property to the northwest is awned by the State of Hawaii and is currently vacant. Kohala Ranch is located directly across the Akoni Pule Highway with lots along the highway zoned A-Sa. -4- h -7 a ~ g , Lots further mauka within the subdivision are zoned A-3a. The properties to the southeast, makai of the highway, are zoned A-Sa. Special Management Area Use Permit Na. 2006-000010 was approved to allow a 5-lot subdivision and related uses, and to make landscaping and other infrastructure improvements to two cul-de-sacs associated with the prior subdivision on the properties bordering to the southeast. Kohala waterfront Joint Venture is located further southeast of the subj ect property and is zoned Multiple Family-4,000 square foot (~~1VI-4}. Kohala waterfront Joint Venture was granted an amendment to SMA Use Permit No. 212 to reduce the project from a 416-unit multiple family residential development to a 50-lot single family residential subdivision and related improvements. The property to the northwest is owned by the State of Hawaii and is currently vacant. 22. U.S.D.A. Soil Type: Kawahae very rocky, very fine sandy loam, 6 to 12 percent slopes (KOC}. 23. ALISH: Unclassified. 24. Land Study Bureau's Detailed Land ~lassi~eation System: "E" or "Very Poor" for agricultural. productivity by the Land Study Bureau. 25. hydrology: The hydrological features and characteristics ofthe site are typical of the ~JVest Hawaii and North Kohala Region. The mean annual. rainfall is approximately 10 inches per year. Twenty percent of the annual rainfall occurs during them©nth of January. The evaporation rate for the area is one of the highest in the State. Although there are no perennial streams or surface water features on the site, seven major drainage ways carry a large volume of water from the mauka watershed to the ocean during rare prolonged rainy periods. The shoreline is rocky and exposed to the surf and wave action from the open ocean. The project area is within the Kohala Hydrographic area (Hawaii Resources Regional Study Team,. 1979}. A study conducted by Charles L. Murdoch and Richard E. Green dated February 29,1992 assesses the potential impact of fertilizes and pesticides on the proposed project. The study concluded that there is no reason to expect any significant adverse impact of chemicals. on the quality of the shoreline water. The study also added that "Given the likely brackish condition of the groundwater at the project location, there will be no significant negative impact on the groundwater aquifer -5- v even if small quantities of chemicals are leached to the water table. The ground water discharges into the ocean and will be subsequently mixed with seawater, as is the case with runoff." 26. Fauna: An avifaunal and mammal survey was conducted by Philip L. Bruner on January 4 and 5,1994. Fauna consists of introduced species of birds and mammal pests. No endemic birds were recorded on the property, although short-eared owl or Pueo and the endangered Hawaiian Hawk or 'Io may on rare occasions be seen in this area. Three Pacific holden Plover were recorded during the survey. Although nave were observed during the survey, the Ruddy Turnstone and the wandering Tattler may also occur along the shoreline. Feral mammal observed on the project site include Indian mongoose. fat tracks were also found. 27. Flora: A botanical survey was conducted by Char and Associates on January 3,1994 and March 3,1994. The excessively drained, extremely stony soils support thick. mats of buffel grass and scattered trees of kiawe. A total of only 29 plant species were found during the field studies. Of the plant species, 24 are introduced ar alien species and 5 are native. Of the natives, 4 are indigenous and 1 is endemic. The native plants are: pill grass,. pau o Hi'iaka, 'ilima, alena, and 'uhaloa. None of the. plants which were inventoried are listed as threatened and endangered species. 28. Archaeological Resources: An archaeological inventory survey was conducted July 1- 30,1991 and May 18-June 1,1991 on the subject property by Paul H. Rosendahl Inc. The original survey report was revised pursuant to comments: received from the State Department of Land and Natural Resources, State Historic Preservation Division (DLNR- SHPD} dated June 16,1993, January 11,1994 and January 20,1995. The survey identified 68 sites consisting of 177 discrete features within the two parcels. It appears that there are at least 40 sites on the subject parcel. Fifty two (52} of the 68 sites identified were assessed as significant solely for information content. Of the 52 sites, 8 sites were deemed "no further work required" while the other 44 required further data collection. Five (5} of the remaining 16 sites were assessed as "significant for information content and as provisionally significant for cultural value, pending further data collection." Further data collection and provisional preservation "as is" were _6_ i recommended. Four sites were assessed as si ificant for information c ~ ontent and as excellent examples of site types and for cultural value. These sites were recommended for further data collection followed b reservation within rote re ' y p fl tlve development. The remaining site was assessed as significant for information and content and cultural value (Site 15261, trail). Normally trails require preservation, .however, the rote rit of site g Y 15261 is poor, as the trail is discontinuous and heavil eroded. No forth y er work was recommended for the trail. Four sites were identified as containin human burials site g ( 2491, 4004, 4013,16130}. Five sites (2493,16126,16127 16136 16162 re ui q red fii~rther data collection. In a letter dated June 8,1998 from Don Hibbard of DL - NR SHPD, he states that they believe that the arehaeolo 'cal invento serve of the ro ~ ry y ughly 103-acre project area (TMI~s: 5-9-1:7 ~8}was adequate, findin a total of 68 sites. Later g he states that to ensure that. the mitigation commitments are successfuli :carried out the y next step in the historic preservation review process for the sites inthis- ro'ect area will pJ be to develop a Data Recovery Plan, a Preservation Plan and a Burial Treatm - ent Plan essentially scopes of work for mitigation. Aceordin to the a licant the haver ' g pp y eceived DLNR-SHPD approval far the.Site Preservation Plan and the Burial Treatment Plan According to a letter dated. November 29, 2000 from Don Hibbard of DLNR-SHPD to Dr: Paul Rosendahl that the approval was based on a chan e in develo went Tans fr g p p om a subdivision to asingle-family residence and the desire of the new owner for riv p acy. The approval was also based. on the residence being constructed. on the western ortion of the. p parcel and that the preserve sites, including the four burial sites, are located in the eastern portion of the property, which would remain undevelo ed. p 29. FIRM: Portions of the property along the coastline are located within Flood Zone "VE" which is the Special Flood Hazard Area inundated by the 100-year flood with coastal flood with velocity hazard where base flood elevations are determined nine feet .Other ( ) portions of the property along the highway are within Zone outside of the 500- ear y flood plain. The project site is located within the Tsunami Evacuation Zone. 3Q. v~sua~ Impacts/Open Space: The site is located makai of the Akoni-Pule Hi wa . ~ Y with the development of the proposed 50-lot subdivision, there would be some measure of diminution of the open space and alteration of the existing coastal view lane. To p _7_ 4 ~ Y mitigate these concerns the developer had proposed desi idelines to ensure th ~ ~ at the project, when fully developed will only minimally affect coastal view lanes and p promised covenants would be developed to restrict structures to certain sizes buildin g pads, envelopes, colors, materials. etc. to minimize maukalmakai view .lane im acts p p from the highway, as well as to minimize excessive alteration of the area's n atural terrain. These design guidelines and covenants were never developed. Condition Nos. S and 6 of SMA 379 addressed visual impacts by requiring all aboveground structures to be setback a minimum of 50 feet from the front property line along Akoni Pule Hi wa and to have ~ Y mauka-makai view corridors from Akoni Pule Hi wa . ~ Y 31. Public Access: Condition Nas. 7 and 8 of SMA 379 re uire the a q ppllcant to develop a comprehensive public access plan for the sub~ect ro ert .Public access w' J p p y lIl Include a mauka-makai road access of sufficient width to accommodate vehicle access 24 hours a day for drop. off and pickup with a minimum of 4 on-site ublic arkin p p g stalls and a 10 foot wide lateral public access walkway along the shoreline.. PUBLIC FACILITIES-AND SERVICES 32. Access: Access to the site is provided b Akoni Pule Hi wa a sta Y gh y, to owned highway. with pavement width varying between 30 and 40 feet but with a road ri t-of-wa gh y width. of 80 feet. 33. water: At the time of the applications, Kahua Ranch Ltd. and F onoholo Ranch Ltd. ("K-P"}had an agreement with Kohala Ranch water Cam an f p y ~ ormerly Kohala Joint Venture). Under the terms of the agreement,. K-P has an allocation of a maximum of 190,000 gallons per day. 4f thin amount, 76,000 allons er da was assi - g p y fined from K P to the applicant. Based on current County Department of water Su 1 standard each to pp Y ~ t would require 600 gallons per day. The ~0-Iot project would thus re uire 30 000 allons q ~ g per day. 34. wastewater: wastewater will be accommodated by individual se tic tanks. p 35. Utilities: Electrical and telephone service will be made available to the ro ert . p p Y 36. Protective Services: Police protection is provided from its North Kohala station in Kapaau. Fire protection is provided from its North lSouth Kohala station located near the Mauna Lani Resort and Puako junction. Response time is ap roximatel 10 minutes. p y -g- y a 7 The other stations are located in Waikoloa, North Kohala and Waimea. Emergency medical and paramedical services are also provided by the Hawaii County Fire Department. AGENCIES' COMMENTS 37. Department of water .Supply: (Planning Department Exhibit 9 -June 27, 2007 and February 6,1997 Memo) 38. Department of Environmental Management: (Planning Department Exhibit 10 - June 19, 2007 Memo) 39. Civil Defense Agency: (Planning Department Exhibit 11-June 28, 2007 Memo) 40. Department of Land and Natural Resources-Land Division: (Planning Department Exhibit 12 -June 20, 2007 Letter) 41. Department of Health: (Planning Department Exhibit 13 -June 22, 2007 Memo} AGENCIES - N4 RESPQNSE 42. Department of Public works, Police Department, Fire Department, Department of Land and Natural Resources- and State Historic Preservation Division, and Department of Transportation. PUBLIC CaN[MENTS 43. As of this writing, the Planning Department has not. received any written objections or comments from the general public or adjacent landowners on the subject application. -9- I A LIMITED LIABILITY LAW PARTNERSHIP 121 WAIANUENUE AVENUE ~ ~ P.O. Box 686 m HILO, HAWAII 96721-0686 'I~LEPxoNE 808.935.6644 FAX 808.935.7975 WWW.CARLSMTTH.COM sLIM@cAxLSMITx.COM June 5, 2007 Christopher Yuen Planning Department I OI Pauahi Street, Suite 3 Hilo, Hawaii 96720 Re: Ordinance No. 97-02 /Special Management Area Use Permit No. 379 Original Applicant: Gentry-Pacific, Ltd. Successor Applicant: Kohala LLC, a Washington limited liability company Request: A ' 's~ative Time Extensions 3 5-9-001:008 Dear Mr. Yuen: This firm represents Kohala LLC, a Washington limited liability company, successor-in-interest to original applicant Gentry-Pacific, Ltd. under Ordinance No. 97-102 ("Ord. 97-02 and SMA Use Permit No. 3 79 ("SMA 3 79 In the course of preparing our time extension request and annual report for Ord. 97-02 and SMA 379, we made initial contact with your staff: VVe were informed that you would be initiating the: (1} rezoning of the Property from the RS-15 to RA-Sa district, and (2} revocation of S~VIA 379. We received a copy of your Letter dated May 31, 2007 to Kohal LLC on June 5 2007 via facsimile transmission. The Applicant is committed to proceed with the development of the Project and is Y._ . currently assessing its rights and obligations under the various development and water agreements involving several third-party entities relative to water source, easements and transmission lines for the Project. On behalf of Kohala, LLC, we res ctfull re nest pe y q that the Planning D?irector's inifiiated actions to rezoning the Property and to revoke SMA 379 be withdrawn, and that your Department allow the Applicant to process the time extension re uest and roce t q p ed with he development of the Project as entitled. Ord. 97-02 effective 07/14/97 changed the district classification for the Pro e fram . p~ Agricultural (A-5a} to Single Family Residential (RS-15}for approximately 37.88 acres. ~~6'~ • HE3NOLULU KAPOLEI HILO KONA MAUI GUAM SAIPAN PL P~ant~`i~ '~e~pt. ~xf~ibit i i 1 Christopher J. Yuen .rune 201' Page 2 Condition C provides that: 0 "The proposed development within the subj ect property shall consist of a maximum of fifty residential lots (not including roadways or other such common area lots}. Final Subdivision Approval of the proposed residential subdivision within the subject property shall be secured from the Planning Department within five (5}years from the effective date of this ordinance.." Condition U provides that: "An initial extension of time for the performance of conditions within the ordinance may be granted by the Planning Director upon the following circumstances: 1. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, its successors or assigns, and that are not the result of their fault or negligence. 2. Granting of the time extension would not be contrary to the . General Plan or Zoning Code. 3. Granting of the time extension would not be contrary to the original reasons for the granting of the change of zone. 4. The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended up to one additional year}." SMA 3'l9 was approved by the Planning Commission on August 20,1997, to allow for the development of a 50-lot single family residential subdivision and related improvements. Pursuant to Condition 2 of SMA 379, the effective date of the Pernit is the effective date of Ord. 97-02 (or 07/14/97). Condition 4 provides that: "Final Subdivision Approval of the proposed residential subdivision shall be secured from the Planning Director within five (5} years from the effective date of this permit." ^Y~ Christopher J. Yuen V .tune, ~~~7 Page Condition 13 provides that: "An initial extension of time far the performance of conditions _ within the permit may be granted by the Planning Director upon the following circumstances: (A} The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, its successors or assigns, and that are not the result of their fault or negligence. (B) Granting of the time extension would not be contrary to the General Plan or Zoning Code. (C) Granting of the time extension would not be contrary to the ong~nal reasons for the granting of the permit. (D) The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended up to one additional year}." In its efforts to comply with the conditions of approval under Ord. 97-02 and SMA 379 Kohala LLC has completed an Archaeological Inventory Survey, and obtained SHPD royal ~'p for the Site Preservation Plan and Burial Treatment Plan, and is currently assessin its ri is and g Sh obligations under the various Development and water Agreements involvin several third- art g p Y entities relative to water sources, supply, easements and transmission Tines for the Pro'ect. J Therefore, the non performance was a result of conditions that could not have been foreseen b Y successor applicant are not the result of the its fault or negligence. Additionall ,the sub' ect land Y J is consistent with the General Plan and Zoning Code for this area, and the grantin of the time g extension would not be contrary to those documents, nor would it be contra to the on 'nal ry ~ reasons for the granting of the permit and ordinance. Therefore, on behalf of Kohala LLC, this will re uest an administrative ti q me extension to Condition C of Ord. 97-02 and Condition 4 of SMA 379 to obtain Final Subdivisi on Approval of the proposed residential subdivision from the Planning Director from July I4, 2007 to Jul 14 Y 2012. j a Christopher J. Yuen dune Page a Please feel free to contact me or my paralegal Katherine Luga should you have any questions or require additional information concerning this submittal. Thank you for your a consideration and assistance. Very truly yours, . 1 STEVE S~!C. LIM SSL/KYL xc: Kohala LLC 4831-3254-5281.1.058825-0001 6/6!0? .a F i i' ~ ~ ~ ~ A LIMITED LIABILI'T'Y LAW PARTNERSHIP 121 WAIANUENUE AVENUE P.O. Box 686 HILO, HAWAII 96721-0d86 TELEPHONE 808.935.6644 FAX 848.935.7975 V~~NW.CARLSMIT'H.COM ' SLIM~CARLSMITH.COM OUR REFERENCE NO.: 058825-1 June 5, 2007 Christopher J. Yuen Planning Director Planning Department 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Re: Change of Zone Ordinance No. 97-02 Special Management Area Use Permit No. 3 79 (SMA 97- I ) Original Applicant: Gentry-Pacific, Ltd. Successor Applicant: Kohala LLC, a Washington limited liability company Tax Map Key: (3~ 5-9-OOl :t)OS Dear Mr. Yuen: This firm represents Kohala LLC, a Washington limited liability company successor-in- interest to original applicant Gentry-Pacific, Ltd. under Ordinance No. 97-102 ("Ord. 97-02"} and SMA Use Permit No. 379 ("SMA 379"}. On July 14,1997, Ordinance No. 97-102 changed the district classification for the Property located southwest/makai of A.koni Pule Highway, situate at K:ahua 1st, North. Kohala, from Agricultural (A-Sa} to Single-Family Residential (RS-15} for approximately 37.88 acres. Pursuant to Candition T of Ordinance No. 97-102, Successor Applicant, Kohala LLC (hereinafter referred to as the "Applicant"} submits its 2007 annual report for the subject project, ~~r~; outlining its compliance with the substantive conditions of approval and listing in order the governmental "Condition" and Applicant's "Response" to the same. Condition A: The applicant, its successors or assigns shall be responsible for complying with all of the stated conditions of approval :r Response: Applicant will comply with the foregoing condition. HONOLULU KAPOLEI HILO KONA MAUI GUAM SAIPAN LOS ANGELES _ 'i r r Christopher J. Yuen -tune Page ~ Condition B: The applicant, its successors or assigns shall be responsible far complying with all of the conditions of approval of the Special Management Area Use Permit for the subject property. . Response: Applicant will comply with the foregoing condition. Condition C: The proposed development within the subject property shall consist of a maximum of fifty residential lots (not including roadway or other such common area lots}. Final Subdivision Approval of the proposed residential subdivision within the subject property shall be secured from the Planning Director within hve (S}years from the effective date of this ordinance. Response: Applicant will comply with the foregoing condition. Condition D: Restrictive covenants in the deeds of all proposed residential lots within the subj ect property shall prohibit the construction of a second dwelling unit on each lot. A copy of the proposed covenants to be recorded with the Bureau of Conveyances shall be submitted with the plans for subdivision to the Planning Director for review and approval. A copy of the approved covenants} shall be recited in an instrument executed by the applicant and the County and recorded with the Bureau of Conveyances in conjunction with the issuance of Final Subdivision Approval. Response: Applicant will comply with the foregoing condition. Condition E: In conjunction with Final Subdivision approval, the applicant shall construct the necessary distribution pipeline, service laterals, and ire hydrants, meeting with the requirements of the Department of 'Water Supply. No building permit for any of the residential structures shall be issued until units of water are available and committed to the subject property, as represented in the applicant's agreement with the Kohala Ranch Water Company (formerly Kohala Joint venture}. _ } Response: Applicant is currently assessing its rights and obligations under the various Development and Water Agreements involving several third party entities relative to water source, easements and transmission lines for the Project. Condition F: Access to the subject property from Akoni Pule Highway and any improvements within the Akoni Pule Highway shall be constructed prior to Final Subdivision Approval meeting with the requirements and approval of the State Department of Transportation. Response: Applicant will comply with the foregoing condition. ~y Christopher J. Yuen F~ _~~l~.P r Page 3 Condition G: Roadway connections to the adjoining parcel of the subject property's southeastern boundary shall be provided meeting with the approval of the . Department of Public Works and shall be delineated on the Penal subdivision plat map for the subj ect property. Response: Applicant will comply with the foregoing condition. Condition H: All interior roadways within the subject property shall be constructed meeting with the requirements of Chapter 23 of the Subdivision Code and with the approval of the Department of Public Works. Response: Applicant will comply with the foregoing condition. Condition I: All electrical and communication lines within the subject property shall be placed underground. Response: Applicant will comply with the foregoing condition. Condition J: A drainage study of the subj ect property, if required, shall be prepared for review and approval by the Department of Public Works, prior to submittal of plans for subdivision review. Drainage improvements, if required, shall be constructed or bonded meeting with the approval of the Department of Public works prior to the issuance of Final Subdivision Approval. Response: Applicant will comply with the foregoing condition, if required by the Department of Public K'orks. Condition K: The applicant, its successors ar assigns shall prepare a Solid Waste Management Plan prior to securing Final Subdivision Approval for the proposed development within the subject property meting with the approval of the Department of Public Works. A copy of the approved Plan shall be submitted to the Planning Director. R nse: A plicant will comply with the foregoing condition. ~ p Condition L: To ensure that the goals and policies of the Housing Element of the General Plan are implemented, the applicant shall secure the concurrence of the QfPice of Housing and Community Development that the applicant's affordable housing requirements, if any, have been mutually agreed to prior to Final Subdivision Approval. Response: Applicant will comply. with the foregoing condition. Condition M: A Data Recovery Plan and Preservation Plan shall be prepared for the review and approval by the Planning Director in consultation with the Department of Land Christopher J. Yuen ~~i~4~ ~ 2~~~ Page 4 and Natural Resources-Historic Preservation Division (DLNR-HPD). Proposed mitigation treatment (preservation in place or disinternment/reinternment) for burial sites within the subject property shall be approved by the Historic Preservation Division's Hawaii island Burial Council before detailed mitigation plans are finalized for these sites. A copy of the approved Final Data Recovery Plan and Preservation Plan shall be submitted to the Planning Director prior to submitting plans for subdivision review and prior to any approval for any land alteration permits. Response: An Archaeological Inventory Survey was conducted by PHRI. ~'he Site Preservation Plan and Burial Treatment Plan were approved by SHPD. PHR~ has informed Applicant that it has completed the Final Data Recovery Plan and Preservation Plan, copies of which will be provided to the Planning Director upon receipt from PHRI. Condition N: Should any remains of historic sites, such as rock walls, terraces, platforms, marine shell concentrations or human burials, be encountered, work in the . immediate area shall cease and the Deparhnent of Land and Natural Resources- HistoricPreservation Division (DLNR-HPD} shall be immediately notified. Subsequent works shall proceed upon an archaeological clearance from the DLNR HPD when it finds that sufficient mitigative measures have been taken. Response: Applicant will comply with the foregoing condition. Condition d: The applicant shall develop and submit a comprehensive public access plan for the subject property for review and approval to the Planning Director, in consultation with the Department of Land and Natural Resources in conjunction.. with Final Subdivision Approval. The public access plan shall provide for mauka-makai and lateral shoreline pedestrian accessways, public parking stalls for users of the shoreline area, signage, and restrictions on use (if any}. Such public access improvements shall be completed prior to Final Subdivision Approval for any portion of the subj ect property. Response: Applicant will comply with the foregoing condition. Condition P: The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation, fire, ~Y. police, solid waste disposal facilities, and roads. The amount of the fair share contribution shall be the sum which is the product of multiplying the number of residential lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot, and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments. If the subject property is subdivided in two or more increments, the amount of the fair share contribution due and payable prior to final subdivision approval of each increment E 3' Christopher J. Yuen Jane ~ j ~ Page ~ shall be a sum calculated in the same manner according to the number of additional proposed residential lots in each such increment. The fair share a contribution may be in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies. The fair share contribution shall have a maximum combined value of $7,239.16 per lot. Based upon the applicant's representation of intent to subdivide and develop up to fifty (50) residential lots, the indicated total fair share contribution is $361,958.00, however, the total amount shall be increased or reduced in proportion with the actual number of subdivided lots according to the calculation and payment provisions set forth in this Condition P. The fair share contribution shall be allocated as follows: 1. $3,494.85 per lot, for an indicated total of $174,542..50 to the County to support park and recreational improvements and facilities; 2. $168.40 per lot, for an indicated total of $8,420.00 to the County to support police facilities; 3. $332.61 per lot, for an indicated total of $16,630.50 to the County to support fire facilities; 4. $145.62 per lot, for an indicated total of $7,281.00 to the County to support solid waste facilities; S. $3,101.68 per lot, for an indicated total of $155,084.x0 to the State ar County to support road and firaffic improvements. The fair share contributions described above shall be adjusted annually beginning three years after the effective date of the change of zone,. based an the percentage change in the Honolulu Consumer Price Index (RCPT}. In lieu of paying the fair share contribution, the applicant may construct and contribute improvements/facilitiesrelated toparks and recreation, fire, police, solid waste disposal facilities, and roads within the region impacted. by the proposed development, subject to the approval of the director. The cost of providing and constructing the improvements required in Condition. F shall be credited against the sum specified in Condition P (5) for road and traffic improvements and Condition 0 shall be credited against the sum specified in Condition P(1 }for parks and recreation. For purposes of administering Condition P, the fair market _ value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be subject to the review and approval of the director, upon consultation with the appropriate agencies. Response: Applicant will comply with the foregoing condition. _ ~ , . . ~ ~ --....v.a.Y~ . Christopher J. Yuen Page 6 Condition Q: In lieu of actual construction of infrastructural improvements as required under Conditions E, F, H, J, and 0, the applicant may enter into an agreement with the County to assure the County that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable by the Planning Director or appropriate agencies and approved by the Corporation Counsel. Upon execution of such agreement andlor filing of the security with the County, final subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements. Response: Applicant will comply with the foregoing condition. Condition R: Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the easements of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance. Response: Applicant will comply with the foregoing condition. Condition S: Comply with applicable laws, rules, regulations and requirements of other affected agencies far approval of the proposed development within the subject property, including the Department of Health. Response: Applicant will comply with the foregoing condition. Condition T: An annual progress report shall be submitted to the Planning Director prior to the anniversary date of the approval of the ordinance. The report shall include, but not be limited to, the status of the development. and to what extent the conditions of approval are being complied with. This condition shall remain in effect until all the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. Response: In compliance with the foregoing condition, Applicant submits its 2007 annual progress report to the Planning Department. :k Condition [J: An initial extension of time for the performance of conditions within the ordinance maybe granted by the Planning Director upon the following ~i Y circumstances: I . The non-performance is the result of conditions that. could not have been foreseen or are beyond the control of the applicants, its successors or assigns, and that. are not the result of their fault or negligence. ~ a - Christopher J. Yuen .T~~no ~t14~ Page 7 2. Granting. of the time extension would not be contrary to the General Plan or Zoning Code. J 3. Granting of the time extension would not be contrary to the original reasons for the granting of the change of zone. Response: Applicant is seeing a time extension in order to comply with the aforementioned Change of Zone conditions. SMA On August 20,1997, S1VIA 379 was approved to allow for the development of a 50-lot single- familyresidential subdivision and related improvements. Condition I : The applicant, its successors or assigns shall be responsible for complying with all of the stated conditions of approval. Response: Applicant will comply with the foregoing condition. Condition 2: The effective date of this Special Management Area Use Permit shall be the effective date of the Change of Zone ordinance. .Response: Applicant will comply with the foregoing condition. Condition 3: The applicant, its successors or assigns shall be responsible for complying with all of the conditions of approval of the Change of Zone ordinance. Response: Applicant will comply with the foregoing condition. Condition 4: Final Subdivision Approval of the proposed residential subdivision shall be secured from the Planning Director within five (5) years from the effective date of this permit. Response: Applicant will comply with the foregoing condition. Condition 5: All above ground structures shall be set back a minimum of 54 feet from the front property line along Akoni Pule Highway. R nse: Applicant will comply with the foregoing condition. Christopher J. ~'uen ~t~.~ne 2t1~1~ Page ~ Condition b: A reliminary site plan shall be redesigned in order to create mauka-makai view p corridors from Akoni Puie Highway and shall be submitted in conjunction with.~the subdivision plans. Such plan shall meet with the approval of the Planning Departrr~ent. , Response: Applicant will comply with the foregoing condition. Condition 7: A mauka-makai road access of sufficient width to accommodate vehicle access 24 hours a day for drop off and pickup shall be provided, along with the minimum 10-foot wide lateral public access walkway along the shoreline. The type of improvements and specihc location of the walkway shall be determined at the time of subdivision approval review. Further, a minimum of four on-site public parking stalls to serve the walkway, shall be provided and clearly identified. A shoreline setback variance shall be secured for any improvements to the public access which will be within the 40-foot shoreline setback area. Construction of the public walkway and parking stalls shall be completed prior to issuance of any building permit for any structures. Response: Applicant will comply with the foregoing condition. C©ndition 8: The applicant shall develop and submit a comprehensive public access plan for the subject property for review and approval to the Planning Director, in consultation with the Department of Land and Natural Resources (Na Ala Hele Trails Program), in conjunction with Final Subdivision Approval. The public access plan. shall provide for mauka-mauai and lateral shoreline pedestrian access ways, public parking stalls for users of the shoreline area, signage and restrictions on use (if any). Such public access improvements shall be completed prior to Final Subdivision Approval for any portion of the subj ect property. Response: Applicant will comply with the foregoing condition. Condition 9: A drainage study of the project site shall be prepared for review and approval by _ the Department of Public Works, in conjunction with submittal of plans far subdivision review. Drainage improvements shall be constructed or bonded in a manner meeting with the approval of the Department of Public works prior to the issuance of Final Subdivision Approval. Res. onset Applicant will comply with the foregoing condition. ` p Condition 10: A Data Recovery Plan and Preservation Plan shall be prepared for the review and approval by the Planning Director in consultation with the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD). Proposed mitigation treatment (preservation inplace or disinternment/reinternment) for burial sites must be approved by the Historic Preservation Division's Hawaii 3 Christopher J. Yuen Page 9 Island Burial Council before detailed mitigation plans are finalized for these sites. A copy of the approved Final Data Recovery Plan and Preservation Plan shall be submitted to the Planning Director for its files prior to submitting plans for subdivision review and prior to any approval for any land alteration permits. .Response: An Archaeological Inventory Survey was conducted by PHRI. The Site Preservation Flan and Burial Treatment Plan were approved by SHPD. PHRI has informed Applicant that it has completed the Final Data Recovery Plan and Preservation Plan, copies of `which will be provided to the Planning Director upon receipt from P~IR~ Condition 1 I : Should any remains of historic sites, such as rock walls, terraces, platforms, marine shell concen~ations or human burials, be encountered, work in the immediate area shall cease and the Department of Land and Natural Resources- Historic Preservation Division (DLNR-HPD~ shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DLNR- HPD when it finds that sufficient mitigative measures have been taken. Response: Applicant will comply with the foregoing condition. Condition 12: Comply with applicable laws, rules, regulations and requirements of other affected agencies for approval of the proposed development within the subject propf~ty, including the Department of Health. Response: Applicant will comply with the foregoing condition. Condition l3: An inifial extension of time for the performance of conditions within the permit may be grants by the Planning Director upon the following circumstances: A. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, its successors or assigns, and that are not the result of their fault or negligence. B. Granting of the time extension would not be contrary to the General Plan or Zoning Code. C. Granting of the time extension would not be contrary to the original reasons for the ntin of this ermit. g p ~~~,.~_,.m~me,,:~ _ z f s . Christopher J. Yuen ..Tune ~ ~~14) Page } n D. The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year}. Res once: Applicant is seeking a time extension in order to comply with the aforementioned p SMA conditions. Condition I4: Restrictive covenants in the deeds of all proposed residential lots within the subject property shall prohibit Bed and Breakfasts on each lot. A copy of the proposed covenants to be recorded with the Bureau of Conveyances shall be submitted with the plans for subdivision to the Planning Director for review and approval. A copy of the approved covenant(s) shall be recited in an instrument executed by the applicant and the County and recorded with the Bureau of Conveyances in conjunction with the issuance of Final Subdivision Approval. Res nse: A licant will comply with the foregoing condition. po pp Thank you for the opportuiuty to present this 2007 annual report on behalf of Kohala LLC. Please feel free to contact me at 935-6644 should you have .any questions concerning this report. Very truly yours, Steven S . Li SSLfiah cc: Nathan Myhrvold asi i ~a~-sios.i ~ - ~~y H? • A- GO . ~ ~ . L~ '~~i " ~~'''s• Virginia Goldstein ten K. Yamashirv ' ~ ' * D ircctor Mayor • • r . ` . Nvrrnan Olesen 'h~'oi Deputy Director ~ ~ ~~~~N~ l5 Aupuni Street, Room 109 • Hilo, H~ii 96720-4251 1808) 96i-8288 ? Fix (808 96I-9615 CERTIFIED MATT, September 15, 1993 Mr. SZdney Fuke I00 Pauahi Street, Suite ZI2 Dilo, HI 9624 Dear Mr. Fuke: Special Management Area (SMA} Minor Permit No. 93-~.9 Shoreline Setback Area Minor Activity netermination Proposed construction of Single Farmly And Ghana Dwellings And Lateral Public Access Ease~aent T~K: 5-9-4I: ~ • Kahualiilii riiorth Kohala Hawaii We have received on June ~4, 1}~3, and reviewed a Special Mans Area ~ SMA} Dse Per~tit Assessment A lica Bement Fp tion far the proposed construction of a one-story, four bedr©om single Tamil dwellin a two-story one bedroom ohana dwellin Y g and g, and for the establishment of a perpetual. lateral access easement along the shoreline of the 28.88 acre subject property at Kahualiilii, N'arth Kohala. The main dwel I ing wi I I be bu It X60+ feet raauka of the certified shor feet southwest of the north r cline, 20 e n property Tine and ®ve r 5 0 0 feet ma ka i of the highway frontage of the property. The ©hana dwel . ling wIII be located about 80 feet l~auka of the train dwelling, about I74 f f ram the certified shoreline a ad' eet •~acent to a four-car garage. Access to aII structures will be v~.a an I8+-foot wide aved driv from tho hia~?way : The subs ect ro er ~ P eway • ~ F F ty IS ..~,~.a ~.cd on she Tiakal S 1C.lC of the Akon~ Pule Highway ~Kawarhae-Mahukona ~Qad), directl from the entrance ~to the Kohala Estates Subdiv' y across Ision. The proposed construction of the two dwellings, gara a and appear to be within or ne g driveway xt to ~ archaeological features ~SI~P Nos. 4415-40I8~ . The ~.©cation also is to occupy a portion. of the approximate location of the Alaloa Trail. Archaeol© ical recover and Ilea g data y ranee from the State historic Preservation Division will occur before site alteration activities are be un. W actual fee inter 9 hlle the est in the trail location was legally transferred to private ownership pursuant to a stipulation dated A ri the ubl' F 127, I9Z9, p is interest in the lateral access remains unres©Ived. To that end-, the applicant has offered to establish a er etual easement alon the coastli P p 9 ne to allow public pedestrian access ju t ~~~~r~i~ ~'p . ~x~ i ~ i~ a . . Mr. Sidney ~'uke Page 2 September L5, I943 mauka of the certified shoreline thr©ugh the makai breadth of 28.88 acre parcel. The sub' the " " ~ect.SMA Minor and a determination of minor activity within the r~In~.mum_ 40-foot shoreline s . etback area are herein given to effectuate the lateral public access and t© allow the approval of the proposed construction. liven the above access easement consideration w . ro used construc e f znd that the P P tion of the aforementioned single fa~aily dwellin ohana dwelling, garage, and access drivewa f rom 9, y the Akoni Pule Highway are outside the definition of "development" under P ' lann~ng Com~tisson Rule No. 9, Special Ma~age~nent Area Rules and Regulations. The proposed dwelling and adjacent accessar f are mauka of the shoreline cer `f' Y eatures ti red January 7, ?993, and are outside the 40-foot shoreline setback area. Therefore thi specific action, as described above and di ~ s agrarctmed In the plot plan, is eaempt from further SMA review. The establish~aent of th e perpetual public lateral access easement within the 40-f oat shoreline setback area in to be covered under ~~A Minor Permi 93-1g below. This eae~ct Lion w' t Ito. p 111 take effect upon recordation of the public access easement with the State Bureau of Conve ante directed by the conditions of the 5;E+~A Min y s , a s _ or Permrt No. 93 29 below. SPECIAL MANAGEMENT AREA MINOR PERMIT N0. 9I-Z9 BACK~'ROtJND INEORMATIQN Applicant`s representative Sidney Fuke, in behalf of ro ert Tom dent ry/dent r Hawaii I,t d. i P P y own e r . h s applying for a Special Management. Area ~~N1A} A~rnor Permit to establish a perpetual easement in f av of the State IIepartFaent of ~?and and Natural R or esources for public pedestrian access along the shoreline of the 28.88 acre sub'ec parcel. This easement i s offered b ~ ~ t • y the appl_cant s cl+ent in response to this office's concerns that the Alaloa Trail is :Tatted to run through or neat to the buildin si P g to area for the af-orementioned dwellings. Although a recent archaeolo ical could not locate the all rurtent of th g survey g e trail this was probably obscured by the later use of the approairnate trail ail nr~ten deep track , the ublic w' g t by a ~ P Ill he able to .achieve coat arable lot access via the easement. Publ' P eral is access via this easement will be assured, in keeping with the policies, objectives and uidei~' the Special Dana ement Area R I g Ines of g u es and Regulations Planning Commission Rule No. 9~, while the applicant will at the sa . me t Ire be authorized to construct the aforementioned dweZlin s within g the SMA. Further elaboration of the fee ownership of the =t Mr. Sidney Fuke Page 3 September 19g3 AlaloafMahukona-~awaihae Trail was given in an Au ust 30 19 to the Administrator of the g 93, memo D~vlsron of Forestry and Wildlife, Department of Land and Natural Resources, from the De artrnent o Attorney General. This ~aemo con 1 P f the c odes that the trail is not owned in fee simple by the State of ~iawaii due to~ a Sti ulation P dated April 2?, ~.g29, in which the trail .was exchanged for the Gov Main Road through Lots A and H of Land ernment Court Application X043 ~ahualii ? ii and ~Iaika, North ~ohala. SHIIREL~NE. A shoreline survey map of the whole 28.88 a~~e sub' parcel was certified b the chair er 3ect y p son of the Board of Land and Natural Resources on January 7, I993. A 4o-foot shore~.ine setba is determined from this shoreline.. ck The proposed public pedestrian access easement is to be located a the most seaward portion of the shoreline setba s ck area, extending 6 feet mauka ©f and parallel to the certified shoreline all nment future all ~ n~aents ~ This shor 9 {and g ) erne position is approximatel the top of the coastal bluff . y At least initially, the easement is not planned to be si. nifican 1 improved beyond the lacement of 9 t y P public access signs and markings and/or definitions of the location of the easement {perha s b landscape plantings, in art As such w P y ` P ) e have deter~a~ned that the establish~aent of the proposed pubic access easement, as described and diagramed in~the submitted application materials, is a mino r activity as defined in Planning Corc~nission Rule No. 8 Secti . , on 8-3{g}. Section 8-?{d} excepts such a determined minor activit. fr©m the requirement for a Shoreline Setback v Y ariance. Should the landowner or easement beneficiary wish to further improve the easement in the future, a request for a minor structure determination may be made, pursuar_t to the sane or similar secti n es of Rule 8 and to Rule 4, relating to the SMA. LAND USE. The subject property bears a State Land Use { SLti) District classification of "Urban" and County zonin of Un l The General Plan Land Use P g P anned. attern Allocation Guide {LUPAC} Map designates the subject parcel and area to the southwest for Low Density Urban uses, and the coastal area proposed for the u ' p bloc access easement is designated for open Area uses. The surroundin lots on the mauka side of the hi hwa bear g 9 y a SLU District classification of "Agriculture", County zoning of Un lanned P , and General Plan Land Use Pattern Allocation Guide fLUPAG) Ma P designation of Extensive Agriculture. The land irc~mediatel to the northwest, on the makai side of the hi Y ghway, bear a State Land Use {SLU) District classification of "conservation" ~ and Count zonin of . Y. 9 _ Unplanned. Existing uses are ranching or vacant, with residences established mauka of the highway in the Kohala Estates subdivisions. w~.. Mr. Sidney Fuke Page 4 September I5j I9g3 HAZARDS. The Flood Insurance date Maps FIRM}, pre ared b the Federal Emergency Mana ement A enc P Y g g Y CFA} , identifies the subject area to be affected by the coastal High Hazard. or Tsunami Area along a coastal strip about 40-160 feet in width ' This zone has a Base Flood Elevation of 6 feet in the area, mauka of ' which occurs zone outside the 500-year floodplain. The site Ian the proposed dwellings indicates that Wei P fvr then house pad will be below the ~5 foot elevation contour, well outside the "vE" The Lava Flow Razard Map for the island ©f Ha zone. waii identifies the area of the subject parcels to be on Rohala volcano in Lava Haz Zane g, done 1 being the ~aost hazardous a rd zone. ~EGETATI~}M. The vegetation on the subject parcel consists of an open kiawe ~Prosapis pawl da} forest with understor of ras young kiawe and a few other shrubs an y g ses, d seasonal herbs. This vegetation type is predominantly of introduced plants bas b subjected to protracted gratin ressure an ~ een . 9 P d is not e~cpected to contain rare native plant or ani~aaal species, based on cumulative observations at similar locations along this part of the Rohala coastline. ~IST~RI~ ~TAT~JS. An archaeological inventory survey re ort for th subject parcel 7 and arcel 8 totallin P e P g about I03 acres, was prepared in February, I943, and is under review by the ~iistoric Preservation D~vis~on of the Department of Land and ATatural Resources. Sixty-eight sites consisting of 175 features were located or relocated and evaluated. Of these, onl one site w found in the a ro~cimate y. ~ as PP area of the proposed dwellings construction, at the edge of Site Couple= No. 5Q-IO-05-415. Thi site is composed of 4 habitation features of limi s ted significance. Archaeological data recovery and clearance from the State Hista ' rz c Preservation Division will occur before dwelling or drivewa ro alteration activities are un. Th Y g and . beg a Alal©a trail is reported to be in the vicinity as well, but despite specific effort to lv?c ate physical evidence of the trail, Wane was found. It a ears conversion to a `ee trail ha PP that the ~ p s el~~c~nated any of its archaeological features. The only feature mapped along the coastline to be used far the Public access easement is a boundary wall. FI~DI~OS ADD DETERMINATION tJgon review of the request against the guidelines far raatin 9 ga Special Management Area Permit, the Planning Director hereb approves a Special Mana ement Area Mino y . .g _ r Permit. The proposed action is cans~stent with the Ob~ect~.ves, Policies and SMA _ _ °a s Mr. Sidney Fuke Page 5 September I5, Igg3 Guidelines which were established to provide guidance for the -preservation, protection, and development of coastal resources of the State and county. They identify several areas of management concern including historic, recreation, scenic. resources, coastal ecosystems, economic use, and coastal hazards. The proposed establishment on the subject property of a 6-foot wide public access easement along the certified shoreline, within the 4Q-f©ot shoreline setback area, is not expected to have any detrimental effects on the Special ~tanagernent Area, as determined from the following findings and conditions. The total valuation of the project will not exceed $I25,~o0; and the proposal will not result in a significant adverse effect on the Special Management Area. The certified shoreline lies i~nediately makai of the proposed easement, and the intent of the easement is to provide lateral pub~.ic access through the subject parcel along the shoreline. Lateral public access will remain uni~apeded along- the coast here even if the shoreline recedes, as the ~ctakai boundary of the easement is the current or ~aost recent certified shoreline, and the ~-foot width "floats" mauka of the certified shoreline. The perpetual aspect of this public pedestrian access easement will be maintained as an encumbrance on the 28.88 acre property in favor of the State department of Land and Natural Resources, as recorded with the State Bureau of conveyances. Public access via this ease~cent will be assured, in keeping with the policies, objectives and guidelines of the Special Management Area Rules and Regulations Planning cornraission Rule ~o. 9). considering the prolonged shoreline exposure of the easement and the past replacement of the native vegetation with mostly introduced species, it is highly unlikely that any rare or endangered species of plant or animal exist on the site.. Similarly, no significant historic sites were observed or are expected to be negatively affected by the easement. Given the relative paucity of features at the proposed house sites and public access easement, the degree of analysis completed for the survey report, and the data recovery which should occur before ground disturbance is initiated, it is believed that the proposed activities will not be detrimental to the overall historic condition of the site complex. we have also determined that the proposed establishment of a public access easement is an exempt class of action which does not require the preparation of an environmental Assessment under Chapter 3~~, Hawaii Revised Statutes. . y...ew.:~-..m.xi=.av....ewe..a~..r........_....~m::~,~u~n._~_ e.:.wr~ww~+ W~1ifii~d~ r Mr. Sidney Fuke Page September I5, I993 Based on the above findings, the Iirnited nature of the project, and given the proposed conditions, the grantin of this re u ' g q est wi 1 l not impact the identified resources . Therefore, the grantin of thi s g request will not be contrary to the purpose and intent of Cha to r 205-A, HRS, relatin to Coastal Zone Ma p . 9 nagement; Rule 9 of the Planning Con~a~ss~on relating to the Special Management Area; or the General Plan. A Special Management Area Minor Use Per~?it is further approved subject to the following conditions: I. The applicant, its successors or assigns shall be responsible for complying with all conditions of approval. 2. The applicant shall comply with all. other a lica pp ble Laws, rules, regulations and requirements. 3. The life of authorization of this per~ait is two ears. p However, the intent of the established pedestrian access easement along the coastline of the subject property is perpetual. Planning Conmtission Rule No. 8, Section 8-~{d}{2}, requires that the minor activity {the establish~cient of the public access easement, including recordation} shall be completed within one year of the date of the Department`s determination that the proposed project is a minor structure and the same ~ { date as this SMA Minor Permit}. 4. Any deviations from the proposed project as ex lained in P body of this permit will require advance approval from the Planning Department. 5. Five copies of the legal easement description ire favor of the State. Department of Land and Natural Resources for public pedestrian access purposes over and across the 28.88 acre land of Lot 4A, sand court consolidation Ho. 129, and the associated survey rnap{s}, as described herein, shall be provided for recordation with the State Bur eau of conveyances and for residence in the files at the Hilo and ~{ona offices of the Planning Department and in the files of the Hilo and Honolulu offices of the Department of Land and Natural Resources . The intent i s for the term of this easement to be perpetual and binding upon the landowner, successors and assignees, and for the pedestrian public to have continuous lateral shoreline access across the subject property, and any future subdivision thereof. a fir. S1C~ne~' Fuke . Page ~ September 15, I99~3 6 . The. effective date of the SMA exemption f ©r the ra os ed canstructian of the two afor P P ementioned dwellings shall be the date of rec©rdatiQn of the perpetua 1 public acees s easement described in condition. 5 above. At least two Planning Dep~rt~nent a .rove • . PP d gubl2c shoreline access signs shall be erected at or near the northwest and southwest ends ©f the subject parcel alan the ubli ,g P c access easement, tQ be kept plainly visible to the pubic traveling slang the shoreline. Should you have any questions about this permit lease ' Warshauer or Rodne Nakano a h` P e contact Rlck y t t is office. Sincerely. ~ ~ IR~INIA ~}~?DSTEIN ~ - Planning Director . hief Engineer Date FRW: rah h 4~~~Q xc: D~NI~~`Na Ala Hele, Hilo, w/attachment DDNHINa AIa Hele, Hanoiulu, wfattachment Dawn N.S. Chang, Deputy A.~. - West Hawaii off ice, w/attachment SIN~A, Section COUNTY OF HAWAII _ STATE OF HAWAII BILL NO. ~ 96 ra t ORDINANCE NO. 9'~ 102 AN ORDINANCE AMENDING SECTION 25-8-7 (NORTH AND SOUTH KOHALA DISTRICTS ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING CODE) OF TTY HAWAII COUNTY CODE, BY CHANGING TIC DISTRICT' CLASSIFICATION FROM AGRICULTURAL (A-Sa) TO SINGLE FAMILY RESIDENTfAL (RS-15) AT KAHUA 1ST, NORTH KOHALA, HAWAII, COVERED BY TAX MAP KEY 5-9-01:08. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SEG"TION 1. Section 25-8-7, Article 8, Chapter 25 (Zoning Code) of the Hawaii County Code, is amended to change the district classification of propcrry described hereinafter as follows: The district classification of the following area situated at Kahua 1st, North Kohala, Hawaii, shall be Single Family Residential (RS-15): Beginning at a point at the North comer of this piece of-land, being also the East comer of portion of Government land of Pahinahina and on the Southw~st~rly side of Kawaihae Mahukona Road, Section II, Project No. A-270-01-62, the coordinates of which referred to Hawaii State Plane Coordinate System, Zone 1 being 453,109.73 feet North and 375,771.74 feet East, and nicuiing by true azimuths referred to the Meridian of Government Survey Triangulation Station "PW PILI" and measin~ed clockvwise from South: 1. 322° 00' 30.5" 24.31 feet along the Southwesterly side of Kawaihae Mahukona Road; 2. 52° 00' 30.5" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 3. 322° 00' 30.5" 550.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 4. 52° OU' 30.5" 10.00 feet along the Southwesterly side of Kawaihae Mahukona Road; ~?O~~i11i1~ ~8~t. Exfiibi~ ~ Y S. 322° 00' 30.5" 100.00 feet along the Southwesterly side of Kawaihae Mahukona Road; b. 232° 30.5" _ 20.00 feet alang the Southwesterly side of Kawaihae Mahukona Road; 7. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae lvlahukona Road; 8. 232° 00' 30.S" 20.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 9. 322° 30.5" 500.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 10. S2° 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 11. 322° 00' 30.5" 400.00 feet along the Southwesterly side of Kawaihae Mahukona Road; I2. 232° 00' 30.5" 40.00 feet along the Southwesterly side of Kawaihae Mahukona Road; 13. 322° 00' 30.5" 1 S 1.70 feet along the Southwesterly side of Kawaihae Mahukona Road; I4. 2b° 03' 889.9S feet along Lot 4, as shown on I~Iap 4 of Ld. Ct. Cons. 129; Thence along ,highwater mark vegetation line} as of January 7,1993 for the next thirteen (l3~ courses, the direct a~amuths and distances between points on said highwater mark being: 1 S. 13~° 21' 40" 51 b.93 feet; r 1 S s 1 b. 1 s s ° 00' 250.00 feet; I1. 1.28° 30' 95.00 feet; 18. 180° 20' 142.80 feet; 19. 93 ° 00' 104.00 feet; 20. 154° OS' 253.40 feet; 21. 1 s 1° ~ s' 22s.2a feet; 22. 57° 40' 106.30 -feet; 23. 11b° 3 s' 213.10 feet; 24. 98° 00' 112.8s feet; 2s. lOS° . 20' 83.55 feet; 26. 89° 00' 181.00 feet; 27. ~ Is0° 20' ~ 77.3s feet; 28. 20b° SO' 35" 1,0?5.00 feet along portion of the Gover~anent land of Fahinahina to the point of begiuaning and.. containing an area of 37.880 acres, more or less. Ati as shown on the map attached hereto, marked Exhibit "A" and by reference made a part hereof. SECTION 2. This change in district classification is conditioned upon the following: A. The applicant, its successors or assigns shall be responsible for complying with all of the stated conditions of approval. _3. h y B. The applicant, its successors or assigns shall be responsible for complying with alI of the conditions of approval of the Special Management Area Use Pernut for the subject property. C. The proposed development within the subject property shall consist of a maxunum of fifty residential lots (not including roadway or other such common area lots). Final Subdivision Approval of the proposed residential subdivision within the subject ro shall be secured from the Plaru~in Director within J P Perty g fivc (S) years from the effective date of this ordinance. D. Restrictive covenants in the deeds of all proposed residential lots within the subject property shall prohibit the construction of a second dwelling unit on each lot. A copy of the proposed covenants to be recorded with the Bureau of . Conveyances shall be submitted with the plans for subdivision to the Planning Director for review and approval. A copy of the approved covenants) shall be . recited in an instnunent executed by the applicant and the County and recorded with the Bwreau of Conveyances in conjunction with the issuance of Final Subdivision Approval. E. In conjunction with Final Subdivision approval, the applicant shall construct the necessary distribution pipeline, service laterals, and fire hydrants, meeting with the re uirements of the Department of Water Supply. No building permit for any q of the residential structures shall be issued until units of water are available and committed to the subject property, as represented in the applicant's agreement with the Kohala Raab Water Company (formerly Kohala Joint Venture). F. Access to the subject property from Akoni Pule Highway and any improvements within the Akoni Pule Highway shall be constructed prior to Final Subdivision Approval meeting with the requirements and approval of the. State Department of Transportation. . -4- t a G. Roadway connections to the adjoining parc~i of the subject property's southeastern boundary shall be provided meeting with the approval of the Department of Public Works and shall be delineated on the final subdivision plat map for the subject property. - H. All interior roadways within the subject property shall be constructed meeting with the requirements of Chapter 23 of the Subdivision Code .and with the approval of the Department of Public Works. I. All electrical and communication lines within the subject prop~:rty shall be placed underground. J. A dt~ainage study of the subject property, if ~ shall be for rwiew and approval by the Department of Public works, prior to submittal of plans for subdivision review. D~~nage improvements, if required, sha11 be constructed or bonded meeting with the approval of the ent of Public .'Works prior to the issuance of Final Subdivision Approval. K. The applicant, its successors or assigns shall pr~:pare a Solid Waste Management Plan prior to securing Final Subdivision Approval for the proposed development within the subject prop~rrty meeting with the approval of the Department of Public Works. A co of the approved Plan shall be submitted to the Planning Director. PY L. To ensure that the goals and policies of the Housing Element of the General Plan are implemented, the applicant shall secure the concurrence of the Office of Housing and Community Development that the applicant's affordable housing re uirements, if any, have been mutually agreed to prior to Final Subdivision q Approval. .S. M. A Data Recovery Plan and Preservation Plan shall be prepared for the review and approval by the Planning Director in consultation with the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD). Proposed mitigation treatment (preservation in place or disinternment/reinternment) for burial sites within the subject prop~rriy shall be approved by the. Historic Preservation Division's Hawaii island. Burial Council before detailed mitigation plans are finalized for these sites. A copy of the approved Final Data Recovery Plan and Preservation Plan shall be submitted to the Planning Director prior to submitting plans for subdivision review and prior to any approval for any land alterarion permits. N. Should an remains of historic sites, such as rock walls, terraces, platforms, . y marine shell concentrations or human bwri;a~ls, be encountered, work in the immediate area shall cease and the Department of Land and Natural Resources-Historic Preservation Division (DLNR•HPD) shall be immediately notified. Sulbseduent work shall pr~?ceed upon an archaeological clearance from the DLNR-HPD when it finds that suf ficient mitigative mes~ues have been taken. 0. The applicant shall develop and submit a comprehensive public access plan for the subject prop~nty for review and approval to the Planning Director, in consultation with the Department of Land and Natural Resources in conjunction with Final Subdivision Approval. The public access plan shall provide for mauka-makai and lateral shoreline pedestrian accessways, public parking stalls for users of the shoreline area, signage; and restrictions on use cif any). Such public access improvements shall be completed prior to Final Subdivision Approval for any portion of the subject property. P. The applicant shall make its fair share contribution to mitigate the potential . regional impacts of the subject property with respect to parks and recreation, fire, police, solid waste disposal facilities, and roads. The amount of the fair share _b_ l contribution shall be the sum which is the product of multiplying the number of residential lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot, and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments. If the subject property is subdivided in two or more increments, the amount of the fair share contribution due and payable- prior to fvnal subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed residential lots in each such increment. The fair share contribution may be in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies. The fair share contribution shall have a II~aximum combined value of $7,239.16 per lot. Based upon the applicant's representation of intent to subdivide and develop up to fifty. X54} residential lots, the meted fatal fair share contn~urion is ~:i61,958.00, however, ~ total amount shall be incr~,ased or reduced in proportion with tie actual number of subdivided -lots according to the calculation and payrncut provisions set forth in this. CanditiQn P. The fair share contribution shall be allocated as foilows: 1. $3,490.85 pcr lot, for an indicated total of $174,542.50 to the County to . support park and recrc;ationat improvements. and facilities; 2. $1.68.44 per lot, for an indicated total of $8,420.00 to the County to support police facilities; ~ . 3. $332.61 per lot, for an indicated total of $1,630.50 to the County to support fire facilities; 4. $145. b2 per lot, for an indicated total of $7,281.00 to the County to support soiid waste facilities; .1. S. $3,101.68 per lot, for an indicated total of $155,084.00 to the State or County to support road and traffic unprovements. The fair share contributions described above sball be adjusted arinuaUy be inuring three years after the effective date of the c~~ange of Zone, based on the. 8 percentage change in the Honolulu Consumer Price Index (RCPT}. In lieu of a in the fair share contribution, the applicant may construct and contribute PY g improvements/facilities related to parks and recreation, fire, police, solid waste disposal facilities, arxl roads within the region impacted by tl~ proposed development, subject to -the approval of the diroctar. The cost of providing and constructing the improvements requ~ned in Condition F shall be credited against the sum specified in Condition P(5) for road and traffic improvements and Condition 0 shall be aedited against the sum specified in Condition P(1) for perks and. recreation. For purposes of administering Condition P, the fair market value of Land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be subject to the review and approval ofthe- director, upon consultation with the appropriate agencies. Q. In lieu of a~rtual construction of infrastructural improvements as requiired under Conditions E, F, H, J, and 0, the applicant may enter into an al~eement with the County to assure -the County that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable by the Planning Director or appropriate agencies and approved by the Corporation Counsel. Upon execution of such agreement andlor filing of the security with the County, final subdivision approval for the subject pmp~rrty or portions thereof shall be granted prior to the actual construction of required infrastructural improvements. _g_ X~ R. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the easements of impact fees, conditions included herein shall be credited towards the requirements of the Unified Irr~pact Fees Ordinance. - S. Comply with applicable laws, rules, regulations and requin~ments of other affected agencies for approval of the proposed development within the subject property, including the Department of Health. T. An a~u~uual progress report shall be submitted to the Planning Director prior to the annive~ date of the approval of the ordinance. Tl~e report shall it'clude, but not be Limited to, the status of the development and to what extent the conditions of approval are being complied with. This condition shall remain in effect wail all of the conditions of approval have been co~nplicd with and the P~ Director aclmowledges that further reports are not required. U. An initial extension of time for the perfarnaance of conditions within the ordinance may be gnu by the Pialuiing D~n~tc~r upon. the following CirCUmStanCeS: - ~ . The ~n-perforn~anct is the result of conditions that could ~t have been foreseen or are beyond the control of the applicants, its successors or assigns, and tba~t an not the result of thcir fault or negligence. 2. Granting of the tiinc extension would ~t be con~nry~ to the Gencral Plan or Zoning Code. 3. Granting of the time extension would not be cont~raury to ~ original reasons for the granting of the change of zone. _ 4. The time extension granted shall be for a period not to exceed the period ' originally granted for performance ~i.e., a condition to be performed within one year may be extended for up to one additional year). v. Should. any of the conditions not be met or substantially complied with in a timely fashion, the Director may initiate rezoning of the subject property to its original or more appropriate designation. SECTION 3. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 4. This ordinance shall take effect upon its approval. Ir1TR0DUCED BY: . l.~ CIL MfEMBER, COUNTY OF HAWAII Hilo, Hawaii • Date of Introduction: June 18, 1997 Date of 1 st Reading:- June 18, 1997 Date of 2nd Reading: July 2, 1997 . Effective Date: July 14 , 1997 APPROVED AS TO FORM AND LEGALITY CORPORATION COUNSEL 7 DATED. •lo- . ~ f y ~ r A•20, ~ A•Z0~ A•1• A • j r ~G - ~ ~ tia a ~ '~~y g - - 1 A • 7r A ~~r A•~, A 3. A• zo. a ~ A S, ~ A • ~r ~ A-S, ~ A. S, A'~' ~ L A•~r ~ A-~. A•S• A ~a ~ A•Sr A.9r 1~ ' A•1r 0~ A•fr A•4r ~ A•~. Ir A•~r A•!• A•~' A-Sr • A • Sr A A'1. AKONI PULE HIGHWAY To ~owi Kowoih D~ a53, ~ 09.73 N Rµ 375,.771.74E s r ~ "HawAll STATE DIANE COORDINATE SYSTEM. A ' s • ZONE - ~-s. ~-s, AGRICULTURAL ~A-Sa~ TO SINGLE FAMILY RESIDENTIAL RS-15 AREA: 37.880 ACRES AMENDING SECTION 25-8-7'NORTH AND SOUTH KOHALA DISTRICTS ZONE MAP} ARTICLE 8, CHAPTER 25 ZONING CODE} Of THE HAWAII COUNTY CODE, BY CHANGING THE DISTRICT CCASSIf ICATlON ~ f ROM AGRICULTURAL. ~A-So} TO SINGLE f AMILY RESIDENTIAL SRS-15} AT KAHUA 1ST, NORTH KAHALA, HAWAII. PREPARED 8Y :PLANNING DEPARTMENT COUNTY OF HAWAII TMK ~-9-01:8 APRIL 24, 1997 EXHI~lT "A" (cEHt~?-PACIFlC.LTD.) 1 . OFFICE OF THE COUNTY CLERK , - County of Hawaii " ' Hilo . • ? : _ . _ Hawali ..~~1 d ~ o (DRAFT' 2 ,Yo,I.~:,. • Introduced Bv: y Jean Leithead-Todd f B/ R 1 AYES NOES AB S EX I1atc Introduced: June 18, 199? Arakaki X First Reading: dune 18;._1997_ Chun X Publisltcd: _Juae 25. 1997 Lcithcad-Todd X _ Ray RE1!?ARKS: Reynolds Santangelo X Smith X T la X Ya on X 9 0 0 0 Second Re~iin : ROLL CALL VOTE. g July 2, 1997 To Mawr: July 7, 1997 AYES NOES ABS EX Returned: .July 15, 1997 ~ X Effective: July 14 , 1997 Chung Published: July 22, 1997 Leithcad-Todd Ray X R~1tARKS: Reynolds X Santangelo X Smith X Tyler ~ • X Yagong X 1 D0 HEREBY CE~~~ e r ing BILL was adopted by the County Council and published as . R~ d ~ ~8 r,idreated abQVe. CEPUTY CQRPOIt~t10N COUNSEL COt1NTY Cif NAW A f t Do?e ~ ~ppm ~eEl/D~m~~rd this da~~ C UJ1'CIL CNAIRMAIU • ~ vt 19 CDU,NTY CLERK - ~ L ICJ ~ ` ~ ~ ~ i 9 6 I Draf t } .tl.-tYOR. C~ U.NT}~ 0~';NAt~'All Bill No.: 3 Reference: C-330.01/PC-61 Ord , J _ _ ,.c ww<..... _y.w>wuW.+vr ~ _~..~u. _~.d dY~ ~ ....r..:titiY~Ywsirav!....... t~ ~ M • Stephen K. Yamashiro •,a Mayor ~ - . OF N tt? ~ ~ ~ii PLANfI~IING COINfMISSION 2S Aupnni Street, Room 109 ~ ~Clo, N~rv,?ii 96720.4252 - (808) 9bl•8288 Fix (808) 961.9615 ' CERTIFIED NAIL Z o95 323 973 - ~~~~l~ 2 J 19~i Mr. Sidney M. Fuke loo Pauahi Street, Suite 212 Hilo, HI 9720 Dear Mr. Fuke: Special Management Area Use Permit Application (SMA 97-1} Request: Establish a 50-Lot Single Family Residential Subdivision aml Related Improvements Applicant: Gentry Pacific, Ltd. - T.~ T!~ Planning Commission at its duly held public hearing on August 8, 1997, voted to approve the above-referenced application. Special Management Area Use (SMA) Permit No. 379 is l~reby issued to develop a So-1ot single family residential subdivision and related improvements on approximately 37.88 acres of land. The property is located on the rnakai side of Akoni Pule Highway directly across the entrance to Kohala Ranch at Kahua 1st, North Kohala, Hawaii. Approval of this request is ba~~ed on the following: - ~ - The purpose of Chapter 205A, Hawaii Revised Statutes (f1P;S) and Special Management Area Rules and Regulations of the County of Hawaii, is to preserve, protect, and where possible, to restore the natural resources of the coastal zone areas. Tl~refore, special controls on development within an area along the shoreline are necessary to avoid permanent loss of valuable resources and the foreclosure of management options. The development will not have any significant adverse environmental or ecological effect, except as such adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interest. Such adverse effect shall include, but not be limited to, the potential cumulative impact of individual develo ments, each one of which taken in itself might not have a substantial p • adverse effect and el~na~on of planning options. The proposed development is located m:akai of Akoni-Pule Highway. The proposed plan calls for a So-lot residential subdivision. The Tots would vary in size between 15,OOO square feet to I + acre. Each lot would be configured in a manner so as to take advantage of the natural terrain of the , site. Rather than grading the entire site and reshaping the existing terrain, every reasonable construction effort would be made to make the project conform to the ~ ~ s y Mr. Sidney M. Fuke Page 2 natural environment. That design principle accounts for the lot size variation. There will be design guidelines to restrict structures to certain sizes, building pads, envelopes, colors, materials and to minimize the maukal~i viewplane impacts from the highway. There would also be restrictive covenants, including a "no oh~ana" . provision. All interior roads would be constructed in a manner meeting with the requirements of the County of .Hawaii. The roads will be designed and constructed in a manner to address drainage concerns. The roads are not intended to be dedicated to the County. Provisions fora 10-foot wide public access to and along the shoreline will also be made. Teptative plans call for. a 4-stall public parking area at the south end of the property. There will also be lateral access along the length of the subject parcel. . Therefore, although there will be a ~ution of open space and alteration of the existing coastal viewplane, the project as proposed would have no adverse impact to recreational and visual resources, access to and along the shoreline nor coastal ecosystems. The property is presently overgrown. Fauna consists of introduced species of birds and mammal ,pests . No endemic birds were recorded on the property, although short-eared owl or Pueo and the endangered Hawaiian Hawk or ' Io may on rare occasions be seen in this area. Three Pacific Golden Plover were recorded during the survey. Although none were observed during the survey, the Ruddy Turnstone and the wandering Tattler may also occur along the shoreline. Feral observed on the project site include Indian mongoose. Cat tracks were also fouml. A botanical survey was comlucted by Char and Associates. The excessively drained, extremely stony soils support thick mats of buffel grass and scattered trees of . kiawe. ~ A total of only 29 plant species were found ch~ring the Meld studies. Of the plant species, 24 are introduced or alien species and 5 are native. Of the natives, 4 are indigenous and 1 is endemic. The native plants are: pili grass, pau o Hi'iaka, 'ilima, . alma, and 'uhaioa. Nom of the plants which were inventoried are listed as threatened and endangered species. The proposed development would not impact the immediate adjacent properties as the subject property is surrownded by Kohala Estates, Kohala Ranch and Kohala By The Sea which are situated mauka of the property and the Akoni Pule Highway. These large agricultural lot subdivisions range in size from 1 and 3 acres to 20+ acres and were developed over the past 20 years. ~Kohala waterfiront Joint Venture is located southeast of the subject property. Kohala waterfront Joint Venture was granted an amendment to SMA Use Permit No. 212 for the construction of a 50 lot single family residential subdivision, zoned Multiple Family Residential-4,000 square foot (It1VI-4). Property to the northwest is owned by the State of Hawaii. It is currently vacant. The proposed development is consistent with the objectives and policies as provided. by Chapter 2a5A, HRS, and Special Management Area guidelines contained . in Rule No. 9 of the Planning Commission Rules of .Practice and Procedure. Portions of the ro rty along the coastline are located within Zone VE-9, a coastal h<~zard area . P l~ with a flood elevation of Hole feet. Other portions of the property along the highway are within Zone X, outside of the 500-year flood plain. The hydrological features and a Mr. Sidney M. Fuke Page 3 characteristics of the site are typical of the West Hawaii and North Kohala Region. The mean annual rainfall is approximately 10 inches per year. Twenty percent of the annual rainfall occurs during the month of January. The evaporation rate for the area is one of the highest in the State. Although there are no perennial streitms or surface water features on the site, seven major drainageways carry a large volume of water from the mauka watershed to the ocean during rare prolonged rainy periods. The shoreline is rocky and exposed to the surf and wave action from the open ocean. The project area is within the Kohala Hydrographic area (Hawaii Resources Regional Study Team, 1979). A study conducted by Charles L. Murdoch and Richard E. Green assesses the potential impact of fertilizes and pesticides on the proposed project. The stud concluded that there is . Y no reason to expect any significant adverse impact of chemicals on the quality of the shoreli~ water. The study also added that "Given the likely brackish condition of the groundwater at the project location, there will be no significant negative impact on the groundwater aquifer even if small quantities of chemicals are leached to the water . table. The ground water discharges into the ocean and will be subsequently mixed with seawater, as is the c~ise with runoff. " Therefore, as a condition of a royal the PP Department of Public works recommends a drainage system be performed to ensure adequate drainage easements through the proposed subdivision. The Department of Health requires that if there is any type of process wastewater discharge from the project into State waters the applicant may be required to apply for an individual NPDES permit. The applicant has stated that they will file a Notice of Intent for a NPDES permit. Any potentiaal. runoff or discharge which could reach ocean waters can be handled by on site improvements. Any impacts from soil erosion aixi runoff d~iring site preparation and construction phases can be adequately mitigated through compliance with existing regulations. V~ith these precautionary in place, the proposed development is not anticipated to have any substantial adverse effects on the coastal resources or environment. An archaeological inventory survey was conducted on the. subject property by Paul H. Rosendahl Inc. The original survey report was revised pursuant to comments received from the State Department of Land and Natural Resources, State Historic Fireservation Division (DLNR-SHPD),dated June 16, 1993,. January 11,1994 and Ja~iu,ary 20,1995. The survey identified 68 sites consisting of 177 discrete features within the two parcels. It app~;ars that there are at least 40 sites on the subject parcel. Fifty two (52) of the 68 sites identified were assessed as significant solely for information content. Of the 52 sites, 8 sites were deemed "no further work required" while the other 44 required further data collection. Five (5) of the remaining 16 sites were assessed as "significant for information content and as provisionally significant for cultural value, pending further data collection. " Further data collection and provisional preservation "as is" are recommended and will be conducted. Four sites were assessed as significant for information content and as excellent examples of site types and for cultural value. These sites are recommended for further data collection . followed by preservation within interpretive development. The remaining site is assessed as significant for information and content and.cuitural value (Site 15261, trail). Normally trails require preservation, however, the integrity of site 15261 is poor, as the trail is discontinuous and heavily eroded. No further work was recommended for the trail. Four sites have been identified as containing human burials :A Mr. Sidney M. Fuke Page 4 (site 2491, 4004, 4013, 16130}: Five sites (2493, 16126,16127, 16136, 16162} require further data collection. The preparation of a historic preservation plan and the establishment of buffer zones, interim protection measures and remaining archaeological data recovery still needs to be completed. Therefore, a condition of approval will be included stating that the applicant fully implement the approved historic preservation plan prior to securing Final Subdivision Approval. of the proposed development. The implementation of this mitigation. plan will satisfy the SMA objec~ve to "Protect, preserve and. where desirable restore significant historic and cultural resources. " The proposed development is consistent with the County General Plan, and . Zoning Cade. The. praposed project does conform to the General Plan Land Use Pattern Allocation. Guide (LUPAG) Map, which designates this area for Low Densi . Urban. Low Density designation refers to single family residential m character, ancillary community and public uses and convenience t~~pe commercial uses . This designation does not refer to density limitations however, this designation generally has been at a density of 4 units per acre. The average density relating to the proposed request (50 lots over 38 + acres) would amount to 1.5 units per acre. Therefore, it is determined that the request is consistent with the urban form depicted on the LUPAG Map for this area of North Kohala. The applicant's proposal ~is a single family residential ~ivisian. It is inclose proximity to a SO-lot subdivision called Kabala waterfront Joint Venture zoned Multiple Family. Residential-4,000 square foot (It1VI-4). The proposed reclassi~icatian . is for a single family residential land use designation. . The visual impacts along the coastal view plane and open space of the development will be somewhat diminished as the site is located ~i of the Akoni-Pule Highway. To mitigate these concerns there will be design guidelines to ensure that the project, when fully developed will only minimally affect coastal viewplanes. Coven~ints will be developed to restrict structures to certain sizes, building pads, envelopes, colors, materials. etc. to minimize maukai~aakai viewplane impacts from the highway, as well as to minimize excessive. alteration of the area's natural terrain. The potential for retaining the regional vistas will still exist. Mindful of the type of service the applicant will provide to the residents of North Kabala, the proposed use will compliment the following goals, policies and standards of the Lam Use and Residential Elements of the General Plan: o Designate and allocate land uses in appropriate proportions and mix and in keeping with the social, cultural and physical environments of the County. o The county shall encourage the development and maintenance of communities . meeting the needs of its residents in balance with the physical and social environment. o To maximize choices of single-family residential lots and/or housing for residents of the County. i Mr. Sidney M. Fuke Page 5 o To ensure compatible uses within and adjacent to single-family residential .zoned areas. o To provide single-family residential areas conveniently located to public and private services, shopping, other community activities and convenient access to employment centers . . o Areas shall have basic improvements and amenities necessary for immediate use. ~ . The proposed request would also complement the following Housing Element goals and policies by creating a mix of residential housing opportunities, maintaining a housing supply that allows a variety of choice and by providing housing units geared toward the middle income bracket. o Attain safe, sanitary and livable housing for the residents of the County of Hawau. . o Attain a diversity of soca-economic housing mix throughout the different parts of the County. o Maintain a housing supply which allows a variety of choice. o .Develop better places to live in Hawaii County by creating viable communities with decent housing and suitable living environments for our people. o Improve ark maintain the quality and affordability of the. existing housing stock. o .Seek sufficient production of new affordable rental and fee-simple housing in the County in a variety of sizes to satisfactorily accommodate the needs and desires of families and individuals. o Erasure that housing is available to all persons regardless of age, sex, marital status, ethnic background a~xi income The proposed use would also conform to the following goals and policies of the Economic Element: o Provide residents with opportu~itfies to improve their quality of life. a ~ Economic development and improvement shall be in balance with the physical and social environments of the island of Hawaii. o The County of Hawaii shall strive for diversification of its economy by strengthening existing industries and attracting new endeavors. Based on the above f findings, it is determined that the proposed development will not have any substantial adverse impacts on the surrounding area, nor will its approval be contrary to the. objectives and policies of Chapter 205A, HRS, relating to .m ,ur_w.. ~.w..+uwr~a~».new uu..~._.u..-~,~v..+Y+.,::~,:. v...n~ _ ~ w. _ _._Y~ Y~:'ic ~ 0 Mr. Sidney M. Fuke Page b Coastal Zone Management and Rule No. 9 of the Planning Commission relating to the Special Management Area. Approval of this request is subject to the following conditions. Should any of the foregoing conditions not be met or substantially complied with in a timely fashion, the Planning Director may Initiate procedures to revoke the Special Management Area Major Use Permit. 1. The applicant, its successors or assigns shall be responsible for complying with all of the stated conditions of approval. 2. The effective date of this Special Management Area Use Permit shall be the effective date of the Change of Zoe ordinance. 3. The applicant, its successors or assigns shall be responsible far complying with all of the conditions of approval of the .Change of Zone ordinance. 4. Final Subdivision Approval of the proposed residential subdivision shall be secured from the Planning Director within eve (5} years from the effective date of this permit. 5. All above ground structures shall be set back a minimum of SO feet from the front property line along Akoni Pale Highway. b. A pre ' site plan shall be redesigned in order to create m~~ka m~akai view corridors from Akoni Pale Highway and shall be submitted in conju~tion with the subdivision plans. Such plan shall meet with the approval of the Planning . Department. 7. ~A mauka-~i road access of sufl"icient width to accommodate vehicle access 24 hours a day for drop off and pick up shall be provided, along with the munlmum to-foot wide lateral public access walkway along the shoreline. The ty~ of improvements and specific location of the walkway shall be determined at the time of subdivision approval review.. Further, a minimum of four on-site public parking stalls.to serve the walkway shall be provided and clearly identified. A shoreline setback variance shall be secured for any Improvements to the public access which will be within the 40-foot shoreline setback area. Construction of the public walkway ark parking stalls shall be completed prior to issuance of any building pernut far any structures. 8. The applicant shall develop and submit a comprehensive public a~rcess plan for the subject property for review and approval to the Planning Director, in . consultation with the Department of Land and Natural. Resources (Na Ala Hele Trails Program}, in conjunction with Final Subdivision Approval. The public . access plan shall provide for mauka-m.akai and lateral shoreline pedestrian . accessways, public parking stalls for users of the shoreline area, signage and restrictions on use (If any}. Such public access Improvements shall be completed prior to Final Subdivision Approval for any portion of the subject property. Mr. Sidney M. Puke Page 7 9. A drainage study of the project site shall be prepared for review and approval by the Department of Public'~Vorks, in conjunction with submittal of plans for subdivision review. Drainage improvements shall be constructed or bonded in a manner meeting with the approval of the Department of Public Works prior to the issuance of Final Subdivision Approval. I0. ~ A Data Recovery Plan and Preservation Plan shall be prepared for the revieur and approval by the Planning Director in consultation with the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD). Proposed mitigation treatment (preservation in place or disinternment/reinternment} for burial sites must be approved by the Historic Preservation Division's Hawaii Island Burial Council before detailed mitigation plans are finalized for these sites.. A copy of the approved Final Data Recovery Plan and Preservation Plan shall be submitted to the Planning Director for its files prior to submitting plans for subdivision review and prior to any approval for any land alteration permits. lI. Should any remains of historic sites, such as rock walls, terraces, platforms, . m~ shell concentrations or human burials, be encountered, work in the immediate area shall cease and the Department of Land and Natural Resources-Historic Preservation Division (DLNR HPD} sha11 be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DL[V'R-HPD when it finds that sufficient mitigative measures have been t~~ken. 12. Comply with applicable laws, rules, regulations and requirements of other . affected agencies for approval of the proposed development within the subject property, including the Department of Health. 13. An initial extension of time for the performance of conditions within the permit may be granted by the Planning Director upon the following circumstances: A. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicants, its successors or assigns, and that are not the result of their fault or negligence. B. Granting of the time extension would not be contrary to the General Plan or Zoning Code. C. Granting of the time extension would not be contrary to the original reasons for the granting of this permit. D. The time extension granted., shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year). 14. Restrictive covenants in the deeds of all proposed residential lots within the subject pro~rty shall prohibit Bed and Breakfasts on each lot. A copy of the proposed covenants to be recorded with the Bureau of Conveyances shall be submitted with the plans for subdivision to the Planning Director for review and Mr. Sidney M. Fuke Page 8 approval. A copy, of the approved covenants} shall be recited in an insent executed by the applicant and the County and recorded with the Bureau of Conveyances in conjunction with the issuance of Final Subdivision Approval. This approval does not, however, sanction the specific plans submitted with the application as they may be subject to change given specific code and regulatory requirements of the affected agencies. Should you have any questions, please feel free to contact. Alice Kawaha or Susan Gagorik of the Planning Depar~nent at 961-8288. Sincerely, 4~~ Kevin M. Ba1og, Chairman Pia~nning Commission LGentrOl.PC ce: Department of Pudic Works . Department of Water Supply . County Real Property Tax Division west Hawaii Office Office ~af State Planning, CZM Program. (wBackground} . Depart~xfi Went of I and Natural Resources Kazu Hayashida, Director/DOT-Highways, Honolulu Department of Health Mr. Joseph Fadrowsky, III EFFECTIVE DATE ; : ~ ~ ~y~~ ' ~ , • W ~ • 1 Stephl~l K. Ya~nss~U[V ~ • Ma~ror _ . •..r• 4~ OF M~' ~ ~~tt p~~rnv~G cossior~ 2S Aup~i Shat, Room 109 ~ Hilo, Htw:ii 96720.4252. . {808) 961.8288 Fuc {808 961.9615 CERTIFIED MAIL Z 095 323 937 2 b 1997 Mr. Sidney M. Fake I00 Pauahi Street, Suite 212 Hilo, HI 96720 . Dear Mr. Fuke: ~ . Special lVl[anagement Area Use Permit Application (SMA 97-1) Request: Establish a 50-Lot Single Family Residential Subdivision and Related Improvements Applicant: Gentry-Pacific, Ltd. - . T.ax ~.i~~,~:.~:.2:1:8 Please refer to the Ply Commission's October 21,1997, letter to you informing you of the Commission's decision to approve the above application with conditions. Through an oversight, Condition 8 did not include the concern raised to address the American Disabilities Act. Therefore, Condition 8 is hereby amended to read as follows: "1. The applicant shall develop and submit a comprehensive public access plan for the subject property for review and approval to the Ply Director, in consultation with the Department of Land and Natural Resources (Na Ala Hele Trails Program), in conjunction with Final Subdivision Approval. The puj sic aG~ess plan shall provide for m~aka-miakai and lateral shoreline pedestrian accessways, public parking stabs for users of the shoreline area, signage and restrictions on use (if any). At least one parking sta11 . ~ to accommodate persons with disabilities shall be placed within a reasonable distance to the 10-foot wide lateral shoreline access. Such public aurcess improvements shall ~ completed prior to Final Subdivision Approval for any portion of the subject property. " ~ ~R r Mr. Sidney M. Fuke _ . Page 2 Should you have any questions, please feel free to contact Alice Kawaha or Susan Oagorik of the Planning Department at 961-8288. Sincerely, Kevin M. Balog, Cha' Planning Commission Lgentr02.PC cc: Department of Public Works Department of Water Supply County Real Property Tax Division ~ . West Hawaii Office Office of State Planning, CZM Program . Department of Land and Natural Resources Kazu Hayashida, Director/DOT-Highways, Honolulu . Department of Health Mr. Joseph Fadrowsky, III 1 ~~d OF p • ' ~ ~ ~~j~%1 Stephen K. Yameshito .+r . . '1~`'oP •~p~i? 3 7~ ~ PLANNING COMMISSION ~s sue, n~? io9 • ~b, x~M?.~~ 967w~asa . ~96I.8288 Fix (808} 961.961 s CERTIFIED MAIL Z 095 323 924 d ~ Mr. Sidney M. Fuke 100 Pauahi Street, Suite 212 Hilo, HI 96720 Dear Mr. Fuke: . S ecial Management Area Use Permit Application ~SMA 97-1 } P Request: Establish a 50-Lot Single Family Residential Subdrv~s~on and Related Improvements Applicant: Gentry-Pacific, Ltd. Tax Man Kev: ~ 5-9-1: 8 Please be informed that we are rescinding our August 26, 1997 letter to you as it was in error. Vie apologize for any inconvenience this may have caused you. Please refer tQ the P~ Commission's August 20, 1997, letter informing you of the Commission's decision to approve the above application with conditions. Condition 7 has been amended to include the concern raised to address the American Disabilities Act. Therefore, the following are the conditions to SMA Use Permit No. 379: 1. 'The applicant, its successors or assigns shall be responsible for complying with all of the stated conditions of approval. 2. The effective date of this Special Management Area Use Permit shall be the effective date of the Change of Zone ordinance. 3. The applicant, its suGressors or assigns shall be responsible for complying with ail of the conditions of approval of the Change of Zone ordiinance. 4. Final Subdivision Approval of the proposed residential subdivision shall be secured from the Planning Director within five (5} years from the effective date of this permit. 5. Ail above ground. structures shall beset back a minimum of SO feet ~fram the front property line along Akoni Pule Highway. 6. A preliminary site plan shall be redesigned in order to create mauka-makai view corridors from Akoni Pule Highway and shall be submitted in conjunction with 4:~ _ -N fl Ili . a 3 Mr. Sidney M. Fuke Page 2 the subdivision plans. Such plan shall meet with the a royal of the P PP latinirig Department. 7: ~ A mauka-makai road access of sufficient width to accommodate ve hide access 24 hours a day for drop off and pick up shall be provided, alon with the muumum 10- g . foot wide lateral public access walkway along the shoreline. The type of improvements and specific location of the walkway shall be determined at the tune of subdivision approval review. Further, a .minimum of four on-site public parking stalls to serve the wa~,~vay, one of which shall be to . accommodate persons with disabilities. and located reasonably close to the lateral shoreline access, shall be provided and clearly identified. A shoreline setback variance shall be secured for any improvements to the public access which will be within the 40-foot shoreline setback area. Construction of the ublic walkwa and ar ' s P . y p kmg falls shall be completed prior to issuEance of any buildin rinit for an structures. g Pe Y 8. The applicant shall develop amt submit a co rehensive u mp p blic access plan for the subject property for review and approval to the Plaruiing Director, in consultation with the Deparanent of Land and .Natural Resources (Na Ala Hele . Trails Program}, in conjunction with Final Subdivision Approval. The ublic acs lan shall rovide for - •p P P mauka makai and lateral shorelirice pedestrian . a~rcessways, public parking stalls for users of the shoreline area, signage and restrictions on use (if any}. 9. A drainage study of the project site shall be prepared far review and a royal b the De ent of Public PP y • . , partm works, m conjunction with submittal of plans for subdivision review. Drainage improvements shall be constructed or bonded in a manner meeting with the approval of the Department of Public works prior to the isstiia~e of Final Subdivision Approval.. I d. A Data Recovery Plan and Preservation Plan. shall be re ared for the review 'and a P • P pprovai by the Plaiirung Director m consultation with the Department of Land arat Natural Resources-Historic Preservation Division (DLNR-HPD . ) Proposed mitigation treatment. (preservation ui place or disinternment/reinte nt} for burial sites must be a roust b the Histori • PP y c Preserva~an Division s awaii Island Burial Council before detailed miti ation ions are for these site g P s. A copy of the approved Final Data Recovery Plan and Preservation Plan shall be submitted to the Planning Director for its files prior to submitting plans for subdivision review and prior to any a .royal for an land alteration rmits. ~ Y pe 11. Should any remains of historic sites, such as rock walls, terraces, latforms P• nlariiice shell concentrations or human burials, be encountered, work .in the immediate area shall cease and the De artment of Land and Natur . P al Resources-Historic Preservation Division (DLNR-HPD) shall be imn~ediatel notified. Subse went. works y q .hall proceed upon an archaeological clearance from the DLNR-HPD when it finds that sufficient mitigative measures have been taken. Mr. Sidney NI. Fuke Page 3 12. Comply with applicable laws, rules, regulations and requirements of other affected agencies for approval of the proposed development within the subject property, including the Department of Health, 13. An initial extension of time for the performance of conditions within the ermit . p may be granted by the Planning Director upon the following circumstances: A. The non-performance is the result of conditions that could not have been foro~een or are beyond the control of the applicants, its succe~~~ors or assigns, and that are not the result of their fault or negligence. B.. Granting of the time extension would not be contrary to the General Plan or Zoning Code. C. Granting of the time extension would not be contrary to the original reasons for the granting of this permit. D. The time extension granted shall be for a period not to exceed the period . originally granted for performance (i.e., a condition to ~ performed within one year may be extended for up to one addrtlonal year). I4. Restrictive covenants in the deeds of all proposed residential lots within the subject property shall prohibit Bed and Bre;~kfasts on each lot. A copy of the proposed covenants to be recorded with the Bureau of Conveyances shall be submitted with the plans for subd~v~s~on to the Plar~ng Director for review and approval. A copy of the approved covenant(s) shall . be recited in an instrument executed by the applicant and the County and recorded ,with the Bureau of Conveyances in conjunction with the issuance of Final Subdivision Approval. This approval does not, however, sanction the specific plans submitted with the application as . they may be subject to change given specific code and regulatory requirements of the affected agencies. Should you have any questions, please feel free. to contact Alice Kawaha or Susan Gagorik of the Planning Department at 961-8288. . Sincerely, Sevin M. Balog, Clhair . Planning Commission ec: Department of Public Works Department of water Supply - County Real Property Tax Division west Hawaii Office Office of State Planning, CZM Program Department of Land and Natural Resources Kazu Hayashida, Director/DOT-Highways, Honolulu Department of Health Mr. Joseph Fadrowsky, III _ _ . 3 SIdf1~ FUke, Planning Consultant y 1 ~ Pauahi Street, Suite 212 • Hilo, Hawaii 96720 ~ ~ • Planning • Variance • Zoning Telephone: (808) 9fi9-1522 • Fax: (808} 969-?99fi ~ r • Subdivision • land Use Permits w tnvi ent I Reports r ~ _ r F; a , i ~ ~ ~ ~ f ~ Iuly 9,1998 ~ ~ ~ Ms. V~ginia Goldstein, I?irector Ply Department COUNTY Ol~ fIAw~II 25 Aupun street I~Io, Hawaii 96720 Dear Ms. Goldstein: Subject:.. Annum Report Req~rem~nt -Geary Pacific, Ltd. ~tezonin~ Qrdinee No, 97-142 Tlt! 5-9-1 8 The subject property was rezoned intothe ItS- ~ S district on Jul 14 ~ g97. condition Y T of r~lced ordna~ace required the submittar of ao a.~~n~ual r. ort. This t rt is thus submitted in fu~~rnent of that condition: Subsequent to the effective date of the subject ordinance, the applicant has taken steps to develop the site in a timely fashion. The following were accomplished burin this g P a. A SI~tA ~Tse Permit (~~A 37g) for the proposed develo~d was anted b ~ Y the P~ Commission on August 5,1997 b. Purs~~a~t o Condition L relate to housing,; an eem~nt -.was reached with the County ice of Housing and .Community De~elo vent::. QHCD . It is p ~ oUr understanding that OECD informed your once of the a _ licant's Fp ~~illment of tl~s condition. Enclosed is a copy of my letter of March 2, .1998 to the OHCD with the executed agreement for your records; and c. T'he archaeolo 'cal in~ento curve was rove b the State DLNR-HPD ~ ~ y p y on Juke 8 I ~8. A copy is attached far your records. As you know,: an approved report i~ needy. before a Data Recovery Plan and Preser~tion :Plan can be prepared, as required by Condition we -are now in the rocess of P soliciting proposals from various consulting archaealo 'sts to ' lenient this condition. It is anticipated that selection of a consultant-and work on this component would begin later-this year. ~e t P~~a~r~~~g ~ ~~i E~.~ i Ms. Virginia Goldstein, Director July 9,198 Page 2 The applicant is-aware that there are other conditions that are required to be implemented prior to receipt of final subdivision. approval.. These include the -conditions relating to c~a~~tal access, impact fees, "naohana" restrictive covenants, solid waste m~ryage~nent play, and the like. Proposals for the muster -plan and first phase engineerin g have been solicited, and this work should commence very soon. The applicant is fully aware that final subdivision approval must be secured before July 200. The applicant is working towards approval of the first phase, hopefully within. the next year.. we trust that the foregoing adequately satisfies the annual report requirement. If not or if there. are further questions, please-feel free to contact rne. Thank you very much. Sin. ely, SIDNEY . F~[JI~E Plaruning Consultant enclosures ec Mr. Joseph Fadrowsky wlo enclosures ? v } i Sidn~ ~Uke Plannin Cons I ~ g u taut 100 Pauahi Street, Suite 212 • Hilo, Hawaii 96720 ~ Planning ~ Variance ~ toning Telephone: X808) 969-1522 • Fax: (808) 969-7996 ~ Subdivision ~ Cand Use Permits Environmental Reports f March Z, 1998 Mr. Ed Taira, Assistant Housing Administrator 4ffce of Housing & Community Development COUNTY GF HAWAII 50 Wailuku Drive I~lo, HI 9b720 Dear Mr. Taira: Subject: Gentry Pacific, Ltd. - Affordable. Housing Condition Ordinance No. 97-102, T1VIK: 5-9-01: 08 Pleasefind attached a copy the agreement between Jon Gomes and Associates and Cn~ntry Pacific, Ltd. regarding the subject matter. This agreement, as you are aware, was requested by your office. A drab was approved by your office, and this agreement has not been changed. We trust that everJ;~hing is in order for your informing the County Plar~ ent that this condition has been satisfied. If not ar if there are further questions, .please feel free to contact me. Th~~nk you very much. S' caret , SIDNEY M. ~ Planning Consultant enclosure cc Mr. Jon Gomes w1 enclosure Mr. Joseph Fadrawsky, IIII, Gentry-Pacific, Ltd.. . - , _..~.ffe,~~ _ f 't r A.~REEi1~ENT THIS AGREEMENT, made this ~ day of a 1998, by and between GENTRY PACIFIC, LTD., a Hawaii Limited Partnei-shi , whos business address p is P.O. Box 295, Honolulu, Hawaii 96809 (hereinafter "Gentry") and JON DOMES AND ASSOCIATES, INCORPORATED, a Hawaii Corporation, whose business address is 2~5 Nene Street, Hilo, Hawaii 96720 (hereinafter "comes"), w~!'~~~: AS, Gentry is the owner of that certain real property situated at Kahua 1st, North Kohala, Island and County of Hawaii, designated by State of Hawau Tax ~Ia Ke p Y No: (3} 5-9-01:08 (hereinafter, the "Property"), which Gentry intends to develo into a 50-lot p residential subdivision; and i~4'HEREAS, County of Hawaii Ordinance No. 97-102 (hereinafter, the "Ordinance" which b~rcame effective on July 14,1997, rezoned the Property from Agricultural A-Sa to . ( ) Single-Family Residential (1?;S-15) subject to conditions; and ~~~tEAS, Condition L of the Ordinance requires the applicant (Gentry) to "secure the concurrence of the Offtce of Housing and Community Development (hereinafter, the "OHCD") that the applicant's affordable housing requirements, if any, have been mutuall . y agreed to pnor to Fuial Subdivision Approval ,and wHE]~EAS, Gentry's affordable housing requirement is ten percent (I 0%) of the total lots or five (~}units, based on the proposed ~0-lot subdivision; and U~?~REAS, comes has developed a 56-unit affordable housing project identified as I~alaoa View Estates Sub~i ~~ision arld identified by T~viK: (3 } 7-3 -~3 : 1- 48, ~ 8 - 65, and has agreed to transfer five ~5) housing credits from this project to Gent for an undisclosed ry amount of funds; and wHE;REAS, the OHCD, in a January 13,1998 letter to Sidney Fuke, Gentry's Planning Consultant, approved the transfer of housing credits from comes' Kalaoa View Estates affordable housing project tv satisfy Condition L of the Ordinance, with a condition that an agreement stating the terms of the transfer be submitted to the OHCD~ NOw, THEREFORE, it is agreed by and between the parties hereto that: 1. Domes agrees to take all steps necessary to transfer five (5} credits from its Kaiaoa View Estates affordable housing project to Gentry to satisfy the requirements of Condition L of the Ordinance. R O Z. Gentry agrees to fully compensate Gomes for these housing credits at b a previously agreed-upon value within thirty (3 0} calendar da s of recei t of final Y p approval of this transfer by the County andlor OHCD. IN WITNESS UV~EREOF, the parties hereto have executed this A Bement as gr of the day and year first above wntten. GENTRY PACIFIC, LTD. ~uv~r~w ~:v.~vtu.~.va~ By: seph drowsky, III Its vice-President JGN GOMES ASSQCLATES, INC. A Ha 'Corp Lion 3r Jon es Its a dent +.w„ . ~ M T - ~ ii ~ 1` ~ l.; ~fr:y1AA4lN 1. CAYL•Tr~NO ~ e ° ; , . r 'E R OF HAWAli a ~ ~eoQ ~ ~ t , ; <~aE?~~:~~~ ' ICftA$~ RPe . r: '°M,3 ~;.,~?RO o~5 ' AHa T ~ AE v'RCEs l~ r ~ •."i' ~tl .»r,,. ,a ~)•t,ti7'' aEPV rill 9 ~ j f. ~ :v r 1 : ; y r . ~ ~ J~ , a1C8ERT COt0I~1A-AGARA~ ADUACULTURE DEVELOPMENT _ PROGRAIN STATE OF HAWAII AouA11c R~sauAC€s DEPARTMENT OF LAND AND NATURAL RESOURCES - = CONSEAVATlON Ah0 RESOURCES ENFORCEJ~tENT STATL HISTORIC PflESERVATION DIVISION CONVEYANCES 33 SOU1'}i K1NG STREET, 6Th FLOOR FORESTRY AND YVIlOUFE HONOLULU, HAWAII 96813 HISTORIC PRESFAVATtON DIVISION L~,JVO DIVISION STATE PARKS WATER AND LAND aEVELOPMFNf June 8. 1998 Dr. Paul Rosendahl L . ~ ~ r aGN~}. ~1~68 PHRI DO ~ ~ ~ , C 1~~. 980~P~~,1 20~ ~aianuenue ~=avenue I-fiio, Hawaii 967? 0 Dear Dr. Rosendahl: SUBJECT: =~th Revised Draft Report (PHRI 102=1-033198): ".~,rchaeoloa~ b caI Inventory Survey Kahua l~Iakai/Kahua Shores Coastal Parcels" (Graves and Franklin 1998 Kahua 1 and 2 and Waika,lVorth Kohala, ~[awaii Island T1YIK: 5-9-01: i and 8 Thank you for your letter of iVlarch 27, 1998, v~rhich submitted this revised re o p rt. The re~~slons were made to address the comments in r~ur review letter of Jul - 5, 1996 on the thir ~ d draft. We now find the report to be acceptable. We believe that the archaeological inventory survey of the route 103 acre ro~ect ~y p ~ area was adequate,. finding a total of 68 sites. These sites reflect a mixture of ermanent . p hab~tatlons (several with household shnnes}, temporary habitations, a few burials twos brines near the shore, and a number of agricultural features. The sites are now clean described and irate ret y rp ed. We concur with the significance evaluations far the 68 sites in the nroiect area. 50 ar . e significant solely for their information content. The remaining 18 sites are significant under m ultiple cntena. 1~1e also concur with the recommended mitigation treatments. N o further work is required at 8 sites, which have been adequately documented and interpreted. Thus 60 sites are to and . ~ ergo mitigation. 17 sites are to be preserved (a portion or all of each site .This inclu . ) des all the bunals and possible bunals (realizing possible burials might be tested to veri if burial fY s are actually present or not and mitigation recommendations might change if na burials are resent. in some p cases} and S permanent habitation sites and 2 shrines (the latter 7 to be rote ret rp ed for public benefit). 43 sites are committed to archaeological data recove .With these c ry omntments, we believe that adverse Impacts to the ..sites will be mitigated. y P. Rosendahl ~ ~ _ Page 2 0 The proposed mitigation commitment for the burials and possible burials needs to be submitted to the Hawaii Island Burial Council for their approval. Please contact Mr. Ka'iana Markell of our Burials Program (587-0009} to be placed on the agenda and to see what information the Counci 1 will need. To ensure that the mitigation commitments are successfully carried out, the. next step in the historic preservation review process for the sites in this project area will be to develo a Data P Recovery Plan ,a Preservation Plan, and a Burial Treatment Pian essentially scopes of work for mitigation. Once approved by our office and the County (and by the Hawaii Island Burial Council for the Burial TrPatrr~ent p1_an~, then evark on the mitigation could occur.. If you have not already done so, would you please send a copy of the final report to Marc Smith far our Hila If you have any questions please contact Patrick McCoy (587-000b}. aloha, ~ ~ !i . J DON H~BBARD, Administrator State Historic Preservation Division PM: amk e: K. Markell CC S ~ ~r~ 3 ~ L t i Si~neyFuke, Planning Consultant 100 Pauahi Street, Suite 212 • Hilo, Hawaii 96720 • Planning ~ Variance ~ Zoning Telephone: (808) 969-1522 • Fax: (808) .969-7996 • Subdivision • Land use Permits Environmental Reports July s,2oa~ . t .D a - .r Mr. Christopher Yuen, Director ~.,fr~_, Pla~g Dep~~tment Co~~r~ ol~ HAwA~I 25 Aupun Street Hilo, Hawaii 96720 Dear Mr. Yuen: Subject: Annual Report Requirement -Gentry Pacific,-Ltd.. Rezone Ordinance No. 97-I02 TMK 5-9-1.8 Condition T of the referenced orclmance required the sub~niittai of an annual re rt, -last report filed was on July 9, 1998. we apologize for this oversight .and re t spec fully request year a~~eeptance of tliiis letter to satisfy the annual. report requirement, for the current and past twa (2} years. The next report would thus be due on or before J l4 2002. Sipe last report, we would lie to note the.. following: a. The subject property was sold to I~ohala LLC ort or about Jute ~0 1999. Since its purchase, t~ new owner of the property ex~rlnned ahe~~ative uses of the ite, a scaled-down version of the SI~IA-a roved SSA PP C 379} SQ-unit smgte-fa~nu~y residential lot. subdivision.. b. In the Meantime, however, the owner has been t to sans the .various conditions of the rezoning ordinance. and SMA .use rmit. one of these include the preparation and submittal of a Site Preservation Plan and Burial Tr+eat~ent Plan to -the State Historic Preservation Division {SHPD of the } State Department of Land and Natural Resources (DLNR). These plans must be approved also by the Hawaii Island Burial. Council prior to submittal of plans for County Plan Approval or Subdivision action. The Site Preservation Plan and Burial Treatment Plan were a roved. Au Pp 17, 2000 (see attached.letter of notification, dated November 1, 2000, from Don Hl~bard, A ' 'strator of the SHPD of the State DLNR . The. approved Burial Treatna~nt Plan was im lemented on Feb 22-23 p _ ru~`Y 2001 (see attached .letter, dated Februlary 26, 2001,from-Paul H. Ros_ endahl, Ph.D. to Mr. Kai 1Vla~rkeli, A ' ' trator, Burials Pro SHPD . P~~~~in D~~ t. ~ p E~~ i ~ i~ 1 ~ 6 j s Mr. ~~opher Yuen July 5, 2001- Page 2 ~7ndersta~~dably, until these matters were ro r ~ addressed . . p ~ ~ and unplemented, it was. di~cult if not impossible for Kohaia LLC to mak e definitive plans for the property. Tow that -the pro . has been. thorau . Y mves~~gated and the location and value of all sites has been: estab ,fished,. it -will be passible for Kohala LLB to consider the poss~~ili of a further development of tbEe site consistent w~h the preservation: of s' ' ca~at histo . nc saes... Ho pef~lly such a plan could be fi~nahz~ed wahm tl~e nett year,. and the re~uhed annum report next year should provide .ou with its r© ess ~n that Y p regard. As yQU y be aware, a S1VIA Minor Permit for the site: was ' also sued for subject site an. September 15,1993. This Permit.-was far: . a re~ctent~al cornpouhd. with a principal residence, an ohana ~esldence and lateral public access ease~ent. Although the residential cc} has hot been canapleted, the lateral public access e~~sement ..roan has been ' tented. . . - . , Pa Said . t ~s already est~~bfis~hed and rceorded. c. At the same time,. ~a minv~e Bela ` s in develo ' the site e y p~ ~ forts were ..made to s~~~fY the off-site e~ec~rie pov~er uire~ents. Any easemt far ' routing the electrib power Tine: from the Kohaia Ranch Subatvision inter rani Pule sway to the prop~~ty vas acquired, the utility conr~ction was e . ' red and approval of HELCO ate. Goodfellow Bros., Ins. was selected as the co~traetor art the Notice to Proceed was 'ven on g~ I~Iarch 29, .2001 with the work to conr~ce within ten wor ' days after the date of the I~o~ce to` Proceed and completed ~ one hundred da s thereafter. . y The pro~ct ~s scheduled for completion in Aug or September of this ear... Y TThe applicant is aware. tbat there are other conditions that. m ' _ ust be anple~nted prior to receipt offinal su - ' ' ' n approval.. These include matters such: as co ' _ a;~tal access, unpa:ct fees, "~-ahana~" r~~~iietive covenants, sold waste emenf and m~~g p the,-lie. Further, tthe appliC;ant is fly aware that final su ' 'ion- royal mint be secured ~p before- July. 2002. As noted earlier, since the arehaealogical aran~eters have been establis . P hed, the appiica~t ~ m abetter position to fv~ its design of the site, Pro sots for the ni~aster Ian . - l~ p and first phase eng~er~ng have been solicited,. and this work should commence ve soon.- ' . ry When that ~s completed w.h~n the next year, the appropriate application will be filed. I d ~ 1 r y ~ ~ . Mr. Christopher Yuen July 5, 2001 Page 3 We trust that the foregoing. adequately satisfies the annual re ort re u~ement forth p q e current and past t~vo (2} years. If not or if there are further questions, .lease feel free to P contact nee. Th~~rik you very much. Sincerely, SIDNEY P~ Con~~ultant Enc~sures cc ~ahala I~LC c% Mr. J~ Wrston I . ~ . ~'AN ~ 22 ' 81 10 ~ 19AM GENT( ~!MPAN I ES 808 , 5~9 8244 P . 2~ r . 2 B~l.JANIfM J. CAYETJIl~O ~ ~Ct ~ ~ TMAOTNY E JaNNrI~ CNAp1~i0q BOV~{NOI~ Of HAW AN 1 BOAAO of two Yrp tW1TU1u?t ~50vuCE9 COMM16610~1 ON WAT7;J1 tt~llCi M~M~G~#IENT r • r OEPUI1ES ' JANET E. tUWt10 UNNEL NISNIp1U ' STATE OF HAWAlI DEPARTMENT OF LANG AND NATURAL RESOURCES AouAnc AESOURCFs BOATING AN0=OCEAN RECAEATiQN HISTORIC PRESERVATION DNtStON coNSt:RVAnoN ANo RESOURCta Kskuhthewa Busidi~, Room 566 pNFOACFMEMt 601 Kernclaia 8ouleverd coNvEY~wet:s Kapolfi, New•ii 967x7 ~ f4AESTRY ANO WIIDUFE - November 29, 2000 HrsrvRtc PaEs~AVAraN LAND STATE PARKS WATER RESOURCE MANAGEIWENT Or. Paul Rosendah{ LOG N0: ZgSgl ? . PHR{ ~ - ~ DOG NO: 0011 PM14 2x4 Waianuenue Ave. Hilo, Hawaii ~ 9F720 - ~ ~ ~~.~~j ~ . Dear Dr. Rosendahl: SUBJECT: Site Preservation Ptah Kohata Lt.G Residerrtiat Compound Project . Kahua, [North Kohala, Hawaii island TMK: 5-9-01:8 ~ . Thank you for your letter Qf November 3, 2000, which is a response to .our review letter of October 1fi, 2000 ~.og: 2fi,350; Ooc: 0010RC1 fib. Our October 16 letter indicated #hat the preservation plan for sites in the subject parcel was acceptable, except for the change from preservation with interpretive deve{oprnent to preserva~on "as is" ~.e., without any interpretive development of any lcind~ far Sites 4005, 2498, .and 2499. ~i1le requested a justifcation for the promised changes. Your leer outlines a number of reasons why the change in the preservation recommendations for the . three sites is warranted. Chief among these is a change in development plans from a subdivision to a~ sir~gie-family residence and the desire ©f the new owner for privacy. fhe res~ence will be constructed in the western portion of the parcel. ql{ of the preserve sites, including four burial sites, are located. in the eastern portion of the parcel., which v~~! remain undeveloped. Another consideration is the fact that the a~roved burial treatment plan calls for ieservation-of the four sites "as is" with no walis;~ landscaping, . orsignage. The intent is to draw as l`itt{e attention as possible to these sensitive sites, Interpretation.of .the non-:burial sites, which are {ocated in the same area as the burials, would. have the opposite effect. Final{y, ~ is .our understanding that the access road to the property will be situated in the wes#em portion of the parcel that is slated for development and that no historic sites would ~ be affected by the road construction. ~ ~ ~ ~ . The reasons you ha~we giver for the charge in th° preservation recommendations for Sites 4G05, 2498 ~ ark 2499 are acceptable. The preservation plan meets with out approval.. Aloha, ~ . ~ - ~ - ~ / . ~ , ~ ~ DON N{BEARD, Administrator State Historic Preservation Division Pl~:amk RECE~IIED OEC 1 5 20aQ FEB 28 '01 05~41PM GENTS ?MPANIES 808 599 8244 P,2i2 . _ Paul H. Rosendahi, Ph.D., Inc. A~cl?oeological • Nlstotl~ol • Cuharo! Reroc~~ce Monaeement St~dle~ d~ Services 2441IN~(anuenu~ Avenue • Hilo, N~w~ii 96120 • (908) 9i9. l 763 • fAX (801) 96 i-6941 P.O. Box 23345 • G.M.f~., Gu:m 96921 • X671) 472.3 f { 1 • FAX ~~11) 411.3 f 31 Letter 2153-0226Q1 Felbrvary Zfi,1001 I~Ir.14ai Markell Administrator, Buti~s Program . State Ffistaic Preservation Division Department of Land and Ivetural Resources Kakuhihewa Building, Roorn 555 6D114~n~okiia Boulevard ~ - ~ ~ . . Kapolei, Hawaii 96707 Sect: 8uria! Treatment Plan Kohala LLC Resideritiai Compound Project ~ ~ Land of Kahua 1 North Kohala Dis~ict . !eland of Hawaii (TMK:3~-8-01:8} . (PHRI Report 2003-04 1 1 00} ~ ~ . Dear Mr. Markell: The purpose of this letter's to in#orm your office of the implementation of the subject Buria( Treatment Plan. At its meeting of August 17, 2ao0, .the Hawsi'i island Burial Ca<ncil forrnally accepted the plan for the preservation in place at four burial sifes previ~yr identified within the Kohala 11.C Residenfial Compound Project area in the Land of K~ahua 1'~, North Kohala Distrito Island of Nawai'i {TIW11~:3.5-8-01:8}. Formal notice- of this deasion, and DLtVR roncumence, was subse~ently communicated to P!-IRl, as the applicant's representative, by letter of 1 November, 2000 from D. Hibbard, SHPD Administrator ~DOC.lV0.2fi462; LOG N0.0011 K'VN01.). Mae. specifically, PHRI carried out the folk~rir~ buria! fe;~tc~e re~staation work in accordance with the ~~proved plan: ~ ~ ~ - ~ ~ . Because onh? the western portion of the project arse wig be dev~~oped, and the ~ ~ ~ . . develor~ment wilt in no way infrir~e upon the fog identified burial settee, rto spears short- ~ . term interim preservation, measures are necessary. All burial fsatcxes, however, prior to kx~g-temp preser~?adon, shag b$ r~estoned to their ori9in~ ar~aeoio~ica! candiaon. The restoratron work should b0 basod on ~ the av~lab~ recede ~ maps, - . . ~ ~dr~awings, written d~~~criptlons, phato~aphs}. Basalt boulders and gobbles removed from the fEatures d tes~.~p wgtic wro~d be utirirred for restoration. Aq wak st't ~ done - ~dst 1~ ~upervisian of a~ q~ali~ed areha~;rkx,~st. The restot~tiort should be implemented whin 90 clays aftaer' receipt ~ the apprican! of DLNR wr~ten ronfmma~on of ~lvrai`i Island Bwisf Courial approval of the present proposed BTP ~pape 15j. ~ - ~ . _ 8wial feature restoration fiefdwak was carved out on Febru~y 22.23, 2001. A written report docum~~tir~g'the work is in preparation and wig ~be ~stlbrrii~ed as soon as it is ~camplet~ed. . ~ ~ Please contact -me at my Hilo office ~8a8-9691 lfi3) if you have any .questions, or need . additional inf~tion. r• SfRt~'ely yours, . t...~--Q - r~ Paul H. Roser~ahl, Ph.D. President and Principal Archaeologist.. cc: G.K. Wahilani; SHPD Burials Program J. Fadrnwsky; Gentry-Pacific, Ltd. ~C9 . . i - ~~,I~rJ,%, . harry ~.~t ~ T ' 0 . ' ~ ~;t~~iop~er J. ~~o~ • r~-.y p Mayor ' _ % DirectoY Roy R. Takernoto Deputy Dir ector ~ ~ ~4 PLANNING DEPARTMENT . 25 A~~uni 5~~~t, ~~om 109 s Hilo, H~~v~ii ~~72~-425 ~~083 9v1-~28~ a fax (~0~) 9~~.-~7~2 October 22, 2001 Mr. Sydney Fuke Planning Consultant 100 Pauahi Street Hilo, HI 96720 Dear NIr. Fuke: Change of Zone Ordinance No. 97-102 (REZ 866) Applicant: Koha~la LLC. (formerly Gentry-Pacific, LTD. ) Subject: Annual Progress Report Tax Ma Ke : 5-9-001:008 Thank you for your letter and attachments dated July 5, 2001, containin an annual g progress report for the proposed development incompliance with Condition T of Chan e of Zone Ordinance No.97-102. we a oI ~ g p ogize for our delay in acknowledging the . submittal of your annual progress report. Regarding approval of the Data Recovery Plan and Preservation Plan as submitted i n parkial compliance with Condition M of Ordinance No. 97-102 and Condition No. 1 0 of . SMA Permit No. 379, we note the following: a) The approval granted by the State Historic Preservation Division letter dated November 29, 2000) was predicated on the assumption that there has been a significant change in development plans for this propert from the ari 'nal rote Y gi nt to create a subdivision of 50 single-family dwellings to develo ment of one sin Ie- famil ~ p g y residence. As such, it can not be determined at this time whether the Data . Recovery and Preservation Plan, as well as the Burial Treatment Plan are acre . ptable . should the new owner decide to pursue subdivision plans that are more eaten ' save in nature. The State Historic Preservation Division will have to review the relimi p nary plat map once it is submitted, to determine whether the Data Recove and Preservation Plan and the Burial Treatment Plan, which has alread been • a J, ~ p ~ . r;_ a• _ ~~T ~ l i Mr. Sydney Fuke Planning Consultant Page 2 9 October 22, 2001 b) Full compliance with Condition M of Ordinance Na. 97-102 and Condition No. l0 of SMA Permit No. 379 needs to be demonstrated, specifically the section that states: "A copy of the approved Final Data Recovery Plan and Preservation Plan be submitted to the Planning Department prior to submitting plans for. subdivision review and prior to any approval for any land alteration permits." Again, thank you for attending to this matter. We look forward to the submittal of the next annual progress report on or before July 17, 2002. Also, please be aware that to comply with Condition C of Ordinance No. 97-102, final subdivision approval will need to be secured by July 17, 2002 as well. In the meantime, please feel free to contact Eileen O'Hora-Weir or Susan Gagorik of our office at 961-8288 should you have any questions. Sincerely, i f ~ t k~ yc~ f r{' . ~yt f !C.. ~F~ 1 ~ ~ i 3 CHRISTOPHER J. ~'U~N Planning Director EOW:cps p:lwpwin601e~teenVettersiLKohala GentryRea866 xc w/itr: Hawaii County Council . Planning Commission Planning Department -Kona _yy.. _ . y; b u =iii(.... ,,.e.. ` v ~ a 1 d Td ~ o~ o 1/° y ~~ra 0 Mayor ~ ® o ~ Christ®pher ~o ~~e~ e • .e e ~ o , hector Brad tiuroka~va, ASLA LEEDO AP DPputy Director PLANN'II~~ DEPARTMENT 101 Pauahi Street, Suite 3 ~ Hito, Hawaii 96720-3043• (808) 961-8288 0 FAX (808)961-8742 May 31, 2007 Kohala LLC 1756114' Ave SE #1 I0 Bellevue, WA 98004 Gentlemen: Change of Zone Ordinance No. 97-102 Special Management Area (SMA} Use Pernut No. 379 T]MK: 5-9-1: 8 According to the County of Hawaii Real Property Tax Division records K ohala LLC is listed as the owner of Tax Map Key: 5-9-1:8. As such, this letter is bein g sent tQ you. In 1997, Gentry Pacific, Ltd. submitted a change of zone a lication for the - pp above captioned property from an Agricultural S-acre (A-Sa} to a Sin le-Famil Res' - 1S000 g y identiai square feet (RS-1 S} district. A Special Management Area SMA Use Pe . ( ) rmit application to allow the development of a SO-lot single-famil residential s y ubdivision and related improvements was also submitted. Change of Zone Ordinance No. 97-102 was adopted b the Coup Counc' ' Y ty it with an effective date of July 14,1997, subj ect to several conditions includin C g ondition C, which states in part that "...Final Subdivision Approval of the ro ose ' p p d residential subdivision within the subject property shall be secured from the Plan ' ' Wing Director within 1"ive (5) years from the effective date of this ordinance." SMA Use Permit No. 379 was approved by the Planning Comin~ission with the same effect ive date of July 14,1997. Condition No. 4 of this permit also re aired that Final . q Subdivision Approval be secured within S years (July 14, 2002 ~ from the effective date of the permit. Ordinance Na. 97-102 and SMA Use Permit No. 379 allowed the land owner the opportunity to file a time extension to Condition C and Condition No. 4 r espectively. It has been almost ten (10} years since Ordinance No. 97- 102 and SMA Use Permit No. 379 were approved. No requests for time extension to the cited conditio ns were ~ ~ ~ ~ t, g ~ ~;~~~~i~ . , ~ j~ . HaK~ai `i Cocsnty is an E~e~al Opportunity Provider and Em to er P y a I~ohala LI~C Page 2 1~Iay 31, 2007 submitted to the Plannin De artment. Based g P on this inaction by the previous and current landowner, the Planning Director will be initiatin the rez ' g oning of the property 9 from a RS-1 S to a Res~dentlal and Agricultural S-acre RA-Sa . , ( } dlstnct. The Planning Director will also be in~tlating the revocation of SMA Use Pe ' rmrt No. 379. we will inform you as to when these matters will be brow t before the - ~ ~ ' ~ Planning Con~misslon. Should you have any uestions lease feel fre q ~ p e to contact me at (808} 961-8288 x200. Sincerely, _ ~ ~'Z CHRISTaPHER J. Yt1EN Planning Director P:wpwin601pciletters120071ord97-102 sma319 _ _ ~~..A ` o~ watFR 19 qg ~oG D~PA~~~~"`~EN.T.OF~WA~T=~ SUPPLY COUNTY OF HA~~01 I ~~QFHAWp~~~P '.~-~``~~4~ K~KUA~NAO:~A';`;ST~EET, SUITE 20 ~ H ILO, HAWAII 96720 TELEPHONE (808} 961-8050 ~ FAX (808) 961-8657 June 27, 2Q07 T0: Mr. Christopher J. Yuen, Planning Director Planning Department FROM: Milton D. Pavao,. Manager SUBJECT: SPECIAL 1VtANAGEMENT AREA USE PERMIT N0.379 REQUEST - TIlVIE EXTENSION TO CONDITION 4 OF SMA 379 CHANGE OF ZONE N0.866 REQUEST -TIME EXTENSION TO CONDITION C OF ORDINANCE N0.97-102 APPLICANT - KOHALA LLC TAX MAP KEY 5-9-001:008 We have reviewed the subject request and have the fallowing comments. Please refer to our memorandum to you, dated February 6,1997, for our requirements. Item Igo. 3 of that letter shall be revised as follows: " 3. Pay a fee of four tenths of one percent of the estimated cost for the construction of the waters stem but nat less than $50.00, to cover the cost for lan review to t' y p sing, and inspection." Should tl~lere be any questions, you may contact Mr. Finn McCall of our Water Resources and Plannin Branch at 961-8070, extension 255. g Sincer ly yours, Mi o D. Pavao, P.E. M a er r FM:dfg a copy - Kohala LLC Carlsmith Ball LLP P 0 q tl n 1 i1 ~ ~ g p Exhibit . ~ ater rirt ~ ~o re~~... ~ ~ ~ The Department of Water Supply is an Equal Opportunity provider and employer. To file a complaint of discrimination, write: USDA, Director, OfFce of Civil Rights, Room 326-W, Whitten Building,14th and Independence Avenue, SW, Washington DC 20250-9410.Or cal{ (202} 720-5964 (voice and TDD) _ _ _ _ ~a~ . . D~ ""~tq Q, f~A ~ ~ O . I! ' o~y DEPA _ RTMENT OF 1NATER SUPPLY ~ COUNTY OF HAWA w~ ~~+4. 1 25 AUPUNI STREET HILO, HAWAI! 9fi72p TELEPHONE (808) 969.1421 FAX (808) 969.6996 February 6, 1997 . ~ c. ` ~ T0: Plannin De artm 9 p ent - . FROM: Milton D. P ~ • avao, Manager . ~ w SOBJECT: . SPECIAL. MANAGEMENT AREA USE PERMIT a PPLICATION N0. 91-001 ANGE OF ZONE APPLICATION N0. 91-001 APPLICANT - GENTRY-PACIFIC, LTD. TAX MAP BEY 5-9-001:008 We have reviewed the subject a lication f PP s or the proposed subdivision. The water system in the area is privately owned and o erated. R Pursuant to Section 23-84 of the ~(awaii Count C y ode regulating subdivisions, the fallowing minimum requirements must be co lied wi . ~ th for subdivision approval: 1. Provide a water system designed to deliver w ater at adequate pressure and volume under-peak and fire-flow conc}itions in a ccordance with the Water System Standards , State of ~fawai i , and the Ru 1 es and R . egulatlons of the Department of Water Supply- The water system shall include . , but not be l~m~ted to, the installation of the necessary distribution i elfin p p e, fire hydrants, and service laterals. 2. Su~nit construction plans far our revi ew and approval. 3. Pay a fee of four-tenths of one ercent of p the estimated cost for the c©nstruction of the water system, but not less than X25.00 to cover the cost for plan review, testing, aru~ ins action. P Should there be any questions, the a licant PR can contact our Water Resources and mng branch at 961-8660. ton D Pavao. P.E. onager ~~~5 WA : gms copy -Gentry-Pacific , Ltd . Mr . Sidney M . Fu ke a~er rin ~ ro re~~ . ~ ~ ~ y~ SY dF N J~1•.....•q 0. .w9 . i" . Harry Kim ~ } x - . , ~ * Bobby Jean Leithead-Todd 1Nayor _ ` • Director E OF HA Nelson ]Ho Deputy Director ~~~c~ ~ ~ DEPARTMENT OF ENVIRONMENTAL MANAGEMENT 25 Aupuni Street • Nita, Hawaii 96720-4ZSZ (SQ8) 961-8083 ~ Fax (808) 96I-8086 Date : June l9, 2007 To CHRISTOPHER YUEN, Planning Director From : BOBBYJEAN LETI'HEAD-TODD Director t SUBJECT: Special Management Area Use Permit No. 379 Request: Time Extension to Condition 4 of SMA 379 Change of Zone No. 866 Request: Time Extension to Condition C of Ord. 97-102 Applicant: Kohala LCC T~MK: 5-9-1:8 We have reviewed. the subject application and offer the following recommendations: DEPARTMENT COIViMENTS: WASTJ~WATER COMMENTS: N/A ( } No comments }Require connection of existing andlor proposed structures to the public sewer in accordan ce wlth Section ZZ-5 of the Hawaii County Cade. ( )Require Council Resolution to approve sewer extension in ~cordance with Section 2 I -2f . l of the Hawau County Code. Complete D.E.M. Sewer Extension Application. Require extension of the sewer system to service the proposed subdivision in accordance wi th Section 23-85 of the Hawaii County Code. ( }Other: 4~ , . . . - TECHNICAL SERVICES CO S• ~ ~ ~ ~ r . ~'1t1 C~ E ~~j` SOLID WASTE CO MMENTS. ( ) Na comments } Commercial operations, State and Federal agencies, religious entities and non- r p ofit organizations may not use transfer stations for disposal. ( Aggregates and any other construction/demolition waste should be re nsibl reuse ~ y d to its fullest extent. (~'C~} Ample and equal room should be provided for rubbish and recycling. Greenwaste may be transported to the green waste sites Iocated at the Kailua and Hiio trans fer stations, or other suitable diversion programs. Construction and demolition waste is prohibited at all County Transfer Stations. Submit Solid Waste Management Plan in accordance with attached idelines. ( }Existing Solid waste Management Plan is to be followed. Provide update to the de artmen p ton current status. .a P~ann~n CC: SWD, TSS Hawaii Coun is an a ual ~ ty q opportunity provider and employer. g~9 E~hobit Mtn N ~v ; ~ •.1~y' Barbara Bell . ~ . ~ ~i,~, Director Harry Kim ' ~ Mayor Michael Dworsky P.E. Solid Waste Division Chi gun a av~a~ i DEPARTMENT 4F ENVIRONMENTAL MANAGEMENT 25 Aupuni Street, Room 210 • Hilo, Hawai i 96720-4252 (808) 961-8083 ~ Fax (808) 961,8086 June 6, 2x06 . SC?LfD WASTE MAf~lA~EMENT PLAN ~ufdelines INTENT AND PURPOSE This is to establish guidelines for reviewing solid waste management plans, for which . special conditions are placed on developments. The solid waste management plan will be used to: (1) encourage recycling and recycling programs, (2}predict the waste .generated by the proposed development to antiapate the loading an County ~ansfer stations,. landfills and recycling facilities, and (3~ predict the additional traffic being generated because of waste and recycling transfers. REPORT The consultant's report `+~rill contain the following: 1. Description of the project argil the potential waste it may be generating: i.e. analysis of antiapated waste volume and composition. This includes waste generated during the construction and aperationai ~?hases. Greenwastes will be included in this report for bath construction grubbing and future operational landscape maintenance. 2. Description and location of the passible sites far waste disposal ar recycling. We will not allow the use of the County transfer sta~ons for any commercial development; commercial development as defined under the ~(icies of the Department of Environmental Management, Solid Waste Division. 3. Since the Department of Environmental Management promotes recycling, indicate onsite source separation facilities by waste seam; i.e. source separation bins of glass, metal, .plastic, cardboard, aluminum, etc. Provide ample end equal space for rubbish and recycling. 4. Identification of the proposed disposal site and transportation methods for the various components of the waste disposal and recycling system, includin the 9 number of truck traffic and the route that truck will be using to transport the waste and recycled materials. Solid Waste Management Plan Guidelines Page 2 of 2 . 5. The report will include any impacts to County waste and re clip facilities a th ~ cY g nd e appropriate mitigation measures. All recommendations and mitigation measures will be addressed.. 6. Description of the waste reduction cam orient that a ' p nalyzes techniques to be employed to achieve a reduction goal. 7. Analysis will be based on the hi hest tential use or z ' g Po onmg of the development. REQUIREMENTS AND CONDITIONS 1. A solid waste management plan will be done for all commercial develo men defined and ' ~ p ts, as er the polices of the Department of Environmental Maria ement Solid Waste Division. g ' 2. We will require the develo r to ovide or re;;?c~ly • Pe Pr a all recommendations and mitigation measures.as ou~ir~ed in the report; besides .an conditions laced. on the a licant b y p pp y the- Department of Environmental Management. 3. A licensed environmental or avil engineer will draft and ce ' the solid was y to management plan. CONCUR: Barbara Belt DIRECTOR 10/133 Revised Qfi/~~i06 tfawai'i County is an Equal Opportunity Provider and Employer. s SY Oi N ~ 1 - .ry , n 1 ~ibfry • ~ • ~ Harry Kim r_ f,,, 7 ; ; _ • is • ` - ° • . . Mayor ' ~ Troy M. Kindred _ . grE•4F Administrator ~~~Or~~~ ~ • ~ CIVIL DEFENSE AGENCY 920 Ululani Street ~ Hilo, Hawaii 96720-3958 (808) 935-0031 Fax (808) 935-6460 T0: Christopher Yuen, Director, Planning Department FROM: Tro Kindred Civil Defense Administrator ~ . - _ ' Y ~ _ ~ .a DATE: June 28, 2007 SUBJECT: Special h!fanagement Area Ilse Permit No. 379 Applicant: Kohala LLC Request: Time Extension to Condition C of ~t3rd. 97^ ~ 02 Tax Map Key: 5-9-1:8 ~e have no comments to offer at this time in reference to the above-mentioned time extension to Condition C ar Ordinance C 97-102 to Special ement Area Use Nfanag Permit number 379. If you have any questions, please call me at 935-0031. " ~i~~~sn t. Hawaii Coun is an e ual o ortuni ravider ~ Q Pp ty p and employer Exhibit e - `a 3 _pe.eaoeoa.~e~'/~ o F aLt,aN a. sm~Tx M LIlVDA LINGLE ~ d''~d ° 1 s s y iR''~~RL~t CHAOtPERSON GOVERNOR OF HAWAII y ~ ~~~~~///i ?3UARD i~F Lr~vTD ~ Nr1't I.RAL RESOURCES f !U a C'O~IMISSION ON WATER RESOt~tCE ~~AGEAfENT 0 t~~j ..n 4 CK t C4 ~ ~d~ ~ ~ STATE OF HAWAII ry ~ DEPARTMENT OF LAND AND NATURAL RESOURCES - _ LAND DIVISION ~ ~`.~ra`` POST OFFICE BOX 62 I HONOLULU, HAWAII 96809 sane 24, 2007 bounty of Hawaii Plalning Department 1 Q 1 Pauahi Street Suite 3 Hilo, Hawaii 96724 Attention: Mr. Norman Hayashi Gentlemen: Subject: Special Management Area Use Permit No. 379, Time Extension to Condition C of Ord. 97-I02 for Kohaia LLC, North Kohala, Hawaii, Tax Map Key: f 3) 5 -9- l : 8 Thank you for the opportunity to review and comment on the subject matter. The Department of Land and Natural Resources has no comment to offer on the subject matter. Should you have any questions, please feel free to call our office at 587-4433. Thank you. incere Russell Y. Tsuji Administrator ~~~~nr~g apt. ExhEbit ~ ~ ~ LINDA LINGLE CHIYOME L. FUKINO, M.D. t~Fy GOVERNOR ~,..»•••~••~.,q w r ,~*f•~ ~9,5g ~ Director of Health 't ~ gs e~8 ~ ~ . ~ a era a~ STATE OF HAWAII DEPARTMENT OF HEALTH P.O. BOX 916 HILO, HAWAII 96721-0916 MEMORAI~IDUM DATE: June 22; 200? T0: Cluistopher J. Yuen Planning Director, County of Hawaii FRAM: Curtis I. Takai Acting District Environmental Health Program Chief SUBJECT: Special Management Area Use Permit Igo. 379 Request:. Time Extension to Condition 4 of SMA 379 Change of Zone Na. 8b6 Request: Time Extension to Condition ~ of Qrd. 9?- I OZ Applicant: ~ohala LLC Tax Map Ivey: 5-9- I :8 The submittals for the subject development have been transmitted to our Environmental Management prog~:ams for their coordinated review and comments. Upon receipt of their re I p Y~ their comments will be forwarded to your off ce. VvORD:SMA 379.my ~ g D t. E~h ~:t ~ ~ ' ~oha~aL~,e-AmendREZ866.jwd 07-10-07 COUNTY OF HAWAII PLANNING DEPARTMENT RECOMMENDATION KOHALA LLC AMENDMENT TO CHANGE OF ZONE ORDINANCE NO.97-102 REZ 866 tJpan careful review of the applicant's request against the criteria: for anon a time g extension, the :Planning Director. is recommending that an unfavorable recommendation be forwarded. to the Hawaii bounty Council for the amendment re nest to allow a S- ear time q y extension to comply with Condition C (secure Finai Subdivision A.p royal of Chan e of Zone p ) g Ordinance ~o. 97-102. Since this: recommendation is made without the benefit of ublic p testimony, the Director reserves the right to modify and/or alter this osition. This unfavorable p recommendation is based on the following hndings: The applicant, Kohala LLC, is requesting a 5-year time extension to eom 1 with pY Condition C (secure Final Subdivision Approval} of Chan e of Zone Ordinance No. 97- g 102, which states: "The proposed development within the subject property shall consist of a rnaximurr~ of fi~y residential lots (not including roadway or other such common area lots}..Final Subdivision Approval Qf the proposed residential subdivision within the subj ect property. shall be secured from the Planning Director within.. f ve 5 ears from Oy the effective date of this ordinance." Change of Zone Ordinance No. 9?-102 was approved. b the Hawaii .Count y y Council with an effective date of July 14,1997, which rezoned 3?.88 acres from A-Sato RS-15. The non-performance is the result of conditions that could have been 4 foreseen and were not beyond. the control of the applicant, its successors or assn ns g~ and that are the result of their fault or negligence. The applicant at the time of the change of zone approval (July 14,199?}was Gentry Pacific, Ltd. The property was purchased by Kohala LLC on June 30,1999. In reviewing the files, annual progress reports for the development were submitted only in 1998 and 2001. Condition C of Change afZone Ordinance No. 97-102 required that the applicant secure Final _1_ , ~ 3 Subdivision Approval within five (5) years from the effective date of the ordinance Jul ( Y 14, 2002). within the 2001 annual progress report, it stated that the a licant was full pp y aware that final subdivision approval must be secured before July 2002. There has been no subdivision application filed with the Planning Department incompliance with Condition C as of the date of this writing. Condition U of Change of Zone Ordinance No. 97-102 allowed for an initial administrative time extension for the performance of conditions for a period nat. to exceed the period ariginaliy granted for performance. Neither the previous nor present owner submitted a request for an administrative time extension to comply with Condition C of Change of Zone Ordinance No. 97-102. This means the ordinance expired five years. ago. Condition V in Change of-Zone Ordinance No. 97-102 states that should an of y the conditions not be met or substantially complied with in a timel fashion, the Director Y may initiate rezoning.. of the subject property to its original or more a ro Hate pp p designation. As a result of the non-compliance of Condition C as described above the Planning Director is initiating the. rezoning of the propertyfrom aSingle-Family Residential (RS-15) to a Residential and Agricultural 5-acre (RA-Sa zoned district. The denial is also based upon the reasons given in supp©rt of the Planning Director's proposed rezoning of the property to R,A-5a. Based on the above, the Planning. Director is recommending that the Ptannin g Commission send an unfavorable recommendation for the amendment request to allow a 5-year time extension to comply with Condition C (secure Final Subdivision Approval) of Chan e of g Zone Ordinance No. 97-102. _2_ k BKohaIaLLC-AmendREZ86b-SMA379 12-26-07 COUNTY OF HAWAII PLANNING DEPARTMENT ADDITIQNS TO BACKGROUND AND RECOMMENDATION REPORTS INITIATOR: PLANNING DIRECTOR REVOCATION OF SPECIAL MANAGEMENT AREA USE PERMIT N0.379 CHANGE OF ZONE APPLICATION FROM RS-15 TO RA-SA KOHALA LLC AMENDMENT TO SPECIAL ~!tANAGEMENT AREA USE PERMIT N0.379 AMENDMENT TO CHANGE OF ZONE ORDINANCE N0.97-102 Z 866 Same issues have been raised by the applicant that warrant a response in a supplemental background and recommendation far the Planning Commission's consideration of the rezoning proposed by the Planning Director,. and the applicant's request for a time extension. Legality. The applicant has challenged the legality of the Plannin Director's ro osed g pp rezoning of the property from RS-15 to RA-Sa. This involves general legal issues that are w©rth discussing because they can come up in Planning Commission delibera°ons. This can broken down into two related topics: "vested rights" and "tom s". Both of g these relate to how far the government can ga in limiting the use of private pr©perty through land use controls. Vested rights. Generally, Laws and regulations affecting land use can be changed. So, for example, an ordinance may reduce the height limit for buildings in a certain area, and if an owner applies to build on a vacant property, the owner must comply with the new height limit. And through rezoning, the government has the power to change a landowner's zoning to a less intensive use. The law recognizes, however, that Land development proceeds in stages, and that after a certain point, the owner should be allowed to complete a project as planned, and be protected from changes. The term normally used is that the owner has "vested rights" to proceed with a development. 1 M r In Hawaii land use law, the developer has "vested rights" when there is no further discretionary action required for the project to proceed, and the owner has expended substantial amounts in reliance upon that final discretionary action. Kauai Count v. Pacific Standard Life Ins. Co., 65 Haw. 318 (1982). The "discretionary action" is a key concept. It means a permit or other approval that requires the decision maker to exercise judgment ("discretion") in deciding whether or not to issue the permit or a royal. In a pp discretionary action, the decision maker must weigh a number of factors against broad standards given by the law. The other type of permit, in contrast to a discretionary permit, is a "ministerial" ermit: p one where the factors leading to a decision are described with such precision that nothin g is left to discretion, where the duty to act is absolute, clear,. and imperative, 63C Am.Jur. 2d Public t~fficers sec, 325, and where the only requirement to proceed is that a ublc p officer process an application for compliance with all applicable statutes, ordinances, rules, and regulations, and the conditions attached to such approvals. Life of the Land v. City and County of Honolulu, 61 Haw. 390 (1979). ~ ministerial action will have precise, fixed standards. A building permit is a ical example of a ministerial permit. The Building Code sets out minimum requirements for a building, such as the spacing of floor joists, the required window area, the width of doorways, and the like. If the building meets these minimum requirements, the buildin g official reviewing the permit has no discretion to refuse to issue the permit. In land use law, the ministerial approvals, such as building permits and driveway permits, typically follow the discretionary approvals, such as a rezoning. A change of zone, or an amendment to an existing zoning is a legislative act, Save Sunset Beach Coalition v. Cit~and County of Honolulu,102 Haw. 465 (2003). It is discretionary (as are all legislative acts} because the decision maker-the County Council must use its judgment in deciding whether or not to approve the rezoning or the proposed amendment. 2 ` Turning to the Kohala LLC issue, on the question of a time extension, the rezoning ordinance, in Condition "V", says that if the time conditions are not met, the lannin . p g director may initiate a rezoning to the original or a "more apprapriate" designation. The Zoning Code, in sec. 25-2-44(c}, says the same thing, in sec. 25-2-44(c}: "Failure to fulfill any conditions of the zone change within the specified time limitations, or any extensions thereto, may be grounds for the enactment of an ordinance making further zone changes or-for rezoning the affected property back to its original zoning designation or a more appropriate zoning designation, upon initiation by either the director or the council in accordance with section 25-2-43." Clearly, the decision whether another zoning designation is "more appropriate" is discretionary, not ministerial. The Zoning Code and rezoning ardinance da not have special standards for considering a time extension as compared with other kinds of amendments to zoning ordinances or their conditions, so the only applicable standards are those that apply to the enactment of zoning ordinances and conditions generally: Section 25-2-40. when zoning code may be amended. This chapter maybe amended by changing the boundaries of districts or by changing any other provision in this chapter whenever the public necessity and convenience and the general welfare require such amendment, and when such amendment would be consistent with the goals, policies and standards of the general plan. Section 25-2-44. Conditions on change of zone. (a} within any ordinance for a change of zone, the council may impose conditions on the applicant's use of the property subject to the change of zone, provided that the council f rands that the conditions are: (l} Necessary to prevent circumstances which may be adverse to the public health, safety and welfare; or 3 ~ 's t (2) Reasonably conceived to fulfill needs directly emanating from the land use proposed with respect to: (A) Protection of the public from the potentially deleterious effects of the proposed use, or (B) Fulfillment of the need for public service demands created by the proposed use. These are also discretionary standards, not ministerial ones. Even the standards far the Planning Director's power to grant an initial administrative time extension are discretionary, as stated in Condition "tJ" of Ord. ~7-102: U. An initial extension of time far the performance of conditions within the ordinance may be granted by the Planning D~rectar upon the follawin g circumstances: 1. The non-performance is the result of conditions that could not. have been foreseen or are beyond the control of the applicants, its successors or assigns, and that are not the result of their fault or negligence. 2. Granting of the time extension would not be contr to the General Plan or Zoning Code. 3. Granting of the time extension would not be contrary to the original reasons for the granting of the change of zone. 4. The time extension granted shall be for a period not to exceed the period originally granted for performance (i.e., a condition to be performed within one year may be extended for up to one additional year.) With the exception of the limit in length of a time extension, these provisions require the exercise of judgment and discretion. 4 ` ~ After Kohala LLC's five year timeframe to secure final subdivision approval expired in 2002, it needed a discretionary action toproceed-first, the Plannin Director's g administrative time extension (which it has never received}, and second, the Council's agreement to extend time. Because it needs a discretionary action to proceed with its development, it has no vested rights. The project also needed a subdivision approval, which is also discretion within the bounds of discretion provided by the terms of the Subdivision Code. Kohala LLC's argument is equivalent to saying that the Council must allow a time extension whenever it is requested by a Landowner. This would, of course, defeat the very idea. of having time conditions. Obviously, tune conditions allow the Council to reconsider whether a property's zoning is still appropriate, given the current conditions and. desires. There is specific case law holding that whether or not to grant a time extension to a rezoning is a discretionary decision by a legislative body, and that the court will u hold p the refusal to extend time if it has any reasonable basis in fact, which can include eneral g land use considerate©ns. Court House Plaza Co. v. Ci of Palo Alto 117 Cal. A . 3d 871173 Cal. Rptr.101(1981.). A SMA permit is also a discretionary decision. The. factors to be weighed are listed. in H.R.S. Chap. 2o5A. There are many factors, but all of them call for the exercise of judgment and discretion. In fact, all of the permits upon which the Planners Commission g makes a final decision are discretionary. Takings. The Supreme Court has upheld the basic concept of zoning restrictions that . limit the use, and often the market value, of private property, including restrictions that greatly diminish the value of property. If this were not so, the entire system of zoning and other land use regulations would be impossible. Courts have u held land use p 5 3 • regulations that reduce the value of property by as much as 95%. The Court has said that such regulations can go too far, however, and constitute a "taking" of private property for public use. In that case, the public must pay just compensation to the landowner, similar to the actual taking of property by eminent domain. The law of "takings" is complex. But in the typical situation, a zoning ordinance will not be a taking on the grounds that it unduly limits the density of development allowed on a property, unless it does not leave the owner with some beneficial economic use of the property. The ability to build one home on a lot, for example, is enough of a beneficial economic use to defeat a "takings" claim. Palazzolo v. Rhode Island, 533 U.S. 646 (2401 Applying this to proposed Kohala LLC rezoning,. the RA-Sa zoning, if later accom anied p by a SMA permit far the same Density, and a subdivision approval would allow the 37..8 acre property to be subdivided into seven lots of five acres; and on each. lot, a home could be built. This is a significant economic use; and the property, with that level of entitlement, is very valuable. To compare, the 63-acre property immediately to the south, also along the shoreline, was purchased in 2004 for $16.5 million. That property was in the state land use urban district, county zoned A-Sa. The owner of the 63-acre property did not seek. rezoning .and has obtained SMA permit approval to subdivide the property into five-acre Lots. what the owner did with that property is basically what is being proposed for this property. Appropriate Land Use. Clearly, the fact that the government and its agents Like the County Council and Planning Commission have the legal right and power to put certain restrictions on land. does not mean that it necessarily should do so. The issue must still be analyzed from the overall standpoint of land use. The most significant reason for changing the zoning is that the public goal of a preserving viewplanes to the shoreline and ocean can be better and more easily achieved in the 6 context of a development involving seven homes versus fifty homes. The public purpose for this area has been expressed by legislative concurrent resolutions. More generally, the SMA law, H.R.S. sec. 205A-2~(3}(D} expresses the desire of the legislature to minimize development that will "substantially interfere with or detract from the line of sight toward the sea from the state highway nearest the coast." In a subsequent SMA permit, this policy can be more easily implemented in shin seven homes rather than g fifty. The proposed RA-Sa rezoning will also further policies stated. in the General Plan such as sec. 7.3(b}: "Develop and. establish viewplane regulations to preserve and enhance views of scenic or prominent landscapes from specific locations, and coastal aesthetic values", 7.3(h}: "Protect views of areas endowed with natural beauty by carefully considering the effects of proposed. construction during all land use reviews" and 7.3 i s "Do not. allow incompatible construction in areas of natural beaut waiakilio B~. Y y, which is at the northern end of the property, is cited in the General Plan as an example of natural beauty in the North Kohala district, seep. 7- l 0, along. with, more generally, the coastline viewplane from Akoni Pule Highway. In the "Natural Resources" section of the General Plan, one policy is to "Protect the shoreline from the encroachment of manmade improvements and structures." Sec. 8.3(d}. The proposed rezoning will also reduce the potential for problems from soil erosion due to development of the site by reducing the amount of actin and other land clearin . g g The site is crossed by several gulches, and there has been significant soil erosion into the ocean fronting the site, apparently from runoff from mauka areas, which include the Kohala Ranch subdivision. The proposed RA-Sa zoning is actually much more consistent with the ical zonin ~ g makai of the Akoni Pule Highway. All of the land makai of the Akoni Pule Hi wa in ~ Y North Kohala, from the South Kohala boundary, to Upolu Point, is zoned Open, A-Sa, or A-20a, except for two areas: the Kohala Waterfront subdivision, which is about 2800' south of this property, and Mahukona. Kohala waterfront iszoned RM-4 but is bein g 7 # ~ 7 developed as asingle-family residential subdivision. Mahukona and the Ka aan p ui property to the north have a mix of visitor and A-1 a zoning, but the latest develo ment p proposal is for much less than the densit ermined b zonin Y p y g. As stated earlier, the property immediately to the south is being developed into five-acre lots. The LUPAG map shows the southern two-thirds of the ro ert as "low densit ur " p p y y ban , while the northern one-third is "extensive agriculture." The LUPAG ma allow p sa residential development at RS-15 and even greater densities, but it does not mandat e the Council to zone such properties to an urban use. The Council mu st still apply site specific factors and. judgment to the zoning. of a particular site. Although not the prime reason for changing the zone, the owner's inaction in develo i p ng the property is relevant to the question of revoking the RS-15 zonin .The owner has g offered no reason for inaction beyond this sentence in their r resents ' ' ep tive s June 5,.2007 letter: "ln its efforts to comply with the conditions of .royal-under Ordinance 9 - ~p 7 102 and SMA 379, Kohala LLC has completed an Archaeolo 'cad Invento ~ ry Survey, and obtained. SHPD approval for the Site Preservation Plan and Burial Trea ' tment Plan, and is currently assessing its rights and obli ations under the various Dev g elopment and Water Agreements involving several third-party entities relative to water sources su 1 pp y3 easements and transmission lines for the Project." Ordinance 97-102 contains a number of conditions relating to time. The onl action Y claimed by the applicant in its 2007 annual report relates to the a royal of the burial pp treatment plan and preservation plan by SHPD, under Condition "NI" but even this i s somewhat illusory. The archaeological work was lar el done b the t' g y y ime of the rezoning in 1997. SHPD did approve the burial treatment plan and reservation lan in p p. 2001; but as pointed out in the Planning Department's October 200I left r e to the applicant, these approvals were based on the owner's representation that the Tans had p changed to become one single-family residence, and that the owner would have to obtain anew approval from SHPD if they went back to a subdivision conce t. Althou the p gh ordinance and SMA permit require annual reports, the a Iicant did not pp file any from 8 _ _ . ~ ~ 1999-2006, except for one in 2001 where the. a licant ackno pp wledged that final subdivision approval was due in 2002. They-also filed one after the Plannin Di g rector initiated the rezoning. Condition "C" requires final subdivision a rovai within. five ear pp y s. The applicant has not even filed maps far tentative subdivision approval. It t icall takes ~ -2 .ear Yp Y y s from the filing of the maps for tentative subdivision approval to the recei t of final s p ubd1v1S10n approval. Condition "F" requires construction of improvements to Akoni Pule Hi w ~ aY meeting with the requirements of the State DOT. No plans. far such im roveme p nts have been submitted to the DOT. Condition "J"states that a drama e lan if re u' g p q gyred, shall be submitted to DPw before submittal of subdivision ions. DPw p .asked far a drainage study by letter prior to the rezonin ; no drama a lan has g g p been submitted. The public access plan required by Condition "0"has not been submitted. The Planning Director recommends that the Plannin Commission fo g rward a favorable recommendation to the County. Council on the Planning. Director's re :nest to re cal q p Ordinance 97-102 and to rezone the pro a to RA-5 and an u p ~Y ~ nfavorable recommendation on the applicant's request for a time extension of Ordinance 97- 102. If the Planning Commission is inclined. to support a time extension to the RS-15 zo rung, it should note the following: • Condition "F" states generally that access from the .Akoni Pule Hi wa ~ Y should meet with the approval of the State DOT. The Police De art p ..meat suggested that right and left turn lanes be re wired at the time q of the 1997 rezoning. If there is to be a 54-Iot subdivision here, with access from a high-speed highway, such turn lanes should be re wired. q • Condition " J" says that a drainage study "if required", should be done. DPw asked for a drainage study in 1997. The grope is crossed b ~ y several gulches. The drainage stud should be re wire Y q d. 9 ~ ?J~, ARLSMITH BALL LLP A LIMITED LIABILITY LAW PARTNERSHIP 121 WAIANUENUE AVENUE P,O. Box 686 HILO, HAWAII 96721-0686 'I~LEPHONE 808,935.6644 FAX 808.935.7975 WWW.CARLSMrI'H,COM SLIMC~CARLSMITH.COM March 18, 2008 Rodney Watanabe Chairman, Planning Commission County of Hawaii 101 Pauahi Street Suite 3 Hilo, Hawaii 96720 Members, Planning Commission County of Hawaii 101 Pauahi Street Suite 3 Hilo, Hawaii 96720 Re: Kohala LLC Zoning Ordinance No. 97-102; Special Management Area Use Permit No. 3 79 Dear Chair Watanabe and Members: On behalf of the Applicant Kohala LLC, this will request that the Planning Commission approve our request to extend the time limits for completion of the project, subject to the attached Conditions of Approval (clean and redline versions), as it is obvious from the review of the facts that the Planning Director's proposed downzoning and revocation of the SMA Permit in this matter is manifestly unfair and illegal. Since our last hearing before the Planning Commission, we conducted further research on the history of involuntary downzonings and SMA Permit revocations by the County of Hawaii. As previously discussed, in the last eight years or so, the County of Hawaii has not processed any involuntary downzonings, and the only involuntary SMA permit revocation of which we are aware was for a project that subsequently obtained another SMA permit and is proceeding with development. In fact (as shown by the Planning Director's research) the County of Hawaii's last action to involuntarily downzone properties was 26 years ago in 1982, and those downzonings were initiated as an islandwide effort to conform with the then-recently amended July 16,1979 General Plan. Pointedly, the proposed Kohala LLC downzoning is the only property under the threat of downzoning today. To further illustrate why the Planning Director's proposed downzoning and SMA Permit revocation is unfair and illegal, attached hereto are documents that HONOLULU KAPOLEI HILO KONA MAUI GUAM SAIPAN LOS ANGELES f Rodney Watanabe Members, Planning Commission March 18, 2008 Page 2 resulted in the 1982 downzoning ordinances. These documents demonstrate the proper procedure that the County of Hawaii must follow in processing downzoning ordinances, especially when done against the wishes of the property owner. In the example of the Keaukaha, Hilo downzonings, the following occurred: First, the County of Hawaii General Plan was amended on July 16,1979 to change the General Plan LUPAG designation for the three Keaukaha properties from Resort to Industrial, Open and Low Density Urban development. Second, on May 7,1981, the Planning Commission held a public hearing on the "change of zone amendments being initiated by the Planning Director as a result of conflicts between the General Plan and land use designation and the current zoning designations . Third, on May 5,1982, the County Council approved downzoning Ordinance Nos. 784, 785 and 786. As demonstrated in the Keaukaha downzonings, a General Plan amendment is the proper procedure for the enactment of any downzoning ordinance. No such amendment has been enacted for the Kohala LLC property. In contrast to the Keaukaha properties, the Kohala LLC downzoning is being processed by the Planning Director without ~ General Plan LUPAG or text amendments that require the downzoning of the Kohala LLC property. The General Plan that existed at the time of the 1997 approval of the Change of Zone Ordinance No. 97-102 and SMA No. 379 remained essentially the same. In fact, in the 1997 Zoning and SMA approvals for the Kohala LLC project, the Planning Director made specific findings that the proposed 50-lot RS-15 zoned residential subdivision complied with the General Plan. On behalf of Kohala LLC, we request that the Planning Commission recognize the patent unfairness of the Planning Director's proposed downzoning and revocation of the SMA Permit. Kohala LLC requests that the Planning Commission adopt the Applicant's proposal to voluntarily downsize the number of proposed lots from 50 lots to 25 lots for this 37.88 acre property, by granting the requested time extensions to Zoning Ordinance No. 97-102 and SMA No. 379, subject to the Applicant's proposed Conditions of Approval attached hereto. Very truly yours, CARLSMITH BALL LLP Steven S. . Li S S L/lny Enclosures cc: Christopher Yuen, Planning Director Amy G. Self ,Deputy Corporation Counsel Ivan Torigoe, Deputy Corporation Counsel Angel Pilago, Chair, Planning Committee -County Council 4840-6930-5346.1 7~Z7TTi?C7C SPECIAL MANAGEMENT AREA USE PERMIT X379 HALA LL,C - PROPn~F,n CONDITIONS OF APPROVAL 1. The applicant, its successors or assigns shall be responsible for com 1 in with all of the pY g stated conditions of approval. 2. The effective date of this Special Management Area Use Permit shall be the effective d ate of the Change of Zone Ordinance 3. The applicant, its successors or assigns shall be responsible for com 1 in with all of the pY g conditions of approval of the Change of Zone ordinance. 4. Final Subdivision Approval of the proposed - esidential subdivision shall be secured from the Planning Director within five (5) years from the effective date of this 5. ~1-~a~-g~~t~Alon~ the shoreline of the P, ro~erty. all structures shall be set back a minimum Pile Hi ~hwav ri ~ht-o -wav 1 6. A preliminary site plan shall be redesigned in order to create mauka-makai vie ' w corridors from Akoni Pule Highway and shall be submitted in con'unction with the subdivi ' J slon plans. Such plan shall meet with the approval of the Plannin De artment. ' . g p 7. A mauka-makki road access of sufficient width to accommodate vehicle access 24 hours a day for drop off and pickup shall be provided, alon with the minimum 10-foot ' g wide lateral public access walkway along the shoreline. The a of im rovements ' . tYp p and specific location of the walkway shall be determined at the time of subdivision a royal ' pp review. Further, aminimum offour on-site public parking stalls to serve the walkwa y . the la r 1. shoreline a~rPC~ shall be provided and clean identified. A shoreli Y ne setback variance shall be secured for any improvements to the public access which will be w' ' ithin the 40-foot shoreline setback area. Construction of the ublic walkwa an ' p y d parking stalls shall be completed prior to issuance of any buildin ermit for an structur g p y es. ~ ~ mt~s~nnPr a an P rPrnmmPn atinn 4836-4954-7010 2 DRAFT 3/18108 _ _ r t 8. The applicant shall develop and submit a com rehensive ublic access lan f , p p p or the subject property for review and approval to the Plannin Director in consultation ' g with the Department of Land and Natural Resources (Na Ala Hele Trails Pro ram in . g conjunction with Final Subdivision Approval. The public access lan shall rovide for p p mauka-makai and lateral shoreline pedestrian accesswa s, ublic arkin stalls f Y p p g or users of the shoreline axes, signage and restrictions on use if an ubli . ( y) p c access improvements shall be completed prior to ' ' ' ~ ~ ~ ~ the subject prope rtY 9. A drainage study of the project site shall be re ared for review and a rov p p pp al by the Department of Public Works, in conjunction with submittal of laps for subdivisi revi p on ew. Drainage improvements shall be constructed or bonded in a manner meetin wi g th the approval of the Department of Public Works rior to the issuance of Fin , , p al Subdivision Approval. 10. A Data Recovery Plan and Preservation Plan ' ins ~_c nronos~ . - of de~~lonment shall be prepared for the review and approval by the Plannin Director in con ' . g sultation with the Department of Land and Natural Resources-Historic Preservation Divi ' sion (DLNR-HPD). Proposed mitigation treatment (preservation in lace or p disinternment/reinternment) for burial sites must be a roved b the Histori ' , pp y c Preservation Division's Hawaii Island Burial Council before detailed miti ation Tans axe fi ' , g p nalized for these sites. A copy of the approved Final Data Recove Plan and Preservati . rY on Plan shall be submitted to the Planning Director for its files rior to submitta lan ' ' ' , p g p s for subdivision review and prior to any approval for any land alteration ermits. p 11. Should any remains of historic sites such as r ' ock walls, terraces, platforms, marine shell concentrations or human burials, be encountered, work in the immediate area shall cease and the Department of Land and Natural Resources-Historic Preservation ' ' ' Division (DLNR-HPD) shall be immediately notified. Subse uent work shall roc q p eed upon an archaeological clearance from the DLNR-HPD when it finds that suffici ' ' ' ent mitigative measures have been taken. 12. Comply with applicable laws, rules, regulations and re uirements of , q other affected agencies for approval of the proposed development within the subject roe ' the D J p p rty, including epartment of Health. , . . . ri n rr„a o b 4836-4954.~n i n ~ ~~~-2 :w _ _ _ _ t • • Y • ? . . • 1 ? , • • . • • . . . ` ? . ~ • • 1 • • • y , ? . . . • • , . ~ • . . . . , ~ ~ . . . . • . . . , • • L4. • • ~ 2 .1~. -~4: Restrictive covenants in the deeds of all proposed residential lots within the subject property shall prohibit Bed and Breakfasts on each lot. A co of the pY proposed covenants to be recorded with the Bureau of Conve ances shall be submitted Y with the plans for subdivision to the Planning Director for review and a royal. A pp copy of the approved covenant(s) shall be recited in an instrument executed b the Y applicant and the County and recorded with the Bureau of Conve ances in Y conjunction with the issuance of Final Subdivision A royal. pp . . .1.~. ' ' • otherwise am .nd this an royal 21 / 11 /08 Commissioner Watan he recnmmPnrlarinn X54.7 l 10. _ . , a, ~ ~ eb~, I Document com arison done b DeltaView on Tuesda ,March 18 2008 2:34:58 PM l ~ r h5a L b p ) ) ~ y. a C:IWindowslTem INDIM hrvold Conditions of A ro Document 1 p Y pp val SMA 379 1 .doc D C:IWindowslTempINDlMyhrvold Conditions of Approval ocument 2 SMA 379 SSL doc .doc Renderin set CB with Color Y / / 1 N ` 2 Y ~ 4v i S le char e Format char e t nserted cell Deleted cell Moved cell S Iit/Mer ed cell Paddin cell `r ~ 'Q 3, h k r N. ~ r 2::: ~ ~ T ~ Count Insertions 28 Deletions 15 Moved from 0 Moved to 0 St le Chan e 0 Format Chan ed 0 Total chan es 43 1 SPECIAL MANAGEMENT AREA USE PERMIT N0.379 KOHALA LLC -PROPOSED CONDITIONS OF APPROVAL 1. The applicant, its successors or assigns shall be responsible for complying with all of the stated conditions of approval. 2. The effective date of this Special Management Area Use Permit shall be the effective date of the amendment to Change of Zone Ordinance No. 97-102. 3. The applicant, its successors or assigns shall be responsible for complying with all of the conditions of approval of the Change of Zone ordinance. 4. Final Subdivision Approval of the proposed 25-lot residential subdivision shall be secured from the Planning Director within five (5) years from the effective date of this amendment. 5. Along the shoreline of the Property, all structures shall be set back from the shoreline a minimum of one hundred (100) feet. With the exception of Project entry features, all structures shall be set back a minimum of one hundred fifty (150) feet from the Akoni Pule Highway right-of-way. ~ 6. A preliminary site plan shall be redesigned in order to create mauka-makai view corridors from Akoni Pule Highway and shall be submitted in conjunction with the subdivision plans. Such plan shall meet with the approval of the Planning Department. All electrical and communication lines within the subject property shall be placed underground. 7. A mauka-makai road access of sufficient width to accommodate vehicle access 24 hours a day for drop off and pickup shall be provided, along with the minimum 10-foot wide lateral public access walkway along the shoreline. The type of improvements and s ecific P location of the walkway shall be determined at the time of subdivision approval review. Further, aminimum offour on-site public parking stalls to serve the walkway, one of which shall be to accommodate persons with disabilities and located reasonabl close to y the lateral shoreline access, shall be provided and clearly identified. A shoreline setback variance shall be secured for any improvements to the public access which will be within the 40-foot shoreline setback area. Construction of the public walkwa and arkin stalls Y p g shall be completed prior to issuance of any building permit for any structures. ~ Portion of l/11/08 Commissioner Watanabe recommendation. 4836-4954-7010.2 DRAFT 3/18/08 8. The applicant shall develop and submit a comprehensive public access plan for the subject property for review and approval to the Planning Director, in consultation with the Department of Land and Natural Resources (Na Ala Hele Trails Program), in conjunction with Final Subdivision Approval. The public access plan shall provide for mauka-makai and lateral shoreline pedestrian accessways, public parking stalls for users of the shoreline area, signage and restrictions on use (if any). The public access improvements shall be completed prior to submittal of any application for the first building permit for asingle-family dwelling on the subject property. 9. A drainage study of the project site shall be prepared for review and approval by the Department of Public Works, in conjunction with submittal of plans for subdivision review. Drainage improvements shall be constructed or bonded in a manner meeting with the approval of the Department of Public Works prior to the issuance of Final Subdivision Approval. 10. A Data Recovery Plan and Preservation Plan covering the proposed 25-lot development shall be prepared for the review and approval by the Planning Director in consultation with the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD). Proposed mitigation treatment (preservation in place or disinternmentJreinternment) for burial sites must be approved by the Historic Preservation Division's Hawaii Island Burial Council before detailed mitigation plans are finalized for these sites. A copy of the approved Final Data Recovery Plan and Preservation Plan shall be submitted to the Planning Director for its files prior to submitting plans for subdivision review and prior to any approval for any land alteration permits. 11. Should any remains of historic sites, such as rock walls, terraces, platforms, marine shell concentrations or human burials, be encountered, work in the immediate area shall cease and the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD) shall be immediately notified. Subsequent work shall roceed u on an p p archaeological clearance from the DLNR-HPD when it finds that sufficient mitigative measures have been taken. 12. Comply with applicable laws, rules, regulations and requirements of other affected agencies for approval of the proposed development within the subject property, including the Department of Health. 13. An annual progress report shall be submitted to the Planning Director prior to the anniversary date of this approval. The report shall include, but not be limited to, the status of the development and to what extent the conditions of approval are being complied with. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. 2 4836-4954-7010.2 DRAFT 3/18108 3 14. If the Applicant shall require an additional extension of time, the Planning Director shall submit the Applicant's request to the Planning Commission for appropriate action.2 15. Restrictive covenants in the deeds of all proposed residential lots within the subject property shall prohibit Bed and Breakfasts on each lot. A copy of the proposed covenants to be recorded with the Bureau of Conveyances shall be submitted with the plans for subdivision to the Planning Director for review and approval. A copy of the approved covenants} shall be recited in an instrument executed by the applicant and the County and recorded with the Bureau of Conveyances in conjunction with the issuance of Final Subdivision Approval. 16. Should any of the conditions not be met or substantially complied with in a timely fashion, the Director may initiate proceedings with the Planning Commission to revoke or otherwise amend this approval. 21/11/08 Commissioner Watanabe recommendation. 3 4836-4954-7010.2 DRAFT 3!18108 KBD-CHANGE OF ZONE ORDINANCE N0.97-102 KOHALA LLC - PROPO ED .CONDITIONS OF APPROVAL A. The applicant, its successors or assigns shall be responsible for complying with all of the stated conditions of approval. B. The applicant, its successors or assigns shall be responsible for complying with all of the conditions of approval of the Special Management Area Use Permit for the subject property. C. The proposed development within the subject property shall consist of a maximum of '~ytw_,,,en~t -five (251 residential lots (not including roadway or other such common area lots). Final Subdivision Approval of the proposed residential subdivision within the subject property shall be secured from the Planning Director within five (5) years from the effective date of this ~a ~,g~. D. Restrictive covenants in the deeds of all proposed residential lots within the subject property shall prohibit the construction of a second dwellin unit on each lot. A co of g pY the proposed covenants to be recorded with the Bureau of Conveyances shall be submitted with the plans for subdivision to the Planning Director for review and approval. A copy of the approved covenant(s) shall be recited in an instrument executed by the applicant and the County and recorded with the Bureau of Conveyances in conjunction with the issuance of Final Subdivision Approval. E. In conjunction with Final Subdivision approval, the applicant shall construct the necessary distribution pipeline, service laterals, and fire hydrants, meeting with the requirements of the Department of Water Supply. No buildin ermit for an of the gp Y residential structures shall be issued until units of water are available and committed to the subject property, as represented in the applicant's agreement with the Kohala Ranch Water Company (formerly Kohala Joint Venture). F. Access to the subject property from Akoni Pule Highway and any improvements within the Akoni Pule Highway shall be constructed prior to Final Subdivision A roval~ pp meeting with the requirements and approval of the State Department of Transportation., roadwav imnrovemen c chill ~nnc,ct of bLt arP not nP~Pecar;l~ limier . , a right turn acceleration lane. / G. Roadway connections to the adjoining parcel of the subject prope 's southeastern boundary shall be provided meeting with the approval of the Department of Public Works and shall be delineated on the final subdivision plat map for the subject ro e J p p ~Y~ ~ 1/11/08 Commic~ioner Watanabe recnmmPnrlat;nn 4852-2647-4242.2 DRAFT 3118/08 H. All interior roadways within the subj ect property shall be constructed meeting with the requirements of Chapter 23 of the Subdivision Code and with the approval of the Department of Public Works. I. All electrical and communication lines within the subject property shall be placed underground. ~ i~zn,t ~n;t t t 2 4852-2647-4242.2 D18/,~08 J. A drainage study of the subj ect property, ' ~ • ~ shall be prepared for review and approval by the Department of Public Works, prior to submittal of plans for subdivision review. Drainage improvements, if required, shall be constructed or bonded meeting with the approval of the Department of Public Works prior to the issuance of Final Subdivision Approval. K. The applicant, its successors or assigns shall prepare a Solid Waste Management Plan prior to securing Final Subdivision Approval for the proposed development within the subject property meeting with the approval of the Department of Public Works. A copy of the approved Plan shall be submitted to the Planning Director. L. To ensure ~~-the and p+~ ' ' of the Housing Element of the General Plan are implemented, the applicant shall requirements ~f Hawai`i County Code. Chanter 11 _ as it relatec to ?ffordahle hn»c;nQ ~omplia`nce with Chanter 11 hall be approved by the Admini~tratnr of the Office of Housing and Community Development ~ , ' ' , , prior to final Subdivision Approval for each increment of the Proi .ct- M. A Data Recovery Plan and Preservation Plan - shall be prepared for the review and approval by the Planning Director in consultation with the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD}. Proposed mitigation treatment (preservation in place or disinternment/reinternment) for burial sites within the subject property shall be approved by the Historic Preservation Division's Hawaii Island Burial Council before detailed mitigation plans are finalized for these sites. A copy of the approved Final Data Recovery Plan and Preservation Plan shall be submitted to the Planning Director prior to submitting plans for subdivision review and prior to any approval for any land alteration permits. N. Should any remains of historic sites, such as rock walls, terraces, platforms, marine shell concentrations or human burials, be encountered, work in the immediate area shall cease and the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD) shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DLNR-HPD when it finds that sufficient mitigative measures have been taken. 0. The applicant shall develop and submit a comprehensive public access plan for the subject property for review and approval to the Planning Director, in consultation with the Department of Land and Natural Resources in conjunction with Final Subdivision Approval. The public access plan shall provide for mauka-makai and lateral shoreline pedestrian accessways, ' ' um of four l41 on-site public parking stalls for users of the shoreline area, signage, and restrictions on use (if any). Such public access im rovements p. shall be completed prior to . . the subject property.3 2 ronose con i ions in ann~n ~rectnr S 1t10nS n Rarkarn»nrl anr~ RPM 3 Portion of 1/11/08 ommissinner Watanabe recnmmenriatinn 4~~~-7-~4~--~3 4852-2647-4242.2 DRAFT 3118/08 P~ Along the shoreline of the P_ronerty. all structures shall b het back from the shoreline~a ' ' one hundred (100~,feet. UVith the excetition of _Proiect entry features, 11 be set back a minimum of one hundred fifty (1501 feet from the Aknni Pule Hi~hwav r' 4 Portion of 1/11/OS Co mi~Sioner Watanabe recommendation. ~1-~-4 4852-2b4?-4242.2 DRAFT 3118108 The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation, fire, police, solid waste disposal facilities, and roads. The amount of the fair share contribution shall be the sum which is the product of multiplying the number of residential lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot, and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments. If the subj ect property is subdivided in two or more increments, the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed residential lots in each such increment. The fair share contribution maybe in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies. The fair share contribution shall have a maximum combined value of $ , . ' ~ ' ~ . . , . , . ' .976.69 ner single-family residential unit. The total a`m__ount shall be determined with the actual number of s~b~~~~l-~s~ according to the ~ ~ ~ ~ and payment provisions set forth in this ~e~~- P:~~4~ The fair share contribution n~,r single-family, res de ti shall be- as follows: 1. $ , , ~ 5.293.15 rr s e-family ~ ' entia unit to the County to support park and recreational improvements and facilities; 2 • $ . ' . ' ~ 232.42 erle-family residential unit to the County to support police facilities; 3 • $ . . , . . , 504.33 ,ner single- ami ly residential unit to the County to support fire facilities; 4. $ . , ~ • 220.80 ner single-f milt' residential unit to the County to support solid waste facilities; • ) , • - residential unit to the State or County to support road and traffic improvements. The fair share contributions described above shall be adjusted annually beginning three years after the effective date of the change of zone, based on the percentage change in the Honolulu Consumer Price Index (HCPI). In lieu of paying the fair share contribution, the applicant may construct and contribute improvements/facilities related to parks and recreation, fire, police, solid waste disposal facilities, and roads within the region impacted by the proposed development, subject to the approval of the director. The cost of providing and constructing the improvements required in Condition F shall be credited against the sum specified in Condition P(5}for road and traffic improvements3 ands Condition 0 shall be credited against the sum specified in Condition 1~,~(1 }for parks and recreation. For purposes of administering Condition the fair market value of land contributed or the cost of any improvements required or made in lieu of the fair share 4852-2647-4242.2 DRA~'1' 3/18/08 contribution shall be subj ect to the review and approval of the director, upon consultation with the appropriate agencies. ~ ~In lieu of actual construction of infrastructural improvements as required under ~nry~ifi^~~ ~ ~ u T ~'this~ord~i~, the applicant may enter into an agreement ~ y > > with the County to assure the County that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable by the Planning Director or appropriate agencies and approved by the Corporation Counsel. Upon execution of such agreement and/or filing of the security with the County, final subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the easements of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance. T. -Comply with applicable laws, rules, regulations and requirements of other affected agencies for approval of the proposed development within the subject property, including the Department of Health. IL An annual progress report shall be submitted to the Planning Director prior to the anniversary date of the approval of the ordinance. The report shall include, but not be limited to, the status of the development and to what extent the conditions of a royal are pp being complied with. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. . :If the Annlic nt shall reauire ~n additional extension of time. the Pla~nn, D,~rector shall submit the Applicant's request to the PlarLnin~ Commission and County Council for annronriatP s ~1 . nnf ?~?n rnm~~? n~~~~?nir ~n»~? nr +1c1l1rltlt~r.nn ~~c': r 51/11/08 Commi. ~ioner Wat nahe recnmmenr~atinn ~~4-~-~-~-6 4852-2b47-4242.2 I?RAFT 3118/08 4 . . . . X~ ~ Should any of the conditions not be met or substantially complied with in a timely fashion, the Director may initiate rezoning of the subject property to its original or more appropriate designation. ~~~-~-7 -4 42.2 DRAFT 3118/08 Document com arison done b DeltaView on Tuesda ,March 18, 2008 2:33:17 PM li~p~t: C:IWindowslTempINDlMyhrvold Conditions of Approval 97- Document 1 102 1 .doc C:1WindowslTempINDlMyhrvold Conditions of Approval 97- Document 2 102 SSL doc .doc Renderin set CB with Color 1~~~~~~ y a ~ r ~ y'.: •i.I~~ V a a 1 ~IE~E~?~-~- S le char e Format chan e Inserted cell Deleted cell Moved cell S IitlMer ed cell Paddin cell p ti ~ Count Insertions 42 Deletions 37 Moved from 0 Moved to 0 S le chan e 0 Format chan ed 0 Total chan es 79 t CHANGE OF ZONE ORDINANCE N0.97-102 KOHALA LLC -PROPOSED CONDITIONS OF APPROVAL A. The applicant, its successors or assigns shall be responsible for complying with all of the stated conditions of approval. B. The applicant, its successors or assigns shall be responsible for complying with all of the conditions of approval of the Special Management Area Use Permit for the subject property. C. The proposed development within the subject property shall consist of a maximum of twenty-five (25) residential lots (not including roadway or other such common area lots). Final Subdivision Approval of the proposed residential subdivision within the subject property shall be secured from the Planning Director within five (5) years from the effective date of this amendment. D. Restrictive covenants in the deeds of all proposed residential lots within the subject property shall prohibit the construction of a second dwelling unit on each lot. A copy of the proposed covenants to be recorded with the Bureau of Conveyances shall be submitted with the plans for subdivision to the Planning Director for review and approval. A copy of the approved covenant(s) shall be recited in an instrument executed by the applicant and the County and recorded with the Bureau of Conveyances in conjunction with the issuance of Final Subdivision Approval. E. In conjunction with Final Subdivision approval, the applicant shall construct the necessary distribution pipeline, service laterals, and fire hydrants, meeting with the requirements of the Department of Water Supply. No building permit for any of the residential structures shall be issued until units of water are available and committed to the subject property, as represented in the applicant's agreement with the Kohala Ranch Water Company (formerly Kohala Joint Venture}. F. Access to the subj ect property from Akoni Pule Highway and any improvements within the Akoni Pule Highway shall be constructed prior to Final Subdivision Approval, meeting with the requirements and approval of the State Department of Transportation. Such roadway improvements shall consist of, but are not necessarily limited to channelization of the Akoni Pule Highway intersection with a dedicated left turn lane and aright turn acceleration lane.l G. Roadway connections to the adj oinin arcel of the sub' ect ro ert 's southeast g p J p p y ern boundary shall be provided meeting with the approval of the Department of Public Works and shall be delineated on the final subdivision plat map for the subject pro ert . p Y ' l / l 1 /08 Commissioner Watanabe recommendation. 4852-2b47-4242.2 DRAFT 3/18/08 H. All interior roadways within the subject property shall be constructed meeting with the requirements of Chapter 23 of the Subdivision Code and with the approval of the Department of Public Works. I. All electrical and communication lines within the subject property shall be placed underground. J. A drainage study of the subject property2 shall be prepared for review and approval by the Department of Public Works, prior to submittal of plans for subdivision review. Drainage improvements, if required, shall be constructed or bonded meeting with the approval of the Department of Public Works prior to the issuance of Final Subdivision Approval. K. The applicant, its successors or assigns shall prepare a Solid Waste Management Plan prior to securing Final Subdivision Approval for the proposed development within the subj ect property meeting with the approval of the Department of Public Works. A copy of the approved Plan shall be submitted to the Planning Director. L. To ensure the Goals and Policies of the Housing Element of the General Plan are implemented, the applicant shall comply with the requirements of Hawai `i County Code, Chapter 11, as it relates to affordable housing. Compliance with Chapter 11 shall be approved by the Administrator of the Office of Housing and Community Development prior to receipt of Final Subdivision Approval for each increment of the Project. M. A Data Recovery Plan and Preservation Plan covering the proposed 25-lot development shall be prepared for the review and approval by the Planning Director in consultation with the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD). Proposed mitigation treatment (preservation in place or disinternment/reinternment) for burial sites within the subject property shall be approved by the Historic Preservation Division's Hawaii Island Burial Council before detailed mitigation plans are finalized for these sites. A copy of the approved Final Data Recovery Plan and Preservation Plan shall be submitted to the Planning Director prior to submitting plans for subdivision review and prior to any approval for any land alteration permits. N. Should any remains of historic sites, such as rock walls, terraces, platforms, marine shell concentrations or human burials, be encountered, work in the immediate area shall cease and the Department of Land and Natural Resources-Historic Preservation Division (DLNR-HPD) shall be immediately notified. Subsequent work shall proceed upon an archaeological clearance from the DLNR-HPD when it finds that sufficient mitigative measures have been taken. 0. The applicant shall develop and submit a comprehensive public access plan for the subject property for review and approval to the Planning Director, in consultation with the Department of Land and Natural Resources in conjunction with Final Subdivision Approval. The public access plan shall provide for mauka-makai and lateral shoreline a Proposed conditions in 12/26/07 Planning Director's Additions to Background and Recommendation Reports. 2 4852-2647-4242.2 DRAFT 3/18/08 pedestrian accessways, a minimum of four (4) on-site public parking stalls for users of the shoreline area, signage, and restrictions on use (if any}. Such public access improvements shall be completed prior to submittal of any application for the first building permit for asingle-family dwelling on the subject property.3 P. Along the shoreline of the Property, all structures shall be set back from the shoreline a minimum of one hundred (100) feet. With the exception of Project entry features, all structures shall be set back a minimum of one hundred fifty (150) feet from the Akoni Pule Highway right-of-way. 4 Q. The applicant shall make its fair share contribution to mitigate the potential regional impacts of the subject property with respect to parks and recreation, fire, police, solid waste disposal facilities, and roads. The amount of the fair share contribution shall be the sum which is the product of multiplying the number of residential lots proposed to be subdivided by the amounts allocated hereinbelow for each such lot, and shall become due and payable prior to final subdivision approval for any portion of the subject property or its increments. If the subj ect property is subdivided in two or more increments, the amount of the fair share contribution due and payable prior to final subdivision approval of each increment shall be a sum calculated in the same manner according to the number of additional proposed residential lots in each such increment. The fair share contribution maybe in a form of cash, land, facilities, or any combination thereof acceptable to the director in consultation with the affected agencies. The fair share contribution shall have a maximum combined value of $10,976.69 per single-family residential unit. The total amount shall be determined with the actual number of units according to the calculations and payment provisions set forth in this condition. The fair share contribution per single- familyresidential unit shall be as follows: 1. $5,293.15 per single-family residential unit to the County to support park and recreational improvements and facilities; 2. $232.42 per single-family residential unit to the County to support police facilities; 3. $504.33 per single-family residential unit to the County to support fire facilities; 4. $220.80 per single-family residential unit to the County to support solid waste facilities; 5. ~ $4,703.06 per single-family residential unit to the State or County to support road and traffic improvements. The fair share contributions described above shall be adjusted annually beginning three years after the effective date of the change of zone, based on the percentage change in the Honolulu Consumer Price Index (HCPI). In lieu of paying the fair share contribution, the s Portion of 1111/OS Commissioner Watanabe recommendation. 4 Portion of 1111/08 Commissioner Watanabe recommendation, 3 4852-264?-4242.2 DRAFT 3/18108 applicant may construct and contribute improvements/facilities related to parks and recreation, fire, police, solid waste disposal facilities, and roads within the region impacted by the proposed development, subject to the approval of the director. The cost of providing and constructing the improvements required in Condition F shall be credited against the sum specified in Condition P(5) for road and traffic improvements, and in Condition 0 shall be credited against the sum specified in Condition Q(1) for parks and recreation. For purposes of administering Condition 0, the fair market value of land contributed or the cost of any improvements required or made in lieu of the fair share contribution shall be subject to the review and approval of the director, upon consultation with the appropriate agencies. R. In lieu of actual construction of infrastructural improvements as required under this ordinance, the applicant may enter into an agreement with the County to assure the County that the infrastructural improvements will be constructed together with the appropriate bond, surety or other security deemed acceptable by the Planning Director or appropriate agencies and approved by the Corporation Counsel. Upon execution of such agreement and/or filing of the security with the County, final subdivision approval for the subject property or portions thereof shall be granted prior to the actual construction of required infrastructural improvements. S. Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for the imposition of exactions or the easements of im act fees, conditions included herein shall p be credited towards the requirements of the Unified Impact Fees Ordinance. T. Comply with applicable laws, rules, regulations and requirements of other affected agencies for approval of the proposed development within the subject property, including the Department of Health. U. An annual progress report shall be submitted to the Planning Director prior to the anniversary date of the approval of the ordinance. The report shall include, but not be limited to, the status of the development and to what extent the conditions of a royal are . pp being complied with. This condition shall remain in effect until all of the conditions of approval have been complied with and the Planning Director acknowledges that further reports are not required. V. If the Applicant shall require an additional extension of time, the Planning Director shall submit the Applicant's request to the Planning Commission and County Council for appropriate action.5 W. Should any of the conditions not be met or substantially complied with in a timel . y fashion, the Director may initiate rezoning of the subject property to lts original or more appropriate designation. S 1/11/08 Commissioner Watanabe recommendation. 4 4852-2647-4242,2 DRAFT 3/18/08 i ~ Ir IT,I., I~C~ ~~'~l~1T~NDI1~ ~ COUI~Tx' Ol' Il;~ft'1{lI M STA~'r o~ t~r~~~Tr~I~ ORDINANCE N0. t~;~" .,,r_, AN ORDINANCE ,r1MENI)IIvG THE COi11:37,'Y OF HAWAII GI:;NERAL PLAN gRD1N~ANCi; NO. 439, BY IN ORPaR11T;r3G TfIF SI~;1'Y-~P?VE G 5 ,~MF.NI)I~iIaNTS TO TF~!'s G :2~JERAL . PLA~1 LAND USu PATTI;F~N ALLC.~'ATrON MAP AND 5IX (6 ~ A~iF;NI)MENTS TO TFiE GENEEAI, PLAN POLICY DOCUI~S}::NT Ii~~ YTIE~TED fIY T[IF' 1'LANt~ It~1G DIRECTOR , Ass REFI, ACTED ZN FINS RLFC~RT ENTITraF;I1, "COUN"'Y OF HAjtrAIT GENERAL FLAN REVYS ZON F'RC~GkAId, t10VEMAER 7S. " DE IT ORDAINED BY THE COUNTY COUNCxL OF THE COUNTY OF HA~~IAII, ,STATE OF HA~dAII: SECTION 1. The County of Hawaii General Plan, Ordinance No. 439, is hereby amended by incorpar~~ting the sixty-dive X65? amendments to the General Plan Land Use Pattern Allocation n7ap and the six tG~ amendments to the General Plan policy document initiated by the Planning Director, as reflected in his report entitled, . • "County of Hawaii General Plan Revision Program, November 1978." The specific amendments to the General Plan Land Use Pattern Allocation map are: . A. Puna District . 1. Add Alternate Urban Ex,~an~sion: Kea'au -surrounding the existing urban arEa 2. Orchards Alternate Urban E~xpan.sion to Low Donsi~ t~t)rban Development: Hawaa.i~~n beaches/Parks/Shores ,Subdivision • b within and surrounding the existing subdivisions 3. Alternate Urban F:xpanSion to Medium Density U De____vel_o~me t: ttawaiian Beaches 'Subdivision - wi ~hir~ the sub3ivi.~ion closer towards the ocean ' 4. Shift Alternate Ur.b~n Fxpans.~~n: Pahoa ~ .shift the designate along I'ahoa~-Ka~oha Road to around the village core 5. Orchards to In~u tr~~: Kea'au ~ mauka of the Voloano . Highway adjacent: to the Puna-South Hilo distr.ct bounc~aCy 6. Alternate Urban Ex~~ nsion to R~sor.~: Papai Say -within the Papai Say area t r ~ t 8~ Sr.,~,xt:l7 Iii~.o I"ax,,t'.r~.c't: ..r..,.._.~....,.....n.......~ ry 7. i~!~~sart i:n ?nciu~~tri.a~l: 1~I~.,.o ~ ate }~o~.h sides of I;alan~.anaolo 1 f\"J~.11.Y~.rnY~ A1w'.ry~.rl.•W~IY'~r0lr.rr.! ~LVenuo in the v.ic~.n i ty ref l~;r~~e~•'s F3Narh Rem rt to u~en: Hilo » Leleiwi beach Park and Richardson .Estate areas 9. R~ s or t~ to Low Dan s i ter Jx i7~ Pve 1 o~rae t : Hilo - H.i 10 Yacht: Club/LF:letiwi Eeach Park/Kichardson Estates areas lo. In~lustr. ial to : Hilo -surrounding the pond loeatod on tY?e tnauka s,icie of I~alanianaale Avenue and James Kealaha Park 11. Alternate C,Trban Expansion to Medium Density Urban neyelopmen~ r Hi] oo - mauk of Itamohana Street in the vicinity of the Ponahawa~. Street extension 12, Intensive l~gricultur. e Alternate Urban Ex~an.s~on to Low Density Urban lievelopmFnt: hulaimano - on the mauka and - makai sides of the Hawaii welt Highway surrounding the existing ur}aan area. . 13. Low Density Urban Development to Medium_Densi.ty Urban Development: Kulaimano along the mauka side of the Hawaii Welt Highway 14. Delete Al ter Urban Expansion: Kaumana -mauka of the existing Park Hokulani development (Hilo Country . Club Estates) 15. Alternate Urban Expansi.an to' Low Densa.ty Urban Developt~~ent: . Kaumana -within the Pa1Nk Hokulani development 16. Alternate Urban Expansion to Medium Density Urban . D,_,_ev,~e~lopment: Kaumana -within the Park Hokulani development 17. Open to Intensive Agriculture: Kaumana -site of the - former. Hilo Country Club Golf Course C. North Hilo District 18. Intensive~x~ _iv_e_ agriculture ~to Low Densit~Urklan nevelopment: Laupahoehoe -Adjacent to and on tl~e Hilo side of Laupahoehoe High & Elementary School 19. Low Densit_ y Urbane o ment to Medium Densa.ty Urban Development: Laupahoehoe -Adjacent to and on the Hila side of Laupahoehoe High ~ Elementary School 20. In~ten_.c~ i ye Extensive ~'~c~r icul tur. e to L~Den~ty~ Ur~~~~n Aevelo~„/meat: O'okala - makai of the Hawaii Dolt Highway ~~~rMrrr iii rr~ 21, Low nen:~it~rr~an Iaevelo.~mPn~ to C~nserv~~t~icn: Laupahoehoe Gulch within the gulch area m~~uka of the Laupahoehoe Point Leach Park w ~ ~w . , . cl ITI rt } l1 c1 r~ r t: Y C; l: W........, ..,......r.,...~. , 22• Intr~»ciVe 1~ ric.~~l.ture to Industr. i~~1: Hone};a' a r+r+~.wr.r.+r...r..wwrw.w~ ...r area of t:hc: ~~x~..~tinc} m~~cad~~rnia r~~ut.~ pxoce.~sing cor~~}~lex 23. Alternate Uri ~,x~ns to L~~w Den,sf.t Urban l.~c~v Y e l o men t. Hono};a' a - m~~uka of the }~awaii belt Highway in he vi.ca.nit of the I~iac,?aii pelt Hi.c~1lw~~y -Old I•zamalahoa Hi hwa y junction g Y 24. Add Alternate Urban Dx~pan Hono~ca'a -mauka of the .r~..__...._.~.,.._...._._..._.._....,.,...~, Hawaii Dolt Highway and ~~bove item no.' 2 3. 25. ,Lc~w_Densil.~ Urban Develo mPnt to I~iedi.um Dens' _ ity Urban D~~vElo ment: Honoka' a adjacent' and mauka of the existing ~gediurn Density area (commel-cial core} 26~ Intensive ~1 riculture to Low Density Urban Deve~,o ment: Pa'auilo -adjacent to and mauka of the existin uru g an area 27. Add Alternate Urban Expansion: adjacent to and makai of the existing ur.b~zn area 28. Delete Alter.nat_e Urban ~x ansion: Pa'auilo -Hilo side of the existing urban area E. No~rt /South Itohala Districts 29. Alternate Urban Expan•~ion to Low~Densit Urban Develo ment: ~ Hawi -area of the Kahei Houselot.5 Subdivision 30. Delete Alternate Urban Expansion: Waimea - on the south side of Mamalahoa Highway and on the Hilo side of Waimea Vi 11 ag e 31. Delete Alternate Urban Expansion: Waimea on the north side of Mamalahoa Highway and on the Hilo side of Waimea Village • 32. Alternate Urban Expansion to Low Densit Urban Develo men _ Waimea -along both sides of the Kawaihae Road 33. Delete A1ter.nate Urban Expans on; Kawaihae -northwest of Kawaihae Har.bar and on the mauka side of the hi hwa~ 9 ~ 34. Add Alternate Urban Expansion: Kawaihae -adjacent and . to the north of the Kawaihae Village housing development . 35. Delete Alternate Urbar, Expansion: Kawaihae -mauka of the Queen Ka'ahumanu highway and the Hapuna Beach Park 36. Add Alternate Urban Ex ansion: Kawaihae - a luny the south or Kona side of t:1~c Kawaihae Road in the vicinity of the Kawaihae Road-Queen Ka'ahumanu Highway junction -3- r 3`, g9r~~di~.~m l)~~~a~;,it'l.~lY'i~':~f1 1~~,,,o]r~pi~~7~3!~t~./l?a~a l~c.n,~zi~~~ U~°~~~;~~,~~ ~ ~.rr.~,....,~...,, • w...r «.~..r.rw..w ~,,.....~r.v«r~:w.+•.~~......rw...r. • ..,w....~.u.w.~:~~...•w•wr.nr..r.w.•. .rwra... w.~w.....r.w...i....wr 1~t3~~r~:l.{~M:~:r~+~~n i. i~n f:~t-<~•n;, i tie I.c~~r ~i.c•tt ] t't~rF~?~I~1 ~r~r'Clt~~ 1:rti ta~~}.~~.n ):A~1~,-~~~.,:i ~~r~ : T;:-~taa ilr~~c~ •w t~Eau}~a of Mlle Queen K~~'~~~hu~~~~t~~.i ~~Iigi~~~~.~y ~~nd ~~t the,,SOU~rhr~asi.~ ^arner o~ tl~e ~?u~~',~ K~7'ahurnanu-1Catia~ii.lldc: Road junctior~. ~Fi. Resc~ri:/~ied.i.um I)c,~n;,ii:~il~~n • D~lo mPnf Lo~ens t~ .......W.r.........~....r....._...._,..~._...~...._..... Urb«~~ l~c;vcsl.~mrnt~ to Ixtc~n~,i.~lf~ ~'~r,.rir..ult.ur.r ?t~r~ to Ur~har?~l~x an~a.or~: ~'uako W ;~etween the Fua}.o Dc}ach ,Lots ~~ubdivisioti ar~d the Queen Ka' al~umanu Highway 39. Intensive ExtenM~.vP A,~ icu].tur a to Ind«str. ial : 6~Jaimea - r.rr./~Yrirlrl .~.w~.wr.ww.rrrrr.r.. wrlrrr•r~Y.~1w rrrrr..~M...YiYrwrr~rr Wair~ca~•Kohala hir.p~~rt area, including the airport 4(i. Industrial to Fxtc~nsive Ac~ri.cuiture: ~~aimea - mak~~i of the l~ian?alahoa ~Iic]hway and tocaards the south of taaisnea Village 41. Extensive l~qr. icu.lture to Industrial : Waimea ma};ai of the Mamalahoa f3ighway across from the Waimea-Kohala Airport 42. 0„~en to Indu,~trial: Towards the Kona side of the Waikoloa Village Road 43. Extensive Agriculture to men: Waikolaa -Towards the ~~rr.~rrrlrrr.~r .wlr li r#r.r~wrrr.~wr.q~1 Kona side of the ~~laikoloa Village Road along the aouth Kohala/North Kona district boundary 44. o~er~ to ExtensivP_Ac~r. i.culture/Alternate Urban Fx~ansion: `~laikoloa - alonr~rr~the Kona side of the ~~~aikoloa Village Road and makai of the village F. NorthfSouth Kona Districts . 45. .Add Alternate Urban Expansion also Low Density Urban ..r . •+wr.rrrrrrrrwr~w ` wrr.r.r~nrw ~n.r~r.rr r. rr Devel ~rnent to E~rtPnsive,rAgricultur. a/Alternate Urban rlrl~r•r.r • r rrrr. i ~~r~rwrr ¦ i~rwr.rrrrwwrrr-r Expansion: I{eaulYOU -mauka of the new ~Alii Highway and . the Keauhou Golf 6~ Country Club 46. Add Alternate Urban Expansion: Keauhou -mauka of rwr rnrrrrrrr r.rrr r Kahalu'u Beach 'ark between Alii Drive and Kuakini Highway 47.. Medium Density Urban Development/Alternate Urban Expansion ~rrrrr r r-I r r~r r I~~ r.rw.rr.~.rr~~~~ r rr. r..r rrrw.+~. rrrwwrw to High, Density Urban Development: Kailua -along Palani Road in the vicinity pf the existing 'shopping center 48. Industrial to Medium_Density Urban Development: Kailua adjacent and on the Kaw~~ihae side of the King Kamehameha Hotel 49. A-lternate Urban Ex ap_ n.~ion to Industrial: Kailua -adjacent and to the Kawaihae side of the existing Industrial. Subdivision 50. Conservation to Industr.ial.: KEalakehe -mauka of the Qucen Ka'a}lumanu flit}l~~way in thy; area of the Kea].t~itiohe Rubbish Dump ~4- l 5 i:. ~'nc~il.: t:r 1. i;o ~'arl,.3c~r~'~°? i::a.c;r~ : }~e~~~cl~ole » ~-~rc7urlc~ t;hca Kc::_~~ll0~1 r'~~.r~~~~~l~t ~~1.onq t11e ~?uo~~n I~~~' ~:1~',lil11~11lu 1licrl~w~,y • r~~w ~~l~?n 1 ~.F~1 ~~'~'J~'111 1)r't!!.'.~.r) . tllent ~0 ~f'd] lull D('J1~~i~CJrb~~11 ...r..............~._..~.. .r..................,.._._.,.M.. Dc.~vc:l.uZ~rclr~;~t: I~~c:al~,k~~~he - -in the vicinity c.~f the _...._...~..._w Keal~~~.c:~~c School 53. Add A1t~rnate Urban Fx an.5i~n: Kalaoa/K~~1oko mauka area M ~~lrang both sides of the Flaalaii Belt Highway .in the vicinity of the Kona Palisades/Kong Coastview Subdivi~i~rys 54. Delete Alton. Hate ilrban Expansion : Keahuc~lu/Keopu ar. ea » above ~:ailua and on the mauka and makai sides of the Old Mamalahoa Highway 55. LQ~ Den,s.it_y~. Urban_D_evnlo~m~en~t to Orchard.: Mauka Honokohau - at the Palatii Road-Old Mamalahoa Highway junction 56. Con.ser.vation to Extensive Agr. icul.ture: Ke-whole -along ----r--,-.-~-------. - the mauka side of the Queen I~a'ahumanu Highway and Ke-ahole Airport 57. Delete 111 ternat~ Urban Expand:' Kealakekua -makai. of the Kealakekua urban area and above the Kealakekua Bay 58. Add'Alternate Urban Expansion: Kealakekua -makai of the Kealakekua urban area ' 59. Law Dens i. ty Ur. ban bevel opr~~ent to Orchards : Honaunau - along the City of Refuge Road 60. A_1_ternate Urban Expansion/Or.chards to Conservation: Miloli'i within the existing M' oil li'i Village and surrounding area ' G. Ka'u District ' 61. Add Alternate Urban Expansion: Pahala - suxr.ounding the mauka side of the urban area 62. Low Den.S i ty Ur. ban DPVelonme t to Medium Dens i t~ Ur. ban Development: Pahala - adjacent to and on the makai side rr of the existing commercial core 63. Low_Density Urban Development to Orchards: Pahala - along the makai of Iiawai i Del t Highway 64. Rem to _M_edium Density Urban Development: tdaiohinu - sa~te of the existing Shirakawa Hotel 65. Extensive A ricult~ir. ~Orchard.s to Conser.vat.ion: Hawaii Volcanoes Natiocial Park -makai of the Volc na o ~Iouse Hotel _5- 't'he "~~~~ri i`ic r~ntcr~c3mE.:~nt,s t~o t:hc: ~r?~~Gr~l. ~'l~~n ~ol~c~ dor~~~ncnt I ! a e . . Add ~~ew scci:ion cr~l].ed ti.hF E~1er~~Flemcnt, ......~...r. 2. Amend the critera.a ro.r Lwow De»~t~U~ Jaeyel.o meet. 3.. Amend i;he Pap~~i kE.SC~rt design~~tion from Minor Re.~ort to :C,~ t c rrned i t e fi c, car t, .....r.._.r.r......._.~,._,_,_ .~.,...y_..._......._._..._._....--........_.r._...r. Ar~~end thc~ Kaupulc~hu Kona Village) Resort design,3tion from kc.,._.r.k:} to In~1Pdiate Resort. 5. Amend one of t7~e Tra~~ n~,r ~.on Element Crl~rses of Action for. the South ~Iilo district, ' G. Add a definition for. the term Alternate Urban Fx.,ansic~n SECTION SeVerak~ility. Tf any provisions of ti~is ordinance or the application thereof to any person or circumstances is held . .invalid, such invalidity .shall not affect other provisions or. a 1'c pp ~ a Lions of the ordinance which can be iven effe g ct without the invalid provision or application, and to this end the rovis'ons ' p 1 of this t!. ordinance z~~e declared to be severable. SECTION 3. This or.dinance~shall take effect u on its a P pproval. :s INTRODUCED BY: COUNCILMAN, COUN`rY OF HA AW II ~ Hilo, Hawaii Date of Introduction: March 7, 1979 Date of 1ldopt~on: July 5~ 1979 q Date Effer.tive: July 16, 1979 M {~r1 _ ~..uu~ _ C rMrrr..rr PLANNING COMMISSION . _ Planning Department ' . County of Hawaii BEARING TRANSCRIPT May 7, 1981 A regularly advertised ublic meets bein initiated bP hearing on the chap a of zone amend- the Plannin Direct con is s etween t e Genera Pan la current zoning esivna ,ire was called to order at the Councilroom, County Building, South Hi 7:16 p'm' in Bert H, Nakano presiding. lo, Hawaii, with Chairman PRESENT: Bert H. Nakano ABSENT: Glenn Frias George Ponte Clyde Imada Ex-offs .Roy Kagawa cio Member Fred Orita H. William Sewake William J. Paris, Jr, Charles H. Sakamoto Tina Whitmarsh Sidney M. Fuke, Planning Director . Norman Hayashi, Staff Planner Brian Nishunura, Staff Planner Donald Tong, Staff Planner Galen Kuba, representing Ex-officio Member E Thomas Yeh, Deputy Corporation Course dward Harada 1 and aPPm~mately 60 people were in attendanc e C~IAIRMAN: Next on the agenda is a following change of zone amendments public hearing on the Planning Director as a result of being initiated by the Plan land use designations and thconflicts between the General . e current zonfng.designations: A. Waiohinu, Ka'u - Shirakawa Hotel Change: Resort-Hotel (V-1,5) to Villa e • Area: 3.8b+ Acres 9 Commercial (CV-20) ~TMK: 9-5-01:25(por.), 30 & 44( or. P ) B. Laupahoehoe Gulch Area, North Hflo Change: Agricultural (A-20a) to 0 en Area: 30.75 Acres P (0~ TMK: 3-6-02:32 and 3-b-04:1 & 5 C• Reeds Bay Area, South Hilo Change: Resort-Hotel (V-S-, 75) to Gen . Area: 7.83+ Acres eral Industrial (MG-20) TMK: 2-1-b6:2 ~ 3? 4, 11, 12, 13(por.), 14, 16(por.) 17(por.), 18-24 and 2-1-07:8 & 9 ' D. Keaukaha Area, South Hilo 1~ Change: Resort-Hotel (V-S-.75) to Agricultural Area: 1.7+ Acres CA-5a) TMK: 7-1 13:146(por.) and 2-1-15:3(por.), 4 6 7 (por. ) ~ Cpor. ) & 2.. Change: Resort-Hotel (V-S-.75) to Open (O) Area: 11.8+ Acres Tom= 2-1-X7:19, 21, 22, 51, 58 & 59 and 2-1-19:10 & 1 5 3. Change: .Resort-Hotel (V-S-.75) to Sin le Famil Re CRS-S-10) g Y sidential Area: 34.26+ Acres TMKs 2-1-1~:2, 29, 31-41, 42(por,), 43, 44, 46, 47 49 50, 52, 53 & 54; ' ' 2-1-17:20, 23-35, 52, 56, 61, 62 & 63; 2-1-18:27, 28 & 35; and 2-1-19:14 Don, you want to start? TONG: Mr. Chairman, the back round r you at the preliminary hearing. I'llg roc epart was given to tions; and t'll go into them be inn'n p eed into the recommenda- Shirakawa Hotel rezonin , unless 1 g with the Waiohinu, Ka'u - you would like on the back r You have any particular questions g ound. FUKE: Donald. TONG: Yes. FUKE: What you should do is ust ' the background re ort for th j provide a summary of P e benefit of the public. The Com- missioners already have a copy of the recommendations and our positions have been rather articulated in previous situations. TONG: All right. Concerning the first item on the a end the Waiohinu rezoning, it involves land located in Waioh' g a, shown on the map. Basically, it's the Shirakawa hotel rouerts • which comprises of 3.8 acres, and it's about 500 .P P y' CHAIRMAN: Don, will you use the mike, please. TONG: And it's located about, oh, about 500 feet west of the park and about the same distance from the sharp 'unction at Mamalahoa Highway. ~ Basically, the General Plan had recommended; in 1978, that the area be changed to medium density urban, due basically to the reason that the area, 3.86 acres,~is much too small for the t e of resort development that was being sought. The fact that YP Punaluu, a nearby sea coast resort development, was comin u and also that this particular area, b g P village 20 (CV-20) zonin would ~ Y granting it commercial g. still permit the desired hotel use to be situated on the premises. So with these factors in mind, the Commission, excuse me, the Director is proposin that the zoning be changed to CV=20 from its, present resort 1.5. Basically, this is the background of the situation -2- i BILL N0. 7 7 2 COUNTY OF HAWAII -STATE OF HAWAII ORDINANCE N0. `~B4 AN ORDINANCE AMENDING SECTION 7.29 (THE CITY OF HILO ZONE MAP), ARTICLE 2, CHAPTER 8 (ZONING CODE) OF THE HAWAII COUNTY CODE, AS AMENDED, TO CONFORM WITH THE COUNTY OF HAWAII GENERAL PLAN, AS AMENDED ON JULY 5, 1979, BY CHANGING THE DISTRICT CLASSIFICATION FROM RESORT-HOTEL-SAFETY (V-S-.75) TO OPEN (0) AT WAIAREA, SOUTH HILO, HAWAII. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section ?.29, Article 2, Chapter 8 (Zoning Code) of the Hawaii County Code, as amended, is further amended to add a new subsection, to read as follows: 29 (zzzz ) . The district classification of the approximately 6.92 acres of land situated at Waiakea, South Hilo, Hawaii, covered by Tax Map Key: 2-1 -17:19, 21, 22, 51, 58 & 59 shall be Open (0) . The area is further described as being along the north side (makai) of Kalanianaole Avenue between Reaukaha Road on the west and Lokoaka Street on the east. All as shown on the rnap marked Exhibit "A" and by reference made a part hereof." SECTION 2. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 3. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL MEMBER, C TY OF HAWAII Hilo, Hawaii Date of Introduction: April 21, 1982 Date of Adoption: May 5, 1982 Effective Date:. May 5, 1982 t _ _ _....z . . . i ~j _ o w R~SOr~Y ~ Ho~CL ~ ~AFCT~' ~ -5-.75) TD t~pCN (0) ~ ~ ~~'A AC ~ W A F, ~ ~ w~ ~--Kt~l.oH^ . ! BeACn l I'~+tK • r . o 9 w O ~ a ~ ~o.~H l.okOAK/1 W 9 ~IpND Q L M . e t . 1 , Jc • . P pQ,~~ I~(~N ~N N o ~M~N~ AMC M~ 1' N0. 10~- '•t'D SECTION 7.~.~ ~'1'htC clTy ©F• HILo zoNc F') AI~T1~l.C CHApT~~ a CzoN~N~ Oopc) of T{~E f~tAWAiI o NT'Y CoD~, ~,s AMCND~D, ~3y ~t1AN~INC `Tf-tE b15`Tt~i ASS! ~I~~TIaN TOM ~C~OIeT-l~10TC-l~-SAf'C'Ty ~V-5 :~5 'To opCN ~o AT WAIAK~A, SoUT~ HIU~, h1~Wr~i 1. DATA D PUBI.iC H~AI~~NG = MAy 7, 161 ~ DUNE l~sl EFF~ IVC- DATA = MAC' 5, !JB''c pt~DiNl~ C~' Nur~l~cr~ ~ 7e4 PR~f'AI~E ~ I°~ANNING DCPAf~TM~N`T CvUNTy OF ~tAWAII TAX MAP Cy ~ 2 - I -17 ~ ~QJ, ~ I, c''.2, 51, 58 4 59 ~X 1~ I IT . _ R~ o.. Hilo, Hawaii Hilo, Hawaii Date: Aril 21 1982 Date: May 5, 1982 FIRST READING SECOND b FINAL READING - AYES NOES A/E AYES NOES A/E Dahlberg X Dahlberg X De Luz X De Luz X Dorni ngo X Domi nqo X Fujii X Fujii X Hale X Hale X Kawahara X Kawahara X Lai X Lai X ( Schutte X Schutte X Chr. Yamashiro X Chr. Yamashiro X 7 2 0 a 1 0 Publication Date: Publication Date: ~IJN ~ _..._.ti.. We do hereby certify that the foregoing BILL was adopted by the County Councf 1 and published as indicated above. ~,~~~~V~~ tQ F ~ on.~ ~E~:~~.ITY ,v ~ un c i a rman cR~ ~K;a~~~; ~ i ~ COUNTY U"r~ Iil`VY~~ I ~ . ~.-l. / ........MAY., 5..1.°82...... County C er I ~a~te . i Approved this day of , 19~. Bill No. 772 Reference: PC-104 r, Count o await M. B . No. Ord. No. t ~ ~ ~ BILL N0. 773 COUNTY OF HAWAII -STATE. OF HAWAII w ORDINANCE N0. AN ORDINANCE AMENDING SECTION 7.29 (THE CITY OF HILO ZONE MAP} , ARTICLE 2, CHAPTER 8 (ZONING CODE} OF THE HAWAII COUNTY CODE, AS AMENDED, TO CONFORM WITH THE COUNTY OF HAWAII GENERAL PLAN, AS AMENDED ON JULY 5, 1979, BY CHANGING THE DISTRICT CLASSIFICATION FROM RESORT-HOTEL-SAFETY (v-S-.75} TO OPEN (0) AT WAIAKEA, SOUTH HILO, HAWAII. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 7.29, Article 2, Chapter S (Zoning Code) of the Hawaii. County Code, as amended, is further amended to add a new subsection, to read as follows: "7.29 ( aaaaa ) . The district classification of the approximately 4.88 acres of land situated at Waiakea, South Hilo, Hawaii, covered by Tax Map Key; 2-1-19:10 & 15 shall be Open (0). The area is further described as being along the north side (makai) of Kalanianaole Avenue between the northerly extension of Oeoe Street on the west and Leleiwi Street on the east. All as shown on the map marked Exhibit "A" and by reference made a part hereof . " l . . . r SECTION 2. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of thf s ordinance. sECTION 3. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCII, MEMBER, LINTY 0~ HAWAII Hilo, Hawaii Date of Introduction: April 21, 1982 ~ Date of Adoption: May 5, 1982 Effective Date: May 5, 1982 _2_ i , 1 t x$ ~ ~ ~ . 0 z= ~ ~ hU w ~so~'1' H oTCL - 5t~~~'T y ~F~~ ~ ~w V-s -.75) 7a oP~N (o) ' L _ j' P AhC~= 4.88 AC~G~ I J ~Y ~a ' ~ ~ o ~ ~N~ Q M~NbM~N~' T~tC ZONING CdD~ P~ ~IYICNDM~N~' N0. 105 T4 +C`tioN 7.2J ~Tf~~. GI1'7' 0~ ~til~ zoN~ MAp) A~rlc~c Ch1 - S (zoNINQ ~Op~7 afW T~f~ f`tAWAII COUNTY COd~, AS ~tM~ = , ~3y C~tANGING `I1-tC oM ~ • HDT~L s~~+~ Ty ~Y-~-.~5) To or~CN (o) A'T ~ ~ , I'tAWAII. DATE 0~ PUBLIC HEP~IQINQ : MAy ~ IJ ~ ~ t~U I,De~ 4 ~F~CC'1'IVC bATC ~ MA7' 5, 1.~8z OteDIt~ANCC NUMC3~1~ = 7 5 pI~CpArCD 87' = PI.ANN IN ~cPARYM ENT COUNTY ~ HAWAII , ' = 10, 15 ' ~xl~ ~ C31"i" f Hilo, Hawaii Hilo, Hawaii Date: Aril 21 1982 Date: May 5, 1982 FIRST READING SECOND & FINAL READING AYES NOES A/E AYES NOES A/E Dahlberg X Dah Iberg X De Luz X De Luz X Dorm nqo X Domi nqo X Fujii X Fujii X Hale X Hale X Kawahara X Kawahara X Lai X Lai X ~chutte X Schutte X Chr. Yamashiro X Chr. Yamashiro X ~ 2 0 8 1 0 Publication Date: Publication Date: JUH 8192 We do hereby certify that the foregoing BILL was adopted by the County Council and published as indicated above. r~~PROVED as to unci irman i ~ MAY ~ 198Z ~ County C er Approved/ this day of 19~. Bill No. 773 Reference: PC-104 ayor, County of Hawai M.B. No. ord. No. I~ BILL H0. 774 COUNTY OF HAWAII - STATE OF HAWAII ORDINANCE N0. "i8~ AN ORDINANCE AMENDING SECTION 7.29 (THE CITY OF HILO ZONE MAP), ARTICLE 2, CHAPTER 8 (ZONING CODE) OF THE HAWAII COUNTY CODE, AS AMENDED, TO CONFORM WITH THE COUNTY OF HAWAII GENERAL PLAN, AS AMENDED ON JULY 5, 1979, BY CHANGING THE DISTRICT CLASSIFICATION FROM RESORT-HOTEL-SAFETY (V-S-.75) TO SINGLE FAMILY RESIDENTIAL- SAFETY {RS-S-10) AT WAIAKEA, SOUTH HILO, HAWAII. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. Section 7.29, Article 2, Chapter 8 (Zoning Code) of the Hawaii County Code, as amended, is further amended to add a new subsection, to read as follows; "7.29 ~bbbbb-1) .The district classification of the approximately 43,836 square feet of land situated at Waiakea, South Hilo, Hawaii, covered by Tax Map Key: 2-1-19:14 shall be Single Family Residential-Safety {RS-S-10). The area is further described as being along the north side (makai) of Kalanianaole Avenue between the northerly extension of Uwau Street on the west and Leleiwi Street on the east." SECTION 2. Section 7.29, Article 2, Chapter 8 (Zoning Code) of the Hawaii County Code, as amended, is further amended to add a new subsection, to read as follows: "7.29(bbbbb-2).The district classification of the approximately 35,800 square feet of land situated at Waiakea, South Hilo, Hawaii, covered by Tax Map Key; 2-1-17:24 shall be Single Family Residential-Safety (RS-S-10) . The area is further described as being along the north side (makai) of Kalanianaole Avenue between Lokoaka Street on the west and Akepa Street on the east." SECTION 3. Section 7.29, Article 2, Chapter 6 (Zoning Code) of the Hawaii County Code, as amended, is further amended to add a new subsection, to read as follows: "7.29 ~bbbbb-3},The district classification of the approximately 63,470 square feet of land situated at waiakea, South Hilo, Hawaii, covered by Tax Map Key: 2-1-17:20 shall be Single Family Residential-Safety {RS-S-10). The area is further described as being along the north side ~makai) of Kalanianaole Avenue between Keaukaha Road on the west and Lokoaka Street on the east. All as shown on the map marked Exhibit "A" and by reference made a part hereof." SECTION 4. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 5. This ordinance shall take effect upon its approval. INTRODUCED BY: . COUNCIL MEMBER, OUNTY OF HAWAII Hilo, Hawaii Date of Introduction: April 21, 1982 Date of Adoption: May 5, 1982 Effective Date: May 5, 1982 t -2- ~ p SUl35~G`1'ION 7.2~ bbbbb--I ~o o ,i ~~50t~T_ h4TCC. -SA~ETy . z (~-5--,75 To ~IN~LC C=AMi~y ~ ~ ~ 1~C51 i7CN7 f Al~ -sAAjc ~T~' fey -s • l o u A~~A = 43, ~ S Q , N ' SU~35~CTION 7.~~ (bb bbb `2 W A~VL1 ~ R~Sot~~ - >-fio`TC-L ~ s CTT i ~ ' ~ ~ ~ .75) TO 51 NC~I.~ SAM I l.7' ~c ~ ~ ~CSID~NTI~I,-S~~ETy Ids -lo ~'w, KEAI.oHA !'V ~p'3j 47o s c~ . ~T. t~ 8~~ PARK ' 0 ~ ~ .I ~ ~ ~ c ~ lcKaAK^ ~ ~ ~O N C FlSN ~ ' p P~Nb SUSS cTIoN 7.c~ bbbbb-3 fi~ES01~`T - ~iOTCL -S TT ~y-s-.75) To ~INGI.~ FA I l..y f ~~SI~CNTIAI. +SAF~'Ty 3 -S -10) p~~~ ~ AIe~A = 3s, eoo sa. FT. V ' ~M~NbM~'NT `TO -I~' ZONI ~ ODD C NdM~NT N~: 10~ ~"0 SECTION ?.c, (T~t~ SIT 0~ I1.0 MAp) Ar~Tlc~-~ z, Ci1Ai'T~t~ 8 (zoN~IN~ Coat o TAE W li CoUNTy ~odG, As AM~N~Cn~ ~y CH NCIN~3 TNC 1GT Cl.~ssl~IC~TIDN r?~oM ~~sor~T-~HoT~ - sAFC1'y 'V-S-,75) To SJN~~E MIL`/ t~C51~~NTi/'~l. -5 F~T7' ' _ - AT WAIAft~A ~o T H1~.o ttAWf~II. Uf1T~ dF I°UBI.IC N~Af~It1~0 : MAy 7, IJ81 ~ t1uN~ i°~81 i EF~CC?IVG bA'1'~ ~ MAy 5, 1.~~2 I Of~Dlt !f~NCC NUMBER = 78~ P~~'PAt~~~ ~y = pLANNINc3 DcPAt~TM~NT CpUN'TY of hAWA~i TAX MAC KGy = I -17 = ~a, 24 ~ ~-I-I~ : 14 ~xt-flBl I t f Hilo, Hawaii Hilo, Hawaii Date: April 21, 1982 Date: M~ 5,1982 FIRST READING SECOND & FINAL READING AYES NOES A/E AYES NOES A/E Dahlbe i g X Dahlberg X De Luz X De Luz X Domino 5 X Domingo X Fujii X Fujii X Hale X Hale X Kawahara X Kawahara X Lai X Lai X Schutte X Schutte X Chr. Yamashiro X Chr. Yamashiro X 7 2 0 8 1 0 Publication Date: Publication Date: JIIN 8 We do hereby certify that the foregoing BILL was adopted by the County Council and published as indicated above. i.rr••. . ~ Y........ ~,,YInPTt ~~PRdVE~ ~s fo FARM and lE~ ~ Y ~ un ci i rman . , MIRY 51982.... l Dole County C er Approved/ d this day of 19~. i Bill No. 774 Reference: PC-104 or, County of Hawa M.A. No. Ord. No.:' ~~LI~;~~I~~G C~M1~~ISSION ~OI_TN rl,~' O~F I~AAII FEARING TRANS CRII~T APRIL 1$, ?008 A regularly advertised hearing on the applications of Initiator PLANNING DIRECTOR (SMA 379) and Applicant KOHALA LLC (REZ 866/SMA 379) was called to order at 9:18 a.m. in the Waikoloa Beach Marriott Hotel, Alii I Room, 69-275 Waikoloa Beach Drive, Waikoloa, Hawaii, with Chairman Rodney Watanabe presiding. PRESENT: C. Kimo Alameda ABSENT & EXCUSED: Shelly Ogata Lani Bowman Alvin Rho Takashi Domingo Andrew Iwashita Rene' Siracusa Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Christopher Yuen, Planning Director Steven Lim, Attorney for Kohala LLC And 4 people from the public in attendance. APPLICANT: KOHALA LLC (REZ 866) Continued hearing on an amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-Sa} to aSingle-Family Residential 15,000-square foot (RS-15) district. The property involved is located along the southwest (makai} side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua lSt, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (SMA 379) Continued hearing on an amendment to Condition 4 (time to secure final subdivision approval} of Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua l st, North Kohala, Hawaii, TMK: 5-9-1:8. INITIATOR: PLANNING DIRECTOR Amendment to Plan~~ing Commission Rule 9 (Special Management Area) by including requirements to mitigate the adverse Impacts of light pollution in coastal areas and artificial 1 ligl~~.s on the sho~~elin~~ a~1d o~;e~.n ~vutcrs ~~v ~~rul~il~iti~1Q t11e positioning oI arti~ciai lights ?n rllan~ler CallSing dlreCt ~lllll1"~11~at1011. Of the ~horeline and Ucea~l waters. ,his ~ir~enar~ent ~ mandated by Act 22~, Session Law of Hawaii 2~J05. WATANAI~E: It there are no objections, I think it might be more Pfficiez~t to address the first three agenda items, which would be Kohal~, LLC (REZ 8~6) which is an amendment t0 Condition C and it's a Change of Zone Ordinance, as well as Kohala LLC (SMA 379} and the Planning Director initiated revocation of SMA Use Permit No. 379. We've~~consolidated these in the past and this is, I think, maybe the fifth time we've been addressing this. So I would guess that there would be no obj actions to consolidating these once again. Are there any obj actions? Yes? SIRACUSA: I just want to clarify that that's for purposes of discussion. When it comes to taking the votes, we will vote on them separately. Is that WATANABE: Yes, yes. SIRACUSA: Okay. WATANABE: Yes. And at the last meeting that we had that addressed this, I did relinquish the Chair because I did have some material to present. As I indicated earlier, this is about the fifth time. I'm not planning to introduce any new material. And you know, technically, the hearing is closed. So -and based on the past voting records it would not appear that we have the votes either way to carry this either way - so unless there are any obj actions, I wasn't really planning to relinquish the Chair today. I would welcome your comments. Yes, Ms. Siracusa. SIR.A,CUSA: I would be quite happy if you retain the Chair today. WATANABE: Okay, okay. No objections to that? Okay. Because, like I said, I don't think you know, the positions have been well stated already, I don't think we are going to elaborate much on that. With that, we have some additional material that we just received this morning from Mr. Lim. And Ibelieve Oh, excuse me. I skipped you, yeah, Mr. Darrow? DARROW: No problem. WATANABE: It's all yours. DARROW: This will just be a brief summary again of the application. This is a continued hearing for these items on the agenda, Items l , 2 and 3. At our last hearing on March 20t1i in West Hawaii, We did have a motion that was made; the motion was to send a favorable recommendation to the County Council for the Change of Zone Ordinance 97-102 with the applicant's proposed, or adopting the applicant's proposed amended conditions. The motion did not pass, four to three, four ayes and three noes. So from there all items were continued to the next West Hawaii meeting. 2 r ~t~s~ f~~~ a brief o~re~~~~~ie~~-~, the ~,r~~. ~~t~tllis ap~~~li~atior~ l.s ~~rltlli~~ No~~tl~ Kol~~ala. Il~o~°e s~?eclf1ca11~J, we are loakir~g t)Il th~~ Ma~~~l~ona ;oast. Tl~.is ~s .~koni Pule I-I~gbway rl~ri~~1~1g in north-south direction. r1'he project location. is identified with the w~~rciing as well. as a dot. Tlie 7a~l~tlg fot the ~ropert~j is currently Single-Family Residential 15,000 square feet._ Change of Zone 97-102 was approved in July 1997 to change the zonijlg fra~ll Agricultural ~ acres to Single-p'amily Residential 15,000 square feet. The applicant is requesting a 5-year time extension for Condition C of Cha~lge of Zone Ordinance 97-102, which is to secure final subdivision approval. Additionally, the applicant is requesting a time extension of 5 years for Condition 4 of SMA 379, which was approved in August 1997 fora 50-lot single-family residential. subdivision. Condition 4 is also to secure final subdivision approval. The Planning Director is initiating revocation of SMA 379. So we'll go through this. This is a continued hearing for these applications.. We do have an aerial shot of the location. Kohala Ranch entrance is just located on the mauka side of the Highway of this project. Again, we have the project location, which I'll keep up on the map. As you had mentioned, we have received one correspondence for this application since our last hearing, dated April 7, 2008, which appears to be a correspondence that was directed to the HaWall COUnty COUnCII. Are there any questions? WATANABE: Any questions, Fellow Commissioners, of Mr. Darrow? Okay. With that, then I guess we can proceed by calling up Mr. Lim, the representative for Kohala LLC. I guess I need to swear you in. Do you swear or affirm to tell the truth now before the Planning Commission? LIM: I do. WATANABE:, Yes. And for the record, your full name and address, please. LIM: Steven Lim from Carlsmith. P. 0. Box 686, Hilo, 96721. I'm representing Kohala LLC today. WATANABE: Okay, thank you. Mr. Lim, as I stated earlier, technically the hearing is closed. And I'm wondering would you want this accepted as part of the record LIM: That's correct. WATANABE: The recent correspondence? LIM: That's correct, Mr. Chairman. And we'd ask the Planning Commission reopen the hearing in this matter just for the limited purpose of introducing that into the record. We had stipulated early on that we would have a consolidated hearing. And this is probably going to be my last submittal to the Council; so I want that to be a part of your records also. WATANABE: Thank you. 7 LIM: ~~e ~~T~~~~'1- we'll c~gree ~:~a.t the i~~:~~i~.eci ~J~~r~~ose c~I`ope~~~~~g i:l~e l~c;a~n~,y wi~l not el~tend. fl:?~-ci1eJ~ dul ab~llty to ~ia.ve the Cc;m~nlss~o~~ take a.~tion o~~ t~~is n~att~.~-~ So ac~:~a.~1~J would like the Co~~~n7~sC~~1~ tale a~°ton today ~rIATANABE: Sono further argllr~r~Pnts, just. At1d so I guess it would be appropriate for me to ask the lJirector if you have any objections. YUEN: I don't object to the Commission having this. I would just ask I did. write something in response to this at Council, and send it to Council. So if this matter does get considered fu~~ther - and I don't have it here today - if it does get considered further by the Commission, I would like to have the liberty of submitting it to Commission before any other deliberation. I can discuss the contents of it today if necessary. WATANABE: Okay, so LIM: We'd have no objections to submittal of the Planning Director's letter that he submitted to the Pla~~ning Committee of the County Council. I think that was just prior to its first meeting in March, about March 11th was the first meeting. WATANABE: So then we are in agreement that, should we in the future deliberate on this, your submittal to the County Council would be included within the record, or you'd have an opportunity to include it then. Is that correct? YUEN: Right. But I think that there was a letter that went to the Council after April 8th. But I'm not WATANABE: You're not sure. YUEN: I'm not a hundred percent sure right now. WATANABE: Okay. Mr. Lim, seeing as whatever was submitted to the Council would be, I believe, public record, do you have any objection? LIM: We have no objection. I was j ust trying to find the letter. WATANABE: So potentially we don't have to be as specific about the submittal of this that it'd be something that was submitted to the Council with regard to this issue? LIM: That's correct. I' 11 look - I am pretty sure I have that here - so I' 11 look for that, so I can give you the date. And I can probably even give you a copy of that letter. WATANABE: Okay, thank you. Ms. Siracusa. SIRACUSA: I'm not sure if this is an appropriate question of Mr. Lim or not. And if it's not, I hope that Mr. Torigoe will shut. me up or tell Mr. Lim not to answer. But you know, in a lot of ways this has been an unusual applicatio~~. For one thing, usually when an applicant r ~ cc~n~es before us, tlYey'll either c~bme themselves or tl^~ey'll cozi~e with thei~~ consult~~~it. And Mr. Lim has a.lv~7ays appeared for I~.ohala L.LC. vJe ~lora't Dave any idea. who lire principals of Kohala LLC are. Aid vr~e've never been. info~~~~ed who they are. And r'm jaast wc~t~deri~~g ~-hy That is. Nir. Ling, could you answer that for Ine? Is that app~~o~nriate? LIM: well, l SIRACUSA: It's not like I would take it into consideration in my, you know, in my voting. I just it seems strange to me. LIM: I'll answer it this way. The client of actually there is a living person behind Kohala LLC, and he has not been able to come because of his business concen~s. But I think that's about all I can say with respect to the LLC. WATANABE: Okay, thank you. Maybe we should limit it to that. I've been informed that technically we should reopen the hearing, if we are going to start introducing more evidence. And I might also point out that when you are - to me, anyway -when you are making a land use decision, it's not critical who owns the property. And I note that you said that you wouldn't necessarily take that into consideration. But because of that, I don't see the particular relevance of whether we know who all makes up Kohala LLC. SIRACUSA: I just thought it should be part of the record, so that somewhere along the line if something happens and Kohala LLC dissolves, for example, then we know who, you know, it's on the record who the principals are. V~ATANABE: Okay, thank you. So, yes, Mr. ~Uoodward. WOODWAIZD: Mr. Chairman. And I don't know if this is appropriate without reopening the hearing. I'll throw it out and see what Mr. Torigoe has to say. But I know Mr. Lim at the last meeting has said that the principals involved may be willing to reduce the number of lots. And as far as I know, we haven't heard any information in that regard. They had originally reduced them to I believe it was 25. So I would be interested, if it's appropriate at this time, to find out what Mr. Lim has to say. Now, that may require reopening the hearing, I don't know. I'll leave that to Mr. Torigoe. TORIGOE: Thank you, Mr. Chairman. I would recommend, if you want to start discussing the substance of the merits, then you reopen the hearing. And you probably want to do that anyway to consider, you know, whether you're going to allow further correspondence in. WATANABE: I understand that. But you know, initially Mr. Lim indicated that he wanted us to reopen the hearing for the specific purpose of introducing this as part of the record, and the condition was that we would also include the correspondence that Mr. Yuen had provided to the County Council, and not so much to open up the arguments. Let me ask my Fellow Commissioners. How do you feel do you feel that it would be productive if we reopen the hearing to discuss further, a further limiting or are we pretty hard and fast on our positions? SII~ACUS1~: If wF~ i~as anyone s~g~~ecl u~~ to testify ~.~n tl~~s ~nattG~~? WA~'A?~ABE: No, no urge ~~as. Not an alb t~~~ree of them SIRACUSA: That would be something I would take into consideration. Basically, I have no trouble reopening the hearing. I have no problems with that. WATANABE: I guess what I'm saying, though, is is it going to be fruitful, or are you You know, if you are already set in your decision, then Because I remember at our last meeting, Mr. Lim wondered whether there was any other number, some smaller number than 25 units, that would be acceptable, and no one responded. Mr. Iwashita. IWASHITA: Thank you, Mr. Chair. First, I'd like clarification on the timing on as far as our if there is a deadline now in terms of getting this to Council. WATANABE: It's my understanding that the applicant had the opportunity to extend the time; so timing-wise I believe we are sti11 in good shape. It's also my understanding that the applicant has indicated that they are not looking to continue this matter beyond this date, given the voting record and the testimony that was already occurred. IWASHITA: I guess my concern, then, is that, you know, our decision is supposedly based on the entire record. And Mr. Lim the suggestion now is Mr. Lim's April 7th letter to Mr. Pilago, the Chair of the Committee on Planning for the County Council, be put in our record. And there is another agreement that Mr. Yuen's response to this letter be put in; but we don't have that today. So it seems to me there is a procedural defect in terms of our deciding on the entire record, if we are trying to go down that road because we don't have Mr. Yuen's letter. WATANABE: Mr. Lim LIM: Yes. I've just submitted the March 5, 2008, letter from Mr. Yuen to the County Council, which I think is the one you were talking about, Mr. Yuen. And so we' 11 stipulate that that will be introduced along with ours. Maybe WATANABE: Mr. Yuen, would you need to LIM: Maybe Ican with respect to the issue on whether we are going to be talking about further reduction in lots, I think, you know, we discussed this with the client. And you should know that on April 8th, the County Council Planning Committee voted to forward a favorable approval recommendation to the full Council for the downzoning, adopting Mr. Yuen's proposed downzoning. So in light of that, that's why we are taking the position today that we'd just like to wrap things up today. And I don't know that there is going to be any utility rn discussing, you know, reduced proposal at this time, in light of what the County Council is doing. WATANABE: Mr. Iwashita. G e 1 IWI~SII~_r~~A: ~je~??~, yot~ k~~ow, ~i~~en 1:l~at ar~~l tl~~rea~rc ~lrea.~~~ a~.~egatiu~~s thG~t t~.erE're ~~elects procedurall~l in thy; process that t~~e Cc~~~~~nlssio~~ ha.s gone tili~o~gh in this a~~d other ~~atters. So t just don't see, yc~u know, since we're not going to leave an opportunity today to see M~~. Yuc~~'s response to this April 7, 2008 letter Do we have it? _ WATANABE: I'm trying to validate that.. I'm not sure because he wasn't familiar with the date. So unless he looks ~.t it, I have no idea. IWASHITA: Okay. Mr. Lim's letter is dated April 7, 2008; my understanding is Mr. Yue11 did respond sometime after that. And if that's the case YUEN: I thol~ght it was after that, but it may have been before. And in either event, I think that both Mr. Lim and myself would agree that the Commission, if it chooses, can take action based on what you have before you. And it's only if you were to move this to another meeting that I would want to submit something else. WATANABE: Does that clarify it for you, Mr. Iwashita? IWASHITA: Well, I would just Like to have it clear on the record from the applicant, right, that if we admit both of these, that there is not going to be any objections somehow to this process that, you know, if we vote today and whatever the result, if it's not favorable one way or another if it's not favorable to the applicant, that the submission of these documents somehow would be raised as creating a procedural defect to the vote. LIM: The applicant would be willing to waive, is willing to waive, or is waiving that objection with respect to these two documents we are talking about, which is the April 7th letter from myself to the Council and Mr. Yuen's March 5th letter to the Council. IWASHITA: Thank you. WATANABE: Is that satisfactory? IWASHITA: Yes. WATANABE: Do we have a LIM: I'd like to make it clear that we reserve all of our other procedural, you know, objections, but WATANABE: Okay. LIM: With respect to these two documents, no problem. WATANABE: Yeah, I understand. Are there any other comments from the Fellow Commissioners? Yes, Ms. Bowman. B(~ ~~~~M~~~~I: I just would I1~e a ~~o~nt of c1a~~f~~~at~U~. ~o vie are; riot rea~~e~~ing tl~e l~ea~-ing? WATANABE: We are BOWMAN: Or we don't know yet. WATANABE: The intent is to reopen the hearing with the limited purpose of introducing these two letters, the correspondence. It is not the intent tQ reopen the discussions because, as Mr. Lim pointed out, you know, and we are just an advisory to the Council with regard to zoning and the Council has pretty much stated their position, so BOWMAN: But we will discuss these newly submitted documents, if we reopen the hearing. That will be WATANABE: It will be part of the record, and we could deliberate over it. I'm not sure how fruitful that would be, though. BOWMAN: Okay. I mean, I'm just you know, to get something 5 minutes ago and not be able to look at it is a little difficult as far as I'm concerned. WATANABE: Mr. Iwashita. IWASHITA: I just procedurally, the reopening is just for these documents is my understanding, and that there is no other for other purposes the hearing is closed. And what's left is for us to have a motion and have discussion on the motion and vote on the motion. WATANABE: That was my intent, and I believe that was also Mr. Lim's intent. But you know, I was also advised by Counsel that once you introduce it and if you really want to discuss it, you could deliberate over it, but IWASHITA: But we are not reopening the hearing for discussion; we are just reopening it for the purpose of submitting on the record. If on a motion there is going to be comments about what has been submitted, that's going to be allowed, right, because we are able to explain our rationale. And if we want to make a comment on it, we are not prohibited from doing that, even though the hearing is not reopened, right, just for purposes of explaining our votes. WATANABE: Yeah. Is it clear? Clear as mud now? Okay. Yes, Mr. Woodward. WOODWARD: Well, if we are in a comment and discussion mode now is that where we are? Or we have to do something else first? WATANABE: We'd have to officially reopen it, and I guess, you k~1ow, if you. are mentioning comment and discussion mode U~~~~.~D~~VA~~J: So we can't cc~nlr~~~ut u~~less sue re«pvl~ tl~e i~e~~-i~~g. ~~e just have to ~-ate, I~ that Imigh~:? WATANAI~E: Pretty much, yes, yes. _ WOC)DWARD: Okay. WATANABE: I guess during deliberations we could discuss some of our points before the vote. WOODWARD: After a motion is made, then you can have discussion. WATANABE: Yeah, yeah, right. WOODWARD: Okay. WATANABE: So you would prefer to wait till then? WOODWARD: Right. WATANABE: Okay, okay. Let's see, then. Now, do we have any objections to, again for clarification, reopening the hearing specifically to introduce the two items of correspondence? Yes, Mr. Iwashita. IWASHITA: I'm prepared to make a motion. WATANABE: Please. IWASHITA: Mr. Chairman, I move that in the matter of WATANABE: These are consolidated, yeah? So it would be for all three. IWASHITA: The first three items WATANABE: Right. IWASHITA: On the agenda, on today's agenda referencing Kohala LLC, that the hearing on those matters be reopened for the limited purpose of admitting the April 7, 2008, letter written by Mr. Lim, the applicant's attorney, to Honorable Angel Pilago, Chair and Members of the Committee on Planning, and the March 5, 2008, letter prepared by Mr. Yuen, which has been circulated to the Commission together with this letter and only for that purpose. SIRACUSA: Second. WATANABE: Okay. It has been moved and seconded. Do we have any discussion on this? Ms. Bowman. 9 _ y B~)O~J~AN: ~nestlotl, ple~~sc. Mr_. Yue~~'` letter ~s be?~Ig rircu~atcc~ I have~~'t seen it.. I-IAYASHI: Excuse me, Mr. Chair. _ WATANABE: Yes. HAYASHI: We are making copies for the Commissioners, and you should be getting it shortly. BOWMAN: Okay. I'd like to see it before we have our discussion. Thank you. SIRACUSA: Could we maybe, when they are ready, at that point take a 5-minute recess to allow us to review that? WATANABE: Yeah, why don't we go ahead and do that? We Dave a live motion on the table. But before we enter into discussions, why don't we take a recess, so that Yes, Mr. Iwashita. IWASHITA: Mr. Chair, if I may. I'd like to suggest, you know, my motion is for the limited purpose of just getting the letters in WATANABE: Right. IWASHITA: So it seems like we can vote on that; and then we can have a main motion on the substantive thing, and then we can discuss the letters at that time, if Members of the Commission want. WATANABE: So you'd like to have a vote on that IWASHITA: It's two levels, yeah. This is just a procedural matter. It's real WATANABE: Yeah, but I think that Ms. Bowman's point is she wants to see the letter before she even votes. Is that correct? BOWMAN: Not to open the hearing, no. I mean, I'll vote to reopen the hearing, but I' d like to see the letters before we have a discussion. We can vote. IWASHITA: Basically the suggestion is that we vote to allow it in, we take a break, we can look at it then legally as part of the record, and then we come back after the break and we can have a main motion. WATANABE: Okay, okay. Yes, Mr. Woodward. WOODWARD: Mr. Chairman, yeah. I think basically' we are voting to admit tllese letters into evidence, and that doesn't necessarily reflect the fact that we've had a chance to review 10 tlc~r~ erY~irely. ~'he~j arc jest gal}~b tc~ be into c~l~dc~~~;e. A~~d I da~~yt l~~.ve a l~ro~~lelr~ t~1itl~ 1~~~~. Yne~1's letie~~ bei~~g plat i~~. ~Tr~e ~u havc ~,i~~~'s l~~ttcr l~cz•~. Sc~ I tl~irak we can. ga ~.heacl ar~d ~~o~e ol~ ~t, and then we can discuss the r~~er~ts ar~~l tiler make a prole on these ma.tte~~s of` substance. What we are doing is talking about a bn~lc;h of poppycock as far as I'~n concerned, procedural items ghat: have Little importance to nre. WATANAI3E: Okay. Any other conlme~lts? Mr. Darraw. DARROW: I was informed by Norman that we don't actually have to take a vote. But it would be up to you. He just said roll call, I nlean,just a WATANABE: Oh, okay DARROW: Voice call. WATANABE: Okay, all those in favor of reopening for the Limited purpose of introducing the correspondence, please say aye. COMMISSIONERS: Aye. WATANABE: Any opposed? Okay, so the record shall reflect that it's unanimous. And with that, well, it looks like they are passing out or about to pass out the copies now. Why don't we take a recess, so that you all would have some time to digest what's being circulated and we'll reconvene in, what, about 10 minutes? RECESSED The Chair called a recess at 9:47 a.m. RECONVENED The meeting reconvened at 10:00 a.m. WATANABE: Will the Planning Commission meeting please come back into order. Seeing as the motion was to reopen for the limited purpose of introducing the two correspondence, Ithink it would be appropriate that, you may be seated, Mr. Lim, unless there are other objections cause I don't think we're going to, you know, introduce any more evidence. Yes. SIRACUSA: You know, at the last meeting there was a Lot of questioning about ciguatera and the connection with development and that sort of thing. And I went and questioned John Kahiapo of DLNR, Division of Aquatic Resources, about that. And I am willing to share what I learned with the Commission. But that would be bringing evidence in, would it not? WATANABE: I believe SIRACUSA: So I'm not really allowed to do that. WKTANABE: Yeah, I think you should refrain ~.1 1 '~~~O:~W~~RD: We1~, I third. you could prc~l~a~~ly; once a n~.otlon ~s made, that could be part of discussion, if I'm correct. Is that col~-ect, ll7r. T`ol-igoe? TORIGOE: Well, the motio~Z has been for a very limited purpose; so you would have to amend that motion. WOODWARD: .Well, we've already voted on the motion to admit those documents, and that passed. SIRACUSA: But not the information that I got from Mr. Kahiapo. WOODWARD: But I mean, if we make a motion to one way or another on the first item on the agenda, the rezoning item WATANABE: Yet, then the discussion will be limited to whatever is within the record and not introduction of new material. WOODWARD: Okay. WATANABE: So are we clear on that? SIRACUSA: Okay. Actually, what I learned wasn't a hundred percent favorable to my position anyways. But I felt I should in fairness bring it up. WATANABE: Okay, but let's Yeah, go ahead, Mr. Torigoe. TORIGOE: Just for your information, if there is information that the Planning Commission would like to see in the record, you can always ask the parties if they would stipulate to put it in, you know. So that's an option. WATANABE: That would be a separate motion, though. What he is saying is if you want to introduce that, we could reopen specif cally again for that limited purpose, providing the two parties agree. Now, again, I appreciate the fact that you are trying to be very open about this even though, according to you, it doesn't support your position. But I'm not sure that it would be fruitful given, again, the voting record that we've experienced over the past few meetings, as well as the fact that we are only an advisory position anyway. Thank you. BOWMAN: I have a question. WATANABE: Yes. BOWMAN: I agree. I think, you k11ow, it may not be at this meeting. But at some point I would like to have more information because I, too, you know WATANABE: With regard to ciguatera? l~ BO~~~AN: Year. So if ~e hacl another lle;:~ring I rne~~n, because this is an issue that, I think, coiner uI~ a lot. And so i~, would be l~ei~e~cial for the Cornmissior~ to maybe have some kind of a professional _ WA`TANABE: Educational session on teat? BOWMAN: Yeah, educational. Not today but at another meeting: WATANABE: Yeah, in the past they have provided us with educational sessions, you know, such as SMA, etc. A~.Zd I think it's reflected in the records that we may act upon that as tune allows. TORIGOE: Mr. Chairman. WATANABE: Yes, Mr. Torigoe. TORIGOE: But I would caution the Commission, you know, that if you are dealing with contested case matters, that you really need to make your decision based on what is in the contested case record. And so I generally would discourage the Commission from gathering especially scientific expert type information that is not in the specific record for a contested case, okay? WATANABE: Okay. You've heard the legal version. SIRACUSA: Not really. I'm having trouble hearing. today. TORIGOE: I'm sorry. Basically I just was saying that if this Commission handles both advisory and final decisions, and final decisions are all contested case matters; and especially for the contested case matters you need to make your decision based on what is on the record before the Commission. So generally speaking, I would discourage the Commission from, you know, having open workshops to get general background information about especially scientific type matters, which really should be presented by expert testimony for the specific case. WATANABE: So that it's reflected in the record. SIRACUSA: Got it. WOODWARD: Mr. Chairman. WATANABE: Yes, Mr. Woodward. WOODWARD: If I might is it time to make a motion? Because I think that's WATANABE: Yes, Ibelieve 13 ~C~OI~?W!~~: Thy only ~~haic~; ha~~e left. ~TATANABr : Yeah, exactly. I ~~ould entertain a ~n~otion. _ WOODWA.RD: All right.. Well, with regard to Item No.1, k:ohala LLC (RF,Z 866}, I would move that we recommend to the Council that rezoning extension b~ provided. DOMINGO: Second. WATANABE: Okay. It has been moved and seconded. This is based on the original, though, yeah, for clarification purposes. Because we have had other motions to this effect where we discussed limiting the amount of residences and the other - what is it -alterations to other conditions. WOODWARD: Yeah, exactly. The main condition here would be what Mr. Lim and his clients have agreed to, and that is -,amain condition would be that it would be limited to 25 lots. WATANABE: Okay. So you are proposing that we forward a favorable recommendation to Council based on the previously submitted terms and conditions by Mr. Lim WOODWARD: Right. From the last meeting, yes. WATANABE: Okay. And you are in agreement to that, Mr. Domingo? DOMINGO: Yes, Mr. Chairman. WATANABE: Okay. So we have a motion that is live. Any discussion on this matter? WOODWARD: Mr. Chairman. WATANABE: Yes. ~VOODWAR.D: If I might. You know, I've expressed my concerns about the way this has been handled from the beginning. Basically, I think a lot of what Mr. Lim has put out in his April 7th letter is valid, that is illegal taking, a number of other items. And I think what we are doing here is using the Planning Commission to try and forward a political agenda. And that agenda is some people feel that there was a mistake made back in 1997 when this was originally approved to allow smaller lot size along the Kohala Coast, and now the prevailing political opinion is, well, it all ought to be 20 acres. I don't think that's the part of the Planning Commission. Now, admittedly there have been, you know, afew they've dropped the ball, I mean, as far as various filings that had to be made in a timely manner. But those are relatively minor items that we generally tend to work around. But in this case I think we have been kind of a prejudicial attitude against this particular property, and again I think it's because of a political agenda. And sa that's why I think we should not be the people that are going to, you know, downzone a small subdivision. If that has to be done, I think that should be done at the County l~ Council level. I do~~'t feel tl~a~'s on.r respo~lsibili~y. A~~cl ~ clo~~'t feel i~:'s right:, to be l~or~est ~~r~t1~ ~rou. wATANAB~: Any fu~~ller comme~lts? ~s. Siracusa. _ SIRACUSA: Actually, in a rezoning, all we are doing is making a recommendation to the County Council; and. that is our respol~sibi lity, to make a recommendation, up or down, and. it's the County Council's responsibility to make their own determination. I still feel that, you know, we are being pulled into a semantic whirlpool here. The consistent use of the phrase, "involuntary downzoning," I don't see it, first of all, as involuntary because it was the developer, the applicant and his predecessor, who dropped the ball on final plan appro~~al (sic) and getting an extension in a timely manner. And so therefore, by default, you know, is how that happened. And to say "involuntary" makes it sound like eminent domain, which it's not. That's one point. The downzoning part is it's not like we are taking a property that was zoned to a higher density for a long time, and then arbitrarily decided to downzone; this is a reversion to its original zoning, which was allowed for in the original permit, which stated that if the applicant did not do what they were supposed to, then that could happen. And the applicant had agreed to that, to those terms and conditions at the time, as they all do. So by that token, it's not involuntary, either. I would like to on the you know, Mr. Lim uses the phrase,. "downzoning," in his second paragraph of that April 7th letter; he used it seven times. And it reminds me of the, you know, motto that if you say something often enough, people would believe it, whether it's true or not. And I see that happening here, the consistent use of the phrase, "downzoning,"which you will note in the actual application that term is not there; it is extension of time to secure final subdivision approval. Mr. Lim's contention in "A. Nothing Has Changed," I would beg to differ with that in several respects. First of all, Mr. Rho pointed out in our last meeting that the previous Planning Commission that approved this zoning in the first place did not have the full archaeological survey when they made that approval. Some of the sites had been marked on their maps, but not all of them. And so they did not have the complete picture. Also at that time the North Kohala Community Development Plan had not been worked up. And as Mr. Yuen has pointed out in the March 5th letter to Angel Pilago, there have been changes to the General Plan that definitely affect this area in terms of viewplanes and scenic beauty. So, yes, there have been changes. So I dispute that contention that Mr. Lim made there. I would also like to point out the opinion that he got from Professor Callies. No.1, it's still an opinion and is valid as anyone else's opinion, including Mr. Yuen's or mine or Mr. Woodward's. It seems to me, in looking through the packet, that if this is everything that Mr. Lim presented to Professor Callies, he did not give Professor Callies everything. The quotations, or the part of the General Plan that was changed about the scenic view that Mr. Yuen mentioned, that's missing. The information regarding the Community Development Plan for North Kohala is missing. The topographical map that we saw last times showing the gullies, how unbuildable a lot of the area is on that acreage and the location of all the archaeological sites that are known, that was not given to Professor Callies, either. And therefore, I would tend to dismiss Professor Callies' comments and interpretation based on the fact that he did not have the ~ full amount of data on which to base 1~ _ his decision, ~n~ therefore lle b~se~ it oil very c~~refu~~y selected lllater~~1 than Mr. ~~il~l p~~esel~ted to llli~l. ~'ha~lk yore. WATANAEE: Any further comments? _ DOMINGO: Mr. Chairman. WATANABE: Mr. Domingo. DOMINGO: Thank you, Mr. Chairman. I seconded the motion, and obviousl it's y because I think what Mr. Woodward had emphasized with regard to this issue before us, I support it totally and I agree with hi~n. I agree strongly that the doctrine of fairness has been breached, you know. We've considered many times applications for extensions - in fact, extensions upon extensions. And this Commission has not been as critical to those extensions as we have been on this particular issue. And some of the information, as stated by a previous speaker, with regard to being omitted, the Kohala Development Plan has not been adopted, and some of the concerns that were expressed have not totally been adopted as a policy statement with regard to the development of that particular area. In my opinion, as I stated, I support very strongly that what changes have happened there that would warrant the downzoning and the revocation of the zoning? To me, nothing. The General Plan has not been changed. There have been opportunities for the General Plan to be changed; and it has not changed one bit. The policy elements for development along that coast have not been changed also. So you know, why all of a sudden the decision to revoke the zoning and the SMA Permit has come out? And that's why I strongly emphasize, you know, the doctrine of fairness totally has been breached because of the part of the applicant has not been given fair consideration in their application. Thank you, Mr. Chairman. That's all. WATANABE: Mr. Woodward. WOODVVARD: Mr. Chairman, thank you. Yeah, exactly. The problem here I think is an issue of fairness. And I hate to say it, but the Planning Department has not worked with the applicant at all. We've been through several meetings, and we've encouraged the Planning Department to try and work out a compromise with the applicant. The applicant has volunteered to reduce the number of lots from 50 to 25. There has been nothing from the Planning Department other than, you know, my way or the highway. And it really is an issue of fairness. And I think what's going to happen here, if we vote this down, they are going to have a contested case, they are going to take it to the court, it's going to come back to us. And to be honest with you, they are going to win. There is no question in my mind because this has not been a fair process. WATANABE: Any further comments? Mr. Iwashita. IWASHITA: Mr. Chair, my view is that we as a body or my view of my role in this body is that I need to apply the proper standard. And there has been discussion about fairness; and you know, there're no allegations that our rules are not fair. It appears that argument has been made that somehow, in applying those rules to this case, that the result is not fair apparently 1~ ~_,s.~:.:.._.., w~wwsu-rv .m.....: uen~aa«..... m:t u.._~.., i to ~,lYe a,p~~~icant. And whet ~~~e are- eU~~side~~lr~g on t~11~:~ motio~~ i~ tl~e evt~nsion o~~tirne that was l~~~c~vided in tl~?e origi~~al rezoning ordina~~~c ~F. 1~r~d there ~s ~~o ~ISl~utc 1n tl~e record that those time 11~nits were not met.. None. Absolutely ~~onP. Where ~s 17o disl~~~te i~l tl~e record that I cal. see, you l~~ovr. And so our role ~s to dec~dc v.Jhet~ier or not there are sufficient circu~~~lstances at this time in order to grant an exte~lsion of that time. And as part of that, we Dave the discretion to consider other matters. And the Director has made a clear record, as I see, that circumstances ha-ve changed since the original granting a~f that rezoning. And the rezoning ordinance is clear that if the applicant, the land owner, did not meet the time deadlines specified in there, that the consequence could be basica ly the loss of the zoning. It's clear upfront. So you know, as a speculator and as far as I'm concerned, any development involves speculation as to what the ecol~omy is going to be like, what the community's views are going to be like. You know, the General Plan i s not a static document; it changes. The community's involvement in all of that, which we are part of, that all changes. So the developer, in getting the original rezoning, basically had the right to go forward and complete the development within the time limits. And I really see no abuse of discretion by this body or the County Council ultimately who is going to decide on these matters. Not that, you know, the result of all of this over all of this time is a decision that we are not granting an extension; and that under the teens of the original rezoning it is specified, made very clear to the developer, that one of the risks of this potential development is that it's not going to happen. So it really behooves me a lot to think that, you know, this argument is made that, sure, the developer is going to think it's unfair; anybody that owns. land in this situation is going to think it's unfair. But the question is not whether or not ultimately it's an unfair result to the applicant; the question is whether or not we have followed our rules, which are fair on its face - otherwise we couldn't be here -and we've applied them. In the proper standard we have discretion. And the record there is a burden on the applicant to establish in the record good reasons for the extension; as far as I'm concerned, that has not been met, that the preponderance of the record shows that the denial of the extension is a proper decision in this case. And I for one don't think that - and I hope -that the court would sustain our exercise of discretion in this matter. It is a discretionary matter. And as Mr. Yuen points out in his March 8th (sic) letter, which was made art of the record, ou know, the fact that this p Y continues to be a discretionary matter, you know, really takes out all of this taking arguments in terms of how we are proceeding in this matter. And I find it very disturbing -,well, let's, I'm taking a step back. If in fact the arguments made by the applicant are correct, then -and one of the arguments being that, well, we have this original rezoning, you really can't take it away from us because it's never been done before although the law and the rezoning ordinance itself clearly provides that we can do that, that it can be done, right - and if we buy into this argument that, well, we'll be the first one, we'll be the first one, so it's unfair and you can't do it, then we should be very, very careful in the future about granting anyone any rezoning; because in fact if we buy that argument, we can never take it away. A,nd that is not what the law is. Sorry. And that's not how we pass any rezoning. Every single rezoning we pass says this can be taken away. So I for one don't see it as plausible frankly, you know, to say that, well, there can't be a first time. Professor Callies' letter basically is saying it's never happened before; so it's unfair? It just boggles my mind that the fact that the law provides it can be done, but the fact that it hasn't been in the last 6o years or however long we've had the zoning laws, that that bars us from implementing the law? That cannot be. And if you take that argument to the Hawaii Supreme Court, I doubt that that can be a plausible rl argurnel~t teat the law c~~~x;1~~~E~ be applied Because It's tl~c; f~~-st time a~~d i~ wc~u~d be unfair to tl~e developer. `~Tou l~no~u, it basically ~~v~t~ld haxlclcuff anything that we dc?. As far as I'~~~ concerned, then we sho~~ld pass only those d~velopn~ents that we a.re c~~rta~n ~~~ill be d~?ne and not be speculated upo~1 over ye~E,rs ar~d years and years and years anal years a,nd years, anil then be turned over and an basically just speculative pu~~poses, and nothing a,ctualiy gets done. So that's what we are really lc~oki~~g at. And it is very precedential. I think that in the end well, nay feeling is we should pre~~ail; we are properly exercising our discretion under the terms of the rezoning ordinance itself and under our fair rules, and the rules have been applied fairly in this case. Thank you. WATANABE: Thank you. WOODWARD: Mr. Chairman. WATANABE: Mr. Woodward. WOODWARD: Well, first I would like to say there is a fundamental difference between law and justice, unfortunately. That's just the way it works. The law is not always right. And you mentioned discretionary; yes, well, that's the key. point here. If you look at the discretion that the Planning Commission has used, as far as granting extensions - and I can't name the number that we've looked at over the last year and half - where we had discretion, and they may be 5,10 years, you know, out of compliance, and we worked with them. That's not what happened here. What happened here was there was a political agenda to downzone this property because some people felt that the original zoning in 1997 was inappropriate. It was a political act. It was not a legal act. It was not fair. And as I say, there is a fundamental difference between the letter of the law and justice. And that's the problem with our system. WATANABE: Ms. Bowman. BOWMAN: I just have a couple of comments. Being the new kid on the block, I haven't been cognizant of the extensions and how many improvements were made or so I can't address that. But in preparation for this meeting, I did review the Northwest Hawaii Regional Outdoor Plan. And you know, back when all this was happening it was a market driven economy. And if you look at the Plan and you look at everything that was planned, I think this is the first of many challenges we'll have as far as growth. So you know, after reviewing the Plan and seeing that, yes, this is precedent setting, but I have just a gut feeling that this is -how can I say it WATANABE: Tip of the iceberg? BOWMAN: Yes. And I, you know, recommend that we do review these plans because we have a lot of work cut out for us that the previous you know, you talk about politics; I think that was back then. I think now rather than political, I think we really need to look at environmental and growth and capacity, building for this island. So and, that's all I have to say. Thank you. t8 v.. . . U~~TATANABL~ ` 'fir. I`vdsl~lta. 1WASHI~`A: Thank you, Mr. Chair. You knov~l, politics I guess is rela~~ive. ~~nd we witness the effects of politics ire Furla a11d all of those substandard subdivisions that were dome way back when, and we are challenged today to deal with all of that. And from my view those are political acts. And so, I guess I agree with you, Commissioner Woodward, that there is politics involved in these things to some level; and I guess it's 'ust a matter of semantics or definition. The perspective expressed, just expressed by my Fellow Commissioner about the emphasis that we need to look at, I agree with that. I had a conversation with a friend of mine about our Commission matters. And before those substandard subdivisions, it was the politics of yes, right? Let somebody make some money, cut some land on pa er, sell if off, and let the p consequences be whatever the consequences are going to be. And the suggestion from my friend was, you know, this should really be the politics of no. When we have develo ment ro osals p p p brought before us, they should be very seriously scrutinized. Developers need to, you know, meet the community standards and what is necessary to protect the aina and what we have because really we don't - we are an island - we don't have really anything else, we have no place to go. And actually with global warming and all that I don't think we want to go anywhere; this is a good place to be, given all of that. But you know, it's a I thought that was significant, and I thought about that. You know, it's like we have to be very deliberate about these things; and that is going to be part of how I view my role in this process. WATANABE: Mr. Domingo. DOMINGO: Thank you, Mr. Chairman. Granted in any rezoning ordinance, should any of the conditions not be met, it shall be reverted back to its original zoning; and of course any developer is aware of that. And there are rules and policies to which we must follow to enforce those conditions that are contained in the ordinance. As I indicated, the doctrine of fairness is uppermost in my mind of a private throughout my life in all my dealings. And I for one certainly sense that the doctrine of fairness has been breached. Granted the laws and the policies are there and they should be followed and they have been followed, and that's why we are here at the point that we are. But during the whole process there is a point in time where the discretion, the discretion of powers and the discretion of those individuals who make the decision, comes in, and that is where the fairness doctrine comes in. What I'm saying is that not only this Commission, the Council and even other jurisdictions find that there are times when you feel that the doctrine of fairness has not been meeting out to individuals. And that is only because of the judgment and the decisions of individuals; it's not because the Iaw is flawed. It is the ability of the individuals and the powers that may be that interpret those laws and enforce it that is the problem. It is individuals with discretionary powers in their performance of their duties make what I would refer to as unfair judgment and decisions. And that's as I look at this issue, I certainly fend that in it. And I think as we deliberate -,we've deliberated many times, as I stated, there were times that this Commission has often gone beyond their means .and considered applications for extensions of times and has granted them. I found no fault in that. Those decisions were made based on the information that was given us and based on what we felt was fair for that individual or for that applicant. And that's wh the decision was made as it Y was. And you know, what I'm saying, again, is, with respect to this particular issue, I don't see that it has happened. Thank you, Mr. Chairman. 19 . , ~~IA`fAIVTr~BE: 7.~l~ank. }jou. All right, I believe We'~Te all es, I~I1`. ~11oo~w~~rd. WOOD~'AI~D: ,lust one very brief com1ne11t. I t11111k, you kno~i, to spear to Mr. Iwasllita's comments about zol~ing, I Look at our role as being proactive, that is providing guidance for the future, not going back on decisions made in the past. And I think that calls into questions, fairness and a number of other issues. But cel-tainly I don't think you're going to fi1~d anybody zoning in North Kohala or South Kohala, or getting rezoning for anything at this point. But to disallow somebody who previously had a zoning change and then to try and downzone that, I think, violates the fundamental principles of fairness. I think we've of to be roactive g p not retroactive. And this just doesn't shell right; it doesn't pass the smell test to lne. WATANABE: Mr. Iwashita. IWASHITA: I know my olfactory sense is a challenge, but I don't need to challenge that much. I want to be fair to the people of this island. I want to be fair to the land. And fairness is not any personal, individual or entity's right; it's a balance. We are balancing here. And that's why we have discretion to make this decision. And I agree with Commissioner Woodward about being proactive. I think we are being proactive. We are taking all the relevant matters into consideration. And in fact, what we are doing is enforcing the decision that was made in the past; that decision said if you don't do it in this time, it's over. It's over. WATANABE: Okay. Ail right, I think we've made our positions abundantly clear. And it's clear from these discussions that nobody has had a change of heart from previous meetings. So I don't know that we're going to gain anymore by discussing this any further, unless someone has something really pressing that they'd like to express. For myself, I think I've been clear on my position, and I think my only regret really through this entire process is that we weren't able to arrive at some kind of compromise, and that I sense that this decision really ultimately is going to be decided in the courts. But with that, if no one else has any further comments, Mr. Darrow. DARROW: Thank you, Mr. Chairman. The motion before us is to send a favorable recommendation to the Hawaii County Council, adopting the applicant's proposed amended conditions, which are listed within the March 18, 2008, submittal submitted by the applicant. With that, I'll take the roll call. Commissioner Woodward? WOODWARD: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Alameda? ALAMEDA: No. DARROW: Commissioner Bowman? - 20 ~ 4 . 130~1~AN: 1~TO. DARR0~4~: Commissioner Iwasl~ita? IW~.SHITA : No. DARROW: Commissioner Siracusa? SIRACUSA: No. DARROW: And Mr. Chairman? WATANABE: Aye. DARROW: The motion does not pass, three ayes to four noes. WATANABE: Okay. We agreed that we would vote on these se aratel . So we have . p y again, in a related issue, Agenda Item No. 2, which is Kohala LLC, S1VIA 379, amendment to Condition 4. The Chair would (Chair had brief discussion with Mr. Torigoe.) Okay, I've been informed that procedurally maybe I should ask if anyone would be interested in making a negative motion to Agenda Item No. 1. We had a positive motion, meaning a positive recommendation, and that did not pass. SIRACUSA: If anyone had, intends to vote differently, then I don't see what purpose it would serve. WATANABE: Yeah, I tend to agree. But procedurally we offer you that choice TORIGOE: Right. WATANABE: If you want to go through the motions. TORIGOE: Yeah, Mr. Chair. That's alI I'm suggesting, Mr. Chairman, is that there be an opportunity; and if it's clear that nobody wants to make the reciprocal motion because it's clear that there isn't five votes either way today, then you just want the record to reflect that. WATANABE: Okay, thank you. SIRACUSA: Okay WATANABE: Yes. SIRACUSA: So I'll make the reciprocal motion then, if that's No? We don't ~l ~ ~~'ATANABE: Na, It's ~ Est tecl~lical, I guess; tl~e record ~°~~I"1~-cts than ~~e dc~~'t lave tl~e votes either ~~Tay. So ~ei:'s move alo~~g to Age~lda, Item ~~~~d s~_~~~11 we ~a ree t}lat we won't have g to have a recir~rocal motion whichever way wi~oever makes n~otiol~'~ Sc~ the Cha.i~° will entertain a n~~~tion an Agenda Item No. Ycs, Mr. Iwasllita. _ IWASHITA: Thank you, Mr. Chair. I move that with regard to Item No. 2, Kohala LLC, SNIA 379, amendment on Condition 4 (time to secure ~~.al subdivision approval) of Special Management Area Use Permit No. 379, etc. that the request for the amendment be denied. WATANABE: Is there asecond SIlZACUSA: Second. WATANABE: Okay. We have a motion that is live. Do we need any further discussion on this? WOODWARD: I think this horse is dead. WATANABE: Yeah, okay. Mr. Darrow. DARROW: Thank you, Mr. Chairman. The motion before us is to deny the amendment request to Special Management Area Use Permit No. 379. with that, I'll take the roll. Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner Bowman? BOWMAN: Aye. DARROW: Commissioner Domingo? DOMINGO: No. DARROW: Commissioner Woodward? WOODWARD: No. - - ~2 + e D~k.~`~V: An~i ~Ir. Cl~a~r~1~~n? WATANABE; Nay. DARROW: The motion does not pass with four a es and three noes. y WATANABE: We have one final item. Anyone care to make amotion o - n that one, Agenda Item No. 3? IWASHITA: Mr. Chair. WATANABE: Yes, Mr. Iwashita Oh, okay, I thou ht I did mention it e ' g arller, but for the record there s no one willing to make or interested in makin a reci rocal cle ? ~ g p motion. Is that ar. Okay. Then let s address Agenda Item No. 3, which is the Plannin Director ' ' ' revoca g zn~tlated ton for Special Management Area Use Permit 379. IWASHITA: Mr. Chair. WATANABE: Mr. Iwashita. IWASHITA: Thank you, Mr. Chair. As to Item No. 3 Plannin Director g ,SMA Use Permit No. 3 , or revocation of Special Management Area Use Permit 379 re garding the Kohala LLC property, I move that the Commission a rove the revocation. pp SIRACUSA: Second. WATANABE: Okay. It has been moved and seconded. Do we need a ny further discussion on this? I assume not. Mr. Darrow. DARROW: Thank you, Mr. Chairman. The motion before us is to a r pp ove the Planning Director's initiated revocation of SMA 379. With that I'll take the roll Iwash' ~ ~ .Commissioner ita . IWASHITA: Yes. DARR.OW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner Bowman? j 7 O ~~~~~A : Aye. DA~~ZO~~T: Cofnmis~ione~~ Dc~r~~ingc? DOMINGO: Nay. DAI~ROW: Commissioner Woodward? WOODWARD: No. DARROW: And Mr. Chairman? WATANABE: Nay. DARROW: The motion does not pass, Mr. Chairman, with the vote of four ayes and three noes. WATANABE: And for the record, I don't believe there is anyone willing to make a reciprocal motion. Okay. Mr. Lim, you'll be obviously notified in writing, and I guess you have to carryon your battle with the Council. LIM: That's correct. We will be going to the County Council, I think, next week. I wanted to thank the Planning Commission, all of Members, no matter how you voted, and the Planning Director. This. is a hard one forme, hard one for Kohala LLC. We had to fight, and it's my job to fight as hard as I can; you know that. So I hope that there're no hard feelings on any side. I do appreciate the effort you guys put in, you know, regardless what your viewpoint is. I think everybody tried the hardest. So we appreciate that. So thank you. WATANABE: Okay. And then for the record, this will conclude the proceedings here on this item with the Commission, yeah? Okay. Thank you. Mr. Director. Mr. Yuen. YUEN: Well, I think it does on the rezoning. I think we have to discuss -not on the record here but -what happens with the SMA Permit's. WATANABE: Oh. (Chair had brief discussion with Mr. Torigoe.) DOMINGO: What was Mr. Chairman YUEN: No, all I meant was that I take it that Mr. Lim is making a decision to take his request for a time extension on the rezoning to the Council and not keeping it here, not continuing to defer it here at the Commission level. LIM: That is correct for all three items. r ~ `~T~IEN: well, t~1F; t~va SMA itcn~~~, ~~e c~ecisia~i i~ r~la~e bbl t~~e ~'on~n~issio~~. Al~d I ~~elieve you have a~~ opl~nrt~~nity to revate the re~.~~~es~::~a~° ~ ti~~~e Pxtension ~?n~e~. the rules. And tl~e revc~ca~ion also has nat'ueen absolutely ~.el~~e~~. LIM: Yes, we would waive oar opportuu~ty to t~~ke a reconside~•at~on. YUEN: Are you withdrawing your request for a tinge extension an the SMA Permit? LIM : No . YUEN: So what is supposed to happen with it? LIM: My interpretation is that your petition to revoke the SMA Permit has failed and my attempt to get a time extension on the SMA Permit has also failed for lack of getting five votes. So that's what has happened. wATANABE: I think the question, Mr. Lim, though, is do we continue it to a future meeting, or You know LIM: The applicant wATANABE: Practically it's almost moot because LIM: Yeah, the applicant VVATANABE: The SMA will not come about without the rezoning. LIM: We have our own position on that. I won't agree to that. But I will waive for the applicant the ability to take another vote because you failed to reach an affirmative vote either which way today. YUEN: I think we have to you know, there is a procedural issue on this that I have to discuss with Corporation Counsel, but I'm not going to waive the request for the revocation of the permit. Otherwise, we are in a bit of difficult situation because you are not the permit is not revoked until the Commission revokes it, until the Commission votes to revoke it. By the same token, it's not in effect you can't proceed under it because of the lack of a time extension. LIM: That's our understanding. YUEN: So what happens to the permit? w00DwARD: Mr. Chairman, if LIB: We believe th~~ perr~tit is tGCh~~ic~.ii~ still alive, but we can't: proceed ~dvitl~ de~Telopmcnt. WOODVVARD: If I might make a recorrlmendatior~, Mr. Chairman, and I'll ask Mr. Torigoe to comment an this. It seems to me that we ought to hold this voce on SMA 379 in abeyance until there is a decision from County Council regarding the rezoning. And by holding that Special Management Permit extension request in. advance, that they not be able to act upon it until the rezoning question is addressed by County Council. I mean, is that reasonable, Mr. Torigoe? WATANABE: Mr. Torigoe. TORIGOE: Well, I suppose that's an option if basically at this point both the attempt to revoke and the attempt to extend the time have failed at this point. But there remains the question of what happens to that SMA Permit in limbo. I suppose what could happen is that someone could, the Commission could basically put that revocation matter on hold until further moved on based on what may happen at the Council. I'm just looking at the rules right now to see if there is anything that would govern that. LIM: On the applicant's behalf we'd like to finish things up, so we don't have to come back anymore. WATANABE: Mr. Yuen. YUEN: If I could yeah, and I don't want to rush Mr. Torigoe here. First, as far as Mr. Woodward's suggestion, it's fine with me; if any further action on the SMA Permit is put on in abeyance until the Council takes action on the zoning, that's fine. What I think the effect of what has happened here is on a request for a time extension there is a provision in the rules that if it does not get a favorable vote on the first matter, on the first time it comes to the Commission, it can be brought to the Commission for reconsideration on the next meeting, and if it does not get five votes in favor the next time, then it is finally denied. TORIGOE: Yeah, and I think, you know, when you look at Rule 9-14, Revocation, it also says that the procedures shall be the same as provided under Section 9-11 F, which is what the Director was just talking about. So it seems to apply to both. And so basically YUEN: Then that's fine. TORIGOE: Yeah. So if the Director would like to have this brought up for reconsideration one more time, that could happen. Or if the parties both would say, no, that's enough, you know, these basically go away or it dies at this point. And the Director could came back and move again for revocation. And really if the applicant wanted to come back and make another application for an amendment based on changed circumstances such as a different rezoning, then that could be brought as well. WOODWARD: Mr. Chairman ~~ATAl~TAEE: Are the ~n ag~eel~~ent il~ tl~~~t, pro~edur~~lly, NIr. I~ire~tor al~d NIr. Llm? Does 1.hat sound fair? So both parties lave an opportlzn~ty to rei~~troduce at a dater dateW LINT: We wouldl~'t agree that that can happen; v~re won't stipulate to that. If he can do that, or v~~e can do that, then that's something we'll address as a later stage. I thil~k at this point in time what I'm trying to do is to just try to WATANABE: Close it out. LIM: Capsulate everytlaing, close it up. And if we are going to go to court, we get to go to court. WATANABE: Okay. WOODWA.RD: Mr. Chairman. WATANABE: Yes. WOODWARD: I had a question~for Mr. Lim. My understanding is as things stand right now that the failure to approve the time extension essentially means that the SMA Permit at this point will become invalid LIM: That's not my interpretation. We believe it's still alive until revoked by the Planning Commission. WOODWARD: Okay. So you'd rather just leave it Like it is than to have us hold this in abeyance until you get the rezoning application through Council; you'd just like to leave it like it 1ST LIM: That's correct. And it does also, Like I said, put all the legal issues in one basket once the County Council takes final action. WOODWARD: Okay, thank you. WATANABE: Mr. Yuen, your comments, so we are clear on how you would care to proceed because I sense that you wanted to somehow arrive at a conclusion on the revocation. YUEN: Well, I always like the Commission, if possible, to come to a decision by five votes whether it's something that the Department and I are advocating or not. And there is a possibility of the Commission making a decision on both the SMA Permit and the revocation. So, there is not a big rush on it in a sense that if the Council enacts a zoning that would not allow 50 units, then the SMA Permit is not valid WATANABE: It would have to berevised ~T ~JF;N : It wo ~ ~ ~ ~.~~e to ~ ~~To%e~.. o i t ~ s ol~a.y with e to defe~~ fui~the~~ act: w1 u~~.til the Council ~~cts on tl~e ~~01111~~~ 1~~.~.~~ 1°a.r sa~~in` that loo _~u~~tl~cr ~.ctioll ~~•o~tld be tal~er~ 0~1 ~12e 1 ~VOCat141~; n0, I WATANABE: You want us to still have a YUEN: Yeah, if Mr. Lim is loot willing to agree simply to defer action, then I would Like to do what the rules call for in the case where there aren't five votes either way; and that is that there is another opportunity to revote both the request for a time extension and the request for revocation. WATANABE: Okay. Mr. Lim, thls is how I'm envlsloning lt. For whatever reason you. do not get a favorable decision at the Council level, then obviously the SMA Permit would not match up with the then-existing zoning. So the SMA would be invalid anyway, and we could respond to it. And revocation of the SMA would not preclude you from contesting the Council's decision in court anyway; and depending upon the court's final decision all of this may be moot anyhow. So if you would agree to -how shall I put it - hold in abeyance the decision on the revocation until the Council makes their f nal decision, maybe that's the best that we can achieve it at this point. LIM: On the applicant's two actions, Agenda Items 1 and 2, we'll waive our right to have a revote and we'd like that to go forward. We would like the same thing to happen to Agenda Item No. 3, but I think that's the Director's call since he is technically the applicant on that action. We are the applicant on the first two actions; so we are able to waive our right to take a revote. For your information, if this matter does go to litigation, then I'm going to be resisting any attempt to revoke the SMA Permit regardless of what happens with the zoning. WATANABE: Okay. Okay, so then can we agree then we will defer action on the revocation until after the Council's vote? IWASHITA: Mr. Chair. Oh, I'm sorry. WATANABE: Yeah YUEN: Well, I would agree to that; I don't know if Mr. Lim is going to agree to that. If he doesn't agree to that, then we have to simply follow the rule on having a revote on the revocation. WATANABE: Give me a second. Would you agree to that, Mr. Lim? LIM: No. We'll go with the rules. We don't agree. WATANABE: Okay. So then if you don't agree and we are going to go with the rule, that would mean it would be agendized at the next meeting? Z8 . , TC?I~.I~~C~E~ ~G~eII, ~r~r. Ch~.ir, basically it ,ays that the applicant ar in this rase the Direccol~ rr~ay, vvithi~~ 1 O calendar days after receipt oi~notice cif the denial - that is, you l~naw~ co~iside-red as dallied dell~al - tl~el~ withi~110 calenda~~ clays oftllat 11e cart request reconsidez-at~on of that decision. Upon such regUeSt, the Depal~nlellt shall place the appllcatloxl 011 the agenda. for ItS reCOnSldel"at10n at the 11eht meet111g. And then if yol~ fail to redder a decision by a majority vote at the next meeting, then it's considered. as denied. WATANABE: Yeah, but then you have a double negative. TORIGOE: Well, that's WATANABE: We'll be voting for revocation, which is a negative, and then you get, you know - I may be jumping ahead, you may be able to get the votes - but if we are unable to achieve the votes, then we have a double negative. Then what does that mean? We are back to where we are. TORIGOE: Yeah, well, it puts you back in the status quo, basically. WATANABE: So because okay, now, because Mr. Lim has not agreed to this, then so I guess formally you should within 10 calendar days make the request, and then we can agendize your revocation for the upcoming West Hawaii Commission meeting. Is that correct? YtJEN: Yes. Actually, the 10 days would refer to the formal notice fxom the Department to the Director ofthe WATANABE: Yeah, okay YUEN: Actually, there is a letter that the Commission signs that states what the action is, and then from that point the Director would have 10 days to request their reconsideration, and then at the next meeting following that the request would be agendized. I believe the time frame is such that that would be the next -the agenda has gone out, I believe, for the May 8th meeting, and t 10 days, of course, if we are being very technical about this, the 10 days have not started to run yet -but they would be then agendized for the June, I mean, May - what is the -May 22nd meeting, yes. WATANABE: Okay. Mr. Iwashita, you had some comments? IWASHITA: I'm trying to understand. So we are finished with the 90 days? Is that basically where we are? And we have no decision; so it's basically a negative decision? Is that where we are? WATANABE: No, I don't believe so; we only had the first vote on this. They agreed to extend. So actually, what we are saying is we get to vote on this one more time at the June (sic} West Hawaii meeting and that is only i11 regard to Agenda Item No. 3, the Director initiated revocation. The applicant has already conceded that they forfeit their opportunity to ask for another vote on Agenda Items 1 and 2. So l continues to the Council and. No. 2 is dead. 29 IWASI~ITC'~: I guess I'n~ 1~ot. ~~~~derstal~di~~g. As to 1, that's tfie coning ~~latter; so we are advisory, that goes to C~or~nc%il. I s?e WATANABE: I'm really sol-ry. Can we take a recess? I really got one urgent IWASHITA: Sure. Fine. WATANABE; Please. Let's take a 5-minute recess. RECESSED The Chair called a recess at 11:02 a.m. RECONVENED The meeting reconvened at 11:20 a.m. WATANABE: Will the Planning Commission meeting please come back to order again. Thank you for allowing me to have that recess. Well, Mr. Torigoe and Mr. Yuen, have we ironed out the procedural issues? And what is the conclusion? Either one. TORIGOE: Thank you, Mr. Chair. WATANABE: Okay, Mr. Torigoe. TORIGOE: It's pretty clear that at this point with respect to the Planning Director's request for revocation, that today you were unable to come up with five votes either way on that. The time period for the initial decision has elapsed and there was no further request for extension of time. So we are in basically 9-11 F. 3, which talks about reconsideration. And within 10 calendar days after the Director gets receipt of the notice of the denial, then he can request reconsideration and it will come up on the agenda at your next meeting after that. Then if you fail to render a decision at the next meeting, then the request is considered as denied. WATANABE: Okay. So then if it fails, the revocation is considered denied? TORIGOE: Right, at the next meeting. WATANABE: Okay. But of course, this is jumping ahead, right? So, and I may have misspoke earlier; I think I did mention June, but this would be in reference to the May meeting in West Hawaii that we would be addressing this, if the Director so decides. Yes, Mr. Woodward. WOODWARD: Mr. Chairman, I had a question for Mr. Torigoe. We had two motions that were 180 degrees opposite; one was to approve the time extension and the other was the Director's proposal to revoke the SMA Permit. Now, the fact that the time extension didn't pass and the Director's initiative to revoke the SMA Permit also didn't pass, are those two both going to come back? Or are we just dealing with the Director's initiative to revoke? TORIGOE: Mr. Chairma~l. Thank you. I understand that the applicant, Kohala LLC, has waived their right to ask for further reconsideration ofthis matter; so that will not be coming ~0 1 Y ~~ack o~~ yo~~r agenda. r~,he result btin~; a.t this ~~ail~t th~~t appl~~;a~ion, Agenda. Ite~~~ ~~TO. is ronsidere~. ~e~~ied at this point in ti~~e. ~~vhirh basically l~a~:es it a ~l~al and appca~~a~~le ~cc,isian wltl~ 1`espt'~;t t0 ~-11P regl~est fOr ~!~l LXt~1~,~1011 Uf t1111e. VVOOVWAR_D : Tha~~k you. WATANABE: Okay. So we are alI clear on this, then? Ms. Siracusa. SIR.ACUSA: Yes. I would like to know if or when the Director's initiated hearing on the revocation of the SMA Permit comes back to us WATANABE: The rule requires that it come back at the next Planning Commission meeting SIRACUSA: Right, right, I understand that. What I would like to WATANABE: Which would be the May 22na _ SIRACUSA: I understand that. What I'm asking is if we could have someone, an expert witness, come to talk to us and explain about the relation between development and ciguatera, if any, as an expert witness, because that relates to SMA. WOODWARD: Mr. Chairman. WATANABE: Yes, Mr. Woodward. WOODWARD: I would think that would require reopening the hearing, which we are really kind of low to do right now. And I think Mr. Lim is right in wanting to have this settled because it seems like this body is not going to be able to act one way or the other, to be quite honest with you. And he wants to take it to court, which is his prerogative. So I would you know, we can do anything we want, but I don't think it's going to change where we are, to be quite honest. WATANABE: Ms. Siracusa. SIRACUSA: I'm willing to go with whatever the rest of the Commission wants. I understand that we, you know, closed the hearing on it. I just thought that possibly, if it's going to come back again, that some of the Commissioners might want to have more information on that topic. WATANABE: Okay. And along those lines I might want to remind you what Mr. Torigoe pointed out that especially in cases of contested case hearings you should rely on the evidence that is presented at that specific contested case healing, not necessarily taking this Book of Knowledge and saying, okay, I'm going to apply it to another hearing where it was not offered as evidence. So I don't know how germane having that discussion would be for this particular item. Mr. Iwashita. ~1 _,r:.~ _ Iti'rIASI-IITA: Tank yo~~, ~%Ir. Chair. I .~t~st wa.ntcd to clarify that i~l ~~y ~~.~r~~ a~1~ Io~~ the record -that as to the Kol~.ala LLC's Item ~o. 2, l}asi~ ally at this point ~.oha~~. LLC's option then, assuming it doesn't ask for reconside~~ati®n after it actu~.ily gets the notice of the deci sia~i, would be to proceed u~~der Chapter gl for an appeal to the court. Qtherwise, if it doesn't do that, that's the end of that. WATANABE: It's my understanding they waived their right for a second reading; so we will not hear it again. Now, whether they are going to appeal it, you know, immediately or appeal everything together or IWASHITA: Well, I guess I'm looking at WATANABE: I don't know that IWASHITA: I want to clarify under the WATANABE: That concerns us IWASHITA: Well, litigation has been discussed throughout this proceeding, or especially at the end of it; and so ifunder -what number isthis LIM: Mr. Chairman, maybe I can make things IWASHITA: Nine-11 F. 5, well, you know, ending up in 5, if I understand it correctly, basically based on the representation of Mr. Lim that there will be no requests for reconsideration, then once it is denied and then you go to 5, and basically the denial is a final and appealable decision to the Third Circuit Court under Chapter 91; so that would be that's my understanding that that's Kohala LLC's option on its request for the time extension. So I make that clear. LIM: I' d like to what I was going to say -sorry for interrupting, but I was going to try to maybe make it easier - is maybe what we'll do is with respect to Item No. 2, if the Director is not going to waive the reconsideration, then we'll do the same; and that way it keeps those two things tracking alongside, you know. I think it's probably easier for the Commission and safer for me to if he's going to keep his alive to reconsider, then I'll keep mine alive to be reconsider also. So I do withdraw that waiver and we'll both go forward to the next meeting. IWASHITA: Then Ihave afollow-up. WATANABE: Yes, Mr. Iwashita. IWASHITA: And that is under 3, 9-11 F. 3; the last sentence says "In the event the Authority fails to render a decision by a majority vote of its total membership at the next meeting, the application shall be considered as denied." So I want to just my understanding of that is that changes the five vote majo~~ity requirement. That is if we only have five, a quorum of 32 five, at the May x~~eet~n~ r~'he rz~le Says that n~~j~~~i~y vc?te of the Natal r1~c~~nl~c~sl~T~ at tl~e nest meeting;" so whoever shot~~rs l~.f~ yol~'r~~ going ~o hive m. WATANA~E: Igo, it doesn't say totar n:r_embersl~_ip present; -it says total me~~bership. You're still referring to a super majority of five. You know, if IWASHITA: Okay, that's what I wanted to clarify. WATANABE: Yeah, so it's my understanding that for any decision to carry, you still need five. TORIGOE: I concur with that. IWASHITA: Okay. It wasn't the clearest to me, real clear to me. Thank you. WATANABE: Okay. So, now I take it, Mr. Lim, that you've withdrawn your waiver; and so we will then reconsider Agenda Items No. 2 and No. 3 at the May meeting in West Hawaii. Right? Okay. So I think we've beat this one to death. Thank you. TORIGOE: Mr. Chairman, just to note that, Mr. Lim, he should, within 10 calendar days after receipt of notice of denial, request reconsideration formally. LIM: That's right. My understanding is 10 days after we've received the written denial, we'll file something. WATANABE: Okay. Thank you. The discussion ended at 11:30 a.m. Respectfully submitted, Noriko Sauer, West Hawaii Secretary PLANNING COMMISSION COUNTY OF HAWAII HEA R.Il~1G TRANS CRIPT MARCH 20, 2008 A regularly advertised hearing on the applications of Initiator PLANNING DIRECTOR (SMA 379) and Applicant KOHALA LLC (REZ 866/SMA 379) was called to order at 9:08 a.m. in the Hapuna Beach Prince Hotel, Hau Room, 62-100 Kaunaoa Drive, Kohala Coast, Hawaii, with 2nd Vice Chairman Alvin Rho presiding. PRESENT: Lani Bowman ABSENT & EXCUSED: C. Kimo Alameda Takashi Domingo Andrew Iwashita Shelly Ogata Alvin Rho Rene' Siracusa Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager (from 12:05 p.m.) Phyllis Fujimoto, Staff Planner (from 12:05 p.m.) Jeff Darrow, Staff Planner Christopher Yuen, Planning Director Steven Lim, Attorney for Kohala LLC And 3 people from the public in attendance. INITIATOR: PLANNING DIRECTOR (SMA USE PERMIT N0.379) Continued hearing on the revocation of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1St, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (REZ 866) Continued hearing on an amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5 a) to aSingle-Family Residential 15,000-square foot (RS-15) district. The property involved is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1St, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (SMA 379) Continued hearing on an amendment to Condition 4 (time to secure final subdivision approval) of Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest .l t (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1St, North Kohala, Hawaii, TMK: 5 -9- l : 8. WATANABE: The first agenda item is a part of the Unfinished Business. The initiator is the Planning Director, SMA Use Permit No. 379. And actually, the first three items are sort of all interrelated; however, we've been informed by the Planning Director that probably the proper procedure for handling this would be to address Agenda Item 2a, which is the Applicant: Kohala LLC (REZ 866) regarding the extension of time on the Change of Zone Ordinance. But before we begin this, I believe I owe this Commission an apology for the previous meeting, which we addressed the Kohala LLC issue; and I think I may have taken some liberties in that meeting and possibly led or directed the conversation a little too much as Chair. But for the record, I want to make it clear that I was not trying to dictate the results of that meeting. I just sensed from previous meetings that we didn't have the votes one way or the other; and I certainly didn't want to wind up in a situation where if we did windup with the votes, we would be trying to craft conditions on the fly. And so I need to thank Ivan Torigoe, our counsel, because he informed me that under the Robert's Rules the Chair is able to relinquish the position when we encounter a topic like this. And so previously I talked to Mr. Rho, and agreed with him that he would chair the meeting. This in no way is any slight to Ms. Siracusa; the only reason I selected Mr. Rho is because he was in attendance at that particular meeting. And of course, the other reason is because he seems to be in favor of the Planning Director's recommendation; and so I think that helps to create a level playing field, and just to show I'm sincere about that, not trying to dictate where this all heads. So with that, maybe what we can do is we'll switch places, Mr. Rho will Chair DOMINGO: Mr. Chairman. Mr. Chairman. WATANABE: Yes. Yes, Mr. Domingo. DOMINGO: May I take a few minutes also? WATANABE: Sure. DOMINGO: I think forme also an apology is in order for my irate remarks that I made responding to the action taken that day when we were on this issue. It was somewhat abrupt and I know it was not proper, in the right tone. But I would like to apologize to you and the Commission also. WATANABE: No apology is necessary to me. Thank you anyway, though. So maybe what we can do is switch positions, Mr. Rho, and conduct the meeting. RHO: Okay. Maybe before we proceed, can I call on Commissioner Bowman? She wanted to share BOWMAN: Yes. For the record, I'd like to note that I previously was employed by Gentry-Pacific, I believe, in 1993, the prior owner of the parcel; so if the Commissioners see that 2 t as any type of conflict of interest, I'd like that just on the record. I was a community relations person. Thank you. RHO: Okay. Any obj ections or concerns? How about from the parties? Mr. Lim, maybe you can step forward. And from the Department, Mr. Yuen? LIM: We have no obj ections for the applicant. YUEN: I have a question. Was part of your role to in any way promote the use of this particular piece of property? BOWMAN: Would you clarify what you mean by "promote?" YUEN: Maybe just to get a better idea what your role was. Did Gentry own other property in Kohala? BOWMAN: This was the only property that I was involved with. YUEN: Were you doing what did you do? You know, there're a lot of different things somebody can do as community relations. BOWMAN: Yeah, I did work with the planner, Sid Fuke, and mostly as a community liaison person getting input from Hui Lihikai and various community groups. They initially, I believe, were looking at a small resort like a retreat resort, was initially what was spoken about. I don't have the records, and I guess I should have looked up what I was, you know, during that time. YUEN: And then Gentry when you say you were working with Sidney Fuke, he was working for Gentry as well BOWMAN: Yes, yes. YUEN: And Gentry was in the process of planning the project at that point? BOWMAN: Right. And then I believe that he passed away. YUEN: Mr. Gentry, yes. BOWMAN: Yes. And I think things were changed. I'm not sure. I apologize. I just had a slight role of because I lived in the Kohala community, to identify community groups that could be accessed to have meetings with. Y[JEN: Were you working for them when they went to get their land use .approvals, like when they went to the Planning Commission, when they went to the County Council? BOWMAN: I do not think so. What year was that, I'm sorry? 3 _ _ e,r;~ i l YUEN: Ninety-seven. BOWMAN: No. YUEN: Ninety-six and 97. BOWMAN: No. It was prior to 95. YUEN: Were you involved in were you trying to convince community groups what Gentry wanted to do was a good idea? BOWMAN: No. YUEN: All right. More in the sense of going out and trying to talk to people about what they thought was a good idea? BOWMAN: Exactly. YUEN: Okay, fine. No, I don't have problem with your participating DOMINGO: Mr. Chairman. RHO: Yes, Commissioner Domingo. DOMINGO: As a formality, could we have an interpretation by our counsel, Mr. Torigoe, on this matter? RHO: Mr. Torigoe. TORIGOE: Thank you, Mr. Chairman. Commissioner Bowman, can I just .ask you a couple of more questions? At this point in time, do you have any current interest in the Kohala LLC project before us? BOWMAN: No. TORIGOE: Okay. And do you have any relationship with Kohala LLC at this point? BOWMAN: No. TORIGOE: Do you have any kind of relationships or any business related to the Kohala LLC project? BOVV1vIAN: No. TORIGOE: Do you have any connection with the proj ect that might result in you gaining any kind of personal benefit, whether monetary or otherwise, from this project? 4 i BOWMAN: No. TORIGOE: Do you feel at this point you can exercise independent judgment regarding the matters that are before the Commission today on this proj ect? BOWMAN: Yes, I do. TORIGOE: Okay. Yeah, it seems to me that there isn't anything that would prohibit Commissioner Bowman from participating at this point, particularly with the parties having stipulated to her continuing participation. RHO: Okay. With that, can we proceed with Mr. barrow's presentation? DARROW: Thank you, Mr. Chairman. Good Morning, Members of the Planning Commission and Mr. Chairman. I'll make it brief this morning, as this is a continued hearing on this matter. This morning we have three items relating to this particular application. Item No. l which is the Planning Director's initiation for the revocation of Special Management Area Use Permit No. 379. We have Item No. 2a, which is Kohala LLC's continued hearing on an amendment to Condition C for Change of Zone 97-102. Condition C has to do with the, time to secure final subdivision approval; they are requesting a 5-year extension. And Item No. 2a (sic} which is the continued hearing on the Special Management Area Use Permit 379, again, for Condition~No. 4, time to secure final subdivision approval, and again, a 5-year time extension request. At our December 12, 2007, hearing an agreement was made upon by the parties to be able to submit proposed Findings of Fact, Conclusions of Law, and Decision and Order as well as obj ections to each. These were all submitted in a timely fashion and they have been distributed to the Planning Commission. Since our last, at our last hearing on January 11, 2008, there was a motion made for Item 2a for the time extension for Change of Zone 97-102. The motion did not pass; the vote was two ayes to four noes. So all these matters were continued from these hearings. VVe have received some correspondences since our last hearing that I'd like to just bring to your attention. Dated March 4th is a memorandum that was drafted by the Planning Director to the Planning Commission. This is the information that was requested of the applicant by the Planning Director. The Planning Director had requested certain items be forwarded to the Planning Commission for their information; mainly this has to do with the site preservation plan and the burial treatment plan for the property. Additionally, we've received a comment letter from the Department of Transportation, dated March 10, 2008; this has to do again with a clarification request from the Planning Department to the Department of Transportation, mainly for Condition No. 2 in their comment letter that they had sent previously. And lastly, we have received a correspondence from the applicant, dated March 18, 2008; and this has been distributed both through email as well as the hard copy this morning to the Planning Commission. Are there any questions? SIRACUSA: Yes. 5 RHO: Commissioner Siracusa. SIRACUSA: Just for the record, Jeff, when you were going through the three items before us, when you got to No. 2, you referred to it as 2a; so you referred both of them as 2a. DARROW: I'm sorry. Thank you. SIRACUSA: So it was just a slip of the tongue. But I just wanted to get it, so that it's corrected in the minutes and the transcript. DARROW: Thank you. RHO: Other questions from the Commissioners? Okay, so can I call up Mike Isaacs and Gail Byrne? Both of you, I think, have been here before; so you know the procedure. First, let me swear you in. Do you both -can you raise your right hand - do you both swear or affirm to tell the truth now before the Planning Commission? BYRNE: Yes. ISAACS: I do. RHO: Okay. I'm not sure which one of you is going to go first. But whoever is going to go first, if you can start with your name and address BYRNE: Sure. RHO: And you can proceed. BYRNE: My name is Gail Byrne. I live at 68-3551 Awamoa Place, Waikoloa. I guess I'm a little confused by the agenda. We couldn't stay for the rest of the last meeting. I thought the only thing that was on the agenda was the SMA revocation, but it looks like the rezoning is still on the agenda. So the testimony that we submitted today is based on the understanding that the only thing before the Commission was the revocation of the SMA. I guess if we need to, we' 11 amend it to be aligned with all of our previous testimony at the three previous Planning Commission meetings, that we are in support of the Planning Director's initiative to downzone the land as well. So I just preface that if need be. And the written testimony that was just submitted is on behalf of six North Kohala nonprofits and organizations that represent about 400 families. And before I jump into that, I just wanted to say that, on a personal note, including today I've testified before public bodies in total of seven times; and four of those have been on this issue before this body. And it's because I feel so personally, professionally strong about this particular issue. And based on my work as a civil engineer for eight years on land use issues and water quality issues, I just don't think the land can carry what it's been zoned for. That's my personal testimony. And I'll jump into the written what was submitted to you today by those other organizations. 6 As I mentioned earlier, we were here at the last three previous Planning Commission meetings. And we are here to support the Planning Director's recommendation to revoke the Special Management Area Use Permit for this parcel. This is aligned with over 30 years of State and County resolutions, plans, and community petitions that have called for this coast to be zoned Open and Conservation and preserved. I think most significantly it's been clearly shown that the applicant just doesn't meet the conditions for a time extension. And we stated this in January. And just to reiterate, you know, the circumstances and contexts under which this application was initially approved have changed and they need to be considered environmentally and socially. There is very compelling documentation that we included again in today's testimony that the development and construction activities upslope of this area have already significantly degraded the water quality and the reef there. And you are probably familiar with Bill Walsh's DLNR work regarding this reef. You know, basically the coral has been pretty decimated and killed. And the scale of damage in this area, immediately offshore, is significantly greater than the damage that precipitated the EPA investigations and fines against Hokulia. I know based on my personal, professional experience that -that's why I'm here for the fourth time, taking time away from work -that development of any kind will only contribute to this problem, especially because it borders the ocean and this area has already been severely impacted. And there really are no best management practices in the world that they are going to guarantee that they are not going to continue to decimate this area. You know, the second point with regard to changes in conditions and contexts since this permit was initially issued is that there is an even greater body of evidence and support that the proposed prof ect is not at all aligned with what the community has consistently expressed with regard to preserving this coastline. The input the last two years during the readiness process for the community development planning up in North Kohala and the draft recommendations coming out of the focus groups, which include a calling for rezoning of the State coastal lands, which includes the parcel immediately adjacent and north of this to Conservation, all this clearly identifies preserving this coast free of development, is the community's longstanding wishes and desires. You know, the annual reports weren't followed; the conditions for exercising the options for entitlements weren't followed. There are no takings here. And there are plenty of court cases that have been cited. We cited one at our last testimony regarding a case on Oahu going all the way up through the 9th Circuit Court of Appeals with regard to downzoning private property from Resort to Conservation. There's absolutely not a takings issue here. And my understanding is that the County Council has received a whole bunch of documentation regarding this as well. But I would say, you know, one of the things we really need to consider on this island, you know, socially and those of us involved in the political arena and planning, is there is a real concern for lawsuits. They are going to force the County to take action to protect natural resources from the cumulative effects of development under the Clean Water Act and the Coastal Zone Management Act. And we certainly need to be concerned about upholding the Public Trust doctrine of our State. You know, rulings have upheld the validity of the Public Trust doctrine to trump private land rights specifically for the protection of water and beneficial uses. It's just a 7 I think you folks pretty well understand that we are about 20 years behind with respect to integrating our environmental laws and land use policy around the State; and Hawaii Island is no exception. And you know, we'll probably catchup eventually, but we need to consider that. I think if you are concerned about legalities and lawsuits, you ought to be more concerned about that one cause someone is going to get tired of it soon. I don't mean to sound threatening. It's not me. I don't want to do that. One of the reasons we are here today is because the applicant did not follow the rules and the time to exercise the conditional entitlements has expired. Really, the real reason we are here is because, you know, the County and the State have not listened to what the vision was for the community for a long time. And so we are hoping that you're going to hear what we have to say today and really what the overwhelming sentiments are. So thanks for your consideration. I need to just reflect again on a personal note that I understand - I wasn't there for itbut -the Council might have deferred action on the rezoning last week, and I think that's my fault. There was a fuel tax, I think, or something that they had to discuss and there was a time crunch. But I had asked them to introduce a floor amendment to bring it down even further the rezoning to Ag-20; and I think that caused some confusion, and so they had to defer the discussion. So I just want you to know that if there was deferral, it's probably because of me. And maybe we need to resend that request. But I'm sure over time they'll be able to understand what that request was all about. Thanks. RHO: Thank you, Ms. Byrne. Any questions from the Commissioners SIRACUSA: Yes RHO: Commissioner Woodward. WOODWARD: Yes. Despite what you say, I do feel that your testimony has basically been a threat, a threat of lawsuits. And you know, that's fine. But that's not what we make our decision on. So you need to keep that in mind, if you are addressing us. And I do take it as a threat. RHO: Commissioner Siracusa. SIRACUSA: Okay, well, I didn't interpret it that way at all; but everyone has their own interpretations. You mentioned best available control technology in doing development proj ects and how that doesn't always get us the results that we want or how they don't always, with the best available is not always good enough. I was looking at the Director's proposed Findings of Fact, Conclusions of Law, and on Page 2, No. 5 he mentions that -he's talking about hydrology - he mentions that the evaporation rate for the area is one of the highest in the State. Do you feel that it would be very difficult with that high an evaporation rate for contractors to keep the dust down even if they kept spraying it with water, and that the dust could migrate to the reef? BYRNE: Well, I think you not only have to consider the evaporation rate but high intensity winds that we have. And you know, people do the best that they can out in construction. But you know, it's just my own professional, personal experience that you can't 8 mitigate for everything. And what we're seeing I think across in many areas in terms of planning practices, we're starting to provide wide buffers between developed areas and sensitive areas because we just can't engineer enough protection in. And so I think we're beginning to look at that. DOMINGO: Mr. Chairman. RHO: Commissioner Domingo. DOMINGO: Thank you. I certainly feel like Mr. Woodward; and I feel a threat and see a threat in your comments. But you know, as I look at what you're trying to say and you're addressing a body that's only advisory, you know, I think this issue should be taken with the legislators and our County Council members; they are the ones that would address your concerns and find solutions if needed to address those concerns. And you know, you may want to know that you speak of some violations by the developer. As far as I can see, the only so-called violation was inability to submit a plan approval (sic) application in time. All others are in keeping with the General Plan. In fact, the General Plan was not changed to indicate the concerns that have been expressed with regards to the denying or revocation of the zoning in this matter; and I think it spells out clearly by the Findings of Fact by the applicant. So you know, I just wanted to let you know because putting aside everything the applicant has done the best that he could up to now, and he has made every effort to do it with exception that there has been transaction of the ownership of the property and the inability to find funding to go ahead with the property. But during the interim they have conducted studies and reports, and those have been submitted to the Planning Department. So you know, it's not like they bought the property and just sitting on their lawns and not doing anything and waiting for an opportunity to just spin it off, you know. But now as they have gone by this far, you know, what alternative do they have? And I think it's a very serious matter we should consider on this issue. BYRNE: Do you mind if I just quickly respond RHO: Can I just generally remind all the Commissioners that what we are doing now is asking the testifier questions, and our discussion can be held or will be held at a later time in this meeting. But did you want to respond to some of the Commissioners' comments? BYRNE: Yeah. I just wanted to clarify; I don't know that I used the word "violation." I did say that annual reports weren't filed. So if I did use the word "violation," thank you for bringing that to my attention cause that wasn't the intention. The other thing is I wasn't personally insinuating lawsuits. But it is a fact. I mean, I've seen those lawsuits brought in other areas. And I think if we are concerned about takings lawsuits, we need to look at those as well. I certainly understand everyone in this room for the most part is a volunteer where we take time off from our work. It's not my intent to make anyone uncomfortable; it was to share my experience and to share what I thought was what had been expressed through the community. So you know, to the extent that I made anyone uncomfortable with my choice of words, you know, please understand that was not my intention. RHO: Commissioner Woodward. 9 WOODWARD: Yeah, I'd just like to follow up on that. None of us are threatened because we have no liability. It's the County. But it was the way you said it. It wasn't what you said; it was the way you said it. And that was my concern. Now you've presented testimony, as you say, three times or four; and you've really given factual information. This time it was coming out, you know, walking softly and carrying a big stick. That was my concern. None of us have any vested interest in this. If the County gets sued, the County gets sued. It doesn't affect us at all. But I don't think that type of testimony is particularly helpful. RHO: Commissioner Siracusa. SIRACUSA: Yes. It was said that we are only advisory; and that is true for the rezoning because we submit recommendation to the County Council. It is not true, however, for the SMA portion of this. And I just wanted to make that distinction. RHO: Thank you. Any other Seeing none, thank you, Ms. Byrne. Can we move onto Mike Isaacs? First, your name and your mailing address. ISAACS: Mike Isaacs, P. 0. Box 11 b, Hawi, North Kohala. Are we on 2a, or can we like roll into No. l also? RHO: You can roll into 1, 2a or even 2. ISAACS: Okay. Basically I came into support the Planning Director's SMA Use Permit No. 379, the revocation of it. Based on the factthat - I'm not aware if any of Commissioners have visited the site but -the topography there is very extreme. From Akoni Pule, it slopes downward towards the cliff edge, and there are a lot of little gulches and convolutions on this property. So as a general contractor for many years - I'm retired now - when you talk about dust abatement, you can only be so successful in an area like that. Because of the topography, you're going to have to do a lot of cutting. And the wind will be a factor. In that area -I've been in that area quite a bit in fact, along that coastline -and the winds that sweep down off of the Kohala Mountains are very extreme at times. Generally, they pick up about 12:00 and later in the afternoon; the mornings, pretty malia. As far as trying to contain the dust that's created by all excavators you are going to have to have on the property, I don't think it's going to be very successful, to be very truthful. My concern about that is the fact that that coastline has been impacted heavily over the years by runoffs and such. If ever you were to go around that area when the waves are running, you're going to see everything turn chocolate brown. The reefs have been inundated with fine soil from that area, and it looses up when you have a high wave action. And the problem with that is that it doesn't stay there; it starts moving outward further and further and then around the point going up towards Kohala because of the way the currents are. We, the people of Kohala, are very concerned because of ciguatera. Right now, there is a standing rule a lot of Kohala people go by is that - and I fish a lot, so I know what I'm talking about, and I know a lot of people will do - is that from 5-mile marker to Kona, we won't eat anything. I have friends in Kona who sometimes I go over their house and, you know, then they give you fish. You can't refuse it; it's just not nice. So I take it and whomever I give it to I 10 explain to them, this is from Kona or this is from there. Cause I won't eat it; but I don't want to throw it away, either. The more development, coastal development that occurs, ciguatera starts moving. Right now, ulua, I won't eat it. I don't care wherein Kohala I won't eat it because it's a traveler and it eats the smaller fish. So a development like this, because of the density that was initially proposed, will definitely impact that coast and further on up towards North Kohala. So yes, I do support the revocation of this SMA based on that and the fear that ciguatera will start moving up the coast and more of the reef life will be completely wiped out. Coral in that area is gone. I mean, there are no ifs. University of Hawaii did a very good dive in that section there all the way to Kawaihae. And they said you can't find the coral; it's just covered with silt. So the more you keep doing stuff like this, the worse it's going to get. But it moves outward; and the further it moves out, it gets into that current and then it starts moving up the coast. So the impacts are long-termed. So I should hope that you support the Planning Director's request. Thank you. RHO: Commissioner Woodward. WOODWARD: Yeah, I'd like to ask you a question. Now ciguatera is related to a specific algae bloom that has actually a toxin in it. How is that related to development? ISAACS: You know, scientifically I really don't know the what for is on that; but we do understand and know that wherever you have development, ciguatera starts blooming after that, obviously from what is put into the soil by development that reaches into the ocean. I' 11 give you a prime example. Papa Akau, William Akau, lives in Kawaihae and his family go back for generations in that area. They were fishermen. He eventually became the harbor master for Kawaihae. He told me as soon as they started developing around that area, especially the harbor, he and his family as usual went out fishing, and all of them came down with ciguatera. This is quite a few years ago. Till today his family does not eat fish at all. So it is related to whatever you do to the coast. You know, no one has ever done a study on it. I wish they would. Then perhaps we can stop this bloom and what activates it. But I'm not an expert on that. WOODWARD: If I could follow up. RHO: Follow-up. WOODWARD: My understanding and I lived in the Florida Keys for three and half years, and there has obviously been a lot of development, a lot of related damage to the coral reef there; and to my knowledge there has never been a case of ciguatera poisoning in the Florida Keys. Now have there been cases that you are aware of that have been treated in a hospital here in Kona or in Hilo? ISAACS: Definitely. Papa Akau and his whole family were brought down with it. I know people in Kohala whom I fish with, certain kinds of fish they will not touch because they got it from that species WOODWARD: Well, exactly, the 11 ISAACS: And these Iget WOODWARD: The higher you are in the food chain, the more that toxin gets concentrated; and that's why people even though barracuda is an excellent tasting fish, a lot of people don't eat barracuda because they are the top order predator. But I have a real question whether development has anything to do with that, to be honest with you. As I say, there has been extensive development in the Florida Keys, and to my knowledge, not a case of ciguatera poisoning in the last 20 years. So it's a bit of specious science, I think. Yeah, ciguatera poisoning exists; but I don't think you can trigger that to, or tie that to development, to be quite honest with you. ISAACS: Can I comment on that? RHO: Sure. ISAACS: Growing up on the Big Island, we never knew what that was because it didn't exist. And this was before coastal development. There was no ciguatera. Nobody got sick. It's only when coastal development started that this started to come about. And you can find, how they say, the worst areas and look at what's beyond it. WOODWARD: Well, my understanding is that it's a basically random event related to a particular type of coral, or particular type of algal bloom that has the DNA - I think it's got a virus in it or something -that causes the problem. And again, I don't think you can say it's tied to development. You know, the fact that it occurred when this development was occurring, I think it's probably more coincidental than anything else. As I say, there has been extensive development in the Florida Keys and extensive damage unfortunately to the coral reefs, and there is no ciguatera. So and there is ciguatera in other places in Caribbean. So, yeah, okay, that's a problem; ciguatera is a bad thing to have. But I'm not sure that there is any real science that ties it to development, to be honest with you. RHO: No other questions? Thank you very much, Mr. Isaacs. ISAACS: Thank you. RHO: So we can continue and move along, and ask Mr. Lim to step up. Before we proceed, I just want to ask the audience to see if there are any other persons that wanted to testify who have not signed up. We had two signed up, and both have testified. If not, we' 11 go ahead and proceed. Can I ask both applicant and the Department to swear in? Do you both swear or affirm to tell the truth now before the Planning Commission? YUEN: Yes. LIM: Yes, we do. RHO: Okay. And we can start with the applicant, Mr. Lim. 12 LIM: Okay. Thank you for your willingness to allow the applicant the time and the ability to formulate our case and present you our feelings on the proposed downzoning and our request for the time extensions for the zoning ordinance and the SMA permit in this case. For purposes of the record, I would like to reiterate our preservation of any objections that we've raised to the process and the substantive matters that have gone on in these proceedings. And as I understand it, we are still in the consolidated proceeding; so I'd like to make my comments that I've given throughout this proceeding applicable to both the Change of Zone application and the Director's action on that, and our SMA time extension and the Director's action on that permit also. Also, for purposes of the record, to the extent that the public witnesses have given any expert testimony, we'd like to object to that because they have not been qualified to testify as experts in this matter. Okay. I missed Mr. barrow's presentation a little bit. But am I to understand they've received the March 18, 2008, letter? DARROW: Yes. LIM: Okay. what I'll do is I'll go over our overall presentation on the issues relating to the Change of Zone and SMA application matters before you. And then I' 11 go and follow up with our proposed conditions that would be submitted as amendments to our proposed Findings of Fact, Conclusions of Law, Decision and Order in the SMA matter, and also as our proposed conditions for the Commission's consideration on the time extension for the Change of Zone. As the Commission noted in its initial presentation, feelings have gotten strong. Apologies have been made, and there are strong feelings on all sides. And it's because this is a very important issue for both the applicant and the County. The applicant's position is that throughout the last 15 to 20 years all State and County authorities have recognized that the areas of makai of the Kohala Ranch prof ect, which by the way is -Jeff, can you do me a favor and put up the graphic for the General Plan, GIS, for that area -that all the areas makai of the Kohala Ranch project should be limited to urban development in that area as shown on the Land Use Pattern Allocation Guide Map for this area. As you can see, both the State Land Use Commission and the County General Plan since 1989 and also in that 2005 revision that you just went through have shown the majority of the property as Low Density Urban and State Land Use Commission Urban for the entire property. It's our position that this is the County of Hawaii's official policy position as expressed by law in the General Plan. And this is something that the County of Hawaii has supported for numerous years. As you can see, in the Kohala Ranch project, which is located mauka of this project, that is an area of several hundred acres, which is presently entitled for development of between 1,000 to 1,500 residential units and, I believe, a golf course also. Located to the south of the subj ect property, one property away, is amulti-family residential development that has been developed into half acre, essentially, farm lots or residential lots. In the past 26 years, based upon our research and a research done by the Planning Director, in the past 26 years there have been no involuntary downzonings of any properties that have occurred. Even then, and this was in 1982 -and this is part of our submittal to you in our last March 18th 13 letter -this was aisland-wide effort by the County to first amend the General Plan and the Land Use -I'll call them - LUPAG Maps for several areas across the whole island, then followed those up with downzonings to match the new zoning with the newly enacted General Plan. In this particular case, there has been absolutely no change to the General Plan, LUPAG Map. And even if you accept the Planning Director's logic that the 2005 General Plan text amendments authorize him to pursue the downzoning, why didn't the County re-designate this subject property, the Kohala LLC property, just like they did the property to the north. The property to the north was reclassified on the LUPAG Map in 2005, relatively recently, from Extensive Ag to Conservation. No such action took place for this subject property. It is, you know, one of the conclusions of the applicant that part of the reason for the proposed downzoning and revocation of the SMA permit is that the Mayor and the Planning Director have taken a position as the administration to further an agenda to minimize development along the shoreline. I know that you've heard and I've heard both the Planning Director and the Mayor saying more than once to the Commission that he and his administration have not upzoned any oceanfront properties since they came into the office in the year 2000. We believe that this proposal to downzone the Kohala LLC property and take away the SMA permit is part of that agenda, which is improperly targeted against an individual property owner and is not being processed through the required General Plan amendment procedures. I think that relieves I won't bore you with the takings and substantive due process and equal protection violations that we've talked about before; I'll leave that for the lawyers to fight about later on. But I think what we are trying to do in this particular proceeding is to recognize some of the concerns by the Commission over the potential density for the property. The density of this property at RS-15,000 square feet has a potential maximum density of 107, approximately, single-family residential lots. The SMA permit that was approved in 1997 was for 50 lots. In our March 18th submittal, we've submitted to you a redline version of the proposed conditions for both these SMA Permit No. 379 and for the Change of Zone amendment for Ordinance No. 97-102. I think for purposes of the Commission's consideration on the policy on what they should do on this is pretty it's, I think, similar in some respects to one of the matters that the Commission ruled on previously in which they modified the SMA permit but did not take away the permit, and certainly didn't even consider taking away the zoning as the Planning Director has you looking at right now. We think that the existing conditions of zoning and SMA will protect the property. VVe think that the existing conditions will provide a vehicular public access road down to the shoreline, something that's sorely lacking in the North Kohala district. This even includes one accessible ADA parking space and three regular stalls. The County of Hawaii, as you can see, if you've been paying attention over the last 12 months or so, they have various methods by which to effectively further their goals to create open space along the shoreline. One of those is the Public Access, Open Space, and Natural Resource Commission. That commission appointed by this Mayor recently finished their work and forwarded their list of selected properties to the Council. At no point in time has the Kohala LLC property ever been listed on the Mayor's wish list on that. Additionally, there is a newly adopted ordinance called the scenic corridor program as part of the Zoning Code; that is a tool that would essentially amend or revise the zoning conditions for various properties, provided that the County Council feels that it is important to adopt such a scenic corridor for protection of views and open spaces. There has been no adoption or no attempt to float that ordinance by the 14 Planning Director or any other party. These are other tools that are more properly the way that you should proceed. We feel that the method in which the County has been proceeding in this proceeding is in individualized attack on one property owner. With all due respect to Ms. Byrne and Mr. Gomes (sic) -and they've come out numerous times to testify - as Ms. Byrne admits, the real reason why she ishere -and I'm going to paraphrase - thereal reason why she is here is that the County of Hawaii and the State of Hawaii have not listened to what the community wants for this area. Now what that says to me is an admission that the legal requirements for development of this property are as they sit today with the RS-15 zoning and the SMA Permit No. 379. Effectively, that's the basis of our objection in this case, is that the legal procedures have not been followed, and that the rights of the applicant have been infringed upon. We ask for your support of our time extensions to further pursue the project. We've tried to suggest for your consideration some proposed conditions of approval that would be attached to any time extension given. We basically ask for 5 years from the time of the time extension approval, and that any further time extensions would have to be brought back before the Planning Commission for appropriate action. We've included all of the protective conditions that have already been placed on the property, and have added new ones based upon some of the things we've been hearing from the Commission during these proceedings. I stand ready to answer any questions. Thank you. RHO: Commissioners, any questions? Mr. Watanabe. WATANABE: Mr. Lim, so I think that you axe comfortable with this further reduction, actually it's a 50 percent reduction, to 25 units. LIM: That is correct. WATANABE: Okay. Okay, that's it. Thank you. LIM: What we've also added is if you go to the redline of the Change of Zone, that's probably the best one to look at because that one also includes the channelization at Akoni Pule Highway, which is not a proper subject for the SMA permit; so the Change of Zone is probably the one that includes all of the conditions. WATANABE: Yeah, thank you, I noted those. I also noted the proposal to stub out to the south-east side of the subdivision. LIM: That's correct. And we've added in the SMA conditions the applicant's proposal to set back the structures minimum of 100 feet from the shoreline; and with exception of the project entry features, all structures will be set back at minimum of 150 feet from the Akoni Pule Highwayright-of way. WATANABE: Okay. Thank you. 15 RHO: Can you give us a citation in terms of where, what page you're actually looking at or referring to? Well, first, the document. Is that March 18tH? LIM: Okay. The actual document is March 18th. And the first document after the 2-page letter is the SMA Use Permit No. 379; and it's done in redline so you can see the changes from the existing conditions. So when I spoke about the setbacks on the shoreline and from the Akoni Pule right-of way, that's Condition No. 5 under the SMA permit. Condition 4 talks about the reduction down to the 25-lot subdivision. And you can see other issues that we've added in based upon things that have been mentioned by the Commission: undergrounding the utilities, and that we would implement the public access improvements and complete them prior to submittal of any application for the first building permit for the single- familydwelling on the subject property. And of course, the conditions relating to the time extension, automatic time extension or administrative time extension have been deleted in favor of our return to the Commission. RHO: Thank you. DOMINGO: Mr. Chairman. RHO: Commissioner Domingo. DOMINGO: Yes. For interpretation by Mr. Torigoe, the submittal by the applicant regarding Bill No. 459, amended, amending the County of Hawaii General Plan, now the action was taken in November 1978 and under my signature as my former position with the County Council. How would that impact on my participation? RHO: Mr. Torigoe. TORIGOE: Thank you, Mr. Chairman. Just reviewing the particular ordinance, which Okay, this is Ordinance No. 78d; it seems to be a change in zoning of a property at Waiakea, South Hilo, Hawaii. And, I guess what I should do is first of all ask the parties if there is any issue that that rases in your mind the fact that Mr. Domingo introduced this particular ordinance. Do you feel that has any bearing on his participation today? YtTEN: The Planning Director. No, that's fine. We understand that Mr. Domingo was a member of the Council, actually a member of the Planning Commission at one time, and things may come up at the Planning Commission from time to time that he was involved in previously. DOMINGO: Mr. Chairman. I'm speaking to Bill No. 459, amending the County of Hawaii General Plan. And within the document you have policy statements regarding the development of various districts that would be Puna, South Hilo, North Hilo district, Hamakua district, and North and South Kohala districts. And making reference to point Nos. 33 and 34, "Delete Alternate Urban Expansion: Kawaihae - northwest of Kawaihae Harbor and on the mauka side of the highway," and also, "Add Alternate Urban Expansion: Kawaihae -adjacent and to the north of the Kawaihae Village housing development." Now it's within the area of the ld zoned property to which we are entertaining the possible, potential action of either revocation of the SMA permit. Now in this case, can I still participate and vote on these issues? LIM: On behalf of the applicant, we have no objections. I think the areas you were mentioning are farther away from this property. And we know that you were the Planning Committee Chairman; so you probably introduced DOMINGO: Yes. LIM: All of these at some point in time. Our position is that these are existing laws for many years, and Mr. Domingo can deliberate on these proceedings. Otherwise, he probably couldn't work on any other rezonings or other matters. DOMINGO: That was what I was trying to point out. If the fact and the interpretation is that I'm not allowed to participate or even vote on it, then my position on the Commission would be just useless. YUEN: Well, that's certainly true. And when we considered Mr. Domingo for the position, this current position of the Planning Commission, we were very aware that he had been involved in a lot of decisions made in the past. And all we ask for is that he take a fresh look at all these things in the future, that he is not prejudiced by having worked on a particular matter at some time in his prior service on the County Council or on the Planning Commission in the early to mid 1970s. TORIGOE: Okay. Yeah, generally speaking, Commissioner Domingo, it would appear that your having been involved as a lawmaker in a period of time in which some of these bills were passed does not have direct bearing on your participation today. I assume that you would affirm that you are able to approach the matters today, applying fully independent judgment and not prejudiced or biased in any particular way. DOMINGO: Yes. TORIGOE: Okay, he stated yes. Yeah, and the Parties have indicated that they have no objection. And the only thing, I would, I guess, caution anybody who has been involved in any kind of proceedings that may appear in any record that's before you is to refrain from spontaneously giving your testimony or views as to what the intent, you know, was of things that have been passed in previous proceedings. If you feel like you need to do that, then you may have to talk to me and the Chair about perhaps relinquishing your participation. RHO: Okay. Moving on. Any other questions for Mr. Lim? BOWMAN: I' d have a maybe RHO: Commissioner Bowman. BOWMAN: A question; and that might be to the Department. I'm not sure. I'm looking at the Planning Director's proposed Findings of Fact, February 20, on page 3 with the 17 archaeological inventory, and then going back to the applicant's page 2, No. 11. I'm just a little concerned because it seems that there are some significant sites on the subject property. And I'm not sure if I'm in order right now. And it says that, "should any remains of historic sites, such as rock walls ...work in the immediate area shall cease and the DLNR-Historic Preservation Division will be notified." But aren't there already identified sites? So if you can explain. YUEN: Yes. What you are reading is acatch-all or a fallback type of condition that applies if something unknown is discovered. For example, bulldozers are out in the field and they come across, they may remove say a layer of dirt, and then you see a layer of paving and maybe that's an ancient trail; and so they see that, according to this condition, they are supposed to stop. Now there has been an archaeological inventory study done of the property, and certain sites have been identified for preservation. And in my discussion I'll get into that a little bit further, and show where those are on one of the maps that you have. So there is another condition, the condition about having a preservation plan requires that the sites that have been found in the inventory survey be preserved. This is just like a fallback in case during the course of construction new things were found, then, oops, you are supposed to stop and take care of it; and not just say, oops, oh well, they are not what was found earlier in order to be preserved so we can keep going and knock it down. BOWMAN: Thank you for the clarification. RHO: Other questions? If not, I have a question. And maybe you can just help me clarify this for my own mind. When the original SMA was approved, the archaeological study was not done. Is that true? LIM: During the course of development the archaeological inventory survey, which is basically the archaeologist going out and finding everything, sending his report to the State Historic Preservation Division and them agreeing that, yes, we think you found everything; that has been done. They did some subsequent what they call preservation plans and mitigation plans for the development at that time proposed of just one house. So if the developer comes back in with the 25 lots, he will have to go back in for a new mitigation and preservation plan. These the preserved sites are already identified; and how it works in development, they would be you'll see those orange plastic fence that they put around the sites with the buffers that are approved by the SHPD. RHO: This may not be an appropriate question for you; but when the SMA was actually approved, that study was not available. The study that's attached to this March 4th Planning Director's cover letter to the LIM: I'm not sure RHO: Plan LIM: On the date of the inventory survey report. I think much ofthe RHO: Well, one is dated August 2000, a letter from Don Hibbard 18 LIM: Right. You are looking at the State Historic Preservation approval letters. The actual surveys themselves were done much earlier, I believe, in conjunction with the applicant's proposed development of a retreat resort on that property. That was when Ms. Bowman was involved. They had done what they call a draft environmental assessment to because they were going to go for a General Plan amendment at that time. And it kind of points up our position which is that if you are going to change the zoning, you should go do the General Plan amendment for this specific property. RHO: Maybe I can ask the Director when the Director testifies. But I have another question on page 11 of the site preservation plan that's dated or submitted dated August 2000, page 11. Should I just read you the sentence? It's actually Long-term Protection Measures, and the last sentence of that very short paragraph says, "The owner will be responsible for having a qualified archaeologist, on a biennial basis, verify that the sites are being preserved." So if in fact this was done in 2000, and it's 2007, there should have been two reports filed, if my definition of biennial is correct, which is every two years. So I wondered whether or not that was done. LIM: To best of my knowledge, no, because no development was being done. RHO: Well, the way I read this thing, that whole section based on this plan was not going to be developed; he was just going toput in aroad to asingle-family dwelling on the part of the parcel on - when I looked at the map - on the left side. On the right side was the burials and archaeological whatever they call those things; and then they have this long-term protection measure. LIM: I think what was anticipated was that the development would be proceeding and they would be making reports while they were developing. But since they didn't do anything, there were no reports filed. RHO: Okay, thank you. If there are no other questions from the Commissioners, I wanted to ask the Director if he had any questions. YUEN: I have some comments that I' d like to make, similar to Mr. Lim RHO: Right. But Iwas YUEN: Just some time to address this RHO: Yeah, but I was going to give you time to ask YUEN: I'm sorry, the questions on Mr. Lim. Yes, actually I do. And it's a procedural issue and I just wanted to make sure that we were all on the same page here on what we are doing today. We have the SMA permit for which the Planning Commission has a final say. However, the zoning of the property still is pending at the County Council. Mr. Lim has kept the time extension on the zoning here, and that has not gone up to the County Council; so the only thing actually before the County Council now is the rezoning that I proposed to residential 5-acre minimum lot size. So on the question of the SMA permit, the SMA permit 19 depends on the zoning. You cannot pass an SMA permit that is inconsistent with the zoning. So any action today on the SMA permit has to be contingent on the Council taking some consistent action on the zoning at some future time, extending the zoning to in the case of what the applicant is now asking for, approving a zoning which would allow a development of at least 25 lots on the property. And if the Council does not do that, does not pass a zoning that allows at least 25 lots, then any SMA permit which, if the Planning Commission were to take action on it, then becomes null and void. If the Council for example passes a zoning that allows only 7 lots on the property, then I think obviously this SMA permit, if the Planning Commission today passes an SMA permit for 25 lots, that has to be null and void. And I want to make sure that we are all on the same page with that. So that's actually a question for Mr. Lim. LIM: My position would be if the Planning Commission passes an SMA permit for 25 lots and the County Council then essentially revokes the Change of Zone and adopts a new Change of Zone Ordinance, we would have to follow the Change of Zone Ordinance. YUEN: Okay, that's fine. Then with that understanding and, I hope, with some clarifying language in the SMA permit, should the Commission vote in favor of to grant an SMA permit along the lines that the applicant is asking for, I'm fine with the Commission going ahead and taking action on the SMA permit today. LIM: We've had Condition No. 2 that's proposed in the SMA permit that makes the effective date of the SMA permit, the effective date of the amendment to the Change of Zone Ordinance No. 97-102. YUEN: When the time comes, I'll probably suggest something a little bit more definitive in the wording. But what Mr. Lim just said a minute ago is also fine, as far as putting an understanding on the record of what the effect of passing an SMA permit would be today. In other words, it basically depends upon, if the Commission were to pass it, it would depend upon further action by the Council. If the Council then passes a zoning that's consistent, then the SMA permit would take effect and would not have to come back to the Planning Commission. If the Council passes the Council eventually has to pass some zoning for the property; this cannot go on forever with nothing in place. But if it does not allow the development along the scope envisioned by this SMA permit, then basically a re-application would have to take place; there would be no SMA permit. RHO: Yes, Commissioner Siracusa. SIRACUSA: Based on what the Director has said, I would like to ask Mr. Torigoe for some guidance here. Should we make three separate motions on 1, 2a and 2, and if so, in what order? Or should a motion include all three no matter what kind of motion it is, up or down? I'm asking about the process here. TORIGOE: Thank you, Mr. Chairman. Basically, the Chairperson mentioned earlier that we'd probably want to take the rezoning matter first, 2a, just because the SMA permit ought to be consistent with whatever the zoning is. So you know, that's probably a good place to start. And generally speaking, yeah, I would recommend that there be a separate motion on each of these just for clarity sake. 20 RHO: Does that answer your question? SIRACUSA: Yes. So 2a, the first motion should be based on 2a, and then it doesn't much then the second two could be separate or RHO: Yes. SIRACUSA: They could becombined RHO: Yes. SIRACUSA: Because they're both on the SMA. RHO: Well, I think Mr. Torigoe is asking that, or suggesting that they be separate. So it'll be 2a, I would suggest that it'll be 2, and then we go up to 1. DOMINGO: Mr. Chairman. SIRACUSA: Okay, I understand now. Thank you. RHO: Okay. Commissioner DOMINGO: Mr. Chairman, thank you very much. You know, with regards to the zoning bill that is on the Council level right now, and should they go ahead and revoke the zoning, actually what would be the status of that bill? Just be null and void and that's it? And then that SMA permit would be also null and void, and it will reflect that this will be reflected in the General Plan? RHO: Director Yuen, maybe you can answer that question for us? YUEN: If the Council rezones the property to something that does not allow say, the Commission today can revoke the SMA permit or it can pass an SMA permit contingent on future Council action. If the Council then does not keep the zoning in place that would allow a 25-lot subdivision, then the SMA permit is null and void; it's inconsistent with the zoning. None of those actions will change the General Plan itself. DOMINGO: But right now what does the General Plan permit what is permitted on the General Plan for this specific parcel? YUEN: The General Plan permits a range of things including a residential development of up to 6 units per acre. It doesn't compel that the zoning be any particular density. DOMINGO: That's a very important point that I hope the Council can look at because what we are doing is permitting or not permitting a development according to the General Plan. 21 . As we all know the General Plan is by ordinance, is by law. So can we circumvent that? Can the Council circumvent that? That's all, Mr. Chairman. RHO: Okay. Commissioner Woodward. WOODWARD: Yeah, I had a couple of points. Our decision on this SMA permit is based on the zoning as it exists. Now if the Council changes that, then obviously that changes the SMA permit. But I don't think we need to necessarily make it contingent. It's based on what the current zoning is; and if they make an action, well, then that will have to be brought back to us. But you know, we can't go on presumptions of what's going to happen in the County Council six months from now. So I have no problem voting on that issue with the current zoning. Any recommendation we make with regard to rezoning goes to the County Council; that has to be acted upon later. Another thing, Jeff, I might ask you cause I know in the past you've shown us the zoning of this area, and there is a wide range of zoning everywhere from 1-acre to 20-acre in this small area that we are dealing with. Do you have access to that? DARROW: Just for reference, this is the zoning for the particular area. The light green reflects Agricultural 1-acre. The proper proj ect location which is a little darker yellow is RS-15 zoning. The light blue is Agricultural 3-acre zoning. The darker blue is Agricultural 40-acre. And then the dark green is Agricultural 20-acre. WOODWARD: Okay. They have 37 acres. Is that correct? DARROW: Approximately. WOODWARD: All right. And they are asking 25 lots. DARROW: Correct. WOODWARD: Okay. And they are surrounded by land that is all zoned Ag-1 a. DARROW: A majority of it. I mean, you can see the light blue is Agricultural 3-acre zoning. WOODWARD: Right. But all the stuff, the light green there is all 1-acre. So they are actually asking for 25 lots on 37 acres. Is that right? YUEN: The light green is Ag-5 a. DARROW: I'm sorry. My mistake. This particular zoning here, the little darker green is Agricultural 1-acre. WOODWARD: Okay. DARROW: My mistake. The lighter green is Agricultural 5-acre. 22 WOODWAR.D: Yeah, I got confused by that last time. So I just wanted to kind of clarify it. So, but there's obviously a wide range there from 1-acre to 3-acre to 5-acre to 20-acre to 40- acre; and it all surrounds this property fairly closely. But the immediate surroundings are Ag-5. Correct? YUEN: Correct. WOODWARD: Okay. Thank you. RHO: Okay. Let's SIRACUSA: Excuse me. Can wetake a S-minute recess? RHO: Yes. That's .what I was just going to suggest that wetake a S-minute, or let's make it a 10-minute recess. RECESSED The Chair called a recess at 10:30 a.m. RECONVENED The meeting reconvened at 10:41 a.m. RHO: The Planning Commission will now come back to order. What I wanted to do is we haven't given the Planning Director time for his presentation; so, Mr. Yuen, now is your time. YUEN: Okay, great. Thank you very much. Good Morning, Members of the Commission and Mr. Chairman. There're a few things that I'd like to talk about with this application. I know we've been over this in quite a bit of detail. But let me step back a minute, and first talk about fairness. And there has been quite a bit of discussion of fairness in connection with this application. Fairness is a concept that means a lot of different things to different people. And it's related to legality. It's different from legality; something can be legal but unfair. And I accept that. But it's related to legality in a sense that the legal system sets some of the bounds for what you do and it creates the context for what you do. So really the argument about unfairness seems to be that rezoning is aone-way street. ~ What I mean by that is the idea that once you've zoned something to a higher density -for example, in this case it was zoned from Agricultural 5-acre lots to Residential 15,000-square foot lots -once you've done that, it's unfair to ever change that.. I have to rej ect that proposition. As a legal statement, it's wrong. You can rezone property to a lower density; you can downzone property. The legal boundaries for that are, as I discussed in the memo to the Planning Commission, are vested rights and takings. In this case we don't have a problem with that. And it's something that has to be in the repertoire or the inventory of tools that the County has in dealing with land. Conditions change, public attitudes change, policies change; and you have to have the ability then to also change zoning subj ect to the legal limits. This is done. It's done many times throughout the country. It has happened in this county, not very commonly but it has happened. And it is something that in a right case - and I wouldn't say it should ever be done casually or for poor reasons or not in support of a significant policy - in a right case you can do it. It's even more clear and perhaps more clearly fair to do it in a context of a time extension when somebody is 23 essentially their time to, of their zoning has expired and they need a time extension. If you look at the very last paragraph of the ordinance that granted the RS-15 zoning back in 1997, it says that if the time conditions are not met, the Director may initiate rezoning of the property to its original or more appropriate classification. That's in the same ordinance that has the RS-15 zoning. So what the applicant's attorney keeps saying is it's not fair to do exactly what the ordinance says the Planning Director can do. This is what it says in the ordinance and this is just it links with the rest of the ordinance. I don't look at this action as being punitive in a sense of the applicant was bad, they didn't do what they were supposed to do, they dropped the ball; it's really not a question of that. How much investment the applicant has put into a project can influence the question of fairness on a time extension. If you think back - let me give you an example - we had a situation a few months ago on the Commission with the Volcano Golf Course Subdivision where they needed a time extension. They' d not gotten final subdivision approval. They' d gotten tentative subdivision approval. They needed the time extension. They had at that point, though, they had almost finished the subdivision. They built the roads, they put almost everything in; they were almost ready and completed. And I said sure, you know. You would look at that level of investment as an issue on the fairness of whether or not to grant a time extension. In this situation they really have not done a great deal since 1997. The basic archeological work had been done. The reports that you saw that came with our letter in early March is really about the extent of it; and that was getting approval of what sites would be preserved and really having a minimal amount of work connected with the preservation of those sites. So this is really a question and I look at it as a question of land use; and it was not a question of being punitive or being negative to the owner. What is the right use of this land? Whether you have 251ots there, or you have 7 lots, you have 50 lots, the land is going to be used for basically a residential, highly upscale development. In Kohala Waterfront, which would be similar to the 50-lot type ofdevelopment -the Kohala Waterfront being the brown area that's about 3,000 feet from this property -the lots are being offered at $1 Million to $1.5 Million each, and then people put homes on them. So this is not any kind of housing opportunity for people. So in that context, the opportunity to have more open space to be able to control where the houses go is really something that there is a lot more opportunity to create and to work to be able to fit houses in the landscape and not cause environmental problems in a 7-lot development than a 50- or 25-lot development. On the question of the General Plan, a rezoning or zoning has to be consistent with both the LUPAG Map and policies and goals of the General Plan that is the text of the General Plan. The policies and goals, you know, as I've said before, there are often competing policies and goals, and people can have differences of opinion about whether it fits or not. The LUPAG Map really serves as a filter in it; it serves as a limitation. You can develop in an area like this, for example, you can the General Plan LUPAG Map permits a housing development of or the density of that proposed or even of a greater density. But when you come to the zoning decision, you have to make a site specific and careful decision about what really should happen on the property. When the LUPAG Map is done, it's done on -the term that's used in the General Plan is broad brush - it'sdone without looking at the specific issues that may be there on a piece of property like the archaeological sites, like the drainage ways, like the viewplanes; it's really looking at broad areas on the map. And then at the zoning decision you have to make a specific decision about whether 24 this is the right use for the property. In this case what is being proposed as far as the 5-acre zoning is, it's low density urban. It's very low density, but it is we are not saying that it should be Agriculture; it's a very low density urban development. So then, let me just discuss a couple of things. This specifically relates to the SMA permit, which certainly we urge you to revoke the current SMA permit and not to adopt a 25-lot SMA permit as or extend time and allow a 25-lot SMA permit. To really talk about this, let me ask you to look at that March 4,1998 (sic), letter and then turn to, there is a map with the archeological sites on it, and that's page 4 on the Burial Treatment Plan, PHRI report. And you see the -yes, Chairman, you have the page there - and so we have a map that and the reason I'm asking you to look at this map is for two things. One is that it's a pretty good map showing the topography. And it also shows the archaeological sites. The map has a label "Burial Treatment Plan" on the bottom. And my basic point here is that there're you're being asked to approve an SMA permit for a property that has a lot of difficulties in developing it, a lot of challenges. I have a question. They may be able to get 25 lots into this property; I don't think that they could have even gotten 50 lots into this property. But you're being asked to approve an SMA permit w'th no knowledge of how this subdivision is going to be laid out. How are they treating any o these issues that I'm going to talk about in a minute? And how are they actually going to where the houses are going to be? And how are they going tohandle how are they actually going to handle this subdivision? Now, first thing I, just in passing, I'd like you to notice is the big portion of the property that says Undeveloped Area, and just to note that atone time the owner was telling SHPD that they were going to do one house on the property, and leave the bulk of the property undeveloped. The map shows the archaeological sites that have to be preserved: most of them burials, one of them being a shrine, some of them being other kinds of historic sites features. And they take up much of the middle part of,the property. For a sense of scale here, how big is a 15,000-square foot lot, all right? If you look at the see the square, it's actually trapezoid labeled 4005; and . the part that has heavy lines around it, not the buffer area with the dash lines, that's roughly 15,000 square feet, all right? You know, maybe a couple thousands more, maybe a couple thousands less. But that's about what one of the lots, the minimum lot size would be on this. So you see how that central part of the property is largely there is quite a bit of area that's taken up by archaeological sites where you won't be able to build. Now then looking to the right of that, which is on the south-east side, the contour lines that go in an upside-down V with the apex of the V pointing mauka, those represent a gully. That's a big gulch that goes way up into Kohala Ranch. It's Keawewai Gulch; that's the one that carried a huge amount of water in the storm that you have the records on that resulted in this big runoff event. That's a very big gulch. I hope they are not planning to build somewhere in that gulch. Much of this area and then again, you know, looking a little farther to the right, there is another big gulch. You can see that with the upside-down V showing the contours there. Those are 5-foot contours, by the way; each of those contour lines is 5 feet apart. This has a lot of steep land. The steepest part, if you look at the area of a burial site 16148, and you see the contour lines there, that's a little bit of a hill there on the property, or a knoll actually. where the contours are fairly steep there, that's about a 30 percent grade. To give you an idea what a 30 percent grade is like, waipio Valley Road averages about a 26 percent grade. So it's a pretty steep portion of the property there. And turning if you look at some of the other areas, if you go all the way to the left hand side of the map where it says "Easterly Boundary of Proposed Development Area" and you see the contour 25 lines just makai of that; that's roughly 20 to 25 percent grade. There are a lot of steep areas on the property. So how are they going to handle all of the earth moving, all of the house pad construction, the subdivision roads and the like on this site? We have no subdivision map that shows us that. We have nothing to go from, that shows us any of that. So -and let me give acomparison - and so my view of certainly I think that we should change the zoning to a 5-acre minimum lot size. There have been advocacies of 20 acres. There was a motion at the Council to make it 15 acres. My view is that we should make it 5 acres, which is the same as, looking at this map, the property immediately along the shoreline on the Kawaihae side, and the same as on the property on the Mahukona side. We should revoke the SMA permit; they would then come back for an SMA permit for 7-lot development. And at that time my view is that the Department and the Planning Commission should take a careful look at that. What we did is in the property immediately adjacent, which we did pass an SMA permit based on a 5-acre lot residential development, we had height limits on the houses, we had enhanced yard setbacks to create more open space. And that's the course we should take. So with that, I'll be happy to take any questions. But my recommendation to the Planning Commission is that they vote to rej ect the time extension on the RS-15 zoning, and rej ect the time extension on the SMA permit, and revoke the current SMA permit. RHO: Questions from the Commissioners? DOMINGO: Mr. Chairman RHO: Mr. Watanabe. WATANABE: Mr. Director, even if -and in many ways I don't necessarily disagree with you, okay - even if, though, we were to revoke this and we were to revert back to a 5-acre parcel, the State would still allow you only one access point. Am I correct on that? YUEN: Correct. WATANABE: A follow-up to that. So that means that in spite of the topography, which I agree probably is quite challenging, you're still going to have internal infrastructure that has to traverse all these gulches and, you know, wind around the hills and etc. And given that, you know, your smallest plot would be 5 acres, is it possible that that might make it even more difficult to develop this property? YUEN: Well, it depends on how it's laid out. It depends on where you want to put property. Now, in a 5-acre zoning, you'll have seven that you are going to put someplace. And there is an administrative mechanism where that seven would not have to be on equal s-acre pieces. There is a PUD mechanism. So administratively the Director could you know, if they had a plan that puts more in one area, the Director can administratively allow that. WATANABE: Okay, so we would RHO: Follow-up, Mr. Watanabe? 26 WATANABE: Yeah, please. May I? RHO: Yes. WATANABE: Okay. So - let me see if I'm getting this correct -you are saying that it's zoned 5-acre, but because it's a Planned Unit Development, that these 7 houses or 6 houses could be congregated in one particular area of this 37.8-acre parcel. YUEN: That can be done with a Planned Unit Development, yes. WATANABE: Okay. RHO: Commissioner Woodward. WOODWARD: I'd like to know and maybe Jeff can answer this question. Hello, Jeff. How many lots are there above this area? And how many lots have been do you have any idea how many of these lots have been built upon? You know, cause the concern we have here is, okay, runoff and so on and so forth, damage to the coral, and some kind of specious arguments about ciguatera poisoning and all that sort of nonsense. But it looks to me like that area is already developed up above. And I don't know how many homes are up there, but it wouldn't sound to me like putting 25 more in this area is going to make a big difference. That's just kind of my gut feeling. But do you know how many homes are up in that area? DARROW: Unfortunately, specifically I don't. I mean, it would be a guess and probably a bad guess. I believe the Planning Director would have a better guesstimate as to how many houses, and maybe even the applicant in regards to I haven't been out in this particular area in quite a while. WOODWARD: Okay. DARROW: Sorry about that. RHO: Director, do you have a comment about or an estimate? YUEN: Well, Kohala Ranch has 477 lots. Kohala Estates, I don't have a number in my head but fewer than Kohala Ranch. There is an urban area where kind of the green area between the two blue areas is an urban area in Kohala Ranch, and it has a lot of potential for development. So it's true that there is a lot of potential for development in that area mauka; and that is a concern. I wouldn't minimize the importance of doing what we can on the coastal property. As far as how many houses are built, I don't have a figure for that. I know I had a figure of 60 in Kohala Ranch roughly 5 years ago. I think it's under a quarter built up. Kohala Estate is probably a little more built up as a percentage than Kohala Ranch. The urban area in Kohala Ranch is not built. There may be a couple of houses in there; it basically hasn't been developed. WOODWARD: So maybe 200 homes up in that area. Is that a rough guess? 27 Y[JEN: That would be, for currently as a rough guess, ballpark, yeah. WOODWARD: Thank you. RHO: Commissioner DOMINGO: Thank you, Mr. Chairman. Is it within the purview of the responsibility of the Commission to determine the buildable areas of the parcel? Is it within our responsibility to make that determination? YUEN: Well, Ithink Yes. In looking at the feasibility of a proj ect or you know, and this is part of basic analysis of a site. If there are areas that are too steep, then if you zone them to develop, then people may try to develop them even though they are very difficult and they require a lot of site work. If you are concerned about runoff and problems due to grading and clearing a site, then you're going to look at the steepness of the slope. If somebody says that theyare -just to give slot ofexamples -somebody says that they are going to do affordable housing, but the site is very steep and you realize that its site work is going to be very expensive, that's not going to be feasible. So looking at the characteristics of asite itself is an important part of planning. And looking at things like gullies and hills and other kinds of problem areas is a significant part of what we should be doing. RHO: Follow-up, Mr. Domingo? DOMINGO: Yeah, no, I want to go on. You know, as I listened to you and as I look at the role of a Planning Commissioner, you know, it would entail a lot of time and research to determine, in this particular case, if the project was feasible and that if built according to the number of lots that they were originally granted, you know; it would have been impossible for the Commission to do that. And I would say that, you know, at the time that this SMA permit was forwarded to the Commission, and approved at that time, then I would say that the Planning Director or the Planning Department should have already determined the number of buildable areas and the space that's required to carry on with the project. But lacking that, you know, what we are looking at, the developer that's why we require the developer to submit a plan approval with a submittal of plans for the project; and I feel that is where the Planning Department will determine its buildable area and the method and the mitigating steps that need to be taken. And that's why wehave we expect all developers to go through a plan approval process. And if that is left to the Commission or the Council, then you know, it would be taking a part of the administrative work away, and relegating it to the law-making authority or the decision-making authority in this case. And that is wrong. That's my feeling. I mean, I'm not going to sit here and go over the entire proposal by the applicant, and say, okay, how many lots are planned to build, now let's see, what's the topography, and at what slant or what grade it is, and how deep is a ravine and how wide is it; and then we would then include regular conditions in the SMA permit to address those issues. You know, that's why we have a plan approval process. We can approve in a broad term and express our concerns about the possibility of not being large enough to accommodate the number of units, but we leave them up to the plan approval process. And that's how I'm looking at it. RHO: Do you want to respond to that, Mr. Director? 28 YtJEN: Well, up to a point, you know. There is a level of details, I mean, the Commission is not supposed to would not get into. But especially when you are looking at an SMA permit and you have to the Commission has to make findings about that the proj ect can be done without significant and adverse environmental and ecological effects, the Commission has to be satisfied that that can be done. I'm advising you as Director that I'm not satisfied that they with what they've shown us, that can be done. I mean, the comment was that the Department is supposed to make this determination. But you know, the Commission has to vote on an SMA permit. And my recommendation is that they have not shown that they with what we have here, that they can do a subdivision like this without significant and adverse environmental and ecological effects. Now the Commission certainly there is a level of things that are taken care of at subdivision. And I would urge that when well, the Commission has to follow its the Commission has responsibilities in an SMA permit that are different in just looking at the zoning, for example. RHO: Commissioner Watanabe. WATANABE: Yes. Mr. Director, I'm referring to the letter we just got this morning, I believe it was, March 10th, from the State Department of Transportation. It's dated March 10th. And on the first page, last paragraph, they indicated that perhaps the most effective control regarding controlled access would be the County's requiring developments on both sides of Akoni Pule Highway to provide interior connectivity between developments by constructing their part of a continuous road that parallels their arterial highway. And you know, earlier Mr. Lim had indicated that within the proposed conditions that he would provide one to the north. And as I recall in your Findings of Fact, the parcel immediately adjacent to this is owned by the State. And I'm wondering if it's even necessary to provide a stub to the left, to the north of the subdivision. YUEN: Yes. I hope, you know, regardless of how far you go with controls on private property, I hope that the State ultimately respects the desires of people that there be open space along the shoreline. And there is a great deal of State property along the shoreline; and I hope that the State property isn't developed someday. I mean, the State has if you could talk about land for housing or other kinds of needs that the State has, there are loads of property that would accommodate those kinds of things. So I hope that it's not developed. So I don't see a great need to have a stub to the north. I don't know I don't think that that does much. WATANABE: Yeah, I okay, thank you, because that was my thinking also; you just create more impermeable surface for hopefully no reason at all. SIRACUSA: Can I comment on that, please? RHO: Commissioner SIRACUSA: Also at this point us talking about connectivity between the different subdivisions, we haven't seen the lay of the land there where the gulches are, where the burials and archaeological sites are. So it might not even be possible, you know, for a road to be put in 29 between the two subdivisions because of those considerations. So I think that's sort of a moot point at this stage of the game. RHO: Commissioner Watanabe. WATANABE: Well, the way I'm interpreting it is it's one of the conditions for the subdivision; so if it doesn't happen, if the subdivision is not going to happen, then everything is moot, you see. So it's in writing as, you know, a requirement, yeah? So if it can't be done, then as far as I'm concerned, the whole discussion is moot. RHO: Other questions from the Commissioners? BOWMAN: I just have a comment because we are saying County requiring but when it starts, it says, "Perhaps the most effective control regarding controlled access would be the ty' q ' ' g " So it's saying "perhaps" this "would be;" it's not saying that they will Coun s re uirin require it, perhaps. So I think we need to take that in context. WATANABE: May I? RHO: Sure. WATANABE: When I said it's a requirement, I was referring to the applicant's proposed conditions and not from this letter. And within the applicant's proposed conditions they have committed to creating a southern link to the adjoining subdivision. BOWMAN: Thank you for the clarification. RHO: If there are no other questions from the Commissioners, I do have a question. And I wanted to follow up on my question to Mr. Lim about the archaeological survey or report, and ask the Director whether or not that was available to the Commission when the Commission approved the SMA. YUEN: I think they had a survey showing where the sites were. They didn't have a preservation plan. RHO; And did they also have a schematic, like we usually do for - as far as I can remember -like proposed drawings for what would be built and where it would be built. And I know it isn't the official plan and hadn't been approved or hasn't been approved, and it's to be approved or to be modified and approved. But generally speaking we have a plan that's presented to us prior to us or as we are looking at the SMA approval or disapproval. So did the Commission at that time have access to a diagram? YUEN: Yeah. And this is why I don't think you should make the assumption that the 1997 decision was a sound decision. There was a subdivision plan for 50 lots submitted, and I have it here. I don't know if it's something that's not everything that was with the '97 application has been circulated to the Commission. So there is a subdivision plan that shows how they would lay out 50 lots. There axe some really big problems with that subdivision plan. 30 There are lots that are largely within a gulch. They do show some archaeological sites; they don't show all the archaeological sites. They don't show the amount of area that would be taken up by the buffers shown on this preservation plan that you have here, that I had you look at a few minutes ago. So, yes, there was one, but there are If we want, we can look at it; I can show you what the problems are with that site plan that was submitted. RHO; The other question I had was whether or not you had a chance to review the proposed conditions that the applicant is now suggesting. And I also had aconcern in relation to that, I had a concern about this March 10th letter from the State Highways - I guess that person is writing from the State Highways -and that same paragraph, the last paragraph on the first page, regarding the interior connectivity; and whether or not I mean, I just can't imagine without, I guess, looking at a diagram to see where that - what is it called -parallel road would actually be and how that would actually look from the Highway. I mean, do you understand what I'm saying? So YUEN: Yeah. Sometimes we get comments that are correct in general terms but not necessarily very applicable to the reality of the site. What I mean by that is, yes, in general terms it's a good idea to have a parallel circulation. And one of the big problems that we've had in the county is we have not developed parallel circulations. We typically had zonings come in for one spot and they do their own road system and come out to the highway, and then the next zoning comes in for the next piece of property and they do their own road system that comes out to the highway; you don't have any connection between the two. We are trying to turn the ship around and fix this problem generally. However, when you look at - so that's the validity of this comment in general -but when you look at this specific application, the idea of connecting to the north where hopefully and actually by the General Plan, it should not be a developed area. I don't see the need to have a stub. It doesn't hurt to have a stub, if you have a stub likely to be a stub for a fairly long time. And as far as connecting to the south, I don't think we had a requirement. You know, that was again there's just a fairly small number of lots to the south. I don't think we had a requirement that they connect this side. And they do have their own access to the Highway; so you are not eliminating a highway access by having a connection between the two. You make it easier for people from maybe one subdivision to visit the people in the other subdivision, but you are not really eliminating highway access points. RHO: So the road could actually be a normal subdivision roadway, like between Coastview and Kona Palisades, and I think it runs through Wonderview. Is that what these guys are talking about from the State Highways? YUEN: Well, what they are saying is that it's a good idea to have parallel connections on a local road system, parallel to the main highway. And yes, in general that's true. But given what is the planning and likely development of this area, I wouldn't push it in this particular area. I mean, yes, it's fine to have a condition that says stub to the north; it doesn't hurt. But it's not likely really to be very useful. WATANABE: Mr. Chair. 31 RHO: Yes, Commissioner Watanabe. WATANABE: Yeah, the only reason I brought that up is because on page 2 of that letter from the State Department Item No. 4, they had recommended, "A stub-end road connecting to the north property should be provided to encourage a lateral roadway system But when I combine that together with Mr. Yuen's Findings of Fact, that the State actually owns that land and, you know, and the State saying that, oh, we're going to preserve the viewplanes; then why does the State then recommend the stub? For public access? I'm not sure. And that's why I made that comment: However, you know, within your testimony earlier you also indicated that the subdivision immediately to the south of this particular parcel already has an existing access to Akoni Pule Highway. So by providing connectivity or lateral connectivity we are not accomplishing much of anything? YUEN: Well, you are not eliminating the fact that that subdivision has at least - and I can't remember off the top of my head -that subdivision has at least one access to Akoni Pule; and that's not going to get closed off by doing this. And as far as taking local traffic between the two subdivisions, it's a very low volume of traffic that you would ever have between you know, whether you had this at 25 lots and the other one, I think, is 10 or 11 lots, it doesn't really do much. WATANABE: Yeah, okay. Follow-up. So you are saying that the subdivision immediately south has a maximum of maybe 11 lots or so. YUEN: Off the top of myhead - I can't remember - I think it's 1 1, though, on 63 acres WATANABE: Okay, well, that's close enough YUEN: I think it's 11. WATANABE: Okay, thank you. Mr. Chair. RHO; Yes, Commissioner WATANABE: I have a question for Mr. Lim. Correct me, if I'm wrong - I am referring to your proposed conditions now -and correct me, if I'm wrong; but I don't recall that we had a requirement to connect to the south. And given that the adjoining subdivision potentially has only 11 lots and also given that the topography towards the south with that gulch, etc., I'm wondering why you included that if we didn't already require it, and if you' d like to reconsider that now. LIM: The requirement for a road stub to the south is an existing condition of the Change of Zone Ordinance. WATANABE: Oh, it was? LIM: Yes. 32 WATANABE: Oh, I'm sorry, I'm sorry. LIM: Part of the roadway design for this particular project would have taken into consideration the drainage, the burial sites and all these other things. And like Mr. Yuen said, that was what we were starting to do when we received his notice back last year on the proposed downzoning. One of the tools that we were looking at is a Planned Unit Development, which is essentially a tool that allows you to take whatever lots you have in terms of density and cluster them into one or two or three PUDs, and we will be doing that to avoid the drainage areas and to minimize the amount of roadway that would be built just for runoff and cost purposes also. So this is the reason why we kept in the condition in SMA Permit 379, which is Condition No. 6, which requires that a preliminary site plan be redesigned to create mauka-makai view corridors, and address all these other site constraints that you have, and then you would submit along with the subdivision plan. We believe that the conditions as proposed, which require us to set back from the shoreline 100 feet and from the roadway at the top 150 feet, create this buildable area, which would best allow us to use the property without impacting on the resources. RHO: Okay. If there are no other questions from the Commissioners, Mr. Lim, do you have questions of the Department or the Director? LIM: No, I don't have any questions of the Director at this time. I think he has given you his position and we've given you ours. We believe that the design of the lots is something that should occur down at the administrative level through a plan approval with the Planning Department; and that's already provided for in the conditions. And we ask for your support. RHO: Mr. Watanabe. WATANABE: No, no, no. Because if we are going to go into discussion, if there're no RHO: No, no. We still have to give them final WATANABE: I beg your pardon? RHO: They still have to do their final arguments. WATANABE: Oh. No, I don't haveany RHO: Okay. I have one other question that I'd like to bring up, and this is .for Mr. Lim. As I was mentioning to the Director, it's my feeling or my belief that generally speaking when an SMA permit is being requested, and I'm sure in other cases, there's a diagram that's presented to the Commission for us to look at in terms of where the roads might be, where the lots might be, etc. He says that there was one for the SMA that was approved approximately 10 years ago. My question is whether or not you have one for the current revised plan for 25 lots. 33 LIM: No, we do not. We are applying for a time extension on the existing SMA permit with SO lots; and so that's the site plan that we are basing our request upon. And this resubmittal for the 25 lots was to try to address the Commission's concerns on the density and also on the impacts. I think the other conditions that we implemented through some of the comments that you've made with the buffers and the studies that are required prior to us going forward are going to adequately address the impacts. RHO: Okay. I think we are ready for final arguments and we can begin with the applicant followed by the Department, and then concluded by the applicant. Mr. Lim. LIM: I'll be brief. The action that you are looking at today, especially on the downzoning and the revocation of the SMA permit, is something that the Planning Commission has very rarely, if ever, taken up. You've been, most of you, sitting on the Commission for something in the neighborhood of 6 years or more, some of you. And I think you know that the time that you've seen SMA permits revoked are very rare, if any. We believe that the actions taken by the Director are aimed essentially only at this property, and are in effect -what you might call - an illegal spot-downzoning. We feel that the legal procedures that are required to downzone the property and revoke the SMA permit are lacking. And we would say to you that although that the applicant in this case has not followed the time conditions in the Change of Zone and the SMA permit, they are not too much unlike a lot of other people that you see. I mean, the Director cited the Volcano Fairways proj ect, which did finish its roadways, and that was probably the closest that I've ever seen on a time extension. But the vast majority of the people who come to you for time extensions have not constructed their projects, and it's very similar to this one. So we feel that the Planning Commission has the authority to approve the time extension for the Change of Zone and also to issue the SMA permit based upon the proposed conditions. And we would ask for your support. Thank you. RHO: Mr. Director. YIJEN: Yeah, I' 11 also be very brief, I hope. We have a decision to make as to what is the right use of this land; it's a decision that we have to face simply because the time has run out and now they need a time extension. This is a logical point at which to consider, was that decision a good one back in 1997? And does it fit the needs of today, the wants of today? And what is the best use for this land? Probably And we do have to respect that they have a right to some economic return from the property. There is a lot of sentiment that the property should be kept completely open. The 5-acre zoning does allow significant financial gain from this property, not as much as perhaps another zoning, but it does preserve a significant value for the property owner while implementing to some extent the desire to have more open space along the shores. It's the same a~s the zoning of a property that came in front of you, the Planning Commission, a couple of years ago, and got an SMA permit based on the same concept of 5-acre lots. So for those reasons -and this is not something that I would casually bring to the idea of revoking an SMA permit or changing the zoning to a lower density is not something that I would casually bring to the Planning Commission -but for those reasons I think we should go ahead and do that. The final thing I'd like to say is that if the Commission is inclined to vote on extending the time for the SMA permit, I think a slight change to No. 2 would be useful; and it would say, "The 34 effective date of this Special Management Area Use Permit shall be the effective date of -and instead of saying "the amendment" - "a consistent amendment to Change of Zone Ordinance No. 97-102." But there are good reasons to make a change in course as far as the use of this particular property. RHO: You have closing remarks, Mr. Lim? LIM: Just one final comment. The Planning Director has asked you to recognize the public attitudes and the community concerns. And if that is true, if that is truly the wish of the community, then we say, fine, do a General Plan amendment. And then do the downzoning, like you always have done and which you are required to do. Thank you. RHO: Okay. Commissioner Woodward. WOODWARD: Thank you, Mr. Chairman. I have now, and have had, two basic problems with what we are being suggested to do. And as usual I'll be blunt, and I'll try and keep it RHO: Mr. Woodward, can I interrupt you? WOODWARD: Yes. RHO: What I'd like to do is close the hearing WOODWARD: Okay. RHO: And then we can move into discussion, if that's all right with the Commissioners. So WATANABE: I'll move to close the hearing RHO: Can we have a motion? WATANABE: I' 11 move to close the hearing. WOODWARD: Second. RHO: It's been moved and seconded. But before we actually take a vote, what I wanted to do was go through the documents that we received recently to make sure that it's on the record, and the applicant and the Department have no objections for its inclusion. I'll just start at random. There is one that's dated March 4th; it's from the Planning Director to the Planning Commission, and it includes the archaeological studies. There is one that's dated March 18th addressed to the Chairman of the Planning Commission from Steven Lim; and it includes the conditions or changes to the conditions for the proposed SMA Use Permit 379. SIRACUSA: Excuse me, Mr. Chair. RHO: Yes. 35 SIRACUSA: I was under the impression that we were going to take up the Change of Zone item first; and what you are looking at is the SMA. So shouldn't we be RHO: No, that's because we just had this hearing WATANABE: . We combined RHO: And I'm just making sure that we have all the documentation that has been referred to in one way or another SIRACUSA: Okay. RHO: Included for the record. And then we'll move back to the motion to close, and then open up for discussion and any other motions that the Commission wants. So where was I? There is a letter to the Director from Brennon Morioka, dated March 10th. There is the applicant's Kohala LLC proposed Findings of Fact, Conclusions of Law, and Decision and Order that's date-time stamped February 1 lth. There is from the Director, or the Department, the Planning Director's Objections to Applicant's Proposed Findings of Fact, Conclusions of Law, and Decision and Order that's date-time stamped February 28th. There is the Planning Director's proposed Findings of Fact, Conclusions of Law, and Decision and Order date-time stamped February 28th. There is also Applicant's Exceptions to the Planning Director's Objections and the Planning Director's Proposed Findings of Fact, Conclusions of Law that's date-time stamped March 10th. And today we received from public testimony, a 4-page document dated March 19th, signed by various people including Stephanie Naihe Laxton. So are there any obj ections to its inclusion for the record from either the Department or from the applicant? YUEN: No obj ection from the Department. LIM: No obj ection from the applicant. RHO: Okay, thank you very much. So we can move to discussion on the motion, if there is any discussion on the motion, which is to close the hearing. If not SIRACUSA: Did we get a second on that? RHO: Yes, we did. SIRACUSA: Okay. RHO: All in favor, say aye. COMMISSIONERS: Aye. 36 RHO: All opposed? Motion carried, and the hearing is closed. I guess now we can open up for discussion. Commissioner Woodward. WOODWARD: Well, a.s I was saying before, I'll be brief and blunt as usual, and try and keep it simple. I've had a couple of problems with this whole process from the beginning. And the first problem is I think we are trying to legislate changes in zoning without being a legislative body. Honestly, where do we get the right to change the zoning on a parcel for what would be a minor infraction? We bypass those all the time, you know. A lot of people come in for extensions. They may not have met their time requirements and so on and so forth; but that happens frequently. The other problem that is really of more concern to me is that there really hasn't been much communication between the County and the applicant as far as trying to work out, you know, an amenable solution to this problem. And in fact, I would say, if anything, Mr. Lim and the applicant have made significant compensations; they've reduced the lot size from 50 to 25, they've agreed to boundary agreements, and a number of things that were not in their original SMA. And they tried to work with the County. And you know, it looks to me like they are getting railroaded, to be honest with you. And that's what bothers me. That's the main thing that bothers me. RHO: Commissioner Watanabe. WATANABE: I have a number of comments. But first of all, I'd like to echo some comments that Lani Bowman made at our last Planning Commission meeting in Hilo; and this was with regard to an extension of time, Change of Zone for Nani Mau Gardens. And she had indicated at that point that "maybe if you were coming to me now asking for this density, I wouldn't approve it; but seeing that you already have it, I'm more likely to go along with it." I don't entirely disagree with the Director. And I more and more, as I spend more time on the Commission, I'm becoming a little more concerned with SMAs and viewplanes and things of that nature. But you know, where I think I disagree significantly with the Director is with the preservation of previously granted entitlements. And the Director did indicate that not much was done on the parcel; and I guess that's debatable. However, from previous testimony I do recall that the developer has already satisfied the affordable housing requirement, which was a condition. They also secured easements for underground electrical, which had to go below Akoni Pule Highway; that was another issue. And I also recall they had secured water rights from Kohala Ranch Water Company at a cost of approximately $600,000. And to me that along with whatever other efforts they've made is rather a significant investment. Now, it's debatable, maybe they can make that back with 5 or 61ots or 7 lots or whatever it turns out to be. Maybe not. I think, though, here if we were to merely extend the time, extension of time, then all we axe saying is we are setting precedent for how we would vote on entitlements or preservation of entitlements. If on the other hand, as now the applicant is willing to concede, we are able to secure what is essentially a 50 percent reduction, I think that's sending a clear message to the public that, no more, you know, the density should not be this great. Within the Director's Findings of Fact, Conclusions of Law, he did indicate that to the north of this parcel all of the property iszoned virtually all of the property iszoned Ag-5 and it's an expanse of about 8 37 miles according to my recollection. I think that's sufficient, you know, for public viewplanes, etc. And where I'm also concerned is we had one SMA that we turned down - it was D-Bar Ranch LLC -and this was fora 120-unit condominium prof ect on 44 acres over in Kona. They appealed. I believe it was Judge Strance concluded that we denied it in error. Of course that wasn't a zoning; that was an SMA. It was remanded back to us much like how Tbbetson was remanded back to us. And then we spent whatever time on that. You know, in conclusion I think if there is anything that we really ought to do, maybe we ought to ask the Director to look at ways to We have building height limits, but we don't have restrictions on how high we can build building pads. And I don't understand the significance of a building height limit, if there is unlimited you can build a pad up unlimited. And I'm referring to Kohanaiki, you know, where now when you stand in the parking lot, you can't see the horizon because the building pad is higher than the horizon. So why do we even have a 45- footbuilding limit, if we are going to allow stuff like that? I mean, I haven't said anything about this in the past because they did make also considerable concessions. And I believe their setback was 1,500 feet, if I recall properly. But still it makes it even more difficult, I think, for other people that are coming forward at a later date. So I think the applicant's proposed conditions are a reasonable compromise. And I think we are also serving public interest by making some clear statements in the two areas I previously mentioned. DOMINGO: Mr. Chairman. RHO: Commissioner Domingo. DOMINGO: Thank you, Mr. Chairman. I feel that to hold adeveloper - in this case - andthe representative to make revisions and amendments to a zoning code and an SMA permit in order to acquire an approval is wrong. The original owner applied for rezoning, they followed up with an SMA permit, all based on what is stated in the General Plan. And ever since that time until 2005 there has not been an amendment to the General Plan within a concern in this specific area. Now, I think the only ground that we can see in trying to deny if we were to deny the applicant to go ahead and do work on this proj ect, it should have to be based on the ability of not meeting the plan approval (sic) deadline. But the applicant has revealed to us the difficulties that they were having, of course, change of ownership and the process to which they conducted, submitted a number of reports. And they have done this in good faith all the time, not trying to do any end- runs or trying to fool us, I mean, trying to convince us that this is done and that on their part it hasn't been done. You know, it was all in good faith effort. The General Plan has not changed at all. And if the people along the coast in North Kohala, as indicated, felt very strongly about prohibiting any development or curtailing any such efforts in this area, why has not the County Council or the Planning Department initiated any change in the zoning or the LUPAG Map in this area? Why haven't they changed the policies on the element of growth that is to be taking place? There has been no change or effort whatsoever by the Department nor by the County Council. And then what we find here is an approach, in my 38 opinion, to negate everything that has happened and take away from the developer all that he has put into it. That is unfair. You know, the doctrine of fairness is something that I have lived by throughout my life and especially serving on the County Council. Fairness and reasonableness has to be shown. And I think that is lacking here. The applicant has attempted to sit with the Planning Department for probably about 5 or 6 times; and there has not been any valid kind of meeting to discuss issues to mitigate the concerns that they had. It was just a stone wall. There was not an opportunity given to the applicant to go in and discuss the issue. And because of that, even the applicant feels that they have been in some ways targeted; and for whatever the reasons, I don't know. But you know, it makes me feel very concerned about the authority that we have and oversight that the administration and the Council have with regards to planning issues. Planning is a very important aspect in the growth of our county. And it has to be done and it has to instill within the people within the community a degree of trust and fairness in this regard. And I think, you know, that's why I feel strongly about this whole issue. Thank you, Mr. Chairman. RHO: Commissioner Woodward. WOODWARD: Well, just to echo what Commissioner Domingo said, the letter of the law -and justice are not the same. And what we are doing here is to try and change the zoning for political expediency. And in fact, Director Yuen so much has said that the people right now want to have bigger lots. Well, what are the people going to want 10 years from now? Are we going to go on public opinion? Are we going to go on polls? Or are we going to go on what's really just? You know, if this matter had come before the Planning Commission, and there was not this political consideration, we would have approved it in a heartbeat. Their infraction was minor. There is no reason to downzone this. And the applicant has actually made significant concessions, you know, despite his attempts to try and deal with the Planning Department; he has made concessions on his own. So you know, as I say, this is being done for political considerations, as far as I'm concerned, this whole episode. And it's unprecedented. It happens so infrequently. And I can't see a good reason to do it except for well, it's the politics of now. And the politics of now are not going to be the politics of tomorrow. And so, you know, I can't see any reason to deny the applicant's recommendations, to behonest with you. SIRACUSA: Mr. Chair. RHO: Yes, Commissioner Siracusa. SIRACUSA: I notice we are having an awful lot of discussion without there being a motion on the floor. So I would like at this point to make a motion. And then we can discuss away. In the matter of REZ 866, Kohala LLC being the applicant requesting an amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97- 102, Imove that an unfavorable recommendation be forwarded to the County Council based on the Planning Director's Findings of Fact, Conclusions of Law, and comments to the Commission, as well as several other things, which will be other reasons which I would like to discuss but not necessarily make a part of the motion because that would be too longwinded. RHO: Is there any second? Your motion dies for second. 39 a WOODWARD: Mr. Chairman. RHO: Commissioner Woodward. WOODWARD: In the absence of a second to that motion, I would move that we approve the applicant's request for a time extension on REZ 866 and forward a favorable recommendation to the County Council. RHO: Is there a second? DOMINGO: Second. WATANABE: I' d like to clarify, please. Would that be subj ect to - I assume it is but - wouldthat besubj ect to the proposed conditions by the applicant, Kohala LLC, Items A to - I think it was WOODWARD: I WATANABE: X, which restrict development to 25 residential lots and set the setback at 100 feet WOODWARD: I believe, if I'm not incorrect, that that's actually part of the SMA permit, not the rezoning. WATANABE: No, no, no. It's also part of the rezone. WOODWARD: Okay. Well, I will be happy to accept that as an amendment. DOMINGO: I'll accept that as a second also. WATANABE: It's part of Change of Zone Ordinance 97-102. This was submitted with hls - excuse me. RHO: Just to add to the confusion, though, on the WATANABE: This was submitted as part of the material from the March 18, 2008, letter; and it had a redline version as well as a clean version both for the SMA as well as the Change of Zone. So, and as Mr. Lim pointed out earlier, all of the conditions that we were discussing were in the Change of Zone, yeah? There are two sets of documents, in other words, that he proposed, or conditions that he proposed; one was more applicable to the SMA and one is more applicable to the Change of Zone Ordinance. Again, it was included in I think it was the 41 pages that came along with that RHO: Okay. There has been a motion and a second. WOODWARD: Yeah, I would have no problem with adding the 40 RHO: With the friendly amendment WOODWARD: The amendments toboth WATANABE: Right. RHO: Made by Commissioner Watanabe. WOODWARD: To both, yeah. WATANABE: For all the conditions RHO: For all the conditions WOODWARD: Absolutely. RHO: To be included. Discussion? Commissioner Siracusa. SIRACUSA: Yes. I want to say right now that I totally disagree with everything that Commissioner Woodward has said -and that doesn't mean I don't like you, Rell. WOODWARD: Okay. SIRACUSA: But I do totally disagree with you on this matter. For one thing, you have made statements about the applicant having bended over backwards, and made statements about the Department and the Director. I found on reading everything that quite to the contrary and in reverse Mr. Lim's tone was rather personal, contentious and insulting to the Director. He has used phrases such as, in his Exceptions, "scheduling and notice defects that have plagued these proceedings," "unprecedented and drastic treatment," "targeted Applicant," "unfair and illegal," and here in our presence today used a phrase "individualized attack on one property owner." It seems to me that we are playing little semantic games here. For one thing, we are talking about downzoning when actually what we are doing is reverting to original zoning. It's not like we are starting from something and just downzoning. We are reverting to the original zoning - if you pass this, or if you don't pass this, rather -because the applicant did not follow certain requirements. Every single permit or application we get has the statement, "Should any of these conditions not be met or substantially complied with in a timely fashion, the Director shall initiate procedures to revoke" the permit or the Change of Zone. When we ask an applicant who comes forward if they have read the conditions, if they agree to them, they say yes. Of course they say yes; they want to get the permit or the Change of Zone. But they always say yes, they will comply; so they are on record already as agreeing to that. And yet, I don't think it's manini that they didn't. There were too many things that they didn't do. And those things are important. Otherwise, we wouldn't have them in the rules; we wouldn't have them as a set of requirements. I don't think we can say, "These requirements are manini and it's okay if you don't comply, but those you have to comply." Where do we draw the line? If you are talking about fair, then we have to have the same standard for one condition or another condition. 41 We are talking about SMA permit revocations. Mr. Lim is contending that there was only one maybe 26 years ago or something. If that is true, it is still not relevant. And it's still not relative because they have been other revocations of permits even if they were not SMA permits. And it is allowed in the rules, and it is part of the conditions of every permit that that can happen. The time extension by definition, an extension is something you do when you already have the time; you apply for the extension before it is run out. Once the time has run out, I don't see how by definition you can apply for an extension because it doesn't exist anymore. You would have to start all over from scratch. So I think these are little semantic games that the applicant is playing in order to confuse the issue; and it's a little smoke and mirrors number. Basically, Ifeel I found that what the Director gave us inhis and the documents that he presented to us and the yellow page on additions to background and recommendation reports, I found those compelling arguments. I found his discussion of the map, guiding us through the topography and the burial sites and the ability to find a way to position even a smaller number of parcels onto that particular configuration, I found that compelling as well. I will not be supporting any motion to continue this. Finally, I have to say that I feel personally, philosophically that we must always weigh the benefits and the detriments to the public versus to the developer. And even if we only look at that one specific consideration, there is no doubt in my mind that I have to support the Director's initiative. Thank you. RHO: Commissioner Watanabe. WATANABE: Oh, no comment. RHO: Commissioner Domingo. DOMINGO: Thank you, Mr. Chairman. I think based on the philosophy of Ms. Siracusa, then I would think that if the developers weren't able to build, first of all, Mauna Kea Beach Hotel, Mauna Lani and Waikoloa, the Hilton, you know, where would the people be today when the j obs were not here? I mean, establishing a precedent more for the people than for the developer would put us in a position that would have been even worse. Now, if it wasn't for these developers in the past who had invested the monies and built these hotels here, you know, surely we wouldn't be where we are today. And you know, thanks to the developers for what they've done for us. And I think every development, every time extension is considered and a decision is made based on their merits and the benefit for the people. Now, looking at time extensions, again, we would look at it as an individual application, and we determine the facts, and we look at the development and its impact on the developer and on the area. Now, here today some of us may be in conflict with what I've said and what Rell Woodward has said with regards to the proposed action that we are contemplating. Now, I don't know how the votes fell in the issue of the Special Permit for this trucking company that was before us. And let's think about its history, and recall how many times he had to come before the Council (sic) and ask for consideration, and how many times he had not met the provisions and the requirements of the Special Permit. And what has this Commission done? We have in good 42 conscience been very considerate with this individual, and have afforded him the opportunity to sit with the Planning Department and discuss the issues and how he would go about in meeting those requirements. We still have him on the agenda; we have not revoked that Special Permit for one reason or another. And you know, I hope that as we vote as individuals on these issues, we are consistent with what we say and what we do. Thank you. RHO: ~ Ms. Bowman. BOWMAN: I just have a couple of comments. I am concerned with the, I guess, the holding capacity of the area and the environmental effects, the cumulative effects. And I differ with Mr. Woodward who said that just 25 more lots won't make a difference. I personally think it would. I guess that's all I have to say right now. RHO: I' d like to make a or bring up forme anyway, this technical issue. If you look at the agenda for 2a, it specifically says, "Continued hearing on an amendment to Condition C;" and my understanding is Condition C is time to secure final subdivision approval. And I'm not clear as to how we can add all the other conditions to this agenda, or you know, in terms of the motion. So if somebody can explain that to me. Mr. Torigoe. TORIGOE: Thank you, Mr. Chairman. You know, it's a valid point to consider. I think, though, normally your agenda is fairly specific in describing what business is coming before you. But often the Commission in the course of discussing the action that it's going to take on a specific agenda item, as part of making that decision on the specific agenda item, the Commission very commonly looks at other conditions and adjusts them as well, as part of the decision that is amended on the agenda. And so, as long as something that is directly related to the business that is agendized in terms of amending conditions, it seems to be something that should be okay and that the Commission commonly does. So I really don't see a problem with that at this point. RHO: So if the motion carries, would that already commit us to the SMA? TORIGOE: No, it does not. I mean, you are basically talking about the rezoning; but if there are other concerns that arise in context of the SMA, then you can address those in the SMA. RHO: Okay. Any other questions, concerns? Are we ready to vote? BOWMAN: Could you restate the motion, please? RHO: Okay. Can you help me with that? DARROW: Thank you, Mr. Chairman. The motion before us is to send a favorable recommendation for the Change of Zone Ordinance 97-102 with the applicant's proposed or adopting the applicant's proposed amended conditions that are listed within the applicant's March 18, 2008 submittal. Is that correct? WATANABE: That's correct. 43 DARROW: With that, I' 11 take the roll. RHO: Yes. DARROW: Thank you, Mr. Chairman. Commissioner Woodward? WOODWARD: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Bowman? BOWMAN: No. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Siracusa? SIRACUSA: No. DARROW: Commissioner Watanabe? WATANABE: Aye. DARROW: And Mr. Chairman? RHO: No. DARROW: The motion does not pass, four to three. RHO: So at this point we have, I think, two choices or two alternatives: one is to send a default negative recommendation to the Council SIRACUSA: Excuse me. That was my motion that couldn't get a second. WATANABE: No. Yours was not adefault yours was not a default recommendation. This is default because we have four to three - no five votes. SIRACUSA: Oh, right, right. WATANABE: We hadn't voted on yours; it didn't have a second. 44 r SIRACUSA: Right. RHO: Okay, can we come back to I haven't finished yet. That's one choice, or one thing that can happen. Another thing is another motion from a Commissioner that's seconded and a vote on whatever the motion maybe. Or the third alternative, third possibility is the applicant can ask for continuance. So what's the pleasure of the Commission? WATANABE: Mr. Chair. RHO: Yes, Commissioner Watanabe. WATANABE: We've attempted to iron this out over - I don't know, what is this, the forth or fifth meeting? And there is a significant amount of material. I think it's for the most part polarized at this point. As much as I generally would prefer to not punt and send up a solid decision, I don't think that we have the votes one way or the other to accomplish that. And so my suggestion would be that we forward this up with all the material and the minutes, etc. to the Council with the default negative. Rho: Mr. Lim, do you have a comment or recommendation or suggestion for the Commission? LIM: I think I as much as you want to be done with this, part of the duty that I have to my client is to preserve whatever chance he has to obtain a favorable vote. So I would like to request a continuance, but I want to leave you with something for your next meeting in Kona. But I want to leave you with something is that if some of the no votes are no, no matter how many lots, then I want the Commission to understand that we are willing to work with the Commission on a reasonable number of lots; if 25 is not the number, then I'd like you to tell me what the number is, so I can see what my client will agree to. That's something that Ithink you know, because that's kind of where I see this is going. I mean, there are obviously two more Commissioners that could come on; I could get two more yes or two more no votes. But I think that that's something that would help me anyway in the interim. Because this is a serious matter for him. They've got a significant amount of money at stake. And, well, I want to make the right decision for them. RHO: Okay. WATANABE: So then RHO: Commissioner Siracusa. SIRACUSA: If we allow the rezoning to revert to the Ag-5, however, that would allow 7 homes. So I don't see what the if you are willing to go for that, I don't see what the obj ection to the rezoning would be. Could you explain LIM: We are not willing to go to the seven. WATANABE: Mr. Chair. 45 RHO: Commissioner Watanabe. WATANABE: Okay. Given the comments of the applicant's representative, Imove to continue this to the next Kona meeting. RHO: Do we have a second? DOMINGO: Second. RHO: It's moved and seconded. Discussion? Well, I SIRACUSA: Question of Mr. Torigoe. RHO: Sure. SIRACUSA: If we continue this, do we also have to continue deliberations on the SMA permit, both the applicant initiated and the Planning Director initiated versions? TOR.IGOE: Well, just in terms of the logic of your discussions it would seem that if you are going to ruminate further on the rezoning, then, as we've noted, the SMA permit has to be consistent with the zoning; so it kind of makes sense for you to continue both of those. But technically speaking, if for whatever reason you want to go ahead and vote on the SMA permit, if there were five votes to approve the SMA permit extension, for instance, then you could make it contingent on there being a consistent zoning amendment. So I mean, that is a technical possibility. WATANABE: I was just making that motion I intended to follow up .with, after the vote, with another motion to continue both SMAs. If the Commission would like to consider all of them at once this time, as opposed to just the zoning as was agreed to earlier, then I'll amend it to include Agenda Items 1 and 2 along with 2a; so we would continue all three items to the next Kona meeting LIM: To the extent RHO: Okay WATANABE: I'm willing to amend it that way. RHO: Any other discussion? Okay, Ihave a I want to actually answer your question, Mr. Lim, at least for me personally. I had a difficulty with 2a with the additional components included in it; because in my view once I voted, or if I voted for it, then logically I would then vote for the SMA. I can't distinguish that. In my mind we were going to vote, or we should have voted on 2a to basically extend the time on the original ordinance. And I guess it's the same thing for 2 - although we probably wouldn't get there. But I would not vote for 1 at this time even though I acknowledge and recognize and appreciate the developer's or the applicant's concession from 50 to 25. 46 TORIGOE: What did you say? You wouldn't vote for 1 ? LIM: I'm not I think RHO: I can't vote for 1 at this point even though TORIGOE: One being RHO: I'm I recognize the developer's wanting to reduce the size from 50 to 25, etc. -all that kind of stuff that you've argued. And the reason for that is I want to see more than, I don't know, the map that we are shown or the documents that we have. I think that the Commission truly needs afull-blown presentation that the Commission 10 years ago either didn't have access to it was a different time, different feeling, different mindset, etc. etc. With that said, though, I really have a difficulty with trying to approve any development on the shoreline at this time with 10 years more information, knowledge, etc. etc. etc., regardless of ciguatera and pollution -although that's part of it, too. So I don't know whether that helps you, but I really did want to at least from my side, for me personally, address your specific question to the Commission. I think the Commission does appreciate the developer's willingness to work on this. With that said DOMINGO: Mr. Chairman. RHO: We have a motion on the floor SIRACUSA: Mr. Chairman, Ijust RHO: Commissioner DOMINGO: Mr. Chairman. RHO: Siracusa. SIRACUSA: Want to say that for me it would have been a lot easier, if we could have had a site visit. And I would urge the Commissioners to think about possibly especially since the Director brought up all those questions about the terrain and everything, I would like if we are going to continue everything, I would like us Commissioners to think about maybe scheduling a site visit prior to coming into the meeting, so that we could all be on the same page and see exactly what the situation on the ground is. RHO: Okay. We have a motion on the floor. DOMINGO: Mr. Chairman. RHO: Commissioner Domingo. 47 DOMINGO: Yes. Your emphasizing the need to see a larger map depicting the uses along the coast is well taken. But I think that is one of the bones of contention by the developer and also my argument to it; because nothing has changed in the General Plan, which shows a change in the uses. And I think what we've been negligent about - I mean the County Council and the administration - is the fact that they have not come with any changes and amendments to the General Plan or with the policies with regards to viewplane and preservation of historical sites and all the those things have not been done; it was not carried over. I mean, we've often heard the sentiments of the people from North Kohala with regards to development along that area; but nothing has been attempted to change that or to emphasize that - so developers can look at that and thereby have a clearer understanding on whether or not any development plan should be submitted. That is lacking. So having the maps come up before us, I think, I feel, would not make any difference at all because there has been no change. RHO: Just to clarify, though, I wasn't asking for maps of the entire area; I wanted diagrams and more specific plans about what would actually be developed in that parcel, like we've had before on all these other issues that we have worked on. We have had archaeological plans before us, or at least reports that were available, and we've had diagrams. For instance D-Bar Ranch on Alii Drive - we had maps, we had diagrams, we knew how many parking spaces, where they would generally be; they were not final plans, but they were more complete than all this paper that we've had over the last six months. That's all I'm saying. DOMINGO: Thank you. And I understand what you are saying, Mr. Chairman. But if I may, again, what we are asking the developer is to invest more money into something that has a pre-gone conclusion that it will be denied by this Commission. If I was a developer, I wouldn't do that. And that's why we depend on plan approval process. So when they've given approval for the development, then the developer would then invest monies in hiring engineers and other experts in devising a planned development for them. And then that would be reviewed by the Planning Department, and there are at that time more definitive decisions made with regards to what they can do and what they shouldn't be doing. And they would all address and come up with mitigating steps for the kind of concern. WATANABE: Mr. Chair. RHO: Commissioner Watanabe. WATANABE: I understand your concern about the SMA permit. And I also recognized it you are an intelligent person and you realize that it's not necessarily the final plan. I think where this became very difficult, though, for the developer to present you with the final plan is generally what happens is the negotiations, whether it would be a concession from 50 to 25 or whatever it may be, would occur before all of this happens here, in other words, between the Planning Director, the Planning Department and the developer; and then all those requirements are set, yeah, agreement is arrived, they go out and invest all of this, and recommendation generally comes up to us, oh, we recommend a favorable recommendation based on all of this. What's happening here is the developer is offering the concession because all negotiations other than this have failed. But he doesn't know what's going to be accepted; he doesn't know if it's going to be 20, 25,15 or, you know, 30 or whatever. And so that's why it's so difficult. And where I think I have a little bit of concern, if that's the hang-up, is I don't think he can develop 48 the amount of detail that you want by the next Kona meeting. You know, if that's all that's going to sway you -and I'm not saying you don't have a right to that - but if that's the only thing that would sway you, then we'd be better off continuing it for a longer period, given that the developer says he would prefer to continue. I just don't see a way that can be done within that amount of time. RHO: Can I just put a final period to this little discussion on my comment? I'm not sure how -and this is just a personal thing -how any of us would be able to act on this SMA, which is basically for me a brand new SMA, given the information we currently have. So that's myhang-up. And Iwill and I have shared it with Mr. Lim. That doesn't mean that my vote will switch. All I'm saying is I can't vote on this SMA; and if I'm forced to vote on this SMA currently today, it'll be a negative because the information is not there. That's my view. Why the information is not there is irrelevant to me. I don't care that the developer has to spend all that money. He should have developed that property within the 10 years. Yes, he bought it after 5 years. But that's irrelevant to me, personally. I just can't see myself voting for this SMA based on the information that's provided today. That's it. That's the period. So we have a motion on the floor. Can we take up the motion and have avote on it - if we can remember what the motion is -and then not adjourn but close the meeting for now for lunch and return after lunch at about 1:30? So WATANABE: For the clarification? RHO: Mr. Watanabe, will you clarify that motion? WATANABE: Yeah, for the clarification part? RHO: Thank you. WATANABE: Move to continue Agenda Items 1, 2a and 2 to the next Kona meeting. I forgot who seconded. DOMINGO: I would second it. RHO: Any further discussion on the motion or the revised, slightly amended motion? TOR.IGOE: So basically, if there is no objection to the amended motion, then that can betaken up. RHO: Okay, so there is no objection to this amended motion made by Commissioner Watanabe and seconded by Commissioner Domingo. If no objections, can you take the roll? DARROW: Sure. If I could just ask for a slight change to the motion; if we could make it to the next West Hawaii meeting. It might not be specifically in Kona. 49 WATANABE: Oh, yeah, that would be fine. DARROW: And so the motion before us is to continue Item 1, Item 2 and Item 2a to the next West Hawaii meeting. Is that correct? Okay. With that, I' 11 take the roll. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Bowman? BOWMAN: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: And Mr. Chairman? RHO: Aye. DARROW: The motion passes, seven to zero. RHO: Okay. The discussion ended at 12:29 p.m. Respectfully submitted, /s/ Noriko Sauer Noriko Sauer, West Hawaii Secretary 50 {r PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JANUARY 11, 2008 A regularly advertised hearing on the application of KOHALA LLC (REZ 866) was called to order at 6:06 p.m. at the King Kamehameha's Kona Beach Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii, with Chairman Rodney Watanabe presiding. PRESENT: William Graham ABSENT & EXCUSED: C. Kimo Alameda Takashi Domingo Andrew Iwashita Shelly Ogata Rene' Siracusa Alvin Rho Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Christopher Yuen, Planning Director Steven Lim, Attorney for Kohala LLC And no one from the public in attendance. APPLICANT: KOHALA LLC (REZ 866) Continued hearing on an amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5 a) to aSingle-Family Residential 15,000-square foot (RS-15) district. The property involved is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua lst, North Kohala, Hawaii, TMK: 5-9-1:8. WATANABE: Now we have Agenda Item 5 to deal with. I'd like to take five minutes. But, you know, before we take that five minutes I had indicated earlier that I do have some suggestions. It's based on I believe a neighboring SMA Permit that we did issue. I recall that particular incident. And if you don't mind this, I'm not trying to railroad anything, I would like to pass that out so that you all can review that. It's just a draft. It's one person's initial proposal. I thought I' d work on something like that so that, you know, we could proceed a little faster possibly; and so if you don't mind during the recess I' 11 hand that out or give a copy to staff, etc. Okay, thank you. RECESSED The Chair called a short recess at 6:06 p.m. RECONVENED The meeting reconvened at 6:17 p.m. 1 1 l WATANABE: Okay, would the Planning Commission now return to order. I realize we had only a short time to look at this. Again, you know, I want to reiterate that I'm not trying to railroad anything. I'm just trying to get away from the procedures part arguments and go onto something towards more like mediation. And I'm also trying to establish for the record where the Commission or the majority of the Commission is coming from and whether the applicant's representative is agreeable to some of the revisions to the conditions. With that, maybe we can begin with Agenda Item No. 5, which is applicant's request for extension of time, Kohala LLC, REZ 866. Jeff, do you want to summarize? I don't know if we need to but DA.RROW: We did them earlier; it was WATANABE: Oh, you did on this. Okay, okay. Okay, Mr. Lim, as we stated earlier, you know, it's agreed that the applicant has an opportunity to extend the time. So it's up to you whether you would like to extend the time so that we can discuss this in conjunction with the March 20th meeting or But all the same for reasons I stated earlier, I would hope that the record would reflect some of the feelings here, and maybe some of the other Commissioners might also chime in. This is just one person's view. You care to comment on how we should proceed with this? LIM: I've had a chance to review the submittal by Commissioner Watanabe just now, and I understand pretty much where he's going. There are some things inhere that I haven't discussed with my clients so I really don't have the ability to agree to Some of them I have so I can agree to some of those; but some I haven't because, you know, I haven't seen this before today. The practical problem for us is I would like to accommodate the Commission but I also want to have our request for a time extension go up to the County Council at the same time that the Director's does, and so, you know, again, that's why I'm asking you. Maybe it doesn't have to go up in March with the other SMA hearings, but I would like to have the ability to get some authority from my client on these points that you've raised and then come back at maybe the next meeting with the Director's consent to then take action on Item No. 5 and send 4 and 5 up. WATANABE: Mr. Director, timing wise, cause you've been pretty firm on the drop date as January 11th. And timing wise as far as this, Item No. 4 going up to the Council, when does that go up to the Council? YUEN: It goes up, I mean we don't stall these things after WATANABE: Yeah, yeah. YUEN: You know, the actions that are taken by the Commission, they get typed up and they get, you know, whatever timeframe that takes and they get sent to Council, and then it's really up to Council to agendize the items. 2 LIM: I guess my request would be to ask the Director to stipulate to extend till the next Kona meeting for us to come back on Item Nos. 4 and 5; and we'll go ahead and, in the meantime, be able to review this with my clients so I can give you my position on it. WATANABE: I'm inclined to think the Director would not agree to that, but I'll ask him to respond. YtJEN: Mr. Lim has filed a legal memo saying that the Director has no power to extend the 60-day timefraxne, so I'm not sure what his argument is right now. WATANABE: Okay. YUEN: And, you know, I'm not trying to be difficult about this. There is also the, you know, the Commission can also review this and make a decision whether it likes it or not and take a vote on it today; and the Commission does not have to act with the consent of Mr. Lim and his client on something like this. At any rate, it's, I don't know what I can really, I don't know what I can do. It's up to the Commission and Mr. Lim as to what they want to do on this item. WOODWARD: We might get apoint oforder WATANABE: Commissioner Woodward. WOODWARD: Mr. Chairman. And we've already decided Issue No. 4. WATANABE: We have and that is going to go up WOODWARD: So that is going to Council. WATANABE: Yeah, yeah. WOODWARD: So now the question is what do we want to do with Agenda Item No. 5. WATANABE: Exactly, exactly, and WOODWARD: And my guess is that both are probably going to go with a negative recommendation. And then some revision, hopefully some mediation will occur in the meantime. But my guess is that both of these are probably going to go to Council with a negative recommendation. WATANABE: Okay. Yes, Mr. Graham. GRAHAM: What Mr. Woodward says sounds kind of correct to me, too. It seems like the other issue is that, Commissioner Watanabe you have put a lot of work into this recommendation; and it seems to me given that some of the Council, some of the Commission here feels, you know, towards keeping it as open as possible and others towards allowing the 3 1 develo er to develop what he had originally that you found a, I would say, a very fair median p ound to best sort of represent the- Council (sic) as a whole. And I commend you on what ~ ~ ~ ' wa iven that you ve come up with content-wise on that. So I m dust wondering if there s any y, g we've followed what Commissioner Woodward suggested we're sort of likely to do, that this document which is not a endued in any way could sort of just kind of go along to the Council in g some fashion just for their consideration. I don't know WATANABE: Well, I'm wondering if we could discuss this to some degree because I a ee I don't think we have the votes either way on this issue either; and maybe then the record will reflect where we were headed. And my only question to Mr. Lim was whether he would choose to continue this to the March 20th, or he'd want to work on it right now. He's kind of in a uanda in that he hasn't had the opportunity to discuss it with this client. On the other hand I q rY didn't feel I had the liberty to share it with anyone else until we discussed Agenda Item 4 first. I mean it's not u to me. You know, it's really a Commission kind of issue. So with that, you p know, I assume, Mr. Lim, that you still want to send this up to the Council at the same time as the ne ative recommendation for Agenda Item 4. And I suppose if we discussed this to some g degree it will then in effect be entered into the record. WOODWARD: If I might suggest, Mr. Chairman, maybe we can ask Mr. Torigoe what the best wa to handle this would be. Because really this is either a revision or an unagendized item, Y de endin on how ou look at it; and I'd like to get his input as to what the best way to proceed p g Y would be, just take a vote on the issue that's before us or rehash this whole thing. TORIGOE: Thank you, Mr. Chairman. Well, there's a couple of things you can do. Takin one ste back, one thing you could do is you've attempted to take a vote on Item No. 4 g p which did not pass and the vote today seemed to indicate that you wouldn't be able to get a vote with five either way. And so it looks like that's going up with a default negative along with the entire record and all of the good discussion that you had on the record. You could let that go up but also with a notation that there is a complementary Item No. 5 that asks for an amendment to extend, an amendment to this Condition C to obtain, secure final subdivision approval, just to let the Council know that, you know, there's something else coming up that is the flip side of 4, so that the would not prejudge the matter I think as probably Mr. Lim and his client are concerned y about. That's one way to handle it. And then you can continue this Item No. 5 to allow Mr. Lim and his client to discuss it and you all to take a better look at it, to look at the recommendation that the Chairman has created. WATANABE: I apologize. I should have put "Draft" on there. I think I made it clear that was my intent. Yeah? TORIGOE: Okay. So WATANABE: So then what you're saying then is we could put, place a caveat that A enda Item 5 has been continued, say to the February meeting, at which point Mr. Lim would g have had a chance to consult with his client and also the other Commissioners would have had a chance to digest the material. And then we could agendize this for them and then send it up, subsequent to sending up Agenda Item 4, cause Agenda Item 4 is going up, irrespective. 4 TORIGOE: Right. And then you could, as I said, you might also add to the transmittal to No. 4 to the Council a notation that you are considering a time extension as requested and so they should be looking out for that to be coming up. WATANABE: Yeah. We do not have, however, the authority. Only Mr. Lim has the authority, you know, as the applicant to extend the time, yeah. So, youknow - TORIGOE: Right. WATANABE: You have to be in agreement. If you're not in agreement with what was just discussed then we would act upon this. If there's a question as to whether it's an unagendized item, we can just discuss the Ramsayered portions and then send it up, because we do regularly discuss revisions to conditions on previously agendized items. And that way, you know, some of the discussion would be forwarded. But like I had said and like it is pretty obvious none of it is going to pass tonight anyway, I don't think so. TORIGOE: You know, actually I look at this recommendation and it's, well, your draft recommendation, and I see it as really kind of a form of discussion on the agendized item. And this being an advisory matter too, I wouldn't have a problem if you decided to enter this into the record as WATANABE: Draft? . TORIGOE: A draft for discussion. And then if you decided, if you wanted even to take a vote on it you know, and if you can't come to a consensus or five votes one way or another then it goes, you could send that up as well this way. But there are some options there. LIM: In terms of the applicant's position is I do need client authority cause there's some issues inhere, especially the 100-foot setback from the ocean and a 150-foot setback proposed from the highway. You know, I don't know how big or how wide the property is so I can't make an assessment at this time. WATANABE: Yeah. LIM: But for purposes of just the procedural aspect, I think if the Commission, you know, we're not consenting to it, but if the Commission decides to send the recommendation on Items 4.a. and 4.b. of the agenda today to the County Council, we would ask that you do that with a special note that you are taking time to review Agenda Item 5 with the applicant and coming back at the next Kona meeting to address that. WATANABE: Okay, that will require you authorizing an extension to agendize to the next Kona meeting. LIM: And I think that I'm saying that I will authorize the continuance of Item 5 to the next Kona meeting, with the proviso that we would like the Commission, if Items 4.a. and 5 4.b. go up to the County Council that you add a caveat that you are, that something else is coming so, you know, you would like them to review those together. WATANABE: Okay. With that, Mr. Torigoe, earlier you indicated that this could be, if labeled as a draft, be presented as a discussion item; and I think the minutes would clearly indicate that we haven't approved it, it was continued. And I'm wondering if that can occur. Do you feel comfortable with that occurring? Cause they will know that we haven't approved, we haven't acted on it, obviously, cause we've continued. Or if we should just, as you suggested earlier, place, you know, a simple caveat that we are currently, we have continued Item 5 and we're working on revised conditions to Item 5. For me I don't particularly care how we handle it as long a,s, you know, we're abiding by the rules. Mr. Director, you have some comments? YUEN: You know, we can certainly put a note, a sentence or two in the letter that we forward the recommendation on 4.a. and 4.b., we can include a statement that the applicant has a request for a time extension that is still pending at the Planning Commission and it would be expected to come to the Council shortly. LIM: We would ask that the Commission indicate your request that the matters be heard together at the County Council. I mean what I'm trying to accomplish isthe WATANABE: Well, in a round-about way I know what you're trying to accomplish. On the other hand, you know, I'm trying to be fair too. Okay? So, you know, I think if the record is clear that there's further discussion, they will, let's leave it up to them to come to that conclusion. LIM: Hopefully, yeah, what my WATANABE: Otherwise, you know, then I have to show respect for the Director also, ri t. LIM: What I'd like to do is submit comments to this proposal; and that's why I need the extra time. WATANABE: No, that's fine. For your information, Mr. Lim, you know, I would refer to the, there was a flood study or something about the shoreline and I believe the elevations there up to 140 feet from the shoreline was about 25 feet; and so if you refer to your own exhibits in there, it's generally not recommended that you build that close to the shoreline anyway. So it may not really represent a taking. I don't think the 20-foot setback that we're talking about is consistent with the Belt Collins setback which is, I believe, adjoining this parcel. And, you know, most of the rest of the conditions you had previously agreed to, with the exception of the height limitations on the house. LIM: Can I ask some clarifying questions so that when I WATANABE: Sure. 6 LIM: Take it to the client Okay, I'll go through it really quickly. I'm sorry it's very late. I think you have a small thing. It's a typographically error in D, the third to the last line should state "approved covenant(s) shall be recited in an instrument...." Condition M, when you say "Anew Data Recovery Plan and Preservation Plan consistent with the proposed De=pment Plan shall be prepared," I'm not sure that a new Data Recovery and Preservation Plan needs to be prepared, because I believe, and I'm just doing this from memory, but I believe that the existing plan covered the entire acreage; and I think it was only a site preservation plan at the end of the day that was approved for asingle-family dwelling. So I've got to go check that. So I'd like to make it clear WATANABE: Well, again, this was only intended as a draft so LIM: That isnot WATANABE: And if we're not going to deliberate on this then LIM: Right. I think it would be just WATANABE: I would, you know, welcome your corrections at the, I assume we're going to continue this to the January, I mean, February meeting and, you know, by then you would have, how should I put it, authority from your client, yeah, to LIlVI: Yeah, perhaps, you know, my client is sometimes hard to reach; and since I'm going to come back for the March hearing on March 20th I believe it was on the SMA, maybe I'll go ahead and just continue to that date. And if the Council takes it up ahead of time, then they take it up ahead of time on Items 4 and 5, 4.a. and 4.b., excuse me. WATANABE: So you would prefer then to continue to the date we have set, agendized for the SMA on March 20th? LIM: Yes. In part I'm trying to think about the cost of WATANABE: The logistics. LIM: Coming, you know, twice, yeah. WATANABE: Yeah, okay. LIM: Condition 0 regarding the public access is WATANABE: Please, give me a second please, Mr. Lim. LIM: Yeah. • Mr. Ha ashi how is the schedule lookin on the March 20th? Do we have WATANABE. y g room to extend this to the March 20th 7 . a~~ _ HAYASHI: Yes. WATANABE: Oh, okay. Thank you. So then that's, assuming the Commission is agreeable that's open then. LIM: The Condition 0 is that from a particular permit? WATANABE: 0, this was from the SMA. And actually, but I couldn't, normally we would not include something like this, I don't believe, in a zoning type of ordinance. But the SMA was not agendized for this meeting and so to make sure that it was in there, basically it's the same thing as was contained in the SMA condition, with the exception that the lateral public access was increased from 10 feet to 20 feet which is consistent with the Belt Collins. And I believe in your response that you said you would comply with this, aside from the change from 10 feet to 20 feet, as well as the change from the 40 feet to 100 feet on the setback. LIM: Okay, when you speak about the 20-foot wide lateral public access walkway, is that an improved walkway like a roadway or something? WATANABE: It's the exact wording that was in the existing SMA; and I'm not suggesting that you put any sidewalks or anything there, you know. It's a trail, right, in my min .But LIM: I would think, I'll probably come back with amendments to Condition P to increase the fair share contribution numbers to the current numbers. WATANABE: Yeah, I wasn't aware of the current numbers so I just took, Condition P is exactly the same as it was in the original. And if you are willing to increase it to the current numbers that's, you know, obviously better for the community. LIM: That's what the County Council will do in any event. Condition Q, this is something that we'd like to retain. You crossed it out. This is the ability of the developer to bond the improvements rather than have to build them out; and this is a fairly standard condition. WATANABE: I think I left that in one of the conditions for the flood mitigation, I think it was. But I guess what I'm saying is I was looking at this as, because I believe you had agreed already, if you review your notes, that you were going to build a number of the, oh, wait, Condition Q? LIM: Yes, yes. It's just the bonding condition which is kind of standard. WATANABE: Yeah, but, okay. Let's look at the conditions then. That was to E, F, H, J and 0, yeah? LIM: Yes. 8 _ _w~~..~ : _ . k WATANABE: And E isrelated to - "In conjunction with Final ...the Department of Water Supply." -the fire hydrants and all that. You're not going to bond that, right? LIM: I think these are, I think, you know, I'll suggest some more language but there's a standard condition the Planning Department uses that says that instead of building all these improvements WATANABE: Right, right. LIM: For final subdivision approval you can file a bond. And so I'll change that language. WATANABE: Okay. LIM: I just wanted to see why you did that. Okay. And I see the height limit and the setback requirements. WATANABE: The height limit was an exact replica of what we had approved in the SMA Permit for Belt Collins. LIM: The Belt Collins' one you're talking about is the one for Kohala Makai? WATANABE: Belt Collins is, I had thought Belt Collins was an acre or one-acre Ag, but in actuality the Director was being consistent when he said 5-acre Ag. LIM: That was the next door property? WATANABE: I'm not exactly sure if it's next, immediately adjoining. However, I do know that it was in the immediate vicinity and I believe that's the same one the Director was referring to with regard to an SMA Permit. That was not a change of zone. It was just simply an SMA Permit. LIM: Okay, I understand what you're getting at now. So I can take that to the client. WATANABE: I'm trying to create as much consistency and send a message that we are trying to be consistent. But in this event you already had vested rights, and so we're trying to make a compromise. I'm just trying to act as a mediator. But that does not suggest that this is the final language. I'm just trying tojump-start something so maybe we can get to some amicable solution. RHO: Mr. Chairman? WATANABE: Yes. RHO: Today we had a, I guess a definite timeline for 4.a. and b. 9 WATANABE: We already decided on 4.a. and b; and that is going to go up. RHO: But that timeline, was today the absolute deadline or could the Director and the a licant have a eed to extending it further to, let's say, March 20th pp WATANABE: That was debated at the previous meetings RHO: Right, and they agreed WATANABE: There's some RHO: Not agreed but WATANABE: Well they agreed to extend RHO: One or both parties would not extend past today. WATANABE: The maximum to January 1 lth, which is RHO: Which istoday WATANABE: This meeting today. There's some question as to whether even that is allowable. RHO: Right. WATANABE: The Director took the liberty and said, look, I'll extend as far as January 11th RHO: Okay, so how about Item No. 5? WATANABE: Item No. 5 is anapplicant-initiated request for a time extension; and the rules are clear on that one, the applicant has the ability to request an extension. RHO: So that was extended from a previous meeting's WATANABE: Right, right. It was continued; and at some point I think it was even the July or maybe even the August meeting where even the Commission requested that it be continued. RHO: There's no, I guess I'm looking for an absolute deadline and I won't find one, right? WATANABE: On this, as long as the Commission is willing to agree with the applicant 10 RHO: Okay, so the Commission actually WATANABE: No. RHO: In the end, by the end of tonight we'll actually have to vote on WATANABE: No, we would RHO: Moving this to the next meeting? WATANABE: No, to the March 20tH RHO: To the March 20tH WATANABE: The applicant's representative is requesting a continuance to the March 20th. He's vacating the desire to have both RHO: Cause I'm going to tell you right now that I'm not inclined to do that. I only have one vote, but I'm not inclined to postpone this to March 20th. Because in my view my previous vote will be inconsistent if I do that. I mean, I guess I kind of agree that all of this thing should have been taken up all at one time, because it's like we're going backwards to the back door now and doing something to And I understand what the vote was in our previous motion and vote. But it's like we're going back through the back door to bring that subject all the way backup again with modification. And if that was the case then we should have done that from the very beginning and not take a vote then, which again, you know, I understand that vote. But now to bring it up again, it just doesn't seem WATANABE: Okay. And in all fairness to you then maybe we should entertain whether the Commission is agreeable to extending it to the March 20th deadline as indicated by the applicant. And so if we could have a motion to that effect then we can determine whether the Commission as a whole, whether we have the votes to continue it to the March 20th meeting; and if we don't, then we will deliberate on this now and we more than likely will wind up with no consensus vote so it will go up with a negative recommendation on both. And that's, like I said, either way is fine with me. I was just trying to, youknow So Mr. Domingo, I'll entertain a motion. DOMINGO: Mr. Chairman, I don't have a motion but I would like to make a few comments if I may. WATANABE: Sure. DOMINGO: Mr. Torigoe, is a proposed amendment to the zoning bill appropriate when you're considering a time extension? TORIGOE: Okay, I think you're asking basically, the agenda item is a time extension and you're asking if we can do these other changes including the limitation on the number of 11 DOMINGO: Yes. You know, when you cut the number of stated residential lots practically into half, that certainly has an impact on a project. And when you mentioned, you know, with regards to the possibility of having a channelization of the highway and other conditions you're changing the ordinance. You know, you're changing the ordinance. I'm totally against this. You know, this makes a proj ect unfeasible. TORIGOE: Well, Commissioner Domingo, it's just a draft for discussion. DOMINGO: Well, I'm just making myfeelingsknown TORIGOE: Right. DOMINGO: That should this come up as written then I'll surely fight against this. I mean if we're going to consider an extension of time, let's consider extension of time. And I don't think it would be proper for us to go into the rezoning bill and change what was in there already to begin with and what was approved by the ordinance. TORIGOE: Well, I think all that's being attempted is to stimulate some discussion that may lead to an amicable solution; and I think a number of you, including yourself, Commissioner Domingo, have noted the preferability of having somekind of awin-win; and I think this is trying to go in that direction. And that's all it is at this point. WATANABE: To comment, Mr. Domingo, it's kind of like what I expected to occur if we were compro you know, when we asked them to find some compromise with DOMINGO: You know, in deference to you, Mr. Chairman, with the ordinance going up with the negative recommendation there is no indication as to whether the Council will go along with the recommendation to deny or to approve, to override the Commission's denial and approve the rezoning, you know. when you consider the mood and the, the mood of the Council, you know, the applicant will have a hard time even to have them consider rezoning, go through the rezoning. And when you have people who go to the Commission and say that we have here an issue which has been brought up many years ago, over ten years ago, with regards to the preservation of the ocean front and with no further development along the shoreline, tell me how those Council people will react to it? You know, I cannot accept this as written. If we're going to consider an extension, let's consider the extension and leave the ordinance as is. That's it. And if we, and then when we consider the SMA Permit, you know, then we can deal with the finer things of the project. The zoning is broad right now as written. The zoning is broad. But when you come down to the SMA Permit, it bangs into a more finer detail and it's confined within a smaller area, a developable area, in which we can consider all impacts. But that's written, you know. WATANABE: Okay. And that's fine. You have a right to an opinion. As I stated earlier we are not able to discuss the SMA requirements; and I did not think that we could gain any 12 consensus if we didn't bring in any finer and so I proposed that. Again, it was proposed as a draft. If you're against it, that's fine, you know. Commissioner Graham. GRAHAM: Yeah, I think I understand Commissioner Domingo's point, and I also generally agree with Commissioner Rho that I feel like we ought to take action on 5 also today. And my intent when I spoke before was just that, you know, this document could be forwarded up to the County Council in some way for them, when they go forward. And I think Commissioner Domingo is right, the particulars in this document do feel more appropriate to an SMA than to a rezoning. However, I think what you were feeling was that once the rezoning gets acted upon by the Council then it may preclude some things, and so you kind of wanted to have this in play for them to think about at rezoning time. So, anyway, that's all my thoughts. WOODWARD: Mr. Chairman? WATANABE: Commissioner Woodward. WOODWARD: I think it may be is cleaner from a legal standpoint to have a, I want to ask Mr. Torigoe if I'm right in that regard, to go ahead and vote on this issue and have this in the works; and then if Mr. Kim wants to resubmit a proposal, amended proposal TORIGOE: Mr. Lim. WOODWARD: .Lim, yeah. Isn't that what I said? TORIGOE: You said Kim. WOODWARD: Lim, oh, okay, sorry -wants to submit a revised proposal then that can be addressed? Yes, no, maybe? TORIGOE: I'm sorry, I got a little lost there. WOODWARD: Okay. Well, I was just saying, and it sounds to me like people want to vote on this issue. And I think what's going to happen is there's going to be a negative recommendation for both 4 and 5 that goes to Council, which leads everybody sort of in limbo; and there's still time to discuss this. And if the, you know, the applicant wants to resubmit an application TORIGOE: Well, I suppose, off the top of my head I can't recall what the timeframes would be for resubmittal. I suppose that the applicant or anyone could at the Council level, even if both of these went up with default negative recommendations, Isuppose that a draft such as the Chairperson has created could be brought up for discussion with the Council. LIM: For purposes of the record, the applicant is willing to waive the 9o-day period in the Planning Commission Rules that the action by the Commission should occur within, and like I said we would be willing to waive to the March 20th hearing. My intent and my goal would be to come up with something like the recommendation that was passed out today 13 by Commissioner Watanabe with conditions of approval addressing density, setbacks, and those types of issues. Because I would rather have on the record a determination by the Planning at least try to get a determination by the Planning Department that these are the conditions under which you feel comfortable having the proj ect go forward and present that to the County Council, rather than to have essentially nothing that was forwarded up by you as a recommendation. So that was going to be my intent, to try to work with my client and see if we can come up with conditions that are acceptable to us that you would adopt, hopefully. WATANABE: Yeah. I understand that. But it seems that we're at an impasse and that a number of the Commissioners want to decide on this today. And, you know, judging from the prior vote on Agenda Item No. 4, this is not going to fly anyway. So at this point I'm inclined to entertain a motion to entertain Agenda Item 5 today; and, you know, if the Commissioners so desire, then let's do it. Yes, Mr. Graham. GRAHAM: All right, I am willing to make a motion. So I would make a motion then on Agenda Item 5, Applicant Kohala LLC, that's Rezoning 866 on our agenda, I move that the Planning Commission send an unfavorable recommendation to the County Council on this application. RHO: Second. WATANABE: Okay, it has been moved and seconded. Any discussion on this? Mr. Darrow. DARROW: Thank you, Mr. Chairman. The motion before us is to send an unfavorable recommendation to the Hawaii County Council. With that I'll take the roll. WATANABE: So that would be an unfavorable recommendation on the extension of time, right? DARROW: Correct. WATANABE: I'm trying to make this clear so that people don't get confused and think they're voting on this. DARROW: Yeah, on Agenda Item No. 5. WATANABE: We're saying an unfavorable recommendation on the extension of time. GRAHAM: That's correct. WATANABE: All right, okay. DARROW: With that I' 11 take the roll. Commissioner Graham. GRAHAM: Aye. 14 DARROW: Commissioner Rho? RHO: Aye. DARROW: Commissioner Domingo? DOMINGO: No. DARROW: Commissioner Ogata? OGATA: No. DARROW: Commissioner Woodward? WOODWARD: No. DARROW: And Mr. Chairman? WATANABE: No. DARROW: The motion does not pass four to two. TORIGOE: Mr. Chairman? WATANABE: Mr. Torigoe. TORIGOE: Yeah. This is a little different from the previous one of the Planning Director. Since the applicant has indicated a willingness to extend the time, you probably should take a motion to continue in line with the applicant's indications. And it sounds like that will get voted down; and that' 11 close it up. WATANABE: Well, actually, that was the motion I was looking for but instead they jumped ahead to the motion, yeah, to decide. And I was looking for a motion that, it's kind of like moot now because the motion you're proposing is that we will decide on this. TORIGOE: No, I'm just WATANABE: Yeah, and if we want to do it for the record for formality that's fine. But I WOODWARD: Point of order. WATANABE: Mr. Woodward. 15 WOODWARD: We really didn't decide the issue. There was not a majority vote. Now the Director's recommendation has to go because there's a time limit on it. WATANABE: Right. WOODWARD: This one we didn't decide. So it makes sense, in fact I think we're almost obligated to continue it till we get a decision. TORIGOE: Well, not necessarily. WATANABE: No, I believe there's a, what, 90-day and TORIGOE: Yeah, but the thing is that, as Commissioner Woodward was saying, that with the Planning Director's previous one it was clear that if you didn't get five votes today then that would be the end of it. It would go up with a default negative recommendation. But this one you have the applicant saying, you know, I'm willing to extend it, in fact I want to extend it to the next meeting. Soto close that out, I think you should take a motion to extend it or not; or if nobody makes a motion to extend, then that's it. Then you're done here. YUEN: Well, can I jump in for just a minute here. I think the applicant has the right to extend the time on their, on the bill that they initiate when the Commission has not come to a definitive vote. WATANABE: Right, well YUEN: In other words even if the Commission had a vote on whether to defer action and did not reach five to defer action, if the applicant does not want the matter to go to the Council with a default negative recommendation but would rather have it stay at the Commission to try to get five favorable votes, then the applicant should be able to do that. TORIGOE: So you're saying that it should just stay on the agenda as long as the applicant wants it to stay on? YUEN: It's the applicant's request. You see, this is their request for a time extension. And if the applicant is content And I think that, you know, you get into a point of reasonableness. And typically the applicants have wanted to have their matter at some point go up to the County Council when it's clear that they're not going to get five votes at the Planning Commission or if they're just tired of having it voted on the Planning Commission. But otherwise you're forcing it to go up to the Council with a negative recommendation. And if the applicant does not want to do that, then it seems to me that the applicant should be able to keep the matter at the Planning Commission. TORIGOE: Okay, I think there's an ambiguity in the rule because the way it reads it says unless a longer period is agreed to by the applicant, you know, and that sort of, it doesn't say until, unless a longer, unless the applicant, or to the extent that the applicant requested or, youknow It doesn't make it clear that the applicant has the power to keep it with the 16 Commission forever. It seems to me that clearly the applicant has 90 days and then to the extent that the Commission will agree to extend it and the applicant agrees to extend it, then it can stay. But I think there's some ambiguity there. So, I don't know If the applicant wants to keep it till the next meeting and nobody has a big objection to that, then I'm not going to stand in the way of that. LIM: That is our request, to the March 20th meeting. YtTEN: I understand what Mr. Torigoe is saying about the wording. But I do think that because of the consequences of an unfavorable recommendation that in the normal course if the applicant does not, wants to keep their request at the Planning Commission in the hope of getting a favorable recommendation, they should be able to do that. I mean it's subject to reason. If it's something that stalls matters at the Planning Commission over and over and it's not going anywhere, I can see the Planning Commission sending it up. But I think generally we ought to honor the applicant's request if they want to keep the matter at the Commission. WOODWARD: Mr. Chairman? WATANABE: Mr. Woodward. WOODWARD: Since we were unable to reach a decision and given Mr. Yuen's advice, I would move that we continue Item No. 5 until the March 20th meeting. WATANABE: Okay, we have a motion. Is there any second? DOMINGO: Second. WATANABE: You second, Mr. DOMINGO: Second. WATANABE: Yes, okay, Mr. Domingo seconds. Yes, comment, Mr. Rho? RHO: I have a question. WATANABE: Yes. RHO: So there's a motion, there's a second. And if we can't, we don't have five votes, and then what happens? We're going to stay here all night? WATANABE: Yeah TORIGOE: You know, what I would suggest is that I think given the ambiguity that we seem to have encountered here, I think, my recommendation would be to go ahead, and if the applicant is requesting one more continuance, my recommendation would be just to say that at 17 1 this point as a matter of the rules and of law that we will go ahead and continue it to the next meeting and then, youknow WATANABE: No, it's March 20tH TORIGOE: I'm sorry, the March 20th meeting. WATANABE: Comment RHO: Which doesn't then require a vote? TORIGOE: Right. RHO: Is that what you're saying? TORIGOE: Right. RHO: Okay. I have a question. You know, we have written records now of what we each said and discussed, etc. etc. What actually goes up to the Council if, in fact, this thing, this Item Agenda 5 gets continued to March 20th? Does anything dealing with Item No. 5 besides maybe the minutes go up to the Council? TORIGOE: Yeah, the whole transcript basically would be going up at this point, everything you've discussed. RHO: How about the notation that we were in discussions about this draft? TORIGOE: It's all in the transcript. RHO: It's all in the transcript. But not necessarily in a specific cover memo to the decision that was made for No. 4? I mean I don't know what the form is. I mean you guys do a special thing for No. 4, and No. 5 just gets included in the minutes and sent up? WATANABE: I'm lost. What do you mean by special thing for No. 4? RHO: I'm not sure because I'm not sure what exactly happens at the Council level WATANABE: I think if any RHO: But I guess my problem is that these two issues are so interrelated I agree that if we could have gotten the parties together, and you guys encouraged them three times at least in my presence, to actually reach a compromise, that's what we wanted but we couldn't get it. All No. 5 does, and what to me this does, is try to reach a compromise for them aver we voted inconclusively, but we voted and we're going to send up a negative 18 recommendation on this rezoning thing. So if the Council votes in favor of the Director's recommended rezoning, all of this becomes moot, right? WATANABE: Exactly. RHO: So what I want to know is what actually and how it gets sent up to the Council, because I think what would happen is you're going to just make them even more confused as to what we as a body either agreed to or disagreed to do. WATANABE: Well, for the record, we never agreed to do anything. We couldn't agree. TORIGOE: At this point basically if we just say that, all right, we think that the rules allow for the applicant to request at least one more continuance to March 20th, one of the things we were talking about doing if there were a continuance was adding a notation to the transmittal of the default negative recommendation on 4.a. and 4.b., adding to that notation that there is a request for extension still being considered before the Planning Commission, just to inform them that the story is still going on and they can expect more. RHO: Okay, I would personally prefer that we actually had a vote on extending the timeline to March 20th instead of as you are recommending WATANABE: Well, yeah, there was a motion and it was seconded, but then you wanted to comment so we didn't vote. RHO: I know, but then our counsel though is recommending that you just decree that WATANABE: Well, because you brought up the probability that we would have no outcome out of the vote RHO: Right. WATANABE: Which is a real probability; and that's how we got to this point. So if RHO: Well, I think that probability has lessened because I need to put this to bed, or we need to put this to bed. But I don't want this to be put to bed by you just flat out decreeing that this is extended. I think that the Commission should take a vote to extend or not extend. WATANABE: You meaning counsel? RHO: Huh? WATANABE: You meaning counsel? 19 RHO: No, no, this Commission needs to vote instead of the Chairman extending it by decree, I guess I WATANABE: I didn't extend by decree. RHO: No, no TORIGOE Okay, well RHO: As he's suggesting though that you do that, that you just say that that's extended without WATANABE: Okay, okay. Mr. Graham. GRAHAM: Yeah, we do have a motion before us. And I think Mr. Torigoe was suggesting that we could extend it sort of administratively instead of with a motion; and you're preferring that we have the motion and that we act on our, or affirm as to whether to extend or not. And in my own case, especially given Mr. Yuen's comments about fairness to the applicant, you know, I'm willing to support the motion to continue. WATANABE: Okay. So let's have the vote, Mr. Darrow. DARROW: Thank you, Mr. Chairman. The motion before us is to continue Agenda Item No. 5, the time extension amendment request by Kohala LLC until March 20, 2008. With that I'll take the roll. Commissioner Woodward? WOODWARD: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Graham? G Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: And Mr. Chairman? 20 _ ; w. _ _ _ WATANABE: Aye. DARROW: The motion passes six to zero. TORIGOE: Okay. WATANABE: Okay. WOODWARD: He was just tweaking us. WATANABE: Okay. Is it all right? So we have extended then to March 20th, and I note staff will place a note that we are considering this, for the benefit of the Council; and, you know, I welcome your comments for, and revisions and discussion at the March 20th meeting. LIM: With regard to that March 20th meeting, I'm going to be still following the SMA submittal of Findings of Fact, Conclusions of Law, and Decision and Order that we talked about at the last meeting on December 12th, which basically contemplates that we will file our proposed Findings of Fact, Conclusions of Law and Decision and Order and any legal memoranda by February 8, 2008. The Planning Director can respond by February 29th if he wishes. We would be able to rebut by March 3rd; and then we would come back for the hearing on March 20th. And all Commissioners would have read the record and hear us argue, and that way we would satisfy the requirements of Chapter 91 so all of you could vote. WATANABE: Good, thank you. So everything will go as previously agreed. DOMINGO: Mr. Chairman? WATANABE: Yes. DOMINGO: What is to become of the recommendations that you've submitted for the extension of time? You WATANABE: We already continued that, the extension of time, to the March 20th meeting. DOMINGO: Okay, now what of the recommendation that you submitted? WATANABE: These are not recommendations. This is a draft for discussion purposes. This is, nothing was approved. So DOMINGO: So WATANABE: If you're concerned whether this was approved or not, it's not. 21 _ _ _ _ w_ DOMINGO: No, no. I'm not concerned about that was approved. I'm concerned if that would be agendized for that meeting because we had not officially approved that and included that as an agenda for today's meeting. WATANABE: Well, Mr. Lim is going to come up with some suggested stuff, yeah. DOMINGO: Only because we submitted for the Commission's consideration. He had no choice but to say give me some time so I can go back to my clients and see whether or not they would accept or they have any amendments to it. That's how I understand it. WATANABE: Well, he's perfectly capable of coming up and saying I want to stick with the 50 and bring that up and all I want to do is just the time. extension. And if he gets the votes, he gets the votes.. That's fine. DOMINGO: Well, you know, technically we had not approved or accepted that recommendation as part of today's agenda for us to effectuate any legal, legal avenue to which we can consider that in the next meeting. That's what I'm saying. WOODWARD: Mr. Chairman, if I might WATANABE: Yes. WOODARD: I think, Commissioner Domingo, that these were just talking points. These were ideas that might help come to a change in the applicant's proposal that perhaps the Commission can agree on; but it's up to them. These are not things we can dictate to them. These are things they have to look over, see if they can revise their proposal to a point that the Commission can come up with an approval. So these are really talking points not DOMINGO: Yeah. I appreciate that, Mr. Woodward. It's talking points. But when we surface it and give it to the applicant for its consideration we are in essence saying consider this as amendment to the zoning bill. Now his presentation at the next meeting would be based on what's in that recommendation. And what I'm saying is that to begin with in the very beginning, is that within the purview of a recommendation for extension of time? Can we go through the whole ordinance and pick and choose what we want to change? WATANABE: Mr. Director? YUEN: Yeah, Iunderstand, I DOMINGO: In fact, can we amend, can we amend the ordinance? I think I heard earlier part of the day that we cannot amend the ordinance. YtJEN: Well, I think you cannot, you can't introduce an entirely new bill. For example, the Commission cannot introduce an ordinance to rezone the property to A-la. All right? But I understand exactly what you're saying about agendizing an item and there's an application in. We receive an application, it's strictly an application for a time extension 22 typically from the applicant. I can tell you though that in practice, you know, we have to be pragmatic about this, and it has happened that when the Department, the Department takes in an application for a time extension and finds conditions that need to be modified in the bill; and we have added conditions and brought them to the Planning Commission, and changed them in the course of the time extension. We have done that. And then, now then we have to be real careful because when it goes to Council, and usually we don't have a bill prepared, well, we'll have a draft, you know, changes before the Commission. But when we send the bill to Council we have to be real careful about the title of the bill reflecting all the changes that are made. But this, again, you have to be practical about this because the applicant will know, oh, I need a time extension; and the Department will process, you know, just do an initial review of the bill when it comes in and will say, yeah, that's right, you need a time extension. We'll start to process the time extension. As we go through it we' 11 say, oh, this condition needs to be changed.. Even things that are really simple, like this was done already so we're going to take it out and we' 11 make all these changes and bring it to the Commission. So I think you can modify bills that are pending, that are just time extensions that are, and you can modify them pending going up to the Council at the Commission stage. WOODWARD: If I might, Mr. Chairman. WATANABE: Mr. Woodward. WOODWARD: I think, the way I look at this, this is Commissioner Watanabe's suggestions; and we do this all the time if we're discussing an SMA Permit or anything, is we suggest we change this condition, we change the way this is done. It's generally done verbally. It just so happened that Commissioner Watanabe took the time to write this out to try and make some suggestions to achieve a consensus. So I think it's the same as the suggestions we all make, although most of the time they're made verbally here. This just happens to be in writing. WATANABE: Mr. Domingo, well DOMINGO: I rest my case. WATANABE: Well, DOMINGO: I yield to the judge. WATANABE: Well, that's what I was hoping we wouldn't have to go to, but we're probably going to wind up there anyway if we're not going to decide on any ofthis So, anyway, Mr. Lim, then we will see you again on March 20th and I guess we'll get your information prior to that. Yeah? LIM: That's correct. Thank you. WATANABE: Thank you, thank you. 23 _ _ _ .r , . -.,gym The discussion ended at 7:18 p.m. Respectfully submitted, /s/ Sharon M. Nomura Sharon M. Nomura, East Hawaii Secretary ATTEST: /s/ Noriko Sauer Noriko Sauer, West Hawaii Secretary 24 PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT DECEMBER 12, 2007 A regularly advertised hearing on the applications of Initiator PLAN~NIlVG DIRECTOR and Applicant KOHALA LLC (REZ 866/SMA 379) was called to order at 9:20 a.m. at the Waikoloa Beach Marriott Hotel, Alii I, 69-275 Waikoloa Beach Drive, Waikoloa, Hawaii, with Chairman William Graham presiding. PRESENT: William Graham ABSENT & EXCUSED: Andrew Iwashita C. Kimo Alameda Takashi Domingo Shelly Ogata Alvin Rho Rene' Siracusa Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Christopher Yuen, Planning Director And approximately 11 people from the public in attendance. INITIATOR: PLANNING DIRECTOR a. Continued hearing on the Planning Director's initiation of a Change of Zone (REZ 07- 000067) for 37.88 acres of land from aSingle-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-Sa) district. b. Continued hearing on the repeal of Ordinance No. 97-102 which rezoned 37.88 acres of land from an Agricultural 5-acre (A-Sa) to aSingle-Family Residential 15,000-square foot (RS-15) district. c. Continued hearing on the revocation of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1St, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (REZ 8661SMA 379) a. Continued hearing on an amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to aSingle-Family Residentia115,000-square foot (RS-15) district. 1 b. Continued hearing on an amendment to Condition 4 (time to secure final subdivision approval) Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1St, North Kohala, Hawaii, TMK: 5 -9-1: 8. GRAHAM: The first item on our agenda today is athree-part item, initiated by the Planning Director, and it has a relation to Item 2 where the application is Kohala LLC. The first item initiated by the Planning Director -these are continued hearings in both Items 1 and 2 -the Planning Director's initiation is for a change of zone on 37 acres of land from Single-Family RS-15 to Residential and Agricultural 5-acre, which is RA-5. The second part of that is repeal of Zoning Ordinance 97-102 which rezoned the same parcel of land from Ag-5 to Single-Family Residential RS-15. And the third part of the Planning Director's initiated agenda item is also a continued hearing on revoking the SMA, Special Management Area Use Permit No. 379, which allowed a development of a 50-lot single-family subdivision on this same piece of land. The piece of land is owned by Kohala LLC. It's located along the makai side of Akoni Pule Highway and the Kohala Ranch Subdivision; that's in Ahupuaa of Kahua 1, North Kohala, Hawaii. The second item of business, which I'm going to put forthright now because I think we're going to for the most part handle the two of them concurrently, is an application by Kohala LLC. It also has been continued from prior meetings. It's asking for an amendment to Condition C, which is a timing condition to secure final plan (sic) approval; that amendment is to Change of Zone Ordinance No. 97-102, which rezoned the same parcel of land we were speaking of, 37.88 acres, from Ag-Sato Single-Family Residential 15,000-square foot, which we call RS-15. And the second part of Kohala LLC's application is a continued hearing also on an amendment to Condition 4, another time related amendment, time to secure subdivision approval, and that's related to .Special Management Area Use Permit No. 379, which allowed the development of the 50-lot single-family residential subdivision. And again we're speaking of the same piece of property I spoke to before in North Kohala on the makai side of the Akoni Pule Highway across from the Kohala Ranch Subdivision. We have communications on these items, both from the Planning Director and the attorney for the applicant. VVe have one person signed up to speak from the public today. And before we do any of that, Jeff will give us a little background on both of these items. Jeff? DARRO~V: Thank you, Mr. Chairman. Good morning, Members of the Planning Commission. Usually we do give a brief background on this particular application, but I've been asked to defer this to the Planning Director. I just wanted to bring to your attention that we have received also a correspondence this morning from, which is dated December 1 lth as well as August 30, 2007, these are two letters and they are from different parties, six different parties that are listed on the letters. These appear to be support letters for the Planning Director's action. If I could defer this to the Planning Director at this time. GRAHAM; All right. Mr. Yuen? YCTEN: Good morning, everybody. The short story is that the applicant has asked for deferral of any action today, and I have written a letter which was put out yesterday and 2 should be on your tables, I hope that you've gotten, where I suggested that action be deferred until the January 11, 2008, meeting which is the next Nest Hawaii meeting. I can then give a little longer background on where we are and what is in front of the Planning Commission here. So just briefly There was a question? Yes? WATANABE: Yeah, I GRAHAM: Commissioner Watanabe, you had a question? WATANABE: I'm wondering if, I understand what is going on, but I'm wondering if it's going to help to expand upon the discussions or lack of discussions that have gone on between the applicant and the Planning Department. GRAHAM: I think we should, personally I think we should just go ahead with Mr. Yuen's commentary now, and then once we have everything spoken, we can, you know, discuss more on where I think you might be coming from, if that's okay. WATANABE: Okay. GRAHAM: Go ahead, Mr. Yuen. YUEN: Okay. What this, to start with the beginning, in 1997 there was an application, this is, concerns the 38-acre property on the North Kohala shoreline, roughly across from the entrance to the Kohala Estates Subdivision. It was, in 1997 at the landowner's request, it was rezoned from Agricultural S-acres to Residential 15,000-square foot lots. At the same time the Planning Commission approved an SMA permit which would allow a maximum of 50 lots to be developed there. The rezoning ordinance and SMA permit both had time conditions requiring that final subdivision approval be obtained within 5 years; that would have been July of 2002. There was a provision for one administrative time extension in that, which would have been July of 2007. No request for the administrative time extension was actually made, and no plans for either for preliminary subdivision approval have been submitted. So naturally, final subdivision approval was not obtained. In late May 2007, I initiated a revocation of the SMA permit and an ordinance which would change the zoning essentially to what had been before, which would be RA-Sa, which is 5-acre minimum lot size. Shortly thereafter the applicant initiated a request to extend the time on the SMA permit and on the rezoning. So what the Planning Commission has in front of it is two of these related actions. And the extension of time on the zoning would have to go, or the change of zoning, both of those eventually would have to be decided by the County Council; the Planning Commission provides a recommendation to the Council on those. The SMA permit, the Planning Commission would make the final decision on either extending time or revoking it. However, if the Planning Commission extended time on the SMA permit and the Council changed the zoning, then the SMA permit would become void because of inconsistency with the zoning. GRAHAM: Yes, Commissioner Siracusa? SIRACUSA: And if it was the other way around? G : The Council only takes action on the zoning. 3 SIRACUSA: If that condition, situation was reversed? YUEN: Yes, if the Planning Commission revoked the SMA permit and the Council continued the current zoning, the applicant would have to come in for a new SMA permit. GRAHAM: Okay. Any further questions of Mr. Yuen? All right. Jeff, did you have anything further to give on your presentation? DARROW: That's it. Thank you. GRAHAM: Okay. I think we have probably a few comments from Commissioners, we also have a public testifier, and of course we'll have the applicant, Mr. Lim, come forward before we go anywhere with this. So my question is just how do we sequence that. TORIGOE: Public testimony. GRAHAM: Pardon? TORIGOE: Public testimony. G Okay. Maybe good to take the public testimony at this point since we've kind of heaxd from Mr. Yuen exactly where we stand and what's at stake here. I have a Gail Byrne signed up to testify. If you could come forward, Gail. BYRNE: Good morning. GRAHAM: Thank you. Could you BYRNE: Do I need to hold this, or am I DARROW: Yes. BYRNE: Okay. G Could you raise your right hand, so I swear you in first? BYRNE: Sure. GRAHAM: Do you swear or affirm to tell the truth on this matter before the Planning Commission today? BYRNE; Yes. GRAHAM: Thank you. BYRNE: Thank you. 4 GRAHAM: Then we'll hear your testimony. And when you start, just give your name and address, so it's on the record for us. BYRNE: Sure. GRAHAM: Thanks. BYRNE: And I'll keep it brief 'cause it looks like it's going to be deferred to January. So we'll come back in January; and there will be other representatives here from the organizations I'm, that also signed this testimony. My name is Gail Byrne, and I'm representing Malama Kohala Kahakai as well as five other non-profit organizations in Kohala. And we testified and submitted testimony at the August Planning Commission and supported the Planning Director's actions to repeal Ordinance 97-102 and to revoke the Special Management Area Permit 379. We also asked at that time, and we continue to ask, for a change of zone to at least Ag 20a; and there is really strong basis for that. In brief, there is over 30 years of State and County resolutions, Community Development Plans, and community petitions have called for this coast to be zoned Open and Conservation. Coastal zoning of Ag-5 a has never been aligned with what the community has wanted for this shoreline and it's very well documented history. I think I provided that in August, over 30 years of work regarding that. RA-20 is more aligned with the long-standing ,documented work of the community. You know, most significantly, as I understand it, this applicant doesn't meet the conditions for a time extension. The conditions and contexts under which this application was initially approved have changed. This proj ect is not consistent with the present and past General Plans, it is not consistent with input received from the community during the recent readiness process for the North Kohala Community Development Planning process that's undergoing, and it is not consistent with draft recommendations that are coming out of the focus groups up there, which are calling for a rezoning of the State coastal lands to Conservation, finally getting to what the community has asked for over 30 years. So they list some other reasons why RA-20 is valid here; I won't go into this again. We'll be back in January. I just want to thank you for your time this morning. GRAHAM: Thanks, Ms. Byrne. Do we have any questions for the testifier from the Commissioners? SIRACUSA: Yes. GRAHAM: Commissioner Siracusa? SIRACUSA: You mentioned that you were representing, I believe, five different groups. Could you tell us what those groups are? BYRNE: Sure. They are listed on the back of the, I don't know if you've got a copy; I brought in copies this morning for everyone. The organizations, I'm with Malama Kohala Kahakai; there's Maikai`i Kamakani `0 Kohala, Kamakani `0 Kohala Ohana, the Kohala Historic and Cultural Preservation Group, Malama Na Wahi Pana 0 Kohala and Hui Lihikai. 5 SIRACUSA: Thank you. BYRNE: Yeah, and together these organizations represent nearly 400 families in North Kohala. Thank you. GRAHAM: Thank you. Yes, Commissioner Alameda? ALAMEDA: Thank you. Thank you for your testimony. You also mentioned that there is a group of Kohala residents that are in process of planning for what they would like to see in Kohala. What group is that? BYRNE: Yeah, we are, there's a, the County has initiated Community Development Planning process in North Kohala, like the one that's going on in Kona and Puna. So we're in the midst of that right now. ALAMEDA: Okay, thanks. BYRNE: Thank you. GRAHAM: Anything further? DOMINGO: Mr. Chairman? GRAHAM: Commissioner Domingo? DOMINGO: I' d like to ask our staff a question. Is this particular area, what it's General Plan for? DARROW: The General Plan for this particular area at this time is Low Density Urban, Extensive Agricultural and Open; all of these three designations affect the property. More specifically the Open designation is along the coastline, the Low Density Urban affects the southern portion of the property, and a portion of the northern piece of the property is Extensive Agriculture. DOMINGO: When was that General Plan adopted? The provisions of this, the part that is directly applicable to this parcel? DARROW: I'm not sure when the first date was, but I do not think it was amended on the last General Plan. So it was in effect at least from 1989 is my understanding, and even, could be even further. DOMINGO: So then if the zoning is consistent with the General Plan, then the statement that this proj ect is not consistent with the present General Plan is erroneous, huh? DARROW: I believe that itwas Is that the Community Development Plan or the General Plan? DOMINGO: It refers to the General Plan. 6 DARROW: I think it's referring to the element, the natural beauty element. Is that correct? So it's referring to the actual element of natural beauty, not so much the LUPAG designation. GRAHAM: Commissioner Domingo, would you like the testifier to explain a little bit why she said that? DOMINGO: Yeah, that'll help. BYRNE: Sure. The Community Development Plans are a component of the General Plans to help implement the General Plans, and the recommendations ofthe 1983 Community Development Plan were to zone the entire coast ConservationlOpen. There have also been joint resolutions out of the State Legislature asking for the same. And the Planning Commission in the past has actually supported similar initiatives. So I guess it's a matter of interpretation, but certainly Development Plans in the past were recommended now. DOMINGO: Yeah, it seems like you mentioned that in 1983 all the ongoing discussions indicated that you folks wanted to have it Open and into 20-acre Ag, yeah? But somehow that suggestion on that part of your Community Development Plan was not followed and not implemented because the Planning Department has not up to this moment even changed the General Plan. So I'd just like to make that clear. BYRNE: Uh huh. DOMINGO: Okay? GRAHAM: Thank you. Any other questions for the testifier? Yes, Commissioner Alameda? ALAMEDA: Sorry. I'm interested in this Community Development Planning process 'cause that in a nutshell will kind of give us one idea of maybe where the community is headed in their thinking, yeah? Are you an active participant of that Community Development Planning process? BYRNE: In one of the focus groups, yeah. And I attended most of other meetings. ALAMEDA: Okay. Does it feel like it's collaborative and there is, youknow BYRNE: The community up there is very special; in North Kohala they are immensely involved in what's going on. Chris can probably speak to that a little bit, and certainly the planners from the County that are involved in that. There're focus groups in Kona and South Kohala and Puna; their groups focus on certain issues and they make recommendations to the general steering committee, and often they meet with their consultants. But folks in North Kohala are so, care so deeply about where they live and really want to make a difference, and they have really stepped up to the plate, and they have really in the last 30 years. But they meet regularly, almost weekly, not just with, when the consultants are there. You'll 7 find in other processes they tend to meet just when the paid consultants are there. So they are doing a ton of work on their own. ALAMEDA: Okay, good. Very good. Thank you. DOMINGO: Mr. Chairman? GRAHAM: ~ Yes, Commissioner Domingo? DOMINGO: I commend the efforts of you and those in the community in keeping a sharp vigil on what's really happening in a way of development in the North Kohala, and I think it would be nice if all the communities throughout the island would do such a thing; and then we would know that the growth and development is happening according to what the community actually all want. But I think in this particular case, as you indicated, that the Development Plan should be reflective of the General Plan. And unfortunately at this time in your deliberations, the General Plan and what's in the General Plan and what you say now, I feel personally, contradicts, somewhat contradicts each other BYRNE: Yeah, we've been very frustrated by that. Not just me but people for decades. I mean last time I brought in a stack of petitions dating from 2002, 2000 and 1988, asking for different zoning, but they, you know, whatever reasons there have been different decisions made regarding that. DOMINGO: Uh huh. Thank you very much. BYRNE: Thank you. GRAHAM: All right. Planning Director Yuen? YtTEN: Yeah, just for the sake of the Commission, we are having a presentation tomorrow morning by staff working on the various Community Develop Plans. So we can talk about the update of that. It's mostly a procedural thing, just to let you know how it's going. GRAHAM: Thank you. Is there anyone else from the public who would like to speak on this matter today? DOMINGO: Mr. Chairman? GRAHAM: Yes, Commissioner Domingo? DOMINGO: Just one simple question here, probably to the Planning Department staff. Have there been any attempts to change, amend the General Plan to reflect what the community actually wants to accomplish with regard to the entire North Kohala coast? Have there been any applications or any requests for that consideration be made with regard to changing that portion of the General Plan? GRAHAM: Mr. Yuen, maybe you could best address that? 8 YUEN: In the General Plan update that was started in the late 1990s and finally passed in 2005, I don't believe that there were any specific changes to the General Plan maps involving the coastal areas. I would like to say, though, that although the General Plan may have an area as an Urban area, some kind of Urban designation, that the Planning Commission, the County Council and the Planning Department still have to make a site specific judgment as to whether that property should in fact be zoned for some kind of Urban use. The General Plan maps are taken on a broad scale; they show the general locations of uses and do not generally when you adopt the General Plan map, you aren't looking at all the factors that may affect the actual usability or desirability of the property for a particular use by drainage, historic sites, viewplanes and the like. So there is still that analysis that has to be made on the zoning level and on the SMA level by the Planning Commission and the Council. GRAHAM: Thank you, Mr. Yuen. DOMINGO: Mr. Chairman, Mr. Chairman? GRAHAM: Yeah, Mr. Domingo. Remember we do have a ways to go on this. We're going to hear from the applicant, then we're going to discuss, so DOMINGO: Yeah, I understand, but you know, I'd just like to lay foundation for me GRAHAM: Okay. DOMINGO: And make it clear as to where I'm coming from. And I think with regard to having a workshop tomorrow, I think it's good and I hope that people from the community would come and listen to try to understand what the process is like; because there being no request for any kind of General Plan amendment in this North Kohala coast indicates that somewhat there might be misunderstanding of what can be done and what would be done in the best interest of what the people actually want. And you know, it's not like the Community Development Plan would actually drive the whole force, but as we've been open told the General Plan is a document, is a general document, and the Development Plan as we consider, decide on more finer and detailed development of a particular area is done through the Community Development Plan. And you know, I think where we need to make the initial changes would be at the General Plan review. And this particular case, it was mentioned that the Planning Commission and the Council and the Planning Department would decide where the finer boundaries of the development would be allowed, when you consider Urban and Ag and all of that. But you know, that not being done, when any particular application comes before the Council or the Planning Commission, in essence by default the decisions that they make is a statement of policy which would designate the proper use for that particular area based on what the General Plan speaks. And you know, if the General Plan is broad and the LUPAG map indicates a certain use for that particular land is such that it would be Rural, Ag or whatever, then the question is how far do we draw the line. And that line, the specific line, is not being drawn at any time by the Commission, the Planning Department nor the Council. So when anyone comes with an application for any kind of development before the Planning Commission or the Planning Department, the Planning Department looks at that, and looks at the LUPAG map, and they at that time initially would indicate, you know, this falls within the general context of what the General Plan is saying. So what actually happens is that the Planning Department then processes that application, and the Planning Commission in turn would recommend approval or 9 denial of that; and with any application that is done in the advisory capacity, and it's sent up to the Council with the Council making the final determination. And with any zoning or General Plan amendment or whatever land use issues and decisions you have to make, the final decision makers would be the County Council. So what we discuss from time to time and we reference to is something that is acted upon officially and is made law through ordinances, and that, which we must follow. So you know, that's my understanding of the whole process in brief, and I just wanted to make myself clear as to what, how I'm looking at it. It all depends, it all starts with the community coming together and deciding what they want for that particular community, and that has to be effectuated through the amendment of the General Plan, and then you follow up with the Community Development Plan or some specific issues if you want concerning a particular parcel. Thank you, Mr. Chairman. GRAHAM: Okay. Could the applicant's representative come forward, please? Good morning, Mr. Lim. Yes, please. Do you swear or affirm to tell the truth on this matter today before the Hawaii County Planning Commission? LIM: I do. GRAHAM: Thank you. And could you start with your name and address, and give us whatever presentation you would like? LIM: Sure. I'm Steven Lim representing Kohala, LLC, with the Carlsmith firm at P. 0. Box 121 in Hilo. Basically what we are here for is, you know, we had an exchange of letters - I think the letters will speak for themselves - we obviously have a disagreement over, you know, how to interpret what happened. But I think, let's move past that, I would like to respond to the proposed date that the Planning Director is giving of January 11th. I think what we are trying to accomplish -and you understand, I think, that this is a very serious matter for the landowner. We believe that it's an unprecedented action - I'm sure the Planning Director disagrees -but you know, we're looking at it, we are the ones in the gun sights right now. So what we are trying to do is to see if we can establish a procedure by which the applicant and the Planning Director will have time to prepare their legal memoranda, submit their proposed Findings of Fact, Conclusions of Law, Decision and Order, and then have the Commission have enough time to review those; and then we come back for a public hearing in which you would hear our arguments under Chapter 91, which with your review of the transcripts would then qualify all the Planning Commissioners to vote on the matter. That's our intended goal. I, you know, the Planning Director's proposed continuance to the date of January 11th doesn't let us do that. So what I was proposing, I would like to propose, is that the Commission adopt the following schedule: We would have the Kohala LLC legal memoranda and their proposed Findings of Fact, Conclusions of Law, Decision and Order submitted to the Commission and the Director no later than February 8th of this next year 2008; by Thursday (sic), February 29th, which gives them almost a month, the Planning Director would submit any legal memoranda or any proposed Findings of Fact, Conclusions of Law, and Decision and Order that he wishes to propose - we still agree that the Planning Director's background and recommendation can serve as that, if he wants to; by Friday, March 7, 2008, Kohala LLC would submit any rebuttal memoranda or comments on the proposed Findings that the Planning Director submits; and then we come back for the, what I believe to be the Planning Commission's March 20, 2008, hearing in Kona; at that point we would argue the proposed Decision and Order, and the Planning Commission could then start to take final action on the matter. I think that gives everybody 10 enough time to prepare their legal memoranda and their proposed Findings, and that gives the Planning Commission something in the neighborhood of two weeks till, before the hearing to happen everything in front of you rather than have it two or three days, you know, like as often times happens. So that's our request. GRAHAM: Thank you, Mr. Lim. I missed the last meeting that we had where this was brought up, but I do remember back in, I think it was the August meeting that I chaired, at that time I thought the way we left it was that you needed to get some additional documents from the Planning Department, so that you could prepare your Findings of Fact, Decision and Order at that time. Have you gotten those documents that you need or LIM: Yes, we believe we have gotten the documents. Planning Department staff has asked us for a list of the documents that we did get, so we're going to prepare that for them. G Okay. I think I also asked Director Yuen at that time if he could provide some written reports on the nature of the flooding that went on apparently at some point after the earthquake and left a lot of sedimentation along the coast in that area. Have you been able to chase them down at all, Mr. Yuen? YUEN: Yes, we have that and we can have that before the Commission when they take this up on the merits. G All right. YUEN: We can have that well in advance. There isn't, well, they are somewhat informal; some of that are by lengthy emails that were done by people with the Division of Aquatic Resources. But we can have that, and naturally of course we would copy to Kohala LLC. GRAHAM: Do we have any other questions from the Commissioners of the applicant's representative? Commissioner Alameda? ALAMEDA: I have one for the Director, if it's okay now. GRAHAM: Sure. ALAMEDA: I've heard the pros of why we should maybe abide by Mr. Lim's request. But what will be the cons? YUEN: Well, in thinking about this, it's an extremely long time to deal with the matter. However, let me make a suggestion. There's actually two different items here: One is the rezoning and the other is the SMA permit. The Planning Commission is advisory on the rezoning that ultimately goes to the Council for final decision; there is no reason to keep that here. There is no requirement of Findings of Fact, Conclusions of Law, etc. in a rezoning because it's not an administrative permit that has these formal requirements. I would suggest that the Planning Commission take up the matter of the rezoning on January 11th, try to come to a recommendation that it takes to the Council on both Kohala LLC's request and the Planning 11 Department's alternative. And if the Planning Commission is not able to come to a decision on that by a 5-member vote, there is, the procedure under the ordinance is that the Commission has 60 days to make a recommendation to the Council on a Director initiated rezoning. And my suggestion isthat -and depending on whether you count that there was a period of a voluntary deferral by the parties, which I would not count against the 60 days, however, this rezoning is supposed to move up from the Planning Commission to the County Council within the timeframe - so m su estion is that we, the Commission act on that on the January 11 th meeting, and if it y gg is not able to act on it, then that would move up to the County Council. I have certainly no objection as well to the rezoning request from Kohala LLC also moving up to the Council at the same time. And then following the suggestion on the schedule for the SMA permit, which in any event is only valid if the Council enacts Kohala Kohala LLC's request for an extension of their SMA permit is only valid anyway, if the Council does rezone the property. GRAHAM: Mr. Lim, do you have aresponse LIM: Yeah, obviously we have an obj ection ' cause it accomplishes the same thing; it forces us into hurrying up. I mean that was the whole point of my last letter is I'm trying to give the applicant an opportunity and a fair opportunity to the Planning Commission to review all the legal arguments and make a reasoned decision on both matters. I think everybody recognizes that this change of zone and the SMA permit are intertwined, and to send one up without the other is nonsensical tome. We would object to that. GRAHAM: All right. Commissioner Watanabe? WATANABE: Yeah, I have a question for Ivan. Now the Rules as far as if we cannot arrive at a majority decision for a change of zone, then it implies that we send up a negative recommendation. Is that correct? TORIGOE: Right. If you look at your Rule 11-3(c), which is consistent with the Zoning Code, there is actually a couple of things going on: If you have the Planning Director initiated one and if you look at Rule 11-3(c}(B), it says that within 60 days after receipt of the amendment, then the Commission shall transmit the proposed amendment with its recommendation to the Council, and in the event the Commission fails to act on the amendment within the 60-day period, such inaction shall be considered as unfavorable recommendation by the Commission. You also have the request by the applicant for an extension of time, the amendment to Condition C of the change of zone ordinance, that would also be handled as an amendment and there is a, as you know, most of the time amendments are initiated by property owners; and your Rule 11-3(b)(2) says within 90 days - it's a longer period -after receipt of the application from the. Director, unless a longer period is agreed to by the applicant, the Commission shall transmit the proposed change of zone ordinance together with its recommendations; and similarly in the event that the Commission fails to act on the application within the 90-day period, the application shall be considered an unfavorable recommendation. So in either the property owner initiated or the Director initiated, if you fail to act within the prescribed period, then it goes up with a default negative recommendation. I want to note this one thing -and this is probably something that the applicant and the Director may want to respond to or give some recommendation on - there is a difference. As I noted, for the property owner initiated ones, it says that's 90 days unless a longer period is agreed to by the 12 applicant; for the Director's one, it just says within 60 days after receipt, and does not contain the same language that talks about, you know, a longer period being agreed to by the applicant. Exactly what that means, I don't think we ever dealt with that, but it's an issue that I invite the parties to address when we get to argument on the merits. WATANABE: Follow-up. GRAHAM: Yes, Commissioner Watanabe? WATANABE: Okay. I don't know if I'm reading this correctly or not, but we have two opposing proposals here: one from the applicant to extend the time and another from the Planning Director to rescind. And if we are unable to come to a maj ority decision on either one, then it implies that we will not have a maj ority decision on the other. But the Rules state in both instances that a negative recommendation is then forwarded to the County Council, and the negative recommendation in each situation will nullify the other. It's you see what I'm driving at? It doesn't make sense. You know, so unless we decide here, it's a nonsensical circular argument. GRAHAM: All right. Is it all right if I have Mr. Yuen respond? WATANABE: Please. GRAHAM: Go ahead. YUEN: There isn't any way around that. If you have contradictory applications and there isn't a maj ority vote by the Planning Commission, they will both go up with a negative recommendation. We have had, as you know, quite a few matters go to the Council with a negative recommendation due to the failure to obtain five votes by the Planning Commission either for or against the application. So we do, we transmit it to the Council with a transcript of what happened, we tell the Council what the vote was, and it does formally go up as a negative recommendation. We try to explain, we send the Planning Director's recommendation on it, so the Council has something to work with. So there really is no way around that, if the Commission does not have and in this case where there are two contradictory proposals for the same piece of property. GRAHAM: Yes, Commissioner Domingo? DOMINGO: Mr. Chairman, where are we on the time clock with regard to the submittal for the down zoning to the Planning Commission? GRAHAM: Mr. Torigoe, could you explain that sort of as concisely as possible? TORIGOE: Well, I think it's kind of a matter of calendar; it depends on when the transmittal was to the Planning Commission from the Director. DOMINGO: So Mr. Torigoe, that means that being that it's a Planning Director's initiated measure, and if we pass the 90-day mark, then it would automatically go up to the Council with a negative recommendation; that's what Iunderstand 13 WATANABE: Sixty. DOMINGO: Sixty, 60 days. So that would be forwarded to the Council with a negative recommendation by the Planning Commission. TORIGOE: Right. That's essentially what the rule says. DOMINGO: Okay. So you know, I think the critical question of the matter is where are we on the time clock. HAYASHI: Okay. The G Mr. Hayashi? HAYASHI: The Director's recommendation was forwarded to the Planning Commission on July 11th. So that's the date that you have received it. That being the case, if ou take 60 da s, then action should have been taken by September 1 lth. Y Y GRAHAM: Thank you, Mr. Hayashi YtTEN: Let me, let me lay out what the issue ishere GRAHAM: All right. Mr. Yuen. YtTEN: And I do think that in this case I would turn to the Planning Commission's counsel to tell us the proper legality of the procedure. The issue that counsel is raising is whether the, clearly under the -and the ordinance, by the way, the ordinance is the same as the Rules; the Zoning Code has the same procedure as the Planning Commission Rules -clearly under both the ordinance or the Planning Commission Rules, when an applicant landowner initiates a change to the Zoning Code, the applicant landowner can consent to the Planning Commission keeping the matter there beyond 90 days and not sending it up to the Council. The rule does not, both the rule and the ordinance don't expressly say that of a Planning Director initiated amendment. For the record, my view is that the Planning Director can consent to keep a matter at the Planning Commission beyond the 60 days. And again for the record, I would consent that this matter be ke t at the Planning Commission for action at the January 11th p meeting. I would not consent to a time period beyond that. There is also sort of a subsidiary question of whether you count periods of a voluntary deferral against the 60 days or 90 days. My view is that you it's not really that critical because, as I said, either the Planning Director can consent to extend the time beyond the 60 days or not; if the Planning Director can, then I would, as I 'ust said, consent to extend it to January 1 lth for the Planning Commission to J consider this and, to consider the rezoning aspect of it and make a decision on the merits before sending it up to the County Council, but not beyond that. GRAHAM: Thank you, Mr. Yuen. I would also like to just say to the public who's here today, this is all kind of meticulous legal kind ofback-and-forth we are doing, which doesn't probably make very good listening on your part, but it's important, it's important that we do it in a public arena. So maybe you want to take a break, maybe you want to keep listening, 14 but we'll probably be at it for another few minutes for sure. Thank you for your forbearance. Mr. Lim, do you have comment, please? LIM: Yes. Mr. Chairman and Members of the Commission, you know, we first started out this hearing some months ago, and I think one of the, my main thrust in that hearing was that we were asking the Commission for basic fairness. And you know, I think that I outlined in my proposed schedule enough, way enough time for both myself and Mr. Yuen to prepare the adequate legal arguments and proposed Findings, a very, you know, clear path to get everybody's facts on the record and you can review, you' 11 have something in the neighborhood of two weeks at least to review from the last submittal. You know, this is something that, like I said, is very important to the applicant. We feel that basic fairness dictates that we should be able to have this time. For the Planning Director to recommend that the zoning go up before the SMA action means that he wants you to vote on the matter before we even get a chance to get ready to give you our best argument. I think that's not in good faith. I think that we should have fairness. The applicant is stalled in his development because of the proposed down zoning; we've stopped all work on the proj ect. We can't proceed with the prof ect. Soto me, you know, there is no harm to the Planning Director, to the County, for us to take this extra time to give us the chance to give you, the Planning Commission, the chance to review all of the arguments and all of the facts. I think that, you know, the rush to judgment, the rush to push the change of zone ahead of the SMA action is not warranted. I think that you should consider both in your decision. Thank you. GRAHAM: Mr. Lim, one question I had, when you spoke to the Findings of Fact submittal and all, I think you had February 8th for the applicant and February 29th for the Planning Director. Why does the Planning Director need extra time to essentially do the same thing? I think you are doing it by February 8th. LIM: Yes. We figured that we would give the Planning Director adequate time. His attorneys are quite busy also, and so we didn't want them to have to respond in a week, so we thought we would give them that extra time, that's what, 21 days. GRAHAM: So when you say February 29th, you are talking about him responding to yours, not him submitting his. LIM: Yes, he could submit his own. But, yes, we would submit our legal memorandum and a proposed Findings on the 8th of February, then he would come back with his on the 29th of Febru . We would then have about maybe a week or so for rebuttal to March 7th, and then you would have all of documents at least two weeks before the hearing to review. And. . then we would come back on March 20th to argue the proposed Decision and Orders, and you could take final action at that point, if you wish to. GR.AHAlVI: I see. Also we might keep in mind that since we have a difficult decision maybe to make here today, the Planning Director is at least in general agreement with you as far as the SMA permit. So, you know, as far as us deciding what we're going to do taking votes, we might sort of split them and get one out of the way and deal with the rezoning one or I'm just throwing that out as a way to help us move forward, if we need to do that. Commissioner Watanabe? 15 WATANABE: Yeah, I have a question for the Director. You, in spite of the additional discussions that have occurred, you stand firm with January 1 lth? Because it appears that, the way that the Rules are written, that only you can consent to an extension. GRAHAM: Mr. Yuen? YLTEN: At most, yes. There is some question about whether the Planning, as Mr. Torigoe said, there is some question as to whether the Planning Director can extend the time. I would consent to extend the time to January 11 th but not beyond. WATANABE: Okay, so then that, as a follow-up, that means that for the Planning Director recommended initiatives, we -have until January 11th, which is our next meeting. Right? GRAHAM: For those pertaining to the rezoning, not to the SMA. WATANABE: Yeah, to the rezoning. Okay. Here, let me, could I continue for a second, Mr. Woodward? Here is where I'm having a problem. I don't believe that much communication has gone on in spite of the amount of time that has passed. And I agree that RS-15 is probably much too dense for the area in question. On the other hand, going from an entitlement of 50 - andit's questionable whether that entitlement even is in place at this point; I'll concede that -but going from 50 to 5 or d is a huge taking, and I'm not comfortable with either one. But as these arguments are outlined at present, I have a choice of either saying, yes, I vote for RS-15 or downsize from 50 to 6; and I'm not sure I'm comfortable with either one. And to that extent, I was hoping that we could enter into some discussions as to what the other Commissioners might be comfortable with. Now I could be in a minority and maybe everybody wants to downsize or maybe everybody wants to go to RS-15. But you know, in a final analysis we would hope that this body could make a recommendation rather than punt to the County Council. And that's my concern. GRAHAM: Thank you, Commissioner Watanabe. My sense of interpreting what he was saying is that, let's say, we come back for the January meeting, and Mr. Yuen's change of zone initiatives, we're going to make a decision one way or the other; and I think what Commissioner Watanabe is saying is he doesn't know at this time - I certainly don't know at this time -how the Commission will vote on it. So he was thinking rather than take such discrete steps along the way that he may be uncomfortable with, it might be good to initiate a discussion early like perhaps today even amongst the Planning Commission, so that the applicant and the Director, if they want to take some direction from what they hear about coming to some kind of middle ground, that's something they can be working on in a meantime rather than have the whole discussion take place in January. Is that correct? WATANABE: That's correct, and I'm just, you know, that way we can push this thing forward hopefully with a recommendation either way. GRAHAM: Thank you. Commissioner Woodward? WOODWARD: Well, I have a procedural question first. Evidently there is a question about a Director initiated motion whether it has a 6o-day limit. But cannot that be refiled if we 16 were to agree with Mr. Lim's request to defer this to the March meeting? And if there was a legal question about the Director initiative having elapsed, could that not be refiled? GRAHAM: Mr. Yuen? YUEN: Well, I would like to see the matter move forward, and the only consequence of the 60 days having run out already is that it should already have gone to the Council with a negative recommendation. GRAHAM: All right. Commissioner Siracusa? SIRACUSA: Commissioner Watanabe expressed his discomfort with the two extremes, and hoping to find some kind of a middle ground that would be satisfactory that could be worked out between the Department and the applicant. But we haven't heard from Mr. Lim on that, if he feels that his, that the applicant would want to hold a hard line to SO lots or would be willing to negotiate the number of lots and a decreased density: So unless we know if there is a willingness to negotiate on that, your point would become moot. So Mr. Lim, would you please respond to that? LIM: Yes. I' d have to of course reserve all my legal rights to the RS-15 zoning. But on the question of whether or not the applicant would be willing to negotiate on something less dense, the answer is yes; and the answer is we've tried and we were rej ected. GRAHAM: Thank you, Mr. Lim. Commissioner Domingo? DOMINGO: Thank you, Mr. Chairman. I would like to ask for confirmation from our legal counsel with regard to the statements made by Mr. Yuen regarding the time schedules and what would be in his power to make decisions that he is making, and with regard to, you know, the elapsing of the time, the time and the ability to send up a negative recommendation to the full Council. GRAHAM; Mr. Torigoe? TORIGOE: Thank you, Mr. Chairman. I am not entirely sure, exactly what you would like to hear from me is DOMINGO: Well, you know, I was hoping to have caught the Chairman's attention at the very instant when Mr. Yuen had completed his statement and to ask at that time whether in fact that what Mr. Yuen is saying is how you interpret the law or the policies and the Rules of the Commission. GRAHAM: You mean the very last statement that Mr. Yuen just made a couple of minutes ago? DOMINGO: No, not the last statement. He was explaining the applicant initiated measure and the Planning Director initiated measure. And I remember in my discussion, I pointed out that, okay, if the applicant, and we have that 60-day limit when if no action is taken, then it's sent up to the Council as a negative recommendation. But I think it's not that clear if in 17 fact that is what actually is happening here. And I think Mr. Yuen explained why it isn't. That's why, you know, I want some confirmation from Mr. Torigoe as to if he in fact agrees with that as our attorney for the Planning Commission. GRAHAM: Yeah, Mr. Torigoe, did what you hear from Planning Director Yuen all sound legally accurate to you? TORIGOE: You're referring to whether the Planning Director has authority to agree to an extension of the time beyond the 60 days. Is that the question? GRAHAM: Is that the question, Mr. Domingo? DOMINGO: Yeah, that's one of them. And, okay, when an applicant submits an application, the applicant would in fact agree to whether an extension of the 60 days would be appropriate in his favor, and he would do it. Now in this case, as the Planning Director, is there the leeway wherein he would be able to hold it on the Planning Commission level for another extension of time? TORIGOE: Yeah, you know, you can, the Planning Director has expressed a position, and I think it's an arguable position. I was hoping to get some input from both the Planning Director and the applicant regarding that before I had to give you an opinion on it. I could give you an opinion, you know, right now, but then I'm not sure if you would want to do that in an open session or whether you want to get that as amatter ofattorney-client privilege because you may disagree with my opinion and go the other way, you know, in which case the record would have me contradicting you. DOMINGO: Youknow Mr. Chairman? Thank you, Mr. Torigoe, for your comments. It's been frank and I can understand what you are saying. You know, at the last meeting we received a letter from the representative of the applicant, Mr. Lim, with regard to the application and the sequence of time that has taken place and his efforts to see if this whole issue could be resolved. And you know, in frustration, because nothing had actually happened, you know, he was forced to in his interest write that letter for the applicant. Now recently I read a reply to that by Mr. Yuen regarding what the attorney's applicant said in his letter. You know, I see in both letters and I can understand it; there is a lot of information that we need that is not in our hands. And you know, one is saying one thing and the other is reflecting on another thing. And it seems like, if you look at it, the blame is upon either one and it depends on where you are coming from, you know, whether or not you support the application, the move on or not. And that's why I think, you know, more time is needed. Both parties, as Mr. Lim indicated, would do their part and then a final analysis would be submitted to the Planning Commission for our review and study, so that we can make a decision. And whatever that decision maybe, then that will be final because at that point we would have all the information before us, the arguments, the arguments for the action or inaction of both parties. And that's what I'm looking at. G : Okay, thank you, Commissioner Domingo. I might say I think we've gotten pretty clear presentations by both the applicant and the Planning Director, and I would like to encourage us to kind of move forward rather than just chewing on the same information too long. Commissioner Watanabe? 18 WATANABE: I would like to hear from the other Commissioners really, as far as what your concerns are or whether you agree with what's been proposed, and not with regard to the procedures but with regard to the final decision, you know, as far as the zoning is concerned. And I think if we have some input there, then it will be much clear as to whether we can arrive at some type of decision come January 11th. Barring further discussion amongst us, I doubt that there's going to be any fruitful discussion between the Planning Department and the applicant. And so we'll be at the same impasse come January 1 lth, and that's why I suggest what I suggested earlier. GRAHAM: Okay. Commissioner Watanabe, the only thing that occurs to me is, like Commissioner Domingo just said he feels like he needs a lot more information, a lot more time; I think one thing we want to keep clear here is that at this point we are not making a decision about the body of it. So if the Commissioners want to speak, it's probably best they speak to concerns that they want to have brought up in additional material rather than their positions on the Planning Director's or the applicant's. WATANABE: Well, I understand what you're saying and I understand that Mr. Domingo feels like he needs more information and he needs more time. But I also understand that the Director is very firm on the January 1 lth date. So in my opinion based on the firmness of the Director's January 1 lth date, we don't have additional time, which means the zoning change goes u re ardless of what we say or decide come January 1 lth, or can't decide. What I'm trying to p g point out is that generally we do not want to punt; generally we want to come up with a decision and a recommendation. So if that is a fact, then it would be helpful I think if people would express where they stand on this to some degree, not so much to decide, but it may send a message to both parties that maybe there is compromise or maybe it's going to fly one way or the other, you know, as it stands. I'm not sure. GRAHAM:: Okay. Commissioner Woodward? WOODWARD: Yeah, I would agree with Commissioner Domingo. And one of the things that we brought up at the last time that this was addressed was that we' d like to have dialogue between the Planning Department and the applicant. And evidently that has not happened, which is unfortunate. And in that regard I think we do need more information. This is not an emergency, they are not doing anything with the property right now, and they can't until we make a decision one way or the other. So in that regard I would support Mr. Lim's recommendation that the parties be given time to prepare more information for us, and hopefully dialogue will occur between the Planning Department and the applicant, so that maybe this can be worked out in some other fashion, other than just an up or down vote. But I think the thing that disturbs me is there has been no dialogue, right, and that does bother me. And for that reason I would support Mr. Lim's recommendation that this be deferred. GRAHAM: Commissioner Alameda? ALAMEDA: Thank you, Mr. Chair. In addition to what Commissioner Woodward has suggested, I'm kind of more interested in dialogue between the developer and the Kohala community and seeing the result of that. That's kind of where I'm leaning. Commissioner Watanabe's, I want to And like in March - I was looking at the Community Development Plan timeline as one our documents - I think we should have like a rough draft over the Kohala 19 Community Development Plan, I think, around that time. So to me, I'm more interested in the dialogue between the developer and the community and seeing that result, if you will. GRAHAM: Thank you, Commissioner Alameda. Commissioner Siracusa? SIRACUSA: Yes. Relevant to that, I believe the County Council passed some resolutions about rezonings in the three districts where the Community Development Plans are being worked out. And so I'm wondering if a rezoning comes under that purview of those resolutions. GRAHAM: Mr. Yuen? YUEN: We attached copies of the resolutions to the materials that were submitted to the Commission, and the proposed rezoning that I initiated does not contradict the resolutions which ask for a moratorium. I believe that a time extension doesn't, if this were a new zoning, it would contradict the resolutions. As far as, you know, what the applicant wants, I'd have to go back and look at it to be sure, but I don't believe that the resolutions apply to time extensions. And in any event, the Planning Department and the Planning Commission have to, if an applicant chooses to submit a rezoning request that contradicts one of these resolutions, the Planning Department and the Commission are still obligated to process those through under the timeframes that are contained in it, in the ordinance. The Council can defer action, if they want, indefinitely; the Council can vote down the rezoning application. SIRACUSA: I' 11 follow up. GRAHAM: Go ahead, Commissioner Siracusa. SIRACUSA: Since everyone was giving their opinion and I hadn't stated mine, I was 'ust askin uestions. I would be willing to go along with the Director on January 11th. I think J gq there has been lots of time already for information gathering. That still gives a month; it doesn't take that long to talk to people. And if on January 1 lth everyone seems to agree that more time is needed, I understand that it can always be agreed to grant some more time. But I don't want to see this dra 'ng on forever, and so I would vote to continue the matter to the January 1 lth g~ meeting. GRAHAM: Thank you. I'd like to move our process forward. I'm not saying I want to move the application forward; I' d like to move our process forward. I think we have agreement on the SMA matters with Mr. Lim and Mr. Yuen about the schedule that Mr. Lim proposed. Could we not take a motion, and move forward and say this is how we want to handle the SMA matters as far as our continuance and what we expect from the parties? And then once we've done that, then we can look at continuing the rezoning requests both for the applicant and for the Planning Director, just so we can move through this logj am we are in in our procedures today. Commissioner Siracusa? SIRACUSA: Okay, I'll make that motion. DOMINGO: Mr. Chairman? 20 GRAHAM: All right. Commissioner Domingo has something he wants to say also. Go ahead. DOMINGO: Yes. I had my hand up for a while. But during that opportunity to the other half of the table, to people who haven't spoken yet, I thought I'd just wait and see that through, and then I'd like to speak. You know, trying to put things in proper perspective, and you know, first, I totally respect the efforts of people in the community who'd like to participate in the decision-making process that we have in our government, and it's real important that they do that. But in this particular case, what we are looking at is entitlements that have been given to an individual in a community to do and to carry out his plan. And this whole acquisition of these entitlements has gone through a lengthy process of hearings, a number of hearings, and participation by those who are interested in the matter. Now they have been given those entitlements, and what we are doing now is trying to take back those entitlements. And you know, for one, forme I' d like to know what has drastically happened between -was that 19? - 1997till now that warrants the government to come up and take away those entitlements, you know. Vie are talking about fairness. You can apply to this principle to anyone on this island, anyone in the community where you live; and if you by some desire decide to have your parcel rezoned, you know, at a time, and because you haven't been able to develop it or because the parcel you bought has gone to some other person's hands and they have not complied with some requirements of the zoning heaxing at that time, now we are asking this other individual who bought the property, you cannot develop that because there is some ties to it. Apply it - we are looking at a developer, you know, we are looking at a developer -but put that same situation in your life as an individual, as a couple, as a father and a mother who' d like to give your children a parcel for them to build, you know. Now the principle is the same. There is a question of fairness right here. The applicant is asking give us more time so that we can assemble all the facts together, and let the Planning Department do the same, and we'll present it to the Commission; and you guys decide with the fullest possible complete information that we can give you. And you know, at that point my whole attitude is that, you know, let it fall where they may and if we say no, it's no. But at least we give them the fair, we treat them fairly and give that time as they requested. I think that's what they are asking. So you know, I certainly would like to see that they be given, they be given enough time to comply with our request. GRAHAM: Again, you know, I'm stuck on wanting to move today forward. And I'm sure if we take up Mr. Yuen's stuff on January 11th and we take up Mr. Lim's stuff in March, we're going to be talking all about entitlements on January 11th and we're going to talk about them all in March, so I would prefer we don't talk about that stuff right now; and we just try to move with the schedule and get the schedule we want, so that we can go on with our other business today. SIRACUSA: Point of order, Mr. Chairman? GRAHAM: Yes, Commissioner Siracusa? SIRACUSA: VVe have not closed the hearing and asked Mr. Lim to step back. GRAHAM: Thank you. 21 SIRACUSA: And I'm prepared to make a motion. And it has nothing to do with the merits of the case but with our scheduling. GRAHAM: Thank you. Do we have any further questions of Mr. Lim at this point, questions of the applicant? All right. Thank you, Mr. Lim, for your participation today. All right. Mr. Watanabe, can we go ahead with Commission Siracusa's motion now? Do you need something that needs to be said first? WATANABE: I was about to echo what you had said. And really for clarification it's, the Commission does not have the power to extend; so we are talking about extending, the only person that potentially has the power to extend is Mr. Yuen, and Mr. Yuen has adamantly stated that it's going to be January 11th. So all this talk about extension, as far as the rezoning is going, is moot because the Commission does not have the power. Now if Ms. Siracusa would like to make a motion to extend on the SMA issue, on the SMA not the rezoning, then you know, then we can proceed as the Chair has requested. GRAHAM: All right, let's hear Commissioner Siracusa's motion. Can we do that? SIlZACUSA: Can we discuss after the motion? I mean GRAHAM: Well, we're going to discuss the motion. SIRACUSA: That's when discussions happen; it's after you make a motion. GRAHAM: That's fine. So should I officially say SIRACUSA: Instead of assuming what I'm going to GRAHAM: That the hearing is closed at this time? Is that appropriate, Mr. Torigoe? SIRACUSA: I was going to move in the matter of SMA Use Permit No. 379 that we continue the hearing until January 11th GRAHAM: Do I have a SIRACUSA: And then I was going to make afollow-up motion for the rezoning. VVATANABE: I'll second. GRAHAM: Do I have a second? Okay. Now just as a point of information, I thought Mr. Lim's suggestion was that Findings of Fact, etc. would be put forward in February and that he didn't really presume that we would be hearing this again probably until March, given his schedule on the SMA. Did you understand it differently, Commissioner Siracusa? SIRACUSA: I did, but I really, I think we have so much information in front of us right now, it seems to me that what Mr. Lim is doing is a delaying tactic, and I don't feel like playing into that. 22 WATANABE: Oh, wait. I withdraw my second then because I guess I misunderstood the motion. GRAHAM: Okay, Commissioner Watanabe misunderstood, so we need another motion, I mean we need another second, if we have one for Commissioner Siracusa's motion, which ask that we continue the SMA hearing until our January meeting. Do we have a second for that? I guess the motion fails for lack of a second. Do we, I'll be asking to entertain a motion for when we might like to continue to hear the SMA matters resolved. Commissioner Watanabe? WATANABE: I would move to hear or proceed with the schedule proposed by Mr. Lim for the SMA and hear that at the - I believe it was -March 20th meeting. DOMINGO: Second. GRAHAM: All right. And the second is by whom? DOMINGO: I second. GRAHAM: Oh, Commissioner Domingo, you seconded that motion? DOMINGO: Yes, I seconded. GRAHAM: All right, thank you, just Commissioner Alameda? ALAMEDA: Is this discussion? Are we in discussion? GRAHAM: Yes, go ahead. ALAMEDA: Okay, thank you, Mr. Chair. I wanted to comment on Commissioner Watanabe's comment about the Director's interpretation of that timeline, that only the Director has the final say on that. I think that it's interpretable, given Mr. Torigoe's earlier comment that he didn't want to go into. So just to make that clear, in my mind, that's an interpretation right now, and it's not very clear. WATANABE: Okay. May I GRAHAM: Commissioner Alameda, that's regard to the rezoning, I believe, not to the SMA permit. So it's really not on point with this particular motion. ALAMEDA: I' 11 hold that thought then. GRAHAM: Good, thanks. DARROW: Mr. Chairman? GRAHAM: Yes, Mr. Darrow. 23 DARROW: Thank you. If I can just get some clarifications, these matters before us involve five different actions, and if I can make sure that I'm on the same page with the Commissioners. With Commissioner Siracusa's motion, is that exclusive of only 2.b? I'm sorry, for the first motion I need to get clarification. GRAHAM: Mr. Darrow, the first motion failed for lack of asecond DARROW: Correct, but I GRAHAM: So we are with Commissioner Watanabe's motion now. DARROW: All right. On the second motion, is that specific to 2.b. on the agenda? WATANABE: Excuse me. DARROW: This would be the applicant, Kohala LLC, continued hearing for an amendment to Condition 4 of SMA Use Permit 379. Or is this inclusive of the Planning Director's WATANABE: Here, you know, we may need some clarification here because we also have l.c. which references to the SMA portion. As I understood it, the Planning Director consented to the SMA extending beyond the 60 days, so I'm assuming that we were referring to No. l.c. and No. 2.b. both of which reference the SMA permit and none of which references the zoning. DARROW: Thank you. GRAHAM: Thank you. Is that your understanding also, Commissioner Domingo, when you seconded? DOMINGO: I, you know, I can say yes or no, but I think what we all in general would want is more time to consider all the facts and evidence that certainly I see forthcoming. GRAHAM: Do I need to get another second on Commissioner Watanabe's revised motion, or does your second hold okay with his explanation? DOMINGO: Okay, I'll go with it. GRAHAM: Okay, thank you. So we'll go forward with that motion. I'm also in need of a break pretty soon here for the restrooms. I don't know at what point I'm going to say, we're not going to be through here anytime soon. Why don't we take a break right now? Can we do that? WATANABE: Why don't we take a vote? SIRACUSA: We have a motion on the table. GRAHAM: Are we ready for a vote on this one? 24 WATANABE: Or do we need further discussion? GRAHAM: That's the issue. Is there further discussion? Is there further discussion on Commissioner Watanabe's motion to bring up Item l.c. and Item 2.b. in our March meeting, to defer until that time? Is there any further discussion? Good. Thank you. And Mr. Darrow? DARROW: Thank you, Mr. Chairman. I'm sorry I have to again ask for just a brief clarification. My understanding is that this motion is to continue this, both these Special Management Area Use Permit actions till January 1 1, 2008, with WATANABE: No, no. March 20th DARROW: Oh, I'm sorry, March 20th WATANABE: The January 1 lth motion failed DARROW: Correct. Okay. WATANABE: Because no second. DARROW: To the March 20, 2008, with the schedule given by the applicant. My understanding is that the schedule is that Kohala LLC will submit proposed Findings of Fact, Conclusions of Law, Decision and Order by February 8th _ WATANABE: That's correct. DARROW: And that there will be WATANABE: Twenty-one day additional period. DARROW: The 21 days will allow the Planning Department to submittal a rebuttal to the proposed Findings of Fact submitted by the applicant. Is that correct? G I believe that's correct. WATANABE: Yeah, that's correct. DARROW: Okay. And then on March 7th it will allow comments and rebuttals for both the Planning Department and the applicant, and then the hearing will be for March 20, 2008. WATANABE: That's correct. GRAHAM: Mr. Yuen? YUEN: I need to see, was there a date for the Planning Department to submit proposed Findings, if it so desires? I believe there was a stipulation that it was not necessary, but 25 we should have a date for the, deadline for the Planning Department to submit proposed Findings. And I' d let Mr. Lim suggest one. GRAHAM: Well, all right, Mr. Lim, maybe you can clarify for us where we stand. LIM: Yes. We had intended that the February 29th date be for the Planning Director's legal memoranda and any proposed Findings that he wishes to submit. YUEN: The same date as the applicant? LIM: No, no. We would be submitting ours on February 8th, you would submit yours on February 29th YCJEN: That's fine, that's fine, yes. GRAHAM: All right, fine. I think our Go ahead, Mr. Darrow. DARROW: So we are okay with that. Okay, I won't reword that; I'll just go ahead into the motion. The motion before us is to continue this matter. If I could, with that I'll take the vote. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Alameda? AL~DA: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: And Mr. Chairman? 26 G Aye. DARROW: The motion passes to continue both the Kohala LLC amendment and the Planning Director's initiated revocation of SMA Use Permit 379 to March 20, 2008. Thank you. GRAHAM: All right, thank you. So our next item would be the rezoning ordinance, and what we're going to do with them as far as continuations or whatever. So let's take afive- minuterecess now, then we'll go right to that. RECESSED The Chair called a recess at 10:43 a.m. RECONVENED The meeting reconvened at 10:56 a.m. GRAHAM: Will the Planning Commission come back to order, please. Also, I want to indicate that we are scheduled to do our 12 noon lunch today, so we'll time ourselves for that. So the item before us now, the items are those on these two applications: one initiated by the Planning Director, one initiated by Kohala LLC, as they relate to change of zone ordinance. And we've already heard from the applicant that he would like his change of zone ordinance to mirror the same timetable as the SMA ordinance, as the SMA permit that we will be hearing in March as we've just decided. And the Planning Director has indicated that as far as his rezoning, initiated ordinance, he would be willing to extend the date from today until our January meeting, but he would really not be wanting to extend beyond that. And my presumption would be that if in fact we were not willing, we didn't want to hear his motion today and we didn't want to hear his application on January 11 th, we wanted to extend beyond that, essentially that the time clock would run out on that, so it would go up to the Council with this sort of default negative recommendation. So that's my kind of read of the lay of the land. WATANABE: Yeah, Mr. Chair? GRAHAM: Commissioner Watanabe? WATANABE: I would like to make a motion that the Planning Director initiated change of zone No. l.a. and l.b. as well as the applicant initiated amendment to Condition C of Change of Zone Ordinance 97-102 that will be Agenda Item 2.a. be continued to the January 11~` meeting because it appears this body does not have the authority to extend beyond that. SIRACUSA: Second. GRAHAM: All right, seconded by Commissioner Siracusa. So Commissioner Watanabe has made a motion, and seconded by Commissioner Siracusa, to have the rezonings of both the applicant and the Planning Director come before us in January. I see Mr. Lim is at the table and would like to make a comment on that. VVe have closed the hearing, so I'd sort of ask whether the Commissioners would appreciate hearing from Mr. Lim now or not. Mr. Woodward? WOODWA.RD: Well, I would like to make a comment first. 27 GRAHAM : Okay. WOODWARD: And maybe my mike is a little too high, but These issues are so intertwined; voting on one essentially means we are voting on all five issues. And if we have agreed to defer at Mr. Lim's request to March 28th (sic) for the two issues, voting on these other three essentially means we are voting on all five atone time. And I think, out of the issue of fairness, if we send a negative recommendation to the Council on all these issues, they essentially cancel each other out; it means we don't have a recommendation. I would recommend that we defer this also until March 28th (sic) and then we discuss the whole issue because these are all five intertwined initiatives. WATANABE: I Mr. Chair? GRAHAM: Okay, yes, Commissioner Watanabe, go ahead, if you want to respond to that WATANABE: Please. GRAHAM: Then I'd also want to deal with whether we'd like to hear from Mr. Lim or not ALAMEDA: I have a comment, too, before that. WATANABE: Yes. GRAHAM: Go ahead, Commissioner Watanabe. WATANABE: I fully agree, however, I did state towards the end of my motion that the body apparently does not have the authority, and that is the only reason I'm making the motion. And I have further comments when we get into discussion on this because as I stated earlier I'm not comfortable with either choice that we have. ALAMEDA: Mr. Chair? GRAHAM: Okay, Commissioner Alameda? ALAMEDA: We are in discussion from what I understand. Correct, Mr. Chair? GRAHAM: Yeah, but I think we are in discussion at this point of time on his specific motion which is to what date do we continue the hearing on the rezonings. ALAMEDA: Again I just wanted to, I don't know when it is appropriate, but I think I need to get at least just a yes, that's correct, from our counsel, that that is indeed true that the Director does have the final say on that, and if so, then at least I can put that to rest. 'Cause I understand Mr. Torigoe may have a different interpretation on that. G : Mr. Torigoe? 28 TORIGOE: Well, with respect to, you know, you are asking at this point about the choices whether you can go beyond November 11th, and basically even if you assume that the Director has the authority to agree to an extension, if the Director does not agree to the extension, then he's basically choosing to end it at that point. And so it would at that point go, you know, if you don't make either decision by that date, then it would go up with the default negative recommen atlon. GRAHAM: Is that answer what you needed? ALAMEDA: No. GRAHAM: Okay, go ahead and be more specific. ALAMEDA: So Mr. Torigoe, then as our counsel, you agree that the Director cannot or has the authority to consent or to not consent to the January 11th deadline, and that basically that's already rest with the Director and not with the Commission? TORIGOE: Well, basically the Director has, you know, the Director has a veto power in any case at that point, you know. If we are saying that your going forward depends on the Director's agreement to go forward beyond that date and he is saying, no, I'm not agreeing to go forward beyond that date, then you can't go and do anything with the Director initiated matters beyond the date that the Director agrees to, which is January WATANABE: Mr. Chair? ALAMEDA: Okay, got you. GRAHAM: That's clear? ALAMEDA: Thank you, Mr. Chair. GRAHAM: All right, now, hold WATANABE: Mr. Chair? GRAHAM: A lot of people speaking here. Let's, first off I did ask a minute ago if the Commission would like to hear from Mr. Lim. Would the Commission like to hear from Mr. Lim at this time or not? So the hearing is closing? LIM: I just wanted to lodge an objection, and then I' 11 sit down, for the record. GRAHAM: All right, go ahead, Mr. Lim. LIM: For the record, we obj ect to the setting of the January 11th change of zone hearing separately from the SMA, and the applicant reserves all rights on the Planning Commission Rule 11-3 (c) to argue that the 60-day period for action has or will elapse by January 11, 2008. Thank you. 29 GRAHAM: All right, thank you. Commissioner Woodward? WOODWARD: Yeah, I think the question of whether or not we pass or decide on this recommendation with regard to rezoning is moot because in all, from all intents and purposes the 60 days elapsed a long time ago. And again I think out of the interest of fairness, since these are all intertwined issues, you can't decide one without deciding the other. It makes no sense to hear the rezoning request, particularly if there is a question of whether the time has already elapsed, on January 11 and then to hear the SMA permit request on March 20th. It makes much more sense to put everything back together. It may require a little bit of work from the Planning Department to reformat this and to get together with their counsel, but I think that's an interest of fairness. G Thank you. Do we have any further discussion? Commissioner Domingo has been waiting. Go ahead, Commissioner Domingo. DOMINGO: Thank you, Mr. Chairman. You know, if the statement of Mr. Woodward is correct with regard to the 60-day limit already has passed, then regardless of how we feel or even how the Planning Director feels, by law, having passed that date, it should be sent up to the Council with a negative recommendation. There're no two ways about it. It's a law; we've got to abide by the law. GRAHAM: Thank you, Commissioner Domingo. Anything further from the Commissioners? All right. So we have a motion on the table for January 11th date to hear - is it all three rezoning matters? Is that the case, Commissioner Watanabe? WATANABE: As I stated the motion, yes, it was for all three. I think for clarification purposes, maybe Mr. Torigoe could make it clear that, whether the Commission has any authority to extend. ' Cause we are keeping going back whether the Director has any authority; it's not clear within the Rules, as I read it, whether the Director has. But I think the second part of Mr. Alameda's question was whether the Commission had any authority. GRAHAM: Yes, Mr. Torigoe? TORIGOE: Reading your Rule 11-3, you know, basically I think what seems to be intent of this in general is that if anybody has the authority to extend the timeframe, it would be the applicant or possibly the Director. And if the Director, you know, basically refuses to agree to an extension, then that certainly I think would end the time; and I don't think the Commission would have the authority to go beyond that. For instance, if you did another motion that would ask for the rezoning initiated by the Director to be heard on March 20th, but the Director says, no, I don't want it to go that long, I think you are basically stuck with what the Director wants at that point. I mean you can make the motion, you can pass it, but I think basically that it ends up with the Rule saying that, you know, it goes up with the default negative. GRAHAM: Thank you. Also it occurs tome, looking ahead time-wise, that if we a rove this motion today, the one before us right now for January 1 lth date, when we come to Pp th January 11 , we are sort of asking the parties to be ready to argue and with those particular three rezoning matters. But when January 11th comes, we certainly can wind up entertaining more 30 n motions to put things off until March or something, right? I mean that's certainly part of what could happen come January 1 lth. Any further WATANABE: I, I wish we could handle this GRAHAM: Commissioner Watanabe, go ahead. WATANABE: I'm sorry. I wish we could handle this all at once, but we don't have that choice or at least that's my understanding of the Rules. To be LIM: To the extent that GRAHAM: Mr. Lim, please, would you LIM: I'm sorry. WATANABE: To be perfectly honest with you, I stated my position that I'm not in favor of either extreme to be, I would, however, be inclined to vote for an extension of the time and go with the RS-15 when this vote comes up on January 1 lth, even though I think it's much higher density than the area should have, because to me that's a preferable choice than to take away - what is that, it can get come down to 6, that would be - 44 units. And that's why I don't particularly like the choices that I have. I was hoping that we ,could arrive at, you know, the parties could arrive at some kind of compromise, but it doesn't seem like it's going to go that way. And so GRAHAM: Okay, thank you. Any other comments by the Commissioners on the motion? All right, Jeff, we have a motion before us for January 11th, continuance to January 11th, on the rezoning matters, which would be, I believe, l.a. and l.b. and 2.a. on our agenda. DARROW: Thank you, Mr. Chairman. If it's okay with you, I'll take one vote for all three matters. GRAHAM: Is that all right, Mr. Watanabe? WATANABE: I'm fine with that; I did state the motion that way. SIRACUSA: That's the way the motion was made. GRAHAM: Thank you. DARROW: Thank you. With that, I'll take the vote. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Siracusa? SIRACUSA: Aye. 31 DARROW: Commissioner Alameda? ALAMEDA: Nay. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: Commissioner Woodward? WOODWARD: No. DARROW: And Mr. Chairman? GRAHAM: Aye. DARROW: The motion passes, six to two. GRAHAM: All right, thank you. So I believe we are finished with Items 1 and 2 today; that on the SMA aspects we are going to have our March meeting, and we are going to follow the schedule suggested by Mr. Lim as far as the legal documents and their schedule, they will be prepared because we will be taping final actions on the SMA. As far a~s the rezonings, we axe only doing recommendations to the Council and they will both come before us at our January meeting. So Mr. Torigoe, have we exhausted all issues on these two agenda items, as far as you understand? TORIGOE: I think so. Basically you've continued everything. Unless the parties have some other issues that they think should be raised. GRAHAM: Correct. Mr. Lim, is there any further that we should raise today that comes to your mind? LIM: We'll be submitting legal memoranda on the change of zone prior to the January 11 th hearing. Thank you. GRAHAM: Thank you. Mr. Yuen, anything further? YUEN: No. GRAHAM: Thank you. 32 The discussion ended at 11:11 a.m. Respectfully submitted, /s/ Noriko~Sauer Noriko Sauer West Hawaii Secretary 33 1 PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT AUGUST 31, 2007 A regularly advertised hearing on the applications of Initiator PLANNING DIRECTOR and Applicant KOHALA LLC (REZ 866/SMA 379) was called to order at 12 noon at the King Kamehameha's Kona Beach Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii, with Chairman William Graham presiding. PRESENT: William Graham ABSENT & EXCUSED: Takashi Domingo C. Kimo Alameda Shelly Ogata Andrew Iwashita Rene' Siracusa Alvin Rho Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Christopher Yuen, Planning Director And 4 people from the public in attendance. INITIATOR: PLANNING DIRECTOR a. Change of Zone (REZ 07-000067} for 37.88 acres of land from aSingle-Family Residentia115,000-square foot (RS-15) to a Residential and Agricultural 5-acre (R.A-5a) district. b. Repeal of Ordinance No. 97102 which rezoned 37.88 acres of land from an Agricultural 5-acre (A-Sa) to aSingle-Family Residential 15,000-square foot (RS-15) district. c. Revocation of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1St, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (REZ 8661SMA 379) a. Amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-Sa) to aSingle-Family Residentia115,000-square foot (RS-15}district. b. Amendment to Condition 4 (time to secure final subdivision approval) Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1St, North Kohala, Hawaii, TMK: 5-9-1:8. 1 GRAHAM: Our next item of business which I believe in the last Commission hearing when I was not here involved both Items 4 and 5, Unfinished Business. Four is initiated by the Planning Director. Five is by Applicant Kohala LLC. It relates to a Change of Zone and a Special Management Area Permit; and this is in the, just below the Kohala Ranch Subdivision in Kahua 1, North Kohala. And I think the Planning Department is going to put up some maps at this time and we'll just wait a few minutes till they're ready to go. Basically the Applicant Kohala LLC is asking for an amendment to a Change of Zone Ordinance as well as to an SMA Permit. And the amendments would allow additional time to meet the requirements. The Planning Director's initiation is to change the zone on that land, and also to repeal a Special Management Area Use Permit, and repeal the ordinance which originally set the zoning on that land. DARROW: We're ready to go? GRAHAM: Jeff, go ahead. DARROW: Thank you. I'll just make this brief. I'll just do a brief presentation. The location of this application is within the North Kohala District of Hawaii, more specifically we're looking near Kawaihae area. This would be Kawaihae in this area. Just for reference, this is the Kohala Ranch Subdivision area. The white line running in a north-south direction on the bottom of the map is the Akoni Pule Highway. And the area of the application is identified with a blue dot. There are two applications that we are combining together. These have to do with Change of Zone 97102, which is a Rezone 866, and Special Management Area Use Permit No. 3 79. The Planning Director is recommending that Special Management Area Use Permit No. 379 be revoked. It was originally approved to allow a 50-lot subdivision on this property. Additionally, the Planning Director is initiating downzoning of the property from Single Family Residential 15,000 square feet to Residential-Agricultural 5 acres; and this is for approximately 3 8 acres of this area. Originally the property was rezoned from Agricultural 5 acres to Single Family Residential 15,000 square feet and, again, allowed The Special Management Area Use Permit was approved to allow a 50-lot subdivision. The applicant, apparently the property was sold in between this time. The applicant, nobody had requested a time extension for the Change of Zone as well as for the SMA Permit, and so ten years after-the-fact of the original approvals there is a request now for a time extension to Condition C of the Change of Zone as well as to Condition 4 of the SMA Use Permit. At our last hearing the parties involved had gone into deliberations regarding this matter and there has been a letter submitted by the applicant dated August 7th requesting a continuance of this hearing until the October meeting in Kona, because of the fact that he is requesting for certain Planning Department records to subpoena. It is my understanding today that we do have somebody signed up to testify, but there has been a request from the applicant to continue both these matters until our October meeting. 2 _ _ _ GRAHAM: Thank you, Jeff. Any questions of Jeff from the Commissioners? Maybe we can take our public testimony right now then. Ms. Byrne, would you come forward. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? BYRNE: I do. GRAHAM: Thank you. And go ahead with your testimony and start with your name and address, please. BYRNE: Sure. My name is Gail Byrne, address is 68-3551 Awamoa Place, Waikoloa, Kohala; and I'm here delivering testimony from five North Kohala non-profits and the organizations and together our membership represents about 400 families in North Kohala. And we're hereto support the Planning Director's recommendation to repeal the Ordinance 97 102 and revoke the Special Management Area Permit No. 379. We are also urging the Planning Commission and the Planning Director to consider the more restrictive zoning which would be consistent with what the community has asked for for over 30 years. And I have copies of a letter signed from the five organizations here enough for each I don't know how we, what's the appropriate way to deliver this? It's kind of summarizing some of the points I wanted to hit today. I think there's nine in there. And then there's a second batch here. This summarizes, the second batch summarizes the 30 years worth of, documented work that the community has done to preserve the area makai of Akoni Pule Highway in open space and their continuing desire to do so. So, again, we're here to affirm and support the Planning Director's recommendations and ask for zoning in that area of at least RA 20 if it's possible. Again, it's consistent with what the community has asked for for 30 years in previous General Plan reviews and planning documents, multiple resolutions. During the last General Plan review petitions were submitted to the County requesting the County to zone this area Open. And some of this stuff I have in the box. I was going to thump down, about 2,000 signatures asking for this area to be in Open or Conservation. There's another 6,000 signatures here that requested the County to put a building moratorium on this area or the whole coast makai of Akoni Pule Highway, including this parcel. So there's a long history of community support planning documents for more restrictive zoning. And you guys are aware that this year the County Council passed a rezoning moratorium for North Kohala that specifically states there will be no rezoning into districts smaller than Ag-20a. I understand that might not be quite applicable to this particular situation; but that moratorium is different than the moratorium that was developed for Kona or South Kohala, and specifically with regard to the wording around Ag 20-a because it reflects the community's conversations with their Council Member for better protections specifically along the coast. Some of you may be aware that recent water quality surveys, and some of them hit the front page of a paper just a few weeks ago showing that the reefs in this area or the marine environment being heavily impacted already by upslope development. And additional development of any kind only contribute to this problem, especially because development on this parcel borders the ocean. My background is in civil engineering and I spent eight years working on development 3 I' land use issues and best management practices around development and looking at what we could do to mitigate these kinds of effects. And I'm here to tell you in my professional experience you can't over time. There are cumulative impacts. And the Water Quality Study completed in 2006 by professors at the University of Hawaii Hilo strongly criticized the degradation of water quality occurring along the Kohala Coast as a result of increased development. There's also spotty data in there. You know, we mentioned in our testimony that, you know, under the Clean Water Act the County has an obligation to ensure that any pollution resulting from development is not overwhelming the environment's ability to assimilate that pollution. And if that's not done, the County and the State will be held accountable; and usually you have to go back and go through a much more expensive process of retrofitting and trying to fix a problem which is almost always very difficult or impossible to do. So we have an opportunity right here now to act proactively and prevent a lot of costly clean-up. And we've already got a problem. It's right here. We've seen it in t e papers. I think specifically with respect to the criteria that you guys have to look at on whether you can grant these time extensions, my understanding is that the applicant does not meet the criteria for a time extension. You know it's not, this proj ect is not at all consistent with the General Plans that have been developed; and it's certainly not consistent with the outputs of the North Kohala Community Development Process. It's on-going right now. It's part of the General Plan. The highest, over and over what that community ha.s voiced is keep those areas open to the extent possible from any development. You know, there has been plenty of time to ask for an extension. It has been expired for five years, is my understanding. And, you know, the original conditions and contexts have changed under which this original permit was granted. We are now seeing the cumulative effects of development around here. We now understand better some of these impacts. And so the conditions and context in which the original permit were granted have changed. So I don't think the applicant meets the criteria for a time extension in any regard. So that was the testimony provided by the groups. I just want to say a few personal roads, words. I've a Masters Degree in Civil Engineering and so I love concrete in certain types of developments, I really do. And I actually invest in some real estate but not in sensitive areas. And I also know there are no guarantees in any kind of investment; and I don't expect the taxpayers to bail me out when I make a bad decision or I don't follow-through when I need to. So that's just my, that's my own personal testimony there. So, again, you know, the folks in North Kohala really appreciate what the Planning Director is recommending here and thank the Planning Commission for your time. GRAHAM; Thank you, Ms. Byrne. Do we have some questions from any of the Commissioners? In regard to what you said, I might ask Mr. Yuen if we do take this matter up at a future hearing -apparently the State and perhaps the Federal government also has been really studying this whole sedimentation area from Honokua Gulch going north along the coastline - Couldyou at the Planning Department look to see if there's any reports on what's going on there, 4 t and what has caused it, and, you know, what's recommended so that we could have that as part of our folder for dealing with this application at the next hearing if we do? YUEN: We can certainly try, we' 11 get you what's available. GRAHAM: Thank you. YtJEN: There were some, there were a couple initial investigations and then there has been some follow-up that's not actually, I think, in the form of a report. I did attend the meeting and have had .some discussions with people about the maj or runoff incident earlier this year. GRAHAM:. Thank you. Thank you, Ms. Byrne. Would the applicant come forward at this time. Mr. Lim, do you swear or affirm to tell the truth on this matter today before the Hawaii County Planning Commission? LIM: I do. GRAHAM: Thank you. And could you give your name and address and then carry forward with your testimony. LIM: Steven Lim representing Kohala, LLC, PO Box 121, Hilo, 96721. Mr. Chairman and Members of the Commission, we had half a hearing the last time. We've, I think, requested some additional time to both get some of the documentation that we had subpoenaed from the Planning Department and also to engage in further discussions with the Planning Department on this matter. And as a result of that, I think we've submitted a stipulation to continue the August 31, 2007, hearing. We last sent it to the Corporation Counsel's office and I'm assuming it was forwarded here. G Jeff? DARROW: The continuance letter ti11October, correct? LIM: Right, right. We had executed a stipulation to continue to the Planning Commission's meeting in West Hawaii on October 19, 2007, subject to continuance to a later date in West Hawaii by agreement of the parties and approval by the Planning Commission. So that's what the last thing that we sent into the County, yesterday, I believe it was. G Thank you, Mr. Lim. So your request at this time is that Planning Commission continue this matter? LIM: That's correct. GRAHAM: To the October hearing? LIM: That is correct. GRAHAM: All right. Commissioner Watanabe? 5 i WATANABE: I' 11 move to continue to the October 19th meeting of 2007. GRAHAM: Is there a second? ALAMEDA: Second. GRAHAM: All right. Seconded by Commissioner Alameda. Mr. Yuen, since the Planning Director is involved in Item No. 4, I guess, on this one, are we looking to continue both of these items or I imagine Mr. Lim only speaks for the Kohala LLC application. Y[JEN: They should be dealt with at the same time. So we agree. It's not a big rush. There's nothing happening on the property, so we agree that both Numbers 4 and 5 should be continued to October. GRAHAM: Thank you. And, Mr. Torigoe, are there any legal considerations we should be aware of? TORIGOE: No. Basically the deadlines will not start running until, as long as there's an agreement the deadlines will be okay, I think. GRAHAM: Thank you. Any questions, any further questions of Mr. Lim or any comment by the Commissioners? We do have a motion right now before us. IWASHITA: I j ust GRAHAM: Yes, Commissioner Iwashita. IWASHITA: We're treating this as a contested case kind of scenario? GRAHAM: I don't think it's specific that we're treating it. This is whenever there's a decision by this body I think the legal ramifications are such that it is as if it were a contested case Baring. IWASHITA: So, I'm just concerned that we meet all the procedural requirements, - sincewe're not hearing it all at once and the Commissioners present might be different, you know, in October than present today - whether or not we need to address any procedural requirements. GRAHAM: So would you like me to query Mr. Torigoe, I guess, of any further IWASHITA: Yes. G ; Any further procedural considerations? TORIGOE: I believe that after the last hearing between Mr. Lim and the Director we had an agreement that, and I assume that the question is really aimed primarily at HRS 91-11 matters about having a proposal for a decision in front of the Commissioners before the decision 6 is made. I think there was an understanding that the, let's see, the Planning Director had submitted his recommendations and that would be sufficient --but correct me if I'm wrong, I think if you can just straighten that out and that there would not be a requirement of further filings beyond those which we've already talked about, that is that the parties will be filing findings of fact and conclusions of law and being able to respond. So, and I think there's a stipulation regarding submittal of those findings and conclusions that was submitted and it was dated, looks like, received August 16th in the Planning Department. G Okay. All right. Mr. Lim, are you in conformance with all what you hear? LIM: That's correct. We submitted a stipulation regarding submittal of proposed findings of fact, conclusions of law and decision and order which was signed by the attorney for the Planning Director on August 15th and by myself on August, I think it's l Oth or 16th, I can't tell which one. But basically that conforms with what Mr. Torigoe has represented in that the Chapter 91-11. Section 91-11 proposed findings would be, we would consider the Planning Director's background and recommendation as being the Planning Director's proposed decision. And then we would have an extension of the deadline within which to submit any other findings of fact which would probably be primarily the applicant's from August 17, 2007 to not later than 20 calendar days prior to the final action by the Planning Commission on this matter. And that's all laid out in the stipulation. GRAHAM: Okay. Thank you, Mr. Lim. IWASHITA: Mr. Chair? GRAHAM: Yes, Commissioner Iwashita? IWASHITA: Just thinking about it, the way the deadline is worded I guess I'm a little concerned is, how we're doing ahead of time when the final action by this body is going to be and if we use that, you know, to measure the time back LIM: Typically what we're expecting was, you know, we don't know how long the hearing is going to last in between the final action. And I think that we were trying to estimate out that it usually takes the Planning Staff, they usually start setting up the agenda at least 30 days ahead of time, so we would know what the date would be. IWASHITA: Oh, so we're continuing this to October 17th. Does that now mean that the, I believe that's the date, so it's September 27th or something like that? Is that LIM: Well, we're expecting that we're going to have some discussions with the Planning Director on this matter. So it may be that it gets continued further; and that's why the stipulation has that additional, you know, continuance. GRAHAM: Just to try to beclear onthis - then if I'm hearing right then we're sort of assuming at this point that when you refer to the final decision tentatively we're talking about the October meeting but that we're not cementing it to that at this point because there will be further discussions between you and the Planning Director, is that correct? 7 LIM: That is correct. GRAHAM: Thank you. IWASHITA: So for the moment it is the 27th or 20 days before the 17th. That's, okay. GRAHAM: Okay? So if we're all clear, I think we could have Jeff take the vote on our motion before us, which is to continue the hearing. And this is Items 4 and 5, Jeff? DARROW: This is Items 4 and 5. What I'll be doing, we actually have five voting sheets for this. So if it's okay if we can do one vote, and I'll do all the votes on all five of them. We have two for the SMA, we have one for the Planning Director's initiated rezoning and two for the rezoning. GRAHAM: Okay. So my understanding is both the applicant and the Planning Director are supportive of this continuation and that Jeff plans to take five votes for one. If there's any Commissioner who would prefer otherwise, would you please indicate so at this time. All right. Thank you, Jeff, go ahead. DARROW: Sorry to, I need to get the Commissioners who WATANABE: Yeah, I'll take it as a friendly amendment for the five. DARROW: Okay. And also the Commissioner who seconded the GRAHAM: Yes. Commissioner Alameda, are you, I believe you seconded ALAMEDA: Yes to your request. GRAHAM: Yes. DARROW: Okay. Thank you. Okay, with that I'll take the roll. The motion before us is to continue both Agenda Items 4 and S until our October 19th Kona meeting. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Rho? 8 r RHO: Aye. DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: And Mr. Chairman? GRAHAM: Aye. DARROW: The motion passes six to zero. GRAHAM: All right. Thank you, Mr. Lim. LIM: Thank you very much. The discussion ended at 12:22 p.m. Respectfully submitted, /s/ Sharon M. Nomura Sharon M. Nomura, East Hawaii Secretary ATTEST: /s/ Noriko Sauer Noriko Sauer, West Hawaii Secretary 9 r PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT J[TLY 20, 2007 A regularly advertised hearing on the applications of Initiator PLANNING DIRECTOR and Applicant KOHALA LLC (REZ 866/SMA 379) was called to order at 9:35 a.m. at the Waikoloa Beach Marriott, Naupaka III, 69-275 Waikoloa Drive, Waikoloa, Hawaii, with First-Vice Chairman C. Kimo Alameda presiding. PRESENT: C. Kimo Alameda ABSENT & EXCUSED: William Graham Takashi Domingo Alvin Rho Andrew Iwashita Rodney Watanabe Shelly Ogata Rene' Siracusa Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Brooks Bancroft, Deputy Corporation Counsel Chris Yuen, Planning Director Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 15 people from the public in attendance. INITIATOR: PLANNING DIRECTOR a. Change of Zone (REZ 07-000067) for 37.88 acres of land from aSingle-Family Residentia115,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-Sa) district. b. Repeal of Ordinance No. 97-102 which rezoned 37.88 acres of land from an Agricultural 5-acre (A-Sa) to aSingle-Family Residential 15,000-square foot (RS-15) district. c. Revocation of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1St, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (REZ 866/SMA 379} a. Amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-Sa) to aSingle-Family Residential 15,000-square foot (RS-15) district. b. Amendment to Condition 4 {time to secure final subdivision approval) Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1St, North Kohala, Hawaii, TMK: 5-9-1:8. 1 ALAMEDA: All right, Fellow Commissioners, we're at Agenda Item 2 and potentially 3. According to Corp. Counsel we have an opportunity to combine Agenda Items 2 and 3 because they're contingent. And I' d like to turn it over to Mr. Darrow for his explanation of why we could combine 2 and 3. Jeff? DARROW: Thank you, Mr. Chairman. The Agenda Item Nos. 2 and 3 are related to each other. Agenda Item No. 3 is a time extension request from Kohala LLC requesting a 5-year time extension to Condition C of Rezone 97-102 and also Condition 4 of Special Management Area Use Permit No. 379. And basically these are both the same conditions, just in two different permits, that they be able to secure final subdivision approval. The Agenda Item No. 2 is initiated by the Planning Director to change the zoning of this property, as well as to revoke Special Management Area Use Permit 379. Before I get into too much detail, I'd like to just give a brief presentation of the location of these applications. These applications are occurring in the North Kohala District of Hawaii, more specifically we're looking at the Akoni Pule Highway running in anorth/south direction. Kawaihae would be located in approximately this area. Hawi would be located in this area. We have Kohala Ranch Subdivision and other agricultural subdivisions in this particular area. And the area that we're looking at for these applications is identified with a blue dot. The zoning of this property at this time is Single-Family Residential 15,000 square feet. Around this particular property we have Agricultural 5 acres identified with light green. The darker green is Agricultural 20 acres. The light blue is Agricultural 3 acres; and the darker blue is Agricultural 40 acres. We also have an axea that has come in previously for a Change of Zone to Multiple-Family 4,000 square feet, as well as received a Special Management Area Use Permit. Additionally, we've had a Special Management Area Use Permit on the properties just to the south which had come in for a subdivision to break up these parcels into 5-acre lots. And then there's one bulk lot remaining. The applicant in this case, again, we have two applicants, but Kohala LLC who owns the property at this time is requesting a time extension to Condition C of Change of Zone Ordinance No. ~97-102 and Condition 4 of Special Management Area Use Permit 379. These permits were approved in 1997. They were approved on different dates. July 14,1997 is the effective date for the Change of Zone Ordinance and August 8,1997 is the effective date for the Special Management Area Use Permit. Both of these have similar conditions stating that the applicant needs to secure final subdivision approval within 5 years from the effective date of those permits. The previous owner and the current owner up to this point had not submitted a subdivision plan as well as a request for a time extension on these conditions. Usually what happens is if the applicant is not able to meet these conditions within the time allotted then they request an administrative time extension which is allowed through the conditions of these permits. The applicant and the previous owner in this particular case did not do this. So it's the Planning Director's position that once this is not done then in all actuality these permits are no longer valid. The applicant recently, almost ten years after the fact, has come in and is requesting a time extension for these two conditions. Just to go into detail briefly about the Planning Director's initiative, the Planning Director is initiating a change of zone to be able to change this property from its currently zoned Single Family Residentia15,000 square feet to Residential and Agricultural 5 acres or R.A-S a. And, again, the main reason for this is spelled out in the recommendation where there have been two Senate Concurrent Bills, I believe,146 and 179 that have requested and urged retention of these 2 areas for viewplanes and open space, and more recently, for historic sites and traditional purposes. The other reasoning is that it complies with the natural beauty element of the General Plan and, lastly, that it's the position of the community to be able to preserve the coastline in this particular area of North Kohala. Additionally, the Planning Director is initiating revocation of Special Management Area Use Permit 379 which originally was approved to allow a 50-lor subdivision and related uses. So the Planning Director is asking that that be revoked. If the Planning Director's initiative passes and this particular property is rezoned to RA-Sa then in the future when an applicant does come forward to be able to subdivide this property, at that time they will be required to come before the Planning Commission for a Special Management Area Use Permit, and therefore place further controls on the property regarding public access and special management area guidelines. The Planning Director is recommending that the time extension for both the Change of Zone Ordinance and the Special Management Area Use Permit be denied, and that he is requesting that his initiatives for the Change of Zone and the revocation for the Special Management Area Use Permit be approved and receive a favorable recommendation. ALAMEDA: Thank you, Mr. Darrow. DARROW: Just one, one quick note. ALAMEDA: Sure, go ahead. DARROVV: Because we're dealing with a change of zone request a,s well as a special management area, we have two, the change of zone obviously will receive a recommendation from the Commission and then go to the Council. The Special Management Area Use Permit will be final with the Commission. So that's something to keep in mind. Thank you. ALAMEDA: Thank you. Commissioner Siracusa, questions for Mr. Darrow? SIRACUSA: Yes, I have two procedural questions. ALAMEDA: Go ahead. SIRACUSA: I just want to clarify that if, well, first of all, are we going to take these matters up in the order, and accept the motions in the order in which they're presented on the agenda, which starts out with the Planning Director initiated ones? That's No. 1. And No. 2 is if we pass the Planning Director's proposals then we don't have to go on and do any motions on the applicant's proposals because they will be automatically moot? Is that, or do we have to go through the process anyway? ALAMEDA: Let's a.sk Mr. Torigoe. No. 1, do we have to take it up in this order; and No. 2 if we take up the first one do we have to take up the second? TORIGOE: Thank you, Mr. Chair. I've actually talked with Mr. Lim who represents the applicant and the Planning Director; and because as Mr. Darrow noted these two agenda items are basically two opposing sides of the same factual coin, it makes sense to consolidate 3 them for your discussion and action. And so that would be the first procedural issue that I would recommend, is that you confirm with the parties that they'll agree to consolidate these for action; and then you go ahead and take that action. After you've consolidated, assuming you consolidate these two issues, then it becomes really up to you how you would want to handle it. I would think that at some point you would want to entertain a motion that would, well, you could possibly entertain a motion that would deal with everything in one motion, if it fits that way. ALAMEDA: Follow-up, Commissioner Siracusa? SIRACUSA: Follow-up questions, yeah. I don't see how we could do one motion if one motion would be at the very least on the Change of Zone and the other would be on an SMA. It would seem that at the very least we would have to do two separate motions TORIGOE: Right. SIRACUSA: To keep it from getting too convoluted. TORIGOE I think you're right. That would probably be the better way to do it. And, also, think about the relationship between the Rezoning and the SMA Permit. Basically, the SMA Permit ought to be consistent with whatever the rezoning is. ALAMEDA: That sounds good. Commissioner Siracusa, I think you've got it right. Commissioner Domingo? DOMINGO: Just from Jeff, you know, in the event that we revoke the Change of Zone Ordinance and the SMA Permit, then in the future should the owner decide to come in and develop that, then they would have to go through another rezoning procedure and an application for an SMA Permit? DARROW: If the applicants choose to develop it as it is now, a 50-lot subdivision, if the Planning Director's initiative passes, then the property will bezoned RA-5 acres. So they could do, you know, a development on 5-acre lots. But, again, it would require the development to come before the Planning Commission through the subdivision of the lots for the Special Management Area Use Permit. DOMINGO: I just want to clarify that in my mind because I kind of heard you say once it's revoked then they would have to come in for any application, for another SMA Permit; and if I heard correctly I didn't hear you saying that they need to come in for another rezoning application. DARROW: Yeah, the Special Management Area Permit that they would need to come in for would be for the subdivision ofthe S-acre lots, cause right now the property is approximately 38 acres. So they'd still need to go through the subdivision, which would trigger the requirement of a Special Management Area Use Permit. Thank you. 4 ALAMEDA: Thank you, Commissioner Domingo. Do we have any questions before I ask the applicant up? Okay, please raise your right hand. Do you swear or affirm to tell the truth now before the Hawaii County Planning Commission? LIM: I do. ALAMEDA: Thank you. Could you please state your name and address for the record. LIM: I'm Steven Lim from Carlsmith representing the applicant, Kohala LLC, at 121 Post Office Box, Hilo 96721. ALAMEDA: Okay, thank you, Mr. Lim. What do you think about our discussion so far or what would you like to share with us. LIM: I think that the Agenda Items 2 and 3 should be discussed together, as Corporation Counsel has indicated those are flipsides of the same coin. I think you have to take separate actions. So we'll stipulate to discuss both and incorporate the records for both agenda items into one proceeding. ALAMEDA: Okay. Is there anything else you'd like to add for our benefit? LIM: I have a full presentation, of course. But for procedural purposes that I think should handle it. ALAMEDA: Okay. Mr. Torigoe? TORIGOE: Thank you, Mr. Chairman. Just to clarify, a~s Mr. Darrow noted the rezoning is a recommendation matter that you would send to the Planning Committee, the SMA Use Permit decision is a final decision of yours and it's technically a contested case. And so I just wanted to get clear on the record that, Mr. Lim, you know, as the SMA matter is a contested case matter you would have the right to call witnesses or, you know, do all thekind oftrial-like things that you might want to do if there was an intervenor present. If we're going to consolidate this and have a more informal discussion, are you okay with that? LIM: I think I would like to have whatever proceedings occur, whatever exhibits are introduced to be part of the SMA Chapter 91 type of a hearing, even though it's technically mixed in with the rezoning. If we have to appeal, I have to appeal on the record that is represented before the Planning Commission on the SMA Permit. So I want to make sure that everything that we do today and in subsequent hearings would be included on the Chapter 91 SMA hearing. TORIGOE: Okay. So, I guess, Mr. Chairman, as we go we should just make sure that Mr. Lim has the opportunity to introduce his exhibits and you'd want to, as we go also check and see if there are any other procedural matters that he would like to have done as a matter of a contested case before we wrap up. ALAMEDA: Thank you. Mr. Torigoe, if it's going to go along those lines, should the parties, the Department and all, be at the front or 5 TORIGOE: Well, we can, you know, I guess we can see if the parties Mr. Lim, would you request that the Planning Director basically take a seat as a party for these proceedings at the counsel table or are you okay with him seating where he is now? LIM: I'm okay with him seating where he is now. I understand in SMA proceedings that he would be a party. ALAMEDA: Okay. All right. Seeing no further questions for our Corp. Counsel, Mr. Lim, go ahead. LIM: Thank you very much, Mr. Chairman and Members of the Commission. I think what I'd like to stress the most is the issue of fairness on this proceeding. For those of you Can you turn it (microphone) up a little bit louder maybe? Thank you. Okay. (Testing microphones). I'll just try to speak louder, I'll try. Okay, so going back to the fairness issue, as I think those of you on the Commission, probably half of ou have been on for some years now, half of you have just recently been appointed. But Y for those who have been on for some years now, I think you probably understand that this is the very first and the only Planning Director initiated down zoning of a private property without any consent from the fee owner. I want you to understand that very clearly because I've been doing this, at least with Mr. Yuen, for about 8 years now or nearly 8 years. I am only aware of two instances in which the Planning Director initiated a down zoning; and those were both voluntarily agreed to by the applicant. One of them was in approximately 2006, that was an application by the Matsuda family for approximately 1.95 acres in Waiakea in Hilo. He took his previously zoned RS-10 property, Single-Family Residential, back down to Agricultural 3 acres because he was not going to pursue subdivision or development of his property. It doesn't say in the Planning Department's records but I'm assuming he ran into some difficulty with respect to developing his farm dwelling on the lot and had to pay the fair share fees and all the other things that come along with the rezoning. So that was revoked and reversed, the zoning was reversed back down to Ag-3. More recently, some of you probably worked on the 2007 request by the Planning Director to down zone the puu up above Waimea town. That was property that was owned by the State Department of Land and Natural Resources; and also in that case the State Director at the time, Peter Young, consented in writing to the down designation. That was from Ag-la to Agricultura1400 acres for the area of the puu. Soother than those two, I am not aware, and I've been doing this in the County of Hawaii for about 20 years now, I am unaware of any other Planning Director initiated down zoning of a private property without consent by the property owner. So that's why I'm saying we're raising the fairness issue. Going to the reasons for the Director's recommendation to down zone the property, essentially what he's saying is that we haven't gotten the final subdivision approval in the 10 years since the rezoning was adopted and the SMA was approved in approximately 1997; and that is correct. The developer and owner ~ has changed over the years. I' 11 give you a short rundown on that. But that is part of the reason why there was no action. The other big reason why there was no action is that the property has significant archaeological sites and burial sites on it. And it was only until May of 2006 that we got the final approval of the archaeological inventory work from the State Historic Preservation Division. So I'm going to pass out exhibits that detail some of the burial treatment work and the latest May 19, 2006 SHPD approval letter. What I'm passing out 6 f to Jeff is a May 19, 2006 SHPD letter to Paul Rosendahl, April 28, 2006 SHPD letter to Paul Rosendahl, May 8, 2005 PHRI letter to SHPD, May 3, 2005 PHRI letter to SHPD. And to give some context in terms of the general area, this is property that is located just immediately makai of the Kohala Ranch project. We believe it is consistent with the General Plan and the Special Management Area Regulations in the area. In fact, when the project first came through the Planning Commission and the Planning Department, the County of Hawaii Planning Department's recommendations stated the development will not have any significant adverse environmental or ecological effect. They also stated in that recommendation and report that "Although there will be a diminution of open space and alteration of the existing coastal viewplane the project as proposed would have no adverse impact to recreational and visual resources, access to and along the shoreline, nor coastal ecosystems". The report went onto conclude that "The proposed development is consistent with the objectives and policies as provided by Chapter 205A, HRS, and Special Management Area Guidelines contained in Rule 9 of the Planning Commission Rules of Practice and Procedure." It is our position that the Planning Director's effort to down zone the private property without the fee owner's consent in this case is not supported by law, nor procedure, nor the County General Plan. As you can see from the graphic up there on the site plan that the Planning Department staff has posted, it's in an area of development very close to aMulti-Family Residential zoned area and immediately makai of something in the neighborhood of 800 acres of State Land Use Urban which is that yellow that you see, which is zoned for potential density of approximately 1490 residential units and a golf course. Whether they actually developed that project or not, I don't know; but it has been zoned for about the same period of time. We don't think that the proposed zoning or SMA permit for this particular project is out of line. We think it's consistent with that area of North Kohala. In fact, this property is about 38 acres, round numbers. At RS- 15zoning the total maximum density is something in the neighborhood of 110 lots. What we have the Special Management Area Permit for is only 50 lots. This particular client, Kohala LLC, has been in the process over the past year or so trying to determine, once we get the SHPD clearance for the archaeological sites and the burials as to where these preserved sites would be, it's to then figure out what size of proj ect he wants to do. We're looking currently at something less than the 50 acres (sic) but we're not sure yet. So I can't any make commitments with that regard. But while we are essentially under attack on the entitlements, we really can't move forward any further. Thus far we've secured water and an indication that the utility duct lines for the electrical have already been constructed under the Akoni Pule Highway to the project. We've recently made a request of the Kohala Ranch Water Company, which is a private water company servicing this area under, there's an agreement between the surrounding properties, we've made a request for the water meters. And what happens after that is they will then send us what they calla "will serve" letter from the public utility company that basically says "We will service your proj ect if you will build these certain water infrastructure improvements." The Condition L ofOrdinance No. 97-102 has already been satisfied by the submittal of the February 5,1998 agreement to the County. We've satisfied the affordable housing requirements of Condition L. Condition M of the Rezoning Ordinance related to submittal of a data recovery plan for the archaeological issues, we've just recently completed all of the work for that. So now 7 at this point in time we would be ready now to develop what the configuration of the lots would be, considering the archaeological preserved sites which are numerous in this area. The property owner over the past several years has gone back and forth between considering whether he wanted to do a very low density proj ect to negotiating with a potential j oint venturer who was proposing to develop this property and the next door to the south property, which would be a total of about a 102-acre site for development, joint development, of those two project areas. And so the density on the present property, the Kohala LLC property, would have been reduced because it would have spread the density over on to the southern site. That took up some time during the mid-2000s and it in the end didn't work out. We have, in fact, just before the Planning Director sent his May 2007 letter to the applicant indicating that he will be processing this down zoning, we were already in the process of obtaining the project entitlements, preparing our draft annual report on the entitlements, which we did submit, along with our time extension. And so we are now currently underway to pursue development. But pending this development, pending this issue we have to stop. I think one of the big reasons, and something that the Planning Director's background report indicated, was that the time condition for obtaining final subdivision approval, although it's a violation, I think that he felt that one of the bigger reasons why you should down zone this property is, as he says, more important than noncompliance, this revocation action is being initiated in response to the resolution from the State of Hawaii Senate. Those are the two resolutions that Mr. Darrow referred to which was the 1988 Senate Concurrent Resolution 179 and the 2001 Senate Concurrent Resolution No.146. I was involved in the development of a project in North Kohala which generated, I think, the primary thrust for these resolutions to come out; and that was the Mahukona Resort project further up, several miles away from this particular project. The one in 198 8 came downright about the time that the SMA and entitlements were being processed for that project. And the 2001 resolution which essentially reiterated the 1988 resolution came out during the initial land clearing activities that was being conducted on the Mahukona site. We don't, and we are not aware of any specific reference in those resolutions to this particular property and, in fact, we don't think they apply to this property. As you can tell from the dates, in 1988 the Senate Concurrent Resolution 179 was passed. In 1997 when that resolution was already in effect, the Change of Zone and the SMA Permit for this particular property was granted. So I submit to you that those resolutions have no force and effect. I submit to you that the Planning Department's representations and recommendations on the original Change of Zone have not changed. An additional reason for the Planning Commission to deny this reclassification, this involuntary down zoning, is that this is a policy decision that the Planning Director is making by himself. He doesn't have any guidance from the County Council; and if he wanted to change the land use for this area, for this particular parcel, then he should have passed or should have processed a .General Plan Amendment for this parcel when all of the proceedings were going on in 2005 when the new General Plan was being processed. In fact, the property just to the north of this subject property was changed from Extensive Ag down to Conservation. So the Planning Department and the Planning Director was at that time looking at this area. And had he thought that this was inappropriate land use, then he should have processed a General Pan Amendment at that time. And his failure to do so I think is instructive that it points out the arbitrary nature of 8 ..~YM . _ _ _ . , , this action and that is one of the reasons, also, why we believe that the down zoning is inappropriate. I think it's instructive, at least today, that as of this hearing that we have no agency comments in opposition to our request for a time extension on the Change of Zone and the SMA, and at least as of today I don't see anybody testifying against our time extension. We feel that the involuntary down zoning is inappropriate. We believe that the Planning Commission and the Planning Director have both recommended and approved time extensions on change of zone ordinance and SMA Permits routinely; and that if there are any updates to those permits because of changed conditions, the Planning Commission and the County Council have felt very free to amend and revise those conditions on those time extension requests. I believe that that is a proper method for the Planning Commission and the County Council to act on this matter. We believe that we're being unfairly singled out and we are not being provided with the equal protection under the laws that you provide to others. I have another exhibit to provide to you, which is our July 20, 2007 letter from Carlsmith Ball to the Planning Commission, which is essentially our recitation of the legal issues that we feel are implicated by the proposed down zoning. I ask you to take that into consideration. But essentially like most, hopefully like most legal concepts the concept that we mentioned in those letters are founded upon the issue of fairness. Like I said, I could see the Planning Director pursuing a down zoning if this was a bad developer, if they had committed bad acts or if they had been intentionally disregarding any notification from the Planning Department they'd better get going on the project. The May 2007 letter to the developer indicating that they were going to process the down zoning was the very first notice that the developer had of the Planning Director's intention. We believe that the legal memorandum raises, I think, in legal terms, the basic issue of fairness that I started out with, is this fair to this applicant? Have you not in the other cases for time extensions routinely granted these time extensions to developers? We feel that we have provided enough information that the developer has proceeded with aspects of the development, and due to the SHPD clearance in May 2004 now is able to proceed with the preparation of his site plan for his lotting of the project. We feel that the Planning Department and that the Planning Commission's initial recommendation for approval and granting of the SMA Permit for essentially 50 percent of density, the zoned density on the project, was a reflection of the agreement by the County at that time that the downsized project that was coupled with a visual study to minimize, showing the minimal impacts of the project on the visual aspects of the Kohala coast was sufficient to address the concerns. I stand ready for questions by the Commission. ALAIVIEDA: Okay, before we do that, could I, I wanted to make sure that our exhibits are in the record. And what is the protocol for that? TORIGOE: Well, I think you can ask Mr. Lim to identify whatever exhibits he wants to have in the record for the SMA Permit matter, and see if there's anybody or the Planning Director has any objections to those, see if the Commission has any comments on the admission of that evidence, and as the presiding officer you make the call. ALAMEDA: Okay. Mr. Lim, could you restate the two exhibits that you just presented to us. 9 4 LIM: Sure. I'll go ahead and run through the list of SHPD letters. The May 19, 2006 SHPD letter to Paul Rosendahl, the April 28, 2006 SHPD letter to Paul Rosendahl, the May 8, 2005 PHRI letter to SHPD, the May 3, 2005, PHRI letter to SHPD. That was the first set of exhibits we talked about. I'd ask the Planning Commission, for purposes of the SMA record to take judicial or administrative notice of the County General Plan and the proceedings that supported the County General Plan, which is Ordinance No. OS-25. In those proceedings you will find the reference to the North Kohala District change that is identified as E-6 which was Extensive Agriculture to Conservation for the lot that is immediately north of the subject property makai of Akoni Pule Highway. We'd also like the Commission to take judicial and administrative notice of the fact that between the 1997 General Plan and the 2005 General Plan there has been no change to the County of Hawaii General Plan designation for the property. Therefore, we feel that it's inappropriate for the Planning Director to select out of all the other properties in the North Kohala region this particular property for a down zoning which, as I hope I made clear to you, is probably going to be the very first involuntary down zoning attempt by the Planning Director, at least that I can remember in approximately 20 years in the County of Hawaii. AL_AMEDA: All right, first thing first. LIM: My last exhibit was the July 20, 20071etter to the Planning Commission from Carlsmith Ball LLP. For purposes of the record, I'd like the Commission to take judicial and administrative notice of all the records and files in the SMA No. 379 and Ordinance No. 97- 102, SMA Permit 93-13, which is a prior SMA Minor Permit for a single family residence and ohana dwelling on the property. And that's all so far. ALAMEDA: Mr. Director, do you have any objection to allowing these exhibits to be p art o f the record? YUEN: No objection to the introduction of the exhibits into the record, nor to the Planning Commission taking administrative notice of the record, of the other records mentioned, including the proceedings of the General Plan Amendment. ALAMEDA: Thank you. Questions for Mr. Lim? Oh, Mr. Darrow, procedural question? I would like to first ask my Fellow Commissioners if you have any problems with the exhibits that were being proposed for the record. If not, okay, we need to make a motion to allow TORIGOE: Mr. Chairman, if there are no objections, you can j ust, as the presiding officer, admit them into evidence on the record. ALAMEDA: Okay. As a presiding officer I admit these exhibits into the record. DARROW: Just for procedural clarification purposes, some of these exhibits that were submitted are different letters but submitted as one exhibit. Would the applicant like these exhibits separate or is Exhibit 1 okay for the multiple? 10 w~., s LIM: I guess why don't we do it, to number them sequentially. The May 19th would be one, and so forth. There's I think four separate letters, so one through four. Then the Carlsmith letter would be No. 5. DARROW: Thank you. Thank you, Mr. Chair. ALAMEDA: You're welcome. I wanted to allow questions from the Commissioners since Mr. Lim is there. Who grabbed the mike first? I think Commissioner Domingo got the mike first. So go ahead, Commissioner Domingo. DOMINGO: Mr. Lim, ever since the acquisition of the change of zone and the approval of the SMA Permit, how many owners have since come into the history of this property? LIM: From the adoption of the SMA and rezoning, in mid-1997, there have been two owners. The owner at the time of the applications was Tom Gentry who met an untimely passing. He passed in about '97, late '97 I believe. Then inmid-1999 Kohala LLC takes title to the subj ect property. DOMINGO: Okay, thank you. ALAMEDA: Commissioner Iwashita? IWASHITA: So there's just those two owners? LIM: That's correct. IWASHITA: I don't know if you know the answers to these questions, Mr. Lim. In 1999 when Kohala LLC took title to this property, did Kohala LLC review the Ordinance No. 97-102? LIM: I can't say. I do know that they had submitted an annual report on the SMA and Change of Zone on July 5, 2001 which acknowledged the time frames. IWASHITA: I'm sorry, that's in 2001? LIM: Yes. I don't know what they saw when they purchased the property or before they purchased the property. But I do know that there is a July 5, 2001 annual report submitted on behalf of the client. IWASHITA: Thank you, Mr. Lim. Do you know who would know, who at that time, in that time frame, in 1999 when Kohala LLC purchased the property whether at that time they reviewed 97-102? LIM: If your question is did they know what their responsibilities were under the permit, I don't know what they knew at the time that they purchased. I know that subsequently they became aware of what the responsibilities were. IWASHITA: And by subsequently what time frame are you talking about? 11 LIM: I have to assume that around 2001 that they knew they had to comply with the time conditions cause that was the July 5, 2001 annual report submitted by Sidney Fuke on behalf of the client. IWASHITA: Okay. So by 2001 at least I'm going to assume, unless there is evidence presented earlier that, and unless you object, that the applicant knew at the time of acquiring title that there were these time restrictions in 97-102. LIM: Well, I guess I would have to obj ect because I don't know what they knew. I can't say myself what they knew. But I can say that as of 2001 they were aware of the time restrictions. In my discussions with them, the client is not a sophisticated developer and I don't believe that they understood that they would have had to make a formal time extension request for the time to get final subdivision approval. IWASHITA: Before 2002 when Mr. LIM: That's correct, that's correct. Cause we were retained subsequent to that and we had that discussion with him. IWASHITA: Okay. I tell you, Mr. Lim, my concern is that, you know, you raise the fairness issue, and that's a fair thing to raise. However, when we talk about fairness, you know the ordinance makes clear, as I read it, you know, the obligation of the applicant and the assignee, in this case is your client who acquired title in 1999. And, to be fair, I think the applicant needs to accept that responsibility from the time of acquisition, whether they actually knew or not. And therefore I think that it's important forme, anyway, as a Commissioner, that evidence be presented by you, you know, by the applicant, as to when they actually became aware of 97-102 and its time restrictive requirements. If we don't have that evidence I cannot even start to consider, really, in my mind, any fairness argument on the part of the applicant. Because if the applicant is not being responsible and the ordinance makes it clear that the applicant is responsible and the assignee of the applicant in this case, Kohala LLC, is responsible for meeting all of the conditions within the time frame spelled out in the ordinance, and that if the applicant is going to ignore that responsibility, then I don't think the applicant is in the position to argue fairness. LIM: I don't think the applicant intentionally ignored it. I think they just didn't know. IWASHITA: Well, I understand your argument, but we need facts. LIM: Well, I think the issue is it's a conceptual issue. Your argument I think would go to whether you grant the time extension or not; and that's a separate issue, tome, from do you change the zoning policy because of that failure to follow the time extension. I think those are two totally separate issues. IWASHITA: Well, I understand what you're saying Mr. Lim. However, what I'm trying to convey to you is that I believe that the applicant for the time extension here and the owner obj ecting to the down zoning proposal by the Director that the applicant has a 12 1 1 responsibility to present a complete record to support your unfairness argument, okay, both of them. And so, yes, we can argue philosophically or, you know, whatever term you want to put on it. But what I'm trying to convey to you is that I believe that unless the applicant puts on the record what it knew when, then we can make, all we have are philosophical arguments. we have no evidentiary basis to go forward to really address your fairness argument. So, you know, I would like some suggestion, or maybe we need guidance from Corp. Counsel, as to, you know, how this evidence is going to be generated, whether we require that applicant LIM: Then I would request a continuance if that's something that you need to decide the matter. IwASHITA: And the understanding would be that the applicant would do the necessary investigation and inquiry to present the evidence that I'm suggesting is needed? LIM: I understand that you want to know when the applicant personally knew of the time condition requirements under the Change of Zone and the SMA? IwASHITA: Yes, 97-102. LIM: That's correct, okay, I can get that. IwASHITA: Thank you. DOMINGO: Mr. Chair? ALAMEDA: Commissioner Domingo. DOMINGO: Thank you, Mr. Chairman. Mr. Lim, your reference to the developer not being a sophisticated developer, my interpretation is that probably you mean that he's not involved actively in the development arena, therefore not being aware of what he has to comply with at certain time or certain dates; and that unless having hired a professional who might be a planning consultant or even a legal person such as you, the developer as such would not be totally aware of things that should be met at the time intervals. That's what I'm interpreting you're trying to tell us when you say he's not a sophisticated developer. Am I right? LIM: I think that's correct; and I think that goes more to the issue of good faith on his part. I mean from what I know about the progress of the project, he was fairly stalled in the mid-2004 and 2005 area in negotiations with the one person who was going to jointly develop his property and the one to the south. So it kind of came to a stop; and that didn't work out in 2005. And so then he retrenched, tried to get the archaeological approvals done and was ready to move forward when we got hit with this issue. DOMINGO: Has the owner even attempted to sell the parcel during the past years? LIM: Other than the proposed joint venture in about 2004-2005 I don't believe so. I can't say for sure. I don't know if he has listed the property or not. 13 u~ m--- _ . DOMINGO: Now, you know, going back to Commissioner Iwashita's statements with regards to fairness, I am reminded of an application which we entertained perhaps a month or two ago with regards to a special permit given to a trucking company who had not met the requirements of the special permit and had not submitted plan approvals and other pertinent . information that was required of him during the process of having the permit. And it came before us, and what this Commission did after listening to him on all the facts and weighing the issue, we decided that perhaps, you know, okay, this individual was not aware of what was supposed to be submitted to meet the deadlines imposed on those submittals. And on top of that he had an attorney, a friend of his who was consulting with him and who was carrying the issue around; and he, in fact, did not proceed to submit those requirements in a timely fashion. You know what happened with us? We the Commission, we decided to also at this point to be lenient with him and we said, okay, you sit down with the Planning Director and discuss with the Planning Director what would be the most fair way that we can address this problem. Had this not been addressed, and I don't know if it had been addressed already, this individual was set to pay a phenomenal amount of fees to the County, you know. So I guess when we speak of fairness it goes both ways. And I think this Commission will, I personally will consider anything that would pertain to the issue of fairness, regardless if it goes one way or the other. ALAMEDA: All right, just following protocol, let me get a couple more questions from the Commissioners. And I wanted to ask, of course, Director Yuen if he has questions, cause then after that Director Yuen has an opportunity to present his case. So, going along the lines of our Commissioners' questioning? SIRACUSA: I'll hold that till later. ALAMEDA: Okay. Commissioner Woodward. WOODWARD: Mr. Lim, can you explain to us other than the fact that the owner may not have known unti12001 about the responsibilities, why he didn't request extension of the time in 2001? LIM: I do not know. All I can surmise is that when he was doing the negotiations with the potential j oint venture partner he was kind of leaving it up to them and it just didn't work out; and it fell through the cracks. I can't say, I know that he didn't personally know that you're supposed to make a time extension request, although it may be because of the terms of the permit he should know. We're not trying to say. that, you know, he never knew. I think that at least as of 2001 when Mr. Fuke submitted the annual report that at least the client should have known, I'm assuming the client read that report. WOODWARD: Thank you. LIM: I think what we're trying to say is the issue of the time extension for the zoning and the special management area permit is something that you deal with regularly. You've done numerous ones of those. And I think that the way the Commission has approached, at least the ones that I've been listening to, is that you take the time extension, you look at the project all over again. If there are new issues that have come up since the original passage of the zoning ordinance or the SMA permit you put those issues in and you include those in the new permit or a new recommendation on the zoning to the County Council. That's another issue, I 14 ~._...,._v , . _ _ _ _ . _ _ guess; and I' d have to ask Mr. Yuen to give me some guidance on this. But I don't know that there have been many time extension requests that have been denied by the Planning Commission. There may have been but I wasn't tracking those. Thank you. ALAMEDA: All right. Commissioner Domingo? DOMINGO: Thank you, Mr. Chairman. Mr. Lim, after the acquisition of the property by the second owner, at what point did you folks contract with Rosendahl to go ahead and conduct an investigation and assessment of the property with regards to those burial sites and historical sites? LIM: I'm not sure of the exact date of the contract, but anything after 1999 should have been under contract with the current owner. I think, my impression of looking at what was happening on the burial treatment program and the inventory level work was that it was an on-going thing that took many years to accomplish. DOMINGO: Thank you very much. LIM: Before I forget, Mr. Chairman, for purposes of what constitutes the record on appeal .for the SMA portion of the proceedings, I'd like to incorporate the two voluntary down zonings that I spoke about earlier, which is the Matsuda, John Matsuda rezoning and for a parcel in Hilo identified as TMK: 2-4-80:parcel 15. And the other would be a voluntary rezoning for the Ag 400-acre district for TMK: (3)6-5-l:parcel 20, which was the Waimea town puu. ALAMEDA: I' m wondering if our staff could allow us to view that so that I could ask the Commissioners if they don't have any obj ections to it. Cause we need to look at it, yeah, as Commissioners. Commissioner Siracusa. SIRACUSA: I remember both of those issues, but what I don't understand is why, why do you want to incorporate those. LIM: I want to incorporate those as evidence of what the Planning Commission and Planning Director have recommended in the past and the fact that those are voluntary rezonings. I don't believe that there are, at least that I'm aware of, any involuntary down zonings that have ever been passed or SMA revocations that have been passed by the Planning Commission or the County Council. I don't know everything, but that's at least what my research shows to date. ALAMEDA: Let me ask Mr. Yuen if he obj ects to having that as part of the record. Mr. Yuen? YUEN: No. He's simply referring to a couple of actions that took place in the past. I have no objection to that being, the factual representations that are being made that there were a couple of down zonings that involved the consent of the applicant. There is more information on this that I' 11 give a bit later, but there's a time for that. ALAMEDA: All right, thank you. So there's no objection by Mr. Yuen to include that as part of the record. 15 LIM: That's for the files from the Planning Department on those, Planning Department, and I guess County Council files on those two rezoning actions. IWASHITA: Mr. Chair? ALAMEDA: Commissioner Iwashita. IWASHITA: What do you mean the files? LIM: You know, for purposes of the record on appeal, I think it's safer for me to designate the entire file, which would be, you know, if you go down to the Planning Department and the County Council and pickup and ask for a copy of the public records on those issues, then those are the things that I'm referring to. ALAMEDA: From what I understand it's pretty broad, those files, there's a whole bunch of information. LIM: That's correct, but I think for purposes of, you know, if the Commission decides to go on an involuntary down zoning, I need to have as much in the record as I can. Y[JEN: I have a question. What are you asking? That the entire rezoning of those two actions be put into the record? LIM: That's correct. YUEN: Seems like a big waste of paper, if your point is only that LIM: At this point in time because of the potential negative ramifications of my client, I can't, you know, I can't agree to cut off a portion of the record that might be helpful later on. I just am not prepared to do that now. YtJEN: Well, if he wants to do it I don't have a problem with doing it. I think it's a waste of paper. ALAMEDA: Well, I feel like there's no general obj ection by Mr. Yuen to include this. However, just make note that if we do, if this agenda item does continue, I would request from the applicant that we' d bring in all of this, you know, if you want it to be part of the record. Commissioner Siracusa. SIRACUSA: It seems to me that you're comparing apples and oranges. You want to see the complete files of applications where it was voluntary where the applicants requested or consented to the down zoning; and that has nothing to do with this case which is an involuntary down zoning. It's apples and oranges, so I don't see how you can make any comparisons. LIM: Well, for purposes of my legal arguments I want to have those in the record; and as a practical matter I was going to ask later anyway that I would like the Planning Director and the Planning Commission to provide also copies of the files on any involuntary 16 SMA revocations and also any involuntary change of zone down zonings. I mean I'm not aware of any but maybe Mr. Yuen knows. YUEN: Well, here, this is where, you know I do have to object if this is an attempt to delay the proceedings from the Commission being able to make a decision today. This is scheduled for hearing, we're here to have a hearing. If you want to make something into exhibit, you can go get it and bring it for the hearing. ALAMEDA: So if there's a potential to continue then maybe there's selected parts of that big file that you could LIM: Then I would ask that the Planning Commission issue subpoenas for the applicant to request that information from the Planning Department. ALAMEDA: Mr. Director? YUEN: Yeah. We're here, this is scheduled for a hearing, we're here for the hearing, it's duly noticed. If the applicant wants to come to the hearing with, the applicant knows, they want to bring an exhibit to the hearing, they can bring the exhibit. If they want to get the file from the Planning Department, they can come into the Planning Department and get a file. Nobody needs a subpoena to do that. Again, I'm not concerned with the applicant saying, making representations about what has been done or hasn't been done in the past. I am concerned about this being an effort to prolong the hearing to bring in evidence that should have been brought to this hearing in the first place. If the applicant thought it was so important to their position and their case that they need to physically have this in the record, they could have done that. Now if the applicant is saying, if all the applicant is saying is that subsequent to, that they want this entered into the record subsequent to the Commission making a decision, I don't have a problem with that. ALAMEDA: Mr. Lim, response? LIM: I' d like to have that before the Commission. I think that's something the Commission should see. The Planning Department and the Planning Director is within sole control of his records. Like I said we don't know of any involuntary rezonings or SMA revocations; and all I can do is ask him. And if he tells me that there are none, then that's sufficient forme. That sets my record. But we just don't know. And so that's why I need that information from him. I mean, realize that this SMA Permit and rezoning have been alive for 10 years, we get basically almost a 30-day notice to come in and defend ourselves. So I think, you know, in light of the serious ramifications to my client and the need for a substantive due process we request that the subpoenas be issued for that information and that we continue the hearing for further proceedings. ALAMEDA: All right. So on the table now is a possible continuance. Are there any questions or concerns about that? Commissioner Siracusa. SIRACUSA: Yeah. Mr. Lim is saying that he wants the Planning Commission to see those files. We already did see those files. We're the ones who acted on them. And you knew about them because you're the one who brought it up and you referred to both of those situations. 17 a . ~ ~ So you had ample opportunity to get those files and come in today for it. You know, we carry around so much heavy paper and to have all of those files added to the paper for the next time we have to come before with everything else it seems to be like just a total waste of time; and I would like to make a motion that we deny applicant's request to continue. ALAMEDA: All right, that may be a little premature. We have a little more to go on that. Any further questions for Mr. Lim? Any questions? IWASHITA: Mr. Chair? ALAMEDA: Okay, Commissioner Iwashita. IWASHITA: I just want to clarify for the record, Mr. Lim, that as of 2001 when Mr. Fuke sent his letter on behalf of the current applicant, that as of that date the applicant for the purpose of this record had knowledge of all of the conditions in 97-102? LIM: That is my expectation. I haven't specifically asked him that question. IWASHITA: But for the record, in this proceeding it's clear that as of 2001 the applicant hired a planning consultant, Mr. Fuke, who reviewed the requirements of 97-102 and submitted an annual report as part of the requirements of 97-102, is that correct? LIM: That's correct. IWASHITA: That also, that 97-102 states clearly that, this is paragraph V, page 10, "Should any of the conditions not be met or substantially complied with in a timely fashion," and the timely fashion we're discussing is failure to apply for administrative extension within five years of the original granting of the zoning and also failure to file a request to this Commission within that same five years actually because no administrative extension was granted, "that the Director may initiate rezoning of the subj ect property to its original or more appropriate designation." That was part of the ordinance which Mr. Fuke on behalf of the applicant reviewed. LIM: That's what it says. IWASHITA: Thank you. ALAMEDA: Seeing no further questions from the Commissioners, you have any more questions you' d like to present, Mr. Yuen? SIlZACUSA: Point of order, there's a motion on the floor. ALAMEDA: Yeah, but Commissioner Siracusa, the protocol, we need to have the Director make his presentation, and when he's done and there's no testimony, then we go to the motion, according to our procedures. Mr. Torigoe? TORIGOE: Well, at this point there was a motion made, there was no second yet. At some point you would allow for a second to see if it, you know, the motion should be considered. 18 And then Mr. Yuen should be allowed to respond, actually both parties should be allowed to respond to the motion. ALAMEDA: Oh, so we could take the motion up now. TORIGOE: Well, the motion having been made, you know, actually, and it's not a dispositive motion either at this point. It's just denying the continuance that has been requested by Mr. Lim. Now if something else comes up as the hearing goes on and you find that there is some basis for continuing, then, you know, another motion can be made along that effect, or you as the presiding officer has the power under your Rule 4, you have the power as the presiding officer to continue the matter also. ALAMEDA: Commissioner Siracusa, let's do that. I'm not clear on your motion. Was it to continue or was it to SIRACUSA: It was to deny Mr. Lim's request for a continuance. ALAMEDA: Oh, got you. Is there a second? Sono second, motion dies for now. Mr. Yuen, you have any questions before you present? YUEN: Yes. First on the owner's plans, Mr. Lim, according to, there's a letter in the file signed by State Historic Preservation Division that says that they are agreeing to a change in the preservation plan for the property. This letter is in 2001. The gist of the letter is that there was a Historic Sites Preservation Plan that called for interpretation of the sites, that means some kind of signage of the sites that would be posted. And the owner asked SHPD to take away that condition. The sites would still have to be preserved but not to have any signage because the owner wanted to, the owner's plan was to develop one single family home on this 37-acre property as its development plan. And given that the development would be limited to one home, SHPD agreed to take off that condition requiring interpretation. So it is in fact correct that at some point that around 2001 the owner was planning to only develop the property with one single-family home. LIM: I believe that is correct. He had, and that's part of the issue in terms of why he vacillated back and forth. That was, I think, his initial intent. Then he entered into the negotiations with the other joint venturer and that fell apart. And so now he's on his own basically trying to develop the subdivision. YUEN: And just a couple of short questions with respect to getting files. The rezoning files that you are now asking to be put in the record, have you ever requested those from the Planning Department in preparation for this hearing? LIM: We've got relevant copies of those. And if I'm forced to and the hearing doesn't get continued I'll submit my copies of what little I have. YUEN: You did ask for and obtained the files? LIM: We got portions of the files. As you know, we were never contacted prior to May that this was going to happen in terms of the involuntary rezonings. I would have hoped 19 that we could have discussed this before it turned into a public hearing, but, you know, here we are. So that's why I'm at this point in time trying to set the record. I think that part of the information that we need that I would really like and maybe you can just tell me, I don't know if you know now, but we really needed to know what the Planning Commission's prior actions were, if any, on the denial of a time extension request and the involuntary revocation of an SMA permit. I mean if you know that there are none, that's sufficient forme; and if you say that now, we don't need those records. YtJEN No, there have been, there has been at least one; and I' 11 get into that. And then just to keep this orderly you can ask me questions about that to the extent that I don't explain it. But my question on getting the files, you said you had portions of the file. Is the problem that the Planning Department only turned over portions of the file or is the issue that you only copies portions of the file? You requested the file and got the complete file, correct? LIM: That is correct. YUEN: And you chose to only copy certain portions? LIM: We chose selected portions. But for purposes of this litigation I would like to have the whole file in. YUEN: That's all the questions I have. ALAMEDA: Mr. Torigoe, do we have to decide upon Mr. Lim's request for these files now or at the end? TORIGOE: Well, at some point before you adjourn. Let me make a couple of remarks on this. Your rules generally, first of all with respect to exhibits, your Rule 4-18 on evidence speaks to how exhibits are to be presented. And generally speaking, the parties are expected to, under Rule 4-18(x, provide copies, other parties shall be afforded an opportunity to examine the document and to offer into evidence other portions that may be material and of relevance. Generally under Rule 4-18(g) when exhibits are offered in evidence, the original and fifteen copies shall be furnished to the presiding officer with a copy to each party to the proceeding other than the Commission, unless they have been previously furnished; and, you know there are certain procedures that are setup for producing these. So this is one of the reasons why it is becoming a little difficult to keep order at this point because the applicant is asking for your indulgence in just recognizing and accepting quite a few items which are not even before you as copies. Whether, you know, it's within your discretion to offer a continuance to allow these procedures to be followed so that it's more orderly. You can also insist on strict conformance with these rules. With respect to subpoenas, similarly, there are rules that discuss how that is done. Your Rule 4-14 speaks of requesting subpoenas, "...shall be valid only if it is physically received by the Commission no later than five working days before date of the hearing at which the subpoenaed witness is to testify or documents are to be produced." So, you know, your rules provide for certain procedures to be followed so that things are done in an orderly fashion. 20 . ~ ~ _ , . ~,~._.m.... Now there may be situations where something comes up in the course of a hearing that a party did not anticipate, could not reasonably anticipate, and of course in those cases you should do what is necessary to allow a full record and justice to be served. But, you know, these are matters of discretion with the Commission. At this point I just wanted to point out that there are rules and procedures for doing these things; and it's within the Commission's discretion, particularly the presiding officer who under your rules has the authority to make decisions on questions of evidence and rules on all obj ections or motions which do involve a final determination. So there's a certain discretion that the presiding officer has to manage the way the evidence comes in. ALAMEDA: Mr. Torigoe, I have a question. As the presiding officer, if there are parts of the record that the applicant wants us to review and I deny that request, wouldn't that increase the probability for appeal later on for an incomplete record, if you will? TORIGOE: Nell, any decision that is made on either denying or accepting evidence is potentially an appealable matter if someone is objecting to it or, you know, is adversely affected. ALAMEDA: Commissioner Domingo? DOMINGO: Thank you, Mr. Chairman. I'm wondering if the procedure of what we're talking about is at this time appropriate. I think what we're talking about is something that we anticipate might happen but never know that it will happen. But, in any event, there is a step to prepare for that event when it happens. I was wondering if this is at all necessary at this point. ALAMEDA: Well, the discussion is appropriate because the applicant has requested that we consider this potential evidence. But whether we need to consider it or not at this time is like what Mr. Torigoe said, it's discretionary. Mr. Yuen? YUEN: Is the applicant formally requesting a continuance? LIM: Yes. YUEN: Okay, then I'd like to speak to that for just a minute. ALAMEDA: Sure, Mr. Yuen. Y[JEN: First, the records that the applicant is asking for are records of prior down zoning actions on totally different pieces of property which apparently happened with the consent of the applicant. If that's the point that Mr. Lim wants to make, we agree with the point. And so, he's asking for a continuance to present the physical file of the rezoning. He had the physical file of the rezoning, he chose to make copies of some items of the file and not others. If he had brought those to the hearing we would have had no obj ections to him introducing them. I don't know if the Commission is going to make a decision today when it finishes hearing all the evidence. That's really up to the Commission. But I do think that this is a very flimsy reason to continue the hearing to present exhibits that were completely within his power to bring to the hearing if he thought that they were so important that the Commission ought to consider them, and especially when I've agreed with the gist of the point that he's apparently trying to make. So I do think that the Commission ought to take this as far as it can today, hearing as much as it can, 21 try to make a decision, and not continue it for the copying of unrelated and files of very little relevance. ALAMEDA: Commissioner Woodward. WOODWARD: Mr. Lim, did you make any attempt to contact Mr. Yuen after receipt of this letter dated May 31St, to try and work out the situation prior to having it come here? LIM: No. We just talked briefly, I think, one time when I was at his office, but hardly at all. We assumed that because he had publicly gone out with the intention to down zone that there was really nothing much to talk about. WOODWARD: Okay, let me ask Mr. Yuen, did you make any attempt to work this out or to negotiate the situation prior to having it come to us? YUEN: Mr. Woodward, this is, I believe that the land use should be changed. This is not a question to me of whether the applicant is a good person, what they have been doing for the last ten years. It is a belief that the current, the zoning designation which has technically lapsed of RS-15 should be changed to a lower density zoning, in this case RA-Sa. So the answer is no, I didn't initiate a discussion with the applicant. We sent them this letter in a good time; and here we are. That was their notice and here we are seven weeks later to go through this process. WOODWARD: Thank you. ALAMEDA: I' d like to move this along. If there is no further questions for our applicant, I' d like to ask Mr. Yuen to formally present Any more questions for the applicant, Mr. Lim? Anything else to add, Mr. Lim? LIM: I' d like to hear Mr. Yuen's presentation. ALAMEDA: Thank you. Mr. Yuen, would you like to do it from here or up there. YUEN: I think it might be more convenient for the Commission if Isat ALAMEDA: Thank you, sure. YUEN: And faced the Commission. ALAMEDA: Thank you. And, Mr. Lim, just for the record and so you know, that your request for continuance I'm going to hold that off for now. Mr. Yuen? YtTEN: This isreally Good morning, Mr. Chair and Members of the Commission. This is really a question about what is the right land use for this 37 acres of oceanfront property in North Kohala. It's not a question about whether the applicant is sophisticated or unsophisticated, or knew or They certainly should have known of the conditions of the rezoning. This is a point at which the Commission on the zoning has to make a recommendation to the Council as to what is the best zoning for the property. And with respect 22 rv, _ _ ~,.~,~.a,. _ . . to the SMA Permit, naturally if the Commission determines that the best zoning is a 5-acre lot zoning, then it should follow the, naturally I mean rather than make an inconsistent determination, it should revoke the SMA Permit which is about to lapse in a few days as well. So, we, Mr. Darrow in his presentation talked about our reasons for recommending a change of zone here. We've seen a great deal of development along the shoreline in Hawaii. We've seen a great deal of change. We have an opportunity here to move this piece of shoreline to a lower density designation, not to wipe out all value for the owner, all use for the owner, but to move it to a lower density designation so that if it is subdivided later to the 5 acres in the SMA Permit process you will have perhaps seven homes in the viewplanes, seven homes that would be constructed, rather than 50 as allowed by the current SMA Permit, and perhaps even more by the zoning. So I urge the Commission to focus on that land use issue. What is the proper land use for the area? If you look at the map there, this is a very conspicuous piece of property from the highway. The oceanfront is quite close there. The bay itself and the view from the highway, the view of the bay there is identified in the General Plan as an example of natural beauty in the North Kohala District. If you know, the General Plan, there aren't, they're typically 6, 8,10 identified areas of natural beauty in each district. There aren't hundreds and hundreds of these areas. So it's something that has been recognized as an important scenic vista. If you also look at the map, you'll see there's, this is fairly close to Kawaihae. There's, about 3,000 feet away, there's one area of relatively high density zoning that is actually being developed inSingle-Family lots. It's zoned for Multi-Family but it was actually developed as Single-Family lots; and that's the brown color there. Then the next light green color is a piece of property that came to the Commission for an SMA Permit that's zoned A-Sa, essentially the same zoning as we're recommending for this piece of property. That landowner on those 63 acres didn't try to change the zoning from the A-Sa. They accepted the 5-acre zoning that they had, came to the Commission for an SMA Permit and is now, and it has received an SMA Permit to subdivide that to S-acre lots with conditions that are meant to protect public interest, such as the viewplanes in the area. So then you have, looking at the map there, you have this piece of property that we're here today, which is colored sort of an amber color; and then from that point going north, the next property that's actually zoned for denser than 5 acre lots is at Mahukona. So for many, many miles along the shore of North Kohala from the Highway to the sea is, actually from that brown color, and I don't have the exact, it's something like 10 miles of shoreline is zoned either for Conservation or for 5-acre lots. And so this is what we're proposing to be the zoning for this piece of property. Now let me turn to the question of fairness which is really being raised to you as an issue of consistency. And the notion seems to be that because the Planning Director has generally gone along with time extensions when zoning conditions have run out and it has become the time for there to be a time extension that the Planning Director always should do something like this. And I think that's really the argument that's being made to you, that it should be treated as simply a mechanical or routine decision rather than, as I would say, ,it's an opportunity to look at the zoning and see if it's still appropriate. That's one of the key reasons to have a time condition of zoning. If it hasn't been developed according to the zoning, a few years down the road the Planning Commission and the County Council can take a hard look at it and say should this still be zoned for what people thought was a good idea back in 1997. 23 So it's almost like if I were driving down the road with, say when my children were small and we came to a stop sign, and I stopped the car, I looked both ways and I go ahead; and we do this four or five times in a row. And then when we come to another stop sign I stop and I don't go; and my kid says, well, how come you're not going, you always go after stopping. And then a car comes whizzing in front of us. And I didn't go that time because I saw a car coming that was going to hit me. Well, in this case when looking at this time condition about to expire on this piece of property, I see a piece of property that should be changed from its RS-15 zoning in order to protect the shoreline resources. This I believe, and I'm fairly certain of this, that this is the only piece of oceanfront property that has needed a time extension from the County Council on a zoning that has come up while I've been the Director. We also, and so if you're looking at consistency and treating shoreline property, you know, looking at the characteristics ofland and what should be zoned we have been consistent in not rezoning shoreline property on this island in this current administration. The only shoreline property .that has been rezoned in the 6 1/2 years of the current administration was one piece of State land next to Kawaihae Harbor right next to the boat harbor where the State came in and requested a change of zone, somebody had an idea for a commercial use on the site. Now most of the property there, actually the State EOd (executive ordered) for public purposes to the canoe club. So that's the only exception in 61/2 years of rezoning shoreline property. So we come up, in this case, with a shoreline property where the zoning has lapsed, the zoning has expired; and we have to take a fresh look, what should the zoning be. And we're saying not wipe out the applicant's land, potential use of the property, but to rezone it to RA-Sa, in other words, a potential of 5-acre lots. The property is worth quite a bit of money with R.A-Sa zoning. The property immediately adj scent to it was sold for multi-millions of dollars. I think, and this I hesitate a little bit because I'm going from memory here, but I believe it was sold for $8 million with that zoning. The applicant, the owner went ahead with development on 5-acre lot sizes with that property. We're not talking about a situation where we're wiping out value from the landowner by, for example, a down zoning to Open. ALAMEDA: Mr. Yuen? YUEN: Yes. ALAMEDA: We have a request for a bathroom break. Is this a good time to Y[JEN: I' d be happy, I would never ignore a request for a bathroom break. ALAMEDA: Well, we're going to take 10 minutes. And since there is no objection, I' d like to take a recess at this time. RECESSED The Chair called a short recess at 11:06 a.m. RECONVENED The meeting reconvened at 11:18 a.m. 24 ALAMEDA: The meeting of the Commission will return to order. I wanted to continue where we left off with Mr. Yuen's presentation. I know you were at the tail end but I don't know how far. Mr. Yuen? YUEN: Yes, and perhaps I should be, I believe I wasn't sworn in. ALAMEDA: Yes. Please raise your right hand. Do you swear or affirm to tell the truth now before the Hawaii County Planning Commission? YUEN: Yes, I do. ALAMEDA: Okay. How about your name and address for the record. YtJEN: Yes, Chris Yuen, 32-832 Old Mamalahoa Highway, Ninole. And just to make sure there's no objection, to Mr. Lim, that I wasn't previously sworn in? LIM: We have no objections to Mr. Yuen being who he is. ALAMEDA: All right, thank you. Mr. Lim, you may continue. LIM: And I'll just close by responding to a few points made by Mr. Lim. One, and I don't want to beat a dead horse here but to stay on the question of fairness, Commissioner Iwashita read the section of the zoning, the rezoning ordinance that says if the conditions are not complied with in a timely fashion the Director may initiate a rezoning to the original or more appropriate designation, that's what it says, and that's what's happening. Somebody can hardly complain that when the ordinance says you can do that and that's what the Planning Director eventually does. The SMA Permit has almost the same language. It says "Should any of the foregoing conditions not be met or substantially complied within a timely fashion, the Planning Director may initiate procedures to revoke the Special Management Area Major Use Permit." And that's what it says and that's what's happening here. There was a complaint that this is a unilateral action of the Planning Director. The Zoning Code says the Planning Director can initiate rezonings of property. The Planning Director can't rezone property on his own. That, as is happening here, goes to the Planning Commission, and will eventually have to be done by the County Council, which is the only body empowered to make the final decision. But the Planning Director is empowered to initiate that and to make recommendations and to advocate for that. The uestion of, and just to address a couple of points that are in the July 20~ letter from q Mr. Lim, essentially it's a series of legal arguments. There's a term called vested rights which means that a property's rights vest when, in law, that it has proceeded to a point where it cannot be changed by subsequent action. Normally you can, even if this were not up for a time extension, the Planning Director could still do the same thing and initiate a rezoning of the property. At a certain point though, the rights of the owner are considered vested and the Planning Director can't initiate that kind of a change to the land use designation. Under Hawaii law, that vesting occurs when the proj ect has its final discretionary permit. In this case, without saying that there may be other discretionary permits that are required, at the very least the SMA Permit is clearly a discretionary permit. The SMA Permit is going to lapse in a couple of weeks. 25 _ _ ~ ,rt _ .v There is no way that the applicant can obtain final subdivision approval in a couple of weeks. They don't even have a tentative subdivision map submitted to the County. I think there's no question about that. The applicant does not have vested rights. One of the functions actually of having a time condition is that if your time runs out your rights are not vested. And the final thing I'd like to say, just in connection with a couple of factual questions, on the question of revocation of other SMA Permits, I didn't come here prepared certainly to discuss the history of revocation of other SMA Permits, particularly before I was the Planning Director. But I do know that in the 2001, roughly the 2001-2002 period we went through, administratively in the Department, we went through a number of SMA Permits where the time conditions had run out and we brought those to the Commission to revoke because we didn't feel that we could just administratively say your time has run out. We thought we needed to have a proceeding like this to revoke them; and at least one was contested. I can get the reference to that. But as I recall at least one of those was contested by an applicant who wanted it. So it's not a, certainly, even if it has never happened before, the Commission clearly has the power to do it and it is something that And I think it's of very little relevance whether it has ever happened before or not. You can always do this. It may be that no SMA Permit has ever come up where it should have been revoked before. But it did happen that a number of permits, and I'm speaking of permits whose time conditions had completely expired and there was no chance of an administrative or In this case it's not that dissimilar because the permit is going to expire in two weeks, but the time conditions had expired and we brought them to the Commission for revocation. And, finally, I do believe that, I know that in the 1970s several properties in Keaukaha were down zoned from Resort to Single-Family Residential, I believe, without the consent of the landowner, but I'm not absolutely sure on that point. Again, it's a point of very little, very little significance and relevance. If it never happened before, the Commission, or the County Council clearly has the power to down zone property. ALAMEDA: Thank you, Mr. Yuen. Let me just, first of all, acknowledge the public, thank you for coming today. As you know we are behind schedule and we are planning to take a lunch at 12. We do have a testifier for this particular agenda item. So I would like to move this along as quickly as possible without compromising the integrity of this public hearing. So, Commissioner Domingo, go ahead. DOMINGO: Mr. Chairman, thank you. Mr. Yuen, I don't know if I understood you correctly. But at the whim of a Planning Director, if he or she desires to down zone any property they can do it with no just reason, irregardless of their being a time extension or not? YUEN: No. Well, they must have a just reason on a land use basis, for example, that the property was inappropriately zoned; and there may be examples of, you know, a lot of properties for example was zoned by a land use, by a map in the late 1960s. There was a master zoning map prepared. If one reexamined it, if one reexamined the zoning and said, well, that's too dense for the area or the community's desire for the area has changed, you'd have to have a reason for it. It'd have to be consistent with the General Plan and the Planning Director could initiate, can initiate that at any time. It does not have to be tied to a condition of a rezoning ordinance not being satisfied. And this is clearly, I mean, it's stated in the Zoning Code as the Planning Director may initiate the rezoning of a piece of property and it doesn't limit it to 26 rezoning to a more intense use. The Planning Director can also and has initiated rezonings to a less intense use. DOMINGO: You know, coupled with the issue of time extension with regards to this particular property, I think I heard the Department indicate they looked at this zoning at this particular site and that it was felt that the density, that this development would cause, result in, is not something that is desirable because of the density. Can that be an issue for down zoning? ALAMEDA: Mr. Yuen? YUEN: Yes. ALAMEDA: Mr. Domingo, follow-up? DOMINGO: So, in other words, along Alii Drive if it is felt that the density is so dense and that future development would cause hardship within that area, then there is a cause for down zoning? ALAMEDA: Mr. Yuen. YUEN: The Planning Director or the Council can initiate a down zoning of property along Alii Drive or elsewhere in the County against the owner's wishes. At some, depending on the stage of permitting it may be that the property has what I referred to earlier as vested rights and that they're protected from that. But as a general matter, yes, the Council, the Planning Director can initiate a down zoning of property along Alii Drive or elsewhere. DOMINGO: You know, the issue of density for my own reasoning is that I'm more concerned about the density on Alii Drive more than anywhere else, than even considering the density on this one small parcel that we're zoning. Now, you know, you indicated that there are other 5-acre parcels going north towards North Kohala. But I think, if I'm not wrong, those properties are interspersed between and amongst State land and which probably would render them impossible to develop because of the issue of bringing water to the site as practically, the cost is practically intolerable. But, you know, I just wanted to make sure in my mind what we can do, and what the Planning Director can do, and what is proper with regards to lands zoned throughout this island; and I'm glad that you clarified that. Because as you indicated there is an issue of depriving development, land issue, issues depriving landowners their development rights. You know, there is that issue which is very serious if that is done. Anyway, thank you very much. ALAMEDA: Any other questions? Seeing none, Mr. Lim, you have questions for Mr. Yuen? LIM: He talked about the prior revocation of the SMA Permits, I guess we'll look to see what he comes up with in terms of the examples that he mentioned. ALAMEDA: Okay. Mr. Torigoe, would this be an appropriate time for a testifier? 27 TORIGOE: Sure, you can do that, if the Commissioners don't have any further questions. ALAMEDA: No further questions? Thank you. Can I ask Jojo Tanimoto to please come forward? Do you swear or affirm to tell the truth now before the Hawaii County Planning Commission? TANIlVIOTO: I do. ALAMEDA: Thank you. You may be seated. Ms. Tanimoto, can you please state your name and address for the record. TANIMOTO: Jojo Tanimoto, PO Box 44337, Kawaihae, 96743. ALAMEDA: All right. Okay, thank you. Thank you for coming. You may state your testimony at this time. TANIlVIOTO: I'm sorry, what was that? ALAMEDA: You can proceed with your testimony. TAN~IlI~IOTO: Thank you. I live in the Hawaiian Homestead Subdivision, which is on the boundary of the, the South Kohala boundary of this picture that you have. This subdivision is on the North Kohala side of the boundary line. So one of the problems that we have is this boundary thing. And I don't know if that has anything to do with communication or whatever. Now I got my lease from Hawaiian Homesteads in 1986. My residence at the time was the County Spencer Park until such time that I got the Commission's approval to build in that subdivision right there. At that time it was not these owners that owned that property. It was a Japanese company. And the whole subdivision over there is dependent upon this company's water that's on their side of the boundary. And since my residence in Kawaihae there has been a lot of communication with the next door owners before. I have never met my neighbors that own this property. I have never heard from these people. I am aware of this meeting today by accident because it was brought to my attention. Any of the changes and whatever, I regret that I am not up-to-date with the last six years. Prior to that, which would be over 10 years, I am aware of what was going on. I also noted on this picture here that the Na Ala Hele Trail stops on the Hawaiian Home side and then there's nothing after that, which is the whole boundary of this subdivision. Okay, but my question to the Planning Commission or anybody else is as of 2000 what has changed that these people can come and ask for some kind of revisions? what has changed to improve anything from even down at the Harbor, except population, traffic? There's still no infrastructure. And I probably am cutting off my nose here because the water is on that side; and if that company turns off the water our whole subdivision, everybody, has no water. And there's no infrastructure from the County, there's no availability according to the water Department. And so I would like to know, oh, before I even ask you that question - is when I came into this meeting I was very happy to hear that you folks have the same concerns so I'm not going to even repeat it. I think there was only that one, what has changed since 1986 to today that allows these people to make any kind of changes from what, or deviations from what the original owners of 28 _ _ ~.:,~,a._ that property agreed to do, or what kind of vision and plans these people have, or who are they? I would really appreciate this Commission, I would request that the Commission put this on hold until we figure out what they're doing, or where they're going to go, or anything like that. Thank you. ALAMEDA: Thank you for your testimony. With regards to your questions, we get to ask the questions and, but So if a Commissioner wants to take your question and ask the various parties they can. But you just basically get to make your statements; and I think we got the gist of what you're trying to say. So thank you very much for coming. You may be seated, unless we have any questions for you. Wait, maybe we might have some questions for you. Commissioner Woodward? WOODWARD: Yes, I just had a question. Thank you for your testimony, by the way. It seems to me that you have kind of mixed feelings about this, that this subdivision controls your water but you'd rather not have it developed, is that correct? TANIlVIOTO: No, that's totally wrong. WOODWARD: Oh, okay. TANIMOTO: I am not against development of any kind. My concerns have to do with the health and safety of everybody that's in the area, which happens to be us and them. WOODWARD: Okay. TANIMOTO: They got the water and we don't. We don't have an alternative even. WOODWARD: Well, you've seen the presentation where Mr. Lim and actually Jeff Darrow gave the presentation that they have 38 acres and they're planning on building 50 homes there. Is that a bother to you? TANIlVIOTO: I would say if that is 50 houses more than the plan they originally had it would be because the water allotted and the statement that the other company made at the time was that there would be no changes. And so now you're going to change, my question has what has changed? ALAMEDA: Very good. WOODWARD: Thank you. ALAMEDA: Hold there, you might have some more questions. Commissioner Domingo. DOMINGO: Aloha, Jojo. TANIlVIOTO: Aloha. How are you? 29 ~ DOMINGO: How are you? Good to see you. I only say that because I used to see her on many occasions when, in my other life. Jojo, are you referring to that parcel in yellow, because the Hawaiian Home Lands is just south of that. ALAMEDA: Let me give you a mike, Mrs. Tanimoto, so you can TANIMOTO: This is Akoni Pule Highway. That's the ocean looks like. This side is their subdivision and that's ours where the houses are, the subdivision. This is the mauka side. There's one more on the bottom. And that's probably where the bridge is, where they're trying to fix the bridge. Okay, so my house is right there. I'm overlooking all of this, which has a gate over here, a walkway. The gate is on this side. DOMINGO: So what your concern is is that if any development changes on the mauka parcel, the big yellow parcel that is being entertained, that is your concern at this time? TANIMOTO: Not necessarily. Any development from here down to the harbor, even out to, I don't know, Ouli Subdivision, would be an increase to any of the infrastructure and support system to this whole area which is fire hazard. DOMINGO: That would be your concern? TA~OTO: So any changes any where in those areas would be of concern to us in here, any changes. There's no water, the water stops here, there's no other lines nowheres that can accommodate all of this whole subdivision. The County cannot do it, there's no infrastructure. And the water stops here, there's no water because it comes down the hill from Waimea, yeah. There's no availability of water to continue it to us. So if they're going to build anything and the old owners with this knowledge knew, so they said they wasn't going to do anything else. So if they're going to change anything, what changed so that they can change, they can do what they like, but they're going to hold everybody else stay as is? I'm sure, I don't know, they haven't told me anything. DOMINGO: Okay. You know, the issue at hand is that which is directed toward you know that, okay, towards Kohala you have that blue or green dot, yeah, that's the one we're discussing right now. And the change that's being proposed by the Planning Director is to take away the Rezoning and the SMA Permit. TANIMOTO: Okay. Permit to do something different? DOMINGO: No, it's nothing different. It's something that's been approved over 10 years ago, over 10 years go. TANIMOTO: That's why I said the original-. DOMINGO: The plan has not changed. There's no change to the plan, I'd just like to make that clear to you. TANIlVIOTO: Exactly, that's why I said that you folks seem to understand that any changes should be deferred at this time; and I would ask that you folks continue in that light, 30 until such time that you figure it out. Because the rest of whatever is going to happen is going to be affected, you know, any changes. DOMINGO: Okay. So you'd just like to make it status quo then, same? TANIMOTO: Status quo until such time that something changes. DOMINGO: Okay, thank you very much. TANIMOTO: Thank you. ALAMEDA: I have a question. You're meaning, somewhat to get clear what you mean by the change, change as in more? Cause what if the change is actually less, like less development? TANIlVIOTO: If the changes would be less, if the changes would be less? ALAMEDA: Then are you still concerned? TANIMOTO: I would still be concerned. Because then what other changes outside of that box is going to happen? ALAMEDA: Okay, I hear what you're saying. TANIMOTO: Right now the County of Hawaii is working on the General Plan so the Waimea people are making all of these visionary things and the Kohala people are making all visionary things. But Kawaihae's vision is not included in there. We have been so far at the point where they think, oh, Hawaiian Homes is a state agency so what Hawaiian Homes decides is right or wrong, but we pay the taxes and whatever of it. Where's our input? So any changes would include us. ALAMEDA: Any changes, okay, got it. TANIlVIOTO: Thank you. ALAMEDA: Thank you. Any other questions for our testifier? Very good. Ms. Tanimoto, thank you for testifying today. Okay, now we're going back to the protocol again. So we go back to, right, Mr. Lim, back up again. Fellow Commissioners, you've heard from the applicant, you've heard from the Department, you also heard from a testifier. You have any further questions? Okay, final arguments. Can we start with Mr. Lim. LIM: Well, I guess before we get into final arguments, I had a pending request to continue. I think I heard, I know I have to get some information for Mr. Iwashita, I heard the Planning Director say that he needs to get further information also. So I'll renew the request for a continuance. I think I can work with him in the meantime to scope down the records that we would be submitting to the Planning Commission. I only was doing that to protect the recordin case you decide to go agasnst me today. And so for purposes of the continuance, that's what I would request. I think we could manage the process and the documents a lot better. 31 m . IWASHITA: Mr. Chair? ALAMEDA: Let me just ask real quick and then I'll ask the Commissioners how they feel about it. But I want to ask the Department about how they feel about the potential request for continuance. Chris? YUEN: As I said earlier, I hope the Commission will take this as far as it can today. I'm opposed to a continuance. The information that's being requested is of very little relevance and could easily have been obtained by the applicant before this hearing. It seems to be a stall tactic. I am not requesting any further information. The applicant said no SMA Permit has ever been revoked. I said it has happened. I know it has happened. And no SMA Permit has ever been revoked against the applicant's, the landowner's wishes, I don't think that's of any great relevance that it has happened before. Mr. Lim, it's Mr. Lim who has raised the issue and I'm only testifying in contradiction to that. And I don't know, you know, as I say, where the Commission is at with this matter, whether the Commission can make a decision. But I don't see a need to continue to get evidence that, one, there was a, to get files from a rezoning that happened, couple of rezonings that happened dozens of miles away that were apparently with the consent of the landowner. I accept Mr. Lim's representation that this happened. I think to the extent that that's relevant that's the extent of it. And it's, nor is it necessary to bring in a file to show that at one point or it may be more than one point in the past an SMA Permit whose time conditions had expired was revoked by the Planning Commission. ALAMEDA: Okay. I would like to ask at this time Commissioner Iwashita, cause he had a request for some information. I don't know where you might be at with that, Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. My last question of Mr. Lim just clarified forme and then I believe made the record, that I, as far as that addresses the issue, as I see it raised by Mr. Lim, and that basically Because it's clear on the record as far as I'm concerned now that the applicant was aware as of 2001 as far as all the conditions of the 97-102, as well as the applicant's planning consultant who wrote that letter at that time, I'm satisfied and I won't require any more information. LIM: I guess I would repeat that even the Planning Director, you know, _ understand how this process works from the applicant's side is we go to the Planning Department, we ask whether there are any SMA revocations or Planning Director-initiated involuntary down zonings, we were told no. Now he tells us today that there are at least a couple on either side. That is something that we cannot find out until today. So I think that that's something that's very material to our case. We would request for the Planning Director to produce those document or at least make those files available to us then we can bring to you the relevant documents from those files. Those are especially relevant to our argument of equal protection under the law; and I think those are critical for purposes of creating the record on the SMA revocation and the change of zone down zoning. ALAMEDA: Commissioner Iwashita follow-up? 32 IWASHITA: Well, I guess procedurally, I guess, my thoughts on how to proceed from now is that the request for continuance is by the applicant. The Director does not want a continuance. And so I guess procedurally, I guess, the only motion I can think of would be to deny the request for a continuance; or if there's lack of a motion then it just dies on its own. So ALAMEDA: I would entertain a motion. IWASHITA: Then Imove SIRACUSA: So now I'll repeat my motion. IWASHITA: Go ahead. SIRACUSA: That we deny the applicant's request for a continuance. ALAMEDA: Motion made by Commissioner Siracusa to deny the applicant's request for a continuance. Is there a second? IWASHITA: I'll second. ALAMEDA: Seconded by Commissioner Iwashita. Discussion? Seeing none, staff. DARROW: Thank you, Mr. Chairman. The motion before us is to deny the applicant's request for a continuance. With that I'll take the roll. Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: I'm sorry? DOMINGO: Aye. DARROW: Thank you. Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Woodward? WOODWARD: No. 33 _ _ a DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion passes five to one. ALAMEDA: Okay. All right, now moving right along. Commissioner Domingo, you had something to say? DOMINGO: Is a motion in order at this time? ALAMEDA: Well, I want to make sure first our exhibits, let me just check on procedurally Mr. Torigoe, would you like to help us out, making sure we follow protocol? TORIGOE: Well, there are a couple of things. First of all, let's make sure we have all exhibit requests resolved. Mr. Lim, do you still have outstanding a request for the Commission to accept as exhibits rezoning files of other rezonings, has that been officially ruled on? ALAMEDA: Fellow Commissioners, we have a request for the rezoning files at issue. I think it's irrelevant. As a presiding officer, I' d like to deny that request. Discussion. IWASHITA: These are? TORIGOE: There's no, I'm sorry. IWASHITA: The rezoning ALAMEDA: Commissioner Iwashita? IWASHITA: Sorry. Thank you, Mr. Chair. These are the two prior down zonings that were basically uncontested or consented to by the owners, those are the files you're talking about? TORIGOE: Let's get clear on the record. Mr. Lim, if you can tell us do you have an outstanding request at this point for files to be accepted? LIM: That's correct. In light of the Commission's vote to deny the continuance, I'm going to submit for the record the copies of the documents that I do have on both the John Mitsuda rezoning, File 825, and the State DLNR's rezoning for the puu at Waimea that, I believe, is Rezoning 07-000062. So I will on the record give copies to the Planning Department staff for entry into the record. I have several documents for each sections, so ALAMEDA: Let me check. Mr. Yuen, do you have any obj ection to that? YtJEN: Just let me take a quick look at it. ALAMEDA: Sure. And, Jeff, if that is allowed it will be Exhibits 7 and 8. 34 DARROW: I have one procedural question for Corporation Counsel. ALAMEDA: Sure. DARROW: The motions before us would be within the SMA Permit? TORIGOE: Well, I think we decided this was going to be a consolidated hearing so, which by the way, I don't know that we had a formal, either a motion or a consensus, that this would be consolidated for hearings. And we discussed it extensively. ALAMEDA: We didn't yet. Mr. Yuen, go ahead. Wait, Mr. Darrow, follow-up. DARROW: If it's okay with you, I'll be using the SMA as the master and just placing the exhibits and the motions relative to the proceeding in there, unless it's having something to do with the change of zone or the SMA specifically. ALAMEDA: Uh huh. DARROW: Thank you. ALAMEDA: That sounds good. Mr. Yuen, your feedback on the potential exhibits? YUEN: No obj ection to admitting the exhibits. That's fine. ALAMEDA: Fellow Commissioners, no objections to allowing the exhibits? IWASHITA: No. ALAMEDA: Okay, seeing none. I'd like to admit those exhibits. Is it 8 and 9, 7 and 8? LIM: One of them is to numerically order them in order aver the last letter which was Exhibit 5 from my office. I'll describe what the Exhibit 6 is, and subsequently Exhibit 6 is a September 27, 2006 Planning Commission letter to the County Council on the Jon Mitsuda proceeding. Exhibit 7 is a front page of the notice of public meeting for the Planning Commission's hearing on September 7, 2006. Exhibit 8 is the Planning Department's recommendation on the Jon Mitsuda repeal of Change of Zone Ordinance No. 9b-81. The next set of documents would be related to the Waimea puu. Exhibit No. 9 was going to be Ordinance No. 96-81 which rezoned it from Agricultural A-3a to Single Family Residential - RS-10, oh, excuse me, this I think is the, this is portion of the Mitsuda parcel, yeah, Exhibit 9 is part of the Mitsuda rezoning, sorry. Exhibits 10,11,12 and 13 are going to be related to the Waimea puu rezoning. Exhibit 10 is a June 6, 2007 letter to Pete Hoffinan, Chairman of the County Council from the Mayor Kim. Exhibit 11 is the County of Hawaii Planning Department recommendation on Change of Zone Rezoning File 07-000062. Exhibit 12 is the County Planning Department change of zone application background report in Rezoning 07-000062. And Exhibit 13 is the April 1 1, 2006 Planning Department letter to Peter Young of the Department of land and Natural Resources regarding rezoning of the State parcel. Thank you. 35 . ALAMEDA: This is a proposal, it's 10 to 12, I would like the Commissioners to at least take a look at those exhibits before we formally enter it into public record. And which means that I would like to recess now, take some time to review these exhibits going to lunch and come back at about l o' clock. Any thoughts on that? TORIGOE: Can I just make sure ALAMEDA: Mr. Torigoe? TORIGOE: Okay, again, we probably want to have some kind of formal, either a motion or a consensus on the record to consolidate for hearing these two matters, for one thing. IWASHITA: Without obj ection. TORIGOE: Yeah. ALAMEDA: Okay, Commissioner Woodward. WOODWARD: I would move that we consolidate Items 2 and 3 on the agenda and that when we vote we vote on two separate items, one is the special permit (sic) and the other is the rezoning application. SIRACUSA: Second. ALAMEDA: Okay, motion made by Commissioner Woodward, seconded by Commissioner Siracusa. Discussion? Mr. Torigoe? WOODWARD: Is that good? TORIGOE: That's good. ALAMEDA: Commissioner Iwashita? IWASHITA: Yes. DARROW: Just for clarification, that would be the Special Management Area Use Pernut? WOODWARD: Yes, sir, excuse me. IWASHITA: SMA ALAMEDA: The SMA.. Commissioner Iwashita? IWASHITA: I guess because in my mind, the way I'm thinking about this is that the zoning conditions were not met and one of the conditions of 97-102 is to comply with the SMA Permit requirements, that in terms of when it comes up for a vote it would be easier for me to 36 ~~W.~ . . evaluate and analyze to vote on the zoning aspect of our considerations today; and then followed by the SMA. ALAMEDA: Is there any objection? WOODWARD: None. I'll accept that as a friendly amendment. SIRACUSA: I' 11 second it as a friendly amendment. ALAMEDA: All right. So noted. Jeff, you got that clear what we're going or propose to do? DARROW: No, I'm sorry I missed that. WOODWARD: You'd like me to restate what, it would be two votes, one on zoning to be held first and the second on the Special Management Area Permit. DARROW: And they would be, we have four actions before us. So we have two time extension actions, one for the change of zone, one for the SMA; and we have two Planning Director initiatives, one for the change of zone and for the So we actually have four WOODWARD: Well, part of the motion was to consolidate Items 2 and 3 on the agenda. So that a vote on one affects the other; and they're the same topic. So the vote on zoning comes first, up or down, and then the vote on the Special Management Area Permit. ALAMEDA: Okay, Mr. Torigoe? TORIGOE: Yeah, I think that's probably about as much as you'd want to tie yourselves into at this point. You know, from this point on if the motion passes then you can entertain various, other variations on the thing? ALAMEDA: Let me check with Mr. Lim. Your thoughts on what we're proposing, with the procedures? LIM: No, no position. ALAMEDA: Okay. Mr. Iwashita, you have any other You're okay? IWASHITA: Yes. ALAMEDA: All right, are we ready to take a few minutes of recess? Jeff, can you reiterate the motion before us. DARROW: The motion before us is to consolidate Agenda Items No. 2, which is the Planning Director's initiated actions, change of zone and revocation of the SMA Permit; and Agenda Item No. 3 which is the time extension requests for the Change of Zone and SMA Permit 379 for Kohala LLC. And, again, the motion has been clarified that there will be two votes, one for the Change of Zone and one for the Special Management Area Use Permit. 37 ALAMEDA: Okay. Seeing no further discussion, staff. DARROW: Thank you, Mr. Chairman. Commissioner Woodward? WOODWARD: Aye. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion passes six to zero. ALAMEDA: Mr. Torigoe? TORIGOE: Thank you, Mr. Chairman. Okay, as you go to lunch, there's one thing for the parties and all of you to think about, and I want to mention that as you look at the possibility of the structuring of your voting, Mr. Bancroft came up and asked me an interesting question, which was basically would it be possible for there to be a vote on the rezoning, which would go to Council, and then to continue the SMA Permit matter to see what happens at the Council because, you know, the SMA matter really ought to be consistent with what happens at the counsel. And I'm going to be looking at that over lunch, but I just wanted to raise that for the parties and you all to think about. ALAMEDA: Thank you for your insight, Mr. Bancroft, very good. Seeing no fiurther objections for a recess to review some of these documents and to break for lunch, I want to adjourn and comeback at 1:15. Thank you. RECESSED The Chair called a recess at 11:50 p.m. RECONVENED The meeting reconvened at 1:20 p.m. 38 ALAMEDA: The Hawaii County Planning Commission now returning to order. All right, thank you public for your patience. Moving back to where we started or where we left off. We did review the documents. I' d like to ask Mr. Yuen and Mr. Lim if there's any other evidence that you' d like to submit for the record. YUEN: Chris Yuen, Planning Department, no. ALAMEDA: Okay. Mr. Lim? LIM: Steve Lim for the applicant, nothing that we've not already requested be entered into the record. ALAMEDA: I'm thinking of if there's any other procedural issues that we haven't considered, I want to ask Mr. Torigoe. TORIGOE: No. I think at this point I just would ask the parties if there are any other procedural issues or obj ections to the procedure that we've followed that we need to deal with it at this point before we go into adecision-making mode. LIM: For Kohala LLC, of course, we have an objection to the denial of the request to continue the hearing to conduct adequate discovery with the Planning Department; and I would like to make an argument at the end. ALAMEDA: Mr. Yuen? YUEN: No, no procedural issues. ALAMEDA: Let me see, in terms of protocol, do we do closing arguments and then TORIGOE: Yeah, you can offer that. ALAMEDA: All right, we'll go with Mr. Lim, and then Mr. Yuen, and then back to Mr. Lim. Correct. TORIGOE: Right. ALAMEDA: Okay, Mr. Lim. LIM: I'll just be brief. Thank you very much, Mr. Chairman and Members of the Commission. The reasons for the Planning Director's down zoning of the property and revocation with the Special Management Area permit are founded upon his beliefs that this is not the right use of the property, I think was his words, that there are visual impacts that are going to come off the proj ect, and that the density is such that it shouldn't be continued. I think the starting point for the County Planning Director and the applicant is different. He's treating the starting point of this discussion as if the lands were in the State Land Use Agriculture and zoned Ag-5. I think it's critical for our purposes to stress to the Commission that we do have an existing Zoning Ordinance and existing Special Management Area Permit, albeit the time conditions weren't met. But that is not any different than numerous other time conditions that 39 you've allowed to move forward. As I stated before on behalf of the applicant, the time condition issue can be addressed by the Planning Commission on the SMA and the County Council by revising and updating the conditions of approval and not taking away the entitlements, which as far as we know hasn't occurred at least in the last 8 years. The precedent I think is very dangerous. At this point in time any property owner is subj ect to a petition by the Director for an involuntary rezoning or revocation of a permit; and this is in light of an existing Special Management Area Permit and a Change of Zone Ordinance which both addressed the voluntary downsizing of the project from approximately 110 total possible units to 50 units. And the direct terms of the Special Management Area Permit No. 379, it says that the proposed development is "consistent with the County General Plan and Zoning Code." I'll paraphrase some. The average density relating to the 50 lots over the 38 plus acres would amount to 1.5 units per acre; therefore consistent with the urban form depicted on the LUPAG Map for the General Plan for this area. The visual impacts along the coastal viewplane and open space of the development will be somewhat diminished as the site is located makai of the Akoni Pule Highway. To mitigate these concerns there will be design guidelines to ensure the project when fully developed will only minimally affect coastal viewplanes. Covenants will be developed to restrict structures to certain sizes, building pads, envelopes, colors, materials, etc., to minimize mauka/makai viewplane, impacts from the highway, as well as to minimize excessive alteration of the area's natural terrain. The potential for retaining the regional vistas will still exist. These are statements directly out of an existing SMA Permit, and the record in the Change of Zone is going to be very similar. The applicant feels that the County is inappropriately attempting to rezone the property and revoke the SMA Permit; and they're doing so without any change, and I'd like to stress this, without any change in the official County of Hawaii policy on the General Plan for this area. That, if that had happened, I think we wouldn't be here today; but that didn't happen. The only change that we got was the May 7, I think it was, 2007 letter from the Planning Director saying I'm taking your zoning down. To us it's a denial of equal protection and we think it's going to be a taking. I think that the issue can be better handled in terms of how the development comes down. As the Planning Commission has done in numerous cases before on these time extension requests, you work with the developer and the Planning Director to develop conditions of approval that address any updated concerns. I'm not aware, as I said before, of any time extension requests that got denied that would essentially take away the zoning or the SMA Permit for our proj ect. So again, I guess, I close with we think that the County General Plan which is one of the laws of the County of Hawaii and the existing SMA Permit and Change of Zone are fully supported by law and that absent any change in those planning and legal documents that the proposed down zoning is inappropriate. Thank you. ALAMEDA: Thank you, Mr. Lim. Mr. Yuen, closing arguments? YUEN: I'll try to be brief. If this were a situation where there was no strong public policy reason to change the decision that had been made by the earlier zoning ordinance we would probably recommend a time extension as we've done in many cases in the past. But I think we pointed out what's different about this one, and there has been a change in the last 40 dozen years or so. We've seen a great deal of shorefront development on the island, we've seen a great deal of negative effects of that. And we have an opportunity here, and we're not saying that this is an area that we're going to keep open and we're going to take all value away from the owner, but that we can make it a more open area, we can lower the density, and we can take this opportunity. The applicant's argument is essentially that zoning goes on forever, even though there are time conditions that are supposed to be met and even though the ordinance says that we can do exactly what we're proposing to do right here. There is one point that I think is a small point of misunderstanding by the applicant, that they could have done a denser project under the zoning. Although numerically the RS-15 zoning would permit more units, the zoning ordinance always limited the project to 50 units. That was in the rezoning ordinance. Possibly it allows a lot size of 15,000 square feet but it does have a 50-unit limit. And finally on the question of the General Plan, although the General Plan may have not have changed, there axe different points of emphasis in the General Plan. And the community and people making a decision on land use projects like yourselves as the Planning Commission, like the County Council, like myself as a Planning Director, can decide that the times call for a different emphasis. In 1997 there was one emphasis. Today, 2007 really with what we're seeing in the island the emphasis really should be on protecting and preserving what we have, particularly in the crucial shoreline area. ALAMEDA: Thank you, Mr. Yuen. Mr. Lim, any final responses? LIM: I think that the limitation to 50 lots in both the SMA and the zoning was a reflection of the Planning Commission and the County Council's belief that that level of development on this particular zoned property would be sufficient to protect the cultural and visual impacts and the General Plan criteria. So we believe that that decision was made and that it's more appropriate for the Planning Commission at this point in time to enact updated conditions of approval rather than to revoke the zoning and the, I mean, excuse me, to recommend down zoning and to revoke the SMA Permit. Mr. Yuen talks about different emphasis between 1997 and 2007, but that's just his statement. I have to rely on the law, and the General Plan established the criteria for this project. It was found in the SMA. Permit that it is consistent with the County General Plan for 50 residential lots; and that the failure in 2005 of the County to reclassify this particular property down to Open or Conservation on the General Plan will, is indication that this property should remain as presently zoned. I think that we would like the opportunity to work with the Planning Department and the Commission to make this project move forward. We've finished the archaeological studies to enable us to do the lotting and that would have been our next step towards moving towards development of this project. I ask for your support. Thank you ALAMEDA: Thank you, Mr. Lim. All right, Fellow Commissioners, I believe, before I close the hearing, are there any final questions that you might have for either Mr. Yuen or Mr. Lim? Okay, seeing none, do we need to make a motion to close the hearing? TORIGOE: You can close it. 41 ALAMEDA: All right, if there's no objections to closing the hearing at this time, I'd like to do so. Seeing no objections, the hearing is closed. Okay, moving forward, I'd be open to entertain a motion, or if you want to discuss first that's fine. Commissioner Iwashita? IWASHITA: Yeah. So we're proceeding with the zoning first and the SMA second? Is that still the procedure we're going to follow? ALAMEDA: That's correct, unless, that's correct. IWASHITA: And we'll then address both agenda items, the zoning aspects of both Agenda Items 2 and 3 ? ALAMEDA: That's correct. IWASHITA: Okay. Then I move that Kohala LLC amendment to Change of Zone Ordinance No. 97, that SIRACUSA: Could you speak louder, please. IWASHITA: Oh, I'm sorry. Okay. My wife usually tells me the opposite. I move that Kohala LLC amendment to Change of Zone Ordinance No. 97-102 (REZ 866) be, can we do both together, be denied and then approved? ALAMEDA: Mr. Torigoe? TORIGOE: Yeah, I think you could do that. Just going in order from Items 2 to 3, basically you're taking 2(a) and 2(b), I think, along with 3(a). So if you're basically looking for a negative recommendation to Council on 3(a) and a favorable recommendation on 2(a) and (b), is that what you're doing? IWASHITA: Yes, yes. Okay, so I can do two. Start all over again, Jeff. I move that the Planning Commission forward a favorable recommendation on Initiator Planning Director Change of Zone Applicationfrom RS-15 to RA-S and we forward a negative recommendation on Kohala LLC amendment to Change of Zone Ordinance No. 97-102 (REZ 866). SIRACUSA: Second. ALAMEDA: Does that include 2(b)? IWASHITA: I'm sorry? I'm missing something? ALAMEDA: Does that include 2(b)? IWASHITA: Yes. ALAMEDA: Okay. Is there a second? SIRACUSA: Second. 42 ALAMEDA: All right, motion made by Commissioner Iwashita, seconded by Commissioner Siracusa. Discussion? Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. ALAMEDA: Sure. IWASHITA: Essentially, I support the Director's position in that this is 2007, it's not 1997, that the, you know, in my two years or so on the Commission the concern about the impacts of all these shoreline management developments has been a continuous and genuine concern on the part of this body and that we have taken several actions, you know, to protect, our job is to protect the environment and implement the General Plan. And I believe that in our taking this particular action that we will be implementing the General Plan. And in that regard I disagree with Mr. Lim in that the General Plan somehow supports his position. The General Plan clearly directs us to take into consideration the environment and adverse impact on the environment, and viewplanes, and so forth. And at this point given the applicant's failure in the last ten years to comply with the time requirements of 97-102 that that is not the Commission's fault, that is not the County Council's fault, that's is not the Planning Department's fault. All of the failure on the art of the a licant is basically the applicant's responsibility. And in failing to p pp meet up to that responsibility, Idon't think that an argument can be made of equal protection or loss of rights, and so forth. So that is the basis for my making the motion and supporting this motion. ALAMEDA: Commissioner Siracusa and then Commissioner Domingo. SIRACUSA: Yes. I have several points I want to make. I have notes all over the place here. The progress report that was submitted on 2001 and the year when the five years was up for the plan approval, the final subdivision approval to be submitted, that was 2000, a year before. In other words, the new owner had ample time in order to file a request for an extension, if that new owner had been exercising due diligence. The delay that was due to State Historic Preservation Division, obviously there was a delay that was not the fault of the applicant; however, the applicant knowing that there was a delay, that things weren't moving according to the preferred schedule, had an opportunity at that time to apply for a time extension. And it would have been a valid reason and could have been granted; however, the applicant did not do so. By default through applicant's failure to act, they are in a sense giving consent to the down zoning. It's just like if you are called to, you know, called to answer a charge and you don't , show up and they file a default judgment against you, you have no say after that. You've given up your rights by failing to show. And, in a sense, it seems to me that that's what the applicant has done here. So it's not a case of without consent or without the applicant's request. The applicant by failing to file an extension literally waived that right. Finally, no, not finally, and ultimately, the applicant mentioned that there were no testifiers today to testify against his request for a time extension. But by the same token there were no testifiers today to testify in favor of his request. So I think that argument just doesn't hold any water. And last but not least, between '97 and 2007, that's ten years, and all of us who live on this island have seen dramatic changes in ten years. We have seen huge population leaps, go through 43 i birth increases, natural population increases, and in-migration. We have seen, you know, what happens in areas where the traffic j ams, there didn't used to have to be traffic j ams like that in Kona, you know, in Hilo or in Waimea, and we have them now. There have been a lot of changes, including Senate Concurrent Resolution179 and 146 in 2001. The General Plan which was a new General Plan was put through, there have been concurrency resolutions coming through the County Council and at the Mayor's request, and the Community Development Plan. And I think that all those changes in the intervening years argue that the situation has changed dramatically and requires a different response than the Planning Commission gave originally back in `97. So I am going to vote in support of the Planning Director's Agenda Items 2(a) and ALAMEDA: Thank you, Commissioner Siracusa. Mr. Domingo? DOMINGO: Thank you, Mr. Chairman. I speak against the motion. And I do so with strong feelings with regards to the General Plan which more than likely is known to be the sacred document in the realm of planning and, along with that, with the zoning that is in place, and with the SMA Permit that was approved for this particular development. what this tells anyone in this audience and those who own property that at any time there is a feeling among some individuals to down zone their property and to prevent them from improving it and developing it, you know, it's something that can be done to them also. That's a scary part. That's a principle and the concept that we're looking at today. This zoning was granted in 1997, the County Council, the ultimate body which determines General Plan Amendments and zoning, decided at that time that this is what is best for this particular area. And they have been aware of that and they have not initiated any zoning. If there was any change in the minds of the County Council with regards to the density and development of this particular area, they surely would have initiated some rezoning requests to be considered by the public. Just because, just because there have been some changes or drastic changes in the way this island has grown and the direction growth has taken place does not give us license to come up arbitrarily and take away an individual's or developer's right to zone and develop their property. That is wrong. And that can be applied to any one of us inhere with property that is already zoned for development. Certainly you wouldn't want that thought to be in your mind as you live from day to day knowing some day that there will be some individuals who will be taking your zoning away and prevent you from developing your land. Now one of the important factors, the overriding factor here today is with regards to concern for density and the density that developments would cause, not only in this particular instance but in other places. And as I've indicated earlier today, you know, I would be more concerned about development on Alii Drive in Kona with regards, as it pertains to density. But today we're continuing to entertain applications for SMA Permits which would permit them to develop their property and increase the density on Alii Drive. The zoning to those properties were granted years ago, 10,15 years ago, but it has come to a point at this time that they feel that it's possible for them to develop and improve their property and provide for other units because the market is there. You know, there are many factors I think we should consider in developing one's property. And I think this developer in this particular case has gone through the aches and pains of deciding what to do, whether it be the financial aspect of improving or developing a property, or whether or not the market is ripe to go ahead and develop. You know, that's the risk developers take today. But in this particular case, when the second owner took hold of the 44 _ _ . _ property immediately after that or shortly thereafter they went to continue and acquire a study of an assessment of their property with regards to historical sites, burials and all that. And only, only last year did they receive a reply from the Department and the, I think, the consultant. You know, as in the past, as this Commission had entertained issues of revocation of permits, and I mentioned that this morning with regards to a trucking company who had not complied with the request of the special permit and he was, he was assessed as a penalty an amount, probably amounting up to $40,000 or so. Did we go ahead and revoke that permit? No, we told the Planning Director get together with this individual and see what you can do to make things right. I don't think we as Commissioners, you know, we're lay people, we're not planners. We're lay people. I think I'm more akin to the feelings of an individual rather than be more tied in with the documents of legality or not. I'm concerned about individuals and how they think, and how they react and what is really in here, you know. So in that respect we said okay, go back and work things out. To the Planning Director, work things out with the trucking company and see if you can resolve this. And I think there have been some positive results in that respect. I haven't had any report; but I would assume that there has been. You know, I ask this Commission to look at this issue very closely. There's a strong principle inlaid in this action that we will be taking, and that is a person's or owner's right to develop his property. VVe know that in the course of that development difficulties come in a way which precludes them from meeting deadlines and the submission of documents. That comes in the way. I think we should look at this closely and consider an individual's plight here with regards to developing or not to develop the land. If we support the Planning Director's decision, what we'll be doing is taking away this developer's right to develop; and that in the event in the future if he decides to come and apply for a rezoning and ultimately ask for an SMA Permit application, then it will be even harder for him; and that would be certainly unfair for him to go through the hoops as he will have to do if we do take this action today. Thank you, Mr. Chairman. ALAMEDA: Thank you, Mr. Domingo. Any other comments? Commissioner Woodward. WOODWARD: I would agree with most of what Commissioner Domingo has just stated. And there are a couple of things that bothered me about this. One is he's right, we have had numerous occasions where people have not met their statutory obligations and we've always worked with them. In fact, the other thing that bothered me is Director Yuen has more or less said directly that that's really kind of an excuse because, you know, we want to rezone that anyway because we feel that's an inappropriate use of this property. And so we're coming down on him; and that bothers me. And I think it is somewhat arbitrary and capricious for us to say, well, that's the way we feel this property should be used; but anybody else that come up and violates their time requirements or whatever, we work with them. But no effort was made to work with these people. So I'll have to vote against the motion. ALAMEDA: Commissioner Siracusa, anything that you wanted to add? SIRACUSA: Yeah, I just wanted to address two points. One was about the trucking company, and that failure to comply was only about a year in terms of time. This here we're looking at ten years down the line. So I think there's a question of extent, you know. And, also, we're not taking away this company's, this applicant's right to develop. We're just taping away 45 e: _ _ e - the right to develop in a specific way. And, I mean, as Director Yuen pointed out, he can still do a development with 5-acre lots; and that would be allowed. So it's not that we're taking away all his rights completely. We're just revoking a permit that he had the opportunity for, ten years, he had the opportunity to put in an extension request and failed to do so. ALAMEDA: All right. I don't think we need to continue convincing each other. I think we're pretty set in our ways already. I'm ready to vote, if anything. IWASHITA: Mr. Chair? ALAMEDA: Go ahead, Commissioner Iwashita. IWASHITA: I have to apologize to Chair because I'm compelled to say ALAMEDA: Okay, all right. Just keep it brief. IWASHITA: Yes. I agree with Commissioner Domingo that this body cannot act arbitrarily and that we have an obligation to recognize that private property owners do have rights due to them. Those rights aren't unlimited though. That's the whole basis for our land use regulation system. In this particular case, my emphasis is, there's no question that this applicant and the original applicant that got 97-102 passed, that both parties had the opportunity, which we have not taken away and we can't take away because that opportunity was for five years or more, actually up until today. If they had just, either owner had actually taken 97-102 and done the things, gotten the planning done and gotten the final subdivision approval, we wouldn't be here today. None of that is being taken away or, you know, we can possibly take that away. What the applicant is asking is for more time to do those things; and with the passage of time comes change of conditions. And neither the applicant nor this body, I think, can ignore the fact that conditions have changed in the past ten years; and I for one have to recognize that. I think I'm especially or maybe today more sensitive to that because I just got back from lost wages and, you know, I met a realtorldeveloper person there, and in the past five years, you know, Las Vegas has seen the kind of development most places don't see. And, you know, we're not going to see anything like that here. But we are at a point in terms of the development of this island that as the Director indicated in my mind it's almost the tipping point. Either we start taking our environment seriously now and we make decisions that take that into full account and protect as much of it as we can or and, you know, because of private property owner rights that's going to be a challenge we're going to be facing this for years and years to come. And I for one think that, and I believe there is an important principle that we're working on today; and that is to apply the genuine concern that we should have for the environment, especially in our coastal areas, and do take this opportunity as we fully can under our rules and under the law, following the law, and protect as much as we can in this particular case. And then I would urge we continue to do that in looking at other applications. Thank you, Mr. Chair, for your indulgence. ALAMEDA: Thank you. Anyone else compelled enough to respond to that? Very good. All right, we have a motion on the table made by Commissioner Iwashita, seconded by Commissioner Siracusa. Seeing no further discussion, staff? DARROW: Thank you, Mr. Chairman. The motion before us is actually voting on three items of the agenda, Item Nos. 2(a), 2(b) and 3(a). This will include the Planning Director 46 initiating Change of Zone from Single Family Residential 15,000 square feet or RS-15 to Residential-Agricultural 5-acre (R.A-Sa); the repeal of Ordinance 97-102, which rezoned the property from Agricultural 5 acres to Single Family Residential 15,000 square feet or RS-1 S; and, lastly, the amendment to Condition C for Rezone 97-102. So with that, the motion is that they send a favorable recommendation for 2(a) and 2(b) and an unfavorable recommendation for 3(a). Sound clear? ALAMEDA: I got it. DARROW: With that, I'll take the roll. Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Domingo? DOMINGO: No. DARROW: Commissioner Ogata? OGATA: No. DARROW: Commissioner Woodward? WOODWARD: ~ No. DARROW: And Mr. Chair? ALAMEDA: Aye. DARROW: The motion does not pass three ayes, three noes. ALAIVIEDA: All right, Mr. Torigoe, what will be the next step in this process? TORIGOE: As you know, on rezoning amendment matters, let's see, this is interesting because part of it is initiated by the Director and part is initiated by the property owner. Something that is initiated by a property owner, you have 90 days after receipt of the application, unless a longer period is agreed to by the applicant to get a decision of five votes; and if that fails then it's considered an unfavorable recommendation. On the matter that's initiated by the Director, there should be a decision within 60 days after receipt of the amendment. And if the Commission fails to act within 60 days then the action is considered as unfavorable by the Commission. So staff, I suppose, first we should ask if you can confirm to us that this can be put back on a Kona agenda within 60 days of the transmittal to the Commission from the Director. ALAMEDA: Try and see what the calendar allows for. Phyllis? 47 _ ~ ~ _ _ FUJIMOTO: ~ Yes, we do have a scheduled August 31St date in Kona. We are not sure about a September meeting because of a conflict. ALAMEDA: August 31St. Does that make it within the 60? FUJIMOTO: Yes, it would. We could put it on the August agenda. ALAMEDA: Okay. TORIGOE: So, yeah, unless someone comes up with some other form of a motion that maybe five votes could support, that seems to be what you should do with the rezoning part. The SMA part you have not touched yet but it seems like, again, you know, it seems that it's going to be a split vote. Now on that one the rules are a little different. Your Rule 9-11(f), that's on page 9-16 of your rules, it says that within a reasonable time not to exceed 30 calendars days after the conclusion of the hearing or a longer period as may be agreed to by the applicant then you should render a decision, again requiring five votes. If you fail to render a decision to approve or deny within that 30-day period, then the request shall be considered denied. The applicant can also request the authority to defer action, but that requires a majority vote of the Commission; and if the authority fails to render a decision to defer the action within that same time limit, that request is considered denied. So basically we start, it starts with you closed the hearing today, so you have 30 calendar days in which to make a decision. Staff, can you tell me if we will be, is August, oh boy DARROW: August WOODWARD: Mr. Torigoe, if I might make a suggestion, from what you just said, it's or a later date if agreed to by the applicant. Perhaps if we vote to defer action, if it's all right with the a licant's attorney, we can consider both those matters at the August 31St meetin even pp g though that's beyond the 30-day limit. TORIGOE: Right. I think that's within your authority. ALAMEDA: Can we ask Mr. Lim? LIM: On the Planning Director's initiated Change of Zone application on Agenda Items 2(a), I guess 2(b) and 3(a), excuse me, 2(a) and 2(b) for agenda items, the applicant cannot stipulate to extend the time limit. ALAMEDA: Was it the 90 days, Mr. Lim, or the 60? LIM: That's the 60-day time limit in Planning Commission Rule 11-3 (c)1., Capital Bravo. TORIGOE: Okay. But for the August 31 St meeting, I'm sorry, what was the date? DARROW: August 31St 48 _ _ _ _ .m ~ _ ..M _ u r TORIGOE: Yeah, August 31St meeting. DARROW: So we're within the 60 days. TORIGOE: That's still within 60 days. DARROW: I think the issue is the SMA application. TORIGOE: Right. LIM: Could I ask a point of order as to when the proposed amendment was initiated by the Director? I'm not able to tell. Was it the May 7, 2007 letter to the applicant? YUEN: I think the wording is 60 days from the transmittal to the Commission. ALAMEDA: Would that be today? TORIGOE: Let's see. It says 60 days after receipt of the amendment from the Director. o LIM: For procedural record purposes, can you tell me what date that was? DARROW: That would be July 11, 2007. IWASHITA: That's the date of receipt by this body? DARROW: That is the date that we sent out the background and recommendations to the Planning Commission; and that's the date that we can verify that it has been submitted to the Commission. IWASHITA: Mr. Chairman, my concern is that, you know, we get it for preparation purposes but we don't officially meet as a body until today and to considerate it. So I would say that we got it today. WOODWARD: Mr. Chairman? ALAMEDA: Sure. WOODWARD: In any case, it's within 60 days. Even if July 11th, August 31 St is still within 60 days. The question is whether Mr. Lim is willing to accept a vote on the Special Management Area Permit at the same time, the 31St, which would require an extension beyond the 30 days. ALAMEDA: Mr. Torigoe? TORIGOE: Well, I suppose another thing you could do would be to reopen the hearing, you know, to allow for any further evidence that you may want to ask the parties for and 49. that would extend, well, that would basically extend the trigger because the 30 days begins from the time that you conclude the hearing. But that's up to you. SIRACUSA: Excuse me, we have already have voted to consolidate the matter so I don't see any need to reopen the hearing. But I could see where we could decide to take the vote on the SMA Permit and then let the time frame play out from there. ALAMEDA: Could we ask the applicant if he would be willing to consider the SMA Permit on the 31St? Is that an option? TORIGOE: Yeah, that's what I think was being discussed, is that the applicant may request the authority to defer action, and that would extend the time. LIM: I'm not clear on the time frames under the rules for the SMA Permit. Maybe you can enlighten me. TORIGOE: Yeah, I'm looking at, on my version, well, that's Rule 9-11(f) and in the current version that's page 9-16. And it is kind of a convoluted rule but it says, first paragraph talks about the 30-day deadline or within a longer period as may agreed to by the applicant. LIM: Oka so that means that within 30 calendar da s after toda ,Jul 20th, Y~ y Y y you have to make a decision one way or the other. TORIGOE: Right. LIM: And the next Planning Commission meeting is August 31St? TORIGOE: In Kona. DOMINGO: Mr. Chair? SIRACUSA: I have a procedural question. TORIGOE: Commissioner Domingo had a question. DOMINGO: It's aside from determining the time when it should be considered, I have another clarification. ALAMEDA: Okay, procedural question, Commissioner Siracusa. SIRACUSA: Yeah, is there a difference in what would happen afterwards if someone made a motion to approve the applicant's request to extend time on the final approval for the SMA and we split three-three the way we did on the other vote? Or if we did it just on the Planning Director's and we still had the three-three split, would the results of how it plays out afterwards be the same or different? ALAMEDA: Mr. Yuen? 50 m _ _ . w,r,,,~,~~ YUEN: I'm going to answer that question indirectly. But let me first make a recommendation, that the Commission do take a vote on the Planning Director's initiative to revoke the SMA Permit and the applicant's request to extend it so that there is a vote, so that the Commission had dealt with it and taken a vote on the record. Then at that point it is up to the, and it may be split. I don't ask you to have a lot of debate on it. It may be a split vote. But the matter has been brought to the Commission and the Commission has taken a vote on it. Then let me discuss what happens after that; and that is, and this is for Mr. Lim as well, and I'm not going to engage in gamesmanship on this. Because what is going to happen is that if the time is not extended there is a 30-day time frame to act on either. So the revocation doesn't meet the time frame. His motion to extend time does not reach the time frame. If they do not extend time on the SMA Permit, the time has expired and his SMA Permit becomes defunct. All right. Now you have a split vote today and then the Commission has a, if there's a time extension the . Commission can take a vote again on August 31St. If there's a split vote on August 31St, with neither one being affirmative or not, and if it's due to the lack of there being 9 people here, which is the typical reason, there is a special provision in the SMA Rule that allows for a second vote on that question, one more vote. And if that vote is again split, then both the request to extend, the effect is the request to extend time is denied and the revocation is also denied. SIRACUSA: So what do we end up with then? Because they're opposite? YUEN: You end up with a defunct SMA Permit. ALAMEDA: Mr. Torigoe, you had something? TORIGOE: Yeah, Mr. Chairman, I'm not sure that I would agree, you know, that if there is no decision made by the time that the original deadline for the final subdivision approval is met that you have a defunct permit. I don't know that I would say that the permit itself just automatically expires because, well, for one thing, the language of it seems to indicate that what happens then is that the Planning Director can initiate revocation. So IWASHITA: You're talking about the SMA? TORIGOE: Yeah, the SMA. ALAMEDA: Yes, Commissioner Domingo. I know you've been holding the mike for a while. Go ahead. DOMINGO: Just a point of clarification, Mr. Chairman. It's in regard to the vote that we've just taken where it was a split vote. Now what does Robert's Rules play in this whole scenario? Because under Robert's Rules if you don't have the majority vote, then the motion is dead. ALAMEDA: That's correct. TORIGOE: Basically, Robert's Rules would come into play if your Planning Commission Rules don't govern the matter. It seems to me the Planning Commission Rules allow for you, for instance, on the rezoning matter, that the rules seem to contemplate that you do 51 make an effort, you know, over the 90- or 60-day period to come to some kind of decision with five votes one way or another. DOMINGO: One way or the other? TORIGOE: Right. ALAMEDA: All right, taking up Mr. Yuen's recommendation that we vote, Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. I move a.s to Item No. 2, revocation of Special Management Area Permit, SMA Use Permit No. 379, that we adopt the Director's recommendation to revoke the Special Management Area Permit. And as to Agenda Item No. 3, requesting amendment to Condition 4, time to secure final subdivision approval, Special Management Area Use Permit No. 379, which allowed the development of a 50-lot Single Family Residential Subdivision, that that amendment be denied. SIRACUSA: Second. ALAMEDA: Okay. Motion made by Commissioner Iwashita, seconded by Commissioner Siracusa. Discussion? Commissioner Domingo. DOMINGO: I understand the basis for this motion, among others mentioned, but I think the primary basis is the nonsubmittal of a request for extension on both issues, and not density or other issues surrounding this development? ALAMEDA: Are you asking, who are you asking that question to? DOMINGO: Whoever can answer that. ALAMEDA: Any Commissioner care to entertain that question? Commissioner Iwashita? IWASHITA: If I may. I make the motion because, you know, as to an SMA Use Permit application, we axe obligated as Planning Commissioners to address the criteria set out in Act 205 which specifically addresses adverse impact of any proposed development on the ocean. In this case, you know, this is the primary reason why we're empowered to require SMA Use Permits in property located in the SMA area. So, to me, that further emphasizes my concerns about the environmental issues that have arisen in the past 10 years and that, you know, it's not hard for us to look around to see the degradation of the environment; and the acceleration of the degradation of the environment is rather obvious to me if we continue down the path that we do. So that is a significant change in circumstances as far as I'm concerned and why I support the motion. ALAMEDA: Commissioner Siracusa? SIRACUSA: As the seconder, I would like to clarify why I seconded it. And it is partly what has to do with the 10-year failure to request a time extension and to comply with the 52 conditions. It has to do with the environmental impacts, with the changes that have happened, with the increased density of an area where there has been no concurrency, and all of those issues, really. It's not just one issue. ALAMEDA: Thank you, Commissioner Siracusa. Mr. Domingo? DOMINGO: The SMA permit process we use to determine the impact, mostly the negative impact of the proposed development along the shoreline, and as Mr. Iwashita said the concerns of the water quality, and protecting the environment, the shoreline environment and preserving all that is there, I can accept that. But using that as an argument to deny the SMA Permit isn't appropriate because if we go along this coast today and then, you know, bringing your attention to the reports by the Corps of Engineers with regards to quality control, it has impacted the waters and shorelines along the coast. Okay, if that is an argument why hasn't the Commission or the administration taken any corrective action with that regard? Now applying that to, again, Alii Drive, the same comment by the Corps of Engineers with regards to the readings of the waters, you know, it is being impacted by the development along Alii Drive and above that; and we're going to consider some applications in the future with regards to those developments. Now I see no recommendation of denial of those permits because of the degradation it has caused on the waters and the surrounding environment along Alii Drive. You know, I'm puzzled by this. IWASHITA: Mr. Chair, just one point? ALAMEDA: Okay, let me just, again, reiterate we may not convince each other but we have one chance. So, go ahead IWASHITA: I understand. ALAMEDA: Commissioner Iwashita. IWASHITA: I just wanted to point out one example to Commissioner Domingo. You know, the D-Bar Ranch application which we got reversed on befuddles me how the Court did that. But that was one case, that proposed development mauka of Alii Drive for what was it,120 units or whatever it was, and this body, that was for an SMA Use Permit; and this body because of the environmental concerns and the cumulative effect of similar developments that we can expect in the future did deny that application. So that is just one example I wanted to raise that this body has acted on those concerns, and that by denying the request for extension in this case that we can be consistent. AL~DA: Commissioner Siracusa. SIR.ACUSA: Yes, just to follow-up with that, is that also certain Commissioners have voted consistently against increasing density in that area on the Kona side; and maybe they were not always on the winning side of the motion, you know, so you couldn't say, oh, the Planning Commission unanimously. But there still has been a concern that has been voiced and voted on accordingly. 53 ALAMEDA: Thank you for keeping it brief. Commissioner Domingo. DOMINGO: I just wanted to mention, you know, speaking of consistency, this body also approved Sun Coast development, an adj scent development ofthe D-Bar Ranch application. And, you know, that's why I said where's the consistency in all of this by the Planning Department and by the Commission. ALAMEDA: All right, points well taken by all of you fellow Commissioners. Nonetheless, we still have to come down to a vote. I appreciate the discussion, that's why we're a 9-member body. Today we have 6 though so we'll see how it goes. Seeing no further discussion or further points, the motion was made already by Commissioner Iwashita, seconded by Commissioner Siracusa. Staff? DARROW: Thank. you, Mr. Chairman. The motion before us is for two agenda items. This would be A ends Item 2(c) which is the Planning Director initiated revocation of Special g Management Area Use Permit 379, that's to approve the revocation; and also Agenda Item 3(b} which is a time extension request for Condition 4 of SMA 379 by the applicant Kohala LLC, and the motion is to deny the request. With that I' 11 take the roll. Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Domingo? DOMINGO: No. DARROW: Commissioner Ogata? OGATA: No. DARROW: Commissioner Woodward? WOODWARD: No. DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion does not pass three to three. ALAMEDA: All right. Mr. Torigoe? Next step. TORIGOE: Well, as we discussed then the rule basically is within 30 calendar days after the conclusion of the hearing, which is today, or within a longer time as may be agreed to 54 by the applicant, then you must render a decision. If you fail to do so, then the request shall be considered denied. ALAMEDA: Okay, any questions for Mr. Torigoe on that? Mr. Lim? LIM: For purposes of the SMA proceedings, at least under my understanding of SMA Planning Commission Rule 9-11F. subsection 1., it's that the Commission within thirty (30) calendar days after the conclusion of the hearing must render a decision. For purposes of the applicant's request to extend the time for Condition 4 under Special Management Area Permit No. 379, we stipulate to a time extension for Commission action only up to and including the August 31, 2007 Planning Commission hearing. ALAMEDA: Mr. Yuen? YUEN: And I believe it would be in order for the Planning Director as the applicant for the revocation to also consent to extend time on the consideration of that up to and including the August 31 St meeting. ALAMEDA: Commissioner Iwashita. IWASHITA: So that applies to both to 2(c) and 3(b)? We're continuing both of those to August 31 St meeting, is that correct? YUEN: Correct. ALAMEDA: Okay, go ahead. IWASHITA: Mr. Chair, then I move that Items 2(c) and 3(b) be scheduled for further consideration by the Commission at its August 31, 2007 meeting scheduled for West Hawaii and that those Commissioners not present for today's proceeding be provided the transcript of the contested case hearing and the relevant exhibits for their consideration. ALAMEDA: All right. SIRACUSA: Second. ALAMEDA: Motion made by Commissioner Iwashita, seconded by Commissioner Siracusa. Discussion? Seeing none, staff. DARROW: Thank you, Mr. Chairman. The motion before us is to continue this matter until the August 31 St West Hawaii hearing. Is that correct? ALAMEDA: That's correct. DARROW: With that I'll take the roll. Commissioner Iwashita? IWASHITA: Yes. 55 DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Woodward? WOODWARD : Aye. DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion passes six to zero. ALAMEDA: Mr. Torigoe, are there any procedural matters that we missed? TORIGOE: Okay, one thing, if we are going to continue for another vote on the SMA matter, which is a contested case matter, the Circuit Court recently informed us that if there are going to be people at the second hearing who have not heard the evidence at the first hearing that there ought to be a form of a decision before the Commission and to allow for exceptions and argument unless the parties waive that. So I'd just like to ask the parties if they would like to have some form of a decision to put before the Commission or whether they would just want to go ahead with the record as it is. The Planning Director has a recommendation in there. One thing we could do is just allow for Mr. Lim to present an opposing proposal for decision, and then allow for the parties to either waive any further action until it gets here, back here, or to set a date to file any exceptions to the proposals for a decision and then come back and argue, or you can waive that as well. LIlVI: I would like to submit a proposed decision and order pursuant to Chapter 91 and we have the opportunity to respond to any of the Director's opposition to that proposed Decision and Order. TORIGOE: Okay. Can we agree to perhaps a submission of the proposal for a decision to be, what's reasonable, within two weeks prior to the August 31 St meeting? More than that? Or would you rather have it three weeks before and then you can maybe a week after that respond if you want? LIM: Perhaps we could make the applicant's proposed decision and order, this is on the SMA case only, correct, due by August 17~` Friday. Is that pushing it too fax back close to the hearing? 56 Y[JEN: The Director's proposed action has been in front of the applicant, and I think the applicant has expressed their obj ections. If they are comfortable with an informal decision that has been resented, I don't then have a problem with the August 17th date for them p to present a formal decision and order. LIM: We're accepting his representation that the papers filed to date are his proposed decision and order, so we'll frame our own. Would the Director then have a chance to rebut? Cause we'd like to have a chance to respond after that if that was the case. TORIGOE: Okay, so what we're hearing now is basically that the Director's recommendations will be used as the Director's proposal for a decision, and that Mr. Lim will file something by August 17th, and that's it for the record, that there will be no further written exceptions. ALAMEDA: Is that correct? YUEN: That's fine. I think that what we should do is simply, you know, he has made his objections to the proposed decision and he can argue them again. I think we should open the hearing to the extent of allowing further argument on that if he wishes and we will argue on August 31St against his, rather than requiring formal exceptions be submitted at some time in the two weeks between August 17th and the hearing. I'm willing to agree to that if Mr. Lim is. LIM: That's fine with us as long as we're able to keep the hearing open to argue on the August 31 St hearing. TORIGOE: Okay, so you're saying you want to have the option to file formal exceptions to each other's forms? LIM: No, I'm okay with just filing one. YtTEN: Yeah, we're agreeing that we would not file exceptions, that he wants to file a formal decision and order, that he will have a deadline of August 17th. After that there will be no further written filing. The parties will simply argue their cases again in front of the Commission on the 31St. The Planning Department will, with the consent of the applicant, rest upon, as far as a formal decision, will simply rest upon what has been submitted; and if the Commission votes to revoke, that will be the decision that the Commission is voting to revoke, as stipulated by Mr. Lim. ALAMEDA: Fellow Commissioners, are there any obj ections to Mr. Yuen's comments.? IWASHITA: Just a clarification, so then when we meet on the 31 St then our choices will be either choose between the two or some, we can make some changes on one or the other? TORIGOE: Right. IWASHITA: That's fine. 57 ALAMEDA: Okay. Seeing no further objections, that's how we will proceed. LIM: Thank you very much. ALAMEDA: Thank you. The discussion ended at 2:31 p.m. Respectfully submitted, ATTEST: /s/ Sharon M. Nomura /s/ Noriko Sauer Sharon M. Nomura, East Hawai `i Secretary Noriko Sauer, West Hawai `i S ecretary 58