Loading...
HomeMy WebLinkAboutCOM 0277.001 1998-2000 tVMy ilk Stephen IC Yatnashiro Mayor .J:; •hjh.o,.N~'y~ ~LIIIYiI~~1 II~ ~Mi1T~ItT PLANNING COMMISSION 25 Aupuni Stmt, Room 109 • Wlo. FLwvii %720.4252 (808) %1.8288 F~a (808) %I-%15 May 11, 1999 Honorable James Y. Arakaki, Chairman and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, HI 96720 Dear Chairman Arakaki and Members: Change of Zone Application (REZ 98-28) Applicant: Nanawale Estates Co. Request: O to RA-la and A-Sa Tax Map Key: 1-4-59:77 Attached is the Planning Commission's April 16, 1999 hearing transcript for the above subject rezoning. Please note that the hearing transcript is also for Tax Map Keys: 1-4-47:87 and 1-4-76:38 as the Commission took these up simultaneously. Should you have any questions, please feel free to contact Alice Kawaha of the Planning Department. Sincerely, ~ . vl.~,,,, i - Sharon M. Nomura, Secretary Planning Commission Att. Comm, No. ~ ~ ~ • D~ r File No. F' Ref. To; P C ReL Date Y PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT April 16, 1999 A regulazly advertised hearing on the applications of NANAWALE ESTATES COMPANY was called to order at 9:16 a.m. in the County Building, Councilroom-Room 109, 25 Aupuni Street, Hilo, Hawaii, with Chairman Leonazd Tanaka presiding. PRESENT: Leonard Tanaka Richazd Baker, Jr. Geraldine Giffin Lin McIntosh Mildred Mosher James Souza Grant Togashi Fred Giannini, Deputy Corporation Counsel Casey Yanagihaza representing the Department of Public Works Glenn Ahuna representing Department of Water Supply Virginia Goldstein, Planning Director Alice Kawaha, Staff Planner Susan Gagorik, Staff Planner Phyllis Fujimoto, StafYPlanner And approximately 10 people from the public in attendance TANAKA: Commissioners, the next three we'll be hearing the next three applications simultaneously. This has to do with Nanawale Estates Company on a change of zone. On the first one for TMK Parce187; it will be a district classification from Open to Residential and Agricultural (RA-la). This is for approximately 10.995 acres. The second one will be for Pazcel No. 77, district classification from Open to Residential and Agricultural (RA-la) and Agricultural (A-Sa), and this is for approximately 23.203 acres. And then the third one will be Parce138, change of zone from Open to Family Agricultural (FA-la), and this was the one that was previously requested Residential and Agricultural (RA-1 a), involving 9.328 acres of land. And then we'll vote on them individually. BAKER: Mr. Chairman? TANAKA: Yes, Commissioner Baker. BAKER: I'd like to have a short recess before we go into the agenda items. TANAKA: Okay. Do we have a second? TOGASHI: Second. GIFFIN: Second. TANAKA: Okay. We're going to take aten-minute recess and reconvene why don't we make it at 10:00 then, reconvene at 10:00, okay. RECESSED The Chairman called a short recess at 9:47 a.m. RECONVENED The meeting reconvened at 10:00 a.m. TANAI{A: The meeting of the Planning Commission will now come back to order. We do have people, some people signed up, so just to keep i[ orderly, we just want to remind you that you will be given ample time to bear your testimonies on this issue. And we would like to keep it orderly, so if you have anything to say, please stand or raise your hand to be recognized, okay, if you're not already on our sign-in list. Okay, Phyllis. FUJIMOTO: Thank you, Mr. Chairman. At the last meeting, the Commission voted to continue the hearing to allow the Applicant to work with the community and to amend their original request for the third property up here from the original RA-la to an FA-la. The amended Background and Recommendation have been issued. The Director has issued a favorable recommendation on that third parcel. I'd just like to point out, also, that the favorable recommendation for these two parcels still stands. Right now, I'd like to make a few corrections to our report, just minor typographical errors. On your Amended Background, it says, where it says change of zone GOLDSTEIN: What's the date on those on that Amended Background? FUJIMOTO: Okay, it's 4/8/99. TANAKA: Agenda Item No. 4, yeah? FUJIMOTO: Yes. GIFFIN: Can you wait a little while? FUJIMOTO: Sure. I noticed that some copies had the very top, where it says Change of Zone Application 99-29, and some had 98-29, so the correct one is 98-29. TANAKA: So it's 98.29? 2 FUJIMOTO: Ninety-eight dash twenty-nine. Okay, and also in your Recommendation, on the Conditions of Approval, where you have all the Conditions A, B, C, D, E, it says G, it should be F. And that's all. TANAKA: Okay. Commissioners, any questions? MCINTOSH: Just so that I want to make sure I understand. This one dated 4/8/99, we should correct `99 to `98, is that correct? FUJIMOTO: I'm sorry? MCINTOSH: On the Background Report dated 4/8/99, that's a typograph `99 is a typographical error. FUJIMOTO: Yes. ' MCINTOSH: It should read 98-29. FUJIMOTO: Ninety-eight dash 29, yes. MCINTOSH: Okay. TANAKA: Okay. Commissioners, any further questions for Ms. Fujimoto? Commissioner Togashi. TOGASHI: Yeah, I just have one question. Would Staff be able to tell me how big Keone how do you pronounce that, Keone the new school out in GIANNINI: Keonepoko. MOSHER: Poko. TOGASHI: Keonepoko, how big that school area is or building area? FUJIMOTO: You know, I'm not too sure. TOGASHI: Would that be a 12-acre FUJIMOTO: A minimum will be a 12-acre for a TOGASHI: Twelve-acre site. FUJIMOTO: Elementary site. 3 TOGASHI: Also. FUJIMOTO: Yes. Yeah, so I would assume it's bigger than 12. TANAKA: Okay. Does that answer your question somewhat? TOGASHI: And I just forgot. There was another question I had with regard to catchment systems. Would you be able to tell me schools which utilize a catchment system, and are they humongous systems like a reservoir or Would you know that or perhaps maybe Alice could FUJIMOTO: I don't think we have the answer. MCINTOSH: The Water Department is here, aren't they? PUBLIC: The old Kalapana School had water catchment. KAWAHA: I don't I didn't go into research on that, and ['m not too sure if like Malamalama School in Hawaiian Paradise Park is on any kind of water or if it's reservoir type of I'm not too sure. TANAKA: Commissioner Togashi and Staff, maybe we can ask Mr. Ahuna. Is he still here? Is he back there? FUJIMOTO: Oh, no. TANAKA: No? KAWAHA: No. TANAKA: Okay. We can come back to that, Mr. Commissioner Togashi. Okay, any further questions for Staff? If not, would the Applicant or its representatives please come forward. And if we could swear you al] in at this time. All of you that are wishing to testify on this agenda item, please raise your hand. And do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? TESTIFIERS: I do. TESTIFIERS: I do. TANAKA: Okay. Thank you. Okay, would you state, for the record, your name and address, please. 4 LIM: Thank you, Mr. Chairman, Members of the Commission, Stephen Lim representing Nanawale Estates Company. Thank you, again, for heating our rezoning application. What I'll do is just do a short summary and tell you where we're at. You should have received a copy of our colored map. One of the big issues last time was, you know, how much park area is in the Nanawale Estates Subdivision. As you can see from the exhibit, the proposed rezoning parcels are in light blue, the yellow shows the designated park sites which are allowed pursuant to the CC&Rs for the subdivision, and the mustard is the other properties that were conveyed to the Nanawale Community Association by the developer. All yellow parcels and the mustard parcel have been conveyed to the Nanawale Estates Community Association for their use pursuant to the CC&Rs. The mustard parcel towards the bottom of the page is the one that has the recreational facilities and the community center, if you're familiar with that area. What we are doing, essentially, is to comply with the CC&Rs with respect to limiting the use for all the proposed lots to single family residence purposes, and we've sent in a letter to that effect that's in the file. We are also volunteering, if the Commission requires it, to file declarations with the Bureau of Conveyances against these properties that are subject to the rezoning, which would also limit them to single family residence purposes, with the exception of the school site, of course. That school site is 12 acres minimum, per the DOE requirements. The overall tenor of the rezoning applications for all three properties are that there is approximately 4,300 lots in this subdivision. It was developed 30 years ago, and we still only have approximately 10% build-out; there's approximately 430 building permits issued for structures in the project. At the time of the development of the subdivision, the park dedication requirements did not apply, however, the developer did provide in excess, there's about 27.56 acres of park sites throughout the subdivision. As you can see from the exhibit, they are relatively well placed. We think that they are adequate for the proposed uses. We think that in light of the slow build-out of the subdivision, that the rationale for providing the parks that we have already done matches that of our request to remove these three parcels from the Open District to the RA and FA Districts, plus provide the 12 acres site for the private or public school, whatever the Association can work out. I think Ms. Ruth Hadaller is here as the president of the Association to give you some background on their developments of park sites within the subdivision and, also, she could give you some background on their contact with the Department of Education, which I understand is basically that the DOE has decided not to develop a school site in the near future within this subdivision. So we think that in light of the slow build-out of the area and the adequate provision of park areas within the subdivision, that the three rezoning applications warrant approval by the Planning Commission, and we would ask for your favorable support. I would stop at this time and ask that the public testimony come on and that I would come back and answer questions that you may have. 5 TANAKA: Okay. Let's see if the Commissioners have any questions for you first. Commissioner Souza. SOUZA: Yes, two things, Mr. Lim. First, on the map that you gave us, colored map, there's two lots that is not colored, 63 and 49. What are those lots? LIM: Sixty-three is two separate lots owned by individuals. Forty-nine is a lot that's owned by the my client, Nanawale Estates Company. SOUZA: By who? LIM: Nanawale Estates Company, the Applicant in this case. SOUZA: Uh huh. And what was the original intent when the subdivision was first opened? What was the original irtent that you left these parcels open which you are attempting to rezone now? LIM: The original intent, as it came down in Units 1 through 4, but the original intent has always been to preserve those for school sites, at least a possibility for school sites. Some of the background on the, you know The CC&R issue, as we discussed last time, is different from the zoning issue; however, as a practical matter, the real impact on the people that live there is that the lots within Nanawale Estates Subdivision are all blanketed by a single family residence purposes restriction, okay. We feel that that is the major protection for them, however, we are also willing to record for these particular lots a second declaration which would essentially use the same language, just to, I think, allay some of the concerns that these lots would be used for commercial agricultural purposes. The CC&Rs say that all lots shall be used, which is mandatory, for single family residence purposes, and they also provide exceptions. However, in these exceptions, some of these lots may be used for multi-family, some may be used for commercial, some may be used for fire station uses, and these particular three lots that we're talking about here today ate listed for school sites. And so, essentially, they may be used for school sites, but they don't have to be. They have to be used, if not for school, for single family residences. TANAKA: Commissioner Mosher. MOSHER: About how large are those little yellow properties for little parks? LIM: They range approximately one and half acres. MOSHER: Okay. Thank you. TANAKA: Anything further, Commissioners? If not, we have four people signed 6 up to testify. Let's ask Mr. Lim to step back, and we have three seats up here. HAZEL: I just wanted to say that we agreed that I might go first so that Marguerita Hopkins, who's visiting from Research and Development, could leave to attend some meeting or work that she has, if that's okay with you. TANAI{A: Okay, that's fine. We have three chairs up here, so we'll take Toby Hazel, Adele Rubin, and Darwin Barve. Okay. As you come up to testify, when it's your turn, please speak into the mike because everything is being recorded, and give us your name and address for the record. So Ms. Hazel. HAZEL: Yes. Hello, my name is Toby Hazel. I GOLDSTEIN: You need to speak in the mike. GIANNINI: Speak in the microphone, please. HAZEL: Is it on? Yes, I guess so. My name is Toby Hazel. I've lived in Hawaii for 20 years. I've owned been a homeowner in Nanawale for the last nine years, and I want to talk to you ORLANDO: Address, Hazel. HAZEL: Address? Real address or mailing address? You don't care. Real address is Lido Lane, which is at the very front of the subdivision, and 2324 Lido Lane, I guess is my number. TANAKA: Okay. HAZEL: So do you want to go on and introduce other people? TANAI{A: No, you go ahead with your testimony. HAZEL: I should go ahead, okay. First of all, I would like to make sure that you have these; I guess I'm supposed to do it now. This is the declaration TANAI{A: You can just give it to one of the Staff Members and HAZEL: If there's extras, could I have them back, please? And also this. Okay. So the declaration TANAKA: Hang onto your mike. 7 HAZEL: Now wait a minute, I gotta get all my papeFS out here. All right. One thing that I wanted to say was that Idid Virginia did call me in last week, or I guess it was last week, I don't remember the exact day that she brought asked me to wme in, and she wanted to hear from me why I wanted to introduce the Kahuwai project. She also wrote me a letter about that. And we also had a little talk about the CC&Rs and the relationship between those things and the Planning Commission. And so what one of the things I want to cover a few things today, but one of the things I want to cover is that even though we understand that Planning cannot, you know, cannot endorse our CC&Rs, we feel that the Planning Department and Commission should not violate our CC&Rs. We feel there's a distinction there. And so that's one of the things I'm handing out to you, has to do with our by-laws. And, unfortunately, somewhere along the line, the articles of incorporation of the Association were deleted from the by-laws, and right now we think it might have happened somewhere right after 1984. The reason why this is important is that the president of the subdivision has called me and made me aware of the fact that the Applicants in this for this change of zoning are members of the Association, that is clear now. They are not only members of their own group, but they are members of our Association and they did sign certain things and promised and pledged certain things, even though they are the heirs. And if you notice in the declaration that I have given you, it's very clear that Mr. Duff, whose name appears as first on these declarations, is very clear that the heirs shall follow these declarations, as well as he, himself, and his partners. And so now we're dealing with the heirs, I believe Nancy Duff. So for Mr. Lim, I got kind of upset when I saw a letter that Mr. Lim wrote to Virginia Goldstein on March 1" of 1999, and I do not have a copy of this, where he claims that he believes that his clients are following these CC&R and all these rules. Well, they must not read the same way that I do because it's saying in these things that the heirs will follow the rules. And in the very beginning it says that all of Nanawale is meant to be residential and B, which I underlined there in highlighter, it says no exceptions. So that's one reason why I've given you a copy of that. I'm also speaking to you today as a member of the Environmental Committee which has the legal right to speak to you about these things; that appears on Page 14 in the by-laws, and they, you know, have the Environmental Committee has the right or persons, I'm not the chairperson of it, but the people in the Environmental Committee have the right to read you the riot act, and so that's what I'm doing today. I'm reading this thing, and I'm also reading the articles of incorporation, which should be in your folder, Article 3, Objects and Purposes, are very clear that this is meant to be a desirable residential community from the very beginning. If you get confused, raise your hand as you're looking at all this stuff. There's a lot of pieces of evidence that have been submitted here. Now, again, for quick history for Ms. Griffin (sic) and Mrs. Mosher, who weren't here last 8 time, I have to say that, you know, myself and my elderly neighbor who could not be here today, have been upset for a number of years because of the number of papaya vehicles that have been entering our subdivision and going off of County roads, through using Lido Lane, the street that I live on, to go to an illegal packing area that's on Forest Road. And I say illegal because within the terms of everything that's writtten, it should not be there, but unfortunately, our president gave a verbal approval without consulting anybody to this man who's doing the packing in this area. And, you know, I don't want to harass TANAI{A: Ms. Hazel? HAZEL: Yeah. TANAI{A: Point out on the map as to the location and the streets that you're talking about, and I'm trying to see if it has relevance to this change of zone applications. HAZEL: So okay. Well, we have no roads on here. Okay, here's Lido Lane. Here's the main highway. GIFFIN: Excuse me, your body is blocking. MOSHER: Can't see. HAZEL: My body's in the way. PUBLIC: Blocking Mrs. Giffin. HAZEL: Here's where you come in off the main highway. And by the way, since we've approved the irradiation plants now, I assume that we're going to have a big jump in all kinds of fruits and all kinds of packing and all kinds of shipping, which is good up to a certain extent, but it is important that we plan how we're going to do this. So here's the main highway. Here's Nanawale Boulevard. This little road right here is Lido Lane, which is and Forest this whole thing is Forest Road along here, which has another entryway down here which is close to the farm lots. However, this road is a big mess down here. One of the suggestions has been that, I mean, I don't know, this road must be part of some private thing, too. I mean, that could be improved and become the Ag exit and entrance into the subdivision which could change some of these concerns. So Lido Lane is here. All these trucks currently, and now as of this morning, are turning off of this road and the guy who's packing is right about there. I'm sorry, I don't know his name. Rodrigues? I can't remember it at the moment, but he's right there. And the relevance TANAICA: Ms. Hazel, what does that have to do with the applications that we're hearing today? 9 HAZEL: The relevance TANAKA: How are you tying it in? HAZEL: Is an existing condition within the subdivision of non-authorized commercial packing, and the fact that Kahuwai TANAKA: Okay, we're not here to hear about any uses that are in violation. If you have or you know of any HAZEL: Yeah. TANAKA: Information of any violations HAZEL: Kahuwai is right here. The whole TANAKA: You can submit that to the Planning Director. HAZEL: The whole TANAKA: Hang on, Ms. Hazel. HAZEL: Yes. TANAKA: I have the floor. HAZEL: Okay. ORLANDO: Excuse me. You do not have the floor. Point of order. Point of order. TANAKA: Sir? ORLANDO: The Chair may not TANAKA: I did not recognize you. I did not recognize you. ORLANDO: Point of order. TANAKA: Thete will be order here. HAZEL: Back it off, dear. TANAKA: Okay? 10 HAZEL: Okay. TANAKA: I'm clarifying here that if you are you just spoke about a violation of something about a packing plant that you thought was in violation of the land use laws. HAZEL: This is residential, this yellow thing. GIANNINI: Excuse me. HAZEL: Yes. GIANNINI: What you were saying is that it's in violation of the are you saying it's in violation of these because it's a commercial use and not residential? HAZEL: I think it's in violation of all kinds of things. I'm sorry I'm not a lawyer. TANAICA: Okay, this is not the body, though. HAZEL: Pardon me? It's not what? . TANAKA: This is not the body to hear or enforce when it's a violation of HAZEL: 1 TANAKA: Your CC&Rs. HAZEL: I understand that. I TANAICA: Or HAZEL: I want to TANAKA: If it's a violation of any HAZEL: Educate you TANAKA: County Codes. HAZEL: I want to educate you as to the circumstance TANAI{A: Ms. Hazel? 11 HAZEL: Of what's happening in our subdivision. And I also have to respond to Virginia's letter, which says that Kahuwai is not in the immediate area of our subdivision. I must protest; it is absolutely in the immediate area of our subdivision, it is right here. And it has even though the EA, the draft EA did not need to be acceptable to anybody because of the environmental people saying over in Honolulu the OEQC or the QUXYZ said that the draft EA didn't they didn't have to make a EA. That draft EA, nonetheless, said that there would be no significant impact on Nanawale Subdivision, even though they would use our roads to enter and leave the subdivision. And I have to call upon Marguerite Hopkins because she is in Research and Development, she is has some sort of control over the leases, she is aware of Brian Nishimura's draft EA, and she needs to talk about this today. And I guess I have to ask her now, Marguerite, is this Kahuwai project, which has been passed already TANAKA: Hang on. We will call the testifiers HAZEL: Within TANAKA: To come up HAZEL: The immediate TANAKA: And question them here on the panel, okay? HAZEL: Pardon me? Within the immediate TANAKA: We']1 allow her the opportunity HAZEL: Good. TANAKA: To come up. HAZEL: All right. Being tight next to us, it is immediately in our area. If they do decide to use the Kehau Road, which is here, as their main route of coming in and out of the subdivision, which is the these are the roads. Actually, they only mention Kehau, they didn't mention Nanawale Boulevard. But unless they're going to airlift these trucks, we must assume they are going to use Nanawale Boulevard, as well. So this does have to do with our subdivision. And even though you've approved this, now the idea of approving these internal areas, I think it's absolutely clear to me that these internal areas going to Ag can absolutely supplement this Kahuwai in the comings and goings of all these trucks and, in fact, we may have once the irradiation thing gets going, we may have a number of areas that begin to go into agricultural and direct, you know, 180 degrees away from what was designated for this subdivision to be, which was a desirable residential area. Now, these papaya people are not going over here where they should be going. Okay, we got 12 plenty of room for them. Go over here, you know. Go out the road over here. We have no problem with that. But they are not doing that. Why? Because they want telephones and water and this other stuff, which they can have over here, because the developer originally said that they were going to put roads and water and they were going to do da-da-da and da- da-da. Even though it's only 10 percent build-out, we don't know what's going to happen tomorrow, you know. Who knows? Saddam Hussein could nuke New York and everybody could move here. You don't know. TANAKA: Ms. Hazel? GIFFIN: Mr. Chairman? TANAKA: Ms. Hazel? GIFFIN: Mr. Chairman? TANAKA: Are you alluding to the fact that the impact again we're looking at the three applications in front of us. HAZEL: Impact. Impact. TANAKA: There's going to be traffic on Kehau and Nanawale Boulevard? HAZEL: Impact. TANAKA: Okay. What we'll do later on MOSHER: Thank you. TANAKA: After you're done with your testimony, is we'll have Mr. Yanagihara come up and give us the input MOSHER: Right. TANAKA: From Public Works. I believe it is HAZEL: Oh, I'm sorry, what is it? TANAKA: A County road. HAZEL: Oh, I'm sorry, what are you going to ask him to do? ORLANDO: County dedicated. 13 TANAIG4: Yes. MOSHER: Yeah. Okay. HAZEL: And he's going to do what? MOSHER: So that TANAKA: We'll have him comment. GIFFIN: Let's move on. MCINTOSH: Comment about the road. MOSHER: On the trafflc. HAZEL: Oh, yeah. TANAKA: About your concerns about traffic. HAZEL: Well, he can comment about the present, but will he be able to comment about the future? GIFFIN: Perhaps. TANAKA: I'm sure he will. HAZEL: Oh, yeah? Okay. So those ate the roads, and right now, we have made testimony about what's going on on this road right here. We have put it into your file. We did do a truck count. Unfortunately, it was before I had a computer, and the truck count that was done by my elderly neighbor, who sat in her front window, has disappeared for some reason, from the Nanawale office, so we do not have that truck count of what's happening on the subsidiary roads. In the meantime What else? I ORLANDO: What are our potentials for packing plants? HAZEL: Yeah. They are they are. As a matter of fact, the Bishop Estate guy absolutely told me that they're not going to allow any structures for packing or anything on here, that Rosehil] or whatever his name is that's a Bishop Estate guy. And I called the head guy, who's the land guy for Bishop Estate, he didn't know nothing about nothing. He was supposed to call me back; he never calls me back. So and I don't have time to write all these letters. I got paper all over my house. My kitchen table is covered with paper, my bedrooms are covered with paper, everything's covered with paper to try to organize this to 14 talk about this. So these guys are not allowing anything up there. This makes these projects prime targets now for some sort of structures and things to help whatever needs to happen because I'm told packing isn't the right word. They have another packing place over by Keaau, but there's some sort of little mini packing word, whatever that word is, that they have to do, and they got to dump all those papayas and things into those big containers. And this guy who's down here, he got forklifts. Matter of fact, the first time I met him, I went down there to kick his butt because he had giant boom boxes playing music down there while they were packing and moving things around with forklifts, and I'm telling him I live right over here and not only do I have to sleep at night but I work in my house, too. I have things to do. And GIANNINI: Excuse me, could I clarify something? The place where the packing thing is, is it the same is it about the same size lot as yours, in the same kind of neighborhood? HAZEL: Yeah. GIANNINI: Okay. And how big would that be, about 15,000 square foot lot? HAZEL: Yeah. BARVE: Eight thousand, I think. HAZEL: Well, 8,000. See, I have a double lot. BARVE: Three lots together. HAZEL: I believe he's TANAKA: Hang on, Mr. Barve. HAZEL: Got a double lot, too. GIANNINI: Okay. HAZEL: I think he has more than one lot. GIANNINI: All right. HAZEL: It's surrounded by barbed wired. I took pictures of it, and I put it into your folders because it really shows I mean, there are things stacked all the way up to the sky, those big plastic things. 15 TANAKA: Okay. I think we got your message HAZEL: All right. TANAKA: On those. Can you move on to the next issue that you might have regarding the applications? HAZEL: So first of all, I have to say that when Phyllis said that Mr. Lim was in friendly working with the community, he hasn't even bothered to give us this map he just handed out to you. Whatever that map is, I'd appreciate if Mr. Lim, before he leaves today, that if he's in such friendly communication with the community, that he give us this new little map that he's made up. And that goes to one of my other handouts that is written, submitted by Bonnie Goodell on the specifications for ultimate build-otit for Nanawale. And even though it took me a long time to understand this, evidently this She's you know, Bonnie told me, oh, that this impact thing from 1989, that's part of Planning, was supposed to give the specifications for ultimate build-out. It never really was adopted, but it's still supposedly a guideline. So, you know, I can't keep all up with all this. It's just a couple weeks ago that Norm, what's his name, Hayashi? [don't know. One of the guys in the Planning, told me that that the reason they don't have to follow that if they don't want to follow that is that it wasn't really adopted. But those still are guidelines. And I came out with a figure of 48 acres that Nanawale needs upon ultimate build-out; and I'm saying today that your decision is not just for the next 10 minutes or the next 10 years, this is for future generations, and it's not just one particular elementary school site. There are other things that this community would need upon ultimate build-out, and you have no way of knowing really when or how soon that day might come, in light of the world as it is. The other thing that I was told by Virginia was that Nanawale, if they if Nanawale wants respect for their CC&Rs and ex you know, bill of rights or whatever they've got, that they have to have a master plan. Well, this is the first anyone's hearing of this, that if you have a master plan, all of a sudden you get respect and that rules will be followed. So I went and I could not do it before this because of Easter, I finally went the first meeting I could present this to Nanawale Board was last Tuesday. I don't know they haven't answered me yet, and I gave them this because this is the thing that has been approved, all right. If this has been approved, I think you guys have to begin to respect whatever the thing is before absolute approval. I mean, you have a process going on now TANAKA: Give us the name of that document so we all know what you're talking about. HAZEL: This is the Hawaiian Paradise Park Community Master Plan, a future vision for our community, prepared by the Community Action Committee of Paradise Hui 16 Hanalike, and was finally adopted, or I don't know if it was when the date of adoption was, this has March 1997. At some point, you know, this thing was approved, and now the Planning people are going to respect Paradise Park. And, you know, to me, this means that there has to be a whole way that Planning begins to communicate with these subdivisions and not just PCC, because Nanawale hasn't belonged to PCC in I don't know how long. These things need to be sent in the mail to people, and dialogue has to begin to happen between these subdivisions and not just say, pooh, you know, we don't deal with anything you have to say or do until you get this thing approved, which nobody knew in the first place. So now it's on the plate of Nanawale Board of Directors, and if they decide that they're going to get ready to adopt it, maybe Bonnie will tell you that today. In the meantime, you know, I really can't stand this, but we don't even have a place in our subdivision where people can see what the heck is going on with the Board of Directors. And I hit the roof when I saw this letter, you know, because again, this was another thing that came up in the meeting when I went to go see Virginia, was that they've got real confused. What? The Board of Directors voted unanimously that they don't want ag in the subdivision? Everyone scratched their heads. Well, I can understand why. I went back and looked at the letter that was submitted by our Board of Directors, and it didn't say anything about the ag. It didn't say nothing. It just said we want you to follow our CC&Rs and just what Virginia told them she wasn't going to do. So I had to call Sharon up. Where is she? There she is, Sharon. I called Sharon up and I said, Sharon, you know, I looked at her summary, and sure enough, right there in the summary it said that Bonnie when Bonnie got up here and testified last time, she said that they unanimously decided they didn't want ag; they would take residential, but they did not want ag. So Sharon was not sure whether she was hearing an echo off the wall or what, and I asked her to retrieve the tapes from that meeting if she has any problem with that, you know. So I would like you to make sure today when you talk with Bonnie that that was the unanimous decision. And we have hundreds of letters now, well, a couple hundred, from all the people who live all over the world, who say that they don't want it either, they don't want it either. PUBLIC: They don't want what either? HAZEL: They don't want ag. They don't want ag. Now, we're going to have another mailing in August, and we want to do a more thorough survey. We want to do a more thorough survey in August because we cannot afford to do a separate mailing on our own, I'm sorry; it costs hundreds of dollars. The next mailing that the Board is going to put out is in August. We are going to do a more thorough survey, we're going to ask more questions about what people want. Because in these documents, in that declaration which Mr. Lim's clients, themselves, made up, there are rules about how to change this thing, and there are voting procedures, and a certain number of people have to vote that they want this, and that includes Mr. Lim's heir and client. So to pretend that he believes it to he otherwise, he'S in a 17 fantasyland. I'm sorry, this is not true. TANAICA: Okay. Any other new issues? HAZEL: So now we're going to go ahead here. Every what else? Environmental Committee, use of Planning Director cannot enforce, Nanawale has master plan, Nanawale Board Directors voted unanimously already, I{ahuwai does impact, Brian Nishimura, immediately adjacent, a draft, Marguerita Hopkins, pesticides. I have a letter here, that's the only other thing. That's our big bugaboo is the one of our big bugaboos is the pesticide. Oh, yeah, and the other thing is the fair share money. We do not understand about this fair share money. We want you to explain this to us today, because it looks as if you guys get a big carrot hung in front of you with this fair share money deal. And the lady that I have to talk to, Barbara Hashimoto, I think her name is, she didn't have time before this meeting to really spell this out to me. She's very busy. I don't have time to explain to you about this fair share thing. It's 7,200 and something dollars per acre, and each one of these acre lots would have to pay somewhere into the General Fund, [guess, and it's supposed to come back to the community. Oh, this is a real catch-22. It's going to come back to our community to give us parks, ha, and other things that we need. So you're going to take with the one hand and give with the other hand, and where ate you going to give it from? Where are you going to give it? And who's going to hold all that money in the meantime? Where is it going to go? Or are you going to slide it around somewhere and then give it to Bonnie? Huh uh, I don't like that idea at all. I'm not happy about that. TANAKA: Ms. Hazel, the impact fees are imposed at the County Council level, not here. HAZEL: Okay, so that's TANAKA: You do have a representative from your district in the audience. I would suggest that when this goes before [he Council HAZEL: Right. TANAICA: In whatever shape or form, that you speak to the Council Members directly. We have no jurisdiction over that. HAZEL: Okay. So, Al TANAI{A: Okay. HAZEL: I empower you to explain this to me. SMITH: Okay. 18 HAZEL: You write me a letter and you explain all this stuff to me. Property tax. All right, the other thing was that Steve also hung this big carrot out about all the property tax that you guys were going to get, and Jon Olson made some comment that I didn't understand about how that was going to be negative anyhow once, I guess, they got their exemptions or something, I don't know. RUBIN: Well, seniors have exemptions. HAZEL: Okay. So the PUBLIC: Everybody, all the HAZEL: All of them. So the last thing I have to say before I shut up has to do with these pesticides, if I can find this piece of paper, because I called all these ag people who are involved in this Kahuwai project, and they not only that I have this whole thing about I don't, sorry, I don't have the money to make copies for you to get this. This is called TANAKA: Use the microphone, Ms. Hazel. HAZEL: Sorry. Okay. This is a thing that Igor Al] right, this is hormones, hormone, metabolism, environment and breast cancer, okay, this is a report here. We know MCINTOSH: Excuse me, but explain to me how pesticides on an adjoining property have anything to do with the rezoning application in a residential neighborhood. HAZEL: All tight. Because you are asking to change these lots to ag, they could be using pesticides right up to the property line of the 534 people that you've had to notify about this change of zoning. MCINTOSH: They've already agreed to put a residential restriction on the lot. HAZEL: They just did that. ORLANDO: No, they haven't. HAZEL: No. ORLANDO: They are asking for HAZEL: Ag. ORLANDO: Agricultural zoning. 19 HAZEL: Ag/Residential. MCINTOSH: Excuse me, but my ears heard Mr. Lim say HAZEL: He just said MCINTOSH: They would agree TANAKA: Hang on. MCINTOSH: To a TANAKA: Commissioner McIntosh. MCINTOSH: Yeah. TANAKA: Go ahead and continue. MCINTOSH: No, I was just going to say I heard Mr. Lim say the developer was more than willing to accept an additional restriction to limit the lots to residential uses. We have to deal with the law here. The law tells us that if the lot all of the criteria meet the land use law, we have no choice, we have to grant the rezoning. So you need to address the issues relating to the law as to why we should not grant the rezoning. And pesticides on an adjoining piece of property have nothing to do with vacant land within the subdivision. HAZEL: Okay. All right, well then I have one last thing to say, and that's that we got plenty of lots, we don't need more lots, okay. We do not need more lots. And Mrs. Duff has, right now, she has 50 to 80 lots under her little domain that she's got up for sale at Pahoa Realty, okay. ORLANDO: Hundred. HAZEL: hundred, thank you, hundred lots that she's got still in her domain, without even touching these other areas. Now, we would like Mrs. Duff to give it up and become a real philanthropist and understand that the original intent of Mr. Kendall was to give these lots back to Nanawale, which he attempted to do before his death. He attempted to do that, and for some idiot reason that excuse me, for some unknown reason, the Board of Directors did not accept this, and we want to try again. We would like Mrs. Duff, the heir, who comes under all these rules, to try again, and we do hope that she'll sell her hundred other lots that she has, and we do also hope that we could negotiate something where she does not have to pay the transfer fees that she's upset about. We understand that she's being she's between a rock and a hard place and that Nanawale Board of Directors has not negotiated with her in the transfer fees, and so we will help her do that if she will help not destroy our 20 subdivision. Thank you. TANAKA: Thank you. Before we hear from the next speaker, just want to remind you that we would like for your testimonies to remain relevant to the application. We have no control over impact fees, we have no control over taxes, we have no control over what's happening in the surrounding lands, okay, so please keep it relevant to the issues on the applications for the change of zone. RUBIN: Do you press this to turn it on? TANAKA: It should be on. RUBIN: Oh. TANAI{A: Speak directly into the mike, and your name and address, please. RUBIN: Okay. Adele Rubin, RR 3, Box 2276, Pahoa. I have a typed statement which I will leave with you, of course, I have a copy. I am Adele Rubin and I live in Nanawale Estates.. I am an active person, presently the president of the Pahoa Senior Citizens Club. I am known in the community and know the community. What I state here represents my opinion but also reflects wishes of most other Nanawale residents. We demand that the open areas in question be left as open areas as promised to purchasers of Nanawale property. All who received maps, either from realtors or escrow offices, saw these on their maps and this influenced them in their purchase. Today a map with these open areas hangs in the Nanawale Association offices for all to see. We deem this a contract between the residents, the developers, and the County. We want to be listened to and serious consideration be given to our demands. Common sense states that there is no need for additional lots with 235 now listed with realtors, most being offered at $2,000 or less. One-half the original price was the going price for a recent sale. Now here they're saying here we know that they can't build they haven't sold lots and they want to make more lots. Why do they want to make more lots? How can you sell lots to someone who comes in and gets a list from a realtor of that many lots? They want to say, well, how come there's so many lots for sale and they're not selling? How long If it's a smart buyer, he'd say how long have these been for sale, and it's kind of shocking. People have given up their property even because they're not selling things there. 21 We've had a little adverse publicity this is off the record. Off the record, I thought it almost ludicrous that someone would get up and say we want to make more lots because things didn't work there and nothing is going there. So because nothing's going there, we want to make more lots? That doesn't make sense, and it also puts the other lot owners who now own lots at a terrible disadvantage. But to get back to the text. Present practice in the County is for each 500 people in an azea two and ahalf to give them two and a half acres of open space. With 4,000 lots easily in the future, there is a future, these lots eventually develop, 12,000 people could reside there. Don't we owe anything to those who come later? A large nearby holding could not be sold even after being cleared. Papaya trees were planted to encourage a sale. Today, Albezia trees have taken over, some improvement. So farmland is not being sought either. L.et the Nanawale Estates Company deed these areas to the County. Surely need, not greed, should guide the outcome. These open areas are all on original permit documents. For ecological reasons, future needs, and to abide by original agreements, these areas should not be rewned. Thank you. TANAICA: Okay. Thank you. Mr. Barve, name and address, please. RUBIN: Oh, I wanted BARVE: Yes, my name is Darwin Barve, and I reside on Hapuu Road in Nanawale Estates. And I heard a speaker once say that this is not about greed or this is not about money and, you bet, for sure, that it's going to be about greed and it's going to be about money. And I had four points written up today, and I'll try and cover them briefly. The first point is we live in a Zone 2 lava area, which is 50 or 60 percent of it has been covered by lava in the last hundred years. We were also promised by the landowner, the land developer, Ruth Duff, that she would keep these spaces open for schools and parks and other needs for the future which apparently she's changed her mind. And we feel that this decision that you make today will affect all of us and our children and our children's children and we want to keep Nanawale a what little open space we have ]eft, available for the future development. 22 So at this time, we would ask you to deny the permit petition in order that we will have for future development a small open space area for possibly a fire station or a school or possibly even a prison, if it comes to that. PUBLIC: That's a joke. BARVE: Thank you for hearing us and we appreciate the Commission's HAZEL: Attention. BARVE: Attention. And thank you for Al Smith for coming and appearing here, also, in the audience. TANAKA: Okay. Thank you. BARVE: Thank you. TANAKA: The next speaker I have listed as Barry Orlando. Is there anyone else in the public that would like to testify? Okay, Mr. Orlando. HAZEL: I forgot to ask you that [ am asking you to deny all three of these applications. TANAKA: Okay. ORLANDO: My name is Barry Orlando, and I live on Shell Road in Nanawale. And I'm actually here representing some 200 people. We did a survey, and we received overwhelming response, and I am going to ask you to bear with me because this is going to be a somewhat lengthy presentation. TANAKA: Mr. Orlando, as long as it deals with the ORLANDO: It deals TANAKA: Issues, okay. ORLANDO: Exactly with the issue, as do all of the does all of the testimony that has been given so far. The issue in front of the Planning Commission is not always related only to an area 300 feet away; that's only a designation of who has to be sent letters. That does not restrict you from considering people further away and from considering a community as a whole. Mr. Lim has claimed that he has changed his application from agricultural to residential, so 23 my first question is what is the application before us today? What is Mr. Lim asking for? TANAKA: There's three separate applications. They go from Open to RA ORLANDO: R TANAKA: On Parcel 87. ORLANDO: A TANAKA: Residential and Agricultural. ORLANDO: Yes. TANAKA: On the secohd one, Parcel 77, the same thing. ORLANDO: RA. TANAI{A: RA. And A-5. ORLANDO: RA. TANAKA: And on the third, Parcel 38, Family Agriculture. ORLANDO: Family TANAKA: Which was previously Residential and Agricultural. ORLANDO: Right. So I see agriculture in every one of those applications. I don't understand his statement about single families. Hardly anybody more than a single family could make any kind of living on less than an acre anyway. Nobody ever thought there'd be more than a single family on any of these pieces of land. That hasn't changed a thing; it's still agriculture. Somehow, suddenly, the review committee has decided that one of these pieces, which was previously disapproved as agriculture, because now it is somehow designated as being allowed to have only one family on it, is appropriate for agriculture. I don't understand that, but that's just one point. The version the maps that were given out and represent a contract between Nanawale Company and the buyers, there are various maps which exist in the Planning Division and are in the folders of the applications. These maps say various things on these pieces of property. They say parks, they say schools, they say shopping centers, and each map you look at may say something different on each piece. But the one thing they say that's the same is Open zoning. They promised everybody that these pieces would be Open zoned. 24 The parks that we have now, Mr. Lim claims are approximately an acre and a half each, but actually our lots are one-sixth of an acre. The current parks consist of usually three lots together; that equals three-sixths of an acre, not one and a half. Health issues. The it has been questioned as to whether or not pesticides are a health issue here. Agriculture is the issue here. Nobody has said anything about no agriculture. Health is the issue. Putting sprays next to houses kills people. It would kill me, personally. I am a Hep-C patient. I cannot breathe in antifungicides; Iwill die in five years if I do so. There are many other people, emphysema patients, many people with lung problems. We're talking about putting agriculture with no border restrictions next to houses on one-sixth of an acre; that puts a lot of houses around one acre. Okay, you've answered what zoning has been asked for, and it's clear now that the zoning that's being asked for is agriculture. Let me hand each of you, not each of you because I don't have enough money to do that many copies, but if you would just start one of these at one end and I'll start the other one at the other end. HAZEL: Do you want me to put them around there? ORLANDO: No, there's only two. What you're going to have to do is just take a look. This is the presentation I'm going to read, and I'm handing them out because they have pictures. And TANAKA: Use the microphone, Mr. Orlando. ORLANDO: The first picture is a very large and beautiful `ie`ie. This is a Native Hawaiian plant of great value to Native Hawaiians, as many of you probably know, it's been used for basketry and armor and it has a large history in the Native Hawaiian community. Well, I wish to speak in particularly of the parcel surrounded by Seadrift, Holiday, let me walk over there and I']1 point to it. Yeah, that one. That's the parcel. And I want to speak in particularly to that parcel, and that's the parcel that these pictures are of. But I want you to keep in mind this is equally applicable to all three parcels. And the education is really the thrust of what I feel education, open space, and ecological preservation are what we have determined the people of Nanawale, through our survey, are really most interested in. And I wish to point out that the board here, their opinions are expected, but they are the board of a Corporation. They were not elected as a representative board; they don't represent the people of Nanawale, they only represent their own individual opinions. They're supporting us. They're saying no ag. Great. Well, I have 187, to be exact, other people here, the real people of Nanawale, who also want open space HAZEL: Let me 25 ORLANDO: No, just let me handle it. Also want open space and no ag. Many of them have written replies and asked me to read them to you. The subjects I wish to speak to today ate the warranty presented to the buyers of Nanawale property by Nanawale Company, the developers, the objects and purposes of Nanawale Association, Inc., the subdivision, their relationship to the purpose and applicability, County Section 25-5-160 of County Zoning Code Division 16, O, Open Districts, the survey conducted by ourselves, an independent foundation formed for the purpose of providing a realistic experienced entity under which the will of the people of Nanawale, the warranty of Nanawale Company, the statement of purpose of Nanawale Estates, Inc, and the legal requirements of Open Zoning can all be satisfied in an equitable and happy manner which would provide us with a desirable residential community as well as the ecological educational value of this land. Cooperation is what is needed towards using this land, cooperation is what is needed towards using this land to its highest educational potential. Its value as open space for the community, and ultimately its greatest economic value to the community is what we seek. We are ready with expertise and experience to accomplish the stated guarantees and goals of all of the above entities. We must retain Open zoning until a solution satisfying the guarantees, statement of purpose of Nanawale Association, and County zoning laws has been found. Asking to rezone this land after giving a written map and warranty to each and every property owner as a representation on the whole as the zoning they are buying into is a matter for litigation, not the County Planning Department. My first hope is that you would recognize this as an internal corporate matter that belongs in litigation and defer all action until Nanawale Company's legal right to violate their guarantee of Section H of Warranty (First Unit) which says, and this is in that paper that's circulating. around there, a copy of it's in there. Here's a quote, "The non-profit Nanawale Community Association (composed of all property owners," including the Duffs) "will maintain parkways, bridle paths and recreation facilities." Bridle paths, very interesting. This statement is part of a complete document which is a map of Unit One presented to the buyers as representing what the above quote is referring to. This map clearly shows the Open zoned areas we are talking about. That there have been many possible suggested uses for these parcels is irrelevant. They are represented as Open zoned parcels by Nanawale Company and thus fall under our responsibility to maintain parkways, bridle paths, etc. These are the only pieces of Nanawale Subdivision large enough to even conceive of creating a bridle path, and we would cooperatively work towards this as one goal. The County Zoning Code, which clearly states Section 25-5-160, Purposes and Applicability, "To protect investments which have been or shall be made in reliance upon the retention of such open type use." That is to say Open zoning must protect investments which have been or shall be made in reliance upon the retention of such open type use. While our survey specifically asks the question, did you buy this land with the intention that the Open zone 26 represented to you by the developer would enhance the value of your land? And the answer was universally yes, we did. And yes, they would like me to express this to you in no uncertain terms. Helping to maintain the value of their let's see. Purpose Which has been used Okay, to retaining open This code, retaining Open caning, has been used as a sales point to the people of Nanawale for exactly the purpose of Open caned pieces helping to maintain the value of their individual property. In other words, these letters, these returns, have told me that yes, when they bought their land from Nanawale, they were told that this Open zoned piece these Open zoned pieces were an asset they were being offered to enhance the value of their land. And it's written down in all of those documents. This since Open zoned pieces are required to help to maintain the value of their individual property, since this is a requirement within the Open zone law, this imposes upon you, the Planning Commission, the absolute requirement of rejecting this zoning change proposal. These people have asked for it. It's in the law. It's in the very first paragraph of the' law which sets the tone for the rest of the paragraphs; that's how laws are written. You give an opening paragraph, and everything that falls under it must fit within the tone of the opening paragraph. The opening paragraph says, contains the sentence I quoted, and the opening and that sentence is what's guaranteeing the Open caning as a benefit to enhance the value of the buyers' land was guaranteed to us. And the law says you must guarantee us that, as well. We have the testimony of over 200 lot owners that they did just that, bought with the expectation that the Open zoned spaces represented to them on the subdivision map would enhance the value of their property. Here is their testimony. It's here. I'm going to read some of it later. I'll take that up at the end. Considering all of the above and more, especially health and safety hazards, Nanawale Company's suggested uses, which are agriculture, would be explicitly against Article III of the Articles of Incorporation of Nanawale Association Nonprofit, Inc. which, as we have pointed out, the Duffs are obligated to obey, as owners. See attached copy, that's in there, too, which also guarantees that we will be a desirable residential community. This phrase no one has agreed here that having a lot next to them sprayed is desirable. And no one has agreed here that having school, public schools next to them is desirable. Lights, traffic, congestion, these are all the same issues as agriculture. A public school is no more desirable next to a one-sixth acre lot that surrounds that public school with about 100 people; they don't want those night football games and all that noise and all those buses anymore than they want a packing plant. They want open space, they want educational open space, and they want it to be within the meaning of Open zoning, which leaves us with its greatest value, which is its educational use as a preserved ecological pieces of land. These are superb examples of ancient forest. We couldn't replace the value of the learning experience available on that land with a billion dollars worth of County buildings, wouldn't even touch it. But we could put a school for the purpose of teaching ecology and teaching culture and promoting the wellbeing and education 27 of the community, promoting a desirable residential community within Open caning rules very easily. TANAKA: Mr. Orlando, will you summarize your testimony? ORLANDO: I'll finish it. The value of the current ecology of these areas. I rely on a few pictures of magnificent almost entirely endemic hundreds of years old forest. A variegated `ie`ie so far never reported as having been seen before, a few examples of endemic (live only in Hawaii and are protected) snails, and the photographic comparison of a lot recently bulldozed directly adjacent to one of the roads proposed in subdivision plan of the parcel bordering Holiday, Flower, and Seadrift Roads. This photograph shows the contour. It is not flat, it is consists of 40-foot deep ravines, and these ravines have harbored this particularly valuable and beautiful endemic forest. Now I would like to address Mr. Lim's concerns, as they are expressed to me in a letter from him dated March 11`h, 1999, as my response is entirely consistent to this meeting. Addressing the concerns of Carlsmith Ball and Mr. Lim. A group of interested landowners who have worked together on various other local environmental concerns have formed a foundation in order to create an independent qualified body to own and administer these parcels in accordance with the guarantees and articles of incorporation that we have been talking about. Within this foundation, we have brought to the community over $100,000 worth of grants, State and Federal government financially supported projects in the last five years. We're a real foundation. We really make money, and we have really put $100,000 worth of improvement in place in this community. We are offering here as an organization of people with proven community improvement skills to work with you on accomplishing the original promises included in the Corporate Statement of Purpose of Nanawale Associated (sic) and the warranty on the Nanawale Company's representative map of the subdivision they are offering. The Duffs are currently members of Nanawale Association and, therefore, bound to uphold the corporate statements, by-laws, etcetera. To work with you means to begin by regarding each other as sincere in this purpose of upholding the corporate statement of purpose, a desirable residential community, by-laws and related rules. An incorporated non-profit status for our foundation is not worth our while to pursue unless we first agree to cooperate on a single purpose. That purpose is: What is the best way to use this land in accordance with our obligations under our corporate statements and warranties? This is in order to help build a healthy residential neighborhood, as required by all of the above documents. The Duffs, in fact, as the authors of these requirements for a healthy residential community, it would seem would be required to uphold them to a higher standard than even an average resident. 28 We are ready to act as the necessary organization to accomplish the original purposes of Open zoning in the most agreeable and beneficial manner to the people of Nanawale. The planning and financing will come if we can enter into meaningful discourse as to the best disposition of this land in the context of our contractual obligations as members of Nanawale Association. We, the foundation, have researched and determined that money is amply available for the purpose of such an extraordinary opportunity as this land offers for educational and ecological preservation, especially close to and available to a residential community. We need only the Duffs and the County Planning Commission's cooperation to move forward with no further investment necessary by the current owners. What we are offering is a major contribution to a healthy residential community. The current proposal is to put farms next to schools and farms next to houses rather than preserve open space, enough for bridle paths, to quote the developer's guarantee. The people of Nanawale have responded unanimously on our survey in saying that they bought their property with the expectation that the subdivision would remain as represented with the Open zoned parcels indicated on the subdivision application map, including its written guarantee which appears on that map. As I have stated previously, the County of Hawaii Zoning Code also guarantees landowners the right to retain Open zoned parcels under the existing conditions of this subdivision. The pictures, I'll let you take the time to get a look at them, they're captioned, they're pretty self-explanatory. These are to demonstrate the extraordinary quality of this particular piece of land off of Seadrift. The other pieces of land, we're just private people, we got to go to work, I can't cover everything, but they have equal ecological value, although they represent a different different types of native endemic forest. In fact, their educational value is enhanced by the fact that they represent different types. This is all available to Pahoa School, to all the schools on this side of the Island, easily available to all the residents. This is an educational opportunity that every one of these 200 people has asked to be retained and has stated they have the right to, from warranties and from County zoning law. So I know this is long, but I have been asked by these people to represent them. Many of these owners, many of these people who answered our survey own multiple lots, and I'd like to read the survey to you so you understand I'll abbreviate it, but you understand that we TANAKA: Sum it up. I think we all ORLANDO: Yeah. TANAKA: [t was included in your presentation, your packet. ORLANDO: Right. 29 TANAKA: We saw that. You had a sample. ORLANDO: You'll be able to read it. But the basic impact is that we asked very directly, did you buy your lot with the intent that its value was enhanced by the Open zoning, and was that represented to you? They all said yes. Okay. Here's a presentation by Andy Kier that I've been asked to read. "To the Hawaii County Planning Commission, reply to Rez 98 and 27. I am Andy Kier of Puna, Hawaii. My testimony will be read by my neighbors. I am teaching classes at Pahoa High today. I've handled properties in Puna for years, including those in Nanawale. I chose to buy there primarily because the realtor pointed out you've got a 10-acre back yard, a reserve, he called it. It was a very good choice, as it turned out with the forest, its sights and sounds, the whole feeling. It makes you feel healthier, it heals you. So I bought another place close by and made the first a rental, advertising it as a quiet, private, as quiet and private, and got $100 over the going rate for rent and better tenants because it bordered the 10-acre reserve; and people liked it because of the trees, the i`o roosting right there, that's the Hawaiian hawk, the Hawaiian bats swooping in the evening sky, the pueo calling at night, the pueo is the owl. This is their home, their last resort. I understand that the owners are impinged due to taxes and liabilities, but Isay anon-profit foundation will come forward to make a better use of this land, with more profits all around by its mandated use for education, for the community, to learn its natural history and the culture that surrounds it. Let there be development which meets the needs of residents, not developers, and with a balanced physical and social environment, the County land use policy. Let's don't upset the balance of Nanawale that the residents have struggled so long to maintain. Folks, you all know that Puna is an environmentally sensitive area, and the last thing we all want is protests, monkey-wrenching and more long, costly lawsuits. Please maintain the Open zoning." That's Andy Kier. I'm not going to read all of these. I don't want to make you suffer any more than me, but I'll go through very quickly and see if I spot some particularly poignant ones. This one says I do, they all say things like I do not want the proposed 13-acre plots changed from Open zoning to Ag (Rl). I want their scenic beauty to be preserved, and I do not want to live next to agricultural lands that will be sprayed with pesticides. As owner of the above cited lots which I purchased in 1971 on the basis of representations made to me by the developer and their sales representatives, Istrongly object to any proposal that would permit rezoning for agriculture within the boundaries to Nanawale Estates, thus destroying its intended residential community character. I believe this is I believe this to constitute a breech of oral, if not written contract with all of us who bought our lots in the belief that the plot layout furnished by the developer was an integral part of the contract of sale. Please record me as an adamantly opposed to the proposed rezoning of any portion of Nanawale Estates to Agricultural-Residential 1. Lee A. Phillips, Phelps. 30 They go on and on, and they all say the same thing. HAZEL: Ask them if they want copies of this. ORLANDO: I'd be glad yes, I'd be glad to provide you with copies of all of this. I'd be glad to also correlate which of these are within the 500 people who were required to be notified. Many of them are on that list. I haven't had the time to correlate exactly, but I know personally of at least 20 or 30 of these respondents who are on that list, and I'm sure there's many more than that. TANAI{A: Thank you. Anything further? ORLANDO: I'm sorry, what? TANAKA: Anything further of that? Are you going to summarize, sum those up or ORLANDO: ['m TANAKA: I think we get the gist of, you know ORLANDO: Okay, so you've got the gist. TANAIG4: Yeah. ORLANDO: And there's, you know, I haven't counted these; there must be 50 letters right there, and they all say the same thing. TANAKA: Okay. Thank you. Commissioners, any questions for Mr. Orlando? MOSHER: None. ORLANDO: I have one other small thing just to point out. And I showed a couple of the Commissioners these earlier. They're just some examples of real endemic, endangered tree snails, which is only one of the assets of all of these pieces of property, and especially the one on Seadrift. TANAKA: Okay. ORLANDO: Thank you. TANAI{A: Thank you very much. Is there anyone else wishing to testify on this agenda item? Okay, if not, we'd like to call the Applicant forward and ask him if he has 31 received the Background and Recommendation Reports, if he has any comments. LIM: We received the Background and Revised Recommendation Reports for all three and have no comments. TANAKA: Okay. Again, is there anyone else wishing to testify? Commissioner McIntosh. MCINTOSH: Yeah, I'd just like to ask the Applicant a question. There was a representation made that the entire property was in a Zone 2 lava flow. Could an educational facility even be constructed in a Zone 2 lava flow? LIM: There is one I think at Pahoa Elementary and High School is in, also, I'm not quite sure but I believe it is also in Zone 2. We were anticipating that the community association would pursue probably a private school of some sort because the Department of Education has historically refused to send funds to this subdivision. Especially in light of the new construction of the schools at Keaau, we don't believe that they're going to anytime soon send any more significant DOE funds for a school. MCINTOSH: And would you also clarify again the size of these individual parks that are LIM: Okay. MCINTOSH: Scattered throughout. LIM: That was contained in your Background Report at Page 2. BAKER: Page 4? LIM: On the Amended Background Report but, essentially, they range from 1.5 acres for most of them through 7.4 acres for the largest, 3.5 acre for another, and .265 for the smallest one which is the one over on the far left side of the project. Those are all park sites. MCINTOSH: And the total acreage is? LIM: Total acreage for the park sites that has been conveyed to the association is 27.56 acres. MCINTOSH: So it's almost double what the guidelines under the impact fee ordinance would require for a community of this size. 32 LIM: That's correct. Also, I think Bonnie Goodell also submitted a letter back in February of this year to the Planning Commission for these applications, in which she said that the park acreage should be a minimum of 15 acres. HAZEL: That is just one component. ORLANDO: That gal just added it up to 48 acres for TANAKA: Hang on. We have Mr. Lim here testifying, okay. LIM: I have TANAKA: Go ahead, Mr. Lim. LIM: Ms. Ruth H'adaller from the Association to present some information on the status of park development within the subdivision. We have, basically, two issues in this, in these applications, I believe, at least from our perspective. One is the fear that agricultural uses would be proliferated on the subject properties. We think that our volunteering of the restriction to single family residence purposes only for these properties will handle that issue. The other one is whether you should retain these for park uses. So I'll give the mike to Ms. Hadaller to discuss how the Association has handled parks and what their plan is for the park development; and then I'll discuss the impact of the CC&Rs on that park issue. BAKER: I have a question. LIM: Mr. Baker has a question. TANAKA: Commissioner Baker. BAKER: My question to you, who is representing the developer, is that I can see the concerns of the community as far as when they bought the place they had it was set up for open areas, and now that things are being changed, and then you have these other areas that are listed here that has showed that there are other open areas. Is there any commitments that there's not going to be any further changes on these areas? There's a park, there's a fire station, you know, we see these things in there. Is there some assurance is this why the fear of the community, are you making this approach to the Association that is there some commitments that You know, looking at the flip side, if I was living there, you know, promises keep on being broken year after year or, you know, these kind of things where people buy things? LIM: I think first issue on that is the representations of the developers to the buyers are a private law matter, civil matter; but in any event, the representation has been made that we've promised that these areas would remain open and that's not correct. The only 33 representation that I'm aware of is that these areas would be used for various types of uses enumerated in the CC&Rs. Essentially, like I said, the whole subdivision shall be used for single family residence purposes or there's exceptions for certain parcels, including the ones we're talking about, for school, multi-family, fire station, etcetera. So that is the commitment, at least in my opinion, of the developer to use these things. That hasn't changed from the early days of the development of the subdivision about 1969. TANAKA: Director Goldstein. GOLDSTEN: To, I think, clarify on Commissioner Baker's question, the remaining lots that are caned Open for the park purposes, that has already been conveyed to the community association, so it's out of the owner's hands right now. LIM: That's correct. GOLDSTEIN: Okay. BAKER: That's what I meant. TANAKA: Okay. Thank you. Ms. Hadaller, have you been sworn in already? HADALLER: I have been sworn in, but my name is Ruth Hadaller, and I live in Nanawale Community, and I live on 14-833 Kehau Road. TANAKA: Okay. HADALLER: And I want to also state the fact that as of the board meeting last Tuesday evening, the board unanimously agreed to uphold the statement that they made at the February 9th, 1999, meeting which I think you all have copies of. I did want to turn around and add though when Mr. Lim asked me about our proposals for the work we're doing on parks, we are right now in the process of just finishing a Little League park that we have built with HUD money, and we've had a lot of problems with it, but we finally have got the project almost to a complete completion. And we one of the decisions of our board for this past year has been to develop one park a year after we finished the ball park. And we also have a suit against the geothermal because of the trying to get some money out of them for the beautification of our development and, in fact, this past Wednesday afternoon, I talked to Mr. Paul Roger, who came over from Maui, representing the geothermal, and because we were al] for pulling out of the pulling our request out for money. BAKER: The Asset Fund. 34 HADALLER: Oh, I'm sorry. And he kind of let convinced me to stay with it, that there'll be money available for us to continue the work on the parks that we want to do. Because we have quite a number of programs going for the children; we have our recreation center set up for them, of course the swimming pool. And I do want to make a comment to the fact that Ms. Hazel said that she was speaking for the Environmental Committee. I know of no one from the Environmental Committee that gave Ms. Haze] the permission to speak for them; I just wanted to make that And that the question you asked yourselves was these particular properties that are in yellow here are designated parks and they were donated back to Nanawale about five years ago from the Association, Nanawale Estates, and we do pay all the taxes on them now. TANAI{A: Ms. Hadaller, you mentioned something about the geothermal. You have a suit against the geothermal? HADALLER: Yes. TANAKA: Or a claim? HADALLER: A claim. TANAKA: Okay. HADALLER: I'm sorry. TANAKA: All right. HADALLER: It's a claim. TANAI{A: Commissioner McIntosh. HADALLER: Yeah. MCINTOSH: Yeah, I'd like to know why the Association did not accept the conveyance of the remaining of the parcels when it was offered. HADALLER: I don't remember these particular parcels ever being offered, at least to our knowledge. We got a letter from them stating that they wanted to turn around and subdivide it, and that there would be the 12 acres left for a school, and we said that we would go along that. And that's the only information that I can find in any of our records going back to the five years that I've been here and even further back. 35 MCINTOSH: Okay, but it could have happened HADALLER: But these particular pieces of property, the pieces of property that she's talking about were these individual parks. MCINTOSH: Okay. So to the best of your knowledge, even prior to five years, the two larger park parcels were never offered HADALLER: No. MCINTOSH: To the Association? HADALLER: No. MCINTOSH: Would the Association accept them if they were? HADALLER: Yes, they would. MCINTOSH: And how about the school parcel, would you accept that? HADALLER: The same thing with the other parcels. MCINTOSH: Okay. SOUZA: Mr. Chairman? TANAKA: Commissioners, any further questions for Ms. Hadaller? Commissioner Souza. SOUZA: I have in front of me the letter from Nanawale Community Association, the February 9 one. HADALLER: Yes. SOUZA: And listening to your testimony and what I read here, I just want to ask this to make it clear in my mind. The Nanawale Association Board of Directors are in favor or against the proposed zoning? HADALLER: The proposed zoning, as it stands Residential-Ag, they're in favor of it. SOUZA: Of ag? HADALLER: Yeah. No. Residential-Ag. 36 SOUZA: The TANAKA: The way that it is applied for HADALLER: Yeah, the way it is TANAKA: At the present time. HADALLER: Applied for right now, yes. TANAKA: Okay. SOUZA: Would you also be in favor of the way the developer say to make it single family residential? HADALLER: Yes, they would be. SOUZA: In favor of the rezoning? HADALLER: Yes, they would. As long as they followed the rules and regulations of the Nanawale Community Association. That was the that was what the Board decided on. SOUZA: Thank you. TANAKA: Commissioner McIntosh. MCINTOSH: Yeah, I'd like to ask the Director if a private covenant against agricultural uses is valid in an Agricultural zoned district. HADALLER: It's not valid. We understand that. GOLDSTEIN: We would not be able to enforce it. It would stay outside TANAKA: Private agreement. GOLDSTEIN: Of our jurisdiction. GIANNINI: It's privately enforceable, it's not enforceable by the County. MCINTOSH: No, I understand that, Fred. My point was mote toward the legal side of would the would it even be enforceable outside of this body if it violates State law? I mean, you have an Agricultural zoned district. Can you prohibit agricultural uses by any means in an Agricultural caned district? 37 GOLDSTEIN: We couldn't in an agricultural MCINTOSH: Could anybody, I guess is what I'm saying? Would the restriction even be GIANNINI: You mean MCINTOSH: Valid if someone GIANNINI: Yeah. MCINTOSH: Bought the property and then decided to challenge it later? GIANNINI: Enforceable as a private covenant. MCINTOSH: Because the restriction itself is invalid is my point. GIANNINI: I'm not positive. I think it could be, but I'm not positive. Again, I couldn't I only look at things from the perspective of the County, so I don't know what a private what private MCINTOSH: Okay. GIANNINI: Attorneys would make arguments about that. MCINTOSH: Okay. GIANNINI: Or whether or not it is. TANAI{A: Okay. Thank you. Okay, is there anyone else in the public who wishes to testify? We have Ms. Hazel raising her hand, Mr. Orlando, okay. Come forward, new testimony relevant to the application, okay. HAZEL: I'd like TANAKA: Ms. Hadaller, would you speak back and we'll bring HAZEL: Well, I want to just say something TANAICA: Mr. Orlando forward. HAZEL: To Ms. Hadaller before she leaves. I wanted to know whether she has read the articles of incorporation and the by-laws that she represents. Have you read them 38 thoroughly? HADALLER: Of course I have. HAZEL: And have you read the part that indicates that you need to have a vote of the TANAI{A: Ms. Hazel, direct your questions to the Chair and the Commission and HAZEL: And the Chair and the Commission, I want to know whether you are clear that Mrs. Hadaller understands that this body that she represents has rules about voting procedures, about making these major type of decisions, and whether she has followed those rules that are delineated in the, you know, in the thing that she represents. She doesn't appear to understand this. TANAI{A: Okay. I'll ]et her comment. Are there any other issues that you would like to bring up, Ms. Hazel, first? HAZEL: I TANAKA: You can finish up there. It's not a debate, you know. HAZEL: Yeah, I understand. TANAI{A: You present your concerns, and I'll have Ms. Hadaller, if she wishes to HAZEL: I still insist that you speak to Marguerita Hopkins about the future impact of I{ahuwai. You let het escape. You did not allow me to question her and you did not question her, and I want to put into the record right now that I think that is really not a good thing that you did. You should have talked with her while she was here. Because you don't know what the future of that is, and you didn't show any interest in questioning her. And then, furthermore, I TANAI{A: Ms. Hazel, regarding that, you still have another opportunity, depending on what happens here today. If it goes up to the Council HAZEL: No, I think you should be TANAICA: You have that opportunity. HAZEL: Decent enough to ask these things. 39 TANAKA: Okay. So thank you for that. Next issue. BAKER: I don't think we have the right, as Commissioners, to subpoena anybody to come up. If she wanted to Ms. Hopkins wanted to make a talk, she could have. HAZEL: She said she would talk. She just said BAKER: She could have been here. HAZEL: She wouldn't sign in. BAKER: She could have been here. But, look, I think the question TANAKA: Was that the woman that was here? GIANNINI: Yeah. BAKER: It's out of line. HAZEL: Yeah, she's from our Research and Development. GIANNINI: She works for the County. TANAKA: Okay. BAKER: So she left on her own free will. I don't think that's our obligation or our fault. HAZEL: No, I think she felt TANAKA: We cannot force anybody to testify. HAZEL: It wasn't the way the Chair spoke. I think she felt that she BAKER: I don't think we should be assuming anything. I think that question's out of order. HAZEL: So you had no questions for her whatsoever. MCINTOSH: Toby TANAKA: We can only ask if people want to testify, and they have free agency to come up here and our 40 HAZEL: I think she wanted to come up. TANAICA: Okay. Thank you very much. Mr. Barve, do you have anything? New testimony. BARVE: Yes. Yes, I have one question for the Commissioner and the Commission, and that is in 1992 when Nansay had their development in Puako, they were forced to pay impact fees; I think they gave a helicopter or something. So I'm just wondering if this developer that's getting re-developed now 30 years later, if they will be subject to any new impact fees for TANAKA: Director Goldstein. BARVE: Sidewalks, etcetera? GOLDSTEIN: In terms of the impact fees, this body, the Department as well as the Commission, has not imposed or recommended impact fees for developments because there is no authorizing legislation yet on the County level for us to make that kind of imposition. The County Council, nevertheless, and not this body, has. So we think that's a question you should address to the County Council and not us. . TANAI{A: And also to your district representative. Okay. Okay, Mr. Orlando, new testimony, please. ORLANDO: I'd like to answer a couple of points that Mr. Lim just made. [would like to know if a piece of property is zoned Agriculture, how you're going to guarantee it is not going to be used for agriculture? You made a very strong statement that the fact it is zoned Agriculture should not we should not presume that it'll be used for agriculture. Well, that's no guarantee there. That doesn't make any sense at all. It should remain Open. The maps Mr. Lim claims that his company never represented these pieces as being pieces that would remain Open, that they only represented them as pieces that could be used for various specific unchanged uses. We have enough maps to prove that the uses proposed for these pieces have been changed many times, and that the only stable wording on those pieces is Open zoning. And I have many letters testifying that these buyers were told Open zoning; they were not told school site or anything else. And they were told bridle paths, and they were told recreational areas. So TANAKA: Anything new on that, Mr. Orlando? ORLANDO: This is a provable point. TANAKA: Okay. Address the Commission and then we will 41 ORLANDO: Fine. TANAKA: Okay, but new points. I think you covered that already. ORLANDO: These are new points. TANAKA: It doesn't sound like it to me, but ORLANDO: All well TANAI{A: New points, Mr. Orlando. ORLANDO: Well, they said that they never represented these pieces as anything other than school sites. TANAICA: Okay. We']I let him comment on that but okay, thank you. ORLANDO: New point. TANAKA: Move on. Move on. ORLANDO: That's it. Board not representative of people. Again, I can just reiterate that that's very good that the Board would be willing to accept this land. The foundation which I represent would also be willing to accept this land. And we feel that we should be that is the thrust of my previous discussion is we should be concentrating on cooperation here. We have several bodies which could accept this land and which could make the original promised uses a reality. Thank you. TANAKA: Thank you. Okay, we'll conclude with Mr. Lim. LIM: Just a short caveat. When I made my statement regarding representations to buyers, I said just to my knowledge, because I don't know we haven't conducted any investigation on what was said by the realtors or anything else. But I think maybe the bottom line, the way to address the request to retain them in essentially a park or open space is that the CC&Rs on the private side, on the civil side, require that these lots all be used for single family residence purposes with the exception of, for these particular three lots of being that they may be used for a park use, I mean, excuse me, for a school use. So if the, Mr. Orlando and his supporters would, wanted to use these for park or open space purposes, they have to get, I believe it's atwo-thirds majority of the lot owners to change the CC&Rs. I think MCINTOSH: Say that again, say that again. Are you telling me that these three lots, unless they are used specifically for schools 42 LIM: For single family residence purposes or for schools. MCINTOSH: I thought I heard parks and other things when you were LIM: No, that was mis-spoke. It's either for single family residence purposes or for school purposes, then they have to change the CC&Rs. MCINTOSH: These three specific parcels, because I thought I heard you say fire stations and other things. LIM: There are other uses proposed on other lots within the subdivision. MCINTOSH: So there is something specific for these parcels that they were to be used only for schools? LIM: Yes. TANAI{A: Okay. MOSHER: Or residential. MCINTOSH: Or residential. LIM: Or residential. TANAKA: Commissioners? ORLANDO: This is very good, Mr. Lim, thank you. It doesn't happen TANAKA: Mr. Orlando, I'l] let you speak, but this is the last that we'll have as far as public comments, okay. Speak into the mike and speak to the Commissioners, please. ORLANDO: Well, everyone has a right to answer any new points that come up any time. Thank you. Mr. Lim has already made it clear and first of all, I'd like him to show me the CC&Rs that say schools. I've never seen them. Secondly, what we're proposing is a school, the school of natural history. TANAKA: Okay. Thank you. ORLANDO: And a school can be accomplished only within Open zoning. Without the Open zoning 43 TANAKA: Okay, we got your ORLANDO: It's not TANAKA: We got your testimony loud and clear, Open zoning. Thank you. Commissioners? PUBLIC: You were shaking your head yes as you were shaking no. Can I get that, please? I like that shot. TANAKA: Commissioners? Commissioner Baker. BAKER: Mr. Chairman, after hearing no more public testimony. I'd like to make a • motion to close the hearing. MCINTOSH: Second. MOSHER: Second. TANAKA: Motion by Commissioner Baker to close public hearing, second by Commissioner McIntosh. All those in favor, say aye. COMMISSIONERS: Aye. TANAKA: Any opposed? Motion carried. Commissioner Baker? BAKER: Mr. Chairman, after hearing much of the discussion, I've been wondering if, I'd like to make a motion that we hold a public hearing down there, and we could get more testimony. TANAKA: We just closed public hearing so GIANNRJI: Public hearing has been closed. BAKER: Oh, okay. Well, I meant, you know, to, okay. I correct myself. TANAKA: Yeah, we just closed it. BAKER: I correct myself. TANAKA: Okay. MCINTOSH: Well, in that event, I, Mr. Chairman. 44 TANAKA: Commissioner McIntosh. MCINTOSH: Yeah, I'd like to make a motion that we make an unfavorable recommendation to the County Council. Pm extremely uncomfortable with taking schools or school sites because the DOE doesn't want them today when we could be looking at something 50 yeazs from now when we'd really need them. If the Homeowners Association is willing to accept the lots then I think that the original intent of the developer should be fiilfilled, even though all of the written testimony represent less than 5 percent of the owners. I mean that could be interpreted that 95 percent of the owners really don't caze. And I understand that their buying things with an open designation is part of the civil side, but I don't want to participate in removing lands for potentially dedicated school sites from their dedication. So I move we send an unfavorable recommendation. GIANNINI: On all three? MCINTOSH: Yeah, yes. GIANNINI: Oh, I guess you could maybe make the motion on the first one first. MCIIVTOSH: I make a motion on 98-27 then. MOSHER: We have one motion BAKER: Can make it on all three? GIANNINI: No, no, no TANAKA: The motion has been to close. MOSHER: Oh, close, okay. TANAKA: We're in a discussion right now. GIAIVNINI: That was voted on, that was voted on. MCINTOSH: Oh, I thought we akeady voted on that one. I'm sorry. GIANNII~TI: No, no, you voted on, you did vote on that. MOSHER: That's what Ithought TANAKA: The motion is closed. 45 GIANNII~II: Now she has made a motion. Is there a second? TANAKA: Yeah, yeah, we don't have a second yet. MCINTOSH: That's correct. TANAKA: Yeah. BAKER: I have a discussion GIFFIN: Is that for agenda Item No. 2? MCINTOSH: That's agenda Item No. 98-27, is that Agenda Item No. 2? BAKER: That's No. 2: I have a question. TANAKA: Commissioner Baker. BAKER: I kind of, isn't there an agreement that they're going to allow 12 acres for a school? GIANNIIVI: Wait, we don't even have a second on this motion yet. MCINTOSH: There's no, it may die for lack of a second. GIFFIN: We need a second. TANAKA: Okay, that's right. In order to have a discussion, and it could be for discussion purposes only, we need a second. TOGASHI: Okay, I'll give you a second, second on that. TANAKA: Okay, we have a motion by Commissioner McIntosh, a second by Commissioner Togashi. This is in regazds to Change of Zone Application No. 98-27, that an unfavorable recommendation be sent to the County Council. Okay? Discussion. MOSHER: Lin, as I understand, that's based on the original intent that that pazcel was going to be used for a school, where that whole 23 acres was designated for a school. MCINTOSH: Yeah, and I would make the same azgument for all three pazcels. When I left this, the hearing last time, I was under the impression that the parcels had been offered to the Association and they had decided not to take them either for liability purposes, or insurance purposes, or whatever. There aze substantial number of unsold lots. I just am uncomfortable 46 with changing an open zone just because they may not need a school there. I would like for us to be looking 50 and 100 years down the path rather than the immediate needs; and if a school site has been designated and if the association is willing to accept it and the DOE is not, then I think they should stay school sites. MOSHER: Cause it doesn't say public school site, it could be a private school site. MCINTOSH: Coaect. TANAKA: Commissioner Togashi? TOGASHI: Yeah, I have two questions. I guess maybe, we're on the subject of Application No. 98-27? TANAKA: Uh huh. MCINTOSH: Correct. TOGASHI: Now does this, was the school site reserved for this lot? MCINTOSH: Yes. TOGASHI: This one here? MCINTOSH: All three of these sites. TOGASHI: I can see the second one where it was Lot 836 where that whole 23 acres was designated for school. But I wasn't sure about the other two applications. So all three applications were reserved for school site, sites? MCINTOSH: Two elementary schools and one intermediate TOGASHI: Okay. MCINTOSH: And high school. TANAKA: You had a comment? GOLDSTEIN: May I just ask for clarification, then. Then the motion is being made with a condition that the community association accept that site? MCINTOSH: No. 47 GOLDSTEIN: No. Just whoever and the owner still hangs on to the pazcel? MCINTOSH: If she so chooses, but the option is there to give it to the association. If the intent is what aze we going to do with it, we're tired of the liability, etc., etc., I don't think that's our concern. My issue only is they were school sites, they should stay school sites. TANAKA: Okay, Commissioner Baker. BAIr.ER: My question was that I thought that there was going to be an original proposal that they were going to have some, well, 12 acres for a school site. Is that correct? GIANNINI: That's on a different site though. BAKER: That's on a different site. TANAKA: Yeah. That's on the GIANNINI: That's 98-27. TANAKA: Phyllis, would you point that out on the map, please BAKER: What site was that? TANAKA: Which one it was cleaz that BAKER: The twelve acres. TANAKA: Intended for school. FUJIMOTO: I'm sorry, okay. This is the property that's proposed to be subdivided into ten lots on this side and the remaining 12 acres remain as a school site. BAKER: And the proposed, the one that we're discussing now is on the FUJIMOTO: Is this one down here. BAKER: Right down there, okay. TANAKA: Wait, wait, clarify that now. We're on agenda item number two which is parcel number 87. BAKER: Eighty seven. 48 TANAKA: Okay. FUTIMOTO: Down here. TANAKA: And the school was intended for that, that piece? FUJIMOTO: Yes, this, this and this, all three. TANAKA: Okay, any further discussion? MOSHER: I don't see TANAKA: Commissioner Souza first. SOUZA: Mr. Chairman, I'm extremely divided on this one and mainly the reason is because I see a difference of opinion within the community. As I see the association is for it and other individuals aze not, and this bothers me. I don't necessarily agree with Commissioner McIntosh that no matter if all the lots aze built out and using the thing that Puna, I mean, Pahoa would be the centralized school district, I don't think, in my opinion, the azgument for school site is valid, more so that they've already given the 12-acre site. My real concern here is that there is no need for additional lots, really. There is no need for additional lots. And the, unless there would be a need I think that not on the school site but I think it would be prudent to leave those areas for the community as open space. It is my hope that sometime somewhere along the line Pm going to be, well, not necessarily for the same reasons, I'm going to be voting on Ms. McIntosh's motion. It is my sincere hope that somewhere down the line we can resolve this between the developer and the community by coming to an agreement that everybody can live with. I do want to say this, it's even hazder forme to not go for the recommendation because the developer has made a concession to take it away from ag to residential; and I think that, you know, it's a significant concession. And to answer the people from Nanawale Estates, how can you do this, we can put it in if we make a motion that the restriction be there. But, nevertheless, looking more so because there is absolutely no need for additional lots in the subdivision and because I feel at this point without the need for additional lots that it would be prudent to leave those azeas in open space as it is. TANAKA: Commissioner Mosher, did you have something? MOSHER: Well, as I understagd, although the developer said they're going to be put into residential use, it still is agriculturaUresidential. So within that definition, agriculturaUresidential, there's a whole lot of activities that can be conducted on the property. So it's not just going to be a residential azea. There could be all kinds of activities within that category. And I think Lin asked if we could put on a restriction that we can't regulate. 49 TANAKA: I think the discussion included comments from Mr. Giannini that that would be a private agreement but Mr. Lim did indicate that he would do whatever to make sure that there will be no agricultural uses. And I am assuming that on the list that is allowable under the RA he's meaning that none of those would occur and that it would be set aside for residential only. LIM: That's essentially correct. What we're trying to do by volunteering the restriction to single family residence purposes in the zoning is to bring together the civil and the County side. So theoretically, and you can ask lv*.r. Giannini, you might be able to enforce that restriction through the Planning Departrnent. TANAKA: Okay, thank you, but GIANNIIVI: Excuse me. TANAKA: Yeah. GIANTIINI: This testimony is not supposed to be allowed. The hearing is closed. LIM: Oh, I'm sorry TANAKA: Okay, that's correct. The hearing is, public hearing is closed. Commissioner Mosher. MOSHER: It appears to me that this then means that people want a house on a larger lot. TANAKA: That's right, one acre, yeah. MOSHER: They're not going to be cultivating for sale papayas or bananas. TANAKA: That's right, I think he could come in for a MOSHER: And that's, but that's very hard. GOLDSTEIN: She can't ask a question of him. BAKER: You can't ask a question to him. MOSHER: I can't ask him a okay. TANAKA: Yeah, this is just discussion here. 50 MOSHER: Yeah, Pm just, I'm thinking out loud and it just, it appears to me that this is what the owners aze trying to do, is just to create lazger lots that might be more salable than the smaller 8,000 squaze foot lots. MCINTOSH: If, I , Mr. Chairman. TANAKA: Commissioner McIntosh. MCINTOSH: If I could address that. The reason the developer is coming in for an agricultural zoning is to avoid the impact fees associated with a change to residential. MOSHER: Ah, thank you. MCINTOSH: It has nothing to do with marketability or anything else, I think, although there maybe some secondary mazReting reasons for wanting lazger pazcels. But MOSHER: But the impact fees. MCINTOSH: Correct. TANAKA: Is that your opinion? MCINTOSH: That was, I believe, part of the original testimony. GIFFIN: Mr. Chairman? TANAKA: Commissioner Giffin. GIFFIN: Am I correct to assume that one of the three lots, and Phyllis maybe you could, I mean, yeah, Susan, would you point it out, which lot was going to be designated for a school? MCINTOSH: Portion of one of the lots. BAKER: The red dot. FUJIMOTO: Portion of, it is the second one GIFFIN: Okay. FUJIMOTO: Here. GIFFIN: And that's approximately how many acres? 51 FUJIMOTO: Twenty three acres. MCINTOSH: Twelve of which aze going to be a school site, correct? GIFFIN: Twelve would be a school site? FUJIMOTO: Yes. GIFFIN: I'm real comfortable with that allocation and that amount in terms of now and the future for a school in this size community. Knowing that in the surrounding neighborhoods there are already existing public schools that aze designated to more than meet the needs of the community, I will be voting against that motion. TANAKA: Commissioner Togashi. TOGASHI: In contrast to Ms. Giffin's feeling that 12 acres, she would feel comfortable with 12 acres, I felt otherwise; and I felt that perhaps maybe the whole 23 should have been devoted to or designed for school use or designated for school use. And I did feel comfortable with the other two applications but I did feel quite uncomfortable with the split zoning on the second piece. TANAKA: Okay. So we're addressing again, we're back to Rezone 98-27, yeah, so this is parce187 first. GIANNINI: Okay, so just for the record, that's the lowest one down there, the one with the green dot. GIFFIN: Right, the green one. GIANNINI: Okay. TANAKA: Just my comments. I, you know, was glad that Commissioner Souza had asked Ms. Haddaler about the position of the association, you know, and she reconfirmed that based on today's zoning. Also, in regazds to the amount of lots that aze out there existing and should we, you know, should there be any further lots, whether it be in Puna or Hamakua or Kona, I still feel strongly that that is, you know, that is left up to the individual entities. If they feel, I mean, everybody has a right to do that, you know, in this free enterprise system that we have in this democracy. And I think as faz as that is concerned, whether we need 50 more lots or 500 more lots in Puna or wherever, the market itself, you know, monitors that. Okay, so I think that everybody as long as they're within the law should have the opportunity. Okay, anything further? Commissioner Baker. 52 BAKER: Yeah, that's why I was concerned. Because we have a 12-acre site for a school, I felt comfortable with that because then at least the school would be provided. And then looking at the question that I asked about, you know, would they be changing if they, you lmow, if they changed their plans in the future how it would affect the community, and then I was informed that the land was already fumed over and there was 27.56 aces fumed over to the community association which would guazantee them to have a fire station and a pazk at the proper time when they're ready to develop these things, and these pazks aze being set. So I felt comfortable in the fact that at least the community is being taken raze of and their commitments have been made, and this property is the only property that, okay, maybe the commitment has changed. But I felt comfortable in my thinking of that that the community has been taking care of by having this guaranteed pazks and a fire station and there will be a school of a 12-acre site. So I felt comfortable with that and I feel, I will be voting in favor of, against that motion. TANAKA: Okay, anything further, Commissioners? MCINTOSH: Yeah. TANAKA: Commissioner McIntosh. MCINTOSH: I'll just make one final comment in that the community was offered guarantees from the developer when they bought the property that aze now being foreclosed. So I just am very concerned about the precedent that maybe being set that you can develop a 4,000 lot subdivision based upon certain representations as to open spaces for pazks and schools and have the same bodies that issued the zoning with the conditions some 20 or 30 years later say no need and change. That's all. TANAKA: Okay, anything fiuther? If not, Commissioner Mosher. MOSHER: Would that have been a condition, Virginia, would that have been a condition of the original subdivision that we would be guazanteeing that the open space would remain open space or would that have been in the sales pitch? GOLDSTEIN: I believe it was a sales pitch; and this subdivision is one of those subdivisions that got created without a zoning and conditions. MOSHER: Okay. Thank you. TANAKA: Okay, if not, we have a motion on the floor by Commissioner McIntosh. And was it Commissioner Togashi FUJIMOTO: Yes. 53 TANAKA: That seconded to send an unfavorable recommendation on the Rezone Application 98-27 for Nanawale Estates Company. Roll call. FUJIMOTO: Commissioner McIntosh? MCINTOSH: Aye. FUJI1vIOT0: Commissioner Togashi? TOGASHI: No. FUJIMOTO: Commissioner Baker? BAKER: No. FUJIMOTO: Commissioner Giffin? GIFFIN: No. FUJIMOTO: Commissioner Mosher? MOSHER: No. FUJIMOTO: Commissioner Souza? SOUZA: Aye. FUJIMOTO: Mr. Chairman? TANAKA: No. FUJIMOTO: Mr. Chairman, there are two ayes and five noes. Motion does not carry. TANAKA: Okay, so the motion fails. Okay, we need a new, new motion? Commissioner Giffin. GIFFIN: Mr. Chairman, I move that we have a favorable recommendation for the change of zone for Application 98-27. BAKER: I second that motion. TANAKA: We have a motion by Commissioner Giffin, a second by Commissioner Baker, that we send a favorable recommendation to the County Council on Change of Zone 54 Application 98-27 for Nanawale Estates and for the reasons and with the conditions from the Planning Department. Any discussion? Commissioner Souza SOUZA: I may be a little confused on the whole thing here but does that say then that it would be a single family residence as Mr. Lim said it would? MCINTOSH: No. MOSHER: No. TANAKA: That would be something that he would work out directly in private with the Association, it'd be a private agreement. MCINTOSH: Not with the Association, I'm sorry. TANAKA: Well, I mean, out of this body anyway. MCINTOSH: Yeah, outside of our body. SOUZA: So as it reads now, they can have ag on those lots and do the spraying or whatever that they GIANNIIVI: Under the County Code, yes. If it is designated as residential/agriculture there is a list of uses in the Code to which agricultural uses can be put. GOLDSTEIN: If I may make a comment here; and that is even if it were in the single family residential zone there is no prohibition by the zoning that you cannot use pesticides on your own lot. MOSHER: That's right. MCINTOSH: That's true. HAZEL: Still, how commercial is this thing going to get? That's GIFF]N: Public testimony is closed. BAKER: Public hearing is closed. TANAKA: You're holding your mike so I thought you wanted to comment on that, Commissioner Souza. Commissioner Mosher. MOSHER: We use Roundup. 55 TANAKA: Okay. Thank you for sharing. Okay, roll call. ORLANDO: You don't spray anacre TANAKA: Go ahead, staff. GIANNINI: Roll call. ORLANDO: The amount FUJIMOTO: Commissioner Giffin. BAKER: Order. GIFFIN: Aye. TANAKA: Mr. Orlando, you're out of order. ORLANDO: No, I'm not out of order. TANAKA: You're out of order. If you know you're out of order, please do not interfere with the procedure. ORLANDO: You do not spray the entire acre with gallons and gallons of TANAKA: Mr. Orlando, I'm going to ask you to remove yourself, okay, if you don't keep in order. Staff, I'm sorry. Go ahead, roll call. FUJIMOTO: Again, Commissioner Giffin? GIFFIN: Aye. FUJIMOTO: Commissioner Baker? BAKER: Aye. FUJIMOTO: Commissioner McIntosh? MCINTOSH: No. FUJIMOTO: Commissioner Mosher? MOSHER: Aye. 56 FUJIMOTO: Commissioner Souza? SOUZA: No. FUJIlVIOTO: Commissioner Togashi? TOGASHI: Aye. FUJIMOTO: Mr. Chairman? TANAKA: Aye. FUJIMOTO: Mr. Chairman, there are five ayes and two noes. The motion carries. TANAKA: Okay, Commissioners, we'll move on to the next agenda Item No. 3. This is for Change of Zone Application No. 98-28. TOGASHI: Mr. Chairman, since Ihad a TANAKA: Commissioner Togashi. TOGASHI: Since I had negative concerns about this, let me make a motion to forward an unfavorable recommendation on Application REZ 98-28. MCINTOSH: You said unfavorable? TOGASHI: Unfavorable. MCINTOSH: Second. TANAKA: Okay, we have a motion by Commissioner Togashi, a second by Commissioner McIntosh, to send an unfavorable recommendation to the County Council on Change of Zone Application 98-28 for Nanawale Estates Company. Any discussion? Commissioner Souza. SOUZA: Again, maybe I'm missing something but I want to pick Commissioner Togashi's mind here. Why, why on this pazticulaz one you think unfavorable? Why not TOGASHI: See, this one here, my feeling was that even though the DOE has a, I guess, a minimum standazd as faz as acreage which is 12 acres for an elementary school, you know, I'm thinking well we should look long term rather than, well, I guess, look at the, I guess, present standazds. And I feel that, well, what happens if, you know, maybe access roads aze going to be needed to the school. And another concern that I had was with respect to the 57 application of resolution regarding catchment tanks on this urban district; and I felt that, well, as faz as, I didn't feel very comfortable, yeah, with having a school being served by a catchment tank whether it's a small tank or whether it's a huge humongous tank. And for that reason I felt that, well, I would prefer the site or this area remained in open space, zoned open rather than be split zoned to an RA-1 and a Ag-5. TANAKA: Okay, anything fiuthec, Commissioners? My comment on this is that the applicant is providing for about half of that parcel to be set aside for, and it says here the development, it will be conveyed to the Nanawale Estates Community Association for future development of public and/or private educational facilities. And we've heazd testimony today about some of the members of the community not wanting a school and the lights and the traffic and all that. But, I, you know, something that I picked up from one of the testifiers was, you know, it's an educational facility which could mean different things, including some kind of botanical educational pazk facility, you know. Therefore, I thought it was, this one in particulaz, would be advantageous to the community on both sides of this issue. Okay, any fiuther discussions? Roll call. FUJIMOTO: Commissioner Togashi? TOGASHI: Aye. GIANNINI: Unfavorable recommendation. FUJIMOTO: Commissioner McIntosh? MCINTOSH: Aye. FUJIMOTO: Commissioner Baker? BAKER: No. FUJIMOTO: Commissioner Giffm? GIFFIN: No. FUJIMOTO: Commissioner Mosher? MOSHER: No, no. FUJIIvIOTO: Commissioner Souza? SOUZA: Aye. 58 FUJIMOTO: Mr. Chairman? TANAKA: No. FUJIMOTO: Mr. Chairman, there aze three ayes and four noes. TANAKA: Okay. FUJIMOTO: Motion does not carry. TANAKA: We need a new motion, Commissioners. That motion does not carry. FUJIMOTO: Not carry. TANAKA: Commissioner Giffin? GIFFIN: Mr. Chairman, I move that we pass on a favorable recommendation for the Change of Zone Application 98-28. MOSHER: Second. TANAKA: We have a motion by Commissioner Giffin and a second by Commissioner Mosher to send a favorable recommendation to the County Council for the Change of Zone Application 98-28 for Nanawale Estates Company for the reasons and with the conditions as attached from the Planning Department. Any discussion? Roli call. FUJIMOTO: Commissioner Giffin? GIFFIN: Aye. FUJIMOTO: Commissioner Mosher? MOSHER: Aye. FUJIMOTO: Commissioner Baker? BAKER: Aye. FUJIMOTO: Commissioner McIntosh? MCINTOSH: No. FUJIMOTO: Commissioner Souza? 59 SOUZA: No. FUJIMOTO: Commissioner Togashi? TOGASHI: No. FUJIMOTO: Mr. Chairman? TANAKA: Aye. FUJIMOTO: Mr. Chairman, there aze four ayes and three noes. The motion carries. MCINTOSH: Does not. GIANNINI: Excuse me, the motion doesn't. FUJIMOTO: Oh, no. It does not carry, Pm sorry. BAKER: Doesn't carry. GIANNINI: You don't have five. You can't make a TANAKA: That's right. GIANNIIVI: You can't make a recommendation. If for recommendation, we always used to hold those over. TANAKA: For recommendations, too? GIANNINI: In the past on recommendations, if you didn't get five they were held over. So it seems you've got one bill that can go up and one that has to probably stay here. MCINTOSH: Yeah, I would make a motion that we send this up with no recommendation. GOLDSTEIN: Yes, that's GIANNINI: You can make that motion. MCINTOSH: Because, because the Commission is so sharply divided, I would recommend that we send it with no recommendation. GIFFIN: To the Council. 60 BAKER: I agree with that. GIFFIN: I agree. GIANNINI: Do you have a second on that? GIFFIN: I second. TANAKA: Okay, we have a motion so that, let me go back. That motion does not carry with only four aye votes. We have a new motion by Commssioner McIntosh and a second by Commissioner Giffin to send no recommendation to the County Council on Rezone Application 98-29, Nanwale Estates Company. MCINTOSH: Because the Commission is, was so sharply divided over what recommendation to send. ' TANAKA: We'll attach the results of the vote. Okay. Any discussion? Roll call. FUJIMOTO: Commissioner McIntosh? MCINTOSH: Aye. FUJIMOTO: Commissioner Giffin? GIFFIN: Aye. FUJIMOTO: Commissioner Baker? BAKER: Aye. FUJIMOTO: Commissioner Mosher? MOSHER: Aye. FUJIMOTO: Commissioner Souza? SOUZA: Aye. FUJIMOTO: Commissioner Togashi? TOGASHI: Aye. FUJIlVIOTO: Mr. Chairman? 61 TANAKA: Aye. FUJIMOTO: Mr. Chairman, there are seven ayes. Motion carried. TANAKA: Okay, the last of the three, Change of Zone Application 98-29. BAKER: Mr. Chairman? TANAKA: Commissioner Baker? BAKER: I make a favorable recommendation to Change of Zoning for REZ 98-29. MOSHER: Second. TANAKA: We have a motion by Commissioner Baker and a second by Commissioner Mosher to send a favorable recommendation to the County Council, Rezone Application 98-29, Nanawale Estates Company, for the reasons and with the conditions as attached from the Planning Department. Any discussion? Okay, roll call. FUJIMOTO: Commissioner Baker? BAKER: Aye. FUJIMOTO: Commissioner Mosher? MOSHER: Aye. FUJIMOTO: Commissioner Giffin? GIFFIN: Aye. FUJIMOTO: Commissioner McIntosh? MCINTOSH: No. FUJIMOTO: Commissioner Souza? SOUZA: No. FUJIMOTO: Commissioner Togashi? TOGASHI: Aye. 62 FUJIMOTO: Mr. Chairman? TANAKA: Aye. FUJIMOTO: Mr. Chairman, there are five ayes and two noes. Motion carried. TANAICA: Okay, thank you very much, you'll be notified in writing, Mr. Lim. LIM: Thank you. The discussion ended at 12:07 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 63