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HomeMy WebLinkAboutMIN PC 2019/02/19 2018-2020Committee on Planning 4th Session West Hawaii Civic Center 74-5044 Ane Keohokalole Highway, Building A Kailua-Kona, Hawaii February 19, 2019 CALL TO The regular meeting of the Committee on Planning was called to order at ORDER: 10:16 a.m., in the Council Chambers, Kailua-Kona, by Ms. Ashley Kierkiewicz, Chair. ROLL CALL: Present: Ms. Ashley Kierkiewicz, Chair Ms. Susan L. K. Lee Loy, Vice Chair Mr. Aaron S. Y. Chung, Member Ms. Maile Medeiros David, Member Ms. Karen Eoff, Member Mr. Matt Kaneali`i-Kleinfelder, Member Ms. Valerie T. Poindexter, Member Mr. Herbert M. "Tim" Richards, III, Member Ms. Rebecca Villegas, Member STATEMENTS The Chair directed the Committee to proceed to the next order of business, FROM THE Statements from the Public on Agenda Items. PUBLIC ON AGENDA ITEMS: The following individuals registered to speak and came forward when called by the Chair: Dave Kisor: Cory Harden, (representing the Sierra Club, Moku Loa Group) Dwight J. Vicente Koran Munafo: Claudia Rohr: Shannon Rudolph: Bill 16 (Comm. 64), in opposition. Bill 16 (Comm. 64), in opposition. Bill 16 (Comm. 64); Bill 23 (Comm. 92); and Bill 24 (Comm. 94), comment. Bill 16 (Comm. 64), in opposition. Bill 16 (Comm. 64), in opposition. Bill 16 (Comm. 64); and Bill 23 (Comm. 92), in opposition. PC -4 February 19, 2019 COMMUNI- The Chair directed the Committee to proceed to the next order of business, CATIONS: Communications. (There were none.) ORDER OF The Chair directed the Committee to proceed to the next order of business, Order RESOLUTIONS: of Resolutions. (There were none.) BILLS FOR The Chair directed the Committee to proceed to the next order of business, Bills ORDINANCES: for Ordinances. CHR KIERKIEWICZ: Mr. Clerk, if you could please read in Bill 16. Bill 16: AMENDS ORDINANCE NO. 92-122, WHICH RECLASSIFIED LANDS FROM RESORT -HOTEL, SAFETY (V -S-.75) TO LIMITED INDUSTRIAL (ML -20) AT WAIAKEA, SOUTH HILO, HAWAII, COVERED BY TAX MAP KEYS: 2-2-033:011, 012, 019, AND 020 (Applicant: Piilani Partners, LLQ (Area: approx. 2.5712 acres) The Windward Planning Commission forwards its favorable recommendation for this amendment, which would allow a five-year time extension to comply with Condition C (Final Plan Approval) and Condition D (Complete Construction). The applicant is requesting the extension to develop a potable water well and bottling facility and related improvements on the approximately 31,000 square feet portion of this property. The property is located at 525 Pi`ilani Street, at the northeastern corner of Pi`ilani Street-Mililani Street intersection. Reference: Comm. 64 Intr. by: Ms. Kierkiewicz (B/R) Motion to Approve: Ms. Lee Loy moved to recommend passage of Bill 16 on first reading. Seconded by Mr. Richards. CHR KIERKIEWICZ: Will the applicant and/or representative please come forward? (Note: At this time, Planning Consultant Sidney Fuke, representative for the applicant, came forward to address the members of the Committee.) CHR KIERKIEWICZ: If you could introduce yourself of the record, please. MR. FUKE: Good Morning, Madam Chair, members of this Council. My name is Sidney Fuke. I'm a planning consultant and I'm here assisting the landowner and the applicant on this particular time extension request. Your Clerk had Page 2 PC -4 February 19, 2019 already indicated where the property is, so I won't bore this body with the location. But I'd like to just kind of share some general information regarding the history behind how this property got redesignated Industrial and then subsequently zoned Industrial. Back in 1991, Suisan, the owner of the property, the then and current owner of the property, had sought and successfully received a General Plan amendment changing this area from Resort to Industrial. And concurrent with that General Plan designation, the property was also rezoned from Resort to Industrial. What lead to the support of that Industrial classification was the Hilo Community Development Plan (CDP), which was adopted in 1975, and at that time, the Hilo CDP projected that there was a need for at least 175 acres of additional Industrial -zoned land in the City of Hilo by the year 1990. Part of the reason why that CDP had made that kind of bold statement that there was a need for additional Industrial zone in the City of Hilo, is that the State of Hawaii and the Department of Hawaiian Homes basically have a monopoly on all Industrial -zoned properties in Hilo. You have very few land in the Hilo area that's privately owned, and so the Council, in its wisdom, felt that it was appropriate to designate this area for Industrial and provide some private land opportunities for industrial activity. Suisan at that time had proposed the property to be used for a food and fish processing facility. Somewhere along the lines of like Amano Fishcake, maybe a kamaboko factory. You know, those kind of things. And for some reason, Suisan didn't proceed with the project. The current, well the applicant right now is like Piilani Partners, and I'm just trying to put some relationship between who Piilani Partners are and who the landowner is. The landowner is, as I mentioned earlier Suisan, and Piilani Partners is the applicant. Piilani Partners has the ability as an option to purchase the property if the SMA (Special Management Area) permit for a well drilling and a bottling facility is approved. Now, the SMA permit, you know, as the Council understands, like land use decision making on this island, probably this whole state is kind of like divided. You know, you have some responsibilities that are conferred to the Council, the legislative decision makers, and you have some decisions that are made by the Planning Commission. And in this situation here, the Planning Commission has the authority to grant a use that's consistent with the zoning. The SMA permit that is currently pending before the Planning Commission, if the commission denies the proposed bottling plant, you know, on the SMA permit, this action before this Council right now, which is the rezoning time extension is still needed, because you have an array of uses that are allowed by the Zoning Code within an industrial area. Page 3 PC -4 February 19, 2019 Water -bottling facility is one; food processing is another; restaurants would be also. Office uses are also allowed, so you have this array of uses that would be permitted. So this is what, from the landowners' standpoint—it's seeking a time extension, so in the event the bottling plant goes down, a decision being made by the Planning Commission goes down, well at least you won't be denying or frustrating the landowner of other land use opportunities for the subject property. And that's the reason why this extension is kind of critical. So, if you look at, you know like all rezoning time extension requests that the Council considers. You know, there are criteria that the Council has to be mindful of. One is that, is there any change to the General Plan, and in this situation here, you know, it's maintained that the General Plan was designated Industrial in 1991. There was a General Plan update in 2005, and that area still remains. So, in terms of whether the zoning is consistent with the General Plan, the answer to that question is yes. The other thing, you know, you need to look at is like whether in the infrastructure is still adequate to service the industrial uses in that area, and I would venture to say, yes. There is water, there is a sewer line. With the proposed condition outlining the Planning Director's and the Planning Commission's recommendation on this bill, there will be curb gutters sidewalk fronting the property. On the issue of concurrency, it meets the concurrency test relative to Civil Defense, Water, Sewer, Traffic. We had an archeological survey found in that area and done for the property. And the survey basically concluded, there is no archeological impact. We also had a Phase I environmental study done just to determine whether the property has any arsenic or asbestos, you know, based on prior use, and the conclusion was, no. The only thing that the archeologist and the Phase I environmental scientist who trumped the property found was it was like a contingent of homeless camps in that area because it's all forested right now. So, getting back again, you know, I would kind of request that this body look at the reasons for granting a time extension for zoning change and don't be confused by the current pending SMA application that's before the Planning Commission, because they are separate issues. Sure, there are some overlap, but as I mentioned earlier, if the SMA permit goes down, the landowner Suisan still wants the opportunity to be able to have other uses other than a bottling plant. CHR KIERKIEWICZ: Thank you, Mr. Fuke for setting the stage. I'm going to open it up to my colleagues for questions. Ms. Lee Loy. MS. LEE LOY: Thank you. Thank you, Mr. Fuke and thank you for divorcing the two issues, because the Special Management Area permit is going to take care of itself one way or another. And actually, what I'm really appreciating is, the Page 4 PC -4 February 19, 2019 time extension from the current zoning goes from 37 different permitted uses to 52. And so, for the landowner to have a very large suite of options that if the bottling plant which will work itself out doesn't materialize, it actually creates more opportunities for that property. I am the representative from that district. I am largely concerned with the homeless population that is over there. It's right adjacent to the Civic, and so there actually are other opportunities if that water bottling doesn't materialize to help enhance the Civic and all of our park facilities there. There's conversations about the adjacent property possibly turning into another park or a skate park area. And so, again, I just appreciate you divorcing the two. I've always asked this of all the applicants. You know, the conditions of approval that are outlined. You know, do you support those conditions? MR. FUKE: Sure, yeah. The Planning Director had recommended favorably on the time extension and other related amendments. The Planning Commission accepted those recommendations. During the course of the Planning Commission hearing, we or I, on behalf of the applicant and landowner noted that those proposed conditions were acceptable. So, the direct answer to your question, is yes, they are. MS. LEE LOY: Thank you, I yield. CHR KIERKIEWICZ: Thank you, Ms. Lee Loy. Any other comments or questions? Ms. Poindexter. MS. POINDEXTER: Yeah. If you don't get this extension, what happens? MR. FUKE: Well, you have to look at it from the landowners' standpoint and not so much Piilani Partners, because Piilani Partners, you know, they have the critical permit for Piilani Partners, sure this has some tangible relationship, but the most critical permit is the pending SMA permit before the Planning Commission. So, if the time extension is not granted, then even if Piilani Partners—the SMA permit is approved, then it could put a question as far as whether the bottling facility would be permitted. And because, you know, right now the property has an Industrial zoning that really, you don't know whether it's an Industrial zoning because you haven't complied with the different conditions of approval. So, on paper its zoned Industrial, and so even if Piilani Partners', you know, request gets turned down. And now, you're Suisan and you want to put in like a restaurant. The question is like, can you, based on the current language without any time extension. You cannot. Page 5 PC -4 February 19, 2019 MS. POINTEXTER: So, Suisan wouldn't be able to come in to do another permit for themselves, to get, you know, a special -use permit to do their restaurant and then work on a different type of zoning at that? MR. FUKE: Well, it's a question of what kind of zoning, because if you want to have a zoning other than an Industrial, then the General Plan has to be amended. Because, you know, you cannot have a zoning designation that's incompatible with the General Plan. MS. POINTEXTER: And then they're still working on the General Plan. I don't know how long that will take. Now, if this gets postponed, what is your drop date for it getting an extension? MR. FUKE: When you said like, what gets postponed? MS. POINTEXTER: If this gets postponed, how much longer do you have to go in for an extension? MR. FUKE: Well, from a timing standpoint, the Planning Commission by law, by its rules rather, has 60 days from its last hearing on that item, which was February 7th. So by April 7th, if the Planning Commission does not render a decision, the pending SMA application before the commission is defacto denied. So, but the question is like from the landowners' standpoint, you know so, they don't necessarily want to wait until the outcome of that because if it gets denied, that's a separate track. If it gets denied, and you know, the landowner, Suisan or whomever at that time, want to have like another use, without this time extension, they wouldn't be able to apply for another SMA application, whether it's for an eatery, office use, warehouse, self -storage facility, whatever have you. The extension is needed regardless of whether it's for the water -bottling plant, but it's for the whole array of uses that's permitted under the ML (Limited Industrial) zone. MS. PONTEXTER: And then you talked about an environmental, either impact statement or something that was done that was only Phase L Why wouldn't they do a full blown EIS (Environmental Impact Statement) then? MR. FUKE: Well, the Phase I, I think there is a need to make a distinction between like what is a Phase I environmental study versus like an Environmental Impact Statement or like Environmental Assessment that's required in accordance with Chapter 343, the Hawaii Revised Statues. The Phase I environmental study is usually commissioned by a landowner just trying to see whether there are any, you know, potential environmental skeletons on the property. You know, whether, because of the size proximity to the Canec facility, they kind of wanted to know, oh okay, if we do something over here, like Page 6 PC -4 February 19, 2019 is there a potential for contamination. The prior use on the property was also like for warehousing activity. So, you don't know whether there were like chemical spills or those kind of things, so that was why the Phase I environmental study was done. The point as far as like whether there is a trigger for an environmental assessment, because you know, you're going to extend the water line and sewer lines, son on and so forth. The short answer to that question, we already got correspondence from the County Department of Public Works basically saying, if you're doing improvements within the existing right-of-way for water line extension, hook up; sewer line extension hook up within an existing right-of-way, they fall under the category of an exempt action. So, yes, there is a potential EA (Environmental Assessment) trigger, but as far as like whether it would be applicable over here—it's applicable, but they would qualify as like an exempt action. MS. POINDEXTER: Right. And that's very unfortunate. I think a lot of things happening on Hawaii Island when you exempt the EIS, you know, down the road it may become a problem. And that's why to me, it's important to have an EIS. But I'm just not comfortable with moving this through, and you know, come for—if it does go through, it'll have a Council hearing, one more or two more. But, it'll give me time to get a little bit more comfortable in finding out more, because I'm just concerned that, you know, they may want to, morph it to accommodate their bottling plant, and I'm just not comfortable with that. It seems there's some type of underlying reason for this, and I hear what you're saying and I understand that. I'm still, like I said, not comfortable with what the underlying or unintended consequences may be for our people. So, I'll yield at this time. Thank you, Madam Chair. CHR KIERKIEWICZ: Thank you, Ms. Poindexter. Ms. Eoff, and then I'll go to Ms. David. MS. EOFF: Thank you, Madam Chair. So, this is confusing, but I do understand the two tracks, the SMA permit and this request for a time extension. But the problem I see, is that—well besides some of the things that testifiers have been talking about. And I read through the transcripts from the Planning Commission, and they too had concerns about the water bottling plant. However, this bill is tied to that project, because as I read through the bill, the conditions within it are directed towards that proposal. And so, I don't know, it's like kind of a cart before the horse problem, but I realize they're up against the deadline for a time extension too. So, I guess that is your issue and why you're here today, when it seems a little bit premature for me to be looking at a time extension for a project that is maybe not even the project proposed. Or, will, in the future, not be the Page 7 PC -4 February 19, 2019 proposed project because of something that will happen with the SMA permit not being approved. MR. FUKE: I think that like, I'd like to just kind of respond to that, Ms. Eoff. You know like, historically the notion of contract zoning has been dismissed by the courts as being like illegal. Contract zoning is that if you have this array of uses and then you approve a zone change, whether it's like for ML or Single - Family Residential or Commercial. And then you cherry pick the kind of uses that would be allowed within that ordinance, and the courts historically have said that, you know, that's illegal because you're denying that person of whatever rights that zoning confers. And also, you're subjecting yourself for potential backroom dealing. And so, the courts historically have said, like no, contract zoning is not allowed. So, if you allow for—in this situation here what's appropriate is the need to look at the zoning category, which is ML. And if you look at the conditions that the staff had proposed, the staff had proposed generic conditions that deal with the ML area. Curb, gutter, sidewalks, whether you—you know, for example, curb, gutter, sidewalk requirement. So, whether you do this bottling plant if it gets SMA approval; or if you do a warehouse; or if you do a restaurant, that's a standard requirement. Sewer hookup, it's a standard requirement. So, if you go through like the proposed conditions A through R, they're basically generic. It's not designed to address the impacts of a bottling plant. It's designed to address the impacts of an array of uses within the Industrial area. MS. EOFF: Okay, yes, and thank you for that. But, what I'm saying is when we look at a time extension, I guess, I don't know, 27 years or how long has gone by, but it's potentially inappropriate to have an Industrial use on that parcel at this time. I know you're saying that it's Industrial all around, but other testifier—and I'm not that familiar with the area but other testifiers have said that area has turned into more of a recreational area and possibly the Industrial zoning isn't appropriate anymore in that. MR. FUKE: Well, you know like, this gets back again to the whole notion of spot zoning. I know there were comments made about, you know, this is really bad because it's spot zoning. Spot zoning in concept is bad because—it's not inherently bad. It's bad if the zoning that you're introducing into an area is independent of a long-range plan. And so your long-range plan for this island is your General Plan. So, if the zoning is consistent with the General Plan, and that's the first zoning you're going to have in that area, then sure, that's a spot zoning because surrounding area is not similarly zoned. But the question is like does that zoning comport to the long-range vision as embodied in the General Plan LUPAG (Land Use Pattern Allocation Guide) map. And the short answer to that question is that yes, it does. So, that's why it's not spot zoning Page 8 PC -4 February 19, 2019 MS. EOFF: But the surrounding parcels have been MR. FUKE: No, the surrounding parcels are still, some you have Residential; if you go down into the Waiakea homestead area, you have some areas that have been designated Industrial; you have some Open zoning area because it's close to Ho`olulu Park. It's close to the Wailoa State Park, but these are like several privately owned properties in that area. And then, this is one that has been designated industrial. Again, part of the rationale behind the decision maker back in 1991 for considering this area for Industrial was the sheer lack of privately owned Industrial properties. Here like in Kona, you know, you have the Lili`uokalani trust area, but you have like an alternative for privately owned Industrial uses right here in the Kaloko area that are privately owned. If you go to Hilo, you look at the amount of Industrial zoned lands that are not controlled by the State of Hawaiian homes, you'd have very few. On paper you would think there's a lot, but in reality it's not. MS. EOFF: Okay, well thank you for the explanation. I don't know if I have a little bit more time, but okay. Who in Hilo would be? Jeff? Okay, I don't know which one would be the best to ask. CHR KIERKIEWICZ: Jeff. Hi Jeff. Great to see you. And Amy also, could I ask you two to come forward please? (Note: At this time, Planning Program Manager Jeff Darrow and Deputy Corporation Counsel Amy Self came forward to address the members of the Committee.) CHR KIERKIEWICZ: Thanks for being in Hilo and available to answer our questions. Ms. Eoff, do you have questions for Jeff and/or Amy? MS. EOFF: Okay, thank you. Good Morning. So, we've been getting a lot of questions about—and I'm reading in both Leeward and Windward Commissions. They have questions regarding time extensions and exactly what we're supposed to do with that. Some of them come in after the date that they were supposed to. And some of them, I think, I believe this one is on time, but many, many, many years later with changes to the surrounding area, it's kind of difficult to know what exactly is our role in approving a time extension, and how much we're supposed to look at and have uses changed. And what happens if we don't approve a time extension. I'm not sure if the zoning would revert, in this case, back to aI think someone mentioned Resort, or what was MR. FUKE: You would have to have a separate legislative action to make it to rezoning. The property would have to be rezoned from Industrial to Resort. Page 9 PC -4 February 19, 2019 MS. EOFF: So what happens if we don't approve a time extension? MR. FUKE: Then you have the zoning that what it's called like almost like a zoning in limbo. You have a zoning that's on paper, but the ability to do anything or use the property pursuant to that zoning is zero. MS. EOFF: Okay, so I guess my question to the department then, would be if the zoning was in limbo because we don't approve this bill, and the new project is proposed, do they have to start over then and come back in for a change of zone? What happens in that case? MR. DARROW: Good Morning, Council Members and Chair. My name is Jeff with the Planning Department, Jeff Darrow. It sounds like the question is focused on time extensions. This has been a question that's been coming up more often because of the fact of a number of time extensions coming in and going before the commission and the Council. When we look at a time extension, basically, normally it's the same applicant or a successor that's proposing a similar project that was proposed previously. There are times where it's a new project that's being proposed. Regardless of that, the Planning Department usually looks at whether or not that particular request continues to be consistent with number one, the General Plan; number two, the Zoning Code; we look at any updates that might have occurred, such as updated community development plans; we also look at whether or not it's consistent with the original reasons for approval. That's what we basically looked at this particular project, even though the project is changing, it's a similar Industrial -type use that the applicant is requesting. If we were to not allow time extensions as an option, then we would have to look at some sort of process that would give the original time; the original request, a particular time. Let's just use ten years as an example. If the applicant does not construct that particular project within a ten-year timeframe, then what would need to happen is that at that point, that particular request would need to be revoked or ordinance, or whatever you're asking for. And then, a new applicant or the same applicant would have to come in and request a new change of zone for that particular project. So you can see the different options, either they come in with a time extension and answer all the similar questions and propose a new project. Or, we have to go through a revocation of the original and come in with a new application. At this point, we've been—the allowance for time extensions are available to a particular applicant, and so that's what they come in for. Page 10 PC -4 February 19, 2019 MS. EOFF: And so, the Planning Department looks favorably on allowing this time extension, because whether it's a water bottling facility or some other type of industrial use, the opinion of the department was that, the industrial zoning with all of its potential uses is still appropriate for this parcel? MR. DARROW: Correct. It still continues to be consistent with the General Plan with the zoning for the property, as well as the original reasons for approval of the zoning. MS. EOFF: Okay, well, thank you for that explanation. I'm going to yield now because I'm sure there's other questions. Thank you. CHR KIERKIEWICZ: Ms. David. MS. DAVID: Thank you, Chair. Mr. Fuke, you spoke about the timeline for the SMA permit for Piilani. What is their timeline on going through the SMA process? MR. FUKE: Well, it's been kind of like going on and on. It's kind of like a festering sore, especially for me because I don't want to be in a state of, you know and attend commission meetings any longer than I have to. But, in this case here, it started in September and there are like continued hearings. And the last hearing occurred on February 7th. And at time, the Chair had closed public hearing, and based on the commission's rules relating to SMA, a decision has to be rendered within 60 days after the close of public hearing, and failing that then the request would be automatically denied. My understanding, the commission's reasons for deferring action, and perhaps they weren't necessarily aware of the time constraints then, but was still—the commission's reasoning for deferring action was to enable the State Commission and Water Resource Management to complete its public hearing process and an update on the, I guess, like a statewide water master plan. And that timeline for all intents and purposes is kind of like, saying the General Plan update, when it's going to be done. I mean, it's an evolving process. MS. DAVID: Right. MR. FUKE: So, if the commission does not render a decision by April 7th, I doubt very much, in my opinion, that the State Commission on Water Resource, you know, will come up with a plan by then. MS. DAVID: And so, if that's the reason why the Planning Commission was deferring this matter hoping to be get that response from the Water Commission? Page 11 PC -4 February 19, 2019 MR. FUKE: Yeah. Well, I can't speak for, you know, what was in the mind of the commission when they made—all I'm just reciting is whatever was sent to me as the applicant's representative as far as the commission's reasons for the deferral. One other thing too, you know, people fail to understand is that even if you go through the zone change, this SMA approval process, and if it gets approved, the one body that still must grant their approval for this well is the State Commission on Water Resource Management. So from our standpoint, you know, we were just saying like, why defer it? You know, because you have this Water Commission that has a responsibility for all ground water resources in the State of Hawaii. They have—they're charged with that responsibility. MS. DAVID: I understand that and I'm hoping that the Water Commission does take serious note of the public resource for this kind this process and facility. It hasn't—the testimonies that we have been receiving have a lot to do with the fact that our water is a public trust resource. And so, I can understand the sentiment of our people in our communities about bottling plants such as this. But, other than that, is there a timeline for this request for extension on Suisan's part? The extension on the conditions? MR. FUKE: Well, if I were the landowner, I would want to get these things settled, because say two months from now, you know, a month from now, a month-and-a-half from now, the commission decides to deny, or well, defacto deny, you know, the bottling plant proposal. Then as a landowner I want to be in a position to quickly have someone come forward to me to say like, I have this proposal. And given the absence of privately -owned industrial properties, I think this is like one of the better ones. So, if I were the landowner, I'd want to, at this stage, taken off—you know, settled as soon as possible and let the bottling SMA application take its course. And wherever it ends, it ends up. MS. DAVID: I see. And would you say that the bottling, the Suisan request for extension is basically, not contingent, but heavily relies on the fact that the bottling company's SMA permit, you know, would be approved? Because, is there—the owner is Suisan, but the developer of the bottling company is an entity. So, I'm looking at this. I understand that these are two separate tracks, but I think what people are seeing is that if we approve the condition to grant, it also allows the sale, or of the water facility process to go forward with that extension. It's a very complicated way to work this, and I'm just wondering if the time extension, and maybe this is a Planning Department question. Mr. Darrow, we've experienced in the past people coming in way after the timeline to request an extension and then they request it anyway. What—and are granted; "I forgot, we didn't realize we had to request an extension," and I was just wondering if there would be an extension of the request to extend the condition. Because to see what Page 12 PC -4 February 19, 2019 would happen at the SMA level. Because I know this is two separate tracks, but it pretty much to me seems connected to each other. One for the mere reason that we want to preserve Suisan's ability to utilize their right to develop their property with the current zoning. But in this case, at the same time while they're doing that, they're pretty much solidifying a purchaser or a developer of a business on their property. So, I see it both hand-in-hand, although it's separate. You know what I mean? And that's why I'm asking Mr. Darrow. Is there time for the Planning Department to wait for the outcome of the SMA process, whether or not to grant this? MR. DARROW: Council Woman, David, if understand you correctly, you're asking the timeline for the time extension for the rezoning, if there's a timeline. think, I believe what was being said earlier by Mr. Fuke is that these really are, and I think everyone else had mentioned it. There are actually, two separate actions. They aren't necessarily dependent upon each other, although the water bottling facility cannot go forward unless this time extension is passed. If this time extension is not passed, then not only will the water bottling facility not be able to go forward, but no other project on that particular property will be able to move until the zoning is dealt with on this particular matter. MS. DAVID: I see, so you're saying then this application for this condition change could not be deferred until after the SMA process on the bottling company without any penalty for Suisan? MR. DARROW: That would be the call of the Council, but I believe that it could be deferred. I'm guessing your reasoning is that you're wanting to see what happens with the SMA, if it gets approved or denied. MS. DAVID: Exactly. And because not only what will happen at the SMA permit level, but we got the studies from the SHPD (State Historic Preservation Division) is still needing the submit their approval of the archeological inventory study. And the Water Commission, and basically I think at that SMA hearing, the public's opportunity to weigh in to bring forth the issues related to public trust resources and etcetera, that is their only opportunity. And correct me if I'm wrong, but the SMA permit process is strictly a Planning Department decision. And so, the SMA process, whatever the outcome is will never come before this body. MR. DARROW: Because this is an SMA major permit, it's actually approved by the Planning Commission; the Planning Director will forward a recommendation. Normally, in these particular type of situations where you have an ordinance that goes before the Council and a permit that goes before the commission, there will be a condition placed on the SMA permit or whatever other type of Planning Commission permit, that the effective date of that particular permit is the effective Page 13 PC -4 February 19, 2019 date of when the ordinance is approved or the time extension for the ordinance is approved. So again, it could be delayed, but with the understanding that that condition will remain on the SMA permit, that permit is not effective until the ordinance is approved. MS. DAVID: Okay, I see. Mr. Fuke, what are your comments? MR. FUKE: Okay, I'd like to kind of make this comment. I think that, true, this body has the authority to defer this application. My request is that you don't defer it, and this is primarily for this reason. If you defer it because you're saying that you kind of wanted to see what the Planning Commission is going to do on the bottling facility, I think that indirectly, you're sending a message to the commission that, "If you approve it, we may not necessarily approve the time extension." And so, the question then, you know, does this body then indirectly, you know like, influence an independent body like the Planning Commission to make its decision. And I would think that it's best that you have the commission, who are appointed by the Mayor and confirmed by this body here, let them make an independent decision. Don't cloud their decision making by you deferring this action. That's why I had, like in the beginning to say that, look at the reasons for the time extension on the zoning, not the specific use. If you're getting into this specific use and that's the reason for the denial of the time extension or the deferral, then I think it's sending a subtle message, or maybe a direct message, to the Planning Commission. Which I would hope that you would not do. MS. DAVID: I see. I understand what you're saying and it works both ways also. And the other thing is the CHR KIERKIEWICZ: Ms. David, if you don't mind, could you wrap it up for your discussion please. MS. DAVID: Yes, I will. I have just one more, one statement. But the condition for extension is not for the Suisan. The initial development is for the bottling company. So with that, I yield. CHR KIERKIEWICZ: Thank you, Ms. David. I saw you had your hand up, Ms. Villegas, but Mr. Richards has the floor first. MR. RICHARDS: Thank you, Chair. And thanks to all my colleagues for the conversation. I'll go back to something that Councilwoman Lee Loy said at the get go. And divorcing the two components that we have before us. We're talking about an extension of the zoning timing, and we're talking about the bottling. And I get what people are saying, the concern going forward. Is this the right public policy going forward for the use of the land? And I hear that concern. But Page 14 PC -4 February 19, 2019 coming back to the landowner and looking at the zoning, it's a reasonable request from a landowner to extend the timeline. And they're trying to keep their options open. I can appreciate the economic downturn during the nineties. There's another one in 2008 where it changes plans, especially if you're not a multi -national company. If you're just in a local environment, trying to go forward sometimes gets stuck, and I also appreciate a landowners' interest in exploring options to go forward. And if you look at our County, it comes back, and I know my Council Members are going to smile when I say this, it's all about the economy. And if we keep pumping the brakes on the economy, we're not going to get that recovery. We work really hard to try and get things rolling, and I'm not convinced the bottling company is the right answer. I'm not. But I am convinced that I think a landowner like Suisan has a right to ask for an extension, and we have an obligation to help them out to try and get things going. So I can definitely see the difference between here. And no disrespect to my fellow Council Members. Council Woman David, I hear your concern, I truly do. But I also think there's a big concern for the landowner as well. And so, I get this request and we have to keep it separate. I understand that—your concern about, if we don't think that this is the right option, there's going to be way to put the brakes on it later. What I'm hearing is, yes, maybe not at the same level. But I get concerned if we're not doing what we are obligated to do, which is take care of all the constituents. So, with that I'm going to yield. I get the request, I absolutely get the request. I'm going to be supporting it. Thank you, I yield. CHR KIERKIEWICZ: Thank you, Mr. Richards. Ms. Villegas. MS. VILLEGAS: Aloha. I understand the request, and I also understand this it's a game, right? We divorce the issues from one another, and then there's legalese. But what happens when you separate these two issues is it becomes an avenue for this body to become disempowered in how to play a part in representing our constituents. This is how I feel. My email's been blowing up; my phone has been blowing up. People are opposed in general to Piilani Partners' project. However, I do understand Suisan. I understand the concept of this separateness; however, looking historically at what's happened, not only in this County but in this State and this Country, this is how people get unheard and disempowered, and we lose their trust in us as a body. Because there are certain times when there's a security in going to those different avenues, and then there other times when I feel like it just becomes a game. Suisan hasn't tried to develop this property in how many years? Now, there's all this controversy with Piilani Partners. Now, there's all these people out Page 15 PC -4 February 19, 2019 there, saying please don't do this; please don't allow this to happen. And now, there's a new avenue? And so I understand the fundamental ideas about protecting Suisan's rights as a landowner, I just don't agree with. And you know, in my job, mind you this isn't in my district, but it is in the County. So listening to the overall constituents, the answer for me will be no, because I don't seeI see that if I vote yes, then essentially I'll be disempowered to have a vote in the future in what happens here. And to me, I just see this as kind of a game and a play to get where they want to get to in the long run. And I may not have all the exact terminology correct, but I just see it overall from a broader perspective, like wait a minute, this game has been played how many times? In how many industries? On how many different pieces of property? And we end up getting to where we didn't want to get to, and then wondering how we got there. And so I guess I see this opportunity to recognize the wisdom in not divorcing these issues, and to recognize their connection, and to recognize the concerns of the people. Because if the worst thing that happens is that it has to take a pause, and we have to revisit zoning, you know, sometimes the worse thing to happen isn't a pause. Yeah, so that's my mana`o on the issue, I yield. CHR KIERKIEWICZ: Thank you, Ms. Villegas. Mr. Chung. MR. CHUNG: Thanks. You know what, I can understand how people can confuse these two issues, but you know, as Mr. Fuke stated, as our Planning Department has stated, and which I'm going to stated right now, these are two separate issues. And as lawmakers, we have to stay in our lanes. It's very important. If we were to vote against this or to defer it, pending the outcome of this other water bottling plant, then this would amount to a back -handed way of trying to down that project, and that's wrong. It's absolutely wrong. This, as Mr. Fuke stated, you know, we cannot do contract zoning. This is really going to put the Planning Commission in a bind. Now you know, Ms. Lee Loy, she rarely makes mistakes, but she made a mistake today. This property is in my district, okay. It's in District 2. She represents the other side of Manono. I'm on the opposite side, and I know this because my mom lives just a few houses away from the proposed project and she votes for me. Or at least she said she voted for me, anyway, okay. And, you know, there's been some talk about the changing character of that area. I've lived there since 1970. This rezoning was done in 1992. Twenty-two years after I had moved there, and I'll tell you, if the complexion of that area has changed, it has changed to become more Commercial not to become Open. The whole Manono area is slowly becoming a Commercial corridor. Since I moved there in 1970, you have Freddie's Manono Mini Mart; you have the 500 Manono, which is right next door. You have a rezoning of the architectural company across the street, and you have a bigger development which Page 16 PC -4 February 19, 2019 has all of those. You know, the Island Style Cafe, Takenoko, and Tokunaga. That whole corridor is becoming Commercial, plain and simple. The only Open space, is yes, the area that we're talking about. But the people that live in there are all squatters, and we're trying to drive them out of that area. So, you know, I hope all of you who don't live in that area would at least try to please—try to understand where I'm coming from. For many, many years, I'm going to talk about something separately now. Our legislative delegation from the Big Island has been working really, really hard to try to get legislation passed relating to the Kanoelehua Industrial Area in the Banyan Drive area. As Mr. Fuke noted, the reason for that is, and what our legislatorsI think the people in Honolulu away from Hilo, don't really understand is that most of the Industrial, the Resort areas, and all of these things are controlled by entities other than private individuals, and it's wreaking havoc in Hilo. And, we've always asked, all we're ever asked is give us some control over these properties so that we can dictate our own future. The reason why this property was zoned Industrial or Resort even was because of this. It was in response to this screwed up situation that we're facing. So, you know, that's the bad part, I strongly support this extension, and you know I mean, you guys want to make a statement against Piilani Partners and the water bottling plant, well do it. But we're really on two different tracks. Try to help out Hilo first. You know, we need the help. We need the inventory. That's all I have to say, thank you. CHR KIERKIEWICZ: Ms. David. MS. DAVID: Well, thank you for that enlightening comment, Mr. Chung that this is your district. And really based on what we've discussed, everyone's discussed, right, today, and especially you, Mr. Chung, I'd like to make clear for the record, that the condition request, the extension is something I will support. But on the record, I want to make it perfectly clear that I do not support any SMA application for the Piilani, and my vote today, in favor of Mr. Chung is strictly for the condition as he explained it. And so, that's all I have, I yield. Thank you. CHR KIERKIEWICZ: Any other comments, if not I would like to make a few statements. Okay, Ms. Lee Loy and then Ms. Eof£ Ms. Eoff, you have the floor. MS. EOFF: Thank you. Yes, and that's what my line of questioning earlier, was to try and separate the two permitting processes. But, I'm still just a little bit confused about whenever we see a request for rezoning or even for a time extension on a past rezoning, we usually see it in connection with the proposal. And I know what you're saying, there's a whole list of appropriate uses under different zonings, but this is just for the record. I know we can't get an answer because I've tried and haven't yet been able to completely understand this. But Page 17 PC -4 February 19, 2019 our role during requests for time extensions, because we're going to see these keep coming back. And I feel like the power that Ms. Villegas is talking about is vested in us when years, and years, and years have gone by, and a proposal which was granted zoning twenty -something years ago, not just in Hilo but anywhere, times have changed. And although I've never seen us, I don't think, us deny a time extension request, and I know there's probably some property rights issues involved in that, but I still am wondering what exactly we don't have to, I guess, talk about this right now, but it's just that I still, in my heart, believe that these time extension requests are our opportunity to relook at the surrounding areas or the traffic, or whatever it is that has caused the change from when the original zonings took place. So, in this case, and while Mr. Chung has given me a better idea where its located and what's around it, and I don't know if Industrial zoning is still really absolutely correct, but I know it does offer a whole range of potential uses, and here's my one question, would almost any use that comes forward there, if it isn't Piilani Partners, would it require an SMA permit because of the location? MR. FUKE: That's correct. MS. EOFF: Okay, so there's another form of checks and balances here for the community, and for all of the concerns that have been brought up in our testimony that we're receiving in our emails. But I'd like also for people to understand this that it got combined because of the timing here in this request to the Planning Commission for an SMA permit. And there was one other thing that happened, the Planning Commission, which I don't know if it's relevant to our discussion, but they had to revoke a previous SMA permit, and I don't know if that's good for us to understand that process as we go forward or does it matter, but what I think I'm understanding is that the Piilani Partners project is sort of a pending idea for the property that is controversial and will have to go through its process that it's embarked on. For Suisan to keep the Industrial zoning on their parcel they need this time extension, and it's not unusual for us to do that. We don't know what project is going to come forward there, but whatever it is, we'll have to go back to the Planning Commission for an SMA approval. MR FUKE: That is correct. MS. EOFF: And as I guess we are all aware, once that happens we don't get another look at it unless there's, I don't know something that happened, but as far as the SMA process, we're out of that loop. Page 18 PC -4 February 19, 2019 MR. FUKE: Yeah, and therefore that's why the proposed conditions are like generic. You know, like site improvements, fair share contributions, so on and so forth. And they would apply to whether it's Piilani Partners or a new restaurant, or warehouse, or whatever have you, they still would be applicable. MS. EOFF: Okay. Thank you. CHR KIERKIEWICZ: Thank you, Ms. Eof£ Do you yield? MS. EOFF: Is there anything else Planning needed to add to this conversation or are we on track so far? MR. DARROW: On track. MS. EOFF: Okay, thank you. CHR KIERKIEWICZ: Thank you, Jeff Ms. Lee Loy. MS. LEE LOY: Thank you. And I'm really glad that the rest of this body went through that exercise. I sit here understanding very clearly the tracks. So, I'm glad that this conversation happened so that everybody saw that transparent decision making happen. And I stand corrected, it is in Mr. Chung's district, but sharing it I just also want to provide this body a larger perspective of what we're trying to drive by way of economic development in Hilo. It is tying Banyan Drive, which we're facing a big hiccup with their state leases; the commercial opportunities, and East Hawaii regional multi -complex sports area. All this supporting commercial restaurants, opportunities for housing, tying that up Manono to our University system. This is a larger, overall plan for economic revitalization for Hilo. Walkable communities. I believe one of the conditions is curb, gutter sidewalks. These are all things that help revitalize Hilo in a smart way. I am going to support this because there are 52 other options available with this zoning, and the safety net that the community is asking for is with the SMA permit, and there is more than ample opportunity for them to go over there and engage that body. And what I don't want to do is if we tie zoning to a specific project that actually equates to spot zoning, and I don't want this body getting into that lane. Our role here is to approve a time extension that has 52 permitted uses, and let the rest of the Planning Department, the SMA process work; and allow community to engage there. I'm going to be supporting this. And I yield. Thank you. CHR KIERKIEWICZ: Any other comments. Mr. Kaneali`i-Kleinfelder. Page 19 PC -4 February 19, 2019 MR. KANEALI`I-KLEINFELDER: Good Morning. I'm looking through this bill and thank you Sid for being here and for our Planning people in Hilo; and for everything I've heard so far from our Council Members. I'm just reading the first section, Section 2 of this bill, since that's what we're talking about, we've kind of nailed that down, and I'm just going to read it because it's easy. "Within any ordinance for a change of zone, the Council may oppose conditions on the applicants' use of the property subject to the change of zone provided that the Council finds the conditions are one, necessary to prevent circumstances which may be adverse to the public health, safety and welfare; or two, reasonably conceived to fulfill needs directly emanating from the land use proposed," which I think we're talking about—"with respect to protection from the public from the potentially deleterious effects of the proposed use, or fulfillment of the need for public service demands created by the proposed use." And towards the bottom of that same section, Section C, you find, "Failure to fulfill any conditions of the zone change within the specified time notations, or extensions thereto may be grounds for the enactment of ordinance making further zone changes for or rezoning the effected property back to its original zoning, or a more appropriate zoning designation." I guess my question is, are we finding that the conditions are necessary to prevent adverse public health, safety and welfare, or that we are fulfilling needs directly emanating from land use proposed with respect to protection of the public from the potentially deleterious effects of the proposed use? Just by following those guidelines on the first page, is that what we are achieving by voting "yes" and "no" here? Or am I off track? So if I were to look at those things, I guess I have to ask our Planning Department, are we within the General Plan's needs here? And I may have missed because I was reading as we were talking, but are we within the General Plan needs for that land and are we following this basic Section 25-2-44, conditions on change of zone? MR. DARROW: Good Morning, Council Member. I would say that, as we do with any change of zone, we look at the proposed use of the zoning and all that it entails. So in this particular request, even though we tend to look at a proposed use as being a specific project, we look at it from the entire scope of what is allowed under the Industrial zoning. In looking at that, this is consistent with the General Plan which is Industrial. It's consistent with the zoning for this property which is Light Industrial or Limited Industrial. And it has been previously approved, and again, we're looking at a time extension for this particular request. In regards to public health and safety, the conditions that are placed on this particular change of zone and time extension do take care of those particular issues. That's what these conditions are placed therefore, to make sure that they Page 20 PC -4 February 19, 2019 keep everything in line that the project does have protections of public health and safety. Sometimes when—there's an issue right now in regards to the proposed use. Looking at a water bottling facility, people have strong opposition to that. Again, that comes under the Commission on Water Resource Management and their jurisdiction, and that's their responsibility when they look at granting a permit for that particular use. But overall for any industrial use on this property, these conditions should minimize any public health and safety issues associated with it. MR. KANEALI`I-KLEINFELDER: Thank you. I'm just going to go straight back to how we are benefiting public health, safety and welfare by changing the zoning of this property, because I think that's what we're touching on here. I just want to make sure I'm on track there and that we are doing the right thing and that we're following our guidelines. MR. FUKE: Madam Chair, can I respond to that? I think as I mentioned earlier, you know, we operate from a land use standpoint. We operate under a system of laws, and the so-called major land use regulatory law that we have is the County General Plan. So all uses would have to be consistent with the General Plan. So, in this particular situation, the Industrial zoning is consistent with the General Plan. So relative to addressing the public health, safety and welfare; that's kind of like a standard language. Those are addressed, if they haven't been addressed, those would be addressed as conditions of approval. For example, if you're—you know, there's a condition that requires a sewer hookup; there's a condition that requires curb, gutters and sidewalk. They all deal with how this property when developed, you know, whether it's for a bottling plant, a warehouse, a restaurant, how that activity on this particular property addresses the public health, safety issue. Curb, gutter sidewalks, make sure you have enough water, your building is properly sprinklered or has easy access to fire hydrants, those kind of things. Those relate to public health, safety and welfare issues. MR. KANEALI`I-KLEINFELDER: And then again, I thought I heard earlier that we are still developing our General Plan, that we haven't finalized that? MR. FUKE: There is an existing County General Plan that's currently under review right now for a possible update. There was another update done back in the year 2005. You know, the General Plan for this area is Industrial, and it was designated back in 1991. In 2005 when they did the General Plan update, the decision makers then decided that the retention of that designation was appropriate. So as the public and the Planning Commission, and this body go to the next step of General Plan update, you're going to have a chance to weigh in on that particular issue, about whether this area or any other property should retain its existing designation. But, in fairness to the general public, you can't rely on a projection, you have to go on what is. You know, all landowners Page 21 PC -4 February 19, 2019 proceed on the basis of what is, and the property right now from a what is standpoint is designated Industrial on the General Plan. MR. KANEALI`I-KLEINFELDER: And if we were not to make a decision, Section 25-2-44, Subsection (C), and we fail to fulfill the conditions of the zone change, what then would happen? What would it revert to? MR. FUKE: Well, if there's like an infraction of any of these conditions that would be the responsibility of the enforcing agency which is the Planning Department. They would then have to initially, you know, according to their protocol, is to give the landowner or whoever is the developer an opportunity to rectify that violation. And failing that, then issue a violation notice and possibly initiate action to down -zone the property or rezone the property to a more appropriate classification. MR. KANEALI`I-KLEINFELDER: So like, I think it was touched on earlier was if we deferred this and you—are you going to go past your time extension, which would qualify as failing to meet conditions? MR. FUKE: If this application is deferred then, as I mentioned earlier, the property right now, you know, its Industrial zoned, but you can't really use it because it's a zoning in limbo. So, you can't go forward, and you can't even go backwards, but you're still paying an Industrial real property tax rate and that's the irony. MR. KANEALI`I-KLEINFELDER: I guess my question is if it does get deferred and you miss your time extension, and what happens then? Then it's passed, what you're saying, because what it says here we're going to send you back to rezoning, so what? MR. FUKE: No, actually the time within which to do something on the property has already lapsed. MR. KANEALI`I-KLEINFELDER: Okay, that's kind of what I was getting at. MR. FUKE: Correct. It has already lapsed, and so any time extension request pursuant to the ordinance, you know, this body would have to look at it from a standpoint of whether it still meets the General Plan, whether it meets the concurrency requirements. Now, there's like an affordable housing requirement that was not present back in 1990. So you know, it gets kind of ratchet up. So, if you're going to go in for a time extension, there are uniform conditions, and there are additional conditions based upon prevailing policies. MR. KANEALI`I-KLEINFELDER: Okay, I yield. Thank you. Page 22 PC -4 February 19, 2019 CHR KIERKIEWICZ: Ms. Villegas. MS. VILLEGAS: Thank you. So, I just have another question here because I think I'm not alone then, in the confusion coming into this meeting that it would be presented as if there's two separate cases, because listed next to Bill 16, it says that the applicant is Piilani Partners, as it is also stated in the letter from the Mayor. The amendments—throughout this particular case, it's being presented as Piilani Partners, so I guess, I myself have some issues with then being told that it's not Piilani Partners because it's listed right here. MR. FUKE: No, technically any person can be the applicant. I could have been the applicant, but you need to have the consent of the landowner. At the end of the day the most critical entity is the landowner, not the applicant. MS. VILLEGAS: Correct. MR. FUKE: Usually what happens, like to answer Council Woman Eoff's question earlier about, if you have a proposed zoning, like two applications from now you're going to hear this Bank of Hawaii proposal, when you have a proposed zoning, you usually present a prototype of what could go on the property, but not necessarily what will be on the property. And thus, you avoid the issue of contractual zoning by saying only a bank will be allowed, or only a bottling plant will be allowed. It's this whole array of uses within that particular district that would be allowed. And rightfully so, there are conditions that the staff has proposed and the body as you know, Council has adopted where a person might suggest a commercial office use, you know in a CG (General Commercial) zone, and then the commercial office use is suggested to have like a very nominal traffic. Then if you put in like a restaurant or if you have like a day care facility, then the traffic movement begins to change. So, usually in situations like that what the staff has done and the Council has adopted is like an additional condition that if the use changes other than what was originally represented to say that your traffic is going to be relatively nominal then you have to submit an updated traffic report to the County, and they will then determine what additional traffic mitigation may be required. MS. VILLEGAS: Thank you for that. However, I think that somehow I'm not communicating as effectively as I'd like to, because in an issue like this, that's already had so much contention over Piilani Partners and the water bottling, I question the wisdom of the landowner letting the potential developer of the property present and be the applicant. Because from a format of full disclosure, that brings up some trust issues for me to really say, "Oh they are separate and they aren't related and this is very different." I would question the wisdom of the landowners and presenting it that way, because not only for myself but for Page 23 PC -4 February 19, 2019 constituents that becomes confusing. How are we supposed to trust that, yeah, there's 52 other potential uses; however, the potential use that's causing all the controversy in this circumstanceI mean without Piilani Partners being directly involved and implied by, you know, these applications, I don't think there would be such a source of contention for Suisan to extend their permits and rezoning. So, that's just what I would like to voice as feeling kind of silly, but then also feeling kind of relieved that, right there is the big red flag. So, thank you. I yield. CHR KIERKIEWICZ: Any other comments or questions? Ms. Eof£ MS. EOFF: Yes, and I think that takes me back to the very beginning of my line of questioning because even though, as you said, the conditions are generic and would be levied on any industrial use of that property, they are tied to a proposal. In another way, just like the original bill that's being amended here with the strike -outs had referred back to a fish processing operation. And I believe, I didn't find it, but I heard in testimony that there was somewhere in the original ordinance that if fish processing wasn't going to be the use of the land, that the ordinance would be repealed. And we're not repealing it here, we're just offering or asking to support a time extension with change of conditions and with all of that struck out. But I think what Rebecca is raising is very valid, because almost—even though are many, many uses in each zoning category, usually and almost always—I've never really seen a proposal come before us that wasn't tied to a specific project. It's either driving the rezoning or driving the request for a time extension. So, although I'm agreeable that, you know, Suisan probably is correct in applying for a time extension, as time has gone by and that's what they're required to do, I'm also having a hard time, as is most of the people we've heard from in the testimony and some of the Council here, trying to separate the fact that Piilani Partners is the applicant and has proposed a specific project. So, I don't know what to do. I wanted to, I was kind of going earlier on wanting to defer until we've seen what happens with the SMA permit, but I still go back to my own questioning, and Mr. Chung did pretty adequately let me see that more clearly, but time extensions to me are a chance for the Council to see if the zoning is still appropriate in that area, and I looked at the map. That's why I questioned it at first, because all around it there isn't any other Industrial directly right around it, it's either Resort or Residential. I know close by, there's some other commercial uses, but Industrial or Limited Industrial even is what was appropriate when it was originally rezoned. I'm hoping that's still appropriate now because of the request, but I'm really having a hard time with this as far as the issues that are being raised here today. Page 24 PC -4 February 19, 2019 And one thing I know Mr. Richards did say, and I feel this way, that we have some obligation to the landowner and to the expectation, you know, of the zoning that they have, but I also feel we have an obligation to the people that we represent to carefully look at the appropriateness when we do see a time extension come before us. So, I'm still trying to separate the two issues, and I do think that zoning itself is probably still appropriate. I really haven't heard anybody address that issue that much. The problem is that it is tied to an applicant that's got a project that's possibly not appropriate. So, I don't know what we should do here. I feel like we've already talked it out, but just so I've expressed the fact that I'm still conflicted although I understand what Mr. Chung is saying about the surrounding area; and also what I do know about normally approving time extensions. But in this case, because it's tied to a different project it's becoming difficult. CHR KIERKIEWICZ: Thank you, Ms. Eof£ Okay, one more quick comment from Mr. Richards and then it's my turn. MR. RICHARDS: Thank you, Chair. I'll be quick. Just in things that I've been involved with in the past, I can appreciate the concern about having this tied to a certain entity that's trying to move the applicant forward. As Mr. Fuke articulated, anybody could have been the applicant. If you look at it from the landholders' standpoint, they're not going to go forward with doing anything if there's not something that they're trying to strive towards. And so, regardless and I get the concern, like I said, I'm not convinced that a water bottling plant is appropriate here. Frankly for that matter, anywhere, but that's a different conversation. The point though is that it comes down to resources, and in small little businesses, you only have so many resources and you can't do all the paperwork unless there's something coming forward. So, that in itself doesn't concern me. I think, and I agree with Ms. Eoff, that the zoning is appropriate. It's been articulated by a historical knowledge of the area from Chairman Chung that area is an economic growing area. And so from that perspective I'm very comfortable in supporting this going forward. I get the concern about the bottling plant. Don't think I don'tI'm not hearing that loud and clear, but these are separate issues. And I think going forward, there is ample opportunity to appropriately slow that process down if we need to, but this is a separate deal. I yield. I promised to be short. CHR KIERKIEWICZ: Thank you, Mr. Richards. And just for the record, I do want to state that the owner of the property is not Suisan. It's actually Matsuno Enterprises. And I just want to make that very clear because there was an article in the newspaper last year that indicated of the project and the property was Suisan. And that's in fact not the case. So, if you go through your materials, Page 25 PC -4 February 19, 2019 there is a note from Matsuno Enterprises indicating that they are the landowner think that this would be a lot MR. CHUNG: Just one question, Chair. CHR KIERKIEWICZ: Oh, sorry. Yeah. MR. CHUNG: Mr. Fuke, you know this attachment that's provided on the Bill 16. It's the map, the amendment to the zoning code. When was that prepared? MR. FUKE: That was prepared back in 1992 when the property was originally rezoned. MR. CHUNG: 1992, that's what I figured, because when Ms. Eoff started talking about all of the different; you know, the zoned properties in that area, I was thinking, what? What's going on? So, I took a closer look at this thing. And this thing is totally dated. You know, absolutely. Absolutely dated. Yeah, that whole area is now almost, not completely, but by in large, that Manono area with all those small parcels, that's almost all Commercial already. Yeah, yeah, all the way past Hualani and further up. Yeah, it's going to be a Commercial corridor. I was wondering what she looking at, then I looked at this, August 3, 1992. Yeah, okay, I just wanted that clarification. Thank you. CHR KIERKIEWICZ: Thank you, Chair Chung. I think it would be a lot easier for this Council to digest or make a decision on what's being before us if the applicant was Matsuno Enterprises. And say they came before us wanting to sell the property, but they couldn't because the zoning was in limbo. I also think it would be a lot easier for us to swallow if it was a different project, like a food processing facility or a storage center. And personally, I don't see the value of a water bottling facility. No offense to your client, Mr. Fuke, but it just doesn't meet my standards of review which is being triple bottom-line driven. It's not that. But what is before us as a Council is a rezone. We're not here to evaluate the merits of the project, we're here to address the zoning. And I trust that the Windward Planning Commission and the State Water Resource Management Commission will do the right thing, and they will fully investigate public trust doctrine and do what's best for the public. I think a lot of good questions have come before us. Is this zone, Industrial, appropriate for the area? I personally don't want to see a zone situation in limbo, because it will prohibit the landowner, or the potential new landowner from doing anything. And there are a lot of allowable uses that Ms. Lee Loy pointed out to us earlier. And the fact that Light Industrial zoned land is very minimal in Hilo, so we want to make sure that we have that as part of our inventory. Page 26 PC -4 February 19, 2019 So we have some options before us today. We can make a decision on this bill right now, which is focused on a time extension for the rezone; we could hold off on making a decision until Windward Planning Commission has reconsidered what they'd like to do with the application, but I'm not for doing that. I'm not for mixing what they're doing versus what the Council is doing. And I'm also hearing, what is the best use of the land going forward, and that's something we can consider as part of the General Plan update process. We could consider revoking this altogether, and as a Council determine what's appropriate for the area. Just putting everything out on the table for us to consider, but I'd like to move forward with making a decision on what's before us, which is an extension of the rezone. Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: Mr. Fuke. MR. FUKE: Yes, sir. MR. KANEALI`I-KLEINFELDER: Can you answer a question just for my knowledge? What would be some allowed uses of the current zoning as far as commercial property or commercial -type activities? MR. FUKE: Within the Industrial zone? MR. KANEALI`I-KLEINFELDER: No, within the Resort safety zoning that it currently is. CHR KIERKIEWICZ: It's not Resort zoned. MR. KANEALI`I-KLEINFELDER: Oh, it used to be Resort? MR. FUKE: It used to be Resort and now it's zoned Industrial. MR. KANEALI`I-KLEINFELDER: It's zoned Industrial. And we're looking for Light Industrial. MR. FUKE: No, it's still Light Industrial. Just looking for a time extension to be able to develop any uses that's allowed in the Light Industrial zoning. MR. KANEALI`I-KLEINFELDER: What's stopping them from doing that right now? MR. FUKE: The existing language of the ordinance, you know, that zoned the property had a development timetable, and that development timetable has lapsed. MR. KANEALI`I-KLEINFELDER: Lapsed, which brought us to this moment. Page 27 PC -4 February 19, 2019 MR. FUKE: Correct MR. KANEALI`I-KLEINFELDER: Thank you. And so, what can they do with the property right now? MR. FUKE: So, if the time extension were not granted, then basically, you know, he can't use the property for any Industrial uses, because he's never fulfilled the conditions of the zone change. He still would have to pay his Industrial zone tax; real property tax. He could petition to have the property maybe rezoned to another Industrial category, you know, consistent with the General Plan, which is Industrial right now. But, he cannot rezone the land from Industrial to Resort because the General Plan for this area is Industrial, and any zoning change has to be consistent with the General Plan. MR. KANEALI`I-KLEINFELDER: So nowhere? Just for my information, nowhere in our code does it just revert a property back to what it was, in its original state if you pass the extensions or time qualifications? Can anyone answer that for me? MR. FUKE: No, it's has tobecause the zoning, you know, like a rezone—when you rezone a property, it's done by ordinance. So, if you're going to remove that designation, it has to take a separate ordinance to redesignate that land. So, if this goes down, for example, then the landowner or the County Council or the Planning Director on its own could initiate a zoning amendment, but you would have to go through the process, Planning Commission hearing and County Council action. MR. KANEALI`I-KLEINFELDER: Okay, thank you, appreciate that. CHR KIERKIEWICZ: Mr. Kaneali`i-Kleinfelder, we're clear though right? It previously was Resort. There was a General Plan amendment and an ordinance to rezone to what it is now, Industrial. And so what's before us is extension of the Industrial use. Okay. Ms. Villegas MS. VILLEGAS: Hi. Okay, me again. So, I just did a little research on Matsuno Enterprises and according to what I'm finding on their website online, Matsuno Enterprises, Limited, is a privately held company in Hilo, Hawaii and is a single location business, categorized under operators of non-residential buildings. Our records show it was established in 1957 and incorporated in Hawaii. Current estimates show this company has an annual revenue of $430,000 and employs a staff of approximately four. The current president of Matsuno Enterprises is Rex Y. Matsuno. However, looking up—this is the DCCA (Department of Commerce and Consumer Affairs) site. So, the owners are Steven and Ester Ueda, Wesley Wakimoto and Christine Page 28 PC -4 February 19, 2019 Matsuno. These are also the same owners listed under the Suisan Company. However Suisan has two additional owners, Ruth Hashisaka and Kurt Alicumben. So, I just want to state for the public record, it may not be owned under the same business name as Suisan, but these are the same owners. Correct? MR. FUKE: Yes, you are correct. MS. VILLAGAS: Thank you, I yield. CHR KIERKIEWICZ: Thank you. And I just want to note that Mr. Rex Matsuno did pass away, and the reason why I wanted to state for the record that it was not Suisan was because when people think Suisan, they think the fish market, and they think the food distribution business and that is not the owner of the property. Still same players, yes, but not the same entity. Okay. Any other questions from Council Members? If not, are we ready to move forward with a vote? Okay, seeing that we have exhausted our robust discussion, Mr. Clerk, could we do a roll call vote for this please? Vote on Bill 16: The motion to recommend passage of Bill 16 on first (Approved) reading was passed by the following voice vote. Ayes: Committee Members Chung, David, Eoff, Kaneali`i Kleinfelder, Lee Loy, Richards, and Chair Kierkiewicz — 7. Noes: Committee Members Poindexter and Villegas — 2. Absent: None. Excused: None. CHR KIERKIEWICZ: Shall we take a five-minute recess and then we will get back to the rest of the Order of the Day for Planning. Thank you. Recess: At 12:10 p.m., the Chair called for a recess. Reconvene: The meeting reconvened at 12:20 p.m. CHR KIERKIEWICZ: Mr. Clerk, if you could please read in Bill 23. Page 29 PC -4 February 19, 2019 Bill 23: AMENDS: (1) ORDINANCE NO. 09-049, WHICH AMENDED ORDINANCE NO. 95-118, WHICH AMENDED ORDINANCE NO. 92-036, WHICH RECLASSIFIED LANDS FROM UNPLANNED (U) AND DOUBLE -FAMILY RESIDENTIAL — 3,750 SQUARE FEET (RD -3.75) TO MULTIPLE FAMILY RESIDENTIAL — 2,500 SQUARE FEET (RM -2.5) AND VILLAGE COMMERCIAL 7,500 SQUARE FEET (CV -7.5), RESPECTIVELY, AT HIENALOLI 4TH AND 5TH, NORTH KONA, HAWAII, TAX MAP KEY: 7-5- 010: PORTION OF 013 (FORMERLY 7-5-023:063); AND (2) ORDINANCE NO. 09-050, WHICH AMENDED ORDINANCE NO. 06-138, WHICH AMENDED ORDINANCE NO. 90-010, WHICH AMENDED ORDINANCE NO. 86-049, WHICH RECLASSIFIED LANDS FROM MULTIPLE FAMILY RESIDENTIAL — 2,000 SQUARE FEET (RM -2) TO VILLAGE COMMERCIAL — 7,500 SQUARE FEET (CV -7.5) AT HIENALOLI 5TH AND 6TH, NORTH KONA, HAWAII, TAX MAP KEY: 7-5-010: PORTION OF 013 (FORMERLY 7-5-023:064 AND 067) (Applicant: T & M Properties, LLC (formerly Samson, LLC) (Area: approx. 6.467 Acres) The Leeward Planning Commission forwards its favorable recommendation to this amendment to change of zone Ordinances 09-49 and 09-50, to consolidate these ordinances with one ordinance with a single set of conditions of approval. The applicant is requesting a five-year time extension to Condition C (Complete Construction), and to amend Conditions D (Dedicate Road Widening Strip), and N (Fair Share Contribution). This amendment would allow the applicant to develop a 104 -unit senior independent living community. The property is located along the north and east side of Hualalai Road, northwest of the Aloha Kona Subdivision. Reference: Comm. 92 Intr. by: Ms. Kierkiewicz (B/R) Motion to Approve: Ms. Eoff moved to recommend passage of Bill 23 on first reading. Seconded by Ms. Poindexter. CHR KIERKIEWICZ: And I see that the representative for the applicant is already sitting at the table. Mr. Fuke, if you could just give us an overview, please. MR. FUKE: Chair, it's now good afternoon. CHR KIERKIEWICZ: Yes. MR. FUKE: So, like the other application, this is like a time extension request and the ordinance already expired. The original developer, you know, had proposed a 149 -unit condominium project. The current owner has decided to kind of like, scale it back to 104 apartment units. Now, the current owner wants to really do like an independent senior housing project. You know, taking Page 30 PC -4 February 19, 2019 advantage, in proximity the adjoining Regency project, but does not necessarily want to limit himself, you know, to that particular option. The Planning Commission had favorably recommended the time extension, and during the course of the time extension, you know, deliberation, the issue is about whether the commission could require that the project to be limited to a senior independent living housing. So, at that time, the planning staff including the Planning Director, you know, suggested that would be a form of contract zoning and they would not recommend doing that. However, knowing that ultimately the decision maker rests with this body and not with the Planning Commission, the commission on its own said, "Well, why don't we put that as a condition and let the County Council make that determination." And this is all, kind of like, reflected in the hearing transcript. I have a copy over here, you know, from Page 19, and it talks about that. So, we're here right now, you know, requesting not only the time extension, but to have proposed Condition B deleted, you know, which eliminates the mandatory requirement that it be an independent living facility. The reason being that, based on the zoning, the kind of uses you would have is some sort of like a residential use. It's not like the previous application where you have an Industrial or a Commercial type of use where you can have a whole array of uses. Pretty much this property is going to be set aside for some sort of Industrial use. Now, if you just limit only to senior independent living, and for some reason the developer can't do it, can't find the appropriate market for it, then the property would sit idle. Alternatively, if it's kind of like wide open in terms of any form of multiple -family use. You know, conventional apartment; conventional condo, whatever have you. Then you address an overall housing market, because there is a stipulation that 20 percent of the units that you provide would have to be set aside for affordable housing. So, that is one good way to address your affordable housing requirement. And, you know, for those reasons Madam Chair, we respectfully request that Condition B be deleted and that the subsequent conditions all be re -lettered accordingly. CHR KIERKIEWICZ: Thank you, Mr. Fuke. Any questions or comments from my colleagues? Ms. Eoff. MS. EOFF: Thank you. Thank you, Mr. Fuke. So, this is similar in a way, the time extension part, because the zoning is still appropriate for that area. If I'm not mistaken, it's consistent with the goals and objectives. MR. FUKE: That is correct. So, any time extension request will have to be reviewed again, as if you're starting from scratch. So, you look at the General Page 31 PC -4 February 19, 2019 Plan; is it consistent with the General Plan? You look at the Kona Community Development Plan; is it consistent with the Kona CDP? You look at the concurrency provision relative to roadway and water system. And, you know, if it fulfills those requirements? And, so, it's almost like a brand new application, you know, when you go through the extension process. Those are the criteria you would have to look at. And if any of those—for example, if the CDP does not endorse residential uses in this area, then of course that would be the basis for the denial for the extension. MS. EOFF: Right, but I see that it's still consistent with the goals and policies of the Kona CDP. MR. FUKE: That's correct. MS. EOFF: I guess though, my question about thisI read the discussion from the planning commissioners about the senior living facility being the most desirable use. And I believe that the applicant has even suggested that they would like to build such a project. So, I would like to know why we can't leave that condition in, also because I believe that maybe that the traffic impact analysis was based on if that was being proposed or suggested. Because, that wouldn't generate as much traffic, as say some other type of residential housing. So, I think to be consistent with concerns over traffic, that maybe it's a good idea to leave that condition in. MR. FUKE: Well, like two reasons why. One, is as I mentioned earlier, actually three reasons why. One, as I mentioned earlier, it's like a form of contract zoning and the question of legality comes into play. You know, whether you can restrict the property to a particular use and not have the property be the beneficiary of an array of uses allowed under the RM (Multi -Family Residential) zone. So, that's one point. The second point is like, if that's the restriction and for some reason the developer, you know, does not find it appropriate to do an independent senior housing project, but if there's a market for a conventional apartment type of project, then you score in two ways. One is that you increase the overall inventory; and two, is that you have to address the affordable housing requirement, which is a condition. So, I think like, that's the benefit. Leaving that condition, and if it can't be developed then you forfeit the opportunity to add to the overall housing inventory slot over here. MS. EOFF: Well, the traffic impact analysis, was that MR. FUKE: I was going to get to that, yeah, okay. So, the traffic impact study shows like, anytime there is a potential to generate more than 50 units during the Page 32 PC -4 February 19, 2019 a.m. or p.m. peak. And in this situation here, since the proposal called for like 102, whether it was independent or non -independent type of a project. You know, it triggered the traffic impact study. And the traffic impact study essentially concluded, that you know, the study is designed what kind of off-site mitigation is required, and in this situation here, the traffic study concluded that the off-site mitigation is—you need to have a dedicated left turn lane into the property; you need to set aside and dedicate a right-of-way fronting the property, putting curb, gutters, and sidewalks. The alignment has to align with the properties on the south side of Hualalai Road, so that they'll be kind of like, you know, facing each other. So, those are all of the mitigations. That's the intent of a traffic study. It's not designed to tell you no or yes, but it's designed to say if there are going to be impacts, then these are the way that's best to mitigate those impacts. MS. EOFF: Do you mind if I just ask the Planning staff a question? Thank you, Mr. Darrow. I'm not too sure who put the condition in to this ordinance regarding the limiting the project. Well, it says that the proposed project should remain in concept an independent senior living facility. I know it's here because the Planning Commission based that sentiment on why they voted to support this application. So I'm not sure. You know, Mr. Fuke's saying we should take it out. I don't know if we can leave it in; if we should take it out. I don't know if there's anything wrong with leaving it in, especially because the applicant hasI met with the applicant and they do want to do a senior living facility. And anyways, could you explain to me some of the process for that condition being put in? (Note: At this time, Planning Program Manager Jeff Darrow came forward to address the members of the Committee.) MR. DARROW: Sure, this is Jeff again with the Planning Department. To answer your question, Council Member Eoff, as mentioned by Mr. Fuke, this condition was proposed by the Leeward Planning Commission to be added in. Normally, in the case of time extensions or change of zones, we don't, or the commission, the director, the commission and the Council normally don't restrict uses to a particular zoning. It's almost like a conditional -use permit type of action, where you're just limiting the use of the property to a particular use, and that's not the intent of zoning. The intent of zoning is to allow a number of uses for that particular area. So when we do look at these change of zone requests we look at it in the sense of highest and best use. What could this be overall? What's the highest and best use of the particular use? In this particular case, the applicant was proposing an independent senior living facility, and the commission felt like they wanted to hold that to the applicant. And normally, the applicant is proposing something they want to do; but again, as with circumstances that we've seen just in the last case, sometimes economics or circumstances prevent a particular applicant or a particular project, and therefore, they look at the other potential uses on the property. Page 33 PC -4 February 19, 2019 If they limit it to this particular use, then for the applicant to be able to do any other type of use within that zoning, they would have to come back to commission and Council and have that changed or removed again. MS. EOFF: So, kind of towards the end of, I think it's on page seven of the conditions of approval, it says that, "The time extension granted shall be for a period not to exceed the period originally granted for performance, i.e. a condition to be performed within one year may be extended for up to one additional year." What is this time extension? How many years? MR. FUKE: It's for five MR. DARROW: This would be under Condition D. MR. FUKE: D as in delta. It says, "Construction of the proposed development shall be completed within five years from the effective date of this ordinance." MS. EOFF: So, in other words, if the applicant is proposing to build a senior living facility and then five years go by and that isn't what happens or they don't get started, then they would possibly come back to MR. FUKE: Well, if they don't finish in five years based on this, then you won't see me here, but somebody will have to come in ask for a time extension. MS. EOFF: And at that time, they could delete that condition that it was proposed for a senior living facility, if that isn't what wasI mean I feel like MR. FUKE: At that time, but I think that, you know, the owner/developer right now has someone waiting in the wings ready to, you know, pull the trigger on developing this site and it may not necessarily be a senior independent living facility. But as I was explaining earlier, there are benefits behind that because you increase the overall housing stock plus you have a devotion of 20 percent being dedicated to affordable housing. MS. EOFF: And that's if the condition comes out, you're saying? MR. FUKE: Yes, if that condition is left in and for some reason the potential developer cannot find it financially feasible to do such a project, then the property will stay, you know, vacant and undeveloped. And five years from now, probably will have to come before you again. MS. EOFF: And if they develop the senior independent living units, is there a Page 34 PC -4 February 19, 2019 MR. FUKE: You know, if I can put it this way. You know, like, Brian Cook sitting in the back. He's like all of us, we will probably be eligible for such a facility unit, you know, some sooner than later. But, I think, you know, that's kind of like the desire. MS. EOFF: Yeah, me too. MR. FUKE: That's the desire, but whether, in fact, it can materialize, a lot has to do with the financial stability of such a project. And so all I'm suggesting and pleading to this body is that please delete it, because if you delete it then you have a potential for increasing your overall housing stock. It could be developed into a senior independent living facility, then again, it may not. But if it does not, then rest assured that you'll have more affordable housing on the market. You know, through that 20 percent of affordable housing. MS. EOFF: Okay, I guess I yield at this point, but I'm having a little bit of an issue just because the transcript came out of the Planning Commission that they were approving it because that what was being represented and the applicant agreed to it. And so, we see it here as a condition. So I MR. FUKE: No, we didn't agree to that. MS. EOFF: Oh, you didn't? MR. FUKE: No, no. And so, I think during the course of the discussion it was more the Planning Department saying that, you know, it's a form of contract zoning and I think there's a provision, statement by Director Yee. You know, he specifically says, "No I prefer that you drop it." "It" being that recommendation of having it restricted to independent living. MS. EOFF: Then, why is it in here? MR. FUKE: It was the Planning Commission basically saying, "You know, we don't have the authority on this one." You know, like SMA's. Basically, "It's up to the County Council so, let the Council decide." Notwithstanding, you know, the potential illegality of such a condition. So, now it makes my job a little harder, because I have to plead to have that deleted. MS. EOFF: I see, but when the applicant did come forward, and when I met with them, they spoke of this as being the preferred project. MR. FUKE: That's absolutely correct. MS. EOFF: Okay, well I'll yield at this point, but thanks so much. Page 35 PC -4 February 19, 2019 CHR KIERKIEWICZ: Thank you, Ms. Eof£ Any of my other colleagues. Questions, comments? Ms. David. MS. DAVID: Thank you. And following along with Ms. Eoffs concerns are, Condition B says "The proposed project should remain." And I don't think it says "shall" remain. So for me, it should remain in concept as an independent senior living facility. So to me, if something changes along the way, it doesn't say that it has to, so for me I don't see any reason why should be taken out. I mean, no harm in leaving it in. That's my input. Mahalo. MR. FUKE: So, Council Member David, you're saying that as it is right now, there is flexibility in the language to have a non -senior independent living facility. MS. DAVID: I'm saying the word says, "Should remain." You know, "shall" is shall, that means you have to. "Should" might mean that you have some flexibility, is what I'm MR. FUKE: So, can I just follow up with that? MS. DAVID: You sure can. MR. FUKE: So if that's the case, who defines, "should?" Would that definition have to be made by this body or does the Planning Director have the discretion to make the determination? MS. DAVID: I think that's a Corp. Counsel question. Ms. Self, Good morning. (Note: At this time, Deputy Corporation Counsel Amy Self came forward to address the members of the Committee.) MS. SELF: Hi, Deputy Corporation Counsel, Amy Self. This is not a good way to state a condition of zoning. Simply because what's going to happen is, the Planning Director, whoever it may be at the time, is going to look at this, and the Planning Director is not going to know what this means either. So, it's probably going to come back to you again. Let me explain one thing, zoning is what tells you what you can do with your property. Okay, if you look at each of the zoning districts in the zoning code, you have a list of permitted uses. So, no matter what your zoning is, whatever the permitted uses that are listed for that particular zoning district, that's what you can do with your property. So that's why it shouldn't be tied to something so specific. You can put a time limit on construction, but it shouldn't be for a specific project, because the reason someone comes in for a zone change is so that they can have a different use of their property. So, I just wanted to spell that out because there seemed to be some confusion under the previous agenda item. Page 36 PC -4 February 19, 2019 MS. DAVID: Thank you, Ms. Self And although the Planning Commission recommended that this condition be put in, you're saying that it's more, well someone down the road is going to have to make a determination about this. If we don't make it now, it's going to have to be made later on. MS. SELF: Correct. MS. DAVID: Because it's specific, right? MS. SELF: Right. And you've got to remember, they only make a recommendation. It's the County Council that controls zoning and the amendments, or the conditions that are applied to zoning; to rezoning. So, this kind of condition that goes in, I know we had one before that was—we've been having problems with some of the conditions of the rezone ordinances, and although it comes up from the Planning Commission, it doesn't mean that it's not going to cause confusion. So, as the final decision maker, it's up to the County Council to make sure that these conditions are clear so that, you know, if there's a different administration, they're going to be able to read these conditions and know whether somebody's in compliance or not. That's where it really gets confusing is when, you know, you change administrations and then somebody who wasn't involved before goes through and looks at the—and even the employees of the Planning Department. We just recently had a huge number of employees retire, so now we've got a whole lot of new employees. They read these conditions, it's their job to determine whether or not they're in compliance with these conditions. So, that's why it's really critical to make sure that you have language in the conditions that, you know, is not ambiguous or that is understandable just from reading it. That's what I would suggest. MS. DAVID: I see, yeah, because the way you read this, it's like it almost seems that they have to or the suggestion is the senior facility when, as you say, under the zoning, they have a variety of choices of what they can do. MS. SELF: Right. MS. DAVID: Okay, based on that information then, was there a proposal to remove this then, or is someone? No, not yet? Okay. Well, I'll wait till I hear from the rest of my colleagues, but I just wanted—thank you for clearing that up because it really does mean—it causes more confusion in my mind right now. So, Mahalo, I yield. CHR KIERKIEWICZ: Thank you, Ms. David. Ms. Lee Loy. Page 37 PC -4 February 19, 2019 MS. LEE LOY: Thank you. And I really don't have a question for Mr. Fuke, but what I'm sensing is a lot of confusion and an opportunity that we have to actually clarify the language. I think we have Mr. Fuke's recommendation on the record, and I'm actually looking at my two Kona Council Members, because I believe this is, you know, their district. Like we did with Ka`upulehu, I'll be more than happy to help champion, you know, a second draft. Kind of, inserting clarity into the various conditions of approval that actually not only helps this body move it forward, but the Planning Department, as they evaluate the conditions of approval as a particular applicant or any future applicant or landowner has to satisfy these conditions of approval. think that's what we want to do, and I actually think it helps. I think it helps for economic development, because we manage that expectation of the applicant. That they know what they're getting into; they know the finance, cost associated with the potential uses. So, Ms. Eoff or Ms. David, you know, I'll be more than happy to help champion any further revisions. I support moving this project forward, but it sounds like clarity is needed. MS. DAVID: I think its Ms. Eoff s district, and she borders on Ms. Villegas's, but it's Ms. Eoff s district. So, I'll defer to Ms. Eoff. CHR KIERKIEWICZ: Ms. Villegas. MS. VILLEGAS: I just have a quick question, being the rookie, freshman. One of a couple of us are here today. Just for protocol in the future, is it more appropriate for Karen to—this being in her district. For her to then work with them to make any changes to the language? Is it protocol in any capacity that the person who represents the district that the property resides in be the person that work on a potential solution or change of working or whatnot? CHR KIERKIEWICZ: I'll go ahead and answer. You know, thinking back on Bill 1, Ka`upulehu Developments, Ms. Lee Loy has worked closely with folks on that team, and so she took it upon herself to volunteer to make the amendments to that bill. I think it's good practice if we work with the representatives where the project is located to make those amendments. And so, if it is something that would consider doing, Mr. Eoff, we can work with you to amend Bill 23 to remove the Condition B, and move it forward in that way before Council. Similar to how we did with Bill 1, where there was a change to the bill and we voted on an amended version of the bill at first reading. MS. EOFF: Could I ask Ms. Lee Loy a question? CHR KIERKIEWICZ: Yes, go ahead. Page 38 PC -4 February 19, 2019 MS EOFF: Was that your intention, just to remove that language or to further explain the language? MS. LEE LOY: I think we have an opportunity for it all. I mean, we have Mr. Fuke's recommendation on the record, and just like we did with Ka`upulehu. You know, I actually shot it back to Corporation Counsel, so there was another opportunity to insure that the language provided the clarity that the Planning Department needed. You know, and MS. EOFF: I think it's a good idea, and we would have a chance to talk to the applicant. I'd be willing to look at that, and I know two of us can work together, so we can work with Corp. Counsel and the applicant. So, yes. MS. LEE LOY: I stand ready. CHR KIERKIEWICZ: Excellent, thank you both. Any other questions, comments for Mr. Fuke? MR. FUKE: So, yes, just one comment or one question, I guess, of Ms. Eof£ Are you suggesting that you would want to see a language that sort of like encourages the developer to consider a senior independent living, something along those lines? And that the Council will be a happy camper if it turns out to be as such? Something along those lines? MS. EOFF: Something like that, because I believe that senior living facilities are something that we really need to look at seriously, whether their independent or assisted. But, in this district, I think that's a big need. So, I was happy about this proposal, but I'm concerned to just remove the amendments. But, I don't want to do something that causes future Planning Directors' you know, hardship to figure out what it meant or to be unclear. So, I'm interested in looking how we could improve on this. CHR KIERKIEWICZ: Thank you, Ms. Eof£ Mr. Fuke, so would your clients be amenable to revising this bill to include that language that encourages development of a senior living facility? MR. FUKE: Could I CHR KIERKIEWICZ: Sure. For the record, Mr. Fuke is consulting with a representative of the applicant. MR. FUKE: Thank you very much, Madam Chair. I was talking offline with Mr. Brian Cook who is the applicant's representative, and he confirmed that having such a language would be acceptable. So if, you know, with the Chair's indulgence, if this matter can be forwarded to the Council for action, and then at Page 39 PC -4 February 19, 2019 that time, for first reading, prior to the first reading, then we'll probably come up with language which can probably address their concern. Maybe work it out with Ms. Eoff and Ms. Lee Loy. CHR KIERKIEWICZ: Okay, I am absolutely willing to entertain that. You know, I just want to say that we as legislators have a responsibility to make good policy and that words matter, so everywhere possible, it's important to be very clear, because these bills do transcend different administrations and are up for interpretation. So, if there are no other remarks from my colleagues, I'm going to move for a vote to move Bill 23 to the Council with a positive recommendation for first reading, and it will include amendments that are being worked on by Council Members Eoff and Lee Loy. Vote on Bill 23: The motion to recommend passage of Bill 23 on first (Approved) reading was carried by the following voice vote: Ayes: Committee Members Chung, David, Eoff, Kaneali`i-Kleinfelder, Lee Loy, Poindexter, Richards, Villegas, and Chair Kierkiewicz — 9. Noes: None. Absent: None. Excused: None. CHR KIERKIEWICZ: Mr. Fuke, don't go anywhere. We're almost there. Mr. Clerk, if you please read in Bill 24. Bill 24: AMENDS SECTION 25-8-33 (CITY OF HILO ZONE MAP), ARTICLE 8, CHAPTER 25 (ZONING) OF THE HAWAII COUNTY CODE 1983 (2016 EDITION, AS AMENDED), BY CHANGING THE DISTRICT CLASSIFICATION FROM SINGLE FAMILY RESIDENTIAL — 10,000 SQUARE FEET (RS -10) TO GENERAL COMMERCIAL — 20,000 SQUARE FEET (CG -20) AT WAIAKEA HOUSE LOTS 2"D SERIES, WAIAKEA, SOUTH HILO, HAWAII, COVERED BY TAX MAP KEY: 2-2-024:003 (ADDlicant: Bank of Hawai`i) (Area: 40.282 Sauare Feet) The Windward Planning Commission forwards its favorable recommendation for this change of zone, which would allow the applicant to develop a new, single - story, 7,500 square foot office building to house banking functions, to include a drive-through ATM and a 36 -stall parking lot to accommodate customers and employees. The property is located at 1339 Kino`ole Street, at the northeast corner of its intersection with West Lanikaula Street. Reference: Comm. 94 Intr. by: Ms. Kierkiewicz (B/R) Page 40 PC -4 February 19, 2019 Motion to Approve: Ms. Lee Loy moved to recommend passage of Bill 24 on first reading. Seconded by Mr. Richards. CHR KIERKIEWICZ: Mr. Fuke. MR. FUKE: Okay, I'll be very brief. This project is for Bank of Hawaii that wants to relocate to this site over here. All of the conditions are, you know, standard conditions. They deal with whether the property is going to be developed into a bank, or a drive-in, or a commercial office, or even a Multiple -Family Residential project. So, if you look at the proposed conditions, this is kind of like reflecting all of the discussions that we've had on those two other applications. If you look at proposed Condition O for example, it talks about like how the fair share contribution, you know, relates to when you do a single-family or multiple - family type of project. So, because the requested zoning allows for multiple - family dwellings to be constructed, in the event the bank elects not to do a bank, and instead sells it to someone who wants to do a multiple -family, a residential project, then they will be obligated to do this. So, that's how, like when staff had drafted the condition, the conditions are generic. It applies to all types of uses that can go in that area. Now, speaking about conditions, there's one condition we'd like to recommend be amended, and that's Condition B. And just to share some of the background with this body. During the course of the public hearing before the Planning Commission, there was a member of the public who, you know, as an adjoining property owner, had raised a comment or a concern about, like wanting to have some sort of wall or a barrier between his property that he's going to be selling; between his property and the bank's property. And so, the original proposal was to have like a six-foot high wall, and then I kind of pointed out that if you have a six-foot high wall on the adjoining property, then it's considered to be a structure. And if it considered to be a structure then you have to have a ten -foot setback, and so that's the reason why five -foot -nine came in, you know, came into play. So this, obviously there's the need for a building permit, and now you can build right at the property line. And so, the adjoining property owner wanted to have a stone wall, you know, because largely for beautifying his property. And the applicant had no objection. However, when they went back, the bank tried to figure out like, okay, how do we construct this five -foot -nine rock wall? And to do that safely, your base has to be really wide. And so, they're suggesting that can we have that amended to be something comparable to like the County Building in Hilo, where you have like, it's Page 41 PC -4 February 19, 2019 rock -faced. You know, if you look at it, you know, it's all lava rock, but it's not entirely made out of rocks. It's like masonry, and there's kind of a face. So, all we're suggesting is, give the developer or the bank the opportunity to construct this stone -faced concrete masonry wall. So, but accomplish the same thing, but use less land. So, we'd like to propose that you insert on Condition B, you delete the term "stone" and you insert the term, "stone -faced, concrete masonry wall." And you know, and following through with the ballast. CHR KIERKIEWICZ: Thank you, Mr. Fuke. Just wanted to clarify, Aaron is this your district? I don't know what --okay, good. Just, in the event we need to work on amendments to Condition B. Just want to know who to assign it to. Excellent. Any questions for Mr. Fuke? Mr. Kaneali`i-Kleinfelder. MR. KANEALI`I-KLEINFELDER: If you did change the wall, would you have to talk to the person who wanted the wall, regarding changing the structure of it? Or do they care whether or not you change it to a MR. FUKE: Well you know, like the comment that was made was more visual aesthetics, so it would accomplish the same thing. It's just a question of the type of construction. MR. KANEALI`I-KLEINFELDER: Just like anything. I think it's good to get everyone involved since you're changing what the person who wanted it there, originally wanted, before we changed it for them to come back to us and say, "We didn't like it." Put it all in writing, and I guess that would be on Aaron or Chair Chung to find out? I'm just making sure that we get it all in writing before we change it here, yeah? MR. FUKE: Okay, so if that's' the case, what I could do is I could kind of reach out that person and have his comment up, down or whatever, and I'll provide it to the Council before you make a decision on first reading. MR. KANEALI`I-KLEINFELDER: That would be good. Thank you Sid. CHR KIERKIEWICZ: But to be clear, a wall is still being constructed. MR. FUKE: Correct. CHR KIERKIEWICZ: The inners of that wall are changing okay, but it's still a wall. MR. FUKE: Yes. CHR KIERKIEWICZ: Okay, thank you, just wanted to be clear. Ms. David. Page 42 PC -4 February 19, 2019 MS. DAVID: Thank you, Chair. And while we're discussing walls, so on the adjoining landowner's wall, since Mr. Kaneali`i-Kleinfelder has brought up a concern, which makes sense. So, I assume that this is going to be double -sided or two-faced, right. MR. FUKE: Yes. MS. DAVID: So the bank's property is not going to just have a junk wall. MR. FUKE: A masonry, no it will be on both sides' faces. MS. DAVID: Yeah, okay, so it'll be two-sided. Perfect. Thank you. CHR KIERKIEWICZ: Any other questions or comments? Okay, let me see if I have this right. Mr. Fuke is going to communicate to the neighbor of this property, changes to this bill. Chair Chung is going to work on amendments to Condition B. Any other changes or comments? If not, let's take a vote on moving this forward to the Council with a positive recommendation; and the version that we will be reviewing at first reading will be reflective of the changes Chair Chung is putting forth. All in favor, please say "aye." Vote on Bill 24: The motion to recommend passage of Bill 24 on first (Approved) reading was carried by the following voice vote: Ayes: Committee Members Chung, David, Eoff, Kaneali`i-Kleinfelder, Lee Loy, Poindexter, Richards, Villegas, and Chair Kierkiewicz — 9. Noes: None. Absent: None. Excused: None. Page 43 PC-4 February 19,2019 ADJOURN- There being no further business, at 12:59 p.m., Ms. Lee Loy moved to adjourn MENT: the meeting. Seconded by Mr. Richards and carried by the following voice vote: Ayes: Committee Members Chung, David, Eoff, Kaneali`i-Kleinfelder, Lee Loy, Poindexter, Richards, Villegas, and Chair Kierkiewicz—9. Noes: None. Absent: None. Excused: None. Approved ., 5/1 2-Aet Ashley Kierkiewicz, Chair ( ate) Planning Committee AK/dt Page 44