Loading...
HomeMy WebLinkAbout2019-08-01 Hearing Transcript - Kinesis HI Inc USE 42WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT AUGUST 1, 2019 A regularly advertised hearing on the application of KINESIS HAWAII, INC. (FORMERLY NICHOLAS AND CAROL MYRIANTHIS) (AMEND USE PERMIT NO. 42) was called to order at 9:03 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Joseph Clarkson presiding. COMMISSIONERS PRESENT: Dean Au, Joseph Clarkson, Donn Dela Cruz, John Replogle. ABSENT & EXCUSED: Gilbert Aguinaldo, Thomas Raffipiy. ALSO PRESENT: Michael Yee (Planning Director), Malia Hall (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), Christian Kay (Planner), Alex Roy (Planner), Jessica Andrews (Planner), and Sarah Hata-Finley (Commission Secretary). And 4 members from the public in attendance. APPLICANT: KINESIS HAWAII, INC. (FORMERLY NICHOLAS AND CAROL MYRIANTHIS) (AMEND USE PERMIT NO. 42) Application for an amendment to Condition No. 4 (Number of Employees) of Use Permit No. 42 and to allow construction of approximately 860 square feet of additional treatment area and an office space. Use Permit No. 42 was approved to allow a physical therapist's office (medical facility) within a portion of an existing single-family dwelling situated within the County's Single -Family Residential (RS -7.5) zoning district. The property is located on the west side of Puuhina Street, approximately 200 feet south of its intersection with Waianuenue Avenue, Piihonua, South Hilo, Hawaii, TMK: (3) 2-3-025:025. CLARKSON: So, with that, we will start with the first application which is for an amendment to a Use Permit by Kinesis Hawaii, and at this time, I'd like to ask Christian Kay to make the presentation of the, on this permit application amendment. KAY: Yes, good morning. Thank you, Mr. Chair, Members of the Windward Planning Commission. Happy August to you. If I can turn your attention to the screen, as the Chair stated, this is an amendment to Use Permit No. 42 for Kinesis Hawaii, Inc. The subject 13,249 -square foot parcel is situated in the South Hilo District of Hawaii Island in the Piihonua area. For reference, we've got Waianuenue Avenue running through the screen here left to right, and Kaumana Drive running through north to south. So, Pu`u Hina Street is where the subject parcel is, and just for other reference, we've got Rainbow Falls over here, and if you're familiar with the 7-11 on Kaumana Drive, that's right here. EXHIBIT A Just some brief history on the permit. In 1986, the Planning Commission granted Use Permit No. 42 to approve the use of a physical therapist office in a portion of an existing single-family dwelling. Shortly after it was granted, the applicant at the time received Final Plan Approval and got a change of use permit at the Department of Public Works to change the entire structure from a single-family dwelling to a medical clinic use. In 1998, it was amended to change the type of medical professionals who could work at the facility, and at the time, it was requested that the entire building be used for a medical facility. So, the Applicant is requesting to amend Condition No. 4 of Use Permit 42 which currently reads, "The number of employees for this facility shall be limited to two full time doctors/therapists and three clerical employees." The Applicant is requesting to amend this condition to allow one additional therapist/doctor for a total of three full-time therapists or doctors, and to increase the number of clerical employees from three to six. The Applicant is also requesting to expand the medical facility by constructing an approximately 860 -square foot single -story addition to the westerly back side of the existing building, which would include three additional treatment rooms, an office, and a hallway. The Applicant is also proposing to increase the number of on-site parking stalls from 10 to 14 to accommodate the increase in patients and staff. The Applicant intends to retain the second story of the building and basement for residential uses. Upon completion of the expansion, the medical office would occupy about 2,693 square feet, and the residential uses would occupy about 2,784 square feet. The stated reasons for a request is despite an increased demand for physical therapy and medical services in the area, the clinic can only currently accommodate one medical practitioner working at a time due to the HIPAA Act of 1996 privacy laws which require that patients be attended to in private sound insulated rooms so the doctor -patient conversations cannot be overhead. These HIPAA requirements were not in place back in 1986 when the practice was first opened. At the time, there were three treatment cubicles in the main room that were separated by movable room dividers which did not provide any consultation privacy. The facility has since been upgraded to include three such private treatment rooms, and the requested building addition would also for three additional private treatment rooms which would help facilitate the expansion of the practice to meet service demand. And, finally, to accommodate a smooth patient flow, one medical practitioner requires two clerical staff. Therefore, the requested increase in clerical employees are necessary to accommodate the total number of medical practitioners including the additional therapist/doctor in this request. The County zoning for the subject parcel and much of the surrounding area is Single -Family Residential — 7,500 square feet as indicated in the yellow color. Again, the other zonings we see on this are Neighborhood Commercial to be consistent with the 7-11, and then some Single - Family Residential — 10,000 square feet. The State Land Use designation for the subject parcel and surrounding area is Urban, and the General Plan Land Use Pattern Allocation Guide Map designation for the subject parcel and much of the surrounding area is Medium Density Urban. EXHIBIT A 2 Here are some aerial photographs of the subject parcel. Again, we've got Waianuenue running at the top of the screen and Kaumana Drive running at the bottom of the screen, the subject parcel situated in the middle of Pu`u Hina Street on the mauka side. You can see the structure as well as the parking area. On the right-hand side is zoomed in a little bit, a different perspective. The main portion of the structure is on the first floor, and there's a basement, but then there is a second floor here on the right-hand side. The proposed location of the addition is on the back side of the existing structure, and only a small portion is viewable from Pu`u Hina Street. So, access to the subject parcel, it ingresses here. And, egress comes out here. This is a private driveway/roadway, and the subject the Applicant has legal access rights over that via easement. Here is the Applicant's site plan. Again, showing Pu`u Hina Street here at the bottom of the screen with the ingress here. The existing structure is in this wider thatched indication, and the addition is going to be here, again, on the back side. The Applicant is proposing, again, increased number of parking stalls two up here to the right-hand side of the structure. One here along this boundary line, and then an additional final parking space here toward the back. There is a gate here, an openable gate, that they'll be able to access through there. Here is the floor plan for the main floor. Again, these are the existing layout of the structure and then the proposed addition is going to be here. The office and three treatment rooms and a hallway, the second -story floor plan is just showing residential bedroom uses, and then this is the basement floor plan again showing residential storage uses for the most part. Here are some elevations that are showing what it is going to look like once the addition is built. Again, this is a front view of the building from Pu`u Hina Street. Because the addition is going to be built on the back side of the building, the only real addition you're going to be able to see is up here in the corner. On the side view here along that private road, you should see the existing entryway, the existing ADA ramp, and you'll be able to see a small portion of the addition here on the back. And these are views from the back side, and then pardon me, the back side and then other side here. Here are some site photos. On the upper left is a view of the property, access from across Pu`u Hina Street. This is where cars go in. A view on the left-hand side of the building of the ADA parking stall and ramp. Here is a view of the main parking lot, and then a view of the area for the proposed parking addition. So, during our review of the amendment request, we kind of look at condition compliance, where folks are at with complying with conditions of approval. There was a condition in the 1998 amendment that required a sign indicating no parking along the private roadway here as well as pavement markings. The sign has been installed, but no pavement markings were evident when we went out to do our site visit, so we've added an amended condition requiring no pavement no parking pavement markings. Another thing we found during our site visit was this unpermitted carport structure coming off the back side of the building. It's what was built without a building permit and extends into the setback. In conversations with the Director, he was not inclined to grant a variance for this setback violation, so we've added a condition requiring the removal of this carport structure. EXHIBIT A 3 Here is a view of Pu`u Hina Street looking south toward Kaumana Drive, and a view of Pu`u Hina Street looking north toward Waianuenue, and the subject parcel is on the left-hand side. So, the Director is recommending approval of the amendment request with conditions. With that, I'm happy to answer any questions that the Commission may have. CLARKSON: Any questions for staff from the Commission? AU: Mr. Chair, I have a question. Christian, you mentioned those two violations, the private roadway and the unpermitted carport structure. Where is the Applicant with those issues? KAY: So, I spoke with the Applicant. They understand the concerns, and they understand the conditions, and based on conversation with them, that they are okay with those, and they can attest to that when they come up as well. CLARKSON: Any further questions? I just have a question about what is the use of the property immediately behind the Applicant's site. KAY: There are two residences back there, so it's a residential use. CLARKSON: Well, one of them looked, in the aerial photo, it looked quasi -commercial. I just was curious about that. KAY: II'm not aware of any commercial use back there, but the Applicant might be able to speak to that. There are no permits for commercial uses back there. CLARKSON: And, let me also ask. There's the roadway over which the Applicant has an easement. KAY: Yes. CLARKSON: And, how wide is that? KAY: I believe it is 13 feet. CLARKSON: Thirteen? KAY: Yes. CLARKSON: And, then there's a roadway adjacent to that roadway that serves the properties in the back to the south. KAY: Yes. CLARKSON: Is that correct? EXHIBIT A 4 KAY: Yes. CLARKSON: Are there any other roadways? Easements? I'm just getting at the point that it seems like there's quite a bit of separation between this property and the property immediately to the south, not only the two roadways, but the big lawn andI just wanted to find out if there were any more lot poles. KAY: Not that I'm aware of. So, on the left-hand side, you'll see the aerial photo here. So, this, the one directly adjacent to the subject property is the roadway over which the Applicant has legal easement. [Robert Yanazaki walked up to Chairman Clarkson and handed him a map.] CLARKSON: Okay. Any further questions? If not, will the Applicant or their representative please come forward? KAY: Thank you. KERN: Good morning, Mr. Chair. CLARKSON: Good morning. Could you both raise your right hand? Do you swear or affirm to tell the truth on this matter before the Planning Commission this morning? KERN: Yes. MYRIANTHIS: I do. CLARKSON: Please introduce yourself and then proceed with your testimony. KERN: Very good. Thank you, Mr. Chair, Members of the Windward Planning Commission, Director, Corporation Counsel, and all the wonderful staff from the Planning Department. Zendo Kern, planning consultant representing the Applicant. To my right is Dr. Myrianthis who is the owner and operator of this project. Overall, it's a relatively straightforward amendment to this. He's been in operation since 1986. No complaints. It's good, good practice needed close to the medical facilities up Waianuenue. Related to Commissioner Au's question about the, the lean-to shed in the back, yeah, we got notified of that a few days ago, and we're okay with—you know, that will be coming down. It's part of the conditions. As far as the markings on the road, I think the pavement markings, which is an oversight. They did put the sign up, and I think that was an oversight. So, now with these conditions, they will obviously have those pavement markings on there. The egress and the ingress of the site is relatively smooth. People come in off of Pu`u Hina Road and exit out of the easement to the south. It's not the type of business that gets drop-in traffic. EXHIBIT A 5 Everybody is by appointment, and so there's a nice steady, you know, flow of people going in and out. I haven't received any major calls. I had one call yesterday from one of the surrounding property owners that was just trying to get more of an understanding of what that 860 -square foot looked like. I had sent her the floor plan and the site plan, and basically told her that it was three treatment rooms and an office, a hallway, and a little landing area. That seemed to ease those concerns. When we look at the building as a whole, right now, the basement as well as the upstairs is permitted for the commercial use. In this case, those will be decommissioned from the commercial use, and they'll all be down to the single floor. So, in essence, it's actually reducing the overall square footage that will be used for commercial use in keeping it all on one level. And, I'm going to let doctor here explain the process in which the new HIPAA requirements and what not have an effect on this and how this will help that out. MYRIANTHIS: My name is Nick Myrianthis, and I'm a physical therapist, and I've been in practice since 1982, in private practice. When we acquired the building in 1986, things were very different. We had three people in a room. We actually had almost five people in cubicles at that time. But, as you know, with HIPAA regulations, privacy is required so focusing on not being able to overhear. The practitioner working with our patients, so at this point, we actually have only two effective treatment rooms. We have a gym, which occupied the previous treatment area that—it was a treatment area that was actually was the living room, existing living room of the house. It was in the center, and that now is our main gym. We have a little bed in the side, but it's too, too tight for it to be a treatment area. It's—it's an overflow bed in case we are so packed that we can't accommodate. So, essentially, right now, we have two treatment rooms that function which is not adequate. A lot of times, we are treating patients, and we have, we can have three or four people that being treat concurrently. So, it makes it difficult for us to do our work sometimes. The other thing is that if my wife and Imy wife is a physical therapist as well. Her name is Carol Myrianthis. She is well known. If we both want to work together, we just, with the initial condition when we acquired the building, that's impossible at this point. So, this is the main reason why we're asking for the addition. CLARKSON: Have you received the Planning Director's Background Report and Recommendation, and do you agree with all the conditions in there? MYRIANTHIS: Yes, I do. KERN: Yeah, so, happy to answer any questions CLARKSON: —Any questions? If not, thank you. KERN: Humbly ask for your support. Thank you. EXHIBIT A 6 CLARKSON: We'll proceed to public testimony. Thank you. At this time, we have one person wishing to testify. Will Dwight Vicente please come forward? Please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Commission? VICENTE: [No response.] CLARKSON: Okay, please let the record show that Mr. Vicente is, his testimony will be unsworn. Please proceed. VICENTE: Good morning. My name is Dwight Vicente representing the Hawaiian Kingdom. This property that's on the agenda is actually still under the jurisdiction of the Hawaiian Kingdom. Meaning, the State of Hawaii, the County of Hawaii, the State Land Use Commission, the County Planning Commission has no jurisdiction over these lands. These are the lands that was not ceded in 1898 by the banana Republic of Hawaii to the United States and incorporated under Article IV, Section 3, Clause 2 of the U.S. Constitution. Those those lands that was ceded is limited to 1,750,000 acres, and it was rebranded as, in 1920, as Hawaiian Home Lands. That includes all of Mauna Kea, you know, the TMT hearing or the, all these complaints about Mauna Kea? Well, that is Hawaiian Home Lands. This property here is still under the jurisdiction of the Hawaiian Kingdom. It was only leased out. The leases all ended, and anyone who claims to own the land and occupy the land is based on fraud. You have a Corporation Counsel sitting there. She needs to educate you guys, or you guys need to ask her questions about my argument, because it's valid. There's no amendment to the 1898 Joint Resolution, and there has been no challenge to the 1898 Joint Resolution, so for now, it stands. But, there is still the 2,000,000 plus acres that was not ceded that still has Native Tenant Rights attached to `em. And right now, because the lease has all ended in 1915, there, there's no leases on the land. Just Native Tenant Rights, meaning, there is no jurisdiction or the natives do not need to ask permission or get anyone to do what they need to do to live on the land. It's theirs for the living. So, with that, I'll end with the reservation of the rights of this Kingdom under the Queen's Protest of January 17, 1898[3], against, 1893 against U.S. Minister Stevens. It has yet to make its way to the U.S. Supreme Court, Article III, Section 2, Clause 2, original but limited jurisdiction. The other one is the 1898 Joint Resolution. It's unconstitutional because the banana republic consisted of U.S. citizens who were here on an invalid Reciprocity Treaty of 1875, and what they did was criminal. It was not an act of war. There was no declared war, no peace treaty signed. Now, go back to the 1875 Reciprocity Treaty. King Kalakaua and the U.S. President did not sign. And, if you go back, way back, to 1820, President Monroe appointment John C. Jones as an agent for the U.S., and he was in charge of the missionary family and the U.S. Navy that was sent here without a treaty. Thank you. CLARKSON: Thank you. Any questions for this testifier from the Commission? REPLOGLE: Yes, I have one, or several. I understand that possibly you do not recognize the government, the County, the State, or what have you. My question is why won't you swear to tell the truth? What's to keep me from saying, "oh, I don't need to listen to him if he doesn't, he EXHIBIT A 7 might be telling the truth, or he might not be telling the truth." I've been thinking this. I meet you every month, and why won't you say, "I'm telling you the truth as I know it." Thank you. VICENTE: My statement is based on law and fact. The facts are based on the law. That's why I cite the 1898 Joint Resolution not being law, and the State of Hawai` i is not, it was created under the Northwest Ordinance of 1787. There's no amendment to create more than five states under Article V of the Northwest Ordinance. So, when you look at the U.S. Constitution, the Northwest Ordinance, and you look at the Hawaiian Kingdom, look at the treaty and what is being applied here, you start to question, but that's why you have a Corporation Counsel. You need to ask her. She probably understands what I'm talking about where most people don't. I've spent years trying to figure out, all these things out. REPLOGLE: Okay, I get that. I just don't know why you won't say what you just said to me, yes, it's the truth as I know it law or not. And, thank you for your answer. VICENTE: Thank you. CLARKSON: Any further questions? If not, I'd like to call up the next testifier. Please Mr. Robert Yanazaki, would you come forward? DELA CRUZ: He went outside, I think. CLARKSON: Hm? DELA CRUZ: He went outside. HALL: I don't see him here anymore. CLARKSON: Has he just stepped outside? Could AU: Mr. Chair, I have a question. CLARKSON: Please. AU: Could I ask the Applicant to come forward? I have a question for the Applicant, please. Mr. Kern, I have a question regarding the increase of square footage of the property. Has it, have you been notified, or does it, from your knowledge, does it trigger any, any agencies to weigh in as far as sewer or water. I don't see anything in our documents that addresses that. KERN: When the Applicant goes in for the building permits for that, they'll have an agency review. Fire will look at it. Department of Health will look at it. Planning will look at it from a Plan Approval perspective. So that, that will trigger that review. EXHIBIT A CLARKSON: Any further questions? If not, thank you. We'll wait just a few seconds for Mr. Yanazaki to return. He's outside. DELA CRUZ: Here he comes. CLARKSON: Mr. Yanazaki? Mr. Yanazaki? YANAKAKL Yeah? CLARKSON: Would you please come forward? Would you raise your right hand? Do you swear or affirm to tell the truth on this matter before the Planning Commission today? YANAZAKL I do. CLARKSON: Please introduce yourself, where you live, and proceed. YANAZAKL I live in HALL: Sorry, you have to use the microphone. YANAZAKL OhI live in that building, in the back of this place, and I'm concerned about the driveway. CLARKSON: Go ahead. YANAZAKL I don't know, I don't know what— CLARKSON: You have some photos. YANAZAKL Yeah, the improvement. I don't know. You want to see? CLARKSON: Okay, yeah, could, do you mind if we past that amongst the Commissioners? Please just show it to every Commissioner in turn. [Mr. Yanazaki walked up to the Commission and showed them a picture on his cellphone.] CLARKSON: The testifier is showing us a photo of the driveway that's on the left-hand picture completely flooded for the first 20 feet next to the road, 20 feet or more. And, what do you have to say about that flooding, sir? YANAZAKL I don't know if they were going to make any improvements on that part. HALL: You have to speak into the microphone. YANAZAKL [Turning to the Applicant in the audience.] On the easement that you were granted, the roadway is getting kind of EXHIBIT A 9 YEE: Please address the Commission, please. YANAZAKL Oh. The roadway is getting kind of deteriorated, and the water is made to settle on the easement side. Because he has drainage on his side, but he made a hump, then the water collects on this side. On the access, the exit. And, that's our entry. CLARKSON: Is there a YANAZAKL No, I mean— CLARKSON: maintenance agreement that goes with the easement agreement that you both use? YANAZAKL I'm not sure. CLARKSON: You're not YANAZAKL No, but, he does improvement, but I don't know, he didn't talk to the neighbors I guess. I'm not sure. CLARKSON: Okay. YANAZAKL I'm just concerned for both sides, because that place used to flood before. CLARKSON: Okay, thank you. AU: Mr. Chair, I have a question. CLARKSON: Please. AU: Mr. Yanazaki, so you live in the flag lot behind? YANAZAKL There's a property in the back. AU: So, you're in a flag lot. YANAZAKL Not really. You know, because we're really the oldest people that own the property back there, I think. The other probably was sold and stuff, yeah? So, I think that part is access to our place and the one above, but we got the rights for the other side. AU: So, do you access that road YANAZAKL No, we use that road. AU: Oh, you do use that road to access your property EXHIBIT A 10 YANAZAKL —But then on the other one, my father purchased our, or the easement from the other property owner. Both of them worked together because the neighbors was getting conflict. AU: Okay, well, but my question to you is do you access— YANAZAKL I mean, yeah, yeah, yeah, I use that road. AU: You access that road— YANAZAKL Yeah AU: to get to your property. Is there any other access to your property? Or that's your only access? YANAZAKL That's the only one except for the other side that my father bought the easements for, but then another person claiming the rights for use that road. CLARKSON: Any further questions for this testifier? If not, thank you. [Mr. Yanazaki went to the Commission table to get the map that he had shown them earlier.] CLARKSON: WillI'm going to ask a question of staff. KAY: Yes? CLARKSON: Are you aware of any communications to Planning regarding the deterioration of that road due to the use by the Applicant? KAY: There have been none. CLARKSON: So, this is the first time you are aware— KAY: That's correct CLARKSON: of this issue? Thank you. Are there any—is there any further testimony on this application? Are there any further questions from the Commission for any of the testifiers? If not, I'll ask for a motion to close public testimony. REPLOGLE: I move that we close public testimony. DELA CRUZ: Second. CLARKSON: All those in favor? COMMISSIONERS: Aye. EXHIBIT A 11 CLARKSON: Opposed? Motion carries. Public testimony is closed. At this time, the Chair will ask for a motion for action. AU: Mr. Chair, I move that the application to amend Use Permit No. 42 be approved based on the Planning Director's recommendation which shall be adopted. REPLOGLE: Second. CLARKSON: It's been moved and seconded. Any further discussion on this within the Commission? If not, please call the vote. KAY: Yes, thank you, Mr. Chair. Commissioner Au? AU: Aye. KAY: Commissioner Replogle? REPLOGLE: Aye. KAY: Commissioner Dela Cruz? DELA CRUZ: Aye. KAY: And Chair Clarkson. CLARKSON: Aye. KAY: Thank you, Mr. Chair. Motion carries four, zero. The discussion ended at 9:35 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT A 12