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HomeMy WebLinkAbout2019-10-03 Hearing Transcript - Trevor Rodrigues Amend REZ 09-090WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT OCTOBER 3, 2019 A regularly advertised hearing on the application of DR. TREVOR RODRIGUES (AMEND REZ 09-000090) was called to order at 9:01 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Joseph Clarkson presiding. COMMISSIONERS PRESENT: Gilbert Aguinaldo, Dean Au, Joseph Clarkson, Donn Dela Cruz, Thomas Raffipiy, John Replogle. ALSO PRESENT: Michael Yee (Planning Director), Malia Hall (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), Alex Roy (Planner), and Sarah Hata-Finley (Commission Secretary). And 4 members from the public in attendance. APPLICANT: DR. TREVOR RODRIGUES (AMEND REZ 09-000090) Application for a time extension for Condition D (Time to Complete Construction) and Condition F (Dedicate Future Road -Widening Setback) of Ordinance No. 09-090A, which reclassified approximately 45,800 square feet of land from a Single Family Residential -10,000 square feet (RS -10) to an Industrial -Commercial Mixed -20,000 square feet (MCX-20) zoning district in 2009. The subject property is located along the north side of East Kawili Street at the corner of Laukapu Street and across the street from Central Supply, Waiakea Houselots, Waiakea, South Hilo, Hawaii, TMK: (3) 2-2-050:043. CLARKSON: And with that, we'll proceed to the first item on today's—first and only item on today's agenda, application on today's agenda, an application from Dr. Trevor Rodrigues to amend a rezone 09-000090. And, please proceed with a presentation, Alex. ROY: Thank you, Chairman. All right, today we're going to be talking about an amendment to Change of Zone Ordinance 09-090A. This is for Dr. Trevor Rodrigues, the Applicant. The Applicant is proposing to amend the following conditions of Ordinance No. 09-090A, to include a five-year time extension for Condition D which is the time to complete construction; a five-year time extension for Condition F which is the 10 -foot future road widening condition. [The] 09-090A ordinance was granted in 2009 to change the zoning designation of the subject parcel from RS -10 to MCX-20, which is Industrial -Commercial Mixed Use. The Applicant is proposing to relocate an existing veterinarian clinic to the subject property. He was provided an administrative time extension in 2014 to the finalized construction deadline. Final Plan Approval was secured by the Applicant in 2017 for the proposed building and parking area. He EXHIBIT A is now requesting condition amendments to accommodate longer than expected permitting times and to comply with conditions of the original rezone. If you look right down here, there is a small red dot. It shows the property just south of Banyan Drive, directly. This is the current County zoning. Here you can see the subject property in MCX-20, so that's that limited—industrial-commercial mixed use, excuse me. The ML is Limited Industrial, and the pink or fuchsia is Residential. The State Land Use Boundary Map, Urban. Here's the General Plan LUPAG Map. Shows the area here as Industrial, is the purple. Sorry, you can't quite see the "Ind." And, then Medium Density Urban for the remaining area around. So, that's the LUPAG General Plan Map. Here's an aerial photograph of the site. You can see two existing structures here. This one has been demolished and so it's all open. This is where the Applicant plans on building, and these two structures will remain as rental dwellings for the time being. They are currently being rented. Here's a site plan based off of the Plan Approval. You can see the proposed structure, veterinary hospital, parking area, entrance, and then the two existing structures to remain. Here's some site photographs. They are a little washed out because of the lights. But, the property from, east from—it's on the corner of Laukapu Street and East Kawili Street, so it's hard to kind of tell but there's an entrance off Laukapu Street and also off of East Kawili Street. A view west along East Kawili Street and a view east along East Kawili Street. And, then again, the entrance to the parcel from East Kawili Street and then a shot of kind of the interior of the parcel from East Kawili Street. So, at this time, the Planning Director would like to recommend, forward a favorable recommendation for the amendments to Conditions D and F of Ordinance 09-090A. Any questions? CLARKSON: Any questions for staff? If not, will the Applicant or the Applicant's representative please come forward? Please raise your right hands. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? FUKE: I do. RODRIGUES: Yes, I do. CLARKSON: Please proceed. FUKE: Sure. Good morning, Mr. Chairman and Members of the Commission. My name is Sidney Fuke. I am assisting the Applicant, Dr. Trevor Rodrigues. I did the original rezoning, EXHIBIT A 2 and so when the time extension was required or needed, Dr. Rodrigues reached out to me and, thus, here we are. RODRIGUES: Hi, I'm Trevor, I'm Trevor Rodrigues. I'm the veterinarian that's trying to build a clinic. We have an existing clinic right now on Holomua Street, and the plan is to move operations to the new place. FUKE: I'd just like, would like to just amplify on what, you know, your staff had kind of pointed out. There was an initial time ext—administrative time extension granted. Shortly thereafter, then Dr. Rodrigues proceeded aggressively to retain the services of consultants, architects, so on and so forth. Then he had, the Plan Approval was issued, and it took a while before the Building Permit could be issued. It actually took maybe about a year and a half. So, when the permit was finally issued in October of 2018, the deadline for having the building occupied would have been of July of 2019. And so, you know, there was like about an estimated 12- to 18 -month construction window, so obviously, you know, he wasn't going to have enough time. He had a contractor already lined up, financing with the bank, but the bank wouldn't release the money until this encumbrance is kind of like overcome. During the course of the preparing the plans for Building Permit, almost all of the conditions that, that were attached to the original zone change have been met. You know, things such as like your access location, your improvements to the sidewalk, so on and so forth. These are all kind of articulated in the conditions. The one thing that was not complied with was just setting aside the ten additional foot road right-of-way and that's going to be worked upon, you know, subject to the Commission and County Council's approval of the time extension. So, one other thing is that during the course of the sending notices to the surrounding property owners, I did receive a call from one neighbor saying whether this was going to be like a pet hotel where you have overnight accommodations for dogs, so on and so forth, and the concern was if you do then, you know, it could create a lot of noise, you know, in that area. But, Dr. Rodrigues affirmed that this, this is really like a hospital. So, only the sick and infirmed will be housed there, and there will be housing in an enclosed area where basically where a little noise would emanate from the property. CLARKSON: Any questions for the Applicant or AU: Mr. Chair, I have a question. You mentioned that a contractor was selected. Do you mind if I ask who was selected? RODRIGUES: Sakoda Construction, Adam Long. AU: Okay, so upon what happens with your application at this Commission and going through the County Council, do you anticipate hiring the same contractor? RODRIGUES: Yep, he's ready to go, chomping at the bit. EXHIBIT A 3 AU: Okay. CLARKSON: Any further questions? If not, thank you. You've already addressed the Background and Recommendation Reports. Is there any public testimony on this matter? Apparently, so. 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 today? VICENTE: [No response.] CLARKSON: Let the record show that Mr. Vicente is unsworn. Please proceed. VICENTE: Good morning. My name is Dwight Vicente. I represent the Hawaiian Kingdom. I noticed that the administrative rules for the Planning Department, they use a term, "Native Hawaiian." That term is defined in the Hawaiian Homes Commission Act so that term is limited to the Hawaiian Homes Commission Act which is 1,750,000 acres that was illegally ceded in 1898 by joint resolution to the United States by the banana republic that had no authority of these Crown and Government lands that was illegally ceded and was incorporated under Article IV, Section 3, Clause 2 of the U.S. Constitution. At that time period, 1898, the Spanish-American War ended and the—Spain had ceded to the United States without authority, Philippines, Guam, Puerto Rico, Cuba, and they threw in the bonus baby which is the 1,750,000 acres of Crown and Government lands. So, in 1920, those lands had become the Hawaiian Home Lands, which placed these lands under the Northwest Ordinance of 1787. That's why you have the blood quantum and Public Trust Doctrine. So, the State and County under Section IV of that admission act is limited to the 1,750,000 acres only. I believe this land here was not ceded in 1898 by the banana republic and, therefore, is still under the Hawaiian Kingdom, is Crown lands that has Native Tenant Rights and political rights to them. So, the County and the State has no jurisdiction through the Land Use Commission, the State Historic Preservation, the County Planning Department, and the Planning Commission. And, by the way, you guys are in the wrong location. You guys should be located at Prince Kuhio Plaza right now. That lands are Hawaiian Home lands. This is still Kingdom. Hilo was not ceded in 1898. So, the decision you make is in question because you are in the wrong location. It's just so as if the President, the Congress, or the U.S. Supreme Court under Article I, Section 8, Clause 17, of the U.S. Constitution. They're limited to the 10 -mile square, Washington D.C., so they can only make the decision there. So, the County and the State is in the, pretty much in the wrong location. They need to relocate for the time being untill the 1898 joint resolution get resolved. So, going back to the terminology of the Native, Native Hawaiian, so the Planning Department admits that they only deal with Hawaiian Home Lands. The other term is the Native Tenant Rights and political rights to the land. So, there's a distinction that there is a separation going on. EXHIBIT A 4 So, the Planning Department does not recognize Native Tenant Rights because they only deal with Hawaiian Home Lands and should be limited to that. So your rules need to be changed or you cease. With this, I'll end with the reservation of rights to this Kingdom under the Queen's Protest of January 7, 1898, 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 Joint Resolution of 1898. It's unconstitutional. And, going back to 1875, the Reciprocity Treaty, King Kalakaua and the U.S. President did not sign. And 1820, President Monroe appointed John C. Jones as an agent for the U.S., and he was in charge of the missionary family and the U.S. Navy. They was sent here without treaty. Thank you. CLARKSON: Thank you. Any questions from the Commission for this testifier? If not, thank you. Is there anyone else that would wish to testify? If not, I need a motion to close public testimony. DELA CRUZ: So moved. AGUINALDO: Second. CLARKSON: All those in favor? COMMISSIONERS: Aye. CLARKSON: Opposed? Motion carried. Public testimony is closed. At this time, I'll ask for a motion for action. REPLOGLE: I move that a favorable recommendation be forwarded to the County Council on the application to amend Change of Zone Ordinance No. 09-090A based on the Planning Director's recommendations, which shall be adopted. AGUINALDO: I second. CLARKSON: Before I call for a vote, I'm going to make a motion to amend the motion, and bear with me. It would be to remove all time, relevant time conditions from this rezone. If you could all look at the conditions, I'm going to move to amend the motion to remove the first sentence in Condition D; to remove the time limitation for the 10 -foot future road widening strip; and Condition F to be prior to receiving a certificate of occupancy; to remove all of Condition P that's left, which is the last sentence; and to remove "in a timely fashion" from Condition Q. AU: Mr. Chair, where are we looking at? Can you just point out what page? CLARKSON: On Page 3, Condition Q at the very bottom. HALL: But which document are you looking at, the Recommendation? EXHIBIT A 5 CLARKSON: I'm looking at the Recommendation. So, Condition D is on page one. Once again, to remove the first sentence of Condition D. Condition F is on page two, to make the 10 - foot future road widening strip contingent, not on time but on actually getting a Certificate of Occupancy to use the new building that's already got Final Plan Approval and a Building Permit. And, then, on page three, Condition P, having to do with additional time extension. That would be irrelevant because Condition D has been modified. And, then, in Condition Q, just to remove, "in a timely fashion." And, the reason I suggest this, this is a property that was rezoned in 2009. Its surrounding area is Light Industrial, Commercial. I think it should remain that way regardless of what Mr. Rodrigues does and that this should be a permanent rezone. AU: Mr. Chair? Question? Has the Applicant been discussed with these changes or is this? CLARKSON: Will the Applicant—do you have any objections to having the time limits removed from these conditions? FUKE: I haven't had a chance to discuss it with Dr. Rodrigues, but in concept, you know, I think it's good. I mean like, you know, recognizing that this is an area that's industrial, and so what you want to do is like basically allow the project to occur without any time constraints, and so from that standpoint, you know, how you had proposed to, you know, amend Conditions D, F, P, and Q, you know, substantively, we have no objection. I guess the only questions that I would have is a little bit more on a philosophical basis whether this is in moving forward, whether this is going to be the consistent position of the Commission and the Department. But, relative to this application, you know, I would recommend to Dr. Rodrigues that he would accept that. CLARKSON: Thank you very much. As to your second issue, maybe Jeff Darrow would like to speak to that? Consistency going forward? DARROW: Thank you, Mr. Chairman. Good morning, Members of the Planning Commission. As you're all aware, we've been kind of doing training on time extensions, trying to figure out which way to go, and during those discussions, there was direction towards how to deal with time conditions on permits which is normally related to permits that come before the Planning Commission such as Use Permits, Special Permits, SMA Permits, those types of permits. And, then the direction of going through time changes or time conditions in ordinances, which come before the Planning Commissions but ultimately are approved by the Hawaii County Council. And, so, in our discussions on the ordinances, there were discussions on both sides of the island, the Leeward Planning Commission as well as the Windward Planning Commission, and it's you know there really hasn't been a vote or kind of a, you know, whether or not everyone agrees or not but the direction seemed to be that if a zoning is appropriate for a particular area, why do we need time conditions. That was one question. The other question is if we do have time conditions, we just have them come back and refresh the time condition. We don't do the whole zoning ordinance again. But, the problem is, in certain situations, is that right now we're going through the General Plan Amendment, and so, if everything stayed the same, no problem. But, let's say in a particular area, in the future General Plan Amendment, they change it from say Commercial to Residential, and we've already approved the rezoning for Commercial with no time limits. And, so, then the EXHIBIT A 6 question is how do we re-evaluate if that they haven't complied to come back in and be able to change that zoning to a more appropriate zoning. Now, that's just an issue that can come up. In this particular case, we have looked at the previous General Plan which is currently Industrial. We've looked at the future General Plan which for this particular property and area are looking to change it to Light Industrial. They're changing the overall Industrial category to two categories: Light Industrial and Heavy Industrial. And, this is appropriate for this area which right now the zoning is MCX which is more a Light Industrial. It's an Industrial -Commercial Mix. So, in this particular case, it probably would be okay to go forward, and also knowing the fact that the Applicant is pretty close to complying with conditions, in this case. To answer your actual question, we have not HALL: It depends DARROW: —Yeah, getting back to the original question. Kind of took a little detour there. But, the reality is, we have not polled—we have not had a vote. We have not really taken it to the level. But, again, with permits, we have to change conditionsI'm sorry, we have to change rules, right? Because those rules say you have to do this for a time extension. For ordinances, it's usually a change in the conditions. There are some rules and code that we may need to look at to change overall, but basically, once you put in a condition in an ordinance, that becomes applicable for that particular zoning ordinance as far as time conditions or conditions of compliance overall. I would also look to the Director to see if he's okay with the overall direction. CLARKSON: Would Director Yee like to comment on my proposed amendments? YEE: I think as it pertains to this particular application, I agree with Sid in terms of I don't think, no, there's a rub on this application. I think trying to look down the road and what this all means, you know, this is coming at us right now, and I haven't had time to ponder beyond today. So, that's the best answer or response I have right now. HALL: What are all the ramifications YEE: Yeah, what are all the implications beyond this? But, it makes sense for this project if the Applicant is amenable with it. CLARKSON: If I could just speak in favor of my proposed amendmentI think the Commission spends a great deal of timeI consider it wasted time redoing time extension conditions. I'd say that's probably one of the biggest jobs we do, and if there are properties like this one that clearly appear to be properly rezoned, there is no reason to have to come back and revisit that rezone every few years either on an administrative basis or by the Commission as a whole or by the County Council. And, I'm perfectly willing to admit that there might be properties where a rezone should be contingent, but for those that are obviously appropriate for EXHIBIT A 7 the area they are in, there's no reason I don't see to put time limits on the projects that are suitable for that rezoned area. It's all—it's my only reasoning. AU: Mr. Chair? I support your amendment to the motion in this particular applicant. The Applicant has shown good faith in proceeding with the project. So, I don't see us as a Commission not granting or not approving this amendment. We know, we see a lot of developers that come and they want to do these projects, and a lot of `em don't even do anything and then they come for the time extensions. So, you know, it's nice to see an applicant that's almost there. They just need that time extension. So, I appreciate that. DARROW: Mr. Chairman? Question for Corporation Counsel. HALL: Mm-hmm? DARROW: Just for process clarity, we vote on the amended ordinance or motion first? HALL: Hold on, let's make it cleaner. Commissioner Replogle, would you like to amend your motion to include his suggested amendments? Because there actually wasn't a second to his motion, so technically his motion isn't even on the table at this point. So, would you like to amend your motion to include it? It's up to you. Or you can withdraw and have somebody else motion. REPLOGLE: I think it would be best if I withdraw mine and you redo yours, Mr. Chairman. And, then one of us can second. CLARKSON: Yes, point of order. Is it just customary or is it required by our rules that the chair never make initial motions? HALL: It's pretty much Robert's Rules that the chairs, you know, to make motions. CLARKSON: Okay. So, the Chair is asking that the motion be made in the form that would remove the sections of the conditions that I pointed out earlier. REPLOGLE: I can't remember what you said. CLARKSON: I'll go through it one more time quickly. To remove the first sentence in Condition D; to make the future road widening condition on it'd be done prior to receiving a certificate of occupancy; removing all of Condition P, most of which was already removed; and removing "in a timely fashion" from Condition Q. It basically leaves all the other conditions intact. Only removes time -related conditions. DARROW: We would also re -alphabetized Condition Q to be P, as P has been removed. CLARKSON: That, too. You can just say, "I so move." REPLOGLE: I so move. I agree with what he said. EXHIBIT A CLARKSON: Is there a second? AGUINALDO: I second. CLARKSON: Any further discussion? RAFFIPIY: Can I ask a question, Mr. Chair? So, are we, are we changing the administrative rules now? HALL: No. CLARKSON: No, this is just related to this proposed amended ordinance which will have to go before the County Council but HALL: Also, the rules only need to be changed if we changed time conditions for permits. So, this is zoning. It's different, so, in the end, once this goes up to Council, the Council could put back the time conditions and if they wanted to, they could just say we don't agree with that and do it, so you guys don't have the final jurisdiction on zones. But, if you guys want to start doing this for permitting, then, yes, we would have to make some rule changes, yeah. RAFFIPIY: Got it, thank you. HALL: Yeah. AU: Mr. Chair? Just to clarify with the Applicant and the Applicant's representative that these amendments are okay? FUKE: Yes, I just re -conferred with Dr. Rodrigues and, yes, the proposed amendments are totally acceptable. CLARKSON: If there's no further discussion, please poll the Commission. ROY: Commissioner Replogle? REPLOGLE: Aye. ROY: Commissioner Aguinaldo? AGUINALDO: Aye. ROY: Commissioner Au? AU: Aye. ROY: Commissioner Dela Cruz? EXHIBIT A 9 DELA CRUZ: Aye. ROY: Commissioner Raffipiy? RAFFIPIY: Aye. ROY: And, Chair Clarkson. CLARKSON: Aye. ROY: Motion passes. CLARKSON: Thank you. The discussion ended at 9:33 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 10 EXHIBIT A