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HomeMy WebLinkAbout2019-08-15 Leeward Exh A (SLU 19-052 & SMA 19-072) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT AUGUST 15, 2019 A regularly advertised hearing on the applications of KULANI VIEW LLC (SLU 19-000052 and SMA 19-000072)was called to order at 9:32 a.m. in the West Hawaii Civic Center, Community Center, Building G, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii, with Chairman Keith F. Unger presiding. COMMISSIONERS PRESENT: Keith F. Unger, Nancy Carr Smith, Perry Kealoha, Michael Vitousek and Faith"Faye" Yates ABSENT AND EXCUSED: Scott Church ALSO PRESENT: Malia Hall, Esq. (Counsel for the Commission), Michael Yee (Planning Director), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner) and Noriko Sauer (Commission Secretary) And approximately 22 people from the public in attendance. APPLICANT: KULANI VIEW LLC (SLU 19-000052) Application for a State Land Use District Boundary Amendment from Agricultural to Urban for approximately 8.814 acres of land. The property is located at 77-6439 Alii Drive, on the mauka side of Alii Drive across from Pahoehoe Beach Park, about 450 feet south of the Ho`omaluhia Drive-Ali`i Drive intersection, Kaumalumalu, North Kona, Hawaii, TMK: (3) 7-7-004:063. APPLICANT: KULANI VIEW LLC (SMA 19-000072) Application for a Special Management Area Use Permit to develop a 50-unit residential community, consisting of a 26-unit affordable housing apartment building, 24 market-rate units within an 8-unit apartment building and a 16-unit apartment building, a community room, fitness center, swimming pool, tennis court,playground with pavilion, landscaping, on-site parking, and on-site public use parking stalls for access to the Magic Sands Beach on approximately 8.814 acres of land situated in the Special Management Area. The property is located at 77-6439 Alii Drive, on the mauka side of Alii Drive across from Pahoehoe Beach Park, about 450 feet south of the Ho`omaluhia Drive-Ali`i Drive intersection, Kaumalumalu, North Kona, Hawaii, TMK: (3) 7-7-004:063. UNGER: We are going to hear both Agenda Item No. 1 and 2 together. Agenda Item No. 1, Applicant Kulani View LLC, SLU 19-000052, application for a State Land Use District Boundary Amendment from Agricultural to Urban for approximately 8.814 acres of land. The property is located at 77-6439 Alii Drive, on the mauka side of Alii Drive across from Pahoehoe Beach Park, about 450 feet south of the Ho`omaluhia Drive-Ali`i Drive intersection, Kaumalumalu, North Kona, Hawaii, TMK: (3) 7-7-004:Parcel 063. And then Agenda Item No. 2, Applicant Kulani View LLC, SMA 19-000072, application for a Special Management Area Use Permit to develop a 50-unit residential community, consisting of a 26-unit affordable 1 EXHIBIT A housing apartment building, 24 market-rate units within an eight-unit apartment building and a 16-unit apartment building, a community room, fitness center, swimming pool, tennis court, playground with pavilion, landscaping, on-site parking, and on-site public use parking stalls for access to the Magic Sands Beach on approximately 8.814 acres of land situated in the Special Management Area. The property is located at 77-6439 Alii Drive, on the mauka side of Alii Drive across from Pahoehoe Beach Park, about 450 feet south of the Ho`omaluhia Drive-Ali`i Drive intersection, Kaumalumalu, North Kona, Hawaii, TMK: (3) 7-7-004:063. So the first order of business, the Planning Department did receive a petition for standing from a hui, so the first order of business for the Commission is to hear the petition for standing, then the Commission, after the, after the process, the Commission will be making a ruling either for to grant the petition for standing in a contested case hearing for these two agenda items or to deny it. So we are going to first start with that. The Commission will be guided by Planning Commission Rule 4-6(a) and (b)to determine whether these petitioners have standing or not. Rule 4-6(b), among other things, states that the petition, if the petitioner meets one of four of the following qualifications: A. His or her interest is clearly distinguishable from that of the general public; or B. The petitioner is a government agency whose jurisdiction includes the land involved in the subject request; C. That the petitioner has some property interest in the land or lawfully resides on the land; D. That even though they do not have an interest different from the public generally, that the proposed action will cause them actual or threatened injury in fact; or—and then finally— E. Persons who are descendants of native Hawaiians who inhabited the Hawaiian islands prior to 1778, who practiced those rights which were customarily and traditionally exercised for subsistence, cultural or religious purposes. So, the process will be we'll start with the Planning Department presentation, then call up the applicant, the Planning Director and the petitioners. We'll then have public testimony, and at that point then the Commissioners will, will make their motions. So let's go ahead and start at this time with the presentation from the Planning Department. JACKSON: Thank you, Chair Unger. Good morning, everyone. So, as Chair Unger stated,the applications before you are a State Land Use District Boundary Amendment and then a Special Management Area Use Permit application. The applicant is Kulani View LLC. The subject property is located in the North Kona District,just mauka of Pahoehoe Beach Park, and you can see Alii Drive runs along the coast here, and then the Alii, the future Alii Parkway right-of-way makes up the mauka boundary of the property, which is outlined in black. This is a closer view of the property. You have Ho`omaluhia Drive to the north, La`aloa Avenue is this road here that curves to the south and meets up with Alii Drive, and then this green area along the coast here is the Pahoehoe Beach Park, and then further south you have the La`aloa Beach Park. The property is currently zoned Agricultural, which is shown in the green. 2 EXHIBIT A The applicant is requesting a State Land Use District Boundary Amendment from Agricultural to Urban for about eight acres of land. They are also requesting a Special management Area Use Permit to develop a 50-unit residential community, consisting of 26 affordable units and 24 market-rate units within two apartment buildings, as well as a community room, fitness center, swimming pool, tennis court,playground and pavilion, landscaping and on-site parking, and on-site parking for public use stalls for access to the Magic Sands, or La`aloa Beach Park. The applicant has also filed a concurrent application with the Office of Housing and Community Development for what's called a 201H affordable housing project, and this requires more than 50 percent of the units to be affordable in exchange for exemptions from zoning, subdivision, and building standards. The applicant is requesting an exemption from the Zoning Code to change the zoning of the property from Agricultural-5 acres to Multi-Family Residential-5,000 square feet, which would allow for the 50-unit development. They are also requesting an exemption from the Zoning Code to allow a commercial parking lot within the RM-5 zoning district, and to allow relief from Department of Public Works standards for providing curb, gutter and sidewalk since the project will instead utilize walking trails. The 201H application and exemptions must be approved by the County Council via a resolution. So the 201H application is not something that the Planning Commission has authority to decide. The subject of this hearing today is a State Land Use District Boundary Amendment and a Special Management Area Use Permit application. This is the applicant's site plan. You have Alii Drive right here in the bottom left corner, and access would be taken off of Alii Drive. This area here towards the makai portion of the property is the proposed public access parking stalls, and then this crosshatch area that runs through the middle of the property is a FEMA floodway. So you can see the driveway access up to the affordable housing and market-rate housing will be through the floodway, and then you have the two market-rate housing buildings with parking behind it, and then further mauka the affordable housing units with the parking behind that. You can also see a tennis court, a swimming pool, and then really lightly you see four sites here, these are historic sites and the round rings around those sites are the preservation buffers —so, one, two,three, and then there is one in the floodway. The Planning Director will not be providing a recommendation at this time because he is concerned that the 150-stall parking lot was not represented clearly in the application as a parking lot that the public will have to pay a fee to use. Another concern is that the parking lot was not evaluated in the traffic study, the storm drainage study, or the archaeological preservation plan. The Director has been working over the last two weeks with the applicant, and has requested that they submit a revised application with this information, which the Director will then send to certain agencies for comment, which is our normal process. The Director also recommends a new notice be sent out to surrounding property owners, indicating the revised application. So, as I mentioned, the applicant and the Department have been working together over the past two weeks to get that revised information into our Department so that we can evaluate the resubmitted applications. And then as you know, you also received a petition for standing from the West Hawaii Surfing Association, Keawe K.K.K. Alapai and Paula McMichael. 3 EXHIBIT A And, that was a brief presentation only because the Director doesn't have a recommendation at this time. When we do move forward in the future, we'll provide an updated presentation with our full recommendation. UNGER: Great,thank you. Commissioners, any questions of staff? CARR SMITH: Yes, please. I have a process quandary here. So, I thought I came into this understanding that the reason we were seeing a State Land Use amendment, which we don't have jurisdiction over, right, was because of the 201H, right? JACKSON: So you actually do have authority to make a recommendation to the County Council on a State Land Use Boundary Amendment. The Commission usually reviews and makes recommendations to Council on State Land Use Boundary Amendments and Change of Zones. In this particular case, you are still reviewing and making a recommendation on the State Land Use Boundary Amendment, but a Change of Zone is being exempted through the 201H CARR SMITH: Because of the 201H. JACKSON: Yes. CARR SMITH: But the 201H, as you explained there, needs to go to County Council first. JACKSON: Not first, it can go concurrent with the State Land Use Boundary Amendment. So, for example, let's hypothetically say the Commission makes a recommendation today to forward a favorable recommendation to the Council on the State Land Use Boundary Amendment, then it will go up to Council for a decision, and at the same time in theory Office of Housing can forward a 201H resolution for the zoning exemptions to Council so they can review the two at the same time. That's what would happen in an ideal world. CARR SMITH: Okay. I was wondering how often the Department deals with these 2011-Is and what the general experience has been. JACKSON: We are getting more frequent applications for them. Michael, what do you think, about two to three a year recently? YEE: Yeah, two or three hard applications, but a lot of inquiries from a lot of developers. JACKSON: And, Nancy, on a lot of the applications, you don't even see them because they don't need an SMA permit or a State Land Use Boundary Amendment. So they just go straight to Council through Office of Housing for like zoning exemptions or subdivision exemptions. So this is a unique situation. CARR SMITH: Yeah, I'm sorry,just, last question. I was just wondering what your thoughts are then about this 201H and how it circumvents all of the normal procedures that you guys go through. Is the affordable housing part of it enough to balance that out? 4 EXHIBIT A YEE: I think, candidly, we see a trend with a lot of developers inquiring about 201H as a way to try to get around certain zoning or certain ordinances, certain rules. And so we've been messaging to developers that, you know, we still have purview over, you know, safe standards and stuff like that, so you can't just do whatever you want on water, sewer issues, that you can't exempt everything. But it's not generally totally well-defined yet. So I would say in more recent time, and the trend has only been in the last couple years since I've been here where we are trying to feel out where we stand, we have been pushing the State for more comments around where they see this line. I think internally we've had deep conversations with Office of Housing to make sure that we try to stay on the same page as much as possible. Obviously, they have a mission to want to have more affordable housing, but we have to find the balance between having affordable housing and what are some tradeoffs possibly then to get that that may go over a line, too. So I think it's a work in progress for sure. CARR SMITH: Thank you. JACKSON: Commissioner Carr Smith, Jeff just reminded me, too, that it's not just private developers that use the 201H process; a lot of non-profits also work with Housing and provide up to a hundred percent affordable housing through the 201H process. UNGER: Commissioner Vitousek. VITOUSEK: Thank you. My question was just on the 50 percent affordable housing. Is that specified in the 201H regulation? JACKSON: Yes, that's the minimum requirement. UNGER: Then to clarify, we are going to have the hearing first on the petition for standing. So it sounds like whether that is granted or denied, it sounds like the Commission will not be ruling on and not be making a motion on either Agenda Item No. 1 or 2. Is that correct? JACKSON: That's correct. The Director wouldn't have a recommendation until the application is revised. UNGER: Okay, great, okay, so, technically, what is the status of the application—and we'll talk to the applicant also —but, is your understanding that it's deferred at this point or withdrawn? JACKSON: It's not withdrawn; it's on hold until the revision comes in. UNGER: Okay, okay, thank you. JACKSON: And my understanding from the applicant, they just emailed yesterday and said that they hoped to get it to us next week. 5 EXHIBIT A UNGER: Okay, thank you. Commissioners, any other questions? [None.] Thank you. At this time I'd like to call the Planning Director up, the applicant and the petitioners. Please raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? APPLICANT/PLANNING DIRECTOR/PETITIONER: I do. UNGER: Thank you. If we could just pass the mic starting from my right to my left, if you could state your name and area of residence. VALEN: My name is Gregory Valen. I'm the owner of the land and I live on Oahu. FUKE: Good morning, Mr. Chairman, Members of the Commission. My name is Sidney Fuke. I'm a planning consultant and today I'm just in the capacity of his advisor limited only to the contested case portion. ALAPAL My name is Keawe K.K.K. Alapai and I live Ho`okena area. P. MCMICHAEL: I'm Paula McMichael and I reside in Ahupua`a H6lualoa and Kahalu`u. YEE: Michael Yee, Planning Director, reside in Hilo. UNGER: Thank you. Why don't we start with the petitioners? You are familiar with the process. You heard the criteria, which qualifies you as a person of standing in a contested case hearing. If you could, this is your opportunity to talk to the Commissioners here in regard to your standing in a contested case hearing. ALAPAL Okay, I guess I'm coming in as a lineal descendant. My name is Keawe K.K.K. Alapai. My mother is Kalua P. Alapai. My grandfather is Keawe Herbert Alapai. My great-grandfather is Keawe Alapai. My great-great-grandfather is Keawe Alapai, Sr. My third great-grandfather was William David Alapai Kahinu. My fourth great-grandfather was Kanui Halawa Namaielua. My fifth grandmother was Kma`u. My sixth great-grandfather was Kamehameha L So, I guess —Kamehameha I was the ruling chief. Kma`u is a lateral descendant of Kamehameha III who issues all these land deeds to everybody on all the State—so I guess, yes, lineal descendant on that. Any questions? UNGER: Thank you. P. MCMICHAEL: [Ms. McMichael displayed a collage of photographs and article excerpts in front of the Commissioners.] I'm Simmy McMichael, Paula, Paula McMichael. I have a surf shop for four decades, 41 years. This area is within us. It goes from Banyans, Lymans, Magic Sands to Kahalu`u. I want more than three minutes and that's all I'm asking; I'm not asking for anything else because I know I can't stand here and tell everything that I know. And you all know me, I can't, I'll get cut off right away. UNGER: That's no problem. We'll give you more than three minutes, and, again, but if you would—and we understand, we understand you have a lot to say about this property, you know, 6 EXHIBIT A we do understand that, we've been reading your testimony—but I would really encourage you, we are not, we are not going to be making any decisions on the Agenda Item No. 2, we are really just focused on you as a petitioner and do you have the right to intervene as a petitioner, so if you could focus on Criteria A, B, C, D, E, as we talked about, that will really help us out. P. MCMICHAEL: Well, how it would hurt me is I live, I live on this Alii Drive, we surf in the, we surf all here, I have mo`opuna-s here. You do not have the right to allow 50 more units when the next door property—you are not even asking for an EA, it's a 17 million-dollar project, it's a major project. You are trying to reclassify the land from agriculture, which would only allow one to two residence, and now you are going to put 50. This will impact us on the evacuation, and we can't get out fast enough. There's been—and you saw my testimony, we can't get out, it goes to a bottleneck situation. And I'm saying that you did not demand these people the responsibility to do an EA and what we can all comment on, there is a comment period. But you did make the next door neighbor, Alii Palms, here, very next door, and in their EA—(pointing to her collage panel) right here, Pahoehoe, and there's, right here, it says it should be noted notwithstanding the County approval with conditions that resulted from the SMA process, the Police Department recommended in response to early consultation in the EA against any further development on Alii Drive until Kahului to Keauhou Parkway has been completed and is open for traffic. But they are getting away, try and skirt out the issue of the Ali`i Highway because they are doing their affordable. And let me tell you about their affordable; it's not going to be affordable in 20 years, because if you go to the Office of Housing, you will look into their file— and I put that in the testimony—they are only committed for 20 years, and thereafter it's anybody's game. I've never seen it living here since the early 70's that this is only allowed rentals. Agricultural, you cannot do vacation rental unless it was done prior to the 70's. After that, no. There is a new draft for the Kona Community Development Plan that says no more Agricultural to Urban in the SMA district. It's too dangerous for all of us. My mo`opuna-s go to training at the Kailua Pier for swimming because we no longer have this pool in action. I drop them off and I go to the gym. I give them warning, "If you have a tsunami warning, what do you do?" They don't know what to do. You guys —in Indo you had zero warning—you have to get out there quickly. And I, I wrote it in my testimony that the last tsunami warning, the traffic went up to Kam III, there was an accident at the top, it took them five minutes to get up, it took them 45 minutes to get back down to Kahalu`u Beach to dead stop. Then there was Royal Poinciana, everyone who lived on Royal Poinciana couldn't get out of their driveway, it went to a dead stop. So I went to the traffic department and I said, "Wow, what happened? Is it because of the three- way intersection that people could come and go?" And they said, "No, the cop said get out your car and start running." Now when I feel an earthquake, I don't, I'm on Alii Drive, I get in my car and I'm up the road; I don't want to get into this bottleneck situation. So, I'm saying—oh, oh, yes, and also the Kona Community Development Plan in 2018 said Alii Drive cannot handle any more development, it's going to get jammed in this emergency. So, yes, my life, my kids' life, my mo`opuna-s life, not only now but in the future, if we don't have Alii Highway, we will all be dead, and I want that listed there because if any of my mo`opuna-s die there, I'm telling you you are going to be accountable for it because I'm warning you that this will happen. And I don't take things for granted; I don't let my children drive the car to the shop, or I drop them off, I'm going to make sure they have a car because I'm not taking things lightly. I've been in the 7 EXHIBIT A situation at Konahaiki. At a quarter to seven in the morning, and that big earthquake, I did not know that was an earthquake. I thought, "Why are they doing construction on a Sunday morning? Why is this big boom?" And the whole water shook. And we continued to surf–is that my three minutes? But the security guard started waving us and said, "Wow, that was an earthquake, you guys have to get out because there is a possible tsunami." That was a panic. I never will forget that because it was a four-wheel drive situation. And when I came home, I saw all the damages. We took the upper road and there was like full-on damages. I mean, I, the sea is rising. And, you can see, this, Uncle Junior's beach, look at the road, you know. And then when we did the Banyans, they said that the middle of Alii Drive centerline was the high tide mark, you know. And, to be even putting the 50 units here with the flood zone in the middle, the Wai`aha flood zone. Let me tell you, I had a flood zone up in Holualoa, and that thing used to, it used to drain continuously like a beautiful river. And you have to realize where there was rivers, you had the ancient Hawaiians who grew their crops because they needed to be by the waterways. But, when –I don't know, it's been like the last maybe 20 years, it's been dry–and then when you have the flood, ho, it comes just jamming down and it's like, it's not just water, it's boulders, boulders, it's super scary. And you are putting this project above this flood zone, this Wai`aha, the same one that I have, and you are going to do mass grading. The file upstairs at the Housing shows mass grading. You don't mass grade in a flood zone; you divert, you're going to divert. And there's been diversions up on the top with all the coffee plantationers up there. So if you, if you, whenever we get those floods, it goes down on Kuakini Highway, and you see those films and the cars are all floating, I'm like, oh, my god, that comes from the top. And then there was one owner and he said they never had flooding in Royal Poinciana, and his house was just totally flooded out, and he fixed it, and then next flood, there was another one right through his house. So I'm saying that–and even my neighbors up on the top,they never had the flood go to their house, now it's going down their house, now it's going down Hualalai Road, it's crazy. And the more construction that you have, you have to be careful of the floodplain. And we cannot control it; it's going to be Mother Nature. And it's been lately, I don't know, we've had so much rain. And another thing is it's agricultural. We need plants. We need trees. This was, this was Hawaiian's, the Hawaiian way. When I went to the Cultural Resources Committee [Commission], they said, oh, that's just farming over there. Let me tell you, that was a red light. Ron Dela Cruz, he was on the Burial Council, oh, my god, he got so angry, I'll never forget it, I'll never forget, he said, "Give me a paper, give me a paper," and he got this brown piece of paper and he put a dollar sign, and he said, "This is what you are all about. And the Hawaiians, they never traded with money; they traded with plants, crops, fishes." And Theresa Donham, she was the chief of agricultural, well, she is such a blessing, she said, "When, when are you people, you developers, when are you going to embrace the cultural, when are you going to cherish the cultural?" And it truly is, because, I'm on Alii Drive, all those guys, they want to spray Roundup, you know; I brought a chicken because the chicken eats all the bugs. Boy, did they, they blew their mind at me bringing one chicken, and I said, "Wow,just eat the egg." She goes UNGER: Can I ask you — 8 EXHIBIT A P. MCMICHAEL: "Wow, Simmy, eat the eggs? It's poison." They're–real quick–they were UNGER: Excuse me P. MCMICHAEL: —rat-poisoning my chicken. UNGER: Can I ask you to summarize, and in particular, specifically how you are impacted and why, why you should be granted standing in this hearing? P. MCMICHAEL: Because I want to protect our waters, and our lives are at stake. We surf. I know this community very well, in and out, 41 years. There was no surf shop back then. They are all parents now. And we all take our keiki-s and our mo`opuna-s to the beach. My kids are, they are water people. And UNGER: Good P. MCMICHAEL: I have horses and I would love to have the horses back on Alii Drive, period. I can't have my horse there. I have horses. UNGER: Great. Thank you. ALAPAL Oh, like, my grand-aunt, she's coming in, I guess, as a lineal descendant also. Her great-grandmother was Asuik[phonetic] Akau, A-K-A-U, and on her marriage certificate where she can provide–because I heard there is a legal thing and I guess to get standing you have to be of Hawaiian ancestry of the ancient Hawaiians –and under her great-grandmother's marriage certificate, as a nationality, it states Hawaiian. Her parent, Asuik's [phonetic]parents shows Chinese as ancestries for both, but her great-grandmother shows Hawaiian as a nationality. As a descendant of I guess the qualifications of Hawaiian ancestry, I guess she qualifies. And then, to get deeper, if we have to show the genealogy, then I guess she can come under mines as a lateral descendant. And then, I might have to show on the property, I think I saw Jeanie or Jane, I think, Jeanie or Jane Lahilahi on one of the landowners. She's a second cousin to my Kanui. She come from Keli`imaika`i, Kamehameha's brother. Ka`oana`eha is the mother, Jane Lahilahi's mother, married John Young that had Lahilahi, Keoni Ana and Gracie Kama`iku`i. But on that line she's a lateral descendant through Kanui. If it's under Julia Alapai Kauwa, or Kauwa`a, her parents were Nahili and Kauwa`a. Kauwa`a was the daughter of Alapai-maloiki and Kamaua. Alapai-maloiki and Kma`u's grandfather Keeaumoku Papaiaheahe is full brothers. They come from Keawepoepoe and Kumaaiku. So, yeah, hopefully that covers. UNGER: All right, thank you. To the applicants and consultants, I have a specific question to ask, but then you can certainly continue with what you have to say, but, do you have any objections to the petitioners? FUKE: I have to get permission from–anyway, I think that in the perfect world, I think the applicant would prefer not having a contested case hearing and having all of these concerns 9 EXHIBIT A vetted, you know, through a public forum like this. It's ultimately a decision that the Commission has to make. I can understand some of the relevants from an SMA standpoint, you know, for contested case, like one of the contestants raised issues relating to tsunami impact, possible ocean water, nearshore water contamination in result of flooding or grading activity associated with the property, you know. Relative to the other concern about descendants, you know, lineage, I don't think that there's not, I cannot specifically understand whether it's a nature of ownership that's being questioned, you know, land ownership, or is there a concern about like securing access to the property for religious purposes or cultural practices, whether it's —so, so I think those need to be further identified. We don't want to take a position necessarily to say we object to their request for intervention, but we'd like to bring that concern up to you, and make also this added request that there is some measure of urgency on the part of the developer because they kind of want to see the project through, they have some preliminary funding all the way, you know, like forward the affordable housing. So, if you can establish a schedule, say, for example, if there is, you know, their request is granted and a schedule is established, the hope is that prior to the next major milestone for the contested case hearing, during the intervening time, there can be a discourse or discussion with the intervenors and hopefully arrive at some resolution such that a contested case hearing can be alleviated in the future. VALEN: My name is Gregory Valen. I'm actually the landowner, and I'm the landowner, I've owned the land for the past ten years. And I thought I'd come in today just simply because I'm not really a developer, I'm not really part of the process as much; I have friends that wanted to get involved with it. But I want to just explain a little bit about my intension as the landowner and the history of what we are trying to do here. That's all I want to do; I want to get very clear on what's happening because our goal is not to really harm anybody. Our goal is to help the community, not to harm. And just right now my background is, I've been a resident of Hawaii for 45 years, so probably as kama`aina as you can get. I'm also a surfer, I do more standup now than anything, I'm a paddler; I do all these things, and pretty much have been a part of the Hawaiian community for years. And buying this land ten years ago, my intension was to build the agricultural use, build a home and possibly a barn, maybe some stables. But after turning 70 I realized that that's probably a pipedream and not really a reality. So my intension was that, you know what, it's too late for me, but I've had a good life here in Hawaii, what can I bring back to the community that would be a benefit to the community. And I pretty much talked to my friends and, you know, these people are in Washington, some are here local in Hawaii, and they pretty much said why don't we go for, you know, one of these 201Hs, which I had no idea what it was, where we can provide affordable housing back to the community. So in my heart, under oath, I thought I was doing a pretty good thing because West Hawaii needs, desperately needs affordable housing. And I knew over 50 percent of the units had to be in, I said we need to set some criteria. Again, I'm not a developer, and I thought this was a very clean deal because this is not, this is not a TMT, this is not a Vrbo, this is not an Airbnb; this is for residential people, you know, on this side of the Island of Hawaii. That was my intention. And when we sat down—I'm sorry, I have notes, I'm a little older now I've got to look at my notes —but we set requirements and that was, Number One, affordable housing. And the second 10 EXHIBIT A thing we came in, being pretty much part of the Hawaiian community after 45 years, as I said, we stated that all archaeological sites have to be identified, isolated and protected and given public access. So I thought we were doing a good thing to the Hawaiian community. Third planned thing is we are not building at all in the floodplain. And I understand that there is a flood issue and we are going to leave that alone; in fact, we are even, I'm in discussions because I know people from the Nature Conservancy that maybe we can utilize that and bring in indigenous Hawaiian plants since it's really unusable to build, and bring back some, you know, some of the idea of where that's been of the older days. The parking, you know, is a thing that came up kind of after the fact. We are looking at that because we want to probably clear up some of the parking. I know, when I go to my land there now, that there's parking on both sides, sometimes even double-parking, and it clogs the area, you know, Pahoehoe State Park and also Diamond Head Beach. And the last thing is, of course, is just to cover the cost of the building and the construction, not really looking to make—I'm not really looking to make a lot of money on this; I'm just looking to see what is the best use for the land that we can give back to the people. And, I've got a lot of letters here. These were all sent to me. And I'm not, like I said, I'm not an expert in this area; I'm just showing my feelings. We've got lots of support and we've got some dissent. And I want to talk about that very quickly, like one of the examples is we don't have safety access and egress; that's all part of the permitting now, we understood that, we corrected the permitting to be able to handle that as far as the upper areas, so we do have safety access and egress to provide. We are trying to get, like I said, some of the other areas in there. But, at the conclusion of this thing, I'm retired, I don't have a lot of money, I have my retirement funds, I mean, but I've now invested 300,000 dollars in this permitting process on my own retirement funds. I'm just trying to get something back here, if we can make it happen, we can make it happen. If we get to a legal situation, legal issue, then I'm done, I can't do anything else, I mean, it's going to go away probably. And that's simply because the cost will be so prohibitive, and then it will basically take away affordable housing project for West Oahu[sic]. So that's my clearing. Hope it helps. LINGER: Thank you. To the Planning Director, do you have any objections to the petition? YEE: No objections. Comment, though. So, contested cases is one avenue for the public to be able to engage in development projects here. So I think it's a very important piece that's been provided within our rules and stuff for the public to engage. So the question really is, you know, within the criteria, do they have standing? And in this case you are very capable of determining that. I personally tend to decide with being a little more—I don't know, I think "lenient" is not the right word—but, you know, we want community to have an opportunity to have their say, okay. So, with that, I'm open to hearing things. I would also weigh in that I also would hate to see that contested case procedures are used to kill any kind of development that occurs, especially in West Hawaii. And I'm not saying that's the case here, but I want folks to really have standing to be able to make their case to you and not just argue case because they don't like a project. So those are just my comments around it. LINGER: Thank you. Commissioners, any questions of any of the people up here? 11 EXHIBIT A VITOUSEK: Sure, my question for the Planning Director, in a case where we don't have a recommendation, what is it that they are contesting? I mean, do they, is,just procedurally I don't understand. So, if they were, if you were making a positive recommendation for the SMA, they would be contesting that recommendation, but, and if you, you know, because you are not making a recommendation here, is there something for them to contest at this time? YEE: So procedurally, when, especially when we get a contested case, we typically will hold off on recommendation because we want to be able to hear the information from the contested case. So it's fairly standard that once that kind of happens, we hold off anyway. UNGER: Commissioners, any other questions? Thank you all. You may be seated. We'd like to go ahead and open up the hearing to public testimony. I have ten people signed up to testify. I'll call up six at a time. Starting from the top, Moana Roy Kuma, Ivy LoGerfo, Cherie Griffore, Kenneth Lancaster, Cindy Brooks and Simmy McMichael. Thank you all. If you could raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? TESTIFIERS: Yes. UNGER: Thank you. We can start on the right. And, again, I'd like to remind you, again, we are not, we are not hearing the, we are not making a motion on the project; we are, we are hearing reasons for, specifically for the petition for standing. So,please start. P. MCMICHAEL: Paula Simmy McMichael, resident of Ahupua`a Holualoa and Kahalu`u. You know, this, I'm not against affordable housing, but maybe put it somewhere other than Alii Drive. And then when you do affordable housing, I think it should be a purchase, and you should start from the very and very low income because those are the people that would be on the verge of being homeless. Give them a break. Why would you want to keep putting it to rental? These people are only committed for 20 years. So what happens after 20 years? It's Urban, RM; it becomes vacation rental. It's unaffordable. I'm on Alii Drive. I bought my house for 200,000. The taxes were only 200 to 400. Now it's close to 7,000 a year. How's my mo`opuna-s —I'm never going to sell it—how are they in 50 years going to pay? They will lose their land just like all the Hawaiians that used to live on Alii Drive could no longer pay their taxes. And if you are talking about retirement, what is social security? Nine hundred dollars a month? Where are you going to come up with these taxes? That's all I have to say. Oh, I have one more thing to say. When you do this in-house and not the state, state land, when you change the zoning, you have to be careful. Not just the zoning, but the density, that matters in everything around you, especially in the SMA. UNGER: Thank you. Please state your name and area of residence. LANCASTER: My name is Kenneth Lancaster. I live across the street from this property, so I am directly affected by this property and whatever they do. I see the traffic, I see the conditions, I see everything around that area every day from the beginning of the morning to the end of the night. I know what is going to happen, if they build here. It is completely irresponsible, if they do this, completely. To even try and consider this without the, at least, the byway up top, it's 12 EXHIBIT A just, I don't even know how you can even consider this. And on top of that, you know,this, this whole thing about"we are putting in affordable housing," yeah, they put the 50 percent in, but, come on, that's a joke; if you really cared about affordable housing, why not 100 percent? If they weren't trying to make money, why is it paid parking now? And if it's paid parking, let's think about this, there's a bait and switch; well, now we've thrown in paid parking. Listen to what she's saying about 20 years from now. What do you think is going to happen? You think the bait and switch ethic here is going to go away? No, it's not. Hawaii is a paradise. And I'm really new here. I don't have, you know, ties, and haven't been here for a long time, but I've been here long enough to know when something is wrong. This is wrong. If it's going to be done, it needs to be done right. This isn't the right way to do it, and this development should not go forward. Not at all. Thank you for allowing me to speak. LINGER: Thank you. LOGERFO: Hi, my name is Ivy LoGerfo and I live on Princess Ke`elikolani, which is around the corner from this project. I think it's a wonderful project but this is not a wonderful location for it. It's going to be bringing too much traffic to the area. Changing the zoning from Agricultural to Residential is just absolutely wrong. It's going to take the value away from the park across the street, Pahoehoe and Magic Sands. And I just believe that it's just going to just infill with too many people and too much traffic. Thank you. BROOKS: My name is Cindy Brooks and I own a condo at Kona Magic Sands, which is directly across the street from it, and so, as he is, we are definitely directly influenced by this property, which I would not agree to have it done. I don't know how 50 more people—actually it's 154 more people because if you count the amount of bedrooms that each one of those units has that they've written down, you get 154 bedrooms —as 154 people coming in and trying to get out in an emergency, it's not going to happen. Right now, as it stands today, it takes forever to get down Ali`i Drive going either direction. Just a year ago, I could go, at least I could go down from Magic Sands to Kahalu`u with no traffic at all, I didn't have to worry about it; Now I have to worry about traffic because it's jammed going down that direction, too. This place, this area, just cannot handle 154 more people coming in to it—plain and simple. Not to mention that she mentioned the flooding, the parking. Are you, parking—what do they want—put 150 parking spaces for Magic Sands Beach? Where are 150 people going to sit on that beach? That's not going to happen. And those lifeguards are supposed to watch 150 more people in the water? That's not fair to them. You are just looking, that is a disaster when you have to shove that many more people on that itty bitty little tiny beach. And parking, the parking now they have is sufficient for the amount of people that can literally fit on the beach, you know, unless you want to be Waikiki where you sit on top of each other, which I do not think we should. The sewage is another thing. Where is the sewage going to go? Is it going to go right to the land and go directly into the ocean, or is it going to be fueled into a, into a city sewage facility? You know, that's another question. And then the egress and ingress. I think I already talked on that. With 154 more people and cars trying to get out there, it's, you're not going to be able to get out there in emergency. It's going 13 EXHIBIT A to be miserable. So I agree with, like he said, that it would be inappropriate to put in that development in this area. And affordable housing on Alii Drive, I don't even know what affordable housing is, but I don't see how you could have affordable housing on Alii Drive. It needs to be in an area where it's more suitable for affordable housing where it would actually help somebody who needs affordable housing, instead of being priced way too high that they are not going to be able to, it's not going to really be actual affordable housing. Okay, I'm done. UNGER: Thank you. LANCASTER: Can I UNGER: One more comment? LANCASTER: Yeah, can I ask a question? Since I, I think I understand the four criteria for standing, since this has to be resubmitted it sounds like, I have a question of if I can actually add a petition as well for standing. If I understand one of the items that UNGER: There's —Staff, do you want to answer that? We can answer that after public testimony closes. HALL: I can answer that. You are supposed to file seven days before, so,the first hearing, and since this is the first hearing, basically you are untimely, you petition would be untimely at this point. LANCASTER: Can I just add a comment on? HALL: Sure. LANCASTER: Understanding how the, this tsunami, you know, I guess —as I said, I'm new, I'm new to the island, so —understanding the traffic and tsunamis, when I see this traffic there already, I can't even imagine, if there was a tsunami. We had 263 parking spaces from that one property. I can't imagine how that would affect everyone trying to get out. So, if there was a tsunami, all I want to know is who's going to come and, like, dig out the bodies? Because it's going to be a, it's going to be a problem. People will die. And, you know, like, it won't affect someone that lives in Honolulu that comes and looks at this property every now and then, but we look at it every day. Thank you very much. UNGER: Let's continue with, let's continue with the testimony. One more comment? P. MCMICHAEL: Adding to that, it says that in the year 2023 a left turn from this project will not be viable. And I want to comment that it takes me 15 minutes on high surf day to get out of my driveway. And I went to the Planning, the Traffic Division and I mentioned that, and Ken said, "She's exaggerating," and Ron Thiel said, "No, she's not. It takes up to 20." UNGER: Thank you. You all may be seated. Thank you for your testimony. Lokelani McMichael, Keawe Alapai, Sharon Willeford and Shannon Rudolph. Is there anybody else here 14 EXHIBIT A from the public that would wish to testify at this time? Please raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? TESTIFIERS: I do. LINGER: Thank you. Please state your name and area of residence. L. MCMICHAEL: Aloha. I'm Lokelani McMichael. I'm from the Ahupua`a Holualoa. I think it's very important that we keep contested cases, and we need transparency, we need Sunshine Law, because three minutes, roughly 450 words, is not enough time to educate developers form outside of here, in this case Washington, of what significant of this area Pahoehoe. Alii Drive was of the chief's residence, the royal ali`i. Surfing, fishing, canoeing, praying and agriculture are all a significance to us. Agriculture and farming are important. I don't see what's wrong with being self-sustainable, because what if some day we are cut off from supplies from the mainland? Many of the ahu were destroyed in this area, this property. Much has been bulldozed and it wasn't so long ago, 1980, before 1980 we had more, and I don't see why the people destroyed it, since we can find out who, weren't fined for it, and why canoe ahu-s weren't replaced. There is noted in the history that there was as many as like 50 canoe builders in that area, and the reason is because it's near the Wai`aha stream, and the way they got their canoes, the way they got the big trees down the hill was using the Wai`aha. So there was a lot of canoe building down there. As far as affordable housing, the developer submits exemption to County of Hawaii housing rules by offering 50 percent affordable housing. We were told they are not allowed to make money on it. The project, it targets median affordable, but what about people on the verge of homelessness? We have a homeless problem in Kona, and shouldn't they be of concern first? Affordable housing, it's more like what affordable, what median rental condo that expires in 20 years, because these aren't for sale. If they were, that would be great. I'm for affordable housing. This is the wrong area. I'm sure my friends who used to live on Alii Drive and can't afford to live there anymore, they would like to,they, you know, they can qualify for affordable and they would like to live back here. But it's not affordable. Our taxes went from hundreds of dollars to thousands of dollars. A hundred and fifty paid parking, so they can use Magic Sands. Does this all go back into the homeowners' fees for amenities, swimming pools, fitness center, tennis court? Is there a limit as to the amount of beachgoers that are allowed to go to Magic Sands? Because as we know, Kahalu`u is a mess right now. Kahalu`u needs a break. I don't see why the beaches don't get a break from all the tourists and residents, and everyone just trampling. It needs a break. The turtles need a break. Does any of the paid parking go back into paying maybe the lifeguards for all these people who are using the beaches? Because 150 more parking stalls, I think we're going to need more lifeguards. Let's see—safety concerns. We need an environmental assessment. This is a 17 million-dollar project and it's in a flood zone. Coastal hazards, storm waves, tsunami, erosion, runoff from pollution and earthquakes. This property, development, fell out four times so far because of zoning and flooding. Other projects nearby are already on hold, because Alii Highway does not 15 EXHIBIT A exist. The past tsunami evacuation ended up in a bottleneck situation up the Kam III and Royal Poinciana went to a standstill. Adding 336 daily trips to this area will put residents, visitors, beach park goers and the Kahakai Elementary School keiki-s, it will put all of their safety in danger. Switching it from a one-hour situation for agriculture to 50 urban condos, it's just adding too much without the Ali`i Highway in place. The Kona Community Development Plan Draft Page 147, Item 593, it would be wonderful to add all of Alii Drive to the Wahi Pana "natural resources,preserve their storied past and perpetuate agricultural traditions and unique rural [life]style." Also, this project, I feel, is a green light for others to change zoning from Urban, I mean, from Agricultural, one house, to Urban, 50. Because what, when, what are you going to say to the next person who wants to do a deal like this? You can't tell them no, if you told this one yes. Mahalo. KUMA: Aloha. My name is Moana Roy Kuma. I come from Honolulu and Kona. First of all, I kako`o all of the testimony in previous, I kako`o that; it means concur. I grew up in the area of White Sands. My grandmother lived right across the street in a really nice Hawaiian home over there. Now, fast-forwarding it, I was a substitute teacher for 15 years here in Kona, a long term, and one of my, not grievances, but you know when the surf report would come out in the morning, half the students weren't in class that day, more than half the students. So, it's not, I really value the testimony of the bottleneck syndrome. That's a big concern. Another thing I'm concerned about this morning is when I heard the words, "minimum requirements,"were being met. Why minimum? I think our community and our `aina is worth more than minimum requirements being fulfilled. That just goes against my nature, minimum requirements. Last but not least, some of you might remember my celebrated dad, Mauna Roy. You either loved him or hated him. I remember one community meeting, he boldly stood up and said, "After tsunami, there was a canoe stuck in a tree." That stopped that project, because it set a precedent; it happened once, it can happen again. So, kela wale n6 mahalo. UNGER: Mahalo. RUDOLPH: Aloha. Shannon Rudolph. I live in H61ualoa. Is this on? Yeah? All the same old reasons, you know, 15 years ago we were talking about concurrency and it's, it's really past time to talk about that again. Alii Drive, you've heard it over and over and over for months, years, that there just, the traffic is just too much down there. And it's really time to have concurrency and have a moratorium on large projects on Alii Drive; it just cannot handle it. It's always jammed. And being in a flood zone is ridiculous. The affordable housing component is pretty ridiculous for such a short term and high price. And also, the paid parking, like everyone said, where are you going to put all those people, if they go to the beach? Who's going to pay the extra lifeguards? It's just a bad idea to put another big project on Alii Drive. It's just a bad idea until we figure out what we are going to do with the roads. And there's climate change and tsunami. So even if it's only 50, it's still too much; it's more than the road can handle and it's more than the community can handle. Thank you. 16 EXHIBIT A LINGER: Thank you. You all may be seated—oh, I'm sorry, we have one more testifier. WILLEFORD: Aloha. My name is Sharon Willeford, a retired teacher. I did teach at Kahakai for many years. We did not have practice evacuations for tsunami. We did have practice evacuations where we walked the children down to the stone church and sat them on the lawns at the ocean. I support the contested case hearing. I stand for the keiki of our island. I stand for all the people. We need to grow food. That's a beautiful area. We could grow some kalo and some food for the people down there, make a beautiful park. Hilo has so many more parks than we do. Let's make Alii Drive a sacred area. Let the beaches rest. Let Kahalu`u rest. The coral is dying. I'd like you to read my shirt; it says, "Na`au or Never." Please follow your gut, your na`au, in all your decision making these days. We don't have much time. The planet is dying. The children are standing up and we all need to stand beside them so they can have a planet, so they can have a place to live and a beach to go to. Much mahalo and aloha. Kapu Aloha to all of you always. LINGER: Thank you. You all may be seated. Are there any other members of the public that would like to testify at this time? Seeing none, Commissioners, I need a motion to close public testimony. CARR SMITH: So moved. KEALOHA: I'll second. LINGER: We have a motion by Commissioner Carr Smith, second by Commissioner Kealoha. All in favor? COMMISSIONERS: Aye. LINGER: Motion moves unanimously. At this time, Commissioners, if there's no other questions, we are open for a motion. CARR SMITH: I move that the Commission enter into executive session to consult with its attorney regarding questions and issues pertaining to the Commission's powers, duties, privileges, immunities and liabilities pursuant to HRS 92-5. KEALOHA: I'll second. LINGER: We have a motion by Commissioner Carr Smith, second by Commissioner Kealoha, to move to executive session. All in favor? COMMISSIONERS: Aye. LINGER: Moves unanimously. For members of the public and the applicant, we are going to move to executive session, we'd like to ask all Planning Department and members of the public to leave the room while we consult our attorney over some details of our motion. Thank you. 17 EXHIBIT A The room was cleared and the Commission went into executive sessional 10:42 a.m.for the purpose of consulting with its counsel regarding questions and issues pertaining to the Commission's powers, duties,privileges, immunities, and liabilities,pursuant to Hawai`i Revised Statutes 92-5. At 11:04 a.m. it was moved by Commissioner Kealoha and seconded by Commissioner Yates that the Commission go out of executive session. Upon a voice vote, the motion carried with all in favor. Chairman Unger called a short recess. The meeting was reconvened at 11:08 a.m. UNGER: We'd like to invite the petitioners backup. The Commission had some questions, so if Mr. Alaoh, I'm sorry, I'm sorry the, the petitioners, yeah, Mr. Alapai and Ms. McMichael. If you can come up, the Commission, Commissioners had some additional questions for you. Thank you. Commissioners? KEALOHA: I'd like to ask the petitioners who is actually filing the petition? My understanding is it's under the Surf Rider Foundation? P. MCMICHAEL: No, West Hawaii Surfing Association. KEALOHA: Association. P. MCMICHAEL: Mm-hmm. We're both on it. KEALOHA: You are both members of the association? P. MCMICHAEL: Correct. VITOUSEK: So, again, our understanding is that in these cases where there is an association being represented that there be one person selected by that association to represent the interests of the association. Is that something that you guys would like to do? Designate one person to represent the interests? Or, would you rather file separate? ALAPAL Ask the boss. That's my boss. VITOUSEK: Got you. So, they're indicating that Ms. McMichael would be ALAPAL Right. VITOUSEK: representing the West Hawaii Surfing Association. P. MCMICHAEL: Yes, I'm the president VITOUSEK: —Okay. P. MCMICHAEL: of the association. 18 EXHIBIT A VITOUSEK: The other questions that I had, so, looking at the application, the first Item A indicates a descendant of La`aloa, registered with State of Hawaii. I was just curious if there was also ever an application with State of Hawaii to be registered as a descendant of Pahoehoe P P. MCMICHAEL: The Pahoehoe 1 is the Alapai, so, I don't know if you have to register it. It's under the land–I have the paperwork. VITOUSEK: It's separate process. I was just asking P. MCMICHAEL: —Yeah— VITOUSEK: if there had ever been P. MCMICHAEL: —it's the Land Court. VITOUSEK: formal recognition. P. MCMICHAEL: It is. It's from Kamehameha I to Alapai in Pahoehoe 1. It's in the doc—it's in the archaeology. VITOUSEK: Yep. P. MCMICHAEL: Yeah. VITOUSEK: So, Alapai was awarded the Pahoehoe 1 in the Mahele? ALAPAL Ah, what, I just saw spurts of the document. I saw Jeannie, Aunty Jeannie, or Jane Lahilahi's name on one of the documents of the thing so, but, the Alapai—but I guess Lahilahi's brother married Julia, grand-aunt of mines, or they are both family members of mines, but the, yeah, so, my second great-grandfather, Kanui Namaielua, was the second cousin of both. Lahilahi, Jane Lahilahi and Julia Alapai, or Kauwa`a or whatever her last name VITOUSEK: I was just wondering if you, if you know who was awarded Pahoehoe 1 in the Mahele. ALAPAL Do you know? VITOUSEK: I don't know. That's why I'm asking. ALAPAL Oh, yeah, that's why the spurts of documents that I saw showed Jane Lahilahi. I don't know if it was for Pahoehoe 1 or 2. VITOUSEK: It was for 2, I think. ALAPAL For 2? 19 EXHIBIT A VITOUSEK: It was in the document, yeah, that we have. ALAPAL So, if it falls under that,then I can run that, but then again, I also stated that Kamehameha III,there's a half-sister to my ancestor Kma`u. So, as Kamehameha III dishing out the land documents through all the applicants throughout all the islands is a lineal also, right? VITOUSEK: Sure, no just you know,just for us,we're just trying to like put the paper together ALAPAL Oh, yeah, yeah VITOUSEK: with all that. Like we see in the ALAPAL yeah, kinda VITOUSEK: the table of the Land Commission awards that the giver of Land Commission Award 3434-B was Alapa`i. ALAPAL Okay. VITOUSEK: Alapai, sorry. And, I'm just trying to figure out if that was a, and we don't have that paper in front of us, if she was the one who was awarded the land originally in the Mahele. ALAPAL Okay, all right. VITOUSEK: The next question would be relating to the sites on the property, the archaeological sites. ALAPAL Yeah. VITOUSEK: Have you ever visited the sites ALAPAL I visited VITOUSEK: on the property? ALAPAL Yes, I did, a matter of fact, like ten, 15 years ago maybe with Curtis Tyler, some of the Kipapa family, some of the Paleka[phonetic] family. We actually went. There was another owner before this one, I think. She used to live in a trailer home back there. But, yeah, we walked through. We went around. We, they went to the historical thing. Yeah, so, I seen and heard the little stories of it, and a VITOUSEK: And, you have an interest in ALAPAL Well, I'm 20 EXHIBIT A VITOUSEK: preserving the sites ALAPAL yeah, as a lineal descendant, I guess we have certain rights to make sure that the developer, you know, does everything accordingly and kind of respect the culture of the lineal descendants and its people, I guess, right? VITOUSEK: Yeah. ALAPAL That's why we're here, so. VITOUSEK: Thank you. ALAPAL You're welcome. VITOUSEK: Question for Ms. McMichael. Does the, does the West Hawaii Surfing Association's interest, are they affected by the project in regards to the use of public land and waters in the area? P. MCMICHAEL: Right now in the documents it says that the water of any flooding goes right down on the property, it flows, and then it goes onto Alii Drive, onto Pahoehoe Park, and into the Pacific Ocean. If they put up all these parking lots and, you know, where's the flood control? Where's the pollution that they're going to do, you know. Any time you have versus pavement, parking lot, cars, all the pollution comes from the vehicles. And I know for a fact when you have these kind of places and you're going to have all these visitors, they don't like to see one bug. They're going to spray, and they spray hectic. I don't spray. I go with my weed whacker, and I weed whack. For every spray you do, you can go on your hands and weed whack, and I do that. The land is so special. It's in the zoning of 500 feet below. Let me tell you about the waterways is that they should encourage planting. As dry and dry as it looks, you plant something—taro, potato, papaya trees, noni—once it is rooted, you do not have to water. I do not water my, I haven't watered my plants for years. My daughter and I, we butcher everything down, cutting down, cutting down because my husband is, he's not going to go do that. So, her and I, we do that. And, it's every month, and with this rain, it's crazy. But, I'm saying it's the beauty of it, because I have pikake trees, I have everything, and it just waters underneath below us. You know, it's just VITOUSEK: But, you mind if I ask the intent and purpose of the West Hawaii Surfing Association? P. MCMICHAEL: It's to protect our waters, save it for all the generations to come. It's all the protection of our water, and it's also the safety now. It's all that concern, because it is scary. And like, like Ms. Roy said, when the surf's up, those kids, they cut out of school. And when we had those high surf warnings, let me tell you, all the parents were calling the shop, "Where's my son? Is my son over there? Tell him to get home." And, I remember in the 80's that the police was going down Alii Drive and with their microphones, "Get out the water! Get out the water!" And, I would be at the shop, too. My dad would be calling me from Oahu. He goes, "What are 21 EXHIBIT A you doing? Do you have a tsunami that's going to hit at 2 o'clock? Why are you still at the shop?" And I said, "Well, it's 2 o'clock." He's like, "Oh my god. Get out of there. Close the shop, and get out of there." And, this is what we live with, and there's nothing that's going to stop us from going from the ocean because it's our sanity. That's where we just–wow, I, I can't even tell you what the ocean does for us. I mean, it's just spiritual. And, you know, in the documents that Kahalu`u, the historical documents of the Federal and the State, says it's supernatural powers, and there's lots of mana. There is mana. You asked me on the last hearing where do I pray. Let me tell you. I went up to Mauna Kea, and what? I didn't know. When I came home and saw the picture, I went whoa. And, Uncle Junior, I put his picture there. Because all of a sudden, these rocks and his corner of–you know, I went to so many meetings with Uncle Junior. He would have fought. His `aumakua is the shark. As soon as I posted it on social media, the 15-foot shark came in the area. I knew it was Uncle Junior. His, his body, everything is in this ocean. And, let me tell you, I didn't, I didn't include Joy Mills. She's the one who saved the one–and I helped her, I put West Hawaii Association in helping support her–but she saved the lot, the Lyman's Condo, and I did not put her there. And, I had a conversation with my guest from the mainland and my, my niece said, you know, there was a fellow, there's, her best friend had a miniature–well, she's had cancer, and then she said that, "I'm going to do whatever I want." And, then, I go –her name was Joy, so that was a hint, like,joy? Uh-huh. And then, so she was bedridden, and she had her little miniature donkey, and she would take it in her car, but then she, when she was bedridden, she had to have a caretaker. And, it was so weird because she said, "Joy." And she goes yeah, and no one could put up with her because she had this miniature donkey, and she says yeah, so the only caretaker that could put up with her was a Filipino. Joy got murdered, and I thought, "oh my god." And then yesterday, or was it, I can't,the day before yesterday, okay, the day before yesterday, my daughter and I, we were going to go to Kahalu`u property, and then there's this big, from my house, it was like the contrail. The contrail, it's like, and we thought, "What the heck is that?" And, then so we, we're trying to get a picture, but we couldn't get the whole picture, but West Hawaii Today printed it today. And then, my friend Mark Sales, he's a surfer. His picture is in there, and he took a picture of the con—it wasn't a contrail; they called Pohakuloa, and they said there was no planes in that area that morning at nine-ish. And, then where did Mark take the picture? Magic Sands. I go, "Bingo. Joy." Her ashes all was put here in this area. So, I'm saying, you know, I totally believe in the mana. My property at Kahalu`u has the largest archaeology site every found in the State of Hawaii. Right next to me is seven acres of burials. And let me tell you, you do what's pono. And I prayed. I went to the mauna to pray what am I going to do. And when this came up, I was like, wow, I just got, I just got done with Banyans. Wow, how exhausting that is. So, I pray to the mana, I pray to my ancestors what the heck am I going to do. Let me UNGER: Thank you for P. MCMICHAEL: Okay. UNGER: —for clarifying that. Commissioner Vitousek, did you have any other questions? VITOUSEK: No. 22 EXHIBIT A UNGER: To clarify then, if the Commission does approve standing, then it's our understanding that the petitioner will be West Hawaii Surfing Association and you will be the spokesperson. P. MCMICHAEL: Yes. UNGER: Okay. And, if we deny petition for standing, Corporate Counsel, can you clarify is there time for the petitioners to reorganize and refile a petition for standing? HALL: No, once denied, denial is final. They can't refile. KEALOHA: Would we be able to request refiling as opposed to denial? HALL: They represented that they're being, they're not separate parties, they're one party, so if you deny them as one party, then it's a denial, yeah. UNGER: If they come back as separate entities? HALL: They, you can't, they filed one petition as a surfing association, and that petition is timely. If they were to come back after denial and file another petition, that petition would be untimely at this point. UNGER: Okay. Good clarification. Any other questions of the petitioners? Thank you all. You may be seated. Commissioners, at this time, I'd like to entertain a motion in regard to petition for standing for our petitioners. VITOUSEK: I move that we grant the West Hawaii Surfing Association standing in a contested case based on their indicating that they will be representing their member, Keawe Alapai, who has displayed a genealogical connection to the property. KEALOHA: I'll second that motion. UNGER: We have a motion by Commissioner Vitousek, second by Commissioner Kealoha. Open to discussion by the Commissioners. VITOUSEK: Sure, I'll add that, you know, I believe that the information that we have been submitted along with Mr. Alapai's testimony clearly indicate that he has a genealogical relationship with the property, and that he has an interest to protect and preserve the historic properties that are located on the property potentially affected by the development. So, I think that is one of the main reasons to we have this ability to do a contested case now. The fact that his interests are represented by the West Hawaii Surfing Association isn't for me to decide who gets to represent him in articulating his interests, but I do think that his interests should be considered, and he should be, have standing in a contested case. KEALOHA: I share the same view. His direct lineal descendancy has been established and, therefore, as the surf association represents his interests, I support that as well. 23 EXHIBIT A CARR SMITH: I have some frustration with the process only because we have to decide on this contested case standing before we can make a decision on the case, and it makes it challenging because—I'm not saying I'm for it or against it—but we could possibly easily decide on whether we wanted to deal with the case or not, and with the contested case, it just makes it a whole different experience and level of energy for everybody involved. That's my comment. UNGER: I'll support the motion, but it was difficult because of just the procedure that we have to follow, and, so, while I support West Hawaii Surfing Association and I agree that they have some very passionate cares along this, along this area, everybody that testified here today for the most part that were not members of the West Hawaii Surfing] Association also had passionate concerns. And, so my—you know, I do question whether West Hawaii Surfing Association has an interest, as passionate as it is, any different than any of the other members of the public who also are concerned about this process; however, as Commissioner Vitousek stated, Mr. Alapai's connection to the land historically does tilt it to, for me, to back this motion. Hearing no other comments from Commissioners, hea inoa, roll call. JACKSON: Commissioner Vitousek? VITOUSEK: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Yates? YATES: Aye. JACKSON: And Chair Unger. UNGER: Aye. JACKSON: The motion to grant standing carries, five-zero. UNGER: Thank you. To the petitioners and the applicant, you'll be notified in writing of the Commission's decision. Our next process is to hear from the Commissioners in regard to how we will be conducting the contested case hearing. Our choices are to make a motion to hire a hearing officer outside of the Commission to hear the contested case hearing; or the Commission may hear it; or a member of the Commission may hear it. So, to Commissioners, I need a motion for the second phase of the process. 24 EXHIBIT A CARR SMITH: I make a motion that the Commission hears the case. YATES: I'll second. UNGER: We have a motion by Commissioner Carr Smith, second by Commissioner Yates. The floor is open for discussion. CARR SMITH: My feeling on this is just that we're all kind of vested in this. We've gone through these steps to date, and it seems like we could go ahead and hear the case. UNGER: Can Corporate Counsel give us just an idea of a time frame and time commitment? HALL: It's really hard to nail down what the time commitment would be, but I will say that there is mediation, right? So, everybody has to go to mediation before this whole, the actual contested case hearing. If mediation fails, it wouldn't be for another couple months, and then probably two to three months. I'm guessing. This is all approximate. And, then the actual hearing itself, depending on how many witnesses and exhibits and such, could be, you know, a day, or it could be a few days, you know. It's hard to tell without seeing what the parties are going to present. UNGER: Okay, and that, that is public testimony. Attorneys often are involved, or ? HALL: Everyone has a right to have an attorney present, if they would like to, but they do not have to have an attorney. And, yes, every hearing is pretty much similar to this where you would start with public testimony, but then it would then kind of switch into a quasi-judicial sort of hearing where, yeah, witnesses, evidence, and such, yeah. UNGER: Thank you. So, we do have a motion on the table. Any other comments or questions by the Commission? Hea inoa, roll call. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Yates? YATES: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Vitousek? VITOUSEK: Aye. 25 EXHIBIT A JACKSON: And Chair Unger. UNGER: Aye. JACKSON: Okay, the motion to have the PC hear the contested case hearing passes. UNGER: Thank you all. The agenda item number one and two has been completed. Petitioners and applicant will be notified, again, of that decision in writing within 30 days. JACKSON: Chair Unger, I have a question for Corporation Counsel. Does the Commission need to select a presiding officer at this time, or can they do that at a later date for the contested case hearing? HALL: Yeah, I mean, the assumption is it's the Chair, but if the Commission wants to select somebody else or the Chair would like somebody else to do it, then, yeah, we could do it basically when the hearing starts. UNGER: Great,thank you. Thank you, all for being part of this process, and at this time we're going to move on to Agenda Item No. 3. The discussion ended at 11:31 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 26 EXHIBIT A