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HomeMy WebLinkAbout2020-06-18 Leeward Exh B (AMEND REZ 09-098) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JUNE 18, 2020 A regularly advertised hearing on the application of KONA COUNTRY CLUB, INC. (AMEND REZ 09-000098) was called to order at 10:15 a.m. via live-stream meeting, with Chairperson Nancy Carr Smith presiding. COMMISSIONERS IN ATTENDANCE: Nancy Carr Smith, Perry Kealoha, Max Newberg, Mark Van Pernis, Michael Vitousek and Faith "Faye" Yates ALSO IN ATTENDANCE: J Yoshimoto, Esq. (Counsel for the Commission), Michael Yee (Planning Director), John Mukai, Esq. (Counsel for the Planning Director), Christian Kay (Planner), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner), Jessica Andrews (Planner), Alex Roy (Planner), Rachelle Ley (Secretary to the Planning Director) and Noriko Sauer(Commission Secretary) APPLICANT: KONA COUNTRY CLUB, INC. (AMEND REZ 09-000098) Application for a time extension to Condition D (Time to Complete Construction) of Ordinance No. 09 159, which reclassified 51.058 acres of land from an Agricultural 5-acres (A-5a) to a Multiple-Family Residential 30,000 square feet(RM-30) zoning district. The subject property is located mauka of the Mamalahoa Highway Bypass, between the Highway and the Kona Country Club mauka golf course, Keauhou Resort, Keauhou, North Kona, Hawaii, TMK: (3) 7-8-010:101. Secretary's Note: "- - -" indicates that there were technical and/or internet difficulties, which made the conversation inaudible. CARR SMITH: We're moving on to application for the Kona Country Club, Inc. This is to amend REZ 09-000098, application for a time extension to Condition D, time to complete construction, of Ordinance No. 09 159, which reclassified 51.058 acres of land from Agricultural 5-acres to Multi-Family Residential 30,000 square feet, which is RM-30, zoning district. The subject property is located mauka of the Mamalahoa Highway Bypass, between the highway and the Kona Country Club mauka golf course in the Keauhou Resort, Keauhou, North Kona, Hawaii. TMK is (3) 7-8-010: Parcel 101. All right, Christian, I think you're presenting this one. Please go ahead. KAY: Yes, thank you, Madam Chair. Can everybody hear me? Okay, great. I'm going to go ahead and share my screen now—give me one moment, please. And, can everybody see the screen there? Okay, thank you. As the Chair stated, this is an application for an amendment to a Change of Zone. If I can turn your attention to the image here. The subject 51.058-acre parcel outlined here in black, is located in the North Kona district of Hawaii Island, again, mauka of the Mamalahoa Bypass, which is running generally north-south through the slide, and makai of the Kona Country Club golf course indicated here in green. 1 EXHIBIT B The applicant is requesting a five-year, pardon me, it should read a six-year time,pardon me, a five-year time extension to Condition D, time to complete construction of Change of Zone Ordinance No. 09 159, which reclassified 51.058 acres of land from an Agricultural 5-acre to Multiple-Family Residential 30,000 square feet zoning district. The applicant initially proposed to develop a maximum of 60 single- and multiple-family residential units and related amenities with the intent of having them used as vacation rental units. In trying to address the various rezoning conditions, such as water, archaeological, and emergency access issues, the plan was scaled back to 29 single-family dwellings with related amenities, including a recreation center and to possibly include a pavilion or lanai swimming pool area and barbeque area. The reason for the request is after the rezoning was approved,the applicant promptly sought to address several archaeological and cultural related zoning conditions. That combined with the sagging economy of the time affected the applicant's ability to finalize financing of this project. However, with much of the soft work done and the uptick in the economy, the applicant believes they can secure the required financing to complete the construction plans and develop the projects within the requested five-year extended time frame. The subject property again outlined here in black is zoned Multiple-Family Residential 30,000 square feet, mauka of the area and in some areas makai of the Mamalahoa Bypass Road is Open, as indicated by the green color, that the area above the subject parcel is where the golf course is. And then further makai of the road we've got some Resort zoning, as well as Multiple-Family and some Village Commercial zoning. And then mauka of the project area is Agricultural 5-acre zoning, as indicated in the light green. The State Land Use designation for the subject property and much of the surrounding area is Urban, as indicated in the pink color. There is some Rural designations mauka of the subject property indicated in the light yellow color, and some Agricultural to the bottom of the screen here indicated in green. The subject property is located in the Special Management Area, as indicated in the thatched, red thatch here. It's, it doesn't have any shoreline frontage, as you can see. And on September 22, 2009, the Planning Commission approved SMA USE Permit No. 09-000034 to allow the development of a mix of 60 single- and multiple-family residential units and related improvements. The effective date of this permit was concurrent with the effective date of the subject rezone ordinance. So the punchline here is that the SMA permit is still in effect and would allow the scaled down development as well. The General Plan designation for the subject parcel is Urban Expansion as indicated by the black thatching. Other designations in the area include Open, indicated in the green color, and it's associated again with the golf course mauka of the subject parcel and some of the shoreline areas makai. The pink area indicates the Resort Node designation consistent with the, the resort uses makai of the subject parcel. And then some Extensive Agriculture here at the bottom of the screen and Important Agricultural Lands to the right-hand side of the screen, with some Low Density Urban on the far right. 2 EXHIBIT B Here is the Kona CDP map. The subject parcel is situated within the Kona Urban Area, which is indicated by this red line here; however, it is not located within any concurrency zones or transit oriented development areas. Here's an aerial view of the subject parcel, in this case outlined in blue. Again for reference, we've got the bypass road generally running north-south through the slide. As you can see, we've got the mauka of the area that the golf course, and then makai of the area, the resort area. The subject property is currently vacant of any structures or improvements. Here's the applicant's submitted site plan, again with Alii Drive, or Alii Highway, and the bypass road toward the bottom of the screen. The main entrance of the property is actually not shown on this site plan, but is a little bit farther off to the right-hand side intersecting with the highway. The site plan shows the current proposed development of 29 single-family dwellings, along with the proposed recreational facility here on the left-hand side, with parking and other amenities. Also shown on the site plan in these grayed out areas are the archaeological sites that were found through arch studies and then associated buffers, each of the rings being about a 25-foot buffer, so the outside ring would be about a 75-foot buffer. Finally, the site plan shows the secondary emergency access road here on the left-hand side, which is required by Condition E of the Change of Zone Ordinance. Here's some photos of the, the roadway access to the subject parcel. On the upper left is a view of Mamalahoa Highway Bypass looking south with the subject property on the left-hand side, and then the lower right image is Mamalahoa Bypass, Highway Bypass, looking south with the subject property on the right, so this is just an image of the intersection through that, that entrance way. The Planning Director's recommendation is to forward a favorable recommendation to the County Council for the Change of Zone, time extension for Change of Zone Ordinance 09 159. I'll leave the presentation up, if there are any specific questions having to do with the slides; otherwise, I'd be happy to answer any questions the Commission may have. CARR SMITH: - - - KAY: - -KAY: Nancy, you're, you're muted. CARR SMITH: Sorry about that. Thank you, Christian. Commissioners? Mike, go ahead. VITOUSEK: Sure, question for Christian. When was the time extension granted previously? The administrative time extension. When was that issued? KAY: I don't know, let me double check here. Give me one second. I'll be right with you on that, Mike. VITOUSEK: No problem. DARROW: Number 6 on the background. 3 EXHIBIT B KAY: Jeff, if you have that readily available, can you read that information,please? DARROW: Sure. That's No. 6 on the background. That's August 8, 2012. Okay? KAY: Yeah, so the admin time extension would have granted them time to December 30, 2019. The application for time extension or amendment to the ordinance came in, I believe, on that day. So we decided to process it, as it came in kind of on time, I guess. CARR SMITH: Anything else, Mike? VITOUSEK: I'll save it for when the applicant's up. CARR SMITH: Okay. Mark, did you have a question? Go ahead, Mark. VAN PERNIS: The Planning Director's Recommendation remains on the board here, so we can't see the Commissioners. I want to ask Christian to remove the, his presentation so we can see the Commissioners. Thank you. KAY: Okay. CARR SMITH: That was it? Okay. Perry, did I see your hand? KEALOHA: Yes, I wanted to ask him to go back to the map with the secondary road that you mentioned that was part of a requirement. KAY: Okay, give me one second, please. Yeah, so here's the site plan, and sorry it's a little hard to read, but this is the area here, which would connect to the adjacent parcel as an emergency access road. And that's required as Condition E of the subject Change of Zone Ordinance. Yeah, so it requires plans submitted for plan approval to reflect a minimum ten-foot wide emergency evacuation access route that extends from the project's easterly boundary, through the existing golf course and up through any point along Alii Drive. The emergency access route is required to be improved an unpaved road but reasonably compact enough to accommodate vehicles leaving the project site, and an access easement recorded prior to issuance of certificate of occupancy for the first residential unit within the project area. This emergency access is reflected on the site plan for the proposed 29-unit development in this general area. KEALOHA: Thank you. CARR SMITH: Good? Any other questions, Commissioners? Of staff? Faye, go ahead. YATES: Where exactly is this parcel? Is it across from Kona Country Club? KAY: Faye, good question. It is located makai of the Kona Country Club golf course, and mauka—here's Keauhou Bay right here—so mauka of the hotel here and the Keauhou Resort area. 4 EXHIBIT B CARR SMITH: We're not seeing your slides right now. KAY: Oh, sorry, my apologies. Let's do this again. Give me one second. Okay, can you see that now? CARR SMITH: Yes. KAY: All right. So again, here is the subject parcel outlined in blue. Here's the Kona Country Club golf course here, mauka of the subject property, and then we've got Keauhou Bay here on the left-hand side, with the hotel and the Keauhou Resort area. So this is kind of at the intersection of Alii Drive, Alii Highway, and the bypass. YATES: Oh, okay. It just seems so large, yet so small. Thank you. CARR SMITH: Any other questions of staff? No? Okay. Thank you, Christian, appreciate it. Let's move on to the applicant. Sid, can you hear me? FUKE: Yes, I can as soon as I unmute myself. CARR SMITH: All right, no problem. Please raise your right hand. And do you swear or affirm to tell the truth on this matter now before the Leeward Planning Commission? FUKE: I so affirm. CARR SMITH: Thank you. Please state your name and where you reside. FUKE: Good morning, Madam Chair, Members of the Commission. My name is Sidney Fuke. My residence is in Hilo, Hawaii. I'm a planning consultant assisting the landowner applicant with this time extension application. CARR SMITH: Thank you. Do you—you received the background and recommendation reports from staff? FUKE: Yes, we received it. I've had a chance to discuss it with the applicant, and he is in agreement with the, the proposed recommendation for the time extension. I will, however, like to just kind of note that at that point in time when the application was filed for the extension, which was at the end of last year, it was like a pre-COVID time. But, you know, leading up to the filing for the application, lot of the soft work was already done, you know, in terms of basic design, the archaeological clearances, so on and so forth. And so, notwithstanding the COVID situation, and assuming that the economy really was kind of ramping up, you know, at that point in time, then I think the five-year window would have been more than adequate because you've done, you know, a lot of the preliminary work needed to, to go with the design. My only concern right now is that no one really knows what the long-term economic impact of the COVID is going to have on let alone this, you know, the Island of Hawaii, let alone the whole county, the whole world. So, while we appreciate the generosity of the staff in providing a 5 EXHIBIT B five-year window, with no ability for administrative extension, we would want to at least post notice to this body that there is a possibility that maybe at the end of the fourth or fifth year they may come in for an extension, and the extension is going to be largely driven by the just overall economic, global economic situation. CARR SMITH: Understood. Okay. Any other comments from you, Mr. Fuke? FUKE: Uh, no. CARR SMITH: Okay. Commissioners, do you have any questions of the applicant? Mike? VITOUSEK: Yeah, well, Sid, I think you're absolutely right about the COVID pandemic and the fact that, you know, we're experiencing that now shows us what, you know, truly is meant by acts that are outside of people's control that are going to affect the outcome and compliance with these type of projectsa hundred percent agree that that's going to happen to a lot of projects. Now, that being said, looking back on the issues identified here for non-compliance, I don't see that being anywhere remotely near the same level of effect and even having the same adverse impact on the developer's ability to construct. Looking at the timing of it, the developer got an extension to complete the conditions in 2012, which expired in 2019. The archaeological work was completed in 2014, which would have given them five years to complete construction during a very strong economic period. So, to me, that, that non-compliance is not the result of things that were outside the control of the developer; they, they just didn't have the money to build the project they proposed. So I think that's one of the things that we have to consider in our role with the Leeward Planning Commission is that we have to identify what is and what isn't a legitimate reason for non-compliance. CARR SMITH: Good point, Mike. Your response? FUKE: Well, I think that if you look at this particular application, applicant, and looking at the myriad of conditions that were imposed way back when, it required a lot of redesign, a lot of archaeological things that needed to be done, not only the, having the completed archaeological inventory survey, but having prepare and getting the burial treatment plan approved, the mitigation plan, and, Mike, I'm sure that you're very aware of, you know, how laborious and time consuming that process, you know, took. VITOUSEK: Oh, yeah, absolutely FUKE: So admittedly, they did VITOUSEK: In this particular case FUKE: You know they CARR SMITH: One at a time. 6 EXHIBIT B FUKE: Yeah, what I was going to say, what I was going to say is that now that, you know, they had a lot of this so-called environmental cultural parameters firmly established, then the next step was to kind of work with the potential developer in coming up with a design that's kind of workable in that area. And the owner was working very closely at that point in time with the one of the representatives of, called Aman Resort, to create this high-end single-family residential project. And so it was really driven by that particular vision with the Aman representative to come up with this notion of single-family residential lots, no more than 29, so on and so forth. Then for some reason, I mean, perhaps I'm kind of like sharing information that I shouldn't be sharing but, you know, in as much as the question came up, there was some falling out between the developer and landowner, or like within the Aman Resort, you know, entities, such that they had to kind of like go back again, try to figure out like, well, what are we going to do? So financing is not necessarily just going to the bank and trying to get the necessary loan; it's like trying to find your market. And at that point in time in 2014, 2015, that market was the high-end southeast Asian market who wanted to purchase like a single-family residential lot in a so-called like in a resort environment. That fell through. And now, you know, you have the COVID situation. If you're going to do a conventional type of multiple-family residential project as, as the property is properly zoned, you're still going be constrained by all of the environmental cultural constraints, the other conditions of approval, including your water. And so, you know, getting back again to the water, they do have 60 water commitments, and they know that based on discussions with the Water Department, on an average if you have a single-family residence, that the usual consumption is two water meter. And that's the reason why the number of units was kind of like scaled back from just going gang-busting to 60 back to 29. I understand your concern, but I think that if you're a developer, you're looking not only financing but you're looking for someone that has the capacity, you're looking for a market; it does take time. And now with the COVID-19 pandemic situation, it becomes a little bit more precarious, and as a result, I had to add that caveat in the beginning. VITOUSEK: Right, you know, so as you mentioned, you know, I am super familiar with this project having worked on the approvals of it with State Historic Preservation Division, you know, the five separate mitigation document approvals that took place between 2012 and 2014, and then, you know, as a resident of the area, after the completion of it, driving by it every day and thinking, "Wow, we were in a big rush to, to complete all these mitigation requirements, but nothing's happened for the last six years." So, I think we take that excuse off the table, that the preservation planning wasn't done in time, because it was; it was done in 2014, giving adequate time. And then, you know, we look at the funding issue and, you know, when we're reviewing these things we see a lot of them now where zoning's expired, you know, and it's continued onto this kind of pattern of maintaining zoning, bumping it along, until we find somebody who's actually able to do something with it. And, I mean, to me, you know, these kind of project-related zoning changes where you've got an SMA tied to the zoning, these are kind of project-specific things, and if we're going to just kind of keep kicking it down the road until someone's able to finally pick up the ball and do something, then I think that's kind of contrary to the intention of our role. FUKE: Well, if I may just add to that, you know, this is a situation where it's not as though like other applicants, for example, who request for time extension that the world stood still in terms of like whether complying or not complying with any of those conditions. If you look at what 7 EXHIBIT B this landowner and this developer has done, he's done like a whole bunch of stuff: He's already addressed and completed the affordable housing requirement; he's already paid for the fair-share requirement; he's already done, you know, like, through SHPD's cooperation, a lot of these archaeological mitigation activities. And when you look at like other developers or other applications who've come in for requests, you ask yourself, have they come to this level? You know, it, to me, was really obvious that if it weren't for this peculiar situation of the possible developer falling out, this project would be a reality today; there would be no need for a time extension. But, you know, if you didn't have any sincerity and wanted to have the project go, you know, like, develop the project and basically spend it up, you wouldn't do all of these things; you would pass it on to the next buyer. So, that's my only, I guess, response to your question, Commissioner Vitousek. CARR SMITH: That's a good point, Sid. When I read through the background, I was actually impressed by the number of things that the developer had taken care of already. So, is there another financial partner in place, or no? FUKE: They were in discussion, but everything is fluid right now because of the COVID-19 issue, and the question becomes now whether the model that was originally thought of by, you know, with the Aman, you know, representatives, whether that model currently works today becomes very questionable. So CARR SMITH: Right. FUKE: you know, given the Multiple-Family zoning, they may want to do like triplexes or four-plexes or, you know, those kind of thing just to reduce the construction costs. But a lot is going to depend on what is going to be the ultimate market. CARR SMITH: Understood. Max, go ahead. NEWBERG: I just wanted to enter into this discussion. I do appreciate what the developer has done up to this point, and to make sure I'm on the same timeline as well, I believe after the archaeological approvals, the entryway into this development was at least developed; the egress off of the bypass road was made up the hill and things of that nature. I do appreciate that fact. I also appreciate how it's been downsized to 29 single-family plots, which seems a little bit more applicable looking at the archaeological demands. And also, realizing that not each development is apples to apples, I also see the developments in that near area, such as Holua Kai, moving forward with their development at that same timeline. Again, different area, different challenges, yet we went through a full construction cycle of good times and good, relatively good economic situation. To make that statement, I, I would like to somehow, moving forward, have a, a good way of approaching these, because every development is different, every challenge of every site is different. I'm not saying that I'm on the fence, but I do want to make sure that we're approaching all of these applicants in a fair manner as to extending these time extensions. I just wanted to make that statement. CARR SMITH: Thank you, Max. Perry, go ahead. 8 EXHIBIT B KEALOHA: I'd like to kind of echo what Max said, but add that I guess what I recognize is the good faith efforts to put in place. And, you know, I, I work within a great organization with land, and many times, even with best intentions, the development doesn't happen, and when you put in your good faith efforts to, to provide the entitlements that were required, and then we stop the process, reintroducing the process in the future will come with its own set with new entitlements and additional burdens. So, I think recognizing the effort that has been in place to comply with the County's needs, I think it's an important part when we examine whether or not to extend, as we are. CARR SMITH: Thank you. Good points. It seems as though we, we don't know what we're going to be looking at going forward in terms of repercussions from the virus, so, hard to know. Any further comments? Mike, go ahead. VITOUSEK: Yeah, I mean just a couple things. I think, like in this case where we are looking at a project that's gone through an upcycle in the market and basically missed that because of their own inaction, I think that, you know, it wouldn't be unreasonable for us to, if we do agree to extend this, to request the opportunity that in the event that it comes back for extension, it can be reconditioned, because it seems to me like it's kind of like a rolling target, so to speak, with this development, where, you know, they're initially coming in requesting 60 and then dropping it down to 29, and now it could go back to, you know, triplexes or something like that. So the idea is that, you know, if they don't meet this next extension that we're going to, we may grant them, should we grant them the additional extension, that at that point, you know, it can be re-examined and reconditioned, if necessary. The next thing is kind of more of a specific item for the conditioning that's in place on this, on this extension. The deletion of Conditions N and O, to me, I think that those Conditions should be left in place. I think that the idea behind deleting them is that they're completed, but the continued compliance with those conditions would kind of keep the County permitting married with the State Historic Preservation compliance, so the developer can't separate them. And basically, you know, if they become in violation of the mitigation plans or anything like that, then they would only be incompliance, only be outside of compliance with SHPD and not with their permitting, so then the County is losing some teeth on that. CARR SMITH: That's a good point. Mr. Fuke, do you have any comments on Item N and O? Conditions N and O? FUKE: I don't believe like the applicant would have any, any objections to their retention. And I believe that the staff had probably recommended their deletion, you know, because thinking that it would have been, it's an item that has been addressed. So, it's an item, those two conditions were not conditions that the applicant had requested that they be deleted, as such, if the commissioners believe that it should be reinstated, we would have no objections. CARR SMITH: Christian? KAY: I, I can confirm that that's the case. Again, it was not requested by the applicant; we just looked at the completion. We don't have any problem retaining them. There is the catch-all 9 EXHIBIT B condition that the, the applicant needs to follow all federal, state, and county laws, and those things. But I understand what you're saying. Keeping them in there, if we can have something else to point, too, should there, we have anything come up in the future, then that, it's not a problem for us. VITOUSEK: Yeah, and I think they can be edited a little bit just to indicate,particularly for Condition O, that instead of the condition being that they prepare these mitigation plans, the condition should be that they comply with the mitigation plans. CARR SMITH: Where is that in the paragraph? VITOUSEK: It says, "The appropriate Preservation Plan, Data Recovery Plan, [and] Monitoring Plan shall be prepared and submitted to the [State] Department of Land and Natural Resources," the second sentence. `Burial Treatment Plan shall be prepared and submitted to the Hawaii Island Burial Council for review and approval." So that's already been done but, you know, instead of indicating that it needs to be done, it should indicate that they should be complied with. KAY: Mike, would it make sense then, I guess we'd keep the identification on what the plans are and then have a sentence that basically says the applicant shall comply with all of the preceding plans, you know, all of the conditions of the preceding plans or something like that? Would that satisfy what you're talking about there? VITOUSEK: Yeah, that would be my recommendation, for sure. KAY: And that was for O. Did you have any other language for N or just keep it as it was? Because it was, it was completed prior and submitted prior plans, for final plan approval. So we can do the same thing VITOUSEK: Yeah, same thing. It's a, it says that the archaeological inventory survey should be prepared and submitted to get approval. I think that it should say that the archaeological inventory, that the commitments made in the archaeological inventory survey plan should be adhered to. KAY: Can we say, "shall?" Mike VITOUSEK: What was that? KAY: —can we say, "shall?" VITOUSEK: Yeah, mm-hmm. KAY: Okay, thank you. CARR SMITH: So do we need some clarity for Noriko's sake on this? How would N read, Mike? Go ahead. 10 EXHIBIT B VITOUSEK: An updated archaeological inventory surveyoh, hold on one second, let me try to work it out here. I would say that the commitments made—instead of"an updated"the commitments made in the Archaeological Inventory Survey approved by the Historic Preservation Division, or by the State Department Land and Natural Resources - Historic Preservation Division, shall be adhered to throughout the construction process, or development, or permit life, or whatever the case may be. CARR SMITH: Is that clear? Sid, are you okay with that? FUKE: - - - I'm muting myself. That's fine. CARR SMITH: Christian? KAY: Yeah, understood, and we're okay with that. CARR SMITH: Okay. Do we need any more clarity on O or are we simply replacing "prepared and submitted"to "shall be compliant?" KAY: Yeah, I mean, we can, we can look at, we can list the, the subsequent archaeological plans that took place, that grew out of the AIS, and essentially just make a statement that all of the, the requirements within these documents shall be complied with for the life of the permit, or something like that. But this is a Change of Zone, so through the life of the development or something to that effect. CARR SMITH: Are you okay with that, Sid? FUKE: - - - CARR - -CARR SMITH: Sid, is that acceptable to the applicant? FUKE: Yeah, in summary, like, what I understand is like, what Commissioner Vitousek is saying is totally understandable, because you can have like an approved AIS, or data recovery plan and if it never gets implemented—if it gets implemented, then that's fine but if it doesn't get implemented and say you're 20 years down the road, archaeological protocols may change and all that stuff, so do you want to necessarily be married to something that may no longer be applicable. And I think what—and correct me, if I'm wrong, Commissioner VitousekI think what the intent is, is basically to say that, you know, if you don't develop and at that point in time if there's a need to update it, you know, to address current archaeological protocols, then it has to be done and you have to adjust your plans accordingly. Is that what you're getting at? VITOUSEK: No, basically what I'm saying is that if, if the language in the conditioning applying to the permit is removed, then the County has no teeth to enforce the compliance with these mitigation plans. So basically, you've got burial treatment plans and preservation plans that have established buffers around the historic sites in the area. If we have that, you know, saying that compliance with those buffers is a condition of the County permit, then if the 11 EXHIBIT B developer proposes, or goes in and encroaches on one of the buffers, they would be in violation of SHPD, but they wouldn't necessarily be in violation of the issues of the permit. So basically, we just want to make sure that the permit document is sufficient to enforce the protection of these cultural resources. FUKE: Essentially to enable the County to enforce it. VITOUSEK: Yes. FUKE: And yeah, then that's fine. I totally understand. KEALOHA: So, Mike, would the appropriate language be, "maintain compliance with?" VITOUSEK: Yes. Yeah, I think "maintaining compliance with the provisions of the approved mitigation plans." KEALOHA: Correct, correct. That may be more clear. VITOUSEK: Yeah. CARR SMITH: Good. Thanks, you guys. Any other questions or concerns? [None.] Okay, then we'll move along VITOUSEK: Oh, one last question. CARR SMITH: Sure, go ahead. VITOUSEK: The SMA permit. When is the expiration on that? KAY: I don't have the permit in front of me, Mike, I apologize. I don't, I don't believe there was an expiration date. I think a lot of cases where you have an SMA in conjunction with the rezone, the SMA speaks to just complying with the conditions of the rezone. So, Jeff, I don't know if you've got that readily available, or Sid, I don't know if you could address that. FUKE: I can confirm what he said. That's true; the time was, the time for the SMA was piggybacked to the Change of Zone. VITOUSEK: Okay, so in this case, we're extending both the SMA and the rezoning ordinance. Is that right? In essence? KAY: If you'll give me a moment, I can, I can find that information. I think Jeff may have stepped away to look it up as well, but let me double check on that, and I'll give you the exact language. CARR SMITH: Thank you, Christian. 12 EXHIBIT B KAY: Yeah. FUKE: I don't have the SMA permit with me, but if memory serves me correctly, I think that it just said that it has to, it had to comply with all of the conditions of the Change of Zone Ordinance. So, in a sense it would be like, you know, two separate activities, I mean, there is kind of like an overlap. You're not dealing specifically with the SMA in at this point in time. There were conditions that were peculiar to the SMA, and so if there are any deviations from that, then obviously that would have to be addressed by the Commission through an amendment. CARR SMITH: Max? NEWBERG: So looking at Page 3, the background report, 14, it does mention the Special Management Area. Although reading through it, the second to the last sentence seems to read, "SMA USE Permit No. 09-000[0]34 to allow the development of a mix of 60 single- and multi[ple]-family residential units and related improvements." Should the language of that SMA mirror the request being amended to the 29 single-family units? KAY: Generally, generally, if the, the impact is going to be greater than what's allowed, then you would change the SMA. But in this case, because the SMA is approved for 60 units and they're downgrading it to 29, I think that we would consider that not necessary for amendment. I'm going to read the three conditions of approval of SMA 09-34: First is, "The applicant, its successors or assigns shall be responsible for complying with all stated conditions of approval"; second is, "The effective date of the SMA USE Permit shall be the effective date of accompanying Change of Zone 09-98 for this project"; and, "The applicant, its successors or assigns shall comply with all the conditions in the accompanying Change of Zone Ordinance." So in these cases we really tie the conditions of the SMA to follow the conditions of the Change of Zone, unless there's something particular that have to do with protection of certain resources in the SMA, if it's not identified in the Change of Zone. So yeah, in this case, there were only the three—and speaking about the effective, the start date of the SMA doesn't really give specific language about the kind of the end date, should the rezone ordinance lapse. NEWBERG: I appreciate the clarity. Thank you. VITOUSEK: So then, in essence, we are extending the SMA by extending the zoning ordinance. I recognize KAY: Yeah, so, it would follow that if you're amending the conditions of the Change of Zone Ordinance and the condition of approval, the SMA saying that they'll comply with all conditions in the Change of Zone Ordinance, so yes, you'll in essence be extending it. VITOUSEK: Okay. So, to me, that is an opportunity for the Leeward Planning Commission to stay involved with a project that is kind of going lags and doing different kinds of things where, you know, we're starting off at 60 units, going to 29 single-family, and now we're going to triplexes. And all these are changes in the project. So right now we're looking at the zoning, which is one thing, right? Zoning runs with the land. Zoning is the responsibility of the County Council. But the SMA is squarely the authority of the Leeward Planning Commission, and the 13 EXHIBIT B development of the SMA is our responsibility. So I think that this is an opportunity to put in some kind of language that says that the Leeward Planning Commission has the opportunity to review compliance with the SMA itself, and determine whether the, you know, the changes that are being proposed are consistent with the original approval. CARR SMITH: At what point would we do that? VITOUSEK: When would that be triggered? I think we could potentially put that in for the completion of the proposed extension period. CARR SMITH: Christian? KAY: Just, if I may, really when you're talking about compliance with the SMA, you're talking about compliance with stated conditions of approval, and those stated conditions of approval really tie back to the Change of Zone, which is under your purview as a recommending body. I might have to defer to Corporation Counsel to see. But also, what's on the agenda today is a time extension for the Change of Zone, and we haven't agendized the associated SMA. So I'm not sure that we can really get into amending language in the SMA necessarily. VITOUSEK: Right, it would be a, what I'm proposing would be a change in the condition of the Change of Zone. KAY: Okay. VITOUSEK: That would allow for the Leeward Planning Commission to review the status of the SMA after the completion of the next time extension period. KAY: If I may, and then maybe, actually, I'll defer to Jeff on this. He's got some more experience with these types of things. DARROW: I don't know if I have any experience on this, but this is one of those unique situations that the, previously, they tied the SMA conditions into the Change of Zone. That was our first question when we were reviewing this; what are the conditions in the SMA, and do they need to be amended? There was only three conditions, and basically it was tying it back into the Change of Zone. The Change of Zone does have a requirement to submit an annual progress report that they're required to let us know the status of conditions every year. What we can do is put in language in the APR condition that be forwarded to the Leeward Planning Commission for a review. That would, at least at that point the Commission can keep on track and aware of what's going on with that. CARR SMITH: Sorry, what is APR? DARROW: I'm sorry, Annual Progress Report. CARR SMITH: Oh, yeah, yeah, okay. 14 EXHIBIT B KAY: That is new Condition Q under the proposed conditions. DARROW: But as Christian mentioned, because of the fact that this particular request is not focused on a request for the SMA, we actually can't be looking at that. So we do have to look at the Change of Zone, which I, I don't, it would be tough to put in a condition in there that really is a condition that should be under the SMA. Although, like I said, we can try to bring it to where, you know, the, the annual progress report can come to the Commission for their review. KAY: Jeff, not to beat a dead horse here, but it seems a bit problematic. Mostly, annual progress reports are just an update on conditions of approval. Even if all - - - statement in there to be an update on conditions of approval of the SMA as well, you're just tying it right back to the ordinance. So, unless there's something specific in the SMA, which again approved 60, mix of 60 single- and multiple-family units, I'm not sure that it's really going to get you where you want to get. That's just a commentary. [At this time, 11:05 a.m., Commissioner Yates left the meeting and returned at 11:09 a.m.] CARR SMITH: Sid, go ahead. Sorry, I didn't see you. Go ahead. FUKE: Can you hear me now? CARR SMITH: Yes, go ahead. FUKE: Okay. I was going to kind of like, you know, restate what, you know, Jeff mentioned because that was my first thought, too. If you look at Condition Q, it requires a submittal of the annual progress report, and that progress report basically goes to the Planning Director. Okay, if Commissioner Vitousek or any of the other Commissioners wish to have a chance to review it, you know, review the annual progress report, you know, for compliance with the SMA conditions, then you know, it can be done. And that way, the Commissioners would be totally aware as far as where the developer is relative to on an annual basis. And we would have to address in the annual report each and every condition. And so, if that's the direction that the Commissioners would want to go, I would suggest that on Condition Q, you probably would just include like after the word Director, shall be submitted to the Planning Director and Planning, Leeward Planning Commission for review relative to compliance with SMA 09-00074, or something to that effect. CARR SMITH: Jeff. DARROW: Just,just a matter of housekeeping, Commissioner Faye has, needed to take a break, so she left us shortly, or she should be returning shortly. I agree, the difficulty, again, with that, Sid, is what Christian mentioned, and that is that there's only three conditions in the SMA. And the conditions are basically general standard conditions. Everything falls back on the Change of Zone. FUKE: But I sense that the Commissioners are interested in seeing the developer's compliance, or at least the project compliance with all of the different conditions of approval. So how else 15 EXHIBIT B would they be in a position to get an assessment of compliance without their being alerted to, you know, alerted to what the developer has or has not done through the APR? CARR SMITH: Mike. VITOUSEK: So, I mean, to me personally, my concern is not the compliance with the conditions of the SMA, but with the project that's begin proposed under the SMA permit. So, you know, the conditions of the permit approval are going to stay the same, but if the project that's being proposed under those conditions is changing, then I feel like the Commission should be reviewing those changes. CARR SMITH: Rather than what sounded like maybe an internal policy that if it's a lesser density, then they don't worry about it so much? Is that what you mean? VITOUSEK: Well CARR SMITH: Or the fact that it may change again? VITOUSEK: Basically, that this,just the fact that it may change again into triplexes from what's originally proposed, you know, and given the passage of time, you know, if we are, if we are looking at it in terms of another five-year extension, then you're looking at like twenty years from the original approval, and that's a significant amount of time to kind of change and grow in different directions under a permit, which is supposed to be for a specific set of plans in my understanding. So, if we're extending this zoning ordinance that basically carries the SMA with it, then I feel like we need to have the opportunity to review the substance of that SMA, which is the proposed construction plans. CARR SMITH: Christian. KAY: Yeah, I was just going to comment that APRs, or annual progress reports, do generally lay out the progress of whatever development there is, so, that information would be available to the Commission to review, if we changed the language in the condition to just say, "to the Planning Director and the Leeward Planning Commission." And then you have that as, distributed to you for review. CARR SMITH: Jeff. DARROW: So I, I mean, I think we all understand Mike's point, I mean Commissioner Vitousek. The reality is this project still is able to build 60 units; even though right now there's talk of 29 units, the reality is the zoning and the SMA still clearly allow for 60 units. So the concern is that down the line they legally could build a different project than what's being proposed right now. So a condition can be placed in the ordinance, excuse me, that said, "If the project expands beyond what was, what is being currently represented" I don't know if that condition is in there now, Christian, but if it isn't, that would be what may resolve this—"that they have to come back to the Commission and Council." 16 EXHIBIT B VITOUSEK: And, I mean, I completely support that, and I think that, you know, in addition to that, I would say that if the project hasn't reached substantial, or hasn't started, hasn't, you know, progressed past where it is now after the end of this extension period, the same thing would apply where they've got to come back for the SMA in addition to the zoning. DARROW: So that might be another part that we would place in there, that if an additional extension of time is needed, the applicant needs to bring back the SMA, as well as the Change of Zone. VITOUSEK: Yeah, that's what I'm asking for, yeah. DARROW: Okay, so that could be added to the last condition, Christian. KAY: - - - DARROW: - -DARROW: I'm sorry, you're muted. KAY: You've been trying to do that to me for years. [Laughter.] You have suggested language that seemed like a two-part condition, so I want to make sure that I captured it. DARROW: It looks like the last condition, Condition R, where it says, "If the applicant(s), successors, or assigns should require an additional extension of time, the Planning Department shall submit the request for,"I would place in something like "the amendment to the Change of Zone, as well as the SMA permit to the Commission and Council for appropriate action." So we don't find ourselves in the same situation where the SMA is just kind of being dragged along with the Change of Zone. VITOUSEK: Yeah. KAY: So the Planning Department shall submit the request— DARROW: equestDARROW: Of the amendment to KAY: Planning Commission for the SMA and to the Council for the Rezone Ordinance for appropriate action. DARROW: Well, they both go to the Commission, right? KAY: Correct. DARROW: So I would just say that the Planning Department will submit the applicant's request of an amendment to the Change of Zone and SMA permit to the Planning Commission and Council for appropriate action. 17 EXHIBIT B KAY: Just to be clear, in that case, if the applicant was coming in for a Change of Zone amendment request for more time, they wouldn't themselves be requesting an amendment to the SMA; we are requiring. DARROW: We're asking them at the same time to come in for an amendment to the SMA. KAY: Okay. DARROW: Yeah. And that way, the SMA can be reviewed. VITOUSEK: Yeah. KAY: I'm still unclear on language, Jeff. Can you repeat that please? I just want to make sure we have it on the record. DARROW: I'm just kind of coming up with this, but basically, it would be, "If the applicant(s), successors, or assigns should require an additional extension of time, the Planning Department shall submit the request for the amendment to the Change of Zone and the SMA permit to the Planning Commission and the County Council for appropriate action." So, I mean we know the process the Planning, the SMA would be approved by the Planning Commission, with the recommendation for the Change of Zone. We would most likely again make the effective date of the SMA the effective date of the Change of Zone to confirm that it is approved at Council. KAY: And if I can just double check with Corporation Counsel, J, does that language jive? YOSHIMOTO: I've heard the language the first time, but I didn't hear the clarification, so if it didn't change, I think that should be fine. VITOUSEK: Yeah. CARR SMITH: Anybody else have any comments about this? [None.] Okay, so I think that's agreed upon. Anything else before we move on? Sid, are you finished? FUKE: Yes, I am. Just,just to clarify again, so my understanding of the amendment that's being proposed right now is that in the event a rezoning time extension is required, then at that point in time the Department will mandate a corresponding amendment to the SMA permit, such that the Planning Commission would then be in a position to independently or collectively with the Planning Department impose appropriate conditions to the SMA, which may be more restrictive than what's contained in the Change of Zone Ordinance. And if that's the understanding, I, I totally understand, and we would have no objections. CARR SMITH: Thank you, Sid, for clarifying that. Good. Christian. KAY: I do just want to clarify. So we jumped from the administrative, or from the annual progress report condition, to the last condition. Did you still want to see the annual progress report as well? 18 EXHIBIT B CARR SMITH: Mike? VITOUSEK: No, I don't want to see that. I think that's staff, they got a handle on that. I think we want to look at the overall permit if non-compliance after five years. KAY: Okay, thank you. CARR SMITH: So we made adjustments to Conditions N and O, and we added to Condition R. Christian. KAY: I was just going to point out that we, we re-added Conditions N and O, and then made a change to Condition R, but because when we deleted those prior conditions and re-lettered everything, it's changed everything. So if it's okay with the Commission, I will just re-letter them as appropriate. CARR SMITH: Oh, okay. Yeah. So you're going to put back N and O with some amended language, re-letter everything, and then add to the last condition. KAY: Correct. CARR SMITH: Okay. Thank you. All right. We move along then. This would be—Mike. VITOUSEK: Is it okay to make a motion? CARR SMITH: I just wanted to make a comment that public testimony would fall in here, and we received none. I want to make sure from staff that there is no additional testimony on this agenda item. KAY: That's correct. Today we haven't received anything. CARR SMITH: Okay, very good. Yes, please, let's move toward action, go ahead, Mike. VITOUSEK: With that I move that a favorable recommendation be forwarded to the County Council on the applicant's request for a time extension to Condition D, time to complete the construction, of Ordinance No. 09-159, as amended, based on the Planning Director's recommendation, which shall be, I guess, which shall be adopted, as amended. CARR SMITH: Very good, thank you. Is there a second? KEALOHA: I will second. CARR SMITH: Perry. Sorry, I saw Max's hand, and I heard Perry's voice. I'm going with the voice just because. Okay, so Perry is second. So it's a motion moved by Commissioner Mike Vitousek, seconded by Commissioner Perry Kealoha, as stated. Any discussion? Seeing none, staff, could you proceed with roll call please? 19 EXHIBIT B KAY: Yes, thank you, Madam Chair. Commissioner Vitousek? VITOUSEK: Aye. KAY: Commissioner Kealoha? KEALOHA: Aye. KAY: Commissioner Newberg? NEWBERG: Aye. KAY: Commissioner Van Pernis? VAN PERNIS: Aye. KAY: Commissioner Yates? YATES: Aye. KAY: And Chair Carr Smith? CARR SMITH: Aye. KAY: Thank you, Madam Chair. Motion carries, six-nothing. CARR SMITH: Very good. Thank you, Sid. You'll be notified of the Commission's decision in writing. The discussion ended at 11:21 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 20 EXHIBIT B