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HomeMy WebLinkAbout2021-02-04 Windward Exh B Kirpal Meditation and Ecological Center SPP-20-000220 WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT FEBRUARY 4, 2021 A regularly advertised hearing on the application of KIRPAL MEDITATION AND ECOLOGICAL CENTER LLC (SPP 20-000220) was called to order at 9:18 a.m. via live stream meeting with Chairman John Replogle presiding. VIRTUAL ATTENDANCE(COMMISSIONERS): Gilbert Aguinaldo, Dean Au, Joseph Clarkson, Thomas Raffipiy, John Replogle. VIRTUAL ATTENDANCE(STAFF): Malia Hall (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Deputy Planning Director), John Mukai (Deputy Corporation Counsel for the Planning Department); Maija Jackson (Temporary Assignment Planning Program Manager), Jessica Andrews (Planner), Tracie Lee Camero (Planner), Rachelle Ley (Department Secretary), and Melissa Dacayanan-Salvador (Windward Planning Commission Secretary). APPLICANT: KIRPAL MEDITATION AND ECOLOGICAL CENTER, LLC (SPP 20-000220) Application for a Special Permit to legitimize the operation of a meditation and ecological center and retreat on 10 acres of land situated within the State Land Use Agricultural District. The subject property is located at 13-260 Pohoiki Road, approximately 0.5 miles west, or mauka, of the intersection with Kalapana-Kapoho Beach Road, Pohoiki, Puna, Hawaii, TMK: (3) 1-3- 008:005. Secretary's Note: "—"means that there were technical and/or internet difficulties which made the conversation inaudible. REPLOGLE: We are going to move on to the first agenda item which is Kirpal Meditation and Ecological Center(KMEC), as I just read before. We have a petition for Standing in a Contested Case Hearing on this item submitted by Margaret Keri Dickie Clark, which the Commission will consider first. Is the Petitioner present? (Petitioner waved to the Chair). Yes, I see her. Okay. Ms. Clark would you please raise your right hand so I can swear you in. Oh, yes, do you swear or affirm to tell the truth before the Planning Commission? DICKIE CLARK: On mute, said I do. REPLOGLE: I see you said I do but your voice is, you're muted. DICKIE CLARK: I beg your pardon? I do. REPLOGLE: Okay. I would also like to know is Mr. Ronald Kim, Leonard Sussman and Brandon Elbrecht also present? EXHIBIT B 1 KIM: Good morning Chairperson, yes, I am present along with Thomas Yeh, Leonard Sussman and Brandon Elbrecht. REPLOGLE: Okay, would you please raise your right hand as well as might as well knock it all down Mr. Kern would you raise your right hand as well. Do you affirm to tell the truth before the Planning Commission here today? KERN: Yes. KIM: Yes. YEH: Yes. SUSSMAN: Yes. ELBRECHT: Yes. REPLOGLE: Okay. Thank you, Keri forgiving me this moment to get this straighten out. Would you please proceed with your testimony? You are still muted I don't know if you can hear me but. DICKIE CLARK: I'm okay now. Thanks. REPLOGLE: Okay, I got you. DICKIE CLARK: I'd like to acknowledge and appreciate the time and attention that all you Committee members and extending to listen to this application. I'm unmuted, I am unmuted, please I have to speak now. I'm sorry about that. So, I have a number of points here I presume that you've read most of them and but just to reiterate KMEC has been in existence by the way I'm his immediate uphill neighbor. Has been in existence since about two thousand and eight (2008) as a private retreat and since February two thousand and ten (20 10) it been open to the public. I want to make it clear that I have at no time reported Leonard to the officials, to any officials about his illegal operation of his business which has been as I said since at least 2008 or 2010 when it was more open to the public. The present application for a Special Use permit has been precipitated by a violation of quarantine rules during the COVID-Nineteen (19)pandemic. Until this violation came to the attention of the airport Department of Health(DOH)personnel KMEC had made no attempt to limit access to the retreat center. So, he was operating during the pandemic and prior without permission. So, during his operation he has caused excessive noise and disruption in the neighborhood. Parcels of land as far as seven (7) lots up, five (5) acres each lot have complained about the drumming and parry noises. EXHIBIT B 2 HALL: Sorry, excuse me Ms. Dickie Clark for the interruption, point of order. Today, we are not hearing the application, today we are hearing why Ms. Dickie Clark has standing so that should be the focus of this hearing at this point. DICKIE CLARK: Yeah, thank you for clarifying, I was confused about that and I've been trying to find out what the criteria for my standing might be and I have been totally unable to do that. So, if anybody can enlighten me, I would appreciate that. REPLOGLE: May I read that to you? DICKIE CLARK: Please. REPLOGLE: Okay. Assuming that the petition is in order, Rule 4-6 states that standing shall be granted if the following criteria can be met. Number one (1) his or her interest is clearly distinguishable from that of the general public; or number two (2) government agencies whose jurisdiction includes the land involved in the subject request; or number three (3) that they have some property interest in the land or lawfully reside on the land; or number four(4)that even though they do not have an interest different than the public generally, that the proposed action will cause them actual or threatened injury in fact; or number five (5)the persons who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to Seventeen-Seventy Eight(1778), who practice those rights which are customarily and traditionally exercised for subsistence, cultural or religious purposes. Is that good Ms. Dickie? You are muted again. I'm sorry Ms. Dickie but you're muted again. DICKIE CLARK: You should be able to hear me now? REPLOGLE: Yes, ma'am. DICKIE CLARK: I don't know it seems that my thing operates disconnects me when I'm not talking. REPLOGLE: Okay. DICKIE CLARK: Pardon the interruption. Yeah, I'm familiar with that, that first part of the petition for standing in a contested case hearing I was not familiar with the extension of that other than the first question that says in your interest in this matter clearly distinguishable from the general public. I do lawfully reside on that property it's my property and I've done so since Two-Thousand and Two (2002) I believe and because I don't have the rest of the information in front of me obviously, I'm not Hawaiian and I don't have any standing in that respect. But could you just repeat the part, the first part about— REPLOGLE: Yes, ma'am. DICKIE CLARK: —that after lawfully residing I told you, what was is the other part? EXHIBIT B 3 REPLOGLE: Are your interest clearly distinguishable from the general public or government agencies whose jurisdiction includes the land involved. So, are you separate from all that and that they have some property interest in the land or lawfully you don't live on his land but. — DICKIE CLARK: No, I live on my land. REPLOGLE: — even though they do not have an interest different from the public generally, the proposed action will cause them this may be where you come in will cause them actual or threatened injury in fact. DICKIE CLARK: It depends on how you define injury doesn't it? REPLOGLE: If they had an open outhouse right on your boundary that could cause you injury. DICKIE CLARK: Well to my knowledge they have a cesspool of some sort on the setback on our mutual setback, 2 in fact. In addition to other buildings in my setback or in our setback and his actually encroached another building number twenty-one (21) actually encroaches on my property. REPLOGLE: Okay, that's what we're talking about. DICKIE CLARK: In addition, there is noise that comes from his operation of his business shall we say. REPLOGLE: Okay. CLARKSON: Mr. Chair? REPLOGLE: You're on the right track ma'am, if there is anything else let us know and then will continue. CLARKSON: Mr. Chair? REPLOGLE: Yes, excuse me Commissioner Clarkson? CLARKSON: Yes, I just have a question for Counsel, Ms. Hall? HALL: Yes. CLARKSON: I just wanted to ask whether being an immediate neighbor of an Applicant and a contiguous parcel is almost always by definition an interest is clearly distinguishable that of the general public? HALL: I think that's to the discretion of the Commission but, I will say that in many prior cases that has been what the Commission has found but, again it's up to you guys if you feel like that separates her from the general public or not and allows her to have standing. EXHIBIT B 4 CLARKSON: Thank you. HALL: Yeah. AU: Mr. Chair, I have a question. REPLOGLE: Yes, Mr. Au. AU: Ms. Hall is it appropriate for us — REPLOGLE: Excuse me, excuse me I'm sorry we haven't finished with the testifier yet unless you have a question for Ms. Hall? AU: Yes, I have a question for Ms. Hall. REPLOGLE: Okay, I'm sorry, continue. AU: I just want to know Malia is when can we ask, when would it be appropriate to ask questions to the Petitioner? REPLOGLE: When she's done. HALL: Well, we can go through actually everybody's position first and then we will come back to questions and then you can ask everyone questions even if you have questions for the application so, yep that would be the right time. REPLOGLE: Okay. DICKIE CLARK: So, I have a question, its Keri here. REPLOGLE: Yes. DICKIE CLARK: I was under the impression that this morning's meeting was to establish my standing? REPLOGLE: That's what we are doing right now. If we decide that you are in fact you are a Petitioner with a contested case can move forward, then we are not going to hear the rest of Kirpal Meditation Center hearing that would be postponed. So, I would like you to finish saying what you were saying and then we the Commission will determine your standing and when we say yes or no that will decide how we move forward in the present agenda. Does that explain it? DICKIE CLARK: Sorry, I was just distracted I just got a private message from Rachelle saying she'd been the one muting me so that clarifies that confusion. REPLOGLE: Okay. EXHIBIT B 5 DICKIE CLARK: So far just to clarify my position you've asked me about whether I live on the property that I own right next door to KMEC sorry I'm so accustomed to referring to him as Leonard. REPLOGLE: You may do that we know who he is. DICKIE CLARK: Yeah, okay thank you. Can you just hold on one moment please somebody is asking me a question. Okay, so, you've asked me about how I might be additionally affected by his activities and— REPLOGLE: Yes, what we are attempting to determine here is if you have an official interest or a cause to contest this case and many of the things you said thus far imply that and I would like you to be able to get to end of what you want to say so we can, the Commission can determine your standing and then at that point we will move forward. So, basically what we are trying to determine is if you have a reason to be in this position you are in versus say someone from say Pakistan just walked in and said — HALL: Chair, sorry— REPLOGLE: Yes. HALL: — John. REPLOGLE: Please. HALL: I believe she is getting there if you just let her finish please. REPLOGLE: Okay, thank you. HALL: Thank you Chair. REPLOGLE: Excuse me,please continue. DICKIE CLARK: Thank you everybody. I have to admit to being extremely nervous at the moment so my brain is not working as best as it might, and I also appreciate the question from was it Joe about wasn't my standing almost automatic because I am the immediate neighbor but to enlarge upon that I'll expand upon that he has built let me look at my map here. He has got shed number seven (7), shed number nine (9), building number twenty-two (22) and number 21 are all in the setback between the three (3) of our properties and building number 21 actually encroaches over my property line. So, in addition to not complying with any County rules and regulations about whether the structures are permitted or whether they are built to code. There is the proper situation where his got some septic systems in operation which are not permitted and are not up to standard in that setback and all over the rest of the property as well, but we will stick with my section for the moment. The fact is that while he is encroaching on my property that's with building number 21, I presume you folks got access to that map, do you? EXHIBIT B 6 REPLOGLE: Yes. DICKIE CLARK: It looks like this it's a hand-drawn and extremely inaccurate and incomplete map of what his business is currently I'm sad to say. Anyways, the thing with number 21 building number 21 actually encroaching on my property while it affects me tremendously is that until that is removed, I'm not in a position to sell my property so my property value has dropped tremendously. I understand that a Title Company is unlikely to give any mortgage to anybody while there is this encroachment on my property. So, that is something that is a particular concern to me in addition to all my other concerns about how he runs his business and how he has developed his business. REPLOGLE: Okay, anything further? DICKIE CLARK: I don't know, does anybody have any questions for me what I am doing so far? REPLOGLE: Okay, I will ask the Commissioners do you have any questions of Ms. Clark? DICKIE CLARK: You can call me Keri. REPLOGLE: Okay, Keri thank you. AU: Mr. Chair,point of order. Commissioner Au. REPLOGLE: Commissioner Au, go ahead. AU: Our Counsel said that we can ask questions after we hear from the Planning Director and the landowner's, KMEC's attorneys so I do have questions, but I would like to hear everybody first. So,just point of order. REPLOGLE: Okay. Thank you for that point of order. Well, Mr. Kim will you be representing the establishment? KIM: Good morning Chairperson, I will be representing the establishment but also Thomas Yeh will as well and he will be handling this portion of the hearing that addresses the petition for the contested case so, I'll turn the floor over to Mr. Yeh. REPLOGLE: Thank you. YEH: Good morning everyone can you see and hear me? SOME OF THE VIRTUAL ATTENDEES: Acknowledged by nodding, giving a thumbs up and waved. EXHIBIT B 7 YEH: Thank you so far Mr. Chair and members of the Commission good morning. Thank you for allowing us this opportunity to discuss the standing issue initiative. I just wanted to say when I heard the issues that have been raised by Keri because I've met her before communicated with her on several occasions. They all sound to me like they are things that are in fact resolvable by the proposed conditions and the Planning Department has suggested that the Planning Commission adopt. Number 1 removing or fixing setbacks or the encroachment within the setback area. The encroachment that Ms. Keri talks about onto her side has been surveyed at about 2 feet one corner of the building. It is kind of interesting to me too that she says she's been affected but she's also acknowledged it since the time KMEC has been operating and she's never made a complaint to the Planning Department. Mr. Sussman has always been there "—". We attempted about a year and a half ago — JACKSON: Mr. Yeh? YEH: Yes. JACKSON: You are fading in and out on the audio, is there a way you can get a little bit closer to the audio. YEH: Sure, thank you and I don't know if you folks caught everything that I said so far. But these are things that we attempted to work out with Keri a couple of years ago. We let her know that this hearing was coming up with no response and so I'm going just to suggest and reach out to Keri again to say that number one the Planning Commission has made recommending, the Planning Department has made recommendations to deal with all the issues that she has raised. There are other areas that we've suggested that we can pursue so that would be the first thing I would ask for her to consider first let's discuss before the contested case hearings is even heard . But responding to the, I beg your pardon? But discuss the issues that she's raised. Number one she doesn't live on the property next door. Mr. Lloyd does actually in an unpermitted structure that's is not permitted as a dwelling. We are not here to throw stones at her but, I just want to emphasize she does not live on the property next door. As far as noise and "—" REPLOGLE: We can't hear you Mr. Kim or Yeh. Sorry, yeah wrong name. KIM: I'm starting to see if I can turn the microphone level up. REPLOGLE: Okay. LEY: Hi Ron, this is Rachelle. KIM: Hi Rachelle. LEY: If it keeps doing this maybe turn off your camera your bandwidth maybe low. EXHIBIT B 8 KIM: Oh, okay, okay, and then also kind of weird but let me open the door too. DICKIE CLARK: Perhaps using ear buds might help as well. YEH: Is this better. REPLOGLE: Seems to be. YEH: I'm not sure where you lost me frankly but. REPLOGLE: Just at the end. YEH: Okay, alright. So, one can take a look at standing issues and say they are very loosely regarded but when we look at where Ms. Keri is, she is not living there on the property. Yes, she owns the property itself. She hasn't complained to the Planning Department all these years she says KMEC has been operating, so has she really been injured? Her assertion that she can't sell her property, incorrect right there may be an encroachment we suggested either an encroachment agreement or cut of the end of the 2 feet that's encroaching onto the property. The Planning Commission conditions say that that has to be dealt with prior to operation. So, frankly all of the things that she's raised are covered by the Planning Department recommendations which we think area all resolvable. On the record right now I would ask Keri, let's talk, if there's a way that we can have your petition withdrawn. You would save the Commission, the County, and everyone a lot of time, unnecessary time, and expense. The Planning Department has recommended a number of conditions that deal with permitting, wastewater, everything that you've asked or had concerns about so, that would be my real suggestion in terms of moving forward with a contested case petition. I don't think "—" and I'll leave it at that. I hope "—". REPLOGLE: Thank you. Any questions from the Commissioners for Mr. Yeh. AU: Mr. Chair, Commissioner Au. REPLOGLE: Okay Mr. Au. AU: So, I have questions, but I want to hear from the Planning Director first. Thank you. REPLOGLE: Okay, Mr. Director you are on. No can hear. There we go. Go for it. Have you talked? No. JACKSON: You are still on mute Zendo or there's some problem. REPLOGLE: Should I move on? JACKSON: Let's — EXHIBIT B 9 HALL: No John let them figure out the audio issues because we need to hear what the Director's position is. REPLOGLE: I agree. HALL: You can take a five (5) minute recess if the Commission so desires. REPLOGLE: Would you like to have a 5-minute recess Commission? Also, those in favor say, aye? The majority has it, take a 5-minute breather while the Mr. Planning Director gets plugged in. Thank you. Chairman Replogle called a recess at 9:46 a.m., and the meeting reconvened at 9:51 a.m. REPLOGLE: Okay, Mr. Planning Commissioner would you please give your testimony. KERN: Thank you Chair Mr. Planning Commissioner was a former life for me but Planning Director officially as of yesterday afternoon. So, very grateful. Aloha everyone. REPLOGLE: Please forgive me, I didn't mean to lower your status to Commissioner. KERN: We're not going to go there we all got to work together. So — REPLOGLE: Forgive me. KERN: —no worries. So, philosophically I've always been a person that tries to work with neighbors and hopefully neighbors can work with each other in a kind of respectful manner. Though as far as standing goes, Planning Department has no position on standing. REPLOGLE: Thank you very much. KERN: Thank you. REPLOGLE: Okay, I believe now we can move to questions Mr. Au. AU: Thank you Mr. Chair. So, I guess my first question is to you Ms. Keri, thank you very much for coming and going through this process and going through this ordeal. Can you guys all hear me okay, I'm also having problems with my speaker too. REPLOGLE: Yes. AU: Ms. Keri, you mentioned that a few of KMEC's buildings, one of them building 21 is encroaching on your property and the fact that you knew that, and Mr. Yeh mentioned that they've tried to reach out to you to try to mitigate that with no response. I guess can you just talk about that whole ordeal with, elaborate on the encroached building which is 2 feet on your property and how you are feeling and dealing with that with KMEC or with KMEC's representatives Mr. Yeh. EXHIBIT B 10 DICKIE CLARK: Certainly, I have a question first though. I'm still a little bit confused as to how this particular portion refers to or sorry what the word is applies to whether I have standing or not. REPLOGLE: Malia, would you like to answer that? HALL: Okay, so you're wondering how his question applies or when you say portion, I just need clarity on what you mean by portion. DICKIE CLARK: Yeah, can you hear me okay? HALL: Yes. DICKIE CLARK: Okay, so, thank you for that. I'm trying to clarify because I understand that the Committee has to determine my standing before we get into sort of kind of the nitty-gritty of the situation. So, I'm confused as to why it is that I'm now having to sort of go into the details of what's going on and answer well I don't even know if I'm in any position to answer we're discussing Dean's question here right. HALL: Yes. I can clarify that for you. So, now the questions from the Commissioners would be based on whether they believe you have standing so whether your interest is distinguished from the general public so, I believe that is what Commissioner Au's question is asking is to kind of clarify the encroachment and how that distinguishes your interest from the general public. DICKIE CLARK: Okay, but then we're responding also to Leonard Sussman's lawyers questioning of me or statements about me. HALL: You are allowed to respond to those yes, that is your choice, you don't have to, it really depends on, they have a right to make a statement and that basically what it was, and they included a question for you but that doesn't mean that you are obligated to answer. DICKIE CLARK: Okay, so. AU: Ms. Keri let me rephrase my question then I apologize for putting you on the spot and I do not want to go into the discussion of the actual application for KMEC. So, basically my goal for my question is I'll just ask the question I just want to know to make sure that there is a structure and both parties are aware that there is a KMEC structure a portion of that structure on your property. That's basically what my question is it's just going back and forth, and I just want to verify that so we can squash that question and we don't have to ask about building 21 anymore. So, this is more for the other Commissioners too because sometimes we can ramble on and I just want to make sure that there is a structure on your property which belongs to KMEC. I just want to hear from you because Mr. Yeh did confirm that you did say that but I'm just asking you the question again to confirm that. So, I can make my decision to see if you have a standing. EXHIBIT B 11 DICKIE CLARK: Thank you, I appreciate that clarification. Yes, there very much is building number 21 is not only in the setback and it encroaches on my property. It came to my awareness of about 3 to 4 years ago when I was approached by an individual that Leonard had asked to talk to me about it and to see if we could make some kind of a plan. So, in fact I have been in communication with Leonard in a number of occasions, but only once have I had any dealings with his lawyer Yeh face to face. The reason that I didn't respond to the proposal that he sent to me was there was or maybe I should answer the other things about why I haven't made any prior objections to his buildings and his business. As Mr. Yeh suggested I too am a firm belief that it is really important to have good relations with your neighbor. It didn't seem to me it was the best interest of anybody for me to report him to the County for any of his digressions or misdemeanors and it wasn't until this whole thing,until he was reported by somebody else and it came to the entire County's attention not only back in 2000 and this last year with the quarantine thing. But also prior to that there had been a complaint about him running an illegal business with unpermitted structures and that wasn't me either. In fact, I didn't know about that until this whole issue came up with you through the Planning Department. AU: Okay, thank you. DICKIE CLARK: I say I didn't do it because I think it's important to have good relationships with neighbors and the proposition that Yeh came up with well it didn't take me into account at all in my opinion and I was advised by a Counsel not to respond to him because it wasn't to my benefit. AU: Okay, thank you Ms. Keri you answered my question and I just have another follow up question just for the record. So, I have a question for Mr. Yeh. So, Mr. Yeh just want to confirm that structure number 21 is encroaching indeed 2 feet on Ms. Keri's property. YEH: Yes, Commissioner Au that is correct about 2 feet there is a roofline corner in one section it is a very limited corner of a roofline that encroaches. AU: So, you are telling me that it's not the structure it's just the overhang is on her property and it's not the structure. So, when you say 2 feet, 2 feet on the overhang not the building line. YEH: That's my understanding correct. If there is a corner of a portion of the structure possibly. We had a couple surveys done actually that there's been a couple differences of opinion but approximately 2 feet. CLARKSON: I have a question. REPLOGLE: One moment. AU: Sorry Mr. Chair. REPLOGLE: Okay, Mr. Au had the floor. EXHIBIT B 12 AU: Okay, thank you Mr. Chair. So, my next question this is appropriate Malia can I ask either staff or Zendo a question? This is still on the same train of thought so I kind of want to follow and finish this before Joe goes on and ask his question. Can I ask Zendo a particular question about the building code and if an overhang if the overhang of a roof actually applies to encroachment and answer if you can or if you cannot I'm not sure Ms. Hall if you can answer that question. HALL: I think if you are asking him about the Zoning Code that is appropriate but if you are asking about the Building Code that would probably be Department of Public Works (DPW). KERN: Well, Zoning Code Chapter 25 would be relevant to this question so the wall line would have to be within the setback, there is allowable projection for roof overhangs and decks and whatnot depending on the size of the setbacks so if its Ag its usually twenty (20) foot side setbacks and the overhang or allowable projection would be six (6) feet. Now, this is over a property line itself that is a different story that's a property line encroachment within the setback. AU: Okay, thank you Mr. Kern you've answered my question so thank you. KERN: Thank you. REPLOGLE: Commissioner Clarkson? CLARKSON: Yes, I just have 2 questions. One is for the petitioner for standing Keri if your standing is granted our rules require that you immediately go into mediation with the Applicant so the first item on the agenda if you were to be granted standing would be to get together with the Applicant and the Mediator. I'm just wondering whether you'll be willing to do that first before continuing your petition for standing and I have a question also I don't know let me wait to hear from the petitioner before I ask my second question. REPLOGLE: Ms. Keri? DICKIE CLARK: Commissioner Joe I don't know your last name, but could you just repeat the rules and regulations about whether it was mandatory for me to go into mediation or not? CLARKSON: Yes, according to the Planning Commission Rules 4-6 (i) all parties to a contested case proceeding shall participate, in good faith, in one mediation conference, the length of which shall be determined by the mediator. The mediation conference shall be held within thirty days of the granting of an intervention by the Commission. So, Mr. Yeh had asked for in essence a mediation our rules require you to go into mediation if you were to be granted standing. One of my follow up questions was going to be to Ms. Hall about the legal aspects of whether you're agreeing to go into mediation "—" applicant prior to being granted standing would affect her petition for standing your petition for standing. So, there's a lot at issue but I believe Mr. Yeh was correct this is a very long complicated and for some people an expensive process to go through a contested case hearing. I just want to make sure that it's really necessary. JACKSON: You are on mute again Keri. EXHIBIT B 13 DICKIE CLARK: I swear I pushed it—" I'm totally willing to go to mediation and do understand this is very costly but I also wanted instead of my defense of pursuing this I want to point out that again that Leonard Sussman, KMEC has been operating his business illegally for over ten (10) years and he hasn't during that period of time attempted to comply with any of the County's regulations until just recently when he got exposed perhaps is the word I'm not sure if that's the right word by somebody else and the authorities were drawn in. If somebody had done something about that complaint before the 2018 lava flow, they would have seen the degree to which he has expanded his business and has been running it. I mean any of you have had the opportunity to look at his website its beautiful it really is I cannot contest that at all. His got a lovely little sweet place there however, he is been operating completely against or with flagrant, disregard with the law all these years and is only responding and reacting to because his been called on by authorities. So, yes just to answer your question I certainly would be interested in mediation and presume that your last question I'd like to hear the answer of because obviously that has some impact on me your question to the Counsel. Thank you. CLARKSON: Malia can you clarify whether a continuation for a pre-standing hearing or an additional hearing on standing would affect her status? HALL: I honestly, I don't see why there would be we would postpone to postpone I guess is what I'm saying because technically if they are required to go to mediation and the mediation works out then the petition would be withdrawn anyways. So, it's kind of the chicken and egg situation where they move forward and if they can't agree then basically, we are ready to go and if they can then its moot. So, that would be — REPLOGLE: I would totally concur with that. CLARKSON: Thank you Malia, I have one other question, I have a separate question for the Director. The Planning Department has taken no position on the request for standing, I just wanted to make sure that our Director in his past life hadn't had any professional interaction with any of the parties to the application. KERN: Yeah, I have nothing excuse me this was never a client we have a firewall in place within the department so no, never a client, no conflict. CLARKSON: Thank you. REPLOGLE: Okay, if I'm allowed, I'd like to make a statement in regard to whether Ms. Keri should have standing or not. From what I've read and— HALL: Excuse me, point of order. REPLOGLE: Yes, ma'am. HALL: We should have a motion before discussions are had so if you are going to start to deliberate — EXHIBIT B 14 REPLOGLE: Oh, okay. HALL: —discussion we should have a motion. YEH: Mr. Chair, Mr. Chair. Hello? REPLOGLE: Yes, yes Mr. Yeh. YEH: May I briefly weigh in before you have your discussion because I heard some things that I didn't want to respond to briefly. REPLOGLE: Go ahead sir. YEH: Thank you, thank you. First of all, it is not correct that this application came to be just because there had been one complaint, not because of quarantine but one of a disgruntled employee had made a complaint. But we have been working with Mr. Sussman for a few years now putting together the background information for the report and the application. You know we attempted to work with I think was in May of 2020 that we met with Keri to talk about possible resolutions of this matter. She indicated that she would get back to me with a response and never did. We reached out to her before we filed this application to let her know that we were going to be doing this even after the petition for a contested case hearing was filed, we reached out to her again saying can we talk and deal with these issues. I haven't yet heard from Ms. Keri that she wants this whole operation to stop. So, I really think it comes down to the current conditions that can be implemented discussed with her in conjunction with a plan with the Planning Department to come up with a workable solution. So, I did want to say we are all in favor of going to mediation to be able to discuss these things whether or not the Planning Commission decides to hold the contested case hearing and grant her standing. So, I just wanted to emphasize to the members of the Commission that that's our position we've always been willing to talk. So, thank you. REPLOGLE: Thank you. Mr. Clarkson? CLARKSON: Yes, I'd like to make a motion in this matter. REPLOGLE: Okay. CLARKSON: I move that the petition be granted based on the record the petitioner has established that her interest is clearly distinguishable from that of the general public. REPLOGLE: Excuse me don't we have to first end this testimony and then we do what you are talking about? I would take a motion to close — JACKSON: Chair Replogle? EXHIBIT B 15 HALL: We already closed public testimony so, no further motion except for a motion for action. REPLOGLE: Okay. Let's would somebody make a motion for action? CLARKSON: Would you like me to repeat my motion? REPLOGLE: Yes, please. CLARKSON: I move that the petition be granted this petition for standing based on the record petitioner has established that her interest is clearly distinguishable from that of the general public and — REPLOGLE: Second, oh. CLARKSON: Okay, I'll speak to my motion if there's a second. REPLOGLE: Is there a second? RAFFIPIY: I'll second the motion. REPLOGLE: Thank you. Okay, any discussion on the motion? CLARKSON: Yes, I'd like to just say that based on — REPLOGLE: Mr. Clarkson? CLARKSON: —based on our Counsel's consideration of the status of a petition for standing that it's better to go ahead and grant the standing and have the parties go into mediation and then take it from there. Rather than try and work out the legalities re-establishing a petition after a non-contested case mediation if you get my grip. Anyway. REPLOGLE: Okay, any other comments from the Commissioners? AU: Mr. Chair? REPLOGLE: Yes, Mr. Au. AU: I just want to make a comment and I guess part of the discussion is for us fellow Commissioners part of what we want to do is we want to work with the community, we want the applicants, we want everybody to work together like our new Planning Director had said. So, I'm hopeful going into this mediation that the parties are going to come into an agreement and what the best decision is for everybody. So, I just want to repeat what Commissioner Clarkson is saying so thank you. REPLOGLE: Anybody else? Yes, Mr. Aguinaldo. EXHIBIT B 16 AGUINALDO: Hi, third on that as well with Commissioner Joe, Commissioner Au indicated reason being said is that I live there and I'm familiar where that is by the mango grove and when having neighbors, the Hawaii thing is you don't want haka.ka, haka.ka meaning issues, problems with your neighbors. Going to mediation is a great solution to find common ground for everyone, your neighbors and we do respect as well they are both neighbors, they need to find a common ground solution first before moving on the next step. I feel that as a resident in the Puna area even nearby there it is not good, it is not good vibes. Yes, it's a great thing, it's great what they are trying to do on their property is positive and is great but, I agree with the other 2 Commissioners. REPLOGLE: Thank you. Any other comment? RAFFIPIY: Mr. Chair, I have a question. REPLOGLE: Yes, Mr. Raffipiy. RAFFIPIY: To the staff, if you look at that plot plan, that Exhibit B plot plan where it shows building 21 is encroached over a line. What is that? It looks like a is that a pathway, a roadway, or is that a boundary between the 2 properties? If you look at the plot plan — JACKSON: Chair Raffipiy, it looks like it's the boundary between the 2 properties and then just to the left of that is a measurement measuring that length of the property line. RAFFIPIY: Okay, I see thank you very much. Thank you Maija. REPLOGLE: Okay. My final view or view on it is I agree with my fellow Commissioners that standing should be granted I think Ms. Keri has been a good neighbor up until now and that Mr. Yeh and they have sincerely attempted to solve this prior. But I believe Ms. Keri needs official standing going into mediation so a lot of things are going to be corrected and I totally believe the mediation will work out and we will carry on it won't be a bad court case. Anyway, I'll take a motion to grant standing or deny. JACKSON: Chair Replogle, I'm going ahead and take the roll call vote. REPLOGLE: Oh, okay. What are we voting, oh okay. JACKSON: The motion before you is to grant standing to the petitioner due to meeting criteria number one. Commissioner Clarkson? Aye? CLARKSON: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: Commissioner Au? EXHIBIT B 17 AU: Aye. JACKSON: Commissioner Aguinaldo? AGUINALDO: Aye. JACKSON: And Chair Replogle? REPLOGLE: Aye. JACKSON: Okay, the motion carries five-zero (5-0). So, procedurally I would just like to explain what happens next. REPLOGLE: Please go ahead. JACKSON: So, I will reach out to the parties very soon within the next week most likely to arrange for a mediation session and the Planning Department will pay for that mediation. The parties need to come to agreement on who they select to be the mediator and I will send you a list of potential mediators. If during mediation the parties come to agreement, then the petition can be withdrawn, and the application can move forward for decision before the Planning Commission. If the parties do not come to agreement during mediation, then the contested case hearing would be scheduled. So, at this time, in order to plan for the possibility that mediation is not successful, it would be helpful for the Commission to decide whether if they want to hear the contested case hearing or whether they want to designate a member of the Commission as hearings officer or whether they would like to hire a hearings officer to conduct the contested case hearing. REPLOGLE: Okay. Commissioners I'll take your feedback on that question. AU: Chair, I have a— REPLOGLE: Mr. Au. AU: So, with the current financial situation that the entire world is in I think we should, I recommend to you fellow Commissioners that one of us on this Commission if we get to that point be that hearings officer. Again, hopefully we don't get to that point but if we do, we will save the County a little money unfortunately that individual is going to have to put in their time and for the record I do not want to be that person. I want to be the first person to say that so, thank you. REPLOGLE: Thank you. Any other comments? I agree with Commissioner Au that we should do it ourselves. Mr. Clarkson? EXHIBIT B 18 CLARKSON: I just had a question for Malia, can we temporarily move that the Commission as a whole conduct the contested case hearing and then if the mediation fails hire a hearings officer to substitute for the Commission or do, we have to decide irrevocably right now who is going to be the hearings officer who's going to hear the contested case? HALL: Yes, that would be the best, that would also allow the Applicant and the Petitioner to know who will be hearing so, if it is the entire Commission or just a Commissioner versus a hearing officer that should be decided now. REPLOGLE: Thank you. CLARKSON: Thank you. REPLOGLE: Okay, I'll entertain a motion of one of those 3 choices gentlemen? One of us, all of us excuse me or a hired hearing officer? RAFFIPIY: Mr. Chair, I'd like to make a motion? REPLOGLE: Mr. Raffipiy? RAFFIPIY: I'd like to make a motion that one of us be the hearing officer appointed as the hearing officer and I'd like to nominate Mr. Replogle to be the hearing officer. AU: I second that. AGUINALDO: Third. REPLOGLE: Okay, I would be willing to do it and let us take a vote on that maybe we don't need to vote I don't have any competition unless you'll would like to do it Joe? CLARKSON: No, no, I'm glad that you're doing it John. I move that Mr. Replogle act as hearing officer and conduct the contested case hearing. JACKSON: Chair Clarkson, we already have CLARKSON: Yeah, yeah. JACKSON: So, I will go ahead and take a voice vote if that's okay. REPLOGLE: Absolutely, please do. CLARKSON: Aye. JACKSON: So, the motion is to designate Chair Replogle as the hearings officer if a contested case hearing is held. Commissioner Raffipiy? EXHIBIT B 19 RAFFIPIY: Aye. JACKSON: Commissioner Au? AU: Aye. JACKSON: Commissioner Clarkson? CLARKSON: Aye. JACKSON: Commissioner Aguinaldo? AGUINALDO: Aye. JACKSON: And Chair Replogle? REPLOGLE: Aye. JACKSON: Alright, motion carries 5-0. REPLOGLE: Okay and I would like to say to Ms. Keri and Mr. Yeh please take care of this in mediation if you know what's good for you. [Chuckle]. Okay, speaking in the heart. CLARKSON: I'd like to make a motion? REPLOGLE: Yes. CLARKSON: I move to continue the hearing until after the parties have had a chance to participate in mediation. AU: I second that. REPLOGLE: Okay, it's moved and seconded I believe this would happen anyway but, all those in favor of the parties mediate before the hearings officer is called. All those in favor say aye. COMMISSIONERS: Aye. REPLOGLE: Okay, we double secured it. Okay. JACKSON: So, Keri and Tom I will reach out to you by email within the next week or so to arrange that mediation. Okay. YEH: Thank you. DICKIE CLARK: Acknowledge with a thumbs up. EXHIBIT B 20 The discussion ended at 10:27 a.m. Respectfully submitted, Melissa Dacayanan-Salvador Secretary Windward Planning Commission EXHIBIT B 21