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HomeMy WebLinkAbout2021-02-18 Leeward Exh A (SMA 20-076 & SSV 20-012) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT FEBRUARY 18, 2021 A regularly advertised continued hearing on the applications of AOAO KONA REEF, INC. (SMA 20-000076/SSV 20-000012) was called to order at 10:24 a.m. via online meeting, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Nancy Carr Smith, Barbara DeFranco, Perry Kealoha, Max Newberg, and Mark Van Pernis ABSENT AND EXCUSED: Faith"Faye" Yates ALSO IN ATTENDANCE: Malia Hall, Esq. (Counsel for the Commission), Zendo Kern (Planning Director), John Mukai, Esq. (Counsel for the Planning Director), Alex Roy (Planner), Maija Jackson (Planning Program Manager), Rachelle Ley (Secretary to the Planning Director), and Noriko Sauer(Leeward Planning Commission Secretary) APPLICANT: AOAO KONA REEF, INC. (SMA 20-000076/SSV 20-000012) Applications for a Special Management Area(SMA) Use Permit and a Shoreline Setback Variance to construct a 220-foot long Concrete-Rubble-Masonry (CRM) wall approximately one (1) foot inland(mauka) of the certified shoreline and within the shoreline setback area located seaward (makai) of the Kona Reef Condominium Complex on an approximately 2,500-square foot portion of a larger 3.08 acre parcel situated in the Special Management Area. The subject parcel is located at 75-5888 Alii Drive, Pua`a 3rd–Wai`aha 2nd, North Kona District, Hawaii, TMK: (3) 7-5-018:071. VITOUSEK: Item one, the applicant is AOAO Kona Reef, Inc., Special Management Area SMA 20-000076 and Shoreline Setback Variance SSV 20-000012, applications for a Special Management Area Use Permit and a shoreline setback variance to construct a 220-foot long Concrete-Rubble-Masonry wall approximately one foot inland, mauka, of the certified shoreline and within the shoreline setback area located makai of the Kona Reef condominium complex on an approximately 2,500-square foot portion of a larger 3.08-acre parcel situated in the Special Management Area. The subject parcel is located at 75-5888 Alii Drive, Pua`a 3 and Wai`aha 2 Ahupua`a, North Kona District, Hawaii Island, TMK: (3) 7-5-018:071. This agenda item covers two applications, as the proposed project requires both permits. The Commission will vote on each application separately, but we will hear the applications together. I'd like to note that the Commission is in receipt of correspondence from the applicant's representative Mr. Raymond Pieri—did I pronounce that right? (no audible response) okay dated February IO'h, 2021. 1 EXHIBIT A Have all the commissioners read the material that's been provided to us? (No audible response) Has our corporation counsel read the material and formed a legal opinion that aligns with the planning director's recommendation for these agenda items? MUKAL Yes, I think it's ready for your review and action. VITOUSEK: Thank you. We will have a presentation by the county Planning staff and then a presentation by the applicant. After the completion of the staff's presentation, there will be an opportunity for Commissioners to ask questions relating to the content of the staff's presentation. I ask that the commissioners wait until both staff and the applicant have presented before asking detailed questions about the agenda item, and at that time I'd like to allow each commissioner a reasonable amount of time to ask questions of the applicant and county staff. I believe that no more than 10 minutes per staff member, or per commissioner, is appropriate. And once each commissioner has had the opportunity to have their questions and concerns addressed, I'll seek a motion from the commission, after a motion and a second there can be an open discussion amongst the commissioners prior to a vote. Alex, are you ready for your presentation? (No audible response) Okay, go ahead. ROY: Okay, hopefully everybody can hear me and see the screen. I have a location this is for the AOAO Kona Reef, Incorporated, as the chair has said, Special Management Area Use Permit application and shoreline setback variance application. I'll be presenting the information for both of these applications in one presentation. Here we have a map of the project site, proposed project site. On left-hand side you see Kailua-Kona, it's south of Kailua-Kona center. And then here you've got the Kona Reef Resort, so it's kind of showing you where that is, south, or just north of Honl's Beach, which is a beach park on the Kona side. At this time, and as best as we can gather, the applicant is requesting to build a continuous 220-foot-long concrete-rubble-masonry, or CRM, wall within the shoreline setback area. The structure would be located entirely mauka of the certified shoreline and would be built to approximately ground level, would be approximately 12 to 18 inches wide at the top and anywhere from 24 to 42 inches wide at the base, depending on the plans you review. And the entire structure would be parallel to the mauka side of the certified shoreline by a buffer of 12 inches; so it'll be located 12 inches landward, or mauka, of the certified shoreline. The applicant's intent, the purpose for this project and the primary purpose for the wall is to prevent future erosion of the lawn area and to mitigate effects of rare storm or tsunami surges that could cross the shoreline. County zoning, it's in V-.75, which is Vacation, and then you can see that the surrounding area along—so this is Alii Drive—so pretty much everything north of that is in the same zoning. You have Residential south of that, RS-10, RS-10 across the street, Residential, this is Commercial, and then some Ag lands, so a majority Residential but with some intersperse Commercial and Vacation-type zoning. 2 EXHIBIT A The Land Use is Urban. LUPAG shows that the area, pretty much the project area, which would be right along the coast, is in the Open with some other Resort Node being in the mauka end of the property, mauka side, Medium Density Urban,that will be the Kona Urban Core kind of up mauka of the site, mauka of Alii Drive. This is the Special Management Area, so you can see it goes all the way up to the highway, so it includes Alii Drive and all the properties surrounding. So this property is entirely within the Special Management Area. Here is an aerial photograph of the site. The red lines demarcate the parcel TMKs. I put in a yellow dashed line just to kind of show the commissioners, you know, the bounds of the project parcel. I did not outline the shoreline, so, which is kind of opens up, but just to kind of show you the boundary of this parcel and to give you an idea of what the property looks like. Take note of the beach park south of the property and the developments, you know, surrounding this area. Here is another aerial photograph. I put this in to show the commissioners all of the existing seawalls that are currently in place. So everything in yellow is an existing seawall, and the red dashed line will be the proposed wall structure, erosion control structure. So, again, all you see is the beach area that is not walled in and then the remaining property, but the rest of the surrounding shoreline is completely built up with seawalls. Here is a view north from Kona Reef area along Alii Drive,just to kind of give you an idea. View south. This is the property entrance on Kahakai Road that goes down to a shoreline access. This is the shoreline access here that the public has right to cross into the property and then access the shoreline. Here is a shot, two shots, and one, long one, on the left, the panoramic, shows the approximate location of the shoreline, certified shoreline, and then really the so-called damage that the applicant is looking to alleviate on the right-hand picture; you can see there is about 11 or 12 inches of scarp. And that is fill material that was placed during the construction of this condo, and then grass placed on top, so it's, you know, unnatural sandy cobbly fill, not deleterious in any way,just sand and rocks and gravel. Here is from Honl's Beach looking towards the project site. Take note of the CRM, existing CRM wall that runs along the property line boundary between the subject parcel and the beach park. The wall would connect into that CRM wall. Here is the certified shoreline map and then the approximate 40-foot shoreline setback. So the shoreline setback area, you can see that the setback includes the structures, both, both of the building structures, and then the certified shoreline which was certified and was accepted by the director. Here is a site plan. So I have taken everything and kind of put it into one form; the proposed CRM wall is in blue, not really scale but, you know, roughly parallel to the certified shoreline, 3 EXHIBIT A and then there's existing CRM walls, which I outlined in red, you know, right makai of buildings, of the existing buildings, and then over here you see the CRM wall that the new wall would be tied into. This is the first seawall design that was presented in the SMA/SSV application. You can see that there is an exposed face, so here will be the shoreline, this is the shoreline line, the certified shoreline, but the makai face will be exposed and then built to grade, the finish grade running right to the top of the structure. Here they show us 12 to 18 inches on top and then the base 36 inches. This is from the application. This is the second seawall design that was presented in the application and also was presented in the final environmental assessment. So, here, again, we see the exposed face on the makai side of the property, the structure built to grade, 12 inches on the top, and here they've marked it as 24 inches at the base. So just take note of that exposed face. Here is the design that was presented to the Planning Commission via letter dated February 10h. Now the wall is buried on the all sides, and we see that it is a 28, 28-inch minimum base and an 18-inch minimum top, the certified shoreline, which he shows to be completely buried, is, you know, and then the makai face. So these are plans that we've got less than a week ago. Unfortunately, I—it's still difficult to see but I tried to outline the sandy deposits that are seaward of this area. There has been some discussion at this is an actually sandy beach; well, in a typical fashion it is not, but it has sand deposits, so it's a sandy rocky beach, but there are definitely sand deposits that are seasonal and come and go with the summer/winter swells, but it usually, it typically returns. And then of course you see Honl's Beach, which is really the, one of the few sandy beaches in this area, supposedly a great surfing spot. So at this time I'd like to give the planning director's recommendation for SMA 20-76 is denial, and the planning director's recommendation for Shoreline Setback Variance 20-12 also denial. At this time the director would like to make a statement related to this project, and hope the commission would accept that. Thank you. VITOUSEK: Thank you, Alex. I know this is right up your alley. Zendo,please go ahead. KERN: Thank you, Mr. Chair. Good morning, Commissioners and staff, corporation counsel, Ray, good to see everybody. So, yeah, I felt like this one made sense to just kind of look deeper explanation of my thought process. This application I feel is not the beginning but it's something that we are going to be seeing a lot more of, the combination between protecting private property rights as well as preserving natural resources. When I looked at the application, looked at the EA and every, all of that, which was semi-process before I actually became the planning director, I was having some heartburn on the, what would potentially happen to Honl's Beach. And so, trying to have this dialogue moving forward on how to make this work, ultimately, I think it would be awesome if we could find a way to support an application like this and find a wayI wanted to try to find a way to actually send a, forward a positive recommendation. The issue that I was having is I don't know how this 4 EXHIBIT A will affect Honl's Beach. Today the seawall, or the wall, excuse me, is above grade, and it's been buried in the ground, so it's technically not a seawall. But over time sea level rise, it will then erode in front of it, and it will turn into a seawall, as we've seen in the engineer design drawings. While it might completely undergrade today, as it moves forward, it will have the face exposed, then that will create flanking, that will create hardening of the shoreline surface. And in order to be comfortable with that as my position, I want to know that when that happens, whether it's five years, 10 years, or 20 years from now, what effect that's going to have on Honl's Beach? Is that going to take away the sand? Is it going to keep the same way that it was? So I was, I was trying to work with the applicant to hopefully have more modeling or more studies done. The studies that were presented were, in my opinion, were very focused on the subject property and out in front of the subject property and did not take into account Honl's Beach. So, with that being said, I was hoping to have more, it didn't come through in the manner that I felt comfortable with, and so that's the reason for the denial of, recommended denial of the application. Obviously, it's the commission's choice how you guys want to work through this, but that's, that's the framework that we were coming in. And again, I feel like this is a critical application because we are going to be seeing more of this moving forward. No question, with sea level rise,private property, and it's going to be a challenge. And I think thisI'm not so worried about setting a precedent as I'm just concerned about how we are doing this the right way. And personally, I want to ensure that, you know, we protect our environment and our natural resources. So, with that, happy to answer any questions. Alex has got all the detail. Thank you for the latitude, Mr. Chair, and I'm here to help. VITOUSEK: Max, go ahead. NEWBERG: Thank you, Chair. You know, as I look at this and I read it Zendo, I don't have your skillset, I'm not a civil engineer, I'm not an ocean scientist—but my initial feeling as I looked at it and learn more about it, as you say, we are going to look at a lot more, as sea level rise (inaudible—loss of sound connection), again, not being an expert but as I look at it, my initial take is it almost looks like a retaining wall that would be installed as it has been designed a few different times. And to me, in my opinion it almost looks insignificant. And that's just aside from protecting what they are trying to achieve. It just seems to me, looking at it, going a cycle of what(indiscernible—simultaneous speech) HALL: Sorry, sorry to interrupt, Max. This is Malia. Sorry,just point of order. This is in for questions, so if you have questions for staff or the director or the applicant. And then if you are going to start discussing your points of views and all that kind of stuff, that we'll have to wait for a motion. Thank you. NEWBERG: My apologies. To get it back to questionI apologize for editorializing there but—do you feel it would achieve the thought process aside from its effect potentially on Honl's, or Wai`aha Beach? KERN: I'm obviously not an expert and I'm not an engineer, either, but if we look at the trend of sea level rise and erosion over time, whether that's five to 15 or possibly 20 years from now, that will turn into shoreline hardening, as the sea level rises, and then that will have an effect on 5 EXHIBIT A the side beaches the same reason why Act 16 was recently passed by the State Legislature on how shoreline hardening is affecting sandy areas. So as today, next five years, next 10 years, probably not, but it will be at some point, and it will turn into shoreline hardening. And I wanted to see some type of modeling on that. If I saw some type of engineered modeling that says when this happens, sea level rises by three feet, it's going to hit this, and it will affect the beach park in a certain way, and that didn't have a negative effect, I'm great, let's, let's move forward with a positive recommendation. Again, I'm not an expert, so I'm kind of counting on the experts, or the applicant to, you know, retain the experts that I feel can give us that information to help us make a sound decision. NEWBERG: Thank you. VITOUSEK: Commissioner Van Pernis. VAN PERNIS: Mr. Kern, is this application, was it processed through your term or with Mr. Yee? KERN: The application originated under previous Director Yee and came through to me, and I have the opportunity to make the recommendation. VAN PERNIS: So this recommendation is your recommendation, not Mr. Yee's. KERN: This recommendation, no, this recommendation is my recommendation a hundred percent, yes. VAN PERNIS: And this is recommendation on the basis that the protective wall will be completely covered on all sides? KERN: My recommendation has to do with the uncertainty of how this wall will affect, be affected, with sea level rise over the course ofagain, I don't know the timeframe but within my lifetime. VAN PERNIS: So you, so the recommendation is not based on fact but based on your lack of knowledge of when the adjoining park will be affected. KERN: Thank you, Commissioner Van Pernis, I don't think it's due to my lack of knowledge; I would say it's due to lack of sufficient evidence that there won't be negative effects on surrounding property owners, which we need to abide by the General Plan and Chapter 205 as well. VAN PERNIS: So KERN: I just want to add to that. 6 EXHIBIT A VAN PERNIS: So if that information was adequately investigated by the department on that would show the application would not or might or would affect the park in the future with sea level rise, would your recommendation possibly change? KERN: If there was modeling that would show it wasn't going to have an effect with sea level rise, my recommendation would be a favorable recommendation. VAN PERNIS: The KERN: That's why I'm speaking here to, to try to say it's a heartburn one for me, and with the lack of information I feel I can't move, I can't give it a favorable. VAN PERNIS: So it's based on lack of information, not the application itself. KERN: Well, if you look at the EA and if you look at the erosion study, the erosion study is very specific to that property and the front of the property; it does not really take into effect Honl's Beach. And the same situation with the environmental assessment, it doesn't really give other alternatives, and I just don't feel it actually takes into effect, you know, Honl's Beach next door, which is one of the few sandy beach resources that we have left along Alii Drive. VAN PERNIS: So if that information was available, or provided, you would reconsider. KERN: Yeah, and that was the discussions that we've had with the applicant. I went to the site visit, I walked on the walls, I walked on, and I said, hey, if you can help provide us more sound data that we can make a sound decision off of, I would like to be able to support this. Again, it's a critical conversation right now on a critical application moving forward. VAN PERNIS: Were the seawalls on other property adjoining the park heading south, and there's two walls north of the property, and the commercial aspect of this property in their timeshare considered? KERN: I'm not sure if I understand the question. VAN PERNIS: Well, let me restate it, that's two questions. In your consideration of whether the beach park would be affected, were the seawalls to the south of the park considered, and the seawalls to the north of this applicant's property considered? And the second questions is, is the commercial aspect of this applicant's property, and that is heavily used timeshare, considered in your decision? KERN: For the last question as far as a commercial use, no, it was not considered in the decision. The shoreline hardening both south and north were not. Again, my decision was based on the lack of date, lack of information. I'm not qualified to make that decision. That's why I build in comment to have an engineer or somebody of that nature that specializes in this. This is the same, the same type of studies that they are using on other islands for this type of application. VAN PERNIS: Thank you. 7 EXHIBIT A KERN: Thank you. VITOUSEK: Alex, is there anything you want to add to that? ROY: I just wanted to say that some of you may or may not know, I worked for OCCL, which is the Office of Conservation and Coastal Lands, for seven years—so that's managing the state's coastal zone across every single island. I have two, not one but two degrees in geology and have 15 years of experience in coastal zone management and coastal development. The person who put together the erosion report is (indiscernible—simultaneous speech) and does not have the experienceoh, I'm getting some feedback—does not have the experience so the study itself was, did not include things that you would typically see in any normal erosion control report. And I know, contrary to popular belief, I did in fact read the report many times, and as a published scientist myself, I, it was lacking seriously in information and data. The conclusions were sloppy and based on inaccurate information or lack of information, and the statements used and the information used was old and outdated. So we just felt that it was unfair for the director to make a decision based on poor information. So we approached the applicant to come up and buff up this report so that we could, you know, take a look at possible alternatives to protecting the lawn area, which is essentially what this project aims to do and what the applicant has stated up until seven days ago. So we were, we just, we just wanted more information. There is no littoral cell, which is primary in any erosion report. You have to look at the littoral cell of the entire area, which, to answer your question, Mr. Van Pernis, you would need to look at the impacts of the northern and southern, you know, sections of seawall and how they impact the littoral cell and thus impact, you know, the property, and then the addition of this structure, which the applicant admitted would turn into a seawall in the future, by everything makai of that wall would just erode away and you need to have a seawall. And I have seen that in my experience many times over, not just here in Hawaii but also on the mainland; when a structure is built, you lose the makai face of material, and then you could lose the seawall. And we've seen that in Hawaii. Maui is a great example of failed seawalls just falling onto the beach. So, again, we just, we were hoping for more information. The applicant was reluctant to give that, so it was kind of unfair for the director to be asked to make a decision when he doesn't have all the information. And I could speak to the erosion report, I won't, but, you know, unless the Commission would like me to do that, I can do that. VITOUSEK: That's not necessary for me at this point. I just want to recognize Alex is a professional history in this department, and that he is a tremendous asset for Hawaii County in evaluating exactly this scenario. So I think we need to weigh heavily on his expertise in this. Are there any other questions from the commissioners? We'll get to you, Mr. Pieri, during the applicant's portion. Commissioner Carr Smith. CARR SMITH: Thank you, Mike (echo) mm, pray it won't echo. I just had a couple of quick questions for Alex. I, too, wondered about the wall to the south. Does the county have any information about when that wall was built and if it had any effect on that same Honl's Beach? 8 EXHIBIT A ROY: I have not looked into those. A lot of those walls areI look back in the aerial photographs, and they've been there for decades. So I have to kind of go back probably 30 or 40 years to take a look to try to work back that area. I just, you know, unfortunately don't have the time to do a coastal study. That would have been a job for the applicant. CARR SMITH: Okay. Do you, do you know if the walls that are nearby are the one to the south is the one I'm thinking of—is that the same type of wall that the applicant is requesting or something different? ROY: The ones that are, I outlined are exposed seawalls, and are, you know, as I shared in the design, would have that makai face that's exposed to the water and then backfilled, so similar in some of the designs that we were shown to this wall, but, you know, different in that those I believe were built as seawalls when they were allowed to be built, you know, back 20, 30, 40 years ago. CARR SMITH: Okay. And last question is, it seems, in your presentation it seemed like there was concern about the fact that there would be exposure on the makai side of the wall, but then I guess in this last letter, the February I0h, it seems like now they are talking about burying it. Does that, does that make it any better or more desirable to you guys or not? ROY: You know, that was one of the alternatives we had discussed, and we had asked the applicant to provide us a better analysis of alternatives. And that letter was sent, you know, very late after the reports on background and recommendation were written, so we were not privy to that information. While it may be a better solution environmentally, I think then the question would be what is the effectiveness of this structure on alleviating the issues that they are having, and that's where there was issues to—we didn't believe that structure would be effective, and that's based on my experience on what I've seen, and then, again, the erosion report really didn't speak to how that structure would be effective. I just want to give you a quick little from, you know, this is the conclusion from the report, and I'll just read a couple of lines: "No significant erosion of the shoreline fronting the Kona Reef Condominiums has taken place in historical time," "Minor erosion of a lawn fronting the Kona Reef [KR] Property is caused by the infrequent," or rare, "storm surge or tsunami waves that reach or extend beyond the shoreline," and then they go on to say that, "That erosion can be mitigated by the construction of'this wall. But there is actually no, no nexus between that statement and showing how the wall would actually alleviate. Because in the application the applicant stated that anything, any land that's makai of the wall would eventually erode away. And so the reason that we talk about the face and the exposed face is because the hardened structure style that this represents and the fact that the state is adamantly working to alleviate or minimize hardened structures at shoreline. Chapter 205A was recently amendedI know I talked about that in the recommendation. While this application came in prior to those changes, it still speaks to the state's position on seawall structures and their long-term impact. Again, we are not, as the director made clear, we are not shutting the door on this project. We just feel it's, we don't have the appropriate information to make a conclusion, decision, so that we can protect the beach,protect the structures, you know, and preserve the access, which is 9 EXHIBIT A really ultimately all we are trying to do. So at the end of the day that was, we'd asked for more information, but unfortunately, they were reluctant to provide that for us, so. CARR SMITH: Thank you, Alex. VITOUSEK: Are there any other questions of, from commissioners, of staff? (No audible response) Okay, seeing none, we will move on to the applicant's presentation. Mr. Pieri, please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Leeward Planning Commission? PIERL Yes, I do. VITOUSEK: Okay,please state your name and your area of residence. PIERL Raymond S. Pierioh, we've got(indiscernible–echo)Uluwehi Place, Kailua-Kona, Hawaii. VITOUSEK: Have you received the background and recommendation reports from the Planning Department? PIERL Yes, I have. VITOUSEK: Okay,please go ahead with your presentation. PIERL The thing that I want to do the most is that I want to get facts out front. There are numerous errors in the Planning Department's recommendation. There are human errors in the background report. And I think the facts are the most important thing here. I'm sorry Alex left; I hope you are still there because I did want to ask one question for him. After all that he said, I'm looking at the paper that came from OCCL back in 2017 that says the OCCL did not have any comments on this project. That's part of the FEA. Okay, so where I'd like to start is with the county Planning Department's background report. We are looking at exactly what the wall is and what the wall isn't. The—let's see here to begin with, Alex got the submissions of the wall designs incorrectly. The one that he showed you as the second submission was actually the first submission, and it was part of the FEA. It was done by Engineering Partners in Hilo. I could not convince them they signed the contract to do a rock wallI could not convince them to do anything but this. So after 10 months to years' time their project was included in the FEA. Looking at their project, it was, it was just a ridiculous idea. I wrote a letter and sent that to the county, explaining what the situation was with that par—with that wall's designs. The second wall design, the face of it was left open for demonstration purposes only. We at one time hoped that we could build the wall closer to the shoreline, but when we found out that that was not going to be possible, the north end of the wall was moved back so that it could be covered 100 percent. No part of this wall will be seen. So that kind of clarifies as far as the design problem. But the first design was just utterly ridiculous. Monolithic pour with face stone that serve no purpose. It also would have required to dig a trench, dig a 400 [sic], a full 220 feet of trench that the wall was going to sit in all at one time. It 10 EXHIBIT A required concrete stakes, braces, etcetera, which are, you know, which add to the safety factor. The second design, which is a rock wall can be excavated for a one- or two-day's work, the wall can be built, it can be backfilled upon inspection by the county, and then the next section can be built. It will not involve concrete stakes and braces everywhere. When the j ob is over, it will not cause, you know, tons of material to be taken, the foam lumber, etcetera, to be taken to the landfill. The second design, which is a rock wall, is a thousand times better than the first design for many, many reasons. And then the paper that I've been, the design that I just sent with my letter is the clarification that the entire wall will be covered. Let's go back to the background report. It says that it will include a drainage pipe that will run the entire length of the structure. Absolutely not. That was blown out of the water from the very beginning because all the drainage pipe at the back of the wall will do is create a place for rats and cockroaches, because along the shoreline you do have a rat problem. Coconut trees next door especially. So that was never going to be part of any program, a full-length drain. They were concerned about draining, where is it going to drain to. The other thing is it would just end up filling up with rainwater or sprinklers, you know, those sprinklers when they come on, because the lawn has sprinklers. So that was, you know,just a ridiculous part of design. When I turned it over—let's see page 2, sorry, on page 3, they say that it's, "The shoreline fronting the property is rocky boulders." There are rocky boulders on it, but the shoreline in front of that is a pahoehoe shelf that extends, you know, probably even the place is 150 feet out to sea. On page fif—page4, I'm sorry, the, again, background report,just received an email yesterday (indiscernible–simultaneous speech) VITOUSEK: One second, is it, one second, is it page 4 of the background report(indiscernible– simultaneous speech) PIERL Yes, page 4 of the background report. VITOUSEK: Okay. PIERL In the middle of Planning Exhibit 3, letter dated November 19'', they sent a letter saying that the AIS, the archaeological inventory study [sic], was not done. It was done, and it was submitted properly. I contacted Alex in probably in February or March of last year in straightening this out with him. He claimed it wasn't there. I sent him a letter of, with the receipt, etcetera. What happened was the AIS that was included in the final environmental assessment was incorrect. The original AIS was not sent to me until after, ended up being in the final environmental assess—actually in the EA. I made sure to correct that with Graham Knopp who was doing the FEA. He did not correct it. It was corrected with Alan Haun, it was corrected with me, but for some reason the wrong AIS was included in the FEA, which was why I contacted Alex with the straightened-out the first part of last yearI think it was the first part of last year, I have to look up dates. Yesterday I got a letter finally from SHPD that the AIS is, it's taken care of, that problem has been taken care of. 11 EXHIBIT A Page 5 of the background report, the first paragraph states that the shoreline grass area is used by residents. It's used by everyone; everyone that comes near uses that area. It's used for sunbathing, whale watching, they watch the ironmen swim, they watch canoe races, they watch fireworks over the bay, you know, over Kailua Bay, you know, it's a really popular area and it's well used. Utilities service, wastewater, number 20, item number 20, the county sends a bill every month. It gets paid. We are hooked up to the wastewater, the county Wastewater Division. Okay so, that's, you know,just some of the areas there. That's, that's enough with that. We've already corrected—if you go to the, let's go to the Special Management Area Use Permit application, the county's recommendation,paragraph 2, "The structure would be embedded in the existing soil on both sides for about a half[�/z] of its length, and on approximately the northern half[�/z] of[its length the] structure would be exposed,"we've cleared that up. That's in both reports. That's not going to happen; the entire wall will be embedded and covered over. The sentence after that, "Drainage would be a component of the design,"we've covered that; that's going to be perpendicular pipes to the wall, they will have screens and filters on the mauka side so that no particulate goes through. Until everything on the ocean side of the wall washes away, any fluid, any water, that gets into those drainage pipes is just going to run into the back of the fill in front of it. But there will be no discharge of dirty water into the ocean. Again, there is the point of the drainage pipe running through full length, that's not going to happen. On page 2-well, let's just ignore that. On page 3 we go through the exposed rockface again, which won't happen. The statement that Alex and the state and everyone is harping on that I made in the setback variance application or the SMA application was, "The intended purpose of the CRM structure is not to artificially fix the shoreline; that being said, it would be irrational and naive to think that at some point in the future some areas, if not all, of the CRM wall will not serve in this capacity." It's a statement of conjecture. It's a statement of being intelligent enough to realize that it is a possibility. It's not an inevitability, okay, sea level rise, whatever, it's still not an inevitability. Just below that, it says that the wall will inhibit—what does it say, inhibit—"interfere with existing recreational and waterline activities." There is no possibility for it to interfere with these activities. I just tell you now, you know, I cannot see this in any way, shape, or form. The paragraph after that, "The applicant failed to incorporate the Hawaii Sea Level Rise Vulnerability and Adaptation Report 2017"; the erosion report that was done, it was done in 2016, I'm not, I'm not an expert, I can't take the data from that 2017 report and give it to you like it should be given to you. No, I can't analyze that data. The last paragraph, the second line up from the bottom, "It is unclear how a wall, built to grade, will protect a structure that is built only 1-foot above the base flood elevation,"we are trying to protect it from the ocean, from tsunamis and hurricane waves. This project was put to bed for a long time. It was started and it was put to bed for a lot of years because the association got complacent. They hadn't had any problems since 2011. The—and Alex is right, they are rare occurrences; tsunamis and hurricane storms that pass close enough to the Kona Coast and cause damage are rare occurrences. So we got complacent. But what started this process up again was in August of 2018 Hurricane Barbara passed south of the island and took a large chunk of State land fronting the south end of the property and washed it out to sea, and that's what brought the project right back up to, you 12 EXHIBIT A know, to top of the list. The county later on in year, one of theseI don't remember which one, I'd have to read it—it states that, you know, we haven't shown that there has been any damage from any waves or anything. Yes, we have, because when the damage in August 2019 happened, a letter was written, pictures were taken, it was sent to then-Planning Director Yee, telling him that we had to do something with that because it created a safety risk factor. The waves had not gone up as far as the certified shoreline, the previous certified shoreline, but they had undercut about three-foot of the soil, so that there was that safety factor; if somebody walked off on that, it would collapse, or they could walk off the end of it. So we wrote the letter to the director, asking to do something about it, and told him that, you know, no matter what, we were going to put a railing out there to protect the public. We had to put a railing up. The railing is still there to this day because there is still a drop-off there that's a danger to the people. The area fronting the Kona Reef is being called beach in many places in these filings. It's not a beach. The picture that Alex showed you of these huge mounds of sand deposits in front of Kona Reef was totally misleading; there has never been that amount of sand there. You know, maybe back in the 60's or 40's or something, I don't know, but the picture that he showed you was misleading as it can be. There is a beach next door, and there are some sand deposits on the pahoehoe shelf, but there, you know, what he showed you looked like there was just one big sand beach in there, and that's not so. Let's go back to the erosion report. He's saying that the fellow did it was not qualified. His son-in-law who did the report with him, I looked his resume, he has done multiple erosion reports and you know, facts are facts. VITOUSEK: Mr. Pieri, I would prefer it if you would stick to the merits of your application PIERL Okay, okay, okay (indiscernible–simultaneous speech) VITOUSEK: —and discuss the points of why you believe this is necessary in order to justify allowing for this variance under 205A. I've given you some time to go over the rebuttal to staff, but if you could briefly state the case or why you believe this application deserves a variance pursuant to Hawaii Revised Statutes 205A-46, I'd appreciate that. PIERL Okay, thank you very much, I will, I will see through the facts, but I have to say there are multiple facts that are not correct. You can't judge something on misstatements and errors and omissions. The reason for the project is to, you know—it's as plain and simple as can be to protect the property from tsunamis or hurricane waves that at some point may even undercut the structures. If you undercut the structures, you may end up with a 20-year eyesore like you have next door with the concrete slab. The other thing is that you damage or undercut the property, or do enough damage to the property, it's going to lower the value of the property and units in it, which will create a ripple effect in the real estate market in Kona. Everyone's property values go down, which will mean less tax revenue for the county as a whole, so then you are affecting the whole county services. 13 EXHIBIT A The other reason is very obvious. It's an extremely popular place, it's used by thousands of people a year. It's not used just for somebody to walk by, you know, as stated in one of these recommendations. Like I said before, they are there to the Ironman swim, they are there for fireworks, they are there for whale watching, they are there for every outdoor activity imaginable. It is in the interest of the public that this property is saved. There is a dedicated shoreline access, 10 feet right-of-way along the shoreline, but Kona Reef for the past 40 years has let everyone that comes there use their property for whatever they would like. The other thing is is in the statutes or codes or whatever, or the Kailua Village Design, they are asking to, or they are wanting to, maintain a shoreline corridor. To me, this is a very important part of the shoreline corridor. As far as studies go, we launched to do studies, but before the studies were done, I was told that they really wouldn't matter who we had testified, so I thought, well, if it really won't matter who we have do a study, because I was told that the whole thing was, until I spoke to Mr. Kern, I was told the whole reason was going to be they did not want to set a precedent. That was the hard belief, this is a state belief, it's a county belief, they don't want this project to set a precedent. Like I said, until I talked to Mr. Kern, that was the feeling I got. But I talked to him too late to have these studies updated. Mr. KernI also in the letter stated that we are willing to do whatever it takes to get this project approved. If we have to post a bond to monitor the effect of the wall on the beach, that's fine, you know. The beach next door, again as I stated in the letter, is just as big an asset to the Kona Reef property as it is to the county and everyone else. It increases our value, it increases our rental income, it increases the desirability, you know. I, I cannot see denying this project for unsure future unless we look and see what the unsure future is first. Thank you. VITOUSEK: Thank you very much, Mr. Pieri. Would you mind muting yourself while you are not speaking—okay. With that, are there any questions for Mr. Pieri? And again, you know, I'd like to take this opportunity to give each planning commissioner the opportunity to state their questions and their concerns to have those addressed by both Mr. Pieri and by Planning Department staff. I'll ask the commissioners take no more than 10 minutes per person. Commissioner Van Pernis, you got your hand up first, please go ahead. VAN PERNIS: Thank you. Mr. Pieri, the county says they need a lot more information or your information is not complete or accurate. You say the county is erroneous in many of its conclusions. Would you consider or would you agree to a deferral of this application pending submission of information required by the county and your correction of what you allege are mistakes by the county or lack of proper information from the county? I also recognize that some of your application is relatively recent and modified, and I think a deferral would help. Would you agree to that? PIERL I will agree to that being a possibility, once I hear what the questions are from the rest of the commissioners. Thank you. VITOUSEK: Commissioner Van Pernis, do you have any other questions or concerns. 14 EXHIBIT A VAN PERNIS: No, I don't. VITOUSEK: Okay. Commissioner DeFranco. DEFRANCO: Hi, yeah, Mr. PieriI got some reverb there, I'm sorry. My question is, to Zendo and to you, is it seems like the biggest missing piece—maybe I'm wrong—and also Mr. Roy, is there is an erosion question here and the effect of erosion and to make sure that there is a proper investigation of the effect that would have on the beach next to it. And I think that it sounded to me like if you are willing to look at that and come up with an additional information, that then I got the feeling that Mr. Planning Director would approve this. So, I don't know, to question, are you willing to look at doing further erosion studies and presenting them to the county? PIERL Absolutely, 100 percent. The reason that they, prior to that, they weren't done when they were asked for was I was forcefully told that they weren't going to let this project happen because it would set a precedent. And until I spoke to and had a meeting with Mr. Kern, Director Kern, at site, and he said to me pointblank he said a precedent isn't a major concern of mine, the beach next door is the major concern. And I agree with him 100 percent. Like I said in the letter that I sent, I offer to do, you know, monitoring as for the studies. He said that there was, you know, if the wall got approved before that—again, reiterating what's said in the letter that there was no way for the county to force us to do that unless we were willing to post a bond. And I spoke to the board of directors on that, and they said yes, we will commit to further studies without any problem. But if, as I was told, the decision was predetermined that there was a setting a precedent and it was no way they were going to let it happen, you know you also read the letter and read the comments from the person that did the original erosion report, and you read the comment from Charles Fletcher, Chip Fletcher, the preeminent authority that writes the books and the papers, that all these laws and statutes and regulations and codes that everyone is reading and relying on, they reference his writings, his books; he is the expert. He, like I said, he got the erosion report, he did not get any other information, but his response is plain and simple, it's in the letter that I sent. Thank you. DEFRANCO: Yeah, I appreciate that, and I also just want to mention I heard the planning director say this, like you said, too, that that wasn't going to set a precedent, that he had taken that off the table already. So all of us got that. I think that we also understand that maybe if you were to supply some further studies, that this would probably be approved, so. And I'm glad that you pointed out the, how the different walls weren't in order—because it, when I looked at it, it didn't make sense that we had them out of orders, so that was good to know how the drawings played out there. Thank you. VITOUSEK: Commissioner Newberg, I mean, Vice Chair Newberg, please go ahead. NEWBERG: Thank you, Chair. Thank you, Mr. Pieri. Two questions. Being that it's a project for Kona Reef, is it correct to know that any of these mitigation procedures, should they be allowed, would be paid for the owners, would be paid for by the owners of those condos at Kona Reef? 15 EXHIBIT A PIERL I think I understand you, but as far as anything goes, the Kona Reef condominium association is going to put to go for all of those studies for all the construction. The only question that I would throw back to you is they are going to require us to do all these major studies to prove the validity of the project, but, is the county going to do a study for the beach? Because we don't know what's going to happen to the beach next door whether we build the wall or whether we do nothing, you know, that's up in the air. The recent high surf on the Kona coast I think you ought to look at Honl's Beach right now, what the damage of just the recent high surf was. The other point is there is a separation between what comes in to Honl's Beach cove and what comes up over the lava shelf in front of the Kona Reef. I got off, sidelined off your question, but, yes, Kona Reef will strictly build for what's needs to be done. VITOUSEK: One point there, I'd like to have Alex respond. ROY: I just wanted to inform the commission that the county is undertaking a comprehensive island-wide coastal hazard and riparian hazard study, and we are just in the process of planning that, monies are being aligned, in fact, aerial photographs are being flown at the moment, we are working with UH; so the county is actually working on a comprehensive island-wide shoreline study. VITOUSEK: (Inaudible–microphone on mute) Sorry, Commissioner Newberg, are there any more questions? NEWBERG: Thank you for that, Mr. (indiscernible–echo), so again—we have an echo again. Getting back to the cost, my question was towards the construction cost, and I believe you stated that, again, a bit rhetorical but, that would be paid for by the owners of those particular condos at Kona Reef. The second question I have, and at this time the only other question I have, is you didn't mention your letter submitted, seven-page, which looks to be mostly of an email thread, which page 3 has an email from Chip Fletcher, and what I found was startling, if not all of these emails, was the last paragraph by Mr. Fletcher saying, "Lastly, the owners of this building need to know their location is doomed." Would you possibly speak to that, Mr. Pieri? PIERL The thing that I can say about that is, or what I want to say about that, is Mr. Fletcher did not get the complete project papers. He got the erosion report (indiscernible–simultaneous speech) while I was talking—so he only, you know, like I explained, he only got the erosion report, so he did not get the other documents. I don't think he got the topographical map, you know, I don't think he got pictures of the shelf, he didn't get elevations for the buildings themselves, you know, versus where the hightide line is, because weI did provide, you know, hightide line map, I did provide the 40-foot setline back [sic] with map, or the topographical map with elevations—so he did not get any of that information. And he is probably correct to an extent with just the basic information that he got that Alex says is useless. NEWBERG: Thank you, Mr. Pieri, I just wanted to confirm that. In closing at this time, you know, this is going to be an ongoing project that, if I may as well act for the other commissioners 16 EXHIBIT A in saying, that, you know, hopefully we can get some more information up to the Planning Department to further look into this project. VITOUSEK: Commissioner Carr Smith. CARR SMITH: Thank you. I just wanted to get some clarity so that we can move forward. It's my understanding that the missing information is further erosion studies and subsequent reports. Is that correct or is there something more, Alex? VITOUSEK: Go ahead, Alex. ROY: We had asked the applicant to conduct an alternatives analysis to see if the wall structure would actually alleviate issues on hand or if there may be other options, such as planting naupaka or directing public beach access to one point only. And these, there are a number of alternatives that could be presented, but because we, they were never presented, we don't know if that would be effective or not. So it doesn't seem, because the erosion report didn't really talk about the effectiveness of the wall or about the impact of the wall, it's unclear if this would even alleviate that issue. And the applicant has made a number of statements to kind of contradicting himself here in this meeting, saying that the water would have no impact and the water would have an impact, the water would sit behind the structure but then it would be drained and wouldn't move, so I would ask, you know this is from the FEA, so the applicant states, "The purpose of the project is not to deflect wave energy, or to hold soil in place against the eroding action of waves, as the structure would be located above the shoreline," so I think there is no clear purpose, and that is what's troublesome because there is just no clear purpose on the actual issues. The erosion report never once talks about impacts to the structures; it talks about impacts to the grassy area. And while Mr. Pieri may be allowing the public to sit in that area, there is no public access easement that makes that a public area, so it could be closed at any time. Now, Mr. Pieri would like to, or the AOAO, would like to make that public area, maybe there would be something that we could do to, you know, change the way that we look at this project, but at this time that's just, you know,just them being nice and allowing people to come in doesn't mean that it's in perpetuity. CARR SMITH: So, that public access corridor that we saw in your report, Alex, takes people to the ocean but does not take them across the lawn. Is that what you mean? ROY: They allow them to traverse the lawn area,but, no, there is no public access easement agreement, so there is no like deeded metes and bounds access point; it's just they allow to come in one area and then by the, you know, the Kona Reef allows them to traverse across the grass or at that point enter into the ocean. You could come right into the ocean at that point, step onto the beach or onto the rock area. But, yeah, there is no actual public access, deeded access agreement, and that's, this all came out of the shoreline setback variance from the 1980's, which was triggered by a violation from the Kona Reef. CARR SMITH: Thank you. KERN: If I could add just(indiscernible—echo) 17 EXHIBIT A VITOUSEK: Yes KERN: In addition to (indiscernible–echo)robust modeling how this wall will affect the beach over the course of 30, 40, 50, 60 years. That's the same methodology that they use on other islands for projects of similar nature. So just want to really have the best understanding that we possibly can. CARR SMITH: Zendo, can you repeat that? Because (indiscernible–echo) KERN: Yeah, some type of robust modeling by an engi there's engineering firms that deal with this that actually bring multiple-disciplinary folks together to actually create a modeling over the years of wave action, sea level rise, walls, flanking, etcetera, and that would take into account the walls to the south, to the north, this current wall, as well as the projections of sea level rise. And, to me, that along with the alternatives analysis—now, if the alternatives analysis came back and said we are doing vegetation, that's a different story; if it comes back and says we are doing the wall, which will eventually turn into shoreline hardening, having an understanding of the modeling behind that would be the proper methodology to do that. VITOUSEK: Just to add—Commissioner Van Pernis, this is Commissioner Carr Smith's time to ask questions, and then, you know, we will give opportunity for discussion after a motion has been made. Commissioner Carr Smith, please proceed. CARR SMITH: Yeah, I was just trying to get clarity. I think I understand(echo continued) mm, never mind, no, I'm good. VITOUSEK: Did you have further response, Mr. Pieri, to the question? PIERL Yes, but it's kind of roundabout. Can you repeat the question itself? I got sidelined when Alex was saying things that weren't true. The Kona Reef has let people use that area for 40 years. There is a shoreline setback variance, and in that variance a settlement agreement states that there is a 10-foot easement along the full length of the property that people use. There is also a statement that they would maintain it, as long as the Kona Reef was in existence, for the benefit of the public. So (inaudible–loss of sound connection) kind of thing there, you know, how could we possibly take away this after 40 years? The other thing is Alex mentioned, you know, planting naupaka, etcetera, etcetera. Zendo Kern, Director Kern, was there, he saw that there were only two places on the southern end of the, in the area that we want to build the structure, that the ocean was even accessible. The other areas had naupaka and other plants already in place. So to say that we should put naupaka, etcetera, you know, the alternative, that stuff is already there. A site visit would show, you know, what's there and what's not there. CARR SMITH: Mr. Pieri 18 EXHIBIT A VITOUSEK: Thank you. One thing I do want to add here is, Mr. Pieri, I would appreciate it if you would be more respectful of the Planning Department staff. I know they are doing their best job and, you know, they are entitled to their expert opinion. KERN: And just a(indiscernible—echo) VITOUSEK: Go ahead. KERN: Thank you. To that point, my hope here, and I think most folks know me, I'm a try-to-find-a-balance guy, work-together guy, try to find a way forward. That's what I would like to try to maintain here as well that, you know,we can work together in a manner that's positive. What has been in the past is in the past. Let's move forward in the best possible manner we can. That's going to be the stance of the Planning Department, period. Thank you. VITOUSEK: Commissioner Carr Smith, are you, do you have any further questions? (No audible response) Commissioner Kealoha, any questions? (No audible response) Okay, I have a few questions. Mr. Pieri, the comment that you made about the AIS being taken care of, is that, did you receive an approval of the archaeological inventory survey from the State Historic Preservation Division? PIERL (Inaudible—microphone on mute) VITOUSEK: You are on mute. PIERL I just got an email yesterday from Sean and Susan Lebo finalizing the situation. And I can forward the email, I can print it and fax it, I can do whatever you want, but, yeah, the situation with the SHPD is resolved. And I would like to say that when misstatements of fact are made, the rest of the commission hears these misstatements of fact. They have to be corrected, or this is not an open meeting. Thank you. VITOUSEK: Again, the question is whether you received approval of the archaeological inventory survey in a form of official correspondence from SHPD. (No audible response) Alex, go ahead. ROY: About two days ago we received a letter from State Historic Preservation Division, which did determine that no historic properties would be affected, and that the AIS was accepted. But that was completed only a couple days ago. VITOUSEK: Thank you. My next question would be, Mr., to I guess a combination of Director Kern and Mr. Pieri, I see the settlement agreement that was established after the shoreline setback violation, but also we had correspondence indicating that the easement was never formalized, the public access easement wasn't formalized. Is there a formal public access easement over this space? 19 EXHIBIT A KERN: Not to my knowledge, but I'll defer to Alex; he's got a lot more technical data on this. ROY: I have not, staff has not come across any formal deeded easement in perpetuity, no. VITOUSEK: Mr. Pieri, go ahead. PIERL I have (indiscernible–echo)that gives that easement to the county, or to the public. VITOUSEK: Now, is that something that our corporation counsel can weigh in on and let us know? Because I believe it's important to the consideration of this project whether or not there is, this is formally dedicated to public space or not. HALL: I would have to see the document, so if you could forward the document to the department, I can review it. VITOUSEK: Is the document included in our submittal under the settlement agreement. PIERL No, the document(indiscernible–echo) included in the application (indiscernible– echo) SMA and SSV(indiscernible–echo) VITOUSEK: Yes, I think I'm looking at it now, you know, I just want to hear from our attorneys and our staff that this is existing. It's in the application, variance application, portion directly after the section on the settlement agreement. Things don't have page numbers, so I can't easily refer you to it. (Pause) Has everyone been able to find that? It's a description of the lateral access area. HALL: What section of the document? Like halfway (indiscernible–echo) VITOUSEK: Roughly one-third into it. I mean, I guess it's besides the point, if we, if our staff hasn't been able to review the material in this submittal, it seems as though we are not at the point where we are capable of making this recommendation. You knowI will continue—I believe that what we are bound by is reviewing the variance pursuant to Chapter 205A-46. Subitem (8) indicates that the private facility must not affect beach process resulting in flanking shoreline or artificially fixing the shoreline,provided that the authority may consider any hardship that will result to the applicant if the facilities or improvements are not allowed within this area. So, basically, as it is now, I don't believe that we have enough information on the flanking and the beach process based on the information that's been provided. We need to have information that can provide us with that. Additionally, it indicates that private facilities or improvements this is Subitem (9)—may artificially fix the shoreline,provided that the authority may consider hardship to the applicant if the facilities and improvements are not allowed. So, looking at the applicant's erosion study—and I just want to ask, Mr. Pieri, if you are in agreement with the findings of the erosion study that you presented. PIERL I'm not the expert or don't claim to be expert, but when someone is paid to, someone is paid to do something and they had the credentials,then I'm bound to believe what they say. 20 EXHIBIT A Again, I would defer because when I asked Alex Roy if I had Chip Fletcher testify at this hearing in favor of the project, if that would make any difference, I was pointblank told that, no, that would not make any difference. So (indiscernible–simultaneous speech) VITOUSEK: Again, Mr., Mr. Roy is entitled to his professional opinion. It's the PIERL It was not Mr. Roy's (Indiscernible–simultaneous speech) VITOUSEK: Commission's decision—hold on the Commission's decision is the decision, is the deciding body here, so we have to weigh information from Mr. Roy, from you, from any applic any testifiers, but there are none today, so all that is going to be considered by us. And in the Planning Department they are going to make their best negotiation they can, but it's up to us to make a final decision. So if we are to accept the recommendations of the erosion study, we cannot justify a hardship because of the fact that the erosion study identifies that there is no significant erosion in this area. You know, if they are talking about six inches of erosion over the past 40 years, then the wall itself will take away more of the property than would happen in the next 120 years under the current erosion rate provided by your consultant. To me, this is not a matter of, you know, needing additional information. Based on what we have here, I would feel like there is considerable information to identify a lack of hardship on the part of the landowner to necessitate hardening the shoreline in this area. Go ahead, Mr. Pieri. PIERL (Inaudible–microphone on mute) JACKSON: Mr. Pied, you are on mute. PIERL Thank you. The erosion report, again, was done in 2016. As I previously said, the county was notified of damage from Hurricane Barbara in 2019, September of 2019. The concern is both. This is a dual-purpose wall. It is to cut down on erosion, but since we can't put it exactly along the shoreline, anything, of course, on the mauka [sic] side of the wall may become eroded. But these very south end of it, we are really concerned with loss, you know, tsunami or hurricane waves, of loss of structures, you know, if the, like, you know, there is no doubt in my mind that hurricane waves or tsunamis could just like it could clear the face of the wall, if the wall was there—could undercut a four-story structure. VITOUSEK: Okay, I don't believe that, from geological perspective under 205A, that the protection against hurricanes and tsunamis is an appropriate threshold for shoreline hardening. If we use hurricanes and tsunamis as our threshold for protecting the shoreline, there would be one massive stone wall, or seawall, across the entire coast, because the possibility of a tsunami overtopping a one-foot retaining wall or an at-grade retaining wall would be the same as if the wall is not there. Looking at threat assessment, you know, the threat assessment provided in the EA provides the same level of threat from a volcano as it does from tsunami. And, you know, we are not having a discussion about creating a massive berm on the mauka side to protect the property from a volcano. In the event of a catastrophic tsunami or hurricane, the loss of the small amount of sediment in front of Kona Reef is going to be a very small problem considering the rest of the effects on the Kona coast. I believe that, again, we have not crossed the threshold to establish a need for this structure when having no, no structure at all over the last 40 years has 21 EXHIBIT A led to only six-inch change in shoreline erosion. I think that's normal beach process that's going to have to play itself out. Mr. Pieri. PIERL The area above the pahoehoe shelf itself may have only had that foot or two-foot or six inches or whatever erosion in the past 40 years. You can notice that by the fact that the palm trees are still there. The south end that we are concerned about, for 35 years there was some huge boulders that sat in front of that area. The state mandated that those boulders be removed. Those boulders protected that area just as the boulders that remained. Because they were on the county side of the property line, we weren't required to remove those. But those boulders protect the beach. The boulders that were on the end and the concrete overpourI must say there was a concrete overpour there behind the boulders protected the south end of the property for all that time. The other thing is is there were two sections of low rock walls in the northern half of where the proposed structure is to be. Those walls also protected from erosion for 30-plus years until tsunami of 2011 dislodged one of them and then took it out on the shelf, and it had to be removed. The other one remained in place, again,which was only about a 16-foot section, but remained in place until the state required it be removed for a shoreline certification. So reason that there hasn't been that erosion, or that there's only been six inches of erosion, is because we haven't, you know, because it was protected prior to that, and since then we haven't had any of those major, except for Hurricane Barbara, August of 2019, we haven't had any major occurrences that will wash the material away, but,you know, with sea level rise (indiscernible— echo) that's going to happen. VITOUSEK: So, I hear you there, I hear you there. All of that is information that should be included in the erosion study that would justify the need for shoreline hardening, because the erosion study that was provided to us indicates that there is no erosion happening, and that the shoreline is stable, and that there is no need in my opinion to harden the shoreline. A further erosion study would also indicate whether there has been cross-shore drift from south wells pushing that sand up into the project area because, you know, and you may not see it, but this area of sand in front of the Kona Reef is one of the bigger sand deposits in Kona. If you look at the Google Earth, you'll know what I'm talking about; there are not a lot of areas of sand deposits on the Kona coast, and this is one of them, and it needs to be protected. The sand deposit identified underneath the imported fill is equally important in maintaining beach processes. So, you know, with that, I would like to entertain a motion from any of the commissioners so that we can move forward to discussion. Commissioner Van Pernis. VAN PERNIS: First, I'd like to remind Mr. Roy that the lawn is an improvement just like the buildings are, and if this affects that improvement, it's legitimate. Secondly, I would like to, before making a motion,point out as a former Kailua Village Design Commissioner, this building is, or this project is, essentially commercial within that area, and all the other, or there are many other commercial areas, there are walls. I am going to make a motion to defer this matter generally, not to a specific date, generally until the Planning Department, through the commission, and the applicant have had adequate opportunity to provide all the updated information necessary for recommendation. I don't think the application is complete and current, and I think the Planning Department has said that there is 22 EXHIBIT A a lot of information that is additionally necessary. In following up what Ms. Carr Smith said, I think their information should include what effect this might have on the beach park. I think the project is necessary to protect the property and the improvement, including the lawn. VITOUSEK: There is a motion made by Commissioner Van Pernis to defer this agenda item to a later date. Is there a second? KEALOHA: I'll second Mr. Van Pernis's (echo) VITOUSEK: We have a motion by Commissioner Van Pernis, second by Commissioner Kealoha. I'd like to open it up to discussion by the commissioners. Commissioner Newberg. NEWBERG: Thank you, Chair. As far as discussion, I think in honor of this beachI mean this is where my family learned how to surfI think in honor of the owners of Kona Reef, that if there is found to be the need to provide something to protect that area, that would be sufficient, and I'm not sure if we have the information at this time. I'll be in support of deferring. VITOUSEK: Commissioner Kealoha. KEALOHA: Yeah, I'd like to echo that. You know, in looking over the proposal, on one end they are saying that there is no erosion, and the other end they are putting on, they are requesting a wall to prevent erosion. I don't think it's a great leap to see in a few years that this wall will become a seawall, even if it's subsurface today. So, as we move forward in our community, we are going to have to come up with more creative solutions beyond these hard wall structures that move water into these bays. And it's unfortunately, it's unfortunate that they are coming before us now, before new technologies have been put in place, but I don't think the information provided and where we are at todayI don't think we could move forward as is. So I would vote to defer until more discussion has been offered. VITOUSEK: Commissioner Carr Smith. CARR SMITH: Yeah, I support the deferral. I just wanted to note that we have two applications here, two agenda items, and we need to vote on them separately, so I think the first one on the list was the Special Management Area Permit number 20-000076. VITOUSEK: Commissioner Van Pernis, would you like to amend your motion to reflect the specific agenda item? VAN PERNIS: Yes, I'd like to have the motion either concern both matters or that the same motion be made for the second matter if this motion only applies to the first. VITOUSEK: Sure,procedurally, we have to take them one at a time for each agenda item, for each permit. So we'll deal with the SMA first, and then if that is successful, we can proceed with a similar motion for the shoreline setback variance. Are there any other topics of discussion from the—Commissioner DeFranco. 23 EXHIBIT A DEFRANCO: Yeah, I think one of the important points that I heard Mr. Pieri say was about the safety of people walking on an unstable ground; if people are walking across the front of the beach and it's eroded underneath of it, that people could fall in. I haven't inspected the site, so I don't really know how severe that is, but, well, I just thought that was an important point. VITOUSEK: Okay, I will say that I have some, you know, pretty big reservations about this. You know, calling this anything other than a seawall would be inappropriate. You know, having originally reviewed this application with SHPD in 2011, the application came in as a seawall and was reviewed as a seawall. Because this is a seawall. A seawall in 10 years is the same thing as a seawall now if we are permitting it now. And we can't think of it any other way than a shoreline hardening structure that is going to serve the purpose as a seawall. Given that, we have to consider it under the criteria that's given to us for Chapter 205A in the request of the variance. And under the current application, the criteria needed to allow this variance has not been met. So, to me, whether it's a denial of this application or deferral and allow them to come in with a new application, you know, to me, that's procedural and it's sort of irrelevant. The point is that the existing application is inadequate in establishing the need with which we have in order to issue a variance for a shoreline hardening structure, which is a big deal here in the State of Hawaii. So we'll have to take that responsibility seriously in considering it, and I'm glad that we all have. So, I mean, in that nature and the nature of collaboration that Director Kern has offered, I'd be willing to give it a chance of deferral rather than a straight-out denial. Commissioner DeFranco. DEFRANCO: Yeah, I just wanted a little more information, too, because in the overheads, it showed all these other seawalls that are along, along the shore. I don't know when they were built, though, to how effective they have been to preventing erosion. You know, he, that particular property looks like the only one that doesn't have a seawall in front of it. Is that correct? Did I see that? VITOUSEK: It looks like that's one of the few properties in the area that doesn't have a seawall. It's also one of the few properties that's adjacent to a sandy beach and has coastal sand deposits, which is important to consider when allowing whether a seawall should be built or not. You know, building a seawall on a pahoehoe shelf where there is no sand deposits will have very little change on beach process because pahoehoe is not erodible surface. Building a seawall over a beach deposit adjacent to highly used sandy beach has a lot more potential for effect on the sandy beach, because the waves can take the sediment that would have naturally been used to replenish that beach and hold it back in order for people to have place to walk on and that kind of thing. And it's possible based on our lack of information that that could affect the beach process. So DEFRANCO: Right, I VITOUSEK: (Indiscernible—simultaneous speech) information, we can't, we can't make the call. DEFRANCO: Right, I agree with the deferral. I'm just questioning for clarity. My understanding (indiscernible—echo) effect on the shoreline. Thank you. 24 EXHIBIT A VITOUSEK: No problem. Any further questions? (No audible response) Okay, seeing none, let's take a roll call,please. ROY: Okay,just to be clear, this is for, to continue or defer SMA 20-000076. VITOUSEK: That's correct. ROY: Commissioner Van Pernis? VAN PERNIS: (Inaudible–microphone on mute) VITOUSEK: I believe it's muted. VAN PERNIS: The motion is not just deferral but deferral until such time as the County and Mr. Pieri on behalf of the applicant have submitted all information those two entities determined to be necessary. KERN: I believe the proper motion would be to the call of the Chair. VAN PERNIS: Mr. Vitousek? KERN: Deferral to the call of the Chair (indiscernible–echo) comes together (indiscernible– echo) VAN PERNIS: (Indiscernible–simultaneous speech) aye. VITOUSEK: I'm a little confused. So we've got Commissioner Van Pernis making a motion to defer until the information can be provided to give the staff what they need in order to make a decision. Is that—that's basically it? Correct? Okay? Are we good with that, and VAN PERNIS: That's essentially correct. VITOUSEK: Okay, and then Commissioner Kealoha, are you still good with that as the second? (No audible response) Okay, good, well, let's proceed with the roll call on that. ROY: Okay, so Commissioner Van Pernis said aye. Commissioner Kealoha? KEALOHA: Aye. ROY: Commissioner Carr Smith? CARR SMITH: Aye. ROY: Commissioner DeFranco? 25 EXHIBIT A DEFRANCO: Aye. ROY: Vice Chair Newberg? NEWBERG: Aye. ROY: And Chair Vitousek? VITOUSEK: Aye. ROY: Commissioner Yates is excused. Motion to continue or defer, six votes. VITOUSEK: Okay, may I hear a motion on the shoreline setback variance, item number 20-00000 [sic] 12? Commissioner Carr Smith. CARR SMITH: I move that the application for the shoreline setback variance, number 20-000012, be deferred in order to allow the applicant the time to provide the Planning Department with the additional requested information to include, but may not be limited to, revised erosion study and report, conduct an alternative analysis of the proposed wall, and the study regarding modeling and flanking of the beach area next to the property so that the director can then make a revised recommendation. VITOUSEK: Commissioner Van Pernis. VAN PERNIS: Second. VITOUSEK: Was that a second? VAN PERNIS: Second. VITOUSEK: Okay, cool, awesome. Any discussion on that? (No audible response) Thank you for the very nicely worded motion, appreciate that. Seeing no discussions, now let us do roll call. ROY: Okay, this is to continue or defer Kona Reef Shoreline Setback Application 20-12. Commissioner Carr Smith? CARR SMITH: Aye. ROY: Commissioner Van Pernis? VAN PERNIS: (Inaudible—microphone on mute) VITOUSEK: It's on mute, Commissioner Van Pernis. VAN PERNIS: Aye. 26 EXHIBIT A ROY: Commissioner DeFranco? DEFRANCO: Aye. ROY: Commissioner Kealoha? KEALOHA: Aye. ROY: Vice Chair Newberg? NEWBERG: Aye. ROY: And Chair Vitousek? VITOUSEK: Aye. ROY: Commissioner Yates is excused. Motion passes, six votes. VITOUSEK: Okay, thank you very much. The hearing ended at 12:11 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 27 EXHIBIT A