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HomeMy WebLinkAbout2021-03-18 Leeward Exh A (AMEND REZ 04-012) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MARCH 18, 2021 A regularly advertised hearing on the application of ERNEST & ELIZABETH YOUNG (AMEND REZ 04-000012) was called to order at 9:51 a.m. via live-stream 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), Jean Campbell, Esq. (Counsel for the Planning Department), Zendo Kern (Planning Director), April Surprenant(Planning Program Manager, Long Range Division), Tracie-Lee Camero (Planner), Maija Jackson (Planning Program Manager), Alex Roy (Planner), and Noriko Sauer (Leeward Planning Commission Secretary) APPLICANT: ERNEST & ELIZABETH YOUNG (AMEND REZ 04-000012) Application for an amendment to Condition C (Time to Secure Final Subdivision Approval) of Change of Zone Ordinance No. 04-149, which rezoned 1.8628 acres of land from Agricultural-5 Acres (A-5a) to Single Family Residential-20,000 Square Feet(RS-20). The property is located at the southwest corner of the intersection of Mahilani Drive and Mamalahoa Highway, Kalaoa 1st& 2nd, North Kona, Hawaii, TMK: (3) 7-3-011:068. VITOUSEK: New Business, the applicant is Ernest and Elizabeth Young, AMEND REZ 04-000012, application for an amendment to condition C, time to secure final subdivision approval, of Change of Zone Ordinance number 04-149, which rezoned 1.8628 acres of land from Agricultural-5 acres, A-5a, to Single Family Residential-20,000 square feet. The property is located at the southwest corner of the intersection of Mahilani Drive and Mamalahoa Highway, Kalaoa I" and 2nd, North Kona, Hawaii, TMK(3) 7-3-011:068. Staff presentation will be by Tracie-Lee Camero. Tracie, would you be able to take it away? CAMERO: Yes, thank you so much. Allow me to just share my screen. Are you all able to see my screen? (No audible response) Great. Okay. Good morning, members of the Leeward Planning Commission. As the chairman had mentioned, this next presentation is for amendments to the change of zone ordinance, 04-149, for Ernest and Elizabeth Young. The subject property is located within the North Kona District. On your screen you will see the subject property identified by the red pointer. The top portion of the map is heading in the 1 EXHIBIT A direction of Waimea, and the bottom portion of the map is heading in the direction of Kealakekua. Other important places in the area include the Kona International Airport located just makai of the subject property. The current applicants purchased the property in 2016 and have been diligently working towards complying with the conditions of the change of zone ordinance and pending subdivision. The applicants were made aware that they were out of compliance with time conditions of approval. To rectify this oversight the applicants are requesting a five-year time extension to come in and complete the conditions of the ordinance. Reasons for the request: Ordinance 04-149 went into effect on December 8, 2004. At the time of the ordinance the previous landowner Lilian Mahi proposed to subdivide the subject parcel into three lots, with at least 20,000 square feet in size. Condition C of the ordinance allowed for the applicant five years to secure final subdivision approval. Despite initiating the subdivision process in 2005, Ms. Mahi was unable to complete the requirements of the tentative subdivision approval by the time she had passed away in 2008. The applicant had been diligent in receiving eight time extensions through their subdivision time approval, with the most recent being March 30, 2015. Ms. Mahi's children were unable to complete the project and subsequently sold the property to the new applicants Ernest and Elizabeth Young. During the process of working to comply with the conditions of the rezone, Ernest and Elizabeth Young were made aware that they were out of compliance with condition C of the chance of zone ordinance. And to rectify the oversight the applicants are requesting a five-year time extension to secure the final subdivision approval. On your screen you will see the subject property identified in the red outline. The subject property is located on the southwest corner of the intersection of Mahilani Drive and Mamalahoa Highway. The top portion of the map is heading in the direction of Waimea, and again the bottom portion of the map is heading in the direction of Kealakekua. Mamalahoa Highway is located to the right of the subject property and is considered a minor arterial road that serves much of the Kona district. Mahilani Drive is located to the top of the subject property, which provides access to the subject property, as well as other lots in the area. It should be noted that Mamalahoa Highway is owned and maintained by the state Department of Transportation, and Mahilani Drive is owned and maintained by the county. The county zoning for the subject property is RS-20, and surrounding properties in the areas are zoned as Agricultural and Single Family Residential. The state land use designation for the subject property is Urban as indicated by the pink color, and some of the surrounding properties are Agricultural, which is indicated in the green color. The General Plan Land Use Allocation Guide Map designated the property and much of the surrounding area as Low Density Urban. Across the Mamalahoa Highway and mauka of the subject property, which is shown on the left of your screen, is the white area which is designated as Extensive Agriculture. 2 EXHIBIT A This is the Kona Urban Area map. The subject property outlined in white on this slide is located within the Kona Urban Area, which you can see is delineated by the red line that stretches from the top of your screen to the bottom and almost follows in the same direction as Mamalahoa Highway. Here is an image of the applicant's proposed site plan. For reference Mamalahoa Highway is located at the top of the screen and Mahilani Drive is located here on the left-hand side. Again, this is the proposed subdivision site plan that was submitted by the previous landowner in 2004 to allow for the three proposed lots. Here is an aerial photo of the subject property, which is outlined in red and showing the surrounding area. To the left of the property you have Mahilani Drive, above the property you can see Mamalahoa Highway, across the Mamalahoa Highway you can see the Holy Rosary Catholic Mission Church. To the right of the subject property is the Kingdom Hall of the Jehovah Witness Church. You can see on your screen a driveway to the subject property coming from Mamalahoa Highway, as well as a driveway to the property that comes from Mahilani Drive. This is a view which shows the Mahilani Drive intersection with Mamalahoa Highway facing south on Mamalahoa Highway. The subject property is to the right corner of the photo. This is a photo showing the access off of Mamalahoa Highway. The upper left photo is a view of the subject property's Mamalahoa Highway frontage, which is shown on the left. The lower right photo is showing the view of the existing access point to the subject property from Mamalahoa Highway. Much of the subject property's frontage on Mamalahoa Highway is covered with vegetation, as you can see in some of the photos. These photos show the views from Mahilani Drive. The upper left photo is the view facing mauka towards Mamalahoa Highway with the subject property located on the right. The lower right site photo is showing the view of the existing access point to the subject property from Mahilani Drive. The planning director has proposed an amendment to condition D related to access. Now, after you received the background and recommendation, the planning director received comments from the state DOT that brought forth information that required the following amendment. To understand this amendment it is important that I address key points in the history for the subject parcel with you on this slide. In 1979 the previous landowner was granted an agricultural access to the subject property from Mamalahoa Highway by the state Department of Transportation. During the initial change of zone process in 2004, the Planning Department received comments from the Police Department, as well as the state DOT, requesting that access to the property from Mamalahoa Highway be restricted and instead require all access to the property be taken from Mahilani Drive. Based on these comments the planning director and the Planning Commission recommended condition D in Ordinance number 04-149 to require all access to the subject property be taken from Mahilani Drive, which was reflected in the draft ordinance that was sent to the County Council. Based on our research it appears that DOT's comments may not have been transmitted along with the draft ordinance to the County Council, which subsequently 3 EXHIBIT A amended condition D to allow the subject property access from Mamalahoa Highway. Condition D was amended on October 19, 2004, to read as you see on the bottom of your screen. Now, throughout this process, this amendment process, DOT confirmed their prohibition of an access to Mamalahoa Highway, as the property no longer qualifies for an agricultural access since the property was rezoned to Single Family Residential zoning and has initiated the subdivision process, as well as received the state land use boundary amendment. As DOT has the final authority over driveway accesses from state right-of-ways, the planning director has changed his recommendation to amend condition D to state the following: "Access to the proposed lots shall be from Mahilani Drive. Access shall meet the requirements of the Department of Public Works. The existing driveway onto Mamalahoa Highway shall be removed prior to issuance of Final Subdivision Approval." With that, the planning director is recommending a favorable recommendation be forwarded to the Hawaii County Council on amendment to Ordinance number 04-149, based on the planning director's recommendation with conditions. That concludes my presentation, and if there are any questions, I can open the floor to them. Thank you. VITOUSEK: Thank you. Are there any questions from commissioners? Commissioner Van Pernis. VAN PERNIS: This proposed project is in my district, and I drive that road Mamalahoa everyday twice. I'd like to ask Ms. Camero or Mr. Kern: How many new houses have been built since the original 2004 application in the subject subdivision up to Makalei and Kaloko Estates, in other words, how much has the traffic increased? I'd point out from my experience that it's been dozens and dozens of new houses and cars, and there are times, pre-COVID and starting again now, where Mamalahoa is stopped and backed up with traffic. Now, I don't begrudge these people their subdivision, but why did the county Planning Department not know, or not realize, on their own that access from Mamalahoa was impossibility and had to be eliminated? KERN: Thank you, Mr. Van Pernis. Director Kern here, I'll take the question. We do not have the access, or the dataI'm sure we have the access to it—we haven't had, we don't have the data that tell you what, how many homes are built up in there, so we are not going to be able to provide that with you today. There was a history that Ms. Camero did layout on why that driveway was allowed there at the time; at the time it was an agricultural driveway for, based on agricultural use. Currently, we are reviewing it as it is now, with a favorable recommendation, with conditions that are present. VAN PERNIS: Very good, but it doesn't answer the question of why didn't the department review the increased traffic on Mamalahoa and originally make a recommendation of no access from Mamalahoa with this residential subdivision when—instead of waiting for the state to point that out. And I'd also point out that there have been two, maybe three, traffic studies on Mamalahoa since this 2005, or 2004, approval; why weren't those reviewed? VITOUSEK: It seems to me that the department got that information in time and amended their recommendation in time to provide the recommendation of it; I think it's appropriate. So, we have what's in front of us, and the recommendation is that all traffic come off of Mahilani Drive 4 EXHIBIT A for now. So, you know, I think we are at a good place to continue discussion, if there is anything else. Yes, Commissioner Van Pernis. VAN PERNIS: I agree with you, Mr. Vitousek, and I don't begrudge these folks subdivision. But we rely upon thorough investigation and informed recommendation from the Planning Department and the planning director, not from some state agency. So I think there (indiscernible—simultaneous speech) KERN: So, yeah, so, okay VITOUSEK: I think KERN: Mr. Van Pernis, Mr. Van Pernis, we send out an application to all various agencies for their comment, we receive those comments, and we put them into a background report and a recommendation; that's exactly what's happened on every single application over the last 20 years, that is exactly what happened here. Tracie has done an excellent job, and the Planning Department tries our very best to meet the needs of our community and our applications. Thank you very much. VITOUSEK: Yeah, so we got, they got, I think they got the recommendation right, you know, they've taken into account the effects and, you know, I agree that sometimes it would be nice to have things a little further in advance, but I think we got there at the end of the day. So, is there any other questions? Go ahead, Commissioner Van Pernis. VAN PERNIS: This ordinance, the original ordinance, expired in 2009. What, why wasn't there a new application, rather than an amendment to a 15-year-old expired ordinance? VITOUSEK: I mean, we covered this many times; when it comes to zoning, the zoning is tied to the land, and so the zoning stays with the land, the ordinance is considered stale, and it's up to the Planning Department to determine whether that zoning is appropriate, which it appears that they believe the zoning is appropriate, so in that case it's simpler in order to extend the zoning, rather than go into the process again. I think it's appropriate, and this is the pretty standard practice at this point for stale ordinance. Commissioner Carr Smith. CARR SMITH: Thank you. I wanted to commend Tracie for her presentation; I thought it was very thorough and had some great history and stories, which I appreciated having those inserted there, and it was very pretty, too. Thank you. And, yeah, Mr. Van Pernis, I don't really understand why we want to question the department on this. You are asking questions that have already been cured and, like Mike said, we've got to the place we wanted to get to, and that's what we should be talking about, not what-ifs, so that's my input. Thank you, Tracie. VITOUSEK: Okay. Commissioner Van Pernis. VAN PERNIS: Yes, in regards to the new proposed ordinance amendment, it states in one condition that the subdivision must be completed within five years. Is that sentence incomplete? Because it doesn't say what happens if that five-year requirement is not met. And I don't 5 EXHIBIT A propose that the zoning be lost, but that after a five-year, another five years, where we've gone 20 years without subdivision, that a new application be appropriate. So I would ask that condition, or the new amended ordinance, has any consequence if the five years is not met, or it does mean nothing. CAMERO: SoI can answer that, Commissioner Van Pernisso, going down to condition O, if the five years aren't met, the applicants will have to come back to the Planning Commission and go through this process again and request for an additional time extension at that time, if they can't complete any of the final subdivision. VAN PERNIS: And that's with no additional conditions or no penalty whatsoever? VITOUSEK: At that time, any additional conditions could be imparted upon review of the secondary extension just like we are doing now; the, you know, the ordinance has become stale, we are taking a look at the zoning and determining if there are any updated conditions that need to be put in place. That's kind of the idea of what's happening here and that will be what will happen in the future. I feel like condition O could be updated to include that it would be before Planning Commission review, as well as being submitted to the County Council, for appropriate action. Would that make sense to everybody? CAMERO: Yes, that would. Typical Planning Department process is that before this ordinance will go to the County Council, it would come in to the Planning Department and the director would direct it to the Planning Commission to make a recommendation on it, and we would essentially start this all over again, as well as what I just kind of did. VITOUSEK: If—okay, Commissioner Van Pernis, go ahead. VAN PERNIS: Why can that be stated in the amended ordinance? VITOUSEK: It will be, it will be stated as condition O of the recommendations to the Planning, to the County Council, and then it will be up to them to include it in their ordinance; we are purely a recommendary body to the County Council for a zoning change or time extension. So we can make the recommendation in our conditions, and then it'll be up to the County Council to incorporate that or not. I would actually like to—is there, are there any other questions from the commission? (No audible response) Okay, I would like to ask a couple of questions, more, they are a little bit more general, so you'll have to pardon me for that, but I just thought this was an interesting example where you have a long-time kama`aina family in the Mahi's who were attempting to subdivide for family purposes, and obviously ran into some issues with being able to compete that subdivision, and I just want to take a second to try to take a look at the barriers that prevented them from having, being able to complete the subdivision and allow their family to take over it. Is there any indication as to why the original applicant was unable to complete the requirements? CAMERO: Not that I know of. I know Ms. Mahi, she immediately came and she started the subdivision process one year after the ordinance was approved; however, she did pass away in 6 EXHIBIT A 20- in 2008, approximately around one year before she could have come in for the administrative time extension. I know she submitted the subdivision application, she got tentative subdivision approval, and her as well as her heirs have been diligent in receiving time extensions to continue the process. I'm not too sure where they stand right now. I think maybe the applicants, we have them in the meeting right now, maybe they can kind of direct us as far as what was completed for the subdivision process. VITOUSEK: That will be the question is what conditions of tentative subdivision approval were hanging them up, what was not met in that regard. JACKSON: Commissioner Vitousek, I don't think we have that information at hand. We could take a recess and research it and get back to you. But we don't have it at hand VITOUSEK: No, that's (indiscernible–simultaneous speech) I just, you know,just looking at it and, you know, looking at one of the conditions being the fair share contributions, and, you know,just for me, my own education purposes, trying to understand where that comes into play and, you know, seeing how potentially $9,000 per lot fair share contribution for a family trying to make a subdivision for their kids could hang them up on not having funding in order to do that. And I just basically, you know, trying to figure out if the numbers on fair share contributions are uniformed across the board for the entire island or if they are different depending on the value of the property. I mean, looking at this where we are asking for a fair share contribution of$15,000 per lot, there are parts of the island where property is significantly cheaper than $15,000 and, you know, are we going to ask someone in N5'51ehu who is subdividing to make the same contribution that would be worth more than the value of their lot. It seems to me like this has pretty significant consequences on the ability to create affordable housing. So I just was hoping we could have a short discussion on that as it relates to this case. KERN: I'll chime in here, Mr. Chair. Yeah, so when a fair share, it is basically charged evenly across the island for any application whether it was coming in in Ka`u or in Hawi. There is the ability for the Council to amend it or adjust it. The fair share increases every year by the Honolulu CIP, Consumer Price Index, CPI—keep on messing those two up—and so that's how it goes from, you know, increases, increases over the time. And it's basically to offset impacts, and it originally derived from impact fee ordinances that were proposed that never went anywhere, and then the Council started to kind of implement them, and it was kind of here and there. And so during beginning of the 2000's under Chris Yuen, he basically put them in as conditions within any rezoning ordinance, and then they've kind of lived there ever since, as you move through. Now, if you are doing Agriculture land, that doesn't necessarily come up, but on Residential it does. And the concept is is that you are basically creating more lots, you are creating more density and there's some type of impact to the area, so those fair shares, the fair share money is spent within the geographical area, has to be within the judicial area, has to have a rational nexus, and has to be used for a capital improvement type of projects. So what we are seeing now is, say, for like an affordable housing project that was committed to, say, 100 percent affordable or a portion thereof, the fair share is generally waived or requested to be waived at that point in time. So there is, there is room for discussion, and I think there is room to potentially look at it a better way. 7 EXHIBIT A VITOUSEK: So, to follow up on that, the fair share contributions are established as condition within zoning ordinance and not as a result of county code. KERN: That's correct. VITOUSEK: So it's a case-by-case assessment then as to whether or not they apply because it's not codified. KERN: It's a case-by-case, but it's almost treated as if it were codified; so in every single rezoning ordinance for re-that's creating additional residential lots, we would have fair share in there. And so for example, if there was a rezoning ordinance that was done, you know, 25 years ago that didn't have it at the time and it was coming in for a time extension like this, then the fair share conditions would be put in there. But you are right, it's not codified, but it's essentially treated as if it were, because it's in every single one. VITOUSEK: Thank you. Commissioner Van Pernis. VAN PERNIS: Is, Mr. Kern, is it the county's position that how much money an applicant has and how they spend it a reason beyond their control to get a time extension? KERN: I'm not exactly sure if I understand that question, but when an application comes in for a time extension or even a new application, we assess it based on the merits of the application, the General Plan, the CDP, and every single element that goes into making a land use decision, and base the recommendation on that. VAN PERNIS: Can you please answer the question of whether KERN: I'm working on understanding it. VAN PERNIS: The question is a circumstance beyond the control of an applicant is required for a time extension, correct? KERN: Circumstances beyond their control is ayes, I believe that's, yes. HALL: Are we still speaking about the application at hand? I just want to make sure that we are staying on track, guys. VITOUSEK: Yeah HALL: Are we referring to any kind of hypothetical situations or are we talking about this specific application? VAN PERNIS: Don't interrupt me. I'm asking HALL: What was that, Mr. Van Pernis? 8 EXHIBIT A VAN PERNIS: Don't interrupt me, Ms. Jackson [sic]. KERN: Mr. Van Pernis VITOUSEK: Commissioner Van Pernis, you are going to have to be more respectful to staff and to our corporation counsel. It is her duty to inform us of the agenda and that we are on track with Sunshine Laws and to be, you know, she's doing her job and please be respectful, and if you'd like to direct something to her,please request from me to have the floor in order to ask a question of her. We have to follow rules of order in this meeting, and everything has got to go as the way it should, okay? Are there any other questions VAN PERNIS: (Indiscernible—simultaneous speech) VITOUSEK: Hold on. Are there any other questions specifically about this agenda item for couns- for staff? Okay, last one, Commissioner Van Pernis, and then we'll move forward with the applicants. VAN PERNIS: My question now is as before, concerns this application. What circumstance beyond the control of the applicant justifies this request for an extension? And, is their financial condition, is the Planning Department taking their financial condition as a reason for circumstance beyond their control? KERN: Are you referring to this VITOUSEK: (Indiscernible—simultaneous speech) Director Kern, we are addressing the application from the Young `ohana who purchased the property after the ordinance had expired. So, clearly, this is through no fault of their own that the ordinance was expired, because they have purchased the property after the fact that it expired. They are the parry who we are considering. So, with that, we will move forward with the applicant's presentation. We have Ernest and Elizabeth Young. Are you guys available? (No audible response) Okay, hey, how's it? MR. YOUNG: Yep, how's it? VITOUSEK: Right on. Please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Leeward Planning Commission? MR. YOUNG: Yes. MRS. YOUNG: Yes, I do. VITOUSEK: Okay, thank you. Would you please state your name and area of residence? MR. YOUNG: My name is Ernest Young. This is my wife, Elizabeth Young. And we live on the top of Mahilani Drive. 9 EXHIBIT A MRS. YOUNG: Kailua-Kona, Hawaii. MR. YOUNG: Yeah, Kailua-Kona, Hawaii. VITOUSEK: Right on. So have you guys received the background and recommendations report from the Planning Department? MRS. YOUNG: Yes. MR. YOUNG: Yes. VITOUSEK: Okay, do you agree with the planning director's recommendation, including the revised conditions? MR. YOUNG: Yes. VITOUSEK: Okay, right on. Would it be possible for you guys to give us a little bit of background on yourselves and then on, give us a presentation on the application today? MR. YOUNG: Okay, well, I was born and raised here. I grew up on Mauka next to Captain Cook, and currently we are business owners in town; we have a gallery. I am an artist, and my wife is a broker. And we have three wonderful kids. And the reason we are trying to rezone is kind of the same reason the Mahis did; it's to leave something for our children later on. So, and then—(to Mrs. Young) they are asking about the application as well. MRS. YOUNG: Did you want us to give you any history from what we've done so far, or what information? I wasn't sure. VITOUSEK: That'll be terrific. Yeah, if you can give us a little bit of background, what you guys have done so far and any other information that Ernest gave us on what you are hoping to accomplish, is super helpful. But, please go ahead. MR. YOUNG: Okay. MRS. YOUNG: So, yeah, so our hopes is to finish what Lilian Mahi started. When we purchased the property, that was kind of one of the hopes we could, to be able to leave it behind for our kids. We put together the packet to—what we've learned so far is we pretty much need the time extension. So we did talk to the Water Department, and there is only one meter that needs to be installed, and we were able to be granted a time extension on that. And now just to finalize the subdivision is just the five-year extension so that we can go ahead and, of course, address all the different conditions, like you mentioned, the fair share. (To Mr. Young) You want to mention the only new thing is the road? (Low-volume private conversation with Mr. Young) So for us, it was brought up to us kind of new just this past week that we wouldn't have access to the Mamalahoa Highway, because that was in the original ordinance. So that's kind of the new. We were hoping to keep that, but we understand that it doesn't look like it's going to be possible. And we still would like to move forward with access just to the Mahilani Drive. 10 EXHIBIT A MR. YOUNG: Yeah. VITOUSEK: Thank you guys. Are there any questions from commissioners of the applicants? Commissioner Van Pernis. VAN PERNIS: Mr. and Mrs. Young, when is this subdivision going to be completed? MRS. YOUNG: Do we have to hit any buttons, or can you still hear us? VITOUSEK: No, we can hear you, go ahead. MR. YOUNG: Oh, well, if all, if all goes well and everything goes smoothly, as soon as possible. We don't really have any things holding us back at this point. No one can tell the future, of course, but if we move forward and things kind of go the way we are hoping, we will try to have this done, I mean, even within a year hopefully, I mean,just depends. MRS. YOUNG: Prior to five years. MR. YOUNG: But definitely not five years, I mean, we are definitely trying to have this done as soon as we can. VAN PERNIS: Going to ask for, you are not going to ask for another five-year extension? MRS. YOUNG: We can't look into the future. We sure hope not. MR. YOUNG: Isn't it for five years—for now we are hoping to have it done before the five years MRS. YOUNG: Yeah, our plan is to finalize it within that five-year span. We don't have any plans to push past that, but just,just like how we've dealt with COVID this year, we really don't know what the future holds. But, to our knowledge right now, we do not plan to go past that five-year. VAN PERNIS: Are you willing to agree that if you do go past five years, you'll submit a new application for subdivision? MRS. YOUNG: (Low-volume private conversation with Mr. Young) If that did happen and we weren't able to complete this in this five-year span, what would happen to the property? Would it go back to Agriculture, or would it stay in the Residential zoning? Does anybody know? VITOUSEK: It would, yeah VAN PERNIS: My question, my 11 EXHIBIT A VITOUSEK: Hold on, Commissioner Van Pernis, hold on. I think, Director Kern, would you like to take that? KERN: Thank you, Mr. Chair. Yeah, the property would basically go back to the state that it's in right now; it'd still be zoned, but it would be stale, so you wouldn't be able to complete the subdivision. MR. YOUNG: Okay. KERN: And for it to go all the way back to, say, Ag, then the director at that point would have the opportunity to do a planning director-initiated downzoning to bring it back to Ag. VITOUSEK: Basically, the same situation that we are in now. KERN: Correct. VITOUSEK: But, like you said, we are hoping not to get there. MRS. YOUNG: Right, right. VITOUSEK: Yeah. MRS. YOUNG: Do you mind if I mention, or add something? VITOUSEK: Go ahead, of course. MRS. YOUNG: I believe one of the conditions for the Mahis to switch it from Ag to the Residential was to finalize the subdivision, so that's why our goal is to get this finalized. And I wasn't sure how far back it would go, if we couldn't. But absolutely, we are not planning on taking longer than five years, Lord willing. VITOUSEK: Okay. Commissioner Van Pernis. VAN PERNIS: Yes. Could you answer the question, please? Are you willing to have, or to make, a new application, if you don't complete the subdivision within the five years referred to in this amended ordinance? And I want to point out that it's planning director's discretion on whether it goes to Ag zoning, and I for one would be opposed to that; it makes no sense to go back to Ag zoning, it should stay Residential. But I'm asking again, if you'll answer the question, yes or no; are you willing to complete the subdivision in five years, and if not, submit a new application? VITOUSEK: I think that, I think the applicants have stated their intention to complete the application within five years, and they've stated their intention to follow any relevant required procedures thereafter. So I think that's a closed matter. Are there any other questions? Commissioner Carr Smith. 12 EXHIBIT A CARR SMITH: And in addition to that, the conditions say that they have the right to come back for more time, if they need it. So what Mr. Van Pernis is talking about is hypothetical, and it's not what we are approving or disapproving today. VITOUSEK: So, are there any other questions from the, for the applicants from any other commissioners? (No audible response) I have a question. I would like to know if you guys believe that the fair share contributions that are being requested are overly burdensome on your ability to create a subdivision for your family. MRS. YOUNG: Yes MR. YOUNG: Unless—yes—it's a little hefty. When we looked into it in the beginning, it was around, I believe, 12, and they said it was not even too far before that it was 9. And it was kind of funny she said that because I was like, well, 9 would have been better. But, yeah, yes, to answer your question, yeah, it is a little hefty, but, you know, we have faith that, we are, you know, we are going to put our best foot forward and be able to do it whether, you know, it's high or not. But if it, if it, you know, if something could be adjusted, that would be, we would be extremely grateful. I mean,just to help us get through everything, because there is not only the, you know, we have to install water meters and, you know, I've talked to a lot of people that have done this through our business, through the gallery, and they say you never know what can come up, you know, there can be unforeseen things that,you know, cost more money. So, you know, we try to budget, make sure that we are prepared for everything, and we are moving forward, looking good, but, yes, to answer that question, if something could be adjusted to where, you know, it's a little, not such, not so steep, we would really appreciate that, absolutely. VITOUSEK: And, I mean,just to completely clarify, there is absolutely nothing that we can do as a commission in order to adjust that. That would have to be MR. YOUNG: Okay VITOUSEK: from the County Council that would be your next step. MR. YOUNG: Okay. VITOUSEK: But I just want to have that considered, because, you know, when we are looking at creating affordable housing, allowing people who have lived here, grown up here, to stay on the land, to provide land for their families, I think that's a consideration that needs to be discussed. MRS. YOUNG: Absolutely. MR. YOUNG: No, absolutely. 13 EXHIBIT A VITOUSEK: Director Kern, I don't know what our avenues for discussing that are and for forwarding recommendations onto the Council, but I do want to discuss that here for this case. KERN: Yeah, Mr. Chair, I will defer to, may confirm with our corporation counsel, but I believe you folks as the commission would have the opportunity to propose an amendment to adjust that. And if that is confirmed, then I would think the methodology in which you do that would probably be part of that discussion, because each one of the dollar amounts go to specific requirements. So, is it a general overall percentage, you know? But I would want to confirm with the corp. counsel that that is, that that's not an issue. HALL: Hi. Yes, yeah, I mean you guys are basically making a recommendation, right? So at this point you probably would want to think of, you know, so that it's not arbitrary kind of, you know, what are the parameter of that? So you are saying like if it's a family that is just doing a noncommercial type of subdivision with, you know, less than four lots, or something like that. I don't want to put any words in you guy's mouth there; I think the commission can think for itself. But, yes, you have the power to make that recommendation to Council. VITOUSEK: And I agree with your wording there that, you know, the idea for a noncommercial subdivision for family purposes, you know, I think that is very important to be considered, with a small number of lots, three lots. Then figuring out the best way to communicating that to the Council whether it is as a recommendation attached to the—what would it be—condition L, that we believe the county should consider when determining whether fair share application costs apply, whether the commercial nature of the subdivision whether it's been proposed for family estate purposes or not, and determining whether or not the applicant should be responsible. Maija, is that a hand raised? (No audible response) Oh, cool KERN: etiquette. VITOUSEK: Go ahead. JACKSON: Thank you, Chair Vitousek. I just learned how to use the Zoom hand-raise tool. So I appreciate the discussion that you folks are having about this. I just want to kind of throw out that you are the Leeward commission; we also have a Windward commission. And fair share is applied island-wide. So you kind of want to consider that as well, and whether there would be fairness across the board and how it's applied island-wide. For example, if you guys end up giving relief consistently to rezones that come before you for family estate planning purposes, Windward commission may not be doing that. So I don't know if it's worthwhile, if you are heading in that direction to have a discussion at a joint meeting in order to ensure that there is some type of fairness applied towards fair share across the island. VITOUSEK: In my opinion the fairness would be applied if this were actually a codified ordinance instead of being a case-by-case application of fair share contributions. I believe that because it's not codified that we are responsible for reviewing it on a case-by-case basis, and anyone else could be the same until such point that it is codified. For now, I think that adding language to that condition L reflecting what Malia our corporation counsel stated, would be a, would be a benefit, because we are purely providing a recommendation, we are getting a 14 EXHIBIT A discussion going that they will have to continue with County Council, and indicating that this non-codified additional expense reduces people's ability to create affordable housing to provide a family-base subdivision for their children, and it has a regional effect on all of us. So I think it's a good discussion to have and a good discussion for them to carry forward with the County Council. Commissioner Carr Smith. CARR SMITH: Yeah, in an effort to make sure we remain on topic and on this specific agenda item, and also wondering about setting precedent, I wonder if we could just add something general like just a request to consider reducing it in this case. But, yeah, at the same time I think encouraging for the conversation about this, to me, it seems like the best way that this might be adjusted is based on land value, or property value rather. So I think that would be a fair way for fair share to be looked at, but. VITOUSEK: I agree in this case because, you know, this is new and we are taking on a different approach to it, that we have a general request that goes to the Council, and that they have the actual discussion on it because they are the ones that have the power to change any of that. Commissioner Vanoh, sorry, Commissioner DeFranco, go ahead. DEFRANCO: Mike, I just really, Commissioner Vitousek, I really appreciate that you've opened this discussion up. I think it's very valuable to all of us, for the whole island, to have this kind of discussion for families here that want to do something for the keiki and the future generation. So I totally support what Nancy said and putting something general in there, staying on focus of moving forward. Thank you. KERN: And—Mr. Chair, if I may? VITOUSEK: Go ahead. KERN: Yeah, I'd say the options would be, a couple of options, you could offer up an amendment or, again, specifically have that discussion and then point the County Council to these minutes for them to read to understand the discussion and the nexus of this would be another option. VITOUSEK: Okay. Commissioner Van Pernis. VAN PERNIS: Yes. With all due respect to the Youngs and other kama`aina-s, I think we are getting into a very dangerous territory. Discussion can be had, of course, but this needs to be a Council ordinance. How do we, without any financial information on this property and with the Youngs, how do we determine what recommendation we should make? How do we control whether the subdivisions go to the kids or are sold at market value, which in this case are hundreds of thousands of dollars? We'll want to do something for the kama`aina-s, but every developer will claim some sort of kama`aina relationship, if we don't precisely state what the situation is. So I would say that this is very dangerous and should be a matter of discussion with the Council and not be part of this ordinance. 15 EXHIBIT A VITOUSEK: I agree with you, Commissioner Van Pernis, absolutely, that this is a discussion that needs to take place above the planning commission level on a specific project. That being said, I feel like it's our duty to initiate that discussion, and since we have no power to do anything about it, we can make recommendations for amendments to condition L. My proposed recommendation would be that County Council will consider whether fair share contributions apply based on noncommercial subdivision of less than four lots for family purposes, and then we continue on that if it's determined that fair share applications apply, it would continue with the rest of it and it would be the same language. Yes, Commissioner Van Pernis. VAN PERNIS: What family purposes? How do you control the waiver of, or lessening of, financial contributions like this when in the future if lots are sold? What if they are sold immediately after subdivision at market rate, or if they are sold years later? I think it's very dangerous to consider this matter without extended discussion and legal input,particularly in regards to what family purposes. VITOUSEK: Commissioner Kealoha. KEALOHA: Yeah, I would say if we are going to make that recommendation, some stipulation be added that the, you know, similar to home exemption and so forth, if the property is sold within a certain time period, then the back fees would be owed. Because everybody is going to make the claim that they are doing it for family purposes, but there is nothing to preclude them from sale otherwise, so the county would have to have some means of recouping the expected expenses if it turned out to be a flip so to speak. VITOUSEK: I agree with that. MR. YOUNG: Yes, yeah, that makes sense. VITOUSEK: Commissioner Carr Smith. CARR SMITH: I'm not a, I don't think "commercial" is the right word that should be used in there. Commercial would VITOUSEK: What do you CARR SMITH: —mean many other things. What I had jotted down—so this is just another idea—so if condition L could be amended to say that—the last sentence before the breakdown on the numbers—"The fair share contribution shall be as County Council deems reasonable in this situation, which may be less than recommended." It's just general and it's, they will listen to our minutes, and it's just trying to get their conversation going without us really being getting too specific about— VITOUSEK: boutVITOUSEK: Yeah, I mean, it would be, could be, "could be less when considering the merits of individual application." Would that, would that suffice? CARR SMITH: Yeah. 16 EXHIBIT A VITOUSEK: Okay, I'd be good with that language, I mean, I just feel like the important thing is that they have the discussion, they have the opportunity to have the discussion. And I agree with Commissioner Van Pernis that there is a lot that needs to be looked into with this, and I think, you know, obviously, the best way would be to actually codify it. Until that time, we have to take everything case by case. I also agree with Commissioner Kealoha that, you know, there should be a provision for recouping expenses upon sale after a number of years. But those are all discussion that they can have at the County Council level. Director Kern, would you be okay with that proposed minor tweak in that language for condition L that Commissioner Carr Smith proposed? KERN: Could you repeat that to me? CARR SMITH: Within condition L, the last sentence before the numbered items would read, "The fair share contribution shall be allocated as the County Council deems reasonable in this situation, which may be less when considering the merits of the application." KERN: Yeah, I'm, I'm fine with that. I wonder—I mean, yeah, Maija is going to comment on it—and I wonder how that would go in the opposite direction of the cases. I understand the intention of what we are trying to do here. I wonder what the converses to that. Because interestingly enough I did have a fair share discussion the other day at County Council, giving them the update on this and a similar kind of thought process, and a question, or a comment, did come up that, oh, we can, we can charge whatever we want, on the other side of it. So that's just something to consider there, but, yeah, I'm fine with that language in general. I'd love to hear what Maija has to say. VITOUSEK: Go ahead, Maija. JACKSON: Thank you. Commissioner Carr Smith, are you suggesting deleting all of the dollar amounts? Because it also says, "as follows." So, would you keep the "as follows?" CARR SMITH: I did cross it out, but, yeah, I, that's up to you guys whether that should stay in there or not, I can't make that call. VITOUSEK: I would—it could potentially be, you know, indication that if the Council determines the fair share contributions are appropriate, the amount would be as follows. Or deleting it— JACKSON: tJACKSON: So VITOUSEK: just saying, you know, as, saying it as Commissioner Carr Smith stated it and let them, let them figure it out. CARR SMITH: But I know that the department has policies that they follow inserting this, so I don't want to be controlling that. 17 EXHIBIT A JACKSON: Yeah, so I'm just asking for clarity of whether you are keeping the dollar amounts or adding Nancy's language and saying, "or as follows" so that it gives them an either-or. VITOUSEK: Okay, how about, how about instead of putting it before the "as follows,"we put it after and it says, where it says, "In lieu of paying the fair share contribution, the applicant may construct," at that point we can say that the total dollar amount will be determined by the County Council and could be less considering the merits of the application? Would that suffice? (No audible response) Okay, well, let's add that language to the right immediately after the dollar values. Question of the applicants, would you guys be okay with including that language? MRS. YOUNG: Yes. MR. YOUNG: Yeah. VITOUSEK: Okay. Awesome. Okay, are there any other questions on this application? KERN: I need clarification, Mr. Chair? VITOUSEK: Yes, sir, go ahead. KERN: Are you folks going to make that as an amendment? And a first, a second, and vote on it? VITOUSEK: It would—our corporation counsel has advised us to make one motion at the end of the item in which we incorporate all of the recommended revisions. KERN: Perfect. Mahalo. VITOUSEK: Am I correct on that, Malia? HALL: Yes, Chair, that's correct. VITOUSEK: Okay, thank you. Commissioner DeFranco. DEFRANCO: I just want to be clear, Commissioner Vitousek, when you change that language like that, it doesn't, would that, would that allow the County Council to increase? I mean it will allow, it's allowing them to decrease, or would it allow them to increase it? VITOUSEK: Our language DEFRANCO: I want to make sure that it doesn't do that. VITOUSEK: So, I mean, we don't have any control over that. I mean 18 EXHIBIT A DEFRANCO: Okay. VITOUSEK: that's outside of our control. What we are proposing, the language that Nancy stated, or Commissioner Carr Smith stated, was that the fair share contribution could be less. DEFRANCO: Okay. VITOUSEK: She's not saying it could be re-evaluated; she's saying it could be less when considering the merits of the individual application. DEFRANCO: Okay, I just want to make sure. Thank you. VITOUSEK: Yep. Commissioner Carr Smith. CARR SMITH: I'm sorry, but I would prefer it up above the numbers and then end it, as Maija suggested, "or as follows." VITOUSEK: "Or as follows," okay. CARR SMITH: Yeah, it just makes more sense than messing with that sentence after. VITOUSEK: Okay, I'm good with any of those. I think it captures the intent of all of it. With that, can we, can we have a motion? Commissioner Carr Smith. CARR SMITH: I move that a favorable recommendation be forwarded to the County Council on the application to amend Change of Zone Ordinance number 04-149, based on the planning director's recommendation with the following amendment: Condition L, the last sentence shall be amended, "The fair share contribution shall be"—"as follows" is crossed out and added is "as County Council deems reasonable which may be less when considering the merits of the application, or as follows,"which shall be adopted. VITOUSEK: Motion made. Commissioner DeFranco. DEFRANCO: I'll second the motion. VITOUSEK: Okay, motion by Commissioner Carr Smith, second by Commissioner DeFranco. Any discussion, commissioners? (No audible response) Maija, I see that cool little hand again. JACKSON: Commissioner Carr Smith, can you clarify, does that include the director's revised recommendation and condition related to the highway access? CARR SMITH: Absolutely. JACKSON: Thank you. VITOUSEK: Okay, seeing no 19 EXHIBIT A CARR SMITH: recommendation, right? So, yeah. VITOUSEK: Seeing no discussion, proceed with roll call. CAMERO: Thank you guys so much. Thank you, Chair. And with that, we'll take a roll call. The motion on the floor is to approve the recommendation by the planning director, which does include the revised recommendation, as well as the amendments made to Condition L. With that, Chair Carr Smith? Commissioner Carr Smith? Sorry. CARR SMITH: Aye. CAMERO: Commissioner DeFranco? DEFRANCO: Aye. CAMERO: Commissioner Kealoha? KEALOHA: Aye. CAMERO: Commissioner Van Pernis? VAN PERNIS: (Inaudible—microphone on mute) CAMERO: I'm sorry VITOUSEK: It's on mute, Commissioner VAN PERNIS: Because of the danger of the amendment about the money, I must vote no. CAMERO: Commissioner Yates is absent, or excused. Vice Chair Newberg? NEWBERG: Aye. CAMERO: And Chair Vitousek? VITOUSEK: Aye. CAMERO: The motion carries, five to one, with one excused. Thank you. VITOUSEK: Okay, thank you so much, the applicants, the Young `ohanaoh, go ahead, Director. KERN: Thank you. I was going to say, conflict on the next one, I'm going to bounce off until you guys are completely done, and I'll be back on to handle any administrative matters on the 20 EXHIBIT A other side. I want to give a shout-out to Tracie for a great presentation, excellent job. Thank you all. And if—I'll see you after, bye. VITOUSEK: Okay, take care. Okay, going back in, so the applicant, you guys will be notified of the commission's decision in writing, and then you'll proceed on with the next step of going to the County Council. Good luck. MR. YOUNG: Okay, thank you. MRS. YOUNG: Thank you. VITOUSEK: Okay, next up, we have the applicant Arthur Arejian Trust for Use Permit 21 (inaudible–microphone on mute)—okay, hold on, Maija, Maija's got a question. JACKSON: (Inaudible–microphone on mute) VITOUSEK: Maija, you are on mute. JACKSON: I said I'm sorry that I tried to mute Liz and I muted you instead. So VITOUSEK: Oh, okay. JACKSON: I think we are ready now. Go ahead. VITOUSEK: Okay, yeah, so you guys canokey, one more thing, go ahead. From the applicant, you have a question? (No audible response) You are on mute also. MRS. YOUNG: Oh VITOUSEK: Here we go MRS. YOUNG: I just had a quick question before we left. With the revised of having the access blocked from Mamalahoa Highway, is there a description on how to block that? Would that be given to us, or is that just like MR. YOUNG: We are just, yeah, we are just making sure we would know exactly what to do on that matter. VITOUSEK: Maija, go ahead. JACKSON: Yes, hi, so we can reach out to you after the meeting, and MR. YOUNG: Okay. JACKSON: —give you the contacts of the Department of Transportation, and you can work with them on how, how best to block that access. 21 EXHIBIT A MRS. YOUNG: Okay,perfect. And then so we, we did vote on the time extension, right? I know we were talking about fair share. MR. YOUNG: Yeah, we were talking about a lot of other VITOUSEK: Yes, yeah, you will, we voted on the time extension that was MRS. YOUNG: Okay,perfect. VITOUSEK: recommendation, and that's going to the County Council. And then, so, my understanding on the access is that that's tied to the subdivision and to the rezoning ordinance, so while you are still on Ag-5 lot, you are you are not Ag-5 anymore, but, basically, that will kick in upon completion of the subdivision. Is that right? The access? MR. YOUNG: Yeah. JACKSON: Yeah, the requirement is that the access be removed prior to final subdivision approval. MRS. YOUNG: Okay. VITOUSEK: Yeah, so you use it until, until you get, until you are ready to do the final subdivision approval. MRS. YOUNG: Perfect. VITOUSEK: Thank you guys. MRS. YOUNG: Thank you so much. Are we able to get off the call now, or? VITOUSEK: Yes, you are,please do. MRS. YOUNG: Okay, thank you so much. VITOUSEK: Yeah, take care. The hearing ended at 10:54 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 22 EXHIBIT A