HomeMy WebLinkAbout2021-04-15 Leeward Exh E (SPP 21-222) LEEWARD PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
APRIL 15, 2021
A regularly advertised hearing on the application of DOUGLAS AND KATHRYN HICKEY
(SPP 21-000222) was called to order at 1:07 p.m. via live-stream online meeting, with Chairman
Michael Vitousek presiding.
COMMISSIONERS PRESENT: Michael Vitousek, Nancy Carr Smith, Barbara DeFranco,
Clement"CJ" Kanuha III, Max Newberg, and Mark Van Pernis
ABSENT AND EXCUSED: Faith"Faye" Yates
ALSO IN ATTENDANCE: J Yoshimoto, Esq. (Counsel for the Commission),
Jean Campbell, Esq. (Counsel for the Planning Department), Jeffrey Darrow (Deputy Planning
Director), Christian Kay (Planner), Maija Jackson (Planning Program Manager), Alex Roy
(Planner), Tracie-Lee Camero (Planner), and Noriko Sauer(Leeward Planning Commission
Secretary)
APPLICANT: DOUGLAS AND KATHRYN HICKEY (SPP 21-000222)
Application for a Special Permit to legitimize the establishment of a venue for weddings and
similar gatherings on an approximately 2-acre portion of a 20-acre condominium property
regime unit of an 80-acre property situated in the State Land Use Agricultural District. The
subject property is located at 76-1297 Waiono Ranch Road, about 1.5 miles east and mauka of
the Mamalahoa Highway —Waiono Ranch Road intersection, Waiono Meadows, H61ualoa,
North Kona, Hawaii, TMK: (3) 7-6-002:028: Portion of 0001.
VITOUSEK: Okay, we will move forward with item number 3. The applicant is Douglas and
Kathryn Hickey, SPP 21-000222, application for a Special Permit to legalize the establishment
of a venue for weddings and similar gatherings on an approximately two-acre portion of a
20-acre condominium property regime unit of an 80-acre property situated in the State Land Use
Agricultural District. The subject property is located at 76-1297 Waiono Ranch Road, about 1.5
miles east and mauka of Mamalahoa Highway, of the Mamalahoa Highway and Waiono Ranch
Road intersection, subdivision is Waiono Meadows, ahupua`a is H61ualoa, moku is North Kona,
Hawaii Island, TMK: 7-6-002:028: portion of CPR unit 0001.
Director Kern will be recusing himself from this item, and in his place will be Deputy Director
Jeff Darrow for any questions that normally go to the planning director.
Moving on to the staff presentation. We have Planner Christian Kay presenting today.
Christian, please take it away.
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KAY: Yes, thank you, Mr. Chair. Good afternoon, members of the Leeward Planning
Commission. Give me a moment to share my screen, please. All right, can everybody see the
screen now?
VITOUSEK: Yes.
KAY: Okay, great, thank you. As the Chair stated, this is an application for a Special Permit.
The subject parcel is located in the Holualoa area of North Kona District of Hawaii Island. The
subject parcel takes access off of Waiono Ranch Road, which is located roughly here, if you
follow my cursor. For reference we've got Mamalahoa Highway running north-south, and the
area indicated as Sunshower Farms is roughly the location of the 20-acre CPR unit 1 within the
subject property that is the subject of Special Permit application request.
Here is the current tax map for the subject property and surrounding properties. This is, again,
the subject property outlined in red here, it's an 80-acre parcel and it's one of ten lots within the
Waiono Meadows Subdivision. There is a lot of discussion in the, in the recommendation about
the roadway, so I just wanted to point out this roadway lot here, again following my cursor, is
Roadway Lot 11, it's an 80-foot-wide roadway lot totaling about 18.252 acres, and all, the
subject property and the other properties in the Waiono Meadows Subdivision have easement
rights over the roadway, which is indicated as Easement 13. There was some question as to the
fee ownership of the roadway. In our report we had it as Waiono Meadows Ranch Limited.
Unfortunately, our Real Property Tax Division doesn't keep up-to-date records on private
roadways because they are not taxed. We were made aware of the change in ownership by both
the applicant, as well as a neighbor who provided us with a quitclaim deed, which indicates the
current fee ownership of the underlying roadway lot is the Golden, uh, International LLCI'm
sorry if I didn't catch the rest of the name. But I just wanted to point that out.
The applicant is, or the applicants, are requesting a Special Permit to legitimize the establishment
of a venue for weddings and similar gatherings on an approximately two-acre portion of the
20-acre CPR unit of an 80-acre property situated in the State Land Use Agricultural District
consisting of the following components:
The applicants propose to construct a new, 3,000-square foot event venue structure situated south
of the existing farm dwelling. The structure will consist of approximately 1,300 square feet of
enclosed space, including a 211-square foot dance hall space, four bathrooms, a catering
preparation and service area, two wedding party dressing rooms, and two utility or linen storage
rooms. The remaining 1,700 square feet of space will consist of a covered lanai. The applicants
propose to complete construction within one year of receiving all the necessary planning and
building permits, with an estimated cost of$300,000. I should point out that yesterday the
applicants submitted a response to our recommendation, and some of what I have in this
presentation here is based on what was represented in the original application. In the new
proposal there is a condition in the applicant's proposed approval recommendation that says the
construction will be completed within three years, so I just wanted to point out the discrepancy
there and address that—and I'll do the same as I go along, but what I have on this presentation
right now is just based on what came in the original application.
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The applicants request to continue to use the grounds of the permit area, but not the applicant's
home, with temporary event tents and port-a-potties to accommodate 20 rescheduled events and
already-reserved events until construction of the wedding venue structure is complete.
Other project components include the proposal to hold no more than 75 events per year or an
average of fewer than two events per week with a maximum of four events per week. According
to the applicants, 50 of the proposed annual events will have 50 or fewer guests, 20 of the
proposed annual events will have 80 or fewer guests, and five of the proposed annual events will
have up to 100 guests. There is some representation in the new, or the response to our
recommendation, that talked about possible willingness to drop that down to a maximum of 50
guests, but it didn't seem like it was sure at the time.
So, moving on, the events will be limited to weddings, vow renewals, community and charity
events.
The representation on no food preparation will be allowed for events on the CPR unit, instead
food will be brought by the guests or provided by caterers or food trucks. Alcohol will be
permitted at events but not provided by the applicants.
No amplified music will be allowed outdoors. Music and dancing will occur within the enclosed
211-square foot dance hall portion of the proposed venue. A public address system may be used
in ceremonies so that attendees may hear the officiant and other speakers. Such system would
have established volume limits monitored by decibel meters that will be installed on property
boundaries and will provide alerts to the applicants and be logged to ensure compliance with
acceptable residential noise levels. Furthermore, the applicants propose planting screening
vegetation that will further reduce noise and light impacts to surrounding properties.
The applicants will continue to live on site in the existing farm dwelling.
The applicants expect to have three to five full-time employees for the events venue.
Events will be held daily between 10:00 a.m. and 10:00 p.m. by reservation. No overnight
accommodations are proposed. There was some question about this, this daily representation.
We went from what the applicants represented in their application that the events would be held
seven days a week, and so that was why we wrote "daily" in our report; it is, it should be clear
that there would only be these hours of operation when there is an event.
The applicants propose to limit traffic to 20 vehicles per event inclusive of vendors, shuttle vans
or minibuses for guest transportation.
The applicants propose to construct or implement the following traffic control and/or roadway
safety improvements within two years of issuance of a Special Permit—again, in the information
you should have received yesterday the applicants have changed their proposal with a
commitment to make these improvements prior to resumption of venue events. The first is
installing Mamalahoa Highway-Waiono Ranch Road intersection improvements recommended
by the Department of Public Works; the second is installing 15-mile-an-hour speed limit signs;
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installing warning signs pertaining to steep grade, narrow road, and blind corners; regrading of
the road or installing a culvert at the stream crossing to allow smoother maneuverability; and
installing paved pullouts along the roadway to allow for increased traffic safety, it is
recommended to consult with an engineer to determine the locations and design criteria of these
paved pullouts; and informing residents that an event is taking place via notifications or by
installing a temporary sign at the beginning of Waiono Ranch Road; and finally, limiting all
wedding traffic to light duty, or two-axle, passenger vehicles.
The zoning of the subject property and much of the surrounding area is Agricultural 20 acres as
indicated by the dark green color. There is some other Agricultural zoning surrounding the
subject property and Forest Reserve zoning that is consistent with the state Forest Reserve. The
subject parcel again here in the slide is outlined in red, and the dash-line is indicating the
approximate two-acre permit area location and size.
The State Land Use designation for the subject property and much of the surrounding area is
Agricultural. There is some Conservation again consistent with the state Forest Reserve, and
that's indicated in the light blue color.
Similarly, the state,pardon me, the county's General Plan Land Use Pattern Allocation Guide
Map designates the subject property and much of the surrounding area as Important Agricultural
Lands, which is consistent with its placement in the Kona Coffee Belt, and again some
Conservation consistent with the Forest Reserve.
Here is the Kona CDP map indicating the subject parcel again here outlined in red. It is situated
outside of the Kona Urban Area and outside of a rural town area, and the subject parcel is located
at about 2,400-foot elevation.
Here are a couple of aerial images of the subject property and surrounding area. The upper left
photo is showing kind of a zoomed-out portion, again with Mamalahoa Highway running
generally north-south through the slide. You can see Waiono Ranch Road going east-west. The
subject property is here outlined in blue, and you can see, again, the applicants' 20-acre unit is
roughly in this area, and the remainder is set aside for the three other unit holders. As you can
see, the subject, or surrounding area, consists of coffee farms, ranching and residences. On the
right-hand side, it's just a little bit more zoomed in, again, showing the 20-acre Unit 1, and the
dashed lines are indicating roughly the area of the Special Permit use. Again, it includes the
driveway from Waiono Ranch Road, also includes the Hickey's existing single-family dwelling,
and this is roughly the area that the proposed event venue would be built, is proposed to be built.
Outside of the Special Permit area there is an agricultural storage structure that will not be used
as part of the proposed wedding venue use. Also on the property you'll see some evidence of a
coffee farm; according to the applicant, approximately eight of their 20-acre CPR unit is planted
in coffee currently.
Here is the applicants' conceptual site plan, again, showing the entirety of the parcel. In this case
the Waiono Ranch Road is running on this side of the property on the left-hand side. This
dash-line indicates roughly the 20-acre CPR Unit 1. Coffee orchard is indicated here on the
roadside of the parcel. And again, we see the existing residence, as well as the proposed venue
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use here, agricultural storage outside of the proposed Special Permit area, and some proposal for
a parking area at the bottom of the parcel adjacent to the coffee orchard.
Here is a site plan for the actual event venue area, again, showing the existing single-family
residence and showing a little bit more about the proposed 3,000-square foot wedding events
venue.
Here is a floor plan for the wedding events venue, again, showing a portion of it, about 1,300
square feet, being under, being enclosed, and the remaining 1,700 square feet, approximately,
being used as part of a covered lanai.
And just a few elevations to show what the proposed facility would look like.
So, next, we have a few photos of the existing property, and here is a view of a portion of the
existing farm dwelling.
Location of the proposed event venue adjacent to the existing farm dwelling; upper left is a bit
zoomed out, and then the lower right is a closeup view of the area where it is intended.
Here is a view of the driveway within the subject property, with the subject CPR unit on the left.
And here's some photos of the Mamalahoa Highway-Waiono Ranch Road intersection. Again,
DPW is proposing, or is requesting, that the applicant construct some improvements to the
intersection. The middle photo here is just showing looking across the Mamalahoa Highway into
Waiono Ranch Road, and then the upper left and the upper right photos are just showing some of
the condition of that intersection area that would need to be improved.
Here's some views of Waiono Ranch Road, and it's just to give you an idea of the condition of
the roadway. It is 12 feet wide,paved, within an 80-foot roadway lot. In the most cases, most
areas along the roadway, you've got grass shoulders and the, there, it's difficult for two-way
traffic; you know, if you meet a car coming down or coming up, you'll have to get over to the
side of the road.
Here are some other views of Waiono Ranch Road just showing some of the changes in the
elevation, some of the blind curves, some of the drainage issues on the roadway, and some of
what you would be looking at if you are driving up and down.
So the deputy planning director is recommending a denial of this Special Permit. I'll get into
some of the reasons why in the following slides.
First, the denial recommendation is that because the request will be contrary to state land use
law, the General Plan, and the Kona Community Development Plan, which all seek to preserve
prime agricultural land for agricultural uses with a high capacity for intensive cultivation.
Second, the deputy director is concerned that agriculture will no longer be the primary use of the
CPR unit, and that the event venue will become the primary use since it is likely the income from
that venue will be, generated will exceed the income generated by the coffee farm. The property
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is classified, again, as Important Agricultural Lands by the General Plan, which is the highest
classification of agricultural land in the county because of its potential for sustained high
agricultural yields. The property is situated, again, within the Kona Coffee Belt, and there is an
eight-acre portion of the property, or the unit, being used for coffee farming currently. There are
several goals, policies, and actions of the General Plan related to the protection and intensive
agricultural utilization of Important Ag Lands designated lands and those lands that are situated
in the Kona Coffee Belt specifically. Another thing to bring up is that the Kona CDP's lone
mention of a Special Permit limits consideration for a Special Permit for ecotourism or other
non-agricultural related uses to lands designated as Extensive Agriculture in the Kona Mauka
Area. The CDP defines Kona Mauka Area as roughly above the 1,500-foot elevation, or mauka
of Mamalahoa Highway. And that particular policy goes on to say that for those Special Permits
to be considered on Extensive Agricultural designated lands, they also need a second test to say
that they are consistent with the Kona Mauka Watershed Management Program. As the subject
property is situated at the 2,400-foot elevation, and situated in the LUPAG Important
Agricultural Lands designation, it's not, should not be considered for a Special Permit for this
type of non-agricultural use. There were some question in the applicant's response as to
whether, as to whether or not our reading of the Kona CDP was correct; what we have been
trying to do in the department and what's kind of in deficient in some of the first rounds of
CDPs, Kona being one of them, was direct guidance on where there should be certain types of
uses or direct guidance on whether there should be certain types of permits allowed. Because
this is the only mention of Special Permits and it doesn't say Special Permits, you know, mauka
of the 1,500-foot elevation must meet all of these things, and it limits it, or it says, that they
should be Special Permits for ecotourism or other non-agricultural related uses to lands
designated as Extensive Agriculture, we interpreted that to mean that in this area above the
1,500-foot elevation, that's where those uses should be limited.
Other reasons for the denial are adverse effects on the surrounding properties would include a
substantial increase in traffic and in noise, especially with events occurring up to 10:00 p.m.
daily. Again, the applicant is recommending the possibility of dropping that down to 9:00 p.m.
There is some question of whether or not that means all activity at the event venue would cease
by 9:00 or 10:00 p.m. In the applicant's traffic report when they did kind of a schedule of the
amount of trips that were going to be generated and breaking it down by timing, it seemed to
indicate that, well, the guests and the, you know, most of the guests would leave by 10:00 p.m.,
that there would be another hour of cleanup and musicians and other staff leaving. So, our
standard practice when we are limiting hours of operation is if it's 9:00 p.m. or 10:00 p.m., that's
when all activity at the proposed use would cease. So when—we haven't had a chance to speak
with the applicant on what the intent was, which I wanted to clarify that, but I just wanted to
bring that up.
Construction and operation of the event venue with a maximum of 200 to 400 visitors per week
would substantially change the agricultural character of the land and its present use. Again, there
was some question as to whether or not the 200 to 400 visitors a week was misleading. What we
tried to do here is take a look at the maximum proposed number of guests and multiply that by
the maximum number of events that could be there per week; so if the low-end is 50 and the
high-end is 100 and the application said that there is a maximum of four events per week, we just
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multiplied it that way. So, again, there was no intent to mislead; we were just going by with the
information we got in the application.
So I just want to get into roadway safety improvement rights and liability. This is another major
issue that's come up. I just want to go over it a little bit. Waiono Ranch Road, or Road Lot 11,
is a private one-lane road serving the Waiono Meadows Subdivision and lands mauka. It was
designed and built to accommodate a low volume of farm and ranch traffic. The roadway is
currently substandard with narrow pavement width, unmaintained grass shoulders, blind curves
and hills, areas where intermittent flooding occurs, and there is a concern that it can't
accommodate an increase of traffic related to the proposed use in its current condition.
Additionally, neighbors have voiced significant concerns over the condition of the roadway,
flooding, and possibility of increased vehicular accidents and concerns over an increase in
liability due to the proposed increase in traffic related to the use. In response to neighbor
concerns, the applicants are proposing pardon me the applicants are proposing to limit traffic
to 20 vehicles per event, inclusive of vendors, improve the intersection according to DPW
requirements and provide safety improvements to the roadway lot as recommended in the
included traffic and road assessment report. Additionally, the applicants' attorney has argued
that general principals of law suggest that the applicants have the right to improve the roadway
and limits liability for traffic accidents related to the proposed use to the applicants. So the
reason that we kind of looked into this a little bit more deeply is at the last hearing back in
September of last year, the applicant and their attorney both stated on the record that they didn't
feel that they had the legal right to unilaterally make these improvements. So we did a little bit
more research into the deed documents for the subject property, and we found that based on
language within those documents, not only the subject property but the other ten deeds within the
subdivision, language indicated that the owner "shall be responsible for one-tenth of the liability
and maintenance, repair, and other obligations relating to the aforementioned Lot 11 for which
the owners of the lots in said Waiono Meadow Subdivision are responsible, as a group, under the
terms of said deed." So "as a group"was not bolded in the document, but we bolded it there to
indicate that the applicants' authority to improve the roadway appears to spring only from the
language "as a group"together with the nine lot owners, to try and address the question of
whether or not they can do it unilaterally. The other questionoh, I'm sorrybased on the
preceding, the question of whether the applicants have the right to unilaterally construct safety
improvements to the roadway has not been resolved, and the deputy director is concerned about
recommending approval of a use that would increase surrounding landowner's liability exposure
based on increased traffic related to the proposed use. Again, if you look at the preceding bullet
point, the lot owners are responsible for one-tenth of the liability of, relating to Road Lot 11, so
the concerns of the neighbors that there would be an increased liability should there be a traffic
accident, the deed indicates, or seems to indicate, that they would. According to Mr. Tuhy's
analysis of the liability in his letter, he indicated that the Supreme Court's test for that was those,
not necessarily the underlying landowner, but those who have control of the maintenance of the
roadway would be open for liability, and this seems to confirm that under that test.
So for all of the reasons that we stated, the deputy planning director is recommending denial of
Special Permit number 21-222.
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I should note that in addition to the alternative recommendation letter that you received
yesterday, since the applicants'pardon me the background recommendation reports were
submitted to the commission, there have been 15 additional pieces of testimony that we sent to
you over the last couple of days from, from neighbors and other testifiers, as well as a chunk of
52, pardon me, letters in support of the application. There was some confusion as to whether
those were new letters of support and not. In our haste to get the information to the commission
as quickly as possible, we didn't realize that those letters of support were already included as an
addendum, or an exhibit, to the application. So there are some duplications there, we apologize
for that. That said, I'm happy to answer any questions that the commission may have at this
point.
VITOUSEK: Commissioner Kanuha.
KANUHA: Thank you, Chair. May I, Christian, one question: Where have they been
conducting the weddings on this property up until this application? So where have all the events
been taking place? I know you had the map brought out where the, where the events are, you
know, where the proposed events base is. Where are they doing the events now?
KAY: Sure. It's our understanding that for the three years preceding their application back in,
back in, or last year, they were holding weddings within the existing dwelling on the property
and on the grounds surrounding the existing dwelling within tents. If that is inaccurate in any
way, I'd be happy to have the applicants address that further, but that's our understanding.
KANUHA: Thank you.
KAY: Yeah, aloha.
VITOUSEK: Commissioners, are there any other questions? Commissioner Carr Smith.
CARR SMITH: (Inaudible—microphone on mute) Sorry, thank you. I was wondering,
Christian, regarding some of the testimony regarding the roadway, and there was some talk about
a property owner up mauka that was required to make some changes or improvements to the
road, do you know anything about that?
KAY: Sure, about, about three or four weeks ago the applicants sent us a copy of a variance that
in the research of the property they found for, a variance that was granted in conjunction with a
six-lot subdivision of the properties mauka of the Waiono Meadow SubdivisionI'm sorry, I'm
trying to go through my papers here and grab that
HEAUKULANL Christian, that's Variance 12-083. This is Charles Heaukulani for the record.
KAY: Okay, thank you, Mr. Heaukulani. Yeah, so as of April 1, 2013, that variance was
granted. And we just found out today through some additional research that the condition in
questionI believe that would be condition 5.b.was subsequently deleted from the variance,
and that was the condition that is, that reads, "The existing sub-standard paving within Road Lot
11 shall be improved and/or repaired to substantially match that which is located within the
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proposed subdivision's internal access Easement 14 as shown in the photos included as Exhibit
8," it goes on to just layout some of the issues with blind corners, construction to deal with the
surface water runoff events, and the like. Again, there were two, I'm not sure why, there were
two letters indicating that, but subsequent to the approval of the variance, there were
amendments to the variance, which removed that condition. So that, again, came to our attention
this morning, and I believe that Jeff shared that information with the applicants.
CARR SMITH: Okay. AndI can't remember exactly that same testifier mentioned the name
of the person that did that subdivision. Does that happen to be the same name of who you just
said owns the road now, International LLC?
KAY: That's correct, Golden Bay International LLC, now that I have the document in front of
me.
CARR SMITH: Okay.
KAY: Golden Bay, yeah.
CARR SMITH: All right, so they do own the property mauka(indiscernible—simultaneous
speech)
KAY: They, theyI'm sorry to interrupt—they were the ones who subdivided the property
mauka; there are other owners that have bought the subdivided lots since then. I believe they
may own one of the resulting lots of the subdivision.
CARR SMITH: Okay, very good. And it seems that it's just still a little bit gray as to whether
they can unilaterally make any improvements on the road, right?
KAY: Yeah, so that, that's, that was our concern, again, based on the representations by the
applicant at the last hearing that they didn't believe they had a legal right to do so unilaterally.
So we asked them when they resubmitted their application in December kind of what changed,
and they indicated to us that they have found new road ownership documents, as well as
indicated that they would try to secure the necessary permissions to make improvements. In the
next sentence they indicated they didn't feel like they needed permissions, that they had the right
and responsibility to make repairs on the roadway, maintenance and repairs on the roadway.
This was also repeated in Mr. Tuhy's letter that spoke to whether or not they had the ability to do
so. Again, I'm not sure if Mr. Tuhy had access to the deed documents that showed that there
were specific maintenance and liability requirements within the deeds on the properties. So,
again, our analysis of his memo was that he was kind of using more general legal terms to
determine legality. So that's kind of where there is some discrepancy between what we think
and what the applicant indicated, and the deputy was not comfortable moving forward with an
approval recommendation with that being, that being outstanding still.
Another big issue was the issue of liability where the applicants' attorney said there's no, no real
liability to the landowner, only those that control maintenance of the roadway, and the
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documents we have indicate that each of the lot owners controls one-tenth of the maintenance of
the roadway, and also have one-tenth liability related to the roadway.
CARR SMITH: Thank you, Christian. That's all I have for now.
KAY: Thanks.
HEAUKULANL And, Christian, could I be heard on that, please, or Mr. Chair?
VITOUSEK: Hold on, no, not yet, I mean the applicant will have the opportunity to speak after
the commissioners have asked questions of staff.
HEAUKULANL Okay.
VITOUSEK: For now you can mute yourself, and we'll call you on later.
I do want to ask a follow-up question on Commissioner Carr Smith's questions regarding the
road and improvements on the road. Is there any mechanism that the county has, whether it be a
condition of subdivision, et al. that would require the improvements of this road to a safe
standard?
KAY: As it is a private roadway, we don't have the authority to require it as a matter of
recourse. That, there was that, you know, requirement in the variance previously, but that has
since been amended to pull that out. So as far as, you know, today DPW couldn't tell the owners
of the roadway that they needed to improve it to a certain standard or tell the easement holders
that they would need to improve it to a certain standard (inaudible—simultaneous speech) my
understanding.
VITOUSEK: It would have to have been in a previously existing condition to figure out
(indiscernible—simultaneous speech)
KAY: Yeahoh, okay, sorry yeah, so as far as we can tell based on the research that we've
done, no such condition exists at this point.
VITOUSEK: Okay. Commissioner Van Pernis.
VAN PERNIS: It sounds, Christian, like a legal analysis of the road had to be made before
anything could be decided. Did Mr. Yoshimoto or Ms. Jackson review this with you or are these
legal conclusions just yours?
KAY: We had extensive conversations with the corporation counsel for the department prior to
releasing the deputy's recommendation to ensure that we are on solidly footing.
VAN PERNIS: So, is it correct that your legal position or conclusions stated in your testimony
today was backed by the attorneys?
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VITOUSEK: Actually, you know, if you would like, Commissioner Van Pernis and the rest of
the Leeward Planning Commission, if you would like to request an executive session in order to
consult with our attorneys, we are more than welcome to do that. Corporation, Deputy
Corporation Counsel J Yoshimoto is here and he is available, we can ask him in the open
session, or we can request an executive session in order to consult with him on the legality of this
issue.
VAN PERNIS: I'll withdraw the question.
VITOUSEK: Would you like to request an executive session in order to consult with Deputy
Corporation Counsel J Yoshi
VAN PERNIS: No, I think that the issue has been adequately addressed by Mr. Kay stating they
consulted with the attorneys, county attorneys who backed their position.
VITOUSEK: Okay. Mr. Yoshimoto, would you mind confirming for the record that corporation
counsel has reviewed the position and confirm that you agree with it?
YOSHIMOTO: No, I'm counsel for the commission, not for the department. So I think the
discussion that Christian was just talking about was made with the deputy corp. counsel
assigned to the Planning Department. So I was not a party to that. I think they are referring to
Ms. Campbell.
VITOUSEK: Have you undertaken your own analysis in determining whether this is accurate
that the, prior to Planning Commission making a ruling on this?
YOSHIMOTO: I have not reviewed or received the information that Christian said he just got
this morning, so I'm not able to provide any opinion at this time.
VITOUSEK: Deputy Director Darrow.
DARROW: Thank you, Chair. Jeff Darrow with the Planning Department. As was mentioned
by Corporation Counsel Yoshimoto, we, we work with, as far as the Planning Department, we
work with our corporation counsel who is present, Corporation Counsel Jean Campbell, so she
can, if you do have questions regarding that, she is able to answer those questions specifically.
Thank you.
VITOUSEK: Are there any questions for Corporation Counsel Campbell? (No audible
response) Okay, seeing none, Commissioner Newberg, I saw your hand raised.
NEWBERG: Yes, thank you, Chair. Christian, I'm doing my best to locate this document
within our received report. I believe it's within Exhibit E under the Traffic and Road
Assessment of Waiono Ranch Road, in particular,the Table 2, Typical Event Timeline, that's
proposed. I just wanted to reach out to that, getting again to my knowledge of the proposed
event timeline being between 11:00 a.m. and 10:00 p.m.,just looking at this Table 2 document, it
starts showing vehicles arriving at 10:00 a.m. and then getting down towards the end of the
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proposed table with vehicles leaving at 11:00 p.m. I just wanted clarity on one of those times in
proposed timelines, and if that was being generated by the applicant.
KAY: Sure, so to answer your question, yes, the recommendation pardon me the traffic
report was supplied by an engineer that was retained by the applicants to speak to traffic and
roadway conditions. So that schedule breakdown as part of that was something that they
provided. So there does seem to be some discrepancy in the application and some of the
subsequent documents in terms of hours of operation. I can only assume—and maybe let the
applicant confirm that the 11:00 a.m. to 10:00 p.m. is just for kind of the event, the actual
event, but that kind of the setup and breakdown would be outside of those hours. But, yes, it
looks like the applicant might be able to address that better.
NEWBERG: Sure, thank you for that, Christian, whatever is appropriate deemed by the Chair,
that would be addressed perhaps with their application or, you know, whatever is the proper way
to proceed. Thank you.
VITOUSEK: Yeah, we'll proceed now with the questions of staff, and then we'll give the
applicant the opportunity to address after. Is there any other questions, commissioners, for staff?
(No audible response) Okay, seeing none, we'll move forward with the applicant.
KAY: Mr. Chair, if I may? And I don't know if this is appropriate now. Before the applicants'
presentation, but I do have three questions from Mr. Van Pernis for the applicant. So whatever
time is appropriate you think I can ask those.
VITOUSEK: Yeah, we'll ask those after the applicants' presentation.
KAY: Thank you, sir.
VITOUSEK: Okay, will you please raise your right hand? Do you swear or affirm to tell the
truth on this matter now before the Leeward Planning Commission?
K. HICKEY: We do.
PIPAN: I do.
D. HICKEY: I do, Chair.
VITOUSEK: Okay. One at a time, would you please state your name and the town you live in?
K. HICKEY: Kathryn Hickey in Holualoa.
D. HICKEY: Doug Hickey, Holualoa as well.
PIPAN: John Pipan, Honoka`a.
VITOUSEK: Any other applicant(indiscernible—simultaneous speech)
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EXHIBIT E
K. HICKEY: Yeah, we have Clare and Charles as well.
HEAUKULANL Well, I'm not an applicant, Mr. Chair, though I would like to be heard before
my applicant starts to testify to address some of the legal issues that have been discussed, if I
might.
VITOUSEK: Yeah, hold on one second, you know, procedurally, we will take the applicant's
presentation, and then you are welcome to provide any—would you mind letting us know what
your role is with the application?
HEAUKULANL What my role is?
VITOUSEK: Yep.
HEAUKULANL Oh, I'm sorry, I should have, I should have done that. I'm Charles
Heaukulani. I'm the attorney for—at least for today; Mr. Tuhy found out late that he was going
into surgery today—I think he is in surgery as we speak. So I've been retained for purposes of at
least this afternoon's hearing. So that's a long way of saying that everyone participating knows
more about the facts than I do, but I've got a fairly good handle on the law,particularly as it
applies to land use planning. And I appreciate, I want to thank Mr. Darrow and staff for the
last-minute emails in including me in the process and making the Zoom available to me, because
I am coming from Puna.
VITOUSEK: Okay, well, it's the applicant's time; the applicant and your team can present
whatever it is and whatever order you'd like to present.
K. HICKEY: So, hi, everybody—oh.
VITOUSEK: Sorry, one second, I see a point of order, Director [sic] Darrow.
DARROW: Sorry, I just want to make sure that we can hear Clair; when she unmuted, we
couldn't hear her, so let's make sure that she can be heard.
MASON: Okay, can you hear me?
VITOUSEK: We can, thank you.
MASON: Okay.
VITOUSEK: Okay, sorry about that, you can go ahead.
K. HICKEY: Hi, I know many of you from our last hearing. I'm Kate and this is my husband,
Doug. We are the owners of Sunshower Farms. I'm not sure what the best order to do this is. I
think that John has a presentation first to kind of go point by point through some of the things
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that Christian said, and respond to some of those. And I also would like our attorney Charles to
respond to the liability issues and if we are to repair the road as well.
But just before that, really quickly, because I know there was a question about the hours. We, I
didn't realize until literally just today that the hours of operation included the cleanup time; I
thought it was only the time that there would be noise being made or lights coming from the
venue. So that's why we had the cleanup going past 10:00. We certainly could do the cleanup
the next day. There is no reason why we couldn't do that. We could have all the staff leave
when the guests leave. We just didn't include that because I didn't know that that was something
that would be wanted. I didn't realize that that was part of it. So we would absolutely be willing
to change the timing however as needed. But, yeah, take it away, John.
PIPAN: Thank you very much. Aloha kakou, Chair Vitousek, planning commissioners.
Welcome, Commissioner Kanuha. We've saved the best for last today, and I'll try to keep this
brief and summarize my points, as I made most of them in writing already. And I apologize for
the late additions to this topic, agenda item. It seems like a lot of these processes are kind of
backloaded and, you know, a lot happens at their very last minute. So, I had not too much time
to prepare those, but I hope they are comprehensible and not at all misleading.
So, thank you very much, I provided that alternative recommendation as a positive
recommendation just to show you what different perspective would look like, looking at this
project through a different set of eyes, through different lens, seeing it as a small farm looking to
expand their operation to drum up additional sources of revenue to, you know,just diversify their
business basically. So we all know that agriculture in Hawaii is a very hot topic, and it's, it's
very contentious throughout the islands. Still yet, 85, 90 percent of our food consumed here in
the islands is imported. And the conversion of ag land into upscale residential estates is an
ongoing concern. We are not going to address that today, but it's an important backdrop to the
context of this application. Farming is hard, despite, you know, folks' best efforts; the cost of
labor is extremely high, the cost of land, inputs in transportation are extremely high, farmers
have to contend with invasive pets, pests pardon me—and natural disasters, seems like new
ones on the yearly. So this is, this is kind of the backdrop and the context we are dealing with
here. This is a farm requesting to diversify their business in a way that appears to be reasonable
and unusual.
And I'd like to touch briefly on agricultural tourism as it relates to this permit application.
Without going through the Special Permit process, without having this venue for public
testimony and analysis by the Planning Commission, the applicants could propose an agricultural
tourism operation consistent with their zoning; it would only need to comply with the rules of the
zoning code and obtain Plan Approval showing proposed construction, parking, fences, lighting,
etcetera and so forth. With this agricultural tourism Plan Approval, they can have up to 30,000
visitors per year, with no concessions, with no mitigations to the easement access, no
improvements to Waiono Ranch Road. So this request is for at maximum 4,600 guests per year,
and that is subject to discussion. We've suggested that, you know, we could take this down to
even 50 guests maximum per event, and that would leave it only at 3,750 guests per year. So
we've shown again and again that the applicants are amenable, they are flexible, they are willing
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EXHIBIT E
to cooperate, to communicate, to mitigate the potential impacts to change the scale and proposed
uses here.
But it all comes down to the Special Permit criteria, so what we are using to evaluate this
proposal against law, against the rules. So, is it unusual and reasonable? So that point wasn't
really disputed in the existing planning, deputy planning director's negative recommendation. It
is unusual, they agree to that, but they said it wasn't reasonable due to the following conditions,
the following points of contention. So the following points would be: "Such land use shall not
be contrary to the objectives sought by, to be accomplished by the land use law and regulations";
this is a farm, it's continued to be used as a farm, this use is supporting the farm use, it's not
going to detract from the farm use, the two are intertwined and symbiotic. The desoI'm
sorry—"The desired use shall not adversely affect surrounding properties"; this one is subject to
a lot more discussion I think we are going to have, so, that, that, we propose various mitigations
including improving the roadway, including limiting hours, noise abatement, light abatement,
etcetera and so on, reducing the size of events. The communications and the negotiations with
neighbors have been largely one-way; so we'll send out letters, we'll make attempts to contact
them, stating, hey, this is how we are trying to change the plans, we would love to talk to you,
we'd love to have a meeting, and we hear nothing back. It's been trying to have a
communication with a stonewall. It takes two in these, in these attempts. So we'll talk on that
some more for sure. So, the next is, "Such use shall not unreasonably burden public agencies to
provide roads and streets, sewers, water, drainage, school improvements, and police and fire
protection"; it's, you know, there is no public utilities here, this is on a private road, impacts are
very limited, so that one should be moot. "Unusual conditions, trends, and needs have arisen
since district boundaries and regulations were established"; very unusual conditions, especially
relating to agriculture and the difficulty with being a small farmer here in Hawaii. So, "The
land upon which the proposed use is sought is unsuited for the uses permitted within the district",-
so
istrict";so this is, you know, it depends on how you look at it. Are we looking at just the two acres or
just the, probably, quarter acre or half acre proposed for the new construction? This is, barely
any soil on top of a pahoehoe flow, it's fairly steep, and that's going to help with views out of the
event center and scorch underneath, but this has very, very limited potential for agriculture.
Agricultural use in the two acres includes the applicants' farm dwelling and the driveway leading
to the use, so I don't suspect that you intend them to, you know, plant those areas as well. "The
proposed use will not substantially alter or change the essential character of the land and the
present use"; so, again, this one, we are limiting the size of the events, we are very cognizant of
the potential impacts that could have on the community. And I think the, the way the project has
been represented in the petition to the surrounding neighbors in the negative recommendation
has been misleading. So those are important distinctions relating to what the actual use is. Now,
perhaps the communications were not perfectly clear. We were always stating the maximum, the
conservative maximum impact, and the average is likely to be much less. So the average size of
events less than 50 is probably going to be in the 20 to 25 guest range. So we want to be sure
that the maximum is not taken as the likely impact. So, and then last but not least, "The request
will not be contrary to the General Plan and official Community Development Plan and other
documents such as Design Plans"; so this is important, too, and it kind of stems from what your
conclusion is, whether you are working back through the General Plan and the Kona CDP to find
things that's for that conclusion or you are approaching with an open mind. So the previous
agenda item on today was a Special Permit for a, the school on agricultural lands, not Extensive
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EXHIBIT E
Agricultural Lands, there was no discussion of the Kona CDP's opposition to it. And I do think
we've outlined in our recommendation, our alternative recommendation, in our report how this
aligns with the Kona CDP and the General Plan in depth, so we don't really need to go over that
too terribly much.
So, again, this is a difficult decision. I don't envy your position today, but it's an important
decision. This affects many people's lives, no matter how you, you vote. So with that, we
respectfully request your approval of this report, of this application, and I'll turn it over to Kate.
Aloha.
K. HICKEY: Thank you, John. I'm not sure if it would be best for—Charles is working as our
attorney today to speak to the liability issues and the road improvement, if we are allowed to do
that. I just want, before he speaks, to say one thing to Christian and to all the commissioners
about the transcript that was brought up from the last hearing. We actually checked the
transcript today, and we did not say that we thought that we weren't able to improve the
property, or the road. We simply said, our consultant who at that time was Mr. Kern, said the
applicant is willing to make improvements within reason. And Commissioner Van Pernis had
asked, can you unilaterally there is no association, the majority of landowners don't approve
this use—so the question is, does Ms. Hickey agree to build the improvements on the road for
the benefit of her property regardless of any association or other landowner. And then we said
yes, Commissioner Van Pernis—and there was more after that—but we said that yes, we were
willing to make improvements unilaterally. There was no question about whether or not we were
allowed to make them, other than Mr. Van Pernis's question which we believe that we are
allowed to make them.
VITOUSEK: Christian, response?
KAY: Yeah, so we also went through the transcripts and found two explicit references to that;
on page 76 of the transcripts Ms. Hickey stated, "Not only that, we don't own the road. We
don't have permission to widen the road. We can't do those things unilaterally,"that's one
reference; following that, there is Mr. Tuhy on page 78, who indicated, "Thank you. I just, very
briefly, the question about fixing up the roadway, instead of beating a dead horse on that, I think
we talked about that quite a bit, it, it's owned by a whole different entity, so our clients haven't
that, they wouldn't have any rights to do that legally, really." So those are our references that we
found in the transcripts that support our assertion in the report that the applicants and their legal
representative stated that they didn't feel that they had the legal right to make those
improvements.
VITOUSEK: Okay, thank you both. Mr. Pipan.
PIPAN: If I could. I was looking at the transcript, I asked someone in our office to continue
looking at the transcript, I sent Kate that excerpt that she quoted, and then we just at the same
time that Christian was relating those later excerpts off of the 70-somewhat pages of this
transcript found those also. So it wasn't a deliberate attempt to confuse things. It was just the
speed with which this is happening.
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EXHIBIT E
VITOUSEK: (Indiscernible–simultaneous speech)
K. HICKEY: To be clear, I think that there's been a lot of questions about, you know, our
assertions of whether or not we can improve the road. I think we've always thought that we
could improve the road. That's the only way the road has ever been improved. The road was
paved by neighbors who just decided to pave it, any time there is a pothole, it's because
neighbors just decide to fill it. Never, ever, has there been agreement on the road as to
improvements; people always unilaterally make them. I think that our saying like we don't
know, we don't own the road, is in response to, you know, can we widen it to two lanes, can we
just change everything. And, you know, I would think that we would want to get some support
from our neighbors in that, but, do I think that that's required? No, I don't. And I don't think
our attorneys think that that's required, either.
VITOUSEK: I would just add that, you know, I understand what's going on and perspectives on
minutes and all that kind of stuff, and I think it's indicative of what I would call lack of
preparation in advance of this where we seem to be flooded with a whole lot of information the
day or the day before. And you've got to keep in mind that we are a volunteer board with lives
outside of this that don't get to drop everything the second that something comes in. So I just
want you to understand the difficulty that we face as volunteers when we are faced with an
application that comes to us at this level of, I guess, unpreparedness. But if you'd like to proceed
with—and that's no, no knock on you the applicant, it's between both the applicant and the
county where there is a whole lot flying back and forth, and we are just kind of in the middle
trying to take it all in.
So, going back to the presentation, Mr. and Mrs. Hickey, if you guys would like to direct the
floor to your attorney, you are welcome to do so.
K. HICKEY: Yes, that's what we would like to do. Thank you, Commissioner Vitousek.
VITOUSEK: Go ahead.
HEAUKULANL Yeah, okay, and thank you, Chair. You know, I, I'm always uncomfortable in
these types of land use proceedings when, when the reality of what we are doing gets
overshadowed by all kinds of layers of pretend legal issues. And so, you know, what I'd really
like to do is address some of the things, you know, one of the most telling things of this
proceeding this afternoon was when Commissioner Carr Smith asked some pretty pointed
questions of one of the neighbors, and she asked about whether or not they were willing to
engage in a road maintenance agreement. Now, now, this is a situation where adjoining
landowners come in and say, oh no, you, you can't do this because the road is a mess, and then
you say, well, wait a minute, we've been trying to get you to participate in a road maintenance
agreement for years, if not decades, and then Commissioner Carr Smith asked her straight-out,
would you agree to engage in a road maintenance agreement? And she did everything but
answer the question, she never did answer the question, and, because the answer to the question
is self-evident. The road, the maintenance of the road isn't the issue for these homeowners. It's
what we used to call when I was sitting in your place, pulling up the drawbridge or pulling up the
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ladder; I got mine, pull up the ladder so no one else can come in here and build or do anything.
So I'm done with that topic.
The other topic I wanted to talk about was the legal issues with regards to preservation of
agricultural land. I think that, that to say that this is an inappropriate use because it doesn't
sustain agriculture, misunderstands the issue. We farm—I've lived on lane-and-half country
roads my whole life, we farmed for decades. These people have farmed for decades. You heard
some people testify in favor of this application who have farmed for decades and generations.
And everyone who farms knows the reality that agriculture doesn't pay the bills, that you have to
find a way to diversify what you are doing if you are going to stay alive. So if, if the idea of
coming up with creative ways to generate income to support your agricultural efforts, if, if that
isn't accepted by this commission or by the law, it's only going to be, we are not going to see
generations on the land, because they are not going to be able to support themselves financially,
and then the only thing that happens is when the agriculture disappears, the developers come in
and, and it's done. So I think, I think you have to re-think, re-envision what the law is saying;
the law is saying that we have to protect important agricultural lands. And I'm, I'm one who, I
spend almost all of my professional life and all of my time in my farm for trying to protect
agricultural lands, but you don't do that by stomping out creativity, a creative way, of keeping
your farm alive. And I understand, I mean I understand what the deputy director says that he's
concerned that the wedding venue will make more money than the coffee venue, but I mean
that's kind of speculative, maybe yes, maybe no. But the reality I think—and I think my clients
will have to, will testify that without the additional income of creative semi-related to
agricultural efforts, that the farming is just going to crash and burn, that they are going to have to
get out. So I think from that perspective, from both of those perspectives, that what they are
proposing to do is actually consistent with the law and consistent with keeping this agricultural.
And some of the language that I heard from the testifiers said it was danger of mixing, that there
was a danger of mixing agricultural and non-agricultural, and that it was long-term irreversible
consequences, and that was, that comes from people who also refuse to participate in a road
maintenance agreement. So, you know, I'm, you know, the not-in-my-backyard thing has
always bothered me, and I don't think it's appropriate to consider those types of arguments here.
And I also, I really appreciate what Mr.—John, is it Pipan? Pipan?
PIPAN: Pipan, correct.
HEAUKULANL Pipan. What he said about, you know, this actually is, or, you know, I mean,
you massaged the definition of ecotourism. What they are doing is bringing people into an
agricultural area for a different kind of tourism. So I don't see that there is a, that there is a
problem. And again, we would be happy to talk about the legal issues that are involved here.
And in anticipation of those discussions, we would ask counsel to consider at least Polumbo
versus Gomes, it's 13-03145, and it speaks right to this issue, it's an issue that we took up on
appeal. Thank you, again, for allowing me to participate on such a short notice and thank you
for this opportunity this afternoon, I appreciate it.
VITOUSEK: Thank you. Commissioner Newberg, I saw you had your hand up.
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EXHIBIT E
NEWBERG: Yes, thank you, Chair. Just a few questions for the applicants, if I may. Just
looking at the proposed building, or the structure, and then there is comments towards the music
and the dance hall will only be confined to the 211 square feet, I assume that is within the walled
area of the proposed structure. I just wanted to ask
K. HICKEY: Yeah, do you want me to answer that question first or(indiscernible–
simultaneous speech)
NEWBERG: I think you just did, and I appreciate that. I just wanted to know, I mean, within
the walls of this building, there is no sound barrier or separate—it would probably just be a stage
area for dancing I assume
K. HICKEY: So, Clair is our designer, and she can speak to that. She's doing her little
hand-raise thing on the Zoom. But, yes, we, she can talk about how we can soundproof that.
Also, you know, I think there is a lot that John, our consultant, was saying about, and also, I
mean, that Chair Van Pernis—or not Chair Van Pernis, sorry—Chair Vitousek was saying about
how you guys are getting everything last minute, and large part of that's because we got a
negative recommendation only on Friday, and so we were kind of scrambling to try and address
every single issue that they had brought up. Some of those, they had never brought to our
attention before. The noise, we thought that we had adequately mitigated the noise with our
suggestions of the plantings and the decibel meters and stuff, which are the industrial standards
for venues like ours. But I was explaining to John yesterday, and I've explained this to Mr.
Darrow as well, we would be willing to have no music at all, so just have a no dancing venue.
The majority of our events are just dinner parties,no amplified music. We would maybe want to
have like ukulele players or something, but the majority of our
NEWBERG: I appreciate that. I was hoping maybe I could just ask a few questions, and we can
move forward
K. HICKEY: Sure
NEWBERG: with other commissioners' questions.
K. HICKEY: —all right. Clair, if you want to
NEWBERG: —okay.
K. HICKEY: —speak to the soundproofing.
VITOUSEK: Commissioner Newberg,please, if you have a question about soundproofing, you
can ask, otherwise I'd like to let Commissioner Van Pernis ask the question, I mean,
Commissioner Newberg ask the questions that he'd like to ask. Commissioner Newberg?
NEWBERG: (Indiscernible–simultaneous speech)proposed gradeI just wanted a little better
understanding of this separate space, as I mentioned—if it's proposed that it has soundproofing,
yes or no, and I just had two other questions. Thank you, Ms. Mason.
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VITOUSEK: Okay, Ms. Mason, would you answer the question about the soundproofing?
MASON: Hi. Yes, absolutely. So I will keep it just to the sound issue. We, in that space, if we
are to move forward and have this dancing hall area, it's very small, typically from knowing the
Hickeys, there's like maybe five people who go in there and dance at wedding, right, so it's not
loud music and all that. We can also put in double lane glass into the sliding doors that close off
that area, which essentially makes it entirely soundproofed. That's the, that's the farthest extent
that, you know, we would be willing to go. It's not, I don't find it personally necessary in the
space, but, yes, it's easy to make that space a little box on its own.
NEWBERG: Thank you. It doesn't seem like it would be as fun, but I appreciate your
answering that. Another question: Prior to requesting this permit, please refresh my memory on
how many events were held per year and the approximate number of guests.
K. HICKEY: Sure, I can definitely speak to that. John was raising his—did you have something
to say about the noise, John?
PIPAN: No,just I wanted to make sure you had the opportunity to provide a statement—
VITOUSEK:
tatementVITOUSEK: You guys, you guys, you guys, we will let Commissioner Newberg continue with
his line of questioning, and if
K. HICKEY: Sorry about that.
VITOUSEK: (Indiscernible–simultaneous speech) okay
K. HICKEY: All right
PIPAN: Continue with our presentation
VITOUSEK: I see your hands raised, I see your hands raised. And once Commissioner
Newberg has finished, I'll definitely give the opportunity to respond, okay?
K. HICKEY: Okay, thank you, Chair. So we've held from about, from 2017 through the first
two months of 2020 before COVID hit, we held about a hundred weddings, I think it's slightly
over a hundred, like 102, 103, over those three years. As far as average number of guests, the
average number of guests is 29, I took the average from all the years combined. I would say
there, most of them were right around 29, like in the mid-20's to low-30's. The event space
really fits 35 or—we are currently working out of which is our home—really fit 35 people or less
well. And the vast majority of the demand for event in our event space is that size. The only
reason we are applying for a larger event space is so that we could serve our community and
serve local couples who don't have as many wedding venue options, as you heard some of the
testimony about. But that's why we said we would be willing go down to 50. The reason we
didn't propose that is specifically because we didn't want to not serve our local community that
we live in.
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NEWBERG: Sure, I appreciate that. That leads to me into my third question, and I'm going to
kind of give you how I'm looking at it if I was in the neighborhood,just trying to put myself in
not only your folks' position, Mr. and Mrs. Hickey, but also perhaps your neighbors'. So we are
looking at, if I'm correct, 2017 to let's say maybe March of 2020, approximately, you know, 25
months, unless we are counting three-plus years, of a hundred events is dramatically less than
what you are proposing. So I guess what I'm looking at is, myself, is, lovely area, lovely place
to have a venue and have a wedding, I mean, I can see the draw, I can also see the need after
having this second meeting and then also hearing the first. With that said, I guess the way I'm
looking at it is what would be your bare minimum—and I'm not to put you on the spot but
maybe to get the gears turning—what would be your bare minimum that you would accept as an
annual proposal of events? And the reason I'm asking is if I knew my neighbors were going to
have more than one event a week, it would be taxing for myself, so just kind of
K. HICKEY: (Indiscernible–simultaneous speech) the bare minimum could actually be a lot
less than the 75 we are asking for. The only reason it couldn't be is because we are also offering
to do the improvements to the road, which are going to be many thousands of dollars. So that is
kind of the issue. We could really go down on the number of events we had and the number of
guests, and still make a living as farmers and still be able to support our farm. But we wouldn't
also then be able to afford to do all the improvements to the road on our own with no help from
any other neighbors. So we've tried to find a happy medium with the 75 events, and even to
reduce to ask so that only five events a year would be large and up over a hund not over a
hundred up to a hundred, and the 20 would be between 50 and 80, and the 50 events would be
under 50 guests. And when I say under 50 guests, it's not like there are going to be 49 guests.
We get a lot of requests for events with 12 people or 10 people,just a family dinner party like
kind of an elopement, but it's not really an elopement because they'll have maybe their parents
there, their siblings, so, you know, a lot of our events are really, are really small. And I don't
think that the neighbors would notice those at all, but they are included in the 75-count, of
course.
NEWBERG: Just to follow up in the sake of time, would you consider 50 events per year to try
and show your neighbors you are not going to have an event every week in a given year? And
I'll leave
K. HICKEY: We definitely would, but I would ask then to preten- Fm—I mean we haven't
really run the numbers, but it would be very difficult to plug in, you know, 60, 70, 80,000 dollars
of improvements to the road, maybe more depending on how much the culvert in stream crossing
cost, which is going to be the biggest expense, without being able to offset that with income.
But, I mean, if you were willing to approve that today, we would run the numbers after this, and
if we couldn't do it, then I guess we wouldn't build it.
VITOUSEK: Okay, Mr. Pipan, would you like to add your point of clarification?
PIPAN: Yeah,just,just a procedural matter, I don't think we've wrapped the applicants'
presentation. I'd like to afford Doug and Kate the opportunity to make their personal statement
before we get into too many questions. Thanks.
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VITOUSEK: Sure. Mr. and Mrs. Hickey, is there anything else you'd like to add?
K. HICKEY: Yeah, you know, at the last hearing something that we heard a lot, we heard it
from Commissioner Van Pernis, he brought this up, and I think it was a really important point
that he raised, he asked if we thought that all ag properties like ours should be zoned, or should
be allowed, to have wedding venues like ours, or should be allowed to have commercial uses.
And I think that that is a really important question, because it kind of hits at the heart of what's
happening here. I don't think that all ag properties should be allowed to have commercial uses.
I think that ag property is incredibly important to be preserved, and that that is, I mean, that's a
big part of what you do on this commission, that's a big part of what the Planning Department
does. I served as the president of the Farm Bureau, the Kona chapter, for six of the last eight
years, and, you know,preserving our local farmland is a huge passion of mine. I think that is
part of why we are farmers. But that is also why we are applying for this permit. No, we don't
think that all farms should be allowed to have commercial uses, because it's important that they
use their farmland to farm. And that's what we want to do. We have a 20-acre farm, we are
actively farming 18 of those acres. If we were to receive this permit, we would plant more
coffee. We've always wanted to plant more. We just didn't have the money when we first
bought our farm, and so it was a situation where we had to be able to earn the money to plant
more acreage of coffee, and we've never been able to earn enough to plant more. But if we were
able to have this venue, we could plant more acreage in coffee. We are asking to not farm just
10 percent of our parcel, and that includes our home that we live in and our driveway, and in
order to be able to farm the rest.
If we are not approved for a permit today, or continued, I guess, and not be approved down the
road, we will no longer be able to farm, like I want to make it really clear, we only have three
choices after this, one of those is to sell our farm. And, you know, we've been working towards
it for eight years and farming, and we've planted all our coffee ourselves, we've got all edibles
ourselves, planted our gardens, our greenhouses, our bees, our chickens, like everything we've
put in ourselves. The property before we got it was just a rural estate, you know, fenced big
property with a house on it just like our other neighbors in our CPR are, and we bought that
property with all of our savings and turned it into a farm. And now we are going to lose that
potentially because, you know, we are in a situationI'm sorry we are in a situation where
we've found a way to support our farming operations, and we might lose those that way. We
also could stay on our farm, we could keep our property, but we would have to lease our coffee
to someone else or, I mean, if we couldn't find anybody to lease it, we would have to let the
coffee just go wild and no longer cared for, which, that is the worst possible scenario not just for
our farm but for our entire neighborhood, because if a farmer stops farming their coffee and just
leaves their orchard, it spreads pests and funguses, diseases to all the neighboring farms. And so
I know our farmers are worried about the, or our neighbors are worried about the road, but they
really should be worried about driving our farm out of business and having our coffee just be
left, because that could be really devastating for so many farms in the area. Anytime a farm
stops farming, it's, that wild coffee is incredibly detrimental to neighboring properties. And if
we were to sell, you know—we have actually contracted with a realtor, we have a realtor, she
testified today, Amber Haley, we have gotten our property ready to sell essentially, because
when we got a negative recommendation, we figured that was the end of the road for us—and if
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we do sell, it's going to mean that somebody is just going to buy this property for a million in
cash, they are going to live on it, they are not going to farm it. That is what the other members
of our CPR unit are doing; they are not farming because their properties are too small to make
a—well, maybe they don't even want to farm, I don't know but 20 acres is really hard to make
a living on because you can't scale it up, it's not scalable in size very easily. And so, you know,
it, we have a nice house on our property, and I'm sure that somebody would buy it for a lot of
money and just live on it and, and be happy living there.
Yeah, so, also, I would just like to say about the neighbors and the road maintenance agreement
and all the things of the road. We are willing to mitigate any of their concerns. We've reached
out to them so many times. At the last hearing you said, get with your neighbors, try and come
to an agreement with them. I know, Commissioner Newberg, you specifically asked us to try
and reach out to them. And we did. We included that in the background packet, it's in there.
All the calls, we spoke to most of our neighbors at multiple occasions, and once we got our
traffic, our road study from our engineer, we showed it to them, they no longer wanted to talk to
us. Yeah, they wouldn't even look at the road study in some cases, because I think, I mean I
don't want to speculate to why they wouldn't look at the road study, but it just, they've told us,
and no answer in terms, we just do not want this, not anything else about, you know, we want
you to fix the road, we want you to do X, Y and Z. It was really telling to me in the first agenda
item today for the bed and breakfast that the testifier said, hey, you know, my neighbor wants to
have a bed and breakfast, could they just maybe have the access in a different spot so it wouldn't
affect me so much? Like if our neighbors are going to really say something like that to us, we
would have absolutely done it. Never once have they said if you do X thing, we would be happy
to support you. All of their things that they want us to do is pave the road into two lanes, which I
still think they might even then oppose it. Someone said there was nothing you could do that
would make us not oppose this. And it's just, it puts us in a situation where we have to convince
them to agree with us or to come, to come to the table, but they think that if they don't come to
the table, we would just not get it; there is no incentive for them to negotiate with us because
they think they can just stonewall and that's, that's all there is to it. So I'm happy to answer
questions about mitigation, I'm happy to offer mitigations, and we are happy to reduce the
events, the hours, to have no dancing, no amplified music at all. We are happy to put in decibel
meters, we are happy to do the improvements on the road, we'd be happy to pay into a road
maintenance fund. Even our vendors have said that they will be pay into a road maintenance
fund for every single event they work. But there is no road maintenance fund, like they are
creating a situation where there is no way for us to be the good neighbors we want to be and to
contribute to our road, and then using that as an excuse to oppose our permit. So please
NEWBERG: I think that's the difficulty, right, is we all have neighbors, and it's, we can't
control others. I think at the end of the day that's a good thing. But there had been mentioned
maybe by John Pipan that we haven't gotten the entire procedure, and I'm not trying to take any
of the emotion out of it; I can only imagine how moving and important this is for you folks. But
if there is more of a presentation, I think we should move forward with that—
K.
hatK. HICKEY: Okay, thank you, Commissioner Newberg, I really appreciate that.
NEWBERG: Thank you, folks.
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EXHIBIT E
VITOUSEK: Does that conclude the applicants' presentation?
PIPAN: I'm not sure Clair had more to say about the venue and the proposed use. If we can
give her just briefly a couple of minutes. Thank you.
MASON: Hi, yeah, so I will keep it very short. I think that everything has really been kind of
spoken on. One thing that is but I would really like everybody to know is,just because the
traffic has been brought up so many times, the parking lot for the building has six parking
spaces, so, this shows you how little traffic compared to what we might assume is actually going
to take place. There is not going to be one person driving themselves up and everyone just
driving up individually; it's either caravans or they have these buses, minibuses that bring up the
passengers from their location, and also to mitigate, I mean, driving under the influence. So this
is, that's not going to change on the plans, it is six parking spaces, the vendors park outside their
house so the attendees have just a few places to park once they've arrived. And, yeah, so that's,
that's one thing,just to keep in mind that that's, there is a maximum of cars that are, that can
come up and down for each event.
The other thing I just do briefly want to speak on this. I work at the State Capital right now for a
State House Representative, and we have a lot of legislation that is passing through to try and
promote ecotourism, and this is exactly what we are doing, what we are looking for at the state
level. And so it's something that our state as a whole is going to be moving towards, and I think
that this is really just kind of a little bit, maybe a little bit before its time, but that's no reason for
us to not support it at the community.
And, yeah, with the sound, I guess we already went over that. And then the last thing is just that
with the concerns for the natural environment, I specialize in sustainable construction and
restoration. That's part of the reason that Kate hired me for this project, is because she wants to
be as mindful of the natural surroundings as possible. So using not only off-grid building
methods with doing all solar and of course catchment as much as possible, and then sourcing
repurposed materials, and also just with the design keeping as something that blends in with the
natural surroundings to not inhibit, you know, anything moving forward with any concerns from
the neighbors in that regard. And then also with the landscaping, she wants to use all native
plants, so while we are talking about a two-acre, possible two-acre parcel, it's really a quarter
acre, and then even on that quarter acre, it's all going to be landscaped with plants that are
preserving our surroundings and not harming them. So, that's really all I have, and I am also
available for any further questions, if we are still doing that. And just thank you all for
volunteering your time for this.
VITOUSEK: Thank you, appreciate it. With that, is there any—does that complete the
applicants' presentation?
PIPAN: Perhaps, if I could, Chair,just one point of clarification. Six proposed parking spaces
VITOUSEK: (Indiscernible–simultaneous speech)presentation
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EXHIBIT E
PIPAN: I know, I'm sorry, six proposed parking spaces including
VITOUSEK: (Indiscernible–simultaneous speech) hold on one second, you know,just, we are
not talking over each other for purposes of the microphone. I would just ask that you can
summarize so that we can move onto questions because of the length of this presentation. Thank
you.
PIPAN: Certainly. It was just a minor point of clarification. Six proposed parking spaces at the
venue, including ADA, there would be an overflow gravel parking lot next to the existing
catchment tank closer to Waiono Ranch Road that's included in the two acres as well.
VITOUSEK: Yep, yep, we got that in our application.
PIPAN: Thank you.
VITOUSEK: Deputy Director Darrow.
DARROW: Thank you, Mr. Chair. You know, I want to say thank you to Attorney Heaukulani
for joining us. It's a pleasure to see him. He has a lot of experience with our commission; he
was on our Windward Planning Commission for a period of five years. And we appreciate his
presence here today. What I'd like to ask if there is any chance you had talked about, you had
referenced a particular case that seems to have applicability in regards to this particular situation.
I think it would be good if we could discuss that. We have our attorney present, and it might be
good to see if we can get some clarity or some direction on the issue of legality regarding
improvements on a private roadway. Thank you.
HEAUKULANL Yeah, thank you, Jeff. Yeah, I'm happy to do that. And actually, I think that
I'm just pinch-hitting for Alan, but I think between Alan and I, we can put something together
and send that over and be happy to, happy to talk to counsel about it. It's actually a pretty
interesting area of the lawI mean but how strange lawyers are to begin with but, and the
appellate courts have done a fairly interesting job of laying out the standards in conditions that
would govern this exact issue. So, yeah, we can talk to, and I'll talk to Alan, we'll be—he's, I
think he's probably out of surgery right now, but I probably just wait until tomorrow to talk to
him.
VITOUSEK: So as a point of clarification on that, we are here at the Planning Commission
today, it's to make a decision on this today. If it's something that you would like to be
withdrawn in order for further consideration, further collaboration between the legal team and
the county Planning Department, by all means, you are welcome to withdraw the application.
HEAUKULANL Oh, yeah, I did not mean to suggest—well, I'll leave it to Kate, but I'm
guessing that she believes the way I do that especially at administrative things like this,justice
delayed is justice denied. And, you know, for her to wait—you can tell how much pressure she
is under financially and emotionally about this thing. So, no, I do not want to, I'm not asking to
be withdrawn, but I'll leave it to my clients. But I would at least suggest that the case law cited
by Mr. Tuhy, including Polumbo versus Gomes be part of the consideration.
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VITOUSEK: So for those of us who are not attorneys who, you know, citing a case without
background or reference to how it applies doesn't really have any bearing for any of us on the
commission. If you would be prepared to discuss that today and how it applies and give our
corp. counsel the opportunity to address that, you are more than welcome to, otherwise, you
know, requesting additional time for them to work it out would require the withdrawal of this
application from the agenda today. Commissioner Van Pernis, I see you have your hand raised,
is there a point of clarification that you would like to add here?
VAN PERNIS: Point of order
VITOUSEK: Sure.
VAN PERNIS: Point of clarification.
VITOUSEK: Sure.
VAN PERNIS: As you maybe know, I happen to be an attorney. And Mrs. Polumbo was my
client. And I disagree with Mr. Heaukulani that Polumbo versus Gomes controls this situation in
any respect. It concerned the right of a person, Mrs. Polumbo, to use an easement, which was
restricted by Mr. Gomes. So I would say that that particular case supports the planning director's
[sic] position here, rather than opposes it. I'm certainly not adverse to counsel Mr. Heaukulani
attempting to, or Mr. Tuhy attempting to, argue their matter with the corporation counsel, but I
don't think this is a proper venue for that.
VITOUSEK: Thank you, Commissioner Van Pernis. Getting back to the question in hand, are
you guys hoping to withdraw to allow further (the applicants shake head in the negative)—okay,
we are moving forward. Mr. Pipan, you have a point of word?
PIPAN: Yes, thank you, Chair. More of a question, could this not be continued on to the next
Planning Commission meeting for more discussion to happen without withdrawal? It was
withdrawn last September, and if that adds many, many months to the process, we'd like for all
the commissioners to have a chance to be heard their concerns, their feelings about this project
so that if it is continued, if there is a sliver of hope that it is approved, that we could address
those concerns in the next month; however, if it, if it looks highly unlikely, let's, let's settle it
today, please.
VITOUSEK: Absolutely, deferral is always an option for the commission to consider. It would
have to be the commission to make a motion to defer. My question was in regards to the
statement about trying to work with the commission later, or the corporation counsel later. So
it'll be up to the commission to decide how they would like to proceed. Mrs. Hickey.
K. HICKEY: Yes, I just wanted to speak to the issue of, you know, whether or not we can
improve the road, being an easement holder on the road, which is what our attorney was
speaking about. That's the court case that you are asking about, Chair Vitousek. So my
perspective is that if you all were planning to approve with a condition that we improve the road,
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then if we are not allowed to improve the road, then we won't be able to meet that condition, and
it's basically a denial of the permit. So it would be, my preference would be that you would
approve with the condition that we make the improvements, and if then we find out that legally
we are not allowed to make them, which is not our position, we think we are allowed to make
them, but if down the road we find out we are not allowed to make them, then that's the end of
the road; we wouldn't be able to have the permit. Also, we would like it if you conditioned the
permit on us completing the road improvements before starting to use the venue. Originally, we
had asked two years. John had said, well, how long do you think it'll take to do that? And I
said, I think we'll be able to do it really quick. But he wanted to put something conservative in
there just in case. But we have already spoken with the company that would be digging our
septic, and they also said that they could do all of the road improvements that we have on our list
of things to do, and we could do those first. So, you know, if there is any way you are leaning
towards giving us this permit and approving this permit,please just make those conditions, and
we will meet those conditions, and if we can't, then we can't have the permit.
VITOUSEK: Thank you. Commissioner Carr SmithI guess before I start with Commissioner
Carr Smith, I will say that I think we are now ready for questions by the commissioners. Is
that—my understanding, right, presentation is over, we are moving forward with commissioners'
questions. Commissioner Carr Smith,please go ahead.
CARR SMITH: Thank you. I was just wondering, so, what step do you have to take so that you
can become clear as to whether you can make unilateral changes to the road, improvements to
the road, or not?
PIPAN: Thank you, Carr Smith. I would say to make them and see what happens. It seems like
all of the landowners, all of the neighbors, have been doing this in the past for all the
maintenance required on the road. I don't see how this is any different. So I would defer to Mr.
Heaukulani, if there are additional legal matters, but it seems like the traditional practice in this
neighborhood is for individual owners to make necessary improvements when deemed
appropriate for the use of the road, the reasonable use of the road.
CARR SMITH: Well, it seems like some of the things that the Hickeys are proposing to do
perhaps go beyond a normal maintenance that might occur.
K. HICKEY: ICommissioner Carr SmithI can see why you would think that. Certainly,
that would be the case for the signs, you know, whether or not the signs could go up. But as far
as the culvert goes, that is something that was there and was put in improperly because it wasn't
an engineer who had consulted, it was just a neighbor who had done it, and it washed away. And
so the reason we don't have a culvert right now is because neighbors put it in just unilaterally.
The same goes for the pull-offs; there are a lot of pull-offs already, but they are, you know, grass
ones. So our engineer has suggested certain spots that we could have paved pull-offs so that they
would always be safe even if it was raining, and certain things like that. I don't see, unless the
neighbor wanted to oppose those improvements only to prevent our venue, I don't see why
anyone would oppose them, because you've heard the testimony from all of them; they want
improvements to the road. And we want to improve it.
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EXHIBIT E
CARR SMITH: Right, I understand that. What about the owner of the road, International LLC?
Have you been in touch with them?
K. HICKEY: Yeah, I would like to speak to that. That owner is a registered corporation,
registered in Belize, their registered agent is in Canada. We have sent them letters. They do not
have a phone number. Nobody will tell us who they are. There is a lot of mentions in the
petition of, I know that the road owner hasn't been told. But we don't know who the road owner
is. And they also owe, you know, $18,000 in back taxes, and I know a lot of the other people
who live on the road are angry about the condition of the road. So in my perspective is that the
road owner is hiding their identity so that they don't have to engage with this issue.
CARR SMITH: Hmm, okay, my only issues at this point are the road and how to deal with that
since they've agreed to limit number of events and people, which I would also support. So I'd
even be in support of deferring this and giving them another month to figure this road out.
VITOUSEK: I would ask a follow-up question on Commissioner Carr Smith's question. I think
one of the issues we are looking to avoid is what you described with the previous culvert
washing out, creating a health and safety hazard. Question for the county Planning Department,
would preparation or putting in a culvert of this nature within a drainage, that's something that
would likely require a County of Hawaii grading permit, wouldn't it?
KAY: I guess thatoh, Jeff?
DARROW: Go ahead.
KAY: I was going to say I would guess it would depend on the area that they were proposing to
grade, to see it would be consistent with other requirements of county code relative to drainage,
yeah.
VITOUSEK: I mean they might be able to do it without hitting the maximum square footage, or
cubic yardage, of material, but I can't imagine that they can install a culvert within a road
without triggering some sort of permit whether it be (indiscernible—simultaneous speech)
KAY: Well, again, this is a private road lot, and so, you know,just like any other piece of
private land, it would have to meet the size requirements to trigger the requirement of a grading
permit, right, so
VITOUSEK: Even if it affects drainage?
KAY: I, you know, I believe that's the case.
VITOUSEK: Okay, I mean that would be an issue that can be brought up in terms of theoh,
Jeff, go ahead, you've got(indiscernible—simultaneous speech)
DARROW: Yeah, I mean, normally, Engineering Division in Public Works, you've got to check
with them; you never know if you are going to trigger some sort of grading permit. Whenever
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EXHIBIT E
you are diverting the flow of water, it's going to, it could have an impact on, you know, the
adjoining parcels or even parcels further down. So that's where you really need to make sure
before you do any improvements, that you check to make sure that you, you don't need a permit
or you do need a permit. Again, diversion of water, they get complaints about that all the time
VITOUSEK: That's a big risk in this area with Wai`aha Stream being one of the biggest flood
zones. And planning to install a culvert without knowing the engineering, without understanding
what(indiscernible—simultaneous speech)
DARROW: I would, I would guess that they would require some sort of permit for that.
K. HICKEY: To be clear, we would absolutely comply with whatever
DARROW: Sure.
K. HICKEY: requirements there were. Regarding the culvert, it, there is a carveout
actually, Christian had a picture of it, I don't know if you can bring that up again easily but it's
a stream that you have to drive like in the streambed, and so what the engineer proposed was
somethingI don't know if culvert is actually, exactly the right word—but something more
along lines of the bridge. So all the water where it goes now would go in the exact same spot,
but it would make traversing it a lot easier for the cars that need to go through.
VITOUSEK: I feel like those are engineering questions that—
K.
hatK. HICKEY: Yes.
VITOUSEK: —are, you know, something that would have to be used to determine whether a
permit is required. An issue comes because
K. HICKEY: Sure.
VITOUSEK: you are not the landowner.
K. HICKEY: Sure.
VITOUSEK: Can you then get a permit? You know, it's one thing to just go out and do
something and see if your neighbors sue you, it's another to go in and get the permit that's
required to do this to the engineered standard that will prevent health and safety issues
downstream.
K. HICKEY: Sure.
VITOUSEK: So, to me, I don't feel like we have enough information, I don't feel like we've got
guidance from our attorneys that give us, give me confidence that we can move forward with this
with what we have. I would be also willing to go along with Commissioner Carr Smith's
suggestion of possibly deferring for another month. Commissioner Van Pernis.
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VAN PERNIS: Yes, if you know, I have three written questions, I now would like to reduce it to
two; the first one can be deleted. And I'd also like to say that there is a whole lot of other
improvements that are necessary for this road, which I have seen, not just a culvert. And the
issue here is liability, the county's liability, as well as the other landowners'. And nobody has
addressed how the county's liability could be limited by this road and the perhaps-illegal
improvements. We don't know what improvements are being referred to; they just talk about
culvert. My questions, there are only two, I'd say to ask now goes to that issue.
VITOUSEK: Mr. Kay, would you mind reading Commissioner Van Pernis's questions 2 and 3?
KAY: Happily, thank you. Question: "Will you agree to improve and maintain that portion of
the road that goes to your property to two lanes at your sole expense, and to indemnify the other
road owners and the County of Hawaii as to any accidents or claims by your visitors, guests and
vendors concerning the road?"
K. HICKEY: So, first to speak to the second part about indemnification, yes, we would be
willing to indemnify the county and the neighbors. We have already started the process of
working with our insurance agent. We can add all of the other, the other landowners on the road
as additional insured. I don't know if we can add the county, I didn't ask that, but I guess I don't
see why not, so that our liability policy would cover any accidents on the road from anything
arising from our venue. So that's the first thing. Also, we would be very open to and willing to
do a condition on the permit where every single guest to the venue signs a waiver before they
come on the road, saying that they will not sue any person on the road or any accidents or issues
that'll arise on the road. We can definitely do that. That waiver, that's very simple, I've talked
to my lawyer about it, that part is very simple. Because we have the guest list before the events,
it's not a problem to have everybody sign before they even come on the road because we can
have them electronically sign. So as far as liability and indemnification go, we have a plan to
make sure that that is a non-issue.
For paving the lane to two lanes, the road to two lanes, I would just ask no, we aren't willing to
do that, and the large part of that it's just incredibly expensive. It would be a million dollars.
You know, we are trying to keep our farm in business; if we had a million dollars, we would just
not farm and just do, live with our million dollars, I don't know. That, we definitely can't do
that. But also, the proposed additional traffic on the road, if you look at page 155 in the
background report, is onlyoh, page 36, sorry, in the background report—it's only a three
percent increase on the current use of the road, so I don't know why we would have to pave the
road to two lanes for a three percent increase in traffic on the road. Um, yeah.
VITOUSEK: Okay, I think you've answered the question, thank you. Commissioner
Van Pernis, do you have any follow-up questions?
VAN PERNIS: Yes. First of all, isn't it correct that—well, as an attorney, I believe that you can
get around releases quite easily, for instance, full disclosure ahead of time—and there's always
questions about disclosures. And how do you keep the adjoining, or other, landowners from
being sued and having to incur attorney's fees, even if there is indemnification? And then the
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third issue is how much of indemnification. Are you going to limit it to the insurance amount, or
are you personally going to be liable or what? It seems to be a legal thicket that you are asking
for.
K. HICKEY: I mean, well, to answer that question, I'm not sure if all the commissioners know,
but I also am an attorney, and, you know, this is just, we can insure for the, for the full amount, I
mean we were considering a $5,000,000 policy. I don't foresee there being an issue that would
go above that, but we could go higher if there is a higher policy level that the commission would
like. As far as waivers go, we have an arbitration clause currently in our contract, and we would
have an arbitration clause in any of our waivers. An arbitration clause would address the issue of
attorney's fees for any of our neighbors because they would be forced to go to arbitration and
would not be able to sue our neighbors because of their signing of the arbitration clause. So that
would hopefully address that. And also, any judge worth their salt would throw out a case that
sued all of the neighbors if there was already a waiver in place saying that they could not sue the
neighbors. So that's our plan.
Also,just to say, if you look in the report that we provided, even in the current state of the road,
there have only been five accidents on the road in the last 15 years, and those five accidents have
all been what are called minor by the Hawaii County Police Department. Also, none of those
accidents have been on the days we had events, and we've had over a hundred events like I
testified to, and they have never occurred on a day we had events. So, you know, I think we are
willing to take every precaution that we can take, but also, we are taking precautions for things
that are very unlikely.
VITOUSEK: Thank you, yeah, we've got that information in our packet. Commissioner
Van Pernis, proceed to question 3?
VAN PERNIS: I have a follow-up briefly before question 3. One accident with one of your
busses filled with people would quickly exceed $5,000,000. It'll probably even exceed
$10,000,000. And maybe I'm not worth salt, like you say, but arbitration clauses and the
waivers are not guarantees that there won't be litigation, and that it can be limited to a certain
amount.
K. HICKEY: I mean, in that situsorry, first, Commissioner Van Pernis, I'm really sorry, I
didn't mean to say anything disrespectful to you, I meant judges would throw out the case, not,
not the attorneys. As far as buses go, any bus company also has an extensive amount of liability
insurance. What we are talking about are insurance company suing insurance company. Our
insurance company, the bus insurance company, all the insurances going with each other. This
isn't a situation where they would draw in unrelated parties. It, that's just not, it's not a situation
that we are facing or that we see as a problem.
VITOUSEK: Thank you
VAN PERNIS: One follow-up question.
VITOUSEK: Yeah, last one, and then we'll go, move onto
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VAN PERNIS: Number 3.
VITOUSEK: Go ahead.
VAN PERNIS: Doesn't the ownership by the other—since she said she's an attorney—doesn't
the ownership of the other parties with one-tenth liability guarantee that they are going to be sued
along with you?
K. HICKEY: That's not my reading of it. I think that in any case where there is a lawsuit, the
lawyers representing the, the people who are suing, those lawyers would decide who the best
people to sue are, and I don't think that when you have a multi-million dollar insurance
company, or insurance policy of ours, you have insurance policies of the bus company or
whatever in this situation, the car insurance company, of the driver's, I don't think that any
reasonable attorney would also draw in completely unrelated parties just to have it thrown out
and have Rule 11 sanctions against them for bringing, you know, lawsuits that they shouldn't
bring.
VITOUSEK: Okay, I think we've had a pretty good discussion on liability and still got some
questions, but I think we can still, I feel comfortable moving forward to item 3, question 3.
KAY: Yes, thank you, Mr. Chair. Question 3: "Has there been any penalty or fine for any time
of operation of the commercial operation on this agricultural property before the application for a
permit? If so, what was it?"
K. HICKEY: No, there never was. It wasn't until we decided we wanted to scale our building,
like to scale our business in building a building that wasn't our house, that we even knew we
were violating. We never received a violation, we never received a complaint, we didn't know
that we were violating. I realize that that's not an excuse; we should have known, but the truth is
that we did not know. And, you know, what's ironic about all of that now is that it seems pretty
clear to me that if we would have just never applied for this and then never tried to build a new
building, we could have just continued on like we had been before. We wouldn't be in danger of
losing our farm like we are right now for trying to come into compliance. No, so, the answer is
no; we have not received any violation.
VITOUSEK: Okay, thank you. Commissioner Van Pernis, are there any additional follow-up
questions? If not, I'll move to some other commissioners. You're good?
VAN PERNIS: I'm done.
VITOUSEK: Okay, thank you very much. I saw there's a lot of hands up. Commissioner
DeFranco, please go ahead.
DEFRANCO: Hi. I'd just like to speak, you know, I know we were just talking about the road
and the neighborhood, but I think there were a lot of other points. There's points about the
CDP's position on this. I served on that council for the last five years. And there's points of this
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being important agricultural land. And the idea of agri-tourism and some other options that you
could explore as a farm to save your farm. I, even, even if for some reason, right, I don't know
how this is going to go, but your potential and your expertise in creative visioning, and all the
people that are supporting you, you might be able to find some, something else to support
yourself and not think that because this particular venue couldn't be done there, that some type
of agri-tourism couldn't be done there, or you could invent some kind of coffee tasting situation,
you know, it's, you know, we share your frustration, but it is, it is up this long road, it is in
agricultural land. And so there is a lot of other considerations to be thinking about here.
K. HICKEY: Yeah.
DEFRANCO: Anyway, I just wanted to
K. HICKEY: No, I appreciate your bringing that up, Commissioner DeFranco, and I'm happy to
talk about other uses. We have tried so many different types of agriculture; we have been at
multiple farmers markets, we baked bread, we tried a, we had a home brewing store where we
sold the pies to people who wanted to brew their own beer. We have literally I feel tried
everything. We do host coffee tours, or we did. We were hoping to apply to host coffee tours in
the same space down the road after we got this permit so like on days that we weren't doing
events. But we wanted to wait and kind of see if we could, how we could work that in.
Basically, we don't have a space to host coffee tours unless we host out of our home. We had
been doing that in the past. It was a money-making, generating, area for us. However, we only
produce about 3,000 pounds of roasted coffee a year, and we run out. Like we are selling all of
our coffee at the full price; we sell it for $60 a pound, I don't, that's our lowest cost, many of,
much of our coffee is $80 a pound or more. I don't know how much you know about coffee
farming, or the other commissioners, but that is an extremely high price for Kona coffee, and we
are already
VITOUSEK: (Indiscernible—simultaneous speech) getting a little sidetracked
DEFRANCO: Yeah, I didn't bring that up for you to explore here while we are talking
K. HICKEY: Okay, I'm sorry
DEFRANCO: I'm bringing it up to just sort of expand the conversation here. It isn't just
about the road, there was some other very valid things that the county said about why, how they
felt about it, and including what the CDP felt about it, about this. So I think that we just have to
consider a lot of, a lot of different things here, you know. That's why I brought it up.
K. HICKEY: I'm not sure if this is allowed, but could I ask you a question, having been a
member of the Kona CDP? My question is, I realize we have important agricultural land, and we
want to, we want to continue to farm that important agricultural land, 18 of the 20 acres. So, do
you think that that would not fall in line with the, negate, the aims of the Kona CDP?
DEFRANCO: I, you know, I can't speak to that, either. So, I'm sorry, but I can read what the
ruling was and I can read the CDP, and, you know, see how they recommended, how they
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recommended the use of land, so but I do grow coffee, and I am a farmer, and I have gone
through all of this, so I can share in your investment, in your vision, in your passion, and also to
look at a bigger picture here that's happening, okay? Thank you.
VITOUSEK: Any other questions from the commissionersoh, I see, John, would you like to
make a point of clarification or anything there?
PIPAN: Yes, thank you, Chair. Just referencing the Kona CDP, there was a little discrepancy in
the negative recommendation and the positive recommendation on the exact language within the
Kona CDP; some of the sentence was omitted, and some language was added to the exact
language in the Kona CDP, which is on LUPAG, Extensive Agricultural Lands, "a Special
Permit for an ecotourism related or other non-agricultural use may be considered provided the
proposed project is consistent with the Kona Mauka Watershed Management Program and
reviewed by the Design Center," and it goes on. That was the sentence, it says, "On LUPAG
Extensive Agricultural Lands,"not"only on LUPAG," and there is no Kona Mauka Watershed
Management Program. So I don't see how that restricts (indiscernible–simultaneous speech)
VITOUSEK: Yeah, we've got that in our packet, we've got that
PIPAN: Okay.
VITOUSEK: Yeah, we've got that in our packet and considered. Let's see, who had their hand
up? Commissioner Newberg, you had your hand up, correct?
NEWBERG: Thank you, Chair. The longer this discussion goes on, I just, I don't see the
feasibility. I see the need to make the improvement so they are safe transit up to the space, I
mean, if we are taking that at the permit level, having the amount of busses available that many
times a year to facilitate where they come from. And I just wanted to end with the statement
here that in regards to ecotourism, we all say the word, I just wanted to look it up, and it says that
"responsible travel to natural areas that conserve the environment, sustains the well-being of the
local people, and involves interpretation and education." And I think when you look at that, it
sounds great, but when they say local people, I don't think they are saying one property amongst
quite a few on a mile-and-half road. And from the heart I just don't see how this is feasibly
possible between comforting your neighbors with a reduced amount, you know, not having to
have more than one event every week, and then trying to make a road safe, yet have it all pencil
out. I, I feel for you, I just don't know if this is the way to proceed or if this is the location that's
viable. And that's just how I see it. Thank you.
VITOUSEK: Thank you, Commissioner Newberg. If there are—are there any additional
questions? I'd like to take questions from the commissioners, and then we can propose a motion,
and then we can have further discussion on it. (No audible response) Okay, seeing no further
questions for the applicant, is there a motion that can be made by any of the commissioners on
the agenda item? Commissioner Van Pernis.
VAN PERNIS: Yeah, I would like to discuss it, but the motion is to deny, or to have a negative
recommendation, on this SPP 21-000222.
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VITOUSEK: One clarification, it would be to deny, not a negative recommendation, as we are
the issuing body. But understand the intent. Is there a second? (No audible response) Okay, I
don't, I don't see a second, so we will have to
NEWBERG: I'll second that motion.
VITOUSEK: Okay, we have a motion by Commissioner Van Pernis, a second by Commissioner
Newberg, that we deny the Special Permit application. Any discussion? Commissioner
Van Pernis.
VAN PERNIS: Yes. You may recall that the applicant said that she wants to see ag property
preserved. That's ag property other than hers. She wants commercial activity on her property.
An analogy or reference to the school, the Penaloza school, that we dealt with today is somehow
comparable to this; it is not, because it's in the urban expansion area, it's not a prime agricultural
property like this is.
There is all kinds of new information or new positions or different things that have been
mentioned by the applicant, and there is also,just yesterday, we were still receiving information
and documents, so I think that's not enough time, and all this new stuff requires the denial and
they can apply again—it was all the new stuff, I don't know, I haven't seen all the new stuff.
Some of it came in just yesterday. I hope the applicant and the Planning Department would give
us a little more time to look at this sort of thing.
And another thing, they bought agricultural property here, with the road. They knew what they
were buying, they knew that they were not necessarily, absolutely entitled to any kind of a
permit. They bought that property, they bought this road. They are only farming in coffee eight
acres. They may be farming elsewhere, but I don't know that they can't make a living farming
properly.
They say all the other landowners shouldn't be listened to because they are just rich guys living
in big houses up there. Well, Wendy Mitchell worked for, as a social worker, and her husband
worked, too, and they farmed on the side, so we shouldn't be talking stink about, about them just
because these people choose, or try to work coffee and weddings, rather than else
VITOUSEK: Commissioner Van Pernis, let's try to avoid putting words into their mouths
VAN PERNIS: Okay
VITOUSEK: you're welcome to state your opinion, but please don't try to state theirs.
VAN PERNIS: And all the other neighbors bought agricultural rural land and the peace and the
quiet and other things that go with it. What about them? You go a little bit commercial here, a
little bit commercial there, on ag land, and pretty soon it's all gone. Isn't this a bad precedent?
More and more Special Permits overcoming zoning, pretty soon you destroy the ag zoning. We
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are here, the commission is here, to represent West Hawaii, not the Hickeys. And we need to
consider all of West Hawaii, not just the Hickeys. Thank you.
VITOUSEK: Thank you, Commissioner Van Pernis. Is there any other discussion on the
NEWBERG: I, I just wanted to follow up, if I may, Hickeys, and this isn't easy for myself. I
can see the passion, and this was not easy for myself to second. And this may seem like a
strange time to tell you to not lose hope, but I'm just looking at the entire entity involved and
where it is and, you know, looking at how it beganI'm sure it started with a few events but,
you know, somewhere around 30 events a year or so adding up to about a hundred events, and I
can only imagine the pride you took in your area and your venue and being there, I just don't see
how it goes from that to an application of what we have in front of us and making that a palatable
decision moving forward. So, in closing I just want to say this wasn't an easy thing for me to
second in denial, and I wish you folks the best in future. Thank you.
VITOUSEK: Commissioner Carr Smith.
CARR SMITH: Thank you. Well, I understand the need to diversify farming, I understand how
challenging that is. And based on testimony and your presentation, I understand the need for a
venue in the area. I support all the locals that work on your venue in the past and their plea for
this, I totally get that. To hear a florist offering to give a portion of her earnings toward the road,
it's like oh my god, that's, it shouldn't come to that, right? Yeah, so I'm not supporting the
motion. I would have supported a deferral because I thought that there was some progress made,
so I won't be voting in favor of this. And last, I want to apologize for the extra words that one of
the commissioners felt the need to insert about how we are representing West Hawaii and not
you; you are a part of West Hawaii, you are a part of the community, and you should be treated
in an equal fashion. That's all I have.
VITOUSEK: Commissioner Carr Smith, would you be in favor of approving the application or
deferring the application as a
CARR SMITH: I had already written my motion to defer and all the reasons why, but we've got
a motion on the table, so.
VITOUSEK: Thank you. Commissioners, is there any other discussion? (No audible response)
Okay, seeing none, let's roll call.
KAY: Okay, thank you, Mr. Chair. Commissioner Van Per the motion on the floor is for
denial—Commissioner Van Pernis?
VAN PERNIS: Aye.
KAY: Commissioner
VAN PERNIS: Can you hear me?
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KAY: Yes, sir. Commissioner Newberg?
NEWBERG: Aye.
KAY: Commissioner Carr Smith?
CARR SMITH: No.
KAY: Commissioner DeFranco?
DEFRANCO: Aye.
KAY: Commissioner Kanuha?
KANUHA: Aye.
KAY: Chair Vitousek?
VITOUSEK: Seeing that my vote is meaningless on this one, I do agree with Nancy that I would
be in support of deferral. I don't see the application is being in a place where we can approve it,
but if they had more time. I'll, I'll vote no.
KAY: Thank you, Mr. Chair. Motion to deny carries, Four to two.
PIPAN: Thank you all for your time and patience.
VITOUSEK: Yeah.
K. HICKEY: Thank you all. I really appreciate your taking the time to hear us out. I just want
to be clear for the next applicant that comes before you. We are not going to be able to make it
as farmers. And your decision today is
D. HICKEY: We are shutting down our business
K. HICKEY: Yeah, this is it—
D.
tD. HICKEY: —right now
K. HICKEY: today (indiscernible—simultaneous speech) down, so, I know that the decision
is the decision, but this 20 acres of ag land, 18 of which were being actively farmed, are no
longer going to be farmed. And so, you know
VITOUSEK: Thank you. Again, thank you for the time. You'll be notified of the decision in
writing.
CARR SMITH: Hopefully, there is something bigger and better out there for you.
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The hearing ended at 3:21 p.m.
Respectfully submitted,
Noriko Sauer, Secretary
Leeward Planning Commission
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