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HomeMy WebLinkAbout2021-07-01 Windward Exh C Kirpal Meditation & Ecological Center SPP 20-220 WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JULY 1, 2021 A regularly advertised hearing on the application of KIRPAL MEDITATION AND ECOLOGICAL CENTER, LLC (SPP 20-000220) was called to order at 10:15 a.m. via live- stream online meeting, with Chairman John Replogle presiding. COMMISSIONERS IN ATTENDANCE: Dean Au, Joseph Clarkson, Dennis Lin, Thomas Raffipiy and John Replogle ABSENT AND EXCUSED: Gilbert Aguinaldo, Michelle Galimba ALSO IN ATTENDANCE: Malia Hall, Esq. (Counsel for the Commission), Zendo Kern, (Planning Director), Jean Campbell, Esq. (Counsel for the Planning Director), Eric Cook (Planner), Maija Jackson (Temporary Assignment Program Manager), and Melissa Dacayanan-Salvador (Windward Planning Commission Secretary) APPLICANT: KIRPAL MEDITATION AND ECOLOGICAL CENTER, LLC (SPP 20-000220) Application for a Special Permit to legitimize the operation of a meditation and ecological center and retreat on 10 acres of land situated within the State Land Use Agricultural District. The subject property is located at 13-260 Pohoiki Road, approximately 0.5 miles west, or mauka, of the intersection with Kalapana-Kapoho Beach Road, Pohoiki, Puna, Hawaii, TMK: (3) 1-3- 008:005. Secretary's Note: "—" indicates that there were technical and/or internet difficulties, which made the conversation inaudible. REPLOGLE: We will now go on to unfinished business and thank you all in the second agenda item for being patient with us. It's much appreciated. So, the applicant is Kirpal Meditation and Ecological Center, LLC, SPP 20-000220. Application for a Special Permit to legitimize the operation of a meditation and ecological center and retreat on 10 acres of land situated within the State Land Use Agricultural District. The subject property is located at 13-260 Pohoiki Road approximately .5 miles west or mauka of the intersection with Kalapana-Kapoho Beach Road, Pohoiki, Puna, Hawaii, TMK: 3-1-3-008:005. HALL: John, I'm sorry,point of order one second. REPLOGLE: Yes, ma'am. HALL: Can we just get a motion to continue Item number 1 to the next meeting? 1 EXHIBIT C REPLOGLE: Oh, okay. HALL: Yeah. REPLOGLE: Yes. HALL: Thank you. REPLOGLE: Okay, fellow Commissioners I would like a motion to continue Item Number 1 Connections to the following month in August at our next meeting. CLARKSON: So, moved. REPLOGLE: It's been moved by Mr. Clarkson and seconded by Mr. Lin, all those in favor of doing so, please say aye. AU: Aye. CLARKSON: Aye. LIN: Aye. REPLOGLE: Aye. So, it's moved and we're moving Connections to the August— HALL: Also, um' sorry John. Oh, sorry yeah um' is Commissioner Raffipiy coming back in, does somebody need to allow him back in? REPLOGLE: Oh, right. HALL: But, sorry you can finish what you were saying please. REPLOGLE: Okay. So, the applicant Connections New Century Public School, Public Charter School/Community Based Education Support(CBESS), SPP 12-00138 will be moved to our next scheduled Commission meeting in August. All those in favor say aye, again. LIN: Aye. CLARKSON: Aye. AU: Aye. REPLOGLE: Okay, so, it's done, and it appears that Tom has returned. But I can't see you brother? Okay, so onto unfinished business again, Item Number 2 Kirpal Meditation and Ecological Center, LLC, SPP-20-000220. Application for a permit, a Special Permit to legitimize the operation of a meditation and ecological center and retreat on 10 acres of land situated within the State Land Use Agricultural District. The subject property is located at 13- 2 EXHIBIT C 260 Pohoiki Road, approximately 0.5 miles west or mauka of the intersection with Kalapana- Kapoho Beach Road, Pohoiki, Puna, Hawaii, TMK: (3) 1-3-008:005. The presentation will be made by Eric Cook a planner for the Planning Department. Mr. Cook. COOK: Thank you Chair Replogle and good morning Commissioners, if you just give me one moment, I will share my screen. Okay, is everyone able to see? REPLOGLE: Yes. COOK: Alright, great. So, as Chair Replogle mentioned this case is for a Special Permit and with that we'll get right into the presentation. Oh, my goodness, the subject property is outlined in red and is also marked on the island reference map in the red circle. The property is located in the Puna District specifically along Pohoiki Road approximately half a mile west of the intersection with Kalapana-Kapoho Beach Road. The applicant is requesting a Special Permit to legitimize the operation of a meditation and ecological center and retreat. In addition to offering instruction in meditation, yoga, health and fitness, the center will provide overnight accommodations for up to 28 guests in 17 cabin-style units and 2 residential hales. The applicant proposes construction of a new 2,500 square foot community building, in addition to converting numerous existing buildings into retreat facilities. The applicant plans to offer 10 group retreats a year for approximately 7 days per retreat. In between retreats they will offer cabins and hales for rental to the public. The subject property outlined in red and surrounding properties to the south are zoned Agricultural-l-acre, neighboring properties to the north are zoned Agricultural-10 acres. The subject property is and immediately surrounding properties are within the State Land Use Agricultural district represented in light green. Other properties in the area are designated Conservation represented in light blue. The subject property and surrounding areas are designated as Important Agricultural Lands by the General Plan LUPAG map and is represented in light green. Other nearby properties are designated as Extensive Agriculture represented in white and Open which is represented in dark green. This is the applicant's um' their provided proposed site plan. The property is improved with a permitted 500 square foot efficiency dwelling built in 2007, a permitted 392 square foot octagonal gazebo built in 2007 and three utility sheds with active, open permits. The applicant intends to maintain the dwelling as the residence of the landowner. There are 18 unpermitted structures, including a 1,920 square-foot covered exercise area, two 1-bedroom residences, a 289 square-foot hexagonal hut, a 256 square-foot hexagonal but and various sheds of various sizes. These structures will either be permitted and converted into buildings for the proposed use or demolished. In addition, there is an existing unpermitted greenhouse and four catchment tanks of 4,000 gallons each. The building that is denoted in yellow here, that is proposed to be the new 2,500 square-foot (50'x50') community building which will include a certified kitchen, community bath, shower facilities and storage. The buildings here, the structures denoted here in pink along this border that is shed number 7, shed number 22, and building number 21. These are the structures that are encroaching the setback and are denoted there in pink. These structures will be addressed in revised condition approval number 3. 3 EXHIBIT C The larger aerial view depicts the subject property outlined in red in the surrounding context. The smaller image in the bottom left is a zoomed in view of the most developed portion of the site to provide a more detailed view of the current layout and location of existing structures. Subject parcel and surrounding land consists of native shrub land and forest. Majority of the surrounding lots are used for agriculture or vacant and undeveloped with few permitted dwellings. There is vacant land to the southeast a 5-acre parcel of land with a 500 square-foot storage structure to the west and four vacant parcels of land to the northeast. These are the site photographs provided by the applicant. The photo on the left is taken from the entrance of the subject property looking west on Pohoiki Road. The photo on the right is taken from the entrance of the subject property looking east on Pohoiki Road. Following the approval of a petition for a standing in a contested case hearing and subsequent mediation, the parties have agreed to several revised conditions of approval. There have been 3 conditions that have been revised. This is the first one, revised Condition Number 3. This revised condition addresses the encroaching structures and how it will be dealt with. Encroaching structures adjacent to TMK: 1-3-008:067 will be moved out of the setback. Structures encroaching on other yard setbacks will either be moved out of the setback or will be handled by acquiring a yard setback variance. The second amended condition is revised Condition Number 8. This revised condition addresses quiet hours. Quiet hours will be from 9:00 p.m. to 9:00 a.m., with the, sorry, with the exception of ground maintenance such as lawn mowing and weed whacking which will be allowed to begin at 8:00 a.m. This condition also addresses decibel sound limits during the hours of operation as well as during quiet hours. The third revised condition is revised Condition Number 10. This condition addresses the use of the property as a venue for weddings or concerts. Based on the proceeding the Planning Director's recommendations is approval with conditions. Following reaching an agreement on the revised conditions of approval in mediation the Intervenor, Ms. Keri Dickie-Clark has withdrawn her Petition for Standing in a Contested Case via her email dated June 4h, 2021, the Commission should have received this documentation sometime this week. And with that I'm happy to answer any questions the Commission may have. REPLOGLE: Thank you Eric. We will now take questions from the Commissioners, and you may either ask people who spoke in behalf or, oh, wait a minute. We have to move to the applicant's presentation first do we not and do them all at once? CLARKSON: Point of order. REPLOGLE: Yes, please. CLARKSON: Maybe I misunderstood, but I thought your presentation at the beginning of today's meeting indicated that we do not ask questions until after a motion for action has been made on an application. Was I wrong in interpreting your statement that way? 4 EXHIBIT C REPLOGLE: I don't believe so. This is new to me. HALL: John, um' yeah the question, you can ask questions the point of the other portion of his opening statement was that the deliberations and opinions. You know once we cross that, that should be after the motion is made. Um', so just a reminder you guys do a good job of it, but, just a reminder that questions only during you know before a motion is made and then after that you guys are allowed to deliberate and discuss. CLARKSON: Okay, I understood. We can ask questions of testifiers, the applicant, or staff any time before a motion is made? HALL: Yeah, and the only adjustment was that we wanted to do the presentation and the applicant's presentation together and then questions so that we don't break that up and so you guys have more information before questions. CLARKSON: Thank you. REPLOGLE: Okay. So, Mr. Clarkson you had a question? Not for the staff, no? Okay — CLARKSON: We're waiting, I do, but, we're waiting — REPLOGLE: — okay . CLARKSON: — after the —" REPLOGLE: Now, we will have the applicant's presentation. Don't throw me curve balls (laughing). Ronald Kim Esquire, agent for the Applicant, Tom Yeh Esquire, agent for the Applicant, Leonard Sussman, Founder of Kirpal Meditation and Ecological Center and Brandon Elbrecht, Director of Kirpal Meditation and Center. Would you please raise your right hand as I swear you in. Do you swear to affirm tell the truth on this matter now and before the Windward Planning Commission, please state your name and the town you live in before you begin? Do you? SUSSMAN: I do, Leonard Sussman. REPLOGLE: Okay. SUSSMAN: Battleground Washington and Pahoa. REPLOGLE: Okay. Uh', is Tom Yeh here? KIM: No, it's just me and Mr. Sussman who are representing the applicant this morning. REPLOGLE: Okay, thank you. Alright,please go ahead. 5 EXHIBIT C KIM: Okay, well good morning, um' Chairperson and Commissioners, thank you for hearing our Special Permit this morning and thank you to the Planning Department and all of its staff for all of their assistance in getting to this point. So, looking at the purpose for a Special Use Permit is to allow for their unusual and reasonable use of land situated within the agricultural district. LIN: I'm sorry Mr. Kim, I believe there's a point of order. John did you ask, did you ask the applicant if they agree with the Planning Director's — REPLOGLE: Have you, have the applicant's, you the applicant's Mr. Sussman and Mr. Kim. Have you've received the background and recommendation and revised reports from the Planning Department? Do you agree with the Director's recommendation including proposed conditions? KIM: Yes, and yes. SUSSMAN: Yes. REPLOGLE: Okay, go ahead with your presentation, I apologize. KIM: No, no, no, no problem. I apologize for missing that step. Okay, so, looking at the purpose for a Special Use Permit is to allow for the unusual and reasonable use of land within the agricultural district which will not be contrary to the effectiveness and objectives of Chapter 205. Um' HRS Chapter 205, has the objectives of preserving agricultural lands with a high capacity for intensive cultivation but this Chapter also recognizes that agricultural districts include areas that are not used for or are not well suited for agricultural and ancillary activities by reason of their topography, soils and other related characteristics. So, this why we allow for uses that are outside of the enumerated agricultural uses in the agricultural district. The chief concern when you are looking at a Special Permit really should be preventing what we call the urbanization of agricultural land. And given what we've shown in the application and the Center's ongoing application, ongoing operations this actually is an ideal type of operation for a Special Permit because we really not urbanizing the land at all. The Planning Department's report notes that the operations are confined to approximately 30 percent of the area of the subject parcel. The rest of the parcel is used for agricultural or cultivation or landscaping but most of it is agricultural cultivation. For example, the Center has over a 101 varieties of fruit trees on its property. There are 2 organic gardens, there are over 2,000 bamboo plants with landscaping. There is a native Hawaiian forest, there are also noni trees, and they produce their own food they're very self-sufficient agriculturally. So, it is ideal and it's just this serene meticulous environment that really fits in well with agricultural district that doesn't change its character and there is also a need for this type of operation right now. Because there is a big demand for alternative health and wellness tourism it's a different type of tourists that we're seeing, a different type of demand and this type of operation is really ideal for these types of guests who are seeking a more peaceful remote environment as an alternative to the traditional resort type of venues there we normally put the tourist into. 6 EXHIBIT C Another point to be made is although the Center is doing its best to agriculturally cultivate the land, the land itself is not really well suited for large-scale intensive agriculture. The soil within the permit area is classified as "D" or "poor" for agricultural productivity and if you look at the lot size and shape it's a little over 10 acres and it does have this elongated triangular shape to it. It's really not well suited for large-scale agriculture. With that said, the Center is doing its best to use the property for agriculture. And again, allowing the operation of the Center as proposed will not be detrimental in any way to agriculture or the characteristics of this type of district because the Center itself is a model for a small-scale self-sufficient agriculture and it's coupled with a real peaceful meditation retreat use. The changed conditions even reinforce this more where we have very set quiet hours with decibel restrictions. We're going to make every effort not to stick out in this district. You know it is noted that the testimony brought out and the report mentions it too as the applicant did, we were never hiding the fact that the applicant unfortunately did not have all permits that were required for operations previously. With that said, if you look through the majority of written public testimony it is actually supportive of this Center and it does say that even though they didn't have the permits in hand while they were operating previously, they were a very good neighbor and an asset to the community. So, I did hear the public testimony this morning and it did raise some concerns, but I feel that these concerns maybe don't fully apprehend the nature of the Special Permit where it does allow for uses outside of agricultural uses in our districts. As long as we are not really changing the land and we are doing our best now to comply with the law. We are not aware that the Special Permit was needed for these operations and part of this Special Permit process is going to involve getting building permits or getting Change of Use Permits to allow for the use of existing buildings, going through the proper Plan Approval process with the Planning Department. These are just further steps that we're going go through to get everything up to Code and make sure that we're operating legitimately. So, at this point we're doing our best to follow the process and we're going to go through the appropriate departments and get the permits that we need to comply, and we ask that the Commission grant the Special Permit to allow for this continued operation allow us to continue this process. So, I thank you all for your time and do welcome any questions on the appropriate juncture. Thank you. REPLOGLE: Thank you Mr. Kim. Mr. Sussman,please. SUSSMAN: Just a few things. First allow me to thank you all for considering my application, it means a lot to me and to literally we had thousands of people go through KMEC. I had no idea when I first started it, it was my residence, my second home. And then slowly I started out as an Air B & B, it was a plowed over papaya fields. You couldn't even get into the property it was all rubble and slowly over the years you know we plowed the property, and then I planted a Mio Forest Mr. Kim didn't mentioned that there is over a 100 Mio trees and there is a 40-foot greenhouse organic greenhouse that we have that wasn't mentioned as well. So, slowly over the years you know we wanted a, I wanted to give something back to as gratitude to humanity 7 EXHIBIT C actually to my spiritual teacher and to my path and so I wanted to open it up to the public for their well-being. So, I decided to have a Meditation Center in honor of my spiritual teacher, and we did have an approved gazebo at that time which we turned into where we, where we sit for prayer. So, it's a very quiet place, I mean, we don't have any parties or there is no drumming. It's going to get better in the future when we get, my problem was I'm not a good manager. I had a lot of difficulty getting a management team over the years and now for the past three years we have a good team and it's getting better and we're getting systems in place and programs in place for meditation and ecological classes and so forth. Over the next year or so these things once we get the permit, we can go more into that aspect of being of service to our community. That's all I really have say, I think the letters this all came back these 13 or 14 recommendation letters from our neighbors can back came to me overnight just about when I, when I learned that there was an opposition from my neighbor. And I learned that those her opposition would be forthcoming, I contacted a few of my neighbors and one told the other and before you know it I had over 13 thank you' s from the neighbors and community at-large. If you happen to look at any of our reviews from Air BNB or any of the reviews, you'll see that most people are very very grateful and they all say the same thing, it's a very peaceful place. And also we're all organic and we're gluten free and we're vegetarians. So, we don't kill pigs, I'm never on my property we've never killed a pig. In the beginning we had a Hawaiian hunter come by once but, one experience of that was enough. So, now we try to catch them and take them off the property. Thank you. It's been a learning "—" REPLOGLE: Thank you Mr. Sussman. Are there questions? Yes, Mr. Au? AU: Thank you Mr. Chair um' thank you Mr. Sussman, thank you Mr. Kim. I do have a question for the applicant. Have any efforts been made since the last meeting to address concerns, and another follow up question with that would be has there been any efforts made since the last meeting that address the current revised conditions? For example, has any buildings been knocked down yet, or are you waiting for this hearing? I just want to know that. KIM: Thank you Commissioner Au, so the efforts made to address the concerns raised by the intervenors you know we did go through a process of mediation to talk about things and try to resolve things and that's why we have changed conditions before you today. Now as far as the applicant going forward with matters, we started some design and planning but reluctant to do too much until we go through the Special Permit process to understand whether or not it's going to be fruitful to invest capital and moving forward with the project. SUSSMAN: I have one addition to that Commissioner Au. We did, we were one foot into the neighbor's property approximately a foot. One corner of one building was in the property in physically and I employed a contractor and a designer, we remodeled the building entirely and we put a foundation under the one corner that we believe would definitely pass inspection if they were to allow a variance for that and then we would move it around to the other corners. For that it cost about three thousand dollars to do that remodeling of that one encroachment building so that has been done since our last meeting. The other buildings are on my property where and 8 EXHIBIT C will be moved according to what we've all agreed on in mediation. It's all, it's all in there you just can't move a building, you have to get a permit beforehand to move the building, so we've addressed all those concerns and I have every intent to follow through with what's in the agreement. Thank you. REPLOGLE: Mr. Clarkson? CLARKSON: Yes, this is a question for the applicants. How are you providing potable water for your guests at this time and for your proposed commercial kitchen? I mean is there a county waterline abutting this property or are you going to trucking in potable water? I'm just curious about how you are supplying water to your guests and to the kitchen. SUSSMAN: May I answer? KIM: Yes, I just wanted to point out that we don't have guests presently but with that I will let Mr. Sussman fill in the rest of the blanks from there. SUSSMAN: Okay, we have four 4,000 gallons tanks and we have the state-of-the-art filtration system and it's routinely maintained by home improvements. We never had an issue with our water. Having said that we bring in water routinely through Julian's Water, we use County water we have that trucked in on a regular basis when the need arises. So, we have both. Our filtration system goes down to .5 micros if I'm saying it right. I know it's way above the industry standard and so were doing that and I'm prepared to do whatever the County recommends in that regard from the Water and Planning Department. CLARKSON: Thank you. REPLOGLE: Anything further, any other further questions, statements? Yes, Mr. Raffipiy. RAFFIPIY: Thank you Mr. Chairman. I have a question for the applicant. Are all these, do you have building permits for these facilities? SUSSMAN: We have 3 or 4, we have 2 permits that I know of. My house was permitted, and we have 5 people there and then we have the meditation gazebo was permitted this was way back in 2006. And we have the shed and maybe 1 or 2 other permits pending that was mentioned. Nothing else has been permitted. I did hire Mr. Yeh back about 6 years ago to begin the process of legitimizing our operation and being new to the whole process of land owning, and surveys, and so forth. Our first survey was just the corners of the property. So, I really didn't know where the property lines are between the triangle corner and then we built cabins. I wanted to have you know sleeping cabin so, in order to get the, we were encroaching on my neighbor's property to the east after the survey, after the second survey I realized that, and I called her and mentioned that I'm encroaching so forth and so on. I employed Mr. Yeh; at that time this was several years back. RAFFIPIY: Okay Mr. Sussman, I have a follow-up question, I have a follow-up question. So, have you employed an engineer that will sign off on the unpermitted structures? 9 EXHIBIT C SUSSMAN: We are in the process of interviewing engineers at this time. I've employed Val Colter to begin the process and she has already provided or is working on 2 permits to redo the other ones. Regarding the engineer we're going to have to hire one, we have one from Teak Bali. We might use them and their engineers. So, I haven't hired anybody yet but, we are looking for one. If you could recommend any I'd be happy to do that. RAFFIPIY: Well because you will have to have building permit, you'll have to have electrical permit and a plumbing permit. So, I'm just wondering if you have everybody line up that will be approving all these for issuing and signing off on the application for the building permit, electrical permit, and plumbing permit. SUSSMAN: The answer is no; we don't have everybody lined up at the moment. The first order of business in my mind was to first know that I'm going to have a true retreat center. I still don't know if I'm going to have a retreat center because you've haven't vote. If you don't approve it then there's no point in getting anybody to approve anything because we're not going to a have a retreat center. It's going to be my home. If you do approve it, I'll go ahead and hire the appropriate people, find them, and hire them to get it approved. That was my thinking, maybe incorrectly so but, we do have I have to do I have to say we have a very professional general contractor type of person who's built many, many facilities on the mainland from shopping centers to office buildings and so forth that is helping me through this process. RAFFIPIY: All right, thank you. SUSSMAN: You're welcome. REPLOGLE: Is there anything else fellow, yes Mr. Lin? LIN: Thank you Chair Replogle. This is a question for the Planning Director, Mr. Kern. So, based on the photos I've seen in the background report this is from the applicant or from actual staff photos that went to inspect the property? KERN: I will have to defer to staff for that one. All the stuff from the road would be our staff property, Maija can you confirm or Eric? JACKSON: Yeah, I believe that these photos provided in the application were take by the applicant and then the photos that we presented of the road in that power point presentation today were taken by staff. LIN: So, I guess my question would be how are we verifying that all these violations and the concerns about setbacks are actually accurate? SUSSMAN: I could speak to that. REPLOGLE: Please Mr. Sussman. 10 EXHIBIT C SUSSMAN: Oh, we've had several surveys the most recent was 2017. Where the encroachment the actual line was delineated across our up-mountain side that borders Keri's property. And we realized at that point that we had that one-foot encroachment and the other two setback issues so, that was at that point just back 2017 or so by I forget the surveyor's name. So that's all in the records and we would be able to verify it because it's only 400 feet from one side to the other and we're going to move the buildings way beyond the 20-foot setback requirement. I don't know if that answers your question. LIN: Well, I guess my question is for the Planning Department right, how are we verifying when somebody does a complaint like this, how are we going out and verifying that there is a violation of Planning Code and setbacks? KERN: So, when a complaint would be filed then we would contact the property owner and we would go out there and we would assess it on certain areas that we wouldn't necessarily know, you know on a setback. Sometimes there's a visual observation or if there's needed then we would require that a licensed surveyor do that and actually plot that out on a plot plan showing where the location of those buildings would be. So, it kind of varies depending on the nature of the encroachment, nature of the complaint, nature of the situation but at the end of the day it would be verified by a survey. LIN: In this situation, the Planning Department did not take pictures of any violations other than what is provided by the applicant? KERN: Yeah, in this situation, in this case we're not looking at it necessarily from the violation standpoint, we are looking at it from an applicant,you know, saying this exists, this is here and we're just trying to correct it on a separate matter that would be a kind of a different, different element within the Department that handles those and sometimes there is a connection between those. But, in this case we're taking it at their word. LIN: Thank you for the clarification. REPLOGLE: Is there anything else? Well Commissioners, I'll entertain a motion for action? Mr. Clarkson? CLARKSON: I actually do have one more question for staff. REPLOGLE: Okay, please go ahead. CLARKSON: So, for the Director, this is quite an extensive list of activities that are going to have to be undertaken by the applicant as far as the revised conditions go, will the conditions all have to be met before the applicant is allowed to use the property as indicated in the permit or will the applicant be able to use the property during the time period in which the conditions are being met? In other words, for the will the public be able to enter the property and rent bungalows and whatever and have retreats? 11 EXHIBIT C KERN: So, the applicant would be able to use to the property based on what would be currently permitted in the zoning and then the actual proposed activity of the retreat would then be commenced after the various conditions were met. CLARKSON: Thank you. KERN: Yep. CLARKSON: Thank you. REPLOGLE: Anything further? Concerns? Okay, Commissioners I will entertain a motion for action? Is anybody home? LIN: Chair Replogle I move — REPLOGLE: Mr. Lin? LIN: I move that the application for Special Permit, Docket No. 20-000220, be approved with a condition and my condition to be recommended is that I believe the Planning Department and the County of Hawaii is providing Mr. Sussman an olive branch right, we're providing him the opportunity to fix the situation currently on this property and I believe that we shouldn't set the precedence that just because you're coming back to fix it, you'll be allowed to continue doing stuff without permits. So, for those future applications if you're in violation of an illegal structure or something such as another violation then this Special Permit be denied or reconsidered. I don't know if that's a reasonable condition, other Commissioners have any comments? REPLOGLE: So, is — HALL: We need a second first and then we can discuss. LIN: Yeah. REPLOGLE: A second? AU: Can we simplify that motion. LIN: Yes, sorry, I'll simplify it. My motion would be to approve with the condition that if a future violation either with an illegal structure or a non-permitted structure or a Planning violation that this Special Use permit be reconsidered. REPLOGLE: Second? AU: I second. REPLOGLE: Okay, it's been moved, excuse me, Planning Director Kern? Yes. 12 EXHIBIT C KERN: Thank you very much. Maybe this will help so I'd assume that the, excuse me, the motion would include the conditions and the revised conditions. And if you look at Condition 20, it should say "Should any of these conditions not be met or substantially complied with in timely fashion, the Planning Director may initiate procedures to revoke the permit", and one of those things it encompasses is basically being compliant with County and State laws. So, they have to be a good character and a good applicant moving forward otherwise that provision does exist in there and that exists and pretty much every Special Permit or Use Permit that we have. So, I think that covers your intent um'— LIN: Okay, yeah, I think that sufficiently covers what my intent for that condition was. So, if that's the case then I withdraw my original motion and I revise it to a motion to, I move that the application for Special Permit, Docket No. 20-000220, be approved based on the Planning Director's recommendations and conditions, which shall be adopted. AU: And I second that as well. REPLOGLE: It's been moved and seconded, all those in favor say aye. AU: Actually Mr. Chair, I have a— HALL: Guy's discussion. AU: Discussion please. REPLOGLE: Okay, discussion. AU: Can I go, or Joe I saw — REPLOGLE: You may go, you may go Mr. Au,please. AU: Thank you, so I'm kind of conflicted with this motion. I'm looking at this application and this motion in two angles. Number one, for Mr. Sussman as a landowner and number two for the business aspect of it of the rental facility and the violations. As a landowner if I'm in the setback if my property is in the setback, I got to knock that thing down immediately as a landowner. And the same goes for a business owner, so, I'm a little bit disappointed that Mr. Sussman and the vacation rental didn't take care of this back in 2017. Why wait now? Whether it's going to be your private land, whether it's going to be the applicant's private home or rental its knock the thing down. Fill up the cesspools, I'm just a little bit disappointed in that but I do support the motion for the reasons that we need to keep things up to par. But that's just my thoughts and discussion. REPLOGLE: Thank you Mr. Au. Anyone else? Yes, Mr. Clarkson? 13 EXHIBIT C CLARKSON: I'd just like to ask the Director or other members of the staff. What would happen to the property, or what actions would the Planning Department take if this motion were defeated, and it was not issued? I'm just curious what would happen then. KERN: I can't speak for the other departments; from the Planning Department side the applicant would be required to be compliant with the setbacks or request the variance or go through a proper channel to legitimize whether the building setbacks and anything having to do with Chapter 25 on our side. CLARKSON: Thank you. KERN: Just want to point uh Chair Replogle, Commissioner Raffipiy has his hand up, I'm not sure if that's— REPLOGLE: Thank you. Commissioner Raffipiy? RAFFIPIY: Thank you Mr. Chair. My pet peeve, in this situation is the is as such that Commissioner Au have already stated. However, I feel like we, yeah, I'm conflicted in this one as well because one we do not issue the permit. On the other hand, what options do we have we can either deny or I don't want to say legitimize it but to issue the permit so the business will be legitimate. But the process by which we are doing is after the fact is what got me on this one. It's after the fact. That's all, thank you. REPLOGLE: Thank you Mr. Raffipiy. Anything else? Yes, Mr. Lin. LIN: Yeah, I think Commissioner Raffipiy kind of ties into what my intent was it's just that I think the County is really offering Mr. Sussman in an opportunity an olive branch, a second chance for this property. But in the future for any other applicants, we may not consider giving you the opportunity to do things after the fact. I believe that we should be upholding with the Codes, the Planning codes currently in the County and we can't be looking a Special Use permits for everybody. That's just my comment. Thank you. REPLOGLE: Thank you. Mr. yes, Mr. Kern. KERN: Thank you. Just to add to the conversation, when an applicant, application comes in the Department whether they had an existing operation or nothing at all we look at it at a stand-alone situation for that land use and what the merits of that application are. So, I want to make it clear too that by supporting this application or giving it a favorable recommendation doesn't set a precedence that anybody coming in with a situation like that would get the same situation or the same recommendation for that matter. In all cases it's always better for the person to come you know prior to what they want to do, go through the proper channels, go to the proper permitting, that's obviously the way we'd like to see things happen, doesn't always happen and so when we do, we look at it really on a stand-alone level. Like would this make sense whether it was there or not, so I just want to put you know set that for the record that's really the way that we're looking at that. So, I think we're all in alignment with that thought process. Thank you. 14 EXHIBIT C REPLOGLE: Thank you. Anything more? I have a comment if I may. I tend to hear what Mr. Au and Mr. Lin have expressed as well as the Planning Director. But I will say to Mr. Sussman and Ms. Dickie Clark that I admire the class you both had in sitting down and working this out in an amicable way and I understand Ms. Clark's concerns just like Mr. Au and Mr. Lin yet, I also understand I believe your intent and the Director has seen that as well and I think it's a good thing that you are being given this opportunity. Because men can't live on bread alone and I think what you may be offering to that agricultural community will be very positive. So, that being said have we exhausted this, can we vote? I'll accept a motion to— HALL: Roll call vote. REPLOGLE: —roll call vote. Planning Department please do the roll call. COOK: Okay, so I will take the vote. Commissioner Lin? LIN: Aye. COOK: Commissioner Au? AU: Aye. COOK: Commissioner Aguinaldo? Oh, sorry his — REPLOGLE: He's not here. COOK: —I'm sorry, Commissioner Clarkson? CLARKSON; Aye. COOK: Commissioner Raffipiy? RAFFIPIY: Aye. COOK: And Chair Replogle? REPLOGLE: Aye. COOK: The motion carries with 5 ayes and zero noes. REPLOGLE: Thank you. You will be notified of the decision in writing Mr. Sussman and Mr. Kim and thank you for your honesty and forthrightness. The item ended at 11:08 a.m. 15 EXHIBIT C Respectfully submitted, Melissa Dacayanan-Salvador Secretary Windward Planning Commission 16 EXHIBIT C