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HomeMy WebLinkAbout2008-01-11 TPDKOHALA LLC PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JANUARY 11, 2008 A regularly advertised hearing on the application of Initiator PLANNING DIRECTOR (REZ 07- 000067/REZ 866)was called to order at 4:37 p.m. at the King Kamehameha's Kona Beach Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii, with Chairman Rodney Watanabe presiding. PRESENT: William Graham ABSENT & EXCUSED: C. Kimo Alameda Takashi Domingo Andrew Iwashita Shelly Ogata Rene’ Siracusa Alvin Rho Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Christopher Yuen, Planning Director Steven Lim, Attorney for Kohala LLC And 2 people from the public in attendance. INITIATOR: PLANNING DIRECTOR (REZ 07-000067/REZ 866) a. Continued hearing on the Planning Director’s initiation of a Change of Zone for 37.88 acres of land from a Single-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-5a) district. b. Continued hearing on the repeal of Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of st Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1, North Kohala, Hawaii, TMK: 5-9-1:8. WATANABE: We are on Agenda Items 4 and 5. Agenda Item 4 is a Planning Director initiated revocation of zoning, REZ 07-000067/REZ 866. Item No. 5 is a request for an extension of time by the applicant, Kohala LLC, REZ 866, for Condition C. This is Unfinished Business; we’ve discussed this on a number of occasions. And I know there’s been some discussion mostly about process procedure, we also apparently have some arguments about the five agenda items, three of which are not agendized today, being consolidated at our earlier meeting, I believe that was a July meeting. And I’m thinking that, if the applicant’s representative would be in agreement, that we should take Agenda Item 4 on its own, the reason EXHIBIT C 1 being if Agenda Item 4 passes, then everything else is moot. And also because the Director has th made it very clear that he will not extend beyond this January 11 date, in which case an unfavorable recommendation would be forwarded to the County Council. Now it’s also my understanding that really the reason for wanting to keep the items consolidated is the SMA th permits, which are not agendized but agendized for the March 20 meeting, go hand in hand with the – how should I put it – with the application for a time extension. And that application for a time extension would only arise if Agenda Item 4, the Planning Director initiated revocation, passes. So if you will consent to that, then I think we can narrow or focus our discussions. LIM: As we stated before -. I’m sorry. Steven Lim representing -. WATANABE: Let me swear you in. Do you swear or affirm to tell the truth now before the Planning Commission? LIM: I do. WATANABE: Thank you, Mr. Lim. And name and address, of course. LIM: Steven Lim representing Kohala LLC, which is the applicant, and Item No. 5 on the agenda today. My address is P. O. Box 121, Hilo, Hawaii, 96721. Your question was whether we would agree to the hearing of Item No. 4 only, which is the Planning Director’s initiated downzonings, and – excuse me -. WATANABE: I’m not suggesting that we not deliberate on Agenda Item 5; it is agendized, we will address that. I’m hoping that we can deliberate on Item 4, so that we will get a clear direction as to how the Planning Commissioners feel. Obviously, if it’s five or a greater number in favor of the Planning Director’s recommendation, then Agenda Item 5 is moot. On the other hand, if it’s five or greater against the Planning Director’s recommendation, then we can proceed to Agenda Item 5. And my thoughts here are that, you know, with Agenda Item 5 as I understand the Rules allow the applicant to agree to an extension of time, which then we could join in, if appropriate, with the SMA discussions. On the other hand, I do want to make a point that if indeed we proceed to 5 because Agenda Item 4 fails, then I would like to record in these discussions some direction, so that we can provide the Council with some direction, since we are sending it up separately, as to where we are headed with Agenda Item 5 and the subsequent SMA th discussions that are agendized for March 20. LIM: I think our legal position is that we believe that the five matters including the SMA matters were all consolidated and they still remain consolidated. We have no objections to you taking up for discussion purposes Item 4 and then Item 5 so long as it’s understood that we are not waiving any of our claims that all these matters are consolidated. WATANABE: Okay. Mr. Domingo? DOMINGO: Mr. Chairman, if I may. Even before we go any further, you know, we have had discussions on this issue for a number of months, and as each time goes by, as each EXHIBIT C 2 time we meet to consider these items before us, personally what I’m feeling and sensing is, you know, there is that contentious feeling among the Department and the applicant. And you know, I think to a certain degree it may have impacted on the members of the Planning Commission. Through some of the deliberations I’ve had a sense of feeling of some Commissioners by their expression having a desire to have the parties get together and talk about it, you know, discuss the issue. And as the last resort I don’t think any one of us would just like to go through the whole items and then abruptly or whatever may happen, either deny the Planning Director’s initiatives or approve it. You know, any way you look at it, there will be some degree of I think doubt in one or the other’s feelings or perhaps even to a degree of the integrity of an individual. I just, you know, as a last ditch effort, you know, in this public hearing want to know if the Planning Director and the applicant can meet and discuss the issues and hopefully come to some kind of amicable conclusion, which both of the parties can subscribe to. WATANABE: Mr. Domingo, we’ve been asking for that for quite a while now and -. DOMINGO: Well, you know -. WATANABE: It doesn’t appear as though – please let me continue – doesn’t appear as though that’s going to be possible. With that in mind, and I will ask again both parties whether that’s possible or not, that’s why I’m not ruling that out. But again not knowing where Item 4 is headed or how the other Planning Commissioners are planning to vote on Item 4, I don’t want to jump to the conclusion that this Commission will then play as mediator in Agenda Item 5. And so I’d like to get that decided. However, that said, you know, Mr. Director, we’ve asked you in the past whether you’re willing to concede on this to some degree, and I don’t believe your position has changed. But, for the record, would you care to make a statement? YUEN: Well, I’m very willing to meet with the applicant and discuss this further. But I would like to proceed with the request to rezone the property to RA-5a; and at the end of this meeting, have that go to the Council with either a favorable or unfavorable recommendation from the Planning Commission. I understand that it -, the Planning Commission, you’re very often faced with difficult choices; and I’m sorry that in this case this is a difficult choice that I initiated and presented to the Planning Commission. I have worked with people on many, many issues over a seven-year period, and have probably come to compromises that are then embodies in things that come to the Commission where there is no dispute between the applicant and the Planning Commission. I’ve done that probably a hundred times, if I’ve done it once. I haven’t been able to do that in this case. I don’t know if a position like that is possible. There is time to, certainly before this goes finally through the County Council to, for everybody to modify their positions or to come to different kinds of visions of what would happen. But I have to say that as far as today I’d like to see the Commission discuss the merits of the proposal on the return to the 5-acre zoning and attempt, you know, to take vote on it, and make a recommendation to the Council one way or the other on that. There is also Mr. Lim’s request for a time extension, which the Commission should also vote on. He can extend the time on that although – and that’s entirely up to him, of course – although I would imagine that he would want that to go up to the County Council at the same time as the 5-acre zoning. I certainly have no objection to doing that. I believe he can under the timeframes make sure that that happens. EXHIBIT C 3 WATANABE: Did that answer your question, Mr. Domingo? DOMINGO: Well, yeah, it seems like I have no recourse -. WATANABE: Well, Mr. Lim -. DOMINGO: And let the games begin. LIM: I guess on the applicant’s side, we’ve always been willing to negotiate for a lower density; you know, we’ve reserved our rights to the RS-15 zoning that we’ve had for years. And we would be willing to negotiate but not at the expense of having the change of zone moved up to the County Council. Once it does that, it puts us in jeopardy.I think that, and even the Director recognizes that nothing is happening on the property.So I don’t see what the rush on pushing it forward is. So we would be willing to negotiate and it’s, like I said, I would suggest that the best way to negotiate is when there is no pressure on either party, and that would be at this stage without moving it up. WATANABE: I have some suggestions, but again because of the Sunshine Law we are unable to discuss amongst ourselves towards any deliberation and so I have no idea what this body is going to vote on Agenda Item No. 4. And with that, now that the preliminaries have been, you know, put forth, maybe I can call on staff to do the presentation. And then with your consent, Mr. Lim, since we have only two testifiers from the public, possibly we could have the testifiers testify first, and then proceed into our deliberations. LIM: I have no objections. WATANABE: Thank you. DARROW: Thank you, Mr. Chairman. Just a brief presentation, if I can direct your attention to the location map. The area of this application is within North Kohala. More specifically, we are looking at Akoni Pule Highway running in a north-south direction; it’s identified in a red line. We have Kohala Ranch Estates located directly across from the project location, which is identified with a black dot.The color on the map indicates the zoning. The light green zoning represents Agricultural 1-acre; the dark green represents Agricultural 20- acres, and we have, for the project location, we have RS-15. This is located directly in front of Waiakailio Bay. This is a continued hearing from our December 12, 2007, hearing; the Planning Commission voted to continue the three change of zone applications, rezoning applications, till thth this date, January 11, and that the two SMA applications be continued until March 20. These matters that we are looking at today are the Planning Director initiated change of zone from RS to RA-5 and the continued hearing on the repeal of Ordinance 97-102. Additionally, we’re addressing the application, amendment application for Kohala LLC which is they’re requesting an amendment to Condition C of Ordinance 97-102 which rezoned 37.88 acres from Ag 5-acre to RS-15. EXHIBIT C 4 We have just several aerial photos of the area.This again is the Waiakailio Bay and we have the project location. We have the entrance to Kohala Ranch located directly across the street. What I’ll do is I’ll just keep the project, the location map up on the board for reference. Just for the Commission’s attention we have had several pieces of correspondence that have come to the Commission’s attention since our last hearing. One is the additional information to the background and recommendation report from the Planning Director. We’ve received correspondence from the applicant. This is called the Memorandum in Opposition to the Planning Director initiated change of zone, repeal of Ordinance 97-102 and revocation of SMA Permit No. 379, and in support of applicant’s requested amendment to Condition C of Ordinance 97-102 and Condition 4 of SMA Permit 379. These are time stamped January 9, 2008. And lastly we have, or additionally we have a letter dated January 10, 2008 to the Planning Commission Chairman from the Planning Director; and lastly we received correspondence from Preserving North Kohala. That was a letter, I’m not sure exactly who it’s from. I think it’s from several members of the Kohala residents, North Kohala residents. All this information should have been passed out to the Commission. Thank you. WATANABE: Thank you. Do we have any questions of staff, Commissioners? If not, then may I call up Gail, Mike Isaacs and Gail Byrne. May I swear you in. Well, actually I swore you in earlier so you’re still under oath. But Mr. Isaacs, I, do you swear or affirm to tell the truth now before the Planning Commission? ISACCS: Yes, I do. WATANABE: Maybe we can start with you, Mr. Isaacs. Would you state your full name and address for the record, and you may begin with your testimony. ISAACS: Michael Isaacs, Camp 17, Kokoiki, North Kohala. WATANABE: Would you use the mike, please. We’re recording this and it’s difficult for the recording secretary to transcribe. ISAACS: Mike Isaacs, Camp 17, Kokoiki, North Kohala. WATANABE: You may begin. ISAACS: Anyway, excuse me. I’m here representing this stack of paper which actually are signatures of over, well, it’s three separate petitions. They represent 6, 7, almost 8,000 signatures. And what it’s about is the preservation of the North Kohala coast, and also the kupunas who have been working, gosh, for over 30 plus years to preserve the North Kohala Coastline. Most of them have, that I’d worked with, have passed on. So I continue to speak for them, especially when it comes to the coastline. Basically I’m here, and this material here, is to back up the Planning Director’s initiatives. We do not want to see the coastline -- all of us, the ones that are still present and not -- developed.We actually want something even more, which is Conservation and Open. And yet the Planning Director’s initiative is better than nothing at all. EXHIBIT C 5 The problem with that area, that particular area, is that development above it has impacted the ocean in a very negative way. And if you decide to let this development go with that amount of homes, the density would definitely destroy that particular area and further. I’ve heard that there has been mentioning, someone mentioned taking, taking pertaining to this private individual or developer. Well, let me read something to you; and this is based on the public trust doctrine in my, you know, my own opinion. When the public loses its source of food, cultural identify, spiritual renewal and recreation, this is a taking. It is a taking when the public rights by way of actual use, custom, or prescription are compromised by development. And this development will compromise the public. And I think it’s overdue that the Commission start looking at it from a different point of view instead of just the private single entity and look at how it affects long- term, short-term, the public. Mr. Yuen’s request to downzone it is correct. To put that amount of homes there is not. And I ask the Commission to support Mr. Yuen in his initiative. Mahalo. WATANABE: Thank you, Mr. Isaacs. Do we have any questions for Mr. Isaacs, Fellow Commissioners? Seeing none, thank you. Gail? BYRNE: Yeah, thanks. I know it has been a long day. I appreciate everyone’s time. The testimony I’m submitting and that we submitted in August and December meetings is on behalf of six Kohala organizations that present about 400 families. And as stated previously we urge the Planning Commission to support the Planning Director’s initiatives. We’re also asking for more, similar to what Mike just alluded to. We’re asking for a minimum of a rezoning to Ag-20a, which is completely aligned with that stack of papers you saw there, State Plans, Joint Resolutions by the State Legislature, past Community Development Plans. It’s absolutely aligned with the work that’s coming out of the current Community Development Plan. And most significantly this applicant does not meet the conditions for time extension. You know, the circumstances and the context under which this initial application was granted have changed; and the testimony outlines just a couple of examples. You know, there is very compelling documentation that the development construction activities up slope of this area is already significantly degraded the water quality, it has killed off all the coral right in front of this site. And there’s a couple of, three photos, I think, attached with the testimony that has been submitted today. All the invertebrates in that area have been killed. The sediment was measured to be at least 15 inches or more just 15 feet off shore, up to 60 feet off shore. There’s a significant impact there. You have to take that into consideration. Additional development of any kind will contribute to this problem. There’s not a BMP on the planet that’s going to stop this development from contributing to that problem. That’s just a fact. I’m a civil engineer, worked for 8 years on watershed issues. I guarantee you there’s going to be more contribution from that project to that reef. In the scale of damage to this area that we’re talking about makai, directly makai of this project, its magnitude is greater than what precipitated the EPA investigation and fines against Hokulia. It’s significant, the damage that’s already there. You know, there’s even a greater body of evidence and support that the proposed project is not at all aligned with what the community has consistently expressed with regard to preserving the EXHIBIT C 6 coastline. The input received in the last two years during the community readiness program for North Kohala development planning process, and this was the most well-attended community readiness program in all the years that we were receiving such support, there was tremendous out-turn by the public. Anyway, the input from the community at that time and the draft recommendations coming out of the focus groups are clearly not aligned with this project. In fact, there’s a recommendation calling for the State lands to be downzoned to Conservation. And right now there are two bills being introduced at the Legislature to do exactly that for the property immediately north of here. And the social environmental conditions under which the ordinance and permit were originally passed and issued have significantly changed and do not support any extensions. What the conditions support at a minimum is what Chris is asking for. I think there’s a real sound case to ask for more. I hope you guys will consider that and use your authority to do so. You know, the annual reports were not filed, the required progress was not made. There’s no takings issue here. I know there’s a lot of concern and talk about that at the last Commission meeting. For whatever reasons, the required conditions were not met. The applicant didn’t comply with the required procedures. There’s no takings here. There has been no subdivision granted. There’s no takings here. On Oahu I believe there is a resort zoning downgraded all the th way to Preservation, made it all the way to the 9 Circuit Court, there’s no takings. We need to quit being afraid of doing the right thing, especially when folks haven’t complied with the procedure. Let’s not be concerned. But there is certainly cause for concern about lawsuits that will force the County to take action to protect natural resources from the cumulative effects of development as allowed under the Clean Water Act, the Coastal Zone Management Act, and with regard to upholding the public trust doctrine as allowed for in our Hawaii State Constitution. No one has done it yet but the time is getting nearer if we don’t start doing some better planning. You know, one of the reasons we’re here today is because the applicant did not follow rules and that time to exercise the conditional entitlements expired. You know, but the real reason we are here is because over the decades for whatever reason the County has not listened to the community in terms of what their vision is and what they wanted for this coast. I think we alluded to it in our document and other testimony. This coast has the most numerous and intact archaeological and cultural sites in the State. It’s precious. It’s the last uninterrupted viewplane for the longest stretch in the state. There are many, many reasons to be looking at preserving all the parcels along this coast. You know, please hear us today. Please support the Planning Director’s recommendation to repeal Ordinance 97-102 and please use your authority to rezone it to a more, to zoning that is more aligned with what the community has asked for for decades.And I really, I’m very much a win-win optimistic type person. I love dialogue, I love discussion. And I appreciate the efforts by the Commissioners to encourage more discussion between the Planning Department and applicant. And yet at the same time, you know, what about more dialogue between the Planning Department and what the community has wanted or 30 years? EXHIBIT C 7 The last thing I wanted to say, with all that being said, Mr. Lim and I had a conversation in December briefly about a possible Conservation sale and then this morning; and I’m going to be sending him a letter. He has asked me, encouraged me to do so. So there is that possibility out there. And certainly that’s something I know that the organization I represent would support. So that’s it. Thank you for your consideration and I encourage you to act proactively. WATANABE: Do we have any questions for the testifier? Thank you, well, you may be seated then. I’ll call up Mr. Lim. Mr. Lim, you’ve already been sworn in. You’ve heard the testimony. It’s repetitive in that we heard it at the last meeting. And I’m hoping, you know, at the last meeting we spent much of our time about procedure, process, rules. And I’m hoping this time we’ll be able to move forward and make a decision one way or the other on this issue and then hopefully in the end we’ll drive this to a conclusion. So, but what, I know you worked quite diligently preparing for this so now is your opportunity to present your case. LIM: And due to the late hour I’ll try to be brief. As I spoke earlier the Commission’s vote in July of last year to unanimously approve the consolidation of the five matters before you was, we believe, the tool to bring the two matters together; and Kohala LLC relied on that consolidation in processing and hearing this matter. We believe that because of that consolidation that the applicant Kohala LLC now has the ability to extend time limits for both our change of zone time extensions, the SMA time extensions and also the Planning Director initiated actions that you’re reviewing today. I think one of the things that we would recommend to the Commission is no matter which way you go I know you have strong opinions on this matter. There’s a potential that the 60 days, if we’re wrong the 60 days has run and the only thing you can do is send up a negative th recommendation. And based upon what the Director says in the December 12 transcript at page 13, he said that if the change of zone is sent to the Council with a negative recommendation he stated that only the Planning Director’s recommendation will be sent up there. And if that occurs, if in the end the Commission defaults to a negative recommendation because you find that the 60 days have passed, I urge that you also send up what you think at the same time. We think that the Planning Director took 10 years to enforce the SMA conditions, and that’s why we wanted the extra time to be able to prepare our arguments for the change of zone and the SMA th together at the March 20 hearing. We still believe that that’s the best way to go. Nothing is happening on the property. The Planning Director’s position is not being compromised. The only one that is being compromised at this time is the applicant because basically once this action started back in July of last year we had to put all stops on whatever actions we were pursing on development of the property. You know, so our point is why not wait another couple of months to let us argue this thing, let the Commission decide these all at one time. And for purposes of the record, Kohala LLC is going to reserve all of its rights with respect to the five consolidated matters and any of the issues that relate to the proper processing of the Planning Director’s downzoning and revocation bills that are listed on Items 4 of the , 4.a. and 4.b. of today’s agenda. As I stated I think that the Commission should make its thoughts known if it does go up to the County Council after this meeting. We believe that that is the fair and proper way to go on this one. I’m going to, I guess, defer a little bit with my presentation on the EXHIBIT C 8 merits until after you’ve discussed the Planning Director’s Agenda Items 4.a. and 4.b., if that’s okay. WATANABE: Okay. Do we have any questions for the applicant’s representative? Hearing none, I do have couple of questions. I was looking through the notes, and you bought the property back in July, I believe it was, of 1999, or your client did anyway, yeah? And in looking at some of the correspondence apparently Gentry satisfied the 10 percent affordable housing requirement. So that is something that has been invested since the property was rezoned to RS-15. And it appears you have also successfully negotiated an easement under the road. Because I think it was Condition I, is that where all utilities should be underground? LIM: Well, that’s part of the reliance factor by the applicant. I was going to get into that more later, but yes. Part of the activities that occurred, including the satisfaction of the affordable housing requirement, were done prior to the purchase of the property by my client. But the point is I think that regardless of who did it my client essentially buys the property with existing entitlements. So that’s reflected in the purchase price. WATANABE: Yeah, but my question really is, now I noted two things -. And at today’s prices a housing credit runs somewhere in the neighborhood of $70,000 to $75,000 per credit. Ten percent in this case was five units, which would convert at that rate to about $375,000 roughly. But I’m wondering if I covered everything. Did I miss anything? LIM: In addition to the governmental required items to develop the property, the property also comes with a water agreement that’s with the Kohala Ranch Water Company. We essentially have a commitment for 76,000 gallons per day. And no matter what is developed on the property, whether it’s one house or 50 homes as the permits allow, the applicant is going to have to pay in excess of a half a million dollars for that water, no matter what. So that’s why I say -. WATANABE: Okay. That wasn’t clear to me. So, again, that was how much per year? LIM: It’s a one-time payment for reimbursement for the waterline that comes from the Kohala Ranch mauka down across the Kohala LLC property and over to the, I think it was called the Kohala Waterfront property. WATANABE: Okay, that commitment is for how much? LIM: Seventy-six thousand gallons per day. And the payment is over half a million dollars. I don’t have the exact number. I think it’s in the neighborhood of $640,000, but I’m guessing. WATANABE: Roughly $600,000 then? LIM: That’s correct. EXHIBIT C 9 WATANABE: Okay. And like you said, whether you build one house, or 50, or whatever -? LIM: That’s correct. WATANABE: That’s -, okay. Thank you. Mr. Graham. GRAHAM: Mr. Lim, just since Commissioner Watanabe brought it up, can you just be clear to us specifically what has been done as far as the housing, the affordable housing requirement? Lim: The housing that was provided was in Kona in what I believe was called the Kalawa View Estates Project. So the developer at that time in 1970, excuse me, in 1998 purchased affordable housing credits from that project, purchased five of them; and that resulted in the February 25, 1998 agreement between the developer of this project and the Office of Housing and Community Development that the affordable housing requirements for the rezoning were satisfied. GRAHAM: And do you have a purchase price on what those five were or anything? LIM: No, I don’t have that information. That was not paid by my client. That was paid by the prior developer but it was built into the sale price for my client. GRAHAM: Thank you. WATANABE: In all fairness to the Director, I think we should offer you an opportunity to rebut before, you know -. You should be able to state your case, yeah? YUEN: Certainly. Well, on the merits of why we’re doing this, that’s the purpose of the supplemental along with the original background and recommendation; and it’s to create a project with a lower density of development to be able to keep more of an open space view along the shore and also for environmental factors as talked about earlier. Just one minute on procedure because I think that’s, I don’t want to spend a heck of a lot of time on it. What I would think is the correct procedure is for the Commission to take a vote on the proposed, Director’s proposed rezoning, and to take a vote on the time extension, very simple. Question of consolidation, the purpose of, as I believe, the purpose of the consolidation was to avoid having to say that this testimony is for the rezoning and this other testimony is for the SMA Permit. It was never possible to actually consolidate these matters in the sense that the decision would be made at the same time. The decision on the rezoning is made by the County Council. The decision on the SMA Permit is made by the Planning Commission. The Planning Commission’s decision on the SMA Permit cannot take effect unless and until the County Council makes a decision on the zoning. So even if the Planning Commission, for example, were inclined to extend the time to allow, on the SMA Permit, to allow the 50 units to be EXHIBIT C 10 developed, the County Council would still have to pass the time extension on the zoning for that to take effect. That cannot happen in one proceeding in front of the Planning Commission. WATANABE: Thank you. WOODWARD: Mr. Chairman? WATANABE: Yes. WOODWARD: If I could ask Mr. Yuen a question. I realize that originally this was zoned A-5 and then it was rezoned RS-15. But if you look at the map there, everything around it is A-1. So why are we proposing to make this A-5? YUEN: No, those light colors are A-5. WOODWARD: Oh, they are? YUEN: Those light colors are A-5a. WOODWARD: Okay. YUEN: Yes. And this would be RA-5a, which is very similar. It’s still a 5 acre minimum. But because it’s in a State Land Use Urban rather than the Ag district, it has slightly fewer uses than the A-5 but basically the same as far as the lot size density. WATANABE: Just for the record, you did indicate in your writing to us that approximately 2/3 of the roughly 38 acres is under Low Density Urban, right, which would allow RS-15 or possibly even higher according to -? YUEN: Yes, possibly it’s -. Under the LUPAG map, roughly the southern 2/3, if you would take the strict application of the LUPAG map roughly 2/3 of the property, the southern 2/3 is Low Density Urban and potentially allows a zoning of a Residential zoning of, the standards in the General Plan say up to six units per acre. The northern 1/3 or so is Extensive Agriculture in the LUPAG Map. In the State Land Use District this property is Urban. WATANABE: Thank you. Mr. Lim, do you have anything to add? LIM: Just to I guess clarify too, to Commissioner Woodward’s question, the other surrounding zonings I guess would be roughly south of the subject property. There’s a Multi-Family Residential RM-4 project. It’s called, I think, the Kohala Waterfront. That, however, was developed for Single Family lots I believe half an acre in size. Then immediately mauka of that is the area that’s zoned Agriculture 1-acre. WOODWARD: I thought that’s what I heard Jeff Darrow say, but Director Yuen says that’s all A-5a. EXHIBIT C 11 LIM: Well, it’s A-5 just immediately mauka of the project. WOODWARD: Okay, okay. LIM: Mauka of that is Ag-3. WOODWARD: All right. WATANABE: Okay. Would that roughly conclude your presentation or do you have anything else to add, Mr. Lim? LIM: Well, I think, you know I should go ahead and run quickly through my substantive presentation. Because I think once I finish doing that then you’d be acting on it -. WATANABE: Okay, okay. Certainly. LIM: Basically we’re at the point now where we’re seeing that the Planning Director’s involuntary downzoning and the revocation to the existing zoning ordinance for RS- 15 is in violation of the General Plan. You know, essentially I think that once, our position is that once the County Council and the Planning Commission issued their RS-15 zoning and their SMA Permit No. 379, that was a recognition and admission by the County that the proposed 50- lot project complied with the General Plan and zoning and SMA criteria. And for the Planning Director to now come in and involuntarily downzone the property from RS-15 to RA 5-acre lots, we believe, requires a General Plan Amendment. We believe that, because the project as presently zoned either complies with the General Plan or it doesn’t. And if he believes that the project as presently zoned does not comply with the General Plan, then he should be required to file a General Plan Amendment to initiate his downzonings. The property as you can see is in, you don’t quite have the State Land Use diagram up there but basically that whole area is State Land Use Urban and it goes all the way through to the Kohala Woodvale project on the brown on the south side. As I stated before the other properties in the area are zoned Multi-Family 4 and Ag-1, so why should we downzone this property from RS-15 all the way down to Residential – Agricultural 5 acres? The General Plan ordinance has not changed. There has been no, and that’s one of our strong points, I believe, is that the State and County regulatory entitlements, the laws, the General Plan in other words, has consistently provided that the property be used for Low Density Urban uses; and that was what was found by the Planning Commission and the County Council when they did those rezonings in the initial go-around. Even the 2005 General Plan Amendment procedure which was processed by Mr. Yuen recognized that the property in question should be used for Low Density Urban uses. You’ve heard the testimony by the public witnesses, this hearing and the last, that basically says that, you know, for years the North Kohala community has wanted to utilize, to keep the oceanfront areas makai of Akoni Pule Highway in Conservation or at least a lesser intensive use. And I think that in 2005 we see that the Planning Director and the County Council found that at least one of the parcels was worthy of this designation. And just immediately north of that parcel in the 2005 General Plan they took that area from Extensive Agricultural down to Conservation. That was in the General Plan processing, Item E-6. We believe that was a reflection of the EXHIBIT C 12 Planning Commission’s and the Planning Director’s, and the County Council’s feeling that they should recognize some of these issues that are brought up by the community. They did not touch this property. And for the Planning Director now without any changes in the General Plan or any other regulatory documents to come before you to downzone an existing zoned property we think is improper. We think that once, you know, I think it would be a different situation if there was no rezoning or SMA Permit granted for this property, but that did happen; and we believe that it creates a situation in which Kohala LLC has its property rights to protect. We believe that the downzoning would affect a violation of our civil rights and our constitutional protections to due process and equal protection. We also believe that under the regulatory takings issues that the SMA Permit No. 379 was the last discretionary approval that vests Kohala LLC’s rights to develop the property pursuant to that SMA Permit. We believe that although conditions of approval, such as the time extensions for any final subdivision approval, were not met, those are, those have been deemed by the Hawaii Supreme Court as not being critical to the legality of the SMA Permit. We think that the Commission should both extend the discussion on this matter to the March hearing to allow us to present it all at one time, but that at the worst case scenario that the Commission, if they’re inclined to vote this out today under any scenario, that they do make it clear on the record what their position was so that the County Council can have the full benefit of your thoughts. I think what, you know, my final point is that once the County Council and the Planning Commission acted on the rezoning and SMA in the initial go-around on the entitlements for this project and they made a substantive determination on the General Plan and all the regulatory entitlements, that the County cannot now reverse the field and change their findings on those things. The issue, and I think you kind of expressed it sometimes in your comments, is that the public has to rely on the government to protect private property rights; and that is critical to the Constitutional rights of due process and equal protection. And when an applicant comes in they deserve to be treated fairly; and as we’ve indicated in our last memo to you, this is the only involuntary downzoning that has been processed at least in the last eight years. I’ve been working with the Planning Commission and the County Council on rezonings for 20 years now and I haven’t seen any involuntary downzonings occur in that period of time in my experience. We think it’s a bad idea, we think it’s unfair. And so we would ask that the Commission support our request to retain the zoning for this property. Thank you. WATANABE: Mr. Woodward. WOODWARD: I don’t really have a question for Mr. Lim, but I would like some clarification because I’m still confused about the surrounding zonings. Maybe, Jeff, if you could show me what’s what up there. DARROW: I’m sorry, I made a mistake earlier. The light green zoning is Ag-5, Agricultural-5. EXHIBIT C 13 WOODWARD: Okay. DARROW: The darker green is Agricultural-20. This lighter green is Agricultural-1 acre. So when you’re looking at this area to the south and this area to the north, it’s Agricultural- 5 acres. WOODWARD: Okay. How about the blue, what is the light blue? DARROW: Blue is Agricultural-3 acres. WOODWARD: Okay, so it’s surrounded by all sorts of things. DARROW: Yeah. And then as the applicant’s representative mentioned, you have an area zoned RM-4, Multiple Family Residential 4,000 square feet. WOODWARD: Okay. And what’s that darker area up there near the -? DARROW: Right here, right here? WOODWARD: No, near the light blue. Yeah, that’s 20 I understand. And is that 20 also to the right of that light blue area? DARROW: Correct, right over here. These -. WOODWARD: Down, straight down from there, this, that? DARROW: Yes. WOODWARD: That’s a 20-acre also? DARROW: Correct. WOODWARD: Okay, all right. Great, thank you. WATANABE: We, yes, Mr. Graham. GRAHAM: I’d just like to confirm with the Planning Director, one of the Mr. Lim’s points is about the General Plan a lot. And so we do know that the RS-15 zoning, which this property has, is consistent with General Plan Urban designation. Since Mr. Yuen is recommending a change to FA-5, is FA-5 also permissible and consistent with General Plan Urban? YUEN: Yes, it is. And let me, without, and I did discuss this in some of my written material. I’m not going to repeat it, but let me just mention one more thing. Last year, if you see the area that’s right next to this property along the shore on the south side or the Kawaihae side, that area is also zoned A-5a and came in for an SMA Permit with 5-acre lots last EXHIBIT C 14 year; and the Commission made a finding that that was consistent with the General Plan and granted an SMA Permit. So having a development of 5-acre lots in an area which has all the same General Plan designations, actually that area is entirely Low Density Urban in the General Plan, has the same State Land Use designation, that is as consistent with the General Plan as well. WATANABE: Any follow-up, Mr. Graham. No? GRAHAM: No. WATANABE: Okay, I, for clarification purposes, the subdivision you’re referring to or the SMA Permit you’re referring to was the Belt Collins application where we did so many height limitations, etc., on that? YUEN: I’m trying to remember what the -. I know that Greg Mooers worked on it. I’m not sure if Belt Collins was -. And let me just say one more thing, that when I said consistency with the General Plan as, the RS-15 is consistent with a LUPAG Map Low Density Urban. You also have other aspects of the General Plan goals and policies that the development may not be consistent with. But as speaking of the LUPAG, yes, it is consistent with Low Density Urban. But, anyway, I can’t remember if, I think Belt Collins was involved. I remember Greg Mooers was also involved as the applicant, but that did come to the Commission last year and was granted an SMA Permit for 5-acre lots. WATANABE: Thank you. Do we have any further questions for either the applicant’s representative or the Director? Do you have anything else to add, Mr. Yuen? YUEN: No. I’d be happy to answer any more questions, but nothing else I need to say. WATANABE: Okay. Do we need to enter into, well, Mr. Lim, if that concludes your presentation I think we’ll attempt to go into deliberation on Agenda Item 4. So you may be seated in this case. Yes, sir? WOODWARD: Do we need to close the hearing? WATANABE: I guess technically we do. You know, I would entertain a motion to that effect. WOODWARD: So move. RHO: Second. WATANABE: And second. All in favor of closing the hearing say aye? COMMISSIONERS: Aye. EXHIBIT C 15 WATANABE: Okay, then the hearing is officially closed. Okay, we have options now. We can discuss to some degree a little more about the particulars of Agenda Item 4. Again, let’s focus on Agenda Item 4 first. Once we decide on that -. And I’m truly hoping that we will not punt. One way or another I’m hoping that we will make a decision. Yes, Mr. Woodward. WOODWARD: Mr. Chairman, I’m really not comfortable. I have not been comfortable with this, the Director’s recommendation, from the beginning for a number of reasons that I have articulated in the past; and I’m not going to go over all of them again. But it comes down to, I think, a question of fairness on how, what interaction there has been between the Planning Department and the applicant. And the fact that downzoning properties just -. You know, we’re charged with generally reviewing people that are trying to put in new developments; and we really stick to our guns and I think we’re very hardnosed about it; and they really have to show us that they’re going to do a good job. But to downzone, that’s an entirely different matter. And if Mr. Lim is correct this is the first time this is happening in eight years, I’m a little concerned about that. And so I do have those concerns. . WATANABE: Thank you. Any further discussion? Yes, Mr. Graham. GRAHAM: Just speaking to that very understandable concern that Commissioner Woodward brought up, I do remember when I was brand new on the Planning Commission which was in 2003 and in my first meeting over in Hilo was April, we had a very similar situation where an applicant was asking to extend the time conditions which had expired a number of years before. And being new to the process I remember asking at that time, well, if the applicant didn’t complete his requirements, what is the current zoning of the property, is it the zoning that it used to be or is it the zoning that was given to him contingent on him completing the requirements? And Mr. Yuen went to explain to me at the time, he said it stays with the new zoning even though he didn’t complete the requirements. However, he says, you know, I have the opportunity as Planning Director to return it to its original zoning or suggest a more appropriate zoning, but if I’m going to do this, I have to initiate a new bill, and it has to go before the Commission and the Council. And then he kind of challenged me, well, do you have a more appropriate zoning you think I should apply for, you know; and I said no, you know, I was just trying to understand the law of the land. So all I’m saying by that is even though he had not initiated a rezoning against the will of the applicant or something he did certainly make it public in my first hearing that that option was there for him to take and that if I had a suggestion he’d do it, would I please go ahead and make it. So it’s not totally new terrain in that respect. WATANABE: Thank you. Any further comments? Well, I’m not trying to railroad this or anything. I too am having great difficultly with the taking. I think I’ve expressed my feelings at prior meetings. At the same time, like Commissioner Domingo, I had hoped that this could be worked out. Obviously it’s not going to be worked out unless we somehow step in. But we can’t do that until we decide on this and, or at least Agenda Item 4. And, you know, that’s why I brought up some of these other issues with regard to satisfying the fair housing requirement, you know, obtaining the easements for the underground utilities, which was an attempt to satisfy one of the conditions within the change of zone. And also now I guess we have an additional commitment that was made by the applicant to the Kohala Water Company which will cost them in the neighborhood of $600,000, irrespective of how many homes they put up. That said, while EXHIBIT C 16 I’d like to see the downzoning, the density decreased -. It’s my understanding that it’s, the Commission does not have the power to initiate a downzoning request to say one acre or something like that. I will point out to you that Condition C does indicate that the limitations on the units were 50 and potentially that could be worked out to a lower number if the Commission as a body so desires. So, anyway, personally I’m not in favor of revoking. But that’s just my feelings. Anyone else have any comments? Mr. Graham? GRAHAM: I want to take kind of an unusual turn here. This may be my last Planning Commission meeting. I’ve been on the Planning Commission all this time and I know we have some members like you folks who are expressing reservations who are, you know, more supportive of the developments in general than I have been and all. And it seems like one of the issues, and I think the public testifier kind of said that today, like maybe the public interest in general, you know, ask for open space and ask for lower density zoning, however, there is a negative impact to the owner of this property. So that it’s sort of a, I mean, it seems to me sort of a balancing that needs to be done, and that Mr. Yuen in this case and in my own personal feeling in this case is that because the opportunity is here in the law for the Planning Director to act in favor of what he believes to be the community’s interest and, you know, I’m inclined to also act on my vote on what’s favorable to the community’s interest yet you all are not. Can you elucidate a little more your feeling? Is it like you think that the private landowner’s interest is more important than the community’s interest, or do you think maybe the community doesn’t really have that interest, or, you know, anything in that nature to help me understand a little more your feeling since it may be my last chance to get that. WATANABE: Okay. Well, let me recognize Mr. Woodard first and -. WOODWARD: Thank you, Mr. Chair. If I could address that. And that’s why I was asking about how everything is zoned around there. And there are quite a few areas that are zoned half acre or one acre. You know, I think if there had been dialogue perhaps this could have been rezoned Ag, you know, 1 acre. But it sounded like a fait accompli that it was, you know, my way or the highway; and that’s kind of what bothered me. You know, I think if there was a dialogue and, okay, you know, Mr. Lim says okay we can live with one acre, you know, we’ll change it, and Mr. Yuen says okay, that’s fine, I could live with that. But, you know, it’s one side against the other with nothing in between; and that’s what bothers me, that there has been no dialogue, there has been no attempt to resolve this, you know, in a mutually beneficial fashion. That’s my concern. WATANABE: And if I might respond, this is how I feel about it. As we heard testimony this is the most extensive open area; and I traveled that road quite often while I served as branch manager out in Kohala so I’m familiar with that. It is, and there is a lot of opportunity for open spaces there that we can preserve that isn’t currently zoned RS-15 or Ag-1 even. Maybe it should be 5 acres, maybe in some sections it should be Conservation. But we have that opportunity to preserve, yeah, significant shoreline vistas along that highway, Akoni Pule Highway, without infringing on the rights of any individuals, whether they were vested or technically aren’t vested any further. It would be my hope that we could send a message that way that, to the Council, that says, you know, we really don’t want to infringe on the individual’s rights although we do recognize the public’s right to some degree or desire, yeah. And if you EXHIBIT C 17 will recall, Mr. Lim indicated, and I hadn’t done this calculation prior to this, but Mr. Lim indicated that actually you can put about 107 lots on the 20, what is that, 30, 37.88 acres. And actually that might be a little tight cause you need room for our infrastructure and all of that, and, you know, also as I understand there are gulches that traverse that property. So the entire area is not flat and buildable, yeah. And, indeed, from, so for argument’s sake we’re to say that oh, with an RS-15 zoning you could have done a 100 lots, then it was downsized by 50 percent to limit it to 50, arbitrarily. Okay? But even at that 50, to be perfectly honest with you, times have changed; and I’m not inclined to say go ahead and stay with the RS-15 and 50. I’m more inclined to negotiate to some lower density. Unfortunately, you know, whatever density we negotiate to, it won’t be reflected by the actual zoning. But we have other methods of controlling the amount of density. Some of the conditions have already been agreed to, such as no second homes on the property, additional shoreline setbacks, public access which the public could actually gain. So I see it as a way for the public to win to some degree. Yes, the vistas in this area might be affected to some degree. How much frontage is that as a percentage of the entire length of Akoni Pule Highway all the way out to Kohala? Very small, I think. And so why would I, in my view, why would I make a stand and affect private individual’s rights when I have much more land to preserve vistas with. That’s my point. GRAHAM: Thank you. WATANABE: Mr. Rho, you have something to add? I know you -. RHO: He was holding -. WATANABE: Oh, okay. Mr. Domingo. DOMINGO: Thank you, Mr. Chairman. You know, this really is a serious matter. And having been on the County Council for 20 years, and probably 18 of those 20 years I was the Planning Committee Chairman, if my memory serves me right, I have never even been able to entertain a motion to downzone; and if I had, I guess my senior moments preclude me from recalling if I did. But, you know, I can’t recall having done that. You know, it has often been said that the General Plan is a bible of the whole planning process in our County. Everything we do hinges upon what is written in the General Plan and what is described in the General Plan. Okay? The decision made by the Council at this time -- and I wasn’t on the Council at this time when this was considered, I think it was considered shortly after I retired -- you know, the decisions made were based on what the General Plan permitted uses were for this particular parcel. It was done in that manner. And within the Zoning Ordinance you’ll find that, you know, there certainly may have been some strong considerations about the development of this area. Therefore, they initiated and conditioned upon the developer to address some of the concerns, you know. Having done that, the measure was adopted and passed and became law. Now, you know, I think as we make these kinds of decisions, you know, even each and every one of us as Commissioners, the decisions we make has a very lasting and a serious impact on the lives who owns those properties. And I refer mostly more specifically to the young individuals or couples or parents, more so than with developers. But this principle also applies to developers as well EXHIBIT C 18 because there’s no one principle that you can apply for developers or a single individual. And that is, you know, the issue of integrity. If you say, okay, that’s the way it’s supposed to be, then you seal it with your signature and you stamp it, and it’s an ordinance, it becomes law. Therefore, everything that is on that book is something that both parties must adhere to. Yeah? But when we, I wouldn’t use the word arbitrarily, but when we think of trying to downzone a property of this magnitude then it becomes a real serious matter; and this is where I have strong reservations about, you know, supporting this initiative. Because in me I know it’s wrong. You know, by law it’s wrong. And it’s morally wrong when you put individuals through the whole process of meeting requirements and paying, you know, paying water commitments and all of that and then you say to them, hey, look, we’re going to take, we’re going to take your zoning away therefore you will not be able to develop it as was decided, you know. And that’s where I have a problem, too, Mr. Chairman. WATANABE: Thank you. We haven’t heard from you, Mr. Rho. RHO: I just wanted to say a few things. One is I agree time has passed, and we have a requirement or at least a timeline requirement for these projects. And during my short time on the Commission my recollection, and I have repeated senior moments nowadays, is that we always or have allowed these time extensions because we generally feel that the developer or the private individual with that 15,000 square feet lot or that 10,000 square feet lot with a home on it, etc., etc. is entitled, should be able to, we should give them the benefit of the doubt, etc., etc. So in general my general feeling is that the Commission will bend over backwards to protect the individual’s rights. I don’t have any problem with that. I think that’s the way to be. But there is or there must be a reason for these timelines. And I think I know why the timelines are there. So when it comes to some of these issues that have come up I have a very difficult time allowing or saying, okay, I can go with extending the timeline. Times have changed, the developer in this case knew what the timeline was. I think the community should have objected to this change, this SMA and whatever, whenever it came up. But we didn’t have foresight then, and maybe now as a community we have more foresight, more information, more knowledge, etc. So I’m sympathetic to the developer; but at the same time the community good with this Director’s proposed change I think overwhelms the developer’s need to keep the zoning. We just basically did the same thing in different ways, different wording, to the Kona Scenic, and I remember that’s Kona Scenic, Kona Scenic that Highway Bypass thing. We promised that community that, nobody denied that we didn’t promise them, that we wouldn’t run the road through their property. But today we, because of circumstances and for me personally because of greater community good, I voted in favor of reneging on that commitment to that small community, 100 homes, to run the highway or run that roadway. Hopefully it will be safe because it’s only up hill and it’s only temporary. So, you know, I don’t buy this thing where once it’s done, once it’s voted upon, it has to stay that way because that person or that group is entitled to it. Times change, attitudes change, the needs change. So my last little comment – If we had this kind of foresight a long time ago, and I mean a long time ago, we wouldn’t have Alii Drive, makai Alii Drive, looking like it is today. I don’t care EXHIBIT C 19 that the lady today said it looks beautiful.It does not. We have development everywhere along that Drive; and there will be pressure to develop from that new Bypass Highway. I don’t care that we say, oh, well, we want it in preservation or whatever. There’s going to be tremendous pressure to develop that, along that Bypass Highway. Anyway, I really think that the Commissioners should really look at supporting this, the Director’s recommendations, for this specific area for the greater community good. Thanks. WATANABE: Okay, Shelly? OGATA: I guess my question at this point would be is there any possibility of some kind of a compromise from the RS-15 to the RA whatever it is, RA-5. Is there any middle ground that can be reached? Cause I share both sides of the issue and I’m just wondering if there’s any -. WATANABE: Let me take a stab at that, Shelly. OGATA: Okay. WATANABE: The Commission, the Planning Commission, as I understand it, does not have the power to initiate a zoning change. There are other zonings, like say RA-1 or RA-2, that could possibly, you know, act as a compromise. But the Commission on its own does not have the power to initiate any zoning change. We do have to one way or another respond to the Director’s initiation for revocation; and the deadline is today. I mean, it has been extended by way of the Director allowing it to be extended. We do, however, have an opportunity as a Commission to, again, we’re not going to do any approvals but we do have an opportunity as a Commission to suggest and recommend other conditions. And one of those conditions might be a limit on the units which, in effect, would have the same affect or nearly the same affect as rezoning to Ag-1. For example, if you had it at Ag-1 with 37.88 acres and allowing for the setbacks and the infrastructure and etc., maybe you could squeeze in, you know, between the gulches and everything, 30 units into that. So you would have an approximate same effect. The problem with still having the RS-15 is technically the developer could go in there and make 15,000 square foot lots all in a bunch and, you know, there would be no view corridors at that point. But I would venture to guess that the developer is not interested in creating a pod with common areas, large open space common areas. So the developer is going to subdivide the lots to larger lots anyway, and it’s going to become RS-1 or 1 ½ or whatever; and, you know, potentially in the northern section where it’s Extensive Ag, maybe that’s the side that the developer may choose to place larger lots there. But we don’t have, as I understand we don’t have the ability to initiate, again, change of zone. But fortunately for us Condition C did have a unit, 50 units in there as a constraint and we are, you know, if the applicant’s representative is willing, able to negotiate on that basis. I hope I answered your question. But it doesn’t appear as though any type of negotiation between the applicant’s representative and the Director will occur; and we’re out of time. LIM: May I make a statement, Mr. Chairman. I guess, you know, we’re kind of stuck, in terms of the applicant’s side, we’re stuck. We can initiate a zoning amendment or an amendment to an SMA Permit, but we can’t do that without the Director’s cooperation. EXHIBIT C 20 WATANABE: Well, I understand that, Mr. Lim; but on the other hand I think you would rightfully be leery of initiating that, not knowing whether it would pass or not. So if you would allow us, you know, maybe we can work this out as best we can. It doesn’t appear as though we have the votes. So it seems like we’re going to punt anyway on Item 4 anyhow; and then we can discuss this further when we discuss Agenda Item 5, which would be yours. And at that time, like I pointed out earlier, the applicant has the, there’s no argument about that, the applicant has the right to extend the time; and we could do this in conjunction with the SMA Permit. However, I would encourage us to, you know, entertain further discussions today so at least when Agenda Item 4 goes up there’s a little more documentation as to where this body might be headed or leaning and why? And so maybe that would be -. I’m not suggesting that you, I appreciate your volunteering that, but I’m not suggesting that you needed to initiate any change of zone. Would you, Shelly, share with us your feelings? OGATA: No, no, at this point in time based on what I’ve heard thus far I’m not inclined to agree with the Director’s position. So -. WATANABE: Okay. Well, we’ve heard from all of the Commissioners and we heard from the applicant’s representative and the Planning Director.I would entertain a motion. I don’t suspect that motion would carry, but at least that way we could, you know, put it to bed and we’ll, you know, we’ll have to send it up as whatever turns out turns out. So I’d entertain a motion at this point. DOMINGO: Mr. Chairman? WATANABE: Yes. DOMINGO: Regarding Planning Director’s initiative, Rezoning No. 07-000067/REZ 866, with the initiation of a change of zone for 37.88 acres of land from a Single-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-5a) district, I move that we send an unfavorable recommendation to the County Council. WATANABE: Is there a second to that motion? WOODWARD: Second. WATANABE: Okay, it has been moved and seconded; and I believe we’ve all kind of expressed our views on this. So I doubt that any further discussion is needed. Mr. Darrow? DARROW: For clarification, we are on Agenda Item No. 4. Agenda Item No. 4 has two items. Is this for both items? WATANABE: Oh, very good. Mr. Domingo, you’re in reference to both items meaning No. 4.a. and No. 4.b.? Because No. 4.b. it references the repeal of the Ordinance 97-102 which we-. It’s one in the same really. EXHIBIT C 21 DOMINGO: Yes. WATANABE: Would you kindly include that? DOMINGO: I would include that. WATANABE: As a friendly amendment? DOMINGO: Yes, I would include that. WATANABE: Thank you. WOODWARD: I agree. WATANABE: Okay, thank you. It has been seconded. Yeah, so Mr. Darrow, we have a motion to send an unfavorable recommendation on Agenda Items 4.a. and .b. to the County Council. DARROW: Thank you, Mr. Chairman. With that I’ll take the vote. Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Woodward? WOODARD: Aye. DARROW: Commissioner Graham? GRAHAM: No. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Rho? RHO: No. DARROW: And Mr. Chairman? WATANABE: Aye. DARROW: The motion does not pass four to two. EXHIBIT C 22 WATANABE: Okay, that takes care of Agenda Item 4. Because we are out of time, that means procedurally this goes up with a negative recommendation to the County Council. The discussion ended at 6:06 p.m. Respectfully submitted, Sharon M. Nomura, East Hawai‘i Secretary A T T E S T: Noriko Sauer, West Hawai‘i Secretary EXHIBIT C 23