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HomeMy WebLinkAbout2007-01-05 tclark PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JANUARY 5, 2007 A regularly advertised hearing on the application of CLARK REALTY CORPORATION (REZ 06-000053)was called to order at 9:01 a.m.in the County of Hawaii, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman William R. Graham presiding. Kimo Alameda PRESENT: C. ABSENT & EXCUSED: Jeffrey McCall Fred Galdones Allen Salavea Andrew Iwashita Alvin Rho QdmdlRhq`btr` Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 11 people from the public in attendance. APPLICANT: CLARK REALTY CORPORATION (REZ 06-000053) Change of Zone for 21,050 square feet of land from a Limited Industrial – 20,000 square feet (ML-20) to an Industrial-Commercial Mixed – 20,000 square feet (MCX-20) district. The property is located along the west side of Kanolehua Avenue, approximately 95 feet north of the Kanoelehua Avenue – Hualani Street intersection, Waiakea House Lots, First Series, Waiakea, South Hilo, Hawaii, TMK: 2-2-35:47. GRAHAM: The first item on the agenda is a Change of Zone from Clark Realty Corporation for 21,050 square feet of land from a Limited Industrial – 20,000 square feet (ML-20) to an Industrial-Commercial Mixed – 20,000 square feet (MCX-20) district. This is located along the west side of Kanoelehua Avenue, approximately 95 feet north of the Kanoelehua Avenue – Hualani Street intersection. This is in Waiakea, South Hilo, Hawaii. Norman, you’re ready? HAYASHI: Thank you, Mr. Chair. The subject property is identified by this red dot. It is situated along the west side of Kanoelehua Avenue. Kanoelehua Avenue is a six-lane highway with a median dividing the in-going and out-going traffic. This would be in the Hamakua direction and this would be in the Volcano direction. Adjacent to the subject property is, for those of you who are familiar, is the Deluxe Paint Center. It is situated at the corner of Hualani Street and Kanoelehua Avenue. The area to the north is currently vacant, the adjacent EXHIBIT A 1 property to the subject property, including the property that is indicated by this blue-shaded area. The colors indicate the various zoning districts. The blue areas are areas that are currently zoned for MCX, similar to what the applicant is requesting. The gray shaded areas are Limited Industrial areas. This is the Kekuanaoa Street, and this would be the airport access road. The yellow areas are zoned for Single Family Residential uses. We do have some Commercial lands that are designated here in lighter red. The applicant intends to rezone the property from a Limited Industrial – 20,00 square foot to an MCX -20,000 square foot zoned district. The property consists of 21,000 plus square feet. The proposal is to construct a two-story office building approximately 8,500 square feet in size. The applicant, Clark Realty, intends to relocate its current operation at the, I believe they’re at the Hilo Lagoon annex, the front building in front of the Hilo Lagoon Center, within this particular building. The remaining area will be leased or rented out to potential tenants. Access to the property would be at this particular location off of Kanoelehua Avenue. As I indicated earlier, this is the, well, three lanes going towards the Keaau area; and there is a median that separates the outgoing traffic in this direction. So egress and ingress to the property would be right-turn out only to the property. Parking would be located in this general area indicated in gray. Back in 1999 Gerald Kodama came in for rezoning for this particular property from a Single- Family Residential to ML-20 zoned district. His intent at that time was to construct a facility for his Harper Car and Truck Rental business. Since that time Mr. Kodama had sold the property to Clark Realty who is now requesting a zone change. The property has water available. Wastewater treatment would be connected to the County sewer system. The current General Plan for this particular area is Industrial. As I indicated earlier, surrounding the property, these lands are vacant. These are lands to the north. We have the Isemoto Contracting facility at this particular location. There are Single-Family dwellings, existing single-family dwellings in this particular area. The property is currently vacant of any uses. There was a single-family dwelling on that property but the dwelling has since been demolished. The Planning Director is recommending approval of this particular request with conditions. Are there any questions? GRAHAM: Commissioners, any questions? Yes, Commissioner Iwashita? IWASHITA: I have a, I guess, a procedural matter I would describe to address and disclose. Several years ago in my capacity as a lawyer, I represented a client who sued Clark Realty. The case was settled. So I just wanted to disclose that Mr. Lim’s firm, Carlsmith, defended Clark Realty in that case. And so I just wanted to disclose that, and that I don’t really feel it will pose any problem for me to evaluate and decide this matter. I want to disclose it and I guess ask Mr. Lim if his client had any problems with me hearing this application. GRAHAM: Thank you, Commissioner Iwashita. We might as well take that up when Mr. Lim comes forward. Commissioner Alameda, do you have a question? EXHIBIT A 2 ALAMEDA: No. GRAHAM: Mr. Watanabe? WATANABE: Yeah. Norman, originally I was a little concerned, not so much about the application itself, but the comment from the State Department of Transportation regarding the potential for interference with aviation. And I think the thing that struck me was the light reflection that they referred to in their Dec. 11, 2006 letter. This morning we came in and it looks like we have something from Carlsmith and Ball regarding 37 feet above ground will not emit frequencies and light reflection outside of the normal course of commercial activities permitted. But correct me if I’m wrong I think the height limit was 45 feet in here. And I’m wondering if this might be something that, you know, we’d want to put some type of limit. I suppose they’re going to be within the 45 feet with a planned two-story structure anyway on the other end. But in the future someone might want to do something else that, you know, might exceed that 45-foot limit; and maybe we should make a condition for that. HAYASHI: Commissioner Watanabe, you are correct. The height limit within the MCX zoned district is 45 feet. Normally on a two-story structure the height would be approximately 25 or 30 feet at the most. WATANABE: Mr. Director, you know, the zoning though would stay with the property irrespective of what this building is like. So I’m wondering if based on this new information that we got today if it would be advisable to put say like a 35-foot height limit only because of the proximity to the airfield. Or if you feel comfortable and, you know, there’s a check and balance with Building Department when somebody goes to apply that, you know, they will pick it up then -. I don’t have a problem with the project in itself. I believe the State Department had recommended that a study be done. I assume that, you know that -. YUEN: Well, I think that the condition that I would suggest is actually a condition requiring that they submit this form as requested by Department of Transportation. I don’t know if that’s actually a legal requirement if we don’t put it in the rezoning ordinance or it was simply a request that the Department of Transportation is making because of the location. Norman, do you know if they must submit this form regardless? HAYASHI: I’m not too sure. YUEN: So I think that we should require them to submit the form and to comply with any requirements imposed by the FAA after review of the form, just in the case that maybe they are not otherwise controlled. WATANABE: The form we’re referring to is that FAA Form 7460-1? YUEN: That’s right, paragraph 1 of DOT’s Dec. 11, 2006 letter. EXHIBIT A 3 WATANABE: I just didn’t want to require the study in the thing, cause I don’t know what, you know, I have no idea what’s required. And the study might be, you know, not only time consuming but real expensive. I suppose requiring the form is minimal and yet covers us. YUEN: Right. I don’t think that the form itself, I think the form itself is something not that onerous. It just means that the applicant describes what they’re doing and they submit to the FAA; and the FAA tells them if it will cause a problem. There was a rezone, didn’t we just do Ishii next to this? And Ishii, I know he has to fill out form. We didn’t require that but he’s going through that. He was a pilot and I talked to him about it. This side of Kekuanaoa is not as big a concern as the Puna side of Kekuanaoa. But as far as the guide path of planes landing at the airport, the FAA is mostly concerned about a cone extending on the Puna side of Kekuanaoa into Waiakea House Lots because there’s one runway that, and I don’t remember the numbers of the runway, but there’s one runway that comes in at an angle there. And I think most people have seen small planes come in that come across Kekuanaoa at an angle from more or less the Puna side. So on this side height is not so much of problem. But since they’ve expressed this concern I think you’re right to pick it up; and we can put that in as a condition that they file the form and whatever FAA wants them to do. If they want them to use a different kind of glass, then -. Of course the airport is of crucial importance to the community. So whatever is necessary to make the airport function or keep the airport safe we should go along with what the FAA wants. GRAHAM: Thank you. Any other questions from Commissioners? Norman, I have one point I wanted to bring up and just for you to, I think I got it right, but just for you to confirm -. Back in the 90’s this property was in the RS Residential zone and we have in our background that there was rezoning in ‘97 to ML zone. And I believed that rezoning came with conditions, and from what I see the conditions have not been complied with, timely and all that; nevertheless those were conditions of the approval of that rezoning. At this point they treat this property as if it were in the ML zone; and therefore the change of zone from ML to something else, MCX. Is that correct? Even though those conditions were not totally met from the prior rezoning from RS we don’t worry about that and we treat it as if it is now in the ML zone? HAYASHI: Well, once the rezoning of this particular property is granted then this would supercede the prior ordinance, Ord. 97-93; however, procedurally I don’t know whether we should have recommended nullification of this particular ordinance. Perhaps that question may be better directed to legal counsel, or maybe the Director could respond to that. GRAHAM: Yeah, I think when I was new to this Commission we had a similar situation and I brought up this point; and Mr. Yuen did kind of respond to it in that fashion at that time. And if he’d like to say a few words to that, right now might be good so the other Commissioners are seeing things in a way which I think the Planning Department sees things. YUEN: Well, if I can remember what I said before. But I think we actually should, hang on a second here. There’s they have not secured final plan approval and -. I suppose for the sake of clarity we should repeal the prior ordinance. EXHIBIT A 4 GRAHAM: Chris, what I actually remember you telling me before was that even if the prior ordinance wasn’t fulfilled then the requirements, we treated the property now as if it was in the newly zoned ML district; and that you could if you wished initiate proceedings to revert to the old zoning but that was not necessary you felt. So we could just go forward from the ML district which is how it is currently carried on the books as the way you described it at the time. YUEN: Well, I think, it’s definitely true that they still carry it on the books so to speak in our zoning maps as being in the ML district; however, if the time requirements have not been met the property is in a bit of limbo as far as the actual development of the property. What happens is that say somebody then comes in with an industrial building under the ML zone and they need plan approval from the Planning Department, the staff who are working on plan approvals is supposed to look at the rezoning ordinance and notice that the time conditions have not been met. And therefore the applicant either has to, if it is still within the timeframe for getting an administrative time extension they would have to come in and ask for that administrative time extension; and if they’re beyond all the administrative time extensions then they have to come and ask the Planning Commission and then the Council for an extension of all those time conditions. An example of that would be the Takase office building on Kilauea Street next to the Mormon Church where all the time conditions had expired; and so to revive the CG zoning that they had there they had to come back and do that. Now in this case apparently they are, and I’m looking at the conditions, I don’t know whether a commitment payment was made in B, certainly construction had not been completed within five years; if they ask for an administrative time extension, example, on C, they could have an administrative time extension until July 2007; and those are the only time conditions. I think if we didn’t formally repeal Ord. 97-93 in the process of doing this kind of an application that it would be impliedly repealed by the new rezoning ordinance.I do think though as a matter of general practice we should process a repeal of the prior rezoning. You know, as I said, I think if you don’t do it, it is impliedly repealed by the new action. GRAHAM: So are you suggesting that we just carry forward then? YUEN: At this point I would just carry forward because I’m sure it has happened many, many times that rezonings have been, you know, you have one rezoning ordinance and then you rezone the property from the prior rezoning ordinance without actually repealing. I know it has been done many, many times. I just think that for the sake for clarity especially when there’s an issue that maybe the conditions of the prior ordinance have not been fulfilled that you ought to repeal the prior rezoning ordinance; but, you know, I don’t think it’s absolutely necessary from a legal point of view. GRAHAM: Commissioner Watanabe? WATANABE: Yeah, I’m wanting to chime in on that. And I’m wondering if, that ordinance that was drafted in 1997 has a Condition N to it, should any of the conditions not been met or substantially complied within a timely fashion the Director may initiate rezoning of the subject property to its original or more appropriate designation. So I’m wondering if we can hang our hat on that and skip the repeal issue and avoid any potential notice issues by doing so. EXHIBIT A 5 GRAHAM: That sounds reasonable. Mr. Torigoe, do you have any comments on that? TORIGOE: Thank you, Mr. Chairman. Yeah, I would, I was going to bring up Condition N if nobody else did. Basically it does sound like the Director has the authority to initiate and it says “may” initiate rezoning. And at this point we don’t really have a clear inclination about whether Condition E was met or not. And as the Director noted Condition C is still open, therefore they can request a time extension until sometime in 2007. And so at this point the state of the record is that the Director has not initiated rezoning of the subject property to its original zoning. And I think if you did go ahead and if there was a rezoning passed then that could have expressly basically superceded the original rezoning in any case. So I think it’s well within your authority to just go ahead at this point; and you should probably get some input from the applicant also regarding those issues. GRAHAM: Thank you. Commissioner Siracusa. SIRACUSA: In order to make sure that our “i’s” are all dotted, etc. and that we aren’t setting a bad precedent would it be wise for whomever makes the motion to approve, and I knows I’m jumping the handle, to include the fact that the motion would also repeal the previous ordinance based on noncompliance, so it would be part of the record at that point? So when it comes up before the Council they would both be dealing with the repeal and a change of zone? YUEN: Well, I wouldn’t do that because the prior ordinance is not on the agenda. That’s the one thing I wouldn’t do definitely.I do think that, I’m comfortable if we go ahead and this thing passes that the prior ML zone Ordinance 97-93 is repealed by implication and none of the conditions that apply to that ordinance stand. GRAHAM: Any further questions from Commissioners? All right. Will the applicant/or representative please come forward. Could you please raise your right hand so I can swear you in at this time. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? LIM: I do. FRANCIS: I do. GRAHAM: Thank you. Thanks for your patience while we were discussing the legal issue. I also had no one here signed up to give testimony from the public. Usually we would swear them in at this time also. Is that correct, there’s no one here from the public to testify on this time? NOMURA: Correct. GRAHAM: All right, thank you. Go ahead, Mr. Lim. EXHIBIT A 6 LIM: Thank you, Mr. Chair and Members of the Commission. I’m Steven Lim with Carlsmith Ball, PO Box 686, Hilo. With me to my left if Mr. Barry Francis, who’s the Vice-President for Real Estate Development for Clark Realty. Thank you for hearing our rezoning request. I guess we’ll handle first thing first, is Mr. Iwashita indicated he wanted to see if we had any problems with his prior representation of a client against Clark Realty. That case has been closed as far as I’m aware; and even if it isn’t, we don’t have any objections to him acting on the matter. GRAHAM: Thank you. IWASHITA: Mr. Chair? GRAHAM: Commissioner Iwashita. IWASHITA: Just to clarify that case was settled and so it has been resolved -. GRAHAM: Okay. LIM: Okay, secondarily, I’ll address the, rather than go into a presentation, I think Mr. Hayashi did a good job of presenting the project. The issues that arose during discussion earlier where Commissioner Watanabe raised the DOT issue, we are in agreement with the Director’s suggested condition of filling out the FAA Form 7460-1. We did a little bit of research on that issue just to check it. The building proposed is between 37 and 40 feet in height and the height limit in MCX district is 45 feet. We had, from another case, we had a diagram which showed the height limits for buildings, this is kind of a regulatory thing that Department of Transportation, Airport uses; and it’s kind of poor quality so he wasn’t going to pass it out. But essentially what we’re seeing is all of these various lines which indicate contours from maximum heights of buildings. I don’t think it addresses reflectivity and building materials. But for simply the height issue, even if you’re right around where the runway is, it’s 40 feet height maximum there already. So by the time you reach the woodpiles out at the HPM stockyard out there they’re at like 60 feet already. So I do not think height in and of itself is going to be a problem. But the FAA form does address other types of reflectivity issues they’re wiling to do that as a condition of the approval. I think for purposes of however the Director wants to handle the prior ordinance, that 97-93, we have no objections to however you want to handle that. GRAHAM: All right. Thank you. Are there any questions for the applicant from the Commissioners? Commissioner Iwashita. EXHIBIT A 7 IWASHITA: Thank you, Mr. Chair. Ord. 90-93 Condition E required payment of the water commitment. Do you know whether or not that was, in the due diligence in acquiring the property, whether or not that was paid by the prior owner? LIM: We don’t believe so, and we have the same condition in ours. Mr. Francis is going to be starting his work based upon action today by the Commission. If we get a favorable response he’s going to begin his work on the engineering submittal for the determination of what the water commitment payment would be. We will be paying our own water commitment. IWASHITA: So, I guess, the concern I would have is that basically the County will be losing out on this prior requirement where the water commitment payment from 1997 is supposedly to have been paid within 90 days from the enactment of the ordinance. So I don’t know if that could be addressed here. But in going through the process I guess it seems to me that the County should not be shortchanged. I know the Water Department doesn’t really hurt for money. But if that payment had not been made, right, that would be a basis for the Director at that time to proceed with the repeal of the subdivision, I’m sorry, the rezoning approval, would it not? YUEN: The question was if they had paid that? IWASHITA: No. If they hadn’t, assuming Mr. Lim is right and the prior owner did not make this payment within the 90 days. YUEN: Well, there are a couple of possible consequences. All right, first consequence is that the Director will be authorized to initiate a rezoning of the property; second consequence is that if they came in later to try and develop the property and upon review it was discovered they had not met this condition, then we would say they need to go for a time extension. You see, well, let me see, before I jump and say what it would be, let me just make sure. I believe they would have only 90 days to extend administratively. IWASHITA: Right. YUEN: So then they would have to go to the Commission and Council to extend that, to extend, you know, now for example, if they were trying to extend it. But, you know, I can also tell you that, so that’s why I say they are in a limbo stage. You know, you cannot develop the property according to ML zoning; but it’s also fairly clear under the law that, there’s case law that discourages the concept of automatically reverting the zoning. The law is that it should be done with notice to the owner. So we would not say that the failure to have paid the water commitment automatically reverts the zoning to an RS. It puts you in this limbo situation where you haven’t fulfilled the conditions of your ML zoning but you haven’t been reverted to the RS zoning. GRAHAM: My sense also is that we are not taking final action here, we are just making a recommendation to the County Council, and maybe we don’t need to belabor this too much. Yes, Commissioner Iwashita. EXHIBIT A 8 IWASHITA: I guess my inclination is that an additional condition should be that the applicant pays whatever that fee was in 1997, in addition to the fee that the applicant is going to be required for this rezoning. Cause to me the County is losing out on whatever, the Water Department is losing out of that water commitment payment per its guidelines in 1997 that should have been paid even if the property wouldn’t have been developed under the approved ML zoning, you know -. And an extension was granted it would have gotten it at that time, whenever that was. So, you know, this entitlement which the Director is correct that, you know, is protected by law, I mean it has conditions. So we go through this whole process and then basically the owner gets the benefit of the upgraded zoning and sells the property without any of the conditions. I don’t see why the County Water Department in this case should be shortchanged the fee that it was supposed to have been paid under the conditions by the owner who got the rezoning approved and has already sold the property. You know, that fact should not impede the fact that the requirement should be met. GRAHAM: Mr. Lim, would you like to comment on that at all? LIM: Yes. I think as the Director indicated these rezonings happen quite often and in most cases they don’t do anything with the old rezoning ordinance. You know, Commissioner Iwashita’s comment might sound what would be in the best interest of the County; but I think it’s so hypothetical it’s pretty difficult to impose it on the owner. You know, No. 1 it wasn’t our condition and No. 2 those water facilities charges are based upon a calculation on what was proposed to be developed. And at this point in time I’m not aware of anything that was submitted to the County, so you don‘t really have any baseline for what that facilities charge would have been from the ‘97 ordinance anyway. IWASHITA: May I respond? GRAHAM: You can respond, but I was just thinking if we come to a point in a short while in order to move things along where we have a motion on this application, then you could suggest that as an amendment to the motion. Or if you make the motion, you can include it in the motion; but at that point we won’t have Mr. Lim, so if you do have anything further you’d like to address to Mr. Lim for his response, you’re certainly welcome to do so. IWASHITA: Thank you, Mr. Chair. My concern is that in this case the applicant purchased the property for his own perceived development purposes; and it’s real estate firm as well as developer, and I’m sure that Clark Realty understood its due diligence requirements in terms of purchasing the property and examining 97-93 before it purchased the property. And if there was any question about whether or not the conditions have been met, especially B, then it should have been addressed with the Water Department at the time and determined before sale whether or not the payment had been made. And if, as Mr. Lim had indicated, that in fact the payment hadn’t been made then, you know, as a real estate company it should know that this zoning is in limbo; and it has purchased the property in my mind under those circumstances. And now I don’t think they can really argue that in ignorance it should not have to make the payment that it actually knew or should have known that it had not been paid. So the bottom line EXHIBIT A 9 to me is the County is being stiffed out of this fee that should been paid in ‘97 and it should not be stiffed. GRAHAM: Did you want anything further from Mr. Lim on that? IWASHITA: Oh, no. I think that’s just my response, you know, to basically, the acknowledgment that Clark Realty knows now and maybe even before it bought this property that the payment hadn’t been made. GRAHAM: Commissioner Watanabe? WATANABE: I’m not sure if I should make the motion first as you had recommended and we follow it by follow-up comments with Mr. Iwashita -. GRAHAM: We’re really not at the point in the hearing. We still have the applicant before us and we’re just asking questions of the applicant. WATANABE: Well, I, okay. Then it may be a little bit out of order but my comment is this: Okay, in the event that the former owner who originally had the entitlement given to them had paid the water commitment, had developed the property, Clark Realty today having bought that property with an existing building would not be required to pay an additional water commitment. They would just be coming in here for a zoning change because the uses are not permitted within that particular zoning. And to a degree it would seem to me that the zoning change they’re requesting is kind of like a step down from what the current zoning is, assuming, you know, they’ve followed up with all of their commitments. So I just don’t see where the County is getting stiffed. GRAHAM: Commissioner Siracusa? SIRACUSA: Yes, I was just reading the comment on this application from the Department of Water Supply and there is no mention of a previous water commitment that the Department feels is due to them. If they had built something and were using water and hadn’t paid for it, I could see that as an issue. But since they never did do the construction and never submitted the data, the water use calculations that were requested, it seems to me that Mr. Lim’s client can just go ahead and do it now based on what they’re going to be building, and make the appropriate submittals to the Water Department, and let them calculate it out. It’s their own kuleana to protect their own interests. GRAHAM: Okay, thank you. Mr. Lim, you have anything further? LIM: I guess the last comment we have on this issue is even if this was, the suggestion by Mr. Iwashita was made a condition of the rezoning, we would have to submit calculations of the proposed use for the prior owner, and how would we do that? It would be impossible for us to do. HAYASHI: Mr. Chair? EXHIBIT A 10 GRAHAM: Mr. Hayashi? HAYASHI: I just wanted to clarify. It’s my understanding when you make a water commitment payment it’s only good for “x” time period. So say if it was paid back in 1997 and no development had occurred, I believe that water commitment has already expired. So anybody else that comes in thereafter would have to make a new water payment commitment. So if Mr. Kodama had paid back in 1997 that doesn’t mean by coming in today that they don’t have to pay for a water commitment. I believe that previous commitment has already expired so Kodama and Clarks would have already lost that money. GRAHAM: Okay, thank you. Let me express the Chair’s concern. The Chair’s concern is it feels like it’s a fairly small issue we’re spending a lot of time on. We’ve got a number of people here from the public, so I would prefer that we kind of move forward. And then when we make our motion if we wanted to take a stand one way or the other we can do so. Mr. Lim, I presume you’ve read the recommendations from the Planning Director on this. Do you have any comments, or problems, or questions? LIM: No. We have read the background report and recommendations; and Mr. Francis and I have no comments but we would ask for your support. GRAHAM: Thank you. You all may be seated back again. I think we’re finished with that. This is a public hearing so if anyone else at the meeting would like to testify now, please come forward. All right, seeing none, I think we can go forward. So we’ve had the presentation and listened to the applicant and now we’re in our own session to take action. Commissioner Watanabe? WATANABE: Yes, I’m ready to make a motion if that’s in order. GRAHAM: That’s fine. WATANABE: Okay. I move that a favorable recommendation for Change of Zone Application (REZ 06-000053) be forwarded to the County Council based on the Director’s recommendations and with an added condition. I guess this would be a new condition, that the Department of Transportation’s FAA Form 7406-1 will be completed by the applicant and submitted to the Federal Aviation Agency. GALDONES: Second. GRAHAM: Thank you. We have a second from Commissioner Galdones. Is there any discussion from the Commissioners? Okay, seeing none -. IWASHITA: Mr. Chair? GRAHAM: Yes, Commissioner Iwashita. EXHIBIT A 11 IWASHITA: I guess, I’ll just make a comment. And that is, you know, based on what Mr. Hayashi presented it sounds like that’s right to him, I didn’t really know. But the fees that are charged by the Water Department, we have infrastructure problems, not only with our roads, but with water, right, water facilities. And it seems like, you know, if we allow developers to come in and we place these conditions and the payments, I guess Mr. Lim says most times they don’t get paid. You know, the developers are speculators basically. And people come in and get the entitlement, don’t make the payment, right, and sell the property at the enhanced value based on the zoning change and, you know, we end up with just one water commitment instead of in this case had Mr. Kodama paid the fee as he should have, period, right, the Water Department would have had that fee. You know, and if he never did the development within the appropriate time period, the Water Department would be entitled to collect another fee. But that money I’m sure the Water Department can use to enhance our infrastructure. And if those fee aren’t being paid as a matter of course, I think that’s something we need to address, because that’s money that the County is by law entitled to receive and is not receiving. And then we’re just saying no, never mind, we’ll just forget about it, and we don’t need that money. But, as a matter of fact, we’re saying we don’t need that money to develop the infrastructure; and I think obviously we do. So to me, yes, this is one matter. And Mr. Lim is, I guess the way the fees are usually assessed I suppose it does provide some problems. But, you know, that’s for the applicant to deal with and that’s for the applicant -. The developers need to know that as part of their due diligence in buying these property that they need to make sure these payments are made; if not, they’re going to be asked to make the payment. Somebody has got to make the payment; and I don’t think we really should ignore it, you know. Because in the end we’re talking about, in mind, I guess if Mr. Lim is correct and these conditions aren’t met as a regular course, to me, it’s thousands and thousands of dollars that the Water Department can use to develop our infrastructure. So that’s my comment. I move to add another condition that would require the applicant to work with the Water Department and come to an agreement on what the fee that Mr. Kodama should have paid was and to make that payment as an additional condition. GRAHAM: Do we have a second to that motion? I think the motion dies for lack of a second. Commissioner Siracusa? SIRACUSA: Yes. I don’t understand why you think that this is for us to deal with rather than something that’s between the Water Department and Mr. Kodama. Mr. Kodama got a lot of money from selling this parcel and it was his commitment. IWASHITA: And none of it went to the Water Department. SIRACUSA: And to me -. IWASHITA: You know, the Water -. GRAHAM: Let’s talk one at a time. EXHIBIT A 12 SIRACUSA: Okay, sorry. GRAHAM: I think we should go forward. IWASHITA: The way, the system doesn’t work now. If Mr. Lim is correct and these payments in the normal course are not being made, they’re not being made for a reason. And who is it, the Water Department doesn’t care because, I guess, it has been reputed that the Water Department right now has lots of money and they can do a lot of different things. But in my mind that doesn’t mean that, you know, these conditions should be ignored as a matter of course, you know, by developers; and that if we make it a condition as a matter of course, that if the water commitment payments are not made that whoever comes in and wants a change of zone and gets some action from this body and the Council that one of the conditions is going to be that the water commitment payment that had not been paid will be required to be paid, then they’ll be paid. But if we don’t do anything then it’ll be, you know, the normal course is that it will never be paid, or hardly ever paid, or paid only when the actual development is going to occur. Presumably Clark Realty in this case will actually make the development; but, you know, Clark Realty could do the same thing, they could just forget not making the payment, turn around and sell the property at an enhanced value, and then the County’s Water Department still doesn’t have the money. So, you know, somebody has to take the stand. The Water Department, I understand your point Commissioner Siracusa, has not raised it in this matter and I don’t know what the reasons for that are. But, you know, if we don’t take a stand on it, the Council doesn’t take a stand on it, then the status quo is going to remain the same. The payments are not going to be made unless the developer actually develops the property; and we know that doesn’t happen all the time. GRAHAM: Any further comments from any of you? WATANABE: Mr. Chairman? WATANABE: Point of procedure. I believe we’ve got a live motion on the table, and the discussion has gone on to adding a condition that didn’t survive, so I would call for question. GRAHAM: Okay. Is there any objection to taking a roll call at this point? No. HAYASHI: Thank you, Mr. Chair. Just to be clear, I drafted a new condition regarding the FAA form. And if I may, “The applicant shall submit a completed FAA Form 7460-1 to the Federal Aviation Administration for review. A copy of the completed form shall also be submitted to the Planning Department prior to receipt of final plan approval.” WATANABE: That sounds very good to me. HAYASHI: Thank you. With that, I’ll call the roll. Commissioner Watanabe? WATANABE: Aye. EXHIBIT A 13 HAYASHI: Commissioner Galdones? GALDONES: Aye. HAYASHI: Commissioner Iwashita? IWASHITA: Pass. SIRACUSA: Abstain? HAYASHI: Are you abstaining from the -? IWASHITA: Yes. HAYASHI: Commissioner Rho? RHO: Aye. HAYASHI: Commissioner Siracusa? SIRACUSA: Aye. HAYASHI: Commissioner Alameda? ALAMEDA: Aye. HAYASHI: Chair Graham? GRAHAM: Aye. HAYASHI: Mr. Chairman, motion carries, six ayes and one abstention. GRAHAM: Thank you, Norman. We will notify the applicant in writing. LIM: Thank you very much. The discussion ended at 10:03 a.m. Respectfully submitted, Sharon M. Nomura, East Hawai‘i Secretary EXHIBIT A 14