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HomeMy WebLinkAbout2007-01-19 tmartinage-nunn PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT January 19, 2007 MICHAEL MARTINAGE/GREG NUNN A regularly advertised hearing on the application of (SPP 06-000039) was called to order at 9:14 a.m. at the King Kamehameha's Kona Beach Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii, with Chairman William Graham presiding. PRESENT: C. Kimo Alameda ABSENT & EXCUSED: Fred Galdones William Graham Alvin Rho Andrew Iwashita Rene’ Siracusa Jeffrey McCall Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Jeff Darrow, Staff Planner And approximately 13 people from the public in attendance. APPLICANTS: MICHAEL MARTINAGE/GREG NUNN (SPP 06-000039) Action on the Special Permit to allow the establishment of a 5-room Bed and Breakfast operation within an existing dwelling and a guest house situated on a 5.06-acre lot in the State Land Use Agricultural District. The property is located along the northeast (mauka) side of Napoopoo Road (82-5990 Napoopoo Road), Waipunaula, South Kona, Hawaii, TMK: 8-2-3:28. GRAHAM: The first item on our agenda is action on the Special Permit where the applicants are Michael Martinage, Greg Nunn. This is to allow establishment of a 5-room bed and breakfast operation within an existing dwelling and guest house located on a 5-acre lot in the Land Use Agricultural District. This is on Napoopoo Road in South Kona. At our last Kona meeting, I believe, we did have a hearing on this, but the Commission came to a split vote, so we didn’t take any action. I’d like to ask Mr. Torigoe at this time how we should proceed from today. TORIGOE: Thank you, Mr. Chairman. Basically you are picking up where you left off. The Commission at this point, as you said, did attempt to take action. There was a vote to grant a Special Permit application which failed. I think it was by a vote of four noes to three ayes. So you are picking up today with further deliberation and any other motions that the Commissioners would like to make. You can also ask the parties if there are any other requests that they would like to make at this point. And of course you do have public testimony also. GRAHAM: All right, thank you. I think if the other Commissioners are okay with it, a good start might be to have Jeff or Norman just give us a little quick rundown to refresh us on exactly what’s involved in this application. Jeff? EXHIBIT A 1 DARROW: Thank you, Mr. Chairman. As you have mentioned, this is a continued hearing for applicants, Michael Martinage and Greg Nunn. They are requesting a Special Permit to allow a 5-bedroom bed and breakfast on approximately 5 acres within the State Land Use Agricultural District. If I could direct your attention to the location map, the area of this application is within the Kealakekua, Napoopoo area. This is Napoopoo Road running in a north-south direction. We have Kealakekua Bay identified in this particular area on the map. The area of the application is identified in blue on the map. The light colored green zoning identifies the County Zoning of Agricultural 5-Acres. Looking at the location map again we have Napoopoo Road identified in this area. The applicants are requesting a Special Permit to allow a 5-bedroom bed and breakfast on the property. Four of the bedrooms will be within the existing single family main dwelling, and then one bedroom will be in a proposed guest house that would be constructed in this particular area. As we mentioned at our last meeting, there are several issues that the applicants are working on resolving as far as unpermitted structures. And prior to establishing the bed and breakfast, those particular issues will need to be resolved. At our last meeting a contested case was heard by the Planning Commission with the applicants and the intervenor, Brad Farwell. A motion was made to approve the Special Permit. The motion did not pass with three ayes and four noes. The matter has been continued today for a possible revote. GRAHAM: Thanks, Jeff. Are there any questions from the Commissioners? I also want to note that we do have the minutes from our last hearing, so that I was able, and I’m sure the other Commissioners are also, to sort of refresh on exactly how everyone spoke and what we got. I think it might be good at this time, since we do have a couple of public testifiers, before we decide exactly how we are going to go forward, just to hear from the public testifiers. So I have two here signed up: William Blok and Matthew Cordts. Could you folks come forward up to the table? IWASHITA: Mr. Chair? GRAHAM: Yes, Commissioner Iwashita? IWASHITA: This is a procedural question at this point. Are we following the contested case procedure on this matter? GRAHAM: My understanding is that we can choose to reopen the contested case procedure to take more testimony from the intervenor and the applicants and the Planning Department. But that’s a decision that we will make as a Commission, and I’m just at this point choosing to get the public testimony in right at the beginning, so they don’t have to wait and so that we can hear from their prospective before we go any further, if that’s okay. IWASHITA: Yeah, I don’t have any objection. I just want to make sure we’re not, you know, crossing any lines we’re not supposed to cross in terms of a contested case procedure. GRAHAM: Mr. Torigoe, do you have any problem how we are proceeding? EXHIBIT A 2 TORIGOE: No, I don’t. Basically the Rule 4 does provide that at every meeting on a contested case you have to give the opportunity for public testimony; it doesn’t say exactly when or where but we’ve got to do it at some point. IWASHITA: The only concern I have is that 4-22 talks about the closing of a hearing, and you know, we did that but that was determined before we voted last time. So I just wanted to make sure that, on the record, that it’s an appropriate time that the hearings reopen so we can take additional evidence. GRAHAM: Okay, thank you. I’m first going to swear you folks in and then I’ll take your testimony so -. Yes. And I will have two more coming up after you folks. Would you please raise your right hand now, and do you swear or affirm to tell the truth on this matter before the Hawaii County Planning Commission? TESTIFIERS: I do. GRAHAM: Thank you. So we can start with the gentleman on my left. And when you give your testimony, if you would please start giving your name and your address, and then go right ahead with your testimony on this matter. BLOK: Yeah, Good Morning. My name is William Blok. I live on Napoopoo Road just down, about a mile down, the hill from the proposed B&B. I’ve lived there for about thirty years. And I’m here to support the B&B. I see nothing that these gentlemen are going to do that would be detrimental to the area; I think it’s a big plus for the area. It’s well suited for the area, and I see no other problems that could come up with these guys doing what they propose. Thank you. GRAHAM: Thank you, sir. Do any of the Commissioners have any questions for the testifier? All right. Sir? CORDTS: My name is Matthew Cordts. I live on Napoopoo Road, and I also work on the land where the bed and breakfast is proposed to be; I’m caretaking the land and just take care of all the agricultural aspects of the property. It’s a very beautiful setting. And I think it’s perfect for the area, you know, it’s beneficial for people to be able to participate in agricultural type tourism and be able to stay on the property like that in such a beautiful setting as Kealakekua Bay. Do you have any other questions? But I think it’s a very positive thing, basically that’s all I have to say. GRAHAM: Do any Commissioners have any questions for Matthew? I might just ask -, last time we had testimony, the principle issue seemed to be a lot of noise from the adjacent parcel where there is ongoing agricultural processing and all. So could you comment on how you see the impact of that noise? CORDTS: Yeah, as far as the noise is concerned, it’s not very often, you know; that’s the macadamia nut machine, which runs maybe once a month. And it’s not very loud at all. But as far as just weed whacking, leaf blowing, you know, chainsawing, and pretty much the only person doing that kind of stuff is me on a daily basis, coming from our property so. I run a chainsaw and clear land, cane grass everyday because the farmland was completely overgrown; EXHIBIT A 3 there was no farming or agriculture, you know, whatsoever, going on this property till Greg and Michael took over the property. So that’s what we are trying to replace right now is the native Hawaiian plants, and productive citrus trees, coffee and things of that nature. We blow the driveway off a lot, and weedwhack a lot and just take care of what we need to do. But as far as neighbors, there is not much noise whatsoever. GRAHAM: Thank you. Any other questions? You folks can go back. Thank you for your testimony today. And I have two more signed up for testimony: Curtis Ludwig and Marianne George. Could you come forth? Thank you. And could you raise your right hand while I swear you in? Do you swear or affirm to tell the truth today before the Hawaii County Planning Commission on this matter? TESTIFIERS: Yes. GRAHAM: Thank you. Curtis, we can start with you. And if you would as before just say your name for the record and your address, and then go ahead with your testimony. LUDWIG: My name is Curtis Ludwig, and my address is P. O. Box 1703, Kealakekua, Hawaii. I’d just like to say I’ve lived in the immediate area, Captain Cook area, for going on nine years now, and was born and raised on the Big Island. And meeting with these gentlemen and seeing their potential and what they’ve done with the property, I think it’s a real asset to our community. And the goals and ideas that they have to share with community, as well as guests that they look at bringing into the Big Island, I think it’s a real asset for us here. GRAHAM: Thank you. Do we have any questions from the Commissioners? All right. Ms. George, could you give us your testimony now, start with your name and address, please? GEORGE: My name is Marianne George. I live on 82-5778B Napoopoo Road, just makai of the -, mauka of the Coffee Mill, makai of this property. And I’m a doctor of cultural anthropology. I write. I work on cultural education programs including helping with the Aunty Margaret Machado Lomi Lomi School and their related programs. I am involved in agriculture on the property that I live on. And as I observe the transformation that has occurred on the property that Greg and Michael have been working on, it’s remarkable how quickly they have made that place viable agriculturally and an asset to the community, the way it looks. And the thing I want to say about them is that they make -. I mean I’ve only lived here fifteen years, but everything that I’ve seen and the people I know in the neighborhood, Greg and Michael get along with people; they make an effort to make things work for everybody as a win-win-win for everybody. They are not complainers. They are not going down negative dead-end paths. And I think that should be understood clearly about them. I can say that about them. Thank you. GRAHAM: Thank you. Do you have any questions from the Commissioners? All right. Thank you both. And I have one more testifier today signed in: Cynthia Northrop. Could you come forward, please? Could you raise your right hand? And I’m going to swear you in. Do you affirm to tell the truth today on this matter before the Hawaii County Planning Commission? NORTHROP: Yes, I do. EXHIBIT A 4 GRAHAM: Thank you. And could you give your name and your address, and then go forward with your testimony? NORTHROP: Okay. My name is Cynthia Northrop and my address is, actually my mailing address is 82-5824B Napoopoo Road. I use my other address and I can’t think of what it is. GRAHAM: Go ahead with your testimony then. That’s fine. NORTHROP: Okay. I’m very much in favor of Greg and Michael’s B&B operations that they be granted the permit. Since I met them, I’ve been totally impressed with their integrity and their organizational skills and the aloha spirit they put into this project. And in terms of the location and the property itself, I think it’s just ideal and I think it would just be a sensational visitor experience for people who come to their operation, and I know that they would be very impressed with it. And the buffer zone around the property would not disturb other people, plus I think B&B guests are pretty low impact because they go to the beach all the time anyway. But it’s such a beautiful example of a country experience, and they have maintained the grounds of this property so impeccably that it is a property that should be shared with people, and I think it’s wonderful that they want to do it. So I am completely in favor and I don’t see any reason that it wouldn’t be wonderful for everybody. GRAHAM: Thank you for your comment. Do we have any questions from the Commissioners? All right, you can go back. I know some of you folks who testified you don’t hear anything from us, but you know, this was a tough vote for us at our last meeting so I’m sure we are all really weighing in our minds what we are hearing and what we are thinking, so you didn’t go unheard. Mr. Torigoe, how would you suggest I proceed right at this time then? TORIGOE: Well, as I said earlier, you closed the public hearing last time, and just as a matter of information, as far as the public testimony your Rule 4-21 does say that you have to afford all interested persons an opportunity to present testimony prior to the commencement of the hearing and prior to proceedings on any subsequent day to which the proceeding is continued. So I think we need to consider this as continued proceeding at this point, and so you did the right thing, I believe, in allowing the public testimony to go forth before doing anything else. Beyond that, I think it’s basically at your discretion at this point if you want to ask the parties to come forward and see if they have any further requests or anything else. Basically, though, in order to take further testimony you should formally reopen the hearing at this point. And then of course you can entertain any further motion or deliberation. If you are unable to come to a five-vote resolution one way or the other, then as a presiding officer you have the discretion to continue the matter until a later hearing. Bearing in mind that Rule 6 does contain a sixty-day post-hearing timeframe for making a decision, but it doesn’t spell out what happens if you don’t make that deadline. So basically I would say that if there was an agreement by the parties to allow for further consideration beyond the sixty days after the close of the hearing, then that would be within your discretion to do so. GRAHAM: Okay, I think what was most directly on my mind with my question was that since we did close the hearing last time, should we as Commission decide whether we want to reopen it or not before I invite any of the parties forward, or shall I invite the parties forward EXHIBIT A 5 to hear from them and then we decide, or -, just a little bit of the particulars there. Commissioner McCall? MCCALL: Sure, I would give you an opinion if that’s what you are looking for. GRAHAM: I’ll be very happy to hear your opinion. MCCALL: Well, in my opinion, if it doesn’t affect anything, I think it would be fair to get something to the effect of a final argument again from each of the two parties, see if they have anything new to bring to the table that, you know, they didn’t at our last meeting. That would be my thought whether, you know, if that conflicts with some of the contested case procedure, maybe we shouldn’t do it, but my thought would be just to let them recap or have a final say, final argument. GRAHAM: Good, that certainly sounds reasonable. And Mr. Torigoe, if we do reopen the hearing, is there a way we can open it with the sense of that’s all we are really looking for at this time? TORIGOE: Thank you, Mr. Chairman. I have to inform you also that the Staff has just informed you that there has been a possible defect in the notice to the intervenor. Apparently the intervenor was sent a letter that said the matter would be continued to today but the details would be forthcoming. And apparently there was a second letter that was sent out, but apparently was not sent to the intervenor. Perhaps you should inquire of the Staff as to the details on that. GRAHAM: Mr. Darrow? DARROW: Thank you, Mr. Chairman. Yes, that’s correct. We had sent out a letter thth after our last meeting on December 6, on December 18, informing the applicant and the intervenor of the results of the meeting, and did mention that the action would be continued to th January 19, but it did mention also that the parties would be apprised of details regarding the th continued hearing. A letter did go out on December 20, informing the applicant of the continued hearing, but it did not list the intervenor. So that was an oversight on our part. GRAHAM: Are all the parties here today? DARROW: I do not see the intervenor present today. GRAHAM: Thank you. Mr. Watanabe? WATANABE: In light of that new information, and since the Rules don’t determine exactly what happens beyond the sixty days, I would suggest that we continue this. Especially since we only have five Commissioners here, and it would take a unanimous vote to get this done. That way we could at least have the intervenor present. ALAMEDA: Mr. Chair? GRAHAM: Yes? EXHIBIT A 6 ALAMEDA: I agree with Commissioner Watanabe. If we don’t continue, there could be possible repercussions on the other end that would actually present some legal challenges, so I think the safe route would be to continue it and extended it past thesixty days. GRAHAM: Commissioner Iwashita? IWASHITA: I’m looking at Rule 4-24; I think it’s the applicable rule. It talks about ninety days as the amount of time, when the time at the closing of the hearing. So but time constraint I don’t think is that pressing right now cause I think we have a little more time. I agree that this should be continued to next West Hawaii meeting. GRAHAM: Well, it certainly sounds like the Commission is in favor of continuing. I hate to have the testifiers come here today and the applicants come here today, and not really get into the meat of the matter at all. Commissioner Watanabe? WATANABE: Yes. Testifiers were allowed to testify, so it will be a matter of the record, you know, in the minutes. So I don’t think the testifiers themselves have lost anything, especially in light of we are not having reopened the contested case hearing, so you know, all they were afforded was their opportunity to testify, that’s it. We didn’t introduce any new evidence. So I don’t think there is a real issue there, although I’m sure they are probably anxious to hear a decision. GRAHAM: Yeah, I also just was thinking like it would be nice to hear from the applicant and the Department on this at this point in time, but if the intervenor is not here, it’s probably not appropriate to hear from them. So maybe we are just going to take a vote and then hear on motion to continue, but first I want to hear from Mr. Torigoe. TORIGOE: Thank you, Mr. Chairman. I just want to comment quickly on a couple of things. One is, as Commissioner Iwashita has correctly pointed out, Rule 4 which is your Contested Case Rule provides for ninety days. Rule 4-3 says if there is a conflict between Rule 4 and any other rule that Rule 4 shall be applied. So, and it’s probably safe to say that if you do something within ninety days here, you are probably, probably okay. And another possibility would be trying to contact the intervenor to see if, you know, if he is free and would like to come down here today, we can continue the matter for consideration later on in the day. But it’s certainly within your discretion to continue the matter at this point. GRAHAM: Thank you. I think since this was a split vote last time and that maybe the Commission in general has conflicting thoughts and it’s a difficult decision, it’s also probably unlikely that we would have a five-to-zero vote today anyway, so maybe it works out fine for everybody that we do continue it and hopefully have more Commissioners present in the future. That’s just my personal thoughts. Could I have a motion at this time? Commissioner Iwashita? IWASHITA: I move that the Special Permit application SPP 06-000039, Michael F. Martinage and Greg Nunn, that this matter be continued to the next regularly scheduled West Hawaii meeting. GRAHAM: Thank you. Can I have a second? EXHIBIT A 7 ALAMEDA: Second. GRAHAM: So we have a motion by Commissioner Iwashita, seconded and we can take discussion right now. Anyone like to make any discussion on this? All right. Mr. Darrow, could you take a roll call? DARROW: Thank you, Mr. Chairman. Again, we apologize for the mistake of not notifying the intervenor; we apologize to the Commissioners, as well as to the applicants. With that, I will take the roll call. The motion is to continue the matter until the next West Hawaii Planning Commission meeting. Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner McCall? MCCALL: Aye. DARROW: Commissioner Watanabe? WATANABE: Aye. DARROW: And Mr. Chairman? GRAHAM: Aye. DARROW: The motion passes, five to zero. GRAHAM: All right, thank you. So it will be our next scheduled West Hawaii meeting. And thank you folks for coming today. We appreciate your testimony. The discussion ended at 9:40 a.m. Respectfully submitted, Noriko Sauer West Hawaii Secretary EXHIBIT A 8