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HomeMy WebLinkAbout2005-01-21 TIMMING PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JANUARY 21, 2005 A regularly advertised hearing on the application of was called ROD IMMING (SMA 03-019) to order at 2:28 p.m. in the King Kamehameha's Kona Beach Hotel, Kamakahonu Ballroom, 75-5660 Palani Road, Kailua-Kona, Hawaii, with First Vice-Chairperson Hannah Springer presiding. PRESENT:William GrahamABSENT & EXCUSED:Fred Galdones Jeffrey McCallC. Kimo Alameda Rene€ SŸiracusaEarl Fujikawa FrancisSmith Hannah Springer Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler representing Department of Public Works And approximately 14 people from the public in attendance APPLICANT: ROD IMMING (SMA 03-019) Continued hearing, including discussions on the Hearing Officer's proposed Findings of Fact, Conclusions of Law, and Recommendations, and any exceptions and/or oral arguments of the parties, on the application for a Special Management Area (SMA) Use Permit to allow the development of fourteen (14) condominium units within two 3-story buildings and a 2-story building, and related improvements. The property is located at the northwest corner of Kuakini th Highway and Seaview Circle, Kona Seaview Lots Subdivision, Holualoa 4, North Kona, Hawaii, TMK: 7-7-15:71 and 73. SPRINGER:We are now at agenda Item No. 3. The applicant is Rod Imming (SMA 03-019). This is a continued hearing, including discussions on the Hearing Officer's proposed Findings of Fact, Conclusions of Law, and Recommendations, and any exceptions and/or oral arguments of the parties, on the application for a Special Management Area (SMA) Use Permit to allow the development of fourteen (14) condominium units within two 3-story buildings and a 2-story building, and related improvements. The property is located at the northwest corner of th Kuakini Highway and Seaview Circle, Kona Seaview Lots Subdivision, Holualoa 4, North Kona,Hawaii,TMK:7-7-15:71and73. Willtheapplicantandortheirrepresentativepleasecomeforward.Goodafternoon,gentlemen. Will the applicant and their representative, and anyone who has signed up to testify or wishing to testify on this agenda item, please raise your right hand so I may swear you in. We have someone from the audience, Francis Young? Jung? JUNG:Jung, Madam Chairman. SPRINGER:Okay, thank you. Do you swear or affirm to tell the truth on this matter now before the HawaiŸi County Planning Commission. TESTIFIERS:We do. SPRINGER:Thank you. Mr. Jung, did you receive the Planning Department€s background report and recommendation? JUNG:Yes, I did, Madam Chairperson. SPRINGER:Do you have any comments to make at this time? JUNG:Yes, Madam Chairperson, Members of the Commission. First of all, thankyouforcomingtoKonatobewithustoday. SPRINGER:Ofcourse. JUNG:The comments that we have made are in our written submission, which we have filed with the Commission, and I believe they€ve been distributed. We have no intent to prolong the testimony. We know you have a very busy schedule today. I would only say that we agree with the recommendations of the hearing officer. Only one clarification with respect to the findings of fact, and that is that the applicant Mr. Rod Imming who is here today along with Phil Davis is the owner of the property. The findings of fact from the hearings officer indicated that he was the developer; Mr. Topliss was still the owner. The transfer of the property actually took place in May of 2004 and Mr. Imming is the owner. Other than that our comments are all in writing placed before the Commission. And we€d be pleased to answer any questions concerning the development or the concerns of the Commission that you choose to place before us at this time. Thank you, Madam Chairperson. SPRINGER:You€re welcome. Thank you. Commissioners, do you have any questions of Mr. Jung or his colleagues at the table at this time? Commissioner Graham. GRAHAM:The intervenor filed a contested case. It seemed like one of his biggest considerations was his concern about damage during construction. And the last time around when his condominium project suffered some damage with a different development nearby, which he was not able to certify, was caused by that additional construction. Myself in my heart I feel like we kind of owe it to him to have a way to substantiate if any damage should come about this time. So I€m wondering, I know Mr. Imming you have a civil engineering degree and all like that, if you folks have some suggestion for how the County or whether the method that might be for him to sort of have a before and after so that he can kind of certify that any damage that comes really came about from what went on next door and was not there previously. I just feel just like because of the history, which he has spoken of, it would be really nice if we could kind of help make that come about for himin a way that he can feel guaranteed that if there is damage he will be able to ascertain it and recover from it. JUNG:Thank you, Mr. Graham. On the issue of damages, generally that is a legal question and some of the procedures that are adopted to establish damages would also be available to him under the law, I am the attorney representing Mr. Imming the applicant, and that would be that he would have an inspection of his own property prior to the commencement of construction, and then if the property suffered any damage he could then show that the damage took place subsequent to the beginning of construction for the applicant€s project; and, at that point, you would show a cause and effect relationship. Also I believe the County has also imposed some restrictions as far as, and cautions with respect to the building of the project to establish-, first of all, to prevent the likelihood of any such occurrence and the County has rigorous procedures to see that that doesn€t happen. But beyond that, of course, as far as the causeandeffectMr.MessickwhoIbelieveistheintervenorwouldhaveaninspectiondoneof his property, perhaps an engineering review; and then should any damage occur afterwards, if it€s established that it was a result of construction, as adverse to an earthquake or a tsunami or anything like that, then that would be legally how such damages could be established. But I think that the County itself has its own regulations on how to, to prevent and how to monitor any such damages; and, of course, we would apply, not only apply but we would concur with any regulations that the County has already established. Beyond that though perhaps I could have Mr. Davis to comment, the architect. DAVIS:I agree with Frank completely on this. There are also federal standards by OSHA for protection of properties, protection of workers; and in excavation processes, that would have to be adhered to by the contracting firm we€re going to be using. GRAHAM:Yeah, well, I certainly don€t feel that, you know, we need hold you guys to doing more than what€s reasonable from your perspective. However, because to me from Mr. Messick€s testimony he did have a real problem before, and given that you€re doing a lot of excavation very close to the pool there, I think he has reasonable concern. And I don€t feel good just having that all be on his shoulders, you know, for him and his folks to put forth whatever kind of inspection money needs to be done ahead of time. Maybe they don€t know when you folks might be doing blasting or earth moving, or maybe it€s just a requirement that you report all that ahead of time, or maybe there€s a requirement that the County could have an engineer come down at that time, or something. I just feel like having read all this material if it was reasonably possible I would like to see something done to help him in that respect. DAVIS:If we were to do any blasting, which I really doubt that we would but if we were, we would have to post a notification with the County, I believe, beforehand, not only with the owner of the adjacent properties. But I highly doubt blasting on this property. GRAHAM:Yeah, I don€t even know that he spoke to blasting but the basic rock breaking kind of mechanisms that are used, you know, can really reverberate apparently. So, that€s what I have in mind. IMMING:If I might comment. We would intend to take extensive pictures of the existing property prior to any start of construction so we know what the condition of it is, you know, prior to. Your comment about the pool, our project kind of, the access road coming up daylights, what I mean, will meet natural ground about the location of the pool. Therefore, the, probably the least excavation on the property will be near the pool. GRAHAM:I see. SPRINGER:I€m sorry, gentlemen, I was remiss. I need to have, you€ve all been sworn in. I need your names and residential addresses please. JUNG:Yes, thank you, Madam Chairperson. Francis Jung, I€m with the law firm of Jung and Basser at 75-170 Hualalai Road, Suite D-214, Kailua-Kona; and I€m appearing today as counsel to Mr. Imming. DAVIS:Phil Davis, Phil A. Davis Architect, 73-1408 Kaiminani Drive. SPRINGER:Thank you. And Mr. Imming? IMMING:Rod Imming, 75-346 Hualalai Road, Apartment B-105, Kailua-Kona, Hawaii96740. SPRINGER:Thank you, gentlemen. I€m sorry, Commissioner Graham, to have interrupted. Follow-up? GRAHAM:I just might ask Roy. Yeah, I guess you understand where I€m coming from. Is there any way the County can facilitate anything for the neighbors so that, you know, they feel protected, that they will be compensated if there€s any damage and not have to put out a whole bunch of money up front just to sort of certify their present condition? Is there anything that can be done that€s reasonable? TAKEMOTO:I appreciate where you€re coming from. I€m not sure that€s within the SMA purview as a protected coastal interest. And I think there is adequate private protections. Maybe what we need to do is just make sure he knows about them, what he should be doing and what remedies he can pursue should he incur any damage. I€m not sure how we would provide that, I don€t know maybe in a letter as a response to him as the outcome of this hearing or some other way. But we could provide that kind of maybe friendly advice. SPRINGER:Mr. Takemoto. Might that be in the form of a notice, say prior to the beginning of construction and alerting him of what procedure he might follow to file an accounting of any damages? TAKEMOTO:Notice of start of construction? SPRINGER:Yes. TAKEMOTO:Mm. Who would be providing this notice? You mean they would-? SPRINGER:The developer. TAKEMOTO:Is that required under the building permit? SPRINGER:No. TAKEMOTO:No. So you were thinking of including it as a condition that they just provide notice of start of construction to the-, to this owner? SPRINGER:And then as we€re discussing now, providing a course of action in the event of any damages, Mr. Torigoe? TORIGOE:Thank you, Madam Chairman. I think if the concern is to make sure that theintervenordoesn€tmisstheboatinmakingclaimsfordamages,itseemslikeitwouldbea good idea or it would be a plausible idea to have a condition that requires the developer to give the intervenor say two weeks€ notice of the start of any excavation work so that they know that there€s something coming. And then they can then take whatever steps are necessary to document the condition of the property before the excavation occurs, and preserve whatever evidence they need in the event that they need to make a claim. I don€t know that it would be prudent for the Commission to try to lay out any particular course of claims action after that. You know, I wouldn€t want the Commission to be in the position of having given some form of legal advice, or being liable for that. SPRINGER:Thank you for that, Mr. Torigoe. So, there might be a condition of notification, two weeks notification prior to the beginning of construction, and that would be the recommended course of action to document the condition of adjacent properties, and that would be the sufficient guidance that would come via the condition. TORIGOE:If that much. SPRINGER:Okay, thank you. DAVIS:If I may. We will take every precaution to make sure that the adjacent properties are monitored to make sure no damage occurs. When I meet with the contractors this will be one of the issues that we€ll bring up as a major issue that in the field they€ll be able to observe what€s going on with the adjacent properties; and if there€s any potential for any damage, that they€ll have their eye on it. SPRINGER:Thank you, Mr. Jung. JUNG:In any event the two weeks€ notice would be okay. SPRINGER:Thank you, sir. Commissioner Siracusa? SIRACUSA:Well, I€m not sure if this is the point of which I should say anything. You know, I know that we have a housing shortage here. I also know that we have massive traffic problems. And the more we permit development, the more traffic problems we€re going to have. But this doesn€t look to melike, I mean, what our housing needs are, are low and middle income. And I€m looking at the transcript, page 29, where Mr. Imming stated that the, it would be someplace between $30,000- $300,000 and half a million for a unit; and so I don€t see that as helping our housing problem, and I do see it as exacerbating our traffic problems. I€m wondering if you would like to address that apparent conflict. JUNG:I would-, Madam Chairman? SPRINGER: Mr. Jung. JUNG:MadamCommissioner,Ifullyunderstandwhatyou€resaying.Asidefrom being a practicing attorney I€m the Big Island Director for the Housing Community Development Corporation of Hawaii. You€ve addressed a very, very serious problem that should be addressed. The inventory- present inventory on the Big Island with respect to houses below, 250,000 and below- I believe is now zero. The inventory for housing between 250,000 and 500,000 is less than a hundred. We have a problem in both areas. Anytime you increase the density or the number of residence in a fixed community that will also exacerbate traffic to the extent that you have a- one more car on the road. My understanding is this, though, that pursuant to the Topliss case and the recommendations of the Planning Department, that the traffic for fourteen units will be insignificant with respect to the standards required for approval of the project. If I could say to you that it would not at all increase traffic that would not be true. Taking that into consideration though and the insubstantial insignificant difference for fourteen units and the need also for housing between $250,000 and $500,000 bracket, I would say that this is a project that is necessary and not one under the circumstances in which you can both have reduced traffic and affordable housing, and that is truly regrettable. Your concerns are well taken and that€s a straight answer. Thank you. SPRINGER:Commissioner Siracusa, have you had the benefit of a discussion on the Topliss decision? SIRACUSA:No, cause I was not at the last Kona meeting. SPRINGER:I didn€t think so. Mr. Torigoe, can you just summarize Topliss decision for us. TORIGOE:Thank you, Madam Chairman, I€ll try. The Topliss decision basically dealt with an SMA permit application in which the Supreme Court or the Intermediate Court of Appeals stated that for SMA permits an increase in traffic is normally not something that is relevant to the SMA factors. It€s only if the traffic increase rises to the level where it affects the environment as defined in the SMA statute. For instance, if it ends up basically preventing access to the ocean environment or some other very weighty impact that would affect the environment, it€s only under those kinds of conditions that traffic becomes relevant to an SMA permit. And then, if it is relevant, then the Commission also has to look at whether there are conditions that can be applied to mitigate that impact, rather than just rejecting the permit out of hand. So, basically, traffic should not be an issue on an SMA permit unless it is a real impact on the environment; and then you need to see if you can mitigate that impact by conditions. SIRACUSA:And increased density, as an issue? TORIGOE:I would defer that. SPRINGER:Mr. Takemoto. TAKEMOTO:Well,notnecessarilydensity,you€rereferringtoaffordablehousing, right? And, there is a finding in the hearings officer€s report, it€s Number 54. That basically, if I can summarize, that this property was already zoned and affordable housing requirements are imposed at the rezoning stage. And so, basically, through an SMA it€s not appropriate to impose affordable housing requirements. The way, I don€t know if you can rough topic, but the way Finding 54 is written now, the Director had some problems with it and he wanted it clarified. Is it appropriate now for me to read the Director€s desired amendment to this finding? TORIGOE:I suppose. SPRINGER:Mr. Torigoe? TORIGOE:Yeah, go ahead. TAKEMOTO:Okay, so it would, presently reads, Although Messick claims that units within the development will not be affordable for the local market,‚ and here€s where the change begins, we would strike everything after that comma and replace it with, the zoning of the subject property preceded affordable housing requirements. Hence there are no affordable housing requirements on this project.‚ And, The SMA law does not authorize adding a new affordable housing condition to property already zoned and without this requirement.‚ SIRACUSA:So you€re saying it€s grandfathered? TAKEMOTO:Yes. SPRINGER:And that€s an amendment, recommended amendment to what section? TAKEMOTO:Finding 54. SPRINGER:Thank you. Other Commissioners, any discussion? If the Commissioners have no further questions for the applicant and his representative, I would like to, again, ask if there€s anyone in the audience who would like to testify. MESSICK:Ralph Messick. SPRINGER:Mr. Messick, perhaps if you could come up, we€ll swear you in and then we can get your comments on the record. Thank you, sir. If you could please raise your right hand. And do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? MESSICK:I do. SPRINGER:Thank you. If you could please give us your name and address for the record. MESSICK:RalphMessick.Myaddressis77-6585SeaviewCircle,Number201, Kailua-Kona. SPRINGER:Thank you, sir. And your written comments were circulated to us. Do you care you make a comment at this time? MESSICK:No, not really, just so that the petitions are submitted and read by the Commissioners. SPRINGER:Thank you. So you€re standing by your written testimony; and thank you for coming forward to the table. Commissioners, do you have any questions to Mr. Messick based on what we have before us? Commissioner Graham. GRAHAM:Mr. Messick, I just wanted to put forth my understanding from the written petitions we got today and all. The gist of today€s petitions relate to another issue that has been brought up throughout this proceeding, that is the parking spaces being available. And I think as far as the SMA Shoreline Management Area permit that we€re dealing with today, it€s not really on point for the thrust of what this whole Shoreline Management Area Act is about. I know it could be somewhat remedied for you if like the development was fewer units and then the same number of parking places could, within the property could handle a lot better the extra need. But it doesn€t feel like it€s in our jurisdiction on a shoreline management area permit to try to push anything in that direction. So I personally don€t feel like there€s really much I can take in the way of action to relate to that very understood and recognized problem that you speak of. MESSICK:Correct me if I€m incorrect. Is it Shoreline Management Area or is it Special Management Area? SPRINGER:Mr. Takemoto? TAKEMOTO:It€s Special Management Area that relates to the shoreline. MESSICK:If I might quote the Rule 9. It says, A substantial adverse effect is determined by specific circumstances of the proposed use, activity or operation.‚ I think that parking substantially affects the economic and social welfare of the activities of the community, county and state regarding the people that live in that particular area. It also involves secondary impacts such as population changes, effects on public facilities of which parking is one. And it has cumulatively, has considerable adverse effect upon the environment or involves a commitment for larger, I€m trying to see which one I was looking at in particular -. But I think all of those items can be addressed with the parking problem. SPRINGER:Mr. Takemoto, could you respond to Mr. Messick€s comments on this section of the rules and how the Planning Department applies them and offers recommendations. TAKEMOTO:Okay,Mr.Messick,IthinkthisToplisscourtdecisionthatwe,counsel briefed us just recently applies here because parking goes like traffic, beyond the objectives and policies of the special management area permit. This was, this whole thing was designed to protect coastal resources. So we€re getting into that kind of out of bounds area. MESSICK:I don€t believe parking is traffic. You know, parking, the effect of this additional demand for on-street parking that doesn€t exist means that people that need that on- street parking are going to be parking blocks away. They have to walk -. TAKEMOTO:Yeah, but what coastal resource is being impacted? MESSICK:No comment. SPRINGER:Thank you, Mr. Messick. Are there any other questions for Mr. Messick from the Commissioners? Mr. Messick, Mr.Torigoe has queried whether or not you filed any exceptions on the Hearings Officer€s report. We have the petition before us. MESSICK:None. SPRINGER:Mr. Torigoe, do you have any follow up questions? TORIGOE:None. SPRINGER:Thank you, sir. Members, if there are no further questions for discussion with Mr. Messick, thank you for coming forward to the table, sir. Commissioners, we€re at the point in our discussion where we can reverse, we can modify the, what is before us. Is there any intent to do so? We already have from the Planning Director a recommendation for amendment to Finding 54. TAKEMOTO:If I may, there is one more. SPRINGER:Please, Mr. Takemoto. TAKEMOTO:This would beFinding No. 40. It starts on page 8, but there€s no change to No. 40 on page 8. But let me just read it,There is not a reasonable relationship or nexus between the development proposed,‚ and the, and this is where the change would occur,andthe interest protected by the SMA Law,‚ and just clarification on the bases for establishing nexus. SPRINGER:So is that 40 or 41? TAKEMOTO:It€s to 40. SPRINGER:Okay.Andthat€stheportionthat€sfoundonpage9? TAKEMOTO:Yes. SPRINGER:Couldyourepeatthat,please. TAKEMOTO:Okay,I€lljustreadFinding40asrevised,Thereisnotareasonable relationship or nexus between the development proposed and the interest protected by the SMA Law.‚ And the rest of that second sentence remains unchanged. SPRINGER:Thank you, Mr. Takemoto. Commissioners, do you have any amendments that you wish to offer? GRAHAM:Try waiting -. SPRINGER:I€m sorry - ? GRAHAM:I just was going to ask that in the appropriate place Mr. Torigoe€s suggestion of two weeks advanced notice of any earthwork be provided to the neighboring condominium owners there. SPRINGER:Where might that be properly placed, Mr. Torigoe, or Mr. Takemoto? TAKEMOTO:Towards the end there€s the Hearing Officer€s recommendation where granted subject to the following conditions,‚ and we can put it as one of the conditions there. TORIGOE:Maybe 10 or something? TAKEMOTO:Maybe just before 11 because after 11 it gets kind of boilerplate. SIRACUSA:Make it 55? TAKEMOTO:Where are you? GRAHAM:Just before Condition 6 would be good, maybe, since 6 talks about construction. TAKEMOTO:Okay, okay, very good. SPRINGER:So that would be a new condition and all subsequent conditions would be renumbered? TAKEMOTO:Yeah. SPRINGER:So we€re inserting a new Condition 6? TAKEMOTO:Okay. GRAHAM:Yes-. SPRINGER:Isthatcorrect? GRAHAM:AnewCondition6. SPRINGER:Commissioner Graham. GRAHAM:I also wanted to comment on the one that Mr. Takemoto changed a short while ago about interest of the SMA Law. It does seem like the second sentence doesn€t follow since the word is being removed, or used in the second sentence. TAKEMOTO:In finding 40? GRAHAM:Pardon? Finding, yeah, 50, number 40. Cause you say, These improvements,‚ and These improvements‚ have been disappeared already from the first sentence. Maybe we can just get rid of that second sentence, huh? The way you read the first sentence to, as you replaced the word improvements‚ with interest‚ and then in the second sentence it refers to These improvements,‚ but These improvements‚ doesn€t really have anything to refer to anymore. TAKEMOTO:No, actually, thank you for catching that. I think it should read, There is not a relationship or nexus between the improvements requested by DPW and the interest protected by the SMA Law.‚ GRAHAM:Okay. So it should be an insertion what you said first -? TAKEMOTO:Yes. GRAHAM:Not a replacement? TAKEMOTO: Yes. SIRACUSA:Right, not a deletion. GRAHAM:Okay. TAKEMOTO:So it would read There is not a relationship or nexus between the improvements requested by DPW for Seaview Circleand the interest protected by the SMA Law.‚ GRAHAM:Okay. TAKEMOTO:Andthenthesecondsentencecanstay. GRAHAM:Okay. TAKEMOTO:Yeah,good.Thankyou. SPRINGER:Commissioners,arethereanyfurtheramendments,additions,deletions? Mr. Jung, you€ve heard our discussion here. We€ve been discussing amendments to Finding 40, Finding 54 and insertion of a new Condition 6. Do you have any comment? JUNG:They would all seem acceptable, your Madam Chairperson. SPRINGER:Thank you, sir. Members, I think we€re at a point where we€re ready to make and vote on a motion on this matter to, the motion would be to accept the Findings and Conclusions as amended. Mr. Torigoe, is that -? TORIGOE:The rules basically at this point allows you to proceed to reverse, modify or adopt the recommendations of the Hearings Officer. SPRINGER:So they would be with modifications, would that be the proper language? TORIGOE:Yes. The motion could, if you intend to adopt it with modifications, that€s what the motion would be. SPRINGER:We€ve heard Mr. Torigoe€s guidance for us. Members, do we, is someone prepared to make a motion? MCCALL:I€ll make a stab at it. SPRINGER:Okay, thank you, Commissioner McCall. MCCALL:In the matter of the SMA Permit to allow the development -. TORIGOE:Use your microphone. MCCALL:In the matter of the SMA Permit for, that€s TMK: 7-7-015:071 and 073, SMA Permit No. 03-019, I move that we adopt the Hearing Officer€s Report with the additions and the changes that were just discussed. SPRINGER:And those would be the modifications to Finding 40, Finding 54, and the insertion of a new Condition 6? MCCALL:That€s correct. SPRINGER:Thank you. Is there a second? GRAHAM:Second. SPRINGER:Thankyou.IthasbeenmovedbyCommissionerMcCallandsecondedby Commissioner Graham to accept, to adopt the Findings and Conclusions of the Hearing Officer as modified. Is there any discussion? Commissioner Graham? GRAHAM:I just also wanted to add into that motion what the applicant told us at the beginning that Imming is now the owner and not the, just the developer. So that was in the Hearing Officer€s Finding of Fact No. 2 under procedural background. So we need to make that change also. SPRINGER:Thank you, Commissioner Graham. Is there any further discussion? TORIGOE:So no objections to that additional change? SPRINGER:Are there any objections to the modifications? JUNG:No objections. Thank you. SPRINGER:Thank you, sir. Further discussion? Mr. Torigoe? TORIGOE:So just for the record, the last modification that Mr., Commissioner Graham suggested, I guess, none of the other Commissioners have any objection to that? SPRINGER:None. TORIGOE:Okay. SPRINGER:Commissioner Siracusa? SIRACUSA:Yeah, what would be the ramifications if I abstained? SPRINGER:Mr. Torigoe? TORIGOE:I think then we will be short of five votes again; and so we would be in the position, again, of having to look at the timeframe for taking any further action. Let€s see -. SIRACUSA:Basically, I don€t feel comfortable voting an aye but I don€t feel that I necessarily have the legal backing to vote on a no; and that€s why I€d like to just abstain. I mean, I don€t have the legal reasons that, you know, according to Topliss and all of that, I just don€t feel right about voting an aye on it; and that€s why I asked about abstention. SPRINGER:Mr. Torigoe, do you have any guidance or comments? TORIGOE:Well, only to say that I think all of you when you agreed to serve on this Commission agreed to uphold the laws and the Constitution of the State of Hawaii. And so, you know,one€spersonalfeelingshouldreallytakeorgivewaytotherequirementsofthelawin matters like this. But, of course, you know, it ultimately, you know, it€s up to you and your conscience as to how you vote. Your Rule, again, the SMA Rule says that within a reasonable time not to exceed 45 calendar days from the receipt of the Hearing Officer€s report or within a longer period as agreed to by the applicant, and I think as the Commission, as the Board, the Commission would have to agree to defer, you need to make some kind of a decision. And if you fail to render a decision or properly defer within the time of, timeframe that the request shall be considered denied. So I€m not sure what the 45-day timeframe is, where we are in that timeframe at this point. Let€s see. When was the Hearing Officer€s report received? Can someone tell us that? th SPRINGER:November 16, I believe, 2004. MCCALL:It says ten five. TORIGOE:Ten five. th GRAHAM:I got a stamp of November 24. th TORIGOE:Right, 24 of November. Okay, it would seem that we are already exhausting the 45-day time frame. Is that correct? HAYASHI:Yeah. It was received on November 24th. TORIGOE:Okay, so at this point it would seem to me that what has happened is that the, and this matter, has this matter come on the agenda since then or is this the first time? HAYASHI:No, this is the first time. TORIGOE:Okay, so it would seem that at this point the Commission had, in essence, this is the first time that the matter has come before the Commission since the hearing officer€s report was received. And so it would seem to me that at this point some kind of action needs to be taken, either to defer it for later, or to approve, or deny it. And if none of those actions can be taken, then under your rule then it has to be considered denied. SRINGER:Even if only five? TORIGOE:What do you mean only five? SPRINGER:We don€t need to have, we do not need a vote of five to deny in this case? TORIGOE;Well, if you€re unable to either approve, deny or defer at this point, then under your rule it would seem that it is considered denied. SPRINGER:Commissioner Graham. GRAHAM:Just speaking to Commissioner Siracusa, if her, not withstanding Mr. Torigoe€sremarksaboutone€sdutyasaCommissionerandresponsibilitiesandsuch,ifthere€s more time or particular information that we need to have for you to feel that you€re making the proper decision, then I think we should make time for that. But only you can tell us what it is that would help make clarity for you. SIRACUSA:Thank you. I appreciate your consideration. I don€t think the time would do it. I really wished they had, you know, like one more person here so that I would honor my conscience and abstain without affecting the process. Right now I feel like because of that I€m between the rock and a hard place; and I don€t like being put in a position where I have to yes on something that I really don€t want to see happen. But, obviously, it will go through anyway, even if it€s deferred, you know, if everyone else decides to defer, so I€ll just go along with the crowd. My question to, you know, to Corp. Counsel had been what would be the ramifications if I abstained. SPRINGER:And that has been answered to your satisfaction? SIRACUSA:Yes. SPRINGER:Commissioners, is there any further discussion? The motion is to adopt with modifications, that has been duly made and seconded. Is there any further discussion? Norman, the roll call vote, please. HAYASHI:Thank you, Madam Chair. And just to be sure, the modifications would be for Findings of Fact No. 2 that Commissioner Graham had included, Findings of Fact No. 40, Findings of Fact 54, and a new Condition 6, and all others, the numbers would be numerically renumbered. SPRINGER:That€s correct. HAYASHI:With that, Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Aye with reservations. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Madam Chair, motion carries, five-zero. SPRINGER:Thank you. You€ll be informed in writing of this decision. JUNG:Thank you, Madam Chairperson. SPRINGER:You€re welcome. Good afternoon. The discussion ended at 3:15 p.m. Respectfully submitted, Lynette Sanemitsu, West Hawaii Secretary