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HomeMy WebLinkAbout2022-01-06 Windward Exh C (PL-REZ-2021-000008) WINDWARD PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT JANUARY 6, 2022 A regularly advertised hearing on the application of AGUINALDO 4, LLC (PL-REZ-2021- 000008) was called to order at 10:48 a.m. via live stream online meeting, with Chairman Dean Au presiding. COMMISSIONERS PRESENT: Dean Au, Joseph Clarkson, Michelle Galimba, Dennis Lin, Thomas Raffipiy, John Replogle RECUSED AND EXCUSED: Gilbert Aguinaldo ALSO IN ATTENDANCE: Malia Kekai, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Jeffrey Darrow (Deputy Planning Director), Christian Kay (Planner), Alex Roy (Temporarily Assigned Planning Program Manager), and Melissa Dacayanan-Salvador (Windward Planning Commission Secretary) AGUINALDO 4, LLC (PL-REZ-2021-000008) Application for a Change of Zone from a Single-Family Residential (RS-10) zoning district to a Village Commercial-20,000 square feet(CV-20) zoning district for 1.545 acres of land. The subject property is located at 15-3070 Pahoa-Kapoho Road, on the southeast corner of its intersection with Pahoa-Kalapana Road (Highway 130), across from Pahoa High School at Kaniahiku Homesteads, Puna, Hawaii, TMK: 1-5-003:037. Secretary's Note: "—" indicates indiscernible speech due to internet/technical difficulties or simultaneous talk. AU: At this time before we move into the next agenda item let's take a break. But, before we do that, Mr. Aguinaldo did you want to say something before we get into the next agenda item. AGUINALDO: Yes, I would like to say to you, Mr. Chair, Planning Department, along with my fellow Commissioners, this next agenda item it pertains to my family. It's Aguinaldo 4, LLC. I'll be excusing from any voting for this particular agenda item. For discussion I'll be available, but during your voting and so forth I'll not be present, and I'll also mute myself from any of that portion of the discussion. AU: Okay, thank you, Commissioner Aguinaldo. so why don't we go ahead and take a 10- minute recess really quick, bathroom break and let's come back and carry on. Right now, its 10:36-10:37 and let's go to 10:48. 10:48 let's come back. Okay, thank you. Chairman An called a recess at 10:37 a.m. and called the meeting back to order at 10:48 a.m. 1 EXHIBIT C AU: Okay, is everybody back? I'd like to bring back the Thursday, January 6 h Windward Planning Commission back from recess, the time is 10:48 a.m. and I do say that we have our commissioners on. So, I'm going to go ahead and get started on. KEKAL Chair Au? AU: Yes. KEKAL I would just like to since this is kind of a unique situation. I want to get a couple clarifications before we move forward with this agenda item. The first is, is Commissioner Aguinaldo the applicant in this application? If somebody could answer that question to me. ARAI: Yes, he is. KEKAL Okay. Beforehand I need to ask my commissioners then. Does everybody feel that they can be impartial and unbiased while reviewing this application? Does anybody feel they have a problem voting on this application? Okay, I just want to make that clear, as this is kind of an issue of first impression. Commissioner Replogle did you have a question? You're unmuted. REPLOGLE: Yes. I have no doubts about Commissioner Aguinaldo, but I think and I'm not positive on this. But my feeling is that maybe he shouldn't be here while we deliberate. He should be able to answer questions or all that about it, but I don't know that he should be part of that. KEKAL Yes, I agree, I think that he is recused from this proceeding as a commissioner but he is appearing fully as an applicant. Therefore, he cannot participate in discussion and deliberations and voting for this application. So, please "—" as your fellow Commissioner for this next agenda item. Does everybody understand? Okay. CLARKSON: I just have a question. Has there been any development on the guidelines that are process for conflict of interest this last year and, if so, did those guidelines speak to this issue, yet? KEKAL Not at this time, usually this kind of thing would go before the Board of Ethics for them to make a decision on whether there be a conflict but since he's recusing and not also appear as a commissioner. I would guess that there wouldn't be a problem but again I'm not the Board of Ethics so I can't make that decision. But that would usually be the guiding force in this kind of situation. But no, for your original question there hasn't been any new developments or anything that addresses this situation in particular. CAMPBELL: May I jumped in for a moment, this is Jean Campbell in case you can't see me. Malia you were breaking up a little bit when you were telling us about the "—". I understand that Commissioner Aguinaldo is appearing as an applicant and, as such, he should be able to participate during the applicant's presentation. What I heard from Commissioner Replogle was some concern about Commissioner Aguinaldo being present during the discussion. So, could 2 EXHIBIT C you provide us with some clarity about whether or not we need Commissioner Aguinaldo to actually log out of the meeting during the discussion period. KEKAL I would say that as the applicant it's not legally required, but if it's something that would make the commissioners feel more comfortable than it would be up to Commissioner Aguinaldo on whether he decide to"—" that request or not. AU: Commissioner Replogle and applicant Aguinaldo can you put your phone on mute I think there's feedback. If you're not talking,please mute. Go ahead Commissioner Replogle. REPLOGLE: Just to be clear, my comment is not in any way questioning Mr. Aguinaldo's integrity or anything like that. It's just how we are perceived by the public, was my concern that's all. AU: Okay well for the record, actually Commissioner Galimba you want to go ahead and say something? GALIMBA: Sure, yes, I just was wondering, I mean it was mentioned of what the Board of Ethics, I mean, should we perhaps for an abundance of caution be going that route or I mean this is a little bit unusual and I have no doubts about Commissioner Aguinaldo. But again, it's what Commissioner Replogle said perception is really important in this. But I'm not clear on if the Board of Ethics is appropriate or if that's something that happens afterwards when we mess up? AU: Ms. Kekai I have a question for you. If we all individually state that we can be impartial and unbiased and make a fair decision regarding this application is that sufficient? KEKAL I think it's; I'll say this to kind of answer both Commissioner Galimba's statement and your question that usually doesn't happen, but yes, it does also happen after if something goes awry. Sufficient for this proceeding if you can be impartial, I think, but again, I will just with the caveat that conflicts of interest and such are all decided by the Board of Ethics, so I can't be the ultimate decision on that. CLARKSON: I just like to make a suggestion for the future, maybe not pertinent to this application but it might be considered that when commissioners are the applicant perhaps their application should be heard by the other Planning Commission rather than the one that they're on. Might be a little bit of protection for appearances sake anyway. REPLOGLE: That's a neat idea. KEKAL Yeah, we'll just have to see. The Charter is pretty clear about who has what and the County Code as well, so we would probably have to amend at least the rules and probably the Code and perhaps the Charter. So, I'd have to review that, but that was initially thought of, but I have to do a little more review into that we can definitely look into it. AU: So, moving forward, I think we're okay, as long as we all can individually agree that you can make a fair decision and if we feel more comfortable maybe we can have applicant 3 EXHIBIT C Aguinaldo turn off his screen or maybe when we do deliberate, he can get off because the applicant representatives Mr. Fuke and Mr. Arai are there as well. If that makes us feel more comfortable. REPLOGLE: Since I kind of brought it up, I'm comfortable with just going ahead and at the end of the day, if the Ethics Board thinks we made a mistake, then let's deal with that then. But I don't have any issue, it's the public perception only. Anyway, I say we go ahead. I'm sorry I brought it up. AU: Okay, well, I just want everybody, I want all Commissioners to understand please nod your head or thumbs up if you can be impartial and unbiased and make a fair decision. COMMISSIONERS: Acknowledged with a thumbs up. AU: Okay, 1, 2, 3, 4, 5, 6. Okay, 6 commissioners have indicated yes. So let's move on Aguinaldo 4, LLC, rezone application for a Change of Zone from a Single-Family Residential (RS 10) zoning district to a Village Commercial-20,000 square feet(CV-20) zoning district for 1.545 acres of land. The subject property is located at 15-3070 Pahoa-Kapoho Road on the southeast corner of the intersection with Pahoa-Kalapana Road (Highway 130), across from Pahoa High School at Kaniahiku Homesteads, Puna, Hawaii, TMK: 1-5-003:037. So, Mr. Kay, staff presentation please. KAY: Yes, thank you Mr. Chair give me a moment to share my screen, please. All right, can everyone see that? Great, thank you. Again, as the Chair stated, this is an application for a Change of Zone. Subject property here outlined in red is located in the Puna district of Hawaii island more specifically on the southeast corner of Pahoa-Kalapana Road or Highway 130 at Kea`au-Pahoa Road where that meets and then Pahoa-Kapoho Road Highway 132. The applicant is requesting a Change of Zone from a Single-Family Residential-10,000 square foot zoning district to a Village Commercial-20,000 square foot zoning district for the subject 1.545- acre property. The applicant reason for the request is that they secured Use Permit in 2013 to allow for the construction of a 13,520 square foot medical facility and related improvements on the property. However, while the applicant has taken steps to comply with conditions of the Use Permit, they've not constructed the permitted medical clinic due to the lava flows affecting Pahoa and Lower Puna in 2014 and 2018. Where the subject property was used as a community hub during the 2018 flow and was subsequently developed as the Pahoa Cultural Center, including the construction of four(4) community buildings under an emergency proclamation. With the lava flow subsiding and timeframes for completion of the medical clinic imminent. The applicant determined that limiting the site for only a medical facility has made its development less financially feasible and therefore more difficult to construct having the ability to entertain non-medical uses increases the financial viability of the project. If the rezone is approved the applicant will request revocation of the Use permit and proposes to develop the property in two (2)phases. The first of which will include the adaptive reuse of three (3) existing structures on the property for commercial purposes in the near term. The second phase would include the removal of the existing structures on the property and the development of a new mixed use medical retail and office complex consisting of a single story 13,520 square foot structure, 46 4 EXHIBIT C parking stalls including 2 ADA stalls and related improvements. The applicant envisions the projected uses to be approximately 70% of the structure for medical and office use with 30% targeted for retail uses. The zoning of the subject property and some of the surrounding area is Single-Family Residential-10,000 square feet as indicated by the yellow color. Other zoning in the area includes Agricultural zonings one (1) acre and five (5) acre and some other commercial both Neighborhood and Village Commercial zoning consistent with in this case the Pahoa Town core and then some multiple family residential zoning. Again, for reference you've got Highway 130 running through the slide this way and Highway 132 to the slide this way and the Pahoa Intermediate and High School are located in this area here. The subject property is within the State Land Use Urban district as indicated in pink and also consistent with the Pahoa Village Commercial area and other surrounding designation is Agricultural. The General Plan Land Use Pattern Allocation Guide map designates the subject parcel as Medium Density Urban with some other Low Density Urban and Extensive Agriculture in the area. And the Puna Community Development Plan designates the subject property within the Pahoa Regional Town Center area which is indicated here on the map in the dashed lines. Here is the applicant's site plan, this is the Phase 1 site plan I'll call it, which shows again the existing structures on the property and proposed parking and uses. There is a proposed restroom facility here as well, which the applicant has already pulled a permit for but has not been constructed yet. Again, we've got Highway 132 running on the left side of the slide Highway 130 on the right side of the slide and on this site plan, which was the latest that we receive shows the applicants proposed eight(8) foot wide pedestrian pathway running along this side of the property on the north side of the property. And here is the kind of conceptualized Phase 2 full build out again showing the location of the proposed 13,520 square foot building. Which is again going to be a mixed-use medical office and retail facility along with the associated parking and landscaping and related improvements. Here are some aerial photographs of the existing property again outlined here in yellow on the left-hand side we've got Highway 130 here, Highway 132 here. The Pahoa School complex and on the right-hand side is a more zoomed in photo showing the existing structures on the property the 3 structures here all permitted as community structures and then there is a smaller structure here along the 132 side, which is not proposed to be retained. Here's some views of the property from across Highway 130 looking toward the subject property here and here's a view of the property from across Highway 132 looking toward Pahoa town. Here's views of the existing structures on the property again the 3 main structures that are proposed to be reused in the near term and then, again the smallest structure, which I believe was permitted as kind of a ticket taken kiosk for the Pahoa Museum with the Pahoa community facility. Here's some views of the roadways in the area. Upper left is view of Highway 130 looking south the subject property here. The upper right is a view of Highway 130 looking north. Pardon me that photo should be switched this is looking north, this is looking south. In this case the properties is on the left hand side and the bottom left is a view of should say Highway 132, my apologies looking makai and a view of Highway 132 looking mauka towards Pahoa town. 5 EXHIBIT C The Planning Director is recommending a favorable recommendation be sent to the County Council on this application. Since we sent out the background and recommendation report, we received a communication from the applicant's representative on December 30''. So, a letter that you should have received indicating a request to amend Condition K, the Director's Condition K along with some exhibits. Also, in the last day or so we received an addendum to this which added an Exhibit E to that documentation. With that I'm happy to turn the time back over to the Chair and take questions at the appropriate time. AU: Any Commissioners have questions for Mr. Kay? Okay, if not, then we'll just go right into the applicant and the applicant's representatives. Can you please raise your hand so I can swear you in. Okay, do you swear or affirm to tell the truth on this matter in front of the Windward Planning Commission? AGUINALDO: I do. ARAI: I do. FUKE: I do. AU: Okay,please state your name and the town you live in. Before we do that, have you received the background recommendation from the Planning Department, and do you agree with the Planning Director's recommendations and propose conditions? FUKE: Good morning, Mr. Chairman, and members of the Commission. My name is Sidney Fuke, I'll be assisting the applicant, Commissioner Aguinaldo on this and also Daryn Arai also will be assisting with the presentation and responding to any questions. My residence address is here in Hilo, Hawaii. Do you want me to start with our presentation? AU: Yes, you can go ahead and start all 3 of you are sworn in so, anybody can speak and please go ahead. FUKE: Yes, thank you very much again Mr. Chairman and members of the Commission. Daryn Arai and I, we were kind of helping Gilbert and his family on this rezoning application. By the way, Gilbert is my favorite banana vendor at the Kino`ole Market. I see him like every Saturday to buy my bananas over there. He actually is a better banana grower than he is a commissioner in my opinion. But, yes, we did receive the staff's background report and recommendation, and we've had a chance to discuss it with Gilbert. He and his family fully concurs with one exception and that's relates to Condition K, and we'll discuss that a little bit later. Gilbert's role, Mr. Aguinaldo's role over here is specifically just to answer technical questions that either Daryn or myself may not be able to answer. He's not in a position, he will not be in a position to present the application or advocate it in one way or another,just because of the sheer appearance of conflict. Possibly if, during the deliberation if he totally recused himself by getting off on both on email and not email, but both the visual as well as the hearing portion I think that might make the Commission maybe a little bit more comfortable. The other thing I 6 EXHIBIT C kind of wanted to add on that is the fact that fortunately in this situation here the commission's role is merely recommendatory. It's a decision that the Commission will be recommending to the County Council is unlike the first application where your decision is final, so that kind of like reduces some of the I think this thing to the potential conflict issue. Having said that,just to provide some further emphasis on the application. The property received a Use permit back in 2013 for a medical facility and was explicitly designed for only for medical operation. However, we know that you had in 2014 there was an eruption and was followed again in a more major one in 2018 and that kind of like threw the plans totally off. So, in 2019 after the last 2018 lava flow, the thought was maybe to have this property be expanded in its use by creating more like a community hub. So, you had then kind of like work with the County, and they constructed 3 of the structures that you saw on the staff's map. They all received the Certificate of Occupancy but along the way, the idea was that, having the property used and restricted only to medical use was not really fulfilling in his mind and for the community. Because we know that the County had recently completed the Kilauea Recovery and Resilience Plan. So, the thought was by having a commercial zoning in that area, this property could further help implement or support the Resilience Plan that was adopted by the County for this area by providing for whole bunch of uses. So, to be able to do that, you need to have the property rezoned from Residential to Commercial and that's the reason why we're here. The first phase, he already has these structures, money's have been invested for them, so the idea was essentially just to convert those existing structures into any sort of a commercial uses that the community deems appropriate. And then, secondly, ultimately the goal is to create like a single-story structure consisting of about 13,000 square feet, that would have like multiple uses medical, commercial, so on and so forth. At the same time, because this site at one point in time was considered by the County as a transit hub. The applicant is willing to really continue the discussion with the County at the County's initiation if the County wants to use all of it or a portion of it for any transit hub or things that would help implement the Resilience Plan and the applicant is totally receptive to that. Born and raised and living in that community so his going to be doing everything he can to help out the lower Puna district. The staff's background report kind of pointed out that the properties within the General Plan Medium Density area it complies with also the policy portion of the General Plan. More critically it's consistent with the Puna CDP, especially the Pahoa Regional Town Center. In your background report, you will see an internal communication between the Long-Range division of the Planning Department to this division noting that the property would be the projected rezoning rather is consistent with the Pahoa Regional Town Center. All of the basic infrastructure are there the water, the access, the wastewater system it's all going to be complied with and specifically addressed as kind of outlined in the staff's background report and the conditions. I think the most troublesome one relates to Condition K, which calls for the requirement of curb, gutters, and sidewalk fronting the properties. The applicant has major reservations in that it for two reasons, one was that whether it would really be befitting of this area to have like this urban type of environment, urban type of infrastructure curb, gutters, and sidewalk. In an area that's very rural and, secondly, is that, in addition to the cost wise. There are like alternative ways to address the need for safe pedestrian movement in that area. And to help illustrate that point I'd 7 EXHIBIT C like to kind of now turn it over to Daryn Arai. He will kind of like discuss more in more detail of what we're just talking about and at the same time make a suggested amendment to propose Condition K. So, Darren. ARAI: Thank you Sidney. Happy New Year Chair Au and members of the Windward Planning Commission. Great to see you guys all again and thank you for your continual service. We apologize for transmitting our December 30 letter to you addressing Condition K so late. But we hope that all of the commissioners and the staff has easy access to the exhibits. Especially the exhibits that we just turned in yesterday that added a new Exhibit E. So, if it's okay, I would like to kind of go through the exhibits very quickly, one by one. So, are the commissioners able and the staff able to look at those Exhibit A thru E? KAY: Daryn, if it would be helpful, I can share those on the screen. ARAI: Oh, that would be awesome, thank you Christian. KAY: Okay,just give me one second, please. ARAI: While we're waiting for the exhibits to be loaded up, I should mention that in our December 30 letter we did offer suggested language or suggested amendments to Condition K. In order to provide the option of a 8-foot wide all weather dust free pathway within the subject property that will provide that lateral pedestrian movement along Highway 132 and to ensure that it remains available for public use the pathway would be encumbered by a non-exclusive pedestrian easement that will be non-restrictive. So, in our December 30 letter it did provide specific language on how we believe Condition K could be constructed in order to accommodate this alternative pedestrian pathway. So, as you see on the screen right now. KAY: Sorry, let me get that. ARAI: Exhibit A, little bit small perfect right there. You can see where the subject property is located at the far eastern corner of the preliminary Pahoa Regional Town Center boundaries and the boundaries are defined by the dots. The next Exhibit B, Christian thank you and this illustration better demonstrates what we were trying to convey to all of you in that the Village Center boundaries are defined by the yellow dots. As you can see this image is overlaid with County's zoning with the yellow, the browns, and the pinks located to the left of the screen within the Town Center boundaries, and that is where your urban core or Urban Center is located and that's where we assume a lot of the pedestrian movements to the applicant's property across Highway 130 will be generated. As you move to the right of the screen or right of the image, you see the subject property outlined in red, but you also note that the surrounding land to the right is all designated agricultural. So, you have much larger parcels there and we anticipate much less in a way of any pedestrian movements through the subject property from lands going to the east of Highway 132. 8 EXHIBIT C The next image exhibit Christian, thank you. So, this is looking directly at the subject property from basically the Pahoa side of Highway 130. You may note that Highway 132 is off to your left and Highway 130 continues to run off to the right. And you see where the gentleman is walking through the along the crosswalk. The crosswalks along both highways basically point toward the subject property and that is where you'd like to assume where pedestrian movement will concentrate, and then should this rezoning be approved, the commercial would be the only pedestrian attraction on this side of Highway 130. So, it does make sense to provide as much pedestrian accommodation within the subject property rather than trying to relocate or create a new pedestrian facility along Highway 132 because beyond the subject property there is no real attractive use like say additional commercial zoned lands beyond the subject property. FUKE: Excuse me Daryn. Daryn, before you move on to the next slide. What I kind of wanted to point out to the Commission is by looking at this is that you can see where all the utility poles are. To have the curb, gutters and sidewalk in that particular area would amount to having those poles kind of relocated at considerable cost and we're going to show you what the options are in in the subsequent exhibits by leaving the poles as is, and you can still accomplish that so. I'm sorry, go ahead Daryn. ARAI: Oh, no, no, thank you, thank you, I appreciate that and then, if you go to Exhibit D. Christian showed you this in his very thorough and comprehensive presentation and the red outlines the location of the proposed 8-foot pedestrian path within the subject property. That would basically utilize the existing paved area that the applicant will have to provide in order to support the proposed commercial development. So, again whether it's within Highway 132 or within the subject property, it will accomplish the same purpose, especially with the proposed amendments that we have recommended to Condition K and, finally, the last exhibit Christian. And this photograph it's just a representative of what we are trying to explain or convey through the diagrams where you have Highway 132 being shown by the travel way or the roadway off to your left of the image. The current shoulder fronting the subject property along Highway 132 being represented by the grass shoulders here. And the onsite 8-foot pedestrian pathway being considered or propose being represented by the asphalt sidewalk located to the right side of this particular image. So again, as you can see the curb, gutters and sidewalk improvements being recommended by the Planning Department would normally be constructed right up against the improved travel way. When the same functionality can be accomplished by an internal pathway as demonstrated here in this particular photo. So, with that being said, we hope that we have presented a reasonable argument on why we feel that the 8-foot pathway will ensure that public health, safety, and welfare as well as any different or deleterious effects upon public facilities will not be impacted by this proposed commercial rezoning. So, with that we stand ready to answer any questions that you may have. AU: Thank you, Mr. Arai, thank you Mr. Fuke. Any questions for the applicant? Commissioner Galimba, you had your hand raised first. GALIMBA: Thank you, so in that last picture that you showed us. There's also a drainage ditch built into the solution there and I thought that's part of the curb, gutter recommendation it's also 9 EXHIBIT C a drainage element. So, I'm wondering if there's a drainage element to your proposed solution or how you might be wanting to address drainage issues that might arise from the development. Thanks. FUKE: I can respond to that. That photograph is taken from so called what I would consider like the Waimea Bypass Road right near where the Parker Ranch headquarters is, so it's in that section. So, when they constructed that road, they had gotten some exceptions from the standard curb, gutter, and sidewalk requirement because they wanted to have the ambience more like in keeping with area. So, they had to address specifically the drainage question, so what you just seen, what you saw in that photo is of course like a swell, a drainage swell. In this particular situation and that's why I kind of wanted to point out to the existing situation where there would not be any improvements to the highway portion so, understandably, they would not be any need to have added drainage improvements in that area. The concept was to have like the walkway being incorporated all within the applicant's property. So essentially no new improvements to the roadway section just visualize like you're going to have like an 8-foot-wide path constructed and that would accomplish the same thing as what you saw in the Parker Ranch situation, the Waimea situation. ARAI: Sorry, I should note that if the pathway is within the applicant's property there's also part of the proposed parking lot and driveway within the commercial development. County normally will require drainage improvements within the subject property in order to prevent any drainage flows from going to adjoining properties or onto the roadway. FUKE: Yeah, related to that is that is part of the Plan Approval requirement, before the property can actually be occupied. You need to have a site drainage plan that's approved by the Department of Public Works. The site drainage plan has to address all of the existing as well as proposed improvements on the property and they have to be implemented in conjunction with the development or improvement of the land. AU: Sorry to interrupt, but I do see a representative from the Department of Public Works. Ms. Matsumoto would you like speak, I would have to swear you in though. So, sorry Commissioners, can we hear Ms. Matsumoto first before you move on with your question so, can you please raise your right hand. Do you affirm to tell the truth in front of the Windward Planning Commission today? MATSUMOTO: I do. AU: Okay, thank you very much, so I guess my question to you is, can you please address Mr. Fuke and Mr. Arai's request to amend Condition K. MATSUMOTO: So, basically, that curb, gutter, and sidewalk that's a standard comment based on the commercial Change of Zone. This is the same comment we made for when they applied back in 2012 and withdrew that application. It was also included on the Use permit so we're sticking with the same comment, and nothing has changed. Regarding the proposed alternate that they're recommending that's a little bit different because, I think it's Ala `Ohi`a. That one the County is maintaining based on a grant of easement but within the Waimea subdivision the 10 EXHIBIT C Lualai Estates. The community is actually is responsible for the maintenance of that shoulder area. So, that's why that there's that open Swale with on walking path. It's not a standard for the County. We either recommend paved shoulders and swales or concrete curb gutter. If you do decide to go and allow them this alternate path within private property, we don't have any jurisdiction. We do recommend that the path be made out of something permanent like AC or concrete and if it's going to be used by the public, it should also meet the ADA requirements. We want to ensure that we don't have to bear the burden of maintenance or any liability, so we would want to see any of the easement documentation written up before it gets recorded. Do you have any questions for me? AU: Commissioner Clarkson does have a question, please go ahead. CLARKSON: I'm just wondering what in reference to Commissioner Galimba's concerns about drainage. Are there dry wells or other road drainage structures near that intersection? MATSUMOTO: I don't believe there's any roadside dry wells. There may be a drywall in the private property as proposed in their development plan. CLARKSON: No, I'm not talking about within property but— MATSUMOTO: So, there's none on the shoulder area. CLARKSON: And no continuing drainage issues with that? MATSUMOTO: None that I'm aware of. CLARKSON: Okay, thank you. AU: Commissioner Lin, did you have a question? LIN: Yeah, it's really more for the applicant and the applicant's representatives. If you were to comply with Ms. Matsumoto's conditions of having an ADA and the easement document and all that. Is that something that you guys would be okay with or is that something that you are against? ARAI: Well, I think the request is, sorry. FUKE: Go ahead, go ahead Daryn. ARAI: Sorry. I love this cooperative thing, but sometimes it creates complications, so I don't want to talk over the Master so anyway. But anyway, I think it's totally reasonable, I mean that is the whole point on why it's been proposed and when you really think about it, this is a commercial property right, I mean, sorry. We're hoping it's a commercial property and along with commercial property you have basic requirements like, for example, accessible parking, accessible pathways into the stores. There are accessibility key requirements all over the place, and I think by offering this alternative it would be no different, we would have to meet those 11 EXHIBIT C particular standards that we are doing, we will pursue it. I don't know if Sidney wanted to add that. FUKE: The short answer is yes, Commissioner Lin. Having it ADA compliant and having the appropriate public access easement in running that to the applicant property, subject to County review and approval of the easement document is totally acceptable. AU: Commissioner Clarkson? CLARKSON: Yes, I just have another question for Ms. Matsumoto from DPW related to the utilities on the presumably on the County right-of-way and is there even room there was discussion earlier about having to move all the utility infrastructure in order to create curb, gutter, and sidewalk. Is there actually room between the utility poles and the paved for a standard curb, gutter sidewalk or, in your opinion, would the utilities have to be moved toward the property line to create that room? MATSUMOTO: I didn't see any drawing with any measurements. Our current standard is to have the back of the utility pole one foot away from the back of the property line. So, I'm not too sure if there's enough if it's already there. Kind of looked like it was based on some of those concrete bumpers. The minimum for ADA is 3 feet, so I mean it looks like it would be enough. It depends on the standard requirement, whether we would allow it to just meet the 36 or ask them to move it back to the 1 foot. It would actually have to deal with our discussion with HELCO regarding their infrastructure there because depending on the pole size and the amount of tension we may not want to move any of the poles until we can move the entire whole row. CLARKSON: Thank you. MATSUMOTO: Sorry. AU: Okay. MATSUMOTO: Chair, can I make one other statement? AU: Yes. MATSUMOTO: I forgot to mention. A lot of these are coming up where DPW is making the recommendation for curb, gutter, and sidewalk and I understand it's a huge cost to the applicant and not just with this one, but all the other ones that we've reviewed. And it's hard to envision to right. You want us to put a sidewalk in the middle of where there's no other sidewalks, so we understand that as well. In another Change of Zone, the planning I think, was approved, so that the owner would pay for the improvement at the time the County did come in and do the improvements throughout that whole block. So, I mean that is another option as well and it's something we feel that it's a reasonable for the Department of Public Works and for the applicant. It's just harder if the applicant sells it to somebody else and the County comes in 10 years later, now the new owner has to bear that burden of the cost and hopefully, they are aware of it at the time as well of purchase. That's it, thank you. 12 EXHIBIT C AU: Thank you, Ms. Matsumoto. Commissioners do you have any more questions for staff, DPW or the applicant? If not, oh Commissioner Raffipiy question? RAFFIPIY: Not a question just a comment. I kind of familiar with the area, I frequent that road will work sometimes and as you can see, if you go with curb, gutter going down kind of useless common sense. You go down this it's just going to be terminated at the end of the property or somewhere. I've seen one incident in Kona, where there was something like this that the cub, the sidewalk just go goes to a certain area and just abruptly stop. Because you cannot continue that sidewalk and it actually became an issue for the residents nearby with the sidewalk coming down and it just abruptly stopped. So, I understand DPW's requirement for commercial zoning you got to have all of that. But I think, in this case, you might have to use a little common sense. This is probably what they are proposing, it may be a good alternate for now, but I don't know what the plan is for that area in 45-50 years from now. So, but I just want to say that for now, I can see this as probably a sensible ultimate an option. Thank you. AU: Thank you Commissioner Raffipiy. Any more questions if we can stick to questions and then we can go into discussion because we probably all have a few things to say. Commissioners, any questions to the applicant or staff? No, okay well I do see the applicant. Mr. Aguinaldo do you want to say a few words on behalf of your application? AGUINALDO: Yes, I do. Aloha fellow Commissioners and Mr. Chair. My name is Gilbert Aguinaldo. I born and raised in the Pahoa going for 50 years now. I was born in Pahoa town, grew up in my town during the sugar cane era where my dad retired from Puna Sugar. I've seen a lot, where the Lava Museum that is presently next to Kaleo's used to be my house. So, growing up as a farm boy in the sugar plantation era we acquired that piece of property, as indicated on my application. That teardrop property was basically more than that. The State took a portion of our property that's where I was left with that 1.5 acre. It's within my family from before I graduated from Pahoa High School and I did put up some structures there to benefit and better my community, as a member of my community and also in Pahoa. My facility currently, I've donated my time and effort to my community during the lava flows to help them utilize to bring comfort while the loss of their home or they cannot go back to their home in Kapoho and in Leilani. And I also currently through this pandemic allowed medical firms to do their COVID testing and vaccination. Where in my heart growing up in Pahoa is always to give aloha that means sharing a lot of the deep things pertaining to our property. But anyhow, thank you all. AU: Thank you, Mr. Aguinaldo. If we have no more questions for the applicant or staff. Oh, Mr. Fuke would you like to say a few words? FUKE: Yeah, if the Commission is willing, I think in Mr. Arai's letter to the department he had like a recommended language that would accomplish what we're requesting. I think the only added suggestion we would have is to incorporate I think what Ms. Matsumoto said about the ADA compliant portion and then that would be a very quick fix to the proposed amendment that was suggested in Mr. Arai's letter. 13 EXHIBIT C AU: Okay, thank you Mr. Fuke. So, I'm ready to entertain a motion? LIN: Chair, I'd like to make a motion. AU: Go ahead Commissioner Lin. LIN: I move that a favorable recommendation be forwarded to the County Council on the application for a Change of Zone, Docket No. REZ 2021-008, based on the Planning Director's recommendation. But I'd like to make I guess a couple of changes to the conditions based off of our discussion today. I don't know what the language would be but, can it be subject to whatever DPW, and the Planning Department comes up with. AU: Mr. Kay, you can go ahead and help him with the motion, please. LIN: Yes. KAY: Sure if it's appropriate right now. The department had a few thoughts of proposed changes if we saw that the Commission was going to be amenable to a change of that condition. So, if I can share it on the screen quickly. AU: Yes. KAY: Give me one moment please. AU: So, we currently have the motion on the floor from Commissioner Lin to approve the rezone with amendments to Condition K, and that is stated on and after this we will need a second. KAY: Sure. Do you want to get the second first before we start? AU: No, I think we should state the motion first and if it gets seconded. KAY: Okay if this is acceptable to the Commission and to the applicant. It's basically an amendment to add an ADA compliant foregoing minimum 8-foot-wide all-weather dust free. We wanted to clarify paved instead of all-weather dust free that's what's proposed on the site plan. So, all the proposed changes that we have are in red. After public access easement meeting with the approval of the Planning Director in consultation with the Department of Public Works which should address the other question or the other thing that was brought up. So, I'm open to any thoughts on this language from the Commission or the applicant if this is acceptable. AU: Commissioner Lin or the applicant or Ms. Matsumoto any comments regarding this language? LIN: I defer to the applicant if they are okay with the language. 14 EXHIBIT C ARAI: Christian, I'm sorry for whatever reason I'm not able to see the entire condition on the screen. It's truncating at the very bottom. KAY: Oh shoot, so the only changes that we're proposing Daryn are the ones in red. ARAI: Okay. KAY: Everything else came from your proposed condition change. So, talking about the easement for being allow unrestricted public access until such time as the construction of sidewalk improvements and so on. So, our proposed changes to your proposed changes are in red. ARAI: Okay. KAY: Yeah. ARAI: I don't have any problems with the proposed amended language. FUKE: Yeah, we're like the Tweedle-dee and Tweedledum of the applicant for this so, yeah, I agree with what Daryn is saying. I think that it clarifies and addresses the point about the ADA compliant and it actually goes without saying that whatever we submitted will still be subject to the approval of Planning and Public Works. So having that statement in is totally acceptable itself. My recommendation would be to go along with the proposed amendment as recommended by the staff. KAY: Commissioner Clarkson has his hand raised. AU: Go ahead Commissioner Clarkson, I don't see you, sorry. CLARKSON: Yes, I just wanted to make one suggestion if it's appropriate at this time, considering that we're amending the qualifying Commissioner Lin's motion. Based on ADA compliance standards that were relayed by Ms. Matsumoto, I think we need to retain the 8-foot width rather than allow dropping back to a 3-foot width. This will be I think more traveled than a 3-foot width would talk accommodate. So, I'm fine with the paved, but I think we should retain the 8-foot width. KAY: So, Commissioner Clarkson what I hear you saying if we changed it back to ADA compliant, minimum 8-foot-wide paved pedestrian path so on and so forth. CLARKSON: That would be my suggestion. FUKE: And the applicant would have no objection to that because that was the original representation to begin with. AU: Okay, thank you. Ms. Matsumoto any comment? Okay, well, so that is the motion on the floor. That is the amendment to Condition K. So, could I get a second? 15 EXHIBIT C CLARKSON: Second. AU: Commissioner Clarkson has seconded, so now we can go into discussion. I'll go ahead and go first. I support this motion; I think it's fair for all parties with all the issues that we discussed and that's my comments. Any other Commissioners? Oh, sorry staff, Mr. Darrow you got a concern? DARROW: If there's no other issues or questions from the Commission, I wanted to just make a comment. AU: Okay. Maybe we do to questions or any more discussions or you know what Mr. Darrow just go ahead and make your comment. DARROW: Okay, thank you. As mentioned by the applicant and the representatives, this is a unique situation, and the Commission has made a recommendation to make that adjustment in this particular situation. I just want to bring to mind to the Commission that this is a change from residential to commercial and again, it is a unique situation. Condition L, I want to bring that to light that right now what's being proposed it's not triggering a traffic impact analysis report it's just under it. In the future, as we've got to keep in mind that there are proposals, conceptual plans that are brought before the Commission and the Council, those are subject to change right. I mean and I'm not saying that this is the case in any manner, in this case, but we have to keep in mind that this will become a commercial property. It could become a McDonald's, it could become a gas station, it could become any number of uses that are allowed in that particular commercial zone. Condition L is our kind of like safety net if those proposals come into us, we'll ask for them if the uses reach to a level that it's going to require a traffic impact analysis report. The applicant or new owner, whoever will need to do a new traffic assessment or analysis report and will have to comply with recommendations made in that report. So that's where I want to just make put it on the record that, even though there's a condition now these improvements for this particular proposed project the possibility in the future of that use changing and the requirements to put in other types of improvements may change. So, I just want to acknowledge that moving forward. Thank you. AU: Thank you, Mr. Darrow. Any discussions fellow Commissioners? Okay, if not, Mr. Kay, oh sorry, Commissioner Galimba. GALIMBA: Yes, sorry, I guess, I just wanted to ask, this question is for Mr. Darrow based on your comments there. I guess, I just wanted to follow on and not sort of looking forward. Are we making sort of exceptions that could be problematic in the future with this. I guess especially Condition K. Since that's what's under consideration I'm assuming all the other conditions are sort of standard and forward looking. So, are we in your opinion, could there be problems from having made this kind of exception or maybe exception is even too strong of a word concession? 16 EXHIBIT C DARROW: I understand your question. Given the unique circumstances of this particular application and the location of this particular property almost being separated from the Village Core and connected to as the applicant represented it noted a more rural designated area. I think given the unique circumstances, I think the adjustment is and as well agreed to by DPW that it is acceptable. Ultimately, it'll be the Council's decision whether or not they feel this is appropriate, but I think we've all agreed that moving forward in this particular where we're at now with this proposal. It's acceptable, but I just again wanted to bring to light that we've seen it in the past, things change. We've had people come back in and do those traffic analysis reports and requirements being placed on them that were more significant. That required the curb, gutters, sidewalk construction with the increase in uses. So, the reason why I'm saying it is because we have it as a condition. Right now, that they can do these improvements, but in the future, they may be required to do other types of improvements. Just wanted to bring that up so everyone's clear on it, thank you. GALIMBA: Thank you. AU: Thank you Commissioner Galimba for the question. If we have no more discussion, we can call for the vote. KAY: Yes, thank you, Mr. Chair. So, this is a motion for a favorable recommendation with amendments to Condition K. Commissioner Lin? LIN: Aye. KAY: Commissioner Clarkson? CLARKSON: Aye. KAY: Commissioner Galimba? GALIMBA: Aye. KAY: Commissioner Raffipiy? RAFFIPIY: Aye. KAY: Commissioner Replogle? REPLOGLE: Aye. KAY: And Chair Au? AU: Aye. KAY: Thank you, Mr. Chair motion carries six (6) nothing. 17 EXHIBIT C AU: Thank you, Mr. Kay. So, you will be notified in writing. Thank you, Mr. Fuke. Thank You, Mr. Arai. Thank you, Mr. Aguinaldo. FUKE: Thank you very much. ARAI: Thank you very much. Happy New Year,thank you. The item ended at 11:53 a.m. Respectfully submitted, Melissa Dacayanan-Salvador Secretary to Boards and Commissions 18 EXHIBIT C