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HomeMy WebLinkAbout2004-01-30 BayPacific PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JANUARY 30, 2004 BAY PACIFIC DEVELOPMENT A regularly advertised hearing on the applications of LLC (SLU 03-012/REZ 03-028) was called to order at 11:31 a.m. in the King Kamehameha's Kona Beach Hotel, Kamakahonu Ballroom, 75-5660 Palani Road, Kailua-Kona, Hawai‘i, with First Vice-Chairman Earl Fujikawa presiding. PRESENT:Earl FujikawaABSENT & EXCUSED:Fred Galdones Bill Graham Florence Kubota Jeffrey McCall Hannah Springer Aurelio C. Mina, Jr. Francis Smith Bill P. Thibadeau Patricia O’Toole, Deputy Corporation Counsel Chris Yuen, Planning Director Norman Hayashi, Staff Planner Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner APPLICANT: BAY PACIFIC DEVELOPMENT LLC (SLU 03-012/REZ 03-028) a.State Land Use boundary amendment for 14.902 acres from the Agricultural to the Urban District. b.Change of Zone for 14.902 acres from an Open (O) to a Limited Industrial 1-acre (ML-1a) district. The area involved is a portion of a former quarry site situated approximately 2,000 feet south of the Waikoloa Road and approximately 200 feet south of the Waikoloa Utility Baseyard, Waikoloa, South Kohala, Hawaii, TMK: 6-8-2: portion of 33. FUJIKAWA:The next item on the agenda is Applicant Bay Pacific Development LLC. They’re applying for SLU 03-012 and also REZ 03-028. And while the staff is getting ready, this is: a. State Land Use boundary amendment for 14.902 acres from the Agricultural to the Urban District; b. Change of Zone for 14.902 acres from an Open (O) to a Limited Industrial 1-acre (ML-1a) district. Staff, you may proceed when you’re ready. DARROW:Thank you, Mr. Chairman. If I may direct your attention to the location map. The location of this application is in the South Kohala district. This is in Waikoloa. If you were traveling on Waikoloa Road, you would be traveling in a makai EXHIBIT C direction, and you would pass Waikoloa Village, just past the 5-mile marker, and it’ll be located on the mauka side of the road, identified here in a red dot. The area at this point is zoned Open in County zoning and State Land Use Agricultural zoning. If I may direct your attention to the site map, this is Waikoloa Road coming mauka-makai on the lower portion of the map. You would turn on to Quarry Road, that’s identified here in pink, and then you would come to the area identified in blue, that will be the area that we’re looking at for this application. The Applicant, Bay Pacific Development LLC, is requesting a State Land Use boundary amendment from Agricultural to Urban and also a Change of Zone from Open to Limited Industrial 1-acre for 14.902 acres of a portion of a 268-acre parcel. The Applicant is proposing to establish a self-storage facility and other light industrial uses on the property. The Planning Director has received several letters of opposition from the attorneys for Waikoloa Land Company; and the Planning Director is recommending a favorable recommendation be forwarded to the Hawaii County Council for both the State Land Use boundary amendment and the Change of Zone. Are there any questions? FUJIKAWA:Commissioners, any questions to the staff? Commissioner Springer, go ahead. SPRINGER:Would this be the time to discuss that correspondence from Goodsill Anderson Quinn and Stifel or would you like to wait? FUJIKAWA:Why don’t we wait till we hear the Applicant. SPRINGER:Okay. FUJIKAWA:Any other questions from the Commissioners? If not, would the owner or the representative, please step forward. Mr. Fuke, I’ve already sworn you in. FUKE:Yes. FUJIKAWA:And Mr. Cook, can you kindly raise your right hand? Do you swear to tell the truth on this matter now before the Hawaii Planning Commission? COOK:Yes. FUJIKAWA:Thank you. Can you tell your full name and your address, please? COOK:My name is Brian Cook. My address is 75-5608 Hainalole Road in Kailua-Kona. FUJIKAWA:Okay. I guess your representative may proceed first. Mr. Fuke, go ahead. 2 FUKE:Sure. Your Staff’s report, as always, is very comprehensive. And so if there are specific questions relating to the, you know, the details, you know, relative to what the Applicant is proposing, we’ll be more than willing to respond to that. The proposed conditions, you know, I think that, are fairly comprehensive. We do have like one request that we’d like to have the Planning Department and the Commission to consider; and this relates to proposed Condition D, as in Delta, in the Change of Zone conditions of approval. Based on my earlier discussions with your staff and also the representative of the Department of Public Works, that condition as it reads right now would mandate that the access to the property be situated on an adjoining property which is owned by Waikoloa Land Company. The Applicant actually conceptually does not really have too much of an objection to that. I think that what we would like to do, however, is to reserve the option to, in the event that such an access could not be developed, you know, to allow the access to occur in its present location in a manner where the geometrics and the design of that intersection fulfills the requirements of the Department of Public Works. Along that line, we would like to, therefore, suggest that the Department and the Commission consider the following amendment: Leaving Condition D as is, but just adding the following sentence which would read as follows: “The approach to Waikoloa Road may be located within the subject property provided that the access is allowed to the adjoining mauka property for a common approach to Waikoloa Road, meeting with the approval of the Department of Public Works.” And, conceptually, what that does then is that, you know, since the existing access to this property is almost adjacent to an adjoining property to the north, I mean, to the mauka side, what we’re saying is that if you’re building your access on the subject property, then make sure that the property on the mauka side also be given an opportunity to gain access to it; and the developer is willing to have such a provision. Alternatively, the way the current condition is structured, it mandates the Applicant to secure its access from a property that it doesn’t own. You know, we can try to negotiate; and if we’re not successful, then, pretty much we would be stuck. So we would like to have that option. FUJIKAWA:Commissioners, any questions to the Applicant? I guess, Director Yuen, you have something to say? C. YUEN:Yeah, I just have a few questions. What is the legal status of the existing access? This is not, is this, this 14.9 acres is not a, currently, a lot of record, correct? FUKE:No, it’s a portion of a larger parcel. C. YUEN:And the portion of a larger parcel -? FUKE:And then the access -. If you look at the map, the access of this larger parcel abuts directly the Waikoloa Road, and so that’s where the current access is. 3 C. YUEN:And the current access is on that and the -? FUKE:That’s correct. C. YUEN:The current recommendation, recommended condition is that the access be moved off of that? FUKE:Correct, to an adjoining property to the mauka side. C. YUEN:Yes. Can I ask the Department of Public Works for comment. FUJIKAWA:Will Ki please step forward. You may proceed. EMLER:You have a specific question for me? C. YUEN:Is there a reason why the access should be moved off of this particular property? Is there a problem with creating an access on this lot? EMLER:We have no objection to allowing the Applicant flexibility to provide the access on their own property provided they have shared, they allow shared access with the adjoining property. That was one of the issues. The other reason why we suggested that it be moved is because it makes, the alignment makes sense because there’s an existing stub-out that appears here on the map; and to make the intersection 90 degrees or normal, to Waikoloa Road, it just made sense to turn it in here. And, of course, we didn’t really know the relationship between properties; but we prefer to, you know, that alignment in order to have the shared access, primarily. C. YUEN:Can they make it 90, if they realign the road, can they make an access hit Waikoloa Road at 90 degrees? EMLER:They could if they realigned their road, yes. C. YUEN:Is there anything on this, Jeff, that you want to say, anything further? DARROW:No. C. YUEN:Given that, we would not object to the wording of the proposed condition. FUJIKAWA:Mr. Fuke, you have any other questions? FUKE:No, except that I believe that Commissioner Springer may have some questions regarding the issue relative to the Waikoloa Village Association, the 4 subject property and the purported claim by the Waikoloa Land. We do have the Applicant’s attorney, Mr. Steven Kornberg, present; and, so, if you have specific questions relating to that matter, he’d be more than willing to respond to them. SPRINGER:Is now the time? FUJIKAWA:Yeah, go ahead. Could you kindly raise your right hand? Do you swear to tell the truth on this matter now before the Hawaii Planning Commission? KORNBERG:I do. FUJIKAWA:Can you state your full name and your address, please? KORNBERG:Yes, Steven A. Kornberg, 75-167 Kalani Street, Kailua-Kona, Hawaii. FUJIKAWA:Go ahead. Commissioner Springer, you have a question? SPRINGER:Thank you. Mr. Kornberg, I’m looking at a letter dated January 23, 2004 from Goodsill, Anderson, Quinn and Stifel. Are you familiar with that document? KORNBERG:Yes, I am. SPRINGER:What my concern is, is that Waikoloa Land has advised both the Waikoloa Village Association and Bay Pacific’s consultant, Mr. Fuke, that the Waikoloa Village Association must comply with the applicable deed restrictions. And do you have any comment on that? KORNBERG:Yes, I do, Commissioner Springer. Thank you very much and thank you, Members of the Commission. The history of that use restriction is such that we don’t believe that it’s a valid use restriction affecting this land. The very day, actually, that that deed was recorded, that has that language in it, they also recorded a lease for 20 years to use that very land for a quarry site, which is, in fact, in direct violation of that use restriction. And I think there’ve been other examples of the use by Waikoloa Land when it suits them to Light Industrial uses. You’re not familiar with the law on covenants and use restrictions but basically you can’t have them selective. The person who creates the restriction can’t say this applies to everybody else but me; and when there has been, over time, an ignoring of the use restriction and uses directly in violation of the use restriction, the courts say that you lose the right to enforce that use restriction. From a technical point of view, there’s a Hawaii Supreme Court case that requires, in creating such a restriction, that the benefited parcel be identified; and we don’t believe that the language even complies technically with what’s necessary to create a restriction. But we really believe that the history is such that there is no valid restriction. 5 Other examples, in the year 2000, Waikoloa Land proposed a Light Industrial use to this property to the Waikoloa Village Association, as long as the revenues were split 50-50 between the Association and Waikoloa Land. When I spoke with the representative of Waikoloa Land, Ms. Mirikitani, over the letters by Mr. Yuen, she stated that Waikoloa Land was in favor of Light Industrial use in that area but they wanted the developers to put the facility on their land. We stated we would talk to them, but we never heard back. So we believe that, most importantly, the issue of whether there’s a private use restriction is really an issue between Waikoloa Land and the developer and Waikoloa Village Association. It’s not really one of the criterion, I would respectfully submit, that is part of a land use evaluation as to whether these requests should be granted. We’re willing to take whatever risk. If Waikoloa Land believes that a use that will happen violates some rights they have, there are remedies for them to do that. But looking at the zoning request, we would just suggest that proper land use principles are what should determine the Commission’s view of this issue, and let the private parties deal with any private use restriction, if any such use restriction exists. I hope that answers your question, Commissioner Springer. SPRINGER:Thank you. FUJIKAWA:Go ahead, Ms. Springer? SPRINGER:I’ll just ask the Planning Director, having heard this explanation, if you are in agreement with it that basically there are, as I understood it, no valid restrictions based upon Waikoloa Land’s previous and ongoing activity and that there are other remedies for them to pursue other than this venue? FUJIKAWA:Planning Director, go ahead and explain to the Commission. C. YUEN:I have no opinion as to the merits of the dispute between the two property owners as to whether that, the restriction is valid or not; and I don’t want to express any opinion on that. As far as the Commission is concerned, my recommendation would be to go ahead and make a decision based on the land use criteria for a rezoning and not try to decide the issue of the covenants here. Leave that to, the proper forum to decide that is in the courts, rather than the Commission deciding that it’s going to, well, you know, the Commission just gives a recommendation on this. But rather than the Commission or the County Council deciding that they’re going to block action based on the claim made by the other, by the Waikoloa Development Company, that this was the kind of thing that a court would and should decide. SPRINGER:Thank you. FUJIKAWA:Thank you. Any other questions? Graham, go ahead. 6 GRAHAM:Mr. Kornberg, I think these questions are for you. I have like three questions related here, I think. First, are you representing Waikoloa Village Association or Bay Pacific Development? KORNBERG:I represent Bay Pacific Development. GRAHAM:Do we have Waikoloa Village Association people here today or anything that -? KORNBERG:Yeah. GRAHAM:Yeah, so we will hear from them. Second, could you give us a little understanding of what are the land holdings of Waikoloa Land Company as opposed to Waikoloa Village Association, since they’re both involved in these things? KORNBERG:May I defer to Mr. Fuke for that response? FUKE:And I will defer that to Mr. Schick, who’s the president of the association, who will be testifying a little later. GRAHAM:Okay. Fine. And I did have one third question which probably Mr. Fuke could better answer. If the Waikoloa Land Corporation granted this land to the Village Association back in ’88, whatever, and the intention was that it remain an open as they say, yet, when I look at my General Plan LUPAG map, I see this kind of gray area there which I think is the Industrial-marked area. How did that come about on the LUPAG map, or do you understand how that might have been historically, or -? FUKE:If, I’m getting old, so I might forget. But if my memory serves me correct, I think that concept was initiated either by the Village Association or whoever owned the land at that time, or the Waikoloa Land Development Company. But, in either case, I think that was not part of the original General Plan, original being back in 1971. And, so, during the first course of the review, the 10-year review of the General Plan then that insertion was made with the support, I guess, of all affected property owners. I don’t recall like the Waikoloa Land Company filing any objections to that Industrial designation. KORNBERG:And, Mr. Graham, I’ll say that although the Waikoloa letter refers to the settlement agreement, we’ve reviewed the settlement agreement and it really doesn’t discuss a use restriction. I think some of the people were surprised. A very respected attorney, Diana Van De Car, reviewed the original agreement and she didn’t think that there was a use restriction valid on this property.So I’m not sure how much of it was actually all contemplated by the various parties, except I do know that the Village Association, as you’ll hear, is very much in favor of this proposal. GRAHAM:Good. The timing also seems very curious to me because, as 7 Mr. Fuke indicated, if this got on the General Plan LUPAG map with that revision that took place when Lono Lyman was Planning Director and Dante Carpenter was Mayor, that was all just about ’87, ’88. I remember all that was going on. And yet this transfer that we’re looking at is dated ’88 also. So, anyway, I guess, that’s all I have to say. Thank you. FUJIKAWA:Any other questions, Commissioners? Kubota? KUBOTA:I have a question for Mr. Fuke. On your communication dated th January 8, specifically, Roadways and Traffic, Nos. 2 and 3, you disagree with some of the requirements that DPW is requesting and you have your rationale for them. I noticed that in Conditions E and G of the Change of Zone application, those specific references are conditioned. May I have your response to that? FUKE:Sure. Subsequent to drafting that response, we’ve had a number of discussions with Mr. Cook, the developer, as well as his engineer; and all things considered, it was decided that what the Department of Public Works had recommended may be best for the overall project, you know, with the additional amendment as we suggested earlier. And, so, as a result, you know, I would like to, at this point, then publicly kind of amend what we had stated further. So, to date, the conditions that your staff is recommending with the additional suggestion that we’ve offered, you know, would be totally acceptable. KUBOTA:Thank you. FUJIKAWA:Any other questions? If not, Mr. Cook, you have the floor. COOK:Thank you, Chairman. We first started working with Waikoloa Village Community Association back in 2001. And looking at this area for development, we viewed Waikoloa as an area that’s just growing in size in the community. And looking at the General Plan showing the proposed Industrial zoning for this particular area, we kind of zeroed in on the quarry site that had already been developed and used for over 15 years and came up with a plan for a small Light Industrial park. We felt like that by creating industrial land a self-storage facility within the community, it would allow people living there to not have to travel 15 to 20 miles either into Waimea or into Kona and small business people would be allowed to rent space in the warehouse area. Our preliminary layout we had was about a third of the property for a self-storage facility that would be growing as the neighborhood grew. The middle portion we laid out warehouses. We’ve laid them out such that they have adequate parking and probably more parking than most industrial areas. We have laid them out with the thought in mind of users that can access as well as customers. And we just think there’s a great need in the community and, hopefully, the Planning Commission agrees with this. FUJIKAWA:Thank you. Any questions, Commissioners, for Mr. Cook? Okay. Thank you. Can you step back. And I have three people who signed up to testify on this application. Will the three parties please step up forward? Leighton Yuen, Lu-, 8 Lunakanawai and John Shick. Gentlemen, please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Hawaii Planning Commission? TESTIFIERS:I do. FUJIKAWA:Thank you. Start off with you, John. State your full name and your address? SHICK:My name is John Shick, and I need to make a correction. I’m not the president of the Village Association.I’m the General Manager. My residence is 68-3513 Makana Aloha Place, Waikoloa, Hawaii. I’m representing the community association. We have an association presently of 2,500 homes, both condominiums and single-family structures, primarily single-family homes; and we are growing in leaps and bounds. At any time right now we have at least 70 homes under construction. So developers are coming in because of the price of the real estate right now. And we have approximately, in the next couple of years we have approximately another 800 to 900 units on the horizon. There’s another 2,000 units possibly on the horizon for a property that was in bankruptcy; and there’s now, I understand, actually been bought 866 acres, which is also already approved for residential development. And those are all properties that will eventually be part of the Village. We’ll have a lot of people there. We have absolutely no commercial or commercially-developable land. It’s all residential land. We desperately need a place where we can have storage facilities, shops. Right now we have shops in garages in the Village, which is technically illegal. We have no place else for these people to go. We have boats there parked in plain view that are higher than the buildings that they belong to or the houses that they belong to. That is not allowed under our covenants. We have no place for them to go. We can’t tell them, the only place that there is is down Honokohau Harbor, or wherever else you can find a place that may not be secure. A secure facility is something we desperately need. We have a very dire deep need for this facility; and that’s why we have engaged Bay Pacific to build this facility and to run it for us. Thank you. FUJIKAWA:Thank you. Commissioners, any questions with Mr. Shick? Go ahead, Graham? GRAHAM:Mr. Shick, you said we don’t have any commercial facilities now, but there is. Right in the Village there’s a supermarket, there are restaurants, there’s other stuff there, right? SHICK:That does not belong to us. That’s a separate private entity, and we have no control over that. Unfortunately, I would love to own that little shopping center. I think it could be a little gold mine. But the way it’s operated, the rents are so steep that nobody can go in there. They have a lot of empty space. But we have no control over it. 9 GRAHAM:Right. And so far as any other operated by anybody else, commercial or industrial area in the Village area, is that in fact the only one, the one I just mentioned? SHICK:That is the only other industrial area or commercial area presently in the neighborhood, yes. GRAHAM:Thanks. FUJIKAWA:Any other questions? Okay, Mr. Yuen, you may proceed. Give your full name and your address and go ahead. L. YUEN:My name is Leighton Yuen; and I’m with the law firm of Goodsill Anderson Quinn and Stifel. My address is 1800 Alii Place, 1099 Alakea Street in Honolulu, Hawaii. And I’m here today on behalf of Trans-Continental Development Co. and Waikoloa Development Co., who are the master developers, the original master developers for the Waikoloa Village Association. I understand that it’s not the role of this body to enforce private deed restrictions. The reason we’re here today is to decide whether this proposed use is appropriate for this area. The deed restrictions are evidence of what was the intent behind this land that surrounds the Waikoloa Village Association. And you should have in your materials a copy of my letter which included a map. It’s this map here; and that map that you see on the board is a blowup of this map. But I think this map is actually easier to use to understand how the spaces relate to each other. The area that’s shaded in yellow on this map -. PUBLIC:That map? L. YUEN:Excuse me? PUBLIC:That map? L. YUEN:Yes, that map there. Okay, if you look at this map and turn it this way, the top of the map is mauka and the bottom of the map is makai; and the area that’s shaded in yellow represents 10,000 acres that were conveyed to the Waikoloa Village Association. The area within this yellow-shaded area is the area that is the current Waikoloa Village, the current Waikoloa Village, and areas that are intended to be developed in the future as part of the Waikoloa Village. This rectangular area on the bottom represents parts of the Village which have already been developed; and this area, upper area here represents areas that are earmarked for future development. This part here represents about 4,500 acres of future developable area, all of which is owned by Waikoloa Land Company and its affiliates. So I think that was in response to a question that somebody had raised about the relative land holdings of these parties. 10 All of these 8,000 acres here were conveyed to the Waikoloa Village Association in 1989 as part of a settlement of various issues between the Village Association, my clients and the prior master developer, which was Boise-Cascade. And that agreement, in that agreement, these lands were intended to be used in perpetuity for open space areas to serve as a buffer and to protect scenic views for the Waikoloa Village area. And we object on the grounds that the proposed rezoning and boundary amendment is inappropriate to this area in light of this long-term vision and in light of this long-term intention. The deed restrictions are evidence of what we intended to do. I wanted to take a very quick moment and point out several passages from the Hawaii County Planning, I’m sorry, General Plan, that support this long-term vision of this area. It will take just a minute. On page 14 of the General Plan, the stated purpose, the stated land use purpose of the General Plan is to “Protect and preserve forest, water, natural and scientific reserves and open areas,” and that’s why we’re here today. On page 32 of the supplementary materials to the General Plan, this is what it has to say, “Hawaii’s natural beauty is both an irreplaceable asset and an asset that is part of the public trust. It is fragile, and although often enhanced by man can easily be adversely affected. Measures must be taken to ensure its protection, both now and in the future, for the enjoyment of Hawaii’s residents and visitors.” And then, finally, with respect to open spaces themselves, this is on page 96 of the General Plan, “A vital part of the environment, open space land is that land which is basically not used for buildings or structures and is characterized by scenic beauty, existing openness, and natural conditions. It is the counterpart of development. Retained in its state of use, open space would maintain and/or enhance the conservation of needed or desired natural, scenic or historic resources which might otherwise be permanently lost. It would also enhance the present or potential value of abutting or surrounding urban development.” That’s why these lands were conveyed to the Waikoloa Village Association and that’s why we object today to these proposals that are before you. One thing I forgot to mention is that when this land was conveyed to the Waikoloa Village Association, it was conveyed for nominal consideration. It was not sold to them, not, there was no return on it. It’s 10,000 acres of land that went to the Waikoloa Village Association for these purposes. Now I understand questions have been raised about prior inconsistent uses with this purpose. This land was conveyed in 1989 as part of an overall settlement of a number of issues that the Waikoloa Village Association had with respect to the overall development and, you know, part of that was Boise-Cascade as predecessor and part of that was Waikoloa. At that time, the agreement was that Waikoloa Companies would convey this land to them for these purposes. At the same time, there was an agreement that the quarry in question would continue to be operated for up to 15 years. Those 15 years have now expired. And based, I mean, in accordance with that agreement, we’ve closed the quarry and the quarry is no longer in operation. The quarry was intended to be a limited and specific exception for this, for the purpose of providing building materials to the Waikoloa Village Association; and during this interim, the Waikoloa Village Association derived rents from the use of the quarry and from the extraction of rocks from the quarry. 11 So I don’t necessarily think that you can say that, from the outset, the condition was violated. It was all part of the original contemplated agreement between the parties. The quarry would operate for a period of time and then end and be restored to the open space purposes. Finally, with respect to the Supreme Court case that Mr. Kornberg had mentioned, that Supreme Court case, first of all, doesn’t change the fact that the proposed use conflicts with this long-term vision, which is what you’re here to make a recommendation on. Secondly, the case that he mentions is a case named Fong v. Hashimoto. And that case deals with one theory of enforcement that is available to the Waikoloa Development Company and its affiliates; and it deals with this one theory in very narrow circumstances. The Fong case was an action by a mauka landowner against his makai neighbor to enforce certain height restrictions on building. Fong, who was trying to enforce those restrictions, was not the original beneficiary of the covenants on which he was trying to rely. And, so, it was incumbent on him in that Fong case to establish his rights to enforce it. We don’t have that situation here because the deed restrictions in question run to the benefit of my clients, they’re the named beneficiaries. So I don’t think that that case should be dispositivefor you. In addition, there are other legal theories which would permit us to enforce the deed restrictions. The questions that I have here today for the Waikoloa Village Association is what prompts this 180 degree reversal from the vision of these lands if they were to be originally used for open space purposes. You have before you a copy of the deed. And I believe the Village Association signed that deed so they can’t claim ignorance of what they were getting. That really is all I have to say, unless there are questions. FUJIKAWA:Any questions, Commissioners, to Mr. Yuen? Go ahead, Springer? SPRINGER:Thank you. With regard to your discussion of open space and the citations from the General Plan regarding that open space perhaps being complementary to urban development, what use does your client envision for the former quarry site in its, now that it has fallen into disuse? L. YUEN:My clients don’t own this piece of property any longer. But what we had always envisioned was that this entire buffer area be exactly that and serve as recreation space and, you know, open grasslands to provide an open area, and to preserve use for the Waikoloa Village. SPRINGER:Mr. Chair? FUJIKAWA:Go ahead. 12 SPRINGER:Would you try to influence those who do have control over the land use to rehabilitate the quarry site, to re-naturalize it, or -? L. YUEN:I believe, I can’t say for sure but I believe that the quarry site, in fact, has been. There were certain conditions for renaturalizing it when it was closed, which was, I think, in the year 2000. I believe that those have been completed. SPRINGER:Thank you. FUJIKAWA:Graham, go ahead. GRAHAM:First off is I’m flushing through my memory. I know that I have done computer work both for Trans-Continental Development and for Waikoloa Village Association, neither of which were within the last 10 years or so.So I don’t feel like I have any interest in this matter, but I want to disclose that. I’m wondering from the, again, Mr. Yuen, looking from the way we work, the Zoning Code is intended to carry out the General Plan; and the General Plan, at this point, does have industrial area for that particular region. So even though the Zoning Code says Open, it would seem that a commercial-industrial use would be justified. And I was also wondering to ask our current Planning Director, since he has been going through a General Plan revision lately, if anybody asked that this area be removed from Industrial outside Waikoloa so they could go back to open space as envisioned originally by Waikoloa Land? FUJIKAWA:Chris, go ahead. C. YUEN:No, we don’t have any changes for this area, no, not proposed. There is a change that, there’s a change at the other end of Waikoloa Village, on the end of Paniolo. I think that’s the only amendment that I can remember that would add a Medium Density; but that’s a couple of miles from where this is. GRAHAM:And you didn’t have any requests to take that out of it? C. YUEN:No, no, no. GRAHAM:Thank you. And then, finally, I was wondering because Waikoloa Village Association mentioned the need for commercial/industrial property, if this area was what you felt should remain open, do you have an alternative for what you think would be the proper siting of such, or do you think it should all be well away from the Village? L. YUEN:I don’t know that I can answer whether there’s a specific site that could be used. I can say that Waikoloa Development Co. owns those 4,500 acres kind of in that mauka bubble, as well as some additional areas within the Waikoloa Village area 13 within the so-called urban core of the Village area, and then there are additional areas further makai which might be appropriate. But I cannot say whether, you know, any of those ultimately will end up being appropriate for this use. GRAHAM:Okay. Thank you. FUJIKAWA:Any other questions? C. YUEN:I’ll just ask a question. Do you know whether Waikoloa Development took a stand on the General Plan changes back in the ‘80s that created Industrial designation here? L. YUEN:I don’t know. I can only conjecture that it may be that that particular industrial area that you’re marking is associated with what was then happening on the property, which was this particular quarry area when it was being used as a quarry. But that was just, only be a conjecture. I couldn’t tell you yes or no. C. YUEN:And just for the information of the Commission so you understand the total picture -. If you compare what has been given to you with the yellow area that was deeded to the Waikoloa Village Association and you look at the current General Plan map, the 1989 LUPAG map, all of that yellow area is shown as Open on the LUPAG map, except for a small area in the immediate vicinity of this application that’s shown as Industrial. And then between that small area and the Waikoloa Road, there’s a small area that’s shown for urban expansion. FUJIKAWA:Any questions, Commissioners, to the Director? Go ahead, John. SCHICK:If you would allow me a comment. Please look at the map that the Waikoloa representative has given you. You see this large yellow area, please look closely at that and see what it encompasses. It encompasses Waikoloa Land. It does not necessarily encompass the Village. It does not serve as a buffer for the Village. It serves as a buffer for Waikoloa Land Development on the mauka side of the Village, because they own all of that land. All that yellow land, we go up to the 10-mile marker there which is approximately 4 miles up the road. The road being crooked, so that’s maybe only about 3-1/2. But, you know, what do we need land up there for in order to protect the Village? That’s not what we need protection. That was given to the Waikoloa Village as a settlement in a lawsuit. I was not present, and I’ve only been in Waikoloa Village for three years. But looking back at what happened, and actually this is totally beside the point because you folks don’t deal with these things anyway. But just to set the record straight, these lands were given to Waikoloa Village as a settlement for things that the development company failed to do. And, basically, what they did is they gave us a bunch of land that we can’t do anything with except pay taxes on, and it protects Waikoloa Development’s land. So, if you go according to the General Plan, this area has been designated on the General Plan as industrial area. And I think that you folks have the authority to rezone or do whatever it is that you decide to do in conjunction with the application that has been brought in that which we fully support, and that any other 14 things, any other consequences of that are not within your purview. So I would ask that you kindly consider this favorable. Thank you. FUJIKAWA:Any questions, Commissioners, to any of these testifiers? None. Thank you very much. Will the Applicant’s representative, please step forward. Mr. Fuke, you have heard the testifiers. Have you anything to say? FUKE:Just very quickly. First of all, we agree with the Planning Director’s analysis inasmuch as this is a private matter between the Village Association and the Waikoloa Land Company. It’s something that may ultimately wind its way in court but, nonetheless, the issue before you is a land use issue. Specifically with respect with what Mr. Yuen had to say, you know, there was a discussion about the, not Mr. Yuen, the other Yuen, was saying about like, you know, like there is a vision. But I think that what’s, the vision that’s really important for the Planning Commission or the County to consider is what is the public vision; and the public vision is what’s reflected in the General Plan. And on the General Plan, and I do have a map over here which kind of outlines pretty much generally along the line like what Mr. Leighton Yuen pointed out. All of that area that’s in green is owned by the Village Association, and it’s suggested for some sort of an open space use. The only exception, of course, being the industrial area. And if you look at the Waikoloa area, as testified by Mr. Shick, and you look at the General Plan, there’s very, very limited area that’s presently zoned or planned for future commercial or commercial-related type of uses. And if, as Mr. Shick had indicated that, you know, you’re talking about over 2,500 homes today, 70 homes under construction and 800 to 900 more in the very near future and 2,000 additional more homes coming on line, you have ask yourself, where are you going to put the service? And I think that when you look at the General Plan, the General Plan is suggesting that the area that’s being proposed right now is an appropriate area for service. It’s not right next to the Waikoloa Road. It’s approximately 2,000 feet from that Waikoloa Road. So in terms of like a visual and open space type of buffer, you do have sufficient distance to afford that buffer. In addition to that, you know, the Commission is well aware that Rule 17 of the Planning Commission, the Planning Department’s rules, does provide adequate landscaping requirement which I think should help mitigate any potential visual concerns that were raised earlier. So, in a nutshell, I think that’s kind of like our position. We respectfully request that the Commission, you know, look at it purely from a land use standpoint, look from the infrastructure standpoint, I think we’ve addressed the infrastructure issue. And we believe, and continue to believe, that this is an appropriate request. FUJIKAWA:Thank you. Commissioners, any questions of Mr. Fuke or the Applicant? If not, Mr. Director, you have anything to say? YUEN:Nothing further. 15 FUJIKAWA:Thank you. Do I hear, let’s start off with the Change of Zone first, Application REZ 03-028. Do I hear a motion? KUBOTA:Mr. Chairman, I move that -. FUJIKAWA:Sorry, let’s start off with the land use first, land use application, SLU 03-012. Do we have a motion? KUBOTA:Mr. Chairman, I move that SLU 03-012 be given a favorable recommendation and forwarded to the County Council, along with the Recommendations and Findings. SPRINGER:Second. FUJIKAWA:It has been moved by Commissioner Kubota and seconded by Commissioner Mina that the State Land Use boundary amendment application, SLU 03-012, be accepted. All in favor -? SPRINGER:Springer. FUJIKAWA:I’m sorry? SPRINGER:Commissioner Springer seconded it, the motion. FUJIKAWA:Correction on that, Springer who seconded the motion. Any questions? If not, staff, go ahead with the roll call. DARROW:Thank you, Mr. Chairman. Commissioner Kubota? KUBOTA:Aye. DARROW:Commissioner Springer? SPRINGER:Yes. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Mina? MINA:Aye. 16 DARROW:Commissioner Smith? SMITH:Aye. DARROW:Commissioner Thibadeau? THIBADEAU:Aye. DARROW:Mr. Chairman? FUJIKAWA:Aye. DARROW:The motion passes. FUJIKAWA:Thank you. KUBOTA:Mr. Chairman? FUJIKAWA:Yes, Commissioner Kubota? KUBOTA:I move the Change of Zone application, REZ 03-028, be given a favorable recommendation and be forwarded to the County Council, along with the Findings and Recommendations made by the Planning Department and the conditions attached with one amendment to Condition D, as in Dog, by addition of a final sentence. The sentence which reads: “The approach to,” da la la la la la. I think the staff caught it. SPRINGER:Second. FUJIKAWA:I guess the staff got everything down. Staff, you got it recorded, right? NOMURA:Yes. FUJIKAWA:Not what Mrs. Kubota said,but -. Do I hear a second? SPRINGER:Second. FUJIKAWA:Okay. It has been moved by Commissioner Kubota and seconded by Commissioner Springer that the application of Change of Zone, REZ 03-028, be accepted. Any questions? If not, go ahead, staff, roll call. DARROW:Thank you, Mr. Chairman. Commissioner Kubota? KUBOTA:Aye. 17 DARROW:Commissioner Springer? SPRINGER:Yes. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Mina? MINA:Aye. DARROW:Commissioner Smith? SMITH:Aye. DARROW:Commissioner Thibadeau? THIBADEAU:Aye. DARROW:Mr. Chair? FUJIKAWA:Aye. DARROW:The motion passes. FUJIKAWA:Thank you. The discussion ended at 12:24 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 18