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HomeMy WebLinkAbout2022-04-07 Windward Exh B (Item 1 Holcomb PL-SMA-2021-007) WINDWARD PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT APRIL 7, 2022 A regularly advertised hearing on the HOLCOMB FAMILY TRUST (PL-SMA-2021-000007) was called to order at 9:11 a.m. via live stream online meeting, with Chairman Dean Au presiding. COMMISSIONERS PRESENT: Dean Au, Gilbert Aguinaldo, Lauren Balog, Wayne De Luz, Michelle Galimba, and Dennis Lin ALSO IN ATTENDANCE: Malia Kekai, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Zendo Kern (Planning Director), Maija Jackson (Planning Program Manager), Alex Roy (Planner), and Noriko Sauer (Secretary to Boards and Commissions) APPLICANT: HOLCOMB FAMILY TRUST (PL-SMA-2021-000007) Application for a Special Management Area(SMA) Use Permit to construct a single-story, 3,018-square foot, 3-bedroom, 3.5-bath single-family residence and related improvements which include a swimming pool, garage, lanai, and a utilities room on 6.485 acres of land situated within the SMA. The subject property is located at 28-3426 Hawaii Belt Road (Highway 19), on the makai side of the highway approximately 0.5 miles south of its intersection with Honomu Road, por. of Kaakepa-Malamalama Iki, South Hilo, Hawaii, TMK: (3) 2-8-012:028. Secretary's Note: "—" indicates indiscernible speech due to internet/technical difficulties or simultaneous talk. AU: So, let's go right into new business. We have one (1) agenda item. Applicant Holcomb Family Trust, SMA-2021-000007. Application for a Special Management Area(SMA) Use Permit to construct a single-story, 3,018-square foot, three (3)-bedroom, 3 and a half bath single- family residence and related improvements which include a swimming pool, garage, lanai, and a utilities room on 6.485acres of land situated within the SMA. The subject property is located at 28-3426 Hawaii Belt Road on the makai side of the highway approximately half a mile south of its intersection with Honomu Road, portions of Kaakepa-Malamalama Iki, South Hilo, Hawaii, TMK: (3) 2-8-012:028. Mr. Alex Roy can I please have the presentation? ROY: Just give me a second to share my screen. Okay, everybody sees that alright. Thank you, Chair Au. Good morning, commissioners. This is a Special Management Area Use Permit Application, PL-SMA-2021-000007 for the Holcomb Family Trust. Here's a location map showing the site which is makai of the Mamalahoa Highway just south of Honomu. The applicant is requesting to construct a single-family residence and related development on an approximately 6.5-acre shoreline parcel. All located within the SMA as well as within the State Land Use Conservation District. The residence will be a single-story dwelling about 3,000 square feet of interior living area, 3 bedrooms, 3 1/z bath, a garage, swimming pool, lanai, an 1 EXHIBIT B Individual Wastewater System (IWS) for the residents, a PV system for power, and a utilities room to support those utilities. The total development area is about 5,000 square feet, 4,877 square feet. The County zoning of the parcel and as you can see, most of the surrounding area is in Agricultural 20-acres. There is some Residential 7.5 that would be Honomu just north of the property. The State Land Use, as I mentioned, is Conservation, but it does have portions, a small portion within the Agricultural District and then again Honomu you see is zoned Urban in State Land Use. The Land Use Pattern Allocation Guide (LUPAG) for this project site is Open and the surrounding areas is Important Agricultural Lands and then you see Honomu with the Low Density Urban and Medium Density Urban designations. Here's an aerial photograph and looking south, you can see the property is undeveloped, heavily vegetated, grasses, shrubs, trees, and there's no development and no real current access that's been developed yet. Here's an aerial photograph looking to the north, again, you can clearly see that it's undeveloped and vegetated all the way up to the coastline. Here's the site plan as proposed by the applicant, you can see the driveway which is within an easement that allows access to the site. The home, the individual wastewater system and take note the distance from the top of pall the applicant has set this back about 130 feet. So, well back from the shoreline and in this case the shoreline is the top of pall. Here's a view building section, side view of the proposed structure showing the height, as it was stated it's single-story. So, view plane issues were taken into account and because of the vegetation and topography this will not be seen from the road. So, it would be well hidden, so there should be no view plane impacts. Here's a floor plan provided by the applicant for the structure. This is an outline of the fishing access. So, this is the access provided by the applicant for fishermen to access the site called "Ladders". I turned the site plan just to make it easier for viewing but the applicant has stated that they would put parking. A small parking area, possibly two (2)to 3 cars just on the mauka side of the driveway and then the fishermen would be able to access Ladders as they have done for a while now. But again, this is a fishermen access. Here's a site photo this is taken by the applicant or the agent for the applicant and is a view of the proposed dwelling site within the property. You can see, pretty heavily vegetated. This is a view from the proposed residence looking makai towards the shoreline again, you can see it's very heavily vegetated. As some of you may note in the Background and Recommendation, there is an old route of the Hawaii consolidated railroad passes through this property, and this is a view of that old railroad bed. As you can see, full of palm trees, not much is left. But State Historic Preservation Division (SHPD) has signed off on that and has reviewed these sites on the property. This is a view of the Ladders fishing site access at the edge of the pall. As the fishermen have stated in the Environmental Assessment(EA) and through interviews it's very dangerous to get down there. A lot of them actually will repel versus using these rickety ladders. You can tell from the photograph how steep and dangerous getting down to that rocky point would be for 2 EXHIBIT B anybody that's not used to or has experience with this area. Even once you get down to the rocky shore, you can see the waves crash over there, so not a place for the public. But again, for those fishermen who have used the site in the past and have experience using that site should be permitted access. This is a view of Mamalahoa Highway. The driveway entrances are on your left, so this is a view south. So, the applicant will access their property through an easement off of that paved area on the left-hand side of the photograph. And then, here we can see that same access this is looking north along the highway and the applicant will gain access through this easement that attaches to this area here and the driveway will extend to the property. I have one amendment to Condition No. 3. An incorrect date was added so it's really just a change of the date. In No. 3 "The construction of the single-family residence and related improvements shall be conducted in a manner that is substantially representative of plans and details as contained within the SMA Permit application dated" October 10, 2021 not October 29, 2020. So, I would like the Commissioners when they vote to approve or deny if they vote to approve to include that amended condition. So, we can just change the date, the application date that's the only thing. So, the Director's recommendation for PL-SMA-2021-000007 is the approval with stated conditions. AU: Thank you, Mr. Roy for the staff presentation. Any Commissioners have questions for Alex? Commissioner Galimba question? GALIMBA: Yes, thank you Chair. So, I just wanted to be clear about the access. There is or is not an easement for not the public, but for fishermen to have access to that in perpetuity or is it just a license, potential license? ROY: Yes, there's no actual easement. The interviewees stated that they have been accessing this area for five (5) generations but there's no stated or deeded easement or access to date. The applicant has taken upon themselves to create this easement for access for fishermen who have used the site, so it'd be through a licensing process between the applicant and the fishermen in that area. So, yes, there is no easement now currently it's just a historic access. AU: Alex, I have a question. From the pictures that you showed to me. That access to the ocean is very dangerous. I don't think you can answer this question, but I guess the question I have for you is. What is the liability on the applicant and the landowner if something was to happen, for any land for that matter? ROY: The applicant may be able to speak clear to that, but I think in the licensing process that the applicant wants to set up with the fishermen it would, I think to reduce liability that's the process that they want to set up. And part of the reason why the applicant and the Planning Department didn't really feel the public should be going down there. As you saw from the photographs it's very dangerous and only those people that have experience really have any business kind of going down there because it's so dangerous. 3 EXHIBIT B On top of that there's another point to the south, through Kamehameha Schools (KS) lands that fishermen also access this a little easier. But I think the applicant may be able to address the liability question more specifically. But the idea is that the licensing program would kind of provide some liability protection to the landowner. AU: Okay any further questions for Alex from Commissioners? Okay if there's no further questions. At this time, I'd like to call the applicants representatives, and I think we have four (4) of them on Jason Knable, Alicia Fung, Ron Terry, and James Leonard. Are you guys all present? Good morning y'all. Thank you all for coming. Can you please raise your right hand, I'm going to need to swear you in. Okay, all 4 of you guys. Okay, thank you. Do you swear or affirm to tell the truth on this matter now before the Windward Planning Commission? TERRY: I do. AU: Okay. If you do speak,please state your name and the town that you live in. Just a quick question before you guys get started. Have you received the background report and recommendation from the Planning Department? KNABLE: Yes, we have. Good morning, Chairman, members of the Commission, my name is Jason Knable. I'm here today, along with Alicia Fung from our office and our consultants James Leonard and Ron Terry helping the applicant Kelly Holcomb with this agenda item. We are here to answer any questions. I live in Hilo and to start yes, we've received the background report and recommendation and we've discussed it with our client, and we agree with the Director's recommendation and proposed conditions. If you allow me, I can go ahead and give you guys a short presentation, if that works? AU: Yes, please go ahead. KNABLE: Well, you know first off, I want to thank the Planning Department for that presentation. Very thorough, kind of hit on a lot of the big issues for this project. Just to provide a little bit more context. Our client Kelly Holcomb has been visiting friends on the island regularly for years with his family. When this property first came up for purchase in Honomu in 2020. Kelly jumped at the opportunity to go ahead and purchase the property, with the goal of building a home. With the hope of someday retiring here, and also to do a little bit of farming and also to be closer to the friends that he's created through relationships over the years in the Honomu community. Part of this process, shortly after acquiring the property, he only then learned that the property was located in the State's Conservation District and Special Management Area and the permitting of a dwelling would require a couple of levels of entitlements. Since the property is located in the Conservation district, we also are concurrently processing a Conservation District Use Application (CDUA)permit with the State. One component of the application was to prepare a Final Environmental Assessment(FEA)that Ron Terry helped us with. The FEA was ultimately accepted by the State last year. You'll probably see the big FEA in your background report. It's pretty big. We studied the property quite extensively. Ultimately, the background, 4 EXHIBIT B ultimately the FEA concluded that there were no significant issues identified with the exception of limiting tree trimming during the summer and even into the early fall to avoid impacts to the Hoary Bat and the Hawaiian Hawk during their breeding seasons. Respect to the dwelling, the size, height, use, and color of the dwelling is limited to the State's requirement for single-family dwellings in the Conservation district. Under the State rules we are limited to only a 5,000 square foot building envelope which we are just a little bit under. Which essentially accounts for approximately maybe less than 2 percent of the entire 6.5-acre parcel for this parcel sizes Alex had alluded to earlier. The State rules for this parcel size require us to a minimum setback from the pall of 50 feet. Through our EA process our coastal erosion study ultimately determined that a 100-foot setback would be appropriate. Kelly decided to take it upon himself to move the dwelling even further back. So, he tucked it back. If you look at the site plan that is in your report, you'll see that on the makai side of the property we're setback approximately 150 feet from the top of pall on the side where a Honomu stream exits into the ocean. Along the north we're setback about 130 feet kind of tucked nicely into the property. As Alex also mentioned, we conducted a view plane analysis trying to be consistent with the requirements of the Hamakua Community Development Plan was ultimately determined because of the topography, the amount of vegetation that's along the Hawai'i Belt Road (Highway 19). That there would be no view impacts of the dwelling being constructed centrally located tucked into the property. And even views from the ocean would be minimal to none seeing that like Alex said this property is set upon on top of a pall probably approximately 130 feet in some areas to 170 feet in some areas above the coastline. So,we're pretty high up there. With regard to the issue of shoreline access. Being that we're so far up on top of that pall and it's a quite a way down to the ocean. Our client has recognized that there are area fishermen that use the Ladders site to climb down to the ocean. But as you could see from those exhibits that are presented earlier the ladder is in a dilapidated state and it's no longer usable. We do understand that there are some fishermen in the area that would still repel down the cliff to get access. I think, by looking at some of those photos too you can also see that the shoreline below is very rocky, very little area to move around once you're down on the rocks. In terms of descending the cliff I'm told that it's super dangerous. Our coastal geologists who's an experienced climber told us that when he was doing his report that this was one of the most dangerous repels that he has ever done. Also, anybody who's familiar with the Hamakua coastline know that the ocean is extremely dangerous and very unpredictable in that area. We've lost a number of opihi fishermen on the coastline over the years. Nevertheless, our client is in full support of the Planning Department's recommendation and always made it clear throughout the process that he wants to see the area fishermen be able to use the Ladders site to gain access to the ocean. We facilitated and volunteered to provide a six (6) foot wide coastal corridor mauka/makai and also a ten (10) foot wide corridor along the top of the pall to the Ladders site. The idea would be similar to what Councilmember Kimball had said would be to enter into a license agreement or some sort of management agreement with an area group. We've been talking with the Makahanaloa Fishing Association. Had some conversations with them and they recognize the need for managed access to avoid the potential issues of unexperienced folks getting into a situation where they hurt or injured themselves. It would 5 EXHIBIT B either be through the Makahanaloa Fishing Association or a local land manager that Kelly ultimately chooses. But the desire is to basically get into this situation where the Association or the land manager is able to work out a license agreement that absolves basically creates liability protections for the landowner. Also, sets up the rules and regulations for the use of the property. We'd like them to be the fishermen to be able to access the property. Provided that they understand the dangerous nature of the sea cliffs, they have experience of fishing and gathering of the resources in the area and they're willing to sign these liability waivers that will protect our client. The public access would be or this access for the fisherman would be essentially open to them based on the similar criteria that the County opens and manages public access to other areas. We open sunrise to sunset weekly. Night fishing will be available, but just no camping and probably would also include no campfires. But with that we stand ready to answer any questions that you guys may have for us. AU: Thank you for your presentation I do see Commissioner Lin, do you have a question for the applicant? LIN: Thank you Chair. Mr. Knable,just a question to toss out there, how many fishermen are we talking about that go through this trail? I mean just interviewing the people in the area. KNABLE: From what I understand it's probably just a handful of folks. The Makahanaloa Association informed us that there's just a small group. A lot of folks like Alex said they prefer to go to the KS property, which is a point to the south of our property. Which is a little bit closer to the shoreline and you don't have this really tall dangerous sea cliff situation. But we recognize through the interviews that we did through our cultural impact analysis report that there were just a handful of folks that wanted to come down there and use the resource. So, the idea is to kind of create this managed access situation where anybody who's interested, so long as they're willing to sign the liability waivers and they're willing to observe our rules. We certainly will facilitate that use and even give them some parking on site so they're not parking out on the road. Which is current what usually happens during the big ulua tournaments. Folks are parking right at that entrance that we've shown, and they go through the property to the south and go to the KS point. So,we figured that this is a good way to take care of the fishermen, the folks that are interested in using it, but at same time providing our client with some protections if something bad happens. LIN: Okay, no further questions, thank you. AU: Any other Commissioners have questions for the applicant? Commissioner Galimba you have a question? GALIMBA: Right, so just reading the recommendations. The applicant is encouraged to allow access which we talked about. I think all of the discussion of managed access is completely 6 EXHIBIT B reasonable and the right idea. I'm just a little bit, I would like to see it a little bit stronger. Could we just say allow access with and then also include managed access? AU: Excuse me, Commissioner Galimba can we just stick to questions first and then we can go into discussion and deliberation after a motion. So, maybe if you just have a question for either staff— GALIMBA: It was a question to him to see if they would consider that, but we can wait. AU: Okay, sorry, I'm sorry for cutting you off, but did the applicant and the team get that question? KNABLE: It's something that, it's tough because we're in a situation where our properties landlocked and we only have access to the property through an easement that's recorded against the adjoining property for access we have. You'll notice by the application we're only focusing on this piece of property because and not improvements in the driveway section or the easement area to the highway because we have no contact with the adjoining landowner. Reservations in our deed don't provide for our ability to grant or create access easements for other purposes other than the current allowable use which is access and utility. Ideally, we wanted to come in and do some improvements within the access easement, but ultimately, we found out that because of the way that the language was written, we don't have those rights. So thus, we don't have the right also as well to grant formal public access. So, we think the way that we're proposing this managed access is something that we're still able to take care of the fishermen. We're basically calling them invitees so they can be invited over the easement area to our property without running into issues with the adjoining landowner. And the idea would be to get into a situation where we would have managed management agreement with either with a local fishing association or even have our own land manager of our choosing kind of manage that. And, quite frankly, Kelly he's coming here, he wants to create a home for his family when they retire, which should be hopefully a few years and he wants to have that relationship with the fishermen. He has friends in the community, he recognizes that it's a very important issue for them and he's committed to making sure that these fishermen have access as long as they want and as long as they're able to kind of adhere to some of the rules that would be setting up to ensure the liability protection that he needs. I hope that helps to answer your question. GALIMBA: Thank you, that context is really helpful, and I do really appreciate how thorough your work is in writing this all up. It's really excellent. KNABLE: I appreciate that. GALIMBA: Yeah. KNABLE: We have a good team. 7 EXHIBIT B AU: Thank you, Commissioner Galimba for the question. Any other questions for either staff or the applicant? Okay, with no more questions or could I get a motion on the application, and we can discuss? DE LUZ: Motion to accept with the one revision on the timeline. GALIMBA: Second. AU: Okay, so the motion was to accept the SMA permit with the amendment stated by staff and motion was made by Commissioner De Luz and seconded by Commissioner Galimba. Okay, so we made the motion and got a second Commissioners do you have any discussions? LIN: Chair, I believe Director Kern has a question. AU: Go ahead Commissioner Kern. KERN: I get to be a commissioner again? AU: Aw, I'm sorry. KERN: Lucky me, I missed those days. No worries, hello everyone, nice to see you all. I just wanted to talk really briefly about this public access conversation. It's a tricky one. Certainly, some heartburn around it from a Planning Department perspective we don't want to block or limit public access that's for sure. Also want to make sure that what we're promoting or encouraging is safe for folks and with hearing what the applicant was willing to work with the fishermen and with the group. Thus, the language that we came up with is presented the way that it is I figured that there would be discussion today amongst the Commissioners and the applicant and possibly some tweaks so that language. It's like I said it's a tricky one for all the reasons that Jason says, and the safety side of it and we're actually going to be having some other meetings on the side to really define where those lines are drawn. As far as opening it up and then liability to the owner, to the County, and that was some of the concern on our side from the County side of what liability exists, if it's mandated. But I would like to also point you out to Condition 3 where the applicant has to substantially comply with the representations that are made. So, that's another backup as far as they've expressed very clearly what their plan is, how they're going to go approach this with obviously a little bit of room to massage it, so it works. And so, with that I feel comfortable that those fishermen that use that place will be honored and that to me is really that intent or a mechanism for others that might want to fish and go taken down there for them to do that. But really open to a dialogue around this if you folks want to adjust a little bit, I'm not going to have any issues with that. Just wanted to share that this one's a bit tricky and there was a lot of thought that went into it and happy to hear what everybody has to say and we're going to be working further to again kind of understand better ways to make this happen. Thank you for sure but thank you for the opportunity to share. 8 EXHIBIT B AU: Thank you for your comments, Director Kern. I have a few comments for Commissioners. We all live on this island, and I would love to hear from Commissioners that live in that area. Public access for fishermen or opihi pickers,just people that want to go to the beach is important, but safety is a huge issue, and those pictures look very dangerous. And I applaud the applicant and the representatives to create a way to keep that access alive for these fishermen that have been there for 5 generations, but the liability is a big concern of mine. We would hate for something to happen and when it does happen, we can put all the safeguards in place for the applicant and for the licensee people that are going to be able to use this access. But we just really don't know, and I guess, maybe I'd like to hear some thoughts and comments from other Commissioners. DE LUZ: Good morning, Chair. In the past, my family did have a similar situation when we lived on the Hamakua Coast. The one thing I would recommend, though, is to what they do with hunters is have a log when people come and go, because you never know, even though it may be a small community. That would just be my recommendation for the landowner is to have them log in and out. So, you know when people will access the property, but I do agree that it looks very dangerous. In the past, similar situations where you got to be a really good climber, even if they are repelling down there because the ladder, I'm assuming was put by someone else way back when. But even that usually we would have to use safety ropes, because the ladder you can always fall back. So, I guess, my basic belief is that this group of fishermen have been going there for so long, I guess, my assumption is they know of the risk and the potential risk. So, I applaud the landowner to recognize the fact to still allow them there. I think it's very dangerous, but if they're willing to take the risk then I'm okay with that. Thank you. LIN: Chair, I have a comment. AU: Yes, go ahead Commissioner Lin. LIN: So, I'm not a full-time fisherman, a recreational weekend fisherman, but looking at that descent as fishermen, we kind of gauge our environment. If the waves are too big, if the cliff is too tall to go down, we know our own experience. Even if it may be the best place to catch menpachi or whatever kind of fish, I think, each person they know their experience in that area. Because I wouldn't go down there because I'm not very good climber, and I'm not looking for big fish. I think just like Mr. De Luz said, those people who are using this trail are probably the people have been using it for generations and they know how to get down there safely and properly. So, I think a lot of the conditions and the methodologies that Mr. Knable and the applicant is going to be using will help with that. But as a weekend fisherman and I wouldn't go down there just because I know I couldn't get down there. So, I think the fishermen who go down there, they know. AU: Thank you Commissioner Lin. I have a question for Mr. Ron Terry. Mr. Terry are you there? Hey, Ron. TERRY: Yes, yes, hi. 9 EXHIBIT B AU: So, as the applicant moves forward with this permit and if it does get approved, and an agreement is made between the fishermen or the fishing organization and the landowner. How is that going to affect the EA? TERRY: Well, I'm Ron Terry and I live in Hilo. I think I had to say that right? AU: Yes. TERRY: And the EA very much took it into account, and it assumed that fishermen would have access of some form or another. There's actually quite a bit of details in it if you consult the EA. I don't think there'd be many changes, the only change would be if they didn't allow access to fishermen, because it was explicitly called out in the EA. So that would be to me a different project if no access was allowed which I think Director Kern was alluding to those substantial representations are made in the SMA. They're also made in the EA, and we identified that as the principal potential cultural impact because that's the cultural use of the property is fishing. So, there would be impacts if fishing we're not allowed, and the EA would no longer be as valid as it was before and that's something that we pointed out to Kelly it's a substantial commitment that's made in there to allow access. I'll just add that the first time I looked at that ladder, I was intending to go down it and I immediately said no! I go a lot of places around this island, and I just said that's not one of them. And honestly, even the cliffs edge there even just looking down the ladder just to get to that point is not safe and whoever took that picture is pretty brave because you are taking some chances being there. The ironwood needles, you can slip right down, and I just want to say that just public access to any old tourist would be very irresponsible there. AU: Thank you, Mr. Terry, for your answer. I'd like to go to another question to staff. So, that access is very dangerous and if any fishermen were to continue to go down there, there needs to be constant maintenance, upkeep, maybe a new ladder, and any type of improvements. So, how's that going affect the County side and is the landowner going to be responsible if there's a violation or something? Is a landowner or the licensee going to be responsible for any violations that occur down there? KERN: Yes, Mr. Chair. As its stated now that would be really on the landowner to maintain, manage, work with the fishing association, and work with the fishermen on all of that. That's kind of one of the reasons we were somewhat selective on the language, because what we didn't want to do is turn it into a county situation which is really going to be a whole other ball of acts that we don't want to deal with, can't deal with right now. But as Mr. Terry had pointed out this has been used. An idea that I have potentially is we could even maybe Chair amend that condition and say the applicant has committed to working with the fishermen to allow access or has represented that they've allowed to work with them. Maybe strengthen a little bit more just for the representations that were being made. My concern also was that it's opened up to all fishermen. If you don't have that experience in the Hamakua Coast and you're used to fishing, maybe, like Old A's or O'oma it's very different 10 EXHIBIT B and just as Commissioner Lin said not all fishing is created equal. So that was the goal is to maintain that those folks that use it on a consistent basis or how folks that they bring in and want to use underneath their direction will have access to that. So maybe it's something the Commission wants to consider of changing that language a little bit. I still feel like that would keep the intention and also maintain the liability separation. Attorneys feel free to throw something at me at any time if I misrepresent that. Thank you very much. AU: Commissioner Galimba? GALIMBA: Thank you. I think the other side of it but maybe I just wanted to bring up that I think you guys are threading the needle here as mentioned in the recommendation is the whole patch thing of continuing traditional customary right. So, there's the safety part but there's also the part that it has been used for a very long time, so needing to be sure that we comply with that, and I also would be very happy to hear the lawyers have any thoughts on wording that would thread that needle. CAMPBELL: I guess that's aimed at me, thanks guys. Given the circumstances that the applicant is in that I heard from Jason that they don't actually have the ability to get people to their property. I think that forcing them to open it up with a"shall" kind of language puts them either in the situation where we're going to impose a condition that they cannot meet. In which case they can't move ahead and so it's essentially, I'm going to reuse a term I heard yesterday it's an insidious form of denial. So, if we throw a condition at this project that says "thou shalt allow public access to your property" and we know that because of the nature of their easement and I, admittedly, I have not looked at this easement documents. So, I'm going on Jason's representation, but I wouldn't be surprised if he's correct that they don't actually have the right to open the easement access up to somebody else. They can have their own personal guests there and they're interpreting that as sufficiently broad to allow them to include a reasonable number of fishermen. If we say thou shalt do this and we know they can't do it, then we're effectively denying their application. On the other hand, Michelle is correct, that we do need to take traditional customary practices into consideration that's an absolute standard that the Commission always should consider, especially when you're looking at essentially undeveloped land like this. And so, I think the language as far as we've gotten it is a good threading of that needle. If you do want to massage it a little bit like Director Kern said to make it a little bit more solid about living up to your representations, working to cooperate and maybe something about that and this may or may not be appropriate I'm going to leave it to the Commission to think about. If the easement is able to be changed in the future, then maybe they would have to put something a little bit more solid in place, but we can't require them to give us something that they don't own. So, I think that is the really tricky part of this one, without even taking into consideration things like safety factors about is it a good idea to let people in here to go on something super dangerous without even considering that, are we, we want to make sure that we don't impose a condition on this applicant that works as effectively a denial if they cannot live up to what we require of them. Unless it's your intent to deny it. 11 EXHIBIT B AU: Thank you Ms. Campbell. Any other Commissioners? Do we have any further discussion Commissioner Lin? LIN: Yes, I just think that the applicant and the representatives here have shown that they are committed to providing access to the fishermen and they'll try their best to regulate and help protect those who are coming through. I just saying, "Hey, you guys know want you're going into and we're not liable if you do things that are beyond our control." We can't control, if more pine needles are falling on the floor or if part of the cliff is a little bit more slippery than usual. But I think the applicant has shown that they are willing to put in some conditions themselves for those people who are coming through. That will be a further discussion beyond us as a Commission is between them and the people who are coming through their property. AU: Thank you Commissioner Lin. Any other Commissioners discussion or comments? Commissioner Aguinaldo? AGUINALDO: Thank you Mr. Chair. I agree as well with the applicant and also with the representative that they gave a thorough explanation, as well as their presentation, as far as the liability factor as the landowner, as well as the liability that is in place under the property and as well as on the easement. I presume there's as stated that they're going to have a liability form and like Commissioner De Luz also indicated of some form of log in like hunters if there's going to be a gate. In addition to that is placard with again a reminder of the risk liability what they're getting themselves into. If there's one at the gate and one kind of closer to the shoreline before the ladder and before they got a parrel down. It's repetitive, where hey, you guys taking risks, and it's not open to the public. Which is you got to check in and I think they handled it well the applicant and all the representatives that they have thoroughly explained everything. As far as the liability, I know everybody's concerned was safety. Yes, there is safety to think about but there's also a risk that they're willing to take the representative and the applicant. So, I just wanted to comment on that. Thank you. AU: Thank you Commissioner Aguinaldo. Mr. Roy did you have something? ROY: I just wanted to add for the Commissioners review that the applicant has stated that they would put signage up noting the difficulty, noting the hazard so there'll be clear signage to any fishermen that will be coming down there. AU: Okay, thank you. Mr. Knable you have your hand up. KNABLE: Yes,just to kind of reiterate the point that Alex just made, we were committed to 6 to eight(8) warning signs placed along the corridor areas that we feel will be the most effective. And to make it very clear that this is a dangerous cliff to be accessing for fishing. In terms of the question on the management components that Commissioner De Luz has raised. We've been having some initial discussions with the fishing association and similar to what Councilmember Kimball has said. We're envisioning having a gate there that will be managed, we may have a combination lock that we may make available to the association, and there will be a registration process. The Makahanaloa Fishing Association they also manage an area in Pepe`ekeo and in 12 EXHIBIT B the Continental Pacific project and they even put-up video cameras to monitor who's going in and out. In case there's some uses that are happening that are not aligned with the rules that were set up, they can come in and get the guys out. So, we're still kind of going through that process, but the idea would be able to log folks in, make sure that they sign the liability waivers and I think with all of that, Kelly should have some assurances and will be comfortable that he'll be protected. And also, that the fishermen will be aware what they're getting into as well. AU: Thank you for those comments. I'm looking at Condition No. 5 and in regard to Commissioner Galimba's concerned about strengthening a language or condition. I'm reading Condition No. 5 and I think it's strong and I think it covers what Commissioner Galimba is concerned about. Is that okay with you, Commissioner Galimba? Condition No. 5? GALIMBA: Hang on a second, I actually closed down that screen, it may take me a little second to put it back up. But I've actually read through the conditions and I'm sure it's fine so don't hold things up on me, while I go open that up. AU: Okay, do we have any other further discussions. If we don't have any further discussions, then staff we are ready for a roll call vote. ROY: Okay, the motion is to approve with the minor revision to Condition No. 3, the date, the SMA permit and conditions, as listed by the Director. Commissioner De Luz? DE LUZ: Approve. ROY: Commissioner Galimba? GALIMBA: Aye, approve. ROY: Commissioner Aguinaldo? AGUINALDO: Aye, approve. ROY: Commissioner Balog? BALOG: Aye, approve. ROY: Commissioner Lin? LIN: Aye. ROY: And Chair Au? AU: Aye. ROY: Motion passes 6-0. 13 EXHIBIT B AU: Okay, thank you everybody. Applicant you will be notified in writing about this decision. So, thank you very much for your time and good luck to you with your project. KNABLE: I appreciate it, thank you very much Chairman, Commissioners, the Planning Department really appreciate the positive approval and we'll keep plugging along to our next land board hearing on our CDUA. Thanks again, have a good rest of your day. AU: Thank you. The item ended at 10:07 a.m. Respectfully submitted, Melissa Dacayanan-Salvador, Secretary Windward Planning Commission 14 EXHIBIT B