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HomeMy WebLinkAbout2022-04-21 Leeward Exh C (Item 2 Hinchcliff PL-REZ-2021-000013) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT APRIL 21, 2022 A regularly advertised hearing on the application of CLINTON HINCHCLIFF, JR. (PL-REZ- 2022-000015/AMEND REZ 05-027) was called to order at 10:58 a.m. via live stream online meeting, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Barbara DeFranco (from 11:21 a.m.), Michael Dela Cruz, Clement"CJ" Kanuha III, Zaheva Knowles, Mahina Paishon-Duarte, and Faith "Faye" Yates (until 11:32 a.m.) EX-OFFICIO MEMBER: Robyn Matsumoto (Department of Public Works) 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), Tracie-Lee Camero (Planner), Christian Kay (Planner), Jessica Andrews (Planner), and Noriko Sauer (Commission Secretary) APPLICANT: CLINTON HINCHCLIFF, JR. (PL-REZ-2022-000015/AMEND REZ 05-027) Application for a five (5)-year time extension to Condition D (Final Subdivision Approval), Amend Condition E(Restrictive Covenants) and Condition F (Restrictive Covenants) to delete the requirement to provide a copy of the recorded covenant prior to receipt of final subdivision approval, and deletion of Condition J(Improvements to Kaloko Drive/Mamalahoa Highway Intersection) of Ordinance No. 06 82, which reclassified 21.992 acres of land from an Agricultural 20-acres (A-20a) to a Family Agricultural 3-acre (FA-3a) zoned district. The subject property is located along the south side of Kaloko Drive at the northeastern corner of its intersection with Hao Street, Kaloko Mauka Subdivision, Kaloko, North Kona, Hawaii, TMK: 7-3-024:008. VITOUSEK: Continuing with New Business, the applicant is Clinton Hinchcliff, Jr., PL-REZ- 2022-000015, Amend REZ 05-027, Application for a five-year time extension to Condition D, Final Subdivision Approval, amend Condition E, Restrictive Covenants, and Condition F, Restrictive Covenants, to delete the requirement to provide a copy of the recorded covenant prior to receipt of final subdivision approval, and deletion of Condition J, Improvements to Kaloko Drive-Mamalahoa Highway Intersection, of Ordinance number 06 82, which reclassified 21.992 acres of land from Agricultural-20 acres, A-20a, to Family Agricultural-3 acres, FA-3a, zoned district. The subject property is located along the south side of Kaloko Drive at the northeastern corner of its intersection with Hao Street, Kaloko Mauka Subdivision, Kaloko Ahupua`a, North Kona Moku, Hawaii Island, TMK 7-3-024:Parcel 008. Deputy Corporation Council Jean Campbell would make a disclosure at this time. 1 EXHIBIT C CAMPBELL: Thank you, Chair Vitousek. Good morning, everybody. This is Deputy Corporation Council Jean Campbell. In the interest of full disclosure and transparency I do want to let you know that I own a lot not far from Hinchcliff property. As you all also know I am not a decisionmaker in this process at all, and so there is no actual conflict, but I wanted to put this on the record, nevertheless. That's it. Thank you. VITOUSEK: Mahalo. We will do a staff presentation by Tracy-Lee Camaro. Go ahead. CAMERO: Hi, yes, thank you. Thank you, Christian. Aloha and good morning, Chair and Members of the Leeward Planning Commission. The applicant before you today is Clinton Hinchcliff. This is an amendment to Change of Zone Ordinance 06 82. The subject property is shown here with the red dot. It is located in the Kaloko Mauka Subdivision. It is located at approximately the 2,200-foot elevation within the North Kona District. The applicant's request. The applicant is requesting a five-year time extension to Condition D for final subdivision approval, amendment to Condition E, the restrictive covenants, and the deletion of Condition J, improvements to the Kaloko Drive-Mamalahoa Highway intersection, of Ordinance number 06 82, which reclassified 21.992 acres of land from Agricultural-20 acres to Family Agricultural-3 acre zone district. Please note that the applicant originally requested an amendment to Condition F to remove the requirement to record the approved covenants prior to final subdivision approval. Staff noted that after reviewing the existing condition that the request is already noted in the existing language of that ordinance in that condition; therefore, the applicant submitted a request to withdraw the amendment request to Condition F. Next slide thank you, Christian—so this is the proposed amendment to Condition E that you have on your screen before you. The Director did go ahead and remove the "fronting existing roads" and replace it with a specific "fronting Kaloko Drive and Hao Street"because that's where the subject property is located. As you can see, the bottom portion is the portion that is being requested by the applicant that"A copy of the approved covenant(s) shall be recited in an instrument executed by the applicant and the County and recorded with the Bureau of Conveyances prior to the issuance of Final Subdivision Approval"; that is being recommended in this current amendment to be removed and replaced with "A copy of the recorded document shall be filed with the Planning Department upon its receipt from the Bureau of Conveyances." This request that's before you is really to be more consistent with some of the most recent rezoning conditions in the area. I just wanted to make sure I noted that. Next slide, Christian, thank you. In addition to requesting the five-year time extension, the applicant is requesting to delete Condition J, which is shown on your screen. This is again to be more consistent with the most recent rezonings in the area. The Planning Director is recommending the removal of Condition J as well as amending Condition L, which is the fair share condition. It's currently being re-lettered to Condition S actually in your Planning 2 EXHIBIT C Director's recommendation, and that's to update the fair share fees at this time with today's current rate. The applicant's stated reasons for the request. The previous landowner, Nimble Inc., sought and was granted the change of zone request in 20, 2006. They began working on compliance with the conditions of approval towards the development of the seven-lot subdivision. In 2010 the current landowner, Clinton Hinchcliff, secured a partial interest in the property. Despite the efforts, the landowners were unable to obtain the final subdivision approval by June 2011, and they unfortunately did not seek an administrative time extension from the Planning Department. This is the County zoning map. The subject property is outlined in red and is designated as FA-3 shown on your screen as a light blue. The other surrounding zonings are Agricultural-20 acres shown in the dark green and Agricultural-3 acres shown in the teal color. This is the State Land Use Boundary Map for the subject property. The subject property, as well as the surrounding area, is located in the State Land Use Agricultural District. The subject property again is outlined in red on your screen. This is the General Plan Land Use Pattern Allocation Guide Map. The subject property is outlined in red, and it's in the, within the designated area as Important Agricultural Lands. On your screen before you, you have the Kona CDP Map. The subject property is located within the Kona CDP; however, it's just outside of the Kona Urban Area, which you can see the red line—it travels in a top to bottom direction on the left-hand portion of your screen that designates where the Kona Urban Area ends. This is the applicant's proposed subdivision map that was provided to the Department. This shows the proposed seven-lot subdivision that, should the approval of this amendment be allowed, the applicants will go and resubmit their subdivision application. This is an aerial photograph of the subject property, which is outlined in red. You can see Kaloko Drive travels in a north, in a northeast direction, and Hao Street travels in a southeast direction, and right at the intersection is where this property is located. It's currently vacant, and it has no structures on the property. This is a site photo of the Kaloko Drive-Mamalahoa Highway intersection facing south. Kaloko Drive is an approximate 22-foot-wide paved road with grass shoulders with an 80-foot-wide right-of-way. The subject property is located about two miles from this intersection. The Planning Director provided the Commission with an amended background report on April 20'', which gave a brief of the Kaloko Drive-Mamalahoa Highway intersection. I hope you guys were able to kind of review that. It just gave you a factual analysis of some of the history of the area and some of the concerns that were raised with past rezones in the area and, in regards to this intersection. This is a site photo of the subject property facing northeast. This is at the intersection of Kaloko Drive with Hao Street. The subject property, as you can see, is currently, it has no structures and 3 EXHIBIT C it's fully vegetated at the moment. The applicant has not cleared the property, and it has stayed like this since approximately 2006. This again is a site photo showing you the views of the subject property. The photo to your left shows the view of Kaloko Drive looking northeast. The subject property is located on your right. As you can see again, as I stated, it is vegetated. The photo on your right shows the view of Hao Street looking south, and the subject property is located to the left, which again is fully vegetated. Right now the Planning Directors is recommending that we forward a favorable recommendation to the County Council for amendment to Condition D, Condition E, and the deletion of Condition J of Change of Zone Ordinance number 06 82. That concludes my presentation, and I can turn the floor back to the Chair. VITOUSEK: Mahalo. We will continue with a presentation from the applicant and their planning consultant, and then we can do fact-finding questions from the Commissioners after the completion of that presentation. So we have Mr. Sidney Fuke, Planning Consultant, and Clinton Hinchcliff, the applicant. Would you please raise your right hand so I can swear you in? Mahalo. Do you swear or affirm to tell the truth on the matter before the Planning Commission—and that'd be you, too, Mr. Hinchcliff. FUKE: I do. HINCHCLIFF: I do. VITOUSEK: Okay, Mahalo. Please proceed with your testimony. FUKE: Sure. Good morning, Mr. Chairman, Members of the Commission. My name is Sidney Fuke. My residence address is in Hilo, Hawaii. With me is the applicant, Clinton Hinchcliff. He'll be there primarily to answer any questions that the Commissioners may have or for which I have no response to. You know, we've had a chance to review the staff's recommendation and the proposed conditions and found them to be acceptable. I'd like to just kind of give you some background in terms of the reason for the request. Mr. Hinchcliff is a local boy born and raised here,you know, in the Kona area. He and the family, you know, acquired interest in the property in 2020, uh 2010 thereabouts, but the property was mired in litigation, and so nothing really could happen until the litigation was completely done, and Mr. Hinchcliff retained full control of the property about in 2016. Then he filed for the subdivision application only to be, only to learn that the, you know, the time had expired, and hence the reason why we are before you today. It's a seven-lot subdivi- it's a proposed seven-lot subdivision. The intention Mr. Hinchcliff has is to, it's a family subdivision, he has two children, he has a nephew that kind of wants to, he wants to be able to convey, you know, like at least three of those lots to family members. In addition to that, his father also, you know, is interested in one of the lots. And at the end of the day, maybe sell two of those lots to 4 EXHIBIT C kind of help recoup the infrastructure costs in developing the property. But for all intents and purposes it's a local boy trying to do something for his family, so, and hence the request. We appreciate, you know, Mr. Chairman, your asking the staff for some history behind the Kaloko-Mamalahoa Highway intersection issue, and as you can see, the State response has kind of like gone all over the map. And so what we are essentially proposing is to have that condition relieved and pretty much like be in tandem with the last rezoning request, which is essentially to have the fair share funds be specifically earmarked towards the improvement to that intersection. I think the staff's report, you know, to the Commission noted that at this point in time there is like about, you know, nearly 677,000 dollars available on the fair share, and with the applicant's proposed development and contribution of an additional 90,000 dollars or so, you know, you will really, the County will essentially have like, almost like about three quarters of a million dollars in terms of trying to do, make some improvements to that area. One of the, I think the last memo from the State kind of suggested to the County that, hey, why don't we all get together, you know, form a task force and figure out how best to use these funds. And I think the best way right now is that, you know, armed with, you know, nearly three quarters of a million dollars, the, my recommendation essentially is to have the County and the State get together to figure out like what three million, what three quarters of a million dollars can do, you know, to improve this particular area. So I think the staff's condition is fair. The applicant has no objection. The staff had also recommended several other conditions, you know, one dealing with, you know, Conditions P, Q, and F [sic] relating to the protection of the nene, the outdoor lighting, and adhering to the Rapid `Ohi`a Death protocols, and, you know, all of which are totally acceptable. You know, there was a Condition K regarding the call for an archaeological field inspection, as recommended by SHPD; well, that study, that inspection was already done and, you know, to the relief of everyone, nothing was found on the property that was worthy of preservation. And finally, I think like, you know, the earlier testifier,public testifier noted that, you know, with the potential of not only seven lots but doubling down of density with the construction of an `ohana or a second dwelling, to which I'd like to kind of note that you have a Condition F that specifically prohibits the construction of any additional dwelling. So essentially, what you see are seven lots and seven dwellings in terms of an impact standpoint. Other than that, I don't have any more to add, and I don't know whether Mr. Hinchcliff has anything more to add, but, you know, we'd be more than happy to respond to any questions the Commissioners may have. Oh, one final thing, I noticed that earlier that Commissioner Kanuha mentioned that he lives in the Kaloko Mauka area, and also Ms. Campbell had indicated that she has property in that area, you know, we would like to kind of like clearly note that we don't find any conflict, you know, in either of them participating in this application and leave it at that. Thank you very much. VITOUSEK: Okay, Commissioners, do we have questions for the applicant or for County staff? Commissioner Paishon-Duarte. 5 EXHIBIT C PAISHON-DUARTE: Thank you. This question is for the County staff. I just want to know, what is the benefit to the County of Hawaii to omit Condition J? JACKSON: Commissioner Paishon-Duarte, I would say there is no benefit necessarily or detriment, either. We are doing it because we have not placed a restriction to secure a building permit on any of the other lots in Kaloko Mauka that have received rezoning, so it's somewhat a matter of fairness that for some reason the County Council put this restriction on this particular lot several years ago, but they haven't done that since, and so it's a matter of fairness to allow these folks to develop the same way others have within the subdivision. PAISHON-DUARTE: Thank you. VIOTUSEK: I just wanted to point out the language in Condition J; it doesn't require that the landowner complete these infrastructure improvements but rather indicates that building permits could not be issued until the infrastructure improvements are completed, and then it goes on to say that if the infrastructure improvements are not completed within 24 months of the adoption of the ordinance, the applicant can proceed with the building permit. So the idea being that someone else, appears as though, someone else would be doing these infrastructure improvements, likely the County through the collection of fair share, but this, building permits wouldn't be issued until improvements are done; if that didn't work out after 24 months, they could proceed. So I don't see that this language actually required the landowner to complete those;just put a restriction on when they could get a building permit. Any other questions from Commissioners? Commissioner Knowles. KNOWLES: I'm just curious about what—this is for the applicant and for Mr. FukeI'm just curious about what the status of the working group is, if you have any information—or for you, Maija that was laid out with respect to the fair share fund balance and dealing with the improvements to the roadways there. FUKE: Commissioner Knowles, I will have to defer that to the staff because, you know, it's really, the State DOT has kind of recommended it that they get together, you know, together with the County, and whether that has materialized—it appears at this point in time nothing has materialized, you know, regrettably. And I think that having like three quarters of a million dollars, I think you can do quite a bit of improvements, you know, to that area. So I'll defer to the Director and the staff on this question. JACKSON: Commissioner Knowles, the working group has not been formed to date as far as I know, and I think perhaps the rep from Department of Public Works, Robyn Matsumoto, can respond to that a little better than I can. MATSUMOTO: Commissioner, from what I'm told we haven't done a working group for this intersection. I know a lot of people think, right, three, you know, three quarters of a million dollars is a lot of money; I asked a colleague how much intersection improvement would cost for traffic signals, and it's a crazy amount of money, it's approximately three million for a full intersection signal. I realize that area is smaller, it may be less, but, you know, with the cost of 6 EXHIBIT C construction having gone up that's what we think it is just based on discussions today. So if it's something that, you know, the Commission feels necessary, we can have those discussions with DOT. KNOWLES: Yeah, I mean, I guess I'm interested in the status of the working group, how the trans-the recent transfer of roads will impact the working group from the County to State. I know this is a State highway, but just what that MATSUMOTO: Yeah, this one, this—sorry—this section still remains State after the transfer is completed. It's more to like make a continuous route around the island for the State, so this one's not affected KNOWLES: And then MATSUMOTO: but we can have the discussion and provide some status at least for, specifically for this one. KNOWLES: Okay, thank you,just wanted to know where we were with that. MATSUMOTO: Mm-hmm. KANUHA: Yeah, thank you for those questions, too. You know, as a resident of Kaloko, you know, I own many properties here, but just for staff, moving forward I think that discussion would be greatly appreciated by many homeowners here, you know, the Hinchcliffs have lived in Kaloko for a very long time and do a lot to support our community. But we do need a traffic signal down there. And I believe DOT and the County and the State need to get together, and we can get a working group to move this forward. I believe there are more funds that are available. I'm not exactly sure the number; I was told 1.1, now I hear 640 thousand. So that's just a thing that I think we should all move forward and, you know, and get a collective group together to move that forward. And I, you know, in my opinion I don't think we should hold it on the landowners per se because there's been many other people that have come up here to do other things that were, you know, more for a benefit of their own pocket and they have, you know, nothing that has been done to secure that on the bottom. So that's my opinion. I just wanted to add that in there, and I think if we can get that group started and, Zaheva, thank you for pointing that out as well. [At this time, 11:21 a.m., Vice Chair DeFranco joined in the meeting.] VITOUSEK: And I'll welcome to the commission, to the meeting, Vice Chair DeFranco. DEFRANCO: Thank you, Mike. Sorry I'm late, everyone, excuse me. VITOUSEK: No problem, we just started, we just completed the presentations on Agenda Item 1 from staff and from the applicant, and we are doing some questions now. A follow-up questionoh, go ahead. 7 EXHIBIT C DEFRANCO: Sorry, I just need to disclose that I am a friend of Clinton Hinchcliff, and we are neighbors in a work area in the new industrial area. I feel that, even though we have a friendship, that I can vote, you know, in a good way, in a neutral way and understanding, and in a fair way. VITOUSEK: Okay, mahalo. In following up the question from Commissioner Knowles to Robyn, Department of Public Works, could you give us a critical path for the construction of these intersection improvements? In the documents it indicated that the next step that was needed was an updated traffic impact analysis report. MATSUMOTO: Yeah, that would be good because of the timing, you know, but it, so to justify that there is a need for a traffic signal at this time, right? So after that's completed, and if it does recommend that one is needed at this time or within the next 10 years, right, because they forecast for 10 years and 20-year forecast, then they determine if, you know, are we going to have the money to do the design work, right? As part of the design work you have to probably do, you know, environmental assessment, because you are going to want to, you know, probably widen that intersection just based on the configuration it's at right now; it's kind of, you know, it's definitely not a straight T, so that's going to have to be taken into consideration, you know. If you are going to have to widen it, it's going to have to be, there is going to have to be a subdivision done as well for, you know, acquiring more land in the corners, and then the design work for the traffic signal and then construction. I can't tell you how long it would take, though, maybe two years approximately. VITOUSEK: So, looking at a TIAR, Environmental Assessment, acquisition of land, design, and construction, that 600,000 is not going to go very far. MATSUMOTO: No. But I mean that's to say if, yeah, if we are only going to use the 600,000, right, that'll just be a portion of the design work, and the State and County or whatever other funding would have to come up with the rest of the money for the design, as well as the money for construction of the intersection. I do know that if we get federal funds, we have to do I think a NEPA, so it's a little more detail oriented environmental assessment, so, you know, that would affect also the timing and the cost. VITOUSEK: Which, but that would sort of dovetail with the 343 EA MATSUMOTO: Yeah, it just, it just costs more money. VITOUSEK: Got you. MATSUMOTO: Yeah. VITOUSEK: Okay, also would trigger the Section 106 requirements. But my question is—well, I guess we have a problem where there's cumulative impacts from subdivisions like this in an area that was initially intended to be 20 acres. As it has come down, we've in some cases tripled the density without improving the infrastructure. A lot of that's done already. And there has 8 EXHIBIT C been the fair share contributions, but that obviously doesn't add up to the amount that we need to actually get that done. Is there a mechanism such as the creation of an improvement district that would MATSUMOTO: That I'm not sure. I don't know the details of that. VITOUSEK: Okay. Does anybody from County Planning Department know if such a mechanism exists for creating an improvement district where that can be funded by some of these projects that have created this need? KERN: Yeah, Mr. Chair, Zendo Kern here. There is the possibility for an improvement district; it would have to go through the process and get, you know, approval from the community. I don't have the exact percentage off the top of my mind. It usually starts with a Council action. But that possibility does exist. I think one of the challenges here is the jurisdiction with that being a State road. I, from my understanding is that they are a bit more open to the conversation now than it was previously, and so I think getting the working group moving forward and actionable I think is probably one of the best first steps, because it may be able to resolve, may be able to get some federal money. If not, maybe the conclusion is an improvement district of sorts. So I'm happy to help, yeah, I'm happy to help. VITOUSEK: Terrific. The, you know, critical path item one is the updated traffic impact analysis report, and maybeI don't see that there was any updated traffic impact analysis report done as part of this application. Is that correct? JACKSON: That's correct. There wouldn't have been a trigger for it because traffic studies are typically triggered if there is going to be 50 or more peak-hour trips. VITOUSEK: Fifty or more. JACKSON: Yes. This would generate about seven peak-hour trips. VITOUSEK: Okay. And then I guess the question for the applicant is if you guys have considered maybe doing this traffic impact analysis report as, in lieu of the fair share contribution, so that it could get that ball rolling, and providing one of the critical path items directly where I think would go farther than just writing a check for the fair share contributions. FUKE: Well, Mr. Chairman, I think that, you know, the County already has like about 677,000 dollars, you know, in the bank. So I think it would be, you know, very money well spent if the County were to appropriate the funds, the needed funds, to do the traffic assessment or the traffic study. That study will then determine, you know,possibly like mitigation, whether it's going to be short-term or interim mitigation, to, you know, the so-called the BMW version, which is probably like a traffic light. The traffic light might be kind of problematic largely because it falls under the jurisdiction of the State, and we know how the State is averse to having any signalized intersection, you know, along their portion of the highway. If you look at this intersection as opposed to like an intersection at the Ka`iminani-Mamalahoa Highway, I would venture to guess that you have more movements at that intersection than you do at the Kaloko intersection, and 9 EXHIBIT C yet you don't have traffic lights at Ka`iminani, and part of the reason why, you know, it falls under the State jurisdiction. But, nevertheless, there were some mitigations that were taken, you know, at the Ka`iminani intersection to kind of enhance, you know, some of the safety aspects. So, you know, I'm looking back again to a report that was prepared by, you know—and thanks to you again for asking the staff to generate all of this but, you know, Leo Fleming, Leo Fleming, you know, the late Leo Fleming, had prepared a traffic assessment with mitigation dealing with what can be done, you know, withI think at that time they had collected, you know, 300-somewhat thousand dollars—and so maybe that assessment, you know, which you already have the funds for, can be designed to have a traffic assessment with a proposal for both short-term and long-term mitigation, and based upon that then you can make a decision, the government can make a decision, where they need to have, ask the, you know, for funds from the State or funds from the federal government to fully implement it. So I mean, you know, that's kind of my thought. But, you know, whether the applicant pays the traffic study out of the fair share or not, you know, to me I think it's kind of like immaterial, because he is going to have to make the payment anyway. All I'm saying is that government already has funds, you know, right now, so go ahead and spend it. VITOUSEK: Right, and I see that, what I'm, what I'm looking at is the fact that those funds have been sitting there since 2005 and not spent, and so for us where we have the opportunity to say, hey, we can get step one done now, and then get the ball rolling. Since he has to spend the money anyway, we can, we can do it now, get at least one thing checked off the box, and then government can work within their, their remaining funds and other mechanisms that are available to them. But, you know, we would have at least advanced the cause of improving this intersection in some capacity. And I agree that, you know, I don't—I'm not a traffic engineer—I don't know that a light is appropriate or necessary; that would have to come from the type of analysis that we are requesting, I think. Commissioner Yates. YATES: Sorry to say but I have to leave. I wish I didn't. VITOUSEK: Okay. YATES: All right, thank you so much. VITOUSEK: Thank you for being here. Mahalo. YATES: Thank you. VITOUSEK: Aloha. Nice that we have new members so we can do that. Okay. Commissioner DeFranco, Vice Chair DeFranco. DEFRANCO: Sorry that I'm sort of late here understanding it all, but so right now I am understanding, though, aren't they redoing all of the road, Palani Road, and there is no, nothing on the books right now to do something about that intersection while they are doing all this paving of Palani? This is a question to the County. 10 EXHIBIT C MATSUMOTO: Commissioner DeFranco, I'm not aware of the paving for the Highways Division, so I can't speak to that, but there is no design plan for that Kaloko intersection that I'm aware of. DEFRANCO: Okay. All right, so all of this money that's been there for all of this time has just sort of been sitting there in the bank, waiting for some, some group to come together and say let's look at this and let's get this done. So, is that right? County is not looking at doing this themselves. VITOUSEK: Would the, does the County have any preference on whether the applicant would proceed with commissioning this traffic impact analysis report in lieu of the fair share contributions for that or would you rather take the money and run? MATSUMOTO: From the DPW perspective we don't have any preference either way. I mean we should definitely have a discussion with the State because, like Mr. Fuke said, right, the State has control of that intersection. VITOUSEK: Yeah, so the discussions with the State being, or serving, what end? MATSUMOTO: The purpose is, you know, even if we do the report, are they open to the idea of you know, putting in any improvements? VITOUSEK: I mean if, it seems like they want improvements to be constructed for them and given to them from the correspondence that's been provided; there has been a pretty good history of them requesting that this be done at no expense to them and handled by the County, as the County has allowed the change of zone to increase the density. So it seems from the correspondence—and we don't know, of course, because they haven't provided updated correspondence on how they currently are but the history of the correspondence indicates this is an issue that they want to have resolved and they want these improvements, so it would seem as though that would be something that we should all be working towards. Commissioner Knowles. KNOWLES: All right,just a point of clarification, and forgive me if this is a silly question, I, is it within our purview then to make a recommendation, if we decide that we want to do that, that the working group, that that requirement continue on as part of the permit? I'm just trying to figure out the mechanism, as you were saying, you know, what's the, what's the clear line, what's the next step? Is that something that's within this this Commission's purview? VITOUSEK: Maybe, maybe Maija can answer that best. JACKSON: I think it is within your purview, but it's an interesting question since it's not going to be a condition of the permit put onto the applicant; it's more something that the Commission is asking the County to do. KNOWLES: That's why I'm asking the question because it's not, it's not, I mean it's sort of in the condition? 11 EXHIBIT C JACKSON: Right. I think it's a matter of getting Public Works and the Planning Director to agree to the Commission to go ahead and do that and engage DOT in that working group. KNOWLES: Okay, thank you for your answer. VITOUSEK: [Inaudible simultaneous speech] Go ahead, Mr. Fuke— FUKE: No, I'll defer to Director Kern. VITOUSEK: Yep. KERN: My feeling is to, you know, specifically condition this application for the larger issue isn't really the right pathway; I think the pathway would be to collect the funds, put into the fair share but make a concerted effort with Planning and DPW and State DOT to push forward on this and find a solution, and that could start with, you know, traffic impact analysis report. What I would hate to do is spend a bunch of money on studies that would potentially then get stale and have to redo. So I'd like to, you know, see a pathway where we can complete it. I think that's been that the challenge all of these years is that there just hasn't been enough money to actually get it across the board or the will. Obviously, there is a fair amount of money stacked up in there to probably cover a lot of the soft costs but really needing that commitment whether it be County or State to actually do the construction or what that traffic mitigation would be whether it's, you know, pocket lanes, turn lanes, merge lanes, etcetera. That would be my feeling. And, again, it would be hard to put that into the condition, but from the Planning side of it we are happy to make that effort and work collaboratively to find some type of solution. FUKE: Mr. Chairman, I was just going to try to respond to Commissioner Knowles' question. My suggestion is that, you know, if you look at your agenda, there is this Planning Director's Report at the end of the agenda, and perhaps like a statement could be made that the Director provide an update in relative to the so-called collaborative effort between the State and the County relative to, you know, this subcommittee, and, you know, in that way the Commission will, you know, sort of like light the fire under the respective departments, the fire, you know, to get something going. So, I mean that's my recommendation to have that as an obligation on the part of the Director or the Department to provide an update to the Commission. VITOUSEK: So, essentially, the Commission would be putting a condition that would be the responsibility of the County Planning Department to uphold? Is that correct? Is it—normally the conditions are for the applicant. FUKE: Yeah, I'm, no, I agree with Director Kern in a sense that, you know, it's kind of hard to structure a condition that would, on, on this application to make the applicant be responsible in coordinating such a meeting when actually it's the responsibility of government, you know, rather than the applicant, because the applicant has no control over that. My suggestion is just to have the Commission ask the Director or the Department of Public Works to provide you with periodic updates in terms of how the funds are being used and what has been done, you know, to improve that area's intersection, you know, so on and so forth, so. 12 EXHIBIT C VITOUSEK: Commissioner DeFranco. DEFRANCO: Yeah, I agree with Mr. Fuke that it shouldn't be put on the applicant but—and I think he was, I think commission- I mean, Mr. Kern was saying you do it sort of at the end of the meeting; there is a place where we can create this. And I think that what we should do is appreciate Hinchcliff for lighting this fire for the community to get something done, you know; like this is, this allows us to focus on something that we can do. I think he should do his fair share, contribute the fair share like Mr. Kern said, and then, and then in addition to this but not having to do with this application, we should task, you know, a working group and task the Planning Department to, and the State, to get together and do something with this intersection. VITOUSEK: Director Kern. KERN: Thank you, Mr. Chair. So, yeah, my suggestion is very much in alignment with Mr. Fuke is that if we put, you know, as the Commission, say, make a request that we give an update, say, in two months, on the status of this discussion, and by then we can pull together the parties to have that begin the discussion, formulate the group, and then more or less it's kind of an accountability type of thing, right? So we can come back and say here is where we are at, here is what we are thinking, and where we are moving to, and then we can have another follow-up on that afterwards. That could be a good option. VITOUSEK: And that's not a condition on the permit; that's just a commitment from the Planning Department. KERN: Yeah, that's just my word which I will keep. VITOUSEK: Cool. Okay. Commissioners, are there any other questions regarding Item J? Are there any other questions on any other of the agenda items? I mean not agenda items, the conditions that are being requested from the Planning Director. I have a couple questions. What is the, what is the reason that we want to delete the condition to eliminate the recording of the restrictive covenant prior to final subdivision approval? FUKE: Okay, the applicant is making that request. You know, it's not to avoid having it recorded, but the way it's structured right now, he can't get final until he can produce a recorded document. And sometimes, you know, if you, if you've had experience with the bureau of conveyances, it can take a while before the recorded document is actually recorded. So what we are suggesting is that once Planning Department approves the document to be recorded, we can submit it but don't—you know, because the document has already approved and it's going in through the recreation process but we are asking not to be held at the mercy of the Bureau of Conveyances before we can get final approval. VITOUSEK: Okay, you know the language in the conditions does indicate "shall," so if it, we know that it must be done. 13 EXHIBIT C FUKE: It will be done, yes. VITOUSEK: Yeah. The other question I have is, so the, substantively, the restrictive covenants create 80 percent of the lot to be retained in forest, but it doesn't provide a clear link in my opinion to Condition G and the forest management plan that would be proposed for the lots within the subject property; I would think that the lands that are bound by the restrictive covenant to preserve 80 percent of forest would be the lands that are following the forest management plan. Is that correct? Is it? CAMERO: Yes, I believe so, Chair Vitousek. VITOUSEK: Okay, so, perhaps indicating either in Condition G or D and F that the forest management plan applies to the lands that are included in the restrictive covenant? Would be a good thing? What do you think to that, Applicant? FUKE: I think it's already covered by Subsection 2, because the forest management program which, you know, talks about this management plan, you know, which is the forest management plan is part and parcel of the forest management program, so, and that has to be recorded with the Bureau of Conveyances, so I think it's consistent. I don't really feel like there is a need for any further amendments to that condition. VITOUSEK: I mean, for me I just, you know, we see that the forest management plan needs to be recorded and we see that this thing needs to be recorded, but to me I don't see the clear link between the two of them that this forest management plan is covering that 80 percent of the property. KERN: Mr. Chair, are you proposing something then stating that the forest management plan covers the 80 percent of the remaining something VITOUSEK: Yes KERN: simple like where it's a little bit more pointed and not— VITOUSEK: otVITOUSEK: Yes KERN: I feel it's very much implied, but if you are concerned about that, I wouldn't have, I don't think any of us would have an issue with adding something to that effect. VITOUSEK: Yeah, I think FUKE: Yeah, I don't think the applicant would have any objections to that, because that's kind of like our understanding anyway, so VITOUSEK: Yeah FUKE: if you want it to be explicit, then it's fine. 14 EXHIBIT C VITOUSEK: I definitely appreciate the language being direct in there. And Deputy Corp. Counsel Campbell, you have your hand up? CAMPBELL: Hi. I just want to give you a little bit of background that might be helpful. So long as that forest management plan is recorded against the property, it's recorded against the entire thing, so whatever the forest management plan says is going to the Bureau will record it against the entire lot, so it doesn't even, once it's recorded, it applies to everything, the entire property. So, and then it's just whatever the terms of the forest management plan itself say, which I imagine are, you know, preserved 80 percent of the forest within each lot, but the forest management plan itself, once recorded, applies to the entirety of the property. Is that, does that make sense? Am I explaining that well enough? VITOUSEK: Mm-hmm, yes CAMPBELL: Just a by way of background in case that's helpful for you. VITOUSEK: Definitely. And then, you know, the background report doesn't have a detail for a fauna analysis, but it does indicate in pictures and all that there is pretty extensive invasive species population, invasive plants, silver oak, ginger, Christmas berry, all of that within the forest portion of it, and, you know, there is not a tremendous amount of value in preserving invasive species. Is there any idea of what you are hoping to accomplish with the forest management plan? FUKE: I think, my understanding is that the idea, you know, you have predominantly `ohi`a, you know, grove of`ohi`a over there, and you are trying to kind of retain or propagate the `ohi`a forest in that area . And I would imagine that the, your forest management program, if they are in fact invasive species where there is like waiawi or whatever have you, that the management plan would specifically address in terms of how to get rid of them. I think the focus is really like just trying to create that forest and, you know, retain that forest and to enhance it. VITOUSEK: Yeah, as I, you know, looking at KANUHA: So, Mike VITOUSEK: Go ahead. KANUHA: Mike, as a Kaloko resident and, you know, my property being, you know, dedicated Native Hawaiian Forest Reserve, you are able toobviously, you are stuck with how much land you can clear for building purposes. But in removal of invasive species, you can go and remove and replant whatever you want for native Hawaiian—we started doing that on our property when I bought this 10 years ago, you know, we started doing that. So it's, you know, it's the constraints, and it's kind of, the forest management plan, they like seeing, you know, obviously the waiawi, Christmas berry, that, you know the reintroduction of`ohi`a forest because this is a watershed for our community, but it's one of the last native Hawaiian `ohi`a forests here on the west side. So just moving forward to answer that question, I know with the forest management 15 EXHIBIT C plan, it is up to the owner, and there should be some, you know—it could be clarified but, yes, clearing out and replanting is what is necessary. VITOUSEK: So, I mean the thing that I am thinking here is, on the large scale, is that this land is zoned agriculture, but we are in essence stopping any potential agriculture from happening, with the idea that the proliferation of native forests and creation of native habitat has a value to the community equal to the agricultural value, equal or greater than the agricultural value of the property, and so finding a way to see that vision realized where this is actually adding that value by increasing the native forest, and not just simply carving out house lots within an invasive forest, is the key, and I think that forest management plan is really crucial in doing that. I would have loved to have seen what is being proposed so that we would have an idea of whether the forest management plan is worthy of eliminating the agriculture and allowing for the increased density. And, you know, maybe if you guys can just give us idea of your vision for what you want to accomplish on the property in terms of restoring a native forest or anything like that, that would be helpful. JACKSON: Chair Vitousek, are you directing that to Mr. Fuke or to staff? VITOUSEK: To the applicant. FUKE: Okay, for that, I don't know ifI'm looking to see whether Mr. Hinchcliff is still on, but apparently, he's not, I don't see his name on it. VITOUSEK: He's here, yep, he's here. FUKE: Oh, I'm sorry. Mr. Hinchcliff, you want to answer this question in terms of what you envision in terms of the forest management component? HINCHCLIFF: Sure. I mean, regarding that, I mean, number one, I think for what I want to do with my family, you know, is, of course, we want to grow things to, you know, to be able to eat from and things like that, so I you are getting at if I'm looking at possibly clearing the whole thing and doing some kind of infrastructure, no, I mean I'm looking actually to preserve whatever is there and just build us a pad for a home and the rest is for preserve. If we need to take out any invasive species like CJ Kanuha is saying, you know, that's what I'll do and regrow something else in there. So that's kind of my plan; I don't have a full plan, but that's kind of what I'm looking at. VITOUSEK: Basically to, you know, clear the areas for the home and then retain as much forest as you can and then clear invasives from the forest replant with natives. And then would you be doing the, like, agricultural type stuff within that 80 percent or within the 20 percent? HINCHCLIFF: Probably most likely within the 80 percent is what we'd be looking at, you know, because like they said if there is because I did read their report, too, and any invasive species, you know, I mean, take that out, and then,you know, either grow coffee or different things, you know, dry land taro or things like that. That's what I would, I'll see me doing. 16 EXHIBIT C VITOUSEK: And does that fit with the 80 percent, the language in here about 80 percent retention forest? HINCHCLIFF: I would have to refer it to Mr. Fuke. FUKE: Yeah, it kind of reads right now like 80 percent, well, the way it reads right now, "If more than 20 percent of the [subject] property has been cleared or grubbed prior to the submittal of the Forest Management Plan"but at this point in time that's really not applicable because the property has never been cleared or grubbed, but anyways "or the recording of the restrictive covenant(s), the reforestation program for any cleared or grubbed area(s) in excess of the 20 percent within the subject property shall be substantially implemented prior to the issuance of Final Subdivision Approval." Bottom line is that that condition is fine, and it's really like immaterial because there is no activity on the property. So, retaining 80 percent pretty much like allows you, you know, the applicant more than half an acre for a building site and the driveway area, which would be more than enough. I think what Mr., the applicant, you know, Hinchcliff has mentioned is that if you clear the `ohi`a forested area, you know, there is a potential that you could have other type of, ag related type of products, you know, under the, understory, you know, whether it's going to be plants, you know, maybe such as like anthuriums or whatever; however, with that 80-percent restriction I think intensive agricultural activity on the property would be very difficult to achieve, and hence the reason why is that if you look at the request of the zoning, the requested zoning is FA, you know, Family Agriculture which is the intent, you know, anytime you have properties that are less than five acres, then the desired zoning is FA for Family Agriculture rather than pure Ag zoning. And in this case here, as Mr. Hinchcliff, you know, he can attest, you know, he has two children, his father, and one of his nephews that they are pretty much like, the project is cared for, you know, towards that. I don't know if I have answered your question directly, Mr. Chairman, but it's as best as I can right now. VITOUSEK: Commissioner Knowles. KNOWLES: Thank you. I guess this is for the Planning Commission. Just following up on what you are saying, Chair, is, you know, it talks about a forest management plan submitted for review and approval by the Planning Director in consultation with State DLNR. And it looks to me like the State DLNR has some very specific criteria for what is included in a forest management plan. So I'm just wondering, Planning Director Kern or Ms. Jackson, what did you envision with respect to this condition? I mean, is it, is this actually as the Chair is saying, which is a sort ofI mean one of the DLNR criteria is native reforestation—so is that the plan with respect to this condition that you will work with the applicant and the State DLNR to configure this? JACKSON: Yes. So we've reviewed many forest management plans for the Kaloko Mauka area, and all of them are reviewed by the DLNR Forestry Division. They are supposed to be prepared kind of following their stewardship guidelines for retaining as much native forest as possible. And so, as Mr. Fuke mentioned, I think the intent of the condition was to retain at least 80 percent of the native forest or improve the existing forest to remove invasives. So doing something like anthuriums under the native canopy could be some viable ag, but to actually 17 EXHIBIT C remove native forest and put something else in its place was not the intent of the condition. Did I VITOUSEK: Commissioner DeFranco. JACKSON: answer your question? [Commissioner Knowles nods in affirmative.] DEFRANCO: Right, so if the 80 percent is the forest, so the 20 percent that he has is where he would plant his avocado tree or his coffee or something that isn't a native plant. Is that right? It would be included in that 20-percent area. So if they want to plant citrus trees or something around their homes, then that's okay, but the 80 percent, if it's going to remain in the forest, has to remain with the native Hawaiian plants. Is that correct? JACKSON: That was the intent of the condition, and that's what we have seen in the forestry management plans that we've reviewed. KANUHA: And like I said earlier, yes, that is part of the stewardship plan for any homeowners up here is to revitalize the native Hawaiian forests. So, yes, it is ag land, and agricultural stuff could be done on that 20 percent that's cleared. What native, you know, Department of Forestry and Department of Land and Natural Resources, what they want and are sitting on it is to rebuild our native Hawaiian forest. Just a little clarification because I have all this in writing. DEFRANCO: Thank you, Commissioner Kanuha. That's what I wanted to clarify, too, because, Clinton, I thought I heard you say that, you know,you would, might be planning coffee or other things there, but I just wanted to make sure that in this overall plan, we understand that things like that are in the 20 percent; the 80 percent is for forest and the reforestation of native, the `ohi`a and whatever, maybe some anthuriums or something like that, but coffee I don't think would grow, would be part of that. Is that right? KANUHA: Yeah, yeah, Commissioner DeFranco, on our, you know, moving forward, like I said, as an owner and having the management plan here before, you know, and put in places as an owner, that's what it is for here. So, you know,putting restrictions of ag, I guess I would say agricultural uses to a native Hawaiian forest, there is a catch-22, so, you know, I am pushing forward, you know, here you got to promote this is Ag is kind of, you know, their native Hawaiian forestry is technically there, that's why this is zoned Ag, you know. I know we have the zoning, but what happened before was people were clearing out putting in two cows and say that we are doing agricultural purposes and destroying the native Hawaiian forest, so I know that stopped some years ago. FUKE: So if I can just kind of add to that, you know, if you recall like some of the earlier rezonings in that area, it was not necessarily only for the, how it's kind of morphed into like native Hawaiian forest, but then, you know, there were some other objectives, such as for watershed protection, as well as maybe protection on the `alala, you know, the Hawaiian crow or, you know,just the nesting ability. So the removal of the trees, the denuding of that area would compromise those objectives. So I think that has multiple, you know, reasons why, you know, this condition is made. We will have to provide, you know, as Maija had indicated, the 18 EXHIBIT C forest management plan, you know, to the Department for review and approval. And I agree with you, Ms. DeFranco, that it's difficult to plant coffee trees not necessarily that it's not native but, you know, I can't visualize coffee trees being in a shaded area, you know, because it needs direct sunlight. So, but anthurium is probably yes, you know. So I just wanted to add that. Thank you. VITOUSEK: Okay. Commissioners, any other questions? Somebody like to make aoh, Commissioner DeFranco. DEFRANCO: So, Mike, you are comfortable now with the language? And in making the motion, is there any language that we are changing in the motion or adding or are we good with what's happening? VITOUSEK: Again, I think that the forest management plan is key, and I think, yeah, the advice from Deputy Corporation Council that the forest management plan applies to everything is very important, so to me, don't need to change the language in that. I guess my final question would be what type of follow-up and enforcement is there for indicating whether or not forest management plans are actually adhered to? JACKSON: We have had spotty follow-up. As you know, our department is complaint driven due to the lack of inspection or enforcement resources that we have. So, as you can see probably from the aerial photo that Tracie showed during her presentation, there are areas within the subdivision that have not followed their forest management plan. So it would be a question of whether we need to do some comprehensive enforcement effort in Kaloko Mauka to bring those properties into compliance with their rezone conditions. VITOUSEK: Yeah, I mean, you know, I really feel like there is usually a community benefit component to a rezoning and to increasing density in any area, and to me that community benefit is the forest management plan and preserving native forests, enhancing native forests, which has a tremendous value. So if it's done right, it's a huge asset, and if it's not done right, then we are just increasing density for no real reason. But I think that the, Mr. Hinchcliff being from here and having the values of wanting to improve the forest and all that, I think that we'll be able to come up with a good forest management plan that will really add value to the community. So, anybody would like to make a motion? KANUHA: I'll make a motion. I move that a favorable recommendation be forwarded to the County Council on application to amend Change of Zone Ordinance number 05-027 based on the Planning Director's recommendation, which shall be adopted. VITOUSEK: Mahalo. Is there a second? PAISHON-DUARTE: [Raises hand to second the motion.] 19 EXHIBIT C VITOUSEK: Second, Commissioner Paishon-Duarte. And we can open it up to discussion for the commissioners. Any discussion? PAISHON-DUARTE: So, Chair Vitousek, I really appreciated what you shared about community benefit and the reason in which you were inquiring more about the forestry plan. So I may have missed it, but do you have a suggestion or a way forward in terms of how we can make way for that? VITOUSEK: Well, I mean—and in this case, of course, we are purely a recommending body to the County Council who will ultimately make the decision on the time extension but to me I think having more information would be pretty crucial in terms of a botanical survey of what's actually there and then having a copy of the forestry management plan in advance so that we can see what is being proposed and what the actual benefit would be, would help us make our decision on whether that mitigates the impact of creating an additional density. That would be my suggestion going forward. I think that this applicant will do that and will do a good job of it, but going forward, I would like to see that when we are reviewing this material. KNOWLES: I appreciate that, Chair, and I thinkI mean this is my first round—but it would seem to me to be also helpful to be more explicit in the approval of the condition in terms of what exactly the Planning Department is envisioning with respect to the application, you know, because there's several different versions of plan that the DLNR outlines. So what exactly are we talking about in this instance? Here we are talking about native Hawaiian reforestation, in others it might be timber or, you know, I mean it could be all kinds of things. So it would be very helpful to be more explicit in the condition where we are requiring these kinds of plans. VITOUSEK: I agree, yeah. KANUHA: And, Mike, maybe we put a request into Maija just for future reference coming up, you know, for that as well. JACKSON: Yeah, I think we can certainly be more specific in the condition language. I do have a little bit of concern, though, with requiring the forest management plan in advance; right now it's not a requirement for our application material, and it's a unique situation for Kaloko Mauka, and it came about as a condition placed by the County Council on previous rezones. So I think to kind of preempt that and assume that they are going to want to apply that condition in perpetuity going forward is a bit of an assumption, so I would just caution on requiring the forest management plan in advance of an application. VITOUSEK: Right. And I think that perhaps having the forest management plan in advance isn't necessary, but oftentimes with zoning applications, we are seeing the conceptual plans for what's being proposed, and, you know, those plans are fleshed out in greater detail after the zoning ordinance advances and, you know, that's the case. But in this case, we are really getting nothing in terms of what's going to be done for a forest management plan other than the fact that a forest management plan will be there. So I think having that level of conceptual planning on what's going to be there and to be able to present that to us with the intentions is going to be important going forward whether—it doesn't necessarily have to be the plan itself, that would be 20 EXHIBIT C ultimately approved by DLNR and Planning Department—but, you know,just a rough idea of what's going to happen, what we want to happen, what the vision is for the area. JACKSON: So you are thinking that could be like, requesting like a narrative description from the applicant of what they intend to do with the property and the forest? VITOUSEK: Yeah, similar as you would for the preliminary subdivision plans where you are laying out the lots, saying this is where the lots are going to be. Of course, all of that's subject to change upon topo survey and then all that, that kind of stuff, but just having a preliminary idea of what you want to do to preserve the forest. We are saying we want to preserve 80 percent of it, but, you know, for us looking at it, seeing that what percent of that 80 percent is native, what percent is invasive, because if it's 70 percent invasive, we don't want to preserve 70 percent of the invasives; we would love to have a plan together that addresses it. So I think that will be accomplished. I just, for me, I would be more comfortable having that information up front. KANUHA: Yeah, that's good, that's a great thought, too, Mike. And I believe, too, with the invasive, and going back to what you just said, watershed, like Sydney brought up earlier, was a huge thing, you know, for removal of all vegetation. But just kind of having a management plan that's in place by the applicant would be nice. VITOUSEK: Yep, cool. Any further discussion? [None.] Okay. Well, we can, now, we can proceed with the roll call vote. CAMERO: All right, thank you. Commissioner Kanuha? KANUHA: Aye. CAMERO: Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. CAMERO: Vice Chair DeFranco? DEFRANCO: Aye. CAMERO: Commissioner Dela Cruz? DELA CRUZ: Aye. CAMERO: Commissioner Knowles? KNOWLES: Aye. CAMERO: And Chair Vitousek? VITOUSEK: Aye. 21 EXHIBIT C CAMERO: The motion carries, six to zero. Thank you. VITOUSEK: Applicants, thank you for coming in. You will be notified of the decision in writing. FUKE: Thank you very much, Commissioners, for this very engaging discussion. VITOUSEK: Thank you. Aloha. The hearing ended at 12:13 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 22 EXHIBIT C