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HomeMy WebLinkAbout2010-02-05 TWITHERS WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT FEBRUARY 5, 2010 TIMOTHY & PATSY WITHERS A regularly advertised hearing on the application of (SPP 09-94) was called to order at 9:10 a.m. in the County of Hawaii, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with Chairman Rell Woodward presiding. COMMISSIONERS PRESENT: Rell Woodward, Dean Au, Takashi Domingo, Andrew Iwashita, Zendo Kern, and Wallace Ishibashi. STAFF PRESENT: Brandon Gonzalez (Deputy Corporation Counsel), BJ Leithead Todd (Planning Director), Norman Hayashi (Planning Program Manager), Daryn Arai (Planning Program Manager), Phyllis Fujimoto (Staff Planner), Jeff Darrow (Staff Planner), Maija Cottle (Staff Planner), and Kelly Gomes (Staff to the Department of Public Works). And approximately 9 people from the public in attendance. APPLICANT: TIMOTHY & PATSY WITHERS (SPP 09-94) Special Permit to allow the establishment of a visitor stand for the sale of novelty gift items, fruits, smoothies and snacks on 0.66 acre of land within the State Land Use Agricultural District. The area involved is located at 27-999 Old Mamalahoa Highway, Pepeekeo, South Hilo, Hawaii, TMK: 2-7-11: portion of 6. WOODWARD: We’ll start with Agenda Item No. 1, applicant Timothy & Patsy Withers, Special Permit Application. Jeff. DARROW: If I can direct your attention to our presentation on the wall, our first applicant this morning is Timothy & Patsy Withers. The location of this application is going to be along the Hamakua Coast, in between Papaikou and Pepeekeo. What you’re looking at on the top of the map actually is Pepeekeo. The dark green zoning is identified as Agricultural zoning, so it might be difficult to see. I actually have a black outline of the subject property. The road that you’re looking at that’s running through the right side of the map is the old Mamalahoa Highway or what they call the Onomea Scenic Route, the Four Mile Route. Right in the middle of the map we have the Hawaii Belt Road. The subject application is approximately 20 acres in size and it’s just located just to the south of Pepeekeo; and, at this time, there is currently an existing single family dwelling as well as a fruit stand located on the property. This is a site plan of the property. The bulk of the property is used for growing fruit trees, all kinds of different fruit trees, that the applicants use for their business that has been in operation since about 1995, and you might be familiar with it. It’s called “What’s Shakin.” This is an 1 EXHIBIT A aerial photo. Again, you see the outline of the property. The actual permit area that they’re requesting is right along the Onomea Scenic Route, just in this little leg here. The applicants are requesting to allow the continued operation of “What’s Shakin”, which is a fruit smoothie and snack stand with a certified kitchen in a 784-square foot building, which consists of 282 square feet, for the kitchen and preparation area, and 532 square feet for the deck and restroom and storage area. They’re also asking for the sale of smoothies, sandwiches, wraps and drinks, such as tea and coffee. The applicants will mainly utilize items grown on the property for their operation but will also use some items that aren’t growing on the property as well, such as the sale of item- styled gifts and novelty items. Lastly, there is a 500-square foot covered concrete pad with picnic tables for dining and a parking area. This is an overall floor plan and site plan of the project area. When you look at it in relation to the Onomea Road, the Onomea Road would be on the bottom portion of your map. Again, we have the actual kitchen preparation area and restroom area, and then you have quite a large deck area. This is a site photo of the property. We’re standing where the Onomea Vista Road is, looking -. So there’s quite a bit of graveled parking area. You see the actual smoothie fruit stand area, as well as the covered dining area. This is looking south on the Onomea Scenic Route; and this is looking north and the entrance to the property. The Planning Department is recommending approval with conditions that have been passed out to the Commission. Since this application has been passed out to the Planning Commission, we have received quite a number of correspondence, several from the applicant’s representative. We’ve also received a letter in response from Public Works to the applicant’s letter, as well as some support letters that were passed out this morning. Are there any questions? WOODWARD: Any questions for staff? All right, seeing, none if we could have the applicant and/or their representatives come up and have a seat. All right, first I’ll need to swear you in. If you’ll raise your right hand. Do you swear or affirm to tell the truth today before the Windward Planning Commission? T. WITHERS: Yes. P. WITHERS: Yes. YEH: I do. WOODWARD: Okay, very good. Now if you’ll use the microphones when you’re speaking and before you begin your testimony please give us your name and address. Are you going to start, Mr. Yeh? YEH: Yes, thank you. Good morning, Mr. Chairman, Members of the Commission, my name is Thomas Yeh, representing the applicants. My business address is 85 West Lanikaula Street. Today with me are Tim and Patsy Withers, the applicants. What we introduced today, and it was in the way of support letters, just as a preface, is some support from Suisan which is one of the 2 EXHIBIT A vendors that they’ve been working with. We previously submitted letters of support from surrounding owners. I’m not sure if there’s going to be an opposition today. But we are here today to talk about a few of the conditions that we are seeking some adjustment on. But before I go into that I wanted to have Patsy explain some of the background and history of how this project came to be from beginning to where we’re at now, and then I’ll go into why, to some extent that relates to the conditions. So, thank you. P. WITHERS: Good morning, thank you. We purchased our property back in 1987. WOODWARD: Excuse me, if you could give us your name and address, please. P. WITHERS: Oh, Patsy Withers, 27-999 Old Mamalahoa Highway, Pepeekeo, 96783. WOODWARD: Okay, thank you. Now you may begin. P. WITHERS: Okay, thank you. IWASHITA: Mr. Chair? Sorry. WOODWARD: Yes. IWASHITA: Sorry for the interruption, but I wanted to disclose that I know the applicants from a long time ago. She’s actually very good friends with my cousin; and that’s really the extent of my knowledge of them. But just for the purposes of being extra careful about conflict of interest and stuff, I want to disclose that and say that that relationship, if you want to call it, is not going to impact my decision. WOODWARD: Very good, thank you. P. WITHERS: We purchased our property in 1987 and at that time it was a macadamia nut orchard. Tim and I decided to then diversify our crops by planting many other fruit trees, including bananas, lichee, mangoes, citrus, avocado, rambutan and guavas. We’ve established a crop for vendors such as Don Quiote, Whole Foods, and The Good Earth. We began operating “What’s Shakin” back in 1994. At that time we offered small gift items, such as post cards, for visitors to take home. We sell all items from local vendors. We also work closely with Suisan, HFM, and local bakers, and have throughout our whole years of business. We are able to employ five to six employees at any given time, including myself and Tim who works on the farm. Being at “What’s Shakin” every day I hear only rave reviews from visitors and returning local residents. We are now a destination for many. And I’m told daily how “What’s Shakin” was their favorite spot on their entire trip. We are proud to offer such a positive and memorable experience. Due to the low tourism and economy and the bridge closure on the Scenic Drive, our business has suffered dramatically. The period between September through November the road has been closed to through traffic. We didn’t want to lose our valuable employees so we tried our best to keep their hours and keep them employed. And so here we are due to receiving notice about 3 EXHIBIT A needing a special permit. On behalf of Tim and I, we want to thank both the Planning Department and the Commission for giving us this opportunity to submit the application and for your consideration of the permit. WOODWARD: All right, thank you.Any questions for Mrs. Withers? DOMINGO: Mr. Chairman? WOODWARD: Yes, Commissioner Domingo. DOMINGO: So the major component that you sell on the property are those which you grow on the property itself? P. WITHERS: Yes. DOMINGO: And your gift shop items are mostly those made on the island or from around, within the state? P. WITHERS: Yes. DOMINGO: Nothing from Taiwan or China or anything, huh? P. WITHERS: No, most of it is locally. I get it from local vendors here in Hilo, so -. DOMINGO: I seem to chuckle because, you know, there are many island souvenirs that you find in the shops that depicts the Hawaiian nature and are made in other parts of the world. And I, just for my curiosity I just wanted to ask. Thank you. P. WITHERS: Yeah, and the tourists love to purchase those little items, you know. DOMINGO: Thank you very much. WOODWARD: Okay. Any further questions? No? Mr. Withers, are you going to testify? T. WITHERS: No. Patsy said it. WOODWARD: No, okay. AU: Excuse me, Mr. Chair? WOODWARD: Yes. AU: I have a question. WOODWARD: Commissioner Au. 4 EXHIBIT A AU: Can staff help me out on this? I was looking through the applicant’s application and it says th they had a deadline to respond to the warning letter, the deadline was September 10. Was there th a response on September 10? I was looking through and I couldn’t find anything. And if there wasn’t a response, why didn’t you respond to the letter if there wasn’t a response? YEH: Perhaps I can respond while Mr. Darrow is looking through the file. Yes, we did respond. Actually we, in advance of that deadline, indicated to the Planning Department that we would be submitting this application. And basically I didn’t want to kind of need to go into that but because a large, they are in fact carrying on, as you’ve heard, agricultural activity on the majority of the property. They sell products and fruits to a bunch of vendors, including people in Honolulu, as part of this component. And when I was looking at the Ag-Tourism Statute or Ordinance that the Council passed about a year or two ago, it seemed to fit in there. But notwithstanding that, there was also a savings clause indicating that if you were engaged in ag- tourism I believe you had until November of this year, I think the Council extended it about a year or so, to allow people to come in and submit the kind of applications that the applicants are doing now. So, yes, we did respond. I do have a copy in my file; but I’m not sure if Mr. Darrow found it. DARROW: There was a response; and that they, as Mr. Yeh had said that they were going to be th filing for a special permit, they did shortly after. The permit was actually dated October 15, so it came in shortly after they had responded. AU: I just want to make sure that, you know, we’re on same playing level field as everybody else. Because when there’s deadlines and, you know, when you’re required by the Planning Department to submit something, we would like to have seen that, if you did do that. And I was looking through and I don’t think I saw anything. So that was one question that I had. You know, from the very start you got this warning letter and if you did not reply to the deadline, then that already brings red flags.So I’m just concerned about that. YEH: Thank you, thank you. DARROW: If I could just clarify, if the applicants had not responded to the warning letter there would have been a notice of violation issued shortly after. So as a result of them responding and submitting, there was no notice of violation issued. WOODWARD: All right. Any further questions? DOMINGO: Mr. Chairman? WOODWARD: Yes, Commissioner Domingo. DOMINGO: Considering Mr. Iwashita’s remarks with regards to him being friends with the applicant, my personal opinion, and, I don’t know, might be our Corp. Counsel can correct me on that, I don’t think being a friend of the applicant or the applicant’s representative should preclude anyone from participating in a discussion or even taking a vote on the issues. I see no probable conflict of interest if they do that. 5 EXHIBIT A WOODWARD: No, in fact, Commissioner Iwashita mentioned that, that his friendship has nothing to do with this matter. So I don’t think he’s planning on recusing himself. DOMINGO: Well, he has been awfully quiet so Iwas wondering why he’s not -. WOODWARD: Well, sometimes he is quiet, you know. No, it’s nothing that is going to affect his vote. So that’s not really an issue, I don’t believe. IWASHITA: Mr. Chair? WOODWARD: Yes, Commissioner Iwashita. IWASHITA: This is not in response to Taka’s comments. I did have a couple of questions. WOODWARD: Okay, go ahead. IWASHITA: I just wanted to clarify, Tom, with regard to your letter of January 25, 2010, there are just a couple of things. The 500-square foot covered dining area, I’m not clear, was that a permit pulled to add that on? YEH: That was an area that I think was added to allow for more ADA accessibility because it starts for the -. IWASHITA: Right, I just -. YEH: But I’m just going to explain some of the background. So I guess the answer is no. But what they did is they actually added a 500-square foot concrete pad there and then they put in a shelter area that people could sit and dine. So, you know, and I’m not sure it required a building permit per se. IWASHITA: Okay. YEH: It’s a covered awning area is what it is, yeah. IWASHITA: Okay. So you’re not, the representation is it may not, a permit would not necessarily be required, had been required to do that? YEH: I, cause it wasn’t a structure at least in terms of the concrete pad. In terms of the awning area, I’m not sure what the answer to that is. IWASHITA: And as far as the drainage study concerns that you expressed in your letter, looking at the response you got from Public Works, it appears that there’s a County Ordinance that may be applicable. Can I get a clarification on that? 6 EXHIBIT A YEH: Yeah, basically that ordinance comes into play or gets triggered by a plan approval request. And so I was going to get into that a little bit. But if you look thorough the background report that was provided by staff, somewhere towards the back two-thirds of that portion you’ll see that on March 28, 1994 the Planning Department did in fact give plan approval already. So we were going to suggest that was one of the conditions, along with the drainage conditions, that we were going to request to be deleted. What, if you take a look at, and this is a good opportunity for me to explain a little about this issue and why we’re sitting here today, is because basically if you take a look and continue on past that plan approval document, the premise for issuance of the plan approval at that time was based on a letter from the Withers to operate this fruit stand; and in there they did indicate that it would provide people the opportunity to sample and consume the fruits on the farm, along with island health made snacks. So as it turns out through the evolution of the business, they have a 25, basically approximately 25- to 30-square foot area that they put in some of these other nonconsumable knickknacks that visitors tend to like to buy. And that’s why we’re sitting here today, because if it weren’t for that area, we wouldn’t be getting to this whole special permit issue, because the plan approval had already been issued. So because of that, what we’re requesting the Commission to consider is a deletion of the new plan approval requirement that has been suggested by staff as a condition, because we’re saying plan approval was given. Nothing has really changed. We haven’t relocated the building. The drainage has never been an issue. They’ve been operating for 15 years on the same basis. And so in the discussion that I had with Kelly, and to his credit, he has pointed out some of these provisions that may or not be triggered depending on what the Commission does today. When I did have discussions with him, and Kelly is here to confirm or whatever, we discussed the fact that they had been in operation. And basically I had understood that from a practical standpoint, setting aside this ordinance provision, but from a practical standpoint if we weren’t really changing the location or doing any expansion, a drainage study really wasn’t something that was going to be at least considered mandated; and that’s just a practically issue. Cause they have been operating 15 years. There have been no complaints, no drainage issues on the road, anything like that. So I know that’s a long-winded discussion but it gave me an opportunity to kind of talk about the history of where the Withers have come from then until now on at least on those issues. IWASHITA: Just to follow-up with staff on the ’94 plan approval and -. WOODWARD: Right. I believe staff has got some, there were several conditions that they would like to have changed. IWASHITA: Well, I just wanted clarification, Mr. Chair. WOODWARD: Okay, sure. IWASHITA: In the report for this matter, background report, there is included the final plan approval from March 21, 1994; and in that plan approval there’s a reference to off-street parking and a ditto which basically says as per plan. So I’m assuming there was a site plan that had the 7 EXHIBIT A designated parking area. And my question is whether or not the parking as it exists today is the same as in that plan, or is close to. DARROW: Well, at this point since 1994, as the applicant’s representative had stated, there has been an expansion of the facility of 500 square feet. So at that -. WOODWARD: Sorry, I’m asking about the parking area. DARROW: Previously it was, when they came in in 1994 it was reviewed under plan approval for that particular project, without the expansion, and including the parking. IWASHITA: Okay, let me try rephrase my question. We have a site plan for the existing parking today. Right. My question is simply whether or not that existing parking area is larger than the parking area approved in the 1994 site plan, just the parking. The other stuff I’m not really asking about now. DARROW: As far as the amount of stalls, I would have to pull out the plan and look at the difference of the amount of stalls that were required under the 1994 plan.As far as the area, I don’t think the area has changed at all. It appears that the area is large enough to accommodate, you know, well more than -. IWASHITA: Okay, thank you. So my impression then, and correct me if I’m wrong, is that the site plan approved in 1994 from the Department’s perspective it was okay to park within that area as -. And so what’s being, what we’re being asked for today as approving the existing use that that, the existing use falls within that existing area. So there’s -? Cause I, what I’m getting from Mr. Yeh is that, you know, basically since there was approval back then we really shouldn’t be reviewing the plan or require another plan approval since there was already a plan approval for parking within that specified area. If that’s true I’m inclined to agree with Mr. Yeh. DARROW: That would be true if there was no expansion of the facility. Whenever there’s an expansion of a facility, they have to come back in for plan approval. IWASHITA: So you’re talking about the 500 square feet? DARROW: Correct. LEITHEAD TODD: Mr. Chairman? WOODWARD: Planning Director. LEITHEAD TODD: I have a couple of questions; and I regret that I’ve been preoccupied with the State Legislature so did not pay as much attention to this as perhaps I should have. In the 1994 plan approval I see what we basically approved was a fruit stand that was going to offer exotic fruits and island-made health snacks; and then the health snacks offered were listed, things like poha jam provided by Puukapu Farms, and health cookies and bars. And I guess, you know, 8 EXHIBIT A we’re basically looking at maybe smoothies. But I am wondering, cause I don’t see anything listed here, what kind of approvals did you get for a commercial kitchen? YEH: Department of Health permit. LEITHEAD TODD: Okay, because I noticed that when I looked at the health stand, the menu and the kind of things that are offered, it goes far beyond smoothies and -. YEH: This is true. And basically what it was is at that time, you have to understand what they were trying to do was to say that they would make these island-made health snacks. There was a partial list, just like the kind of fruits or smoothies that were offered was partial. But as a -. LEITHEAD TODD: I’m just saying that this looks more like a commercial kitchen and restaurant. YEH: They did get a Department of Health, Food, Health Permit, yes. LEITHEAD TODD: Okay. But that was not the representation to the County. I’m looking at, this is garden burgers and tamales and nachos and hot dogs and chicken wraps and all other, you know, turkey sandwiches, roast beef sandwiches. And I’m just wondering whether that was covered by the Department’s -. Mr. Darrow, I’m just wondering whether our approval, our plan approval for the fruit, envisioned or covered a commercial kitchen and the sale and preparation of lunch items as well. DARROW: In 1994 basically they were reviewing the use based on the letter that they had submitted. In that letter they did not reference any certified kitchen and they didn’t reference any, I could be wrong there. What we’re going to do is right now we’re getting the actual plan which was in the office. But it didn’t reference any sandwiches or wraps or anything of that nature. It was mainly looking at items grown on the property as well as some island snacks like the several snacks they had identified. And then again we’re looking at the other issue of items that are just novelty items that are being sold. LEITHEAD TODD: And the reason I’m asking is in other applications we’ve actually had to approve as part of the use permit the certified kitchens, if you’re offering, if you’re selling stuff that’s not made on the premises. And it seems like the sandwiches and stuff went far beyond health snacks. You know, it went beyond cookies and bars. And so that’s the question I cover, is whether our plan approval covered that or whether this -. And so I’m really sorry to be asking this question at this stage and not sooner, but I’m just questioning whether to be consistent with what we’ve done with other properties, whether that needed to be included in this. So I’d like to have staff take a swipe at that. YEH: Yeah, just to respond to that, then I will say that I’m not sure what the practice was in 1994, and as you can understand over time businesses tend to evolve based on what people want. And it just was a, kind of a transformation from then until now. So I’m not sure we can blame the applicant for that, but that’s what happened. 9 EXHIBIT A LEITHEAD TODD: I fully recognize that the somewhat restrictive applications of the State law on what you can and can’t do on Ag land is very difficult for people who are actually trying to survive and make a living off of their land and off of what they produce. You know, the whole idea that you can sell your fruit at a fruit stand but if you put it in a blender and blend it then is that then processed and, you know, is that salable? But, you know, we’re somewhat constrained by the fact that we have this State law that makes it very difficult for people to actually pursue what I consider legitimate activities related to their agricultural production. YEH: One of the things that I wanted to add on this parking area issue that had been discussed earlier is that if you would, the entrance to that property and where the building is located used to be kind of a merging of cane haul roads; and one of the roads leads to the north and one road leads to the southwest. And what cane haul roads used to do because the mill was north of the property, they used to come down that cane haul road and use that entire area essentially for a turnaround, cause you had these big cane haul trucks. So that whole area has always been kind of a vehicular use area previously for cane haul, and now this parking area. So that’s why we’re kind of trying to emphasize the point that from a drainage issue standpoint that kind of issue from a public health welfare impact standpoint it really is, if anything, better than how it used to be, on that point. And I’m not sure if staff has the plan approval. DARROW: Thank you, Mr. Yeh. The plan approval did have a plan that showed a triple compartment sink as well as a refrigerator as part of the original request, which would have, because they’re serving to the public would have required certification from Department of Health. WOODWARD: All right, so Madam Director, do you have anything to add to what you said as far as they -? LEITHEAD TODD: I just wanted to make sure that, you know, what they had had been covered in the plan approval; and I’m satisfied after looking at the plans that whether they called it a certified kitchen on the plans or not, but looking at the plans it’s clear that it was in fact a certified kitchen that we signed off on plan approval. WOODWARD: All right, very good. IWASHITA: Follow-up, Mr. Chair? WOODWARD: Yes, Commissioner Iwashita. IWASHITA: I’m still not clear whether that plan approval with parking, going back to the parking issue, whether the plan approval in ’94 basically can be said to have approved the existing parking use. DARROW: In the original plan approval they didn’t specify the amount of parking stalls. They just had a general parking area that appeared to meet the requirements of the footprint that was submitted at that time. 10 EXHIBIT A IWASHITA: And that’s the footprint, less the 500 square feet? DARROW: Correct. WOODWARD: Commissioner Domingo? ] DOMINGO: I think Mr. Iwashita in the very beginning when he asked if buildings have been, or part of the buildings have been, permitted is the basic question that we should all be concerned about with regards to any applications that comes before us, whether or not everything so far have been permitted, everything that’s on the ground. With regards to the question of, you know, making reference to the menu here, and that it will be something beyond the scope of what they originally applied for, you know -. A, as far as I can tell, I think if it’s not within that scope what can this Planning Commission do at this time to be able to entertain that factor whether they can provide that which is listed on the menu as shown to us in the document. YEH: I would, and I apologize, but my suggestion would be on that covered area is to, if necessary for that area require them to get a building permit, if it is in fact required by the Building Code, and insert that as a condition. I think that would be probably proper. WOODWARD: I believe with regard to Commissioner Domingo’s question though the Director has stated that she felt that what they had gotten in the previous plan in ’94 would cover what they’re doing. Am I correct in that? LEITHEAD TODD: Well, I think it covers the certified kitchen. Their application now, my understanding, is to include the sale of products not grown on the property. And to -. YEH: Just to be, just to be safe that’s correct. LEITHEAD TODD: And that would include sandwiches and turkey -. You know, I think under that general heading of selling stuff that’s not island made, you know, your turkey, tuna, whatever, your sandwiches, I think that would be included in the sale of products not grown on the property. And it’s consistent with the fact that they have a fruit stand, and that we signed off on a certified kitchen. YEH: Right. And I think my main point on the plan approval issue is to say, hey, you’ve got the structure there and from that perspective it hasn’t changed. DOMINGO: But as I understand the concept of special permitting is what you state specifically on the application is what you will do, that there’d be no deviation from it. If there is any deviation you have to come in for an amendment to it. And that’s the wonderful part about the special permit, because it gives you the control that you need when there is a need for it. So -. YEH: I agree, I agree, Commissioner. 11 EXHIBIT A AU: Mr. Chairman? IWASHITA: Mr. Chair? WOODWARD: Commissioner Au. AU: Commissioner Iwashita can go first. I actually have another question, totally different question. IWASHITA: No, go ahead. AU: Okay. Well, now I want to talk about the motor bike track issue. Okay, it says right here you had a complaint; and I think staff should comment on this too. What form did the complaint come in? And, you know, on 20 acres if you’re using your vehicles for work purposes, you know, pulling your crops and whatever, you need to use these vehicles. But if you’re getting a complaint from a neighbor or whoever, whatever form this complaint is in, you know, you must be using these for your tourists, for your people and -. Is that, I mean why did this complaint come in -- and I don’t have a copy of the complaint -- and what is this all about? All it says is there’s a complaint alleging that you have created a neighborhood disturbance. So can you talk about that? YEH: Okay. AU: Or if you want to stay on this same subject but -? YEH: To the extent if I can answer, that complaint, I’m not sure what the genesis of it is. Cause we never found out who it was, and what they had heard, and where it was really coming from. Because there is, as you know, a lot of farm machinery in the area that’s used by the Withers as well as other properties. But I’m going to back up a little bit now cause you’ve kind of gone into another area that I think is maybe for another day, maybe not. But Mr. Withers is actually kind of like a, I think he’s a seven-time world champion motor cross. -. In fact he just came back from Mexico at the end of last year with the world title. He had not actually been practicing on this property, which he does on occasion, even at the time that that complaint had come in. So what we did is responded to the Planning Department on their complaint and we showed them photographs taken right after the complaint was done showing how overgrown the area was, that there were no tracks. On this issue, the discussions that I’ve had with the Planning Department is, is that, as you’re probably aware, in Ag lands, open area recreational users are not required to have a permit. What they’ve try to do is when he does practice, and he hasn’t yet, but when he does he tries to be sensitive, not during evening hours, on weekends. That’s basically it. But that complaint did not really have a justification, cause that activity hadn’t occurred on his property, and there are no people coming up paying or anything like that, absolutely not. AU: Okay, well, my response to, I mean, my question to the applicant is, okay, you know, the only reason why this came about is because of this compliant. If it wasn’t for this complaint you guys would have gone about your business for another 20 years. Okay? So, you know, that’s why the Planning Department is putting in conditions. You know, they go in to investigate the 12 EXHIBIT A complaint and then they find out, wow, in 1994 you guys got your GE license, you guys went and got a fruit stand, you guys got three permits, you guys did your house, you’re permitted the barn and, you know, you’ve got three different permits. So you did comply; and that’s great that you complied. Okay? But since 1994 have you been complying? Whether or not you knew you were complying or not you weren’t, that’s the bottom line. And, you know, the only reason why all of this is coming up is because of the complaint. And, you know, I’m just concerned that, okay, this complaint came up, so what else are we going to find? YEH: I’m not sure how to answer that. I just, like I said, the applicants over the years have evolved through a certain business. When the complaint came up and we responded to it, I said, you know what, I mean, it is a good thing to come in before the Commission, while it is from my perspective considered to be Ag tourism, nevertheless you should go in, and let’s get to this issue, clear it once and for all. I believe over the years they, they haven’t been hiding from the public, cause as you know they’re right on the road. So that’s, the best that I can say is they want to comply, they’re asking for some consideration of where they’ve come from to now and the fact that plan approval has been issued. And I understand your concern is that when you’re taking a look at are there really any changes, any adverse impacts from what they’ve been doing as opposed to what they were prevented to do, I’m not sure there are. And that’s what we’re trying to focus this on. But thank you. IWASHITA: Mr. Chair? WOODWARD: Okay, we’re getting on a lot of kind of peripheral issues here, and I’d like to keep this focused if we could. Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. Let me make an attempt to do that. I guess I have a question for the Director. It’s that, the concerns Mr. Yeh raises on behalf of the applicant appears to address Conditions 3 and 4 of the recommendations. And as to 4, which is the survey, it appears since the boundaries of the area previously approved have not been really changed, that we really don’t need No. 4 like the Director’s concerns or point on that. DARROW: Condition No. 4 is the standard condition that we place on any special permit that’s over the amount, the property is larger than the amount of the permit area, so that we can confine the permit area to a specific area. And the only way we can identify that permit area is through a metes and bounds survey. IWASHITA: I understand that. But it appears to me that in ’94 the permitted area was approved by the Department and on the record before us today it appears everybody agrees that that area has not been exceeded. So that’s why I don’t see a need for it. That, you know, if there was an expansion of the .66-acre area that was previously approved, then I can see a need for a new metes and bounds description. But unless I’m mistaken there hasn’t been; and if there hasn’t been then I don’t think we need the standard provision. Cause the only expansion thus far that I see is the addition of the 500-square foot concrete slab. WOODWARD: I think that’s the question that Mr. Yeh is raising, is whether we have to throw all these extra conditions on for an extra 500 square feet. 13 EXHIBIT A IWASHITA: Right. WOODWARD: Whereas the previous 1994 permit had addressed all these issues; and whether adding another 500 feet is going to require them to do all of this in addition. Okay. IWASHITA: The other concern I had or -. If there’s no further comment by staff, then the other concern -. DARROW: Well, I’ll just, if I could, previously this was a permitted use under the Zoning Code which only required plan approval. It wasn’t something that usually a metes and bounds request was made. But in a special permit, again, it’s a standard condition that we place for all special permits on properties that are larger than the permit area. And this being a 20-acre property with a small area being used -. But, again, your comment is correct as far as the plan that was submitted in ’94, the actual area is similar to the area that was identified in the plan that’s submitted for the Special Permit. WOODWARD: Any further questions? Commissioner Ishibashi? IWASHITA: I’m sorry, Mr. Chair, I had one other. WOODWARD: Oh, I’m sorry, go ahead. IWASHITA: Thank you, Mr. Chair. As far as No. 3, final plan approval, I guess given, my perspective is, yes, the 500 square foot issue, whether it should be permitted or not, is the issue that’s being discussed here in this violation or the change in the actual area used. And so, but given all of the circumstances of the record, you know, the only thing I can really see is that a determination be made whether or not a building permit should have been pulled for that; and then if it was required that an after-the-fact permit be pulled for that. Cause other than that I don’t really see -. Given that the prior approval included the certified kitchen and so it encompasses all of the uses, and the only violation really is selling these postcards and other kind of things that we’re amending for that, I really don’t see a need for a completely whole new plan approval process. So -. DARROW: Could I interject? IWASHITA: Yes. No response, I’m done. DARROW: In the original plan approval there were conditions of the plan approval on Exhibit 2. On the second page Condition No. 2 stated plan approval required for any further building modifications or addition. So it was also a plan, I mean, a condition of the original plan approval that had there been any expansion that it would have triggered plan approval at that time as well. IWASHITA: Thank you for pointing that out. And, I guess, for this requirement then basically the plan approval will be as to the 500 square feet or will it beyond? Cause I guess the concern 14 EXHIBIT A is, you know, maybe I just don’t understand the plan approval process. But if one thing triggers, you know, requires the applicant end up having to pay $10,000 or whatever to take care of 500 square feet seems to me that those are things public complains about. But if it’s limited to this 500-square foot area, I don’t really have an issue with that. But I just want to get clarification. YEH: Mr. Chairman, I think Mr. Withers can talk about this 500-square foot area better than I can, so if he can -. WOODWARD: Okay, if you could just give us your name and address, and then begin. T. WITHERS: Tim Withers, 27-999 Old Mamalahoa Highway, Pepeekeo. And as far as that concrete area, from my recollection when Planning wanted me to put in a handicap ramp to access onto the deck that was part of the plan. IWASHITA: In 1994? T. WITHERS: Yeah, I had to put a handicap ramp and bathroom in, and that was part of it. It wasn’t -. IWASHITA: Why isn’t that part of the record in ‘94, the written record? WOODWARD: Jeff? DARROW: I’m sorry, if you could repeat the question. IWASHITA: Does anyone in staff know or confirm or dispute what Mr. Withers just said, that the ramp was built in ’94, as part of the approval process? WOODWARD: He was saying that this was part of the ADA requirement and it was part of the plan from 1994. DARROW: It may have been. Unfortunately we don’t have any record of that. All we have, the building -. T. WITHERS: Let me add too that it was all exposed area there, and with all the rain in Hilo I thought it best to put that Big Island Tent awning up; and it’s, that was the main reason that I did it for that area. IWASHITA: You added that after approval? T. WITHERS: Yes. The awning is about four years old. DARROW: The building permit that was issued in 1994 does state that was for a ramp and landing; but I don’t know if 500 square foot would be included as an entire ramp and landing. That’s quite a large area for a ramp; and at this point it’s being used as a dining area. Is that correct? 15 EXHIBIT A YEH: That’s correct. DARROW: So that would be not even being used for the purpose that it was made for. YEH: So I would, anyway, I would -. IWASHITA: Just a follow-up. Was that permit finaled? DARROW: Yes, the permit was finaled on May 25, 1995. IWASHITA: Thank you. YEH: So I -. WOODWARD: Mr. Yeh. YEH: My suggestion, again, I think is because the awning is to me what creates the issue of whether or not a building permit is required. Because the landing itself is not a structure per se. It’s basically, for lack of a better word, a paving over a certain 500 square foot area. It’s the erection of the awning that creates this additional issue. And I think the way that may be held is to indicate that if the building permit is required the applicant shall get one. And that’s something Building Division can determine if they needed to do that and they can hire an architect to go get that plan done. DOMINGO: Mr. Chair? WOODWARD: Commissioner Domingo. DOMINGO: You know, I’m satisfied with regards to the fruit stand. They were permitted to build a fruit stand, bathroom, storage deck, ramp and the landings; and it’s as indicated by staff, th it was finalized on May 25. As far as awning, you know, I have two interpretations of that. You can do something and erect that and consider it a permanent measure. Or you can put it up and consider that as portable because you can take it down whenever you feel like it, without much work or even money involved. So I think everything is in compliance. I see no need to have a further discussion on this. WOODWARD: All right, just for the record, we have nobody signed up from the public to testify. So, Commissioner Ishibashi, did you have -? ISHIBASHI: Thank you, Mr. Chair. Yeah, just a couple of questions. With regards to the, so we’re ADA approved right now. We’re all good with the ramp and all that. So on this parking, on item, not parking but the driveway, you guys going to construct concrete or asphalt. Is that part of the parking or it’s just that part of the, just the driveway? 16 EXHIBIT A YEH: That is the, and I also talked with Kelly about that yesterday and before. And, basically, we’re okay with that requirement, because I think it is a good thing. Basically what it involves is joining the property line to the edge of right-of-way so that vehicles turning off and onto the property can do so without creating an issue from an erosion or whatever standpoint. I think it makes good business sense, too. The only thing from the business standpoint is that because of the economic downturn, basically, the bridge closure dramatically affected their business because people couldn’t drive on the scenic drive. They’d see a sign and they’d turn back. Unfortunately the County doesn’t have some sort of a financial loss compensation program. So they ate that. And so we’re saying give them two to three years to go complete that driveway; and we’re fine with that. That’s the only adjustment we’d like to make there. Yeah in answer to that question. So that’s what it involves, not a full blown driveway from the road up to the -. ISHIBASHI: Yeah, up to the top. YEH: Yeah, it’s more in the entrance area, the apron, so to speak. ISHIBASHI: My other question was in regards to the guests are allowed to walk the farm, the field? Cause this is, my question is talking about the traffic. Is that you’re going to have a track that they’re going -. T. WITHERS: No. ISHIBASHI: No, it’s just your practice, good for you. Congratulations. So the guests are not allowed to walk the farm? T. WITHER: No. ISHIBASHI: Okay, okay. T. WITHER: Just directly behind it there’s just a mowed area about 3 acres. ISHIBASHI: Okay. I live on 27-469 right down the street from you so I know that bridge is affecting you guys big time. We cannot go through that route too. But, yeah, good smoothies over there. T. WITHERS: Thank you. YEH: But I think, as I understand the visitors that come on the property do want to see fruit trees which they are allowed to do. P. WITHERS: They do. YEH: They do see that, yes. WOODWARD: All right, any further questions? I guess one of the issues here, and Mr. Yeh has brought up, is whether the fact that they are now asking for this permit to cover an extra 500 17 EXHIBIT A feet is going to justify all the conditions that the Planning Department has put before them, and Mr. Yeh has given us a list of the things he was objecting to. So that’s one of the things we need to address, I guess, in our discussion. IWASHITA: Mr. Chair? WOODWARD: Yes, Commissioner Iwashita. IWASHITA: I’m prepared to make a motion. WOODWARD: All right. YEH: Before Commissioner Iwashita does that, I’m not sure if you folks saw that we had wanted to expand the hours of operation, like one hour on each side of the proposed. But you do have -. IWASHITA: I will address it in my motion. YEH: Thank you. WOODWARD: Okay. All right. And just to make sure we’re complete, you have received a copy of the recommendations, and obviously you have because you’ve made comments on it. YEH: Yes. WOODWARD: Okay, very good. Commissioner Iwashita. IWASHITA: Chair, are you going to allow the parties to remain at the table or -? WOODWARD: Oh, yeah, thank you. You can all be seated. Thank you. IWASHITA: Thank you, Mr. Chair. With regard to Item No. 1, applicant Timothy and Patsy Withers (SPP 09-94) Special Permit to allow the establishment of a visitor stand for the sale of novelty gift items, fruits, smoothies and snacks on 0.66 acre of land within the State Land Use Agricultural District, I move that the application be approved subject to the conditions found in the recommendation on this matter with the following changes. As to Item No. 3 that it be deleted, which is the final plan approval item. As to present Item No. 4 that the following phrase be added at the beginning: “If an issue arises as to whether the applicant’s use exceeds the project area”, and then change the “T” to a lower case “t,” “the applicants shall submit metes and bounds of the 0.668 project area by a registered surveyor prior to,” registered surveyor, and I guess, the “Activities will be limited to the permitted area.” 18 EXHIBIT A As to Items, and then the following paragraphs be renumbered appropriately. And to the Item No.6, currently the hours of operation shall be limited to 8 a.m. to 6 p.m. as requested by -. KERN: The applicant. IWASHITA: And as to Item No. 8, the time period be extended to, not 8, oh, I’m sorry, as to Item No. 8 that the time limit be included to allow the applicant to comply within 36 months. WOODWARD: All right, do we have a second? DOMINGO: One question.What about condition 7? IWASHITA: Oh, I’m sorry. Yes, the second sentence of 7 be deleted.So that it reads, “All development generated runoff shall be disposed of on-site and not directed toward any adjacent properties.” Thank you, Mr. Domingo. WOODWARD: All right, very good. ISHIBASHI: Second. WOODWARD: Okay. IWASHITA: Mr. Chair, if I may just address -. WOODWARD: Yes. IWASHITA: As to the awning issue, the condition does require compliance with existing law, which I assume includes the building permit requirements. And so whatever issues the applicant needs to address with regard to the awning would be covered by that. WOODWARD: Right. Well, it’s an umbrella, so it fits under the umbrellas clause. Okay. Any further discussion? All right, seeing none let’s take a vote. DARROW: Before we begin with the vote, if I could just clarify with Commissioner Iwashita. The wording on No. 4, I’m sorry I couldn’t hear it clearly. IWASHITA: Okay, I’m sorry. You know, “If an issue arises as to whether applicant’s use exceeds the project area, the applicants shall submit metes and bounds of the 0.668 acre project area” prepared, should be “prepared by a registered surveyor. Activities will be limited to the permitted area.” GONZALEZ: Commissioner Iwashita? IWASHITA: Yes. 19 EXHIBIT A GONZALEZ: Mr. Chairman, may I ask for clarification? WOODWARD: Yes, Mr. Gonzalez. GONZALEZ: Can we change your term and use of “project area?” Because they’re not going to know project area unless they get a metes and bounds. So is there an established project area that you’re referring to in that sentence you added in the beginning? You know what I’m saying? IWASHITA: Well, I just, yeah, thank you. I just used that term because it was a term used in the existing or proposed language for four. So whatever staff would recommend, if that needs clarification, that’s fine with me. GONZALEZ: Okay. So I just wanted to see, you were envisioning the project area now as established in the prior plan or something, right? IWASHITA: Yes. Well, yeah, in my mind and I guess because the proposed language for four used the .668-acre project terminology, I just copied that in my language, yeah. DOMINGO: Mr. Chairman? WOODWARD: Yes, Commissioner Domingo.0 DOMINGO: Mr. Chairman, I can see where the motion would amend or delete certain aspects of the conditions. But what I’m concerned is that this being a special permit, and as I indicated that, you know, when you apply for a special permit you’re beholden to certain specific conditions, there’s no ifs or buts about it. And if there are changes in the conditions or the contents of the special permit, would it not be more appropriate that they file for an amendment to the permit, to the Special Permit? Because right now it kind of leaves it nebulous, and the interpretation of what’s the intent of the Commission is questionable WOODWARD: I’m not exactly sure what you’re asking, to be honest. DOMINGO: What I’m saying is, okay, when I say nebulous, you know, if, if they find it a necessity to expand the metes and bounds and the boundaries and where the operation now exist, then they should come out with, I guess, a survey and a new metes and bounds to indicate that they’ve done this. What I’m saying is that because they’re changing it, they’re changing the specific, specifics of the condition, is it not more appropriate that they come in for an amendment to the application? WOODWARD: Well, maybe, I’ll give you my best shot at an answer. The question I think is whether the addition of this 500-square foot area in the area that was previously mapped out in their plan justifies a complete new plan. That’s sort of the crux of the matter. Now if there was to be, my understanding is if there was to be any further changes beyond what is existing now, then they would have to require, it would require either an amendment or a new special permit. 20 EXHIBIT A DOMINGO: Well, maybe we can ask Mr. Gonzalez to interpret that. GONZALEZ: Okay, Commissioner Domingo, I think what you’re saying is usually when a special permit is granted the conditions are pretty definitely clear, correct? DOMINGO: Correct. GONZALEZ: And now they’re being amended to be a conditional condition, right? DOMINGO: That’s right. At that point I’m saying it’s kind of nebulous. GONAZALEZ: Right. And you think it should be more proper if they come back and ask for an amendment to the conditions, after the standard conditions are imposed, correct? DOMINGO: Correct. GONZALEZ: Okay. You know, I agree with you. But I think also what the aim of Commissioner Iwashita is here is to try and address the issue now to avoid the applicant from having to come back and also to avoid you guys having to, I mean, you can always hear it again, but trying to take care of as many things as possible now rather than stringing it out, as a matter of convenience and fairness to the applicant, to the community and to the Commissioners. So as long as it doesn’t create too much confusion and reek too much havoc with how the special permits are issued, I mean, it’s still within your authority and discretion to take the steps. So it’s a matter of preference on how you want to handle it, essentially. DOMINGO: Okay. Well, you know, it doesn’t really matter with me in a critical sense. But I’m thinking of how others look at the whole concept of an application for a special permit. And, of course, there have been several instances, I think I can describe it as many instances, where amendments to special permits already given were made and they were required to come to the Council for it. But I’m not equating the fact that, hey, this is a small area and perhaps we can just accept that and go ahead with what Mr. Iwashita is saying to the conditions where you give them the either/or, or if situation, then they have to come up with this. But if it sits well with the administration when you consider amendments and other issues and leaving the Planning Commission out of the, so call out-of-the-loop when you consider issues which change, which change the intent or the, yeah, the intent of the original application, then it’s something that we should think about. GONZALEZ: Well, sorry -. Well, Commissioner Domingo, I think that’s why you guys are voting on it now. It’s up to you if you want to let it proceed this way of if you want to let it proceed the way you described where they get the standard conditions and then they’ve got to come back. I mean it’s your vote. WOODWARD: Yeah, I think we were in the process of clarifying the amendments. So let’s do that and then take a vote. 21 EXHIBIT A DARROW: Well, if I could -. WOODWARD: Yeah, Jeff. DARROW: Real briefly, just address Commissioner Taka Domingo’s concern. Condition No. 2, the second sentence states “Any increase of the facility or expansion of operations will require an amendment to the special permit.” So basically if they do increase in any manner they will be required to come back to the Planning Commission, regardless whether or not the metes and bounds are in place. With that I’ll just go through the amended conditions briefly. Condition No. 3 the plan approval condition has been deleted. Condition No. 4 has an added sentence and I’ll try to state it, “If any issue arises that the applicants exceeded the permitted area,” and then the condition itself. Is that close or -? IWASHITA: If any issue arises as to whether applicant’s use exceeds the project area, or permitted area, whatever the term you prefer to use. DARROW: Thank you. Condition No. 6 has been amended to change the hours from 8 a.m. to 6 p.m. daily. Condition No. 7 has deleted the second sentence. And Condition No. 8 has time allowance added on to the condition to allow the applicants 36 months to be able to comply with this condition. Does that sound clear? IWASHITA: Yes. DARROW: With that I’ll take the roll. Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Ishibashi? ISHIBASHI: Aye. DARROW: Commissioner Au? AU: Yes. DARROW: Commissioner Domingo? DOMINGO: You know, Mr. Chairman, I have not been given an opportunity to respond to the motion to the amendment. If I may just make a short comment, or would you like me to just say yes or no? WOODWARD: Let me -. What would you say? GONZALEZ: Let him respond. There’s no motion to amend. 22 EXHIBIT A WOODWARD: Okay, yeah. All right, sure, if you just want to make clarification that’s fine. DOMINGO: What was that? GONZALEZ: There has been no new motion to amend. He was clarifying the motion to approve with the amended conditions. So there’s no new motion on the floor, Mr. Domingo. But if you want to address back to the motion on the floor -. WOODWARD: Yeah, if you just want to clarify, and then let us know your vote, that will be fine. DOMINGO: You know, I try to be as concise and to the point with regards to planning issues. And I’m not saying in this case that these people come to us. But in many cases we find people who try to skirt around issues, a requirement to the zoning or to other amendments of the Zoning Code. And I find that we should strictly adhere to the process and to the requirements of the conditions. And as a principle, as a principle, I would vote against this issue. I know there are votes that will adopt the permit, and I’m happy for that, I’d be satisfied with that. It’s just a matter of principle that I would vote no. WOODWARD: All right. DARROW: Thank you, Commissioner Domingo. Commissioner Kern? KERN: Aye. DARROW: And Mr. Chairman? WOODWARD: Aye. DARROW: The motion passes five to one. WOODWARD: Okay, thank you very much. Mr. Yeh, you and your clients will be notified. Thank you. YEH: Thank you, thank you. The discussion ended at 10:22 a.m. Respectfully submitted, Sharon M. Nomura, Secretary Windward Planning Commission 23 EXHIBIT A