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HomeMy WebLinkAbout2010-02-05 TMOOERS WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT FEBRUARY 5, 2010 GREGORY R. MOOERS (SPP 09-95) A regularly advertised hearing on the application of was called to order at 10:50 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 14 people from the public in attendance. APPLICANT: GREGORY R. MOOERS (SPP 09-95) Special Permit to allow the establishment of a country market and occasional special events for non-profit agencies within an existing covered equestrian arena on approximately 2.3 acres of land situated within the State Land Use Agricultural District.The property is located along the north (makai) side of Highway 19 and east of the Waimea Country Club golf course near the 51-mile marker, Waikoekoe, Hamakua, Hawaii, TMK: 4-7-7: portion of 40. WOODWARD: The next application is Item No. 3. There are two considerations here that make this a little bit unusual. One is that the applicant has requested a continuance till next th month, March 5 meeting, but we also have a filing for contested case standing. And so what we will do is get a very brief presentation from the Planning Staff, just for the purposes of familiarizing everybody with the basic application; and then take the, address the issue of standing for the contested case. There will be no decision with regard to the actual application today, at least assuming that we vote to continue it. So, Jeff, with that, if you’ll give us the lowdown. DARROW: Thank you, Mr. Chairman. I’m going to make it very short, very sweet. The applicant, Gregory R. Mooers, is requesting a special permit to allow the operation of a country market and occasional special events for nonprofit agencies within an existing covered equestrian arena on 2.353 acres of an approximate 73-acre parcel. The parcel is located just outside of Waimea to the south along the Hamakua coast. This is Hawaii Belt Road or Mamalahoa Highway. The Waimea Country Club is located just in this area right before Waimea town, directly next to the subject property. The actual subject property is identified in this area. 1 EXHIBIT B As you had mentioned, we have received a contested, a petition for standing in a contested case from a neighbor identified as Joanne Fredrick; and her property is also identified with a black outline; and that would be the rectangular property. It is located on Mudlane but it is within 500 feet of the subject application. The petition has been timely filed, along with the filing fee. And th the applicant has requested a deferral of the application until March, the March 5 Planning Commission. With that, that concludes the presentation. Are there any questions? WOODWARD: All right, thank you. Is the applicant here? I knew the applicant may not be here. But the representative? HIGGINS: Yes. My name is -. . WOODWARD: If you’ll come up, sir. Okay. If I could 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? HIGGINS: I do. GONZALEZ: That’s not the applicant. That’s the petitioner’s representative. WOODWARD: Okay. Oh, that’s the petitioner’s representative, okay. So we don’t have the applicant. th GONZALEZ: So just refer to the January 15 letter requesting a -. WOODWARD: Okay, we have had a request from the applicant to continue this matter to the th March 5 meeting. We do have an application for standing. And we have a letter, actually, from the applicant that said that they don’t have any particular problem with granting standing. But that’s our question today.You’re applying for standing? HIGGINS: I’m representing the petitioner for standing, yes. WOODWARD: Okay, if you’ll speak into the microphone and you may give us -. What we’re interested today and it’s really not so much necessarily the argument but the justification for standing. And that will be the only issue we’ll decide today, as to whether or not to grant standing in a contested case. So you can give us what information you want, then we’ll deal with that. And the actual matter itself, assuming that we vote to continue it, will be discussed and you’ll have a chance to present evidence at the next meeting. Do you understand that? HIGGINS: I understand. WOODWARD: Okay. HIGGINS: Yeah, with respect to the petition -. 2 EXHIBIT B IWASHITA: Mr. Chair? Mr. Chair? WOODWARD: Okay, excuse me. Commissioner Iwashita. IWASHITA: We still don’t have, we don’t have a name and address on the record. WOODWARD: Yes, if you’ll give us your name and address first, and then -. HIGGINS: David Higgins, Alston Hunt Floyd & Ing, 65-1241 Pomakai Place in Kamuela. WOODWARD: Okay. HIGGINS: With respect to the standing issue, my client, as the staff has indicated, has a lot that is, although not immediately adjacent to the applicant’s property, almost adjacent, one sliver of land between the two. She has experienced issues with noise from unpermitted activity that has occurred on the applicant’s property. It is our understanding, her understanding that the applicant has been using his property for unpermitted uses and is attempting to correct that by seeking a permit at this time. He has a loud speaker system that has been set up. He had scheduled a reggae concert in this arena at one time, that apparently was cancelled because of the complaint. And he has been conducting, what for lack of a better term, would be perhaps termed a flea market or swap meet on weekends there. And these all impact my client in a number of ways. She’s not going to oppose agricultural-related farmers market activities on weekends and other activities that are Ag related. But she’s concerned about the open-ended nature of the application; and she’s concerned about the history of this particular property. WOODWARD: Okay, Madam Director. LEITHEAD TODD: Yeah, I was looking at the request for a contested case standing. Many of the concerns expressed by the request are no different than what would be concerns of the general public. However, the specific issues as to the noise on her property I think are sufficient to say that she has an individual and unique interest in this application and should probably therefore be granted contested case status. WOODWARD: Okay, I would tend to agree.Does anybody have any further comments or questions? Commissioner Domingo. DOMINGO: I know they probably hold horse shows and rodeo activities there and it’s amplified. Is that a permissible use of the property? Does that give cause or reason to approve the contested case hearing? LEITHEAD TODD: I think what we have here is we’re not exactly sure what the PA system is used for, whether it’s used in conjunction with the specific uses they’re applying for, or whether it’s being used in conjunction with what I would consider permissible uses on Ag land. And I would consider the, you know, equestrian uses to be permissible. But because we don’t have that information on how it’s used and how it’s directed and the proximity of this landowner, I think that it is wiser to give her standing than to deny the standing and risk that later on you have 3 EXHIBIT B an appeal of that. I’m just saying that I think it’s in the applicant’s interest and it’s in the Planning Commission’s interest to give her that standing. You don’t have to go to a hearings officer but you need to give her the opportunity to participate in the process. And I just think that it’s always wiser when there’s any interest that has been identified that is unique to that individual as a part of the general public that you should give them standing. WOODWARD: All right, I would agree. One thing I would mention, too, though is that if we vote for standing in this case that you have a month and it’s really much better if you can, if the party, the Hendersons, can deal with the applicants in the meantime, it makes everything a lot easier for everybody, to go over some of these issues. And if we, you know, if you come to us with a resolution rather than a problem it’s a lot easier. So that’s my only caveat since we do have that time. HIGGINS: May I respond? WOODWARD: Yes. HIGGINS: That is my client’s intention. I’ve known Mr. Mooers for a long time. You know, I’ve had a couple of conversations on the phone since I was retained. And it is our intention to work diligently toward a resolution of this issue within the next month. So we intend to work with one another and with the staff to try to fashion some conditions that would be acceptable all around. I can’t predict whether we’ll be successful but that is our intent. WOODWARD: Perfect. That’s all I was hoping to hear. Okay, do we have a motion to grant standing in this case? Commissioner Domingo. DOMINGO: Move to grant standing. WOODWARD: Second? KERN: Second. WOODWARD: Okay, motion has been made and seconded to grant standing to the Andersons in this case. LEITHEAD TODD: Fredericks. WOODWARD: Fredericks, excuse me. Jeff. DARROW: Thank you, Mr. Chairman. The motion before us is to grant standing to Joanne Frederick. With that I’ll take the motion. Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Kern? 4 EXHIBIT B KERN: Aye. DARROW: Commissioner Au? AU: Yes. DARROW: Commissioner Ishibashi? ISHIBASHI: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. Just a clarification, too. The letter in the record is by Joanne and her husband. So her husband also, D. K. Howell? WOODWARD: Yes, yes. IWASHITA: Are we granting standing to both or just one? GONZALEZ: I think it’s just one. WOODWARD: Who requested this? IWASHITA: Mr. Higgins, I address that to you. HIGGINS: The application was submitted just by Joanne Frederick. I can represent that her husband is fully supportive of what she’s doing. But they’re a private couple and she doesn’t, neither she nor her husband are comfortable in a public setting, hence they’ve retained my services. But my client is only Joanne Frederick and she’s the only petitioner for standing. And I’m just making a representation that her husband is fully supporting her position in this. WOODWARD: All right, thank you. IWASHITA: Thank you. WOODWARD: Your vote, sir? IWASHITA: Aye. WOODWARD: Okay. And -. DARROW: Mr. Chairman? WOODWARD: Aye. DARROW: The motion passes six to zero. 5 EXHIBIT B WOODWARD: Okay, thank you. You’ll be notified.The next question that we need to address is continuing this matter until next month. Do I hear a motion to continue this? GONZALEZ: Mr. Chair, staff -. WOODWARD: Excuse me? GONZALEZ: The staff has, we need to continue to April. WOODWARD: April, oh, okay. GONZALEZ: I know they requested March but we’re going to have to continue, continue to another month. WOODWARD: Okay. All right. Very good. Did you hear that, sir? It’s going to be April. March is full. HIGGINS: Yes. GONZALEZ: So do I have, hear a motion to have this continued until the hearing in April? DOMINGO: So move, Mr. Chairman. WOODWARD: Second? KERN: Second. Okay, Jeff. DARROW: The motion before us is to continue this matter until the April Windward Planning Commission. With that I’ll take the roll. Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Kern? KERN: Aye. DARROW: Commissioner Au? AU: Yes. DARROW: Commissioner Ishibashi? ISHIBASHI: Aye. DARROW: Commissioner Iwashita? 6 EXHIBIT B IWASHITA: Yes. DARROW: And Mr. Chairman? WOODWARD: Aye. DARROW: The motion passes six to zero. WOODWARD: Okay. IWASHITA: Mr. Chair? WOODWARD: Yes, Commissioner Iwashita. IWASHITA: Do we also need to make a determination as to whether we will hear it, the Commission will hear the contested case, or for a hearings officer to be appointed? WOODWARD: Well, I think since there are number of unknowns that we will address that when we hear it, because there is going to be potentially a resolution set up in the meantime. So I would, you know, I would not make that determination until we actually have the applicant have a chance to respond, etc. IWASHITA: So I’m not clear what’s being continued to April then. WOODWARD: The hearing, hearing the application. IWASHITA: That’s in the contested case format? WOODWARD: Right, correct. IWASHITA: So that by implication the Commission is going to hear it? LEITHEAD TODD: The Commission is going to hear it. WOODWARD: Right, yes, yes. IWASHITA: So there’s no need to make a separate determination. LEITHEAD TODD: Yeah, no hearings officer. WOODWARD: No, not at this point. I mean if, if it becomes obvious during that application, the hearing of the application that it’s going to require a hearings officer, then we make a determination at that time. But at the outset I would plan on hearing it here. 7 EXHIBIT B LEITHEAD TODD: Norman, you can address that? Because I think once we kind of commit to putting it on the agenda then the Planning Commission is, in fact, the body that will be hearing the contested hearing. HAYASHI: Yes. I think Commissioner Iwashita had brought up a good point. I think we would like to see the Commission hear this application and perhaps the Chair or the Commission should make a decision today as to whether to appoint a hearings officer or the Commission themselves will hear this case. And if you do decide to hear it yourselves, then this matter will be placed on the April agenda. WOODWARD: That was my intention. But if we need a motion to clarify that, then does anybody want to make a motion that the Planning Commission hear this? IWASHITA: I do. WOODWARD: Okay, second? DOMINGO: Second. WOODWARD: Okay, I’ll just take a voice vote. All in favor aye? COMMISSIONERS: Aye. WOODWARD: Any opposed? Okay, it’s unanimous the Planning Commission will hear this matter on the April meeting. And for the record there was nobody from the public signed up to testify on that matter. The discussion ended at 11:11 a.m. Respectfully submitted, Sharon M. Nomura, Secretary Windward Planning Commission 8 EXHIBIT B