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HomeMy WebLinkAbout2003-02-21 tkamuela PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT February 21, 2003 A regularly advertised public hearing on the application of KAMUELA CONGREGATION OF JEHOVAHÓS WITNESSES (SPP 01-019) was called to order at 2:03 p.m. in the County Building, Councilroom-Room 201, 25 Aupuni Street, Hilo, Hawai`i, with Chairperson Fred Galdones presiding. PRESENT:Fred Galdones ABSENT & EXCUSED: Geraldine Giffin Earl Fujikawa Hannah Springer Florence Kubota Jeffrey McCall Aurelio C. Mina, Jr. Francis Smith Bill P. Thibadeau Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Alice Kawaha, Staff Planner Susan Gagorik, Staff Planner Esther Imamura, Staff Planner Glenn Ahuna representing Department of Water Supply And approximately 50 people from the public in attendance. @OOKHB@MS9J@LTDK@BNMFQDF@SHNMNEIDGNU@GlRVHSMDRRDR (SPP 01-019) - Continued hearing, including dirbtrrhnmnmsgdGd`qhmfNeehbdqlr Findings of Fact, Conclusions of Law and Recommendation, and any exceptions and/or oral arguments of the parties, on the application for a Special Permit for the establishment of a church and related improvements on approximately 0.5 acre portion of a 5.006-acre parcel in the State Land Use Agricultural District. The property is located in the Kauakea Subdivision, at the west corner of Kauakea Road-Mmalahoa Ghfgv`xhmsdqrdbshnm+Otktj`otGnldrsd`cr1mcRdqhdr+Otktj`ot+RntsgJng`k`+ G`v`hkh+SLJ95,3,17: Portion of 23. GALDONES:Commissioners, we are on Agenda Item No. 7. The Applicant is Kamuela Congregation of JehovahÓs Witnesses. This is SPP 01-019. This is a continued hearing, including discussion on the Hearing OfficerÓs Findings of Fact, Conclusions of Law and Recommendation, and any exceptions and/or oral arguments of the parties, on the application for a Special Permit for the establishment of a church and related improvements on approximately 0.5 acre portion of a 5.006-acre parcel in the State Land Use Agricultural District. Alice? Commissioner Fujikawa? EXHIBIT B FUJIKAWA:May I call for an Executive Session? GALDONES:The purpose of the Executive Session? FUJIKAWA:This is the, regarding the recommendation of the Hearing Officer, recommendation. GALDONES:Counsel? TORIGOE:I just want to clarify, Mr. Fujikawa. Are you asking to confer with counsel for legal advice regarding the Recommendation? FUJIKAWA:Yes. TORIGOE:Okay. GALDONES:Is there a second to hold the Executive Session? KUBOTA:I second. GALDONES:It was moved by Commissioner Fujikawa and seconded by Commissioner Kubota that the Planning Commission go into Executive Session. Any discussion? All those in favor say aye? COMMISSIONERS:Aye. GALDONES:Opposed, nay? Motion carried. Staff, would you prepare the room for Executive Session, please? EXECUTIVEThe Commission went into Executive session at 2:04 p.m. SESSIONand came out of executive session at 2:17 p.m. GALDONES:This Hawaii County Planning Commission meeting is back in order. I thank the public for your understanding to allowing the Planning Commission to get into Executive Session. There were some subject matters that we needed to clear with our Corporation Counsel. Alice, presentation of staff? KAWAHA:First of all, I just wanted to make mention that the materials that went through the Contested Case Proceedings with the Hearing Officer Casey Jarman were distributed to the Planning Commissioners. And that included the Hearing OfficerÓs Recommendation, the ApplicantÓs Exceptions to the Hearing OfficerÓs Proposed Findings of Fact and Conclusions of Law and Recommended Order, the IntervenorÓs Exceptions to the Hearing OfficerÓs Proposed Findings of Fact and Conclusions of Law and Recommended Order. 2 Also, there were three letters that were also distributed to the Commissioners, one from the Applicant requesting that they be given, that theyÓd be able to give oral arguments today. Same matter came from the Intervenor Thomas Wilson, and Corporation Counsel Patricia OÓToole representing the Planning Director. If I can just take your attention to the location map for the purposes of the new Commissioner. This is a location map. This black line here is the Mamalahoa Highway. The subject property is here dotted in blue. ItÓs presently zoned Ag 5-acre. ItÓs adjacent to the Nani Waimea Subdivision, which is zoned Ag 1-acre. The properties on the Honokaa side of the subject property is zoned Ag 40-acre. For the CommissionersÓ information, as well as the public, the site plan thatÓs up here is the most current site plan that was submitted by the Applicant. For location-wise, this here is the Kauakea Road. Mamalahoa Highway is here at the bottom. This structure here, proposed structure as well as the parking area, this is the proposed site for the subject church; and these two structures are the existing dwelling and garage. Also, for the CommissionersÓ information, based on the Planning calculations, this area here is about half-an-acre and the area of the existing dwelling with the driveway is about 3,398 square feet. Are there any questions? GALDONES:Commissioners, any questions of Alice? KUBOTA:Mr. Chair? GALDONES:Commissioner Kubota? KUBOTA:Alice, Alice? KAWAHA:Yes. KUBOTA:Three thousand, the existing structures are how much, how big an area, again, please? I heard you say 3,000. What was that contiguous figure, or was that for that part alone? I guess thatÓs my question. KAWAHA:That figure is the two structures and the driveway, contiguous driveway leading to the structures. KUBOTA:Show me the contiguous driveway, please? KAWAHA:This is coming off of Kauakea Road and this is the drivew KUBOTA:Okay. So that area is 3,000-plus? 3 KAWAHA:Yes. And that figure is based on the Planning DirectorÓs, Planning DepartmentÓs calculation; and thatÓs stated in the Declaration of Rodney Nakano, which was an exhibit from the Planning Department. KUBOTA:Yes, yes. Okay. Thank you. GALDONES:Commissioners, any further questions of Alice? Hearing none, is the Applicant or the ApplicantÓs representative present? Would you please come forward? Would you please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? FIGUEIROA:I do. GALDONES:Would you please state your name and your residence, please? FIGUEIROA:My name is Roy Figueiroa. I live at 378 Nikohu Loop, Kahului, Maui, Hawaii. GALDONES:Mr. Figueiroa, have you received the Hearing OfficerÓs Recommendation? FIGUEIROA:I have. GALDONES:Do you have any comments to that document? FIGUEIROA:I listed my exceptions to her Findings and Conclusions. I filed that, I believe, with the Planning Commission. GALDONES:Do you have anything that you would like to add to that or you would like, do you wish to allow that document to stand on its o FIGUEIROA:Well, I did want to present our arguments on this case. We were given a short time to discuss this at our last hearing on January 13, 2003. Reviewing the Findings and Conclusions of the -. IÓm sorry, should I stop at this point? GALDONES:Are you going to be presenting your oral argument now? FIGUEIROA:I donÓt know what the procedure is for your Commission, so, I was just asked to come forward. But when youÓre ready for oral argu prepared for that. GALDONES:Oh, okay. I will present it to the Commissioners, whet be allowing oral arguments or not. We have received letters of requests to present oral arguments and we will, at first, act upon those, whether we will allow oral arguments to be accepted. And, at that time, if you wish to then you may present your oral arguments. 4 I just would like to receive anything that you would have aside from your oral arguments, which you can present that at a later time. We also have some testifiers from the public who have signed up. I will allow them to make their presentation and then after that is through, then we will go into the oral arguments before we go into decision-making. FIGUEIROA:Thank you, Mr. Chair. GALDONES:Mr. Figueiroa, you may stay there. IÓd like to call upon the Corporation Counsel and, also, the Intervenors to the table. Will you please raise your right hands? Do you swear or affirm to tell the truth on this subject matter now before the Hawaii County Planning Commission? TESTIFIERS:I do. GALDONES:You have heard the procedure that we will be following. Before we go into these oral arguments, is there anything that you would want the Commissioners to consider? OÓTOOLE:Well, we are in agreement with the Hearings OfficerÓs report but we also did request oral argument to respond to whatever the petitioners have to say. GALDONES:Okay. Mr. Wilson? T. WILSON:We agree with the result that the Hearings Officer has recommended. We do have a number of issues with some of the factual Findings of Fact, and Conclusions of Law. We have submitted our own proposed Find Conclusions; and I guess we would like to speak a little bit to that at the appropriate time. Thank you. GALDONES:Okay. Thank you. If you folks may step back for a mom have six individuals who have signed up to present testimonies and I would like to call upon them. We have six chairs here at the table so you may come individuals are Laurie Stenger, John Wood, Denise Kamimura, Wayne Yamanaka, Ricky Kamimura and Lillian Kamimura. Will you please come forward to your right hands? Do you swear or affirm to tell the truth on this subject matter now before the Hawaii County Planning Commission? TESTIFIERS:I do. GALDONES:Okay. I will start to my left here. You will have to microphone so we can have you folks recorded. Please state your name and your resident address. 5 L. KAMIMURA:My name is Lillian Kamimura and my address is P.O. B Kamuela 96743. GALDONES:You may begin with your testimony. L. KAMIMURA:Okay. I was born and raised in Hilo but have been a resident of Waimea for 47 years and have been one of Jehovah Witnesses for 4 four grown children all of whom are Jehovah Witnesses as well. And around 1961, our family became the first ones living in the Subdivision, which is right next to the lot in question. And this entire subdivision, some of which lots are around 7,500 square feet, was classified as ag land according to the real estate tax we paid while living there, although most did not use it for that purpose and was never stipulated to do so. And all the years I lived in Waimea, I have never seen the property in question put to good use agriculturally or otherwise, except for a little square paddock in the corner with a couple of horses in it for a short time. I remember that because I used to take my children to visit these horses. Originally, my children and I drove to Kohala for worship when the road to Kohala was at times foggy, it was always narrow and in many places without shoulders, besides being a free range for cattle. When the new highway between Waimea an completed, we were assigned to Honokaa. My personal experience is that I have seen a number of individuals with social problems make positive changes in their lives all due to having a Bible s Witnesses and attending meetings at our Kingdom Hall (or church) the way, are held in a warm but dignified manner to assist us to live up to the high standards of the Bible, and also try to encourage others in our community to do so for their benefit. This is reflected not only by what happens within the walls of the ÐchurchÑ but also how the Kingdom Hall is built and maintained. Our buildings are always in very good taste and landscaped to beautify the area. After all, we worship the Most High of the universe and, so, it will be necessary to do so. Throughout my ministry, I have had the privilege of working not only with adults but with teens and young adults who are wholesome and respectful, and they donÓt use profanity nor drugs. Not only that but they voluntarily use their time of youth to help others to do the same, and so they are a good influence on still other youths. IÓve watched them grow up to be responsible and productive adults. So the Kingdom Hall or church has high standards and used for a noble purpose. It will benefit the community as well as enhance this property. With all due respect, IÓm really hoping that you will approve this project. Mahalo. 6 GALDONES:Thank you, Mrs. Kamimura. Commissioners, any questions of Mrs. Kamimura? Hearing none, sir? YAMANAKA:My name is Wayne Yamanaka. My wife, Barbara, and I live in Waikoloa with our three children, ages 8, 6 and 4. We are also members of the Kamuela Congregation of JehovahÓs Witnesses and, such, we do regard all of our meetings as an essential part of our worship. As you might agree that, in todayÓs world, raising children these days are quite challenging. And itÓs at these meetings that we can learn how to apply and to live by Bible standards and principles. And by striving to raise our children to be in harmony with these principles, they, for example, can learn to hate violence, to respect authority and, also, have genuine love for their neighbors. As you are currently aware, we share our congregation meetings with a hall in Honokaa. We make the hour- and-a-half trek twice a week, which our Tuesday night meetings are for us as families quite challenging also because we have their school routine to consider. Having a hall in Kamuela would certainly not only benefit my family but many othe same drive. Personally, I truly feel that this hall would certainly be an asset to the community and, economically, with the rising cost of fuel, it would certainly save a lot of expenses and time, also. So, with that, I do thank you for listening to my personal views and I do hope that the members of the Planning Commission, likewise, would approve this application. Thank you. GALDONES:Thank you, Mr. Yamanaka. Commissioners, any questions of Mr. Yamanaka? Commissioner Kubota? KUBOTA:Mr. Yamanaka, you felt that this addition of your church structure would be an asset to the community or that area. How do you think, in what way would it be an asset? YAMANAKA:Well, as Mrs. Kamimura mentioned, what we can learn, we go out and help to teach the Bible message to all those in the community. And from what IÓve experienced as an individual, myself, I have really appreciated the fact of how it changes oneÓs personality for the better and, at that, making better citizens for the community certainly would benefit the community in general. KUBOTA:YouÓre talking about the religious aspect of it, perhaps? YAMANAKA:Respect of, yes -. KUBOTA:Thank you. YAMANAKA:Authority. KUBOTA:Character-building and so forth. Thank you. 7 GALDONES:Commissioners, any more questions? MaÓam, please state your name and your resident address? STENGER:My name is Laurie Stenger, P.O. Box 38-3399, Waikoloa, H 96738. And as a young person, I see the need and importance of having a Kingdom Hall in the territory. ItÓll not only provide closer, itÓll not only be closer to my home but at a convenient situation for the many youths that live in Waikoloa a meetings are very beneficial for the lives of the young people today. For example, I see my classmates that I once went to school with, many who now have babies or toddlers and married and unhappily trying to take on a heavy responsibility but unable to do so because many are addicted to drugs or turning to alcohol. And the result is a feeling that they have no purpose in life and the person that they thought they were going to be, they are not. By attending and participating with the Congregation of JehovahÓs Witnesses has provided a purpose for my life as well as assure hope for the future. And at these meetings, myself and the other young people in the congregation have come to understand the principles and guidelines set out in the Bible and that the young ones in our congregation have really applied the guidelines in the Bible; and the result has turned out to be a feeling of security and appreciation for life. And IÓve told, IÓve mentioned to the young people in our territory about the Bible, these courses given at the congregation meetings, and many of whom hav them. And since a Kingdom Hall would be in a community, it would be a convenience for them since many have school or work schedules. And I hope you can consider these very important reasons for us to have a Kingdom Hall in our area. Thank you. GALDONES:Thank you, Ms. Stenger. Commissioners, any questions of Ms. Stenger? Hearing none, sir? Please state your name and your resident address, and you may begin your testimony. R. KAMIMURA:My name is Ricky Kamimura. IÓm at 65-1323-C Kawaiha Road, Kamuela, Hawaii 96743. Obviously, IÓm not the Applicant but I am the owner of the property. And I would like to just give a little background of how we came about, I came about purchasing that property. Back then in the late 1999-1998, I was part of a committee by the congregation to search out for property in the Kamuela or Waikoloa area. As in the hearing before this, it was presented in the minutes that all of the different businesses that we went to, well over 20-something different businesses as well as different properties that we looked at to be able to build a Kingdom Hall on, and each one had different types of situations where it was not ADA-compliant and we have three individuals that require this within our hall, or, it was not, the space was not large enough to be able to hold them. We even looked at different properties with Hawaiian Homes, as well as State, as well as Parker Ranch. And then in March of 2000, about at that time, a realtor who I knew very well, who knew that I was looking for property in Kamuela, Regan Matsumura from Parker Ranch Realty, found this property for sale; and thatÓs when I, he called me up and I pursued that. 8 I got the documents on the property. At that time I took it to a real estate attorney that I do business with. She reviewed all the documents that was attached to it, to that property, and felt that it still falls within the State Land Use Ag District, and a Special Use Permit can be obtained. I then drove to Hilo, went to the Planning Department here and showed them that same information. They also pulled whatever information they had on then took it to the back, to the DirectorÓs office and had a short meeting and brought it back out and also told me that I could also apply for a Special Permit on this property. At that time, also, a Special Permit was obtained earlier. It was a Miranda Trucking business within the subdivision right next to mine. Since then the RT Service also was able to obtain a Special Permit. I understand it went to court, the court upheld you folksÓ decision. It went to Appeals Court and just recently that was upheld saying that you were within the rights. I just want to comment on one other thing that I noticed in Mr. and Mrs. WilsonÓs, it can be discussed in the Final Arguments, and they talk about Kauakea Association, and I just wanted to let the, being that I am a landowner there and are concerned about that. This Kauakea Association was started back in around 1984; and then up to, before the hearing, the last meeting was in 1989. And then, at that time, just recently, while were in contested hearing before the Hearing Officer, and that one member of, one homeowner within the subdivision went back to open this back up. ItÓs because, I have a letter here from the Department of Consumer Affairs, and theyÓre saying that in February 26, 1990, it was dissolved because of delinquent filings in 1984, 1987, 1988 and 1989. The Wilsons will be, have attached a letter from the Kauakea Association that was dated October 29, 2002, signed by Mona Lisa Woods. And I just want to make note that at that time she, also, at that time, applied for, on her own, without the permission of the rest of the homeowners to re-open that incorporation. Though itÓs our feeling, and in the meeting of the homeowners, it was made known that none of the ot owners of the property consented to that. So I just wanted to make that part clear that that letter was not from the Kauakea Association but from Mona Lisa Wood and, as I just talked to her earlier and her husband, but that does not represent the Kauakea Association. Thank you. GALDONES:Thank you, Mr. Kamimura. Commissioners, any questions of Mr. Kamimura? MaÓam? Please state your name and your resident address, and you may begin your testimony. D. KAMIMURA:Denise Kamimura, 64-5216 Puu Nohea Street, Kamuela, Hawaii 96743. You can succeed regardless of your upbringing. What can your marriage. Making your youth a success. How can you make g I donÓt use drugs. How to cope with stress. You can cope with discouragement. How to speak clearly. Correct pronunciation. Factors to consider. How to read accurately. 9 These are few examples of what we have learned and will be learning in the next few months at any Kingdom Hall of JehovahÓs Witnesses, free of charge. It is from these meetings held at a Kingdom Hall of JehovahÓs Witnesses my family and I have greatly benefited from. For example, we enjoy happy family life despite normal problems economically, physically, emotionally. So having easy access to these kinds of meetings held at a Kingdom Hall located in a community in which we live will benefit not only my family but other individuals and families in the community. GALDONES:Thank you, Ms. Kamimura. Commissioners, any questions? If not, sir? Please state your name, your resident address and you may begin your testimony. WOOD:My name is John Wood. My address is P.O. Box 1650, Kamuela Hawaii. IÓm here today as an officer of the Kauakea Community Association. I just want to -. GALDONES:Could you bring the microphone closer to you. WOOD:Oh, IÓm sorry. Is that better? GALDONES:Thank you. WOOD:IÓm here on behalf, IÓm an officer of the Kauakea Community Association. The five lots in the subdivision where youÓre considering issuing a permit make up the Kauakea Community Association. Since the subdivisio Association has always owned the private drive that allows access to the five lots. ItÓs accessed from Mamalahoa Highway. Basically, we want to make it clear that is a private drive, itÓs not a public street, itÓs not a County road. And I donÓt believe that that drive was constructed to any specifications to meet a County road, looking at it myself, by just looking at it. I believe the road wasnÓt designed to handle heavy commercial traffic or such as that youÓve allowed by giving a Special Permit to RT Services. WeÓre concerned that neither the Planning Department nor the Commissioners has enforced the conditions you imposed up you issued that Special Permit within our subdivision. You stated they had to adhere to certain things like keeping the road in the condition it was before they started their operation, they havenÓt done it; and no one has enforced it. Now youÓre considering yet another Special Use Permit thatÓs going to result in further physical damage to the road and, also, increases the liability exposure for property damage and bodily injury to the Association because we own that private drive. We donÓt believe that just because our Association did not formally oppose a Special Use Permit that you issued to RTÓs and we have not formally opposed 10 considering here today, we still donÓt think, though, because we have not opposed it that you should issue a permit that results in damage to a property owner, to the Association that owns that private drive. WeÓve requested that the Commission or the Planning Department enforce the conditions it placed when you issued the Special Permit, and nothing has been done so far. I should say that RT has done some patching but the patching actually almost makes the condition worse Òcause thereÓs patches on top of patches now. WeÓre at a point where weÓre going to consider maybe weÓre going to have to resurface the road which is going to cost thousands of dollars. The Applicant here today, too, we should point out is not an owner of one of the five lots. So as an Association, our by-laws arenÓt binding on these corporate entities that you allow to come into our Association and do business and run commercial operations. So IÓd just like you to consider that. GALDONES:Thank you, Mr. Wood. Commissioners, any questions of Mr. Wood? Hearing none, thank you very much. You may step back. Commissioners, there have been requests by the Applicant, Corporation Counsel and, also, by the Intervenors to present oral arguments. I would entertain a motion to that effect at this moment. Commissioner McCall? MCCALL:I move we allow the oral arguments by the associated part GALDONES:Is there any second to that motion? FUJIKAWA:Second. GALDONES:It has been moved by Commissioner McCall and seconded b Commissioner Fujikawa that we allow oral arguments from the parties requesting. Any discussion? KUBOTA:Question, Mr. Chair? When you say oral arguments, are you referring to final arguments or are they separate from final arguments? GALDONES:IÓm sorry. That would be the final arguments. KUBOTA:This is, the oral argument that weÓre authorizing, weÓre asked to authorize now is considered the final argument? GALDONES:Before decision-making, yes. KUBOTA:Thank you. GALDONES:Any further questions or discussion on the motion? Hearing none, all those in favor of the motion say aye. COMMISSIONERS:Aye. 11 GALDONES:All those opposed, say nay. Motion carried. Could we have the Applicants, Corporation Counsel and the IntervenorsÓ representative, please come forward? Mr. Figueiroa, I have already sworn you in. For the other two parties, could you please raise your right hands? Did I swear the rest of the parties in? TESTIFIERS:Yes. GALDONES:IÓm just having a senior moment here. Okay. Mr. Figueiroa, as the representative of the Applicants, you may have the first opportunity to present oral arguments. FIGUEIROA:I see. Just for a point of clarification, would that mean, also, that I would have the opportunity to give the concluding argument, pursuant to your rules? GALDONES:Yes, as a rebuttal, yes. FIGUEIROA:Do you wish me to proceed now? GALDONES:Yes, you may proceed. FIGUEIROA:Okay. Thank you, Mr. Chairman, and members of the Commission. My name is Roy Figueiroa. IÓd like to clarify that IÓm not an attorney. IÓm one of JehovahÓs Witnesses. Now IÓve known many of these people about 40 years ago I walked this same area, going from house-to-house, when I lived on this island. And I really enjoyed the hospitality of these people and the people in the community. So the point is that the members of this congregation, many of them have been here a very, very long time, and still they donÓt have a permanent place to observe their worship. TheyÓve been moving from place-to-place trying to establish a place that they could carry on their worship, and they found that itÓs not easy to find. Even the Planning Director testified that itÓs hard to find zoned locations where churches which is why, according to the Director, they look favorably upo an agricultural district. Now he does have some opinions on the limitations that would be placed on this but, as he said, it could be a special use in an agricultural district. So what we have before you, then, is an application for that special use. The question came up during the proceeding is does the Planning Commission have the right to approve that use? It sounds like the Planning Director believes so. The Hearings Officer, also, believes that. But the Intervenors would have you to believe otherwise, that you donÓt have the right. They believe that the right was taken away by Ordinance No. 889, and their belief was discussed in the course of the hearings; but that opinion was rejected by the Hearings Officer. After all, the State Land Use regulations say you have the right to approve Special Permits for lots less than 15 acres. The County Charter enabled you 12 to establish rules, and Rule No. 6 says you can approve Special Permits in agricultural districts. Also, Ordinance No. 889 is part of the County ordinance. It does not exist a part and separate from the Hawaii County Code and was never mean Now, the Hawaii County Code lists churches as a use in an agricultural district if a Use Permit is obtained. So we feel that Rule No. 6 lays out the process for obtaining this Special Permit. Now if you were to have the belief that Ordinance No. 889 were separate and a part from the County Code, then what would be your required height limits on this particular lot? What would be your yard setback requirements? ItÓs not mentioned in Ordinance No. 889 because Ordinance No. 889 is a part of the Hawaii County The rules of the Planning Commission and the State Land Use Commission require that certain criteria are met in order that the special use be approved. We believe that all of those criteria have been met by this particular application by the Kamuela Congregation of JehovahÓs Witnesses. And if you look at our proposed Findings and Conclusions, we state why we believe we met all the criteria. But IÓd like to f where the Hearings Officer felt, in her opinion, that the criteria for the Special Permit was not met. Now, for example, does the proposed church use within a half-acre portion of a lot in an agricultural district promote the objectives and effectiveness of HRS, Chapter 205? We know that this is a question that, you know, even I wrestled with, you know, how does it promote those objectives and effectiveness of HRS, Chapter 205 relating to agricultural districts? But then when you think about the State Land Use law, they stated what their objectives were. Now how did they try to see that their objectives were met? Well, they promulgated rules and regulations whereby it would not contradict their objectives and effectiveness of their, that State Land Use law. So, in effect, they set out the guidelines on how non-agricultural uses could be considered then in Special Permits. Therefore, we feel itÓs reasonable to conclude when these criteria are met, all of the rest of the criteria just like the Hearings Officer concluded to a reasonable degree, then the State Land Use law achieved what it set out to do, and that the proposed use meeting these criteria, would not be contrary, then, to the objectives and effectiveness of Chapter 205. Consider this, itÓs a half-acre for a church use out of a five-acre lot. Consider that 90 percent of the lot is still available for agricultural use. Consider a site that has been unused for agriculture for 20 years. Consider a site that is part of an agricultural subdivision that has no agricultural activity. So is the proposed use an unusual and reasonable use of the land? We feel reasonably the answer has to be Ðyes.Ñ 13 Now the only real objection that I hear from the Planning Director is that the proposed church does not lie within a half-acre portion of the lot, together and contiguous with the existing dwelling and garage. It seems like that is the point that goes contrary, as far as what weÓre presenting, goes contrary to his opinion on that. But no matter how many times I read the ordinance, no where in the ordinance does it state that requirement. It talks about the half-acre but it never states that it has to be continuous or part of the same footprint. So we never can draw, really, according to the ordinance an imaginary one-half-acre boundary around a certain portion of the property and every building or every use has to be within that imaginary boundary. Keep in mind, also, that Ordinance 889 defines that a property is deemed to be appropriately used for agriculture when only 50 percent of the lot is actually used for agricultural activity. So this proposed project shows less than a half-acre of land occupied by the existing dwelling, existing garage, proposed church and the proposed parking; and this is even as calculated by the Planning Department. If you read the Declaration of Rodney Nakano, he stated that, when he drew the footprint, he tells you how much area is allotted. Nowhere does it reach a half-acre. As part of the Declaration, he tells you what a half-acre would involve, but he doesnÓt say that this building and the proposed buildings occupy that amount of property. So we should really look this, at this Special Permit, and judge as to what it is. ItÓs not a farm dwelling. We know it is a church use. Now regarding the IntervenorsÓ objections to this project, they say they want Ordinance 889 and the subdivisionÓs CC&Rs to be adhered to. But it seems from the actions and testimony of the Intervenors that they are being very selective in this opposition. For example, are there any lots in this subdivision being used for agricultural activity? Not by the definition of Ordinance 889. Note that the lot right next to the Wilsons was subdivided by the CPR process where each lot is now less than the five-acre minimum set by the ordinance. Mr. Wilson said in testimony he had no objection to that, none. All we want is a small piece of property so that we can peacefully pursue our way of worship. Now we donÓt want to cause any ill-will in the community. ThatÓs just the opposite of what weÓre trying to accomplish. And so we had hoped that during the course of this process, we could convince the Wilsons and the Planning Director that our request is reasonable and consistent with law. Now we are a modest group as you can see. ItÓs not a large group. We have a very modest project. ItÓs a small project in an agricultural district. And we want to be good 14 neighbors. We tried to locate this use as far away as possible from the other neighbors. If you notice, itÓs the farthest part of the property from the neighbors. So, you know, IÓm sure when, if we are able to do this, if we ar approved, weÓre able to put up the project, when the Wilsons finally decide to move into this community, I think theyÓll find what I found out 40 years ago. ItÓs a community that cares and goes out of its way to be hospitable, and that use would be a real asset to the community. But we know that the Commission must look at the facts presented, so we earnestly request your approval of this request by the Kamuela Congregation of JehovahÓs Witnesses. Because we believe that approval of the Special Permit will be consistent with law and the facts presented to you. So weÓd like to thank you for your kind consideration, your patience, in being willing to listen to our request. GALDONES:Thank you, Mr. Figueiroa. Commissioners, are there any questions of Mr. Figueiroa? Hearing none, maÓam? State your name and your resident address and you may begin your testimony. OÓTOOLE:Patricia OÓToole, 1675 Oneawa Way, Hilo. IÓm representi Planning Director. We are in agreement with the report from the Hearings Officer. This was the position that we had taken and I believe that the Commission had taken, also, in the prior RT Towing Special Permit. And that is that the, you know, the Director has to enforce State and County laws and we have a Special Permit process, which is set out in Statute. We have the County zoning authority which is also set out in Statute. So we have to reconcile the Zoning Code and Ordinance 889, specifically, which talks about these five properties, these 5-acre lots. And the language that we believe indicates that a Special Permit could be applied for on one-half acre is that the ordinance says that one- half acre can be used for dwelling purposes. All of the rest of the acreage should be used for agricultural purposes. Now what we have here is a 5-acre lot on which there is no agricultural use currently, we admit that, and in which there are two structures. Now, one is a dwelling and one is either a garage or storage structure. I think the point is not whether or not there is ag currently going on but that this property has been recognized as being suitable for agricultural use. The soils are prime or fair and, therefore, they potentially can be used. It is a County policy to preserve and protect, as well as a State policy to preserve and protect, agricultural uses. I think the more you allow building on that property with no ag use, then you are, in effect, removing that potential. IÓm a little confused by the calculations that Mr. Figueiroa tal through this hearing, the application, the written application stated that their church would be using one-half acre. During the course of the hearing, the maps and drawings that they brought in clearly showed it was more than one-half acre. The Hearings Officer 15 allowed them to go back and re-calculate and re-draw it and come back to the hearing, which we did. And then, again, we were back at one-half acre just for the church, not counting the houses. But at least the church was down to one-half acre. Then there was more questions about exactly what were the dimensions. So they re-submit another set of drawings. And the hearing was closed, though, but they submitted new drawings. And in response to those drawings is when we submitted Rodney NakanoÓs Declaration. Because he had a, he calculated in accordance with the way the department would be including the roof eaves, which they did not and so forth, and he came up with his calculations. And they clearly state that the church itself would take up half-an-acre, and that the other dwellings and driveway that are currently existing are, is additional acreage; and Mrs. Kubota questioned that. That would be an additional few thousand feet. So we do not believe that this application promotes the effectiveness of HRS, Chapter 205 because, simply because it is not in conformity with the ord promote agricultural use by having that much of the property taken up with non- agricultural purposes. Therefore, we ask that you adopt the Hearings OfficerÓs report and deny the request for the permit. GALDONES:Thank you, Ms. OÓToole. Commissioners? Commissioner Kubota? KUBOTA:This is a question for both Pat and Mr. Figueiroa. You referred to, in your presentation, you referred to something -. I followed you all the way except at this 50 percent in ag use area and then itÓs deemed to be in conformance with the use of the ordinance, is I thought what you said. Now 50 percent and half-an-acre out of a 5-acre lot is quite a discrepancy there. Can you, both of you, explain to me what this 50 percent represents and how you interpret it to be in conformance and how the County says itÓs not? I get kind of confused over there. And IÓll start with you, perhaps. Is that all right? GALDONES:Mr. Figueiroa? FIGUEIROA:Yes. I believe if you look at the ordinance, Ordinance 889, they put it, they made the definition when they were giving approval to subdivide this entire subject of the rezoning into two phases. But as was testified during the hearing, actually, it all went at one time. And, so, they put a condition on the first phase, on the second phase, whereby you couldnÓt subdivide the second phase until it met the definition on the front part of the property, met the definition of what would be considered agricultural use. And thatÓs where it is defined that it would be deemed agriculturally appropriate if they used a minimum of 50 percent of the lot in agricultural act But, you know, they went even further than that. They said, unless, it could be even less than 50 percent if you engage in agricultural activity that provided income that would be equal to what you would have in 50 percent of the lot, if you could do it on less. ThatÓs what the ordinance says. 16 OÓTOOLE:Do you want me to respond now or -? KUBOTA:Yes. OÓTOOLE:Okay. Yeah, the ordinance did provide for incremental rezoning so that the first increment was supposed to have 50 percent agricultural use in the way that it was defined before the second increment should have been approved. WeÓre now at the point where everything was approved and it was subdivided. So I donÓt believe that that has anything to do any more with this particular permit. It was just when you could subdivide the next part of this. KUBOTA:That was when, excuse me. Mr. Chair? GALDONES:Commissioner Kubota? KUBOTA:That was when Mr., whatÓs his name, the original subdivider? OÓTOOLE:Trump, yeah, yeah. KUBOTA:Trump, Mr. Trump. That pertained to his actions when he was initially trying to subdivide this whole Kauakea Subdivision. It was a mass of land. OÓTOOLE:Right. Yes. KUBOTA:Okay. So the first increment was what you said and then and so on. But now weÓre in a different generation where those stipulations that Mr. Figueiroa alluded to do not apply? OÓTOOLE:Right. Now weÓre dealing with, yeah, that was just for subdivision. So we have subdivided and here we are. KUBOTA:Okay. The reason I ask that point is that the half-an-acre, had this project been contiguously within half-an-acre of land, it would have been -. Well, it probably would have been a lot easier to consider. But because this project exceeds half-an-acre, in total, as weÓre led to understand, the County is coming from that position. Is that correct? OÓTOOLE:Yes. KUBOTA:Thank you. GALDONES:Any further questions of Ms. OÓToole? If none, Mr. Wilson, are you going to be providing testimony? WILSON:Yes. 17 GALDONES:Could you please state your name and your resident address, and you may begin with your testimony. WILSON:My name is Tom Wilson. I live at 2106 Kaiwiki Road, Hilo, Hawaii. We are the owners, my wife and I, of another lot within this subdivision on which we have raised cattle ever since we purchased our property in 1997, and we continue to do so. We, basically, agree with the Hearings OfficerÓs conclusion that the application should be denied, and we take exception with some of the Findings of Fact and Conclusions of Law, and we have submitted our own proposed Findings of Fact and Conclusions of Law. Basically, we agree with everything -. We and the County agree on these issues, all except for one issue, and thatÓs whether or not there is a one-half acre exception. The County agrees that the land is to be used for agricultural purposes only. Four-and-a-half acres, Chris Yuen says. He said the other half-acre, a guy can have a house. I guess, maybe, a house is a non-ag purpose. Where his argument fails is that the house here is a defined farm dwelling. ThatÓs the term that was defined in the State law, it was defined in the County ordinances, itÓs defined in the Ordinance 889 that applied to this property, and itÓs in the covenants. ThatÓs the only place we part ways on the issue, as to whether or not thereÓs an exemption for half-an-acre. He agrees that everything else has to be a defined agricultural use. He takes the maximum limit, the maximum on a property that can be u say, well, thatÓs maybe a non-agricultural use. We disagree with that. Very honestly, we donÓt think itÓs right. There is no definitive or final determination in the RTÓs case. That case is up on appeal relative to the Ordinance 889. The issue relative to the importance or the impact of the private covenants on that decision is just now in the process of being litigated at the Third Circuit level and will continue to be so. And we donÓt think that a church is any different than, I donÓt want to make it, draw a comparison or equality but, the commercial junkyard which has been operating there. ItÓs not an agricultural activity. The Applicant has agreed that that doesnÓt meet the definition of an agricultural activity. ItÓs not a farm dwelling, which is a term very closely defined by all the authorities, and itÓs not just sort of a broad term. We would ask you to consider the effect of perhaps granting something like this on the contract rights or the covenant rights of all of the parties, all of the landowners within that subdivision. When you do something that basically contravenes the purpose of the private contractual covenants that relate between, to establish the relationship between the parties, we donÓt think itÓs proper or good use of the power. We also ask you to consider the impact that this proposed use might have on the Kauakea Community Association. Their efforts to try and maintain a road that has been overly worked is in horrible condition because of misuse by previous pe 18 continuing to operate there. And we would very respectfully ask that the application be denied. And thank you for your time. GALDONES:Thank you, Mr. Wilson. Commissioners, any questions of Mr. Wilson? Hearing none, Mr. Figueiroa, you have the last argument. FIGUEIROA:Yes, if I could go back to, first of all, Ms. KubotaÓs, you know, request to understand here. The differences as far as even the areas that we used, if you have available to you -. Do you have the Declaration of Rodney Nakano? IÓd like to point it out from the Declaration. The date of his Declaration was December 6, 2002. Do you have that? GALDONES:Yes. FIGUEIROA:Okay. If you notice on the No. 11 in his Declaration, No. 11 in his Declaration, point No. 11, that per his review and calculation of the square footage of the existing structure, he had 2,048 square feet instead of 1,352 square feet. So after we got this and his explanation that he was measuring to the outside of the roofline -. KUBOTA:Yes, I got that from the other meetings. FIGUEIROA:Right, so we did re-calculate to see what that would do. Okay, so we accepted that, his calculation there. And then if you look at No. 14, 14, he calculated 1,350 square feet rather than 1,244 and explained how he got that. We didnÓt take issue with that, either. We said, okay, letÓs use the 1,350 square fe And then if you go down to No. 18, where he measured the propose the, he did it the same way as the existing building; and he said that was 4,144 square feet. We accepted that. Then No. 19, he said the proposed parking and driveway is 11,109 square feet. We said, okay, weÓll accept that, your interpretation there. If you add all of that, thatÓs less than 18,000 square feet. What he did after that was to show what a half-acre would be and thatÓs what he put in No. 21, where he said, Ðarrive at an area of approximately 21,780 square feetÑ where he counted grassed areas and other areas, which he didnÓt do with the existing buildings. So we feel that we are less than a half-acre if you add both existing and the proposed together. ThatÓs where we differ. He did not say that we covered an area of 21,780 square feet. If you add all of his calculations, how he calculated, we cover 17,651 square feet, if you add the ones that I did tell you about how he measured it. So we feel that, although it is not adjoining the existing dwelling and storage, we feel that cumulatively it covers less than a half-acre of the entire lot, and his calculations prove that. So, now -. 19 OÓTOOLE:You know, can I respond to that? I know itÓs his last argument. KUBOTA:IÓm not the conducting officer. GALDONES:No. WeÓll allow Mr. Figueiroa to complete his testimony, then you will have a -. OÓTOOLE:Thank you. FIGUEIROA:Excuse me. So what happens after this? GALDONES:No, hold on. I may be corrected here because, I may ha correct my statement because you have the last argument here. So if Ms. OÓToole wants a rebuttal, then maybe the request should be made at that time; and I shall make a ruling on that. So, Mr. Figueiroa, you may continue. KUBOTA:Mr. Chair, before you go to her, I was going to ask you if it would be possible for me to request that Ms. OÓToole respond to clarify it in my mind what their response is. Because, yes, according to what heÓs saying, it do says it comes out to. GALDONES:Okay. Are you through with Mr. Figueiroa? KUBOTA:Oh, I donÓt know. HeÓs the one that was presenting it to accepting what he is saying as a, as figuratively correct. Okay? IÓm accepting that. However, I would like to, if he is done, I would like to have Ms. OÓToole react to that and explain it further why they find this discrepancy to be within half-an-acre or outside of half-an-acre because that seems to be the question. GALDONES:Okay. Give me a moment. I need to confer with my counsel. KUBOTA:Yes, please, take all the time you want. GALDONES:Okay. IÓve been advised that it would be proper for Ms. OÓToole to, for you to ask questions of Ms. OÓToole to clarify a particular subject matter that you need. KUBOTA:Thank you. Having heard that, Ms. OÓToole, want to go for it? OÓTOOLE:Okay, thank you. And I really want to do this because as I said, when we were going through the hearing, the application said weÓre applying to use one- half acre. Their first drawing showed more than one-half acre, much more than one-half acre. They were given the opportunity to re-draw it and re-present it, which they did twice, always was saying that it was half-an-acre. After the hearing is closed, everything is done except to argue before the Hearings Officer, then all of a sudden he says, ÐOh, no, 20 now weÓre under one-half acre,Ñ and it is not, I think heÓs saying that, ÐOh, Rodney only calculated the buildings, the two existing structures and the driveway. Therefore, for their project, we should only do the footprint of the building and the driveway.Ñ But, as Rodney says, he has calculated the building, parking, landscaping and arrived at basically one-half acre. Because, I mean, if you look at the plan you see how it goes. And you have the building, you have the driveway and the parking lot, thatÓs all used for the church. If he wants to just say, okay, you only take the footprint of the building, you only take the driveway and ignore the fact that youÓre really covering this much land, that I think thatÓs what heÓs saying; but that is not what RodneyÓs Declaration is saying. It is saying the church is one-half acre, the two structures are addit KUBOTA:IÓm satisfied with the explanation. I go back to, and he had the floor when I interrupted. GALDONES:Mr. Figueiroa, do you have anything further to add? FIGUEIROA:Yes. IÓd like to, again, say that we accepted the way he calculated the footprint of the buildings and we then arrived at what his interpretation was as to how much land was being covered. I donÓt think Ms. OÓTooleÓs response changes that. Now, regarding the potential for this property that was mentioned about agricultural potential, we realize that many ag lands, and weÓd like to see more agriculture being developed, but still the fact remains that it is not an easy thing to do. And in this particular case, apparently, it is a very difficult thing to do to promote agriculture over all of these lots. Their history proves that. Now talking about the impact upon the Kauakea Community Association, I think youÓve heard testimony as to whether this association really has a right to control this particular road. In fact, if you look at the Hearings OfficerÓs response, he feels that each individual property owner has the right to do maintenance and improvements on that road. She doesnÓt say that they need the permission of the Kauakea Community Association. I mean, if you look at their history, the inactivity of that association and, all of a sudden, being resurrected for this particular proceeding, that would tell you something about that. So we feel that, as I stated earlier, I think weÓve met all of the criteria. WeÓd like to, o proposed Findings and Conclusions to be accepted as the Findings and Conclusions of the Planning Commission incorporating the particular Findings and Conclusions of the Hearings Officer to which we did not object and making that Decision and Order to approve this particular request by the Kamuela Congregation of JehovahÓs Witnesses. Again, IÓd like to thank you for your time and patience because we, as I said, IÓm not an attorney, we did the best we could to present what we feel is a reasonable case. And thatÓs all we can ask, a reasonable interpretation of the ordinance, and following through with your specific right to approve a Special Permit. 21 GALDONES:Thank you very much, Mr. Figueiroa. Commissioners, any questions? Hearing none and no other questions from the Commissioners, the Chair now rules that this hearing is closed, and we shall go into decision-making. Commissioners, we are acting upon the application of Kamuela Congregation of JehovahÓs Witnesses (SPP 01-019). You have before you the Hearings OfficerÓs Recommendation. The Chair, at this time, is prepared to entertain a motion. Commissioner Fujikawa? FUJIKAWA:IÓm not ready yet. IÓm looking at a couple of things. GALDONES:Considering that this is a very difficult decision that the Commissioners are faced with, I would like to call for a 5-minute recess and then go back into decision-making. Are there any objections? RECESSEDThe Chair called a short recess at 3:30 p.m. RECONVENEDThe meeting reconvened at 3:41 p.m. GALDONES:This Hawaii County Planning Commission is back in order. Commissioners, weÓre back on the application SPP 01-019. Are the Commissioners prepared to entertain a motion or to make a motion? KUBOTA:Yes. GALDONES:Mrs. Kubota? KUBOTA:Mr. Chairman, I move that SPP 01-019 be denied based on a incorporating the Findings and Recommendations of the Hearings Officer. ThatÓs my motion. GALDONES:Is there any second to the motion? MCCALL:Second. GALDONES:It has been moved by Commissioner Kubota, seconded by Commissioner McCall, that the Hearing OfficerÓs proposed Findings of Fact and Conclusions of Law and Recommended Order recommending denial of Special Permit Application SPP No. 01-019 be accepted as a denial. KUBOTA:Mr. Chairman, I also have, as a part of that initial moti forgot to say this, but we have two sets of exceptions filed, one by the Intervenor and one by the Applicant. And having accepted the Hearing OfficerÓs Findings, I would like to recommend that we not accept these exceptions, except there are corrections that need to be made, and both of them come from the IntervenorÓs exceptions. And may I point them out at this time? 22 GALDONES:Please do. KUBOTA:Thank you. On page 2 of the IntervenorÓs exceptions, Fin Fact, the first item, paragraph No. 20, refers to the property ownership of the McCulloughÓs property and it makes a correction on the Hearing OfficerÓs page 5, I think it is. On page 5 of the Hearing OfficerÓs paragraph 20, he refers to the property, subject property, in Kauakea Subdivision owned by Artie McCullough. And my understanding is that it is owned by Mr. David McCullough; and that change ought to be reflected. Okay? Going down further on paragraph 43 of the IntervenorÓs exception, it refers to page 9 of the Hearing OfficerÓs submittal and it refers to No. 43, paragraph 43, Declaration of Covenants. And in the last sentence, the IntervenorÓs exhibit should be changed from 42 to 5. Then down further, on the same page, No. 44, again, the same correction is reflected in the exceptions submitted by the Intervenor. So that IntervenorÓs Exhibit 42 should be changed to Exhibit 5. Okay? GALDONES:Ms. Kubota, that would be on paragraph 20, paragraph 43 and paragraph 44? Was there another one -? KUBOTA:Yes. GALDONES:Or did I miss? KUBOTANo, no. Those are ones that I would like to have reflected in the final document. GALDONES:Okay. There is an amendment to the motion. Is there a MCCALL:Second. GALDONES:Okay. Motion by Commissioner Kubota and seconded by Commissioner McCall that the exceptions that were presented will However, the record will show that the subject property is owned by Mr. David McCullough and not by Mr. Artie McCullough, as appeared in paragraph 20, and that in paragraph 43, Exhibit 42 will be corrected to reflect Exhibit 5. And in paragraph 44, likewise, the change will be from Exhibit 42 to Exhibit 5 TORIGOE:Excuse me, Mr. Chair? GALDONES:Mr. Torigoe? 23 TORIGOE:Just a semantic clarification. You were talking about that the exceptions would not be considered. I think, would the meaning like that the exceptions have been considered and theyÓre being rejected, except as stated by the Commissioner? GALDONES:Oh, that is the intent of the motion. KUBOTA:Correct. Thank you, thank you. Better said. Do I need to give a reason for them? The ones that were, that are being reflected are, those are factual information, I guess, you might call it. Objective versus subjective. TORIGOE:Okay. So you now have a motion, and you have an amendme the motion, and a second to the amendment. So if you can ask if then the motion will be amended; and then go on back to the main GALDONES:Okay. Thank you. Commissioners, you have heard the amendment to the motion. Are there any objections? Maybe I should -. All those in favor of the amendment to the motion, signify by saying aye. COMMISSIONERS:Aye. GALDONES:Opposed? Likewise. Okay. So the main motion has been amended to incorporate the motion, the amendment that was made b Kubota. Okay. I hope I donÓt have to repeat all of that. I might just butcher the whole thing. But, anyway, what the motion that we are acting on, Commissioners, is that we are accepting the Findings, and the Conclusion of Law, and Recommendation of the Hearing Officer and that the exceptions that were presented as stated by our Corporation Counsel, how we are dealing with the exceptions, that is the motion that we are dealing on. Are there any other discussions? Bear with me. Commissioner Kubota? KUBOTA:I think youÓre doing a marvelous job. GALDONES:Commissioners, any further discussion on the motion? Hearing none, Alice? KAWAHA:Commissioner Kubota? KUBOTA:Aye. KAWAHA:Commissioner McCall? MCCALL:Aye. KAWAHA:Commissioner Fujikawa? FUJIKAWA:Aye. 24 KAWAHA:Commissioner Mina? MINA:Aye. KAWAHA:Commissioner Smith? SMITH:No. KAWAHA:Commissioner Thibadeau? THIBADEAU:Aye. KAWAHA:Mr. Chair? GALDONES:Aye. KAWAHA:Chair, the vote passes with six ayes and one no to deny the Permit. GALDONES:Thank you, Alice. You will be informed in writing of the action taken today. The discussion ended at 3:54 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 25