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HomeMy WebLinkAbout2007-03-02 TMIRANDA PLANNING COMMISSION COUNTY OF HAWAI€I HEARING TRANSCRIPT MARCH 2, 2007 A regularly advertised hearing on SPECIAL PERMIT NO. 05-009 (APPLICANT: MELVIN was called to order at 11:17 a.m. in the County of Hawaii, Aupuni Center W. MIRANDA) Conference Room, 101 Pauahi Street, Hilo, Hawaii, with Chairman William Graham presiding. PRESENT:William Graham ABSENT & EXCUSED: C. Kimo Alameda Takashi Domingo Andrew Iwashita Alvin Rho Rene Siracusa RodneyWatanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And 5 people from the public in attendance SPECIAL PERMIT NO. 05-009 (APPLICANT: MELVIN W. MIRANDA) Revocation of Special Permit No. 05-009 granted on August 18, 2005 which allowed the establishment of a contractors base yard on approximately one acre of land situated in the State Land Use Agricultural District. The property is located along the north (makai) side of the Hawaii Belt Highway (Highway 19) at approximately the 47.5-mile marker, Kapoaula, Hamakua, Hawaii, TMK: 4-7-7: portion of 55. GRAHAM:On our agenda for today under New Business, our next item is a Special Permit 05-009 which was granted to Melvin Miranda. And the item before us is a revocation of that Special Permit. It was a permit which allowed the establishment of a contractors base yard on approximately one acre of land in the State Land Use Agricultural District. The property is located along the north side of the Hawaii Belt Highway at approximately the 47.5-mile marker in Hamakua. And I believe this revocation is being initiated by the Planning Director. Jeff? DARROW:Thank you, Mr. Chairman. That is correct, the Planning Director is initiating a revocation of Special Permit No. 05-009 which was originally issued to Melvin W. Miranda on August 5, 2005 by the Planning Commission, it was approved by the Planning Commission. This was to allow the establishment of a contractors base yard on approximately one acre of land on an approximately 17-acre parcel. This is located along the Hawaii Belt Highway between Honokaa and Waimea on the makai side of the road. 1EXHIBIT C There were conditions placed within the approval. And what happened was there were actually two time conditions, Condition No. 2 which required final plan approval to be submitted within one year from the effective date of the permit, as well as Condition No. 8 which required that the applicant submit a description of the one-acre permit area in map and written form by metes and bounds as certified by a registered surveyor. The Planning Department did not receive any of these items up to date. Additionally there was a condition, Condition No. 8 further on states that all vehicles and equipment storage shall be limited to the specific one-acre area. While conducting site inspections, our zoning inspector had observed that there were vehicles and equipment outside of this area and issued an alleged State Land Use violation as well as an th alleged Zoning violation, this is Exhibit 2 within your packet dated October 20. Within that notice of violation, or alleged zoning violation, there were specific conditions requested of the applicant. One of them was, again, to submit this description of metes and bounds within 30 days of the letter as well as submit plan approval within 30 days of the letter. Again, the Planning Department did not receive these items. We had a response from the applicants rd representative dated November 3, this is Exhibit 3. And then lastly a follow-up letter from the Planning Department on the status of the fines, this is dated February 1, 2007, and this is identified as Exhibit 4. Within this exhibit, it states again, reiterates the corrective action that needs to be taken by the applicant; and it also identifies the current assessable fines as of st February 1, this would total $40,000. The applicants representative has submitted a request for a continuance with reasons. This has been passed out to the Commission this morning. And the applicants representative is present with us today. GRAHAM:Thank you, Jeff. Do we have questions? SIRACUSA:Yes. GRAHAM:Commissioner Siracusa. SIRACUSA:Yeah. In the first letter that we received from the applicants representative, he referred to problems with the earthquake. Does anybody remember exactly when that earthquake happened? Was it the end of October? th GRAHAM:It was October 15. th SIRACUSA:Okay. He had applied for a building permit on March 8 according to this, so that there were seven months between those two dates. Im wondering as of today have any of those things been complied with? Can you tell us that, Jeff? DARROW:Its my understanding that, as of today, final plan approval has not been submitted to the Planning Department, as well as a submitted metes and bounds description in map and written form by a surveyor. SIRACUSA:Follow-upplease? 2EXHIBIT C GRAHAM:Yes, please, go ahead. SIRACUSA: Im referring most specifically though to all the heavy equipment thats up on the high ground and whether that has been in the interim moved down to a location where it is not visible from the road. DARROW:If I could, according to the applicants representative, the equipment and vehicles have been moved out and placed into the permit area. But if I could, up to a specific point we had continued to see equipment and vehicles out of that area. But I think with the relevancy of this revocation hearing they have moved the equipment out of it. But, again, this would be, as of today this question would be probably better answered by the applicants representative. SIRACUSA:Thank you, Jeff. I do remember the last time I drove to the Kona Commissionmeetingwithyouthatwebothnoticedthatthatequipmentwashighlyvisiblefrom the road. So thats why I was asking this time, because I havent been that way for a while. Ill hold that question for the representative. GRAHAM:Thank you, Commissioner Siracusa. Any other Commissioners have questions for Jeff? WOODWARD:I have one question based on the letter that -. GRAHAM:Commissioner Woodward. WOODWARD:Oh, excuse me. I have one question based on the letter we just received from Mr. Mirandas representative today, that evidently Mr. Miranda said he did not receive the st letters dated February 1 . They were sent certified mail. Im just wondering if we have information one way or the other on that. DARROW:Its my understanding that he did receive them, but hes saying that he didnt receive them until the first week of February. WOODWARD:Well, there were two letters sent. One was sent I think in October and st then there were letters sent on February 1 that we sent certified mail. Its in the packet here. And evidently his representative is stating that he said he did not receive the one dated st February 1. Again, it was sent certified mail. Im just wondering if we have the receipt, certified receipt on that. WATANABE:Mr. Chair? GRAHAM:Commissioner Watanabe. WATANABE:I read that also. But I tend to take it as being moot, as if you will note on page1ofthebackgroundreportweapprovedthis;andIwouldnotethatIwaskindofobjecting th ; and if youre taking a year to this actual permit at that time. But we did approve it on August 5 thenyourelookingatAugustof06.Andallofthisissubsequenttothat-. 3EXHIBIT C GRAHAM:All right, thank you. Jeff, did you have something to follow up on the receipt of that certified mail? DARROW:I can check that in the file and find out if we have the receipt from that. But maybe we can have the applicants representative clarify if they did or did not receive it. stst Hes referring to two letters dated February 1. We have the one letter dated February 1. Im st trying to find out what hes speaking to as far as an additional letter dated February 1. GRAHAM:I think we also need to keep in mind that the holder of that permit is asking for a continuance today. So were not really at this moment, I think, trying to decide what action were going to take on the revocation. Commissioner Siracusa? SIRACUSA:Yes. I have a procedural question, I guess; and Im not sure if I should be asking Mr. Yuen or Mr. Torigoe. But if we grant a continuance today, does the clock keep ticking on the fines? GRAHAM:Were having a contemplative pause here for a moment. YUEN:We would agree to suspend the daily fines. GRAHAM:Thank you, Mr. Yuen. WATANABE:Mr. Chair, Mr. Chair? GRAHAM:Yes, Commissioner Watanabe. WATANABE:I also noted that theyre requesting a continuance this morning. But procedurally Im wondering if there are some things that we could make note of and request now sothatwhenitdoesonceagainappearbeforeuswehavesomeofthisinformation,andifthats procedurally okay. And I guess Im directing that question to Mr. Torigoe. GRAHAM:Good question. Mr. Torigoe? TORIGOE: Sure. If you decide to continue the matter you can do that, you know, basically conditionally asking the applicant to provide you with certain information. GRAHAM:Thank you. Could we call Mr. Miranda or his representative before us now. Thank you, sir. Could you raise your right hand while I swear you in first. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? RODRIGUES:I do. GRAHAM:Thank you. And could you begin with your name and address and carry on with what testimony youd like to give. RODRIGUES:My name is Robert S. Rodrigues. Im an attorney at law. My address is 64-411 Bucky Hill, Kamuela, Hawaii. 4EXHIBIT C GRAHAM:Thank you. Go right ahead. RODRIGUES:Okay. Im a friend/attorney for Melvin Miranda and M. W. Miranda Trucking. He is sorry he is not here, I am sorry hes not here. But in paragraph 3 of the letter that I prepared for him, it says where he is today. Hes in Kona in Dr. David Waters office. Eva Coleman whos also a friend of mine and also his companion for life has an eye that is out to here, its out of the socket. So she wears a patch. And there are three doctors, two on this island and one in Honolulu, that are trying to put a surgical package together today to get that eye back in and prevent the other eye from coming out. Believe it, I dont want to get into the medical details, but this is really serious. The other eye is popping out as well. Its a thyroid condition, believe it or not. I never heard of that. Thats where Melvin is; and thats why were asking for this continuance. Getting back to Mr. Woodwards question about the letters, I think if you, maybe my language is st alittleconvoluted.Butinparagraph1whatIsaidwasthereweretwolettersdatedFebruary1, one is a letter notifying Mr. Miranda of the violations and the second letter dated the same day is notifying him of this hearing date. Andwhat my letter says at the back end of the first sentence st is that those February 1 letters were received in the first week of February. I dont know the exact date either because I didnt get the certified mail. But they were received and they were st received like within two or three days of February 1. Theres no question about that. So were not saying that we never got them. What we are saying at the end of that same paragraph is that st we didnt get any response from my initial response to the October violations until February 1. There was a gap in time when we were wondering, you know, what is the result of this? Were th our explanations and fixes for the October 20 violation letter satisfactory or were they not? So st that was the issue in all that time. And then come February 1 or thereabouts and we find out that not only was the explanation pretty much unacceptable but sanctions were imposed two or three months earlier that we werent even aware of until we got that letter. Now maybe another letter in the interim in November, December, January exists but I havent seen one and he says st he hasnt received one. So I dont know. But February 1, that time was the initial response to my letter of November 30, 2006asking-. So Mr. Miranda if he were here he would say, yes, we got the certified letters sometime in the firstweek of February, no question about that. But he st would also tell you that the exact date of his mothers death was January 31 and we buried her th here at Homelani on June 10. So it has not been a good month to put something like this together. Now what do we have for you? There are large questions that the various Commission Members raised today, like whats taking so long essentially. If the approval was made in August of 05, why wasnt it done by August of 06? I believe that we need to go into that at the next hearing if a continuance is granted, and also about the site plan and so on. Now what you have before you which Miranda Trucking has been using all along is their version of a site plan. Its not certified by a Registered Engineer like it should be. But you can see if you look at that Exhibit A that we attached today, if you can even find that one-acre parcel on that sheet of paper it is in the upper middle of the page. It is really a small part of the 17 acres, okay,toputtheproblemintoperspective.Whenyoulookatthatmapitlookslikeawholeroad running right through the property, you know, from top to bottom of the page. That is in reality a packeddowndirtroad.Itsaneasementtopropertyintheback.Soitsnotevenclosetoscale. That thing is drawn like it looks like Mamalahoa Highway. Its not. The one-acre parcel you see 5EXHIBIT C there towards the rear, it has kind of got a heavy outline and then you see writings in there that says proposed shop, portable supply, portable office, portable „ those are little buildings that are there now, squatting there. Couple of them like the office trailer is actually an office trailer that can be towed around. Thats where the site is. Where the real trouble comes in is when you start looking at the entire site development plan where you see cattle pens, you see a horse pen, and you see a residence. I am aware of the inspectors driving out there, Mr. Miranda is aware of it, because we expected it. Its highly visible. When you come from Hilo through Honokaa and you come by the Boys Scout Camp and you see the little pond there, thats what youre going to see, youre going to see the Miranda Ridge. So whats there? On a routine basis, and I think Mr. Miranda has to give his own explanation, if you see a bulldozer or if you see some other heavy machinery like a forklift, youre not seeing Miranda Trucking equipment. Now, it may be arguable that they shouldnt be there in the first place. That doesnt belong to M. W. Miranda Trucking. What belongs to M. W.MirandaTruckingareacoupleofcattletrailers,andthreetrucks.Thatstuff,thatequipment is there to improve the property according to this site plan. He is obligated to put in that large building with the concrete foundation. So thats earthmoving equipment that belongs to others, including the contractors and sub-contractors tractors that are moving that. Maybe they shouldnt be parked there. But like I said it could be arguable that thats not M. W. Miranda Trucking. That is on-site work. Its not part of the base yard, nor is it intended to be the base yard. I notice driving by there, because I live near there, there were two cattle trailers, large cattle trailers, up on top of the hill. It appears to me on that day that that could be considered a violation. We can argue that another day. But on the face of it, the bonafides are that those two cattle trailers because of the mud and the way they were under construction down below in that one-acre area, Miranda made a decision not to take those two large cattle trailers down there cause it might be stuck down there. They dont belong to Miranda Trucking, they belong to other ranchers as we said in our original application; and they were hauling cattle to and from market; but perhaps they should not have been put there. So I hope that answers some of your concerns. I agree with the Planning Commission and counsel for the Planning Commission that perhaps some deadline should be set and some conditions should be set if there is a continuance granted. One self-imposed one, maybe I can spare the Planning Commission of more time, is if youve nd noticed I stated in there, April 2 for the registered surveyors report coming in -. The site plan Ive seen it, but it is not a valid site plan without the registered surveyors part of it. But if you will also notice on our Exhibit A which is the preliminary site plan, the working diagram, the second page of that, you can see where theyve already covered the nine points that are raised in the final site approval application. There are nine little things at the bottom. One of them includes a tax clearance, which is attached hereto as Exhibit B. So you can see that theyre paying their way through. And you can see on the site plan, the notes on the second page, if youre with me, thats Exhibit A, the second page, it says ‚Notes to site plan.ƒ Thats straight off the final site plan approval. Im not an expert so I cant tell you if all the specifications in there meettheCountyplans,ortheBuildingCode,oranythinglikethat.Illleavethattotheexperts. But on face value it looks like theyre all within the one-acre parcel and they probably will meet therequirements.Andthatswhythatsthere.Okay? 6EXHIBIT C Now as to the photographs on Exhibit C, and then Ill wrap up, getting close to lunch time, Photographs C-1, C-2, C-3 and C-4, what they tried to do yesterday, and this is yesterday, Melvin Miranda was out there with his daughter taking these pictures, they tried to replicate a photograph from the same angle as the Planning Department inspector from the Boys Scout Camp. And the way you tell that is by that pond in C-3. So if you do have a vehicle on top of that ridge line it is clearly noticed from as far away as from the Boys Scout Camp. You can see it. The only arguable thing, Ill be repeating myself, is that whether its actually an M. W. Miranda vehicle or if its a vehicle from a contractor thats doing work in there to make all these things happen; and it could go either way depending on the day youre looking at it and the weather conditions. C-5, C-6 and C-7, one of the Commissioners had expressed concern that why arent things done. Theres a good picture of why arent things done, because theyre on their way. The big building is on the way. One of the special conditions which was not anticipated but welcomed was that that300-footby100-footmaintenanceshedhadtohaveaconcretepad.Theearthquake,the question was when was the earthquake? We know when the earthquake was. That was October thth 15 when that pad was just about to be laid. The citation came on October 20. The wooden foundation that you see there that were in there, they were all cracked during the earthquake as of rd my letter of November 3. But theyre well along now because this is a recent picture as of yesterday. So theyve recovered from the earthquake. On C-7, you see that little yellow building there? When you go to the site plan and it says temporary storage or temporary office, thats the kind of building they have along the edge of the one acre. Okay? So what Im trying to do today is let you know that Miranda would have liked to be here today, kind of different priorities because of getting three doctors on the telephone and a conference at the same time in Kona, so he had to make some choices. And, quite frankly, I advised him that I would show up in his stead and he go take care of Eva and that we would ask the Council for their understanding; and in return for that understanding we would try to take care of any conditions that the, not the Council but the Commission may have. Thank you very much for your time. GRAHAM:Thank you, Mr. Rodrigues. Let me ask Mr. Torigoe a question here first. Generallywhentheapplicantscomeinandaskforcontinuanceswedontreallydealwiththe subject matter, the application, until the continued hearing. But we did have a request from the Planning Commissioners that maybe we could address some of what we might expect from the applicant or from the owner of the special permit for the next hearing. So, Mr. Torigoe, is there any procedural sense that you could give us as to what we should do now before, I presume were going to have a motion for a continuance, what is appropriate to do before that motion or -? You understand my concern? TORIGOE:Thank you, Mr. Chairman. Well, basically, I think its, you know, this is a little unusual because it is a revocation request from the Director. And so if the Commission feels like it needs to gather some more information about the status of things or what can be expected to be done or what, you know, more information that theyd like to have prior to the next hearing if this is continued, then that certainly would be appropriate to do. And certainly if the applicants representative is agreeable to any of that, then that can be done. GRAHAM:Okay, thank you. So I guess at this point, Mr. Rodrigues, the Commission will be taking a vote on the continuance at some time shortly. But if for the moment they can ask you what they might like to have you provide at the time when we continue -. 7EXHIBIT C RODRIGUES:Sure. GRAHAM:Okay. SIRACUSA:Mr. Chair? GRAHAM:Commissioner Siracusa? SIRACUSA:Yes. Mr. Rodrigues, you addressed the question about the delays caused th by the earthquake and since then. But Mr. Miranda got his building permit on March 8 of 2006; and so between then and the earthquake he had seven months to get the pad built and put th up that building and do all the rest of this stuff. And, of course, between that March 8 when he got the building permit and August when we had granted him the special permit he had a lot of time then, too. And can you explain to us or do you want us to wait for Mr. Miranda to come before us to explain what were those delays and were they above and beyond his ability to, you know, with the acts of God or whatever, or is it just that he was being flakey? RODRIGUES:Ill take that one on, Mr. Miranda may supplement that if there is a continuance. But my recollection as his counsel and observing the situation, that delay was caused by two factors. That prefab, that building that hes putting up with the concrete pad I think is 300 feet by 100 feet, is a special order prefab building from the mainland. So theres two components to that. The factory on the mainland has to make it on order. They dont have a warehouse full of those things; and that has to be shipped here. The other component is cash payment; and my recollection is the cash payment on that thing was $100,000 cash. And Mr. Miranda operates in the old style so he raised the money, so that caused the delay. I believe thatthebuildingitselfcameinintheearlyfall,Icanttellyouexactlywhatdate.Butfrom March of 06 when he got the permit until that time or from the time that the special permit was granted in August of 05 -- I cant give you all the details but I know there was a lot of -- in fact, the contractor who happens to be Monty Miranda, his son who is a licensed general contractor, I know that they both went to the mainland and visited three factories to make their decision on which type of building to buy and which would be consistent with a concrete pad and all that. So there was travel. To make a long story short, Ms. Siracusa, theres a trip to the mainland, there was cash money, there was shipping to Hawaii; and what you see in our exhibit is on the ground and coming up as we speak. But it did take more time than they thought. I hope I answered your question. Its not precise. Mr. Miranda could be more pr²cise than I can be. GRAHAM:Thanks, Mr. Rodrigues. Mr.Yuen, my sense was what was the difficulty here was coming up with the site plan and the final plan approval and all that. It really hadnt had anything to do with building this particular building. It wasnt on the timeline. Am I correct in that assumption? YUEN:Well, yes. We didnt make him put up a building in the conditions of approval. So, yes, youre correct. And let me, while youre here, and were fine with having a continuance, we understand the medical problems. But when we had the hearing on the special permit which the Department opposed, you said, representing the applicant, that you were going to move all the equipment to this low area on the property, one acre low area where it was not going to be visible. The equipment is an eyesore up on the ridge there. So the special permit 8EXHIBIT C was granted in August 2005 and the equipment just sits there for months and months after that. Now Mr. Miranda has an equipment moving business. We want him to move the equipment out of site. We also do not want to have a debate over thats not my bulldozer, thats somebody elses bulldozer. You know, it takes time to, when we see a bulldozer up there and we have a special permit that says youre supposed to have all the equipment stored in a one acre area that is supposed to be set out by metes and bounds in this low area of the property, my inspector, you know, were going to keep on this. And hes going to issue a citation if you have equipment; and we dont want to have this thing come back from Mr. Miranda, oh, that wasnt one of my bulldozers, that was somebody elses bulldozer. He can move the stuff to the low point of the property. Im a little bit concerned about what I hear though, one more thing I hear. Okay? Because he had a permit that was limited to six semi-trailers, like he has this, he presented a small hauling operation that was in business to help the agricultural interests in the area. Now he has, and there isaspecificconditionaboutnotbeingasubcontractor,likeageneralcontractorsbaseyard where lots of other people store their equipment on his property. Okay? Now I hear a 30,000 square foot building? What is that for? Thats almost an acre under roof. Thats a huge building. Whats that for? RODRIGUES:I could be mistaken as to the size, I know its a large building. Let me look at the notes, because thats where it is. Its in Exhibit A, its on the notes of the size of that building. I will address each of your concerns. Lets see, proposed, Im sorry 100 by 90. I was wrong. I kept saying 300 by 100; 100 by 90, thats what hes talking about. So its a smaller shop. But its still large. When you see it on the ground, it looks huge to me, when I looked at the slab. All right. Did you have anything more before I respond to your question? YUEN:No. RODRIGUES:Okay. My primary job is a defense attorney in criminal cases. This is a good one for me. But I can say this, as a property owner Mr. Miranda has got to be responsible for the whole property, not just one acre but all of it. And it was clear that in August €05 hearing it was a close call as to whether he would get a special permit; and I think that the Commission did not exactly bend over backwards. But they gave him the benefit of the doubt to go ahead based on community input and a lot of other things. I think also that there can be little doubt that there have been violations of the good faith that was entrusted to the project. Some have been caught by community members, some of them noticed by government officials. Theyre done. I have to leave the explanation to Mr. Miranda. But I will say this, Im intimately familiar with that property. Some of the business decisions that went into asking for that permit, the Commission has the background, the Parker Ranch thing, the West Hawaii thing, the no where else to go thing. That property has proven to be extremely difficult to work in. You heard the testimony from Mr. Tulang about the geographical conditions there, the geological conditions there. Its no wonder that nobody wants it because its really tough. So on behalf of my client I would say everything is going to take three times as long, three times as much, that does not necessarily excuse parking outside the one acre. Park it somewhere else. Perhaps Mr. Miranda understands that, I dont know; and I cant speak for him. But he did want to be here today, he did want to answer that question in more detail. It is a valid question. No one can challenge that, Mr. Yuen. 9EXHIBIT C GRAHAM:Thank you, sir. Do we have any further questions for Mr. Rodrigues from the Commission? WATANABE:I -. GRAHAM:Commissioner Watanabe? WATANABE:Im sorry, Im not implying that Im likely to grant an extension on that, although, you know, I certainly would be in favor of a continuance. But before we get to that point, I do want to have some other material here provided to us. And I was looking for the spot in the material where it indicated what the cost, what was spent for that prefab building. It was my recollection that was like $40,000 or something to that effect. And like I said Im not implying that I would vote in favor of any extension. But I think you should provide proof of how much has been spent, what actually is there, you know, how much progress actually has beenmade.Whatyouprovidedthismorninghelpstosomedegree;anditsfurthercomplicated now because now youre telling me his son is a contractor. So, you know -. But Im sure with the building you could provide an invoice showing exactly how much he paid for that prefab building and some of the other things such as, you know, the pouring of the concrete or whatever. But I think you all should provide that at the next meeting. And, also, I was wondering if it would be prudent if, you know, from the Countys standpoint if we could have staff go out there and document whats actually on the ground and, you know, whether oil changes have been occurring without the concrete slab. Because apparently the concrete slab was only put in in, what, October, November? So, you know, you had a period of over one year where he had to be changing oil on site. And so what happens, are we just dumping the oil into the ground? You know, I think thats something that maybe Im hoping the Planning Director would agree. You know, do you think we could send like one of your inspectors out there and document some of that? That might help us in, you know, saying yea or nay when we finally do address this. GRAHAM:Mr. Yuen? YUEN:Well, you know, I dont want to, Id rather the Commission not give us a direction on that, just because my inspectors really have a lot to do. And there are certain things that we clearly want the applicant to do that are visible, that we noticed when we drove by the site. So we would only ask that the applicant give consent to the inspector to come out if we do send him out. I would rather not the Commission ask us to have a specific site inspection before the next meeting. GRAHAM:Okay. RODRIGUES:May I follow-up? GRAHAM:Go ahead. RODRIGUES:Mr. Watanabe, why not we do it this way? Why doesnt M. W. Miranda volunteer, and I will do so on his behalf, to give you a written report as to the method in which waste oil or any other contaminants have been disposed of since the issuance of the special 10EXHIBIT C permit? I think thats a fair question. And I think that can get you an answer that can be investigated if the Commission or anybody wants to double check it. But at least if the Planning Department doesnt have the personnel at least the landowner can send in something saying this is how I do my oil, this is how I do my, you know, flame retardants and so on. We can do that for you. Im sorry -? WATANABE:Follow-up? GRAHAM:Commissioner Watanabe, yeah, Id just also like to indicate that we are going to break in five minutes, and Commissioner Rho had a question to ask, and I know Commissioner Domingo is going to ask a question. So -. WATANABE:Okay. I would generally be in favor of that except that he also said that he parked the vehicles in the lower area; and we all agree that hasnt occurred. So I would appreciateitifyousomehowcouldnotifythePlanningDepartmentifheprovidesconsentforthe inspector to go on site to do an inspection, assuming that inspector has time to do that. RODRIGUES:The other question about the cost of the building, again, Im going by memory. In my discussions with Mr. Miranda, I dont have any documentation as to the cost of the building. I do have some privacy concerns about that. As youve probably guessed, Im pretty clear with my clients what I will do and what I will not do with them. And so thats why I can be here today and say this is what Im going to do, this is what Im not going to do. But on the question of disclosure of the cost of a building, at a public hearing, Im not so sure how appropriate that is in privacy. Now private disclosure, a private disclosure to Corp. Counsel or to the Director to satisfy the Commissioners, thats a different matter. But in a public forum, Im not sure. I have to check that one out. GRAHAM:Okay. Commissioner Rho? RHO:Just to follow-up on what you just said, I wouldnt really be interested in the cost of the building, but I would be interested in some documentation if you can provide that on when that building was actually ordered. I think, you know, you mentioned that it took time, etc., etc. but maybe some documentation about what that entailed, that difficulty. But my real th question was whether or not you have a copy of the October 20 letter from the Director. RODRIGUES:Yes, I dont know if I have it right with me, but we did get a copy of it rd because I responded to it on November 3. RHO:Right. So it seems to me that none of the conditions were followed; and then on page 4, I guess, it reads ‚Pursuant to Sectionof the County Code you are hereby ordered to complete the following corrective actions at your own expense.ƒ And then it lists ‚Pay nd acivil fine of $500.00 no later than November 22.ƒ Do you know whether or not that was paid? RODRIGUES:Butwhenwasthatletterthatyourereadingdated? th RHO:October20. 11EXHIBIT C rd RODRIGUES:Okay, and then there was a recomment to that of mine on November 3. RHO:Right. st RODRIGUES:There was no response to that until February 1 that I know of. Thats what we were waiting for. RHO:Well, I understand that. I understand that. But the letter -. RODRIGUES:Okay. So as far as the fine is concerned -. RHO:Right, but the letter specifically says ‚at your own expense.ƒ And then nd No. 2 it says ‚Pay a civil fine of $500.00 no later than November 22.ƒ My question is just whether or not that was paid. RODRIGUES:The answer is it was not paid. But the further answer is we expected an answer to my letter -. RHO:Right, I totally understand that. RODRIGUES:Saying you pay it, you know, everything stands. But that never happened. RHO:Right. And 1(3) says ‚If all equipment is not removed to the one-acre area specified in the Special Permit by November 3, 2006, pay a civil fine of $500 per day thereafter, pursuant to.ƒ And so thats how they come up with this, I think, the amount is like $40,000. rd Right? And your response is that, with your letter of November 3, that you didnt get a response tothat until early February, the first week of February. RODRIGUES:Yes. And -. RHO:And I can understand all of that. I guess my real concern is that I dont personally and,you know, I can check this and maybe the Director can address this, but I dont thth personally think that all or this began on October 20. I dont think that on October 20 somebody goes out there, sees that and then decides to write this letter; but I could be wrong. And so therefore, you know, some of this stuff needs to be taken care of and could easily be remedied. For example, when you talk about other businesses having equipment on that site, No. 4 or Condition No. 4 the way I read this thing says, No. 4, ‚There shall be no vehicle storage allowed for other businesses on the property.ƒ How clear can it be? How more clear can it be? th And I understand that you say that, yes, there were some violations between October 20 and today or at the next hearing -. Because I think were going to continue this, I really would like to seesomegoodfaithprogressmadeonsomeoftheseconditions.Itsassimpleasthat. GRAHAM:Thankyou,CommissionerRho.BeforeIcallonCommissionerDomingo, I just want to say were ready to break for lunch so if we want to take a motion now on continuanceandbefinished,wecandothat;orwecancomebackafterlunchandcontinuewhat were doing. Commissioner Domingo. 12EXHIBIT C DOMINGO:Mr. Rodrigues, you know, your client immediately after the approval of the permit could have immediately responded to some of the conditions of approval. Why did he not do so? RODRIGUES:The answer is, Ill give you a direct answer, Mr. Domingo, he did for a time; and then I noticed the same thing. Okay? Now maybe thats disclosing confidences of my client but weve had many discussions about this. And it would be more proper for him to rd explain the why but not the what, okay? The what was when I wrote that letter on November 3 th and when the violations occurred prior to October 20; and as Commissioner Rho stated there may have been violations before then. Okay? They were each corrected in serial fashion when they happened, with or without government prompting. Now why was that? There are many reasons, some of which may, and some of which may not, be acceptable to the Commission. Thats for the Commission to hear, thats for my client to state. But Im following the Commissions reasoning on this and Im sure that my client will get a full appreciation of what went on here today. Im not sure if I answered your questions specifically enough. DOMINGO:Thats okay, I understand what youre trying to tell me. GRAHAM:Go head, Mr. Domingo, finish up, please. DOMINGO:Id just like to ask the Department if they at any time had received any responses to the conditions of approval with regards to submitting plans and indicating other measures? GRAHAM:Jeff? DARROW:Unfortunately we did not, and that was the reason for the violation notices going out. We did not receive submittal for plan approval within the one year requested as well as the site plan requested. DOMINGO:Nowinyourrequestforacontinuance,areyoudisputingthefine,thecivil fine that has been levied upon your client? Is he disputing this? RODRIGUES:I would advise my client to dispute them. Ill tell you why, the short answer,okay?Ithinkthattheproperprocedureshouldhavebeenthatwereceivesomekindof th communication as to the October 20 violations, which we did; and it stated in there what the sanctions could be if and when corrections were not taken. There was a response to that rd prepared by me on November 3, okay? To me things went into never never land when we didnt get a response from the County. So -. DOMINGO:WhatwasyourresponsetothePlanningDepartment? RODRIGUES:Explanationforthedelay,Idonthavetheletterinfrontofme.Butmy recollection is explanation for the delay, and removal of things from the high ground that was visible.Ibelievethatsessentiallywhatitwas. DOMINGO:Onlythat? 13EXHIBIT C RODRIGUES:And the earthquake damage which was causing a delay in things moving forward. Ancillary to that though -. So did I answer your question before I say anything else? DOMINGO:Well, you answered the question. But, you know, I have some other doubts in my mind, thats why -. Go ahead, go ahead. RODRIGUES:Okay. GRAHAM:Mr. Domingo, would you care to continue this after lunch or could we do a motion to continue the hearing till the next Commission -? I dont know how the Commissioners feel. WATANABE:I -. GRAHAM:CommissionerWatanabe? WATANABE:Idlike,letstestthisout.Idliketomovethatwecontinuethistothe next Hilo meeting at which point, you know, I think all of the Commissioners would have a better opportunity to address whatever questions they have; and hopefully the applicant himself will be here. GRAHAM:Okay. Do I have a second? RHO:Second. GRAHAM:Seconded by Commissioner Rho. Commissioner Watanabe, I think we previously indicated that the Planning Director was willing to forego any further accumulation of fines during this period. Is that understood with your motion? WATANABE:Right. GRAHAM:So thats on the record. WATANABE:I recall that also, recollect that; and Im in favor of that also. GRAHAM:Okay, fine. We have a motion and a second. SIRACUSA:Discussion. GRAHAM:Commissioner Siracusa? SIRACUSA:Yeah. Im wondering what happens with the cease and desist during this period between now and the next time it comes, this request for continuance comes before us. Is that cease and desist still in effect? GRAHAM:Right. Mr. Yuen? YUEN:What is still in effect? 14EXHIBIT C SIRACUSA:The cease and desist, that in your letter you told him that he had to cease and desist from using the area, the land as a base yard and all of that stuff because he was in violation. YUEN:Right. Well, yes, he is not supposed to be storing equipment up at the top of the hill there, outside. SIRACUSA:Right. So Im saying that that is still in effect? YUEN:But that is still in effect, yes. SIRACUSA:I just wanted to clarify that. RODRIGUES:Canwestipulatetothat?Cantheapplicantstipulatetothataswell? Mr. Torigoe, can you -? TORIGOE:Youre agreeing basically that your client will not be using the property for storage in a violation of the terms of the special permit? RODRIGUES:What we will stipulate to is exactly what Mr. Yuen said. There is a cease and desist order out now for a violation of the original condition of the special permit. We recognize that cease and desist order; and we will stipulate to following it, or face whatever consequences there may be. So there should be no question that the cease and desist order, Ms. Siracusa, is in effect. It is in effect; and I will so advise my client, period. GRAHAM:Thank you, Mr. Rodrigues. Mr. Domingo, you had further questions? DOMINGO:Yes. GRAHAM:This is on the motion for continuance. Yes? DOMINGO:I know. Between now and then I just would like to have the applicant comply with all of the conditions as stipulated in the granting of the permit. And I think because of the noncompliance with that, thats why were here today considering the continuance. And I want to see all of that being complied with in whatever way possible, unless as you indicated there were some other factors that had prevented you folks from doing it. GRAHAM:Okay, thank you. Any other discussion on the motion for a continuance to our next Hilo meeting? Jeff? DARROW:Thank you, Mr. Chairman. The motion before us is to continue this matter to the next Hilo meeting; and that the fines would be put on hold for the violation notice. With that, Commissioner Watanabe? WATANABE:Aye. DARROW:Commissioner Rho? 15EXHIBIT C RHO:Aye. DARROW:Commissioner Domingo? DOMINGO:Aye. DARROW:Commissioner Siracusa? SIRACUSA:Aye. DARROW:Commissioner Woodward? WOODWARD:Aye. DARROW:And Mr. Chairman? GRAHAM:Aye. DARROW:The motion passes six to zero. GRAHAM:All right, thank you. RODRIGUES:May I have a request on behalf of the applicant? GRAHAM:Mr. Rodrigues, go ahead. RODRIGUES:Okay. Ill make it real fast. If you have any official/unofficial recommendations or suggestions that you want done before the next Hilo hearing, I would welcome them. The subjects that came up just in summary, the oil spill question or the disposal of contaminants, thats kind of high on my list, may not be required. The documents on ordering the building and so on, that timeline. I think all of that perhaps is worthwhile. I have a question as to the actual price, but a private disclosure to the County government or to counsel is fine. So those are the things that we talked about. If you want them maybe the Director could send me a letter saying, okay, how about this; and well do our best to comply with that request, whether or not its required by the process. Thank you very much. GRAHAM:Thank you, Mr. Rodrigues. I also want to note we dont have anyone signed up for public testimony on this item. Thank you. The discussion ended at 12:11 p.m. Respectfully submitted, Sharon M. Nomura, East Hawai€i Secretary 16EXHIBIT C