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HomeMy WebLinkAbout2011-03-03 ExhibitA WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT MARCH 3, 2011 WILLIAM ELSTON AND DAWN A regularly advertised hearing on the application of TILMAN (SPP 10-112) was called to order at 9:04 a.m. in the County of Hawai‘i, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with Chairman Zendo Kern presiding. COMMISSIONERS PRESENT: Zendo Kern, Dean Au, Takashi Domingo, Wallace Ishibashi, and Stephen Ono STAFF PRESENT: Julie Mecklenburg (Deputy Corporation Counsel), BJ Leithead Todd (Planning Director), Maija Cottle (Staff Planner), and Jeff Darrow (Staff Planner). And no one from the public in attendance. ABSENT AND EXCUSED: Rell Woodward APPLICANT: WILLIAM ELSTON AND DAWN TILMAN (SPP 10-112) Application for a Special Permit to allow the establishment of a five-bedroom bed and breakfast operation within an existing dwelling situated on 4 acres of land within the State Land Use th Agricultural District. The property is located on the west (mauka) side of 36Avenue, between Ilima Street and Aulii Street, approximately 1,000 feet north of the intersection of Ilima Street th and 36 Avenue, Orchidland Estates Subdivision, Kea‘au, Puna, Hawai‘i, TMK: 1-6-008:306 and 307. KERN: Item No. 1, Applicant William Elston and Dawn Tilman (SPP 10-112), application for a Special Permit to allow the establishment of a five-bedroom bed and breakfast operation within an existing dwelling in Orchidland Subdivision. With that, we’ll have the staff presentation. Maija? COTTLE: Thank you, Mr. Chairman. Good morning everyone. COMMISSIONERS: Good morning. COTTLE: The first application is located in the Puna district of the island; and the property is located in the Orchidland Subdivision. You can see the property outlined in black. And it’s th located between Aulii Street and Ilima Street, and it’s just mauka of 36Avenue. You can see the Keaau-Pahoa Road running in a north-south direction in the middle of the slide, and then Orchildand Drive comes off of the top of the slide here. The subject property is currently zoned Agricultural 1-acre, as well as all of the properties around it. You can see that in the light green. The General Plan designation for the property is Rural and,again, all of the properties surrounding it are the same. That’s shown in kind of the brown color. This is an aerial photo of the area. You see the existing dwelling on the property. And then the closest dwellings are located just to the north and to the south here. And there is very heavy vegetation surrounding this house so it’s not easily visible fromeither of these two houses. 1 EXHIBIT A The applicants are requesting a special permit to establish a five-bedroom bed and breakfast operation within the existing dwelling. The dwelling has currently four bedrooms; but the applicant would like the ability to expand if his business does well, so that he can have a five- bedroom bed and breakfast establishment without having to come in and amend the permit if it’s granted. th This is a site plan showing the house. You can see 36 Avenue over on the right side of the th slide. He has a driveway coming off of 36 Avenue up to the house. And the property actually consists of two lots, Lots 306 and 307. The driveway is just on Lot 306. So we have included a condition requesting that they consolidate those two lots and resubdivide so that the operation is on one lot. And the Planning Department is recommending approval of the special permit. Are there any questions? KERN: Any questions for staff? Commissioner Domingo? DOMINGO: Thank you, Mr. Chairman. With the anticipation depending how business does come, come about, another unit would be built to provide for five rooms. Does the conditions as set forth in here address that additional bed and breakfast? I don’t know if it will have an impact on the area or the use, the additional use of that bed and breakfast. COTTLE: Are you asking how -? DOMINGTO: Does the conditions as suggested in here, is it considering the additional bed and breakfast unit should he decide to build it? COTTLE: Yes. The permit is requesting the ability to expand either the current dwelling or to construct a two-bedroom unit on the property nearby so that he can expand up to the five- bedroom establishment. DOMINGO: Very good. Thank you. COTTLE: You’re welcome. KERN: Commissioner Ono? ONO: Yes. I’m just curious. I’m not familiar with the idea of a bed and breakfast program. What’s the intent of the bed and breakfast concept? COTTLE: Well, it allows guests to stay at your home. The applicant would reside on the property in one of the bedrooms, and he operates the bed and breakfast establishment. And you basically, you know, rent the rooms out to guests that come usually on a short-term basis and provide them a limited breakfast according to Department of Health standards, which is very limited. ONO: So does that change the idea that,of a residential district to a commercial property? COTTLE: Well, the Planning Department considers it a home occupation. It would be like if you were running any other type of business out of your home, like an accounting office. It’s the same type of thing. ONO: So it is a commercial property. COTTLE: It’s a more commercial use than if it were strictly residential. 2 EXHIBIT A ONO: Thank you. ISHIBASHI: Mr. Chairman? KERN: Commissioner Ishibashi. ISHIBASHI: But the letter from Dereck Shimizu, that’s the Vice President of the 0rchidland Community Association, he makes reference to the traffic, and guests, and homeowners liable for their,cause they’d be driving on this unpaved road. What are our parameters when it comes to implementing such, you know, conditions. I don’t know, how do we work that out? COTTLE: Well, the Planning Department usually leaves the establishment of bylaws and the enforcement of bylaws up to each association. We don’t usually include, you know, third-party conditions into our conditions because it becomes difficult to enforce. In this particular situation it is a bed and breakfast establishment. The amount of traffic would be equivalent to like if a large family were living there. So we don’t expect, you know, a significant increase in traffic. We also did provide the letter to the applicant so he is aware of the Association’s concerns, and hopefully he will, knowing their concerns, inform his guests. ISHIBASHI: Thank you. KERN: Madam Director? LEITHEAD TODD: Yeah, I do have a couple of questions, perhaps for the applicant. I’d like to know if he is current with his payments to the Association for road maintenance fees. KERN: On that matter, could I please have the applicant come forward and have a seat. ELSTON: William Elston, the applicant. KERN: Very good. Before you begin, would you please raise your right hand. I’m going to swear you in. Do you affirm to tell the truth today before the Windward Planning Commission? ELSON: Yes. KERN: Very good. And before you begin, state your name and address; and then you can answer the question. ELSTON: William Elston. NOMURA: Microphone, please. KERN: Use your microphone, please. NOMURA: Thank you. th ELSTON: William Elston,I live at 16-1966, 36 Avenue. The mailing address is Box 5758, Keaau, 96749. The question was am I current. The answer to that is, no, I haven’t paid this year yet; and this is February. I think it’s due in a month or so. LEITHEAD TODD: So you paid last year’s assessment? 3 EXHIBIT A ELSTON: Yes, also spent $1500 of my own money repairing the road. KERN: Does that answer the question? Any other? LEITHEAD TODD: Yes, it does. Cause I did have some concern after, you know, looking at this. Because I believe when we approved a commercial kitchen up in Volcano there was some type of a condition that they had to contribute to road maintenance up there. This was the, was a subdivision and they had a commercial kitchen. I remember it was an issue because there were concerns about additional traffic and whether they were going to hold special events. I don’t know that there’s significant additional traffic from a bed and breakfast versus a farm operation with heavier trucks, versus a family with many children. I have children.I’ve got four vehicles at my house and frequently five, or six, if you add unexpected overnight strays. So I don’t think it’s the level of traffic. But I do think that if you are going to have a commercial type of operation that you should remain current with the association fees. Because I would hate being in a situation where we approve a special permit and they’re deriving benefit from that special permit because they are charging, you know, fees for people to stay there and then they’re not contributing to the community association. So I would not be adverse to an additional condition that as a condition of the special permit that they have to stay current with the road maintenance fees. KERN: Corporation Counsel? ELSTON: Would you add a condition that the homeowners association has to keep the roads currently repaired? KERN: We can get to that in a minute. Corporation Counsel? MECKLENBURG: Yeah, I just wanted to address Commissioner Ishibashi’s question as well. The conditions that were proposed by the Association do speak to kind of the enforcement of the bylaws and an indemnification of the Association. For this Commission we seek, the conditions that we place on it should further a legitimate public purpose; and enforcement of a private association’s bylaws and such would not be considered a public purpose as such. KERN: Quick question, though. Keeping with what Madam Director said a minute ago with putting in that the applicants stay current on association dues and fees, that would be kosher? MECKLENBURG: I think what the Director is looking at is maintenance of roads and seeking to make sure that the roads are maintained, which is a public purpose, yeah, pertains to public welfare, so that may be acceptable. KERN: Very good, thank you. Okay, now that we’re semi out of order, if you want to give your presentation or talk about anything else you want to add to the application, now is your time. ELSTON: Well, I have nothing to add. Everything that I proposed was in my application. The bed and breakfast would be starting out with three rooms to rent. It’s a four-bedroom house. The house is large enough to expand it into at least a five-bedroom house. However, to go to a six-bedroom house, which would be for five bed and breakfast rooms, I would have to do a Health Department, get a new septic facility to expand beyond that, which would require me to get permits. Or if I were to build another facility on the land I’d have to get building permits for that too. I don’t plan to do that any time soon cause I don’t even know how this thing is going to 4 EXHIBIT A work out. My wife and I are both on fixed, we’re on fixed income. And being in this economic environment, we’re trying to figure out how to make some money to improve our income; and this is the first way that’s available. The building is, the whole structure as you can see, you saw, is a pretty large house. It’s all under roof, including the garage, 6,000 square feet. And we have all these empty rooms, our children are gone, so we decided we would do this. Like I said, initially we were going to have three rooms; and if it works out we may expand beyond that. KERN: Okay, very good. Before we move forward, did you get a chance to look at the recommendation and the conditions? ELSTON: Yes. I did read the recommendation and conditions. And I have no objections to any of the conditions that were put forth in the mailing that I got with the Director’s recommendation. I do plan to consolidate and, well, that was one of the plans I had before, consolidate and resubdivide to take care of the setback problem on the structure. And I will furnish bottled water as required. And I will comply with all laws of the State and County of Hawai‘i. And I shall require that if I sell the property that my successors will comply with, as a condition of the sale, will comply with all the County requirements stated here. KERN: Okay, very good. Are there any questions from fellow Commissioners for the applicant? Seeing none, you may have a seat. Thank you. Anybody want to entertain a motion? DOMINGO: Mr. Chairman? KERN: Commissioner Domingo. DOMINGO: Regarding the application byWilliam Elston and Dawn Tillman, Special Permit No. 10-112, I move for its approval with the conditions. KERN: Okay, very good. Is there a second? ISHIBASHI: Second. KERN: Okay, it has been moved and seconded. Just for my housekeeping, there is no one signed up from the public to testify. Thank you. Okay, any discussion? All, I’d like to throw out there that I think we should add the condition that the applicants stay current on their road fees, maintenance fees. Is that possible to add it? You want to make that comment there? DOMINGO: Yes. Mr. Chairman, in addition to the recommendation I’d just like to add another item which would so state that the applicant will be current on the fees as assessed by the Association. KERN: Corporation Counsel? MECKLENBURG: Could we take a short recess? KERN: Sure. We’ll move into a short recess. We’ve a motion opened to where it stands. Is that kosher? DOMINGO: Right. KERN: Okay, recess. 5 EXHIBIT A RECESSED – The Chair called a short recess at 9:21 a.m. __________ RECONVENED – The meeting reconvened at 9:35 a.m. rd KERN: I’ll call the March 3 Windward Planning Commission back to order. Madam Director? LEITHEAD TODD: We met with staff and they basically brought up the issue that there have been prior bed and breakfasts in this area where we did not put this condition on. And so this would be treating him different than the others. And the Association does have the ability to go after him by putting on a lien on his property if he doesn’t pay the fee. And then the broader philosophical issues of whether, you know, we should be addressing the placement of B&Bs in areas where there are unpaved roads is something that the Department will be addressing later. But I’m going to suggest that to be equal with the other ones that condition that I had suggested earlier should not go on, just because all the other B&B permits didn’t have the condition, and the fact that the Association does have the authority to put a lien on his property if he doesn’t pay. So sorry to put you through this exercise. DOMINGO: Mr. Chairman? KERN: Commissioner Domingo. DOMINGO: Yeah. But in deference to the applicant, hasn’t it been such that throughout time additional homes have been built, additional bed and breakfasts have been, are there and being considered, therefore, does it not warrant this condition to be inserted in the condition of approval? You know, I’m just thinking out loudly. And another issue, the Point No. 3, the owners from the, the letter from the Association with regards to the owners and their patrons must understand and acknowledge that should any of their patrons sustain damage to their vehicle, the Association and its members shall not be held liable for damages incurred -- and that’s, you know, the Association’s roads. So, and they went on to say that, “If these conditions are not included in the permit then we have to oppose the issuance of this special permit.” ELSTON: May I be heard? KERN: Just give us one moment. You may have a seat. Any comments? DOMINGO: Yeah, just a thought that I have. And I, you know, when you think about the responsibility or some action that may be taken against the applicant, or the Commission, or the County, it’s something that runs through my mind. I want to make sure that everything has been addressed properly. ONO: Mr. Chair? KERN: Commissioner Ono. ONO:Well, I would like to ask one question. He had a response on the previous, but I do have a follow-up question. KERN: Okay, you want to come forward and issue a response? ELSTON: William Elston again. My take on this is that the homeowners association for whatever dispute they may have with me, or I with them, we all have a remedy available to us. The road conditions, I don’t think either I, or the homeowners, or this Commission for that 6 EXHIBIT A matter, is able to assess liability for third parties that come on to the Estate and use the roads. I don’t think this Commission has the ability or authority to assess responsibility as it pertains between me and the homeowners association, if I have a dispute with the homeowners association. If you put a condition like this in my permit, then who’s going to determine what’s current? If I have dispute with the homeowners association and they say I’m not, I say I am, we got a court fight, are you involved now? I’m going to endanger my permit because this private dispute has arisen? If the homeowners association doesn’t keep the roads up according, you know, to what I think should be a standard, which they don’t, is this Commission in a position to enforce their obligation to keep the roads in a condition that I would think that they are? And I, you know, I don’t think you can do that. It’s a private thing between the homeowners association and myself, and the other owners. If the roads were dedicated to the County and the County accepted the dedication then, you know, you have every authority to control those roads and my taxes that would be available for those repairs. I think it’s good that I wouldn’t be treated differently. But I just wanted to say that I have very serious, very serious concerns that this Board get involved between me and what private dispute I would have with the homeowners association and all the damage or allthe threat is against me because now my permit might be a danger because I have a dispute. That’s all I have to say. Thank you. ONO: Mr. Chairman? KERN: Commissioner Ono. ONO: Yes, I have a question on the staff’s recommendation. I understand that you mentioned that there were previous bed and breakfast programs that were not under the same conditions. But my concern is that do we prolong this condition to future requests because, you know, previous requests were not met with the same conditions? I guess what I’m looking at is, should we continue to do, have a wrong continue? There has to be something that says, okay, at this time we will, there has been an improved suggestion and that this suggestion is for the betterment of the community; and then rather than prolonging the, I hope you understand my question. MECKLENBURG: I do. ONO: Okay. How do we address that situation so that when future requests come in they will understand that these conditions have to be met? MECKLENBURG: I think what the Director is suggesting today is to approve the permit, if the Commission chooses, without that condition. And I know the Department is going through looking at some Code amendments and rules changes and looking at the B&B and road issues at this time, and then if changes are implemented then from that date forward require conditions on future permits. KERN: If I could, I’d just like to add a little bit in there too. Cause I live in Hawaiian Acres and it’s kind of one of those places that the roads are pretty poor, and there’s a lot of very poor roads. And our Association dues are not mandatory. So if we don’t pay them, they can’t put a lien against our house or anything like that. And it gets really challenging because they fix part of the roads that they think needs to be fixed and they don’t fix other parts of the roads that maybe I think need to be fixed. So it’s this back and forth thing. And I can see where it’d get really complicated being a resident, being a, you know, alot owner in there, and seeing other roads getting fixed and your road not, and you’re still paying out the money. So in my opinion I think it does make sense to leave it out; and it’s an issue between the applicants and their Association. 7 EXHIBIT A And if the Association has issues with lawsuits on their road, there are remedies for them to put in place – put a sign at the beginning of the road or something saying “Enter at your own risk.” That should, you know, something like that should be able to take care of the court. On a personal note, I hope that the Planning Department does not prohibit bed and breakfasts fromareas with semi-poor road quality. Because there is some Hawaiiana in that they don’t drive a paved road every time to get to your bed and breakfast; and hopefully that can be all done with compromise. That’s my two cents. Commissioner Domingo. DOMINGO: I was ready to make a withdrawal of that condition in the Director’s recommendation concerning the MR, MAs as suggested and explained to us. I would like to withdraw that from the original motion with the understanding that the Planning Department will then review its application, review this topic with future applicants of bed and breakfasts in that area. KERN: Do we need a second for that, for the withdrawal? ISHIBASHI: Second. KERN: Okay. So, very good. So now the motion, just to clarify, is the original motion for approval with the original conditions. DOMINGO: Yes. KERN: Okay, any other discussion? Seeing none, Maija. COTTLE: Thank you, Mr. Chairman. Commissioner Domingo? DOMINGO: Aye. COTTLE: Commissioner Ishibashi? ISHIBASHI: Aye. COTTLE: Commissioner Au? AU: Aye. COTTLE: Commissioner Ono? ONO: Aye. COTTLE: And Mr. Chair? KERN: Aye. COTTLE: Okay, the motion passes five-zero to approve. KERN: You’re approved; and you’ll be notified with a letter in writing shortly. ELSTON: Thank you, thank you very much. KERN: Good luck to you. 8 EXHIBIT A ELSTON: Thank you for listening. The discussion ended at 9:55 a.m. Respectfully submitted, Sharon M. Nomura, Secretary A T T E S T: Zendo Kern, Chairman Windward Planning Commission 9 EXHIBIT A