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HomeMy WebLinkAbout2007-03-16 TIBBETSON PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MARCH 16, 2007 DANIEL IBBETSON (SPP 05-000015) A regularly advertised hearing on the application of was called to order at 4:18 p.m. at the King Kamehameha's Kona Beach Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii, with Chairman William Graham presiding. PRESENT:William GrahamABSENT & EXCUSED:Andrew Iwashita C. Kimo Alameda Alvin Rho Rene Siracusa TakashiDomingo Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director (Left at 4:20 p.m.) Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately one person from the public in attendance. APPLICANT: DANIEL IBBETSON (SPP 05-000015) Special Permit (SPP 05-000015) to operate a 2-unit bed and breakfast establishment on 0.722 acre of land situated within the State Land Use Agricultural District. The property is located along the west (makai) side of Mamalahoa Highway (Highway 11), approximately 120 feet south th of the Kaohe Road-Mamalahoa Highway intersection, Kaohe 5, South Kona, Hawaii, TMK: 8-7-9:14. GRAHAM:The Unfinished Business, the applicant is DanielIbettson, Special Permit 05-000015 to operate a 2-unit bed and breakfast establishment on 0.722 acre of land situated within the State Land Use Agricultural District. The property is located along the west (makai) side of Mamalahoa Highway (Highway 11), approximately 120 feet south of the Kaohe Road- Mamalahoa Highway intersection in South Kona, Hawaii. I think maybe Mr. Torigoe could give usalittlebackgroundfirstandthen-. WOODWARD:Mr.Chairman,ifImightpointout? GRAHAM:Goahead. WOODWARD:Wehavealetterfromhisattorneyrecommendingthatwecontinuethis because hes not going to be here. 1EXHIBIT E GRAHAM:Yes, Im aware of that; and I think thats very relevant. Id just like Mr. Torigoe to give us a little background on how we got to where we are today before we deal with the letter. TORIGOE:Thank you, Mr. Chairman. As you may recall this matter went up to the Circuit Court on appeal after the denial of a special permit for a bed and breakfast establishment. The Circuit Court reversed that decision and has remanded it to the Planning Commission for further proceedings. And I understand that perhaps the Planning staff can give you further background, but I think there has been some action taken by the Planning Department to cite the applicant for continuing to operate a bed and breakfast, although the permit has not been issued as yet. And so the applicants attorney contacted the Planning Department and requested that the matter be put back on the agenda. And I think thats where we are today. GRAHAM:Thank you. Mr. Yuen? YUEN:Yeah, I have to take my leave. I was asked to attend a community meetinginPepeekeoandImgoingtoleavethisinMr.Hayashiscapablehands. (DirectorYuenleftthemeetingatthistime,4:20p.m.) GRAHAM:Thankyou.Norman,didyouhaveanyfurthercommentstomakeonwhat Mr. Torigoe just told us? HAYASHI:I just wanted to explain how this got back on the agenda. If I recall, back th in January, for those of you who were on the Commission at that time, at the January 19 meeting a request was made by both Mr. Krueger and Mr. Matsukawa to continue this matter until they have a chance to resolve some of the issues; and they were to get back to the staff as to when they wanted to be back on the agenda. I was contacted by Mr. Krueger who is Mr. Ibettsons attorney a couple of weeks ago and he indicated to me that they would like to be back on the agenda. I did indicate to him that he would need to check with Mr. Matsukawa as to whetherthatisokaywithMr.Matsukawa.IpersonallydidnotcallMr.Matsukawa,andmaybe thats my fault for my oversight. But, anyway, this was placed back on the agenda and now we receivedaletterfromMr.Matsukawaindicatingthathewouldnotbeabletomakeitatthis meeting today and that he would like to have this matter deferred to the next Kona meeting. So as far as the staffs and Departments positionS, we would recommend that this matter be continued to the next meeting until Mr. Matsukawa or his representative is able to be at the meeting. For your information, Mr. Matsukawa represents Mr. Kaiawe who is the intervenor in this particular case. GRAHAM:Thank you, Norman. My inclination at this point would be to invite Mr. Krueger and Mr. Ibettson to the table. And if they have any objection or whatever about us choosing to defer this until the next meeting, Id like to hear from them first. Could you all raise your right handS so I can swear you in. Do you affirm to tell the truth on this matter now before the Hawaii County Planning Commission? KRUEGER:I do. IBETTSON:I do. 2EXHIBIT E GRAHAM:Thank you. You may be seated. KRUEGER:Thank you. GRAHAM:And if youre going to address my inquiry or whatever else you think is relevant at this moment, just start with what you have to say with your name and address, please. KRUEGER:Thank you very much, Mr. Chairman, Members of the Commission. My name is Dennis Krueger. My address is 75-5722 Kuakini Highway, Kailua-Kona; and I represent Mr. Ibettson. Mr. Hayashi is correct that I did contact him approximately two weeks ago and asked that this matter be placed back on the calendar. My reason for doing that was for several reasons. But in response to Mr. Hayashis comments about Mr. Matsukawas knowledge, I did in fact communicate with Mr. Matsukawa, I did explain to him why I was askingthatthematterbeplacedbackontheagendaforthePlanningCommission.He acknowledged that, he agreed with that, he accepted that. Two days ago I received the same copy of the letter that the Commission received from Mr. Masukawa, which surprised me. And I called him to ask him why, you know, he hadnt said anything; and he said, apparently he had forgotten about it. And I told him that it was our intention today to come to the Commission and to ask the Commission to proceed with this matter, not withstanding his request two days ago to continue it. There are several reasons for that. One is, as Mr. Torigoe has mentioned, that the Planning Department has noticed a violation to Mr. Ibettson claiming that hes doing business as a bed and breakfast. But its based upon the fact that he has a website in existence that has been in existence for approximately 14 years, and it was based upon a previous bed and breakfast that he had; and he really doesnt want to take that website down. And I dont understand all the complications of it, but apparently by removing that website it would be very difficult to get in the position that he is in now. He has put a statement on the website that hes not accepting reservations, that hes not going to be doing business. But we dont want the issue of that to be clouded further by waiting an indeterminate amount of time for the Planning Commission to decide whether or not Mr. Ibettson should be entitled to a bed and breakfast permit. Thats one reason. The other reason that we asked the Commission to continue this matter in January was because we were going to go to mediation and try to resolve this issue through mediation. Since that time the Hawaii Conference Foundation has indicated they would not agree to mediate the issue, any issue, having to do with bed and breakfasts because as far as they were concerned that didnt involve the Hawaii Conference Foundation. Number two, in an informal meeting that we had with Mr. Masukawa and Mr. Kaiawe in my office to try to resolve this matter short of mediation, Mr. Kaiawes position at that time was that the only way that he would agree to resolve this was to have Mr. Ibettson remove his house from the property. Given that we said, you know, if thats your position we really cant agree to mediate this thing because thats not an acceptable resolution as far as Mr. Ibettson is concerned. So those are the reasons were back here; and thats the reason were asking the Commission to proceed with this. Mr. Ibettsons health is also an issue, you know; and he really doesnt want to 3EXHIBIT E have to wait another month, or I dont know when the next meeting is in Kona, for the Commission to make a determination. I dont know that we really need, and I dont mean to in any manner disparage Mr. Matsukawas client or Mr. Matsukawa, but I dont know that we need to have them here for the Commission to take action or to make a determination on the actual application itself in light of the Courts ruling. Those are my comments. Im available for questions. GRAHAM:Could I ask Mr. Torigoe again for clarification, just so we know where were headed. We did have a contested case and Mr. Matsukawa was the intervenor as weve heard, and then we closed the contested case, and we made our decision, and then our decision was appealed to the Court, and the Court has overturned our decision based on a specific finding of the Court and has remanded it back to us. And so are we now in the position, I guess this is the point of my question, where we would just agendize the item and then we would treat it like anyotheritemforaspecialpermitbedandbreakfastwiththeunderstandingthatweneedto follow the Courts instructions, but that were no longer in a contested case situation? We have no more legal hurdles to deal with other than just to deal with the content of the application considering the Courts remand instructions? Is that all correct? TORIGOE:Not quite. I think basically the Court has remanded the matter back to the Planning Commission and, in its words, €for consideration consistent with this order. The order basically included the finding that Mr. Kaiawe was properly admitted as a contested case party, and so I think we have consider that, this. It comes back to the Commission. It is still a contested case situation. But we need to, well, the Commission needs to go forward and, as the Court said, consider the matter in light of the Courts ruling. GRAHAM:So then if Mr. Kaiawe were here he might ask that we reopen the contested hearing and allow extra evidence or something like that, and then wed have to deal with whether we want to do that or not? Is that kind of correct? TORIGOE:Right. Thats one scenario that could occur. And so basically I think it would be generally advisable to have Mr. Kaiawe and his counsel here before you continue. GRAHAM:Thank you. Thoughts from the Commissioners? Commissioner Siracusa. SIRACUSA:Yes. And also in deference to our new Commission Members who werent here when we heard the case previously, I feel that its important in order for them to all be on the same page with the rest of us, to be here and be able to hear both sides of the story, both sides of the issues from both parties. And so while I realize this is creating some inconvenience for Mr. Ibettson, I still feel that in the interest of fairness we really ought to wait until all the parties are here and give our new Commissioners an opportunity to be in completely in the loop. GRAHAM:Thank you, Commissioner Siracusa. Commissioner Watanabe? WATANABE:Yeah, and in all fairness to Mr. Ibettson, maybe we should direct staff to put a stay on any further notices to Mr. Ibettson since this delay is not necessarily within his control. And if were willing to do that, then Id be comfortable with making a motion to 4EXHIBIT E continue this to the next Kona meeting with including a stay on any further action on the bed and breakfast situation. GRAHAM:I think I might just askNorman if, I think it was represented to us that the reason for the County coming forward and issuing to the applicant here what they did, was represented to us, was based on existence of the website. Is that the only basis for that cease and desist order? HAYASHI:That was one of the reasons for the letter that we sent regarding the violation. There was also another issue regarding their having the, I believe, it was the kitchen or kitchenette in each of the bedrooms; and we asked him to remove those kitchen facilities. GRAHAM:Thank you, Norman. So the issue is somewhat broader, I think, than just the website. HAYASHI:Yes, and I think that should be treated separately because thats an administrativematterwhichtheDepartmenttakescareofinenforcingourZoningCode. KRUEGER:Mr.Chairman,mayIcommentonthat? GRAHAM:Mr.Krueger. KRUEGER:There are not and have never been any kitchen facilities in either of the two bedrooms, which are the only two rooms. There is a sink, there is a refrigerator. There are no cooking facilities, and have never been any cooking facilities, or anything like that. And that also has been represented to the Planning Staff; and theyre aware of that. GRAHAM:Okay, well, then I think Mr. Hayashis point though is that is an issue between the Planning Department and the applicant here and not something for the Commission to adjudicate in any way. WATANABE:Okay. GRAHAM:Commissioner Watanabe. WATANABE:Okay, with that clarification then I amend the motion to just continue this Ibettson case, bed and breakfast case, until the next Kona meeting. SIRACUSA:Second. GRAHAM:Thank you. Seconded by Commissioner Siracusa. Any discussion by the Commissioners? Commissioner Rho? RHO:I just wanted to point out that I didnt hear this case before, and there are two members who are newer than I and theres one thats still, well, we have a vacancy. So out of 8 there will be 4 who would not have heard this case before. So I really do think we need to postpone it. 5EXHIBIT E GRAHAM:All right, thank you. Any other comments before we do a vote on the motion to postpone? Norman? HAYASHI:Thank you, Mr. Chair. I think we did send the complete transcript and docket to each of the Commissioners, but well verify that, those that were not in attendance at the previous meetings. Commissioner Watanabe? WATANABE:Aye. HAYASHI:Commissioner Siracusa? SIRACUSA:Aye. HAYASHI:Commissioner Woodward? WOODWARD:Aye. HAYASHI:Commissioner Alameda? ALAMEDA:Aye. HAYASHI:Commissioner Domingo? DOMINGO:Aye. HAYASHI:Commissioner Rho? RHO:Aye. HAYASHI:Chair Graham? GRAHAM:Aye. HAYASHI:Mr. Chair, motion carries. GRAHAM:Thank you. Thank you, Mr. Krueger and Mr. Ibettson. KRUEGER:Mr. Commissioner, may we ask what the date is of the next meeting? th HAYASHI:The next Kona meeting will be on April 27 , which is a Friday. KRUEGER:Thank you. GRAHAM:And, Norman, could you be sure that Mr. Matsukawa is aware of that? HAYASHI:Yes. Ill touch basis with his office. IBETTSON:Can I make one request? 6EXHIBIT E GRAHAM:Hold on a second. Is that all right with the Commissioners? DOMINGO:Yes. GRAHAM:Certainly, go ahead, Mr. Ibettson. IBETTSON:I have one request of all of the Commissioners, that they sit and read precisely what it was the Judge wrote as far as the appeal is concerned. And once youve read that, I think you might have a little different flavor in your mind. GRAHAM:Thank you, Mr. Ibettson. The discussion ended at 4:34 p.m. Respectfullysubmitted, Sharon M. Nomura, Secretary 7EXHIBIT E