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HomeMy WebLinkAbout2005-03-18 TWAIKOLOA PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MARCH 18, 2005 A regularly advertised hearing on the application of WAIKOLOA DEVELOPMENT was called to order at 10:51 a.m. in the Hapuna Beach CO. (ORDINANCE NO. 95-51) Prince Hotel, Hau/Lehua Room, 62-100 Kaunaoa Drive, Kohala Coast, Hawaii, with Chairman Fred Galdones presiding. PRESENT:Fred GaldonesABSENT & EXCUSED:Rene€ Siracusa C. Kimo Alameda Earl Fujikawa WilliamGraham Jeffrey McCall Francis Smith Hannah Springer Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler representing Department of Public Works And approximately 16 people from the public in attendance APPLICANT: WAIKOLOA DEVELOPMENT CO. (ORDINANCE NO. 95-51) Request for a 10-year time extension to Condition B (time to secure Final Subdivision Approval) of Change of Zone Ordinance No. 95-51 that rezoned approximately 761 acres of land from Unplanned (U) and Multiple Family Residential ƒ 1,500 square feet (RM-1.5) districts to Open (O) and Residential and Agricultural 1-acre (RA-1a) districts. The property, referred to as the proposed Waikoloa Highlands Subdivision and Golf Course, is located along the south side of Waikoloa Road and south ƒ southeast of Waikoloa Village, Waikoloa, South Kohala, Hawaii, TMK: 6-8-2: portion of 16 and 6-8-3: portion of 32. GALDONES:Commissioners, we are on Agenda Item No. 5. Applicant is Waikoloa Development Co. (Ordinance No. 95-51). This is a request for a 10-year time extension to Condition B (time to secure Final Subdivision Approval) of Change of Zone Ordinance No. 95-51 that rezoned approximately 761 acres of land from Unplanned (U) and Multiple Family Residential ƒ 1,500 square feet (RM-1.5) districts to Open (O) and Residential and Agricultural 1-acre (RA-1a) districts. Jeff? EXHIBIT E DARROW:Thank you, Mr. Chairman. If I may direct your attention to the location map, the area of this application is very near our last application. If you were traveling mauka on Waikoloa Road, you would pass through the Waikoloa Village area. And just mauka of that on the southeast side, we have the area of this application, identified in this area with the zoning being Rural, correction, Residential Agricultural 1-acre identified in brown, and the Open zoning identified in green which is part of the areas that are requested for the golf course areas. The Applicant in this case, Waikoloa Development Company, is requesting a 10-year time extension to comply with Condition B of Change of Ordinance No. 95-51. Originally, Change of Zone Ordinance No. 91-60 was approved on December 27, 1990, which changed the district classification from Unplanned and Multiple-Family Residential 1,500 square feet to Residential Agricultural 1-acre and Open zoning for approximately 761 acres. This was for, to allow for the development of the Waikoloa HighlandsGolfEstatesandGolfCourseproject. InMarchof1995,theordinancewasamended.TheeffectivedateforOrdinance,Change of Ordinance No. 95-51 was approved and this allowed 5 additional years to comply with Condition B and also changed Condition C to allow for required Final Subdivision Approval for not less than 175 lots to be secured within a 5-year period. The Planning Department approved an administrative time extension for Condition B on May 9, 2000. So an administrative time extension has been granted in relation to this particular rezoning. If I may bring your, to your attention some of the added conditions to the amended ordinance. We€ve added a revised Condition No. D relative to housing. We€ve added a new Condition No. G which restricts the construction of second dwellings and also CPR€s. New Condition H has been added, and if I may read this to you. This is relative to the Applicant€s coming in to change the State Land Use designation from Agricultural to Rural, basically because of the Hokulia issues that have been occurring. It says, Condition H reads, Before final subdivision approval, applicant must obtain reclassification of the RA-1a zoned area from the State Land Use Commission to the Rural district. This condition may be waived by the Planning Director, after consultation with Corporation Counsel, if an appellate judicial decision, or substantive change to Chapter 205, Hawaii Revised Statutes, clearly establishes the legality of this project in the Agricultural State Land Use district, including the residential uses of the lots.‚ We€ve also added a new Condition I which is regarding fair share contribution. And I€d like to bring your attention to a change that was brought to our attention by the Applicant. The Change of Zone Ordinance No. 95-51 actually had two Condition G€s. Unfortunately, we overlooked that in revising our conditions. So what we€re doing is we€re adding condition, the second Condition G to our deletion. 2 We will be adding a revised Condition J, and if I could read that to you. The new Condition J will read, Should the Council adopt a Unified Impact Fees Ordinance setting forth criteria for imposition of exaction or the assessment of impact fees, conditions included herein shall be credited towards the requirements of the Unified Impact Fees Ordinance.‚ This will be the new Condition J. Amended Condition J and K will be changed to read condition, new Condition No. K and L. Thank you for that. We have received a late submittal from the Applicant, and that€s been passed out to the Commissioners, that is stating their objections to the revisions of the ordinance. And we€ve also submitted a memorandum from the Planning Director to the Commission in response to these objections. The Planning Director is recommending that the Planning Commission forward a favorablerecommendationwithaddedandamendedconditions.Oneofthese,Iforgotto mention too that one of the amended conditions will be instead of the 10-year time extension that the Applicants are requesting, the Planning Director is recommending a 5-year extension, and that these be forwarded to the County Council with a favorable recommendation. Thank you. Are there any questions? GALDONES:Commissioners, any questions of Jeff? Commissioner Springer? SPRINGER:Jeff, I€m looking at the Condition C on Page 5. And in that discussion it says that, there€s mention made of a 1989 Traffic Impact Analysis Report. Is that the most current Traffic Impact Analysis that is being worked with? DARROW:As far as I€m aware of. I€m not aware of an updated Traffic Impact Analysis Report. SPRINGER:Given the concern that the citizenry of West Hawai i has raised regarding traffic conditions, is this sufficient for the work for us today? DARROW:If it€s okay if I can direct that question to our representative from the Department of Public Works, Ki Emler. SPRINGER:Thank you. GALDONES:Mr. Emler? EMLER:Thank you, Ms. Springer. Your question is related to currency of the traffic study? SPRINGER:Yes. 3 EMLER:I don€t believe we have a more current traffic study. I didn€t come, I didn€t find one, anyway, when I reviewed the application. I did make a comment to the application that the traffic study should be updated and monitored periodically to determine when the intersection should be signalized, based on warrants of the MUTCD. SPRINGER:Mr. Chairman? GALDONES:Commissioner Springer? SPRINGER:Should that then be reflected in Condition C or somewhere else in the conditions of this? EMLER:Well, that was my recommendation. It€s up to the Planning Director to impose the condition. SPRINGER:Mr. Chair? GALDONES:Commissioner Springer. SPRINGER:Could the Director respond to that question that I have about the currencyofthe1989trafficreportandifthereshouldbeamorecurrentanalysisdone. GALDONES:Mr. Yuen? YUEN:I think that€s a good suggestion. GALDONES:Mr. Emler, if we€re requesting a more updated one, how long does that take to acquire something like that? Where I€m going with this is if we€re going to make that as part of the condition, shall we make it part of the condition that they do get that now before we approve it? But I don€t know how long it€s going to take before they can get something like that. I€m looking at how it€s going to impact their application. YUEN:It should be, the timing should be before Final Subdivision Approval because we don€t know, there€s no sense doing it now if they don€t build now. The time to do is, say they build in 2009, they go to subdivision in 2009, that€s when we will see that, that€s when we will see it done. GALDONES:Thank you, Mr. Yuen. Mr. Emler? EMLER:Based on my reading of the ordinances, it would seem that it separates when the warrants are needed. It actually separates when the warrants are needed from the construction of the subdivision. GALDONES:Okay, thank you. Commissioner Springer? 4 SPRINGER:I€m not sure I understand what a warrant is, but perhaps if the Director could respond to Mr. Emler€s comment. YUEN:Wait a second. I€m looking for the exact language. There€s an odd condition in B that is part of the original ordinance. And it essentially got changed in there. And what it says, and this is in the middle of the paragraph, it says The Applicant shall install and dedicate the traffic signalization improvements required in Condition C prior to the Final Subdivision Approval for more than 350 lots of twenty acres or less, or sooner in the event the warrants for such installation are justified by the director of public works.‚ What this means is that, and it is an usual condition, that the director of public works can make them pay for that, to put in a signal when the director of public works sees it€s warranted. That is what it says. Now returning to the question of the TIAR which is a study that would determine, well, he,maybeMr.Emlercouldgiveyoualittle-.ThispartI€mnotsure-.Istherea specific, there€s not a specific warrant for a signal in the MUTCD, right? There€s a, indications by delay and, but it€s ultimately a judgment here, a judgment decision, right? EMLER:There are, I believe there are six definite warrants; and if the intersection meets certain number of those warrants, then it€s recommended it be installed. There are at least six to give us authority to require signal installation or do a signal installation. YUEN:Are those the kinds of things that would be found under a TIAR or are they warrants that you would determine by observation of an intersection? Can you tell us what they are and how you would determine that there was a warrant? EMLER:It could be both. YUEN:It could be both. EMLER:It could be based on the actual delay in terms of at the , intersection. YUEN:What are the warrants? EMLER:I don€t have them all -. YUEN:Can you give us some examples? EMLER:Well -. YUEN:Sight distance would be one, sight distance is okay or no -? EMLER:I wouldn€t think so. I think one of them is the total volume through the intersection during a 24-hour period or 12-hour period. I believe the peak- 5 hour period of volume is number one. I believe ratio of direct traffic volume is another one. Then I believe delays of any particular movements. So thats at least four of them. I€m sure I could name all six if I -. YUEN:Pretty, pretty good. I do know, we did get a TIAR for this intersection done by Castle & Cooke. Did you see that? EMLER:No. YUEN:Okay, we did get one done by Castle & Cooke in the last year. EMLER:I didn€t review that. I believe that was done out of the Hilo office. YUEN:Right, right. Anyway, their conclusion was that it wasn€t warrantedyetbutitwould,itmightbeasthebuildoutcontinuesonoftheWaikoloa Development, although they felt that their having a second entry at their development would alleviate some of the traffic at the Paniolo intersection, and then you wouldn€t need a signal at the Paniolo intersection. I know that many people living in the community say they need a signal right now, as a matter of community here. And so we do have a TIAR that accounts that, you know, that€s professionally done. It was done for this sort of project. I don€t know that they, you know, what the opinion is of the Department of Public Works on the particular study at this time, but we do have one that was done in the last year or so. EMLER:The zoning for that parcel is already granted though and there€s no condition for them to install a signal. However, we have a condition on this particular development. And in our comments we really just wanted to point out the fact that, yes, we have a developer that€s required to install a signal here; and it does say it doesn€t have to be when they do their development, it€s when it€s warranted. And so we decided to make an issue out of it because it€s an opportunity to have someone do it. However, if it€s warranted now, you know, I don€t know what the study said, but the County could end up having to pick up the tab for the signal. It€s just that we€ve already imposed this requirement on a development, and it seems like we have an opportunity, that€s all. YUEN:No, you€re absolutely right that the current condition and what we carry over does require the Waikoloa Highlands project to signalize the intersection when the Department of Public Works determines that it€s necessary. That€s the way it€s written. And then the only thing we€re discussing is whether we should have a condition requiring them to make them, requiring them to do a study now. And I just wanted to mention that we did have a study, we do have a study done for another development of this intersection in the last, in the last year or so. SPRINGER:Mr. Chair? GALDONES:Commissioner Springer? 6 SPRINGER:To Mr. Emler, in that discussion of delays, were those delays in moving through the intersection itself? EMLER:Yes, the delay would be the number of seconds in the time it takes for vehicles to move through the intersection on an average. SPRINGER:I€m wondering about backup along the highway and delays that it takes to move over the course of a mile on the Kaahumanu Highway. Is that taken up in that discussion of volumes of vehicles that pass through the intersection? Is there a time component to the discussion of volume of cars that moves through the intersection? Are there peak traffic times? EMLER:Are there now or -? SPRINGER:Yes,oranyplacethatyou€redoingananalysis. EMLER:Ithinkyou€respeakingtoanoverallaveragedelayindetermining what the level of service is for, say, a link of roadway from an area to another. Is that what you€re asking for? SPRINGER:I may only be delayed 15 seconds at an intersection, but it may take me an hour to get to the intersection from a point five miles away. EMLER:Yes, that sort of thing should be determined in the analysis of the level of service of the facility and, apart from the intersection. SPRINGER:And what is the facility? EMLER:The roadway, in this case, Queen Kaahumanu Highway. SPRINGER:Thank you. GALDONES:Other questions? Further discussion? Hearing none, may we have the Applicant or his representative please come forward? Good morning, Ms. Bail. BAIL:Good morning, again. Lisa Bail for the Applicant. GALDONES:Ms. Bail, you have already been sworn in and you€re still under oath. Ms. Bail, have you received a copy of the Background Report and also the Recommendations and the issues as stated by Jeff, and do you have any comments? BAIL:Yes, we did receive the Recommendation Report. We got it on Monday morning. I apologize for the late submission in writing to the Commission but I felt it was important to state our objections to that Recommendation in writing so that the reasons for them were clear. I don€t believe in surprises on the day of the hearing; and I do appreciate the Planning Director responding in writing yesterday afternoon. 7 I believe we do have some significant disagreements with the content of the Recommendations. Some of those have been touched upon today. The first one I would like to raise for purposes of discussion is the issue of the time length of the extension that we are requesting. We submitted our application requesting a 10-year extension of time. The Recommendation has come back for a 5-year extension of time, but also to delete the administrative extension provision. And I was here and I was listening to the earlier discussion with the Kamehameha Investment€s application, I understand. I would like to reiterate my request for a 10-year extension of time and reinstatement of that provision that has been deleted in the Director€s Recommendation. GALDONES:Are there any other issues that you would like to speak to? BAIL:There are several I would like to speak to. I think as a threshold matter,youknow,thecommentwasmadeaminuteagothatanextensionoftimeisan opportunity to impose new conditions on the permit. I wanted to explain so that everybody has an understanding of the circumstances that lead us here today for an extension of time. This is a development that was planned many years ago. The development will be financed through the sales of the lots themselves. And without the profitable market to do that, it€s created the delay that was unforeseeable and has resulted in a delay beyond our control in proceeding with the development. I think the difference of opinion that we have with the Recommendation Report as a general or as a threshold matter is that I do not believe that it€s proper to change the conditions on a permit when the request is for an extension of time. I don€t believe that the Recommendation identifies any additional impacts resulting from the extension of time and, therefore, believe under the Federal case law of Nollan and Dolan that there is not an essential nexus between the condition and the purpose served by denying the request. The conditions are unrelated in nature and extent to any impact resulting from this extension of time. This is a rezoning request, it€s an old rezoning request that went in many years ago. It was scrutinized, conditions were imposed; and I would not agree as a threshold matter that new conditions can be imposed at this point in time. Our specific objections that I stated in my letter of Wednesday afternoon to the Recommendation are to Paragraphs B as in boy, D as in dog, G, H and I. We request that those Recommendations not be adopted; and we do ask for a 10-year extension of time. Regarding the affordable housing requirement, I think through our exchange of correspondence, we realize a disagreement with the Planning Department€s Recommendation on affordable housing. I certainly do acknowledge the significance of that issue to this island and to this Commission. The history of this project, however, has been that there never has been an affordable housing requirement imposed on Waikoloa Highlands. Unlike other Waikoloa developments, for example, when the beach resort was constructed, there was an affordable housing requirement and an acknowledgment of that 300 acres of land was dedicated to the County in Waikoloa Village for affordable housing purposes. 8 When that Memorandum of Agreement of understanding was signed with the County, it was clear that that land was donated for the purposes of the beach resort, but it was also, and the memorandum itself acknowledges that it was intended to complement the Highlands. The reason it wasn€t dedicated for the Highlands is that there was no affordable housing requirement for the Highlands, and we€ve provided to you as an attachment to our Wednesday afternoon letter an opinion from Corporation Counsel from June of €94, which opines that Waikoloa Highlands does not have a housing condition as the change of zone for the Highlands involved agriculturally-zoned land which does not trigger a housing condition. I know the value of that land, probably about 10 years ago, was more than $36 million, according to an assessment that was done for the County. I suspect the value of that land is significantly higher today. In 1995, we came before the Council with our last request forextensionoftimeonthisproject,andthatextensionoftimewaspassedwithoutan affordable housing condition. I think we have a respectful disagreement of opinion between myself and the Planning Department as to the applicability of the new affordable housing policy. I read the sections of that policy regarding its applicability only to new rezonings or to prior rezonings that contain an affordable housing condition. I feel very strongly that this is neither. This is not a new rezoning, it€s a rezoning that happened many years ago. And it€s not a prior rezoning that contains an affordable housing condition. It never did. I think the point I wanted to emphasize, though, in the affordable housing issue is the recognition that affordable housing is an important issue to the community; and as recognition of that, the 300 acres was donated. I think ironically had there been an affordable housing condition for the Highlands back then, the value of the property would have more than satisfied both the condition, the affordable housing condition for the beach resort, as well as the affordable housing condition for the Highlands, had there been one. So now to come and be before you with a recommendation that, you know, there€ll be yet another affordable housing requirement, I do feel compelled to state a very strong objection to the record, for the record against that condition being imposed. With regard to Paragraph G, that€s the paragraph in the Recommendation that recommends deed restrictions. There are deed restrictions that have already been a commitment of this project that we provided and received approval for, language in the deed which restricts use to a single dwelling. We do object to an additional restriction based on a condominium property regime limitation, which is the recommendation in Paragraph G. The reason for that is that the condominium property regimes are a form of ownership of land, not a form of land use regulation. It€s a method of owning property. It doesn€t necessarily regulate how many people may use that property or how they may use it. 9 Regarding Recommendation Paragraph H, that€s the requirement that we go back before the Land Use Commission for reclassification. It€s not clear to me as I€m sitting here today whether we are the first ones to have this condition recommended just for us. But I think the objection is that as a threshold matter, you know, the Hokulia case is one of the reasons we€re here seeking a request for extension of time today. That has obviously created significant land use issues for this island. One of the opportunities we would like to have is to await the outcome of theSupreme Court€s determination of that issue without having to go in and seek an immediate rezoning. In effect, when the conditionsare read together, what we are required to do is to start that process before the State Land Use Commission immediately, if we are going to complete the Chapter 343 environmental review process and complete the Chapter 205 Land Use Commission Reclassification process all before we obtain Final Subdivision Approvalwithin5years.Wewouldliketohavetheopportunitytohavesomebodyelse spend legal fees resolving those issues before the Supreme Court without us being forced to do so. We also object that the Recommendation requires us to seek a particular type of classification from the State Land Use Commission. It does require us to seek Rural reclassification. The other option would be to seek Urban reclassification; and that€s an opportunity or a choice we feel we should have. And, finally, regarding the fair share requirement, that€s Paragraph I in the th Recommendation, I urge each of you to review the letter from March 16 that I sent just two afternoons ago. In that letter I explained the various requirements that have already been imposed as conditionsfor the Waikoloa Highlands. Many of those conditions address the very issues that the fair share or a Unified Impact Fee Ordinance would be designed to address, such as traffic. Channelization of the, at the Paniolo intersection has already occurred at a cost of $300,000. We certainly don€t dispute that signalization is required and will happen. Obviously,whenitwillhappenisanotherpointofdiscussionfortoday,butthatwilloris currently estimated to cost about$600,000. We did complete a Traffic Impact Analysis Report.There€salsoadrainagesystemrequired.Inadditiontoallofthosethingsbeing required for this project, there are other dedications that have happened to the County of Hawai i.AparceloflandfortheFireDepartmentinWaikoloawasdonatedatavalueof almost $800,000. Recreational facilities and infrastructure were created at Waikoloa CommunityParkasaconditionofSpecialUsePermit71atacostofabout$305,000,and then the donation of more than 300 acres for affordable housing last valued for the Countyofmorethan$36million. That summarizes my objection to the Recommendation and, again, I would request that the time extension be granted as 10 years instead of 5 years. And I€m willing to answer any questions anybody may have. 10 GALDONES:Thank you, Ms. Bail. Commissioners, are there any questions or comments? Commissioner Springer? SPRINGER:My questions are not for the Applicant€s representative but rather for the Director to respond in greater length to her objections that we see in the memo before us. YUEN:Let me start with the things that we agree on and then get to the much longer list of things that we disagree. I think they make a good case in their letter for a 10-year time extension; and I would agree with that, but with no administrative time extensions, consistent with what we did earlier. So they asked, they applied for a 10-year time extension. I don€t, given what they€ve written, I don€t have a problem with saying that they would have a 10-year time extension, with any further extensions going back there to the County Council. On the CPR, this is a standard condition that we put on, given the abuses of condominiumsbeingusedasasubstituteforsubdivision.Icanunderstandthat,inthis case, it€s not meant to prevent the project from being developed as a condominium, that sometimes projects have been developed as a condominium. We now have controls in place that would subject that to the same requirements as a subdivision. So we could change the language in Condition -. DARROW:That would be the new Condition G. YUEN:Where it says, prohibit the construction of a second dwelling unit and condominium property regimes on each,  it would say, the construction of a second dwelling unit, and condominium property regimes on each one acre lot.‚ In other words, condominiumize the one-acre lots but the project as a whole could be done as a condominium, or the golf course, or the golf clubhouse, or any portion of it. Other than that, going on, the point of the reclassification, I also don€t object to their, that saying that you could go to Rural or to Urban if they so choose. There are different, there will be different issues at the Land Use Commission but the conditions of this ordinance should limit it to one or the other. So I don€t have a problem with saying that they should reclassify to Rural or to Urban. Now to the points of disagreement. We look at these time extensions as a way to review projects in the light of changed circumstances in the community. Housing, so let€s turn to the housing condition. Even if there had not been an affordable housing condition on the prior ordinance, we would have recommended that it be added to this time extension as we have done with a number of projects recently, including time extensions for condominium projects or apartment projects in Kona that were originally zoned before there were any housing, affordable housing conditions at all. So we would be bringing, we would as a matter of the policy of this department, we think that when people have these old zonings, they haven€t used it, they should, and they come in for, 11 they need a time extension, they come in for a time extension,they should have the same standards and requirements that people coming in for zoningtoday have, including, and this is a very important issue for us in the County, including having a portion of their property at least being priced at an affordable level so that people in the community can get some place to live in West Hawai i. So that€s our policyof doing that. However, there is an affordable housing condition in the current ordinance. In 1994, there were these letters written that said that there was no affordable housing requirement because this is an agricultural rezoning. However, the ordinance was re-enacted in 1995 with a condition that they have to comply with affordable housing requirements. And this had an effect of saying that if there were any affordable housing requirements enacted subsequently, that they would have to apply for them. There are conditions that are non-specific like this as to what their requirements are. And the affordable housing policy has changed over time; and, currently, it does require, we are requiring affordable housingfortheseagriculturalone-acretyperezonings.Thecurrentpolicyhasan affordable housing requirement for anything under 5 acres. So we will, our recommendation is to stick to this condition, and we€re quite definite. And on the Administration side that we will, that we are not interested in extending this time condition, which we don€t have to do, without adding affordable housing condition. It€s one or the other as far as we€re concerned. The 300 acres, you can read the MOU it covers the affordable housing requirement for , the beach resort portion, the Waikoloa Beach Resort portion of the project. It does not cover like any affordable housing for Waikoloa Highlands. Finally, again, as a matter of policy, when you have these old zonings that don€t have a fair share requirement, we are adding that in, for the same reasons that I discussed earlier on time extensions. The Applicant is correct to this extent, though, some of the improvements that they made would be credited against fair share at the time when the fair share is due. Under the wording of this ordinance, though, which is the way that the Council has asked that this be worded, we would have to take that to the Council and say, look, this should credit against fair share. It€s not, under the prior ordinances, I, as the Planning Director, could just decide to credit improvements in fair share. What will be credited are things that have regional benefit that go beyond what€s necessary for their project itself. So to the extent that their project itself didn€t need a signal light, for example, but the development of the whole area, the development of the area as a whole needs a signal light, that would be creditable against fair share, or the recreational facilities could potentially be credited against fair share. So that€s a point that is covered under the current wording of Condition I, and that€s the last paragraph on Page 8. And, as I said though, that is subject, at this point, with the way it€s worded, to the Council approval. GALDONES:Ms. Springer? SPRINGER:With regard to the housing discussion, I want to make sure that I€m looking at the right condition of the 1995 ordinance. Is that found on Page 3? I think it€s 12 a new Condition E of the 1995 ordinance as it appears in the Background Report. I just want to make sure that I€m referring to the correct item referenced by the Director. YUEN:Yes. SPRINGER:Thank you. GALDONES:Further questions, Commissioners? Commissioner Graham? GRAHAM:I have a question for the Applicant€s representative. Actually, this is sort of a broad overall kind of question and it actually may be inappropriate to ask at all, but let me try. I€m thinking from reading the letter written January 5 by Mr. Rohr about the reasons for the delay and all like that. And I€m just, like at the top of the second page, this is Exhibit A in the Background Report, Additionally, although the marketconditionsanddemandforresidentialpropertyhaveincreasedwithinrecent years, the focus has been, and continues to be on oceanfront property.‚ And it goes on to say, With no market for a development such as the Highlands Golf Estates and Golf Course project‚ and so forth. And, so, I€m kind of wondering -. I mean we€ve all seen what a rapid rise in real estate we€ve had on this island in the last few years. And, in fact, there is, given this which seems like the most, almost optimistic scenario one could ask forfor development when the owner here, Mr. Rohr writes that there€s no market for this kind of project, what are we really talking about here? I mean, where is this all going to, what are we aiming at? Is this just kind of retaining some vested rights so that only gets developed a different way they can be used, or is this time just a long wait until this kind of project maybe does become in fashion again, or -? I just feel like we got all these specifics we€re dealing with and I have no idea where all this is really going in real life. BAIL:I€ll do the best I can to answer your general question. I mean, first of all, as a threshold this is a request for an extension of time. And I would hope we would never be coming back to you for another extension of time and that things will proceed expeditiously. I think while the housing market has definitely turned around in the last five years, it has taken time to do that; and had you been in the planning stages at the beginning of the last five years, it would have appeared very differently back then. The other uncertainty has been the Hokulia case and what the outcome of that case would be. There has been, I think the one thing everybody can agree about with regard to Hokulia is that there is a lot of disagreement, and that has always been the case. And I think the existence, the filing of the lawsuit itself was a disincentive to move forward with development plans not knowing what the outcome would be in the Third Circuit, or as we€re currently waiting from the Hawai i Supreme Court which has now decided not to hear that case on an expedited basis. So while I think in hindsight, you know, it€s easy to armchair quarterback and look back in the last five years and say, well, it€s a pretty rosy picture for development now, that perspective would not have been the same at the beginning of the last five-year period; and I would hope, given the better outlook for financial investments in real estates at this 13 point in time, that will provide the incentive for this to proceed expeditiously from this point forward. GRAHAM:Well, sort of makes a lot of sense what you€re saying. And the only thing is that it doesn€t seem to address the fact that Mr. Rohr wrote a letter in January 2005 saying there€s no market for development such as this, so I can see why you need the extension. But the fact that today he doesn€t think there€s a market for it, that€s what kind of leads me my general wondering about where is this thing going, that€s all. And I don€t feel like I need to pressure you to defend his comments or doing anything like that. I just want to let you know it kind of sits in the background in one€s mind when one looks at these individual conditions whether this is even related to what€s going to really happen here, that€s all. BAIL:Well, I think, you know, that one of things we had to show when wesubmittedourapplicationforanextensionoftimewasthatwemetthethreshold condition in the permit itself for an extension of time -. GRAHAM:Yes. BALIL:Which had to do with facts being beyond our ability; and that was the reason the language was added to the letter. But I do understand your concern, and that I understand it, and it€s well communicated. GALDONES:Thank you. Further questions or discussions? Seeing none, is there anyone from the public here to testify on this subject matter? Seeing none, Ms. Bail, do you have any comments that you would like to close with or address the statements made by Director Yuen? BAIL:I think there€s just one minor point. I think we have a respectful disagreement about the various issues that are contained in their Recommendation. I would note, though, that, very specifically, with regard to the 95 affordable housing ordinance, that was the time when we were before the Council for our last extension request; and even given that, you know, there was no affordable housing condition imposed on this development at that point in time. That has been the state of affairs for this project. And this would be the first time that this project would be subject to an affordable housing requirement, despite the fact that the 300 acres was intended to complement the Highlands development. GALDONES:Any further questions or discussions? Commissioner Springer? SPRINGER:Based on particularly those elements of agreement between the Applicant and the Director, could we go through any amendments that need to be made to the Recommendation that€s before us? GALDONES:Jeff or Director Yuen? 14 YUEN:I think I could do that. Condition B on Page 5, firstline, five (5) years‚ would become ten (10) years.‚ And the discussion we had earlier, if you want to amend the TIAR, that would be in C. And it would say, the second sentence there, the third sentence where it starts with These improvements,‚ itwould say, These improvements together with other improvements required by the Department of Public Works,‚ and I would say, based on a current Traffic ImpactAnalysis Report,‚ rather than dated December 1989,‚ shall be provided prior to the opening of the golf course or in conjunction with final subdivision approval of the first increment, whichever occurs first, or as otherwise provided,‚ and the rest would remain the same. Then Condition H, on Page 7, the underlined portion, will say, Restrictive covenants in the deeds of all proposed lots within the property shall give notice that the terms of the zoning ordinance prohibit the construction of a second dwelling unit, and condominium property regimes on each 1-acre lot.‚ That would be that change. Then condition, I€m sorry, that was G, not H. GRAHAM:Mr. Yuen, could there be any problem with them not actually beingdevelopedinto1-acrelotsinthefuture,sothatspecificallytyingyourthingto one-acre lot could really prove troublesome even though the intent is clear? YUEN:Well, if they did, if for some reason they wanted to do two-acre lots and wanted to make each two-acre lot a condominium, and they followed the current rules we have regarding condominiums and subdivisions, I would not have a problem with that, because they€re not increasing the density. The problem that, with what, the way people were using condominiums was that they were combining it with the fact that you could put more than one house on a lot and then use the condominium to divide the ownership and, in essence, do a subdivision without doing a subdivision. We€ve plugged that. GRAHAM:Okay. YUEN:We€ve plugged that hole. So that€s, that part is -. So this, saying it that way I think works. Then in H, the first sentence, we would say, Before final subdivision approval, applicant must obtain reclassification of the RA-1a zoned area from the State Land Use Commission to the Rural or Urban district.‚ And then the remainder of the, remainder of the condition will be the same. GALDONES:Ms. Springer? Ms. Bail? BAIL:May I just state for the record, I think that began as a discussion of areas where we had agreement. And I think that is true with regard to the 10-year extension of time, but I just want to make sure the record is clear my objection to the remaining conditions that we just discussed. 15 GALDONES:So noted. Commissioner Springer? SPRINGER:I need some clarification on the lettering. If we could go back to Page 6, please? GALDONES:Jeff? DARROW:I know it gets confusing. Earlier we also had made an amendment on the floor. On the previous Ordinance 95-51 had two G€s, so that has also been added. So if you look Page 6, Condition G, which now has a new G as well, we€re going to delete from the beginning of Condition G all the way through the second G through H. And then beginning with Page 7, where it says, restricted covenants,‚ that€s going to be the new Condition G; and then from there it€ll be re-alphabetized. SPRINGER:Thank you. GALDONES:Further discussions? Hearing no discussions, Commissioners, the PlanningDirectorisrecommendingafavorablerecommendation,fromthePlanning Commission, be forwarded to the County Council, along with the amendments, as stated. Commissioner Alameda? ALAMEDA:Sorry, I had a question. GALDONES:Proceed. ALAMEDA:So how would we vote on a recommendation that€s not, that our Applicant disagrees with? GALDONES:It is the purview of the Commissioners whether to consider the objections raised by the Applicant or not in the motion. ALAMEDA:Cause we could approve something that they disapproved, in essence. GALDONES:That€s correct. It could or could not be -. The Commissioners have the choice to consider the objections to be part of the recommendation and the conditions, or the Commissioners can choose to accept what is being recommended by the Director and not consider the objections raised by the Applicant. ALAMEDA:Okay. Thank you. GALDONES:Hearing no further discussions, the motion is in order. Commissioner Fujikawa? 16 FUJIKAWA:Well, let€s see, I make a motion to accept the application, Waikoloa Development Co., amendment to ConditionB,Changeof Zone Ordinance No. 95-51 (REZ 678), with all the changes of conditions and recommendations, present this to the County Council. GALDONES:Your motion is to give a favorable recommendation to this application, along, as stated in the recommendations with the Amendment to Condition B -. FUJIKAWA:Right. GALDONES:Condition C, Condition G and Condition H, as stated by the Director. FUJIKAWA:AsstatedbytheDirector. GALDONES:DoIhaveasecond? SMITH:Second. GALDONES:IthasbeenmovedbyCommissionerFujikawa,secondedby Commissioner Smith, Waikoloa Development Co., Amendment to Condition B, Change of Zone Ordinance No. 95-51, along with the Background Report and the Recommendations and the conditions, as amended, be given a favorable recommendation and forwarded to the County Council. Discussion? Hearing none, Jeff? DARROW:Thank you, Mr. Chairman. Commissioner Fujikawa? FUJIKAWA:Aye. DARROW:Commissioner Smith? SMITH:Aye. DARROW:Commissioner Alameda? ALAMEDA:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner McCall? MCCALL:Aye. 17 DARROW:Commissioner Springer? SPRINGER:Yes. DARROW:And Mr. Chairman? GALDONES:Aye. DARROW:The motion passes with amendments, seven to zero. GALDONES:Thank you, Jeff. Ms. Bail, you€ll be informed in writing of today€s actions. BAIL:Thank you for your time. The discussion ended at 11:49 a.m. Respectfully submitted, SharonM.Nomura,EastHawaiiSecretary 18