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HomeMy WebLinkAbout2022-07-21 Leeward Exh G (Items 2 Bolton REMAND SPP 16-000188) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JULY 21, 2022 A regularly advertised hearing on the matter of BOLTON, INC. (REMAND SPP 16-000188) was called to order at 2:09 p.m. in the West Hawaii Civic Center, Community Center, Building G, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii, and via Zoom, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Barbara DeFranco, Michael Dela Cruz, Clement"CJ" Kanuha III, and Zaheva Knowles ABSENT AND EXCUSED: Mahina Paishon-Duarte and Faith"Faye" Yates EX-OFFICIO MEMBER: Robyn Matsumoto (Department of Public Works) ALSO IN ATTENDANCE: Malia Kekai, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Jeffrey Darrow (Deputy Planning Director), Maija Jackson (Planning Program Manager), Christian Kay (Planner), Jessica Andrews (Planner), Janice Hata(Zoom host), and Noriko Sauer(Commission Secretary) APPLICANT: BOLTON, INC. (REMAND SPP 16-000188) Hawaii Supreme Court December 2, 2021 Opinion held that the withdrawal of Special Permit SPP No. 16-000188 was improper and remanded Special Permit SPP No. 16-000188 back to the Leeward Planning Commission for further proceedings consistent with its Opinion. The Leeward Planning Commission will hold a hearing to determine standing for a contested case for application for a Special Permit to allow for a base yard/staging yard for equipment, storage of materials, stock piling and crushing of natural materials for commercial use and a security dwelling situated on a 9.23-acre portion of a 23.738-acre property situated within the State Land Use Agricultural District. The property is located at 75-476 Hualalai Road, approximately 700 feet east of its intersection with Queen Ka`ahumanu Highway, Kahului 1st, North Kona, Hawaii, TMK:7-5-017:044. VITOUSEK: The next item on the agenda, the applicant is Bolton, Inc. This is a Remand. So, Hawai`i Supreme Court December 2, 2021, opinion held that the withdrawal of Special Permit SPP No. 16-000188 was improper and remanded Special Permit SPP No. 16-00018 [Brief conversation held regarding audio difficulties.] VITOUSEK: Okay, anyway, so, Supreme Court December 2, 2021, opinion held that the withdrawal of Special Permit SPP No. 16-000188 was improper and remanded Special Permit SPP No. 16-00018 back to Leeward Planning Commission for further proceedings consistent with its opinion. The Leeward Planning Commission will hold a hearing to determine standing 1 EXHIBIT G for a contested case for application for a Special Permit to allow for a base yard/staging yard for equipment, storage of materials, stock piling, crushing of natural materials for commercial use and a security dwelling situated on a 9.23-acre portion of a 23.738-acre property situated within the State Land Use Agricultural District. The property is locatedI think there's still some feedback happening, huh? A little bit. Property's located at 75-476 Hualalai Road, approximately 700 feet east of its intersection with Queen Ka`ahumanu Highway, Kahului 1st, North Kona, Hawaii, TMK:7-5-017, parcel 44. Deputy Planning Director, Jeff Darrow will be representing the Planning Department on this item as well, and Commissioner Knowles may have to make a disclosure. KNOWLES: Well, I know the Bolton `ohana, and so I just wanted to disclose that and did attend Malia Bolton's wedding. VITOUSEK: Yeah, I don't think that qualifies as a conflict of interest. I think a lot of us know them as a small town, so. Yeah, I was there also. Okay. There's no presentation by staff or, is the applicant here? The applicant--or the petitioner is here. So, the applicant is not here. The petitioner's here. We have the petitioner's representative make a presentation? HALL: Maybe we should take public testimony first, if there is anyone. VITOUSEK: Okay. Okay. Public testimony. We'll have Mr. McInnis come up and provide public testimony for this agenda item as well. MCINNIS: Now? VITOUSEK: Yes, please. Okay, and I just want to relay that what was being discussed here is the petition for standing in a contested case and not the permit itself. So, please, go ahead. MCINNIS: I understand what y'all will decide, do we have standing or not. VITOUSEK: Yes. MCINNIS: Okay. But my testimony? That's what I--I'm sorry, I'm, I got confused. HALL: Your testimony's fine as long as it's on the petition. We're just not talking about the permit itself is what he was just clarifying. MCINNIS: I'm sorry, say that again please? HALL: That's the Commission is not deciding on the merits of the application today. So, it's just the petition is what we're accepting testimony on, as of now. So, if that's what you're talking about then, great. If it's pertaining to the petition, then that's what we would like you to speak on today. 2 EXHIBIT G VITOUSEK: Go ahead. Go ahead. We've spent three minutes talking about it. Go ahead. MCINNIS: My name is Mac McInnis regarding Kona Orchard Subdivision here in Kona. I'm here in opposition to the landowner's application. The property owner-- DEFRANCO: I don't mean to interrupt, but this is, we're not going to vote on that permit. We're looking at the petition for standing. MCINNINS: Right. Okay. DEFRANCO: So, are you going to speak about that? VITOUSEK: Let's just have him have his three minutes to speak and we'll proceed. DEFRANCO: Okay. VITOUSEK: Go ahead. Thank you. MCINNIS: I've got two issues. I can walk out on my lanai like about 1,000 other people in that area and look right down on this property and you saw the photos that Carol Fuller had and the dust coming up, and the abuse that's been going on. And that's why the five communities of Hualalai Associates got together and filed suit over this because nothing was happening. And my two issues are what Bolton has been saying he's actually doing or has been doing when he's not doing it, and then his representations with regards to the floodway channel. Is it okay if I continue? VITOUSEK: Yes, please go ahead. Yeah, yeah. MCINNIS: Okay. The property owner under the guise of permits that are not occasion but in an impending development, that means getting ready to happen and making representations that he is doing floodway channelization work has actually been operating a commercial rock crushing operation. For six plus years on the land in question, he has been importing rock, crushing it, and excavating rock on the land in question, hauling it off of his property. Hawaii Revised Statutes and the County Zoning Code provide no allowable uses as for stand-alone uses. I'll skip part of what I was going to say and get to the floodway channelization. Bolton owns several of his permits, and I know you're not hearing permits, but he said he was doing floodway channelization work. And he had been in touch with FEMA. Here is a letter from FEMA addressed to Billy Kenoi, and the date on it is December 21, 2009. I picked up the telephone and I called Washington DC and talked to the FEMA office. I talked to two young ladies there and I gave them the case number and the letter, and I said have you all received any data, anything from anybody in the private sector or the government sector from Kona, Hawaii, 3 EXHIBIT G or the State of Hawaii regarding this floodway channel work? And they said, "no, we have received nothing." This letter is 14 years old. Bolton has been saying he's doing floodway channelization work. He could have built that project out in 13 years. He's not doing any floodway channelization work. I spoke to a young lady, Maggie, on September the 8h, 2017, and asked her that question and then this past July the 6h, I spoke to another young lady named Esmeralda. Asked her the same question, got the same answers. VITOUSEK: Yep. So, we'll just ask you to summarize. MCINNIS: I'm sorry? VITOUSEK: Just ask you to summarize. The three minutes is MCINNIS: I'm through. Thank you very much for your time. VITOUSEK: Thank you, we appreciate it. Mahalo. Okay, that concludes public testimony. Can we have a motion to close public testimony for this Oh, Maij a? JACKSON: I believe there may be additional testimony on Zoom. We had somebody who wanted to join that did not register. Janice, do you have someone on Zoom? HATA: Yes, I have a phone call, but we also have Antu Harvey who is registered to testify for Item number two. VITOUSEK: Okay. So, we'll have Antu Harvey go ahead. Again,please try to limit the testimony to the agenda item at hand HARVEY: Yeah. Yeah. This will be actually a very short question. In fact, I wanted to preface it by saying—can you hear me? I just am double checking. VITOUSEK: We can. HARVEY: Okay. So, first I wanted to thank you very much for providing the equity access by Zoom testimony and being able to do online written testimony submissions. That's really important for us for civic engagement and I really applaud you for doing that, making that provision and hope that you continue it going forward. I also really appreciate that you provide the documents available online. It allows us to make more informed testimony, and I know that requires some effort, but it's really awesome to be able to get better information, more timely information. So, thank you very much for that too, I really appreciate it. 4 EXHIBIT G So, my quick comment on this is I support any offered position for standing in a contested case hearing. This whole matter has not been among the County's nor Bolton's finest actions. There have been many missteps. My concern for this parcel is that it is actively as we speaking [sic] being re-terraformed without transparent oversight. We have special concern because the Wai`aha Stream and riparian area pass through this parcel and does not appear that it's being properly preserved and managed according to the rules and FEMA requirements. I don't know why or if that information just isn't available. Also, there's a permitted warehouse that's being used. It's not for agriculture, but it's a commercial gymnastics operation. This parcel is looking like it's quickly becoming a degraded industrial wasteland. Please rectify the past procedural missteps regarding due process. Please remediate the governance over this parcel to ensure its future contribut it's future contributes to our Kona community in compliance with the KCDP and other regulations and policies. Mahalo. VITOUSEK: Mahalo. And we have another caller? HATA: Yes, we have Tara Rojas who will be providing testimony, and we also have a person calling in. Tara, is that you on the phone? ROJAS: [Inaudible] VITOUSEK: It's on mute. HATA: Yeah, I've asked her to unmute. Hi Tara, can you hear us? VITOUSEK: Okay, and the other testifier by phone? HATA: The phone call might be Tara, so I'm giving her a minute to try and connect. VITOUSEK: Okay, the attorney informs us that you have to press *6 on the phone to unmute. ROJAS: Hello? Can you hear me? Hello? Can you hear me? VITOUSEK: Okay, cool. ROJAS: So, I am on the muted, actually in the Zoom, and on the phone, and I just want to preface, preface—can you hear me? VITOUSEK: Yes. [Audio disruption] ROJAS: Hello? Hello? Hello? UNIDENTIFIED SPEAKER: Hello. 5 EXHIBIT G ROJAS: [Audio disruption] So, which one should I be logged on into? The phone or in Zoom? HATA: The phone, Tara. ROJAS: Yes, the phone. Okay. So, let me go ahead on the phone. Okay, can you hear me okay? VITOUSEK: We hear you. ROJAS: So, there is a lag on the YouTube, what I've been watching from. So, e kala mai. So, if you can hear me now, I just want to preface this that I've been on, you know, since 9:30 and this is the only commission meeting that works differently and I know, I was the first one to speak and, but anyhow, I wanted to speak on five and six, and then during the meeting I also wanted to testify. But I just want to preface this as well, because there seems to be maybe like a phone discrimination because if somebody comes in like a little late, they had registered what they wanted to testify, and they called the number and they're put into a phone waiting room in which nobody responds and attends to. So, I've been trying for the last since, you were supposed to come back from break at 11:15. I've been logged on from the Zoom, I've been on the YouTube desperately trying to write in the chat for somebody to answer to see that we're in the Zoom, and then I called the number and, to try to get in, and was put in a phone VITOUSEK: Ms. Rojas, if this is the agenda item that you want to testify on, this is the time to do it so,please go ahead. ROJAS: I just want to let you know that, you know, please allow, avoid discrimination and meeting accessibility for phone testifiers, you know, as well. Yeah, I even called the Hawaii County Council and the Windward Planning Commission people VITOUSEK: Understood. ROJAS: --to try to get back online. So, okay, so I want to testify regarding number two. I do want to testify on the other items, you know, one, two, three—one, three, and four, but I think it all got discussed. So, going to number two. And I'm just going to say this. If you're hearing that, you know, there is opposition for this application regarding special permitting, or changing of zones, you know, again, please listen to the people speaking up. Please listen to the community. I hear, you know, kind of excitement when you're kind of discussing any future possible development. So, when speaking to the developers, or applicant to change these zoning codes and/or special permits, yet, so it's like you're listening and then these things usually end up at the end when vote is called, it goes through. When is the same attention to people discussing the opposition of any further development? Any zoning changing? Any special use? When are their concerns about the wai, the infrastructure, the actual company possibly backing out if it's not completed and then the land is destructed. When are any of those not going to fall on deaf ears? So, all I keep hearing, all these nine hours, seven-hour, two-hour meetings and this is the first time I have so much issues just to be on. VITOUSEK: Do you have any comments regarding the — 6 EXHIBIT G ROJAS: Yeah, so just that. Just please listen to the VITOUSEK: Contested case hearing. ROJAS: --the, the-- VITOUSEK: The petition for standing ROJAS: --people's voices in the community. VITOUSEK: Okay. ROJAS: Yeah? So, yeah. So, mahalo. VITOUSEK: Will do. Thank you very much for your time. Okay, any further testimonies? If not, is there a motion to close public testimony for agenda item two? DEFRANCO: I move. VITOUSEK: Motion by Vice Chair DeFranco. KNOWLES: Second. VITOUSEK: Second by Commissioner Knowles. All those in favor? ALL: Aye. VITOUSEK: Any opposed? [None.] Okay, it would now be appropriate for the petitioner to, will the petitioner's representative state—come forward please. Thank you. Do you swear or affirm to tell the truth on the matter before the Commission? MATSUKAWA: I do. VITOUSEK: Thank you. Please state your name and the town that you live in. MATSUKAWA: My name is Michael Matsukawa. I live in Captain Cook area, and I'm an attorney here. I represent the petitioner. As Mr. McInnis said, it's a collection of community associations along Hualalai Road. VITOUSEK: Thank you. 7 EXHIBIT G MATSUKAWA: If I might, I know you have a lot of public testimony and background information, but in summary, you know, it's been almost six years since we were here last. And it's been six hours since I came this morning. I just made this little visual aid to show you where we started in blue, in 2010, and this project has morphed over the years and now we're off the board. I know we're not here to speak to the merits, but I thought it'd help if you got a visual picture of the frustration that my client has had because we've been going through this and now we're off the board. The Hawaii Supreme Court really simply told you what you need to do, I think. First, they said, in their opinion, they believe that my client has standing. So, you can disagree, and we'll be back in the appellant procedure again. Or you could agree with the Supreme Court that my client has standing and vote accordingly. The other issue that the Supreme Court noted that you should pay attention to is that petitioner has an interest in arguing that Bolton's construction activity exceeded the conditions of its grading and stock-piling permits and therefore required an additional special permit. That's what we were saying all along. So, we're just asking for the opportunity to bring this to a forum and if the commission decides to give us standing, we'll have to just move to the next procedural step and decide then what do we do. I will have to work that out. I know the applicant is not interested in pursuing the matter, but that would be a separate discussion. VITOUSEK: Mahalo. Having read the Supreme Court opinion, yes, I understand, but would you mind stating for the commissioners why your applicant has standing in this contested case. MATSUKAWA: Oh, basically there are a collection of homeowner associations surrounding the Bolton property where the construction is going on. The associations represent homeowners like Pualani Estates, Kona Orchard, Heights of Hualalai, and they all surround, and like Mr. McInnis said, they were concerned about noise, dust, traffic, generally piece of mind. And the Supreme Court outlined in their opinion a summary of what the petitioner's collective constituents had brought up. VITOUSEK: Okay. To commissioners, at this point we can take a motion on the standing or if HALL: [Inaudible comment to Chair Vitousek.] VITOUSEK: Okay, and it's--Deputy Director Darrow, does the Department agree with the standing in this request for a contested case? DARROW: Thank you, Mr. Chair. This one's a tough one. You know you're, the petitioners who created this organization of a number of associations surround Mr. Bolton's property and obviously they are impacted by this particular endeavor. So, a lot of times what happens is in a special permit the applicant is required to send out notice to surrounding property owners within 500 feet. I don't think anybody, I could be wrong, Mike might be able to correct me, I don't think anybody in the adjoining associations received a copy of that notification. That's my thought. I could be wrong. But that's just one aspect of it. The other aspect that would, that 8 EXHIBIT G would be the area we would be looking at is, is the interest clearly distinguishable from that of the general public? And so, in this particular case, these, this organization made up of a number of associations that surround this particular property, are clearly distinguishable from the general public in the fact that they are impacted by this particular, by the particular actions that are occurring on this property. So, from that standpoint, the Planning Department agrees that they would be allowed standing. We have no objection to that. VITOUSEK: Mahalo. So, getting back to the two options on the table for us now. One is to make a motion on the request for standing. Number two, if Planning Commissioners feel like additional consultation is needed, we can make a motion for executive session to discuss with our attorneys if that's something that you think is appropriate. KNOWLES: I'm comfortable with the motion to address standing. VITOUSEK: Okay. Okay. Okay, cool. Well, anybody can make that motion. KNOWLES: I'll go ahead. I move toI move that the petition be granted based on the record. Petitioner has established the criteria for standing,namely their interest is clearly distinguishable from that of the general public and/or that even though—well, yes, that, sorry. And that's it. KANUHA: I second. VITOUSEK: Okay. A motion and a second. Any discussion? Seeing none, we'll proceed with roll call vote. JACKSON: Commissioner Knowles? KNOWLES: Aye. JACKSON: Commissioner Kanuha? KANUHA: Aye. JACKSON: Commissioner DelaCruz? DELACRUZ: Aye. JACKSON: I'm sorry, Vice Chair, I skipped you. DEFRANCO: It's okay. JACKSON: Vice Chair DeFranco? DEFRANCO: Aye. JACKSON: And Chair Vitousek? 9 EXHIBIT G VITOUSEK: Aye. JACKSON: Okay, motion passes five-zero. VITOUSEK: Thank you. You'll be notified of the decision in writing. The hearing ended at 2:36 p.m. Respectfully submitted, Kim Tanaka Secretary to Boards and Commissions 10 EXHIBIT G