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HomeMy WebLinkAbout2010-04-01 TMOOERS WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT APRIL 1, 2010 GREGORY R. MOOERS (SPP 09-95) A regularly advertised hearing on the application of was called to order at 11:20 a.m. in the County of Hawaii, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with Chairman Rell Woodward presiding. COMMISSIONERS PRESENT: Rell Woodward, Dean Au, Takashi Domingo, Zendo Kern, and Wallace Ishibashi. STAFF PRESENT: Brandon Gonzalez (Deputy Corporation Counsel), BJ Leithead Todd (Planning Director), Daryn Arai (Planning Program Manager), Norman Hayashi, (Planning Program Manager), Phyllis Fujimoto (Staff Planner), Jeff Darrow (Staff Planner), and Maija Cottle (Staff Planner) And approximately 14 people from the public in attendance. APPLICANT: GREGORY R. MOOERS (SPP 09-95) Special Permit to allow the establishment of a country market and occasional special events for non-profit agencies within an existing covered equestrian arena on approximately 2.3 acres of land situated within the State Land Use Agricultural District.The property is located along the north (makai) side of Highway 19 and east of the Waimea Country Club golf course near the 51-mile marker, Waikoekoe, Hamakua, Hawaii, TMK: 4-7-7: portion of 40. WOODWARD: We have one final item on the agenda, Agenda Item No. 6. It’s a request for a Special Permit No. 09-095 for a country market and occasional special events for non-profit agencies within an existing covered equestrian arena on 2.35 acres. Maija. COTTLE: Thank you, Mr. Chairman. I believe that the Commission would need to decide whether to accept the contested case petitioner’s application to withdraw the petition first. WOODWARD: All right. As I assume everybody is aware that we have gotten a letter requesting that the contested case be withdrawn, the petition. So if we could have somebody make a motion to accept that withdrawal of the petition? KERN: I move that the petition be withdrawn. Is that right? GONZALEZ: That we accept the withdrawal of the petition. KERN: I move that we accept the withdrawal of the petition. WOODWARD: All right. DOMINGO: Second. WOODWARD: Okay. Any discussion? Okay, I think a voice vote will do it on this. All in favor aye? COMMISSIONERS: Aye. Any opposed? Seeing none, okay, it’s without objection. All right, Maija. 1 EXHIBIT D COTTLE: Thank you, Mr. Chairman. The next application is a request for a special permit. The applicant is Gregory Mooers. The subject property is located between Honokaa and Waimea. The property is outlined in black on the slide. And it’s just north of the Hawaii Belt Road, which cuts across the middle of the slide here. And you can see Mudlane comes off the Hawaii Belt Road on the left-hand side of the slide. The subject property is zoned Agricultural; as well as almost all the surrounding properties shown here on the slide are also zoned Agricultural. This is an aerial photo. You can see the existing arena structure in the lower portion of the property, as well as the graveled driveway from the arena to the Hawaii Belt Road Highway. The applicant is requesting to allow the operation of a weekly country market to provide local farmers and ranchers a venue to sell their produce and livestock, and local vendors to sell their products to the general public.The landowners would also like to use the arena for occasional special events for nonprofit agencies, community gatherings and social events. The applicant is requesting the special permit because since the arena was constructed in 2008 they’ve received numerous requests from the community to use the facility for uses other than the equestrian and livestock events. The community also recognizes that this facility is a unique asset and opportunity for the community as it provides a large area. The arena is approximately 42,000 square feet in size. It’s covered from the weather and it’s in a relatively remote location with a large area for parking on site. This is a site plan of the property. Again, you can see the highway on the left-hand side of the slide, the graveled driveway, and the existing arena here. This is a photo of the arena taken from the highway, and you can see the graveled driveway on the left side of the slide. This is a view of the highway taken from the graveled driveway. This is a view looking towards the Honokaa direction, with the project driveway on the left-hand side of the slide in this location, and a view of the Waimea, looking towards Waimea. And, again, you can see the driveway on the right-hand side of the slide here. The Department is recommending that the request be approved with conditions. WOODWARD: Thank you, Maija. Do we have any questions from staff? Commissioner Domingo. DOMINGO: How far is the nearest residence to the site? COTTLE: Let me go back to the aerial photo over here. I believe the nearest residence is in this location here, which is I think about 1200 feet from the arena. DOMINGO: Twelve hundred feet, okay. Thank you. WOODWARD: Okay. Any other questions? Okay, seeing none, if we can get the applicant and/or representatives to have a seat, I’ll swear you in and get your testimony. All right. If I can get you to raise your right hand. Do you swear or affirm to tell the truth today before the Windward Planning Commission? MOOERS: I do. B. ANDERSON: I do. J. ANDERSON: Aye. 2 EXHIBIT D MOOERS: Okay, my name is Greg Mooers, I’m the applicant; and, also, a representative of the owners. My mail box is PO Box 1101 in Kamuela, Hawaii. B. ANDERSON: Brian Anderson representing my sons, Cord and Brad, the landowners. My address is 64-5085 Kalaki Street, Kamuela. J. ANDERSON: Joan Anderson representing my sons also, Brad and Cord Anderson; and same address as Brian. Thank you. WOODWARD: All right, very good.Mr. Mooers, did you want to begin? MOOERS; Yeah. First thing I would like to point out when you asked the question about the distance, the distance between the arena and the closest residence is about ¾ of a mile. Okay, I believe staff said 1200 feet, I don’t believe that’s accurate. We have reviewed the background report and recommendations from the Department and have no objections to any of the conditions. As you’re well aware we did have a contested case filed; and we were able to meet with the Intervenor, Mrs. Frederick, and her attorney, Dave Higgins, and discussed the concerns that she had. We have actually submitted to you some proposed conditions that in addition to the12 that the staff had come up with we agree to some additional conditions to try to address some of the concerns that she had. We agree on some. And there are a couple of issues that are pointed out that we disagree on that we’ll leave it to the Commission to address. Primarily what we tried to do is, we don’t want to have a negative impact on our neighbors, so we’re looking at issues like noise, traffic, things that would in some manner negatively impact. In this regard, I think staff pointed out that this is a unique facility. I don’t know how familiar you folks are with Waimea and the physical improvements in Waimea. It is a very rural area. Right now as far as a facility for social events, you are limited to Hawaiian Homes Hall, and there is a town hall. But the town hall which was given to the YMCA by Parker Ranch a couple of years ago is now up for the sale. So there are a limited number of venues. So while this is a working equestrian arena and there are regular equestrian events there, people in the community do recognize this facility as having potential to provide other services. And it started with the Country markets that the Andersons have hosted for a while now, and there have been special events such as the American Cancer Society’s Relay for Life. So it does provide a unique venue that does not currently exist in Waimea. At the same time, again, we don’t want to negatively impact the neighboring properties. The special permit requirements address several criteria related to impacts on the existing property and surrounding properties and the use and character of the neighborhood. And I’ve tried to address all of those issues in the application. The staff reviewed that and they agreed with the conclusions that they were consistent with the criteria. The types of things that we did add to the conditions or had recommended we add to the conditions was to look at the types of impacts that we could avoid by avoiding what we felt were kind of unwarranted fears. So we’ve put in language and said we agree that there will be no concerts or tourism activities. This is not designed to be used for luau shows or musical events, something that would create the huge traffic and a lot of noise. All right, so we’ve suggested that that condition be placed in the conditions. One of the things you need to understand about the uses, since this is a working arena, when the arena is being used for equestrian events, it must be plowed, it’s soft. All right? But for non- equestrian events, like the market or any special events, you’ve get to get in and you’ve got to roll the arena so that the floor is hard. So this is not the type of facility that you can have a 3 EXHIBIT D roping in the afternoon and a party in the evening. All right? And so it’s, the number of events then really is restricted just by the nature of the type of facility that it is. The other issue that was raised is that when the Police Department commented, and you’ll see their comments in their entirety in your background report, is that they were concerned about the issue of special events, because they felt it was ill-defined. And so what we’ve tried to do is define it in a way by saying, you know, okay, no concert, no tourism facilities; and we also said that we understand that we, that certain events may need security. And what we would like to do is to work with the Police Department and come up with a policy as far as the number of people that might be at a particular event, the type of event, and whether or not alcohol would be served or not to determine how many police officers should be hired by security. The Andersons don’t put on these special events. Somebody is going to rent the arena and do the Relay For Life. Well, in the Relay For Life you don’t have a lot of come and go traffic, you don’t have alcohol, you have a limited number. So maybe for that type of event, you know, one or two police officers is fine. For something like a wedding party, there might be more required. But we would like to work with the Police Department to establish that. Because what that does then is for the Andersons is it limits their liability because these police officers, if somebody wants to rent the facility for an event like that, they have to hire the security to make sure that there’s no liability there, either for the community or for themselves and their sons. There were some concerns about the speakers. And when the Andersons initially moved in they had some speakers that are different than they are now and apparently were very loud. And when they had roping at the arena the neighbors could hear the speakers. Those speakers have now been changed. All right? And according to Mrs. Federick when we met she doesn’t hear things any more. But to make sure that that’s not going to be a problem, we’ve agreed to two conditions. One being that the direction of the speakers be towards the south or toward the highway and not towards her residence. The second thing is that we said we would comply with Department of Health noise regulations for the Agricultural District, which I believe is 70 decibels at the boundary. So those are the things that we had agreed to put into the conditions to try to address some of her concerns. And you’ll be hearing in a few minutes from Mr. Higgins that there are other issues that they have, and I will let them speak to that. And we will, obviously, have our comments on any concerns that they have. We’ve tried to be a good neighbor here, we’re trying to provide an opportunity for this. I know there are some concerns about the commercial nature of this. But you have to understand the scope of this. We’re talking about, you know, a limited number of events. I mean even if there were 20 events per year and it was rented at $500 a night, you’re talking about $10,000. That doesn’t even pay the property taxes on this property. So this is not designed as a commercial venture per se. This is not a money maker. The cost of the arena was in excess of $1 million. So that’s not a very good business plan. All right? We’re trying to provide services to the community. The country markets have been successful. People are excited about coming here. The farmer market aspect of it, the produce have always been big sellers in Waimea. The other vendors have an opportunity now to sell items to make money in an economy that is not that great; and we’re happy to support that. That’s all the comments I have at this time. If you have any questions, we’ll be happy to answer them. WOODWARD: Commissioner Domingo? DOMINGO: Thank you, Mr. Chairman. What’s the direction of the wind at that property? MOOERS: It’s, primarily the trades blow east. DOMINGO: So it comes from the Honokaa direction? 4 EXHIBIT D MOOERS: Honokaa through down toward Hawaiian Homes. DOMINGO: Okay. You know of any other place that concerts have been held in the area? MOOERS: Concerts, I mean, there are small concerts held at the schools, you know, at HPA or Parker School; but no outside concerts. DOMINGO: I see. MOOERS: Oh, I take that back. Parker Ranch arena at the rodeo grounds, they have concerts there. DOMINGO: I see. And I understand that concerts were also held previously at Waikii? MOOERS: That’s true. DOMINGO: Yeah, that’s the only place. And how far is Waikii from Kamuela? MOOERS: Mr. Higgins, you live there, 15, 17 miles? HIGGINS: Twelve miles. MOOERS: Twelve miles, there you go. DOMINGO: Okay. And the concerts held at the Ranch arena, what’s, would you have any description of how large it usually is? MOOERS: Ron, you’d probably answer that. But they use it like in conjunction with the Fourth of July roping, things like that. I mean I don’t know how many people -. I mean we used to have the Waimea, Waimea Song Fest, we had the Hawaiian Music Festival there back in the late seventies and there were, you know, 2000 to 3000 people there. DOMINGO: I see. Have you had Relay For Life there already? Not yet? B. ANDERSON: No. This month we’ve got Outdoor Circle coming in April for two days. Outdoor Circle in April. Relay For Life signed a contract for beginning of October; and that’s why we had to put a stipulation because it’s -. They like the location obviously to be out of the wind and the rain. They’ve been in the park in the last couple of years. The lights on at night bothered the neighbors at the Park. Ours, because it’s a covered facility, the lights won’t have any impact late at night, and then they’re out of weather. So they’ll be coming in October. DOMINGO: I see. Thank you. WOODWARD: Any other questions? B. ANDERSON: Subject to the Commission’s approval on the special permit. I won’t take it for granted that they’re coming in. This is all subject to, of course, the special permit. DOMINGO: So the conditions as stipulated in this recommendation by the Planning Director is agreeable with you folks? MOOERS: Yeah, we didn’t have any problems with the staff’s recommendations. DOMINGO: No problem, as given to us, circulated to us? 5 EXHIBIT D MOOERS: Yes. DOMINGO: Okay. LEITHEAD TODD: Commissioners, I do want to bring to your attention, there is that additional handout that you have with additional special permit conditions over and above what’s in your, the staff’s recommendations -. WOODWARD: Right. LEITHEAD TODD: And these are the ones that have the limitation on the number of special events. There is that exception for the Relay Of Life and the additional condition on no concerts or tourism related activities, the policy on security and traffic control, those are, on the bottom it has 062061 number is a scanned document number; and it was handed out to you with a paperclip. And those are the additional conditions that have been agreed to by the applicant after their meeting with Mr. Higgins and his client. And so you should have that in your handouts; and those need to be added to the conditions as recommended by the staff. WOODWARD: Right. I had a couple of questions in that regard. One is it says no exterior speakers directed between blank degrees and blank degrees. MOOERS: Yeah, I’m not real good with that area. I think Mr. Higgins has some numbers to that. WOODWARD: Right. MOOERS: I didn’t know if it’d be better to use degrees or just say point of south of the highway. WOODWARD: Well, Mr. Higgins has put in 235 degrees and 045 degrees. MOOERS: Right, right. WOODWARD: Okay. MOOERS: And which I understand to be towards the highway. WOODWARD: Okay. All right. Well, that’s -. MOOERS: Our goal is that those speakers shouldn’t be heard off the property at all, and particularly with the other sound constraint, which is the decibel level. We’re hoping that between the two of those that noise won’t be an issue. WOODWARD: Okay. And the other question that Mr. Gonzalez, Corporation Counsel, had was what is your definition of a concert and does a performance or benefit performance count as a concert? MOOERS: Yeah, we didn’t get into a definition. But probably, you know, we could. I guess in my mind a concert would be something where, you know, the music is a primary purpose for being there. So, for example, if you come to a roping which is a permitted use and there’s, you know, three people playing acoustic guitars that wouldn’t be considered a concert. But if you were, you know, advertising for a reggae concert that clearly would be. What the line is in between, I don’t know. I don’t know if there’s a definition of concert in the Zoning Code. 6 EXHIBIT D WOODWARD: Okay. Well, it sounds like you’ve got a pretty good idea to me. Okay, do we have any other questions? Commissioner Au. AU: I want to ask you a question on the signage you have here. We have this email about a sign on the last page of that, the handouts we just got a little while ago, or this morning. It shows, this thing was dated March 30, 2010 which was yesterday. And it says you have this sign, and I’ve seen that sign. So maybe if you could just talk about it. Is that sign still up? I’m assuming it still is. This was yesterday, the day before yesterday, Kamuela Country Market. It looks like it’s on a trailer. Could you just comment on that? B. ANDERSON: Yeah. I parked the trailer on Mr. Botelho’s property Monday afternoon and we removed it Sunday afternoon. That was removed Sunday at 4 o’clock. As soon as the market is over on Sunday, we remove the trailer. Mr. Botelho is the landowner there. I mean, we just park it there a couple days before the event and take it down when the event is over on Sunday afternoon. AU: It seems to me that the community, some of the community, is against this in different ways. I would like to hear Mr. Higgins next and, you know, kind of hear his concerns. But this does concern me. WOODWARD: All right. Yeah, we do have two people signed up from the public to testify. Are there any more questions for the applicant? Okay, thank you very much. You folks may be seated. And then we have David Higgins and Joanne Frederick signed up to testify. All right, if I could swear you in. If you’ll raise your right hand. Do you swear or affirm to tell the truth today before the Windward Planning Commission? HIGGINS: I do. FREDERICK: I do. WOODWARD: Very good. Okay, and whoever would like to start, if you’ll give us your name and address, and then you may begin. HIGGINS: My name is David Higgins. I’m Box 6805. Kamuela is my personal address. I’m with Alston, Hunt, Floyd & Ing in Waimea, and I’m representing Joanne Frederick. WOODWARD: Okay. Would you like to begin your testimony? HIGGINS: Yes, thank you. I want to start by saying that Ms. Frederick is not opposed to a great deal of what has been suggested as the purpose of this. She’s sympathetic to the farmers market concept. She’s sympathetic to fundraising special events. And I think the noise issues have been addressed. We’ve had some good meetings with Mr. Mooers and his clients and we made progress. But there’s still some fundamental issues here that I think are extremely important, not just with respect to the impact on Ms. Frederick and her immediate neighbors, but also the potential that this sets a rather troubling precedent. The application itself is extremely well drafted. But with respect to Mr. Mooers who did a great job, I think it’s fundamentally misleading. There’s an emphasis on, let’s start with the farmers market proposal. There’s an emphasis on doing something for local farmers or ranchers to sell their produce or sell their livestock. We do not have a problem with that. We applaud that. That’s consistent with agricultural zoning. The problem comes in expanding it so that local residents can sell their products. If you look at the track record for what has happened at these country markets, I would respectfully suggest 7 EXHIBIT D that what we have going on and have had going on both before and after the cease and desist order that was issued last summer is a flea market, or a swap market, or basically Craig’s List in a building. This is the opportunity for people to sell t-shirts made in China, CDs, trinkets, all kinds of stuff. Now the Andersons have told me that they’re still working on how to screen the people that come in to sell their products. But how do you do that? If you start allowing all manner of products, other than produce and agriculturally related products, tell me what is the difference between this and Kmart? The building is almost the same. It’s a huge steel building. It’s a massive building, 42,000 square feet. If you put a floor in it and you put walls on it, it looks like Kmart. When you go to Kmart you have parking, off-street parking, on the property for hundreds of cars. He has got parking for 300 cars, based on his own website. He’s advertising parking for 300 cars. He is advertising human capacity in this building of between 800 and 1,000. If you look at his literature he says 800 but if you look in his sheaf of contracts and insurance waivers, you’re okay until you see 1,000. Then you have a problem if you’re renting the arena. The question is whether or not, and it is just different than Kmart, I’ll grant you, in that it will only be open on the weekends. But in terms of what’s happened, what’s happening in that arena, what has been happening historically and what they want to do, it really is a large retail commercial operation. At least in Kmart the people that are selling are employees of the owner of the building and they’re under some control. Here you’re going to have local residents who are not employees of the owners of the building, who are coming in on a concession-type basis and selling whatever they want. There’s going to be thousands of people in and out of that building, probably the numbers wouldn’t be much different than what would happen at Kmart on a weekend if you had a 42,000-square foot Kmart building. And this is in Ag zoned land; and not only in Ag zoned land it’s the most remote part of this part of the island, if you look at it compared to where the urban cores are. I think, I distributed an aerial map which you should all have in your packets. It shows where this particular property is in relation to Honokaa and Waimea. It looks like this; and there’s a circle on it. And if you look at Waimea on the left, Honokaa on the right, and Kukuihaele above it, it’s sort of equal distance between those clusters. Reading the past testimony of the Commissioners and applicants here, there was an application in January I believe of this year for a healing center of some kind in Kukuihaele, and there was a lot discussion about whether this was an appropriate place for it. And the testimony focused on how far it was from the “urban core of Honokaa.” If you really are concerned about citing commercial activities, especially large visitor traffic commercial activities in appropriate places, this would be the last place you’d want to put it. If it were right next to Honokaa, maybe you could argue that it was consistent with your philosophy of having these things near the urban core. But I would submit that this is not an appropriate and reasonable place for this particular activity. Second point I wanted to make is that the landowner’s track record is not encouraging. If you put language in this permit that is loose, we fear that there will be difficulties with enforcement. The landowner was cited by the Department of Transportation for putting in an access driveway without prior permission. A liquor inspector is the one that blew the whistle on the reggae concert. You have in your applicant’s packet a photograph advertising a reggae concert last summer. That reggae concert was not held. Why not? Because one of the liquor inspectors said, wait a minute, what’s going on, and they were told not to hold a reggae concert. There was a cease and desist order from the prior planning director to stop doing this. Had they stopped? No, they’re continuing to do it. It has been going on now on the weekends, and they’re booking special events. You heard Mr. Anderson say that there were bookings as far as next October. If you look at their website, this is a well-polished large website advertising all manner of commercial activities in the special events categories, parties and weddings. In their application they make the point that this is primarily for 501(C)(3) charities and other charities; and we had a long discussion about this in my office. There are ways, if that’s what they really want to do, there are ways to restrict that use; and we would support that.I spent 20 years as the executive 8 EXHIBIT D director of a charity. I’m very sympathetic and my client is very sympathetic, she’s a nurse, to charitable activities. But private weddings are not charitable activities. And parties for, you know, someone’s birthday are not charitable activities. Is this commercial? You bet your life it’s commercial. You look at their website, they pay $100 fee just to get on the calendar, a $400 minimum fee for the rental, $1 per person for tables and chairs. If it’s 800 people, that’s another $800. (The Department of Public Works interrupted the meeting over the public address system stating that there will shortly be a testing of the emergency notification system.). HIGGINS: That was actually good for me. I needed to take a breath. That was my second point, their track record suggests that if the Commissioners are inclined to grant a permit that the conditions be carefully drafted. Lastly, I’d like to suggest that we look at the application in terms of the Commission’s Rule 6.6 and 6-3(b)(5). Under 6.6, this can be granted, these permits can be granted if the use is unusual and reasonable. And I would suggest that what is reasonable for one Ag area isn’t necessarily reasonable for all Ag areas; and this is the point I was making about how far this is from the Urban core. It’s really way out in the middle of Ag land. Under the criteria of 6-3(b)(5): The first one is such use shall not be contrary to the objectives sought to be accomplished by the Land Use Law and the Regulations - My understanding is that we’re categorizing properties to segregate the Industrial from the Residential, and the Commercial from the Agriculture, and so forth. And, again, I don’t see that this particular exception, if it can be expanded so its broad sale of commercial products and its special events are not restricted to charities, I don’t see it as consistent with the land use law and the regulations. The desired use shall not adversely affect surrounding properties - I would commend the applicants. I think with respect to their sensitivity to sound, they’ve done a good job addressing that issue. (Testing of sirens of emergency system was made at this time.) HIGGINS: C, it shall not unreasonably burden public agencies – And my comment here is just that there is a question, I put this in an email that I sent yesterday and I apologize for not picking this up earlier -. But the Fire Department, and I spoke to the Fire Department yesterday, their letter of recommendation or conditions says that there needs to be compliance with NFPA 1142, in other words there needs to be adequate water. And if you look at the Department of Water Supply comment on this application, the nearest fire hydrant is a mile away. I don’t know whether or not the Andersons have sufficient water catchment and so forth for the Fire Department, but it’s an issue that I think needs to be addressed.We’re talking about 1,000 people and 300 cars in a rural area; and the Fire Department is going to have to respond if there’s an emergency there, and there needs to be water. And then police, again, I apologize for not picking this up earlier. You know, we are reasonably comfortable with the concept of having the Cancer Society function there at which wine is served; and that requires a Liquor License. That doesn’t really bother us but it’s a slippery slope. When you start allowing people to serve liquor for one event you can’t say, well, you can serve it for one event and not another event. I think you either have to confine the special events rigidly to 501(C)(3)organizations or as we have suggested in our underlined language, and I assume all the Commissioners have that set of permit conditions with the underlined language. This is specifically designed to address the Anderson’s comment, that they don’t want to be confined to 9 EXHIBIT D charitable causes that are operated by 501(c)(3).I worked on this quite a bit. I talked to the Hawaii Community Foundation. I asked if they would be willing to give the stamp of approval to private charitable causes, a family has a child that has to have surgery or needs a bone marrow transplant, they’re not a 501(c)(3), they want to raise money. Do we want to allow that to happen? You bet we do. We don’t have a problem with that. But it’s a simple thing to have an existing 501(c)(3) organization say this is a valid charitable cause. I don’t think a reputable 501(c)(3) is going to tell you that a wedding or a private birthday party is a charitable cause. So we could live with that. And under those circumstances we would not object to liquor being sold. But if the Commissioners are not inclined to narrow the special event candidates, then we would ask that you follow the Police Department’s recommendation and say no liquor. Moving on, No. D - Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established, that hasn’t been met. There’s nothing that’s changed that I’m aware of that would make it reasonable for this use in this location since these districts were established. The land upon which the proposed use is sought is unsuited for the uses permitted within the district - This is just flat wrong. This land is very well suited for grazing. There’s grazing going on all around it. And the actual arena itself, it’s a beautiful facility well suited for ropings, and team sorting, and team penning and equestrian events. It’s not that they don’t have use for their land. They do have use for their land within the confines of the zoning. F, the proposed use will not substantially alter or change the essential character of the land and the present use - I mean that’s the one that’s the real tough one. This is going to change the character of that property dramatically. And the last, it will not be contrary to the General Plan and official Community Development Plan and other documents such as Design Plans - the Commission, I’m sure, is more familiar with those than I. I did have a long conversation, two conversations with Christian Kay about the development plan that he’s working on. This is my sense, I’m not quoting Mr. Kay, but it is my sense that the development plan for this area will be consistent with the other development plans and call for segregation of uses and be sensitive to this idea of distance from urban cores. I, it is my sense that that will be a consistent principle in the new development plan. Again, I think this particular area where it’s located so far from the urban core is not reasonable for this use. Thank you. WOODWARD: All right, thank you. Do we have any questions for Mr. Higgins? GONZALEZ: I do. WOODWARD: Oh, Mr. Gonzalez, our Corporation Counsel, had a question for you. GONZALEZ: Okay, the Commission has received the proposed conditions from both the applicant and your client. And so what I’m trying to get at is, so the Commission can know what are the parties’s understanding of the term “concert” and “special events”. Because it’s not defined anywhere. And so I think it’s important for the Commission to know what the parties’s understandings are of that term. Cause it’s listed in Condition No. 6. Right, no concerts? HIGGINS: The language that the applicant has proposed, the last sentence of Condition 6 reads, “No concerts or tourism related activities are permitted.” I think we could, and we agree with that. We have suggested adding “weddings, private parties.” So ours, if you look at the document that has the numbers on the left lower corner, 738823, it reads, “No concerts, weddings, private parties, or tourism related activities are permitted.” I think with respect to concerts, I would be happy to try to work with Mr. Mooers on something that better defines it. I 10 EXHIBIT D would agree with his characterization that if he’s going to have three or four, Brother Smitty is going to play at a team roping, we don’t have a problem with that. It’s the reggae concert, it’s the “Beach Boys,” that kind of stuff that we don’t want to see here. GONZALEZ: Well, is a concert a performance by an artist as a fund-raiser to benefit someone? HIGGINS: Good point. It, let me put it this way. If you were inclined, the Commissioners were inclined to accept the limitations that are on what local charities are that are in our Condition No. 6, the underlined language which confines it to a) 501(c)(3) organizations, b) Hawaii nonprofits, or c) individuals or families in crisis or experiencing medical or financial hardships and identified as such by a Hawaii charity exempt under 501(c)(3), if you were to accept that, and we’re talking about a reasonable number of special events per year (and we’ve proposed four, they proposed 20, there was some willingness to discuss a smaller number on their part during our meetings, if it were a number that were closer to the lower end of that) and an occasional concert genuinely to benefit a nonprofit agency, we have some aloha for that concept and we would go with that. GONZALEZ: Well, see, so that’s my point, is you are creating an end around against no concerts. But when I asked that question if a concert includes some kind of musical performance mixed in with a benefit fund-raiser, Mr. Mooers shook his head, no. Am I correct, Mr. Mooers? That’s not what you envision concert to include, right? MOOERS: Correct. Yeah, concert to my thinking is where that is “the” event,” that the musical -. HAYASHI: Will you use the microphone, please. GONZALEZ: Yes. MOOERS: I believe my statement was that if the concert was “the event,” if the music was “the event”, as opposed to people playing after a dinner or playing in conjunction with a roping, I would not consider that or characterize that as a concert. WOODWARD: Thank you. Ms. Frederick, were you going to make any statement? FREDERICK: Forgive me for not being comfortable with public speaking. WOODWARD: That’s fine. I was just asking the question. If you want to have Mr. Higgins be the representative, that’s fine. FREDERICK: Okay. I would just say that, you know, I’ve just, so you know a little bit about me -. I mean, I’ve just been in the area for five years. I came from Oahu to get away from all the crowds over there and to be in the country over here. I really love the Hamakua area. And I feel that there has been some deception, perhaps not total disclosure of events that are being held or that would like to be held at the arena. I do feel, speaking on my own, that as Mr. Higgins said I love the idea of a country market. I live right there, it’s very convenient for me. But when I was there recently for one of the markets I saw a box from Lowe’s, you know, like a light or lamp from Lowe’s with the bar code still on it, still in the box. And that as Mr. Higgins said is, you know, it really bothers me. I think that is not appropriate for this area. I do see that as not in keeping with the wording on the permit request for things to benefit local farmers, ranchers; and I also support local crafts people. But DVDs, cosmetics, books, you know, clothing made elsewhere, I don’t believe that that is in keeping with the area. And I also have the concerns about the overall vagueness of the wording of the request. You know, how do you define what is special and occasional? And, also, I believe, I obviously don’t have the wording of the 6.6, 6-6 11 EXHIBIT D rules memorized. But a principle seems to me that you need to be able to determine the effect of the event on the community or the surrounding area. And so if things are not specified, how can you determine what that impact is? So my concerns definitely have to do with the vagueness, the open-endedness of it, and the fact that other things are being done that are clearly more commercial in nature. So I do hope that you will consider that. WOODWARD: Okay, thank you. I have a question, well, really a comment more than anything else. It seems to me that with regards to most of the things that were important to you such as the noise level, etc., that you’ve had reasonable success in dealing with the applicant. The other thing, and I’ll throw this out to you because this is important - if we get too carried away with trying to make this a murky issue and we end up with a split vote here, that is three-four, three in favor and two against, a decision is not reached. If a decision is not reached, there is defacto granting of this special permit with no conditions. Okay? So that’s the potential problem. This is from 6-6 of Planning Commission Rules and Regulations, is that we do not, if we take a vote then we can’t continue the issue. Once we take a vote, if we’ve not reached a decision, then that special permit is admitted as a defacto event with no conditions, there will be no conditions at all with the special permit. Okay? So I just wanted to make that clear to you, and to my fellow Commissioners, that that’s the situation that we’re in as far as trying to come up with a reasonable set of conditions that we can agree upon. Because, otherwise, if we have no agreement this special permit is deemed approved with no conditions. So, be aware of that. GONZALEZ: If there is a vote taken. WOODWARD: That’s right, if there is a vote taken. Okay, do we have questions for Mr. Higgins or Ms. Frederick? All right, thank you, folks, if you’ll be seated. Mr. Mooers, did you want to respond to any of the testimony? MOOERS: Thank you, Mr. Chairman. Actually, there’s several things I’d like to say. The first thing is, I guess I’m a little bit upset with the characterization that the application was misleading, or Ms. Frederick said deception, or was deceiving. I’ve been doing this for over 20 years and I could not be in business if I deceived you. I would have been out of business a long time ago. I’m sorry if Ms. Frederick and her attorney didn’t feel I was being clear, but I’m happy to go through my application by page by page -- In fact, which I say specifically one of the purposes is for local vendors to sell products to the general public, didn’t claim that everything in the farmers market was going to be agriculture. It’s not.That’s why we don’t call it a farmers market, we call it a country market. There are people who sell t-shirts, there are people who sell nail polish, there are people that sell soap. And I don’t believe, I strongly do not believe that the impact of myself sitting at a table selling soap is any more impactful on the neighbors than if I were selling turnips. I don’t generate any more traffic, I don’t generate any more noise. Now clearly the difference is that the applicant/her attorney don’t like the idea of these things being sold; and we accept the fact that they don’t like that. But we also submitted two dozen letters of people who did like the ability to be able to sell t-shirts and other items to make money. Mr. Higgins characterized the building as being just like Wal-Mart (sic). Well, it’s simply not true. We’re talking about having events right now about one Sunday a month. We’re asking in the permit for once per week. That building is used actively in the agricultural uses on that property. And I believe Mr. Anderson has no problem demonstrating the fact that he runs cattle and has a cattle operation on that property. The use of this two-plus acres of an arena, a working equestrian arena, on occasion for other events does not destroy the character of the area. It does not take that use out of agricultural production. So the fact that we’re located somewhere between Waimea and Hamakua, what makes it unique is the fact that the arena exists, that a million dollar investment was made and that arena is there. This does not set a precedent for 12 EXHIBIT D other people in that area to try to build more arenas, because if they do they’re simply not going to make the money to recover their investment. Every special permit is reviewed on its individual characteristics. And the things that are nice about special permits is it allows certain uses in an agricultural area. It’s important to know why I believe this request complies with your rules, but I have done that already. Couple of comments, Fire Department if you’ll look at my response to the Fire Department records, it says that we will comply fully with any requirement of the Fire Code. So the catchment system must be sized and must be established in a manner that will meet with the requirements of the Fire Department. There’s a condition that says we will comply with all State, County and Federal regulations. That includes Liquor, Fire, Police, etc. I do take issue with the comment from the Police Department. When I read the Police Department’s comments, and in my discussion with them, what the statement fully says is that the type of special event is too broad; and the restrictions to the type of activity, nonuse or sale of alcohol, I take that to mean not going to use it or you are going to use it.. Says should be specified. Okay? So what the Police Department seems to me saying to me is we need more information about the events. It does not mean to me, I do not read this comment as saying we the Police Department are telling you no alcohol. All right? So I guess I disagree with that characterization. This is why we put, suggested the condition that we work with the Police Department to establish the type of event, the types of things that would occur at the event and the type of security that we should have to provide or that the, whoever is putting the event on would have to provide in order to address their concerns. So we’re agreeing with the Police Department’s statement that there needs to be more specificity; and that’s what we’re trying to do with not only the 12 conditions that the County proposed but the additional conditions that we propose. Other than that, I think that addresses the concerns that I had. But I hope that you would not think that I’m trying to write a deceptive application, because frankly the amount of money I would make off this application would not amount to much if this ended my career if I sat here and distorted the truth to you, or to any other agency, or to any regulator. I would not do that. WOODWARD: All right, thank you. Do we have any questions for Mr. Mooers? B. ANDERSON: Can I add one thing on this, commentS, please? WOODWARD: Sure. B. ANDERSON: I’m sorry. WOODWARD: Sure, go ahead. B. ANDERSON: Alcohol is a touchy subject. The condition that we work with the Planning Department on was to put a limit of 10 o’clock on all events. And the sole purpose of the 10 o’clock was to prevent any, we felt anything beyond 10 o’clock becomes different, it’s not social drinking. It makes it more serious. And that’s why, you know, they talk about our past. We’ve only had, I think, two functions there – a baby luau and a graduation party, Michelle Miranda and Jimmy Kee. But, you know, beer and -, I think was served at those parties. But we cut it off at 10 o’clock so nobody gets drunk, everyone goes home. And in the future there will be security. That’s how we tried to address it. WOODWARD: Okay, thank you. Mr. Gonzales. 13 EXHIBIT D GONZALES: Mr. Mooers, do you and your applicant understand that if you are going to be engaging in the sale of alcohol and liquors it’s not the Planning Commission that gives you guys the licenses for that? MOOERS: We understand that. We will not be providing alcohol. All right? If people put on an event, it would be up to them; and that’s one of the things if you look at the conditions that I proposed there is a standard condition that the, 8, that the Commission puts in which says “The applicant shall comply with all applicable County, State and Federal laws, rules, regulations and requirements. Because of the, Ms. Frederick’s concern about alcohol, I did put in an additional language, an additional sentence, which says, “Alcohol use shall be regulated by and complied with all State and county regulations and permit requirements.” We are not seeking a liquor license to serve alcohol at these events. Again, the arena for these events would be, essentially, leased to people that would be putting on events. Whether it’s American Cancer society, whether it’s Mr. Domingo and his grandson’s wedding, or whatever, that person, that group would then be responsible for complying with all regulations. The Andersons, Brad and Cord, are not going to be selling alcohol. They do not have a liquor license, and are not applying for a liquor license. WOODWARD: All right, any further questions? Madam Director? LEITHEAD TODD: I did want to clarify something that, you know, we did meet with the applicant and in part, and I’ve done this with another farmers market on the island and bazaar that’s held out in Puna , that we have tried to, try and accommodate the fact that we have a down economy and that, you know, a number of people are relying on various venues. And we do this in other violations, too, where, you know, when we find people in violation of the Code we issue them notices, we give them an opportunity to correct the violation by becoming legal. And that’s whether it’s a use or whether it’s a building, we frequently try to work with people rather than just being punitive. In the case of this particular country market and the one that we have in Puna, because of the concern that we’ve had from vendors who are relying on the income to support themselves and their families, we decided, or rather I decided, to be a little bit more flexible and allow the continued use, provided that the property owner submitted an application for a special permit to try and make the activity legal. And it’s the same thing that we’re doing with another one. So I just wanted to clarify that, you know, they did consult with us and we did agree to allow them to continue on that limited basis, just be -. And it’s particularly because it’s kind of a unique time in our economy and I was very concerned about impacting the farms. Some farmers had contacted us, and they felt like they needed as many outlets, and there were also vendors. And so we were just trying to accommodate not so much the property owner but the people who were using the facility. And this has been coming to us from different parts of the island, because what we’re finding is the problem is not just unique to the Anderson’s property. It’s that throughout the island people have been looking for venues where they can host occasional events such as farmers markets or bazaars. And the places where you can do this are somewhat limited, and so they’re gravitating towards places that have established buildings and facilities or adequate space. And what we’re just trying to do in this case and working with the Andersons is to try and make the use legal, and then also to try and mitigate impacts. So I just wanted to let you know that Mr. Mooers’s letter is consistent with the meeting that we had. WOODWARD: Thank you very much. Do we have any other questions? Okay, thank you very much, folks. You may be seated. Would anybody like to make a motion? Commissioner Domingo. KERN: I have more of a -. I have a question. 14 EXHIBIT D WOODWARD: Yes. KERN: Madam Director, the conditions that Mr. Mooers provided with the changes, do those look acceptable to you or -? LEITHEAD TODD: Yes, I think they’re acceptable. And I think that despite the fact that there’s some concern over whether there are some lack of clarity on the word “concert” I think that based on the discussion here the Department would view that as where it was a concert where the event was basically some type of a musical concert as opposed to being some music in addition. Like Relay For Life has music. They have different groups that come and play, but the event is not principally to hold a concert where, you know, Sons of Hawaii comes and play, gosh, I’m aging myself there, where they come and play. But it’s to support the primary activity, which is the fund-raiser for Relay For Life. So I think that we would interpret it that way in the event that there was a complaint that came to our office that the facility was being used. And in another one where we had complaints like that, we’ve shut down those activities in another part of the island where we’ve had that type of complaint come in. KERN: Thank you. I, I’ll let Taka here go on in just a second. But I’m not sure if this is the right time to say this or not, but I’m inclined to support it based on the, not necessarily based on, what, for the Andersons, but based on, as the Director had mentioned, it’s the small businesses. It’s the hundreds of potential vendors that go in there that drive around the island trying to sell something and show up at 4 o’clock in the morning and wait in line to get into these places to try and make ends meet, cause it’s tough times right now. WOODWARD: Commissioner Kern, if I might ask if you could make a motion, then that discussion would be better made at that point. KERN: Why don’t I just do that then? WOODWARD: Why don’t you do that. KERN: All right. Regarding Special Permit Application (SPP 09-95) to allow the establishment of a country market and occasional special events for non-profit agencies within an existing covered equestrian arena on approximately 2.3 acres of land located TMK: 4-7-7: portion of 40, with the conditions as provided by Mr. Mooers, I move that we approve it. WOODWARD: Do we have a second? DOMINGO: Second. WOODWARD: Okay. Now, we’re open for discussion. Commissioner Kern. COTTLE: Mr. Chairman? WOODWARD: Yes. COTTLE: Can I just ask for clarification on Condition 9? KERN: Yes. COTTLE: Can we add some headings in the blank areas KERN: If it’s not an objection to anybody else, I’d say we use the coordinates based off on Mr. Higgins’s -. 15 EXHIBIT D WOODWARD: The 235 and 045? KERN: Yes, 235 degrees and 045 degrees. COTTLE: Thank you. WOODWARD: Okay. Is that acceptable to Commissioner Domingo? DOMINGO: You know, before I respond into it, and I sense that probably one of the primary issues concerning this application aside from this being used as a farmers market is that of noise. And, you know, when I consider the fact that the trade winds blow from Honokaa towards the Kohala Mountains farther west, north-west, and it blows away from the residence where Ms. Frederick lives, and that the residence in itself is about 1200 feet away, probably quarter mile away from the facility, I don’t think this should be at all an issue. Because, you know, the applicant also notes, I note here that the noise level during any country market or special event shall comply with the State Department of Health. So there is that regulation with regards to the noise. WOODWARD: Okay. Are you accepting the, what they’re doing is putting in the coordinates as far as where the speakers will be, will not be directed. Is that acceptable to you-? KERN: Were you commenting that there shall be no definite -? DOMINGO: Well, I will yield to the judgment of those who use the facility at that particular time. And should there be any noise level that’s beyond acceptable limit surely there will be stop to it. WOODWARD: Right. Well, that’s basically what this is saying. So you’re, cause you seconded the motion, you’re accepting the conditions that Mr. Mooers has stated with the coordinates put in to Condition 9, is that correct? DOMINGO: If it’s same same I approve. WOODWARD: Right, that’s what that is. Okay, anybody else have any objection to that now? Okay. Now it’s open for discussion. Commissioner Kern. KERN: All right, thank you. Yeah, it’s really tough times right now and I think it is about this small business people that maybe they make their money off of growing eggplants in their yard or maybe they get a really good deal on shirts and know how to make a profit off of those so they can feed their family. And, to me, that’s the primary reason of doing this. I drive by, I’ve driven by that equestrian center many a times; and in a sense it’s kind of far enough out there, the road is really straight, and I personally don’t see it creating a really negative impact there. Other than people want to go there, they’re going to drive there, and they’re going shop there, and they’re going to experience it. And it should be a positive thing. As in many situations there’s never a, usually not a win-win all the way around. It’s some compromise; and, hopefully, both parties feel that they’ve won in a certain way. But to me it’s about the small guys winning, it’s about the community winning; and, you know, something like this is a good thing. So that’s my opinion. Thank you. WOODWARD: All right, thank you. Any further comments? HIGGINS: Point of information. 16 EXHIBIT D NOMURA: Microphone, please. HIGGINS: May I ask for that? WOODWARD: Sure. HIGGINS: I think that what you’re looking at is the, my understanding is you’re looking at the staff’s recommendations with Mr. Mooers’s modifications. WOODWARD: Correct. HIGGINS: And on one thing, I don’t know which number it is -. WOODWARD: Number 9. HIGGINS: Well, there’s one prior to that where he has suggested a cap of 20 special events annually, and we had suggested four. And I trust it’s acceptable for me to mention our negotiations on that? WOODWARD: Yes. MOOERS: Well, I -. WOODWARD: Oh, MOOERS: I mean, you can mention, yeah, we never, I guess we thought we had an agreement but we never did, I guess, cause you came back with zero or blank. HIGGINS: Well, it was our intention that if the Commission was inclined to grant the permit they would accept our mutual understanding that there would be a reasonable cap on the number of special events per year; and we had suggested four and you had suggested 12; and now you’ve said okay, that’s off the table, we’ll ask for 20. So I, you know, I sense which way the Commission is leaning and I’m just pointing out that’s something that needs to be addressed in the final. I trust you’re not going to automatically accept 20 but that you will discuss that number as well. WOODWARD: Okay. Basically the motion is to accept those changes that Mr. Mooers has put forward to the conditions with the change to Condition 9, only putting in the coordinates. And that’s what we’re talking about. So is there any further discussion? HAYASHI: Mr. Chair? WOODWARD: Yes, Mr. Hayashi. HAYASHI: Since you allowed the petitioner or Mr. Higgins to participate once the hearing was closed or since the motion was made, I just have some questions regarding the conditions that are proposed; and this relates to the applicant’s proposed conditions. And I’m sorry I didn’t have the opportunity to discuss it off the record with the Director. So perhaps if you can allow me a one- minute recess to discuss this with the Director because there are some enforcement problems that we may encounter if some of these conditions are adopted. WOODWARD: Does any object to allowing time for Mr. Hayashi to speak with the Director? DOMINGO: No objections. 17 EXHIBIT D ISIBASHI: No. KERN: No. WOODWARD: Okay, seeing no objections, we will recess for a couple of minutes. RECESSED The Chair called a short recess at 12:28 p.m. RECONVENED The meeting reconvened at 12:33 p.m. WOODWARD: Okay, Mr. Hayashi and the Director have completed their conference, so we can reconvene. And we were in the process of discussion of the motion. Is there any further discussion? Or, Mr. Hayashi, do you have anything further to add? HAYASHI: Yes. I just wanted to have one condition amended, and this is after discussing with the Director. And that is the applicant’s proposed Special Permit Condition No. 5 regarding the number of special events. And what we would like to add is that in order that we get the, the Department gets notified of the special events so we can also check should someone complain or the public complain that they have exceeded their limit, we would like to add this particular sentence to the end of that condition, “Prior to allowing these special events, the applicant shall notify the Planning Department in writing.” WOODWARD: All right -. LEITHEAD TODD: And this is just so we can keep, if somebody comes later and says there were 22, you know, events or whatever number that we’ve got some record in our files and then we have some method of figuring out whether it’s a violation or not. WOODWARD: Is that acceptable to you, Mr. Mooers? MOOERS: Yes. WOODWARD: Okay. Will you accept that change? Who made the motion? COTTLE: Zendo. WOODWARD: Zendo? KERN: Yes. WOODWARD: Okay, you will accept that change? KERN: I will. WOODWARD: And you seconded, Commissioner Domingo. That’s all right with you? DOMINGO: Special events kind of, “special” seems nebulous. I think probably can we define that word “special”? GONZALEZ: Condition No. 6. WOODWARD: It’s Condition No. 6. 18 EXHIBIT D GONZALEZ: As described, if it’s too broad or if you don’t like it, then you can -. DOMINGO: Okay, okay. WOODWARD: Is that all right with you? DOMINGO: Yeah, yeah. WOODWARD: Okay, is there any objection from anybody else? Okay, seeing none, any further discussion? I guess we’re ready for a vote. Maija. COTTLE: Thank you. Commissioner Kern? KERN: Aye. COTTLE: Commissioner Domingo? DOMINGO: Aye. COTTLE: Commissioner Au? AU: Aye. COTTLE: Commissioner Ishibashi? ISHIBASHI: Aye. COTTLE: And Mr. Chairman? WOODWARD: Aye. COTTLE: Okay, the motion passes five to zero to approve. WOODWARD: All right. Thank you. You’ll be notified in writing. The discussion ended at12:35 p.m. Respectfully submitted, Sharon M. Nomura, Secretary Windward Planning Commission 19 EXHIBIT D