Loading...
HomeMy WebLinkAbout2003-04-04 tdusel3 PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT April 4, 2003 A regularly advertised public hearing on the application of JAMES B. DUSEL (REZ 03-003) was called to order at 9:47 a.m. in the Ohana Keauhou Beach Resort, Kahalu`u Ballroom, 78-6740 Ali`i Drive, North Kona, Hawai`i, with Chairperson Fred Galdones presiding. PRESENT:Fred Galdones ABSENT & EXCUSED: Earl Fujikawa Bill Graham Florence Kubota Jeffrey McCall Aurelio C. Mina, Jr. Francis Smith Hannah Springer Bill Thibadeau Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Staff Planner Phyllis Fujimoto, Staff Planner Daryn Arai, Staff Planner Debbie Chang, Staff Planner Kiran Emler representing Department of Public Works And approximately 40 people from the public in attendance. JAMES B. DUSEL (REZ 03-003) Î Application for a Change of Zone APPLICANT: by changing the district classification from Agricultural (A-20a) to Agricultural (A-10a) and Family Agricultural (FA-3a) for approximately 21.725 acres of land. The property is located in Kealakehe Homesteads, First Series, approximately 700 feet east of Mmalahoa Highway bordering the Upper Government Road and two home and approximately 500 feet south of the Makua Lani Christian Science School and one mile southeast from the Mmalahoa Highway-Palani Road junction, Kealakehe, North Kona, Hawai`i, TMK: 7-4-3:7. GALDONES:Commissioners, we are on Agenda Item No. 2. Applicant is for a Change of Zone by changing James B. Dusel (REZ 03-003). This is an application the district classification from Agricultural (A-20a) to Agricultural (A-10a) and Family Agricultural (FA-3a) for approximately 21.725 acres of land. Daryn, as soon as you're ready. 1 EXHIBIT A ARAI:Okay. Thank you, Mr. Chairman. Good morning, Commissioners. If I may direct your attention to our location map, the project site is located on the upper or the Old Mmalahoa Highway, which is indicated by this white line here, and heading south from its intersection with Palani Road. This is, where I'm pointing is Palani Road Junction, and this is Palani Road itself leading down toward Kailua-Kona. The project site is indicated -, is currently designated Ag-20, as indicated by this olive green color here. And the project site is bounded by these homestead roads, which is indicated here in white. Surrounding lands are designated Agricultural-1 acre minimum lot size, as indicated by this lighter green color, as well as Ag-5 in this even lighter green color. IÓd direct your attention to the site plan itself. Again, the homestead roads that I made mention to as indicated here in white is reflected here on this more detailed site plan in this same location, bordering this project site on three different sides. The homestead roads, access to the project site will be provided by these homestead roads, which have a right-of-way of roughly 20 feet with 10-foot wide paved surfaces. The project site itself is about 21.7 acres in size. The applicant's request is to allow for the subdivision of this lot into two lots, one lot being 3 acres in size, the other balance being about 18.7 acres in size. The current Ag-20 zoning would not allow the subdivision of the property. Therefore, that is why the applicant's request is two-phased, meaning from a current zoning designation of Ag-20 into a designation of Ag-10 for the balance of the property, about 18.7 acres, as well as a request to Ag-3 to allow the applicant to basically carve out a 3-acre portion of the project site. The 3-acre, proposed 3-acre lot is indicated here in the northeastern corner, as outlined in yellow. The Director has reviewed the request and find that the applicant's request is consistent with the General Plan as well as the guidelines for granting of a change of zone. Therefore, he is offering a favorable recommendation of this change of zone request subject to conditions of approval. Some of, one of those conditions of approval, and I would like just to emphasize that if you look at your recommendation report, in the back, it will, Condition E, as in Edward, will require that a 15-foot wide road widening easement be estab where the property does abut the homestead road. That is in anticipation that in the future should this area be further developed, that the roadways can be widened to accommodate additional traffic. But given the applicant's limited proposal, which is just the creation of one additional lot, the Department is not requiring any roadway improvements at this time. Further, there was a comment from the Department of Water Supply regarding the availability of, not so much the availability of water but the type of system improvements that would be necessary to support a proposed subdivision. I would like to quickly mention that the property is currently, the applicant currently has secured two water services to support the property, and that is to support two dwellings on this 21-acre project site. In Water Supply's comments, the act of subdivision would require them to basically upgrade the water system with 100,000 gallon reservoir, much larger mains than 2 what the applicant is currently proposing to service just the two houses. The anticipated cost was something in the neighborhood of a million dollars. So of the proposal, we felt that, and knowing that water is and will be provided to the two homes being proposed, irregardless of whether it's subdivided or not, we are not asking for any additional water system improvements at this time. There's these confused looks, so I guess IÓve got to clarify it. KUBOTA:My looks deceive me, I mean -. ARAI:Yeah. KUBOTA:I won't look at you. ARAI:Okay. Water Department's policy is that when you subdivide parcel, they have higher standards in providing water service to service this, the proposed subdivision. And that includes providing a system that can be dedicated to, I'm sorry, not dedicated, meeting with their full standards, and that is the million dollar cost that is associated with those improvements. The applicant's proposal is sort of like, is providing two meters at the highway and then providing service laterals that goes up to the property as well as putting a reservoir on site, which is only 10,000 gallons, to service the two dwellings on the property. That is the current proposal by the applicant that has, that's what has been approved by the Department of Water Supply, currently. With the conditions of approval that we have offered to you, there is a restriction that no more than one home can be built on each property. So should this change of zone be granted, the end result is you still would have no more than two homes on this 21-acre project site. So that being said, we thought it would be unreasonable to ask the applicant to provide a million dollars worth of water system improvements when the end result is you have two homes on the property, irregardless of whether it's subdivided or not. And that is why there is no specific requirements asking for the added improvements. Okay, maybe IÓm going in circles here but, and maybe the applicant can clarify. YUEN:The end result is that to subdivide the property, they woul ask for a variance from the Water Supply's requirement of these explain a little further. Suppose they -. Let me just give an example. Suppose they already had the zoning to put two lots there. Say it was already zoned Ag-10 acres, all right, and they were going to make two 10-acre lots. And they have, they have two meters, okay, on the -, but they're down on the Mmalahoa Highway. When the subdivision application came in, would come in, Water Supply would generate a letter that looked just like the letter that you see in the file that says in order to subdivide, we look at this differently than having two houses on an unsubdivided lot, or having -, well, than having two houses on an unsubdivided lot; and we would want the full six-inch water line brought up to the property line, plus these storage tanks because they are not within our ordinary elevation. At that point, the applicant could apply for a variance. 3 And what I'm saying is that the chances are very good that the variance would be granted to give some relief to the landowner in that situation. And so that's where the end result, that's where this would end up. Now what we're doing here is saying that given the relatively limited scope of this application, that we would support the rezoning with that same, without putting the condition that Water Supply wants in the rezoning. So they would then be able to go in and have the zoning and then apply for the water; and then, and at the point of subdivision, they apply for this variance from this water system standard. GALDONES:Commissioner Kubota. KUBOTA:Mr. Chair, if I understand Director clearly, then that means you are pre-empting the variance application by proposing what you're proposing from the Department? YUEN:We're not -, they would still have to apply for the variance. KUBOTA:But at this point -. YUEN:At the time -. KUBOTA:You're pre-empting it. You're not -. YUEN:We're not pre-empting it. KUBOTA:You're not pre-empting it? YUEN:Yeah. In -, if the language, if the condition had been put in per the Department of Water Supply letter as a condition of the rezoning, you -, that would be, that would, I think, pre-empt applying for the variance at a future time, yeah. GALDONES:Daryn, was there more to your presentation? ARAI:I'll make it short. I don't want to get into more trouble. KUBOTA:You're not getting into trouble, just clarifying things for me. ARAI:Yeah, no, I know. I'm just joking. KUBOTA:I'm sorry if my looks betray you and I throw you off. I' ARAI:No, no. Just to clarify, there have been additional inform have been submitted by the applicant, and copies of these docume distributed to you. First of all is a copy of a letter dated February 4, 2002. Basically, it's 4 responding to, confirming that DLNR has accepted the archaeological report as well as mitigating measures. A letter dated March 27, 2003, from Department of Water Supply, basically outlining their requirements for water. And finally, a letter dated March 28, 2003, from the applicant's representative to the Planning Director outlining their response to Department of Water Supply's comments. I have nothing to further add at this point. YUEN:Let me just follow up one more thing about the variance application. When people apply for a variance, this does, you do have to, you send notice to the neighbors. There's a public notice, so the Director can't make a decision until those people have had a chance to comment. So I can't sit here and commit that there will be a variance granted. The point of having this discussion now though is that ordinarily we don't, the Department does not recommend rezoning, when even aft project will have to apply for a variance to go through, realistically. But in this case, given the circumstance, and that they do have the two meters and that it's only a two-lot proposal, we are giving some leeway from that normal rule and that normal condition that we have. KUBOTA:Thank you. May I just add to that? Perhaps my use of the word pre-empting was a little bit overzealous. However, I do understand that you are giving them some leeway by not pre-empting it. Of course, I don't think we have the authority to do that. Thank you for the clarification. I have one more, GALDONES:Commissioner Kubota. KUBOTA:Daryn, in the condition, oh, I just had it and I lost it. Okay, just a minute, I'll find it. It was a condition that I wanted to ask about, the wording on it. Norman, this is a good example of why I need to have this in goldenrod. Okay, I have it here. Condition G, on Page 2. The sentence about midway down, "The restriction prohibiting the construction of a second dwelling unit may be removed by amendment of this ordinance by the County Council." That's the first time I've seen that worded that way. Why was this addition put in there, that sentence? ARAI:The Director recommended that language simply in recognitio that once adopted into law, it becomes law. And I should say the subdivision owners affected by this restriction in the future may, say the situation changed. For example, water, it looks like the Director is going to -. YUEN:No, go ahead, finish what you're saying. ARAI:Should the restrictions that is necessitating this limitation at this time change in the future, say as access improves, water availability improves, they may amend their covenants and restrictions to then permit additional dwellings on the parcel, 5 before they can then petition the Council to likewise amend the law to eliminate that restriction. So it's just clarifying that there is that opportunity where the Council itself could lift the condition should situations warrant. KUBOTA:Isn't that a scenario that could take place even now without this sentence put in there? YUEN:Probably, but let me, and what Daryn said is exactly right. But let me go through this. This is, as far as saying it can be removed this is language that we've been putting into these rezonings where the rezoning limits it to one dwelling. And this -. KUBOTA:Limits it to one dwelling. YUEN:Yeah. This wording actually, I'm sorry I didn't look at th carefully as I should have. The normal wording is supposed to be that restrictive covenants shall give notice that the rezoning ordinance prohibits the construction of a second dwelling on each lot and that this can be changed by the County Council. KUBOTA:County Council, right. YUEN:Let me explain, that in the past when I came on, the typica wording -. First of all, there are circumstances in which the Council and the Department have been willing to go ahead and grant a rezoning, typically of agricultural lots, sometimes of residential, with the stipulation that only one dwelling be placed on the lot and eliminate the possibility of additional farm dwellings or 'ohana dwellings. And that is in a situation where they are willing to allow the land to be broken up into smaller units but there's a concern about more houses creating a greater impact. Because in agriculture you can have the possibility, under the Code, normally of additi in the residential districts, the possibility of 'ohana dwellings. This also was very much tied in, at least on the Council level in the past, with the possibility of condominiums being created on the agricultural lots. Because what would happen is that people would get a rezoning and then they would get an additional farm dwelling, and then they would get a condominium, and then they would break up the lots through that process. So that's, that was one way of restrainin advised, the Council was advised by Corporation Counsel that they could not, under the laws existing at that time, outright ban condominiums. They could not put a -, effectively put a clause in that says you couldn't make a condominium on the lot that was rezoned. Okay. That's the background. Now, the concern about that language is that just saying restrictive covenants, if it's put in as a restrictive covenant, then it sounds like it's a forever thing. It may be that in the future the County is willing or thinks it would be good policy t this piece of property, and that should not be foreclosed by it being -. If it's a restrictive covenant, then it's permanent. And it can only, it could be removed by the lot owners but 6 not by the County in the future if some lot owner objected to it. So that's the reason for putting that clause in that it can be removed. And the reason for the language that restrictive covenants shall give notice that the rezoning ordinance prohibits the construction of a second dwelling is to, so that there is clear notice to purchasers of the property that they can't build a second dwelling. We don't expect people who buy, take a subdivision, take this subdivision and somebody buys it in the future, there may be a buyer down the road. We don't expect people to dig out the rezoning ordinance that allowed the creation of a subdivision and review that and find out that they're not allowed to have a second dwelling. Most people will look at the County Code and say, oh, you have a possibility of an additional farm dwelling because that's reason for saying that there should be a covenant in the deed is so that this is something that will then be printed in a deed down into the future, and then every deed has to have this. So then an owner will have notice that they can only put property. So that's the reason behind all of this being worded the way it's worded. KUBOTA:Then the second, then -. Mr. Chair? GALDONES:Chair recognizes Commissioner Kubota. KUBOTA:Then the sentence that follows it is totally not necessary because you have a restrictive covenant already specifying that. So why would the owner of the property, in addition, impose private covenants restricting the number of dwellings? I mean that's duplication, isn't it? YUEN:No, because -. KUBOTA:No? YUEN:Because if the -, this is the scenario, all right. Now the private subdivider can put in, regardless of what the County wants, put in covenants restricting the lots to one home on a lot. KUBOTA:Okay. YUEN:All right. This is to make it clear that they retain the power to do that. The ordinance can change, can be amended to allow more th KUBOTA:Oh, I see. YUEN:But the private subdivider, if they want to give assurance to the buyers in the future that forever there will only be -. KUBOTA:One. YUEN:One home on the lot, they can do that as a private matter. this works -. 7 KUBOTA:I see. YUEN:Let me give an example. Say somebody sets up a subdivision under existing zoning that does not restrict the property to one house on the lot. And by zoning, and as far as the County is concerned, if it's in the Agricultural District, the person can come in and apply for additional farm dwellings. But if the subdivider put in a clause in the subdivision that you can only have one house on the lot, then that's, that overrides the County zoning and it would be a violation of the covenants. It would be a private matter between the lot owners, but it would be a violation of the covenants then to put in more than one house on that lot, regardless of the fact, regardless of the fact that the zoning would allow more. Give another example, you could take a piece of property that's zoned for Multi-Family, and put a covenant in that. The private owner could put a covenant in that you could only put one house on it, and that would be effective, as well. And you could only put one house on that, because as a private matter, even though the County zoning would allow several dwellings or multiple dwellings to be put on it. Anyway, that's the -. You can see this is -. KUBOTA:Okay. YUEN:Rather involved and -. KUBOTA:Yes, it is. YUEN:That's the thought process behind wording it like this. KUBOTA:Thank you. ARAI:Mr. Chairman? GALDONES:Commissioner Springer. SPRINGER:I have a question regarding Condition H. The question is if that, in part, addresses the concern raised in the Background Report at Item 34 from Department of Public Works, under Roadways, Item 2, which indicates that intersection sight distance is not adequate. ARAI:The setting aside of the 15-foot wide road easement does not by and of itself directly address the sight distance at the intersection of that homestead road and the Mmalahoa Highway. And I should note that that intersection is about 700 feet makai of the makai boundary of the project site. Primarily, the 15-foot wide easement that we're asking for is simply to widen the roadways. Ki, I don't know if maybe Public Works may have additional comments on this, but the thought process is that in the end, we are asking, the applicant is asking for a zoning that would allow basically one 8 additional home on this project site, and whether that one additional home would warrant those, that type of additional improvements. GALDONES:Commissioner Springer, you would like to have Ki respond to that? SPRINGER:Yes, I would appreciate that, Mr. Chair. GALDONES:Ki, please. SPRINGER:And my question being then how do we resolve their concern about the sight distance? EMLER:Okay, regarding the width of the road, my comment was made regarding the Subdivision Code requirement. For the width of a road serving a lot more than 3 acres in size, itÓs required to be a 50-foot wide road. So we were putting the Planning Department on notice that, you know, just reminding them of this requirement. And if they wanted to allow something different, that they probably should put it in the conditions in the zone change so it would become law; and we would then follow through with that. SPRINGER:And regarding the sight distance? EMLER:Okay, regarding the sight distance, I had my staff go out and take a look at the situation in the field. I have a photograph if you want to look at it, pass it around. But the sight distance appears to be about -. Incidentally, I guess I should explain what the sight distance comment is about. And that is when you are turning onto a roadway, you need to take a look right and left to see if traffic is coming, approaching on the main road that you're turning into. We have specific guidelines that we use to determine whether or not that sight distance is adequate. And in this case, we did take a look at it and found that it was inadequate. I don't know the exact distance, but I have a photograph, and I can somewhat estimate what it is. And I can a the posted speed limit is on the road, I believe it's 30 miles an hour. But just to give you a comparison, for a 30 mile an hour posted zone, you would need directions. And looking at the photograph, it's probably, at the most, 150 feet. There is a stacked rock wall, somewhat of a retaining wall, on the left side of the driveway that obstructs sight distance. SPRINGER:Mr. Chair? GALDONES:Commissioner Springer. SPRINGER:In the Department's comments, the statement continues on, "All sight distances shall meet the requirements of the Hawai`i State Uniform Design Manual or the AASHTO standards." Mr. Emler, have the conditions that we're presented with met the Department's concerns? 9 EMLER:No, they haven't. SPRINGER:Mr. Chair? GALDONES:Commissioner Springer. SPRINGER:In that case, I would ask the Director how this might be resolved. GALDONES:Mr. Yuen. YUEN:No, I think this is an issue that we should deal with as a issue. GALDONES:Commissioner Springer. YUEN:Is it, Ki, is the geometrics of the road, it's not the geometrics of the road, it's the rock wall at the corner? EMLER:That's correct. YUEN:Is the rock wall right at that intersection, or is it a rock wall a little farther along? EMLER:I'm sorry, I believe there is a curve there on the road, so that could have some bearing on it. So I'm sorry, I'll take that back, my what was your second question, Director Yuen? YUEN:Well, if the rock wall was something right at the, was some right there at the intersection with the homestead road or is it a -? EMLER:It's right there. YUEN:Okay. No, I think we should put in a condition on the sight distance, they correct the sight distance. GALDONES:Commissioner Springer. SPRINGER:Is that something that we can do today then? YUEN:Yes. SPRINGER:Thank you. GALDONES:Are there any further questions of Ki, I mean, I'm sorr Commissioner Graham. 10 GRAHAM:Thank you. It looks like there are two homestead roads going up. I was just wondering if one of the homestead roads has the sight distance problem and the other one doesn't, or something, so that could be mitigated that EMLER:We only checked the one that was going to be used as the intended access. Daryn, you want to point that one out? GALDONES:Daryn, in reference to the discussion that occurred between the Director and Commissioner Springer, would you be able to formulate some language to address that concern regarding the sight -? ARAI:Absolutely. We can include it as a new Condition I, and it could state that -. I tell you, if you can give me a moment, I'll craft up some language, but it would probably be as a new Condition I. GALDONES:Okay. ARAI:And if I could also take this moment to just do some additional housekeeping measures, if that's okay. GALDONES:You may proceed. ARAI:Okay. The Director, at Condition G, as in Gary, the Director made reference on the language regarding how the second dwelling restriction can be removed by the Council. He indicated that this, this was an earlier version. And I failed to put in the more current version of the language that is now incorporated within all conditions. So if I could update it with the more current language that the Director normally imposes or recommends. And if I could also direct your attention to Page 7 of the Director's Recommendation Report about three-fourths of the way down, there's a sentence which starts off, "However -." I'll wait till you all catch up. Is everyone there, Page 7? KUBOTA:Yes. ARAI:Okay, it says, "However, the act of subdividing the lot will trigger the need to provide the system upgrades as recommended by the Department of Public Works." If I can strike out ÐPublic WorksÑ and replace it with ÐWater Supply,Ñ because in this area, we're talking about improvements recommended by Water Supply. So it's just basically a typo. And those are the changes I have at this time. GALDONES:Commissioners, any further questions of Daryn? If not, will the applicant or a representative please come forward. Mr. Fuke, you have already been sworn in this morning. Did you get a copy of the Background Report and the Recommendations? 11 FUKE:Yes. Mr. Chairman and Members of the Commission, I have ju received a call this morning from the applicant, Mr. Dusel, who had like another emergency so he couldn't make it. But notwithstanding his absen to also review the Staff's report and the Director's proposed recommendations, and he found them to be very thorough and acceptable. Oh, he's here. This is Mr. Dusel. You want to identify yoursel DUSEL:Yeah, I'm James Dusel and the applicant. NOMURA:Please use the microphone. GALDONES:Could you speak into the mike so you could be recorded, DUSEL:Oh, I'm sorry. James Dusel, applicant for the rezoning. GALDONES:Mr. Dusel, will you be providing any testimony? If you will -. No, why don't I just swear you in, sir, so that in case you do provide any testimony -. Could you please raise your right hand. DUSEL:Sure. GALDONES:Do you swear or affirm to tell the truth on this matter the Hawai'i County Planning Commission? DUSEL:I do. GALDONES:Thank you. Mr. Fuke. FUKE:Yes. To kind of like follow up on some of the dialog betwe Commissioners and the Director and the Staff, first of all, in terms of the water system, it is true Mr. Dusel and the current property owner, they already have an approved water system. That is to say the Department of Water Supply approved the water system, you know, to service the two dwellings on the property. And relatedly, the condition that I think the Director is suggesting by limiting the number of dwellings I think has a lot of merit and it's on point. Largely, because if you approve, you know, the applicant is representing that they want a two-lot subdivision, they're going to put up one house on each of the proposed lots; and on that basis, you know, we got approval from the Department of Water Supply in terms of how you're going to service this system. If you don't have a home restriction, what happens is that five or ten years down the road, under the farm dwelling provision, each of the respective lots could, conceivably, the lot owners could apply for like a farm dwelling. And you might have like two or three dwellings on each of the properties, and then you strain the infrastructure. So what the Director is proposing is that saying you get what you ask for, only two dwellings on each lot. And until the system is upgraded, vis-à-vis, going through the zone change process, alerting 12 the public, and the County Council made the determination, then you're stuck with the two lots; and, you know, that he's prepared to accept. Relative to the proposed condition, there is a condition relating to the Honokhau well. I, just for the Commissioners' information, want to point out that that well is located approximately maybe about 700 feet north of the property. If you want to, Daryn, you want to show on the left map, you know, where the true arrow is, that true north arrow is, yeah. Yeah, it's generally located maybe about like 700 feet from that point. If your wastewater system falls within 1,000 feet of that radius, then your wastewater system becomes a little bit more stringent. If your system, however, falls outside of that area, even if your property is subdivided, and there's a good portion that, of Mr. Dusel's property, the proposed property is outside of that 1,000-foot radius. So if his wastewater system is outside of that line, then he just does the traditional septic system; but if it falls within the 1,000-foot radius, then he has to have an enhanced system. In terms of the sight distance issue, yeah, it's a new one, and I guess I'm glad that you're here, Mr. Dusel. But I think there are like a couple of ways that it can be addressed. I think the sight distance issue probably could be analogous to the situation like the rezoning, other rezonings that have been processed in the Kaloko area where development is maybe about like four or maybe four or five miles away from the project but, nevertheless, they all use a common road. And so what the Council has done, or through this Commission and the Council, what they have done is they have imposed like a standard impact fee directed towards improving the sight distance at the Kaloko Drive-Mmalahoa Highway intersection. Perhaps something along that line could be considered rather than placing the exclusive burden to improve a sight distance inadequacy just on this one developer who is proposing only one lot. You know, that might be another alternative. DUSEL:On that location of the sight distance in question, that intersection, even if the corner where the rock wall was removed, the roadway turns, and there is no way you're ever going to get 300 feet of distance. Even if the rock wall wasn't even there, that road turns and comes back out of sight. So you could never see, even if the rock wall wasn't there, you'd never see approaching traffic because of the contour and the turn of the road. I know that -. Because anybody that goes up that little road, you have to go very careful making a left-hand turn going up it or making a left-hand turn coming down. It's that southern direction that is, you'll never be able to see around that corner because of the way the road was designed, I guess. So I don't know if that may help. But even if that little corner of the rock wall was gone, you'd never get that kind of distance. FUKE:That conceivably could be the situation, Mr. Chairman, particularly along the Old Mmalahoa Highway, along that section. Because the very nature of that highway, it's a very curved road. So to achieve a 100-yard, or 300 feet clear space on the left and the right side on any point along that highway, I think it might be very difficult for any development up in that area to achieve. So I don't know 13 whether they're going to able to achieve what the Department of Public Works calls the design level of standard in that area. There can be some improvements maybe by the removal of the rock wall or some clearing, but that's pretty much the extent of it. DUSEL:It's also just a stacked dry rock wall. It's -, there's no concrete in it at all. So I don't think, I think it was made many, many years ago. GALDONES:Commissioner Springer. SPRINGER:Hearing these comments, I would ask the Director's guidance, as vdkk`rJhDlkdqlr+hesgdqe should be some sort of documentation. Because what we have in our Background Report is this comment that the sight distance is not adequate and that they shall meet those standards. I'm just wondering how we can resolve that to make that consistent with what may be on the ground. YUEN:Well, when I looked at this application, we were willing to give a leeway. There ware some problems with developing the site. We're willing to give some leeway on the grounds that it's a two, relative small two-lot subdivision. I'm hearing the extent of the sight distance inadequacy. I am not comfortable with adding to the problem by a rezoning without putting a condition that basically says sight distance at the intersection to the satisfaction of Department of Public Works. EMLER:And as far as the comparison with the Kaloko situation, I mean it's just not very plausible that if we had some kind of impact fee for this project that there would ever, we would ever accumulate enough money to fix this intersection. GALDONES:Ki, given the discussion is, that has taken place, is there any recommendation from the Department how we should be addressing this, if what Mr. Fuke represents that there's no way that you're going to be getting 300 feet of sight distance because of the curvature of the road? EMLER:Well, let me perhaps clarify the way we were looking at this, and that is that this homestead road is not currently claimed as a County road. We don't maintain it. And, therefore, we're not saying that it's a County road for the record; however, that may change in the near future. On the other hand, whenever there's a rezoning, Public Works also makes comments on existing County facilities for items that we would like to see corrected for safety purposes. And so, for the same reason, we'd still want to correct it. GALDONES:Mr. Fuke. FUKE:Mr. Chairman, relative to what the Planning Director has recommended, in conferring with the applicant, the applicant has no objection to such a 14 condition provided that the improvements all occur within the County road right-of- way, that does not involve like the acquisition of properties on the adjoining properties. GALDONES:Mr. Yuen. YUEN:Well, I don't expect, I don't think I expect the applicant to agree to this condition. But it is the condition that, as stated, what the Department will, what I'm recommending. It may not be feasible to do it outside, the improvements within the homestead right-of-way may simply not be able, adequate to support this. GALDONES:Perhaps if the, if the Commissioners are struggling wit situation in trying to get this resolved, one thought, Commissioners, is that, if we approve that, then I hate to do that, but maybe have it brought before the County Council to deal with the subject matter. It's just a thought that Commissioners may want to consider. KUBOTA:I would rather deal with the recommendation. GALDONES:Daryn, there was some wording that you were working with, and I would like to have the applicant, have the opportunity to comment on those wordings. Are you prepared with that? ARAI:Yes, I am. The proposed Condition I should read, "To the Homestead Road situated along the northern boundary of the project site at its intersection with the Mmalahoa Highway, the applicant shall provide improvements to sight distance meeting with the approval of the Department of Public Works if used as the access to the subdivision, prior to the issuance of final subdivision approval." GALDONES:Mr. Fuke, would you like to, do you wish to comment on that? FUKE:No, after re-conferring with the owner, with the applicant rather, that condition is acceptable. GALDONES:Okay. My memory kind of skips me now, but in Condition there any language also that you were working on? ARAI:Yes, it's a standard condition that the Director normally includes in such restrictions. I just don't have it in front of me, and I'd rather make sure it's, you know, accurate. So if you could defer to Staff to upgrade or update this language. I just won't have the specific language available for you. GALDONES:Mr. Fuke, are you familiar with the language? FUKE:Yeah. GALDONES:And are you okay with it? 15 FUKE:Yes, I am generally familiar with the language; and, substantively, it doesn't change the nature of Condition G, so the applicant would have objection to that. GALDONES:Okay. Thank you. Mr. Fuke, also on condition, approva Condition of Approval E, staff recommends insertion of the words "on three sides." Is that acceptable? FUKE:That was always the understanding, because this is a corner property. GALDONES:And also -. Okay. Thank you. And also there was a change on Page No. 7, there was a typographical error. You don't see that there's a problem, do you? FUKE:No, that was an editorial correction. GALDONES:Okay. Commissioners, are there any further questions to the applicant or Mr. Fuke? If none, Mr. Fuke and Mr. Dusel, we do have testifiers, so if you could please step back. I would like to call upon Joy Allison and Curtis Tyler. ALLISON:I just came to listen. GALDONES:Okay. You are not going to testify? ALLISON:No. No. GALDONES:Okay. Thank you. Mr. Tyler. Do you swear or affirm t truth on this matter now before the Hawai'i County Planning Commission? TYLER:I do. GALDONES:Thank you. Please be seated. Mr. Tyler, please state your name and resident address. TYLER:Mr. Chairman, Members of the Hawai`i County Planning Commission, my name is Curtis Tyler. Aloha kkou. Thank you for the opportunity to present some thoughts regarding this proposed rezoning this morning. I come to you as a lifetime resident of Kona, also as the elected Council Member for District 8, in which this property is located, also, as, in that capacity as someone who would be one of nine passing, you know, making final decisions regarding your recommendation. So I appreciate the opportunity to give you some comments. Very good questions by the Commissioners this morning regarding this property. And from some of your comments and questions, it's obvious that some of you have, are not familiar with where this is. Indeed, this is really a blind turn. It is right on the blind turn; and the sight distance is, as Mr. Emler indicated, unsatisfactory. And if you have a 16 chance, you ought to go up and take a look at it. Granted, this is not, we're not putting 30 new lots up there, this is one additional lot, as I understand it. There's a couple of things I wanted to mention to you. The homestead road there, as correctly pointed out by I believe it was Commissioner Kubota, there are two homestead roads fronting the subject property, on the north and -, bounding, excuse me, the subject property, on the north as well as the south. While the County doesn't recognize this as a County road, it is a County road, and it is not maintained; and that's the reason the County doesn't want to recognize it. This is what the County is calling one of these roads in limbo. It's only in limbo because the County didn't receive any funding from the State when the State gave all these roads to the County, I believe it was in 1988. And that's an ongoing subject of great concern to your Council, including all of the Council Members; and we're working with administration to try to find a way to get some funding. But the reason I bring this up is because -. Oh, and also, there is the Old Government Road, which bounds the property on the eastern or mauka boundary. Some of us have been working to create a greenway, a non-motorized pedestrian pathway from Kalaoa area all the way into, it would be Keahuol, which would be the next ahupua`a over where I believe this road peters out. And I think turning it into a future roadway, given what has or has not occurred, is probably not likely. I appreciate that the Department of Public Works was looking for a 15-foot additional widening there. But I'm not aware that they have proposed such a thing in other projects adjacent to these. And I could be wrong because I don't have those in front of me, but I just don't recall them. The -, I wanted to report to you that the homestead road on the hema side or the southern side of this property is blocked off, despite what the Council has done in previous years, previous Councils before I -, you know, over seven years ago. They allowed some subdivisions to property, in properties to the south of this; and this roadway is now blocked. There's a gate there; there's a gate at the top. And it can't be accessed properly. So I just want to note that for the record. And I would hope that such a situation would not occur on the proposed access road, which is the northern, along the northern boundary. And I'm not suggesting that this applicant has closed that road off on the south. I'm not suggesting that, I'm just reporting to you what is there. And I believe the applicant's property is above where the gate is, in any case, on the southern side. I'm a little confused that, in reading the recommendations. And, by the way, Madam, Mr. Chairman, excuse me, I did read the Background Report and the Director's Recommendation, and I thank the Staff for providing that to me. I read it this morning. I'm a little concerned that there are clearly some comments from particular, the Department of Water Supply, as well as the Department of Public Works, indicating to you in their letters what there -, their rules and regulations are or what the current County Code provides. I'm speaking specifically of Chapter 23, the Subdivision Code. And I think Mr. Emler has made it eminently clear this mo some of the Commissioners who have asked questions, that how can we pre-empt or supercede the Code or the rules? And I would caution you not to go there. You have 17 your Corporation Counsel here; and if you have legal questions, you'll have to direct them to him because I'm not qualified to give you any legal advice. But I would be very careful about trying to circumvent, not maliciously or otherwise, the Code. I would agree that it seems a little onerous for one additional lot to put in a 100,000-gallon reservoir. But I am not an engineer; and I, as we all know, the Department of Water Supply is a semi-autonomous organization, and I have no say so over them whatsoever. But I would just, I would ask you to exercise caution. The other thing is because this is within 1,000 feet of the well they will have to make certain arrangements. Cesspools and septic tanks aren't allowed. There's no County wastewater system there. You might want to inquire as to what they're going to do. I'm not aware of what other option there might be, short of putting it in a tank and shipping it out of there. The, I read the archaeological inventory survey report. And I would note that there is at least, I believe, one iwi `aina or kuawi wall, which is an ahupua`a wall. If it is, I would ask the applicant, Mr. Dusel, to please respect the importance and the historicity of that wall because it, in fact, delineates all -, and sets up our entire real property tax system. And if those walls are demolished -. And I note in the Background Report that there is no indication from SHPD that the walls are to be preserved, and I think that's entirely unfortunate. DUSEL:We will preserve them. TYLER:Mr. Dusel says they're going to be preserved. So I just note that, for the record. Because whenever I see they don't have to be preserved, it means they can be destroyed. And so thank you, Mr. Dusel. Mr. Chairman, I jus comments here. Of course, the 15-foot widening easement on the homestead road, if, in fact, the road was widened, would destroy the wall; and so I'm hoping we don't have any plans for that in the immediate future. I don't think there are. The, let's see. I just want to be sure that everyone recognizes that's a public roadway and it will not be gated. And also, in that regard, Mr. Chairman and Members of the Commission, in the past, some of you have heard, and those of us on the Council have heard and heard frequently, ÐWell, you know, they allowed this subdivision to go in, but we have this terrible road, and we want the County to improve the road.Ñ And I'm not saying that's going to be the case here. I know there have been some improvements to this road in the lower section, but this has always been a problem for the administration. And that's one of the reasons they are cautious about the condition of the road and the fact that it's what they call a road in limbo. So I hope there's no expectation that at some point in time we will be petitioned to resurface this roadway, especially in light of just the small impact here. I didn't hear any, and I don't, you know, I 18 Condition No. H, the Planning Department has, I think it's Planning, has been sending up this condition about a roadway widening and it contains the word in the last sentence sgdqd+n`srtbgshld`rl`ybe demanded by the Deo`qsldmsneOtakhbVnqjr-oVgdm these come forward, Hludaddmbg`mfhmfsg`ssnnqdptdrssg`s-oHsghmjncdl`mcdco sounds a little too strong; and I would ask the Department please not to use that word anymore. I think, you know, we serve the public and we should not use that kind of vnqc-@esdq`kk+sgdxlqdfhuhmfsgdoqnodqsx-Vdlqdqdpthqhmfsgdlsnfhudhssntr+rn sg`slritrs`lhmnqonhms- YUEN:WeÓll change the word to ÐrequiredÑ in the future. TYLER:Yeah, Ðrequired,Ñ or Ðrequested,Ñ or whatever. Now, IÓm puzzled about the, well, I thank the Director for suggesting the restrictive covenants in Condition G. I think those are excellent and absolutely necessary to prevent any abuse. But IÓm uncertain as to how theyÓre going to proceed if they donÓt proceed with a subdivision. It seems to indicate that if they donÓt subdivide it, they donÓt have to put in the water. If they donÓt subdivide it, how are they going to put in, how is this deal going to go through? ItÓs predicated on Mr. Dusel purchasing the property; and he canÓt purchase it if itÓs not subdivided. So why is this language in there? ItÓs sort of like, well, you know, if they donÓt subdivide it, they donÓt have to do these things, like maybe thatÓs what theyÓre going to do. But I thought this was, the purpose of the rezoning is to allow a subdivision of at least one lot; and itÓs only that lot. I believe, Mr. Chairman, itÓs not, it only applies to that one lot. The other 20 acres is going to remain in Ag-20. Is that correct? The whole thing would go to RA-3? GALDONES:Daryn will now address it. ARAI:The proposal, the entire property is currently zoned Ag-20, 21.7 acres. The request is to rezone a portion to FA 3-acres and the balance to be Ag-10. So the Ag-10 would, for the remaining 18.7 acres, would prevent its further subdivision into additional lots and Ag-3 is to accommodate the 3-acre portion that the applicant wishes to carve out. TYLER:Okay, so the maximum number of lots, if you come out of th the maximum number of dwellings would be two. ARAI:Two. And I should add that the condition regarding the second dwelling restriction applies to both properties, the 18.7 balance and the 3 acres. TYLER:Yes. Thank you, Mr. Arai. Appreciate that. So IÓm puzzled as to why there would not be a subdivision. ÒCause thereÓs some language in here that seems to indicate that if they donÓt subdivide it, they donÓt have to do this. 19 GALDONES:Mr. Tyler, specifically in the conditions or the recommendation, where does that appear? TYLER:LetÓs see, I think it was in the water -. ARAI:Maybe while weÓre looking, I should note that Condition E, as in Edward, requires the applicant to subdivide or complete subdivision within five years. So itÓs a requirement. TYLER:Okay. So if they subdivide, then under Chapter 23, they have to put in a wider road. Is that what I understand? A 50-foot, or at least there has to be a provision for it? ARAI:Subdivision Code standard is 50-foot wide right-of-way and 20-foot wide pavement. However, in recognition of the scope of this project, the Director would be amenable to considering a variance from those requirements. The applicant has -. TYLER:That would be subsequent, subsequent to approval of the rezoning? ARAI:Correct. YUEN:Let me explain here, and what Daryn said is correct. ThereÓs some technical problems with what they want to do, given that after zoning you still have the Subdivision Code, as you pointed out. The zoning, the language of the zoning, normally we would put in everything that you would, we load up on the rezoning, everything that you have to do in the end. Given the, and there would be, as you point out, youÓd have to do a 50-foot right- of-way and a, say, the access road would have to be improved 50 feet, 20 feet right-of-way. We would, what we are going to do, given that this is a relatively small subdivision and weÓre giving a leeway to that fact that only two lots are being created, we have not included the specific Department of Water Supply request which we would normally do in larger subdivision. In a larger rezoning, we put that in as a specific requirement. They are then able to apply, they would have to apply for a variance to do the subdivision from the Subdivision Code if this rezoning goes through. They would also have to apply for a variance on the roadside. And what weÓre signaling is that we would entertain both those variances. The intersection, though, I had not realized that it was such a sight distance limitation. Being a safety issue, we would recommend putting that into the rezoning ordinance. TYLER:Thank you, Mr. Yuen. Yeah, the applicant has, or the applicantÓs representative, Mr. Fuke, has pointed out that, you know, thereÓs very large outcropping just prior to this at the turn. I mean, it is a major one. And what has happened is more and more properties are being developed off of this road. If you look in your map youÓll see them all there. And, so, thereÓs more and more traffic coming out of that roadway. ItÓs not just these two lots. You have to think about whatÓs there now. And the fact that no conditions were previously imposed, it does seem, you know, that maybe the applicant is where the straw breaks the camelÓs back, I donÓt know. But it is a safety problem and the engineer is correctly pointing it out to you. IÓm not sure what the ultimate solution is going to be. And the 20 pointing out to you because of the elevation changes, etc. -. But I did want to give you some personal first-hand information about that. I think thatÓs the end of my comments. I just want to be sure that thereÓs no, thereÓs going to be no blocking of this road or the government road up above. ÒCause it says, well, thereÓs no traditional and customary, but those are mauka-makai, ala hele, and there is one lateral one which is, in some cases, currently used for that purpose. Mahalo. GALDONES:Thank you very much for your participation and your com Mr. Tyler. TYLER:YouÓre welcome, sir. GALDONES:Are there any questions of Mr. Tyler, Commissioners? TYLER:Oh, Mr. Chairman, I forgot one thing. Under Condition I that was proposed by Mr. Arai, it says there if the applicant uses the access, they have to do this. I donÓt understand. What other access will they use if they donÓt use this access? I mean, are they going to do a heliport up there or what? GALDONES:Daryn, is the wording -? TYLER:I mean, we always have these little caveats that come to us. How else are they going to get there? ARAI:If thereÓs no other way to get there except that Homestead Road to the north, then they would have to provide the sight distance improvements. The passage was included simply in recognition that if the applicant is able to come up with an alternative access point out of, out on to the highway that avoids this intersection with the sight distance problem, then the condition would not compel the applicant to provide the improvements even though theyÓre not going to use it. TYLER:Okay. ARAI:So itÓs just optional. TYLER:Thank you. I just wanted to point it out, Mr. Chairman. Thank you again. GALDONES:Thank you very much. YUEN:I donÓt know the feasibility but there is that other Homestead Road. It may not be feasible to use it. TYLER:Yeah, and thereÓs also the old government road. The way this is proposed, they would have to access the old government road unless they had permission by the underlying owner. And then thereÓs a gate or gates. 21 YUEN:I donÓt know the feasibility of it but there is at least on paper another little access. TYLER:Okay. And that side access is significantly better, I would point out. Someone asked the question. Thank you. GALDONES:Thank you, Mr. Tyler. Mr. Fuke and Mr. Dusel, youÓve h discussion of the testifier, from Mr. Tyler. Do you have any more comments, additional comments? FUKE:No, I think that most, if not all, of the concerns that he has raised have been addressed by the Director and his staff. The applicant is prepared to accept all of the conditions as recommended by your staff. And, unless thereÓs further questions, weÓd be more than willing to answer them. GALDONES:Mr. Tyler also mentioned about the wastewater situation. FUKE:As we indicated earlier, the wastewater system, if his wastewater system falls within the thousand foot radius, then he has to develop an enhanced wastewater system which maybe an aerobic system, which is no different than like a lot of other approved wastewater systems within a thousand foot of an operating well. Case in point is Big Island Country Club, you know, they have an operating well right on their property. And weÓve had to, the applicant has had to work together with the Department of Health in getting an aerobic system; and theyÓve got an approved aerobic system. So thatÓs the system, if his system falls within the radius, he would have to meet with their approval. GALDONES:Thank you, Mr. Fuke. Commissioners, any further questions? Commissioner Graham. GRAHAM:Thank you. I just have one sort of philosophical point to bring up. I shouldnÓt say philosophical but about a specificity question. I remember, I learned a lot about Planning Commission when Mike Luce was the Chairman. And one of the things that I think he tried to do was when there were substantial issues to try to get them ironed out in the Commission. So that when it came time for legislation, the issues were concrete, as opposed to leaving substantial issues that the applicant needs to work this out with this or that department. So it seems like this line of sight issue is a very substantial issue, so IÓm wondering if thereÓs some way that either the Planning Commission or later that the Council should have this issue worked out with the Public Works Department before final action is taken. ItÓs certainly not my call to make, but I just want to suggest that. FUKE:Mr. Chairman, if I can respond. I think that my sense is t what the Director has recommended, that that is sufficient because it gets down to like a very technical issue between Mr. DuselÓs engineer and the Department of Public Works. And he would have to come, the applicant would have to come up with specific construction plans, you know, to address this specific issue. What that plan is, I really donÓt know. But it would be 22 subject to the review and approval of Department of Public Works; and only once thatÓs done then that condition would have been complied with. YUEN:As far as the philosophy, we definitely have a philosophy o solve things at this stage, you know, rezoning; and we hope to have all issues dealt with and not left up in the air. The reason, and thatÓs so that when the Council gets the recommendation from the Planning Commission, they take that very seriously, that a lot of this has been looked at and hopefully worked out at the Planning Commission stage. I donÓt look at this condition -. Sometimes we would be more specific than saying to the satisfaction of Department of Public Works. But the reason for not saying, for example, AASHO is tha feet and you can do 330 feet, and that may be enough of an improvement in the present situation that everybody is happy and that AASHO is not looking at a specific condition of adding one lot to a particular roadway but looking as a generic standard for what you expect in a road that, in a road intersection. So this is kind of a long answer. But I think that we are, itÓs an important question. I donÓt like to just kick, when weÓre doing a rezoning, we need to look at all the issues that are going to arise and not kick things off to the future, try to solve them as much as possible at this stage. And IÓd look at, this condition was meant, was not meant to put a, to make it ver nebulous in the future as to what was going to happen. But I donÓt think that we can really be, weÓre prepared to be that much more specific right now. This is something that can be dealt with a little later. GALDONES:Commissioners, any further questions, comments? Are you ready to take action on this? Commissioner Kubota? KUBOTA:Mr. Chairman, I move that Change of Zone Application REZ 03-003 be given a favorable recommendation and be forwarded to the County Council, along with the Findings and Conclusions submitted by the Planning Director, as well as some amendments to the Background Report. First, on page 7, changing the departmentÓs name from Department of Public Works to the Department of Water Supply. T amend G by referring to staff to add the standard language with the current language and replacing this one sentence, ÐThe restriction prohibiting the construction of a second dwelling unit may be removed by amendment of this ordinance by the County Council.Ñ Addition of a new Condition I to correct the sight distance problem, and I donÓt have the language in total but staff has it, and the intent is to mitigate the sight distance problem as pointed out by the Department of Public Works. And the subsequent relettering of the rest of the conditions. I think thatÓs it. SPRINGER:Second. GALDONES:It has been moved by Commissioner Kubota and seconded b Commissioner Springer that the application of James B. Dusel, Change of Zone Application (REZ 03-003), be given a favorable recommendation and be forwarded to the County Council, along with the amendments as stated by the maker of the motion. Further discussion by the Commissioners? Hearing none, Daryn. 23 ARAI:Can I just ask one clarifying question or two. In my notes I had some proposed suggested amendments, one was Condition E regarding the someone was talking about clarification along three sides? Was that only a clarifying statement or did someone actually suggest an amendment to that condition? GALDONES:I believe that there were no amendments introduced by t ARAI:Okay. GALDONES:I believe itÓs because Mr. Fuke has stated that was the understanding all along. But if the Department feels more comfortable with it in, I would leave it to the maker to amend the motion. ARAI:And I also wanted to make sure that Condition H, what Councilman Tyler talked about, instead of Ðdemanded,Ñ Ðrequired,Ñ thatÓll be to future -? GALDONES:That was the remark made by the Director. ARAI:Okay, understood. GALDONES:Any further discussion? Daryn, for the vote. ARAI:Commissioner Kubota? KUBOTA:Aye. ARAI:Commissioner SpringerÑ SPRINGER:Yes. ARAI:Commissioner Graham? GRAHAM:Aye. ARAI:Commissioner McCall? MCCALL:Aye. ARAI:Commissioner Mina? MINA:Aye. ARAI:Commissioner Smith? SMITH:Aye. 24 ARAI:Commissioner Thibadeau? THIBADEAU:Aye. ARAI:Chairman Galdones? GALDONES:Aye. ARAI:Mr. Chairman, motion carries with eight votes. GALDONES:YouÓll be informed in writing of todayÓs actions. FUKE:Thank you very much. GALDONES:YouÓre welcome. The discussion ended at 11:03 a.m. Respectfully submitted, Sharon M. Nomura, Secretary 25