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HomeMy WebLinkAbout2008-04-18 TKOHALA LLC PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT APRIL 18, 2008 A regularly advertised hearing on the applications of Initiator PLANNING DIRECTOR (SMA 379) and Applicant KOHALA LLC (REZ 866/SMA 379) was called to order at 9:18 a.m. in the - Waikoloa Beach Marriott Hotel, Alii I Room, 69275 Waikoloa Beach Drive, Waikoloa, Hawaii, with Chairman Rodney Watanabe presiding. PRESENT: C. Kimo Alameda ABSENT & EXCUSED: Shelly Ogata Lani Bowman Alvin Rho Takashi Domingo Andrew Iwashita Rene’ Siracusa Rodney Watanabe QdkkVnncv`qc Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Christopher Yuen, Planning Director Steven Lim, Attorney for Kohala LLC And 4 people from the public in attendance. APPLICANT: KOHALA LLC (REZ 866) Continued hearing on an amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. The property involved is located along the southwest (makai) side of Akoni Pule Highway and st the Kohala Ranch Subdivision, Kahua 1, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (SMA 379) Continued hearing on an amendment to Condition 4 (time to secure final subdivision approval) of Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest st (makai) side of Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1, North Kohala, Hawaii, TMK: 5-9-1:8. INITIATOR: PLANNING DIRECTOR Amendment to Planning Commission Rule 9 (Special Management Area) by including requirements to mitigate the adverse impacts of light pollution in coastal areas and artificial EXHIBIT A 1 lights on the shoreline and ocean waters by prohibiting the positioning of artificial lights in a manner causing direct illumination of the shoreline and ocean waters. This amendment is mandated by Act 224, Session Law of Hawaii 2005. WATANABE: If there are no objections, I think it might be more efficient to address the first three agenda items, which would be Kohala LLC ( REZ 866) which is an amendment to Condition C and it’s a Change of Zone Ordinance, as well as Kohala LLC (SMA 379) and the Planning Director initiated revocation of SMA Use Permit No. 379. We’ve consolidated these in the past and this is, I think, maybe the fifth time we’ve been addressing this. So I would guess that there would be no objections to consolidating these once again. Are there any objections? Yes? SIRACUSA: I just want to clarify that that’s for purposes of discussion. When it comes to taking the votes, we will vote on them separately. Is that -? WATANABE: Yes, yes. SIRACUSA: Okay. WATANABE: Yes. And at the last meeting that we had that addressed this, I did relinquish the Chair because I did have some material to present. As I indicated earlier, this is about the fifth time. I’m not planning to introduce any new material. And you know, technically, the hearing is closed. So – and based on the past voting records it would not appear that we have the votes either way to carry this either way – so unless there are any objections, I wasn’t really planning to relinquish the Chair today. I would welcome your comments. Yes, Ms. Siracusa. SIRACUSA: I would be quite happy if you retain the Chair today. WATANABE: Okay, okay. No objections to that? Okay. Because, like I said, I don’t think -, you know, the positions have been well stated already, I don’t think we are going to elaborate much on that. With that, we have some additional material that we just received this morning from Mr. Lim. And I believe -. Oh, excuse me. I skipped you, yeah, Mr. Darrow? DARROW: No problem. WATANABE: It’s all yours. DARROW: This will just be a brief summary again of the application. This is a continued hearing for these items on the agenda, Items 1, 2 and 3. At our last hearing on March th 20 in West Hawaii, we did have a motion that was made; the motion was to send a favorable recommendation to the County Council for the Change of Zone Ordinance 97-102 with the applicant’s proposed, or adopting the applicant’s proposed amended conditions. The motion did not pass, four to three, four ayes and three noes. So from there all items were continued to the next West Hawaii meeting. EXHIBIT A 2 Just for a brief overview, the area of this application is within North Kohala. More specifically, we are looking on the Mahukona Coast. This is Akoni Pule Highway running in a north-south direction. The project location is identified with the wording as well as a dot. The zoning for the property is currently Single-Family Residential 15,000 square feet. Change of Zone 97-102 was approved in July 1997 to change the zoning from Agricultural 5 acres to Single-Family Residential 15,000 square feet. The applicant is requesting a 5-year time extension for Condition C of Change of Zone Ordinance 97-102, which is to secure final subdivision approval. Additionally, the applicant is requesting a time extension of 5 years for Condition 4 of SMA 379, which was approved in August 1997 for a 50-lot single-family residential subdivision. Condition 4 is also to secure final subdivision approval. The Planning Director is initiating revocation of SMA 379. So we’ll go through this. This is a continued hearing for these applications. We do have an aerial shot of the location. Kohala Ranch entrance is just located on the mauka side of the Highway of this project. Again, we have the project location, which I’ll keep up on the map. As you had mentioned, we have received one correspondence for this application since our last hearing, dated April 7, 2008, which appears to be a correspondence that was directed to the Hawaii County Council. Are there any questions? WATANABE: Any questions, Fellow Commissioners, of Mr. Darrow? Okay. With that, then I guess we can proceed by calling up Mr. Lim, the representative for Kohala LLC. I guess I need to swear you in. Do you swear or affirm to tell the truth now before the Planning Commission? LIM: I do. WATANABE: Yes. And for the record, your full name and address, please. LIM: Steven Lim from Carlsmith. P. O. Box 686, Hilo, 96721. I’m representing Kohala LLC today. WATANABE: Okay, thank you. Mr. Lim, as I stated earlier, technically the hearing is closed. And I’m wondering -, would you want this accepted as part of the record -? LIM: That’s correct. WATANABE: The recent correspondence? LIM: That’s correct, Mr. Chairman. And we’d ask the Planning Commission reopen the hearing in this matter just for the limited purpose of introducing that into the record. We had stipulated early on that we would have a consolidated hearing. And this is probably going to be my last submittal to the Council; so I want that to be a part of your records also. WATANABE: Thank you. EXHIBIT A 3 LIM: We won’t -, we’ll agree that the limited purpose of opening up the hearing will not extend further our ability to have the Commission take action on this matter. So actually we would like the Commission take action today -. WATANABE: So no further arguments, just -. And so I guess it would be appropriate for me to ask the Director if you have any objections. YUEN: I don’t object to the Commission having this. I would just ask -, I did write something in response to this at Council, and send it to Council. So if this matter does get considered further – and I don’t have it here today – if it does get considered further by the Commission, I would like to have the liberty of submitting it to Commissionbefore any other deliberation. I can discuss the contents of it today if necessary. WATANABE: Okay, so -. LIM: We’d have no objections to submittal of the Planning Director’s letter that he submitted to the Planning Committee of the County Council. I think that was just prior to its th first meeting in March, about March 11 was the first meeting. WATANABE: So then we are in agreement that, should we in the future deliberate on this, your submittal to the County Council would be included within the record, or you’d have an opportunity to include it then. Is that correct? YUEN: Right. But I think that there was a letter that went to the Council after th April 8. But I’m not -. WATANABE: You’re not sure. YUEN: I’m not a hundred percent sure right now. WATANABE: Okay. Mr. Lim, seeing as whatever was submitted to the Council would be, I believe, public record, do you have any objection? LIM: We have no objection. I was just trying to find the letter. WATANABE: So potentially we don’t have to be as specific about the submittal of this that it’d be something that was submitted to the Council with regard to this issue? LIM: That’s correct. I’ll look – I am pretty sure I have that here – so I’ll look for that, so I can give you the date. And I can probably even give you a copy of that letter. WATANABE: Okay, thank you. Ms. Siracusa. SIRACUSA: I’m not sure if this is an appropriate question of Mr. Lim or not. And if it’s not, I hope that Mr. Torigoe will shut me up or tell Mr. Lim not to answer. But you know, in a lot of ways this has been an unusual application. For one thing, usually when an applicant EXHIBIT A 4 comes before us, they’ll either come themselves or they’ll come with their consultant. And Mr. Lim has always appeared for Kohala LLC. We don’t have any idea who the principals of Kohala LLC are. And we’ve never been informed who they are. And I’m just wondering why that is. Mr. Lim, could you answer that for me? Is that appropriate? LIM: Well, I -. SIRACUSA: It’s not like I would take it into consideration in my, you know, in my voting. I just -, it seems strange to me. LIM: I’ll answer it this way. The client of -, actually there is a living person behind Kohala LLC, and he has not been able to come because of his business concerns. But I think that’s about all I can say with respect to the LLC. WATANABE: Okay, thank you. Maybe we should limit it to that. I’ve been informed that technically we should reopen the hearing, if we are going to start introducing more evidence. And I might also point out that when you are – to me, anyway – when you are making a land use decision, it’s not critical who owns the property. And I note that you said that you wouldn’t necessarily take that into consideration. But because of that, I don’t see the particular relevance of whether we know who all makes up Kohala LLC. SIRACUSA: I just thought it should be part of the record, so that somewhere along the line if something happens and Kohala LLC dissolves, for example, then we know who, you know, it’s on the record who the principals are. WATANABE: Okay, thank you. So, yes, Mr. Woodward. WOODWARD: Mr. Chairman. And I don’t know if this is appropriate without reopening the hearing. I’ll throw it out and see what Mr. Torigoe has to say. But I know Mr. Lim at the last meeting has said that the principals involved may be willing to reduce the number of lots. And as far as I know, we haven’t heard any information in that regard. They had originally reduced them to -, I believe it was 25. So I would be interested, if it’s appropriate at this time, to find out what Mr. Lim has to say. Now, that may require reopening the hearing, I don’t know. I’ll leave that to Mr. Torigoe. TORIGOE: Thank you, Mr. Chairman. I would recommend, if you want to start discussing the substance of the merits, then you reopen the hearing. And you probably want to do that anyway to consider, you know, whether you’re going to allow further correspondence in. WATANABE: I understand that. But you know, initially Mr. Lim indicated that he wanted us to reopen the hearing for the specific purpose of introducing this as part of the record, and the condition was that we would also include the correspondence that Mr. Yuen had provided to the County Council, and not so much to open up the arguments. Let me ask my Fellow Commissioners. How do you feel -, do you feel that it would be productive if we reopen the hearing to discuss further, a further limiting or are we pretty hard and fast on our positions? EXHIBIT A 5 SIRACUSA: If we -, has anyone signed up to testify on this matter? WATANABE: No, no one has. Not on all three of them -. SIRACUSA: That would be something I would take into consideration. Basically, I have no trouble reopening the hearing. I have no problems with that. WATANABE: I guess what I’m saying, though, is is it going to be fruitful, or are you -? You know, if you are already set in your decision, then -. Because I remember at our last meeting, Mr. Lim wondered whether there was any other number, some smaller number than 25 units, that would be acceptable, and no one responded. Mr. Iwashita. IWASHITA: Thank you, Mr. Chair. First, I’d like clarification on the timing on as far as our -, if there is a deadline now in terms of getting this to Council. WATANABE: It’s my understanding that the applicant had the opportunity to extend the time; so timing-wise I believe we are still in good shape. It’s also my understanding that the applicant has indicated that they are not looking to continue this matter beyond this date, given the voting record and the testimony that was already occurred. IWASHITA: I guess my concern, then, is that, you know, our decision is supposedly th based on the entire record. And Mr. Lim -, the suggestion now is Mr. Lim’s April 7 letter to Mr. Pilago, the Chair of the Committee on Planning for the County Council, be put in our record. And there is another agreement that Mr. Yuen’s response to this letter be put in; but we don’t have that today. So it seems to me there is a procedural defect in terms of our deciding on the entire record, if we are trying to go down that road because we don’t have Mr. Yuen’s letter. WATANABE: Mr. Lim LIM: Yes. I’ve just submitted the March 5,2008, letter from Mr. Yuen to the County Council, which I think is the one you were talking about, Mr. Yuen. And so we’ll stipulate that that will be introduced along with ours. Maybe -. WATANABE: Mr. Yuen, would you need to -? LIM: Maybe I can -, with respect to the issue on whether we are going to be talking about further reduction in lots, I think, you know, we discussed this with the client. And th you should know that on April 8, the County Council Planning Committee voted to forward a favorable approval recommendation to the full Council for the downzoning, adopting Mr. Yuen’s proposed downzoning. So in light of that, that’s why we are taking the position today that we’d just like to wrap things up today. And I don’t know that there is going to be any utility in discussing, you know, reduced proposal at this time, in light of what the County Council is doing. WATANABE: Mr. Iwashita. EXHIBIT A 6 IWASHITA: Yeah, you know, given that and there’re already allegations that there’re defects procedurally in the process that the Commission has gone through in this and other matters. So I just don’t see, you know, since we’re not going to have an opportunity today to see Mr. Yuen’s response to this April 7, 2008 letter -. Do we have it? WATANABE: I’m trying to validate that. I’m not sure because he wasn’t familiar with the date. So unless he looks at it, I have no idea. IWASHITA: Okay. Mr. Lim’s letter is dated April 7, 2008; my understanding is Mr. Yuen did respond sometime after that. And if that’s the case -. YUEN: I thought it was after that, but it may have been before. And in either event, I think that both Mr. Lim and myself would agree that the Commission, if it chooses, can take action based on what you have before you. And it’s only if you were to move this to another meeting that I would want to submit something else. WATANABE: Does that clarify it for you, Mr. Iwashita? IWASHITA: Well, I would just like to have it clear on the record from the applicant, right, that if we admit both of these, that there is not going to be any objections somehow to this process that, you know, if we vote today and whatever the result, if it’s not favorable one way or another -, if it’s not favorable to the applicant, that the submission of these documents somehow would be raised as creating a procedural defect to the vote. LIM: The applicant would be willing to waive, is willing to waive, or is waiving th that objection with respect to these two documents we are talking about, which is the April 7 th letter from myself to the Council and Mr. Yuen’s March 5 letter to the Council. IWASHITA: Thank you. WATANABE: Is that satisfactory? IWASHITA: Yes. WATANABE: Do we have a -? LIM: I’d like to make it clear that we reserve all of our other procedural, you know, objections, but -. WATANABE: Okay. LIM: With respect to these two documents, no problem. WATANABE: Yeah, I understand. Are there any other comments from the Fellow Commissioners? Yes, Ms. Bowman. EXHIBIT A 7 BOWMAN: I just would like a point of clarification. So we are not reopening the hearing? WATANABE: We are -. BOWMAN: Or we don’t know yet. WATANABE: The intent is to reopen the hearing with the limited purpose of introducing these two letters, the correspondence. It is not the intent to reopen the discussions because, as Mr. Lim pointed out, you know, and we are just an advisory to the Council with regard to zoning and the Council has pretty much stated their position, so -. BOWMAN: But we will discuss these newly submitted documents, if we reopen the hearing. That will be -. WATANABE: It will be part of the record, and we could deliberate over it. I’m not sure how fruitful that would be, though. BOWMAN: Okay. I mean, I’m just -, you know, to get something 5 minutes ago and not be able to look at it is a little difficult as far as I’m concerned. WATANABE: Mr. Iwashita. IWASHITA: I just -, procedurally, the reopening is just for these documents is my understanding, and that there is no other -, for other purposes the hearing is closed. And what’s left is for us to have a motion and have discussion on the motion and vote on the motion. WATANABE: That was my intent, and I believe that was also Mr. Lim’s intent. But you know, I was also advised by Counsel that once you introduce it and if you really want to discuss it, you could deliberate over it, but -. IWASHITA: But we are not reopening the hearing for discussion; we are just reopening it for the purpose of submitting on the record. If on a motion there is going to be comments about what has been submitted, that’s going to be allowed, right, because we are able to explain our rationale. And if we want to make a comment on it, we are not prohibited from doing that, even though the hearing is not reopened, right, just for purposes of explaining our votes. WATANABE: Yeah. Is it clear? Clear as mud now? Okay. Yes, Mr. Woodward. WOODWARD: Well, if we are in a comment and discussion mode now -, is that where we are? Or we have to do something else first? WATANABE: We’d have to officially reopen it, and I guess, you know, if you are mentioning comment and discussion mode -. EXHIBIT A 8 WOODWARD: So we can’t comment unless we reopen the hearing. We just have to vote. Is that right? WATANABE: Pretty much, yes, yes. WOODWARD: Okay. WATANABE: I guess during deliberations we could discuss some of our points before the vote. WOODWARD: After a motion is made, then you can have discussion. WATANABE: Yeah, yeah, right. WOODWARD: Okay. WATANABE: So you would prefer to wait till then? WOODWARD: Right. WATANABE: Okay, okay. Let’s see, then. Now, do we have any objections to, again for clarification, reopening the hearing specifically to introduce the two items of correspondence? Yes, Mr. Iwashita. IWASHITA: I’m prepared to make a motion. WATANABE: Please. IWASHITA: Mr. Chairman, I move that in the matter of -. WATANABE: These are consolidated, yeah? So it would be for all three. IWASHITA: The first three items -. WATANABE: Right. IWASHITA: On the agenda, on today’s agenda referencing Kohala LLC, that the hearing on those matters be reopened for the limited purpose of admitting the April 7, 2008, letter written by Mr. Lim, the applicant’s attorney, to Honorable Angel Pilago, Chair and Members of the Committee on Planning, and the March 5, 2008, letter prepared by Mr. Yuen, which has been circulated to the Commission together with this letter and only for that purpose. SIRACUSA: Second. WATANABE: Okay. It has been moved and seconded. Do we have any discussion on this? Ms. Bowman. EXHIBIT A 9 BOWMAN: Question, please. Mr. Yuen’s letter is being circulated? I haven’t seen it. HAYASHI: Excuse me, Mr. Chair. WATANABE: Yes. HAYASHI: We are making copies for the Commissioners, and you should be getting it shortly. BOWMAN: Okay. I’d like to see it before we have our discussion. Thank you. SIRACUSA: Could we maybe, when they are ready, at that point take a 5-minute recess to allow us to review that? WATANABE: Yeah, why don’t we go ahead and do that? We have a live motion on the table. But before we enter into discussions, why don’t we take a recess, so that -. Yes, Mr. Iwashita. IWASHITA: Mr. Chair, if I may. I’d like to suggest, you know, my motion is for the limited purpose of just getting the letters in -. WATANABE: Right. IWASHITA: So it seems like we can vote on that; and then we can have a main motion on the substantive thing, and then we can discuss the letters at that time, if Members of the Commission want. WATANABE: So you’d like to have a vote on that -? IWASHITA: It’s two levels, yeah. This is just a procedural matter. It’s real -. WATANABE: Yeah, but I think that Ms. Bowman’s point is she wants to see the letter before she even votes. Is that correct? BOWMAN: Not to open the hearing, no. I mean, I’ll vote to reopen the hearing, but I’d like to see the letters before we have a discussion. We can vote. IWASHITA: Basically the suggestion is that we vote to allow it in, we take a break, we can look at it then legally as part of the record, and then we come back after the break and we can have a main motion. WATANABE: Okay, okay. Yes, Mr. Woodward. WOODWARD: Mr. Chairman, yeah. I think basically we are voting to admit these letters into evidence, and that doesn’t necessarily reflect the fact that we’ve had a chance to review EXHIBIT A 10 them entirely. They are just going to be put into evidence.And I don’t have a problem with Mr. Yuen’s letter being put in. We do have Mr. Lim’s letter here. So I think we can go ahead and vote on it, and then we can discuss the merits and then make a vote on these matters of substance. What we are doing is talking about a bunch of poppycock as far as I’m concerned, procedural items that have little importance to me. WATANABE: Okay. Any other comments? Mr. Darrow. DARROW: I was informed by Norman that we don’t actually have to take a vote. But it would be up to you. He just said roll call, I mean, just a -. WATANABE: Oh, okay -. DARROW: Voice call. WATANABE: Okay, all those in favor of reopening for the limited purpose of introducing the correspondence, please say aye. COMMISSIONERS: Aye. WATANABE: Any opposed? Okay, so the record shall reflect that it’s unanimous. And with that, well, it looks like they are passing out or about to pass out the copies now. Why don’t we take a recess, so that you all would have some time to digest what’s being circulated and we’ll reconvene in, what, about 10 minutes? RECESSED The Chair called a recess at 9:47 a.m. RECONVENED The meeting reconvened at 10:00 a.m. WATANABE: Will the Planning Commission meeting please come back into order. Seeing as the motion was to reopen for the limited purpose of introducing the two correspondence, I think it would be appropriate that, you may be seated, Mr. Lim, unless there are other objections cause I don’t think we’re going to, you know, introduce any more evidence. Yes. SIRACUSA: You know, at the last meeting there was a lot of questioning about ciguatera and the connection with development and that sort of thing. And I went and questioned John Kahiapo of DLNR, Division of Aquatic Resources, about that. And I am willing to share what I learned with the Commission. But that would be bringing evidence in, would it not? WATANABE: I believe -. SIRACUSA: So I’m not really allowed to do that. WATANABE: Yeah, I think you should refrain -. EXHIBIT A 11 WOODWARD: Well, I think you could probably, once a motion is made, that could be part of discussion, if I’m correct. Is that correct, Mr. Torigoe? TORIGOE: Well, the motion has been for a very limited purpose; so you would have to amend that motion. WOODWARD: Well, we’ve already voted on the motion to admit those documents, and that passed. SIRACUSA: But not the information that I got from Mr. Kahiapo. WOODWARD: But I mean, if we make a motion to one way or another on the first item on the agenda, the rezoning item -. WATANABE: Yet, then the discussion will be limited to whatever is within the record and not introduction of new material. WOODWARD: Okay. WATANABE: So are we clear on that? SIRACUSA: Okay. Actually, what I learned wasn’t a hundred percent favorable to my position anyways. But I felt I should in fairness bring it up. WATANABE: Okay, but let’s -. Yeah, go ahead, Mr. Torigoe. TORIGOE: Just for your information, if there is information that the Planning Commission would like to see in the record, you can always ask the parties if they would stipulate to put it in, you know. So that’s an option. WATANABE: That would be a separate motion, though. What he is saying is if you want to introduce that, we could reopen specifically again for that limited purpose, providing the two parties agree. Now, again, I appreciate the fact that you are trying to be very open about this even though, according to you, it doesn’t support your position. But I’m not sure that it would be fruitful given, again, the voting record that we’ve experienced over the past few meetings, as well as the fact that we are only an advisory position anyway. Thank you. BOWMAN: I have a question. WATANABE: Yes. BOWMAN: I agree. I think, you know, it may not be at this meeting. But at some point I would like to have more information because I, too, you know -. WATANABE: With regard to ciguatera? EXHIBIT A 12 BOWMAN: Yeah. So if we had another hearing -, I mean, because this is an issue that, I think, comes up a lot. And so it would be beneficial for the Commission to maybe have some kind of a professional -. WATANABE: Educational session on that? BOWMAN: Yeah, educational. Not today but at another meeting. WATANABE: Yeah, in the past they have provided us with educational sessions, you know, such as SMA, etc. And I think it’s reflected in the records that we may act upon that as time allows. TORIGOE: Mr. Chairman. WATANABE: Yes, Mr. Torigoe. TORIGOE: But I would caution the Commission, you know, that if you are dealing with contested case matters, that you really need to make your decision based on what is in the contested case record. And so I generally would discourage the Commission from gathering especially scientific expert type information that is not in the specific record for a contested case, okay? WATANABE: Okay. You’ve heard the legal version. SIRACUSA: Not really. I’m having trouble hearing today. TORIGOE: I’m sorry. Basically I just was saying that if -, this Commission handles both advisory and final decisions, and final decisions are all contested case matters; and especially for the contested case matters you need to make your decision based on what is on the record before the Commission. So generally speaking, I would discourage the Commission from, you know, having open workshops to get general background information about especially scientific type matters, which really should be presented by expert testimony for the specific case. WATANABE: So that it’s reflected in the record. SIRACUSA: Got it. WOODWARD: Mr. Chairman. WATANABE: Yes, Mr. Woodward. WOODWARD: If I might -, is it time to make a motion? Because I think that’s -. WATANABE: Yes, I believe -. EXHIBIT A 13 WOODWARD: The only choice we have left. WATANABE: Yeah, exactly. I would entertain a motion. WOODWARD: All right. Well, with regard to Item No. 1, Kohala LLC (REZ 866), I would move that we recommend to the Council that rezoning extension be provided. DOMINGO: Second. WATANABE: Okay. It has been moved and seconded. This is based on the original, though, yeah, for clarification purposes. Because we have had other motions to this effect where we discussed limiting the amount of residences and the other – what is it – alterations to other conditions. WOODWARD: Yeah, exactly. The main condition here would be what Mr. Lim and his clients have agreed to, and that is -, a main condition would be that it would be limited to 25 lots. WATANABE: Okay. So you are proposing that we forward a favorable recommendation to Council based on the previously submitted terms and conditions by Mr. Lim WOODWARD: Right. From the last meeting, yes. WATANABE: Okay. And you are in agreement to that, Mr. Domingo? DOMINGO: Yes, Mr. Chairman. WATANABE: Okay. So we have a motion that is live. Any discussion on this matter? WOODWARD: Mr. Chairman. WATANABE: Yes. WOODWARD: If I might. You know, I’ve expressed my concerns about the way this has been handled from the beginning. Basically, I think a lot of what Mr. Lim has put out in his th April 7 letter is valid, that is illegal taking, a number of other items. And I think what we are doing here is using the Planning Commission to try and forward a political agenda. And that agenda is some people feel that there was a mistake made back in 1997 when this was originally approved to allow smaller lot size along the Kohala Coast, and now the prevailing political opinion is, well, it all ought to be 20 acres.I don’t think that’s the part of the Planning Commission. Now, admittedly there have been, you know, a few -, they’ve dropped the ball, I mean, as far as various filings that had to be made in a timely manner. But those are relatively minor items that we generally tend to work around. But in this case I think we have been kind of a prejudicial attitude against this particular property, and again I think it’s because of a political agenda. And so that’s why -, I think we should not be the people that are going to, you know, downzone a small subdivision. If that has to be done, I think that should be done at the County EXHIBIT A 14 Council level. I don’t feel that’s our responsibility. And I don’t feel it’s right, to be honest with you. WATANABE: Any further comments? Ms. Siracusa. SIRACUSA: Actually, in a rezoning, all we are doing is making a recommendation to the County Council; and that is our responsibility, to make a recommendation, up or down, and it’s the County Council’s responsibility to make their own determination. I still feel that, you know, we are being pulled into a semantic whirlpool here. The consistent use of the phrase, “involuntary downzoning,” I don’t see it, first of all, as involuntary because it was the developer, the applicant and his predecessor, who dropped the ball on final plan approval (sic) and getting an extension in a timely manner. And so therefore, by default, you know, is how that happened. And to say “involuntary” makes it sound like eminent domain, which it’s not. That’s one point. The downzoning part is it’s not like we are taking a property that was zoned to a higher density for a long time, and then arbitrarily decided to downzone; this is a reversion to its original zoning, which was allowed for in the original permit, which stated that if the applicant did not do what they were supposed to, then that could happen. And the applicant had agreed to that, to those terms and conditions at the time, as they all do. So by that token, it’s not involuntary, either. I would like to -, on the -, you know, Mr. Lim uses the phrase, th “downzoning,” in his second paragraph of that April 7 letter; he used it seven times. And it reminds me of the, you know, motto that if you say something often enough, people would believe it, whether it’s true or not. And I see that happening here, the consistent use of the phrase, “downzoning,” which you will note in the actual application that term is not there; it is extension of time to secure final subdivision approval. Mr. Lim’s contention in “A. Nothing Has Changed,” I would beg to differ with that in several respects. First of all, Mr. Rho pointed out in our last meeting that the previous Planning Commission that approved this zoning in the first place did not have the full archaeological survey when they made that approval. Some of the sites had been marked on their maps, but not all of them. And so they did not have the complete picture. Also at that time the North Kohala Community Development Plan had not been worked up. And as Mr. Yuen has pointed out in the th March 5 letter to Angel Pilago, there have been changes to the General Plan that definitely affect this area in terms of viewplanes and scenic beauty. So, yes, there have been changes. So I dispute that contention that Mr. Lim made there. I would also like to point out the opinion that he got from Professor Callies. No. 1, it’s still an opinion and is valid as anyone else’s opinion, including Mr. Yuen’s or mine or Mr. Woodward’s. It seems to me, in looking through the packet, that if this is everything that Mr. Lim presented to Professor Callies, he did not give Professor Callies everything. The quotations, or the part of the General Plan that was changed about the scenic view that Mr. Yuen mentioned, that’s missing. The information regarding the Community Development Plan for North Kohala is missing. The topographical map that we saw last time, showing the gullies, how unbuildable a lot of the area is on that acreage and the location of all the archaeological sites that are known, that was not given to Professor Callies, either. And therefore, I would tend to dismiss Professor Callies’ comments and interpretation based on the fact that he did not have the full amount of data on which to base EXHIBIT A 15 his decision, and therefore he based it on very carefully selected material that Mr. Lim presented to him. Thank you. WATANABE: Any further comments? DOMINGO: Mr. Chairman. WATANABE: Mr. Domingo. DOMINGO: Thank you, Mr. Chairman. I seconded the motion, and obviously it’s because I think what Mr. Woodward had emphasized with regard to this issue before us, I support it totally and I agree with him. I agree strongly that the doctrine of fairness has been breached, you know. We’ve considered many times applications for extensions – in fact, extensions upon extensions. And this Commission has not been as critical to those extensions as we have been on this particular issue. And some of the information, as stated by a previous speaker, with regard to being omitted, the Kohala Development Plan has not been adopted, and some of the concerns that were expressed have not totally been adopted as a policy statement with regard to the development of that particular area. In my opinion, as I stated, I support very strongly that -, what changes have happened there that would warrant the downzoning and the revocation of the zoning? To me, nothing. The General Plan has not been changed. There have been opportunities for the General Plan to be changed; and it has not changed one bit. The policy elements for development along that coast have not been changed also. So you know, why all of a sudden the decision to revoke the zoning and the SMA Permit has come out? And that’s why I strongly emphasize, you know, the doctrine of fairness totally has been breached because of the part of -, the applicant has not been given fair consideration in their application. Thank you, Mr. Chairman. That’s all. WATANABE: Mr. Woodward. WOODWARD: Mr. Chairman, thank you. Yeah, exactly. The problem here I think is an issue of fairness. And I hate to say it, but the Planning Department has not worked with the applicant at all. We’ve been through several meetings, and we’ve encouraged the Planning Department to try and work out a compromise with the applicant. The applicant has volunteered to reduce the number of lots from 50 to 25. There has been nothing from the Planning Department other than, you know, my way or the highway. And it really is an issue of fairness. And I think what’s going to happen here, if we vote this down, they are going to have a contested case, they are going to take it to the court, it’s going to come back to us. And to be honest with you, they are going to win. There is no question in my mind because this has not been a fair process. WATANABE: Any further comments? Mr. Iwashita. IWASHITA: Mr. Chair, my view is that we as a body -, or my view of my role in this body is that I need to apply the proper standard. And there has been discussion about fairness; and you know, there’re no allegations that our rules are not fair. It appears that argument has been made that somehow, in applying those rules to this case, that the result is not fair apparently EXHIBIT A 16 to the applicant. And what we are considering on this motion is the extension of time that was provided in the original rezoning ordinance. And there is no dispute in the record that those time limits were not met. None. Absolutely none. There is no dispute in the record that I can see, you know. And so our role is to decide whether or not there are sufficient circumstances at this time in order to grant an extension of that time. And as part of that, we have the discretion to consider other matters. And the Director has made a clear record, as I see, that circumstances have changed since the original granting of that rezoning. And the rezoning ordinance is clear that if the applicant, the land owner, did not meet the time deadlines specified in there, that the consequence could be basically the loss of the zoning. It’s clear upfront. So you know, as a speculator -, and as far as I’m concerned, any development involves speculation as to what the economy is going to be like, what the community’s views are going to be like. You know, the General Plan is not a static document; it changes. The community’s involvement in all of that, which we are part of, that all changes. So the developer, in getting the original rezoning, basically had the right to go forward and complete the development within the time limits. And I really see no abuse of discretion by this body or the County Council ultimately who is going to decide on these matters. Not that, you know, the result of all of this over all of this time is a decision that we are not granting an extension; and that under the terms of the original rezoning it is specified, made very clear to the developer, that one of the risks of this potential development is that it’s not going to happen. So it really behooves me a lot to think that, you know, this argument is made that, sure, the developer is going to think it’s unfair; anybody that owns land in this situation is going to think it’s unfair. But the question is not whether or not ultimately it’s an unfair result to the applicant; the question is whether or not we have followed our rules, which are fair on its face – otherwise we couldn’t be here – and we’ve applied them. In the proper standard we have discretion. And the record -, there is a burden on the applicant to establish in the record good reasons for the extension; as far as I’m concerned, that has not been met, that the preponderance of the record shows that the denial of the extension is a proper decision in this case. And I for one don’t think that – and I hope – that the court would sustain our exercise of discretion in this matter. It is a discretionary matter. And as Mr. Yuen points out th in his March 8 (sic) letter, which was made part of the record, you know, the fact that this continues to be a discretionary matter, you know, really takes out all of this taking arguments in terms of how we are proceeding in this matter. And I find it very disturbing -, well, let’s, I’m taking a step back. If in fact the arguments made by the applicant are correct, then – and one of the arguments being that, well, we have this original rezoning, you really can’t take it away from us because it’s never been done before although the law and the rezoning ordinance itself clearly provides that we can do that, that it can be done, right – and if we buy into this argument that, well, we’ll be the first one, we’ll be the first one, so it’s unfair and you can’t do it, then we should be very, very careful in the future about granting anyone any rezoning; because in fact if we buy that argument, we can never take it away. And that is not what the law is. Sorry. And that’s not how we pass any rezoning. Every single rezoning we pass says this can be taken away. So I for one don’t see it as plausible frankly, you know, to say that, well, there can’t be a first time. Professor Callies’ letter basically is saying it’s never happened before; so it’s unfair? It just boggles my mind that the fact that the law provides it can be done, but the fact that it hasn’t been in the last 60 years or however long we’ve had the zoning laws, that that bars us from implementing the law? That cannot be. And if you take that argument to the Hawaii Supreme Court, I doubt that that can be a plausible EXHIBIT A 17 argument that the law cannot be applied because it’s the first time and it would be unfair to the developer. You know, it basically would handcuff anything that we do. As far as I’m concerned, then we should pass only those developments that we are certain will be done and not be speculated upon over years and years and years and years and years and years, and then be turned over and on basically just speculative purposes, and nothing actually gets done. So that’s what we are really looking at. And it is very precedential. I think that in the end -, well, my feeling is we should prevail; we are properly exercising our discretion under the terms of the rezoning ordinance itself and under our fair rules, and the rules have been applied fairly in this case. Thank you. WATANABE: Thank you. WOODWARD: Mr. Chairman. WATANABE: Mr. Woodward. WOODWARD: Well, first I would like to say there is a fundamental difference between law and justice, unfortunately. That’s just the way it works. The law is not always right. And you mentioned discretionary; yes, well, that’s the key point here. If you look at the discretion that the Planning Commission has used, as far as granting extensions – and I can’t name the number that we’ve looked at over the last year and half – where we had discretion, and they may be 5, 10 years, you know, out of compliance, and we worked with them. That’s not what happened here. What happened here was there was a political agenda to downzone this property because some people felt that the original zoning in 1997 was inappropriate. It was a political act. It was not a legal act. It was not fair. And as I say, there is a fundamental difference between the letter of the law and justice. And that’s the problem with our system. WATANABE: Ms. Bowman. BOWMAN: I just have a couple of comments. Being the new kid on the block, I haven’t been cognizant of the extensions and how many improvements were made or -; so I can’t address that. But in preparation for this meeting, I did review the Northwest Hawaii Regional Outdoor Plan. And you know, back when all this was happening it was a market driven economy. And if you look at the Plan and you look at everything that was planned, I think this is the first of many challenges we’ll have as far as growth. So you know, after reviewing the Plan and seeing that, yes, this is precedent setting, but I have just a gut feeling that this is – how can I say it -. WATANABE: Tip of the iceberg? BOWMAN: Yes. And I, you know, recommend that we do review these plans because we have a lot of work cut out for us that the previous -, you know, you talk about politics; I think that was back then. I think now rather than political, I think we really need to look at environmental and growth and capacity, building for this island. So and, that’s all I have to say. Thank you. EXHIBIT A 18 WATANABE: Mr. Iwashita. IWASHITA: Thank you, Mr. Chair. You know, politics I guess is relative. And we witness the effects of politics in Puna and all of those substandard subdivisions that were done way back when, and we are challenged today to deal with all of that. And from my view those are political acts. And so, I guess I agree with you, Commissioner Woodward, that there is politics involved in these things to some level; and I guess it’s just a matter of semantics or definition. The perspective expressed, just expressed by my Fellow Commissioner about the emphasis that we need to look at, I agree with that. I had a conversation with a friend of mine about our Commission matters. And before those substandard subdivisions, it was the politics of yes, right? Let somebody make some money, cut some land on paper, sell if off, and let the consequences be whatever the consequences are going to be. And the suggestion from my friend was, you know, this should really be the politics of no. When we have development proposals brought before us, they should be very seriously scrutinized. Developers need to, you know, meet the community standards and what is necessary to protect the aina and what we have because really we don’t – we are an island – we don’t have really anything else, we have no place to go. And actually with global warming and all that I don’t think we want to go anywhere; this is a good place to be, given all of that. But you know, it’s a -, I thought that was significant, and I thought about that. You know, it’s like we have to be very deliberate about these things; and that is going to be part of how I view my role in this process. WATANABE: Mr. Domingo. DOMINGO: Thank you, Mr. Chairman. Granted in any rezoning ordinance, should any of the conditions not be met, it shall be reverted back to its original zoning; and of course any developer is aware of that. And there are rules and policies to which we must follow to enforce those conditions that are contained in the ordinance. As I indicated, the doctrine of fairness is uppermost in my mind of a private -, throughout my life in all my dealings. And I for one certainly sense that the doctrine of fairness has been breached. Granted the laws and the policies are there and they should be followed and they have been followed, and that’s why we are here at the point that we are. But during the whole process there is a point in time where the discretion, the discretion of powers and the discretion of those individuals who make the decision, comes in, and that is where the fairness doctrine comes in. What I’m saying is that not only this Commission, the Council and even other jurisdictions find that there are times when you feel that the doctrine of fairness has not been meting out to individuals. And that is only because of the judgment and the decisions of individuals; it’s not because the law is flawed. It is the ability of the individuals and the powers that may be that interpret those laws and enforce it that is the problem. It is individuals with discretionary powers in their performance of their duties make what I would refer to as unfair judgment and decisions. And that’s -, as I look at this issue, I certainly find that in it. And I think as we deliberate -, we’ve deliberated many times, as I stated, there were times that this Commission has often gone beyond their means and considered applications for extensions of times and has granted them. I found no fault in that. Those decisions were made based on the information that was given us and based on what we felt was fair for that individual or for that applicant. And that’s why the decision was made as it was. And you know, what I’m saying, again, is, with respect to this particular issue, I don’t see that it has happened. Thank you, Mr. Chairman. EXHIBIT A 19 WATANABE: Thank you. All right, I believe we’ve all -. Yes, Mr. Woodward. WOODWARD: Just one very brief comment. I think, you know, to speak to Mr. Iwashita’s comments about zoning, I look at our role as being proactive, that is providing guidance for the future, not going back on decisions made in the past. And I think that calls into questions, fairness and a number of other issues. But certainly I don’t think you’re going to find anybody zoning in North Kohala or South Kohala, or getting rezoning for anything at this point. But to disallow somebody who previously had a zoning change and then to try and downzone that, I think, violates the fundamental principles of fairness. I think we’ve got to be proactive, not retroactive. And this just doesn’t smell right; it doesn’t pass the smell test to me. WATANABE: Mr. Iwashita. IWASHITA: I know my olfactory sense is a challenge, but I don’t need to challenge that much. I want to be fair to the people of this island. I want to be fair to the land. And fairness is not any personal, individual or entity’s right; it’s a balance. We are balancing here. And that’s why we have discretion to make this decision. And I agree with Commissioner Woodward about being proactive.I think we are being proactive. We are taking all the relevant matters into consideration. And in fact, what we are doing is enforcing the decision that was made in the past; that decision said if you don’t do it in this time, it’s over. It’s over. WATANABE: Okay. All right, I think we’ve made our positions abundantly clear. And it’s clear from these discussions that nobody has had a change of heart from previous meetings. So I don’t know that we’re going to gain anymore by discussing this any further, unless someone has something really pressing that they’d like to express. For myself, I think I’ve been clear on my position, and I think my only regret really through this entire process is that we weren’t able to arrive at some kind of compromise, and that I sense that this decision really ultimately is going to be decided in the courts. But with that, if no one else has any further comments, Mr. Darrow. DARROW: Thank you, Mr. Chairman. The motion before us is to send a favorable recommendation to the Hawaii County Council, adopting the applicant’s proposed amended conditions, which are listed within the March 18, 2008, submittal submitted by the applicant. With that, I’ll take the roll call. Commissioner Woodward? WOODWARD: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Alameda? ALAMEDA: No. DARROW: Commissioner Bowman? EXHIBIT A 20 BOWMAN: No. DARROW: Commissioner Iwashita? IWASHITA: No. DARROW: Commissioner Siracusa? SIRACUSA: No. DARROW: And Mr. Chairman? WATANABE: Aye. DARROW: The motion does not pass, three ayes to four noes. WATANABE: Okay. We agreed that we would vote on these separately. So we have, again, in a related issue, Agenda Item No. 2, which is Kohala LLC, SMA 379, amendment to Condition 4. The Chair would -. (Chair had brief discussion with Mr. Torigoe.) Okay, I’ve been informed that procedurally maybe I should ask if anyone would be interested in making a negative motion to Agenda Item No. 1. We had a positive motion, meaning a positive recommendation, and that did not pass. SIRACUSA: If anyone had, intends to vote differently, then I don’t see what purpose it would serve. WATANABE: Yeah, I tend to agree. But procedurally we offer you that choice -. TORIGOE: Right. WATANABE: If you want to go through the motions. TORIGOE: Yeah, Mr. Chair. That’s all I’m suggesting, Mr. Chairman, is that there be an opportunity; and if it’s clear that nobody wants to make the reciprocal motion because it’s clear that there isn’t five votes either way today, then you just want the record to reflect that. WATANABE: Okay, thank you. SIRACUSA: Okay -. WATANABE: Yes. SIRACUSA: So I’ll make the reciprocal motion then, if that’s -. No? We don’t -. EXHIBIT A 21 WATANABE: No, it’s just technical, I guess; the record reflects that we don’t have the votes either way. So let’s move along to Agenda Item 2. And shall we agree that we won’t have to have a reciprocal motion whichever way whoever makes a motion? So the Chair will entertain a motion on Agenda Item No. 2. Yes, Mr. Iwashita. IWASHITA: Thank you, Mr. Chair. I move that with regard to Item No. 2, Kohala LLC, SMA 379, amendment on Condition 4 (time to secure final subdivision approval) of Special Management Area Use Permit No. 379, etc. that the request for the amendment be denied. WATANABE: Is there a second -? SIRACUSA: Second. WATANABE: Okay. We have a motion that is live. Do we need any further discussion on this? WOODWARD: I think this horse is dead. WATANABE: Yeah, okay. Mr. Darrow. DARROW: Thank you, Mr. Chairman. The motion before us is to deny the amendment request to Special Management Area Use Permit No. 379. With that, I’ll take the roll. Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner Bowman? BOWMAN: Aye. DARROW: Commissioner Domingo? DOMINGO: No. DARROW: Commissioner Woodward? WOODWARD: No. EXHIBIT A 22 DARROW: And Mr. Chairman? WATANABE: Nay. DARROW: The motion does not pass with four ayes and three noes. WATANABE: We have one final item. Anyone care to make a motion on that one, Agenda Item No. 3? IWASHITA: Mr. Chair. WATANABE: Yes, Mr. Iwashita -. Oh, okay, I thought I did mention it earlier; but for the record there’s no one willing to make or interested in making a reciprocal motion. Is that clear? Okay. Then let’s address Agenda Item No. 3, which is the Planning Director initiated revocation for Special Management Area Use Permit 379. IWASHITA: Mr. Chair. WATANABE: Mr. Iwashita. IWASHITA: Thank you, Mr. Chair. As to Item No. 3, Planning Director, SMA Use Permit No. 379, for revocation of Special Management Area Use Permit 379 regarding the Kohala LLC property, I move that the Commission approve the revocation. SIRACUSA: Second. WATANABE: Okay. It has been moved and seconded. Do we need any further discussion on this? I assume not. Mr. Darrow. DARROW: Thank you, Mr. Chairman. The motion before us is to approve the Planning Director’s initiated revocation of SMA 379. With that, I’ll take the roll. Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner Bowman? EXHIBIT A 23 BOWMAN: Aye. DARROW: Commissioner Domingo? DOMINGO: Nay. DARROW: Commissioner Woodward? WOODWARD: No. DARROW: And Mr. Chairman? WATANABE: Nay. DARROW: The motion does not pass, Mr. Chairman, with the vote of four ayes and three noes. WATANABE: And for the record, I don’t believe there is anyone willing to make a reciprocal motion. Okay. Mr. Lim, you’ll be obviously notified in writing, and I guess you have to carry on your battle with the Council. LIM: That’s correct. We will be going to the County Council, I think, next week. I wanted to thank the Planning Commission, all of Members, no matter how you voted, and the Planning Director. This is a hard one for me, hard one for Kohala LLC. We had to fight, and it’s my job to fight as hard as I can; you know that. So I hope that there’re no hard feelings on any side. I do appreciate the effort you guys put in, you know, regardless what your viewpoint is. I think everybody tried the hardest. So we appreciate that. So thank you. WATANABE: Okay. And then for the record, this will conclude the proceedings here on this item with the Commission, yeah? Okay. Thank you. Mr. Director. Mr. Yuen. YUEN: Well, I think it does on the rezoning. I think we have to discuss – not on the record here but – what happens with the SMA Permit. WATANABE: Oh. (Chair had brief discussion with Mr. Torigoe.) DOMINGO: What was -? Mr. Chairman -. YUEN: No, all I meant was that I take it that Mr. Lim is making a decision to take his request for a time extension on the rezoning to the Council and not keeping it here, not continuing to defer it here at the Commission level. LIM: That is correct for all three items. EXHIBIT A 24 YUEN: Well, the two SMA items, the final decision is made by the Commission. And I believe you have an opportunity to revote the request for a time extension under the rules. And the revocation also has not been absolutely denied. LIM: Yes, we would waive our opportunity to take a reconsideration. YUEN: Are you withdrawing your request for a time extension on the SMA Permit? LIM: No. YUEN: So what is supposed to happen with it? LIM: My interpretation is that your petition to revoke the SMA Permit has failed and my attempt to get a time extension on the SMA Permit has also failed for lack of getting five votes. So that’s what has happened. WATANABE: I think the question, Mr. Lim, though, is do we continue it to a future meeting, or -? You know -. LIM: The applicant -. WATANABE: Practically it’s almost moot because -. LIM: Yeah, the applicant -. WATANABE: The SMA will not come about without the rezoning. LIM: We have our own position on that. I won’t agree to that. But I will waive for the applicant the ability to take another vote because you failed to reach an affirmative vote either which way today. YUEN: I think we have to -, you know, there is a procedural issue on this that I have to discuss with Corporation Counsel, but I’m not going to waive the request for the revocation of the permit. Otherwise, we are in a bit of difficult situation because you are not -, the permit is not revoked until the Commission revokes it, until the Commission votes to revoke it. By the same token, it’s not in effect -, you can’t proceed under it because of the lack of a time extension. LIM: That’s our understanding. YUEN: So what happens to the permit? WOODWARD: Mr. Chairman, if -. EXHIBIT A 25 LIM: We believe the permit is technically still alive, but we can’t proceed with development. WOODWARD: If I might make a recommendation, Mr. Chairman, and I’ll ask Mr. Torigoe to comment on this. It seems to me that we ought to hold this vote on SMA 379 in abeyance until there is a decision from County Council regarding the rezoning. And by holding that Special Management Permit extension request in advance, that they not be able to act upon it until the rezoning question is addressed by County Council. I mean, is that reasonable, Mr. Torigoe? WATANABE: Mr. Torigoe. TORIGOE: Well, I suppose that’s an option if -, basically at this point both the attempt to revoke and the attempt to extend the time have failed at this point. But there remains the question of what happens to that SMA Permit in limbo. I suppose what could happen is that someone could, the Commission could basically put that revocation matter on hold until further moved on based on what may happen at the Council. I’m just looking at the rules right now to see if there is anything that would govern that. LIM: On the applicant’s behalf we’d like to finish things up, so we don’t have to come back anymore. WATANABE: Mr. Yuen. YUEN: If I could -, yeah, and I don’t want to rush Mr. Torigoe here. First, as far as Mr. Woodward’s suggestion, it’s fine with me; if any further action on the SMA Permit is put on in abeyance until the Council takes action on the zoning, that’s fine. What I think the effect of what has happened here is on a request for a time extension there is a provision in the rules that if it does not get a favorable vote on the first matter, on the first time it comes to the Commission, it can be brought to the Commission for reconsideration on the next meeting, and if it does not get five votes in favor the next time, then it is finally denied. TORIGOE: Yeah, and I think, you know, when you look at Rule 9-14, Revocation, it also says that the procedures shall be the same as provided under Section 9-11 F, which is what the Director was just talking about. So it seems to apply to both. And so basically -. YUEN: Then that’s fine. TORIGOE: Yeah. So if the Director would like to have this brought up for reconsideration one more time, that could happen. Or if the parties both would say, no, that’s enough, you know, these basically go away or it dies at this point. And the Director could come back and move again for revocation. And really if the applicant wanted to come back and make another application for an amendment based on changed circumstances such as a different rezoning, then that could be brought as well. WOODWARD: Mr. Chairman -. EXHIBIT A 26 WATANABE: Are we in agreement in that, procedurally, Mr. Director and Mr. Lim? Does that sound fair? So both parties have an opportunity to reintroduce at a later date. LIM: We wouldn’t agree that that can happen; we won’t stipulate to that. If he can do that, or we can do that, then that’s something we’ll address as a later stage. I think at this point in time what I’m trying to do is to just try to -. WATANABE: Close it out. LIM: Capsulate everything, close it up. And if we are going to go to court, we get to go to court. WATANABE: Okay. WOODWARD: Mr. Chairman. WATANABE: Yes. WOODWARD: I had a question for Mr. Lim. My understanding is as things stand right now that the failure to approve the time extension essentially means that the SMA Permit at this point will become invalid -. LIM: That’s not my interpretation. We believe it’s still alive until revoked by the Planning Commission. WOODWARD: Okay. So you’d rather just leave it like it is than to have us hold this in abeyance until you get the rezoning application through Council; you’d just like to leave it like it is? LIM: That’s correct. And it does also, like I said, put all the legal issues in one basket once the County Council takes final action. WOODWARD: Okay, thank you. WATANABE: Mr. Yuen, your comments, so we are clear on how you would care to proceed because I sense that you wanted to somehow arrive at a conclusion on the revocation. YUEN: Well, I always like the Commission, if possible, to come to a decision by five votes whether it’s something that the Department and I are advocating or not. And there is a possibility of the Commission making a decision on both the SMA Permit and the revocation. So, there is not a big rush on it in a sense that if the Council enacts a zoning that would not allow 50 units, then the SMA Permit is not valid -. WATANABE: It would have to be revised -. EXHIBIT A 27 YUEN: It would have to be revoked. So it’s okay with me to defer further action until the Council acts on the zoning; but as far as saying that no further action would be taken on the revocation, no, I -. WATANABE: You want us to still have a -? YUEN: Yeah, if Mr. Lim is not willing to agree simply to defer action, then I would like to do what the rules call for in the case where there aren’t five votes either way; and that is that there is another opportunity to revote both the request for a time extension and the request for revocation. WATANABE: Okay. Mr. Lim, this is how I’m envisioning it. For whatever reason you do not get a favorable decision at the Council level, then obviously the SMA Permit would not match up with the then-existing zoning. So the SMA would be invalid anyway, and we could respond to it. And revocation of the SMA would not preclude you from contesting the Council’s decision in court anyway; and depending upon the court’s final decision all of this may be moot anyhow. So if you would agree to – how shall I put it – hold in abeyance the decision on the revocation until the Council makes their final decision, maybe that’s the best that we can achieve it at this point. LIM: On the applicant’s two actions, Agenda Items 1 and 2, we’ll waive our right to have a revote and we’d like that to go forward. We would like the same thing to happen to Agenda Item No. 3, but I think that’s the Director’s call since he is technically the applicant on that action. We are the applicant on the first two actions; so we are able to waive our right to take a revote. For your information, if this matter does go to litigation, then I’m going to be resisting any attempt to revoke the SMA Permit regardless of what happens with the zoning. WATANABE: Okay. Okay, so then can we agree then we will defer action on the revocation until after the Council’s vote? IWASHITA: Mr. Chair. Oh, I’m sorry. WATANABE: Yeah -. YUEN: Well, I would agree to that; I don’t know if Mr. Lim is going to agree to that. If he doesn’t agree to that, then we have to simply follow the rule on having a revote on the revocation. WATANABE: Give me a second. Would you agree to that, Mr. Lim? LIM: No. We’ll go with the rules. We don’t agree. WATANABE: Okay. So then if you don’t agree and we are going to go with the rule, that would mean it would be agendized at the next meeting? EXHIBIT A 28 TORIGOE: Well, Mr. Chair, basically it says that the applicant – or in this case the Director – may, within 10 calendar days after receipt of notice of the denial – that is, you know, considered as denied denial – then within 10 calendar days of that he can request reconsideration of that decision. Upon such request, the Department shall place the application on the agenda for its reconsideration at the next meeting. And then if you fail to render a decision by a majority vote at the next meeting, then it’s considered as denied. WATANABE: Yeah, but then you have a double negative. TORIGOE: Well, that’s -. WATANABE: We’ll be voting for revocation, which is a negative, and then you get, you know – I may be jumping ahead, you may be able to get the votes – but if we are unable to achieve the votes, then we have a double negative. Then what does that mean? We are back to where we are. TORIGOE: Yeah, well, it puts you back in the status quo, basically. WATANABE: So because -, okay, now, because Mr. Lim has not agreed to this, then so I guess formally you should within 10 calendar days make the request, and then we can agendize your revocation for the upcoming West Hawaii Commission meeting. Is that correct? YUEN: Yes. Actually, the 10 days would refer to the formal notice from the Department to the Director of the -. WATANABE: Yeah, okay -. YUEN: Actually, there is a letter that the Commission signs that states what the action is, and then from that point the Director would have 10 days to request their reconsideration, and then at the next meeting following that the request would be agendized. I believe the time frame is such that that would be the next – the agenda has gone out, I believe, th for the May 8 meeting, and the 10 days, of course, if we are being very technical about this, the 10 days have not started to run yet – but they would be then agendized for the June, I mean, May nd – what is the – May 22 meeting, yes. WATANABE: Okay. Mr. Iwashita, you had some comments? IWASHITA: I’m trying to understand. So we are finished with the 90 days? Is that basically where we are? And we have no decision; so it’s basically a negative decision? Is that where we are? WATANABE: No, I don’t believe so; we only had the first vote on this. They agreed to extend. So actually, what we are saying is we get to vote on this one more time at the June (sic) West Hawaii meeting and that is only in regard to Agenda Item No. 3, the Director initiated revocation. The applicant has already conceded that they forfeit their opportunity to ask for another vote on Agenda Items 1 and 2. So 1 continues to the Council and No. 2 is dead. EXHIBIT A 29 IWASHITA: I guess I’m not understanding. As to 1, that’s the zoning matter; so we are advisory, that goes to Council. I see -. WATANABE: I’m really sorry. Can we take a recess? I really got one urgent -. IWASHITA: Sure. Fine. WATANABE: Please. Let’s take a 5-minute recess. RECESSED The Chair called a recess at 11:02 a.m. RECONVENED The meeting reconvened at 11:20 a.m. WATANABE: Will the Planning Commission meeting please come back to order again. Thank you for allowing me to have that recess. Well, Mr. Torigoe and Mr. Yuen, have we ironed out the procedural issues? And what is the conclusion? Either one. TORIGOE: Thank you, Mr. Chair. WATANABE: Okay, Mr. Torigoe. TORIGOE: It’s pretty clear that at this point with respect to the Planning Director’s request for revocation, that today you were unable to come up with five votes either way on that. The time period for the initial decision has elapsed and there was no further request for extension of time. So we are in basically 9-11 F. 3, which talks about reconsideration. And within 10 calendar days after the Director gets receipt of the notice of the denial, then he can request reconsideration and it will come up on the agenda at your next meeting after that. Then if you fail to render a decision at the next meeting, then the request is considered as denied. WATANABE: Okay. So then if it fails, the revocation is considered denied? TORIGOE: Right, at the next meeting. WATANABE: Okay. But of course, this is jumping ahead, right? So, and I may have misspoke earlier; I think I did mention June, but this would be in reference to the May meeting in West Hawaii that we would be addressing this, if the Director so decides. Yes, Mr. Woodward. WOODWARD: Mr. Chairman, I had a question for Mr. Torigoe. We had two motions that were 180 degrees opposite; one was to approve the time extension and the other was the Director’s proposal to revoke the SMA Permit. Now, the fact that the time extension didn’t pass and the Director’s initiative to revoke the SMA Permit also didn’t pass, are those two both going to come back? Or are we just dealing with the Director’s initiative to revoke? TORIGOE: Mr. Chairman. Thank you. I understand that the applicant, Kohala LLC, has waived their right to ask for further reconsideration of this matter; so that will not be coming EXHIBIT A 30 back on your agenda. The result being at this point that application, Agenda Item No. 2, is considered denied at this point in time, which basically makes it a final and appealable decision with respect to the request for an extension of time. WOODWARD: Thank you. WATANABE: Okay. So we are all clear on this, then? Ms. Siracusa. SIRACUSA: Yes. I would like to know if or when the Director’s initiated hearing on the revocation of the SMA Permit comes back to us -. WATANABE: The rule requires that it come back at the next Planning Commission meeting -. SIRACUSA: Right, right, I understand that. What I would like to -. nd WATANABE: Which would be the May 22 -. SIRACUSA: I understand that. What I’m asking is if we could have someone, an expert witness, come to talk to us and explain about the relation between development and ciguatera, if any, as an expert witness, because that relates to SMA. WOODWARD: Mr. Chairman. WATANABE: Yes, Mr. Woodward. WOODWARD: I would think that would require reopening the hearing, which we are really kind of low to do right now. And I think Mr. Lim is right in wanting to have this settled because it seems like this body is not going to be able to act one way or the other, to be quite honest with you. And he wants to take it to court, which is his prerogative. So I would -, you know, we can do anything we want, but I don’t think it’s going to change where we are, to be quite honest. WATANABE: Ms. Siracusa. SIRACUSA: I’m willing to go with whatever the rest of the Commission wants. I understand that we, you know, closed the hearing on it. I just thought that possibly, if it’s going to come back again, that some of the Commissioners might want to have more information on that topic. WATANABE: Okay. And along those lines I might want to remind you what Mr. Torigoe pointed out that especially in cases of contested case hearings you should rely on the evidence that is presented at that specific contested case hearing, not necessarily taking this Book of Knowledge and saying, okay, I’m going to apply it to another hearing where it was not offered as evidence. So I don’t know how germane having that discussion would be for this particular item. Mr. Iwashita. EXHIBIT A 31 IWASHITA: Thank you, Mr. Chair. I just wanted to clarify that – in my mind and for the record – that as to the Kohala LLC’s Item No. 2, basically at this point Kohala LLC’s option then, assuming it doesn’t ask for reconsideration after it actually gets the notice of the decision, would be to proceed under Chapter 91 for an appeal to the court. Otherwise, if it doesn’t do that, that’s the end of that. WATANABE: It’s my understanding they waived their right for a second reading; so we will not hear it again. Now, whether they are going to appeal it, you know, immediately or appeal everything together or -. IWASHITA: Well, I guess I’m looking at -. WATANABE: I don’t know that -. IWASHITA: I want to clarify under the -. WATANABE: That concerns us -. IWASHITA: Well, litigation has been discussed throughout this proceeding, or especially at the end of it; and so if under – what number is this -. LIM: Mr. Chairman, maybe I can make things -. IWASHITA: Nine-11 F. 5, well, you know, ending up in 5, if I understand it correctly, basically based on the representation of Mr. Lim that there will be no requests for reconsideration, then once it is denied and then you go to 5, and basically the denial is a final and appealable decision to the Third Circuit Court under Chapter 91; so that would be -, that’s my understanding that that’s Kohala LLC’s option on its request for the time extension. So I make that clear. LIM: I’d like to -, what I was going to say – sorry for interrupting, but I was going to try to maybe make it easier – is maybe what we’ll do is with respect to Item No. 2, if the Director is not going to waive the reconsideration, then we’ll do the same; and that way it keeps those two things tracking alongside, you know. I think it’s probably easier for the Commission and safer for me to -, if he’s going to keep his alive to reconsider, then I’ll keep mine alive to be reconsider also. So I do withdraw that waiver and we’ll both go forward to the next meeting. IWASHITA: Then I have a follow-up. WATANABE: Yes, Mr. Iwashita. IWASHITA: And that is under 3, 9-11 F. 3; the last sentence says “In the event the Authority fails to render a decision by a majority vote of its total membership at the next meeting, the application shall be considered as denied.” So I want to just -, my understanding of that is that changes the five vote majority requirement. That is if we only have five, a quorum of EXHIBIT A 32 nd five, at the May 22 meeting -? The rule says that “a majority vote of the total membership at the next meeting;” so whoever shows up you’re going to have -. WATANABE: No, it doesn’t say total membership present; it says total membership. You’re still referring to a super majority of five. You know, if -. IWASHITA: Okay, that’s what I wanted to clarify. WATANABE: Yeah, so it’s my understanding that for any decision to carry, you still need five. TORIGOE: I concur with that. IWASHITA: Okay. It wasn’t the clearest to me, real clear to me. Thank you. WATANABE: Okay. So, now I take it, Mr. Lim, that you’ve withdrawn your waiver; and so we will then reconsider Agenda Items No. 2 and No. 3 at the May meeting in West Hawaii. Right? Okay. So I think we’ve beat this one to death. Thank you. TORIGOE: Mr. Chairman, just to note that, Mr. Lim, he should, within 10 calendar days after receipt of notice of denial, request reconsideration formally. LIM: That’s right. My understanding is 10 days after we’ve received the written denial, we’ll file something. WATANABE: Okay. Thank you. The discussion ended at 11:30 a.m. Respectfully submitted, Noriko Sauer, West Hawaii Secretary EXHIBIT A 33