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HomeMy WebLinkAbout2022-08-18 Leeward Exh B (Items 4 Meneghetti PL-SMA-2022-000017) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT AUGUST 18, 2022 A regularly advertised hearing on the application of JOHN AND SHELLI MENEGHETTI (PL-SMA-2022-000017) was called to order at 10:07 a.m. in the West Hawaii Civic Center, Community Center, Building G, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Barbara DeFranco, Michael Dela Cruz, Zaheva Knowles, and Mahina Paishon-Duarte ABSENT AND EXCUSED: Clement"CJ" Kanuha III ALSO IN ATTENDANCE: Keyra Wong, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Jeffrey Darrow (Deputy Planning Director), Maija Jackson (Planning Program Manager), Alex Roy (Planner), Clinton Mercado (Planner), Janice Hata(Zoom host), and Noriko Sauer (Commission Secretary) APPLICANT: JOHN AND SHELLI MENEGHETTI (PL-SMA-2022-000017) Application for a Special Management Area(SMA) Use Permit to construct a two-story, 4,798-square foot, 5-bedroom, 4.5-bath, single-family residence, and related improvements which include a swimming pool, garage, and lanai, on a 0.38-acre parcel situated within the SMA. The subject property is located within the Lanihau Point Subdivision of Kona Bay Estates at 75-5434 Kona Bay Drive, approximately 0.7 miles from Kona Bay Drive's intersection with Kuakini Highway, por. of Kailua Airport, North Kona District, Hawaii, TMK: (3) 7-5-005:095. VITOUSEK: Okay, we'll continue to the next agenda item. Item 4, we have, the applicant is John and Shelli Meneghetti. Application for a Special Management Area, SMA, Use Permit to construct a two-story, 4,798-square foot, 5-bedroom, 4.5-bath, single-family residence, and related improvements, which include a swimming pool, garage, and lanai, on a 0.38-acre parcel situated within the Special Management Area. The subject property is located at the Lanihau Point Subdivision of Kona Bay Estates, 75-5434 Kona Bay Drive, approximately 0.7 miles from Kona Bay Drive's intersection with Kuakini Highway, portion of Kailua Airport, North Kona District, Hawaii Island, TMK: 7-5-005: Parcel 095. Okay, Alex will be doing our presentation. Go ahead, Alex. ROY: Good morning, Commissioners, Chair. I'm Alex Roy. I'm the Senior SMA Planner for the County. I bring before you today a Special Management Area Use Permit application, or SMA Major, for a single-family residence. Here is a location map. I put a red star on the site. You can see that it's just makai of the Old Kona Airport State Recreation Area and just north of Kailua Bay in the Kona Bay Estates Subdivision. 1 EXHIBIT B The applicant is requesting to construct a single-family residence on that 0.38-acre shoreline parcel. It's a two-story home with 3,017 square feet of interior space, 5 bedrooms, 4.5 baths, and various other rooms. Additional development includes the attached garage, lanai, swimming pool which will be about 56 feet by 8 feet, and of course residential-type landscaping. The total development area for the residents is 4,798 square feet. The home will be connected to the existing utility lines, sewer, water, electric, that are already established within the Kona Bay Estates Subdivision. Here is a County Zoning map. So you can see the subdivision there, kind of on the bottom of the screen in the RS, or Single-Family Residential, 15,000-square foot zoning designation. Just mauka of that is the Limited Industrial, which would be the Old Kona Airport, and actually Limited Industrial does include the recreation area. And then you have a Mixed Industrial Commercial zoning that would be across the road further mauka. The sandy area that you kind of see makai of that is a remnant of the mapping program, so really not indicative of the site conditions. So the site itself is outlined in red, and as you can see, it's one of the, it's the second to last lot in this subdivision. Here is the State Land Use. Everything is Urban. The LUPAG shows this entire area as Open. The subdivision is Open zoning. We see some Urban Expansion up in the center of the screen there and then of course Industrial zoning designation. So the entire area of the subject parcel and surrounding is Open zoning for the LUPAG. Here is an aerial photograph of the site looking from, you know, looking mauka. You can see that a majority of the parcels have been developed. One next door is still open. And it's outlined in red. Take note of the wall, that bound, you'll see a small green strip kind of at the base of the parcel; the wall which is a shoreline public access—and I'll talk a little bit more about that— demarcates that green boundary there. Here is another shot looking makai towards the ocean to give you some reference on how close it is to the ocean. You can see the lot is completely cleared and has been undergone a history of development starting with the creation of the subdivision back in 1951. Subsequent development included the establishment of the utilities, the construction of these retaining walls and boundary walls, and then of course some site grading that has gone on in the past. Here is a site plan. I kind of had to turn it a little bit just to show, so I put the west to north arrow to kind of give you some reference, but to your left would be the ocean and then mauka to your right. The shoreline, the certified shoreline, the applicant did get the certified shoreline, and that's in the thick red line. And then you see the public access kind of outlined in the shaded red. And then the 40-foot minimum shoreline setback is demarcated by the blue dashed line. So the applicant was able to establish the minimum 40-foot setback in site construction, you know, mauka of that. You have a full set of site plans, of course, presented to you as an exhibit. 2 EXHIBIT B So here is just a floor plan, first floor, kind of showing the layout, the garage, the great room, the lanai, the pool, to kind of just give you some reference. And then I added the cross section showing you the mauka views and makai views, so what you would see from the ocean and then what you would see from the road. Of course, the one on the bottom is from the ocean. I added this slide because I knew one of the issues in this area is public access. So the thick red lineapproximately, as best as I could do it on a poor map—approximates the location of that access wall. So a citizen or public can walk from one end of that subdivision unimpeded all the way across to the recreation area. On top of that the three other arrows are kind of the mauka- makai access. There are two that run through the subdivision, and they have easements and in fact have parking on the mauka end of that. At the furthest end near the project site, it's pretty open, and I'm going to show you a picture here that will kind of give you better idea. So you can see the project site outlined in red, and then the generous public access in this area with plenty of parking—you can see there's only two vehicles parked there—and numerous trails, and then one could pick up that coastal trail and walk all the way along that, along the boundary. You can also walk, there is plenty of room to walk makai of that wall; there is a significant space. So public access along the shoreline and mauka to makai access through the subdivision, are provided and are existent. Here is a view of the project parcel from the access road looking makai towards the ocean. You can see it very cleared, open, and the walls that were previously permitted and constructed and are existing. This is a view from the public access path looking mauka towards the access road and beyond, so this would be just on that, on that access wall. Here is a shot kind of looking west roughly across the project parcel, and you can take note of the wall access there, the shoreline access there. And if any of you were wondering what the Flood Zone D was, Food Zone D is actually levees, and they consider this to be a levee type of structure, so that's where the Flood Zone DI know it threw a few people off, so I just kind of wanted to touch on that. It's a very uncommon one, you don't see it very often, but FEMA has decided that this in their mind constitutes a levee. And then here is from the public access wall looking east down towards Kailua Bay to kind of give you an idea what the shoreline looks like naupaka, in this area there is very little sand, very rocky. Just a reminder why we are here. Typically, single-family residences are exempt actions in the SMA, but because of the change in law that happened under Act 16 in 2020, those single-family residences that are on a shoreline parcel now are considered development, and this, the evaluation was 1.7 million, which was above the 500,000 threshold, so in that case it became the SMA Major; if it had fallen under 500,000, it would have been an SMA Minor permit. So now 3 EXHIBIT B shoreline parcels are getting much more thorough review because of the changes to HRS 205A under Act 16. So the Director's recommendation for PL-SMA-2022-000017 is approval, with the stated recommendations. VITOUSEK: Okay, thank you. Applicant? Is there—applicant here? Are you representing the applicant? NICHOLSON: Yes. VITOUSEK: Okay, come on forward. Okay, would you raise your right hand? Do you swear or affirm to tell the truth on the matter before the Planning Commission? NICHOLSON: I do. VIOTUSEK: Okay, right on. Please state your name and the town you live in. NICHOLSON: My name is Winton Nicholson. I'm from Kailua-Kona, Hawaii. VITOUSEK: And would you like to, are you going to present at all? NICHOLSON: Helena is my brain, so VITOUSEK: Okay, okay, we'll just have you sworn in as well. Please raise your right hand. Do you swear or affirm to tell the truth on the matter before the Planning Commission? BRUBAKER: I do. VITOUSEK: Thank you. And please state your name and town you live in. BRUBAKER: My name is Helena Brubaker, and I live in Kailua-Kona, Hawaii. VITOUSEK: Okay, thank you. Have you received the background and recommendation reports from the Planning Department? NICHOLSON: Yes, I have. VITOUSEK: And do you agree with the recommendations? NICHOLSON: Yes. VITOUSEK: Okay, do you agree with the proposed conditions that they've put— NICHOLSON: Yes, I do. 4 EXHIBIT B VITOUSEK: Okay, anything further you'd like to add? NICHOLSON: We have nothing further to add. VITOUSEK: Okay. In that case, is there any public testimony that is signed on at this time? ROY: No, Chair, we have not received anything,no. VITOUSEK: Okay. Commissioners, could we a motion to close public testimony for this agenda item? KNOWLES: I move to close public testimony. PAISHON-DUARTE: Second. VITOUSEK: Okay, motion by Commissioner Knowles, second by Commissioner Paishon-Duarte. All those in favor? COMMISSIONERS: Aye. VITOUSEK: Okay, any opposed? No. Okay, Commissioners, are there any questions for the applicant or for staff? PAISHON-DUARTE: Sure. Thank you. I have a question about height. What is the actual, what is the height of the buildout of the two-story building? And then also—maybe this, the second question might be for the Planning Department—I'm wondering, what is this property's estimated buildout height, and then what is the height in comparison to the nearby properties? NICHOLSON: Thank you, Mahina. I cannot read with these glasses even that number [to Ms. Brubaker]what is that number? BRUBAKER: [Inaudible response] NICHOLSON: Twenty-three feet six inches. And the, it's basically the same elevation height as the neighbors; neighbors are a little bit taller on the north side by the roller skate rink there, as well as the two-story building on the left side, the south side. Did I catch everything? PAISHON-DUARTE: I think so. Can I ask the Planning Department to verify that information? ROY: Yeah, in my review of the majority of the homes in that area, they are two-story. And he is correct that the elevation kind of grades a slightly higher as you move south, so this is in line in my opinion, though, actually the one next door will be slightly higher. But, yeah, there is nobody that's over two stories in that area. PAISHON-DUARTE: Thank you very much. May I proceed with my next question? 5 EXHIBIT B VITOUSEK: Proceed. PAISHON-DUARTE: Thank you. I just want, in terms of title, I wanted to, because there is history of many kuleana landownersI'm not sure who I should direct my questions, but I'll direct it first to you both—is the title clear, meaning there are no outstanding claims of kuleana land? NICHOLSON: As far as I know, that is correct. PAISHON-DUARTE: Can I ask the Planning Department to verify ROY: Yeah, I didn't research that personally, so I could check into it. But, you know, when we do these applications, there is a clear ownership through Real Property Tax, and that's the check that we do to make sure that the applicant is actually the landowner. So, but as far as title, like I said, the subdivision was created 1951, so I didn't research further back than that PAISHON-DUARTE: Thank you. ROY: but I can look into that if that's something you want. PAISHON-DUARTE: That would be helpful, I mean as a good faith, it's just, you know, if you have something that you wanted to do in good faith, that would be wonderful. My third question—may I? Thank you. Let's see, so in the cultural survey assessment or the cultural assessment, can you, can you, did that include, did the SMA include a review of any burials or yeah. NICHOLSON: So I have actually, Matt, the archaeologist who did the survey for us. Shall we bring him up because he would be more VITOUSEK: Yeah NICHOLSON: appropriate for this question. VITOUSEK: that would be terrific. Please pull up a chair. Okay, would you please raise your right hand? Do you swear or affirm to tell the truth on the matter before the Planning Commission? CLARK: I do. VITOUSEK: Okay, thank you. And please state your name and town you live in. CLARK: My name is Matthew Clark. I live in Kea`au, in Puna District on the Island of Hawaii. Thank you. VITOUSEK: And just to clarify, you are all hereto represent the applicant, which is John and Shelli Meneghetti, correct? Okay. Go ahead. 6 EXHIBIT B CLARK: In terms of—so the question was about burials in the area yes, I did research as part of this work. There have been a number of inadvertent discoveries in the area. Typically, they are further north at the Old Kona Airport beach where many sets of human remains have come out and further south towards Kamakahonu where there is another sandy area. I didn't find any records within this subdivision inadvertent discoveries. VITOUSEK: And I have some information on that. There have been a few inadvertent discoveries in the vicinity, immediate vicinity, of this project from my time at SHPD; there was, right at Keiki Pond and then immediately north of this project, there is a lot and then open area, there was inadvertent in that area as well. CLARK: Yes. PAISHON-DUARTE: May I ask a follow-up question? VITOUSEK: Pleas, yep. PAISHON-DUARTE: So, is it part of this process whereby there will be a cultural monitor that will be retained during the buildout process? VITOUSEK: So, that is a possibility for a recommendation for a condition on something like that if it's necessary. ROY: Yeah, that would be something that the Commission would ask as a, to be placed as a condition. VITOUEK: And, Commissioner Paishon-Duarte, do you mind if I ask a couple follow-up questions on archaeology? PAISHON-DUARTE: Thank you. Yes, thank you. VITOUSEK: Sure. Matt, the site has been disturbed, right? CLARK: Yes. VITOUSEK: Is it, was it cut from the original level down to its current level, or was there fill added, or what, how, what was the nature of the disturbance? CLARK: To me, looking at it, is, about two-thirds of it is exposed bedrock on the surface with bulldozer tracks going across. In the Kailua makai corner, it's hard to tell, it looks like it was pushed to create the walkway, and they built up, they built the berm, like he was saying, a dike for flood control purposes, I guess. So it looks like, and fill may have been brought in with the sand, and they pushed everything to the front is what it appears to me. I did do, try to do trowel probes in the sand there, and it's kind of, it's mixed with topsoil material, as well as sand and gravel and concrete, and I could only probe down maybe two to six inches at the deepest spot. 7 EXHIBIT B VITOUSEK: About how many of those trowel tests did you do? CLARK: I just kind of poked around wherever I could in the sand just to see if there was any chance that there would be buried cultural deposits. VITOUSEK: Do you think there is a possibility of having like areas of where there is uneven topography where like the pahoehoe would dip down low enough where it could contain subsurface material? CLARK: I think it's very unlikely. The only spot is, again, in the Kailua kind of makai corner where there is, there are some rocks, but it appears that it was pushed in there to create that walkway next door. VITOUSEK: So, pushed in—is there, was there any testing where you did that can identify like fill on top of native soils or sand or anything like that? CLARK: No, we didn't do any formal testing. VITOUSEK: Okay. And then, if you don't mind, Alex, you think you could pull up page 38 on the PDF on the screen? Of the background report. Yeah, and if it's possible to zoom in on ROY: Is that the one you want, Chair? VITOUSEK: Yes. Yeah, I mean just in looking at that photo, we are looking at wind-blown sand deposits KNOWLES: Can you make it a little bit bigger? VITOUSEK: Okay, yeah, so we are looking at wind-blown sand deposits in an area that's got a pretty high concentration of burials. And I just want to know if there is any way that we can rule out the possibility that there is anything subsurface on this property. CLARK: I don't know that you can 100 percent— VITOUSEK: Right. CLARK: —rule out. VITOUSEK: Right. CLARK: Looking at it and having looked at other similar properties, I would say it's very unlikely, but I can't say 100 percent. VITOUSEK: Do you think like doing some formalized testing might give us indication that there is no, very, very limited possibility of that? I think we would be better off making that 8 EXHIBIT B decision if we had some—or would you be confident now with what you know having been out there saying that— CLARK: I feel confident that it's very unlikely. If you needed more evidence, we could do testing. I do believe it would only go to six inches till you hit where you couldn't dig anymore. VITOUSEK: Okay. CLARK: Looking at the area around, there is a lot of bedrock exposed. VITOUSEK: Okay. Even in the makai corner where there is some fill deposited? CLARK: I believe so, but I can't say for sure. VITOUSEK: Okay. And then I guess question for staff is on the SHPD review. Did SHPD take a look at this? ROY: No, we decided kind of under your—when you had advised us in the past to try to take a look, I looked at the site, I went to the site VITOUSEK: Yep. ROY: —and, you know, my experience as a geologist, I took a look at subsurface but then did review all the previous permits. There was an original SMA Major for the subdivision. There were Minors provided, and the only requirement was one of the Minors had asked for an archaeological monitor during development. So that's a possibility. But then subsequent SMAs did not ask for that. And then the house that was built next door did not have any monitoring or requirements. VITOUSEK: Okay. Are there any more questions, Commissioners? KNOWLES: I just had a, outside of the realm of the archaeological piece, I know, you know, we've had several conversations in my time, limited time as a commissioner, about emergency evacuation. And this property sits squarely in the tsunami evacuation zone. So, I think it's for the Planning Department,just in terms of consideringI noticed there wasn't much in the background report around this issue, but—ingress and egress and, as we are increasing density on this coastal zone, what does that look like? ROY: I believe that the tsunami evacuation has looked at the subdivision as a whole and assumed at full buildout that evacuation needs for this area. Kona Bay Drive is a private road, so only those that live in this area would be accessing, would be heading out to Kuakini Highway and then further mauka. But, you know, as far as a specific requirement for tsunami evacuation plan, there was none. So that's something that, you know, if you want it KNOWLES: Does the subdivision have one? 9 EXHIBIT B ROY: I'm actually unsure. KNOWLES: In your, based on your knowledge? NICHOLSON: I'm unaware of that. It's probably with the association documents, you know, their evacuation plan. Is that what you are asking? KNOWLES: Yeah, I think, quite frankly, I think it would be helpful for us to have a sense that there is some plan in the subdivision. DEFRANCO: So when, we can only ask questions, right? VITOUSEK: Yes. DEFRANCO: We can't talk amongst each other yet. Then I have to wait. VITOUSEK: Okay. DEFRANCO: Maybe as being there, as being residents there, or development there, having your home there, you could explain to everybody here that maybe isn't aware of the roadway in the way it connects to the other roadway, so you can explain to everybody here how you would evacuate and how few homes are actually there. I mean what you would see if there was an evacuation from where you are. NICHOLSON: Besides for vehicular access in evacuation, foot traffic you could just walk straight across into the Old Airport, and so there is only one road coming into a gate, which is separated Kamakahonu Beach and then there is the estate that stays there, the old Thurston estate, and right there is where the gate is, and that's the only access to the parcel for vehicles. So that would be in between the Jiffy Lube or whatever that's on that corner and the old West Hawaii, or the West Hawaii newspaper. DEFRANCO: Yeah, and so, that road goes straight up to the highway. Is that right? NICHOLSON: It does, it goes straight up to the Queen K. KNOWLES: I don't live in Kona, so NICHOLSON: Oh KNOWLES: you know, I'm not familiar. We are, we represent the whole west side, so. DEFRANCO: So what I was just trying to make clear is that evacuation in that particular area doesn't connect with any other subdivisions. It isn't like there would be a congestion right there going through your gate to get to the highways. Is that correct? NICHOLSON: Correct, it's only for the residents there in Kona Bay Estates. 10 EXHIBIT B PAISHON-DUARTE: Chairman? VITOUSEK: Yes, go ahead. PAISHON-DUARTE: Okay, thank you. So the makai, the fishery, nearshore fishery, makai of the proposed property is a favorite, that whole coastline is a favorite fishing area, recreational area. So, you know, in the background report it does state that approaches will be undertaken to assure minimal runoff, however, there are times when there is like big Kona storm comes in and there is unforeseen rain. So, can you please explain further what is going to be done to mitigate major rainy events if someone is not on site, on property, to mitigate the runoff that may occur and damage the reef, the nearby reef, and reef ecosystem? NICHOLSON: Let me just see what we responded here in our application. So we don't address this specifically, Mahina, but we will be using basic management practices with silt fence. Also, the entire property from point to point is depressed; it's actually lower, so—as you had seen that, that berry there that put us in the now category of Flood Zone Dso that little berm that is built up is about two feet higher than the property itself, so we are actually, we will be doing very well for protecting the space from contamination to spread. PAISHON-DUARTE: Thank you, that's helpful to see the picture again. NICHOLSON: Thank you. PAISHON-DUARTE: Yeah. VITOUSEK: Does that depressed area make this more prone to coastal flooding? ROY: In my opinion, no. VITOUSEK: It has to be pretty severe, huh? ROY: Really quickly, the idea of the D flood zone is that it's impervious, so if anything, if you had overtopping due to heavy, you know, rain event or wave event, actually, the water would be impounded within the parcel itself. It would be very difficult for it to flow back out into the water. And I think that's part of the reason why they made these walls so robust in that area, was kind of a tradeoff to allow for development, but then there has got to be a barrier. And then remember that there is a whole suite of vegetation that would allow to, you know, to help to prevent that. But it in fact impacts through heavier event would be more so on the residence than for the nearshore area or shore. PAISHON-DUARTE: Thank you. VITOUSEK: Okay. Any further questions? Would anyone like to make a motion? Keep in mind that we can amend any motion that's made. [Commissioners briefly talking over one another about who would make a motion]Well, if you want, you can just make the motion, the 11 EXHIBIT B primary motion, and then we can discuss, and then we can come up with any conditions that we'd want to add, and then we can amend the motion after. KNOWLES: I move that the application for a Special Management Area Use Permit, Docket number SMA 2022-017, be approved based on the Planning Director's recommendation, which shall be adopted. VITOUSEK: Okay. DEFRANCO: I'll second the motion. VITOUSEK: Motion by Commissioner Knowles, second by Vice Chair DeFranco. Discussion? PAISHON-DUARTE: Yes, thank you, Chair. I would like to propose to add a requirement for a cultural monitor during buildout, and also, I don't have—maybe you can help me, Chair the technical language but something to the effect of a requirement of additional soil deposit testing. VITOUSEK: Are you thinking cultural monitor versus archaeological monitor PAISHON-DUARTE: Can you walk me through the difference, the primary difference? VITOUSEK: Sure. The archaeological monitoring is established under Hawaii Administrative Rules and has certain set of guidelines for what level of, for instance, archaeological monitor would have to have a license from the State of Hawaii to be a principal investigator, would have to follow Hawaii Administrative Rules in the preparation of the archaeological monitoring report, submit that to SHPD for review, SHPD, State Historic Preservation Division, whereas cultural monitor doesn't have the same level of oversight from the State; often the cultural monitoring will be done in cases where, the cultural monitor is more overseeing the archeological consultants, ensuring that their work is in compliance with traditional cultural practices, instead of the archaeological scientific side of that. And in this case, you know, having the archaeological monitor there to make sure that there are no discoveries, would probably be the way to go, and if there are discoveries, the archaeological monitor will follow the State protocols in order to address those. PAISHON-DUARTE: Thank you, that makes sense. ROY: Can I add something? VITOUSEK: Sure. ROY: Based on one of the previous SMA Minors, a condition was added, "An archaeologist shall be on site during the construction phase to monitor activities in relation to any unanticipated sites, burial remains," and they go on with the typical SHPD inadvertent finds. VITOUSEK: Okay. Yes. 12 EXHIBIT B DEFRANCO: I just, I have a question for discussion. My understanding of the topography of the land is that it's pahoehoe, most of it, all of it, except one small corner, right, that is six inches deep in some kind of material that's been pushed up on it. And I'm just wondering, if really what we are looking for is to assure us that that one corner doesn't have an inadvertent burial site, and if there is a way to be to just do a due diligence for them to make sure that there is nothing in that one area, rather than making it into something that—you know, all of these other SMAs have already been done, and there isn't anything there, it's all been disturbed and bulldozed, except for this one section that maybe needs a little bit of exploration, is there a way to just limit it so it's not like tied to the whole project? VITOUSEK: Well, I mean the nature with subsurface is you never really know what's underneath there until you are digging through it. As far as the archaeological monitoring, you know, you'd want to have, typically, you would want to have the archaeological monitor there for the initial ground disturbance, so anytime when they are doing the initial grading or excavation on area. Once they've cut through and they figured out what the substrate is there, they've pretty much eliminated any chance of finding anything. You don't need the monitor there while they are framing up the house, right? DEFRANCO: Right. VITOUSEK: It's just that initial DEFRANCO: So, but hasn't it already been excavated? I mean I'm looking at it, I'm looking at an area that's already been excavated, and it's already down to like bedrock, right? Except for this corner piece. VITOUSEK: And even then, I don't think that the corner is unexcavated; every part of this lot has been disturbed. DEFRANCO: Okay. VITOUSEK: But the issue that you see sometimes in areas that is disturbed is if there is fill that's imported on top of the existing surface, you are preserving that surface below the ground DEFRANCO: Yes. VITOUSEK: —and so there is a possibility that remains exist below disturbed areas. And what Matt is saying is that there is such a very small possibility of that because this area has been disturbed to a level where there is, in all of his informal testing, he couldn't find anywhere there any subsurface deposits that could exist. That being said, as Matt said, there is still a possibility; we can never rule anything out ever because of what it looks like on the surface. So the archaeological monitoring is kind of an in-between thing where he's looked at it, he's tested it, he said, yeah, I really don't think there is anything here. But because of the fact that there have been discoveries in the vicinity, right next door, it's kind of like a safeguard where if they do find something, there will be people who are able to handle it according to the protocols that exist. 13 EXHIBIT B DEFRANCO: But if, you know, I didn't go out and look at the site, but you did, and when you look at the site, are you looking at rock? Most of the thing, you said you saw ROY: Yeah, I kind of kicked around, and I didn't want to go trapsing all over, so I came down the wall, went down in there and was kicking around down to the bedrock, the pahoehoe lava. And they had said about five inches and some places it was only a few inches of really kind of what I would look to be garbage material, mix of gravel, you know, construction, some sand. But the other thing, too, is that the development is going to be set back DEFRANCO: From that section. ROY: —from that wall, so that corner will, there may be some minor landscaping, but there is going to be no actual building or construction really DEFRANCO: In that area. ROY: within about 20 feet of that wall, so that corner DEFRANCO: And that's the questionable area. ROY: I don't know if that encompasses the corner of the whole area that, you know, that he is talking about, but he may be able to speak to that. PAISHON-DUARTE: May I also just add? VITOUSEK: Sure. PAISHON-DUARTE: Part of the reason why I'm advocating for additional soil deposit testing is because of the statement that was made, is that because of the adjacent properties that did not, was not required to undergo this type of assessment, I think it just could, it would be good to do this. KNOWLES: And it doesn't have to be as restricted, I mean that the condition that you read out was fairly expansive in terms of the, I think it said the entire construction phase ROY: Yeah, during KNOWLES: theoretically, we could limit it, I imagine, to the grading and VITOUSEK: Yes, yes KNOWLES: foundational work. VITOUSEK: And I think there are two separate issues, right? I think that Commissioner Paishon-Duarte is asking about, one, archaeological monitor and, two, archaeological testing. 14 EXHIBIT B And under normal circumstances, the archaeological testing will be done first in the form of an archaeological inventory survey if anything is found, or an archaeological assessment if they go out and do the testing and don't find anything. At that point the archaeological assessment would be submitted to SHPD, and so the County saying, hey, we didn't find anything, everything is good to go. SHPD would review and comment on that application according to 6E-42, saying that we've reviewed it, we don't think there is anything. Or if they don't hit their deadline, they miss it, they don't respond, we've given them the opportunity to review and comment. And technically, what the law says is that the County agencies, the permitting agencies, have to give SHPD the opportunity to review and comment on the effect of a proposed project on historic preservation sites. And so I think that it would make sense in advance to send this to SHPD, and if they don't make a comment, then we can come back, but we have obligation to send it prior to the issuance of the permit and not as a condition. DEFRANCO: It hasn't already been looked at by SHPD? ROY: Well, actually, the rule is that an archaeological inventory report is done, or a no-effect letter from SHPD has been provided, or in this case, a copy of a letter written by the applicant to SHPD requesting a no-effect determination, so the applicant has followed the law in accordance with our rules for applying for the SMA. It was after my review of all the historic impacts and my site visit, and then based on the Chair's previous ask that the Planning Department try to take a better look at whether it needs to go in certain cases or not. But we can definitely condition and run it through 6E-42 if that would be helpful. VITOUSEK: So, did the letter that was submitted, did that go to SHPD? ROY: Yeah, that was, that was his letter. But SHPD doesn't always respond. VITOUSEK: Sure ROY: And since the HICRIS system has come into play—if you don't know, that's their online application submission system they are not really responding to applicants anymore. So it's, the law needs to be updated, the rule needs to be updated, to kind of take in this new system. But, and then the HICRIS system does allow you to search the sites, and then as I told you this morning, there wasn't anything shown on the SHPD map, but that doesn't mean anything; the things may now have just been registered. VITOUSEK: Right, right. So what was the process like, Matt? CLARK: I can clarify. The letter was prepared to go to SHPD. And typically, the submissions now come from the county to SHPD; they will not take just a letter sent to them without a project that comes in from the county. So I was anticipating this letter to go to SHPD as part of the review of the SMA. VITOUSEK: Okay. CLARK: That was my, that was the intention of the letter. 15 EXHIBIT B VITOUSEK: Okay, and so, did you submit that directly to SHPD? CLARK: No, the project needs to come from the County. VITOUSEK: Okay, okay. CLARK: Yeah. VITOUSEK: So DEFRANCO: So if we submit this, then there will be that letter submitted with it, and there will be an oversight— ROY: Yeah DEFRANCO: right? ROY: we would do a 6E-42 review VITOUSEK: Yeah. DEFRANCO: Yeah, okay. ROY: I would go ahead and complete the HICRIS submission and submit his cultural impact analysis, all the work that was done,photographs, things like that, and we could just run through and allow SHPD to opine on that— VITOUSEK: Yep, to give them the opportunity ROY: To give them the opportunity if that— VITOUSEK: to review and comment. DEFRANCO: Okay. VITOUSEK: Okay, in that case, we could make a motion to defer the current motion that's on the floor to accept pending review by SHPD,pending 6E-42 process. DARROW: Sorry,just a suggestion, Chair. VITOUSEK: Yes. DARROW: You know, in the past, you remember we've had a lot of discussion on, we used to place conditions in the permits that were after-the-fact requirements of SHPD. I don't know if you want to consider it in this particular case whereI mean it's pretty thorough, as staff 16 EXHIBIT B mentioned, they did very thorough research on past historical activities that had occurred on this property, it's a smaller property, it has a lot of bedrock—if you feel comfortable, you could also consider placing a condition that we go ahead and submit it to SHPD, and whatever requirements they bring back, that the applicant comply with that. If you don't feel comfortable with that, then we can go the other route. VITOUSEK: So we would have to then condition the issuance of the permit, the timing of the issuance of the permit, so we couldn't be issuing the permit until after SHPD has reviewed it. DARROW: Right. VITOUSEK: But that would be giving all of the decision-making to SHPD in essence and taking it away from us as the Commission on how the historic preservation review process would play out. So that would be something for the Commissioners to decide is that if we put this as a condition and we say that we will allow this permit to go forward after SHPD has reviewed it and completed the 6E review process and made any determination that they want to make, at that point the permit would be issued. Or the other option would be that we can say that we want to defer this until SHPD has had the opportunity to review and comment on it, and then it will back to us, and we would either agree with what's proposed by SHPD, or not, or if they missed their deadline, that gives us the authority to then say they've had the opportunity to review and comment, we can make the decision on this and move the project forward. Because I worry about that dangling out there for the applicant and extending their process when, if we have the ability to say that they didn't meet their deadline, we want to move forward. How would the applicant feel about those options? NICHOLSON: So I just have a responsibility to the client to speak on their behalf, and there might be some ignorance that's displayed in this conversation by my, on my part. So I'm giving you eye contact over here, Roy [sic], because you've been so helpful, Alex, and I feel like this is the first time this has ever happened for a residential home on Ali`i Drive to get a SMA Major application—is this correct? ROY: This is, yeah, this is new because of the law change NICHOLSON: Because of the law change, and so, you know, we are jumping through as many hoops as we can to get the process going, and I'm, I'm fearful that this is going to belabor this for a long time. So the terms that I want to be able to deliver back to the client and say, hey, this is how we are expediting and, but also wanting to treat the land with respect. And so we know that that's—is there another option besides going to SHPD where we have an archaeologist reviewing any time the machine is on the job? We are not even going to be poking holes in that area that's in question, so that's adding fill soil. The areas that we really should be considering is the deep excavation of the pool because that might find some lava tubes or any depressions that were unforeseen, so having a qualified person there reviewing that would help us expedite the process if that's put in as a condition versus to go back around and have to come back before you and say, okay, SHPD never responded to our letter, the time expired, and now we are going to get on the next docket and do this all again. Am I missing something in that process? 17 EXHIBIT B VITOUSEK: No, you are not. NICHOLSON: Okay. VITOUSEK: Unfortunately, those processes exist in the laws that we have to follow in terms of giving SHPD the opportunity to review and comment on a project that has potential to affect historic sites, and so to me the question is not whether they get the opportunity to review it. I think they have to, based on State Law, they have to have the opportunity to review and comment on this project. The question is whether we put that as a condition, and then it dangles out there with SHPD, and it's up to you and them to work through the process independent of us, and then the permit would only be issued after they've given the stamp of approval for the completion of the historic preservation, excuse me, historic preservation review process, or if we ask you to go and to defer this for now to send in an application to SHPD through Alex and the HICRIS system, and if they don't meet their deadline, then you come back in here, and we make the call and we say that we are going to issue it with these conditions NICHOLSON: Can, can we hash out those conditions at this time to make the most of that, so we don't VITOUSEK: Yes. NICHOLSON: we kind of know where we are starting? And then the other question I had again this is my ignorance exposing itself but I thought that the Planning Director had the opportunity to, in this case, not send it to SHPD, but I think I heard you just say, no, we have to send it to SHPD. Or do you mean, is that an ethical thing? VITOUSEK: In my opinion I think we have to in this case because of the nature of the site, the location of it— NICHOLSON: I see. VITOUSEK: the fact that there, the law says that if there is a possibility for it to affect historic properties, then SHPD must have the opportunity to review and comment. So they can pick and choose, you know, on permits that they think are not going to have any effect on anything; if there is a graded area in the area removed from any historic properties completely, then they can choose that. But in my opinion, something like this we have to send that to SHPD for review and comment. DEFRANCO: So, Mike? VITOUSEK: Yes. DEFRANCO: So,just so I'm clear, too, because what I'm hearing the applicant saying that if they provide an archaeological person there when the pool is being dug and to make sure nothing is disturbed, maybe is that a better route to make sure that this project is being done correctly? I 18 EXHIBIT B mean our thing is to make sure that, you know, it is being done correctly, right? And for some reason—yes? ROY: I just wanted to add that at a minimum this would add two, two more months, if not more, because SHPD it's 30 to 45 days, and then to schedule it before the Commission again, so DEFRANCO: Right— ROY: just,just to give you some DEFRANCO: but in my mind, too, there has already been SMAs on this property, like, many of them, right? They don't mean anything anymore? You know so much more about archaeological things, but it seems like this property and this whole subdivision has already had SMAs done, right? And so this one, because the law changed, right, in 2020 or something, we have a new law, so now we have one more level of stuff to make sure that everything is being done correctly. That's the reason for the law. So the other reason is for the applicant to stand up to that and say we want to be reasonable, we are willing to supply an archaeological person to be on site to look at everything so we can go forward, and we don't get a two to four months, six months, delay. Am I hearing this right? VITOUSEK: Yes, so in this case if you are recommending an archaeological monitor DEFRANCO: Yes. VIOTUSEK: Then that archaeological monitoring report has to go to SHPD for review. SHPD is probably not going to review it if they didn't request the archaeological monitoring report, because there has been no initiation of the 6E-42 process, which triggers the historic preservation review. So for us to just say do a monitor and send it to SHPD, they are going to be like what's this, you never sent us the permit on this. So DEFRANCO: So the reason the permit was in the first place not sent by the County to SHPD is because you went out there and looked at it and didn't feel it was required because of the topography of the land. ROY: Well, the historic activities DEFRANCO: And, and all of the activities that's already been done ROY: the four SMA permits that have been conducted DEFRANCO: The four done before ROY: yeah, on this property. DEFRANCO: Okay. 19 EXHIBIT B KNOWLES: Chair, is there a way to do an if-then kind of a condition? You know, the idea of having it hang out there with SHPD. And so since we would be approving the permit today with these conditions, if then, unless something is triggered for SHPD, that then would bounce it back to us. I'm just curious. I'm still new to this process, but I'm wondering if there is a way to do an if-then. And so if there is nothing, it just rolls along; if there is something, it kicks back to us. ROY: Well, there is the standard SHPD condition that is for every, well, it's VITOUSEK: Which would, the inadvertent discovery condition, yes, yes. But I think in this case we are talking about, again, the two options about whether 6E-42 compliance be a condition of this or whether that be done in advance of our approval of the application. So to me, it's got to be done one way or the other. And it's for us to decide whether we condition that or we ask them to do it and come back. Either way, this adds time, because either way I think this has to be done, you know, they have to do a 6E-42 review of this project in my opinion. Yes. DARROW: So, again, that's your you've explained very well what the two options are the option that the applicant does not need to appear back before the Commission, normally what happens is we place a condition. In this particular situation, it's a little bit more unique because Planning would send the application through HICRIS, and they would respond to Planning and also whoever the contact is. So the condition would be, the permit would be issued, but in the conditions, it would say that the applicant could not submit for a building permit until this process is complete. And so if SHPD comes back and says, you know, issues a no-effect letter, then at that point, they could proceed. If they come back and say we want an AIS, they would have to an AIS and comply with whatever requirements, or whatever they would say, they would be held based on that condition to comply with whatever requirements are requested by SHPD. So, again, that's the two options; either they come back after SHPD responds and then you folks decide what you want to do there, or you give the ability for SHPD to respond, and they comply with whatever they want. And again, you still can request an on-site archaeologist monitor to be there. JACKSON: Mr. Chair? VITOUSEK: Yes. JACKSON: May I suggest we take about a 10-minute recess to crack some language and then bring it back to the Commission VITOUSEK: Sure, no problem. JACKSON: to achieve the objective? VITOUSEK: Sure. JACKSON: Okay. 20 EXHIBIT B VITOUSEK: And, I mean, is the applicant, if you guys have suggestions, please feel free to work with them during the recess. NICHOLSON: Thank you. VITOUSEK: Yeah. We'll be back at 11:13. [Chairman Vitousek called a short recess at 11:03 a.m. He called the hearing back to order at 11:14 a.m.] VIOTUSEK: Are we good to go? Okay. Welcome back. ROY: Okay, I'm going to go ahead and read the condition that was worked out during recess. The condition right now on the table is "The Applicant shall conduct subsurface tasting of the property and submit its findings to the Planning Department for HRS 6E-42 review"that's the HICRIS review—"The Applicant shall implement any mitigation required by SHPD prior to the issuance of a building permit for the proposed development." VITOUSEK: So, that would indicate that they have to go in there and do some testing, make sure there is no possibility of anything out there, submit that to SHPD as part of the review of the overall project, and then SHPD would make any mitigation recommendations once they have that information. They may look at that and say they've done a thorough testing of this, there is no deposits deeper than a couple centimeters, there is no possibility of any subsurface remains, project can go ahead right away, or they may look at it and say, oh, there could be something there, they might have to do an archaeological monitoring plan, an archaeological monitor may have to be there. But they'd be making that decision based on actual information about what's on the ground. I'm good with that. The only question I have on that, having heard it is, is the issuance of the building permit that is the requirement for, the right time for the requirement of the mitigation commitments? KNOWLES: As opposed to grading? VITOUSEK: Right. DARROW: So you, sorry, Chair, so you could put that in, "prior to any land altering activities." VITOUSEK: That sounds good. ROY: Prior to ground disturbance or any land altering activities? VITOUSEK: That sounds good. Is that okay with you guys? [Inaudible agreement] ROY: Okay. VITOUSEK: Okay. Commissioners, if you are okay with that, somebody make a motion to amend the motion that's on the floor to include the updated condition language. 21 EXHIBIT B PAISHON-DUARTE: I'd like to make a motion to amend the motion that is on the floor to include the additional conditions. VITOUSEK: Yep, the additional condition, okay, sorry, the condition as stated by PAISHON-DUARTE: Conditions as stated by Planning Department— ROY: Do you want me to read it over because we just changed it— VITOUSEK: Please PAISHON-DUARTE: Yes, please, thank you. ROY: Okay, so one more time. "The Applicant shall conduct subsurface tasting of the property and submit its findings to the Planning Department for HRS 6E-42 review. The Applicant shall implement any mitigation required by SHPD prior to any land altering activities of the proposed development." VITOUSEK: Okay. DELA CRUZ: Second. VITOUSEK: Okay, motion by Commissioner Paishon-Duarte, second by Commissioner Dela Cruz. Do we do a roll call of the amendment? Oh, any discussion? No. We'll do a roll call for the motion to amend, the secondary motion. ROY: Okay, Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. ROY: Commissioner Dela Cruz? DELA CRUZ: Aye. ROY: Commissioner DeFranco? DEFRANCO: Aye. ROY: Commissioner Knowles? KNOWLES: Aye. ROY: And Chair Vitousek? VITOUSEK: Aye. Okay? 22 EXHIBIT B ROY: That was for the amendment. VITOUSEK: That's for the amendment, the secondary motion to amend the motion on the floor. Now, we can discuss the motion that's on the floor. Is there anything anyone would add? DEFRANCO: I'm good with it. VITOUSEK: Okay. We'll proceed with a roll call vote on the main motion. ROY: Okay, so this is on the main motion to approve with the amendment? VITOUSEK: Yes. ROY: Commissioner Knowles? KNOWLES: Aye. ROY: Commissioner DeFranco? DEFRANCO: Aye. ROY: Commissioner Dela Cruz? DELA CRUZ: Aye. ROY: Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. ROY: And Chair Vitousek? VITOUSEK: Aye. ROY: The motion carries, five to zero. VIOTUSEK: Okay, thank you. You'll be notified of the Commission's decision in writing. Appreciate it, guys. Thank you. The hearing ended at 11:19 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 23 EXHIBIT B