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HomeMy WebLinkAboutPL-REZ-2022-000017 J. MATLOCK TESTIMONY 11.14.2022Araujo, Jaclyn From: janet Matlock <matlockjanet@gmail.com> Sent: Monday, November 14, 2022 7:54 AM To: LPCtestimony Subject: Oppose Item #2, Applicant: Shawn Maile Nakoa, Esq. (PL-REZ-2002-000017) Attachments: Oppose #2 REZ-2022-000017.pdf Aloha Planning Staff, Attached please find comments regarding the above application, scheduled to be heard by the Leeward Planning Commission on November 17, 2022. Mahalo for your time and assistance, janet Matlock Aloha Planning Commissioners, Thank you for this opportunity to comment on Item #2, Applicant: Shawn Maile Nakoa, Esq. (PL- REZ-2022-000017), TMK: (3) 7-7-008:062. I appreciate and have sympathy for the difficulties families face when dividing property both real and personal among heirs. It appears that for this application, family members had to petition the Court in order to try to resolve inheritance issues. The Court came to a seemingly simple conclusion —to subdivide the property, with one heir initially paying the up -front costs to do so. However, this unfortunate familial circumstance does and should not exempt the parties involved from the same requirements that any and every other owner/developer must follow. Below are several instances where it appears attempts have been made to do much less than the bare minimum that would be required of any other application. Did Not Provide the Promised Notice The application of February 12, 2022, submitted by Land Planning Hawaii (LPH), stated, "...Notices of this application will become available by the posting of a sign on the property..." I have personally checked on more than one occasion and there is no, and to my knowledge has never been, visable signage at the entrance to the property at Pomaikai Street (the most appropriate location) or off Kuakini Highway. Why was this not adhered to or enforced? Avoided Municipal Wastewater Hookup and Fees LPH's application initially stated that the subdivided properties' wastewater would be treated via "Individual Wastewater Systems," i.e., not by connection to the municipal wastewater system. It is curious that LPH would not have been aware of the requirement to connect to the immediately adjacent municipal system. Water Allotment Application Based on Old Records Submitted with the application was a letter from October 10, 2010, from the Department of Water Supply to a Realty company referencing a different subdivision application and allowing one available unit of water for this property. The DWS replied to this current application allowing two additional units, listing the current requirements and costs. It is puzzling why and appears sloppy that LPH initially submitted a letter for another project that is over 12 years old. Rare or Endangered Flora / Fauna Survey "Although there were no professional surveys conducted... the applicant does not believe that rare or endangered floral or fauna resources are likely to be found within the subject site... Further, the suburban nature of the surrounding areas would make it less likely to find endangered animal life in this area... " (emphasis added) In fact, each of the species named, Hawaiian Hawk (I'o), Hawaiian Owl (Pueo), and Hawaiian Hoary Bat have been observed hunting on and around this property and the surrounding areas. Whether they are specifically "on site" at any particular moment in time does not negate the importance of available range for these species. Simply stating "proper timing will mitigate for any potential impacts" seems cavalier and evasive, especially if no effort is made to identify whether they are even present. Avoidance of an Updated and Accurate Archeological Survey LPH initially submitted an archeological survey from 1987 in support of subdividing this acreage. This 35 year old survey is of 32 acres located in this ahupua'a, an area known and documented to be rich in archeological sites both pre- and post -contact that are potentially dating back over 1,000 years. As discussed below, LPH is representing another hui of property owners within this ahupua'a. Per Hawai'i County Planning Department staff, LPH likely will be submitting that project directly to the Cultural Resources Commission. It is therefore concerning that they would attempt to avoid an updated survey and a referral to the CRC for the subdivision of this parcel. Initially, DLNR / SHPD agreed. A letter from DLNR dated February 22, 2022, addressed to Planning Director Zendo Kern, stated "SHPD has insufficient information to determine the potential for the proposed project to adversely impact historic properties. Thus SHPD requests that an archeological field inspection to be conducted by a qualified archeologist to determine if undocumented historic properties exist in the project area. If unrecorded historic properties are present, SHPD will request that an AIS be completed... " (emphasis in original) Following this SHPD request, a second letter from DLNR/SHPD to Kern dated August 5, 2022 notes, "TesARCH Services archeologists conducted a 100% surface pedestrian survey of the subject parcel..."This letter further notes that "a data recovery plan (DRP, Haun and Henry 2010) was accepted... however, the plan did not include the current project area." The letter continues, "Additionally, the FI report indicates that a historic house structure, an auxiliary shed, and three historic graves within a burial plot were encountered and have all been impacted by recent bulldozing." The letter then provides instructions for an AIS to be conducted "prior to initiation of project related work." (emphasis added) John Pipan of Land Planning Hawaii replied to SHPD on October 20, 2022, requesting that any AIS be deferred until after the subdividing of the property, thus making it a requirement of each subsequent owner of each subdivided lot to conduct an individual survey on these ever - diminishing parcel sizes. He pleaded that the subdividing was "court -ordered," which is incorrect; the Court can and did "encourage," but cannot order, zoning changes. Pipan stated that, "As only one of the landowners is currently fronting all of the cost of the subdivision requiring the AIS prior to the subdivision may make it infeasible. " However, incurring this cost was specifically addressed by the Court: "5. The subdivision costs for the Property will be advanced by the Plaintiff... whereupon the costs and fees incurred by the parties in this matter will be determined by future motion before this court. Reimbursement for the costs advanced by Plaintiff to pursue the subdivision shall be secured by the Property." The next letter from DLNR, dated October 31, 2022, addressed to Director Zendo Kern, stunningly accommodates the applicant's AIS timing request. "Subsequently, during a teleconference meeting conducted on September 22, 2022 (Susan Lebo [SHPD], Sean Nalemaile [SHPD], Jeff Darrow [County of Hawaii Planning Department], Shawn Nakoa [Rush Moore, LLP], and Jeannie Averill Clement [landowner]), it was determined that the requested AIS would be conducted during subsequent permitting process and not as a requirement for the current re -zone application. " This conclusion was reached even though the letter additionally states, "During the field inspection, remnants of State Inventory of Historic Places... were observed. Additionally, SHPD personnel observed potential terraces and a platform that were not previously identified. Thus, it is likely that the current project parcel may contain more sites/features that have yet to be identified. " (emphasis added) Why did DLNR/SHPD come to this conclusion? We don't know. A transcript of this teleconference meeting was not provided in the application documentation, nor was the map from the 10/28/22 survey that Pipan stated, "will be submit (sic) to SHPD for review as soon as it is available." It appears this review is still in process. Responsible planning would reasonably require waiting until the relevant information is made available to the public and the proper reviews completed. As submitted in previous testimony to the Leeward Planning Commission and the Cultural Resources Commission, it makes far more sense to consider this ahupua'a and its rich cultural, historical, and agronomic information in its entirety, with an awareness of what we can learn for ourselves and future generations. Additionally, the documented history of bulldozing and destruction of sites on this property (as well as many others locally) make ever -smaller divisions even more problematic. Request to Avoid Department of Transportation (DOT) Safety Standards The DOT noted in a letter of March 24, 2022, that the application incorrectly referred to Kuakini Highway (State Route 11) as a county road, and specifically requested that the applicant not access the property from this Highway. DOT stated, "Every driveway represents potential conflict points between motor vehicles, pedestrians, and bicyclists... " and requested the applicant "Consider instead to only access the parcels directly from Pomaikai Street." LPH acknowledged the error but continued to push for Kuakini Highway access, stating, "As the lot layout has not been finalized, the applicant wishes to retain the possibility of access to Kuakini Highway by one resulting lot if required by other factors. " (emphasis added) The Conditions of Approval Section G reinforces this no -access from Kuakini Highway condition, "Vehicular access to individual lots shall be prohibited from Kuakini Highway. " (emphasis added) It is important that this Condition be read as an absolute of no access and not with exceptions, for reasons given below. There are two concerns with Kuakini access. The first, obviously, is public safety. The second is in relation to Land Planning Hawaii's representation of an another application for rezone and subdivision makai of this parcel. LPH represents an out-of-state landowner hui that wishes to break through an historic ahupua'a wall in order to build a cul-de-sac subdivision. Following pushback from property owners on and adjacent to the only access road to this aspirational development, Mr. Pipan sent an email on October 21, 2021, stating, "We are continuing to work on the land use applications for the proposed subdivision and would like to provide a brief update. We have reached out to the owners of the parcels between the subject property and Kuakini Highway to explore the option of allowing access to the site either permanently or for temporary construction traffic." (emphasis added) Necessity of 60-foot easement? The proposed subdivision map indicates a continuation of a large easement adjacent to the northern ahupua'a boundary. The need for or benefit of continuation of this easement to the property owner, is unclear. Relationship to SMA Objectives and Policies The application states, "The site is located approximately 0.8-miles from the coastline and inside the County Special Management Area (SMA). Following this request, a Special Management Area Assessment application will be submitted to further evaluate the potential impacts of this project on the SMA.... " Since this rezone application is within the SMA, the SMA application should be applied for concurrently with this rezoning request and as a "major" SMA, i.e., given proper notice, including signage, and appropriate hearing at the Leeward Planning Commission. Application should not be submitted after the fact as a "minor" SMA, which would require only the approval of the Planning Director (or potentially the Deputy Director, in this case). Five Years Extension Language Included, Again The Planning Director's Recommendation is "Final Subdivision Approval for the proposed subdivision shall be secured within five (5) years from the effective date of this ordinance. " Also included is the perpetual "An initial extension of time for the performance of conditions may be granted by the Deputy Planning Director upon the following circumstances... " This is the same language that has provided such frustration to the County's Commissions, Council, and the public, with the exception that it now specifically states the "Deputy Planning Director shall submit the Applicant's request to the County Council for appropriate action. " While this is technically the letter of the language recently discussed at both Planning Commissions and in process of forwarding to the Council, it defeats the intent and purpose of Bill 194. As has been extensively discussed, the point of this Bill is to avoid approving projects that subsequently go dormant, expire, and then be revived after time and circumstances have moved on. All this application's language does is bypass Planning Commission review to go directly to the Council — which may have the unintended consequence of removing, not adding, appropriate oversight and public input. If the standard language can be changed from "Planning Director," to "Deputy Planning Director," (in acknowledgement of the conflict of interest with the current Director's former firm being this applicant's representative), then surely the recommendation language can be corrected to remove the presumption and expectation of time extension requests. The Application for Change of Zone Plans form submitted by LPH on February 2, 2022, states the owners have "No firm plans" to the question "Do you intend to build houses on the newly created lots?" If the owners have no firm plans, what is the rush to avoid the proper studies others would be required to complete for a change of zoning application? Again, as much as I sympathize with this particular estate's heirs in trying to move forward and resolve their conflicts, I believe settling a private inheritance issue should not come as a result of preferential treatment — and even more importantly, should not risk setting a precedent for the waiver of regulations based on personal, financial, or other individual circumstances. Mahalo nui loa for your dedication, time, and consideration, Janet Matlock Kailua Kona