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HomeMy WebLinkAbout2005-04-22 TUmphrey REZ 03-032 PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT April 22, 2005 A regularly advertised hearing on the application of JACK AND BARBARA UMPHREY (REZ 03-032) was called to order at 9:20 a.m. in the King Kamehameha's Kona Beach Hotel, Islander - Room, 755660 Palani Road, Kailua-Kona, Hawai i with Chairperson Fred Galdones presiding. PRESENT:Fred GaldonesABSENT & EXCUSED:Jeffrey McCall C. Kimo AlamedaRodney Watanabe Hannah SpringerAllen Salavea William GrahamRene€ Siracusa AndrewIwashita IvanTorigoe,DeputyCorporationCounsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler, Representing the Department of Public Works And approximately 25 people from the public in attendance APPLICANT: JACK AND BARBARA UMPHREY (REZ 03-032) Continuation on the application for a Change of Zone for 25, 580 square feet of land from a Single Family Residential ƒ 7,500 square feet (RS-7.5) to a Village Commercial ƒ 7,500 square feet (CV-7.5) district. The property is located along the east (mauka) side of Mamalahoa Highway and across from Saint Paul Road, approximately 430 feet south of Teshima Restaurant, st Kawanui 1, Honalo, North Kona, Hawaii, TMK: 7-9-3:61. GALDONES:Commissioners we are on agenda item number 1. This is an application from Jack and Barbara Umphrey, REZ 03-032. This is a continuation on the application for a Change of Zone for 25, 580 square feet of land from a Single Family Residential ƒ 7,500 square feet, RS-7.5 to a Village Commercial, 7,500 square feet, CV-7.5 district. Jeff. DARROW:Thank you Mr. Chairman. Good morning Mr. Chairman and members of the Planning Commission. If I may direct your attention to our location map. The area of this application is within the North Kona area, more specifically in the Honalo area. This black line traveling in a north-south direction is Mamalahoa Highway, Kuakini Highway. The upper line is the Mamalahoa Highway and where they connect is just about the area of this application in the Honalo area. The red dot signifiesthelocationoftheapplication.Thecolorsrepresentthesurroundingzoning,theyellow being residential, the red being similar zoning as being requested today, Village Commercial 1 EXHIBIT A zoning. There has been previous rezonings in the area that occurred in the late 60€s up to the 80€s from Residential to Village Commercial. The applicants are here today. They were able to resolve fire flow requirements which resulted in the continuance. They have been able to agree to install sprinkler systems to resolve fire flow requirements for the fire department in the project€s buildings. The applicants Jack and Barbara Umphrey are requesting a change of zone from Single Family Residential 7500 square feet to Village Commercial 7500 square feet. If I can direct your attention to the plot plan that was submitted. The applicants are proposing to convert an existing dwelling on the property to offices for office use and are proposing to construct 2 new structures on the property on the eastern boundary for mixed use purposes. At this time it is unknown as to specifically what those uses will be. They are also proposing to put in a 27 space parking lot including 2 handicap stalls. A condition to bring to your attention is Condition E and this states that the effective date of this ordinance will be upon either the completion of the Mamalahoa Highway Bypass Road from Keauhou to Napoopoo Junction or the completion of Mamalahoa Highway improvements along the subject frontage of the property includingacontinuance2-laneleftturnlanethatwillbeabletoallowfortheflowoftrafficin fronting the subject property. Until one of these actions occur the property will remain in its current zoning of RS 7.5. We have received several letters of opposition to the project. One of them, or correction two of them were submitted previously from George and Elaine Harai as well as Shari Jumalon and this morning we€ve received 2 additional letters. One from Janice Bovard and that one has been passed out and we€ve also received one from Jerry Herbert and Nancy Redfeather and this one, there was only one copy so if I could summarize. They are concerned regarding the water runoff of the project. They say that this particular project is located near the Kawanui Floodway and that they€re requesting that all development generated runoff water be disposed of on-site and shall not be directed toward any adjacent properties and that a drainage study be prepared by a licensed civil engineer and submitted to the Department of Public Works and approved prior to issue of any permits. We do have a condition that addresses this matter. This is a condition within the change of zone conditions. The Planning Director is recommending a favorable recommendation be forwarded to the Hawaii County Council by the Planning Commission. Are there any questions? GALDONES:Commissioners any questions of Jeff? Commissioner Graham? GRAHAM:Jeff, before when you outlined the 2 sides to Condition E with regard to the highway and all, obviously the first part which was the opening of the Mamalahoa Bypass nd Road is not under the control of the applicant. How about the 2 half of that, about the Mamalahoa Highway improvements along the subject frontage? Are those improvements totally under the control of the- or are they generally under the control of the applicant or are they some thinghehastowaitfor? DARROW:Ibelievethattheimprovementswouldfaroutweighthecostoftheproject so this would be something that they would have to wait for to happen. Probably regarding improvementsbytheCounty.Ifyou€dlikeIcanaskKiifyouwantto- 2 EXHIBIT A GRAHAM:If that is accurate I€d like to just follow up to the Planning Director. DARROW:Sure. GRAHAM:Kind of wondering when there€s a situation where a zoning cannot take place immediately but it€s only contingent on things that may happen in the future. I€m kind of wondering where you draw the line as to when it€s appropriate to do the rezoning contingent on future things or when you would say, you should come back when one of those things is in place and do the rezoning then. YUEN:Well I don€t know that we have a set policy on that but the application did come in. It€s generally in an area that we would- that€s general planned and has some commercial uses around it so it€s consistent with the general plan but because of the exiting traffic situation we couldn€t recommend going ahead with the construction of the project now. Giventhatthey€veappliedandgonethroughtheprocess,wedecidedtorecommendapproval with these conditions that essentially keep it from going ahead until these other improvements are made. That, in one case they don€t have control over and then the other case they would probably, they would be so expensive as to not be economically justified by this project. GALDONES:Commissioner Springer? SPRINGER:My question and concerns were similar to those raised by Commissioner Graham and I guess I would just ask it the Condition I then satisfies the Department of Public Works concerns about the applicant€s ability to conform to the minimum sight distance requirement. DARROW:Commissioner Springer if it€s okay if I could direct that attention to our representative from the Department of Public Works. SPRINGER:Thank you. GALDONES:Mr. Emler. EMLER:Well the answer to your question, I just in briefly looking at both Conditions H and I and I see nothing in either one of those conditions that would specifically address the sight distance issue. We would prefer that there would be something to address that in the conditions. SPRINGER:Mr. Chair EMLER:But, it€s something we generally would look for but it would be better if it were in the condition. GALDONES:Commissioner Springer? 3 EXHIBIT A SPRINGER:Mr. Chair, I would then ask the Planning Director if he has some language that he might add to satisfy the Department of Public Works concerns regarding sight distance. Although on Page 5 of the Background Report, on the third line it reads that Mamalahoa Highway in this area is not congested. It certainly is congested from time to time and with traffic as it is just that sight distance is vital to safety. EMLER:Condition H is very general it does say, Vehicular access from Mamalahoa Highway shall be from one approach aligned opposite Saint Paul Road meeting with the approval of the Department of Public Works.‚ If we can read in the sight distance compliance to that meeting with the approval of the Department of Public Works it would be acceptable to us. GALDONES:Commissioner Springer would you be satisfied with the explanation given Mr. Emler or would you feel more comfortable that there is specific language to that effect? SPRINGER:I€m sorry Mr. Darrow was just explaining to me that there was a typo on thecopyofthebackgroundreportthatIhaveandthatisanerror,thatitdoesnotreadthe Mamalahoa Highway is, in this area, is not extremely congested but back to the matter of the sight distance, I would ask the Director if there€s some language that he could insert. GALDONES:Mr. Yuen. YUEN:We could just add at the end of H, instead of a period, say comma, including adequate sight distance or may be better- EMLER:Comma here, including adequate sight distance. YUEN:Better make a full sentence and just say that, Sight distance shall meet with the approval of the Department of Public Works‚. DARROW:And that€ll be at the end. SPRINGER:Mr. Chair. GALDONES:Commissioner Springer? SPRINGER:I would just ask of Mr. Emler, does that meet- satisfy your concerns. EMLER:Yes it does, thank you. SPRINGER:Thank you. GALDONES:Commissioner Graham? GRAHAM:Can I just follow up on that. It seems like a round about way to a fairly straight forward thing since the recommendation is that the entrance be across from Saint Paul 4 EXHIBIT A Road then that€s sort of where it€s going to be. So is it possible to have adequate sight distance with that being the entrance is what it seems like is what Ms. Springer is asking. EMLER:We did take a look at the site. The question is whether or not- I€m sorry, let me see if I can rephrase. If I understand your question, you want to know if adequate sight distance can be provided at the site at the location across from Saint Paul€s Road. Is that the question? GRAHAM:Yes, well sort of. Distance is distance, if the locations there, the distance is fixed there€s no way you can mess around with that but maybe you can mess around with what would impede sight and so my question just was is there a way that the sighting can be acceptable if that is the location that we€re putting here. EMLER:Without actually doing a detailed survey, sight distance study on the site whichwouldincludesomesurveyingwork,Iwouldnotbeabletoelaborateonallofthe remedial requirements for meeting that. GRAHAM:I don€t need that. I just want- I mean there are remedial possibilities so that it could work at that location is all I€m asking. EMLER:Yeah, if the question is, is there adequate sight distance there now, I would say no. There will be remedial work needed and it could include having to obtain a sight distance easement from the adjoining property to obtain that. GRAHAM:Okay thank you. GALDONES:Commissioners any further questions? Commissioner Iwashita? IWASHITA:Thank you. I have a request for clarification. This road or highway improvement condition, it seems to me that, that€s going to be something years and years down the road to be met and I just wanted some kind of indication if there€s an estimate as to how long, the earliest of either of these improvements could possibly take place? DARROW:Thank you Commissioner Iwashita, if I could ask the Planning Director if he could address his question? Thank you. YUEN:The Mamalahoa bypass was approximately 3/5ths complete when construction was stopped by the Courts injunction in September, 2003. There are 3 issues with the completion of the Mamalahoa bypass. Number 1 the Court in the Hokulia case enjoined further construction within the boundaries of the Hokulia project. That€s where they were working on it at the time, so that put it to a stop. Second problem is that at the, near the Halekii Intersection there€s a burial site. And the DLNR has not made a determination of what, how that is to be handled. It€s a inadvertent burial and so the decision is with the DLNR. If it can€t be relocated or built over then the road needs to be realigned. Third issue is that the County still has to condemn 1 parcel in the right-of-way, that€s the Coupe property. If the Court injunction were say dissolved by the Supreme Court and all issues related to litigation went away tomorrow, the 5 EXHIBIT A burial site, some decision was made that allowed the construction according to the current plans to go ahead at that location and the County the condemned, finished the condemnation of the Coupe property, then it would be simply a matter of construction. I€m not sure how long it would take to finish construction but my- I believe it would sometime in the range of 1 to 2 years. IWASHITA:What about the left turn lane fronting the property? Any idea how long that would take? YUEN:That€s not programmed right now. There€s no funding appropriated for it so, that I can€t give you a time horizon. IWASHITA:Then I have, like for the record express that, given the uncertainty of these conditions ever taking place and given that, under the- the new, amendments to the General Plan andthedevelopmentofCommunityDevelopmentPlansinthenear,that€sgoingtohappeninthe next year or so, I guess my concern would be that, you know those would be legal changes that probably would have an impact on this kind of a development and we probably should forego a approval at this time and wait until those laws are discussed and implemented. And then, if the owners want to come back under whatever new changes take place in the zoning ordinance or the building code or the community development plan then at that time it would be more appropriate for the body to address any request for this kind of change since it€s very unlikely that the road condition will ever be met within the same time period. GALDONES:Jeff would you- could you, can the Department or Mr. Yuen, might be able to address that. I€m sure there was some consideration from the Department in putting the recommendations together. In light of the fact that Condition Number E is going to be into the future, the Department had decided to proceed in bringing this forth to the Planning Commission. So, I€m not sure Jeff if you€d be able to answer that or probably Mr. Yuen? YUEN:What I€d like to do as a matter of procedure here is to hear- is for the Commission to- we go through the informational kinds of questions, hear from the applicant, hear public testimony and then as getting to the point of whether the Planning Commission wants to make a favorable or unfavorable recommendation, we€ll have that final- we€ll have that discussion at that time. And then I can talk a little bit more about this question of whether, when you have a rezoning that you may not be comfortable with on the basis of the present conditions but if the conditions change we would be favorable with it. Whether you say no or whether you process it, you have to- the applicant has a right to apply and even if there€s a unfavorable recommendation from the Department or the Planning Commission they have a right to get it up to the County Council. But, whether we want to make an unfavorable recommendation or as the Department has chosen to do, make a favorable recommendation with conditions that have to be fulfilled later. But, let€s have that for discussion, as I said, after we hear from the applicant and the public. I think the applicants heard this concern and the applicant can address it as well. GALDONES:Any objections from the Commissioners? Commissioner Springer? 6 EXHIBIT A SPRINGER:I just have one more question in the vein that we€ve been following. Shouldthe road widening occur on the subject property, is there a risk that the existing utility poles would become free standing and sort of isolated in the right of way? Looking at the pictures that were circulated I know that there are other examples of where that occurs and that creates another safety problem in itself. YUEN:Well, I think they€d have to move them. I mean, if it€s going to be part of the traveled way you can€t leave the pole there. You€re talking about the 3 lane widening that€s discussed as a potential- I think, Ki you can correct me, but typically if they€re in the way, they have to move them. And often that is a big part of the expense of doing something like that right. SPRINGER:So just for my clarification the utility poles will be moved from the positions they are in, in the photographs that were circulated to us. YUEN:I€m not sure what photographs you€re talking about. If you€re talking about,thereisapoletotheleft,that€stothesouthside-thatone.Yeah,Ican€ttellyouwhether a project- it€s, Ki it hasn€t been designed. This potential project has not even been designed yet right? EMLER:Correct. YUEN:Okay, so I can€t tell you whether a particular pole is going to get moved in connection with that. We don€t even know what side of the street it would get widened on. We don€t even know if the project is going to happen. But, pole removal is often the big part of these kinds of projects. SPRINGER:Thank you. GALDONES:Commissioners any further questions? If not, will the applicant or his representative please come forward? UMPHREY:Mr. Chair, I€m Jack Umphrey, representing Jack and Barbara Umphrey. GALDONES:Could you speak into the microphone, we need to record your statements please. UMPHREY:Yes, Mr. Chairman, I€m Jack Umphrey representing Barbara and Jack Umphrey. GALDONES:Could you please raise your right hand so I can have you sworn in. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? UMPHREY:I do. 7 EXHIBIT A GALDONES:Could you please state your name and your residence address. UMPHREY:My name is Jack Umphrey. My residence is in Honolulu at 2895 Kalakaua Avenue. GALDONES:Mr. Umphrey have you had the opportunity to review the background report and the recommendations? UMPHREY:Yes I have Mr. Chairman. GALDONES:Do you have any comments to them? UMPHREY:No, other than the dynamics of the project are going to be changedby the cost of road widening and so however, we have no objection to the way it€s going right now. GALDONES:The Commissioners have proposed to the Condition H, a sentence in there toaddresssightdistance.Doyoufindthatobjectionableordoyouconcurwiththe recommended amendment. UMPHREY:I would have to concur on that line of sight but without a proper survey it€s difficult to tell how much an impact that€s going to have. GALDONES:Commissioners do you have any questions of Mr. Umphrey? DARROW:Mr. Chairman. GALDONES:Jeff. DARROW:I was informed of an additional change that we need to add on to Condition F if I can bring that to your attention at this time. GALDONES:Proceed. DARROW:The concerns are is that at this time the representation is that the project will be mainly for office use and retail use. It€s unknown what type of retail use that may be in the future. Both our Planning Director and the representative from the Department of Public Works are concerned that there might be a high traffic generator that may be constructed on this proper. And so in case of that, they€d like to add to Condition F after the first sentence, they would like to add, A TIAR shall be required for construction of a convenience store‚. Additionally, at the end of Condition F they would like to add, The TIAR may be waived if DPW determines that the development does not warrant a TIAR.‚ GALDONES:Any others Jeff? DARROW:That€s it thank you. 8 EXHIBIT A GALDONES:Mr. Yuen. YUEN:And just to explain briefly that, I think the convenience store issue is self explanatory. This is something that was requested by the Department of Public Works. At this- the last sentence gives DPW the power to waive the TIAR when they actually look at the application because it may be that, there€s something different than what was presented but, DPW looks at it and says look this does not warrant having a full traffic study. And so, the way it was worded it didn€t seem to give DPW any discretion not to ask for a TIAR. So that€s the purpose of the last sentence. And I think there€s one slight change as well, in the first sentence in F. where it talks about conversion of two buildings of approximately 1100 square feet each for office or retail use that should be construction of two buildings because those are not existing buildings. The first building that we talk about there is a conversion, the conversion of a home to office. The second, they€re proposing construction of new buildings rather than conversion. GALDONES:Mr.UmphreyhavingheardtheamendmenttoConditionFdoyouhave any comments to that amendment? UMPHREY:No I don€t. GALDONES:Commissioner Graham? GRAHAM:Mr. Umphrey, maybe you heard us, I€m sure you heard us when we were asking questions before. At least a couple of us have some concerns about the actual rezoning couldn€t take effect until some time in the future based on these roadway things and so, obviously one thing we€re weighing in our minds is whether it€s appropriate to approve it now or whether it should be resubmitted at such a time when it can take effect more immediately. Do you have any comments on, you know, how that impacts you and how you feel about that discussion? UMPHREY:Well, as an owner of the property if it€s not approved at this time subject to the conditions then I would expect that the property would likely be resold and we would just withdraw our interest in having this property rezoned. We have an interest in the property immediately north of this present, and we€re trying to make decisions on what makes sense with both properties together. So if we were to turn this one, if you were to say you want us to come back and reapply 2 or 3 years from now, I couldn€t give you an answer on that, whether we would or we wouldn€t, I don€t know at this point. GALDONES:Commissioners any further questions of Mr. Umphrey? Seeing none. Mr. Umphrey you may stay there, however there are 2 individuals who have signed up to testify, Jerry Herbert and Jan Bovard. Could you please come forward. HERBERT:Hello, my name is- GALDONES:I need to swear the both of you in. Mr. Umphrey could you loan the microphone to, kind of move it down to Ms. Bovard please. Thank you. Could you please raise 9 EXHIBIT A your right hand, so I may have you sworn in? Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? HERBERT:I do. BOVARD:I do. GALDONES:Ma€am, shall we start with you first. Could you please state your name and your residence address? BOVARD:Okay, is this on? My name is Jan Bovard and I€m representing the Daifukuji Soto Mission which is in Honalo just south of this project. And, before I go on, I€m just going to read my letter that I gave you. I€m very hearing impaired so if I€m redundant here, I haven€t heard much of what€s been said. So, I€ll just read this and if you have any questions, I willtrytoanswer. DearCommission,Ihavereadallthedocumentsbythevariousagenciesthatwouldbeinvolved in the Umphrey project. I have read the recommendations by the Planning Department and I am pleased to see the infrastructure conditions attached to the recommendation. My concern at this time is past history on zone changes. Non-conformance of conditions seem not to be addressed once the zone change has been granted. Case in point, the Fuku Bonsai Garden property that was zone changed from agriculture to commercial. After two extensions the property now has 20 or more derelict Sealand containers parked inside a chain link fence right on the boundary line of the road with no landscaping and is not conducting the business that was designated in the zone change. Nor has the plot plan submitted been adhered to in any way. This appears to be land speculation of the most blatant sort and an eye sore to those of us driving by everyday. With this in mind I am objecting to this zoning change until the needed infrastructure takes place. Since this project cannot more ahead without these improvements, changing the zoning now could result in unseen difficulties. The many projects that were okayed over the years without proper infrastructure have cause severe consequences in our quality of life. Our roads are clogged and dangerous. Insurance companies have raised rates by 14% for this island because of the higher than Oahu percentage of accidents per population numbers. Although I have been informed that the Umphreys are nice people, once this zoning is changed they may choose to sell this property to someone that has a completely different idea of what they want to do with it. There can be no harm in waiting but much harm in haste. This property was purchased under the present zoning and the buyer knew this and made the choice to buy. Once again I request that this application be shelved until such time that proper infrastructure is in place. Thank you. GALDONES:Commissioners are there any questions of Ms. Bovard? Thank you Ms. Bovard. Mr. Herbert could you please state your name, your residence address and then you may begin your testimony. HERBERT:My name is Gerry Herbert and my wife and I, Nancy live in Honalo right down stream from this development. Our address is Box 906, Kealakekua. Basically, this is just a heads up on a possible water problem with this development. We€re avid gardeners and we 10 EXHIBIT A keep a rain gauge out there and last year we had 123 inches in this part of Honalo and that adds up to a lot of water. And, from our rough estimates on this proposed development with the 27 parking lots and the 3 buildings, that could be well over a million gallons of water that they have to deal with. And all of this water because of the way Mamalahoa Highway is connected will go right down into the Kawanui Drainage way, right to the south of this property. And, so we€re very concerned because every gallon of water that comes off of this property will come right through our property and could have a impact on our house. So- and I€m not sure whether a small dry well will have in control one million gallons of water. So basically what I was proposing is that you would have a heads up that this might be a big problem down the line but we wouldn€t know what until another water event like last year. So, thank you. GALDONES:Commissioners any questions of Mr. Herbert? Commissioner Springer? SPRINGER:This is not a question for the testifier, but given his testimony I€m wonderingifwe€reanticipatingthatConditionKaddresseshisconcernsandifwedoholdthat opinion, I€m not sure that it does. It reads, All development-generated runoff shall be disposed of on site and shall not be directed toward any adjacent properties‚. A concern that I would have is that development may change the way water which is generated off of site moves across the site and have some of the impacts the testifier has articulated for us. And I€m wondering if staff or the Director can let me know if I€m on the right track. DARROW:This might be a better question for our representative from the Department of Public Works. If I might also bring your attention to Condition L as well, requiring a drainage study. GALDONES:Mr. Emler. EMLER:Okay, as you can see in Condition K, does address the requirement, which is our normal condition or requiring that all development generated runoff be mitigated on site. And that is generally done by dry wells or drainage sumps. Then to confirm that, that has been adequately addressed, we do require under Condition L that a drainage study be prepared by a licensed civil engineer and submitted to Department of Public Works prior to issuance or a construction permit so that would be either a grading permit or a building permit. SPRINGER:Mr. Chair. GALDONES:Commissioner Springer? SPRINGER:I€m still wondering though the language reads, Development generated runoff‚, I€m wondering if the development itself changes the way the water which is generated off of site, moves across the site is- would be noted in the drainage indicated in Condition L. EMLER:We would be looking at that in the drainage report. I would like to say that the requirement for the drainage report would have some level of mitigation regarding what is the recurrence interval of the storm, design storm. We would require that they address, at least under this condition, a storm having a 10% chance of occurring in 1 year. That would be the 10 11 EXHIBIT A year storm. So if you wanted to address something with a higher recurrence interval we would have to make that a special condition. SPRINGER:Thank you. GALDONES;Commissioners any further questions? Hearing none, thank you Mr. Herbert. Mr. Umphrey having heard the testimony do you have any closing statements that you would like to make? UMPHREY:No Mr. Chairman. I think we fully understand the implications of a project like this in a bottleneck area of Honalo. But, we feel that so far everything is being addressed and we don€t have any concerns. I think it will work its way through and eventually allthesemattersaregoingtobe-willberesolved. GALDONES:Thankyou.CommissionersanyfinalquestionsforMr.Umphrey? Hearing none, Commissioners it comes with a recommendation from the Planning Director that it be favorably recommended and forwarded to the County Council bearing in mind also that there were amendments that were made to Conditions F on the third line conversion be replaced by the word construction and also a TIAR be required for construction of a convenience store and also the TIAR may be waived. There also was an amendment to Condition H, in reference to sight distance meeting the approval of the Department of Public Works. IWASHITA:Mr. Chair. GALDONES:Commissioner Iwashita? IWASHITA:This is a procedural clarification. Is it appropriate in the order of business to- for the Commission to consider a motion for unfavorable recommendation to the County Council on the matter? YUEN:Yes, at this point the Commission can have a discussion about what it wants to do. If the Commission wants to make an unfavorable recommendation then that is the Commission€s prerogative. We would ask on the Department side that the people- and this is true with respect to a recommendation like this and even more true with respect to a permit. If the Commission wants to go unfavorable when the Department is favorable, the Commissioners who are making the motion explain the reasons for that. And this is because, the end result we will, we also serve the Commission and we will put together a letter for the County Council that explains why the Commission did what it did. So, if the Commission makes a recommendation that follows the staff recommendation we recycle the staff recommendation and send it up to the County Council unless the Commission has wanted to put in something different. If the Commission is making, wants to make an unfavorable recommendation then the Commission should have some discussion and give us some explanation and then we will put that together for the County Council. 12 EXHIBIT A IWASHITA:Thank you. ALAMEDA:Chair. GALDONES:Commissioner Alameda? ALAMEDA:I just wanted to share with my fellow Commissioners that my only issue with the Condition E was how the applicant felt about it and in hearing what the applicant has stated, you know, I€m okay with that Condition E. So, just for the record, if we would move forward on making a motion I€ll be in favor of it. GALDONES:Commissioner Iwashita? IWASHITA:I would like to make a motion Mr. Chair. GALDONES:A motion is in order. IWASHITA:Thank you. I move that the Hawaii County Planning Commission make an unfavorablerecommendationtotheCountyCouncilonapplicantJackandBarbaraUmphrey, REZ 03-032. GALDONES:Is there a second to the motion? SPRINGER:Second. And I€m seconding the motion as I€m looking at Condition E and the either/or of it. I would be much more comfortable going with the first condition which is the completion and opening of the Mamalahoa Highway bypass road to the Napoopoo Junction. Although I suspect that commercial development would prefer to occur before that bypass road is in place because of course there will be a reduction in traffic passed in sort of commercial location when the bypass road is complete. But, per Mr. Yuen€s request that€s my concern with the proposed project. GALDONES:It has been moved by Commissioner Iwashita that the Jack and Barbara Umphrey change of zone application, REZ 03-032 be given an unfavorable recommendation and be forwarded to the County Council. Are there any further discussion? Commissioner Graham? GRAHAM:I€m in a situation where, I€m supportive of what the Planning Commissioner has put forward and what we€ve heard today for changes but I€m also very cognizant of my own concern about so much contingency and Commissioner Iwashita€s comment that, if we put stuff in place now and then whatever community plan, whatever else transpires in the next few years, what we€ve put in place is already there and we have to go along with that so to me it feels unnecessary that we approve something today that will kind of lock in stone. Something that may take place in a few years and there may be other considerations that are apparent then that are not apparent now so I€m thinking, I€m going to be supportive of this motion even though I do not disagree with the Planning Director€s recommendations in general. IWASHITA:Mr. Chair. 13 EXHIBIT A GALDONES:Commissioner Iwashita? IWASHITA:Thank you. As I stated earlier, because of the uncertainty of the timing of when this zoning would actually take place, if it ever did take place in the future and the fact that with the Community Development Plans that are going to be worked on in the next year or so and adopted by law by the County Council as part of the General Plan process that it seems to me counter productive or at least creating a gray area. If we send this on for favorable recommendation and the County Council adopts it that now we have conditions in place under, essentially at the time it comes into effect, will be old law and that the changes that may occur under the community development plan process will be run up against a legal dam on this particular project because it really couldn€t be implemented. So, I think it€s better procedure and policy for us to not give a favorable recommendation on this project since there are so many uncertainties time-wise as to when or if it ever will take place and allow our planning process to go forward and in the future if the owner wants to come forward with a project that conforms to those new laws whether they be design changes to zoning ordinance and building codes and so forth and the community development plan that it can be done on that basis. Thank you. GALDONES:Mr. Yuen. YUEN:I just wanted to say a couple of things on issues that came up because I said earlier that I want to discuss the question of passing it with conditions versus saying no for now and I also wanted to talk about the Community Development Plans. I don€t want us to be in a position where we are, in effect, having a moratorium while the Community Development Plans are being prepared. That could- first of all the Community Development Plans are probably about a 2-year process to get that done. I also, on this zoning in particular, I doubt that the Community Development Plan would tell us much that was that specific to this site. It€s still, although a Community Development Plan is at a more specific, less general level than the General Plan, I don€t think we€re going to get into a lot by lot sort of planning that€s going to tell you this lot should be- this half acre lot here, which is what this is, should be commercial. This half acre lot should be a multi-family building. This lot should be a gas station. There may be that in a very confined area but I just don€t think that€s where the plan- the plan is going to tell you that much more for- that€s going to change the decision that one would make for an application like this. It may be that there is an application that we would say, well maybe we should wait for a community development plan for that but I€d really, on the scale of this application I, that€s my sense of that. On the more general question ways of waiting and rejecting versus passing with these conditions- people do come in with applications and then, I€m just raising the practical aspect of this. And then the Department works up the application. We look at it. We don€t- we try not to pre-judge them. At the end of the day and in looking at this application, we have a lot of concerns about the access and so we put these conditions in. It€s likely, if you reject it and tell them to come back. Some day they will come back and we will go through the same process again very likely. So that€s my concern about- and one practical for passing with conditions rather than saying no just wait and come back in 3 years or so when some of these other things have hopefully been solved. It does result in approval but cannot be implemented right away. That is a down side to it and it€s a downside much more for 14 EXHIBIT A the applicant though than for anything else. So, with that, the only other thing I€d ask for is that- Maker of the motion, you had mentioned your reasons for this I think in the previous discussion but I think for the guidance of the department if you would repeat that and fresh that out a little bit in this discussion about why you were moving to reject so that we have something firmly on the record if that is in fact the direction of the Commission. IWASHITA:Sure. Can I address that? GALDONES:Proceed. IWASHITA:Thank you Mr. Chair. The main reason that I bring your motion in this way is because of the uncertainty and time created by the condition for the road improvements or highway improvement being completed. As a precondition to the effective date of any legal zoning change and the effect on the owner obviously is that, owner can€t do anything with the property.Youwouldhavesomethinginhandthatisessentiallyuselessbasedonaconditionout of your control up until whenever. You know if the Hawaii Supreme Court sustain Judge Ibarra€s injunction then that condition will never well- it will be way out in the future because in order for Hokulia to go forward they would have to go to the Land Use Commission and do the whole Land Use Commission process and get those changes done before the project could continue on. That€s years and years and years down the road. The County has not done one thing on the left turn only condition and that by definition is years and years down the road in just in terms of planning, not to mention funding and all of that. So, it€s really a very, in my mind from the owner€s side very impractical time wise as far as having this go forward. Based upon that definite uncertainty my concern is that many laws can be changed and there is much discussion now about the traffic problems and how the County needs to address the traffic problems developing on this island. One of the things that we€re looking at is sustainable growth law changes to our zoning code, to our building code and those changes in my mind if they€re going to happen will probably happen a lot sooner than any, either of these road conditions being met. And so, I believe that it€s best policy and I€m not suggesting a moratorium, but under the circumstances of this case because a condition is for the improvement of these roads that are, in my mind may never happen. It€s a good likelihood that neither of these improvements would ever be done and then you€ll have this law sitting out there that will never ever take effect. It€s not good policy in my mind to do that and the fact that we will hopefully have changes in our zoning and building codes that will directly effect this and all other development in the future and how it€s done, not on a per parcel basis but generally as how we as a County go forward with development and improvements to minimize traffic problems won. That is a reason that I believe we should make an unfavorable recommendation to the County Council on this particular case for those particular facts. GALDONES:Further discussion? Jeff, I€m not so sure but, have not the Planning Commission made some approvals on condition that future developments do occur before it triggers the approval of that project proceeding. DARROW:As long as I can remember, which hasn€t been too long, I think it€s been about two years. I believe just before I came on board, Cliftos was a application that had a similar concurrency issue. In regards to others, I€m not aware of any that I€ve worked on. 15 EXHIBIT A Maybe the Planning Director would remember any other applications that had a condition similar? GALDONES:Mr. Yuen? YUEN:There have been rezonings granted that were contingent on future road construction. Not in our administration, but several years before, there was at least one rezoning, a large rezoning in the Keauhou area that depends upon, that says that, it doesn€t happen, construction doesn€t happen until Alii Parkway is constructed. I think there€s more than one of those frankly. So, there, it has happened before yes. That there are rezonings that are subject to future improvements being made that are not under the direct control of the applicant. GALDONES:Commissioner Springer? SPRINGER:IwasjustgoingtocallourattentiontotheJimmyGreenwellapplication off of Kaahumanu Highway. But I wonder if we could have also a comment from Mr. Torigoe on what will transpire with regard to this vote if there is not unanimity to it? GALDONES: Mr. Torigoe? TORIGOE:Thank you Mr. Chairman. Rule 11-3 B says that within 90 days after receipt of the application, unless a longer period is agreed to by the Applicant, the Commission shall transmit his recommendation to the Council and if the Commission fails to act on an application within the 90 day period it shall be considered an unfavorable recommendation and the application shall be transmitted through the Mayor to the Council with that recommendation. Again, so basically, I think we€re way beyond 90 days that this has been with the Commission and so, if you fail to make a recommendation with 5 votes one way or another at this point, the Applicant basically has a choice to ask you to extend the period further and take another vote. If the Applicant says no, I€d just like to send it up with the default, negative recommendation then that will occur. SPRINGER:Thank you. GALDONES:Any further questions? Further discussion? Hearing none, Jeff for the vote. DARROW:Thank you Mr. Chairman. Commissioner Iwashita? IWASHITA:Aye. DARROW:Commissioner Springer? SPRINGER:Yes. DARROW:Commissioner Alameda? 16 EXHIBIT A ALAMEDA:Nay. DARROW:No. ALAMEDA:No. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:And Mr. Chairman? GALDONES:No. DARROW:Themotiondoesnotpass3to2. GALDONES:Mr.Umphreyyouwillbeinformedinwritingoftoday€sactions. YUEN:Mr.UmphreyjusttoreiteratewhatDeputyCorporationCouncilsaidand explain your options here. You have the option, you have 2 options, you can take this as a last thing with the Planning Commission and then it goes to the County Council with a negative recommendation. We send the County Council a letter saying that the Planning Commission voted 3 to 2 against the project and that this, because you did not have 5 votes in favor and so it€s a negative recommendation. We will explain the reasons given by the Planning Commission for this particular vote. We will send out along with the Department€s recommendation and the ordinance with the conditions that the Department had recommended. Your other option is to have a further hearing with the Planning Commission when there may be more members here and your hope that you can get a favorable vote out of the Planning Commission. And that€s up to you, you don€t need to make that decision right here. We would like to know pretty soon, whether we should schedule this for another round with the Planning Commission or we should just send it up to the County Council with this negative recommendation. UMPHREY:Thank you Mr. Yuen. This discussion ended at 10:18 a.m. Respectfully submitted, Lynette Sanemitsu, West Hawai i Secretary 17 EXHIBIT A