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HomeMy WebLinkAbout2006-05-05 TSeascape PLANNING COMMISSION COUNTY OF HAWAI€I HEARING TRANSCRIPT MAY 5, 2006 A regularly advertised hearing on the application filed by SEASCAPE was called to order at 5:05 p.m. in the DEVELOPMENT, LLC (ORD. NO. 04-106) County Building, Councilroom - Room 201, 25 Aupuni Street, Hilo, Hawai€i with Chairman C. Kimo Alameda presiding. PRESENT:C. Kimo AlamedaABSENT & EXCUSED: Jeffrey McCall Fred GaldonesRodney Watanabe Bill GrahamRene Siracusa AndrewIwashita Allen Salavea Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner APPLICANT: SEASCAPE DEVELOPMENT, LLC (ORDINANCE NO. 04-106) Amendment to Condition H (construction of Kakahiaka Street extension) as required in Ordinance No. 04-106, which rezoned 10.001 acres of land from an Agricultural 5-acre (A-5a) to a Multiple Family Residential „ 4,000 square feet (RM-4) district. The property is located on the south side of Kona Palisade Subdivision, approximately 1,200 st feet south of the Kaiminani Drive „ Kakahiaka Street intersection, Ooma 1, North Kona, Hawaii TMK: 7-3-10: portion of 3. ALAMEDA:Right now weve got an application, this is Agenda Item No. 9. Its the Seascape Development. We pretty much reviewed this application already as a committee. Weve heard the background reports, we know the recommendation made by the Department. Weve also had the opportunity to discuss it. Theres no testimony today. So what I would like to do is maybe just move forward with the discussion again, or somebody simply make a motion and well just take a vote on it; and whatever way it fall, it falls. Mr. Fuke, is that okay with you? FUKE:Can I just make one plea? ALAMEDA:One plea? FUKE:Yeah, Ill be very brief cause I know its really late. ALAMEDA:Okay. 1EXHIBIT E FUKE:Yeah, one last stab, you know, hopefully to get this thing off the table. But, you know, just kind of reflecting on the last hearing anyway on this matter. I think there was a consensus amongst the Commissioners there that it makes good planning sense to have roads or streets extend to the end of the property line and, you know it increases potential for roads to connect and all that stuff. And I think we also acknowledged that the adjoining property owner, in this situation here the State, they have no plans, well, not right now. But if and when they do it, then you know, at some point in time the roads have to connect. I think we also, the point I was trying to make, too, is that when you create like a 400-foot section thats going to be deadened then it becomes like a haven for, you know, illicit activities to occur, trash and all that kinds of stuff. So it creates a very apprehensive situation for residents in that area, and as well as for the County to eventually maintain that small little section. And I think there was also a consensus that if they defer the construction of this road that at some point in time it has tobethedevelopersresponsibilitytoconnectanditshouldntbeaburdenplacedonthe County or the general community. I think we all agreed on that. So what we €re trying to do is like how can we arrive at a win-win situation where we can kind of protect the residents in this area, avoid the potential for future maintenance and liability on the part of the County if this road gets constructed, and at the same time making sure that when this road is needed the developer is held, you know, his feet is held to fire, basically. And I think what your Planning Director has proposed based on the suggested recommendation of Commissioner Iwashita at the last meeting I think accomplishes that. ALAMEDA:Fellow Commissioners, you have any questions for the applicant? It puts us in a discussion mode or a motion mode. Go ahead, Commissioner Graham. GRAHAM:Sidney, I dont remember the exact timing but just reflecting back to the last meeting, I remember when I expressed my concern I had the sense that you kind of walked away, not walked away, but that you kind of had some wheels clicking like maybe you had something different that you thought you might put forth when it came forth again. But maybe that was just in line with what Commissioner Iwashita proposed. Maybe he proposed it later, I dont remember. But, so Im just sort of probing, did you have some thing different or is there anything different? FUKE:No, I think that what Commissioner Iwashita came forth with and as kind of reflected in the Planning Directors memo, you know, really ties the property owner down for bearing the responsibility. Because I think the language said covenant shall include an obligation to authorize the County to foreclose upon the encumbered property. So that means that if he doesnt do it, then the County will foreclose, get the property, sell the land and build the road. Thats kind of my understanding. So I think that from that standpoint the public or the County is protected in the event there is nonperformance on the part of the landowner. 2EXHIBIT E GRAHAM:Is that a new Planning Directors memo since our last meeting or -? th FUKE:I dont know, this is something I received April 27. th DARROW:Its dated April 27. It should be the light yellow sheet right there. Its on the back page. FUKE:And I think this is the bond that I think that everybody was looking for. Cause now you have a guaranteed bond to assure that the road will be constructed at some point in time. GRAHAM:Yeah, permanent running, Im coming down near the bottom of it there, ‚the obligation shall be secured by a covenant running with the land recorded against at least one of the parcels created by Subdivisionƒ such and such. So thats, as I recall the general layout, there are several parcels, and one of the parcels is this one where the affordable housing will be. But we dont have any construction timetable or anything firm at all about what will go on and when it will go on on the additional parcels. FUKE:Thatiscorrect.IfIcandirectyoutothismaphere,thedeveloper is already constructing this road up until this point over here. So what hes asking for is relief from maybe approximately like 400 feet over here. This is the adjoining State land which is this parcel over here. And the State has, at this point in time no plans to do anything. So what the proposed condition is saying is that there has to be a covenant on one of these parcels, and probably it would be this parcel here cause its adjoining, you know, this section thats undeveloped, they would be obligated to complete the roadway. The developer would have to complete it or, alternatively, the landowner of this when the County asks for it would have to complete this section. Otherwise the County just calls in on this property here, and uses the money and build the road. Thats the way I understand how its supposed to work. GRAHAM:Mr. Torigoe, could you give me any sense of whether you read this to be as portrayed by Mr. Fuke? TORIGOE:Yeah, its almost like a bond, you know, a secured bond kind of a situation where theres a promise on the part of the developer to make sure that this happens. You know, when the State does do something that would call for the road to be built, that basically there would be a covenant on the land that -. Its like an agreement that the developer is going to do it; and if the developer fails to do it then the County would have the ability to basically sell the land and use the proceeds to build the roadway. FUKE:Just for your added information, Commissioner Graham, at the last meeting I had asked the developer what the estimated cost to construct this remaining 400- or 500-foot section. He said it costs approximately about $250,000. So this one 3EXHIBIT E parcel that would be encumbered with that is about 10 acres in size, 10 or 12 acres in size. So Im sure that value is more than $250,000. GRAHAM:I guess though, you know, I dont want to be a hard knot on this. But I guess the basic gist of what bothers me is its a leaky building perhaps and everybody is telling me, no, its a good building. But between now and when the time comes, you know, what leaks may occur -. And so I just dont feel totally capable of foreseeing all the leaks and say, well, how about this or how about that? But I know that ten years from now somebody who owns that property will probably have real good eyes and see the leaks. So, you know, what might the leaks be? Well, suppose the property gets rezoned and subdivided in the meantime, the one upon which the covenant is assigned, and where does that all go legally? Well, I really dont know. Its just all the kinds of things that I just cant foresee. But Id hate to sort of throw away for public benefit something that I feel I can get lost but I cant foresee all the ways I can plug all theholes. ALAMEDA:Goahead. FUKE:Well,Icanunderstandtheconcern.However,likewhatthe proposed conditions would be, like, if there happens to be like a leak 10 years, to use your analogy, if there happens to be like a leak 10 years from now, then youll have the funds to correct that leak. If youre concerned about, well, what if the land is further subdivided, etc., then if it gets further subdivided, it would still be subject to the review and approval of the, excuse me, of the Planning Director. If, because those properties are, you know, the encumbered properties are still zoned for 5-acre lots right now. So if at some point in time they come in for a subdivision, then there are probably going to be some improvement requirements to service both. I can tell you that the applicant right now who also owns the remaining three parcels will be filing for a State Land Use Boundary Amendment for the remaining area to continue this type of a project; and at some point in time that road is going to be connected even prior to the, I believe, the need to execute this condition. But what they didnt want to do is to, you know, place all of the burden up front on this particular development. GRAHAM:I understand; and certainly on the ground its very reasonable in my mind. Could I ask Mr. Torigoe, again, just regarding the underlined words here that are added to the condition, it says, ‚Said covenant shall include an obligation to authorize the County to foreclose.ƒ It seems like a lot of words to say, and the covenant grants authority to the County to foreclose. Is there any leakage in the words there that I should be concerned about? TORIGOE:Well, I think the intention is just basically as you stated. I think its quite clear the intention is to craft something that is going to run with the land and that will be recordable; and anybody who is interested in buying the land, and that a title 4EXHIBIT E report would see an encumbrance running with that land, that will be kind of like a mortgage sitting on that land. So this just states the general intention which I think is quite clear. And the exact instrument and exact wording of that instrument is going to have to be worked out by lawyers on both sides. But the intent I think is pretty clear. GRAHAM:Is there any reason why we say it shall include an obligation to authorize rather than just say shall authorize? TORIGOE:Well, I think when it, I mean, I helped draft that language and I think we said include an obligation to make it a little more imperative that there will be like a legal obligation that is clearly stated, you know, on the part of the landowner that makes it quite clear that the County is authorized to go ahead and do this thing. GRAHAM:But by saying an obligation to authorize rather than just saying authorize-? TORIGOE:Well,ifyouwanttoremovethatlanguageandifthatwill,you know, if that makes you more comfortable, I would have no problem with that. GRAHAM:Is there any up or down as you see it from your perspective to remove ‚shall include an obligation to authorize?ƒ TORIGOE:Well, I suggested that language myself to try and make it a little stronger, that is to make it quite clear on the record that this is an imperative legal obligation. Its not, you know, not something negotiable. IWASHITA:I have something to add to this concern. ALAMEDA:Go ahead, Commissioner Iwashita. IWASHITA:I suggest that the last two sentences of the new proposed Condition G say, ‚The obligation to build the road and the Countys right to recover all costs and expenses to enforce the obligation shall be secured by a covenant running with the land recorded against at least one of the parcels created by Subdivision No. 02-000051, or the applicant may build the road or bond its construction. Said covenant shall grant the County the power to foreclose upon the encumbered property to satisfy costs of building the road under public procurement procedures, which costs and procedures shall be as determine by the Director of Public Works.ƒ GRAHAM:That reads more straightforward and sounds better to me, but Im certainly willing to hear if theres any problem with that. ALAMEDA:Okay. FUKE:Well, I think the intent is there so whichever way the three attorneys that you are surrounded with decide, I mean, thats fine with us. 5EXHIBIT E ALAMEDA:Okay. Well, if thats okay with the Director, that language? YUEN:Its all right with us. ALAMEDA:Okay. Do I hear a motion? Commissioner Iwashita. IWASHITA:This essentially is change of zone amendments, so we use the same language. Okay, I move that a favorable recommendation be forwarded to the County Council on the application for change of zone Docket No. REZ 1047, Seascape Development, LLC Change of Zone Ordinance 04-106, amendments to Conditions H and G. Is that right, there are two now? GALDONES:Mr. Chair, I believe its amendment to Condition H which will be renumberedasG. IWASHITA:Oh,okay,thatscorrect,right. DARROW:WealsohavethedeletionofConditionE. IWASHITA:AndthedeletionofConditionE,okay,togetherwiththe renumbering or relettering as noted in the proposed recommendation by the Director, together with the changes noted on the record to the last two sentences to the new Paragraph G, based on the Planning Directors recommendation and proposed conditions as amended. ALAMEDA:Very good. Is there a second? GALDONES:Ill second. ALAMEDA:Okay, motion made by Commissioner Iwashita to send a recommendation of approval for this application with the noted modifications, amendments; and a seconded by Commissioner Galdones. Discussion? Seeing none, staff. DARROW:Thank you, Mr. Chairman. Commissioner Iwashita? IWASHITA:Yes. DARROW:Commissioner Galdones? GALDONES:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. 6EXHIBIT E DARROW:Commissioner Salavea? SALAVEA:Aye. DARROW:And Mr. Chairman? ALAMEDA:Aye. DARROW:The motion passes five to zero. ALAMEDA:Thank you. FUKE:Thank you very much. ALAMEDA:Thank you, Mr. Fuke. IWASHITA:Good night, Mr. Fuke. ALAMEDA:Good luck and good night, or was it the other way around. The discussion ended at 5:25 p.m. Respectfully submitted, Sharon M. Nomura, Secretary. 7EXHIBIT E