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HomeMy WebLinkAbout2022-11-17 Leeward Exh D (Item 2 Nakoa PL-REZ-2022-000017) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT NOVEMBER 17, 2022 A regularly advertised hearing on the application of SHAWN MAILE NAKOA, ESQ. (PL- REZ-2022-000017) was called to order at 11:06 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, Clement"CJ" Kanuha III, and Zaheva Knowles RECUSED: Mahina Paishon-Duarte ALSO PRESENT: Keyra Wong, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Jeffrey Darrow (Deputy Planning Director), Christian Kay (Planner, covering for Planning Program Manager), Jessica Andrews (Planner, via Zoom), Maryam Palma(Planner), Janice Hata(Zoom host), and Noriko Sauer(Commission Secretary) APPLICANT: SHAWN MAILE NAKOA, ESQ. (PL-REZ-2022-000017) Application for a Change of Zone from an Agricultural-5 acres (A-5a) to a Family Agricultural-1 acre (FA-1 a) zoning district for 5.29 acres of land. The subject property is located at 77-6632 A Kuakini Highway, approximately 0.25 miles northwest of its intersection with Kamehameha III Road, Pahoehoe I"-Kapalaalaea 2nd (Beach Sec.),North Kona, Hawaii, TMK: (3) 7-7-008:062. VITOUSEK: New Business, applicant is Shawn Maile Nakoa, Esquire, PL-REZ-2022-000017, application for a Change of Zone from Agricultural-5 acres to Family Agricultural-1 acre, FA-la, zoning district for 5.29 acres of land. The subject property is located at 77-6632 A Kuakini Highway, approximately 0.25 miles northwest of its intersection with Kamehameha III Road, Pahoehoe I"-Kapalaalaea 2nd Ahupua`a, North Kona Moku, Hawaii Island, TMK: (3) 7-7-008: parcel 062. Again, we have a staff presentation by Jessica Andrews. Oh ANDREWS: Thank you VITOUSEK: Mahalo, one second, Commissioner Paishon-Duarte will make an announcement. PAISHON-DUARTE: Thank you, Chair. I would like to recuse myself, please, as I'm related to the applicant. VITOUSEK: Mahalo. 1 EXHIBIT D ANDREWS: Thank you, Chair. Aloha, Commissioners. My name is Jessica Andrews, and I am presenting the application for Shawn Nakoa rezone. Just give me a moment while I share my screen. As was previously stated, this is a Change of Zone application for Shawn Maile Nakoa, Esquire. The subject property is outlined in red. It is located on the makai side of Kuakini Highway in Kona. The applicant's request is a Change of Zone from an Agricultural 5-acre, A-5a, zoning district to a Family Agricultural 1-acre, FA-la, zoning district for 5.29 acres of land. The objective of the request is the applicant is a court-appointed partition commissioner who has been vested and authorized by the Third Circuit Court to subdivide the subject property into three lots consisting of a minimum of one acre each as required by the Stipulated Order Adopting Commissioner's Report 41, filed October 4, 2021, and Directing Partition in Kind of Property Pursuant to Proposed Plan for Three-Lot Subdivision, filed on December 28, 2021. The parties to the Order are the landowners of the subject property. The Order directs the applicant to perform the three-lot subdivision and encourages the County of Hawaii Planning Department, Department of Public Works, and all other relevant government agencies to facilitate the commissioner's efforts to subdivide the subject property in the manner set forth in the Order. The County zoning for the subject property is A-5a currently, as are several lots to the south and west of the property. Also nearby are Single-Family zoning, RS-10, RS-15, and to the east across the highway is an FA, Family Agricultural 2-acre series of lots. State Land Use Boundary Map shows that the subject property is designated Agricultural, and as are several properties surrounding it. Most other properties surrounding the subject parcel are designated Urban, and to the west, sorry, east is more Agricultural designation. The subject property outlined in red again is part of an expanse that is designated Urban Expansion. As you can see, all of the lots makai of the highway are designated Urban Expansion, and mauka of the highway is Low Density Urban. This is a section of the Kona CDP map, and you can see the subject property outlined in blue. And essentially, the proposed rezone is consistent with the KCDP, which designates the property within the Kona Urban Area and adjacent to the Kahalu`u Neighborhood TOD; as you can see on the map, the TOD is just adjacent to the property to the south. The subdivision map that was provided by the applicant shows that the lot is proposed to be subdivided into three parcels as shown. The aerial photograph shows that the property has some existing development on the mauka side of the property, and otherwise it's undeveloped, as far as construction and buildings. This is a view of the subject property from Kuakini Highway. The access that is currently used is marked with the two orange markings, or bollards, that are there on the right side of the highway. 2 EXHIBIT D And here you see a view of Pomaika`i Street looking south on the lower left and looking north on the upper right. This is the access to the subject property. The Deputy Director's recommendation is to forward a favorable recommendation to the County Council. And with that, I'll hand it back to the Chair. Thank you. VITOUSEK: Mahalo. Applicant's presentation. Would the applicant step forward? Aloha. Would you all please raise your right hand? Do you swear or affirm to tell the truth on the matter before the Planning Commission? APPLICANT AND REPRESENTATIVES: [Nod in affirmation] VITOUSEK: Mahalo. And please state your name, the town you live in, and proceed with your PIPAN: Aloha kakou. My name is John Pipan, from Honoka`a. CLEMENT: I'm Jeannie Clement. I live in Kalaoa right now, hopefully not too much longer. NAKOA: Aloha and good morning, Mr. Chair, Commission members. My name is Shawn Maile Nakoa, and I live in Waimea. VITOUSEK: Mahalo. Have you received the background and recommendation reports from the Planning Department? PIPAN: We have. VITOUSEK: And do you agree with the recommendations, including any proposed conditions? PIPAN: We do agree. VITOUSEK: Okay, mahalo. Do you have any further comments? PIPAN: Yeah, a few short words about the process we are going through, the situation that the landowners and the family find themselves in. And let me start by saying thanks, mahalo nui, for all of your time, your commitment to this process. It's draining at times. And applications like this, there's a lot going on, and it can be emotional at times. So, bear with me, I'll try to be brief. So, the proposal at hand is for Family Ag on five acres and change—pretty simple. The request should be straightforward on the face of it. This is a local family stuck in a position, trying to settle their estate by two options, either subdivide,which is what we are trying to accomplish right now, or sell. As detailed in the stipulated order that we'll talk about perhaps a little bit more, partition by subdivision is always preferrable to partition by sale. This allows the family members 3 EXHIBIT D to keep their land, right? So, this will be a simple subdivision, if it had the zoning already to facilitate that. It doesn't, so we are engaged in the process officially to rezone, to change the zoning. That's the request before us today. So, through this process, I had to explain to the family that this lengthy and elaborate process is required regardless of the circumstances they find themselves in. We are looking at the General Plan for the area, we are looking at guidance, we are looking at what makes sense for this property regardless of the owner, right? So, that said, this is just a family trying to keep their land. They are not developers. And this is a discretionary permit, so we are not requesting any exemptions from the normal process. We've requested some clarification from certain agencies on their requirements. The conditions that we have before us today, we are agreeable with. So, as Planning staff outlined, this is consistent with the Kona CDP. It's in the Kona Urban Area, adjacent to a TOD but not within the area of the TOD that would be higher density. This is consistent with the County General Plan, LUPAG, for Urban Expansion; we are requesting an increase in density, a modest increase in density, but an increase in density, nonetheless. This would even be consistent with the Kona CDP if it fell outside of the Kona Urban Area, since it is consistent in scale of distributing lots to family members, which is exactly the intent here. I'll respond to some public comments, and it seems like we may have some more, but unfortunately, it seems like there may have been some misunderstanding or some misrepresentations between public comments and testifiers that came forward already. And I've learned through representing a number of these projects to not be too optimistic about expecting little public testimony and opposition on any project. Even so, this organized copy-paste campaign to oppose nearly every change of zone in this area is shocking. The late submission of many of these comments perhaps strategically doesn't permit us to respond in writing thoroughly to those comments. It's, it's kind of hurt, honestly. We don't see a lot of aloha coming in these comments, and it affects all of us, right? We all have to review these comments. We all have to put ourselves in their shoes to some extent. And some of the testifiers have admitted that they moved to Kona recently and are still, you know, saying what should happen with this family piece of land who's been involved with it for generations. You know, maybe the testifier should state how long they've been in Kona before decrying the traffic that they experience on their way through their daily chores or—excuse me. VITOUSEK: Mahalo. PIPAN: Yeah. The sign for this property required was posted in February, and it's been there throughout the application process, it's there today. We mailed out two sets of surrounding property notices to over 300 residents around this property, and that's a real cost in this application. So, to the conditions, Condition M requires sewer connection. It's a cost that has to be borne by the landowners. It's going to be a serious cost, but we found that fighting against the sewer for septic systems is maybe a losing battle, and you really got to pick your fights. So, we'll relent, we'll do the sewer extension, we'll connect to the sewer line for any homes that are developed on these properties. And, you know, a lot of this is discussed up until this meeting, so I understand 4 EXHIBIT D the public testimony may not reflect our latest understanding of what the project will be with these conditions. Conditions come out, you know, a week before, and we have to navigate if we want to ask for amendments to them or if we can live with them. So, we are good with the conditions as they are. Water commitments have been paid and will continue to be paid throughout until the subdivision is completed. And, you know, if endangered species are encountered during the course of this project, of course, DOFAW will be contacted, and their counsel will be followed on how that's treated. All of the species that we are talking about, the pueo, the `io, the pe`ape`a, these are island-wide, far-ranging species, so, you know, again, don't anticipate any impacts to them following those standard DOFAW protocols. Access to Kuakini is going to be prohibited from individual lots, and I don't see just in Engineering or with Department of Transportation review, access to Kuakini at the spot ever being approved. You can see just how far La`aloa had to climb to make the grades acceptable, so, you know, coming straight up that hill not likely to work. Time to complete, we anticipate the final subdivision can be achieved within a year, two years; five years is more than adequate, so a time extension shouldn't be necessary. However, the Commission and the Council wants to handle the standard language around time extensions, we are fine with it, it doesn't make any difference to us. Traffic concerns should be negligible, with only two additional lots, three lots, I mean, it's not even really, it's kind of a joke, but I get it, traffic is bad here. Archaeological resources. A lot of conversation, a lot of effort has gone into clarifying SHPD's condition on how this will proceed. So, we've had a number of conversations, comment letters back and forth, answers, replies, with SHPD—all of it is part of the public record. There's nothing underhanded here; we are just trying to make it a little bit easier for these folks to accomplish what they need to, given that it doesn't appear that they'll need to do any ground disturbance to accomplish this subdivision. So, the trigger for SHPD's request to have an updated archaeological inventory survey done, an AIS done, is predicated on ground disturbance. And the Planning Department has interpreted that in a few different ways over the course of time, and more recently they moved that trigger up to rezone. We'd like to look at it a little bit more closely on this case, and this is what we are asking from SHPD and the Planning Department, to look at what this subdivision is proposing, what this project is, when it's appropriate to have that AIS prepared. We think it's, it's reasonable to accomplish the subdivision without ground disturbance, and when any future ground disturbance is required, the AIS would be triggered at that point. This is within the SMA, so the subdivision requires a Special Management Area Assessment, homes require a Special Management Area Assessment. So, the fact that what we are proposing right now is less that the valuation trigger of$500,000; we are not required to do an SMA Major at this point. Otherwise, you would be hearing the SMA Major presentation now, along with this 5 EXHIBIT D one. So, the SMA Assessment comes next, along with the subdivision application, and SHPD gets a chance to review at that point, and, you know, we'll satisfy all of their requirements. So, I'd like to hand the floor to Ms. Nakoa to talk about the Court's role in this and her role in this, and then we'll hear from Ms. Clement. VITOUSEK: Mahalo. NAKOA: Aloha again. Thank you. Thank you, Mr. Pipan. So, I am here in my capacity as a court-appointed partition commissioner, and in short, Circuit Court Judge Wendy DeWeese has instructed me to subdivide this property. That's what happened in the litigation. And as part of trying to comply with the Court's instructions to me, I've been told we need a zone change, and that's why we are here. I would ask that the Commission make a favorable recommendation to the Council. I'm going to try not to repeat what Mr. Pipan said, even though he stole a little of my thunder—not used to having somebody talk for me. PIPAN: That's my job. NAKOA: In any case, I wanted to point out that in Judge DeWeese's order, she explicitly stated, "Given the parties long-standing connection to the Property and their desire to retain interests in the Property, it is just and equitable to order that the Property be subdivided and partitioned in kind into three lots." As you know, the order further directs me to perform the three-parcel lot subdivision and encourages the County of Hawaii Planning Department, DPW, and all other relevant government agencies to facilitate the commissioner's efforts to subdivide the subject property. I think it's important to understand, and I am going to highlight it, that this project in the scheme of things, from an infrastructure point, from a community point, is a manini project; it really is, just in terms of infrastructure, not manini in terms of what it means to this family, because that's exactly the opposite of what it is for them. The property is old-time Hawaiian-owned property by this family for generations, and all they want to do is go home. We all know that we have a crisis in our State where we have local families, especially Hawaiian families, leaving Hawaii because they cannot afford to be here. Ms. Clement has told me on several occasions that if she cannot be successful in this project and find her way home, she and her family will have to leave Hawaii. That's one more family. And the way I look at it is that right now, today, in this forum, this is where the rubber meets the road, and I think that this issue of Hawaiian families, local families, leaving, that's the issue, and this is one family, and I think that this body can act on that and help that crisis that we know is happening. So, again,just to, I will end with again respectfully requesting that you folks make a favorable recommendation to the Council, and mahalo. VITOUSEK: Mahalo. Ms. Clement? CLEMENT: Thanks, eh, make me cry. I'm the granddaughter of Jeannie Ka`ehukaiokahalu`u Nahale who was given this property that we are talking about by her father, Charles Kuakini 6 EXHIBIT D Nahale. I grew up on that property. I grew up on that property during a time when there was nothing, north, south, or makai of that property. You could see miles of nothing,just beauty, green and beauty. It was a child's treasure trove to be able to go and holoholo wherever you wanted to go. I know every inch of that property. Some of us that were way kolohe, and I was one of those. We went from the top of that property, traversed all way down to Ali`i Drive, hopped the wall, and swam at Kahalu`u Beach. Every artifact, every piece that was important to my family was told to me. It's not, it's not unknown, we knew. And so, as every piece was sold, year after year, until this remaining five and half acres, we knew, I knew, I knew where they were. This is my attempt to preserve what we have left. That ahupua`a was my family's ahupua`a. I have a map from I don't know where, 1730, hundreds of years my family has lived and flourished and grown on that property. And through years, it's been divided, subdivided,people have owned it. Other families became part of that ahupua`a, which is amazing, Hawaiian families that we love, that we want to keep. And that's my intention todaysorry, I've got to put my eyes on so I can read this. On that property we raise cattle, chickens, pigs, occasionally we had goats. If Uncle Cyrus found one on the road, we brought it home, and we raised it, along with her herd of kids and family members. It has been and will be my family's legacy to perpetuate the sacred cultural things that is Hawaii. I cannot afford to buy a home right now in this place that I call home. And soon if I'm forced into continuous arduous processes, I will not be able to afford to live on the land that I'm so privileged and honored to have, to have been inherited. This isn't right. We know that. I'm certain my ancestors right now are shaking their heads in horrible fear and awe, wondering what were all our efforts for? How did we, how did we do this for our people that are coming after us? I want to believe the Planning Department process is about helping people like me, like us, to come and continue to live the true culture of this land, not listen—and please don't listen to the divisive language that was used in a lot of these representations or the cultural cancelling comments that we've heard today. It's not fair. It's not fair to us that have been here for generations, a koko and a kino, it belongs here. Sometimes those people don't get it. That's okay, we can teach them by being good people of the land, good stewards of the land. I'm not asking for large concessions or community sacrifices. In fact, I think I made efforts to improve the community. When I came home you know, I left, I want to tell you this story real quick, and I'll make it very quick. I didn't realize how relevant it was until today. When I was leaving for college, I was standing on that Kuakini property, and my uncleI didn't want to go, I said I don't want to take the scholarship, I want to stay home, I want to raise the cattle, and I want to be on this property, I want to be home—and he said, no, Tini [phonetic], you have to take it because eventually you are going to come home and you are going to bring that knowledge back home. Well, I did. I brought that knowledge back home. The irony of this meeting is that I came home. I retired from a company, I came home and opened a medical clinic, a primary care. I didn't have to, but I took any monies that I had, and I did. And it was going great. Nahale Family Clinic was my life, it was my gem. To give back. Not anything for me. Well, lone behold, a year and a half later,just recently, the doctors that I had that were coming—I already had providers, I had Amaze, we had patients, family patients, all these people that live here that cannot get care were coming because we wanted them, we love them, we were going to take care of them. Well, 7 EXHIBIT D the doctors bailed. Do you know why? They couldn't find homes to live in. They could not find affordable rent, they couldn't bring their families to live here. They bailed and pulled their money out of my clinic. And here I am, fighting to go home, so I will have a place to live, that my children have a place to live. What's the irony in that? It's crazy, right, that I have to go through this just to go home. And the same people that could have helped us grow the infrastructure of medical care couldn't even come to live, because they can't afford it, there is no place for them to live. Shame, huh? Anyway, but when I came back home and started realizing I've got to bring my mom home and take care of these things. I had to clean the property up. I had 30 dumpsters of trash left by vagrants and people that were just, they were living on our, squatters, and then by family members who did not care as much as we did about the `aina. I hauled off 15 cars that people are driven down that Kuakini Road and just Iet it rip al the way down through the five acres; I had to haul those off. I actually added by permit through the Planning Department a safer road off of Pomaika`i because it wasn't safe anymore to come off of Kuakini Highway. It's very dangerous and treacherous. And on a more personal note, we have been working to restore the property to its origin, honoring my, the pa ilina that's there, with my grandmother, Jeannie Nahale, and her husband, my grandpa, and my uncle. I've also been trying to restore the flora and the fauna that was once there that was deteriorated because of the misuse of the property and not being cared for. And more importantly, I've spent time teaching the next generations how important that is, what things are you know, the pueo is my `aumakua. We grew things on that property to make sure that they have a place to live, too. Right? We are caring for the land. And I am teaching those next generations the significance of the property and its importance. So, we the family you see behind me and those that you can't see hope that you will make the right decision for our family, so we can go home, so we can be a part of the community once again. Mahalo for what you are doing, for sitting here enduring so much. I'm so sorry you have to go through so much just to help people, but I appreciate you taking on this responsibility. Aloha no. VITOUSEK: At this time, is there any further public testimony? HATA: Yes, we have two registered testifiers on Zoom. The first— VITOUSEK: Okay, well, I'll just ask a couple of questions before we get into the public testimony. HATA: Okay, got it. VITOUSEK: Just I hope that it might inform the public testimony [sic]. Ms. Clement, would you give us just a little more background on how your family came to be the owners of this property? From the records, it indicates that you are the descendants of the original Mahele awardee? CLEMENT: Right. VITOUSEK: Is that correct? 8 EXHIBIT D CLEMENT: Right, mm-hmm. VITOUSEK: So, your family, this is the land that your family has been on prior to 1848 but during the Mahele, that was memorialized in the awarding this property to your family by King Kamehameha III. CLEMENT: Right. VITOUSEK: Okay. CLEMENT: Yes. VITOUSEK: Mahalo. And have lived on it ever since. CLEMENT: Yeah, ever since, you know, from the top of, of course, it's ahupua`a, and of course, through the years things changed and sold and VITOUSEK: Of course. CLEMENT: But our family has been on that land for hundreds of years. VITOUSEK: And so, as the family has been awarded this in 1848, it is natural that the ownership interest would be spread out over time where multiple members of your family have a partial interest in the property, correct? CLEMENT: Right, and so, Joseph Nahale, he willed it, he gave it to his three sons, William, Charles, and David, and then my grandmother was the oldest child for Charles Nahale, and then, of course, it went to my mother who then sold me her interest. My mother is 86 years old, and she is the oldest living Nahale right now. VITOUSEK: Wow. CLEMENT: And this is the reason I came. She said I want to go home, I want to die here, I want to go back. And I've tried. I'm trying. VITOUSEK: And so, the decision to seek partition, meaning to split the land up between family members. CLEMENT: So, the biggest issue is that other family members that had ownership in the property had huge tax liens from the IRS and from the State, and so there was a lien put on the property, making it very difficult to—in a Mahele or a partition, that lien can move to that person's share so that the rest of us can actually build and go home. We can't, we can't do anything with the lien on it. 9 EXHIBIT D VITOUSEK: Mahalo. And then for Ms. Nakoa, as the partition commissioner, would you give us a little background on the alternatives here with the partition? And in the document that we received indicates two options, partition in kind versus partition by sale. And could you discuss a little bit about what that means? NAKOA: Yes, so the judge has followed the case law that partition in kind among the landowners is preferrable to partition by sale. VITOUSEK: Just to add, partition in kind meaning splitting up the property itself amongst the owners, correct? NAKOA: Exactly, Mr. Chair. VITOUSEK: Mahalo. Yeah, and the alternative,partition by sale, would you explain that a little bit? NAKOA: Yes, so, partition by sale is that it would basically go, it would be like an auction, and to the highest bidder much like a foreclosure auction. So, it would go very likely to persons outside of the family. And, again, there is an entire body of case law where partition, with those family members where, those landowners, there is a strong preference for what we are attempting to do here, partition in kind. So, that would be the other option is partition by sale. VITOUSEK: So, partition in kind in this case allows for the original descendants of the ahupua`a to keep their land. NAKOA: Exactly. VITOUSEK: On contrary, if this application is opposed and is eliminated, then we are forcing a sale of land that's been owned by a Hawaiian family for centuries, against their will. NAKOA: That's exactly right. VITOUSEK: Mahalo. NAKOA: Mahalo. VITOUSEK: Now, at this time I'd like to offer for public testimony, for anybody who would like to testify on the matter. [Female voice on Zoom]: I want to testify. VITOUSEK: Please. I don't, I can't see who it is on Zoom. MCMICHAEL: Simmy VITOUSEK: Aloha, Simmy. 10 EXHIBIT D MCMICHAEL: Simmy McMichael. Hi. VITOUSEK: And then how many Zoom testifiers are there for this item? MCMICHAEL: If someone is asking to go first, that's fine. I'll go last— VITOUSEK: No, no worries, I'm just trying to figure out so we can swear everybody in together, and thenI just can't see anybody. Can we pull it up so we can see all the Zoom testifiers, please? HATA: Yes, we have two testifiers on Zoom right now. Simmy, would you turn on your video? Is it possible for you to turn on your video? MCMICHAEL: No, I haven't, doesn't work, it's an old, old computer, but I've got the voice here. HATA: Okay, that's fine. MCMICHAEL: Yes, I swear to tell the truth. MATLOCK: I'm also, Janet Matlock, I so affirm. VITOUSEK: Aloha, okay, so we'll have, both the Zoom testifiers, please raise your right hand. Do you swear or affirm to tell the truth on the matter before the Planning Commission? MCMICHAEL: Yes. MATLOCK: Yes. VITOUSEK: Mahalo. We'll start with—is that Janet? Janet, would you please state your name, the town you live in, and please proceed with your testimony. You've got three minutes. MATLOCK: Thank you. My name is Janet Matlock, and I live in Kailua-Kona. Aloha, members of the Leeward Planning Commission [sound quality muffled] DEFRANCO: Can't hear. KNOWLES: It's very difficult to hear her, sorry. VITOUSEK: Yeah, we can't hear you so well. MATLOCK: Okay, what do I need to do? VITOUSEK: Not too sure. MATLOCK: What do I need to do to make it 11 EXHIBIT D VITOUSEK: Maybe put your microphone right in front of your face, that might help. MATLOCK: Does that help? VITOUSEK: A little. MATLOCK: Okay, I'm sorry for that. I don't know why this is not working. Can you hear me now? VITOUSEK: Yeah, okay, go ahead. MATLOCK: Okay? All right, I'm sorry for this. I want to thank you for this opportunity to speak with you today on this proposed rezoning. I mean that most sincerely as you are volunteering [inaudible]most times thankless job, and so I do want to mahalo you for your work. And I want to mention after hearing all of this that it's not so much objecting, it's not objecting to a family trying to live on their land; it's objecting to the way, quite frankly, it's been done. And I put this more, I guess, on Land Planning Hawai`i's approach of how they filled out their application forms, how they submitted old, old paperwork, how they really in checking boxes didn't tell any of the story; they just simply make it look like we are going to set precedent for how to do things other ways. So, it's, it's not about this particular family; it's about how it's been approached. For example, the signage that is supposedly off of Kuakini Highway, I guess, I've driven by it, you cannot see it. It's not off of Pomaika`i, which is where the entrance is going to be. Mr. Pipan, there is no conspiracy to come into the last minute; neighbors responded as soon as we could after we got the application forms from the Planning Department when they were posted. So, I'm sorry if it sounds like it's, you know, some nefarious game. It's not, it's just that it takes a long time to read through these things and then go through them point by point. My prepared testimony is this. I am sure that you are all familiar with the parable of the blind men describing an elephant— VITOUSEK: Thirty seconds to summarize. MATLOCK: where one touches the trunk, another the side, another the leg, etcetera, and then they have a fight, you know, it's like a tree, it's like a rope, and finally, in the telling by the peak score a wise man convinces them that they each only have a small piece of information, and they realize to learn the truth we must put all these parts together. And the same is true for the island. It sounds like this family does have great information. So, the cultural landscape, we need to know what's gone before us, and the more we slice and divide the landscape without first seeking out VITOUSEK: Mahalo, we'll ask you to summarize. That's three minutes. MATLOCK: Okay, what I want to summarize is that we need to take a look at this entire ahupua`a in its entirety and not consider continue to slice it and dice it without really understanding what's on the land. This goes all the way down to the Great Wall of Kuakini. So, 12 EXHIBIT D that's, that's really what we are, we are going for. I'm sorry this took a turn the way I didn't intend it. And Mr. Pipan VITOUSEK: We'll ask you to complete your testimony. Mahalo MATLOCK: Okay, thank you so much. VITOUSEK: appreciate it. Aloha. MATLOCK: Aloha. VITOUSEK: Next is Simmy McMichael. Available? MCMICHAEL: I'm going to testify on number 2 and also on the Planning Director's SMA process VITOUSEK: At this time all you can testify on is number 2, and then once the Planning Director's discussion, you can testify at that time. MCMICHAEL: Okay, I'll try to sum it up. Okay. Aloha, Commissioners, my name is Simmy McMichael. I'm kanaka maoli of Hawaii, born in the Territory of Hawaii. I have land connected to this lots of Kahalu`u for 40 years. I oppose the number 2, and I don't want to step on anybody's toes, but what's happening now? The Family Ag is great, but there's no rules to say it cannot be sold off individually once it's done, and hewa is if it's sold to an outsider who doesn't care about preserving our sacred sites. This land was originally subdivided numerous times from 3,017 acres on the EPIC records. Adjacent is Lot number 113 of 11,271 acres and the other Lot of 105 and it's 14 acres; this was all part of this particular lot. The owners of Seascape Venture is of a real estate management from Arizona. He purchased these lots in 221 [sic], each for one-four-six-oh [phonetic] million dollars. And at this time any changes, grubbing, grading, archaeology environmental studies all required were brought to you, the Leeward Planning Commission. And the neighbors will be notified. Right now, all the surveys, archaeology studies, any burial treatment plans, HRS 3435, should be completed prior to any subdividing and not after the fact. Once it's gone to 1-acre, it's hewa with the current rules example, the neighbor of Kahalu`u number 19, I will get to that. But the lot also, when it goes to 1-acre, it's, it's allowed the 7,500-square foot, and this is concern, Rule number 9, at the Leeward Planning hearing. And I testified three of, with attorneys that were on, against it, yet it passed. So, I can get into that later. But when it gets to 1-acre, it's out of control. And as of Lot number 19, I get sworn down the street on Ali`i Drive when try to pry in why it's not being done correct. I literally got said, "Get the F off my land," screaming at the top of his lungs at me. And when it goes to all this 1-acre, what is it going to prohibit Seascape from asking for the 1-acre? And then it's a can of worms. Okay, I'll cut it there. Mahalo. 13 EXHIBIT D VITOUSEK: Mahalo. And with that, we will conclude public testimony. Okay, at this time we can open it up to Commissioners for questions of the applicant or of the Planning Department. Are there any questions? KNOWLES: Thank you so much for your testimony and your application. I just wanted to air out what seemed like a point of disagreement or contention around the Kuakini access piece. And I'd just like to give you, Mr. Pipan, a chance to address that. PIPAN: Yes, thank you for your question, Commissioner Knowles. Initially, our plans were to just access from Pomaika`i, you know. There is an existing drive off Kuakini; it's not the best access, but giving it up wasn't seen as really beneficial to anyone at that time. So, that's why we argued to maintain access for one lot if necessary. We are fine. It's not a great access; it's a dangerous access. We are fine giving up that access to Kuakini, no problems there. And perhaps, Ms. Clement knows a little bit more, [to Ms. Clement] if you'd like to add anything to that. CLEMENT: Easement is on the side, it's on the opposite side of that driveway, yeah. Growing up, that was the only way, you know, and then, of course, coming home year after year, became more and more dangerous. So, we are, we are okay with that. We don't, to keep everybody safe, eventually, we'd like to use the Pomaika`i as the main access. We have to go through this process first. VITOUSEK: Mahalo. DEFRANCO: Mike, I have a question sort of about that— VITOUSEK: Sure. DEFRANCO: —and, you know, because it's a tsunami zone, isn't it possible to keep some access in case there is a tsunami or something, to get people out of those- I mean, we don't have a lot of CLEMENT: Can I DEFRANCO: Yeah. CLEMENT: So, I think back when the road because, you know, I'm old, I can talk about these things—when the road went in initially, there was no La`aloa, there was no access anywhere. Remember there was nothing for miles, yeah? But I do, being the landowner there, I look at it as La`aloa is a great place. That road wouldn't be accessible from the property currently because you have no way to get into it. No one, they would never know there was this little bit of an access road that was there. And it's a little road. DEFRANCO: Yeah. VITOUSEK: Anything further? 14 EXHIBIT D DEFRANCO: Yeah, my question wasLa`aloa, wonderful, glad it's there now, and leaving the Kuakini open, you know, for only accessible if there was a tsunami for the neighborhoods to get— CLEMENT: Yeah, it— DEFRANCO: to get to higher ground. I was asking that question. CLEMENT: It's not—so when we talk about that entrance, the Kuakini access, it is basically just it; once you get off the State road, or the County, sorry, the County road, you better have a four-wheel drive, yeah. DEFRANCO: Thank you. VITOUSEK: Would you explain a little bit about the easement on the north side of the property and who that serves and what would happen with that? CLEMENT: So, backI'm guessing it was in the 80's, the 70's or 80's, probably the 70's the County had put in, had created a situation where my family couldn't get on the property. And so, at that time my uncle Cyrus who lived on the property had to go before a commissioner, a commission, and basically said how do I get on my land? How do I get home? There's no other access road. So, they gave us the easement on that side of the property, a bulldozer length, right, shovel length, so that we could actually use and get on the property. It serves no, no beneficial reason today because you shouldn't be accessing it from Kuakini, and eventually, that'll be taken care of later. DEFRANCO: So, on the map, when you are looking at the map, it looks like there's a very thin piece that goes down. What is that? CLEMENT: So, you've got, it's a little strange cutout on the very top. There's actually three, two little slivers. Some of it belongs to Steve Birchfield who someone talked about just recently. Then there is another sliver that we don't understand; it was a previous, previous, previous owner of that portion. And then, that, that, actually driveway, I call it a driveway, Steve and I both were using it, our family. He used it to access his property, and then, of course, it was the only way in back then. It is weird, I agree. VITOUSEK: Okay. Commissioners, any more questions? If not, we can seek a motion, and we can have discussion after that. What's that? [Commissioners yielding to one another]Any one can do it. KNOWLES: Okay. I move that a favorable recommendation be forwarded to the County Council on the application for a Change of Zone, Docket number REZ-2022-017, based on the Deputy Planning Director's recommendation, which shall be adopted. KANUHA: Second. 15 EXHIBIT D VITOUSEK: Mahalo. Motion by Commissioner Knowles, second by Commissioner Kanuha. Any discussion? I just want to say that I will be supporting the motion. This has been one of the most interesting applications that I've ever seen. I've been on the Planning Commission now for four years and before that worked for the State Historic Preservation Division for five years, and this is the first time that I've actually been embarrassed and disappointed by the community's reaction to a project. The fact that this land has been in your family for hundreds of years, we should be bending over backwards to do whatever we can to make sure that it would be in your family for another hundreds of years. And I'm sorry that you had to go through with that. I personally believe that a lot of it was a misunderstanding of what was happening. I believe that people saw rezoning and automatically assumed they knew what was happening without knowing you, without knowing the property, without knowing the history. Because what you are doing here is beautiful. This is what our community needs is to rally around the long-standing Hawaiian families to keep them on their land. Mahalo. Thank you for your graciousness throughout this process. I know how difficult it must have been for you to hear those things being thrown around. Mahalo. KNOWLES: And I'd like to thank you, Chair, for giving the family an opportunity to talk about what it means to be a lineal descendant and to talk about the Mahele and to talk about what the true use of the land has been historically, because I do think that as a community, we need to be more curious. VITOUSEK: Mahalo. DEFRANCO: And, Michael, thank you, and to point out also that, to the community at large, that these things just don't go through, they are not just rubberstamped. That's exactly why we have a commission so we can look at each thing individually and make a decision. That's not setting precedence; it's making it right for the community. KANUHA: Thank you, Barbara. That's one thing that the community, I think as a whole, needs to realize, you know, it's on a case-by-case basis, and especially, putting local families and `ohana-s that have been here for hundreds of years occupying that ahupua`a that's been theirs, and still want to be there, compared to a developer coming in to subdivide to build an RS-7,500 or, you know, that's, you know what I mean, two separate issues. And, you know, I'm proud of your `ohana for coming in. It's a hard thing to deal with. As Mike said, too, I was kind of appalled on everybody and how many testifiers came in, not doing their research on actually what was going on and how this process has been and why you guys are here in order-just taking care of it through the `ohana, you just have to do it, court-appointed, and you know, that's, I would say, moving forward is the hardest thing. But, you know, maybe also on us, putting out some other information, you know, rather than just that standard protocol,just to say, you know, this is what's there, maybe why the reason the family is here today to ask for that subdivision of, you know, that five-acre parcel, or something like that, I think, may be, moving forward, would be great to see. But I'm proud of your `ohana, and I wish you only the best. VITOUSEK: Mahalo. 16 EXHIBIT D CLEMENT: Can I just say something else? VITOUSEK: Yes, of course. CLEMENT: Through this process, this isn't, this didn't just happen yesterday, you know, we've been working collectively to take care of this `aina for 10, 15 years, you know, and the cost that's associated you know, I was very blessed in my previous career to have some money saved, so I could start the processI had no idea, hundreds of thousands of dollars. What kama`aina family can no wonder we are losing them, no wonder they are not staying. Because if they have to go through what I went through, they can't do it. And we've, we've I'm sorry to use this word but we bastardized the process to the degree that we want Hawaiian people to leave, that we don't afford them the opportunity to go home because of the, because of all the steps, right, because of all the nonsensical things that we have to do. You know, I love SHPD, I know why they are there, but nobody knows that land better than me, nobody. I watch my family go in there, I was there when they spread their ashes, I was there. And most Hawaiian families can say that; they can attest that to you. I was there. And all they want is to go home. So, if you change anything, I hope that this is a broad awakening of—most people give up, and then you find their properties in litigation because no owner, they can't pay the taxes. I stepped in and paid the taxes that was due, a lot of money, but I want to go home and that's why I did it, I could. But there's a lot of families that cannot. VITOUSEK: I agree. I believe that this is case in point of why Hawaiian people have been displaced from their land. And I, it is a shame that the cost associated with doing this, having to hire a land planner, having to do all of these docu-these things are unfortunate. And thank you for taking that step to do this in that way. If it does set a precedent, I hope that the precedent is that projects like this will be given special attention from the Planning Department to make sure that the costs are kept low, that they are allowed to move this forward, keep their land, keep their land. NAKOA: Mr. Chair, I just wanted to say both as a court commissioner and individually as a native Hawaiian woman myself, wow, I feel really good about my local government today and all the heart that sings from all the aloha. Thank you. VITOUSEK: Mahalo, mahalo. And just on the specifics of it, question for the Planning Department, the administrative time extension, I would hope that that will be included in this. DARROW: It is. VITOUSEK: It is? Terrific. Because I think that giving this family every opportunity to be successful in keeping their land is what we are hoping for, and I believe that's the intention of having an administrative time extension is to serve our community like this. Mahalo. DARROW: If I could just—my name is Jeff Darrow, Deputy Planning Director. We feel the same way about this application. And from the beginning there has been some hurdles, but we've been able to work through them. The one that we had a tough time was the AIS, but we were able 17 EXHIBIT D to work through that so that all the costs weren't placed on one person. So I'm really happy about the outcome today. VITOUSEK: Mahalo. I agree that there could be no better stewards for the historic sites of the property than the folks who are the direct descendants of the people who created those historic sites. So, not just preserving that history but allowing it to live. Is there, anybody would like to make a—we've made a motion, we've got a second, let's do with a roll call vote. ANDREWS: Yes, thank you, Chair. Starting withactually, I have a question if you don't mind. VITOUSEK: Yes. ANDREWS: I wanted to just verify that Commissioner Paishon-Duarte is recused. Do I have that correct? VITOUSEK: Correct, she is recused as a relative. ANDREWS: Thank you. VITOUSEK: Yep. ANDREWS: Okay, thank you. So, doing the roll call here. Commissioner Knowles? KNOWLES: Aye. ANDREWS: Commissioner Kanuha? KANUHA: Aye. ANDREWS: Commissioner DeFranco? DEFRANCO: Aye. ANDREWS: Commissioner Dela Cruz? DELA CRUZ: Aye. ANDREWS: And Chair Vitousek? VITOUSEK: Aye. ANDREWS: Thank you. The motion passes with five ayes. VITOUSEK: Mahalo. Mahalo for your time. CLEMENT: Thank you so much. 18 EXHIBIT D VITOUSEK: Good luck with the County Council. I'm happy to attend this one, if you would like, and share my perspective. Mahalo. The hearing ended at 12:06 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 19 EXHIBIT D