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HomeMy WebLinkAbout2022-11-17 Leeward Exh C (Item 1 Sunshine Holdings PL-REZ-2022-000032) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT NOVEMBER 17, 2022 A regularly advertised hearing on the application of SUNSHINE HOLDINGS, LLC (PL-REZ- 2022-000032) was called to order at 10:14 a.m. in the West Hawaii Civic Center, Community Center, Building G, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Barbara DeFranco, Michael Dela Cruz, Zaheva Knowles, and Mahina Paishon-Duarte RECUSED: Clement"CJ" Kanuha III ALSO PRESENT: Keyra Wong, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Zendo Kern (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) And seven public members in the audience. APPLICANT: SUNSHINE HOLDINGS, LLC (PL-REZ-2022-000032) Application for a five (5)-year time extension to Condition D (Final Subdivision Approval), Amend Condition E(Restrictive Covenants) and Condition F (Restrictive Covenants) to prohibit condominium property regimes (CPR) and to delete the requirement to provide a copy of the recorded covenant prior to receipt of final subdivision approval, deletion of Condition G (Requirement of Conservation Plans to be Filed with the Kona Soil and Water Conservation District), amendment to Condition I(Drainage Study), addition of a condition requiring compliance with Chapter 10 of the Hawaii County Code (Erosion and Sedimentation Control), deletion of Condition J(Archaeological Survey), and amendment to Condition M (Fair Share Requirements) of Ordinance No. 98 91, which reclassified 21.353 acres of land from an Agricultural 20-acres (A-20a) to an Agricultural 5-acres (A-5a) zoned district. The subject property is located at 73-1735 Kaloko Drive, approximately 720 feet southeast of its intersection with Kaloko Loa Place, Kaloko Mauka Subdivision, Kaloko, North Kona, Hawaii, TMK: (3) 7-3-025:012. VITOUSEK: We'll resume the Leeward Planning Commission meeting, with Unfinished Business, Item number 1, applicant is Sunshine Holdings, LLC—I'll read the whole thing, and then you can PL-REZ-2022-000032, application for a five-year time extension to Condition D, Final Subdivision Approval, Amend Condition E, Restrictive Covenants, and Condition F, Restrictive Covenants, to prohibit condominium property regimes and to delete the requirement to provide a copy of the recorded covenant prior to the receipt of final subdivision approval, deletion of Condition G, Requirement of Conservation Plans to be Filed with the Kona Soil and Water Conservation District, amendment to Condition I, Drainage Study, addition of a condition 1 EXHIBIT C requiring compliance with Chapter 10 of the Hawaii County Code, Erosion and Sedimentation Control, deletion of Condition J, Archaeological Survey, and amendment to Condition M, Fair Share Requirements, of Ordinance No. 98 91, which reclassified 21.353 acres of land from an Agricultural 20-acre district to an Agricultural 5-acre zoned district. The subject property is located at 73-1735 Kaloko Drive, approximately 720 feet southeast of its intersection with Kaloko Loa Place, Kaloko Mauka Subdivision, Kaloko Ahupua`a, North Kona Moku, Hawaii Island, TMK (3) 7-3-025: parcel 012. Commissioner Kanuha will make a statement. KANUHA: I want to recuse myself from this agenda item just for any conflict of interest since it abuts up to my property. VITOUSEK: Mahalo. Staff, we have Jessica Andrews. Would you please proceed with the PowerPoint? There you are. ANDREWS: Yes, thank you. Good morning, aloha, and good morning, Chair and members of the Leeward Planning Commission. Can everybody hear me okay? VITOUSEK: Yes. ANDREWS: Great. The applicant before you today is Sunshine Holdings, LLC, and this is an amendment to Change of Zone Ordinance 98 91. I'm just going to take a moment to share my screen—give me a second here. Okay, the subject property is shown here outlined in red. It's located in the Kaloko Mauka Subdivision on Kaloko Drive at approximately the 2,500-foot elevation within the North Kona District. The applicant's request. A five-year time extension to Condition D, Final Subdivision Approval, with the possibility of an administrative time extension. Also requested was an amendment to Condition E, Restrictive Covenants, to delete the requirement to provide a copy of the recorded covenant prior to receipt of final subdivision approval, and Condition F, Restrictive Covenants, to prohibit the allowance of condominium property regimes, CPR, and to delete the requirement to provide a copy of the recorded covenant prior to receipt of final subdivision approval. The applicant also requested the deletion of Condition G, which required restrictive covenants in the deeds of all proposed lots to require individual owners to file a conservation plan with the Kona Soil and Water Conservation District, and an amendment to Condition I, which was a drainage study condition, to add the standard requirement that all development-generated runoff be disposed of on site and not be directed toward any adjacent property. The applicant also requested the addition of a new standard condition requiring compliance with Chapter 10 of the Hawaii County Code, which is Erosion and Sedimentation Control, and the deletion of Condition J, Archaeological Survey, due to the State Historic Preservation Division's prior determination that no historic properties would be affected by the proposed four-lot subdivision, and an amendment to Condition M, the fair share requirements, to clarify that the fair share requirement shall only apply to any additional lots created and to update the required fair share amounts to current rates. 2 EXHIBIT C This map shows the County zoning at the subject property and the surrounding area. The subject property is zoned Agricultural 5-acre, A-5a, shown in the light green as are surrounding properties, and other surrounding properties are zoned A-3a, A-20a, A-7a, A-10a, and also down on the lower left side of the screen, there is FA, which is Family Agricultural 5-acre. And as you can see, the entire area is designated Agricultural by the State Land Use designation. And the General Plan Land Use Pattern Allocation Guide designates the entire area as Important Agricultural Lands. The applicant's site plan is shown here, and this is a preliminary map showing the subdivision, the proposed subdivision, into four parcels. You can see the access point is located on the lower right off of Kaloko Drive. An aerial photograph here shows the subject property outlined in red. It's currently undeveloped and vegetated. And this is a view of the subject property. As you can see there, it's vegetated with various trees and vegetation. This is a view from Kaloko Drive. And two views here on Kaloko Drive, looking in the mauka direction on the left and in the makai direction on the right. These images are taken approximately at the location of the proposed access drive. And finally, the Director's recommendation is to forward a favorable recommendation to the County Council; however, I did want to mention that the first request regarding the administrative time extension, the Director does not recommend including an administrative time extension in this favorable recommendation. And with that, I will hand it back to the Chair. VITOUSEK: Mahalo. Would the applicant or the representative please come forward? Mahalo. Would you please raise your right hand? FUKE: Sure. Good morning. VITOUSEK: Do you swear or affirm to tell the truth on the matter before the Planning Commission? FUKE: I do, yes, mahalo. VITOUSEK: Please state your name and the town you live in. FUKE: Good morning, Mr. Chairman, members of the Commission. My name Sidney Fuke. I'm a planning consultant. I live on the east side, Hilo. I'd also like to acknowledge the presence of 3 EXHIBIT C the applicant who is participating via Zoom, if there are questions that the Commissioners may have that I can't respond to. VITOUSEK: Okay. Have you received the background recommendations from the Planning Department, and do you agree with the recommendations, including the conditions? FUKE: Yes, I've had a chance to review the staff's background report and the recommendation with the applicant. He is in total agreement with that. As Jessica, your staff, had mentioned, there is, the original request was to seek also an administrative time extension, which has been nixed, and the applicant is totally receptive to that because his goal is to get in and out as soon as possible, so it's not a problem. VITOUSEK: Mahalo. Is there anything that you would add to the staff's presentation? FUKE: Yeah, pretty much, you know, after kind of like reading some of the public testimony and also like hearing this morning's public testimony, I was kind of like reflecting, and, you know, it struck me that I think like the public hearing process, the public testimony are very, very valuable because it can be very educational for both sides, you know, for us the applicant, the developer, the Commission; you can become a little bit more sensitized of what the issues are out there, and at the same time it gives us an opportunity to possibly correct some of the misinformation that's out there. And I think this was kind of plainly evident in this morning's testimony. So along those lines but at the end of the day, it's really going to be up to the Commission, and ultimately, the decision-making on this or the other application which rests with the County Council, so we hope that, you know, you would be able to take that arduous task of being able to distill the so-called all of the facts and then arrive at your own independent decision. Having said that, the staff's background report is comprehensive, so what I'd like to do is pretty much like share some of the information, which had been kind of floating around, and kind of like correct it. And one of them, you know, related to the condition, the deletion of Condition J relating to archaeological study, I mean, sure, on the face of it, it looks like almost egregious, but the reason why, you know, that was done was because SHPD had already made the conclusion that that requirement had been fulfilled. So even if you retain that condition, then it became like a superfluous obligation; however, notwithstanding that deletion, you know, a new condition was added, which was Condition K, which essentially requires that in the event that there is any inadvertent finds, that, you know, activity must stop and, you know, you must go through the appropriate protocols to address that. There was also some concern relating to, you know, the cultural aspect; one of the persons said this new owner and—maybe I should just kind of back up. As far as who the applicant is, they just bought the property out of foreclosure. And so, apparently, like the previous landowner was trying to do the subdivision and apparently couldn't, so, you know, he, the new owner, actually bought the property through foreclosure. I think that—so, really like the delay was not so much the result of the current applicant's fault as much as it was the previous applicant—but notwithstanding that, I think that maybe if he had done his due diligence in the beginning, he would have probably asked the former owner to make sure he got a time extension before you put this property in so-called the zoning limbo, which currently is right now; you don't know whether 4 EXHIBIT C you have the current Ag-20a zone or the Ag-5a zone. It's, you can't move, so one way or the other, something has to happen. But at any rate, you know, so, there was a comment made that the landowner, because, you know, newcomer, so he can't really attest to the fact that, you know, the site has not been visited by native Hawaiians for collection, you know, collecting of native plants or activities on, you know, doing native things on the property. So, that's true, I would like to point out, however, that there is a requirement that you will notice like in the forest management plan—and we just received a comment on another application for one that I just did, Clinton Hinchcliff's application, which required like a forest management plan, and Forestry actually had, in reviewing a draft management plan, suggested that there be a more comprehensive evaluation of what is found on the property and so that you can make that distinction between what should or should not be preserved and all incorporated in the management plan. And I suspect that since that's the obligation that Hinchcliff's property has to go through, this is kind of right across, essentially right across the street, they are going to have to do that as well. So, I think that from that standpoint, and if you look at Condition M relating to the protection of any listed or endangered species, I mean, you know, that kind of issue pretty much can be addressed. And I think that there is also some misunderstanding regarding the deletion of the requirement to have a conservation plan submitted for the review and approval of the Kona Soil and Water Conservation District. That used to be the option in lieu of getting a grading permit. So, there is no escape in terms of trying to address all those things that the Kona Water and Soil [sic] Conservation District would do, because you have these conditions that require full compliance with the Sedimentation Act by the County. And then finally, I think there is also a misunderstanding regarding double density. So, it's kind of clear that, if you look at the proposed language of the condition, only one house in each dwelling, no additional dwelling, no condominiumizing, and so that's clear; that's clearly articulated in Condition F. Finally, in terms of the decrease in the fair share, there is no decrease in the fair share. All it did was essentially say that all of money is, as opposed to being distributed to Fire, Police, Parks, and Solid Waste, it essentially would be all accumulated together. Like with the Hinchcliff application you guys recently considered, it would be all accumulated and put in the pot to specifically address the road intersection issue at Kaloko Drive. So, that's the only change. So, having said that, I think that, hopefully, with that information, that it provides some clarity to the Commission and to those who have made some comments on the requests. Thank you. VITOUSEK: Mahalo. Commissioners, are there any questions for staff or foractually, you know what, let's keep going with public testimony, and then we can take questions after that. Mahalo. Mr. Van Pernis? Do you swear or affirm to tell the truth on the matter before the Planning Commission? VAN PERNIS: Yes, I do. 5 EXHIBIT C VITOUSEK: Mahalo. Please state your name and the town you live in. VAN PERNIS: Mark Van Pernis. Makalei Estates, Kailua-Kona. VITOUSEK: Okay, yeah,please proceed with your testimony. Mahalo. VAN PERNIS: I was late today because I got hung up in the traffic at the Kaloko intersection up on Mamalahoa. Now, of course, today's traffic backup was excessive because of the tree trimming, but the bad traffic is there all the time during working hours not just during tree trimming. There is no reason, no reason at all, why this application can't be rejected, the zoning remain, and a new subdivision applied for, with the modern impositions available. Mr. Fuke seeks to extend for now 30 years the approval of 30 years ago, which in essence traffic improvements and other conditions without consideration for modern needs. When I was on the Planning Commission, I went to every single application's property, saw what impact it had on the public on West Hawaii. I wasn't a bit interested in making money for the developer; I was interested in representing the public. That's what you should do, represent the public. Turn this application down and let them reapply 30 years later. One other thing. I'm allowed three minutes. All these other people are allowed three minutes. The developer is allowed, and their representatives are allowed, my time doesn't allow they can pretend as witnesses—we have no opportunity to keep them honest, to cross-examine, and to rebut. This invites misrepresentation from the developer, or less than complete and fair representation, and makes you folks susceptible to misrepresentation or less than full representation. Whose side are you on? The developer or the public's? Turn this application down, have them reapply, and get all impositions. They need a traffic study even now. That may not be technically required under the law. There's many, many subdivisions that have been approved in this area, including Mr. Kern's client where there is no opposition VITOUSEK: Mahalo, I want you to summarize. VAN PERNIS: And I'll wrap up by saying he, when caught with that conflict of interest, withdrew but had his loyal staff approve the subdivision a second time. Thank you. VITOUSEK: Mahalo. I have a question for you. In the testimony today and in the written testimony, you indicate that the property should keep its zoning. VAN PERNIS: I know of no instance in the history of this Planning Commission where the zoning was, that was granted, was changed back to Ag, or changed to a less intensive zoning. So, I don't see why we should do in this case, too; the property can be subdivided Ag-I subdivision but then needs to have modern contemporary conditions imposed. VIOTUSEK: So, you are okay with maintainingso, this is Ag-5 from Ag-20 but you'll be okay with keeping the Ag-5 zoning but updating the conditions to reflect the current- 6 EXHIBIT C VAN PERNIS: I VITOUSEK: environment. VAN PERNIS: If they want to subdivide it Ag-I or Ag-5, that's fine as long as modern current decisions are encouraged. VITOUSEK: Mahalo, thank you, appreciate the testimony. VAN PERNIS: Are there any other questions? VITOUSEK: [Seeing there are no questions] All set, thank you. Okay, Commissioners, are there any questions for staff or for the applicant? Commissioner Knowles. KNOWLES: Mr. Chair, I did have a question. I, too, was concerned with the delay and sort of the reintroduction of this "stale" application basically, and just wanted to know, Mr. Fuke, why you felt that that was the better course as opposed to just submitting a renewed application on behalf of the applicant. FUKE: Yeah, I think, like, in years past when a person requested for simple not simple, no longer simple, but—requested for a time extension, usually it was kind of like, you know, like a one or two-page kind of statement, and the Commission or the department's focus was largely on why you couldn't perform within the X period of time. However, over time, the thought process has kind of morphed in the sense that not only the Commission but the County Council, and as well as the staff, now wants to use the time extension as an opportunity to refresh all those conditions to see whether they are pertinent or not. And so, as a result, from my standpoint anyway, all of the time extension request that I prepared and processed through the Commission, have been predicated upon like they are brand-new application. So, if you are to look at the report that I had prepared, it was not like only two pages; it was like trying to address each and every other issue, and while at the same time trying to justify why certain amendments that are being requested. KNOWLES: Thank you. And I just have one VITOUSEK: Actually, Director Kern will follow up on that question also. KERN: Thank you, Mr. Chair. I just want to, yeah, follow up on that, basically confirm what Mr. Fuke said. So, when we receive a request for a time extension or an amendment, we do a top-to-bottom review of the application just as if it were new, and we look at all the impacts. That's why you'll see in certain cases updated conditions. So, this actually reflects the conditions that would be on a brand-new fresh application. So, in a way, it's semantics whether or not it's a time extension request or a new request, because we do the top-to-bottom review on it. We don't look at it, oh, that was 30 years ago, so let everything go; it's like, no, it's current today, and here's the conditions that exist, here's the new laws that are in place, here's the new, you know, circumstances that may exist, so this is very current and very fresh. 7 EXHIBIT C KNOWLES: So VITOUSEK: Please proceed, yes. KNOWLES: Given that process, what in your mind is the procedural implication of the withdrawal of the approval? Am I clear on that? So, the Planning Department, given the lapse in the previous developer's efforts, withdrew the permissions and—for the subdivision, right? What—am I making sense? KERN: So, are you referring to the zone KNOWLES: I'm just wondering what the procedural implication in your mind is. Once that's withdrawn, because in my mind, then it's withdrawn, and so then a new, a wholly new process has to occur even if it's in name, as well as sort of procedure. KERN: I guess kind of clarify withdrawn or expired. KNOWLES: I was going to use VITOUSEK: I believe KNOWLES: the word was "withdrawn" VITOUSEK: I believe what Commissioner Knowles is referring to is the subdivision KNOWLES: Yeah, sorry. VITOUSEK: as opposed to the zoning ordinance. KNOWLES: Yeah. VITOUSEK: And so, the subdivision application was removed from being processed by the County because the zoning ordinance had lapsed. KNOWLES: Right. Thank you, Michael. KERN: And therefore, so, what we had is a zoning limbo; they can't subdivide it. And it's zoned Ag-5, you can't use it as Ag-5, you can't use it as the original zoning Ag-20. It's basically not usable unless a complete rezone is done whether it's back to Ag-20 or brought fresh to the Ag-5. KNOWLES: Right. KERN: And because it was not current, you can't subdivide it. 8 EXHIBIT C KNOWLES: No, I understand that. I guess when I see the word"withdrawn" due to no response from the previous owner to comply with the conditions of the change of zone ordinance that was done back in the 90's, if I'm correct— KERN: Okay, yes KNOWLES: I'm wondering what is the procedural implication of that withdraw from a sort of Planning process point— KERN: They would have to submit a new subdivision application from scratch. VITOUSEK: So, the subdivision application will be submitted from scratch that's ended, correct? KERN: Correct. VITOUSEK: Okay. KNOWLES: After this rezoning is KERN: If this is approved and brought current, then a new subdivision application KNOWLES: Thank you. KERN: Sorry I wasn't picking that up. VITOUSEK: Okay. FUKE: So just to add to that, Commissioner Knowles, so, you remember like about four or five months before there was a similar application in this area. So, since the Commission had recommended favorably, and the County Council had approved that, then Mr. Hinchcliff just submitted his subdivision application, which he couldn't have, had that time extension or the amendments not been approved. KNOWLES: Because we don't know what the zoning is, got it. FUKE: Right, yes. KNOWLES: I was curious. Thanks. VAN PERNIS [from the audience]: Can I have a chance for rebuttal [inaudible]? VITOUSEK: Not at this time. So, any other questions from yes. PAISHON-DUARTE: Mahalo. I'd like to ask this question to the staff. There is a request to omit Condition J. Can you explain more why your director's recommendation is to go ahead and omit this condition, the SHPD recommendation condition? 9 EXHIBIT C KERN: Essentially, the ANDREWS: I can address that. KERN: Sure, go ahead, Jessica. ANDREWS: Okay, I'll jump in, and then you can add more, Zendo, if you need to. The rationale that was stated in the background is that the State Historic Preservation determined that no historic properties would be affected by the proposed subdivision by a previous letter for this subject property, and that was a letter dated April 2, 2005. And the letter from SHPD indicated that archaeological sites are unlikely on the subject property given the result of an assessment on adjoining property and other investigations of the properties at the similar elevation. And furthermore, SHPD noted that, oh sorry, DPW Engineering noted that approval from SHPD will still be required for specific grubbing and grading activities as a requirement of Hawaii County Code Chapter 10. Additionally, I'll note that we sought comment from SHPD for this subject application, and to this date we don't have a response from SHPD. PAISHON-DUARTE: Thank you, Jessica. The point that you raised regarding the additional review by DPW for grubbing and grading is helpful. Thank you. FUKE: Can I, maybe just to add a little bit on that? VITOUSEK: Yes, please. FUKE: Because, you know, I have some context with the Hinchcliff application, which is kind of like right in the same VITOUSEK: Yep. FUKE: The Hinchcliff application unfortunately did not have a letter from SHPD providing archaeological clearance. So, as a result, there was a requirement that they do like at least an archaeological inventory assessment. So, one was done by Haun & Associates, and essentially, the conclusion was the same as what SHPD had concluded for this property here. PAISHON-DUARTE: May I VITOUSEK: Yes, continue. PAISHON-DUARTE: Mr. Fuke, where is that information recorded? FUKE: On the Hinchcliff property? PAISHON-DUARTE: Yes. FUKE: That was a condition of the Hinchcliff rezoning. 10 EXHIBIT C PAISHON-DUARTE: I see. FUKE: And so subsequent to that, the archaeological report was prepared, sent over to SHPD, then they provided clearance. PAISHON-DUARTE: Thank you. FUKE: And as a result of that, then they were kind of"free to submit the subdivision application." PAISHON-DUARTE: Thank you. KNOWLES: One more question, Mike. VITOUSEK: Sure,please. KNOWLES: I think this is the Planning Director. Can you refresh the Commission's memory onI know we had talked about the plans for the Kaloko-Mamalahoa intersection—if you could just refresh our memories on where that stands right now. KERN: Sure, yeah, thanks for the opportunity, I was hoping that was going to come up or I was going to bring it up. So, we have met with the DPW representative, the Director, Councilmember Holeka Inaba, as well as the State Highways Division engineer. The—we've had multiple meetings—since the last meeting, they did do a TIAR, Traffic Impact Analysis Report. There is a signal warranted for the intersection, so now we are going to be moving forward with doing a design engineering for that and getting the money to install the intersection. The balance that is in the County account, essentially for the fair share contribution, will be utilized for the planning and design and engineering. Any balance will then be put towards the actual construction of the intersection. So, the County is on board with it, the State is on board with it, HDOT is on board Hawai`i Department of Transportation—is on board with it, so it is moving forward. KNOWLES: Any idea on the timing? KERN: We are having a follow-up meeting, I believe, at the beginning of the year, so, basically, the councilmember and I are having quarterly follow-ups with them, or so. It looks like they are getting into some type of design, engineering at the beginning of the year. VITOUSEK: Mahalo. FUKE: If I can just kind of add to that? And my math is not really accurate, but according to the last calculation that I, you know, was able to assemble, projects in this area have contributed in excess of 800,000 dollars. KNOWLES: Including the Hinchcliff? I know we had 11 EXHIBIT C FUKE: Correct— KNOWLES: Okay. FUKE: Including Hinchcliff's, yeah, and this one here. KNOWLES: Thank you. VITOUSEK: Okay. Commissioners, are there any other questions? [None] Okay, at this time could we have a motion, and we make a motion, and then we can continue to discuss the application after the motion. Please. KNOWLES: I move that a favorable recommendation be forwarded to the County Council on the application for the Change of Zone, Docket number REZ-2022-032, based on the Planning Director's recommendation, which shall be adopted. VITOUSEK: Mahalo. Is there a second? DELA CRUZ: Second. VITOUSEK: Mahalo. Motion by Commissioner Knowles, second by Commissioner Dela Cruz. Discussion? DEFRANCO: So, we never really got to meet the Sunshine people. Are they on Zoom? Are they going to speak to us or—who are they? FUKE: Mr. Christensen is on Zoom, and if you want more specific information about him, his background, so on and so forth, you know, please ask them, yeah. DEFRANCO: Okay, yeah, I'd like to meet them. VITOUSEK: Mr. Christensen, is that it? FUKE: His name is Christensen. DEFRANCO: That's his first name? FUKE: Micha. Micha Christensen. DEFRANCO: Micha Christensen. VITOUSEK: Mr. Christensen, are you available on Zoom? HATA: Mr. Christensen wasn't registered on Zoom. VITOUSEK: Okay, he's not here, okay. 12 EXHIBIT C FUKE: Well, if anything, all I can say is that he spent, you know, he is from the mainland, it's a small limited liability company, LLC. He was planning to be here like the first two meetings, but, you know, we got, one was postponed and the other didn't have a quorum, so I guess in this time, I guess he decided to participate but, you know, he is ghosting us right now, so I'm very sorry. DEFRANCO: So where is he from on the mainland? FUKE: Utah. DEFRANCO: And does he have other developments here in Kona? FUKE: On this island, not to my knowledge. So, if your question is whether he has the capacity and then the gumption to finish up the project, based on my conversation with him, you know, I told him you've got to get out in five years because I'm going to be gone. And in addition to that, like there is not going to be any opportunity for a five-year extension, and given the fact that now the County Council is looking at a little bit more cautiously on time extension, he's got to get in and out. So, he said, yes, there is no incentive in him prolonging the project any longer than he did. But I wish he was here to make that statement, rather than me. DEFRANCO: Thank you. VITOUSEK: Any other discussion? PAISHON-DUARTE: Mr. Chair, I just want to actually thank the Director and staff for not forwarding the request for administrative time extension. VITOUSEK: I guess one of the things I would bring up is I believe that removing the request for an archaeological field inspection is premature. I believe that standards have changed in SHPD's review of projects since 2005, and I believe that the project that was being reviewed in 2005, that subdivision, is a separate project from the future subdivision that will be reviewed here. I agree with the recommended language in the condition that's proposed on Page 21 of the zoning extension application, with I'd recommend a small revision. The language that's proposed on Page 6 of the application, Page 21 of the PDF, "An Archaeological Field Inspection shall be submitted for the review and approval of the State Historic Preservation Division [sic] State Department of Land and Natural Resources —State Historic Preservation Division (DNLR-SHPD) prior to the issuance of any land alternation permits or the submittal of plans for Final Subdivision Approval, whichever occurs first. The Applicant shall implement any preservation measures, which shall be shown on the final plat map, as" oops, lost my spot—"as recommended in the Archaeological Inventory Survey (AIS) or subsequent preservation plans." I agree with including that condition since SHPD was not able to respond in time. The only change that I would add to that is that we are requesting an archaeological field inspection, but I would like to include language that if archaeological sites are found during the archaeological field inspection, an archaeological inventory survey will be prepared. And honestly, I agree that there is a low chance of finding any historic sites in this area—I've done quite a bit of work in that area but there is always that chance. And to me, it's worth taking the look because this is a development permit. 13 EXHIBIT C So, to me, it's worth having a look, limited look with the field inspection, if they find something, they can do the full AIS that will be included in part of their plan, and I think that they will be able to meet their five-year timeline while doing that. KNOWLES: I like that idea, Chair, because I do think there is that lingering feeling of what has changed in this large gap of time, and I certainly do think our view of archaeological significant sites has evolved. VITOUSEK: Is that something that you and the developer would be willing to FUKE: Well, I can't speak for the developer, but if I were to, if he were sitting on my side right now VITOUSEK: Yep. FUKE: I would recommend that he accept that condition, so VITOUSEK: Okay. FUKE: but I can't speak for him, but you would accept— VITOUSEK: I feel like because that is included in the submittal package to us as an alternative, the developer would agree with that condition. KNOWLES: Hopefully. VITOUSEK: Go ahead? KNOWLES: Hopefully. VITOUSEK: Okay. KAY: Mr. Chair? VITOUSEK: Yes. KAY: Sorry, if that friendly amendment is accepted to the motion, may I please have you restate it for the record, so we make sure we capture everything VITOUSEK: Yes. KAY: that you intend, thank you. VITOUSEK: Yes, absolutely. Okay, I'll make a motion that we amend the motion on the floor to include a condition that"An archaeological field inspection shall be submitted for the review and approval of the State Department of Land and Natural Resources —State Historic Preservation 14 EXHIBIT C Division prior to the issuance of any land alteration permits or the submittal of plans for Final Subdivision Approval, whichever occurs first. If the Archaeological Field Inspection identifies historic properties, an Archaeological Inventory Survey shall be prepared. The Applicant shall implement any preservation measures, which shall be shown on the final plat map, as recommended in the Archaeological Inventory Survey or subsequent preservation plans." Is there a second? KNOWLES: Second. VITOUSEK: Second, Commissioner Knowles. All those in favor of the secondary motion? COMMISSIONERS: Aye. VITOUSEK: [Brief inaudible advice from Deputy Corporation Counsel Wong] Right, is there any discussion on the amendment? Seeing none, [to Deputy Corporation Counsel Wong] shall we do a roll call vote or—we'll do a roll call vote. Jessica? ANDREWS: Yes, thank you, Chair. We are doing a roll call vote on the favorable recommendation with amendment as proposed by Chair Vitousek. KAY: Jessica? ANDREWS: Yes. KAY: Sorry, this is Christian. This is just a roll call vote on the secondary motion, and then we'll get to the main motion after. ANDREWS: Okay, got it, okay, I'll back up here. We are doing a roll call on the secondary motion as proposed by Chair Vitousek. VITOUSEK: Correct. ANDREWS: I'll take a roll call. Chair Vitousek? VITOUSEK: Aye. [In hearing no response from Ms. Andrews] Aye. ANDREWS: And Commissioner Knowles? KNOWLES: Aye. ANDREWS: [Vice] Chair DeFranco? DEFRANCO: Aye. ANDREWS: Commissioner Dela Cruz? 15 EXHIBIT C DELA CRUZ: Aye. ANDREWS: I'm sorry, was that an aye? DELA CRUZ: Aye. ANDREWS: And Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. ANDREWS: Thank you. The ayes have it, five, and Commissioner Kanuha is abstaining. VITOUSEK: Recused. Mahalo. My next question is ANDREWS: is recused, sorry. VITOUSEK: in the language deleting the requirement for Soil and Water Conservation District plans and instead inserting Chapter 10, sediment control, grading and grubbing. Does it make sense to indicate that Chapter 10 or a Soil and Water Conservation District plan would be included? I know DPW has put their opinion that that's still a valid option as an exemption to Chapter 10. KAY: Yeah, soagain, Christian from the Planning Department I don't think it's necessary to explicitly spell that out, because it is an option under Chapter 10 VITOUSEK: Okay. KAY: that they have should they decide to go a more agricultural route. Something else to keep in mind, given the requirement of lot coverage from forest-natural forestation, it might be difficult to do some extensive agriculture there, but should they decide to go that route, then it's already an option to them. VITOUSEK: Yeah, okay, so, it's under the umbrella of Chapter 10. KAY: Correct. VITOUSEK: Okay. FUKE: If I can just kind of add VITOUSEK: Sure. FUKE: just for information, I don't believe like having it approved by Soil and Water Conservation District requires SHPD clearance VITOUSEK: It does. 16 EXHIBIT C FUKE: the grading permit, absolutely does, yeah VITOUSEK: It does, it does FUKE: It does, oh, okay. VITOUSEK: —Soil and Water Conservation District also requires SHPD clearance. Is there any other discussion on the agenda item? Okay, seeing none, we can proceed with a roll call vote. ANDREWS: Thank you, Chair. This is for a favorable recommendation to the County Council, with the amendment that's already approved. Commissioner Knowles? KNOWLES: Aye. ANDREWS: Commissioner Dela Cruz? DELA CRUZ: Aye. ANDREWS: Commissioner DeFranco? DEFRANCO: Aye. ANDREWS: Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. ANDREWS: And Chair Vitousek? VITOUSEK: Aye. ANDREWS: Again, the ayes have it, five, and with Commissioner Kanuha recused. The motion passes. VITOUSEK: Mahalo. You will be notified of the Commission's decision in writing. FUKE: Thank you very much. The hearing ended at 10:58 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 17 EXHIBIT C