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HomeMy WebLinkAbout2008-05-08 TSULLIVAN PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT MAY 8, 2008 A regularly advertised hearing on the application of JOHN T. AND MARY K. SULLIVAN (SMAA 06-000201) was called to order at 11:38 a.m. in the County of Hawaii, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii, with Chairman Rodney Watanabe presiding. PRESENT: Rodney Watanabe ABSENT & EXCUSED: C. Kimo Alameda Lani Bowman Takashi Domingo Andrew Iwashita Alvin Rho Shelly Ogata Rene’ Siracusa Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Staff Planner Jeff Darrow, Staff Planner Larry Brown, Staff Planner And approximately 14 people from the public in attendance APPLICANT: JOHN T. AND MARY K. SULLIVAN (SMAA 06-000201) Review of the Planning Director’s decision in determining that the Special Management Area Assessment Application to allow the construction of a single-family dwelling and related improvements was deemed incomplete. The property is located along the northeast (mauka) side of Wai Opae Road within the Kapoho Vacationland Subdivision, Kapoho, Puna, Hawaii, TMK: 1-4-68:36. WATANABE: Let’s move along to Agenda Item No. 4. Agenda Item No. 4 is applicant John T. and Marry K. Sullivan (SMAA 06-000201). We have a special situation here. And I believe we did not notify the applicant that notice was required and so technically we do have a bit of a situation with that. However, I think I’d like to have, as I mentioned earlier the applicant did fly down from the mainland so, and they do wish to speak. I’d like to have maybe Mr. Torigoe to kind of explain the potential remedies. TORIGOE: Thank you, Mr. Chairman. The issue arises under, well, basically, if you go to Rule 9, 9-11, this is a little bit of a new, I don’t think you’ve ever seen a situation like this before where basically there was an SMA Minor Permit that was applied for, which is an administrative permit. It doesn’t normally come before the Commission. But the rule says basically that if the decision is not made administratively within a 35-day period then it gets forwarded to the Planning Commission; and those EXHIBIT A 1 procedures when it comes here are the same as under Section 9-11.B through D. And under that rule that basically is the, you know, your usual SMA Permit procedures which requires that notice be given, including posting of signs and deliverance of mailed notice, to the owners of properties and others within a certain perimeter boundary of the affected property, as well as public notice given by the Commission. Because, again, this is kind of an unusual situation. If you just go in for the SMA Minor Permit application you don’t need to give all that kind of notice. So this went through, you know, it was filed as an SMA Minor Permit. Apparently the time limit for administration action was not met and so it’s being forwarded to you; but along the way I guess nobody really realized that they had to do the formal notice to the surrounding property owners as well as the public notice. So I guess this was all discussed in the last couple of days; and by that time the applicants had made plans to come out here and be present for the hearing today. And so they are here today. And basically the tail end of this rule 9-11.D says “Any failure to mail or to receive the public notice shall not invalidate the proceedings, provided further that the proceedings conform to the requirements of Chapter 91, HRS, as amended.” I think that clearly applies to the public notice that has to be given by the Commission. You know, how that applies to the actual mail notice to the surrounding properties owners is a bit more of a question. So at this point, you know, the applicants are here. I believe they want to come up and provide at least an initial presentation to the Commission. Probably the ideal situation or the ideal treatment would be if you have a notice issue, you know, just to put it off to allow for notice to be given before you even have any kind of presentation on the matter. Here where the applicants have traveled specifically to be here and they want to present their evidence, you know, you can consider, allow them to go ahead and do that, as long as they are fully informed that there are certain risks involved in doing that. For instance, if one of the surrounding property owners later comes up and says, “You know what, I should have gotten timely notice and if I had gotten timely notice I would have filed for a contested case on this.” That’s the sort of thing that could pop up. But basically I think if the applicants are fully aware of those possibilities, and they still want to go ahead today, you know, then it’s within your discretion to allow for that to happen; and then you can probably look at trying to cure any other issues that may arise afterwards. WATANABE: With a subsequent notice, at some subsequent meeting? TORIGOE: Right. WATANABE: Assuming that no conclusions are arrived at during the course of this meeting? TORIGOE: Right. And I would advise, you know, not going any further today than basically hearing out -. WATANABE: Accepting their testimony? TORIGOE: Yeah, the applicants. EXHIBIT A 2 WATANABE: Okay. With that, we also have another rather special situation because it’s my understanding that, you know, we really should have six Commissioners present if we wanted to go into an executive session; and we only have five today. So that for the most part I believe technically rules out any attempt to enter into an executive session. That’s just for your information.Okay? Because, you know, this case may be a little more complicated than the average case. With that maybe I might turn this over to Mr. Darrow. DARROW: Thank you, Mr. Chairman. If I can direct the applicants’ and the Planning Commission’s attention to the board. The applicants in this case John and Katherine Mary Sullivan are requesting a review of the Planning Director’s determination that a special management area assessment application or an SMAA for the construction of a single family dwelling and related improvements is incomplete because it lacked a shoreline certification. I’m going to give a brief background on this situation. But before I do that I want to just give you the location of this area. The area of this application is within the Puna District, more specifically we’re looking in the Kapoho area. This is Kapohokai Road. You would come off of it off the “Red Road” into Kapoho Vacationland. The applicants’ property is identified with a black outline. On the TMK map you will see that there is a large parcel between Vacationland and the ocean, identified on the maps. This is a 52- acre parcel owned by Vacationland Trust. Another 52-acre parcel is just to the south of the property. The applicants submitted an SMA assessment on September 22, 2006. YUEN: You know, given what counsel said, I don’t think the Planning Department should give a presentation apart from just giving this orientation as to where the property is located. We should give the applicant a chance to present whatever they would like to present. WATANABE: So that said you’re suggesting that we cut this off at this point, the presentation at this point then? YUEN: Yes, we would give our presentation at some later point of consideration for this. If the applicant wants to make a presentation it’s up to the Commission to decide whether to allow that or not. I would like to apologize to the applicants for the Department’s failure to let you know that there was a requirement of notice to the surrounding property owners by mail and posting of the sign on the property. This is the first time that this procedure has come to the Planning Commission of a, basically an appeal of a decision or nondecision by the Director and within a certain timeframe. And that’s the reason why there was this confusion on our part about the correct notice. So we would, if the applicant wants to make a presentation apart from what we’ve just shown as far as the location of the site, that’s fine. But we won’t be making a presentation or a response today. WOODWARD: Mr. Chairman? EXHIBIT A 3 WATANABE: Yes, Mr. Woodward. WOODWARD: If I might ask just a question that has to do with location and geography here. How far is that property from the shoreline? DARROW: This is the big question. WOODWARD: And it looks like it’s a long way to me. I don’t know but, you know, it looks like it’s a fair distance. DARROW: Director, if I could put up the picture of the aerial maybe? Would that be adequate or not at this time? YUEN: Just let me ask, Mr. Yeh, do you have any objections, in response to his question we simply show a copy of the aerial photo? YEH: Well, maybe we can clarify -. WATANABE: I’m sorry, procedurally I guess I should swear you in. Would you raise your right hand. Do you swear or affirm to tell the truth now before the Planning Commission? YEH: I do. Thank you. WATANABE: Yes. And then name and address. YEH: Yes, Thomas Yeh. Business address 85 West Lanikaula Street, Hilo, Hawaii 96720. WATANABE: Would you care to respond to the, oh, is that on? DARROW: It’s on. WATANABE: Okay, it’s on. YEH: Yeah, I’m fine with providing that information because I suspect that the Commissioners do have a number of questions in their mind. We may go through this exercise to some extent again but I think the better that the Commission understands the topography, the geographic issues, where the shoreline is, the better we’ll all be in terms of decision making. So we’re fine with that. WATANABE: Okay. In light of that, may I ask the Director, do you have any objections to that? EXHIBIT A 4 YUEN: No. If it’s all right with the applicant and in response to the question, I think we do have an aerial photo; and I think actually the Commissioners have that in their packet. And so we can put that aerial photo on the screen here. We can skip ahead to the current aerial photo. WATANABE: I guess my question though was, you know, typically we have some follow-up questions, and I’m wondering if you would have objections to any follow-up questions of staff, etc. YUEN: It’s our preference that the Commissioners, you know, that we do as much of this at the meeting where proper notice has been given, if possible. WATANABE: Okay. YUEN: So the question has been asked; but we would prefer as I say to do as much of this at the follow-up meeting as we can. If the Commission is going to allow the applicant to make a presentation, that’s fine. And, you know, the Commissioners can ask whatever questions they want of the applicant at that time. WATANABE: Okay, thank you. So I guess we have the aerial photo now and that would be the, pretty much the conclusion of the staff’s presentation for this meeting. DARROW: If I could just for presentation purposes identify the general location of the property. WATANABE: Yes, sure. DARROW: The property would be in this particular location. I do have one that just brings it a little closer. Again, it’s in this general location here. BOWMAN: Wait, can you show it again. DARROW: Right in this area. BOWMAN: Okay. Down? YUEN: No, that’s the existing house. It’s in the vacant lot between the road and the house. DARROW: So this is the road right here? YUEN: No, I’m sorry, the road is a little bit makai. BOWMAN: On the ocean? YUEN: No. EXHIBIT A 5 BOWMAN: Right there. YUEN: Right there, that’s the ocean. DARROW: Okay. And then this is the property. BOWMAN: Okay. WATANABE: Right. Those are actually two lots, I believe, what you’re pointing to there. DARROW: And then I’ll put it back so you can again refer to it. WATANABE: Okay. Well, I guess it’s all more like testimony technically. So since you’re already sworn in and we’re not going to proceed any further with the staff presentation, maybe you can do the presenting, Mr. Yeh, for the applicant. YEH: Yes, thank you, Mr. Chairman. First of all, yeah, this is a little bit of a different context that we’re in because of the hybrid nature of these kinds of applications. Normally when the SMAA application comes in for an SMA minor there actually isn’t any notice given to surrounding property owners, and administratively the Planning Director can issue that permit. While the applicant does want to give the Commission a brief outline of what transpired from even the time before the application was submitted to the present, we do want to reserve our ability because not having now seen the entire Planning Department presentation to be able to respond to it, to be able to at least have that opportunity at the next scheduled meeting for this matter. What you have in front of you also as part of the Planning Department’s presentation and materials is, if you take a look at their Exhibit F, and I’m not sure you all have that, you will see that that’s the blown-up version of what’s on the screen. But you will see that there’s a red vehicle and then there’s a couple of vehicles that you’ll see actually parked on what is Waiopae Road. The applicant’s property is actually approximately where that blue vehicle is. And our position is that the applicant’s property which is mauka of where that blue vehicle is does not abut the shoreline, pretty clearly. There is what I would probably characterize as a super high tide, some water that comes from the ocean and goes on to a portion of Waiopae Road. Now Waiopae Road is a lot in and of itself. So we’re talking about what property abuts the shoreline, clearly the one that’s makai of Waiopae Road and even at the greatest stretch Waiopae Road itself, but not the applicant’s property. And so as you’ve seen from our presentation that’s part of the thrust of what our position is here today, is if you take a look at the rule itself it says “shoreline survey required for properties which abut the shoreline.” EXHIBIT A 6 Nevertheless, in trying to work with the Planning Department prior to submitting their application in September in 2006, the applicant worked with the Planning Department staff to try to understand what, at least from the Department’s standpoint, it was felt to be necessary to submit as part of their application. Planning Department staff basically said, well, you need to do this high tide survey, it doesn’t have to be certified but you need to do a high tide survey. So in June of 2006 about three months before this application was submitted, they went out with Planning Department staff with their surveyor -- Mrs. Sullivan can tell you a little bit more, and I’m still trying to figure out whether it should be today or at the next meeting -- and essentially got the comfort level that this is fine, your property is not part of the shoreline, come in with the application. They do that in September. Month and a half passes, applicant asks Planning Department, “Where is this thing at? Basically we’ve got this 35-day period coming up, what’s going on?” Planning Department staff says, “Well, we want to take another look at it because we think that Waiopae Road gets some flooding from time to time. You can have a 20-foot setback on your property but if you don’t want to do that you better get an extension from us.” If you were in the applicant’s shoes, this is what you’d do. You’d be fearful of getting a denial so you’re going to give the Planning Department an extension which occurred. Thirty-five day period passes, nothing from the Planning Department. Then they do receive a letter, and at the same time they’re sending a letter to the Planning st Department that crosses this other one, they get a letter that’s mailed on November 21, th backdated to November 15, query whether that’s a proper thing for an agency to do. I’ll leave that to you to conclude. But in that letter there’s a statement that there’s now a shift in policy from DLNR saying that we will now certify shorelines. Of course this begs a question as to whether or not one was necessary since this property doesn’t abut the shoreline. But here we have now the so-called shift in policy. What we’ve provided to you, as part of our submittal, was Chapter 91, HRS, which all agencies including the Planning Department and the Planning Commission are required to follow when they adopt and implement policies that affect the private rights of property owners. And so if you look at Chapter 91, and that would be our Exhibit or Attachment K, Section 91-1 provides as a rule “…each agency statement of general or particular applicability and future,” and I emphasize the term future, “effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term does not include regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public….” So when we’re dealing with private rights issues or procedures available to the public, this whole SMAA application process requires clear definitive rules by which the public can expect to reply on from an agency. If you take a look at Section 91-2, subsection (b), which is the following page, “No agency rule, order, or opinion shall be valid or effective against any person or party, nor may it be invoked by the agency for any purpose, until it has been published or made available for public inspection as herein required….” And the procedures for adoption of a rule are laid out in the subsequent section. So, essentially our position is this – At the time that the applicants submitted their application the Planning Department didn’t say, hey, you need a certified shoreline survey, it’s incomplete now. After the deadline for the determination expires, this letter EXHIBIT A 7 gets backdated saying you’re now required to do something in the way of a certified shoreline survey. Is this a retroactive application of a rule that’s in violation of Chapter 91? Yes. Is there an improper interpretation of what the term “abutting the shoreline” means? Yes. And then now we add to this mix the fact that okay, Planning Department you missed the 35-day decision requirement, now you shall forward that application to this Commission to consider. This Commission basically a year and a half ago should have considered this particular issue, not May of 2008 but back when the standard that was then being applied by the Commission said we use a 2.8 tide survey. Now what happens? Late 2007 DLNR says, well, it used to be 2.8, now it’s 3.2, without also adopting rules in terms of shoreline certifications. DLNR certification rules don’t have any rules of so-called particular applicability to the Kapoho Vacationland area. So we not only have this Planning Department but also the DLNR doing similar things. And here we are now in May of 2008, conditions have changed. You’ll see that during the next hearing, Waiopae Road has changed, everything has changed. And now the applicants are being expected to comply with a standard today that wasn’t applicable then. That’s the basic fairness or unfairness of this, and it implicates these due process issues that we have raised. What I did want to do though is, yesterday was actually a 2.94 tide. I submitted photos based on a 2.6 tide that was done on Saturday. Again, it doesn’t show any water going into the applicants’ property. There is some that comes to the edge of Waiopae Road, but that’s all. I think for purposes of today, I think for purposes of the record, it may shorten some time next time. I realize the risk that you talked about but I suspect that since the Commission is going to be continuing the hearing anyway the public, to the extent that they want to, will have the opportunity to make their presentation, too. But this is all I wanted to do today in light of the circumstances. But if you have any questions, I’m willing to answer them. Thank you. WATANABE: Okay, I see, Ms. Siracusa. SIRACUSA: Yes. I am extremely familiar with this area cause I’m from Puna and I’ve spent a lot of time down there. So I have a distinct advantage over the other Commissioners. And since a lot of this has to do with the topography, I think it would create a more level playing field if we scheduled a site visit; and I’m wondering if you would object to that. YEH: I need to talk it over with the client, but it may be the appropriate thing to do. SIRACUSA: Would the Director care to comment on that suggestion? YUEN: It’s fine with the Department. It is a very interesting area that although it hasn’t been much to the Commission it has been a great deal of, there has been a great deal of action on it administratively. We do have to make note that you will be limited as to when you can go, and it’s unlikely that you’ll be able to coincide your visit with an extreme high tide event, or even a monthly high tide maximum which they EXHIBIT A 8 tend to come at the early morning or very late afternoon. But with that understanding, if the Commission wishes that’s fine with the Department. WATANABE: Okay, we have one question on the table; but as I recall you said you would have to consult with your -. YEH: Yes, and maybe that’s something we can schedule when the scheduling of the Commission’s next hearing is going to occur. WATANABE: Okay, potentially. If there are no other questions, I do have a question. Apparently this property is mauka, right -? YEH: Correct. WATANABE: Of the road? YEH: Yes. WATANABE: Do you have a topography map, topo map of the particular property, and along with -? Well, you know, again, we’re in kind of a unique situation here, but it might help that we have that at your next presentation, a topo of the property itself, as well as what is the actual elevation of the road. And, you know, I assume that if we do decide to do the site visit that you’ll be able to present pictures of that 2.9 tide, which is not quite meeting with the 3.2 that the State now is apparently asking for. But I assume the landmarks would give us a pretty good idea of where the shoreline -. YEH: Okay. WATANABE: And, you know, between that and the topos I would guess that we could arrive at some conclusion. I don’t suppose that area is sinking that rapidly that it would change on a weekly basis. YEH: I would agree with that. The other thing I wanted to point out too which, you know, I wanted to correct a little bit in terms of the impression that may have been presented was as Ms. Siracusa may know too basically in 2005 Planning Department actually issued an SMA permit for the placement of porta potties on the applicant’s property to accommodate people who do go down to that area to visit on busy weekends, holidays, and the like without any sort of survey. WATANABE: Yeah, then again though I, okay -. YEH: Yes, let me, I was just going to add to that. You know, I had thought it was just for a particular weekend but no, in fact, the applicant has allowed the Vacationland Subdivision Association to continue to place those porta potties on the property on essentially 1ong and holiday weekends; and I believe they’re still going to EXHIBIT A 9 allow that to continue to occur, even if they get their building permit. They want to accommodate the neighbors in the area, too. WATANABE: Okay. That addresses the good neighbor issue, but then porta potties by definition is something that can be moved. YEH: Correct. WATANABE: You know, we’re kind of talking about a more permanent structure. YEH: I understand. WATANABE: Okay. But I think you know, again, if we had the topo, those would all help. This probably, ma’am, I’m not sure how much you want to present here at this time. I’m just trying, hopefully, preface all of these things for the next meeting so that when proper notice has been given it’s not like, oh, by the way, do you have this or do you have that. YEH: Understood; and I appreciate that. And what we have, actually, our Attachment 1 has a topo map as part of our submittal, just for the record. WATANABE: Thank you. Do we have any further questions for the applicant or the applicant’s representative? No? Then I trust you’re going to consult with your client to see if a site visit is appropriate. YEH: Yes. WATANABE: And I do have from the public a Katherine Duman who signed up to testify. So I would take this opportunity now to call her up. -. DUMAN: I’m going to follow Mr.Yeh’s lead and speak another time. YEH: I think she’s going to reserve her presentation -. WATANABE: Oh, okay. So for the record you waive your right to testify right at this meeting and we’ll expect to hear you at the next meeting? DUMAN: Yes. WATANABE: Okay, thank you. Then maybe we should allow you some time to consult with your client. YEH: Yes, yes. Thank you. WATANABE: Yes, Ms. Bowman. EXHIBIT A 10 BOWMAN: I don’t have a question of the applicant but I do have a general question for the Planning Department. The lots makai of their lot as shown in Exhibit J, those are under, I mean, they’re in water now, right? Just for my information, is that so they were, what happened to them? WATANABE: Well, go ahead. I’m sorry. Go ahead, Chris. SIRACUSA: That’s one of the reasons I’m asking for a site visit. YUEN: I want to again ask Mr.Yeh if he has any objections to my giving what our version of the answer to that would be. YEH: No. And then we can respond accordingly. YUEN: Okay. There are some variation in topography. Some lots are completely under water, some lots are partially under water and there may be some lots, particularly -. You see there’s a big turn in the road that goes inland. BOWMAN: Yes. YUEN: There’s actually a cove there and some of the lots in there, I’m not sure that all of those lots are completely or partially under water in the cove portion. But there have been houses that have been built at various times, including times in which the rules were not the same as they are now. So there are homes in the area, as you’ll see the aerial photo, and it shows there are a few homes makai of the road. So, you know, there is a fair amount of water on that row of lots. BOWMAN: But they haven’t been condemn and taken by the County or the State? YUEN: No. BOWMAN: Okay. Thank you. WATANABE: In response to that also in Today’s Tribune Herald I believe the Department of Land and Natural Resources is going to be considering one issue where the owner’s lot is basically submerged; and he’s talking about, you know, building up a wall so that he can have a refuge for the fish and the green sea turtles, etc. They’ll be considering that I think it was in the near future anyway. But that article did indicate that the actual land is owned by the individual but the State owns the water that flows over the land, and whatever wildlife enters within the water. So it’s kind of convoluted. BOWMAN: And just pardon my ignorance cause I live on the other side of the island where it goes like this, yeah. EXHIBIT A 11 YEH: And speaking to Mr. Watanabe’s mention about that, that’s actually, that property that you saw in today’s Tribune Herald article was actually one of the permits that we provided to the Commission where a low-tide datum was used to determine the shoreline in 2005. So it illustrates essentially the various shifts in policy that were occurring then. I have talked to the clients, they do feel that it would be fair and appropriate for the Commission to visit that site. My only concern, of course, is that when we get into this issue later about what standard applies when that we’re going to have some differences about that. So, that’s all. WATANABE: Well, hopefully we’ll have enough Commissioners present that there can be some discussion amongst us and we can still arrive at some type of reasonable conclusion. YEH: Understood. WATANABE: Do we have any other questions for the applicant? SIRACUSA: Can, can -? WATANABE: Yes, Ms. Siracusa. SIRACUSA: Can we decide among us here if the other Commissioners would feel more comfortable with a site visit so that they can see the situation on the ground? WATANABE: Yeah, I was planning to address that. And I think, you know, if we decide that a site visit is appropriate that the staff would be able to, you know, give the other Commissioners due notice. Yes, Mr. Yeh, do you have -? YEH: Well, the only other thing I was going to say is, you know, that’s good to do; but even in the absence of that we feel that the photographic evidence that we’re going to provide or have provided already is also good for the purpose. But I understand. WATANABE: Okay, thank you. SIRACUSA: The -. WATANABE: Ms. Siracusa. SIRACUSA: The photographs are aerial views and they’re great; but it doesn’t show a lot of things that you would see if you were standing five or six feet above, you know, as where our eyes are and catch details that way. I just, you know, feel that if it was me coming from the other side of the island I would want to have a better feel for the situation. EXHIBIT A 12 WATANABE: Well, we’ve had the consent of the applicant for a site visit. Now shall we agree or discuss whether we feel a site visit is necessary? Yes, Ms. Bowman. BOWMAN: Yeah, I definitely think it is because I’m looking at, you know, there are other properties there that will be coming up maybe for a Minor SMA. But I think it would be very beneficial for all of us to go as soon as possible. WATANABE: We’ve heard from one. Mr. Woodward? WOODWARD: I agree, I love road trips. WATANABE: Okay. And I know Ms. Siracusa agrees. So then Ms. Ogata? SIRACUSA: Pardon me? WATANABE: I know you agreed to the site visit. Ms. Ogata, I haven’t heard from -. Shelly, how do you feel? OGATA: I guess so. WATANABE: Good, okay. Okay, then it’s agreed then, yeah, that we’ll schedule a site visit for the next Hilo meeting. Now let me make sure that the next Hilo meeting is appropriate for all of this and due notice will be provided by mail so we won’t have these other issues. All of that is fine, Mr. Hayashi? th HAYASHI: The next Hilo meeting is on June 6. WATANABE: Do we have room, though, on the calendar for that? HAYASHI: Do we have room? WATANABE: Yeah. HAYASHI: We can make room. WATANABE: Make room. Okay, okay. BOWMAN: I have a question. WATANABE: Yes, Ms. Bowman. th BOWMAN: So the site visit will be obviously before the meeting, the June 6 meeting? WATANABE: I’m not sure. EXHIBIT A 13 HAYASHI: It will be before you take up this matter. I still have to look over the schedule. BOWMAN: Oh, okay. HAYASHI: We may have to take a break or it could be before we start our normal meeting. WATANABE: Yeah, so -. We could then notice when we start and provide us ample time to get back and, etc. BOWMAN: Okay. WOODWARD: Mr. Chairman? WATANABE: Yes, Mr. Woodward. WOODWARD: The last time we had a road trip was at Papaikou? WATANABE: Pepeekeo. WOODWARD: Pepeekeo, easy for you to say, we did it right before the meeting. We got here a little early and we took the trip and then we started the meeting, you know, at 9:30 instead of 9:00, or something like that. So sounds like that would be a good thing to do; and people could either come here and, you know, take the van down or take their own cars down, whichever. BOWMAN: I just have a concern because some of us live 2 hours or 2 ½ hours away. And don’t you have traffic out there in the morning? OGATA: Not going. YEH: Not -. BOWMAN: Oh, we’re going across. So we need to consider that, for those of us that live -. WOODWARD: No, that’s cause you live in Kohala/Kona, they have traffic there. So it’s not so much here. BOWMAN: Oh. WATANABE: Okay. SIRACUSA: We will be going, if it’s the morning, you know, we will be going against the general flow of traffic. EXHIBIT A 14 BOWMAN: Okay. But we’d have to leave here by about 8:30? WATANABE: Well, I think your concerns, staff is aware of your concerns. BOWMAN: Okay. WATANABE: And so maybe we can afford them the flexibility. It appears to me we have sufficient time to plan for that and to address some of the concerns with regard to what time and all that. HAYASHI: Mr. Chairman? WATANABE: Yes. rdth HAYASHI: I was just informed that on June 3 or 4 the tide will be approximately 3 feet. BOWMAN: What? rdth HAYASHI: June 3 or 4. YUEN: Yeah, but at what time? HAYASHI: We don’t know what time. It was a reasonable hour during the day but we don’t know what time. BOWMAN: May I just, and pardon me if I don’t know the protocol but we can’t go tomorrow? SIRACUSA: I can’t. TORIGOE: You have to give notice. BOWMAN: Oh, you have to give notice, okay. Because we’re here for the meeting tonight, okay, sorry. YUEN: But strictly as a technical matter you can continue a meeting. When you’re right here at a meeting you can continue the meeting to another time and place and do that. You know, you can say we’re going to meet again tomorrow, you know, at such and such a time. Ivan, correct me if I’m wrong. That’s a continued meeting. Now we have this problem with this one here where we already have a notice and hearing problem and then we also have a practical issue on quorum and the like. But when you’re, and the idea behind that is that you’re here at a meeting and anybody interested in the meeting can be here and then you can continue it to, you know, another time and place, as long as it’s continued, it’s my understanding. EXHIBIT A 15 WATANABE: Okay. Now that said, I believe you indicated that the next Hilo th meeting was June 6. Is that right? th HAYASHI: It is on June 6 and we do have a substantial number of applications that day, like over seven or eight. WATANABE: Oh, okay, okay. However, these people have been waiting for rd quite a while now. So, let’s see, and then that particular high tide was on the 3? HAYASHI: We’re checking on that right now. The thing is that, you know, it’s up to the Commission when you folks want to have that site inspection. It could be the th day before the meeting, which would be June 5. WATANABE: But that’s not the high tide, right? HAYASHI: That will be the day after, I guess. WATANABE: Yeah. That’s a lot of traveling though. And there’s no way to rd have a special meeting on, say, to address just this issue on say June 3? Is there anything that precludes that, let me, or makes it really -? HAYASHI: The only thing is the availability of this room or meeting place. As far as, I can’t see any other conflict, unless the Director needs has to be at some other place on June, that particular day. WATANABE: Mr. Yeh? YUEN: Well, you can do a site visit without me, sure, no problem. YEH: Well, what I was going to say too is, you know, it might be good for me to check my calendar to see if I’m available. WATANABE: What date is good? YEH: Yeah, yeah. So it’s another issue. So -. WATANABE: Okay, then with that in mind then, let’s say we’re going to continue to the next available meeting date or when all parties can convene. YEH: Yes. WATANABE: Shall we conclude that and then leave it up to you all to work the schedules out, and you can try to work out the time, if at all possible? If not, well, you know -. EXHIBIT A 16 HAYASHI: Yeah, we can do that. I don’t know what the Commission’s rd itinerary is as far as June 3. WATANABE: Yeah, actually I don’t know what mine is either. YEH: Yeah, so I was going to suggest why don’t we work, we can work with the staff and try to figure out when would be good. WATANABE: Yeah, we’ll leave it up to you. And you’re going to have to provide notice anyway, and that means that it gives us some additional time to do some juggling with our schedules if need be or, you know, hopefully we’ll have enough Commissioners available for that. BOWMAN: I have a question. WATANABE: Yes. BOWMAN: I personally don’t think it’s essential to be there at a high tide. My suggestion is maybe send a Planning Department person down there to take some pictures -- I think the main thing is to see the general area -- or you guys take the pictures, whoever, and document. And then we could go down the morning before a meeting. That’s just my suggestion. WATANABE: Yes, Ms. Siracusa. SIRACUSA: I think it would be preferable if we could catch a high tide because then we’re sort of killing two birds with one stone. We’re getting two pieces of information there, you know, the tide as well as the lay of the land. But I don’t think it’s absolutely essential if we go and it’s not high tide, and we’re aware that it’s not high tide you know, as long as we keep that piece of information in our minds when we’re assessing what we’re looking at. WATANABE: Well, let me ask this then, and I’m not really versed in this, but I’m assuming that if we got a 2-foot tide and we’re looking for a 3.2 tide that -. That’s why I asked for the elevations. As long as we record what the tide was on that particular site visit could we then just add another foot or two feet and surmise that’s where the shoreline would be more or less? rd HAYASHI: We have a chart that was just handed to me. On June 3 at thth 3:37 p.m. the tide would be 3.2. One June 4 at 4:24 p.m. it will be 3.5. June 5 it will be 3 feet at 5:12 p.m. WATANABE: So 5:12 p.m. YEH: What I have here and I might as well just submit these photos, just right now since we’re on the issue, and staff can print it up -. EXHIBIT A 17 SIRACUSA: Do we have to move to put those into evidence? YEH: Yeah, well, I was just going to say staff could print them up and provide them to you. But, basically, those photos were taken yesterday about 5:30 p.m. There’s about 2., 5:00 to 5:30 it was about a 2.9-foot tide, so it will give you an idea what the property looks like at that time. In terms of extrapolating, I think you’d have to then have a really -. WATANABE: Great topo map because -. YEH: Yeah. WATANABE: Yeah, I know water flows, you know -. YEH: As of that point in time, so that may be a bit different. But I think as Commissioner Bowman indicates, yeah, I mean, you can get a sense of what that property looks like now with a 2.9. And part of the thing that we’re emphasizing too is that the standard given that was being applied when the application was submitted was at 2.8, so -. WATANABE: Okay. So let me see if we’re in agreement here. We will leave the next meeting date when we’ll address this subject again up to the staff and representative th and not pin it down necessarily to June 6, is that correct? HAYASHI: If that is the wish of the Commission. However, we’ll have our th regular meeting on June 6. th WATANABE: Yeah, we have a regularly scheduled meeting on June 6. Okay, and maybe, we‘ll leave it up to you and you figure out whether we can address all of this th on June 6 or whatever. At least myself I’m willing to be as flexible as we can. Is that agreeable? Yes, Chris. YUEN: Just for the Commission to note my expectation is that the th Commission will be voting on the Puna Community Development Plan on June 6 so th you need to not skimp on the time for the June 6 meeting. WATANABE: Oh, that’s one of the eight or whatever. That’s going to detract quite a bit. Mr. Yeh, I see you’ve been consulting with your clients. YEH: Well, what I was discussing and trying to, maybe it is possible July would be okay, too, but I need to work out with staff scheduling, so that’s the -. WATANABE: Okay. Then why don’t we provide you with the latitude so that th we’re not pining you down to the June 6; and then consult with your client and Planning Department staff and let’s, we’ll give you the flexibility to schedule it. Yes? EXHIBIT A 18 HAYASHI: Just to be clear, from the staff’s standpoint, is if you have a site visitation on a different day possibly on June 3rd, that the Commission is also willing to go into a special session to act on this particular, or to discuss this petition? Is that my understanding? WATANABE: Well, if we can. You know, where it’s real hard -. I can’t commit for everyone else but for myself if we could do that I’d be willing to do that, if we said rd okay, we can get there on June 3 and we can have enough people. Now the reason I’m saying it’s kind of difficult is because I don’t know if the other 8 Commissioners feel the same way. And if we have only five then maybe it’s pointless. HAYASHI: Yeah, I understand that. My question was really is the Commission willing to have a site inspection and a meeting on the same day, separate from a normal meeting date? WATANABE: Yeah, I’m willing to. What about the rest of you? BOWMAN: You know, despite everything that they’ve gone through I think it would be of great benefit to have a meeting so we could make a decision on that day? WATANABE: That’s what we’re polling to see if we could have, in other words, rd basically two meetings in June, like on the 3 -? rd BOWMAN: What day of the week is June 3? OGATA: Tuesday. KAWAHA: Tuesday. th BOWMAN: Okay, 4 would be better for me but I really think -. HAYASHI: Yeah, that’s something that we can take into consideration. BOWMAN: Okay, I would make the time to come cause I think it’s important. WATANABE: Mr. Woodward? WOODWARD: Good with me. WATANABE: Ms. Ogata? OGATA: Okay. WATANABE: And, Rene’? Do you feel comfortable? EXHIBIT A 19 SIRACUSA: I’m checking my calendar. WATANABE: Okay. OGATA: I’m assuming staff would check with us as far as quorum issues, like they usually do, right? HAYASHI: Yes. SIRACUSA: Actually I’m okay any of those days. WATANABE: I don’t have my calendar with me but I will try to be as flexible as I can in light of all that has occurred. And so, you know, if we can get that done then I’d like to provide them with the time. BOWMAN: Just a question. So they will let us know, if there’s for sure a quorum then we’ll do it, right? Is that how it goes? WATANABE: Yeah, yeah. BOWMAN: Thank you. WATANABE: And preferably, you know, we have at least seven so we can have room for some dissension. I mean, you know, but you know what, let’s do it anyway, cause then at least those who are available will have seen the site. SIRACUSA: Mr. Chair? WATANABE: Yes. SIRACUSA: I have the least distance to travel to get to this site visit so I will defer to the schedules of the Commissioners who have to travel the farthest. WATANABE: Okay, thank you. YEH: Yeah, and ours and the applicant’s schedule. So like I said we’ll work it out. WATANABE: You all work it out, okay. Then it’s pretty much agreed. And if possible we’ll try to decide then, hold the meeting then. Okay. Yes, Ms. Bowman. BOWMAN: Yeah, just because you said if at least we’ll have seen the site but I would really like to do our best to make sure we get everything done that day so the applicant doesn’t have to wait any longer. YEH: Thank you. EXHIBIT A 20 WATANABE: Yeah, that’s our goal. BOWMAN: Okay. Thanks. YEH: Thank you, thank you. WATANABE: Okay, satisfied? YEH: So far. WATANABE: Good, good. Let’s shoot for that and then we’ll be checking our emails. YEH: Thank you. WATANABE: Okay, with that -. Let me ask Mr. Torigoe, as the presiding officer then I have the ability to, we don’t have to vote on continuing? TORIGOE: Yes. WATANABE: Yeah, and then with that then, for the record, we are continuing this until further notice and subject to the schedules of all parties involved. Okay, so that takes care of Agenda Item No. 4. The discussion ended at 12:39 p.m. Respectfully submitted, Sharon M. Nomura, East Hawaii Secretary EXHIBIT A 21