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HomeMy WebLinkAbout2005-05-12 TMOYLAN PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT MAY 12, 2005 A regularly advertised hearing on the application of PATRICK AND THERESA MOYLAN was called to order at 3:26 p.m. in the County Building, Councilroom - Room 201, (SPP 04-016) 25 Aupuni Street, Hilo, Hawaii, with Second Vice-Chairman Hannah Springer presiding. PRESENT:Hannah Springer ABSENT & EXCUSED: Fred Galdones C. Kimo Alameda Bill Graham Andrew Iwashita Jeffrey McCall Allen Salavea Rene€ Siracusa Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director NormanHayashi,PlanningProgramManager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 20 people from the public in attendance. APPLICANTS: PATRICK AND THERESA MOYLAN (SPP 04-016) Reopening of public hearing to entertain Motion to Rescind Planning CommissionŒs approval action on April 1, 2005 on Special Permit to allow the establishment of a cabinet shop on 2 acres of land situated in the State Land Use Agricultural District. Upon approval of the Motion to Rescind, the Planning Commission will then conduct a public hearing on the application. The th property is located at the southern corner of 37 Street and Melia Street, Orchidland Estates Subdivision, Keaau, Puna, Hawaii, TMK: 1-6-8:102. SPRINGER:Members, we now have an insert, I believe, that was circulated to Unfinished Business, Item 1A. The applicants are Patrick and Theresa Moylan. It€s for Special Permit 04-016. We€ll be reopening, this is reopening of the public hearing to entertain a Motion to Rescind Planning CommissionŒs approval action on April 1, 2005 on the Special Permit to allow the establishment of a cabinet shop on 2 acres of land situated in the State Land Use Agricultural District. Upon approval of the Motion to Rescind, the Planning Commission will then conduct a public hearing on the application. The property is located at the southern corner th of 37 Street and Melia Street, Orchidland Estates Subdivision, Keaau, Puna, Hawaii, TMK:1-6-8:102.Jeff,you€regoingtobewalkingusthroughthis? DARROW:Woulditbeproperforthemotiontobeheardfirstorvotedupon;andafter that if it would please the Commissioners if I could give a presentation of the project. 1EXHIBIT B SPRINGER:Maybe we should have Mr. Torigoe walk us through this. I€m not familiar with the motion to rescind. TORIGOE:Okay. Thank you, Madam Chair. I think, well, what I was expecting to happen was that we would have a little bit of an explanation factually of why we are entertaining a motion to rescind at this point. DARROW:Okay, thank you. The item has been placed back on the agenda again to entertain a motion for the Planning Commission to be able to rescind the previous approval of the special permit allowing a cabinet shop within the Orchidland Subdivision. The reason for the request to rescind is based on improper notification that the Planning Department did not notify all surrounding property owners at the time that the previous matter was continued based on lack of quorum. So the Planning Department was responsible for notification to surrounding property owners. We apologize both to the applicants as well as to anybody that, the surrounding property ownersthatwereaffectedinthisarea. SPRINGER:Thankyou.Commissioners,doyouhaveanyquestionsofeitherthestaff of the Deputy Corporation Counsel? SIRACUSA:Yes. SPRINGER:Commissioner Siracusa. SIRACUSA:I was wondering if, does that mean that we have people here to testify today who had not been notified? DARROW:It is my understanding that there are people signed up to testify. SIRACUSA:Okay. SPRINGER:We have three members of the community. SIRACUSA:In that case I would be willing to make the motion, if that€s appropriate at this time. SPRINGER:Yes. SIRACUSA:Okay. In the matter of special permit application SPP 04-016 of Patrick and Theresa Moylan, I move that we rescind the Planning Commission€s previous approval action on April 1, 2005 in order to reopen the hearing on the matter. IWASHITA:Second. SPRINGER:Thank you. It has been moved by Commissioner Siracusa and seconded by Commissioner Iwashita to rescind the Planning Commission€s approval action of April 2, 2005. It has been suggested that we should invite the applicant to the table at this time so that 2EXHIBIT B they can be a part of this discussion, as may be appropriate. Is the applicant or their representative in the room? At this time, in addition to the applicant, we have three people signed up to testify, David Schreiber, Richard Gallagher and Mya Pawu. DARROW:Madam Chair, should we vote on the motion? SPRINGER:I€m sorry, sir, the intention is to have the courtesy of you being at the table with us. We€ll swear you in following this vote. You€re welcome to stay there. Okay. Sir, I would like to swear you in at this time. Can you raise your right hand, please. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? MOYLAN:I do. SPRINGER:Thank you, sir. Couldyoustate your name and address for the record. MOYLAN:Patrick Moylan, PO Box 1306, Pahoa, Hawaii. SPRINGER:Thank you. You€ve heard the discussion up to this point and you know that there€s a motion to rescind the previous action before this body. Do you have any comments on that? MOYLAN:No. I understand. SPRINGER:Thank you. Thank you, Mr. Darrow. Could we proceed with the roll call vote. DARROW:Thank you, Madam Chair. Commissioner Siracusa? SIRACUSA:Aye. DARROW:Commissioner Iwashita? IWASHITA:Aye. DARROW:Commissioner Alameda? ALAMEDA:Aye. DARROW:Commissioner Salavea? SALAVEA:Aye. DARROW:Commissioner Watanabe? 3EXHIBIT B WATANABE:Aye. DARROW:And Madam Chair? SPRINGER:Yes. DARROW:The motion passes six tozero to rescind the previous approval action on April 1, 2005. SPRINGER:Thank you. Jeff, can you continue with the background report, please. DARROW:Thank you. If I may direct your attention tothe location map on the board. The area of this application is within the Puna districtofHawaii. More specifically, we will be looking at the area of Orchidland Subdivision. This white line runningin a north, northerly-southerly direction is Keaau-Pahoa Road. This way would be towards Keaau, this would be in the Pahoa direction. The blue with a little bit of green coloring is identified as the Orchidland Subdivision. The blue color signifies Agricultural 3-acre zoning. The green, lighter greenshadesareAgricultural1-acrezonings. th Theapplicationisonthecornerof37 and Malia Street; and it€s identified by a red dot here. The applicants have submitted a site plan recently. If I could direct your attention, the applicants Patrick and Theresa Moylan is requesting to legitimize an existing cabinet shop which is located on a 2-acre parcel within the Orchidland Subdivision. Identified on the edges of the map are the th street names, 37 Avenue and Malia Street. This property is located on a corner. The brown signifies the driveway location. We have the existing residence which is a 5-bedroom residence which the applicant and their family reside in. And identified in red is the existing cabinet shop where the operation is being conducted at this time. The conditions to mention are, the Planning Director has placed in conditions that will help minimize impacts to surrounding property owners. These include conditions relative to air filtration system requirements, that the applicant will be required to place an air filtration system tobeabletomitigateanytypeofsmellorfumesthatwouldcomeoutoftheoperation.The applicant will be required to comply with Department of Health noise requirements for residential,just55dba,ratherthanthepermitted70dbawhichwouldbeinagriculturalzones. So that would help minimize the noise impacts. The applicant will be required to either permit orremovetheexistingstructure,andeitherbringthisstructureuptoapermittedstandardorto create a new structure. Within that structure all materials that are being conducted with the businesswillneedtobestoredwithinthere,aswellastherewouldbesound-proofingthatwould be required. The Planning Director is recommending approval of the special permit by the PanningCommission.Arethereanyquestions? SPRINGER:Commissioner Siracusa? SIRACUSA:On this update recommendation and on the third line it says that the recommendation was made without the benefit of public testimony. But it is my recollection that 4EXHIBIT B Mya Pawu was here at the last hearing and did give public testimony on this. And, therefore, that€s an error; and I would like to see it go into the record thatthat was, that line is in error. DARROW:Ifit€s okay, if we could just add in a small addition, the word all,‚ is made without the benefit of all€ public testimony.‚ And that would just beadded within the recommendation. That way at least it will make it clearer that this recommendation was given without all public testimony. SPRINGER:So that€s on the third line of the first page. DARROW:Correct. IWASHITA:Madam Chair? SPRINGER:CommissionerIwashita. IWASHITA:Becausewe€reredoingthisbaseduponthenoticeissueand,Iguess,my perception is that what happened before is sort of like washed out and so we need to make, and if it, we really need to make a new record today, right, in order -? Whatever action we take today is just based on today€s record? And it seems to me the notice issue puts into question what was presented last time because it was technically not proper to do so. So, in that light, maybe it€s legalese, but I think the statement in the recommendation is correct, if you look at it that way, that we really cannot consider that other, you know, the old hearing. SPRINGER:Thank you, Commissioner Iwashita. Mr. Torigoe, can you comment on this? TORIGOE:Well, at this point have we had any requests for contested case intervention? DARROW:No, we have not. TORIGOE:No, okay. If there is no one who is asking for intervention, then we may be able to cure that and save some trouble by simply having, basically, incorporating the prior record into today€s proceedings, if there is no objection from the applicant and if there€s no other party that actually has standing to object to that, and if the Planning Director is agree able. SPRINGER:Commissioner Iwashita. IWASHITA:I would be willing to make such a motion if the Chair would entertain it. SPRINGER:Mr. Director, do you have any comments? YUEN:That€s fine with me. SPRINGER:Commissioner Iwashita? 5EXHIBIT B IWASHITA:I move that the record consisting of the consideration of this matteratthe April 1, 2005 hearing be incorporated into the record in this proceeding today. SPRINGER:Thank you. SIRACUSA:I€ll second that. SPRINGER:That was a motion made by Commissioner Iwashita and seconded by Commissioner Siracusa that the record of this item SPP 04-016 fromthe April 1, 2005 Hawaii County Planning Commission meeting be incorporatedinto today€s record. Any discussion? Jeff, if you could give us a roll call vote. DARROW:Thank you, Madam Chair. Commissioner Iwashita? IWASHITA:Aye. DARROW:CommissionerSiracusa? SIRACUSA:Aye. DARROW:CommissionerAlameda? ALAMEDA:Aye. DARROW:Commissioner Salavea? SALAVEA:Aye. DARROW:Commissioner Watanabe? WATANABE:Aye. DARROW:And Madam Chair? SPRINGER:Yes. DARROW:The motion passes six to zero. SPRINGER:Thank you. Mr. Moylan, do you have any comments at this time? MOYLAN:No. SPRINGER:Thank you. We do have, and, Commissioners, do any of you have any questions for the applicant at this time? Commissioner Iwashita. 6EXHIBIT B IWASHITA:Mr. Moylan, in going through the papers for this, I guess, I had one concern that came in my mind; and that is whether or not you used anything that would be considered a hazardous material in your shop. MOYLAN:Well, we do use lacquer for the coating of our cabinets; but we have put in a filtration system which takes out all the particles in the air so that you just have like fumes, and we do vent it up. IWASHITAAnd what about waste material that, you know, at the end of the project or whatever -? MOYLAN:The only waste material we have is like wood, scrap wood. IWASHITA:So there€s no residual lacquer that needs to be disposed of or anything? MOYLAN:No. We usually use it all up; and our screens get thrown away. Basically ittakesalltheparticlesoutoftheair. IWASHITA:Thankyou. MOYLAN:You€rewelcome. SPRINGER:Commissioners, any other questions for the applicant? ALAMEDA:Madam Chair? SIRACUSA:Yes. SPRINGER:Commissioner Alameda. ALAMEDA:I just had a question now that you€ve had some time to revisit the recommendations made by the Department. Are you still okay with them? MOYLAN:Yes, I am. SPRINGER:Commissioner Siracusa? SIRACUSA:Yes. One of the recommendations was that only one employee shall be permitted in addition to household members. But I just read something, I can€t remember where it was, that just recently that you no longer have that employee. MOYLAN:No, he moved to the mainland. SIRACUSA:So, therefore should we be adjusting that recommendation? I would like to know what the Director thinks about it. It was his recommendation in there. So to just say, not mention anything about employees, or just say that there will be no employees, or did you have an intention of hiring someone else? 7EXHIBIT B MOYLAN:Well, in the background report it said that I was able to have one additional employee outside my family. SIRACUSA:So you will be looking for another employee? MOYLAN:Yes, right. SIRACUSA:Oh, so we don€t have to change that then, okay. SPRINGER:Thank you, Commissioner Siracusa. Any other questions for the applicant? Okay, Mr. Moylan, if you could, I think we have only three people signed up to testify so there should be sufficient room. Right now we have David Schreiber, Richard Gallagher, and Mya Pawu. Are you David? GALLAGHER:Richard Gallagher. SPRINGER:Is David Schreiber here? Thank you. Mya, you have already been sworn in. Mr. Gallagher. GALLAGHER:Excuse me? SPRINGER:We need to swear you in. Could you raise your right hand, please. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? TESTIFIERS:Yes,Ido. SPRINGER:Thankyou.Ifwecouldbeginwithyou.Couldyoustateyournameand address for the record, please. GALLAGHER:Richard Gallagher, PO Box 1012, Pahoa, Hawaii 96778. SPRINGER:Thank you. You may proceed. GALLAGHER:Okay. I have brought something to read. Hopefully, it gets to the point and pretty direct. To the Members of the Planning Commission: Aloha. My name is Richard Gallagher. I purchased land on May 10, 2003 in the Orchidland agricultural district. The first day on my land I awoke about 5:30 to what sounded like a fireworks factory had caught fire with a very thick burnt creosote fumes that are carried from the soils constantly to my property and a never ƒceasing nail gun which sounds like a constant pile driver. Immediately I went over to ask my neighbor what was going on so early. He then told me very arrogantly we build furniture here and if you don€t like it you better get a day job. I stated that this is not even an industrially zoned area. He then poked me very hard several times in the shoulder, obviously to provoke me into a fight, while saying it€s agriculturally zoned, how about I get out my mac nut ripper, that was my first meeting with him, and, oh, and you should have looked first before you bought the property. 8EXHIBIT B th In the next few days, weeks, months, and two years, May 10 to come when the constant mind- blowing noise would stop, my property would then be assaulted by nauseating, brain burning, stomach churning polyurethane, spray lacquers, thinners, glues, solvents and whatever other poisons they were using illegally with no filtration for, just till this day. I had no choice but to leave my beautiful property from 6 a.m. to 7 p.m. I was working, building rockwalls for several months; but after work I would come home and the noise and the fumes would be worse. It was as if he would see me come and would escalate the noise and poisonous fumes till 7, even until 8 p.m. I had tried not to call the authorities in. I honestly, truly wanted to work this out through peace and prayer. While working, building rockwalls, I was riding my bicycle, because my car had broke down, to and from work, when I was struck from behind by a woman in a rush to go home, crushing my bike and leaving my back and frame in severe constant pain. I am in the middle of a law suit and therapy,gettinginjectionsinmyspine.SoIhavebeentrappedonmypropertyforclosetoa year and a half now being constantly assaulted by my neighbor€s illegally zoned pollution factory. The police were called numerous, numerous times about the noise and poisonous fumes, and have been documented while he was under a cease and desist order. He was still running in triplicate, okay. The officers then informed me about the city planners office who handles situations such as these. I then talked to Mr. Usagawa who personally inspected the Moylan€s property weeks later. After inspecting the illegal factory, Pat Moylan was issued a cease and desist which he never, never, never ever never, every never, ever complied to in the least, least bit. It just angered him. And the noise and air pollution tripled. I then called the Clear Air Division, Noise Prevention, Department of Health. A man named Ed came from Clear Air, inspected the factory, smelled the fumes, saw the sprayers, the drums of polyurethane liquids, other poisons, and told me there was nothing that he could do because Mr. Moylan had already finished spaying. Whenever the police would come to Mr. Moylan€s residence, he would bring his family out, wife and seven, eight children, and then tell the officers I was threatening them with violence and how his family was devout Christians and they were good hardworking people. Then the officers would come back to me scowling with disgust as if I were bothering them. This went on, unfortunately, on and on. On two occasions the poisonous fumes were so thick I could not breathe properly and called ambulances. The ambulance came; and the EMT and police officers have it documented, they€ve smelled his fumes, he knows it. And my throat was sore, red, it€s all documented. I have several tons of police reports. They€ve smelled the fumes on my property when he had a cease and desist. I tried to work it out with mediation, and it€s nothing. Okay, I could not breathe properly, and I called the ambulance, and they came and had it documented. I had waited so long for the chance to state my case in front of the Planning Commission. I was scheduled on March 3, 2005 but it was very, unfortunately someone on the Planning Commission had passed on. So I waited on edge every day, hour after hour, being constantly st assaulted by fumes and noise pollution to this day. On April 1, before I had even gotten a chancetowakeup,approximately6:45,Mr.Moylanranhisfactoryfullblast,nailgun,circular saws, a spray booth. Immediately I gotup screaming to myself, I don€t believe this bull crap, prettyloud.AndthenIcalledthepolice.Uponarriving,Ishowedtheofficersmycopyofthe 9EXHIBIT B cease and desist given by Mr. Yuen in the Planning Department several months ago. And the officers went to ask to ask him whyhe wasrunning the factory illegally. And when the officers came back from talking with Mr. Moylan, they then told me to put my hands behindmy back; and I was arrested for violating a TRO he has against me. Mr. Moylan rents a space on his property to a man named Richard Heinz over there, who he had tell police I gave the finger and threatened with violence. I never did. I don€t want to go to jail. I cried, I begged, I pleaded that the Moylans and his supposed witness had fabricated lies to have me arrested. What I did not realize at the time was that Mr. Moylan had already gotten his notice to appear in front of the Planning Commission that day, so he had me locked up the last time I was supposed to be here. I was in jail. Thank you. I later found that I never received my notice and that it was sent to the owner I make the payments on my property to, after I specifically, several times, asked Mr. Usagawa or the Planning Department if he had my address on file. He said yes on several different times. I calledhimandIevenhadhimrepeatittome.SoonthethirdwhenIfoundoutMr.Moylanhad been approved, I blew a fuse screaming I don€t believe this bull crap on my property to myself. Mr. Moylan again called the police deliberately lying and having his illegal resident who lives in a carport, he has a tent inside a carport, and dumps his crap across he street. I walked my dogs one day, I smelled it, looked over, I was like, anyway -. So he deliberately had him fabricate stories and had me locked up once again, twice he had me put in jail. Where was I, okay, and, yes, God knows it was the farthest thing from the truth, having me arrested, having -. The second time, $500 bail. Also, my neighbor across from me, Scott Serafino who owns his property fully outright, had never received any notice of the Planning Commission meeting, which I thought very odd, being that he had written a four-page letter stating that he did not want this factory either. He has two children, he lives directly across from me. And the noise and fumes pour on his property, too. Okay, where was I, I€m sorry. He had never received any notice of the Planning Commission, which I thought very odd. And he did not ta, ta, ta. He did not, yeah, he didn€t want the factory operations at all. And just Friday, May 6, 2005 Mr. Moylan€s illegal tenant, Richard Heinz, fictitiously tried to, he called the police, I didn€t yell this time, and told them that I had threatened to burn down their house, threaten to do something, run over his, gee, I don€t know what he said. And the police came over and they just looked at me; and the way I looked at them, they just knew that I wasn€t, I didn€t do it, you know. They could just read between the lines that they€re trying to have me put in jail. They€ve been trying to drive me off my property since the day I moved in. He has resented me and maliciously even trying to drive me off my property. Okay, thank God the officers didn€t buy it in the least. I never ever, I never ever wanted any of this nightmare. I came here to farm my property and love life and praise God. I go to the New Hope, I go to church in New Hope Puna twice a week. I€m trying to have a good life, you know. I know in my heart they have been maliciously trying to drive me off my property. Enough is enough is enough. I beg you call, I beg you all, with almost tears in my eyes, please, please stop this. God Bless and thank you, Richard Gallagher. SPRINGER:Thank you, Mr. Gallagher. 10EXHIBIT B GALLAGHER:Thank you. SPRINGER:Commissioners, any questions for the testifier? SIRACUSA:I have a question for the Director. Mr. Gallagher was referring to a cease and desist order. Is this accurate? YUEN:I€m sorry, what€s the question? SIRACUSA:Mr. Gallagher said that you had issued a cease and desist order to Mr. Moylan. YUEN:Yes. SIRACUSA:Is that the case? YUEN:Yes. SIRACUSA:Okay, I just wanted confirmation there. YUEN:This was reported to us, Mr. Usagawa investigated it, determined that there was this operation that needed a special permit, did not have a special permit, he was cited. The form of the citation requires cease and desist. He did apply for the special permit; but there isaceaseanddesistontheviolationnotice,yes. SPRINGER:OtherCommissioners,questionseitherforthetestifierortheDirector? Commissioner Salavea. SALAVEA:Sir, in relation on the map behind you on the board, could you locate for us where your property is? GALLAGHER:Me, sir? SALAVEA:Yes. GALLAGHER:Sure. Okay, my property is right the, right behind the Moylan€s residence is my property right here. So the ocean breeze blows this way. So his fumes don€t even contact his house or anybody, really. They come right to my property and they sit in my ferns. I mean, even when he€s finished, it sits on the ferns all day; and it€s nasty, nasty, malicious stuff. It€s unbelievable. So, you know, I blew a fuse a few times, and screamed and hollered; and I got a TRO. And after that, I have, I have screamed to my dogs. If I raise my voice the slightest bit, he calls the cops and tries to have me locked up because he has this TRO. He has been trying to get me maliciously locked up so he can run his factory. He doesn€t care about anybody but him or his family. So, yeah, there€s my property and it just blows all over my property. And to this day, even while has supposedly filtration systems, I€ve noticed a reduction, but maybe by 40 percent. It still, still pours on my property. 11EXHIBIT B SPRINGER:Thank you, Mr. Gallagher. GALLAGHER:Thank you. SPRINGER:Commissioner Iwashita. IWASHITA:Mr. Gallagher, on the bigger chart in relation to where the shops is -. GALLAGHER:Over here? IWASHITA:No, on this bigger, you see where the shop is, where is your property? GALLAGHER:Oh, I see. IWASHITA:Where is your property? GALLAGHER:Okay, so, I€m right behind them. They have a boxed lot on the corner. (Off-the-record discussion with staff for orientation purposes.) Okay, there€s his driveway, and he has his illegal resident who lives in a carport. Like here€s the driveway, and he has another driveway right here. He has this guy live in a tent in a carport, dumps his feces and urine across the street next to my neighbors, which first day I moved in I noticedthat.Ithoughtitwasreallydisgusting.And,yeah,soIliverightabouthere.Mylot goes, we€re behind three lots. It€s a spaghetti lot, so it€s long, and it goes behind three properties like this. IWASHITA:Does your lot front Malia Street? GALLAGHER:No, no. I€m right behind Malia right now. DARROW:Just for clarification, Commissioner Iwashita, his lot does front Malia Street. He€s located right here. GALLAGHER:Oh, okay. I€m sorry. th DARROW:This is a corner lot on 37 and Malia Street. His lot runs and boundaries the applicant€s lot right in this area. IWASHITA:Sothatboundarynearesttowheretheshopistheadjoiningboundaryfor Mr. Gallagher€s lot? DARROW:Correct, yes. 12EXHIBIT B GALLAGHER:I understand now. Yeah, my property would be along here. So he€s about, I noticed from my property line, from here to the doorway, that€s where he has, he has like four warehouses connected, four or five. It€s scary. SPRINGER:Any other questions for the testifier? I have a question for the Planning Director. We€re once again having testimony before us that includes nuisance issues, which are basically bad relations in the neighborhood. Can you discuss these circumstances with us in the context of this application that€s before us? YUEN:Well, one of the criteria for a special permit is that it not have an unreasonable adverse effect on adjoining property owners. We€ve tried to cover that in the conditions of approval. It is a factor that the Commissioners should look at. SPRINGER:Commissioner Siracusa? SIRACUSA:Yes. I understand from the application that your whole family works in thecabinetshopwithyou. MOYLAN:Someofthemdo,notthewholefamily. SIRACUSA:Doanyofthechildrenworkinthecabinetshop? MOYLAN:Yes, they do. SIRACUSA:And so they are exposed to the fumes from these resins and lacquers? MOYLAN:No, none at all. SIRACUSA:You mean they€re not working in the shops when you€re spraying. MOYLAN:Yes, they are working in the shop when you spray; and you don€t smell anything. We€ve had the Health Department come out while we were spraying and take pictures. It came out, and he said it€s just fine. And then Richard has called his several times, you know, and he had to come out again. So he came three times. SIRACUSA:Okay, I am concerned about the health of your children because -. MOYLAN:Oh, absolutely. SIRACUSA:Because younger children are more susceptible to, you know, doses that would not harm an adult. MOYLAN:That€s right. SPRINGER:Follow up? 13EXHIBIT B SIRACUSA:Yeah. I was wondering if possibly the Condition No. 5 where it says the applicant shall install an air filtration system that we could add a little proviso on to the end of that. And I would like to know what the Director thinks about this, to provide it with some additional protection. And that addition to the sentence would be, sufficient to insure that there are no fugitive emissions.‚ Cause you could have an air filtration system that doesn€t work very well or, you know, that doesn€t work as thoroughly as it might. GALLAGHER:It doesn€t, I€ll tell you. SPRINGER:Mr. Director. YUEN:I don€t know about no emissions. I don€t know if that€s achievable. GALLAGHER:Excuse me. SPRINGER:Mr. Gallagher. GALLAGHER:I wanted to bring up, I think I already said it, but he saw fumes, whenever hesawsthe,I€veworkedconstructionallmylife,Iknowthatthere€screosoteinthewood.And it just pours, besides the fumes of the lacquer spray and all that, the creosote I see the smoke, it , comes on. It€s a haze, a haze. It just, my cabin that I built is about right lined up with it. Unfortunately I had no idea he was there; and so I like was kind of almost through, I had people from my church come and help me build my place, and it€s like, hey, what€s going over, we didn€t even realize what was going on at first, you know. So -. SPRINGER:Thank you, Mr. Gallagher. Commissioner Siracusa, any follow up to the Director€s answer to your question? SIRACUSA:Well, he€s only objecting to the word no.‚ Could you suggest then some other wording that might make that a little bit stronger, you know, that the air filtration should be -. It€s one thing to install it, for example, and it€s another thing to use it. It€s another thing to use it when you€re spraying. I mean, so I€d like to see us maybe tighten that up a bit with some wording. YUEN:I don€t have anything. You know, we can say use.‚ I would consider use‚ to be included, I mean, to be understood within the condition. SALAVEA:Madam Chair? SPRINGER:Mr. Director? Commissioner Salavea, before I call on you, just some clarification on whether it€s the installation and use of the air filtration system, or the hours of operations, or the decibel levels, sound levels during operation of the equipment, how does enforcement occur, and how would complaints of a nuisance by a neighbor be handled? YUEN:If the permit is granted, some of the conditions are relatively clear cut, like the hours of operation. If they operate at different times, then the neighborhood should call in a complaint to us; and our investigator will look into it. That€s about as far as I can promise that. 14EXHIBIT B The noise level, we do have a sound meter in the Department. The noise level is 55 decibels in the day time measured at the property line, that€s the residential noise level. So we could check that out. I€m just, I had a problem with this question about the filtration system because I€m not familiar enough with filtration systems to give any more definite specifications on what we would want or what we would expected on that. SPRINGER:What are the consequences for failure to comply with the conditions? YUEN:Potentially revocation of the permit. SPRINGER:Thank you. Commissioner Salavea, thank you for waiting. SALAVEA:Thankyou,Chairperson.Thisisfortheapplicant,thefiltrationsystem,is there any Department of Health standards that you have to follow, or is it monitored? Is there any objective measure by an agency to insure that the filtration system is functioning at a level to mitigate, you know, the impact to your neighbors? MOYLAN:Well, I€ve talked to Ed and he says they will go to that extent if it gets there. If, like if our neighbor keeps complaining after we install all our filtration systems, they will go over there and actually monitor the air while we€re doing our finishing. So they will do that test; and I have no problem with that at all. SALAVEA:And currently is the filtration systems you have totally installed, completed, or are you adding components? MOYLAN:For our finish room, we have installed the filtration system for the finish room. We haven€t installed any filtration system for the dust which, I think, is what he was referring to earlier, which after granted this, actually my loan is already ready. I thought I had the permit already. We€ll all be enclosed, right now it€s not totally enclosed. We€ve been there for 14 years doing cabinets, never ever once had a complaint. And I know he lives right next door -. GALLAGHER:I live there? I guess not. MOYLAN:And I understand his concerns. And when I was told about the finish problem, we installed the thing to filter that out; and it does filter it out. Anybody, Ed has come and you cannot even smell it, like walk around the property and you can€t. Like I was trying to tell her you cannot make it while we€re working at all, it sucks everything in -. SIRACUSA:I€m wondering not only about the fumes but about particulate matter. MOYLAN:The particulate matter is what it takes out, yeah. The filters catch it all. You can see it just like a vacuum. 15EXHIBIT B SIRACUSA:Oh, so they don€t take out the fumes? The filters don€t take out the fumes? MOYLAN:No, the fumes get vented up high in the air. GALLAGHER:It comes to my property -. MOYLAN:So all, it sucks and it goes up. GALLAGHER:It comes right into my property with the ocean breeze, exactly. SPRINGER:Mr. Gallagher -. SIRACUSA:Excuse me. GALLAGHER:I€m sorry, I€m sorry. SPRINGER:Thank you. SIRACUSA:And how high up does it go, the chimney or whatever you call it goes? MOYLAN:At present it€s 30 feet. So, and there is no particles to come down and emit the fumes. So the fumes should rise to the atmosphere. SPRINGER:Commissioner Salavea. SALAVEA:For the applicant, Mr. Moylan, is this the vent that you€re referring to in terms of the fumes? MOYLAN:Yes, it is. SALAVEA:So this extends 30 feet into the -. MOYLAN:That€s right. SALAVEA:Okay, thank you. GALLAGHER:May I ask one question. SPRINGER:Mr. Gallagher. GALLAGHER:How far is he supposed to have that from my property line? Cause it€s about from hereto the door. It is, maybe 15, 20 feet. SPRINGER:Thank you. We€ll ask the Director. Mr. Director, is there a prescribed distance? 16EXHIBIT B YUEN:Right now there isn€t a condition on that. The cabinet shop according to our site plan is 52 feet from the property boundary. GALLAGHER:It€s not. He should put it in front of his house. SPRINGER:And that€s according to an on-site inspection that was made? YUEN:Mr. Darrow? DARROW:At the time of the inspection, I didn€t actually measure the distance to the property line. We€re relying on the applicant€s representation on the site plan. It was definitely out of the setback, but that would be the concern of the Planning Department. SPRINGER:Thank you both. Commissioner Siracusa. SIRACUSA:Yes. Mr. Torigoe has just handed me some possible wording that was addressingmyconcern;andI€dliketoshareitwithyouall.Applicantsshallinstallanair filtration system to control dust and fugitive emissions from the shop sufficient to meet all applicable State and Federal air quality standards, and which shall be used whenever dust or emissions may be generated. SPRINGER:Thank you. Commissioners, we€ve heard from language from Commissioner Siracusa that she€s suggesting be inserted at Condition No. 5. SIRACUSA:Or actually in replacement of what is now there for -. SPRINGER:To replace what is now Condition No. 5. Mr. Torigoe, do we need, how should we proceed with this recommendation from our colleague? TORIGOE:Well, first of all, let me just say that this was just something that I suggested for discussion. As the Director has stated, I don€t have any technical knowledge as to, you know, how best word that. And, I guess, I suppose that€s another option, is if you really wanted to address this properly, you could also continue the matter to research that and construct a condition which really would address it. But, in any case, if you wanted to add the condition, then that would probably be done at the point that you€re making a motion. SPRINGER:Thank you. Mr. Director, do you have any comments of Mr. Torigoe€s suggestion of further research? TORIGOE:Well, the way he wrote the condition is a lot better than we did so I€m happy with his wording. It€s up to the Commission whether they€re ready to go ahead with this today or want some more information. SPRINGER:Thank you. Commissioner Salavea? SALAVEA:For the applicant, Mr. Moylan, what you heard regarding the recommendation made by Commissioner Siracusa, what is your input regarding that change? 17EXHIBIT B MOYLAN:Could I hear it again? I€m sorry. TORIGOE:Applicant shall install an air filtration system to control dust and/or fugitive emissions from the shop sufficient to meet all applicable State and Federal air quality standards and which shall be used whenever dust or emissions may be generated. MOYLAN:Okay, yeah, I would have no problem with that. SALAVEA:Okay, thank you. ALAMEDA:Madam Chair? SPRINGER:Commissioner Alameda. ALAMEDA:I have no problem with that condition as well. SPRINGER:Good. Does anybody have a problem? SIRACUSA:Can we do a motion to insert that or should we wait till a later in -? ALAMEDA:Wait, wait. SPRINGER:I think Mr. Torigoe said that that would come at the time of a motion. SIRACUSA:Okay. Then I have another question of applicant. Okay, I understand that where the current cabinet shop is now, that€s a temporary unpermitted structure, and you plan to build a permanent structure. I€m wondering if you had considered, instead of putting it in the samefootprintastheoldoneofputtingitmorecentralizedintotheparcel,suchasontheother side of the existing residence -? GALLAGHER:Thank you, exactly. SIRACUSA:Where there would be, and possibly aligning it differently to minimize the distance from any of the parcel€s boundaries? GALLAGHER:Thank you. MOYLAN:In the back there we have big beautiful trees that cover, we can€t even see each other€s properties. So, you know, in the background report we need to have like foliage to block where the shop is. And all over, all around there we cannot see our neighbors. So it€s like th the perfect place for the shop there. And out in the front on 37 it€s all open. It€s like our, we haveasoccerfieldouttheresoit€sprettywideopen. GALLAGHER:Yeah,hehasarecreationareawherehecanenjoyhimselfandputsall the poison in front of -. 18EXHIBIT B SPRINGER:Mr. Gallagher, please. Do you have any other comments, Mr. Moylan? Commissioner Siracusa, any follow up? SIRACUSA:No. Thank you. SPRINGER:Commissioner Salavea. SALAVEA:For Mr. Moylan, regarding the noise, the decibels, did the Department of Health come out and measure the levels while you were in, you know, full regular operation? MOYLAN:No, they haven€t yet. SALAVEA:They haven€t. YUEN:IfIcouldcommentonthat.TheDepartmentofHealthwill,inan agricultural area the noise, the acceptable noise level is quite high. It€s 70 dba in the daytime and 70 dba at night. Now that€s just numbers, it doesn€t mean any to -. Believe me, that is loud. And so on our side in recommending approval of a non-agricultural special permit, we would want to hold it in an area where there, there are people who live there, they live there. It€s not just a farming area even though it€s in the agricultural district. There are a lot of people who live there; and for most people who live there, the primary interest is a residential. So we would have a stricter standard. Now if we put this standard in there, the Department of Health is not going to enforce that. My inspector would have to, if there was a complaint that the noise is too loud, my inspector would have to go out and check on the noise level. PAWU:Thank you, Mr. Director. ALAMEDA:And then along those same lines, Madam Chair, what the Director is saying, that with any neighbor, the noise, say if this wasn€t even going through a special permit process, if it went above 70 dba then they would go through the other channels. They wouldn€t call the Department to respond, correct, they would call the cops or something? YUEN:The Department of Health€s noise enforcement is, I have to say is pretty spotty; and they don€t, especially for intermittent types of events, they don€t really get out and enforce it that much. So the other level of enforcement on noise is nuisances. And so, for example, if somebody has a really loud party, they have a band that practices every day, you can call the cops, and the cops will come out and they can cite that person for a nuisance. So that€s your other recourse on something like that. But it has got to be pretty loud for the police to feel that it€s something that they€re going to get into. ALAMEDA:Thank you. SPRINGER:You€re welcome. Commissioners, any other questions for this testifier? And we€re still on Mr. Gallagher. SIRACUSA:Yes. 19EXHIBIT B SPRINGER:Commissioner Siracusa. SIRACUSA:And this has to do with noise. I€m wondering if in the new plans for your cabinet shop you have worked up any sort of acoustic materials to help reduce the noise coming from the shop? MOYLAN:I really haven€t got to that phase yet; but in the background, it€s a requirement that I have to do, is to sound proof the shop; and I€ll gladly do that. SIRACUSA:It just says that your sound level shall follow the Health Department€s rules, it doesn€t, in the recommendations -. Was there something in the background? WATANABE:The rules on this are stricter than the Health Department. SIRACUSA:Yeah,Irealizethat.Iwasjustwonderingifwe€releavingitwidenopen for this compliance, or if we€re going to request that he install acoustic tile, for example, or acoustical materials on the walls to make sure that the compliance happens. SPRINGER:Director Yuen, do you have any comments on Commissioner Siracusa€s concern? YUEN:Well, in actually thinking about this, it€s not going to be a hard to enforce the sound as I, when I started thinking about it. Because we could simply ask him to run his saws, and do what he does, and measure the sound level at the property line; and if it€s over 55 dba then he€s going to be in violation, he€s going to have to do something else to sound proof. He is going to have to do something more than what he has done. So I believe that we would be able to enforce that specific, the specific sound condition without getting into a lot of description about what he should do. He is going to have to do it to meet that standard. SPRINGER:Commissioner Salavea? SALAVEA:Thank you, Chair. Mr. Moylan, under the conditions set forth in the recommendation, No. 4 states that all operations and materials have to be within a fully enclosed building screened from public view. Just for clarification what will you be considering fully enclosed? Will it be as existing with, it looks like some openings with plastic covering over it, or will it be a single wall, double wall? MOYLAN:Okay. What you€re seeing here was existing when we purchased the place, and never had a problem yet; and now we have a neighbor that€s very close and the noise is bothering him. And now that we€re going, if we do receive the permit, that€s going to be gone, what you have seen in the pictures; and we€re going to do a double wall with insulation with very few windows on that outer side towards his property. All the openings will be, any big openings that we need to access will be on our side. So personally I know as of right now, even with that, the decibels aren€t, if you stand out on my property line, there€s no problem with that. The one consideration was the fumes, and we have installed the filtration system. Cause that was, you know, he brought that up; and we did, and I investigated. I have a neighbor down the 20EXHIBIT B road who used to work in a spray booth; and he told me, he got me on the, hooked me up with all those filtrations. And they€re working very well. SPRINGER:Thank you. Commissioner Salavea, follow up? SALAVEA:For my understanding, clarification, you€ll be bulldozing that, well, getting rid of the existing and building a new structure, double wall, with the side towards your neighbor, Mr., I forgot his name -? MOYLAN:Gallagher. SALAVEA:Gallagher€s lot would be enclosed, and try to mitigate the sound impact upon his land? MOYLAN:Absolutely. SPRINGER:Mr.Gallagher,youwanttomakeanothercomment? GALLAGHER:Yeah.It€slikeMs.Siracusasaid,didIgetitright?Ihope.Itwouldbeso much nicer if he can move it. I mean, I don€t want the thing there period, period. But I can see that it€s going to be put there. And could he move it? Yeah, he has plenty, he has got a 2-acre lot and he has albesia trees, he said it€s pretty trees. He has got a bunch of albezias he put between our property; and so I€ve got to weed out albezias all day, you know, junk albezias. And if he could move it, you know. Like I said he has got a big soccer field, like an acre of soccer field on his front, you know. But he has never thought of me, ever, since the day I moved into that place. You€ve never given a damn about my health. And I€m filing a civil law suit against him. I have an attorney. He was doing this, he was running this while under cease and desist. I hope you know that. And my lawyer, I can€t wait to get to, in a court room. SPRINGER:Mr. Gallagher, thank you. That -. GALLAGHER:I€m sorry. It€s two years. I€m, really, this is every day, six days a week, six days a week from 6 in the morning till 6 at night. It€s like -. SPRINGER:And your concerns are indeed part of this record. GALLAGHER:I€m sorry. I€m leading off -. SPRINGER:Are there any questions for Mr. Gallagher? We still have to go on to our next member of the public who has been waiting patiently. Are there any more questions for Mr. Gallagher? Thank you. Thank you for bearing with us. Mr. Pawu. PAWU:Thank you, Madam Commissioner and Commission. I am going to be testifying only on behalf of Orchidland Community Association. And our sole interest in this matter is that any nonconforming, nonresidential use has a different maintenance fee. And I believe during our last discussion Mr. Moylan, the applicant, agreed to pay our fee for which his type of usage will be five times the fee of a normal residence, which is currently $70 a year. So 21EXHIBIT B his would be about $350 a year. And as long as that was met, the Association does not get involve between neighbors. That€s not our position, because we represent all of them. We do have to represent the financial interest of our community. SPRINGER:Thank you. And, Mr. Moylan, do you agree to that? MOYLAN:Yes, yes, I agree. SPRINGER:Thank you. Commissioners, any questions for this testifier? Thank you, Mr. Pawu. GALLAGHER:Excuse, may I ask one more question, please. I€m sorry -. SPRINGER:Yes. GALLAGHER:I had a very important question I forgot to ask. Does this affect my propertyvalue? SPRINGER:Mr.Director,therehasbeenaquestionfromMr.Gallagherregarding property values. YUEN:When people talk about property values, I think they use the word in two senses. Sometimes they mean the things that make it nice to have a place, like clean air, quiet, lack of traffic, those kinds of things. The second sense that they mean is the financial value of the property. I think you€re in a better position to answer the first question. And as far as the second question of the financial value of that property, I can€t answer that either. GALLAGHER:But I mean, logistically, does it affect my property value saying, as far as a realtor is concern, if you know, they put my property up for sale having this furniture factory there? If I want to sell it somebody is going to come and be like, as soon as they investigate and find out there€s this poison factory next door never ending, I mean -? SPRINGER:Mr. Director, maybe you can discuss this generally in terms of perceived property values as Mr. Gallagher is framing his question. GALLAGHER:I don€t see how he should be allowed to do this. This is really, it€s a nightmare. SPRINGER:Thank you, Mr. Gallagher. YUEN:I think he is making an argument or making a point. He€s perfectly entitled to do that. I don€t want to debate the question or debate the issue. SPRINGER:Thank you. Commissioners, any questions for Mr. Gallagher who€s back at our table? Okay, thank you, Mr. Gallagher. GALLAGHER:Sorry, I forgot that. Thank you. 22EXHIBIT B SPRINGER:You€re welcome. ALAMEDA:Madam Chair? SPRINGER: Commissioner Alameda. ALAMEDA:If there€s no objection by my fellow Commissioners,I€d like to make a motion. IWASHITA:I have one follow-up question. Sorry. SPRINGER:Commissioner Iwashita. IWASHITA:Mr. Moylan, I guess, my view or what I€d likeyou to clarify is your reasons why -. You know, you made it clear you€re going to tear downthe existing structure and you€re going to start all overagain and build a new building. Would you consider, I wondered if th you€d consider putting it nearer to 37 Street than, you know, to the boundary. MOYLAN:Actually, that€s a playground for my children. It€s hard and it would, you know. According to what I need to do is to put foliage all around the shop so it can€t be seen; and as of right now you can€t see much of it at all. So, and the front yard is or our frontarea has nothing but a few macadamia nut trees on the perimeter. IWASHITA:So the answer is no? MOYLAN:Well,ifit came down to if that was the only way, I would, yeah. ALAMEDA:Can I ask a follow up to that? SPRINGER:Surely, Commissioner Alameda. ALAMEDA:Thank you, Madam Chair. And as a follow up to that, what would you be sacrificing if, in your own words, to move itto where Commissioner Iwashita mentioned? MOYLAN:Like I say, it€s a flat ground out there and that€s where we, you know, my children, we play soccer, I€m a soccer coach. We do a lot of soccer out there. And it€s the only area, back there it€s, you know, very big eucalyptus trees and the ground is very rugged, so there is no area as far as that goes. And, I€m sorry, it also would look really, I mean anybody driving by, there it is, cause, you know -. SPRINGER:Commissioners, we are done with, I think, making query of the public testifiers and we€re in deliberation amongst ourselves now. Is there anything more? SIRACUSA:IjustwanttoaskCommissionerAlamedaifhe€sgettingreadytomake that motion if he would be willing to include Mr. Torigoe€s wording for Condition No. 5, or if he hadthatinmind. 23EXHIBIT B ALAMEDA:Just to answer that, Madam Chair, I was just going to say in addition to Mr. Torigoe€s wording of Condition No. 5. That would be my statement rather than, you wanted me to state the actual wording itself or -? SIRACUSA:No, I don€t think that€s necessary unless -. I just didn€t want it to fall through the cracks. ALAMEDA:Okay, that€s fine. SPRINGER:Commissioner Alameda? ALAMEDA:Sure. I€d like to make a motion with regard to Patrick and Theresa Moylan€s Special Permit 04-016 to allow the establishment of a cabinet shop on 2 acres of land situated in the State Land Use Agricultural District, that the recommendations made by the Department be approved and, also, to incorporate Mr. Torigoe€s wording of Condition No. 5. SPRINGER:Thank you. Is there a second? WATANABE:Second. SPRINGER:It has been moved by Commissioner Alameda and seconded by CommissionerWatanabethatSpecialPermit04-016beapproved,includingtheamendmentto Condition No. 5 as stated by Mr. Torigoe. Any discussion? Seeing none, Mr. Darrow, roll call. DARROW:Thank you, Madam Chair. Commissioner Alameda? ALAMEDA:Aye. DARROW:Commissioner Watanabe? WATANABE:Aye. DARROW:Commissioner Iwashita? IWASHITA:Nay. DARROW:Commissioner Salavea? SALAVEA:Aye. DARROW:Commissioner Siracusa? SIRACUSA:Aye. DARROW:And Madam Chair? 24EXHIBIT B SPRINGER:Yes. DARROW:The motion passes five to one. SPRINGER:Thank you. You€ll be informed in writing of today€s decision. MOYLAN:Thank you. The discussion ended at 4:28 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 25EXHIBIT B