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HomeMy WebLinkAbout2010-05-21 TALIIBEACH LEEWARD PLANNING COMMISSION COUNTY OF HAWAIÒI HEARING TRANSCRIPT MAY 21, 2010 ALI‘I BEACH ESTATES III A regularly advertised hearing on the application of CONDOMINIUM LOT OWNERS (SMA 314) was called to order at 9:55 a.m. in the King Kamehameha's Kona Beach Hotel, Ballroom I, 75-5660 Palani Road, with Chairman Frederic Housel presiding. COMMISSIONERS PRESENT: Frederic Housel, Brandi Beaudet, Lani Bowman, Geraldine Giffin and Richard Nelson ABSENT AND EXCUSED: Wayne Iokepa STAFF PRESENT: Brandon Gonzalez (Deputy Corporation Counsel), BJ Leithead Todd (Planning Director), Daryn Arai (Planning Program Manager) and Jeff Darrow (Staff Planner) And six people from the public in attendance. APPLICANTS: ALI‘I BEACH ESTATES III CONDOMINIUM LOT OWNERS (SMA 314) Amendment to Condition Nos. 2 (water commitment), 3 (final plan approval), 4 (construction), and 10 (submission of restrictive covenants) of Special Management Area Use Permit No. 314, which allowed the construction of six single-family residential units and related improvements. The property is located approximately 450 feet southeast (Keauhou side) of Kahakai Elementary stnd School, Hlualoa 1 and 2, North Kona, HawaiÒi, TMK: 7-6-17:6. HOUSEL: WeÓll proceed to our second applicant, which is AliÒi Beach Estates III Condominium Lot Owners, and this is an SMA amendment, amendment of Conditions 2, 3 Î I wonÓt read them all Î 4 and 10. Mr. Darrow, would you like to present this? DARROW: Thank you, Mr. Chairman. If I could direct your attention to our presentation on the wall. Again, our next applicant is the AliÒi Beach Estates III Condominium Lot Owners. They are requesting amendments of conditions of SMA Use Permit No. 314. The area of this application is within the North Kona District of HawaiÒi. More specifically, we are looking in the area of AliÒi Drive that runs in a north-south direction on the left side of your map. And we have Royal Poinciana Drive that runs in a mauka-makai direction, or east-west. We also show the Kahakai School Access Road that provides access to Kahakai Elementary School. The subject property is identified with a black outline. And the color identifying the property is yellow, which indicates Single-Family Residential 7,500 square feet. This is an aerial photo. This was taken some time ago probably about in 2006, so currently there are homes in this general area. But you can see with the overall general view that this is mainly a single-family residential area. There are two homes currently identified in these locations on the map that youÓll see in the update in the presentation; we have Unit E as well as Unit C identified in these areas. 1 EXHIBIT B The applicants have requested the following amendments: They are extension to Condition 2, which required that the water commitment payment be submitted within a certain time frame; they are asking for a one-year time extension to secure Final Plan Approval for the remaining houses, and additionally, they are requesting that the last sentence on Condition 3, which restricts variances, be deleted; they are requesting a one-year time extension to Condition 4, which gives a time frame to commence construction and complete construction after they receive Plan Approval; and, they are requesting a 90-day time extension for Condition No. 10 to submit their restrictive covenants to the Planning Department and the Office of Corporation Counsel. This was the original site plan that was submitted in 1991 when approved. This identifies the original request of six single-fam. More recently, this is the new development plan that has been submitted by the appli the different units. They brought together Units A and B, we have Units C, D, E and F, and then G is set aside mainly for the future road widening setback area. Colors on the map indicate either future road widening setbacks or landscaping buffers, buildable area, so you have a lot going on on this particular map. On the right side of the map we have the Kahakai School Access Road, and on the top of the map we have Stardust Lane, and on the left side we have Hlualoa Beach Road. The access is mainly from Stardust, and we do have Unit C accessing from Hlualoa Beach Road. This is some site photos of the area. This shows what they call Stardust Lane, which is their driveway access. We show Unit C in the background. This shows U driveway access with Unit C on the right. This is a picture of Stardust Lane looking mauka Î shows that this condition has been met that Stardust Lane be paved from Kahakai Access down to AliÒi Drive. And again, looking down towards AliÒi Drive, we have Hlualoa Road that runs in a north-south direction in this particular area. On your left would be the access to the property. And then lastly, this is Hlualoa Beach Road looking towards the south and we see the driveway access for Unit C. The Planning Department is recommending approval of these time e additional conditions and amended conditions. If I can briefly speak to those. Daryn, if you -. Thank you. The Planning Department has submitted a revised set of conditions identified in yellow. The difference between the revision and the ones that were submitted originally to the Planning Commission are just several items. One of them, or two of these items are in Condition No. 3, and that is that in response to the comment letter from Department of Public Works we increased the future road-widening setback along Kahakai School Access Road from 50 to 52 feet. And additionally, weÓve added the sentence, Ðexcept for ÒUnit CÓ and ÒUnit EÓ identified on the New Development Plan,Ñ allowing the applicant to be able to apply for variances for the existing structures that are located on site; at the time of looking at the new development plan there are some issues that need to be dealt with as far as setback variances for the existing structures. Lastly, weÓve added two conditions based on a request from Department of Public Works to add in Conditions 10 and 11 having to do with sound attenuation for the proposed Kahului to Keauhou Parkway, or AliÒi Highway. 2 EXHIBIT B Also, if I may, IÓd like to just add the phrase, ÐUnit C,Ñ to our recommendation on Page 2 so that itÓs consistent with our rec, and this would be Î letÓs see. GIFFIN: Jeff, where is that? DARROW: This is the third paragraph on Page 2, on the bottom line it says, ÐThe Planning Director will allow setback variances for,Ñ Unit C and, ÐÒUnit EÓ È,Ñ and so weÓd just like to be consistent with our recommendation. BOWMAN: Is this the dark orange or the -. DARROW: Correct, yes. BOWMAN: Okay, thanks. DARROW: Thank you. HOUSEL: Now, Jeff, those are the two homes that are currently built, is that correct? DARROW: That would be Unit C and Unit E, and they are identified on there. ItÓs a little difficult to see, but they are actually identified on the map. HOUSEL: Okay. DARROW: Are there any questions? BOWMAN: Units A and B, is that, are they two separate lots? DARROW: No, they are going to be combined into one. BOWMAN: Oh, thatÓs right. So that will be, thatÓs right, there will be five instead of six. DARROW: Correct. BOWMAN: Thank you. HOUSEL: Now, access to each of the units is from Stardust Lane? DARROW: At this point youÓll see in this general location that driveway access that we have shown a picture of right here, and basically that provides access, itÓs my understanding, to Units A, B, F, E and D. I believe C can also access there, but they also do have a driveway access off Hlualoa Beach Road. If IÓm incorrect, if the applicant could, or the applicantÓs representative could correct me on that. HOUSEL: Now, Stardust Lane is a private road, is that correct? 3 EXHIBIT B DARROW: It has been, that information has been given to us from Department of Public Works that it is a private road. HOUSEL: Is Hlualoa, the one on the left Î Hlualoa Lane, Hlualoa Beach Î is that public or private? DARROW: Private. HOUSEL: ThatÓs private also. DARROW: Yes. NELSON: Jeff, could you explain the access to D? DARROW: To D? NELSON: D. Is that D? Yeah, D. DARROW: Yeah, right here. That would be through the driveway access that they have. NELSON: So theyÓre crossing Unit E, yeah? DARROW: Yes, they would be crossing Unit E. NELSON: Okay, thank you. BOWMAN: Could you show us the picture of the pole in the middle of Stardust Lane again? Thank you. DARROW: There you go. So this is the pole she is referring to. BOWMAN: And that goes to Hlualoa Road? WhatÓs the crossroad there? DARROW: IÓm standing right in front of the driveway access to the subject property, which is right here on the right, looking mauka, and this is Kahakai School Access Road. So that, I mean we were a little surprised to come up on that, too, but -. BOWMAN: Do they use that? DARROW: Yes. BOWMAN: So they just go around the pole. DARROW: Yeah. BOWMAN: Thank you. 4 EXHIBIT B HOUSEL: Does that connect with Kahakai Road? DARROW: ItÓs right there. ThatÓs right, I mean itÓs not in the middle of the road, I mean itÓs in the middle of Stardust, but it appears to be -. I donÓt know how that happened; unfortunately, itÓs there on the ground. HOUSEL: Did I read in here that the intent is not to connect Stardust with Kahakai Road? DARROW: Well, Department of Public Works actually had stated in their memo Î letÓs pull that up real fast, I believe it was Exhibit 6, no, IÓm sorry, 5, letÓs see Î No. 2 on the second page, they are saying, ÐVehicular access from Stardust Lane to future Kahului to Keauhou Parkway È is under consideration.Ñ So they are considering it. HOUSEL: So they may. Okay, but currently itÓs not planned. DARROW: Well, at this time the only thing thatÓs there is Kahakai School Access Road, which provides access from Royal Poinciana to Kahakai Elementary School. That does connect. So itÓs connected right now. So thatÓs, youÓll notice that you have received a letter from Debera First, and her main concern is the traffic along this road, and people are instead of going on, you know, coming from Royal Poinciana, to avoid the bumps Î IÓm sorry, IÓm going all over the place there Î to avoid the bumps, they are coming up Stardust Lane and going into there, so that they donÓt have to go over the speed bumps that are placed on Royal Poinciana; so she was asking if something could be done in regards to that. HOUSEL: I understand that. Right. If thatÓs a public road and there is no intended access at least for now, and there is also a pole in the middle of the road, I mean that seems like a problem to me. DARROW: Yeah, but at this time, again, Department of Public Works identifies these roads as private. HOUSEL: What is Department of Public WorksÓ recommendation on this? Do they want to change this, or just -? DARROW: In regards to -? HOUSEL: Well, as far as whether or not it should be, there should be public access to it. DARROW: I did speak with Ki. He asked to apologize; unfortunately, he is under the weather today. But we did speak briefly about this problem with these roads being private, and itÓs something that they are looking into right now. Apparently, it was based on a court decision in 1914, so they are trying to see what that court decision actually said in regards to the ownership of these roads and if the County is liable for improvements or upkeep or even safety improvements to these roads. So Debera First, who was the lady who submitted this, has a meeting with Warren Lee on Tuesday to discuss this matter. 5 EXHIBIT B HOUSEL: Okay. BOWMAN: Just one more question, sorry. IÓm looking at Public WorksÓ No. 4. Could you show the map of the subdivision again, the proposed? So, show me Kahakai Road again so itÓs there. DARROW: That would be on the right side here Î Kahakai. BOWMAN: And Stardust Lane is -? DARROW: ThatÓs on the upper portion of the map. BOWMAN: Okay, so their request, right, is that not be from Kahakai, no access from Kahakai to Units D, F, A, right, and those are the ones that are not built. DARROW: Correct, well, at this time if youÓll notice this yellow color on the map, thatÓs identified as a landscaping easement as well as a no-vehicular access easement, and thatÓs identified in this area on the map, so it also, you know, they are stating that access is not to be from Kahakai School Access Road to the lots on the subdivision. BOWMAN: Pardon my ignorance, but where do Units E and C, how do they get in to their existing -? DARROW: Stardust Lane is on the top. You have the driveway access that we showed right here on the ground. So this is from Stardust Lane. IÓm actually standing on Stardust Lane, looking from this way -. BOWMAN: So that goes to E -. DARROW: So thatÓs the access. So a majority of the lots, if not all, can access from this point. But again -. BOWMAN: Is C accessed from there Î IÓm sorry Î also C is access DARROW: C is not accessed from there; it is accessed from Hlualoa Beach Road. And I can show you that access point there Î thatÓs right here. So this is Hlualoa Beach Road. BOWMAN: Thank you. HOUSEL: Mr. Darrow, does Stardust Lane go all the way to AliÒi Drive? DARROW: Correct. So if we look, this is, again, the subject property is on the left side. This is going all the way to AliÒi and it connects to AliÒi Drive. HOUSEL: Okay, so that would offer a shortcut to the school. 6 EXHIBIT B DARROW: Yes, with no speed bumps. HOUSEL: Right. GIFFIN: Jeff, what kind of surface is that? DARROW: This is asphalt. GIFFIN: It is? DARROW: Yes. GIFFIN: Okay. HOUSEL: Any other questions of the staff here? Okay. Would the applicant or representative please come forward? Good morning. Could you please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Planning Commission? VITOUSEK: Yes, I do. HOUSEL: Thank you. Would you state your name and address? VITOUSEK: IÓm Randy Vitousek and my address is 75-170 Huallai Road, Kailua-Kona. HOUSEL: Have you received all the background information and everything? VITOUSEK: Yes, I believe I have. HOUSEL: Okay. Would you like to go ahead and proceed then? VITOUSEK: Sure, sure, just briefly. The reason we are here is that the history of this property is really pretty complex. I was asked by Judge Ibarra of the Third Circuit Court; I was appointed specifically to try to get the permitting completed on this project. What happened was, the original developer was Clayton Manning. He purchased the property from the Loo family, and then he got the SMA Permit and then he got a tentative CPR approval, and then he sold six lots to six different families. And then he didnÓt pay Mrs. Loo unde foreclosed. And so there was a situation where the six people who had paid for what they thought were valid CPR units, were told that they had nothing. And so it all got thrown into court Î some of our counsel here were representing some of the pr the lot owners Î and the court brought the parties together, and they were able to fashion a solution where the six owners were able to retain their interests; in other words it wasnÓt foreclosed. But because the SMA Permit had elapsed and because the CPR was never finalized, then we had to come forward and try to complete that process. So, you know, the litigation took a lot of time, and so by the time that I got appointed and I came in to talk to Chris Yuen about how we were going to get this permitted, Chris pointed out that the County had passed a new ordinance regulating CPRÓs, and 7 EXHIBIT B that they now had to meet the minimum lot size requirements for subdivision; in other words, even if itÓs a CPR, it has to meet the minimum lot size. And for this area, itÓs 7,500 square feet. And so we have the certain size and we have six units, and six 7,500-square foot units donÓt fit in that size. So we went into a process of trying to redesign it and trying to work with the owners. And the solution Î and fortunately we were able to reach that solution Î was that one of the owners sold to one of the other owners. And so thatÓs how we created A/B. And so Mr. MatsukawaÓs client and Mr. KaapuÓs clients were able to reach an agreement under which they were able to combine, reduce the number of units, and then we complied, we felt, with the 7,500- square foot minimum requirement. So please understand this is not a situation where a developer is trying to ask for favors, trying to cut corners, or trying to ask you to amend an old permit for an economic advantage; this is a situation where we are trying to preserve for the owners the values that they already paid for and that they were stood to lose, if we werenÓt able to reach this kind of a solution. So, you know, weÓve gotten an absolutely tremendous amount of cooperation from the Planning Department, from Planning Director Chris Yuen, from Planning Director Bobby Jean Leithead Todd and from the staff, because they realize this is a difficult situation. The court is still involved; the court still holds status conferences with all counsel about every sixty to ninety days to see how we are doing on getting this process completed. And because the two unit holders were able to make this agreement, we can finally move forward. So against that backdrop, the only Î weÓve read the conditions, the conditions are great Î the only concern we have about the conditions is the limitation on the ability to apply for variances. And the reason we have that concern is because we found that as we go through this process, issues come up that we have to try to deal with. Now, you know, needed some variances for Units C and E where the homes were built, because when we reconfigured the lots, the homes were too close to the lot lines. And so we are just afraid that as we go through this, that something else might come up that we need to apply for a variance for. Now, we are not asking that any variances be granted; we are just trying to say that if there is a way that we can preserve the process of applying for a variance, if something comes up that we havenÓt foreseen at this point, thatÓs what we would request. If we have to go forward with the condition as they are written, we can do it. But we just are hoping for some sort of saving clause that will allow us to apply for variances, if something that we havenÓt foreseen at this point comes up. But otherwise, the representatives of two of the owners are here, so in terms of compliance with the conditions, I defer to them. Are there any questions? HOUSEL: I had one question. Now, with the extension of time, that applies to all the units, right, so all must complete within that time frame, is that -? VITOUSEK: ThatÓs correct. That applies to the three units that have not been constructed. Yes, five years to complete construction. HOUSEL: Right, okay. VITOUSEK: And extended only by the Commission, I notice. Let me just, on the Stardust Road thing, you know, the problem with Stardust Road is simply that we donÓt own it; the owners of these units donÓt own or control Stardust Road. And I think itÓs one of those roads that were created as part of a partition decision way back when. So I think that there is not a lot 8 EXHIBIT B of clarity about who does own it. But itÓs not that the owners are opposed to putting signs or speed bumps or anything, because they really do support the idea of being safe; itÓs just they donÓt have control in order to do it. And we really ask that the problems with the homestead road issue not get imported into this SMA. ItÓs been quite a process getting to here anyway. HOUSEL: Commissioner Bowman. BOWMAN: You referred to homestead road now Î I havenÓt heard that. Sorry. VITOUSEK: Excuse me, I misspoke. What happened is, in some of these areas there were big tracts of land that were owned by a number of people in common. And so they would go into court in a partition action; the court would partition the lots out to different owners and then would lay out these roadways on a partition map without any real clarity as to who owned it. So I misspoke in saying homestead road, although itÓs kind of the same theory when the court lays out areas and reserves roads, but itÓs not specific as to who owns the roads. BOWMAN: So are you then referring to Stardust Road? VITOUSEK: IÓm referring to Stardust Lane -. BOWMAN: Okay, thank you. VITOUSEK: My understanding is Stardust Lane was one of the roads that were laid out on this 1914 -. BOWMAN: A homestead road. VITOUSEK: Yeah. BOWMAN: Okay, so Stardust Lane is the road in question with, you donÓt, we donÓt know who owns it. VITOUSEK: ThatÓs correct. BOWMAN: But the initial paving, you donÓt know who did it? VITOUSEK: That was not done by the owners of this unit; that was done, I think, in conjunction with another project that was approved. Jeff? DARROW: Correct. That was done in conjunction with the development across the road. But it was actually a requirement placed on this application. So the requirement was met, and thatÓs -. VITOUSEK: Yeah, the requirement to pave it was placed on this application originally, but itÓs been determined by the Department to have been satisfied. 9 EXHIBIT B BOWMAN: And let me understand, you said your clients would be amicable towards speed bumps -. VITOUSEK: Well, I canÓt, they are probably in a better position to speak for them, but I think that thatÓs not a -. I guess I would have to say, Commissioner Bowman, thatÓs beyond the scope of my representation. BOWMAN: Okay, weÓll ask them. VITOUSEK: Yeah. BOWMAN: Thank you. HOUSEL: I had a question regarding Stardust Lane. Does it serve any other properties beyond the entrance to this CPR? VITOUSEK: Yes, I believe it does. HOUSEL: It does. VITOUSEK: Does it cross Kahakai, or is it -? I mean it serves on both -. LEITHEAD TODD: Jeff, can you go back to that other map we have of the area? VITOUSEK: It looks like, to me, it looks like it dead-ends into the Kahakai School Access Road. HOUSEL: Right. But the properties across the street from this land, is there any access to those properties from Stardust Lane? VITOUSEK: I donÓt know the answer to that, sorry. DARROW: If IÓm not mistaken, I think that there is a lane, you see this lane right here, that provides access to these lots here. ThereÓs a road lot in this general location, so the only way, it appears, that these lots can get access is through that lane, which is off Stardust. HOUSEL: Does that lane, which is shown, correspond to the entrance to this land? DARROW: LetÓs see if, I might have -. It looks like it actually does. HOUSEL: Is there any need to have that open? I mean as long as the Department of Public Works isnÓt saying right now that they need to have that for access to Kahakai, so is there any need to have that open? DARROW: If I could defer to our Director. Thank you. 10 EXHIBIT B LEITHEAD TODD: I was just thinking since Kahakai is a public road -. IsnÓt that correct? DARROW: I would believe it is, but -. LEITHEAD TODD: IÓm going to talk to the director about whether we can put a barrier up at the end of Stardust, which would then prevent people from accessing Kahakai through Stardust Lane. Especially since our long-range plans, I believe, are to have, at this point we arenÓt planning to have it access AliÒi Parkway, which is what is going to go through there; so thatÓs consistent with our long-range, and we may as well get people used to it now. So I canÓt control Stardust because itÓs private, but I can talk to the Public Works Director about putting -. Especially because weÓve got a pole in the middle of the road, I would think that in the interest of public safety we might want to look into putting a barricade up there. So IÓm going to follow up with Warren Lee on that. HOUSEL: Okay, good, thank you. BOWMAN: Could you go back to the other subdivision map, the big DARROW: This one? BOWMAN: No. WasnÓt there another one that showed -. Okay, there. Stardust Lane, you said there is another road that runs perpendicular to Stardust that serves those other lots to the Kona side? DARROW: This right here is the name of that road, and itÓs right in that general location. BOWMAN: Okay, let me look at one thing. Could you, IÓm sorry, could you show me Stardust again? DARROW: This is Stardust Lane here. This is the subject property. The entrance of the subject property is here, and there is a lane directly across. BOWMAN: Okay. So if we close the end of Stardust, then all the access would be from AliÒi, right? DARROW: Correct. Yeah, they wouldnÓt be able -. BOWMAN: Yeah, AliÒi or -. Royal Poinciana doesnÓt go; youÓve got to go down to AliÒi and then back up. DARROW: Correct. BOWMAN: Okay. And those lots that the little road serves, are they built out? DARROW: Yes. 11 EXHIBIT B BOWMAN: And there was a reference made to a subdivision of a few years ago. IÓm just trying to see how many -. So all those lots are built out. DARROW: IÓm not sure if all of them are built out, but -. BOWMAN: Or most of them that that little lane serves. DARROW: If you can, on the left side here is the area that you are referring to, so you can see that there are houses in the general area. BOWMAN: Thank you. BEAUDET: Could you go back to the map, the colored map of the s DARROW: This one? BEAUDET: Yeah, yeah. WeÓve got Stardust Lane, the lane below that -. DARROW: Hlualoa Beach Road? This one? BEAUDET: No. Running parallel with Stardust. DARROW: Right here. BEAUDET: Yeah. Now, that one, I assume, is private as well. DARROW: Correct. BEAUDET: And it has frontage on AliÒi Drive, which is not secured. DARROW: You mean gated? BEAUDET: Gated, yeah. DARROW: Yeah, I donÓt believe it is, but IÓm pretty sure these roads are pretty substandard. The only paved road in this area is Stardust; Hlualoa, Mania Lane and this lane are basically rough gravel roads. BEAUDET: My thought here in the questions is for emergency access, because if we secure access from Kahakai Road, you know, thatÓs a pretty congested development in that area, and to just have all of those lots with only one access to AliÒi Drive both to ingress or egress in an emergency situation might be, well, kind of questionable, yeah? So if we do secure access off of Kahakai, is there a way of maintaining the other routes to AliÒi Drive open? I mean, do we, does the County have the jurisdiction? 12 EXHIBIT B LEITHEAD TODD: I believe all the other routes are open, and none people are using Stardust over the other ones is because Stardust is paved. And we have speed bumps on the main access that leads up Royal Poinciana. People were speeding through there, so we put in some traffic-calming devices because, you know, itÓs a County road, we can do that. But because of that, guys are going on Stardust now to avoid going on Royal Poinciana. If we put a barricade at Kahakai, which is what I wanted to talk to the Public Works Director on because thatÓs our long-range plan anyway, then that would basically push people back onto Royal Poinciana because the other roads are not paved. BEAUDET: All right. LEITHEAD TODD: And it will be a barrier that could be moved in the event of an emergency. HOUSEL: Mr. Vitousek, I want to ask you. You mentioned the variance thing, and would the change to allow variances for Units C and E Î is that right? Is there anything that you know right now would indicate you need a variance for any of the other properties? VITOUSEK: No, Mr. Chairman, there is nothing I know right now th further variances. But IÓm just afraid that something might come up as we, because we still have to go through the plan approval process, the CPR processes. And the Planning Department has looked at it carefully, and I think they also believe that there are, no further variances will be required for us to get plan approval. But we are just concerned about the additional time that would be required to come back to the Planning Commission to get a change in that to apply for a variance to address something as minor as a setback from, you whatever it is that might come up in the future. HOUSEL: Commissioner Bowman, did you have -? BOWMAN: I was just going to ask staff what the rationale for not that requirement. DARROW: Well, the original requirement was in the original SMA Permit, and I believe that their intention from the beginning was to not allow variances for the construction of the original six dwellings, which was, so that they would, you know, just build within the area that they are building and not expand beyond that. But there are some concerns that Randy is bringing up that, again, itÓs a valid point that there may be issues that may come up in the future that may be unforeseen, so at this time weÓll discuss that issue. A consideration is that, in the wording of the condition, that we put Ðno further variance would be allowed from the minimum yard setback requirement.Ñ And thatÓs basically so that if there is a minimum lot width issue or if there is a waterline issue or whatever it could be, that those could be taken care of. But as far as minimum yard setbacks, those in this particular layout are pretty identified as to where houses can be built and so -. But just in case thereÓs other types of issues that may come up. Would that be something that you would consider? VITOUSEK: Yes, absolutely, I mean because the intent is to have these units with yards and with space around them. That was the original intent as shown on the original map; that remains the intent. But it does give us some more flexibility, and I appreciate that consideration. 13 EXHIBIT B HOUSEL: Okay, that would work for you? VITOUSEK: That would work. HOUSEL: Good. Mr. Darrow, could you put some language together to help us on that? DARROW: Mr. Arai is helping us. Thank you. HOUSEL: Okay, thank you. Well, does anyone have any more questions for Mr. Vitousek? Okay. Thank you, Mr. Vitousek. VITOUSEK: Thank you very much. HOUSEL: We do have at least one testifier. Would you like to come forward? Do we have another one, too? Anyone who would like to testify, please come forward. Could you raise your right hand, please? Would you state your name? REVHEIM: My name is Dianne Revheim. HOUSEL: And your address, please. REVHEIM: My physical address is 76-6183 Kumu Place, Kailua-Kona. HOUSEL: Do you swear to tell, or affirm, the whole truth to the Commission today? REVHEIM: Yes, I do. HOUSEL: Thank you very much. REVHEIM: I live in Kahakai Place on Lot 13. And I just wanted to, since there were many questions of the world of Stardust Lane, I wanted to just address a few things. ItÓs my understanding and part of my CC&RÓs that a requirement for them to put in the 14 -. There are 14 build-out houses in Kahakai Place, which is the subdivision that is immediately across the street that youÓve been talking about, thatÓs got the access into it -. BOWMAN: Can we see that on the map? IÓm a very visual person, so I have to see it. Thank you. REVHEIM: Okay, if you see where Î where am I here Î it says Kumu Place here, and their access is going to come in here. Our access is right across the street. ItÓs a little gated 14-unit subdivision that they put in. According to what knowledge I have, part of our CC&RÓs when Kahakai Place was developed, the requirement was that Stardust Lane be paved Î I love the idea of blocking off Kahakai School Place Road by the way, because I canÓt get on my driveway half the time Î but one of the requirements in our CC&RÓs is that, since it is a private road, since to put the subdivision in it was a requirement that it be paved, we are responsible for maintaining 14 EXHIBIT B Stardust LaneÓs pavement. So my concern, which has since gone kind of ironic if you block off Kahakai School Road, but is with the additional traffic and this new subdivision, which IÓm definitely in favor of, but that they have some kind of responsibility also in maintaining Stardust Lane to the same standards that it is right now, rather than adding in additional traffic there and we are responsible for the maintenance of it and upkeep of it. HOUSEL: How long ago was that paved, do you recall? REVHEIM: IÓve lived there for two years, or IÓve owned there for two years. ItÓs my understanding somewhere within two years before that, maybe, was in that little subdivision. IÓm not positive of that, but I would say within the last five years. But I believe itÓs less than that. HOUSEL: So, looking at the pictures, it looks like Stardust Lane is in good shape and seemingly in good shape right now? REVHEIM: Yes, it is. HOUSEL: You mentioned the maintenance part. Has any maintenance been required since they paved it? REVHEIM: No, it has not. HOUSEL: Do you, as far as your association or whatever, even though you are responsible for maintaining it, do you contribute to that on a regular basis or anything? REVHEIM: As far as I know, it is part of our homeownersÓ association dues that we pay. HOUSEL: Okay, it is part, okay. REVHEIM: I believe that it is. IÓm not exactly certain how it breaks down, but we do pay homeownersÓ association dues, it is part of our CC&RÓs, so it stands to reason that a part of it is being set aside for that. HOUSEL: Okay. Commissioner Giffin. GIFFIN: So am I correct in assuming that your subdivision owns Stardust Lane? REVHEIM: As far as I know that is not so. I believe they were only required to pave it to be able to put in the subdivision, but I donÓt believe we own it. GIFFIN: So even though you donÓt own the road, you are required to maintain it? REVHEIM: The paving of it, yes. GIFFIN: What about liability? 15 EXHIBIT B REVHEIM: I donÓt know the answer to that. GIFFIN: Bobby Jean, you -? LEITHEAD TODD: Generally, based on the case that came out of the Hawaiian Paradise Park road maintenance issues, when you have a private road, you can require all the property owners that use the private road to contribute towards maintenance of the road. I think what happened when the prior subdivision came in, we either required it as a condition or it was put in place, but I imagine it was put in as a condition. And I would think that having some kind of a condition on these lots that says they had to contribute to any future maintenance, if Stardust remains private, is very consistent with the current status of HawaiÒi l the property owners were to go to court, you could require everybody along that road to contribute, because thatÓs what happened in Hawaiian Paradise Park. And certainly we have enough attorneys out there in the audience, if they want to disagree with my understanding of the law. GIFFIN: Thank you. BOWMAN: I just have a quick question. Are you aware that this is not necessarily a new subdivision that has been on the books since 1991? REVHEIM: I am aware of that, yes. BOWMAN: Okay, thank you. HOUSEL: I think you mentioned it. I just want to clarify. If the Department of Public Works agreed to put a barricade across there, would you support that? REVHEIM: WeÓd have a block party. HOUSEL: Okay, thank you. LEITHEAD TODD: With the magic of modern interconnectivity, IÓve already sent the request via email to Public Works Director, Warren Lee, to explain the problem with Royal Poinciana, Stardust and Kahakai, and ask him to look at putting in a barricade. And then IÓll follow up on that email when I get back to the office. HOUSEL: Thank you. Thank you very much for your testimony. Do we have anyone else who would like to testify? Do you swear to tell the whole truth to the Planning Commission today on this matter? MATSUKAWA: I do. HOUSEL: Thank you. Would you state your name and address, please? 16 EXHIBIT B MATSUKAWA: My name is Michael Matsukawa. IÓm an attorney in Kona. I represent the owner of Lot, Units B and D. GIFFIN: A and B? MATSUKAWA: We agreed to consolidate A and B. GIFFIN: Okay. MATSUKAWA: I just wanted to bring to the CommissionÓs attention just in case you run into other issues with Hlualoa, that weÓve, in February we just finished a series of litigation concerning the partition roads. It ran from one litigant asking the judge to appoint a new commissioner and clean up the road issue. I know someone at the legislature thought of introducing a bill of some kind, but you know, none of these solutions really are practical. But the background is simply this: In the late 1900Ós, no, late 1800Ós, the old Hlualoa hui, which was formed by a lot of local Hawaiian people as a means to withstanding what was going on in society at the time. Huis were formed all over the state. This was one of those huis that originally was Victoria KammaluÓs interests, and the local guys formed a hui to hang onto their properties; they had their own bylaws, etc. I think in my opinion the plantation dominated court, then said, no, huis are illegal, and so they were just tenants in common. So as a result what happened is they had to partition the property Î just like five people own a piece of land, youÓve got to cut it up to pay your bills, etc. So the partition was done in Honolulu by a Honolulu judge Î seems like a common recur commissioner who was appointed laid out all the lots, but never conveyed the roadways. And there are some remnant parcels that were never conveyed. In comparison, in Maui there was a similar incident, but the commissioner, with the approval of the powers that be Î I guess Maui runs a little differently Î conveyed the roads of the subdivision partition to a clerk of the court temporarily until such time as the clerk could dump it off on somebody else. But at least ownership was consolidated in a single name. And on KauaÒi they have the same situation with the MoloaÒa partition. ItÓs still in a court clerkÓs name, so if you need to do something, at least you see the local judge and say, we need you to sign off something. So in this instance, we donÓt have a consolidation. If I remember, there are 2,000 lots plus in Hlualoa hui partition. So you know, you run into this idea, well, maybe the ownership is from AliÒi Drive to Kuakini Highway, that segment would be just those owners; the guys up in Hlualoa at Nakagawa Service Station should have no interest in the road down there. But some people own mauka and makai partition lots, and it becomes a problem. Like I said, the last effort was Michael Gibson from the Ashford firm; he tried to convince the judge to re-appoint a new commissioner to clean this mess up, and the judge said, no, the case is closed, unless someone wants to bring a new case, he canÓt touch it. Legislature has informed the solution. So to the credit of the property owners, they have been on their own, like Stardust Lane, taking responsibility for what is running to their properties and doing the best they can. And yes, issues of liability, maintenance, what can government flush them to do, all come to surface. But like the property we were litigating, just finished, to the south, again, the property owners, including the County, have reached agreement of how weÓre going to maintain the 17 EXHIBIT B properties and deal with each otherÓs responsibilities for the public good and for the good of everyone until there is a better solution. So itÓs something weÓre going to have to live with for a long time. Just for your information. Thank you. HOUSEL: Thank you. Mr. Matsukawa, we are going to ask Department of Public Works to put a barricade across the part closest to Kahakai. Do you see any problems with putting a barricade across there? MATSUKAWA: I know thereÓs a chain-link fence on the north side thatÓs a barrier already for the project to the north. On the south, I know what you can do maybe, you know, something that can deal with an emergency where someone could take a truck and just haul it away as opposed to a chain-link fence. I donÓt know what type of a barrier but it might be reasonable to try and accommodate the public interest safety issue with some kind of a movable emergency exit type situation. HOUSEL: Thank you very much. MATSUKAWA: Of course, at the CountyÓs expense. HOUSEL: Is there anyone else who would like to testify on this? Okay. DARROW: Mr. Chairman? HOUSEL: Yes. DARROW: We do have a suggested language for Condition 3. This would be on the last sentence. This would be your yellow sheet. HOUSEL: The light-yellow one? DARROW: Yeah. HOUSEL: So, Condition 3. DARROW: And on the last sentence it would read, ÐNo variance from the,Ñ and then weÓll be adding the words, Ðminimum yard setback requirements of the,Ñ and then it would continue on, ÐZoning Code shall be applied for or granted except for ÒUnit CÓ and ÒUnit EÓ identified on the New Development Plan.Ñ This will allow them the possibility of applying for variances other than minimum yard setbacks. HOUSEL: Okay, it sounds good. Is that appropriate, Planning Director, to put any language in here regarding the barrier? LEITHEAD TODD: No, because the barrier would have to be on Kahakai, which is not part of this plan. But IÓve already sent the email and IÓm going to follow up, and actually I might see whether, I think on Tuesday, whether itÓs possible for me to jump in on that meeting, because the 18 EXHIBIT B photo of the pole raised real concerns in my head that, you know, youÓve got -. I always tell my kids you have to put the idiot factor into it when you drive on the road, and unfortunately there are some people who are idiots out there. And so the pole is a big concern for me. And so I just think that itÓs in our interest, especially now that IÓm aware of the pole, to try and do something on Kahakai to protect the public by putting some type of a movab thinking. You know how you sometimes see those white construction things where theyÓve got barriers up. WeÓve done it at various sites. So IÓm going to follow up. But I donÓt think it should be a condition on this particular project because they donÓt have control over that, and I want to do it on Kahakai. BOWMAN: Sorry, just worst case scenario, if they say, no, weÓre not going to put a barrier up. We still talked about speed bumps. Can there be something that, if thereÓs nothing done on Kahakai Road, that speed bumps would be installed? GONZALEZ: I donÓt see why not, but the thing you guys have to remember is thereÓre many, many laws and regulations regarding traffic control devices and design and construction of highways and roadways, and we are not the expert on that. And so if you get too specific, then youÓll limit the options that Department of Public Works can look at to address the concerns. So just throw the concerns out there, and give, and then leave it broad enough so DPW can look at a range of options to address your concerns. You donÓt want to handcuff them. So I think if you get too specific in what you want them to do, thatÓs the danger. BOWMAN: But do the speed bumps have anything to do with DPW because itÓs a private road? GONZALEZ: Well, itÓs a private road. If itÓs part of the application Î I donÓt know, I mean I guess you can ask for it to be a condition. But again, you are integrating issues that you shouldnÓt be focusing on at this point. Director, do you have any comments on that? LEITHEAD TODD: I was going to say, you know, typically -. This is an extension of an existing SMA, and the main reason we are here is because the law could no longer do six units and they have to do five, and one guy had to buy out; so thatÓs really what we are doing here. So IÓm a little concerned about adding conditions over which they may not be able to control because, you know -. But obviously IÓm going to go work with Warren Lee, and then we may follow up with the property owners individually to see what can be done. But IÓm going to really push hard for that barricade because itÓs our long-range plan not to have this road connect to AliÒi Parkway, and itÓs also a safety issue, and I certainly donÓt want people coming through Stardust, speeding onto the main access to an elementary school, because that poses a threat to the traffic on Kahakai. And I think that it sounds like the residents here would not be adverse to the County doing something like that because it would actually be a benefit to them, because it would reduce the amount of traffic Î makes it easier for them to get in and out. And weÓll try to do something -. And the pole worries me, and so I want to do something on Kahakai. And I think that I should be able to work something out with Mr. Lee. BOWMAN: So thereÓs nothing to prevent the homeowners from Kahakai Place or the applicants from getting together and putting their own speed bumps in, right? 19 EXHIBIT B LEITHEAD TODD: No, there is not that any, thereÓs nothing that prevents them from doing that. And I would think that there is also nothing that prevents them from putting a gate up at the end of Stardust, if the homeowners agree to that. The difficulty that you have with a private road is that generally youÓve got to get agreement of all of the people that have an interest in the road. The reason IÓm looking at doing the barricade on Kahakai is because thatÓs a County road and clearly within the County jurisdiction. I think the problem with any homeowners trying to put up a gate or barricade is that if you have other homeowners that object to the gate or barricade, then you end up back in court. So what IÓm trying to do is what clearly is within County jurisdiction, which is Kahakai, and thatÓs why I want to work with Director Lee on that, because thatÓs something I do have some influence and with the County does have some control. Private roads, the problem is, is multiple owners, multiple interests, and you may have a number of them that say, yeah, we want to barricade it, but you may have some others thatÓs how we take our kids to school. IÓm just looking at this from a public safety standpoint that that pole in the middle of a road is a problem, and I donÓt want somebody plowing into the pole, so I want to try and do something. And Kahakai is a County road, so that one we can work on. HOUSEL: Okay, thank you. Any other -? NELSON: I had one question. The other option possibly would be to discuss this with Hawaiian Electric and Hawaiian Telephone and Oceanic to see if they have any interest in the interest of safety to relocate the pole. I mean it sounds so idiotic to believe that this day and age weÓve got a pole in the middle of a road. So thatÓs just another option to consider. BOWMAN: I think thatÓs a good option, but just my opinion is that road is dangerous as an access road to Kahakai. But I agree with you. Thanks. HOUSEL: Any other questions? Would someone like to make a motion? BOWMAN: Okay, itÓs a complicated motion, thatÓs right. I move to approve the amendment to Special Management Area Use Permit No. 314 with the addition of the new wording in Condition 3 as staff told us. DARROW: Could I just get clarification from Commissioner Bowman, and that would be with the revised recommendations that are on the yellow sheet? BOWMAN: Yes, IÓm sorry, with the light-yellow sheet and the addition on No. 3. DARROW: Thank you. Do we have a second? HOUSEL: Do we have a second? NELSON: Second. HOUSEL: Seconded. Motion made by Commissioner Bowman, seconded by Commissioner Nelson. 20 EXHIBIT B GIFFIN: Mr. Chairman? HOUSEL: Sure. GIFFIN: It might be advisable to have staff re-read the wording just so we are all clear. HOUSEL: ThatÓs a good idea. DARROW: Thank you, Commissioner Giffin. The change would be on the last sentence on Condition No. 3 of the revised conditions of approval, and it would state, ÐNo variance from the minimum yard setback requirements of the Zoning Code shall be ap for ÒUnit CÓ and ÒUnit EÓ identified on the New Development Plan.Ñ With that, weÓll take the roll. Commissioner Bowman? BOWMAN: Aye. DARROW: Commissioner Nelson? NELSON: Aye. DARROW: Commissioner Beaudet? BEAUDET: Aye. DARROW: Commissioner Giffin? GIFFIN: Aye. DARROW: And Mr. Chairman? HOUSEL: Aye. DARROW: The motion passes, five to zero. HOUSEL: Thank you very much. The discussion ended at 10:56 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 21 EXHIBIT B