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HomeMy WebLinkAbout2023-01-19 Leeward Exh B (Items 1&2 Ahu Pohaku Hoomaluhia PL-SMA-2022-000018&PL-SPP-2022-000018) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT JANUARY 19, 2023 A regularly advertised hearing on the applications of AHU POHAKU HO`OMALUHIA LLC (FORMERLY ROBERT WATKINS AND JEAN SUNDERLAND) (PL-SMA-2022-000018 AND PL-SPP-2022-000018) was called to order at 9:54 a.m. in the West Hawaii Civic Center, Council Chambers, Building A, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii,with Vice Chairperson Zaheva Knowles presiding. COMMISSIONERS PRESENT: Zaheva Knowles, Michael Dela Cruz, Mahina Paishon-Duarte, and Michael Vitousek ABSENT AND EXCUSED: Clement"CJ" Kanuha III RECUSED: Barbara DeFranco ALSO PRESENT: Sinclair Salas-Ferguson, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Jeffrey Darrow(Deputy Planning Director), Maija Jackson (Planning Program Manager), Jessica Andrews (Planner via Zoom), Christian Kay (Planner), Clinton Mercado (Planner), Janice Hata(Zoom host), and Noriko Sauer(Commission Secretary) And approximately ten public members in the audience. APPLICANT: AHU POHAKU HO`OMALUHIA LLC (FORMERLY ROBERT WATKINS AND JEAN SUNDERLAND) (PL-SMA-2022-000018) Application for an amendment to Special Management Area (SMA)Use Permit No. 417 to increase the number of guest rooms from 16 to 36 by constructing 20 additional guest rooms at Hawaii Island Retreat, on an approximately 5.0-acre portion of a 14.5-acre parcel of land situated in the Special Management Area. The subject property is located at 54-250 Lokahi Road, approximately 1.2 miles northeast(makai) of Akoni Pule Highway, Hanaula and Honopueo, North Kohala, Hawaii, TMK: (3) 5-4-009:014 (por). APPLICANT: AHU POHAKU HO`OMALUHIA LLC (FORMERLY ROBERT WATKINS AND JEAN SUNDERLAND) (PL-SPP-2022-000018) Application for an amendment to Special Permit No. 1117 to increase the number of guest rooms from 16 to 36 by constructing 20 additional guest rooms at Hawaii Island Retreat, on an approximately 5.0-acre portion of a 14.5-acre parcel of land situated in the State Land Use Agricultural District. The subject property is located at 54-250 Lokahi Road, approximately 1.2 miles northeast(makai) of Akoni Pule Highway, Hanaula and Honopueo,North Kohala, Hawaii, TMK: (3) 5-4-009:014 (por). 1 EXHIBIT B DEFRANCO: So at this point I am recusing myself from Agenda Items 1 and 2 because of a conflict of interest that I have. And Vice Chair Knowles will be presiding those items. KNOWLES: Thank you, Chair. Good morning. My name is Zaheva Knowles, Vice Chair of the Leeward Planning Commission. Welcome. Today, we will be initially discussing Agenda Items 1 and 2, submitted for the same project by the Ahu Pohaku Ho`omaluhia LLC, formerly Robert Watkins and Jean Sunderland. So I'll introduce those items together. The items first and second on the agenda, applicant Ahu Pohaku Ho`omaluhia LLC, formerly Robert Watkins and Jean Sunderland, PL-SMA-2022-000[0]18, this is an application for an amendment to Special Management I feel like I'm echoing—Special Management Area Use Permit No. 417 to increase the number of guest rooms from 16 to 36 by constructing 20 additional guest rooms at Hawaii Island Retreat, on an approximately 5-acre portion of a 14.5-acre parcel of land situated in the Special Management Area. The subject area is located at 54-250 Lokahi Road, approximately 1.2 miles northeast, makai, of Akoni Pule Highway, Hanaula and Honopueo,North Kohala, Hawaii, TMK: (3) 5-4-009:014 portion. Second is applicant Ahu Pohaku Ho`omaluhia LLC, formerly Robert Watkins and Jean Sunderland, PL-SPP-2022-000[0]18, application for an amendment to Special Permit No. 1117 to increase the number of guest rooms from 16 to 36 by constructing 20 additional guest rooms at Hawaii Island Retreat, on an approximately 5-acre portion of a 14.5-acre parcel of land situated in the State Land Use Agricultural District. The subject property is located at 54-250 Lokahi Road, approximately 1.2 miles northeast, makai, of Akoni Pule Highway, Hanaula and Honopueo,North Kohala, Hawaii, TMK: (3) 5-4-009:014 portion. The Commission has received three petitions for standing in a contested case hearing, covering both applications. Before we consider these petitions, I'd like to open the floor to public testimony on these two items. I have here Mark Castaing and Beth Thoma Robinson. Mark? Okay, will you come up, please? Okay, I have to swear you in. Good morning. CASTAING: Okay. Good morning. KNOWLES: Please raise your right handI have to find the language here. Do you swear or affirm to tell the truth on this matter now before the Leeward Planning Commission? CASTAING: Yes, I do. KNOWLES: Okay, great, thank you. Please speak directly into your microphone, not as close as I was doing, and begin your testimony by stating your name and the town you live in. Please summarize your testimony in three minutes. CASTAING: Okay, my name is Mark Castaing, I go by Marcus Castaing. I actually live in Wai`6hinu, but next month I will be moving to my property I bought 20 years ago, which is next door to the property we are talking about. 2 EXHIBIT B So, I put in written testimony, but if I've only got three minutes, I think I'll just try to—you can read what I wrote. KNOWLES: Thank you. CASTAING: It's relevant, I hope. The neighborhood has deep concerns about this project expanding. We all bought these lands together 20 years ago, a little over 20 years ago. We were, we had to form a community association to purchase these pieces of land. The special use permit that was given to Hawaii Island Retreat set them far apart from the rest of us, and it's been a contemptuous, hard going ever since. We had to put in our infrastructure, and there were certain things that were mandated for the Retreat special use permit. They needed to expand the road to 20 feet; we didn't. They needed to put in an apron on the highway; we didn't. Later on, they came back and sued the rest of the community to make us help pay for those. That cost us 100,000 dollars. And we also put in 140,000 dollars' worth of pavement on Maluhia,which is a half-mile section of road with very steep sections, over eight percent grade, and blind curves. There are also those on Lokahi Road. This is an area that should not have this kind of traffic on it. Besides the hotel guests and the workers, there is,public access was mandated for this special use permit. That adds a lot of traffic to the road. If they get to move forward with this,they get to degrade all the money that we've put into our infrastructure. We did that as a community association, which no longer exists. So, getting this group back together to repair this after it's degraded over the coming decades is not going to be easy. It should last all of us a very long time if we don't have to deal with additional traffic KNOWLES: My apologies, you actually have six minutes total because you are speaking on 1 and 2. So you'll have a little extra time. CASTAING: Okay. To me I don't understand the difference between 1 and 2, but my comments—and I also had testimony on 3. I don't know if I come back up for that later or do it now. KNOWLES: Well,that's your choice. You could add that, I think CASTAING: Okay. So, and the other issue that I have is that they've made it hard for us to use the public access—several of the neighbors that own coastal properties along there have all signed on to mandates where there is a coastal trail—and often there's locked gates, there are certain fences that don't have gates, and so you can't go from one property to the next. This is a vital resource for people, you know, it's like getting out and being with nature is one of the healthiest things I know, and communities get shut out from this. And the access to the coastline needs to be looked into, it needs to be maintained. It was a commitment that was given by not only Hawaii Island Retreat but several of its neighbors along the coastline. So, I'm hoping that becomes an issue that gets dealt with also. As far as the squashing the hotel section down to a five-acre parcel, all these permits were given to a 54-acre parcel 20-something years ago, maybe 22. Since then, there was a small burial lot in the middle of that, and the owners changed that into a 14-acre parcel and—it was the Lincoln burial lot—and then a larger parcel. Now they want to do another one,which shrinks the whole hotel 3 EXHIBIT B down to five acres. At the same time,they want to more than double its size. I don't think they should be able to keep changing the size of these lots. They, so, I hope that you'll give consideration to that. And thenI think that covers most of my issues, especially what I wrote down here for you, and I appreciate the opportunity to talk with you, and I'd be happy to answer any questions. KNOWLES: Thank you. Any questions? PAISHON-DUARTE: I have a question. Good morning,my name is Mahina Paishon-Duarte. My understanding in reading some of the other written testimony is that there was a CDP growth management subcommittee that was held on December 14, 2022,to gather more information,to talk about the issues at hand. My question to you, sir, is,were you present at that particular meeting on December 14, 2022? CASTAING: No. I did not know about it. And quite frankly, on No. 3 that is supposed to be KNOWLES: Oh, I'm going to stop you there. We are going to just deal with I and 2 here, and then we'll have you come back to testify on Item No. 3. CASTAING: Okay, okay. KNOWLES: Thank you. CASTAING: Yeah, I didn't know that that meeting happened, and I certainly would have attended. But many of the neighbors are very concerned about this additional traffic on our infrastructure for the benefit, financial benefit, of just one person in the neighborhood PAISHON-DUARTE: Thank you for your response CASTAING: I hope that you put that in the consideration. KNOWLES: Any other questions? Thank you, Mr. Castaing. CASTAING: Thank you for your time. KNOWLES: I'd now like to call Beth Thoma Robinson up, please. So you will also THOMA ROBINSON: Good morning. KNOWLES: Good morning. You will also have six minutes THOMA ROBINSON: minutes for each. KNOWLES: I'm going to swear you in now, please. Can you raise your right hand? Do you swear or affirm to tell the truth on the matter now before the Leeward Planning Commission? 4 EXHIBIT B THOMA ROBINSON: I do. KNOWLES: Thank you so much. THOMA ROBINSON: Thank you. I am Beth Thoma Robinson. I live in zip code, would say I live in Hawi, I live in Ka`auhuhu Homesteads, ahupua`a would be Awalua. I've been in Kohala for 18 years. I'm, I did submit written testimony,which you all should have in your packet on behalf of the Kohala Community Plan working group. I'd also like to address the letter that was submitted by Toni Withington on behalf of the growth management subcommittee of the Kohala CDP advisory group. And I'm speaking particularly because we have an empty seat for the North Kohala representative on Leeward Planning. I'm not sure how many of the Commissioners are aware of the fact that we don't have an Action Committee, a CDP Action Committee, in Kohala. But Kohala has proactively worked with the Planning Department to create two other structures, and those two structures have attempted to gather larger community input as opposed to the very valid concerns in the process from the neighbors. The CDP advisory group,which is the other letter that was submitted by Toni Withington, and the growth management subcommittee is a pre- existing subcommittee of the CDP going back to our 2008 CDP. It's one of the four focus areas. The concern is that we had not had a quorum on our CDP for many years because no one in Kohala wanted to serve on an action committee that had become essentially an inaction committee. Kohala people are known for being people of action, people who want to get things done, and so they were putting their efforts into those subcommittees that had been meeting continuously for 15 years or putting together new projects under our fiscal sponsor. We met with the Planning Director shortly after he was appointed to the position, and we explained what the concerns were that had led to a situation. And these were people who'd been part of the logistics team, the steering committee, in 2007 and who had served on action committees in the meantime. With the agreement of the Director, we came up with a different structure that we are trying, called an advisory group; it's still nine members, it still meets monthly, but it's not subject to Sunshine Laws, and it's still coordinating input from those same subcommittees that were working under the action committee and were formed under NKCDP process. Simultaneously, there were a number of us who were being recruited to submit on that, to sit on that who said we really don't have any energy for a 15-year-old plan because so much has happened. I work with the affordable housing group; we'd already gone back in and redone our housing survey that we'd done in 2007 because we didn't have accurate data anymore. So we knew that it was possible to go back to the community and get updated community input. So we are calling that the Community Plan, the Kohala Community Plan. Spoken about it with the Planning Director,have his endorsement, it's a plan being written by the community for the community. But those of us who were on the logistics team working with a consultant to gather the community input in 2006,we are replicating that process. Then we are feeding the results as they go into the existing groups. Our hope is that that will give more current community feedback for you as Commissioners and for the Planning Department. So, the applicant did appear in front of the growth management subcommittee, which meets monthly, and they did in fact vote in favor and presented to the advisory group, feeling that this is compatible with what they are hearing not only currently from the community but with our CDP. Our Kohala Community Plan group, as I said in our letter, there is a section that's not actually part 5 EXHIBIT B of one of the recommendations but a very significant section that was one of the most contentious issues when we did our CDP, and that was the number of special permits and special use permits. And I went through in some detail all of those that were at that time on the books. Two of them I actually represented in the sales, one of them to a landowner who is a neighbor who submitted testimony to all of you. And so we know that those ones aren't going to happen, and the current community sentiment is very strongly if we are going to have overnight accommodations in Kohala, we need some level of that, they would rather those be at the existing operations. And I think we'll be hearing a lot more from the community with respect to the transient accommodation rentals proposals that are up because the community is way more concerned about that right now than they are about the expansion of existing facilities. KNOWLES: Thank you. Any questions from the Commission? Paishon-Duarte. PAISHON-DUARTE: Good morning. THOMA ROBINSON: Aloha. PAISHON-DUARTE: Aloha. How many Kohala residents make up the committee that's putting together the Kohala Community Plan? THOMA ROBINSON: Oh, it's a really good question. So there are about a dozen people working right now on the Kohala Community Plan. So the advisory group side has nine, and there are probably 50 people working on the different subcommittees, which feed not only into the current CDP advisory group, but as we get the feedback from our talk story sessions that we are doing right now, and our goal is to meet or exceed the 700 interviews that we did in 2006, so all of that is coming to a group of about a dozen people,which include the people who are heading up each of the other subcommittees so that we have coordination between the two. PAISHON-DUARTE: Thank you. And my next question is, when do you anticipate completing a, well,your next version,most updated version, of a Kohala Community Plan? THOMA ROBINSON: We are hoping to do it this year, I mean, that's our goal. Unlike the process where you have to start with a consultant and you do the input, you know, the first time of CDP took about a three-year process, but because we already have these committees and each of committees is currently looking at their section of the CDP and just designating, is it something we've already accomplished, is it something in progress, is it something that we still support and need to be done, or do we simply have different ideas and we should throw it out. We are going to be putting it all on a website. We have funding from two foundations right now, and we are going to create a website so that we can update as we go as a resource for you all and for anybody else who needs a sense of the community opinion. PAISHON-DUARTE: Mahalo. KNOWLES: Any other questions? Commissioner Vitousek. 6 EXHIBIT B VITOUSEK: Thank you. In your testimony on the agenda item, you express concern about the lack of North Kohala representative on the Planning Commission, and I just wanted to throw it out there if you had any suggestions on people who could be as alternative. THOMA ROBINSON: I think there is one individual in the community who did say at least he was going to submit an application recently. It's something that those of us working on these groups have been very aware of and been trying to recruit, but, as you know, it's not an easy thing to get people to step up to. KNOWLES: Thank you. We appreciate that, thanks. JefI almost called her JeffJanice, do we have anyone who wants to testify on Items No. 1 and 2 in Hilo? HATA: Yes, we have Karl Toubman. So he is unmuted. Mr. Toubman, if you could turn on your camera, you can begin your testimony, and I will time you for six minutes. KNOWLES: Have you TOUBMAN: All right. KNOWLES: —sworn him in or should I swear him in here? HATA: You can swear him in, Vice Chair. KNOWLES: Okay. HATA: Thank you. KNOWLES: Good morning. TOUBMAN: Good morning. KNOWLES: Please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Leeward Planning Commission? TOUBMAN: Yes, I do. KNOWLES: Thank you so much. You will have six minutes. TOUBMAN: Thank you. Aloha. Thank you for letting me address the Commission this morning. My name is Karl Toubman. I've been a resident of the Big Island for over 38 years, and I'm a neighbor to this proposal by the Retreat center. And I have some of the same concerns as Marcus Castaing. Thank you,Marcus, for your testimony. One of the main things is that the road, the access road from Akoni Pule Highway is called Maluhia Road, and that was, as mentioned, it was controversial how we propose to develop that, but as it stands now, it is a paved road. But it's still narrow, and in fact, if you get two full-size 7 EXHIBIT B pickups, usually what happens, or in my case, I usually stop and let one pickup go by or a vehicle go by, and then I drive by. So it's a fairly narrow roadway. In the original SUP from the County, they mandated a 20-foot road. Well,that was kind of difficult because of deep cliffs on one side, so it isn't quite 20 feet,but in other words the road is not 20 feet as recommended by the County of Hawaii. And so that's one thing. The other thing, I was wondering about their water use because as I don't know if they have a well, I'm not sure,but all I know, at the highway where we have our main meters,they just have a five-eighths inch residential meter for potable water, and I'm just wondering, with the increase in rooms, where they will[inaudible connection disturbance]water. And so that's one issue that I wonder about. And the other thing is that other people in written testimony that have been submitted to the Planning Department,they, some neighbors are also questioning the fact of their septic system. Is it adequate for the increased occupancy? I did see a letter from Sidney Fuke who is a planner for the Retreat center, and he said that they have had problems getting in touch with the Department of Health. Of course, as we know, the Department of Health has jurisdiction over those matters. So that's, that's another question that I would like to bring up is the adequacy of their septic system for the increased use. So, and many of my neighbors have written in comments via email and letters to the Planning Commissioners, to you folks, and so hopefully, those will be read and noted also. I also did read the testimony of Toni Withington and Beth Thoma's in the packet that was made available online before this meeting. Toni Withington, who is a friend of mine, who brought up the fact that the area that she is thinking that would be possible positive reaction to increased rooms would be more labor, more employment, and I think that would probably be true, but we know the type of jobs that would be available. So I don't think that that necessarily holds a lot of water. And, so I would just like to say that we've had ongoing conflicts with the Retreat center for so long, it's for 20 years-plus, and I,we all bought this land thinking that, okay, well, we'll do our best to be neighborly and have aloha for each other, and as Marcus pointed out, you know,we found ourselves being sued by the Retreat center because they wanted more help,more money for the, for the development of the road that they were mandated to establish, and we, of course, did not have to do a 20-foot road, and we did not have to do an apron from the highway, and so on. So, these are just issues that I would like to point out. You know, it's, we do like to try to get along with our neighbors,but the increased traffic that this proposal would bring would be a detrimental to all of us—there's 17 other landowners that use Maluhia Road—it would be detrimental to all of us. Thank you for your time. KNOWLES: Thank you. Any other testimony? Any questions for this witness—testifier? Thank you, no questions, thanks very much. TOUBMAN: Thank you. KNOWLES: Is that all the Zoom testifiers? 8 EXHIBIT B HATA: Yes. KNOWLES: Thank you very much. Okay. Public testimony on this, on Items 1 and 2 is now closed. So, as I've mentioned,the Commission has received three petitions for standing in this contested case hearing from Charles A. Anderson, Trustee of the Charles A. Anderson Trust, EWM Enterprises, LP, by and through Charles A.Anderson, and Kohala Makani Kai, LLC, by and through Charles A. Anderson. The three petitions to intervene were filed in Agenda Item 1 and Agenda Item 2. The first order of business for us today regarding these agenda items is to determine whether to grant their petitions. Before we do that, may I hear a motion to consolidate the hearings? VITOUSEK: I move, under Planning Commission Rule 4-14, the Commission consolidate the petitions to intervene filed by Charles A. Anderson Trust, EWM Enterprises, LP, Kohala Makani Kai, LLC, so that Commission can hear each petition's request to intervene in the Agenda Items 1 and 2 at the same time since they are substantially the same parties and issues. Thank you, Commissioner Vitousek Can I have a second? DELA CRUZ: Second. KNOWLES: Thank you. I will now do a roll call for the vote to—oh, discussion, do we have any discussion about the motion? Does everyone understand the motion? [Inaudible affirmative response] Excellent, okay, then we'll take a vote. VITOUSEK: Do we need a roll call vote or is it just aye. KNOWLES: We need a roll call vote. VITOUSEK: Oh, okay. JACKSON: I can take the roll call vote. KNOWLES: Thank you,Maija. JACKSON: Commissioner Vitousek? VITOUSEK: Aye. JACKSON: And who seconded the motion? Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. 9 EXHIBIT B JACKSON: And Chair Knowles? KNOWLES: Aye. JACKSON: Okay, the motion carries, four-zero. KNOWLES: Thank you. I now would like to ask the petitioners or their representatives, as well as the applicant representing Ahu Pohaku Ho`omaluhia, and Deputy Director Darrow or his representative to please come forward to the podium. Good morning. I'd like to ask you all to raise your right hand. Do you swear affirm to tell the truth on this matter now before the Leeward Planning Commission? [Inaudible affirmative response] Thank you very much. Please introduce yourself, starting on this side. HAITSUKA: Good morning,Vice Chair Knowles and the members of the Leeward Planning Commission. My name is Edmund Haitsuka. I'm an attorney, and I represent the petitioners, Charles Anderson, Trustee of the Charles A. Anderson Trust, EWM Enterprises, LP, and Kohala Makani Kai, LLC. With me today is Mr. Anderson representing both himself and EWM Enterprises and Kohala Makani Kai KNOWLES: Can you—excuse me, I'm sorry to interrupt you. Thank you. Because we are recording, so we want to hear them well HAITSUKA: —sorry. With me today is Mr. Charles Anderson representing both himself as Trustee of the Charles A. Anderson Trust and as the agent and representative of EWM Enterprises, LP and Kohala Makani Kai, LLC. KNOWLES: Thank you. Mr. Anderson, please speak into the microphone. Thanks. ANDERSON: I'm Charlie Anderson. Hello, everyone. KNOWLES: Good morning. Aloha. Applicant? FUKE: Good morning,Madam Chair KNOWLES: Good morning,Mr. Fuke. FUKE: I'm not an attorney. My name is Sidney Fuke. I'm here assisting the petitioner[sic], Ms. Jean Sunderland, and she and KNOWLES: Can you pull your mic a little bit closer? FUKE: Oh, sure. My name is KNOWLES: You can pull it. 10 EXHIBIT B FUKE: Yeah. I'm a planning consultant, soon to retire but still around. But anyway, I'm here kind of assisting the applicant,then Ms. Jean Sunderland and her associate will introduce themselves as well. KNOWLES: Thank you so much. Ms. Sunderland, yes,please speak into the microphone. SUNDERLAND: I'm Jean Sunderland, co-owner of Hawaii Island Retreat, Alm Pohaku Ho`omaluhia. And we are the ones requesting an amendment to our special use permit. I was involved in the original application, which was passed in 2001,prior to even owning the land or any of the neighbors buying their land. KNOWLES: Thank you. WATKINS: Aloha,my name is Damian Watkins. I am a co-trustee and co-owner, I guess, of Alm Pohaku LLC. KNOWLES: Thank you. Representing the Planning Department? DARROW: Aloha, Chair Knowles and members of the Planning Commission. Jeff Darrow, Deputy Planning Director, as you mentioned,representing the Hawaii County Planning Department. KNOWLES: Thank you. Planning Commission Rule 4-6(a) states that"person seeking to intervene as a party shall file a written request on a form approved by the Planning Director and accompanied by a filing fee of$200 no later than seven calendar days, prior to the Commission's first meeting on the matter." Staff,will you confirm that these petitions were properly filed, and that copies of the petitions were forwarded to the applicant in a timely manner? JACKSON: Yes, all three petitions were properly filed and provided to the applicant in a timely manner. KNOWLES: Thank you, Ms. Jackson. The first order of business regarding these agenda items is to determine whether to grant the petitions. Commissioners, please be reminded that the focus should be on why standing should or should not be granted, not on the merits of the application. Rule 4-6(b) states that the petitioner shall be admitted as a party if the following criteria can be met: (1) His or her interest is clearly distinguishable from that of the general public; or(2) government agencies whose jurisdiction includes the land involved in the subject request; or that they have some property interest in the land or lawfully reside on the land; or that even though they do not have an interest different from the general public, public generally, excuse me, that the proposed action will cause them actual or threatened injury in fact; or(5)persons who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, who practice those rights which are customarily and traditionally exercised for subsistence, cultural or religious purposes. I'll note that all three petitions state that their interest in this matter is clearly distinguishable from that of the general public. II EXHIBIT B With those rules established, I will ask Petitioner to explain—Charles A. Anderson first,please, Trustee of the Charles A. Anderson Trust—to explain why he should be granted standing, according to Rule 4-6(b). And I'm just going to confirm with Counsel of the time limit. [A brief inaudible conversation with Mr. Salas Ferguson] Great, thank you, no time limit. I mean, please keep it relevant and brief and all of those things, but. Thank you. HAITSUKA: Vice Chair, I'll speak on behalf of Mr. Anderson. So Mr. Anderson and his wife as co-trustees of their trust own property which is adjacent to the project site, and they also share roadway and utility easements with the project site property, and on that basis, they have,they have an interest which is distinguishable from the general public. Also, the project will impact them and potentially cause them damages. So, under that prong of the standing,the Andersons seek their petition granted. KNOWLES: Thank you. Does the applicant have any objections to this petition? FUKE: Madam Chair, I've spoken with Ms. Sunderland. The applicant then in light of the fact that the three petitioners are adjoining property owners, we believe that they do meet the criteria for standing, and so as such, we have no objection. But nonetheless, we'd like to comment that hopefully, through even going through the mediation process, even prior to that, if there is an opportunity to resolve a lot of these issues, we'd like to have them resolved. KNOWELS: Thank you,Mr. Fuke. Jeff, does the DARROW: The Planning Department has no objections to granting standing. KNOWLES: Thank you. Does the Commission have any questions for the petitioner or the applicant or the Planning Department? Given that there are no questions, I will call for a motion to grant or deny the standing to Petitioner. Commissioner, is there a motion for action on this petition? Commissioner Vitousek. VITOUSEK: I move that the petition for standing in a contested case hearing filed by Charles A. Anderson, Trustee of Charles A. Anderson Trust, in Agenda Items 1 and 2 be granted. KNOWLES: Do I have a second? DELA CRUZ: Second. KNOWLES: Thank you, Commissioner Dela Cruz. Any discussion? Commissioner Paishon-Duarte. PAISHON-DUARTE: Yes, I mean this is one of the things that,topic areas,that I'm more concerned have been described in some of the written testimonies, it's just around access, shoreline access, and I just want to understand if the applicant, perhaps from the Planning Department, they can describe or, describe the steps that have been taken. I just want to understand if shoreline access is not prohibited from the amendment that's being 12 EXHIBIT B KNOWLES: I'm just going to interrupt here, I'm sorry, Commissioner Paishon-Duarte. Because the petition that, the matter before us is only to determine whether or not the petitioner has standing to intervene in a contested case, we will not be engaging in a discussion on the merits or the issues related to access at this time. There will be ample time for us to cover those issues. PAISHON-DUARTE: Can you further elaborate,please? I don't quite understand what you are, you are saying. KNOWLES: So, I can defer to Counsel, if we need to do that, but essentially, the question before us today is to determine whether or not the petitioners have standing to intervene because their relationship to the subject property is clearly distinguishable PAISHON-DUARTE: I understand that, thank you. KNOWLES: —from the general public—thank you so much—or meets the other criteria of 4-6(b). Thank you. PAISHON-DUARTE: Understood, thank you. KNOWLES: Is there any other discussion? DELA CRUZ: Yeah, could you tell me a little bit moreI don't know if this is the right time to ask—in regards to the establishment that you guys have? Is that, this Retreat, is this some kind of resort or some kind of hotel? KNOWLES: Again, this is, sorry, Commissioner Dela Cruz, so today what we are deciding is whether or not the petitioner's interest in the subject property is clearly distinguishable from that of the general public or somehow meets the other criteria of 4-6(b). And I'm happy to read those again if you'd like. I think the position of Mr. Anderson and the other petitioners is that because they share access and utility easements with the subject property, that their interest in this matter is clearly distinguishable from the general public. DELA CRUZ: Understood, thank you. KNOWLES: Commissioner Vitousek. VITOUSEK: Mahalo. I believe that as a neighbor they are clearly, interests are distinguishable from that of the general public. KNOWLES: Absolutely. VITOUSEK: And as that's all that we are reviewing today, I think that it makes sense to move forward, and hopefully, they can work out any issues in mediation and through the contested case process. 13 EXHIBIT B KNOWLES: Thank you so much. Now that we've clarified that, we'll move on to the second petitioneroh, I'm sorry we need a roll call vote,my apologies. JACKSON: Okay, Commissioner Vitousek? VITOUSEK: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. JACKSON: And Chair Knowles? KNOWLES: Aye. JACKSON: Okay, motion carries, four-zero. KNOWLES: Thank you so much. With that motion carrying, we'll move along to the second petitioner,the petition of EWM Enterprises, LP by and through Charles A. Anderson. Again, I'd like you explain how your petition meets the standing criteria laid out in Rule 4-6(b). Thank you. HAITSUKA: Yes, the property owned by EWM Enterprises, LP is in the vicinity of the project site and, again, shares easements for access and utility purposes. KNOWLES: Thank you. Mr. Fuke? FUKE: Madam Chair, same comes as the first that we would have no objection. And likewise, for the third petition as well. KNOWLES: Thank you so much. Mr. Darrow? DARROW: Thank you,Vice Chair Knowles. The Planning Department has no objections to granting standing. KNOWLES: Thank you. Okay, any questions by the Commissioners? [None]I'll ask for a motionoh, Mike, you have a question? VITOUSEK: No, a motion. KNOWLES: Oh, thanks. 14 EXHIBIT B VITOUSEK: I move that the petition for standing in a contested case hearing filed by EWM Enterprises, LP in Agenda Items 1 and 2 be granted. KNOWLES: Do we have a second? DELA CRUZ: Second. KNOWLES: Thank you, Commissioner Dela Cruz. Is there any discussion? Seeing none, I will call for a roll call vote. JACKSON: Commissioner Vitousek? VITOUSEK: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. JACKSON: And Vice Chair Knowles? KNOWLES: Aye. JACKSON: Motion carries, four-zero. KNOWLES: Thank you. We will now address the third petition, the petition of Kohala Makani Kai, LLC, by and through Mr. Charles A. Anderson. I'll ask you the petitioner to state your rationale for standing. Thank you. HAITSUKA: Yes, Kohala Makani Kai, LLC owns a real property which is encumbered by easements, utility and access easements, that are used by the project site and other neighboring properties. So in that respect, they have an interest that is different from the public at large. Thank you. KNOWLES: Thank you. Mr. Fuke,the applicant? FUKE: Madam Chair, for the same reason, although this property is technically beyond the 500-foot radius, it does share the same easement, so likewise, we have no objection. KNOWLES: Thank you. Mr. Darrow? DARROW: Thank you. The Planning Department has no objections to granting standing. 15 EXHIBIT B KNOWLES: Thank you. Any discussion by the Commissioners—any questions? [None] Okay, then we'll move ahead, and I'd like to ask for a motion. VITOUSEK: I move that the petition for standing in a contested case hearing followed by Kohala Makani Kai, LLC in Agenda Items 1 and 2 be granted. KNOWLES: Can I have a second? DELA CRUZ: Second. KNOWLES: Thank you, Commissioner Dela Cruz. I'd like to call for a roll call vote. JACKSON: Commissioner Vitousek? VITOUSEK: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. JACKSON: And Vice Chair Knowles? KNOWLES: Aye. JACKSON: Okay, motion carries, four-zero. KNOWLES: Thank you so much. Seeing as the motion is carried, I think the next order of business for us is to determine who will conduct the contested case hearing. Our rules give us several options: the first option is that the Commission as a whole hears the contested case; the second option is that the Commission designates one or more members to act as hearing officers; and the third option is the Commission hires a hearing officer to conduct the hearing. Please keep in mind that even if the hearing is conducted by a hearings officer and not by the Commission as a whole, the final decision on the applications will be made by the Commission at a public hearing based on the case record and hearing officer's recommendation. I'd like to now ask the Commissioners for a motion on who should conduct the contested case hearing. VITOUSEK: I move that the Commission hire a hearings officer to conduct a contested case hearings for PL-SMA-2022-000018 and PL-SPP-2022-000018. KNOWLES: Thank you. Do I have a second on that motion? PAISHON-DUARTE: Second. 16 EXHIBIT B KNOWLES: Thank you, Commissioner Paishon-Duarte. Is there any discussion? PAISHON-DUARTE: Quick question. Are there any, fellow Commissioners, are there any disadvantages or—the motion, the option that's on the floor for us hiring a hearings officer to conduct and then making a final determination—do we see any disadvantages? KNOWLES: Did you have something to say, Commissioner Vitousek? VITOUSEK: Well, I would defer to the Deputy Director who'd have more experience in the contested case proceedings. KNOWLES: That's what II think the one of the things that comes into play is budget. Is that correct? DARROW: One of theI mean, it really has to do with the complexity of the matter; some cases are very complex. We've been involved in contested cases that generate voluminous amounts of time and material, and it may be way beyond what the typical, you know, commissioner can put aside to be able to do that. The benefit of hiring a hearings officer is allowing a separate review. They maintain all the records. They provide all that information and a recommendation to the Commission, and again, as Vice Chair Knowles mentioned, the final approval, or decision, is made by the Commission. So there,this one, I, I cannot, you know, give advice whether or not it's complex or not, that's something you folks need to decide, but it really has to do with looking at the entire matter and whether or not the Commission as a whole or individual Commissioners can make that commitment to be able to go through a contested case hearing. KNOWLES: Commissioner Vitousek. VITOUSEK: Well, I feel as though we wouldn't be able to really determine the complexity of this, having not received a background KNOWLES: I concur. VITOUSEK: or a recommendation on the matter. So, with that,we don't really know how much is going to be involved in it. And it's certainly beyond the amount of volunteer work that I would like to do, you know, it can be a full-time job for a period of time, so I wouldn't personally enjoy that. And I feel like a hearings officer who is being paid to do it would handle it effectively, and then any recommendations coming out of the contested case would still be the authority of the Planning Commission to say yes or no to those recommendations. So we are not ceding any authority by having a hearings officer; we are letting them do the leg work,work out all this detail in advance, and then make the final decision based on all the information that's been collected. KNOWLES: Yes. 17 EXHIBIT B PAISHON-DUARTE: Yeah, [Deputy] Director Darrow's comments are helpful in understanding for time constraint reasons, for subject matter expertise, technical reasons. Yeah, I see a lot of benefit in hiring a hearings officer. KNOWLES: Yes, I would agree with that. And I also think, you know, based on the little bit of testimony we did here today, as well as, you know, some of the planning machinations happening in Kohala, it would be helpful to have a hearings officer participate in this. Okay, so it sounds like there is a consensus. I will then call for a roll call vote on the motion that is pending on the floor. JACKSON: Commissioner Vitousek? VITOUSEK: Aye. JACKSON: Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: And Vice Chair Knowles? KNOWLES: Aye. JACKSON: Okay, the motion to hire a hearings officer carries. KNOWLES: Thank you. With that, business concluded on Items 1 and 2 at the meeting. I would like to call for a short recess, and our FUKE: Madam Chair? KNOWLES: Yes, Mr. Fuke. FUKE: On behalf of the applicant, may I make this special request? You know,the applicant's goal is to—twin,you know, had twin goals—one is to obviate a need for a contested case hearing, saves everybody grief, money, time, etcetera, etcetera, and secondly, at the end of the day is to still try to be,they started off as neighbors and they want to end up as being neighbors. And so the special request is to have this,you know,these two items on your agenda again for your February hearing, and hopefully, between now and that hearing we'll be able to kind of come to some amicable agreement to thereby obviate the need for a contested case hearing. You know, to date we have had the opportunity to hear some of the different testifiers' comments, and I think that, you know, we have made a concerted effort to, to address their concern, and I think we are pretty close. We don't know what the concerns of the petitioners are, and so hopefully, over the next two or three weeks we can hear their concerns and maybe arrive at some amicable solution. And 18 EXHIBIT B so the request is to have this matter agendized for your February hearing, and if it can't be, then, you know,then unfortunately,we have to go through a contested case hearing. KNOWLES: Thank you,Mr. Fuke. You remind me to do this job better by noting that the Planning Commission Rule 4-6 does require that all parties to a contested case proceeding participate, in good faith, in mediation first, before any contested case is heard. A mediator shall be selected jointly by the parties, and if you cannot do that, the Commission can appoint a mediator. Ms. Jackson over there in the green dress will contact the parties by email within a week to select a mediator. So, that should help facilitate matters based on your request,Mr. Fuke. Thank you. Okay, I think we are all set. With that, I'd like to excuse the witnesses, and we will take a brief recess. Thank you. These agenda items ended at 10:46 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 19 EXHIBIT B