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HomeMy WebLinkAbout2003-09-11 Planning Commission Minutes PLANNING COMMISSION COUNTY OF HAWAI`I MINUTES SEPTEMBER 11, 2003 The Planning Commission met in regular session at 9:00 a.m. in the King KamehamehaÓs Kona - Beach Hotel, Kamakahonu Ballroom IV, 755660 Palani Road, Kailua-Kona, Hawaii with First Vice-Chairman Earl Fujikawa presiding. PRESENT:Earl FujikawaABSENT & EXCUSED:Fred Galdones Bill Graham Jeffrey McCall Florence Kubota Bill Thibadeau Aurelio C. Mina, Jr. (Left at 3:10 p.m.) Francis Smith Hannah Springer Craig Masuda, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Staff Planner Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler representing Department of Public Works The First Vice-Chairman introduced the Commissioners and staff to members of the public. SMA 03-007The Commission took this item up at 9:03 a.m. with ERIC SOTOapproximately 23 people from the public in attendance. KAHULUI, NORTH KONA APPLICANT: ERIC SOTO (SMA 03-007) Continued hearing on a Special Management Area Use Permit application to allow the construction of a three and one-half story, 45-foot high, 12-unit multi-family residential development and related improvements on approximately 15,203 squ property is located on the west (makai) side of Alii Drive, adjacent to and north of the Sea Village Condominium complex, Kahului, North Kona, Hawaii, TMK: 7 (SEE EXHIBIT A) RECESSEDThe First Vice-Chairman called a short recess at 10:10 a.m. RECONVENEDThe meeting reconvened at 10:17 a.m. 1 REZ 03-010/The Commission took these items up at 10:17 a.m. SMA 03-005with approximately 30 people from the public in attendance. CLIFTOÓS KONA COAST, LLC ND OOMA 2, NORTH KONA APPLICANT: CLIFTO'S KONA COAST, LLC (REZ 03-010/SMA 03-005) Continued hearing on the following applications: a)Change of Zone from General Industrial 3-acre (MG-3a) to Project District for 83 acres of land. b)Special Management Area Use Permit to allow the development of a commercial Î residential complex consisting of offices, retail uses, multi-family housing, facilities for transient accommodations, and related improvements. The property is located along the west (makai) side of Queen Kaahumanu Highway (State Highway 19), approximately 2,100 feet south of the Queen Kaahumanu Highway Î NELHA nd Access Road, Ooma 2, North Kona, Hawaii, TMK: 7-3-9:22. (SEE EXHIBIT B) RECESSEDThe First Vice-Chairman recessed the meeting at 11:45 a.m. RECONVENEDThe meeting reconvened at 1:20 p.m. The agenda was amended to take up the following item at this tim the public who had to return to Honolulu. REZ 03-015The Commission took this item up at 1:20 p.m. with JAMES ANDapproximately 15 people from the public in attendance. MIHOKO MALIAN ST OOMA 1, NORTH KONA APPLICANTS: JAMES AND MIHOKO MALIAN (REZ 03-015) Change of Zone application for 42.793 acres of land from an Agricultural 5-acre (A-5a) to a Family Agricultural 2-acre (FA-2a) zoned district. The property is located adjacent to and north of the Kona Hills Estates Subdivision, approximately 1,900 feet west (makai) of Highway 190, st Ooma 1, North Kona, TMK: 7-3-07:40 and 41. (SEE EXHIBIT C) 2 REZ NO. 694 ANDThe Commission took up the following items simultaneously at SPP NO. 6492:20 p.m. with approximately 20 people from the publi PAANUI attendance. PARTNERSHIP STND HOLUALOA 1 & 2, NORTH KONA APPLICANT: PUAANUI PARTNERSHIP (REZ NO. 694) Amendment to Condition B (deadline to secure Final Plan Approval) and Condition C (construction deadline) of Change of Zone Ordinance No. 91-91, which rezoned one-acre of land from an Agricultural 1-acre (A-1a) to a Village Commercial 1-acre (CV-1a) zoned district. The area involved is located on the makai side of the North Kona Belt Road, Holualoa Village, stnd Holualoa 1 and 2, North Kona, Hawaii, TMK: 7-6-08: portion of 5 (formerly TMK: 7-6-08: portion of 10). APPLICANT: PUAANUI PARTNERSHIP (SPP NO. 649) Amendment to Condition No. 5 (construction deadline) of Special Permit No. 649, which allowed the establishment of a 10-room inn on 3 acres of land situated within the State Land Use Agricultural District. The area involved is part of the Holualoa Inn complex situated on the stnd makai side of North Kona Belt Road, Holualoa Village, Holualoa 1 and 2, North Kona, Hawaii, TMK: 7-6-08: portion of 5 (formerly TMK: 7-6-08: portion of 10). (SEE EXHIBIT D) RECESSEDThe First Vice-Chairman called for a short recess at 3:1 RECONVENEDThe meeting reconvened at 3:19 p.m. SPP 02-010The Commission took this item up at 3:19 p.m. with DOUTOR COFFEEapproximately 8 people from the public in attendance. HAWAII CO., INC. ND HIENALOLI 2, NORTH KONA DOUTOR COFFEE HAWAII CO., INC (SPP 02-010) Request by Doutor Coffee Hawaii Co., Inc. for Reconsideration or Rescission of Planning Commission's Action taken during its meeting on August 1, 2003, on the Special Permit application to allow public tour of the existing coffee farm, proposed retail sales of non- agricultural products, and related parking area on approximately 12 acres of a 28.47-acre parcel situated in the State Land Use Agricultural District. The property is located on the west (makai) side of Mamalahoa Highway, approximately 300 feet south of the Keopu Cemetery, Hienaloli nd 2, North Kona, Hawaii, TMK: 7-5-11: portion of 24. 3 Parties to the proceedings in attendance were R. Ben Tsukazaki representing Doutor Coffee, Dennis Krueger representing Dean Yokoyama, Mikahala Roy representing Kulana Huli Honua and Chris Yuen representing the Planning Department. Mr. Hayashi gave a brief chronology of the application. Mr. Tsukazaki explained that the same day the Commission took action on their application on st August 1, they learned that one of the Commission Members who had a concern on safety misunderstood where passengers embarked and disembarked from the buses, and they felt there may have been other Commissioners who relied on that inaccurate information and voted against the main motion to allow a maximum of one large bus be allowed per day if necessary. He noted that the prohibition against any large bus poses a threat to the long-term feasibility of his clientÓs operation; and they would like to level the playing field as his client is the only one who is prohibited from using a large bus to bring visitors to a coffee farm, referring to the evidentiary record Exhibits 4-14. He said some of his clientÓs vendors have indicated that if they cannot occasionally use a large bus when itÓs economically necessary for them, they will take their business elsewhere where other coffee farms do not have this problem. He said he seeking a motion from a Commissioner regarding a reconsideration or rescission of the Planning CommissionÓs action. He noted that Planning Commission Rule 4-27 states the Commission shall not reconsider its action after final decision is issued, but final decision was not issued or served when their request was made and, in addition, Rule 25 of the RobertÓs Rules of Order allows for suspension of rules at the discretion of the Planning Commission. Mr. Tsukazaki requested a continuance of this meeting: (1) so that a representative from Taikobo Hawaii Inc. can explain the realities of when it is sometimes necessary to use a large bus and confirm the absolute prohibition of any large buses puts his client at a clear disadvantages against other coffee farms; (2) to allow Corporation Counsel, if need be, to address issues raised today, and (3) to allow the applicant an opportunity to address the DepartmentÓs concerns about any safety issues relating to the use of a large bus. He said they were trying to find an answer because the only other alternative is to even the playing field by filing complaints against other operators, which they are trying to avoid. As Mr. Tsukazaki attempted to clarify for Commissioner Kubota that there was no evidence on the record that the buses were loading and unloading people on the highway, the public interrupted and said they have witnessed it and it was being done all the time. The First Vice- Chairman asked for order in the meeting. Mr. Tsukazaki further clarified when there is deliberation of a motion, itÓs not for the parties to speak during that period, therefore none of the parties were offering any type of argument since argument was done. Mr. Tsukazaki pointed out his concern of the public being allowed to offer testimony under the Sunshine Law because it is a public meeting, yet at the same time the nature of that proceeding is a contested case and parties do not have the right to cross-examine that testifier. He felt it was procedural error for the Commission to be making a decision based upon information that is not in evidence. 4 The First Vice-Chairman expressed his appreciation that the parties were not mentioning specific names. Commissioner Graham pointed out that the written motion seemed to relate to the bus situation and now there is concern that public testimony is being offered which is not part of the contested case hearing and there can be no cross-examination. Councilman Tyler urged the Commission not to make a procedural error and at least take a vote on whether or not they are going to consider Mr. TsukazakiÓs request, noting arguments are being made right now with no motion on the floor. Commissioner Mina left the meeting at this time, 3:10 p.m. Mr. Tsukazaki questioned Mr. TylerÓs standing in this matter as the First Vice-Chairman has not called for public testimony. It was moved by Kubota and seconded by Commissioner Springer tha executive session with its counsel to discuss potential legal liabilities, as well as procedural concerns. Ms. Masuda said these matters for discussion were entirely appropriate for an executive session, but cautioned about going into the merits of the case, which would be strictly off-base. Councilman Tyler noted that since Commissioner Mina was not in attendance, there were insufficient votes for the motion to pass. The First Vice-Chairman noted Commissioner Mina left the meeting as he had taken ill. The First Vice-Chairman asked for a motion to continue the hearing because of a lack of a CommissionerÓs vote to go into executive session. Commissioner Kubota noted that one of her concerns was that by having taken action to limit the bus situation, the Commission had, in essence, inadvertently developed an unequal playing field. Mr. Van Pernis interrupted and said that that was not the case. Commissioner Kubota attempted several times to speak and was interrupted by Mr. Van Pernis. Commissioner Kubota and the First Vice-Chairman informed Mr. Van Pernis that he should allow Commissioner Kubota to present her testimony without interruption. Commissioner Kubota continued on by saying she wanted to have the executive session to find out the liability factors so she might be better able to take a position on the request for continuance. Mr. Masuda noted the question of possible litigation in the future is a legitimate purpose for an executive session. Commissioner Kubota then asked for Mr. Van Pernis to be called upon now to say what he wants to say; however, Mr. Masuda noted this could not be done as there is already a motion on the floor. The First Vice-Chairman hit the gavel as Mr. Van Pernis attempted to speak. Mr. Van Pernis asked that Mr. Krueger be allowed to speak as the Commission is hearing only one side of the story. The First Vice-Chairman informed Mr. Van Pernis that anymore outbursts and he will be asked to leave the meeting. The First Vice-Chairman noted that as there is not enough votes for an executive a session he asked for a continuance. Several people from the public expressed disappointment as they have been in the audience all day. Mr. Masuda reviewed with the First Vice-Chairman the motions made thus far. The First Vice-Chairman said as there is not the required votes for an executive 5 session, the hearing will be continued when the Commission has a good body of people and after understanding the facts. Mr. Masuda said people cannot testify at a continued meeting unless the motion for reconsideration is passed. There was a public outburst in having further discussions without Mr. Krueger being allowed to speak. Mr. Masuda said that the public has not been recognized by the First Vice-Chairman at this point and noted the First Vice-Chairman will so indicated w speak. The First Vice-Chairman asked the public to calm down and Mr. Van Pernis stated people should be telling the truth. Mr. Masuda agreed with Mr. Krueger that under RobertÓs Rules of Order only a majority of those present is required for a motion to pass; however, there are the overriding County Ordinance as well as the State Law. Director Yuen asked to speak before the Commission takes action to continue the matter. The First Vice-Chairman said the hearing will be continued because there was insufficient votes for the executive session which the Commissioners felt their questio be addressed. Commissioner Kubota at this time spoke against the continuation. Mr. Masuda agreed with Commissioner Springer that any action taken today requires five votes. Mr. Masuda, agreeing with Mr. Yuen, said if there is no motion made by any of the Commissioners to reconsider the CommissionÓs prior action, then the request on the agenda dies. He added that if the Commission wishes to revisit its prior action, it needs to be publicized in the newspaper for a future meeting. Mr. Graham said he did not think a continuance was necessary since Commissioner Kubota has now indicated the hearing can continue without an executive session, unless there is another Commissioner who felt otherwise. In response to Commissioner SpringerÓs inquiry, Mr. Masuda clarified that, according to RobertÓs Rules, what is before the Commission is a motion to rescind and not reconsideration since reconsideration can only occur at the meeting in which the vote is taken; however, Mr. Hayashi has informed him that it has been the practice of the Commission to reconsider at times outside of the day of the hearing. Mr. Krueger pointed out that the Commission rules say they shall not reconsider a vote after the formal decision has been; therefore as indicated by Commissioner Springer the only real motion is one for rescission. He felt the Commission should first hear from the parties as far as arguments on whether or not to rescind the action previously taken. Mr. Tsukazaki noted a motion for rescission or to amend something can be made by any member of the Commission, it does not have to be a prevailing party. He said they have stated motions for reconsider and rescission in their request to the Commission and those motions have different limitations. 6 Mr. Yuen at this time complained of allowing only one party to jump in and advise the Commission while the rest of the parties eager to say something are not being recognized. Mr. Masuda at this time said there is no time limit on making a motion to reconsider after adoption of a measure to which they are applied, and they can be moved by any member of the Commission. Commissioner Graham said as it seems a motion to rescind or not is in order and suggested the Commission solicit comments from the other parties before action is taken. Mr. Masuda said the Commission first has to decide whether it will even go to the issue of rescission first. Commissioner Kubota pointed out that as she was not an attorney and was receiving conflicting advice, she was not sure who was right; and she stated she did want to hear from the parties and public. For Commissioner KubotaÓs information, Mr. Masuda said if she makes a motion to rescind she was not obligated to vote one way or the other for the motion, but that it was just to open it up for discussion. RECESSEDUpon Mr. MasudaÓs request, the First Vice-Chairman called for a short recess at 4:22 p.m. RECONVENEDThe meeting reconvened at 4:31 p.m. Mr. Masuda said after consultation with more experienced people, he is advising the First Vice- Chairman to allow public testimony because the public has a righ agenda. He said although the request before the Commission is in the form of a motion for reconsideration or rescission, in actually functions as a motion to amend the conditions, which has to be properly agendized and noticed for a future date. He added that it was within the powers of the First Vice-Chairman to rule whether there is an attempt to amend the special permit conditions, and if the request was properly agendized. Mr. Yuen said after considering Mr. TsukazakiÓs evidence on why the buses should be allowed, the Commission agreed with the Hearings Officer and Planning Director that the permit should be granted with no big buses. He said very often, as in this case, people who are on the losing side will want you to change that decision and he would recommend the Commission stick with its prior decision. Mr. Masuda at this time interrupted and said he felt Mr. Yuen was going into improper grounds by telling the Commission how to vote, to which Mr. Yuen said the Commission essentially heard Mr. TsukazakiÓs arguments. Mr. Yuen then continued on by saying the Commission is the main party when there is an appeal of such a decision and its Corporation Counsel will defend them, except in extraordinary cases; and he suggested the Commission take no action on this particular request and let the matter die. In response to Commissioner SpringerÓs inquiry, Mr. Masuda said the applicant is free to appeal the CommissionÓs decision if he so wishes. 7 Mr. Masuda said it was his opinion that what is actually requested of the Commission is a motion to amend the conditions of the special permit, to which Mr.Tsuakazaki said that would mean the Sunshine Law has not been complied with for todayÓs meeting and, therefore, any action taken today would not be valid. He then stated at this time that because his client is concerned about an even playing field, they would withdraw this request if there is a commitment from Mr. Yuen to send cease and desist notices to all the coffee farms that are doing coffee tours, along with those who use the large buses, within 90 days, during which time his client can still operate his tours with the buses. As to the propriety of doing that, he said the Planning Department has done this with regard to bed and breakfast operations. The First Vice-Chairman asked for a motion to properly agendize this application. Mr. Krueger said Mr. TsukazakiÓs request was agendized exactly as he stated it and properly noticed for todayÓs hearing. He said the question is whether or not there is any motion to rescind the previous action, which would need to be properly agendized and for which, at this point, there is no motion. Mr. Krueger said the only reason the Hearings Officer allowed Exhibits 4-14 into the record were to indicate that there were other people in Kona conducting tours and it was not to indicate the level of playing field because issues such as the number of people allowed on a tour, whether buses are allowed, etc. were never addressed. He added that the Hearings OfficerÓs findings does indicate that people touring the Doutor facility do board the buses from the street side. Mr. Tsukazaki questioned the ruling of the First Vice-Chairman o properly agendized as it has to do with whether anything being done today is valid. Commissioner Graham said it appears todayÓs meeting has been properly agendized as it states exactly what Mr. Tsukazaki is requesting; therefore, the Commission can proceed with whatever action it feels it needs to take on the request and, also, the public could also comment on the agendized item. Mr. Masuda said if the intent is to change the conditions of the special permit, then that has to be properly agendized for a future meeting; and what is currently before the Commission is whether to rescind its prior action, in which the public should be allowed to provide testimony in that regard. Adjoining property owner Mark Van Pernis apologized for his outbursts. He urged the Commission not to rescind its decision and to reject the level of playing field argument, which is a shibai, as the applicant is the only coffee farm tour operator that is using a public highway for private use by loading and unloading passengers, noting the highway is unsafe as it has no shoulders on the mauka side and a drop on the makai side. He questioned the credibility of the applicant and said he was conned out of a contested case as after the deadline for filing a contested case the applicant changed their agreements that they would not conduct any weddings except for Hawaii employees, not have liquor on the property, and only have public gatherings related to the Kona Coffee Festival. He stated that this past Labor Day weekend there were two large buses on the highway despite the applicantÓs promise they would obtain approval from the 8 Commission first, noting the neighbors will also confirm that the applicants continue to do tours on a regular basis. He questioned why the Commission was making the neighbors spend their time, money and effort to enforce a special permit. He said he purchased his property for ag uses and not to be located next to a commercial tourist trap where hundreds of people are making noise and there is serving of food. He noted the applicant is asking for vague conditions so i would be very difficult to enforce any conditions, such as if th double up the next day or does it mean they have to count to ensure there are no more than 80 passengers. Stephen E. Heiman, adjoining property owner on the north said the issue is one of reasonableness and fairness to people who purchased their agricultural property with the expectation that they would have more privacy than having hundreds of people standing at a gazebo that overlooks his property, there would not be loud noise or amplified sound for music or entertainment, which he considers commercial in nature. Diane S. Heiman said she has witnessed buses unloading and loading clients on the highway and echoed her husbandÓs concerns. She said the facility should be located in an area where people can enter and exit in a manner that is safe for them and for those who have to traverse on the highway, and in a manner that does not disturb their neighbors. Curtis Tyler apologized for his unsolicited comments but noted he wanted to make sure no laws were broken and to ensure that the County does not end up in litigation. He said Mr. Tsukazaki opened the door to this discussion and said loading and unloading people on the highway is an unsafe situation for all the people that live and traverse that area. He said the CommissionÓs counsel has said that the Commission cannot reconsider its decision and noted the Commission is having a verbal protracted discussion about something that is not on the floor, which cannot be done unless there is a motion. He said all the Commission has t seconded and vote on the motion unanimously since there are only five members currently in attendance. For the CommissionÓs information, Mr. Tyler said Commissioner KubotaÓs request for an executive session was a legitimate request, but there was not the required six votes. He said the Commission cannot continue the hearing just because they do not like how the vote might turn out, referring to a Board of Land and Natural Resources case that has been in the court 10-15 years. Mr. Krueger said he believes the wording of one of the conditions allows the applicant to conduct other things on the property, like craft fairs; however, he would like to rescind that wording and limit that language to just the Kona Coffee Festival, if necessary. He added he believes a wording of one of the condition excludes a 55 decibel reading of music at the barbeque area, which he would like to have included. In response to the testimony of Mr. Van Pernis, Mr. Tsukazaki said he has in his possession evidence contrary to Mr. Van PernisÓ statement that his client is the only tour operating facility that uses buses, noting the evidence in this case shows the area where the large bus parks is out 9 of the right-of-way. He added Mr. FukeÓs correspondence to Mr. Van Pernis clearly indicates there would only be a settlement agreement if there is a universal settlement. Mr. Tsukazaki, at this time, asked the First Vice-Chairman to not let Mr. Van Pernis interrupted him as he was just trying to correct the record. In response to Mr. HeimanÓs concern that large buses will bring large crowds, Mr. Tsukazaki noted the permit condition limits the total number of visitors per day to 80, and the large bus evidence indicates it could carry 55 to 60 people. He said the incident about the Labor Day illustrates one of the difficulties they have where as the tours are arranged by other companies his client does not have prior knowledge of the tour. Regarding the concerns of Ms. Heiman and Mr. Krueger, Mr. Tsukazaki said the 55 decibel reading condition imposed upon Doutor is a residential decibel, whereas the neighborÓs agricultural level is 70; and that it was DoutorÓs understanding that the decibel level pertains to any sound coming from the operations relating to sales and tours. Mr. Tsukazaki, at this time, informed the Commission of its intent to resubmit a more accurate request at a later date. In response to the inquiries of Mr. Tyler and Mr. Krueger, Mr. Yuen clarified that since no one has made any motions and there is no interest by the Commission in entertaining the request made by the applicant, there is nothing further for the Commission to do on this agenda item. The First Vice-Chairman stated the public testimony and the hearing on this item have been closed as no motions were made. At 5:24 p.m., the Commission took up the following matter: PRESENTATION ON KONA CIRCULATION PLAN AND ROADWAY ISSUES - Mr. Hayashi noted as the Deputy Planning Director had to return to Hilo, this matter will be deferred to a later date. He added that copies of the plan have been distributed to the Commission (SEE EXHIBIT E). ADMINISTRATIVEThe following were discussed under administrative MATTERSmatters: Ako/Anjo v. Vipassana Hawaii Meditation CenterÓs Permit Î Mr. Masuda said the Hawaii Supreme Court denied the petition for certiorary. Appeal of Ako Anjo v. Watkins/SunderlandÓs Permit Î Mr. Masuda said the parties will not ask for oral argument and the Court will rule on just what were subm Businesses Functioning Without Permits Î In response to Commissioner KubotaÓs inquiry, Mr. Yuen strongly advised the Commissioners against getting involved in the enforcement aspect of filing complaints on businesses that are functioning without permits, noting a 10 Commissioner could be disqualified from acting on a permit if a business comes in to obtain the required permit. Mr. Masuda said the Commission would mixing roles as the Commission performs in an adjudicatory role and not enforcement role. MINUTESAt 5:24 p.m., the Commission took up the following minutes: June 20, 2003 Î The Commission deferred approval of the minutes. July 3, 2003 Î It was moved by Ms. Springer, seconded by Mr. Smi by a voice vote that the minutes be approved as circulated. July 18, 2003 Î It was moved by Ms. Kubota, seconded by Ms. Spri carried by a voice vote that that the minutes be approved as circulated. August 1, 2003 Î The Commission deferred approval of the minutes ADMINISTRATIVEThe following were discussed under administrative MATTERSmatters at this time: ERIC SOTO (SMA 03-007) - As it was explained by staff that they will give individual notification to members of the public who signed up to testify, it was moved by Mr. Graham and seconded by Mrs. Kubota that the application of Eric Soto be taken up at the Planing nd Commission meeting of October 2 at the Ohana Keauhou Beach Resort. Motion was unanimously carried by a voice vote of all Commissioners in attendance. Planning Commission Meetings - Mr. Hayashi announced the following meetings were nd scheduled for September 22 in Hilo and October 2 and 3, 2003 at the Ohana Keauhou Beach Resort. ADJOURNMENTThere being no further business, it was moved by Commissioner Kubota and seconded by Commissioner Graham that the meeting be adjourned. Motion was unanimously carried by a voice vote of all Commissioners in attendance, at 5:34 p.m. Respectfully submitted, Sharon M. Nomura, Secretary A T T E S T: Earl Fujikawa, First Vice-Chairman Planning Commission 11