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HomeMy WebLinkAbout2003-07-03 tseven PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT July 3, 2003 A regularly advertised public hearing on the application of SEVEN AND SONS, LLC (SMA 03- 003) was called to order at 10:49 a.m. in the Ohana Keauhou Beac 78-6740 Ali`i Drive, North Kona, Hawai`i, with Chairperson Fred Galdones presiding. PRESENT:Fred Galdones ABSENT & EXCUSED: Francis Smith Earl Fujikawa Bill Graham Florence Kubota Jeffrey McCall Aurelio C. Mina, Jr. Hannah Springer Bill Thibadeau Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Staff Planner Phyllis Fujimoto, Staff Planner And approximately 16 people from the public in attendance. APPLICANT: SEVEN AND SONS, LLC (SMA 03-003) Application for a Special Management Area Use Permit to allow the development of a 10-unit condominium project consisting of two 2-story buildings and related improvements. The property is located approximately 67 feet east (mauka) side of Alii Drive, at its closest point, and stnd approximately 1,650 feet north of Holualoa Bay, Holualoa 1 and 2 Partition, North Kona, HawaiÒi, TMK: 7-6-14:26. GALDONES:Commissioners, we are on Agenda Item No. 3. The applicant is Seven and Sons, LLC (SMA 03-003). This is an application for a Special Management Area Use Permit to allow the development of a 10-unit condominium project consisting of two 2-story buildings and related improvements. Norman. HAYASHI:If I may direct your attention again to the overall location map on the board. The subject property is indicated in blue, or this blue dot. This is Alii Drive. This would be the Keauhou direction, and this would be Kailua-Kona. Kuakini Highway is located on the mauka side of this map. Although itÓs not fully visible from your vantage point, there is an unnamed road located adjacent to the subject property and provides access to the property. It intersects with Alii Drive. The applicant is requesting the construction of a 10-unit multiple residential structure. There would be two structures. One of them would be on the makai side. Again, this is, Alii Drive would be located down here, and this would be the unnamed access road. The property, the applicant is proposing, again, a structure, on the makai building. There would be six units. And these structures would be two stories in height. And the mauka building would be, consist of four units. The height of the buildings would be approximately 28 feet feet. Regarding the unnamed road that provides access to the property, that currently is a government road which is not maintained by the County. And the pavement width of the roadway varies from approximately 20+ feet on the, the entrance with Alii Drive and at some points it becomes smaller and goes down to about 14 feet. The Director is recommending approval of the SMA Use Permit application subject to conditions. Initially we had submitted to you our recommendatio that would require improvements to the unnamed road. That has since been deleted. And we have submitted to you, provided you with the revised recommendation and revised conditions. Are there any questions at this time? GALDONES:Commissioners? SPRINGER:Mr. Chairman? GALDONES:Commissioner Springer. SPRINGER:Given the discussion that we had on the previous application with regard to improvements to the road fronting that property, can you explain to us why the deletion of the condition for this? YUEN:Good question. We originally put in a road improvement condition. The applicantÓs representative correctly pointed out to us that the property is already zoned and tha theyÓre only, that theyÓre going for an SMA Permit. There was a case called Topliss versus County of HawaiÒi that was decided about 10 or12 years ago by the Intermediate Court of Appeals. What the Topliss case said was that you could not, that traffic was not an SMA issue unless the traffic problem created an environmental or ecological problem within the SMA area, within the coastal zone. In all honesty, we, although the access, and the difference between this situation and the one that we just dealt with is that this property is already zoned for the use. When a property comes in for rezoning you can put any reasonable conditions on the property that deal with any of the problems that are created by the rezoning, such as, for example, traffic. However, in the SMA permit there is a list of objectives in the SMA law and a list of kinds of things you can consider, and traffic itself is not listed. And, again, unless you had a situation where the traffic would create an environmental or ecological problem, that might happen with a bigger project; but this, itself of 10 units, we could not say that itÓd cause an environmental or ecological problem. There is another possible handle in the SMA law, which is that youÓre supposed to minimize hazard to life and property. And if we felt that it would be unsafe to evacuate the site, we could have put the traffic condition on with that. That was also a stretch 2 given the facts of the situation that they would have difficulty with a 10-unit condominium on this roadway. That does not mean though that we are not going to have any road improvements connected with this. If this is approved they would still have to get something called plan approval, which is an administrative thing that is done within the Department. It does not come to the Commission or the Council. Under plan approval, we can, it says that the Department is supposed to make sure that existing or proposed traffic movements are not hindered or obstructed, and we will put on some road improvements at the tim GALDONES:Commissioners? FUJIKAWA:Yeah, I have a question on this particular one on the conditions, Item No. 4 where it says install street lights. What street lights? Is it traffic signal or street lights itself? HAYASHI:This would be the lights that are on the poles. FUJIKAWA:ItÓs not a signalization -? HAYASHI:ItÓs not a signalization, no. GALDONES:Commissioners, any further questions of Norman? Hearing none, will the applicant or representative please come forward. Mr. Mooers, youÓre still under oath. Have you received the background report and recommendation? MOOERS:Yes, I have. GALDONES:Any comments? MOOERS:No, not with the amended version, no. GALDONES:Commissioners, any questions of Mr. Mooers? KUBOTA:I donÓt have a question, Mr. Chair, but I do have a comment that IÓd like to make and put on record. May I? GALDONES:Do you wish to make a comment at this time? KUBOTA:Well, isnÓt this the last of the input? GALDONES:No. I have testifiers. KUBOTA:Oh, IÓll wait. GALDONES:Thank you. Being that thereÓs no questions of Mr. Mooers, Mr. Mooers, there are two individuals who wish to testify, Walter Kimura and Curtis Tyler. Will you 3 gentlemen please step forward. Mr. Tyler, you have already been sworn in. Mr. Kimura, could you please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the HawaiÒi County Planning Commission? KIMURA:Yes, I do. GALDONES:Mr. Kimura, could you please state your name and your resident address. KIMURA:Walter Kimura, Nalani Street, Kailua-Kona. GALDONES:Mr. Kimura, you may begin your testimony. KIMURA:All right, IÓm here speaking on behalf of the Kobayashi family, one of the daughter-in-laws is here in the back. If you look at the map where the proposed project is, the entryway, the road Mr. Hayashi was talking about, the Kobayashi owns property fronting this project, and they have the Banyan Mart fronting Alii Drive and several homes in the back. And they use this entry, which is a no named road, I guess. But when I called the Planning Department, also the Finance Director, they told me itÓs a government road. But whether itÓs County or State, itÓs unknown at this time. So their concern is the safety and traffic that will be added to this roadway. ItÓs right now substandard. And I remember back when Jack Kobayashi, heÓs already deceased, started that property. He built his home in the Banyan Mart, the road was like a dirt road; and I think with whatever means he had he did some asphalting and so forth. But it is still substandard and the family uses that road. And their concern is, not that theyÓre against the project itself per se but the safety of that highway, the noise, not highway, the roadway, the noise and the added traffic it will create. And As Mr. Yuen pointed out SMA project along the shoreline, just in case youÓve got a tsunami, you know, thatÓs the egress and exit there. And weÓre just concerned about the safety when we have a tsunami, you know, to get out of that place. So whether itÓs the developer that needs to add to improving the road or the government, we hope that something will be done to that roadway. Thank you. GALDONES:Thank you, Mr. Kimura. Questions of Mr. Kimura? Norman, are there any, I may have missed that, any places for, is it part of the conditions that road is improved? HAYASHI:No, we deleted that condition. GALDONES:Oh, thatÓs the one that was deleted? HAYASHI:Correct. GALDONES:Are there any future plans on addressing that substandard road? HAYASHI:Perhaps at the time of plan approval review we may look at the, that issue. 4 GALDONES:Thank you. Mr. Tyler? TYLER:Thank you, Mr. Chairman. My name is Curtis Tyler and IÓm morning representing himself as well as district, Council District 8, which used to include part of this area but does not include it at the present time. This is in Council District No. 7, and I donÓt presume to speak for Mr. Reynolds. Thank you for the opportunit morning on this SMA application. Indeed Mrs. Kubota raised a, I think it was she who raised the question about, or maybe, no, she didnÓt, somebody else did, about the removal of this condition, and the Director has indicated, cited the Topliss case. ItÓs very interesting to have the juxta position of these two projects, the previous Mr. KabumotoÓs which is a rezoning. As the Director pointed out this is an SMA, not a rezoning, and he felt that imposing the roadway conditions would be counter to the decision, the Topliss decision. Actually, that, in my estimation renders an absolutely absurd result. Mr. Kimura has spoken of personal experience. I knew Mr. Kobayashi and his family, and IÓm very, very familiar with this roadway, and if you have not, well, if we call it a roadway. If you will go down there, you will see that it is not only substandard but it is hazardous. It would be extremely hazardous in the time of a tsunami evacuation or any kind of hurricane. The applicant has noted that at the peak hour there will be 10 cars per hour. Think about the previous application. Again, I understand thereÓs a difference here, but your job is to represent the public in this case. You are final arbiters, unless -. ThereÓs no contested case is there, Mr. Chairman, on this, thereÓs no application? GALDONES:ThereÓs none. TYLER:So youÓre the final arbiters in this case. And under 205A, you have, as you well know, each of you have significant obligations to protect the public interest. And, as Director Yuen pointed out correctly, one of the objectives required by law is to reduce hazard t life and property from tsunami, storm waves, stream flooding, erosion, subsidence and pollution. And as the previous speaker, Mr. Kimura, has already pointed out and have I, this is going to be, further congest the area. And not to require any improvements, this is a very short road, actually, of any kind would seem to be contrary to trying to reduce hazard to life and property. And I wonÓt say more about that because that will be your decision. But I urge you to very carefully look at objectives and policies and guidelines, all of which must be adhered to, otherwise you cannot and shall not, according to law, approve this application. I would now like to turn to the objectives of scenic and open space resources, which is objective number 3. And it says to, ÐProtect, preserve, and, where desirable, restore or improve the quality of coastal scenic and open space resources;Ñ and No. 4, the coastal ecosystems, ÐProtect valuable coastal ecosystems,Ñ etc. And youÓre familiar with those. And the applicant has stated that this project will have no impact on the coastal resources, makai or mauka, Ðwill not adversely impact any recreational or visual coastal ecosystems,Ñ and IÓm quoting from page 15 of the applica the no impact. And if there are any drywells contemplated, whic 5 will have an impact. It is my recommendation that you incorporate into your, should you choose to approve this application, to incorporate that the applicant use the best available technologies to ensure that no nonpoint source pollution impacts any, any of the coastal resources. As youÓre well aware, 205A-26(2) mandates you to consider the potential cumulative impact of individual developments. And while all of you, none of you, excuse me, I d Commission at the time some of the makai ones were approved, you do have an opportunity now to, with special, with best available technologies, to address this. And in that regard, I think the most glaring omission that I see here with respect to the conditions is thereÓs no, unless I missed it here, I read it rather hurriedly, I donÓt think I saw a condition to connect to the County sewer system. Is it in the condition? MINA:Condition 6? TYLER:IÓm sorry. I donÓt see it in Condition 6, but that addresses fugitive dust and runoff. IÓm sorry, Mr. Chairman, may I ask you a question. Is it in here? Did I misread this? I donÓt think I see a condition to connect to the sewer. Where is it, Mr. -? HAYASHI:ThereÓs no specific condition that says you need to connect to the sewer system; however, there is a condition that states that the applicant would have to comply with the requirements of the State Department of Health, as well as -. TYLER:Right. HAYASHI:I think itÓs Condition No. 10. TYLER:ThatÓs Condition No. 11. ThatÓs a standard condition; and thatÓs in most of these. However, in addition to those conditions, there are specific conditions, and IÓm obviously not as familiar with SMAs as you are because youÓre th come to the Council. But I am familiar with rezonings that contain this condition as well as theyÓll be required to connect to the sewer. Now if there is no lateral right there, which I suspect there may not be even though the pump is directly adjacent to this, they might not be obligated to connect under law. And I am asking you to obligate them to connect to the sewer because this is a 10-unit condo and it will have impact. And the fact they are adjacent to, directly adjacent to this, it seems to me should make it easy for them to tap into that as opposed to, you know, running a long line down. But the absence of that seem to be quite conspicuous to me. And if you donÓt specifically say it, I believe they wonÓt be obligated to do it if thereÓs no lateral there, and if thereÓs no lateral; and I donÓt know if thereÓs no lateral. But it seems to me they would have a huge impact if they put in a septic system as opposed to connecting to a sewer that is directly, the pumping station for which is directly adjacent and makai of this property, or slightly to the southwest. Anyway, I urge your caution and I would note that the Kona Traffic Safety Committee has also submitted to you testimony, as has the HawaiÒi County Police Dep 6 situation. I think that some of you know, perhaps all of you, this roadway is directly, almost directly adjacent, mauka of and adjacent to Banyan Surf Spot; and itÓs very, very congested in this area. A security guard for the Bali Kai Condominums was recently killed trying to perform his duties there because the Department of Public Works refuses to allow a sidewalk in that area, right, itÓs a little bit to the north, but -. I think each of us knows that while 10 units may not seem a lot when weÓre looking at some of these other very large developments, the cumulative impacts of these have been disastrous, disastrous to Kona, and especially along the coastline. And I would finally say, or two comments, finally, Mr. Chairman. The first one is that I would, again, reiterate that 205A is in response to the Federal law, Coastal Zone Management Act, which applies not only to the shoreline and the SMA area but to every square inch of HawaiÒi nei, from the top of the mountain to the bottom of the ocean. A made, ÐOh, it doesnÓt affect the makai coastal zone, it doesnÓt the views.Ñ But donÓt forget the mauka portion. And if youÓll think about the ahupuaa land use model, I think it will become apparent. My final comment is that I hope that the applicant will consider that while the Topliss case may create some possible loopholes to, or opportunities to avoid making improvements to the infrastructure, the moral and proper thing to do is to make a contribution to this community from which you will benefitting, from which you will also be taking, to ensure that the public welfare is enhanced and not further compromised, which is the concerns that some of the surrounding residents as well as the Kona Traffic Safety Committee and himself have made. Thank you. GALDONES:Thank you, Mr. Tyler. TYLER:YouÓre welcome. GALDONES:Commissioners, any questions of Mr. Tyler? TYLER:Thank you. GALDONES:Thank you, Mr. Tyler. Norman, on page 2 of the recommendation, where itÓs bolded, the last paragraph, thereÓs a sentence there, the second sentence, ÐThe applicant proposes to connect to the CountyÓs new wastewater treatment facility at Kealakehe.Ñ As it relates to Condition No. 6, is No. 6 stating that? Is that what itÓs intended to say? HAYASHI:No, No. 6 would be basically a solid waste management plan, or solid waste disposal, not necessarily the -. GALDONES:Not the wastewater? HAYASHI:Not the wastewater. 7 GALDONES:As raised by, the concern raised by Mr. Tyler, although itÓs stated in the recommendation that they have the intention of hooking up to that wastewater system, does that have to show as one of the numbered conditions? HAYASHI:We can include that as a condition. And the condition could read that, ÐThe applicant shall connect its proposed development to the CountyÓs sewer system.Ñ GALDONES:Okay. Because it shows in the recommendation that is the well intentions of the applicant anyway. Thank you. Mr. Mooers? SPRINGER:Mr. Chairman? GALDONES:Okay, Commissioner Springer. SPRINGER:Norman, similar to the ChairÓs drawing out attention to that sentence on page 2, the following sentence discusses runoff or discharge, and IÓm wondering if that addresses Mr. TylerÓs concerns with regard to impact to the ocean. HAYASHI:I guess, basically, what weÓre doing is as a finding weÓre saying that thatÓs going to be taken care of. SPRINGER:Taken care of in consultation and including the requirements of the Department of Public Works? HAYASHI:IÓm sorry, maybe IÓm missing a page or looking at the wrong place. SPRINGER:IÓm looking at the sentence following -. HAYASHI:Okay, any, are you talking about Ðany potential runoff or discharge/Ñ SPRINGER:Yes. HAYASHI:Okay, that would be, I believe there was a condition regarding, Condition No. 4, and that would be part of the drainage system that they would have to provide, meeting with the approval of the Department of Public Works, the on-site drainage system. GALDONES:That Condition No. 4 is intended to take care of the potential runoff or discharge? HAYASHI:Well, any kind of surface runoff would have to be taken care of toward, a drainage system meeting with the approval of the Department of Public Works, correct. GALDONES:Commissioner Springer? SPRINGER:I have no further question. 8 GALDONES:Mr. Mooers, any further comments? MOOERS:Oh, yes, thank you. First, I take offense that, referring to the Topliss decision as a loophole. As a land use professional, I consider the process to be very important. And I think thereÓs a clear distinction, as the Planning Director has pointed, between the Change of Zone processing and the Special Management Area Permit processing. While the applicant recognizes that there are problems with that roadway, the appropriate time to deal with it is not at the time of the Special Management Area Permit. I would liken this to a case if you bought a home in the Kaloko Mauka intersection at this time, or if you purchased a lot, and at the time that you went to pull a building permit you were told by the County that the intersection is substandard and youÓre now required to pay $7800 as a fair share assessment to improve that intersection. While the statement that the intersection is substandard is true, itÓs wholely inappropriate at that time to hold you accountable to that intersection, just as itÓs wholely inappropriate to hold the applicant at this time responsible for a substandard government road when he is presently zoned for the use that he seeks to use his property as. I think itÓs a very important distinction and not a loophole. I think that the applicant recognizes the problem. IÓm glad the Kobayashi family was here today and to voice their opposition, or to point out the concern about traffic, because it is a concern. But if you notice on this roadway, and this map doesnÓt show as well, but if you look at the maps in the application, there is a constraint on that roadway. ItÓs a 20-foot access at the highway, itÓs 20 feet from the subject property. There is a constraint of 14 feet. That 14 feet constriction is between two properties owned by the Kobayashi family. ThereÓs a power pole on each lot. The solution, therefore, is going to be ultimately from, thereÓs some cooperative effort to be made here to have those poles moved apart. The applicant cannot dictate to the Kobayashi family to move those poles. And as wide as he may make his property on his frontage, that has absolutely no impact on the constraint on this roadway. Regarding the visual impact analysis and other impacts to the shoreline, I think the application speaks for itself. There is a visual impact analysis done by Dr. Ron Terry included as part of the application and part of the background report. Regarding safety, I think everybody is concerned with safety. But to assume that the roadway of this nature is substandard as it is would create an unsafe situation compared to hundreds of units in other condominiums that have driveways onto Alii is, I believe, is an absurd assumption. ThatÓs just not true. ThereÓs absolutely no indication that a roadway thatÓs even at 14 feet is not adequate to allow traffic to get out onto Alii Drive. I believe that the application has adequately addressed the SMA issues thatÓs outlined in Chapter 205A, HawaiÒi Revised Statutes. I think that it meets those standards, it meets those criteria. I think the DirectorÓs indication that he would address other issues regarding traffic at the time of plan approval is an appropriate statement. And at that time the applicant would have to negotiate with the Planning Department on what those improvements might be. I would point out that the 9 applicant has had conversations with the adjoining property owners at the Royal Kahili Condominium about gaining access through their property; and it was unsuccessful because it required a unanimous approval of the Board of Directors, which they were unable to obtain. But the applicant will continue to look for a solution to provide a safe access for this property. It obviously benefits him, as Mr. Tyler points out, and itÓll benefit the other people who use this road. And I think that thatÓs a fair assessment of the way it should be addressed. I do not believe the SMA should be conditioned with traffic conditions. And I would like to read one paragraph from the Topliss decision in which the appellate court remanded this back to the Commission. And it says, ÐOn remand, the Commission should reconsider the permit petition and determine whether the traffic generated by the development w substantial adverse environmental or ecological effect on the coastal zone. If the Commission finds that the traffic will not have such a substantial adverse effect, then the Commission should approve the permit without conditions relating to the traffic.Ñ GALDONES:Thank you, Mr. Mooers. SPRINGER:Mr. Chair? GALDONES:Commissioner Springer. SPRINGER:While thanking Mr. Mooers for the citation from Topliss, IÓm also looking at Exhibit D which is a memo from the HawaiÒi County Police Department. And theyÓre recommending as a condition of development along this unnamed roadway that the unnamed roadway be brought to County of HawaiÒi roadway standards. And IÓm wondering, this is included in the background report, what does the Panning Department do to inform the Police Department or other departments that may be making recommendation to us that are contrary to case law? YUEN:I would, IÓve tried to make it clear to all the people that give us recommendations that I want, the Planning Department, we want to hear what their viewpoint is, and I donÓt expect them to know what the SMA Law is or rezoning law. They should say what they think ought to happen. And if it turns out that we canÓt put in the condition because itÓs against the SMA law, then the Planning Department will make that otherwise, we are stifling the input from departments; and I donÓt want to do that. I want to get their input free of is it -. I donÓt want them to be thinking is it unreasonable, is it too expensive, is this unfair to the applicant? They should give a recommendation within their areas of expertise; and then we and the Planning Commission and the Council will evaluate that against the land use laws and precedence, and sense of fairness. So IÓm not going to try to discourage the Police from giving us this kind of recommendation. We were not, for the reasons that I have given, were not able to implement it. GALDONES:Commissioner Springer? 10 SPRINGER:I see that the Fire Department as an agency did not respond to the review of this application. And since weÓre discussing issues of evacuation at time of a tsunami as a possible safety issue, I wonder if the road in its present condition can handle fire -. YUEN:IÓm not sure of that. And what, the Fire Department does review building permit applications and sometimes -. ItÓs possible that this will have a problem at Building per Fire Code. I canÓt say that because IÓm not familiar with the Fire Code. But that is, I wished they would have given us something here but they didnÓt. But, as I say, they do look at fire access and there is, there are things in the Fire Code; and when you get into the multi-family building, it is more stringent for a single-family building. GALDONES:Commissioner Graham? GRAHAM:I just want to say that, personally, I can concur with Mr. MooersÓ observation that we donÓt want to compromise fairness in the process just to arrive at a result that we might like. However, for the clarity of what weÓre doing, I think maybe the Planning Director could tell us a little bit more about what are the constraints and what are the abilities of the Planning Department at the plan approval time to, you know, require or bring about some improvement in the road situation. YUEN:The Plan Approval law says that various kinds of projects, including multi-family dwellings have to have plan approval. And it says that one of the things that the Department is supposed to look at is, to make sure that traffic movements are not hindered or obstructed. And then it says, goes on to say that the Department can put on conditions on the plan approval to make the project, to make the project, satisfy that. ItÓs not much more specific on that. So this, and IÓm not prepared to say -. WeÓve had some discussions with Mr. Mooers about what we would be looking at at plan approval, but IÓm not prepared to say here just what we would require. We would be looking for some improvement, though, in the present situation. GRAHAM:ThereÓs no specific constraints on what you can require that we should know about or could know about? YUEN:Not in the law. I think there are those constraints of reasonableness. GALDONES:Commissioners, any further questions? Commissioner Kubota, would this be an appropriate time for your statement? KUBOTA:Yes and no; but since I have the floor I will say something. This is not for Ivan but whoever said that judicial pronouncements were entirely logical, theyÓre not. And I can say that because I come from a family of attorneys, IÓm surround experience. You know, this Topliss law, decision that was rendered, I understand what Curtis Tyler is talking about when he says our responsibility to the public and their well being. At the same time, I feel my hands are tied because IÓm being told that we are bound by the decision that was made in Third Circuit Court that prohibits us from attaching any improvements, traffic wise, 11 to an SMA permit. And I understand that also. But that doesnÓt mean that itÓs logical, itÓs totally illogical. But, having said that, are you ready for a motion? GALDONES:I believe -. TYLER:Excuse me, before you make the motion, can I just make three additional comments, very briefly, in response to Mr. Mooers, just very brief comments? GALDONES:Fine. TYLER:Thank you. I appreciate it. GALDONES:The Chair recalls Mr. Tyler. Before you speak, however, Mr. Tyler, Mr. Yuen would you like to give further response to Commissioner KubotaÓs statement? YUEN:Yeah. ItÓs just that I donÓt like the Topliss decision either, but we do have to abide by it. WeÓre in a frustrating situation often times because for whatever reason there are properties that are zoned for a particular use that have crummy roads, you know, itÓs scary to look at them some times. There are other kinds of problems. You look at them, sometimes you scratch you head and think, well, what happened. And a lot of times the zoning goes back to, as in this case, I think it goes back to the late sixties when there was sort of a mass adoption of zoning maps. There often is some tool to make sure that development occurs in the public, more in the public interest, even though the property is zoned. In this case, itÓs plan approval. Naturally when something comes to the Commission like the SMA permit which often is another tool to deal with problems that exist with the present zoning, naturally I think all the Commissioners and the Planning Department, too, looks to hop on the SMA permit and attach a solution on that. Unfortunately, in this case, itÓs just not the right vehicle by law for us to try to solve this problem. GALDONES:Thank you, Mr. Tyler. TYLER:Thank you, Mr. Chairman, for the opportunity to speak agai First of all, I want to apologize for the use of Ðloophole.Ñ That was, Mr. Mooers is correct, that was an improper use of the word in this context. ItÓs not a loophole, itÓs a legal decision. I respect legal decisions. And I didnÓt mean to say that you shouldnÓt, you should. What I was trying to, with a poor choice of words, but the point I was trying to make is that there are other criteria which you must consider which I believe might have some applicability; and I mentioned some of those to you. The issue of nonpoint source pollution is, in my estimation, is not addressed in here at all. Either you have a different recommendation than I have -. I heard you talking about conditions that I donÓt have any, I donÓt see these in my document. I have one dated 6/9/03. But the point I want to make is that the County Chief Engineer has gone on record as stating that the County has no policy, no rules, with respect to nonpoint source pollution. This has come up in the contested 12 cases before the Land Use Commission. And Director Lee, former Director Lee, when specifically asked by me by questions that came up during the LUC as to how would the County deal with it, said we donÓt have it, itÓs on the record. Mr. McClure was informed by me and others, I believe, that the County needed to correct this. IÓm unaware that they have taken any efforts to do this. ThereÓs nobody here that I see from the Dep to this issue. And I would again reiterate that there are three sections in the objectives that you must pay attention to. And the first one is No. D and it says promote water quality, this is under coastal ecosystems, ÐPromote water quantity and quality planning and management practices that reflect the tolerance of fresh water and marine ecosystemsÈand prohibit land and water uses which violate State Water Quality Standards.Ñ IÓm not suggesting theyÓre going to violate the standards. IÓm suggesting that you need to have this informatio Secondly, under Coastal Hazards, No. 6 says, as its objective, itÓs No. (6)(E) which says ÐDevelop a coastal point and nonpoint source pollution control program.Ñ I would ask you to get one from the county and see if you can find one. I donÓt believe they have it. And, IÓm sorry, No. A was the first one I should have mentioned, was Ð(6)(A) Develop and communicate adequate information about storm wave, tsunami, flood, erosion, subsidence, and point and nonpoint source pollution hazards.Ñ And in this State we continue to spend our resources with respect to water for after-the-fact issues. Most of them are flood control, runoff, not runoff, wha is it called in here, something thatÓs mentioned. But it doesnÓt address nonpoint source pollut And I would just urge you, and IÓm not suggesting theyÓre going to create any. What IÓm saying is that you are obligated to investigate this. And to have no one here from the Department of Public Works to address the concern of at least one citizen regarding this will continue to foster this failure, what I regard as, excuse me, what I regard as a failure on the part of the Department of Public Works to address the nonpoint source issue. And, yeah, well, limited resources, but I would urge you, please, to just think about this, if not today then as youÓre, you know, continuing your work. Thank you, Mr. Chairman. GALDONES:Thank you, Mr. Tyler. TYLER:YouÓre welcome. GALDONES:Any questions of Mr. Tyler? Commissioner Springer? SPRINGER:Perhaps before Mr. Tyler leaves the table, IÓd like to ask the Planning Director if the State Department of Health memo, our Exhibit F, and the applicantÓs response that they will comply as appropriate to the concerns of the Department of Health, if that addresses what Mr. Tyler has brought to our attention. YUEN:I think we need to put this in perspective. This is a site of about a half an acre, previously graded property, relatively flat ground, almost no soil, separated from the ocean by other developments and Alii Drive. They will not need any, on this letter, they will not need an NPDES Permit because theyÓre not going to disturb more than f have to do in the construction of the project as far as, and the construction and the final development of the project as far as preventing runoff from the property to the ocean, theyÓll 13 have to design the project with a drywell or drywells that are designed to take the storm flow from a 10-year storm and fill that, and the drywell is supposed to have that capacity. If you have more than a 10-year storm then theyÓre allowed to have that water discharged out along the street; and, potentially, it would carry with it whatever loose items might be on the surface of the land, like rubbish, possibly there might be some slight erosion of soil. But itÓs not, I canÓt regard that as a serious water pollution problem from a site of this size on level ground without soil. As far as whatÓs the potential for pollution from the drywell itself, you know, rainwater will fall, itÓll go into the drywell. ItÓs not a situation that is at all, I mean, again weÓre dealing with about a half an acre here. WeÓre not, itÓs not a situation thatÓs different than hundreds of properties along Alii Drive currently. GALDONES:Commissioners, any further questions or comments? FUJIKAWA:I have one. GALDONES:Commissioner Fujikawa. FUJIKAWA:Yeah, going back on this particular one here, I donÓt think the drywell situation is a discussion for us because when they installed the sewer line on Alii Drive they struck water from down in the ocean, the sea level. So I think it has to be brought up for a decision from the upper -. GALDONES:Thank you. Commissioner Springer? SPRINGER:Regarding to the, with regard to the standards and guidelines that Mr. Tyler referred to the County not having, itÓs a part of the record of this proceeding that thereÓs a concern there. And I wonder is there any way that this panel, this Commission, might influence bringing those sorts of guidelines into existence? YUEN:The County does currently have a contract out to revise the Grading Ordinance to more fully address concerns about nonpoint source pollution that may arise from runoff during construction. GALDONES:Thank you. Commissioners, any further questions? Commissioner McCall? MCALL:Yeah, just a final point on the nonpoint source pollution is that, to make sure everybody is clear, the drywells that I assume will be put in here are considered a point source pollution. Nonpoint source pollution by definition is wh the pollution is coming from. You know, if a farmerÓs field is flowing into a stream and you can see where it's flowing, that is a point source. If you cannot designate it, it's nonpoint source. One of the problems that the County has and when they come to the conservation districts with their problems with the Grading Ordinance is because the definition of nonpoint source is itÓs not a, you canÓt point to it. ThatÓs the whole idea. ItÓs pollution thatÓs coming from an unknown source. 14 GALDONES:Thank you. Commissioners, any further questions or comments? Otherwise, Commissioners, there is a recommendation from staff that this application be approved. WhatÓs the pleasure of the Commissioners? Commissioner Kubota? KUBOTA:Mr. Chairman, I move that Special Management Area Use Permit (SMA 03-003) be approved by the Planning Commission, along with an addition, I think it has, oh, along with the findings and recommendations made by the Planning Director. ThereÓs an addition to the condition that I want to make. Now do I say it together with this motion or do I come back later and say it? Say it? GALDONES:You can amend that, or you can include the amendments or additions that you wish to add. KUBOTA:All right, and amendment to the list of conditions set forth by the Planning Director by addition of another condition which speaks to the project connecting to the County sewer system. I donÓt have the correct words to say it, but it has to do with that. FUJIAKWA:Second. HAYASHI:We, Mr. Chairman, if I -? GALDONES:Norman. HAYASHI:We can include that as a new Condition No. 7 and renumber all of the other conditions, and move it back down. KUBOTA:So itÓs new Condition No. 7? HAYASHI:Yes. So seven becomes eight, etc. GALDONES:It has been moved by Commissioner Kubota and seconded b Commissioner Fujikawa that Seven and Sons, LLC.Ós Special Management Area Use Permit (SMA 03-003) be given approval, along with the recommendations and findings, and the addition of Condition No. 7 relating to wastewater. KUBOTA:Mr. Chairman, before we take a vote -. GALDONES:Discussion. KUBOTA:Yes. IÓd like to leave the negotiating of the improvements to the existing road to the permitting process. And during that period I trust that our Director and the Department of Public Works will keep in mind the discussions and Commission Members regarding the improvements to be made on the road; and, I guess, thatÓs the process that was recommended by Mr. Mooers as well. 15 GALDONES:So noted. Any further discussion? Hearing none, Norman. HAYASHI:Thank you, Mr. Chair. I missed who seconded the motion. GALDONES:Seconded by Commissioner Fujikawa. HAYASHI:Okay, thank you. Commissioner Kubota? KUBOTA:Aye. HAYASHI:Commissioner Fujikawa? FUJIKAWA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Mina? MINA:Aye. HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner Thibadeau THIBADEAU:Aye. HAYASHI:And Chair Galdones? GALDONES:Aye. HAYASHI:Motion carries. GALDONES:Thank you, Norman. Mr. Mooers, you will be informed in todayÓs action. 16 MOOERS:Thank you. The discussion ended at 11:42 a.m. Respectfully submitted, Sharon M. Nomura, Secretary 17