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HomeMy WebLinkAbout2007-07-20 TKOHALA PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JULY 20, 2007 A regularly advertised hearing on the applications of Initiator PLANNING DIRECTOR and Applicant KOHALA LLC (REZ 866/SMA 379)was called to order at 9:35 a.m. at the Waikoloa - Beach Marriott, Naupaka III, 69275 Waikoloa Drive, Waikoloa, Hawaii, with First-Vice Chairman C. Kimo Alameda presiding. PRESENT: C. Kimo Alameda ABSENT & EXCUSED: William Graham Takashi Domingo Alvin Rho Andrew Iwashita Rodney Watanabe Shelly Ogata Rene’ Siracusa Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Brooks Bancroft, Deputy Corporation Counsel Chris Yuen, Planning Director Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 15 people from the public in attendance. INITIATOR: PLANNING DIRECTOR a. Change of Zone (REZ 07-000067) for 37.88 acres of land from a Single-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-5a) district. b. Repeal of Ordinance No. 97-102 which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. c. Revocation of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of st Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (REZ 866/SMA 379) a. Amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97-102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. b. Amendment to Condition 4 (time to secure final subdivision approval) Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest (makai) side of Akoni Pule Highway and st the Kohala Ranch Subdivision, Kahua 1, North Kohala, Hawaii, TMK: 5-9-1:8. EXHIBIT A 1 ALAMEDA: All right, Fellow Commissioners, we’re at Agenda Item 2 and potentially 3. According to Corp. Counsel we have an opportunity to combine Agenda Items 2 and 3 because they’re contingent. And I’d like to turn it over to Mr. Darrow for his explanation of why we could combine 2 and 3. Jeff? DARROW: Thank you, Mr. Chairman. The Agenda Item Nos. 2 and 3 are related to each other. Agenda Item No. 3 is a time extension request from Kohala LLC requesting a 5-year time extension to Condition C of Rezone 97-102 and also Condition 4 of Special Management Area Use Permit No. 379. And basically these are both the same conditions, just in two different permits, that they be able to secure final subdivision approval. The Agenda Item No. 2 is initiated by the Planning Director to change the zoning of this property, as well as to revoke Special Management Area Use Permit 379. Before I get into too much detail, I’d like to just give a brief presentation of the location of these applications. These applications are occurring in the North Kohala District of Hawaii, more specifically we’re looking at the Akoni Pule Highway running in a north/south direction. Kawaihae would be located in approximately this area. Hawi would be located in this area. We have Kohala Ranch Subdivision and other agricultural subdivisions in this particular area. And the area that we’re looking at for these applications is identified with a blue dot. The zoning of this property at this time is Single-Family Residential 15,000 square feet. Around this particular property we have Agricultural 5 acres identified with light green. The darker green is Agricultural 20 acres. The light blue is Agricultural 3 acres; and the darker blue is Agricultural 40 acres. We also have an area that has come in previously for a Change of Zone to Multiple-Family 4,000 square feet, as well as received a Special Management Area Use Permit. Additionally, we’ve had a Special Management Area Use Permit on the properties just to the south which had come in for a subdivision to break up these parcels into 5-acre lots. And then there’s one bulk lot remaining. The applicant in this case, again, we have two applicants, but Kohala LLC who owns the property at this time is requesting a time extension to Condition C of Change of Zone Ordinance No. 97-102 and Condition 4 of Special Management Area Use Permit 379. These permits were approved in 1997. They were approved on different dates. July 14, 1997 is the effective date for the Change of Zone Ordinance and August 8, 1997 is the effective date for the Special Management Area Use Permit. Both of these have similar conditions stating that the applicant needs to secure final subdivision approval within 5 years from the effective date of those permits. The previous owner and the current owner up to this point had not submitted a subdivision plan as well as a request for a time extension on these conditions. Usually what happens is if the applicant is not able to meet these conditions within the time allotted then they request an administrative time extension which is allowed through the conditions of these permits. The applicant and the previous owner in this particular case did not do this. So it’s the Planning Director’s position that once this is not done then in all actuality these permits are no longer valid. The applicant recently, almost ten years after the fact, has come in and is requesting a time extension for these two conditions. Just to go into detail briefly about the Planning Director’s initiative, the Planning Director is initiating a change of zone to be able to change this property from its currently zoned Single Family Residential 5,000 square feet to Residential and Agricultural 5 acres or RA-5a. And, again, the main reason for this is spelled out in the recommendation where there have been two Senate Concurrent Bills, I believe, 146 and 179 that have requested and urged retention of these EXHIBIT A 2 areas for viewplanes and open space, and more recently, for historic sites and traditional purposes. The other reasoning is that it complies with the natural beauty element of the General Plan and, lastly, that it’s the position of the community to be able to preserve the coastline in this particular area of North Kohala. Additionally, the Planning Director is initiating revocation of Special Management Area Use Permit 379 which originally was approved to allow a 50-lor subdivision and related uses. So the Planning Director is asking that that be revoked. If the Planning Director’s initiative passes and this particular property is rezoned to RA-5a then in the future when an applicant does come forward to be able to subdivide this property, at that time they will be required to come before the Planning Commission for a Special Management Area Use Permit, and therefore place further controls on the property regarding public access and special management area guidelines. The Planning Director is recommending that the time extension for both the Change of Zone Ordinance and the Special Management Area Use Permit be denied, and that he is requesting that his initiatives for the Change of Zone and the revocation for the Special Management Area Use Permit be approved and receive a favorable recommendation. ALAMEDA: Thank you, Mr. Darrow. DARROW: Just one, one quick note. ALAMEDA: Sure, go ahead. DARROW: Because we’re dealing with a change of zone request as well as a special management area, we have two, the change of zone obviously will receive a recommendation from the Commission and then go to the Council. The Special Management Area Use Permit will be final with the Commission. So that’s something to keep in mind. Thank you. ALAMEDA: Thank you. Commissioner Siracusa, questions for Mr. Darrow? SIRACUSA: Yes, I have two procedural questions. ALAMEDA: Go ahead. SIRACUSA: I just want to clarify that if, well, first of all, are we going to take these matters up in the order, and accept the motions in the order in which they’re presented on the agenda, which starts out with the Planning Director initiated ones? That’s No. 1. And No. 2 is if we pass the Planning Director’s proposals then we don’t have to go on and do any motions on the applicant’s proposals because they will be automatically moot? Is that, or do we have to go through the process anyway? ALAMEDA: Let’s ask Mr. Torigoe. No. 1, do we have to take it up in this order; and No. 2 if we take up the first one do we have to take up the second? TORIGOE: Thank you, Mr. Chair. I’ve actually talked with Mr. Lim who represents the applicant and the Planning Director; and because as Mr. Darrow noted these two agenda items are basically two opposing sides of the same factual coin, it makes sense to consolidate EXHIBIT A 3 them for your discussion and action. And so that would be the first procedural issue that I would recommend, is that you confirm with the parties that they’ll agree to consolidate these for action; and then you go ahead and take that action. After you’ve consolidated, assuming you consolidate these two issues, then it becomes really up to you how you would want to handle it. I would think that at some point you would want to entertain a motion that would, well, you could possibly entertain a motion that would deal with everything in one motion, if it fits that way. ALAMEDA: Follow-up, Commissioner Siracusa? SIRACUSA: Follow-up questions, yeah. I don’t see how we could do one motion if one motion would be at the very least on the Change of Zone and the other would be on an SMA. It would seem that at the very least we would have to do two separate motions -. TORIGOE: Right. SIRACUSA: To keep it from getting too convoluted. TORIGOE I think you’re right. That would probably be the better way to do it. And, also, think about the relationship between the Rezoning and the SMA Permit. Basically, the SMA Permit ought to be consistent with whatever the rezoning is. ALAMEDA: That sounds good. Commissioner Siracusa, I think you’ve got it right. Commissioner Domingo? DOMINGO: Just from Jeff, you know, in the event that we revoke the Change of Zone Ordinance and the SMA Permit, then in the future should the owner decide to come in and develop that, then they would have to go through another rezoning procedure and an application for an SMA Permit? DARROW: If the applicants choose to develop it as it is now, a 50-lot subdivision, if the Planning Director’s initiative passes, then the property will be zoned RA-5 acres. So they could do, you know, a development on 5-acre lots. But, again, it would require the development to come before the Planning Commission through the subdivision of the lots for the Special Management Area Use Permit. DOMINGO: I just want to clarify that in my mind because I kind of heard you say once it’s revoked then they would have to come in for any application, for another SMA Permit; and if I heard correctly I didn’t hear you saying that they need to come in for another rezoning application. DARROW: Yeah, the Special Management Area Permit that they would need to come in for would be for the subdivision of the 5-acre lots, cause right now the property is approximately 38 acres. So they’d still need to go through the subdivision, which would trigger the requirement of a Special Management Area Use Permit. Thank you. EXHIBIT A 4 ALAMEDA: Thank you, Commissioner Domingo. Do we have any questions before I ask the applicant up? Okay, please raise your right hand. Do you swear or affirm to tell the truth now before the Hawaii County Planning Commission? LIM: I do. ALAMEDA: Thank you. Could you please state your name and address for the record. LIM:I’m Steven Lim from Carlsmith representing the applicant, Kohala LLC, at 121 Post Office Box, Hilo 96721. ALAMEDA: Okay, thank you, Mr. Lim. What do you think about our discussion so far or what would you like to share with us. LIM:I think that the Agenda Items 2 and 3 should be discussed together, as Corporation Counsel has indicated those are flipsides of the same coin. I think you have to take separate actions. So we’ll stipulate to discuss both and incorporate the records for both agenda items into one proceeding. ALAMEDA: Okay. Is there anything else you’d like to add for our benefit? LIM:I have a full presentation, of course. But for procedural purposes that I think should handle it. ALAMEDA: Okay. Mr. Torigoe? TORIGOE: Thank you, Mr. Chairman. Just to clarify, as Mr. Darrow noted the rezoning is a recommendation matter that you would send to the Planning Committee, the SMA Use Permit decision is a final decision of yours and it’s technically a contested case. And so I just wanted to get clear on the record that, Mr. Lim, you know, as the SMA matter is a contested case matter you would have the right to call witnesses or, you know, do all the kind of trial-like things that you might want to do if there was an intervenor present. If we’re going to consolidate this and have a more informal discussion, are you okay with that? LIM:I think I would like to have whatever proceedings occur, whatever exhibits are introduced to be part of the SMA Chapter 91 type of a hearing, even though it’s technically mixed in with the rezoning. If we have to appeal, I have to appeal on the record that is represented before the Planning Commission on the SMA Permit. So I want to make sure that everything that we do today and in subsequent hearings would be included on the Chapter 91 SMA hearing. TORIGOE: Okay. So, I guess, Mr. Chairman, as we go we should just make sure that Mr. Lim has the opportunity to introduce his exhibits and you’d want to, as we go also check and see if there are any other procedural matters that he would like to have done as a matter of a contested case before we wrap up. ALAMEDA: Thank you. Mr. Torigoe, if it’s going to go along those lines, should the parties, the Department and all, be at the front or -? EXHIBIT A 5 TORIGOE: Well, we can, you know, I guess we can see if the parties -. Mr. Lim, would you request that the Planning Director basically take a seat as a party for these proceedings at the counsel table or are you okay with him seating where he is now? LIM:I’m okay with him seating where he is now. I understand in SMA proceedings that he would be a party. ALAMEDA: Okay. All right. Seeing no further questions for our Corp. Counsel, Mr. Lim, go ahead. LIM:Thank you very much, Mr. Chairman and Members of the Commission. I think what I’d like to stress the most is the issue of fairness on this proceeding. For those of you -. Can you turn it (microphone) up a little bit louder maybe? Thank you. Okay. (Testing microphones). I’ll just try to speak louder, I’ll try. Okay, so going back to the fairness issue, as I think those of you on the Commission, probably half of you have been on for some years now, half of you have just recently been appointed. But for those who have been on for some years now, I think you probably understand that this is the very first and the only Planning Director initiated down zoning of a private property without any consent from the fee owner. I want you to understand that very clearly because I’ve been doing this, at least with Mr. Yuen, for about 8 years now or nearly 8 years. I am only aware of two instances in which the Planning Director initiated a down zoning; and those were both voluntarily agreed to by the applicant. One of them was in approximately 2006, that was an application by the Matsuda family for approximately 1.95 acres in Waiakea in Hilo. He took his previously zoned RS-10 property, Single-Family Residential, back down to Agricultural 3 acres because he was not going to pursue subdivision or development of his property. It doesn’t say in the Planning Department’s records but I’m assuming he ran into some difficulty with respect to developing his farm dwelling on the lot and had to pay the fair share fees and all the other things that come along with the rezoning. So that was revoked and reversed, the zoning was reversed back down to Ag-3. More recently, some of you probably worked on the 2007 request by the Planning Director to down zone the puu up above Waimea town. That was property that was owned by the State Department of Land and Natural Resources; and also in that case the State Director at the time, Peter Young, consented in writing to the down designation. That was from Ag-1a to Agricultural 400 acres for the area of the puu. So other than those two, I am not aware, and I’ve been doing this in the County of Hawaii for about 20 years now, I am unaware of any other Planning Director initiated down zoning of a private property without consent by the property owner. So that’s why I’m saying we’re raising the fairness issue. Going to the reasons for the Director’s recommendation to down zone the property, essentially what he’s saying is that we haven’t gotten the final subdivision approval in the 10 years since the rezoning was adopted and the SMA was approved in approximately 1997; and that is correct. The developer and owner has changed over the years. I’ll give you a short rundown on that. But that is part of the reason why there was no action. The other big reason why there was no action is that the property has significant archaeological sites and burial sites on it. And it was only until May of 2006 that we got the final approval of the archaeological inventory work from the State Historic Preservation Division. So I’m going to pass out exhibits that detail some of the burial treatment work and the latest May 19, 2006 SHPD approval letter. What I’m passing out EXHIBIT A 6 to Jeff is a May 19, 2006 SHPD letter to Paul Rosendahl, April 28, 2006 SHPD letter to Paul Rosendahl, May 8, 2005 PHRI letter to SHPD, May 3, 2005 PHRI letter to SHPD. And to give some context in terms of the general area, this is property that is located just immediately makai of the Kohala Ranch project. We believe it is consistent with the General Plan and the Special Management Area Regulations in the area. In fact, when the project first came through the Planning Commission and the Planning Department, the County of Hawaii Planning Department’s recommendations stated the development will not have any significant adverse environmental or ecological effect. They also stated in that recommendation and report that “Although there will be a diminution of open space and alteration of the existing coastal viewplane the project as proposed would have no adverse impact to recreational and visual resources, access to and along the shoreline, nor coastal ecosystems”. The report went on to conclude that “The proposed development is consistent with the objectives and policies as provided by Chapter 205A, HRS, and Special Management Area Guidelines contained in Rule 9 of the Planning Commission Rules of Practice and Procedure.” It is our position that the Planning Director’s effort to down zone the private property without the fee owner’s consent in this case is not supported by law, nor procedure, nor the County General Plan. As you can see from the graphic up there on the site plan that the Planning Department staff has posted, it’s in an area of development very close to a Multi-Family Residential zoned area and immediately makai of something in the neighborhood of 800 acres of State Land Use Urban which is that yellow that you see, which is zoned for potential density of approximately 1490 residential units and a golf course. Whether they actually developed that project or not, I don’t know; but it has been zoned for about the same period of time. We don’t think that the proposed zoning or SMA permit for this particular project is out of line. We think it’s consistent with that area of North Kohala. In fact, this property is about 38 acres, round numbers. At RS- 15 zoning the total maximum density is something in the neighborhood of 110 lots. What we have the Special Management Area Permit for is only 50 lots. This particular client, Kohala LLC, has been in the process over the past year or so trying to determine, once we get the SHPD clearance for the archaeological sites and the burials as to where these preserved sites would be, it’s to then figure out what size of project he wants to do. We’re looking currently at something less than the 50 acres (sic) but we’re not sure yet. So I can’t any make commitments with that regard. But while we are essentially under attack on the entitlements, we really can’t move forward any further. Thus far we’ve secured water and an indication that the utility duct lines for the electrical have already been constructed under the Akoni Pule Highway to the project. We’ve recently made a request of the Kohala Ranch Water Company, which is a private water company servicing this area under, there’s an agreement between the surrounding properties, we’ve made a request for the water meters. And what happens after that is they will then send us what they call a “will serve” letter from the public utility company that basically says “We will service your project if you will build these certain water infrastructure improvements.” The Condition L of Ordinance No. 97-102 has already been satisfied by the submittal of the February 5, 1998 agreement to the County. We’ve satisfied the affordable housing requirements of Condition L. Condition M of the Rezoning Ordinance related to submittal of a data recovery plan for the archaeological issues, we’ve just recently completed all of the work for that. So now EXHIBIT A 7 at this point in time we would be ready now to develop what the configuration of the lots would be, considering the archaeological preserved sites which are numerous in this area. The property owner over the past several years has gone back and forth between considering whether he wanted to do a very low density project to negotiating with a potential joint venturer who was proposing to develop this property and the next door to the south property, which would be a total of about a 102-acre site for development, joint development, of those two project areas. And so the density on the present property, the Kohala LLC property, would have been reduced because it would have spread the density over on to the southern site. That took up some time during the mid-2000s and it in the end didn’t work out. We have, in fact, just before the Planning Director sent his May 2007 letter to the applicant indicating that he will be processing this down zoning, we were already in the process of obtaining the project entitlements, preparing our draft annual report on the entitlements, which we did submit, along with our time extension. And so we are now currently underway to pursue development. But pending this development, pending this issue we have to stop. I think one of the big reasons, and something that the Planning Director’s background report indicated, was that the time condition for obtaining final subdivision approval, although it’s a violation, I think that he felt that one of the bigger reasons why you should down zone this property is, as he says, more important than noncompliance, this revocation action is being initiated in response to the resolution from the State of Hawaii Senate. Those are the two resolutions that Mr. Darrow referred to which was the 1988 Senate Concurrent Resolution 179 and the 2001 Senate Concurrent Resolution No. 146. I was involved in the development of a project in North Kohala which generated, I think, the primary thrust for these resolutions to come out; and that was the Mahukona Resort project further up, several miles away from this particular project. The one in 1988 came down right about the time that the SMA and entitlements were being processed for that project. And the 2001 resolution which essentially reiterated the 1988 resolution came out during the initial land clearing activities that was being conducted on the Mahukona site. We don’t, and we are not aware of any specific reference in those resolutions to this particular property and, in fact, we don’t think they apply to this property. As you can tell from the dates, in 1988 the Senate Concurrent Resolution 179 was passed. In 1997 when that resolution was already in effect, the Change of Zone and the SMA Permit for this particular property was granted. So I submit to you that those resolutions have no force and effect. I submit to you that the Planning Department’s representations and recommendations on the original Change of Zone have not changed. An additional reason for the Planning Commission to deny this reclassification, this involuntary down zoning, is that this is a policy decision that the Planning Director is making by himself. He doesn’t have any guidance from the County Council; and if he wanted to change the land use for this area, for this particular parcel, then he should have passed or should have processed a General Plan Amendment for this parcel when all of the proceedings were going on in 2005 when the new General Plan was being processed.In fact, the property just to the north of this subject property was changed from Extensive Ag down to Conservation. So the Planning Department and the Planning Director was at that time looking at this area. And had he thought that this was inappropriate land use, then he should have processed a General Pan Amendment at that time. And his failure to do so I think is instructive that it points out the arbitrary nature of EXHIBIT A 8 this action and that is one of the reasons, also, why we believe that the down zoning is inappropriate. I think it’s instructive, at least today, that as of this hearing that we have no agency comments in opposition to our request for a time extension on the Change of Zone and the SMA, and at least as of today I don’t see anybody testifying against our time extension. We feel that the involuntary down zoning is inappropriate. We believe that the Planning Commission and the Planning Director have both recommended and approved time extensions on change of zone ordinance and SMA Permits routinely; and that if there are any updates to those permits because of changed conditions, the Planning Commission and the County Council have felt very free to amend and revise those conditions on those time extension requests. I believe that that is a proper method for the Planning Commission and the County Council to act on this matter. We believe that we’re being unfairly singled out and we are not being provided with the equal protection under the laws that you provide to others. I have another exhibit to provide to you, which is our July 20, 2007 letter from Carlsmith Ball to the Planning Commission, which is essentially our recitation of the legal issues that we feel are implicated by the proposed down zoning. I ask you to take that into consideration. But essentially like most, hopefully like most legal concepts the concept that we mentioned in those letters are founded upon the issue of fairness. Like I said, I could see the Planning Director pursuing a down zoning if this was a bad developer, if they had committed bad acts or if they had been intentionally disregarding any notification from the Planning Department they’d better get going on the project. The May 2007 letter to the developer indicating that they were going to process the down zoning was the very first notice that the developer had of the Planning Director’s intention. We believe that the legal memorandum raises, I think, in legal terms, the basic issue of fairness that I started out with, is this fair to this applicant? Have you not in the other cases for time extensions routinely granted these time extensions to developers? We feel that we have provided enough information that the developer has proceeded with aspects of the development, and due to the SHPD clearance in May 2006 now is able to proceed with the preparation of his site plan for his lotting of the project. We feel that the Planning Department and that the Planning Commission’s initial recommendation for approval and granting of the SMA Permit for essentially 50 percent of density, the zoned density on the project, was a reflection of the agreement by the County at that time that the downsized project that was coupled with a visual study to minimize, showing the minimal impacts of the project on the visual aspects of the Kohala coast was sufficient to address the concerns. I stand ready for questions by the Commission. ALAMEDA: Okay, before we do that, could I, I wanted to make sure that our exhibits are in the record. And what is the protocol for that? TORIGOE: Well, I think you can ask Mr. Lim to identify whatever exhibits he wants to have in the record for the SMA Permit matter, and see if there’s anybody or the Planning Director has any objections to those, see if the Commission has any comments on the admission of that evidence, and as the presiding officer you make the call. ALAMEDA: Okay. Mr. Lim, could you restate the two exhibits that you just presented to us. EXHIBIT A 9 LIM:Sure. I’ll go ahead and run through the list of SHPD letters. The May 19, 2006 SHPD letter to Paul Rosendahl, the April 28, 2006 SHPD letter to Paul Rosendahl, the May 8, 2005 PHRI letter to SHPD, the May 3, 2005, PHRI letter to SHPD. That was the first set of exhibits we talked about. I’d ask the Planning Commission, for purposes of the SMA record to take judicial or administrative notice of the County General Plan and the proceedings that supported the County General Plan, which is Ordinance No. 05-25. In those proceedings you will find the reference to the North Kohala District change that is identified as E-6 which was Extensive Agriculture to Conservation for the lot that is immediately north of the subject property makai of Akoni Pule Highway. We’d also like the Commission to take judicial and administrative notice of the fact that between the 1997 General Plan and the 2005 General Plan there has been no change to the County of Hawaii General Plan designation for the property. Therefore, we feel that it’s inappropriate for the Planning Director to select out of all the other properties in the North Kohala region this particular property for a down zoning which, as I hope I made clear to you, is probably going to be the very first involuntary down zoning attempt by the Planning Director, at least that I can remember in approximately 20 years in the County of Hawaii. ALAMEDA: All right, first thing first. LIM:My last exhibit was the July 20, 2007 letter to the Planning Commission from Carlsmith Ball LLP. For purposes of the record, I’d like the Commission to take judicial and administrative notice of all the records and files in the SMA No. 379 and Ordinance No. 97- 102, SMA Permit 93-13, which is a prior SMA Minor Permit for a single family residence and ohana dwelling on the property. And that’s all so far. ALAMEDA: Mr. Director, do you have any objection to allowing these exhibits to be part of the record? YUEN: No objection to the introduction of the exhibits into the record, nor to the Planning Commission taking administrative notice of the record, of the other records mentioned, including the proceedings of the General Plan Amendment. ALAMEDA: Thank you. Questions for Mr. Lim? Oh, Mr. Darrow, procedural question? I would like to first ask my Fellow Commissioners if you have any problems with the exhibits that were being proposed for the record. If not, okay, we need to make a motion to allow -? TORIGOE: Mr. Chairman, if there are no objections, you can just, as the presiding officer, admit them into evidence on the record. ALAMEDA: Okay. As a presiding officer I admit these exhibits into the record. DARROW: Just for procedural clarification purposes, some of these exhibits that were submitted are different letters but submitted as one exhibit. Would the applicant like these exhibits separate or is Exhibit 1 okay for the multiple? EXHIBIT A 10 th LIM:I guess why don’t we do it, to number them sequentially. The May 19 would be one, and so forth. There’s I think four separate letters, so one through four. Then the Carlsmith letter would be No. 5. DARROW: Thank you. Thank you, Mr. Chair. ALAMEDA: You’re welcome. I wanted to allow questions from the Commissioners since Mr. Lim is there. Who grabbed the mike first? I think Commissioner Domingo got the mike first. So go ahead, Commissioner Domingo. DOMINGO: Mr. Lim, ever since the acquisition of the change of zone and the approval of the SMA Permit, how many owners have since come into the history of this property? LIM:From the adoption of the SMA and rezoning, in mid-1997, there have been two owners. The owner at the time of the applications was Tom Gentry who met an untimely passing. He passed in about ’97, late ’97 I believe. Then in mid-1999 Kohala LLC takes title to the subject property. DOMINGO: Okay, thank you. ALAMEDA: Commissioner Iwashita? IWASHITA: So there’s just those two owners? LIM: That’s correct. IWASHITA: I don’t know if you know the answers to these questions, Mr. Lim. In 1999 when Kohala LLC took title to this property, did Kohala LLC review the Ordinance No. 97-102? LIM:I can’t say. I do know that they had submitted an annual report on the SMA and Change of Zone on July 5, 2001 which acknowledged the time frames. IWASHITA: I’m sorry, that’s in 2001? LIM:Yes. I don’t know what they saw when they purchased the property or before they purchased the property. But I do know that there is a July 5, 2001 annual report submitted on behalf of the client. IWASHITA: Thank you, Mr. Lim. Do you know who would know, who at that time, in that time frame, in 1999 when Kohala LLC purchased the property whether at that time they reviewed 97-102? LIM:If your question is did they know what their responsibilities were under the permit, I don’t know what they knew at the time that they purchased. I know that subsequently they became aware of what the responsibilities were. IWASHITA: And by subsequently what time frame are you talking about? EXHIBIT A 11 LIM:I have to assume that around 2001 that they knew they had to comply with the time conditions cause that was the July 5, 2001 annual report submitted by Sidney Fuke on behalf of the client. IWASHITA: Okay. So by 2001 at least I’m going to assume, unless there is evidence presented earlier that, and unless you object, that the applicant knew at the time of acquiring title that there were these time restrictions in 97-102. LIM:Well, I guess I would have to object because I don’t know what they knew. I can’t say myself what they knew. But I can say that as of 2001 they were aware of the time restrictions. In my discussions with them, the client is not a sophisticated developer and I don’t believe that they understood that they would have had to make a formal time extension request for the time to get final subdivision approval. IWASHITA: Before 2002 when Mr. -? LIM:That’s correct, that’s correct. Cause we were retained subsequent to that and we had that discussion with him. IWASHITA: Okay. I tell you, Mr. Lim, my concern is that, you know, you raise the fairness issue, and that’s a fair thing to raise. However, when we talk about fairness, you know the ordinance makes clear, as I read it, you know, the obligation of the applicant and the assignee, in this case is your client who acquired title in 1999. And, to be fair, I think the applicant needs to accept that responsibility from the time of acquisition, whether they actually knew or not. And therefore I think that it’s important for me, anyway, as a Commissioner, that evidence be presented by you, you know, by the applicant, as to when they actually became aware of 97-102 and its time restrictive requirements. If we don’t have that evidence I cannot even start to consider, really, in my mind, any fairness argument on the part of the applicant. Because if the applicant is not being responsible and the ordinance makes it clear that the applicant is responsible and the assignee of the applicant in this case, Kohala LLC, is responsible for meeting all of the conditions within the time frame spelled out in the ordinance, and that if the applicant is going to ignore that responsibility, then I don’t think the applicant is in the position to argue fairness. LIM:I don’t think the applicant intentionally ignored it. I think they just didn’t know. IWASHITA: Well, I understand your argument, but we need facts. LIM:Well, I think the issue is it’s a conceptual issue. Your argument I think would go to whether you grant the time extension or not; and that’s a separate issue, to me, from do you change the zoning policy because of that failure to follow the time extension. I think those are two totally separate issues. IWASHITA: Well, I understand what you’re saying Mr. Lim. However, what I’m trying to convey to you is that I believe that the applicant for the time extension here and the owner objecting to the down zoning proposal by the Director that the applicant has a EXHIBIT A 12 responsibility to present a complete record to support your unfairness argument, okay, both of them. And so, yes, we can argue philosophically or, you know, whatever term you want to put on it. But what I’m trying to convey to you is that I believe that unless the applicant puts on the record what it knew when, then we can make, all we have are philosophical arguments. We have no evidentiary basis to go forward to really address your fairness argument. So, you know, I would like some suggestion, or maybe we need guidance from Corp. Counsel, as to, you know, how this evidence is going to be generated, whether we require that applicant -. LIM:Then I would request a continuance if that’s something that you need to decide the matter. IWASHITA: And the understanding would be that the applicant would do the necessary investigation and inquiry to present the evidence that I’m suggesting is needed? LIM:I understand that you want to know when the applicant personally knew of the time condition requirements under the Change of Zone and the SMA? IWASHITA: Yes, 97-102. LIM: That’s correct, okay, I can get that. IWASHITA: Thank you. DOMINGO: Mr. Chair? ALAMEDA: Commissioner Domingo. DOMINGO: Thank you, Mr. Chairman. Mr. Lim, your reference to the developer not being a sophisticated developer, my interpretation is that probably you mean that he’s not involved actively in the development arena, therefore not being aware of what he has to comply with at certain time or certain dates; and that unless having hired a professional who might be a planning consultant or even a legal person such as you, the developer as such would not be totally aware of things that should be met at the time intervals. That’s what I’m interpreting you’re trying to tell us when you say he’s not a sophisticated developer. Am I right? LIM:I think that’s correct; and I think that goes more to the issue of good faith on his part. I mean from what I know about the progress of the project, he was fairly stalled in the mid-2004 and 2005 area in negotiations with the one person who was going to jointly develop his property and the one to the south. So it kind of came to a stop; and that didn’t work out in 2005. And so then he retrenched, tried to get the archaeological approvals done and was ready to move forward when we got hit with this issue. DOMINGO: Has the owner even attempted to sell the parcel during the past years? LIM:Other than the proposed joint venture in about 2004-2005 I don’t believe so. I can’t say for sure. I don’t know if he has listed the property or not. EXHIBIT A 13 DOMINGO: Now, you know, going back to Commissioner Iwashita’s statements with regards to fairness, I am reminded of an application which we entertained perhaps a month or two ago with regards to a special permit given to a trucking company who had not met the requirements of the special permit and had not submitted plan approvals and other pertinent information that was required of him during the process of having the permit. And it came before us, and what this Commission did after listening to him on all the facts and weighing the issue, we decided that perhaps, you know, okay, this individual was not aware of what was supposed to be submitted to meet the deadlines imposed on those submittals. And on top of that he had an attorney, a friend of his who was consulting with him and who was carrying the issue around; and he, in fact, did not proceed to submit those requirements in a timely fashion. You know what happened with us? We the Commission, we decided to also at this point to be lenient with him and we said, okay, you sit down with the Planning Director and discuss with the Planning Director what would be the most fair way that we can address this problem. Had this not been addressed, and I don’t know if it had been addressed already, this individual was set to pay a phenomenal amount of fees to the County, you know. So I guess when we speak of fairness it goes both ways. And I think this Commission will, I personally will consider anything that would pertain to the issue of fairness, regardless if it goes one way or the other. ALAMEDA: All right, just following protocol, let me get a couple more questions from the Commissioners. And I wanted to ask, of course, Director Yuen if he has questions, cause then after that Director Yuen has an opportunity to present his case. So, going along the lines of our Commissioners’ questioning? SIRACUSA: I’ll hold that till later. ALAMEDA: Okay. Commissioner Woodward. WOODWARD: Mr. Lim, can you explain to us other than the fact that the owner may not have known until 2001 about the responsibilities, why he didn’t request extension of the time in 2001? LIM:I do not know. All I can surmise is that when he was doing the negotiations with the potential joint venture partner he was kind of leaving it up to them and it just didn’t work out; and it fell through the cracks. I can’t say, I know that he didn’t personally know that you’re supposed to make a time extension request, although it may be because of the terms of the permit he should know. We’re not trying to say that, you know, he never knew. I think that at least as of 2001 when Mr. Fuke submitted the annual report that at least the client should have known, I’m assuming the client read that report. WOODWARD: Thank you. LIM:I think what we’re trying to say is the issue of the time extension for the zoning and the special management area permit is something that you deal with regularly. You’ve done numerous ones of those. And I think that the way the Commission has approached, at least the ones that I’ve been listening to, is that you take the time extension, you look at the project all over again. If there are new issues that have come up since the original passage of the zoning ordinance or the SMA permit you put those issues in and you include those in the new permit or a new recommendation on the zoning to the County Council. That’s another issue, I EXHIBIT A 14 guess; and I’d have to ask Mr. Yuen to give me some guidance on this. But I don’t know that there have been many time extension requests that have been denied by the Planning Commission. There may have been but I wasn’t tracking those. Thank you. ALAMEDA: All right. Commissioner Domingo? DOMINGO: Thank you, Mr. Chairman. Mr. Lim, after the acquisition of the property by the second owner, at what point did you folks contract with Rosendahl to go ahead and conduct an investigation and assessment of the property with regards to those burial sites and historical sites? LIM:I’m not sure of the exact date of the contract, but anything after 1999 should have been under contract with the current owner. I think, my impression of looking at what was happening on the burial treatment program and the inventory level work was that it was an on-going thing that took many years to accomplish. DOMINGO: Thank you very much. LIM:Before I forget, Mr. Chairman, for purposes of what constitutes the record on appeal for the SMA portion of the proceedings, I’d like to incorporate the two voluntary down zonings that I spoke about earlier, which is the Matsuda, John Mitsuda rezoning and for a parcel in Hilo identified as TMK: 2-4-80:parcel 15. And the other would be a voluntary rezoning for the Ag 400-acre district for TMK: (3)6-5-1:parcel 20, which was the Waimea town puu. ALAMEDA: I’m wondering if our staff could allow us to view that so that I could ask the Commissioners if they don’t have any objections to it. Cause we need to look at it, yeah, as Commissioners. Commissioner Siracusa. SIRACUSA: I remember both of those issues, but what I don’t understand is why, why do you want to incorporate those. LIM:I want to incorporate those as evidence of what the Planning Commission and Planning Director have recommended in the past and the fact that those are voluntary rezonings. I don’t believe that there are, at least that I’m aware of, any involuntary down zonings that have ever been passed or SMA revocations that have been passed by the Planning Commission or the County Council. I don’t know everything, but that’s at least what my research shows to date. ALAMEDA: Let me ask Mr. Yuen if he objects to having that as part of the record. Mr. Yuen? YUEN: No. He’s simply referring to a couple of actions that took place in the past. I have no objection to that being, the factual representations that are being made that there were a couple of down zonings that involved the consent of the applicant. There is more information on this that I’ll give a bit later, but there’s a time for that. ALAMEDA: All right, thank you. So there’s no objection by Mr. Yuen to include that as part of the record. EXHIBIT A 15 LIM:That’s for the files from the Planning Department on those, Planning Department, and I guess County Council files on those two rezoning actions. IWASHITA: Mr. Chair? ALAMEDA: Commissioner Iwashita. IWASHITA: What do you mean the files? LIM:You know, for purposes of the record on appeal, I think it’s safer for me to designate the entire file, which would be, you know, if you go down to the Planning Department and the County Council and pick up and ask for a copy of the public records on those issues, then those are the things that I’m referring to. ALAMEDA: From what I understand it’s pretty broad, those files, there’s a whole bunch of information. LIM:That’s correct, but I think for purposes of, you know, if the Commission decides to go on an involuntary down zoning, I need to have as much in the record as I can. YUEN: I have a question. What are you asking? That the entire rezoning of those two actions be put into the record? LIM: That’s correct. YUEN: Seems like a big waste of paper, if your point is only that -. LIM:At this point in time because of the potential negative ramifications of my client, I can’t, you know, I can’t agree to cut off a portion of the record that might be helpful later on. I just am not prepared to do that now. YUEN: Well, if he wants to do it I don’t have a problem with doing it. I think it’s a waste of paper. ALAMEDA: Well, I feel like there’s no general objection by Mr. Yuen to include this. However, just make note that if we do, if this agenda item does continue, I would request from the applicant that we’d bring in all of this, you know, if you want it to be part of the record. Commissioner Siracusa. SIRACUSA: It seems to me that you’re comparing apples and oranges. You want to see the complete files of applications where it was voluntary where the applicants requested or consented to the down zoning; and that has nothing to do with this case which is an involuntary down zoning. It’s apples and oranges, so I don’t see how you can make any comparisons. LIM:Well, for purposes of my legal arguments I want to have those in the record; and as a practical matter I was going to ask later anyway that I would like the Planning Director and the Planning Commission to provide also copies of the files on any involuntary EXHIBIT A 16 SMA revocations and also any involuntary change of zone down zonings. I mean I’m not aware of any but maybe Mr. Yuen knows. YUEN: Well, here, this is where, you know I do have to object if this is an attempt to delay the proceedings from the Commission being able to make a decision today. This is scheduled for hearing, we’re here to have a hearing. If you want to make something into exhibit, you can go get it and bring it for the hearing. ALAMEDA: So if there’s a potential to continue then maybe there’s selected parts of that big file that you could -. LIM:Then I would ask that the Planning Commission issue subpoenas for the applicant to request that information from the Planning Department. ALAMEDA: Mr. Director? YUEN: Yeah. We’re here, this is scheduled for a hearing, we’re here for the hearing, it’s duly noticed. If the applicant wants to come to the hearing with, the applicant knows, they want to bring an exhibit to the hearing, they can bring the exhibit. If they want to get the file from the Planning Department, they can come into the Planning Department and get a file. Nobody needs a subpoena to do that. Again, I’m not concerned with the applicant saying, making representations about what has been done or hasn’t been done in the past. I am concerned about this being an effort to prolong the hearing to bring in evidence that should have been brought to this hearing in the first place. If the applicant thought it was so important to their position and their case that they need to physically have this in the record, they could have done that. Now if the applicant is saying, if all the applicant is saying is that subsequent to, that they want this entered into the record subsequent to the Commission making a decision, I don’t have a problem with that. ALAMEDA: Mr. Lim, response? LIM:I’d like to have that before the Commission. I think that’s something the Commission should see. The Planning Department and the Planning Director is within sole control of his records. Like I said we don’t know of any involuntary rezonings or SMA revocations; and all I can do is ask him. And if he tells me that there are none, then that’s sufficient for me. That sets my record. But we just don’t know. And so that’s why I need that information from him. I mean, realize that this SMA Permit and rezoning have been alive for 10 years, we get basically almost a 30-day notice to come in and defend ourselves. So I think, you know, in light of the serious ramifications to my client and the need for a substantive due process we request that the subpoenas be issued for that information and that we continue the hearing for further proceedings. ALAMEDA: All right. So on the table now is a possible continuance. Are there any questions or concerns about that? Commissioner Siracusa. SIRACUSA: Yeah. Mr. Lim is saying that he wants the Planning Commission to see those files. We already did see those files. We’re the ones who acted on them. And you knew about them because you’re the one who brought it up and you referred to both of those situations. EXHIBIT A 17 So you had ample opportunity to get those files and come in today for it. You know, we carry around so much heavy paper and to have all of those files added to the paper for the next time we have to come before with everything else it seems to be like just a total waste of time; and I would like to make a motion that we deny applicant’s request to continue. ALAMEDA: All right, that may be a little premature. We have a little more to go on that. Any further questions for Mr. Lim? Any questions? IWASHITA: Mr. Chair? ALAMEDA: Okay, Commissioner Iwashita. IWASHITA: I just want to clarify for the record, Mr. Lim, that as of 2001 when Mr. Fuke sent his letter on behalf of the current applicant, that as of that date the applicant for the purpose of this record had knowledge of all of the conditions in 97-102? LIM:That is my expectation. I haven’t specifically asked him that question. IWASHITA: But for the record, in this proceeding it’s clear that as of 2001 the applicant hired a planning consultant, Mr. Fuke, who reviewed the requirements of 97-102 and submitted an annual report as part of the requirements of 97-102, is that correct? LIM: That’s correct. IWASHITA: That also, that 97-102 states clearly that, this is paragraph V, page 10, “Should any of the conditions not be met or substantially complied with in a timely fashion,” and the timely fashion we’re discussing is failure to apply for administrative extension within five years of the original granting of the zoning and also failure to file a request to this Commission within that same five years actually because no administrative extension was granted, “that the Director may initiate rezoning of the subject property to its original or more appropriate designation.” That was part of the ordinance which Mr. Fuke on behalf of the applicant reviewed. LIM:That’s what it says. IWASHITA: Thank you. ALAMEDA: Seeing no further questions from the Commissioners, you have any more questions you’d like to present, Mr. Yuen? SIRACUSA: Point of order, there’s a motion on the floor. ALAMEDA: Yeah, but Commissioner Siracusa, the protocol, we need to have the Director make his presentation, and when he’s done and there’s no testimony, then we go to the motion, according to our procedures. Mr. Torigoe? TORIGOE: Well, at this point there was a motion made, there was no second yet. At some point you would allow for a second to see if it, you know, the motion should be considered. EXHIBIT A 18 And then Mr. Yuen should be allowed to respond, actually both parties should be allowed to respond to the motion. ALAMEDA: Oh, so we could take the motion up now. TORIGOE: Well, the motion having been made, you know, actually, and it’s not a dispositive motion either at this point. It’s just denying the continuance that has been requested by Mr. Lim. Now if something else comes up as the hearing goes on and you find that there is some basis for continuing, then, you know, another motion can be made along that effect, or you as the presiding officer has the power under your Rule 4, you have the power as the presiding officer to continue the matter also. ALAMEDA: Commissioner Siracusa, let’s do that. I’m not clear on your motion. Was it to continue or was it to -? SIRACUSA: It was to deny Mr. Lim’s request for a continuance. ALAMEDA: Oh, got you. Is there a second? So no second, motion dies for now. Mr. Yuen, you have any questions before you present? YUEN: Yes. First on the owner’s plans, Mr. Lim, according to, there’s a letter in the file signed by State Historic Preservation Division that says that they are agreeing to a change in the preservation plan for the property. This letter is in 2001. The gist of the letter is that there was a Historic Sites Preservation Plan that called for interpretation of the sites, that means some kind of signage of the sites that would be posted. And the owner asked SHPD to take away that condition. The sites would still have to be preserved but not to have any signage because the owner wanted to, the owner’s plan was to develop one single family home on this 37-acre property as its development plan. And given that the development would be limited to one home, SHPD agreed to take off that condition requiring interpretation.So it is in fact correct that at some point that around 2001 the owner was planning to only develop the property with one single-family home. LIM:I believe that is correct. He had, and that’s part of the issue in terms of why he vacillated back and forth. That was, I think, his initial intent. Then he entered into the negotiations with the other joint venturer and that fell apart. And so now he’s on his own basically trying to develop the subdivision. YUEN: And just a couple of short questions with respect to getting files. The rezoning files that you are now asking to be put in the record, have you ever requested those from the Planning Department in preparation for this hearing? LIM:We’ve got relevant copies of those. And if I’m forced to and the hearing doesn’t get continued I’ll submit my copies of what little I have. YUEN: You did ask for and obtained the files? LIM:We got portions of the files. As you know, we were never contacted prior to May that this was going to happen in terms of the involuntary rezonings. I would have hoped EXHIBIT A 19 that we could have discussed this before it turned into a public hearing, but, you know, here we are. So that’s why I’m at this point in time trying to set the record. I think that part of the information that we need that I would really like and maybe you can just tell me, I don’t know if you know now, but we really needed to know what the Planning Commission’s prior actions were, if any, on the denial of a time extension request and the involuntary revocation of an SMA permit. I mean if you know that there are none, that’s sufficient for me; and if you say that now, we don’t need those records. YUENNo, there have been, there has been at least one; and I’ll get into that. And then just to keep this orderly you can ask me questions about that to the extent that I don’t explain it. But my question on getting the files, you said you had portions of the file. Is the problem that the Planning Department only turned over portions of the file or is the issue that you only copies portions of the file? You requested the file and got the complete file, correct? LIM:That is correct. YUEN: And you chose to only copy certain portions? LIM:We chose selected portions. But for purposes of this litigation I would like to have the whole file in. YUEN: That’s all the questions I have. ALAMEDA: Mr. Torigoe, do we have to decide upon Mr. Lim’s request for these files now or at the end? TORIGOE: Well, at some point before you adjourn. Let me make a couple of remarks on this. Your rules generally, first of all with respect to exhibits, your Rule 4-18 on evidence speaks to how exhibits are to be presented. And generally speaking, the parties are expected to, under Rule 4-18(f), provide copies, other parties shall be afforded an opportunity to examine the document and to offer into evidence other portions that may be material and of relevance. Generally under Rule 4-18(g) when exhibits are offered in evidence, the original and fifteen copies shall be furnished to the presiding officer with a copy to each party to the proceeding other than the Commission, unless they have been previously furnished; and, you know there are certain procedures that are set up for producing these. So this is one of the reasons why it is becoming a little difficult to keep order at this point because the applicant is asking for your indulgence in just recognizing and accepting quite a few items which are not even before you as copies. Whether, you know, it’s within your discretion to offer a continuance to allow these procedures to be followed so that it’s more orderly. You can also insist on strict conformance with these rules. With respect to subpoenas, similarly, there are rules that discuss how that is done. Your Rule 4-14 speaks of requesting subpoenas, “…shall be valid only if it is physically received by the Commission no later than five working days before date of the hearing at which the subpoenaed witness is to testify or documents are to be produced.” So, you know, your rules provide for certain procedures to be followed so that things are done in an orderly fashion. EXHIBIT A 20 Now there may be situations where something comes up in the course of a hearing that a party did not anticipate, could not reasonably anticipate, and of course in those cases you should do what is necessary to allow a full record and justice to be served. But, you know, these are matters of discretion with the Commission. At this point I just wanted to point out that there are rules and procedures for doing these things; and it’s within the Commission’s discretion, particularly the presiding officer who under your rules has the authority to make decisions on questions of evidence and rules on all objections or motions which do involve a final determination. So there’s a certain discretion that the presiding officer has to manage the way the evidence comes in. ALAMEDA: Mr. Torigoe, I have a question. As the presiding officer, if there are parts of the record that the applicant wants us to review and I deny that request, wouldn’t that increase the probability for appeal later on for an incomplete record, if you will? TORIGOE: Well, any decision that is made on either denying or accepting evidence is potentially an appealable matter if someone is objecting to it or, you know, is adversely affected. ALAMEDA: Commissioner Domingo? DOMINGO: Thank you, Mr. Chairman. I’m wondering if the procedure of what we’re talking about is at this time appropriate. I think what we’re talking about is something that we anticipate might happen but never know that it will happen. But, in any event, there is a step to prepare for that event when it happens. I was wondering if this is at all necessary at this point. ALAMEDA: Well, the discussion is appropriate because the applicant has requested that we consider this potential evidence. But whether we need to consider it or not at this time is like what Mr. Torigoe said, it’s discretionary. Mr. Yuen? YUEN: Is the applicant formally requesting a continuance? LIM: Yes. YUEN: Okay, then I’d like to speak to that for just a minute. ALAMEDA: Sure, Mr. Yuen. YUEN:First, the records that the applicant is asking for are records of prior down zoning actions on totally different pieces of property which apparently happened with the consent of the applicant. If that’s the point that Mr. Lim wants to make, we agree with the point. And so, he’s asking for a continuance to present the physical file of the rezoning. He had the physical file of the rezoning, he chose to make copies of some items of the file and not others. If he had brought those to the hearing we would have had no objections to him introducing them. I don’t know if the Commission is going to make a decision today when it finishes hearing all the evidence. That’s really up to the Commission. But I do think that this is a very flimsy reason to continue the hearing to present exhibits that were completely within his power to bring to the hearing if he thought that they were so important that the Commission ought to consider them, and especially when I’ve agreed with the gist of the point that he’s apparently trying to make. So I do think that the Commission ought to take this as far as it can today, hearing as much as it can, EXHIBIT A 21 try to make a decision, and not continue it for the copying of unrelated and files of very little relevance. ALAMEDA: Commissioner Woodward. WOODWARD: Mr. Lim, did you make any attempt to contact Mr. Yuen after receipt of st this letter dated May 31, to try and work out the situation prior to having it come here? LIM:No. We just talked briefly, I think, one time when I was at his office, but hardly at all. We assumed that because he had publicly gone out with the intention to down zone that there was really nothing much to talk about. WOODWARD: Okay, let me ask Mr. Yuen, did you make any attempt to work this out or to negotiate the situation prior to having it come to us? YUEN: Mr. Woodward, this is, I believe that the land use should be changed. This is not a question to me of whether the applicant is a good person, what they have been doing for the last ten years. It is a belief that the current, the zoning designation which has technically lapsed of RS-15 should be changed to a lower density zoning, in this case RA-5a. So the answer is no, I didn’t initiate a discussion with the applicant. We sent them this letter in a good time; and here we are. That was their notice and here we are seven weeks later to go through this process. WOODWARD: Thank you. ALAMEDA: I’d like to move this along. If there is no further questions for our applicant, I’d like to ask Mr. Yuen to formally present -. Any more questions for the applicant, Mr. Lim? Anything else to add, Mr. Lim? LIM:I’d like to hear Mr. Yuen’s presentation. ALAMEDA: Thank you. Mr. Yuen, would you like to do it from here or up there. YUEN: I think it might be more convenient for the Commission if I sat -. ALAMEDA: Thank you, sure. YUEN: And faced the Commission. ALAMEDA: Thank you. And, Mr. Lim, just for the record and so you know, that your request for continuance I’m going to hold that off for now. Mr. Yuen? YUEN: This is really -. Good morning, Mr. Chair and Members of the Commission. This is really a question about what is the right land use for this 37 acres of oceanfront property in North Kohala. It’s not a question about whether the applicant is sophisticated or unsophisticated, or knew or -. They certainly should have known of the conditions of the rezoning. This is a point at which the Commission on the zoning has to make a recommendation to the Council as to what is the best zoning for the property. And with respect EXHIBIT A 22 to the SMA Permit, naturally if the Commission determines that the best zoning is a 5-acre lot zoning, then it should follow the, naturally -. I mean rather than make an inconsistent determination, it should revoke the SMA Permit which is about to lapse in a few days as well. So, we, Mr. Darrow in his presentation talked about our reasons for recommending a change of zone here. We’ve seen a great deal of development along the shoreline in Hawaii. We’ve seen a great deal of change. We have an opportunity here to move this piece of shoreline to a lower density designation, not to wipe out all value for the owner, all use for the owner, but to move it to a lower density designation so that if it is subdivided later to the 5 acres in the SMA Permit process you will have perhaps seven homes in the viewplanes, seven homes that would be constructed, rather than 50 as allowed by the current SMA Permit, and perhaps even more by the zoning. So I urge the Commission to focus on that land use issue. What is the proper land use for the area? If you look at the map there, this is a very conspicuous piece of property from the highway. The oceanfront is quite close there. The bay itself and the view from the highway, the view of the bay there is identified in the General Plan as an example of natural beauty in the North Kohala District. If you know, the General Plan, there aren’t, they’re typically 6, 8, 10 identified areas of natural beauty in each district. There aren’t hundreds and hundreds of these areas. So it’s something that has been recognized as an important scenic vista. If you also look at the map, you’ll see there’s, this is fairly close to Kawaihae. There’s, about 3,000 feet away, there’s one area of relatively high density zoning that is actually being developed in Single-Family lots. It’s zoned for Multi-Family but it was actually developed as Single-Family lots; and that’s the brown color there. Then the next light green color is a piece of property that came to the Commission for an SMA Permit that’s zoned A-5a, essentially the same zoning as we’re recommending for this piece of property. That landowner on those 63 acres didn’t try to change the zoning from the A-5a. They accepted the 5-acre zoning that they had, came to the Commission for an SMA Permit and is now, and it has received an SMA Permit to subdivide that to 5-acre lots with conditions that are meant to protect public interest, such as the viewplanes in the area. So then you have, looking at the map there, you have this piece of property that we’re here today, which is colored sort of an amber color; and then from that point going north, the next property that’s actually zoned for denser than 5 acre lots is at Mahukona. So for many, many miles along the shore of North Kohala from the Highway to the sea is, actually from that brown color, and I don’t have the exact, it’s something like 10 miles of shoreline is zoned either for Conservation or for 5-acre lots. And so this is what we’re proposing to be the zoning for this piece of property. Now let me turn to the question of fairness which is really being raised to you as an issue of consistency. And the notion seems to be that because the Planning Director has generally gone along with time extensions when zoning conditions have run out and it has become the time for there to be a time extension that the Planning Director always should do something like this. And I think that’s really the argument that’s being made to you, that it should be treated as simply a mechanical or routine decision rather than, as I would say, it’s an opportunity to look at the zoning and see if it’s still appropriate. That’s one of the key reasons to have a time condition of zoning. If it hasn’t been developed according to the zoning, a few years down the road the Planning Commission and the County Council can take a hard look at it and say should this still be zoned for what people thought was a good idea back in 1997. EXHIBIT A 23 So it’s almost like if I were driving down the road with, say when my children were small and we came to a stop sign, and I stopped the car, I looked both ways and I go ahead; and we do this four or five times in a row. And then when we come to another stop sign I stop and I don’t go; and my kid says, well, how come you’re not going, you always go after stopping. And then a car comes whizzing in front of us. And I didn’t go that time because I saw a car coming that was going to hit me. Well, in this case when looking at this time condition about to expire on this piece of property, I see a piece of property that should be changed from its RS-15 zoning in order to protect the shoreline resources. This I believe, and I’m fairly certain of this, that this is the only piece of oceanfront property that has needed a time extension from the County Council on a zoning that has come up while I’ve been the Director. We also, and so if you’re looking at consistency and treating shoreline property, you know, looking at the characteristics of land and what should be zoned we have been consistent in not rezoning shoreline property on this island in this current administration. The only shoreline property that has been rezoned in the 6 ½ years of the current administration was one piece of State land next to Kawaihae Harbor right next to the boat harbor where the State came in and requested a change of zone, somebody had an idea for a commercial use on the site. Now most of the property there, actually the State EOd (executive ordered) for public purposes to the canoe club. So that’s the only exception in 6 ½ years of rezoning shoreline property. So we come up, in this case, with a shoreline property where the zoning has lapsed, the zoning has expired; and we have to take a fresh look, what should the zoning be. And we’re saying not wipe out the applicant’s land, potential use of the property, but to rezone it to RA-5a, in other words, a potential of 5-acre lots. The property is worth quite a bit of money with RA-5a zoning. The property immediately adjacent to it was sold for multi-millions of dollars. I think, and this I hesitate a little bit because I’m going from memory here, but I believe it was sold for $8 million with that zoning. The applicant, the owner went ahead with development on 5-acre lot sizes with that property. We’re not talking about a situation where we’re wiping out value from the landowner by, for example, a down zoning to Open. ALAMEDA: Mr. Yuen? YUEN: Yes. ALAMEDA: We have a request for a bathroom break. Is this a good time to -? YUEN: I’d be happy, I would never ignore a request for a bathroom break. ALAMEDA: Well, we’re going to take 10 minutes. And since there is no objection, I’d like to take a recess at this time. RECESSED The Chair called a short recess at 11:06 a.m. RECONVENED The meeting reconvened at 11:18 a.m. EXHIBIT A 24 ALAMEDA: The meeting of the Commission will return to order. I wanted to continue where we left off with Mr. Yuen’s presentation. I know you were at the tail end but I don’t know how far. Mr. Yuen? YUEN: Yes, and perhaps I should be, I believe I wasn’t sworn in. ALAMEDA: Yes. Please raise your right hand. Do you swear or affirm to tell the truth now before the Hawaii County Planning Commission? YUEN: Yes, I do. ALAMEDA: Okay. How about your name and address for the record. YUEN: Yes, Chris Yuen, 32-832 Old Mamalahoa Highway, Ninole. And just to make sure there’s no objection, to Mr. Lim, that I wasn’t previously sworn in? LIM:We have no objections to Mr. Yuen being who he is. ALAMEDA: All right, thank you. Mr. Lim, you may continue. LIM:And I’ll just close by responding to a few points made by Mr. Lim. One, and I don’t want to beat a dead horse here but to stay on the question of fairness, Commissioner Iwashita read the section of the zoning, the rezoning ordinance that says if the conditions are not complied with in a timely fashion the Director may initiate a rezoning to the original or more appropriate designation, that’s what it says, and that’s what’s happening. Somebody can hardly complain that when the ordinance says you can do that and that’s what the Planning Director eventually does. The SMA Permit has almost the same language. It says “Should any of the foregoing conditions not be met or substantially complied within a timely fashion, the Planning Director may initiate procedures to revoke the Special Management Area Major Use Permit.” And that’s what it says and that’s what’s happening here. There was a complaint that this is a unilateral action of the Planning Director. The Zoning Code says the Planning Director can initiate rezonings of property. The Planning Director can’t rezone property on his own. That, as is happening here, goes to the Planning Commission, and will eventually have to be done by the County Council, which is the only body empowered to make the final decision. But the Planning Director is empowered to initiate that and to make recommendations and to advocate for that. th The question of, and just to address a couple of points that are in the July 20 letter from Mr. Lim, essentially it’s a series of legal arguments. There’s a term called vested rights which means that a property’s rights vest when, in law, that it has proceeded to a point where it cannot be changed by subsequent action. Normally you can, even if this were not up for a time extension, the Planning Director could still do the same thing and initiate a rezoning of the property. At a certain point though, the rights of the owner are considered vested and the Planning Director can’t initiate that kind of a change to the land use designation. Under Hawaii law, that vesting occurs when the project has its final discretionary permit. In this case, without saying that there may be other discretionary permits that are required, at the very least the SMA Permit is clearly a discretionary permit. The SMA Permit is going to lapse in a couple of weeks. EXHIBIT A 25 There is no way that the applicant can obtain final subdivision approval in a couple of weeks. They don’t even have a tentative subdivision map submitted to the County. I think there’s no question about that. The applicant does not have vested rights. One of the functions actually of having a time condition is that if your time runs out your rights are not vested. And the final thing I’d like to say, just in connection with a couple of factual questions, on the question of revocation of other SMA Permits, I didn’t come here prepared certainly to discuss the history of revocation of other SMA Permits, particularly before I was the Planning Director. But I do know that in the 2001, roughly the 2001-2002 period we went through, administratively in the Department, we went through a number of SMA Permits where the time conditions had run out and we brought those to the Commission to revoke because we didn’t feel that we could just administratively say your time has run out. We thought we needed to have a proceeding like this to revoke them; and at least one was contested. I can get the reference to that. But as I recall at least one of those was contested by an applicant who wanted it. So it’s not a, certainly, even if it has never happened before, the Commission clearly has the power to do it and it is something that -. And I think it’s of very little relevance whether it has ever happened before or not. You can always do this. It may be that no SMA Permit has ever come up where it should have been revoked before. But it did happen that a number of permits, and I’m speaking of permits whose time conditions had completely expired and there was no chance of an administrative or -. In this case it’s not that dissimilar because the permit is going to expire in two weeks, but the time conditions had expired and we brought them to the Commission for revocation. And, finally, I do believe that, I know that in the 1970s several properties in Keaukaha were down zoned from Resort to Single-Family Residential, I believe, without the consent of the landowner, but I’m not absolutely sure on that point. Again, it’s a point of very little, very little significance and relevance. If it never happened before, the Commission, or the County Council clearly has the power to down zone property. ALAMEDA: Thank you, Mr. Yuen. Let me just, first of all, acknowledge the public, thank you for coming today. As you know we are behind schedule and we are planning to take a lunch at 12. We do have a testifier for this particular agenda item. So I would like to move this along as quickly as possible without compromising the integrity of this public hearing. So, Commissioner Domingo, go ahead. DOMINGO: Mr. Chairman, thank you. Mr. Yuen, I don’t know if I understood you correctly. But at the whim of a Planning Director, if he or she desires to down zone any property they can do it with no just reason, irregardless of their being a time extension or not? YUEN: No. Well, they must have a just reason on a land use basis, for example, that the property was inappropriately zoned; and there may be examples of, you know, a lot of properties for example was zoned by a land use, by a map in the late 1960s. There was a master zoning map prepared. If one reexamined it, if one reexamined the zoning and said, well, that’s too dense for the area or the community’s desire for the area has changed, you’d have to have a reason for it. It’d have to be consistent with the General Plan and the Planning Director could initiate, can initiate that at any time. It does not have to be tied to a condition of a rezoning ordinance not being satisfied. And this is clearly, I mean, it’s stated in the Zoning Code as the Planning Director may initiate the rezoning of a piece of property and it doesn’t limit it to EXHIBIT A 26 rezoning to a more intense use. The Planning Director can also and has initiated rezonings to a less intense use. DOMINGO: You know, coupled with the issue of time extension with regards to this particular property, I think I heard the Department indicate they looked at this zoning at this particular site and that it was felt that the density, that this development would cause, result in, is not something that is desirable because of the density. Can that be an issue for down zoning? ALAMEDA: Mr. Yuen? YUEN: Yes. ALAMEDA: Mr. Domingo, follow-up? DOMINGO: So, in other words, along Alii Drive if it is felt that the density is so dense and that future development would cause hardship within that area, then there is a cause for down zoning? ALAMEDA: Mr. Yuen. YUEN: The Planning Director or the Council can initiate a down zoning of property along Alii Drive or elsewhere in the County against the owner’s wishes. At some, depending on the stage of permitting it may be that the property has what I referred to earlier as vested rights and that they’re protected from that. But as a general matter, yes, the Council, the Planning Director can initiate a down zoning of property along Alii Drive or elsewhere. DOMINGO: You know, the issue of density for my own reasoning is that I’m more concerned about the density on Alii Drive more than anywhere else, than even considering the density on this one small parcel that we’re zoning. Now, you know, you indicated that there are other 5-acre parcels going north towards North Kohala. But I think, if I’m not wrong, those properties are interspersed between and amongst State land and which probably would render them impossible to develop because of the issue of bringing water to the site as practically, the cost is practically intolerable. But, you know, I just wanted to make sure in my mind what we can do, and what the Planning Director can do, and what is proper with regards to lands zoned throughout this island; and I’m glad that you clarified that. Because as you indicated there is an issue of depriving development, land issue, issues depriving landowners their development rights. You know, there is that issue which is very serious if that is done. Anyway, thank you very much. ALAMEDA: Any other questions? Seeing none, Mr. Lim, you have questions for Mr. Yuen? LIM:He talked about the prior revocation of the SMA Permits, I guess we’ll look to see what he comes up with in terms of the examples that he mentioned. ALAMEDA: Okay. Mr. Torigoe, would this be an appropriate time for a testifier? EXHIBIT A 27 TORIGOE: Sure, you can do that, if the Commissioners don’t have any further questions. ALAMEDA: No further questions? Thank you. Can I ask Jojo Tanimoto to please come forward? Do you swear or affirm to tell the truth now before the Hawaii County Planning Commission? TANIMOTO: I do. ALAMEDA: Thank you. You may be seated. Ms. Tanimoto, can you please state your name and address for the record. TANIMOTO: Jojo Tanimoto, PO Box 44337, Kawaihae, 96743. ALAMEDA: All right. Okay, thank you. Thank you for coming. You may state your testimony at this time. TANIMOTO: I’m sorry, what was that? ALAMEDA: You can proceed with your testimony. TANIMOTO: Thank you. I live in the Hawaiian Homestead Subdivision, which is on the boundary of the, the South Kohala boundary of this picture that you have. This subdivision is on the North Kohala side of the boundary line. So one of the problems that we have is this boundary thing. And I don’t know if that has anything to do with communication or whatever. Now I got my lease from Hawaiian Homesteads in 1986. My residence at the time was the County Spencer Park until such time that I got the Commission’s approval to build in that subdivision right there.At that time it was not these owners that owned that property. It was a Japanese company. And the whole subdivision over there is dependent upon this company’s water that’s on their side of the boundary. And since my residence in Kawaihae there has been a lot of communication with the next door owners before. I have never met my neighbors that own this property. I have never heard from these people. I am aware of this meeting today by accident because it was brought to my attention. Any of the changes and whatever, I regret that I am not up-to-date with the last six years. Prior to that, which would be over 10 years, I am aware of what was going on. I also noted on this picture here that the Na Ala Hele Trail stops on the Hawaiian Home side and then there’s nothing after that, which is the whole boundary of this subdivision. Okay, but my question to the Planning Commission or anybody else is as of 2000 what has changed that these people can come and ask for some kind of revisions? What has changed to improve anything from even down at the Harbor, except population, traffic? There’s still no infrastructure. And I probably am cutting off my nose here because the water is on that side; and if that company turns off the water our whole subdivision, everybody, has no water. And there’s no infrastructure from the County, there’s no availability according to the Water Department. And so I would like to know, oh, before I even ask you that question – is when I came into this meeting I was very happy to hear that you folks have the same concerns so I’m not going to even repeat it. I think there was only that one, what has changed since 1986 to today that allows these people to make any kind of changes from what, or deviations from what the original owners of EXHIBIT A 28 that property agreed to do, or what kind of vision and plans these people have, or who are they? I would really appreciate this Commission, I would request that the Commission put this on hold until we figure out what they’re doing, or where they’re going to go, or anything like that. Thank you. ALAMEDA: Thank you for your testimony. With regards to your questions, we get to ask the questions and, but -. So if a Commissioner wants to take your question and ask the various parties they can. But you just basically get to make your statements; and I think we got the gist of what you’re trying to say. So thank you very much for coming. You may be seated, unless we have any questions for you. Wait, maybe we might have some questions for you. Commissioner Woodward? WOODWARD: Yes, I just had a question. Thank you for your testimony, by the way. It seems to me that you have kind of mixed feelings about this, that this subdivision controls your water but you’d rather not have it developed, is that correct? TANIMOTO: No, that’s totally wrong. WOODWARD: Oh, okay. TANIMOTO: I am not against development of any kind. My concerns have to do with the health and safety of everybody that’s in the area, which happens to be us and them. WOODWARD: Okay. TANIMOTO: They got the water and we don’t. We don’t have an alternative even. WOODWARD: Well, you’ve seen the presentation where Mr. Lim and actually Jeff Darrow gave the presentation that they have 38 acres and they’re planning on building 50 homes there. Is that a bother to you? TANIMOTO: I would say if that is 50 houses more than the plan they originally had it would be because the water allotted and the statement that the other company made at the time was that there would be no changes. And so now you’re going to change, my question has what has changed? ALAMEDA: Very good. WOODWARD: Thank you. ALAMEDA: Hold there, you might have some more questions. Commissioner Domingo. DOMINGO: Aloha, Jojo. TANIMOTO: Aloha. How are you? EXHIBIT A 29 nmkxr`xsg`sadb`trdHtrdcsnrddgdq DOMINGO: How are you? Good to see you. I nml`mxnbb`rhnmrvgdm+hmlxnsgdqkhed-Inin+`qdxntqdedqqhmfsnsg`so`qbdkhmxdkknv+ adb`trdsgdG`v`hh`mGnldK`mcrhritrsrntsgnesg`s- ALAMEDA: Let me give you a mike, Mrs. Tanimoto, so you can -. TANIMOTO: This is Akoni Pule Highway. That’s the ocean looks like. This side is their subdivision and that’s ours where the houses are, the subdivision. This is the mauka side. There’s one more on the bottom. And that’s probably where the bridge is, where they’re trying to fix the bridge. Okay, so my house is right there. I’m overlooking all of this, which has a gate over here, a walkway. The gate is on this side. DOMINGO: So what your concern is is that if any development changes on the mauka parcel, the big yellow parcel that is being entertained, that is your concern at this time? TANIMOTO: Not necessarily. Any development from here down to the harbor, even out to, I don’t know, Ouli Subdivision, would be an increase to any of the infrastructure and support system to this whole area which is fire hazard. DOMINGO: That would be your concern? TANIMOTO: So any changes any where in those areas would be of concern to us in here, any changes. There’s no water, the water stops here, there’s no other lines nowheres that can accommodate all of this whole subdivision. The County cannot do it, there’s no infrastructure. And the water stops here, there’s no water because it comes down the hill from Waimea, yeah. There’s no availability of water to continue it to us. So if they’re going to build anything and the old owners with this knowledge knew, so they said they wasn’t going to do anything else. So if they’re going to change anything, what changed so that they can change, they can do what they like, but they’re going to hold everybody else stay as is? I’m sure, I don’t know, they haven’t told me anything. DOMINGO: Okay. You know, the issue at hand is that which is directed toward -, you know that, okay, towards Kohala you have that blue or green dot, yeah, that’s the one we’re discussing right now. And the change that’s being proposed by the Planning Director is to take away the Rezoning and the SMA Permit. TANIMOTO: Okay. Permit to do something different? DOMINGO: No, it’s nothing different. It’s something that’s been approved over 10 years ago, over 10 years go. TANIMOTO: That’s why I said the original-. DOMINGO: The plan has not changed. There’s no change to the plan, I’d just like to make that clear to you. TANIMOTO: Exactly, that’s why I said that you folks seem to understand that any changes should be deferred at this time; and I would ask that you folks continue in that light, EXHIBIT A 30 until such time that you figure it out. Because the rest of whatever is going to happen is going to be affected, you know, any changes. DOMINGO: Okay. So you’d just like to make it status quo then, same? TANIMOTO: Status quo until such time that something changes. DOMINGO: Okay, thank you very much. TANIMOTO: Thank you. ALAMEDA: I have a question. You’re meaning, somewhat to get clear what you mean by the change, change as in more? Cause what if the change is actually less, like less development? TANIMOTO: If the changes would be less, if the changes would be less? ALAMEDA: Then are you still concerned? TANIMOTO: I would still be concerned. Because then what other changes outside of that box is going to happen? ALAMEDA: Okay, I hear what you’re saying. TANIMOTO: Right now the County of Hawaii is working on the General Plan so the Waimea people are making all of these visionary things and the Kohala people are making all visionary things. But Kawaihae’s vision is not included in there. We have been so far at the point where they think, oh, Hawaiian Homes is a state agency so what Hawaiian Homes decides is right or wrong, but we pay the taxes and whatever of it. Where’s our input? So any changes would include us. ALAMEDA: Any changes, okay, got it. TANIMOTO: Thank you. ALAMEDA: Thank you. Any other questions for our testifier? Very good. Ms. Tanimoto, thank you for testifying today. Okay, now we’re going back to the protocol again. So we go back to, right, Mr. Lim, back up again. Fellow Commissioners, you’ve heard from the applicant, you’ve heard from the Department, you also heard from a testifier. You have any further questions? Okay, final arguments. Can we start with Mr. Lim. LIM:Well, I guess before we get into final arguments, I had a pending request to continue. I think I heard, I know I have to get some information for Mr. Iwashita, I heard the Planning Director say that he needs to get further information also. So I’ll renew the request for a continuance. I think I can work with him in the meantime to scope down the records that we would be submitting to the Planning Commission. I only was doing that to protect the record in case you decide to go against me today. And so for purposes of the continuance, that’s what I would request. I think we could manage the process and the documents a lot better. EXHIBIT A 31 IWASHITA: Mr. Chair? ALAMEDA: Let me just ask real quick and then I’ll ask the Commissioners how they feel about it. But I want to ask the Department about how they feel about the potential request for continuance. Chris? YUEN: As I said earlier, I hope the Commission will take this as far as it can today. I’m opposed to a continuance. The information that’s being requested is of very little relevance and could easily have been obtained by the applicant before this hearing. It seems to be a stall tactic. I am not requesting any further information. The applicant said no SMA Permit has ever been revoked. I said it has happened. I know it has happened. And no SMA Permit has ever been revoked against the applicant’s, the landowner’s wishes, I don’t think that’s of any great relevance that it has happened before. Mr. Lim, it’s Mr. Lim who has raised the issue and I’m only testifying in contradiction to that. And I don’t know, you know, as I say, where the Commission is at with this matter, whether the Commission can make a decision. But I don’t see a need to continue to get evidence that, one, there was a, to get files from a rezoning that happened, couple of rezonings that happened dozens of miles away that were apparently with the consent of the landowner. I accept Mr. Lim’s representation that this happened. I think to the extent that that’s relevant that’s the extent of it. And it’s, nor is it necessary to bring in a file to show that at one point or it may be more than one point in the past an SMA Permit whose time conditions had expired was revoked by the Planning Commission. ALAMEDA: Okay. I would like to ask at this time Commissioner Iwashita, cause he had a request for some information. I don’t know where you might be at with that, Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. My last question of Mr. Lim just clarified for me and then I believe made the record, that I, as far as that addresses the issue, as I see it raised by Mr. Lim, and that basically -. Because it’s clear on the record as far as I’m concerned now that the applicant was aware as of 2001 as far as all the conditions of the 97-102, as well as the applicant’s planning consultant who wrote that letter at that time, I’m satisfied and I won’t require any more information. LIM:I guess I would repeat that even the Planning Director, you know, understand how this process works from the applicant’s side is we go to the Planning Department, we ask whether there are any SMA revocations or Planning Director-initiated involuntary down zonings, we were told no. Now he tells us today that there are at least a couple on either side. That is something that we cannot find out until today. So I think that that’s something that’s very material to our case. We would request for the Planning Director to produce those document or at least make those files available to us then we can bring to you the relevant documents from those files. Those are especially relevant to our argument of equal protection under the law; and I think those are critical for purposes of creating the record on the SMA revocation and the change of zone down zoning. ALAMEDA: Commissioner Iwashita follow-up? EXHIBIT A 32 IWASHITA: Well, I guess procedurally, I guess, my thoughts on how to proceed from now is that the request for continuance is by the applicant. The Director does not want a continuance. And so I guess procedurally, I guess, the only motion I can think of would be to deny the request for a continuance; or if there’s lack of a motion then it just dies on its own. So -. ALAMEDA: I would entertain a motion. IWASHITA: Then I move -. SIRACUSA: So now I’ll repeat my motion. IWASHITA: Go ahead. SIRACUSA: That we deny the applicant’s request for a continuance. ALAMEDA: Motion made by Commissioner Siracusa to deny the applicant’s request for a continuance. Is there a second? IWASHITA: I’ll second. ALAMEDA: Seconded by Commissioner Iwashita. Discussion? Seeing none, staff. DARROW: Thank you, Mr. Chairman. The motion before us is to deny the applicant’s request for a continuance. With that I’ll take the roll. Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: I’m sorry? DOMINGO: Aye. DARROW: Thank you. Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Woodward? WOODWARD: No. EXHIBIT A 33 DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion passes five to one. ALAMEDA: Okay. All right, now moving right along. Commissioner Domingo, you had something to say? DOMINGO: Is a motion in order at this time? ALAMEDA: Well, I want to make sure first our exhibits, let me just check on procedurally -. Mr. Torigoe, would you like to help us out, making sure we follow protocol? TORIGOE: Well, there are a couple of things. First of all, let’s make sure we have all exhibit requests resolved. Mr. Lim, do you still have outstanding a request for the Commission to accept as exhibits rezoning files of other rezonings, has that been officially ruled on? ALAMEDA: Fellow Commissioners, we have a request for the rezoning files at issue. I think it’s irrelevant. As a presiding officer, I’d like to deny that request. Discussion. IWASHITA: These are? TORIGOE: There’s no, I’m sorry. IWASHITA: The rezoning -. ALAMEDA: Commissioner Iwashita? IWASHITA: Sorry. Thank you, Mr. Chair. These are the two prior down zonings that were basically uncontested or consented to by the owners, those are the files you’re talking about? TORIGOE: Let’s get clear on the record. Mr. Lim, if you can tell us do you have an outstanding request at this point for files to be accepted? LIM:That’s correct. In light of the Commission’s vote to deny the continuance, I’m going to submit for the record the copies of the documents that I do have on both the John Mitsuda rezoning, File 825, and the State DLNR’s rezoning for the puu at Waimea that, I believe, is Rezoning 07-000062. So I will on the record give copies to the Planning Department staff for entry into the record. I have several documents for each sections, so -. ALAMEDA: Let me check. Mr. Yuen, do you have any objection to that? YUEN: Just let me take a quick look at it. ALAMEDA: Sure. And, Jeff, if that is allowed it will be Exhibits 7 and 8. EXHIBIT A 34 DARROW: I have one procedural question for Corporation Counsel. ALAMEDA: Sure. DARROW: The motions before us would be within the SMA Permit? TORIGOE: Well, I think we decided this was going to be a consolidated hearing so, which by the way, I don’t know that we had a formal, either a motion or a consensus, that this would be consolidated for hearings.And we discussed it extensively. ALAMEDA: We didn’t yet. Mr. Yuen, go ahead. Wait, Mr. Darrow, follow-up. DARROW: If it’s okay with you, I’ll be using the SMA as the master and just placing the exhibits and the motions relative to the proceeding in there, unless it’s having something to do with the change of zone or the SMA specifically. ALAMEDA: Uh huh. DARROW: Thank you. ALAMEDA: That sounds good. Mr. Yuen, your feedback on the potential exhibits? YUEN:No objection to admitting the exhibits. That’s fine. ALAMEDA: Fellow Commissioners, no objections to allowing the exhibits? IWASHITA: No. ALAMEDA: Okay, seeing none. I’d like to admit those exhibits. Is it 8 and 9, 7 and 8? LIM:One of them is to numerically order them in order after the last letter which was Exhibit 5 from my office. I’ll describe what the Exhibit 6 is, and subsequently -. Exhibit 6 is a September 27, 2006 Planning Commission letter to the County Council on the Jon Mitsuda proceeding. Exhibit 7 is a front page of the notice of public meeting for the Planning Commission’s hearing on September 7, 2006. Exhibit 8 is the Planning Department’s recommendation on the Jon Mitsuda repeal of Change of Zone Ordinance No. 96-81. The next set of documents would be related to the Waimea puu. Exhibit No. 9 was going to be Ordinance No. 96-81 which rezoned it from Agricultural A-3a to Single Family Residential – RS-10, oh, excuse me, this I think is the, this is portion of the Mitsuda parcel, yeah, Exhibit 9 is part of the Mitsuda rezoning, sorry. Exhibits 10, 11, 12 and 13 are going to be related to the Waimea puu rezoning. Exhibit 10 is a June 6, 2007 letter to Pete Hoffman, Chairman of the County Council from the Mayor Kim. Exhibit 11 is the County of Hawaii Planning Department recommendation on Change of Zone Rezoning File 07-000062. Exhibit 12 is the County Planning Department change of zone application background report in Rezoning 07-000062. And Exhibit 13 is the April 11, 2006 Planning Department letter to Peter Young of the Department of land and Natural Resources regarding rezoning of the State parcel. Thank you. EXHIBIT A 35 ALAMEDA: This is a proposal, it’s 10 to 12, I would like the Commissioners to at least take a look at those exhibits before we formally enter it into public record. And which means that I would like to recess now, take some time to review these exhibits going to lunch and come back at about 1 o’clock. Any thoughts on that? TORIGOE: Can I just make sure -. ALAMEDA: Mr. Torigoe? TORIGOE: Okay, again, we probably want to have some kind of formal, either a motion or a consensus on the record to consolidate for hearing these two matters, for one thing. IWASHITA: Without objection. TORIGOE: Yeah. ALAMEDA: Okay, Commissioner Woodward. WOODWARD: I would move that we consolidate Items 2 and 3 on the agenda and that when we vote we vote on two separate items, one is the special permit (sic) and the other is the rezoning application. SIRACUSA: Second. ALAMEDA: Okay, motion made by Commissioner Woodward, seconded by Commissioner Siracusa. Discussion? Mr. Torigoe? WOODWARD: Is that good? TORIGOE: That’s good. ALAMEDA: Commissioner Iwashita? IWASHITA: Yes. DARROW: Just for clarification, that would be the Special Management Area Use Permit? WOODWARD: Yes, sir, excuse me. IWASHITA: SMA ALAMEDA: The SMA. Commissioner Iwashita? IWASHITA: I guess because in my mind, the way I’m thinking about this is that the zoning conditions were not met and one of the conditions of 97-102 is to comply with the SMA Permit requirements, that in terms of when it comes up for a vote it would be easier for me to EXHIBIT A 36 evaluate and analyze to vote on the zoning aspect of our considerations today; and then followed by the SMA. ALAMEDA: Is there any objection? WOODWARD: None. I’ll accept that as a friendly amendment. SIRACUSA: I’ll second it as a friendly amendment. ALAMEDA: All right. So noted. Jeff, you got that clear what we’re going or propose to do? DARROW: No, I’m sorry I missed that. WOODWARD: You’d like me to restate what, it would be two votes, one on zoning to be held first and the second on the Special Management Area Permit. DARROW: And they would be, we have four actions before us. So we have two time extension actions, one for the change of zone, one for the SMA; and we have two Planning Director initiatives, one for the change of zone and for the -. So we actually have four -. WOODWARD: Well, part of the motion was to consolidate Items 2 and 3 on the agenda. So that a vote on one affects the other; and they’re the same topic. So the vote on zoning comes first, up or down, and then the vote on the Special Management Area Permit. ALAMEDA: Okay, -. Mr. Torigoe? TORIGOE: Yeah, I think that’s probably about as much as you’d want to tie yourselves into at this point. You know, from this point on if the motion passes then you can entertain various, other variations on the thing? ALAMEDA: Let me check with Mr. Lim. Your thoughts on what we’re proposing, with the procedures? LIM:No, no position. ALAMEDA: Okay. Mr. Iwashita, you have any other -? You’re okay? IWASHITA: Yes. ALAMEDA: All right, are we ready to take a few minutes of recess? Jeff, can you reiterate the motion before us. DARROW: The motion before us is to consolidate Agenda Items No. 2, which is the Planning Director’s initiated actions, change of zone and revocation of the SMA Permit; and Agenda Item No. 3 which is the time extension requests for the Change of Zone and SMA Permit 379 for Kohala LLC. And, again, the motion has been clarified that there will be two votes, one for the Change of Zone and one for the Special Management Area Use Permit. EXHIBIT A 37 ALAMEDA: Okay. Seeing no further discussion, staff. DARROW: Thank you, Mr. Chairman. Commissioner Woodward? WOODWARD: Aye. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion passes six to zero. ALAMEDA: Mr. Torigoe? TORIGOE: Thank you, Mr. Chairman. Okay, as you go to lunch, there’s one thing for the parties and all of you to think about, and I want to mention that as you look at the possibility of the structuring of your voting, Mr. Bancroft came up and asked me an interesting question, which was basically would it be possible for there to be a vote on the rezoning, which would go to Council, and then to continue the SMA Permit matter to see what happens at the Council because, you know, the SMA matter really ought to be consistent with what happens at the counsel. And I’m going to be looking at that over lunch, but I just wanted to raise that for the parties and you all to think about. ALAMEDA: Thank you for your insight, Mr. Bancroft, very good. Seeing no further objections for a recess to review some of these documents and to break for lunch, I want to adjourn and come back at 1:15. Thank you. RECESSED The Chair called a recess at 11:50 p.m. RECONVENED The meeting reconvened at 1:20 p.m. EXHIBIT A 38 ALAMEDA: The Hawaii County Planning Commission now returning to order. All right, thank you public for your patience. Moving back to where we started or where we left off. We did review the documents. I’d like to ask Mr. Yuen and Mr. Lim if there’s any other evidence that you’d like to submit for the record. YUEN: Chris Yuen, Planning Department, no. ALAMEDA: Okay. Mr. Lim? LIM:Steve Lim for the applicant, nothing that we’ve not already requested be entered into the record. ALAMEDA: I’m thinking of if there’s any other procedural issues that we haven’t considered, I want to ask Mr. Torigoe. TORIGOE: No. I think at this point I just would ask the parties if there are any other procedural issues or objections to the procedure that we’ve followed that we need to deal with it at this point before we go into a decision-making mode. LIM:For Kohala LLC, of course, we have an objection to the denial of the request to continue the hearing to conduct adequate discovery with the Planning Department; and I would like to make an argument at the end. ALAMEDA: Mr. Yuen? YUEN: No, no procedural issues. ALAMEDA: Let me see, in terms of protocol, do we do closing arguments and then -? TORIGOE: Yeah, you can offer that. ALAMEDA: All right, we’ll go with Mr. Lim, and then Mr. Yuen, and then back to Mr. Lim. Correct? TORIGOE: Right. ALAMEDA: Okay, Mr. Lim. LIM:I’ll just be brief. Thank you very much, Mr. Chairman and Members of the Commission. The reasons for the Planning Director’s down zoning of the property and revocation with the Special Management Area permit are founded upon his beliefs that this is not the right use of the property, I think was his words, that there are visual impacts that are going to come off the project, and that the density is such that it shouldn’t be continued. I think the starting point for the County Planning Director and the applicant is different. He’s treating the starting point of this discussion as if the lands were in the State Land Use Agriculture and zoned Ag-5. I think it’s critical for our purposes to stress to the Commission that we do have an existing Zoning Ordinance and existing Special Management Area Permit, albeit the time conditions weren’t met. But that is not any different than numerous other time conditions that EXHIBIT A 39 you’ve allowed to move forward. As I stated before on behalf of the applicant, the time condition issue can be addressed by the Planning Commission on the SMA and the County Council by revising and updating the conditions of approval and not taking away the entitlements, which as far as we know hasn’t occurred at least in the last 8 years. The precedent I think is very dangerous. At this point in time any property owner is subject to a petition by the Director for an involuntary rezoning or revocation of a permit; and this is in light of an existing Special Management Area Permit and a Change of Zone Ordinance which both addressed the voluntary downsizing of the project from approximately 110 total possible units to 50 units. And the direct terms of the Special Management Area Permit No. 379, it says that the proposed development is “consistent with the County General Plan and Zoning Code.” I’ll paraphrase some. The average density relating to the 50 lots over the 38 plus acres would amount to 1.5 units per acre; therefore consistent with the urban form depicted on the LUPAG Map for the General Plan for this area. The visual impacts along the coastal viewplane and open space of the development will be somewhat diminished as the site is located makai of the Akoni Pule Highway. To mitigate these concerns there will be design guidelines to ensure the project when fully developed will only minimally affect coastal viewplanes. Covenants will be developed to restrict structures to certain sizes, building pads, envelopes, colors, materials, etc., to minimize mauka/makai viewplane, impacts from the highway, as well as to minimize excessive alteration of the area’s natural terrain. The potential for retaining the regional vistas will still exist. These are statements directly out of an existing SMA Permit, and the record in the Change of Zone is going to be very similar. The applicant feels that the County is inappropriately attempting to rezone the property and revoke the SMA Permit; and they’re doing so without any change, and I’d like to stress this, without any change in the official County of Hawaii policy on the General Plan for this area. That, if that had happened, I think we wouldn’t be here today; but that didn’t happen. The only change that we got was the May 7, I think it was, 2007 letter from the Planning Director saying I’m taking your zoning down. To us it’s a denial of equal protection and we think it’s going to be a taking. I think that the issue can be better handled in terms of how the development comes down. As the Planning Commission has done in numerous cases before on these time extension requests, you work with the developer and the Planning Director to develop conditions of approval that address any updated concerns. I’m not aware, as I said before, of any time extension requests that got denied that would essentially take away the zoning or the SMA Permit for our project. So again, I guess, I close with we think that the County General Plan which is one of the laws of the County of Hawaii and the existing SMA Permit and Change of Zone are fully supported by law and that absent any change in those planning and legal documents that the proposed down zoning is inappropriate. Thank you. ALAMEDA: Thank you, Mr. Lim. Mr. Yuen, closing arguments? YUEN: I’ll try to be brief. If this were a situation where there was no strong public policy reason to change the decision that had been made by the earlier zoning ordinance we would probably recommend a time extension as we’ve done in many cases in the past. But I think we pointed out what’s different about this one, and there has been a change in the last EXHIBIT A 40 dozen years or so. We’ve seen a great deal of shorefront development on the island, we’ve seen a great deal of negative effects of that. And we have an opportunity here, and we’re not saying that this is an area that we’re going to keep open and we’re going to take all value away from the owner, but that we can make it a more open area, we can lower the density, and we can take this opportunity. The applicant’s argument is essentially that zoning goes on forever, even though there are time conditions that are supposed to be met and even though the ordinance says that we can do exactly what we’re proposing to do right here. There is one point that I think is a small point of misunderstanding by the applicant, that they could have done a denser project under the zoning. Although numerically the RS-15 zoning would permit more units, the zoning ordinance always limited the project to 50 units. That was in the rezoning ordinance. Possibly it allows a lot size of 15,000 square feet but it does have a 50-unit limit. And finally on the question of the General Plan, although the General Plan may have not have changed, there are different points of emphasis in the General Plan. And the community and people making a decision on land use projects like yourselves as the Planning Commission, like the County Council, like myself as a Planning Director, can decide that the times call for a different emphasis. In 1997 there was one emphasis. Today, 2007 really with what we’re seeing in the island the emphasis really should be on protecting and preserving what we have, particularly in the crucial shoreline area. ALAMEDA: Thank you, Mr. Yuen. Mr. Lim, any final responses? LIM:I think that the limitation to 50 lots in both the SMA and the zoning was a reflection of the Planning Commission and the County Council’s belief that that level of development on this particular zoned property would be sufficient to protect the cultural and visual impacts and the General Plan criteria. So we believe that that decision was made and that it’s more appropriate for the Planning Commission at this point in time to enact updated conditions of approval rather than to revoke the zoning and the, I mean, excuse me, to recommend down zoning and to revoke the SMA Permit. Mr. Yuen talks about different emphasis between 1997 and 2007, but that’s just his statement. I have to rely on the law, and the General Plan established the criteria for this project. It was found in the SMA Permit that it is consistent with the County General Plan for 50 residential lots; and that the failure in 2005 of the County to reclassify this particular property down to Open or Conservation on the General Plan will, is indication that this property should remain as presently zoned. I think that we would like the opportunity to work with the Planning Department and the Commission to make this project move forward. We’ve finished the archaeological studies to enable us to do the lotting and that would have been our next step towards moving towards development of this project. I ask for your support. Thank you ALAMEDA: Thank you, Mr. Lim. All right, Fellow Commissioners, I believe, before I close the hearing, are there any final questions that you might have for either Mr. Yuen or Mr. Lim? Okay, seeing none, do we need to make a motion to close the hearing? TORIGOE: You can close it. EXHIBIT A 41 ALAMEDA: All right, if there’s no objections to closing the hearing at this time, I’d like to do so. Seeing no objections, the hearing is closed. Okay, moving forward, I’d be open to entertain a motion, or if you want to discuss first that’s fine.Commissioner Iwashita? IWASHITA: Yeah. So we’re proceeding with the zoning first and the SMA second? Is that still the procedure we’re going to follow? ALAMEDA: That’s correct, unless, that’s correct. IWASHITA: And we’ll then address both agenda items, the zoning aspects of both Agenda Items 2 and 3? ALAMEDA: That’s correct. IWASHITA: Okay. Then I move that Kohala LLC amendment to Change of Zone Ordinance No. 97, that -. SIRACUSA: Could you speak louder, please. IWASHITA: Oh, I’m sorry. Okay. My wife usually tells me the opposite. I move that Kohala LLC amendment to Change of Zone Ordinance No. 97-102 (REZ 866) be, can we do both together, be denied and then approved? ALAMEDA: Mr. Torigoe? TORIGOE: Yeah, I think you could do that. Just going in order from Items 2 to 3, basically you’re taking 2(a) and 2(b), I think, along with 3(a).So if you’re basically looking for a negative recommendation to Council on 3(a) and a favorable recommendation on 2(a) and (b), is that what you’re doing? IWASHITA: Yes, yes. Okay, so I can do two. Start all over again, Jeff. I move that the Planning Commission forward a favorable recommendation on Initiator Planning Director Change of Zone Application from RS-15 to RA-5 and we forward a negative recommendation on Kohala LLC amendment to Change of Zone Ordinance No. 97-102 (REZ 866). SIRACUSA: Second. ALAMEDA: Does that include 2(b)? IWASHITA: I’m sorry? I’m missing something? ALAMEDA: Does that include 2(b)? IWASHITA: Yes. ALAMEDA: Okay. Is there a second? SIRACUSA: Second. EXHIBIT A 42 ALAMEDA: All right, motion made by Commissioner Iwashita, seconded by Commissioner Siracusa. Discussion? Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. ALAMEDA: Sure. IWASHITA: Essentially, I support the Director’s position in that this is 2007, it’s not 1997, that the, you know, in my two years or so on the Commission the concern about the impacts of all these shoreline management developments has been a continuous and genuine concern on the part of this body and that we have taken several actions, you know, to protect, our job is to protect the environment and implement the General Plan. And I believe that in our taking this particular action that we will be implementing the General Plan. And in that regard I disagree with Mr. Lim in that the General Plan somehow supports his position. The General Plan clearly directs us to take into consideration the environment and adverse impact on the environment, and viewplanes, and so forth. And at this point given the applicant’s failure in the last ten years to comply with the time requirements of 97-102 that that is not the Commission’s fault, that is not the County Council’s fault, that’s is not the Planning Department’s fault. All of the failure on the part of the applicant is basically the applicant’s responsibility. And in failing to meet up to that responsibility, I don’t think that an argument can be made of equal protection or loss of rights, and so forth. So that is the basis for my making the motion and supporting this motion. ALAMEDA: Commissioner Siracusa and then Commissioner Domingo. SIRACUSA: Yes. I have several points I want to make. I have notes all over the place here. The progress report that was submitted on 2001 and the year when the five years was up for the plan approval, the final subdivision approval to be submitted, that was 2000, a year before. In other words, the new owner had ample time in order to file a request for an extension, if that new owner had been exercising due diligence. The delay that was due to State Historic Preservation Division, obviously there was a delay that was not the fault of the applicant; however, the applicant knowing that there was a delay, that things weren’t moving according to the preferred schedule, had an opportunity at that time to apply for a time extension. And it would have been a valid reason and could have been granted; however, the applicant did not do so. By default through applicant’s failure to act, they are in a sense giving consent to the down zoning. It’s just like if you are called to, you know, called to answer a charge and you don’t show up and they file a default judgment against you, you have no say after that. You’ve given up your rights by failing to show. And, in a sense, it seems to me that that’s what the applicant has done here. So it’s not a case of without consent or without the applicant’s request. The applicant by failing to file an extension literally waived that right. Finally, no, not finally, and ultimately, the applicant mentioned that there were no testifiers today to testify against his request for a time extension. But by the same token there were no testifiers today to testify in favor of his request. So I think that argument just doesn’t hold any water. And last but not least, between ’97 and 2007, that’s ten years, and all of us who live on this island have seen dramatic changes in ten years. We have seen huge population leaps, go through EXHIBIT A 43 birth increases, natural population increases, and in-migration. We have seen, you know, what happens in areas where the traffic jams, there didn’t used to have to be traffic jams like that in Kona, you know, in Hilo or in Waimea, and we have them now. There have been a lot of changes, including Senate Concurrent Resolution179 and 146 in 2001. The General Plan which was a new General Plan was put through, there have been concurrency resolutions coming through the County Council and at the Mayor’s request, and the Community Development Plan. And I think that all those changes in the intervening years argue that the situation has changed dramatically and requires a different response than the Planning Commission gave originally back in ‘97. So I am going to vote in support of the Planning Director’s Agenda Items 2(a) and (b). ALAMEDA: Thank you, Commissioner Siracusa. Mr. Domingo? DOMINGO: Thank you, Mr. Chairman. I speak against the motion. And I do so with strong feelings with regards to the General Plan which more than likely is known to be the sacred document in the realm of planning and, along with that, with the zoning that is in place, and with the SMA Permit that was approved for this particular development. What this tells anyone in this audience and those who own property that at any time there is a feeling among some individuals to down zone their property and to prevent them from improving it and developing it, you know, it’s something that can be done to them also. That’s a scary part. That’s a principle and the concept that we’re looking at today. This zoning was granted in 1997, the County Council, the ultimate body which determines General Plan Amendments and zoning, decided at that time that this is what is best for this particular area. And they have been aware of that and they have not initiated any zoning. If there was any change in the minds of the County Council with regards to the density and development of this particular area, they surely would have initiated some rezoning requests to be considered by the public. Just because, just because there have been some changes or drastic changes in the way this island has grown and the direction growth has taken place does not give us license to come up arbitrarily and take away an individual’s or developer’s right to zone and develop their property. That is wrong. And that can be applied to any one of us in here with property that is already zoned for development. Certainly you wouldn’t want that thought to be in your mind as you live from day to day knowing some day that there will be some individuals who will be taking your zoning away and prevent you from developing your land. Now one of the important factors, the overriding factor here today is with regards to concern for density and the density that developments would cause, not only in this particular instance but in other places. And as I’ve indicated earlier today, you know, I would be more concerned about development on Alii Drive in Kona with regards, as it pertains to density. But today we’re continuing to entertain applications for SMA Permits which would permit them to develop their property and increase the density on Alii Drive. The zoning to those properties were granted years ago, 10, 15 years ago, but it has come to a point at this time that they feel that it’s possible for them to develop and improve their property and provide for other units because the market is there. You know, there are many factors I think we should consider in developing one’s property. And I think this developer in this particular case has gone through the aches and pains of deciding what to do, whether it be the financial aspect of improving or developing a property, or whether or not the market is ripe to go ahead and develop. You know, that’s the risk developers take today. But in this particular case, when the second owner took hold of the EXHIBIT A 44 property immediately after that or shortly thereafter they went to continue and acquire a study of an assessment of their property with regards to historical sites, burials and all that. And only, only last year did they receive a reply from the Department and the, I think, the consultant. You know, as in the past, as this Commission had entertained issues of revocation of permits, and I mentioned that this morning with regards to a trucking company who had not complied with the request of the special permit and he was, he was assessed as a penalty an amount, probably amounting up to $40,000 or so. Did we go ahead and revoke that permit? No, we told the Planning Director get together with this individual and see what you can do to make things right. I don’t think we as Commissioners, you know, we’re lay people, we’re not planners. We’re lay people. I think I’m more akin to the feelings of an individual rather than be more tied in with the documents of legality or not. I’m concerned about individuals and how they think, and how they react and what is really in here, you know. So in that respect we said okay, go back and work things out. To the Planning Director, work things out with the trucking company and see if you can resolve this. And I think there have been some positive results in that respect. I haven’t had any report; but I would assume that there has been. You know, I ask this Commission to look at this issue very closely. There’s a strong principle inlaid in this action that we will be taking, and that is a person’s or owner’s right to develop his property. We know that in the course of that development difficulties come in a way which precludes them from meeting deadlines and the submission of documents. That comes in the way. I think we should look at this closely and consider an individual’s plight here with regards to developing or not to develop the land. If we support the Planning Director’s decision, what we’ll be doing is taking away this developer’s right to develop; and that in the event in the future if he decides to come and apply for a rezoning and ultimately ask for an SMA Permit application, then it will be even harder for him; and that would be certainly unfair for him to go through the hoops as he will have to do if we do take this action today. Thank you, Mr. Chairman. ALAMEDA: Thank you, Mr. Domingo. Any other comments? Commissioner Woodward. WOODWARD: I would agree with most of what Commissioner Domingo has just stated. And there are a couple of things that bothered me about this. One is he’s right, we have had numerous occasions where people have not met their statutory obligations and we’ve always worked with them. In fact, the other thing that bothered me is Director Yuen has more or less said directly that that’s really kind of an excuse because, you know, we want to rezone that anyway because we feel that’s an inappropriate use of this property. And so we’re coming down on him; and that bothers me. And I think it is somewhat arbitrary and capricious for us to say, well, that’s the way we feel this property should be used; but anybody else that come up and violates their time requirements or whatever, we work with them. But no effort was made to work with these people. So I’ll have to vote against the motion. ALAMEDA: Commissioner Siracusa, anything that you wanted to add? SIRACUSA: Yeah, I just wanted to address two points. One was about the trucking company, and that failure to comply was only about a year in terms of time. This here we’re looking at ten years down the line. So I think there’s a question of extent, you know. And, also, we’re not taking away this company’s, this applicant’s right to develop.We’re just taking away EXHIBIT A 45 the right to develop in a specific way. And, I mean, as Director Yuen pointed out, he can still do a development with 5-acre lots; and that would be allowed. So it’s not that we’re taking away all his rights completely. We’re just revoking a permit that he had the opportunity for, ten years, he had the opportunity to put in an extension request and failed to do so. ALAMEDA: All right. I don’t think we need to continue convincing each other. I think we’re pretty set in our ways already. I’m ready to vote, if anything. IWASHITA: Mr. Chair? ALAMEDA: Go ahead, Commissioner Iwashita. IWASHITA: I have to apologize to Chair because I’m compelled to say -. ALAMEDA: Okay, all right. Just keep it brief. IWASHITA: Yes. I agree with Commissioner Domingo that this body cannot act arbitrarily and that we have an obligation to recognize that private property owners do have rights due to them. Those rights aren’t unlimited though. That’s the whole basis for our land use regulation system. In this particular case, my emphasis is, there’s no question that this applicant and the original applicant that got 97-102 passed, that both parties had the opportunity, which we have not taken away and we can’t take away because that opportunity was for five years or more, actually up until today. If they had just, either owner had actually taken 97-102 and done the things, gotten the planning done and gotten the final subdivision approval, we wouldn’t be here today. None of that is being taken away or, you know, we can possibly take that away. What the applicant is asking is for more time to do those things; and with the passage of time comes change of conditions. And neither the applicant nor this body, I think, can ignore the fact that conditions have changed in the past ten years; and I for one have to recognize that. I think I’m especially or maybe today more sensitive to that because I just got back from lost wages and, you know, I met a realtor/developer person there, and in the past five years, you know, Las Vegas has seen the kind of development most places don’t see. And, you know, we’re not going to see anything like that here. But we are at a point in terms of the development of this island that as the Director indicated in my mind it’s almost the tipping point. Either we start taking our environment seriously now and we make decisions that take that into full account and protect as much of it as we can or -- and, you know, because of private property owner rights that’s going to be a challenge -- we’re going to be facing this for years and years to come. And I for one think that, and I believe there is an important principle that we’re working on today; and that is to apply the genuine concern that we should have for the environment, especially in our coastal areas, and do take this opportunity as we fully can under our rules and under the law, following the law, and protect as much as we can in this particular case. And then I would urge we continue to do that in looking at other applications. Thank you, Mr. Chair, for your indulgence. ALAMEDA: Thank you. Anyone else compelled enough to respond to that? Very good. All right, we have a motion on the table made by Commissioner Iwashita, seconded by Commissioner Siracusa. Seeing no further discussion, staff? DARROW: Thank you, Mr. Chairman. The motion before us is actually voting on three items of the agenda, Item Nos. 2(a), 2(b) and 3(a). This will include the Planning Director EXHIBIT A 46 initiating Change of Zone from Single Family Residential 15,000 square feet or RS-15 to Residential-Agricultural 5-acre (RA-5a); the repeal of Ordinance 97-102, which rezoned the property from Agricultural 5 acres to Single Family Residential 15,000 square feet or RS-15; and, lastly, the amendment to Condition C for Rezone 97-102. So with that, the motion is that they send a favorable recommendation for 2(a) and 2(b) and an unfavorable recommendation for 3(a). Sound clear? ALAMEDA: I got it. DARROW: With that, I’ll take the roll. Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Domingo? DOMINGO: No. DARROW: Commissioner Ogata? OGATA: No. DARROW: Commissioner Woodward? WOODWARD: No. DARROW: And Mr. Chair? ALAMEDA: Aye. DARROW: The motion does not pass three ayes, three noes. ALAMEDA: All right, Mr. Torigoe, what will be the next step in this process? TORIGOE: As you know, on rezoning amendment matters, let’s see, this is interesting because part of it is initiated by the Director and part is initiated by the property owner. Something that is initiated by a property owner, you have 90 days after receipt of the application, unless a longer period is agreed to by the applicant to get a decision of five votes; and if that fails then it’s considered an unfavorable recommendation. On the matter that’s initiated by the Director, there should be a decision within 60 days after receipt of the amendment. And if the Commission fails to act within 60 days then the action is considered as unfavorable by the Commission. So staff, I suppose, first we should ask if you can confirm to us that this can be put back on a Kona agenda within 60 days of the transmittal to the Commission from the Director. ALAMEDA: Try and see what the calendar allows for. Phyllis? EXHIBIT A 47 st FUJIMOTO: Yes, we do have a scheduled August 31 date in Kona. We are not sure about a September meeting because of a conflict. st ALAMEDA: August 31. Does that make it within the 60? FUJIMOTO: Yes, it would. We could put it on the August agenda. ALAMEDA: Okay. TORIGOE: So, yeah, unless someone comes up with some other form of a motion that maybe five votes could support, that seems to be what you should do with the rezoning part. The SMA part you have not touched yet but it seems like, again, you know, it seems that it’s going to be a split vote. Now on that one the rules are a little different. Your Rule 9-11(f), that’s on page 9-16 of your rules, it says that within a reasonable time not to exceed 30 calendars days after the conclusion of the hearing or a longer period as may be agreed to by the applicant then you should render a decision, again requiring five votes. If you fail to render a decision to approve or deny within that 30-day period, then the request shall be considered denied. The applicant can also request the authority to defer action, but that requires a majority vote of the Commission; and if the authority fails to render a decision to defer the action within that same time limit, that request is considered denied. So basically we start, it starts with you closed the hearing today, so you have 30 calendar days in which to make a decision. Staff, can you tell me if we will be, is August, oh boy -. DARROW: August -. WOODWARD: Mr. Torigoe, if I might make a suggestion, from what you just said, it’s or a later date if agreed to by the applicant. Perhaps if we vote to defer action, if it’s all right with st the applicant’s attorney, we can consider both those matters at the August 31 meeting even though that’s beyond the 30-day limit. TORIGOE: Right. I think that’s within your authority. ALAMEDA: Can we ask Mr. Lim? LIM:On the Planning Director’s initiated Change of Zone application on Agenda Items 2(a), I guess 2(b) and 3(a), excuse me, 2(a) and 2(b) for agenda items, the applicant cannot stipulate to extend the time limit. ALAMEDA: Was it the 90 days, Mr. Lim, or the 60? LIM:That’s the 60-day time limit in Planning Commission Rule 11-3(c)1., Capital Bravo. st TORIGOE: Okay. But for the August 31 meeting, I’m sorry, what was the date? st DARROW: August 31. EXHIBIT A 48 st TORIGOE: Yeah, August 31 meeting. DARROW: So we’re within the 60 days. TORIGOE: That’s still within 60 days. DARROW: I think the issue is the SMA application. TORIGOE: Right. LIM:Could I ask a point of order as to when the proposed amendment was initiated by the Director? I’m not able to tell. Was it the May 7, 2007 letter to the applicant? YUEN: I think the wording is 60 days from the transmittal to the Commission. ALAMEDA: Would that be today? TORIGOE: Let’s see. It says 60 days after receipt of the amendment from the Director. So -. LIM:For procedural record purposes, can you tell me what date that was? DARROW: That would be July 11, 2007. IWASHITA: That’s the date of receipt by this body? DARROW: That is the date that we sent out the background and recommendations to the Planning Commission; and that’s the date that we can verify that it has been submitted to the Commission. IWASHITA: Mr. Chairman, my concern is that, you know, we get it for preparation purposes but we don’t officially meet as a body until today and to considerate it. So I would say that we got it today. WOODWARD: Mr. Chairman? ALAMEDA: Sure. thst WOODWARD: In any case, it’s within 60 days. Even if July 11, August 31 is still within 60 days. The question is whether Mr. Lim is willing to accept a vote on the Special st Management Area Permit at the same time, the 31, which would require an extension beyond the 30 days. ALAMEDA: Mr. Torigoe? TORIGOE: Well, I suppose another thing you could do would be to reopen the hearing, you know, to allow for any further evidence that you may want to ask the parties for and EXHIBIT A 49 that would extend, well, that would basically extend the trigger because the 30 days begins from the time that you conclude the hearing. But that’s up to you. SIRACUSA: Excuse me, we have already have voted to consolidate the matter so I don’t see any need to reopen the hearing. But I could see where we could decide to take the vote on the SMA Permit and then let the time frame play out from there. ALAMEDA: Could we ask the applicant if he would be willing to consider the SMA st Permit on the 31? Is that an option? TORIGOE: Yeah, that’s what I think was being discussed, is that the applicant may request the authority to defer action, and that would extend the time. LIM:I’m not clear on the time frames under the rules for the SMA Permit. Maybe you can enlighten me. TORIGOE: Yeah, I’m looking at, on my version, well, that’s Rule 9-11(f) and in the current version that’s page 9-16. And it is kind of a convoluted rule but it says, first paragraph talks about the 30-day deadline or within a longer period as may agreed to by the applicant. th LIM:Okay, so that means that within 30 calendar days after today, July 20, you have to make a decision one way or the other. TORIGOE: Right. st LIM:And the next Planning Commission meeting is August 31? TORIGOE: In Kona. DOMINGO: Mr. Chair? SIRACUSA: I have a procedural question. TORIGOE: Commissioner Domingo had a question. DOMINGO: It’s aside from determining the time when it should be considered, I have another clarification. ALAMEDA: Okay, procedural question, Commissioner Siracusa. SIRACUSA: Yeah, is there a difference in what would happen afterwards if someone made a motion to approve the applicant’s request to extend time on the final approval for the SMA and we split three-three the way we did on the other vote? Or if we did it just on the Planning Director’s and we still had the three-three split, would the results of how it plays out afterwards be the same or different? ALAMEDA: Mr. Yuen? EXHIBIT A 50 YUEN: I’m going to answer that question indirectly. But let me first make a recommendation, that the Commission do take a vote on the Planning Director’s initiative to revoke the SMA Permit and the applicant’s request to extend it so that there is a vote, so that the Commission had dealt with it and taken a vote on the record. Then at that point it is up to the, and it may be split. I don’t ask you to have a lot of debate on it.It may be a split vote. But the matter has been brought to the Commission and the Commission has taken a vote on it. Then let me discuss what happens after that; and that is, and this is for Mr. Lim as well, and I’m not going to engage in gamesmanship on this. Because what is going to happen is that if the time is not extended there is a 30-day time frame to act on either. So the revocation doesn’t meet the time frame. His motion to extend time does not reach the time frame. If they do not extend time on the SMA Permit, the time has expired and his SMA Permit becomes defunct. All right. Now you have a split vote today and then the Commission has a, if there’s a time extension the stst Commission can take a vote again on August 31. If there’s a split vote on August 31, with neither one being affirmative or not, and if it’s due to the lack of there being 9 people here, which is the typical reason, there is a special provision in the SMA Rule that allows for a second vote on that question, one more vote. And if that vote is again split, then both the request to extend, the effect is the request to extend time is denied and the revocation is also denied. SIRACUSA: So what do we end up with then? Because they’re opposite? YUEN: You end up with a defunct SMA Permit. ALAMEDA: Mr. Torigoe, you had something? TORIGOE: Yeah, Mr. Chairman, I’m not sure that I would agree, you know, that if there is no decision made by the time that the original deadline for the final subdivision approval is met that you have a defunct permit. I don’t know that I would say that the permit itself just automatically expires because, well, for one thing, the language of it seems to indicate that what happens then is that the Planning Director can initiate revocation. So -. IWASHITA: You’re talking about the SMA? TORIGOE: Yeah, the SMA. ALAMEDA: Yes, Commissioner Domingo. I know you’ve been holding the mike for a while. Go ahead. DOMINGO: Just a point of clarification, Mr. Chairman. It’s in regard to the vote that we’ve just taken where it was a split vote. Now what does Robert’s Rules play in this whole scenario? Because under Robert’s Rules if you don’t have the majority vote, then the motion is dead. ALAMEDA: That’s correct. TORIGOE: Basically, Robert’s Rules would come into play if your Planning Commission Rules don’t govern the matter. It seems to me the Planning Commission Rules allow for you, for instance, on the rezoning matter, that the rules seem to contemplate that you do EXHIBIT A 51 make an effort, you know, over the 90- or 60-day period to come to some kind of decision with five votes one way or another. DOMINGO: One way or the other? TORIGOE: Right. ALAMEDA: All right, taking up Mr. Yuen’s recommendation that we vote, Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. I move as to Item No. 2, revocation of Special Management Area Permit, SMA Use Permit No. 379, that we adopt the Director’s recommendation to revoke the Special Management Area Permit. And as to Agenda Item No. 3, requesting amendment to Condition 4, time to secure final subdivision approval, Special Management Area Use Permit No. 379, which allowed the development of a 50-lot Single Family Residential Subdivision, that that amendment be denied. SIRACUSA: Second. ALAMEDA: Okay. Motion made by Commissioner Iwashita, seconded by Commissioner Siracusa. Discussion? Commissioner Domingo. DOMINGO: I understand the basis for this motion, among others mentioned, but I think the primary basis is the nonsubmittal of a request for extension on both issues, and not density or other issues surrounding this development? ALAMEDA: Are you asking, who are you asking that question to? DOMINGO: Whoever can answer that. ALAMEDA: Any Commissioner care to entertain that question? Commissioner Iwashita? IWASHITA: If I may. I make the motion because, you know, as to an SMA Use Permit application, we are obligated as Planning Commissioners to address the criteria set out in Act 205 which specifically addresses adverse impact of any proposed development on the ocean. In this case, you know, this is the primary reason why we’re empowered to require SMA Use Permits in property located in the SMA area. So, to me, that further emphasizes my concerns about the environmental issues that have arisen in the past 10 years and that, you know, it’s not hard for us to look around to see the degradation of the environment; and the acceleration of the degradation of the environment is rather obvious to me if we continue down the path that we do. So that is a significant change in circumstances as far as I’m concerned and why I support the motion. ALAMEDA: Commissioner Siracusa? SIRACUSA: As the seconder, I would like to clarify why I seconded it. And it is partly what has to do with the 10-year failure to request a time extension and to comply with the EXHIBIT A 52 conditions. It has to do with the environmental impacts, with the changes that have happened, with the increased density of an area where there has been no concurrency, and all of those issues, really. It’s not just one issue. ALAMEDA: Thank you, Commissioner Siracusa. Mr. Domingo? DOMINGO: The SMA permit process we use to determine the impact, mostly the negative impact of the proposed development along the shoreline, and as Mr. Iwashita said the concerns of the water quality, and protecting the environment, the shoreline environment and preserving all that is there, I can accept that. But using that as an argument to deny the SMA Permit isn’t appropriate because if we go along this coast today and then, you know, bringing your attention to the reports by the Corps of Engineers with regards to quality control, it has impacted the waters and shorelines along the coast. Okay, if that is an argument why hasn’t the Commission or the administration taken any corrective action with that regard? Now applying that to, again, Alii Drive, the same comment by the Corps of Engineers with regards to the readings of the waters, you know, it is being impacted by the development along Alii Drive and above that; and we’re going to consider some applications in the future with regards to those developments. Now I see no recommendation of denial of those permits because of the degradation it has caused on the waters and the surrounding environment along Alii Drive. You know, I’m puzzled by this. IWASHITA: Mr. Chair, just one point? ALAMEDA: Okay, let me just, again, reiterate we may not convince each other but we have one chance. So, go ahead -. IWASHITA: I understand. ALAMEDA: Commissioner Iwashita. IWASHITA: I just wanted to point out one example to Commissioner Domingo. You know, the D-Bar Ranch application which we got reversed on befuddles me how the Court did that. But that was one case, that proposed development mauka of Alii Drive for what was it, 120 units or whatever it was, and this body, that was for an SMA Use Permit; and this body because of the environmental concerns and the cumulative effect of similar developments that we can expect in the future did deny that application. So that is just one example I wanted to raise that this body has acted on those concerns, and that by denying the request for extension in this case that we can be consistent. ALAMEDA: Commissioner Siracusa. SIRACUSA: Yes, just to follow-up with that, is that also certain Commissioners have voted consistently against increasing density in that area on the Kona side; and maybe they were not always on the winning side of the motion, you know, so you couldn’t say, oh, the Planning Commission unanimously. But there still has been a concern that has been voiced and voted on accordingly. EXHIBIT A 53 ALAMEDA: Thank you for keeping it brief. Commissioner Domingo. DOMINGO: I just wanted to mention, you know, speaking of consistency, this body also approved Sun Coast development, an adjacent development of the D-Bar Ranch application. And, you know, that’s why I said where’s the consistency in all of this by the Planning Department and by the Commission. ALAMEDA: All right, points well taken by all of you fellow Commissioners. Nonetheless, we still have to come down to a vote. I appreciate the discussion, that’s why we’re a 9-member body. Today we have 6 though so we’ll see how it goes. Seeing no further discussion or further points, the motion was made already by Commissioner Iwashita, seconded by Commissioner Siracusa. Staff? DARROW: Thank you, Mr. Chairman. The motion before us is for two agenda items. This would be Agenda Item 2(c) which is the Planning Director initiated revocation of Special Management Area Use Permit 379, that’s to approve the revocation; and also Agenda Item 3(b) which is a time extension request for Condition 4 of SMA 379 by the applicant Kohala LLC, and the motion is to deny the request. With that I’ll take the roll. Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Domingo? DOMINGO: No. DARROW: Commissioner Ogata? OGATA: No. DARROW: Commissioner Woodward? WOODWARD: No. DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion does not pass three to three. ALAMEDA: All right. Mr. Torigoe? Next step. TORIGOE: Well, as we discussed then the rule basically is within 30 calendar days after the conclusion of the hearing, which is today, or within a longer time as may be agreed to EXHIBIT A 54 by the applicant, then you must render a decision. If you fail to do so, then the request shall be considered denied. ALAMEDA: Okay, any questions for Mr. Torigoe on that? Mr. Lim? LIM:For purposes of the SMA proceedings, at least under my understanding of SMA Planning Commission Rule 9-11F. subsection 1., it’s that the Commission within thirty (30) calendar days after the conclusion of the hearing must render a decision. For purposes of the applicant’s request to extend the time for Condition 4 under Special Management Area Permit No. 379, we stipulate to a time extension for Commission action only up to and including the August 31, 2007 Planning Commission hearing. ALAMEDA: Mr. Yuen? YUEN: And I believe it would be in order for the Planning Director as the applicant for the revocation to also consent to extend time on the consideration of that up to and st including the August 31 meeting. ALAMEDA: Commissioner Iwashita. IWASHITA: So that applies to both to 2(c) and 3(b)? We’re continuing both of those to st August 31 meeting, is that correct? YUEN: Correct. ALAMEDA: Okay, go ahead. IWASHITA: Mr. Chair, then I move that Items 2(c) and 3(b) be scheduled for further consideration by the Commission at its August 31, 2007 meeting scheduled for West Hawaii and that those Commissioners not present for today’s proceeding be provided the transcript of the contested case hearing and the relevant exhibits for their consideration. ALAMEDA: All right. SIRACUSA: Second. ALAMEDA: Motion made by Commissioner Iwashita, seconded by Commissioner Siracusa. Discussion? Seeing none, staff. DARROW: Thank you, Mr. Chairman. The motion before us is to continue this matter st until the August 31 West Hawaii hearing. Is that correct? ALAMEDA: That’s correct. DARROW: With that I’ll take the roll. Commissioner Iwashita? IWASHITA: Yes. EXHIBIT A 55 DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion passes six to zero. ALAMEDA: Mr. Torigoe, are there any procedural matters that we missed? TORIGOE: Okay, one thing, if we are going to continue for another vote on the SMA matter, which is a contested case matter, the Circuit Court recently informed us that if there are going to be people at the second hearing who have not heard the evidence at the first hearing that there ought to be a form of a decision before the Commission and to allow for exceptions and argument unless the parties waive that. So I’d just like to ask the parties if they would like to have some form of a decision to put before the Commission or whether they would just want to go ahead with the record as it is. The Planning Director has a recommendation in there. One thing we could do is just allow for Mr. Lim to present an opposing proposal for decision, and then allow for the parties to either waive any further action until it gets here, back here, or to set a date to file any exceptions to the proposals for a decision and then come back and argue, or you can waive that as well. LIM:I would like to submit a proposed decision and order pursuant to Chapter 91 and we have the opportunity to respond to any of the Director’s opposition to that proposed Decision and Order. TORIGOE: Okay. Can we agree to perhaps a submission of the proposal for a st decision to be, what’s reasonable, within two weeks prior to the August 31 meeting? More than that? Or would you rather have it three weeks before and then you can maybe a week after that respond if you want? LIM:Perhaps we could make the applicant’s proposed decision and order, this is th on the SMA case only, correct, due by August 17 Friday. Is that pushing it too far back close to the hearing? EXHIBIT A 56 YUEN: The Director’s proposed action has been in front of the applicant, and I think the applicant has expressed their objections. If they are comfortable with an informal th decision that has been presented, I don’t then have a problem with the August 17 date for them to present a formal decision and order. LIM:We’re accepting his representation that the papers filed to date are his proposed decision and order, so we’ll frame our own. Would the Director then have a chance to rebut? Cause we’d like to have a chance to respond after that if that was the case. TORIGOE: Okay, so what we’re hearing now is basically that the Director’s recommendations will be used as the Director’s proposal for a decision, and that Mr. Lim will th file something by August 17, and that’s it for the record, that there will be no further written exceptions. ALAMEDA: Is that correct? YUEN: That’s fine. I think that what we should do is simply, you know, he has made his objections to the proposed decision and he can argue them again. I think we should open the hearing to the extent of allowing further argument on that if he wishes and we will st argue on August 31 against his, rather than requiring formal exceptions be submitted at some th time in the two weeks between August 17 and the hearing. I’m willing to agree to that if Mr. Lim is. LIM:That’s fine with us as long as we’re able to keep the hearing open to argue st on the August 31 hearing. TORIGOE: Okay, so you’re saying you want to have the option to file formal exceptions to each other’s forms? LIM:No, I’m okay with just filing one. YUEN: Yeah, we’re agreeing that we would not file exceptions, that he wants to th file a formal decision and order, that he will have a deadline of August 17. After that there will be no further written filing. The parties will simply argue their cases again in front of the st Commission on the 31. The Planning Department will, with the consent of the applicant, rest upon, as far as a formal decision, will simply rest upon what has been submitted; and if the Commission votes to revoke, that will be the decision that the Commission is voting to revoke, as stipulated by Mr. Lim. ALAMEDA: Fellow Commissioners, are there any objections to Mr. Yuen’s comments? st IWASHITA: Just a clarification, so then when we meet on the 31 then our choices will be either choose between the two or some, we can make some changes on one or the other? TORIGOE: Right. IWASHITA: That’s fine. EXHIBIT A 57 ALAMEDA: Okay. Seeing no further objections, that’s how we will proceed. LIM:Thank you very much. ALAMEDA: Thank you. The discussion ended at 2:31 p.m. Respectfully submitted, A T T E S T: Sharon M. Nomura, East Hawai‘i Secretary Noriko Sauer, West Hawai‘i Secretary EXHIBIT A 58