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HomeMy WebLinkAbout2008-01-03 tsoto PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT August 1, 2003 A regularly advertised public hearing on the application of ERIC SOTO(SMA 03-007) was called to order at 5:27 p.m. in the Ohana Keauhou Beach Reso 78-6740 Alii Drive, Keauhou, North Kona, Hawai`i, with Chairman presiding. PRESENT:Fred GaldonesABSENT & EXCUSED: Hannah Springer Earl Fujikawa Bill Graham Florence Kubota Jeffrey McCall Aurelio C. Mina, Jr. Francis Smith Hannah Springer Bill Thibadeau Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Staff Planner Daryn Arai, Staff Planner Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler representing Department of Public Works And approximately 13 people from the public in attendance APPLICANT: ERIC SOTO (SMA 03-007) Special Management Area Use Permit to allow the construction of a three and one-half story, 45-foot high, 12-unit multiple residential development an on approximately 15,203 square feet of land. The property is located on the west (makai) side of Alii Drive, adjacent to and north of the Sea Village Condominium complex, Kahului, North Kona, HawaiÒi, TMK: 7-5-19:30. GALDONES:The HawaiÒi County Planning Commission is back in order. Commissioners, we are on Agenda Item No. 3. WeÓre making progress. Application is Eric Soto, SMA 03-007. This is a Special Management Area Use Pe construction of a three and one-half story, 45-foot high, 12-unit multiple residential development and related improvements on approximately 15,203 squ Norman? 1 EXHIBIT A HAYASHI:Thank you, Mr. Chair. Members of the Commission, if I may direct your attention to the wall, the maps on the wall, the staffÓs location map. First of all, this is the Kailua Village Urban Area. Alii Drive is located in this general direction. This is going towards Keauhou, and this would be to Kailua-Kona. The subject property is situated in yellow. It is makai of Alii Drive and abutting the shoreline. For those of you who are familiar with StanÓs Fishery, that is located in this general location, which is at the intersection of Lunapule Street and Alii Drive. The adjacent property to the south of the subject property is where the Sea Village Condominium project is located; and adjacent and to the north of the property is the Sun Terra Resort Office Building. Also, adjacent and to the north of the property is a property which has a single-family dwelling on it. Again, if I may direct your attention to the site plan that was submitted by the Applicant, this would be Alii Drive. The Sun Terra Office Building would be here; and the Sea Village Condominium complex would be situated to the south. Thi and Alii Drive. And the Applicant is proposing to construct a 3-1/2- to 4-story structure consisting of 12 condominium units. ThereÓll be four units on each floor, so three floors of apartment or condominium units, with the lower floor being used for parking. ThereÓll also be a swimming pool, indicated here in blue, close to the shore, ocean, to the shoreline. These would be the elevations of the proposed building. Looking from makai to the ocean, this would be the view that you would see. From Alii Dri building would be, will look like; and this would be from the Kohala side elevation; and this would be from the KaÓu or south side elevation. We previously sent you the staffÓs Background Report and also a Recommendation. However, since then we have received a Petition for Intervention which was filed by the adjacent Sea Village Condominium Apartment Owners. and that was filed by the law firm of Tsukazaki Yeh & Moore. The Petition was filed in a time there are some discrepancies in the Petition itself in that the original Petition or document was not sent, the original signature was not on that document and, also, the document was not notarized as required. So, basically, thatÓs the status of that at this time. And perhaps, maybe, Corporation Counsel could expound on that as to the status of that Petition for Standing. GALDONES:Well, I will allow him to brief us as the appropriate time arises. At this time, are there any questions of Norman? If none, will the Applicant or his representative, please step forward? Mr. Mooers, you have already been sworn in. Have you received a copy of the Background Report and the Recommendat MOOERS:Yes, I have. GALDONES:Are there any comments or questions? 2 EXHIBIT A MOOERS:No. GALDONES:Commissioners, any questions of Mr. Mooers? If none, then, as indicated by Norman that there was a Petition for Standing in a Contested Case Hearing and you heard the comments made by Norman which may rule this Petition inappropriate and not for consideration. So weÓd like to have Mr. Torigoe explain to us what is required? TORIGOE:Thank you, Mr. Chairman. I refer to your Rule 4-7, Pre-Hearing Procedure in which it says, among other things, that besides the Planning Director, who is an automatic party, any other person seeking to intervene as a party shall file a written request in a form as provided in Appendix A and accompanied by a later than seven calendar days prior to the CommissionÓs first meeting on the matter. The Appendix A in your Rules has a space for PetitionerÓs signature and, also, for a notary acknowledgment to verify that the person, the identification of the person, and that he executed the Petition for Standing as his free act and deed. So from what staff has said, there may be some question with respect to the timeliness of the signature and the notary acknowledgment as the form seems to require. And, so, that raises some question about whether the Petition for Standing was properly filed. And I think you should hear from the attorneys for the Intervenors, the prospective Intervenors, and then get some reaction from the Applicant and, also, see if the Planning Department has any further advice on the matter. GALDONES:Commissioners, any questions of Mr. Torigoe? If not, the representative of the Intervenors, please step forward. Sir, could you raise your right hand. Do you swear or affirm to tell the truth on this subject matter now before the HawaiÒi County Planning Commission? MOORE:I do. GALDONES:Could you please state your name and your residence address? MOORE:My name is Michael Moore with the law firm of Tsukazaki Yeh & Moore and my residence is in Hilo, HawaiÒi. GALDONES:Mr. Moore, you have heard the discussion that is ongoing in regards to the appropriateness and the timeliness of the Petition. Do you have any comments, sir? MOORE:Yes, Mr. Chair, thank you. Just by an explanation, the reason that we didnÓt get the signature notarized in time when we filed the president of the organization is in Canada; and, in Canada, in order to get a notarization of a signature, you have to go to the local Consulate, the American Consulate, which was, I believe, in the next city where he was located. We do have an original notarized signed Petition which we have, we received by express mail on Monday morning, which we can file with the Planning Department at that time. I have discussed this matter with 3 EXHIBIT A Mr. Mooers and I understand that he understands that our organization has standing and would like an opportunity to meet with my client before I proceed with the full Contested Case. I will point out to the Commission that the Rule 4-1, it provide Contested Case may be modified or waived by stipulation of the parties. And itÓs my understanding that Mr. Mooers does not have any objection to this technical deficiency, which will be corrected in due course. It was, as I explained, it was an unavoidable situation. I would also note, just as a matter of general law, that the HawaiÒi Supreme Court has taken a very liberal view towards standing, and especially with respect to standing, with respect to environmental concerns and that the case law seems to indicate that technical, the technical requirements for standing should not be utilized to deny standing or -. There should be some reluctance to rely on technical flaws in order to deny standing to parties who are worthy of such standing. And I donÓt think thereÓs any dispute that on the facts being directly adjacent to this proposed development that my clientÓs interest is different from the general public in that, therefore, this anomaly, that standing would be granted. So, with that, I request the Commission to allow that we supplement our Petition with the original signature on Monday, we would have it filed at the Planning Department, and that we may proceed as an Intervenor. Thank you. GALDONES:Commissioners, any question of Mr. Moore? Commissioner Graham? GRAHAM:Just to ask Mr. Mooers to verify that, in fact, this is not, the deficiency in the Petition doesnÓt represent any substantial adversity to you. Is that correct? MOOERS:Yeah, I would like to comment. First of all, just in general and, obviously, IÓm not a big fan of Contested Cases because I think they tend to take up a lot of time and IÓm not quite sure that theyÓre used for anything much more than opposition to a project, and maybe not, or contest a particular evidence that may be introduced. At the same time, IÓm not an attorney, but I do understand that the courts have ruled that they should take a very liberal view of standing. I would like to make just one request on this Contested Case, and any others in which an organization or group asks for standing, and that is that some evidence be introduced either at the time of the application or at the time of the first hearing that would show that the body that is applying for the Contested Case has, in fact, that the person signing has the authority to represent the group, and that thereÓs minutes of a meeting held that shows that a decision was made by the group prior to the date of filing and then, in fact, that the person who signed was authorized to take that action. And that is not to oppose this man in general, but I just think itÓs, as a general statement of groups requesting Contested Cases, that this would be a good idea. 4 EXHIBIT A I recall about eight years ago, there was a Contested Case, IÓm sorry, it was more like eleven years ago, there was a Contested Case in which eight people asked for standing. And the Chairman of the Commission at that time, Mr. Mike Luce, made the request that these groups go back and come back with minutes of meetings in which they were authorized to take the action; and none of the eight were able to produce those minutes. And IÓm not implying that thatÓs the case here; but I just think, in general, I would make that statement. IÓm disappointed that we did not hear from the association during the period of time, in the seven or eight weeks theyÓve had, since we first noticed them to meet with us and talk about concerns. But at the same time I do want to take that opportunity to meet with the association and address any concerns. To that end, I would say that if you grant them standing in a Contested Case, that we defer the meeting, the first scheduled meeting of the Contested Case to allow us an opportunity to address their concerns. Secondly, if you deny them standing, then I would ask for a defe again, allow me the opportunity to meet with them and, in fairness, address the concerns that they may have. So IÓm not looking for a technical solution to, you know, let it slide through with a permit if there are legitimate concerns. I think we need to sit and meet with this group, whether itÓd be in a Contested Case or not. Obviously, I prefer not to be a Contested Case because, as you know, when a Contested Case sta this other tall haole usually shows up. GALDONES:Commissioners, any further questions? Mr. Mooers, in light of your request that thereÓs a possibility that we can defer if we allow for Standing, defer the first meeting until you have the opportunity to meet with the association, would you be objectionable if we defer taking any action on the Petition at this moment in time? I guess maybe I also have to address this to Moore to give you folks the, the parties the opportunity to meet and see if you folks are able to work out anything. And then, if not, then address it at the next Commission meeting when itÓs agendized, to determine whether there is a Petition for Standing. MOOERS:Yeah, I donÓt have a problem with that provided it could be at the next hearing, because I donÓt want to delay this indefinitely. For example, if we meet and we arenÓt able to come to a resolution, then the next meeting I have to advise my client that they need to be represented by counsel, and then they will have to make the arguments related to the Petition and other things. I do not want to carry on representing my client indefinitely if the Contested Case is pending. So if you donÓt make the decision on the Contested Case today, whether Standing will be granted or not, I will probably defer to counsel for the next meeting. That doesnÓt mean I donÓt want to meet with the association because I do. But I donÓt think itÓs fair for my client to extend indefinitely when this decision or determination of a Contested Case will be made. So if you can schedule for the next hearing, then I think itÓs up to Mr. Moore. I mean, I stand ready and the architect is ready to meet with any opportunity with the association. So if we can be guaranteed that we will be on the next meeting, that would be terrific. 5 EXHIBIT A GALDONES:Mr. Moore, will the arrangements be acceptable to you? MOORE:WeÓd be happy to meet with Mr. Mooers and his client, the association. That is our recommendation to our client, so weÓll be happy to do that and -. GALDONES:Norman, can then we have that agendized on the next meeting in Kona? th HAYASHI:Yes, we can do that for the September 11 meeting. GALDONES:Okay. Mr. Torigoe? TORIGOE:Okay, so to clarify for the record then, if the parties are agreeable to continuing the matter of the Petition for Standing until the next meeting in Kona and, in the meantime, the parties will try to meet to see if there th resolved. MOOERS:ThatÓs true, yes. We can do that. MOORE:We can do that, thatÓs correct. TORIGOE:Okay, very good. GALDONES:Mr. Moore? MOORE: Actually, yes, excuse me. Well, so the deferral is also Petition for Standing so thereÓs no decision being made on that today? GALDONES:Correct. MOORE:Okay, thank you. GALDONES:Commissioners, then Agenda No. 3, Applicant Eric Soto (SMA 03-007), will be continued The discussion ended at 5:45 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 6 EXHIBIT A