HomeMy WebLinkAbout2010-08-12 THU HONUA
WINDWARD PLANNING COMMISSION
COUNTY OF HAWAI‘I
HEARING TRANSCRIPT
AUGUST 12, 2010
iscussion and action on a petition for Standing in a Contested Case Hearing from Claudia
A d
Rohr regarding the application of HU HONUA BIOENERGY LLC (SMA 221)
was called to
order at 10:34 a.m. in the County of Hawai‘i, Aupuni Center Conference Room, 101 Pauahi
Street, Hilo, Hawai‘i, with Chairman Rell Woodward presiding.
COMMISSIONERS PRESENT: Rell Woodward, Dean Au, Takashi Domingo, Zendo Kern,
and Stephen Ono.
STAFF PRESENT: Brandon Gonzalez (Deputy Corporation Counsel), Warren Lee (Director
of Public Works), BJ Leithead Todd (Planning Director), Daryn Arai (Planning Program
Manager), Jeff Darrow (Staff Planner) and Maija Cottle (Staff Planner).
There were 10 people from the public in attendance.
ABSENT AND EXCUSED: Wallace Ishibashi.
APPLICANT: HU HONUA BIOENERGY LLC (SMA 221)
Discussion and action on a petition for Standing in a Contested Case Hearing from Claudia
Rohr, received by the Planning Department on July 13, 2010, on the matter relating to the
Amendment to Special Management Area Use Permit No. 221, Applicant: Hu Honua
Bioenergy LLC, which originally allowed the establishment of a coal storage area and a coal
burning energy plant and related improvements. The amendment request is to allow a change
in fuel source from coal to biomass, to upgrade the existing facility and to construct support
facilities and infrastructure at sgd enqldq Ododkdjdn Onvdq Ok`ms+ L`j`g`m`kn`+ Rntsg Ghkn+
G`v`hkh+ SLJ9 1,7,790/3 'enqldqly 2-8-7: Portion of 53).
WOODWARD: The next and final item on the agenda today is the, it was added, amendment to
iscussion and action on a petition for Standing in a Contested
the agenda. Item No. 7, it’s a d
Case Hearing from Claudia Rohr, in the case of the Applicant: Hu Honua Bioenergy LLC.
And our Corporation Counsel Brandon Gonzales is going to give us kind of the ground rules as
e`q `r vg`s vdlqd cd`khmg with here. Brandon.
GONZALEZ: Thank you, Mr. Chair. This matter is agendized today for the sole purpose of
determining whether to accept a petition for standing from Claudia Rohr that was received by
the Planning Department on July 13, 2010. The Planning Commission is not making any
decision or determination regarding the application to amend Special Management Area Use
Permit No. 221 today. Discussion and public testimony today for Item No. 7 is to focus solely
on the petition for standing. In the last few days the Planning Department has received
numerous submissions regarding SMA Use Permit No. 221 from the petitioner. Those
1
EXHIBITC
submissions will be made part of sgd Ok`mmhmf Cdo`qsldmslr file and will be made a part of the
record for SMA 221, and may be addressed in the future when the Planning Commission is
discussing and deciding whether to grant or deny the amendment to SMA 221. The Planning
Commission acknowledges it has received a letter dated August 5, 2010 from the Applicant,
Hu Honua, objecting to the petition for standing; and the objections that are contained within
the letter are made a part of the record to this proceeding. Thank you, Mr. Chair.
WOODWARD: All right. Thank you, Mr. Gonzalez. As of this point we have nobody
signed up from the public to testify. Is that right, Sharon?
NOMURA: Yes.
PUBLIC: I would -.
NOMURA: Oh, we do. Please sign up.
GONZALEZ: And I forgot to mention, as the Chair announced at the beginning of the
meeting today public testimony is limited to three minutes. And, again, for Item No.7,
testimony is focused solely on the petition for standing. Thank you.
WOODWARD: Okay, all right. If you ladies will have a seat here, amc vdlkk rvd`q xnt hm
and get your testimony. You can have a seat right there. Okay, first I need to swear you in.
He xntlkk q`hrd xntq qhfgs g`mc- Cn you swear or affirm to tell the truth today before the
Windward Planning Commission?
RAPOZA: I do.
MUNRO: I do.
VNNCV@QC9 Udqx fnnc- He xntlkk fhud tr xntq name and address, and then you may begin
your testimony. And, again, the only item being decided here is the granting of the application
for a petition for standing, not the actt`k `ookhb`mslr `ookhb`shnm- Sg`slr ` rdo`q`sd hrrtd- Rn he
you have things to tell us `ants sgd odshshnm enq rs`mchmf+ sg`slr vg`s vdlqd qd`kkx enbtrdc nm-
So who would like to begin? Okay, name and address and then you may begin.
MUNRO: Elaine Munro. Do you want my physical address or my mailing address?
WOODWARD: Either one.
DARROW: If you can speak into the mike. Thank you.
LTMQN9 ON Anw 88/+ Ododkdjdn+ G`v`hkh 85672- H vntkc khje to recommend that Claudia
Rohr become an intervenor in this case. I am an intervenor as well. I have limited funds and
Hll qdoqdrdmshmf lxrdke hm sgd bnmsdrsdc gd`qhmg. If you grant Claudia Rohr standing as well,
2
EXHIBITC
she and I will likely consolidate our issues under one name. So
and hopefully some County money in processing it. The substance of granting her standing is
a series of points which she is best able to represent herself. Primarily it gets down to the nitty
gritty of timing not being met, errors being made, and the processing of the application, the
application being incomplete. And those issues alone indicate that the time period for granting
standing is not really what has been officially determined but actually is subject to question. I
understand that the counsel has presented argument for why she should not be granted
standing. However, their comments were based on not knowing anything about why she was
wanting to be granted standing. So I would recommend that before you make a decision on the
matter that you hear and understand the issues that she is bringing to the table regarding the
substance of being granted standing. Thank you.
WOODWARD: Thank you. Do we have any questions? No, seeing mnmd+ nj`x- L`l`l+
you may give us your name and address and then you may begin.
RAPOZA: Thank you. My name is Bridget Rapoza. Address is Box 30, Ododkdjdn+ 85672-
WOODWARD: Okay, very good.
RAPOZA: I will qualify my statements with the fact that I just met Claudia Rohr. I do not
know her but I have seen some of the work that she has done. My understanding is that you
all know her very well. And the fact that you know her, and from what I have seen of her
work, indicates to me that she cares very, very much about protecting the interests of the
public as well as the environment in that area. She is intimately familiar with it. I will
acknowledge that some of the things that I have seen seem smaller or less relevant, perhaps. I
would submit to you that she is perhaps like a great photographer. She takes 100 to 200 shots
to get the great one photo. And I think that her efforts and time will contribute to the purpose
of this whole process in protecting the public interest.
WOODWARD: Thank you.
RAPOZA: Could I say one more point?
WOODWARD: Sure.
Q@ONY@9 @mc sg`s hr sg`s H g`udmls qd`c any of the motions by Hu Gnmt`lr bntmrdk- I
understand and respect that Gt Gnmt`lr cdrhqd hr sn g`ud finality and get this through as
quickly as possible. I would also ask you as the Planning Commission to keep in mind that
this is not your typical development project or application. This is a public utility and it will
impact everyone. It will impact all of the people who pay electricity rates on this island. It
will impact everyone who is affected or breath in the air on this hrk`mc- @mc rn hslr mns itrs hs
should not be limited to the people in the immediate location of that project but should be open
to all of the people of the public who have something genuine to say, have something
significant to contribute. Thank you.
3
EXHIBITC
WOODWARD: All right, thank you. Do we have any questions? Okay, seeing none, you
k`chdr l`x ad rd`sdc- Sg`mj xnt- Nj`x+ Lr- Qngq+ he xntlll come up and have a seat. Okay,
Lr- Qngq+ xntlud addm `kqd`cx rvnqm hm- @mc vd have your application, we have the letter
from the applicant objecting to granting you status. Is there anything that you would like to
add to your application?
ROHR: Yes. I submitted some information todax+ ats Hlc khjd sn rs`sd sg`s H chc ldmshnm `s
the first hearing that I believed an EA had been triggered or that we thought that everyone
assumed that an EA would occur. And I apologize for being three months late. But for the
r`ld qd`rnm sg`s xnt o`rrdc sgd k`rs `fdmc` hsdl Hll fnhmf sn say that is exactly why I was
sgqdd lnmsgr k`sd- H chcmls v`ms sn ad adbnme an intervenor under a quick review of the
recommendations on the draft permit. The public only had seven days to review the draft
permit and the recommendations of the Planning Department before they had to make a
decision to become an intervenor. I needed to satisfy my own belief that there was evidence
that something, I knew something was wrong but I needed to find the evidence to be able to
explain it.
Rn Hlc khjd sn rs`qs vhsg+ H enqfns sn ots nm lx list the second item should be HRS 343 and the
requirement in your rules is, first of all the requirement in your rules is that the Planning
Department is not supposed to schedule a hearing until they get a complete application. Your
Rule 9-11(a) states that if there is to be an EA procedure it needs to be completed before the
application is considered complete. I finally found after three months why the Planning
Cdo`qsldmslr cdbhrhnm sn ots hs nm the Health Department to determine if an EA is triggered is
incorrect.
Nm Gt Gnmtlr LOCR odqlhs vghbg sgdx rtalhssdc as part of their application, the standard
conditions, Item 2, states this permit does not ausgnqhyd bnmrsqtbshnm- Sg`s ld`mr sg`s sgdxlqd
required to come to the County to build, rebuild a wooden flume sg`slr mnv bnkk`ordc `s sgd
Pali. The first item behind my first page, the first page is an outline. The second item is a
letter to Sam Lemo of the OCCL (Office of Conservation and Coast Lands) because they will
need to, Hu Honua will need to get a CDUA for discharge structures along the shoreline. And
Warren Lee, County of G`v`hkh Otakhb Vnqjr `mc Anaby Jean Leithead Todd -. I can
tmcdqrs`mc vgx sgdqdlr bnmeusion. But this is exactly why there has been pollution for years,
because there is confusion. So Hll cdsdqlhmdc sg`s sgdqd vnmls be confusion, that there is a
need, and they cannot switch on that plant until they rebuild the flume or a similar functional
rsqtbstqd- Rn he xntlkk knnj `s xntq ohbstqd+ gdqdlr what it looked like in a Department of
Gd`ksg ognsn hm 1//4: `mc mnv hslr in ruins at the pali. So they cannot turn on their switch.
That triggers an EA because it takes a shoreline variance. I understamc sgd bnmetrhnm+ hslr `
difficult -. It took me three months to ehmc sgd `mrvdqr rn Hll mns bqhshbhyhmf-
The next thing is the plot plan. It states that all existing and proposed structures will be put on
that plan and that it will be to scale, it will ad cq`vm sn rb`kd- Sgdxlqd oqnuhcdc xnt vhsg `
general layout, meaning not to scale, not surveydc- Sgdx chcmls ots `kk sgd dwhrshmf rsqtbstqdr
4
EXHIBITC
on. They purposely did not label the structures that were along the shoreline setback area that
sgdxlqd trhmf+ sg`s sgdx vhkk ad constructing new pollution entrapment structures as part of their
NPDES permit. Each time somebody uses a new etdk+ xntlkk g`ud ` mdv onkkts`ms- Sghr shld
hslr vnncbghor- Sgdxlqd fnhmf sn g`ud `rg ats sgdxlqd fnhmf sn have woodchips also. That
qdpthqdr sghmjhmf+ `mc sgdxlqd fnhmf to have logs rolling around. I have photos of logs on the
edge of the pali already.
The shoreline survey, because they did not admit they were doing construction in the shoreline
setback and that they needed to recon -, or to construct a new device where the old wooden
flume is, they misled the Planning Department on the shoreline survey issue. What the plot
plan complaint or letter that I wrote, which is the second item attached, I attached a map that
@B+ hr hs @BHR+ kdslr rdd+ @BRH+ oqnuhcdc oqdo+ H b`mls qdmember their acronym, what it
means any more, but they were the ones who owned the rights to turn on the switch before Hu
Honua. On that application it has the top of pali. I made a list of all the things that are not on
the plot plan, but definitely a requirement is to put all the boundaries on, and the top of pali is
the boundary towards the makai side. This map shows that not only is their map different and
has less labels but the top of pali is really the hrrtd- Sgdx chcmls ots nm sgd rgnqdkhmd rdsa`bj
line.
Sgdx chcmls ots nm sgd Rs`sd K`mc Trd Antmc`qx Khmd vghbg vgdm sgdx cn ,- Adb`trd sgdqdlr
an aerial photograph, a 1990 boundary interpretation from the LU
the makai side, leaving portions of the settlement pond in the Agricultural district. The PREP
v`rmls `akd sn fds sgdhq rnkhc waste permit because they could not get a P-5 Form, which is the
pre-requisite for applying for a solid waste permit - because we told, because of years of
following up on this particular plant and showing that they were not complying with land use
k`vr- Hm nsgdq vnqcr sgdxlqd cnhmf Hmctrsqh`l activity on Agricultural land, which is not
authorized by 205-4 or the Zoning Code.
WOODWARD: Let me just interrupt you for a sebnmc- Vg`s vdlqd gdqd for really is to
decide upon granting you status, not specifics -.
ROHR: The timing issue?
WOODWARD: Not specifics of the application itself.
QNGQ9 Sghr hrmls sgd rodbhehbr- Hslr `ants shlhmf- Sgd `pplication must, I put on here each
of your rules regarding application, the applicant shall submit the following to the Director, a
plot plan of the property drawn to scale with all existing and proposed structures, and other
information necessary, to make a proper determination of the impacts relative to the specific
request. In here you have a letter that is just about that issud- Hslr Mn- 1+ `ss`bgldms- @mc H
wrote it out. I was in conversation with Daryn Arai from before the hearing, first hearing.
But, anyway, I had written it all out why that, vgx sgdx chcmls ldds sg`s qdpthqdldms-
The application itself indicates wh`slr dwodbsdc sn ad nm sg`s plan, and it includes boundaries.
5
EXHIBITC
You have to put all the boundaries of the property. Top of pali is the seaward boundary of that
particular parcel, that in East G`v`hkh sg`s hr sgd rgnqdkhmd- I am on the board of Public Access
Rgnqdkhmd G`v`hkh 'O@RG( `mc vd cd`k vhsg rgnqdkhmd hrrtdr: `mc Hlud qdrd`qbgdc hs `mc Hlud
heard Bobby Jean say that in Windward, or maybe it was Christopher Yuen, in Windward
G`v`hkh sgd sno ne o`kh hr sgd rgnqeline. So what the surveyors do is they go over the, I used to
sell real estate, what they do is they go over the pali as far as they can and they take points;
and then they say from this point to this point along the top of the pali shoreline; and they
cnmls `bst`kkx l`o d`bg o`qs nts- Ats adb`trd I could find a map that shows that the pali
undermines structures on the property, because I was able to photograph the wooden flume
existing in 2005 and in a pile of ruins at the bottom of the pali in 2010 -.
The Planning Department prematurely scheduled the hearing. It v`r adb`trd+ hs v`rmls dudm
th
reasonable. They sent out requests for comments. They wrote the letter on the 11 of March.
th
People received it on the 15 of March. They asked for comments to be received back by the
thth
8 ne @oqhk- Sg`s v`rmls dudm 2/ c`xr- @mc ax+ nm sgd 04 maybe it would have been about
th
30 days. But they actually submitted their ad or their advertisement of the hearing on the 15
th
to the paper and it was published on the 17 ne @oqhk- Rn hs cndrmls dudm rddl rhmbdqd-
I know what they were battling though. Therdlr ` 34,c`x shld khlhs nm sgd `ldmcldms sn `m
SMA and I have written something about that too, which is attached as the third item on here.
Hslr a`rhb`kkx rs`shmf `kl the facts that the Planning Department determined back in 2003 that
they had violated not only the NPDS Permit, and the EPA came in and did a notice of
violation/order to comply showing five years worth of violations. And the Planning
Department in letters acknowledged, and that they determined that they were in vio -,
substantial violations. That means the permit was invalid by its own Condition 8 of the 1985
version of 221. It states that he sgdx cnmls bnlokx vhsg sgd bnmchshnmr sg`s hslr unhc- Sgd 1/4@
states that you can amend an SMA Permit, a valid SMA Permit. It does not authorize you to
amend a voided permit.
DOMINGO: Mr. Chairman?
WOODWARD: Yes.
DOMINGO: Point of order.
WOODWARD: Yes.
DOMINGO: There are some facts that have been given with regards to timing and the lack of,
nq sgdxlqd mns ,-
ROHR: Just say -.
DOMINGO: The timing and lack of certain documents and everything. Now if we, if we give
her standing in this particular case, would we not be in essembd bnmehqlhmf sg`s vg`s rgdlr
6
EXHIBITC
saying that the Planning Department did not do this or that, or the State did not comply, or
anything, would we not ad bnmehqlhmf sg`s vg`s rgdlr r`xhmf gdqd hr hm e`bs true? Or, because,
xnt jmnv+ Hll itrs+ Hll mns as smart as that -.
VNNCV@QC9 Vdkk+ H cnmls jmnv sg`s+ H cnmls jmnv that necessarily but I do think we need
to get this focused. And the -.
CNLHMFN9 Sg`slr vgx Hll `rjhmf sg`s ptdrshnm-
WOODWARD: Right. Well, there are two things, and we need to discuss this with
Ms. Rohr. One is whether it was done in a timely fashion, and that is in relation to the first
meeting we had, not -. It doesnls g`ud `mxsghmf sn cn vhsg vgdsher there were mistakes made
`knmf sgd v`x- Hslr vgdm ntq ehqrs lddshmf v`s scheduled. And the second thing is whether
you have an interest that is clearly distinguishable from the general public. Did you receive
the letter from Hu Honua, their objections?
QNGQ9 Mn+ ats Hlud qd`c hs-
VNNCV@QC9 Xntlud qd`c hs-
GONZALEZ: You did receive it? V`hs+ kdslr bk`qhex sg`s-
QNGQ9 Ats+ `f`hm+ Hll mns cnmd vhsg sgd shlhng issue because the timing issue is the issue.
VNNCV@QC9 Vdkk+ he xntlc `mrvdq sg`s ptdrshnm+ adb`trd H cnmls sghmj vdlqd fnhmf sn ad
able to -. The questions you have about whether things were done and timing, and so on and
so forth, is really, that may be brought up in another forum. Bus hslr mns o`qshbtk`qkx fdql`md
to the question we have today.
ROHR: You must give full consideration to all your rules. Your rule states that that hearing
could not be scheduled unless the Items in 9-11(a) `mc 'a( vdqd lds- @mc Hll mns cnmd vhsg
lx shlhmf sghmf rn Hlc khjd sn bnlokdsd hs `r e`st as possible. And ynt cnmls g`ud sn l`jd `
decision today. Or we can go into closed session, we can agree to come to a mediated decision
to go forward with certain things, and all try to avoid a law caa court case. So let
me just finish my arguments for the record.
VNNCV@QC9 @kk qhfgs+ he xntlkk ehmhrg `r pthbjkx `r xnt b`m+ `mc Hlud fns ` edv ptdrshnmr
to ask you -.
QNGQ9 Sg`slr ehmd-
VNNCV@QC9 @mc sgdm vdlkk l`jd ` cdbhrhnm-
QNGQ9 Sg`slr ehmd- Hll fnhmf sn `mrvdq xntq ptdrshnm rhmbd gd vntkcmls- H adkhdud+ dwbtrd
7
EXHIBITC
me, sir?
DOMINGO: Yes.
QNGQ9 Hll rnqqx ,-
DOMINGO: Yes.
QNGQ9 Lq- Cnlhmfn+ xntlqd `kk ` mdv Bnllhrrhnm+ Ok`mmhmf Bnllhrrhnm+ rhmbd Hlud addm
hmunkudc vhsg gd`qhmfr+ rn Hll rnqqx- Hlc khjd sn `mrvdq lx udqrion, my version of an answer
to your question. We can all ddbhcd sg`s xntlqd mns cdbhchmf sg`s+ sg`s xntlqd cdbhchmf sn fn
forward. And if Hu honua wants -. I think the rule states that you can let it be litigated to
settle the issue. But I would like to just come to terms with Hu Honua and get to the bottom of
sghr rn sg`s vd cnmls v`rsd dudqxnmdlr shld- Rn Hll sqxhmf sn sdkk sgdl vg`s sgdx chc vqnmf-
So please bear with me.
Your Rule 9-11(g) states only the applicant can apply to the Com
And your Rule 2-1 defines an applicant as somebody who applies for a permit. Hu Honua is
not the applicant. Hilo Coast Processing Company applied for the permit 25 years ago. Your
rule state, 9-11(b), the applicant shall submhs sgd enkknvhmf sn sgd Chqdbsnq9o-
Oh, first of all, your rules also state in the matter of the applicant, in the meaning of the
applicant, no-where does it state landowner, assignees, successor means applicant, no-where.
And your rules require you to use plain language. The common understood usage of words
like applicant, a person who applier- Hslr `m `artqc+ hslr `m `artqc bnmbktsion to think that a
new person with land rights or some kind of rights who uses a property 25 years after the fact
can amend a permit for another applicant who is now nonexistent, and especially one of this
magnitude and where the landowner has sold 1,000 acres and it has been subdivided into lots
and people have bought tgnrd `mc sgdxlqd khuhmf sgdqd mnv- @nd now you want to turn back on
the power plant?
Things have changed. And there are two soil excavation businesses, there are people living
ax+ sgdqd `qd lnmj rd`kr rvhllhmf ax- Sgdqdlr mnv ` rstcx sg`s r
sg`slr sgdhq l`hm eddchmf fqntnd. And that area, of all the major Hawaiian islands the
Hmkua coast is the major feeding grounds for the Hawksbill turtles that occupy the main
Hawaiian Islands. There are things th`s g`ud bg`mfdc: `mc rn hslr mns itrs+ ng+ kdslr kdt it slide.
Sgd Ghrsnqhb Oqdrdqu`shnm Oqnbdctqdr+ Hll fk`c what I did because I stopped them from
destroying historic properties without surveying them first. I was appalled when I realized that
what the historic, what do they call it, an archaeologic, some kind of review of literature.
When I read that it was so wrong, I immediately wrote to the Preservation, the State Historic
Preservation Division. And I got to the bottom of it. What happened v`r Gt Gnmt`lr OBRH+
their archaeologist sent in a draft review of literature in January, `mc hs r`hc nCq`es-o @mc sgdx
chcmls o`x ` edd- @mc sgd knb`k agent called them up and said, well+ sghr hrmls xds dmntfg+ sgdqd
8
EXHIBITC
are inconsistencies and there ard sghmfr vqnmf gdqd+ xntlqd fnhmf to need to do more work.
Then the Planning Department rdmcr hm rnldsghmf b`kkdc ` nEhm`k Khsdq`stqd Qduhdvo `mc
sgdqdlr ` bnudq kdssdq eqnl Gt Gnmt`lr rs`shmf hs hr sgd Ehm`k @qchaeological Review. And they
th
send it to the State Historical Preservation Division on the 11 of March. They received it on
th
the 15. By their rules they have 45 days to decide he hslr `cdpt`sd nq he hslr mns bnlokdsd-
Within that 45-day period they wrote to the Planning Department amc rs`sdc hs v`rmls fnnc
enough. And, in fact, now PCSI has gone back to the property and has discovered historic
properties; and some of us have been writing in and pointing nts sg`s sgd nkc 078/lr lhkk hr rshkk
there, and all these other structures are still sgdqd `mc sgdxlqd mnv rtqudxhmf sgd oqnodqsx `mc
they have not completed Item @ ne xntq Qtkd 8,00'a(+ nS
he applicant shall submit the
following to the Director:… (5) Archaeological Resources (one of the following):… An
archaeological inventory report containing significance assessments.” Significance assessments,
they’re not there yet. They just found the property. They haven’t quite surveyed them, they
haven’t made that decision. They have to write a report that determines whether these are now
significant or not, and what the effect of this project is on them.
And the proposed mitigation commitments, all of that had to be done before the application was
complete. They tried to get a “no effect” letter, they didn’t get it. They were told they didn’t
have enough information about the property. They tried to somehow trick them with Item C
with this 30-day thing, but that didn’t work because they responded and said it wasn’t good
enough.
Your rule states something that is in parallel with the State Historic Preservation Administrative
Rules on page 11 of -. Their Administrative Rules are under the DLNR and it’s 13-284. On
page 11 of that Administrative Rule it says that they have 45 days. In the beginning of that rule
it states that the agency has the responsibility of determining if there are or not historic
properties. They’re supposed to confer with the State Historic Preservation Division. They’re
going to, I guess the State Historic Preservation Division is going to have a meeting with the
Planning Department because they don’t understand the rules. They’re supposed to pick up the
phone, they’re supposed to write a letter and say in the very beginning of getting an application,
and write a letter saying we’re going to be reviewing this, you know, let’s get together and
decide if there are historic properties or not, let’s agree whether there are or not, whether we
have the facts, what’s required to determine if there are or aren’t. You don’t know. Hu Honua
may have already destroyed historic properties in this cleanup campaign that they had.
Somewhere between 1993 and 2002 or 2009 most of the historic properties were destroyed, but
luckily some of them are there.
WOODWARD: Okay, Ms. Rohr -.
ROHR: Okay. That’s my timing thing.
WOODWARD: That’s it.
ROHR: So now you can ask me questions.
WOODWARD: Okay. So you have read a copy of the objections from Hu Honua?
9
EXHIBITC
ROHR: Yes. I will tell you the answer to those objections. They’re saying that because I have a
B&B in Hilo that somehow this doesn’t affect me. It affects me very much. When Aloha
Airlines went out of business our business dropped by 40 percent, and then it picked up again
another 20. I know day to day why people come to Hilo, because I sit at the breakfast table for
an hour and a half and talk to them. We’re lucky if people come to Hilo. They get really good
deals over on the Kona side and everyone says, oh, the weather is great, the white sand beaches.
People want an experience about history and beauty. And they are, they’re on the DBED
Website. They have a special page about the Hilo-Hmkua Heritage Corridor, which goes from
Hilo to Waipi‘o. It’s the old scenic train route. The original train company went bankrupt over
building that route. In the 20’s it was the rage. People would get on that train, they’d stop it on
the tressels, on the bridges, and let them take photos. It’s still beautiful. And the description that
they used in the 1920’s still applies and still draws people to drive around the island. If it wasn’t
for the beauty of the Hmkua Coast, people might just go to Volcano and skip Hilo. All of the
businesses here in town are dependent upon the beauty of the Hmkua Coast and the
unobstructive views to and towards the shoreline area. The DBED determined that $380,000,000
worth of income was created off of heritage-related businesses and that that could increase three
times. That’s for the whole island, so let’s just say Hilo is a third of that. A $100,000,000, all
the people who take, -. You know, I’m surprised they’re not here. But they never, they’re too
busy. We all work seven days a week. So I believe that -.
WOODWARD: Okay, let me just try and answer the question a little bit. There were three
points that were made in the objection Hu Honua sent to you. One was that you were not timely;
and you’ve addressed your concerns about the process. But, in fact, timely is defined as when
we held our first meeting. That is what the definition is. The second point they made is that
your status is no greater, no different than the general public. And you’re saying that anybody
who lives in Hilo because it’s close enough that that’s not the case. Is that -?
ROHR: It has nothing to do with distance. Okay, it has nothing to do with distance at all. I fell
in love with that property first. It was a diamond in the rough and I used to go for drives on
Sundays; and that’s how I know that property. I was the one who loved it first. And I’m the one
who keeps going back to take a walk and finding gates closed; and, you know, I have problems
with accessing it now. I became a member of PASH, and Elaine became a member of PASH,
you know, because of all these access issues at Pepe‘ekeo. And I was nominated on the Board
by Jerry Rothstein. And he used to come to these hearings with me before he was killed. But it
has nothing to do with distance. If you go talk to -. Okay, my old real estate clients, one of them
works at the Harbor. The Harbor Master is a historian and his expertise is in the Hawaiian,
Hawai‘i Consolidated Railroad. Go talk to him. And she works in his office. She said to me,
“Claudia, we went for a Sunday drive and the gate, there’s a gate now, we can’t drive to the old
light house.” And I said, “Yeah, you can’t.” But you know what? People still try. And they
park and they go to the point, and they enjoy it. It’s called a Sunday Drive. That’s where I go
for my Sunday Drive. Anyway -.
WOODWARD: All right. Let me, let me go to the third issue and then -.
10
EXHIBITC
ROHR: And I hike along the trails and I have fished. And I meant to bring a picture of me at
age 7 in San Diego holding a big fish so you’d believe me, but I didn’t.
WOODWARD: Okay. Let me go to the third point. And the third point is that the contested
case hearing has already begun, the contested case procedure has already begun, and that it
would be prejudicial against Hu Honua if anybody else were admitted at this point, regardless of
the merits of the first two, although they question the first two points. So do you have anything
else to say before I let them get up and give us their opinion?
ROHR: Yes. I think my, I think that my interest that I, due process, this is about due process,
Article 1, Section 5 of the Hawai‘i Constitution. That means is there substantial damage if you
don’t let me intervene. Well, my business, I could lose my business. I could lose my house. I
could lose my retirement. Would that be justice? What are they going to use? Do they have an
option to purchase? How much money have they put out? How much money are they -? Think
of the people, the $100,000,000 that are being created from the heritage-related businesses. It’s
not just me, but I’m worried about me. I’m sorry. This is selfish. I know, it is so hard now to
get B&B business. Everyone has doubled their advertising. We’re spending way too much just
to get people in. We’ve all lowered our fees.
One more thing, and the whole town is going to go back to the way it was in 1995 or 1993, with
all the trucks going up Hmkua and nobody wanting to drive around the island because you’re
going to get behind one of those trucks. If the word gets out that there’s 100 trucks, you know,
going in and out every day from along the coast, that they have to battle logging trucks along that
coast, people just will drop you with just one little thing wrong. All you have to do is get that
rumor out there, and it will go out there. It’s like reverting back to the cane days.
They’re not just saying that they’re amending an SMA Permit. They’re proposing a whole new
industry for West Hawai‘i. And is it, and my personal life is going to be destroyed by it.I’m
sorry. I have a B &B business, people stay at my place for two or three days, they drive around
the island from the Kona side and they usually -. You know, part of what I have to offer is, oh,
we’re only 40 minutes from Waipi‘o Valley and, oh, the Botanical Garden.
Their truck, they have not agreed to put in a left-hand turn lane and a deceleration lane in that
Highway. They’re competing with the entry onto the scenic route which happens to be the
Alaloa Trail. The Alanui Aupuni, it was, that was what they straightened out between the years
of 1845 and 1892 with the Highways Act. They straightened out portions of it. Every deed has
a, I sold real estate there so I used to interpret the Hawaiian deeds and find what they said; and
their boundaries are that Alanui Aupuni. And it’s different than the old Alaloa Trail. It’s very
interesting but you’re competing with the heritage corridor, Hilo-Hmkua Heritage corridor,
which is on our General Plan that you’re to protect it. And it’s on the DBED’s goals for the year.
It’s also on the Historic Preservation’s goal of the year, that we’re trying to increase the economy
based on the heritage corridor, the Hilo Hmkua Heritage Corridor, Drive, is what they call it.
WOODWARD: Okay. Let me just ask you -.
ROHR: Okay.
11
EXHIBITC
WOODWARD: To summarize. The message I got is that you think this is going to
significantly affect your B&B business?
ROHR: It is.
WOODWARD: Okay, is there anything further that you wanted to say?
ROHR: I am willing to just step into the contested case hearing. They want to me to say that
I’m an environmental activist. But I’m just going to say this – it wasn’t by choice. I was an
environmentalist. I witnessed the, I went and saw the files and saw that they were polluting.
And they’re actually heat -, the last, HBEI actually heated up the ocean offshore. They measured
that it was like several temperature, several degrees, centigrade different, in different stations.
Two years, they didn’t sample two years. Out of five, two times they heated up the ocean, two
times they didn’t take readings. So I don’t trust people anymore. Because I was forced to decide
am I going to do the right thing and report them to the EPA? I didn’t want to do it. I’d have
rather gone boggey boarding at the time. I was selling real estate. I knew it would affect my
business, it did. But you have to ask yourself, can you do nothing? No, I’m sorry, I can’t do
nothing. No matter what happens I can no longer do nothing, because I made a commitment.
That’s who I am. But that’s not what you asked me. And so I got off. But, Elaine, I did that for
you. Okay, what did you ask me? I’m sorry.
WOODWARD: I, just summarize and if you had any –.
ROHR: Oh, summarize.
WOODWARD: Yeah.
ROHR: Oh, summarize. Okay, summarize, you must give full meaning -. I mean you must
consider all your rules. That’s case law. Your rules state that the first, that they can’t schedule
the hearing until after the application is complete. There is, basically everything on the first page
is summarizing your rules. But in here I would like you to some time read it. And this is my
suggestion on how to resolve this: I think we should go into closed session and talk about
resolving it amicably with a decision that you’re not making any decisions about the permit.
And Hu Honua and I can decide what we want to do, whether we’re going to court on this or
whether we’re going to decide now how to proceed. I think that I could proceed and just jump
into the case as it is now. And -. Again, Elaine has been very generous to say, hey, we’ll try to
consolidate our case. She has real concerns because she lives there. And my concerns are
because I’m a -. But she does recreate there, too. That’s how we know each other. She’s a
member of PASH and she, anyway -. Sierra Club hikes on those trails and people do use those
trails. And there is one right there at the plant that I sat in hearings on for a year and a half; and
we got one more public access, which is the vehicular access to Iron Pin. And the parking lot is
right there where the trucks are going by; and they did not put that on their plan. They didn’t put
Lono Kaheo’s Stream on their plan. There’s a stream, maybe 500 feet away from, or less, maybe
50 feet away from their property line.
12
EXHIBITC
DOMINGO: Mr. Chairman? Mr. Chairman?
WOODWARD: Yes.
DOMINGO: Point of personal privilege?
WOODWARD: Yes.
DOMINGO: Can we have a five-minute recess?
WOODWARD: Sure.
ROHR: Why don’t you -. Okay.
WOODWARD: Okay. And we really would like to have you summarize, okay, if you would.
ROHR: Sorry.
WOODWARD: We’ll take five minutes.
RECESSED i Sgd Bg`hq b`kkdc ` rgnqs qdbdrr `s 0091/ `-l-
RECONVENED i Sgd lddshmf qdbonvened at 11:25 a.m.
WOODWARD: All right. Ms. Rohr, did you want to give us a brief summarization?
ROHR: Okay. One, I only received this Hu Honua’s objections a half an hour ago. One of the
things that they stated was I didn’t testify that the hearing was untimely at the time. I heard other
people state that the application was incomplete. I have three minutes, I’m not going to repeat
what someone else said. It’s not a requirement that I testified about it, it’s just that somebody
testified about it. I don’t testify about things that someone else testified on. Okay, -. Due
process says that I have a right to a full hearing.
The Planning Department exceeded their authority when they scheduled the first hearing. It’s
unlawful rule making under HRS 91. Your rules, you have to give full consideration to all your
rules. And if a mistake was made we have to figure out the fastest way to get back and start over
again, the fastest without costing a lot of public money. Part of the problem was Hu Honua, as I
understand it from knowledge and information I’ve received, PCSI stated that it was Hu Honua
who somehow pressured this young archaeologist to put “Final Report,” and which they sent to
you. That was a fabrication. You cannot allow people to fabricate just to get a hearing. No
matter what happens today it’s on the table what has occurred, what mistakes have been made.
Do you want to decide now how we go forward, or do you want to wait until a contested case
hearing in October, and then more hearings, and then a decision, and then a court case, and then
you come back around, and you come back to the same point?
13
EXHIBITC
I think the Planning Director knows the truth. She knows where she stands and I don’t -. I
guess maybe she can’t just say, oh, yeah, we realize now that they didn’t meet the number 5, just
the 9-11(b)(5) historic preservation procedures, in hindsight -- you know, oh, yeah, we were
trying to meet that 45-day deadline on the, had to get to hearing. Well, we just discussed why 45
days is not enough time; and people deserve a full hearing, including me whose business is going
to go under if you pass this. As it stands, the permit as it stands, the permit says 27 times, or the
historic literature review says 27 times that there are no historic properties. The permit states
about ten times there’s no historic properties. There are historic properties. It’s a factual error. I
haven’t seen them try to amend the permit or respond to any of these things.
For three months I’ve been talking, I’ve been writing, I’ve been calling, I’ve been trying to get
answers. And nobody, because it’s a contested case, it’s we don’t want to talk about it. Well,
that’s going to be a long road back to the beginning. So I think Hu Honua should do the right
thing now, admit that mistakes were made and agree to start over next month, which would be
the fastest way to do this. Just withdraw the application and agree to start over, rather than
fighting through six months to get back around to the same old thing. These errors aren’t going
to go away. They’re not something that you can -. Okay, that’s it. I’ll summarize.
Your own rule says that you have to give common meaning to words and that you must, you
must look at all your rules. Okay? So you can’t interpret also, that’s the other thing. Chapter,
or, HRS 91 states what a rule means, and it’s written in this document. If you’d like to consider
this I will accept that you don’t make a decision today. If you need more time to go over this,
decide the implications, if Hu Honua would like more time, that’s fine.
WOODWARD: All right. Do we have any questions?
DOMINGO: One question.
WOODWARD: Yes, Commissioner Domingo.
DOMINGO: Ma’am, you made reference to PCSI -.
ROHR: Uh huh.
DOMINGO: Exerting pressure on this individual with regards to completing their report and -
then -.
ROHR: Right, putting “Final” on it.
DOMINGO: Yeah, “Final Report.” And you further stated that that report was fabricated?
ROHR: No, the report is not fabricated. The page that says “Final” on it, you can’t put final on
an archaeological review report unless the State Historic Preservation Division agrees that it’s a
final. And they were told that it was, that it had inaccuracies.
DOMINGO: So that’s, so when you said that it was fabricated -.
14
EXHIBITC
ROHR: No, no, no. I said he put pressure.
DOMINGO: You mentioned the word it was “fabricated, ma’am.
ROHR: The page that says “Final.”
GONZALEZ: Please don’t speak over the Commissioner. Let him finish his question and then
you can answer. It muddles the recording of what’s happening and it makes the record unclear.
ROHR:Okay, sorry.
GONZALEZ: Thank you.
DOMINGO: You know, when you said that it disturbed me very much because you’re accusing
an individual or individuals of breaking the law, you know. Because you used the word
fabricated; and that bothers me. And when you used that and you freely used other languages
and other words to emphasize your point, I don’t really know whether in fact you’re saying that,
whether in fact it’s a fact or not.
ROHR: PSCI wouldn’t issue me a letter about the true circumstances of this whole historic
review procedure because Hu Honua is their client. But it slipped out of his mouth that there
was some sort of pressure on the part of Hu Honua to this young archaeologist to put a final,
front page on the document saying “Final.”
DOMINGO: Okay.
ROHR: The word final, it’s not against the law to use the word final. They can be ignorant and
no one was going to punish them. He was eager to get to the hearing. He had a piece of
information he had to satisfy a condition for. He, it was, it was a bad decision to do that.
DOMINGO: Ma’am, you said that he was pressured and it came from his mouth. Could you tell
me exactly who said that?
ROHR: Well, this is all, this is all just allegations, right?
DOMINGO: You know -.
ROHR: It came out of his mouth the, Steve -. You call up the archaeologist -. And he won’t
repeat it because Hu Honua is their client. He took the responsibility -.
GONZALEZ: Ms. Rohr, the question simply is what is his name.
ROHR: Steve, his name is on the report. He’s the business owner, Steve Clark. I talked to him
on the phone a couple of days ago, and it just kind of slipped out of his mouth. Then he took
responsibility for it and said he should have done, he should have overseen the, supervised
15
EXHIBITC
closer. Somehow that got out of his office without him really realizing what happened. There
was, it was, it’s kind of like comical errors that went along the way. But the thing is, is now that
we all know it happened Hu Honua is the only one who can step up to the plate and stand back
and say we made a mistake.
DOMINGO: Ma’am, to go further on, my question is you referred to historic properties?
ROHR: Uh huh, yes.
DOMINGO: Are those properties adjacent to or part of the properties that once Hilo Coast
Process Company had their generating plant and where they stored their coals and all the
appurtenant equipment that they needed to produce power?
ROHR: It’s part of the property that they’re going to be using, it’s on this map that you have -.
DOMINGO: Okay, okay, -.
ROHR: And it labels the old boiler -. There’s an old boiler, the foundation of the old boiling
house; and there’s part of the 18, they found the 1890’s mill. In around 1910 they dropped the
grinding equipment 60 feet lower than the boiling house so they could bring in the cane by flume
and get more of a drop, and they found that. And I, I think I, I’m not sure if I included a, I guess
I didn’t include a photograph of it. But there’s a, you can see right in front of Outfall 3, which
Hu Honua is going to be using, you can see historic properties. I photographed, I sent them all of
my photographs -.
WOODWARD: Okay, excuse me. We’re getting into specifics of the application; and, really,
the things we’re deciding today is standing; and that’s based only on whether her application is
timely, and whether she qualifies as somebody with interest other than the general public, not
specifics of the application. So I don’t want to get too far afield. We’ve already kind of
branched way out in this area. And I would like Hu Honua to have a chance to respond. So do
we have any specific questions for Ms. Rohr that would deal with her petition for standing?
Okay, seeing none, thank you. You may be seated, Ms. Rohr. And if we could get Hu Honua’s
representative up here if they’d like to add anything. All right, good morning. If I could get you
sworn in, if you’ll raise your right hand. Do you swear or affirm to tell the truth today before the
Windward Planning Commission?
AUSTIN: I do.
WOODWARD: Okay, if you’ll give us your name and address, and then you may add whatever
you’d like.
AUSTIN: Sure. My name is David Austin, spelled A-u-s-t-i-n. And I’m an attorney at
Yamamoto and Tuttle; and I represent the applicant. And my address is 700 Bishop Street, Suite
200, and that’s in Honolulu. I’m not going to spend time discussing any of the factually
inaccurate and quite irrelevant testimony Ms. Rohr has proffered thus far regarding the merits of
the application. We’ll focus in on whether or not we think she has standing, and the answer is
16
EXHIBITC
no. Her application is untimely. As you know your rules say that a petition should be filed no
th
later than seven calendar days prior to the first meeting on the matter, which happened May 7.
th
And Ms. Rohr filed her application on July 13, which is a little over two months late.
Second, Ms. Rohr bases her application on the fact she believes her interest is clearly
distinguishable from that of the general public, which is the standard. Again, that’s incorrect.
She was in Hilo which is about 12 miles away from the power plant. Her desire to use the
Hmkua coast for recreational purposes also doesn’t distinguish her from the general public.
And her background as an environmentalist and having an education in planning, which she also
proffers as reasons why she has a distinguishable interest, are obviously not. Plenty of people in
the public have those, I guess, can meet those criteria.
With respect to the fact that the application is incomplete, I’m going to just quickly go down
Ms. Rohr’s procedures as required by Rule 9 and explain. Number 1, our application is
complete. Number 2, we did provide with our application a description of a plot plan that was to
scale. Number 3, we received a waiver for the shoreline survey. Number 4, although the
applicant may apply to the Commission for the SMA Permit, we have received a permit, the
permit was transferred from the original applicant to us; and it’s my understanding, and I could
be wrong, that the permit runs with the land. So as it goes from owner to owner the permit is
going to go with them. Under 5, we did comply with 5(c), we did produce a copy of the letter
written by the applicant to the DLNR. After the DLNR didn’t respond within 30 days, we
simply followed Rule, it’s actually 9-11(b)(I)(5) not just 9-11(b); and we attached a copy of a
letter. So those are really our arguments.
I mean her application to intervene is untimely, and she doesn’t distinguish her interest from that
of the general public. And as Mr. Woodward had commented, also, it is prejudicial. We’ve
already started the contested case proceeding with the hearing officer. We’ve had an initial
meeting, we’ve filed some pleadings, and so that’s another reason why we feel that her
application should be denied.
And I just wanted to respond to just a question that Mr. Domingo had asked. The issues related
to the thoroughness of Hu Honua’s assertions in the application are all going to be vetted through
the process of the SMA hearing. So they’ll ask us plenty of questions I’m sure. There are
already 21 or so intervenors. And we’ll have to be, for the, to the sufficiency of the hearing
officer and then eventually to you to, you know, make sure that we’ve made our point clear and
that we do meet all the requirements as required by law. Thank you.
WOODWARD: All right, do we have any questions for Mr. Austin? Okay, seeing none, you
may be seated. Do we have a motion? Commissioner Au.
ROHR: Could I say one more thing? He said something new.
NOMURA: Excuse me, mike when you speak please.
GONZALEZ: She has a right to rebut.
17
EXHIBITC
WOODWARD: All right, if you’d like to rebut, one item briefly.
ROHR: Okay. He tried to say that it went with the land. The permit itself states that it applies
to successors and assigns. So, and maybe in your rules that it runs with the land, but that’s not
the issue. No-where in your rules, and if you would read the material I gave you, I’d appreciate
it, because there’s one on the matter of void and stale. And in there it states no-where in your
rules does it state that landowner, successor and assigns is the same as applicant and no-where in
your rules does it authorize someone to amend a different applicant’s permit. It doesn’t, there’s
no authority in your rules or in SMA 205A. It says you may amend a valid permit, that’s what it
says. So, again, in my writings I put down why it’s not a valid permit. I also argue that there’s
no authority for Hu Honua to amend somebody else’s 25-year old SMA Permit. There’s also
case law that says that people who use some place for recreation, they have standing. There’s
also case law that says that you can’t amend an amendment. They basically took all of the
conditions of the 1995 amended SMA and put them on the side, all of them. They’re amending
an amendment, and there’s case law that says you can’t do that. I think it’s the Topliss case that
they always talk about --. But I’m not sure, it could be a different one. I have it somewhere, but
your attorney will know.
So there’s no authority. You must give full weight to all your rules.And I don’t know where we
go from here. Thank you.
WOODWARD: All right, thank you. Okay, Commissioner Au.
AU: I would like to make a motion regarding SMA 221 to deny petition for standing based
upon the objections contained within the August 5, 2010 letter from Applicant Hu Honua.
KERN: Second.
WOODWARD: Do we have any discussion?
AU: I would just like to make one comment regarding Ms. Rohr. You know she has a lot of
concerns and all these concerns will come up in the contested case hearing. And, you know,
what baffles me is that at this point, immediately right now, it can be a coal burning plant,
vghbg hr vnqrd ,, H cnmls jmnv he Hll bnqqdbs+ ats hs rdems to me in this process if -- if we are,
if this permit goes with the land. Rn sg`slr `kk H g`ud sn r`x-
WOODWARD: Okay. Any further discussion? All right. And one other thing is that there
are certainly other options. She obviously has connection with one of the, one of the
intervenors can be called on to testify in the matter and can certainly apply, can give more
testimony in the future here in sghr l`ssdq- Rn kdslr fds `+ kdslr s`jd ` unsd- Idee-
DARROW: For clarification, Commissioner Au, looking at the petition for standing from
Claudia Rohr you had mentioned July 5 th?
AU: August 5 th.
18
EXHIBITC
th
GONZALEZ: August 5.
th
WOODWARD: August 5.
th
DARROW: August 5 -.
GONZALEZ: Objections stated within the August 5, 2010 letter.
DARROW: Oh, okay, okay. Thank you. Okay, with that vdlkk s`jd sgd qnkk b`kk-
Commissioner Au?
AU: Yes.
DARROW: Commissioner Kern?
KERN: Aye.
DARROW: Commissioner Domingo?
DOMINGO: Aye.
DARROW: Commissioner Ono?
ONO: Aye.
DARROW: And Mr. Chairman?
WOODWARD: Aye.
DARROW: The motion passes five to zero.
WOODWARD: Okay, that is it for the agenda today.
The discussion ended at 11:46 a.m.
Respectfully submitted,
Sharon M. Nomura, Secretary
Windward Planning Commission
19
EXHIBITC