Loading...
HomeMy WebLinkAbout2008-08-22 TECOMMERCE PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT AUGUST 22, 2008 E. COMMERCE ENTERPRISES A regularly advertised hearing on the application of CORPORATION (SMA 08-000027) was called to order at 11:15 a.m. in the Waikoloa Beach - Marriott Hotel, Alii III Room, 69275 Waikoloa Beach Drive, Waikoloa, Hawaii, with Chairman Rodney Watanabe presiding. PRESENT: C. Kimo Alameda ABSENT & EXCUSED: Rene’ Siracusa Lani Bowman Takashi Domingo Andrew Iwashita Shelly Ogata Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel  Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager OgxkkhrEtihlnsn+Rs`eeOk`mmdq Jeff Darrow, Staff Planner Maija Cottle, Staff Planner Deanne Bugado, Planner, Kona Office And approximately 17 people from the public in attendance. APPLICANT: E. COMMERCE ENTERPRISES CORPORATION (SMA 08-000027) Special Management Area Use Permit to allow the construction of an approximately 2,000 lineal feet pedestrian path and landscaping. The properties involved are a part of the Pahoa Beach Estates Subdivision located along the western banks of Waipiele Gulch, Pahoa, North Kohala, Hawaii, TMK: 5-5-8:66 and 67. WATANABE: We are now on Agenda Item No. 3. The applicant is E. Commerce Enterprises Corporation. This is SMA 08-000027. I believe we have an individual requesting standing here, and so -. Are you going to handle this, Mr. Darrow? DARROW: Yes, Mr. Chairman. WATANABE: Yes. Why don’t I turn it over to you then. DARROW: Thank you, Mr. Chairman. If you could please bear with me – this presentation has a few additional photos more than our average. If I can direct your attention to the location map, the applicant in this case is E. Commerce Enterprises Corporation. They are EXHIBIT B 1 requesting a Special Management Area Use Permit, an after-the-fact Special Management Area Use Permit, to allow the construction of an approximately 2,000 lineal feel pedestrian path and landscaping. The area of this application is within the North Kohala District. More specifically, we are looking at the Akoni Pule Highway running in an east-west direction, we have Hawi Road running in a north-south direction, and the area of the application is outlined in black; this is part of the Pahoa Beach Estates Subdivision. This gives a little closer location map of the properties. We have, from Hawi Road, we have an access road called Uli Road, which has a little cul-de-sac at the end of the road. We are looking at Parcels 66 and 67 that’s identified in your background/recommendation. This is an aerial photo, which again shows Uli Road with the end of the cul-de-sac, the two parcels. We have a dwelling that’s been constructed on the outer parcel. This is the gulch, and the location of the pedestrian access and landscaping area. We also have some other photos, but before I go into those, I just want to give a brief history on this. In March 2003 this location was granted final subdivision for five lots, Subdivision 7640, which created Pahoa Beach Estates Subdivision. Within that subdivision map, there was a pedestrian public access. After this subdivision occurred, there were several violations that occurred with grading of these pedestrian accesses to quite a wide width that seemed to be providing vehicular access. The first one was in December 2003, which was basically a steep road that comes from the applicant’s residence down to the gulch and then this area here down to the beach area. Additionally, in September 2004 there was another violation that was issued; that was actually four separate violations because it involved the previous violation as well as grading of a new pathway from the end of the cul-de-sac to the area where the previous violation occurred, which was approximately 0.3 mile. We’ll be able to show some photos. These site photos were taken in September 2004. This is across the gulch looking towards the applicant’s residence; you can see the pathway that’s been graded down to the Pahoa Beach area. This is the pathway that was graded on the second violation up to the end of the cul-de-sac. Again, these were taken in September 2004. It shows the western portion of the gulch, and shows the width of the road here. This is down by the beach area showing the path continuing on. These photos were taken in November 2005, again, showing the erosion that’s beginning on the cliff side as well as the growth that’s been occurring as far as landscaping. The Planning Director required the applicant to put in what’s called “jute” netting to be able to stabilize the cuts on the first violation; this is, and also to do landscaping, this is part of that requirement. Here is another photo showing that. Again, this shows the landscaping that was starting to come in a year later. These photos were just taken recently in May 2008. This shows the landscaping that’s in. This is the beach. This shows, again, the steep access road from the gulch up to the applicant’s property. We have the other – here is the access coming down; this one goes to the beach area, and then again we show the second violation that occurred on the pathway. The applicant has submitted this after-the- fact permit in response to a requirement in the Notice of Violations to be able to correct this. A second revision of the subdivision map has been approved by the Planning Director, which aligns this new pedestrian access in line with what’s on the ground. There are some conditions to mention. We do have Condition 3, which requires concrete jersey barriers to be put along those steep cuts, so that if anything falls down, it’s going to catch those. There also is Condition 6 requiring public access from Hawi Road to the cul-de-sac and then also to the beach. The Director wanted me to mention Condition 7 – there has been a subdivision that occurred on the properties to the east, and this is in this location, which does have a lateral public EXHIBIT B 2 access – the Director wanted to possibly look at a change to Condition 7 being able to put the lateral access on this application. Condition 8 states no vehicular access from the end of the cul- de-sac; we may need to look at a revision on that condition, which would also deal with the access down from the applicant’s residence. Lastly, we did receive a petition for standing from the neighbor just to the east on these two parcels, Parcels 54 and 53, Hermann Fernandez. The Planning Director is recommending that this application be approved by the Planning Commission in response to corrective action from the violations. Are there any questions? WOODWARD: What exactly is a jersey barrier? DARROW: Those are the concrete barriers that you see usually along a highway that separate two sides. They are quite large, yeah, about four feet high and kind of wide at the base and then they come up. WATANABE: Okay. Ms. Bowman. BOWMAN: Could you show a picture of where they will be, just so we -? DARROW: They would be placed along these, along the western portions of the gulch or out the pathway where the cuts are higher than four feet. So if anything was to fall off these cuts, these barriers would protect any debris from hitting anybody that would be accessing the Pahoa Beach. BOWMAN: So if those cuts weren’t as deep, none of this would have had to have been, right? DARROW: Well, at least this condition. BOWMAN: Thank you. WATANABE: Okay, Mr. Alameda. ALAMEDA: Thank you, Mr. Chair. I just want to remind Fellow Commissioners, please be acknowledged by our Chair before speaking so that it doesn’t turn into a free-for-all. It’s okay, Commissioner Woodward, we’ll give you one more chance. I forgot what I was going to say. It’ll come back to me. Thank you, Mr. Chair. WATANABE: Okay. Mr. Domingo, you look like you are ready to ask something. DOMINGO: Thank you, Mr. Chairman. To the staff, what was the intent of the applicant to build the road from the cul-de-sac? Was it -? I look at it both ways, you know, just access to the property by the public, or if it’s a road that’s been built for vehicular traffic and that would also provide access for the public – I think that’s noble of him to do that. And I just want EXHIBIT B 3 to know without, the history of the property, where did the people, the local people, you know, of Kohala, when they used to go fishing, where would they usually go? Is there a special place around there that’s good for fishing where the public used to go before? YUEN: Well, to answer your first question, we have documentation that the owner promised the buyers in the subdivision that they would have a vehicular access to the beach. Where both these violations, and really we are only dealing, the permit here only deals with the second violation, the one the road cuts from the cul-de-sac, is not where the public access was supposed to be; it does not follow the public access. As far as the public use of the property, the public interest in the area, the Pahoa Beach which is at the bottom of the gulch is kind of a, it’s a rocky beach, but it is a place where you can get to the water’s edge; it’s not a swimming beach at all, but it is a place where you can get to the water’s edge and people can surf, cast or shore fish or just be by the ocean. There are not, as you know, in North Kohala there are not that many places that are like that; most of it is a steep cliff drop-off. WATANABE: Mr. Domingo, pretty much satisfied? DOMINGO: I reserve my comments for the debate. WATANABE: Okay, yes. I’ve been reminded by Counsel that actually we should not get too far into this deliberation because we do have a request for standing in a contested case hearing. And I would remind you also that the background information indicated that the applicant is appealing the decision of the Planning Director. So it’s a little more complicated than our normal cases. Yes, Mr. Alameda. ALAMEDA: Thank you, Mr. Chair. Actually, that was my question. The petition for standing, it looks like everything was followed accordingly? The documents we have, anything missing, or is everything okay with that petition? DARROW: There are some issues, but I think at this point maybe if we could have the representative, the Planning Director and the petitioner address those issues. WATANABE: Okay. We don’t have to have the Planning Director up there yet, yeah? Okay. So why don’t I call up the applicant’s representative, Mr. Lim, and also call up Mr. Hermann Fernandez who is the petitioner. May I swear both of you in, please. Do you swear or affirm to tell the truth now before the Planning Commission? LIM: I do. FERNANDEZ: I do. WATANABE: Thank you. And before you make comments, would you state your full name and address for the record, please. EXHIBIT B 4 LIM: Thank you very much, Mr. Chairman. I’m Steven Lim from Carlsmith at 121 Waianuenue Avenue in Hilo. With us today are the officers of E. Commerce Enterprises Corporation, the applicant, Ahmad and Rachel Mohammadi. Thank you very much. WATANABE: Okay. Maybe you can share that mike and use the other one. I believe it’s working. FERNANDEZ: My name is Hermann Fernandez, and my address is 56-820 Waiolu Place, Hawi, Hawaii. WATANABE: Okay, thank you. Fellow Commissioners, I think what we are wanting to do now is establish whether we will grant standing. And there is a second part to this: We need to determine whether we will farm the contested case hearing, if we do grant the standing – if we are going to handle it on our own or farm it out. So that’s what we need to decide immediately. Yes, Mr. Fernandez. FERNANDEZ: I was just wondering if I could make a request. WATANABE: Go ahead. FERNANDEZ: Okay. The reason I thought of the contested case was to protect my rights as being the adjacent landowner, right, because I wasn’t given proper notification of the very first meeting on this matter, right? I don’t want to create a huge conundrum; I just want to have my say as far as these matters are concerned.So if I could have, I don’t want to be, I was informed at the beginning of these procedures that sometimes there’s a limit to how much testimony that can be taken from members of the general public. And so all I want to do is I want to have my say, and then the Planning Commission can go off and make decision that they want to make. WATANABE: Okay, thank you. Maybe to help us out, because I’m not sure if you would be able to work all of this out, it’s my indication that you are already in discussions with the applicant and the applicant’s representative, Mr. Lim, and potentially you all may be able to work this out, but I have no indication as to the probability of that. So typically when we grant standing, we are looking at how you as an individual have any interest over and above those of the general public. And I believe you are the adjoining landowner. Is that correct? FERNANDEZ: That’s correct. WATANABE: So why don’t we address the first issue, which is whether we should grant standing and whether he has an interest over and above the general public? Mr. Domingo. DOMINGO: Mr. Chairman, one issue. According to the submittal by Mr. Fernandez, Mr. Lim was originally contacted and he in fact had done some work in his behalf. And then I think Mr. Lim also represents the applicant for this permit. To Corporation Counsel, what does this in fact mean? How would you interpret this? EXHIBIT B 5 WATANABE: Mr. Torigoe. TORIGOE: Thank you, Mr. Chairman. Well, you know, it’s a matter that Mr. Lim as an attorney licensed in Hawaii would have to deal with under the Hawaii Rules of Professional Conduct, and so really it’s a matter that is between Mr. Lim and the Office of Disciplinary Council. There are provisions in the rule by which in some cases you may be able to get a waiver of any potential conflict or actual conflict to some extent. But I wouldn’t ask the Commission to try and judge that; I would basically just ask Mr. Lim if he has resolved the matter with Mr. Fernandez – and Mr. Fernandez also, you know, whether there is any issue of conflict of interest that needs to be settled, if Mr. Lim is going to proceed as representing the applicant here. WATANABE: A follow-up to that, Mr. Torigoe, this in no way would affect any of the decisions that we may make in accordance, because it’s really between Mr. Lim, the applicant and the intervenor. Is that correct? So to that end, any decisions that the Commission makes are not affected by that. TORIGOE: Well, again, that’s something that, first, I would like to ask the parties whether they worked that out. Ultimately, you know, there is a possibility that if Mr. Lim should have recused himself from representing the client, and if you guys make a decision, ultimately there is a possibility that the decision in some way could be questioned. WATANABE: Okay, thank you. Mr. Alameda. ALAMEDA: Thank you, Mr. Chair. The impression I get is that right now he is a potential intervenor, and the request kind of sounds like reducing to a potential testifier. So you know, in terms of granting standing, it doesn’t seem like he really wants standing, but he just wants to have a voice on the record so that we see his side of the story. So we could reduce this to just testimony, from what I understand. WATANABE: Potentially that could happen. Now, let me ask Counsel. Mr. Torigoe, would you comment on that? Because, you know, if we don’t grant standing, we just give him testimony, can he then come back later on, because the decisions don’t go quite his way, and say, hey, I object now? TORIGOE: Right. Well, that’s something that Mr. Fernandez should be fully aware of, you know, if he decides. Basically, if you would like to take him up on what seems to have been his statement that he doesn’t really want to make a big deal of this, he just wants to have his say, since he’s already filed the petition, then basically you would ask him to withdraw his petition. In order for him to do that, you will make sure that he understands what he is giving up at this point, which ultimately, you know, I would say you should consult your own legal counsel before making that decision. But basically, you know, if you have the right to be an intervenor in a contested case, which usually adjoining landowners are given that right, then you would have the right under the Planning Commission Rules to engage in a trial-like proceeding in which, you know, you can present evidence, you can cross-examine the other side’s witnesses, and very importantly if things don’t go your way at the Planning Commission, then you could EXHIBIT B 6 have the right to take a further appeal based on the record to Circuit Court and possibly all the way up to the Hawaii Supreme Court. So if you, you know, maintain your petition, if you get standing as a party in a contested case, those are the rights that you will have. If you withdraw your petition for intervention, then basically you’ll be giving up your right to have the full hearing and to take appeals up through the court system. But again, you know, if you are really concerned, then you really ought to be talking to your own legal counsel to find out whether you should maintain this petition or give it up at this point. FERNANDEZ: Right. I mean, again, I’ve thought through this, and mainly what I want is I just want to have my position known to the Planning Commissioners, right? That’s my No. 1 goal in this application. And if I’m allowed to do that, then I’m fine with giving up my rights to a contested case hearing. WATANABE: Okay, then, Mr. Fernandez, let me make sure I got this clear. You are not so much wanting to be an intervenor; you just simply want to provide testimony and you would be satisfied with that irrespective of what results may come out of the decision made here. FERNANDEZ: That’s correct. WATANABE: So I think it’s appropriate – could I ask you, then, to withdraw? Uh, Mr. Iwashita? IWASHITA: No, that’s fine -. WATANABE: You have something -? IWASHITA: You can continue. WATANABE: Okay. Could I then ask you to formally withdraw for the record your – what you call – request for standing? FERNANDEZ: I will withdraw my rights for a contested case hearing and standing, if I’m allowed to present my case fully at this meeting. WATANABE: Okay, okay, now -. IWASHITA: Mr. Chair. WATANABE: Yes, Mr. Iwashita. IWASHITA: May I address the applicant (sic)? Mr. Fernandez, I just want to clarify, your concern is you want to be able to present, like we have written testimony you’ve presented, you want to make sure that’s part of the record? FERNANDEZ: Correct. EXHIBIT B 7 IWASHITA: Okay. Okay. My understanding is that – has he signed up as a witness? WATANABE: Yes, he has, as a testifier, he has. IWASHITA: Okay. So you’ve signed up to give testimony as part of the public testimony, so you have that right. And I guess the concern that I’m hearing from you now is that as long as you are assured you are able to testify as a witness, you are okay with that? FERNANDEZ: Correct. IWASHITA: And that you are willing to withdraw your petition to intervene? FERNANDEZ: Correct. IWASHITA: And that you are, in making that decision, you’re not relying on any of the statements made by Mr. Torigoe? FERNANDEZ: Correct. IWASHITA: Thank you. WATANABE: Okay. I have one for the question, though, because you did mention “fully,” and I don’t know what “fully” encompasses – if “fully” encompasses this and further oral testimony. But we do limit it, I mean, we are not going to allow you, like, an hour and a half or two hours -. FERNANDEZ: And I don’t plan on spending that much time here -. WATANABE: Okay, okay, then I understand what you mean by “fully.” Then, I guess he’s already indicated that he’s willing to withdraw his -. Yes, Mr. Torigoe. TORIGOE: What we could do, too, is that, if Mr. Lim is agreeable, we could go ahead and, if they would agree, you know, to say, okay, we’ll allow Mr. Fernandez to go ahead and present his testimony and Mr. Lim to basically present his case; if they will agree to postpone a decision on standing until after that is done, so if Mr. Fernandez is satisfied that he has had his say, then he can withdraw it and you can go ahead and make a decision. WATANABE: Mr. Lim, do you want to make some comments to that? LIM: Yes, thank you. I’ll clear up the attorney-client representation issue. Both Mr. Fernandez and Mr. Mohammadi are sitting here, so I’m going to represent to the Commission that I’ve received client waivers from both of them to be sitting here today, and I’ll ask them to confirm that. WATANABE: Mr. Fernandez? EXHIBIT B 8 FERNANDEZ: Yeah, I confirm that. WATANABE: Okay. I guess I’ll have to swear them in then. May I swear you in? R. MOHAMMADI: Yes. WATANABE: Would you raise your right hand, please. Do you swear or affirm to tell the truth now before the Planning Commission? R. MOHAMMADI: Yes, I do. WATANABE: Thank you. Would you state your full name and address for the record, please. R. MOHAMMADE: Rachel Mohammadi. I’m vice president of E. Commerce. P. O. Box 219, Hawi, Hawaii, 96719. WATANABE: And is that your husband? A. MOHAMMADI: Yes, I’m her husband. My name is Ahmad Mohammadi, P. O. Box 219, Hawi, Hawaii, 96719, as well. WATANABE: Thank you. So you would like to confirm what Mr. Lim just stated? A. MOHAMMADI: Yes, sir, we do. WATANABE: Okay, thank you. Okay, Mr. Lim, then that clears up one issue. Now, we are with regard to delaying our decision on the standing. LIM: What I’ll do is, I’ll also make my technical objection to Mr. Fernandez’s request for intervention as a party for the record. And to address the specific question on how maybe we should do this is perhaps Mr. Fernandez should be allowed to present his full testimony and say whatever he wants to say, submit whatever exhibits he wants to do; if he feels satisfied after doing that, then he can decide on whether he wants to withdraw as a party. WATANABE: Okay, okay. Is that, Mr. Torigoe, is that procedurally correct? TORIGOE: Sure, if Mr. Fernandez is agreeable to that. FERNANDEZ: I’m agreeable. TORIGOE: And the Planning Director? YUEN: Yeah, that’s great. EXHIBIT B 9 WATANABE: Okay, okay. Then, shall we, Mr. Lim, you may be seated along with your client, and we’ll allow Mr. Fernandez to provide his testimony with regard to this SMA application. So the floor is all yours, Mr. Fernandez. FERNANDEZ: Thank you. As I mentioned previously, I’m the adjacent property owner to Mr. Ahmad Mohammadi, or E. Commerce Enterprises’ land. And mainly I’m just going to go over, you know, how we sort of got into this situation where, you know, the roadway cuts on his property that are very visible from my property. I sent a letter to the Planning Director on January 21, 2004, and it said the following: I’m the adjacent property owner of 5-4-8:36, directly to the east of Mr. Mohammadi’s property. I received a copy of the letter you sent to Mr. Mohammadi, dated December 22, 2003 – which was his violation letter, first one. I want to describe a little of the history that lead to the action by Mr. Mohammadi. Also I have a few comments and questions regarding the solutions that the Planning Director proposed. Mr. Mohammadi requested an easement across my property in January and February 2003, he provided a map and survey of the easement area, which I forwarded to my lawyer at that time, Steven Lim. In February and March 2003 Mr. Mohammadi hired Earthworks Contracting to grade a roadway and level the area in the rear of Waipiele Gulch. The grading of the roadway toward the back of the gulch caused debris to be pushed onto my property – all right? The day this happened I went searching for Mr. Mohammadi in the gulch. I spoke to Mr. Dwayne Carvalho, the bulldozer operator for Earthworks Contracting, who said he had permission from Mr. Mohammadi to grade this area and was told this was all Mohammadi’s property. Mr. Mohammadi then walked up behind when I was talking to Mr. Carvalho, and we inspected the debris on my property and he said he would uncover the property pin because it was buried by the debris, and clean up the fallen rocks on my property. Because the slope that he cut was very, very steep – if you notice, you can’t tell much from the pictures, but the way our property ownership lies is that Mr. Mohammadi owns Pahoa Beach, but then the property line cuts across the bottom of the gulch, so the very, very eastern sides of his property are very steep parts of the gulch – so if you cut anywhere in there, all those resulting debris will fall onto my property, which is in more, or the bottom of the gulch. So that’s the picture of what happened. Even after this occurred, he still expressed his desire to obtain this easement, okay? So on Wednesday, March 2003, Steven Lim wrote Mr. Mohammadi to cease and desist all activities that deposit debris on my property, and in the same letter an offer was made to sell Mr. Mohammadi this easement for $150,000 because I also knew that Mr. Mohammadi wanted to use this access easement area for his property, lots, that he was, you know, selling at that time; so I thought, you know, if he’s selling lots for a million or a million and a half, that the easement would be very valuable. So on Friday, March 19, 2003, Mr. Carvalho, the bulldozer operator, under Mr. Mohammadi’s direction, cut a 12-foot wide roadway cut towards Pahoa Beach. This new roadway was located on the eastern edge of Mr. Mohammadi’s property, but an enormous amount of debris from the roadway cut fell on my property, and giant boulders landed in the bottom of the gulch, again, on my property. So this was a second cut, right, that he made, right, after I’d spoken to him before, okay? When I confronted Mr. Mohammadi, he showed me the letter dated March 4, 2003, “Revised Final Plat Map Final Subdivision Approval No. 7640,” from the Planning Department that stated, “The subdivider shall clear and grade the pedestrian access easement to safe walkable condition within six (6) months of final subdivision approval from the southwestern corner of Lot 21 to the sea, and thereafter shall maintain the easement in EXHIBIT B 10 safe walkable condition free from obstruction.” He claimed this letter gave him permission to cut this roadway to Pahoa Beach, and offered to clean up all the debris, but I was so upset, I just said, leave it alone, I don’t want to have additional bulldozer tracks in the bottom of the gulch, which is on my property. I have pictures if you want them to confirm what happened before and after this cut. So, continuing, I knew Mr. Mohammadi wanted vehicular access to Pahoa Beach as a marketing tool for his subdivision. I actually took pictures of the roadway before the grading, and the reason was real simple. When he asked for the easement that was on my property, I asked my in-house engineer at the firm I work for to look at it, and he said, well, he could go this route, he could go directly towards the beach instead of going around the bottom of this little hill and, but he said, if he does that, any cut he makes he’ll put a ton of debris on your property. Well, I took pictures of it before the cut, and I have pictures of it after the cut, and that’s exactly what happened; there was debris all over, giant boulders of the size ten feet tall, five feet wide, at the bottom of the gulch. So after finding out that Mr. Mohammadi had not obtained my permission, Mr. Carvalho immediately stopped his work and moved all his equipment out of Waipiele Gulch. Several weeks later Mr. Mohammadi, apparently using another bulldozer operator, completed the roadway toward Pahoa Beach, and cleaned up the boulders in the bottom of the gulch, again, without my permission. I think after all this, it would be a travesty if Mr. Mohammadi were allowed vehicular access to Pahoa Beach, okay? And this gets me to my second point – this is on the letter – the solution for Mr. Mohammadi’s transgressions. First, I think he should restore the roadway toward Pahoa Beach to the condition before grading; if it was walkable before the grading, he shouldn’t have done that much excavating. Second, prohibit vehicular access to Pahoa Beach. And this is a question I had for the Planning Director at the time – he told Mr. Mohammadi that he needed jute netting to control the soil erosion; but how can you require jute netting? Mr. Mohammadi would have to be on my property because that’s where most of the soil erosion was occurring, right? So I had that question for the Planning Director. That was the end of the first letter that I sent to the Planning Director. stnd After I sent this letter which was on January 21, on January 22, right, the day after this, my mother and her friend, Amina Carvalho, took a walk from my land down Waipiele Gulch, and heard Mr. Mohammadi yelling at them from the bottom of the gulch. My mom and Amina were still on my land, and Mr. Mohammadi was yelling that they were trespassing and needed to get off his property. Amina had stopped and sat down on the side of the gulch. My mom, with a really thick German accent, was trying to tell Mohammadi that Hermy, my son, owns this property, right? My mother immediately decided not to confront Mr. Mohammadi, and walked back up the gulch. I called Steven Lim the next morning and reported the incident, and told him to inform his client never to do this again. Steven commented that Mr. Mohammadi should not be yelling at anyone at Pahoa Beach. All right? th On March 11 Mohammadi emailed me, asking if he could place jute netting on my property to control the erosion. I refused to allow him to install jute netting on my property. All right? On August 31, 2004, this is about seven months, right, after this first violation letter was sent, I emailed Robert Usagawa, the enforcement officer for the Planning Department. I said: Today I attach photos of Mr. Mohammadi’s new interstate highway in North Kohala. Does he have a grading permit for this new grading work? You can also see a graded flag at the bottom of EXHIBIT B 11 Pahoa Beach, perhaps this is parking for all the new lot owners in the subdivision. He has literally moved thousands of yards of material, and another major runoff and discharge into the ocean is not only likely but probable. Then I remind you that Mr. Mohammadi has already been fined by the County for previous unauthorized grading. He was even quoted saying it is easier to ask for forgiveness than ask for permission.Can somebody stop this guy? Waipiele Gulch is starting to look like a strip mining operation before restoration – and I think I’ve included exhibits and photos in the testimony that shows exactly what it looks like. I asked Robert Usagawa to please email me or tell me if he has County approval for this new grading work, and obviously he did not. In September 2004, the Planning Department sent a violation letter and DLNR sent an illegal activities letter to Mr. Mohammadi for the grading that was performed in August 2004. The magazine “Environment Hawaii,” they published articles on this incident in June 2005 and January 2006. And recently Mr. Mohammadi listed his house for sale for $17,000,000. So I spoke with Kath Luga who was Carlsmith Ball’s and Steven Lim’s paralegal, and she kept asking me, you know, when I filed this contested case, what do I want? And what I want is real, real simple. I don’t want any vehicular access to Pahoa Beach except for emergency vehicles, as the Planning Director has stated in his conditions. One thing that he failed to mention in that condition was that Mr. Mohammadi also has a private driveway from his house to go directly onto this pedestrian access, right? And that’s not called out in the conditions, and I just want to make sure that that is not allowed; that he cannot take his private vehicle from his house and drive down onto Pahoa Beach. I want the land that currently looks like a road because it’s cut like a road to at least be reclaimed so it looks like a path. I understand roads and emergency vehicles – excuse me – I want to make sure that emergency vehicles have the ability to access Pahoa Beach, if anybody gets hurt, right? But I don’t want the access looking like a road. So in other words, can we at least create some kind of landscape to make it look more like a path and less like a road? And finally, if you notice in the exhibits, especially Exhibit A-2, right, the pathway that comes down from his house, I would like it to be reclaimed; I would like the vegetation and the shrubs to look like the surrounding gulch sides instead of having what looks like a giant landing strip coming down the gulch, right? I mean, the whole point in this thing is, I mean, the photos that you see today on the exhibit I gave you were taken on Wednesday, okay? Some of the photos I have, or Jeff Darrow has shown you previously, were taken in August 2004, so that’s over four years ago. And in that time you can see that there’s not been much re-vegetation because there’s not much soil on these slopes of these gulches, and in addition there’s not much rainfall in this particular area, right? So I’ve been told that there is water available and that perhaps soil available. But I would like to see that area reclaimed, and for a real simple reason – I have a beautiful, beautiful view of Pahoa Beach from the land that I purchased, and looking at this abomination in Waipiele Gulch does not help me; I mean, I had a beautiful site picked out and this is what happens. But I really, my main concern is that there’s more reclamation being done, right, than it’s currently on the land. And I hope there is some way that the Planning Director can enforce that. Thank you very much for your time. EXHIBIT B 12 WATANABE: Thank you. Fellow Commissioners, do we have any questions for the testifier? Yes, Shelly. OGATA: Have you seen the conditions that were proposed by the Planning Department? FERNANDEZ: Glad you reminded me. I have seen them. They were sent to me by Steven Lim’s office, and I just had, I mean, my main concerns were, as I expressed back to Carlsmith Ball, is that I want to have the path look like a walking path. I would say if you drove out there now, if you see the pictures now, it doesn’t look like a walking path; it looks like a bulldozer-made road, right? That’s my main, main concern because it’s just, it seems to me that, you know, like with everything else, you know, people can do this stuff. And I remember my, again, my in-house engineer when he first saw this, the words that came out of his mouth were “awesome,” right, could not believe that anybody could do this, right, or could find a bulldozer operator who would actually do this, right? So again, walkable path, right? Reclaim the path where it comes down from his house till it looks like normal vegetation in Waipiele Gulch. WATANABE: Does that satisfy you, Ms. Ogata? Any further questions for Mr. Fernandez? IWASHITA: Mr. Chair. WATANABE: Yes, Mr. Iwashita. IWASHITA: Thank you. So just for clarification in my mind, the area you are talking about that needs to be reclaimed is, I guess, what I would describe, looking at your Exhibit A-2, where you see the house at the top and basically the sward that goes from the house down and intersects with the rest of the graded area? FERNANDEZ: It intersects the pedestrian access route, right, the property line, the access route is supposed to run along the property boundary. And this road that comes down from his house connects to that pedestrian access easement route; and it’s really very well highlighted in Exhibit C-2. IWASHITA: So what you are saying is that the condition should be that this whole area shown on, from the house down to the other graded area, that all of that should be reclaimed? FERNANDEZ: Correct. IWASHITA: And there should be, should there be any kind of pathway within -? FERNANDEZ: I don’t mind if he has a walking pathway down there. IWASHITA: Okay. EXHIBIT B 13 FERNANDEZ: My main thing is for esthetics, right? This is just, this is like strip-mining, right, without reclamation. IWASHITA: So does that mean that, this reclamation in your mind mean that there should be refill that, whatever was graded out here should be put back? FERNANDEZ: I’m not a soils engineer, okay? But my assumption is if this is all a function of money, right – I mean, for these violations, hey, my understanding from the articles that I read, he was fined $400,000, right, the largest fine in County history – so I’m assuming that if it’s a financial situation, there is an ability, money notwithstanding, to fix this. IWASHITA: Well, I’m just trying, when you said reclamation, by using that term, are you saying that the soil that was taken out, or the material that was taken out here, which looks substantial from these pictures, should that be replaced? WATANABE: Mr. Iwashita, maybe I can intervene a bit, if you don’t mind? IWASHITA: Sure. WATANABE: You indicated that you would be happy with a walking trail. I think one of your main concerns was the esthetics as you indicated, so certainly re-vegetated, and by indicating a walking trail, to me that indicates that for this particular access you don’t expect vehicular access, right? FERNANDEZ: No, I -. WATANABE: Just a walking trail re-vegetated with natural vegetation that is common to the area -. FERNANDEZ: Correct. I mean if you -. WATANABE: Is that what you are referring to? FERNANDEZ: Correct. WATANABE: Not so much replacing it to the exact topography that originally existed. FERNANDEZ: Correct. Well, what I’m looking at, again, I’m not trying to drive anybody to bankruptcy. What I’m saying is, if you notice the trees and shrubs that are around this cut, right, if those are replanted in the roadway proper, right, and at least give the look of saying, yeah, it looks like it’s part of the gulch side; right now it looks like a funnel, I mean, it looks like a pipeline that runs through the gulch. WATANABE: Does it kind of answer your question, Mr. Iwashita? I think what he is looking for is restricted access to simply a walking path and certainly re-vegetation of the area. EXHIBIT B 14 IWASHITA: Okay, yeah, because -. WATANABE: Does that kind of satisfy you? IWASHITA: Part of my concern, what I was trying to clarify is at the bottom of this way, right, it basically looks like the material was cut out and then used to create part of that road at the bottom, you know, because of the grade that was there before; it sure looks like, you know, right at the bottom there is about, I don’t know, six, eight, ten feet on the makai side that’s been built up to make this roadway, right? So -. FERNANDEZ: No, no, that’s, I’m very familiar with what happened here, and mainly it was just cuts. There were no fills; he didn’t have to perform any fills. IWASHITA: Okay. It’s just because it looks like there is a big drop-off now on the mauka side to the makai side, right? Okay, so you are saying that was just cut out. And what you want is basically trees planted back in that area. FERNANDEZ: If I can, I’ll try real quick. The road that comes down from his house, when he decided to make the cut directly towards Pahoa Beach, it was just a cliff side, he just made a cut; there were no fills, he went this way, and he zigzagged towards the beach. IWASHITA: Okay, but the last point I wanted to clarify is you want basically trees and other vegetation planted back along this roadway, so that it looks like, put back to what it looked like before. FERNANDEZ: Correct. IWASHITA: Thank you. WATANABE: Okay. Mr. Director, you wanted to make some comments? YUEN: Yes, I just, and I know this can get confusing for the Commission, but I just wanted to clear up one point that the big cut that you see in Exhibit A-2 that leads from the house going down into the gulch is the first violation; we are not dealing with that cut today as part of this permit. Then the part of the picture that goes from the bottom of that big cut to the beach is part of actually both the first violation and the second violation. Okay, is that clear? There was a first violation where he made a cut going down the gulch from where this house is shown and going somewhat in a mauka direction down into the gulch, then in a makai direction to the beach, okay, that was the first cut. And then a second violation is from where these two cuts, if you look at Exhibit B-2, where these two cuts join, and goes up mauka to the cul-de-sac, and there was also some work done at the lower part of this B-2 as a second violation. I just want that to be clear. So the cut on Exhibit B-2, we dealt with as a violation and did not require an after-the-fact permit for that. WATANABE: Okay. But that’s said, Mr. Yuen, is there any way to address Mr. Fernandez’s concern with regard to the area of the first cut within conditions in this SMA such EXHIBIT B 15 that you can restrict access to a pedestrian access and possibly re-vegetate the area. Is there a way to work this out within this SMA, although certainly this SMA does not address that access point? YUEN: I really, you know, I’d have to go look at the record on how we ended up with the first violation, whether we closed that as a violation or not. That’s, I’m sorry, I cannot answer that right now whether we would be acting properly to impose further conditions on the first violation. WATANABE: Thank you. DOMINGO: Mr. Chairman. WATANABE: Yes, Mr. Domingo. DOMINGO: Mr. Yuen, doesn’t this application address all the so-called cuts that have been made by that gulch – one that comes from the house and the one that meets that cut from the house down to the beach up to the cul-de-sac? Aren’t we addressing all of that, because they are all violations? I mean -. YUEN: Well -. DOMINGO: Wait, wait, wait. You know, as designated by the Planning Department through plan approval or anything, the original designated access is within the property far from where the residence is. But they opted on their own to make those cuts along the gulch going down to the beach and then going up to the cul-de-sac. So you know, those are all violations. Are we not going to address that? YUEN: Again, I’d have to look, they are all violations. We dealt with the first violation, and I’d have to look at how that violation was closed. All right? Then we had the second violation, and in order to essentially not, it was clear that we -, you couldn’t correct the violation by restoring the land to its original condition. And rather than simply deal with that as a violation where you pay a fine, you do some remediation, but then you have a road that you can use, we required this proceeding for the second violation to get an after-the-fact permit to allow the road to be used there. So at least as of what you have in front of you now, you have an application for pedestrian use of the road that was cut from the end of the cul-de-sac down to the beach, not for the one that was cut from the house going into the gulch. DOMINGO: Mr. Chairman. WATANABE: Yes, Mr. Domingo. DOMINGO: I am somewhat perplexed because if there has been any violation with the grubbing or landscaping ordinance, the first indication of any remedial action would have been that the property be restored to its original condition, and this has been enforced originally in the past as far as I know. Now, I remember, and this is not a grubbing issue, but I remember some EXHIBIT B 16 years back near Waipio Valley on the cliff, which is about 900 to 1,000 feet in elevation, and where this property was being grubbed and was being cleared of trees and shrubs, the person who was the contractor who was cleaning the area pushed all of the trees and the dirt over the cliff down to the shores by the ocean, which was about 900 to 1,000 feet. What the County did was to have the owner go down and burn all the debris, the shrubs and trees; all that was there was cleared up. They went to that extent.And I know of other situations where grubbing, you know, all that was done, they had to go back and restore the land to its near original condition. Now, as Mr. Fernandez has suggested or is demanding that that property, the portion which was cut, be restored to its original condition. Now, you know, that can be done and should be done. WATANABE: Well -. ALAMEDA: Mr. Chair. WATANABE: Okay, we may be getting ahead of ourselves, Mr. Domingo. I respect your opinion on that, but we may be getting ahead of ourselves. Mr. Alameda. ALAMEDA: Thank you, Mr. Chair. Just to have a more complete record, Mr. Fernandez, I heard two things: I heard, one, that you’d like that cut to kind of resemble more like a path, some kind of walkable path, but I also heard that you want that path to also serve in some cases as an emergency to the, no? WATANABE: No, that’s the second path, though. FERNANDEZ: Two different paths. ALAMEDA: Okay. FERNANDEZ: Two different paths: you have the pedestrian access that comes from the cul-de-sac, which definitely should have emergency vehicle capabilities. The path coming from Mr. Mohammadi’s house onto this pedestrian access should not have any type of vehicle to go on it. ALAMEDA: Okay. So the first cut, the one that you are recommending that we have vehicle access, you want vegetation to be restored in that area as well or no? FERNANDEZ: Yes, to make it look like a path, I mean, it’s not, you know, 21 feet of scarred earth, that there is, you know, let’s say, there is two or three feet of scarred earth and the rest of it is some kind of vegetation whether it’s grass or something. But if you look at the most recent pictures, there is not grass there. ALAMEDA: Okay. So you wanted a, like, kind of path so that a car can go down, though, or a vehicle can go down for emergency. FERNANDEZ: Yeah, or an ambulance, yeah. EXHIBIT B 17 ALAMEDA: Okay, okay, I got it. Got you. WATANABE: Okay. LIM: Mr. Chairman. WATANABE: Yes, Mr. Lim. LIM: Could I -? The reason I’m interrupting, I’m sorry, is I think maybe if we handle Mr. Fernandez’s contested case intervention status first, then I can move onto what I will ask for is a continuance of the hearing because basically what we are faced with now that he is not participating is I do want to, my client’s goal is to wrap up all of these issues at one time. So No. 1, if we have to have the road from the house down to the beach included in the application to resolve all these issues, we are willing to do that. WATANABE: You are willing to work with the Director on that. LIM: Yes. And as you are going through this discussion on what we call renaturalization, you know, there are things like what type of vegetation, where and those types of issues that we want to work with both Mr. Fernandez, whether he is a contested case intervenor or not, and the Planning Director. We also have certain conditions proposed by the Director that we are unable to agree to it at this time because we don’t control certain areas of the road that he wants us to include in the public access grant, and we also have some private contractual agreements that we have to work out before we can make any of these agreements anyway. So that’s why I was going to request a continuance. But I would think we should handle Mr. Fernandez first. WATANABE: I understand. So I appreciate your jumping in. Now, I think the juncture that we are at, Mr. Fernandez, is to determine whether you’re satisfied that your case has been presented within your testimony today to your satisfaction, and whether you have made up your mind as to whether you want to proceed with attempting to gain standing in this contested case hearing, or are you satisfied and you are willing to withdraw your petition for standing. FERNANDEZ: Yeah, I am satisfied that I have had my say, and then I’m willing to withdraw my contested case application. WATANABE: You are satisfied with that. FERNANDEZ: I’m satisfied. WATANABE: Okay. Is that satisfactory for the record, Mr. Torigoe? TORIGOE: Well, yeah, I guess just you can check with the Commissioners to see if anybody has any objection to it withdrawn. If not, then we’ll consider it withdrawn. EXHIBIT B 18 WATANABE: Okay. We are just talking about Mr. Fernandez’s petition for standing being withdrawn. Does any Commissioner have any objection to that? Okay. So then we’ll accept his withdrawal, formal withdrawal. And you’ve already provided your testimony. So you may be seated, Mr. Fernandez. And thank you for your testimony, by the way. Mr. Lim, I also thank you for offering what you had to offer. I take it that you are now formally requesting for continuance, so that all of these issues can be worked out between yourself, possibly Mr. Fernandez as well as the Planning Director? LIM: That’s correct. Even though Mr. Fernandez has withdrawn as a contested case applicant here, if he doesn’t like what happens in the end, he is going to be able to appeal that to the court. So obviously we want to make sure that he is, you know, he is agreeable to whatever we agree to with the Planning Director. WATANABE: And because this might be a little more convoluted, you are not suggesting continuing to any specific date? Continue it to when it’s ready? Is that -? LIM: We’d like to get it done. I think it’s going to be, like I said, we have to work out some private contractual agreements. So if I could say maybe a 60-day or so continuance -. WATANABE: Sixty-day continuance. So two meetings from now is what you are requesting a continuance to? Ms. Bowman, did you have anything to add at this moment? BOWMAN: I just have a comment. Because I do think that the first cut, you know, we can show the direct relationship in this area because of erosion. And I know it’s not rainy, but when we do have big rains, this cut is going to affect, the first violation will affect the second. So I’m hoping that the Department will look at that as an overall, you know, this is not a separate entity. WATANABE: Yeah, actually, Ms. Bowman, the applicant’s representative has represented they want to address that issue as well and to the satisfaction of both Mr. Fernandez as well as the Planning Department. So I think that opens it all up if we provide them with the time. BOWMAN: Okay, thank you. WATANABE: Mr. Yuen. YUEN: Just a couple of things: First, I would not want this continued beyond 60 days. This is something that’s gone on for a very long time, and we really need to close all this up including the question of the violation. Second, on the question of the first cut, Jeff was kind enough to bring me the file on that and point out that we had required as a condition of resolving the violation that they submit an after-the-fact permit application for the first violation as well. EXHIBIT B 19 They submitted an assessment in July 2004, it basically, which could possibly have led to a minor permit – permit that would not come to the Commission because of the cost of the work being less then $125,000. This is standard, though, the first thing you submit is an assessment unless, as in the case of the second violation, we told them that they definitely would have to submit for major; but the normal process is you first submit this assessment. We rejected the assessment and returned it to them on the grounds that being incomplete; there was some information that we didn’t have. We never had a follow-up assessment done for that first violation. WATANABE: Okay, thank you. Mr. Lim, then it sounds to me like the Director is saying no more than 60 days. Are you comfortable with that? LIM: Yes, we are. We want to take care of this. WATANABE: Okay. And so then -. Yes, Mr. Woodward. WOODWARD: Mr. Chairman. I think we made some headway today because everybody seems to be willing to be a bit flexible. It seems that Mr. Fernandez wants to have the esthetics restored and some reasonable prohibitions against vehicular traffic. And Mr. Lim is willing to work with the Planning Department. So I would move that we continue this matter until the – let’s see, it would be – October meeting on -. WATANABE: West Hawaii. WOODWARD: West side, yes. WATANABE: That would be -. BOWMAN: Second. WATANABE: Okay, it’s been moved and seconded. Do we have any discussion on this matter? Mr. Darrow. DARROW: Thank you, Mr. Chairman. The motion before us is to continue this matter until the Kona October Planning Commission hearing. With that, I’ll take the roll call. Commissioner Woodward? WOODWARD: Aye. DARROW: Commissioner Bowman? BOWMAN: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. EXHIBIT B 20 DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: And Mr. Chairman? WATANABE: Aye. DARROW: The motion passes, seven to zero. WATANABE: Okay. It is now, according to my watch, 12:15 -. DARROW: Just for the record -. WATANABE: Yes. DARROW: The meeting may not actually be in Kona, but it will be in West Hawaii. WATANABE: Right, right, West Hawaii, yeah. DARROW: Thank you. The discussion ended at 12:18 p.m. Respectfully submitted, Noriko Sauer, West Hawaii Secretary EXHIBIT B 21