HomeMy WebLinkAbout2005-08-26 SMA 05-004 Tinguely
PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
AUGUST 26, 2005
PHIL TINGUELY (SMA 05-004)
A regularly advertised hearing on the application of was
called to order at 10:09 a.m. in the King Kamehameha's Kona Beach Hotel, Ekahi Ballroom,
75-5660 Palani Road, Kailua-Kona, Hawaii, with Chairman Fred Galdones presiding.
PRESENT:Fred GaldonesABSENT & EXCUSED: C. Kimo Alameda
Hannah SpringerRene Siracusa
Jeffrey McCallRodney H. Watanabe
Andrew Iwashita
AllenSalavea
William R. Graham
Chris Yuen, Deputy Planning Director
Norman Hayashi, Planning Program Manager
Phyllis Fujimoto, Staff Planner
Jeff Darrow, Staff Planner
Ivan Torigoe, Deputy Corporation Counsel
Kiran Emler representing Department of Public Works
And approximately 17 people from the public in attendance.
APPLICANT: PHIL TINGUELY (SMA 05-004)
Application for a Special Management Area Use Permit to allow the construction of two
three-story mixed use buildings, which include eight residential suites, and a two-story
commercial office building on a 3-acre property. The property is located between Kuakini
Highway and Walua Road, approximately 1,500 feet northwest of the Kuakini Highway and
st
Walua Road junction, Waiaha 1
, North Kona, Hawaii, TMK: 7-5-18:95.
GALDONES:Will the Hawaii County Planning Commission be back in order.
Commissioners we are on agenda item number 4. Applicant is Phil Tinguely, SMA 05-004.
This is an application for a special management area use permit to allow the construction of
two, three-story mixed use buildings, which include eight residential suites, and a two-story
commercial office building on a 3-acre property. Jeff?
DARROW:Thank you Mr. Chairman. If I may direct your attention to the location
map on the board. The area of this application is within the north Kona district of Hawaii.
More specifically we are looking at Queen Kaahumanu running across in a north-south
direction across the map. This line identified here in red is Kuakini Highway. The red line
represents the Special Management area. In this particular area is Walua Road where it meets
Kuakini Highway. The area of the application is identified in red. The applicant in this case,
Phil Tinguely is requesting a special management area use permit for two three-story
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commercial office or mixed-use buildings and a two-story commercial building. If I can
direct your attention to the plot plan thats been submitted by the applicant, Walua Road is
identified here in this area and then we have Kuakini Highway on the mauka side. We have
buildings A, B and C identified. Again, A and B are two three-story buildings. They also
include a basement parking area. The first floor of A and B will consist of four commercial
suites. The second story will consist of four residential suites and the third story on A and B
will be two lofts for two of the suites that are located on the second floor of both buildings.
Building number C or correction letter C is a two-story commercial building. Both floors one
and two consist of four commercial suites. There is a 10-foot no vehicular access-planting
screen along the northwestern boundary of Kuakini Highway to prevent access onto Kuakini
Highway. There are 124 parking stalls that are identified on site. Driveway ingress/egress
will be onto Walua Road. Proposed access is in this area and there will be various
landscaping on the property. In the past, weve received several requests for special
management area permits in this same location. If you recall Paul Bleck had submitted two,
theRapozashadsubmittedtwoandwedalsoreceivedaspecialmanagementarearequest
from William Hall. The Planning Department has received several letters of correspondence
previously and those have been submitted to you. One of them was from the- was the
approval letter from the Kailua Village Design Commission, which approved the plan on
August 9, 2005. They recommended a limited approval in concept of the plans for the
proposed project be forwarded to the Planning Director. The- weve also received or weve
put into the record a e-mail that was in response to an e-mail sent to Maryanne Maigret of
Department of Land and Natural Resources from Curtis Tyler thats been made part of the
record. It was ccd to the Planning Department. And that is referencing questions asked by
Mr. Tyler regarding cultural, historical and archaeological issues on the site. Weve also
received a petition for standing in a contested case from Steve Green who represents the- is
the Vice President for the Kona Pacific Association of Apartment Owners. This was a
properly filed application and they are located within 300 feet, in this particular area, just
north of the subject property. And he, Mr. Green has also submitted a letter identifying other
representatives of the Kona Pacific Apartment of Association Owners. That is dated August
nd
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. The Planning Director recommends that the Planning Commission approve this special
management area use permit. Are there any questions?
GALDONES:Commissioners any questions of Jeff? Seeing none. Will the applicant
or his representative please come forward? Gentlemen good morning. Good morning Mr.
Mooers. Could I have you sworn in? Could you please raise your right hand? Do you swear
or affirm to tell the truth on this matter now before the Hawaii County Planning
Commission?
MOOERS:I do.
GALDONES:Could you please state your name and your residence address and Mr.
Mooers maybe you can have the two other gentlemen also do the same. Thank you.
MOOERS:Thank you. My name is Greg Mooers. Im a planning consultant for
TinguelyDevelopment.MyaddressisBox1101inKamuela.
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TINGUELY:My name is Phil Tinguely. Im the President of Tinguely
Development. My address is P.O. Box 9013, Kailua-Kona.
PALMER:Patrick- Im Patrick Palmer. Im the design head for the Tinguely
Development. I live at 75-1027 Ahulani.
GALDONES:Thank you gentlemen. Mr. Mooers have you received a copy of the
background report and also the recommendation and are there any comments to those
documents?
MOOERS:Weve reviewed the background report and recommendations. I
understand that the Director is considering a change to one of the conditions in regarding to
complying with a change of zone ordinance for the Alii Cove project across the street. Thats
condition 4. Im sorry, condition 2. And, wed like to hear what that recommended change to
thatlanguageis.
GALDONES:Okay.AnyothercommentsbeforeIaskfor,openforquestions?
MOOERS:No,wevereadtheconditionsandareinagreement.Wethinkweve
resolved all the issues as far as the archaeology and were very excited about the project. I
think if you look at the color boards we think its going to be a very attractive addition to the
village and Kailua Village Design Commission was in concurrence with that as well.
GALDONES:Thank you. Mr. Yuen are you prepared to address condition number 2?
YUEN:This has to do with the fact that when the Alii Cove rezoning was being
considered, which is directly across the street, makai of Walua Road. The owner of this
property at that time gave representations that they would give up some property, some of
their property along Walua Road so that Walua Road could be widened, in connection with
the construction of Alii Cove. Though the condition as worded makes it sound like this owner
is being required to actually do some of- the SMA, this permit application owner is required
to do some of the work, which is not the intent of that. So, what we would do-. And this isnt
really a new requirement what were doing is just restating something that was as a condition
of this permit that was stated by the prior owner in connection with that Alii Cove rezoning.
And what well say is that the applicant shall comply with the representations made in
connection with rezoning ordinance 03-018. That land will be dedicated for the Walua Road
widening.
GALDONES:Mr. Mooers?
MOOERS:We have no problem with that, that language. For the Commissions
knowledge the road has been improved already, so the physical improvements are there. Its
just a question of doing a consolidation/re-subdivision to make sure that the ownership is
established along the rights of way.
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GALDONES:Thank you. Commissioners are there any questions for Mr. Mooers?
Commissioner Graham?
GRAHAM:Usually when we have contested case request we sort of handle that
before we deal with the substance of the application, are we going to do that now?
GALDONES:We will be doing that before we ask for any public input. I just want to
give the Commissioners the opportunity to have a good idea of what the application is all
about before we go into the, addressing the contested case application.
GRAHAM:Okay. I did have one question in that regard then. Looking at the
white paper we get the background report and on the first couple of pages when it speaks of
the different buildings in the proposed development it always says the structure will be 30 feet
in height. But when I read visual impact analysis that Ron Terry does in the middle of the
documenthesaysthebuildingsare42feetabovegrade.SoImwonderinghowtomake
sense of how big the buildings really are.
MOOERS:Its not uncommon for Dr. Terry to exaggerate the heights of the
buildings but the plans are accurate as far as the 30 feet.
GRAHAM:So the 30 feet means what, the top of the roof of the structure is 30 feet
above the base grade of the structure?
PALMER:It meets the building code requirements of 30 feet, which is to the mid
point of the highest roof.
GRAHAM:So then Dr. Terry could be right if the highest point is considered above
30 feet but the mid-point of the highest roof is not? Is that correct?
PALMER:Thats correct. It is per the building code requirements of 30 feet.
GRAHAM:Thank you.
MOOERS:In this particular case though Dr. Terry did exaggerate that. I think the
tallest point is what 40-?
YUEN:I didnt- that didnt make the record. What did you two just say?
MOOERS:I think, what Im saying is that according to the design team, and I
know that theyve spent a considerable amount of time with planning and public works is that,
that it meets the code. But, what Im saying is that the top point may be 40 feet but the
building height is determined by the code requirements is 30 feet.
PALMER:Its 38 feet, 10 and 1/2 inches.
MOOERS:Okay, the tallest point is 38 feet 10-1/2 inches.
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YUEN:Thats the tallest point above natural grade.
PALMER:That is correct.
YUEN:Okay thank you.
GALDONES:Further questions Commissioners? Seeing none, Commissioners there
is a petition for standing in a contested case hearing. Mr. Mooers could I ask you to vacate
the table? I would like to call on the petitioner. I would like to at this time call upon Steve
Green, Board Vice-President, Kona Pacific AOAO. Mr. Green could you please raise your
right hand? Do you swear or affirm to tell the truth now before the Hawaii County Planning
Commission?
GREEN:I do.
GALDONES:Mr. Green could you please state your name and your residence
address?
GREEN:Steven Green. 75-5865 Walua Road.
GALDONES:Mr. Green you had submitted a petition for standing in a contested case
hearing.CouldyoupleaseelaborateonyourresponseinreferencetoquestionA?
GREEN:FirstofallImustapologize.AndyArchibaldwhoisthelead
representative for the association is not here today. His wife was taken to Oahu for
emergency surgery and Im not as well prepared as he would be to answer your questions.
So, I do apologize for that. So the question again was?
GALDONES:In the petition question A is, is your interest in this matter clearly
distinguishable from that of the general public? It was marked yes and it asked to explain and
it says the Board of Directors of the Kona Pacific AOAO believes our owners will be
adversely impacted by the approval and construction of the property as it is presently planned.
This impact goes beyond that of the general public.
GREEN:Yes, were directly opposite, exactly to explain it. Were just short
down Walua Road from the project within 300 feet. So, any construction in the area affects
us. I dont know if thats a good answer or-.
GALDONES:Okay. Jeff the requirements for the petition has been met?
DARROW:Yes Mr. Chairman.
GALDONES:Commissioners are there any questions of Mr. Green?
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GREEN:Id like to just say if I can that I met Mr. Tinguely today for the first
time and I believe that we are very close to reaching some agreement which would allow us to
drop the contested case hearing. That has not been done at this point. Again, Mr. Archibald
was dealing with this and has informed me that he believes that weare very close to that end.
GALDONES:The Chair would rather see that that process continues to try to mitigate
any concerns that the opposing party has so that it doesnt have to go through a lengthy
hearing, to a contested case hearing all that to delay the project. And, the Chair is at a
quandary, how should we approach this? Perhaps I need some guidance here.
TORIGOE:Mr. Chair you may want to deny or continue this. If you continue it
you dont have to decide standing today.
GALDONES:Commissioners the options that we have here is to grant the petition for
standingandhavethepartiestrytoresolvethisbeforeacontestedhearinghastotakeplace.
In case the parties are not able to resolve it prior to that then the contested case hearing would
proceed if the Commissioners do grant AOAO standing. So we could either continue this or
we proceed and grant standing and the Chair would recommend that we do grant- decide on
the petition for standing. Commissioner Springer.
SPRINGER:In the event that we grant petition for standing and negotiations proceed
but they do not come to an amicable resolution and the application moves forward do they
need to come back before the Planning Commission to enter into the nuts and bolts of the
contested case?
GALDONES:The action that we should take is that it just proceeds into a contested
case hearing if they are not able to resolve it. Commissioner Springer?
SPRINGER:So today we would also take action on whether to outsource or not in
the event that it proceeds?
GALDONES:Yes.
SPRINGER:Thank you.
GALDONES:Further discussion? Are there any further questions of Mr. Green?
Commissioner Salavea?
SALAVEA:Im not sure if this is appropriate to ask of the applicant for contested
standing. Do you have an estimate as how close in terms of time, is this something that can
be worked out while were here or is this something that you think will take more than a week
or so?
GREEN:Uh, no. In an e-mail that I received from Mr. Archibald who again is
doing the negotiations for us he believes that we can have this done next week. Its just a
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matter of him being here to be able to sit down and write something down and get some
signatures.
SALAVEA:Thank you.
GALDONES:Commissioner Iwashita?
IWASHITA:Im prepared to make the motion.
GALDONES:Oh. Commissioner Springer?
SPRINGER:Is it proper to inquire of Mr. Mooers what his preferred course of action
would be to continue or to move on with granting standing in the contested case.
GALDONES:TheChairwillbeproceedinginthatdirection,thankyou.BeforeIdo
that, I would like to ask Counsel to give us a ruling as to what would be considered a
favorable recommendation for a petition.
TORIGOE:Are you basically asking what the standards are for granting standing?
GALDONES:Yes.
TORIGOE:Okay. Your rule 4-7b says upon receipt of a written request to
intervene, the Commission at the first meeting on the matter shall hold a hearing on the
written request if the movant can demonstrate that: 1) his or her interest is clearly
distinguishable from that of the general public; or 2) government agencies whose jurisdiction
includes the land involved in the subject request; or 3) that they have some property interest in
the land or lawfully reside on the land; or 4) that even though they do not have an interest
different than the public generally, that the proposed action will cause them actual or
threatened injury in fact; or 5) persons who are descendants of native Hawaiians who
practiced rights that were customarily and traditionally exercised for subsistence which does
not sound like what the AOAO is claiming here, then they shall be admitted as parties. So
basically were looking for whether the AOAOs interest is clearly distinguishable from that
of the general public you know and I would add in a way that is relevant to an SMA Use
Permit. Whether or whether they have, whether the proposed action will cause an actual or
threatened injury in fact. And then they shall be admitted as parties and the rule again says
the movant needs to demonstrate those things.
GALDONES:Commissioners having heard that are there any further questions of Mr.
Green to clarify your mind?
IWASHITA:Yes.
GALDONES:Commissioner Iwashita?
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IWASHITA:Mr. Green what is the- other than being close to the project what is the
Associations concerns that it believes that its entitled to a contested case hearing?
GREEN:One and the major thing is that we believe that and I know you dont
want to hear about traffic but any development up Walua Road creates a problem for our
residence in that we have no method of egress for people with disabilities to move to Alii
Drive or to get into the Village. We have been working for a long time with several
developers in the area to create such a pedestrian corridor but at this moment we do not have
that. And were looking for any and all help we can get to create that.
IWASHITA:So, Im trying to understand, your interest is that the project may
impede pedestrian access?
GREEN:Well, impact us in that there would-. Currently we have no means, no
methodbywhichwecantakepeoplefromourcomplexinawheelchairandhavethemroll
down the street to get to Walua Road without actually being in the roadway. And, when Alii
Cove came in they created a great big area up Walua Road. Very wide with sidewalks and
everything else so theyve created an area where its very easy for someone with disabilities
to move up and down the road but then they come to our complex and theres zero, nothing,
theres absolutely no sidewalk, no clearance, no way that they can move up and down the
street without actually being in the roadway. So, were saying that more development in the
widened area of Walua Road impacts our section of Walua Road because the only way for
them to go up and down the street is to pass us.
IWASHITA:I-. So maybe Im not understanding the process here but it doesnt
sound to me frankly like the project is creating an additional burden or harm to your project
but its something that might actually benefit your project. Am I wrong?
GREEN:Im not exactly sure how I can see a benefit to our project. Were
talking how many parking spaces are there-, there again? Close to 200?
DARROW:124.
GREEN:124? Maybe Mr. Mooers here could add something to the-, cause I do
believe that were very close to settling this so.
IWASHITA:Okay. Can you address my questions?
MOOERS:Yeah. Just as a matter of history, when the Alii Cove project was
rezoned a contested case had been filed by the same group and at that time Mr. Curt Deweese
of Sunstone Realty partners signed an agreement with them that he would provide safe
pedestrian access in front of their building. When we received the contested case notice I
talked with Mr. Green and I talked to Mr. Archibald and I was assured that they were a one
issue group and that that issue was they wanted safe pedestrian access in front of their
building. Having known that this agreement was in place I called Mr. Deweese whos one of
my clients and I asked him what the progress was on that. And at that time he told me that he
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told me that the plans had been drafted and had been submitted and theyre sitting around in
public works and they havent gotten them out yet and you know thats theproblem. So I
talked with Ki Emler and I talked with Ron Thiel, head of the traffic division in Hilo to find
out where they were. Ki had not seen the plans. I talked with Ron Thiel. Ron said yes, hed
been having conversations with Sunstones engineer a gentleman named Ty Miyabuchi from
Engineering Dynamics. They have agreed to the type of improvement, which will basically
be a paved shoulder and then a curved place between the vehicular and pedestrians along that
shoulder. The plans are being drafted by Mr. Miyabuchi. He thought that he would have
them submitted to the County either today or Monday. So, theres no reluctance on the part
that of Mr. Deweese to comply with that agreement and thats in process. The problem that
weve had right now with the petitioners is that theres no assurances that we can give them
that these things will take place because the agreement is with another developer. Clearly in
my mind the petitioners are adjoining property owners and in most cases will be granted
standing on that basis. The concern I have is that the condition and the issue is not an SMA
issue.Itsaroadwayissue,itsapedestrianaccessissueandIdontbelievethatitsfairto
hold up Mr. Tinguelys project based on the fact that Mr. Deweese is not finished this
roadway improvement. And thats the issue I have and I guess earlier I think Commissioner
Springer asked what my preference would be and I guess my preference would be yes to grant
standing and then to hear the issue now. And the issue is because the only issue apparently is
not an SMA issue and I think the basis in this permit should be decided upon that. Yeah,
thats really our concern. I dont think theres any disagreement among the parties about the
need for this shoulder improvement and that it makes, its better for everybody to have safer
pedestrian access. Were in total agreement. The issue really becomes is what kind of
assurances can we give Mr. Green and his group so that theyll be willing to drop the
contested case and we dont have to hire a hearings officer and we dont have to hire attorneys
and we dont have to go through this protracted arrangement. Our concern about deferrals is
that I know the next agenda item or the next agenda in West Hawaii I think is pretty full.
Weve got a contested case for Parker School and some other things. This project might get
pushed back 60 days on an issue thats not an SMA issue and that I think is totally unfair I
think for Mr. Tinguely. I dont think its fair that his project should be held up because of
lack of assurances from a previous developer. And, I guess whats odd is that that developer
is not shirking that responsibility, hes expended funds to hire the engineer. The engineer has
contacted the County, they have agreed to what the improvements were being, plans are being
drawn and that process is taking place. The problem is, is that the improvement is not on the
ground yet. And you know thats kind of our dilemma is how do we give Mr. Green and the
AOAO confidence that that will take place and allow our project to be evaluated on the SMA
criteria and move forward.
IWASHITA:Mr. Green is that, do you have any understanding based on what Mr.
Mooers said or you have any information contrary to what Mr. Mooers said?
GREEN:Pretty much we are in agreement and thats why Im saying that this
probably is going to go away in a few days anyway. Im just saying that I personally have not
been involved in this enough to be able to present a case here today for it. And I do again
apologize for that.
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GALDONES:Commissioner Salavea?
SALAVEA:So, just to clarify. The issue, the core issue is that of increased traffic
from, generated from this project on Walua Road and its impact on your residence. Or
pedestrian access to Alii Drive without the current or the agreed to road improvements.
Thats the issue.
GREEN:I think thats true. And simply that we are looking to try to improve the
safety of all the residents in the area. Were not just saying we want to get on somebodys
case here, we really want it to be a safer street. And, its more an issue of disabilities, you
know people who cant get up and down the street and thats their only method of getting to
town so-.
SALAVEA:Thank you.
GALDONES:Commissioner Springer?
SPRINGER:I have a question for Mr. Torigoe. You frequently direct our attention
totheTOPLISSDecisionwhenitcomestodecisionmakingonanSMA.Itseemsasthough
this discussion is focusing on traffic issues and Im just wondering if we need to take
TOPLISS into consideration as we consider this petition for standing?
TORIGOE:Yeah, Mr. Chair?
GALDONES:Mr. Torigoe?
TORIGOE:Let me read to you some of the wording from the TOPLISS decision
which as weve noted before is TOPLISS versus the Planning Commission of the County of
Hawaii. Its an intermediate court of appeal Hawaii case. And the court says, if traffic from
a development within an SMA is not shown to have a substantial adverse impact on the
coastal environment such impact as the traffic may otherwise have on the existing roadway
system in the area of the development cannot be the basis for denying an SMA permit
application. So, basically traffic as such is not a relevant factor for an SMA application but if
traffic in some way shows an adverse, you know a substantial adverse impact on the coastal
environment then it can be, it can considered to be relevant to an SMA permit application.
YUEN:I think you were asking the connection between what we can consider
in the permit on the merits versus the question of standing. The Department would
recommend that the Commission vote to grant standing to the Association of Apartment
Owners because they do have an interest that is distinct from that of the general public. It
may be that when we get to the merits of the application that were not able to cure the
problem or cure satisfy what theyre trying to accomplish by asking for intervention and
asking for the request for standing but they do-. Our recommendation would be to grant it
because they do meet the criteria of having an interest that is different from that of the general
public.
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SPRINGER:Thank you, thankyou both.
GALDONES:Commissioner Graham?
GRAHAM:Basically I was going to say essentially what the Planning Director said
but let me just add on that I know some of the Commissioners are newer Commissioners but
at hearings and I can specifically remember a Hilo hearing when we had a request for a
standing in a contested case I remember asking at the time is it appropriate to ask the
applicant the nature of the impacts that hes concerned about and all like that and the answer I
received was essentially no thats not the issue. If the applicant is distinct from the general
public and we find it to be so thats not something we need to deal with at this time. So, in
fairness to this intervenor, potential intervenor, and then to our past policy Id like to sort of
keep that in mind but I also recognize that Mr. Mooers sort of left a question on the table for
us where he really explained well the situation and if the Counsel or the Chairman has any
otherrecommendationsastohowtodealwiththatiftheressomethingwecanbringintothe
mix that would help his concerns Im certainly happy to hear that. But other than that I think
the issue on standing is just one of- condition one in the ones that Mr. Torigoe read.
GALDONES:Commissioner Springer?
SPRINGER:Yes. My question then would be to the representative from the AOAO
group. Having heard the discussion and understanding that there are certain riggers
associated with a contested case hearing, rights and also responsibilities do you stand by your
petition and do you wish us to move forward?
GREEN:Yes I do. Unfortunately once more Im not the best representative of
this because I dont have all the information. Mr. Archibald knows much more about this
than I do and Im simply here to keep things going and its required. So, one more apology.
SPRINGER:Thank you.
GALDONES:Any further questions? Mr. Mooers in reference to the petition do you
have any further comments on that?
MOOERS:No, I think I was clear that we did not object to standing its just that
we request that we look the most expeditious way possible to resolve this because in a way I
think this is an abuse of process because were letting a non-SMA issue delay an SMA permit
through the contested case. Theyve got every right to ask for standing, we dont object to
standing. Im just looking for an expeditious resolution after that point.
GALDONES: Thank you Mr. Mooers. Commissioners seeing no further questions a
motion is in order to either grant or deny the petition for standing. Commissioner Iwashita?
IWASHITA:Thank you Mr. Chair. I move that the petition for standing in a
contested case hearing submitted by Steve Green, Board Vice President, Kona Pacific AOAO
be granted.
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SALAVEA:Second.
GALDONES:It has been moved by Commissioner Iwashita and seconded by
Commissioner Salavea that the petition for standing in a contested case hearing submitted by
Steve Green, Board Vice President, Kona Pacific AOAO be granted. Further discussion?
Seeing none, Jeff?
DARROW:Thank you Mr. Chairman. Commissioner Iwashita?
IWASHITA:Aye.
DARROW:Commissioner Salavea?
SALAVEA:Aye.
DARROW:Commissioner Graham?
GRAHAM:Aye.
DARROW:Commissioner McCall?
MCCALL:Aye.
DARROW:Commissioner Springer?
SPRINGER:Yes.
DARROW:And Mr. Chairman?
GALDONES:Aye.
DARROW:Themotionpasses6to0.
GALDONES:ThankyouJeff.Mr.Greenyouwillbeinformedinwritingoftodays
actions.
GREEN:Thank you.
GALDONES:Commissioners in addressing the question that was raised by Mr.
Mooersaskingforexpeditedactiononthis.AsyouhaveheardbyMr.Greensayingthatheis
not the most knowledgeable individual to address the issues and the questions. We need to
decide if we will be hearing it today as one possibility or we set it up for a hearing and
therefore we decide whether we will be farming out the hearings officer. Question to Mr.
Torigoe. The question the Chair has is having heard what Mr. Green had stated and if the
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Commission decides that it wants toproceed with the hearing today will we be putting
ourselves in a situation that we will not beable to defend?
TORIGOE:Mr. Chair I think it raises an issue you know I dont thinkwe should
discuss on the record the extent to which I think its defensible and its kind of premature for
me to try to give such an opinion but it does raise an issue.
GALDONES:Commissioner Iwashita?
IWASHITA:I guess my inclination is that because the main party thats response-,
that is carrying burden for the association in this matter is not available due to circumstances
beyond his control that the courtesy should be given at least to allow him an opportunity to
address this issue. And since the parties seem to be close to resolving it anyway its the
representation by both the applicants representative and the contestants representative. I
understandtheconcernsaboutthedelaysMr.Mooersbutintermsoftheprocessanddue
process and giving recognition to everyones rights I think that would be the best course and
Id be willing to make a motion when the Chair deems fit to have this matter I guess in my
view set for further hearing before this body and not have to outsource it. But give the
petitioners representative, the primary representative an opportunity to present their case.
GALDONES:Commissioner Iwashita a motion is in order and do you want to
incorporate that into the motion?
IWASHITA:Yes. I move that the Planning Commission continue further hearing on
this matter to a time that Staff can determine is appropriate, the next meeting in Kona for
further hearing.
GALDONES:Commissioner Graham?
GRAHAM:Clarification by further hearing you mean the contested case hearing is
that correct?
IWASHITA:Yes.
GRAHAM:I second.
GALDONES:It has been moved by Commissioner Iwashita and seconded by
Commissioner Graham that the Department set up for a contested case hearing.
Commissioner Springer?
SPRINGER:Would this be at our next Kona meeting?
HAYASHI:Our next meeting is not in Kona, its going to be in South Kona at the
Hapuna Prince Hotel. We couldnt get facilities in Kona that day.
SPRINGER:So our next West Hawaii meeting is there room on the docket for this?
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th
HAYASHI:We can always fit something on. That will be on September 30 and
rd
not on the 23 as originally scheduled.
GREEN:As the petitioner we would not be averse to having the meeting
anywhere on the island if that helps.
GALDONES:Clarification. Commissioner Iwashita so your motion is to have the
Commissioners hear this contested case hearing?
th
IWASHITA:Yes. Now at the, given Mr. Hayashis comments at the September 30
meeting of the Commission at the Hapuna Prince Hotel.
GALDONES:Commissioner McCall?
MCCALL:Yeah if at the next West Hawaii meeting the Commission hears the
contested case hearing and makes a decision on that will we also be making a decision on the
SMA application at the same time? They would go together naturally? Okay. Thank you.
GALDONES:Seeing no further discussion. I would like to call-. We have one-. Mr.
Tyler who had signed up to speak so I would like to give him an opportunity before we go
into decision making to speak on this matter. Mr. Tyler? So Mr. Green and Mr. Mooers if
you could allow Mr. Tyler to be seated? Thank you.
Do you swear or affirm to tell the truth on this matter now before the Hawaii County
Planning Commission?
TYLER:I do.
GALDONES:Mr. Tyler could you please state your name and your residence address
andyoumaybeginyourtestimony.
TYLER:GoodmorningMr.Chairman,membersoftheHawaiiCounty
Planning Commission and staff. My name is Curtis Tyler. My mailing address is 73-1305
Hiolani Street, Kailua-Kona, 96740-9344. Mr. Chairman not to be disrespectful by any
means but you do have a motion on the floor. I dont know. Are you going to dispense with
that before I testify or is that something youre going to take care of afterwards?
GALDONES:Ill be taking care of that afterwards. Were in discussion now so-.
TYLER:That was the decision-making you were referring to?
GALDONES:Yes.
TYLER:Okay thank you. Lady and Gentlemen, Im here this morning to report
to you that I have read the background report and the recommendations and I thank the staff
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for providing those to mein a timelyfashion. I also am here to indicate my general support
for this project although I do have some concerns that I want to discuss with you this
morning. The reason I am in general support of this is I think the concept-. Well first of all I
believe its consistent with the general plan and other plans established by the County of
Hawaii relating to land use development in this area. I think its also consistent with what
were seeing happening there and the concept that Mr. Tinguely has proposed on behalf of his
owner the LLC is a very interesting one, which I think we need more of. And that is for
people to be able to live where they work so that we dont further exacerbate the traffic
problems every time we want to go to work. And so I thank him for that concept and wish
him success in that kind of thing. I think there are individuals who and perhaps others who
live here who would want to take advantage of such an opportunity. My main appearance
before you today is as a recognized descendant of persons who inhabited this area. And Im
recognized by the State Historic Preservation Division and with respect to- and was
recognized, excuse me, with respect to the project immediately makai of this Alii Cove
project.Inwhichprojecttherewerenumerousburialsfound.Someofthemwerepreviously
known and others unfortunately were inadvertent which created some very difficult situations.
I dont anticipate that were going to have that situation here as burials have been identified
on this property. I dont know if you have that information. But, the previous owner of this
project came to me and talked to me about the burials there and what I thought to be done
when that owner was proposing a much larger type of development; really a hotel. So this is a
significant improvement. In any case, I would like to see a condition or conditions put on the
property that no ground disturbance of any kind would take place until such time as the
cultural, the valued cultural resources which are on this property. In particular Iwi Kupuna
and related resources have been protected. There have been instances in the past where
cultural resources in this area have been destroyed. In fact while data recovery was going on.
And I dont anticipate this will happen but I would like to see a condition. Condition 9, which
I believe, is a condition that Im speaking to says that in effect, final plan approval and any
issuance of land alteration permits will not be granted until such time as the mitigation plans
are finalized for these sites. And as part of those mitigation plans I just want to be sure that
the archaeological area that you see on the map is properly protected from any possible
incursion by ground disturbance machinery. I have- and I might add here that Mr. Tinguely
and I did have a discussion, I also spoke with Mr. Mooers about this. We did have a
discussion and Ive known Mr. Tinguely for a while as well as Mr. Mooers and I want the
record to reflect that Im not coming here today because I sense that something is going to
happen to those Iwi Kupuna or not. I think there has been a combination of issues that have
led us to this point in which point the issue is not resolved. And it needs to be resolved and I
believe it will be resolved. I believe it is in the process of being resolved by the State Historic
Preservation Division. And I also want to indicate that this is not to imply that Mr. Tinguely
or any of his associates in any way dropped the ball because I dont believe they did. And nor
do I believe they will. But I want the record to reflect this because we, this Commission and
many previous Commissions as well as other public agencies have seen time and time again
where valued cultural resources were not properly evaluated, were not properly protected and
therefore were either significantly damaged or completely lost. And I dont want to see that
happen in this area. I have no plans obviously, since you dont have them before you, to file
for a contested case although Im sure I would be granted standing. Thats not my objective.
My objective is to look forward and to make sure that what is pono is done here. I have 2
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other minor points that I wanted to- well 3 actually, I wanted to make here. And that is there
was some discussion about the impact on the viewplane. Ibelieve that Commissioner
Graham asked a question and I was confused by the same 45 foot depiction in the viewplane
analysis. And if I think I understood it correctly from Mr. Palmer who said it was
approximately 38 plus feet and when queried by the Director from the existing grade and I
just want to be sure that thats what I heard. May I look over and see if Mr. Palmer is nodding
his head? Hes nodding his head so; I just want to be sure of that. And that is a significant
difference as Im sure everyone knows from 45 feet. And this is because its medium density
not high density its limited to 30 feet. So, there is really quite a nice view from Kuakini.
The second item Id like to address is landscaping. And I would like to ask that and as I did
speak with Mr. Mooers and Mr. Tinguely about utilizing native, where possible, endemic
plants in this area. I have also talked to Mr. Deweese about this and youve heard me say this
numerous times before, when Ive come before you. We really need to encourage people to-
and developers, applicants to do this so that these plants will get off our endangered list and
becomemorecommon.Theleast,themostobviousofwhichisourstateflower,knownby
some as a yellow hibiscus, but its not the yellow hibiscus that you usually see. It is the ma'o
hau hele and it is endangered, it is endemic and it is beautiful and you want to encourage it.
The final concern or final point I wanted to discuss with you here was a continuation of the
mauka-makai access which was begun over the sewer line, water line easement right of way
on Mr. Deweeses property. And which I would like to see continue up to Kuakini. There are
many people that reside mauka of Kuakini or directly off of Kuakini, obviously Walua Road
as well who Im sure would like the opportunity to be able to walk to Waiaha Beach, to the
Waiaha Beach area. Which is coming into the public domain again fortunately and this
easement, public easement there, actually offers a wonderful opportunity and Mr. Deweese
and his associates felt so. And, I spoke with Mr. Tinguely prior to the meeting and he seemed
to think so. He wanted to be sure that this wasnt a 24-7 access and I want to say personally
that and I dont purport to represent the public cause Im not an elected official anymore, Im
just an individual but from a landowner perspective I would say that this should not be a 24-7
access. It should be a daylight access, sunrise to sunset type thing so that those persons who
are interested to go to the beach or return from the beach after surfing or enjoying some time
at the beach would be able to utilize this and not have to get in their car and further exacerbate
our traffic problem here. And I know traffics not a concern but this is just something in
terms of what would be good for not only for the present generations but the future
generations. And, Mr. Chairman if I could just ask a question, did I understand you to say
that, since I havent gotten a copy of it that the KVDC gave a limited approval? Did I hear
th
that? And if so, what does that mean? I wasnt able to go to their meeting on the 9
and I
thought I heard there was limited approval I didnt know what that meant.
MOOERS:Approval of concept.
TYLER:Oh okay approval in concept. All right thank you very much. I believe.
I have some other issues which are more generic issues that I- concerning the process and the
identification and consideration of valued resources. And I will not take your time today on
these but I will be communicating directly with the Director about this matter. Because as
youfolksknowmostofyouanyway,youpassedsomeverysubstantialamendmentsin
January of this year to your Rule 9, your SMA Rule 9 and I congratulate you and those and
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obviously the Director was involved in this and Mr. Torigoe, in incorporating consideration of
valued resources. Its very important and I think its a very proactive move that will allow the
kinds of-, excuse me, that will bring best efforts forward to preclude the kinds of problems
that we have had relating to, in the past, relating to valued resources, in particular burials.
And so I think, I congratulate you Mr. Chairman, members of the Commission and others
involved for your foresight in addressing the Kapaa Kai decision as well as other legal
precedence to make it better for everybody including the applicant. Thank you very much.
GALDONES:Thank you Mr. Tyler. Commissioners any questions? Commissioner
Springer?
SPRINGER:Thank you. Mr. Tyler are you suggesting that condition number 9
needs to be strengthened or are you just drawing our attention to it?
TYLER:Uh,both.Imnotsureifitneedstobestrengthened,Ithinkitdoes
because I want to be sure that there is no disturbance regardless of whether final plan approval
is granted or not. Until such time as the valued resources have been properly identified and
protected. Well, theyve been properly identified, to be protected in accordance with
approvals from SHPD.
SPRINGER:And if, may I continue?
GALDONES:Sure.
SPRINGER:Then also, I think you correctly note that there is no landscaping
condition and often times thats a standard condition. And, with regard to the mauka-makai
access are you suggesting that that should be a condition?
TYLER:I am if it is the desire of the Commission I think its always nice to
commit these things to writing so that theres no confusion later on when the division or
department or agency that has the kuliana to carry, to see that its carried out, is done.
SPRINGER:Thank you. Mr. Chair, may I ask the Directors response to these
concerns raised by Mr. Tyler?
GALDONES:Mr. Yuen?
SPRINGER:We have the strengthening of condition number 9. Youve heard his
concerns Mr. Yuen do you feel that condition number 9 needs to be strengthened?
YUEN:The requirement of a preservation plan and a burial treatment plan
would-. I think what we have is a burial site that was discovered and is being now preserved
and there is an interim buffer set and then theyll be- apparently the final buffer has been
proposed by the applicant but has not been approved SHPD yet. But if this went forward with
the present condition Im sure it would require a marking of the buffer before any grading and
grubbing occurred on the site. That would be the normal kind of condition that would go
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along, although itdoesnt specifically say that in so many words, that thats what would
normally be required here.
SPRINGER:With regard to the concern of landscaping. I dont see, often times
theres that landscaping condition and I dont see that here.
YUEN:We- there is a landscaping, it simply says landscaping in accordance
with rule 17, which is the overall landscaping rule.
SPRINGER:What? Oh I see and thats in condition number 4? Thank you and this
mauka-makai access that Mr. Tyler has brought to our attention, do you have any comments
on that?
YUEN:I dont know anything about it, is that part of the conditions?
DARROW:Uh, this is an identified sewer easement that Mr. Tyler is referring to
andapparentlyAliiCovehadusedthatsameeasementasamauka-makaiifImnotmistaken.
YUEN:Wecouldputthatinasaconditioniftheapplicantdoesntmind.We
didnt really look at this as- we didnt look at public access in connection with this property
being that its not shoreline at all. And so, but its a good idea, its a nice idea for people to be
able to walk down from Kuakini. Is it formally a condition of Alii Cove that they have the
sewer line easement through there as a public access? Do you know?
TYLER:Is that directed to me or?
YUEN:Is it required of Alii Cove or is just something that theyre doing?
TYLER:I cant tell you whether its a condition of their rezoning or not. I know
that Mr. Deweese agreed to this. We had discussion with it- about it a the Council as well as
at the committee level and I know that Mr. Emler spoke to me about it this morning saying
that he had some questions and wanted me to know. He wanted to know what the intent was.
YUEN:Yes.
TYLER:So, as I began my comments today I said that I thought it would be
better or to answer one of the questions, to commit these things to writing so that the
appropriate agencies have a clear understanding. And I want to make it clear that I dont see
this as a 24-7. Again make it clear. Because it will be some responsibility falling on the
landowner and I dont want it to be, to have security there all night long.
GALDONES:Commissioner Springer?
SPRINGER:Mr. Chair Im wondering if this-, were not going to be making a
decision on this application and the conditions of it at this time so is this something that might
be researched for our next hearing of the matter.
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YUEN:We can look at this and at, and specifically also at the archaeology. I
think that we can. I understand better now from the e-mail that came in from SHPD what
needs to happen so we can refine that condition a little bit.
GALDONES:Commissioners is there any further question of Mr. Tyler?
SPRINGER:No thank you.
TYLER:Mr. Chairman may I just make one final comment.
GALDONES:Proceed.
TYLER:In light of my discussions with and I havent seen the e-mail that came
from Ms. McCrae, Mrs. McCrae. But she did tell me in response to my concerns, excuse me
to my questions that were, apparently you have copies of that, that no, that SHPD would not
sign off on any grubbing or grading permits until such time as they were satisfied that the
applicant had met all of the necessary approvals and, for the protection. I wanted to let you
knowthat.And,Ijustwanttobesurethathercommentaboutthatissomehowincorporated
in your actions so that it doesnt fall between the cracks. Ive seen it happen too many times
thank you.
GALDONES:Thank you. If theres no further questions of Mr. Tyler? Thank you
very much Mr. Tyler.
Commissioners back on the motion. Are there any further questions on the motion? If none,
Jeff on the motion.
DARROW:Thank you Mr. Chairman. Commissioner Iwashita?
IWASHITA:Aye.
DARROW:Commissioner Graham?
GRAHAM:Aye.
DARROW:Commissioner McCall?
MCCALL:Aye.
DARROW:Commissioner Salavea?
SALAVEA:Aye.
DARROW:Commissioner Springer?
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SPRINGER:Yes.
DARROW:And Mr. Chairman?
GALDONES:Aye.
DARROW:The motion passes 6 to 0.
GALDONES:Thank you Jeff. Mr. Mooers you will be informed in writing of todays
actions.
This discussion ended at 11:00 a.m.
Respectfully submitted,
LynetteSanemitsu,WestHawaiiSecretary
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