HomeMy WebLinkAbout2007-08-31 TIBBETSON
PLANNING COMMISSION
COUNTY OF HAWAII
HEARING TRANSCRIPT
AUGUST 31, 2007
DANIEL IBBETSON (SPP 05-000015)
A regularly advertised hearing on the application of
was called to order at 9:11 a.m. at the King Kamehameha's Kona Beach Hotel, 75-5660 Palani
Road, Kailua-Kona, Hawaii, with Chairman William Graham presiding.
PRESENT: William Graham ABSENT & EXCUSED: Takashi Domingo
C. Kimo Alameda Shelly Ogata
Andrew Iwashita Rene’ Siracusa
Alvin Rho
Rodney Watanabe
Rell Woodward
Ivan Torigoe, Deputy Corporation Counsel
Norman Hayashi, Planning Program Manager
Phyllis Fujimoto, Staff Planner
Jeff Darrow, Staff Planner
Daniel Ibbetson, Applicant
Dennis Krueger representing Applicant
Dean Kaiawe, Intervenor
Michael Matsukawa representing Intervenor
Christopher Yuen, Planning Director from 9:35 a.m.
And 17 people from the public in attendance.
APPLICANT: DANIEL IBBETSON (SPP 05-000015)
Action on the application for a Special Permit to operate a 2-unit bed and breakfast establishment
on 0.722 acre of land situated within the State Land Use Agricultural district. The property is
located along the west (makai) side of the Mamalahoa Highway (Highway 11), approximately
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120 feet south of the Kaohe Road-Mamalahoa Highway intersection, Kaohe 5, South Kona,
Hawaii, TMK: 8-7-9: 14.
GRAHAM: The first item on our agenda today under Unfinished Business is an
application for a Special Permit. The applicant is Daniel Ibbetson. The permit is to operate a
2-unit bed and breakfast establishment in the State Land Use Agricultural district. It’s on the
makai side of the Mamalahoa Highway just south of the Kaohe Road-Mamalahoa Highway in
South Kona. This is an item that has been before us a number of times in the last couple of
years. I’ll turn it over to Jeff for the Planning Department’s presentation.
DARROW: Thank you, Mr. Chairman. Good morning, Mr. Chairman and Members of
the Planning Commission. If I can direct your attention to the location map just for a brief
orientation. The application before us is located within the South Kona District of Hawaii. More
specifically, we’re looking at the Kona Paradise Subdivision identified in this area. We have
EXHIBIT A
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Mamalahoa Highway running through the middle of the map in a north-south direction. The area
of the application is identified in the blue dot. Looking at the submitted site plan from the
applicant, Daniel Ibbetson, the request originally was for a two-bedroom bed and breakfast
operation on .722 acre of land.
Again, we have Mamalahoa Highway identified at the top of the map. We have the driveway
access from the Highway; and then we have the identified layout of the bed and breakfast
operation with the two bedrooms identified in colors.
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This is a continued hearing. At our May 24, well, let me go back a little. On our January 20,
2006 meeting the Planning Commission had voted to deny the application. The applicant had
appealed the decision to the Third Circuit Court and the Third Circuit Court reversed the
decision and remanded it back to the Planning Commission for further proceedings. At our
May 24, 2007 meeting the applicant, intervenor and Planning Department agreed to submit
proposed findings of fact, and conclusions of law, as well as exceptions, to the Planning
Commission. Each one of those has been submitted and received and passed out to the
Commission. We’ve received findings of fact, conclusions of law, as well as exceptions from
each of the parties. At our last meeting, the applicant had requested a continuance for medical
reasons. Are there any questions?
GRAHAM: Commissioners, any questions for Jeff? All right, thank you, Jeff. At this
point I’d like to ask Mr. Torigoe if he would just give us a few words on the procedure we
should follow today and what we’re trying to accomplish today.
TORIGOE: Thank you, Mr. Chairman. Basically as Jeff said you have before you
proposed Findings and Conclusion and a Decision, forms of that from each of the parties. And
so you basically at this point, you can allow the parties to give whatever final argument and you
can ask whatever final questions you want of them; and then proceed into making a decision.
You may adopt any one of the proposed Findings or Conclusions as it is written or you may
modify them as you see fit, add conditions or add other findings or conclusions; and basically
vote to make a decision at this point.
I’d also note that Planning Director is not here yet. And as this is a formal contested case the
Planning Director is a party, so technically we ought to wait until the Planning Director is here to
proceed with the actual argument and decision making. But if there’s any public testimony on
this matter, you can take it up at this point.
GRAHAM: Thank you, Mr. Torigoe. Noriko, do you know if we have any public
testifiers signed up?
SAUER: None.
GRAHAM: We don’t have any. Could I ask the Commissioners at this time whether
you would like to go into our decision making or whether you would like to have some final
arguments from the parties?
WATANABE: I believe it would -.
EXHIBIT A
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GRAHAM: Yes, Commissioner Watanabe.
WATANABE: I believe it would be appropriate for us to, and I guess we’re going to have
to ask the applicants if we can change the order. Is that how it works since Mr. Yuen is not here
yet?
GRAHAM: I think we’re going to wait for Mr. Yuen. But I want to just get the sense
of the Planning Commissioners right now if we want to have any final argument, presentation by
the different parties. Cause Mr. Torigoe indicated that’s sort of up to our discretion. Is there -?
WATANABE: No, I’m thinking we may as well wait for Mr. Yuen so he can, since he’s a
party in all of this, that way he can hear their final arguments and comment. Otherwise, we’d be
playing catch-up.
GRAHAM: So your sense is that you would like to have us hear final arguments from
the parties and all, is that true?
WATANABE: Yeah.
GRAHAM: Okay. We just heard from the Planning Director. He’ll be here about
9:25, so that’s almost 10 minutes from now. I guess we can just wait. And Mr. Torigoe also
suggested that I could call the parties forward and we could see if you have any other procedural
issues first that we wanted to deal with. But why don’t we just wait for Mr. Yuen. Okay, so I’ll
adjourn for a few minutes.
RECESSED The Chair called a recess at 9:17 a.m.
RECONVENED The meeting reconvened at 9:35 a.m.
GRAHAM: Planning Commission will come back into session. We’re dealing with the
first item on our agenda. Special Permit application, applicant is Daniel Ibbetson, and this was a
contested case hearing. And we have the parties before us now on the table; and first I wanted to
inquire of the three parties if there are any procedural issues that we didn’t address. Our sense at
this point is we will take a final argument from each of the parties, and then we’ll go into our
deliberations on our decision. So if I could start with Mr. Ibbetson and his counsel. Do you
folks have any, first, any procedural issues that you’d like to bring up on what we’re planning to
do?
KRUEGER: No, I think the way the Chair indicated you wanted to proceed previously
is fine with me.
GRAHAM: Thank you. Mr. Matsukawa?
MATSUKAWA: No.
GRAHAM: Thank you. And Mr. Yuen, do you have any questions or consideration
about what we’re planning to do?
EXHIBIT A
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YUEN: No.
GRAHAM: Thank you. Okay, thank you. So can I swear you all in, I guess, all five
of you at this time. Do you swear or affirm to tell the truth on this matter today before the
Hawaii County Planning Commission?
MATSUKAWA: Yes.
KRUEGER: I do.
IBBETSON: I do.
KAIAWE: I do.
YUEN: I do.
GRAHAM: Thank you. So protocol is to generally begin with the applicant. So
Mr. Krueger if you want to begin and give your name and address first.
KRUEGER: Certainly. My nald hr Cdmmhr Jqtdfdq- Hll an attorney for Daniel
Haadsrnm vgnlr `krn oqdrdms gdre today. My address is 75-5722 Kuakini Highway, Suite 208,
Kailua-Kona 96740.
GRAHAM: Go ahead with any final argument xntlc khjd sn l`jd nm sghr l`ssdq-
KRUEGER: Thank you, Mr. Chairman. Mr. Chairman and Members of the
Bnllhrrhnm+ H chcmls qd`kkx bnld oqdo`qdc sn l`ke a final argument today. I think the facts
`qd e`hqkx vdkk jmnvm sn sgd Bnllhrrhnm- H cnmls v`ms sn adk`anq `mx onhms- H sghmj sgdxlud
all been gone into great depth in the past. Just very briefly, I believe this is a very simple
application. My client has a home in South Kona. It has three bedrooms. He lives in one and
wants to use the other two for a bed and breakfast facility. The Court on remand basically
indicated that the Commission should be looking at the Single family use that can currently be
made of the property, and to determine whether or not the proposed bed and breakfast use
would create a, in essence, a worse situation for the surrounding neighborhood and for other
o`qshdr vgn khud md`qax Lq- Haadsrnm- @mc H cnmls adkhdud sgdqdlr `mxsghmf in the record that
would reflect that allowing a bed and breakfast use there would create a worse situation than an
existing Single family use in terms of the actual use of the property. Mr. Ibbetson has agreed
to the conditions that were imposed by the County, has agreed to abide by those conditions to
ameliorate any kind of problems that might exist or come up in the future. And I think at this
point we would just ask the Commission for your approval of that particular application.
Thank you.
GRAHAM: Thank you, Mr. Krueger. Do we have any questions from
Commissioners? All right, thank you. Mr. Matsukawa.
MATSUKAWA: Thank you. May I stand?
EXHIBIT A
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GRAHAM: Excuse me?
MATSUKAWA: May I stand?
GRAHAM: You may. And please start with your name and address if you would.
MATSUKAWA: Thank you. My name is Mike Matsukawa. My address is 75-5751
Jt`jhmh Ghfgv`x- Hll `ssnqmdx for Mr. Dean Kaiawe, the intervdmnq vgnlr `krn oqdrdms-
For those of you who were with us at the beginning of this proceeding, there was an original
skirmish of some sorts over what is the Commirrhnmlr itqhrchbshnm- In other words, was it
within your responsibility as Commissioners to look at the deed restriction of the 1915 deed?
A decision was made that you would, although I believe your agency is competent to look at
all legal issues. A decision without objection from the parties was to allow that legal question
of what can and cannot be done on the premises be separated from this application and be left
to the Circuit Court for determination. The case proceeded, therefore, on the basis that
assumption must be made that sgd gntrd sg`slr mnv sgdqd v`r validly put there, because the
issue of use was bifurcated out of this proceeding and sent to the Circuit Court. As things have
turned out there is a Circuit Court case now pending that was not pending at the time the
application first came in. So in our proposed findings we point out that as a result there is a
possibility now that if you grant the permit application the Circuit Court could say in the
separate Circuit Court action, whhbg vdlud kds+ vdkk+ lnudc enqv`qd, could decide that the use
is illegal, it goes beyond the restriction that the deed covenant put on the use of the land. So
the question like we put out in our proposed findings is that is this reasonable for the Planning
Commission to, in essence, if you grant the application knowing th`s sgdqdlr ` onssibility that
the Circuit Court might say, well, thank you but this use is prohibited -. You did not want to
address this issue and you allowed that issue of use to come to the Circuit Court. So if that
scenario were to happen based on the Plannimf Chqdbsnqlr qdbnlldmc`shnmr+ xntlqd fnhmf sn
give Mr. Ibbetson an unconditionak odqlhs- Mnsghmf+ sgdqdlr no condition being proposed that
says if the application were granted it would be subject to whatever the Circuit Court might
rule as far as the issue of use and the deed covenant. So what happens then? Our argument is
in this scenario it would be unreasonable to grant an application under those circumstances.
Thank you.
GRAHAM: Thank you, Mr. Matsukawa. Do we have any questions from the
Commissioners? All right, thank you. Mr. Yuen, please, name and address first.
XTDM9 Xdr+ Hll Bgqhr Xtdm, Planning Director, 101 Pauahi Street, Suite 3.
First I want to apologize to the Planning Commission, staff, and the public for being so late
this morning. Our position is that the Planning Commission should grant the special permit
with the conditions attached to the findings of fact, conclusions of law, and Decision and
Order. This is simply a special permit for a bed and breakfast. The impacts are not
significantly different than that of a Single family home. The bed and breakfast with the
conditions presented can be operatec hm ` v`x sg`slr bnmrhrsdms vith the presence of the graves
on the easement on the property.
EXHIBIT A
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Just briefly to talk about Mr. L`srtj`v`lr rs`sdldmsr+ he sgd Sgird Circuit Court says that the
deed restrictions essentially prohibited what happened, the transfer of the property and the use
of the property as a home, or if the Third Circuit Court says that a bed and breakfast cannot be
operated on the property because of the deed restrictions, then the applicant, Mr. Ibbetson, will
not be able to operate a bed and breakfast, regardless of whether the Commission has granted a
special permit. The Court says xnt b`mls+ sgd Bntqs r`xr b`mls cn hs+ sgdm xnt vnmls ad `akd sn
do it. So there is no need for the Commission to take any special action in this regard. The
Court had said that the question of what the deed, what the restrictions of the deed are, are not
an issue before the Planning Collhrrhnm+ sgdxlqd `m hrrtd adenqd the Court; and the Court will
deal with that.
GRAHAM: Thank you, Mr. Yuen. Any questions from the Commissioners?
IWASHITA: Mr. Chair?
GRAHAM: Yes, Commissioner Iwashita.
IWASHITA: So should we make that a condition to the permit?
XTDM9 Vdkk+ H cnmls sghmj hslr mdbdrr`qx- Sgd o`rties are bound to follow
whatever ruling the Court makes.
GRAHAM: Go ahead, Commissioner Iwashita.
IWASHITA: Well, my follow-up question would be, I guess would be for
Mr. Krueger.
GRAHAM: Go ahead.
IWASHITA: I guess, you know, frankly I agree with Mr. Matsukawa in terms of
procedurally how this case has proceeded and, you know, frankly I think that this Commission
can properly consider restrictions on use, private restrictions on use of property in deciding
whether or not, you know, any request such as in this case, the special use permit, should be
granted and -.
JQTDFDQ9 Hll rnqqx+ b`m nq b`mmns> H chcmls gd`q- Chc xnt r`x sgdx ,>
IWASHITA: That we can.
JQTDFDQ9 B`mls>
IWASHITA: You know, if a private party comes to us and says we ought to approve a
use that by agreement, right, or by deed restriction, and in this case, the party is not allowed to
cn nm sgd oqnodqsx+ H sghmj sg`s sg`slr rnldsghmf that we ought to consider in whether or not we
rgntkc fq`ms hs- Vdlqd ` fnudqmldms agency that, you know, has authority in this case to grant
a special use, you know within the circumstances, generally. So, and the way this case has
EXHIBIT A
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proceeded that issue, the issue of whether or not the deed restriction in this case does allow or
cndrmls `kknv sgd trd sg`slr ading requested has been bifurcated, separated, and by agreement
of the parties. Right? So I want to make it clear on the record that that is the agreement.
Okay? Can you state that then please?
KRUEGER: Certainly. Yes, there was never any agreement on our part to bifurcate
any issue with regard to use. I believe it was the position of the Commission that the
Commission does not interpret private covenants and never has; and that if there was a desire
on the part of Mr. Kaiawe to address that issue that he would need to bring that up in a
separate forum.
My question or my concern with what Mr. Matsukawa is asking the Commission to do is that
none of you have any idea what is before the Third Circuit Court or how it got there, and no
hcd` ne vg`s gdlr `rjhmf sgd Sghqc Bhqbths Bntqt to do, or what Mr. Ibbetson is asking the
Third Circuit Court to do. You have no idea of what is likely to be an outcome of that
khshf`shnm: `mc xds xntlqd adhmf asked to delay a decision on a permit which meets all of the
criteria for the issuance of a special permit based on something that you have no knowledge
`ants: `mc H cnmls jmnv gnv xnt b`m cn sg`s- @mc just for the benefit of the Commission, the
action that was filed in the Third Circuit Court was field by Mr. Ibbetson; and it was filed on
the basis of a temporary restraining order. And there was an action that was filed as a counter
bk`hl ax Lq- J`h`vd sg`s q`hrdc nsgdq hrrtdr- Rn sg`slr gnv hs
IWASHITA: So I guess my, let me get it he H l`x+ Lq- Bg`hq> Hll rnqqx-
GRAHAM: Yes, go ahead.
IWASHITA: So my understanding right now based upon what you just stated,
Mr. Krueger, is that as far as procedure, where we are now, xntq onrhshnm hr sg`s sg`slr `
cdbhrhnm sgd Bnllhrrhnm l`cd+ `mc hslr mns ax `fqeement of the parties. And that, and so
what is the -? I guess my conbdqm hr sg`s he sg`slr+ hr sg`s position one that later you might
argue in front of the Court, that if this Commission grants the special use permit that that
somehow supports your position in the other case? Is that a possible argument that you would
make?
JQTDFDQ9 H cnmls adkhdud hslr ` onrrhakd `qftldms- H cnmls sghmj Hlud dudq q`hrdc
that other argument in the other action. Amc H `fqdd vhsg sgd Ok`mmhmf Bnllhrrhnmdq+ Hll
sorry, the Planning Director, that if the Court was to somehow decide that a single family use
by Mr. Ibbetson on the property was not allowed and that for some reason he had to either stop
using it as a single family residence or move it off the property, gd bdqs`hmkx bntkcmls bnmctbs `
bed and breakfast, you know, at that site. And if he continued to do so, I think there would be
action in the Third Circuit Court to prohibit him from doing it; and there would probably also
be action by the County on its own to revoke the permit.
IWASHITA: So -. Can I follow-up again?
EXHIBIT A
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GRAHAM: Commissioner Iwashita, sure. We cn g`ud ` knmf `fdmc` sgntfg rn kdslr
try to be concise.
IWASHITA: I understand. I just, you know, given the procedural history of this case
and this case coming back to us nmbd vdlud `kqd`cx l`cd ` cdbhrhon, I want to try and make a
clear enough record that I feel colenqs`akd hm sgd cdbhrhnm sg`slr made today. So is there any
naidbshnm nm sgd `ookhb`mslr o`qs sgdm sg`s sgd+ nq, back up. The deed with the restriction is part
of the record in this case before us, is that correct?
KRUEGER: The deed that has a restriction in it was before this Commission; and it
was something that was argued before this Commission in the contested case hearing, yes.
IWASHTIA: Right, so it is part of the rdbnqc sg`s vdlqd bnmrhcdqhmf hm cdbhchmf
today?
KRUEGER: It is part of the record, it is something that the Circuit Court indicated
should not be considered by this Commission in determining whether or not to issue a bed and
breakfast permit. But it was before this Commission in the original contested case hearing.
IWASHITA: Okay, maybe I misunderstand then. I thought the basis of the reversal
was that we somehow improperkx bnmrhcdqdc Lq- Haadsrnmlr credibility as far as his
proceeding and how he got the odqlhs `mc sg`s sg`slr mns ,-
JQTDFDQ9 Mn+ H cnmls adkhdud sg`s ,-
FQ@G@L9 Bnllhrrhnmdq Hv`rghs`+ H cnmls sghmk that was the issue. Mr. Torigoe,
do you want to explain briefly what sgd Bntqslr qdl`mc was based upon?
SNQHFND9 Vdkk+ Hlkk sqx qd`k pthbjkx+ `mc H think you should probably let the parties
also respond to that. But both of those issues, I think, were dealt with by the Court in some
way. That is the Court did seem to indicate that we should not consider, you know, allegations
of character or, you know, failure to disclose things on Mr. Haadsrnmlr o`qs- @krn+ sgd Bntqs
noted that the essential character of the subject property is really residential and was
established prior to the application being filed.
GRAHAM: Thank you.
IWASHITA: But the specific -?
GRAHAM: Commissioner Iwashita.
IWASHITA: Was there direction from the Court that we cannot consider the
restriction in the deed?
WOODWARD: If I, Mr. Chairman?
EXHIBIT A
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GRAHAM: Go ahead.
WOODWARD: If I might reply to Commissioneq Hv`rghs`- Hlud qd`c nudq sghr Bntqs
decision several times. And let me just go over a couple of things, The undisputed facts, these
are in the Third Circuit Court, Judge Strancdlr cdbhrhnm Cdbdladq 11+ 1//5+ nSgd tmchrotsdc
facts are that Mr. Ibbetson applied for and was granted building permits for the home and
swimming pool on the subject property consistent with the requirements of law. Thus, the
kdrrdmsh`k bg`q`bsdql ne sgd rtaidbs oqnodqsx v`r established prior to Mr- Haadsrnmlr `ookhb`shnm
enq ` Rodbh`k Odqlhstvhsgnts `mx qdftk`shnmr+ Mr. Ibbetson could put the property to the
following uses: crop production, fertilizer yards using only manure and soil, for commercial
uses, group living facilities, livestock production, telecommunicashnm `msdmm`rths hr bkd`q eqnl
these Findings of Fact that the presence of the atqh`k rhsdr nm sgdtoqnodqty is what drove the
Ok`mmhmf Bnllhrrhnmlr cdsdqlhm`shnm ne sgd kdrrdmsh`k bg`q`bsdristics of the land and the
oqdrdms trd ne sgd oqnodqsx-l Sghr cdsdqlhmation appears to have been made without
consideration of the current residential nature of sgd oqnodqsx cdqhudc eqnl Lq- Haadsrnmlr
construction of his home and associated structtqdr nm sgd oqnodqsxtLq- Haadsrnmlr cddc cndr
not contain a use restriction. It reserves rights of third persons to enter the property to visit
certain identified gravesites on the property. There is an absence of evidence of any intent to
maintain the character of the property as a cemetery. Thus, thd Ok`mmhmf Bnllhrrhnmlr
reliance on an undetermined legal hrrtd i ` bg`q`bsdqhy`shnm ne sgd oqnodqsx `r ` kbdldsdqx trdl
after conveyance to Mr. Haadsrnm i `mc hsr chrqdf`qc ne sgd current residential character and
use of the property were `kk bkd`qkx dqqnmdntr-o
GRAHAM: Thank you, Commissioner Woodward. Hlc khjd sn lnud enqv`qc+ he vd
could. Commissioner Iwashita, do you have on the record everything you felt was essential
that we get?
IWASHITA: Well, from what Commissioner Woodward just read, itlr bkd`q sg`s sgd
Court has stated that this issue of use restricshnm hr mns qdrnkudc- @mc hslr bkd`q nm sgd qdbnqc
then that, or maybe not, I guess -. Mr. Matsukawa has stated that one of the issues, in the
pending civil action, is a request that the Court make a determination as to whether or not the,
or to define that, what the restriction means. And so is that true or not true, Mr. Krueger?
KRUEGER: That is one of the issues, yes.
IWASHITA: And is one other possible outcomes of the Third Circuit Court case then
that the Court might determine that the bed and breakfast use is not allowed by the use
restriction?
JQTDFDQ9 H cnmls adkhdud sgdqdls any request before the Court to address an issue of
bed and breakfast permits since none exists. The issue before the Court has to do with the
nature of the deed restrictions. I domls jmnv he sg`s `mrvdqr xntq ptdrshnm-
WATANABE: Okay, Mr. Chair?
GRAHAM: Yes, Commissioner Watanabe.
EXHIBIT A
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V@S@M@AD9 Hlc khjd sn bghld hm- H sghmj vd can go on and on with this. And, you
jmnv+ Lq- J`h`vd+ H sghmj xnt+ hslr oqdssx nauhntr sg`s Hll rxlo`sgdshb sn xntq onrhshnm `r H
was the person being, the Commissioner that made the original motion to deny the special
request, I mean, this special permit. But that I said, I think the Commission kind of went out
on a limb and gave you your best shot at it. You had your shot at the Third Circuit Court.
And, you know, although I still in some way feel that maybe the system is failing you because
of the way the land was transferred, etc. I still think, you know, my personal opinion is we
gave you your best shot and any further posturing by the Commission is going to amount to
like a public subsidy of a private legal battle; and I hope you understand that although I
dlo`sghyd vhsg xntq onrhshnm+ Hll fnhmf sn g`ud to vote to approve the special permit.
Because generally we would do that in, under ordinary circumstances where is no cemetery,
yeah. Like I said, you know, I empathize with your position; but to me I think that the
Commission gave you your best shot.
GRAHAM: Thank you, Commissioner Watanabe. I think we can keep some of our
bnlldms`qx nm gnv ntq unshmf fndr enq vgdm vdlqe actually doing voting, if we could. I had
nmd k`rs ptdrshnm Hlc khjd sn `rj Lq- Jqtdfdq itrs before we go into dealing with taking action
here, is that when I looked at the three proposed findings of fact, etc. I noticed that the
`ookhb`mslr `mc sgd Bntmsxlr vdqd very close together. Are there any issues that you see that
are different between your Findings and the Countxlr Ehmchmfr sg`s vd should be made aware
of before we deal with the three possibilities that you think are consequential that you want to
be sure to note as far as the difference between yours and the Bntmsxlr `r rtffdrsdc>
KRUEGER: No.
GRAHAM: Thank you. Okay, can we do that then, close the final arguments and go
forward to our deliberations and our vote on this matter? Fine.
V@S@M@AD9 Hlkk lnud sg`s vd bknrd sgd gd`qhmf-
GRAHAM: Commissioner Watanabe, pardon?
V@S@M@AD9 Hlkk lnud sg`s vd bknrd sgd gd`qhmf-
GRAHAM: Thank you.
WOODWARD: Second.
GRAHAM: Thank you. All in favor aye please.
COMMISSIONERS: Aye.
FQ@G@L9 Noonrd> Sg`mj xnt- Rn vdlkk have the public hearing closed now and
vdlkk fn hmsn ntq `bshnm- H sghmj Hll nodm enr a motion, if anyone would like to make a
motion.
EXHIBIT A
10
ALAMEDA: Mr. Chair?
GRAHAM: Commissioner Alameda.
ALAMEDA: Not a motion, just a question. So just could you layout what will happen
hm sgd etstqd he vd cnmls bnld sn bnmrdmrtr nq vd cnmls fds sgd ehud>
FQ@G@L9 L`xad Hlkk o`rr sg`s sn Lq- Snqhfnd
TORIGOE: Well, let me just check, go back to Rule 6. Okay, at this point I think
we’re saying we’re closing the hearing today. Rule 6-7 says within thirty days after the close of
the hearing or within a longer period as may be agreed to by the petitioner, the Commission
shall: For a Special Permit involving less than fifteen acres, such as this, approve it by stating
the reasons and attaching appropriate performance conditions; or deny it by stating the reasons.
So you basically have 30 days after the close of the hearing or within a longer period as may be
agreed to by the petitioner to make a decision.
GRAHAM: Thank you, Mr. Torigoe. Commissioner Woodward?
WOODWARD: Yeah, I would move that we approve Special Permit 05-000015.
GRAHAM: I think as a part of your motion we have proposed findings of fact,
conclusions of law, and decision of order and we sort of need to make them a part of our decision
here today. So we have one from the Planning Director, one from the applicant, and one from
the intervenor. Is there one of those three that you would like to incorporate in your motion as
what you’re proposing -.
WOODWARD: I would say based on the recommendations, findings of fact from the
Planning Commissioner.
GRAHAM: From the Planning Director?
WATANABE: Planning Director.
WOODWARD: Planning Director, yes.
WATANABE: I’ll second.
GRAHAM: All right, thank you. Seconded by Commissioner Watanabe.
TORIGOE: There are -.
GRAHAM: Excuse me. Mr. Torigoe?
TORIGOE: Thank you, Mr. Chairman. In looking at that particular draft, there are a
couple of things that I’d suggest. No. 1, on page 4 at the end of the first or second line, it says
“limited warrant deed” and that probably should be “warranty deed;” that’s just a typographical
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matter. Page 6, Item 22, it says “there were no objections raised,” I think it should say “by any
of the surrounding property owners;” again, just a grammatical thing. And there were a couple
of technical matters that I would insert in almost any proposed Findings; and I gave some text to
Mr. Darrow. Maybe he could read that out.
WOODWARD: I would amend that to as corrected by Mr. Torigoe.
GRAHAM: Thank you. Mr. Darrow, you want to go ahead?
DARROW: Sure. If I could just ask Mr. Torigoe, the first change is on page 4, which
item?
TORIGOE: On page 4, item, it’s actually end of Item 6 where it says “limited warrant
deed.”
DARROW: Okay. Thank you. The inclusion would be, the last findings of fact would
be as follows: The Planning Commission has considered all proposed findings of facts offered
by each party. The intent of all proposed findings consistent with the findings herein are
incorporated herein with the specific language herein to govern. All proposed findings
inconsistent with or contrary to the findings herein are rejected.” And then also a Conclusion of
Law will be added that says “Based on the foregoing findings and conclusions, the proposed use
is an unusual and reasonable use under HRS 205-6.”
GRAHAM: Is that acceptable, Commissioner Woodward?
WOODWARD: Absolutely.
WATANABE: I -.
GRAHAM: Mr. Watanabe.
WATANABE: I accept it as a friendly -.
GRAHAM: Thank you. I had one other objection to the proposed Findings that struck
me that I might just bring it to your attention to see how you feel about that. It’s No. 9, under the
conclusions of law, says “The proposed bed and breakfast use will have no greater impact on the
property than the underlying single family dwelling which currently occupies the property.” I
think that’s totally unnecessary to say it. I don’t tend to believe it’s true and certainly feel that
it’s not substantiated by anything we’ve had before us. So I would like to just omit that No. 9, if
that’s okay.
WOODWARD: It’s all right with me.
GRAHAM: Thank you. Commissioner Watanabe?
WATANABE: Yeah, that’s fine with me.
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GRAHAM: Thank you. All right, Commissioner Iwashita. We’ll have any discussion
on the motion before us.
IWASHITA: On the motion, yeah. I speak in opposition to the motion. Since the Third
Circuit Court decision reversing this, our prior decision, expressly recognizes that the issue of the
use restriction in the deed is still to be determined and there is, the parties in their final argument
have confirmed that there is a pending case to resolve that issue, it’s my view, you know, it’s
consistent to me that what the Third Circuit Court said was that the granting of the building
permit and the establishment of the residence established the residential use of the property. And
so that should be a given. That residential use of the property, in my view if we’re not being
consistent with one interpretation of the deed restriction which basically says that the
conveyance of the property to the predecessor in interest of the applicant was for cemetery
purposes, you can’t have a caretaker home, somebody who cares for the cemetery. That’s a
residential use of the property. Okay? So, you know, it’s not inconsistent to me that
Mr. Ibbetson can continue to reside on the property, basically as a caretaker, nominally, and that
the Court can enforce that restriction of the use of the property as a cemetery. Those are not
inconsistent uses. And so because that issue to me is outstanding, to me it’s not incumbent upon
us to accept the argument that because residential use is allowed that it’s reasonable to extend it
to a bed and breakfast. That is not a logical sequence in my mind. And because it’s admitted on
the record that there’s a pending case to determine the extent of use of the property it’s not, for
me, appropriate for this body to grant this application.
GRAHAM: Thank you, Commissioner Iwashita. Any other comments from Planning
Commissioners? Yes, Commissioner Woodward.
WOODWARD: Well, I think it, as, Commissioner (sic) Yuen said, this really, if it wasn’t
for this question of graves on the property would have been a very simple issue. There’s no
reason not to grant a special permit. There’s no other reason, period. And we’ve been told by
the Third Circuit Court that we don’t have authority in that area. It says here “While the
Planning Commission candidly admitted that it lacked authority to determine the legal effect of
the language of 1915 deed,” etc., etc., etc. That’s not part of our purview. And any further legal
action is purely speculative. You know, we can’t delay an action based on something that might
happen five years down the road.It might not happen at all. There’s no good reason for us and,
in fact, no legal reason for us to deny this application.
GRAHAM: Thank you, Commissioner Woodward. Any other comments before we do
a vote? Commissioner Iwashita, you have something further?
IWASHITA: Yes, just one. I’m not saying, I’m not of the mind that this body is going
to decide the extent or limitations of the use restriction in the 1915 deed. Right? And I wholely
agree that the parties ought to resolve that. I’m fine with the parties resolving that with Judge
Strance and/or the Supreme Court. However far they want to take it, you know, in the private
litigation matter, that’s fine. What I’m saying is that given the lack of resolution of that issue,
you know, and the timing of that, that’s for the parties to deal with. That’s not our concern.
How long, if they want to, you know, expedite and push the Court for a decision and resolve it,
that’s for the parties and the judicial system to do. That’s not our concern. Our concern is the
proper use of this land; and to me it is proper for this body to consider that the Court may very
well say you can’t do a bed and breakfast. What the heck then are we doing approving one?
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WATANABE: Mr. Chair? Mr. Chair?
GRAHAM: Yes, Commissioner Watanabe.
WATANABE: I think this argument can go on for quite a while; and it’s my
understanding that special permits can be granted and special permits can be revoked. So with
that, rather than continue this discussion I would prefer that we call for the vote.
GRAHAM: Anything further from Commissioners?
IWASHITA: I second the motion.
GRAHAM: Well, I don’t think he made a motion. I think we can just go ahead for the
vote here since everyone has spoken. Mr. Darrow, would you care to do a roll call vote?
DARROW: Sure. Just for clarification, the Commissioner who seconded the vote
was?
GRAHAM: Commissioner Watanabe.
DARROW: Watanabe. Okay, the motion before us is to approve the County of
Hawaii’s submitted findings of fact, conclusions of law and Decision and Order with the
following inclusions: The findings of, an additional findings of fact as read earlier, as well as an
additional conclusion of law as read earlier. And on page 4 we will be adding the word, or the
letter “y” to “warranty deed” on findings of fact No. 6. On Page 6 we will be adding the word
“by” on findings of fact No. 22. And, lastly, we will be omitting Conclusion of Law No. 9 on
page 12. Does that sound correct?
GRAHAM: Sounds correct.
DARROW: The motion before us is to approve. With that I’ll take the roll call.
Commissioner Woodward?
WOODWARD: Aye.
DARROW: Commissioner Watanabe?
WATANABE: Aye.
DARROW: Commissioner Alameda?
ALAMEDA: No.
DARROW: Commissioner Iwashita?
IWASHITA: No.
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DARROW: Commissioner Rho?
RHO: Aye.
DARROW: And Mr. Chairman?
GRAHAM: Aye.
DARROW: The motion does not pass four to two.
GRAHAM: Thank you. Mr. Torigoe, then from here?
TORIGOE: Right. Then as I said you have, according to your rules, another 30 days.
Can this matter come up on the next Kona agenda -?
GRAHAM: All right.
TORIGOE: Within 30 days?
GRAHAM: Jeff, would you know the, at our next scheduled whether we’ll make it
within 30 days?
st
DARROW: The next Kona meeting will be scheduled for September 21 and we will
place it on the agenda.
GRAHAM: Thank you very much. So, thank you all today for your participation and
we’ll see you again.
The discussion ended at 10:09 a.m.
Respectfully submitted,
Sharon M. Nomura, Secretary
A T T E S T:
Noriko Sauer, West Hawaii Secretary
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