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HomeMy WebLinkAbout2007-08-31 TKOHALA LLC PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT AUGUST 31, 2007 A regularly advertised hearing on the applications of Initiator PLANNING DIRECTOR and Applicant KOHALA LLC (REZ 866/SMA 379)was called to order at 12 noon 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 Christopher Yuen, Planning Director And 4 people from the public in attendance. INITIATOR: PLANNING DIRECTOR a. Change of Zone (REZ 07-000067) for 37.88 acres of land from a Single-Family Residential 15,000-square foot (RS-15) to a Residential and Agricultural 5-acre (RA-5a) district. b. Repeal of Ordinance No. 97 102 which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. c. Revocation of Special Management Area (SMA) Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved, owned by Kohala LLC, is located along the southwest (makai) side of st Akoni Pule Highway and the Kohala Ranch Subdivision, Kahua 1, North Kohala, Hawaii, TMK: 5-9-1:8. APPLICANT: KOHALA LLC (REZ 866/SMA 379) a. Amendment to Condition C (time to secure final subdivision approval) of Change of Zone Ordinance No. 97 102, which rezoned 37.88 acres of land from an Agricultural 5-acre (A-5a) to a Single-Family Residential 15,000-square foot (RS-15) district. b. Amendment to Condition 4 (time to secure final subdivision approval) Special Management Area Use Permit No. 379, which allowed the development of a 50-lot single-family residential subdivision. The property involved is located along the southwest (makai) side of Akoni Pule Highway and st the Kohala Ranch Subdivision, Kahua 1, North Kohala, Hawaii, TMK: 5-9-1:8. EXHIBIT D 1 GRAHAM: Our next item of business which I believe in the last Commission hearing when I was not here involved both Items 4 and 5, Unfinished Business. Four is initiated by the Planning Director. Five is by Applicant Kohala LLC. It relates to a Change of Zone and a Special Management Area Permit; and this is in the, just below the Kohala Ranch Subdivision in Kahua 1, North Kohala. And I think the Planning Department is going to put up some maps at this time and we’ll just wait a few minutes till they’re ready to go. Basically the Applicant Kohala LLC is asking for an amendment to a Change of Zone Ordinance as well as to an SMA Permit. And the amendments would allow additional time to meet the requirements. The Planning Director’s initiation is to change the zone on that land, and also to repeal a Special Management Area Use Permit, and repeal the ordinance which originally set the zoning on that land. DARROW: We’re ready to go? GRAHAM: Jeff, go ahead. DARROW: Thank you. I’ll just make this brief. I’ll just do a brief presentation. The location of this application is within the North Kohala District of Hawaii, more specifically we’re looking near Kawaihae area. This would be Kawaihae in this area. Just for reference, this is the Kohala Ranch Subdivision area. The white line running in a north-south direction on the bottom of the map is the Akoni Pule Highway. And the area of the application is identified with a blue dot. There are two applications that we are combining together. These have to do with Change of Zone 97 102, which is a Rezone 866, and Special Management Area Use Permit No. 379. The Planning Director is recommending that Special Management Area Use Permit No. 379 be revoked. It was originally approved to allow a 50-lot subdivision on this property. Additionally, the Planning Director is initiating downzoning of the property from Single Family Residential 15,000 square feet to Residential-Agricultural 5 acres; and this is for approximately 38 acres of this area. Originally the property was rezoned from Agricultural 5 acres to Single Family Residential 15,000 square feet and, again, allowed -. The Special Management Area Use Permit was approved to allow a 50-lot subdivision. The applicant, apparently the property was sold in between this time. The applicant, nobody had requested a time extension for the Change of Zone as well as for the SMA Permit, and so ten years after-the-fact of the original approvals there is a request now for a time extension to Condition C of the Change of Zone as well as to Condition 4 of the SMA Use Permit. At our last hearing the parties involved had gone into deliberations regarding this matter and th there has been a letter submitted by the applicant dated August 7 requesting a continuance of this hearing until the October meeting in Kona, because of the fact that he is requesting for certain Planning Department records to subpoena. It is my understanding today that we do have somebody signed up to testify, but there has been a request from the applicant to continue both these matters until our October meeting. EXHIBIT D 2 GRAHAM: Thank you, Jeff. Any questions of Jeff from the Commissioners? Maybe we can take our public testimony right now then. Ms. Byrne, would you come forward. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? BYRNE: I do. GRAHAM: Thank you. And go ahead with your testimony and start with your name and address, please. BYRNE: Sure. My name is Gail Byrne, address is 68-3551 Awamoa Place, Waikoloa, Kohala; and I’m here delivering testimony from five North Kohala non-profits and the organizations and together our membership represents about 400 families in North Kohala. And we’re here to support the Planning Director’s recommendation to repeal the Ordinance 97 102 and revoke the Special Management Area Permit No. 379. We are also urging the Planning Commission and the Planning Director to consider the more restrictive zoning which would be consistent with what the community has asked for for over 30 years. And I have copies of a letter signed from the five organizations here enough for each -. I don’t know how we, what’s the appropriate way to deliver this? It’s kind of summarizing some of the points I wanted to hit today. I think there’s nine in there. And then there’s a second batch here. This summarizes, the second batch summarizes the 30 years worth of, documented work that the community has done to preserve the area makai of Akoni Pule Highway in open space and their continuing desire to do so. So, again, we’re here to affirm and support the Planning Director’s recommendations and ask for zoning in that area of at least RA 20 if it’s possible. Again, it’s consistent with what the community has asked for for 30 years in previous General Plan reviews and planning documents, multiple resolutions. During the last General Plan review petitions were submitted to the County requesting the County to zone this area Open.And some of this stuff I have in the box. I was going to thump down, about 2,000 signatures asking for this area to be in Open or Conservation. There’s another 6,000 signatures here that requested the County to put a building moratorium on this area or the whole coast makai of Akoni Pule Highway, including this parcel. So there’s a long history of community support planning documents for more restrictive zoning. And you guys are aware that this year the County Council passed a rezoning moratorium for North Kohala that specifically states there will be no rezoning into districts smaller than Ag-20a. I understand that might not be quite applicable to this particular situation; but that moratorium is different than the moratorium that was developed for Kona or South Kohala, and specifically with regard to the wording around Ag 20-a because it reflects the community’s conversations with their Council Member for better protections specifically along the coast. Some of you may be aware that recent water quality surveys, and some of them hit the front page of a paper just a few weeks ago showing that the reefs in this area or the marine environment being heavily impacted already by upslope development. And additional development of any kind only contribute to this problem, especially because development on this parcel borders the ocean. My background is in civil engineering and I spent eight years working on development EXHIBIT D 3 land use issues and best management practices around development and looking at what we could do to mitigate these kinds of effects. And I’m here to tell you in my professional experience you can’t over time. There are cumulative impacts. And the Water Quality Study completed in 2006 by professors at the University of Hawaii Hilo strongly criticized the degradation of water quality occurring along the Kohala Coast as a result of increased development. There’s also spotty data in there. You know, we mentioned in our testimony that, you know, under the Clean Water Act the County has an obligation to ensure that any pollution resulting from development is not overwhelming the environment’s ability to assimilate that pollution. And if that’s not done, the County and the State will be held accountable; and usually you have to go back and go through a much more expensive process of retrofitting and trying to fix a problem which is almost always very difficult or impossible to do. So we have an opportunity right here now to act proactively and prevent a lot of costly clean-up. And we’ve already got a problem. It’s right here. We’ve seen it in the papers. I think specifically with respect to the criteria that you guys have to look at on whether you can grant these time extensions, my understanding is that the applicant does not meet the criteria for a time extension. You know it’s not, this project is not at all consistent with the General Plans that have been developed; and it’s certainly not consistent with the outputs of the North Kohala Community Development Process. It’s on-going right now. It’s part of the General Plan. The highest, over and over what that community has voiced is keep those areas open to the extent possible from any development. You know, there has been plenty of time to ask for an extension. It has been expired for five years, is my understanding. And, you know, the original conditions and contexts have changed under which this original permit was granted. We are now seeing the cumulative effects of development around here. We now understand better some of these impacts. And so the conditions and context in which the original permit were granted have changed. So I don’t think the applicant meets the criteria for a time extension in any regard. So that was the testimony provided by the groups. I just want to say a few personal roads, words. I’ve a Masters Degree in Civil Engineering and so I love concrete in certain types of developments, I really do. And I actually invest in some real estate but not in sensitive areas. And I also know there are no guarantees in any kind of investment; and I don’t expect the taxpayers to bail me out when I make a bad decision or I don’t follow-through when I need to. So that’s just my, that’s my own personal testimony there. So, again, you know, the folks in North Kohala really appreciate what the Planning Director is recommending here and thank the Planning Commission for your time. GRAHAM: Thank you, Ms. Byrne. Do we have some questions from any of the Commissioners? In regard to what you said, I might ask Mr. Yuen if we do take this matter up at a future hearing - apparently the State and perhaps the Federal government also has been really studying this whole sedimentation area from Honokua Gulch going north along the coastline - Could you at the Planning Department look to see if there’s any reports on what’s going on there, EXHIBIT D 4 and what has caused it, and, you know, what’s recommended so that we could have that as part of our folder for dealing with this application at the next hearing if we do? YUEN: We can certainly try, we’ll get you what’s available. GRAHAM: Thank you. YUEN: There were some, there were a couple initial investigations and then there has been some follow-up that’s not actually, I think, in the form of a report. I did attend the meeting and have had some discussions with people about the major runoff incident earlier this year. GRAHAM: Thank you. Thank you, Ms. Byrne. Would the applicant come forward at this time. Mr. Lim, do you swear or affirm to tell the truth on this matter today before the Hawaii County Planning Commission? LIM: I do. GRAHAM: Thank you. And could you give your name and address and then carry forward with your testimony. LIM: Steven Lim representing Kohala, LLC, PO Box 121, Hilo, 96721. Mr. Chairman and Members of the Commission, we had half a hearing the last time. We’ve, I think, requested some additional time to both get some of the documentation that we had subpoenaed from the Planning Department and also to engage in further discussions with the Planning Department on this matter. And as a result of that, I think we’ve submitted a stipulation to continue the August 31, 2007, hearing. We last sent it to the Corporation Counsel’s office and I’m assuming it was forwarded here. GRAHAM: Jeff? DARROW: The continuance letter till October, correct? LIM: Right, right. We had executed a stipulation to continue to the Planning Commission’s meeting in West Hawaii on October 19, 2007, subject to continuance to a later date in West Hawaii by agreement of the parties and approval by the Planning Commission. So that’s what the last thing that we sent in to the County, yesterday, I believe it was. GRAHAM: Thank you, Mr. Lim. So your request at this time is that Planning Commission continue this matter? LIM: That’s correct. GRAHAM: To the October hearing? LIM: That is correct. GRAHAM: All right. Commissioner Watanabe? EXHIBIT D 5 th WATANABE: I’ll move to continue to the October 19 meeting of 2007. GRAHAM: Is there a second? ALAMEDA: Second. GRAHAM: All right. Seconded by Commissioner Alameda. Mr. Yuen, since the Planning Director is involved in Item No. 4, I guess, on this one, are we looking to continue both of these items or -? I imagine Mr. Lim only speaks for the Kohala LLC application. YUEN: They should be dealt with at the same time. So we agree. It’s not a big rush. There’s nothing happening on the property, so we agree that both Numbers 4 and 5 should be continued to October. GRAHAM: Thank you. And, Mr. Torigoe, are there any legal considerations we should be aware of? TORIGOE: No. Basically the deadlines will not start running until, as long as there’s an agreement the deadlines will be okay, I think. GRAHAM: Thank you. Any questions, any further questions of Mr. Lim or any comment by the Commissioners? We do have a motion right now before us. IWASHITA: I just -. GRAHAM: Yes, Commissioner Iwashita. IWASHITA: We’re treating this as a contested case kind of scenario? GRAHAM: I don’t think it’s specific that we’re treating it. This is whenever there’s a decision by this body I think the legal ramifications are such that it is as if it were a contested case hearing. IWASHITA: So, I’m just concerned that we meet all the procedural requirements, - since we’re not hearing it all at once and the Commissioners present might be different, you know, in October than present today - whether or not we need to address any procedural requirements. GRAHAM: So would you like me to query Mr. Torigoe, I guess, of any further -. IWASHITA: Yes. GRAHAM: Any further procedural considerations? TORIGOE: I believe that after the last hearing between Mr. Lim and the Director we had an agreement that, and I assume that the question is really aimed primarily at HRS 91-11 matters about having a proposal for a decision in front of the Commissioners before the decision EXHIBIT D 6 is made. I think there was an understanding that the, let’s see, the Planning Director had submitted his recommendations and that would be sufficient -- but correct me if I’m wrong, I think if you can just straighten that out -- and that there would not be a requirement of further filings beyond those which we’ve already talked about, that is that the parties will be filing findings of fact and conclusions of law and being able to respond. So, and I think there’s a stipulation regarding submittal of those findings and conclusions that was submitted and it was th dated, looks like, received August 16 in the Planning Department. GRAHAM: Okay. All right. Mr. Lim, are you in conformance with all what you hear? LIM: That’s correct. We submitted a stipulation regarding submittal of proposed findings of fact, conclusions of law and decision and order which was signed by the thth attorney for the Planning Director on August 15 and by myself on August, I think it’s 10 or th 16, I can’t tell which one. But basically that conforms with what Mr. Torigoe has represented in that the Chapter 91-11. Section 91-11 proposed findings would be, we would consider the Planning Director’s background and recommendation as being the Planning Director’s proposed decision. And then we would have an extension of the deadline within which to submit any other findings of fact which would probably be primarily the applicant’s from August 17, 2007 to not later than 20 calendar days prior to the final action by the Planning Commission on this matter. And that’s all laid out in the stipulation. GRAHAM: Okay. Thank you, Mr. Lim. IWASHITA: Mr. Chair? GRAHAM: Yes, Commissioner Iwashita? IWASHITA: Just thinking about it, the way the deadline is worded I guess I’m a little concerned is, how we’re doing ahead of time when the final action by this body is going to be and if we use that, you know, to measure the time back -? LIM: Typically what we’re expecting was, you know, we don’t know how long the hearing is going to last in between the final action. And I think that we were trying to estimate out that it usually takes the Planning Staff, they usually start setting up the agenda at least 30 days ahead of time, so we would know what the date would be. th IWASHITA: Oh, so we’re continuing this to October 17. Does that now mean that th the, I believe that’s the date, so it’s September 27 or something like that? Is that -? LIM: Well, we’re expecting that we’re going to have some discussions with the Planning Director on this matter. So it may be that it gets continued further; and that’s why the stipulation has that additional, you know, continuance. GRAHAM: Just to try to be clear on this – then if I’m hearing right then we’re sort of assuming at this point that when you refer to the final decision tentatively we’re talking about the October meeting but that we’re not cementing it to that at this point because there will be further discussions between you and the Planning Director, is that correct? EXHIBIT D 7 LIM: That is correct. GRAHAM: Thank you. thth IWASHITA: So for the moment it is the 27 or 20 days before the 17. That’s, okay. GRAHAM: Okay? So if we’re all clear, I think we could have Jeff take the vote on our motion before us, which is to continue the hearing. And this is Items 4 and 5, Jeff? DARROW: This is Items 4 and 5. What I’ll be doing, we actually have five voting sheets for this. So if it’s okay if we can do one vote, and I’ll do all the votes on all five of them. We have two for the SMA, we have one for the Planning Director’s initiated rezoning and two for the rezoning. GRAHAM: Okay. So my understanding is both the applicant and the Planning Director are supportive of this continuation and that Jeff plans to take five votes for one. If there’s any Commissioner who would prefer otherwise, would you please indicate so at this time. All right. Thank you, Jeff, go ahead. DARROW: Sorry to, I need to get the Commissioners who -. WATANABE: Yeah, I’ll take it as a friendly amendment for the five. DARROW: Okay. And also the Commissioner who seconded the -. GRAHAM: Yes. Commissioner Alameda, are you, I believe you seconded -. ALAMEDA: Yes to your request. GRAHAM: Yes. DARROW: Okay. Thank you. Okay, with that I’ll take the roll. The motion before th us is to continue both Agenda Items 4 and 5 until our October 19 Kona meeting. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Rho? EXHIBIT D 8 RHO: Aye. DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: And Mr. Chairman? GRAHAM: Aye. DARROW: The motion passes six to zero. GRAHAM: All right. Thank you, Mr. Lim. LIM: Thank you very much. The discussion ended at 12:22 p.m. Respectfully submitted, Sharon M. Nomura, East Hawaii Secretary A T T E S T: Noriko Sauer, West Hawaii Secretary EXHIBIT D 9