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HomeMy WebLinkAbout2006-09-07 Troblee PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT SEPTEMBER 7, 2006 PAT FAY & MARY ROBLEE A regularly advertised hearing on the application of (SPP 06-000032) was called to order at 10:08 a.m.in the County of Hawaii, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman C. Kimo Alameda presiding. PRESENT:C. Kimo AlamedaABSENT & EXCUSED: Fred Galdones Andrew IwashitaBill Graham Jeffrey McCallRodney Watanabe Alvin Rho Allen Salavea Rene’ Siracusa Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 24 people from the public in attendance. APPLICANT: PAT FAY & MARY ROBLEE (SPP 06-000032) Special Permit to allow the establishment of a 2-bedroom bed and breakfast within an existing single family dwelling located on 0.5 acre of land situated within the State Land Use Agricultural District. The property is located along the west (mauka) side of Paradise Ala Kai Street, approximately 1 mile from its intersection with Paradise Drive, Hawaiian Paradise Park Subdivision, Keaau, Puna, Hawaii. TMK: 1-5-59:28. ALAMEDA:All right, moving right along. Fellow Commissioners, we’re on Agenda Item No. 4, Pat Fay and Mary Roblee, Special Permit for 06-000032. Staff? DARROW:Thank you, Mr. Chairman. If I can direct the attention of the Planning Commission to the location map, the area of this application is within the Puna District of Hawai`i. More specifically, we’re looking at the Hawaiian Paradise Park Subdivision in light green. In light blue, we have the Orchidland Subdivision. Traveling in an east-west direction, we have Keaau-Pahoa Road. The area of the application is actually at the makai side of the subdivision. Access would be through Kaloli Drive down to Ala Hele O Puna Road. I thought that was Beach Road but, then you would travel down K Road all the way down to Paradise Alakai Drive. The area of the application is identified in blue. The Applicants in this case, Pat Fay and Mary Roblee, are requesting a Special Permit to establish a two-bedroom bed-and-breakfast operation on a parcel that is .5 acre in size. Looking EXHIBIT B 1 at the submitted site plan, the property is identified in light blue. The road on the makai side of the property is identified on the bottom with Paradise Alakai Street. The proposed bed-and-breakfast will be in an ohana dwelling that’s being constructed on the site. There is also an existing single-family dwelling that is identified in purple. Looking at the submitted floor plan from the Applicants, we have the two bedrooms identified, as well as the owner’s bedroom and the rest of the dwelling. This is on the second floor of a two-story dwelling. The Planning Department has received several letters in regards to this application. We’ve received a letter from the Chen family there located on the makai side of the road just across from the Applicants. That was a letter of opposition. We’ve received a letter of support from the Burrell’s and they’re located on the north side of the Applicants’ property, and they’ve submitting a letter of support. We’ve also received a Petition for Standing in a Contested Case. This is from the Lai family and they’re located directly to the west of them, just behind the parcel. So that would be this parcel here. We have also received a recent letter from Janie Lai stating their objections to the application, as well informing the Planning Department that they will not be here to represent themselves for the Petition this morning. The Planning Director is recommending that this request be approved by the Planning Commission. Are there any questions? ALAMEDA:Mr. Darrow, was the Petition for contesting on time? DARROW:Yes. ALAMEDA:Okay. Commissioner Siracusa? SIRACUSA:Yes. I noticed that the application was originally for a three bedroom and then it got changed to a two bedroom. DARROW:Correct. SIRACUSA:And there are some places, however, in the Background Report where that change was not made. And I just wanted to get it on record that whenever that happened we should read it as, not the Background Report, excuse me, the application, in the application, it was made on the cover page -. DARROW:Correct. SIRACUSA:The three was crossed off and two was put in there; but then there’s a few other places -yeah, on Page 2, B. Project Concept and Components, it still said three-room B&B. EXHIBIT B 2 So whenever that original, I just want to make it on the record so that we’re clear that we don’t have two different sets of things in the paperwork. DARROW:Okay. Thank you. ALAMEDA:Fellow Commissioners, please note that this is also a potential Contested Case, and so we may revisit this whole application again. I’d like to call up the Applicants or their representative at this time. Any questions? Commissioner McCall? MCCALL:Yeah, just a quick question. This is within the SMA area. But where is the SMA line, if you could show me? DARROW:I’m not sure exactly where it is but it runs approximately 500 feet along the coastline, within the Paradise Park Subdivision. That was a good point brought up by Commissioner McCall. Originally, the Applicants submitted a SMA assessment and it was determined that this did not trigger the need for a major use permit, Special Management Area Major Use Permit. They did receive a minor permit which is Exhibit 3 within your Background Report. ALAMEDA:Thank you, Mr. Darrow. Any questions for our staff now? Seeing none, I’d like to call up the Applicants or their representative. Thank you. Thank you for coming. I’d have to swear you in, so could you please raise your right hand? Do you swear or affirm to tell the truth now before the Hawai`i County Planning Commission? APPLICANTS:I do. ALAMEDA:Thank you so much. Could we start from my left. Could you please state your name and address for the record? In the mike so we can get it on the minutes. FAY:My name is Patricia Fay and my address is 15-782 Paradise Alakai. ALAMEDA:Thank you, Patricia. Ma’am? Your name and address? ROBLEE:Okay. My name is Mary Roblee and I’m at 15-782 Paradise Alakai, Keaau. ALAMEDA:Okay. Well, you’ve heard some of the discussion and the staff’s presentation. Did you get a copy of the Department’s recommendation with all the conditions? ROBLEE: Yes. ALAMEDA:Okay. Do you have any questions on that? Seeing none, fellow Commissioners, do you have any questions for our Applicants? Commissioner Salavea? SALAVEA:Just real quick. To clarify, the proposed bed-and-breakfast will, no one will be residing there? It’ll be, even though it’s only two of the bedrooms, two of the three bedrooms, will someone be residing in the third bedroom? Is that, I just want to clarify. EXHIBIT B 3 ROBLEE:That is correct. There are, we have a third bedroom as our own, the owners’ room; and, so, we’ll be residing in the dwelling. SALAVEA:Okay. So you’ll be residing in that bedroom? ROBLEE:Correct. SALAVEA:All right. Thank you. ALAMEDA:Commissioner Rho? RHO:I have a question on Page 8, the application itself. It talks about water in the middle of the page. On the previous page, Page 3 of that application, it talks about in Item C.5 that there maybe up to 10 guests. Is that based on three bedrooms or two bedrooms or, is that the reason for the -? ROBLEE:Three bedrooms. It was three bedrooms, right. RHO:So what would the projected not-to-exceed number be? ROBLEE:I would say four, four to five. RHO:Okay. And so, therefore, your water catchment, I think you’re on catchment system? ROBLEE:That is correct. RHO:Will be able to support the five, four or five, plus the two, plus your rental unit occupants? ROBLEEThat is correct. RHO:Okay. That’s it. DARROW:Commissioner Rho? ALAMEDA:Mr. Darrow? DARROW: It appears that there already, there is an existing water tank and then also a proposed water tank. So looks like there are, is that correct? ROBLEE:No. There is only one existing water tank. I think the original one might have been taken out by the previous owners and the water tank is in front of the first one -. DARROW:Right over here? EXHIBIT B 4 ROBLEE:Right there. DARROW:Okay. ROBLEE:That is correct. And that is a 10,000 gallon tank. ALAMEDA:Commissioner Rho, follow-up? RHO:I have another one. I know that the solid waste plan, I think you’re exempt from where they’re saying you can just go ahead and make sure you go to the proper facility, so that’s answered for me. For the wastewater, I’m not sure that there’s an answer. I haven’t read an answer to the, it says, from the Department of Health, “Wastewater Branch is unable to make comments to the proposed project at this time. Before we can offer any comments, the applicant needs to address the location of all existing wastewater systems.” So I was curious as to whether or not you got a response or we got a response from the Health Department. ALAMEDA:Mr. Darrow? DARROW:Let me check the file. ALAMEDA:Okay. Ma’am, do you have any comments on that, to Commissioner Rho’s question? ROBLEE:No. We have a septic system which is sufficient for the two dwellings. The two dwellings had been in use by the previous owners and there has never been any concern about the septic. In terms of size and all that, I have no clue. ALAMEDA:Mr. Darrow? DARROW:We’ve only received the one response from the Department of Health in regards to the wastewater system. ALAMEDA:Commissioner Rho, follow-up? No? RHO:No. ALAMEDA:Commissioner Siracusa? SIRACUSA:I assume that when the ohana dwelling was permitted that the wastewater system was approved by that, at that time. Because it looks to me like we’re not adding on any more people, really, I mean, we’re not adding any structures here. So it’s the same potential, the same number of people using water and creating wastewater. So would the original letter, if there was one, be applicable still in these circumstances and would Mr. Rho consider that to be sufficient to answer his question? ALAMEDA:Commissioner Rho? EXHIBIT B 5 RHO:I would not. ALAMEDA:Mr. Darrow? DARROW:It’s my understanding that when a building permit is submitted to the Building Department, it has to be reviewed by the Department of Health and other governmental agencies. When it’s reviewed by the Department of Health, they check it for whether or not they can put a cesspool or if it requires a septic system. In this particular case, the Applicants have informed us that it has gone to the higher level of using, utilizing a septic system. When they look at that, usually they look at the amount of bedrooms per dwelling. The number that I’m familiar with is five bedrooms is a trigger requiring a larger-sized either cesspool or septic system. At this point, we’re looking at a two-bedroom and a three-bedroom dwelling. ALAMEDA:Clarification, Mr. Darrow. The trigger, is it the five bedrooms or five toilets? DARROW:My understanding it’s five bedrooms. ALAMEDA:Okay. All right. Any other questions for Applicants or for our staff? Seeing none, you may be seated. Do we have any public testimony on this matter, staff? NOMURA:No one signed up. ALAMEDA:Besides the testimony that was written, we have no public testimony at this time. However, we do have a Contested Case, and so I’d like to address this at this time as well. Commissioners? SIRACUSA:I have a question for Corp. Counsel. I noticed in the application for Contested Case that the Lin Family Trust stated that their interests were not different from those of the general public. Does that mean then that they automatically are not qualified? ALAMEDA:Mr. Darrow? I mean, Mr. Torigoe? TORIGOE:Thank you, Mr. Chairman. I think you’re referring to the “x” mark in reference to the Question A, “Is your interest in this matter clearly distinguishable from that of the general public?” and they checked off “No.” Is that what you’re referring to? ALAMEDA:What are you referring to, Commissioner Siracusa? Could you point us -? SIRACUSA:“Petition for Standing and Contested Case, Jane Lai & Larry Lai for Lai Lin Family Trust.” Question 1.A, “Is your interest in this matter clearly distinguishable from that of the general public?” and they checked the box that said, “No.” So my question is, usually, I was under the impression that that was the prime qualification or criterion that we looked at when deciding if someone had, should have standing. ALAMEDA:Very good. Mr. Torigoe? EXHIBIT B 6 TORIGOE:Yes, that’s normally the case. As you look at the entire application or as you read down, they may have been a little confused about, you know, what they were being asked. Because if you look at l.C it says, “Do you lawfully reside on or have some property interest in the land involved in the subject request?” and they checked “Yes” there. From what I can tell on this application, though, the Lais don’t have a property interest in the subject property. But then they go on and explain how they’re the next door neighbors; and so they’re concerned about, you know, commercial development and other impacts. SIRACUSA:So, Mr. Torigoe, are you saying that it appears, especially from the way that they’ve written the rest of their comments, that they have a language problem and we should cut them some slack? TORIGOE:That is I think something that you should consider, at least. They’re not here today and I don’t know what -. I guess, they just wrote a letter saying that they were not going to show up? HAYASHI:Mr. Chair? ALAMEDA:Yes, Mr. Hayashi. HAYASHI:Ms. Lai did call me last week and indicated that they still wanted to be a party; however, they would not be able to make today’s meeting. I did inform them that the Commission would appreciate having her or her representative here at the meeting since there was a case, a situation where the Commission had, oh, it’s slightly different, that was a timely filing, but the Commission also used the reason that the Petitioner was not in appearance at that particular meeting. If you recall that was the Suisan or Rex Matsuno application. So they were informed that they should have at least someone present at this meeting. ALAMEDA:Mr. Torigoe? TORIGOE:Yeah. So it sounds like they still want to be involved as parties but for whatever reason, I guess they live in California so they probably didn’t want to just fly over for a standing determination. So I wouldn’t, and the rules don’t specifically say that they have to be here in order to have standing determined. I think that can be determined based on the application. So that’s what I suggest you do, is take it up based on whatever’s on the application at this point. ALAMEDA:Okay. I feel comfortable taking it up and using the circumstantial surrounding evidence that this is an actual contested application. Commissioner McCall? MCCALL:Yeah. In my experience, we have accepted Petitions for Standing with the Petitioner not being here before. At the same time, I don’t want to overly burden the Applicants with going through a Contested Case procedure if the Petitioners are not going to participate. If the Commission was interested, what we could do if we accept, if for instance we accept their Petition for Standing, we could schedule the Contested Case, say, for the next Hilo meeting. Instead of going through the procedure of having a, ‘cause this should be a relatively simple one, EXHIBIT B 7 instead of going through the procedure of having a, I forget, whatever you call, you know, someone coming in as a -. ALAMEDA:A hearing officer? MCCALL:Yeah, a hearing officer. We could hear it ourselves at the next Hilo meeting, make our own decision and get on with it, you know, rather than going through a hearing officer which would hold this thing up for six months or more. I mean, so at least at that point we, my feeling is that in general this Petition is valid. We probably should give them standing, but go through the procedures quickly so that we don’t hold up the whole process here. ALAMEDA:Okay. Fellow Commissioners, how do you feel about that? Commissioner Siracusa? SIRACUSA:I have no problem with Commissioner McCall’s suggestion. It doesn’t unduly burden the Applicants and at the same time we are allowing the Lai family to have their say and giving them the benefit of a doubt in terms of their application, so I have no problem. ALAMEDA:Commissioner Salavea? SALAVEA:Thank you, Mr. Chair. Can I ask a question of Mr. Torigoe? ALAMEDA:Sure. SALAVEA:So by granting Standing in the Contested Case Hearing, the recognized party, it’s mandatory for them to participate in the contested -? They can’t do it from long- distance and say, “We’ll mail correspondence regarding our perspective?” They have to be at the hearing to participate, is that correct? TORIGOE:Well, the Contested Case procedures can be modified by agreement of the parties. So, you know, basically, I think if they wanted to say that, “Hey, we don’t want to fly over and we just want to participate by telephone and/or written argument,” and if the Applicants are agreeable to that, that’s a possibility. ALAMEDA:Thank you, Commissioner Salavea. Any other questions around this potential Contested Case? Commissioner Siracusa? SIRACUSA:Yes, this is to Mr. Torigoe. I’m wondering if there’s another option open to us, and that is to just table everything until the next Hilo meeting. And at that time if the family, the Lin Family Trust, comes forward, we can decide, can we decide at that point to make a Contested Case Hearing or not, and hear the whole thing, anyway? ALAMEDA:Mr. Torigoe? SIRACUSA:Did I make myself clear on that? ALAMEDA:I heard that. I understand. EXHIBIT B 8 TORIGOE:Well, you know, your rule, basically, Rule 4-7(b), says that at the first hearing on the matter, you should hold a hearing on the written request and decide. It says, “The Commission will grant or deny such written request prior to any further action on the matter.” So, you know, I can’t see where there would be any real prejudice if you decided just put everything off one more meeting. But the rule seems to say you really should grant or deny the request for standing before any further action. ALAMEDA:Commissioner Iwashita? IWASHITA:I’d like to make a motion. ALAMEDA:Motion in order. IWASHITA:Move that the Petition for Standing in Contested Case Hearing filed on August 3, 2006 by Janie Lai & Larry Lai for Lai Lin Family Trust in this matter be approved, granted, and that the Applicants, Petitioners be granted Standing in a Contested Case. ALAMEDA:Is there a second? MCCALL:Second. ALAMEDA:Motion made by Commissioner Iwashita, seconded by Commissioner -. Commissioner Iwashita? IWASHITA:Yeah, and that the matter be heard by the Planning Commission and not by a Hearing Officer. ALAMEDA:Okay. Is there still a second for that one? MCCALL:Sure. ALAMEDA:Okay. Motion made by Commissioner Iwashita to grant standing and that it be heard by Commissioners and not out by a Hearing Officer. Seconded by Commissioner McCall. Discussion? I have a discussion item. I get a little bit nervous when we take it upon ourselves to hear a potential Contested Case. But in this regard it does seem like something that we can handle. And, are we going to, then, look at it at the next Hilo meeting? That was part of the proposal? IWASHITA:Yes. ALAMEDA:Okay. Any other discussion? Commissioner Salavea? SALAVEA:Well, maybe kind of parallel with your concern, if we can ask staff to put this at the back end of the agenda for the next meeting, as not to hold up the rest of the items that may be scheduled for that particular day. EXHIBIT B 9 ALAMEDA:Mr. Torigoe? TORIGOE:That’s fine. ALAMEDA:That’s fine. Fellow Commissioners, you have any objections to that? Seeing none, roll call? DARROW:Thank you, Mr. Chairman. Commissioner Iwashita? IWASHITA:Yes. DARROW:Commissioner McCall? MCALL:Aye. DARROW:Commissioner Rho? RHO:Aye. DARROW:Commissioner Salavea? SALAVEA:Aye. DARROW:Commissioner Siracusa? SIRACUSA:Aye. DARROW:And Mr. Chair? ALAMEDA:Aye. DARROW:The motion passes to grant standing to the Lai Family and that the case be heard by the Planning Commission. ALAMEDA:Thank you. Thank you, ma’ams, for coming. Oh, Commissioner McCall, any questions? MCCALL:Can we make sure to direct the staff to discuss with both the Petitioners and with the Applicants what their rights and responsibilities are. You know, I think my assumption is this would be low-key. We would not need to be hiring, I mean, sometimes you need to hire lawyers and the whole bit; but I think we can keep this, you know, very low key. But there would be some preparation that would be, that you could talk to the staff as far as what’s needed; and my hope would be that we can go through the Contested Case, decide it and have this whole thing worked out by the next, you know, if we can schedule it for the next Hilo meeting by that time, and so we won’t unduly postpone the thing. Thank you. EXHIBIT B 10 ALAMEDA:I want to ask Mr. Torigoe to advise our Applicants on the processes; and one in particular is called the “pre-meeting with the advising officer” which could be myself or the facilitator of that particular meeting. So, Mr. Torigoe? TORIGOE:Yes, just very briefly. The Contested Case procedures are under Rule 4 of the Planning Commission Rules, so you should ask staff for a copy of that, as well as Rule 6 under which you’re applying for a Special Permit. And if you are able to contact the Lais and if you can work out any agreements as to any changes to the procedure that you want to make to simplify it, you can make that agreement among yourselves. And it would be good to contact staff so that we can discuss that, have like a short pre-hearing conference at some point before the hearing with the Chairperson and myself to make sure that everybody is on the same page as to how the procedures are going to go. Otherwise, the Contested Case procedure is semi-formal. Usually, if you look at the rules it sets forth a trial-like proceeding in which formal rules of evidence do not apply. But the parties do get to call witnesses, and present exhibits, and cross- examine each other’s witnesses, that sort of thing. Okay? So that’s all in the rules. I don’t know if you have any particular questions at this point. ALAMEDA:Thank you, Mr. Torigoe. So we invite and encourage you to work with staff to clarify any kind of questions. It gets kind of complicated after awhile. So feel free to work with our staff. Thank you, and thank you for coming. Thank you, Commissioners. The discussion ended at 10:39 a.m. Respectfully submitted, Sharon M. Nomura, Secretary EXHIBIT B 11