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HomeMy WebLinkAbout2003-09-11 tmalian PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT SEPTEMBER 11, 2003 A regularly advertised public hearing on the application of JAMES AND MIHOKO MALIAN (REZ 03-015) was called to order at 1:20 p.m. in the King KamehamehaÓs - Kona Beach Hotel, Kamakahonu Ballroom IV, 755660 Palani Road, Kailua-Kona, Hawaii, with First Vice-Chairman Earl Fujikawa presiding. PRESENT:Earl FujikawaABSENT & EXCUSED:Fred Galdones Bill Graham Jeffrey McCall Florence Kubota Bill Thibadeau Aurelio C. Mina, Jr. Francis Smith Hannah Springer Craig Masuda, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Staff Planner Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler representing Department of Public Works And approximately 15 people from the public in attendance. APPLICANTS: JAMES AND MIHOKO MALIAN (REZ 03-015) Change of Zone application for 42.793 acres of land from an Agricultural 5-acre (A-5a) to a Family Agricultural 2-acre (FA-2a) zoned district. The property is located adjacent to and north of the Kona Hills Estates Subdivision, approximately 1,900 feet west st (makai) of Highway 190, Ooma 1, North Kona, TMK: 7-3-07:40 and 41. FUJIKAWA:Okay, weÓre going to be starting the hearing. First of all, we have a testifier who has to catch a flight back to Honolulu, I guess, and heÓs here to testify on Item No. 5. The Applicants are James and Mihoko Malian regarding (REZ 03-015), Change of Zone application for 42.793 acres of land from an Agricultural 5 acres (A-5a) to a Family Agricultural 2-acre (FA-2a) zoned district. We just have one of the person whoÓs going to testify. So can Matthew Ha please step forward. HA:Good morning, everyone. Thank you, Mr. Chairman, and Board members. 1 FUJIKAWA:Wait there a second. Okay, you want to raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? HA:I do. FUJIKAWA:Okay. You may be seated. State your name and your address, please? th HA:My name, Matthew Ha. My address is 847 7 Avenue, Honolulu, Hawaii 96816. My home number is 739-1475. FUJIKAWA:Okay, you may proceed with your testimony. HA:Thank you, Mr. Chairman, and the panel members for moving my agenda. I have to catch a flight. And this is relatively new for me, so please bear witness to my problems here. I have submitted a written testimony to the members. So rather than run through the whole thing which everybody would just be reading on, IÓll try and make it very brief on my basic statements. Basically, this land that my family owns is sitting on the northern border of Mr. MalianÓs property. Our tax map key is 7-03-05-003, and is presently surrounded by several other undeveloped properties. We really donÓt mean to portray us as being anti-development, we are not so much in dispute for this project. Our only concern is with the present layout of the project, we see our property being land-locked without access, okay? Basically, when I talked to several people about this, including Mr. Sidney Fuke, he gave me several alternatives that were supposed to remedy the situation. The problem with that is presently thereÓs a 20-foot easement that runs approximately 2,400 feet long connecting to the main highway. Now, according to the County standards, this 20-foot easement is serving approximately three to four different landowners. In essence, if I was to take access on that 20-foot right-of-way, IÓm looking at a 20-foot wide, 2,400-foot driveway. Now the driveway is insufficient, according to the County standards, for any kind of two-way traffic because IÓm serving several different property owners. Also, because IÓm in that situation there, any kind of emergency vehicle or public utilities would have to go down that easement, and that 20-foot wide easement is very insufficient. If the County was to make it standard, a minimum size road would be 50 feet of right-of-way, which means, basically, the County would have to get 15 feet on each side of that easement. My family has had this property for approximately 1950 on and ha gain access to the property. I believe that the subdivision presently surrounding the property was built; and due to some unfortunate circumstances, we were never able to establish any kind of access. 2 We are here before you just to ask humbly to the Planning Commission if it is possible for Mr. Malian and his partners to presently move the north-sout project approximately 300 feet to the east, therefore, providing us future access in the event we, or perspective buyers or investors, decide to buy or if want we want to make a homestead. Right now, I have no access whatsoever. Even if you see that 20-foot wide easement, there is no physical access. You canÓt go down that thing unless you go by feet or maybe donkey cart. With that, we just want to see if it is possible that Mr. Fuke and his partners will be able to move, like I said, the north-south road, approximately 300 feet to the east to connect on our southern border which would be the easement. Thank you. FUJIKAWA:Just a minute. Commissioners, this is a concern of Mr. Ha. Is it okay for you people for me to have this application brought forward to you now while it is still fresh? SPRINGER:I have no objections. FUJIKAWA:Okay? So, staff, can you do a presentation on this application, No. 5? DARROW:Yes, Mr. Chairman. Thank you. If I may direct your attention to the location map. This line here, the white line is Mamalahoa Highway traveling in the north-south direction. This being the north and this being the, correction, this is the south and this is north. The area in question is identified in a red dot here. The application consists of two parcels located near the Kona Acres Subdivision, the Kona Hills Estates Subdivision, as well as the Kona Palisades. The applicants, James and Mihoko Malian, are requesting a Change Agricultural 5-acres to Family Agricultural 2-acres. If I can direct your attention to the site map. The area in blue is both parcels owned by the Applicants where the Change of Zone is to occur. If I might point out, Mr. HaÓs property is located next to this area, identified here. The road that Mr. Ha is referring to, the north-south road, is identified here, which appears on this map to come just under h property by, on the north-south connection. The access to this area will be through Kukuna Street, which is identified here. It is a County-owned roadway and will be extended from the western boundary all the way to the eastern boundary. The intention of the Applicant is to subdivide these parcels into 18 family agricultural 2-acre lots. The Planning Director is recommending a favorable recommendation be forwarded to the HawaiÒi County Council. Are there any questions? 3 FUJIKAWA:Any questions, Commissioners? Go ahead, Commissioner Springer. SPRINGER:Thank you. Once individuals leave the subject site and get onto Kukuna, do they then get out to Kona Palisades, Kaiminani, on Holoholo Street? DARROW:That is correct. SPRINGER:And one more question. On the property below Mr. HaÓs property, thereÓs a reference to a government road? DARROW:Correct. That is identified as the Alanui Kauila Government Road. There has been some questions regarding this road. On this particular property that is not located on the MalianÓs, it is identified as a government road. ItÓs my understanding that on the MalianÓs property, itÓs identified as a 20-foot road reserve; and possibly the ApplicantÓs representative can go into more detail about that. SPRINGER:Thank you. Thank you, Mr. Chair. FUJIKAWA:Is there any -. Commissioner Kubota, go ahead. KUBOTA:IÓm okay. FUJIKAWA:YouÓre okay? KUBOTA:Thank you. IÓm all right. FUJIKAWA:Anyone else of the Commissioners have any question with the staff? Mr. Ha, sit right there. The Applicant or the representative, please step forward? Mr. Fuke, did I swear you in? FUKE:Yes, I had. I mean, yes, IÓve been sworn in. FUJIKAWA:Okay. You may proceed. FUKE:Thank you, again, Mr. Chairman, members of the Commission. My name is Sidney Fuke, IÓm a planning consultant. IÓd like to also acknowledge the presence of the ApplicantÓs representatives, Marty Ohan and Regg Lawson, who are seated here. The Applicant has reviewed the staffÓs background report and the proposed conditions recommended by the Planning Director and found them to be acceptable. I would like to note and, specifically, I guess in response to Mr. HaÓs question is that, or comment rather, is that the Applicant has no objections in relocating the north-south road. I think thatÓs going to be a decision that ultimately has to be made jointly between the Planning Department and the Department of Public Works as they review the overall, what they 4 call, ÐconnectivitiesÑ of roadways in this area. What you see on the map or what was submitted in conjunction with the application is just a prelimin subdivision location that ultimately will have to be revised to accommodate any conditions of approval. Thus, if the County in its wisdom determines that the more appropriate north-south connection be further mauka to provide the access that Mr. Ha is requesting, then, you know, so be it. Alternatively, if they find that the north-south access may be more appropriate on the makai end, you know, which like an extension of Ahiahi Street then, you know, itÓs not a problem for the Applicant. So the long and short of it, I think that Condition G thatÓs recommended by the Planning Director provides for such an opportunity; and, to reiterate, you know, we have no objection in wherever that north-south roadway goes. FUJIKAWA:Planning Commissioners, is there any question to the Applicant KUBOTA:Mr. Chair? FUJIKAWA:Go ahead. KUBOTA:Mr. Fuke, then you are assuring Mr. Ha that he will not be land- locked? FUKE:I can answer that question two ways. One is that the property is legally not land-locked. You know, it may be physically difficult to get to the property but itÓs not legally land-locked, because they do have a legal access over the existing 20-foot homestead road that runs mauka-makai; and that homestead road is not part and parcel of this application. Notwithstanding that, you know, wherever the north-south roadway goes, you know, we cannot make that determination. ItÓs a determination based on the staffÓs proposed condition. So itÓs a determination thatÓs going to have to be reserved by both the County Planning Director and the Public Works Department in conjunction with the subdivision review of this application. KUBOTA:May I continue? FUJIKAWA:Go ahead. KUBOTA:When you say theyÓre not legally land-locked, youÓre saying that they have an option but that was the one that Mr. Ha referred to as having a long driveway? FUKE:ThatÓs correct. KUBOTA:Thank you. FUJIKAWA:Any other questions from the Commission to the Applicant? 5 Mr. Ha, the Planning Department has given the Applicant the conditions and IÓm pretty sure that you, kind of made you more comfortable with theaccess, to whatÓs happening there. I do have another testifier. Curtis Tyler, please step forward? KUBOTA:Mr. Chairman, before you get to Mr. Tyler, may I, since Mr. Ha is there, may I just ask him a question? FUJIKAWA:Go ahead. KUBOTA:Having heard what Mr. Fuke responded just a while ago, does that alleviate your concern about being land-locked? HA:Techically, what heÓs stating is true. Physically, itÓs not because that homestead road, although itÓs not Mr. FukeÓs or Mr. MalianÓs responsibility, right now does not provide me any access. KUBOTA:ThatÓs not what I was referring to. I was referring to the clientÓs, his clientÓs willingness to shift the, what was it, north-south -. HA:Oh, to my border? KUBOTA:Yes, yes. HA:Oh, yeah, that would suffice, fine. ThatÓs no problem, thatÓs why IÓm humbly coming before you to see if I can switch it over and thus providing -. KUBOTA:You canÓt do it but itÓs at their grace -? HA:Yeah. Right. KUBOTA:That they will do it? And if that would alleviate your concern, then you have no more concern? HA:I will have no more concerns, maÓam. KUBOTA:Thank you. YUEN:Could I ask a question or two? FUJIKAWA:Go ahead. YUEN:ThereÓs another lot just makai of yours, and thatÓs where the preliminary subdivision map shows the road connecting. Do you know who the owner is there? 6 HA:I do not. I have physically gone out there in June and saw t of the lots next to our border has been cleared and grubbed. I believe, according to my survey map, that physically, that government road terminates at Unit on somebodyÓs property. So, in other words, that government road that theyÓre looking at, I believe, it goes north and just terminates at somebodyÓs property line. As far as physical features go, I did not see that road physically out there when I went out to check the site. YUEN:Just for the sake of the Commission, our current conditions recommended conditions of approval say that the Applicant shall construct at least one connection to the north and one to the south. FUJIKAWA:You understand that, Mr. Ha? HA:Yes, I do. But is it possible to connect the south to the existing government road and the north to my southern border? FUJIKAWA:Planning Director? YUEN:You know, this is hard to work out right here because IÓm not sure of the terrain and what had happened in the subdivision. If they did build it, this one, it would be, instead of being 2,500 feet from the road, itÓd be 300 feet from the road, which has -. HA:That is correct, except I would have to use that 20-foot wide easement; and in order for me to qualify that easement to become a County specified road, I would have to somehow acquire 15 feet on each side of it FUJIKAWA:Go ahead, Commissioner Graham. GRAHAM:I just want to clarify where weÓre at. IÓm not sure, but it seems to me that Mr. Fuke has suggested that, you know, heÓs amenable to happen, but that itÓll, the location of a north-south road will come about in discussions with Public Works and with the County when theyÓre further down stream. And, so, itÓs not something he can guarantee at this point. Other than Mr. Ha sort of bringing it to us at this point, with us maybe having discretion to make some kind of recommendation or requirement, that it do suffice to do the access that he wants -. So thatÓs really kind of the issue before us that we, do we affirmatively make any statement about how we wish it to be worked out? Am I reading the sense of whatÓs going on correctly? HA:Basically, yes. The way I look at it, itÓs a matter of what is there and what is actually there. When you look at the layout on the plans, thereÓs a whole lot of accesses; but you actually physically go out there, itÓs very incomplete. We, like I said, weÓve had this land since 1950. Throughout all those years weÓve never had a chance to gain access from the County, whether it be being out of the loop in meetings, 7 being denied access because of budget restraints. The only thing I can say is we have a chance now, through the grace of Mr. Fuke and his partners, to possibly gain access in the future without any kind of economic burden per se to the County or to the surrounding property owners. DARROW:Could I interject? FUJIKAWA:Go ahead, sir. DARROW:Looking at the comments from Public Works, No. 3, theyÓre dealing with this issue. They said, they recommended that the connection to the northerly boundary shown on the exhibit should be aligned to facilitate a future connection to existing Lalei Street, meeting with the approval of DPW. And then it goes on to say that the southern boundary should be connected to the existing street on TMK: 7-3-055:037, Lot 40. Looking at the location map, Lalei Street is in Kona Acres. There also is Ahiahi Street which is straight shot to Kaiminani, but that doesnÓt appear that thatÓs going to be able to work at this time. The intention is to go from the northern boundary of MalianÓs property and in hopes for a possible future connection to Lalei Street to be able to place a connectivity into this area. If weÓre looking at a situation where the road may dive into a property, then at that point, unless Mr. HaÓs property is further subdivided and able to bring in some connection there, weÓre going to just have a road that deadends at that point. I know from reading Mr. FukeÓs response that thereÓs a possibility Mr. Ha can be able to get some sort of easement. They may be able to come from his property to the existing end of Kukuna Street; and that might be an option as well. FUJIKAWA:Okay, any questions, Commissioners, to the staff? FUKE:Mr. Chairman? FUJIKAWA:Go ahead, Mr. Fuke. FUKE:I think that if you were to look at the staffÓs Background Report, and in the application, and in Figure 3, then you may be able to get a better sense as far as like, you know, where roadway connections are, so on and so forth, and the specific property that Mr. Ha has been referring to. In Figure 3 you can see the proposed subdivision layout which is whatÓs up there on the map. Mr. HaÓs property actually begins, if you see where the word ÐzoningÑ is, you know, thereÓs a hash line and then thereÓs a Ðzoning,Ñ Mr. HaÓs property basically is from that road, I mean, from that word ÐzoningÑ and going mauka. So thatÓs his property. So the proposed alignment that, what you see on the proposed subdivision map was intended to pretty much like maintain, I guess, the spirit of that Alanui Kauila Road. But I think as your staff has pointed out, if you maintain that roadway, that roadway eventually hooks up to someoneÓs backyard and it leads to nowhere. 8 Now, if alternatively, so thatÓs why from the ownerÓs standpoint, the ApplicantÓs standpoint, the proposed roadway that, the north roadway could easily be shifted further mauka, then eventually, and provide some measure of access to Mr. HaÓs property, provided that I think the County finds in its wisdom that, you know, that connection would probably be best if it ultimately hooks up with what they call as ÐLalei Street.Ñ You know, Òcause Lalei Street right now is an adjoining subdivision and itÓs just like a road stub. If you were to extend Lalei Street through the intermediate property and then get to the subject property, then itÓs possible that you could have access to Lalei Street via whatÓs being proposed now, or having it further mauka and then possibly accommodating Mr. HaÓs concern. But the long and short of it is like, you know, you already have a condition and thatÓs something that ultimately, based upon more specific design consideration, taking into consideration like topography so on and so forth, that the Department of Public Works and Planning Department would evaluate and then ultimately make a decision. FUJIKAWA:Okay. Any questions from the Commissioners to Mr. FukeÓs statement? Go ahead, Commissioner Springer? SPRINGER:With regard to the Alanui Kauila, surely it predates any and all of the subdivisions and lots that are on either Figures 2 or 3; and, obviously, there has been some modification of that feature. In your report or the archaeologistÓs report that youÓve attached to the application, I donÓt see any discussion of it except in the narrative. And IÓm wondering if, as a government road, if the government has any claims or has quit any claim to it on the subject property? FUKE:Perhaps the Planning Director being an attorney can respond to that again. But, you know, we have some information that shows, like relative to this parcel of land, what the government did was when they subdivided that whole area into these homestead lots, the government had then reserved a 20-foot wide right-of-way for the Alanui Kauila, I guess, Road, as shown in the plan. So it was a road reserve but the land is still owned by the respective property owner. Government just kind of reserved the portion so in the event that they wanted to have the road then theyÓd be in a position to, I guess, exercise that. But the fee owner of the basic property was, the way I read it, still fell under the existing property owner, which is Mr. Malian. SPRINGER:And then, so then theyÓre not so much claiming the physical treadway of that Alanui Kauila but rather that there is an accessway across the property? FUKE:Correct. And so in the design of the subdivision, we kind of wanted to maintain the spirit of this north-south connection, and thatÓs why like the roadway as proposed pretty much follow that alignment. And it shifted a little bit makai just to accommodate some of the topographic constraints. 9 SPRINGER:But, again, you have no objections, if topography and other constraints permitted, to accommodate Mr. HaÓs needs? FUKE:No. SPRINGER:Thanks. FUKE:Again, that would be, you know, the call of the Planning Department and the Public Works Department. FUJIKAWA:Any other questions from the Commissioners? SPRINGER:Not right now, thanks. FUJIKAWA:Not right now. We have a testifier, Curtis Tyler. You have been sworn in. You may proceed. TYLER:Thank you, Mr. Chairman. Good afternoon, ladies and gentl Thank you very much for the opportunity. I wasnÓt planning to testify on this. But IÓm very pleased that Mr. Ha is here and taking the time to come from Oahu to share his concerns, because it brings right to forefront and to the table a pending matter that has been pending since 1997 -- A resolution that was drafted by me a by the HawaiÒi County Council, for the HawaiÒi County Planning Department to develop a roadway circulation plan in the Greater Kalaoa area. The community has been meeting monthly or every other month now since 1997, and we have no resolution to this. And this is perfect example, and if youÓll refer to your, to the DirectorÓs recommendations and, in particular, Exhibit A, youÓll begin to see that in some cases there is some reason to the rhyme and in other cases there will never be any reason to the rhyme because the roads will not be able to connect. I think itÓs incumbent upon the Planning Department and the Plan through them, to determine what happened to the Alanui Kauila. Commissioner Springer asked the question, well, what is that. And I have a copy of the deed, Schedule B Exceptions, that Mr. Fuke provided to me regarding that. And it says, No. 3, ÐReserving a 20-foot right-of-way for ÒAlanui Kauila as shown in planÓ as set forth in the Land Pattern Grant Nos. 3819 and 3820-B.Ñ And I think as Commissioner Springer knows, and some of you who have lived here for a long period of time, t actually is an extension of the Kohanaiki Road, I believe, and it goes all the way down to Kiholo, passing below Kukuiohiwai, Commissioner SpringerÓs residence. It has become disconnected for reasons unknown, well, for specific reasons unknown to me. And the same is true for the homestead road which runs mauka-makai, and Kona Acres, Phase 3. But if one looks along Kona Acres, Phase 3, one finds the homestead continuing on the same alignment. 10 I donÓt know if the government gave up its rights to the homestead road or whether it gave up its rights to the Alanui Kauila. The fact that the government still owns portions of those roads, both to the north and to the south in various ahupuaÒa would lead me to believe that the government has not given up its rights. Furthermore, the Attorney General has opined that there is no adverse possession against the sovereign. So whether or not the sovereign indicates it owns it or not, it canÓt be dispossessed of its road. And, in particular, this one IÓm sure is subject to the Highways Act of 1892. With that as a little background, I think this provides the Commission, and the Director, and myself, and the community a wonderful opportunity to collaborate, to ensure that property owners like Mr. Ha are not adversely dispossessed of their future abilities to utilize their land consistent with the underlined land use of the LUPAG Maps. I think anyone can see from this map, and if you canÓt you certainly hea urbanization of this area to avoid urban sprawl, etc., etc. And I believe in your Background Report thereÓs quite a comment -, and your recommendation from the Director, quite a commentary on the concerns, and what this is being used for, and why itÓs more rural than directly urban. But in order to facilitate the proper planning and development of this area and coordination of the needs for citizen and automobile movement, that would be pedestrian and vehicular movement, I think itÓs incumbent on us to hear wha ensure that, indeed, these roadways can connect. I will tell you from my personal knowledge of this area that Ahiahi Street is, I believe Ahiahi Street was originally part of the Alanui Kauila and was realigned to be more in keeping with the plat map of that subdivision. If one goes to the southern end of Ahiahi, which you see on Exhibit A, there has been a subdivision which has been developed there of a few lots. And if not for a barricade, which was put up there, if one went straight in the middle of the night, one would go into about a 40-foot hole. So while itÓs easy to look at a two-dimensional map and say where these roads could connect, I think Mr. Fuke is correct when he says that there are topographic constrictions. And I would say very, and I would add very quickly that with respect to the homestead road which runs mauka-makai, its intersection with the Mamalahoa Highway, it would be virtually impossible for that connection to meet County dedicable standards because the road is probably 25 degrees there. Furthermore, itÓs currently gated. I donÓt know whether itÓs locked or not. But I have met with members of the community who called me, IÓve Mr. Fuke and some of the other ownersÓ representatives who are here today, to talk about this very important question about how do we allow, how do we build community, and how do we foster and facilitate interconnected roadway interconnections and pedestrian- ways which is, as Mr. HaÓs pointed out, the homestead road is a 20-foot right-of-way. It may be prudent for you to consider, and for me and the Counci comes to us, the acquisition of 15 feet from each property to ma way in the future, at least portions of it. But I wanted to caution you, for those of you who might not be familiar with it that at the mauka end, that is the eastern end, this would be a very difficult connection. Furthermore, as we observe this, we note that Kona Hills, 11 through no fore-thought or malice or anything of that kind, I donÓt mean to imply it, is a private subdivision. And, therefore, at the present time, roadway connections, as I think IÓve discussed with you for the Hualalai Vistas which came before you last time, itÓs problematical to connect at this time. Now at some point in the future they may dedicate it. So I believe thereÓs a really wonderful opportunity here. And, again, I pledge to work with you, Mr. Chairman, members of the Commission, as well as the Director and his staff, and the property owners, to come up with a good program. In closing, I would like to say that I thank Mr. Fuke and the Malians for the opportunity to meet with them and to come and meet with the community who ha want to make a positive comment here, I hope all of my comments today. But, in particular, I want to say that the Applicant is proposing a Family Ag (FA-2a) rezoning here. You know, look at Exhibit A and look at the RS-10. I have to live in one of those RS-10s. Life is going to be quite good for the people that live in here because theyÓre going to, itÓs going to be more rural, which is what the, what it calls for, what the Director speaks about. And, so, I want to publicly state my pleasure with, you know, the fact that I approve of an applicant coming in here and cut up to RS-10, but weÓre really going to go to only one-eighth of what we could do.Ñ And I commend them for that because for those of us who live mak Hinalani Street, where IÓm starting to build my house today as we speak, you know, everybody is concerned about traffic. So I believe theyÓre trying to be good citizens here; and I donÓt mean to imply in any way, shape or form that they arenÓt. I just think that we have a unique opportunity here. And I appreciate Mr. Ha coming to share his manao because I think we need to look at this. Thank you, sir. FUJIKAWA:Thank you very much. TYLER:YouÓre welcome. FUJIKAWA:Commissioners, any question to Mr. Tyler? Okay, if not, Mr. Ha, are you comfortable the way it stands now? HA:Yes, sir. Basically, IÓm here just to outline my concerns as my land. Like I said, it has been in my family since my grandmo the taking-over generation. I have several other siblings, brothers and sisters, that were looking at different options for their lives. After seeing this, I couldnÓt let this go. I just had to voice my concerns; and I just want to thank you all for giving me that chance to do this. FUJIKAWA:Thank you very much for coming. HA:Thank you. 12 FUJIKAWA:And, well, if thereÓs no other question and thereÓs no other testifiers, do I hear a motion? SPRINGER:Mr. Chair? FUJIKAWA:Commissioner Springer, go ahead. SPRINGER:Yeah, I donÓt have a question for the testifiers. But, Mr. Fuke, I do, I guess itÓs still an outstanding question to me whether or not thereÓs a government claim to the Alanui Kauila. And if there is none, I wonder if that section of road that, in essence, embodies the spirit of that road, transecting the land, if you might consider naming it the name of that older government road. FUKE:If it hasnÓt been taken, that would be a most appropriate name. SPRINGER:Thanks. And, Mr. Chairman, IÓm not sure where to go wi concern that I have whether or not the government, the State of Hawaii, has claim to government roads in this region. FUJIKAWA:Mr. Director? YUEN:It would appear, it is reserved in a deed; and unless it has been subsequently acquired by the private owner, it remains government property. SPRINGER:So is the alignment -? YUEN:Along the alignment as reserved. SPRINGER:Then, Mr. Fuke, it sounds as though that may be an issue for you that is not discussed here. I see in the report that thereÓs a burial that is immediately makai of that. I would offer then, also, that it might be taken into the burial treatment and considered in conjunction with that. FUKE:Correct. Yeah. Thank you very much. Just for information look at the Figure 3, the burial is located generally right above the proposed Lot No. 6, between Lot Nos. 6 and 7, right near the roadway, on the south side of the proposed mauka-makai roadway. But that road will be taken care of through a burial treatment plan; and appropriate buffers will be placed to assure itÓs not impacted during the construction phase. SPRINGER:And so if itÓs between proposed Lots 6 and 7, itÓs somewhat, some distance away from the Alanui Kauila? FUKE:ThatÓs correct. 13 SPRINGER:It is okayed with the DirectorÓs comments; and IÓm not sure then how we should treat this Figure 3 if there is a State of Hawaii claim on the Alanui Kauila. FUJIKAWA:Director, you have any comment? SPRINGER:And, Mr. Chair, I just comment, you know, that for myself as an occasional user of the trails of old and with the understanding that I have with historic preservation laws, IÓm not necessarily looking to, you know, just to exercise the, flex the muscle of historic preservation law. But I think there is an outstanding question here as to how the government treats those properties that are a part of its inventory of government roads. So, Sidney, this question is not only directed to you, but of the State of Hawaii and how it treats its resources. YUEN:Was there any, does the archaeological report mention any physical remnant of a road in the area? FUKE:No. They couldnÓt find any -. Well, the report doesnÓt indicate any remnants of a trail or a road. YUEN:Well, all I can say is from a legal point of view, it would remain, as I said, government property. As to whether, you know, this is, this gets tied into the roads in limbo. If itÓs non-vehicular, if it was non-vehicular, itÓs State. If itÓs vehicular, the upshot of the roads in limbo is going to be that itÓs County. And, so, if they were to go into and physically work on that area, they would need a right of entry from the County or possibly from the State, if they were to physically work, if they were to physically build a road in that area. SPRINGER:Which is, thatÓs what they want to do, yeah? Looking at Figure 3, is that not what they anticipate? YUEN:TheyÓre small, small portions of it, yes. Looks like they crossing of the road and the building of it. SPRINGER:And, I guess, weÓre, our task is to make a recommendation on to the County Council. We have a County Council member present at our table. IÓm not sure that we can answer all of the questions here today, but I would hope that the discussion would continue at the Council chambers. FUJIKAWA:Go ahead, Councilman Tyler. TYLER:Thank you very much, Mr. Chairman. Thank you, Commissione Springer. Indeed, it will. My suggestion, which I made earlier, is that we should continue it before it comes to the Council so we can talk with the Director, talk with Mr. Fuke, who represents the Malians, myself, people like Uncle Kino, George Kahananui, who has great knowledge of the homestead road and possibly the Alanui Kauila. Certainly, I know Mr. Freitas, Mr. Bobby Freitas, whose 14 bit of this land in this area and who lives off of Ahiahi Street, probably can shed some light on this as well. But I think itÓs important that, even before the Planning Committee level, that we have some discussion on this. Because I agree with the Director, Director Yuen, that the deed reservation would seem to indicate that itÓs not just an easement, although Mr. Fuke and I have had discussion and we agreed to disagree perhaps on this, although weÓve never come to that point. He just presented it to me. I also believe that there may have been some precedence with respect to the subdivision to the south, Kona Hills, and perhaps the subdivision two parcels to the north, that is to say, Kona Acres. There may have been a realignment. Because if one looks at Alanui Kauila on the tax map, it goes quite far north, and it runs through many ahupuaÒa, and continues quite a distance. And, in fact, it is called Kauila Street in the Coast View/Wonder View area. In some cases, there are different elevations and they donÓt connect for various reasons, but it is there. And Commissioner Springer perhaps could shed some light on this but the Alanui Kauila, you know, maybe it was Kaauila, I mean, and itÓs now being mis-spelled. I donÓt know, maybe it referred that area because that spelling would seem to indicate that. But there seems to be some recollection by some that IÓve talked to that the Alanui Kauila, or the Kohanaiki Road as itÓs known further to the south, did involve vehicular traffic. And Uncle Kino or George Kahananui, resident mauka of here, told me the other day that the old homestead road went all the way down. In fact, I think his property borders the Mamalahoa or Highway 190, mauka of this. So I donÓt know whether thatÓs helpful or not but -. FUJIKAWA:Go ahead. FUKE:Mr. Chairman, just two comments. First, in terms of the ownership question, all I can rely on is whatever has been provided me by the Applicant and the ApplicantÓs representative, as well as information that I received from your staff in terms of the adjoining property owner and how the roadway was treated. If you were to look at the, you know, the zoning map thatÓs prepared, the proposed zoning map, to the south of the subject property, you see that Hamo Street, thatÓs the Kona Hills Subdivision. And then youÓll see like a north-south roadway, you know, kind of like a wiggly line, thatÓs the Alanui Kauila Road that it has been referred to. Well, when that subdivision, that Kona Hills Subdivision was created, that same roadway issue was raised. And the State, back in 1994, wrote back to the developer and essentially stated, and IÓll just read it, two short paragraphs: ÐThe Engineering Division of the County of Hawaii recently inspected the subject site and informed us that the road shown on the tax map asÑ dotted over line, Ðdotted line over Parcel 37 does not really exist on the ground. They also informed us that roads and the properties abutting north and south of Parcel 37 are blocked from entering into Parcel 37. Our staff abstractor recently completed a title search to determine the ownership of the subject roadway or easement, no documents of record were found showing this road, this subject roadway or easement to be a government road. Therefore, the conclusion is the ownership of the roadway or easement is held by the owner of the property.Ñ And that was a letter from Mason Young, the Land 15 Management Administrator to a Mr. Harvey Kodama, who was the trustee for the Kona Hills Estate. Notwithstanding that and, you know, we donÓt want to concede that itÓs a government road or not a government road. But I think just purely from a land use standpoint, you know, weÓre suggesting that itÓs an appropriate land use. And if it is an issue that has to be addressed relative to the name or like getting further consent from the government, you know, be it the State or the County, you know, that can be done in conjunction with the subdivision process. SPRINGER:Mr. Chair? FUJIKAWA:Go ahead, Commissioner Springer. SPRINGER:Going from roads to plants but maybe Kawila can be the segue. On page 3 of the Background Report, under Item 15, Flora and Fauna Resources, there is no mention of the native species which are mentioned in Dr. RechtmanÓs report which include the lama and the alaheÒe. So just for our own reading, our Background Report, page 3, No. 15, doesnÓt pick up the species that Dr. Rechtman lists in his archaeological report; and those specifies are lama and alaheÒe. FUJIKAWA:Are there any other questions from the Commissioners to the Applicant or -? Go ahead, Commissioner Graham. GRAHAM:This is not so much the Applicant but maybe Corporation C on the larger issue brought up by Judge Ibarra yesterday. It does seem like weÓre in the same ballpark as to what he was dealing with at Hokulia, where we have State ag-zoned land thatÓs being increased in density for primarily residential purposes even though, without a change in the State land use designation. So I think the specifics of this application are very different. ThereÓs more opportunity for agricultural use, thereÓs a whole pattern of residential use in the area and all. However, it does feel like the underlining issue is brought to the fore in this application as well. So I was just wondering before we issue any recommendation whether you could c what you know in just the past few days the applicability of Judge IbarraÓs determinations respective to this particular situation. MASUDA:Unfortunately, no. I havenÓt fully digested the Hokulia decision. We only got it yesterday. Just by a brief reading, though, it seems like, you know, how they say that wasnÓt specifics. I think thatÓs what distinguishes Hokulia from this case, is that itÓs in the details that it is different. But like I said, too, I donÓt think anybody, at this point, really has a grasp of what the decision is going to go, how itÓs going to be implemented later. GRAHAM:So given the details and the specifics, itÓs not uncomfortable for you if we were to move ahead and allow for this higher density, even though we are in the State Land Use Ag category? 16 MASUDA:I would say so, yeah. I think you could safely go and youÓd safely distinguish Hokulia from this case. GRAHAM:Thank you. SPRINGER:Mr. Chair? FUJIKAWA:Go ahead, Commissioner Springer? SPRINGER:With regard -. MASUDA:Wait, they also bring up another point, too. Should they come to pass that Hokulia does get interpreted the other way, of course, at Council level that could also be rectified. FUJIKAWA:You have a question, too? SPRINGER:I was just going to comment on Commissioner GrahamÓs concern. Page 1, No. 1, thereÓs a discussion on how the laws should be geared to those who are interested in doing some family-oriented or backyard agricultural pursuits, including ornamental plants and fruit trees. So, I had a similar concern when I was reading through the background material, but did feel that some of those concern the discussion by staff. TYLER:Mr. Chairman, may I comment on my personal experience with this issue? FUJIKAWA:Go ahead, Mr. Tyler. TYLER:And I have read the Findings of Fact, Conclusions of Law and Decision of Order last evening. I might add, on the record, no surprise to me because I didnÓt, I felt this was illegal to begin with, thatÓs an aside. But to his credit, the Director has shared his concern in the recommendation beginning at the bottom of page 4 and continuing about half way down to page 5; and I think he makes a very good point. But let me give you my personal experience, now being the landowner of one acre agriculturally-classified land in Kona Acres; and the Director and I have spoken about this. The Planning Department, upon submittal of my request for faxed me over a form, a farm dwelling notice, which they asked me to sign, my wife and myself as owners to sign. And in there they made it clear, to me, that the State law does not allow for a residence to be built, just a plain old residence to be built, on agriculturally-classified land, which is envisioned here. They indicated to me that the only dwelling that I could build would be a farm dwelling and that it would have to meet the requirements of HRS 205. And one of the reasons we bought the property there was, indeed, to do exactly that, was to enter into some farming. And when the Director and I 17 had a conversation about this, he was rather skeptical about Curtis Tyler and his wife being able to farm anything on one acre. He will recall the discussion. And I said, yes, I hear what youÓre saying because not many people are doing it. But we are doing it, we will do it, and we will conform to the law. Because it is what we understand and what we want to do. Now I donÓt presume to, short of growing an illegal crop which I will not do, I donÓt presume to make a living on this. On the other hand, it might help pay the taxes which are incredible on a piece of vacant land down there, itÓs unbelievable. I think itÓs $1,700 a year now. ThereÓs nothing on it, except for, you know, what w So, I say this because I think the Department now, as a result o decision, as a result of other decisions, the Department is well aware of this, and they are making the Applicants aware of this. And IÓm sure that Mr. Fuke, as the land use planning consultant for the Malians, as well as the others who are sitting in the back of the room, are well aware of this. Indeed, it appears to be a quandary for some. But for those of us who understand the law, I think it is a wonderful opportunity to promote agriculture. And let there be no mistake, Class C and D soils bear no resemblance to the agricultural productivity of the property in Kona. The limiting factor is how much elbow grease you have and how much ua is available, how much, you know that for a personal experience -. And I commend the Director fo obviously, when he wrote this, he didnÓt have the benefit of seeing the Hokulia decision in front of him. So, he, too, understands this. Thank you, Mr. FUJIKAWA:Okay. Thank you very much. Is there any other questio the Commission to both persons down there, Mr. Fuke and Curtis Tyler? None? Do I hear, entertain a motion? KUBOTA:Mr. Chairman? FUJIKAWA:Go ahead, Commissioner Kubota. KUBOTA:I move the Change of Zone application, REZ 03-015, be giv favorable recommendation and be forwarded to the County Council, along with the recommendations and the conditions set forth by the Planning Department. SPRINGER:Second. FUJIKAWA:It has been moved by Commissioner Kubota and seconded b Commissioner Springer that this application, REZ 03-015, Change of Zone application, be forwarded to the County Council. SPRINGER:Mr. Chairman? FUJIKAWA:Go ahead, discussion. 18 SPRINGER:As some of my colleagues may recall, I have had difficulty in the past approving of ag subdivisions that appear to be residential in nature. But given Mr. TylerÓs testimony with regard to the effort being made by the Department now to inform applicants, I have greater confidence in approving applications of this sort. So kudos to the Director. FUJIKAWA:Very well. Any others? Go ahead, Commissioner Graham. GRAHAM:Excuse me for belaboring things. Is there any reason we would want to make any addition to our motion indicating Mr. HaÓs concerns or do you think thatÓs all well taken care of, kind of off the record with our discussion -? FUJIKAWA:I think itÓs taken care of well. GRAHAM:Okay, thatÓs fine. FUJIKAWA:Staff, go ahead. DARROW:Commissioner Kubota? KUBOTA:Aye. DARROW:Commissioner Springer? SPRINGER:Yes. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Mina? MINA:Aye. DARROW:Commissioner Smith? SMITH:Aye. DARROW:And Chairman? FUJIKAWA:Aye. DARROW:The ayes have it, six to zero. FUKE:Thank you very much. 19 FUJIKAWA:YouÓll be informed by the County. Thank you. The discussion ended at 2:20 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 20