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HomeMy WebLinkAbout2007-09-21 TD-BAR PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT SEPTEMBER 21, 2007 D-BAR RANCH, LLC (SMA A regularly advertised hearing on the application of 06-000009) was called to order at 10:42 a.m. at the Waikoloa Beach Marriott, Alii I and - II, 69275 Waikoloa Beach Drive, Waikoloa, Hawaii, with Chairman William Graham presiding. PRESENT: William Graham ABSENT & EXCUSED: Rene’ Siracusa C. Kimo Alameda Rodney Watanabe Takashi Domingo Andrew Iwashita (left at 12:08 p.m.) Shelly Ogata Alvin Rho Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Jhq`mDlkdq+Qdoqdrdms`shudneCdo`qsldmsneOtakhbVnqjr And approximately 11 people from the public in attendance. APPLICANT: D-BAR RANCH, LLC (SMA 06-000009) Further proceedings on remand pursuant to State of Hawaii Third Circuit Court decision on appeal in Civil No. 06-1-172K regardingapplication for a Special Management Area (SMA) Use Permit to allow the 120-unit condominium project and related uses. The property is located between Alii Drive and the proposed Kahului-Keauhou Parkway (aka Alii Parkway), mauka of the Kona Magic Sands Condominium and north of the White nd Sands Beach Estates Subdivision, Pahoehoe 2, North Kona, Hawaii, TMK: 7-7-8:21 and 23. GRAHAM: Our next agenda item is under Unfinished Business. The applicant is D-Bar Ranch, LLC. And this is a further proceeding on remand pursuant to the Third Circuit decision on appeal Civil No. 06-1-172K in regards, on application for a Special Management Area Use Permit to allow a 120-unit condominium project and related uses. The property in question is located between Alii Drive and the proposed Kahului- Keauhou Parkway, also called Alii Parkway. It’s mauka of the Kona Magic Sands Condominium and north of the White Sands Beach Estates Subdivision. It’s in the nd ahupuaa of Pahoehoe 2, North Kona, Hawaii, TMK: 7-7-8:21 and 23. We did hear this EXHIBIT B 1 application quite a while ago. We voted, at that time, a denial of this application. That vote was appealed by the applicant to the Circuit Court; and the Circuit Court has remanded it back to us; and maybe I’ll leave it to Mr. Torigoe when he wants to explain a little more clearly the basis for the remand. This did come up to us on a prior agenda item recently, but because we didn’t have all the final court documents that sort of made it right for us to proceed with it, we’ve continued it till today. So that’s the general background. Jeff, could you give us a little more, please. DARROW: Thank you, Mr. Chairman. You covered the majority of it but if I can just give a brief presentation. If I can direct the Commission’s attention to our location map. The area of this application is within the North Kona District. More specifically, we’re looking at Alii Drive, running in a north-south direction. We have the proposed Keauhou to Kahului Parkway or the Alii Parkway running through the middle of the map. And on the top we have Kuakini Highway, again, all running parallel in a north-south direction. The red line through Kuakini Highway is the Special Management Area line. The application is located makai of that line and is within the Special Management Area. The area of the application is identified with a blue dot. This is in between Alii Drive and the Keauhou to Kahului Parkway. This is located mauka of the Kona Magic Sands Condominium, just south of the Magic White Sands Beach; and, again, it’s identified with a blue dot. The brown on the map illustrates the zoning for this property, which is Multiple Family Residential 3,500 square feet. The applicant in this case, D-Bar Ranch, or D-Bar LLC, is requesting a Special Management Area Use Permit to allow 120 condominium units. These will be proposed 15 two-story structures identified in yellow on the applicant’s plot plan. The applicant is proposing to have a height limit of 35 feet. This will also include related uses such as parking and other infrastructure uses. Access at this time is proposed from Alii Drive identified on the lower portion of the map. On the upper portion of the map you do see the proposed Kahului to Keauhou or Keauhou to Kahului Parkway. That’s just above this project. Again, as the Chairman had mentioned, on August 25, 2006 the Planning Commission had denied the applicant’s request for a Special Management Area Use Permit. The applicant had appealed that decision to the Third Circuit Court, and it has been remanded back to the Planning Commission for further proceedings. The applicant has, since the Third Circuit Court appeal, the applicant has submitted a cultural impact assessment study. This is dated April 24, 2007. Additionally, there is a memorandum to Sidney Fuke from Tom Nance. The subject is “Adverse Impact of the Proposed White Sands Project on Nearshore Water Quality,” this is dated June 25, 2007. And, lastly, we have a Traffic Impact Analysis Report that is dated June 2007. Lastly, our last Planning Commission hearing on this matter was continued because the Planning Commission did not receive the Findings of Fact, Conclusions of Law and Order reversing the decision; and since our last hearing we have received a copy of that. That is, the file date on this is August 24, 2007; and that should have been distributed to the Planning Commission Thank you, Mr. Chairman. Are there any questions? EXHIBIT B 2 GRAHAM: Commissioners, do you have any questions for Jeff at this time? All right. Thank you, Jeff. My inclination at this time, we have one public testifier signed up. I feel like once we bring the applicant forward and we start doing our, you know, interchange, we could be going with a lot of detail, maybe legal issues, whatever. So I’d be inclined to ask for public testimony now so that this person could come in and we can hear what they have to say. Is that okay with the Commission? COMMISSIONERS: Yes. GRAHAM: Okay. So the public testifier I have is MerryAnne Stone. And if anyone else would like to give public testimony on this matter please go to the end of the table and sign up; and they’ll let me know. Ms. Stone, could I swear you in first. STONE: Sure. GRAHAM: Could you raise your right hand and -. Do you swear or affirm to tell the truth on this matter before the Commission today? STONE: I do. GRAHAM: Thanks. And give your name and address, and then just carry right into your testimony. STONE: Good morning, Mr. Chairman and Members of this Commission. My name is MerryAnne Stone. I live at 77159 Kaipoi Place in White Sands Subdivision. And I came before your counsel the last time when D-Bar Ranch tried to get approval with this. This is a huge impacted area. They’re planning on putting 120 condominiums, I believe they’re two- and three-bedrooms. The traffic that’s going to be resulted from this is going to be horrible. At one point when they proposed their project before, they were quite proud in saying that they want to make it a pedestrian-friendly type of park or project so that the folks that are staying in the condos can go to the beach easily and they have direct access. Pahoehoe Park and also White Sands Park are so heavily trafficked at this point. We have no parking for the people who are there. During the weekends both sides of Alii Drive are stacked with cars.White Sands parking lot is also stacked with cars. This project spoke about using the existing paved area in front or to the south of the pumping station. And right now there is, already cars, many cars parking in there on a continual basis, just because there is not enough parking in all of the condominiums and at the park. And what I’m hoping is that you will understand that. Again, I don’t believe that this condominium is providing anything, amenities for the people in the project. I sort of wished I could have heard from them first so I could have had a refresher course on their project because it has been almost a year. Wasn’t it August of 2006 you mentioned that we were here? And so it would seem like a project of this size would have a swimming pool or recreation gathering center. The way I understand it, they do not. So all of these folks are going to be using the beach exclusively for any type of recreational activity. I think that this is irresponsible for the developer to do this. EXHIBIT B 3 I’m sorry that my neighbors couldn’t be here. I know several neighbors would have liked to have been here. Perhaps if it had been in Kona that would have been a little bit easier for them. We talked about cultural impacts. And then I also wanted to talk about the sewer impact. From what my understanding is that this complex is going to put a huge strain on the already existing issues that we have with the sewer project. I also want to say that, for the Commission, I think it would really be beneficial if you were provided with a better map than what that has to do, because Alii Drive impacts all of Alii Drive. And there are many other projects that are coming on that are going to be directly over- using Alii Drive. Look at all of our condominiums that we have. Everybody is parking on the street, and there are no sidewalks.So I’m just asking that before you move forward with this you ask the developers if they could do something about providing more parking on their project and also some recreation facilities for the people who are going to be living in their project. I guess that’s all, but I just wanted to thank you for the opportunity to speak with you today and hope that you will refrain from approving this at this time. Thank you. GRAHAM: Thank you very much for your testimony. Any questions from the Commissioners? All right, thank you. STONE: Thank you. GRAHAM: I know, before I bring up the applicant, one of the other procedural steps we need to take today is to, we do have a ruling from the Court remanding this back to us. So we do have the option to ask Mr. Torigoe to appeal the Court’s ruling. So I think maybe that’s sort of around a little business that we can do before we bring the applicant forward. So if there’s anyone who wants to speak to that, or would you like to hear from Mr. Torigoe first, or how does the Commission want to handle that? Maybe I’ll start with Mr. Torigoe then. TORIGOE: Okay, thank you, Mr. Chairman. I guess, are you asking me to summarize the ruling at this point? GRAHAM: Well, I guess what I’m asking, yeah, perhaps you should do that. And also the Commission has got to decide if they want to appeal this ruling or not; and so if you have some comments on whether you think it’s appropriate for us to appeal, or likely to be successful, or whatever, we welcome them also. TORIGOE: Okay. Thank you, Mr. Chairman. The decision from the Third Circuit Court was filed August 24, 2007. A judgment also was recently filed. So jurisdiction has been returned to the Commission. Basically the Court did not reach the merits of the appeal. But on the procedural grounds the Court felt that the requirements of HRS Section 91-11 and your Rule 4-23 were not sufficiently followed. And basically the Court says that there should be, as said under Rule 4-23, whenever Commission Members who are going to be making the final decision have not heard and examined all the evidence, there ought to be a proposal for a decision, basically a proposed findings and conclusions and a decision, that is placed before the parties and the parties given an EXHIBIT B 4 opportunity to file exceptions and to present argument to the Commissioners, and to point out to the Commission the parts of the record that should be considered. And then the Commission can go ahead and make a decision. Also, it should be kept in mind that the parties can agree to waive any part of those procedures. Historically the Commission has treated the Director’s recommendation as kind of a proposed decision and has proceeded on that basis. And that’s one of the things that parties could also agree, you know, is to say okay we’re going to use the recommendation as a proposed decision. So basically as the Chair has stated, there are a couple of things that need to be decided. One is whether an appeal should be taken. Whether or not to do that is probably something that if you have questions of me as to the advisability of that it should be asked in executive session.But, you know, you know what basically the Court is asking, the Court is basically asking that we adhere a little more carefully to Rule 4-23 and HRS 91-11. You know, there’s not much I can say against that. So, I guess, Mr. Chairman, maybe if you can see if anybody is inclined to want to appeal, then if there isn’t any such inclination that we just leave it at that. GRAHAM: Fine. Thank you, Mr. Torigoe. Commissioner Woodward? WOODWARD: Yes, Mr. Chairman. Mr. Torigoe, as I understand it, this is being remanded to us basically on procedural issues. And I would think it would be foolish to appeal procedural issues. We ought to argue on the facts of the case, rather than trying to appeal a procedural decision. GRAHAM: Go ahead, Mr. Torigoe. TORIGOE: Thank you, Mr. Chairman. Well, you know, if there was a really, what shall we say, if there is a procedural decision from the Third Circuit Court that you felt was really difficult to live with or that you felt was just plain wrong, then you could appeal the procedural issue. At this point basically the Court is saying just be more careful with Rule 4-23 and 91-11 and proceed to the merits. GRAHAM: Thank you, Mr. Torigoe. Commissioner Woodward? WOODWARD: Well, I would like to move that we go into executive session so that we can get a candid recommendation from Mr. Torigoe about the best way to proceed. GRAHAM: Well, Mr. Torigoe suggested that we can do that. Mr. Torigoe suggested we see first if there’s anybody that has an inclination to appeal. If there’s nobody that has an inclination to appeal then probably we don’t need to do that now. If we want to go executive session about some other issue later, we can always do that. Is that okay? WOODWARD: Okay, that’s fine. EXHIBIT B 5 GRAHAM: Okay. Are there any of the Commissioners that would like to make a motion that we appeal the Court’s decision? All right, I think not. So going on Mr. Torigoe’s suggestions, and since we don’t have any motion to appeal the Court’s decision, I think we’re going to go forward in recognition of that decision. Mr. Torigoe? TORIGOE: Okay, in that case then we need to move on and, hold on a second. Okay, there are a couple of things that need to be dealt with. One is that the, as you noted, the applicant has offered some further evidence; and so you need to make a decision on reopening the hearing and taking that new evidence, whether you feel that that’s something that ought to happen at this point. And as you move into decision- making you will have to, again, pay closer attention to Rule 4-23 and see what nature of proposed findings, if any, the parties would like to have before them, before the decision- making goes forward. GRAHAM: Okay. And the way I understand that is we do have information that has been submitted that relates to the substance of the application, so we really should reopen the hearing. And so probably before I bring the applicant forward here we should make a motion and choose to reopen or not to reopen. Is that correct? TORIGOE: That would be procedurally appropriate. I’d note that the Court seemed to express a desire to make sure that the parties were apprised of all of the issues, you know, that, or issues that the Commissioners may have, questions that the Commissioners may have, and that the parties, particularly the applicant, be given an opportunity to respond to those. And so to the extent that the evidence that’s being offered is responsive to the Commission’s issues or concerns then it probably would be appropriate to reopen the hearing and take that evidence. GRAHAM: Thank you, Mr. Torigoe. Could I have a motion to that effect from any of the Commissioners? WOODWARD: So move. GRAHAM: All right, Commissioner. Do I have a second? DOMINGO: Second. GRAHAM: Okay. So Commissioner Woodward is moving that we reopen the hearing for the specific purposes, I believe, that Mr. Torigoe has outlined; and that motion has been seconded by Commissioner Domingo. Anyone have comments on that? Jeff, you want to take a roll call on that motion, please. DARROW: Thank you, Mr. Chairman. The motion before us is to reopen the hearing. With that I’ll take the roll. Commissioner Woodward? WOODWARD: Aye. EXHIBIT B 6 DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: And Mr. Chairman? GRAHAM: Aye. DARROW: The motion passes seven to zero. GRAHAM: Thank you, Jeff. So I think we’ve taken care of the procedural issues that need to come before we go further. So I think it’s now appropriate for me to ask the applicant and applicant’s representative to come forward. (Discussion amongst Chair, Corporation Counsel and Mr. Yuen regarding seating arrangement.) GRAHAM: Would you folks, we’re just having a little side background here, excuse us, please. Would you folks please raise your right hand so I can swear you in first. Do you swear or affirm to tell the truth on this matter today before the Hawaii County Planning Commission? TESTIFIERS: Yes. GRAHAM: Thank you. Before we go any further with testimony about the merits of the application, Mr. Yuen, sort of officially as the Planning Director is kind of a party to what we’re doing today, as he generally is when we have a decision-making application. But he generally sits up here at the table. Is there any objection to him continuing to sit here at the table as he is? EXHIBIT B 7 VITOUSEK: No. GRAHAM: Okay, thank you. So go ahead with your presentation and submittal of evidence, or however you’ve deemed appropriate at this time, and begin with your speaking with your name and address, please. VITOUSEK: Sure. Chairman Graham and Members of the Commission, I’m Randy Vitousek and my address is 75-170 Hualalai Road, Kailua-Kona. I handled the appeal on behalf of D-Bar. I’m not here to represent the applicant with respect to this SMA application or with respect to the merits of it, but to address any procedural issues that came out of the appeal and going forward. And so in that light I would like to, just to supplement what Mr. Torigoe said and point out that what Chapter 91-11 and your Rule 4-23 say is that if all of the members of the Commission who are voting had not considered all the record and if the decision is adverse to a party, then you have to follow the procedure where there’s a proposed decision. And what happened before was although we were not following formal contested case hearing procedures the Planning Director had recommended approval of the application and, of course, the applicant was asking for approval but the Commission’s decision was to deny, and it was therefore adverse to a party. And so because it was adverse and because there’s a party who would have a right under your rules to get judicial review, that’s why you have to go through the procedure of having a proposed decision. And so what could happen today presumably is if the Commission votes to approve the application then it could treat the Director’s recommendation as a proposed decision and just issue a decision, because the decision is not adverse to any party. In other words, there’s no party that would appeal that decision cause the Director’s recommendation was favorable and the applicant, ruling granting the application is not adverse to the applicant. If the Commission decides to deny the application then it would have to follow a procedure of issuing a proposed decision that would have to be served on the parties; and the parties would have an opportunity to argue that decision to the Commission. So I just want it to be clear that, you know, my role has been on the appeal. My role is concluded for the purposes of this proceeding by explaining what my understanding of the Court’s ruling is and my understanding of what the options facing the Commissioners and the applicant are today. Thank you. GRAHAM: Thank you, Mr. Vitousek. Let me kind of sum what I think, is that last time we voted to deny but we did not have specifically before us findings of fact and whatever in support of that denial. We did have the Planning Director’s recommendation for approval at the time. After we voted to deny, Mr. Torigoe prepared based on the record and what he heard in the hearing a proposed findings of fact, decision and order and such. And so we do have that already.Since that time because a lot of the testimony received and some of the Commissioners, I know Commissioner Iwashita and myself at least, spoke to the access to the beach park issue a lot - and Mr. Torigoe did not have that in his proposed findings and all - I did submit as Planning Commission Chairman some comments to Mr. Torigoe that I thought should have been included. And so he has prepared sort of a new set of findings of fact kind of in line with the Planning EXHIBIT B 8 Commission’s prior action to deny, but which also are somewhat supplemented by access-oriented issues. So it seems like kind of what we have before us is maybe if we vote to approve we have the Planning Director’s recommendation and that conditions therein. To deny, if we vote to deny we have both what Mr. Torigoe created last time and submitted to the party, as well as the Court about the findings of fact, decision and order, whatever, of the Commission. And then we have a new one which he has created which is somewhat supplemented to include access issues, which I kind of asked that he try do. So I think we have those three things before us. I don’t know that this new one has been distributed yet. But, Mr. Vitousek, would you care to comment on my portrayal? VITOUSEK: Yeah, sure. I’d, you know, I would be somewhat troubled by the idea that the Commission drafted a decision before it voted; but what the rule requires is that a proposal for a decision be drafted and be served on the parties, and that the parties have the opportunity to comment on it. And that has not, that hasn’t occurred. The parties have not been served with a proposed decision. So I think that the procedure, you know, that I’m familiar with that’s certainly followed by other boards is that the Board (sic) would make a vote and indicate what its decision is, and then proposed decision and order is drafted and circulated to the parties, and the parties have the opportunity to comment on that and come back and argue that to the Commission, and then the Commission adopts a final decision. You know, that’s certainly the procedure that the Board of Appeals routinely follows and other, and the Board of Land and Natural Resources and other agencies. GRAHAM: Okay, so if I understand you correctly then, Mr. Torigoe has formulated a newer version, then you’re saying that should be served on you folks. And that if we in fact vote, but if in fact vote against the application, you know, we could at that time if we choose when we vote to use these, we would serve them upon you, and then you would have a chance to rebut them either today or at some continued hearing? Is that the general gist? VITOUSEK: Well, yeah, what I believe is I believe that the Commission has not made a decision yet -. GRAHAM: Of course. VITOUSEK: And so I think that the Commission has to make a decision, and then someone has to draft a proposal for a decision. And then, I mean, the Commission has to give an indication of what its decision is, and then a proposed decision has to be drafted and circulated to the parties; and then they have the opportunity to comment on it, and then a decision is adopted by the Commission. GRAHAM: Good, I think I understand you clearly. Commissioner Iwashita, you had something to offer? IWASHITA: Thank you, Mr. Chair. I don’t necessarily agree that there hasn’t been a decision in this case. There was a decision, it was appealed. It has been reversed EXHIBIT B 9 and remanded on a technical basis that Mr. Vitousek has described, our counsel has described. I think we all understand that, you know, basically the Court has said you should have given the applicant the findings of fact and conclusions of law and then had a further hearing before they were formally made a, before it was made a formal part of the record, and the decision was entered based on that. Right? And that was the problem, is that in this case is that the Commission did not provide the applicant with the findings of fact and conclusions of law, and give the applicant an opportunity to state objections and so forth on the record, and for the Commission to consider before it finalized its decision under 91-11. So, you know, and now it’s back to us. So as far as I’m concerned at minimum, the minimum that we could do is say, okay, here’s the findings of fact and conclusions of law, you know, and present your objections at the next hearing on this matter, and then we’ll look at them, and then we’ll vote to either finalize or maybe we’ll change our mind. But, to me, I believe that that’s, you know, procedurally that’s how this application stands, is that the Commission has voted on a motion to deny, that decision has been set aside because of a failure to follow the procedural requirements of 91-11, and remanded back to us with instructions to comply with the requirements of 91-11. That does not inherently, you know, so, and there’s a record, there’s still a record. Right? It’s not like we have no record. Right? We still have a record; and the vote previously is part of that record. So, you know, I think that my preference would be that unless there’s some objection from the Commission Members that the proposed findings of fact, conclusions of law and, you know, which properly reflects the rationale of the Commissioners when we voted originally on this matter, that that be submitted to the applicant, that this matter be reagendized for the next meeting, give the applicant an opportunity to make objections on the record. And then we can proceed from there, whether or not we want to continue with the adverse action to the application, or if given the objections we want to reconsider and, you know, give it a favorable recommendation or approval. GRAHAM: Commissioner Iwashita, if I understand you correctly, the way you’re differing and what Mr. Vitousek came forward with is I think Mr. Vitousek was feeling that we would do another vote on the merits of the application and then we could choose to use these findings of fact at the time of that vote if we voted to deny. And maybe you’re saying you think it’s inappropriate for us to vote on the merits today but that today we should just officially pass some findings to the applicant and then do a merit-based discussion and vote next time? IWASHITA: I was, let’s try to be clear. To me we’ve already voted, the Commission already acted. It went up on appeal, it was reversed on a procedural issue that was raised by the applicant, you know; and the Court says you have to comply with this procedure. Right? So to the extent now that we’re applying 91-11 and there are Commissioners present today that did not vote before, right, then maybe we need to have another vote. But to me it’s not technically correct to say there has been no vote on this matter. There has been a vote on this matter. So, you know, it’s a matter of how, as far as I’m concerned if there are Commissioners that want to proceed and have a vote now, EXHIBIT B 10 fine. But I don’t think that it’s correct to say that there has been no vote. The Commission has acted and we can submit the findings of fact and conclusions of law, given that initial vote, and say here submit your objections. GRAHAM: Okay. I think I understand you better now. Mr. Torigoe, do you have a comment? TORIGOE: Yeah. I need to go back to the specific language of 4-23 which is saying essentially the same as 91-11, HRS. I think basically the effect of the Court’s decision really is to take us back to the moment before the decision was made. Because the rule says that the decision if adverse to a party to the proceedings shall not be made, shall not be made, until a proposal for decision containing a statement of reasons and a determination of each issue of fact or law necessary has been served upon the parties and an opportunity has been afforded to each party adversely affected to file exceptions and present argument. IWASHITA: I agree, Counsel, that basically what 91-11 is saying or the language you quoted is saying is that if there’s going to be an adverse decision to an application at that point then we have to say stop, okay, do the findings of fact and conclusions of law and all that. But on the record the decision was made. It doesn’t mean that, the Statute doesn’t say that that decision didn’t happen. See, that’s the triggering event. That is the triggering event. When the Commission votes on a motion to deny and there are five members at least that say, okay, we’re going to deny this, that’s the triggering event that requires providing of the findings of fact and conclusions of law. The issue, so to say that the effect of this appeal is to wipe out that vote, I don’t think that that’s correct. The Court said because you voted, you know, to deny the application, you had to submit the findings of fact and conclusions of law, you know, to support your position and give the applicant an opportunity to object, make objections on the record, and maybe it would change your mind. And then you had to have another meeting and had to come up again in order to finalize it, to follow that procedure. That’s my understanding. And to say that we didn’t vote on this or we have to act like we didn’t vote on this, that’s not correct. I mean that was the whole basis of the appeal that we did vote. You know, and it’s just that post-vote procedure that was objectionable. GRAHAM: Okay, thank you. I don’t think we have too much of a dispute or quandary in going forward, if I understand what’s going on correctly. So maybe I could pass the ball back to Mr. Vitousek and the other applicants here. VITOUSEK: Yeah, I think that what the, I mean the reason that the rule is there, the reason that the Statute is there is essentially due process and fairness. And that is if the Commission is going to make a decision that’s adverse to a party before they make that decision there’s a process to be followed. And what the Court said was that process wasn’t followed. And so the Court vacated the findings of fact and reversed the decision of the Commission. So there is no decision of the Commission. The Court said that before you make a decision you have to go through a process to assure fairness to the applicant. You’ve also voted this morning to reopen the hearing. And so it seems like, EXHIBIT B 11 you know, where we are is that the hearing is reopened, no decision has been made, and, you know, you go forward to allow or not allow whatever additional evidence Mr. Fuke wants to present on behalf of the applicant; and then the Commission makes a determination of what direction it wants to go with the application. And if it is adverse to the applicant or to a party to the proceeding, then you have to go through the proposed decision, the format as set out by your rules. That’s, I think that’s where we are. GRAHAM: Thank you, Mr. Vitousek. Commissioner Iwashita, did you have any -? Commissioner Woodward, let me start with you. WOODWARD: Well, I would agree with one point you made. We did reopen the hearing and we have taken public testimony which is adverse to their position. So it would seem to me that out of fairness, if nothing else, we should hear the other side of the story. GRAHAM: Commissioner Woodward, I understand that. We take public testimony on every agenda item, so that’s kind of why I did that at the time also. Mr. Yuen, do you have something to offer? YUEN: Yeah. I don’t want to tie the Commission up, meeting further on procedural things. But this is an interesting question because it is something that will come up when the Commission decides, when the Commission wants to deny an application when there is no intervenor opposed to it, the Department is favorable, and of course the applicant is favorable. And the Commission has every right to do that. That’s what you’re here for. You get to vote, you get to make the final vote. The question is really what is the correct way to do that in a situation where all the Commissioners, where it has been continued for meeting to meeting and all the Commissioners were not here to hear the evidence. And then in that case you have to make the final decision, you have to prepare, there has to be these formal findings prepared. And typically that won’t be here because the Commissioners, because there has been no party to prepare them, to bring them to the Commission. So the only practical way to do it is for the Commission to take what is in effect a preliminary decision to deny the application, stating its reasons on the record, and directing the Department to work with the Commission’s attorney to prepare formal findings of fact, conclusions of law, and a decision and order adverse to the application along with the reasons given, and on the basis given by the Commission in its discussion. Then we will do that probably with the Commission’s attorney taking the lead, submit that to the party, the applicant, and then the Commission then does have to take a vote on that formal document for it to be a final decision. So in this case there has been a vote and, but there has been no final decision. And we’re going to have to make that two-step. The options for the Commission today are essentially as Mr. Vitousek says, the Commission can vote to change its mind and vote to approve. In the case of an approval, the approval could follow the lines of the Planning Department’s revised recommendation with possibly additional conditions as desired by the Commission. In the case of a denial, essentially the Commission would be reaffirming its preliminary denial that was issued before and then it should simply direct EXHIBIT B 12 the Commission’s attorney to finalize a set of findings of fact, etc., serve them on the parties, and then we would have a final vote on those at the next opportunity, the next meeting that we have a chance to do that, after giving the applicant a chance to file their exceptions to that. So a denial does take a two-step. We’re not in a position to make the second step today. GRAHAM: Thank you, Mr. Yuen. ALAMEDA: Mr. Chair? GRAHAM: Commissioner Alameda? ALAMEDA: Thank you, Mr. Chair. I have a question then for Mr. Yuen. I cannot recall, in the past, have we denied an application and there were no intervenors and it was against the Department’s liking, but yet -. I don’t remember it coming back like this, that’s why. And I think we have denied in the past, it just hasn’t -. YUEN: I’m searching my memory, but there are a couple of possibilities if it has happened. One is that the applicant didn’t file an appeal; and the second is, I’m not sure, correct me if I’m wrong, Mr. Torigoe, but this two-step does not apply if it all happens at one meeting. TORIGOE: Yeah, that’s correct. YUEN: Okay. So if it all happens at the same meeting, you have one meeting, you hear everything and you take a vote, then that stands as a denial, and it’s not necessary then to bring it back as a, to rule on separate items. So that may explain it. I’m searching my memory and I can’t think of a parallel situation like this. But certainly in this case where it was continued and we don’t have the same people at every meeting, this is what the Court said, is that you have to bring it back for this second vote. And before the second vote somebody, you know, and the only people to do it are, there’s no intervenor to do it so the only people to do it are the Department and your attorney has got to prepare this, and send it out to the applicant, in this case, so that they can respond to it. And then we bring it back for your vote. GRAHAM: Mr. Torigoe -. Thank you for your question, Commissioner Alameda. Mr. Torigoe, do you have any follow-up? TORIGOE: Okay, if I can just really quickly summarize it. Basically we’re on- line at this point to finish the contested case, taking whatever additional evidence is appropriate. If the Commission’s inclination is to approve the application, they can do so today based on the recommendation of the Director. If there’s an inclination to deny then the Commission would have to basically vote to ask the Director, along with myself, to prepare a proposed decision to deny, which would then be served on the parties for their written exceptions and argument at a following hearing, unless they waive that procedure. EXHIBIT B 13 GRAHAM: Thank you, Mr. Torigoe. So I think we’re clear on all of that now. I also wanted to announce, I guess we’re getting close to 11:30, is we do have lunch scheduled for 12 o’clock so we’re going to break at 12. And I also have one more public testifier come in. Mr. Vitousek if you have nothing further now maybe I could bring the other public testimony in and then I could after that turn it over to Mr. Fuke. VITOUSEK: If we could just say that the applicant concurs with the Planning Director’s statement of where we believe we are procedurally and what the appropriate procedure to follow is. GRAHAM: All right, thank you. The other public testifier, I have Curtis Tyler. Mr. Tyler, if you’d come forward please. Could you raise your right hand for me, please. Do you swear or affirm to tell the truth before the Planning Commission on this matter here today? TYLER: Yes, I do, sir. GRAHAM: Thanks. And could you give your testimony, starting with your name and address. TYLER: Good morning, Mr. Chairman, Members of the Hawaii County Planning Commission. My name is Curtis Tyler and I have provided previous testimony on this agenda item, excuse me, on this proposed, on this application for an SMA project, and as I’m sure most of you who were there at the meeting will recall. My concern revolved around the lack of a cultural impact assessment. And while the Director and I have disagreed on whether or not it was needed to be done, the applicant to their credit, and I wanted to state this for the record, has arranged for a cultural impact assessment to be done. The applicant has provided me with a copy of the cultural impact assessment. I have reviewed it. And as I’ve told the applicant I am disappointed at the way it was handled by, not by the applicant, I want to make it very clear, but by the person who prepared their cultural impact assessment. I do not think that it meets the requirements of the Ka Pa‘akai O Ka‘aina case. However, it was done and I wanted to make a public statement today to the Commission that I appreciate that the applicant did this. I also reviewed the findings of fact, and conclusions of law in terms of the appeal. And I suppose that the applicant could have relied on that appeal, not to have done a cultural impact assessment if they wished; but they choose not to go that route, and for that I’m grateful. I continue to have concerns about the impacts on the cultural resources that are there; and the fact that people who are familiar with these were not interviewed is a problem for me personally. And I just needed to tell you how much I appreciate what the applicant has done to try to comply with what some of us understand the Supreme Court decision on the Ka Pa‘akai O Ka‘aina case to be. Thank you. I’ll be happy to answer any questions if I can. GRAHAM: Thank you, Mr. Tyler. Commissioner Iwashita. EXHIBIT B 14 IWASHITA: Mr. Tyler, can I ask if you disclosed the names of the people that you believe should have been interviewed to the applicant or the applicant’s consultant that did the cultural impact report that you looked at? GRAHAM: Can all the Commissioners hear? IWASHITA: I’m sorry -. TYLER: I’m sorry. GRAHAM: Mr. Tyler, go ahead. TYLER: Okay, thank you. Well, I, certainly you’re looking at one of them. And there are others who are perhaps more familiar with the area than even I who for whatever reasons, and some of them are stated in the impact assessment, were not able to be contacted. My impression is that, was and is that the background information and the persons who were interviewed were really more from a different area of Kona, rather than people who would have first-hand knowledge of it or, in fact, were descendants of properties immediately adjacent to or in connection with this property, recognized descendants. So that was the point. And I don’t think it’s productive personally, sir, with all respect to your question, to get into personalities about this or individuals. It’s my impression, and I’m just giving you my impression. And I don’t want this to be a reflection on the two gentlemen sitting on either side of me because I don’t believe that they set out to have this happen at all. And I very much appreciate their efforts to try to get this done in a way that’s pono. Thank you. GRAHAM: Thank you, Mr. Tyler. TYLER: You’re welcome. GRAHAM: Anything further? IWASHITA: Just a follow-up. GRAHAM: Commissioner Iwashita. IWASHITA: Yes, thank you, Mr. Chair. My impression then of your testimony is that because of the failure to interview the correct people that the cultural impact assessment is deficient, and if anything it should be supplemented with interviews with the correct people? TYLER: No, I -. IWASHITA: And, Mr. Tyler, maybe I’ll just clarify. Because, you know, you’re correct that we’re bound by the law and the decisions of the Supreme Court in what we EXHIBIT B 15 have to consider in these matters. And if your testimony is that, you know, this cultural impact assessment is deficient, it seems to me pretty clear that it is, then what I’m trying to figure out is what needs to be done in order to meet the requirements of the law. And that’s the purpose of my question. TYLER: Thank you for the question, Mr. Iwashita. The, what I’m about to tell you is my opinion based on what I understand the Supreme Court to have said. And it doesn’t revolve completely around who was interviewed, who was not interviewed. But it revolves around the guidelines that are, the decision of the Supreme Court and the guidelines that were subsequently promulgated by the Office of Environmental Quality Control; and those are of record and it clearly states what it is that needs to be done. And in some respects I don‘t believe that the study comports with that.But I’m not an officer of the court, nor do I presume to be. I believe you are and I think you can, as well as others of you around the table who have far more abilities and knowledge to be able to properly interpret whether or not this is an adequate document that comports with the law. I’m not in that position. I am only giving you my impression as a layman based on my understanding. But I can’t give you a legal opinion about that. I’m not qualified to do so. IWASHITA: Okay, I -. Mr. Chairman? GRAHAM: Commissioner Iwashita. IWASHITA: Thank you. I didn’t mean to ask you for a legal opinion. I was just making it this way, a very respective jurist that I know once said, you know, in applying the law, right, and to me that’s what we’re supposed to do, make sure that as far as cultural impacts that we comply with the law. And I for one, you know, have a great respect for the long oral history, right, you know, of the Hawaiian civilization -. TYLER: Thank you. IWASHITA: And, but today we rely on a written record, right? So the challenge is how do we get that oral history, the cultural history, made proper in our written record. And the rules that you’ve talked about, the guidelines you’ve talked about, those are what’s being developed in order to do that. So all I was trying to get from you, Mr. Tyler, was that, you know - and I respect based on your testimony in this case and others that you have an expertise that we don’t, most of us, well, I don’t certainly, in terms of in particular for these lands involved in this application because you have been taught the history of these lands and any cultural kind of activities and so forth on those lands - that it would be important to me that someone like you and others like you who have that knowledge that it be incorporated in the cultural assessment. So that’s all I’m trying to get; and my sense is that that has not been done. TYLER: Well, I think an attempt was done. If I may respond, Mr. Chairman, I’m sorry, very briefly. I believe that an earnest effort was put forward by the applicant and the applicant’s representative here. Whether or not the end result is EXHIBIT B 16 what, whether or not the end result is sufficient I think is beyond the capability of the three of us sitting here at the table today. What I do recall, in follow-up to your initial question, is that there was a statement in the cultural impact assessment which basically said, well, some of the kupuna that we talked to said, well, to their knowledge there was no cultural activities going on on this property right now. And my recollection of the Ka Pa‘akai case, as well as the Supreme Court decision and the Supreme Court decision pertaining thereto, is that it is insufficient to say that there’s no practice now. What, one of the main purposes of this is to insure that those practices which were constitutionally guaranteed will not be compromised or further exacerbated or prevented from happening as a result of activities on the land. And that was my impression, Mr. Iwashita, that this had not been done. Just to have a statement saying that these practices do not go on is, may be a statement of fact but it is not to in any way preclude the ability for interested persons to practice traditional and customary rights on the property. And those opportunities are, if those opportunities are to be foreclosed as a result of development, then there has to be some kind of mitigation or something to that effect. And my impression is that that was not done. That’s my personal impression. GRAHAM: Thank you, Mr. Tyler. TYLER: You’re welcome. GRAHAM: Commissioner Rho. RHO: Mr. Tyler, we’re having some trouble with the microphones today, and I wanted to make sure that I heard correctly, that you and others were not consulted when this report was written? TYLER: I can’t speak for others. I saw what I read. And, I mean, I know what I read and I saw who was interviewed. And my impression was that some individuals who might have had more knowledge about that particular area, rather than Kona in general, or North Kona, or Kailua or the Kuakini Highway of which there was lots of information contained in the report, would have made for a more comprehensive and complete, more comprehensive and relevant report. That’s what I meant to say, Mr. Rho. RHO: Well, maybe you can just answer for yourself whether or not you were involved -. Were you consulted prior to this report being written? TYLER: Not to the extent that I believe I should have been; and I have told the applicant and his representative that. RHO: Do you have a copy of their report? TYLER: I have a copy of the report, an electronic copy, that Mr. Dickler sent to me; and I do appreciate that he did that. EXHIBIT B 17 RHO: And do you know whether or not your copy contains the Appendix C? TYLER: Mr. Chairman, may I check my computer here just a minute? GRAHAM: Yes, Mr. Tyler, go ahead. ALAMEDA: Mr. Chair? Mr. Chair? GRAHAM: Yes, Commissioner Alameda. ALAMEDA: I was just wondering if we could give him a copy to see, rather than check his computer for Appendix C. GRAHAM: Yeah. Mr. Tyler, we have written copies, if that would help. TYLER: Yes, Mr. Chairman, thank you. Mr. Fuke has provided me with a copy, and I have just reviewed that, yes. GRAHAM: So the answer to Mr. Rho’s question is, yes, you did receive? RHO: The reason I’m asking all of this is your name actually appears as under Appendix C as a kupuna and others consulted for information about traditional beliefs, etc. TYLER: Yes. Usha Prasad did contact me on a number of occasions, but we did not connect to do an in-depth interview, to the best of my recollection. GRAHAM: Thank you, Mr. Tyler. TYLER: She, excuse me, Mr. Chairman. She met with me regarding another project but we didn’t get into a long detailed discussion, interviews about this, as I recall. GRAHAM: Thank you, Mr. Tyler. Any other questions from Commissioners? IWASHITA: I just -. GRAHAM: Commissioner Iwashita. IWASHITA: I just want to clarify, Mr. Tyler. So you met with Usha Prasad, , Dr. Usha Prasadon another project,and you don’t recall that in that discussion that this D-Bar development was discussed? TYLER: May I respond, Mr. Chairman? EXHIBIT B 18 GRAHAM: Go ahead, Mr. Tyler. TYLER: Thank you. Dr. Prasad contacted me on a number of occasions by email, as I recall, and possibly by phone as well, to talk about this project and to obtain some information from me about with whom she should make contact. And I gave her that information and suggested she call some other people to get some further information about, because I didn’t have some of the contact information for some of these people. I also met with her I believe it was in the Office of Hawaiian Affairs conference room regarding another project, and a number of us were present there. But my recollection is that it was not specifically about this, about the D-Bar Ranch project. That’s my recollection, sir. IWASHITA: Thank you, Mr. Tyler. GRAHAM: All right, thank you, Mr. Tyler. So you can be seated. Thank you for coming forward with your testimony today. TYLER: You’re welcome, sir. Thank you all. Thank you, sir. Thank you. all. GRAHAM: So we have a few minutes left before lunch time, so Mr. Fuke or Mr. Dickler, if either of you would care to make some presentation and just begin with your name and address, please, cause the hearing has been reopened. And so I think maybe we’d want to address, we have some communications and some new material from you folks and -. FUKE: Sure. GRAHAM: Go ahead. FUKE: Mr. Chairman, if you don’t mind then, you know, we’ll take it as far as the time would allow us to. For the record, my name is Sidney Fuke. I’m a planning consultant associated with this project. My business address is 100 Pauahi Street, Suite 212, Hilo, Hawaii 96720. Seated to my left is Allen Dickler, and I guess he can introduce himself. DICKLER: Thank you, Sidney. Good morning, Commissioners. My name is Allen Dickler. My address is 75-399 Wehilani Drive, Kailua-Kona. FUKE: Mr. Chairman, inasmuch as, you know, the hearing has been opened and you do have a number of new Commissioners before you, you know, at the Chair’s discretion, you know, I would like to - at the sake of being redundant assume that the new Commissioners and, you know, probably for the existing Commissioners - provide an overall background report on the project so that the record will be much more clearer or cleaner, you know, when the Commission makes the decision. And during the course of my presentation, what I would like to do is to, with the Chair’s permission, to EXHIBIT B 19 interrupt my presentation by bringing the affected consultant that is pertinent to certain issues to come up to testify on those particular items, rather than my giving the total presentation and then calling the different consultants along the way, if you don’t mind. GRAHAM: Is that, so my understanding, Mr. Fuke, is you’d like to make a presentation now and you’d like to incorporate the consultants in your presentation as you go along? FUKE: That’s correct. GRAHAM: Is that all right with the Commission? COMMISSIONERS: Yes. GRAHAM: Go ahead then. Thank you. Be aware that the microphones or, or the speakers are pushed away, aiming away from us because of the feedback issue, so that you might have to speak a little louder than your normal way, just to be heard properly. FUKE: Okay, thank you. Initially I guess I would like to make reference to the staff’s report, the amended, the staff’s findings, their background report, as well as their proposed recommendation and conditions. And from the applicant’s perspective they found them to be acceptable. You know, they addressed almost all of the items that are normally associated with the SMA type of issues, cultural, archaeological, the groundwater, so on and so forth. But since the application was filed there have been, as your staff had indicated, a number of new information that was provided, that were provided rather, you know, to the Department to the Commission. Just to provide some overall background, again, the property was initially zoned back in 1990 and subsequently rezoned, excuse me, amended in 1994. The current Zoning Ordinance approved in 1994 was for 44 acres of land. It allowed for a maximum of 310 units. Although the property has not been developed, as you’re well aware, there were conditions relating to the setting aside or doing certain public type of infrastructure. Two most notably have already been complied with pursuant to that zoning condition. One was having the Alii Parkway set -, two plus or minus, two plus acres I think of land, of this area has already been subdivided and waiting to be conveyed to the County upon its request. DICKLER: Has been, has been conveyed. FUKE: I’m sorry, I stand clarified, it has been conveyed to the County. So that’s one item that has been done. The other item has been the setting aside of about an acre of land for the pump station that’s already operating. The land has not been conveyed to the County but it’s the-. Long-term lease? DICKLER: There’s two separate parcels. There’s two separate parcels. The parcel to the County, the deed has been drafted and given to the County to record. The EXHIBIT B 20 County has not recorded it for the pump station. There is an easement in front of the pump station, and it has been recorded to give access where the present parking is for the White Sands Beach. FUKE: Thank you. GRAHAM: Thank you, Mr. Dickler. Mr. Fuke, so I don’t have to interrupt along the way, it’s probably good if you’re going to call on someone to speak that you kind of address them by name so it’s easy for our recording. FUKE: I will. GRAHAM: Thank you. FUKE: Thank you very much. So the point being that, you know, when the project was rezoned back in 1994 there were these conditions and a lot of things have happened. So it’s not like the Commission is looking at a brand new project relative to satisfaction of obligations.The applicant purchased the property back in October of 2004. And at this point in time because of the sagging economic situation they have been searching for, they’ve been negotiating with a potential joint venturer or investment partner. In terms of like the proposed development plan, after they conducted about a year of studies they came up with a proposed concept. And that concept has been further modified as a result of not only the public testimony but some of the concerns or issues raised by the Planning Commission. So hopefully as I go through these that the Commissioners will come to get a better understanding of how we’ve tried to address, you know, the issues raised in the Commission’s original decision on this matter. It was raised earlier by Ms. MerryAnne Stone about the property not having any on-site amenities and thus would provide for further congestion, you know, to the public recreational areas. I think that was a very good point.What the applicant has proposed to do right now is to provide on-site recreational amenities. They’ll provide a minimum of an area of, 25,000 square foot recreational facility which will include a swimming pool and related facilities. We also heard the issue about parking, not having sufficient on-site parking, which could then translate to additional congestion into the public highways. What the applicant has proposed to do is that they’ll have a minimum of two stalls per units as opposed to the traditional 1.25 stalls. However, while the stalls for the basic requirement, you know, will be consistent with whatever the Zoning Code calls for in terms of the size, the backup, so on and so forth, the additional stalls, you know, may be less than conventional in the sense of allowing tandem, maybe not fully meeting the backup space. But the bottom line is that the project, each unit will have a minimum of two parking stalls. Although the zoning allows for a maximum of 132 units on the property, the applicant originally had conceded to reduce that down to 120, which is what the application right before you is now. However, because of the need to provide for this additional parking on the property and providing these on-site recreational amenities, we EXHIBIT B 21 suspect that the number of units on the property will probably be less than 120, but it will certainly not be greater than 120. We heard the concern about the potential groundwater and coastal water type of impact. The applicant is prepared to, and I guess we’ve had some discussions with the Planning Director about possibly having conditions that would relate to the type of fertilizing, I think slow-release type of fertilizer, to help mitigate potential groundwater and nearshore water of impacts. In terms of the viewplanes, as the staff had indicated, we would have the two-story instead of the three-story structures and the designs would be, you know, multiple structures, rather than one monolithic building. We were also prepared to have a condition that would stipulate that the elevation, the site plan, the site elevation would be no greater than 10 feet above the existing elevation, so that you don’t have a situation where, you know, this is an existing elevation and the person puts in like about a 20-foot high of fill and thus compromise the visual impact from the Alii Parkway. So we are prepared to have conditions that would be limiting that type of height. In terms of the archaeological issues, we’ve had the preservation of the heiau and the mauka-makai trail. Relative to the evacuation issue, the plan will be modified as the Planning Director has indicated on Condition No. 7 which allows for public emergency access through the project to the Parkway, although it would be subject to the Department of Public Works’ approval. Also, during the interim, if that roadway through the property is needed to provide for the Laaloa Street connection until such time that the Alii Parkway is constructed, the applicant is willing to allow the use of the roadway within that area. We also talked about traffic. We know, as was indicated by the Police Department and some of the other public comments, about the necessity for having a left-turn lane into the project from Alii Drive; well, that would be done. In terms of the public recreation, as Mr. Dickler had indicated earlier, and the public testifier I guess Ms. Stone had indicated, that there are people right now who are parking in that area adjacent to the pump station, but, again, bear in mind that that property is still owned by the applicant. So what the applicant would want to do is to work with the County Parks and Recreation Department and come up and -. Because they have other unimproved areas in that area, what we would like to do is to work with the County Parks and Recreation Department and come up with an improved public parking area, utilizing that area that would provide access to both the Pahoehoe Park as well as the White Sands Beach area. As I intimated earlier, we had a number of consultants hired to do, to address certain kinds of issues. We had the archaeological inventory survey which was done by Dr. Haun and his company. He had a draft burial treatment plan prepared and also a preservation plan. But rather than my going into it, I would just like to call upon Dr. Haun who’s present here today to kind of like briefly summarize his findings, and to provide the Commission with an assessment as far as like his perception on the impact, the archaeological impact, that this project may have on the project. Dr. Haun. EXHIBIT B 22 GRAHAM: That would be fine, if Dr. Haun would like to come forward. Could I swear you in, sir. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? HAUN: I do. GRAHAM: Thank you. And give your name and address as you begin your testimony. HAUN: My name is Allen Haun. I’m the principal archaeologist for Haun and Associates. Our business address is HC 1, Box 4730, Keaau, Hawaii 96749. We were contracted to conduct an archaeological inventory survey of this property, which we completed in the spring, early summer of 2005. The survey of this parcel identified 24 sites composed of approximately 350 features. These included habitation sites, three sites with burials, two sites with ritual features, a trail, a ranching site, ranching-related features, and numerous features resulting from traditional Hawaiian agricultural activity. In the inventory survey report, all of the sites were assessed as being significant for their research potential. Two sites were recommended as significant, as good site type examples that would include a trail and heiau; and five sites were additionally assessed as culturally significant based on ritual significance and/or the presence of burials. The survey report recommended no further work for ten of the sites because the inventory survey level documentation was deemed adequate to mitigate their potential loss. Data recovery mitigation was recommended for nine sites and preservation was recommended for five sites. The report and the significance assessments and recommended treatments were reviewed by the State Historic Preservation Division and they approved the report in May of 2006. The report recommended preparation of a preservation plan for the nonburial sites for review and approval by the Historic Preservation Division, preparation of a burial treatment plan for the three sites that burials were identified at, and the data recovery plan for review and approval, and then implementation for mitigation of sites recommended for data recovery. To date, the burial treatment plan was prepared and reviewed and approved by the Hawaii Island Burial Council and the State Historic Preservation Division. The preservation plan, initial draft of that, has been circulated for interested party comment; but as yet that has not been formally submitted to SHPD, nor has the data recovery plan, which would be completed in the future. Based on the conditions proposed for this permit as they pertain to historic preservation, I think those are Conditions 19 through 23, in my opinion the proposed development should not have an adverse effect on historic properties. Thank you. Do you have questions? GRAHAM: Thank you, Mr. Haun. Do we have any questions directly for Mr. Haun from the Commissioners? All right, Mr. Fuke, we’re down to about five EXHIBIT B 23 minutes or something. Would you like to take a break now or you want to go forward a little bit? FUKE: No, I think we can just finish up this next one, yeah. You know, we also understand that there was the issue like relating to the cultural impact analysis report. We did have a cultural resources management plan, but that was ultimately for its own reason deemed to be not in compliant with Chapter 343, you know, cultural impact assessment type. So as Mr. Tyler had indicated, the applicant contracted with Dr. Usha Prasad, who is here, who had prepared the cultural resources, excuse me, a cultural impact assessment. She was given instruction to prepare a cultural impact assessment that expressly complied with the requirement of Chapter 343 relating to cultural impact assessment and also to address the kinds of cultural issues that were raised by the Planning Commission in its initial position on this matter. So at this time I’d like to call on Dr. Usha Prasad to provide her direct testimony. GRAHAM: Thank you. Dr. Prasad, do you swear or affirm to tell the truth on this matter before the Planning Commission today? PRASAD: I do. GRAHAM: Thank you. And you can go ahead with your presentation; and start with your name and address, please. PRASAD: My name is Usha Prasad. I’m an anthropologist. I was asked to do the cultural impact assessment for this project. My address is 667 Old Mokapu Road in Kailua on Oahu. I’m just going to briefly say I completed this study in accordance to the guidelines that are provided by the Office of Environmental Quality Control. That’s for doing CIA impact studies in Hawaii. The other thing is that in your previous conclusions there was a request to look at Rule 9-11; and both of these things were addressed by the study. The manner in which it was done, and maybe some of this will really be answered later on, but it’s normal process for me to begin by trying to contact descendants of a land of a project area, and I had attempted to do that. And I have, there were interviews specifically completed for this study. The list of individuals are in Appendix C. Not all of them completed, not all of them provided complete interviews. Mr. Tyler was interviewed for this project and Ruby McDonald was present there, and it was at the Office of Hawaiian Affairs. And I think that in my conclusions I would just like to say to, in order to address what he brought up here, is that there isn’t a neglect for the fact that there aren’t customary rights and practices taking place on the land. There isn’t neglect of that issue. On contrary, what I think I concluded with is that those were things that need to be taken into consideration. The, well, I guess I’m getting a little ahead of myself here. Anyway, is it okay if I just ask if there are questions for me? I think most of my study here does address the issues or the concerns that the law has for doing CIA studies in the State of Hawaii. Thank you. GRAHAM: Thank you for your testimony. Do we have any questions from any of the Commissioners? Commissioner Iwashita? EXHIBIT B 24 IWASHITA: Dr., can you point out to me in your report where you just mentioned that you have recommended, made recommendations that relate to identify and protect the cultural activities on these lands? PRASAD: There weren’t cultural activities per se identified for these lands. The very first thing I tried to do, there’s a list of three original owners, possible descendants of this area, this particular parcel. The first thing was to try to locate any of these people or their descendants. That was not possible. They were not located. There weren’t specific practices associated with this land that were identified; however there are historic resources in there. So there were definitely practices that took place. What I just referred to with regards to recognizing the need or respecting the need for cultural practices and directing back to what Mr. Tyler has said, it’s in my conclusion on page 25, that even though there weren’t any direct impacts noted here, it is recommended that there be good communication with the cultural descendants of the lands. It’s also noted that the people that had step forward are being considered guardians of the land. I hope that answers you. GRAHAM: Thank you, Dr. Prasad. Anything further, Commissioner Iwashita? IWASHITA: Were you present when Mr. Tyler testified earlier today? PRASAD: Yes, I was. Yes. IWASHITA: So you heard my questions of him, you know, the concerns that he expressed. So I guess what you have not testified to thus far is the particular concern that he raised that certain people that he identified that he knows of that exists apparently were not consulted and are not on the list in your Appendix C. Can you address that point? PRASAD: That could be possible. However, I did very specifically ask him for names. It’s very routine for me to ask for names of people that I need to talk to about an area. Being that I don’t live in that area or I don’t have that history, I rely on people like Mr. Tyler, Ruby McDonald and so forth to tell me of names of who to contact. I did do that. I may not have reached everyone that he would have liked me to, but I did ask him to give me recommendations. IWASHITA: So -. GRAHAM: Go ahead, Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. So are there, my sense is right now that there are people other than those that you’ve identified in Appendix C that you were made aware of but you did not contact so they don’t appear now on Appendix C, is that correct? EXHIBIT B 25 PRASAD: No. That’s incorrect. I contacted or attempted to contact everyone whose names I was given. I didn’t always succeed in getting an interview completed and in some cases I didn’t even manage to make an actual contact. There may have just been phone message left and so forth. IWASHITA: That’s not what I’m asking. My -. GRAHAM: Go ahead, Commissioner Iwashita. IWASHITA: Appendix C, the title page says “KUPUNA AND OTHERS CONSULTED FOR INFORMATION ABOUT TRADITIONAL BELIEFS AND LAND USES IN THE PROJECT AREA.” Okay? That’s on the title page. So that tells me that the people listed on the following page, that those are people that you actually consulted and got information from. Is that correct? PRASAD: These were definitely people that I made contact with. And maybe that’s an incorrect title for me to have written the word “consulted” there. But I don’t have complete interviews or some people didn’t have any information. I don’t have that from each and every individual on this list; but, yes, everyone one of them was contacted. GRAHAM: Thank you. Further, Commissioner Iwashita? IWASHITA: I just, so right now where I’m at is taking what you’ve said now and what Mr. Tyler said earlier, is that there are people out there that you did not get information from that may, that Mr. Tyler gave you names of that may have information about cultural activities on this property that you, in fact, were not able to get information from. PRASAD: Not whose names he would have given me. Those people I would have contacted. He’s one of the most knowledgeable individuals about this property. Anybody whose names he had given me would have been probably foremost on my list to contact. I shouldn’t say probably, they would have been. There may be other names he has that I don’t have. There may be people I didn’t contact that are important too; but I did contact who he suggested. GRAHAM: Thank you, Ms. Prasad. Anything further? IWASHITA: No. GRAHAM: No. FUKE: Mr. Chairman, can I just follow-up only -. GRAHAM: Yes, Mr. Fuke. Go ahead. FUKE: Can I just follow-up a few questions with Dr. Prasad, please. EXHIBIT B 26 GRAHAM: All right. We’re all about ready to break for lunch, but we can finish up with that. FUKE: Yeah, just two questions, Dr. Prasad. One is, is the process that you followed the typical, the protocol for conducting cultural impact assessments? PRASAD: Yes, it is. FUKE: Is it generally, it is unusual to have testimony like Mr. Tyler coming up and saying, well, certain, certain persons were not consulted, and thus trying to diminish the level of credibility of your report? PRASAD: This is the first time it’s ever been at a hearing. But, you know, every so often you might have somebody in the community they’ll say, well, you didn’t talk to so and so. But, no, this is the first time I’ve had it. FUKE: Is this your first cultural impact assessment or have you done a number of them? PRASAD: No. I’ve been doing this for about 15 years. FUKE: Okay, thank you very much. GRAHAM: Thank you, Mr. Fuke. Is it okay if we break for lunch now? All right, Commissioners? IWASHITA: No objection. GRAHAM: All right. Thank you. Well, let’s see, we should get a return time. Noriko, do you have a guess for a return time? No? Maybe 1:15, something like that. Okay, thank you. RECESSED The Chair called for a lunch recess at 12:08 p.m. Commissioner Iwashita left the meeting at this time. RECONVENED The meeting reconvened at 1:24 p.m. GRAHAM: Will the Hawaii County Planning Commission come back to order, please. WOODWARD: Will somebody turn on his microphone, please. DARROW: Here we go. EXHIBIT B 27 GRAHAM: Okay, thank you. We are still considering under finished business application for a Special Management Area Permit by D-Bar Ranch, LLC; and the applicant’s representative Sidney Fuke had the floor. He was giving his presentation when we broke for lunch. So, Mr. Fuke, I’ll pass it back to you again to continue on. FUKE: Yeah, thank you very much. I had a few other questions for Dr. Prasad. But in the interest of time we have Dr. Tom Nance and Dr. Steve Dollar, and they have a flight catch so, Mr. Chair, if it’s okay with you could I kind of bring them out of order and reserve additional questions for Dr. Prasad? GRAHAM: That’s fine, Mr. Fuke. FUKE: Sure. Could I ask like Tom Nance and Dr. Steve Dollar to come up and -. Basically what they did as the Commissioners are well aware, they provided several studies, one dated March 8, 2006; and collectively they concluded that the project’s impact to the coastal water, impact would be negligible. There were some concerns raised, I think, at the first Planning Commission hearing on this matter relating to the use of herbicides and pesticides. And so at the second Planning Commission meeting we had provided an updated and specific response, you know, to that very question. Subsequent to that and the Commission’s decision Dr. Dollar and Dr. Nance both were given copies of the Planning Commission’s decision, as well as the transcript, to specifically address and respond to the concerns or the questions that were raised by the Commission. So I would like now to, you know, direct that specific issue to both Dr. Nance and Dr. Dollar. GRAHAM: Okay, good. Maybe we can go one at a time, and that way will be easier for recording. First off, could the both of you raise your right hands, please. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? NANCE: I do. DOLLAR: I do. GRAHAM: Okay. So either one of you start, and name and address first, please. NANCE: I’ll start. I’m the groundwater guy. My name is Tom Nance. Address is 680 Ala Moana Boulevard in Honolulu. We’re not actually joined at the hip but we do a lot of studies together. I handle the groundwater analysis, and at the shoreline where the groundwater discharges into the marine environment, I hand off my calculations to Steve and he takes it from there. If we’re talking specifically about the th questions that were covered in the June 25 memo, the question raised by Commissioner Graham was on the use of the lateral movement of groundwater to compute concentrations of the shoreline, rather than using the narrow width of the project itself. Typically when you see modeling studies by the USGS and others, the dispersion angle EXHIBIT B 28 as particles or pollutants introduce the groundwater move toward the shoreline. You typically see somewhere between 30 and 45 percent dispersion angle. Those are based on coefficients that are assumptions without, to be honest, actual data in fact. The dispersion angle I used here is only 12 percent. It’s very narrow; and that meant that for the 500-foot wide project when everything that was got into groundwater as a result of the project would have spread across about an 800-foot width of the shoreline. That, whether you say it’s a 500-foot width or an 800-foot width, that simply changes the average concentration. It doesn’t change the nutrient load itself. They’re the same, still the same amount of water coming in. So that’s from the groundwater side. And maybe I’ll leave it to Steve to talk about the issues in the marine environment side. DOLLAR: Yeah, my name is -. GRAHAM: Okay, go ahead, Mr. Dollar. DOLLAR: Steve Dollar, Dr. Steve Dollar, my address is 1039 Waakaua Place, Honolulu, 96822. To pick up where Tom left off, I think it might be instructive here or interesting for everybody to look at this in a little broader concept than just the project we’re talking about today. One of, there seems to be a lot of confusion and misunderstanding about the effects of groundwater in the nearshore ocean because especially in West Hawaii there’s no rivers or streams. The only way material from land can get to the ocean is if it seeps through the ground, gets in the groundwater and then discharges near the shoreline. Now one of the concepts that seems to be somewhat misunderstood is that naturally occurring groundwater has a very high nutrient load compared to the ocean. Just out of interest I took this bottle of Hawaiian Springs water from the slopes of Mauna Kea and had it analyzed; and the nitrate concentration in here is, and don’t worry about the units, it’s 38 micromolar. Now the ocean water, coastal ocean water, is about point 1. So this bottle of water is about 380 times higher in nitrate concentration than ocean water. Now the water in these pitchers that you’ve been drinking is probably twice as high as this, just the way the natural system works. And when I say natural, I mean, this has been happening forever. It has nothing to do with the effects of humans, and it has been going on for a long time. So the marine systems in the nearshore area here are well adapted to this. So it’s not anything to really worry about. So when you look at the, if you look at that 38 micromolar and it’s 380 times higher than the ocean, if you put that into percentage, that’s 38,000 percent higher.Now we’re talking in this, from Tom’s evaluation of the effects of this project, an increase in 1 to 2 percent. So that 1 to 2 percent is on top of the 38,000 percent for this water, which is probably half of what it is for the water we’re getting in there. So we’re really talking about very insignificant numbers. I can measure them, we do measure them. If you read my report you’ll see that they are measured and we do see an increase in nitrate at the southernmost transact, which is actually south of Magic Sands Beach which probably won’t even be affected by the project. But to sum it up, for this particular project, and most of what we’ve seen -. I’ve been doing this for 25 years now all up and down the coast of West Hawaii, and very EXHIBIT B 29 typical picture. Everybody else that looks at it sees the same picture. It’s not something to be concerned about. GRAHAM: Do we have any questions from the Commissioners for Mr. Dollar or Mr. Nance? Well, I’d like to participate a little if I could. Steve, I guess, being very frank, my main issue is we don’t have any independent, by independent I mean State of Hawaii, County of Hawaii, analysis of what’s going on. And we do see, I’ve been in Hawaii almost 40 years now, we do see degradation and we do see algal blooms that weren’t here before one place or another. And so, well, frankly, first off, I’ve never seen a report that you’ve done that said there is any significant effect. Am I wrong? Have you ever done a report on this island in your 25 years that said there’s a significant effect from a project? DOLLAR: Every report I do reports the significant effect in changes in groundwater nutrients. But there has been no reports, not only that I have done or anybody else has done, and I’ve got a stack of them here from other people, that report any changes in the biota. I have in a paper that I published in ’93 talk about the plankton blooms in Keauhou Bay, which are kind of a special situation, but I do acknowledge that that happens and it is a result of nutrient input, most likely. GRAHAM: Well, as long as you bring up Keauhou Bay, I’ve been on the Commission for four years and I remember back in 2004 there was an SMA project Mr. Fuke worked on, I think it was called Greater Pacific, and I asked for a study of groundwater and nutrients, and I know you did the study. And I just happened to be looking it over last night because I’m trying to kind of compare what I’ve seen over the years. And this is Marine Research Consultants. I believe that’s you, is that correct? DOLLAR: That’s correct. GRAHAM: Okay. So I see in the newspaper just a few days ago about all the brown water in Keauhou Bay and the people are saying, well, that comes from time to time, it has been doing it for years. Well, I went over the whole study you did on Keauhou Bay, which was right receiving area from this project, it was on the side of the receiving area. And first off I just wrote a couple of quotes that you said “Circulation,” you’re talking about the good circulation, “prevents phyto plankton blooms.” Well, we’ve got pictures of phyto plankton blooms. And you also said “no negative effects to the receiving environment” and you’re not talking about the project then, you were talking about the existing condition at Keauhou where there was already high nutrient groundwater coming in. You said there’s no negative effects to the receiving environment. So if we have a receiving environment like we get in this picture which brown water, it’s been there apparently for weeks, are you telling us those are no negative marine effects? Cause you must have known about it and you didn’t mentioned -. DOLLAR: Well, as I said -. EXHIBIT B 30 GRAHAM: Excuse me, I was just going to say, no where in the report did you ever mention anything about phyto plankton blooms in Keauhou Bay. DOLLAR: Well, as you did mention, too, these phyto plankton blooms don’t occur every year. They’re very ephemeral and that will come and go. And as I said I didn’t acknowledge them in this paper that I published in 1993 that’s right here. If you go down there, we’ve been, I’ve been going down there for years, and most of the time there’s no plankton there, and it’s probably or definitely a result of the circulation we see. It appears, and nobody has done a study of this, but I do acknowledge it that during certain times of the year, which is right now the end of summer when the days are longer, the water is warmer, it may be something to do with the change in the circulation from tides or whatever. There are situations where you see these plankton blooms. You see them in Honokohau periodically too, you see them in Kiholo periodically too. But it’s not a permanent situation and it’s also not a situation that anybody can attribute to any human activities. These might have been going on, as I said, strictly due to the natural nutrients that are in the water. Keauhou, there’s a very unusual situation in that the circulation there. Because it’s a bay, the residence time is much longer than on open coastlines. So many times you’re not going to see any effect whatsoever and periodically you do; and it doesn’t seem, as it says in that article I believe, it doesn’t seem to have any effect to the biology. Corals don’t mind it. It’s probably actually good for the fish populations. GRAHAM: I guess my basic point was aside from all of that you never made mention anywhere in that whole report you did for Mr. Fuke on that project that there were even phyto plankton blooms. You were explaining why there wasn’t any in the existing environment. So that’s what makes me feel like we really need some independent people to look at these situations. Cause I don’t feel trusting when I see after the fact that you knew that but you didn’t say anything about it. DOLLAR: Well, at the time that we looked at it there wasn’t any. Now, as I say, I mentioned it many times before, published it before in the peer review literature. So I’m not sure what the problem is in terms of this project particularly and even with Keauhou. Because I imagine in several weeks when the water cools off a little bit, just like it has every other year, the water will clean up. The same thing happens in Honokohau. GRAHAM: All right, thank you, sir. I’d like to ask Mr. Nance a question also, if I may. I think I mentioned years ago I appreciate reading your reports because I find them kind of readable, Mr. Nance, and so that makes it easy for someone who’s, you know, largely a layman to sort of go through them and all. And I think what has struck me the most is there are a lot of, when you look at the impacts to the groundwater of a project like this there are a lot of best guesses you have to take, how much fertilizer is going to be used, you know, what percentage of that fertilizer is going to make it to the groundwater, what percentage of the groundwater is going to make to the ocean, all that kind of stuff. So, you know, I trust you on that and I don’t sense that you’re misleading us in any way, but I feel a real vulnerability about that. And one aspect that did come to EXHIBIT B 31 floor on this particular project is I think the project is listed as 11 acres. And when you spoke of what’s going to go into the groundwater, you had so many acres impermeable surface, I think. So that’s going to go into the drywells, or runoff, or however. I think it was four or five acres. And then you said two acres landscaped and then you said four acres presumably left as is. But then when I read Mr. Fuke’s and Mr. Dickler’s application I just read about extensive landscaping and that the County minimum says two acres. But I don’t see anywhere in there that they’re saying we’re not going to landscape any more than two acres, and you made no reference in your report as to why you chose to use two acres as an amount that’s going to be landscaped. So maybe you could answer me on that, please. NANCE: Okay, I’ll try to answer all of the things you’ve talked about. The two acres is a number that I was given by the developer at the start when I did that analysis. I’m unaware that that had changed in any effect; but, you know, if it’s four rather than two, then obviously the fertilizer return flow calculation would in fact be doubled. Let’s go back to the first thing. The assumptions, you’re absolutely correct, we’re making a series of assumptions of things on how much is caught or taken up by plants and how much gets passed the root zone and gets into the groundwater. The only two things I would say to that – One is that when I make those same assumptions on areas that are existing where I have data from wells mauka and I have data from wells makai, and I say, and I have a handle on what’s already there, and I applied these same guesstimates, estimates, I come up with my calculations being an order of magnitude or maybe even two orders of magnitude greater than what we actually see in the groundwater. So that I think the estimates I’m using are relatively conservative. The second thing is in the report I did not account for the natural nutrient removal that does occur below the root zone in the vadose zone down to groundwater and movement of groundwater to the shoreline. I’ve had one place where we can try to quantify that. I don’t want to blow the whistle on the County necessarily but Kealakehe treatment plant takes all of their effluent and dumps it into a pit on the mauka side of Queen K Highway. At the time we did the study, I think Steve was involved also, they were pumping about a million gallons a day of R-2 quality effluent into this pit, and down it goes into through the vadose zone into groundwater 3000 feet, and it’s up into the upper end of Honokohau Harbor. So we grabbed samples up there, we grabbed samples intermediate, we grabbed samples in the Harbor, and we do a calculation to see of how much of what we know was put into the pit shows up in the groundwater. And those calculations indicate that the natural removal of nitrogen in that large quantity is about 80 percent. I haven’t taken into account in these calculations that natural removal factor, denitrification. And the natural removal of the phosphorous that goes into the pit and ultimately shows up in Honokohau is well over 90 percent. So I haven’t taken into account in these calculations that sort of natural removal past the root zone to the shoreline. So for that reason and for the reason that when I do my methodology on existing areas, my methodology always over-predicts. So I’m reasonably comfortable that I’m been conservative. I’m overestimating the effect. EXHIBIT B 32 GRAHAM: All right, thank you for that. Let me also just be clear on why I personally was, let’s say, not buying into the 800-foot dispersion area of this particular project; and I certainly agree what you say is right, we’re not talking about the amount cause the amount is the same, regardless of how wide. Let me just sort of parallel, like you took the average and you said the average may be for phosphorous was 2.4 and nitrogen 1.8. You know, if I shoot a gun off right here, it can get heard way down to the end of the hotel there, and way down to the end of the hotel there, and somebody can say, well, the average loudness of the gunshot was only 37 decibels. Well, that doesn’t mean the guys right over here aren’t going to have sore ears. So in the same sense, when that disperses I know what’s going to be going in at the ends is going to be a lot less than what’s going in the middle. So when you give the average, you’re given a number lower than what would be going in at the most intensely downstream place. And that’s what I really want to bring attention to. NANCE: Yeah, and as a concentration you’re absolutely correct. GRAHAM: Thank you very much. Any other questions for either of these folks? Mr. Yuen? YUEN: Yeah, I have a couple of questions along the same lines. You have an estimate of 57 pounds per year of total nitrogen going into the groundwater; and the source of this is leaching from fertilizers applied to the landscaping on the property, and that represents 15 percent of the nitrogen applied in fertilizers. Where do you get that 15 percent? What’s the basis for that number? NANCE: Well, actually, the primary basis is something that Steven did at Keauhou, which was an earlier discussion point, where they put the figure for the golf course fertilization at 10 percent; and golf course fertilization is usually quite a bit more intensive than you would see in landscape irrigation. So if I pick 15 that’s a fairly clumsy application of fertilizers as opposed to presumably a more professional application of the golf course. YUEN: So you have 85 percent of the fertilizer being taken up by the plants -. NANCE: Yeah. YUEN: The nutrients in the fertilizer. There isn’t work done more generally on this topic? NANCE: The only other -. DOLLAR: Go ahead. YUEN: Yeah, either one of you can answer, really. EXHIBIT B 33 GRAHAM: Go ahead, Mr. Dollar. DOLLAR: Yeah, what Tom is talking about, we did that calculation again in this paper. And the way we came up with the 10 percent is we know what they put on the golf course, they told us pounds. And then by using the methods that we used in the Bay and seeing what the nitrate in there was and knowing what the flux of water is and the concentration, we could back-calculate and subtract out the natural nitrate and come up with about 10 percent. So there’s an uptake of about 90 percent. And, again, references in here, there’s other papers for golf courses where they’ve done this type of study. The Clipper golf course, which is on Kaneohe Marine Corps Air Base, the Water Resources Research Center did quite a bit of work there, looking at uptake nutrients; and they come up with about the same kind of number. So those references are in here if you’re interested in them. YUEN: It seems that this could be, like somebody could do an experiment with potted plants, for example, and measure what comes out the bottom. You’re not aware of anybody doing anything like that? DOLLAR: The bottom? NANCE: Pots. DOLLAR: Oh, pots. YUEN: You would take a potted plant, right, and -. DOLLAR: You know, there’s a huge, huge literature on this from the golf course people that it has all been done; and if you’re interested I can point you in that direction. YUEN: Well, I’m asking cause this is not a golf course we’re talking about. You’re talking about irrigating I don’t know what, you now, bougainvillea, little trees. And I’m just trying to get, what is the basis for -. There’s certainly, you know, the idea of fertilizing something is you’re trying to fertilize the plant and not have it leach out. But apart from golf courses, is there empirical data about -? I’m sure, you know, in agriculture, farming, farmers are concerned about this. There’s no other kind of figures that talk abut how much leaches out -? NANCE: Two things. One is that -. GRAHAM: Mr. Nance, go ahead. NANCE: When I made the calculation I actually assumed fertilize application rates equivalent to golf course, which are probably overestimating what will happen here. There is, but it’s a long time ago, there were a bunch of lysimeter studies which is not a potted plant but a big can in the ground where they were looking at EXHIBIT B 34 effluent capture and how much passes through; and the numbers I’m using are consistent with that. That’s quite a while ago. You’re talking about in the seventies and eighties in Mililani on, in Oahu, and also out in Honouliuli just below the Ewa Villages complex. YUEN: And then just so I’m square on what you discussed about Honokohau, you’re saying that after this, you did not have any further reduction for the chemical denitrification within the lava rock after it leached out of the root zone of the plans? And you’re saying that figure out at Honokohau is about 80 percent? NANCE: Well, Honokohau is just going into an open pit, no roots, or anything. So we’re just calculating what goes in there, looking at what comes out in Honokohau, and indicating that for nitrates the removal rate is a little over 80 percent and for phosphorous it’s well over 90 percent. And that’s happening in the lava rocks in the vadose zone and in the groundwater as it moves about 3000 feet to the Harbor. YUEN: If there’s so much denitrification, how come there’s any nitrogen left by the time natural groundwater gets to the ocean? That’s what, I don’t know, because typically, you know, I mean I’m not -. This is just something that occurs to me, is that the typical, you know, most of the groundwater is coming from higher up than 3,000 feet from the ocean and it’s passing through thousands of feet, miles perhaps, of lava rock by the time it reaches the ocean. Is this process more active at some points or not? What is going on? DOLLAR: Denitrification can only take place in the absence of oxygen. So, first of all, it does take place I’m sure in other groundwater; but as long as it’s in an anoxic zone it doesn’t happen. So I’m, again, this is a very unexplored part of this whole puzzle we’re talking about here. There are a, very few studies have been done looking at, first of all the processes that put the nitrogen nitrate into the groundwater after it falls as rain and leaches through the upper level areas. You know, it’s a breakdown of organic material. But it’s really a hard thing to study because you’ve got to be in the ground. But there’s no doubt, I mean, if you look at all the cycling, the pictures that show nitrogen cycling, denitrification is always a big, big arrow in there. YUEN: So where is it happening between the pit at Honokohau and the Bay or the Harbor? Is it happening in the lava rock as it drops down to the lens, or is it happening as it flows in the lens down to the Harbor? GRAHAM: Mr. Nance, go ahead. NANCE: I’m not sure I can tell you. It’s certainly happening substantially in the vertical movement downward because that’s the zone with the oxygen in the environment. But, you know, I don’t have a sample half way down to grab. I have just going in and coming out in the Harbor. I can’t tell you -. I just tell you what the end product is. YUEN: That’s all I have. Thanks. EXHIBIT B 35 GRAHAM: Thank you, Mr. Yuen. Just because, to me, of the importance of what might be the effects on the marine environment and because like we read in the paper, you know, things are happening, I would just like to ask Mr. Yuen or the Planning Department to include in our record on this application the one West Hawaii kind of neutral documentation we have, which is this report prepared by Marine Science Department, UH –Hilo, in 2006, I believe, which is a review of coastal monitoring data for developments in West Hawaii. And I’d like that to be part of what we’re using to discuss; and, to me, the real impact of that is that it shows the high sensitivity to what can occur given the levels we have now of nutrients in the water and given what’s going on on the land. So is there any trouble with that, Mr. Fuke, that we just include that as the record on this application? FUKE: No. GRAHAM: Thank you. I’d also just like to ask you, since I asked Mr. Nance before about the acreage and he said you folks told him two acres, is that something that you folks are committed to, no more than two acres of landscaping, and that you will continue to have control over through the duration of time of what two acres gets -? FUKE: No, the two-acre reference was generally in the public area. You know, this was not counting, you know, within the project themselves. I would just have to rely on what Dr. Nance stated - that, you know, his initial estimate was to begin with very conservative. So even if you’re talking about a 4-acre area, if I understand Dr. Nance’s testimony correctly, it’s just that it still would be well below acceptable levels, is that correct? GRAHAM: So what you’re saying, Mr. Fuke, I think, is that given what we’ve heard, Mr. Nance is very conservative in how he calculates what’s going to be in the groundwater. So you’re saying, you’re not holding to the two acres he used for his paper but that you feel like even if it’s four acres we can assume that what’s getting out is not going to be any worse than the numbers he came up with. Is that right? FUKE: Based on his testimony, correct. GRAHAM: All right, thank you. Anything further from Commissioners? . FUKE: Mr. Chairman, can I just follow-up, I guess, with Dr. Dollar? I guess he had pointed out to a study that he had performed back in 1992 or 1993. Could you just kind of identify the report and if you have it available make it available to the Commission? DOLLAR: Yeah. Of course, I don’t have it with me but, or even the referenced to it, but I could. EXHIBIT B 36 FUKE: I mean, what were you waiving around there before the Planning Commission? DOLLAR: Oh, I’m sorry. This is a paper that I published and co-authored with M.J. Atkinson. It’s published in the journal of Estuarine Coastal and Shelf Science in 1992. The title of it is “Effects of Nutrient Subsidies from Groundwater to Nearshore Marine Ecosystems off the Island of Hawaii.” FUKE: That’s the report I was referring to. So if you have an extra copy would you be able to leave it with the Commission today? DOLLAR: Yeah, I can get you one. This copy I have is kind of marked up. So I’ll get you clean one. FUKE: Is that okay, Mr. Chairman? GRAHAM: Thank you, Mr. Fuke, I appreciate that. So I think as far as we can see we appreciate your two testifiers, the both of you. Thank you. And you can continue, Mr. Fuke, with whatever else you have. FUKE: Thank you, Mr. Chairman. Again, could I ask Dr. Prasad? I just had one more question just to follow-up with her. GRAHAM: Sure. Go ahead. FUKE: Okay. Dr. Prasad, I guess it was brought up earlier by, you know, one of the public, actually Mr. Tyler, I believe, regarding the Ka Pa‘akai Supreme Court decision, the Hawaii State Supreme Court decision. Are you familiar with that decision? PRASAD: Yes, I am. And it is addressed here actually in the study. FUKE: So is it your conclusion that based on the cultural impact analysis report that you prepared, it was, in your professional estimation, in compliance with that Ka Pa‘akai decision? PRASAD: Yes, I believe so. FUKE: Thank you very much. GRAHAM: Thank you, Mr. Fuke. I don’t think we have any questions for Dr. Prasad. Yes, Commissioner Woodward. WOODWARD: I might ask Mr. Fuke one thing. I mean, we’ve had a lot of fertilizer talk but, way too much fertilizer. But you did mention earlier that you were planning on using a time release fertilizer instead of traditional fertilizer to further mitigate against groundwater contamination? EXHIBIT B 37 FUKE: That is correct, Commissioner Woodward. After the conclusion of our presentation, you know, there are some conditions that we would like to propose, you know, for the Commission’s consideration, one of which includes that very fact. WOODWARD: Thank you. GRAHAM: All right, thank you. Thank you, Dr. Prasad. All right, are you finished with that Mr. Fuke then? FUKER: Just two more pages, unless -. GRAHAM: All right. We have a question first from Commissioner Alameda. ALAMEDA: Yeah. If, you know, the mitigating of the fertilizer you said you had a condition and you wanted to state it. I’d just like to hear it now if that’s okay. FUKE: The concept of that condition would be something along this line, “For landscaping during and after the site development, and in for all common areas maintained by the condominium association, all fertilizers used shall be slow-released. This requirement shall be recorded as a deed covenant.” ALAMEDA: Okay, thank you. GRAHAM: Thank you. Commissioner Domingo? DOMINGO: Mr. Fuke, at the time of the ground preparation for construction there will be certainly treatment of the ground for termites and that the chemicals will be applied to the ground? I think that was one of the concerns mentioned in the presentations. FUKE: And they left. But, yes, I believe what the report that Dr. Nance or Dr. Dollar prepared was that they will be using all FDA approved type of chemicals. So, for example, like chlordane, you know, which is like EPA, I’m sorry not FDA, EPA approved substance, so like chlordane for example would not be allowed. COMINGO: Okay. YUEN: If I could jump in for a minute here. I have looked into this quite a bit in connection with Kohanaiki, which is more sensitive because you have anchialine ponds that are fairly close to where people might build. The chemicals that are typically, and we may have, there’s a condition in the Kohanaiki that we might require. We might prohibit termiticides. And so that’s why I was studying it. And there are things you can do instead of using the typical termiticide, like a physical barrier. But these things are not very water soluble, the typical chemicals that are used to kill termites. So what happens, where you’ve had problems with them is typically where say they apply them but there’s EXHIBIT B 38 a pipe that’s underneath the pad already, say in an old water pipe, and it takes it straight into a stream; and then once it gets into the stream these are extremely toxic to fish and invertebrates in the ocean. But it’s more a question of direct contamination, rather than something that would be carried through by being dissolved in rainwater or irrigation water and carried down to the groundwater and then out to sea. GRAHAM: Thank you, Mr. Yuen. Mr. Fuke? FUKE: Finally, Mr. Chairman and the Commission, you know, there is, you know, we did have an updated traffic report study performed and, in conjunction with that, there was a section dealing with the tsunami evacuation plan. We do have Warren Yamamoto here to testify; and, however, I can just kind of summarize, and if there’s an interest on the Commission to have Mr. Yamamoto provide added clarity then, you know, he’d be more than willing to answer. But essentially relative to the tsunami evacuation plan, you know, the points he made, well, several things. One was that the subject site is not within the tsunami zone, inundation area, although it is part of the evacuation area. Secondly is that you will note that a proposed condition by the Planning Department requires like the emergency access road bisecting the property. And so in the absence of the completion of the Alii Parkway, then this property would actually be more like a partial solution rather than a hindrance to the evacuation issue. There have been some other conditions imposed on other projects where this issue has come about; and this is one that we would also like to suggest, and that is that the applicant be responsible in preparing a tsunami evacuation plan and it be submitted for the review and approval of the County Civil Defense Agency prior to issuance of the occupancy permit. Generally, you know, we had other reports prepared that addressed the flora and the fauna. You know, the water is available, the wastewater system will be connected to the County sewer line that fronts the property. We believe that, you know, through the material that was, that were filed with the Commission in the past and also more recently since the Commission’s initial denial on the application that the coastal water impacts issue have been addressed. The archaeological and cultural issues have been addressed through Dr. Haun’s and Dr. Prasad’s testimony and additional reports. We have also discussed the evacuation issues as well as the coastal recreational issues. Relative to all of that, you know, we believe that, you know, there are a number of proposed mitigations that could be made part and parcel of the condition; and I don’t, you know, specifically have an idea relative to where they should be. But in concept, you know, these are like what we’d like to suggest: In the event that the Commission favorably, you know, considers this application, then we would have the following additional conditions, specifically as it relates to the recreational uses. A condition that would read “A minimum of 25,000 square feet of land within the subject area shall be devoted to on-site recreational uses, such as a swimming pool, tennis court, community meeting place and the like.” EXHIBIT B 39 Relative to the tsunami evacuation, one condition would be “A tsunami evacuation plan shall be submitted for the review and approval of the County Civil Defense Agency prior to issuance of an occupancy permit.” In addition to that, provide some clarity to the existing Condition No. 7 wherein it would read “An access and circulation plan providing for interconnection of adjoining parcels and emergency access,” and, again, that’s a new word “emergency” “access to the Kahului-Keauhou Parkway” and adding “from Alii Drive shall be submitted to the Planning Director and the Department of Public Works prior to Final Plan Approval.” So that provides clarity, you know, relative to how this project would address the tsunami evacuation issue. On the coastal access and the recreational portion, we would like to suggest this - As I kind of pointed out earlier, the area where the public currently use is owned by the applicant. You know, this is where the pumps, the sewer pump station is located. And so we would suggest that the following condition be imposed. And it would read, “Plans for providing public parking spaces on tax map key 7-7-8:parcel 23, and the other parcel identified by TMK: 7-7-8:115, shall be submitted in conjunction with the Plan Approval process and shall be implemented according to the approved plans at no cost to the County, together with the development of the proposed project.” Relative to the archaeological, cultural conditions, I believe that for the most part they have been addressed. But what was silent was relative to the following, and I would recommend this additional condition, it would read, “No land disturbance permits shall be issued until the Data Recovery Plan, Burial Treatment Plan, and Site Preservation Plan have been approved by the DLNR-HPD.” Relative to the viewplane, although this was not an issue brought up at today’s testimony, we would like to recommend the following, the condition would read, “The finished grade of the building pads shall not be greater than 10 feet above the existing grade.” The whole concept behind this is to eliminate situations where a person puts in maybe 20- or 30-foot high worth of fill and thereby potentially providing some visual obstruction from the Parkway. The other condition relates to the on-site parking for the project. We would propose the following, “As represented by the petitioner, on-site parking shall be provided at a ratio of 2.0 parking stalls per multiple-family residential unit or whatever the prevailing parking requirement may be at the time of Plan Approval; provided that all parking stalls in excess of the minimum parking stall requirement at the time of Plan Approval need not fully conform to the parking standards of the Zoning Code. These stalls could be tandem, have narrower than standard width or length, or shorter backup isle space,” and so forth. Lastly the condition related to the use of the time release type of fertilizer, and I kind of read that earlier, so -. But if you want me to read it again, I can read it. But it essentially would state something along this line that for landscaping during and after a site development, and all common areas maintained by the condominium association all EXHIBIT B 40 fertilizers used shall be slow-released. This requirement shall be recorded as a deed covenant. So, again, in summary, Mr. Chairman, we believe that with the information and testimony provided and with this added mitigation that we’re suggesting, we believe that the requirements for the issuance of the Special Management Area Permit have been fulfilled. GRAHAM: Thank you, Mr. Fuke. Any questions from the Commissioners? DOMINGO: Mr. Chairman? GRAHAM: Yes, Commissioner Domingo. DOMINGO: Mr. Fuke, we’re not talking about a gated community, huh? FUKE: They may have a gate; but if it’s a gate it will have to be recessed “x” number of feet; and the primary road that goes up and down, you know, through the spine of the project will have to be made available for emergency evacuation purposes. DOMINGO: Yeah, that was my point. You know, if we’re looking at an emergency evacuation exit and onto the Parkway, then certainly there has to be clear way that people can travel through the -. FUKE: There would have to be a mechanism wherein like, because that’s Condition No. 7, yeah. Condition No. 7 requires the approval of the Department of Public Works and the Planning Department. So if it’s going to be, they’re going to have like a gate and to still provide for that emergency access purpose, there has to be some sort of mechanism worked out subject to the approval of the County to make sure that this route would not be impeded during the time of emergencies. DOMINGO: You’re not contemplating just opening that as a makai-mauka exit to the Parkway, are you? FUKE: That really would be a decision on the part of the County. The County as I understand does not want to allow for multiple accesses onto the Parkway. But if you look at the condition, it allows the Public Works Department, if they deem that that’s an area that they should have that mauka-makai connection then it provides that opportunity. From the applicant’s perspective having direct access from the Parkway, of course, would add value to the property. But, you know, it has to be tempered against the realities of trying to minimize traffic conflicts along the Parkway. DOMINGO: Yes. Well, I just, you know, my concern, for the record, is that there is an overload already on Alii Drive and with the project that we’ve, that I have been a part of in approving so far has or will greatly add to the traffic, further add to the traffic on Alii Drive. And this project and, I don’t know what other projects will be EXHIBIT B 41 coming down the line but my concern -. That’s why I ask that question. And hopefully this concern will be considered when the Public Works reviews the plans for the streets. FUKE: That’s a very germane point. But, you know, and the County’s plan right now is, approximately 500 or 700 feet south of the subject area is Laaloa Street, and so the plan is to have the mauka-makai connection from Alii Drive to Kuakini Highway, go through Laaloa Street. But in the event that for some reason, you know, that cannot be realized then, you know, the way the condition is worded it gives the Public Works Department the opportunity to say, well, maybe it’s got to be here. But since you’re already going to have a break at Laaloa Street, you know, like less than 700 feet away to have another break may, again, compromise the utility of the Parkway. GRAHAM: Thank you, Mr. Domingo. Mr. Emler? EMLER: If I may have the opportunity to comment on one of the changes that the developer’s representative, Mr. Fuke, is recommending. But Condition No. 7 is the one that does speak about an access and circulation plan, providing for interconnection of adjoining parcels and access to Kahului to Keauhou Parkway, Alii Highway, shall be submitted to the Planning Director and Department of Public Works prior to Final Plan Approval. And then it says no access to Kahului to Keauhou Parkway shall be permitted unless approved by the Department of Public Works. Mr. Fuke’s change to No. 7 is to put the word, I believe, access to Kahului to Keauhou Parkway, I think he put emergency access in front of Kahului to Keauhou. Access for, can you repeat your change to Condition No. 7, please, Mr. Fuke. FUKE: Yes, I did include the term, Mr. Emler, I did include the term “emergency” prior to the word “access”; and so if you want to delete that term “emergency,” you know, the applicant has no problem. EMLER: Yeah, I think putting that word in there changes the character of this condition in that it removes the review of the traffic circulation plan for the possible purpose of a mauka-makai connection, which I don’t think has been determined yet by the Department of Public Works. GRAHAM: Mr. Yuen? YUEN: Yeah, well, first, the Condition 7 is in there primarily because there’s a map that shows an access point from the adjacent property to the south that’s in green between Laaloa and this property, which we think -. And when we had the discussion about this we weren’t sure whether that had been eliminated or not; and I think it has been eliminated. But in case there was going to be an access from that property, then we would require an access plan to see if there would be an interconnection between those two properties. So that’s, if there isn’t any access from that property then there wouldn’t be any access at all, unless Department of Public Works decided to change the plans and have it. So that gives the flexibility without, and the control of there being, you know, any future, any future access to the Parkway. EXHIBIT B 42 There is one thing that I think is a little bit not correct in what Mr. Fuke has here, and that’s in the second to the last sentence in No. 7. It says no access, except for emergency purposes, shall be permitted unless approved by the Department of Public Works. And I think we should just take, we should leave it as is and not say “except for emergency purposes” because, is that, even access for emergency purposes we would want to have approved by the Department of Public Works. And if they want to have an emergency access then that would be approved under the condition as worded. This seems to give the applicant the right to have emergency access to Alii Parkway, without their consent; and I don’t think that that would be correct. FUKE: Yeah, we have no objection to the deletion of that. GRAHAM: Thank you, Mr. Fuke. Anything further from the Commissioners or Mr. Emler? I had one comment/question, Mr. Fuke. I mean I appreciate how I feel it’s like you’re addressing the real mainstream hard issues that were, you know, were in the middle of what was bothering us at our last hearing when we turned it down. The one that, to me, feels like - of course, I’m concerned about the water quality and the effect on the marine ecosystem. But aside from that, the one that feels like is really so important but has been left hanging is access to the beaches. And as you know, the SMA Permit process is much more involved about that than it is about what kind of connections you have you have to Alii Highway or whatever like that. So when I look even at the 2007 traffic report there’s no study in there at all, no analysis, no numbers, no consideration even of what’s going on with people going to the beach park, specifically the White Sands Beach Park. Pahoehoe Beach Park gets a lot less use so it’s easier for me to focus on White Sands. We’ve had a bunch of testifiers before us at the prior meetings talking about how difficult and dangerous that is. And, you know, I’m a little bit familiar with that area just from, you know, living in West Hawaii. And even in the middle of the week you drive by White Sands, like I happened to do not too many days ago, there’s that parking lot of like 20 some cars that’s full, and this is on a school day in the middle of the week. And then along the front of the beach there where there’s a guardrail there is some makai shoulder parking on the highway which is obviously dangerous if somebody has got to back in and out over something like that when you have a regular thoroughfare. So I feel like, you know, you’re making a good faith effort just kind of off the top of your, of what’s available to you by saying you’re going to make more parking available on the mauka side and all. But you’re also putting in that turn lane which is being required of you for circulation purposes. So it’s real easy for me to think right now while we have people coming before this Commission talking about how dangerous the road is and how difficult it is to park in the park, and a couple of years from now seeing a left- turn lane come right in the middle of everything down there and people coming in and out of the subdivision, and feeling like, holy, this is a mess, how did the County ever let this happen. And I can’t say I know it’s going to be a mess, I mean, but it sure feels like it has a lot of potential to really worsen the situation, to me, from just looking at the specific issue of people safely coming and going from the beach. EXHIBIT B 43 So to me it’s not acceptable for us who are the SMA implementing agency to say, well, you know, you’re going to work with Public Works and Public Works is going to do the best they can. I want to have a plan that you put before us that this is what it’s like now, which we get from the traffic impact analysis about the road but not about the beach access, and then this is how it’s going to be after we’re finished with our traffic going in in there and a left-turn lane, everything, this is what is going to do to people’s safe ability on the beach access. And we don’t have that. And it, so if you could come up with that now, then the public can come in and comment and say on that it doesn’t make sense or say that’s great or what. I have no idea. And I know in our SMA legal guidelines in 205A-26, no development shall be approved unless the authority has first found, and one of the parts is, except as such adverse effect is minimized to the extent practicable. I have no idea whether you’re minimizing it to the extent practicable since you’re doing nothing except putting in a left-turn lane and adding parking places. There may be a lot more things that could really help on that access to the beach. And then, of course, furthermore it says that even once you’ve minimize then it needs to be outweighed by compelling public interest. So that’s the part that’s strongest sticks me on your whole application as far as being able to vote in favor. FUKE: Well, unfortunately we had to deal with, the applicant had to deal with the existing zoning condition which required or mandated a left-turn lane over there. If it were not there and then the Commission or the applicant has a discretion, or Public Works has a discretion determining what type of intersection, then I think that we would have much more room to work with. So, you know, we had to deal with, you know, like basically the hands that, the hand that we were dealt with. So from that perspective, you know, the applicant tried as best as they could to see how they could address the public access issue. If what you’re saying is, you know, coming up with the specific, I guess, like Planned Unit, that becomes more like of a design issue; and I don’t know whether, you know, we’d be in a position to come up with a design at this point in time, you know, like -. And at the same time if you wish to have the public weighing in on it, you know, maybe there is a process, you know, through some of the conditions that we were suggesting or some of the existing conditions that that particular element can be addressed in having the design for the left-turn lane, you know. And perhaps like Public Works, you know, could comment on that. You know, rather than requiring the standard length and the width for a left-turn lane serving only this project which is going to be more or less like a cul-de-sac except for emergency access, unless the County determines otherwise, you know, there possibly could be like a modification to the left-turn lane going into the property such that it would provide for, you know, the perceived level of safety or, you know, that you’re referring to. GRAHAM: Thank you. I understand the constraints you’re coming from as far as the left-turn lane. You know, my concern is obviously the left-turn lane is only a small piece of it; and I think you can probably understand my concern, too. And I also want to reiterate I’m just, when I speak like this I’m just speaking as one Commissioner. All the different Commissioners may have very different takes on the situation. Anything further from the Commissioners? Mr. Dickler, did you care to make a comment? EXHIBIT B 44 DICKLER: Thank you, Commissioner Graham. Just in context of what you’re saying with regard to a left-hand turn lane, actually that will facilitate beach access because the parking that is proposed in the conditions of Mr. Fuke had spoke of, it will facilitate people so they’re not turning around doing u-turns and trying to get into the beach. It will provide additional parking. And the left-hand turn lane, subject to what Public Works tells us that we can do, will provide more safety for people to get to the beach. And so the one point that Mr. Fuke made earlier with respect to the land that is being utilized now for parking is our property and that if we spend the time, and we will spend the time and the money, to maximize that parking facility and incorporate the left- hand turn into that so that it helps the beach access, I think that we are providing something more than what is just existing. GRAHAM: Thank you. Mr. Emler? EMLER: Chairman, Mr. Chairman, I’m still wondering about that Condition No. 7. Mr. Fuke did say or offered to remove “emergency” from the condition, his proposal to put in that word. Is that still on the table? Because when you gave your explanation you found a different place where it said “emergency.” Are you talking about a different place then and are you acknowledging his offer to remove “emergency” from the first part? YUEN: I think we should remove both emergencies and leave it as -. EMLER: Okay. I just wanted to clarify that. Thank you. GRAHAM: Thank you. Anything further from the Commissioners or from the applicants? All right, thank you. Thank you all very much for a very extensive and comprehensive presentation. FUKE: Thank you. GRAHAM: You folks want to take a little break before we go into doing action, you want to go right ahead, what would you like to do? ALAMEDA: I can ask some questions, since he’s up there? Real fast. GRAHAM: You’d like some questions? ALAMEDA: Question. GRAHAM: Yeah, we have one more question from Commissioner Alameda. ALAMEDA: I, what is the percent of affordable, again, for this one? Was it -? FUKE: The percentage on affordable is whatever was required on the part of the zone change. And you remember what it was? EXHIBIT B 45 DICKLER: The zone change -. GRAHAM: Mr. Dicker is going to respond. DICKLER: My recollection is that the zone change was ten percent. ALAMEDA: Right. DICKLER: But we said that we would do twenty percent. ALAMEDA: Right, got you. Thanks. GRAHAM: So the condition is twenty percent? DICKLER: Yes. GRAHAM: Thank you. All right let’s take a break for a few minutes. You folks can stay up there, and when we come back if we’ll just carry on from there. Thank you. RECESSED The Chair called a short recess at 2:23 p.m. RECONVENED The meeting reconvened at 2:34 p.m. GRAHAM: Will the Hawaii County Planning Commission come back to order, please. We’re considering Unfinished Business, an SMA application by D-Bar Ranch along Alii Drive. So I think we’ve just had our applicant’s presentation, we’ve just had questions from the Commissioners, we had our public testimony earlier. Maybe we’re at a place where we should close the hearing now? ALAMEDA: Yes. GRAHAM: Could I have a motion to that effect? ALAMEDA: I’ll make a motion. Mr. Chairman, I move that we close the hearing. DOMINGO: Second. ALAMEDA: So moved by Commissioner Alameda, seconded by Commissioner Domingo, that we close the hearing on this matter. Would you give the roll call, Jeff. DARROW: Thank you, Mr. Chairman. The motion before us is to close the hearing. With that, I’ll take the roll call. Commissioner Alameda? EXHIBIT B 46 ALAMEDA: Aye. DARROW: Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: And Mr. Chairman? GRAHAM: Aye. DARROW: The motion passes six to zero. GRAHAM: Thank you, Jeff. Before we go into decision-making and motions on decision-making, since I know some of the Commissioners were not part of this original hearing that we had a year ago, or whatever exactly it was, I guess I’d just like to affirm for the record that those of you who are here that were not part of that original hearing kind of have mastered the record and have read the documentation and feel capable to go ahead and plan to vote on the action, or any of you would like to take extra time and have it at another meeting. Okay, so if I hear no comment I assume everybody is up to speed. ALAMEDA: Uh huh. GRAHAM: Okay, good. So the floor is open then for motions or comments on this SMA application which was denied by the Panning Commission last year, returned to us from the Court because of procedural problems we had, and so we’ve agreed to go along with proper procedure as the Court has asked us. And I think now we’re ready to take action on this application again. Commissioner Domingo? DOMINGO: Mr. Chairman, I move for the approval of D-Bar Ranch, LLC application, SMA Application 06-000009, along, to be attached with the recommendations as made by the Planning Department, and to include also those conditions that the applicant has amplified that they’re willing to include in the permit. EXHIBIT B 47 GRAHAM: Thank you. WOODWARD: Second. GRAHAM: And seconded by Commissioner Woodward, moved by Commissioner Domingo. Mr. Yuen, as far as the exact wording of his motion, does that adequately and properly handle the discussion that you and Mr. Emler and the applicant have had with regard to the conditions, or is there any further amplification necessary? YUEN: No, I think that’s fine. GRAHAM: Thank you. Commissioner Alameda? ALAMEDA: Sure. Just let me reflect back on this particular application. A year ago I voted against. I think I was one of the ones, myself, Mr. Graham, and that’s it, I think. Cause Commissioner Galdones, I remember, and Commissioner McCall, and I think Commissioner Watanabe, voted for this application. So, and my reasoning against was, well, several of what was stated today. And, you know, the recreation being like the testifier mentioned the fact that you mitigated that by having recreation on-site, I thought, was really good. The parking spaces becoming now two spaces per unit, I thought that was good. I was still concerned about traffic, but it seems like you did your good best effort on trying to mitigate that. And Chairman brings up a lot of good issues around the biological effects to the water. And so just on the side now anybody who keeps, any Commissioner who keeps records for the past four years, I vote for them for the Commissioner of the Year. Good job. So, I mean, you know, obviously Commissioner Graham has passion on that and around that issue. So those were some of the reasons why I actually voted against this earlier. But now, you know, just like you had a second chance by this situation with the procedures. So, I mean, this really got you, I think, as an applicant thinking about how to mitigate some of those issues that were bothering me, at least. And I like it, I think that you worked hard, I think that you did the best you could to mitigate a lot of those factors, and you came up with the conditions, and not us, so I really like that. And I’m leaning towards voting in favor of the motion. GRAHAM: Thank you, Commissioner Alameda. I appreciate that. Any comments from other Commissioners? Commissioner Woodward? WOODWARD: I would like to echo what Commissioner Alameda just said. I don’t know what more we could ask of a developer and his representative. They’ve seemed to have bent over backwards to try and fulfill the things that were brought up as concerns. And I think it’s as responsible a development as you’re going to find, so I’m also in favor of it. GRAHAM: Thank you, Commissioner Woodward. Any other comments from Commissioners? I think I’ve commented plenty already today. Commissioner Rho, do EXHIBIT B 48 you have anything to say at this time? RHO: No. GRAHAM: No. Okay, Commissioner Ogata? OGATA: No. GRAHAM: No. Yes, Commissioner Domingo? DOMINGO: I’d just like to mention that, you know, actually what we’re doing is a follow-up to some action that was taken some years ago, and that was rezoning of the parcel and that it provided for, I think, RM-.5 designation. And what they’ve come before us is a plan that is in keeping with that zoning. And the SMA Permit would further give us the opportunity to look at the specific development and for us to look at the impacts of that and to apply or impose any mitigating kind of measures to address those impacts. And as I read through the material in the past and I look at some of the concerns expressed, you know, there were some strong concerns that I had with regards to really whether or not it would be of worth approving such a measure in view of the fact, as I indicated, you know, there is an overload on Alii Drive already and, well, what’s coming before us is something that may add to that. I looked at one of the testimonies by a person from the public with regard to cultural consideration, lack of emergency evacuation exits, lack of parking both on property and on Alii Drive, lack of a viable plan to connect Alii Parkway, lack of recreational facilities on the project, and clogging of Alii at peak times, and lack of fire lanes, and overuse of the existing recreational facilities. With regards to the roadway, the applicant is willing to do whatever the Public Works deem appropriate and necessary for the entire area and not for the project per se, and they would do whatever is required. And the conditions that the Planning Director is imposing on them, and with the additional commitment by the representative of the applicant to meet and take care of the other problems that may be there in the foreseeable future, you know, I feel that things are well covered. And for me I can ask for nothing more than that. Thank you. GRAHAM: Thank you, Commissioner Domingo. Well, I think everyone has spoken that chooses to speak. Jeff, I think we have a motion for approval. I think we’re ready to take the vote. DARROW: Thank you, Mr. Chairman. The motion before us is to approve this SMA Permit with amendments within the revised recommendation from the Planning Director as well as revised conditions from the applicant. With that I’ll take the roll. Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Woodward? EXHIBIT B 49 WOODWARD: Aye. DARROW: Commissioner Alameda? ALAMEDA: Kanalua. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: Mr. Chairman? GRAHAM: No. DARROW: And Mr. Alameda? ALAMEDA: Aye. DARROW: The motion passes five to one. GRAHAM: All right, thank you all. Thank you. DICKLER: Thank you. FUKE: Thank you very much for giving us this chance again. GRAHAM: Yes, you certainly all put forth quite a good effort, just as Commissioner Alameda said. All right, so that finishes Agenda Item 2. The discussion ended at 2:44 p.m. Respectfully submitted, Sharon M. Nomura, East Hawaii Secretary A T T E S T: Noriko Sauer, West Hawaii Secretary EXHIBIT B 50