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HomeMy WebLinkAbout2006-09-22 T Giacometti PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT SEPTEMBER 22, 2006 CATHERINE V. GIACOMETTI EVANS A regularly advertised hearing on the application of FAMILY TRUST (SMA 05-006) was called to order at 1:00 p.m.in the Hapuna Beach Prince Hotel, Mauka Salon, 62-100 Kaunaoa Drive, Kohala Coast, Hawaii with Chairman C. Kimo Alameda presiding. PRESENT:C. Kimo Alameda ABSENT & EXCUSED: Allen Salavea Fred Galdones Rene’ Siracusa Andrew IwashitaRodney Watanabe Bill Graham Jeffrey McCall Alvin Rho Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 30 people from the public in attendance. APPLICANT: CATHERINE V. GIACOMETTI EVANS FAMILY TRUST (SMA 05-006) Discussion and action on the Hearing Officer’s report on a Special Management Area (SMA) Use Permit to allow the construction of an additional single family dwelling with related improvements, including upgrading of existing structures. The property is located along the north side of Ehukai Street, adjacent to the Sheraton Keauhou Bay Resort & Spa complex, nd Keauhou 2, North Kona, Hawaii, TMK: 7-8-12: 1 and 57. DARROW:This is a contested case hearing that is continued. We had a Contested Case Hearing on July 11, 2006. There have been proposed Findings of Facts submitted by all parties, including the Hearings Officer’s, to the Planning Commission. The Planning Commission should, at this time, have a record of, a copy of the entire record. Just for, to refresh the Commission’s memory, the area of this application is within the North Kona District of Hawai`i. Looking at the location map, we have the area of North Kona, more specifically we’re looking at the Keauhou area. The white line traveling in a north-south direction near the ocean is identified as Ali`i Drive, and also the bypass highway that’s proposed. A little further mauka, we have the nearest State highway, which is identified as Kuakini Highway turning into Hawai`i Belt Road. This particular area right here, Keauhou, we have the area of the application identified in red. EXHIBIT B 1 The Applicant, Catherine V. Giacometti Evans Family Trust, has requested a Special Management Area Use Permit to allow the construction of an additional single-family dwelling identified in this location. This is a 2,800-square foot residence with a proposed garage-utility shed included in that. Also included in the request is the addition of a one-bedroom to their existing one-story house located in this area identified in red, and a 200-square foot lanai area to an existing guest house. Lastly, they are requesting to permit an un-permitted rock wall that’s over six feet in height, as well as a crumbling rock wall that is on the west boundary of the property. The area of, just for identification here, we have two lots that are encompassed in this application. We have a larger lot that’s approximately 31,000 square feet in size, identified in this particular area; and we also have a 10,000-square foot area which, as well has its own single- family dwelling, which there are no proposed changes to that existing dwelling. This area here is actually the coastline. The area identified in purple is the 40-foot shoreline setback area from the certified shoreline. Mr. Chairman? ALAMEDA:Any questions, Fellow Commissioners? Okay. Seeing none, will the Applicant and the Intervenor, please come forward. The Director is already up there. Thank you. Thank you for your patience. I’m going to swear all of you in at the same time. Please raise your right hand. Do you swear or affirm to tell the truth now before the Hawai`i County Planning Commission? TESTIFIERS:I do. ALAMEDA:Thank you. Applicant, could you please state your name and address for the record, or the Applicant’s representative? JUNG:My name is Francis Jung, appearing on behalf of the Applicant, Catherine Giacometti Evans Family Trust. I would note for the record, if I may, that Peter Evans, a family member, is here, as well as Klaus Conventz, who is a consultant to the Applicant. ALAMEDA:Thank you. Will you be speaking today? If so, could I have your name and address? Any of you, any of the Applicant’s or -? JUNG:I’ll be speaking on behalf, but we have not intended to make any formal presentation ourselves but to answer questions that are put to us. ALAMEDA:Okay. Thank you. And for the record, can I ask the Intervenor, please state your name and address for the record. TUHY:Yes. My name is Allen Tuhy, I’m the attorney for the Intervenor, Margaret Ann Lueck-Joye Revocable Living Trust. I’m appearing on her behalf. ALAMEDA:Thank you, sir. Can the Director or, state your name and address for the record. EXHIBIT B 2 LEITHEAD-TODD:Bobby Jean Leithead-Todd, Deputy Corporation Counsel, representing the Department; and here seated with me also is Director Chris Yuen. ALAMEDA:Okay. Thank you. Could I ask the Applicant, the Hearing Officer Michael Gibson prepared a report for all of us and we had a chance to review it, is there any position that you’d like to take regarding that particular report, sir? JUNG:Yes, Mr. Chairman, there is. When we submitted our proposed Findings of Fact and Conclusions of Law, we added a few additional findings, somewhat of a legal nature that kind of tracked the statute and the ordinance. We would ask that the additional or supplemental Findings of Facts and Conclusions of Law, which were not adopted by the Hearings Officer, also be included in the Findings of the Planning Commission. ALAMEDA:Okay. Could you please identify those for the Commission? JUNG:Mr. Chairman, if you’ll give me some time, unfortunately my glasses seemed to have been misplaced; and I can’t see without them. ALAMEDA:Sure, no problem. JUNG:Thank you for your indulgence. ALAMEDA:Sure. JUNG:Unfortunately, as time passes, my eyesight seems to lessen a little bit. ALAMEDA:Okay. JUNG:Thank you very much, Mr. Chairman. Do you have the, Members of the Commission, received copies of our proposed Findings of Fact and Conclusions of Law? ALAMEDA:Yes, we did. JUNG:Okay. The procedural facts and the substantive facts, looking at pages, starting at Page 2 of our submission, and they go through Pages 18. I didn’t know if you wanted me to go through this line-by-line? ALAMEDA:Mr. Torigoe? TORIGOE:Well, depends on what exactly, you know, you would like. Well, the Chairperson has asked me a position as to how the Commission should deal with the proposed Findings of Fact; and so, I guess, really, it’s up to you how you want to present that. If it’s something that you need to go line-by-line, then feel free. JUNG:No, basically, what we had wanted, there were some issues that were not contained in the Hearing Officer’s Finding that, to the extent they are not conflicting with the Hearing Officer’s report, but are supplemental, those are the ones that we would request to be EXHIBIT B 3 added. In substance what they do is they address certain issues that I think, that were brought by the Hearing Officer to be superfluous, but which actually support. It comes out the same way, except that the Findings that we have would also point directly to evidence that was also part of the record that would support those Findings. The same with Conclusions of Law, they refer to the specific ordinances and statutes which need to be addressed in a situation, in an application like this. And thank you, Mr. Chairman. ALAMEDA:Okay. All right. Thank you. Any questions? Commissioner Graham? GRAHAM:I’m just concerned that we could get into a really lengthy recitation here or something. And I don’t know how to avoid that, except maybe what I was thinking is if instead of doing that at this time we proceed with the process here. And when it becomes more apparent on what bases we make our decisions or something, then any of your Findings that you feel like they’re relevant to the bases of our decisions, you’d want to have in there, or something like that, rather than us try to decide what’s superfluous in our point of view right now. I’m just trying to think of any way to streamline the process, ‘cause it sounds like it might be very lengthy what you’re thinking. JUNG:If I understand it correctly, thank you, Mr. Graham. But if I, depending on what the concern is or what’s brought up, I think that we would actually concur with the Corporation Counsel’s Findings of Fact and Conclusions of Law.Ours are very similar to theirs and we don’t have a disagreement with them. As a matter of fact, we fairly well adopted the County’s position. Thank you. ALAMEDA:Okay. Commissioner Graham? GRAHAM:So maybe it would be okay to put this off for now as long as you have an opportunity at the appropriate to come in with anything you feel we’ve missed or that is necessary? JUNG:That would be fine. Thank you, Mr. Graham. ALAMEDA:Thank you, Commissioner Graham. All right, also, Fellow Commissioners, please know that there are no Exceptions filed for this, right now where we’re at. So, basically, kind of what we’re doing is just looking at the Hearings Officer’s report and looking to see whether we’re going to reverse it, modify it or adopt it. And, so, right now I’m just kind of getting the feel for our parties here and kind of what, how they feel towards the report. So let me ask the Intervenor, I know you’ve read the Hearing Officer’s report, do you have any position on it? TUHYThank you, Mr. Chairman, Members of the Commission, yes, we do. First of all, I would note that there are a number of areas in which we think that the Hearings Officer’s report is deficient. It really starts with kind of an absence of a number of Findings of Fact. And that’s really what I would want to highlight for the Commission, is what the Hearings Officer did not find but that the record did support. If the Chairman and the Board Members would permit, I could go through, really, what I conceive to be five essential areas where the Hearings Officer’s report is deficient. And I can point to that if the Commission Members have copies of our proposed Findings of Fact and Conclusions of Law as well. EXHIBIT B 4 ALAMEDA:We do, the Commission does have that. Fellow Commissioners, are there any objections to our Intervenor pointing out those five areas? Seeing none, you may proceed, sir. TUHY:Thank you. The first area deals with what we have referred to as the stockpile material. The stockpile material is really not addressed at all in the report, other than a Finding of Fact that it was brought on to the property for the purpose of using it as a fill to grade the property from the ocean to Ehukai Street. That’s one of the Findings of Mr. Gibson. And no other Findings were made until you get to the Hearing Officer’s No. 59, which is the very last paragraph of his proposed or recommended decision where, if I can quote that. I believe he says that the Commission, without a great deal of parameters on it -. I’m sorry, that’s Finding, or Item No. 78 of the last paragraph. It says, and it’s the very last sentence -. IWASHITA:What page is that? TUHYI’m sorry, that’s Page 16, Item No. 78. ALAMEDA:Okay. MCCALL:This is of the -? TUHY:Of the Hearing Officer’s -. ALAMEDA:Report? TUHY:Report. ALAMEDA:Okay. TUHYAnd the last sentence is, “Additionally, the Hearings Officer recommends that the Applicant be required to take steps to mitigate any potential runoff from the imported th dirt/loamy material situated on the subject property.” The, quite a bit of the hearing on July 11 centered around that material. It is, if you have the exhibits before you, pictures of it are reflected in Exhibits J as in joy – B as in boy and C. It shows the stockpile material. It’s 300 to 400 cubic yards of material that was imported onto the property by the Applicant in approximately 2004. The material has not been anchored, it has not been stabilized. And a very significant concern that the petitioner has and my client has, as well as expressed by other witnesses at the hearing, is the very significant possibility of environmental damage which could be caused to Keauhou Bay, a very sensitive area, should that material be taken out to the ocean or there’ll be siltation or wind-blown effects from the stockpile. In our Findings of Fact, which we had submitted to the Hearings Officer at Pages 9 and 10, we had made certain proposed Findings of Fact which are supported by the record, numbered 7 through 10, dealing with that particular material. The evidence I think was uncontroverted that there have been no protected measures taken. The Hearings officer essentially adopted that. EXHIBIT B 5 One of the concerns expressed is we have had this kind of siltation problem before. And I know the Commission is aware of other circumstances, one of the more notable ones being at Hokulia where the runoff was quite significant. This is a different situation but it presents the same kind of environmental hazard which I believe that the Commission should seriously consider before it takes any final steps in approving the SMA. We do not, we do not disagree that an SMA permit should be issued. We’re simply asking that additional conditions be imposed as a condition of issuing that SMA. The Findings that are included included the Applicant’s own engineer, Mr. Bruce Witcher, who acknowledged that it was not anchored material, it was not brought in with the benefit of any permits. There was no grading permit pulled, there was no consent or approval by the County. And essentially what started all this, Commissioners, maybe I should go back a step, is this stockpile material as well as other construction on the property, particularly Lot 2, which is the larger 32,000-square foot lot had had construction on it, which, essentially, the Applicant got caught at. And the County Planning Department came in and issued notices of citation in June of 2004 after the work had already been done, after some construction had been done. Significantly, that stockpile material, according to Mr. Witcher’s testimony, and that appears at Page 10 where we cite to the record what Mr. Witcher had to say about that. I’m sorry, it also goes on to Page 11, Pages 10 and 11, “Mr. Witcher confirmed that in its current condition, the Stockpile,” which I referred to, “in the event of large wave action or hurricane would be taken out to the ocean.” And that was his own testimony. There has been wave action in that area. Obviously, it’s subject to high winds and hurricane. So that was a significant item to us. We had made certain recommendations to the Hearings Officer to pass on to the Commission which was that all of that material should be removed. ALAMEDA:Okay. That’s the No. 1? TUHY:Yes. ALAMEDA:Okay. How about No. 2? TUHY:Thank you. No. 2, the violations which had been, for which the Applicant was cited, those are noted at Pages 5 through 7 of our proposed Findings of Fact, Conclusions of Law. After the violations had occurred, there really were no sanctions. There was simply a recommendation from the Hearings Officer that this Commission go ahead and approve the construction that had already taken place. One thing I’d like to make very clear, though, is the SMA application in this case does not seek to legitimize the lifting of the two houses which Mr. Darrow pointed out, the existing two houses on the map, which is the one-story and the guest house, what we referred to as the guest house. Those were lifted up, there were some plumbing detached and reconnected, all of that, again, in the record and undisputed, without the benefit of permits. That has not been sought to be legitimized. And if the Commission does nothing else, we would ask that the Commission note that the SMA permit is not a legitimization of those prior construction activities done without benefit of any permits. That’s Item 2. ALAMEDA:Okay. So noted. EXHIBIT B 6 TUHY:No. 3, Shoreline Certification. The Findings of Fact on this are for the Hearing Officer --. I’m sorry, in our Findings of Fact, proposed Findings of Fact and Conclusions of Law, at Page 15, Findings Nos. 6 and 7, the shoreline certificationout there, again, it’s undisputed that that shoreline certification had expired. The undisputed testimony also was that the Applicant, through Mr. Klaus Conventz, had sought an extension of the one- year minimum. That’s set by rule. That one-year extension was not granted, so the shoreline certification by rule was no longer valid. The only reflection of that I believe is in the Hearings Officer’s report at, I’m sorry I had it written down, was that there was some evidence submitted by Mr. Conventz that he did not believe that the shoreline had changed. Mr. Coventz is not a surveyor. We think it’s incumbent on the Applicant to show that there should be some exception to the one-year validity date of the shoreline certification. That was not done. There was no competent evidence to indicate that that should not have been redone and submitted as part of the SMA package. That is required by this Commission’s rules as well. And we’ve cited those, I believe that’s Rule 9. Item No. 4, Grading on the Property. If I may, Mr. Chairman, point out -? ALAMEDA:Sure. Take the mike or -. TUHY:The grading plan, this does not have the grading plan. There is a stonewall which runs through the property; and it’s actually not shown on this, it’s shown on Exhibit No. 12 of the submissions made by the Applicant. As testified to by Mr. Witcher, which is in our proposed Findings of Fact, it shows that that stonewall was to be removed. Grading would come from the ocean down to Ehukai Street, generally to permit for drainage, generally running in that direction; and that was a Finding made by the Hearings Officer. The problem is that the actual grading plan submitted to the Planning Department did not reflect the fact that that stonewall was not to be removed, instead it was to remain so that all of this north of the wall would, continuance per a natural state, and only the grading fill would come from that stonewall area forward. Does that explain it clearly enough? That is what Mr. Witcher’s testimony was. The problem being is that the site plan that he submitted did not reflect the actual intended retaining of that stonewall which runs through the middle of the property. So the grading site plan is different than that actually shown on the plans of what is intended -. ALAMEDA:And so your No. 4, then, if you could summarize it for us. Where would it be then? TUHY:If I may, as to Item No. 4, the Hearings Officer made no Findings with respect to any portions of the grading site issue. Our proposed Findings of Fact at B.1, which is on Page 13 of the “Contestant Margaret Ann Lueck-Joye Revocable Living Trust’s Proposed Findings of Fact,” Page 13 refers to the testimony of Mr. Witcher. And, again, at the Conclusions of Law, Page 22, we’re asking that the Commission determine that the grading plan submitted to the Planning Department is not adequate under Conclusion of Law No. 12. And that specifically tracks HRS 205A-26, Subsection (1)(D), where you need to, where the Commission should require that that be included in the SMA application and addressed as part of the concerns required under the statute. ALAMEDA:Okay. Thank you, sir. No. 5? EXHIBIT B 7 TUHY:Item No. 5 references to the cesspool, which is on the Applicant’s property. That cesspool system is referred to in Hearings Officer’s Conclusion of Law at Item No. 52. ALAMEDA:It’s on Page 11? TUHY:Page 11, Item No. 52. I’m sorry, I have a different number, excuse me. That’s Item No. 59. ALAMEDA:Page 12, Item No. 59. Bottom of the page? TUHY:Yes, Item No. 59. ALAMEDA:Okay. TUHY:The evidence was that there is effluent which is currently leaching into Keauhou Bay, an item of great concern to our client. We are asking that, our Findings of Fact on that matter are at Pages 11 and 12 of our proposed Findings of Fact and Conclusions of Law, to which we refer to the record, Page 10, and those Findings of Fact, our proposed Findings Nos. 13 and 15 at Pages 11 and 12. As to the Conclusions of Law which we believe follows that, Page 22 of our proposed Findings of Fact and Conclusions of Law cite the Hearings Officer to, and that’s Item No. 10, “The present septic system on the property does not meet the requirements of HRS 205A-26(1)(C),” where the Commission is required by law, we believe, to address the matter of disposal of waste materials. ALAMEDA:Okay. TUHY:Those essentially are the five. We think that the real situation here is one in which we have a very sensitive area, both a historically and ecologically sensitive area. We’re right along the shoreline, we have a flood zone area there.And the concern that we’ve had throughout, if you took a look at the initial submittal by the Applicant, it just seems that these items were not adequately addressed. The Commission’s direction, of course, is to follow the statutes, is to follows the rules. The shoreline certification, I think, is a pretty clear issue. But the other ones that, the other four items that I’ve mentioned are ones that really deal with the ecological balance that are part and parcel of Keauhou Bay. So we’re asking that those Findings be adopted and the Conclusions include the following: (1) That the stockpile material be removed immediately and prior to final approval of any SMA permit issued by this Commission. (2) We’re asking simply that some sanctions be considered by this Commission for the previous violations. There were simply building done without any approval from the County or the State, or any certification as to how it may impact the base flood area; and that, also, is in our proposed Findings. (3) That there be a new shoreline certification submitted as part of approval of the SMA process and as a condition of its issuance. (4) That the grading plan be modified so that it can be, again, reviewed by the Planning Department and then EXHIBIT B 8 by this Commission reflecting the actual site plan as testified to by Mr. Witcher, which is different from the site plan submitted with the SMA permit. We think that’s a minimum. Finally, as to the effluent which is discharging into Keauhou Bay, again, I think that the evidence was clear, it was relatively uncontested. There was some testimony from Mr. Conventz. But the testimony that we had submitted was from Mr. Patrick Cunningham who runs a rental service right there in Keauhou Bay and drives right in front of that, right in front of the subject property two to three times a week. Our clients live right next door, so we think that that testimony was a bit more persuasive than that of somebody retained as a consultant for the Applicant, and that the Commission should consider that. And with respect to that effluent, that it be abandoned and terminated in accordance with the appropriate rules. There are EPA rules relative to closing of cesspools. There’s also I believe DOH rules dealing with the abandonment. So that once it’s hooked up to the sewer, we understand that hooking up to the local KIC sewer system that, if that first appropriately be abandoned so that we have no further effluent discharge. ALAMEDA:Okay. Thank you. Thank you, sir. Well, we’ve got your five points. Commissioners, you need any clarification on those five points? Commissioner Graham? GRAHAM:Yes. Let me just try to be real brief, and just make a few comments on what you said, and just sort of see if that’s in concert with what you’re thinking. To me No. 1 and No. 5, the stockpile material and the cesspool system, are both very relevant to the SMA issues. And so as far as going forward with this permit, to me they’re very relevant to the substance of what’s going to take place in the future and that we, you know, should decide how we deal with them, or not. The shoreline certification, I’m not sure of because we don’t have any evidence that the shoreline has changed. But I think you’re saying as by rule we need a more current one. As far as the grading, you want us to have the grading sort of reflect what the current plans are. But you’re not making any claim that if the grading follows the old plans as opposed to the new plans or the new plans as opposed to the old plans that either way has any real impact on the SMA permit. You’re not saying you want it to be the old plan, or you want it to be the new plan. It’s more like a house-cleaning thing, housekeeping thing. Is that correct? TUHY:Well, in a sense because I’m not sure if the, if Mr. Witcher or whoever their engineer may be, their soils engineer, if that’s going to change any of the topography because he has a topo map. So Exhibit No. 12 includes the topo and it shows the elevations and the proposed elevations. I don’t know if that’s going to change the elevations or not, Mr. Commissioner; but I would say that it should be resubmitted to the Department to see if it’s compliant so that everybody can take a look at it. Because if you simply removed that stonewall, it would change. I believe the testimony is you have no retaining wall from which to determine where your fill is going to stop and start on the north end of that wall. GRAHAM:Sure. Let me try to be more specific then. So you want the proper information of what’s going to happen before the Planning Department and Building Department, whomever, so that they will take the appropriate action. But it’s not like that should affect any conditions that we put on now, other than the fact that we require that it be accurate. Is that correct? EXHIBIT B 9 TUHY:Correct. Yes, that is correct. GRAHAM:Okay. Thanks. The prior violations issue, again, the fact that you want some sanctions here for prior violations, that doesn’t affect what should be in our conditions as far as what is going forward and for the development of the property in regards to this SMA permit? It’s just sort of a backward-looking that you would like to see part of the permit so that it would get cleaned up? But it’s a backward- looking thing, it’s not a forward-looking thing, that we have to require anything different because of that as far as what actually takes place. Is that correct? TUHY:Yes. That’s correct, also. GRAHAM:Fine. Thank you. ALAMEDA:Thank you, Commissioner Graham for that summary. Any other questions for the Intervenor? Okay. Mr. Director, I know you also have the Hearing Officer’s report and you’ve heard some of the, the five points in particular. You have a position on the report or response to the five points? YUEN:The Corporation Counsel will present our position. ALAMEDA:Okay. Thank you. Ms. Todd? LEITHEAD-TODD:We are basically in support of adopting the Hearings Officer’s Recommended Findings of Fact, Conclusions of Law decision and Order. There are, we didn’t file any Exceptions ‘cause we didn’t object to any of his Findings or, though I think some of the Conclusions and the Findings may be mixed by some of the Findings that are actually listed as Conclusions. But I did have, you know, some concern in terms of whether there were enough Findings. And, in particular, if you look at Page 10 of the County’s proposed Findings of Fact, Conclusions of Law and, no, actually, starting on Page 9. If you start with the County’s Finding of Fact No. 49 and then just about everything on the Findings on Page 10 and then through No. 67, and then No. 69 and 70, I thought that basically those should be added. And the reason is that when I looked at his Findings, he didn’t address some of these items; and I thought that they were relevant ‘cause there was testimony. Like on, in particular, if you look on Page 10, if you look at Finding 51 where Mr. Witcher provided the grading plan and a sewer-designed plan to serve the property; that No. 52, “structures and renovations will meet the County Engineering Division’s flood erosion, sedimentation, erosion requirements;” that No. 55, “The development’s grading plan will have no impact on the neighbor’s property and the impact upon the subject property is within the parameters set forth by FEMA;” No. 56, “That dirt and gravel that has been deposited on the property is not in the flood plain;” No. 57, “The pile of dirt/loam is to be used as fill and for grading the property so that the majority of the property will slope towards the street rather than the ocean; No. 58, “Sloping the property toward the street reduces the flow of water to the ocean;” No. 59, well, 59’s actually covered elsewhere; No. 60, “The shoreline is lava rock;” No. 61 is a technical thing but it refers to the fact that they’re doing excavation of the crawl EXHIBIT B 10 space which will raise it above base flood elevation; and then it’s related to Finding of Fact No. 62, which is that “Excavation will greatly reduce the impact of storm surge.” The reason I included those Findings is that the engineers testified, and the concerns had been raised about storm surge coming in -. Raising the elevation of the building and doing that excavation to meet that base flood elevation has been testified by the engineer that had been hired that that reduces the impact of the storm surge in that area. So I thought that that was relevant. And perhaps irrelevant, because ultimately they will be hooked up to cesspools is No. 64. But I did include that because there was testimony that the main house and guest house had been lifted to allow hookup to the sewer system, that’s so that they can gravity-flowed. They are currently hooked up to cesspools but they will ultimately, as a condition of this permit, if it is approved, be required that all of those buildings would be hooked up to a sewer system. So those are the ones that I thought kind of added -. They’re not technically required. I think the proposed Findings and Conclusions of Law can stand by themselves. But I thought the Commission might want to look at whether they wanted to add additional Findings to clarify some of the other evidence that was presented at trial, at the hearing. ALAMEDA:Thank you. Very good. Fellow Commissioners, any questions for Corp. Counsel? Commissioner Graham? GRAHAM:I just, I don’t know that this is important but when you’re talking about like the 69 or 67 there, “All conditions requested by the County will be complied with if the permit is granted.” LEITHEAD-TODD:Yes. GRAHAM:Well, I don’t know if that’s to be a fact. I mean, we could put in there as a Finding that the Applicant represents that all things will; but, I mean, legally, I don’t know that’s a fact. So I don’t see any way I can say that. LEITHEAD-TODD:You could amend that. But in order to get, they represented that they would comply. ALAMEDA:Commissioner Graham, you okay with that amendment, I mean, response? GRAHAM:If the Applicant represents that -. ALAMEDA:Yes. GRAHAM:Sure. ALAMEDA:Okay. Any other questions for Ms. Leithead-Todd? Commissioner Iwashita? EXHIBIT B 11 IWASHITA:Is there any position you want to take on the points Mr. Tuhy made, any of those five points? LEITHEAD-TODD:Well, I felt that most of his position and his points had been taken care of through testimony at the hearing and had been addressed, and that the conditions being required of them would also take care of the other concerns that they have. You know, one of the biggest concerns that they raised was effluent; and that’s a result of the existing buildings being hooked up to cesspools. A condition of the permit actually improves that situation because if the permit is granted, then all of those buildings would be hooked to a sewer system. And, so, even if there is, in fact, effluent which could actually be attributed to the Evans’ residence, and we didn’t have expert testimony saying that it is, in fact, attributed to their property, but if it is effluent, if it is, in fact, attributable to the Evans’ residence, the hookup to the sewer system will take care of that. It will improve that situation because you will no longer have cesspools that you would have effluent. You would be going into a sewer system instead. So I really feel that some of the concerns that they have are actually addressed through the permit conditions. ALAMEDA:Commissioner Iwashita, follow-up? IWASHITA:Thank you. And as far as the suggestion to require removal of the loam or stockpiled material -? LEITHEAD-TODD:If you looked at some of the Findings that I had there, part of the reason for that, and was testified to by the engineer, is that they want to change some of the slope of the property to try and reduce any potential runoff into the ocean that comes off of the buildings. And, so, basically in one area, they’re going to change the slopes so that instead of sloping towards the ocean, they will do a gentle slope the other way; and then that allows if you’ve got slope going the other way, it allows some ponding if in the event of a big rain, and it reduces the impact on the ocean. And, so, they had testified that when they were done with that any excess material that had been brought onto the property would be removed. But it was part of a plan to actually try and improve potential runoff to the ocean; and that was in the testimony of the civil engineer, Mr. Bruce Witcher. ALAMEDA:Commissioner Iwashita? IWASHITA:I think everybody agrees that doing that sloping thing is a good thing. The point I think trying to be raised by Mr. Thuy is that just stockpiling of the material there is not a good idea, especially now if we’re in the middle of hurricane season and the potential for it to be blown or washed off the property into the bay. And so that should be removed, stockpiled someplace else, that’s the concern, I think. LEITHEAD-TODD:I had in my proposed Decision and Order, and I kind of threw this in because I remembered in other places where we had gone in after there had been issues of runoff, that we required that people take steps to mitigate. So I was suggesting that there should possibly be an additional condition that during construction and until all the work is completed, that they should take steps to insure that the silt and loam that have been brought onto the property does not present a problem. And that would mean the kind of structures that the Department or the, I guess, maybe through grading permits, they have those barriers erected to help prevent things running off. And so I had recommended that that would be an additional EXHIBIT B 12 condition that just for, it’s not like a condition of the permit, long-term, but that during construction that they should take steps to insure that the dirt and loam is not in a position to runoff, so they put some kind of barrier up. ALAMEDA:Okay, Commissioner Iwashita, would you like to response to that? IWASHITA:Okay. So, that’s, I think everybody would agree to that condition. I guess what I’m trying to get at is that the way it stands now, you know, there is a risk of the material being washed into the bay. So what’ll we do to prevent that from happening, pending all the permitting -? You know, I don’t know how long it’s going to take to go through the whole process and get permits. But if it’s going to be there for another six months, a year, or two -. LEITHEAD-TODD:Well, the testimony of the engineers of the case really was that there wasn’t much concern of that, that it was out of the flood plain.But I think that the concerns can be addressed by requiring mitigation measures during construction. Because, you know, if they get the permit, they go ahead and they need that to help slope the property and -. You know, I don’t know that it’s practical to require it to be moved if they’re going to bring it back. So, you know, you erect the silt fence between the stockpile and the ocean to prevent potential runoff. And that’s what you would do at any point that you brought that in in normal construction, but you can make that a condition. IWASHITA:Who’s bearing the risk that, you know, in the next, within this hurricane season there’s a, the material get washed into the bay and corrective measures have to be taken to prevent, you know, long-term damage to the bay? LEITHEAD-TODD:Maybe the Applicant’s attorney might want to take, field that one. ALAMEDA:Sir? JUNG:Mr. Chairman, first I’d like to clarify. This loam is 120 feet from the shoreline. It’s set backed, it’s not right on the shore. The house itself will not be built -, is beyond the 40 feet. The material that would be used to grade towards the road and away from the ocean is 120 feet away from the shoreline. But to further clarify it, if we may, Mr. Conventz is the consultant on development, I’d like him to address that issue. ALAMEDA:Okay. Any objection to that? Mr. Conventz, could you please state your name and address for the record? CONVENTZ:Klaus Conventz, P. O. Box 2308, Kailua-Kona, Hawai`i 96745. ALAMEDA:You may proceed. CONVENTZ:May I approach the board? It’s easier to demonstrate on the drawing. ALAMEDA:Okay, let me ask since Commissioner Iwashita raised the question, it’s pretty much his floor. So Commissioner Iwashita? EXHIBIT B 13 IWASHITA:Yeah, I just want to make sure that what’s being addressed is, you know, who’s bearing, if we don’t require the removal of the material, who’s going to bear the risk that if the material actually gets into the bay and, you know, damages caused, who’s going to bear the risk of fixing it or, you know, whatever is involved if that happens? JUNG:Mr. Iwashita, obviously, will be the Applicant. ALAMEDA:Commissioner Iwashita, follow-up? IWASHITA:So is that going to be a condition of approval if we go forward? JUNG:Yeah, I think that the Hearing Officer’s recommendation, Mr. Gibson, was that steps be taken to insure that this does not occur. The risk would be taken by the Applicant but the intent is to use that loam which is 120 feet away so that the grading is actually benefiting and preventing further erosion of the shoreline. In other words, it’s going to reverse the flow so that if anything where to come in from the hurricane it would flow out to the road, not towards, actually, towards the retaining wall and not towards the ocean. And so it would be used in an affirmative way to prevent any seepage of loam into the shoreline or to the water. If you remove it, then you’re actually inhibiting the ability to regrade, which is what you want to do and what Mr., what you were actually testified to, in his testimony at Page 3, Paragraphs 8 and 9 of his testimony. ALAMEDA:Okay. Commissioner Iwashita? Follow-up? IWASHITA:No. I guess, you know, we all agree that it’s a good idea to, you know, to use material to grade, establish a grade and drainage away from the shoreline. I think everybody agrees to that. I guess the concern is that this material is brought in before any kind of permitting process was started and, you know, before any of that, and that it sits there on the property and it’s a risk, there’s a risk of it going into the bay. So, you know, I don’t know, well, I’m not sure if it’s one truckload, or two truckloads, or whatever it is. But it doesn’t seem to me to be that expensive to remove it temporarily until all the permitting is done; and then it can be brought back at an appropriate time to be, you know, when it’s actually going to be used and be in a stable condition, and have all these other mitigation factors in place in order to reduce the risk of all the material getting into the bay if there’s a disastrous kind of event. So, you know, I guess that’s my like, thing, is that if it’s going to cost $500 or $1,000 to remove this material, yeah, that’s a much better way to go than to, you know, leave it there and stand the risk of it going into the bay and causing problems in the bay. ALAMEDA:Okay. Commissioner Iwashita, do you need any more -, is that a question? You’re satisfied with the discussion so far? IWASHITA:Yes. ALAMEDA:Okay. Commissioner McCall? MCCALL:I guess the question, probably for Bobby Jean or I’m not sure who. In Mike Gibson’s conditions that were, let’s see where am I, about the sewer, I’m lost now. Oh, okay. You know, his condition, well, in the condition, “The Applicant shall be required to hook EXHIBIT B 14 up the existing and new structures to the existing private sewer system on Ehukai Street,” does that include the structure that is owned by them but is on the other TMK? I’m not, I’m just not clear whether we’re talking all four structures -. ALAMEDA:Ms. Todd? LEITHEAD-TODD:The structure on the other TMK is already hooked up to the sewer system. That’s my -. MCCALL:It is already hooked up. Okay, so we’re talking just -. LEITHEAD-TODD:Mr. Evans, the house you live in, isn’t that one -? CONVENTZ:The two-story house, yes -. LEITHEAD-TODD:The two-story house is hooked up to the sewer system? CONVENTZ:No. EVANS:No, that’s not -. LEITHEAD-TODD:That’s not true? EVANS:I believe there is a -. ALAMEDA:Microphone, sir. Could you please state your name and address for the record since you’re going to speak? EVANS:Peter Evans. ALAMEDA:Okay. Address? EVANS:It’s 78-131 Ehukai Street, Kailua-Kona, Hawai`i. ALAMEDA:Thank you. You may proceed. EVANS:That building is, I believe, hooked up to a septic tank which is in the center of the property, in the center of the driveway, in the space that you would see between the two buildings along Ehukai Street. ALAMEDA:Commissioner McCall, follow-up? MCCALL:Yeah. Or maybe just for a, I mean, I personally would prefer to see all the structures owned by the Trust put onto the sewer system. I don’t know whether, I guess this is maybe a question, whether that one house is part of this SMA application, whether we can put any requirements on there? I guess that’s a question for the Planning Director or Bobby Jean. EXHIBIT B 15 EVANS:It would be our intention to hook up all buildings on the property to the sewer; and we would agree to that as a condition. MCCALL: Okay, thank you. ALAMEDA:Commissioner Graham, you had a question? GRAHAM:Yeah, I think to the Applicant’s representative, Mr. Jung, probably is the right person. I’m trying to sort of settle on the ground what this fill material is all about. Now my understanding from reading the transcripts and all is that basically we have that rock wall, let’s just say roughly bisecting the property. My understanding from what I read was that the flow, let’s say, of rain water is generally going to be from the rock wall going away from the ocean; but that everything from the rock wall toward the ocean is generally going to kind of flow towards the ocean. Now, we’ve already sort of said that, for our point of view and I think you all agreed it’s good to have stuff flow away from the ocean. So, consequently, if the fill is going to serve any purpose that we like, the fill has got to help things flow away from the ocean so all the fill should go on the mauka side of that rock wall. Is it all on the mauka side of the rock wall currently? JUNG:That is my understanding, yes. And if I may, Mr. Conventz actually did some of the site work and Mr. Peter Evans can testify personally of the observation; but everything that we’ve said, that’s where the fill is right now. ALAMEDA:Mr. Graham, do you need further explanation? GRAHAM:As long as everybody agreed as to where it is and it’s all mauka of the rock wall, then my concerns are much reduced in regard to the fill. THUY:Mr. Chairman, may I make just a comment on that subject. I’m sorry, I didn’t -. ALAMEDA:Okay, let me ask Commissioner Graham. Is it okay if -? GRAHAM:Certainly. ALAMEDA:Sure. Go ahead, sir. TUHY:Thank you. What I point out is I think the assumption that this is fill material needs to be corrected. It has not been certified as such. And among the Findings of Fact that we have, and we’ve cited the record, Mr. Witcher had testified that he had not certified whether or not this met the compaction standards of ASTM. He testified to that in Volume I, Pages 40 to 42. So the first day of the testimony he said I don’t know if it’s good fill material or not. This is simply brought on the property back in 2004, before any of the SMA issues ever came up. The second thing is he had not determined whether or not this type of loamy type material is not compacted material, it’s sandy, loamy material. You can’t compact it. It very well may be totally inappropriate for fill, so I wanted to point that out. Also, that if that fill material were used in its present state, whether or not that would change the base flood elevation, that certification is required by Chapter 27 of the Hawai`i County Code. That also would not EXHIBIT B 16 have been certified by Mr. Witcher or by any other engineer. So when we’re dealing with this stockpiled material, it’s, nobody here can say that there’s anything in the record, ‘cause there’s not, any certification that this would be appropriate for that type of use. That is the reason that we had asked that it simply be removed. It shouldn’t have been there in the first place, wasn’t permitted, and it does pose an immediate and, we think, very significant ecological risk. And if the Commissioners were to say, okay, you can get a variance from that or we won’t make you move it, at least get some certification that it’s appropriate for fill material, we would ask at bare minimum, and that its use would not change the base flood elevation because it’s a loamy, non- compacted type material. ALAMEDA:Let me ask Commissioner Graham, do you need further comment? I know the consultant would like to say something. Do you need -? GRAHAM:He’s certainly welcome to say something. I feel like my questions have been answered, though. CONVENTZ:I think Mr. Witcher was completely misquoted. Mr. Witcher had testified, so did I, that the majority, the vast majority of that pile which sits on the, if you look at the map top, the new house in the center on the top and the garage workshop to the right towards the road, that is between the main building and that workshop. That is exactly on the mauka side of that existing rock wall through the property, mostly in X Zone, Flood Zone X, that means outside AE of the E Zone. And the testimony was that the majority of that material will be used and is absolutely no matter what usable within the X Flood Zone. However, where Mr. Witcher and I testified to was that it was indeed not determined whether any excess material beyond that purpose would be suitable to be actually filled inside the actual Flood Zone, that flood channel there; and that would have to be determined; and it was all in the testimony, if there is not the one we can use for that purpose then it will be removed. ALAMEDA:Okay. CONVENTZ:And that is quite different from what we just heard. ALAMEDA:All right, thank you for sharing. All right. Any other questions? Back to the Applicant then. You know, again, Fellow Commissioners, we have an opportunity, we have some options. We can look at the Hearing Officer’s report as is, we’ve heard the several points from our Intervenor, we’ve heard our Applicant share as well. Are there any more questions or information we need before we entertain a motion? Commissioner Graham? GRAHAM:I just wanted to return to when we started this after lunch. The Applicant had a whole list of things that maybe you’d like as Findings of Fact, I think, to go in. And we kind of put that off so we could cut to the chase. So I just said before you’d have an opportunity, so I want to extend that opportunity if there’s something that we need to deal with amongst those things, given where we are now. ALAMEDA:In the mike, please. JUNG:The only, I would just join with Corporation Counsel’s expressions with respect to the particular paragraphs that our Corporation Counsel Leithead-Todd had mentioned. EXHIBIT B 17 And those specific paragraphs I would ask be included as far as any order from the Planning Commission is concerned; and if I would I would just -- I know that the Corporation Counsel has kept that list; and if she could address those, we would adopt those. ALAMEDA:Okay. And let me ask for the Applicant to, now that we’re now in Final Arguments, is there anything else to add in regard to that? JUNG:Thank you, Mr. Chairman. I think that the primary issues that were raised by Commissioner Graham are of primary concerns. Certainly you don’t want any seepage into the ocean, whether it’d sewage or whether it’d be loam. I would simply note that the Applicant lives there and has lived there for quite sometime. With respect to the precautions that are taken, the houses would tie into the sewage system. That would eliminate any of the issues dealing as far as sewage is concerned. I’d also note that the Findings of Fact by the Hearings Officer, contrary to I guess the position of the contestant, I would just note Page 12, Paragraph 59 of the “ Hearing Officer’s Recommended Findings of Fact and it says, Petitioners conclude that sewage is seeping into Keauhou Bay from the Applicant’s Properties, and, as a result thereof, noxious odors are generated.” The Hearings Officer has found that there is no probative evidence or legal basis to support the allegation that sewage is seeping into Keauhou Bay from the Applicant’s property. But even if it was, the condition of approval from the Commission would be that we would tie into the sewage system. With respect to the loam on that issue, we would do anything that would, to protect the environment, particularly in front of the Applicant’s house. And if the Commission feels that there should be some kind of stockpiling permit or bond, that would be acceptable. But, again, the intent was to protect the environment, not to hurt it. ALAMEDA:Okay. JUNG:Thank you, Mr. Chairman. ALAMEDA:Thank you. Closing Arguments, Intervenor? TUHY:If I may address that last issue first, the hookup to the private sewer system is not going to completely take care of the problem. You clean up what you left off with. What we’re asking for, and I think it’s thoroughly appropriate and there has been nothing in this record to indicate that it’s not thoroughly appropriate to do this, whether or not it’s leaching from that property or elsewhere, abandon, appropriately abandon, and terminate the cesspool system. I think that should be a condition of this SMA process. ALAMEDA:Okay. TUHY:With respect to the stockpile, I think you understand pretty clearly what’s needed there so I won’t argue that anymore. I do really believe that anything short of removal would be not really in the best interest or in keeping with the purposes of the SMA permit. Getting back just to the matter of the shoreline certification, we still haven’t heard anything which would suggest that that should not be completed. We still don’t have a redesignation or recertification of that shoreline survey. So, and there wasn’t anything before the Hearings EXHIBIT B 18 Officer and there’s nothing before you. So we’re simply asking that you follow the rules; and the rules are very clear, get an up-to-date shoreline certification; and that’s right in the rules. So we’re asking that that be done. We don’t need to hurry up. I think we need to step back and make sure it’s done right; and if there has been a change in the shoreline, then we should know that. As to the grading plan, very important that you understand, as Mr. Graham indicated, that we have the flow going in the other direction. Very important I think to have that grading plan before the Department; and I agree it shouldn’t be anything that needs to be done by this Commission. But it should be a condition that the Department be aware of what those plans are and accept or have before it the actual plans, rather than plans that are in the mind of the engineer, which is really what the evidence was. And that’s the last. ALAMEDA:Thank you, sir. Any arguments, Ms. Leithead-Todd, if any? LEITHEAD-TODD:I think that the Hearings Officer’s proposed Findings of Fact, Conclusions of Law are sufficient. I think it could be made better with additional Findings. And then the question of what Findings you would want to add, I was going to recommend findings from the oneS submitted by the County, Items 50 through 58, 60 through 66, 67 to be amended to say that the Applicant represented that the conditions would be complied with if the permit was granted. And then Conditions 69 through 71; and, let me just check, I need go to Condition 75. Separately, conditions that I did not mention that the Commission may want to consider adding on are Findings proposed by the County, Findings No. 75 through 81, and then 83 through 90; and these are Findings just about the testimony of the Joye’s regarding runoff, what activities occur in the bay, their concerns over their viewplane, and what type of activity they’ve seen, like the kayaking and swimming. I don’t think they’re necessary but if the Commission wanted to add them in, it might help because it does go to what kinds of public use of the bay is in the area. But I think the bottom line is that they’re kind of in some ways irrelevant because the Hearings Officer found that there was no significant impact on the public use; and because this is a house on property, it wouldn’t impact snorkeling, kayaking and swimming in the bay. And it doesn’t impact fishing because there had been testimony that the fishing boundary had been moved from inside the bay out to the mouth of the bay, so that’s basically not allowed anymore anyway. So I don’t think that they’re necessary but you might want to consider if you want to add them in because they were part of the hearing and did address what types of activities were seen. ALAMEDA:Okay. Like every other Contested Case, the Applicant has the final say or any final words. CONVENTZ:I would like to clarify, please, this is shoreline certification. Typically, one year is correct. And it says the “beach,” where an erosion is possible or sizeable erosion, that applies. But in this case, it should be pointed that the we are dealing with a pali, there’s a lava, solid rock lava 8 to 10 feet high, and where also what was found that the certified shoreline submitted for this application was approved April 26, 2004. The survey shows that the shoreline follows along the upper reaches, certified on –. ALAMEDA:Mike. EXHIBIT B 19 CONVENTZ:Certified on August 25, 2000 and re-certified on October 8, 2003. So we have four years already where there was really no change; and practically from the aerial photo we see that actually there was no change in the last 20 or 30 years, and at least not a sizable one. Certainly there is an erosion by the millimeter, that is correct; but not one that the Planning Director would require to repeat, and repeat the certification after 12 months in this case before we are through with the variances and all the paperwork and applications. We would have at least, if you follow this suggestion by Mr. Tuhy, we would have at least three certification, and recertification, which the Planning Director did not find necessary. ALAMEDA:Okay. LEITHEAD-TODD:Mr. Chairman, I might mention that, you know, Mr. Darrow did go on the property, in a review of the map, and there’s, the Department, you know, has assessed this, knows where the buildings are being proposed; and the purpose of a shoreline certification is to make sure that you don’t build within, you know, 40 feet of the shoreline. None of these buildings is close to 40 feet. They are, and the closest one is 60 feet and the evidence is that the shoreline has not changed. That’s because this is a rocky shoreline, it’s not a beach one. It’s not where there’s substantial evidence of any subsidence. And, so, the Department was comfortable with its evaluation of the property that it was more than 40 feet back of the shoreline, and as it has been certified twice in the past. ALAMEDA:All right. Commissioner Rho, questions? RHO:I have a question about that. Does that 40 feet refer only to buildings? LEITHEAD-TODD:Well, it’s usually, it’s supposed to be any kind of structure. If you wanted to do anything within that 40 feet, you’d need to get permission. And it would only occur usually in lots that because the lot is so small that, you know, you might need to have some leeway and get closer. But normally you don’t want anything occurring in that 40 feet. And so their house is well back; and the wall that was discussed is behind the houses. RHO:Yeah, I’m bringing that up because on Page 11 of Mr. Tuhy’s report or whatever you call this, it refers on No. 11 to plantings; and I’m not sure that plantings affect that 40 feet. LEITHEAD-TODD:No, you’re allowed to have plants. RHO:Okay. Thanks. ALAMEDA:Fellow Commissioners, and so you know, too, that the formal, you know, we just had Closing Arguments and now it’s our opportunity to ask questions. And, so, for you all, you know, you’ve just got to sit back and just kind of see if we have any questions, ‘cause if not then we’re going to be ready to entertain a motion. Any questions? We also have to close the hearing, so do we need to make a motion for that? TORIGOE:You can do that as a Presiding Officer, or you can have a motion. ALAMEDA:Can I entertain a motion to close the hearing -? EXHIBIT B 20 GRAHAM:Before we ask questions? ALAMEDA:Before go into deliberations, we should close the hearing? GRAHAM:Before we ask questions, you mean? MCCALL:If we have questions -. TORIGOE:I just, it seems like there may be some more questions that the Commissioners may want to ask, so you should do that before you close the hearing. ALAMEDA:Oh, okay. All right. Commissioners, questions? Commissioner Graham? GRAHAM:I’d like to ask the Applicant, seems like one of the primary issues we’re dealing with is the cesspools and the sewage system hookup. And also I want to look at the proposed Findings, the proposed Decision by the Hearings Officer, and on Page 15 where he gives the conditions; and it seems like Condition 6 is one that it goes right to the question of the sewage. So I’m thinking of two things that need to be sort of added to that. One is closing the cesspool connections and the other is some kind of timing condition. And I just want to sort of indicate roughly where I’m coming from and you tell me if that’s an issue. So, we’ll say, “The Applicant is required to hook up the existing and new structures to the existing private sewage system on Ehukai Street and to close all cesspool connections,” and then the timing “prior to certificate of occupancy on the new building”, or something like that, just so we have a time on it? JUNG:No objection. GRAHAM:Thank you. ALAMEDA:That’s great. TORIGOE:In compliance with State and Federal law. GRAHAM:And then I have one correction on a related issue -. ALAMEDA:Sure. LEITHEAD-TODD:I’m -? ALAMEDA:You have a follow-up? LEITHEAD-TODD:I don’t know that the term “certificate of occupancy” is the correct thing. But, you know, usually you have an inspection that occurs before final inspection of buildings. And I want to note that when you hookup to a sewer system, Department of Health requires you to fill in the sewer, the cesspool. You’re not just to disconnect, you have to -. ALAMEDA:Fill in. EXHIBIT B 21 LEITHEAD-TODD:And that’s already required by State law. GRAHAM:But that doesn’t hurt us to just put in what the -? TORIGOE:Closing in compliance with Federal and State law. ALAMEDA:So, something along the lines that it’s, you know, closing in compliance with Federal and State laws? GRAHAM:That’d be fine. ALAMEDA:Okay. GRAHAM:And then one question for Mr. Torigoe. We’ve heard a little bit about the certification of the shoreline and what’s required in our rules and all. If we don’t feel that there’s likely any significant change in the shoreline, given the nature of it, in this particular case, are we permitted by our rules and by law to not require a new certification even though the prior one is more than one year old? ALAMEDA:Mr. Torigoe? TORIGOE:I haven’t thoroughly researched that particular question. I think, it seems like though for SMA permit purposes, you basically make fact-findings based on the preponderance of the evidence. So unless there’s, if somebody can point out a specific rule that says that you can’t, you know, grant an SMA permit without a currently certified shoreline, you know, I think you can basically go with what the preponderance of the evidence is. ALAMEDA:Commissioner Graham, follow-up? GRAHAM:And one final thing for Mr. Torigoe. I know when the Intervenor first spoke to us, and maybe in his suggested conditions, he was talking about sanctions on the Applicant for prior actions. I don’t think that’s something we typically do; and also I don’t think there’s any sentiment here for imposing monetary sanctions for prior actions. Am I correct in hearing it’s not really our purview? TORIGOE:Yeah, normally, the granting of the permit is perspective as forward- looking and not a matter, it’s not an enforcement proceeding, hello -. (Recording system not working properly) Yeah, it does not appear to be an enforcement proceeding. But, then again, you know, I think it would be within your authority to consider requiring compliance, if there’s specific compliance that you think ought to be and can practically be applied on a particular case. ALAMEDA:Follow-up, Commissioner Graham? GRAHAM:No, but I think Mr. Tuhy had said something that said, if you had a comment briefly? EXHIBIT B 22 TUHY:If I may. With respect to comments concerning the requirement for a certified shoreline survey, Rule 9-11A, Subsection 1, Subsection (i), County of Hawai`i Planning Commission Rules, requires that the SMA permit be accompanied by current shoreline survey. HAR, which is the Hawai`i Administrative Rules, that’s Section 13-222-11, which permits a shoreline survey to be good only for a period of one year, unless that survey is based on fixed artificial structures which have been approved by an appropriate government agency. So the only method under Rule 9-11, Sub A.1.i is for the Director to waive a requirement as opposed to evidence. So I think that is something I simply wanted to comment on and I believe that’s how the rules read with respect to shoreline certification. GRAHAM:Thank you. TUHY:And just one last thing, if I might. Development does not, is not limited under the shoreline, I’m sorry, under the SMA. Development is any activity, including plantings, and I disagree with Ms. Todd just on that issue. Plant, any activity within the shoreline setback is not permitted without an SMA permit. And I think that includes plantings; but it also includes any fill activity, not just the construction, so that does extend all the way to the shoreline. Thank you. ALAMEDA:Commissioner Graham, follow-up? GRAHAM:No. Thank you. ALAMEDA:Commissioner Iwashita? IWASHITA:Just a clarification. When the SMA application was submitted, the shoreline certification map was current as of that time, is that correct? Or had it already expired? ALAMEDA:Or was it waived by the Director? TUHY:We were under the impression that it was waived because the approval that was granted by the Chairman of the Board of Land and Natural Resources, was on April 26, 2004; and that’s Paragraph 25, Page 6 of the Findings of Fact and Conclusions of Law of the Hearing Officer. And, also, was a, as far as any waiver is concerned, this is not where you have a vegetation line or a debris line which normally you base your certification on, what a sandy shore, this is a shoreline that is all lava. ALAMEDA:Commissioner Iwashita? IWASHITA:So I guess sounds like then, to make the record clear, there should be an expressed waiver of the, requiring the current shoreline certification map with this application? ALAMEDA:Who you’re directing that question to? IWASHITA:Whoever wants to -. ALAMEDA:Ms. Leithead-Todd? EXHIBIT B 23 IWASHITA:I’ll leave it up to the Chairman. LEITHEAD-TODD:Okay, I’m going to turn this over to the Planning Director -. ALAMEDA:Okay. LEITHEAD-TODD:‘Cause we have some rules that the Department has regarding when the Department can waive certification. ALAMEDA:Okay, thank you. Mr. Director? YUEN:Rule 11 of the Planning Department’s Rules, which is entitled “Shoreline Setback,” says that – wait, now, I’ve lost it. And this is in terms of the, oh, yes. This is Rule 11- 4C, and “The Planning Department may waive certification requirement in cases where there may be special or unusual physical circumstances or conditions of the land or where a structure or activity is proposed at a considerable distance inland. Setback lines shall be conservatively, but reasonably established.” Anyway, that’s the first. And if it was not, I believe it was impliedly waived by the Department accepting the application with the shoreline being, with the structures being proposed at a considerable distance inland of the shoreline setback. To the extent that it’s necessary to make an expressed waiver, I would do so based on the physical circumstances of the area and the distance involved from the shoreline. On the second point of activities that are permitted within the shoreline setback area, to be really precise about this, there are a number of activities that are allowed within the shoreline setback area with written approval of the Planning Department. A number of these is minor structures or, just to give -- I don’t know if it’s necessary to give a comprehensive list here. But minor structures and activities -- A minor structure is something that does not alter the existing grade of the shoreline setback area and is limited to landscaped features, i.e., benches, chairs, borders, wooden trellis, bird feeders, assigned safety improvements, etc., walkways for access and sprinkler systems. And a minor activity is an activity that does not alter the existing grade of the shoreline setback area; and they include activities such as landscaping and minor clearing or grubbing of vegetation. So there are a number of things that are allowed with clearance from the Planning Department within the shoreline setback that don’t require an SMA permit or a variance from a shoreline setback. I think that should deal with those two questions. ALAMEDA:Follow-up, Commissioner Iwashita? IWASHITA:Just, I guess as far as establishing the shoreline setback line in this case, the rule says that the minimum is set at 40 feet. So I guess given the fact that we don’t have a current map, I was going to suggest, you know, maybe setting it at 45 feet or something in this case and that would take care of anybody’s concerns about whether or not, you know, there has been any erosion or something like that. ALAMEDA:Okay. Who are you asking? The Applicant? IWASHITA:Yeah. I guess so, whether you agree to a 45-foot setback. JUNG:No objection. EXHIBIT B 24 ALAMEDA:Any other questions before we entertain a motion? Commissioner Rho? RHO:I guess this is for the Applicant. On Page 2 of the Hearing Officer’s report No. 4 and, again, on Page 6, No. 24; and the last page of his report, they mention or he mentions this rock wall or fenced wall. I wanted to know what the Applicant’s intent is with those existing walls? JUNG:Yeah, if I may. There’s, simultaneously with this, their application for variance for those walls, my understanding is that concurrent with the application, the variance would be granted for both, was granted. ALAMEDA:Commissioner Rho, I think you’re asking the intent of the wall, though? RHO:No, no. But the variance had been granted? JUNG:Yes. RHO:Thanks. ALAMEDA:Okay. Any other questions for the parties before we close the hearing? Seeing none, is there a motion to close the hearing? GRAHAM:I move that we close the hearing in this matter. MCCALL:Second. ALAMEDA:Motion made to close the hearing by Commissioner Graham, seconded by Commissioner McCall. Staff? DARROW:Thank you, Mr. Chairman. Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Galdones? GALDONES:Aye. DARROW:Commissioner Iwashita? IWASHITA:Yes. DARROW:Commissioner Rho? EXHIBIT B 25 RHO:Aye. DARROW:And Mr. Chairman? ALAMEDA:Aye. DARROW:The motion passes to close the hearing. ALAMEDA:All right. Hearing is closed. Any motion to, anyone would like to make a motion either way so that we can go into discussion? Commissioner Iwashita? IWASHITA:Thank you, I guess, Mr. Chair. In the matter of SMA 05-006, Applicant, Catherine V. Giacometti Evans Family Trust, I move that the application be granted pursuant to the Findings of Fact and Conclusions of Law and Decision presented by the Hearings Officer in this matter, and in addition adding the additional Findings of Fact, as stated on the record by Corporation Counsel representing the Director in this matter, and with the additional amendment that the shoreline setback be established at 45 feet per the agreement of the Applicant. ALAMEDA:All right, just checking up if we missed anything. That’s about it. All right. Is there a second or -? GRAHAM:I wanted to offer a friendly addition or something? ALAMEDA:Sure, a friendly amendment. Go ahead. GRAHAM:With regard to the Finding by the Hearings Officer, No. 6 on the Conditions, where I kind of re-spoke it where the Applicant will close cesspool, excuse me, “The Applicant is required to hook up the existing and new structures to the existing private sewer system on Ehukai Street and close cesspool connections prior to final inspection and in conformance with the Department of Health regulations.” ALAMEDA:Do you accept the amendment? IWASHITA:Yes. ALAMEDA:Okay. IWASHITA:And I guess, also, with regard to the, since we’re approving it prospectively, I wanted to make it clear that any, I guess, ramifications for past violations not be, that it be left to the Director, I guess, in terms of dealing if there’s going to be any follow-up with that, so that it be clear on the record that our approval is not sanctioned or validate the past violations. ALAMEDA:Okay. That’s all, Fellow Commissioners? GRAHAM:Good, and I second the motion with all that. EXHIBIT B 26 ALAMEDA:Okay. Motion made by Commissioner Iwashita, as noted with the various additions, and seconded by Commissioner Graham. Discussion? Mr. Torigoe? TORIGOE:I just want to take inventory, see if you wanted to do anything on a couple of other matters that came up regarding the stockpiled material. You want to add something in a condition that says that the use and treatment of the stockpiled material shall be done in compliance with Hawai`i County Code, Chapter 10 and Chapter 27, as maybe applicable; and that any fill not so used should be removed from the property? IWASHITA:That’s fine. MCCALL:That’s fine. TORIGOE:Also, I would suggest putting in, we have kind of a standard integration clause that says basically that the Planning Commission has considered the proposed Findings of Fact, Conclusions of Law and Recommendations submitted by all parties to the Hearings Officer, and also considered the Recommendation of the Hearings Officer, and that to the extent not specifically disposed of the Planning Commission accepts and incorporates all proposed Findings and Conclusions consistent with the Findings and Conclusions now being adopted; and that the intent of those consistent Findings and Conclusions shall be expressed by and superseded by the language of the written Findings of Fact to be prepared by the Presiding Officer. Also, that the Commission rejects all proposed Findings and Conclusions not consistent with the Findings and Conclusions to be drafted by the Hearings Officer. That’s just kind of a standard thing to take care of, you know, loose ends. ALAMEDA:Okay. Commissioner Iwashita, you okay with that language? IWASHITA:Yes, fine. ALAMEDA:And Commissioner Graham? GRAHAM:Yes. ALAMEDA:Okay. Fellow Commissioners, in addition to what Mr. Torigoe had suggested, is there any other discussion items, thoughts? Commissioner Graham? GRAHAM:I just had one other thing in line with what the Intervenor was requesting on No. 4, this is Page 15 where it says, “All earthwork and grading shall conform to Chapter 10.” The Intervenor was asking that the Planning Department be given, you know, be given for its consideration the currently planned grading proposal as opposed to what it was it was originally given. I believe that’s an accurate statement of what the Intervenor was asking for; and I don’t think there’s any issue there. IWASHITA:Okay, that’s fine. ALAMEDA:Okay. Mr. Darrow, do you need anything more for the record? DARROW:Just the last one if I could get that clarified? EXHIBIT B 27 GRAHAM:The gist was I think the Intervenor was saying that the original grading plan submitted was not current to what is planned. So since this Condition 4 speaks to earthwork and grading, I said that the currently planned grading program shall be given to the Planning Department to supersede any inaccurate plan previously given. DARROW:Thank you. ALAMEDA:And, you know, it triggered another thought, sorry. But you know that 45 feet that you mentioned, does that take care of the potential waiver that, for the shoreline or is that the waiver of the shoreline still a -? IWASHITA:I think the, well, the Director said the waiver is implied; and for the record, you need an expressed waiver signed. Are you suggesting we need to make that part of the -? ALAMEDA:No. TORIGOE:Yeah, well, we need to -. ALAMEDA:We should? Mr. Torigoe? TORIGOE:Yeah, I think for the record, we probably should have a Finding and Conclusion to the effect that there has been an implied waiver of the shoreline setback submission requirement of 9-11, I’m sorry, shoreline certification requirement in 9-11 by the acceptance of the application by the Department; and to the extent that that may not be so that the Director, on the record, will make an expressed waiver based upon the distance from the shoreline and the conditions on the ground. IWASHITA:That’s fine. ALAMEDA:Okay. Mr. Graham, okay, that’s good? GRAHAM:Yes. ALAMEDA:All right. Anybody else? Commissioners? All right, okay. Seeing no further discussion, staff? DARROW:Thank you, Mr. Chairman. Before we begin, I’m going to just make sure I have this motion correct. The motion is to approve the adopted, to adopt the Hearings Officer’s Findings of Fact, Conclusions of law, Decision and Order, along with the additional Findings of Fact stated by Corporation Counsel, correction by Planning Department. These would include Findings of Fact, within the Planning Department’s proposed Findings of Fact, 50 to 58, 60 to 66, 67 as amended, to reflect to add “the Applicant represented that,” 69 to 71.” I’m not sure if this also includes 75 to 81 and 83 to 90. Does that also include these? ALAMEDA:Maker of the motion? EXHIBIT B 28 IWASHITA:I’m sorry? DARROW:There were some possible added Findings of Fact, 75 to 81 and 83 to 90. IWASHITA:Yes. DARROW:Okay. So we’ll add all of these Findings of Fact. This motion will also -. IWASHITA:Mr. Chairman? ALAMEDA:Commissioner Iwashita. IWASHITA:Sorry. Just to clarify, 68 was also included? No? DARROW:No, 68 was not. IWASHITA:Was not? Okay. DARROW:Did you want to add that? IWASHITA:Well, my understanding was that it was included and then we changed 40 feet to 45 feet there. DARROW:Okay. ALAMEDA:Okay. All right. Continue, Mr. Darrow? DARROW:Thank you. Included in this motion is an added condition from, stated by a condition, by Commissioner Graham regarding the filling up of the cesspool and hooking up of the sewer system. Also are two added conditions stated by Corporation Counsel Ivan Torigoe regarding the stockpile and the accepting of the adopted Findings of Fact and rejecting all others. That’s just summarizing. And, lastly, a condition regarding the submittal of an updated grading plan. And then as far as the setback, 45, that’ll be not added as a condition, just as an added Findings of Fact, or we’re also adding a condition? IWASHITA:Yeah, it is a condition. DARROW:Okay. So we’re also adding a condition stating that the shoreline setback will be moved from 40 feet to 45 feet. Hopefully that covers -. ALAMEDA:Commissioner Graham? GRAHAM:One question for Mr. Torigoe. ALAMEDA:Sure. GRAHAM:I think State law says what this shoreline setbacks can be. Is it okay for us to move it to 45? EXHIBIT B 29 TORIGOE:Yes, I was thinking more, like we’d say something like, “For the purposes of this SMA application, the setback will be considered as 45 feet from where it was last,” what shall we say, “five feet further inland from where it was last certified,” something like that. IWASHITA:Well, the rule says that the minimum, there should be a minimum shoreline setback line of 40 feet. So, to me, that implies it can be a greater, something greater than 40. So this shoreline certification map certifies the actual shoreline and then the setback is supposed to be a minimum of 40 feet from that. So we’re saying that it’s going to be 45 feet, with the agreement of the Applicant, from the shoreline, certified shoreline map. TORIGOE:Okay. Yeah, so, basically for purposes of this use permit, it’ll be 45 feet from the last certified shoreline. Is that what it is? IWASHITA:Yeah. ALAMEDA:Okay. Jeff? DARROW:Thank you for your patience on that. Commissioner Iwashita? IWASHITA:Yes. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Galdones? GALDONES:Aye. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Rho? RHO:Aye. DARROW:And Mr. Chairman? ALAMEDA:Aye. DARROW:The motion passes six to zero. ALAMEDA:All right. Thank you. EXHIBIT B 30 The discussion ended at 2:36 p.m. Respectfully submitted, Sharon M. Nomura, Secretary EXHIBIT B 31