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HomeMy WebLinkAbout2005-09-30 TIBBETSON PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT SEPTEMBER 30, 2005 DANIEL IBBETSON (SPP 05-015) A regularly advertised hearing on the application of was called to order at 1:41 p.m. in the Hapuna Beach Prince Hotel, Hau/Lehua Room, 62-100 Kaunaoa Drive, Kohala Coast, Hawaii, with Vice-Chairperson Hannah Springer presiding. PRESENT:C. Kimo AlamedaABSENT & EXCUSED: Fred Galdones Hannah SpringerRene€ Siracusa Rodney H. WatanabeJeffrey McCall Allen SalaveaAndrew Iwashita WilliamR.Graham ChrisYuen,DeputyPlanningDirector Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Ivan Torigoe, Deputy Corporation Counsel And approximately 10 people from the public in attendance. APPLICANT: DANIEL IBBETSON (SPP 05-015) Application for a Special Permit to allow a 2-unit bed and breakfast establishment on 0.722 acre of land situated within the State Land Use Agricultural District. The property is located along the west (makai) side of Mamalahoa Highway (Highway 11), approximately 120 feet th south of the Kaohe Road-Mamalahoa Highway intersection, Kaohe 5 , South Kona, Hawaii, TMK: 8-7-9:14. SPRINGER:Commissioners we€re moving on to agenda item number 7. The applicant is Daniel Ibbetson, Special Permit 05-015. The application is for a special permit to allow a 2-unit bed and breakfast establishment on 0.722 acre of land situated within the State Land Use Agricultural District. The property is located along the west (makai) side of Mamalahoa Highway (Highway 11), approximately 120 feet south of the Kaohe Road- th Mamalahoa Highway intersection, Kaohe 5, South Kona, Hawaii, TMK: 8-7-9:14. Mr. Darrow? DARROW:ThankyouMadamChair.IfImaydirectyourattentiontothelocation map. The area of this application is within the South Kona District of Hawaii. Looking at the middleofthemapwehaveagainawhitelinetravellinginanorth-southdirectionwhichis identified as Mamalahoa Highway, Highway 11. This area here is known as the Kona ParadiseSubdivisioninSouthKona.JustsouthoftheKonaParadisesubdivisionisthe applicant€s parcel identified in blue. The applicant has submitted a plot plan identifying the EXHIBIT E 1 layout of the property as well as a floor plan of the B & B. The highway is actually above, a little further up and there€s an easement to the property from the highway. The applicant in this case Daniel Ibbetson is requesting a special permit to allow a 2-unit bed and breakfast operation on 0.722 acres of land. The 2 bedrooms are identified in this location. The owner€s bedroom is identified here. This would be towards the ocean, makai. The Planning Department has recently received a letter from Barbara Hanson and this was a letter that basically stated that she€s not contesting the application. We also have received a petition for standing in a contested case from Dean W. Kaiawe and this was submitted on September 22, 2005. Mr. Kaiawe does not reside within the 500 feet from the proposed request but states that his interest in this matter is clearly distinguishable from that of the general public. After the application was finalized we were made aware that this parcel, this piece of property is also used as a cemetery. There are 2 gravesites. The information as far as where they€re located was submitted to the Planning Commission. We also were given a copy of the deed to the property in which they talk about a perpetual access easement to relatives and people visitingthegravesites.We€veaddedconditionnumber7,whichhasbeenhandedouttothe Planning Commission members. It states the applicant shall maintain the perpetual non- exclusive easement and right of entry over and for the visitation, maintenance and care of the existing gravesites located within gravesite A and gravesite B identified as easement 1 within the applicant€s deed to the property. The Planning Director is recommending approval of the requests with the conditions and the added condition. Are there any questions? SPRINGER:Jeff just before I query my fellow commissioners. Looking at the photographs that are being circulated are those grave headstones that we can see in photo number 4? DARROW:If that€s correct there€s the access easement travelling mauka on your left side and then you€ll-, yes, I believe those are I mean I-. Those could be verified by either Mr. Kaiawe or Mr. Ibbetson, but it appears to be. SPRINGER:Thank you. Commissioners? Commissioner Watanabe? WATANABE:I had one question. Cause I guess we got this material I mean the limited warranty deed just this morning. And in reviewing that the latest warranty deed where the last transfer occurred it seems on page 2 that there are provisions also for additional burials for, under A-1, Louisa? I don€t want to murder the name. And cremated remains also of someone else. It€s about midway of page 2 of the limited warranty deed. So, my only question is assuming we€re going ahead with this we might want to recognize that in the new condition? SPRINGER:Thank you Commissioner Watanabe. Jeff do you have any response to Commissioner Watanabe€s question or comment at this time or shall we take it up a little later in the meeting? DARROW:This would be on page 2 identified as subsection A and subsection 1, is that correct? EXHIBIT E 2 WATANABE:That is correct. DARROW:Yeah. This is part of the deed as well. We can also add in there that they comply with the requirements of the deed or maybe we can make it more specific. SPRINGER:Thank you both. Other Commissioners any questions or comments? Seeing none at this time I€d like to invite the applicant and/or their representative to come forward at this time. At this time I€d like to ask the applicant and any others wishing to testify on this matter to be sworn in at this time on the sign in sheet we have Michael Matsukawa and Dean Kaiawe? At this time could you all raise your right hands and do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? IBBETSON/ MATSUKAWA/ KAIAWE:Ido. SPRINGER:Thankyou.Beginningwithyousircouldyoupleasegiveusyour name and your address for the record? IBBETSON:Yes my name is Daniel P. Ibbetson. My address is P.O. Box 842, Honaunau, 96726. SPRINGER:Thank you sir. You€ve, have you received a copy of the Background Report and Recommendation? IBBETSON:Yes I have. SPRINGER:Do you have any comments to share with us at this time? IBBETSON:None whatsoever. SPRINGER:Thank you. Commissioners do you have any questions of the applicant? Commissioner Graham? GRAHAM:I€m just wondering about the 2 gravesites. IBBETSON:Sure. GRAHAM:Do we know where they are on the parcel? IBBETSON:I can actually mark them for you if you€d like. GRAHAM:Thank you. DARROW:There€s also been some information that€s been passed out that identifies the location. EXHIBIT E 3 IBBETSON:The initial gravesite is 40 feet by 90 feet and it comes to about, I€m going to be approximate here but this is probably pretty accurate. It comes down like so and then, well actually we€ll make it like so. This is heavily planted here and of course this is all landscaped and heavily planted up here providing a substantial amount of privacy for the descendants if they come, care to come down and visit the graves. Now the other gravesite is down here and this was one that for the longest time we didn€t know who was buried there. I spoke with the pastor of the church she didn€t know. No one seemed to know. So we simply left it open. And when Mary Ann came down to look at things she went ahead and classified it as a non-historical site, which I suspect was a mistake on her part. This site is clearly more than 50 years old. And this site, these start from 1915. Again now I don€t know it€s not my place to get into that but again she went ahead, she passed it. And, the descendants are all, if you€ve read my deed, are all allowed to come and see at any one time I have a very good relationship with them. And, there have been some additional problems on their end with the church and this is again a civil matter between-, the church is who I bought the property from. And again this would be a civil matter between themselves and the church. That€s-. SPRINGER:Thank you Mr. Ibbetson. And the record should reflect that Mr. Ibbetson using red marking pen has demarked the burial areas as A and B on the sketch map of the site that we€re using as a reference. Commissioner Graham? GRAHAM:Mr. Ibbetson? IBBETSON:Yes. GRAHAM:Just to better understand the terminology from someone who€s not familiar with this at all. When it says gravesite and then you draw that boundary is it like that whole area 40 by 90 is an area that? IBBETSON:It has a wall. The upper section of gravesite A has an actual wall. The individual graves- oh I€m sorry, the individual graves most of them, well they€re all quite distinct for the most part. There is the furthest grave to the south, excuse me, has a very I€d say a 3-foot high wall that runs around it, it€s quite distinctive. The only graves really of any, I don€t know how to explain this, we didn€t even know they were there, let€s put it that way. That was gravesite B. We just didn€t know they were there until I got in there and started cutting away and exposed them. And there€s a wall that runs, a very distinct wall that€s about 2 to 3 feet high that runs all the way around the-, and there are 4 graves that runs around them. And they sit well below the house. It€s a rather unused piece of property so to speak. It€s not even visible from the house unless you walk out to the edge of the lanai and look down. But they do have access. SPRINGER:Mr. Ibbetson in your testimony you mentioned someone named Mary Ann? Is that somebody with the church or the-? Could you identify her please? IBBETSON:Yes. Mary Ann is with the DLNR. EXHIBIT E 4 SPRINGER:Is that Mary Ann Maigret? IBBETSON:I€m not sure- it is okay. SPRINGER:Mr. Yuen? YUEN:Maigret I believe? IBBETSON:Maigret? Okay. SPRINGER:Thank you. Commissioners do you have any further questions for the applicant? Commissioner Yuen I mean Director Yuen? YUEN:I€m concerned about your non-disclosure of the gravesites in your application. IBBETSON:Ididn€tseeanyreason.Ididn€tknowtheywereevenrelevant. YUEN:Wellyourapplicationformhasasection,archaeologicalresources. IBBETSON:Right. YUEN:But does it say anything? IBBETSON:Well the fact that she considered them non-historical you know, they were not archaeological. YUEN:And then it has a section that says valued cultural resources and you say no cultural resources exist? IBBETSON:Not that I€m aware of. YUEN:You didn€t consider the burial sites to be a cultural resource. IBBETSON:Well if-, I€m sorry, I don€t quite understand. YUEN:Well, the existence of the cemetery on the site should have been disclosed on the application. IBBETSON:All right I understand that. YUEN:And I€m also puzzled by your statement that you didn€t know that burial site B existed until you went and cleared some of your property. IBBETSON:That€s correct it was completely grown over, trees and so forth. I went in and cut the trees back myself. It was completely-, you wouldn€t have known it was there. EXHIBIT E 5 YUEN:But your deed has a map that shows burial site B. IBBETSON:Correct and I looked-, and on the map onthe original map it was not shown where they are showing it now. It was shown down at the bottom of theproperty, which is where I hunted and hunted and hunted and I couldn€t find it. YUEN:So you€re saying the actual location of burial site B is not where it€s shown on the-. IBBETSON:On the original map. YUEN:No, I€m sorry the Murray 2003 survey map that€s attached to your deed? IBBETSON:I€m going to have to say yes at the moment. I€m not sure. But the map I had, which was done by John Weeks, Sr. showed that the graves were at the bottom of the property. SPRINGER:Mr. Ibbetson do you have a copy of the document that the Director is referring to or can we offer a copy to you so that you€re looking at the same-? IBBETSON:ThatIwouldappreciate. SPRINGER:Okay.Mr.Darrowcanyouhelpusouthere? YUEN:Thisisa-,I€mtalkingabouttheBlaineItosurveymapthatisinour records dated January 21, 2003. And it does show site B at the bottom of the property. IBBETSON:Right. YUEN:That is your deed. IBBETSON:Can I look at what you€re looking t? YUEN:Yes. IBBETSON:I don€t have what you€re-. The deed I- let me show you something this is kind of interesting. SPRINGER:Mr. Director as you folks exchange information can you please state for the record what you€re looking at. IBBETSON:(not speaking into mike) The map I have was given is shown these, none of this was shown. This was shown with 2 simply 2 little (inaudible) down here. And that€s all that was. EXHIBIT E 6 YUEN:You need to- (pointing to mike). IBBETSON:Oh I€m sorry. There were only two little graves down here and that€s all that was available to me. This I saw none of this. And until Dean-. TORIGOE:Let€s clarify that on the record what he€s pointing out please. YUEN:And you€re referring to site B? IBBETSON:Site B correct. YUEN:To show us where the stone wall around it. IBBETSON:That€s correct. YUEN:You€re saying that-. IBBETSON:All that were shown were two small little gravesites at the very center ofthebottomoftheproperty,notwhereBisnow.And,I€msure,Ihatetodothisbutthe original paperwork from John Weeks Sr. will show that. SPRINGER:And the map that you€re referring to is the map that we have in our files. YUEN:And you€re saying this other map that you saw was part of your deed? IBBETSON:That€s correct. YUEN:But you don€t, and you don€t have it here. IBBETSON:I€m sorry. I can€t, I don€t have my entire deed here is what it is. YUEN:And-. IBBETSON:I wasn€t prepared for this to be honest with you. YUEN:And that the deed that-. And we got a copy of this deed of this map from Mr. Matsukawa€s submission on behalf of the person applying for-. IBBETSON:That€s fine. YUEN:Applying for intervention. And just to make it absolutely clear you€re saying that, that this map that Mr. Matsukawa supplied to you was not part of your deed? IBBETSON:Nope that€s correct. EXHIBIT E 7 YUEN:All right. That€s about as far as I think we can take this right now. IBBETSON:Okay. YUEN:Thank you. SPRINGER:Commissioner Salavea? SALAVEA:Thank you Madam Chair. Mr. Ibbetson can you tell us, giveus some background as to how you had discovered burial site B in-? What were the circumstances and what the activity? IBBETSON:I was clearing the property. And I had my chainsaw out andIwas cutting theChristmas berrydown and that€s when I discovered the wall. And I was you know,surprise,surprise,Ifoundit.WhereIdidnotexpectittobe. SALAVEA:Allright.Wasthereanygradingor-? IBBETSON:No.I€msorrygoahead. SALAVEA:Thattypeofactivitygoingoninthatarea? IBBETSON:No. Not at that time. SALAVEA:As I see it on the map and as you referenced it for us I see it€s near to the pool deck. In the construction of the pool was there any grading done in that area? For the pool? IBBETSON:Actually, not grading but what we built the pool above ground and then we pushed some soil in the back up against the back of the pool. SALAVEA:Okay, all right, thank you. IBBETSON:Okay. SPRINGER:Other Commissioners questions for the applicant? Commissioner Graham? GRAHAM:This may be an inappropriate kind of question but just I€m wanting to ask you how long you€ve been in Hawaii just as a background feeling for how sensitive you might be to issues like graves here. IBBETSON:23 years and I€m very sensitive to the issues. Like I say when Mary Ann came out and said oh no these are not historical sites and I have the paperwork to support that if you€d like to see it. EXHIBIT E 8 GRAHAM:Thank you. IBBETSON:All right. SPRINGER:Other Commissioners questions for the applicant? At this time I€d like to ask Misters Matsukawa and Kaiawe to come forward please. Commissioners, Mr. Kaiawe is the petitioner for standing in this contested case hearing and Mr. Matsukawa is his representative. You€ve both been sworn in. Could you please give us your names and addresses and then whomever is going to speak first please do so. MATSUKAWA:Okay. My name is Mike Matsukawa. My address is 75-5751 Kuakini Highway, Kailua-Kona. SPRINGER:Thank you. KAIAWE:My nameisDean Kaiawe. My address is P.O. Box 762, Captain Cook, Hawaii.MyphysicalisinKaoheIII;there€sakuleanawithintheahupuaa. SPRINGER:Thankyouboth.RightnowweneedtoaddressthePetitionfor Standing which is before us from Mr. Kaiawe. Commissioners you€ve had a chance to review that application do you have any questions for Mr. Kaiawe? Commissioner Watanabe? WATANABE:I guess my main question for standing would be, how are you related? KAIAWE:Okay. The grantor of this parcel, the cemetery parcel was my great grandmother. Okay in 1915 she had deeded this parcel, which I have a copy of the deed to the Hawaiian Evangelical Association, which today€s known as the Hawaii Conference Foundation. Prior to this, this whole ahupuaa and this kuleana€s bill was in the family from Kamehameha IV and I have documents that trace back from Kamehameha the IV all the way to my grandfather. What happened was in 1915, I would think before that. There was actually, within this ahupuaa on the point of this ahupuaa was the original church and school site down at the beach. According to my grandmother when the village people moved up to the roadway the school had moved, which is not Alae School and the church had moved to relocate because everybody had moved up. At that time the church had asked my great grandmother for a piece of her property to be used as a church to relocate the church. And that€s when we found out these deeds. This is for the cemetery. The church is mauka side of the road and there was about 3 separate deeds that she had given to the Hawaiian Evangelical Association between the years 1905 to 1915. However now this particular parcel is a cemetery where Mikala my great grandmother, her husband and her children are buried, which is located in site B. I was told by my grandma and where this site was located because yeah it was overgrown at one time; there was Christmas berry trees. And when I found out about it my grandma gave me directions to the place and exactly to the foot is where I found it. And so I went down to clear it up to put flowers. And I had written letters to the Hawaii Conference Foundation that because it was neglected, that the family was interested in the Foundation to survey the place so we know what the boundaries are so we could go down and start cleaning it. But nobody responded and at that time, I believe it was in 1990 and it was EXHIBIT E 9 Mr. James Richards I believe was the Executive secretary for the conference. What I found out about the sale of this property and I went down to visit the house was already built. And I found out from a family member whose ancestors are buried in site A. So I went straight down and, to see what was going on and Daniel Ibbetson came out, I told him who I was and my first concern was the site of B, which is where my family is buried. So his house actually is right located between both site A and site B. Okay so I couldn€t see the grave so I mentioned to him that do you know that there€s gravesites in front of your house? And so he invited me in, we went through his house on the swimming pool where you would look down cause he had back filled where the pool is I would say about 5 to 6 feet. So now you€re actually looking down into site B. Okay at that time I also noticed that because of the fill material that he had brought in or whether he had excavated to level the lot he had used these walls as his retaining wall. At that point I did not say anything because I had no idea what was going on. All I know was there was this house now and this cemetery. So Mr. Ibbetson then mentioned to me that it was our responsibility to maintain the graves and which he pointedtositeA.AndIsaidwellmyfamily€sinsiteBandatthattimehetoldmeno, nobody comes to site B, he€s going to maintain that. And again I did not argue because I did not know what was going on. But in me, to me that wasn€t right. You know that, where my ancestors are buried the families, the descendants would always have the right to go. But I didn€t say anything and I told him that you know that€s where my family is buried and he insisted that no that he€s going to take care, maintain the grave. And I could understand why, it€s because this site is in front of his house where his entertainment area is. Okay so what I did after that was try to get information. I called family members and nobody knew what had happened. I called the burial counsel and was told that he did call or he went in and he was told that he needed to contact the descendents of those buried there and to hold a meeting as to what his plans are and an agreement had to be made before anything can be done. Okay none of our family was notified. Okay, I started calling members in site A cause I know who those families are too. I spoke with Nancy Eta Haalilio who Mr. Ibbetson mentioned was the Kahu of the church. However she is not the Kahu of this church, she€s a Kahu of Pukaana. I called Nancy Eta and I told Nancy Eta that, do you know that cemetery down Kaohe, Hou Ikeana? And she said yes. So I said, do you know there€s a house there? And she said yes Mr. Dan Ibbetson. So I said, so you knew about this. And she said yeah. So I said well how come nobody notified our family who are the graves makai. She said they knew there were graves but they didn€t who it belonged to. Okay so I started doing more search. I did not have the surveyor€s map by John Weeks or the deed. What had happened was I€m a member of Central Kona Union Church, which is under the Hawaii Conference. And there was a special meeting held at another sister church Lanakila. And I was invited by my dad to come and listen in and what it was, was a associate pastor from the Hawaii Conference had come over. There were some problems at the church so I went to listen and during this meeting he mentioned church lands and old sites. So which got my attention. So after the meeting I approached him. I introduced myself. And I told him that there was this cemetery down south that was sold by the conference. He said no that couldn€t be true. I said it did I talked to the owner now. He still insisted that no that couldn€t have happened. However he said he€ll be back in 2 weeks. He€ll go back to the conference, do some research and he€ll answer me in 2 weeks. Well he came back in 2 weeks with the deed from the conference and the surveyor€s map. So after looking through the deed and the sites I thought it€d be, it was really a legal matter for-. In my opinion the cemetery shouldn€t have been sold in the first place. EXHIBIT E 10 According to what I read in the deed, when my great grandmother deeded it the bottompart she says for cemetery use. And why I believe it shouldn€t have is back in 1915 when the Hawaiians used to talk to each other. And they would say I€ll give you from this property, from this tree to that rock. To them that was the law. You know it was pa€a. And everybody in that area, the community knew that when somebody spoke of something that was the law. Whether you know that would stand up in court I believe it€s for the courts to decide okay. In the meantime I found out Mr. Ibbetson had applied for a Special Use Permit to operate a bed and breakfast. So I called the County Planning Department. I talked to Sharon and asked her that I understand this applicant had applied and if that was a public record and if I could pick up a copy, which I did. After reviewing it there are several things that I noticed that I wasn€t satisfied with and one was the DLNR€s report that there were no historic sites. And it was signed by Mary Ann Maigret who signed it as Assistant Archaeologist and to me was an archaeologist is a person that goes out to look for bones, for burials, historic property. So this kind of confused me. I tried to call her office. I left several messages, which she did not return.InthemeantimetherewastimelimitwhenthishearingwascomingupandI understood that for met to contest this case I had a deadline, I had to file. So time was for me was very crucial. I then called DLNR Kapolei€s office in Honolulu to-. And all I called was to clear up some questions that I had regarding this review. And so I spoke with this lady I don€t have her name here but I have it written down. And she€s an archaeologist that does work over on Maui but she was in Oahu. And I asked her first of all, how do you folks, how does the DLNR Division, Historic Preservation Division know when they was supposed to go out to check a property for Historic sites. She then explained that the applicant must have applied for a rezoning or special use. And I said, a special use. She said okay, when that happens all these agencies are notified including the DLNR. So I said okay now you folks are notified when you go out to this property what do you folks look for? Are graves something you look for? She said oh yeah definitely. So I said so why is this report signed that there is no historic properties affected? Her answer was I could tell you that she didn€t go out. Because if you€re saying there€s graves. I said this is actually a cemetery, there€s a lot of graves on here. Whether she did or not and that€s why I wanted to talk to Mary Ann directly, to find out if she did and if she did I€m sure she could explain why she had signed this. That there was nothing, no historic properties affected. So, this kind of concerned me and made me look into it more. Okay the other thing that concerned me was the last page of the applicant€s permit which shows his plot plan where he does not even show any grave or grave sites on here but shows mango and guava and landscape. And, so then I talked to Darrow cause I had some questions as to whether he applied for a building permit, whether prehistoric review would be required he said no. But if the property was graded and grubbed then a permit would have been required and at that time the DLNR would have gone out. Well when I spoke with Mr. Ibbetson and I went down actually like about 2 weeks ago was to see if we could work out something. And the problem actually started with the easement the 10- foot wide easement that the Conference had reserved in favor of the descendants. Mr. Ibbetson denies that there was an easement. And so I went down and with the surveyor€s map and I asked him which was his boundary to the north on the Kohala side and he had a string pull at that time. So I took a tape measure and he held it on the line and we put out 10 feet cause the easement is 10 feet wide, 200 feet long. Well, I told him this is where the 10 feet comes and in the middle is his Palm trees, Arica Palms. And I said well that is in the easement and that would have to be removed and he said no way. And I said it€s in the EXHIBIT E 11 easement and he claims that he didn€t get this surveyor€s map and he showed me what hehad. And what he had was actually one old Tax Map Key that showed the whole ahupuaa but not the specific site itself. So I showed him what I had, he denies that the Conference gave it to him. So I turned the deed from the Hawaiian Conference to Mr. Ibbetson and I said is this your signature. He said yes. I said well you signed this deed and attached to this deed was this map you know. So I said you can€t say you didn€t get it. The problem I guess is prior actually it goes back to me to the sale of this property and whether that sale was legal since it was restricted in my great grandmother€s deed to be used as a cemetery. SPRINGER:Mr. Kaiawe I€m going to interrupt your testimony at this. KAIAWE:Sure. SPRINGER:Right now we€re focusing on the matter of your request for standing in thiscaseanddoyouhaveanythingmoretosaywithregardtohowyouaredistinctfromthe general public. Because one of our criteria to determine standing is if you have an interest that is clearly distinguishable from that of the general public. I believe that you€ve done so through your discussion of your ancestors having been the landowners and then that provision that was made with the church. Do you have anything more to say in that regard? KAIAWE:I would ask the Commission at this time to postpone any decision made on this bed and breakfast permit until this issue at least resolved further. I mean there was a time limit that he applied until I found out about it. And I think by granting him the permit if I pursue it on a civil matter its just going to make things worse. SPRINGER:Mr. Kaiawe do you stand by your application for standing in this contested case? KAIAWE:Yes. SPRINGER:You do. Commissioners do you have any questions of Mr. Kaiawe in that regard? Commissioner Salavea? SALAVEA:Thank you Madam Chair. Mr. Kaiawe do you have, is there to your knowledge any written record as to who is buried in gravesite B. KAIAWE:I€m not sure if any of the family-, I don€t have-, all I know was I was told by my grandma who was buried there and she gave me the description from site A how to get to site B. SALAVEA:So is there record of your grandma being-, is it your grandma being? KAIAWE:I€m not sure-, my great-grandma. SALAVEA:Your great grandma being-? EXHIBIT E 12 KAIAWE:I€m not sure if the Hawaiian Evangelical Association Church would have records or the Hawaii Conference. I€m not sure if it€s required by the church to be surveyed who and who is buried in the cemetery, I€m not sure. SALAVEA:And the reason I ask is just to clarify and ascertain whether or not your link to the land and I-, there are other ways that through the documents that you provided that I€m trying to establish that. And that€s in direct, or directly related to trying to define whether or not you do have a clear standing more than just someone from the general public so. I€m just trying to see if there are any either its written record or maybe there€s a oral record and I know you just said that you were told by your great grandma that your family was buried there but what type of record is there to show that relationship. Thank you. KAIAWE:Thank you. SPRINGER:CommissionerWatanabethenAlameda. WATANABE:JustacommentandmaybeaquestionforCounsel.Inthepastwhen we€re looking at granting standing to (inaudible) we€ve tended to error if anything on the lenient side. And my question for Counsel would be you know since the time of these transactions was so far back it€s not reasonable to assume that everything was in writing and recorded etc. Would it be appropriate to grant standing and request that discovery be handled there? Providing you know this claimant more time to establish the lineage. SPRINGER:Mr. Torigoe? TORIGOE:Thank you Madam Chairman. You know I€d like to hear the positions of Mr. Ibbetson and the Planning Director also but if you find that there€s enough of what you consider to be credible kamaaina testimony. You know that it seems like this is a credible claim to lineage then I wouldn€t have a problem you know with your going on that and also pursuing the matter further during the hearing. SPRINGER:Follow up Commissioner Watanabe? WATANABE:Well, I guess we€ll just wait for the comments from the others. SPRINGER:Okay. Commissioner Alameda? ALAMEDA:I just wanted to check with Mr. Kaiawe if he was aware of what happens in a contested case situation and kind of like the next steps if we were to grant that. Would you like us to share with you the protocol? How that works? KAIAWE:Sure. ALAMEDA:Chair? SPRINGER:Thank you. Mr. Torigoe? EXHIBIT E 13 TORIGOE:Thank you Madam Chairman. I assume though Mr. Kaiawe thatyou have Mr. Matsukawa assisting you with this case? KAIAWE:Yes. TORIGOE:Has he talked to you about what it means to have a contested case? KAIAWE:Uh, we kind of talked about it a little. TORIGOE:Okay, so basically he€s informed you that this will involve a formal or semi-formal trial like proceeding where if the Commission finds that you have standing as an intervenor as a party in a contested case then the Commission will hold a trial-like Contested Case proceeding either as the Commission doing it or hiring a Hearings Officer to do that. During which time you and Mr. Ibbetson and the Planning Director will all be parties. You will have the opportunity to present documentary evidence and testimonial evidence and to cross-examine each other€s witnesses and ultimately to argue your position. And if this is given to a contested case hearing officer then the officer will provide a report back to the CommissionalongwithsomerecommendationsandthentheCommissionwillhavetomake a final decision. And that final decision ultimately can be appealed through the Court system. So it does require a certain commitment on your part as a party to follow through with this and this semi-formal proceeding here. I guess Commissioner Alameda just wanted to make sure that you€re aware of that. KAIAWE:Yes I understand. SPRINGER:Thank you Mr. Torigoe. Commissioners do you have any questions of the applicant for intervention? Seeing none we ask Mr. Ibbetson do you have any comments to make at this time? IBBETSON:Yes I do. SPRINGER:Regarding standing? IBBETSON:Regarding standing. Well I€d like to make a few comments quickly before I-, this has to do with standing let€s just move along. I€m sorry but as far as my-, Mr. Graham wondered how long I€ve lived here and whether or not I was sensitive to the grave issue. I€m very sensitive to the grave issue and I took offense at that. I not only cleaned out gravesite B but I have been maintaining it on a regular basis. As far as gravesite A is concerned I go in on a regular basis and spray the weeds and I€m the one who keeps it up. I also was the individual who specifically requested that this be placed in perpetuity so that their ancestors would always have access, the church did not. All right, as far as the first time Dean visited the house was in stuck form it was not completed. The walls he mentioned that were, in gravesite B were used as retaining walls that is absolutely not true. There are, the wall hits like so you come back approximately 18 inches and then the hillside goes up. It has nothing to do and absolutely no, nothing to do with the hillside. EXHIBIT E 14 SPRINGER:Mr. Ibbetson can we return to the topic of the standing? IBBETSON:All right. As far as his standing is concerned. First of all I would like to see evidence that his relatives are buried there, number one. If this is-, and not only that I do feel that the church-. The other thing I€d like to see is whether or not the paperwork that he has and the document he is presently holding are genuine documents, I€m going to have to go through that. And then as far as anything more it just seems to me that this is an issue between the individuals Dean and the church. And what the church did may very well have been wrong God knows but I had nothing to do with it. And whether I operate a small 2- bedroom B & B or not seems to be of little consequence. I don€t see how that€s going to have any impact upon his present situation and his dealings with the church. I just don€t. SPRINGER:So sir with regard to Mr. Kaiawe€s Petition for Standing you would, your comment would be for denial? IBBETSON:Oh absolutely. SPRINGER:Thank you. Mr. Matsukawa? MATSUKAWA:I had some comments but they go to the merits and not to standing so I€ll stay silent. SPRINGER:Thank you Mr. Matsukawa. Mr. Yuen? YUEN:My recommendation would be that the Commission grant standing. Thattheintervenorhasshownthatheis,hasaninterestinthispropertydifferentthanthatof the general public in that the property was originally granted by his family member for the purpose of a cemetery and that he has family members buried on the site. SPRINGER:Thank you Mr. Yuen. Commissioners do you have any questions at this time? We€re on the matter of whether or not to grant standing to the Petitioner Dean Kaiawe. ALAMEDA:Madam Chair? SPRINGER:Commissioner Alameda? ALAMEDA:Excuse me I just wanted to know if, will the question of outsourcing become an issue or is that already an assumption? SPRINGER:That€s the next question. But the first question is whether or not to grant standing. ALAMEDA:Okay. EXHIBIT E 15 SPRINGER:On the matter of granting standing to Dean W. Kaiawe. We€ve been discussing his petition for standing in this contested case hearing is there any further discussion on the matter of standing? SALAVEA:If I may Madam Chair? SPRINGER:Commissioner Salavea? SALAVEA:In the matter of Daniel Ibbetson Special Permit Application number 05- 01. I move that we grant standing to Mr. Dean W. Kaiawe in regards to establishing his petition. WATANABE:I second. SPRINGER:ThankyouCommissionerWatanabe. WATANABE:Butjustforclarification.Hedidsay05-015right?Isthatright? SALAVEA:05-015. WATANABE:Oh,okay,okaythankyou. SALAVEA:Thank you. SPRINGER:We have a motion from Commissioner Salavea and a second from Commissioner Watanabe to approve of the Petition for Standing by Dean W. Kaiawe. Is there any further discussion? SALAVEA:Well I-? SPRINGER:Commissioner Salavea? SALAVEA:I€d just like to reiterate Director Yuen€s sentiments that I think the evidence presented is sufficient with the, his ancestors deeding the land over to the Conference. And in my eyes I see that as establishing lineage to this particular parcel of land. SPRINGER:Thank you Commissioner. Commissioner Graham? GRAHAM:Just wanted to check with Corporation Counsel that the timeliness is okay on this application? TORIGOE:I understand staff that this was submitted in a timely fashion within 7 days? DARROW:(nods) EXHIBIT E 16 TORIGOE:Yes. SPRINGER:Is there any further discussion? Seeing none, Mr. Darrow? DARROW:Thank you Madam Chair. Commissioner Salavea? SALAVEA:Aye. DARROW:Commissioner Watanabe? WATANABE:Aye. DARROW:Commissioner Alameda? ALAMEDA:Aye. DARROW:CommissionerGraham? GRAHAM:Aye. DARROW:AndMadamChair? SPRINGER:Yes. DARROW:The motion passes 5 to 0. SPRINGER:Thank you Mr. Kaiawe your Petition for Standing has been accepted by the Planning Commission. We now go into deliberation on whether to outsource this matter or to take it up for ourselves. Thank you gentlemen while we continue this discussion. KAIAWE:Thank you. SPRINGER:Mr. Ibbetson? IBBETSON:Yes, I have one question. So at this point am I in a position to go ahead and extend? I€ll need legal counsel there€s no question there. And, so we can ahead. I can assume that this will moved onto the next meeting is that correct? SPRINGER:That€s correct we€re going to be in discussion now as to whether or not it will be taken up, the matter will be taken up by the Planning Commission or whether we€ll outsource it. So please stay at the table and this discussion will continue. IBBETSON:Okay. All right thank you. SPRINGER:You€re welcome. Commissioners the matter now before us is how this contested case will be handled. Commissioner Watanabe? EXHIBIT E 17 WATANABE:Based on the complexity of establishing lineage etc.Iwould recommend that we outsource this. SPRINGER:Thank you Commissioner Watanabe. Is there any other discussion? Commissioner Salavea? SALAVEA:And, I€d like to add I agree with Commissioner Watanabe. I€d also like to-, I€m not sure if this is possible but I€d like to make sure that there€s sufficient time between the- between now and the time the hearing is held so that complete records or as best, complete records aregathered up because I have, I do have some personal experience doing this type of work and it€s really, it€s time consuming to go and dig up the records from the Department of Health. So I€d just like to make sure that enough time is given to produce a clear record of whatwasdone in the past. SPRINGER:Thank you Commissioner Salavea. Commissioner Graham? GRAHAM:I just wanted to put out. I€m looking at it in a more limited way and maybe the Planning Director could respond to what I€m saying. It seems to me that tracing lineage and all the connections that Mr. Kaiawe might have and the history and all is not really at the heart of what we are here to decide. We do know that there are graves in these locations on this property and it seems that what we€re here to decide is given that we know that is it appropriate to allow a bed and breakfast operation. So I hate to think of everybody spending a lot of time and money and effort on something that€s really not central to what this permit is about. SPRINGER:Mr. Yuen do you care to respond? It seems as though by having accepted Mr. Kaiawe as, accepting his petition for intervention that further research into lineal descent is of less importance than the merits of the application as Mr. Graham is describing. YUEN:I also don€t look at the genealogical information as being crucial at this point given that we have accepted the petition for standing. And that in the end the question, there will be a legal question that is really not before us the propriety of the transfer of the property, I believe that would have to be taken up in the courts another forum. The issues that we would like to see at the, that the application dealt with would be those of the impacts of the bed and breakfast on the grave area. SPRINGER:Thank you Mr. Yuen. Commissioners? Commissioner Graham? GRAHAM:Yeah with that in mind it seems like if we€re trying to decide whether to outsource or not and Commissioner Watanabe felt that it could be complicated issues involved and all. If in fact as you and I and perhaps Director Yuen feel it€s not that complicated maybe we could ask Mr. Matsukawa and Mr. Kaiawe if they foresee a brief presentation and a relatively brief hearing whether we could do it on one of our agendized days. Or whether they foresee it a more lengthy to where it might be better for us to have someone else conduct the hearing. EXHIBIT E 18 SPRINGER:Mr. Matsukawa have you heard Commissioner Graham€s comment and question and can you respond to it? MATSUKAWA:Yes I tend to agree with Mr. Graham. I think the issues are very discreet. One would be law questions that may or may not fall within your jurisdiction to answer but nevertheless needs to be addressed. And the second would be the factual questions that assuming certain things were true and valid etc. what impacts within the definition of rule 6 does this particular application present? And that could be presented quite I think in a compact format. SPRINGER:Thank you Mr. Matsukawa. Mr. Ibbetson do you have any comments at this time? IBBETSON:No I don€t think so, not at this point. SPRINGER:Thank you Mr. Ibbetson. Commissioners you€ve heard the discussion from the Director and our colleague Mr. Graham, other feelings on this matter of whether or not to outsource. ALAMEDA:Madam Chair? SPRINGER:CommissionerAlameda? ALAMEDA:ItendtoagreewithCommissionerGrahamonthisone.Ithinkthisis something that we could be able to address here at, within our own meetings via an agenda item. SPRINGER:Commissioners? Commissioner Salavea? SALAVEA:After clarification and thank you Commissioner Graham for bringing that up. Yeah, I also agree and we think that we can handle this. SPRINGER:Okay. Commissioner Watanabe do you concur? WATANABE:It€s fine with me. SPRINGER:Thank you Commissioners. In this event then can we look at our calendar and see what sort of time frame we€re looking at? For this to be taken up at a Kona st meeting. If the agenda€s are full. If we would be able to take it up on I believe October 21 is ournextmeetingorifweshouldmoveitforwardtoNovember? st HAYASHI:Yeah,Idon€tthinkthatwouldbepracticaltohaveitonthe21.The reason why I state that is that what we need to dois notify the parties that they need to submit exhibitsandtheirwitnesslist.Sopreferablywewouldliketohavethatmovedbackalittle bit to the November meeting if that€s okay with the Commission. EXHIBIT E 19 SPRINGER:And with regard to the Commission€s November schedule has one of our meetings in that month been cancelled? HAYASHI:Yes that wasthe Hilo meeting that was cancelled. So we still have the West Hawaii meeting. SPRINGER:Okay and what is the date of the next West Hawaii Meeting? th HAYASHI:That would be I believe was November 18. th SPRINGER:November 18. So, with Mr. Hayashi€s good guidance there we wouldn€t be looking forward to hearing this is October rather in November. Do the parties at the table Mr. Matsukawa and Mr. Ibbetson feel that this provides you with sufficient time to prepare? MATSUKAWA:That€s fine. SPRINGER:Thank you Mr. Matsukawa. Mr. Ibbetson? IBBETSON:That€s ample time. Thank you. SPRINGER:Thank you sir. Mr. Yuen? YUEN: (nods) SPRINGER:And Mr. Yuen concurs as well. So, should we have a motion on this to continue it to the November meeting Mr. Torigoe? TORIGOE:Yeah. Actually if it€s a contested case matter I think you can do that as the presiding officer. Also if the Commission is going to hear the Contested Case Hearing then unless the Commission appoints someone else then the Chairperson would be the presidingofficer.AndsoIdon€tknowifthat€sgoingtobeyouorifthat€sgoingtobeMr. Galdones but I think Staff needs to confer with the leadership and determine who that€s going tobeandyouprobablyneed,whoever€sgoingtodoitwillprobablyneedtocontactthe parties to have some discussion about setting pre-hearing deadlines and the like. SPRINGER:Thank you Mr. Torigoe. The November date again is? November th 18? DARROW:Correct. SPRINGER:TheninmycapacityastheChairoftheHawaiiCountyPlanning Commission I schedule this matter of the application by Mr. Ibbetson, Daniel Ibbetsonon this th SpecialPermit05-015fortheNovember18meetingoftheHawaiiCountyPlanning Commission and I will confer with staff to establish who specifically the Hearing Officer will EXHIBIT E 20 be and to establish the calendar for all pre-hearing meetings and deadlines. Thank you all Mr. Ibbetson, Mr. Matsukawa and Mr. Kaiawe. Thank you. This discussion ended at 2:41 p.m. Respectfully submitted, Lynette Marushige, West HawaiiSecretary EXHIBIT E 21