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HomeMy WebLinkAbout2003-10-17 TContinental PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT OCTOBER 17, 2003 A regularly advertised hearing on the application of CONTINENTAL PACIFIC, LLC (SLU 03-006/REZ 03-014/SMA 03-009) was called to order at 10:52 a.m. in the County ` Building, Councilroom - Room 201, 25 Aupuni Street, Hilo, Hawaii, with Chairman Fred Galdones presiding. PRESENT:Fred Galdones Earl Fujikawa Bill Graham Florence Kubota (left at approximately 10:57 a.m.) Jeffrey McCall Aurelio C. Mina, Jr. Francis Smith Hannah Springer Bill Thibadeau Patricia O'Toole, Esq., Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Staff Planner Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 17 people from the public in attendance. CONTINENTAL PACIFIC, LLC (SLU 03-006/REZ 03-014/SMA 03-009) a.Application for a State Land Use Boundary Amendment for 3.344 Agricultural to the Urban District. b.Application for a Change of Zone for 12.640 acres of land from 20,000 square feet (ML-20), General Industrial Î 5 acres (MG-5a), Village Commercial Î 10,000 square feet (CV-10 to RS-20) and Agricultural 20-acre (A-20a) to Single Family Residential Î 20,000 square feet (RS-20) and ML-20 districts. c.Application for a Special Management Area (SMA) Use Permit to allow the development of 11 lots, including portion of a roadway lot, and related improvements. The area involved includes the former Hilo Coast Processing Mill complex and surrounding former sugar cane lands at Pepe`ekeo, South Hilo, Hawai`i, TMK: 2-8-07:portions of 1 and 53. ` GALDONES:I would like to call this Hawaii County Planning Commission to order. Members of the public, good morning. Fellow Commissioners, good morning. 1EXHIBIT A I thank the public for being patient with us. We did a site visitation in reference to the application Continental Pacific this morning, so we're slightly a little late in getting back here. Commissioners, on the agenda item before us is Agenda Item No. 1, and the Applicant is Continental Pacific, LLC (SLU 03-006/REZ 03-014/SMA 03-009). This is an application for a State Land Use Boundary Amendment for 3.344 acres of land from the Agricultural to the Urban District. And another application for a Change of Zone for 12.640 acres of land from Limited Hmctrsqh`ki1/+///rpt`qd feet (ML-20), General Industrh`ki4`bqdr'LF,4`(+Uhkk`fd Bnlldqbh`ki0/+///rpt`qdedds (CV-10 to RS-20) and Agricultural 20-acres (A-20a) to Single Family Residential i1/+///rpt`qdedds (RS-20) and ML-20 districts. And the third application is for a Special Management Area (SMA) Use Permit to allow the development of 11 lots, including portion of a roadway lot, and related improvements. Norman? HAYASHI:Thank you, Mr. Chair and Members of the Commission, good morning. As you will recall at the meeting of September 22 nd, the Planning Commission had continued this particular request, these three applications, for the purpose of going on a site visitation to the property. We did go on a site visitation at 9:00 this morning. There were approximately 30 individuals, including the Commissioners, at the site inspection or investigation. Just for the record, basically we started at the -, I'll refer to the Staff's zoning map, we started off at the intersection of Hawai`i Belt Road and the Old Mill Road, and that's where the gear is located. We came down and stopped by the area which is currently the -, which was the warehouse area that is being requested for a State Land Use Boundary Amendment from Agricultural to Urban and also rezoning from Agricultural 20-acres to ML-20. Then we moved along and came down to the old mill site, which is located here, and also the areas that will be requested along the shoreline for certain zone changes. First of all, the area which is zoned MG-5a and which is requested to be rezoned to RS-20, the area designated in this green shaded area, outlined area, which is being requested to be rezoned from ML-20 to RS-20, and finally this particular area in red, which has been rezoned from Village Bnlldqbh`ki0/+///rpt`re feet to RS-20. In this particular location, also, if I may direct your attention to this map here to the right, which is the overall photograph of this particular development, the SMA line is here, indicated in red, excuse me, blue, and the proposed 11 lots being requested for a use permit, SMA use permit, is indicated in red. We did view these area. Then we moved along towards the north, and we walked down an area which -, along -, from this road to the shoreline, then we moved along here towards the north and came back. Then 2 we moved, went back up to the old railroad right-of-way towards the north and came to a -, the area that is proposed for a public access in this general location. And that concluded, basically concluded the field investigation of this particular application. Since the last meeting, we received a number of correspondences. First of all, after the nd September 22 meeting, we received two correspondences from Claudia Rohr. One was a letter addressed to the Planning Commission, attention to Chair Fred Galdones, and this basically asked several questions and asked for clarification on certain issues. The second was a letter, also dated September 25, addressed to Planning Commission, attention Chair Galdones, and basically requesting that Commissioner Kubota excuse herself of participation of review of this petition. We also received a letter from Lorraine Mendoza, who is the president of the Pepe`ekeo Community Association, dated October 15 th, requesting that the Commission continue this hearing to a later date. We also received a letter from Steven S.C. Lim, who is the representative for the Applicant, also requesting that the Commission, excuse me, requesting that Applicant, I mean the Commission continue this hearing held today. We finally received a letter from Commissioner Kubota, informing the Commission that she will recuse herself of participation on this matter. Are there any questions at this time? GALDONES:Norman, is there any particular order in which we need to address these letters? Should we address Mrs. -, Commissioner Kubota's letter of recusing herself, so she wants to be recused from participating in any discussion? Would that be the proper order? Okay. Mrs. Kubota, you want to address the letter, or you just would like to recuse yourself from this discussion at this moment in time? KUBOTA:I think in my memo to you, Mr. Chairman, I asked for time to respond to the concerns as expressed by the writer of the letter, and state my reasons, for the record, as to why I choose to recuse myself on this particular application. GALDONES:You may proceed. KUBOTA:Thank you. But before I go into the meat of this whole thing, Mr. Chair, with your permission, I'd like to ask for a point, another point of personal privilege. I have in the audience a member who, of my class as a fourth and fifth grader, there's Lennie Okano sitting there, and I am so pleasantly pleased to see a young lady, she has turned into, interested in, you know, affairs of this sort. And so we had a chance to visit earlier, and I encouraged her to become a member of the commission someday, and I guarantee you she'll do a good job. That's Lennie Okano, one of my favorite students from Kalaniana`ole School. So happy to see you here. 3 And now, Mr. Chairman, thank you for the opportunity to respond. After -. Okay, let me just start out this way. I still maintain and reiterate the fact that I feel confident that I can render a decision that is unbiased, however, because this application comes to the Commission through the channels, the proper channels, supported by the community as well as the Planning Director, I feel that I don't want to sit here clouding the issues and distracting arguments of alleged conflicts of interest or of impropriety. Therefore, although I have never, I have never, I will swear under oath that I have never discussed this application with my son, knew nothing about it, I chose to recuse myself because of the cloud that it may present over this application. I feel that it would be unfair to the Applicant and my Commissioners, fellow Commissioners, if I participated. The other issue of Ms. Rohr, the letter, I was much disturbed and taken by surprise of intimidation, that I had intimidated her in this hearing. So, therefore, I combed through the transcripts, and to my knowledge, I can't find anything there that is neither flustering to anybody that I said or intimidating to anybody. That's the way I've worked myself through five years of hearings. And the public, the transcript is a public document, and I would encourage anyone who has any concerns to please go and read it through. It is my belief that I was here to do a job and if my -, and I was merely, the gist of it is I was merely trying to clarify points that are made by testifiers, that I am not very clear about. So I mean I thought that was the kind of give and take we needed to come to a rational decision, so that was my intent. I came here to do a job, I did my job, and if that is deemed a crime, then so be it. Having said that, I will recuse myself, dismiss myself from this hearing. I will be back to consider the other applications. Thank you. GALDONES:Commissioner Kubota, we respect your wishes, and the record will so note that you have recused yourself. KUBOTA:Thank you. GALDONES:In dealing with this agenda item. Commissioners, any questions of Ms. Kubota, Commissioner Kubota? If not -. KUBOTA:I will see you later. Good luck. Good deliberation. GALDONES:Just let us know where we can reach you. Let us know where we can reach you when we go to the second agenda item. Okay. Moving forward on the agenda, then Commissioners, are there any questions of Norman? If none, then could we have the Applicant or the representative please step forward. Mr. Lim, could you raise your right hand. Do you swear or affirm to tell the truth on this ` matter now before the Hawaii County Planning Commission? 4 LIM:I do. GALDONES:Mr. Lim, could you state your name, residence address, please. LIM:I am Steven Lim from Carlsmith Ball at P.O. Box 686 in Hilo. Today with me from Continental Pacific are Mr. Jere Henderson, Mr. Barron Strother, Jeremy Henderson, and our marketing director is Hank Correa. We would like to thank the Commission for taking its valuable time to do the site visit. I hope that going out to the property will assist you in your deliberations on our matter. We sent in our letter requesting a continuance of the hearing because we had received some comments from members of the committee, the community that they wanted to fully understand the scope of the project, not only the portion that was under consideration by the Commission in front of you today but the rest of the project that you saw today. And in that ` light, they attended a meeting, a community meeting in the Pepeekeo community last night, and we're going to be attending another one specifically on the Continental Pacific lands and ` their plans for the Pepeekeo area on this coming Monday. So it wasn't enough time to get it done before having the hearing today, so that's why we requested the continuance to the Commission's next meeting, which I believe is on November 21 st in Hilo. GALDONES:Mr. Lim, we thank you for being so gracious to accommodate our request for a site visit and, personally, for me, it gave me a better insight of the scope of your request, the development that you folks are entailed in. Commissioners, are there any questions of Mr. Lim? Hearing none, Mr. Lim, you have submitted a request for a continuance. LIM:That is correct. We wanted to continue to the Commission's next meeting, which I understand is November 21 st. GALDONES:Okay. Are there -, if there's no further question of Mr. Lim, there are members of the public who have signed up to testify, so Mr. Lim, if you could graciously step back, and we have Claudia Rohr and Sarah Moon who have signed up to testify. Is Sarah present? Sarah, could you come forward, please. Could you ladies please raise your right ` hand. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? TESTIFIERS:I do. GALDONES:Sarah, would you like to begin. State your name and residence address, and then you may begin your testimony. 5 ` MOON:Yes, my name is Sarah Moon, 121 Lokoaka Street, Hilo, Hawaii 96720. I'm here with a written statement from the Sierra Club, and I am on the Executive Committee of the Sierra Club, and I would like to thank all of you Commissioners in having this site inspection and seeing the beauty of this area. Some of us went on a informal hike about a month ago. GALDONES:Ms. Moon? MOON:Yes? GALDONES:Sorry to interrupt you. I have a note here. Does anybody own a GMC truck, License No. 980 HCV? You are to remove your vehicle. You are in I guess unauthorized parking. PUBLIC:What color? GALDONES:It doesn't say. NOMURA:Burgundy. GALDONES:Burgundy. PUBLIC:Not red? NOMURA:Red. PUBLIC:I'm across the street and my -. Is that me? NOMURA:No this is -. PUBLIC:Okay, no, not me. GALDONES:Okay. Sorry, Ms. Moon. It's Jason. Ms. Moon, I'm sorry for interrupting you. MOON:Sure. GALDONES:You may proceed. MOON:Anyway, it's a great place. I think it would be a great place for locals and visitors eventually to appreciate this kind of ecology on the shoreline, and I appreciate the fact that there are quite a few public access in this development. 6 I have a written statement which I would like to submit, and it mainly, we would like, you know, that the public accesses be available and accessible and removal of any no trespassing signs on roads. I didn't see any today, but there was a lot to look at. Shoreline access signs at the intersections where there is shoreline access. No gates except access gates along the Old Mill Road. And that the gates, access gates be open between 6:00 a.m. and 6:00 p.m. Access for night fishing. And other things about registering about night fishing. You guys can look at it. And I'd just like to let you know that we are keeping our eye on the coal ash pile and its legality and toxicity. I have one signed copy. Should I submit more? Would anyone else like more -? GALDONES:Norman? MOON:Copies of our statement? GALDONES:Will we be able to produce copies for the Staff, for the Commissioners? MOON:And I just would like to ask Mr. Kim, Lim, Mr. Lim, I'd lik about that next community meeting that you mentioned on Monday, where -, what time it is? GALDONES:Ms. Moon? Speak into the mike so we can have you recorded, please. I would like to participate in the community meeting that Mr. Lim MOON: discussed on Monday, just -, I would like to know the date and time and place. GALDONES:Okay. Any -? You want -? Can you discuss that later with him? MOON:Yes. GALDONES:Okay. Do -, are you through with your testimony? MOON:I am through. GALDONES:Okay. MOON:Thank you for your time. GALDONES:Commissioners, are there any questions of Ms. Moon? Thank you, Ms. Moon. Ms. Rohr. ROHR:I'd like to address the letter I sent requesting information, to start with. I finally did receive the important parts this week, with the help of Norman, and he tracked down, I believe, some of them in the Director's office. I never did receive the fishing agreement from the Planning Department, although I went in late yesterday and I had re-read the transcripts from the last hearing, and Mr. Lim had testified that he had submitted it with his application. So I did call him, and he sent it over to my home this morning at 8:47 by fax, and I appreciate that. But I 7 am sorry I missed your site visit because I really wanted to get a copy of that agreement, and that's the agreement between the Pepe`ekeo Association and Continental Pacific concerning fishing access rights. So I'd like to start with a discussion about easements. I discovered that there were no easement documents given over to the Planning Department for these public really shocked. Chapter 34, Section V, Paragraph C of the County Code concerning public access, states that -, oh, excuse me. Section 34-8, Paragraph A states that the subdivider shall file the executed documents for dedication of the public access free and clear of all encumbrances wit the director. Excuse me, I skipped the first part. Upon review of a subdivision application, when it is determined that a public access must be provided, the subdivider shall file the executed documents for dedication of the public access free and clear of all encumbrances with the Director. Prior to final subdivision approval, the dedication documents shall be reviewed and approved as to its form and content by the appropriate agencies. The Director may thereafter grant approval to the subdivision in accordance with the subdivision rules and regulations of the County. Somewhere else in here, it states that what they mean by public access is public access out to a public road or highway. So, therefore, it's not just to an association road, it's supposed to be an easement from a public road or highway, all the way down to the shoreline, continuous. So I'm sort of surprised because Phase I of the subdivision was approved and finalized at the beginning of this year, and those documents have still not been produced. I understand that they're still discussing intricacies of how to get around on the pali edge, but I still feel all the other access documents, easement documents should have been written approved. If there were some outstanding issues, I could see maybe those documents not being written up, but the major ones, like granting access down the major roads, granting access to the parking lots and the walking trails over to the pali edge, to me, it was not correct to finalize the subdivision without those in place. And the other thing is it's -, when you're creating an easement, first you're creating it by survey, so it is on the plan. But second, it needs to be described in metes and bounds and a legal description needs to be produced, and it needs to be granted to the County of Hawai`i. And that's a legal document that should have been filed at the Bureau of Conveyances so that, to me, is -, having it just by survey doesn't protect anybody and only leads to a lot of misunderstandings and arguments later. Okay. I was concerned about the Pepe`ekeo Association community agreement. It surprised me that it existed, and I didn't -, I could not find a copy of it. My concern was that I had been going to the Planning Department for months and with many other people, and been hearing from them how well everything was going, that the Pepe`ekeo Community Association was meeting on a regular basis, that they were taking care of the public's interests, and I trusted in that process to believe that they, of anyone, would negotiate a good agreement. 8 I have in my hands the fishing agreement. Has anybody on the Planning Commission received a copy of this agreement? Okay. I just got it hot off the press. I didn't even have time to copy it. And I had to choose between going home to get that and going on the tour, so I'll welcome, I mean you can share it, but I need to use it right now. I'm just going to talk about number one, because the rest of the agreement is all a private agreement. Mr. Lim mentioned in his testimony, which I've read, that they're willing to legalize their agreement with the Pepe`ekeo Association, but it sounds to me like they're still negotiating now that they have said that they'd be willing to do that, so that's up in the air. But in their agreement, number one talks about the public's general access rights, and it states in the last line that the Fishing Access Committee and Continental shall jointly establish rules for administration of night time public access. Okay. Let me just -. What they've signed up to do -. Wait, let me read the whole paragraph. "General public access shall be to the parking areas outside of locked gates with pedestrian access from the parking area to the shoreline and laterally along the shoreline along the top of the pali. Public access shall be from 6:00 a.m. to 6:00 p.m., with night time public access by permit issued by FAC, that's the Fishing Access Committee. Night time public access shall be only to the parking areas outside the locked gates. The FAC and Continental shall jointly establish rules for administration of night time public access." I'm a little confused here. Not only do they have this special appointed the police, too. And it appears from my understanding, they have agreed to administer the night time fishing sign-up and all of that for the developer. Usually, the developer has to take the calls, issue the keys, and handle that. But he's made a deal with the Fishing Access Committee that they'll be responsible for that and they'll also pick up trash and other things and take care of the pali. In exchange, they get all these things and they are going to administer the night fishing. But it says that they and Continental Pacific shall jointly establish the rules. Then later it says that these rules may be modified any time or terminated in the event of substantial and repeated violations. I was under the opinion that the law called for the County of Hawai`i to set up the rules for the night fishing and that it would be a condition of the permit that it would be the developer's responsibility to administer the program if, in the event the Parks Department didn't have the resources to administer it. The general rule being that the Parks Department would like the developers to take on that responsibility. So I'm a little confused because it sounds to me like night fishing is up to these two parties who have a very complicated agreement that doesn't include the rest of the public, and I'm uncomfortable now with them being the so-called police and setting rules for the rest of us so -. th Then the other thing that bothered me was the date of this. This is dated September 10. I notice that -, I have over here if you don't have one, Exhibit A. That was one of the documents said was missing from the file. I only got it a couple days ago. Exhibit A shows certain easements on -, created by survey in favor of the Pepe`ekeo Association. They signed this agreement, and they refer to, you know, this plan as they're making this agreement. Then it's after they get this agreement signed, they submit a revised preliminary plan and all of those 9 easements dedicated to the Pepe`ekeo Association are suddenly missing from that plan, and they're now missing from the final subdivision plan. And you can see that, because I have both of them here if nobody else does. I can show you where they're missing, where they were, and then where they were missing. And the problem I'm having is that final subdivision, wait, excuse me, that revised preliminary subdivision plan that was accepted by the County dated October of 2002, I think it was 2002, it was missing from the file this whole time. There was a note in the file saying this plan is missing. And I've asked for it and asked for it and asked for it. I finally wrote and got it, but guess where it was, in the Planning Director's office, I believe. There's a problem with public information. It's often in the Planning Director's office and unavailable. So how would the Pepe`ekeo Association even know that had been taken off the preliminary plan? Okay, point made. Signage. They submitted their version of what the signage shoul reads that night fishing is according to the Planning Department's rules or according to the Planning Department's something or other. It doesn't give a phone number, you know, it doesn't identify who's administering the night fishing. I think that there should be a large sign, and I'm concerned with the size of it, the size of the letters, and I think it should invite people to use the public access, and it should not be on a fence where there's a gate with a no trespassing sign. I think a locked gate's a locked gate, and there can be a small sign saying this gate's locked on purpose and, you know, use the public access to the right, but if people drive down a road and see no trespassing on the gate, they're not going to look to the right and see the little sign that says, you know, come in. The other thing is that those small blue signs that direct you down to the shoreline, and they should be placed along the roadways so that you know that you have a -, that public access, you turn left here or you turn right here. Then there should be one leading down to the parking area. And the other thing is is I couldn't find any pins marking the parking areas. The subdivider wa supposed to have everything pinned at the final subdivision approval stage, and I've never been able to actually find any pins to know where to park my car, so I'm curious whether it's actually been surveyed. Okay, so that's general signage. Number -, the other issue is there's an SMA 221 for the Hilo Coast Power Company's parcel, Parcel 53. That also -, that SMA started in 1985 or 6 and then they came in to revise it in '95 or 6, and the way that reads is that even though they've revised it and there's new conditions, they still have to abide by the conditions of the first permit. I'm suggesting here that since you're now going to be reviewing an SMA for the same area, that you be careful that you don't have a conflicting document that would conflict with SMA 221 and have different conditions, and that you refer to those other conditions and make the -, and keep the In SMA 221 conditions is that the public is to be provided access to the shoreline. That was never done formally. Well, here we are again reviewing an SMA and also a proposal to rezone from Industrial to Residential, and I believe they are planning on putting a couple of residential lots, but I don't see any public access to the shoreline formalized. So again, it seems to me that this is the opportunity to realize that Parcel 53 has an obligation to provide shoreline access. 10 And generally speaking, I appreciated Commissioner Galdones, your comments about reviewing the larger picture and being comfortable with it, and Commissioner Graham, your concerns with wanting to answer some questions before we go forward. I'm asking that you stop for a moment. Your -. You have the opportunity. The negotiated agreement doesn't say anything about this hearing. You have the right to do what you're allowed to do by law. I'm asking you to stop an consider the general project. I think under the SMA laws or rules or whatever, regulations, that you're allowed to consider things that impact the SMA area. I'm going to bring up the coal ash specifically because it's on Parcel 1 and Lot 82, I believe, of this application. I'm recommending that the Council look at asking the subdivider to place a bond in the amount of the minimum being $3 million to guarantee that that coal ash pile will be removed. My concern is that if you allow this subdivision to go forward without any bond in place, all 92 lots will be farmed, they will be sold, and that particular parcel with the problem on it, meaning the coal ash, will be abandoned, and the coal ash will remain and will become the County's responsibility. I've done the numbers. It was two years ago. At that time, I thought it was a $3 million in the event that they were forced to truck it over to Kona to a landfill and dump it there. Also, I'd like to bring to your attention that -, and I'd like to recommend that you ask the subdivider and the facilitate -, BEI, to put up a second bond in the amount of $3 million, no, yeah, $3,650,000 in the event that the County of Hawai`i finds them in violation of the Zoning Code, back 10 years, due to -, and due to fraud. That would be if they were fined the maximum amount of $1,000 a day. nd I have a letter here that I just received. It's dated July 2, 2003. It's to Ms. Janice Fujimoto, Solid and Hazardous Waste Branch, Department of Health. "Dear Ms. Fujimoto: Regarding Special Management Area Use Permit No. 221, Applicant Hilo Coast Waste Management Permit RY-0053-02, Beneficial Reuse of Coal Ash, Hilo Coast Power Company and Continental Pacific, LLC, TMK: 2-8-7-1 and Parcel 53." We have -, this is from Christopher Yuen. "We have received a copy of the letter sent to BEI, LLC and to Continental st Pacific, LLC on May 21, 2003, regarding the stockpiling of coal ash on TMK Parcel 1. I have met with representatives of HCPC regarding this activity and have come to an informal agreement to allow the stockpiling and removal of coal ash pending an application for a special permit to legitimize this operation. We are requesting that you consider this letter as a temporary zoning clearance for the solid waste management permit applicati Continental Pacific, LLC. Thank you for your consideration in this matter. Christopher Yuen." I would like to read the conditions of the solid waste permit that is actually -, it was a renewal permit. They had been operating for five years with everybody's pile was on Industrial zoned land. GALDONES:Ms. Rohr, may I interrupt you? Is the coal -, I'm trying to look through my notes, and I'm not so sure if that coal ash is part of those three applications that Continental Pacific is coming before us. If it's not before us -. ROHR:It is, it's on -. 11 GALDONES:Oh. ROHR:Lot 80, it's on Lot 82. GALDONES:It's within one of the three applications? ROHR:Yeah. Yeah. GALDONES:That we are dealing with? ROHR:Uh huh. HAYASHI:Mr. Chair? GALDONES:Because -. ROHR:Yeah. It's on - GALDONES:Wait. ROHR:Lot 82. GALDONES:Norman, maybe you can clarify for us. HAYASHI:Yes, Mr. Chair, the coal ash pile that she is referring to is not part of any of the three applications that are before you today. GALDONES:Okay. If that is the case, Ms. Rohr, you may continue testimony, but we have no jurisdiction over that because that application is not before us to deal with. ROHR:That's okay. I again want to reiterate it's on Lot 82, whi considering a portion of today. GALDONES:Well, not according to Norman. I'm sorry, Ms. Rohr. ROHR:Norman, I'm hard of hearing, and we're going to have to tak here for Norman and I to get on the same page, please. GALDONES:Okay. What Norman is saying, Ms. Rohr, is that that coal ash is not within any of the three applications that the Commission is dealing with. ROHR:Okay. That's -, if you look at -. They're trying to break down into very small portions these very small questions, but there's a larger -. The lot that they're considering is 500 acres, right? 12 GALDONES:No, I understand -. ROHR:Okay. GALDONES:What you are trying to -. ROHR:Okay. GALDONES:Drive at but -. ROHR:Okay. GALDONES:For the Commissioners -. ROHR:That's fine. GALDONES:We will not be dealing with the coal ash. ROHR:Okay. GALDONES:I'm not stopping you from -. ROHR:That's fine. GALDONES:Providing testimony, but we will not be considering that. ROHR:Okay. GALDONES:So I just wanted to let you know that. ROHR:Okay. I'm going to continue on because I believe that there's an nd indication here that July 2, they should have started applying for that special permit, and I believe that they have not done so because they want this, these actions to go through first before -, so that they can continue on with their development and isolate the coal ash into a smaller parcel. And this is just -, maybe you can take this as a warning of what -, the way I see it. The way I see it is that they would rather the public doesn't even know about this or that you know about this. It's been 90 days, and they have not submitted an application for a special permit. So this is what the State says. On -, with -, in their permit, Part 2, Special Conditions, ` Number 5, this permit is issued based on the County of Hawaii Planning Department's letter nd dated July 2. The letter grants temporary zoning clearance for the stockpiling and removal of coal ash on TMKs 2-8-7:1 and 53 pending an application for a special permit to legitimize this ` operation. Should the County of -. This is Number B. Should the County of Hawaii Planning Department decide to rescind the temporary zoning clearance, deny the special use permit, or otherwise disallow the use of TMK Nos. 2-8-7:Parcel 1 and 53, for the stockpiling 13 and removal of coal ash, this solid waste management permit shall be revoked. The date of ` revocation will be on the same date that the zoning clearing from the County of Hawaii Planning Department is rescinded. The Zoning Code requires that a special permit be held and the public is to participate. I've been waiting for three years now, and my warning to you is that if this subdivision keeps going forward and you create 92 lots around -, and they're able to make a smaller lot and isolate that coal ash, then they'll -, when do we get to talk about it, you know? After it's too late, all the parcels are sold, the public doesn't even know about it. And on what authority does the Planning Director have to issue temporary zoning clearance? I thought that the public had a right to a hearing. I've been asking for it for over two years. It's a lot -, you know, this has been going on -, if you look at SMA 221, which involves the area that we're looking at today. If you read the testimony from that hearing, you'll see that they -, nobody wanted them to bring coal. They -, everyone was ` concerned about the coal ash. The County of Hawaii was promised that they would recycle that coal ash and properly dispose of it. They have written letters in on a yearly basis saying that they have done so. It turns out that they haven't recycled any of it until last year maybe they started recycling some of it. But the majority of it is still there, probably 70,000 cubic yards. They say that the capacity is 20,000 cubic yards. They didn't even get a permit to place it there. It's been subject of EPA clean water violations, and we're supposed to allow a 92-lot subdivision to continue forward without any assurances that that lot won't be created around the coal ash pile then abandoned. I am sorry, but there's no easement documents. That's not consistent with the law. There's no special permit. That should have come before this hearing. That one should have been heard first. Okay. I'll quit with that. The other thing I'd like to mention is in the testimony that Steven Lim gave last meeting, he mentioned that out in front of the Mill Road entry it was, he said it was like a raceway where people are trying to pass each other on the road because that's the place where you have two lanes and can pass. And those were his words, like a raceway. It's in the public document. I'd just like to remind you to read the request of the Highways Department, State Highways Department for a traffic study. And with that statement in mind, and then also I hope that you ` won't forget that there was the mentioning that the Pepeekeo Association agreement would become legalized. I'm still concerned with the rest of us, and I'm still concerned that people ` have a chance to realize that we were counting on the Pepeekeo Association to take care of the public's interest. I'm going to give you the fishing agreement, and ask that you don't look at vehicular traffic down to the ocean, but you consider whether we should have the right to walk down to the ocean in the same places. And if you think it's beyond the scope of this SMA, I think that's debatable, because I have been told that if there is something that can affect something else, 14 then you need to consider it. The association road is what I'm trying to get at here is that they want to make that so that there is no public easement to walk down that road. It would really solve a lot of problems if there was just a walking easement down that road because there's two public easements that go to nowhere unless you get a public easement down that road. It's -, I discussed it with Christopher Yuen on the phone. It was P-2 or P-14. Do you remember what they were? Do you -? It was the one from the Chinese -. YUEN:I don't remember the numbers. We talked about the one from the, the one to the Chinese cemetery. ROHR:Okay. It's on the survey map as a public access. There's two of them. One's from -. I didn't quite hear what he said, it was buzzy in my ear, but there's two easements on the survey that go down to the association road and end, and the only way to get to them would be if you ask for a public walking easement down that main association road. So with that -. GALDONES:That's your testimony? ROHR:That's my testimony. Thank you. GALDONES:Commissioners, any questions of Ms. Rohr? If not, thank you, Ms. Rohr. There's another member of the public who wishes to testify, Lorraine Mendoza. HAYASHI:Mr. Chair? GALDONES:Norman. HAYASHI:Just as a matter of information for the Commissioners, the fishing agreement that Ms. Rohr refers to is and has been part of the rezoning file, so it's available to the public. We will make copies for the Commissioners, so Ms. Rohr, you don't have to send them a copy of the fishing agreement. ROHR:Are you saying, Norman, that when I called you to find it, you found it later than our conversation? HAYASHI:When you came in yesterday afternoon at 4:15, this file was presented to you, and we indicated to you to look through the files if you wanted to look for the fishing agreement. After you had left, we had looked at the file, it is in here, and I have marked it here, so it's in the file. So we'll make copies for the Commissioners. Thank you, Norman. GALDONES: ROHR:But in our phone conversation of Tuesday, Norman, didn't yo you did not know where the fishing -? 15 HAYASHI:No, we did not discuss the fishing agreement. You had asked about the settlement agreement and the exhibits for the settlement agreement that we got copies of. ROHR:I'd just like to make a note for the record. I did write in in detail of what I was asking for and asked for a call when those items were locate minute yesterday, just to make sure that it wasn't there, and if I missed it, I'm sorry, but, you know, I made -. I don't think that it should be this hard. I just don't think I should have to put out this much effort to get information. GALDONES:Thank you. Ms. Mendoza. Ms. Mendoza, could you please right hand. Do you swear or affirm to tell the truth on this matter now before the Hawai`i County Planning Commission? MENDOZA:I do. GALDONES:Could you please state your name, your residence address, and you may begin your testimony. MENDOZA:Okay. My name is Lorraine Mendoza, and I live in Pepe`ekeo. My mailing address is P.O. Box 877. And what I'd like to do is read a letter that I submitted to the Planning Commission, and it's addressed to Mr. Fred Galdones, Chairman, Planning Commission, and this is regarding SMA 03-009, REZ 03-014, SLU 03-006, Applicants being the Continental Pacific, LLC. "Aloha, Mr. Galdones and Members of the Planning Commission. On behalf of the Pepe`ekeo Community Association, the Pepe`ekeo Fishing Access Committee, Pepe`ekeo Filipino Association, the Pepe`ekeo Senior Center, and the residents of Pepe`ekeo, I am submitting this request for a continuance on the above-named SMA 03-009, REZ 03-014, and SLU 03-006. "The PCA, that being the Pepe`ekeo Community Association and the Fishing Access Committee have on record with the Planning Commission testimony on the positive relationship of Continental Pacific, LLC on the issue of fishing access for community residents. The contents of this testimony reference in entirety the resolution of fishing access issues that the community deemed important. "At a meeting of 22 members of the Pepe`ekeo leadership on Tuesday, October 8, it was evident that the full content and impact of SMA 03-009, REZ 03-014, and SLU 03-006 on the community is not clear. Concerns regarding developmental plans, property taxes, and resulting impact were raised. It is apparent that further opportunities for discussion by the community, developers, and various agencies and departments are needed to inform and educate the residents on the resulting consequences such as the effect on finances, lifestyle, environment, livelihood, and their future. I have enclosed a copy of the roll sheet of this meeting for your perusal. "I ask that your favorable consideration of this request for continuance be granted. Respectfully submitted, Lorraine Mendoza, president of the Pepe`ekeo Community Association." 16 GALDONES:Ms. Mendoza, I understand that you folks are meeting with the developers, the community. MENDOZA:That meeting is scheduled for Monday, 7:00, at the Kula` Community Center. GALDONES:Okay. Commissioners, any questions of Ms. Mendoza? Thank you very much. Mr. Lim. LIM:Thank you, Mr. Chairman. I guess in light of the fact that we have a request to continue the hearing, I'd probably defer any more comments so that you can move on with the other business, if that's okay. GALDONES:Okay. Commissioners, any question of Mr. Lim? Commissioner Graham. GRAHAM:I just want to address this to Mr. Lim and Mr. Yuen at the same time. I don't, I'm not well versed on the specifics, although I've heard in my reading about the coal ash situation. It does seem like the structural problem that Ms. Rohr brought forward about, which I interpreted to be like this. If one buys a large section of land, it may have some asset value a some liability value, and maybe the coal ash situation is a liability value within the large piece of land they bought. So then if they develop the portions of the land which are a asset to them, but neglect to do anything with the liability portion, and her feeling is that may be just kind of "and often forgotten in the long run," that doesn't feel like that's a proper process. And whether legally that's the way it has to be, I don't know. I know our Chairman Galdones felt that since it was not part of this particular application before us, it perhaps is not relevant. However, we're certainly looking at public access points along the ocean, which are also not part of this particular application but they are relevant to what we're discussing. So anyway, I would just like to put forward that I feel like I need a little more clarification about this ash area and whether it is being dealt with or whether it is really off the table as far as our concern at this time because it's not obviously so in my mind. GALDONES:Mr. Yuen. YUEN:I suppose a comment is that the landowner might walk away f pile by managing to segregate it into a smaller piece of property. The current, the coal ash pile is currently part of a lot that's roughly 800 acres in size. If this, if these particular applications that you have went forward and were approved, the coal ash pile would still be a portion of a lot that is something like 750 acres in size, which is -, it is on a -, it will be on a parcel that is of substantial value in itself. So that, it's not -, these actions will not result in the coal ash pile say being on a separate lot that then everything else gets sold around it and leaving just the coal ash pile. GALDONES:Mr. Graham, Commissioner Graham. 17 GRAHAM:I guess what I'm hearing you say is certainly responding to what I was thinking. What you're saying is if they bought asset and liability, the particular parcel that contains the liability also continues to contain a lot of asset value. Therefore, it's not necessarily right this moment to deal with it. But if anything further goes on with that parcel, then perhaps it would be. Am I reading that correctly? YUEN:Yes. And just to add, there are at least three private entities with an interest in getting a resolution to the question of the coal ash pile, that being Continental Pacific, which owns the fee, the Hawaiian Rainbows Company, that has a lease with option to purchase the property, and Brewer Mauna Kea Agribusiness, which has some contractual responsibility with Continental Pacific with respect to the existing of that coal ash there. GRAHAM:Thus, it's your belief that this would not be missing the appropriate opportunity to deal with the coal ash issue if we continued without referencing it in our negotiations at this time? YUEN:It's an issue that has -. The coal ash pile is an issue that is being worked on separately. It's -, for the Planning Commission to go forward on these applications will not prevent any opportunity from -, for solving the coal ash as a separate matter. GRAHAM:Thank you. GALDONES:Okay. Commissioners, any further question of Mr. Lim? Commissioner Thibadeau. THIBADEAU:Yeah, I'd like to ask the Director to comment on the easement requirement for the public access. I'm somewhat confused by that. Is it in fact a requirement, and what's the situation on protecting the easement? Or is an easement required, I don't know? YUEN:We will be getting an easement, we -. The only excuse I wo the easement not being in hand is that there are only so many hours in the day, and we haven't finalized the easement documents. We could finalize most of them. The only -, there are some issues with respect to the lateral easement. The remaining easements are -, but the remaining easements are in the final subdivision map. They are a requirement of subdivision. I don't see a practical problem with waiting on the easement documents, but we will need to get those done. The part that needs to be verified on the ground are a few of the -, are on the lateral easement along the coast. There are a few places where we have to settle on the final alignment because of terrain issues like little gullies that have to be skirted. THIBADEAU:Thank you. GALDONES:One moment. There's some procedural matters that I need to discuss with Counsel. 18 Commissioners, any further questions? Any further discussions? If not, there's two subject -, two actions that we need to take on this subject matter. First of all, I was discussing with Counsel here that there was a letter, or I should say a petition for standing in a contested case hearing that was submitted, and then the other is for a request for continuance. In the petition for standing in a contested case hearing, it has been ruled that this petition was not filed in a timely manner and, therefore, becomes ineligible for us to consider it or give it any standing for a contested case hearing. Commissioners, you folks are in receipt of the letter, I believe. Okay, so then let us deal first with the petition for standing, then deal with the matter of continuance. Is there a motion to not grant standing for the petition in a contested case hearing which was submitted by Robert Smith? Commissioner Graham. GRAHAM:I move that the Commission does not grant standing for a contested case hearing to Mr. Robert Smith because of the lack of timeliness of his request. FUJIKAWA:I second it. GALDONES:It has been moved by Commissioner Graham, seconded by Commissioner Fujikawa, that the petition for standing in a contested case hea will not be granted standing. Discussion? Norman? SPRINGER:Mr. Chair? I just -. GALDONES:Commissioner Springer. th SPRINGER:Thank you. Just referring to the October 8, 2003, letter from the Director, which cites not only the timeliness issue but also the requisite filing fee was not included. GALDONES:So noted. Further discussion? Norman? HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Mina? MINA:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. 19 HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:And Chair Galdones? GALDONES:Aye. HAYASHI:I'm sorry, Commissioner Fujikawa? FUJIKAWA:Aye. HAYASHI:Motion carries. GALDONES:Thank you, Norman. Commissioners, there is a request by the developer, it was submitted by Mr. Lim, and also a letter from the Pepe`eke requesting that this application be continued on all three. Commissioner Fujikawa. FUJIKAWA:I make a motion to continue all three applications of Continental Pacific, LLC, SLU 03-006, SMA 03-009, and REZ 03-014 be continued to the next Hilo meeting. MINA:Second. GALDONES:It has been moved by Commissioner Fujikawa and Commissioner Mina that the application of Continental Pacific SLU 03-006, REZ 03-014, and SMA 03-009 be continued to the next Hilo meeting. Discussion, Commissioners? Commissioner Fujikawa. FUJIKAWA:When is the next Hilo meeting? MINA:Twenty-second. st HAYASHI:November 21. st MINA:Okay, the 21. GALDONES:Further discussion? Hearing none, Norman? HAYASHI:Commissioner Fujikawa? FUJIKAWA:Aye. 20 HAYASHI:Commissioner Mina? MINA:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Commissioner Smith? SMITH:Aye. HAYASHI:Commissioner Springer? SPRINGER:Yes. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Chair Galdones? GALDONES:Aye. HAYASHI:Chair, motion carries. GALDONES:Thank you, Norman. Mr. Lim, you will be informed in wr actions. LIM:Thank you very much. The discussion ended at 12:10 p.m. Respectfully submitted, Janet L. Kama, Transcriber 21