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HomeMy WebLinkAbout2003-11-07 TKOBAYASHI PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT NOVEMBER 7, 2003 A regularly advertised hearing on the application of JOHN KOBAYASHI (SPP 581) was called to order at 2:35 p.m. in the Ohana Keauhou Beach Resort, Kahaluu ` Ballroom, 78-6740 Alii Drive, North Kona, Hawai`i, with Second Vice-Chairman Hannah Springer presiding. PRESENT:Hannah SpringerABSENT AND EXCUSED:Earl Fujikawa Bill Graham Fred Galdones Florence Kubota Jeffrey McCall Aurelio C. Mina, Jr. Francis Smith 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 Kiran Emler representing Department of Public Works (Left 4:15 p And approximately 45 people from the public in attendance. APPLICANT: JOHN KOBAYASHI (SPP NO. 581) Request for a time extension to Condition No. 5 (commence operation of self-storage facility) of Special Permit No. 581, which allows the establishment of a nursery and visitor center and a self-storage facility on 12 acres of land situated within the State Land Use Agricultural District. The property is the site of the former Fuku Bonsai Center located along the east (mauka) side of the North Kona Belt Road and the North Kona Belt Road - Haawina Street, Keauhou 1st, North Kona, Hawaii, TMK: 7-8 SPRINGER:Commissioners, we are on agenda Item No. 5. The Applicant is John Kobayashi, SPP No. 581. ItÓs a request for a time extensio (commence operation of self-storage facility) of Special Permit No. 581, which allows the establishment of a nursery and a visitor center and a self-storage facility on 12 acres of land situated within the State Land Use Agricultural District. The property is the site of the former Fuku Bonsai Center located along the east (mauka) side of the North Kona st Belt Road and the North Kona Belt Road Î Haawina Street, Keauhou, North Kona, Hawaii, TMK: 7-8-6:65. EXHIBIT C Members, as you know from our materials, there has been a request for a Contested Case on this matter. The format that weÓll follow will be to have the staff presentation, weÓll call for the ApplicantÓs representative to come forward, and either the individual or their representative who is asking for the Contested Case hearing, and then weÓll take a vote on that matter, and then open our microphone for any public testimony that there may be following the vote on the Contested Case hearing. Are there any questions on the process that weÓll be following right now? Okay. Thank you. If we could have the staff presentation, please? DARROW:Thank you, Madam Chair. If I could direct your attention to the location map. The area that weÓre going to be looking at today for this proposed request is in upper Keauhou, in this particular area. Just to give you some bearings, this here is the Upper Mamalahoa Highway running in a north-south direction. We have Kuakini Highway running in a north-south direction, with Capt. Cook on the south side, Kailua on the north side. The area that weÓre looking at is just at the intersection of Mamalahoa and Haawina Road or Street. It is identified with a red dot in this area here. The Applicant is John Kobayashi. He is requesting a time extension for Special Permit No. 581. HeÓs requesting the extension for Condition No. 5 which stated that the proposed self-storage facility shall commence operations no later than December 1, 2003. TheyÓre requesting an extension till December 1, 2006 to be able to commence operations for the self-storage facility. Just to give you an idea what the proposed use is like on the site plan, we have certain existing structures that were permitted under Special Permit 581. This was actually permitted back in April 10, 1985 for a bonsai visitor center wit The Special Permit was later amended in July 6, 1990 for a time operations on their visitors center and to also add a coffee processing facility on this property. Later, again, it was amended on November 30, 2000 to include a self-storage facility on approximately 7 acres of the 12-acre parcel. That particular area and use is what weÓre looking at today for the time extension; and it is identified in red, in this area here. And as of this date the actual self-storage facility has not commenced operations. And, so, theyÓre requesting, they still have till December 1, 2003, but theyÓre here before us today st to request an extension until 2006, December 1. We have received two Petitions for Standing in a Contested Case Hearing. One is from James and Marla Allen, who are brother and sister, and the other is from Greg Colden. Are there any questions? SPRINGER:Commissioners? Commissioner McCall? MCCALL:Just to make sure, the original Special Permit was to Dav Fukumoto for Fuku Bonsai? Is that correct? 2 DARROW:Correct. MCCALL:And which of the amendments to it were by John Kobayashi which were by Fuku Bonsai? DARROW:Okay. Give me one second. I have both permits here. Ok December, the self-storage facility was for Mr. Kobayashi. The July 6, 1990 was actually for Fuku Bonsai as well. MCCALL:So just the last amendment? DARROW:Correct. MCCALL:Okay. SPRINGER:Thank you, Commissioner McCall, Jeff. Any other questions? At this time IÓd like to invite the Applicant or the ApplicantÓs representative forward, please. Excuse me, just a moment, please. Thank you for bearing with me like to invite the Applicant or the ApplicantÓs representative and all those who have signed up or who are wanting to give testimony on this agenda item to please stand so that I may swear you in. Thank you. Please raise you right hands? Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? TESTIFIERS:I do. SPRINGER:Thank you, all. To the ApplicantÓs representative, could you please state your name, your resident address and speak directly into the microphone, please? FUKE:Sure. Thank you. Good afternoon, Madam Chair, members of Commission, my name is Sidney Fuke. IÓm a Planning Consultant. IÓm here assisting the Applicant. My resident address is 1358 Mele Manu St. in Hilo. Specifically, you know, in your staff report, I would like to just kind of indicate just one editorial correction. In item No. 7, I think there was a December 26, 2003 date. I believe that should be 2000, I think. But aside from that, I think the way that your staff had presented the Background Report is accurate. Just to summarize, however, the reason for wanting this extension -. After the permit was approved by this Planning Commission in December of the year 200 appealed. And subsequent to the appeal, although the appeal was in favor of the Applicant, also, the Planning CommissionÓs approval of the amendment -. Then subsequent to that the Applicant did engage a contractor to start working on it. In the meantime, the contractor passed away and the Applicant had some physical problems of 3 his own such that -. And after that, then, there was some litigation between another contractor and the owner. So the long story being short, over the last two or three years he has made some efforts to, good efforts to try to get this thing on the road. But because of these different circumstances he has not be able to complete the activity and open it in a timely manner. The other point I kind of wanted to make is that, and perhaps it just kind of, was an oversight on everybodyÓs part. But when the amendment was approved, this is really one of those rare Special Permits youÓll notice that did not have a time extension clause which would enable the Planning Director to grant a time extension; and, as a result, you know, we are, you know, before this body. We realize, also, that, you know, there have been two requests for standings in a contested hearing and, as a result, the owner has retained the services of Mr. Matsukawa to represent him. SPRINGER:Thank you. Mr. Matsukawa, do you have any comments at this time? MATSUKAWA:Just very briefly. I imagine -. SPRINGER:May I have your address, please? MATSUKAWA:My name is Michael Matsukawa. My address is 75-5751 Kuakini Highway. IÓm an attorney. Mr. Kobayashi engaged me the first t alluded to, when the permit was first contested. For this particular thing, I suppose the issue will come up at the later part of this hearing so I may as well address it - that the issue before the Commission is for an extension of time. You kn testimony IÓve seen seems to want to re-argue the substance of the original permit and the original amendments that were made. Your Rule 6-8 provides for the procedure; and the issues are what condition is involved, the length of time requested and what is the reason for the request. So if the Commission is inclined to grant a co type format or other agreed-upon format, I think the issue is limited to that question of why is a time extension requested; and itÓs to the CommissionÓs discretion to determine what to do about the request. Thank you. SPRINGER:Thank you, Mr. Matsukawa. Commissioners, do you have any questions or comments either for the ApplicantÓs representative Commissioner Graham? GRAHAM:Yeah, IÓd like to ask our Corp. Counsel representative -. Pat, do you read Mr. MatsukawaÓs interpretation that really the only issue before us should relate to the time extension and should not relate to the merits of the permit? OÓTOOLE:ThatÓs right. It is not on the table to revoke the permit or anything. ItÓs just, the question is the amendment that theyÓre asking for of the condition. So they -. 4 GRAHAM:Right. And the grounds by which we might choose to exten could they have to do with the content of the permit, or do you feel it should only have to do with time-related grounds? OÓTOOLE:Well, the reason for the request, the length of time requested, you know, we can only go by the rule. I think that everything they bring up has to be related to whatÓs wrong with a time extension. SPRINGER:Thank you. Mrs. Kubota? Did you have a question or comment? KUBOTA:No. My question was precisely as Commissioner Graham asked. SPRINGER:Thank you. Commissioner McCall? MCCALL:I have a question. It seems to me that we may be getting catch-22 situation, though. Because if I understand it the Special Permit, IÓm not sure, is the Special Permit revoked if they donÓt reach this thing by the time deadline or is it just subject to revocation? I guess, this is to the Planning Director. SPRINGER:Director Yuen? YUEN:I think itÓs subject to being revoked. OÓTOOLE:It says Ðthe Director shall initiate procedures to revoke the permit.Ñ YUEN:We would need further proceedings, though to actually revok OÓTOOLE:Right. MCCALL:Could that be held in abeyance while the contested case goes on? OÓTOOLE:Oh, yes. YUEN:Yes. KUBOTA:Madam Chair? SPRINGER:Commissioner Kubota. KUBOTA:In every other condition that IÓve noticed, there is a provision stated where the authority lies with the Planning Director. And inadvertently as the, I think it was Mr. Fuke who brought that point out, even if it is an error on our part inadvertently we still have, we are bound by what is in the present conditions? We cannot say it was supposed to have been there but we didnÓt do it? I mean, yes, no? 5 YUEN:No. KUBOTA:Okay, thank you. Just thought IÓd ask. YUEN:If you went back to the record and the recommendation before the Commission had had that extended by Director, right, and the Commission voted to adopt that recommendation and then it was left off the permit that was sent out, then that could be corrected. KUBOTA:I see. But this is not in the condition, okay? All right, all right. Thank you. I was just trying to make it fast. SPRINGER:Members, are there any other questions or comments either for the ApplicantÓs representative or lawyer? KUBOTA:Madam Chair? GRAHAM:I -. KUBOTA:Commissioner Kubota, followed by Commissioner Graham? KUBOTA:Clarification. My understanding is that today we are considering the request for extension and the arguments should be germane to this request for extension. And this is not to revisit the reasons why or why not of the permit that was granted before? SPRINGER:ThatÓs correct. The agenda states that this is a request for a time extension to Condition 5, which is to commence operation of a self-storage facility of Special Permit No. 581, which allows the establishment of a nursery and visitor center and a self-storage facility. KUBOTA:Thank you. SPRINGER:Commissioner Graham? GRAHAM:IÓm not totally convinced that, you know, that canÓt be more revisited. But, you know, I certainly defer to the attorneys who know a little better than me. It just feels like the folks that want to do a contested case hearing should probably have a good clear word from us to begin with about what would be the subject of that, so they can decide whether they want to proceed based on that. SPRINGER:Thank you, Commissioner Graham, your point is well made and I think thatÓs the purpose of this discussion right now. And, at this point, if there are no further questions or comments from the Commissioners, I would like to invite the Applicants for Standing in the Contested Case Hearing to come forward to the table. 6 Welcome to the table. YouÓve all been duly sworn in. Unless you have a preferred order, weÓll be starting from the right-hand side of the table. And as youÓve heard the discussion amongst the Commissioners, amongst the Director, our counsel and the ApplicantÓs representative and legal counsel, whatÓs before us today is the time extension. And weÓd be having more discussion of that with you. But to begin our discussion, as long as youÓre clear that thatÓs what is the agenda item before us. Name and residence, please? M. ALLEN:My name is Marla Allen. IÓve been a resident of Kona since 1966. I bought my property in 1989, formerly Tanaka Quarry. It was reconsolidated and subdivided in Ó88 and Ó89. My dates are -. I have to give you some background. I understand where youÓre going with this but I do need to give you some background on the entire area. In 1995, t the construction baseyard on the property adjacent to this, which was also owned by Fuku Bonsai. It was litigated over a year-and-a-half and placed on the agenda to revoke. In 1974, adjacent to that, Special Permit for Yamaguchi was put on non-compliance. They were operating on Mr. KunitakeÓs property across the way. Mr. Yamaguchi flew over to see about having it not revoked for non-compliance. This Commission voted to revoke and said he may as well come to reapply. Mr. Kunitake, IÓm just trying to get to, there are several special permits in this area that does not make this a reasonable use. Please allow me to finish my testimony. SPRINGER:Excuse me, we have our Deputy Corporation Counsel who might be able to give us some, all of us some clarification on this. OÓTOOLE:Yeah. The first thing we want to do is to decide which parties have standing, if any, and then weÓre going to proceed to contested case, in which case you can bring out all this information. Or if thereÓs only public testimony, you can bring it out, but -. M. ALLEN:All right, my name is -. OÓTOOLE:The issue is standing at this point. SEITER:My name is Kevin Seiter. I live right out by that dangerous Hienaloli Road. My mailing address, P.O. Box 1839, Kailua-Kona the Allens and Mr. Colden. IÓm an attorney, please donÓt hold that against me. The reason that we filed the request for contested case was really out of an abundance of caution. The notice that went out to the property owners contained a contested case form. And rather than possibly waive that right, we filed the request on behalf of the Coldens and the Allens. Both of them, the Coldens are adjoining property owners to the subject property. The Allens, essentially, live across the street. And theyÓre both directly impacted by this proposed development. 7 If you deny the request for an extension and the Director sets this for a revocation hearing, which weÓre requesting you do, the Contested Case request is moot because the merits of the matter can be addressed at the revocation hearing. The reason I bring that up is, as Ms. Allen was going to point out, the Applicant has failed to satisfy a number of conditions under the request. And one thing that concerns me is the record in this case. I looked at the file. And the file contains some correspondence from the ApplicantÓs representative which indicates that the Applicant, Mr. Fuke and Mr. Hayashi had a conversation in which Mr. Haya-, the record will either support me or not, in which Mr. Hayashi indicated that the 7-acre storage facility could be built anywhere on the 12 acres; and that is not what the history of the matter before you shows. You placed, or I should say the Commission placed a 7-acre cap on the storage facility based on the maps which were submitted to the C was first requested. And I note that those show by metes and bounds where the storage facility will be; and it was clearly in conjunction with the development of, or I should say, the redevelopment of the bonsai center and the coffee processing facility. But when you look at the documents in the record, the indication is that they can go ahead and build the storage facility anywhere they want irrespective of the development of the coffee facility and the bonsai center, which flies in the face of the conditions upon which this permit was granted. So this really kind of goes to the reasons for the request. I think that itÓs important, first, to determine whether or not the permit should be revoked. And if youÓre going to do that then what you need, what we ask you do is, to do is deny the request for an extension because the Applicant has failed to comply with conditions in the permit. Now Condition No. 11 says that if they failed to comply with those conditions that the permit ÐshallÑ be revoked. It doesnÓt say ÐmayÑ in the discretion of anybody. It says Ðshall.Ñ Now this may be an oversight in terms of the language, but the public has relied on that; and thatÓs what the record shows. And the record shows that the storage facility would be built in a specific area. So these are points that go to the reasons for the request. And I want to bring them to your attention because itÓs not as straight-forward, I think, as the ApplicantÓs representative would have you believe. SPRINGER:Mr. Seiter, in light of your comments, are you still in pursuing the Petition for Standing in a Contested Case Hearing? SEITER:Well, like I say, itÓs really moot if you deny the request and the Director subsequently sets a revocation hearing. So itÓs kind of a Catch 22, as somebody said in another respect. SPRINGER:Mr. Director? YUEN:Sometimes people will say if you deny it then I donÓt need a contested case. That really is not an option. YouÓre requesting to intervene in a contested case. The rules say that the Commission must take that up first. If they grant 8 you the request to intervene, then the Commission will have a discussion about whether -. By past practice, the Commission will not make a decision today. have a discussion about whether they want to have a hearing officer hear the contested case; and thatÓs what we would do. So you have a, if you, you cannot have the Commission vote on whether theyÓre going to grant the extension or not before having your request for intervention decided upon. SEITER:ItÓs the ApplicantÓs position then that if you donÓt act affirmatively on this today that their extension is automatically granted. So if you donÓt take some affirmative action, then thatÓs their position, and theyÓre going to start building their storage facility. M. ALLEN:On Ag land, special permit. SEITER:So letÓs flush this out, as they say. FUKE:I didnÓt say that. SEITER:No. Mr. Fuke didnÓt, Mr. Matsukawa did. YUEN:Is that your position? I donÓt think thatÓs correct. MATSUKAWA:No. The rule just says if the Planning Commission does not act on st the request and December 1 comes, the use can still continue. All right, thatÓs what the st rule says. So, in other words, come December 1, if the Commission hasnÓt yet voted, it doesnÓt mean we stop doing anything, I mean, Rule 6-8. Because, through a contested case, letÓs say it takes till January before we even come up with a st final decision, you know, December 1 comes and goes -. st YUEN:I think anything you do after December 1 is at your own risk. MATSUKAWA:Right. SEITER:Sounds like Hokulia. st YUEN:You have until, as the permit stands, you have until Decemb. Even if the Commission voted today to deny your time extension, you have until st December 1. MATSUKAWA:ThatÓs correct. ThatÓs correct. YUEN:If the hearing is continued today, any actions that you take would not bring you into compliance with the condition. 9 OÓTOOLE:It says the use granted may be continued unless the Planning Commission specifically disallows the activity during the interim period. So thatÓs the whole rule. MATSUKAWA:ThatÓs right. SPRINGER:Mr. Fuke? FUKE:Between the two lawyers, IÓd just kind of like to introduce my view of this. But the use has not been established. If the use were established, then we wouldnÓt be here before you, so -. And I think the other factor to consider is like what Mr. Yuen had indicated, I guess, to the Commission, is that inasmuch as this application th has already been timely filed and even if December 4 or whatever the date comes and then thereÓs no disposition on that, that he will not initiate any revocation of the permit. Because what Mr. Seiter failed to read or failed to share with the Commission is the caveat that leads to the Director shall initiate procedures to revoke the permit, and that is, it reads, ÐShould any of the conditions not be met or substantially complied with in a timely fashion,Ñ then, Ðthe Director shall initiate procedures.Ñ So we would contend that, one, to let the contested case hearing run its course, you know, would be a reasonable. I think any reasonable person would assume that thatÓs a reasonable extension. SPRINGER:Thank you. Director Yuen, do you have any further comments? YUEN:I concur that if you put this over to a contested case, the fact that st the application has been filed does not mean that the December 1 date does not, I would st not start to revoke because the December 1 date has passed. By the same token, their efforts that they make after December 1, 2003 to commence constr the self-storage facility would be at their own risk, that the permit is not extended, that the permit may not be extended. SPRINGER:Thank you. Counsel OÓToole, any clarifications for us or guidance? OÓTOOLE:No, I think thatÓs right. SPRINGER:Okay. And, Mr. Seiter, I return to the question to you, would you like to proceed with our discussion of the two petitions before us for standing in a contested case hearing? SEITER:Yes. SPRINGER:Thank you. And if we can focus on the reasons why the Applicants are coming forward and why they should be granted standing, please. And are you representing -? 10 SEITER:IÓd like to defer to Ms. Allen and Mr. Colden on the, and let them address those points. SPRINGER:Would you folks like to take a couple of minutes to clarify? It doesnÓt look like youÓre -. SEITER:Yeah, Mr. Colden just arrived from out-of-state. Maybe he could join us up there. COLDEN:I canÓt hear anything. SPRINGER:Okay. Ms. Allen, may we swear Mr. Colden and then continue with you? M. ALLEN:Yes. SPRINGER:Welcome. I trust you traveled safely. COLDEN:IÓm having difficulty hearing. I guess -. SPRINGER:Welcome. IÓm glad you arrived safely. Could you raise your right hand and let me swear you in. Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? COLDEN:I do. SPRINGER:Thank you. WeÓll return to Ms. Allen for comments; and your turn comes to testify, weÓll proceed with getting your name and address. Thank you. Ms. Allen? M. ALLEN:Thank you. I spent many hours in trying to put together a background as to why and would like to just be allowed the time to go over my testimony. SPRINGER:Ms. Allen, you know, in essence -. SEITER:Standing issue. M. ALLEN:Standing issue. Okay, on standing issue, I live in Tanaka Subdivision. ItÓs no longer the Tanaka Quarry. ItÓs going to affect me, itÓs going to affect my property values, itÓs going to affect the traffic and the safety and health, and my property values will not, it will not benefit my property values SPRINGER:And you share a boundary with the Applicant? M. ALLEN:And I share with -. IÓm sorry? 11 SPRINGER:Do you share a boundary? In your written comments you surrounding property owner impacts property value, traffic, health and safety. I wonder if you share a boundary with -. M. ALLEN:I donÓt share a boundary. IÓm on the other, on the makai side of Tanaka Subdivision, across from the Water Department, another Special Permit issued in that area; and that is -. SPRINGER:What is the distance from the ApplicantÓs property? M. ALLEN:Distance? IÓm not sure what the distance is. Mr. Colden is directly next to it. I am impacted, IÓm in the subdivision. And if thatÓs a criteria for, I travel Haawina and Kuakini, which is just going to horribly impact. IÓm in the Tanaka Subdivision, the same subdivision where the Fuku Bonsai has been abandoned for several years. This should have been put on the agenda to revoke before Virginia Goldstein approved it, November 30, 2000. SPRINGER:Just a moment, Ms. Allen. Well, if we can get some, a representation for us regarding the proximity of Ms. AllenÓs property from the ApplicantÓs property. Ms. Allen, were you served notice as a surrounding property owner? M. ALLEN:Yes. SPRINGER:So you were within that radius? M. ALLEN:Yes, I was. I have the letter here. NOMURA:Please use the microphone. M. ALLEN:Yes, I was served. SPRINGER:Thank you. IÓm reading now from 4-6(c) of the Planning Commission Rules of Practice and Procedure and those state that ÐThe applicant shall serve notice to surrounding property owners and lessees of record pursuant to Section 25-2-4(a) and (b) of the Zoning Code. Such notice shall also include a form developed by the Planning Department that outlines the contested case procedure and who qualifies. In addition, the notice shall state that you have the right to file a written request for a Contested Case procedure.Ñ So, clearly, Ms. Allen has been following this section of the Planning Commission Rules of Practice and Procedure. Ms. Allen, do you have any more statements regarding your Petition for Standing and reasons why we might admit you? M. ALLEN:There have been numerous violations on this property. 12 SEITER:No, no, just to address why -. SPRINGER:If, just if you have anything more to add -. M. ALLEN:Other than itÓs zoned Ag, itÓs going to impact the area and impact my, the safety, my property values. SPRINGER:And youÓre within that proximity. M. ALLEN:And keep in mind this is a scenic route, and itÓs very previous to me. SPRINGER:Thank you. Members, IÓve been advised by Corporation Counsel that we take the petitions sequentially, one at a time. I belie Marla Allen her reasons for coming forward. I would ask if thereÓs an objection to the Petition for Standing by either the ApplicantÓs representative or legal counsel. FUKE:No. SPRINGER:Thank you. Members? KUBOTA:I have a question. SPRINGER:Commissioner Kubota? KUBOTA:The Petition has two names on it, brother and sister, James Allen and Marla Allen. Whom are we granting standing to? Which one? SPRINGER:Ms. Allen? M. ALLEN:WeÓre co-owners on the property. KUBOTA:Yeah. But do we, as a rule, grant standing to two people? OÓTOOLE:Husbands and wives. M. ALLEN:Brother and sister, two houses. SPRINGER:Ms. OÓToole, could you offer that into the microphone, please? OÓTOOLE:I donÓt see why not. If both persons have the interest that is required in the rule, I donÓt see why we canÓt grant to both. So, in fact, sheÓs saying they both own the property, live on the property. 13 SPRINGER:And, Ms. Allen, in effect, are you serving as your brotherÓs representative today? M. ALLEN:Yes, I am. He had to get back to work. SPRINGER:Thank you. Other Commissioners, are there any questions of Marla Allen, who sits before us with a Petition for Standing in a Contested Case Hearing? Seeing none, may I have a motion on Marla AllenÓs request for Standing in a Contested Case Hearing? KUBOTA:Madam Chair? SPRINGER:Mrs. Kubota. KUBOTA:I move that Marla and James Allen be granted standing in contested case hearing. SPRINGER:Thank you. Is there a second? MCCALL:Second. SPRINGER:Seconded by Commissioner McCall to grant, made by Commissioner Kubota, seconded by Commissioner McCall to grant standing to a brother and sister, James and Marla Allen, for standing in a contested case hearing before us on this agenda item. Is there any discussion? Jeff, may we have a roll call vote, please? DARROW:IÓm sorry, Madam Chair. Who seconded? SPRINGER:Seconded by Commissioner McCall. DARROW:Okay. Thank you. Commissioner Kubota? KUBOTA:Aye. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner Mina? MINA:Aye. 14 DARROW:Commissioner Smith? SMITH:Aye. DARROW:Commissioner Thibadeau? THIBADEAU:Aye. DARROW:And Madam Chair? SPRINGER:Yes. DARROW:The motion passes. SPRINGER:Thank you. Ms. Allen, your request for standing in the contested case hearing has been granted. WeÓll now move to the next petitioner. Mr. Colden, could you please state your name and your address, and offer for the record the reason why you should be considered for standing in a contested case hearing? COLDEN:Thank you. My name is Greg Colden. I live at 6053 Skyli Boulevard, Oakland, California 94611. ThatÓs my permanent residence. I have prepared a statement which I wish to read. IÓm a little fuzzy cause I ju bear with me. Let me preface this by saying that I do not know the history of the Tanaka Quarry nor the Fuku Bonsai. There was some disclosure at the time when I was negotiating to buy the 5 acres thatÓs directly adjacent to the subject property. SPRINGER:Mr. Colden, can you please direct your remarks to your petition for standing rather than any arguments that you would care to make. For example, previously, we determined that the Allen family was served notice to surrounding property owners, and I cited Section 4-6(c) of the Planning Commission Rules of Practice and Procedure. Were you also served notice? COLDEN:No, I was not. I was in the middle of closing escrow; and at that time there was not notice given to me. I was apprised of this by Ms. Allen some weeks after I closed escrow. SPRINGER:Do you know if the previous owner was served notice? COLDEN:IÓm unaware of that. There was disclosure that there was a Special Use Permit that had been issued for the Ðsmall storage facility; disclosure packet. 15 SPRINGER:Question. Do you share a boundary with the ApplicantÓs property? COLDEN:Most definitely. SPRINGER:Okay. COLDEN:Yes, IÓm directly north of the property. IÓm in the process, in fact, IÓm going to go over and see it right now. IÓm in the process of building my home and that would view directly down onto the proposed development. SPRINGER:Thank you. Members of the Commission, I think that Mr. Colden has addressed to us the fact that although he did not, he was not personally served notice, he shares a boundary with the subject property, and his or her interest is clearly distinguishable from that of the general public by virtue of sharing this boundary with the ApplicantÓs property. Do you have anything else to add at this time, Mr. Colden, regarding the reason that you should be granted standing in a contested case hearing before us? COLDEN:Other than the fact that it is agricultural land, it was, the impetus for my buying this property was that this will ultimately be my retirement home, that the Mamalahoa Highway has a strong history of being the coffee belt and agricultural land, and that this sets a dangerous precedence for future development of non-agricultural uses and/or residential uses on Mamalahoa. There is also another concern that that intersection which enters onto Mamalahoa is not a controlled intersection and that there, IÓm concerned as to whether theyÓve been traffic studies to determine the viability of the traffic thatÓs going to be impacted by this development. SPRINGER:And, Mr. Colden, we can take up those, that sort of testimony in the future. Right now, weÓre determining whether or not you qualify for standing in this contested case hearing. And if you stand by your written remarks on your petition and we verify that you share a boundary with the Applicant, unless you have something more to add, I think that we can act on the application. COLDEN:No, thank you. Thank you very much. SPRINGER:Thank you. Commissioners? KUBOTA:I have a question. May I pose it to Mr. Colden? SPRINGER:Yes. KUBOTA:Mr. Colden, through your testimony I gather that you were, there was a disclosure made to you of this particular permitted area. You said it was a small disclosure? 16 COLDEN:There was a disclosure, a written disclosure, in the disclosure packet when I was negotiating in escrow. KUBOTA:And that -? COLDEN:I had never seen the, IÓm sorry for interrupting. Please -. KUBOTA:Go ahead, go ahead. COLDEN:The schematic or the map, the proposed development had ne been given to me, that had never been disclosed. My understanding was that it would be a small storage facility with gardens, and they were going to reclaim the Fuku Bonsai development in some fashion. KUBOTA:And where, what is the source of that disclosure? COLDEN:The realtor that was representing the seller, Al Gas. KUBOTA:Thank you. SPRINGER:Other Commissioners? MINA:Ask if there are objections. SPRINGER:I will. I just want to make sure that thereÓs no more discussion from the CommissionersÓ table. Thank you. To the ApplicantÓs representative and lawyer, do you have any objections? MATSUKAWA:No. SPRINGER:Thank you. Members, are we ready for a motion? KUBOTA:Madam Chair, I move that Greg Colden be granted standing in this contested case hearing. THIBADEAU:Second. SPRINGER:That was moved and seconded by Commissioner Thibadeau t standing be granted to Greg Colden in this agenda item. Jeff? DARROW:Thank you, Madam Chair. Commissioner Kubota? KUBOTA:Aye. DARROW:Commissioner Thibadeau? 17 THIBADEAU:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Mina? MINA:Aye. DARROW:Commissioner Smith? SMITH:Aye. DARROW:And Madam Chair? SPRINGER:Yes. DARROW:The motion passes. SPRINGER:Mr. Colden, you, too, have been granted standing in the contested case hearing on this matter regarding John Kobayashi and the request for time extension to Condition 5 of Special Permit No. 581. Having accomplished this business, we now need to establish how weÓre going to move forward, and with regard to scheduling and the possibility of hiring a hearings officer on the matter. Members, are there any questions or comments for the Planning Director as we begin this discussion? I have my standard question to you, Chris, about the affordability of holding a contested case hearing. Should we be considering hiring a hearings officer or should the Commissioners be taking this matter up ourselves? YUEN:We have funds budgeted that would allow us to hire a hearin officer for the Commission, if thatÓs the Commission wish. IÓd also want to warn the Commission that, looking ahead at the agendas, we do have many, many items on our agenda both today and in the future that are going to take your attention. SPRINGER:Our Corporation Counsel has drawn my attention to 4-7(c), IÓm sorry, 4-7(d) of our Planning Commission Rules of Practice and Procedure. And those read or that reads: ÐAfter establishing the parties to the proceeding, the Commission may either proceed with the hearing, or upon a written request by any party, and for good 18 cause, continue the matter to a more appropriate time and date.Ñ Is there any response to that rule from any of the parties? Mr. Colden? COLDEN:Because I live 2,500 miles away, on a permanent basis, I would need as much advance notice as possible. I am here for the next 8 days. I doubt that you could schedule a hearing within that time. But I would need at least one monthÓs notice in order to handle my affairs. SPRINGER:Thank you, Mr. Colden. FUKE:Madam Chair, the Applicant has no objection in having it continued, go, proceed in the way that it has been traditionally done, that is to say make a decision on whether you want a hearings officer or hearing by the entire Commission and set up your schedule thereafter in terms of like when parties have to exchange exhibits, witness list, so on and so forth. SPRINGER:Thank you, Mr. Fuke. And having consulted with the Planning Director and Counsel, this is the way that weÓll proceed at this time. WeÓll take a vote on whether or not to have a hearings officer; and based on the result of that vote, there will be notification of the parties with regard to scheduling all of the requirements of the contested case hearing. Is there, are there any questions, comments on the procedure that weÓll be following? Thank you. So now we have before us the assurance of the Planning Director that there is funding to hire a hearings officer. We do need to be mindful of a heavy schedule for the Planning Commission in the months to come. Knowing these things, do we have a motion? KUBOTA:Madam Chair? SPRINGER:Commissioner Kubota? KUBOTA:I move that we request the Planning Director to secure a hearings officer to hear the amendment to Special Permit No. 581. MINA:Second. SPRINGER:It has been moved and seconded by Commissioners Kubota and Mina for the Planning Director to hire a hearings officer on the matter of Applicant KobayashiÓs request for a time extension to Condition No. 5 of Special Permit No. 581 in keeping with the hiring procedures of the Hawaii County. Is there any discussion? Seeing no discussion, Jeff? KUBOTA:Hi. DARROW:Hi. 19 SPRINGER:Hi. It was moved by Commissioner Kubota and seconded by Commissioner Mina. DARROW:I was just kidding. Commissioner Kubota -. KUBOTA:We need some levity here, you know. DARROW:Commissioner Kubota? KUBOTA:Aye. DARROW:Commissioner Mina? MINA:Aye. DARROW:Commissioner Graham? GRAHAM:Aye. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Smith? SMITH:Aye. DARROW:Commissioner Thibadeau? THIBADEAU:Aye. DARROW:And Madam Chair? SPRINGER:Yes. DARROW:Motion passes. SPRINGER:Thank you. And all of you will be informed in writing of, in written communication from the Hawaii County Planning Department and its staff regarding scheduling and the calendar that will be set up to hear this contested case hearing. SEITER:Madam Chair, IÓll be representing the applicant, or I should say the petitioners, or the testifiers as theyÓve been referred to, in the contested case. So I request that all the communications go to me. 20 SPRINGER:Thank you. And that will be both of the intervening parties? SEITER:Yes. SPRINGER:Thank you, Mr. Seiter, Ms. Allen, Mr. Colden, as well as Messrs. Matsukawa and Fuke. Members, may we take a 10-minute recess at this time. RECESSEDThe Chair called a recess at 3:26 p.m. RECONVENEDThe meeting reconvened at 3:40 p.m. SPRINGER:Members and audience, IÓd like to call this meeting of the Hawaii County Planning Commission back into order. We agreed that we would hear testimony from the public on the John Kobayashi agenda item. We offer to anyone in the audience who would care to make testimony on that matter. The Planning C going into decision-making today. There will be the contested case hearing which will be held and then the Hawaii County Planning Commission will meet on of the hearings officer. Right now, we have Desmond Twigg-Smith, Bill Allen, Laura Bebe, Kevin Seiter, Marla Allen and James Allen who have signed there is anyone in the audience on this list who would care to make testimony to us now, please bear in mind weÓre merely half-way through our lengthy agenda and you will have other opportunities to testify on this matter. The Hawaii County Planning Commission is not going into decision-making on this matter today. Are any of those individuals still in the audience, and do any of them care to make testimony at this Sir, if you could please come forward, then. B. ALLEN:Thank you for allowing me to speak. SPRINGER:YouÓre welcome. And thank you for waiting through the us. If I could swear you in, please? B. ALLEN:You already did. SPRINGER:Oh, previously. Thank you. If you could offer your name and resident address, speaking into the microphone. B. ALLEN:My name is Bill Allen. My address is 78-6944 Kiaaina Street, Kailua-Kona. I think IÓm supposed to limit my conversation to the extension request, more than anything. Is that correct? SPRINGER:Yes, please. B. ALLEN:I would just like to say that I think that there may be a reason that hasnÓt been brought up yet as to why the request is requested, the extension request. And that is that I donÓt think itÓs a good time to build a storage business where heÓs building i 21 right now. I have had several conversations with Mr. Kobayashi and I have given him my opinion. And if you look at the storage business, itÓs a neighborhood business. People like to put their things close to where their homes are and, therefore, most of your businesses come from an area thatÓs within a 10-mile radius of your business. Mr. KobayashiÓs business happens to be almost equal distance between Kona Self Storage, which is in Kealakekua, and Kuakini Self Storage doing business as Power Storage at the intersection of Kuakini and the QueenÓs Highway. So if you extend a ten- mile radius out in front of his business, it intersects over in the Kuakini area and intersects in the Kona Self Storage area. Looking at that market, the market which he intends to serve, there will be, with Kuakini coming on line, approximately 85,000 square feet of new storage that will be available roughly about February or March of next year. ItÓs well under construction. You can see it quite easily from the QueenÓs Highway as you head north towards town, and it is well on its way to being completed. In addition, the Kona Self Storage isnÓt full, has never been full, and has consistently been able to serve the market without sending customers away. Having said all of that, when Kuakini comes on line, thereÓs going to be about 120,000 square feet of storage to serve the market that Mr. Kobayashi intends to serve; and of that 120,000 square feet of storage, 90,000 square feet is vacant. T feet is occupied and 90,000 square feet is vacant. ItÓs not a good time to build a storage business; and I think thatÓs part of the reason he has requested it; and I just wanted to get that on the message. Thank you. SPRINGER:Thank you, Mr. Allen. Commissioners, any questions or comments? Thank you for spending time with us and for taking so your day. Is there anybody else who wishes to give testimony on the John Kobayashi application? Hearing none, Mrs. Kubota, may we have a motion to close public testimony? KUBOTA:Madam Chair, I move that we close the public testimony po this agenda item. MCCALL:Second. SPRINGER:Seconded by Commissioner McCall. Is there any discussion on the motion to close public testimony on this agenda item No. 5? Hearing none, all those in favor of closing public testimony indicate -. OÓTOOLE:I think youÓre going to allow public testimony even before the hearings officer. YUEN:This is unnecessary. There will be further hearing on this matter before the hearings officer. ItÓs not necessary to close public testimony. The matter is simply deferred because of the contested case hearing pending. 22 SPRINGER:Okay. KUBOTA:Madam Chair, I then retract my motion. MCCALL:I withdraw. SPRINGER:Okay. And we thank both of our able guides for their w the matter. The discussion ended at 3:45 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 23