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HomeMy WebLinkAbout2003-11-21 tflorida PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT NOVEMBER 21, 2003 A regularly advertised hearing on the aookhb`shnmneEKNQHC@QR@"7KKBiej` USCOC OF HAWAII 3, INC. (SPP NO. 1084) was called to order at 2:50 p.m. in the ` County Building, Councilroom - Room 201, 25 Aupuni Street, Hilo, Hawaii, with Chairman Fred Galdones presiding. PRESENT:Fred GaldonesABSENT & EXCUSED: Francis Smith Earl Fujikawa Hannah Springer Bill Graham Florence Kubota Jeffrey McCall Aurelio C. Mina, Jr. 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 one person from the public in attendance. APPLICANT: FLORIDA RSA #8 LLC Î fka USCOC of Hawaii 3, Inc. (SPP NO. 1084) Request to delete or modify condition number 2 (planting of trees along ridge line), number 3 (proposed tree planting), and number 4 (tree planting plan) of Special Permit No. 1084, which allowed the use of an existing 195-foot telecommunication tower, antenna, accessory equipment building and structures, and security fence on approximately 6,100 square feet of land, including access easement, within the State Land Use Agricultural District. The project site is located above and on the Hilo side of Maulua Gulch, approximately 1.3 miles mauka of the Hawaii Belt Highway, Maulua Iki, North Hilo, Hawaii, TMK: 3-4-1: Portion of 22. GALDONES:Commissioners, Agenda Item No. 5. Applicant is Florida RSA #8 LLC Î formerly known as USCOC of Hawaii 3, Inc. (SPP No. 1084). delete or modify condition number 2 (planting of trees along ridge line), number 3 (proposed tree planting), and number 4 (tree planting plan) of Special Permit No. 1084, which allowed the use of an existing 195-foot telecommunication tower, antenna, accessory equipment building and structures, and security fence square feet of land, including access easement, within the State Land Use Agricultural District. Norman? EXHIBIT C HAYASHI:Thank you, Mr. Chair. First of all, let me go to the pr map on the wall, on the board, to give you a description of the property and where itÓs located. First of all, this is the Hawaii Belt Highway, and this would be in the Hilo direction, and this would be driving towards Hamakua. Laupahoehoe is located here and Ninole. This is Maulua Gulch. The subject property is or the proposed, excuse me, the existing tower site is located, indicated in yellow, by this yellow dot here. It is part of a larger parcel in this general configuration. The tower is situated on approximately 6,100 square feet of land. Going to the site map again, this would be the entire parcel; and the Special Permit was to allow the 195-foot high tower on this small 6,100 square feet piece of property or area. This permit was previously issued to USCOC of Hawaii 3, Inc., also doing business as United States Cellular. Since then the Applicant has taken over the permit, Special Permit. The Applicant is requesting that three conditions be amended. Condition No. 2, and Condition No. 2 basically states, and IÓll just highlight the area that is being requested to be amended ÐThe tree shall be planted at varying heights along the ridge line and upper elevation facing Maulua Gulch.Ñ Condition No. 3 talks about receiving Final Plan Approval for the existing tower site, and also indicated in the condition was that thereÓll be proposed tree planting shown on the site plan. And Condition No. 4 basically states that ÐPrior to securing Final Plan Approval, a tree planting plan shall be submitted to the Planning Department for review.Ñ The Applicant is requesting amendments to these three conditions relative to the tree planting along the ridge line. We did receive, thereÓs a long history behind this permit; and it has gone to the Board of Appeals, and it has gone to the courts. And all of that is indicated in your Background Report, so I would dispense with going over those specifics. The permit was approved in October of 2000. We received a Petit Contested Case Hearing and that was submitted by George Robertso property owner. Mr. RobertsonÓs property is located in this general configuration adjacent to the subject property. Are there any questions at t GALDONES:Commissioners, before we proceed any further, we have received a letter from our Director, Mr. Yuen, excusing, disqualifying himself from any action that is to be taken by the Planning Commission. As such, the Deputy Planning Director will be sitting in his absence and we are awaiting for his arrival. So I would like to call for a short recess until his arrival. Also, Ms. OÓToole would like to make a statement in reference to her involvement in this particular case. OÓTOOLE:Yes, I just wanted to let the Commissioners know that when the permit was issued, I had represented the Director Virginia Golds Contested Case Hearing; and her position was in favor of the permit which, I guess, is the same as the CommissionÓs. The permit was granted. So, I donÓt see a problem in my 2 advising you. But IÓm disclosing it so that if there are any objections, they can be made before we get into the proceeding. GALDONES:Thank you, Ms. OÓToole. So we stand recessed till arrival of the Deputy Planning Director. KUBOTA:Since weÓre going to be waiting, anyway, may I ask our Co Counsel a question? GALDONES:You may. KUBOTA:It has to do with this letter from Mr. Yuen that we have. And I guess heÓs writing it as a private citizen and, I guess, thatÓs his right to do that. However, I mean, weÓve been through this conflict of interest kind of stuff. Where does it begin and where does it end? I mean, in, just a while ago in another application, I was asked to leave the room, leave the seat because of a conflict of interest; and now we have a Director, who was a party to, what is it, a Contested Case, now serving as our Director testifying for or against this application or this request. And I just want your, I want you to tell me where do you draw the line on conflicts? OÓTOOLE:Well, I think the conflict would arise if he used his position or took action, took any official action as Director, on this particular application. And as I understand it he has not and does not intend to use his position or take an official position. So for him to want to make a statement as a member of problem with that. KUBOTA:So, in other words, that opens the door to anybody who relinquishes his or her position or wants to testify being free to do that even if the interest is there? How do you erase the interest in it other than the position? How do you separate that? OÓTOOLE:The interest, meaning -. KUBOTA:His interest in not having the power there or his interest in having the mitigation there. His interest doesnÓt diminish because he vacates the seat. I mean -. OÓTOOLE:No, -. KUBOTA:Okay. OÓTOOLE:But his interest, you know, pre-existed him becoming the Planning Director. He was a party to the Contested Case Hearing. So IÓm saying that the ethics violation would be him, as Director, doing anything or, you know, trying to do anything, or influencing, or voting, or sitting up here. GALDONES:Commissioner Kubota? 3 KUBOTA:Yes, okay. GALDONES:Any further discussion? KUBOTA:No, but Jeff, Jeff wants to -. GALDONES:Okay. Commissioner McCall? MCCALL:Yeah, I just want to say that, if my understanding is correct, that, Flo, I mean, you could like, say, this morning, you recused yourself or that you, before, you had recused yourself from being on any decision-making as far as the permit before us. You could have signed up as a member of the audience to testify on that matter. KUBOTA:Yes, IÓm getting that information now. I didnÓt know tha But that means that anybody can do it? MCCALL:Yeah, I mean -. KUBOTA:Norm could do it, Sharon could do it, if they wanted to testify, right? That means anybody can go and testify, then, that means, right? MCCALL:Yeah, as long as they werenÓt working in their official capacity. KUBOTA:Okay. Thank you. OÓTOOLE:Well, I donÓt know. And I think, well, I think itÓs som different because I donÓt think Commissioners are supposed to relinquish their seat and then go start testifying when theyÓre supposed to be up here voting. You know, I think thatÓs carrying it too far. Mr. Yuen is there to advise you. HeÓs not a member of this Commission. KUBOTA:But isnÓt it the same thing when I recused myself? IÓm s myself from the Commission. IsnÓt that the purpose of a recusal? IÓm separating it and say I will not participate as a body member. So how, see, thatÓ ThatÓs why I posed this question. Not because I donÓt want Mr. -. ItÓs not that I donÓt want Mr. Yuen to testify. But I get confused about the conflict of interest issue that is raised and sometimes rigidly enforced and sometimes not; and I want to know where the line is. And maybe IÓm not legally, in trying, so I canÓt see it. But maybe you can explain it to me. We have many lawyers in here who can explain it to me in plain language. You know, I mean, give me examples of when. Because my case, I donÓt see any difference at this point. OÓTOOLE:Well, I think, you know, we had discussed your, whether you had a conflict of interest or not, and I believe I thought you did not. But you voluntarily 4 recused yourself because, as you say, you did not want the issue to be raised or you didnÓt want a taint on the proceedings. And that was, you know, perfectly within your rights but -. KUBOTA:No, itÓs not that I didnÓt want the issue raised. I wasnÓt afraid of the issue being raised. I just didnÓt want to prolong it by distracted arguments of whether I am or I am not in conflict. So I figured, well, leave it clean, leave the application clean, IÓll remove myself. Okay? OÓTOOLE:Well, okay. KUBOTA:So, all right. OÓTOOLE:But that was a voluntary action. KUBOTA:Yes, it was, it was. OÓTOOLE:Yeah. And the only other thing I can suggest is if you want some kind of statement from the Board of Ethics, which reviews these an informal advisory opinion saying would it be proper for a Commissioner, I mean, thatÓs the example youÓre saying to step down and start testifying on something that is proceeding before the Commission. And I think thatÓs a very different situation from someone whoÓs not a member of the Commission just saying IÓm not going to, you know, act as Planning Director. You see what IÓm saying? You are all people -. KUBOTA:No, I donÓt -. ThatÓs where I donÓt see where youÓre -. OÓTOOLE:He cannot vote, he has no authority whatsoever on this permit. KUBOTA:Okay, okay. But heÓs a Planning Director. OÓTOOLE:Yes, he is, I understand that. But heÓs not a voting, he is not someone whoÓs going to take action on the, on whatever is pending here. KUBOTA:Okay, okay. There, again, see, I say, IÓm going to quit after this because youÓre going to accuse me of cross-examination again. B myself or when anyone recuses him or herself, she is or he is taking himself out of the Commission for that moment, for that particular thing. So, you know, why canÓt the same privilege be accorded to the person who is recused as, Òcause youÓre not going to vote on it anyway. YouÓve stated that youÓre not going to vote, so whatÓs the difference? GALDONES:Well, we have heard both sides of the argument and if there is still some doubt, at least you can clarify it then. I think the suggestion by counsel to take it to the Board of Ethics is proper for clarification. Okay. Any further discussion? Okay, our Deputy Director, Planning Director, has arrived and we will proceed. Mr. Takemoto, so 5 far weÓve had Norman to explain the Background Report and the purpose of the application, and we are going into discussion. Norman, you have the chair. HAYASHI:Thank you, Mr. Chair. IÓve nothing further to add to my presentation that I just gave on this. We do have a Contested, Petition for Standing for Contested Case Hearing that I think the Commission should deal with. GALDONES:Thank you, Norman. Commissioners, do you have any questions of Norman before I proceed? If none, there are three individuals who have testified, who signed up to testify - Dwight Vincent, George Robertson and Chr their testimony and then act upon the Petition for a Contested Case Hearing. Commissioner Graham? GRAHAM:I just wanted, isnÓt it our usual procedure to hear from the Applicant after we hear from the Norman and then go to the public testimony -? GALDONES:ThatÓs correct. GRAHAM:Or is the Applicant here, are we going to hear from the Applicant, or -? GALDONES:I will be asking for the Applicant to come forward. Thank you for the reminder. Is the Applicant or representative present? Please step forward? LEONG:Good afternoon, Mr. Chair, Members of the Commission. GALDONES:MaÓam, could you please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Hawaii County Planning Commission? LEONG:Yes, I do. GALDONES:Will you please state your name, your residence address LEONG:My name is Donna Leong. My address is at Cades Schutte LL 1000 Bishop Street, Honolulu, Hawaii 96813. I am the attorney representing U.S. Cellular. GALDONES:You have received a copy of the Background Report? LEONG:Yes, I have. GALDONES:We do not have a recommendation because there is a Petition for a Contested Case Hearing. Do you have any comments on the Background Report? 6 LEONG:I just wanted to highlight a couple of the points that are in the Background Report that Mr. Hayashi did not mention in his presentation today. Just that after the Special Permit was granted in 2000, we did, in accordance with this CommissionÓs decision, submit a tree planting plan to the Planning Department for approval. The Planning Department asked us to obtain the authorization of the fee owners of the subject property, which, as you see from my petition, we did, whereupon we were told by one of the fee owners, Mr. Yamanaka, that they would not be signing it until we negotiated a further amendment to the lease. I think the negotiations since 2000 are set forth in my petition. And unless the Commission would like me to summarize them for you, I think the details are in there about how we have not been successful for the past three years in negotiating an amendment to the lease. So I just wanted to let you know that thatÓs where we were in following up with the Special Permit condition. And thatÓs why weÓre before the board, the Commission today asking for amendment to those, the tree-planting conditions, because we have not been able to negotiate a lease amendment. IÓd just also like to mention that the tree-planting plan that we submitted to the Planning Department involves the planting of trees, as shown on the plan that I submitted, on property that is not within the 6,100 square feet covered by the license currently in existence between the fee owners and originally with US Cellular, and now AT&T Wireless has taken over the license for that tower. And thereÓs no way to plant trees within that, this, the fenced area of the tower itself, which is only 3,600 square feet. And thatÓs whatÓs requiring the lease amendment, because the trees are actually outside of the fenced area for the tower. GALDONES:Commissioners, are there any question of Ms. Leong? Commissioner Graham? GRAHAM:Excuse me for speaking so much today. Ms. Leong, it seem whatÓs stopping the condition from being met is the inability of you folks and Yamanaka to come to a reasonable agreement for the tree planting; and thatÓs why youÓre back to us for relief from this condition. I did notice when I read kind of at the last page of our exhibits here, itÓs called Exhibit C, a letter from Vern Yamanaka thatÓs dated st October 21, and kind of in the effort of trying to understand if thereÓs either party being sort of unreasonable in this. He does begin his letter saying, ÐThe lease of the property was based upon representation of a community need and the promis improvements,Ñ and he puts in Ð(road and power up to the site).Ñ And then later, after one more sentence, he says, ÐThe promised infrastructure was never built.Ñ I just wanted, can you give us some background on the accurateness of what heÓs there, in fact, infrastructure promise that has not been built and which would presumably contribute to his less than responsive attitude to your offer? LEONG:I just have a few things to say about that. First of all, I was not the attorney for U.S. Cellular at the time that they negotiated the lease or the license for this 7 tower site, so I was not involved in those license negotiations; and I wouldnÓt be able to testify to that on personal knowledge. I would say that I have had discussions with U.S. Cellular representatives, and I donÓt believe that they thi of the lease. I know there were discussions about road and electricity, but I donÓt think that they would agree with Mr. YamanakaÓs statements in his letter. I think there have been further discussions about those kinds of improvements, but to my knowledge, well, up to the point when U.S. Cellular owned the tower, there had not been any definitive agreement on it. And I donÓt know whether there had been subsequent discussions with AT&T Wireless, just because IÓm not privy to them. As an attorney for lessees and landlords, a lot of times something as important as that should have been in the license, if that were, in fact, the agreement of the parties. GRAHAM:I see. And the way I interpret that is itÓs hard for you to be sure what kind of verbal understanding might have been in place; but given the fact that itÓs very important to this situation, if there were verbal understanding, you would expect it to be in the license. LEONG:If there had been an agreement, it would have been in the license. GRAHAM:Thank you. LEONG:Thank you. GALDONES:Commissioners, any further questions? Hearing none, Commissioners, what IÓd like to do at this time is to act upon the Petition for Standing in a Contested Case Hearing, which was submitted by Mr. George H. R purpose in doing that is so that those who have signed up to testify can decide whether they will testify at this hearing or reserve their comments for the Contested Case Hearing, if there is one thatÓs approved by the Commissioners. So if thereÓs no objection to the process, Commissioners, you have before you a Petition that was submitted by Mr. Robertson -. Norman, everything in order, the timeframe has been met and the fees thatÓs necessary to go along with the Petition is in order? HAYASHI:We did receive the Petition in the Kona office at 4:30 last week Friday, 7 days prior to today. So I guess it was filed within a timely manner. As far as the filing fee, we also received the filing fee for that. GALDONES:Okay. Mr. Robertson, may I call upon you? Mr. Robertson, could you use the microphone? Please raise your right hand? Do you swear or affirm to tell the truth on this matter now before Hawaii County Planning Commission? ROBERTSON:Yes, I do. GALDONES:Could you please state your name and your residence address? 8 ROBERTSON:George H. Robertson, Post Office Box 44490, Kawaihae 96743. GALDONES:Mr. Robertson, before we take any action on your Petition, is there anything that you would like to share with the Commissioners? ROBERTSON:No. IÓm hopeful that Ms. Leong will be able to resolve this without our having to go to a Contested Case. We spoke prior to the meeting today and there is a possibility that that might happen, that they can work out an agreement with Mr. Yamanaka. And if thatÓs the case and that the tree-planting can proceed, that would satisfy me, and IÓd be happy not to have to pursue the Contested Case. GALDONES:Thank you. Commissioners, are there any question of Mr. Robertson? Hearing none, Commissioners, before you is the Petition for Standing. The wishes of the Commissioners? Commissioner Kubota? KUBOTA:Mr. Chairman, I move that Mr. George Robertson be given standing in Special Permit Application 1084, amendment to Conditions No. 2, 3 and 4. FUJIKAWA:I second it. GALDONES:It has been moved by Commissioner Kubota and seconded b Commissioner Fujikawa that the Petition for Standing in Contested Case Hearing submitted by Mr. George H. Robertson be approved. Any discussio Graham? GRAHAM:Just a question for our counsel, please? I think we, I think the feeling is that being an adjoining landowner, you know, we presume he will have standing. But, in fact, we havenÓt heard anything on the record as to how he is affected by or injured, you know, by this situation. So IÓm just wondering if we should have something put on the record before we vote on this standing with no evidence, except the fact that heÓs an adjoining landowner. LEONG:Mr. Chair? IÓm sorry. GALDONES:Excuse me, Ms. Leong. IÓll give the counsel a chance to respond to that. OÓTOOLE:Well, I think that the adjoining landowner, itÓs clearly distinguished from that of the general public, adjoining landowner, you know. As you say, I think we generally accept that. But if you want more det And then, I guess, usually we also ask if thereÓs objections from the other party. KUBOTA:Mr. Chairman? GALDONES:Ms. Kubota, could you hang on. IÓd like to recognize Ms. Leong first. 9 KUBOTA:Okay. LEONG:Thank you. I just wanted to try to save time here and just tell you that we do not have an objection to Mr. RobertsonÓs intervention, as he is an adjoining landowner. GALDONES:Thank you. LEONG:Thank you. GALDONES:Commissioner Kubota? KUBOTA:And I just took it for granted. IÓm sorry, Mr., Commissioner Graham. We went through this whole scenario before so, you know, IÓm old to this particular application, so I just forgot that there are some people that did come on board later. Sorry about that. And he is clearly an adjoining landowner whose view is impaired, or so itÓs claimed. GALDONES:Commissioner McCall? MCCALL:Yeah, just a question on procedure. If we grant standing, are we automatically, do we need to go to a Contested Case, or can we then, is it possible to defer action if the two, if Applicant and the, and if theyÓre interested in trying to resolve it? I mean, or, you know, if theyÓre interested in resolving it without a Contested Case, are we shooting that down by granting standing? GALDONES:In my humble opinion, whatever itÓs worth, that we still need to address the Petition that has been forwarded before the Planning Commission. And if the parties are able to resolve the issue prior to the Contested Case hearing, then that is the purview of both parties. But I will rule right now that we need to act on the Petition, unless IÓm overruled. MCCALL:Okay. GALDONES:Any further discussion? Commissioner Fujikawa? FUJIKAWA:I just think, notification on what Commissioner Kubota stated, I believe thereÓs four of us who were involved in that particular first hearing thatÓs, weÓre still here. GALDONES:Okay. So noted. Okay, hearing no discussion. Norman, motion? FUJIMOTO:Commissioner Kubota? 10 KUBOTA:Aye. FUKIMOTO:Commissioner Fujikawa? FUJIKAWA:Aye. FUJIMOTO:Commissioner Graham? GRAHAM:Aye. FUJIMOTO:Commissioner McCall? MCCALL:Aye. FUJIMOTO:Commissioner Mina? MINA:Aye. FUJIMOTO:Commissioner Thibadeau? THIBADEAU:Aye. FUJIMOTO:Mr. Chairman? GALDONES:Aye. FUJIMOTO:Mr. Chairman, the motion passes. GALDONES:Thank you, Phyllis. Mr. Robertson, you have been grant standing for a Contested Case. I will now address the sign-up sheet of members from the public who have signed up to testify. Dwight Vincent, present? Seeing that he is not here, we shall move on to the next -. Mr. Robertson, do you wish to testify or will you hold your comments for the Contested Case Hearing? ROBERTSON:IÓll hold my comments. GALDONES:So noted. Mr. Yuen? LEONG:Mr. Chair, I donÓt know if itÓs appropriate at this point to note our objection to Mr. Yuen testifying as a member of the general public on the grounds that he has a conflict of interest as the Planning Director of the County of Hawaii. And I would ask the Commission to defer consideration of his testimony until it obtains an opinion from the Board of Ethics that there is no conflict of interest and that he is permitted to testify. 11 GALDONES:Your objection is so noted. Let me confer with counsel. One moment. OÓTOOLE:Mr. Yuen, do you intend to testify now or at the Contest GALDONES:Mr. Yuen? YUEN:Good afternoon. I do want to make it clear that anything I as a private citizen and not as the Planning Director. I am currently on vacation time at this moment. In the interest, I understand that the Commission is not going to be acting this afternoon. It has been a long day and in the interest of not keeping you here longer than necessary, IÓve submitted a letter and I will withhold any testimony. GALDONES:Okay. Thank you. That being the case then, I believe a ruling is not necessary on your request, Ms. Leong, since he is not going to be testifying at this time. LEONG:I suppose it might be necessary if we actually have a Contested Case Hearing, but perhaps only before that hearing. GALDONES:So your objection will be noted and the ruling will be made before the Contested Case Hearing is heard so that Mr. Yuen will know whether he will be allowed or will not be allowed to testify. OÓTOOLE:Okay. I can point out that any person can petition the Ethics Board for a formal advisory opinion. So whoever is concerned about that issue can ask for an opinion. Ms. Leong could ask, Mr. Yuen could ask, any Commissioner could ask, yes. GALDONES:For procedural matter then, Ms. Leong, will you be subm objection to the, or obtain an opinion from the Ethics Board? LEONG:All right. Thank you, Mr. Chair. GALDONES:Okay, so noted. Being that there wonÓt be any further testifiers on this subject matter and there is, the Petition for Contested Case has been approved by the Planning Commission, I would be closing this hearing. But I will give Ms. Leong a last opportunity for any comments. LEONG:Thank you, Mr. Chair. Actually, what I would like to do is to set the Contested Case Hearing schedule, if we could today. GALDONES:Commissioners, in setting up the Contested Case Hearing, putting up a schedule, we first must decide whether the Commissioners wi 12 Contested Case or we will be farming it out to a hearings office the Commissioners? Commissioner Fujikawa? FUJIKAWA:IÓll make a motion to farm it out being that we are the Commission, thereÓs four of us left here whoÓs aware of the case, and at the time the Intervenor was, happened to be our Director, so letÓs have a third party involved. GALDONES:ThereÓs a motion by Commissioner Fujikawa to farm out t Contested Case Hearing. Is there a second? MINA:Second. GALDONES:It has been moved by Commissioner Fujikawa and seconded by Commissioner Mina that the Contested Case Hearing be farmed out to a hearings officer. Are there any further discussions on the matter? Hearing none, Norman, a vote on the motion? HAYASHI:Commissioner Fujikawa? FUJIKAWA:Aye. HAYASHI:Commissioner Mina? MINA:Aye. HAYASHI:Commissioner Thibadeau? THIBADEAU:Aye. HAYASHI:Commissioner Graham? GRAHAM:Aye. HAYASHI:Commissioner Kubota? KUBOTA:Aye. HAYASHI:Commissioner McCall? MCCALL:Aye. HAYASHI:Chair Galdones? GALDONES:Aye. HAYASHI:Chair, motion carries. 13 GALDONES:Thank you, Norman. Ms. Leong, then we will need to sec hearings officer and work with his calendar or her calendar. LEONG:Thank you, Mr. Chair. And thank you very much, Commission for your time in this matter. GALDONES:YouÓre welcome, Ms. Leong. The discussion ended at 3:25 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 14 15