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HomeMy WebLinkAbout2008-11-24 TCROWN PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT NOVEMBER 24, 2008 CROWN CASTLE INTERNATIONAL A regularly advertised hearing on the application of (SPP 1191) was called to order at 11:40 a.m. in the Hapuna Beach Prince Hotel, Hau Room, 62- 100 Kaunaoa Drive, Kohala Coast, Hawaii, with Chairman Rodney Watanabe presiding. PRESENT: Rodney Watanabe ABSENT & EXCUSED: Lani Bowman C. Kimo Alameda (left at 2:00 p.m.) Shelly Ogata Takashi Domingo Frederic Housel Andrew Iwashita Rell Woodward Ivan Torigoe, Deputy Corporation Counsel  Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager OgxkkhrEtihlnsn+Rs`eeOk`mmdq Jeff Darrow, Staff Planner Maija Cottle, Staff Planner And seven people from the public in attendance APPLICANT: CROWN CASTLE INTERNATIONAL (SPP 1191) Amendment to Special Permit No. 1191 to allow the replacement of an existing 80-foot monopole with a 120-foot steel monopole.The request would also require the amendment of Condition 5 (height of tower). The property is located along the north side (makai) of Kynnersley Road, approximately 1.3 miles south of its intersection with Akoni Pule Highway (Highway 270), Honomakau, North Kohala, Hawaii, TMK: 5-4-2: por 2. WATANABE: Agenda Item No. 4 is Crown Castle International. It’s Special Permit No. 1191. This is a request to allow replacement of an existing 80-foot monopole in Hawi. We do have three people from the public who signed up to testify, and we do have a timely filing for standing in a contested case hearing by – who is the party – Christopher McCullough. Maija, would you give us the rundown on that? COTTLE: An overview? WATANABE: Yes. COTTLE: Sure. This is a request to amend Condition No. 5, which has to do with tower height, to allow the replacement of an existing 80-foot wood monopole with a 120-foot EXHIBIT D 1 steel monopole. The original permit allowed replacement of the 80-foot wood monopole with an 80-foot steel monopole; so they are requesting an additional 40 feet. The property is located in Hawi off of Kynnersley Road. And on the screen here, Kynnersley Road runs in a north-south direction, and as it loops to the west, the property is outlined in yellow. And the pole location is – there is a little red dot that shows the location – just north of Kynnersley Road. You can see that a little bit better on this site plan. Kynnersley Road runs along the bottom of the site. There is a dirt road that’s used to access the site, the lease area. And the monopole, the existing pole is right in the middle of their lease area here. I’m going to show you four pictures that were submitted by the applicant: Two of them are photos of the existing monopole, and two of them are photo simulations which show what the proposed 120-foot monopole would look like. The first two photos were taken from this location, looking northbound at the pole along Kynnersley Road. And then the second two photos are going to be off of this street here, looking in an easterly direction towards the site. So this is the first photo of the existing pole, and you can see the antennas just above the tree line here. Again, this is Kynnersley Road here. You are looking in an easterly direction. And then this is the photo simulation showing the proposed pole, and again this is the tree line here and the proposed pole would be above the tree line. And this is a view looking from Kaauhuhu Road, and you can barely make out the antennas here on the existing pole. And then the proposed monopole is, again this is the same tree line here as before, but you can see the pole well above the tree line. So the Planning Director is recommending approval with the amended conditions shown in the recommendation of the Special Permit application. WATANABE: Thank you, Maija. COTTLE: You are welcome. WATANABE: Fellow Commissioners, do we have any questions of staff? It doesn’t seem like we have any. Before I call -. Yes, you have questions, Mr. Iwashita? IWASHITA: Yeah. WATANABE: Yes, go ahead. IWASHITA: Was there any consideration given to, you know, as far as disguising the extension, you know, to look like a tree as opposed to what the depiction is? COTTLE: No, that wasn’t a requirement of the Department. WATANABE: I believe -. Didn’t you, Mr. Yuen, didn’t you specify colors and that the guy cables would be wrapped in a dark green? Is that correct? COTTLE: Condition No. 6 does say that the guy wires are to be painted green -. EXHIBIT D 2 WATANABE: Wrapped in a dark green vinyl. Is that correct? COTTLE: That’s correct. WATANABE: And these were supposed to, I believe the antennas were supposed to be, and the tower, supposed to be in a dark brown or something to that effect? I thought I read something -. COTTLE: I believe the original permit required the tower to be brown, the wood tower, and then the replacement tower would also be brown. WATANABE: Okay. And that would be pretty much the extent. Is that correct? COTTLE: Yes. HOUSEL: Does that include the elements, the antenna? COTTLE: I’m sorry, does that include what? HOUSEL: The color requirement, does that include the elements of the antenna or just the tower itself? COTTLE: Condition 3, it says the tower and structures shall be painted a dark brown to blend in with the surrounding landscape; so that would be the antennas, too. WATANABE: I remember reading something to that effect. Okay. Do we have any further questions of staff? Okay, since we are up against a time constraint, and as I mentioned earlier, we do have three individuals from the public who signed up to testify, if it’s all right, I’d like to take those testifiers from the public first. So I’d like to call off Ralph Blancato, Sallie Wolz-McCullough – yes, please – and Danette Mettler. Well, Danette, I’ve already sworn you in, so I don’t need to swear you in. But for the two of you, would you raise your right hand, please, so that I can swear you in? Do you swear or affirm to tell the truth now before the Planning Commission? TESTIFIERS: Yes, I do. WATANABE: Would you all speak into the mike, please? Sir, Ralph, I guess you are going to begin. Before you begin your testimony, could you state your name and address for the record? BLANCATO: My name is Ralph Blancato, P. O. Box 1135, Kapaau, 55-2279 Kynnersley Road. I am an adjacent property owner to the facility. WATANABE: Okay, thank you. You may begin your testimony then. EXHIBIT D 3 BLANCATO: Thank you. Thank you very much for hearing our testimony today. I appreciate the Commission’s time. My residence is 300 feet away from this facility. I was not notified by Crown Castle that they were expanding their, when they were expanding their facility initially. When they initially came into our neighborhood, it was just one pole and Verizon was the only carrier, and we really had no problems with that. Then they had an amendment to increase the size of the pole and offer more providers to the facility, which is common practices – I’m learning. But currently I represent some other people who couldn’t be here today. I have a couple of letters that I’ll read as written testimony, and photos of the impingement of the viewplane of other residences in the area. Let’s see. I’ve resided in the area for twelve years. I have a small rental unit there that a renter had to leave because she had spells of dizziness and sleeplessness and she attributed that to the cell phone towers. I know that the Commission can’t make any recommendations because of health, but I did some research and there are stacks of information that speak to the hazards of cell phone towers. I’ve got one quickly here that I’d like to read. I know you guys want to break for lunch and we want to get out here, too, but I think it’s important that this be addressed as well. “Biological effects from exposure to low level radio frequency microwave radiation have been recognized as markers of adverse health effects. Internationally acknowledged experts have shown that radio frequency microwave radiation transmissions of the type used in digital cellular antennas and phones can have critical effects on cell cultures, animals and humans. Cell phone and cell phone tower radiation stresses our cells, releasing DNA-damaging free radicals and stress proteins that can mitigate through the open blood brain barrier and cause degenerative damage in the brain – a biophysicist and professor emeritus of Harvard University. Because stress proteins are involved in a progression of a number of diseases, heavy daily cell phone use could lead to greater incidents of disorders such as Alzheimer’s and cancer.” So not to bore you with the stacks of medical information about the dangers – and we all use cell phones, I use them – but this facility is very close to our residences. Initially when they started out, there was cow pastures; it was a very rural area. Now it’s become a neighborhood and there are multiple houses that are very close to this tower and this facility. Let’s see. As I said, I was not notified by Crown Castle; they neglected to notice myself or the McCulloughs who are our neighbor that they wanted to do an amendment. It does impact my viewplane. I’ve called Crown Castle numerous times to request an engineer to come out to show me with a meter that this tower is not in fact emitting excessive radio frequency waves, and they’ve neglected to do that. My renter who moved away had purchased a meter, and showed me that all around our area there were excessive levels of radio frequency waves in our particular area. So I am just going on the record: If the Planning Commission and the Planning Department are truly stewards of the aina and represent the public it serves, then not only should Crown Castle’s amendment to their Special Permit No. 1191 be denied, but I am also advocating a relocation of Crown Castle’s facility to another less-populated area. So that’s it. Thank you for your time. EXHIBIT D 4 WATANABE: Thank you. Yes, Mr. Domingo? DOMINGO: Were you and your neighbor, the McCulloughs, the only ones that were not notified of this hearing? BLANCATO: I don’t know who was and who was not notified. All I know, the McCulloughs are close neighbors to mine and we are both adjacent to this facility. I believe, I did talk to a representative of the company who is the consultant for Crown Castle, and they said they sent out 140 letters. I don’t know who they sent the letters to, but they didn’t send any letters to us. And we are 300 feet away from this facility, and should have been notified by law or by whatever requirement. WATANABE: By rule, yeah, there’s a 500-foot notice -. DOMINGO: It is a requirement. Have you – you mentioned that you had a friend who took readings of the effects of the wave signals – have you seen the meter and its actual recordation of the impact? BLANCATO: Yes. Yeah, she gave me the, my renter who moved out purchased a meter, and she gave it to me one day and I spent some time walking around the neighborhood. As you go down Kynnersley Road and leave the area, then the radio frequency waves go down; as you’re walking around my property and the McCulloughs’ property and down Kynnersley Road, the frequency went up. It wasn’t a very, you know, with all due respect, it wasn’t a very expensive meter, and I’m no expert. So this is why I asked Crown Castle to send a representative out, or an engineer, that could, you know, allay our concerns and show us a correct meter that there were no excessive readings in our area. DOMINGO: Were there fluctuations or pulsations of the signal that were, where it had been televised by those antennas? Were there pulsations or fluctuations of your meter? BLANCATO: No, it was just, you turn it on and the thing would just gradually go up, you know, to a certain level, and it would pulsate somewhat but it stayed in excessive levels. One other thing I did forget to mention is that on quiet evenings – most of the time we are blessed with ka makani, the winds of Kohala – but on quiet evenings the facility has grown to a point where we hear the hum of fans running in the facility and there is generators that go on when there is loss of power to the generators, then these generators kick on. And it’s, you know, disturbing to those of us who live in a country and enjoy peace and quiet. WATANABE: Any further questions? Mr. Alameda? ALAMEDA: Thank you, Mr. Chair. You mentioned your tenant having some physiological effects. Have you experienced any physiological effects yourself? BLANCATO: Myself, I have not, you know, other than, you know, getting older and having stiffer joints and that kind of thing and loss of hearing. But she came and started to experience these things when she rented our place, and she didn’t know the cell phone tower was EXHIBIT D 5 right down the road. So she shared her, you know, oh, I can’t sleep and I’m getting dizzy. And then she found the cell phone tower down the road, and started accessing, you know, this information that may or may not produce unhealthy effects. ALAMEDA: Okay, thank you. BLANCATO: But I can leave some stuff off the Internet for you folks to peruse, if anybody’s interested. WATANABE: Mr. Housel? HOUSEL: Question. Looking at the aerial photo, where is your property? BLANCATO: I’m right -. Is there some way I can point to it? Oh, here is a map for you guys. HOUSEL: Okay. BLANCATO: But my property is adjacent to the, yeah, there is the site location and, yeah, my property is right there, and McCulloughs’ are right there, and this is about 300 feet. And from my property I can look and see, you know, I can see the tower. HOUSEL: So you are mauka of the tower, is that correct? BLANCATO: I’m makai of the tower. HOUSEL: Makai. BLANCATO: Yeah. HOUSEL: Okay, makai direction. BLANCATO: And then I’ve got two letters from people who are mauka, one in particular who looks right down onto the tower. HOUSEL: Now, your rental property, is that on your property also? BLANCATO: It is, correct. HOUSEL: So the person, your renter, was in the same vicinity, is that correct? BLANCATO: Correct. HOUSEL: Okay, thank you. BLANCATO: Thank you. EXHIBIT D 6 WATANABE: Any further questions of -? Yes, Mr. Iwashita? IWASHITA: What’s your Tax Map Key number? BLANCATO: My Tax Key is (3) 5-5-2:6-0001. Oh, I’m sorry, I’m 2; the McCulloughs are 1. We are (3) 5-5-2:6-0002. IWASHITA: Three-five-five -. BLANCATO: Two: six-two. IWASHITA: Two: six-two. Just for the record, looking at the list of Tax Map Key landowners that the applicant submitted, that Tax Map Key is not on this list. So that confirms that why he did not get a notice. WATANABE: Any further questions? IWASHITA: Mr. Chair. WATANABE: Yes? IWASHITA: I guess I have a concern that -. WATANABE: Proper notice? IWASHITA: Yeah, that we haven’t seen adequate notice in this case. WATANABE: Yeah, it’s noted on the record we do have a timely filing for a contested case also, so -. IWASHITA: Well, I guess my concern is that it’s clear that at least one adjacent owner entitled to notice did not get it. And until that’s cleared up, I don’t think we have proper notice to proceed at all on this matter. HAYASHI: Mr. Chair, if I may? WATANABE: Yes, Mr. Hayashi? HAYASHI: Just for Commissioners’ information, the gentleman was notified; a separate notice was sent to the gentleman after -. WATANABE: Mr. Blancato? HAYASHI: We were informed -. EXHIBIT D 7 WATANABE: That he wasn’t notified -. HAYASHI: That he didn’t receive the notice. And the notice went out on November th 17. WATANABE: Okay. For the record -. BLANCATO: The notification went out the day – I understood that we were only allowed a week to file a contested case – and the notification went out that day. We had to roll into Kona and file the contested case hearing. That’s when we were notified; one week prior to this meeting was when the notification did go out. WATANABE: Okay. With all due respect, Mr. Blancato, a timely application for a contested case hearing has been filed with the $100 fee, etc. and that will be considered later. So the important part for us to proceed is to establish that you were notified in a timely fashion. And I believe that condition has been satisfied, yeah? BLANCATO: Is one week considered a timely fashion? IWASHITA: Mr. Chair, I guess my concern is that, I don’t know if there was a check on whether there were any other proximate owners that were entitled to notice and did not receive notice, so that -. WATANABE: According to what I can determine so far, it seems that Ms. McCullough also indicated she wasn’t noticed, but she is also the one that filed the contested case. IWASHITA: I understand that, but if it’s -. WATANABE: What I’m trying to get to is Danette Mettler, if I might -. Mr. Hayashi? HAYASHI: Yes, as far as the notice requirements, once an applicant submits their application, they have ten days after submitting the application to the Planning Department to notify the surrounding property owners; that will be the first notice. Once the hearing date has been established, the applicant is again required to send a second notice to the surrounding property owners within ten days after – excuse me. WATANABE: Not ten days, yeah? HAYASHI: After receiving notice from the Director of the date of the scheduled hearing but not less than ten days prior to the hearing, they need to notify the property owners. So apparently the gentleman received it less than ten days of the hearing. WATANABE: So we have defect in the notice, the second notice. EXHIBIT D 8 HAYASHI: I guess it was an oversight on the applicant’s part. And normally the Department does check the surrounding property owners’ notification letter and who did they mail the notices to. But it was also an oversight on our part, and we apologize for that. WATANABE: Okay, no problem. Thank you for the information. I have a question for Counsel. Proper notice should be established in order for the hearing to continue; however, I don’t believe we can preclude anyone from the public to testify. I’m not sure what Danette Mettler wants to testify about. And my follow-up question to that is, would we have to, because of the defective notice, continue this until notice is perfected before we even take a vote on whether to grant standing to the intervenor? TORIGOE: Well, you have somebody who did file a timely and valid request for intervention, and I think you can take that up. But the question is: What about the guy, Mr. Blancato, who did not apparently get timely notice? And basically, you know, I think we need to offer him the opportunity to also file for a contested case and be a party, if that’s what he would like to do. BLANCATO: Can I comment? WATANABE: Sure, Mr. -. BLANCATO: Yeah, you know, rather than waste the Commission’s time and our time, I’m just bringing this up as a point of fact that we weren’t in fact noticed. The McCulloughs did get a contested case in in time. And we are here today to discuss the matter. Me, personally, I don’t need to get another notification and come here in another eight months and present this all over again. My main issue is the fact that it’s a visual impairment to my right to enjoy my property, and that there is noise impacts to us as a neighborhood. WATANABE: Okay. I can appreciate that; however, you did bring it up and it’s on the record now, so you will probably receive another notice -. BLANCATO: I have received the notice. WATANABE: And more than likely it will be continued just to -. BLANCATO: I have received the notice. TORIGOE: Well, Mr. Chair, I guess -. You know, Mr. Blancato is here; if he understands what his rights would be, if he had gotten timely notice, he would have had the opportunity to file a request just as the McCulloughs did for -. BLANCATO: Well, the McCulloughs are neighbors. And we communicated my feeling was that if the McCulloughs had filed the contested case, then at least the contested case was filed, I didn’t feel like I needed to file a contested case as well. EXHIBIT D 9 TORIGOE: Okay, so basically if you feel that you do not need to or want to file for a contested case, and if you are willing to basically say on the record that you have no problem with this matter going forward without your filing for a contested case, and you’re basically waving that right, and you’re content to come and testify as a member of the public – and you can also be called as a witness by the McCulloughs, if we go into a formal contested case – if all that is on the record and you are okay with the matter going forward on that basis, then you can go forward. But again, bare in mind, though, the McCulloughs have filed their request to have a contested case, but they have not yet been admitted as a party. And that is the next thing that the Commission is going to take up. So you may want to reserve your right, you know. I can’t say at this moment that the McCulloughs will in fact be allowed to intervene as parties; that’s a decision that the Commission has to make. WATANABE: Okay, to make a decision simpler for him, could he go on record giving up that right provided the McCulloughs were granted standing? TORIGOE: Right. Yeah, he could do that. WATANABE: So in other words, if you want these hearings to continue now, you can say, I wave my right of timely notice and the ability to file as an intervenor in a contested case hearing provided the McCulloughs are granted standing as an intervenor. BLANCATO: As a contested case applicant. Yeah, I do. And that works. And the McCulloughs can call -. WATANABE: Okay, is that clear? BLANCATO: That’s my intention. The McCulloughs can call me as a witness, should this proceed forward. WATANABE: Exactly, exactly. BLANCATO: Correct. WATANABE: So you are satisfied with that? BLANCATO: Yes. WATANABE: Okay. IWASHITA: Mr. Chair? WATANABE: Yes, Mr. Iwashita? IWASHITA: Just to point out, everyone’s been talking about the McCulloughs, but my review of the application only Christopher McCullough has applied; it’s not two parties, just one person. EXHIBIT D 10 WATANABE: I agree, I agree. I believe Sallie Wolz-McCullough is here as a representative for Christopher McCullough. IWASHITA: Well, I guess my concern is that the discussion thus far has talked about both McCulloughs as being applicants to be intervenors when in fact the application is only signed by Christopher McCullough. WATANABE: Right. I needed to clarify that, too, because she can testify but, you know, the granting of standing is something separate, right? IWASHITA: Well, I guess my concern is that all the representations and from what the testifier has said up to now, you know, he’s thinking both of them have applied; only one has applied. I just wanted to make it clear. BLANCATO: Yeah, Sallie Wolz is Christopher McCullough’s sister-in-law. And she is the owner of the property; she is on the property as co-owner along with Christopher McCullough. IWASHITA: That’s fine. I just wanted to clarify the contested case procedure and applying to be an intervenor is very specific. And you can be an owner and if you don’t apply, you’re not going to be recognized as an intervenor, right? So my point simply is that only Christopher McCullough signed the request for, you know -. And I’m sorry, Sallie is not, you did not sign it, so you are not an applicant to be an intervenor; that’s the way it’s set up. I just wanted to make that clear on the record. BLANCATO: But the reason that happened was because we only had a week to file a contested case and Christopher McCullough was the only one that was actually in Kona that day and could do it, because there was only a week to act on this. WATANABE: Well, as long as it’s clear for the record, okay? BLANCATO: I’m sorry. Okay. WATANABE: Okay. IWASHITA: Well -. DOMINGO: Mr. Chairman? WATANABE: Yes? DOMINGO: I’m glad that Mr. Torigoe has made that clear with the speaker, and that he understands the implications of this matter with regards to not being notified in a timely manner, because prior notification is important. In fact, any procedure regarding any issue is important, if and when this goes to litigation or whatever. So having made that clear by Mr. Torigoe, I think, EXHIBIT D 11 in my mind I’m satisfied that the applicant (sic) clearly understands what it means, and that he fully accepts the responsibility and not pursuing the fact that he was not notified in a timely way. WATANABE: Okay, thank you. Mr. Iwashita? IWASHITA: Before we proceed, the same opportunity, I think, should be given to Sallie McCullough because she also did not receive the notices required, as I understand it, and she has not actually applied to be an intervenor. So I think that needs to be clarified also. WATANABE: Yeah, can I swear her in first? IWASHITA: Sure. WATANABE: Well, she was sworn in, but -. IWASHITA: She can testify. WATANABE: Usually we handle one testifier at a time. IWASHITA: Yeah. WATANABE: Okay. So, Mr. Blancato, then you are satisfied, yeah, for the record, and you wave -. BLANCATO: I’m satisfied with the way that you explained to me, that I do feel that we were notified, and that -. WATANABE: Okay, everything is kosher then. So then -. BLANCATO: Oh, no. WATANABE: You may be -. I wasn’t referring to the merits of the tower. BLANCATO: Okay. WATANABE: Just the procedures. BLANCATO: Correct. WATANABE: The procedures are kosher, right? BLANCATO: Understood. WATANABE: Then you may be seated, so I can narrow this all down. Seated back there. Thank you EXHIBIT D 12 BLANCATO: Oh, okay. WATANABE: Okay. Sallie McCullough now. You were already sworn in. Let me clarify something for you. Right now, we are taking your testimony as someone from the public; we are not discussing anything with regard to standing in a contested case hearing for Christopher McCullough. It’s my understanding that you are his representative today. Is that correct? MCCULLOUGH: Yes. WATANABE: But the standing in a contested case hearing is not what we are accepting right now, okay? All we are accepting is your testimony from the public first; we deal with that first. Secondly, before you begin your testimony, would you state your name and address for the record, please? MCCULLOUGH: Sure. My name is Sallie McCullough. My address is P. O. Box 1674, Kapaau, Hawaii, 96755. I’m a property owner adjacent to the proposed – well, it’s already there – but to the site we are discussing today. We’ve owned the property for over ten years. I’m a licensed real estate appraiser for the island. And so today I’d just like to share again – I won’t reiterate what Ralph has already said – but there’s tons of information and research available regarding health hazards for cell towers currently available. And just to, you know, say a couple of things about that, the National Institute of Environmental Health Services just passed a panel this year designated power frequency electromagnetic fields has possible human carcinogens. I have a whole list of different ailments and health problems that are associated and have been associated with cell phone towers – of course, they haven’t been around long enough for anyone to have specific scientific data, so – but there’s increased rates of lymphatic cancer, leukemia in children, you know, Alzheimer’s because of the fact it develops proteins on the cells in your brain, and you know, the list just goes on and on. But what I would like to share is that since the tower came on line on our property, it was, you know, not long afterwards where I personally have experienced dizziness from, you know, well, I’ve experienced dizziness. I’ve also contracted, or have asthma at this point, which I did not have before; asthma is one of the conditions that are associated with cell towers. Another condition that is associated is miscarriages; my sister-in-law this past year had a miscarriage. And again, we are about 300 feet from the tower, and you know, those conditions have personally affected us. The other issue that I’d like to state for the record is my concern that it would reduce our property values and quality of life for having the tower increased. So that’s what I’d like to share for today. WATANABE: Okay. Before I open it up to questions from the other Commissioners, let me ask the question – I’m sure everyone is dying to hear. Did you receive notice? And if so, was it short of the 10-day requirement? And if so, are you willing, like Mr. Blancato, to waive your right to intervene in a contested case hearing provided Christopher McCullough is granted standing as an intervenor in a contested case hearing? EXHIBIT D 13 MCCULLOUGH: Yes, I am. WATANABE: To all of those? MCCULLOUGH: Well, I would allow Christopher to be the representative for us. WATANABE: Yeah, you could be called up, like Mr. Blancato, as a witness, etc. MCCULLOUGH: Right, as a witness. That’s fine. I was not given notice. And I did call the consultants, Maria Ananda, to discuss this with her, and at that time she told me that they only had to let people know, who are 500 feet or closer to the structure. And then she also, however, did in our conversation mention that she had sent out 150 letters; there’re not 150 residents within 500 feet, so I am curious as to who got letters and why we did not. But you know -. WATANABE: That’s a separate matter. MCCULLOUGH: Yes, so I was not given enough notification to file paperwork. WATANABE: Okay. But again, back to the same question that we ask the same principles apply, yeah? MCCULLOUGH: Right. WATANABE: Are you willing to waive your right -? MCCULLOUGH: Yes. WATANABE: To intervene? And so not having received notice prior to 10 days of this hearing is moot, right? MCCULLOUGH: Yes, I am. Yeah. WATANABE: Okay, thank you. We’ve clarified that. Now I open up to further questions. Mr. Woodward? WOODWARD: Thank you, Mr. Chairman. I’m going to ask you a question you probably don’t have the answer to. You have an existing cell tower that’s 80 feet tall. They are proposing building one that’s 40 feet higher. Is that going to increase or decrease the amount of radio waves that you are exposed to? If you put it higher off the ground, unless it has a bigger transmitter, it would seem to me it would ameliorate that rather than make it worse – that is assuming there in fact are health risks, which is another question. MCCULLOUGH: Well, according to the research that I’ve done, you know, it is even being higher, you know, it’s possible that those waves would be higher; however, it still affects the area right around it, which is in close proximity. Also there is an issue that was discussed earlier, EXHIBIT D 14 the common practice of adding other carriers onto the unit, which increases by, you know, tenfold the amount of radiation and radio active energy that’s going out from that tower. WATANABE: Thank you. Mr. Domingo? DOMINGO: Mr. Chairman, thank you. Mr. Torigoe, the last two speakers, we’ve asked them if they would be willing to waive their rights with regards to proper notification. And should a contested case be included in this procedure, one of the pertinent arguments that would be very valid in this case is the fact that they weren’t properly notified. From the standpoint of the Commission, is it proper that we have that commitment from these individuals? TORIGOE: When you say “it’s proper,” I’m not sure what you mean by that. DOMINGO: Legal? And is it acceptable that we ask them to waive their rights with regards to that particular issue of notification? TORIGOE: Yeah, I think as long as they are fully aware of what they are waiving, you know, and I think both of the waivers that we put on the record so far have been contingent on there being a contested case that they can be participating in as witnesses. If they are quite clear – and I think it’s been made clear and your chairperson has gone over it a couple or three times with them to make sure that they understand what’s happening – I don’t see a problem with that. DOMINGO: But the thing is that we are telling them that the issue of proper notification will not be a subject of discussion or contention in the whole case. WATANABE: Yeah, it will not be something appealable, so -. They are here -. DOMINGO: Yes, so that’s -. And I understand they are waiving their rights and -. WATANABE: Yeah, in lieu of -. DOMINGO: In lieu of that, so -. WATANABE: Timely notification. Yes, Mr. Woodward? WOODWARD: Thank you, Mr. Chairman. Just to follow up on Commissioner Domingo’s point, we know two people who were not properly notified, and they said, okay, that’s fine; but we don’t know how many others were not properly notified. And I think it cast out on the whole procedure at this point. I don’t see that we can actually make a decision. We know there is a problem with notification; we don’t know how widespread it was. All we know is we have two people here who were not notified according to regulation. And there may well be a bunch more out there; that would be my concern. WATANABE: Point well taken. I will remind you that we still have an application for standing as an intervenor in a contested case hearing, and right at this point the only thing we are EXHIBIT D 15 really establishing is whether we can continue it at this point and to get rid of the public testimony, yeah? So if -. Do we have any other questions for Sallie? Mr. Iwashita? IWASHITA: Yeah, just, I guess the two parties who’ve indicated they’re willing to go forward without filing their own application to intervene, they understand it if for whatever reason Christopher McCullough says, you know, I’m not going to do this anymore, or if he dies – I’m not putting any bad luck on him or anything – but if for whatever reason he no longer is an intervenor, that’s the end of the contested case hearing, right? I mean, that’s, these parties would have no control over that, so -. WATANABE: Their waiver was subject to him becoming, granted standing. IWASHITA: I’m assuming that he does become an intervenor and there is a contested case hearing, but -. WATANABE: In some future in the process -. IWASHITA: But at some future date before this matter is resolved, right, for whatever reason he no longer is an intervenor, whether by natural causes or by choice, that they understand that’s it, that they don’t have any control over the case anymore. That’s what I wanted to make sure. WATANABE: Okay. Mr. Torigoe, let me propose something to you. If we proceed at this process, can we, I mean, based on these waivers and the assumption that these are the only ones, at least for now, that had not been properly or timely notified, could we then make it a requirement that the applicant provide another notice and satisfy the notification without nullifying any actions that were taken today, which might include granting standing to Christopher McCullough? TORIGOE: Well, I think you probably want to ask the applicant to confirm with staff to see if, you know, to just ensure that all proper notice was given. If there is some reason to believe that an additional notice has to be given, certainly that’s within the Commission’s discretion to do so. Or if you look at what’s happened today and you feel that there are already merits in sending them another notice, you could do that as well. I might also note just that if Mr. McCullough is given standing and if he dies, under your Rule 4-16 parties can be substituted for him. WATANABE: Okay, thank you. So that would satisfy your question. IWASHITA: Yeah, I understand the substitution, but that is beyond the control of the two people we are talking about, you know, potentially, because a substitute would be either his estate or successor in interest of his title in the property, right? WATANABE: Okay. You know what? Irrespective, yeah, right now we haven’t made any decision on anything yet, right? EXHIBIT D 16 ALAMEDA: I’ve got -. WATANABE: Yes? ALAMEDA: A small recommendation, cause I’m getting dizzy cause I’m not eating. But if we can finish up this part, and then maybe we can break, clear our heads a little bit, and then come back for the action. WATANABE: Yeah, I have one more individual that got sworn in and wants to testify, and I was hoping to get past at least the testimony. But we are stuck in this, you know, legal quagmires from the beginning of today. So, do we have any further questions for Sallie McCullough as a testifier? None? Okay. And I explain to you, Ms. McCullough, that we are not determining, you know, even as a representative of Chris McCullough, we are not determining his standing yet at this point. And it’s taken obviously longer than we anticipated. So you may be seated in the audience, okay, because we are done with the testifying part. MCCULLOUGH: Okay, thank you. WATANABE: Danette, we’ve already got your name, address and all of the good stuff, so -. METTLER: I’ll be quick. WATANABE: We’ll take your testimony. METTLER: Verizon Wireless is a tenant on this Crown Castle tower. They are actually in top position, the tallest position, and I believe they probably started this process in requesting a higher pole. And I just wanted to testify and let the Commission know how important it is that we be able to provide additional coverage. As you probably know, their E911 system is very helpful to Police and Fire in locating people in need. And there is also data that is transmitted. Now it’s not just about telephones. And I just wanted to let you know that if for some reason this isn’t approved, we will have to find another tower location, which would impact again many more owners, so -. WATANABE: Someone’s vista, right? METTLER: Pardon? WATANABE: Someone’s views. METTLER: Somebody’s views. This is already there. There are, as you can see in the pictures, large trees around, so it doesn’t really have the impact, visual impact that maybe another location might have. WATANABE: Okay. Do we have any questions for Danette? Yes? EXHIBIT D 17 HOUSEL: Do you represent Crown Castle? METTLER: No, I represent Verizon Wireless. HOUSEL: And what’s the relationship between Crown Castle and Verizon? METTLER: That’s a landlord-tenant situation. So originally Verizon Wireless owned this tower, and they sold it to Crown Castle and leased back from them. HOUSEL: I see. Now regarding the notification that was sent out, did Crown Castle do that? METTLER: Their representative did, yes. HOUSEL: Their representative did. Okay. In the case of inadequate notification, I don’t know, it seems like if we have two, you know, kind of seconding Rell’s concern, I’m concerned about others who maybe were not notified also. METTLER: I don’t know anything about that. HOUSEL: Okay, thank you. WATANABE: Any further questions? None? Okay, look, let’s do this. We’ve taken care of – thank you for your testimony, you may be seated – we’ve taken care of the testifiers; let’s take a recess. We’ll go have lunch. Let’s reconvene at about 2:00-ish because it’s going to take us awhile to get across to there, etc.So we’ll reconvene at about 2:00, and then we’ll continue this matter then. RECESSED The Chair called a lunch recess at 12:28 p.m. Commissioner Alameda left the meeting at this time. RECONVENED The meeting reconvened at 2:03 p.m. WATANABE: Planning Commission, please come back into order. Prior to lunch we were on Agenda Item No. 4, Crown Castle International, and we had entertained all of the public testimony. Now we are, I guess, at the point where we determine whether to move forward. We do have a timely filing for a contested case hearing from Chris McCullough. But we also have a question as to whether timely notice was served to everyone. Maija, are you aware of anyone else that wasn’t served, or are you able to assure the Commission that aside from those two individuals everyone else was served that needed to be served? COTTLE: Sure. There were three surrounding property owners that were not notified with the original notice. And when that was discovered, the applicant’s consultant notified those three property owners, and two of them were here today. They were notified on th November 17. EXHIBIT D 18 WATANABE: Okay. The two that were here, Ralph Blancato and Sallie McCullough who was supposed to represent the intervenor, Chris McCullough – I’m not aware of the third, though. COTTLE: Well, it was originally three property owners that weren’t notified, but the consultant notified six additional property owners. I can read them off to you, if you’d like. WATANABE: Well, that might satisfy Mr. Iwashita’s original question. My only question now, though, is that those two property owners that were present today testified that they received it within seven days. And it’s been determined that ten days, minimum of ten days notice for the public hearing was required, which then brings us back to whether we have perfected notice or not. We’d have to assume that they attempted to notify everyone at the same time. Unless there is a -. Is there a representative from Crown Castle International present? Would you like to come up, sir? May I swear you in? FOX: Yes. WATANABE: Raise your right hand, please. Do you swear or affirm to tell the truth now before the Planning Commission? FOX: Yes, sir. WATANABE: And for the record, your name and address, please. FOX: My name is Keoni Fox. My residence is 48-472 Kamehameha Highway in Waikane. WATANABE: Keoni, could you inform us when that notice went out to the additional six neighbors? FOX: We found out that there were three property owners that were not notified th last week Monday, the 17, and we sent notices out that same day. I think some properties have multiple owners, so that’s why there were six notices sent out in total. WATANABE: Okay, so that was Monday, and ten days -. WOODWARD: Seven days ago. IWASHITA: Seven days. WATANABE: Still yet even days, yeah? Okay, so then we are still deficient then. Do you want to just continue, and then determine standing at that point? If we determine standing, is that going to be called into question, Mr. Torigoe? TORIGOE: Well, not as with respect to Mr. McCullough, I don’t think. And if somebody else shows up at a later date, you know, you’ve already got a contested case hearing EXHIBIT D 19 on the road, if you give Mr. McCullough standing, and so you could easily add somebody else, if they did not properly get noticed. WATANABE: And enjoin them in the original contested case. TORITGOE: Right. WATANABE: Okay. Well, as you know, we have at least one individual at this point, Chris McCullough, who has filed for standing in this contested case hearing. Yes, Mr. Iwashita? IWASHITA: So procedurally then, are we going to go ahead and take up the petition -? WATANABE: I think what I understand from what Mr. Torigoe indicated is it would not be a problem to determine standing at this meeting for Mr. McCullough, and if in the future some other individual came up, we could enjoin them in that contested case as parties, too. IWASHITA: That’s fine with me. And in addition to that, the applicant would be required to provide notice of whenever this is going to be continued to, to meet the 10-day requirement? WATANABE: Yeah, I was going to handle that after we determine -. IWASHITA: Okay, that’s fine. Thank you. Thank you, Mr. Chair. WATANABE: Yeah, and that way the notice would be perfected. Okay so, you all are aware of the facts now. I will entertain a motion to either entertain or deny standing for Chris McCullough from the joint owner of that property who testified earlier, Sallie McCullough, who I believe is a sister-in-law. IWASHITA: Sister. WATANABE: Sister? Yeah. She declared that they are approximately 300 feet from the antenna. IWASHITA: I’m prepared to make the motion. WATANABE: Yes, Mr. Iwashita? IWASHITA: Thank you, Mr. Chair. I move that Christopher McCullough whose petition for standing in contested case hearing was filed on November 17, 2008, be granted standing as an intervenor, and I guess that’s it. WATANABE: Yeah, okay. Do I have a second on that? HOUSEL: I’ll second. EXHIBIT D 20 WATANABE: Thank you. Keoni, do you have any objections to granting standing to Mr. McCullough? FOX: No, no, we didn’t. WATANABE: Mr. Yuen, any objections? YUEN: No. WATANABE: Okay. Yes, Mr. Woodward? WOODWARD: Mr. Chairman, reviewing this petition for standing, the answers to virtually every question is no. And it says, “If the answer is ‘no,’ please explain how the proposed action will nevertheless cause you actual or threatened injury:” and it says, “Radio wave.” That’s all we have. WATANABE: I understand it’s, shall we say, an unconventional way of completing this petition for standing. That’s said, I think they’re really lay people here and maybe we can give them a little latitude. I suspect we know what their objection is going to be. Maybe we can have further discussion on that, and see if there are differences in opinion here. Mr. Iwashita? IWASHITA: Thank you, Mr. Chair. My understanding is that we are proceeding both on the petition itself and the testimony presented by Mr. McCullough’s sister earlier this day without objection. And that being the case, the record established by Ms. McCullough was that they live within 300 feet of the tower. So beyond the radio wave issues which she testified, she also testified to the other physical detriments that they perceive. So it’s on that basis that I made the motion. Thank you, Mr. Chair. WATANABE: Yes. Any further discussion on this? Okay. Maija, you want to call for the vote then? COTTLE: Commissioner Iwashita? IWASHITA: Yes. COTTLE: Commissioner Housel? HOUSEL: Yes. COTTLE: Commissioner Domingo? DOMINGO: Aye. COTTLE: Commissioner Woodward? WOODWARD: Aye. EXHIBIT D 21 COTTLE: And Mr. Chairman? WATANABE: Aye. COTTLE: Motion passes. WATANABE: Thank you. Now that we granted standing, we have a second decision to make, which is whether we are going to handle this on our own or if we are going to farm this out. Personally I think it’s relatively simple discussion, although it might get to be a little bit emotional at times. I think we can handle it, though. And I’d like to hear the feelings of the rest of the Commissioners. Mr. Iwashita? IWASHITA: Yeah, I concur, with a little bit of reservation, but I concur. And so if the Chair wants, I can make the motion, and then we can have discussion. WATANABE: Mr. Housel? HOUSEL: I agree. I think we can handle this. WATANABE: Any other comments? Maybe, oh, yeah, I guess, go ahead and make the motion. IWASHITA: Thank you, Mr. Chair. I move that with regard to the contested case hearing set for this matter, which is Crown Castle International (SPP 1191), amendment to Special Permit No. 1191, etc. that the Planning Commission hear the contested case directly without appointment of a hearings officer. WATANABE: Thank you. Do we have a second? Mr. Housel? HOUSEL: Yes, I’ll second. WATANABE: Okay. Any further discussion on this? All those in favor of handling this internally, say aye. COMMISSIONERS: Aye. WATANABE: Any opposed? Okay, then it sounds like it’s unanimous. We’ll handle that internally as a contested case hearing. Then, this is for Mr. Keoni: Earlier we had determined that the legal requirement is 10 days prior to hearing notice, and I don’t know exactly when this is going to be rescheduled, but it’s clear from your testimony, as well as the testimony of the previous testifiers, that notice was deficient as far as the time, timing of the notice. So you would need to disclose, yeah, at least 10 days prior to the next hearing date. FOX: You mean, send out a new notice to the property owners? EXHIBIT D 22 WATANABE: I believe that’s correct, right, inclusive of the new location and time and etc. Mr. Hayashi? HAYASHI: Once we set the date for the contested case hearing, then we immediately notify Mr. Fox, and he in turn will have to notify the surrounding property owners. WATANABE: Okay. And you will also notify the intervenor of what his obligations are as an intervenor and -. HAYASHI: Yes. WATANABE: Yeah you know, to come prepared. HAYASHI: We’ll explain to him what the procedure is, what he needs to file prior to the meeting. WATANABE: Yeah, okay, thank you very much. So I think that would settle all of the issues on this; we would have perfected notice, and the intervenor will be informed of the new meeting date and his requirements, yeah? IWASHITA: When is it going to be set? WATANABE: Well, that’s the next one then. Because of the imperfect notice we would entertain a motion to continue this hearing -. IWASHITA: To January? The January hearing? WATANABE: Yeah, we already, we only have three in December? HAYASHI: As far as timing-wise, I don’t think we’ll meet the time requirement. WATANABE: So January would be the earliest. HAYASHI: Yes. WATANABE: The next January meeting in West Hawaii. HAYASHI: It’s tentatively scheduled for January -. WATANABE: Okay. So motion to continue to our January meeting in West Hawaii? IWASHITA: I move that this matter, Crown Castle International (SPP1191), be continued for hearing to the January West Hawaii meeting. WATANABE: Thank you. And second to that? EXHIBIT D 23 DOMINGO: Second. WATANABE: Okay. Any discussion? No? All those in favor in continuing to the next West Hawaii, the next -. IWASHITA: The January. WATANABE: January, to the January meeting in West Hawaii, say aye. COMMISSIONERS: Aye. WATANABE: Any opposed? Okay. So it’s then continued. rd HAYASHI: Just for Mr. Fox’s information, the meeting is January 23, and it will be here at the Hapuna Prince Hotel. WATANABE: Okay, thank you. Yes, Mr. Torigoe? TORIGOE: Thank you, Mr. Chairman. I just wanted to let Mr. Fox know that – and I know you’ve been through these kinds of hearing before – but you may want to check with the staff, and if necessary, we can set up a pre-hearing conference with you and the intervenor and possibly the chairperson, if necessary by telephone, just trying to set up what kind of procedures you guys want, you know, whether you want to have a really formal trial-like procedure or if you want to have something more informal. And of course, under Rule 4 you guys can basically stipulate to any form of procedures you want. FOX: Okay, thank you. WATANABE: Okay, so that will be it then. rd FOX: So the January 23 meeting would actually be the contested case hearing. WATANABE: Right, yes, cause you’ll be actually in form of contested case hearing. FOX: Okay, thank you. If I can say, I just want to apologize for the deficient notice. Like I said, we did send out over 130 notices and we missed three properties. And I definitely apologize to the Commission for that. WATANABE: It happens. Okay, thank you. The discussion ended at 2:20 p.m. Respectfully submitted, Noriko Sauer, West Hawaii Secretary EXHIBIT D 24