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HomeMy WebLinkAbout2004-12-02 THOAWE A regularly advertised hearing on the application of was HOAWE, LLC (REZ 04-018) called to order at 10:48 a.m. in the Hapuna Beach Prince Hotel, Hau/Lehua Room, 62-100 Kaunaoa Drive, Kohala Coast, Hawaii with First Vice-Chair Earl Fujikawa presiding. PRESENT:Earl FujikawaABSENT AND EXCUSED:Fred Galdones C. Kimo AlamedaRen± Siracusa Jeffrey McCallWilliam Graham Francis Smith Hannah Springer Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner JeffDarrow,StaffPlanner Kiran Emler representing Department of Public Works And approximately 10 people from the public in attendance. APPLICANT: HOAWE, LLC (REZ 04-018) Change of Zone for approximately 4.006 acres from an Agricultural 1-acre (A-1a) to a Single Family Residential 15,000-square foot (RS-15) district. The properties are located at the western end of Pamahoa Place, approximately 600 feet from the Palani Road ƒ Pamahoa Place intersection, Pamahoa Estates Subdivision, Kealakehe Homestead Lots, North Kona, Hawaii, TMK: 7-4-4:80 ƒ 83. FUJIKAWA:Okay, Item No. 5 on the agenda is an application by HOAWE, LLC. This is a Change of Zone for approximately 4.006 acres from an Agricultural 1-acre (A-1a) to a Single Family Residential 15,000-square foot (RS-15) district in the Pamahoa Estates Subdivision, Kealakehe Homestead Lots, North Kona. Staff? DARROW:Thank you, Mr. Chairman. If I may direct your attention to the location map. The subject properties are located at the western end of Pamahoa Place, approximately 600 feet from the Palani Road ƒ Pamahoa Place intersection, Pamahoa Estates Subdivision. This in the Kealakehe Homestead Lots, North Kona. This is Palani Road and this is Ulaoa Street running in this direction. The subject properties are indicated in this red-colored area. EXHIBIT C The applicant is requesting a change of zone for approximately 4.006 acres from an Agricultural 1-acre (A-1a) to a Single Family Residential 15,000-square foot (RS-15) district. We have received a letter of opposition from Attorney Bob Borns representing several lot owners, as well as adjoining lot owners; and we, just this morning we received two letters of support from Winston Chow and Victoria Obedoza. I would like to bring to your attention that Condition D of the conditions list that it will prohibit the construction of a second dwelling or CPR, condominium property regime, for these newly-created lots, if approved. The Planning Director is recommending that the Planning Commission send a favorable recommendation to the County Council. Are there any questions? FUJIKAWA:Are there any questions, Commissioners, to the staff? If not, will theApplicantorhisrepresentativepleasestepforward.Canyouraiseyourrighthand, please. Do you swear to tell the truth on this matter now before the Hawai i Planning Commission? HARLOW:I do. PACK:I do. FUJIKAWA:Thank you. We€ll start with you, Pam. Could you state your name and your address. HARLOW:Yes. My name is Pamela Harlow. I€m a planner with SSFM International. My address is 74-5620 Palani Road, Suite A-218, Kailua-Kona, Hawai i 96740. With me this morning is member-agent Thomas W. Pack of Hoawe, LLC. FUJIKAWA:Okay. Tom, you may start with your name and address. PACK:My name is Thomas Pack. My address is 75-5629 Kuakini Highway, Suite R-489, here in Kailua-Kona. FUJIKAWA:Thank you. You may proceed, Pam. HARLOW:I would like to thank the staff for the Background Report and presentation this morning. I have just one minor clarification to offer on the Background Report, and that is under Item No. 5 in the background information on the first page. Variance Permit No. 1339 was approved on November 14, 2002, not 2003, as stated. FUJIKAWA:Staff, you got it? DARROW:Yes. 2 FUJIKAWA:Thank you. HARLOW:We are in agreement with everything else in the Background Report and the Recommendation, with one small exception, and that is Condition E. Condition E currently states, Any vehicular gate shall be set back a minimum of 60 feet from the existing right-of-way line of Palani Road.‚ The Applicant would like to either eliminate or amend this condition, the reason being that the Applicant does not have the sole authority to determine whether there should be a gate placed there at all or where it should be placed, and that is because the Applicant owns or controls the easement along with the other 14 lot owners within the subdivision. So the Applicant does not have the power to determine where that gate should be. So it€d be impossible for them to comply with this condition. So,asanalternativetothatwording,wewouldliketosuggestthefollowing: Condition E to read, Any vehicular gate shall be set back a minimum of 60 feet from the existing right-of-way of Palani Road if agreed to by all lot owners within the Pamahoa Estates Subdivision.‚ FUJIKAWA:That€d be the added request, right, by all lot owners,‚ is that what it is? HARLOW:That€s correct. It would add the words, if agreed to by all lot owners within the Pamahoa Estates Subdivision.‚ FUJIKAWA:Director, could you answer to that? Is it okay? YUEN:We€re putting this in because this, we have had problems with the vehicular gates and there not being enough space when people pull up to the gate and cars backing up, and potentially backing up into the Palani Road right-of-way. Let me think about this a little bit more. But we really don€t, we really want to be sure that there is enough space for cars that may be stopped by any gate. Do you know if there are any plans in the subdivision to gate the road? HARLOW:Let me have Mr. Pack address that question. FUJIKAWA:Mr. Pack. PACK:Actually, there are no definite plans now. There has been talk among some of the homeowners as to the possibility and the advisability of installing a gate. From a realistic point of view, if it happens it would probably be set backed several hundred feet, because I know that the owners of Lot 1, they have told us that they would not like a gate to be installed anywhere near their house. So if a gate is installed, almost certainly it€ll be set at least 200 to 300 feet back from Palani Road. 3 And, I guess, I might be willing to go on record as saying that I would, what, I€d do what I can to veto any gate within 60 feet of Palani Road. I€m certainly in agreement that that would be a hazardous location. YUEN:What do the, are there subdivision, current subdivision documents that talk about how this would be decided, how the subdivision would decide? Would it strictly be by majority vote? PACK:Off hand, I don€t recall exactly how the CC&R€s are worded. But I do know that my wife and I have talked with our attorney, Matt Jewell, and Matt has essentially advised us that unless all 15 owners are in agreement that we should not try to install a gate anywhere. HARLOW:The CC&R€s don€t specifically address the installation of a gate perse. YUEN:Iwouldwillingtomodifytheconditionsothatit€scovenant- binding on all the future lot owners that they, that should the issue of a gate come up that they would not approve it unless it was located minimum 60 feet from the Palani Road right-of-way. In the meantime, I would want to see a letter from your attorney to the effect that that would prevent a gate by being installed closer by some kind of majority vote. You know, what you said is that you€d have to have unanimous agreement of the lot owners to install a gate. That being the case, I don€t know what the basis for that is, you know, not having read any of your documents or not knowing why you said that. If you could get a letter to that effect before we took this to the Council, I€d be satisfied with that. If not, we would, we€d have to revisit this at the Council level. Let me work on a condition for a few minutes. FUJIKAWA:Pam, I have a question. In the CC&R€s, I believe that you€re reading the CC&R€s. Is there anything in the CC&R€s that states that any changes has to be a majority vote in the -? HARLOW:Well, under the Roadway Maintenance section of the CC&R€s, there is a section regarding votes, regarding repair and maintenance. And it states, For purposes of this Agreement, any decision to incur, expend and/or use funds or monies to operate, maintain, upkeep, repair, protect, improve and/or preserve the roadway/utility easement, including but not limited to paving or repaving the roadway/utility easement must be affirmatively approved by owners of two-thirds (2/3) of the lots. Any decision so confirmed shall be binding on all owners. The Design Committee shall have the authority to execute maintenance decisions of the lot owners and to assess upon each owner the owner€s pro rata share of costs in accordance with Article VIII. The expenditure of any and all funds, monies and/or expenses so approved and decided upon shall be documented in writing and signed by all parties so affirming same.‚ 4 YUEN:Well, do you know if this lot counts as one lot in the CC&R€s, or if you subdivided to eight is it going to count as eight, for purposes of these two-thirds vote? PACK:Well, once it€s subdivided, each new lot would have one vote. FUJIKAWA:Yeah, it says right here. YUEN:Okay. So then as long as none of the other lots gets subdivided, you would have more than a third, right? You€d have 8 out of 21 at the end of this? PACK:Well, actually, nine because my wife and I own another lot where we live in the subdivision; but, yes, we would have 8 or 9. YUEN:Youwouldn€thaveanyobjectiontohavingthatlotalsoboundby this covenant that you would vote against a gate located closer than 60 feet from the Ali i, from the Palani right-of-way? PACK:No, no, that would be fine. YUEN:Okay. HARLOW:Perhaps I can shed a little light on this. Within the CC&R€s, there is a definition of lot meaning Lots 1 through 15, as well as any separate parcels later created from any of the properties described in the exhibit. So it applies to all future lots as well. FUJIKAWA:Mr. Pack, you have anything to say? PACK:Nothing further, no. HARLOW:I€d like to make a brief statement. I believe that the Background Report covered this adequately, as well as the Recommendation prepared by staff and approved by the Planning Director, but I would like to point out the following: This project provides sorely-needed additional residential lots in close proximity to the urban core of Kailua Village. The resulting density is going to be the same with this project, whether the existing four lots were developed with a primary dwelling and an ohana dwelling, or the proposed eight lots are developed with one single-family dwelling per lot. So there will be no increase in density should this application be approved. And, contrary to statements in Mr. Borns€ letter, Hoawe LLC has followed all applicable rules and regulations in developing Pamahoa Estates Subdivision, and will continue to do so with this subject project. FUJIKAWA:Is there any question, Commissioners, with the Applicant€s representative? Springer? 5 SPRINGER:This goes to the Planning Director and perhaps Mr. Emler. I€m looking at Exhibit C, the second page, Item 3, which indicates Palani Road, the County road serving Pamahoa Place, is a primary arterial road.‚ And it goes on to say that It is substandard based on width, alignment and roadside hazard clearances. Palani Road should be improved to an 80-ft. right-of way according to the County€s General Plan. Average daily volume was 15450 vehicles per day in 2002. This will be identified as a deficient link based on daily volume under criteria established in the 1998 Hawaii Long Range Transportation Plan.‚ I€m wondering if I might have a discussion of that comment with regard to this application and a statement by the Applicant that this application does nothing to increase the density that has already been approved. FUJIKAWA:Mr. Emler? EMLER:Well,becausetheissueofconcurrencyontrafficissueshavecome up in the recent past on other applications, we thought we should make a comment regarding what the daily traffic volumes were or are on Palani Road and make a statement about what, in comparison to what some traffic volume standards have been established in the, and, using some type of source as like a guideline to determine what, how it compares. And there is a table in the 1998 Long Range Transportation Plan that gives a very basic comparison of daily traffic volumes to level of service; and it indicates that this would be deficient link based on those traffic volumes. SPRINGER:Mr. Emler -. May I continue? FUJIKAWA:Go ahead. SPRINGER:Mr. Emler, the Applicant€s representative has indicated that this application does nothing to change the population density. And so there, I imagine, the implication is so there would be no increase in numbers of cars on the road. Is that accurate to the Applicant? HARLOW:That would be true if the four lots, the four existing lots, were developed with two homes, a primary dwelling and an ohana dwelling. Because the Applicant owns all four lots and has the necessary water commitments from the Department of Water Supply, that is completely within the realm of possibility now. SPRINGER:Thank you. So, Mr. Emler, I guess, and maybe Mr. Yuen can enter into this discussion as well, I€m just trying to understand how to take the Department of Public Works€ observation that we have conditions of substandards and deficiency with what the Applicant is representing. EMLER:Well, given the Applicant€s response to that issue, I don€t disagree or Public Works would not disagree with that assessment, that if they were to develop ohana dwellings on these lots, in other words, two dwellings per existing lot, it would not increase the potential traffic generation from the properties to subdivide them, otherwise 6 subdivide them into two individual lots without allowing ohanas on those individual lots -- which I see there is a restriction in the proposed conditions for this zone change to prohibit ohana dwellings on the newly-created lots. So, given that, I would not disagree with the Applicant€s countering to that issue. SPRINGER:Thanks, Mr. Emler. Mr. Yuen, can you help me with this? YUEN:Sure. This wasn€t an easy application for us to look at because it involves a collision of two different policies. One, the housing policy where we are trying to create additional housing opportunities within Kailua-Kona, specifically, and, that may tend to alleviate the traffic problem to some degree because it enables people to look closer to work places, rather than people living in South Kona, Ocean View, Honoka a, even Kalaoa, places more distant from the typical commuting pattern, which is into Kailua-Kona from the rural and suburban areas of Kona. On the other hand, we are creatingadditionallotsthatfeedintoPalaniRoad,whichisquiteinadequateinitscurrent design. On balance, because of the fact that you did have a potential for the same number of lots from, the same number of houses under the ohana zoning possibility, the fact that we are, we continue to think that housing opportunities within Kailua-Kona are part of the traffic solution rather than necessarily part of the traffic problem, we do recommend approval of this. The toughest part of this one actually was at Palani, isn€t very good, and to just add, and adding more people that then feed off of Palani. We did work on trying to see if there was a way to make Pamahoa Place a through road with a back, some kind of back connection to the other subdivision roads in the area but that, it just doesn€t pan out. And we could get into the nitty-gritty of this, but it didn€t, we worked on it and we couldn€t find a way to do it. SPRINGER:Mr. Chair? FUJIKAWA:Go ahead, Ms. Springer. SPRINGER:I€ve missed the answer to this question that I€m going to ask him in the background materials that I appreciate being referred to it. But do we know how many accidents, including minor fender-benders, occurred between Palani junction and the bottom of Liliuokalani Gardens? YUEN:I did look at this one time in connection with another project, but I couldn€t give you any statistics. It€s something that the Police Department keeps accident records. And the State and Public Works have access to these that, they have accident records by mile marker and going back, you know, many, many years; and so you can pull up the accidents for any particular stretch of road. There are fatalities along Palani Road. As I recall, the worst sections are the S-curve at the top. I was, you know, when I looked at this I thought that there would be more, to tell you the truth, but I guess people 7 are used to it. But it€s, and there€s no question that it€s a substandard road, especially for the number of people that go up and down it everyday. FUJIKAWA:Is there any other question, Commissioners, with the Applicant€s representatives, staff or the Director? SPRINGER:Mr. Chair? FUJIKAWA:You do have one, Ms. Springer? SPRINGER:I have a comment, and that€s just that, with the Public Works comments regarding the substandards and deficiency of Palani Road, particularly in this section where sight distance is limited and shoulders are, looking at the photographs, are quite narrow, if existent at all. I have strong reservations about voting in the affirmative onthismatter.AndI€mnotsure,I€mseekingguidanceifweshouldputittoavoteor defer it at this time before we go to vote. FUJIKAWA:You want to defer it at this time? What do you want to do? ALAMEDA:Chair -. I€m just interested to learn a little bit more about your reservations. Commissioner Springer, again? SPRINGER:I€m looking at Exhibit C, second page, third item, of both of the memoranda; and that€s the discussion of the substandard conditions based on width alignment and roadside hazard clearances, and the statement that Palani Road should be improved to an 80-foot wide right-of-way, according to the County€s General Plan, and looking at the average daily volume of vehicles, and then the further discussion that this would be identified as a deficient link based on daily volume under criteria established in the 1998 Highway Long Range Transportation Plan. I have reservations about approving this. ALAMEDA:Thank you. SPRINGER:You€re welcome. FUJIKAWA:McCall? MCCALL:Yeah, I mean, we have visited here before. You know, Palani Road is definitely a problem. And if someone could refresh my memory, but I think that, you know, there are no plans at this point in time to make any improvements to Palani Road. If I could refer that to Mr. Emler. FUJIKAWA:Mr. Emler? EMLER:There are funds in the Capital Improvements budget for, I believe it€s $2-1/2 million to do some improvements on Palani Road, safety improvements 8 they€re called. Palani Road safety improvements it€s called. That money, at least a portion of it, is going to be used for improving the intersection of Kealakaa Street with Palani Road in which they€ll be realigning that intersection with one of the streets that enters the Queen Liliuokalani Trust Subdivision there, or Queen Liliuokalani Village residential area will be aligned with that. That project is still in the planning, in the construction planning stage. That intersection will be signalized. I€m not sure how much of that $2-1/2 million is going to be used for that. But other than that there are no definite plans for other safety improvements at this time on Palani Road. There have been some recent improvements of shoulder width on the roadway done by our Highway Maintenance Division under their budget. SPRINGER:Mr. Chair? FUJIKAWA:Springer. SPRINGER:Ki, could you point out those locations for us on the map where the Kealakaaworkisgoingtobedone,ascomparedtowheretheApplicantwouldbe accessing Palani Road? EMLER:Kealakaa Street is approximately here; and the subdivision, proposed subdivision is where this red dot is. The closest street intersecting Palani Road is the one called Ulaoa Street. It€s just south of the entrance to the subdivision, which is called Pamahoa Place. It€s the cul-de-sac that serves the proposed lots. SPRINGER:And does that road, is it Ulu -? I€m sorry, could you repeat the name again? EMLER:Ulaoa. SPRINGER:Ulaoa, does that intersect with Kealakaa? In other words, would people coming out of the subdivision have to come out onto Palani Road on Ulaoa, or may they go deeper into the subdivision and come out at the proposed channelized intersection? EMLER: Is your question regarding actions taken by the proposed lot owners? SPRINGER:Yes. EMLER:Okay. The proposed lot owners will be only able to access Palani Road by way of the cul-de-sac that serves their lots, so they would have to come onto Palani Road. If they wanted to go to Kealakaa Street, then they would take one of the several accesses that are available, mentioned in my comments, Hao Kuni Street, Ulaoa and then, of course, Kealakaa itself. 9 SPRINGER:Thank you. That€s consistent with what the Director said. Thanks for the illustration. FUJIKAWA:Any questions or comments, Commissioners? Alameda? ALAMEDA:Thank you. I€m just wondering if, you know, with Commissioner Springer€s reservations, what conditionor what could mediate Commissioner Springer€s reservations? Commissioner Springer? FUJIKAWA:Commissioner Springer? SPRINGER:Fix Palani Road. ALAMEDA:Oh, boy. Okay. FUJIKAWA:Okay? ALAMEDA:Yes. FUJIKAWA:Springer, you have anything to say? SPRINGER:I€m just wondering what the pleasure of the Chair is, if the Chair would prefer to take a vote on the matter or to defer? ALAMEDA:Commissioner -. Chair? The only reason I ask is cause even if we defer, Palani Road ain€t going to improve at the next meeting. So I€m just -. FUJIKAWA:Yeah, before we continue on this, Commissioner Springer, we do have a person who signed up to testify. Maybe we€ll make a room for the person to, you may slide right on over, Pam. Could David Clausnitzer, sir? Is there anyone else in the audience who would like to testify on this particular application? Just you, David. Kindly raise your right hand. Do you swear to tell the truth on this matter now before the Hawai i Planning Commission? CLAUSNITZER:I do. FUJIKAWA:Please state your name and your address. CLAUSNITZER:My name is Dr. David Clausnitzer. I live at 74-836 Pamahoa Place, Kailua-Kona. FUJIKAWA:Thank you. You may proceed. CLAUSNITZER:I€m a field ecologist and soil scientist with the U.S. Department of Agriculture, and I moved to Kona a little bit more than a year ago to assume my new position here. My wife, Kathy, moved here earlier this year and we moved into our 10 house in Pamahoa Estates. I€m here to speak in opposition to the proposed rezoning of these four lots. I also represent a number of people whose names are on a list which has been submitted to you who are with me in this opposition. First thing I€d like to say is there really is no significant effect that subdividing these four lots will have on the housing situation in Kona. It€s simply too small a number. The other thing is that these lots will not be inexpensive lots. Even though they€re going tobe cut to half the size of the current lots, they€re still going to be very expensive. So it€s not going to provide affordable housing, it€s not going to provide an alternative to people who are looking for lots in Hawaiian Ocean View Estates, for instance, which came up earlier in one of the statements. So I think that the argument that this is alleviating the housing crisis in Kona is insignificant, I€ll just put it that way. Another statement that was made earlier that I€d like to refute is that there will be no changeindensitybysubdividingtheselots,becausethereareohanasthatcurrentlywould automatically go up in these lots. Now, not everyone who buys a lot wants an ohana. I don€t. I€d rather have a little space around me; and I don€t want to have a renter next to my house. So with the original four one-acre lots, there may or may not be ohanas put in there. It would be up to the discretion of the lot owner. So with this subdivision, there very likely would be an increase in the density. If we look back in the records, the history of the zoning of this original area, it was very recently divided into the 15 one-acre lots. It was also very, very recently, provided with the variance permit to allow ohanas. All right? Originally, with the 15-acre subdivision, no ohanas were allowed; and it was according to this here, November 14, 2003, that the Packs asked for a variance to allow ohanas. So that€s a very recent change, and very soon after the original zoning took place. If the Packs had not applied for these eight water meters, with the expressed intent according to Water Department records of subdividing, not providing for ohanas but subdividing, then there would not be eight water meters available for these lots. And if they had not received the variance last November to allow ohanas, then there certainly would be no ohanas on these lots. So I think the argument that this represents no increase in density is specious. We need to look at another issue here. Tom Pack told me that he used to work for the Planning Department (sic) here in the County. Then we have a professional planner sitting at this table, then we have a Planning Commission sitting before me. So we have a lot of experience, a lot of expertise in planning in this room. Why is it then that this subdivision which was originally put into place very recently, very recently subdivided into 15 one-acre lots, in such a short period of time, then why does it have to be rezoned? What was so faulty about the initial allowance, the initial subdivision, that it requires fixing at this early date, not only that but requires changing? At the same time, the subdivision is being built, people are moving in, people are putting up their houses, families live there, and now in the middle of all this we want to change the character of this neighborhood? And it is a neighborhood. We€ve talked about or the, the two people 11 to my right have talked about how they€ve created Pamahoa Estates with CC&R€s and voting on certain issues. It€s not just some huge subdivision. It€s a very small subdivision with many concerned neighbors that live there. So I just don€t see any justification for this piecemeal and, in my eyes, arbitrary and very short-term subdivision of something that was just subdivided. Another factor that goes in with the timing of everything, which is the timing of the Packs€ request for these additional water meters, and the fact that they did specify on their application that it was for rezoning, okay, and this camewhile the lots were being sold, after the lots were being sold and, in my mind, this represents a possible intent to defraud. Now, this, of course, would be appropriately handled by a judge, but I think it bears mentioning here this morning. Okay, let€s see. In my list, where am I. We do have statements in the CC&R€s and in the salesagreementthatsaythatthePacksreservetherighttochangethezoningor,Ishould say, ask for a change in zoning of some of these lots. I can€t argue with that. However, we also have CC&R€s within this great compact community that ensure measures that maintain the values of the lots within that community. And this rezoning goes against that stated philosophy, by splitting up these lots from one-acre to half-acre flag lots with very long driveways, with utility lines, more blocking of views and, as I stated before, higher density than would otherwise have occurred. What is happening here is they would be reducing the value of the existing lots that have just been built upon, just this past year or starting late last year. So I can see only one reason why Tom Pack would ask to have these lots rezoned, and that is he realizes the obvious fact that he can get a lot more money selling eight lots than he can selling four lots. And I have absolutely nothing against Tom making money, and I certainly can€t have any objection to that, except when it€s at the expense of other people, as it is in this case. So, to sum things up, what€s going on here is we have an arbitrary and piecemeal application for rezoning of a small compact neighborhood community, that has, is still in the process of construction; and the only reason for it is profit at the expense of the people who already live there. So to look at it in the most fundamental sense, if you approve this rezoning application, what you€ll be doing is simply this -- you€ll be taking money out of my pocket and you€ll be putting it into Tom€s pocket, nothing more, nothing less. Thank you, that€s all I had to say. FUJIKAWA:Commissioners, you have any questions with the testifier? If not, you have any questions with the Applicant€s representative? YUEN:Could I make a comment, because the testifier said something about the variance permit which was not correct and he may not understand the process here. During the original subdivision, Mr. Pack requested a variance to allow a non- 12 standard roadway to be built. We did grant that variance, but it was accompanied by a condition that prohibited any of the lots from having ohana dwellings on them. That€s because the Zoning Code says that you can€t put an ohana dwelling on a lot created with a variance. So it€s a standard condition of our subdivision, when we have a subdivision, a variance that creates a sub -. When we grant a variance that is in connection with the creation of a subdivision, we put this clause in the variance just to give notice that this is one of the things that€s going to happen as a result of your having the variance. After receiving the variance, possibly because of this question, I don€t know if that€s for a fact, but possibly because of this, Mr. Pack then said, wanted to withdraw, withdrew the variance request. Then, and if you ask for a variance, you get the variance, you can also decide to reject the variance. He rejected the variance. So the subdivision was built without the variance. There was no, there wasn€t a variance in the building of the subdivision. Correct? PACK:Correct. YUEN:Okay. So the variance was not used to build the subdivision. The standardroadwasbuilt;andhenceasitstandsbeforeyou,thereisn€tanyrestrictionon having ohanas on the existing lots in the subdivision. And then just one more comment right now. There was a question about deferring, let me just explain what, for the Applicant as well as the Commissioners, what the results are and what the options are for the Applicant if you defer. The Code gives the Planning Commission a set amount of time to act on these rezoning applications. Because we missed our, the first time we were going to put this on the agenda, that time runs out st January 1. Now, the Applicant at that point has a choice, if the Planning Commission has not made a recommendation to the Council by that point, the Applicant can decide not to keep the application at the Planning Commission any longer and send it up to the Council. In that event it goes up, the ordinance says that it goes up with a negative recommendation from the Planning Commission. In that case, we simply report to the Council what happened at the Planning Commission and that this constitutes a negative recommendation of the Planning Commission. We also send up the Department€s recommendation and proposed ordinance from the Department. The Applicant can also choose, and that€s their choice, to keep it at the Planning Commissionandgetarecommendation,getavotebyfivemembersofthePlanning Commission, up or down. The Applicant can also, at any point after that, change their mind and still yank it up to theCouncil. So,andontheotherhand,theCommission,avotebylessthan,anaffirmativevoteof less than five of the Commission is a negative recommendation. So if you take a vote 13 here and it€s four to one in favor of the application, that still is a negative recommendation. If after that vote, if you take a vote like that, just for example, and I€m not saying that that€s what€s going to happen, if you take a vote like that today, the Applicant can either say, we will take it up to the Council with that vote and that recommendation because the time has run out, or they could elect to stay here at the Planning Commission and ask for a revote when there are more Commissioners. That would be up to them. SPRINGER:Question? FUJIKAWA:Springer. SPRINGER:Is the converse then true if the motion were to forward an unfavorable recommendation to the County Council and that fails to pass, would that, whatwouldthatbe? YUEN:Thatwouldbe,it€dbeanunfavorablerecommendation,todayit would be, because of there only being five Commissioners here. But if you had a motion to have an unfavorable recommendation and say four people voted in favor of that, I think as a matter of formality, we would still ask for the second motion for the favorable. And, but if the vote was then one to four on that one, then that€s an unfavorable, it€s an unfavorable recommendation. Anything less than five is an unfavorable recommendation. But to give the Council a full picture, we tell them what the vote was so that they understand. If it was done by less than a full Planning Commission, they can look at that, and they can, it€s available as information to them. FUJIKAWA:Do you understand? SPRINGER:Mr. Chair, I understand that I will be making no motion on this agenda item. FUJIKAWA:Any questions, Commissioners, with any of the Applicant€s representative, testifier or the Director? If not, Commissioners, what do you want to do? You have something to say, Pam? HARLOW:Yes, thank you, Chairman Fujikawa. We€d like to respond to Mr. Clausnitzer€s allegations, if that€s possible? FUJIKAWA:You may go ahead. PACK:Well, I think that I would leave most of the response to Pam but I would just like to say that I am livid. I am totally furious. His quote, intent to defraud,‚ his attorney made a similar allegation in the letter. He did not buy the property from us, so there was no obligation from us to disclose anything to Mr. Clausnitzer. However, we got a copy of the disclosure which he signed which said that we may well be applying for 14 a change of zone on those lots. So for him to say that, well, I€mjust livid. That€s all I have to say. FUJIKAWA:Okay. Commissioners? Pam, you have -? HARLOW:Thank you. I won€t take up more of your time; but I believe that st the letter that we wrote on August 31, which is included in your Background Report in response to Mr. Borns€ letter, actually addresses all of the points thatMr. Clausnitzer brought up this morning. We don€t feel that any of his arguments have any merit. FUJIKAWA:Ms. Springer, you have something to say? SPRINGER:No. FUJIKAWA:Nothing? SPRINGER:Uh huh. FUJIKAWA:Commissioners, any questions, comments? If not, Commissioners? McCall? MCCALL:Yeah, I guess, my comment really comes down to the Palani Road. Imean,IdoseetheneedformorehousinginKailua-Kona,Icanunderstandthat.But the Palani Road, to me, is, I feel almost at the point where we would be in dereliction of our duty to approve any more subdivi -. I think Palani Road is a danger, we€re endangering the public by putting more -. I don€t know, I just feel very, very uncomfortable about this situation. You know, if, I mean, I could see this in some other place or I could see if, if there was some promise that Palani Road would be made a four- lane highway at some point, at some point in the near future; but the reality is I really, you know, there just isn€t, the money isn€t out there. I€m, yeah, I, if we need to make a motion, I€d be willing to make a motion to send an unfavorable recommendation and see where they -. FUJIKAWA:Your comments and the motion will be applied toward the Council so they get to look at it; and they do the final decision, anyway. MCCALL:Yes, yes, okay. SPRINGER:Second. FUJIKAWA:Council people. SPRINGER:I second. FUJIKAWA:So you made a motion of -? 15 MCCALL:Yeah, I guess, yeah. So I€ll make it official. I€d like to send an unfavorable recommendation to the County Council as far as the Change of Zone application, REZ 04-018. FUJIKAWA:Okay. A motion has been made -. SPRINGER:Second. FUJIKAWA:By McCall and seconded bySpringer that this would be an unfavorable recommendation to theCounty Council. Any questions? If not, Jeff? DARROW:Thank you, Mr. Chairman. Before I take the roll call, I need to address a couple of typos. I don€t know what happened in this application but when it comes to dates, I missed a few. On No. 5, as Pam had earlier brought to our attention regardingNovember14,2003.Also,ifyouseeattheendofthat,itsaysSeeExhibitB, thstth letters dated November 14 , November 21, December 15. Those should all be of th 2002, and I€ll make the correction on the Background. And the April 8 should be 2003. I think I was just thinking in the present at that time and put everything at 2004, but I apologize for that. FUJIKAWA:Okay, we have it corrected. Okay, that was corrected. Go ahead. DARROW:I€m sorry, Mr. Chairman. Commissioner McCall? MCCALL:Just making sure. So an aye, it€s a aye to an unfavorable recommendation? DARROW:Correct. MCCALL:Okay. Aye. DARROW:Commissioner Springer? SPRINGER:Yes. DARROW:Commissioner Alameda? ALAMEDA:Aye. DARROW:Commissioner Smith? SMITH:Yes. DARROW:And Mr. Chairman? FUJIKAWA:No. 16 DARROW:The motion does not carry. FUJIKAWA:Okay. The Applicant, the representative, you€ll be informed in writing. HARLOW:Thank you. YUEN:And to clarify what happens here, it€s the Applicant€s option because we don€t have another meeting before the time limit for the Planning Commission runs out. It€s, the Applicant has the option of keeping the matter here at the Planning Commission and asking, and having it heard again and taking another vote, or taking this up to the Council as an unfavorable recommendation. We€d appreciate it if you€d let us know. If you let us know soon, we€d be able to put it on the January agenda, ifnecessary. HAYASHI:Yes. YUEN:Yeah.Whatwouldbe,howmuchtimewouldwehaveforthat? HAYASHI:BynextweekWednesday. YUEN:Okay, okay. You can work with the Applicant on that decision. If you decide, you know, if you decide to take it up to the Council, we would not -. We st don€t send that letter actually until the time runs out, which, I think, is January 1. If you do want to keep it here and have it heard again at a meeting in January, please let us know very soon. HARLOW:We certainly shall. Thank you. The discussion ended at 11:43 a.m. Respectfully submitted, Sharon M. Nomura, Secretary 17