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HomeMy WebLinkAbout2003-12-04 TPuuLaniRanch PLANNING COMMISSION COUNTY OF HAWAIÒI HEARING TRANSCRIPT December 4, 2003 A regularly advertised public hearing on the application of PUU LANI RANCH, INC. (SPP 626) was called to order at 1:20 p.m. in the Hapuna Beach P 62-100 Kaunaoa Drive, Kohala Coast, HawaiÒi, with Chairperson Fred Galdones presiding. PRESENT:Fred Galdones ABSENT & EXCUSED: William Graham Earl Fujikawa Florence Kubota Jeffrey McCall Aurelio C. Mina, Jr. Francis Smith Hannah Springer Bill Thibadeau Pat OÓToole, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler representing Department of Public Works And approximately 20 people from the public in attendance. APPLICANT: PUU LANI RANCH CORPORATION (SPP NO. 626) Request for a two-year time extension to Condition No. 4 (termination date of Special Permit), which allowed the establishment of a temporary on-site approximately 0.25 acre situated within the State Land Use Agricultural District. The property is within the Puu Lani Ranch Subdivision located on the mauka side of Highway 190 and the Big Island Country Club Golf Course, Puuanahulu Home Hawaii, TMK: 7-1-5: portion of 7. Mr. Darrow directed the CommissionÓs and publicÓs attention to the location map and indicated the subject and surrounding properties in the Puu Lani Ranch Subdivision in Puuanahulu. DARROW:Looking at the site plan, this is just a general site map that they had submitted previously for the temporary sales office. As you ent you will have a quarter-acre area thatÓs designated for this temporary on-site real estate office, as well as security office. EXHIBIT C The Applicant in this case, Puu Lani Ranch, Inc., is requesting a time extension to Condition No. 4 for Special Permit No. 626. This permit was originally approved on September 10, 1986 for the construction of a temporary on-site real estate office to be able to sell the lots for the Puu Lani Ranch Subdivision area. At this time, the Applicant is requesting a two-year time extension to sell the remaining 18 unsold vacant lots that are left in both Phases 1 and 2. We have received a Petition for Standing in a Contested Case Hearing from Jeanne OÓBrien. And I wanted to mention as well that we also, the Planning Director has handed out a copy of the recommendation to you, and the Planning Director is recommending approval of the request with conditions, amendment to Condition No. 4 which will state a two-year extension, the effective date being the effective date of this fourth amendment. This will be the fourth request for time extension. And he is adding Condition No. 5, which will be in relation to archaeological sites in Puu Lani Subdivision, Phase 2. Are there any questions? GALDONES:Commissioners, any questions of Jeff? Will the Applicant or its representative, please come forward. Sir, 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? LEAS:I do. GALDONES:Sir, could you please state your name and your residence address. LEAS:IÓm Philip Leas, I live at 2141 Mohala Way, Honolulu. GALDONES:Mr. Leas, have you received the copy of the Background Report and the Recommendations, and do you have any comments from that, on those documents? LEAS:I received the Background Report. I have not received the Recommendations and have not received the Condition 5 that was just mentioned. GALDONES:Jeff, could we see that Mr. Leas has a copy of that, please. Mr. Leas, I will give you some time to go over the document. LEAS:Okay, I read it. GALDONES:Do you have any comments in reference to the Recommenda LEAS:Well, the new Condition No. 5 is unrelated to the space where the sales office is situated. In fact, the sales office is outside of the subdivision, itÓs not even within it. And I know that there are concerns that the Planning Director may have, albeit the burial sites within Phase 2 of Puu Lani Ranch. But IÓm not sure I can justify the 2 linkage between the sales office, which is an existing very benign, actually attractive and functional purpose, and this other agenda, which is to deal with burial treatment plans that I think would affect a number of lots that are no longer owned by Puu Lani Ranch Corporation. Mr. Yuen spoke with me a little bit ago and suggested that his staff really has a need for a map delineating where the burial sites are on the tax map, and I can understand that. And IÓll discuss that with the company to see if, well, weÓd have to discuss that not only with the developer but also with the lot owners to see if they would agree, if we were willin to have the sites surveyed, if they would agree to give us access to do that. So, the problem with a condition like this is we might not be able to satisfy this sort of a condition because it is sufficiently unrelated to the request and itÓs unrelated to this specific site. So itÓs kind of like asking us to, you know, install something off-site or do something off-site or else we canÓt continue this existing sales office activity. So that would be one of my problems with agreeing to a condition, is having you think that we could comply with it, because IÓm not all sure that we can. GALDONES:Mr. Yuen? YUEN:We furnished this recommendation even though we knew thereÓs a Contested Case and we know that most likely the Commission will have to deal with the Contested Case today. The reason for furnishing this, despite the Contested Case, was to give notice to the Applicant and the Commission that this is where the Department is coming from in this situation because there has been an on-going long-term problem with the subdivision that IÓll explain in just a minute. But we did want to give notice that this is what we would want to see if we were to, if the Commission is to go ahead with this. Also, being a time extension, if we, if you defer action for the Contested Case, unless the permit is, unless we move to shut down the, the normal course of events would be that the sales office would continue during the pendency of the Contested Case and, you know, in effect that they would have the, what they want while the Contested Case is going on, which could be some considerable period of time. Let me explain the problem that happens with this subdivision. Final Subdivision Approval, there is a condition that said that they should comply with all the requirements of the State Historic Preservation Division. At that time there was a correspondence from State Historic Preservation Division that the Applicant was supposed to complete a burial treatment plan and archaeological the sites that are on the property, specifically there are a number of burial sites on the property and thereÓs an archaeological preservation site. This was back in Ó93-Ó94. You should have a letter from SHPD that was written the last couple of days that explains this. The Applicant, the developer of the subdivision did not do the burial treatment plan. Instead, they pushed this off to their purchasers of their lots. As a result, and the difficulty, the DepartmentÓs mistake was to allow this as a condition that would be done after Final Subdivision Approval. Because when you get Final Subdivision Approval, you can sell off the lots; and itÓs very difficult to then have a remedy against the 3 developer after they sell the lots. And, so, what has happened in the subdivision, because thereÓs no, there is an archaeological map that shows the burial sites but you canÓt take that map and compare it to the subdivision map and see where those burial sites are on the lots. So the result has been that whenever somebody comes in for a building permit or a grading permit, State Historic Preservation Division has to go out, you know, on an individual lot-by-lot basis and check to see that the burial sites are not being affected. This creates a, this subdivision has caused a great deal of staff work for SHPD and also for our own Department in trying to make sure that the burials are protected in the development of the sites. So the solution of, if we can work this out with the developer -. It is true that many of the lots that have the burials have been sold and the, it -. I can see now that the burial treatment plan could be done by the individual lot owners. But we would want a map done by the developer that shows where the burials are on the subdivision map. So that when people come in for a grading permit or building permit, we like, with other subdivisions where this is done properly before thereÓs a subdivision approval, we can check that, and clear the lot at the office without having to run out and actually double-check it on the ground. So thatÓs the main purpose behind this; and we are, it is, we are talking about the sales office for the same subdivision. So thatÓs why weÓre tying it to this particular request. GALDONES:Mr. Leas? LEAS:Yeah, if I may. One thing that I think may not have been entirely fair about Mr. YuenÓs presentation is that a year ago, in September 2002, we got a letter from SHPD, they gave us a clean bill of health on complying with the after-the-fact subdivision conditions that were imposed in 1993 when the subdivision was approved. And just yesterday, I received by fax the letter that was most recently issued by SHPD on the same subject which ignored the letter they gave us a year ago, and which frankly said they really had no objections to the sales office use. But then it went on to say essentially what Mr. Yuen has just said about the after-the-fact conditions of the subdivision approval in 1993. The developer in this instance spent about 10 years, hired three archaeologists and two cultural consultants, went through the survey procedure and very openly with SHPD went forward with some of the sales, always with the understanding that the recommended treatment for identified or suspected burials was preservation, but that weÓre only selling vacant lots and that the ultimate lot user would be the person with the most direct vested interest and best position to agree to recommend and be happy with a treatment plan. And weÓve had one owner who has actually completed that process, and we know which lots are affected by this. And the owners who bought the lots have received breaks, you know, price breaks, significant price breaks to adjust for the way this has been handled. And with all of that background, a year ago, we got a clean bill of health from SHPD. Now I donÓt, I donÓt question at all Mr. YuenÓs concerns about staff time and the lack of clarity perhaps between the archaeologistÓs work, which is not done on the tax map; and so, sitting in an office in Hilo, they may have some difficulty telling just exactly where a 4 suspected burial site is. And, so, I think thatÓs a fair request not related to the office use, but a fair request. Otherwise, just in the on-going business relationship between the Planning Department and the developer to suggest that we help out and have some further mapping done, but, again, even though those are important items and well worth discussing, I donÓt think theyÓre fairly connected to the sales office extension. GALDONES:Mr. Yuen? YUEN:The September 2002 letter does not give the developer a clean bill of health. It says that the inventory survey and the significance assessments are adequate. ThatÓs just two stages in the process. The process there is you do an inventory survey, which is the survey thatÓs meant to find the sites. SHPD said, ÐGood, you did that, you found all the sites.Ñ Then the second part of that is the significance assessment. They said that ÐThese sites are significant and should be preserved.Ñ They said, ÐYes, they should be preserved.Ñ The earlier correspondence from SHPD says, and the normal requirements are you then have a burial treatment plan and a preservation plan that sets the buffers for the sites and maps them out on the lot so that you know where they are and that you donÓt -. So they did not do, they did not fulfill the requirements of SHPD as stated in their earlier letters. This is a letter that you will find that accepts what theyÓve done as completing two of the stages in the process, but not all of them. GALDONES:Any further comments, Mr. Leas, before I move on? LEAS:No, I think I would just be repeating myself. Perhaps thereÓs a sincere misunderstanding between the way I read the letter and the way Mr. Yuen reads the letter. But I donÓt think we should debate here in the context of the sales office. GALDONES:Okay. Commissioners, any question of Mr. Leas? No. As you folks have heard from Jeff that there is a Recommendation and, also, the Petition for Standing in a Contested Case Hearing. IÓm not so sure if Ms. OÓBrien is aware of the recommendation. So, Commissioners, before we act on the Petition for a Contested Case, I would like to hear her. Then if she decides that she wants to still maintain her position and have us act upon the Petition for a Contested Case, then we shall do so; and, also, ask the Petitioner whether she is prepared to make a case today or she wants to delay the hearing. So thatÓs the procedure that IÓm considering with -. If thereÓs any other suggestions or thereÓs any objections? Mr. Yuen? YUEN:I just want to make sure that nobody misunderstood. We are trying to bypass the Commission dealing with that Petition for a Contested Case Hearing. I expect that the Commission has to deal with that first. GALDONES:Understood, Commissioners? Okay. We had, Ms. OÓBrien had signed up to testify on this matter, so, Mr. Leas, if you would yield the microphone to her. 5 OÓBRIEN:Thank you. GALDONES: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? OÓBRIEN:Yes, I do. GALDONES:Could you please state your name and your residence address? OÓBRIEN:My name is Jeanne OÓBrien and my address is P.O. Box 4004, Kailua-Kona, Hawaii 96745. GALDONES:Ms. OÓBrien, were you aware that the Recommendation was given, with conditions, by the Director? OÓBRIEN:No, I wasnÓt, until I saw it on the table earlier this morning. GALDONES:Did you have an opportunity to go over the Recommendati OÓBRIEN:Yes, I did. GALDONES:In spite of that, maybe not in spite, may not be the pr terminology, but having read the Recommendation, is it your posi with your Petition for a Contested Case Hearing? OÓBRIEN:Yes. GALDONES:Are you prepared to proceed today with this or you would need some time to prepare for your case? OÓBRIEN:I would like to be able to testify as a member of the public today on this issue and then proceed with the Contested Case. GALDONES:If that is your desire, then just let me just give this, offer this to you for consideration. In the Contested Case Hearing, if we are going to proceed with it and if we approve it and proceed with this on a later date, then your testimony will be given to a Hearings Officer; and the Hearings Officer will make Findings and the Recommendation to the Commissioners. So if you choose to make a IÓm not stopping you from doing that. We will be waiting for the Hearings Officer Recommendation and it will be given a lot of weight, on the Findings and the Recommendations of the Hearings Officer. But if you choose to do so, that you want to do it today, too, you know, that is your prerogative and thatÓs your privilege to do so, also. 6 OÓBRIEN:Thank you. I do think that there are issues in this matter that affect me personally, which I believe is the reason that I have standing to bring, to request a Contested Case. But there are also issues related to the public interest which I think the whole Commission would need to hear; and IÓd like to be able to present those. GALDONES:Okay. That being the case, Commissioners, then I would like to deal with the Petition first, then open up for testimony. Commissioners, thereÓs an Appendix A, which is a Petition for Standing in Contested Case Hearing submitted by Jeanne OÓBrien. Jeff, it has met all the requirements to be considered as a Petition before us? DARROW:Yes, it has, Mr. Chair. GALDONES:Commissioners? KUBOTA:Mr. Chairman? GALDONES:Commissioner Kubota? KUBOTA:I have received, I have in my hand the Petition for Stand party and, also, along with it I have a testimony that I received this morning which further delineates her reasons for asking for standing; and it has nothing to do with the problem that was just discussed awhile ago in terms of preservation. A lot of it has to do with the water situation and the operation of bringing the infrastructure up-to-date. And looking at the first Petition for Standing, her reasons didnÓt seem justified; but reading her testimony that was presented to us today, I feel as though she clearly has some other problems other than, where she talks about a direct adverse effect, I guess sheÓs talking about the water situation and the infrastructure that needs to be updated. So I feel that she clearly qualifies as a, for standing in this particular instance. GALDONES:In that light, Commissioner Kubota, are you -? KUBOTA:IÓm moving -. GALDONES:Introducing that into a motion? KUBOTA:I could if this is the end of the discussion. I just -. GALDONES:It wonÓt close the discussion. You may make a motion -. KUBOTA:All right. GALDONES:And weÓll have it seconded -. 7 KUBOTA:Then I move that Jeanne L. OÓBrien be given standing in a Contested Case Hearing for this application, which is, let me get it formally, for the Special Permit, amendment to Condition No. 4, No. 626. GALDONES:Do I hear a second? FUJIKAWA:I second it. GALDONES:It has been moved by Commissioner Kubota and seconded b Commissioner Fujikawa that the Petition for a Contested Case Hearing by Jeanne L. OÓBrien be granted. Discussion? Hearing none, Jeff? DARROW:Thank you, Mr. Chairman. Commissioner Kubota? KUBOTA:Aye. DARROW:Commissioner Fujikawa? FUJIKAWA:Aye. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Mina? MINA:Aye. DARROW:Commissioner Smith? SMITH:Aye. DARROW:Commissioner Springer? SPRINGER:Yes. DARROW:Thank you. GALDONES:Jeff, excuse me. ThereÓs a procedural problem here. I have to retract what I earlier stated. I need to allow the Applicant an opportunity to testify for or against the motion. Mr. Leas? IÓm sorry, Jeff. LEAS:ItÓs sort of difficult to do it this way but, factually, I thought that the Commission should be aware of what I believe some of the facts are as to Ms. OÓBrienÓs relationship to the sales office property in particular. It is true that she owns a vacant lot at Puu Lani Ranch, not even within the 500-foot radius that was on the 8 mailing list for this particular application. She does not live there. ItÓs a vacant lot. And I would have, I would encourage the Commission to treat her as a member of the general public for this purpose. And acknowledging Commissioner KubotaÓ yes, she has a meaningful interest in the water system, the water system has no relationship, really, to the sales office, except there is plumbing to it. So those were the comments I wanted to make as to urging the Commission to recogni with proper standing but, really, not that much different from any other member of the general public. So IÓm sorry that I didnÓt get to talk first. GALDONES:ThatÓs okay. That was my problem, my fault. Jeff, in light of Mr. LeasÓ testimony, does the 500-foot radius have any impact on her eligibility? DARROW:She is a lot owner of Lot 15. I would have to check the, if she, were you notified? OÓBRIEN:I read about this in the newspaper. DARROW:Okay. So you werenÓt actually notified by letter of the pending hearing and the application? OÓBRIEN:No. DARROW:Okay. Again, I guess this would be up to you folksÓ decision whether or not she has standing. She did submit the request for standing, along with the check and she is claiming that she is a lot owner within Puu Lani, apparently, not within the 500-foot radius of the temporary sales office, but a lot owner within the subdivision. GALDONES:Thank you, Jeff. I would like to ask our counsel for a ruling on, on her eligibility. OÓTOOLE:I think the question is not the distance but whether she has, she can state that she has an interest distinguishable from that of a general public. I know, usually, if they are within that distance, you pretty much have granted standing. But outside of it, then weÓre looking at the same question, is the, is her interest distinguishable from that of the general public. And you can ask her to articulate what that is. GALDONES:Ms. OÓBrien, having heard the discussion, would you be able to inform the Commissioners why you should be considered outside of the general public? OÓBRIEN:Yes, thank you. ItÓs my understanding that the County Code allows someone, as Ms. OÓToole has stated, who has an interest distinguishable from that of the general public. My interest may be similar to other lot owners in the subdivision. I know that there are at least 65 owners right now. But those owners, in my opinion, have, all of us have an interest in this issue that is distinguishable from the general public, 9 which is the rest of the people in the County who you represent. And because of that, IÓve mentioned in my written testimony that one of the major con personally with our lot is that we bought the lot, we wanted to do agriculture on the lot, but we have been told by the people that are in charge of the water and looking at the water situation, that if all the lots are sold there will be no capacity for the water system to provide water to everyone. Also, with the present price of the water that is being charged by the private water company illegally in violation of the PUC regulations that have established the rates, that we canÓt do agriculture there; and this is supposed to be an agricultural subdivision. So my interest is in making sure or doing whatever I can to prevent, or to discourage, or to inform the rest of the citizens that this continued sales of lots in this subdivision is going to make, is going to victimize me personally and all that I have put into this lot financially and otherwise, as well as my, which I think is separate from the general public who will be victims if theyÓre able to go and buy a lot without the full disclosure that there isnÓt enough water in the fire hydrants, for example, that theyÓre merely, as far as, basically, decorative items, that weÓve been told that thereÓs between two and five minutes of water that will come out of those fire hydrants in the event of a fire. And, so, I donÓt want to put in all my savings and so forth into my property there to build a house and, or a farm, and then have it burned down Òcause we canÓt get water out of the fire hydrant right in front. I think that something is happening with this development. The water company is owned by Mr. Newell Bohnett solely. He has bankrupted the water company and he has raised the rates, as I said, over and above the PUC rates. And, so, if the County wants to allow this developer to continue selling these properties and ask the County to help facilitate, I believe that that was in their petition to help facilitate the sales of the rest of these lots, the County, in my opinion, would be in complicity with this developer to victimize these innocent people that might be looking at those beautiful lots up there. So thatÓs, itÓs not my full testimony about this issue; but I believe that my interest is distinguishable from the general publicÓs interest which gives me standing. GALDONES:Thank you, Ms. OÓBrien. Commissioners, any further discussion? Hearing none, Jeff? DARROW:Should we -? GALDONES:On the motion. Because we had further testimony, then voting all over again, please. DARROW:Thank you, Mr. Chairman. Commissioner Kubota? KUBOTA:Aye. DARROW:Commissioner Fujikawa? 10 FUJIKAWA:Aye. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Mina? MINA:Aye. DARROW:Commissioner Smith? SMITH:Aye. DARROW:Commissioner Springer? SPRINGER:Yes. DARROW:Commissioner Thibadeau? THIBADEAU:Aye. DARROW:And Mr. Chair? GALDONES:Aye. DARROW:The motion passes, eight to zero. GALDONES:Thank you, Jeff. Ms. OÓBrien, you have been granted standing for a Contested Case Hearing. OÓBRIEN:Thank you very much. GALDONES:I understand that you would like to postpone the hearing, the Contested Case Hearing to a later date so, to allow you the opportunity to prepare. OÓBRIEN:ThatÓs correct. GALDONES:Okay. You also had signed up to testify. I donÓt know if you have, whatever you said earlier if that was your testimony or you have something else that you would like to offer to the Commissioners? OÓBRIEN:Yes, I do have further testimony if IÓm allowed to speak further? GALDONES:You may proceed. 11 OÓBRIEN:Thank you. This morning I was able to read the petition and the previous approvals for the four extensions to sell these lots. One of the special conditions was that the sales shall not include resale of lots previously s know of at least one lot that was repurchased by the developer, is in the process of being subdivided and is going to be resold. I donÓt know how that is. To me that may be a violation of the previous specific conditions. Also, it was stated there are approximately 18 lots that need, remain unsold. But I looked up on the, or I had my realtor look up on MLS today and thereÓs only one developer lot for sale thatÓs active. ItÓs Lot No. 85 for $237,500. There are six other lots in the subdivision that are for sale today and those are resale lots. So the necessity of allowing this to go forward, I believe, is in question because of that fact. The public records state that Puu Lani Ranch Corporation actually owns only six lots now. And one of those lots is Lot 127, which is a 29-acre piece being planned to be subdivided into a Phase 3, and that this extension of the previous variance to allow this in an ag zone, based on 18 sales, I think is really, and for a two- year period, is actually going to incorporate the new third phase. And thatÓs what theyÓre really going for here. Also, there was a special condition that this would not burden public agencies. Well, as IÓd like to state further, the, as I mentioned that the fire hydrants donÓt have water to them. ThereÓs a beautiful new fire station, volunteer fire station building, thatÓs right across the street. But thereÓs no fire truck, thereÓs no pumper truck, thereÓs no tanker that is stationed there, and no firefighters. And with no water in the subdivision, the County is going to be relied on to come up from Kona or Waimea; and when they get there thereÓll be no water for them to fight the fires. And I think the liability for the County and, would be, you know, potential for that because they havenÓt done anything to this developer to make him comply with -. I believe there was an original condition in the subdivision to supply fire hydrants and water. ItÓs inconceivable that it could have, that this subdivision could have been permitted without a requirement provided, be it through the private water system or for any other way. IÓm objecting because I believe thereÓs no public necessity to make such an amendment, nor is it in the general welfare of the public. The only beneficiary may be the Applicant, who would be able to, whoÓs now resubdividing these lots, reselling them and not, in my opinion, fully disclosing the dire circumstances of the water situation. ThereÓs further no special or unusual circumstance applying to this particular subdivision which would warrant allowing an otherwise non-conforming use of agricultural land. And until that critical issue of water is addressed by the applicant/developer, the County shouldnÓt facilitate further sales of the lots by allowing the sales office to go on for another two years. The County will have a lot more victims besides me and the other lot owners. 12 The private water system thatÓs servicing the subdivision and the community, I noticed in the CountyÓs report it said that any water problems should be referred to the private water provider. Well, as I stated, the sole owner of that water system is Newell Bohnett, who has bankrupted himself as the sole creditor, in my opinion, to avoid his obligation as the developer to provide the infrastructure at his own expense. His idea, Mr. Bohnett if you donÓt know is also the President, Treasurer, Director and Agent- Lani Ranch Corporation. He has threatened us, and I heard this personally from him, with locking up the water if we didnÓt agree to buy him out or pay the amount he wanted, which is over and above what the Public Utilities Commission has established would be fair and reasonable. So, basically, we have to give up our rights that we have under the PUC to protect us and allow a rate thatÓs now $13.50 per thousand gallons. There are some discussions that, you know, people are trying to work on this problem; but the idea that he has right now is that heÓll turn it over to a non-profit agency. The non-profit agency will apply for grant money and the public, basically, through these grants, Federal grants or whatever, would improve and update the water system. But those ideas are, even if they have been, are going to take a long time if they ever do and the system is actually brought up to par and to the capacity that we need to do the lots. The present water system is in deteriorative state; and now, and if all the lots are sold, it will be incapable of providing water to everybody at full build-out. Now I donÓt know if youÓre all familiar with that subdivision but there are some, the requirement under the covenants is that you have to build in Phase 2, a 1,500 square foot house; Phase 3, a 2,500 square foot home. So these are big homes, theyÓre going to have more than two or three bathrooms. There ares swimming pools and so forth that are supposed to be able to be provided with water up there; and they wonÓt be able to under this system. We donÓt want to have to haul bulk water from the State or County water wagons to our home which has been proposed to be the solution if Mr. Bohnett is allowed to close down the business and all the lots are sold. But the fire hydrant situation, the water situation for fire protection is a matter of utmost importance to this Commission because of the extreme fire danger that is in that area, as you know. There used to be, when this was approved originally, there was a reservoir. They called it the lake up at Puuwaawaa Ranch, that the tank when it overflowed would go over to the reservoir. Well, the present water system allowed that to run dry, deteriorate, get hole in it; and, so, thereÓs not, itÓs not capable of carrying water. And the result of that is that that was the water they were using to fight fire. So you canÓt have the helicopters or whatever go scoop water and dump water anymore out of that reservoir, or otherwise have it provided to the fire hydrants. In the packet I did submit, there is a fire wise program information sheet that was sent to all of us that states that 55,167 acres of land in North Kona and South Kohala have burned since 1990 and that this subdivision is right in the middle of that. So this fire concern is a grave concern to the public. And itÓs my opinion that the County shouldnÓt 13 be left footing the bill or the public shouldnÓt be left footing the bill for the fire protection infrastructure that should be provided at the developerÓs expense. In the packet there are two other documents, one is the study done by Island Utility Services dated April 2003 that shows photos and describes the deterioration and corrosion of the present waterlines that most of the original pipes are coming close to their life expectancy. It also discusses the problem with the reservoir and that the cattle have gouged unfenced tanks causing leaks, and that the tanks themselves are in poor condition. They have 21 different corrective measures just to bring the present system up to speed, but there has also been information that if the subdivision is fully sold out, the present capacity of the present system, even if it was brought up to its present ability, would not be enough water for the 155 lots that are going to be using it. There needs to be additional tanks, larger pumps, energy-efficient electrical, apparently the electrical energy is being allowed to escape, mainly to rebuild the reservoir and other improvements. And so sales in subsequent building of what he says is 18 more lots, but, you know, maybe less than that, and the 30 lots that he wants in the third phase, which I understand heÓs going forward with, would break the back of this present system and cause not only me but all the other owners in that system whoÓve hooked up, including the community people around in the Puuanahulu area. Those people are also hooked up to that system, and they wonÓt have enough water for normal resi agricultural use is out of the question. The other paper that I brought is the Puuwaawaa Waterworks Puu Lani Advisory Committee paper. This was what the community had kind of got together and has tried to work with Mr. Bohnett to try to solve this problem. Their conclusions is that: ThereÓs no repair or replacement services established for the future for the 155 lots that are using this system, thereÓs a present question of capacity and operating efficiency, the system needs to be upgraded, and that the present water company does not have a long-term business or operational plan. So this subdivision is supposed to be an agricultural subdivision. TheyÓre zoned Ag-1 lots up there, but thereÓs no provision to add water in that subdivision. And weÓre all, IÓm sure youÓre all aware of what happened at Hokulia with Judge Ibarra saying that that was supposed to be an ag subdivision but it really was a residential subdivision and, so, therefore, it was illegal. And so I donÓt think youÓd want to be involved in helping that, either. The situation will be worse and the citizens will be victims, the public will be victims, thereby causing a critical situation for the County to deal with at the publicÓs expense; and I donÓt think itÓs in the public interest. And I hope youÓd agree with me that we need to discourage further sales in the subdivision until these critical infrastructure issues are remedied by the developer; and itÓs the developer thatÓs coming forward here and asking for yet another variance, an amendment to this ag-zoned property. And itÓs, and I think also that the Coast View Subdivision is something that you might be familiar with, too. They had kind of like a similar water problem where the developer there didnÓt put in an 14 adequate water system and the County ended up having to bail out and help out all those citizens down in Coast View to get the water system going at the public expense. So it has been our personal experience that we were not given full disclosure when we bought the lots, when we bought our lot. Other people that weÓve talked to in the subdivision had a similar experience. We were only told that there was a PUC case and that that had been resolved. That lack of full disclosure is, I think, would have to continue; and we can presume that it would continue in some form in order to sell these lots. Because no one would buy a lot that doesnÓt have water or, you know, the ability to fight a fire if it was necessary, unless it was disclosed that you need of a catchment and so forth. This has been sold to the public as having water. Mr. Bohnett appeared at the last HomeownerÓs Association meeting and didnÓt disclose that he had filed bankruptcy for the water company, and he had already filed it and water was on the agenda. So this lack of full disclosure and, as Mr. Yuen had mentioned, kind of on-going problems with them telling them to do something and I believe, is going to continue. And it seems that for the County to facilitate the lots under these circumstances, knowing whatÓs going on there now, that it could avoid its own possible appearance of complicity in these sales and potential liability in what might be unfair trade practices. Because we would think that this Commission would require this applicant to prove that they are in compliance with the original subdivision requirements, including that water and fire hydrants with water in them are available before facilitating them selling any more that might put everybo So IÓm, again, urging the Commission to please deny it, that the continued use of the ag land for commercial office will materially be detrimental to the continued sales of lots will cause a substantial adverse impact subdivision lot owners and to the public, and that thereÓs no immediate need for this applicant to have a non-conforming commercial use of agricultural land. I also wanted to say that I understand that Kay Nichols, who is here with Mr. Leas, is, she sells these lots, she lives in Mr. BohnettÓs house. I like her personally, I donÓt mean to interfere with her at all. But I feel that this is so important to the public interest that I had to come forward and inform you, because youÓre the ones that can this developer, that is, in my opinion, trying sell off these lots as soon as possible, and get out and leave the County holding the bag. GALDONES:Thank you, Ms. OÓBrien. OÓBRIEN:Thank you very much. GALDONES:Commissioners, any question of Ms. OÓBrien? If none, thank you. Mr. Leas, having heard the testimony, do you have any closing comments that youÓd like to make? 15 LEAS:I would have a lot but if I understand this correctly, the Commission is not going to make a decision, this is going to be referred to a hearings officer, and heÓs going to make a recommendation? GALDONES:That is correct. LEAS:Okay. Well, then, IÓll be very brief at this point, but I wouldnÓt want you to leave thinking that even half of what Ms. OÓBrien said was really true. She didnÓt pay her water bill, had her water shut off and now weÓre having to hear all of this. The fire hydrants, the most important thing I want to assure you about is the issue of public safety. The fire hydrants are fully charged as youÓre probably well aware for a subdivision such as this. The system had to be completely redundant, we have not only 100 percent of the water needed to fully build out the entire subdivision, we have 200 percent of the water that we need. Ms. OÓBrien, of course, has no expertise but was purporting to give you information that would require expert testimony. The last time that we were aware of that the County used our hydrants to fight a fire which was not within the subdivision, incidentally, but was outside the subdivision, which is not the subdivisionÓs responsibility whatsoever, they drew water from th like seven hours. And, but we can have the hearings officer listen to the Fire Department people and to the water experts. But I wouldnÓt want you to be concerned that thereÓs a water problem. If you donÓt pay your bill, yeah, you might have course, that has virtually nothing to do with the sales office that I can discern. And I think with that, that being really the most important point that should not have been left without clarification, IÓll just withhold further comment and testimony until we have the hearings officer handle that. Unless there are any questions, I would be happy to address any other specific concerns that you may have as a result of things that she said. GALDONES:Thank you, Mr. Leas. Commissioners, any question of Mr. Leas? If not, then, in consideration that we have approved a Petition for a Contested Case Hearing, this hearing, this matter will be continued. And moving forward on the Contested Case Hearing, what is the desire of the Commission, the desire is to hear the Contested Case Hearing or do we farm out the hearings officer to an outside contractor? MCCALL:Hearings officer. GALDONES:Commissioner McCall? MCCALL:I move that we hire, direct the Planning Director to hire a hearings officer to hear this. GALDONES:Is there a second to his motion? SMITH:Second. 16 GALDONES:It was moved by Commissioner McCall and seconded by Commissioner Smith that we hire a contractor to be the hearings officer. Discussion? Commissioner Springer? SPRINGER:I would ask the Planning Director how our budget is with regard to outsourcing the duties of the hearings officer? YUEN:We have funds in the budget to cover that. SPRINGER:Thank you. GALDONES:Any further discussion? All those in favor of hiring an outside contractor to be the hearings officer, say aye. COMMISSIONERS:Aye. GALDONES:Oppose, nay? Motion carried. The discussion ended at 2:00 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 17