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HomeMy WebLinkAbout2003-12-04 TSCDKahakai PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT August 1, 2003 A regularly advertised public hearing on the application of SCD KAHAKAI, LLC (SMA NO. 304)was called to order at 4:58 p.m. in the Hapuna Beach Prince Hote 62-100 Kaunaoa Drive, Kohala Coast, HawaiÒi, with Chairman Fred Galdones presiding. PRESENT:Fred GaldonesABSENT & EXCUSED: Bill Graham Earl FujikawaFrancis Smith Florence Kubota Hannah Springer Jeffrey McCall Aurelio C. Mina, Jr. Bill Thibadeau Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Norman Hayashi, Staff Planner Daryn Arai, Staff Planner Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Kiran Emler representing Department of Public Works And approximately 14 people from the public in attendance APPLICANT: SCD KAHAKAI, LLC (SMA NO. 304) Request to amend Special Management Area Use Permit No. 304 by increasing the number of allowable residential lots from 98 to 101. The area involved includes the Kahakai Estates Subdivision situated along the southwest (makai) side of Kuakini Highway and north-northeast of Kahakai Elementary School, Puapuaa, North Kona, Hawaii, TMK: 7-5-20:78 (formerly portion of 7-5-20: portion of 1). GALDONES:Commissioners, we are on Agenda Item No. 6, Applicant is SCD Kahakai, LLC (SMA No. 304). ItÓs a request to amend Special Management Area Use Permit No. 304 by increasing the number of allowable residential lots from 98 to 101. Jeff? DARROW:Thank you, Mr. Chairman. If I could direct your attention to the location map, weÓre looking in the North Kona area for this application. Just for reference, this is Queen Kaahumanu Highway, running in the north-south direction. Lower than that, makai, we have Kuakini Highway, running in a north-south direction and, again, even more makai we have Alii Drive. The application that weÓre looking at is in this area identified as Kahakai Estates. This area in green is Kahakai Elementary School. The red dot signifies the area that is going to be requested for this particular application. EXHIBIT G Looking at the site plan, where the red dot is identified in the location map that is identified here on the site plan, this is Lot 100 in the Kahakai Estates Subdivision. The request by the Applicant, SCD Kahakai, LLC, is to increase the allowable residential lots from 98 to 101. This will done by subdividing Lot 100 into thre The SMA 304 was actually, was originally approved in November 8, lots and related improvements. Later it was amended in 1999 to reduce the density from 353 lots to 98 lots. Again, this request is to increase that from 98 allowable residential lots to 101 allowable residential lots. The Planning Department has received two petitions for hearing for standing in contested case hearings, one from Richard Bosselmann and one from Kevin Cawley. Are there any questions? GALDONES:Commissioners, any questions of Jeff? KUBOTA:Mr. Chairman -. GALDONES:Commissioner Kubota? KUBOTA:Jeff, I see two red dots over there, or are my eyes decei DARROW:The lower dot, it was the application that we had worked on this morning, Lehua Lani. So itÓs directly across the street. The one that weÓre looking at is more mauka. KUBOTA:Mauka. DARROW:Yeah, right here. KUBOTA:Thank you. GALDONES:Any further questions of Jeff? If not, is the Applicant or the representative present? Please come forward. Mr. Fuke, you have been sworn in and you are still under oath. So if I could, could you please state your name, your residence address. FUKE:Sure. Good evening, Mr. Chairman, Members of the Commission. My name is Sidney Fuke, IÓm a planning consultant. IÓm here as a consultant to SCD Kahakai, the Applicant. My residence address is 1358 Mele Manu Street in Hilo. GALDONES:Mr. Fuke, you have received the Background Report. Are, are there any comments? 2 FUKE:Sure. IÓd like to just generally resummarize some of the things that your staff had indicated. And I think, you know, to help illustrate the situation easier, I think if you refer to the submittal, maybe about like, what, 15-20 pages into the staff report where it reflects, thereÓs an Exhibit C, D and E, it shows like a proposed layout. And if I can call, direct your attention to that, and itÓll be easier for me to kind of proceed. KUBOTA:Excuse me. Where are you? FUKE:ItÓs part of the ApplicantÓs submittal. Do all the Commiss you know, I think it makes it easier, thatÓs the reason why I donÓt mind waiting a few minutes. KUBOTA:Is it C, D and E? FUKE:Yeah, C, D and E. KUBOTA:Got it. FUKE:Got it? THIBADEAU:Okay. Got it. FUKE:Okay. Okay. Thank you very much, begging your indulgence. the staff had pointed out, you know, back in 1991, the same property was zoned RS-7.5 and they came in with a 353-unit project, and that was what the SMA approval was for. The owner, subsequently, in 1999, I believe, acquired the property and on its own elected to downzone the property from RS-7.5 to RS-10. And the rezoning accompanying SMA application were approved, back in, excuse me, the year 2000, when the zone change was approved. With the zone change, what happened was that there was a maximum cap of 120 units that was allowed by the zoning. You know, regardless of the fact that whether they could go more but the zoning ordinance at that time conditioned that the project shall have no more than 120 residential units and no ohana units. The SMA application, which was filed and was approved, called for 98 lots. The reason why I was trying to direct it to you is like on Exhibit C, that was what was filed together with the SMA application for the 98 lots. The engineers at that time did their best to try to come out with what they feel would be the, you know, most appropriate layout; and then they submitted that, you know, on the basis that this is wh realistic for the project. Exhibit D shows what finally was approved by the Planning Department back in the year, well, about a year ago, in the year 2002, and it shows, it shows a layout. And there is some measure of difference, you know, between what was submitted in the SMA application and what was finally approved, which is Exhibit D. 3 In the approval of the subdivision by the Planning Department, in the year 2002, the approval consisted of not 98 lots but it consisted of 102 lots, four additional lots; and let me explain where these four additional lots were, are. One of these lots was specifically satisfied for a historic preservation area. Another one was for the proposed park site. Another site was for the proposed land that was going to be dedicated to the Kahakai School. And the fourth one, after they reconfigured everything, they had a balance and that was the 104 lots, which is the subject parcel. If you look at the location of that subject parcel, as it relates, you know, which is found in Exhibit D, they have identified where the subject parcel is. And if you look at Exhibit C, that was an area that was originally planned for some sort of a residential development. So thatÓs the area weÓre talking about. So when the Planning Department had approved the 104 lots, which included this particular, you know, the subject lot, there was a question then of how can that lot be used. I have before me like a sales brochure which, unfortunately, I did not make copies for all of the Commission. But the subject area is designated, the subject area is, you know, reflects all of the proposed 98, not proposed but all of the 98 residential lots. In addition to that, it also shows the historic preservation area, the Kahakai School expansion area, the park and, more critically, the subject area. The subject area is identified as undeveloped land, not open space, not park; but itÓs just called undeveloped land. So that, again, you know, provides some frame work in terms of the project and the subject area. I realize that there are questions and, you know, by the people who bought into the, you know, in the Kahakai Estates Subdivision, what was represented was not represented so on and so forth, and IÓll kind of like let their testimony speak, you know, speak to that. But I think the first question I think that I have, you know, in behalf of the Applicant is to find out that, I guess, from the Department, if you have the subject parcel, which is presently zoned RS-10, can a person today construct a single-family dwelling on the property? I mean, like, thatÓs -. If, for example, like the SCD Kahakai does not own this property but instead sold it to Mr. and Mrs. XYZ, you know, and that Mr. and Mrs. XYZ would come in, could that person come in for a building permit for a residential dwelling on that parcel? GALDONES:Mr. Fuke, itÓs the question youÓre raising? FUKE:ItÓs a question that IÓm raising, I guess, of the Director or the Department. GALDONES:Mr. Yuen? YUEN:This is one un-subdivided lot, right now, right? FUKE:ThatÓs correct. 4 YUEN:Is this one of the 98 or is this 99? FUKE:ItÓs 99. As I mentioned earlier like this -. YUEN:Yeah. FUKE:Yeah. YUEN:Uh huh. I think we made a mistake in letting you make this 99, then, in the first place. FUKE:Notwithstanding that fact, however, you know, that is already an existing lot of record so -. YUEN:If, I donÓt know. I, youÓre asking me like something that thought through and IÓd like to look at all the records in order to give you an answer to that. If what youÓre saying, though, is correct that this is actually Lot No. 99 as it stands and youÓre trying to go from, then this should have been count -. Because it is part of the area covered in the original SMA, I would not count the road lots and the park lots, or the historic preservation lots, against the 98. But it was supposed to be a 98-residential lot -. Right off the bat I would say the answer is no. You couldnÓt be SMA, number one. And, number two, if you had made it as a residential lot, then it would have been wrong to, it would have been wrong to have allowed this as a residential lot to get to 99 under the existing SMA permit because you got 9 FUKE:Okay, so, that being the case, then, what youÓre saying is, which is what the Applicant is doing, coming in for an amendment to the Special Management Area permit? YUEN:To get to 101, you need an, to get from 98 to 101, you need amend the original permit. FUKE:Or whether itÓs to 98 to, or 99? YUEN:Yes, to get from 98 to 99, also, you need to amend the orig permit. FUKE:Correct. You need to amend, you mean, need to amend the permit? YUEN:Yes. FUKE:Correct. Okay. I think he has answered the question to the best, I guess, like what he mentioned, you know, to his ability right now. So, other than that, I have nothing more to add. 5 GALDONES:Commissioner Fujikawa? FUJIKAWA:Question with the Director. So, in other words, the SMA applies to what, 98 lots? For the 99, 101, he has to reapply for SMA ag YUEN:Yes, unless you want to go by RobertÓs Rules of Order. This is, yes, they have to apply for an amendment to the SMA permit; and doing. Their original permit called for 98 residential lots, that was granted to them. They want to go to 101 residential lots, so theyÓre applying for an amendment to the permit. ThatÓs the proper procedure; and they are following the proper procedure. FUJIKAWA:Even though he goes under the same development? YUEN:Yes. Yes, it is the same owner, same developer and, so, it should be done by an amendment to the master permit. FUKE:Mr. Chairman, can I follow that up just with one more quest This is more like, you know, weÓre just trying to figure, like all the Applicant is trying to figure out like all these different options, largely, as a result of the two requests for Contested Case Hearing. Can I ask another question thatÓs related to that, Mr. Yuen? Since, like if you noticed like a number of those lots, particularly on the mauka side there, theyÓre one-plus acres in size. If the owner of that property, notwithstanding any encumbrances, you know, CC&RÓs and all that stuff but, if the owner of one of those properties, given the fact that the properties are zoned RS-10, wishes to further subdivide the property and thereby increase the density from 98 to 99, would that also require like an amendment to the basic SMA permit, or could that be handled under another permit system YUEN:This is a question that we struggled with in-house because request that you made to handle this by way of a minor SMA permit where you would take this little area and make a three-lot or four-lot, a three-lot subdivision actually, right, as a minor SMA permit and, because it was beyond $125,000 and it public hearing, a Planning Commission action. I donÓt have a general answer for this question. I do think that when you have an area that was covered by the whole permit and you still have it under the same developer, I think itÓs quite clear that you should do it by amendment of the overall permit. My feeling is that even with the, even if one of the one-acre lot owners came in, that that probably should be an amendment to the overall permit rather than by an individual application. It might have, the passage of time might have something to do with this. I mean if we were talking 20 or 30 years down the road, they might look at it differently. But as far as your situation, I think itÓs quite clear that itÓs part of this, youÓre asking for something thatÓs part of the overall development. And, therefore, I made this decision that this 6 would have to go by way of a major SMA, have an amendment to the than as a minor SMA permit or an exempt as an administrative act GALDONES:Thank you. Commissioners? KUBOTA:I have a -. GALDONES:Commissioner Kubota? KUBOTA:You mentioned the element of time. Why would it be right later and not right now? I mean, whatÓs the difference? IÓm just curious. YUEN:Well, this has to do with the expectations of people and of Planning Department or Planning Commission when a project comes in. And this comes in as a project that is 98 units, and they get an SMA permit, and they do have a 98-lot subdivision. And then they have certain areas that potentially could be resubdivided within there; and within a couple of years a developer comes in and wants to make additional lots in those areas. The SMA law says that if you make four or fewer lots with no additional infrastructure, thatÓs an exempt, you donÓt need an SMA permit for that. KUBOTA:Oh -. YUEN:Okay, so thatÓs like a very easy route. Okay? KUBOTA:Okay. YUEN:It also says that if you make a subdivision with less than $125,000 improvements, thatÓs a minor and it doesnÓt come to the Commission, it just gets handled by the Director. So, what is the, there is a potential for abuse here that is especially true when thereÓs a short time frame and you have the same applicant. comes in and they say, ÐWell, we want 98,Ñ and then they leave, and IÓm not saying they did this deliberately, but say they leave certain areas that can be developed later. And then they come in with an exempt because they built the roads and they built the waterline, and so thereÓs no real new infrastructure necessary for, to subdivide these larger areas within the subdivision; and pretty soon instead of being 98, itÓs a larger number. Now contrast that with a property sold 20 years down the road. You have an individual lot owner who has a larger lot and he decides, for whatever reason, that he wants to subdivide it. And then in this particular case, I think the, correct me if IÓm wrong, I think there are covenants that prevent the individual lot owners from resubdividing the property. So itÓs a very much a hypothetical problem in this case. Okay? But you could look at that differently, that at that point youÓre, the -. And itÓs difficult to, for the individual to, if you, the notice part is also different. Because you, you could amend the overall subdivision. You have to give, to amend the overall permit, you have to give notice to a hundred, to people in the perimeter of the entire subdivision. Whereas, if we 7 let you do the amendment to just one area, you would just, if it was a minor you wouldnÓt give notice at all, where, otherwise, you could just do it to the perimeter of your one lot. So but, anyway, why would it be different? ItÓs really a matter of is the project being cut up in a way to avoid public review and to avoid the spirit of the law that a major project gets reviewed as a whole; and thatÓs the basic intent of the SMA law. So that is the concern, I mean, of -. There have been, thereÓve been individual SMAÓs within master SMAÓs, but that didnÓt increase the overall densit it that way. Let me give you an example. Suppose somebody in o leave the covenants aside, somebody wanted to make some kind of an SMA permit. Okay? We would allow that person to come in for on their lot and not amend the whole SMA for the 98 lots because theyÓre not changing the 98 lots, theyÓre just asking for something that affects their lot. But that is different than subdividing an area within the 98 to make it go to a larger number of lots. GALDONES:Commissioners, any further questions? KUBOTA:Did I understand you to say that it could be, this request could have been treated as a minor SMA revision or an amendment, but you chose not to allow this? YUEN:We were asked to do that by the Applicant. KUBOTA:You were asked -. I see. YUEN:And I decided that we would not do that for the reasons that IÓve said, that I think that given that itÓs so close in time and done by the same Applicant, that, and I donÓt, IÓm not saying, we might even, I might even look at it as the same way if it were many years later and a different lot owner. But I think given those facts, itÓs clear that it should come in as an amendment to the existing major, ra separate action and possibly handle as a minor or an exempt. KUBOTA:Okay. I accept that. Did I understand your answer to th th question about if it were a separate, if they chose to sell this 99 lot to somebody, then could that person come in and subdivide it into three lots? YUEN:I would say no. KUBOTA:You said no? YUEN:Yeah. And, also, as far as this question on could somebody build a house on it as it stands now as a large lot, I think the answer is also no. Because the SMA permit is limited to 98 residential lots and those have all been, those are all out there and have been sold out to people who are going to build residences on them. So th you canÓt -. This 99 lot was not, is not a residential lot in the, within this development. ItÓs not a -. 8 KUBOTA:What is it? What is it? How did it happen? YUEN:Maybe Mr. Fuke can answer that. KUBOTA:Oh, okay. YUEN:I donÓt, yeah, I donÓt have a good -. IÓve looked at how it, I mean, physically how it happened is that, thereÓs originally -. I think that, I think Mr. Fuke gave an explanation for how it happened. It, the original plan was residential, then later they changed the plan to make more residential lots elsewhere and left this part open. But itÓs not a, itÓs not as, as it stands now, itÓs not a residential lot under the SMA permit. And th they do need an approval to make, to make even the 99 residential lot would need an SMA permit; and to go up to 101 needs an SMA permit. KUBOTA:One more question. You know, going back to the deliberation of the Kohanaiki thing, you used your discretionary power to do something in, and changed the zoning for that. You couldnÓt do that for this one, like the -? YUEN:No. Because this is, that was what we call a non-significant zone change thatÓs completely -. KUBOTA:Different? YUEN:Separate, yeah. ThatÓs moving zoning around on a particular parcel but not changing the overall density of the parcel. And they needed an SMA permit. They had zoning in Kohanaiki for thousands of units. T thousands of units. We wound up with an SMA permit for 500 unit do, thatÓs 500, they canÓt do 501. So this Applicant, SCD Kahak have zoning, that the zoning permits 120, the zoning ordinance, but they came in and asked for and got an SMA permit with a cap of 98. And 98 is 98, so they need to change or amend the permit to get 101. KUBOTA:Oh, okay. FUKE:Mr. Chairman, can I just briefly expand or respond to Commissioner KubotaÓs question? ThatÓs part of dilemma, I think -. You know, when you look at Exhibit C, you know, that SMA level, generally you only submit a conceptual plan as best as you can; and then after you get approval then you do this specific design; and as you do this specific design, you would also have to comply with conditions of the zone change or the SMA approval. And then you find out, oops, you know, like the conceptual plan that you submitted really canÓt be implemented b fulfill all of the different conditions of approval or ground conditions, so on and so forth. No developer in his or her right mind would want to expend an exorbitant amount of money and come up with engineering design plan to tell precisely how I want my plan to be, to look like. ÒCause as you go through this process youÓll have all these, youÓre going to be saddled with a whole bunch of conditions, and then your plans are going to have to 9 be readjusted to meet with those conditions. So if I were the developer back then, I probably would have said, I wanted to cap it at whatever the zoning was, 120; and in the end if you come up with 98, or 101, or whatever, it would not have been a problem. But that was not the situation. They had specifically requested for 98 units because thatÓs what their preliminary plan was shown and they figured they can do that. But as they go through the plan then they find out that, oops, we have all this extra land, now what are we going to do with this extra land. So thatÓs the dilemma that theyÓre faced with right now. They have this nearly three-acre parcel thatÓs an undeveloped portion and theyÓre kind of like wondering, well, what are they going to do with that. I understand like what the Director is saying. What heÓs saying is that, sure, the zoning allows it, you havenÓt exceeded the 120-unit cap; and at this point in time, short of having the SMA amended, in his mind, you know, the land cannot be subdivided, neither can a person build any single-family dwelling on the existing 2.99-acre parcel, you know, without going through this amendment process. But therein lies the dilemma for the Applicant or whoever owns this property, Òcause you have an RS-10 zoned property and you canÓt even build one house on it. So -. FUJIKAWA:I got a question with Sidney. GALDONES:Commissioner Fujikawa? FUJIKAWA:Yeah, Sidney. According to this Kahakai Estates Homeowners matter, that particular land was sold to these homeowners as this area, as an open space? FUKE:See, I canÓt really speak, you know, IÓm not the realtor, I donÓt have a license. But I canÓt really speak to that like, you know, what was said, what was not said. So I think it would best to just let those who are here to testify to that effect. My sense, however, is that like if itÓs predicated like on representation or lack of representation or misunderstanding or whatever have you, I donÓt know whether it would be the appropriate form for the Planning Commission to adjudicate on that matter or whether the appropriate form on representation or lack of representation should be made with the judicial body. IÓm not really sure, but thatÓs for the Commission to decide. My sense is that looking at it purely from an SMA perspective, itÓs whether the requested three-lot subdivision fulfills the requirements for an SMA permit or the amendment of an SMA permit. GALDONES:Okay. Any further questions, Commissioners? If not, Mr. Fuke, I have some people who have signed up to testify. Jeff, we have r Standing for Contested Case Hearings. First, Mr. Richard Bosselmann. Is the Petition in order? DARROW:Yes, it is, Mr. Chairman. If I could direct your attention to the site plan. IÓve marked with purple and pink the areas that the Applicants, the Petitioners that actually own the parcels. IÓm not sure if they actually reside there. They can further let us know about that. 10 This is the actual area that theyÓre looking at subdividing. Mr. Bosselmann owns this lot, Lot 72, Mr. Cawley owns Lot 78, which are directly across the street from the subject area. They have submitted the applications along with the filing fees. GALDONES:Thank you. Commissioners, you have the applications before you, the petitions, and you have heard the statement made by Jeff. LetÓs take, first, Mr. Richard BosselmannÓs Petition for Standing in Contested Case Hearing. Everything seems to be in order and he is close to the Kahakai Estates, the development. The Chair is prepared to entertain a motion to accept the petiti KUBOTA:Yeah, thatÓs the petition? GALDONES:To grant them standing. Commissioner Kubota? KUBOTA:Mr. Chair, I move that Richard Bosselmann be granted standing in the Contested Case Hearing. FUJIKAWA:I second it. GALDONES:It has been moved by Commissioner Kubota and seconded b Commissioner Fujikawa that the Petition for Standing in a Contested Case Hearing by Richard Bosselmann be approved. Discussions? If thereÓs any questions of Mr. Bosselmann, heÓs present. Hearing no questions, Jeff? DARROW:Thank you, Mr. Chairman. GALDONES:If youÓre going to testify, IÓm going to accept this first and later on you can testify. I just want to deal with the Petition first. Jeff? DARROW:Thank you, Mr. Chairman. Commissioner Kubota? KUBOTA:Aye. DARROW:Commissioner Fujikawa? FUJIKAWA:Aye. DARROW:Commissioner Graham is excused. Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Mina? MINA:Aye. 11 DARROW:Commissioner Smith is excused. Commissioner Springer is excused. Commissioner Thibadeau? THIBADEAU:Aye. DARROW:And Mr. Chairman? GALDONES:Aye. DARROW:The motion passes, six to zero. GALDONES:Thank you. Commissioners, thereÓs another petition that was submitted for our consideration. ItÓs a petition submitted by Mr. Kevin Cawley. KUBOTA:Mr. Chair? GALDONES:Commissioner Kubota? KUBOTA:There is perhaps, is this Mr. Bosselmann? There is an am from the consultant, Sidney Fuke, regarding the, Mr. BosselmannÓs Request for Standing and, perhaps, maybe I was premature in making a motion, and it s necessary, at least with Mr. Bosselmann. And before we get into the discussion of Mr. Cawley, could we hear from Mr. Bosselmann so we can dispense with whatever heÓs there to say? GALDONES:Well, Mr. Bosselmann, is it your desire to withdraw your petition? BOSSELMANN:Not at this time. KUBOTA:Oh, okay, sorry. GALDONES:Okay. I will give you an opportunity to speak later. I just want to deal with the petitions first. Okay. Commissioner Kubota on Mr. CawleyÓs petition? KUBOTA:Yes. IÓm sorry I got off on a tangent. I just found this and I knew I read it somewhere about, okay, never mind. I move, Mr. Chair, that we grant Kevin Cawley standing in this Contested Case situation. FUJIKAWA:I second it. GALDONES:It has been moved by Commissioner Kubota and seconded b Commissioner Fujikawa that the Petition for Standing in a Contested Case Hearing by Kevin Cawley be approved. Commissioners, any discussion? Mr. Cawley is before us if thereÓs any questions. If not, Jeff? 12 DARROW:Thank you, Mr. Chairman. Commissioner Kubota? KUBOTA:Aye. DARROW:Commissioner Fujikawa? FUJIKAWA:Aye. DARROW:Commissioner Graham is excused. Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Mina? MINA:Aye. DARROW:Commissioner Smith is excused. Commissioner Springer is excused. Commissioner Thibadeau? THIBADEAU:Aye. DARROW:And Mr. Chairman? GALDONES:Aye. DARROW:The motion passes, six to zero. GALDONES:Okay. Thank you. There were several individuals that signed up to testify. Mr. Fuke, IÓm going to need the chair, please. Frank Karsznia, Richard Bosselmann, David Oman and Kevin Cawley? I believe we have four chairs, we can accommodate four people for now. Could you please step forward. DARROW:Is Mr. Taylor on that list? Greg Taylor? GALDONES:Oh, yes. We have Gary Hall, Greg Taylor and Michael Mendes. I just didnÓt have enough chairs so I didnÓt call the rest up. DARROW:Thank you. GALDONES:Frank Karsznia? PUBLIC:HeÓs not here. GALDONES:HeÓs not present? Okay. Then Gary Hall. Is Gary Hall here? Okay. Greg Taylor. Then perhaps, Jeff, if you can bring another chair for Michael 13 Mendes. Okay. 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 C TESTIFIERS:I do. GALDONES:Gentlemen, as you have just heard, the witness that, the Petition for Standing for a Contested Case Hearing has been approved. Therefore, what it means is that there is going to be a hearing set forth to hear this matter. You could either make a presentation today, at this public hearing, or you can reserve your comments and present it at the Contested Case Hearing. Normal process in a Contested Case Hearing, the Hearings Officer includes all the testimony, makes the Findings and the Recommendations for consideration to the Planning Commission. So if you choose to do so today, that is your prerogative to do so. Otherwise, you can save your comments later on for the Contested Case Hearing. Okay? Now before we proceed Commissioners, we need to select the Hearings Officer, either the Commissioners could do it or we can contract it out to an outside contractor. WhatÓs the wishes of the Commissioners? KUBOTA:Mr. Chairman? GALDONES:Commissioner Kubota? KUBOTA:I move that we direct the Planning Director to procure a Hearings Officer through the procuring process. MCCALL:Second. GALDONES:It has been moved by Commissioner Kubota and seconded b Commissioner McCall that we have the Director procure a Hearings Officer. Any discussion? Hearing none, Jeff? DARROW:Thank you, Mr. Chairman. IÓm sorry, I didnÓt catch who s the motion? GALDONES:By Commissioner McCall. DARROW:Thank you. Commissioner Kubota? KUBOTA:Aye. DARROW:Commissioner McCall? MCCALL:Aye. DARROW:Commissioner Fujikawa? 14 FUJIKAWA:Aye. DARROW:Commissioner Graham is excused. Commissioner Mina? MINA:Aye. DARROW:Commissioner Smith and Commissioner Springer are excused. Commissioner Thibadeau? THIBADEAU:Aye. DARROW:And Mr. Chairman? GALDONES:Aye. DARROW:Motion passes, six to zero. GALDONES:Thank you. So, gentlemen, therefore, the hearing will forthcoming later on. Because we have to be at the gathering at 6:30 this evening, IÓd like to leave here, Sharon, is 6:15 sufficient for us to get out of here? GAGORIK:Yes. GALDONES:Okay. So, gentlemen, if youÓre going to make a present will be limiting your presentation to three minutes and IÓd appreciate your cooperation. I would allow the Petitioners to proceed first. Richard Bosselmann, could you please state your name, residence address? BOSSELMANN:Thank you. My name is Richard Bosselmann. My curren residence is 4404 Leilani Street in Kailua-Kona. And I would just like to say that, first of all, the fact, oh, let me start by saying, it wasnÓt an accident that this was submitted as a 98-lot subdivision. It was very calculated. They didnÓt go back and draw up their plat and then look and say, ÐOh, oops, we left out some land here that we could have developed.Ñ Stanford Carr himself told me that if he had gone over, I believe it was, 100 lots, that he was required to build a water tank; and there was other infrastructure requirements that he would have had to have met, that would have been very expensive and costly to the subdivision. So, I think, IÓm not sure whether this is documented in the permits but I didnÓt have, they werenÓt sent to me, but there were other issues. And it was definitely was not a mistake, that this was submitted as a 98-lot subdivision. Also, this subdivision, when most of the people purchased their homes in the subdivision, it was just dirt and lava; and they would bring it down to your lot and you would stand in the lot with the sales representative and you would look at the plat map that the sales material had in it, and then you would ask, you know, whatÓs going here, whatÓs going there. And that land was disclosed to everyone. That was going to be a gift from the developer, undeveloped land. The CC&R list that three-acre parcel as open space and 15 that was a very big selling point that the sales people were presenting to us. My lot was right across the street. I was one of the very first people to purchase, so I had a choice to wait until another home was released. But I went and did all my the sales people, stood on the lot and asked them where things were going to be; and they said this is going to be, you know, great view down the coast, nothing is going to be across, that itÓs open space. And so that is the way it was presented to me. And it was only disclosed to us when Mr. Fuke was hired in October that that was going to be, that they were attempting to develop that land or subdivide it. And I went to the County and researched it a little bit; and I found out that they had actually submitted plans, ten sets of plans, and had submitted as early as February of 2003 before any of these homes had been sold. No one had moved into a home, nothin and as of February they had already submitted plans before this plans to subdivide that land. And so their intention has always been to build homes or sell that land as home sites; and that was never disclosed to anyone when many of these people, including myself, were in escrow to purchase our home; and it was never disclosed to us even though the developer was attempting to subdivide that property as early as February of 2003. And we were only disclosed of this the second time they had attempted it when they hired Sidney Fuke in October. So we feel that this, the sales material, people were walking in the sales office and asking them specifically whatÓs going to happen with this land, and they were told in no uncertain terms that itÓs going to be left as open space. And, so, and it would revert back to the Homeowners Association to be left as open space. So thatÓs, I feel that this was misrepresented to all of us; and thatÓs why so many people are so upset about this. Thank you. GALDONES:Thank you, Mr. Bosselmann. Questions, Commissioners? Kevin Cawley. CAWLEY:My name is Kevin Cawley. My address is 75-6149 Nakukui Drive, Kailua-Kona, Hawaii. To Members of the Planning Commission, while we were considering the purchase of a home at Kahakai Estates, we were repeatedly assured by sales personnel that the subject site would never be developed. Indeed, our choice of a home was based on this information. About two months ago, we noticed pins in the ground on the makai side of Nakukui Drive, right across from a driveway that we share with neighbors. The pins looked like property pins; and so we immediately went to the Kahakai Estates sales office to inquire about these pins. Again, we were told by sales personnel that we were mistaken and that these were not property pins and that the land was not being developed. And now that the project is just about, itÓs all sold out; and now at the end of the project, theyÓre coming in to try to get this permitted, you know. This is, yeah, this, right at the very end of the project, the subdivision is sold out. All the homes are sold, all the lots are sold. And now, after the fact, theyÓre trying to come back and change the SMA permits, which is totally, totally misrepresentation. If this had been done like at the beginning, everybody had known about it, or even back in February when the house before was 16 closed -. But this was, this plan, you donÓt spend all that money on architects, engineers, everything without planning it this way. Thank you. GALDONES:Commissioners, any questions of Mr. -? Sir? State your name, please, and your residence address? OMAN:My name is Dave Oman; and my wife and I live on Nakukui at 75-6173. We purchased our home, actually, more recently than any We bought, weÓre the second owner of a home and we actually closed on our house on stth October 21 and submitted our offer on September 14. Prior to submitting that offer, my wife and our realtor, who is a lady by the name of Diane Doherty from Clarke Realty, met with the agent from Kahakai Estates and specifically specifically asked what the intention was for the area that was marked undeveloped lands. And the answer from, the ladyÓs name was Darlene Perlado responded that it would be given to the HomeownerÓs Association, there would be no development on that land. We are on Nakukui, across from this area. ItÓs directly within our viewplane. And this, really thereÓs three objections, I guess, we have. The first is that it would significantly reduce the value of our land if thereÓs development on that property. We paid over half a million dollars for this home with the expectat would have a view of the ocean. Realtors say, what, location, location, location; and here on the Big Island location means a view of the ocean. Anything done to those lots will reduce the value of our investment. The second thing that proposal is that -. And I donÓt know what has been given to you by the developer. Have you seen pictures of all of these lots, or elevation information, or driveway information? These lots are basically in a hole. YouÓve got a sidewalk, and then you have about three feet of grassed area, and then it drops just off like the edge of this table. In order for people to develop these properties, thereÓs going to have to be very steep driveways. ThereÓs only one sidewalk in this development. It passes in front of these three lots over to the park. Boys and girls are walking back and forth in front of three lots to the park. In order for people to drive out of this hole, up onto the street, theyÓre going to have to come up a very steep driveway, theyÓre going to have to come at a certain rate of speed in order to make the grade. They will have little or no possibility of seeing kids walking on that sidewalk to the park. Further, this property is adjacent to the Kahakai Elementary School and kids are walking back and forth to school on that singular sidewalk where these dangerous driveways will be developed. This is a recipe for tragedy. Further, it, for us as -. GALDONES:Fifteen seconds. 17 OMAN:As members of the HomeownerÓs Association, this represents significant potential liability; and weÓre just not willing to accept that. Please protect our investment, please protect our kids, please force this developer to have integrity. Thanks. GALDONES:Thank you. Commissioners, any questions of Mr. Oman? Mr. Taylor? TAYLOR:My name is Greg Taylor and I live at 75-110 Hanaula Place in Kailua-Kona. I, too, bought in the tracts, and it is really a concern for me because of the neighbors; and IÓm here to support them. We were also told when we asked originally last November whether there was going to be anything in the undeveloped land, tthey promised us there would not be, it would be turned over to the HomeownerÓs Association. We came over this May to watch our home being built and at that time we spent several days in the sales office taking care of matters. And we heard the sales people in the office tell numerous people coming in to look at the tract that this was undeveloped land next to the park, it would be deeded to the HomeownerÓs Association when the lots are finished being sold and then developed. And now we have been thrown this curve ball, and I think itÓs wrong. And I particularly support the people who are directly affected by it, especially the ones across the street whose view will be significantly impacted. And also the issue of safety is another point of contention for us. Thank you very much for your attention. GALDONES:Thank you, Mr. Taylor. Commissioners, any questions of Mr. Taylor? Hearing none. Gentlemen, thank you. You may be ex YUEN:While theyÓre here, could I just make a comment? GALDONES:Mr. Yuen? YUEN:YouÓre going to go in, thereÓs going to be a hearing in front of a Hearing Officer, then you can present this to the Hearing Officer. I would suggest that whatever you have in writing that verifies what you have to say be, you try to find that and submit it to the Hearing Officer, to try to be as specific as possible about who told you what. You also, you can also request of the Hearing Officer that subpoenas be issued to witnesses, such as the real estate sales persons, and they can be asked these questions under oath as to whether they told you these things or not. GALDONES:Okay. Thank you, Mr. Yuen. Mr. Fuke? I will allow you three minutes for closing arguments. FUKE:Nothing really to close Òcause itÓs going to be open. So, I guess, I just as soon defer all of the comments until the Contested Case Hearing. GALDONES:Thank you. So this hearing will be continued. 18 The discussion ended at 5:55 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 19