Loading...
HomeMy WebLinkAbout2006-12-06 tmartinage-nunn PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT December 6, 2006 MICHAEL MARTINAGE/GREG NUNN A regularly advertised hearing on the application of (SPP 06-000039) was called to order at 9:30 a.m. at the Hapuna Beach Prince Hotel, Kamani Room, 62-100 Kaunaoa Drive, Kohala Coast, Hawai`i with Chairman C. Kimo Alameda presiding. PRESENT: C. Kimo Alameda ABSENT & EXCUSED: Fred Galdones Bill Graham Allen Salavea Andrew Iwashita Jeffrey McCall Alvin Rho Rene’ Siracusa Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And approximately 4 people from the public in attendance. APPLICANTS: MICHAEL MARTINAGE/GREG NUNN (SPP 06-000039) Special Permit to allow the establishment of a 5-room Bed and Breakfast operation within an existing dwelling and a guest house situated on a 5.06-acre lot in the State Land Use Agricultural District. The property is located along the northeast (mauka) side of Napoopoo Road (82-5990 Napoopoo Road), Waipunaula, South Kona, Hawai`i, TMK: 8-2-3:28. ALAMEDA: All right. Item No. 2. Michael Martinage/Greg Nunn. Or is that Michelle? Staff? DARROW: Thank you, Mr. Chairman. Good Morning, members of the Planning Commission, Mr. Chairman. If I can direct your attention to the location map. The area of this application is within the South Kona District of Hawai`i, more specifically, on Napoopoo Road, which is identified by this white line running in a north-south direction. Kealakekua Bay is identified in this area on the map. The area of the application is identified in blue. This is an approximate 5-acre property directly accessible to Napoopoo Road. The applicants in this case Michael Martinage and Greg Nunn are requesting a Special Permit to allow a 5-room bed and breakfast within an existing dwelling as well as a proposed guest house. The applicants have submitted a site plan, and just to go over this with you, the two dwellings that are identified, well, let me give you some reference here; Napoopoo Road is identified on the left side of the map, and we have several dwellings that are colored in, and I’ll explain those, the drive way to the main dwelling is identified in this area on the map. The two green dwellings that are EXHIBIT A 1 identified are existing farm dwellings; those have been approved previously. The existing purple dwelling is the main dwelling in which four rooms where the bed and breakfast will be operated within. At this time there are two unpermitted dwellings that are identified in orange. Those are proposed to be demolished and the applicants are proposing to construct a guest house on the footprint of what was supposed to be a workshop but is now a dwelling. So once that’s demolished, the proposed guest house will be located in this area. One of the rooms for the bed and breakfast will be operated within the guest house. The condition I want to bring to your attention is Condition No. 3, which states that improvements of the property shall be completed within five years from the effective date of this permit. Improvements shall be completed prior to the establishment of the bed and breakfast operation. These improvements will include, but not be limited to, the demolition of the two unpermitted structures, construction of the proposed guest house, finalizing all outstanding building permits, and disconnecting the water meter that’s connected to other dwellings and to just have it connected to one dwelling, unless other meters are able to be obtained by the applicant. If not, then the other dwellings need to be hooked up to a private water catchment system. The Planning Department has received a petition for standing in a contested case hearing from Brad Farwell. Mr. Farwell resides on a property that would be identified in this area on the map; this would be just to the west of the subject property, so that’s identified in this area here. The Planning Director is recommending that the Planning Commission approve this Special Permit request. Are there any questions? ALAMEDA: Commissioner McCall? MCCALL: Yeah, my question, I’m not sure whether it applies in this case or not, but in Ag areas where we have additional farm dwellings have been permitted and, I know there is a fair rigmarole in what has to be done to get a farm dwelling allowed. What if, if an additional farm dwelling is allowed and then a request comes in to use the farm dwelling for a bed and breakfast, how do we take that? I mean, does that negate the use of the farm dwelling as, you know, for what its permitted use was or -? I guess that’s a question to Mr. Yuen. ALAMEDA: Mr. Yuen? YUEN: A short answer is yes. If it was permitted as a B&B, then we would cancel the farm dwelling agreement. Under the current policy, the additional farm dwelling has a farm dwelling agreement that spells out that it’s supposed to be used in agricultural related activities. ALAMEDA: Okay. Ms. Siracusa? SIRACUSA: A question for Mr. Torigoe. In terms of timing and process, since we do have a petition for a contested case, at what point this morning do we take up that issue? Shall we just discuss the whole thing and bring up Mr. Martinage and Mr. Nunn and hear testimony from anyone else, or should we move right into the determination of standing? ALAMEDA: Mr. Torigoe? EXHIBIT A 2 TORIGOE: Thank you, Mr. Chair. Your Rules say, of course, that the Commission is supposed to take up the standing matter and grant or deny such a written request prior to any further action on the matter. So, it should be the first thing that you take an action on. However, if you feel that it might be helpful, you know, to allow public testimony because they may want to address things that may be relevant to the standing as well, then it may be a good idea to do. ALAMEDA: Okay. Commissioner Watanabe? WATANABE: I have a question because it looks like the contested case hearing is all about the potential noise and potential conflicts with the bed and breakfast existing in the agricultural area, and it seems like the person feels as though once introduced the bed and breakfast, you know, he won’t be able to start his business activities till a reasonable time, etc. But I don’t see where we would put any restrictions within the Ag District what time they begin their business or anything. The restrictions would occur with a bed and breakfast in the Ag area. So I’m wondering if we even need to go to a contested case hearing with that. You know the assumption is that his activities might be limited, but I don’t believe we’ve ever done anything like that, limit the, you know, adjoining property’s activities. ALAMEDA: Okay. Let me ask Mr. Torigoe. What are some of the premises or elements that would make us say okay to this potential petition? TORIGOE: Well, as you know, generally it’s whether the petitioner has an interest that’s distinct from that of the general public. Normally, with next door neighbors, you know, you pretty liberally say, yeah they definitely have different interest from that of the general public. And that will probably include the possible conflicts between the neighbor’s current use and their proposed use, you know, that would probably be something that would fall within the interest that’s distinct from that of the general public. ALAMEDA: Okay. Ms. Siracusa? SIRACUSA: As a follow-up, I’m wondering if there is such a thing that we can find out if Mr. Martinage and Mr. Nunn would stipulate to the intervenor that they would not object to any noise he makes during his normal operations or try in the future to get him to cease and desist because he is bothering their guests, something like that. Is that a possibility? ALAMEDA: Mr. Torigoe? TORIGOE: It’s a possibility, but you would have to, I guess, have them, you know, talk it over a little bit, and you may want to put on the record something that specifically says that. It’s a possibility, I’ll say that much at this point. ALAMEDA: Ms. Siracusa? SIRACUSA: Cause I’m thinking that if that was the only issue that the neighbor had and if the bed and breakfast operators would agree to that as a condition of their permit, then there wouldn’t be any reason to have a contested case. ALAMEDA: Let me just ask, because I’m curious. Is Brad Farwell here? EXHIBIT A 3 FARWELL: Yes. ALAMEDA: Oh, okay. So, that could be a possibility. Commissioner Watanabe? WATANABE: I’m wondering if, maybe we could -. Is it proper to call up the intervenor? And maybe hear from him and see if we can handle all this right now, cause it just seems to me that all these objections are about potential restrictions on his activities and, like I said, in general that is not something that occurs in a case like this. So, if we can satisfy him that way, he might be willing to drop this contested case. ALAMEDA: Let’s check with our First Vice. I’d just like to know if he had any thoughts on this. Mr. Graham? GRAHAM: My sense is a lot of this discussion we can do when the proposed intervenor comes before us, and I just had a question of my own for Mr. Darrow. I know we have some documentation that maybe the road is not particularly amenable to take increased traffic, and so I wondered, just from his first hand experience, if he can just give us a little extra background on the condition of the road, the Napoopoo Road. ALAMEDA: Mr. Darrow? DARROW: If you can give me one second here, I’m going to refer to our comment letter from the Department of Public Works, Exhibit 3. It appears that they didn’t address the roadway in this particular area. If I can just confer with Mr. Emler regarding this road. If I can defer that question to Mr. Emler. ALAMEDA: Certainly. I’ll swear you in, Mr. Emler. Do you swear or affirm to tell the truth now before the Hawai`i County Planning Commission? EMLER: I do. ALAMEDA: And please state your name and address for the record. EMLER: Kiran Emler. Department of Public Works, Engineering Division based in the Kona office. Address? ALAMEDA: You may proceed. EMLER: Oh, general question was concerning the condition of Napoopoo Road? Is that just like a condition of paving or a condition of the alignment or -? GRAHAM: We have a letter from the Kona Traffic Safety Committee also opposing this bed and breakfast because, they say, that Napoopoo Road is a relatively narrow two-lane road serving many homes and small businesses and access to the dangerous intersection, which is already operating at the capacity at certain times. So, as long as we’re at this point of proceeding, I just thought if you could give us a little sense of whether the road can safely handle EXHIBIT A 4 additional capacity or your sense on whether, you know, the road is consideration that we should be serious about, if we wanted to grant this application. EMLER: It is correct that the road is a very winding, narrow road. It’s a very old road, probably came from wagon trail days, that has been paved over the years and successive improvements made for drainage and so forth, with lots of direct access driveways coming off of it in areas, and driveways can be very steep and on blind corners.So, as far as the general safety of it, I would say that there are many issues of it that would be nonconforming with what would be considered to be a safely designed roadway for, under current standards. GRAHAM: In the area where this application is, do you know if like two cars going opposite directions can safely go by each other without having to get off the pavement or anything like that? EMLER: It’s definitely a two-lane roadway. It has, I’m just going to estimate the pavement width, it would be probably 20 feet in most areas, there may be some less, for two lanes. GRAHAM: All right. Thank you. ALAMEDA: Commissioner Rho? RHO: Since you are up here, can you talk about the junction at Napoopoo Road and I think it’s Mamalahoa, and if you know about any future plans at the intersection? EMLER: Okay, the intersection of Napoopoo Road and Mamalahoa Highway is planned for some redesign, realignment when the Mamalahoa bypass roadway is constructed or completed as part of the Hokulia project. At that time it will become a crossing intersection with the bypass road. ALAMEDA: Commissioner Rho? That’s good? Any other questions for Mr. Emler while he is up there? Okay, thanks, Ki. You may be seated. All right. I have a thought. And, Mr. Torigoe, please help me with this. I want to call up actually Brad Farwell to see if there is anything to add to this Commission -. So, fellow Commissioners, what do you think about that? Any objections to inviting Brad Farwell? WATANABE: No. I think actually procedurally that’s what we should do anyway, because we do have to consider whether to grant standing or not. ALAMEDA: Okay. Commissioner McCall? MCCALL: Yeah, actually I thought procedurally we do need to bring the applicant up first, I thought. Typically, the applicant comes and has something to say, and then we will bring public testimony and/or the petitioner. ALAMEDA: That sounds good. Mr. Torigoe? EXHIBIT A 5 TORIGOE: Yeah, basically you just want to make sure that you give Mr. Farwell as a petitioner for standing contested case the opportunity to, you know, address his petition. You also want to give the applicant a chance to respond to that, or if the applicant would want to stipulate, even sometimes that happens, you know, that there should be standing granted. And then it is wise to allow for any public testimony. ALAMEDA: Shall I call both of them up, and then have the petitioner speak first? TORIGOE: Yeah. ALAMEDA: All right. Will the applicants or the representative please come forward? And Mr. Farwell, could you please come forward? All right. Good Morning. Since you are up there, I’m going to swear you in. Please raise your right hands. Do you swear or affirm to tell the truth now before the Hawai`i County Planning Commission? PARTIES: I do. ALAMEDA: Thank you. You may be seated. We’ll start with on my far left, Brad, could you please state your name and address for the record? FARWELL: Brad Farwell. I live in Captain Cook. Post Office Box 732. ALAMEDA: Thank you. Sir? CONVENTZ: Klaus Conventz, the planning consultant for the applicant. P. O. Box 2308, Kailua-Kona. ALAMEDA: Thank you. Sir? MARTINAGE: Michael Martinage -. ALAMEDA: In the mike, please, Michael. Sorry. It’s because everything is being recorded, so it’s going to help the minutes. Go ahead, Mike. MARTINAGE: No problem, what so ever. Michael Martinage, 82-5990 Napoopoo Road, Captain Cook. ALAMEDA: All right, thanks, Michael. Mr. Farwell, is there anything else to add to the petition that you would like to share with the Commissioners at this time? FARWELL: Yes. Not only do I farm next door, but we also have a small factory. And it makes considerable amount of noise. My main objection to this stems from the fact that I’ve had three incidents in the last three years over this noise issue. The first was the most dramatic where the police showed up, and there are only two policemen in South Kona. So once the man got there and saw that the fact my wife and I were blowing leaves, he was embarrassed and left. The second incident was when I was blowing leaves again, and a man wandered into my orchard and asked me if I would stop blowing till about 3 o’clock in the afternoon. This was around 9 in the morning. And I said no, but asked him why, and he said, well, my wife is consulting over the EXHIBIT A 6 telephone and the drone of the blower is bothering whoever she was talking to. The third incident, again, was when I was blowing, and someone wandered into my field, and said the man in the house where the proposed bed and breakfast is having epileptic seizures, and would you please stop blowing. And I said, no, I can’t, I’ve got pickers behind me. And I subsequently checked with my partner in our business, who is a doctor, and he said that a noise will not trigger a seizure, however, improper medication will. So, with these three incidents, I’m very gun shy of an activity that’s directly next door to me that’s going to be primarily conducted in the early morning hours when I will be out there blowing or spraying or mowing or doing whatever I have to do. And even though you could put various restrictions or so forth on this -. The previous applicant is a fine example of why that is worthless because you go back to the Planning Commission and say, well, you know, we just bought this property from Michael and Greg, and now we want to have Mr. Farwell our next door stop his activity. And, well, I know you can’t stop me from farming. I can be harassed. And with all the difficulty that farming entails, and we have business that we are trying to operate -. SIRACUSA: Please speak into the mike, so I can hear you. FARWELL: I’m sorry. Okay. With all of this activity going on next door, I don’t see how in good conscience that you can grant a bed and breakfast and allow my farm to continue to operate next door. The two are fundamentally incompatible. ALAMEDA: Okay. Fellow Commissioners, any questions? Commissioner McCall, you are a farmer. You, too? Go ahead. SIRACUSA: Yes, so, Mr. Farwell, you are saying that even should Mr. Martinage and his partner stipulate and agree to allow us to put a condition in the permit that says that they will not try to prevent you from exercising your normal farming operations whether or not they cause noise, you still would not consider that a sufficient resolution of the problem, you would still want to go ahead with the contested case? FARWELL: I have nothing personal against Michael or Greg. They are great guys. I just met them, and we get along fine. But one of the difficulties with bed and breakfasts is the fact that the permit is transferable, and that means that it’s there forever. So if Michael and Greg have a problem and sell the property and someone else buys the property, they are under no restrictions as to whether or not they would uphold us. And even if they were, the fact that people are coming out there and glaring at you or wondering why you are blowing these leaves or why whatever you are doing there, it’s a form of harassment that I don’t feel it’s fair. SIRACUSA: Thank you. Number One: You did not answer my question. Number Two: if we put it as a condition of the permit, then it doesn’t matter if they sell the property to someone else; the person would still be bound by those conditions. My question was if we were to do that, if Mr. Martinage would agree and the Commission would agree to make an extra condition in the permit, would you consider that sufficient to drop your application for a contested case, or do you want to continue with that anyway? FARWELL: I appreciate what you are trying to say, and putting the restriction and condition on sounds good on paper, but it severely restricts what I can do with the property at some future date. I have a large clearing up above, and if our business continues to grow as it is, EXHIBIT A 7 I may be forced to build another factory up above, so now I have noise at two ends of the property. So, I don’t see how you can have a noise making operation like my operation and then expect to have peace and tranquility next door. I mean, if you look at the map, my orchard is right there, the house is less than 70 feet from the property line. So, I’m there all the time one way or another. And people are not going to spend good money to stay at a bed and breakfast, and expect the kind of noise and activity that I conduct on a regular basis. SIRACUSA: Thank you. Would you please give me a yes or no, just a yes or no, do you want to continue with your contested case? FARWELL: Yes. SIRACUSA: Thank you. ALAMEDA: Commissioner Watanabe? WATANABE: I have, I don’t know if it’s germane anymore, but I have a question to Brad. Right now the three complaints you cited were not from bed and breakfasts, they were from just people living in the Ag zoning. Am I not correct? FARWELL: When the property was first sold, Dr. Bairos built the house about ten years ago, and the marriage crashed and burned, and it was sold initially to a realtor. While it was in this transition period before Mike and Greg bought it, they were basically running like a rooming house. And it was -, all three instances came from that house. The way the property is laid out, you don’t really appreciate the grade, from Napoopoo Road to the back of the property is a 250-foot elevation change. And the property is only 800 feet deep. Michael’s driveway is really steep. But the point I’m making is that sound travels up, so I don’t see how -. When I’m cracking, we use this new cracker from Naalehu; it sounds like a Gatling gun. And that is at the bottom at the moment, but I may be forced, if our business continues to grow, to put it up at the top. So, what gives? ALAMEDA: Mr. McCall? MCCALL: Yeah, thank you. I know I’m not supposed to testify, but I -. As a fellow farmer in Ka`u, I do know what you are going through, that residents will complain about, you know, starting a tractor at six in the morning, spraying roundup on your property, etc. etc. There is a law in the books, the Right to Farm Act, which gives us some powers to protect ourselves from harassment, but it’s a legal thing; we have to hire lawyers, we have to do this. And doesn’t stop people from calling the police once a week and saying, you know, this guy is still starting his tractor too early. I do feel that there are, I mean, while we are supposed to support the idea of bed and breakfast in the agricultural areas, I do feel that there are areas where bed and breakfasts are not compatible with agriculture, and I think this may well be one of those places. Some agricultural operations are not compatible with, you know, the quiet, pristine life style that people think about. I mean, you do have noisy operations, you have, you know, when people separate calves, you’ll have, you know, baby cows crying for, you know, 48 hours. There are a lot of, you know, things that just are incompatible. I, you know, I would like to hear from the applicant to see what he has to say, so -. EXHIBIT A 8 ALAMEDA: This is a good discussion cause actually we are dealing with standing whether or not we think it’s, there is premise for it. And I like Commissioner McCall’s comments cause it adds some balance, a little bit. But we are still addressing whether or not Brad has standing. Commissioner Siracusa? SIRACUSA: Yes, can we talk to Mr. Martinage and get his take on this? ALAMEDA: Sure. Mr. Martinage? MARTINAGE: Sure, absolutely, thank you so much. First and foremost, I want to keep everybody in the Council assured that I’m a farmer. I am a farmer; our primary business is a farm. However, as I shared with Brad who I do business with, I actually buy macadamia nuts from him, I have hired him to come over and work on our land with chipping. He knows aggressively, quote and unquote, that our property is in better shape than it has in 30 years. We no longer offer a crash pad house and environment. I’ve come in to Brad’s field twice, and the first time was after probably about two and half weeks of weed whacking and blowing and stuff to introduce myself and to let him know that I was his new neighbor. The second time was when he was trimming his trees, again, to go over there and offer him water and to talk to him about purchasing his products. We do not have a problem with Ag. We chose this particular property because of its brilliancy to be able to combine a well rounded property that has revenue streams and also provides the visitor an opportunity to come into our neighborhoods and to stay with us. Our people aren’t lounging on the deck for the day; they are up and they are swimming, they are going to the volcano, they are experiencing, they are going to the Kona coffee farm. They are really -, if they want the type of poolside experience, that’s the Four Seasons Hualalai or the beautiful Hapuna Prince. I have been in a hospitality business and owned my company for the last 17 years. My website is called “Finding My Hawai`i” because I believe that what we have is such a unique place that our property benefits from sharing that with our visitor. As I shared with Brad, you know, if I owned the land 30 years ago and if it was just Ag, as he shared with me, he says I would like to teach you that you can pay your bills with just Ag. Well, I paid 2.3 million dollars for my house, I cannot just pay by Ag. But I will. I have a beautiful coffee product. I have a nice mac nuts product. If we work together, I can actually bring an enhancement to that sound of cracking nuts. You know, that is our product being farmed. So that is what we are all about. So really if you look at the type of operation that we are looking to open here, it is not one that isn’t community based; we are community based, we have outreach to our neighbors, we are buying their products, we are revitalizing the land. We will have less traffic to our property than what was there prior to us purchasing the land. Before there were seven rooms in the house plus six other cottages, so there could be 15 different cars going up and down there. That is not the case in our case. And if we take a look at it, Brad even has on his website a link to an agricultural bed and breakfast. He sees the potential that people like to stay at the property cause he has a vacation rental on his property. So, please, what I’m just asking is the fair shake here. And if Brad knows that he is going to be weed whacking or some obnoxious thing, just like myself, you reach out and you just say to the neighbor, “Listen, for the next three days I’m going to be doing this project. Heads up.” And that’s just common courtesy of what we’d like to show. So any EXHIBIT A 9 questions, you just let me know. And any Ag business that he does on the property, as long as it’s not two o’clock in the morning or something unreasonable with the other neighbor, we can completely condone. And that’s the reason why we choose to live in the neighborhood actually. So, we thank you. ALAMEDA: All right, fellow Commissioners, we’ll still entertain whether or not we are going to grant standing. So, and basically all we need from our potential petitioner and our applicant is questions to get us to figure out how we are going to do this, so I am ready to entertain a motion on this, and then go into discussion. Commissioner Watanabe? WATANABE: I move that we grant standing to the intervenor on this Special Permit Application, SPP 06-000039, because clearly I think he has an interest greater than the general public. ALAMEDA: Okay. SIRACUSA: Second. ALAMEDA: Motion made by Commissioner Watanabe to grand standing, seconded by Commissioner Siracusa. Discussion? Commissioner Graham? GRAHAM: Mr. Conventz seems like he has something he likes to say. Could we have a word from him, too. ALAMEDA: Sure. Mr. Conventz? CONVENTZ: I would like to point out to this Commission that the general public is not really aware what it means, a contested case hearing. The general understanding is that I appear before this Commission and get a contested hearing in front of all of you and present my case, and that’s the end of it. If there is any way that both parties could agree right in front of you to a certain way -, they make both the same noises because they have both Ag property and that is the basic business both have. They are not aware that a contested case hearing is before an independent -. I remember the time that one of you Commissioners was a case officer, and that’s a different story. That the last time I was in one that was an attorney from Honolulu was a case officer, and on both sides were a total of three or four lawyers, and the attorney for the Planning Director, for the Planning Commission, whoever, and a hell of a bill, in plain English, and actually for no good reason sometimes. And I would like you to make the intervenor aware of that. And if there is an easier way and not a dead end just ending up in a huge bill. ALAMEDA: Okay, thank you. Thank you for that. Commissioner Watanabe? WATANABE: Well, as a follow-up to your comments, I think we all recognize that and that’s why we spent as much time as we did, hoping that you all could communicate the situation between yourselves. However, the intervenor has stated that he has concerns because the Special Permit goes with the land, transfers and, oh well, he doesn’t have a problem with your client; he may have a problem with a future owner. And so it’s really unfortunate that we have to go that route but I don’t see how we cannot grant standing to the intervenor because he clearly has a separate interest from the general public. EXHIBIT A 10 ALAMEDA: Commissioner McCall? MCCALL: Yeah, I wanted to, I mean, I think we could probably ask our Corporation Counsel to update the potential intervenor on what his rights and responsibilities are in the contested case procedure. But I do want to correct the applicant in that the contested case procedure is a quasi-judicial thing and there are special rights, but it is up to the Commission as to who hears it. It is not, we do not automatically send this out to a hearings officer. In fact, frequently in cases such as this which are relatively, you know, small and simple, the Commission will choose to hear it; and so primary difference is that it gives an intervenor specific rights. And so I’d like to ask if the Corporation Counsel could explain what those rights and responsibilities are. ALAMEDA: Mr. Torigoe? TORIGOE: I thank you, Mr. Chair. MARTINAGE: Could I just add one thing, I think, uh-. ALAMEDA: No, you may not. Mr. Torigoe? TORIGOE: Thank you. Very briefly. Under the Commission’s Rule 4, the Contested Case Procedure, there is a couple of things: Number one, it allows for the parties to have a quasi- judicial, trial-like proceeding, as Commissioner McCall noted, that is you have the right to present witnesses and present exhibits and cross-examine witnesses and argue your case in a trial-like setting. But you also have the right to agree to a simplified kind of contested case, you know, so you can basically make it as simple or as trial-like as you want. Also, as Commissioner McCall properly noted, it is the Commission that has the choice whether it’s going to hear your case all together, and they could even do that today right now, if the parties are agreeable to that and if the Commission wants to go ahead and do that in a simplified fashion. Or, if it appears that it’s going to be a really complicated trial-like case that’s going to take a lot of time, the Commission has the option of hiring a hearings officer to conduct A contested case hearing, come back to the Commission with a report and recommendation on a decision. So, there are a range of options that the Commission can take to hold this contested case, but it does require the parties to be engaged and to be presenting evidence and to be prepared to make their arguments. And so that’s the first thing that a contested case does; it gives the parties the chance to really hash it out, you know, in a fairly formal fashion. The second thing that the contested case does is that it gives the parties the opportunity to take an appeal from the decision to the Circuit Court, if any party is dissatisfied with that, after the contested case is over, and the appeal can extend all the way up to the Hawai`i Supreme Court, if necessary. So that’s basically what a contested case signs you up for. Again, if you can talk about doing it in a very simplified fashion, then that is within your rights to do so, and may allow the Commission to handle it also in a simplified fashion. ALAMEDA: Thank you. Mr. McCall, did that-? EXHIBIT A 11 MCCALL: Yeah, that’s fine. ALAMEDA: Mr. Martinage? MARTINAGE: Yes. I apologize about that. ALAMEDA: No problem. MARTINAGE: And I do believe that that’s what we want; it’s a very amenable outcome. And to Brad, we spoke to Brad or I worked with Brad and I mentioned, and he said, “You won’t have any problem with me.” And then after, when the letter came and we were given that, immediately just gave him a call, we talked about it and I said, “Brad, you understand this would go to -. We would have to hire lawyers and things of that,” and he says, “If you want to hire lawyers. I’m not hiring lawyers.” So I don’t think we really understood that sort of contested side of it. From the beginning I’m supportive to Ag and working together; and I make just as much noise, if not more than Brad on his farm. So again, that’s just my input on that side. ALAMEDA: All right. Ms. Siracusa? SIRACUSA: Yes, I have a few questions: Number one to Mr. Martinage. Would you agree to a condition in the permit that’s stated that you would not infringe on Mr. Farwell’s right to conduct noisy operations on his farm? MARTINAGE: Yes, I would, as long as with reasonable within a -. SIRACUSA: Okay. Number two, question, Mr. Farwell, having heard now the description by Commissioner McCall and by Corp. Counsel as to what is entailed in a contested case, do you still want to go ahead with that, or would you be willing to, say, going to mediation with your neighbor? ALAMEDA: Sir? FARWELL: Yeah, I’m trying to ponder and answer this. You are basically forcing me to deal with a legal matter that, as far as I’m concerned, is out-and-out harassment. But given that, the gravity of our situation is such that if our business is going to continue, it has to be done there on the property. We’ve been in business now five years, as far as the manufacturing mac nuts. I’ve been growing the mac nuts trees for 30 years. With all I have at risk, I don’t see how I can agree to mediation or whatever because it still boils down to the simple fact that if something crops up in the middle of the night and I have to go out and do something at the crack of dawn, and Michael has got his friends and guests at the house, I have no time for heads up. I mean, this is a farm; I’m not a maintenance man, I’m a farmer. So I have to make decisions and I have to do things when I have to do them. And I don’t feel it’s fair to put me at risk with a bed and breakfast next door. I don’t see how you can reconcile the two, I mean, I know we are trying to make bed and breakfasts compatible with farm land. I don’t understand why, but nonetheless I’m not going to argue that point. ALAMEDA: All right, we hear you. That sounds like a no. So, Commissioner Watanabe? EXHIBIT A 12 WATANABE: Well, it seems clear to me that he wants to move ahead with the contested case hearing. There is a motion on the table and I believe it’s live with the second, so maybe we should move ahead, call for the vote and then decide whether we want to hear the contested case hearing or not. And I guess our next germane question is what procedure would they prefer it to go through, a trial-like or would we be able to hear it, and if we even want to hear it today or not. ALAMEDA: All right. Thank you, Commissioner Watanabe. Let’s move forward. I’m ready to call for the vote. Seeing no objections, staff? DARROW: Thank you, Mr. Chairman. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Graham? GRAHAM: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner McCall? MCCALL: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion passes to grant standing to Brad Farwell, seven to zero. ALAMEDA: All right. Next on the table, as Commissioner Watanabe mentioned, we have two options, fellow Commissioners, maybe three, I don’t know, Mr. Torigoe? But one is we could hear it here or we could outsource it. Commissioner Watanabe? WATANABE: Maybe we should leave this up to the intervenor, mainly because it seems as though, even if he’s hurt he may not be totally satisfied with the process. ALAMEDA: Or we could hear it later. That’s the third option. EXHIBIT A 13 WATANABE: Yeah, so, shall we get some input from the intervenor what he wants to see occur? ALAMEDA: Okay. That’s fine. Mr. Farwell? FARWELL: Okay, you are asking me specifically what? WATANABE: I’m asking you whether you would like to hear it today, would like to hear it later, or you prefer to hear it today in a hearing in front of this Commission and -. FARWELL: Yes. I would like this over with one way or another. WATANABE: Okay, okay. ALAMEDA: Mr. Director, do you have any thoughts on this? YUEN: Just that you ought to offer the same opportunity for comment to the applicant, and that I also want to say that it is not necessary -, it’s not required that the parties have attorneys; sometimes they choose to have attorneys. It’s particularly when the full formal procedures are followed, it’s not simple; but it isn’t required that the parties have attorneys. ALAMEDA: Okay. Mr. Torigoe? TORIGOE: That’s an excellent point, and I was going to prompt you to say that to make sure that the parties understood that this was, did not necessitate hiring attorneys. So basically if the parties are agreeable, if you just want to, you know, put on record your testimony and whatever, pictures or other exhibits you want to put in, if you want to do that today, then that can be done. That’s kind of the simplest option, and then you can go forward in formality from there to other options if that’s what -. ALAMEDA: Okay, let me ask -. Applicant? Any thoughts on what you are hearing? MARTINAGE: Basically I’m in support of, as I said before, we do not have a problem with agriculture and developing business and growing. Brad has all the rights to conduct his property as he fits within the agriculture, and I only ask that I would have the same aspect for the future so. ALAMEDA: Are you okay with us hearing this now? Or later? MARTINAGE: I’m okay, yeah. ALAMEDA: Okay. Fellow Commissioners, are you okay with hearing this now? That’s actually a bigger question, yeah? Commissioner Graham? GRAHAM: In general I’m okay with hearing this now, and certainly I’m in favor of us hearing this rather than going out to an outside party. But the only thing I keep in mind is we do have a large scale project before us today, I think it is the fifth item on our agenda, and I don’t EXHIBIT A 14 want to see us get all burnt out running all day with other stuff and not be able to give our good attention to that. So my sense is I don’t really know whether this is going to be a half-an-hour agenda item, which to me would be fine to do right now. But if it’s going to carry on till lunch or beyond or something, I feel like maybe we should reschedule it for the next meeting. ALAMEDA: Yeah, I agree. Ms. Siracusa? SIRACUSA: Well, I agree that we should hear it rather than farming it out to a hearings officer. I do not think we should hear it today partly because for the same reason that Commissioner Graham mentioned, but also because we would not then be affording both parties the opportunity to bring in witnesses and submit evidence, which is part of the whole contested case process. ALAMEDA: Commissioner Iwashita? IWASHITA: I’d like both parties to understand, and Corporation Counsel can correct me if I make a misstatement, but our Rules for the contested case hearing, well, let me preface what I’m thinking about first. What the Commission is now considering is not the substance of the application. We’ve granted, we voted to allow the petition for contested case hearing, and now we are trying to decide, or we are going to decide whether we will hear it as Commission ourselves or farm it out to a hearings officer. And then if we keep it to ourselves whether we want to hear it, you know, give you the opportunity to have us hear it today, or if we are going to continue to another time and provide you the opportunity to put together other papers, exhibits, get witnesses and all of that, which the Rules allow. So, and the bottom line rule is that the parties, both of you, can agree to change all of the rights that you have under the Contested Case Procedure in proceeding with the contested case hearing. So basically, you know, if you both agree that we can proceed today, you don’t want additional time to get witnesses or other documents, then we can do that. So, I just want to make sure that you both understand that. So, can you respond if you have any questions, or if you understood the process that I explained? ALAMEDA: Okay. Mr. Farwell, you first. FARWELL: Yes, I understand. ALAMEDA: Okay. IWASHITA: What would be your preference? FARWELL: I would like to hear it today and now will be fine. I mean, I have really no evidence -. IWASHITA: Please hold your mike close to you. FARWELL: I’m sorry. I have no presentation to speak of other than what I’m telling you now, I mean -. ALAMEDA: Okay. EXHIBIT A 15 MARTINAGE: Same here. ALAMEDA: All right. Fellow Commissioners, more information to make a decision. What’s your pleasure? Commissioner Iwashita? IWASHITA: I guess my inclination is that we ought to hear it. The parties have indicated that they want to make their presentations and let us decide, so I think we should proceed. ALAMEDA: Okay, is there a formal vote to proceed. Commissioner Watanabe? WATANABE: Yeah, I’ll make a motion that we hear it today, hear it on our own and hear it today. It seems like, I kind of share Mr. Graham’s concerns but it seems like there is not a whole heck of a lot of discovery or evidence that’s going go into this, so hopefully we can get this handled rather quickly. ALAMEDA: Okay, go ahead. Mr. Torigoe, please flush this out for us. MCCALL: I was just going to -. I think that was a motion, I was going to second but -. ALAMEDA: Okay, wait. Okay, second, okay, motion made by Commissioner Watanabe, seconded by Commissioner McCall. Mr. Torigoe? TORIGOE: Yeah, I thought it might be good just to go over a couple of things with the parties to make sure that the Commissioners understand and everybody is on the same page as to what they intend to do, if we go forward today. So, first of all, if I can ask Mr. Farwell as far as witnesses you are saying you do not have any other witnesses you would be calling besides yourself? FARWELL: No. My army consists of two, and I’m one and my wife is the other and we’re at opposite ends of the island. TORIGOE: I’m sorry? FARWELL: We’re at opposite ends of the island at the moment, so, no, I have no other witnesses. TORIGOE: Okay, so you would be the only one testifying on your behalf? FARWELL: Correct. TORIGOE: Okay. And Mr. Martinage, would you have any other witnesses, or Mr. Conventz? CONVENTZ: Just the two of us, yeah. EXHIBIT A 16 TORIGOE: Just the two, okay. All right. So, how about exhibits? Again, Mr. Farwell, are there any exhibits that you would like enter into evidence? At this point we have, I think, your Petition for Standing and your Statement. Would you like to have those entered into evidence? FARWELL: Certainly. TORIGOE: Okay. Are there any other exhibits that you want to put in? FARWELL: Uh, no. TORIGOE: No other pictures or documents? FARWELL: No. The map basically spells it out. TORIGOE: Okay, okay. So you’d like to have the map that the staff put up on the board also in evidence? FARWELL: Certainly. TORIGOE: Okay. And Mr. Martinage and Mr. Conventz, would you object to those exhibits being in evidence? CONVENTZ: No. Application and contents. TORIGOE: Okay. All right, any other exhibits that you would be trying to put into evidence? CONVENTZ: None. TORIGOE: Okay. Mr. Farwell, is there any other kind of evidence that you would want to put in besides what we’ve talked about? FARWELL: No. TORIGOE: Okay. Mr. Conventz, is there any other evidence that you would like to put in? CONVENTZ: No. TORIGOE: Okay. And finally, you’d probably be given opportunity to make oral arguments, possibly at the beginning and at the end. Normally the applicant that is Mr. Conventz and Mr. Martinage would present first, and then the intervenor, and then the applicant would have a final word on that. Would that be agreeable to you? FARWELL: Yes. TORIGOE: Okay. And Mr. Conventz? EXHIBIT A 17 CONVENTZ: Yes. TORIGOE: All right. And after that, then the Commission has to come up with a written Conclusions of Law, Findings of Fact and Decision and Order.Would you be willing to allow the Chairperson to develop the document based on the record and to issue that as a final order without having to come back for another meeting for the whole Commission to look at the final order? Is that agreeable to you? FARWELL: Yes. TORIGOE: Okay. Mr. Conventz? CONVENTZ: Yes. TORIGOE: All right. So that sounds like more or less we are looking at today. ALAMEDA: All right. So, fellow Commissioners, now you know that they are okay with the process, so now we can vote whether or not we are going to make this happen. Commissioner Graham? GRAHAM: I just want to ask the Planning Director, since he would also be a party, if he has any other considerations we should be aware of. ALAMEDA: Mr. Director? YUEN: No. The Department is ready. We would simply ask that the record which consist of the matters that were submitted to the Planning Commission in their binder, which are the application, several exhibits and our recommendation, also be admitted as exhibits. ALAMEDA: So noted. Any other questions before we move forward? Commissioner McCall? MCCALL: Maybe officially I think we need to ask the intervenor and the applicant to accept those exhibits. ALAMEDA: Okay. Mr. Farwell, do you accept the exhibits mentioned by the Director as well as -? FARWELL: Yes. ALAMEDA: Okay. Sir? CONVENTZ: Yes. ALAMEDA: Okay. All right. Motion made by Commissioner Watanabe, seconded by Commissioner McCall, to hear it now. Seeing no further discussion, staff? EXHIBIT A 18 DARROW: Thank you, Mr. Chairman. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner McCall? MCCALL: Aye. DARROW: Commissioner Graham? GRAHAM: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Rho? RHO: Yes. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: And Mr. Chairman? ALAMEDA: Aye. DARROW: The motion passes to proceed with the contested case to be heard by the Planning Commission, seven to zero. ALAMEDA: Okay. We are starting. Mr. Director? Have a seat. Yeah, move out, move up. Well, the Director is walking; we’ll take a five-minute break. RECESSED The Chair called a short recess at 10:21 a.m. RECONVENED The meeting reconvened at 10:28 a.m. ALAMEDA: The Hawai`i County Planning Commission now returning in order, please. Oh, -. We’ll take another five-minute recess, if there is no objections, until the applicants are up and ready. Five minutes. RECESSED The Chair called a short recess at 10:28 a.m. RECONVENED The meeting reconvened at 10:40 a.m. ALAMEDA: The Hawai`i County Planning Commission now returning in order. Welcome back. All right. I want to ask the applicants -. We want to make this as expeditious as EXHIBIT A 19 possible and so, but applicants, you have a -, you are first. So there are no other witnesses, no other exhibits; do you have any opening arguments in addition to -, something that we didn’t hear already? MARTINAGE: No. The other thing that I just bring to the play here is Brad’s future with his property of potentially moving his factory to the top of the land, I’m assuming that would need to go through a permitting process and have approval by the Council (sic), at that point, with the other feedback from the neighbors. So I don’t think hypothetically we should take that into the situation until that is presented, as what we are presenting through the approval process. So what we have today is what we should be working with. ALAMEDA: We have some questions already. Commissioner Watanabe, and then Commissioner McCall? WATANABE: Mr. Martinage, earlier you stated that Mr. Farwell has a vacation rental, if I heard properly. Would you care to comment on that? MARTINAGE: The only-. When I called Brad and obviously looked on the website, I think he does have a vacation rental, which is -, everybody seems to have vacation rentals. So if it’s warranted that somebody could find a comfortable existence, they are paying for a room, then certainly, it should be, if it were a permitted bed and breakfast, it’d be okay for us as well. WATANABE: Follow-up? ALAMEDA: Follow-up? WATANABE: Yeah, the vacation rental, I want to make it clear that the vacation rental is on the property that he has his manufacturing, and his mac nuts, manufacturing, and that adjoins your property? MARTINAGE: That is correct. And there is a link to another bed and breakfast which is in an agricultural zone on his webpage as well, so that’s supported. WATANABE: Thank you. ALAMEDA: Commissioner McCall? Questions for the applicant? MCCALL: Yeah, or maybe question clarification for my understanding. If Mr. Forwell -. FARWELL: Farwell. MCCALL: Farwell, sorry, wants to put, say, another husking plant or something on his property, he would need to go to get a Building Permit. That’s the only permit he would need for as agricultural endeavor in the Ag area. EXHIBIT A 20 ALAMEDA: Okay. Anything else to add before -? This is kind of their opening argument, if you will. Seeing nothing, intervenor, do you have anything else to say that we didn’t hear already? FARWELL: I do have a vacation rental on the property. It was -, when we pulled the permit back in 1990, the idea was to have two. The economy here crashed. The other half of the complex downstairs is our certified kitchen. So, to be honest with you, my wife loves the guests and I can’t stand them. It basically boils down to a restriction on what I can do around the place when the guests are there, and it’s a follow-over to the same issue with Michael. With five bedrooms, each I’m assuming going for a considerable sum on a daily basis, you can expect one person or more are there almost all the time. So the idea that there would only be occasional issues, I think, is erroneous.I consider this basically would be an ongoing harassment issue. Although I know they are trying to be accommodating and all of that, but basically it boils down to the fact that these are hypotheticals and the reality is that my farm and my business are there right now and I don’t want anything to threaten them. ALAMEDA: Okay. Commissioner McCall? MCCALL: So you do have a vacation rental on your five-acre parcel. FARWELL: Well, we have a room downstairs and my wife hooked up a link on our webpage and so forth, but we haven’t rented it out in months. It’s at best a part-time, I mean, we have two farms, a husking business, a shredding business and our mac nut business, so having time for a bed and breakfast or a vacation rental is, you know, between midnight and four. So, to be honest with you, I wish it would go away, but I can’t be telling my wife. ALAMEDA: Commissioner McCall, any follow-up? MCCALL: No, thanks. ALAMEDA: Okay. This is still questions for the applicant, I mean, for the intervenor. After the intervenor, we’ll go to the Department, and then we’ll work our way back and we’ll have the applicant have the last say, if you will. Any other questions for the intervenor? Oh, go ahead, Director Yuen, do you have something? YUEN: I thought that we were -. The procedure would be that they would simply make, everybody would simply make a brief opening statement, then everybody would present their testimony. And at that point, typically, the Commission does not ask questions during an opening statement, and they would wait for, actually, testimony where people present what they factually have to say about it. And then there would be a closing argument. ALAMEDA: Okay, we could do that. That’s good. Is that okay with the Commission? I mean, that’s the usual protocol so -. Anything else to add, Mr. Farwell, in your opening comments? FARWELL: No. ALAMEDA: Okay. Mr. Director, anything from the County’s end? EXHIBIT A 21 YUEN: Yes, just that what we would expect to -. We have put on the record through the exhibits that you already received most of what the Department would like to say. Since this has come up as an issue on the question of the right to farm, the ability of people to make complaints when there is a Special Permit, we would offer some testimony about those issues specifically when it comes our time to offer testimony. I’ll be doing that. ALAMEDA: Okay, thank you. Applicant, anything else to add? Applicant, go ahead. CONVENTZ: I would like first to submit to this Commission that the typical eco- vacation nowadays is actually what people accepted in earlier years, may be most thinks of cows and horses and cows and the early chicken; and today we are more mechanized. We use on both sides of that boundary, Martinage as well as the intervenor, machines in the morning and throughout the day, and that might be from dawn to dusk, yes. And certainly, vacationers seeking such a vacation are aware that they are on a working farm because Martinage and Nunn the applicants really offer this as such. And certainly, the noises are on both sides; there are agricultural activities, the basic activities on both properties, they are no different than any place else. And I think if in that case something additional and hardship would be imposed on Martinage and Nunn, it would be actually a singling out under the rules. And it should also be pointed out that admittedly that in the past previous owners have had some illegal activities, and it is certainly buying the property for this kind of amount what we are spending today for property of this nature and size, it is quite a sacrifice to get -, without being forced to do that right away to all those places which caused the problems in the past, possibly they are going away. And as Mr. Martinage already pointed out, that their basic business is farm activity and both farmers work the farm, and do they ever, just as loud -. Actually the last three visits I had, they were louder than the neighbor; I didn’t hear a machine from the neighbor yet. I think the problem the intervenor has is actually a little bit overboard. And therefore, I don’t think in particular -, since they like each other, they work together with each other and they are buying his produce, whenever I say “they”, I mean the applicants, I don’t see really the problem. ALAMEDA: All right. Thank you. Just to remind us on the process again, so that’s supposedly the opening arguments. All right, so now it’s like testimony and we don’t actually have public testimony. So, applicant, do you have anything else to add or to provide, you know, in terms of witnesses, exhibits, other evidence? MARTINAGE: Just one fact that it is a five-bedroom home; and whether it’s a bed and breakfast or my family of five, those bedrooms would be full. And so the respect that would be applied to that would be what I would like to bring to the table. If I have two sons and their daughters come and I have my wife and it’s a holiday, I have more people that would ever be proposed in my bed and breakfast at my house. And so for that reason, we actually are managing it more than what it would be if it was just left as the property at the -. So I appreciate that consideration. ALAMEDA: Okay. Thank you for your testimony. Sir, anything else to add in terms of the testimony part of it? FARWELL: Only that the noise issue is, is somewhat infrequent, but nonetheless it is pronounced. I would say that if the five-bedroom bed and breakfast were in operation there, then EXHIBIT A 22 I would expect problems on a regular basis.I know Michael and them are saying this is a working farm, but people from the mainland -. You can look around this hotel and see that people are walking up four or five stairs and already they are huffing and puffing. The mainland visitors, the people that are coming to these bed and breakfasts on farming, have an expectation of peace and tranquility; and whether or not Michael and Greg can provide it, for sure they are not going to get it with me. And I think it’s unfair to expect them to have a bed and breakfast with the peace and quiet and me next door making all the noise. ALAMEDA: All right. Thank you for your testimony. I think then we ask questions now, yeah? Can we ask questions now? TORIGOE: Yes, during the testimony. ALAMEDA: During the testimony, yeah. Go ahead, Commissioner Graham. GRAHAM: Mr. Farwell, I just wanted to clarify options with you and what you are seeking here today. The applicant has put forward what he would like to do with his application, and the Planning Director has made recommendation on how we should handle it. And my understanding is you would like us to simply turn down this application. Other things that we can do is we can make additional conditions such as Commissioner Siracusa brought to your attention before, or we could scale down the number of units we would approve, or -. All I am sort of saying is my understanding now is that there is no sort of intermediate position you have, but you are asking us to deny this application as is. And I’m just bringing that to your attention in case there is anything further you want to say on that. FARWELL: Well, I appreciate that. The neighbor on the other side of me -. Michael and Greg have spent a small fortune, but the Marshes next door on the opposite side have spent five million bucks on their house and theirs is even closer to my orchard than I am. Yet what they did was, when they saw the activity that I was doing and based on all the level of noise that can be generated, they moved their house to the opposite side of the property and I -. Actually I sell coffee to them and they process it, and when I buy the coffee back, I give them earplugs because that’s the only way they can really handle living in the house when I’m up there blowing or weed eating. I’ve got a 40-horse tractor and I just finally got the mower repaired, and that generates a huge amount of dust. And again that’s unavoidable; this is legitimate normal farming activity. And that’s just one end of it. The factory alone, I mean, I’m on a scale much smaller, but nonetheless just as complete as any of these larger macadamia nut companies; we process raw and we dry with dehumidifiers. But the point is it’s an existing factory and I -. In five years we’ve been in business, each year our sales have increased and there is a real possibility that I’m going to have to put a factory up at the top of the property so -. And I know I need a permit, that’s no problem, but I would not need any Special Use to put a factory in there. So again once more we are back to the issue of how much can a neighbor stand. And all I’m trying to ask is, given the level of anxiety already on my part and given the level of noise that’s normally generated in this kind of activity, I don’t see how the bed and breakfast can be compatible. ALAMEDA: All right. Did that answer your question, Commissioner Graham? GRAHAM: Thank you. EXHIBIT A 23 ALAMEDA: Seeing no further questions for the intervenor, I’d like to ask the Department to provide testimony. YUEN: I just like to -. There are a couple of questions I’d like to ask Mr. Farwell. Do you know on a quantitative level, like decibels, a noise level produced by your factory? FARWELL: When the cracker is running, it’s 120. YUEN: And that’s measured close to the factory? FARWELL: That’s within about twenty feet of the cracker. I put the cracker in a sound-insulated room, and I’m trying to use a special type of acoustic material. It holds the noise down but it is considerable. The cracker is running at 15 nuts a second and it’s air actuated, so what you are hearing is a hammer -. It’s a complicated process, but you have a nut hitting an anvil and bouncing back, and as it bounces back the piston hits it. So you have a ricochet action and in this ricochet action, it sounds just like a Gatling gun. YUEN: So that’s 120 -. How close to the factory? Just right outside it, that close? FARWELL: Well, a noise travels up a lot. I was surprised the other day. Because I’ve further automated the system so that I can move away from the cracker, I don’t have to, actually have to be there. And it’s got a considerable wrap some distance out. YUEN: You’ve measured this with a noise meter? FARWELL: Actually it is so loud you can’t get anywhere near the cracker without a hearing protection, so it’s a -. The meter itself that we’ve used before, it showed 115, but that was not that close to the machine. It was way above anything anyone could stand. Human, if you get about 95 decibels, you are starting to get into serious problems. YUEN: How long have you been doing this macadamia nut cracking operation? FARWELL: Five years. YUEN: And the three complaints are the only ones that you -, the only times you’ve had noise complaints or other complaints from the neighbors on your farming operation? FARWELL: No. Those three were the only ones. YUEN: Those three were the, okay. FARWELL: And they all came from the same place. That’s why I’m concerned. YUEN: Okay, thank you. ALAMEDA: Mr. Director, do you have anything to add to your testimony or -? They were mostly questions, yeah? Go ahead. EXHIBIT A 24 SELF: Just for the record, I’m Amy Self, Deputy Corporation Counsel representing the Planning Director. ALAMEDA: I guess I need to swear you in, both of you. Do you swear or affirm to tell the truth now before the Hawai`i County Planning Commission? YUEN: Yes, I do. SELF: Yes. ALAMEDA: Okay, thanks. Go ahead. SELF: Mr. Yuen, what are the laws regarding right to farm, and how do they work in this situation? YUEN: Just for the record, I’m Chris Yuen, Planning Director, 101 Pauahi Street, Suite 3. As one of the Commissioners mentioned, there are right-to-farm laws that, I won’t try to go into any detail about them, but they do protect farmers to engage in the common farming practices, like riding tractors, running equipment, spraying chemicals, spreading fertilizer, spreading manure, branding cattle. All those kinds of things are, you know, basically protected in the law against private nuisance complaints. SELF: And do these offer complete protection for farming? YUEN: No, they, well, from, certainly from the farmers’ prospective, there is at least two aspects where they don’t completely protect the farmer. The first is that, the first aspect is that individuals can still make complaints. They may eventually not be substantiated. But in a meantime, say, the neighbor who is offended by a particular farming activity can call the Department of Health, the Planning Department, the Police Department, the EPA to come out and investigate and see whether there are violations in fact occurring. At the end of the investigation, it may be determined that the activity that is being complained of is protected by the right-to-farm laws, but in a meantime the farmer is experiencing the complaint. The second thing is that there are standards that are, for many of these activities.There are, there is for example a noise standard by the Department of Health; and if a farmer in agricultural activity exceeds the noise standard, they are not protected or -. So is this good or bad? Well, you know, from the farmer’s point of view, you know, he’s not happy, you know, but there are these standards that exist for protection of neighbors and public health. Another example would be pesticide use, all right? You know, sometimes there are farmers actually violating the pesticide rules in terms, it might not be a licensed operator, or they might not post -, there are sometimes signs you are supposed to post, there is equipment you are supposed to use. They might be in violation of that. And so it doesn’t mean that -, the right-to-farm laws don’t mean that you can’t ever have a complaint that either causes some inconvenience for the farmer. Or actually it may be substantiated and the farmer has to change the practice that they have. ALAMEDA: All right. Ms. Self, is there anything else you have to ask Mr. Yuen? SELF: Yes. Have similar conflicts come up, similar to this conflict? EXHIBIT A 25 YUEN: Well, you know, the conflicts between the neighbors and the farmers certainly do come up. I don’t -. I’m not aware of any similar -, I’m not aware of a problem that has come up where it’s a bed, specifically a bed and breakfast or bed and breakfast guests. The closest thing I can think of is we had an enforcement matter against a motorbike track, and there was testimony and the Department was saying that the motorbike track was not allowed. There was testimony from an individual, who had a bed and breakfast, against the motorbike track. So that’s about the closest thing I can think of, and then particularly saying that, look, you know, he is in business, he has guests and they are upset by having to listen to this kind of noise, not specifically on a farming activity, though. SELF: Okay. How far can the Planning Commission go in limiting complaints by the bed and breakfast operators? YUEN: Well, it’s hard to put a condition that says somebody cannot make a complaint, particularly if the activity in question, you know, may be in violation of a noise standard, may be in violation of pesticide/herbicide regulations, may be in violation of some other standards. So I don’t think that we would recommend putting sort of a blanket condition that the bed and breakfast operator can’t make a complaint, period, and I don’t know where to draw the line there. But I do have trouble with putting a condition that says, you know, that it says you can’t make a complaint because you have a right. Particularly, you know, you can’t say ahead of time that nothing that’s been done on the adjoining property -, it may violate one of the standards that does exist, and to say that they can’t make a complaint about it is a little difficult. ALAMEDA: Any other questions? SELF: Just couple more. Have you ever received complaints by bed and breakfast guests against these types of activities? YUEN: I’m not aware of complaints specifically from a bed and breakfast operator or guests against neighboring farm activities. SELF: Is there anything else you’d like to add? YUEN: Well, you know, just, and -. Thinking out loud about other kinds of conditions that could be put on -. One aspect, the only thing that really came to mind was, has to deal with expectations of the guests that you can put a condition on, the advertising of the property that would emphasize that it’s on a working farm, it’s in the vicinity of a working farm. It is, you know, the place should not be advertised as a, like a Zen monastery retreat kind of setting, because apparently it’s not. Other than that I’m not really -. Additional kinds of things that might reduce a potential conflict here are not really surfacing to me. ALAMEDA: All right. SELF: That’s all. Thank you. EXHIBIT A 26 ALAMEDA: Thank you for the line of questioning. Let me ask Commissioner Siracusa first, and then Commissioner Watanabe. Do you have any questions for the testifier the Department? SIRACUSA: I have a question for the Director. ALAMEDA: Sure. SIRACUSA: Years ago when I was active in the whole issue about geothermal and we were looking at the Department of Health noise regulations, as I recall, in an agricultural area if it were 75 decibels, and there was difference between day and night also, but it had to do with stationary sources or moving sources. And therefore, a tractor being a moving source would not be covered under that, whereas a plant that was cracking macadamia nuts would be considered a stationary source. So would you comment on that in relation to the right-to-farm thing that you were talking about before? ALAMEDA: Mr. Director? YUEN: Yes. You are absolutely right, except for the number. The Department of Health does not regulate moving sources like a noisy tractor; it does regulate stationary sources like potentially a macadamia nut husking facility or, you know, a mill, you know, so -. And the number is 70 dBA, and day and night that’s the same number. It’s, and one thing I need to caution, I mean, we had this testimony on 120 decibels. The dBA can be a little bit different; there is a weighting. When you get a decibel meter, there is a different weighting of the decibel meter. There is dBA, dBB, and, well, mostly they go with dBA or dBC, and the number can be different depending on the weighting. But the Department of Health standard is 70 dBA, and I believe that’s measured at the property line. It wouldn’t be, you know, it wouldn’t be measured, you know, ten feet from the facility itself. So and just to give you an idea, that’s fairly loud. I mean, as far as somebody -, it’s something that you would sit there and notice if you had 70 dBA going on. If we had a source for example here that was 70 dBA, it’s something like if you had an idling lawn mower in the middle of this room here, it might be something like that. I mean that is a fairly loud noise and, as a witness testified, 100 plus is really, really loud. I don’t know what it’s like at the property boundary at all. ALAMEDA: Ms. Siracusa, follow-up? SIRACUSA: Yes. I’m thinking in terms especially of the husking facility, which is a stationary source and which, by Mr. Farwell’s own admission, exceeds the 70 dBA. And I’m wondering how we can address his concern that the right-to-farm laws might not protect him, should Mr. Martinage and his partner choose to make an issue. YUEN: Well, I wouldn’t jump to that. I asked him the question about his noise just to get an idea if he’d actually -, you know, and then it turned out he had looked at this. And I wouldn’t jump to the conclusion that he is not in compliance, because of this dBA versus dBC issue, you know. I don’t know what dB weighting he was using in measuring that, plus I’m not entirely sure-, I’m not sure where the Department of Health measures this from and whether it’s at a property line or not. So I wouldn’t jump to the conclusion that he is out of compliance. However, if he is not, you know, if he isn’t, not in compliance with the Department of Health, EXHIBIT A 27 then a neighbor or any interested person can make a complaint to the Department of Health and have them go up, and they might make him do something about the facility. There is -, and I don’t know that if there is anything we can do as a condition that would prevent that. And in a way it’s, for that matter, the owner of the property, you know, with or without a bed and breakfast, the neighbor on one side and the neighbor on the other side can make a complaint right now. SIRACUSA: Thank you. ALAMEDA: On this side, Commissioner Watanabe, any questions for the Department, Mr. Director? WATANABE: My question is to the Director. Mr. Director, from the testimony that’s been provided this morning, do you have any special concerns or was there anything alarming that might substantiate the intervenor’s concern that, you know, his right to farm might be affected? ALAMEDA: Mr. Director, is the intervenor’s right to farm affected, you think? YUEN: Well, I mean if you want a bottom line on this, I’m sticking with our favorable recommendation. I think that these are issues that need to be worked out; that they are the kind of things that need to be worked out between neighbors. I think that you may have some of these problems whether you have a bed and breakfast there or not. I don’t have much more to suggest on the way of conditions. I do think, you know, I certainly think the neighbor’s issue is legitimate and I understand what he is saying and I -. WATANABE: And possibly, by your testimony, possibly providing the condition that Mr. Martinage advertises that as a B&B located within an Ag District and that, you know, farm noise should be expected might help with this? YUEN: That’s the only thing that’s really come to mind with me, as far as conditions that would deal with this. WATANABE: Okay, thank you. ALAMEDA: Okay. Final questions for the Director? Seeing none, applicant, you have the final say to respond to any of the testimony before we move forward? CONVENTZ: I would like just one short reminder that Mr. Martinage already admitted that he would be willing to, if you cannot impose the condition, a voluntary condition, that he will not file or would not file a complaint as long as the intervenor stays within the limits of the law. For instance, noise regulations as they apply to anything else that could be assured, maybe you cannot impose that on him, and he said he had no problem. He said, as long as the neighbor stays within the limits of the law, that he would not file such complaints and he would not entertain that, and would make his clients aware that they are indeed visiting a working farm in a working farm neighborhood. EXHIBIT A 28 ALAMEDA: All right, thank you. That concludes the testimony, and just for the record, all witnesses, exhibits and other evidence have been provided. And so we have an opportunity now, I think, to, Commissioners to close the testimony. Is that correct? TORIGOE: What do you want to do? ALAMEDA: I want to close the testimony and move forward. TORIGOE: Okay, so at this point, basically you want to close the hearing? ALAMEDA: The hearing. TORIGOE: Yeah, okay. You can allow for closing statements. At the end of the presentation, this is your Rule 4-22, at the end of the presentation of the evidence, submission of briefs and oral arguments, if any, the Commission or the hearing officer shall close the hearing. ALAMEDA: Okay. Let me end with some-, ask the parties for any closing statements. I’m going to ask the applicant first. MARTINAGE: Just first and foremost, I’d like to thank you for the opportunity. Second, we feel as a partnership that it is important to do the right thing as we are pushing forward, and that is to build a business that is viable for the future in the place that we have chosen to live. And for that we feel that, you know, we are supportive of our neighbors, we are supportive of the Ag, we are supportive of the County, and for that that’s the reason why we’ve decided to live here. So we look of it more of a stewardship and like contributing an artist in the community as opposed to an adversary. So if the noise is louder than what it’s supposed to be, as it was, we really haven’t had a problem to date. So if it’s 20 or 30% higher than what it needs to be and we haven’t had a problem, we don’t have a problem. So we, again, we thank you for your consideration, and we do appreciate Brad’s point because we do. It takes a village and he is a good, he is a good neighbor. And if I was having a concern about something, I would not hesitate to go to him and ask him for his manao in there and to share what he has cause I do value what he is doing over there. And again we are looking to do the right thing from the beginning, and not to take what is a substantial step in our lives and have it not put together properly. So we thank you very much. Mahalo. ALAMEDA: Thank you. Closing statements, Mr. Farwell? FARWELL: Yes. Concerning the noise, the husking shed got permitted back in 1999, the husker itself is open. Actually I was told by the County I needed to do that anyway because of the dust issue; you enclose a husking machine inside of a room you create a hazardous fire issue. The cracker itself is in a fully enclosed, insulated room that I have tried my utmost mostly because I don’t want to go deaf myself. To ensure that my noise levels are where they belong, having worked as a heavy equipment operator for 25 years, I know about noise, and having a farm for about the same length of time, I appreciate the level of noise that is generated with various machines. Again, if in the great wisdom of this Council, they decide, or this Commission did, you guys decide that it’s okay for the bed and breakfast to try and coexist with me, then I have no choice in the issue. But again, I submit that I foresee difficulties coming down the road. EXHIBIT A 29 ALAMEDA: All right, thank you. FARWELL: Thank you. ALAMEDA: You’re welcome. Final closing arguments, Mr. Director? YUEN: Just briefly. As I said a couple of minutes ago, I understand the problem that’s being discussed here, and I have to say on balance we would still stick with our favorable recommendation. The only condition that I would suggest is a condition that advertising emphasize that it’s on a working farm, that there may be noise from that and from neighboring agricultural activities. The Commission makes a decision as to whether the proposed bed and breakfast has an unreasonable effect on surrounding properties. This is a little bit unusual because it’s not really being argued that the bed and breakfast itself is incompatible, but that it might lead to complaints about adjoining properties. I think that is a valid concern of the neighbor. I do think that these issues are things that need to-, they are supposed to be worked out. The right-to-farm law does protect the adjoining farmer as long as he operates within certain standards, which are also set by law and which you are supposed to comply with in any event. The final comment I’d like to say is, though, we generally have supported bed and breakfasts as a way of people, as an individual, sharing directly in the tourist oriented economy. We do -, it is important that they operate -, that they not interfere with agriculture. We would look certainly at this area and say that continued agricultural activities, including necessary processing activities like husking macadamia nuts that are in fact allowed in agricultural areas, abide the zoning laws that are, the zoning laws simply permit. And for understandable reasons, they simply permit agricultural processing to occur, that that is a primary activity in the area. And if the Commission does feel that they are incompatible either in this case or in general, then the decision would be made to support agriculture. We haven’t had this as a -, this doesn’t necessarily come up as an issue because there is an existing farm. I mean, we have allowed bed and breakfasts in areas where potentially there could be a farm next door, and the farm next door would also have legal protection if it started later. But we haven’t -, very often we’ve approved bed and breakfasts where theremay be actually good agricultural land around, but it’s fallow at the present time. So this is something that can come up in those kinds of circumstances. I think this is the first one we’ve dealt with where a working farmer next to a bed and breakfast has been concerned about approving it. ALAMEDA: All right. Let me see if we can ask questions -. WATANABE: I have a procedural question. ALAMEDA: Go ahead, Commissioner Watanabe. WATANABE: My procedural question is for Mr. Torigoe. I’m wondering, you know, cause we are talking about this condition, and if we close the hearing, I don’t believe we are going to add anything new to what’s already been there. Would this be an appropriate time to introduce the condition about potential farm noise in the advertising on the record? EXHIBIT A 30 ALAMEDA: Mr. Torigoe? TORIGOE: Yeah, you could do that. I think at this point it seems like the final arguments are done, and it would be an appropriate time for you to just kind of talk to the parties about what kind of condition you might want to add. ALAMEDA: Commissioner Watanabe? WATANABE: I’m wondering, Mr. Director, if you could maybe craft that condition, if you want to have that as about a new condition like 6 or 7, with regard to the advertising and making potential customers aware that, you know, there is a potential for noise? YUEN: It would say something like this: The bed and breakfast customers shall be made aware through all advertising and through other information given to them that the bed and breakfast is located in an active farming area and that there are noise and other impacts that result from the farming activity. ALAMEDA: Thank you. All right. Procedurally we do go back to the applicant for the final final, so I guess -. Okay, are you done, so we can move forward? Sir? CONVENTZ: We agree with what the Planning Director just said should be part of it. ALAMEDA: All right, thank you. Mr. Torigoe, do we have to make a motion to close the hearing, public hearing? TORIGOE: Well, the Rule says that the Commission or the hearing officer shall close the hearing. It doesn’t hurt to have a motion. ALAMEDA: Okay. Can I entertain a motion to close the hearing at this time? Commissioner Watanabe? WATANABE: Yeah, I move to close the hearing. SIRACUSA: Second. ALAMEDA: Good. Motion made by Commissioner Watanabe, seconded by Commissioner Siracusa. Discussion? Seeing none, staff? DARROW: Thank you, Mr. Chair. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Siracusa? SIRACUSA: Aye. DARROW: Commissioner Graham? EXHIBIT A 31 GRAHAM: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner McCall? MCCALL: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: Commissioner, Mr. Chairman? ALAMEDA: Aye. DARROW: The motion passes to close the contested case hearing, seven to zero. ALAMEDA: Can I entertain a motion? Commissioner Watanabe? WATANABE: I move to approve Special Permit Application SPP 06-000039, based on the Director’s recommendations and inclusive of a new condition stating that the bed and breakfast customer shall be made aware through all the advertising that the bed and breakfast is located within an Agricultural District and farm noise and other related activity should be anticipated. ALAMEDA: Is there second? SIRACUSA: Second. ALAMEDA: Motion made by Commissioner Watanabe, seconded by Commissioner Siracusa. Discussion? Mr. Graham? GRAHAM: I just would like to sort of put my take out on -. It seems like we do have a whole set of rules for what is required for a Special Permit. And it does seem like, from our recommendation from the Director and from what we hear today, that this does adhere to those rules, and that the situation where neighboring activity might be detrimental to the operation of the bed and breakfast is really not part of our rules that would give us legal basis to deny it. On the other balancing side, I think, you know, we do all properly carry our concern that we don’t want to permit some business or activity that we can see it’s going to be a failure or cause problems. So I think we are kind of caught between those two things. And I personally -, I guess I would vote in favor only on the sense that I think our legal basis kind of indicates that we should, and also that I don’t think I can take my judgment above the applicant’s judgment as saying whether it will not be successful for him. ALAMEDA: Commissioner Iwashita, your take? EXHIBIT A 32 IWASHITA: Thank you, Mr. Chair. I speak in opposition to the motion. My view of the standards that we are to apply: One, whether the proposed use is an unusual and reasonable use of land. I don’t think the record -, well, I think there is sufficient evidence in the record that we can find that the proposed bed and breakfast is not a reasonable use of land. The, both applicants’ land and the adjoining lands are in active agricultural use, which is what they are supposed to be and that’s what they are supposed to be used for. So what we are being asked to do is basically add on a use that’s not allowed under our Zoning Code. And we have to decide whether or not this additional use is reasonable under our standard in this Ag District, and the burden is on the applicant to show that it is reasonable. And I don’t -, you know, given all the circumstances including the fact that there is an existing farm with an adjoining owner that has concerns about, you know, the adverse impact of his operation on his neighbor’s proposed bed and breakfast, that in my mind is sufficient to find that the proposed use is not a reasonable use of land. Because it’s inherently creating this conflict which, you know, whether there is actual problems or not, you know, there clearly is a perceived problem and there may be actual problems. So we should be very cautious to create a circumstance where we actually create a problem, where we would be creating a problem. So that’s Standard One. Standard Two is the granting of the request would promote the effectiveness and objectives of Chapter 205, Hawai`i Revised Statutes, you know.And this property, if I read the application correctly, is designated important agricultural land, right? This is not just Ag land; this is important agricultural land. So we, as a body, I think, should look at that. And, you know, Governor just said in her talk at her inauguration that, you know, her focus is going to be on protecting these lands, especially important agricultural lands and in -. I think that this body ought to take that into consideration that these are important agricultural lands and are being actively cultivated, and that, you know, any other use or this particular use basically would detract from that because it is not an Ag use. So, I think, on the second standard also, that the request does not necessarily promote and it may in fact detract from the effectiveness and objectives of Chapter 205. Third standard is whether or not the proposed bed and breakfast shall not -, the proposed bed and breakfast shall not be contrary to the objectives sought to be accomplished by the Land Use Regulations. Again, based on what I said before, I think we can find that this standard is not met based on this record. The fourth standard is that the proposed bed and breakfast would not adversely affect surrounding properties. Mr. Farwell has made it clear that it would adversely affect his farming operation by placing a dampering effect on how he can operate his farm and any other potential farm in the area. The next condition is that the bed and breakfast will not unreasonably burden public agencies. Well, once we create the potential conflict of the farming operation and complaints and so forth, we are creating a situation where we basically add to the potential for complaints to be made to the Department of Health, other administrative agencies and additionally burden them where it wouldn’t be there if the bed and breakfast were not there. EXHIBIT A 33 So based on that, essentially I find that there is enough concern here and enough basis in the record to find that the proposed use is not reasonable, that it will have adverse effects, and therefore I cannot support the motion. ALAMEDA: Thank you, Commissioner Iwashita. Ms. Siracusa, your take? SIRACUSA: Okay, I’m going to follow right along in the footsteps of Commissioner Watanabe and do them one at a time in a rebuttal form. Oh, sorry, Iwashita, not Watanabe. Pardon me. The proposed use is an unusual and reasonable use of land situated within the Agricultural District: I do not believe that it is unreasonable because we have a whole lot of B&Bs which are being permitted all the time and have been in the past in agricultural areas. A lot of farming operations, as we know, cannot exist in a vacuum all by themselves. They do not have the potential to generate enough income especially when farms are, you know, victims to the vicissitudes of weather and El Nino and all sorts of stuff like that. So very often farmers get extra jobs on the outside, you know; and so I don’t think it’s any problem to say that he can have a bed and breakfast on this land because he is planning to continue farming it. He says right in the application that he is going to be planting more citrus and coffee trees and stuff like that, which that land is certainly suitable for tree crops. So as far as the desired use adversely affecting surrounding properties, I think what we’ve heard here is the reverse; that the surrounding property or one of them was concerned that his use would adversely affect the bed and breakfast operation. And I feel that it’s up to Mr. Martinage and Mr. Nunn to decide if they can handle that. If they feel, you know, they have the option to do other things, and if they feel they can go ahead, they have to make their own business decisions and be responsible for the results of those business decisions. I think they have agreed to, you know, insert conditions regarding that they, you know, will expect and not lead their guests to expect peace and quiet, that they will disclose to their guests the fact that they are operating on a working farm and in an area surrounded by other working farms. So basically I think I have no problem supporting this, provided that we put in some protections for Mr. Farwell. And as we know, we also have the, you know, noise regulations promulgated by the Department of Health, we have rights-to-farm laws, and I think that those can adequately support the concerns that Mr. Farwell has. ALAMEDA: Thank you, Ms. Siracusa. Mr. McCall? MCCALL: Yeah, I’m fairly torn in this situation. I do feel a strong need to support agriculture. I think this is a good example of an important agricultural area, definitely seen the encroachment of, you know, suburban living and all that that entails. I guess the bottom line for me is that I think that the activities that Mr. Farwell is working with and proceeding with are normal activities in an agricultural area, and I see that with what is being proposed, I see that there will be an unreasonable burden will be put on Mr. Farwell. Whether we can put a note in saying that the bed and breakfast can’t complain or whatever, that doesn’t cut it; that doesn’t mean that any and every person that comes to the bed and breakfast, they are under no rules by us not to call the police or whatever because they think that there is too much noise. I think that there is a possibility if this was in somewhat of a smaller scale or there were some situations to mitigate the noise operation on the part of the applicant, that I might feel a little better about this. But as it is, I think that I cannot support this as it is. EXHIBIT A 34 ALAMEDA: Let me make sure we get round one taken care of. Commissioner Rho, anything to add? It’s up to you, you don’t have to, but if you want to. RHO: I also have mixed feelings about this one. As we were going around, I actually wrote out a -, I guess I would have added as No. 5 and then moved everything down, but mine would have said that the applicant will advertise the bed and breakfast as located in Ag Zone surrounded by active farms and offer an experience living on a working farm with attendant sights and sounds. And I guess if I was the person looking for a bed and breakfast and I read that on a website, I would think of mooing cows and tractors and not a popping Gatling gun. So I mean, I’m not really sure how I’m actually going to vote when the vote actually comes. But I guess my concern is that, it’s really along the lines of Commissioner McCall, if it was in fact what I would consider a normal farm, whatever that means, I’d have no problem voting for the bed and breakfast. ALAMEDA: All right. And fellow Commissioners, let me just remind you that this is an opportunity for us to just put on the table what we feel, and it’s not really an opportunity for us to try to convince each other or debate the issue. So I appreciate the discussion up to this point. Commissioner Watanabe, anything to add? WATANABE: Yeah. I’m a great believer in the market place, you know, and I believe that the market -, as long as consumers are informed that they should be expecting, you know, not peace and quiet but some noise, that the market in the end will determine, and it could well be that the market where people are willing to accept the noise for B&Bs is too small, and the venture might not be successful. But I would prefer to let the market place decide that, rather than we attempt to anticipate the reaction of the market, because often times when you try to anticipate, you anticipate wrong. And my final concern is that I think we are opening up Pandora’s Box, if we are going to draw the line at this point for B&Bs in agricultural areas, when we have historically approved them in the past. I mean, who then determines what is unreasonable? And I think that’s going to present a real issue going forward. So I believe that there is sufficient protection for the intervenor as long as we require the advertisements to be honest and indicate that it is on a farm. Now whether that person’s vision of a farm is cows or crowing chickens at 5:30 in the morning, I don’t know. I think, again like I said earlier, I’m a real believer in a market place; let the market place determine. And, you know, with the internet, with the blogs, they are going to find out real quick what it’s like, and if it’s undesirable then people won’t show. ALAMEDA: All right. Fellow Commissioners, again, everybody did have a chance to say what they needed to say, and I’m a little afraid of going to round two because that would trigger a whole another circle of conversation. But if we need to, if there is a burning statement that you want to make, you can go ahead and make that. Commissioner Iwashita? IWASHITA: Thank you, Mr. Chair, I appreciate your deference. I also like to think I’m a believer in a market place, but I also believe that this body has an obligation to implement -, apply in each particular instance, as in this Special Permit Application, the standards that we need to. Therefore, as I indicated earlier, my assessment of what those are -. I neglected to say that in addition there are a couple of other factors. The right-to-farm law: I think, you know, as a public body we always need to take into account other public policy and the Legislature has expressed the policy with regard to agriculture and agricultural activity and protecting it in part EXHIBIT A 35 through the right-to-farm law. So I believe that that’s an additional basis in which we can rely upon in denying this application. Going back to the market place analysis, you know, the market is never a level playing field even though it’s argued sometimes that it is. And, you know, in this particular instance, you know, we have Land Use Regulation for a reason and that is to do the best that we can as a community to develop the kind of community that we want to live and doing that on a long-range basis, and not allow creep to occur and we end up with a community, you know, which is not a preferred future. So I think that in my mind that is really an overriding concern, and it’s called land use planning for reason. We need to anticipate certain things are planned for things that aren’t really anticipated with. We need to take actions that effectuate the plans that we have. And so I think that denial of this application is not a random thing; it’s substantiated by the record. And in my mind that’s the controlling analysis. Thank you. ALAMEDA: Any other closing comments or thoughts? Ms. Siracusa? Mr. Rho? Mr. Graham? Mr. McCall? Seeing no further discussion, staff? DARROW: Thank you, Mr. Chairman. The motion is to approve with the added condition regarding advertising to the B&B customers regarding the farm activity. ALAMEDA: Mr. Darrow, real quick, let me just -, so everybody knows what happens, especially for the intervenor. Could you share, Mr. Torigoe, what happens with-, some scenarios on the vote just so they know? TORIGOE: Well, you need five votes in order to either approve or to deny the application. If you fail to get five votes one way or the other, the Commissioners will have the opportunity to try to make another motion, if someone has another idea. Perhaps, as Commissioner Rho was saying that perhaps a stronger condition might work for some of you. And if you are not able to come up with something that will garner five votes one way or the other, then normally we re-agendize it for at least one more time. Under your Rule 6-7, within thirty days after the close of the hearing or within a longer period as may be agreed to by the petitioner, the Commission is supposed to make a decision on this. ALAMEDA: Staff? Go ahead, oh, hold on. Commissioner Iwashita? IWASHITA: Just-, failure to make a decision in 30 days -? TORIGOE: It doesn’t say but again it says within a longer period as may be agreed to by the petitioner as well. ALAMEDA: Okay. Very good. Thank you, Mr. Torigoe. Staff? DARROW: Thank you, Mr. Chairman. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Siracusa? SIRACUSA: Aye. EXHIBIT A 36 DARROW: Commissioner Graham? GRAHAM: No. DARROW: Commissioner Iwashita? IWASHITA: No. DARROW: Commissioner McCall? MCCALL: No. DARROW: Commissioner Rho? RHO: Aye. DARROW: And Mr. Chairman? ALAMEDA: No. DARROW: The motion does not pass three to four. ALAMEDA: Mr. Torigoe? TORIGOE: As I said, the Commissioners can see if there is some other motion that they would like to make, or you can continue it for the next meeting. ALAMEDA: Is there another motion, or shall we see them on the agenda again next time? Commissioner Watanabe? WATANABE: I think we should continue this to the next meeting because I don’t believe anybody is going -, in fact, it seems like one of us changed our mind after the -. So I don’t see where we are going with this. ALAMEDA: Okay. If there is no objection, I’d like to just continue this to the next meeting with hopefully different Commissioners or different prospectives. There is no objection to that? Seeing none, Mr. Darrow, it’s on the next agenda for the next meeting. I suppose in January? Okay. I want to figure out when the next meeting is before we formally -, just for the record. Mr. Hayashi? th HAYASHI: The next meeting would be, on the west side, I believe it was January 17. ALAMEDA: Okay. That’s more than 30days. Is that agreeable to the applicant that we th revisit this on January 17? CONVENTZ: Yes, sir. EXHIBIT A 37 th ALAMEDA: Okay. So it’s continued to January 17. Thank you for your patience. Thank you for your time. It’s ten to twelve. Commissioner McCall? MCCALL: Quickly. Would more evidence be presented at the January meeting or is it still closed, just for deliberation? TORIGOE: The hearing is closed unless the Commission votes to re-open it. th ALAMEDA: Oh, Mr. Hayashi, it says January 19 on the -. Is that correct? So we go th with the form? It’s January 19 on the form. HAYASHI: I don’t have my calendar with me here. th SIRACUSA: Mr. Rho has it right here. It says the 19. th HAYASHI: Okay. Stand corrected January 19. ALAMEDA: So noted, for the record. SIRACUSA: Tell them out there, quick. Somebody, run after them. ALAMEDA: Somebody will inform the applicant? HAYASHI: They will be sent a letter. ALAMEDA: Okay. The discussion ended at 11:51 a.m. Respectfully submitted, Noriko Sauer, West Hawai`i Secretary EXHIBIT A 38