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HomeMy WebLinkAbout2007-12-12 TIBBETSON PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT DECEMBER 12, 2007 DANIEL IBBETSON (SPP 05-000015) A regularly advertised hearing on the application of - was called to order at 2:05 p.m. at the Waikoloa Beach Marriott Hotel, Alii I, 69275 Waikoloa Beach Drive, Waikoloa, Hawaii, with Chairman William Graham presiding. PRESENT: William Graham ABSENT & EXCUSED: Andrew Iwashita C. Kimo Alameda Takashi Domingo Shelly Ogata Alvin Rho Rene’ Siracusa Rodney Watanabe Rell Woodward Ivan Torigoe, Deputy Corporation Counsel Norman Hayashi, Planning Program Manager Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner Dennis Krueger representing Applicant Michael Matsukawa representing Intervenor Christopher Yuen, Planning Director And 4 people from the public in attendance. APPLICANT: DANIEL IBBETSON (SPP 05-000015) Action on the application for a Special Permit to operate a 2-unit bed and breakfast establishment on 0.722 acre of land situated within the State Land Use Agricultural district. The property is located along the west (makai) side of the Mamalahoa Highway (Highway 11), approximately th 120 feet south of the Kaohe Road-Mamalahoa Highway intersection, Kaohe 5, South Kona, Hawaii, TMK: 8-7-9: 14. GRAHAM: Our next item on the agenda under Unfinished Business is a Special Permit application by Daniel Ibbetson. This, we’ve had this before us several times before. We are here to take action on a permit to operate a 2-unit bed and breakfast establishment on 0.7 acre of land in the State Land Use Ag district.It’s located along the makai side of Mamalahoa th Highway, approximately 120 feet south of the Kaohe Road intersection in Kaohe 5, South Kona, Hawaii. Jeff, if you could kind of refresh us on this application? DARROW: Thank you, Mr. Chairman. If I can direct your attention to the location map, the area of this application is within the South Kona District. More specifically on your map, looking through the middle of the map and running in a north-south direction is Mamalahoa Highway. We have the Kona Palisades (sic) Subdivision identified near the subject application. EXHIBIT D 1 The subject application is identified with a blue dot that is just south of the Kona Palisades Subdivision – I’m sorry, Paradise Subdivision, Kona Paradise.Looking at the submitted site plan, we have Mamalahoa Highway running on the top of the map; to the left side of the map, we have the driveway access from the Highway to the property, and we have the layout of the bed and breakfast operation as well as the dwelling.This is a 3-bedroom single family dwelling, the 2 units for the bed and breakfast are identified in purple and pink, and we have the owner’s bedroom. We also have a pool area. As you might recall, we also have two areas identified as Area A and Area B, which are in red that signify the areas where there are gravesites located on the property. The applicant in this case, Daniel Ibbetson, has requested a Special Permit for a 2-bedroom bed and breakfast. The application was denied by the Planning Commission originally on January 20, 2006. The applicant had appealed the Planning Commission’s decision to the Third Circuit Court, at which time the Third Circuit Court reversed the decision of the Planning Commission and remanded it back for further proceedings. At our last Planning Commission on November 16, 2007, a motion was made to deny the applicant’s request and adopt the intervenor’s proposed Findings of Fact, Conclusions of Law, Decision and Order. The motion did not pass, two ayes to three noes. Are there any questions? GRAHAM: Thank you, Jeff. I think next I was going to ask our corporation counsel to give us a little update on how we should proceed at this point.But if you have anything specific for Jeff, we could ask now. Ivan, could you give us, then, a little synopsis of how you think we should proceed today? TORIGOE: Thank you, Mr. Chairman. As you know, the Commission has gone through a contested case hearing; that hearing has been completed. You have the record before you. The parties have submitted proposed findings, conclusions and decisions; you have three different versions of that. And at the last meeting, I believe that the parties agreed to extend the time for decision at least until this meeting. And so at this point, it is for you to make a decision either to grant or deny the permit. You can use any of the three proposed sets of findings and conclusions as a base for that. And you can also make changes to the conditions or other parts of the proposed decisions. WATANABE: Mr. Chair? GRAHAM: Thank you. Commissioner Watanabe? WATANABE: Yeah, at the last meeting, Mr. Ibbetson had already left at the time that we concluded that we could probably continue it to this meeting and the deadline was this meeting. And I’d like to take the opportunity now, since Mr. Krueger is here, to see if he will confirm that Mr. Ibbetson had agreed, or at least in principle, to continuing it to this meeting; just because it may become technicality that, you know, could be interpreted as this meeting, any decision we arrive at this meeting is null and void. GRAHAM: Mr. Torigoe, do you have any thoughts on that? TORIGOE: I think that will be appropriate. EXHIBIT D 2 GRAHAM: Okay. Is it clear whether we are going to hear form both of the parties here today or whether only for this specific question requested by Commissioner Watanabe? WATANABE: I’m not suggesting that we reopen the hearing. Just to get clarification because towards the ending of that, we did have considerable discussion during that meeting as to whether he had authority or not. He was attempting to get in contact with his client, but was unable to on that particular day. So I thought this might be a good opportunity to clear that up. GRAHAM: Sure. And my question was only in the sense that if we are going to have both of the parties come forward to speak at all, I can kind of include it within that. But if in fact we are not, we’ll just call up Mr. Krueger specifically for that one issue. TORIGOE: Mr. Chair? GRAHAM: Mr. Torigoe? TORIGOE: I think basically the hearing is closed, and I think, you know, basically you’ve heard all the evidence and arguments that you had intended to hear. But to just clear up this one little procedural thing, if you want to ask Mr. Krueger, it will be appropriate. And you know, if you are going to call one, then you ought to allow for the other one to come, if it’s limited to that particular issue. GRAHAM: Okay, thank you. And thank you, Commissioner Watanabe. So Mr. Krueger, if you would come forward, and we’ll just pose this one specific question to you. And Mr. Matsunaga (sic), if you also had any comment on this one, you could come forward. All right. KRUEGER: Sure. SIRACUSA: Swear him in. GRAHAM: Hold on a second. Commissioner Siracusa? SIRACUSA: You have to swear him in, yeah? GRAHAM: I was planning to. Good. Okay -. KRUEGER: Do you want Mr. Matsukawa to come forward? GRAHAM: No, he doesn’t need to come forward -. KRUEGER: Okay. GRAHAM: Unless he chose to. Okay. Mr. Krueger, do you swear or affirm to tell the truth on this matter today before the Planning Commission? KRUEGER: I do. EXHIBIT D 3 GRAHAM: Thank you. And give your name and address, please, and if you could respond to Commissioner Watanabe’s query. KRUEGER: I will do. My name is Dennis Krueger. My address is 75-5722 Kuakini Highway, Suite 208, Kailua-Kona. And I did speak to my client with regard to the waiver issue; I did not get his authority to waive the timeframe, but he did authorize me to be here today and participate in today’s hearing. So I do apologize to the Commission for my inability to reach him last time. I thought he had a cell phone, and found out afterwards he does not have a cell phone. So I tried to reach him through my office and home and so forth. But I am here today, and I am participating. WATANABE: He -. GRAHAM: Okay. Mr. Torigoe? TORIGOE: I think basically at this point, the rule we were talking about is Rule 4-24, and it says that the Commission shall render its decision within a period of not more than ninety days after the close of the hearing, unless a longer period of time is agreed upon by all parties. It’s one of those rules that doesn’t tell you that if you, you know, run off beyond that period, it’s deemed denied or anything like that. So I would not advise that you consider at this point that oh, we can’t do anything or it’s automatically denied; I would say that you still today should go ahead and try to make a decision, you know, with five votes one way or the other. GRAHAM: Thank you, Mr. Torigoe. WATANABE: Mr. -? GRAHAM: Commissioner Watanabe? WATANABE: Yeah, well, I’m prepared to make a motion, if that’s okay. GRAHAM: Okay, let -. SIRACUSA: I had a question of -. GRAHAM: Commissioner Siracusa, go ahead -. SIRACUSA: For Mr. Torigoe. GRAHAM: You had a question for whom? SIRACUSA: For Mr. Torigoe. GRAHAM: Okay. KRUEGER: Excuse me, Mr. Chairman, do you need me anymore? SIRACUSA: I -. EXHIBIT D 4 GRAHAM: I don’t believe so. Thank you, Mr. Krueger. SIRACUSA: I understand that there is a case pending in court, and I’m wondering if we decide one way and the Court decides another way, if things would cancel each other out; or if we would need, if we passed the application, if we would need to put in special, something, special wording saying that the passage of the application was conditional upon the outcome of the Court case or something like that. GRAHAM: Mr. Torigoe, could you speak to that? TORIGOE: I would not say that you would have to say it that way. If you wanted to put in something, if you were to pass or if you were to approve the application and you wanted to recognize that there is a Circuit Court case pending, you could say something, well, you could say something to the effect that as a condition that the grant of the permit is subject to any contrary ruling of the Third Circuit Court, or something to that effect, which, you know, would be the case anyway. In any case whether you said or not, you know, if the Circuit Court comes back and says, you know, this proposed or the use as a residence or as a bed and breakfast is barred as a matter of law by the language of the original deed from Mikala Kaiawe, if the Court came and said that, then whatever you put or don’t put in your permit, basically, you know, it would in effect nullify the permit. But if you wanted to include something that basically said that it’s subject to any contrary rulings of the Circuit Court, I think you could put that in. GRAHAM: Could we -? SIRACUSA: I, just a follow-up -. GRAHAM: Go ahead again. SIRACUSA: I also had a question about something that was in the confidential executive session minutes. So can I ask that in a way that we don’t have to go into executive session, just maybe by referring to the page number and the paragraph or something? GRAHAM: I wouldn’t know, Ms. Siracusa. TORIGOE: That will be, I think that will be difficult to do because the answer would probably involve the substance of it. GRAHAM: Okay, maybe we can go ahead, and if you’ve come to a point where you feel we need an executive session to clarify something, you can express why and maybe we can do that. SIRACUSA: Okay. GRAHAM: Thank you. Okay, Commissioner Watanabe, if you would like to go ahead with your motion? EXHIBIT D 5 WATANABE: Okay. I move to approve the Special Permit application for Daniel Ibbetson, SPP No. 05-000015, based on the Planning Director’s recommendation and proposed Findings of Fact, Conclusions of Law, Decision and Order, and subject to the original proposed conditions and also inclusive of a new condition: The applicant shall provide on its website and other promotional materials notice of the presence of native Hawaiian graves and the need to be respectful of them and of those who visit them. GRAHAM: Thank you, Commissioner Watanabe. I think that’s clear. Do we have a second to the motion? DARROW: Commissioner Graham? GRAHAM: Yes, Mr. Darrow? DARROW: If I could, before there is a second, at our previous meeting where we had a similar motion, there were also some additions: One was to be able to make a correction on page 4, and that was to add a “y” to the “warranty deed” – at this time it says “warrant deed” -. WATANABE: Yeah, I’ll, friendly amendment. DARROW: And then there was also on page 6, I believe that’s No. 22, on second line it says “were no objections raised – and then inclusion of the word ‘by’ – any ---“, so the word would be “by” that would be added. And if I’m not mistaken, if Mr. Torigoe could, there was, we were to add some wording in the last Findings of Fact as well as to add a conclusion of law. Do you recall, and possibly, I think that was it, those four changes. The inclusions would be, if it is to grant – we should? Okay. This conclusion of law would be added: “Based on the foregoing findings and conclusions, the proposed use is an unusual and reasonable use under HRS 205.6.” And added, the last Findings of Fact would state: “The Planning Commission has considered all the proposed findings of facts offered by each party. The intent of all proposed findings consistent with the findings herein are incorporated herein with the specific language herein to govern. All proposed findings inconsistent with or contrary to the findings herein are rejected.” WATANABE: I -. DARROW: Thank you. WATANABE: It’s a lengthy friendly amendment. But I accept. GRAHAM: Commissioner Watanabe, I also remembered, maybe I was not here for the second, for the last meeting, but the one before that, we did have a motion on the Planning Director’s submission, proposed Findings. And I remember I personally objected on page 12 on the Conclusions of Law, No. 9, which I thought was just extraneous, unnecessary; and also I didn’t agree with it -. WATANABE: Well, I -. EXHIBIT D 6 GRAHAM: So I asked it be removed at that time; it read, “The proposed bed and breakfast use will have no greater impact on the Property than the underlying single family dwelling which currently occupies the Property.” WATANABE: It’s, I’m agreeable to removing that also. GRAHAM: Thank you. DARROW: Okay, great, thank you. GRAHAM And did we have a second? WATANABE: Not yet, I don’t believe. GRAHAM: Okay, do we have a second? WOODWARD: Second. GRAHAM: Seconded by Commissioner Woodward. SIRACUSA: Discussion. GRAHAM: Commissioner Siracusa? SIRACUSA: Yes. There was also mentioned of several other conditions to mitigate the impacts. And I was wondering if you would accept any of those as a friendly amendment; a visual buffer between the pool area and the nearby gravesite was one of them. WATANABE: I, technically I have no objection to that; however, if memory serves me correctly, there isn’t much room between the pool and the gravesite now, which was one of the objections by Mr. Kaiawe. I don’t think there is room there. SIRACUSA: And then another one was requiring curbing or other physical barrier that would protect the graves from the driveway traffic. GRAHAM: That’s speaking to the “A” graves, I imagine, the section “A” above, you mean, or -? WATANABE: Yeah, that would be the gravesites at the driveway, the entry, right? And I have no -. SIRACUSA: Yes, “A.” WATANABE: I have no objection to adding that. In fact, there – I was trying to keep my motion kind of short, but – okay, it could be worded: “Applicant shall provide a concrete curb or other physical protective barrier to demarcate and protect the native Hawaiian graves adjacent to any driveway used by guests, subject to reasonable approval by the Planning Director.” How’s that? Is that satisfactory? EXHIBIT D 7 SIRACUSA: Yes, that would be satisfactory. WATANABE: And I accept it as a friendly amendment. GRAHAM: Commissioner Woodward, is that acceptable? WOODWARD: No problem with that. GRAHAM: Okay, thank you. All right, we -. WATANABE: You got that, Jeff? DARROW: Right, thank you. GRAHAM: So I think we have the complete motion before us. So now let’s do discussion. If any of the Commissioners – I know we’ve been a fairly evenly split Commission on this, and I don’t know how strongly the different Commissioners hold where they are with their votes – but if anybody would like to elaborate a little bit. I have some thoughts I might put out at the appropriate time. But maybe, Commissioner Domingo, you can start? DOMINGO: Thank you, Mr. Chairman. I, you know, I certainly disagree with the intent of the motion, and of course the intent of the use of the property. If it so be that, be for just one residential parcel, one residential unit, I can accept that. But the fact that we’re branching out into something that’s beyond that of, for residential use, but it’s something that is used as a, that would fall probably in a context of a vacation rental or a short-stay arrangement, I certainly don’t feel that the proposed use and the gravesites being there is not at all compatible. I cannot accept that. I know probably it’s a moral standpoint of view or a whatever reason there may be to justify it being there. I certainly would not feel proper to go within or near a cemetery, and build a structure that would certainly take away the ambience of a place which I consider to be sacred where somebody in a family has been buried there, you know. We should put ourselves in that particular situation, I think, if you or someone in your family is buried in a plot where you’re proposing to build a bed and breakfast. Now if this was not, if this was an unknown fact, if there was no cemetery, no knowledge of there being a cemetery or whatever, and if in the process of excavating the place and they find a number of graves, you know, they find bones and everything, what would happen there today? They’d put an immediate stop to that, and they’ll call the, probably, the Hawaiian Burial Council to come and investigate, and they will cease and, cause a cease and desist order at that point, and give a strict study and research of the grave, you know. I do not take this lightly, even if it would mean just a handful of graves. But the fact that even those people who had their ancestors buried there were denied, I think they were denied entry, or they were there and they were asked to leave. So you know, with that kind of action, how much leverage or, not leverage, but how much of a chance or an opportunity would those family members have to go visit their loved ones at their gravesite, you know. And it’s certainly again diminishing the sacredness of a place where someone is buried. And I certainly would speak against the motion. GRAHAM: Thank you, Commissioner Domingo. Commissioner Woodward? EXHIBIT D 8 WOODWARD: Yes. I made my feelings clear about this in the past, but let me just reiterate. I don’t think, from a legal standpoint, we have any reason to deny this application. In fact, if you read Judge Strance’s decision from the Third Circuit Court – I’ll just read parts of it – “The undisputed facts are that Mr. Ibbetson applied for and was granted building permits for the home and swimming pool on the subject property consistent with the requirements of the law. Thus, the ‘essential character’ of the subject property was established prior to Mr. Ibbetson’s application for a Special Permit.” Further, she says, “without any regulation, Mr. Ibbetson could put the property to the following uses: crop production, fertilizer yards utilizing only manure and soil, for commercial uses, group living facilities, livestock production, telecommunication antennas ---. --- it is clear from these Findings of Fact that the presence of the burial sites on the subject property is what drove the Planning Commission’s determination of the ‘essential character of the land and the present use of the property.’ This determination appears to have been made without consideration of the current residential nature of the property derived from Mr. Ibbetson’s construction of his home and associated structures on the property. --- Mr. Ibbetson’s deed does not contain a use restriction. It reserves rights of third persons to enter the property to visit certain identified gravesites on the property. There is an absence of evidence of any intent to maintain the character of the property as a cemetery. Thus, the Planning Commission’s reliance on an undetermined legal issue – a characterization of the property as ‘cemetery use’ after conveyance to Mr. Ibbetson – and its disregard of the current residential character and use of the property were all clearly erroneous.” So regardless of your feelings, I think from a standpoint of the law, we don’t have a foot to stand on in denying this application. And I’ve made that point in the past. GRAHAM: Thank you, Commissioner Woodward. Any other Commissioners care to speak to this? Yes, Commissioner Siracusa? SIRACUSA: Well, one of the sentences you quoted was “There is an absence of evidence of any intent to maintain the character of the property as a cemetery.” And I think that is an erroneous statement in it of itself because the intent was originally, when the land was conveyed, then it went to the church; the intent was there when the church conveyed it to Mr. Ibbetson with the understanding that there were burials on the property and that he had to allow the descendants to visit those graves. To me that is evidence of an intent to maintain the character of the property as a cemetery. Furthermore, every religion that I know about on this planet considers burial locales, cemeteries as sacred sites. And we have a tradition in the Judaic Christian tradition that commercialism and sacred sites do not mix. I mean the famous story about Jesus chasing the money lenders out of the temple is a perfect example of that. I don’t think that it is an appropriate combination. For residential, yes. But I do not believe that mixing commercial with a cemetery use is appropriate. And everything else that Commissioner Domingo said, I heartily concur. GRAHAM: Thank you, Commissioner Siracusa. Any other Commissioner has anything? ALAMEDA: Mr. Chair? GRAHAM: Commissioner Alameda? EXHIBIT D 9 ALAMEDA: You know, we were joking at lunch; kind of like a question I asked was which agenda item has been in our file the longest. And this agenda item has come up as at least the top two. So as much as everybody else on the Commission is willing to, you know, wanting to probably disregard this file finally -. I don’t know, you know, when it came out, I don’t know, maybe about three years ago, I was – or two years ago, maybe – I was very uncomfortable with the application simply because of the, you know, what Commissioner Domingo mentioned and what Commissioner Siracusa has mentioned. And it is true that the letter of the law, we could argue the letter of the law. But this is I think beyond the letter of the law; this is kind of getting into the spirit and, you know, kind of like the moral issue of it all. And this is where Commissioners’ diversity plays a part, in all of this. So you know, I mean, and they are still pending whether or not this is a proper use of the property, this bed and breakfast. So for me, I’m still uncomfortable, and because of that, I’m still leaning to vote against the motion. GRAHAM: Thank you, Commissioner Alameda. I might just say, from my own personal perspective, I started off with the same kind of feelings I think that we’ve heard from, certainly from Commissioner Siracusa and Commissioner Alameda about, and as Commissioner Domingo said, the sort of sacredness of the cemetery sites and all. And as Commissioner Siracusa says about, maybe a commercial use doesn’t really mix too well with that. And so through the whole initial session where we actually conducted the contested case hearing and had all the witnesses and all, I kind of had in mind that I was going to hear how commercial uses of a bed and breakfast was really going to diminish the sacredness of the site. And I kept being frustrated through the hearing because I never heard anybody really address that directly. There were all kinds of other issues being addressed.And then when I thought the past history of how Mr. Ibbetson had handled the site, it seemed like everyone had always had proper access whenever they wanted it. There had been no disregard or, you know, rubbish or anything like that around the cemetery. He had even done some more maintenance of the grounds near them to sort of keep them sort of accessible and, you know, reasonably attractive looking. So I just found myself wanting through the whole process of finding any reason why I thought specifically the bed and breakfast would be harmful to the exercise of the visitation rights by those with connections to those in the cemetery. And we did have one testifier come speak, a woman who spoke very well, and she again felt it was a bit out of character, you know, to have that kind of commercial use, as Commissioner Siracusa says. But to me, there was never any flesh on that argument; there was nobody saying, well, this is going to happen or that’s going to happen and that’s why it’s not good. And I could envision in my mind, well, maybe there would be some drunken bed-and-b type hanging around the pool at night, making a lot of noise when somebody wants to come visit the grave. But it’s only because I could conjure that up as a remote possibility; it’s never like I really saw any evidence to that fact nor have any reason to believe that would be what happens. So it’s almost like in my case, I have supported the application just because my initial sense that I kind of didn’t like it, never got anything hung on it to confirm it; and so I just walk away with the feeling that even thought the basic idea doesn’t sound very good to me, I don’t see that it’s going to be harmful to the use of the cemetery as a cemetery. And being as that’s the case, I feel like I need to support it. Okay. Well, should we move onto a vote now since we’ve all had a say? Jeff, you want to carry on? DARROW: Thank you, Mr. Chairman. If you can bear with me for a moment, the motion before us is to adopt the Planning Director’s, or the Planning Department’s proposed EXHIBIT D 10 Findings of Fact, Conclusions of Law, Decision and Order, with several changes that would be to page 4, Finding of Fact No. 6, we will be adding in the letter “y” after “warrant;” on page 6, Finding of Fact No. 22, we will be adding the word “by” on the second line; we will be adding the last finding of fact as read earlier; we will be, on page 12, we will be omitting Conclusion of Law No. 9; and we will be adding a conclusion of law as read earlier; and we will also be adding two new conditions as dictated by Commissioner Watanabe. With that, I will take the roll. Commissioner Watanabe? WATANABE: Aye. DARROW: Commissioner Woodward? WOODWARD: Aye. DARROW: Commissioner Alameda? ALAMEDA: No. DARROW: Commissioner Domingo? DOMINGO: No. DARROW: Commissioner Ogata? OGATA: Aye. DARROW: Commissioner Rho? RHO: Aye. DARROW: Commissioner Siracusa? SIRACUSA: No. DARROW: And Mr. Chairman. GRAHAM: Aye. DARROW: The motion passes, five to three. GRAHAM: Thank you all. So we will issue a written notification of our decision here today. KRUEGER: Chair, may I ask one quick question for verification? GRAHAM: It’s certainly all right with me. Is that all right with the Commissioners, if Mr. Krueger asks a question? Sure. Come forward, please. EXHIBIT D 11 KRUEGER: Thank you. GRAHAM: And use the microphone. KRUEGER: Thank you, I just, for clarification purposes, on the motion for the additional conditions that were added, Jeff mentioned two additional conditions that were approved by Commissioner Watanabe. And I just wanted to be clear what those two other conditions were. WATANABE: Okay. The first one had to -. GRAHAM: Commissioner Watanabe, go ahead. WATANABE: Oh, I’m sorry. The first one had to, was stated this way: Applicant shall provide on its website and other promotional materials notice of the presence of native Hawaiian graves and the need to be respectful of them and of those who visit them. And you’ll get this in writing, too, by the way. And then the second one had to do with: Applicant shall provide a concrete curb or other physical protective barriers to demarcate and protect the native Hawaiian graves adjacent to any driveway use by guests subject to reasonable approval by the Planning Director. KRUEGER: Thank you. GRAHAM: All right. The discussion ended at 2:36 p.m. Respectfully submitted, Noriko Sauer West Hawaii Secretary EXHIBIT D 12