HomeMy WebLinkAbout2010-12-15 TFOULKexhibitD
LEEWARD PLANNING COMMISSION
COUNTY OF HAWAI‘I
HEARING TRANSCRIPT
DECEMBER 15, 2010
WILLIAM C. FOULK (SMA 10-41)
An advertised contested case hearing on the application of
was called to order at 1:28 p.m. in the King Kamehameha's Kona Beach Hotel, Ballroom I, 75-5660
Palani Road, Kailua-Kona, Hawai‘i, with Chairman Frederic Housel presiding.
COMMISSIONERS PRESENT: Frederic Housel, Brandi Beaudet, Lani Bowman, Geraldine
Giffin, Thomas Hickcox, Wayne Iokepa and Richard Nelson
STAFF PRESENT: Brandon Gonzalez (Deputy Corporation Counsel), Daryn Arai (Planning
Program Manager) and Jeff Darrow (Staff Planner)
PARTIES PRESENT: William Foulk (Applicant), Thomas Yeh (Applica
Olson and John Olson (Attorneys for Martin H. Crumrine Family Trust, Intervenor), Ali
Ghalamfarsa (Intervenor), BJ Leithead Todd (Planning Director), and Amy Self (Counsel to the
Planning Director)
And approximately 60 people from the public in attendance.
APPLICANT: WILLIAM C. FOULK (SMA 10-41)
Contested Case Hearing on the application for a Special Management Area Use Permit to allow the
construction of a 16-unit, 4-story condominium building and related improvements. The property is
located on the northwest (makai) side of Ali‘i aloa Bay,
rd
, North Kona, Hawai‘i, TMK: 7-7-4:25.
HOUSEL: Our next item is the applicant is William C. Foulk. This is SMA Permit 10-41,
contested case hearing on the application for a Special Management Area Use Permit to allow the
construction of a 16-unit, four-story condominium building and related improvements. Mr. Darrow
is going to give a presentation and history of this project for our information. Thank you, Mr.
Darrow.
DARROW: Thank you, Mr. Chairman. We will just take a minute and just revisit the history of the
last several meetings. On June 18, 2010, we had our first hearing on this matter –Applicant:
William Foulk, SMA application, SMA 10-41. During that hearing, the Commission granted
standing to Ali Ghalamfarsa, as well as to the Crumrine Family Trust. The Commission also voted
to have a site inspection, which was conducted after that time. They also set the deadlines for
submitting statement of issues, witness and exhibit lists, and objectionsto witness and exhibits lists.
On August 27, 2010, we had our second hearing on the matter. This was scheduled for the
contested case hearing. Prior to the beginning of that hearing, the Commission conducted a site
inspection of the property. There was a letter that was received, dated August 26, 2010, from the
Department of Land and Natural Resources, State Historic Preservation Division. As a result of
that, the applicant had requested a continuance to be able to comply with some of the requests
within that letter. On December 1, 2010, Attorney Olson submitted a request for a continuance to
the Planning Commission, and that should be with you folks at this time. Additionally, on
December 7, 2010, the Planning Commission received a contested case hearing petition for Kanuha
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‘Ohana, requesting to intervene within this matter. Since our last hearing, there has been multiple,
quite a number of submittals to the Planning Commission, including, as I mentioned, statement of
issues, witness and exhibit lists and objections to these lists, as well as pre-hearing statements. We
are also getting letters from the general public, as well as other letters such as comment letters from
agencies. With that, I conclude the presentation. If you have any questions?
HOUSEL: Any questions, Commissioners? Thank you, Jeff. I’d like to make an announcement
and kind of let you know what the agenda is going to look like, you know, as we proceed. We do
want to take public testimony today; so anyone who would like to testify – we’ve got to restrict
each testimony to three minutes, though – please sign up, so that we know that you want to testify,
and that you have an opportunity to give your opinion. Okay, we do have a few people who would
like to sign up. So anyone else who would like to sign up, please do. We will take the testimony
very shortly. We do have one thing that we would like to address before we start taking the public
testimony, and in that I’d like to call the parties to the table, so that we can discuss that matter. So
we can get this out of the way, could you each raise your right hand? And I’d like to ask you to
respond, if you would. Do you swear to tell the truth on this item before the Planning Commission
today?
PARTIES: I do.
HOUSEL: All affirmative, thank you -.
PUBLIC: Can they introduce themselves whom they represent?
HOUSEL: Not at this time. We will do that, right. (The Chair had a quick consultation with Mr.
Gonzalez.) Okay, why don’t we, I guess, start and, if you would, introduce yourselves and tell us
your capacity here. Thank you.
SELF: Amy Self, Deputy Corporations Counsel, representing the Planning Director, Bobby Jean
Leithead Todd who is to my immediate right.
YEH: Good afternoon, Mr. Chairman. Thomas Yeh representing the applicant, Cory Foulk, who is
sitting to my left.
GHALAMFARSA: Good afternoon. I’m Ali Ghalamfarsa. I’m a neighbor living at 77-6306 Ali‘i
Drive, representing myself.
P. OLSON: Good afternoon, Commissioners and Mr. Chairman. Good afternoon, Parties -.
HOUSEL: Please use the mike, so we get -.
P. OLSON: Good afternoon, Parties, Members of the public, and the Commission, Mr. Chair.
Peter Olson and John Olson for the Crumrine Family Trust, an adjacent property owner to the
proposed development, as well as the petitioner, Kanuha ‘Ohana. Jerome Kanuha is in the members
of the audience here, and I know numerous other members of the Kanuha ‘Ohana are present as
well.
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HOUSEL: Thank you. We have one item that we want to take care of in preparation. We have a
second day of this hearing scheduled for tomorrow, and so to make things go as expeditiously as
possible, I’d like our corporation counsel to explain what we’d like to do at this time.
GONZALEZ: Thank you, Mr. Chair. According to the rules, public testimony on subsequent days
is to be taken prior to the commencement of subsequent hearing days, meaning at the beginning.
The rules can be modified by agreement of the parties. We are not in any way trying to limit the
public’s right to testify and give testimony; what we are trying to obtain is flexibility in the
scheduling, so that we can accommodate witnesses that may be flying in from out of town or even
the parties’ schedules, so that the Commission can start business early and start taking evidence on
subsequent days of hearings. And the public will still be given an opportunity to testify on the
matter, but we are just trying to see if we could do that after on subsequent days. Today you guys
will be giving public testimony right after we answer this question; but for subsequent days we want
the flexibility to be able to take your public testimony at the conclusion of evidence, to give us
flexibility in, you know, juggling everybody’s schedules – the parties’ and the public’s. So I guess
at this time, if the attorneys for the parties would like to put their positions on the record regarding
this request.
P. OLSON: Mr. Chair, we are amenable to doing that tomorrow and having public testimony be
taken after the cases presented; however, we do have a concern. You know, while we do oppose
this application, and there is public opposition which is in addition to our, the Crumrine’s
opposition, as well as Petitioner Kanuha’s opposition to this. And there are separate community
organizing going on and they put ads in the paper; they relied upon the publication and they are told
to come in the morning, and a lot of them rely on, you know, the typical rules as far as testifying
before the matter. And we had outside before – I don’t know whether the Commission members
saw– we had maybe 60 or 70 people outside, and now the numbers have dwindled because they got
continued, and that’s just our concern. If for some reason the hearing is continued from tomorrow,
that the publication, if we can state that, you know, this is when public testimony is going to take
place, you know, after the hearing at a certain time, so people can rely upon that. So that’s our
concern – just the public’s input being taken into consideration as well. But that’s said, we are
amenable to taking the testimony afterwards.
HOUSEL: So you are in agreement with the -?
P. OLSON: Yes.
HOUSEL: Okay.
YEH: Yes, Mr. Chairman, we are in agreement also. And I think just as long as we have the right
to, you know, make comment or argument after the close of all the public testimony and evidence
that comes in, I’m fine with that. Thank you.
SELF: Yes, the Planning Director is in agreement as well. Thank you.
HOUSEL: Okay, I guess, let the record show that we have an agreement to -.
GHALAMFARSA: I’m also in agreement, Mr. Chair.
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HOUSEL: Okay, sorry, Mr. Ghalamfarsa. Okay. Thank you for your agreement there. And we’ll
proceed. Thanks very much. We have a total right now of 20 people signed up to testify, and I
have, normally we would take these in the order of people signed up; I have a request from one
person that they have to catch a plane shortly after 2:00. So would anyone be opposed to taking this
one ahead of the schedule? Okay, so if no one is opposed to it, we’ll call this person, so that they
can catch their plane when they have to. Could this person come forward, please?
GONZALEZ: Ku‘umeaaloha Gomes?
GOMES: Mahalao for allowing that and -.
HOUSEL: Okay, could I swear you in, please? Would you raise your right hand? Using the
microphone, do you swear to tell the truth before the Planning Commission today on this matter?
GOMES: I do.
HOUSEL: Thank you. Could you state your name and address, please?
GOMES: My name is Ku‘umeaaloha Gomes and my address is 1967 Naio Street, Honolulu 96817.
HOUSEL: If you would like to provide your comments.
GOMES: Okay. Mahalo, everyone, for allowing me to be here. And mahalo, too, for making the
space available for people to be able to share. I oppose the development in this area and there are
three reasons why. So,first is that it’s really necessary to understand the historical significance of
through it. The historical significance of
one of the most powerful women in Hawaiian history, and this complex is symbolic of that place of
women. Today, if you go into those areas, you will see the remnants of, you know, different kinds
chiefs’ bones were washed before they were buried, and it’s a pond. So this place is just filled with
so much historical significance that it is important, No. 2, to preserve it for our young people. I’m
from O‘ahu but I am a Kanuha – what is that, two minutes – I’m a Kanuha, my mother is a Kanuha.
I’m from O‘ahu, and for those children growing up on O‘ahu, many times they take excursions to
where? To Hawai‘i Island. For why? To see things here that no longer exist on O‘ahu. It’s really
important that we preserve those places so that our children can continue to learn, to feel, to touch,
to smell, that place that is theirs. We erase all of that, we erase Hawai‘i and their roots. Our O‘ahu
children have to, in their geology classes, they fly to Hawai‘i Island to learn about volcanoes. They
can’t do that anywhere else – it’s here. The same with the existing heiau. The same with all of
these historical places. Let’s preserve them. And the third thing is that the preservation of these
sites, especially the site like this, preserves the spirit of our people, the integrity of our people and
the lives of our people. And I ask you to really reconsider that kind of development. Development,
yes, means progress, but in other ways, too, it serves to destroy and invalidate our history. And we
don’t want to do that. I thank you very much.
HOUSEL: Thank you for your testimony. I’d like to call the next, it looks like we have five
microphones, so we call five people at a time. I need some help with the names – canyou read
that?
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GONZALEZ: This is one of those 52-letter -. Kupuna Reeves? Hannah? Kupuna Hannah Reeves,
Kalani Nakoa, Diane Ellis, Douglas Drake and Janet Topor-Bixler – sorry if I mutilated that.
HOUSEL: Topor-Bixler, I hope we got it right there.
PUBLIC: Kalani Nakoa had to leave.
HOUSEL: Okay. So we’ll –what’s the next one there?
GONZALEZ: Cheryl Kornberg?
HOUSEL: Here she is. Well, I guess we’ll proceed. Could you please pick up a microphone?
Microphone, yeah. And raise your right hand. Do you swear to tell the truth now before the
Planning Commission on this matter today?
TESTIFIERS: Yes, I do.
HOUSEL: Thank you. Okay, I guess we’ll start with you on the left. Would you state your name
and address, please?
TOPOR-BIXLER: Janet Topor-Bixler, 77-6452 Ali‘i Drive.
HOUSEL: Okay. Would you like to present?
TOPOR-BIXLER: Yes. I do agree with the significance, the historical significance and
maintaining it, and then maintaining the integrity of the entire bay. There are not many areas along
Ali‘i Drive where people can go, where the public can go. There are very few areas that have not
been touched. And this is one of the prime ones. And to take it and to put up a building -. 77-6452
Ali‘i Drive is also known as Magic Sands, Kona Magic Sands, and at high tide, high surf – we are
set back 37 feet –the water comes over and the water comes under the building, and I have great
reserves for whether they are going to be planning subterranean parking and such. I also have
problem with 16 condos, meaning a minimum of 16 vehicles exiting out onto Ali‘i Drive during
times of emergency. You know, we saw with Katrina when they had large highways to exit people
that there was no place for them to go. And I’m in the middle of two exit routes. And adding more
vehicles that will exit onto it -. If they were people that were from mauka that could exit mauka and
never, ever come onto Ali‘i Drive unless they come some other route, it would be different. I want
to keep the place the way it is.I want to save it for the children. I don’t want it developed. I don’t
want it to look, as the woman said, like O‘ahu. I want it to be Hawai‘i. Thank you very much for
your time.
HOUSEL: Thank you. Please state your name and address, please.
REEVES: I’m Kupuna Hannah Wahinemaikai o Kaahumanu Keliiulananiole o Kalama (Kane)
Reeves, in behalf of my ‘ohana, which is the Kanuha. They are the direct descendants of
. I just want to explain to all of you this is, from the
mountain to the sea, and 300 miles out and right around the island, on every island, we are
connected. I want to tell you that this is the most sacred place in Kona. This is the very, very
strong place that has eight heiaus; on the top and on the bottom, there are several of them. It’s been
many years that we were, been put away from our ancestors’ land. We are the direct living
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descendants of that area and right around the island because of our connection and our genealogy
that take us back thousands of years way before white men came – sorry but I have to say what I’ve
got to say. I am pure Hawaiian. I’m a hundred percent Hawaiian. And my mom and dad, my mom
and dad, uncle and niece, they are full-blooded and take me back for generations on Kamehameha
and all the islands that connected; that mean Kaua‘i, Ni‘ihau, Lanai, Maui, O‘ahu and I can go on
and on and on. I just left Kaua‘i. And to let the people know that we are still living today – we
come from the kahuna line and the royalty line, Holoa‘e, Kaoamahi (phonetic), and on and on and
on, covering all islands with Kamehameha I, every moku you see, every ahupua‘a, they are all
family as one. I want to tell you that this is the most sacred, and I’m going to say it, because I know
in my heart the truth is that we are still living and we never die. I want you folks to know that, as a
board, not very much people know about us, but we are still living. There are thousands of us still
living – 15,000 on one line. And everybody can say what they want to say – they want to do this,
they want to do that – they cannot, because our sacred people lived there and they were buried there
way before white men came. You guys can call a cop, then lock me up, whatever you guys like to
do, but I am serious. We are still living. No one have the authority, not even the United States, not
even the military, not even the missionaries, not even, I can go on and on and on. My people need
to go home and take care of the land. Open up and take care of everything. Now is the time for us
– oh, excuse me, you are stopping me. Sorry. That’s what I feel in my heart. And I will be in the
community to let everybody know we are still living today.
HOUSEL: Thank you, thank you.
REEVES: And no condo.
HOUSEL: I’d like to ask everyone, if you could refrain from applauding each time because it takes
time out of our schedule here and it prolongs things, so if you could please refrain from applauding.
Please go ahead. Would you state your name and address?
KORNBERG: My name is Cheryl Kornberg, and I’m at P. O. Box 1433 Kailua-Kona. And that
was such a touching thing; I just can’t imagine why anybody can not clap. I do agree, you know,
we do need to respect the Hawaiians and what is here and what is sacred to them. But I’m not even
sure why we are here. If I understand the law correctly, when, you know, there is a discrepancy
about 20 feet or 40 feet from the shoreline to develop on this small piece of property basically this
big development, when you have, when you consolidate and then you resubdivide, you lose your
grandfather rights, I believe, if I understand it correctly; so I’m just not sure why we are here,
because they did this before, like I said, they consolidated, subdivided, and you lose your
grandfather. So we are looking to you to uphold the law. And you’ve been helping us out, and I
really appreciate that you listen to us, our testimony, and that you always take us into consideration.
And we reserve, well, not reserve, but we really rely on you to preserve this. And I don’t have a lot
to say more about that, except that you are going to hear it all from every other testimony. But
thank you for your help in the past. And we just really trust you to do the very best thing and
preserve this for the kids, and keep the Big Island the way it is. This is why people come here. The
tourists want to see the Big Island the way it is, and tokeep them on the island all that are here.
Thank you for listening to me.
HOUSEL: Thank you for your testimony. I’d like to call the next five people who would like to
testify: Diane Corcoran, Ursula Kavaliauskas, Stanley Huihui, Kaleo Kualii and Wayne Nelson. Do
we have -? I guess not everyone is here. Is Wayne Nelson here? I guess not. Please take a
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microphone and hold it up, and raise your right hand, please. Do you swear to tell the truth on this
matter now before the Planning Commission today?
TESTIFIERS: I do.
HOUSEL: Thank you. I guess we’ll start with -.
KUALII: Ladies first.
HOUSEL: Okay, start with the ladies. Go ahead.
CORCORAN: Thank you. Good afternoon. My name is Diane. I live here in Kona. And I’ve
looked at the plan for this new building, and it’s an eyesore; it will really stand out against all those
blues and greens and the dark background – this big one white thing sticking up like a digit saying
what to who. It’s not attractive. I think what we have that to offer the world here in Hawai‘i is
beauty, what we can teach the world is respect for the land. I think it’s becoming very, very
important that on a global and local level, we respect the land itself. I hate to see another reef
desecrated. How can they build that close to the ocean and not ruin the reef? No one else has been
able to. Do we value the reef? Do we value the land? Or do we value only the profit this one
person is going to make and then take the damn money to California anyway. That’s all I have to
say. Thank you for listening. Thank you.
KAVALIAUSKAS: Ursula Kavaliauskas, 78-
this Commission to say no. We need to hold the line at Lyman’s. We don’t need to give these
setbacks, these additional, another 20 feet of setbacks. We don’t need to allow another story. We
don’t need to give special permission to this developer for anything. He has the right to develop,
but according to the rules that are in place right now. Just say no. I don’t think you need to do
anything else. These people have given you plenty of reasons, great reasons. Now, the people that
are here right now are a fraction of the people that were here this morning. The people that can’t be
here now are the ones that had to go back to work. I think out of respect for those people, it would
have been nice to change your agenda this morning at the point in time that this item was noticed. It
is not against the rules to do that. Anyone as a commissioner has the ability to speak up and,
according to Robert’s Rules of Order, request that the Commission change the order of the agenda
to accommodate this crowd. I think that would have been respectful of the people here. And I ask
that in future that you consider respecting us in order to get respect back. Thank you very much.
HOUSEL: Thank you for your testimony.
KUALI‘I: Aloha mai ‘O Kaleo Kuali‘i
ko‘u inoa, ‘ehiku ‘ehiku - ‘eono ‘elima ‘ekolu . Before I get started, I’d like to
touch on several things that came up before. One is the fact that the scheduling for the testimony -.
There’s been a lot of people that are not here and will not be here to speak because of that
scheduling. The fact that we had to -. And I understand at times that that happens. Is there a way
for them to still have the opportunity to speak on behalf of this matter? I guess the question goes to
the Chair, or -?
HOUSEL: We will provide public testimony opportunity tomorrow. The agreement is, just so you
can let people know, that we are going to take evidentiary hearing in the morning and the public
testimony will follow that – I don’t know exact time, though.
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KUALI‘I: Okay, well, thank you very much. I think it was brought up earlier by one of the
attorneys that you should try to -.
HOUSEL: One other thing that corporation counsel just informed me, which I want to tell you, is
that people who can’t be here to testify can submit their testimony in writing to us.
KUALI‘I: Thank you. Thank you very much.
PUBLIC: Is there a deadline?
KUALI‘I: Question from the audience – is there a deadline?
HOUSEL: No, no. As soon as possible would be best.
KUALI‘I: Thank you very much for indulging me.
HOUSEL: And have them submit their testimony to the Planning Department.
KUALI‘I: Okay, thank you. As I said earlier, my name is Kaleo Kuali‘i. And I do live in the
ahupua‘a of Kaumalumalu. Our family comes from here. I
prefer no development at all. Unfortunately, we’ve come to the place where we have to discuss
this. You’ve heard testimony about the close proximity to many cultural significant sites;
the most significant,
that. Not just because of the cultural and historical significance, but also we should look at the fact
that there are two homes existing on the site as well. And I have no problem if they have to develop
those two homes; but to put up 16 units, four stories, environmentally, culturally, I don’t feel that’s
appropriate. And, yes, I’m speaking for myself, but on the card I signed Na ‘Ohana
for there are many families that are connected. Many people in this room today are connected to
this. I see your two minutes. Thank you very much. The adverse effect on the historical site,
putting up a 16-story (sic) unit next to such a beautiful place, not to mention the environmental
impact. And that was brought up, which isvery interesting, because of the fact that we are in the
tsunami area, and when we do have high surf, anything over six feet is coming across the road right
next to this condo. So a lot of times it’ll go over into the pool of one of the existing homes. I’ve
surfed there most of my life when most people wouldn’t go there. I live just up the road from it,
and besides the coastal views that will be blocked by this, there is the historical -. Again, next to
such significant places, we are going to put a condominium. I’m not sure if we need another
condominium. And the process that was stated earlier by several individuals the fact that, you
know, there is no grandfather clause, I believe, was what the person before me has mentioned, that
once you subdivide and consolidate, that it changes. But it’s up to the Planning Commission to
make that determination, is that correct? Whether or not that is okay to do?
HOUSEL: I’m not an expert, so I can’t answer your question, sorry.
KUALI‘I: I see. Well, again, I’d like to say that I prefer no development. The 20-foot setback
should be 40 feet, maybe even more. It’s just something the board can consider. And it is within
your power to give the approval or not. So with that, I believe I’m out of time. But there’s a lot of
people that will come up and say, you know, the same thing. You’re going to hear a lot of, a lot of,
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how much people love this place. As a
take into consideration not allowing the 16 units and the four stories. If you’d like to have them
develop those homes that are already there on the existing footprint, I think that will be less impact
on our environment, less impact on our community, less of an impact on our culture. Mahalo nui
loa, ka Haku. Aloha.
HOUSEL: Thank you for your testimony. I’d like to call our next testifiers: Joy Mills, Sharon
Guillermo, Tom Carey, Karen Anderson and Heidi White. If you could please pick up a
microphone and raise your right hand. Do you swear to tell the truth on this matter now before the
Leeward Planning Commission today?
TESTIFIERS: Yes, I do. I certainly do. Yes.
HOUSEL: Thank you. I guess we’ll start with, on the left, on your right there. Would you give
your name and address, please?
wau ko‘u inoa
stretches across all these islands. My family is deeply rooted in my culture. And my mother has
and the heiau. And
over the last few minutes where you folks have seen me, I’ve been blessed with much more – ke
Akua is so kind. And so many people have joined the force, and I want to thank and mahalo to
every one of you who’ve come out and shown the support. And this is not even a half, not even a
quarter of the people that want to be here today. And I speak on their behalf, because they have
family, they have jobs. And we need to time this by a hundred;so many people wanted to be here
to represent, and it’s -. And I’m sure you heard my . You know, we wanted to be here, and it
was not to be but, you know, we got to bless and share our culture. And I’ve been so, so fortunate.
And one of the knowledge that I’ve gotten through my mom and through many other people, is
poina mai au. Lili‘uokalani, our queen, she was our last monarch that when they came with the
bayonets, those businessmen came, she stopped and she said she signed the paper; but what I’m told
is that the paper was a treaty of war. We are still in war. These lands should not be sold. These
lands are still ours as Hawaiian people, and we have every right. And I have everybody to look at
you in your face, Mr. Cory Foulk, until you know ‘a ‘ole. ‘A ‘ole, do not do this. My people are
strong. And we have already startedheiau
to share with our future with our children and allow places for kupuna to come. My mother is a
kupuna and she has come and she enjoys her ho‘okupu there, and we share and we practice our
culture. And I am so proud to oli there –
(phonetic), mahalo ke Akua – and it comes alive when I oli. When I oli, it comes alive there. And
all I ask is you consider, poina mai au. 1893, our queen was told -. And she could have said one
word and we would have fought – and I say “we” because I know my bloodline would have ended
that day – and we would have fought. And we were told for many years to be ashamed. But now
we are proud and we know – because the time has come, those businessmen, they are here again,
but they are here with the palapala and they are here with the promises – and we know, we know
what those promises hold because we’ve leaned; we have to know that they are not all true and they
don’t always hold. So please, poina mai au, remember my queen. Mahalo.
WHITE: Thank you very much for giving us time to share our thoughts and mana‘o. Thank you,
kupuna, for speaking so bravely. And my name is Heidi White. My address is 76-6129 Plumeria
Road. I really don’t feel worthy after hearing Joy and others. But my story is I sailed here with my
mom and dad, my two handicapped brothers, 40 years ago. After going to school in Samoa and
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growing up in the islands of the South Pacific, I really developed alove for the island people,
Polynesia in particular. And in the last 12 years of living in Kona, I became a Realtor,and I
specialize in oceanfront sales and amprobably in the top ten percent of doing the oceanfront sales in
Kona. So I feel knowledgeable enough to share with you my experience of seeing no demand, no
demand, for the condos built at this location. Weighing the precious archaeological and historic
area, nothing should be built in this area – no further construction of new homes or condominiums.
The archeological is treasured and it remains where it’s been wiped out on the other islands. I just
really urge you to consider what your decision is, and let our keiki, my grandchildren, others’
grandchildren, grow up learning about the history of Hawai‘i that is in this location. You know, the
kupuna shared itwith us today – it’s unbelievable. When I opposed this from day one, there were
four of us here in opposition, and I had no idea of the cultural impact; I just thought it’s going to
destroy the ecological balance of the reef and the beauty of the area. Now I learn about the history
– blows my mind. So I just want to help save it because it’s what I love. It’s why I came here. The
Hawaiian people, their culture, you know, it’s just, I think that’s why most of us are here. And let’s
cherish what we have left. Thank you very much.
HOUSEL: Thank you.
CAREY: Hi, my name is Tom Carey. Address is 77-440 Ho‘omaluhia. I’d just like to say that to
allow this project to be built at Lyman’s would be wrong in so many ways that the kupuna and all
these ladies have pointed out today, that we don’t need it for one thing, and why destroy such a
sacred land to trash it, to trash the land and build that project, which is to be a travesty, especially
with all the empty units we have in this town. To build this project would also take away, or at least
highly impact, one of our only surf spots and wide-open bays in Kona. We need to protect the land
that we have. The land should be preserved forever to show respect to all, the kupuna and the
future, from the past and the future. The impact is just, from this project is just too big, and it will
be disrespectful to everybody in Kona. Thank you.
HOUSEL: Thank you.
ANDERSON: Hi, I’m Karen Anderson. My address is 82-6288 Pu‘uhonua Beach Road. And I
think it’s significant that we find ourselves here today at the King Kamehameha Kona Beach Hotel
where
shows. And we’ve seen how developers over the years marred Hawai‘i’s cultural sites in the name
of profit. Now here we are talking about another sacred site that is, as some say, one of the most
significant in Kona. I oppose this development. And I believe that the setback rule is in place for
reason, and I’m not even sure why we are here discussing making an exception to that rule.
Especially in the case of a site that’s so culturally significant in so many ways, not only to native
Hawaiians but to the surfing community and all of us who live here in Kona, who enjoy the
beautiful view and the landscape of the bay. And where there is a case of enormous public outcry
against a project such as what we find here, the answer should be no. We should not allow this
project to go forward. Do we really need another condominium on Ali‘i Drive? No, we don’t. It’s
not just the blight from the shoreline we are talking about, but also from the mauka areas looking
down, blocking our view, marring our view of this beautiful bay and the shore break. Just because
you can build it doesn’t mean you should. And I submit my testimony in opposition to the project.
HOUSEL: Thank you. A few more testifiers. Could we have a Teresa Nakama, Brandt
Matsushima and Shannon Rudolph, please come to the table. If you could pick up the microphone
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EXHIBIT D
and raise your right hand. Do you swear to tell the truth on this matter now before the Leeward
Planning Commission today?
TESTIFIERS: Yes, I do.
HOUSEL: Thank you. I guess we’ll start this end here. State your name and address, please.
Teresa Nakama at 73-998 Ahulani Street. Mahalo for the opportunity. We all come from the very
nature of our good bible that speaks of the spiritual nature in all of us. I speak of our Hawaiian
within us w. It is much more significant than
Pu‘uhonua, but it has been kept quiet all these years because of its sacredness, just like the top of
Mauna Kea,as sacred it is, we leave no footprint at the top –
surrounding areas. When we visit there and we have a need to be there, we start our meditation
from our home, not from the site. By the time we get to the site, we are ready. We prepare
ourselves prior. We walk the shoreline before we reach the site. We ask for permission because of
its sacredness. The area before the site is where the proposed project is. We meditate as we walk.
We pule as we sit along the shoreline. It is a lifestyle that we live. We were taught from the time
we were keikis. I fish from Upolu Point to Kala‘e in Ali‘i Drive, is my fishing spot. The Ala
Kahakai should be considered also; it should never be traded away like they did to the Kona Surf –
they took away our trail. The trail that is along the Ala Kahakai, we still walk. It is our highway.
Do not take that away from us. Our freshwater spring springs out from those lands from the
shoreline area. When we bathe in the ocean, we know where the springs are; we can go just bathe
in there and it’s along this project site. This project has a detrimental effect to our coastal marine
life. All and whatever seeps into the ground during its construction phase, will end up in our coastal
waters. And why do you suppose this is a special use permit they go through. Why do we have
CZM? This is to protect these areas. You must say no – not giving an exception because. Why do
we have rules that you do not follow? You have every right to say ‘a ‘ole. This project is immense
comparedto its area. It’s a small area. Yeah, you can build athree-story, four-story building in a
small area. But it has a detrimental effect to the marine life, the shoreline, the views. Say ‘a ‘ole.
You have the laws in front of you. There are unfinished construction projects in Waikoloa Village.
Many condos sit empty along Ali‘i Drive. I hear my time. There’s many more that we need to say,
And if there
is a slight inkling, of the very slightest inkling that says ‘a ‘ole, then please say no to the project. If
they can take the project elsewhere and make their trust, more funds for their trust, then take it
Pu‘uhonua. Mahalo.
HOUSEL: Thank you for your testimony.
MATSUSHIMA: Hi, my name is Brandt Matsushima. My address is Ali‘i Drive – simple. For
me, I’m a native and friend on both sides, I would say, because I know Cory as well. My thing is
that development of this condominium would be in a sense, after hearing both sides, is I hear the
pros and cons, but ultimately, this being on the sacred ground, and knowing the Hawaiian history
behind that, if there were to be any development whatsoever that needs to be done on this land, it’s
probably to show the knowledge and the history and the past of it to educate the people, because
I’m sure that if everybody was educated about where they were a little bit more in depth – being 26
years old and a native Hawaiian – you would probably appreciate and not consider developing on
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EXHIBIT D
this piece of property. So I think it’s a lot of lack of education, and maybe the development plan
should be moved to something a little bit more of the educational purpose for the keikis, for the
future. Like I said, I’m not opposed to developing, but for personal use just like a condo that has no
value except a living space for another human being to fly over here from the mainland to just live
here, or just to have to own, uh, we could deal without a little bit more and to preserve the sacred
ground. I’m a native surfer over there, too – alot of people know me and they think I would be
down here as well – but it’s a sacred surf spot, too, because the bonding that you share with the
ocean, the mana, the energy that you get from there, it’s spiritually surreal, and if anybody surfs
over there, they can feel that power of it. During winter swells back in the ’90s, late ’90s, there was
a huge surf that came through and, yeah, it destroyed a lot of stuff, it covered the roads. So
developing on this piece of property, for the history, value, I say no, for the spiritual value, no, and
for the future generation, no. I’d rather have it developed for other reasons, especially throughout
the whole, entire Kona coast, for more educational purposes to show people where they come from
and where they are from. A lot of people lost in touch with that, I believe. It’s like a lot of people
just are out there to get money and just to make a self profit versus educating for the future. So with
that said, I oppose all of this, developing for the wrong reasons.
HOUSEL: Thank you for your testimony.
RUDOLPH: Aloha. My name is Shannon Rudolph. I live in
as far as testifying tomorrow, I know that you’ve already agreed, but this group of people has spent
hundreds and hundreds of dollars for advertising on the radio and the paper and they’ve advertised
tomorrow morning; so if you can change that when people show up and not make them wait until
3:00, you will get a lot of points. So I just wanted to say that because a lot of people showed up this
morning that had to go pick up their kids, had to go back to work, other people have already
planned to take the time off from work tomorrow to come and testify in the morning, and they’re
not going to be able to, and maybe they tried to come today and they’ll come tomorrow and still not
be able to, they are not going to be happy. And I can tell you if you had a night meeting, you would
have hundreds of people here. So I just want to make that known. So I know that I can’t speak to
the culture because I’m an invasive species, but I have been around the world and I do know, and I
know that you know, too, that this is one of the most special places on the entire planet. And I’m
begging you to have some vision because since this is such a great place, a lot of people are going to
want to come here. And when the economy improves, they are going to come here. And we need
every single spec of dirt along the shoreline for those people to come, and for the children that are
going to come. We need every single spec to stay and not be developed on the shoreline, because
we are going to need these places to help keep our population sane. Thank you.
HOUSEL: Thank you for your testimony. Is there anyone else who would like to testify on this
matter today? If you would like to come forward -.
JONES: I didn’t sign up. I apologize.
HOUSEL: Okay, come on forward. Could you please raise your right hand? Do you swear to tell
the truth now before the Planning Commission today on this matter?
JONES: Yes, I do.
HOUSEL: Thank you. Could you state your name and address, please?
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EXHIBIT D
JONES: Robert Jones, 75-6040 Ali‘i Drive.
HOUSEL: Okay, go ahead.
JONES: I cannot speak to the cultural historical significance of this except what others have said
being the truth. I do know the power of the place because I felt it being in the water there and just
feeling how wonderful it is. I’m opposed to any development there just because of one simple
thing. And how many of the Commission members live here on this island? All of you do? I’m
sorry, I don’t know that. Thank you. And how many of you have driven by the site, just driven by
it? Can you imagine what it’s going to look like with the four-story building on it? I mean, just
think about that. All you’ve got to do -. It boggles the mind to even think about it being there and
that anybody even think about giving a variance to something that wants to be built like that. I
mean, like I said, I would like to go into historical parts butpeople already have -. It’s just, you
look at the site, and you think about a four-story building being built there, it’s unconscionable to
me. There are so many other aspects to it that you can go into, but that alone speaks volume to just
not do it. It’s just an ugly eyesore. And thank you for the sign, and I thank you for your time. I
really hope that you guys really give this a lot of thought and consideration to the fact that, like
someone previously said, the money is not going to stay here anyway, if you are concerned about
money; it’s not going to be here – just going back to the mainland. So I don’t think this is a benefit
for Hawai‘i. I don’t think it’s a benefit for us the people. But thank you again for your time.
Thank you for your consideration.
HOUSEL: Thank you for your testimony. Okay, with no one else would like to testify today, a
couple things I’d like to ask the Commission for response. First thing is that we received a number
of new documents on this matter today that obviously we haven’t had a chance to read. Would you
like to take a recess, or possibly if you have any questions regarding this matter, this process, would
you like to meet in executive session? Okay. Now, we should have the opportunity to review all
these new documents before we proceed, so I think it’s appropriate that we take a 20-minute recess.
And that means that, it’s approximately 2:30 now, we would regroup at about ten to three. Is that,
everybody okay with that? Okay -.
P. OLSON: Mr. Chair?
HOUSEL: Mr. Olson.
P. OLSON: May I ask when this hearing today would be basically completed, or when you guys
plan on stopping?
HOUSEL: I think some of our Commissioners have to leave about 5:00; so I plan to go today till
about 5:00.
P. OLSON: Okay, thank you.
HOUSEL: Okay, so we will take a 20-minute recess and rejoin.
RECESSED The Chair called a recess at 2:20 p.m.
RECONVENED The meeting reconvened at 2:40 p.m.
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HOUSEL: Would the Leeward Planning Commission meeting come back to order. We’ve had a
chance to review the new documentation, and as a result of that some of our Commissioners have
some questions that they would like to consult with our corporation counsel to have clear
understanding to go forward. Do we have a motion to go into executive session?
BEAUDET: I’ll make that motion.
HOUSEL: We have a motion for, Commissioner Beaudet -.
BEAUDET: A motion for the Commission to go into executive session to discuss the items that
just came to the table.
NELSON: Second.
HOUSEL: Seconded by Commissioner Nelson. All in favor?
COMMISSIONERS: Aye.
HOUSEL: Opposed? Okay. We’re going to go into a 10-minute executive session and we’ll stay
here, and if we can ask you to vacate the room, so that we can have ourexecutive session.
EXECUTIVE SESSION The Commission went into executive session at 2:50 p.m. and came
out of executive session at 3:23 p.m. by a motion made by
Commissioner Giffin, seconded by Commissioner Bowman, and
unanimously carried by a voice vote of all Commissioners in
attendance.
HOUSEL: Leeward Planning Commission please come back to order now. Thank you for your
patience. Sorry it took a little bit longer; we had a few more questions than we anticipated. We’ll
continue at this point. We’ve got several items that we should address at this stage. One thing I
wanted to talk to all the parties about was we obviously, and you heard it, too, there are a number of
people that weren’t able to testify this morning that are expecting to come back tomorrow to testify
in the morning, and so a number of our Commissioners have concerns about those people being able
to provide their testimony. And so we want to discuss with you possibly reversing our decision.
We had an agreement that we would hold the testimony after the evidentiaryhearing tomorrow;
however, we would like to take the public testimony first thing in the morning. Is everyone okay
with that?
GHALAMFARSA: Mr. Chairman, I have an extremely urgent situation to go to O‘ahu and I have
to leave here no later than 11:15. I tried very hard to -. It’s a meeting with another at least twelve
people involved. I did try to reschedule that but it’s impossible. So I don’t know how that would
affect my testimony. If I could possibly do my testimony out of that order, if it’s possible.
YEH: Mr. Chairman?
HOUSEL: Mr. Yeh.
YEH: Yes, thank you. You know, I do understand that people’s schedules do require them to be
here at certain time and so, you know, in principle I don’t have a problem with that. Obviously, it
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EXHIBIT D
puts kind of a kink in our schedule, witnesses and the people that are coming from different
locations – that’s my major concern. I will say that if we do wait for public testimony go forward
again tomorrow morning, there is a very good likelihood we are not going to get to Ali’s part of the
case; so we’ll probably be going to have to come back. I can just see it now again anyway. So, you
know, if the Commission’s desire is to, for purposes of tomorrow, you know, a lot of people who
come and had planned to testify tomorrow, I’m okay with that. But I think it would be good, given
the Commission’s, you know, previous desire and the agreement of the parties to, you know, put the
rest of the public testimony afterwards, I would still prefer we maybe do kind of a bifurcated
procedure in that fashion. And I don’t know if that answers the question. But maybe there is a way
to accomplish both ways of doing it, but still take the people tomorrow that were going to testify.
And I think from Ali’s standpoint, if we do that, you are not going to go on tomorrow, and we’re
going to need to come back again, practically speaking.
GHALAMFARSA: If I don’t lose my chance of testifying, you know, I’ll abide by it.
HOUSEL: Mr. Olson.
P. OLSON: Mr. Chair and Members of the Commission, you know, we are doing this scheduling
based upon the assumption that the Commission is going to deny our joint request for a
continuance; but assuming that, if the Commission denies our request, we would like an opportunity
to examine Ali as a witness in our case. He is listed as a witness, and we would ask that he be
called out of order, if necessary, in order to meet these strict time constrains. We thought we were
going to put on evidence today, and we thought we had all of tomorrow. I know the other items on
the agenda were added on after ours was scheduled. But we would just ask the Commission to take
that into consideration; that’s why we would request that he be taken out of order. If not, it would
be another basis for our request for a continuance.
HOUSEL: It may be possible to take his testimony today, if you would like to do that.
GHALAMFARSA: If it (inaudible) okay -.
YEH: I, you know, my preference is to be able to put on our evidence in the order that we had
preferred, I mean that’s still our position.
HOUSEL: Did you, I’m sorry, I didn’t -.
YEH: To be able to put on our evidence because, as the applicant, we’re generally entitled to put
our witnesses on first. We did, you know, provided an accommodation for Junior Kanuha the last
time, which we felt was appropriate. But I really think that Ali’s testimony tomorrow, it’s not going
to happen; we’ll not be able to get to the intervenors’ case in any event, given the witnesses and the
cross-examination that I anticipate, it’s not going to happen.
HOUSEL: Okay, you would prefer to put your witnesses on first. Okay, that we understand. The
recommendation that we take the public testimony in the morning and work through as much of the
evidence tomorrow after the public testimony, is that in agreement?
YEH: Yes, and we are actually ready to do some today.
HOUSEL: Right.
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EXHIBIT D
YEH: But maybe we’ve got to get through some procedural issues -.
HOUSEL: Right, right, we can start today, right.
P. OLSON: That’s fine.
HOUSEL: Okay. We have one other matter that we’d like to discuss and present to you – that is
the petition for standing. And I’ll just read this, “As a preliminary matter for the agenda item
regarding SMA Application 10-41, the Planning Commission is being asked to determine whether
to accept a petition for standing from Jerome Kanuha, received by the Planning Department on
December 7, 2010. The Planning Commission acknowledges that it has received a letter dated
th
December 9from the appellant, William C. Foulk, objecting to the position, and the objections
contained within the letter were made a part of the record to this proceeding.” Did the petitioner
receive a copy?
P. OLSON: Yes, Mr. Chair, and we responded to that via letter, too. I hope you guys got a chance
to review that.
HOUSEL: Okay, and you did respond, okay.
P. OLSON: Yes.
HOUSEL: Okay. “Asdefined by Rule No. 1-3 and 4-6, any person or agency should be admitted
as a party, third party/intervenor, to a contested case proceeding, granting standing upon filing of a
timely request before the first public meeting on the particular matter, and if any one of several
criteria can be met.” So, would you care to express your concerns about this petition for intervene?
P. OLSON: Well, I want to call Jerome Kanuha as a witness and I can lay a record as far as our
basis for standing. If not, I can give you an offer of proof about what he would testify to, and then
after I lay a factual record and if you guys don’t want to accept my factual record after I give my
offer of proof, I can argue the law and why he should be allowed to have standing in this case.
HOUSEL: Okay, yeah, would you like to present your argument?
P. OLSON: Could I call him first, or would you want me to give my offer of proof? If you are
going to deny -. I’m asking for a hearing on this and have him testify.
HOUSEL: Call him up.
P. OLSON: Okay.
YEH: Mr. Chair?
HOUSEL: Mr. Yeh.
YEH: Before we start the process, you know, I, the basic premise of our objection basically is that
from a timeliness standpoint and the rules are pretty clear. I mean we have probably heard from the
public a number of people who might have had standing, if they had timely filed a petition for
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EXHIBIT D
intervention. The Commission’s rules are designed to provide a certain process and procedure
that’s also designed to assure certain timeliness of how proceedings flow. Tied with the request for
standing, and let me first say that I have, well, tied with the request for standing was also a request
for a continuance of the hearing related to the request for standing. And so that’s another reason
why we feel that it’s really not appropriate from a timeliness standpoint. The Commission’s rules
are pretty clear that it’s supposed to be done prior to the very first public hearing on this matter,
which was heard,I believe, in June of this year. Well, now, six months later, we still haven’t gotten
to a contested case hearing portion. Part of what the Crumrine’s counsel was saying is, look, we
don’t have any desire to change the exhibits or have any desire to change the witnesses. If that’s so,
then we can still continue, we can still have the Crumrine’s counsel advocate the issues that the
Kanuhas wish to do. I don’t have a problem with that because these are the issues that are involved
in this case. And I did want to say that I do have the utmost respect for Jerome Kanuha and his
family and the clan. But the procedural rules are the procedural rules, and that’s why we are saying
it’s really not appropriate. I don’t think we need an offer of proof or testimony about whether or not
they would have had standing, had they timely filed –that’s not the issue. The issue is timeliness.
Thank you.
P. OLSON: Mr. Chair, I would like to call Jerome and lay my record. If not, give an offer of proof.
We have a right to hearing on this. And we can argue after the offer of proof is made or after my
witness is called. And I disagree with the recitation of the law from Mr. Yeh.
HOUSEL: (After a quick consultation with Mr. Gonzalez,) on the procedural issue, Mr. Yeh, you
are right, the procedural issue, the submission is late, okay; however, per the rules of the Planning
Commission that is 4-6(e), it allows the Commission to join as a party any other person subject to
service or process if complete relief cannot be accorded – I won’t read the rest of it. Could you give
us your opinion on that?
YEH: Yes. The issue is whether or not complete relief can be afforded. There have been probably
now three opportunities for members of the public to testify including Mr. Kanuha who testified at
the last hearing. So those opportunities are still being, I think, afforded to the parties. He can also
testify,if called as a witness, by the intervenors – Idon’t have a problem with that, either. So I
think from a real practical standpoint the interests are not being impaired or impeded at this
juncture.
HOUSEL: Could I ask the other parties also, Mr. Ghalamfarsa, what your position is on this?
GHALAMFARSA: I really believe just to give the opportunity to Mr. Kanuha, that’s the least that
can be done. I mean I’m not really completely familiar with all the technicality of it, but just to
spend another half an hour or one hour, it’s too important to deny that. It’s really too important to
deny that. It’s just like a simple technical matter.
HOUSEL: Okay. Could I ask the Planning Director your position?
SELF: The Planning Director believes that it’s really up to the discretion of the Planning
Commission and their interpretation of the rules; however, whatever decision you make in this
situation, you need to keep that in mind for future cases like this because you’ll be setting a
precedent today for future cases. That’s the only thing we want to have you keep in mind.
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EXHIBIT D
YEH: Mr. Chairman, final comment,if I can. At this juncture if it really is the Commission’s
inclination to admit – I think it’s Jerome Kanuha, Mr. Olson?
P. OLSON: Yes.
YEH: As a party, we are okay with that. But we really strenuously object to having a continuance
of this matter because, if it’s tied to this intervention request, because that’s where the prejudice
comes in.
HOUSEL: Okay, so would you be, are you saying you would agree to allow Mr. Kanuha as a
party?
YEH: Correct, if there is no continuance that the Commission is going to grant in relation to that.
HOUSEL: I’m not sure there if I can agree with that condition. Mr. Olson.
P. OLSON: Quick response. I don’t believe the Planning Commission can take into consideration,
you know, the policy implications by doing this today. This case is about today and the Kanuha
‘Ohana’s right, constitutional right and procedural right to intervene. Now, as far as Mr. Yeh’s
th
objection, I believe, is December 9, he only objected to, I believe it was 6(a), the 7-day rule; there
was no objection under the (e) portion. And it’s my position that they have waived that objection,
and regardless it is in the discretion of the Commission to add him as a party under the (e) portion.
And I would like to have a hearing on that, so I can lay a record for that.
HOUSEL: Go ahead.
SELF: I would disagree with the statement he just made about precedent because this is essentially
the Planning Commission interpreting its own rules; so whatever interpretation you make today
does reflect on future hearings like this. And believe me, it will come back to you – it always does.
YEH: And again, on the continuance issue, if as the, you know, petitioners have stated that there is
not going to be any changes in witnesses or exhibits, then let’s stick with that, if the determination
is to allow intervention at this time.
HOUSEL: There is a question that I’d like to ask each of the parties, okay, and have your response,
please. Is Jerome Kanuha a person subject to service of process regarding this application?
P. OLSON: Yes. He is –Jerome – he is in the back. Yes, he is.
HOUSEL: Do you have a response to that? I mean, do you agree?
YEH: Yes, I have no reason to deny that, I’m not sure what the relevance is but, since he is going
to be represented by counsel.
HOUSEL: I’d like to ask our corporation counsel to help us understand that, please.
GONZALEZ: I was trying to get clarification on your positions on Rule (e) as written, 4-6(e), “The
Commission may join as a party any other person subject to service of process if complete relief
cannot be accorded among those already parties or that person has an interest in the matter so that
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EXHIBIT D
the action of the Commission may impair or impede that person’s ability to protect that interest or
create a risk of multiple or otherwise inconsistent actions.”
YEH: My position on this is that complete relief can be accorded to those who are already parties.
In terms of impairing or impeding that person’s ability to protect that interest, again, I think the
various witnesses that the intervenors, present intervenors, have already identified and planned on
calling, including Mr. Kanuha, if he so desires, will be able to identify the issues that are in play in
this particular permit application. And there’s certainly not a risk of creating multiple or otherwise
inconsistent actions by reason of this Commission’s decision. And I also say that, you know, I
think you need, it is important, and I think those two provisions, the timeliness provision in 4-6
really should be read together with 4(e) because 4(e) is really very much like a standing issue. As
we said before, I mean there could have been other people that requested standing at the very first
hearing as you are supposed to do this. So that’s really not the issue whether or not you have this
theoretical standing in a context of any burden of proof; the issue is whether or not there is a
timeliness to this application.
P. OLSON: Respectfully, Mr. Chair, I disagree with that characterization of the law; it’s a separate
section, separate and equal section, subsection (a) versus subsection (e). It provides an avenue for
our clients to have standing in this matter. And I would like to first, again, have a hearing on this,
and then we can argue the law and go back and forth. And I can go into how their rights are
infringed upon right now, but I would like to do that after I lay my record. And we can have legal
argument on this.
HOUSEL: (After a quick consultation with Mr. Gonzalez,) Mr. Olson, I believe before we can go
forward with the hearing, we have to make a determination if there was a timely filing on this.
P. OLSON: Mr. Chair, under (a), that would be the analysis, and I would incorporate my letter in
th
regards to standing in this matter –I believe that was December 10 – the practical reading of Rule
4-6(a), that they are in compliance; the first substantive hearing on this hasn’t really occurred.
Except for the limited testimony of Junior Kanuha, we haven’t begun the hearing. And there is no
prejudice to Dr. Foulk in having the Kanuha ‘Ohana become a party in this matter. There is no
surprise and there is no prejudice; we’ve already given our intent to use the same witnesses and the
same exhibits in the same way and same manner. Mr. Yeh says we can still advocate them.
Essentially, it’s not going to hurt Mr. Yeh or his client in the Kanuhas having standing on this.
Now, even if we are not granted standing under Rule 4-6(a), under 6(e) we can. And it’s a separate
section. It provides a separate form of relief. Now, the Kanuhas have direct genealogical ties to
this area and this property. Now, that is an interest in this case. And this interest is heightened, the
harm is heightened, when there was a lack of a sound archeological inventory survey, okay? Now,
when we first started this process –let’s assume that we, you know, we call June the first date –
okay, now SHPD has already reversed its determination that whether or not an AIS should have
been done; SHPD has said it was in error and the AIS should have been done. So the first
application that was submitted in back by the Planning Department, they’ve already discovered that
is in error, okay? The AIS has not been completed. The AIS had not even been, was not even
th
completed by the last hearing on August 27, okay? We continued this by stipulation, okay, for an
AIS to be done. At this time the Kanuhas were only to assume that the law was going to be
followed. Now, about beginning of October, we got a word that the archeological inventory survey
as recommended by SHPD, required by SHPD,that the recommended subsurface testing was being
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EXHIBIT D
done at the top of backfill. Now, this is on the southwest portion of the property. I don’t know if
you, I’m sure you Commissioners remember being there -.
YEH: Mr. Chairman, I -.
P. OLSON: I would like to finish my argument and I’m making a legal argument here. I’m trying
to answer -.
YEH: We are kind of veering from the issue of standing that we were talking about -.
P. OLSON: No, this, respectfully, I would like to finish, and this is related, directly related to my
argument and the harm that is present before the Kanuhas.I’m trying to explain how this
inadequacy in the law has put their interest in peril. So now, the backfill portion of the property, it
is not in dispute that the archeological survey testing went from the top of the backfill, okay, they
did not go from the original grade. So essentially it was an exercise in futility; it’s equivalent to
pouring a bucket of rocks on the ground two feet high and digging down -.
YEH: Mr. Chairman, Mr. Olson is not an expert in archeological inventory surveys. Now we are
veering beyond what he is allowed to do, and he is actually testifying -.
P. OLSON: Respectfully, I would like to finish my argument here.
YEH: And that’s the reason why we were ready to call Dr. Haun today about this issue.
HOUSEL: Mr. Yea, I’m going to overrule your objection right now, so that we can let Mr. Olson
finish his statement.
P. OLSON: So essentially, that subsurface testing was equivalent to dumping a bucket of rocks two
feet high on top of this carpet here, digging down to the carpet and say, oh, there is nothing there.
Now, that is not in compliance with the spirit of law, okay? Now, and that was in error, okay?
Because of this, the Kanuhas’ interest in protecting iwi -. They’re lineal descendants of this land.
In his pre-hearing statement, Dr. Foulk purports that there is no iwi to be found on the property and
there is likely no iwi. They cannot say that in good faith unless they’ve looked. And it is not in
dispute they did not look. So the Kanuhas have a distinct interest in protecting the potential
desecration of the iwi and the violation of law. And that’s their interest here and they couldn’t have
th
known this at the beginning of the case. They couldn’t have known this until after the August 27
hearing. We filed this petition a week in advance of this hearing today. They have a separate
distinct interest, and that’s it. They have a -. That’s it. And I would like to elicit testimony.
HOUSEL: Just so I understand what you are saying, it’s your opinion that the AIS has not been
completed, so therefore this paragraph saying as far as the timely submission for the intervention
has not passed. Is that correct?
P. OLSON: Let me reiterate now. Under 4-6(e), there is no timeliness requirement. It is, this rule
applies to this very situation, okay? Now, if, even assuming that, I will still argue under 6(a); the
substantive measure, the substantive hearing, hasn’t really started yet, and there is no prejudice to
the parties. We also argue that as a matter of law the Kanuha ‘Ohana was not aware that there was
no EIS, or AIS, at the time of the initial hearing, nor should they have been aware of the inadequate
AIS at the subsequent hearing dates. Here, the AIS was not submitted until two months after the
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EXHIBIT D
most recent hearing and four months after the first hearing. The rules were not followed regarding
subsurface testing. And said derelictions in the law compelled the Kanuha ‘Ohana to request
standing as a party.
HOUSEL: Mr. Olson, as I read the language of the rule, it says that the written request for standing
must be submitted no later than seven days prior to the Commission’s first meeting, not substantive
hearing.
P. OLSON: Correct. Let’s say if you want to do a strict construction of Rule 4-6(a), that’s correct,
okay? Now, a separate avenue that we are arguing and we documented in our letter, our December
th
10letter, is that the Kanuhas can be afforded separate relief and a separate avenue for having
standing under 6(e), okay? And it’s commonly referred to as anindispensable party in civil actions,
and this is similar, okay? And this rule is for these specific situations. And if we want to talk about
policy and setting precedent, what the Planning Department is basically insinuating is, and we can
insinuate back is, that if the Commission denies a lineal descendant of a property standing based
upon this rule, they are setting that precedent, and that would be litigated. And it goes both ways.
HOUSEL: Thank you, Mr. Olson. I think under the circumstances and looking at the procedural
issues here, I believe we are going to have to proceed forward on the procedural issues, and that we
are going to have to make a determination of the standing at this point.
P. OLSON: Okay, so the Commission is to take it to a vote now?
HOUSEL: Yes.
P. OLSON: Okay. I would like to, you know, make a record of that, so I can lay in the record what
his interest are. I want to elaborate on that. I want to give an offer of proof or call him to testify,
and then the Commission can make their decision on that. I think that’s only fair.
HOUSEL: Okay, that’s fair -.
YEH: Mr. Chairman, before we need to give and get another testimony portion, it might be more
efficient and productive, I mean, what’s the offer of proof? Maybe I should ask that rather than
have the witness testify at this point.
HOUSEL: Can you repeat it again?
YEH: Yeah, I’m just trying to find out what would be -. I’m okay with an offer of proof in terms
of a verbal offer of proof from Mr. Olson what would Mr. Kanuha to be testifying to in order to lay
a record. That may be enough.
P. OLSON: Well, if Mr. Yeh wants to stipulate to certain facts, we can do that as well. I would like
to have him testify.
HOUSEL: I guess -.
YEH: I can’t stipulate to anything unless I know what the offer is.
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EXHIBIT D
HOUSEL: Right. I think in the essence of time we probably ought to have the testimony. Go
ahead with it, Mr. Olson.
P. OLSON: All right. Jerome?
HOUSEL: Before we start, I probably need to swear you in. Could you raise your right hand?
Using the microphone, do you swear to tell the truth on this matter now before the Leeward
Planning Commission today?
KANUHA: I do.
HOUSEL: Thank you. Could you state your name and address, please?
KANUHA: Jerome Kanuha, 76-6242 Plumeria Road, Kailua-Kona.
HOUSEL: Okay, thank you.
P. OLSON: Good afternoon.
KANUHA: I think,evening.
P. OLSON: All right.
KANUHA: Good afternoon.
P. OLSON: Now, you are Jerome Kanuha, right?
KANUHA:Yes, I am.
P. OLSON: Okay, and who are you here for today?
KANUHA: I’m here to represent
P. OLSON: All right. And you are anative Hawaiian, right?
KANUHA: Yes.
P. OLSON: And you are Clement Junior Kanuha’s brother, right?
KANUHA: Yes, I am.
chiefess of Hawai‘i, only wahine chief that lives in that area. And it’s so significant that,
ny other
heiaus in the State of Hawai‘i, and this has been run by one wahine.
P. OLSON: And where are you from?
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EXHIBIT D
KANUHA: Where am I from?
P. OLSON: Yeah.
KANUHA: Right in Kailua town where nobody else is from.
P. OLSON: All right. Now, you are a lineal
KANUHA: Yes, I am.
P. OLSON: Okay. Now, both of these ali‘i have a heiau, right?
KANUHA: Yes.
the Kamoa Point, right?
KANUHA: Yes, it is.
P. OLS
KANUHA:It’s on the backside of -.
YEH: Mr. Chairman, just for purposes of making sure we get Mr. Kanuha’s testimony, I think it
will be better if we don’t lead him too much and just ask him the open-ended question – I think it’s
just better. And I know you are trying to be efficient, but I’d rather hear his answers in full.
P. OLSON: It’s my understanding the rules of evidence are relaxed here,and I’m just trying to lay
foundation and speed this up.
HOUSEL: Right. Yeah, please proceed.
connected, right?
KANUHA: Yes, they are.
P. OLSON: Okay. Now, your family, including your brother, as a native Hawaiian and a lineal
descendant, have special reverence for your kupuna, right?
KANUHA: Yes, I do.
P. OLSON: And that’s your ancestors, right?
KANUHA: Yes.
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EXHIBIT D
KANUHA: Yes.
P. OLSON: Okay. And this heiau complex are in the ahupua‘a of the subject property, right?
KANUHA: Forty acres of it.
P. OLSON: And your family gathers limu near the shore, right?
KANUHA: Yes, we do.
P. OLSON: Okay. And near the property, right?
KANUHA: Yes.
P. OLSON: And your family has been there for hundreds of years even before 1892, right?
KANUHA: Yup.
P. OLSON: And you served the Kamoa Point and the
KANUHA: Yes.
P. OLSON: And your family has done for a hundred years even prior to 1892, right?
KANUHA: Yup.
P. OLSON: What are iwi?
KANUHA: Iwis are grave sites.
P. OLSON: Okay. And what is their significance in the Hawaiian culture?
KANUHA: What’s the significance?
P. OLSON: Are they important?
KANUHA:Very important. I think iwis are, that’s where we bury our, we bury our, we are the
caretakers of all our bodies. Our spirits still hang around. And we bury them, we let them sit there,
but our spirit’s still in the area. I think, you know, you might get wrong with iwis, but I don’t want
to cause I’m going to some trips now, so -.
P. OLSON: As a native Hawaiian and as a Kanuha, you want to preserve, do you want to preserve
and ensure the sanctity of the iwi in your ‘ohana?
KANUHA: Definitely.
P. OLSON: Now, as a lineal descendant of this area, you want to protect iwi in that area, right?
KANUHA: Yup.
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EXHIBIT D
P. OLSON: And that’s because your family has been there for hundreds of years, right?
KANUHA: Or probably thousands of years.
P. OLSON: Okay. And it’s probably your kupuna whose iwi that is -.
KANUHA: It could be.
P. OLSON: As far as you are concerned?
KANUHA: Yeah, it is. That’s where we all come from, yeah?
P. OLSON: So you have an interest in protecting iwi in that area, right?
P. OLSON: Okay, including iwi.
KANUHA:Including the iwis.
P. OLSON: And you want to prevent the desecration of iwi in that area as well, right?
KANUHA: Definitely.
P. OLSON: Okay. Now, do you have anything else to say?
KANUHA: Yeah, I do. I get, you know, why, if Tom don’t mind, because you guys are going to
debate about a lot of things. A lot of times we get misled in a lot of things that we do when we
grow up, misled by people, misled of a lot of our culture. But sometimes we sit down and we look
and we say we are all from Kailua, this area; there is nobody in this room besides Aunty Hannah
and the kupuna that’s here that were born and raised
all of us. That’s where we all first came as the piko of all our, of everything for Hawaiian life is
from there. And I think, the gentleman who owns the property, now he understands what the piko
means because he’s been told. I understand you the Commission has decisions to make. I
understand that you will do the right one. Only ke Akua, they’re going to tell you what to do –
nobod. It goes from mauka to makai. And if you guys desecrate this
place, like where we are heading to, we talk, it’s all pau – no more nothing else. And I know, I
know that you guys are going to make right decisions, whether you build one hotel, whether you
build one house. But if we don’t educate our people now, we’re never going to learn about who we
are. You want to ask me questions, Tom?
P. OLSON: One last question: Now, do you want the proper archaeological inventory survey to be
done?
KANUHA: I do. And I also do think that, you know, the State Preservation has gone there – and I
don’t know if you just got you guys’ report on the thing yet – if, you know, one department says no,
it’s no. Why do we discuss about changing one of the guys’ decision about what is right? And I
don’t know the laws too much; but I know where my hearts stay, I know I’m connected, I know that
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EXHIBIT D
the people. I speak for my brother because he gasps for air everyday. I sit here, listen to all you
guys but, you know, you guys, everybody get different ideas how this place should be. I take you
guys front Kamoa Point and you go sit down, and I go take the gentleman who owns the property,
I’m going to take him over there with me after this; I’m going to make him look what he has in
front of his eyes, ial, a very, very special place. And you guys
should take the time to sit down and look. This place is the piko, the piko of everything that
happens in Hawai‘i. Whether you decide what is right or what is wrong, it’s the piko. And the
wahine is where you get our genealogy from.
many years, and now we’re going to desecrate this whole place because we want a building – no
can. They can’t do it. They can put that building up, but the spirit’s still going to come. But you
guys, I think it’s important that I’m here to speak for my brother. I was asked to do it, and I
represent my ‘ohana. Whether you decide, again – I’m still, like,going one circle – but if you read
my heart, that the kupunas above are going to do the right choice. I can go on, but no sense –
something like kuli ‘ia.
P. OLSON: No further questions.
HOUSEL: Okay. Mr. Yeh, would you like to cross-examine?
YEH: No, it’s, you know, it’s not so much cross-examination. Jerome, have you been involved in
Burial Council?
KANUHA: Have I been -?
YEH: Yes.
KANUHA: No, I haven’t. But my son is one of the Burial Council person right now.
YEH: Right. And as you understand, if iwi were to be found on this property, your understanding
is that the Burial Council then has jurisdiction to deal with the issue of the iwi.
KANUHA: Sure I do.
P. OLSON: I’m going to object. It’s an irrelevant question, and it’s not relevant to his standing
here.
KANUHA:But I also know that if you -.
HOUSEL: Hold on before you reply. Could you explain, Mr. Yeh, why you feel that’s relevant?
YEH: Well, it’s somewhat relevant, because when iwi are discovered, the jurisdiction in dealing
with, you know, and I think that’s where lineal descendants are also entitled to come and ask for
certain protection for iwi from the Burial Council. So there is this other jurisdiction that has the
ability to deal with that issue. And I was just trying to cover the issue,because it does have some
bearing on the issue, whether or not the discovered iwi, and how it’s treated, whether it’s here, and
the Burial Council has something to do with this impaired and impeded interest issue that’s in the
Commission’s rules. That’s where I was going.
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EXHIBIT D
HOUSEL: Please proceed.
YEH: Okay. Anyway, and I’m sorry if your answer was interrupted.
KANUHA: No. It’s like anything else, I mean you bring one brother over here to dig the puka for
two feet or three feet, if you can’t find something over there, did he go deeper? I mean, you know,
. And the land
has been cut in half and so happened just a little pu‘u in the front it’s by, by it’s lonely. Why, was it
alone? It was never alone – we was here.
YEH: Is there any information that you have right now that there is iwi located on the property
that’s the subject to this application?
KANUHA: No, I don’t have it on me, but I know that there is iwis all over that place.
YEH: And, you know, assuming that the archeological inventory survey that has been done is
deemed sufficient – and that’s why we were going to have Dr. Haun testify a little bit today about
the methodology why he did what he did and where he believes or what the probabilities are – but if
assuming that, you know, that gets accepted, part of the proposed conditions for this particular
application is that during the construction process, there be a monitoring plan in place just to assure
that if iwi are discovered, then it can be dealt with through the Burial Council. As far as a
monitoring plan goes, are you aware that that was in place, or what’s your position on that?
P. OLSON: Mr. Chair, I’m going to object again. This is not relevant to the issue of standing; it
perceives threat as more of an argument than it is a question. What Mr. Yeh is proposing is
archaeology by bulldozer basically. He’s prefacing the question on, you know, a reliance of
basically an inadvertent discovery. Mr. Kanuha’s interest is making an inadvertent discovery not
happen by doing a thorough proper job. And it’s irrelevant and it’s an argument instead of a
question.
HOUSEL: I think we need to continue, so I’m going to overrule your objection at this point. Thank
you.
KANUHA: Ask me the question again. I understand where you come from. First of all, you do
have, your gentleman went out there and digging the ground. How far did, did he go in the front the
ocean? Did he look over there? Did he go inside the ocean and really stand in the water? Because,
if you, you know, if I told him to go on the side of the road, if I say go on the road on the highway,
dig two feet down where the bulldozer went, do you think he’ll find anything? Probably not. You
know, if you tell him to do, to bulldoze, okay, now, and we’ve
been going through this process for twelve years, we tell the bulldozer went there, and we’re
moving one piece of gravel, the wahine tells us, no move them because there might be something
over there. How would she know? She never tried it.I mean there is a lot of things that I think -.
But the iwi goes, there’s iwisall over there, the road. Did we desecrate them? Yes, we did. Was it
part of the ahupua‘a there where it is? Yes, we did, it is. Later they built the house over an iwi.
Did he dig the ground up? Move the house. Maybe it’s under the house. I don’t know. But I think
I know for sure there must be some there; I have that feeling. Is that answer your question?
YEH: Yes, it does. Thank you. No other questions.
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EXHIBIT D
HOUSEL: Mr. Ghalamfarsa, would you like to -?
GHALAMFARSA: Yeah, I have – thank you, Mr. Chairman – yes. Many days Dr. Haun and their
crew were on the site.I was there watching them. There is that area that Mr. Olson was referring
to; I could clearly see that they could not, because there is a filled area with boulders to the south
side of the property. I mean, they did a very thorough job on the mauka side coming towards my
property and going towards the three, four-foot high rock wall, but in the south and southwest of the
property, they did not. It’s very clear that those boulders are filled area. I have been involved in
many projects on Ali‘i Drive and in the island, involving archaeological sites, archaeological
inventory surveys and so on and so forth in many projects in fact on Ali‘i Drive. I’m very familiar
with how the work is done; I’m not an expert, but as an architect, and I’ve been involved very
thoroughly. And I know, yes, if the grade is undisturbed, that is, that I can understand. But this
area on the south side of the house, it is disturbed; it has been filled. And I don’t think – and I’d
like to see what Dr. Haun has to say in that respect – I don’t think they did the right job. And I have
done quite a few projects that have quite extensive archaeological survey done. In fact, in other
projects I’m involved with Dr. Haun. So I totally support Mr. Olson and Jerome. Thank you.
HOUSEL: Do you have any questions of Mr. Kanuha?
GHALAMFARSA: No, I don’t. Thank you.
HOUSEL: Okay. Planning Director, do you have questions of Mr. Kanuha?
SELF: Good afternoon, Mr. Kanuha.
KANUHA: Good afternoon.
SELF: Just a couple of questions. Does your family have a unique relationship to
KANUHA: Yes, we do.
SELF: And does your family act as caretakers for their sites?
the State.
SELF: And for how many years has your family been actively taking care of these sites?
KANUHA: About twelve years, and there was many more people besides us, prior to us.
SELF: Okay. Thank you.
HOUSEL: Mr. Olson, do you have any redirect?
P. OLSON: No.
HOUSEL: Thank you. Commissioners, do you have any questions, or are you ready to consider a
motion?
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EXHIBIT D
BEAUDET: Mr. Chair?
HOUSEL: Yes.
BEAUDET: I would like to make a motion that we find the Kanuha ‘Ohana to have standing in this
case, given the circumstances that have been discussed and brought to the table. I think there was a
lot more argument than needed to be provided for on either side. Given the rules and the
regulations of what was presented to us, there was precedent to be set with whatever decision we
decide to take today relative to finding standing. I think the primary question that we are being
asked today is not about precedent, it’s not about timing; it’s rather someone,rather a party deserves
standing or not in this issue. I would like to make a motion that the Kanuha family be granted
standing.
BOWMAN: Second.
HOUSEL: Seconded by Commissioner Bowman. Is there any comment? Mr. Darrow, would you
like to take the roll?
DARROW: Thank you, Mr. Chairman. Just for clarification, this would be to grant standing for
the Kanuha ‘Ohana including Jerome Kanuha, correct?
BEAUDET: Correct.
DARROW: Thank you. With that, we’ll take the roll. Commissioner Beaudet?
BEAUDET: Aye.
DARROW: Commissioner Bowman?
BOWMAN: Aye.
DARROW: Commissioner Giffin?
GIFFIN: No.
DARROW: Commissioner Hickcox?
HICKCOX: Aye.
DARROW: Commissioner Iokepa?
IOKEPA: Aye.
DARROW: Commissioner Nelson?
NELSON: Aye.
DARROW: And Mr. Chairman?
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EXHIBIT D
HOUSEL: Aye.
DARROW: The motion passes, six to one.
HOUSEL: Thank you, Mr. Darrow. Okay. The question is you made a petition for continuance.
Would you like to explain that to the -?
P. OLSON: Well, I agree that we can make this thing go a lot quicker and there is a lot of energy
and emotion in this whole thing, but -.
HOUSEL: Could you hold your microphone a little closer?
P. OLSON: I agree with trying to make this thing go along quicker and a lot of the stuff we’ve
st
already made a record of in our letter, on December 1we wrote a letter. We also indicated in the
subsequent letter to the Commission that the Kanuhas will be joining that request. And under Rule
4-6(e), we are allowed to have 20 days for the Kanuhas from granting of standing in this case; so we
would submit in our letters the Commission’s ruling today to allow Jerome Kanuha and Kanuha
‘Ohana standing, I mean just to incorporate the arguments therein.
HOUSEL: Now, you’ve submitted documents already as a joinder, right?
P. OLSON: Correct. We formally joined the Kanuhas in the request for continuance, and we’ve
st
already documented that the reasons for our request in December 1 letter to Mr. Chair, and again in
following letters in response to Mr. Yeh Kanuha’s joinder in the request.
HOUSEL: Okay, so, are you -.
P. OLSON: I can reiterate it for you. I’m just trying to save time. You guys have our reasons. I
can go into them, if you want me to. I’ll do so, if you -.
HOUSEL: I think I’d like to ask Mr. Yeh his position on this.
YEH: I think, you know, the Commission having determined standing presumably under Rule 4-
6(e), then if you’re going to apply that part of the rule, I think it then means that this 20-day
suspension period applies. So, you know, be that as it may, that’s probably where we are at this
juncture. Now, there is a hearing scheduled tomorrow, but I’m not sure what’s going to take place
at that time.
HOUSEL: Okay. Could I ask the Planning Director her position on this?
YEH: And while we are talking about it, I mean, you know, from a precedent standpoint I think the
general concern probably is, from our part again, is, well, what’s to stop someone from coming in
next time we convene. So that’s just the overall issue that we have.
HOUSEL: I understand, yes, I understand.
P. OLSON: Mr. Chair, if you want me to go into my reasons for the continuance as well for the
record, or are you comfortable with what I’ve already written?
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EXHIBIT D
HOUSEL: Well, I wanted to hear what the Planning Director’s position was.
SELF: We are not taking any position on it; it’s up to the Commission.
HOUSEL: Okay. I’d like to ask corporation counsel to interpret the rule for us.
GONZALEZ: Sure. As I stated earlier, the parties can agree to waive any rule so that the
proceeding can proceed. Now, the main thing with Rule 4-6(e), if that was the basis for the motion,
is that there has to be service of the order to the person being joined; basically they’ve got to be told
and given notice that they are now a party to the action. He is here, and he knows he’s been made a
party to the action. Additionally, I believe he’s already retained the Olsons as their lawyer, as his
lawyer, and the Olsons have submitted pre-hearing statements on his behalf already, and are
prepared to argue the cultural significance for the Kanuhas already. So I don’t think there is a lot of
prejudice in proceeding, if the parties are fine with that, in proceeding, because we are coming back
tomorrow for public testimony anyway, I believe – I think that was the Commission’s inclination.
So to answer the Chair’s question, if the parties agree to waive the 20-day service of the order, then
we can proceed and take whatever evidence you can. And then if the hearing has to be furthered to
another day for additional evidence including matters regarding the CIA, then the Commission can
further the hearing for that purpose as well. Does that make sense to the parties and the
Commission?
YEH: Can I just take a five-minute recess to confer with my client on this, if you don’t mind? And
I apologize, I mean,we’ve been waiting for a while, but it’s kind of important. Thank you.
HOUSEL: Okay, let’s take a five-minute recess.
RECESSED The Chair called a recess at 4:25 p.m.
RECONVENED The meeting reconvened at 4:37 p.m.
HOUSEL: Will the Planning Commission please come back to order. Mr. Yeh, would you like to
explain your position?
YEH: Yeah, thank you, Mr. Chairman and Members of the Commission. Thank you for your
patience. You know, talking it over with the client, basically we are fine with them having a
continuance now. You know, just from a real practical standpoint, that looks like the reality of
things, it makes sense. It’ll give us time to talk some more, if possible. And I’ve already spoken to,
you know, Mr. Olson about it, and he’s fine with that, too. I think the real, from a procedural
standpoint, you know, there are people coming tomorrow, and I’m not sure -. I think that’s more of
an issue for Mr. Gonzalez to deal with, but -. That’s not my problem anymore.
HOUSEL: Well, appreciate that, Mr. Yeh. We’ve given that some thought, and we really don’t
want to disappoint people tomorrow. And so I’d like to entertain a motion, if you would like to -.
Commissioner Giffin.
GIFFIN: Yeah, I would. But to clarify the record, I don’t think it was just Mr. Gonzalez’s concern;
it really was the concern of the Commission, and that we did feel this obligation, if you will, to
honor those people who did make an effort to come, who didn’t realize that our schedule was such
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as it was. And bearing that in mind, my motion to grant in part and to deny in part the request for
continuance. This matter was scheduled for two days, as you all know, of evidentiaryhearing, and
this Commission would like to begin taking what evidence it can today, if possible, and of course
tomorrow, and to further the hearing to a date to be determined to accept additional evidence.
HOUSEL: Do we have a second for that motion?
NELSON: Second.
HOUSEL: Seconded by Commissioner Nelson.
YEH: Mr. Chairman, before the Commission votes – and my apologies for interrupting – in
discussions that I’ve had with the client, you know, we are okay with continuing the evidentiary
portion on the contested case; so I’m not sure that that motion, in light of that, is actually necessary
as opposed -. So we are okay with continuing the contested case portion, evidentiarycomponents
of this hearing, is what I maybe perhaps didn’t make clear before.
HOUSEL: So you would prefer not to have the evidentiary tomorrow?
YEH: Yes.
HOUSEL: Okay.
P. OLSON: If I could clarify. Essentially,I believe that we would stipulate, or there is a stipulation
by Dr. Foulk to continue this matter and we are moving for continuance, and that would be the
stipulation. I don’t know what the Planning Department, whether they are going to stipulate as
well.
SELF: Just stipulate to continue?
P. OLSON: Yes.
SELF: We don’t have a problem with that.
P. OLSON: And Mr. Ali as well.
GHALAMFARSA: Yeah, no problem with that.
HOUSEL: Okay, so -.
YEH: I think it would be good, though, to try to get some possible dates lined up just in advance.
GIFFIN: We were -.
HOUSEL: So -.
GIFFIN: I’m sorry. We were concerned about that, too, Mr. Yeh, because our vision is not to have
this being carried on forever, and we do feel that we’d like to have an ending in mind for sure. And
with that in mind, I think some sort of schedule, if you will, needs to be worked out, and that’s why
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we were talking about, you know, this kind of thing so that we’re clear. But there is a motion on the
floor.
HOUSEL: Do we want to have a discussion? Any discussion on the motion? Do you want to
withdraw your motion then?
GIFFIN: Bearing that in mind, then I would like to withdraw my motion.
HOUSEL: Are you okay with that?
NELSON: Yeah, sure.
HOUSEL: So the motion is withdrawn. So do we have a stipulation of a continuance, agreement
upon, with everyone, all parties?
PARTIES: Yes.
HOUSEL: Okay, good. Can we establish a date that we will further continuance?
thth
ARAI: The next Leeward hearing is on January 13 and the following month is February 17.
th
Both of those dates are Thursday. Then the following that, March 17, which is also a Thursday. A
lot of these dates were picked simply because it’s also up against a County furlough Friday, so keep
that in mind. And I’m also anticipating it’s not going to be a one-day affair, as you understand, so -.
HOUSEL: The Director, Planning Director.
LEITHEAD TODD: Mr. Arai, if it’s not a problem for staff, you know, we can authorize overtime
for the furlough days and schedule a hearing.
YEH: So we could have a two-day period, have this public testimony issue, you know, as the
Commission had decided before to do it after the contested case hearing except for tomorrow, that
might work.
GIFFIN: So, Mr. Chairman, are we looking at February then for two days?
ARAI: Well, my understanding, too, is to provide enough time not only for publication but to get
the information that you desire; so I honestly don’t know how much more time is necessary to get
comments regarding the CIA and AIS, for example.
LEITHEAD TODD: Yeah, is February enough time?
ARAI: And maybe Mr. Yeh has some inkling on when he can anticipate comments from the State
DLNR, and that might help us in -.
thth
YEH: I think if we did -. Was that February 17 and 18?
th
ARAI: February 17, yeah.
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YEH: We should be fine. I mean, if we won’t hear anything back from SHPD by then, then we
shouldn’t be continuing anymore.
HOUSEL: So that will work -.
P. OLSON: Mr. Chair?
HOUSEL: Yes.
P. OLSON: If I might fill in here and, you know, we certainly do respect and appreciate everybody
taking time out of their week, and the amount of time we had to wait here today, everyone had to
wait and, you know, but I think, realistically, I’m sure some other members of the parties here -. I
think this might even take three days just based on what happened today, you know, we waited so
long. And I know everybody has to take time out of their normal schedules, and we are sensitive to
that. I’m just, practically thinking,it might take a while. And I know this was continued last time
and we set two days because we thought we might solve everything; but some unforeseen issues
happened after that hearing and we are here now. So I don’t do it lightly, and I certainly do respect
everybody has got their own regular business to conduct. So they’re just my thoughts. If, you
know, three days, that might help resolve all these. And maybe in the interim we can set a status
conference so that if any of these issues come up, unforeseen issues, we can have a meeting about it
and discuss procedural issues as well –maybe even put it on the calendar the next time the Leeward
Planning Commission meets here, just a status conference, first item of the day and we just discuss
what’s going on and from there we can have better control over, you know, the schedule in case
something does pop up.
HOUSEL: Mr. Olson, do you believe that possibly the meeting, or the hearing time could be
reduced by working out some stipulations?
P. OLSON: Respectfully, we’ve tried to do that, and thanks to Mr. Yeh, he made an effort to do
that; but we weren’t able to come to a meeting of the minds regarding that. But we will try and do
so in the future.
HOUSEL: Okay. Daryn, question. The next scheduled Planning Commission meeting is February
th
17, but there are likely other items on the agenda for that day, right?
ARAI: Right – one moment – February at this point seems pretty light; I don’t anticipate a heavy
agenda for that particular date.
HOUSEL: Is it possible to pick a date where there are no other items on the agenda?
ARAI: That’s not, at this point I can’t guarantee it. So, again, it depends on the number of days
you are anticipating as well. I did quickly check with -. The reason I ran to the Director is she has a
nice smartphone, so I was trying to see if I can access the Council schedule and they haven’t
scheduled yet their hearing dates. So right now for the lack of any other information, it looks like
that Wednesday-Thursday-Friday is clear of any other hearing conflicts; so we do have a
consecutive three-day window.
ththth
HOUSEL: So that would be the 16, 17 and 18?
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th
LEITHEAD TODD: Mr. Arai, February 16 the County Council is meeting at the Sheraton
th
Keauhou Bay Resort; it is scheduled on the 16 for the County Council in February.
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HOUSEL: So the 16 would not be available, is that correct?
ARAI: Normally, the Director makes herself available to the Council.
LEITHEAD TODD: That’s okay. I can send a surrogate.
ARAI: There you go.
HOUSEL: Okay, wonderful, wonderful. Well, I’m hoping that we can get this taken care of. I
guess I wanted to just confirm that, now, we, as far as I know, have not had a response from, on the
AIS,from the State Historic Preservation Department, is that correct?
YEH: As far as I know – now, Dr. Haun was going to try to explain today, but maybe next time –
he has been in correspondence with Theresa Donham and she had a few questions, and I think he
was able to answer them hopefully satisfactorily. But we’ll see, you know, because the comments
haven’t come out. As we pointed out before, there really is supposed to be a 45-day period, and
maybe this time will allow her to come with some final comments perhaps –I think that will be the
case.
HOUSEL: And you believe that we can get the cultural impact assessment issues addressed also?
YEH: Well, you know, thank you for the opportunity to talk about that, because the cultural impact
assessment report that we provided to the Commission is really not a mandated report that SHPD
even has jurisdiction to approve. Now, we did out of courtesy send it to SHPD to provide comment,
which they did. Tomorrow, we were going to bring the CIA person to explain why those comments
really are not, No. 1, either legally mandated, No. 2, consistent with the OEQC guidelines even if it
was a mandated report and, No. 3, to explain her methodology. But I think between now and
February, we should be able to clear up some of those things, too.
HOUSEL: Okay, hopefully. Thank you, thank you.
P. OLSON: If I may respond, I just respectfully would object to the characterization of the law, and
I can reiterate that at another time;but we object to the characterization.
HOUSEL: Okay, thank you. (After a quick consultation with Mr. Gonzalez,) okay, get everything
in the right order today. Was there a motion made to continue? I think we need a motion, right?
There is no motion on the floor right now, so we -. Would you like to make a motion?
GIFFIN: I’m sorry?
YEH: What’s happening tomorrow again?
HOUSEL: Our intent is, because the Commission has committed to take public testimony
tomorrow, okay, even without the evidentiary presentation we would like to continue the public
testimony tomorrow. And you are certainly welcomed to be here, if you choose.
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YEH: Oh, okay.
HOUSEL: No problem with that, I hope, you know, the Commissioner would like to do that.
Thank you. We’d like to make a motion on the continuance.
th
BEAUDET: I’d like to make a motion for the continuance of this matter to the February 17
ththth
meeting – 16, 17 and 18.
HOUSEL: Do we have a second for the motion?
IOKEPA: Second.
HOUSEL: Commissioner Iokepa seconded the motion. Any discussion? Mr. Darrow?
DARROW: Thank you, Mr. Chairman. Just, again, for clarification, the motion before us is to
ththth
continue this hearing until February 16, 17and 18, although the hearing will be tomorrow as
well for public testimony, correct?
HOUSEL: That’s correct.
DARROW: Okay. With that, we’ll take the roll call. Commissioner Beaudet?
BEAUDET: Aye.
DARROW: Commissioner Iokepa?
IOKEPA: Aye.
DARROW: Commissioner Bowman?
BOWMAN: Aye.
DARROW: Commissioner Giffin?
GIFFIN: Aye.
DARROW: Commissioner Hickcox?
HICKCOX: Aye.
DARROW: Commissioner Nelson?
NELSON: Aye.
DARROW: And Mr. Chairman?
HOUSEL: Aye.
DARROW: The motion passes, seven to zero.
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IBIT D
EXH
HOUSEL: Thank you, Mr. Darrow.
YEH: Thank you.
GHALAMFARSA: Thank you.
HOUSEL: Thank you. And as a reminder, our meeting will start tomorrow 9:00 a.m.
BOWMAN: Before everyone leaves, I would like to disclose something before this committee.
Historically, I allow Ultraman athletes to stay at my house for free in Kohala. Ultraman happens on
Thanksgiving weekend. I would just like the Commission and the public to know that this
Thanksgiving I allowed the applicant, unbeknownst to me, to stay atour house. There was no
conversation. Actually, I didn’t see the applicant until they came at about 8:30 that night. I had
conversation I think with your wife, and had no idea that it was the applicant. We spoke briefly,
they went to sleep, I went to sleep upstairs with my kids, and they left before we woke up. But I
feel that it’s fair to let the public know this will in no way, in no way, affect my ability to be
impartial. So, that being said for the record, thank you.
HOUSEL: Thank you, Commissioner Bowman.
P. OLSON: Thank you.
HOUSEL: I think this portion -. Is there any other business that -. Yeah. I think we’ve concluded
this part on this item. So I want to thank you very much. And we’ll continue in February. We do
have some administrative tasks for the Commission, so -.
P. OLSON: Thank you, Mr. Chair, and thank you, Commissioners, for your time today. We
appreciate it.
HOUSEL: Thank you, Mr. Olson.
The discussion ended at 4:56 p.m.
Respectfully submitted,
Noriko Sauer, Secretary
Leeward Planning Commission
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