HomeMy WebLinkAbout2025-04-14 UNITE HERE Local 5 Testimony From: Ivan Hou
To: LPCtestimonv
Subject: Public Testimony for April 17,2025 Leeward Planning Commission Hearing
Date: Monday,April 14,2025 4:04:27 PM
Attachments: Local 5 Testimony to LPC Hearino 2025.04.17.odf
Aloha,
Please see attached for UNITE HERE Local 5 public comment for LPC hearing on April 17,
2025. Please feel free to reach me at the contact information below. Thank you.
Ivan Hou
UNITE HERE Local 5
1516 South King Street
Honolulu, HI 96826
Tel: (808) 941-2141 ext. 267
Email: ihou@5.unitehere.org
UNITEHERE !
Cade Watanabe. Financial Secretary-Treasurer Gemma G. Weinstein. President Eric W Gill,Senior Vice-President
1516 South King Street, Honolulu, Hawaii 96826-1912•Phone(808) 941-2141 •Fax(808) 941-2166•www.UniteHere5.org
April 14, 2025
Leeward Planning Commission
West Hawaii Civic Center, Council Chambers, Building A
74-5044 Ane Keohokalole Highway
Kailua-Kona, HI 96740
Public hearing on April 17, 2025 at 9:30am
Testimony about SMA permit determinations for agenda item titled "Planning Director's
Report"
To Chair Au, Vice Chair Noborikawa and members of the Leeward Planning Commission,
Thank you for this opportunity to testify. My name is Ivan Hou and I'm with UNITE HERE Local 5.
We represent 10,000 workers in the hotel, foodservice and healthcare industries across the
state. We represent workers on the Big Island including workers at the Royal Kona Resort,
Waikoloa Beach Marriott Resort and Kaiser Permanente health clinics.
We recently contacted you and other Hawaii County regulatory stakeholders regarding Zoning
Variance application #PL-ZVAR-2025-00007, by Kona Hawaii Development LLC, forTMK: (3)-7-5-
018:011 located on Alii Drive. In the communication, we opposed the zoning variance request
made to the County, but we also raised concerns about the water usage analysis the Leeward
Planning Commission ("LPC") relied upon when deciding on the Special Management Area
("SMA") permit. Please see the March 14, 2025 dated letter included below as Exhibit 1.
The SMA application had a discrepancy between the room-mix in the architectural plans
compared to the room-mix assumptions used by the engineering firm that calculated the water
usage. The applicant's analysis claims water usage that conveniently fell within 980 gallons of
the Hawaii County Department of Water Supply's allotment, but our manual count of the
architectural plan's room-mix leads to a different conclusion where water usage would
significantly exceed the water allotment. We found that:
- The SMA application undercounted the number of people by at least 84 (24.4%)
o Combined, the additional 84 occupants would add up to new grand total of 25,862 gallons
per day.
o That would be 4,840gpd or 23% more than Savant Engineering's estimated water usage of
21,022gpd considered in the SMA permit.
- The project would exceed the DWS allotment of 22,OOOgpd by 3,862gpd, or 17.6%.
- The State of Hawaii Commission on Water Resource Management said in its October 19, 2023
letter to the Planning Department that it still had "concern on whether DWS can meet the
additional demand of 22,OOOgpd for this proposed project".
Water usage was a major concern raised by some commissioners and residents during the SMA
permit process.
We ask the LPC and Planning Director to deliberate revoking the SMA permit under Rule 9 of
the Planning Commission Rules because of possible noncompliance with the conditions of the
permit, or possible harm to the health and safety of the Leeward community caused by excess
water usage. We also ask the LPC and Planning Director to deliberate on if the SMA permit was
granted with a water analysis with discrepancies in violation of the objectives, policies, and
guidelines of Hawaii Revised Statutes 205A.
We look forward to hearing from the LPC and Director to understand if:
- the County shares our concerns about the water usage discrepancy,
- action on or amendment of the SMA permit is being considered, and
- an explanation for the discrepancy was provided by the applicant.
Respectfully,
Ivan Hou
UNITE HERE Local 5
1516 South King Street
Honolulu, HI 96826
Email: ihou@5.unitehere.org
Phone: (808) 941-2141
**Exhibit 1: March 14, 2025 Letter **
March 14, 2025
Via postal mail and email
Jeff Darrow, Planning Director
County of Hawaii Planning Department
74-5044 Ane Keohokalole Highway, Bldg E
Kailua-Kona, HI 96740
Re:Zoning Variance application#PL-ZVAR-2025-00007, by Kona Hawaii Development LLC,for TMK: (3)-
7-5-018:011.
To Director Darrow,
My name is Ivan Hou and I'm with UNITE HERE Local 5. We represent 10,000 workers in the hotel,
foodservice and healthcare industries across the state.We represent workers on the Big Island including
workers at the Royal Kona Resort, Waikoloa Beach Marriott Resort and Kaiser Permanente health clinics.
Local 5 has a long history of advocating for public interests in urban planning. For example, we fought for
community interests in the Turtle Bay Resort development on Oahu's North Shore (Unite Here v. City and
County of Honolulu, Civil Nos. 06-1-0265, 06-1-0867), and we are in an ongoing civil case in which the
State Supreme Court recently decided in our favor(Unite Here!Locals v. PACREP LLC, Civil Nos.
1 CC131000047, 1 CC141000753).
We have concerns about the permitting process related to the Kona Hawaii Development, LLC
development project at 75-5868 Ali'i Drive,TMK: (3)-7-5-018:011. Kona Hawaii Development is affiliated
with Baywood Hotels, a hotel operator and developer with over a hundred hotels across the country.The
company plans to build a 100-room hotel and parking lot with 143 parking stalls.The applicant's Special
Management Area Use Permit Application (PL-SMA-2023-000038)was approved by the Leeward
Planning Commission in December 2024. We feel the SMA process didn't adequately address the
setback encroachment problem.
The applicant applied for a zoning code variance in January 2025 (PL-ZVAR-2025-00007). We strongly
oppose the applicant's variance application.
The applicant is requesting a zoning variance to allow a known setback encroachment to be
grandfathered in as a "non-confirming" permitted improvement.The encroachment should have been
addressed during the SMA permit process when it was already a known problem at the time.The
encroachment problem was flagged in a report uploaded to the County website on December 4, 2023, a
full year before the Leeward Planning Commission (LPC) approved the permit application on December
19, 2024.
The zoning variance application reported that "During the course of the Applicant's due diligence, an Alta
Survey of the property boundaries and structures was done by Wes Thomas Associates. The survey, as
will be described in detail below, identified some possible setback issues."The depth of encroachment
ranges from two feet to as much fifteen feet into the twenty feet setback.To be clear,fifteen feet is 75%
of the setback distance. Furthermore,the existing structure encroaches around two feet into a ten feet
"future road widening setback area".
The appropriate thing to do now is remediate the encroachment, not give an after-the-fact variance.A
Wes Thomas Associates letter informing DPM Acquisition LLC(the current landowner) of the
encroachment was dated December 16, 2022.This was months before the two parties entered into a
sale and purchase agreement on May 1, 2023, and two years before the LPC approved the SMA permit.
As stated above, applicant discovered the issue in the "due-diligence" period but a more specific time
frame of their awareness is not disclosed.
The applicant attempts to pass "culpability"to County of Hawaii stating, "As such there is culpability on
the part of the county in not only allowing or permitting the improvements but subsequently certifying
that they were acceptable at their existing location."Applicant claims it is not "fair"that "innocent and
unsuspecting parties be made responsible for this costly reduction"
The Wes Thomas letter indicates the applicant and/or landowner should have known of the
encroachment issue yet still decided to enter into the purchase and sales agreement. In fact,the Wes
Thomas letters offers a suggestion that landowner research the legal argument that the 15 feet
encroachment of a 20 feet setback is "de minimis" under County Ordinance and Hawaii Revised Statutes.
We offer these recommendations:
a) Recommendation:The County should request a copy of the purchase and sales agreement to
understand timeline of the parties' knowledge of the encroachment and obligations of the
parties regarding the encroachment or parcel entitlement process.The County should clarify if
the legal responsibility falls on the current landowner, applicant or land surveyors to remediate
the setback problem.The County's responsibility now is to remediate the issue now that it is
known to the County.
b) Recommendation:The County should ask the applicant when and how applicant learned of the
encroachment issue. Our search of the public record didn't reveal the exact date of awareness
by the applicant, only vague references were given. However, it is clear at the very least,the
landowner was made aware in the December 2022 letter from Wes Thomas Associates.
c) Recommendation: Clarify if landowner communicated knowledge of the issue prior to the sales
and purchase agreement entered into in May 2023.
The applicant's request for the zoning variance is inappropriate, sets bad precedent and is bad planning
policy for the following reasons and we offer more recommendations to serve public interest:
The encroachment was a known issue prior to SMA approval, but our search of the public records shows
that debate around the encroachment was limited. For example, Commissioner Noborikawa raised the
question during the December 19, 2024 LPC meeting and the applicant's representative responded to it.
But there was no substantive concern raised by the Hawaii Planning Department(HPD) staff member
presenting on the project.There was also brief reference to the encroachment in the VD Background
Report" dated November 23, 2023 that said a setback zoning variance will be requested in the future.
The zoning variance request is a judicial decision that should be debated by stakeholders; it should not
be treated as a ministerial approval tied to the completed SMA permit.
a) Recommendation: It was inappropriate that a SMA permit process was conditioned on a yet-to-
occur zoning variance application.The County planning department should not allow this type of
precedent. If knowledge of the encroachment (either by applicant and/or landowner) pre-dated
the purchase agreement and SMA plan application,then the setback encroachment issue should
have been resolved first.The LPC made no promise to the applicant that approval of the variance
was automatic after SMA approval.The encroachment variance should be denied now and the
encroachment should be remediated by applicant or landowner.
In addition to the up-to-15 feet encroachment of the concrete pad,the applicant also wants a variance
for a retaining wall that encroaches on the 10 feet wide future road widening setback and the 20 feet
setback.
a) Recommendation: Include the rock wall encroachment as component of the issue in dispute.
b) Recommendation:Applicant's intent to build a sidewalk in the 10 feet road widening setback
should not, as the report claims, "fulfill the general intent of the condition".As the name implies,
the 10 feet road widening setback should be used for road widening.
Community stakeholders shared their fears about Kahakai Road capacity.That community concern is
directly tied to, and can be mitigated, by honoring both the "10 feet wide future road widening setback"
and the 20 feet setback.
a) Recommendation: Require the landowner or developer to remediate the encroachments
because it would directly mitigate the traffic impacts concerns raised by community members by
creating the space needed for increased road capacity. We do not accept the applicant's
argument that the costs to re-engineer the pad justifies the variance.
Hawaii County Council Member Inaba testified in opposition to this project in 2024.Traffic and road
safety was emphasized in his testimony. Mitigation and remediation of the setback violation is direct
action that can mitigate Council Member Inaba's concerns.
a) Recommendation:Testifiers raised the concern about the lack of an appropriate traffic study for
the project. Consider how the lack of a traffic study limits the set of facts available when making
a decision on a zoning variance that is directly to traffic impacts.
Planning Department staff stated that the Department of Public Works would require a foundation
certification and review of the concrete pad. If an examination of the safety of the concrete pad is going
to be done,the only logical thing is to do it before a zoning variance is granted. If the concrete pad is
found to be deficient then remediation of the concrete pad can honor the 10 feet road widening and 20
feet setback.
In fact, Commissioner Rodriguez expressed concern in the December 2024 hearing about using the
existing foundation. He explained that moisture can cause steel in concrete to rust and expand, which
could potentially damage a nearly 20-year-old foundation. Google Maps images show rebar that sits
exposed to the salty ocean air.
a) Recommendation: Require the landlord/applicant and DPW to inspect concrete pad safety
before variance application moves forward.
Water Use Calculation
We were not aware of the applicant's SMA permit process so we didn't intervene during that process.
Our review of the SMA permit supporting documents while preparing to respond to this zoning variance
application uncovered a substantial discrepancy in the water usage calculation in the SMA documents.
We believe all stakeholders should be made aware of this water usage discrepancy before the
development goes any further in its permitting process.The LPC made decisions on the SMA permit
based partly on the discrepancy we talk about below. The SMA permit should be reconsidered.
The engineering firm hired to do the water usage analysis found that the project will use 21,022 gallons
per day.The Department of Water Supply (DWS) previously entitled the property for 22,OOOgpd.
Fortunately for the applicant,the difference was 978 gpd less than the limit imposed by the DWS.This is
a margin of about 4.4%. However, we have concerns about the water usage analysis.
Ramon Velazquez of Savant Engineering, LLC was the author of the water usage calculation in the PD
Background Report. He is licensed as a "Mechanical Engineer" in Hawaii but based in Florida.
We are concerned about the discrepancy between the room types presented in the architectural
drawings and the room types assumed in the water usage analysis. Savant Engineering's analysis is based
on the hotel having the following room mix:
Room No. of Max Total
Type units occupants occupants
Type A 33 2 people 66
Type B 62 4 people 248
Type C 5 6 people 30
Type D N/A N/A N/A
Total 1 100 1 1 344 people
We hand counted the following room types in architectural drawings in the Background Report and
found the following:
Room No. of Max
Type units occupants Total Occupants
Type A 25 2 people 50
Type B 12 4 people 48
Type C 51 6 people 306
Type D 12 ? ?
Total 100 404 people
There is a substantive discrepancy in all room types, especially the Type-C room count that allows 6
occupants per unit. Savant claimed only 5 Type-C rooms, while we counted 51 Type-C rooms in the
drawings. And the engineering analysis didn't even recognize the existence of Type-D rooms. Our
analysis shows 60 more people than the Savant Engineering calculation without adding Type-D
occupancy limit.
Even assuming Type-D allows only 2-person maximum occupancy,that would mean at least an extra 84
people for new grand total of 428 occupants.The water analysis under-counted occupants by 24.4%,
while there was only a 4.4% margin between the entitled water allocation versus estimated usage.
Using Savant's assumed "amenity usage" of 25gpd per occupant and in-room usage of 32.62gpd per
occupant,the additional 84 people would add:
— An extra 2,100gpd for amenity usage
— An extra 2,740 gpd for in-room water use.
Combined,the additional 84 occupants would add up to new grand total of 25,862 gallons per day. That
would be 4,840gpd or 23%more than Savant's estimated water usage of 21,022gpd considered in the
SMA permit.
The project would exceed the DWS allotment of 22,000gpd by 3,862gpd, or 17.6%.
The State of Hawaii Commission on Water Resource Management said in its October 19, 2023 letter to
the Planning Department that although water commitment and facility fees had been paid already, it still
had "concern on whether DWS can meet the additional demand of 22,000gpd for this proposed project".
Applicant acknowledged that "securing additional water from DWS is not feasible" in a letter dated Nov
10, 2023.
This is a substantive discrepancy in the application the LPC relied upon when approving the SMA permit.
We urge you to reopen the SMA permit and consider our recommendations before moving forward with
more permitting decisions.
a) Recommendation:The County should ask applicant and Savant Engineering to explain the
discrepancy between room types and counts in the architectural plans and the water usage
calculations the professional engineering firm provided.The SMA permit and DWS water
entitlement should be reviewed.
b) Recommendation:The County should clarify whether it is regulatory or company policy that
restricts the number of"maximum"guests per room type and how occupancy counts may
change in future.
c) Recommendation:The County and DWS should audit the water usage survey by Savant
Engineering for accuracy and ask if all possible water usage sources are accounted for by Savant
(such as housekeeping, staff and bar use and whether the scope of the term "amenity usage" is
inclusive of all possible water uses).
Please consider Unite Here Local 5 a party of interest in this project. If you have any questions or
comments at this time, please feel free to contact me at the phone or email below.Thank you for your
attention to this matter.
Ivan Hou
UNITE HERE Local 5
1516 South King Street
Honolulu, HI 96826
Email: ihou@5.unitehere.org
Phone: (808) 941-2141
CC via postal mail and email:
Jeff Darrow, Hawaii County Planning Director
Dean Au, Leeward Planning Commission
Donna Noborikawa, Leeward Planning Commission
Barbara DeFranco, Leeward Planning Commission
Michael Dela Cruz, Leeward Planning Commission
Clemenet Kanuha, Leeward Planning Commission
Armando Rodriguez, Leeward Planning Commission
Heather Kimball, Hawaii County Council
Jennifer Kagiwada, Hawaii County Council
Dennis Onishi, Hawaii County Council
Ashley Lehualani Kierkiewicz, Hawaii County Council
Matt Kaneali'i-Kleinfelder, Hawaii County Council
Michelle Galimba, Hawaii County Council
Rebecca Villegas, Hawaii County Council
Dr. Holeka Goro Inaba, Hawaii County Council
James Hustace, Hawaii County Council
Kimo Alameda, Mayor's Office
Keith Okamoto, Hawaii County Department of Water Supply
Kawika Uyehara, Hawaii County Department of Water Supply
Steve Pause, Hawaii County Department of Public Works
Julann Sonomura, Hawaii County Department of Public Works
Ciara Kahahane, State of Hawaii Commission on Water Resource Management
Dawn Chang, State of Hawaii Commission on Water Resource Management
Kelly Lodde, DPM Acquisition LLC
Nick Naik, Kona Hawaii Development LLC/Baywood Hotels