HomeMy WebLinkAbout2026-05-11 PL-SPP-2024-000075 Opposition Testimony from Jim McMahonFrom:Jim McMahon
To:Planning WPC Testimony
Subject:Public Testimony In Opposition to Special Permit Application PL-SPP-2024-000075
Date:Monday, May 11, 2026 3:41:27 PM
Attachments:PL-SPP-2024-000075 Testimony - Oppose - Jim McMahon -2026.pdf
Aloha Hawaii County Windward Planning Commission members.
Please accept my following testimony (attached) in continued opposition to item #1 on the
Special Meeting Agenda of the Windward Planning Commission scheduled for this
Thursday, May 14, 2026 concerning Special Permit Application PL-SPP-2024-000075.
Sincerely
Jim McMahonIndian Tree Road, near Pāpaʻikou, Hawaii
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To: WPCtestimony@hawaiicounty.gov
From: jimlichun@gmail.com
Subject: Public Testimony In Opposition to Special Permit Application PL-SPP-2024-000075
Aloha Hawaii County Windward Planning Commission members
Please accept my following testimony below in continued opposition to item #1 on the Special
Meeting Agenda of the Windward Planning Commission scheduled for this Thursday, May 14,
2026 concerning Special Permit Application PL-SPP-2024-000075.
Sincerely
Jim McMahon
Indian Tree Road, near Pāpaʻikou, Hawaii
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Summary:
We are not categorically opposed to the Falls on Fire or similar events, nor do we ask
this body to prohibit them as a matter of principle. But we do object to the present
location. Such events should be located far away from residential and agricultural areas
- in areas that are less likely to be impacted by the noise, traffic, and other nuisances -
similar to the better known Burning Man festival located in the Nevada desert. Our
objection to the permit is driven primarily by the proposed heavy equipment storage and
base yard use. That use introduces a continuous industrial operation into a protected
Agricultural District in a manner that directly and substantially interferes with existing
agricultural operations on neighboring properties, including our own.
The current record cannot support the findings required for approval. The proposed
uses—particularly the heavy equipment base yard—are not driven by agricultural
necessity but by logistical convenience, and they rely on a privately owned and privately
maintained easement as de facto public infrastructure. This reliance creates cumulative,
unenforceable, and incompatible impacts, including persistent heavy vehicle traffic,
dust, noise, vibration, diesel exhaust emissions, degradation of privately owned roads,
including various safety, security and liability concerns, all of which undermine lawful
agricultural production, processing, and ag-tourism uses.
Absent findings that resolve these failures—specifically, the incompatibility of industrial
uses with agricultural zoning, the substantial adverse impacts on neighboring farms,
and the lack of enforceable access governance—approval cannot lawfully proceed.
Denial of the Special Permit is therefore the only legally defensible outcome on the
present record.
Detailed Arguments in Opposition to the Special Permit
My wife and I are the intervenors in this contested case challenging this Special Use
Permit application. Granting of standing in these proceedings was made primarily
because our property is bisected by a private road easement used as the primary form
of access to the permit applicant’s subject property. Our interests are therefore different
from that of the general public. However, since many of our neighbors and other island
residents provided testimony in opposition to these proposed uses we feel obligated to
include many of the concerns raised by the broader community which we also share.
To begin, we as the Intervenors (James McMahon and Lichun Huang, Husband and
Wife) purchased our property at the end of 2019 in the hopes of being able to operate a
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farm to grow tropical fruits including Cacao that cannot be easily cultivated elsewhere
throughout much of the rest of the US. This area of the Hamakua coast north of Hilo is
blessed with the conditions necessary for this type of farming. Our biggest concern at
the time of purchase was the presence of the road bisecting our property as we knew
that it represented the greatest risk due its potential burdens it could impose on our
property. We therefore consulted a highly experienced local real estate attorney as well
as did our own research into various land use laws in the state Hawaii Revised Statutes
(HRS) and the local Hawaii County Code (HCC). Given that our property as well as that
of all of our immediate neighbors and dominant road easement users all have the same
Agricultural (A-20A) zoning, our burden should have been constrained by the allowed
uses in that zoning as well as administrative protections granted by the State and
County laws. While no one can predict the future, one would assume that any major
change in zoning would occur gradually as part of a managed County or District
development plan. In short, our confidence in the protections offered by the laws was
misplaced. In retrospect, we should have spent more time researching the County’s
track record of previous controversial planning and development decisions throughout
the past decades in order to have a better understanding of the risks to purchasing
agricultural land in this district. However, even by measured by these past standards,
the proposed combined non-agricultural uses in this application go beyond what has
ever been considered for approval before. These include the following:
1. Two unrelated uses in the same Special Use Permit Application
Having reviewed every Special Use Permit Application submitted to the Hawaii
County Planning Commission since 1992, we were unable to find very many
permits for more than a single use. Of these, many were for related uses. In any
case, none with 2 or more unrelated uses were fully approved with only one of
the uses receiving approval.
It's a common legislative tactic to attach an unpopular proposal to a more
popular/less controversial one in hopes that both proposals will get approved. In
this case as to which one of 2 proposed uses enjoys more administrative and
public support is debatable. However, it's clear based on the application
submission, the Planning Director’s Recommendation Report, feedback from
other public agencies, public testimony, and reporting in news media that the
“Falls on Fire” event use has received almost all of the attention throughout the
application process and thus has largely overshadowed the other remaining use -
the Heavy Equipment Baseyard. This raises some concerns over the permit
application reviewing process as to whether or not each proposed use will be
evaluated independently based on its merits. For example the criteria listed
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under Section 6-3(b)(5) of the Hawaii County’s Special Permit Practice and
Procedure should be reviewed for each unrelated use. When they are not, it
means that one or more of the proposed uses did not receive the same and
equal comprehensive evaluation. In the permit application, the Planning
Director’s Recommendation, and the Contested Case Hearing Officer’s report it
is often unclear if the evaluation criteria is being applied to one use, the other
use, or to both uses at the same time. It is often implied that the “Falls on Fire”
event use is what is being discussed without it being explicitly stated while the
other use which should be subject to a similarly rigorous review goes
unmentioned.
2. Misleading Description of the Proposed Uses in the Special Permit
Application
The Application describes the proposed uses as follows: (1) “to host an annual
four (4) – day event with overnight camping” and (2) “to store up to six work
vehicles on the property”. As to the first proposed use, it is more accurately
described as a 4-day Burning Man themed festival. Overnight camping is simply
one component of this multifaceted event. Whether one is familiar with the
Burning Man movement or not, at least they would be easily able to find more
about these types of events by performing some online research. In so doing
they would probably also uncover much of the challenges and controversy
surrounding the main Nevada-based event and similar events held elsewhere. It
is not the typical set of outdoor recreation activities one has during traditional
camping events.
Similarly, there is a substantive difference between a proposal “to store up to six
work vehicles on the property” or to allow “storage of commercial vehicles” and
the actual use as a heavy equipment rental baseyard. The former implies that
vehicles are going to be stored on site for lengthy periods of time much like how
someone would use a self storage facility to store personal belongings. Whereas
the more accurate heavy equipment baseyard use describes regular/daily traffic
to and from the property by large heavy construction type vehicles with other
support services such as equipment repair and refueling - a much more intensive
commercial-industrial use.
Should the permit reviewers dive into the body of the application document and
find the following paragraph offering a more complete description of the proposed
vehicle storage use:
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With regard to the request to utilize a 0.46-acre area of the parcel for
vehicle storage, these vehicles are used to support the ranching activities
on the property. However, while not being used for ranching purposes, the
rancher who owns the vehicles also uses them to haul gravel. His ability to
use his farm vehicles for other commercial purposes is vital to his ability to
finance the vehicles and earn a living. However, because the use of the
vehicles is not strictly related to agriculture use, a Special Permit is
required to store the vehicles on agricultural land.
The issue here is that while factually correct it is both misleading and incomplete
description of the proposed use. It is misleading because the vehicles will be
used off site for non ranching purposes and for commercial material hauling
purposes the vast majority of the time. This evidence comes from observations
made prior to the following notice of violation issued by the Planning Department
against the subject property: ZCV-2021-015E - Unpermitted Commercial Rental
Business / Base Yard within the Agricultural Zoned District at which time several
large dump trucks used to haul the gravel were observed departing the baseyard
daily during the early mornings and generally returning in the late afternoon. The
description is incomplete because it only mentions the gravel hauling aspect of
this use. When in reality a far broader set of heavy equipment rental services are
offered as provided as evidence during the Contested Case hearing. This
includes excavation equipment such as backhoes and bulldozers, a telehandler
for heavy lifting, a roller for road work, and a large tractor-trailer to haul these
heavy pieces of equipment to and from the baseyard. We believe it's materially
important to those reviewing the permit application to know to what extent this
equipment is used offsite for non-farm related commercial activities vs. in direct
support of the ranch. Or in other words, which of the 2 uses - ranching or the
commercial heavy equipment operation - is the primary dominant use from at
least the financial perspective. Should it be established as we are asserting that
the commercial heavy equipment operation is responsible for more revenue than
the ranching operation then it diminishes the financial argument in favor of the
Special Permit.
The Planning Director did partially correct the use descriptions in his
recommendation report. However, this correction was not made before the
application was sent to reviewing agencies, the surrounding property owners,
and posted online for general public review. Nonetheless, the inaccurate use
description still persists to the present day including in the announcement for the
Windward Planning Commission’s Agenda for Special Meeting announcement
where the use remains being referred to as a “storage of commercial vehicles”.
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We continue to object to this phraseology that serves the interests of the
applicants over providing an accurate description of the actual use.
The conclusion is that those reviewing this application document or merely
seeing the public notices were unlikely to have a true and accurate picture of
proposed uses.
3. The Special Permit Application is Incomplete due to incomplete and
inaccurate description of access to the subject property.
Planning Commission Rule 6-4 of the Special Permit Practice and Procedure
Requires The Commission, through the Planning Department, shall neither
accept nor process an application which is incomplete as to form and content .
Section 6-3 of the same rules lists the required content including 6-3(b)(2) -
Description of the property in sufficient detail to determine its precise location .
The Special Permit Application provides several descriptions of the property
location and its access. The first description being paragraph 3B as follows:
The subject site, identified as TMK (3) 2-7-007:001, consists of 1,1419.17
acres of land and is zoned Agricultural 20-acres (A-20a) (Figure 3). The
parcel is located at the top of Indian Tree Road, approximately 0.7 miles
west of Hawaii Belt Road in Pāpaʻikou, South Hilo, Hawai‘i (Figure 1).
Access to the site is via Indian Tree Road, an existing paved private
roadway with access off Hawaii Belt Road.
While the TMK number and zoning are accurate, the parcel size is not (it should
be 1419.17 acres). But the main point is that the Indian Tree Road property
location and access description is inaccurate and unclear for the following
reasons:
1. The property is not best described as being located at the top of Indian
Tree Road but rather it is located in the middle of it as the road makes a
sharp turn just before the gated entrance to the subject property allowing
users to eventually connect with Kalaoa Camp Road - a road which also
connects to the Hawaii Belt Road. Both Indian Tree Road and Kalaoa
Camp Road are private roads over which the subject property has
easement access.
2. Indian Tree Road is not identified on Figure 1 of the Application, nor any
other maps shown in the Application with the exception of the site plan
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(Figure 2). However, it is shown as only heading in the eastward direction
when it fact the road continues southward towards Kalaoa Camp Road.
3. Figure 1 shows an inaccurate outline of the subject property. It includes
additional parcels not part of the subject property as noted by public
testifier Kawahara.
4. Portions of Indian Tree Road remain unpaved.
5. This access description also fails to mention that it, irrespective of which
road is actually used, passes over several other servient properties.
The next description of access to the subject property is found in Paragraph 3J of
the Application:
Access to the site is via Indian Tree Road, approximately 0.7 miles west of
Hawaii Belt Road. Indian Tree Road is a private paved roadway with a
50-foot right-of-way and pavement widths varying between 12 and 16 feet.
The road is generally well maintained, but does contain a few potholes.
The applicant is willing to repair the potholes if deemed necessary. The
applicant has legal easement access over the private roadway (Exhibit A).
This access description is clearer than the previous one in some ways but still
continues to add to the confusion by stating that Indian Tree Road is
approximately 0.7 miles west of Hawaii Belt Road . Whereas Indian Tree Road
itself connects directly to the Hawaii Belt Road. 0.7 miles west of the Hawaii Belt
Road is a description of the subject parcel location, it merely states that Indian
Tree Road will be used. But it is unclear if any other private roads over which the
subject parcel also claims to have legal access will also be used such as the
aforementioned Kalaoa Camp Road. In any case, the entire length of the road is
not paved as mentioned, the minimum width of the road that is paved is actually
closer to 10 feet, and despite it being located within a 50-foot wide road and
utility easement, it's basically only a single lane road - meaning that it is unable to
support bidirectional traffic without one vehicle having to pull over to allow
opposing traffic to pass. It cannot comfortably handle the additional traffic volume
resulting from the proposed large events. Nor can it handle the large heavy
vehicle traffic. Smaller vehicles are frequently forced to yield to the larger
vehicles and pullover wherever the shoulder is wide enough. In some rare
circumstances one large truck has been forced to reverse back down to the main
highway after encountering another large vehicle travelling in the opposite
direction.
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The final point of confusion over access comes from a document attached to the
application as Exhibit A. This document is supposed to prove that the applicant
has legal easement access over the private roadway. However, it does not show
Indian Tree Road at all. Nor is the benefitted property the subject property. A
closer examination at the document revealed that this easement grant is actually
for a different property (TMK 2-8-001-002) located near Kaupakuea Homestead
Road above Pepeekeo ~2.5 miles north of the subject property and Indian Tree
Road. This issue was reported to the Planning Department by the Intervenors on
Jan 17, 2025. While the Planning Department acknowledged the incorrect
easement document and was able to send us the correct document provided by
the Applicant, this error was never corrected in the official online public docket.
Cross examination during the Contest Case Hearing of the applicant's witness,
John Pipan, who prepared the application on behalf of the applicant was unable
to identify the location shown on the Exhibit A map.
The reason why we, as the Intervenors, are so focused on the access issue is
because of our familiarity with the complex patchwork of the various private road
easements located in our area. Many parcels in our area have multiple possible
routes they can use to access the public road. So knowing which combination of
easements the applicant intends to use between the subject property and the
public road will reveal which servient parcels will be burdened by the traffic and
where the traffic will ultimately be directed to when it does eventually reach a
public road such as the Hawaii Belt Road. We as the Intervenors can rely on our
personal knowledge from living along Indian Tree Road and from witnessing the
traffic from past unpermitted events that the applicant intends to Indian Tree
Road. But we cannot expect the other reviewers of the application such as the
public agencies who are not as familiar with the area as we are to be so
informed. We cannot make any assumptions over what information the reviewers
of the application relied upon when providing their feedback . We only know that
they have been provided with inaccurate and inconsistent information as to
location of the property and how it will be accessed both in present and possibly
in the future. We thus believe the standard of PC Rule 6-3(b)(2) has not been
met.
4. The Public was Not Properly Notified
The required public notification signs for the permit application were not placed
as per Planning Commission Rule 6-5 of the Special Permit Practice and
Procedure. On at least 2 separate occasions a sign was placed along the Hawaii
Belt Road near the entrance to Indian Tree Road. Following each placement, the
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sign was taken down almost immediately by unknown persons. The Planning
Department was notified of the disappearing signs. In any case, according to
Planning Commission Rule 6-5(c), The sign shall be posted at or near the
property boundary adjacent to a public road bordering the property and shall be
readable from said public road. And according to Rule 6-5 (b), The sign shall
remain posted until the application has been granted, denied, or withdrawn. The
applicant shall remove the sign promptly after such action. So wherever the
correct location of the sign is, it should still be posted. However, no sign has been
posted since ~Nov 2024. Public notice signs such as these are one of the few
ways to notify the general public as few people these days pay attention to the
official notices in the local newspapers. The only reason we as the intervenors
were notified (by mail) is because we specifically asked to be as we were the
original complainants for the previous use violations. But being more than 500
feet away from the subject parcel, as is also the case for many of neighbors, we
would not normally receive notices by mail.
The combination of incomplete use description, unclear description of location
and property access, and limited public notification - intentional or not - works in
the applicant's favor by limiting the number of potential intervenors and opposing
public testimony.
Summary:
Thus far, in our opinion, the preceding arguments at least amount to a “do over”
as they identify issues with the contest of the special permit application and the
process that was required to be followed in seeking its approval. The remaining
arguments will focus on why the special permit - even if the application was
complete and accurate and the correct procedures were followed - should not be
granted.
The preceding arguments also help to establish the actual uses and how the
subject parcel plans to provide access for those uses. These aspects are core to
the following arguments.
5. Transformation of Indian Tree Road into a de facto Public Road
We ask that approval not proceed without fully addressing the risks created when
a private easement such as Indian Tree Road is used, in practice, as public
infrastructure. A private easement is not a public road. Under Hawaiʻi law, a
private easement remains private property. Indian Tree Road is privately
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maintained, gated, and subject to private insurance and liability. The County does
not control its width, structural capacity, maintenance standards, or traffic
management. Yet the proposed uses would require this easement to function as
if it were a public road—supporting heavy vehicles, event traffic, and emergency
response—without any public authority to ensure safety or reliability.
The scale and intensity of access required for Falls on Fire—large gatherings,
peak traffic surges, and reliance by emergency responders— also effectively
transforms this private easement into a de facto public access route without
corresponding public governance or enforceable standards. This mismatch is the
core problem before the Planning Commission.
Unlike some other private roads located in some of the Island’s larger
subdivisions, there is no Home Owners Association (HOA) or other intermediate
overseeing authority responsible for the improvement and maintenance of the
roads. Nor is there any formal maintenance agreement between the landowners.
Therefore, it's the surrounding landowners over which these easements exist that
are directly burdened financially for maintenance and liability.
This functional mismatch shifts risk onto parties without corresponding authority:
servient landowners bear property tax, insurance, and maintenance exposure;
dominant easement users benefit from access without proportional responsibility;
and the County benefits from economic and cultural activity without assuming
control over the infrastructure that makes it possible. When no entity has
authority, accountability is deferred until after harm occurs—precisely what the
Special Permit process is designed to prevent.
Condition 6 of the Hearing Officer’s Report requires the applicant to make
specific improvements to the road. While we agree with the Hearings Officer that
improvements are needed on our road, such improvements cannot be made
unilaterally by the applicant and without the express written permission of the
servient landowners in accordance with the easement deeds.
The transformation of Indian Tree Road into a de facto public road therefore is an
unreasonable burden on the surrounding landowners and therefore violates
Special Permit Rule 6-3(b)(5) (B), The desired use shall not adversely affect the
surrounding properties .
6. Conflicting Uses: Permitted Agricultural Uses vs. Commercial, Industrial
Uses under Special Permit.
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The primary uses of Agricultural lands according to State Statutes and County
Codes is for the production of agricultural products such as fruits, vegetables,
and livestock. Market forces, land characteristics, and climate ultimately
determine what products are produced. In Hawaii, high production costs
generally favor specialized “boutique” products that can be marketed at higher
sales prices and that avoid the pricing pressures of the international commodity
markets. Coffee and Cacao (chocolate) are 2 such products that Hawaii has or is
gaining international recognition for. There is absolutely no possible way Hawaii
could compete in the international commodity market given the much higher local
production cost of these products unless the quality and marketing can command
a substantial premium. These and similar products must be grown in a relatively
clean environment, free of soil contamination and minimal pollution. They also
require open air processing. In the case of Cacao there is a multiday
fermentation followed by a drying process before the product is stable enough
that it can be stored or transported to market. Especially during the drying
process the Cacao beans are exposed to the outside environment in order to
take advantage of the natural sun and warm temperatures instead of energy
intensive mechanical commercial drying systems. The slower drying of the
natural process also helps to improve final product quality. However, it is
dependent on the surrounding air being relatively clean as any pollution such as
diesel exhausts from nearby truck traffic will be absorbed by the product. Hence
it is important any significant industrial or heavy traffic be located away from the
farm. Air pollution from farm equipment is already a concern. Additional heavy
truck traffic along Indian Tree Road arising from a commercial heavy equipment
baseyard presents any additional burden through its negative impact on the
product quality. It could, for example, change which products this area, including
our farm, is suitable for producing.
Additional permitted uses in agriculturally zoned lands include a farm dwelling.
This means that the farmer, whether they own or lease the land, is allowed to live
on the parcel. Many farms also have additional farm dwellings to house farm
workers. So rather than simply being places of work, many farms are where
people live and build communities. Non-conforming uses like those proposed in
the application have the potential to degrade the quality of life for the people
calling these places home. Noise from heavy traffic and multiday all-night
festivals and smoke from multiple campfires, outdoor fires, as well as burning of
effigies is generally not welcomed by the locals.
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These non-farm uses also make the lands less attractive to secondary farm uses
such as agrotourism and transient accommodations. Both of these activities
require additional permitting. However, they are becoming more components of a
viable Hawaii farm while also providing broader economic benefits to the state by
tying into Hawaii’s most valuable industry - that of course being tourism. It should
come as no surprise that most visitors do not want to stay at or even visit farms
that are directly exposed to non-farm activities such as non-farm heavy
equipment traffic and aforementioned impacts from all day and night festival
activities.
All of these impacts in effect diminish the agricultural potential and therefore
values of these properties. Diminished property values of course adversely affect
the surrounding property owners (Special Permit Rule 6-3(b)(5) (B)). However
these impacts also are contrary to the Special Permit Rule 6-3(b)(5) (A) Such
use shall not be contrary to the objectives sought to be accomplished by the
Land Use Law and Regulations. This is because the proposed project area use
of ~15 acres adversely impacts the existing permitted and potential future
agricultural uses of the surrounding properties - a far greater area than a mere 15
acres.
7. The Limits of Conditional Mitigation Without Enforceability
The County has attempted to address access impacts through conditions
requiring before-and-after photographs, post-event repairs, private traffic control,
private security, and voluntary compliance. These measures do not resolve the
underlying risks.
First, access road degradation is cumulative, not episodic. Daily use, heavy
loads, weather, and time contribute to progressive deterioration. A photographic
comparison tied to a single event cannot ensure that the road remains
structurally sound or passable for emergency access year after year. Repairing
visible surface damage does not restore load-bearing capacity, drainage, or
long-term safety.
Second, there is no governance mechanism to ensure ongoing compliance.
There is no road maintenance agreement, no homeowners’ association, and no
designated entity with authority to set standards, inspect conditions, or compel
timely repairs. Conditions relying entirely on self-reporting and voluntary
compliance lack practical effect.
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Third, the record reflects repeated permit violations over multiple years. This is
not raised to assign blame, but it is relevant to assessing whether compliance
can now be reasonably assured. Absent findings explaining why compliance is
likely going forward, reliance on private guards and self-documentation remains
speculative.
8. Past Record of the Falls on Fire Festival Organizer and the Ability to
Properly Manage Future Events
To date, the festival organizer has received 3 Notices of Violations for having
hosted unpermitted Falls on Fire events during the past 3 years (2023, 2024, and
2025). Each of these events were held in violation of verbal and written cease
and desist orders issued by the County not to hold these events without a permit.
This has resulted in a significant amount of unpaid fines that the applicant is
presently contesting through the appeal process.
For the 2023 and 2024 events the attendance was significantly greater than we
as property owners along the road were told to expect. The traffic was also
significantly higher than expected with traffic along our road at all hours of the
day and night. Having talked story with several of the attendees, the intervenors
were able to learn that many of them did not have tickets and were essentially
‘gate crashing” but were allowed to stay and participate in the event anyway.
During the 2024 event, the actual gate entrance into Indian Tree Road located
along the Hawaii Belt Road was damaged late at night by people seeking access
to the event. For a short while, traffic stuck behind the gate was observed to be
backing up onto the Hawaii Belt Road. Similarly, the noise and smoke from the
late night music and various burning activities respectively was more than
expected.
For 2025, the event was less publicized and we were not contacted by the
organizer beforehand to know what to expect. But still an estimated ~500
attendees were present. Both prior to, during, and after this event, our property
experienced significant damage - some of which appears to have been inflicted
intentionally by individuals who knew us to be the property owners opposing this
event. Consequently, several police reports have been filed and we are still
awaiting the outcome of their investigations and subsequent legal proceedings.
Also during the 2025 event, several attendees were observed to have gotten lost
as they attempted to navigate to the event resulting in some trespassing onto our
property and that of our neighbors. At least one other public testifier also reported
trespassers during prior year’s events. All of these incidents raise concerns over
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the event organizer’s ability to conduct these events in a way such that impacts
to the surrounding property owners and the burden placed upon public agencies
such as the police and fire departments is minimized.
On the topic of noise for the most recent 2025 event, the Applicant filed a
document containing some exceptions to the hearing officer’s report. One of
those exceptions requested modifications to Condition 11 to “ avoid restricting
music more stringently than needed to avoid adversely affecting surrounding
properties” . One of the arguments in favor of this modification was a quote from
my testimony during the contested case hearing in which I said “I was aware of
some noise, but it wasn’t too bothersome this year.” However, I also immediately
added as part of the same testimony that several of our neighbors, including one
located further away, reported the music volume as being more bothersome
compared to previous years. For the record, my dwelling is located ~1.2 miles
away. While some of these reports are subjective, it is likely that noise from the
event will vary year-to-year due multiple factors. My personal observation is that
our location on the slopes of Mauna Kea often feels like being inside an
amphitheater. Sound seems to travel very well here with a lot more local
amplitude variability than I am accustomed to. Unless one is an acoustical
engineer, it is probably difficult to predict which areas around the event site will
be most impacted. So unless we and our neighbors can be assured that the
sound volume from the event will fall below the thresholds allowed by HCC, we
fully support Condition 11.
Another correction that I would like to make for the record, concerns the reported
distance of the festival event to the nearest dwelling. Both the Application and the
Contested Case Hearings officer report that the nearest dwelling is 3500 feet to
the southeast. However, a simple check using Google Maps or similar satellite
mapping application shows that there are multiple dwellings (5-10) located nearer
to the event site - with the nearest home being only ~2200 feet away to the north.
The applicant/organizer’s statements during the Contested Case Hearing in
which he placed a minimum set of constraints upon the activities of the various
camp participants should also be a concern to everyone but especially to the
public agencies as it greatly increases the probability that their services will be
required during future events.
Finally, one public testifier, Candice Love, who claims to be affiliated with the
Burning Man Regional Leadership and has met with the applicant to do a site
survey in 2023 raised a broader set of similar concerns including liability,
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nuisance, fire safety, unsatisfactory emergency medical response, and
unqualified staff.
This willful and continuing disregard for law, the well-being of both the attendees
and the surrounding community should be considered by the Planning
Department before issuance of any permits. We have concerns that should a
permit for the event be issued, then it is highly unlikely the applicant will abide by
its conditions.
9. Unreasonable Public Agency Burdens
According to the Special Permit Rule Section 6-3(b)(5) (C), Such use shall not
unreasonably burden public agencies to provide roads and streets, sewers,
water, drainage, school improvements, and police and fire protection .
Given the relative unstructured and novel nature of the Falls on Fire event, the
kinds of activities that are likely to take place during the event, the
aforementioned record from past unpermitted events, and considering the
proposed Planning Director’s condition that both the Police and Fire agencies be
consulted prior to each event, it's highly probable that there will be significant
burden placed upon these agencies.
As to the Fire Risk, the event name itself offers a hint of what is to be expected -
“Falls on Fire”. We do know from past events and testimony from the applicant
that there will be various activities involving fire: Cooking, camp fires, ceremonial
fires including the burning of large wooden effigies, fire art and artistic
performances involving fire, etc. The applicant claims that they were told that the
wild fire risk is low because they are in a “Tropical Rainforest”. We dispute that
based on the applicant’s description of the site as well as from satellite imagery
and video/pictures showing the event is held in an area mostly surrounded by a
grassy field and not a tropical rainforest. While it's true that there are nearby wet
tropical rainforests nearby, the dominant non-native grassy vegetation found on
most properties in the area including the subject property, is highly flammable
under the right conditions. While the area does receive heavy rainfall estimated
to be between 140-180 inches per year depending on the elevation according to
the Rain Atlas of Hawaii. The most recent 10 years has seen a noticeable
reduction in annual rainfall according to NOAA. In fact this past year the nearest
most NOAA station, the Hilo Airport station, only recorded 59 inches of rain for all
of 2025 when it normally would expect to receive 135 inches per year. While this
area generally receives a generous amount of rainfall over the course of the year,
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it doesn’t tell the whole story as it applies to the wildfire risk. Other important
considerations include the distribution of the rainfall, the relative humidity, and
wind patterns. It is not usual for this area to experience a monsoonal style
weather pattern in which copious amounts of rain fall over a relatively short
period, triggering heavy and rapid growth of vegetation, that is then followed by a
prolonged dry period in which the vegetation dries out and becomes highly
flammable. A period of low humidity and westerly winds such as those produced
by the Kona winds can rapidly increase the fire danger. Certainly extra
precautions need to be followed during such exceptional fire risk conditions.
Should the event’s activities ignite a wildfire the reported 3000 gallon water
storage tank located ~1 mile away and the nearest fire station located some 10
miles away in Hilo are likely to pose some challenges to an early and effective
response. Furthermore, the long single lane access road is likely to be blocked
by those escaping the fire as the Fire agencies resources attempt to navigate the
same road into the incident area.
As to police resources. One only has to look at existing challenges that other
similar events located on the mainland have reported. Incidents relating to drug
and alcohol use and sexual assault appear to be the most common concerns.
We as intervenors share those concerns as well as our concerns over vandalism,
property damage, trespassing, property theft, and general nuisances based on
our experiences with the prior unpermitted events. Concerns for our general
safety have required us to invest in security systems within our property.
As to the medical and other emergency services: Both the 2023 and 2024 events
required at least one medical evacuation. Many reported activities involve some
significant risk. This includes construction of various theme camps, tall
structures, slacklines, activities involving the use of fire, aquatic activities in the
local stream and waterfalls, etc. are all examples of such activities. There is
therefore a high risk that local event staff will need to call upon outside public
resources either to assist in rescue or to evacuate injured participants.
As to public roads: A recent State field investigation (December 19, 2025) of
Highway 19 (Hawaii Belt Road) identified progressively worsening surface
distress, depressions, slope changes, and deep-seated failures extending below
the roadway base. Emergency mitigation measures are underway, and a
comprehensive geotechnical report is still in progress, with results expected later
this year. The affected highway segment spans mile markers 4 through 15. The
subject property and access easement lie at approximately mile marker 8,
squarely within the zone of concern around the junction with Indian Tree Road.
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As discussed in earlier testimony, the Indian Tree Road intersection with the
Hawaii Belt Road was already reported to be substandard and high risk in 2021 -
well before the new additional uses were proposed. The risk is especially acute
for visitors who are unfamiliar with this intersection such as the visitors who
would be expected to attend the Falls on Fire event and to traffic on the Hawaii
Belt Road itself with additional risks created by the heavy equipment baseyard
traffic due to a combination of high highway speeds (55MPH), a passing zone
located immediately in front of the intersection, limited visibility, non standard
intersection markings, and the lack of acceleration/deacceleration and dedicated
turning lanes.
10. Subject Lands being Unsuitable for Agriculture
Both the applicant and the Planning Director mention that the ~15 acres or so of
LSB Class C soils found in the project area is well suited for its existing
productive agricultural use. So the lack of suitability argument commonly used to
justify granting of the Special Permits on agricultural lands is not justified. In fact
the Class C productivity rating is as good as it gets in this area of the Hamakua
coast. This means that the land could arguably support even more productive
agriculture than its current limited use as a pasture. However, constraints
imposed by the event such as the area having to remain clear of permanent
vegetation such as orchards as well as the more limited area required by the
heavy equipment baseyard will prevent this land from achieving its full
agricultural potential. The applicant justifies this by stating that the subject area is
only a small percentage of the total parcel size. While it is true that ~15 acres
represents only ~1% of the total parcel area, this is not as insignificant as the
applicant’s would like one to believe. Firstly, most of the parcel does not consist
of Class C soils. Most are Class D or less. Secondly, 15 acres is still larger than
the median Hawaii farm size of ~5 acres. So when looked at from that
perspective, the area becomes more important as to loss of agricultural value.
Finally, one should not be granted extra use privileges simply by owning a large
piece of agricultural land. This argument appears contrary to the objectives of
HRS 205. This is especially true when also considering the negative impacts of
the heavy equipment baseyard on the other agricultural parcels surrounding the
access road. In our opinion, the only privilege the large large landowner should
have over the smaller farmer is the ability to grow more produce, have larger
pastures, and other permitted agricultural uses.
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11. Necessity vs. Convenience: Heavy Equipment Base Yard
A Special Permit may be granted only where the proposed use is reasonable and
necessary, compatible with surrounding uses, and consistent with the purpose of
agricultural zoning. That standard is not met here.
The operator already maintains a functioning base yard in a properly zoned
commercial/industrial district and conducts business island-wide from that
location. Locating an additional base yard on agricultural land serves logistical
convenience, not agricultural necessity. Where suitable facilities already exist,
authorizing the same industrial function on agricultural land cannot be found
“necessary” under HRS §205-6.
Furthermore, there are no proposed conditions in the permit binding the applicant
to the ranching tenant who also operates the baseyard or even to require for the
ranching activity to continue while the baseyard is in operation. This is
inconsistent with the applicant’s argument and the Planning Director’s
recommendation
Approving this use would allow an industrial business to operate under
agricultural zoning and agricultural tax classification, conferring a financial
advantage while shifting traffic, road degradation, liability, and emergency
reliance onto neighboring landowners and private infrastructure. This is not the
purpose of the Special Permit process.
12. Overuse of the Non-Farm Activity Economic Benefits Arguments
Various arguments what I would call "Starving Farmer” arguments: e.g. “ host
occasional special events to diversify their income stream to help offset the costs
of running a ranch. ” Being a farmer myself, I don’t want to diminish the many
financial challenges farmers face. But for this argument to carry any weight, it
needs to be combined with some additional information. For example, financial
disclosures showing the specific financial challenges of operating the ranch and
of this specific rancher as justification. There is a long list of counter arguments,
especially in this case, that would need to be considered:
1. By all reports the landowner is extremely wealthy. He owns over 15000
acres on this island alone.
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2. The subject property enjoys considerable tax benefits. While the market
value is over $6Million, the total taxable value is only $420000 - due to
agricultural dedicated uses. Making the annual tax bill less than $4000.
3. To be sure, property taxes are not the only financial burden of running a
ranch. However, ~1000 acres are leased to a rancher who presumably
pays rent. The rancher himself also appears to be operating a well
capitalized heavy equipment rental business out of the same property.
Meanwhile this rancher, at least in the past, was among the largest
recipients of federal funding in the State from the USDA.
4. There is an additional related argument presented later in the
recommendation report “ The proposed uses would address the preceding
by providing event guests an opportunity to enjoy an event venue on a
small portion of a working ranch while helping the rancher lessee diversify
their land uses and supplement their income .” The event here is the “Falls
on Fire” festival. Exactly how or why the rancher leasing the property will
have his income supplemented by this event is not discussed. Nor can I
think of any way that the rancher would realize financial gain from this
unrelated use. Again there appears to be an attempt to use the “Starving
Farmer” argument to justify a use which is no way connected to ranch
operation other than it being located on the same parcel.
5. Furthermore, because the permit applicant/permit holder is the property
owner and not the farmer leasing the land, such arguments claiming that
the permit would help the farmer should be reviewed with some
skepticism. There is nothing preventing termination of the farmer’s lease
once the permit is issued. It could be leased to a different farmer/rancher
or simply all farming activity could stop. There is nothing in the condition of
the permit that ensures that agricultural uses will remain on the property
after the permit is issued and I don’t believe there is any condition the
County could impose to preserve the productive agricultural activity while
the other uses remain. Of course, the owner would lose the rental income
and should also lose the property tax savings. But the choice is completely
up to them..
6. One doesn’t usually become a farmer for purely economic reasons or
because they have no other options. It’s more a lifestyle choice. This is
especially true for the smaller independent family farmer. So it should
come to no surprise that anything which threatens or impinges upon that
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lifestyle makes farming less desirable. Many of these Impingements
include the same uses one would not normally like to be exposed to in a
residential setting - including various industrial and commercial uses. So
there is a trade-off here: Quality lifestyle vs. the economic opportunity
argument. The problem is that when a single landowner makes a decision
to allow non-farm uses it often negatively impacts the quality of life for the
farmer leasing that parcel as well as for any surrounding farmers. Thus
this same counter argument applies when discussing the often cited
permit condition: “ The desired use shall not adversely affect the
surrounding properties ”.
In conclusion, I don’t see the rich landowner nor the rancher leasing the property
as deserving of additional land use benefits to offset cost to their existing
operations. Also, based on my understanding, there is no present way for the
County Real Property Tax Office to adjust their property tax assessments based
on actual use instead of the land classification. So any change of use made
through Special Permits has no impact on property taxes. This is unfair to other
landowners/business owners making equivalent uses on appropriately zoned
lands such as those which are zoned commercial or industrial. The County is
basically creating a tax incentive to locate commercial and industrial uses on
lower cost and lower taxed ag. lands. This robs the County of tax revenue while
allowing uses that are often contrary to the General and Community
Development Plans.
Conclusion and Request
Approval should not proceed without addressing three fundamental failures in the
current record:
1. The mismatch between the private legal status of the access easement
and its public functional use, particularly for emergency response and
evacuation.
2. The insufficiency and unenforceability of conditions that rely on voluntary
compliance, post-event documentation, and speculative future repairs
despite cumulative degradation and a documented history of violations.
3. The substantial adverse impacts on neighboring agricultural properties
arising from continuous traffic, dust, noise, and industrial access
associated with both Falls on Fire and the heavy equipment base yard.
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At a minimum, the findings must address cumulative and ongoing impacts,
evaluate compatibility with neighboring agricultural operations and development
potential, clarify responsibility for traffic control and long-term access impacts,
and acknowledge the disproportionate burden placed on servient landowners
without regulatory authority.
Addressing these issues now protects neighboring landowners, agricultural
viability, emergency responders, and the County itself. Ignoring them does not
eliminate risk or conflict—it merely defers them until after harm occurs.
Accordingly, denial is the only legally defensible outcome on the present record.
Going forward, we would like for the Planning Director to more rigorously
challenge the arguments that applicants have put forward to justify their permits.
We keep seeing the same or very similar arguments being used by different
applicants without explanation as to how they further the objectives of HRS 205
or how they broadly align with the objectives of the general or community
development plans. The public are being forced to blindly accept many
arguments despite the missing or questionable logic and unsubstantiated claims.
For our part, we would have liked to have the opportunity to ask both the
Applicant and the Planning Director many more questions beyond what was
allowed on the basis for having been granted standing as Intervenors in the
Contested Case proceedings. We therefore hope that the commission members
will be able to ask some of these questions when the this application is tabled
before the Planning Commission.
– End –