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HomeMy WebLinkAboutResponse to Defective Petition for Appeal (Patrick Ferreira) dated September 3, 2026.pdfFrom: mario51Catwc.com To: Plannino Board of Appeals Cc: Darrow, Jeffrey W.; noah.arodzinCabverizonwirless.com; Paulaolsontrust.com; LeeAnn Andrade; oatandco. inc%('cOyahoo.com Subject: Response to Defective Petition for Appeal (Patrick Ferreira) dated September 3, 2026 Date: Thursday, September 24, 2026 11:04:57 AM Attachments: ISSUE cell tower Papa"ikou 2026 10-3 appeal.pdf Plan DeptlettertoVerizonfinalapproval12aael.12df Plan DeptlettertoVerizonfinalapprovalpaae2.pdf FinalPlanApprovall2aael.12df FinalPlanApprovalpaae2.pdf FinalPlanApprovalpaae3.pdf Aloha e Bethany, My name is Margaret Johnson ( ). I am sending this email out on his behalf. Currently, Patrick Ferreira is without internet service and unable to receive and send out email correspondence. Please add me to communications being sent to him via email. He will continue to be the primary contact. I will be secondary/backup until he is back online. I will bring all email correspondence to him that I receive from you. As soon as his internet provider can complete the needed repairs to get back online, we will communicate that with all. Attached is his letter of response to the points indicated on the correspondence from you re the defective petition of appeal as well as other needed documentations. `ISSUE cell tower Papa'ikou 2026' is Mr. Ferreria's letter of response. The remaining 5 attachments are the documents we were able to secure to attach as requested. Please indicate receipt of this email and attachments. With the upcoming storm Nolo, I want to make sure you received all needed attachments potentially before I lose internet connection brought on by Nolo. To everyone copied to this email, we pray for our island's safety and we mahalo our essential county and state employees for their service. Sincerely, Margaret Johnson PO Box 155 Papa'ikou, Hawai'I 96781 September 22, 2026 Bethany Morrison Board of Appeals 101 Pauahi St. Hilo, Hawai'i 96720 Dear Ms. Morrison, Thank you for your September 3, 2026 letter re. "Defective Petition for Appeal". You were replying to my August 18, 2026 appeal of. the Final Plan Approval PL-PLA-2024-000347 for a telecommunication facility in Papa'ikou with applicant Verizon Wireless. This is my response to your letter and is also an amendment to my appeal. First, please remember that I am not opposing the tower, just its location so close to homes. The community and I have done everything right, trying to work with Verizon and Olson Trust, letting them know how severe the impacts will be to our homes and livelihoods, and suggesting alternate locations nearby. I hope Verizon will reconsider and locate the tower elsewhere. For now, I request that work be stopped on the tower until • 1 receive all the records that were requested before today's date, by me or on my behalf, from Planning • I am allowed 30 days after that to file an amended appeal, and • 1 receive a final decision on my appeal from the Board of Appeals. Your letter said my appeal did not include three items. Below are my responses re. each item. ITEM 1 "An appeal filed within the time limits prescribed by statute, ordinance, rule, or by order ofthe Board." The Board of Appeals Rules of Practice and Procedures say: 2- 1 Waiver or Suspension of Rules. For good cause shown, the Board may, by majority vote, waive or suspend any rule or rules of practice and procedure; provided that rules relating to jurisdictional matters shall not be waived or suspended by the Board. [underlines added] There are good causes Cause 1 it appears Verizon, Olson Trust, and Planning are not being required to follow the letter of the law The letter of the law is the Final Plan Approval. But that document cites an incorrect Use Permit. (see my response re. ITEM 2 B). If there was any attention paid to this, or any effort to correct it, there is no documentation in the limited number of records Planning has provided to me. (see my response re. Cause 2). Despite the flawed Use Permit, earth -moving equipment has worked on the site (shaking my house to the point where I asked the Building Department for a stop work order) and a layer of gravel about 20 feet square has been put down. Since Verizon, Olson Trust, and Planning are not being required to follow the letter of the law, it is unfair to require me to follow it. Cause 2 1 am hampered from writing an effective appeal because the Planning Department has not provided documents used as the basis for the Planning Director's decision, such as: • any communication between the applicant and Planning re. the incorrect Use Permit correspondence re. the application, to and from the applicant and Planning Department, with reviewing agencies such as Water Department, Public Works, Fire Department, Planning Department, and State Historic Preservation Division items cited, but not included, in the Final Plan Approval o Sheet L1.0 and condition 1 re. landscaping o Detailed background for Structural engineer report and Structural Certification Plan o Copy of Hawaii County Code 25-4-12 as it existed on the date of application o Air Space Report dated 1/12/22 o Development plan Cory Harden requested the documents on my behalf by e-mailing Planning Department on August 10, 2026, and going to Planning in person on August 31 and September 9 and 11, 2026. Some documents have been provided, but not all. On September 14, 2026, Cory also asked County Council staff for a copy of the County Code as it existed on the date of Verizon's application., but there is no response yet. Cause 3 It was impossible for me to comply with the appeal deadline, because neighbors were not notified that a decision was being considered, nor when it was finalized. This occurred despite recent, well -publicized County Council decisions and public comments that highlighted numerous concerns about telecommunications towers. • July 22, 2020 Resolution 678-20 passed by County Council; called for a pause on 5G small cell antennas • August 4, November 1, December 4 and 19, 2024; and February 4, 2025 Bill 194 considered by County Council and Windward and Leeward Planning Commissions; contained standards for telecommunications towers • June 4, 13, 18, 30 and July 7, 2025 Bill 24 considered and passed by County Council; set standards for telecommunications facilities, such as: Survivability of everything on towers with 100 mph winds Efforts to seek alternate locations Co -location for other providers on one tower Information to neighbors Fire protection measures Maintenance plan Visual impact analysis Greater setbacks 6-foot fence and anti -climbing device Light shielding 120 day deadline to remove tower after abandonment Protections for natural beauty The only public notice for the current project appears to have been this brief mention in the November 13, 2024 Hawai'i Tribune -Herald. PLAN APPROVAL ... 4.*Verizon Wireless/Edmond Olson Tr. (PL-PLA-2024-347) New 66' Monopalm/Telecomm Facility on 0.8640 acs., (por.), S. Hilo, TMK: 2-7-033:019, To see notices like this one, I would need to carefully read the Tribune -Herald every single day, which is unreasonably burdensome. The only reason I knew the tower was being built is that I noticed workers at the site and asked them what they were building. I also did not know that appeal was an option until about August 15, 2026. Cause 3 A tower was also proposed for the site several years ago but never built (PLA-17-001481). Verizon's historic consultant for that proposal, Nicole Okina of Bureau Veritas, interveiwed me, probably around November 2015, based on records for that approval. But I do not recall Ms. Okina mentioning the planned tower. So Verizon took advantage of my freely sharing my knowledge to futher their own interests and inflict impacts on me. This is not a "iurisdictional matter". According to a September 18, 2026 e-mail from Bethany Morrison to Cory Harden, the Deputy Corporation Counsel, Sylvia Wan, "confirmed that there is no definition for 'jurisdictional matters' in the BOA rules or elsewhere used for BOA' " However, Black's Law Dictionary, eleventh edition, defines "jurisdiction" as "1. A government's general power to exercise authority over all persons and things within its territory; esp., a state's power to create interests that will be recognized under common-law principles as valid in other states. <New Jersey's jurisdiction>. 2. A court's power to decide a case or issue a decree <the constitutional grant of federal -question jurisdiction>. —Also termed (in sense 2) competent jurisdiction; (in both senses) coram judice; adjudicatory jurisdiction. "Rules of jurisdiction in a sense speak from a position outside the court system and prescribe the authority of the courts within the system. They are to a large extent constitutional rules. The provisions of the U.S. Constitution specify the outer limits of subject -matter jurisdiction of the federal courts and authorize Congress, within these limits, to establish by statute the organization and jurisdiction of the federal courts. Thus, Article III of the Constitution defines the judicial power of the United States to include cases arising under federal law and cases between parties of diverse state citizenship as well as other categories. The U.S. Constitution, particularly the Due Process clause, also establishes limits on the jurisdiction of state courts. These due process limitations traditionally operate in two areas: jurisdiction of the subject matter and jurisdiction over persons. Within each state, the court system is established by state constitutional provisions or by a combination of such provisions and implementing legislation, which together define the authority of the various courts within the system" Fleming James Jr., Geoffrey C. Hazard Jr.+John Leubsdorf, Civil Procedure,S. 2.11, at 55 (5t"ed. 2001) 3. A geographic area within which political or judicial authority may be exercised. <the accused fled to another jurisdiction>. 4. A political orjudicial subdivision within such an area <otherjurisdictions have decided the issue differently>. So the 30-day rule does not appear to be a jurisdictional matter. ITEM 2 "A statement explaining: (A) how the decision being appealed violates the law; (B) or how the decision is clearly erroneous; or (C) how the decision is arbitrary or capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion" Both (A) and (B) are relevant. (A) Violation of law The tower conflicts with the Hamakua Community Development Plan. The tower is in the viewplanes of a number of homes. In the Hamakua CDP Planning Area, applications for Use Permits for wind energy facilities and telecommunications antennas/towers shall include viewshed and, as appropriate, line -of -sight analysis to demonstrate how the request does not cause substantial, adverse impact to the community's character, including open space, public views, and areas of natural and scenic beauty, and propose conditions to mitigate scenic impacts. (HCC 25-2-60 & 64) Hdmdkua Community Development Plan, p. 63, underlines added • The location has some historical value. Plan approval and related conditions shall consider ... archeological and historic sites, and historic buildings when assuring that ... natural and manmade features of community value are preserved. (HCC 25-2-77(a) & 76) Hdmdkua Community Development Plan, p. 63, underlines added The only historic property remaining within the project parcel is the 1920 agriculutural office. The building retains its historic integrity and appears to meet, at the local level, Criteria A and C for listing in the National Register of Historic Places. However, it is not currently listed and is not considered a significant property. January 21, 2016 letter from Nicole Okino, Bureau Veritas North America, 841 Bishop St., suite 1100, Honolulu, Hawai'i 96813, to Lucas Mead of Panning Department, from Final Plan Approval PLA-17- 001481, January 19, 2018, underlines added The tower conflicts with the 2005 County General Plan. NATURAL BEAUTY ...7.2 GOALS ... (b) Protect scenic vistas and view planes from becoming obstructed (h) Protect the views of areas endowed with natural beauty by carefully considering the effects of proposed construction during all land use reviews. (i) Do not allow incompatible construction in areas of natural beauty. 2005 General Plan, p. 7-3 PUBLIC UTILITIES ... 11.3 TELECOMMUNICATIONS 11.3.3 Standard (a) In the development and placement of telephone facilities, such as lines, telecommunications and cellular towers, poles, and substations, the design of the facilities shall consider the existing environment, and scenic view and vistas shall be considered and preserved where possible. 2005 General Plan, p. 11-13 LAND USE ... 14.3 COMMERCIAL DEVELOPMENT..14.3.3 Policies... (f) The development of commercial facilities should be designed to fit into the locale with minimal intrusion while providing the desired services. Appropriate infrastructure and design concerns shall be incorporated into the review of such developments. 2005 General Plan, p. 14-25 (B) Erroneous decision The decision is clearly erroneous, because the Final Plan Approval, Condition #4, says "Applicant to comply with all conditions stated in Use Permit 2022-000004 (PL-USE-2022-000004). The 2022 Permit • is for Renegade Towers, not the Verizon tower • is for 3331 Kaumana Drive, not the 27-256 Old Mamalahoa Highway cited in the Final Plan Approval. • requires a 180-foot tower. The Final Plan Approval requires 60 feet • requires a pine tree design. The drawings submitted for PL-PLA-2024-000347 show a palm tree And Final Plan Condition #5 appears to require access to Kaumana Drive, several miles from Papa'il<ou. Staff person Norren Kato told Cory Harden that actually no permit was required for the Papa'il<ou tower, when Cory visited Planning on September 11, 2026. It is unclear whether, or how, this was communicated to Verizon, what law or regulation was being followed, and what relevant records exist. ITEM 3 "A copy of the Director's decision being appealed" THIS IS ATTACHED. I appreciate the volunteer service of the Board of Appeals members and appreciate the consideration given to my appeal. Sincerely, Patrick Ferreira cc. Noah Grodzin, Real Estate Wireless Verizon Wireless 255 Kahelu Avenue Mililani, Hawai'I 96789 Paul Alston Olson Trust P.O. Box 446 Papa'ikou, Hawaii 96781 Jeff Darrow, Director Planning Department 101 Pauahi St. Hilo, Hawai'I 96720 C. Kimo Alameda, PH.D. Mayor William V. Brilhante Jr. Managing Director West Hawaii Office 74-5044 Ane Keohokalole Hwy Kailua-Kona, Hawaii 96740 Phone (808) 323-4770 Fax (808) 327-3563 December 16, 2024 County of Hawaii PLANNING DEPARTMENT Noah Grodzin, Real Estate Wireless Verizon Wireless 255 Kahelu Avenue Mililani, HI 96789 Email: noah.grodzin(a,verizonwireless.com Dear Noah: Jeffrey W. Darrow Acting Director Michelle S. Ahn Acting Deputy Director East Hawaii Office 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720 Phone (808) 961-8288 Fax (808) 961-8742 SUBJECT: Application: FINAL PLAN APPROVAL (PL-PLA-2024-000347) TELECOMMUNICATION FACILITY Applicant: VERIZON WIRELESS (NOAH GRODZIN) TMK: (3) 2-7-033:019, South Hilo, Hawaii We have reviewed the above -described plans for the proposed Telecommunication Facility pursuant to FINAL PLAN APPROVAL. Enclosed is a copy of the FINAL PLAN APPROVAL for your files. Please be aware of the conditions of approval that are part of this FINAL PLAN APPROVAL for the proposed project. These conditions listed on pages 2-3 of the FINAL PLAN APPROVAL document must be complied with prior to the operation of the new Telecommunication Facility. For your information, all accessible parking spaces shall comply with County, State, and Federal standards and requirements. Please find the most current requirements at the Disability and Communication Access Board website at http://health.hawaii.gov/dcab/parking, or visit our website for helpful information at hgps://www.planning.hawaiicounty.gov/resources/resources-references. Should you have any questions, please feel welcome to contact Larry Nakayama of the Planning Department at (808)961-8149 or via email at Lance akayamaahawaiicoun ov. Sincerely, e7Fre� ky Dgwow Je4reyW Darrow (Dec 21, 2024 09:47 HST) JEFFREY W. DARROW Acting Planning Director www.planning.hawaiicountV.gov Hawaii County is an Equal Opportunity Provider and Employer planning@hawaiicounty.gov Noah Grodzin Verizon Wireless PL-PLA-2024-000347 December 16, 2024 Page 2 LHN:ta \\coh0l\planning\public\Admin Permits Division\Plan Approvals\2\PL-PLA-2024-000347 Verizon Wireless TMK 270330190000 letter.doc\ Enclosure: PL-PLA-2024-000347 Form cc: danette(&martinpacific.com COUNTY OF HAWAI`I PLANNING DEPARTMENT FINAL PLAN APPROVAL PL-PLA-2024-000347 APPLICANT/AGENT: DATE APPROVED: Verizon Wireless / Danette Martin December 16, 2024 LOCATION: TAX MAP KEY: 27-256 Old Mamalahoa Hwy., Papaikou, HI (3) 2-7-033:019 PARCEL AREA/PROJECT AREA: ZONE: 37,635.84 sq, ft, (0.864Acres)/520 sq. ft. Commercial Village-10,000 sq. ft. (CV-10) PROPOSED USE: Telecommunication Facility As Shown on Plans Comments Front Yard: (Mamalahoa Highway) Tower: 170' -0" OK. 20' -0" Minimum required. Equipment Shelter: 120' -0" None required. Note: Section 15-4-40. (d) In CV and CG districts, where the building site is bounded by two or more streets, a minimum of one front yard shall be require. Its location shall be determined by taking into account the relationship and impact of the development to the adjoining streets. Front Yard: (Waipahi Road) Tower: 90' -0" OK. 14' -0" Minimum required. Equipment Shelter: 17' -0" 15' -0" Minimum required. Side Yard: (South) Tower: 30' -0" OK. 14' -0" Minimum required. Equipment Shelter: 18' -0" None Required (Abuts CV zoned District) Side Yard: (East) OK. Tower: 27' -0" 14' -0" Minimum required. Equipment Shelter: 18' -0" None Required (Abuts CV zoned District) Note: Section 25-4-12 (a) (1) Freestanding antennas and towers shall be setback from every five feet of antenna height. Hawai'i County is an equal opportunity provider and employer Danette Martin Final Plan Approval for TMK: (3) 2-7-0033:019 PL-PLA-2024-000347 December 16, 2024 As Shown on Plans Comments Height of Structure: Tower: 60' -0" Equipment Shelter: 14' -0" OK. 500 feet maximum allowed. 45 feet maximum allowed. Access to parking: Existing paved driveway off Waipahi Road. OK. Must comply with the requirements of the Department of Public Works Off -Street Parking: None shown. OK. None required; unmanned facility. Loading and Unloading Space: None shown. OK. None required; unmanned facility. Density Not applicable. OK Fencing and Walls: OK. Material: Chain Link Height: 6 feet. Location Perimeter of compound. Landscaping: See Sheet L1.0 OK. See condition 1. Others: Tax Clearance Structural Engineer Certification FAA Certification FCC Registration OK. OK. OK. OK. Per Real Property Tax Office Records. Structural Certification Plan (Sheet S 1). (Vectors Engineers -Wells L. Holmes - Licensed Professional Engineer) See Air Space Report dated 1/12/22. See Plan Approval Transmittal Letter. Site Drainage Plan: OK. Approved October 9, 2024. Special Management Area: No OK. Project is not within the County's Special Management Area (SMA). Related Planning Approvals: PLA-17-001481 OK. Issued on January 19, 2018 Pending Violations: None. OK. HRS-Chapter 343: Not applicable. OK. DLNR-SHPD Clearance: N/A OK. Airport Hazards: N/A OK. Outside of 5-mile radius. Danette Martin Final Plan Approval for TMK: (3) 2-7-0033:019 PL-PLA-2024-000347 December 16, 2024 Conditions of Approval: Prior to issuance of the Certificate of Occupancy, approved landscape planting and improvements shall be established per approved landscape plan and in a manner consistent with the Standards of Rule 17 Landscaping Requirements. Plants shall be maintained in a manner conducive to their health and growth. 2. Prior to approval of a Certificate of Occupancy (C.O.), the Planning Department may inspect the subject property to verify compliance with the approved plans. A C.O. shall not be approved where the buildings, site improvements, landscaping or use plans are found by the director to be inconsistent with the submittals for which the Final Plan Approval is issued. 3. No modification to the plans without prior written approval. All work shown on the development plan covered by this Final Plan Approval shall be completed. No additions, substitutions, or alterations to the site parking, landscaping, or building design plans covered by the Final Plan Approval, shall be made without prior written approval of such changes by the Planning Department. A written request for approval of such changes shall be submitted and include scaled plan sheets clearly specifying all proposed changes. Upon assessing the requested changes, the director may approve or deny the requested changes or require a new, complete application for Plan Approval where the director finds the changes to be substantial. 4. Applicant to comply with all conditions stated in Use Permit 2022-000004 (PL-USE-2022-000004). 5. The applicant shall install a driveway access apron in conformance with Chapter 22, County Streets, of the Hawaii County Code. Project Access to Kaumana Drive, including the provision of adequate sight distances, shall meet with the approval of the Department of Public Works — Engineering Division. 6. Applicant shall comply with all other applicable laws, rules, regulations and requirements of Hawaii County. 72 P y W. ayi-ow Jeffrey Darrow (Dec 21, 2024 09:47 HST) JEFFREY W. DARROW Acting Planning Director LHN: to \\coh01\planning\public\Admin Permits Division\Plan Approvals\2\PL-PLA-2024-000347 LLC TMK 270330190000 form.doc