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HomeMy WebLinkAbout2011-06-06 WINDWARD TRANSCRIPT ANDERSON WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JUNE 2, 2011 BRIAN ANDERSON’S REQUEST FOR DECLARATORY A regularly advertised hearing on RULING REGARDING SPECIAL PERMIT NO. 09-095 was called to order at 9:17 a.m. in the County of Hawai‘i, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with Chairman Zendo Kern presiding. COMMISSIONERS PRESENT: Zendo Kern, Dean Au, Takashi Domingo, Wallace Ishibashi, and Stephen Ono STAFF PRESENT: Julie Mecklenburg (Deputy Corporation Counsel), Phyllis Fujimoto (Staff Planner), and Jeff Darrow (Staff Planner). And eight people from the public in attendance APPLICANT: BRIAN ANDERSON REQUEST FOR DECLARATORY RULING REGARDING SPECIAL PERMIT NO. 09-095 Request for a Declaratory Ruling seeking clarification regarding Condition No. 6 (special events) of Special Permit No. 09-095, which allowed the establishment of a country market and occasional special events for non-profit agencies within an existing covered equestrian arena on approximately 2.3 acres of land situated within the State Land Use Agricultural District. The property is located along the north (makai) side of Highway 19 and east of the Waimea Country Club golf course near the 51- mile marker, Waikoekoe, Hamakua, Hawai'i, TMK: 4-7-007: 040. KERN: The first application is Brian Anderson’s request for a declaratory ruling regarding Special Permit No. 09-095. Before we do our staff presentation, I’m going to have our Corporation Counsel give a brief description of what that is exactly for us as Commissioners as a declaratory ruling; and then we’ll move on to the staff presentation by Jeff. So without further adieu, Julie? Thank you. MECKLENBURG: Thank you. Commissioners, and for the benefit of the public, I know this is kind of unusual territory for us to be in. We don’t often do declaratory rulings. So I just wanted to give you kind of the basics. Rule 3.1 of the Planning Commission’s Rules of Practice and Procedure states that the Commission can issue a declaratory order as to the applicability of any order of the Commission. The Rules require the petitioner to make a statement regarding the uncertainty involved, as well as a statement of his position or contention. The Commission then must either deny the petition or issue a declaratory order on the matters raised by the petitioner. Declaratory rulings are also covered by Section 91-8 of the Hawai‘i Revised Statutes. The law is clear that the declaratory ruling procedure is meant as a way to determine if an agency’s or a commission’s order applies to a factual situation raised by the petitioner. Okay, so it is not a means to review or reconsider a decision or an order made by the Commission in the past. A declaratory order cannot amend, supplement, expand on or narrow, or otherwise modify in any way an order made in the past. The petitioner would need to make an amendment request to attempt to effectuate any change like that. This is merely an interpretation of the order that was made in the past, in this case Special Permit No. 09-95, and the conditions imposed 1 EXHIBIT A by the Commission under that special permit as they apply to factual situations presented by the petitioner. Okay, so that’s kind of a summary of what the declaratory ruling is and is not. Any questions on that before we continue? KERN: Yes, I have a quick question. So in our decision-making processes it’s, one, of either granting the petitioner what they’re asking for or, two, on the contrary to that, would be to deny that, and then that would be the end of -? MECKLENBURG: Right, you can deny the petition outright or you can issue a declaratory order, making a decision on the issues raised. KERN: Got it. Thank you. Any other questions? Seeing none, thank you, Julie. Jeff, staff presentation. DARROW: Thank you, Mr. Chairman. KERN: Thank you. DARROW: Good morning, Members of the Planning Commission. I hope all is well today. As mentioned, our first item on the agenda is a request for a declaratory ruling. And what I'll do is I'll just give a brief history, background, and share the location of the original application. The original application was submitted by Gregory Mooers who was representing Mr. Anderson back in 2009. The special permit application number was 09-95. The location of the application or the subject property is within the Hamakua District of the Big Island. More specifically we're looking at Highway 19 running through the middle of the map. This is the Lakeland Subdivision just coming into Waimea. So this is just on the east side of Waimea within the Hamakua District. The subject property is identified with the black outline. The zoning is Agricultural 40 acres. At the same time that the application was filed we had a request for a petition of standing in a contested case hearing by Joanne Frederick who resides on this particular property near the subject application. She was granted standing and then subsequently after discussions with the applicant withdrew the contested case petition. This is an aerial photo, again, showing the subject property in this area and then the location of the Frederick’s property. This is a site plan showing the highway on the left side of the map and the covered arena, and again the area of the Frederick’s property. Here are some site photos. This is looking from the Highway towards the equestrian center. This is looking from the equestrian center towards the Highway. And this is the Highway looking towards the East, and towards the West. And this is the entrance to the Waimea Country Club which is just west of the subject property. The special permit request was to allow the operation of a weekly country market and occasional special events for nonprofit agencies within an existing covered equestrian arena. This was approved by the Planning Commission with conditions on April 1, 2010. Condition 6 stated “Special events are intended for community gatherings, meetings or events with the use or proceeds benefiting a charity, nonprofit organization, social or political fund-raiser or a worthwhile community case. No concerts or tourism related activities are permitted.” The request for a declaratory ruling was, is within the background information with a letter dated March 11, 2011 from Brian Anderson. And within that request he asks, he seeks assistance of the Planning Commission to clarify Condition No. 6, that a concert be defined as a music event that is promoted by a company, group, or individual that does not donate a minimum of 20% of gate proceeds to a 501(C)(3) Hawai‘i State nonprofit or local family in need. If 20% or more is donated to a 2 EXHIBIT A 501(C)(3) Hawai‘i nonprofit or local family in need, then the event is considered a fund-raiser not a concert. Number two, tourist related activities be defined as a regularly scheduled function, show, example, weekly Polynesian luau show for example, marketed solely for the visitor industry. And then lastly he had requested clarification regarding the term weekend. And there is a definition that is supplied with that. With that that concludes our presentation. KERN: Any questions for staff? I have a quick question. What is the general description of the weekend in the past? DARROW: I don't think, as far as I can recall, that issue ever coming up. So this would be something that I would defer to our Planning Director. KERN: Thanks, Jeff. Do you have anything you want to add to that? LEITHEAD TODD: No. I think you probably need to discuss among yourselves. And, you know, the permit does say no concerts. And so the question is what is the definition of a concert? The particular event in question that had become an issue, it appeared that the main attraction was the band that was going to play. And so there was concern that that was a concert. Cause I think when we had the hearing we had discussions that you could have an event and you could have musicians at the event so long as they weren’t essentially the event. And so it's like you can have a, like they talked about political fund-raisers. You know, you have a political fund-raiser and you've got some music added. I don’t think that we thought that that was necessarily a concert per se. But I have seen political fund- raisers where the main event is coming to hear the music and they are selling it as a, basically as a musical concert in order to raise money. So rather than end up in a situation where we issue notices of violations, have those violations appealed to Board of Appeals and have Board of Appeals interpreting what the permit says, we thought it was better for the Planning Commission that issued the permit to give us a declaratory ruling, and to the applicant, as to what it means so that there is more clarity. KERN: Thanks, BJ. And on the weekend issue is there, in the past when there were permits issued saying that, you know, specifically on the weekend, is there a –? LEITHEAD TODD: I think you can take what is commonly understood concept of weekends; and it is usually from, I would say, you know, Friday, Saturday, Sunday -. KERN: Okay. LEITHEAD TODD: You know, where close of work on Friday till the evening on Sunday would be what people would consider a weekend. And that's just my common sense application. But you folks can discuss that because it is ultimately your determination. KERN: Thank you, Madam. Director. All right, any other questions? Seeing none, could I get the applicant or their representative to come forward. ANDERSON: Good morning. KERN: Good morning. I'll get you sworn in real quick. Would you please raise your right hand. Do you affirm to tell the truth today before the Windward Planning Commission? ANDERSON: Yes. KERN: Very good. Before you begin, name and district. ANDERSON: Brian Anderson. This property is in Hamakua, on the border of Kamuela. 3 EXHIBIT A KERN: You may begin. Thanks. ANDERSON: I just, thank you very much for hearing this. It’s just I think we’re in an ambiguous situation. I don’t want to be at odds with the Planning Department. And Friday night came into question as not being part of the weekend; and I went to the, you know, Merriam’s Dictionary, texted, had emails to go back and forth, and determined that Friday night was part of the weekend. Concerts versus fund-raisers is a tough one; and that’s where I'm asking for your help and clarification. Fund-raising today is a very tough process. Money is very tight. The Kumu Na Lio is a 501(C)(3). I know them well. I'm not part of the organization. My wife sits on the board. But it costs over $4000 in almost a year to establish the 501(C)(3). In February they were approached, there was a country group from Texas that won nine Emmys and they wanted to play at the arena at our market. We had a steak dinner, 20 to 50 vendors, mechanical bucking machine, we had a hoe down. It's kind of a community thing. And the condition was that the producer, Lazarus (sic) I believe it was, would produce the event for Kumu Na Lio; and that created some stir. There’s a poster here and I think you see one guitar and a fiddle. Whether that’s a concert, I don’t know; and that’s what I’m here for your clarification. Let me just put something in perspective. You saw the aerial. Ms. Fredericks has called the cops on every function we've done, every birthday, every graduation party, every hoe down. And sometimes with an aerial it's hard to understand or to see the perspective. As we sit here her house is at the Civic Auditorium. So it is somewhat of a distance, little over a half a mile. On one occasion, our last hoe down, we had the Silver Spurs from Maui. And when we have a function, a market, a hoe down, if we can piggyback with a group coming to the island, that is normally what dictates it. Cause it is very expensive to bring a group over specifically for one function. So the Silver Spurs called us, and they were playing Saturday in Kohala, so they said we can do a Friday night at your place. It worked out well. The Honokaa rodeo was going on, etc. The police came, four officers from the Hamakua district, one sergeant and three officers. We escorted them down to the subject property, Ms. Frederick’s, we sat at her gate for 10 minutes, and they timed it. And in two occasions one of the officers said I think I heard a base note, and two other officers said I don't think I heard it. So, I mean, that is the volume of music we are talking being the disturbance. So I don't know what to say in that regard, cause I know she is filing letters. We have one neighbor who is a quarter of a mile away, Monty Miranda, he is a good friend. He has never had any objection to any of the uses we had. So I just want to, in passing I don't want to make light of her objections but I just want to clarify her physical distance from us. And then as you saw there are three rows of 80-foot eucalyptus trees between us as well. So we've got a pretty good sound buffer. As I say four officers and myself sat at her gate for ten minutes during the loudest concert we've had, concert, and it was negligible. One officer suggested I file a harassment. And I said, you know, two wrongs don't make a right. I hope we don't have to go that route. So what I am trying to do is clarify today fund-raiser versus concert. I don't know the answer. I suggested some language. But for a 501(C)(3), and with all due respect Mr. Chairman or Ms. Planning Director, I think more people come to listen to music than the politician most times. I have been in the political fund-raising business for 20 years with my dad and the music draws them much more than the politician. To get people out a big name, Kapena, or something really is necessary. And a 501(C)(3) in this economy is going to use big name music to bring them out. Now the steak dinner, the bucking machine, the vendors, all benefit from the crowd. To get the crowd out I believe music is a component. What the ratio of proceeds the 501(C)(3) is is your discretion, or if it is considered even possible to bring in music for a fund-raiser. I'm not sure how else to raise funds in this economy. Any questions? 4 EXHIBIT A KERN: Any questions for the applicant? DOMINGO: Yes. KERN: Commissioner Domingo. DOMINGO: Mr. Anderson, according to this submittal any group or individuals who play and does not donate a minimum of 20% of the gate proceeds to a 501(C)(3), that is considered to be a fund- raiser, I mean, a concert. But then if a party comes in and they donate a more, 20% or more to a 501(C)(3) or some local worthwhile event, then it will be a fund-raiser. That’s the difference I see. ANDERSON: That’s the suggestion. DOMINGO: Okay. KERN: Commissioner Ono? ONO: Pardon my ignorance on this, but when there is a nonprofit activity, in my mind nonprofit is nonprofit. So is there a gain on your part as the promoter or whatever it is in terms of using your facility? I mean is there an income for you? ANDERSON: We rent the facility for $400 a night. ONO: I see. And that’s it? ANDERSON: That’s it. ONO: So the vendors keep whatever? They donate their 20 percent and they keep the difference? ANDERSON: In the market it’s a little different cause in the markets we put the market on and they pay $25 a booth. So depending on how many vendors are there, we don’t get $400 rental, we just get what the rental stalls pay for the market. The problems with the markets are, you know, two years when we started this quest it wasn't a unique idea but there was more exclusivity to doing markets. Now, I mean, there's a farmers market in just about every community. So we have had a hard time getting people out to the farmers market. We used to hold it once a month, and we had a hard time, or twice a month, and then we went to once a month to try and get people out. And then we found to get them out we really needed more of a draw; and that’s when we started the hoe downs, to get people out to come support the vendors. ONO: So when this group from Maui comes over, as an example, they charge the ticket, I suppose, to enter your facility? ANDERSON: In that case, I think the 501(C)(3), Kumu Na Lio handled the, they hired the music, they ran, they did the production. They rented it from us. ONO: So just for my clarification then, the 20 percent is the minimum contribution/donation to the nonprofit group and that’s it, the rest of the money is profit? ANDERSON: Well, it depends on if there’s an outside producer. I’m trying to just quantify something so -. Mr. Arai is trying to be very conscientious on the planning. I’m trying to quantify something, and I’m looking for your suggestion on how to quantify what a concert is versus a fund- raiser. I came up with 20 percent, just trying to quantify it. If there’s a better, you know, I put this out to you to help clarify these terms. So we don’t, I don’t want to get into a constant discussion with the 5 EXHIBIT A Planning Department. I’m trying to make their job easier and my understanding easier what a concert is versus a fund-raiser. I’m open to suggestions. KERN: Any other questions? Commissioner Ishibashi. ISHIBASHI: Thank you. On your 501(C)(3) entities, how many concerts or how many fund-raisers have you had under this 501(C)(3) and how many groups was that? ANDERSON: Two. ISHIBASHI: Two. So that’s all? Since you had this permit you only had two 501(C)(3) fund-raisers? ANDERSON: Yes. ISHIBASHI: Two, thank you. KERN: Any other questions? Could you do us a favor and clarify on your tourism- related activities, on that language, or clarification. ANDERSON: Again I tried to come up with some language just to help make an issue black-and- white. I am open for suggestions. I just don't want to put the Planning Department and myself at odds on every event what it is. It is not fruitful of their time or mine. This was a suggestion on, to me a tourist activity is, you know, a Polynesian luau show or something regularly held. KERN: Do you have an example of a, of an issue you ran into with that particular one? ANDERSON: No, no. KERN: No, okay. ANDERSON: While I’m here I figured I just do the three, three things at once. KERN: Okay, very good. Any other questions? Seeing none, thank you very much. ANDERSON: Thank you. KERN: Mr. Anderson, you may have a seat. We do have one person from the public to testify. Calling a David Kaapu. You may have a seat. Are you just the only one speaking today? KAAPU: Yes. KERN: Okay, can you raise your right hands for me. Do you swear to tell the truth today before the Windward Planning Commission? KAAPU: I do. KERN: Okay, very good. KAAPU: My name is David Kaapu, and I’m an attorney from Kona and I represent Joanne Frederick today who is present. And if you have questions for her, you may want to swear her in. KERN: Let’s do that, just to get it over with. 6 EXHIBIT A KAAPU: Okay KERN: Will you please raise your right hand. Do you swear to tell the truth today before the Windward Planning Commission? FREDERICK: Yes. KERN: Very good. All right, you may begin. KAAPU: Good morning. The first issue that I wanted to raise is whether or not the declaratory ruling action is properly before this Commission. As Corporation Counsel mentioned, Rule 3 requires that a petition of an interested party, that on petition of an interested party this Commission may issue a declaratory order as to the applicability of statutory provision, ordinance, or any rule or order of the Commission. So it requires a petition. And under Rule 3 a petition is, has certain definitions. There are five definitions. The letter that was submitted to the Planning Commission as a petition does not contain one of the requirements, which is a memorandum of authorities containing a full discussion of reasons and legal authorities in support of such position or content. And the reason that that, and that is under 3-1(b)(5). The reason that is important for the Commission is that when an interested person brings a petition, they bring the basis for that petition, the legal basis for it. So that if anyone is challenging them, they can challenge it on a legal basis. What has been brought to you is just, you know, what does this mean? There has been no basis for you. And you are being asked to “clarify a situation.” But that is supposed be clarified by the interested person, not by you; and they are supposed to give you supporting reasons for doing that. That hasn't been done in this case. So the th March 11 letter with respect to defining the terms concert and activities related to tourism is deficient; and, as such, this matter is not properly before this Commission for public hearing. Second, assuming for the sake of argument that the petition had been properly filed, the petition would still be improper because, in effect, what it is trying to do is seek to amend the special permit, the conditions of the special permit. And what a declaratory ruling is supposed to do is to determine the applicability of a rule to a particular factual situation, as Ms. Mecklenburg had earlier stated. There is some assistance to the Planning Commission because there is a Hawai‘i Supreme Court case, the name is Card vs the Zoning Board of Honolulu, 114 Hawai‘i 184. It is a 2007 case, in which the Hawai‘i Supreme Court examined the standard of review for administrative agency’s decisions. And it says it has two parts. The first part is did the legislature empower the agency with discretion to make a particular determination; and then, two, if the agency's determination was within its realm of discretion, did the agency then abuse that discretion? So in this case this Commission can only consider the applicability of its prior order to a factual situation raised by Mr. Anderson. Under HRS 91-8, declaratory rulings are not intended to allow a review of a prior agency decision for which other th means of review are available. For example, the March 11 letter does not seek to determine the applicability of a rule to a factual situation raised by Mr. Anderson, but rather seeks to change the specific condition, which states, “No concerts or tourism related activities are permitted,” through what is termed a clarification. Under the Card case, this is not a permissible action. The Card case also stated that if there is other relief available then that should be sought by the petitioner. Mr. Anderson has the ability under HRS 91-6 to petition this same body to amend the special permit. And under HRS 91-7 he has the ability to seek a judicial declaration as to whether this agency’s prior ruling on the permit is valid. My client’s position is that she had withdrawn a contested case when this special permit was granted on the basis that they had reached an agreement on the conditions. One of those conditions, which is most important to her, was that no concerts would be permitted. The reason for no concerts being permitted had nothing to do with how much money was going to a 501(C)(3), how much money was being donated to a charity, or to a community cause. The reason for no concerts was because there is an agreement that the concerts had an impact on her property, and she's next door. From the 7 EXHIBIT A documents that she submitted you will see that she submitted to you three separate police reports. And if you read those police reports in the bottom they explain, unlike what was testified here to you before, that the noise was loud, they asked people to turn it down, to stop, it was way past the 10 o'clock deadline. People complied with that but it was a violation. There are no, and she submitted, and if you ask her she will tell you that she requested and submitted every police report to you where she made a complaint. So there are a total of four. In one of the police reports you will see that to the policeman who was there it appeared that there was a concert going on. And so they asked them to stop. So my client’s position is no concerts mean no concerts. If you read the background report from the Planning Director you can see that there was a request to amend the special permit, but that that was declined by the Planning Director apparently until such time as the petitioner could clarify with specificity what he meant by certain items. And the Planning Director can correct me if I am wrong, but it seems like the definitions were too vague to be acted on. And I think, it seems to me, anyway, that the Planning Department was concerned that if the definitions are too vague, it is going to be very difficult to enforce them. In essence what Mr. Anderson is requesting is that new uses be added to the special permit. And rather than submit for an amendment to the special permit by detailing all of the functions that he wants to host with requisite specific information, a declaratory ruling was chosen. And so as a result my client is requesting that, one, the Planning Commission refrain from making a declaratory ruling based on that procedural issue raised that the request or petition is deficient. And if the Commission chooses to issue a declaratory ruling, my client requests that the Commissioners ruling be that the condition, the applicability of the condition no concerts mean no concerts. You can rule no concerts mean that. So with that, if you have any questions, I am happy to answer them; and my client is here. Thank you. KERN: Any questions? Seeing none, thank you very much. KAAPU: Thank you. KERN: Can I get a motion for executive session? It would be much appreciated. DOMINGO: Mr. Chairman? KERN: Commissioner Domingo DOMINGO: I move that this Commission go into executive session. ONO: Second. KERN: All those in favor aye? COMMISSIONERS: Aye. All those opposed? Seeing none, we’re going to be in executive session in a minute. Would you all please leave the building for just a few minutes. Thank you very much. EXECUTIVE SESSION – The Commission went into executive session at 9:48 a.m. The Commission returned to regular session at 10:04 a.m. by a motion made by Commissioner Ishibashi, seconded by Commissioner Au, and unanimously carried a voice vote. KERN: The meeting will come back to order. Okay, so I think we need to deal with one issue as far as either chunking these all together or doing them individually one by one. It would be my opinion that we bifurcate them to deal with each declaratory ruling on their own, so to speak, if that’s the direction that we’re going. Do we need a motion to do that, to separate the, if we’re going to talk about them, separate into each - concert, weekend, or -? 8 EXHIBIT A MECKLENBURG: No. KERN: No. So we don’t need a motion to “bifurcate them,” but we kind of do need a motion to open up some discussion. Any comments from any Commissioners? I think an easier one to tackle would be the weekend declaratory ruling. If somebody wants to make a motion based on that, we could actually open up some discussion and have some closure. Commissioner Domingo. DOMINGO: Thank you. I think that we can begin from Friday afternoon. And not making a joke out of it, but what’s that song, Kimo Kahoano, Aloha Friday. He puts it so well that the weekend begins after pau work on Friday afternoon when everybody just start to relax and start buying their beers and all the pupus and make plans for the weekend, and that’s it until Monday, go back work. So I think we’re of that opinion where the weekend begins on Friday afternoon after everybody, the responsibilities and all the work is taken care of for the week. MECKLENBURG: Commissioner, do you want to make a motion before we go into discussion, so your motion that -? DOMINGO: Yes. MECKLEBURG: Declaratory ruling. DOMINGO: I would move that we declare that the weekend begins from Friday afternoon. ISHIBASHI: Second. KERN: Okay, motion has been made and seconded. Discussion. Any discussion? ONO: You need a second? KERN: We got a second. So the motion is out there, it has been seconded. Now is the time to discuss if there’s any conversation on that matter. ONO: I -. KERN: Commissioner Ono. ONO: Yes. Question on that, the time. Is that 12 noon? How will you define Friday afternoon? KERN: Commissioner Domingo. DOMINGO: I’m not actually looking for a specific time. Unless we have to come with a specific time, then I guess Friday noon when all your work has been done, you just go home and you meet with your family, you go shopping or guys go to the store buy beer and pupu, and just relax for the weekend, go into the weekend and -. ONO: Yeah, I guess I’m looking at time because by definition 12 noon is, 12 o’clock is noon already as far as I’m concerned. So, you know, if you’re going to look at defining the weekend beginning noon I just want to be more, more clarity in -. DOMINGO: Okay, I’ll say, in this regard then I say it starts from about 4. ONO: Whatever, I just -. 9 EXHIBIT A KERN: Okay. I think it might make sense to get the applicant up here to see how the time constraint is challenging for them at that time. Would you please come forward, Mr. Anderson. Do you want to make any comment on that time? ANDERSON: Four is fine. Again, I’m not here to change anything, just clarity, just so there are no ambiguous things. Yeah, four is fine. KERN: Okay, thank you. So that’s your motion, Taka, 4 o’clock? DOMINGO: Yes. KERN: Is that seconded? ISHIBASHI: Yes, seconded. KERN: You may have a seat, thanks. Any other discussion? Seeing none, Jeff. DARROW: Thank you, Mr. Chairman. The motion before us is to clarify that the weekend begins Friday at 4 p.m. With that I’ll take the roll call. Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Ishibashi? ISHIBASHI: Aye. DARROW: Commissioner Au? AU: Aye. DARROW: Commissioner Ono? ONO: Aye. DARROW: And Mr. Chairman? KERN: Aye. DARROW: The motion passes five to zero. KERN: Okay, very good. So we can either choose to work on the concert issue or the tourism related activity issue. DOMINGO: I think it was made clear by the representative of the applicant that it wouldn’t involve tourism directed kind of activities. And that comment was made because of the concern of the Commission at that time with regards to activities that might generate the noise. And I think if you recall at the meeting the discussions and concerns at the meeting were centered around the noise factor. And I think looking at the statements by the representative of the applicant is something that I’m looking to. So I don’t think it covers tourism activities. KERN: Do you want to make a motion? 10 EXHIBIT A DOMINGO: Yes. I would so move that the functions will not include tourism activities. KERN: Tourism related activities? DOMINGO: Yes, tourism related activities. KERN: Is there a second? MECKLENBURG: I think the declaratory ruling or the request by the petitioner is to clarify what tourism related activities means, for purposes of that Condition No. 6. KERN: Is there a clear definition of that from staff or the Planning Director? LEITHEAD TODD: My recollection is that during the discussion on the special permit there was some discussion that something like a, you know, luau, you know, with a Polynesian show that’s regularly scheduled would be tourism related. You know, cause the intent was to have special occasional events; and it was, I think, geared more towards, you know, local community events as opposed to something where – if you think of, I think Kahua Ranch has these events that they bus tourists in from the hotels for, you know, and it’s marketed to the hotels. And I think the intent was that this was supposed to be community based as opposed to being marketed towards the tourists. But it becomes very difficult to define, you know. And so I think you have to look almost at the nature of the event. But the restriction on tourism related events is already in the special permit, if I recall correctly. KERN: Yeah, it is. MECKLENBURG: And I, again, would advise the Commissioners that what a declaratory ruling can do is only to advise as to the applicability of that provision to a certain factual circumstance. And in this case we don’t really have a particular factual circumstance. It sounds like, you know, one of the things that was raised was a luau. But I’m not sure that’s the only circumstance in which that would, this provision would be implicated. So unless Commissioners have a strong feeling about that, I don’t know -. KERN: Well, I have something to add too. Basing off the Director, what she was saying is, I mean I think there is a big marketing element in the tourism related activities. If you’re going to country market and a tourist happens to stop by you can’t say, brah, leave the market cause you’re a tourist. But if it’s marketed specifically to hotels or to, you know, tour busses showing up, that might be a way to define it or clarify it. ONO: I need some clarification. It’s, to me the activity that is being offered is a definition of a tourist activity. For example, if you have a farm land and you’re just planting ginger, that’s not a tourist activity. But if it draws in, like if I go to Waimea and I want to ride a horse, as far as I’m concerned because of that activity I’m a tourist even if I’m a resident of the county. So whatever activity is being proposed, like he runs an equestrian, I’m assuming that I could go there and say I want to ride a horse for an hour or so, whatever. The activity is what draws me to that location. And for us to define tourist related activities by the busload is, that’s just the individuals coming there. Why are we denying that group or that busload of people to participate in an activity that I myself going there can do? I have a difficult time restricting in my mind, restricting someone from participating in an activity that I am privileged to participate in because I am not labeled a tourist. That really, I am hung up on that. I hope I am getting my thoughts across here, but –. You know, if you have a factory that produces aloha garments and by the busloads people come in, is that a tourist activity? However, as an 11 EXHIBIT A individual and I have a sedan and I go there with my wife and myself, am I privileged to participate in touring that facility because there are only two of us and I’m a resident of the state? I do suspect that we are, I hate to use this word, but discriminating a group of people from participating in an activity that should be offered to everybody? KERN: Right. And that is why I say maybe it is in a marketing element if there is going to be some sort of -. You know what I mean? Cause if you just say, hey, we have a garment factory here, and people are welcome to come in there, and whether a tour bus comes in there and does it or you come in there with your family and go there, well, that's cool. Now if you have brochures at every single hotel and you’re primarily getting 99% of your business, and that is a major part of your business to get those tourists in there to support your business, that element of that to me becomes a tourist related activity. ONO: But do we deny the activity because it is going to be defined as a tourist activity? One of the things I suspect, for example, I just saw a video of a salt processing program in Kauai where they do the red salt making. I, for an individual, I sure would like to see that because it is a cultural experience for me to learn that. But if I come with a busload, am I going to be denied that experience because I am living in a hotel and that happens to be there and it’s for me convenient to go there? KERN: Well, I almost think we’ve got to almost flip because right now it says there are no tourist related activities, period. That’s what the condition states right now, that there are no tourism-related activities defined or allowed. MECKLENBURG: Right. And it doesn’t say that tourists shall not be permitted to attend activities. KERN: They can come to a hoe down or whatever, you know, if there’s a country market. MECKLENBURG: Slightly different, but I think the distinction is between a community sort of activity like a farmers market or a hoe down that attracts a lot of people within the community versus a tourist related activity such as a luau. These are the examples that have been given today, where brochures are handed out to hotel guests along, you know, the Kohala Coast or somewhere and then those tourists are the ones who want to come see the luau; and it is primarily directed to them. I think that's the clarification that is being asked for. And it seems from the discussion here today that the petitioner may be correct that there is some ambiguity here that could be resolved. KERN: Anybody has any brilliant wording to clarify that condition? Commissioner Domingo? DOMINGO: Let me try again. I think an event specifically organized to bring tourists together with organized kind of activities that would address what tourists usually would like to be involved in and would like to see when they come to Hawai‘i. Like for instance you provide for them a luau, yeah, or you provide for them other activities like for instance let's say the Polynesian Cultural Center, or there is another entity in Honolulu that also provides similar kinds of activities, if it’s specifically geared to address those kind of, that particular group, then I’d say it is tourism oriented. Other than that, like for instance, like Commissioner Ono stated, okay, you have an event and tourists come, you have tourists come in u-drive cars, they come in vans and buses. But however they come, it is not specifically 12 EXHIBIT A intended for them only. It is intended for the general public. So I think in that regard you cannot label that as a tourist-oriented function. KERN: Yeah, I think that most of the beginning statements sounded really good as far as helping define what it is. I can’t repeat it exactly but it sounded really good. You want to make a comment, Jeff? DARROW: I was just going to, generally it sounded like what Commissioner Domingo was saying, an event that brings tourists together such as a luau, something simple. LEITHEAD TODD: I think it was more the idea that it was an event that was designed and marketed to bring tourists to the site, and luau with Polynesian shows is an example of something. But it really has to do more with, I think, the way an event is organized and marketed. And I think what we were trying to prevent is something that would create lots of traffic. Because part of this was not just the concerns raised by Ms. Frederick, it was concerns raised by the police department, as well as DOT, as to how much traffic would be generated on the streets. And the concern was that something like a luau show or a concert was going to generate more traffic at a specific time than, you know, as a country market, when people come in and out at various times. You know, if the country market is open from eight to two o'clock it isn’t that everybody shows up at eight. But if you have something that is, you know, larger and has a specific time -. You know, we never discussed the time element. But I’m thinking that it’s kind of what you’re thinking of, is that it generates traffic at a specific time that is larger. And so I think that is what we were concerned about. But the entire representation during the application was that this was community based and it was special events for the community, and that there was no intent to do anything that was targeted or promoted to tourists. And I think that is why that limitation is in there, because of the presentation to the Commission that, one, they wanted to have the country markets, and we had specific time limits on that, and then they were allowed to have a certain number of special events, and they have to, you know, give us some advanced notice of those events; and those events were supposed to be geared towards the community, to fund-raising and -. But I think maybe in hindsight the next time something like this comes along maybe we need to look at the number of people you can have at any one time. You know, it’s easier to enforce specific numbers that are black and white, or -. You know like, I know that you have to stop an event by 10 o'clock, that’s definite, it’s a break line. If you know that you can’t start before a certain hour, that’s definite, that’s a break line. But the difficulty I think in some of the language that we employ, and it’s something that our department and our staff will have to take a look at when we make recommendations, is that if there is too much ambiguity it is difficult for us to enforce, it is difficult to the neighbors to know what they can anticipate, and it is difficult for the applicant who gets the permit to know what the parameters of what he can do are. But I think that as it stands the idea that it is something that is designed and marketed to bring tourists to the site kind of explains what a tourism related event is. KERN: Julie. Thank you, Madam Director. MECKLENBURG: So I think what I am hearing, and please correct me if I am wrong, is that you wanted, you intend to make a motion that the Planning Commission issue a declaratory ruling 13 EXHIBIT A clarifying that the use of the term tourist related activity is intended to mean an event specifically designed and marketed to attract tourists to the event site. Does that reflect your motion? DOMINGO: Yes. MECKLENBURG: You want to make that motion? DOMINGO: Okay I would move to that effect. And if you need further clarification I can do it, and that is if it is specifically designed to attract or accommodate a tourist group for a special event at the arena, then that is what we should consider as a tourism function. KERN: Is there a second? ISHIBASHI: Second. KERN: Okay. Discussion? ISHIBASHI: See, everything hinges around the marketing. And I believe especially if you are going to target at the hotels and advertising you’re going to have a luau up Waimea, that's, yeah, probably that's the no-no part. But I think other than that we are okay, we are okay with that interpretation. KERN: Yeah, I like it. I mean it allows tourists to participate in other events that are permitted there. It just allows for the marketing of that and the pinpointing of that tourism business to come in is not allowed. And I think that clarifies it in my opinion, so I would support it totally. Any discussion? Seeing none, Jeff? DARROW: Thank you, Mr. Chairman. The motion before us is to further define tourist related activities as an event that is specifically designed and marketed to bring tourists to the event site, such as a luau. With that I'll take the roll. Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Ishibashi? ISHIBASHI: Aye DARROW: Commissioner Au? AU: Aye. DARROW: Commissioner Ono? ONO: Aye. DARROW: And Mr. Chairman? 14 EXHIBIT A KERN: Aye. DARROW: The motion passes five to zero. KERN: Okay. Now we get to the big one, concert. Let’s define concert, if we so choose to. And I have some discussion on that so I look forward to getting to it. DOMINGO: Mr. Chairman? KERN: Commissioner Domingo. DOMINGO: If I recall correctly when we had this issue before us, you know, it was intended to be for a farmers market and to provide for occasional community functions. And it was specified that for nonprofit groups or other groups, community groups, that they can come and whatever, do fund-raising for their group. And that was my intention, and that’s how I, that was my intent; and that’s the way I voted on, based on that explanation. KERN: For the sake of a little bit being slightly out of order, but this is a unique situation for us. You know, usually we have discussion after a motion is made. In this case we’re trying to come up with a ruling, a decision on how that is made. So I’d just like to put my two cents in a little bit. Slightly out of order but we are allowed to do that, so it’s fine. You know, according to the record last time that we had, a concert we were thinking of as an event, the music event, being the primary. That was, that was it, versus having a roping, or a dinner and having live music. For instance, I was at the EMS run this weekend and there was live music there the whole time. It wasn't a concert. You could hear it, it was happening, but the people weren't there for the music. A big part of it, in my opinion, boils down to marketing. And I, you know, looking at the poster here it looks like a concert. I mean, it really does. If it might have looked different, it might not have been deemed a concert. But seeing it with the concert info hotline, you know -, “Bring your dancing boots for this party. Brush up on your Two Step and come on down for a great time. Plenty of Great B-B-Q” doesn't really get into “We’re having tables there, this is the dinner, come down, you eat good barbecue and listen to some good music.” That notwithstanding, I understand it is very hard to get people in the door; and marketing is a huge element of having people show up. If you don’t market properly, nobody shows up, nobody wins. But in this, to me, this feels like a concert. And then when you cross-reference that with the ticket prices and that this group was in another place charging that same price for the ticket, that gets it more defined to me as being a concert, with a little bit of tweaking to try and make it not be a concert. And that is what it is. I mean, we are all trying to do our best to get along and make things happen. So a lot of this can be dealt with by smart marketing to meet your conditions but not have it be a raging loud big concert. And I personally think that there should be live music available at these events, I mean, especially with the paniolo style and the country, I mean that’s, it’s how it works. But to market something like this does, to me, conflict with the condition that we have. And so to further clarify what a concert would be, you know, it is something to the extent that it, you know, the concert is billed as a concert; and if you were to look at this you would think concert. If I 15 EXHIBIT A saw barbecue dinner, Asleep at the Wheel, come get your table, come get your grinds, this is good music, a little bit less like a concert to me. Go ahead, Julie. MECKLENBURG: I think we should get a motion on the floor before you to proceed with discussion at this point. Do any Commissioners have a motion? For purposes of discussion, you can start with the definition that was suggested by the petitioner if you don't have another one, and that will at least open discussion at this point. KERN: So I’m ready to take a motion. DOMINGO: Mr. Chairman? KERN: Commissioner Domingo? DOMINGO: At the risk of trying to separate that which is considered a fund-raiser or a concert, as suggested by our counsel, I would lean upon the definition submitted to us by the applicant. KERN: Is that a motion? DOMINGO: Yes. KERN: So you make a motion to define that as being, define concert as being the language submitted by the applicant, is that correct? DOMINGO: Yes. KERN: Okay. Is there a second? Anyone? ISHIBASHI: I will second. KERN: Thank you. Motion has been moved and seconded. Now we can have some discussion. MECKLENBURG: So to clarify again, the petitioner has suggested that it be a music event that is promoted by a company, group, or an individual that does not donate a minimum of 20% of gate proceeds to a 501(C)(3) Hawai‘i state nonprofit or local family in need. And so a concert would include that, and it would be defined based on donations of gate proceeds. So it’s now open for discussion. KERN: Madam Director. LEITHEAD TODD: I’m very uncomfortable with that particular clarification because instead of defining the concert it is like any, you can have anything as long as 20% is donated to a nonprofit. And that is not what the special permit says. The special permit says no concerts. It doesn't say you can have a concert if you donate 20% of the proceeds to a nonprofit. And so this definition allows you to have a concert so long as you donate 20% of the proceeds. And that is not what is in the special permit. That essentially becomes an amendment of the special permit and allows a concert to be held 16 EXHIBIT A provided you donate 20%. And, you know, staff went and got the Webster's over both, the Webster's and the Wikipedia. Gosh, I'm not sure if Wikipedia is a good source. But the definition of concert, and so I’d just like to read this, you know, “A public musical performance in which a number of singers or instrumentalists or both participate. Concert is a live performance before an audience. Regardless of the venue, musicians usually perform on a stage. Informal names for a concert include show and gig.” I think that this, thank you staff, but I don't think that this is that helpful. Because what we had talked about was that if you were having the farmers market and you happen to have some music playing at the farmers market, then the draw was the farmers market but not the musicians. But that if you had an event where the big draw or the main focus of the event was the musical performance or some other type of performance, then that basically became a concert. And the rationale was that that type of event was going to draw a larger crowd. And so I am very comfortable with the language Mr. Anderson has proposed as the clarification, because it is really an end run around the prohibition on concerts. Now when I looked at the advertisement for the hoe down, it doesn't say, you know, $45, great barbecue, dinner, vendors, dah, dah, dah, dah, dah and some dinner music, you know, performed by so-and-so. You look at that poster, it's the band. The part about having a barbecue dinner is in a tiny, tiny print, that the dinner is not the focus. It is like when I go to a Polynesian review in Waikiki, hey, dinner is included; but the event isn’t the food. The event is the show, that's the draw. That's why I forked down $45 or $60 to go see, I think the last time I went to a luau at a hotel it was $60. And I am telling you the meal wasn’t worth $60. I was paying $60 for the show. That was the attraction. And I thought we were clear, you know, in the discussions that the primary draw, the event couldn’t be the music. The music could be an accessory, it could be a smaller part. And I think the example that I used, which had dated myself, was that, you know, years ago they would announce Sons of Hawaii is playing at a hotel, and, hey, we drove over to the other side of the island to watch the Sons of Hawaii. Now the price of admission might, you know, include something else, but the draw was going to see the performance. The draw wasn’t the meal that you would have. And so that was my concern when we saw the poster, that the draw here was the band. I understand their need to raise money and stuff, and to bring people in. But, hey, I go to all kinds of steak fries, I go to barbecues, I go to auctions, you know. And we had provided a specific exemption for Relay for Life recognizing that Relay for Life had unusual hours, that it did have music that would play in the evening, and we understood the nature; and we provided a specific exemption for them. But we were trying to balance the concerns of the police, I think we even had comments possibly from State DOT, and as well as the neighbors. And it really was geared more towards the issue of the traffic. Because noise you can control. It was traffic. And so I have some concern about defining it as the donation. Because also how do I enforce that? I’m going to have a Paniolo Hoe Down, I’m going to have a nine-time winning grammy group come and perform. Then in order for me to enforce this special permit, I’ve got to ask for their books to see whether in fact they donated 20 percent of the money to someone to determine whether it’s a fund- raiser or whether it’s not a concert. And that becomes very difficult cause then I’ve got to demand the books of the nonprofit and I’ve got to demand the books of the event in order to determine whether it is or is not compliant with the rule. So I think from an enforcement angle it becomes very difficult for me. 17 EXHIBIT A KERN: Thank you, Madam Director. Commissioner Domingo. DOMINGO: How about a statement made to the fact that it’s a fund-raiser for a specific cause or for a specific nonprofit group and to state that it will be conditioned upon that fund-raiser, would be solely for that purpose, and the main attraction would be -? For instance, if we’re holding one for muscular dystrophy, it would be for those people or individuals who have that disease, and that those funds would be channeled for that purpose. I mean you’re highlighting. You’re not highlighting a musical group that’s so well known that would attract people to come, but you’re highlighting the purpose of that function and that people would come solely based on the intent of supporting the cause of that nonprofit group. Of course, you can hold a dinner, you can hold an auction and, of course, you can have music. KERN: I think that’s a good point. So, in that, let’s say that marketing piece for that, and it says, you know, muscular dystrophy and all of that stuff, and it says in there somewhere and enjoy some good music by Asleep at the Wheel, and get your barbeque dinner on and what not, I don’t think we’d probably be in this situation. Cause it’s, the way I read it is they’re allowed to have live music, it just cannot be a concert. Right? DOMINGO: Yeah. MECKLENBURG: So I think that the motion, if I can try to clarify a little bit, rather than the motion that was made, it sounds like we’re going more towards amending that to clarify that the term concert in this case means, is intended to mean a concert will include a, I wrote some notes here and I can’t read my own notes -- Where an event, where the main attraction of the event or the primarily marketed aspect of an event is a live music performance and shall not include a music performance that is incidental to another event and otherwise complies with the conditions of the permit. Is that more along the lines of what the Commissioners were suggesting? Or please feel free to amend. KERN: Would you repeat it? MECKLENBURG: Sure. So a concert is defined as an event where the main attraction or the primarily marketed aspect of the event is a live music performance; and the term concert is not intended to include a music performance that is incidental to another event and otherwise complies with the conditions of the permit. KERN: That sounded pretty good to me. MECKLENBURG: So, Commissioner Domingo, you would need to withdraw your motion or amend your motion. DOMINGO: Yeah, I would amend my motion to reflect that which you explained. And I think the members of the Commission are aware of that, the interpretation of a concert. ISHIBASHI: Second. 18 EXHIBIT A KERN: Okay, so the motion has been amended, changed, and seconded. So we’re still up for discussion. ONO: Yes. KERN: Commissioner Ono. ONO: My understanding of this discussion is that, one, we have to consider that there is to be no concert, period. That’s a given. KERN: That’s a condition. ONO: That’s one of the conditions. So all of this discussion as to what amount of time is devoted to music or the live music portion is still a concert if the performers spend more than whatever, the incidental time. I guess what my concern here is that if, what did you say, Sons of Hawaii were to come there and they performed for two hours, for me that’s a concert. And if that’s the only activity then that’s a concert. KERN: Absolutely. ONO: Even if the money is given to a nonprofit activity, that is still a concert; and that’s in violation. Okay? LEITHEAD TODD: Uh huh. ONO: If the Sons of Hawaii came and performed for 20 minutes and that primary program activity is for that whatever, that marathon run thing, then I can suggest that it is incidental to the primary activity. So I guess I’m confused here why are we discussing the length of time or the percentage of profit money given? KERN: We’re not anymore. ONO: We’re not? KERN: That has been changed. ONO: Okay. KERN: To the last definition given to us by Julie. ONO: Okay. KERN: Which is basically saying that it cannot be billed as a stand-alone music event. If the music is incidental to, let’s say if the Sons of Hawaii were there but it is being ticketed, it is billed and sold as a steak dinner, maybe a keynote speaker, and then the Sons of Hawaii were going to play while this was going on for two hours, that’s not a concert. That is music being incidental. It’s good music, you can’t 19 EXHIBIT A hold that against them. You can’t tell them they can only have not such good music. You know what I mean? But the reason is, is you’re not going around and looking at a billboard or a poster saying Sons of Hawaii, Sons of Hawaii, that’s why you’re coming. No, it’s not that. It’s about the cause, it’s about the fundraising activity, or it’s about the dinner, and you might actually be inclined to see on there that the Sons of Hawaii are there. ONO: Okay. KERN: And that is to me a major difference with the way that this was marketed. I think if it was marketed differently we might not be sitting here in this situation. I mean it just looks, to me that looks like a concert. And if you’re going to give a portion of your money to, you know, a 501(C)(3) it’s so hard to keep track of that from an administrative standpoint. And just because you give part of your money away doesn’t mean it’s not a concert. ONO: I have another question. KERN: Commissioner Ono. ONO: When you do a fund-raiser, I guess when I’ve been involved with fund-raisers, anything outside of expenses is donated to the charitable organization. So I don’t understand 20 percent. KERN: That’s why we’re not dealing with that. ONO: Oh, okay. Thank you. KERN: You’re welcome. Any other discussion? Yeah, I just want to add that I think it’s important that we keep that they be allowable to have some music events in there. I think it’s good for the energy of any fund-raiser. I think it’s good for people when they’re donating money. I think it does help people get there. It just should not be the primary reason. And that was my intention when I voted yes on this, that the primary reason was not to have a big concert and it was not going to be billed as a concert, that it was not going to look like a concert, that there would be music there while other things were going on, that the other things were the primary, the cause or, you know, the foundation or the goodwill of people who were going there to do. And just as the applicant’s representative said on the record last time that “I believe my statement was that if the concert was ‘the event,’ if the music was ‘the event’, as opposed to people playing after a dinner or playing in conjunction with a roping,” then they wouldn’t consider that a concert, if it was in conjunction with. But when the music becomes the event which is the marketing piece of this that we’re working on here it seems that that is indeed the case. So it’s a real, I understand why the applicant is in here trying to get a declaratory ruling on this cause it’s a challenging situation. AU: I -. KERN: Commissioner Ono, I mean, Au. Sorry. AU: I’d like to hear what Mr. Higgins and Ms. Frederick would like, would think about our discussion. You know, where -. 20 EXHIBIT A MECKLENBURG: Kaapu. KERN: Kaapu. AU: Excuse me? MECKLENBURG: Mr. Kaapu. AU: Oh, sorry, sorry. Sorry, Mr. Kaapu. But, you know, I’d like to hear what they have to say about our discussion. So can we do that? KERN: Yeah. Would you please come forward. Go ahead. KAAPU: Just our comments. Would you like to hear from my client first? KERN: You can ask -. Commissioner Au? AU: You know, we’re going back and forth and we’re talking about marketing and we’re talking about all this. You are the neighbor and I just want to hear what you have to say about this whole thing, you know, from the very start when we were back here last year and then you’re here again. So, you know, maybe if you can just talk about it. FREDERICK: Thank you. KERN: Name and district you represent before you begin. FREDERICK: My name is Joanne Frederick, and I live on Mudlane, and I guess I’m technically on the Hamakua side of Mudlane. I’m not quite sure where to begin. I’m glad that you agree that the way that the most recent event was billed did appear to be a concert. I did not have problems with there being music associated with a benefit. My main concern has to do when I can hear the events. And, unfortunately, because it is open pasture primarily, not 100 percent but primarily, the music does carry. And I understand that there is a condition set by the, of noise limitations that are set by the Department of Health which is to help address that concern. I will say whenever an amplified event is held, I should say on several occasions that amplified events were held I have heard the noise from there. That’s when I made my complaints. And I would say at those times they were also after the hours specified in the permit. If they can have music at a fund-raising charitable event I don’t have a problem with it if I can’t hear it. A concert as you were discussing where it is being billed primarily as the musical event I do have an issue with. But I was glad that the wording was in the special permit. I didn’t think it needed further clarification. It’s always awkward for me on the spot. It’s not my area of being comfortable. But, again, if, I would say I felt that the wording concert was relative clear. Certainly when the music is the primary function that would be a concert. 21 EXHIBIT A I do have an issue with debating whether or not if 20 percent was the amount of being donated, clarified, constituted a concert. I just don’t want to see this getting into where this permit is being amended. And I’ll say if, well, I’m not sure what to add at this point to that. But thank you. KERN: Commissioner Au. AU: One comment that I want to make, we dealt with this last year and now we’re trying to deal with it again -- for us Commissioners we’re going back and forth on what we can or what we cannot do. And, you know, whatever decision is made everybody has got to live with it; and, you know, I just don’t want to see it again. FREDERICK: Another concern, thank you. Another concern, I don’t want to see that again either. And one of my concerns is that despite the wording of the permit, despite being advised against having events until the conditions of the permit were satisfied, Mr. Anderson has continued to hold events. He nd had one most recently April 22. Now this was a party at which the music was loud enough that I could hear the music. So as the Planning Director indicated enforcement is definitely an issue. I think that quite possibly, I think it’s quite likely that no matter what definition you come up with there are going to be more musical events where I will be affected. And I don’t want to be calling the police every time I hear music. They don’t want me calling them every time. It’s a waste of their time. I think the enforcement is a real, I think enforcement is impossible. My preference is that the wording of the permit stay the same. I do wish there was a way to enforce it. I haven’t been able to. There has been, as you’re aware I have made complaints. Each time I made the complaints the police that responded notified the participants to either lower the music or shut it down when it was after hours. The most recent one I believe was after midnight. So there have definitely been abuses along the way of the permit conditions that have been granted. I don’t believe, this is kind of going maybe outside of the scope, but my concern is that the requirements of the permit haven’t been met. He has been advised, Mr. Anderson has been advised to stop holding events until permit conditions were satisfied and yet events have been allowed to be held. So I really have major concerns that this will be ongoing. And it’s unfortunate that the wording isn’t stricter because this is why this debate is happening right now. So this will continue, I’m positive. And I’m not trying to be antagonistic to anyone. I just, you know -. I’m all for supporting charitable events. I think there are more venues to host these events. It’s not like where there aren’t other places where these events can be held. There are other venues, like the Honokaa People’s Theater, that are more appropriate. If I wasn’t, if my husband and I weren’t living on the property, of course, you know -. I mean obviously I’m the only one affected by it. It also affects our property values. If my husband and I decide to sell our house we’re going to have to, I don’t remember what the phrase is but -. PUBLIC: Disclose. FREDERICK: Thank you, disclose the information that I live near a property where you can hear live music whenever an event is held. And I don’t think I need to tell you what kind of an effect that will have. But I’m clearly affected by this. And I don’t want this to be ongoing; and I definitely would like some kind of resolution that -. Anyway, I’ll stop there. Thank you. 22 EXHIBIT A KERN: Commissioner Ishibashi. ISHIBASHI: Thank you, thank you for your time in coming here today. On the four occasions when you called, no -. I’ve got a question for you. FREDERICK: Oh, okay. ISHIBASHI: The four occasions when you called the police, do you know what type of event that was? FREDERICK: I can tell you if I get my notes. And I believe you have copies of the police reports. DARROW: Microphone, please. ISHIBASHI: Yeah, try get your copy first. FREDERICK: Do you have these copies of the reports? I did submit them. KERN: Yes. FREDERICK: Okay. So July 10, 2010 I had called around 9 o’clock. I guess the response of the officer was at 21:31 hours. The synopsis down at the bottom says “Reported of loud music coming from the sheltered arena on Highway 19 near the 51 Mile Marker. Arrived on scene and observed what appeared to be a concert event. Contacted event MC, who informed me that the event was a wedding reception and it was related to the arena personnel and that the event would be closed at approximately 1100 (sic) hours.” Now, again, that’s beyond the specified -. DARROW: Sorry, if I can interrupt. Commissioners, there were two letters submitted by th Ms. Frederick. One was dated May 24, and that should have come after the background and rec was st given to you. So hopefully you have those. The other one was submitted this morning dated June 1. So if there is one missing we can try to get that to you, or I can pass around one. KERN: I’m missing the earlier one. DARROW: Okey doke. Why don’t I pass around this copy and we’ll try to get copies for you. ISHIBASHI: I’m just trying to ascertain what kind of event that was. It was a concert, or wedding, or -? th FREDERICK: The second report was July 16, the time was 11 o’clock, again, after the hours, hour limit. And the synopsis just says I related that I could hear music emanating from the arena, and the music was due to a wedding reception, and the person indicated he would comply and shut down the music. Now if the music wasn’t that loud there would be no reason to turn that down. nd And then the most recent call had been on April 22, this was around 10:30 p.m., 10:24 was the response time. It was a private birthday party and the police officer advised the participant to lower 23 EXHIBIT A the music. And I had to follow up at 12:30 at night because the music was still ongoing. So report of loud noise complaint from the residence, upon arrival loud music and a large group of people were observed, and they were told to shut it down. KERN: I’d like to make a quick comment here. I think it’s a challenging situation when you have a property that part of it is being governed by a special permit and conditions. You still also own that property and you may want to -- I don’t know if this is the case but couple of things sound like they may have been the case -- that on a personal level like you’re having a party, they’re having a birthday party, maybe it’s for your son, maybe you have a wedding for a family matter, and yet you’re still having to conform to those same conditions. I don’t know if that’s the case but I could find that challenging just thinking about it like now. Now if I had something on my property where I was doing that, you know, I’m meeting my conditions, but then it’s my daughter’s, you know, first birthday -- and here in Hawai‘i we probably party pretty hard when it’s her first birth -- and so all of a sudden we’re kind of going in this other realm and it’s on a personal level. And, you know, they can get convoluted, and I think it’s challenging. And I think we can do what we can do to clarify things, but at the end of the day I think both parties need to try and be decent neighbors to each other, both sides, respecting both sides of things and being understanding from both sides of things. Cause it could be challenging. Yes, sir. KAAPU: If I can comment, I want to go back to the zoning issue because this is zoned Agriculture. So ordinarily these types of activities are not permitted, no matter how good a neighbor you are. And so I just want to point out to the Commissioners that this is an exception to the normal zoning practice, so it really doesn’t have to do with being good neighbors. One neighbor has asked the County for a permit to do something that is otherwise not permitted. And so I think the burden rightfully is on the person who has asked for that permit, not the surrounding neighbors that are acting in conformance with their zoning. The people that are acting and getting extra permission to do something unusual, the burden should be on them. And I just want to make sure that that’s clear. Because I think the comment that you have to be good neighbors supposes that people live in the same, under the same conditions. Like you live in a neighborhood, you put up with the guy, you know, put up with the guy next door. He cuts his grass, you don’t cut your grass or whatever. That’s understandable. Everybody lives under the same rules in that case. But when you come in and ask for a special use to be granted to you, I think the obligation and the burden should be on the person that’s asking for that, to take the care that they maintain all of the conditions that were requested of them under the special permit. That becomes their responsibility really, not the responsibility of the surrounding neighbors. Thanks. ONO: Can I comment. KERN: Just a second. Do you have a comment, Julie? Do you have something to say? MECKLENBURG: Yeah. I guess I wanted to kind of get back to what we’re doing here today, which again is just a declaratory ruling on the, and what we’re currently discussing is the word “concert.” So, and I want to remind the Commissioners that if the conditions of a special permit are not being complied with the Planning Director can revoke the permit. I mean there are other avenues here. Again, if the petitioner wants to amend the conditions of a special permit, there are other avenues that he can pursue to do that. What we’re here to do today is not to get involved in the other conditions as, for example, the noise limits, on the amount of noise or the hours. It’s already a condition that the 24 EXHIBIT A petitioner comply with those. So we’re not here to address those at all. So I just wanted to hopefully get back on track with discussion of the term concert and merely clarifying whether that pertains to specific circumstances such as the, what was it the Hoe Down. KERN: Paniolo Hoe Down. MECKLENBURG: The advertisement that’s included in here. So if we could get back to that discussion. KERN: We’ll do our best. Are you good, Commissioner Au? AU: Good. KERN: Okay. You all may have a seat. Thanks. I have a question I’ll ask later. ANDERSON: May I -? KERN: Come up, be brief, and we’ll get back to our, as Julie said we are getting kind of -. ANDERSON: Yeah, We’re taking way too long on this subject and it wasn’t meant to be this way. I mean, again, we’re here for special events, a special permit. Loaning it to a friend of mine to have his wedding there isn’t a special event. It’s not under the jurisdiction of the special permit. We’ve had two events, the Hoe Downs, that were fund-raisers. And, you know, we, maybe, and I apologize to the Director. I wasn’t trying to backdoor her on the definition of concert. I’m trying to define fund-raiser versus concert. So let you guys do your piece. But please when they turn in all this kind of stuff it’s really off the subject. I mean a birthday party or a wedding there aren’t a lot of venues in Kamuela. There’s Hawaiian Homes Hall and then they come to us as an alternative; and that’s our problem. There’s no facilities out there that can hold 100 to 200 people with parking. Thank you very much. KERN: Thank you. I have a quick question just for myself for future reference. What happens when we issue, maybe the Director can help me out -. What happens if we issue a permit and there’s, it’s guiding there, but then a person wants to use it for their own personal activity and it ends up being similar in nature with people there and some music there but it had nothing to do with the country market, it had nothing to do with the farmers? It had something to do with a person using their property for a birthday party or a wedding. How do those two overlap? LEITHEAD TODD: Well, I would say that if you were having your own birthday party, or your own wedding, or your children’s wedding on your property, then it’s not the kuleana of the Department. However, if you are using your facility for other people’s birthday parties and other people’s weddings, then I think it does become our kuleana because it’s Ag land and it has, it’s not an agricultural activity, and it’s not an activity of the people who live on the property. So it’s no longer a personal event of using your home if you’re using it for other purposes that it is not zoned for once you get outside of your immediate family. Because if you go that route then I could have a wedding every weekend because I have, you know, have multiple friends and I have, you know, I mean if I had a big house and a big facility, you know, then I could have something every weekend. And it’s clearly outside the scope of what is permitted on Agricultural land if you start using your agricultural land and 25 EXHIBIT A what was built as an equestrian facility for other purposes every weekend. I don’t care whether you are not charging for it. If you’re opening it up for all of those other events you’re going to get complaints; and the Department is going to go out there and issue notices of violation on that. Because, you know, that’s why people go other places. That’s why, you know, you find venues that can hold you. The fact that you don’t have a venue out there doesn’t mean that you get to go and do activities that aren’t permitted on somebody’s property. KERN: Very good. Thank you for that clarification. Do you want to reiterate the motion or -? DARROW: Thank you, Mr. Chairman. The motion before us, which is an amended motion, is to define concert as an event where the main attraction or a primarily marketed aspect of the event is a live music performance. Concert is not defined as a music performance that is incidental to another event and otherwise complies with the conditions of the permit. Does that sound correct? MECKLENBURG: Yeah, well, just say concert does not include a music performance that’s incidental to another event. DARROW: Okay, it does not include. Okay. MECKLENBURG: And before we go further I want to, for purposes of clarification I think that what I’m hearing is the Commissioners are rejecting the assertion that an event is either a fund-raiser or a concert. I think we don’t see any conflict between the use of those terms in the condition as it’s drafted. So, by that I mean that what we’re saying today is that the petitioner cannot have any concert as we’re defining it, even if it is a fund-raiser and, you know, with a 100 percent of the proceeds going to a 501(C)(3), or other charity, or family in need, or whatever. It’s, what we’re defining is just the term concert. So, again, it’s not versus a fund-raiser. Does that comport with the interpretation that everyone else is making? DOMINGO: Yes. AU: Yes. ISHIBASHI: Yes. ONO: Yes. KERN: Yes. Okay, with that being said, I don’t see anybody else wishing for discussion. DARROW: Okay, with that we’ll take the motion. Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Ishibashi? ISHIBASHI: Aye. 26 EXHIBIT A DARRROW: Commissioner Au? AU: Aye. DARROW: Commissioner Ono? ONO: Aye. DARROW: And Mr. Chairman? KERN: Aye. DARROW: The motion passes five to zero. KERN: Very good. Thank you. You’ll be notified in writing. The discussion ended at 11:14 a.m. Respectfully submitted, Sharon M. Nomura, Secretary Windward Planning Commission 27 EXHIBIT A