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HomeMy WebLinkAbout2011-08-04 WINDWARD TRANSCRIPT VERIZON PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT AUGUST 4, 2011 VERIZON WIRELESS (USE 11-28) A regularly advertised hearing on the application of was called to order at 10:47 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, Wallace Ishibashi, and Raylene Moses STAFF PRESENT: Julie Mecklenburg (Deputy Corporation Counsel), B. J. Leithead Todd (Planning Director), Daryn Arai (Planning Program Manager), Phyllis Fujimoto (Staff Planner), Maija Cottle (Staff Planner) and Jeff Darrow (Staff Planner). And 15 people from the public in attendance ABSENT & EXCUSED: Takashi Domingo and Stephen Ono VERIZON WIRELESS (USE 11-28) Application for a Use Permit to construct a 154-foot tall steel telecommunication monopole with 8-foot tall panel antennas and related facilities on an approximate 750 square-foot portion of a 1-acre parcel situated in the State Land Use Agricultural district and the County’s Agricultural 1-acre (A-1a) zoned district. The property is located at 13-3474 Kupono Street, which is on the west side of Kupono Street, approximately 400 feet north of the intersection of Kupono Street and Leilani Avenue in Leilani Estates Subdivision, Keahialaka, Puna, Hawai`i, TMKERN: 1-3-36:Portion of 41. KERN: Applicant No. 9, Verizon Wireless (USE 11-28), Application for a Use Permit to construct a 154-foot steel telecommunication monopole with 8-foot tall panel antennas and related facilities on approximately 750 square feet of land. Jeff. DARROW: Thank you, Mr. Chairman. Again, if I can direct your attention to our presentation, our next applicant is Verizon Wireless. They are requesting a use permit to allow a 150-foot (sic) monopole. The area of the application is within the Puna District, more specifically we’re looking at the Leilani Estates area. The black line running through the left side of the map is the Kalapana-Kapoho Road, and that brings you access to Leilani Estates. If you were travelling down Leilani Avenue you would be coming to Kupono Street, which is in the middle of the subdivision just near the community center. This is a closer up of the area. Identified in color is the zoning which identifies Agricultural 1-acre for the County zoning. The State Land Use designation is Agricultural. Previously it would have required a special permit. But with the change in the State Law the County has recently passed a requirement for a use permit within the County Agricultural zonings for a telecommunication tower. The area of the application or subject property is identified with a black outline. We have Leilani Avenue, Kupono Street. This larger 5-acre property is the area where the community center is located. The Association also owns these additional five lots. We’re looking at approximately 10 acres in this general location. This is an aerial photo. It’s a little dark, sorry about that. It identifies Leilani Street on the bottom portion of the map. You have Kupono Street. You have the community center identified in this particular area. This general 1 EXHIBIT B area is pretty cleared already. You’ll kind of see a black outline here; and what that is is it’s an asphalt sidewalk that’s used by the members to walk and run. The applicant is requesting a use permit to construct a 150-foot (sic) tall steel telecommunication monopole with twelve 8-foot tall panel antennas and related facilities on an approximately 750-square foot portion of a 1-acre parcel. This is the applicant’s site plan. Again, we show Kupono Street on the right side of the map. As you enter onto the property, you cannot access it from here. There is an entrance here; and then you have a roadway that comes this way, and then you would access it this way. These are trees that are in this general location. And, again, these properties are owned by the Association. You have the 750-square foot area in this general location. This is a closer up of that 750-square foot area which is basically 25 by 30 feet. It shows the actual tower with the antennas and the accessory equipment, cabinets, as well as backup generator. These are some site photos. As I mentioned earlier, the actual area of the application is in this general area, but you have to access it through this way and then come around on the back side. You see the trees that block that open area. This is on the open area. This is that asphalt sidewalk. This particular area is the general location of where this monopole is going to be located. Looking towards, what am I looking towards, I guess towards the west, this would be, you can see that there’s quite a number of large trees in this particular area. And, again, you have palm trees in this area. And looking towards the community center you see, again, this area has a quite a number of trees. You have the open field for the Association. And, lastly, this is looking on the other side, again, the asphalt sidewalk. The Planning Director, Planning Department’s recommendation is that the Planning Commission approve this with conditions. I do have some items that I need to take care. No. 1 is we’ve received quite a number of correspondence since this application was submitted to the Planning Commission. No.1, we’ve received a comment letter from the Department of Water Supply basically stating that they have no objections. We’ve received numerous letters. Three were submitted to the Commission this morning. One was from Mark Hauanio, Gregory Armstrong, and lastly David Helmick. We’ve received a letter previously from Janet Kama th dated July 27, 2011. We’ve received a letter from Paul and Patricia Craft, this was dated July 8. This letter is a letter of opposition, and within the letter they had actually filled out a petition for standing in a contested case hearing. We contacted Mrs. Craft who stated that their intention was not to submit for a contested case hearing but that they were submitting a letter of objection. There was no filing fee submitted along with this petition. So the Planning Department did respond in writing verifying that. We’ve received an additional letter from Jay Fischer who has filed a petition, a timely petition for standing in a contested case as well as submitted the application fee. And so we do have this contested case petition before the Commission at this time from Jay Fischer. I have one more matter, minor correction that we’d like to make to the recommendation. And that is on the first paragraph, it refers to a special permit, and we need to change that to use permit. KERN: Okay. DARROW: The remainder of the recommendation refers to use permits. KERN: With that, that concludes our presentation. Are there any questions? AU: Mr. Chairman? 2 EXHIBIT B KERN: One second. Jeff? So, Jeff, just to clarify, the original potential filing of a contested case was more so withdrawn, they just wanted to submit their testimony? But then there was another contested case that came in that was filed on time, that the fee is in there, and that person would like to move forward with having a contested case? DARROW: Correct; and they are present today. KERN: Okay. AU: Mr. Chair? Mr. Chair, question for staff. KERN: Yes. AU: Can we go back to that slide with the road, the driveway. You made mention that access to the proposed tower would be through two properties? DARROW: Well, what happens is it’s, when you look at this site plan, you have the actual special permit here in this particular area. You’ll notice that there is an opening here and then it goes through these properties. It comes around and then comes to this general location. AU: So it looks like you need to go through four properties; and all four properties -. I’m sorry, the other three properties besides the proposed property is owned by the Association? DARROW: All properties. AU: They’re all owned by the Association. DARROW: Correct. AU: And I’m assuming Association representatives are here. DARROW: Correct. AU: Okay, okay. KERN: Any other questions for staff? Seeing none, we’re just working on a couple of details here. We’re going to take a short recess, probably like three to five minutes, to figure a couple of things out. So I’ll let you know when we’re back in session. Thanks. RECESSED – The Chair recessed the meeting at 10:59 a.m. RECONVENED – The Chair reconvened the meeting at 11:05 a.m. KERN: So we’re done with our staff presentation. Are there any other questions for staff? We’ve got things ironed out? Okay, seeing none, if I can get the applicant or the representative to please come forward, or not. PUBLIC: Where he’d go? KERN: We’ll wait a minute. DARROW: He might be taking a break here, so he should be out shortly. Okay, he’s here. 3 EXHIBIT B KERN: Okay, can I ask the representative for Verizon Wireless to come forward. If you’ll raise your right hand I’ll swear you in. Do you swear to tell the truth today before the Windward Planning Commission? SUNG: I do. KERN: Okay. And name and mailing address. SUNG: My name is Steven, last name Sung, S-u-n-g, 581 Kamoku Street, Apartment No. 1708, Honolulu, HI 96826. KERN: Very good. You may begin. You may add anything to the application. SUNG: Yes, the presentation was well presented. We’ve been looking for quite, Verizon, we’ve been contracted by Verizon to look for a site to cover Leilani Estates for quite some time. We looked at a couple of other locations. That’s with Kamehameha School, which did not work out. And we were directed to basically change the searching somewhat to just go ahead and provide the coverage just for Leilani Estates, and cover the road well. And you, know, we went through couple of locations. At the end we just felt Leilani Estate community ground was the best location, a mutual location where, you know, if we put in one residence, let’s say even though they’re zoned Ag, we were afraid that other residents might want the site to be at their location, as well as the rent and what have you. So we just felt that being Leilani Estates community ground is a mutual location, the rent would go toward the community itself. We just thought it would be the best, best I guess, solution for everyone. So as I approached the Leilani Board we kind of looked at the community center and we all felt that, and the Board felt comfortable being toward the back of the community ground, which is where we have it proposed now. So-. KERN: Great. Before we ask questions, did you get a chance, you guys had a chance to look at the recommendation and conditions? SUNG: Yes. KERN: And you guys are acceptable with those? SUNG: Yes. KERN: Okay, great. Commissioner Au. AU: Question. SUNG: Yes? AU: Have you had community meetings? Have you attended community meetings and talked to them? SUNG: Yes, we’ve had. Actually I somewhat did a door-to-door thing. That didn’t work so well. I went during the day and most of the residents weren’t home. So what I did was I kind of consulted with the Board president. And later on they had a neighborhood community watch; and in that meeting they usually have, they held a meeting once a month and they passed out newsletters to all the residents. So they noted that there was a meeting for the Verizon tower. And we had a meeting, I think it was a couple of weeks ago which I think it was somewhat 40 to 50 residents that showed up. And I just pretty much gave them a status of where we are as far as zoning, just informed everyone of the Planning Commission hearing as well, and we kind of listened to any comments that they might have; and mostly it was, you know, people that wanted the site there. So -. 4 EXHIBIT B AU: Okay. What was the date that this application was sent in? Date on the use permit application, I’m looking at it, no date. There is no date sent. SUNG: I apologize. I think if, Jeff might have that. AU: In the documents background report, the date is empty. I want to know the date. And, you know, the applicant had said you went to door to door yesterday and –. SUNG: Not yesterday but rather I went, I’ve got to go check the record. AU: Okay. SUNG: But I did flew out and kind of drove, you know, with my car, and kind of just drove around. So -. AU: Okay, okay. Well, yeah, I’d like to know the dates of the meeting, the date, you know, about the, ballpark, date of meeting and maybe date when this application was sent in. My document says, there’s a “Date” and it’s blanked out. I was just wondering when this application was sent in. DARROW: Sent in? AU: Sent in, yes. DARROW: Well, the original application came in quite some time ago. Give me one second. AU: Is it ’09, April -? DARROW: No , it was probably, at the beginning of year; and then we had sent it back asking for additional th information. When we accepted the application was June 7. th AU: June 7? DARROW: Yeah. AU: Okay. DARROW: So we had been working with the applicant for a period of time prior to that date. AU: Okay. SUNG: And, also, we were, you know, with, I guess, the requirement from the Use Permit Procedures, we also installed a sign , that’s right on Kupono Street, just to inform everyone that a use permit application was submitted for that purpose. KERN: Any other questions? I have a question. SUNG: Please. KERN: The, this isn’t necessarily – it’s more to your towers. Your towers don’t really go that far. SUNG: When you say don’t go that far, the coverage wise? 5 EXHIBIT B KERN: Yeah, yeah. SUNG: Coverage wise, the reason -. KERN: It boggles my mind. I know that there’s a Verizon tower on the other side of Geothermal. SUNG: Correct. KERN: And I have Verizon and I drive that area all the time, and it does not work very well at all. SUNG: Well, the problem is this – We’re under FCC guidelines. The output, the radiation output is extremely low. Now while it’s good that it’s low, the problem is it doesn’t go far. Now with the terrain, topography of, you know, where you’re driving, there will always be dead spots. So that’s the downfall when it comes to, you know, following FCC guidelines. Otherwise, if you want it to blast it all the way through, sure, you’re going to get coverage miles and miles away. But at the same time, you know, health wise it’s not, you know, we have to certainly look at that. So the output on all the cell towers under FCC guidelines, depending on how high the tower is and the output, is basically somewhat minimal. So that’s why you don’t catch it far. And that’s why there are so many needs for other towers to kind of cover that dead spot or to, for capacity issues -. Let’s say if you have two cell towers and you have a community that has grown and you have more users, subscribers, and more people use cell phones now, now that cell tower is only going to have so much capacity. So once you have, let’s say emergency situation, power outage, or earthquake, and even natural disasters, everybody, landline is down, everybody wants to use the cell phone, so what do they do? Cell phones. So everybody uses the cell phone same time, well, it’s full capacity, and that’s when you get dropped calls and nobody gets phone calls. So, and that’s why sometimes you just, there are more carriers who want to add more towers to provide the capacity issue as well as the coverage issue. So -. KERN: Okay. And this one pretty much is partly going to cover just Leilani -? SUNG: Leilani Estates. KERN: And maybe either side of the road that passes it? SUNG: Somewhat, yes. Well, and I think it was east/west or north/south, as well on that main road, Kupono, I forgot the road name, but also on the other side as well. And that’s why we want to be more in the middle than anywhere else, you know, not too far north and too far south. And that just worked, it just worked out that way. So -. KERN: Commissioner Ishibashi. ISHIBASHI: Thank you, Brother Chair. Should that pole fall, how many homes within the vicinity that would possibly get damaged if, whichever way it falls, your tower should fall in an earthquake? SUNG: Well, I have never had a cell tower, I’ve never heard of a cell tower collapsing. And most cell towers, they are built in a sense where it collapses down instead of going, it’s a section that you install. So usually most cell towers, and I need to confirm that, they collapse straight down instead of going sideways, or one way or the other. So we, in most cases -. We follow setback guidelines. In Agricultural zones for Hawaii County the setback for Ag-1 is one-foot setback, no, five-foot setback, no, one-foot setback for every five-foot of the tower. So we follow that guideline. But as far as if a 150-foot tower falls down, it’s still within the property line. So it would just fall within Leilani Estates Association ground. It won’t hit any homes or what have you. But, once again, it most likely is going to collapse straight down. That’s how it’s designed. 6 EXHIBIT B ISHIBASHI: Thank you. SUNG: Sure. KERN: Any other questions? Seeing none, do you have anything else to add? SUNG: No. KERN: You may have a seat. SUNG: Thank you. KERN: Thank you. Okay, we’re going to do public testimony next. I’m going to limit public testimony to three minutes per person for the sake of timeliness. I will call up four people at a time, and you will speak as you are called up. So Al, and I also apologize for butchering anybody’s name, Dettweiler, Rick Melzig, Donna Debaets, and James Walsh. I’ll swear you all in at the same time. And then before you speak you’ll need to give your name and just the area you represent will be fine. So if you’ll all raise your right hand. Do you swear to tell the truth today before the Windward Planning Commission? TESTIFIERS: I do. KERN: Okay, very good. So we’ll start with Al, and name and area you represent, and you may begin. And I will let you know when your three minutes are up and you can summarize. DETTWEILER. Good morning, Commissioners. I’m honored to be able to give testimony today for Verizon cell phone tower. My name Al Dettweiler. I live at 13-3063 Kaupili Street in Pahoa, that is Leilani Estates. I am the president of Leilani Community Association. And I’m here to testify in favor of putting the cell tower up. Now there are a number of reasons why we want to have this cell tower installed in Leilani. The No. 1 reason is the limited service that we do have in Leilani. The only service we have right now is from AT&T. Their tower is located by PGV, and it’s very marginal because Leilani is not a flat level subdivision. It has hills so it blocks signals at times. So there is very limited access within limit. Also it’s an emergency situation. We’re in dire need of a cell phone service that works in Leilani. If we were to have a serious problem in Leilani and the landlines were to be broken, there is absolutely no communication. Now I also have experienced back in the year 1991 when PGV was still building their power plant. They had a KS7 blowout, no communication. Nobody knew what was going on. The Police Department told people to do one thing, the Fire Department told them to do something else and Civil Defense told them to do something else. The reason that happened, no communication. We don’t want to deal with that anymore here in Leilani. Now I’d like to bring to the attention of the Commission also that you’ve already set a precedent for this issue. Nanawale has a cell tower on their community property. So you’ve really set a precedent on that issue. Also I’m a newspaper carrier for the Tribune Herald, and I handle all of lower Puna. I’m out there at 2 o’clock in the morning. My wife handles Leilani Estates. The only communication we have is a cell phone. We don’t have no landlines around. If anything happens we hope that we can communicate with each other. Now let me just say this to you from my experience. I’ve done a lot of neighborhood watch type of things, not within Leilani. I’m talking about Red Road. I’m talking about all along the shoreline, all the way down to Kamilo that without cell service we’re in a big problem. I came to accidents that occurred in the middle of the night, had people who had family abuse and the wife is sitting out in the middle of the road trying to get some 7 EXHIBIT B help. If I didn’t come by she would have been there forever, and the same thing with automobile accidents and trees down. So we definitely need a cell tower at Leilani and it’s dire at this point. So I wish the Commission would really take a serious look at this solution. I think you’ll all agree that we definitely need a cell tower in Leilani Estates. KERN: Thank you very much. Are there any questions for the testifier? Seeing none, Rick Melzig. If you could just state your name and the area in which you represent. MELZIG: Yes. Good morning. My name is Rick Melzig. I am a resident of Leilani Estates at 13-3465 Moku Street. And, in fact, we are this property on the corner of Moku and Leilani. So we are 700 feet, a little math study I did last night, our home, from the proposed tower. We are strongly in support of this project, we being my wife and I. And I don’t particularly want to be redundant with Mr. Dettweiler, but I think he said what needs to be said. And I have a representation of a feeling of a lot of our neighborhoods that this is in the net good. The question of falling radius of monopoles, the monopole is within 150 feet of anything except the park bench and the asphalt trail back there. And, as a final thought, I would have to represent that I am a very loyal Verizon customer. My first GTE mobile net phone number was assigned in 1989 and I still use it, still have it. So for whatever that’s worth, I’ve had good experience in California and here with Verizon. Thank you. KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Donna Debaets. DEBAETS: Yes, Donna Debaets. My name is Donna Debaet, and I live in Leilani at 13-1042 Kahukai Street. And I mainly just wanted to say I’m in favor of this for two big reasons. One is personal. I’m a Verizon cell phone user. My service isn’t that good at the house. I drive around the lower Puna area a lot by myself and I’d really like to be able to, you know, reach, especially if there is some sort of emergency. And I’m retired in law enforcement and EMT and my understanding, and this is my next reason, my understanding is that this cell phone service would really increase the emergency service communications in the area, which is, you know, really, really important. I don’t know, you know, I guess I thought some of the public safety people would be here testifying. Just what I heard at the neighborhood watch meeting is that, you know, they’re really in favor of this. So I hope you vote in favor of it. Thank you. KERN: Any questions for the testifier? Seeing none, thank you. James Walsh. WALSH: James Walsh, 13-114 Kahaukai Street in Leilani Estates. I’m definitely in favor of this, again, for emergency reasons. We need the cell phones. We’re kind of strapped if like the landlines do go down. I know the police, the fire, civil defense, everybody could use better communications in the area, around Leilani and even below Leilani where I believe this tower will help also. I think it’s black and white. We really need it. The service is just not working in Leilani. Thank you. KERN: Thank you. Any questions for the testifier? Seeing none, you all may have a seat. Thank you very much. Calling up the next four, George Kelly, Wymond A. Wilds, Greg Armstrong. And Jay Fischer, I’m going to call you up; but we’re going to deal with that a little bit differently. Jay Fischer, hang on there for a minute. We’ll finish then and get to you. Thanks. All right, will you all raise your right hand. Do you swear to tell the truth today before the Windward Planning Commission? TESTIFIERS: Yes, I do. KERN: Very good. We’ll start there with George Kelly. KELLY: Name is George Kelly, I live at 13-3520 Alapai Street in Leilani Estates. I’ll read fast since I’ve only got three minutes. I’m testifying today as a CERT, Community Emergency Response Team member, as a Neighborhood Watch member, as past Commander VFW Post 3830 and as a concerned citizen. 8 EXHIBIT B As a CERT member we need this cell tower so that we will be able to respond to any emergencies in the area, including island wide emergencies such as our last tsunami which we had. During that time the cell towers, the cell communications was dropped out, lost, because we didn’t have a repeater tower close to us. In the event that Highway 130 is ever cut off, Leilani is one area where helicopters can bring in food, medicine and/or medical personnel to our community. Proper communication is essential to CERT and the community. At this time a large portion of Leilani and lower Puna is a dead zone for cell operations. As a neighborhood watch member it is essential to have communication with police, fire and EMT’S. If someone is having a heart attack it is not very good to leave them there, drive around the neighborhood to find a cell signal, and call an EMT, the same for a fire or other emergency. As a VFW Post 3830 member I’d like to state that a lot of veterans including homeless vets have only a cell phone for communication. Once they leave Pahoa they completely drop off the grid. They have no more communications. The last census showed we had 2300 homeless vets on the island of Hawaii and 1300 of them live on the east side. And 90 percent of those, that’s their only communication. That’s for health, medical, anything. As a concerned citizen and Leilani resident I feel that we need this tower to provide coverage to offset the spotty telephone coverage we have now. Every time the wind blows hard or the rain gets heavy or we have an electrical storm we lose power and/or phone service. Also, we have the Puna Geothermal as a neighbor on one side and an active volcano on the other side of us, so reliable communication is a necessity not a luxury. So I’m all for you guys saying “yes” to this. KERN: Thank you very much. Any questions for the testifier? Seeing none, thank you. Wymond Wilds. WILDS: Yes. Wymond Wilds, I live at 13-3556 Alapai Street, Pahoa. I’m a member of the Leilani Association Board of Directors. I’m Captain of the Neighborhood Watch; and I am also a member of the Community Emergency Response Team (CERT) for the County of Hawaii. When I moved to Leilani in ’95 the subdivision and others in lower Puna had party lines for telephone. I had not been exposed to this since 1950. The people clamored for private lines in Keaau. And they were installed and activated within a week. They had it, they just weren’t putting it out there to us. Lower Puna needs to have the communication system upgraded. The cell tower would greatly enhance the capability by and for the following reasons: If a landline is disrupted or not available, you have to go down the road and maybe get some reception. In the event of a telephone or electrical power loss the cell tower would still function being as it has got an on- site generator. This is a 30 kw generator. And talking to them, they said they would test it every couple of weeks to make sure this was fully functional. The cell tower would service lower Puna from Pahoa; And I was informed that they could get reception all the way to Kapoho, and to Kalapana, and out to sea In other words, those along the shoreline if we got an emergency down there, somebody is over a cliff, opihi picker, something like that they could possibly have a rescue. While attending a meeting and a guided tour at Puna Geothermal Ventures, the County Civil Defense representative there endorsed the need for quick response communications in the area. And like it was previously stated during the tsunami we were put on alert for that situation. 9 EXHIBIT B There are no statistics to show that the cell tower would be a hazard to our community. They were talking about height and everything, and most all of the houses are in excess of that 150 feet. The cell tower is not unsightly, nor does block one’s view. And I equate it to telephone or electrical lines blown down the road. You don’t see them after a while unless you’re using them for navigation like Keaau turn-off. I vote for the cell tower application to be located in Leilani Estates because we need to communicate. Thank you. KERN: Thank you. Any questions? I remember the party lines growing up in Puna. We will go to Greg Armstrong. ARMSTRONG: Okay, I’m Greg Armstrong. I live at 13-3434 Moku Street in Leilani Estates. I’m a resident and I’m also the treasurer of the Leilani Association. And I’ll just make it brief because basically I’lljust, you know, back up everything everybody else has said. It’s an issue for us for security, for safety. I’m also on the Neighborhood Watch. And if you’re out there and you need help you don’t always have a – I carry my cell phone, my Verizon, and we also have one for the Watch and sometimes neither one of them have service in the area. So we need them. So I think this is very important for the whole area of Leilani, as well as the neighborhood around there. KERN: Thank you. Any questions for the testifier? Seeing none, you gentlemen may have a seat. Thank you. I’ll call for Jay Fischer. I’ll swear you in real quick. Could you raise your right hand. Do you swear to tell the truth today before the Windward Planning Commission? FISCHER: Yes, I do. KERN: Okay, very good. So you filed standing for a contested case, correct? FISCHER: Yes, I did. KERN: And you aware what that means? FISCHER: Yes, I am. KERN: Okay. And so you’re going to have a different, if this is, if it does get granted to you, standing is granted, you have a different opportunity to testify and kind of cross-examine people, gives you some different rights. You’re aware of that, right? FISCHER: Yes, I am. KERN: And you want that? FISCHER: Yes, I am. MECKLENBURG: So at this point you’re just giving testimony as a member of the public? Is that your intent right now? FISCHER: Yes. 10 EXHIBIT B KERN: Do you want to give your three-minute public testimony, and then deal with standing for a contested case? FISCHER: No, standing for contested case now. KERN: That’s what you want to deal with, right? FISCHER: Yes. KERN: Okay, so we’re here. So point of clarification, you’re not in front of us right now to give testimony. You’re in front of us to have your standing, see if you can get standing for a contested case, correct? You don’t automatically get standing. We have to vote on it to give you standing. FISCHER: Yes, I understand, yes, I understand. KERN: And is that what you’re after? FISCHER: Yes. KERN: Okay. MECKLENBURG: Sorry, I’ll just clarify for procedural purposes. You signed up to give public testimony. You will have an opportunity to make a statement with respect to your petition for standing in this matter. So if you’d like to withdraw your public testimony request, we can move on to your petition for standing. FISCHER: Let’s do that. KERN: Okay. So you’re withdrawing your request for public testimony as it’s here and moving on to the standing for contested case part? FISCHER: Yes. KERN: Okay. So that, there are a few criteria that we need to look at as a Commission to either grant or deny standing for the contested case. Julie, if you wouldn’t mind pointing that out and giving us the breakdown on that. MECKLENBURG: Okay. Let me get the rule. KERN: And while she’s doing that, would you give us your reason why you want standing in a contested case hearing. FISCHER: I don’t see any other purpose. I mean -. KERN: Why, where are you located in respect to the property? FISCHER: If you look right below the outlined property, it would be one of the square lots, second one in. AU: Mr. Chair? KERN: Commissioner Au. 11 EXHIBIT B AU: In the mean time can I ask a question for staff while -? KERN: Who? Daryn? AU: It doesn’t matter, Jeff or whoever. KERN: Jeff. AU: This letter we got from Paul and Patricia Craft, who lives in Florid a, where is their property located? Just curious. DARROW: I’m not sure -. FISCHER: Their property is right about here. AU: Okay. Any minutes -? I guess, Mr. Chair, question for the testifiers or to the Association. Any, at the meetings of your Association, or is appropriate to ask? They’d have to come to the -? KERN: Let’s hold off one second cause we’re right in the middle of figuring out the contested case. And then after that we can get to that. AU: Okay. KERN: Thanks. So what Julie is going to do is she’s going to read the criteria for standing in a contested case, so we refresh our memory as Commissioners of what that is so that we make a decision to either give standing or not. Julie. MECKLENBURG: Okay, so under Rule 4-6 of the Commission’s rules, Subsection b states that upon receipt of a written request to intervene, the Commission, at the first meeting on the matter, shall hold a hearing on the written request. And you all have the written request in your binders. The petitioner shall be admitted as a party if he can demonstrate that his interest is clearly distinguishable from that of the general public; or Government agencies whose jurisdiction includes the land involved in the subject request; or they have some property interest in the land or lawfully reside on the land; or even though they do not have an interest different than the public generally, that the proposed action will cause them actual or threatened injury in fact; or basically that they are descendants of native Hawaiians. So I believe that the reasons being asserted by the petitioner for standing today is that his interest is distinguishable from that of the general public and that the proposed action will cause him actual or threatened injury in fact. And so I think the Commission can start by hearing the justifications or the support for those assertions from the petitioner. And then you will need to make a decision on whether or not to grant standing on those bases. KERN: Great. So state your case for standing. FISCHER: For standing, yes. Well, basically I’m, that’s my lot right there, this over here. That would be 250 feet from my house. Basically it’s like putting the thing in my living room, you know, essentially. It would devalue my property. Who would want to live next to a pole that close? There are other concerns in regards to this. For example, the way I understand the plans, it is a monopole. It’s one monolithic pole; and that would fall to one direction versus collapsing straight down. The rays, the rays that are attached to that, if they fall, bounce off, it could bounce off onto my roof potentially. I mean that is physical. The other thing is if it should fail, you know, access to the community center, it would impede the right-of-way to get into the center for safety. Those are just some of the issues. I mean my general interest is for Puna as a whole. It’s for Leilani. I’m not opposed to a cell tower in Leilani, just at the community center. This is a place of safety that people go 12 EXHIBIT B to during an emergency. We have made it this far, we’re all here; and we didn’t have cell phones not long ago. We’re going to survive. That’s it in short, really. KERN: Thank you very much. So now it’s up to us as the Commission to make a motion to grant standing or to deny standing. And I’d be willing to take a motion on that one. Are there any questions from the Commissioners for Mr. Fischer? AU: Question. KERN: Commissioner Au. AU: So you’re going to build a house there? FISCHER: Yes, what? AU: You don’t have anything on it right now? FISCHER: That’d be correct. I came on the island a few months ago. And about a week before I was going to submit my plans to build I got a letter from Verizon. I knew nothing about it, went and talked to the community and people. I got 45 signatures. Almost all of those people are younger people with kids and they were surprised that a tower was going in there. They didn’t even know. How can they -? AU: Excuse me, go ahead. FISCHER: I mean, how could they not know? I mean it’s for the same reasons, I think it should have been stated more clearly. There were some one-liners in their newsletters, Verizon coming, should have come last June. I think there was one more one-liner as well. AU: So you reside in -? FISCHER: In Hilo right now, I’m renting it. AU: No, no. I meant prior to moving from the mainland where were you? FISCHER: Belize? AU: Excuse me? FISCHER: Belize, Central America. AU: Oh, Belize, okay. So your mailing address is, I mean -. FISCHER: Is in Hilo. AU: I mean in the past you’ve been getting mail through the Association, you’ve been updated on what was going on by your Association. Cause you were a landowner, right? FISCHER: Yes. AU: So where was your mailing address with the Association? 13 EXHIBIT B FISCHER: In Belize, I believe, yeah. AU: Have you recalled receiving any notification? FISCHER: No, no, no. Missouri, I’m sorry. Yeah. AU: In Missouri, okay. Have you recalled receiving any information from your Association where you own property from -? Do you recall seeing any newsletters? FISCHER: No. AU: Okay. FISCHER: Not regarding Verizon. AU: Okay, but you have gotten newsletters -? FISCHER: Yes, yes. AU: Okay. Did you attend this July 26, 2011 -? FISCHER: I did not. Honestly I was afraid of being, you know, basically torn down. AU: Okay, well, you know, we do live in America so you can go to meetings like this and you’ll be fine. Is it appropriate to start asking questions now? Is this what we do for -? MECKLENBURG: Could I just -? AU: Okay, okay. KERN: More so based on the standing. AU: On the standing of a contested case, yeah. KERN: Yeah, we’re not getting into -. MECKLENBURG: Could I just ask a question. Your most recent letter indicated that you are, you have retained counsel. Are you represented by counsel on this matter? FISCHER: No, not at this point. It depends what’s going to happen and the events that come because, well, the finances for doing that, you know. I would love to have the finances to be able to sell my property and do that; but it would be difficult to recoup the loss. KERN: Do you have any more questions, Commissioner Au, regarding standing? AU: No, not regarding standing. I have questions for other, I guess, at this point later. But I should ask them, but not for the, I don’t have questions right now for Mr. Fischer. KERN: Yeah, after Mr. Fischer is done, we’re going to get the applicant to come up and he is going to give his part of the standing portion of it; and then we’ll move forward. So are there any other questions for 14 EXHIBIT B Mr. Fischer? Seeing no other questions and you gave us your side of it, so you may have a seat. And we’re going to get the applicant to come up and they’re going to -. FISCHER: Thank you. KERN: Share their side of it and then we’ll get to either granting standing or not. Okay? FISCHER: Okay, very good. KERN: Thanks. You’re sworn in, good to go. Would you like to make any comment based on this? SUNG: Yeah. And, I guess, as far as concerns about the safety issues and what have you, maybe I’ll just answer -. KERN: He’s come up and gave us his side for standing. And so we’re now considering whether to grant standing or whether to not. So as you being the applicant, him being the intervenor and you being the applicant, we’re just giving you a fair shot to interject in anyway. SUNG: Okay, fair enough. And I think the main thing is as you’ve heard from the testimony from the other residents there is a need for coverage at Leilani Estates. We’re not just putting a cell tower anywhere we want. You know, we don’t just, Verizon does not have so much money they just want to blow at any, you know, just put up a cell tower anywhere. There is a need. We have not complaint but rather concern from our subscribers that, you know, they want a cell tower there. As far as the location of this cell tower, you know, we have gone through, as I explained before, having a mutual location, a community center. Other than the community center it’s all residential pretty much. You know, even if they’re zoned agricultural, they’re all residential lots. So having a mutual location, having the rent go to the community is the right thing to do. KERN: Okay, I’m going to stop you there because you’re more so giving your case on what you guys want to do. If you’d like you have the option to basically give your side or your points of why he may not have standing for a contested case. And with that, I’ll let Julie clarify that. MECKLENBURG: So we’re considering the petition for standing; and I’m not sure if you’ve received all the materials. I believe you probably have. But it’s on the basis as you’ve heard of safety issues, property devaluation and aesthetic concerns and health concerns. So if you’d like to respond to any of those -. SUNG: Certainly. As far as health concerns, you know, once again we’re regulated by FCC guidelines. We’re well within our, our radiation output is well within the FCC guidelines. So there’s no known studies that says cell towers causes cancer or any other health risks. You know, we are basically following what is required as far as following the FCC guidelines, once again. But as far as safety issues, you know, once again, the tower is 150 feet tall. When it falls usually I think most of the towers nowadays is designed to collapse straight down because they have sections. And that’s how they’re built that way. Now even if it falls flat, and once again I have never in my ten years of doing this, I have never heard of a cell tower collapsing. I don’t know if you’ve heard of one. But if it does collapse one way or another, we’re talking about 150-foot down; and we’re talking about the antennas going another 100 feet. You know, I think what Mr. Fischer’s concern is, I just don’t see the antennas or anything else that would hit 150 or 100 feet further down. So as far as that safety issue goes, they’re, you know, the way we build cell towers, I have never heard of cell towers that fall straight down, period. So unless somebody can show me a case, you know, please do so. But otherwise I have never heard of one, even with, you know, even with Katrina, with Katrina in New Orleans. 15 EXHIBIT B Even with the water coming down cell towers, no cell towers fall; and that should give you a good reason as to how safe these cell towers are being built. So, but as far as other concerns, I forgot, what was the other one you had mentioned? Sorry about that. MECKLENBURG: Property devaluation and also aesthetics in terms of it being an eyesore. SUNG: Sure. As far as aesthetics goes, there are trees around to buffer the area, I don’t know if you’ve seen any other cell tower, as you’re driving along, you know, in Hilo or anywhere else that you see cell towers. Unfortunately, you know, it’s the cell tower looks a certain way; but we do have enough trees that will buffer array. the bottom of the pole. Where you’re going to see is just the top of the antenna So, you know, that’s how these cells towers are built. And that’s all you can do as far as the aesthetics goes. And we do have enough threes, you know, in the surrounding, the whole entire neighborhood that kind of buffer the most, the top of the top, well, the bottom of the tower itself. But the top, you know, basically it will stand up. I think the other one was property devaluation. And in the end, and I’m not a real estate agent, you know, but I would like to think that people that want to buy and purchase a lot would want to make sure they have cell phone coverage. In that sense, I think, you know, we can guarantee having a cell tower in that neighborhood. So I don’t know what the answer is to that; and once again I’m not a real estate agent. But I would like to think that, you know, having the service there would improve your value of your property, if anything, or more attractive for any potential buyers. So -. AU: Question. KERN: Commissioner Au, go ahead. AU: Thank you, Mr.Chair. No guy wires, yeah? SUNG: No guy wires, no. AU: How deep is your footing? SUNG: If I’m not mistaken for 150-foot tower would go, I would think, 40 feet at least. KERN: If there is a possibility there could surveillance cameras attached to the tower top? SUNG: I guess my question then is for whom when you say surveillance? MECKLENBURG: The applicant for standing has asserted that there is a possibility that surveillance cameras at the facility would be looking into resident’s yards. SUNG: There is absolutely no surveillance camera. If that’s what you, if the carriers have surveillance cameras installed on the tower or in the compound area, absolutely not; and that’s anywhere in the country. KERN: Would they potentially be allowed to? SUNG: No. KERN: If somebody made a deal with your -? SUNG: No, no, absolutely not, absolutely not. 16 EXHIBIT B KERN: Okay. Commissioner Au. AU: What is the, I’m looking at the dimensions of, it looks like the fencing area. How high is the fence going to be? SUNG: Six-foot high, six. AU: Six feet high? SUNG: Six. AU: Chain link fence? SUNG: Chain link fence, correct. AU: Is there going to be electrical fencing? SUNG: No, no. AU: No. Okay. Barbed wire, anything like that? SUNG: No. AU: No. Okay. SUNG: It’s a chain-linked fence, yeah, to answer your question. KERN: Okay, well, I think we went -. AU: Oh, wait, one more question. KERN: Yeah, go ahead, Commissioner Au. AU: The power -. SUNG: Yes? AU: How are you going to get power to it? It has its own generator? SUNG: Well, generator only comes in if there is a power outage. The automatic switch kicks in and the generator will start. But -. AU: So it has an on-site generator? SUNG: Yes. AU: It has its own power source. No underground wiring where anybody can trip on -? SUNG: No. AU: Or drill into it, no overhead, I was going to say overhead telephone wires but -. 17 EXHIBIT B KERN: There’s a hard line running in there. SUNG: Well, yes, but it’s underground. AU: Oh, it’s underground. And what’s the dimensions on that? Oh, you know what, you’re going to go through the Building Department. SUNG: Permit, correct. AU: That’s concrete jacket and all of that stuff then. SUNG: Correct. KERN: You’re checking for the safety concerns? AU: Safety kind of concerns for the contested case. And I have questions later so I guess later on -. KERN: Outside of standing, yeah? AU: It’s not for the contested case -. KERN: Okay, then we’ll have a chance for that. Okay, so I think you’ve had a chance to inject on all of those. SUNG: Yes. KERN: So if there’s nothing else -. SUNG: No, I’m good. KERN: You may have a seat. Thanks. Okay, so now it’s up to us to make a motion to either grant standing or to deny standing to Mr. Fischer. Commissioner Ishibashi? ISHIBASHI: I make a motion that we deny standing on the contested case hearing. KERN: For what reason? ISHIBASHI: Just based on the safety concerns. Looks like they addressed all of the safety concerns on the cancer, the distance of the poles and the potential falling on any structures or housing close by. MECKLENBURG: Okay, yeah, just to clarify. So the two bases that have been asserted are: (1) that they don’t, that the proposed action will cause an actual or threatened injury in fact; and so that’s the potential safety issues. But also if the petitioner’s interest is clearly distinguishable from that of the general public, then they shall be admitted as a party. So it’s any one of those. So in order to deny standing you have to have both, address both bases that their interest is not clearly distinguishable from that of the general public and that the proposed action will not cause them actual or threatened injury in fact. Is that clear? ISHIBASHI: Yes. MECKLENBURG: Okay, so if you could just state your reason why you believe the petitioner’s 18 EXHIBIT B interests is also not distinguishable from that of the general public, we need that on the record. ISHIBASHI: Yeah, cause on the general public we have other residents living in that same proximity of the tower and it’s equal, two sides equal. Other residents, the general public is all within the same vicinity of the tower. KERN: I’ll take a motion to move into executive session. I need a motion. \ AU: Can I have a motion to move into executive session. KRN: I need the motion, you give it to me. AU: I said yes, and -. KERN: Okay, so you’re making a motion? AU: I move to go into executive session. KERN: Second? ISHIBASHI: Second. KERN: All in favor aye? MEMBERS: Aye. KERN: All opposed? Seeing none, all right, we’ll move into executive session. What that means is everybody is going to clear the room for a minute. We’ll probably be like five minutes or so discussing with our Corporation Counsel some legal matters; and at that time we will call you back in. And so I appreciate your patience. Thank you. EXECUTIVE SESSION – The Commission went into executive session at 11:57 a.m. by a motion made by Commissioner Au, seconded by Commissioner Ishibashi, and unanimously carried by a voice vote of all Commissioners in attendance. The Board came out of executive session at 12:10 p.m. KERN: I’ll reconvene the Commission meeting. All right, currently we have a motion on the floor to deny standing for a contested case hearing. And so at this point in time we need a second. Is there a second? Going once, going twice, going three times. There is no second to the motion, it fails, crashed and burned. But we will need to make a decision whether to grant or not to grant. So I need a motion. MOSES: I make a motion to grant standing. KERN: And for what reason? MOSES: Due to that, due to his interest is clearly distinguishable from that of the general public. KERN: Is there a second on that? AU: Second. KERN: Okay, discussion anyone? Raylene? 19 EXHIBIT B MOSES: Yes, Chair. It is distinguishable due to his proximity regarding the health concern as far as emissions and aesthetic, more so the aesthetic. KERN: Okay. So we have a motion and it has been seconded, and we had a little discussion. Any other discussion? Seeing none, Jeff. DARROW: Thank you, Mr. Chairman. The motion before us is to grant standing for a contested case to Jay Fischer. With that I’ll take the motion. Commissioner Moses? MOSES: Aye. DARROW: Commissioner Au? AU: Aye. DARROW: Commissioner Ishibashi? ISHIBASHI: Aye. DARROW: And Mr. Chairman? KERN: Aye. DARROW: The motion passes four to zero. MECKLENBURG: So per the rules, for the Commission’s benefit, after establishing the parties to the proceeding, now the Commission may either proceed with the hearing today or continue the matter to a more appropriate time and date. And, Mr. Chair, if you’d like to at this time, you can set the dates for the contested case, what is now a contested case hearing. KERN: So, Mr. Fischer, you’ve been granted standing for your contested case. I don’t think that we’re ready to do that today. So what we’d like to do, if it pleases the Commission, I’d like to move th the hearing date to, not move it, but make the hearing date Thursday, October 6, and we’ve got some other deadlines in there. So Wednesday -. Okay, the chairperson of the Commission, one of its members, or a hearing officer duly appointed and designated, shall preside at the hearing. These are potential dates that we’ve got to make a decision on as a Commission, and we also have to make a decision on whether we’re going to hear the case or whether we’re going to put it out to a hearings officer. MECKLENBURG: You might want to decide that first. KERN: So let’s decide that first -- thank you, Julie -- whether we’re going to hear the case or a hearings officer. MECKLENBURG: For the benefit of our new member, the rules provide that you can appoint a hearings officer to hear the case or the Commission can hear it yourselves. You can also appoint any other person as the hearings officer. Commissioner Au. AU: Do we need a motion, do we need discussion -? KERN: Yeah, a motion on whether to hear it ourselves or to get an outside hearings officer; and then that will be seconded. 20 EXHIBIT B MECKLENBURG: Yeah, I’m sorry. To clarify, Rule 4-4 states that the chairperson of the Commission, one of its members, or a hearing officer duly appointed and designated, shall preside at the hearing. So you can make a motion as to who will preside at the hearing. AU: I make a motion for this Windward Planning Commission to be the hearings officer for the granted contested case of Mr. Fischer. ISHIBASHI: Second. KERN: Okay. Any discussion? I think that makes sense to hear it has a Commission; and that would be my choice as well. Julie? MECKLENBURG: And that would be with your Chair presiding? AU: Yes, with our Honorable Chair presiding. MECKLENBURG: Okay. AU: So I do have a question for you, Julie. We’re in discussion now or we do the -? KERN: We’re in discussion regarding that motion. th AU: That motion. And then on October 6 we will talk to the applicant as well as the -? th KERN: Not quite yet, possibly October 6. First we need to see whether we’re going to see the case or not, which is what the motion is now. That will get done. And after that I have some potential dates that would work that we can put out there and vote on that, whether we agree with those dates. MECKLENBURG: So if the Chair is going to be the presiding officer then he would set those dates. If you instead determine that you’re going to have someone else as the presiding officer or the hearing officer, then that hearing officer would decide. So first we address the matter of who is going to be the hearings officer. AU: Okay, well, what I’ll do is I’ll clarify my motion. KERN: Yes. th AU: I make a motion for this body, Windward Planning Commission, to hear on October 6 the granted contested case of Mr. Fischer with our Honorable Chair -. KERN: As the presiding officer? AU: As the presiding officer. KERN: Do you agree to that, second? ISHIBASHI: Second. KERN: Okay. Any discussion? AU: Yeah. You know, we’re erring on the side of caution. And, you know, I think this is good, what we’re going to do, we’ll hear it out between everybody. And, you know, whatever the decision is, I think that will be good. 21 EXHIBIT B KERN: Okay. Seeing no other discussion there, Jeff? DARROW: Thank you, Mr. Chairman. The motion before us is for the Windward Planning Commission to hear the contested case with the Chairman Kern as the presiding Officer; and this will be held on October 6, 2011. With that I’ll take the roll. Commissioner Au? AU: Aye. DARROW: Commissioner Ishibashi? ISHIBASHI: Aye. DARROW: Commissioner Moses? MOSES: Aye. DARROW: And Mr. Chairman? KERN: Aye. DARROW: The motion passes four to zero. KERN: Okay. And now we’re going to set a couple of dates, important dates, for both the parties, the applicant and the intervenor. So you’re going to want to write these down. Is the applicant still here? MECKLENBURG: He’s on his cell phone. SUNG: Yes? KERN: Okay, just to bring you up-to-date if you were not aware. Standing for contested case has been granted. We will hear it as a Commission. I’ll be the presiding officer on that. It will be done on thst Thursday, October 6. And then the deadline of Wednesday, August 31, is the deadline to submit th exhibit lists, and exhibits, and the witness list. Okay? Friday, September 16 is the deadline for objections to exhibits and witness list. FISCHER: Again? Objection? KERN: Is the deadline for objections to exhibits or, and/or witness lists. And -. MECKLENBURG: Yeah, I would suggest if you need a copy of Rule 4 of the Planning Commission’s Rule, that’s the contested case procedure that you’ll need to follow in terms of the contested case -. But, so you’ll have the opportunity to present your case with exhibits and witnesses and also to respond to the exhibits and witnesses of the other party. KERN: Okay. AU: I got a question. I just want a quick question, Mr. Chair? KERN: Commissioner Au, yeah. th AU: So we’re pushing, we’re going to be doing this on October 6; and this is the procedures. We have to give everybody enough time to do everything, is that correct? 22 EXHIBIT B KERN: Yeah. AU: Okay. I just wanted to know why it’s going to be two months from now, about a month, well, two months from now. KERN: Probably a month is just too short. AU: September, yeah, okay. MECKLENBURG: Yeah, we need to provide the parties ample time to provide their exhibits and basically make their case and as well to respond to the other party’s assertions, and also time for this Commission to receive those documents ahead of time, ahead of the hearing so that you can fully consider each of the party’s positions. So that’s why just kind of working ahead. It’s more feasible to do it in two months, rather than the next meeting. KERN: And since this is done, do we actually have to formally continue the application, the agenda item? DARROW: The last motion takes that -. MECLENBURG: Yeah, he kind of had two parts to that, and already continuing to August, sorry, th October 6. So it’s already taken care of. DARROW: Mr. Chairman. KERN: Yes. DARROW: Just for your information for everybody, the Planning Department will be sending out a letter to each of the parties explaining the dates for those, for the submittal of the list, as well as the time to rebuttal, and the next hearing date. Thank you. KERN: Thank you very much for that. So that agenda item is pau for now. Thank you all for coming up. The discussion ended at 12:19 p.m. Respectfully submitted, Sharon M. Nomura, Secretary Windward Planning Commission 23 EXHIBIT B