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HomeMy WebLinkAbout2012-02-02 Windward Transcript Graphic WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT FEBRUARY 2, 2012 GRAPHIC IMAGES HAWAI‘I, INC. A regularly advertised hearing on the application of (formerly FINANCE HOLDINGS, LTD. and TRI-ELECTRIC, INC.) AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 99 116 (REZ 840) was called to order at 9:07 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 Raylene Moses STAFF PRESENT: Ivan Torigoe (Deputy Corporation Counsel), B. J. Leithead Todd (Planning Director), Daryn Arai (Planning Program Manager), Phyllis Fujimoto (Staff Planner), Maija Cottle (Staff Planner), Jeff Darrow (Staff Planner), Kelly Gomes (representing Chief Engineer from 9:36 a.m.), and Sharon Nomura (Secretary) And approximately 17 people from the public in attendance. ABSENT & EXCUSED: Stephen Ono APPLICANT: GRAPHIC IMAGES HAWAI‘I, INC. (formerly FINANCE HOLDINGS, LTD. and TRI-ELECTRIC, INC.) AMENDMENT TO CHANGE OF ZONE ORDINANCE NO. 99 116 (REZ 840) Request to amend Conditions C, H and I of Ordinance No. 99 116, which amended Ordinance No. 96- 159, which rezoned approximately 7.402 acres from the Single-Family Residential–10,000 square feet (RS-10) district to the Neighborhood Commercial–7,500 square feet (CN-7.5) zoning district. The amendment to conditions relates to a 5-year time extension to secure final subdivision approval, timing of installing drainage improvements, and timing of installing roadway improvements along Kahaopea Street. The properties are located on the southeast side of the intersection of Kanoelehua Avenue (State Highway 11) and East Kahaopea Street, Waiākea Homestead House Lots, South Hilo, Hawai‘i, TMK: 2-2-044: 003, 031, 032, 035 and 037. KERN: First item on the agenda, applicant Graphic Images Hawai‘i, Inc., amendment to Change of Zone Ordinance No. 99 116 (REZ 840), request to amend Conditions C, H and I of Ordinance No. 99 116, which amended Ordinance No. 96-159, on TMK: 2-2-044: 003, 031, 032, 035 and 037. So with that, we’ll go to staff’s presentation. Maija? COTTLE: Thank you Mr. Chairman. Good morning everyone. COMMISSIONERS: Good morning. 1 EXHIBIT A COTTLE: And, welcome back, Commissioner Domingo. It’s good to have you here. DOMINGO: Good to be back. COTTLE: We missed you. Before I go into the presentation, I just want to bring your attention to a few items of testimony that have been submitted. Exhibit 11 and Exhibit 12 are letters from Stephanie Salazar and Russell Doi. And in those letters they question whether or not it was appropriate for the Planning Department to accept this application on behalf of the Planning Commission. The reason they are questioning that is because not all of these properties are owned by the applicant, Graphic Images. There is a road lot identified as Parcel 3 that is owned by the Margaret Hirose Trust. We did not get authorization from the Hirose Trust because there are no living successor or trustees to get authorization from. So the Department felt that it was appropriate in order to preserve the existing entitlements that were granted to the original applicant to go ahead and accept the application and move forward with its processing. And I don’t know if the Director wants to add any more to that or -. KERN: Madam Director? LEITHEAD TODD: Yes. When this issue came to my attention we kind of looked at it in terms of the fact that the Trust has not, there has been no activity to name who the beneficiaries of the Trust are, it’s a very small piece of this ordinance. The Graphic Images is not going to be using that property or doing anything with it. And I felt that it was appropriate to allow this to go forward because in the absence of someone speaking legally on behalf of the trust moving this forward preserves the property value of the trust, cause as most of you know when you have a rezoning it increases the value. If at some time in the future the potential beneficiaries actually get action to be legally recognized, they can petition to have the property rezoned back to its former classification. But at the time that this was originally done it was done with the consent of the then trustee for this particular piece of property. It also became a problem that do you hold up or prevent the property owner of the other parcels from seeking amendments which applied to their four pieces of property because the potential beneficiaries of the trust have not sought to get any kind of legal declaration done as to who actually is the beneficiary who can speak on behalf of the Trust. So I’m trying to weigh all of those equities. I thought it was best to allow this to proceed and bring it before the Planning Commission, and then ultimately in front of the County Council for a determination. And then at some point I guess if the beneficiaries are determined, they can then make a decision as to what they, whether they want to develop their property or whether they want their property to go back to its former classification. KERN: Any questions for the Director? Commissioner Domingo. DOMINGO: I can understand and appreciate what the Planning Director has just stated. But I’m concerned that in the future, in any case if I am -. I live in Hamakua and there are certain residential lots that I have, and there are parcels, overhead parcels between me, my residential lot, and the highway or the driveway going to the parcel. Would you folks go ahead and also rezone or take any land use action on that property which is not totally owned by me or those surrounding property owners? LEITHEAD TODD: Well, this is a situation in which at the time of the original action there was a trustee and the trustee consented to this action and to the rezoning. Since then both the trustee and the 2 EXHIBIT A beneficiary named under the Trust have passed away and no activity that I am aware of has named who’s the successor/beneficiary. There has been no legal determination. So when this came forward, in the absence of any legal determination of someone that can actually speak on behalf of the Trust, I thought the best action was to allow this to proceed because it preserves the potential value to the beneficiaries. Otherwise, what you basically end up having is the applicant would then have to go back and initiate a rezone of their properties without this piece in it; and the time and effort that that would take really puts them at a disadvantage. And so it was just trying to weigh the equities in terms of this kind of unusual situation. Because if at some point in the future the beneficiaries are determined, they can then do a petition to have their property downzoned if that’s what they want. But that’s kind of an unusual circumstance. But I’m just trying to preserve what I think is at this point, in the absence of someone to speak legally on behalf of the Trust, to try and preserve the trust’s assets. DOMINGO: You know, I’m not, I’m not trying to be a hindrance to us going forward and taking action on this particular application. But what I am concerned is from the legal aspect in the future if anyone would come before the Planning Director and apply for the same kind of action that we’re contemplating taking now. Would we be able to justify that in any case at any time? I think Corp. Counsel should be able to answer that. I would like to hear from him. KERN: Mr. Torigoe, would you like to speak to that? TORIGOE: Thank you, Mr. Chair. Actually this is a very unusual situation. I don’t know that we’ve seen this before the Planning Commission before. And I really, I think we need to hear positions from, you know, interested persons and their attorneys if they have any. I’m not in a position to, you know, just make that determination on my own. KERN: Thank you, Mr. Torigoe. Anything else? Madam Director? LEITHEAD TODD: If I’m hearing Corp. Counsel correctly, what we may be looking at is asking the applicant to perhaps submit a memo, a memorandum of law or something to the Commission stating their position on why this should go forward, if I’m hearing Corp. Counsel correctly. TORIGOE: Well, that is one option. The matter is on the agenda now already, and we’ve opened the item. So public testimony is also in order, so you could allow that also. KERN: Commissioner Domingo. DOMINGO: Just one question to clarify matters. Does the Pplanning Department have any documentation as to the wishes of the Trust at that time when she was living to indicate that we can go ahead and process the application involving that Parcel 3? KERN: Madam Director? LEITHEAD TODD: Maija, our files indicate that at the time of the original application, right? COTTLE: At the time of the original application all five properties were owned by Tri-Electric, which was owned or the president of Tri Electric was William Hirose. And so he owned all of those 3 EXHIBIT A properties. Then in 1999 when they came in for an amendment we did get authorization from Florence Doi who was the successor/trustee of the Margaret Hirose Trust. So the last authorization was in 1999. And we do have that letter, we could provide it. KERN: Thank you, Maija. Any other questions for the Planning Director? Seeing none, Maija, we’ll go ahead and continue with the staff presentation, please. Thank you. COTTLE: Okay. Thank you. Just give me one second. All right. If I can direct your attention to the screen. The subject property is located in the South Hilo district. You can see the property outlined in black in the middle of the slide. You have Kanoelehua Avenue running in a north-south direction to the middle of the slide; and Kahaopea Street running east-west. The subject property is located in the southeast corner of that intersection. The current zoning is CN-7.5, which is shown here in the light pink. And the surrounding zoning is Single-Family Residential-10,000 square feet, which is shown in the yellow. And then just kind of caddy corner to the property across the intersection is CN-10 zoning which is shown in the darker pink. And that’s the location of Subway. Baskin and Robbins is located right here in this corner. You can see that the property is made up of five parcels. The road lot we were just discussing is located right in this area. This is the General Plan designation map for the property. The entire property and surrounding area is in the Low Density designation. And, again, just opposite of the intersection is High Density which is shown in red. And then further to the west is Medium Density Urban, which is shown in the orange. This is an aerial photo of the property. I didn’t outline it on the slide because the configuration was a little unique. But the properties are located in this area here. You can see the highway on the west side. There is a floodway that runs along the makai boundary of the property in this general area here. So the applicant is requesting to amend three conditions of the existing ordinance, 99-116. Condition C requires that they secure subdivision approval within five years. That’s the standard. And then they did get one administrative time extension. So they’re asking for another five-year time extension to secure final subdivision approval. Condition H currently requires that they install drainage improvements at final subdivision approval. They are now requesting to delay the installation of these improvements to final plan approval or certificate of occupancy, whichever occurs first. And then Condition I is similar to H. Currently it requires that they install improvements, including drainage improvements, curb, gutter and sidewalk improvements along the property’s Kahaopea Street frontage; and they’re requesting to delay that installation of improvements to certificate of occupancy. This is a site plan showing the applicant’s conceptual development plan. The highway is located at the bottom of the slide. The project would get right-in access only into the property. And then the main entrance would be an extension of Awapuhi Street, located here, for ingress and egress. You can see there are five commercial structures. One large one here, here, here, here and all the way to the south here. And this is a view of Kahaopea Street looking towards the highway. You can see the intersection up at the top here. And then the property is on the left side of the slide. This is the existing access easement onto Kahaopea Street. This is a view again of Kahaopea Street looking makai. The property is on the right side over in this area here, and then another view looking towards the intersection of the highway. This is Awapuhi Street here. So the proposed project entrance would 4 EXHIBIT A be located just across from there, and a view of the intersection looking towards the existing access easement, and then this is the highway looking Puna bound. The Planning Director is recommending a favorable recommendation for the time extension request, which was Condition C; and an unfavorable recommendation for the request to amend Conditions H and I. And basically the reason we’re not supporting the amendment request for Conditions H and I is that we think it’s more appropriate that the conditions remain as they are now, that the drainage improvements and roadway improvements be installed prior to subdivision. This way the development can be done in a more comprehensive way, rather than having the property be subdivided and sold off to multiple landowners that then have to come in and do the drainage or roadway improvements more on a piecemeal basis. And with that, I want to just mention a couple more correspondences. The applicant was originally represented by Nakamoto, Okamoto and Yamamoto. You should have a letter stating that they are no th longer representing the client. And then you should have another letter of January 27 from Yeh and Moore letting you know that they are now the client’s representative and addressing some of the issues that were raised in the Doi and Salazar letter. Are there any questions? KERN: Any questions for staff? Commissioner Domingo. DOMINGO: Is there a floodplain on this property? COTTLE: The property is located within a floodplain, yes. There is also a floodway running along the makai edge of the property. It’s a natural floodway. DOMINGO: Yeah. I understand that there’s a possibility that that floodway will be diverted or part of it would be filled so that they can go ahead and build one of the structures. COTTLE: Yeah, the applicants represented in their application that they do intend to place some fill on the property in order to develop the property; and some of that fill may be in the floodway. DOMINGO: Your drawings do not indicate what part of the property is in the floodway and what building would be situated on that particular corner. Do you have anything showing that? COTTLE: I don’t but we could provide that. I don’t at this time. DOMINGO: Thank you. COTTLE: And part of the reason why we didn’t provide anything is that FEMA just did a remapping or reevaluation of the area, and they are in the process of releasing new maps for this particular area. So those changes haven’t been adopted yet by FEMA, but I could provide the current flood boundaries for you to see. KERN: Any other questions for staff? Seeing none, thank you, Maija COTTLE: Okay. 5 EXHIBIT A KERN: Okay, can I get the applicant or their representative to please come forward. Good morning. I’ll get you all to raise your right hands, whoever is going to speak today. Do you swear to tell the truth today before the Windward Planning Commission? TESTIFIERS: I do. KERN: Very good. For a matter of process, I think it would be important to look at the roadway lot, or the lot that is in question first, maybe speak to that first and see if there’s a, how that could be resolved; and then we’ll move on to the rest of it. If you wouldn’t mind? YEH: Sure thing. Thank you. Mr. Chairman and Members of the Commission, good morning. KERN: And give me your name and address. YEH: And then my name is Thomas Yeh, I’m the legal representative for the applicant. You know as the staff noted, you know, this is somewhat of a unique situation. What had happened is the original applicant, of course, had owned all these properties, including that small road lot which is really, if you take a look at it from a functional standpoint it’s a total of, I think, 4500 square feet, 30 feet in width. It doesn’t really have any real practical use to it. And then what happened, I guess, is when Tri- Electric owned the property it then had a mortgage or something on the property, and then Graphic Images thereafter acquired the four larger lots. So we take a look at it from the standpoint of an owner’s perspective. If I was to buy one of those lots, which could have been done because there were already four separate lots, and you buy those entitlements with it, and you also then seek to obtain a time extension and still be willing to comply with all the various conditions of the zoning ordinance, I think as a landowner I would have the expectation that I would be able to do that if an absent, the joining of all the other lot owners. Now in this particular instance we have the owner of all the four real developable properties seeking the extension of time and being willing to comply with whatever conditions the County imposes that are appropriate. So from a, you know, just looking at it from a standard due process kind of standpoint, you know, it’s pretty clear to me that as a landowner having the right under the Zoning Code as a property owner to apply for the rezoning extensions, time extensions, that the Code does give you a right to do that. It doesn’t prevent you from getting that zoning extension, whatever applicable conditions apply to those properties that are appropriate to that development. There’s nothing that prevents you from doing that, whether we’re in the context of a rezoning, or time extension, or even a new zoning application for that matter. And that’s how we’re looking at it at this point, is because the road lot that we’re talking about is not a necessary component of this development, it’s not going to be affected by it. There has been no objection. The previous consent was given by the prior trustee. Some of the beneficiaries to that trust do have notice of this proposed extension and have not issued any objection. And so, you know, from a legal standpoint, yes, we certainly believe that we’re entitled to move forward with this extension request. Whether it’s in the context of this extension request, a new zoning application, they are separate parcels, not part of the same property. So that’s kind of the analysis that 6 EXHIBIT A we have on that issue. And we would certainly ask today that the Commission move forward, send this on up to the Council without getting hung on some of these practical, I mean, the issues that have been raised because we don’t see them as real issues at this point. Thank you. KERN: Thank you. Any questions for Mr. Yeh? Commissioner Domingo? DOMINGO: Yeah, Mr. Yeh. And the history of this indicates that Hirose Nursery came in for a rezoning of the entire parcel which included Parcel 3; and then thereafter, after acquisition of that zoning, then Graphic Images bought the property, but not Parcel 3. YEH: And maybe Mr., you know, Higashi can speak to that history. HIGASHI: I’m Roland Higashi. KERN: Please use your microphone, and name and address please. HIGASHI: Roland Higashi. I’m president of Graphic Images. The sequence of this was Finance Factor foreclosed on this, on the mortgage; and Graphic Image bought the parcel from Finance Factors. That’s the sequence of this transaction. DOMINGO: That total, all that parcels, the -? HIGASHI: We did not buy the roadway lot. DOMINGO: Parcel 3 including? HIGASHI: Was not included under the mortgage. Originally when they advertised they put Parcel 3; but later they informed us that Parcel 3was not included in the sale and in the foreclosure. But we did apply for the rezoning for the entire, including Parcel 3. It seems to me that Parcel 3, it seems like it was a roadway lot to the back lot that provided access to the back lot, if you look at the map carefully. Otherwise their back lot would have been landlocked. YEH: Right. In other -. DOMINGO: And that back, the so-called back lot is now owned by Graphic Images also? HIGASHI: Graphic Images, that’s correct. YEH: In other words, what would have probably happen is when Finance Factors got their mortgage interest on the properties, through some oversight or not, you know, it didn’t include that road lot as part of that mortgage. So, therefore, when they foreclosed on the property they didn’t have the right to sell that lot. So it was a separate -. DOMINGO: You know, that was the question that I was leading to. Why have not Graphic Images sought to acquire the property? 7 EXHIBIT A HIGASHI: Yeah, we had no interest in that property. Because of the size and shape it was not economically feasible for us, and it was in a trust. So our acquisition was strictly from Finance Factors. YEH: And I think what BJ has probably correctly done is, you know, tried not to cut it out of the proposed extension just so that there’s no derogation or interference with whatever rights that parcel has. I mean in theory the Council could as with any other similar issue rezone or extend the time for the rezoning for the four parcels we’re talking about, cut out that road lot because it’s not a formal part of this application. Then, of course, you know, the time extension wouldn’t apply to that parcel so -. I mean that’s always, that’s a possibility also. But we just don’t want that kind of interfering with the ability of these four parcels to move forward. KERN: Commissioner Domingo DOMINGO: Should the conditions be approved, how would you folks handle the floodplain and the building of that specific structure? KERN: What I’d like to do is kind of separate this lot issue out first. DOMINGO: Okay. KERN: We’re kind of going to make it a two-part ordeal, if you will. DOMINGO: Okay, sure. KERN: Would you mind holding that question? DOMINGO: I’ve got no problem, I’ve got no problem. KERN: Okay, thank you. Any other questions regarding this lot issue? .Lot 3 is in this application. YEH: Well, that’s a very good question. Because when Graphic Imagines applied for the rezoning or the time extension, I should say, it did not include Lot 3. KERN: Okay. And the Lot 3 got put in there for the reason of -? YEH: I think the Planning Department felt it would be a good idea to kind of include it as part of the analysis. LEITHEAD TODD: It’s part of the original ordinance -. YEH: Right, that’s correct. LEITHEAD TODD: In the description, which is why it’s part of this. It’s not that the applicant asked for it. It’s that if you look at the title of the ordinance and the description and the references to the various parcels, it’s included. 8 EXHIBIT A YEH: So one of the, one of the examples we gave is you can actually have one parcel and have two different zonings on that parcel. So, in other words, if I had a 100-acre parcel and I wanted to rezone half of it to a Neighborhood Commercial and leave the other 50 percent Residential, we could come in and seek that kind of a rezoning application. So the point to be made there is that you can have parts or portions of any parcel; and in this instance they are in fact separate parcels carrying different zoning designations. So that’s another illustration of how, you know, what we’re proposing to do is certainly appropriate. KERN: Any other questions regarding this lot issue? Seeing none, if you gentlemen can have a seat. I’m going to afford some public testimony specifically for this lot issue. And then we’ll get you all to come back up and move forward on the rest of the application. So I’m going to use the list that I have here. If you choose not to come up and give testimony based on this part, you will have an opportunity to give testimony based on the second section of this application, so to speak. So, Sandra Song, Stephanie Salazar, and Russell Doi, any of you would like to speak. And this is, please, specifically for the roadway lot and -. SALAZAR: Lot 3? KERN: Lot 3. SALAZAR: Okay. My name is Stephanie Salazar. I’ve lived on the property next to the old -. KERN: One second. SALAZAR: Oh, you want all three of us here? KERN: I’m just going to -. Yeah, you can all come up, whoever would like. I need to swear you in first. And then, just procedure, thanks. Will you, all three of you, raise your right hand today. Do you swear to tell the truth today before the Windward Planning Commission? TESTIFIERS: Yes. KERN: Okay, name and address and you may begin, or area you represent if you don’t feel comfortable giving your address. SALAZAR: Okay. My name is Stephanie Salazar. I live at 78 East Kahaopea Street in Hilo. KERN: Okay, you may go forward. SALAZAR: Do you want me to go ahead? KERN: Yes. SALAZAR: Okay. I’ve lived at the property next to the old Hirose Nursery, which I’ll refer to as the Doi property or Lot 30, for more than 20 years. As far as the roadway lot, the reason I would bring it 9 EXHIBIT A up is because it was in the application. And William Hirose died in 2002. His sister Helen Hirose died in 2004. And when this came up for, I think the renewal in 1996 Florence Doi, a beneficiary of the Margaret Hirose Trust, testified against these, this application. Florence Doi died in 2009. Prior to that Roland Higashi asked her if she would give up Roadway Lot 3 and the easement and she said no. In fact she went to her attorney, Roy Nakamoto, and asked her, asked him to see if he could get the titled clarified; and he kind of said, well, don’t worry about it because nothing is ever going to happen to that land, it’s just going to sit there. So she didn’t pursue it at the time. And this is, Florence Doi died in 2009. KERN: Thank you. Any questions for the applicant? Seeing none, thank you. Thank you for sticking to the point of the roadway lot. DOI: Yes, my chance now? KERN: Yes. We’re dealing with a little paperwork here. Hold on one second real quick. Okay, thanks. Yeah, so Russell Doi? DOI: Yes. KERN: Yeah, give me your name and address or area you represent and you may begin. But please do stick to the roadway lot issue. DOI: Yeah, my name Russell Doi. I live over there, in, by the Nursery. About 50 years I’ve lived there. And I was trying for get the roadway lot and then -. My aunty work for that, the other lawyer, Nakamoto or whatever, who when bow out. And she told me I no can get ‘um, the land. But bullshit because when I look at the whole situation, what when happen, how they make all the lawyer stuff -. And now Sandy when help us and then they got to bow out because they know they doing wrong was, yeah? Otherwise that Nakamoto guy they’d still be here yet today. And my aunty she the secretary for them and she do rotten stuff, like change the power of attorney when my mother was dying. And that’s kind of like why cripple -. Cause the …(expletive) land and all these…(expletive) greedy -. KERN: Please try to watch your language if you would -. DOI: Sorry but -. KERN: Out of respect, yeah? DOI: You know, and kind of like bullshit plenty. But lucky Sandy help us. KERN: Thank you. Any questions? DOI: And the flood zone too, get the flood zone, get one culvert behind, and the thing fill up with water in the back plenty times -. KERN: We can speak to that on the next round. Thank you. Any questions for the testifier? Commissioner Domingo. 10 EXHIBIT A DOMINGO: I just have a question for Stephanie. Having, if in any way possible having resolved that Parcel 3 issue, what do you think about the project in itself with this rezoning? SALAZAR: In general the whole rezoning thing? DOMINGO: In general, in general. SALAZAR: In general the whole rezoning thing? DOMINGO: Yes. SALAZAR: I’ve written a letter about it, and I have some issues to raise about it. But the Chairman asked us to stick to No. 3 -. DOMINGO: Okay. SALAZAR: So I’ll talk about that later, if that’s okay. DOMINGO: Thank you. SALAZAR: Thank you. KERN: Thank you. Thank you. Any other questions? Seeing none, name and area you represent. SONG: Good morning. KERN: Name and area you represent. Thanks. SONG: Good morning, Mr. Chairman and Members of the Commission. I’m Sandra Song and I’m here representing Stephanie Salazar and Russell Doi. And this roadway issue came up because I opened my mouth this morning to Amy Self who is the attorney for the Planning Director. And she talked to the staff, and they raised this issue. And I heard Mr. Yeh this morning give his arguments and in due respect -. And I would like to note Mr. Yeh just came in the picture so he’s new to this case. And I heard Ms. Leithead Todd give her analysis. But in due respect, when I first started practicing law I was told when you have the law pound the law, when you have the facts pound the facts, and when you have neither pound the table. And all I’ve heard today is pounding the table. The Zoning Code says what you’re supposed to do when you apply for an amendment. Section 25-2- 42 specifically says that any application for an amendment must be submitted by a property owner, by the property owner, or any other person with the property owner’s consent. The Ordinance 99 116 involves five separate parcels of property. The property owners that are affected by Ordinance 99 116 are Graphic Images and the Hirose Trust. There are two property owners. This application required consent by two property owners. Now although Mr. Yeh may say this application is only part of it, if this Commissioner and the County Council takes any action that affects Ordinance 99 116 it is going to 11 EXHIBIT A affect the interest of the Hirose Family Trust property; and they did not consent, the Trust did not consent to this application. Now although they say they don’t know who the trustee is, Florence Doi was the trustee of the Trust, and Florence Doi did pass away. However, there is still another family member that’s alive, Hilda Morishita that could be the trustee. And even if she refused to be the trustee under the State Law, under Hawai‘i Statutes, there is a provision where any interested party can go to court and get a trustee appointed. So if Graphic Images really wanted to file this application properly and couldn’t find a trustee, they could go to Court and get a trustee appointed to consent to this application. This was not done. And I might also point out that before Mrs. Doi died I did represent her, and Mr. Higashi’s associate did approach me about this parcel; and Mrs. Doi didn’t want to participate, she didn’t want to do anything about it while she was trustee. I also would like to point out that Mr. Domingo’s concern is a legitimate concern. Because if this application is allowed to proceed without all the owners’ consent, what’s going to happen the next time when there are seven property owners and one out there just doesn’t sign off? Are they going to allow the application to go through? Because that one owner could have a significant interest. That one owner might have been one Hawaiian that’s going to be ousted from the property The Department has been consistent in requiring all owners to sign consents. When I had to do a subdivision application for Stanley Hara’s family, there were so many property owners I had to run around all over and get consent of property owners so we could subdivide major property into three, just three lots. Actually it was a consolidation and resubdivision, just to reconfigure the ownership. And I know of no applicant that doesn’t run around and do that, to make sure that all the owners participate. I submit to you that the Department shouldn’t have even accepted this application this way. And, yes, this is a problem, but it’s not an insurmountable problem. It’s a problem that the applicant should have dealt with. I won’t address any of the other issues in this application at this point. But I seriously suggest this Commission is the gatekeeper, and you hold an important role because you have to make sure planning is done well. That’s why you’re the gatekeeper, to make sure we’re doing things properly in this County and we don’t turn into Honolulu. One of the things that needs to be done is owners must agree, and must consent to applications; and this wasn’t done in this case. The Department cannot isolate out the roadway parcel, nor can the Department, this Commission or the Council really proceed with this application without all the owners agreeing. Thank you. KERN: Thank you. Are there any questions for Ms. Song? ISHIBASHI: I got one question. KERN: Yeah, Commissioner Ishibashi. ISHIBASHI: Thank you, Brother Chair. In regards to the replacement of the trustee, we’re working on that, or not even -? 12 EXHIBIT A SONG: Nobody has asked about it. But, I mean, I’ve done it in other cases when there are no trustees where you go to court and you get a trustee appointed. That can be done. KERN: Thank you. Any other questions? Seeing none, thank you. You all may have a seat. Madam Director would you like to speak on what Ms. Song said regarding being able to accept the application? LEITHEAD TODD: Well, I think at this point Ms. Song has raised some legitimate concerns based on the Code. And we should kick it to Corp. Counsel and get an opinion because, I guess particularly since Ms. Song has raised the issue of whether you could have somebody appointed to represent the Trust and possibly the landowner has to submit an entirely new application for just these four parcels. So I think that this matter should be deferred, and we should get Corporation Counsel to weigh in on the application and determine whether it can proceed. And, we’ve never had this actually occur before. But the problem is if you look at the description in the ordinance it refers to all of the parcels. So I don’t know that you can come in and apply for an extension just on behalf of four out of the five. And so I would prefer that we defer the matter, ask Corporation Counsel for an opinion on it, and then let the applicant and the interested party know what the decision is. KERN: Okay. Can I please get the applicant/representative to come forward. Before we speak to the possibilities that we have here, could we clarify who Helen Doi is. I have a letter here from her in 1998. YEH: Helen, and I apologize because I am kind of coming into this relatively cold. I think Helen Doi was one of the original trustees of that Trust that owned Parcel 3. KERN: So the letter basically serves as document consenting to the proposed amendment of the referenced ordinance -? YEH: Correct. KERN: By Finance Holdings which was back in 1998? YEH: Which she was at that time, yes. KERN: Okay. So would you like to speak to the matters at hand? YEH: Yeah, thank you. Yeah, and I understand the Planning Director’s concern. You know, as we’ve articulated, basically, you know, we shouldn’t be held hostage to zoning conditions which really apply, for which we’re seeking only for the parcels in question. You know, from a legal standpoint we’re able to seek a zoning amendment as to the four parcels in question. As a practical matter that’s what we’re doing here. We’re not seeking anything else. And let me just, if I may, let’s say for example, that the Commission decided to go forward with seeking a zoning amendment or extension for just these four parcels. What would remain is Parcel 3 would stand on its own. It still actually carries, it would still actually carry the zoning entitlements, until those were somehow rescinded or a vote, under the prior conditions. From a practical standpoint 13 EXHIBIT A nothing is going to happen. Now the owners of that property, whoever it is, have not come in and sought a time extension for that parcel. So it seems pretty clear to me that, you know, from both the functional, practical, as well as a legal standpoint, we are entitled to seek this extension of time, exclusive of Parcel 3. We didn’t come in seeking an extension for that particular parcel, but only as to the zoning entitlements that apply to the four parcels. So I do respectfully disagree currently with the Planning Director, but I understand that there is some hesitancy there. LEITHEAD TODD: Mr. Yeh -. YEH: Yes? LEITHEAD TODD: What I’m going to be asking Corporation Counsel is whether in an amendment to an existing ordinance the amendment can be made to just include the four parcels and to delete the disputed parcel where there is no property owner -. YEH: Understood. LEITHEAD TODD: Or whether it so fundamentally changes the existing ordinance that that can’t be done. So it’s not just a question of whether you can do a time extension for the five parcels with just the owners of four parcels or whether you can amend the original ordinance to just proceed with the four parcels and delete that fifth parcel from the original ordinance. And so it’s more than just, you know, that one issue. It’s you filed an application for four parcels, can the original ordinance be amended to just refer to those four parcels, you know, and that no time extension is granted to that fifth parcel? And it, kind of is it legal limbo because it does have that zoning but it doesn’t have a time extension to comply? And then the time extension conditions would only apply to the four parcels? So that’s the question we’re going to ask Corporation Counsel. Cause we’ve never, this is new territory. And it seems a little odd to me in the sense that normally you would want to preserve the interest of the Trust but you have someone who is probably a beneficiary of the Trust who is not interested in that and has not sought to seek that a trustee be appointed. So it’s a very strange situation but potentially repeatable. So we should probably weigh in on what do you do when you have an ordinance that originally, let’s say, had 300 acres and now through the passage of time the current property owner, the applicant has 250 acres out of the 300 and the other 50 is in legal limbo, what do you do? Can you proceed? Can you kind of bifurcate those four of it? So that’s what I’m going to be asking Corp. Counsel to take a look at. YEH: Yeah. And, you know, from a functional standpoint this is, in fact, like a request for an amendment to the Zoning Code that only applies to those four parcels, with the same kinds of conditions that would typically apply. So that’s how we would look at it. And, certainly, you know, from a timing perspective because, you know, there is a TIAR in place and those kinds of issues, we certainly want to try to get this issue resolved sooner rather than later. So if that’s going to be the wishes of the Commission -. Thank you. KERN: Are you agreeable to deferring? YEH: Well, I’m going to leave that to the Commission. I, you know, we still want to move on as stated. So, thanks. 14 EXHIBIT A KERN: Okay. Thank you very much. So point of clarification on process – if indeed this does get deferred, could you let us know how that would go, Madam Director, as far as which Corporation Counsel would take care of that, and will the applicant and the testifiers’ attorney, will they have a chance to weigh in on those? LEITHEAD TODD: Well, because this is an issue that applies to the Zoning Code and the application process, it would go to Corporation Counsel and probably go to the attorney who advises the Department, Ms. Self, for a determination on what you can do. And then I’m assuming she would take into consideration, since she’s here, take into consideration some of the issues raised. And both the attorney for the applicant as well as the attorney for the people who testified, Ms. Song, who was opposed, have an opportunity to communicate with Ms. Self and raise what they think the legal issues are. And then Ms. Self can advise my department as to what we should do, you know. And ultimately they filed an application, you know, I guess, and we processed it, you know. No guarantee that you get to the Council and with these legal issues still in limbo that the Council would move for the time extension. So I think we need to resolve that. KERN: And the fact of the TIAR, is there any -? LEITHEAD TODD: TIARS are only valid for a particular length of time. KERN: Yeah. LEITHEAD TODD: And so the problem for the property owner is that without a time extension and if he had to start all over again, the existing TIAR might not be valid. And they would have to then go and have a new one, and pay for a new one to be done. KERN: Which I believe that date is coming up. (Commissioner Au stepped out at this time.) LEITHEAD TODD: But I don’t think that that’s an issue; and that shouldn’t be the determination on whether this application moves forward or not. It should be purely based on whether the requirements of having all of the property owners apply is applicable or whether you can proceed to just amend conditions to a portion of the properties that were included in the original ordinance. KERN: Okay. LEITHEAD TODD: And so it, and I don’t think whether the life of the TIAR is really an issue and it shouldn’t be a factor in the decision. And I’ll leave that up to Ms. Self to take a look at the legal issues. KERN: Okay. Just lost one of our Commissioners. And we’re basically are at the impasse of looking for a motion to potentially defer. Is that right? TORIGOE: Yes. 15 EXHIBIT A (Commissioner Au returned at this time.) KERN: Do you want to speak to this, Mr. Torigoe? TORIGOE: Yeah, at this point if you want to have a motion to defer it seems clear what the Planning Director intends to do. I’d just also mention that, you know, I am here to advise the Commission. And so if the Commission has its own questions that arise from whatever Ms. Self may have to say, then the Commission can ask me for advice as well. KERN: Okay. So just for process clarification, if we have a motion now that comes up to defer and that motion fails then we still continue to move on with the application? Is that correct? TORIGOE: Right. KERN: Right, okay. So Planning Director? LEITHEAD TODD: And positive or negative if there is a vote on the application it then goes to the County Council with either a positive or negative recommendation. KERN: Right. LEITHEAD TODD: And then at that point I suspect the Council would kick it to Corp. Counsel for a legal opinion. KERN: Okay. So it would be good to get a motion to potentially defer right now. Mr. Yeh, yes? YEH: Yes, Mr. Chairman. You know, rather than put a great burden on the Commission in trying to wrestle with this, you know, we’re okay with deferring it. And we’ll try to work it out with Corp. Counsel and see what they come up with, and see if there is some alternative. So deferral is okay. KERN: I appreciate that from -. YEH: Thank you. KERN: Being a Commissioner. So if we could get a motion, we’ll see where that goes. Commissioner Au. AU: Thank you, Mr. Chair. I move to defer applicant Graphic Images Hawaii, Inc. KERN: To when -? YEH: Mr. Chairman, and I apologize for interfering while this motion is -. KERN: No problem. 16 EXHIBIT A YEH: We really do want to try to get this question resolved sooner rather than later. So maybe at least to phase this deferral until the next scheduled Planning Commission meeting? At least we can try to work towards getting some solution by then. KERN: I think that would be good, yeah, to have a timeframe on it. Would you -? st AU: Yeah. Defer to our next meeting which is March 1. KERN: Okay. Is there a second for that? DOMINGO: Second. KERN: Okay, any discussion? Seeing none, take the vote. Maija? st COTTLE: Thank you, Mr. Chairman. The motion is to defer this application until the March 1 hearing. Commissioner Au? AU: Aye. COTTLE: Commissioner Domingo? DOMINGO: Aye. COTTLE: Commissioner Ishibashi? ISHIBASHI: Aye. COTTLE: Commissioner Moses? MOSES: Aye. COTTLE: And Mr. Chair? KERN: Aye. COTTLE: Okay, motion passes five-zero. KERN: Thank you. I hope you all can work together to figure this out. It’s very interesting. Okay. The discussion ended at 10:02 a.m. Respectfully submitted, Sharon M. Nomura, Secretary Windward Planning Commission 17 EXHIBIT A