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HomeMy WebLinkAbout2012-05-17 Leeward Exh B - Mooers LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT MAY 17, 2012 GREGORY R. MOOERS (SSV 12-07) A regularly advertised hearing on the applications of was called to order at 10:15 a.m. in the West Hawai‘i Civic Center, Community Center, Building G, 74-5044 Ane Keohokālole Highway, Kailua-Kona, Hawai‘i, with Chair Geraldine Giffin presiding. COMMISSIONERS PRESENT: Geraldine Giffin, Thomas Hickcox, Wayne Iokepa and Thomas Whittemore ABSENT AND EXCUSED: Brandi Beaudet, Lani Bowman and Richard Nelson ALSO PRESENT: Ivan Torigoe (Deputy Corporation Counsel), BJ Leithead Todd (Planning Director), Daryn Arai (Planning Program Manager), Jeff Darrow (Planner), Maija Cottle (Planner) and Noriko Sauer (Commission Secretary) And four people from the public in attendance. APPLICANT: GREGORY R. MOOERS (SSV 12-07) Application for a Shoreline Setback Variance to allow an existing 82.4-foot long, 2- to 4-foot high wall built within the shoreline setback area to remain in place. The wall is situated along the makai boundary of the subject property, which is located on the makai (west) side of Puakō Beach Drive, Puakō Beach Lots, Lalamilo, South Kohala, Hawai‘i, TMK: 6-9-005:001. GIFFIN: Commissioners, we are now on Agenda Item No. 3. The applicant is Gregory R. Mooers. It is for a shoreline setback variance application, 12-07. Greg has submitted an application for a shoreline setback variance to allow an existing 82.4-foot long, 2- to 4-foot high wall built within the shoreline setback area to remain in place. Maija? COTTLE: Thank you, Madam Chair. The subject property is located in the Puakō Beach Lots Subdivision. The property is located on this slide in this general location here. This is a large overview of the area; you can see Queen Ka‘ahumanu Highway running in a north-south direction, then you have the Puakō Beach Lots area along the shoreline here. This is a close-up view; you can see that the Puakō Beach Lots are zoned Single Family Residential-10,000 square feet and that’s shown in the yellow color. The subject property is a little over half way down into the subdivision on the makai side of the road, and then you can also see that the area just makai of the lot is zoned Open, which is shown in the dark green. This is the General Plan map for the area; again, the subject property is on the lower left-hand side of the slide, outlined in black, and it’s in an area designated Low Density Urban, which is for a low density residential development. The area just makai of the property again is an area designated Open, which is shown in the dark green color. The applicant is requesting a shoreline setback variance to allow an existing 82.4-foot long, 2- to 4-foot high seawall to remain in place within the 40-foot shoreline setback area. The seawall was built sometime between December 1996 and September 1997 without proper permits from the County. 1 EXHIBIT B This is the certified shoreline survey for the property. The property is located on the right side of the slide, the sea is on the left side, and you can see the property line outlined with a solid line and then a double-dash coming down here and then along the bottom here. There is a County-owned public access; it’s a mauka-makai access from Puakō Beach Road to the sea just south of the subject property that is this area here. And then the rock wall that is the subject of this variance begins in this area and extends down to approximately this area right here where the red dot is. The certified shoreline is depicted in red, and it’s a little hard to see, but I’m just generally going to, if you can follow the cursor, I’ll show you the way; it follows the makai face of the seawall on the northern edge and then it bumps out a little bit towards the water, towards the sea along here, and then it comes back along the makai face of the seawall in this area on the south edge of the property. The Planning Department recently approved a shoreline setback variance and an SMA permit for an emergency repair to a portion of the wall; there was a storm event back in 2010, I believe it was, and it damaged the portion of the non-legal wall in this area, so we issued a variance to allow the landowner to reconstruct the portion of the wall in the south edge. And you can see that it was reconstructed in this alignment here. So this subject variance only deals with the wall from the northern property line down to where the new wall was recently rebuilt. This particular slide also shows the 40-foot shoreline setback line, that’s shown here in pink, as well as the owner’s dwelling and garage. This is an aerial overview of the property and the shoreline. It was taken in 2004, so quite a while ago, but it gives you a general idea of the shoreline in this area. This is the landowner’s house here. You can make out the County public access way, the mauka-makai access, right about in this area here, and then the existing seawalls to the south and to the north. The subject wall begins in this general area here and extends down to right about here. This is a view of the public access way looking towards the sea; the applicant’s property, or the landowner’s property, is on the right side of the slide, and you can see the portion of the new wall that was recently constructed. Again, this is the landowner’s property here. This is a portion of the new wall, and then you begin to see the wall that is the subject of this variance; it begins in this area here and extends north along the property line. Another view at the very northern edge of the wall – this is the wall here that’s the landowner’s wall, and then this is where it meets up to the northern wall. And then this is a view taken from the shoreline looking back at the public access way; the property is on the left-hand side of the slide, and this is the new wall that was recently constructed. Another view where the new wall meets the non-legal wall in this area here. And then along the north boundary of the property – this is the neighbor’s wall on the north side, and then this is the wall that’s the subject of this variance here, this is the landowner’s dwelling in the back. And then this is just a view of the shoreline to give you an idea; again, this is the north property owner’s wall, and the subject wall here. And a view looking south towards the public access way. The Planning Director is recommending approval of the variance with conditions. And I’d like to just discuss one of the conditions. Condition 3 -. GIFFIN: Hang on just a minute, Maija. COTTLE: Okay. Actually, before I go into Condition 3, I want to point out an exhibit that we recently handed out to you guys. The reports that were submitted to you were copied in black and 2 EXHIBIT B white, and one of our conditions refers to a pink line; and so the two pages of the exhibits you have, Exhibits 2 and 3, show the pink line that Condition 3 refers to. The pink line is on the Exhibit 3. So, Condition 3, the reason why we added Condition 3 was because the criteria for granting a variance, which are in HRS 205A-46(c) and your Planning Commission Rules, state that the Commission cannot grant a variance unless conditions are imposed to maintain safe lateral access along the shoreline or to adequately substitute for its loss. In this particular area, according to the applicant’s engineering report, coastal engineering report, most of the time the shoreline is accessible; people do go there to dive or to fish or just to walk along the shoreline in this area. But according to the engineering report, there are times during high high-tides or storm events where the area fronting the property along the shoreline is not accessible; the water will actually come up to the seawalls in that area. So we’ve added Condition 3 in order to allow people who are along the shoreline to get away back to the mauka-makai public access way whether it be, you know, climbing over a wall to get to that or any way that they need to in order to get to dry ground. So the condition reads, “In order to ensure access along the shoreline for fishing and recreational purposes that the public has enjoyed for many years in this area, the landowner, applicant, successors or assigns shall not impede or otherwise restrict lateral pedestrian access mauka of the seawall and within the 40-foot shoreline setback area” – this area is shown on Exhibit 3 between the seawall and the pink line – “during” – this condition would apply – “during times that the area makai of the seawall is inaccessible due to high water.” With that, I just have a few corrections to make to our recommendation and background report. We had a numbering problem when we created this variance number; so it’s actually Variance No., Variance Application No. 12-08, rather than 07. And then you will notice at the very end of the recommendation report after Condition 5, it says, “Should any of the conditions not be met or substantially complied with in a timely manner, the Planning Director may initiate procedures to revoke this permit”; it should say “to revoke this variance.” And that concludes my presentation. Are there any questions? GIFFIN: Commissioners, any questions of Maija? I do. Maija, could you go back to the slide that you have, showing the access -. Yeah, that’s good, that’s good, yeah. Okay, now, that’s a County access from Puakō Beach Drive to the ocean, right? COTTLE: Correct. GIFFIN: Okay. I can see where the far right-hand side of the access is low. The left-hand side, however, is high. And in the background report, and correct me if I’m wrong, there was a mention of stairs that might have been damaged during high surf. I don’t know, I’m just presuming. Okay. Who put that in? And is it the County’s responsibility to put it back so that – you see that high end? COTTLE: Yes. GIFFIN: And you’ve been on this access, right? COTTLE: Yes. GIFFIN: Okay. Is it lopsided like that where it’s high on one side and low on the other? 3 EXHIBIT B COTTLE: It looks just like the picture depicts. GIFFIN: Okay. And there was a picture of Jeff with his back -. COTTLE: Yes. GIFFIN: Standing. COTTLE: This is actually another good shot -. GIFFIN: See so it’s high, wait, yeah, high on the left and then it drops to the right. Is there a way for the public to traverse that to get into the water? COTTLE: The public, it’s assumed that the public would traverse wherever it’s accessible, so -. GIFFIN: Okay, so there is no attempt to replace the walkway that once was, that is in reference to the background -. COTTLE: No. GIFFIN: Okay, so it’s going to be as is. COTTLE: The public access way will remain as is. GIFFIN: Okay. LEITHEAD TODD: Yeah -. GIFFIN: Bobby Jean. LEITHEAD TODD: Prior to this, there was a wall across that open area, and on one side of the wall you had a set of steps that came down. And what occurred over time is that the steps separated from the wall, behind the wall the ocean came in and dug a hole, and we ended up having to barricade the public access because it was unsafe and we were concerned. Working with Mrs. Scharpf and her representatives, they took care of the dangerous condition – that’s one of the reasons we had the emergency permit – they took care of the dangerous condition; they fixed that access way to improve it because there was a hole just, where you see that line of sand, right behind there, there was a big hole, so they fixed that up, and then they angled their wall a little bit to reduce the impact of some of the potential wave action in that area, and have substantially improved public access through the work that they did. GIFFIN: Okay, so the rock, the lava rock that is built up there towards the top of the access, is that, that was put in by the applicant’s representative, I mean, the applicants, to ensure that that roadway, that access would be kept in good condition to pervert flanking or whatever -. LEITHEAD TODD: I think it would be easier to have the applicants talk about what went on. There is a problem in that, as far as we can tell, there are a lot of walls that got built in Puakō without permits -. 4 EXHIBIT B GIFFIN: Right. LEITHEAD TODD: And we don’t know exactly when they got built. And so it basically in many cases set up artificial shoreline. The problem is if you have a wall in one area, it ends up impacting the others, and over the long term, as we know, that the shoreline is changing, it eventually poses some problems to this area. GIFFIN: Okay. Maija, that wall that is there on the right-hand side of the roadway, not Mrs. Scharpf’s but the other one: Is that Sutton -? COTTLE: Yes. GIFFIN: That is mentioned in the background report? COTTLE: Yes, that’s the Sutton wall. GIFFIN: Okay. Commissioners, do you have any questions? Tom? No? WHITTEMORE: My only question was really with respect to the other walls down there, I mean, that was my, I just want to understand that better. GIFFIN: Do you want to bring that up then? WHITTEMORE: Well, only that, are we opening a floodgate here with future requests? Because, you know, this is a contiguous wall and continues on down, and I would imagine the neighbor next door is going to be the next applicant, so -. Just a question, thought. COTTLE: Yeah, as the Director mentioned, a lot of the seawalls in Puakō were built without permits or built before SMA law possibly. We’ve only issued two permits, two shoreline setback variances for walls in Puakō. GIFFIN: Wow, okay, well, like the Director said, maybe this is a good time for the applicants to come up. And Robby Robertson has signed up to testify, but that would be after you two present. Will you please sit down, pick up your microphones, and raise your right hand. Thank you. Do you swear or affirm to tell the truth on this matter now before the Leeward Hawai‘i County Planning Commission? MOOERS: I do. VITOUSEK: I do. GIFFIN: Will you please state your names – as if we don’t know. MOOERS: My name is Greg Mooers, planning consultant for Mrs. Scharpf. My address is P.O. Box 1101, Kamuela, Hawai‘i. GIFFIN: Thank you. 5 EXHIBIT B VITOUSEK: Good morning. Randy Vitousek, and I’m an attorney for Doris Scharpf. And my address is 75-170 Hualālai Road, Kailua-Kona. GIFFIN: Thank you. Greg? MOOERS: Yeah, the first thing I would like to do is answer Commissioner Whittemore’s question. This won’t lead to other applications because most of the walls, particularly the walls both on north and south of this wall, are considered nonconforming walls; they were built prior to that. So if they were built prior to a certain date, they are considered acceptable; they are nonconforming, but they are legal walls. So that’s why most of the walls in Puakō will remain is because they were built prior to that date. VITOUSEK: June ’97. GIFFIN: Ninety-seven? MOOERS: Yeah. So since most of those properties, shoreline properties, were built prior to that, the walls would be considered nonconforming. In fact, the wall on this property, there was a wall that preceded this wall, there was a rock wall. If that rock wall had been unaltered, it would be legal and it would be nonconforming and we wouldn’t be here today. But the fact that they took the rock wall down and built this new wall, then the nonconforming goes away because it was modified. I think one of the things I would like to emphasize is that Ms. Scharpf did not construct this wall; the wall was constructed prior to her ownership of the property. And I think Mr. Vitousek will probably give a little background about the history of the wall and the violation, because there is a settlement agreement with the County that I think is important as we consider this permit. So I ask Mr. Vitousek if he could review that. GIFFIN: Good. Thank you. VITOUSEK: Is this mike on? Cause -. GIFFIN: Yes. VITOUSEK: It is. Okay. Can I ask you -. GIFFIN: Wait, I’m sorry, it is, right, Noriko? SAUER: Yes, it is. GIFFIN: Uh huh, I thought so. VITOUSEK: Can I ask you to put the aerial photo up, please? Okay. Yeah. Good morning, and thank you. I first got involved in this several years ago, back into the previous Planning Director’s tenure. And if you see the – can I just point out here? MOOERS: Take the microphone -. 6 EXHIBIT B GIFFIN: Why don’t you take the cursor? VITOUSEK: Okay, so -. LEITHEAD TODD: Would you like the pointer? VITOUSEK: No, that’s okay. The County right-of-way is here, and then this is Doris’ house here. Doris is here present in the hearing, by the way. (Mr. Vitousek briefly discussed the property owner’s personal circumstances.) And she was having problems, as other people do in Puakō, with people who would come down the right-of-way at night and park and drink and play their radios and what not. And so she contacted the Planning Department to say, “Gee, is this right, I mean, is this really what the right-of-ways were for?” And the representative from the Planning Department came down and cited her for having an illegal wall, and filed an enforcement action against her because she had an illegal wall. And it went to decision; there was a ruling that the wall was illegal and it had to be torn down. That’s when I got involved; that’s when they contacted me. And so I went and met with Mr. Yuen, and we negotiated an agreement where she paid the fine for the illegal wall, so Doris paid the fine, and we were given time to apply for permits to make the wall legal. And so we had to get a shoreline certification, and because -. Let me see. I don’t know what the best way to do that is, but I’d like you to see what the wall looked like before. If I can -. GIFFIN: Jeff? VITOUSEK: So this is a photograph. The bottom one is a photograph of what the wall and stairs looked like before. GIFFIN: Stairs. DARROW: Do you want me to take it out? VITOUSEK: No, you can just, if you can just show it to them. And so what it shows is that the wall that the former owner of Doris’ property built went straight across the County right-of-way, and there was some stone stairs that went from the County right-of-way down to the beach, and those stone stairs had been detached from the wall by surf, so there was a gap between the stairs and the wall. And so what we needed to do in order to, in order to legalize the wall was we had to come to an agreement with the Department of Public Works as to what the design of the right-of-way would be. And Doris initially proposed – Doris is a special person – she initially proposed creating a handicap access right-of-way, you know, where there would be a handicap parking place, a paved path and a ramp. Well, the County rejected that because they felt that that would expose them to liability. And so it took us quite a while to get the Public Works to agree on a design for the right-of-way, and the only design that they would agree on was no stairs and just having the sand go down into the water. And so -. Can we go back to the one that shows the shoreline setback, that slide? COTTLE: This one? Or this one? VITOUSEK: That one, yes, if we can. So -. Actually, go to the, would you mind going to the shoreline certification one first? So the original configuration, you can see here with the wall came all the way across the right-of-way and there would be stairs, okay? And so what – can we go to the 7 EXHIBIT B next one – so what we were finally able to do is come to an agreement that it would look like, like this; and so what Doris agreed to do was actually move back off the, off the shoreline – see this is the certified shoreline and her property line – so she agreed to move back so that there would be access, you know, from the right-or-way and to the north. And so that was the plan that we were going to go forward with in the application for the SMA and the shoreline setback variance. Then – would you mind again showing them this photograph – then there was this big surf event when the surf came and destroyed portions of the wall here in front of the right-of-way and created this very dangerous situation where the, there was actually crumbling, the front wall was actually crumbling. And so what we did at that point was we went to the County, as the Director has pointed out, and we said, “Look, we can go ahead and repair this on an emergency basis because of the storm damage,” because they actually had to block off the right-of-way. And so Doris, you know, had Greg file the application for the emergency SMA and shoreline setback variance, and that related to from here to here. And it’s no accident that it’s here because, as you can see, this is where the shoreline, the certified shoreline, goes mauka, I mean, goes makai, right, goes makai. So in this area this, you know, this is all vegetation, this is all hau and kiawe and naupaka, and so the idea was that if you do the repair in this way and if we drop back here, then she is assured that people who use the right-of-way can get to this area here without, you know, without having to go makai of the shoreline. And so, great, so she makes that application and the Department approves that application, and when they approve that application by a March 28, 2011, decision, they make the finding that “the proposed project will not hinder lateral access along the shoreline and will not have an adverse impact on beach processes or on public views,” and they impose 13 conditions on this shoreline setback variance and the SMA, not including this Condition 3, you know. And so they find that it doesn’t impair access and they don’t impose the condition. And so we thought, honestly, that when they got the emergency approval, that it legalized the whole wall, because we figured a wall, you know, a wall is a single structure, you know. So we felt when we got the approval, it related to the whole wall, and so we tried to confirm that with the Department and the Department said, “No, it only related to this portion of the wall and not to this portion, and you still have to apply to legalize this portion.” And we said, eh, then we said, “Wait a minute, so why would we do this part, right, if you can still deny that part,” you know. I mean we were going to wait, you know, and they said, “Well, look, you know, we’ll agree to support your application and we’ll agree that you don’t have to recertify the shoreline and we’ll go, you know, we’ll go ahead.” So we made another agreement that Doris would go ahead with applying for the legalization of this portion, and the Planning Department would support it, and that we would then proceed. And so, what they’ve done is, it seems like a simple condition, you know, this Condition 3, but what Condition 3 says is that if there’s high high-waves – whatever that means, I’m not sure there is any real content to that – that she can’t prevent people from being anywhere in this area, because they say it’s up to the 40-foot setback. So basically, if someone decides that they don’t want to get their feet wet, then they can, they can be anywhere in this area because, because they say she can’t impede people from using the 40-foot setback for access, and it’s not limited, you know, as to the time of day or anything else. So what we have is, you know, (Mr. Vitousek briefly discussed the property occupant’s personal security being jeopardized by this condition as proposed), and we have the Planning Department proposing a condition that would allow people to walk in this whole area, night or day, if they feel that somehow they can’t get from here to here without getting their feet wet. And that’s just not really a reasonable condition, you know. What -. Could you go back to the aerial photo, please? And the reason it’s not a reasonable condition is because it’s completely unnecessary. If you look, this is where the right-of-way comes in, okay, and the area makai of the 8 EXHIBIT B wall is this area here, and so this area is all vegetated, it’s got beach, look at this grass all the way out here. I measured it this morning; this from here to here is 164 feet, you know. And so this is not an area, this is an area where there is land makai of the shoreline, I mean, where there is land makai of the property, private property, which is mauka of the shoreline. And so all this is State- owned land, which is in the Urban District, because the beach reserve in Puakō is Urban District. And if you come out of the right-of-way here, you get onto the sand right there. And so what they are saying is that because sometimes there might be waves that come up to here, that they want a public access right across her whole lawn. And it’s just, it’s just not reasonable; it’s not proportionate to what the risk is. So what we would ask is that the -. And also, you know, to point out -. Can you go back to the shoreline, the shoreline certification one momentarily? So this place is, the only places where the shoreline and the wall were at the same place is here, and that’s been changed, cause the wall now goes back to here, end up here, you know. So I think the only rationale for, like, imposing any kind of public access condition is where the wall establishes the shoreline; in other words, where the shoreline is right on the face of the wall, because where the shoreline is way makai of the wall, there is no reason to put a public access condition on back over here. So what we would ask is that Condition 3 be amended, and basically to say that “In order to ensure access along the shoreline for fishing and recreational purposes that the public as enjoyed for many years, the landowner, applicant, successors or assigns shall not impede or otherwise restrict lateral pedestrian access,” and I’d like to say, “in an area six feet mauka of the wall in areas where the wall establishes the certified shoreline”; in other words, in areas where the wall is actually, you know, where the shoreline is actually on the face of the wall, that people can walk in the area six feet mauka of the wall in times of high surf. So that’s, you know, so I think that what we are trying to do is come up with a condition that’s reasonable and is limited and doesn’t basically give the, impose a public access condition on all of Mrs. Scharpf’s yard, or the major portion of Mrs. Scharpf’s yard. GIFFIN: Excuse me, Randy, could you please go over your statement of the proposed change into the condition? VITOUSEK: Sure. And so what we would be saying -. If, can we go back to the one that has the shoreline setback, has the revised wall -. Okay, so, right now, the only, what we are suggesting is that in areas where the shoreline, the certified shoreline is established by the wall, in other words, where the shoreline is at the makai face of the wall – right now that’s in this area right here – that there be a six-foot wide pedestrian access strip mauka of the wall, if there is high surf, in other words, probably the same condition as they are talking about. Right now, down here, this is the shoreline out here, the wall is back here; if at some point in the future it changes, then this condition would say that they would have the six-foot public access strip mauka of the wall, if the shoreline moves in to where the wall is. What the Planning Department was referring to in terms of our engineer’s, our coastal engineer’s testimony, her testimony was that when the wall was in its previous configuration, if that then, and established the shoreline, if that wall were removed, there would be erosion; she wasn’t talking about this area, because she said specifically that in the northern and southern portions of the property the wall is at the shoreline. So what we’ve tried to do is accommodate the interest, but by saying that in areas where the wall is the shoreline, in other words, areas where the wall establishes the shoreline, that they have a public access condition; in areas where the shoreline is already well makai of the wall and on State property, that there is no need for it. So that’s what we propose. 9 EXHIBIT B GIFFIN: Commissioners, any questions of Mr. Vitousek? Hearing none, Greg, did you want to bring up more information? MOOERS: I think, yeah, I just wanted to make sure that the Commissioners understood the history of the relationship that Mrs. Scharpf did not build the wall, that she in many ways was a victim of this “illegal wall,” and has done everything in her power to work with the County to address the issue of the public access and to improve that and to go through the permitting requirements, paid the fines from the previous owner, and is not opposed to any of that. We are concerned about Condition 3. We understand the need for public lateral access, but just feel that that area all the way up to the pink line is excessive, and that it will be very hard to police. The condition as Mr. Vitousek has recommended, the six feet, would say that at any point that the wall affixes the shoreline, so at some point in the future if the sea levels continue to rise and more portions of the wall fix the shoreline, then in fact the public access is granted beyond that wall. So the only thing that we are opposed to is providing public access above the wall, if there is adequate State-owned land makai of the wall. So at any point that the seawall becomes the shoreline, we would agree that there should be lateral access above the wall. I think one of the things that, you know, we have to look at is, you know, what’s the public benefit, and the reality is is that the wall on the north is already a nonconforming wall, so that access is not going to continue beyond Mrs. Scharpf’s. The access to the south is a nonconforming wall. So, I mean, we are talking about the public right now goes out onto that point, and they go out on the point because there is sand, there are trees, and they enjoy that; but as far as this being part of the trail or path, it simply is not -. GIFFIN: Right, right. MOOERS: It’s one isolated lot. GIFFIN: I wish we had – I’m sorry, I wanted to just talk to you, Greg – I wish we had pictures of the northern lot and wall and the beach -. VITOUSEK: But we do. MOOERS: We do. GIFFIN: And the southern Sutton property beach -. MOOERS: I think Maija has got several photographs that show those. That, there’s, that’s the south. GIFFIN: And that’s the Sutton’s. MOOERS: Yes. And you’ll notice that it’s basically rubble and water there; there is no beach, right? GIFFIN: And then something north? MOOERS: That’s north -. GIFFIN: Oh, the lower portion, uh huh. 10 EXHIBIT B MOOERS: And you can see the area here there is more rubble out there. But as you go out, then the shoreline varies, but it goes up pretty much to the wall. But those walls are considered legal nonconforming walls. GIFFIN: Commissioners, any other questions of Greg? If I understood the condition correctly, Maija, it would be not to linger as they are traversing; it’s to traverse, right, the width of -. COTTLE: That’s correct. GIFFIN: Mrs. Scharpf’s property. So we are not saying that we are going to encourage or want people to linger or -. COTTLE: Quite the contrary. GIFFIN: Right. COTTLE: We just want it to be a means for people to get to dry land -. GIFFIN: To the access. LEITHEAD TODD: Can you go back to Condition 3? COTTLE: Yes. LEITHEAD TODD: Mr. Vitousek, you were suggesting that there be language that’s saying six feet mauka of the seawall. VITOUSEK: Yes, so what I was suggesting was -. LEITHEAD TODD: Can you use the mike, please. VITOUSEK: Oh, I’m sorry. LEITHEAD TODD: It’s for our recorder. VITOUSEK: I’m sorry. Yeah, what I was suggesting was, let’s see, yeah, so what I was suggesting is to say “pedestrian access six feet mauka of the seawall,” and then I was saying, here, I was saying “and in areas where the wall establishes the certified shoreline.” And so it would be six feet mauka of the shoreline and within areas that the wall establishes the shoreline. That was what I was proposing. GIFFIN: Bobby Jean, would this be a good time for me to call up the member of the public who -. LEITHEAD TODD: Yeah. GIFFIN: Has signed up to testify? So I’m going to ask that both of you please step back. And, Robby, if you could come forward. 11 EXHIBIT B LEITHEAD TODD: Randy, can you write down your proposed language so the staff can have it. VITOUSEK: Yes (inaudible), sure. GIFFIN: Good morning, Robby. Could you please raise your right hand. ROBERTSON: Good morning. GIFFIN: Good morning. Do you swear or affirm to tell the truth on this matter now before the Leeward Hawai‘i County Planning Commission? ROBERTSON: I do. GIFFIN: And your name, please. ROBERTSON: George Robertson. GIFFIN: Thank you. Go ahead and begin your testimony. ROBERTSON: Thank you. I’m a member of the Puakō Community Association, and we have sent a letter to Bobby Jean in support of the application. GIFFIN: Right, we have it. ROBERTSON: And we, you know, we want you to know what kind of woman this is who made this application. She is a magical person that has helped our community immensely, I mean, I hesitate to tell you how much she has done. It’s remarkable. But she is, like, having Earl Bakken in Puakō. So I just, you know, ask that you give her all your, all your kōkua that you can. And she is in between a rock and a hard place on this wall thing. She didn’t know it was illegal when she bought the property. It wasn’t disclosed to her. The realtor didn’t make her aware of it. It was just a terrible shame that it didn’t come up when it should have. So she has been stuck with it. And then, you know, you’ve heard the story about how it was discovered, that she needed to do something about it. So, and I’ve seen the, I’ve been on the property, I’ve looked at it; it doesn’t, this Condition 3 makes no sense to me at all, frankly. I don’t, it’s an isolated lot, I don’t understand why you could allow people to traverse the property and then get stuck at the north end and the south; there is no place to go north or south unless you go out the access. Or if you go north, you are at the boundary of the next door’s property, there is a high wall there; there is no way to get, you’ve got to jump down. Otherwise, if you are crossing, continuing, you are trespassing on the property owner to the north. So it’s just goofy. And there is plenty of good access in front of Doris’ lot, much better than either the lots to the north or the south where you saw the rubble. There is, you know, the grass here away out on the reef. The pāhoehoe is very negotiable. So there is no, I don’t, I don’t visualize any problem of people walking or having access. If it’s really high seas, they shouldn’t even be down, they should get out of there, go up the public access and get out there, but don’t, no need to go in Doris’ yard unless you are going to drown, but -. Anyway, it’s just a goofy condition to me. So but I just want to tell you that the Puakō Association supports Doris with no reservations at all, and we would like you to expedite this approval process. Thank you. 12 EXHIBIT B GIFFIN: Thank you. Commissioners, any questions of Robby? None? Thank you, Robby. We are back, Director? LEITHEAD TODD: Maija, could you read Condition 3 as proposed by Mr. Vitousek so we can compare it with the language up there? COTTLE: Sure. “In order to ensure access along the shoreline for fishing and recreational purposes that the public has enjoyed for many years in this area, the landowner, applicant, successors or assigns shall not impede or otherwise restrict lateral pedestrian access mauka of the seawall in areas where the wall establishes” – I’m sorry -. LEITHEAD TODD: There is “six feet” in there somewhere. GIFFIN: Uh huh. COTTLE: Hold on just a second. Okay, let me start at, “successors or assigns shall not impede or otherwise restrict lateral pedestrian access in an area six feet mauka of the seawall and in areas where the wall establishes the certified shoreline during times that the area makai of the seawall is inaccessible due to high water.” Again? LEITHEAD TODD: No. I’m, you know, I’m comfortable with the language because it leaves room in the event that the shore moves inland up to the wall. I think it’s a compromise, because I don’t think people should be able to go through the whole 40-foot area, it restricts it to a six-foot area mauka of the wall, and I think it would satisfy HRS 205A. And the reason is, kind of the history here is, when we did an emergency grant to do the repair, we were doing authority through the Department, but to grant a variance from the shoreline area has to go through the Planning Commission; and that’s why this wall kind of got parsed into two different pieces, because we felt that our authority as the Department did not extend to the entire wall, that it had to come to the Commission. And so it was a very difficult time, I think, for Mrs. Scharpf, because she’s tried to do the right thing. And she’s been a good member of the community there, you know, she has worked with us -. She took on some repairs that really weren’t anything that she had done; those steps were there before her, and yet they created a public hazard, and she was able to go in and take care of it. The real problem here is that a lot of these walls got built, you know, without permits. Nobody knows exactly when they got built. I suspect that some of them are pre-1970 walls, which would be the issue. I know for a fact that a bunch of them weren’t there in the 50’s when I played as a kid in that area and when we camped down in this area and we used to rent, you know, down in Puakō. So sometime between then and now walls got built. And in the long run those walls create an artificial shoreline; the shoreline can no longer move in. On the residents’ part most of those walls are there to try protect their property or it was so they could build up their yards because, you know, you want to bring dirt in, etc. Water under the bridge the walls are there. But in administering the law and trying to look at these conditions, we are kind of required under State law to try and preserve the potential for lateral access particularly in areas where we are granting a variance. I don’t think that it’s an issue very often, because I do kind of agree with Mr. Robertson in that, you know, if the area is full of water, people really shouldn’t be going down there. But I know fishermen that, you know, do go out in water that I wouldn’t venture. So I think that Mr. Vitousek’s language will strike a balance between our need to comply with the HRS, as well as trying to protect Mrs. Scharpf’s privacy. 13 EXHIBIT B GIFFIN: And her wellbeing, you know, in addition to her privacy. I think that we should consider all of that for any citizen. Ivan, is it necessary to include swimming? Ensure access for fishing, and we have “and recreational purposes” – does that include swimming? Because it seems to me by the pictures that Maija has that it might be a nice area for swimming as well. Or do you think that that’s covered under “recreational purposes?” TORIGOE: I would say it’s probably covered. And really the statute and your rules only require that the condition maintain safe lateral access to and along the shoreline, and don’t specify the activities. GIFFIN: Oh, c’mon, no, thank you. So, Bobby Jean, if I hear you correctly, you are saying that you are comfortable with the suggested changes that Mr. Vitousek is proposing. LEITHEAD TODD: Yes, because I think it protects the public interest in that there is room there that if the shoreline moves, you know, ten years from now, if the shoreline is up against the wall, then it protects a six-foot access path mauka of the wall. Because I don’t think that it’s going to change immediately, but ten years from now -. GIFFIN: Who knows. LEITHEAD TODD: Who knows, you know, because we’ve certainly seen that kind of movement. But for the immediate present I think it strikes that balance between protecting the applicant’s privacy, as well as protecting the future feasibility of having the six-foot mauka access. GIFFIN: Okay. Commissioners, any questions of the applicant? And maybe the applicants can come forward now. Greg and Randy, would you please come forward because Commissioners may have questions. Maija, could you please put that slide back up that shows the wall? COTTLE: Which part of the wall -? GIFFIN: And her yard. So looking at it from, yeah -. COTTLE: Here. GIFFIN: Okay, okay. So, Randy, the portion of the wall that you are referring to with the six feet is that section there -. VITOUSEK: Right. Right now, the place where the certified shoreline is at the face of the wall is on the makai side of this. GIFFIN: Correct. VITOUSEK: So there would be basically a strip, six feet, there. GIFFIN: Right. Okay, and -. 14 EXHIBIT B VITOUSEK: And then, and then, again, you know, like the Planning Director points out, if there is a change in location of the shoreline in the future, that would move; but for now, that, if you look at the maps, that’s the only area where the certified shoreline is on the makai face of the wall. GIFFIN: Because the other end, the southern end, already comes in, is what you are saying? VITOUSEK: Because she moved the wall in from the certified shoreline -. GIFFIN: Right, right. VITOUSEK: As part of the emergency repair. She moved it onto her property so -. And if you remember the other slide that they showed that there is beach and grass makai of the wall in that area. GIFFIN: Bobby Jean. LEITHEAD TODD: A slight tweak -. GIFFIN: Okay. LEITHEAD TODD: That staff has suggested. So put the condition back up, so we can read along as we are going through this. It makes it easier for everyone, I think. It’s still here. ARAI: No, you take it out. LEITHEAD TODD: Okay. “In order to ensure access along the shoreline for fishing and recreational purposes that the public has enjoyed for many years in this area, the landowner, applicant, successors or assigns shall not impede or otherwise restrict lateral pedestrian access in an area six feet mauka of the seawall where the wall establishes the shoreline during times that the area makai of the seawall is inaccessible due to high water.” VITOUSEK: What’s the change? LEITHEAD TODD: I got rid of the “and” and “in areas.” VITOUSEK: Okay. LEITHEAD TODD: So it reads that “access in an area six feet mauka of the seawall where the wall establishes the shoreline.” To me, this is a little cleaner, okay? VITOUSEK: We’re fine, not a problem. GIFFIN: Commissioners, any questions of the applicants, or the applicant and Mr. Vitousek? Or any questions of the Director for her additional changes? Tom, did you have a question? WHITTEMORE: No. GIFFIN: Okay. Any other questions or any comments to make? Okay -. 15 EXHIBIT B TORIGOE: Madam Chair? GIFFIN: Sorry? Ivan Torigoe. TORIGOE: Yeah, no, I just, listening to language that’s proposed – it’s kind of hard to really parse it without having it clearly before us – but I’m wondering if it might be wise to just make it explicit that it’s where the seawall establishes the shoreline at present or as it shall change in the future, you know, or if it changes in the future or something like that, when -. VITOUSEK: I don’t see why that’s necessary because what it says -. The shoreline is, the shoreline is not something that’s fixed in a point of time – shoreline by definition. I think it says the certified shoreline. LEITHEAD TODD: Well, I was getting rid of the word “certified” and just saying “shoreline.” VITOUSEK: That’s a defined term. LEITHEAD TODD: Yeah, cause it’s a defined term, I didn’t think you need any -. VITOUSEK: As a certified shoreline. LEITHEAD TODD: Uh huh. VITOUSEK: But that’s okay. GIFFIN: Okay. VITOUSEK: I just don’t think it needs anything, the shoreline, yeah. GIFFIN: You are comfortable with that? VITOUSEK: Well, I just don’t think it’s necessary. I would prefer to have it the way it was -. GIFFIN: Sure. VITOUSEK: Before. TORIGOE: Yeah, and I would defer to the Planning Director. I just threw that out. LEITHEAD TODD: Yeah, I’m comfortable that the discussion that we have here in the record establishes the intent that, hey, if ten years from now, the shoreline has moved in and it’s running along the wall, then we are talking about six feet along the wall. And as other people in this area come in and need any permits from the Planning Department, we are going to be seeking similar requirements on everybody that’s got a wall in Puakō, because if the walls end up defining the shoreline and there is no public access, we are going to -. GIFFIN: Yeah, we are in trouble. 16 EXHIBIT B LEITHEAD TODD: Every opportunity I would try to establish lateral access. VITOUSEK: That is the applicant’s understanding as well. GIFFIN: Okay, good. And I’m glad the record is clear on that. Any other questions of the Planning Director or of staff or certainly the applicant and also Mr. Vitousek? Okay. LEITHEAD TODD: You thought this was a simple one, huh? GIFFIN: Yeah, among friends. Hearing none, do I hear a motion? I can’t make the motion -. IOKEPA: Madam Chair? GIFFIN: Yes. IOKEPA: I propose a motion -. Before I make the motion, am I correct that the application is 12-08? COTTLE: Correct. GIFFIN: Yes. IOKEPA: Okay. I propose a motion to approve Shoreline Setback Variance Application 12-07 -. GIFFIN: Eight. IOKEPA: Zero-eight – thank you, just checking – with conditions, amended conditions to Conditions 3 and 5. We added the “variance” at the end of Condition 5. GIFFIN: Oh, oh, yes, yes. IOKEPA: Thank you. GIFFIN: Thank you. Do I hear a second? HICKCOX: Second. GIFFIN: It’s been moved by Commissioner Iokepa and seconded by Commissioner Hickcox that the shoreline setback variance application, 12-08, as stated by the, in the recommendation by the Planning Director be approved, along with the five conditions as spelled out with the change in Condition No. 3 as worked on by Mr. Vitousek and the Planning Director, and the last typo change from “permit” to “variance.” Any other questions? Discussion? And with very good information from the public, I might add. Hearing none, Maija? COTTLE: Thank you, Madam Chair. GIFFIN: You’re welcome. 17 EXHIBIT B COTTLE: Commissioner Iokepa? IOKEPA: Aye. COTTLE: Commissioner Hickcox? HICKCOX: Aye. COTTLE: Commissioner Whittemore? WHITTEMORE: Aye. COTTLE: And Madam Chair? GIFFIN: Aye. COTTLE: The motion passes, four-zero, to grant the variance. VITOUSEK: Thank you very much. GIFFIN: You’re welcome, and congratulations. And as usual, you will hear from the Department in written form. VITOUSEK: Thank you. The discussion ended at 11:14 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 18 EXHIBIT B