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HomeMy WebLinkAbout2012-10-18 Leeward Exh B - DPW Laaloa LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT OCTOBER 18, 2012 COUNTY OF HAWAI‘I DEPARTMENT A regularly advertised hearing on the application of OF PUBLIC WORKS (SMA 12-051) was called to order at 10:30 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, Brandi Beaudet, Thomas Hickcox, Wayne Iokepa and Richard Nelson, III ABSENT AND EXCUSED: Lani Bowman and Thomas Whittemore 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 approximately 16 people from the public in attendance. APPLICANT: COUNTY OF HAWAI‘I DEPARTMENT OF PUBLIC WORKS (SMA 12-051) Application for a Special Management Area (SMA) Use Permit for the extension of La‘aloa Avenue as a two-lane, 60-foot wide collector roadway for approximately 1,900 feet to connect with Kuakini Highway (Alternative Alignment 3, Cross Section Alternative B), La‘aloa 1 and 2 and Pāhoehoe, North Kona, Hawai‘i, TMK: 7-7-004: 068, 7-7-008: 029, 114, 120 and 7-7-28: 007. GIFFIN: We are now on Agenda Item No. 2. Agenda Item No. 2 is the County of Hawai‘i Department of Public Works requesting a special management area use permit, SMA 12-000051. The County of Hawai‘i Department of Public Works has submitted an application for a special management area use permit for the extension of La‘aloa Avenue as a two-lane, 60-foot wide collector roadway for approximately 1,900 feet to connect with Kuakini Highway. Daryn? ARAI: Thank you, Madam Chairwoman. If I may direct everyone’s attention to the presentation screen. This is a location map showing the existing alignment of La‘aloa Avenue. As you can see here where my laser pointer is showing, Ali‘i Drive is located at the far left, running along the coastline in a north-south direction. This heavier white line running through the middle is the proposed Ali‘i Highway, or Ali‘i-Kahului Parkway I think it’s called. On to the left of the proposed Ali‘i Highway in the mustard colored area is the White Sands Subdivision, and I think it’s Kailua View Estates. On the right hand of the proposed Ali‘i Highway in a tan colored area is the Ali‘i Heights Subdivision with Kuakini Highway off to the far right, as indicated by my laser pointer. This is an aerial photo of the subdivisions that I referenced earlier. Again, Ali‘i Heights Subdivision located on the right of the photograph. White Sands and Kailua View, I think it’s, I’m sorry, maybe not Kailua View, it’s Keauhou View Estates, Keauhou Estates is located here to the left of the photograph. This is a map showing the Kona CDP. As you can see here, this is La‘aloa Avenue, the slightly tan colored line. The proposed improvements, or extension, of La‘aloa that’s being covered by this special permit, special management area use permit application is that 1 EXHIBIT B segment shown in green, which does not exist, currently exist on the ground. This is another view of the Kona CDP Concurrency Map. And, again, La‘aloa is located in this vicinity here; it’s in the Concurrency Zone M. And the proposed -. Anyway, maybe I’ll just stop it there. The applicant is requesting an SMA use permit application to extend La‘aloa Avenue as a two-lane, 60-foot wide collector roadway for approximately 1,900 feet to connect with Kuakini Highway to the east, or mauka, of the existing alignment. Currently, there are no connectors between Kuakini Highway and Ali‘i Drive for approximately three and a half miles between Royal Poinciana Drive to the north and King Kamehameha III Road to the south. I’m going to skip this real quick. Currently, we, the application and the Director’s background report was transmitted to the Planning Commission. We do have communication, recent communication, from the general public, which we did provide to you; and I believe that letter, or testimony, was from Alfred and Kathleen Lindsey. We also recently received a request by Mr. Eugene Clapp of Onouli Farm, who submitted a timely filed petition for intervention in a contested case proceeding. He is represented here today by Mr. Roy Vitousek. We did receive yesterday a request to postpone or continue today’s hearing in order to allow the petitioner additional time, or adequate time to prepare for the contested case proceedings, should standing be granted to Mr. Eugene Clapp and Onouli Farm. So with that, I stand ready to answer any questions that you may have. GIFFIN: Thank you, Daryn. Commissioners, any questions of staff regarding this agenda item? Hearing none, Randy, I would like to have the applicant come up, please. Thank you, Brandon. Could you please raise your right hands, and – I have to find my wording. Do you solemnly swear to tell the truth this morning before the Hawai‘i Leeward Planning Commission? GONZALEZ: I do. GIFFIN: And you, sir. KANAKA‘OLE: I do. GIFFIN: Great. Will you please give me your name and your capacity as part of the application. GONZALEZ: Good morning, Chair Giffin, Members of the Leeward Hawai‘i Planning Commission. My name is Brandon Gonzalez, Deputy Director for the Department of Public Works. I am here representing the, as a representative of the Department. And the Director, Warren Lee, sends his regrets for not being available; however, he is on leave at this time. So that’s why I’m handling this matter. To my right is Mr. Ryan Kanaka‘ole, the Department’s Deputy Corporation Counsel. KANAKA‘OLE: Well, that was my introduction. I represent the applicant, Department of Public Works. GIFFIN: Great, thank you. And thank you for being here. Brandon, would you like to begin? First of all, you might want to just give us some brief background to the application; and then if you had anything that you wanted to add to what Daryn said, I know the Commission would appreciate it. 2 EXHIBIT B GONZALEZ: Thank you very much for this opportunity. I’ll try and keep my comments brief because I do believe there is a bunch of people from the public that have come here that would like to offer some testimony, so I defer to them and their schedules as well. The Department of Public Works has been coming in, as Daryn depicted, for the mauka portion of La‘aloa Avenue that exists in concept but not on the ground; right now, La‘aloa Avenue stops as the map indicates. And what this application is for is for the mauka portion for a 1,900-foot connection to Kuakini Highway. And then along Kuakini Highway, since that is a State roadway, there is going to be about 1,500 feet of lane work to make that intersection up there acceptable to State standards. And so the purpose of this project in a nutshell is to provide a mauka-makai connector for public safety. It’s going to be envisioned to be utilized as an alternative evacuation route in the event of a disaster. As pointed out, there are only two mauka-makai connectors and nothing in between the 3.5-mile stretch from Kamehameha III Road and Royal Poinciana. So this gives us another link in the puzzle. We view long term that it will improve the traffic circulation in the region. It would also offer better improved response times for our first responders, Police and Fire. And so this has been a longtime coming. There have been a lot of people waiting for some movement on this. And it’s, we are at the stage now where we are ready to proceed with issuing notices to bid, receive bids. And we want to start construction as quickly as possible, but we understand there is a process involved. So that’s why we are here. We are here for the northern portion of La‘aloa Avenue closer to Kuakini Highway. GIFFIN: Thank you, Brandon. Commissioners, any questions of the applicant? BEAUDET: I have a question. GIFFIN: Brandi. BEAUDET: Is there proposed work to be done on the existing La‘aloa? GONZALEZ: Yes. As originally envisioned, La‘aloa Avenue there was, to make it consistent, to be a 60-foot right-of-way. There was these improvements for the connection, well, where it meets up with what we are proposing today, right, to make it consistent. There have been community meetings for input. They’ve identified a priority, including things like bike paths, shared use paths. There has been a request for speed humps in the area; that’s incorporated in the overall design on certain portions of La‘aloa. So, yeah, just to answer your question, in general as a whole, there is projected work for the entire length of La‘aloa Avenue, but this application is only for the northern portion. BEAUDET: Thank you. GIFFIN: Any other questions of the applicant? Okay, hearing none, thank you, Brandon. Will you and – I’m sorry, I can’t remember your first name. KANAKA‘OLE: Ryan Kanaka‘ole. GIFFIN: Ryan. Will you please step back and I will ask -. The staff has received three requests from members of the public. If your name is not, if you don’t hear your name, please come up and tell me. Bob Ward, will you please step forward. Bob Smith, as well, and I think Jose Jazmin, please come forward. Is there anyone else whose name I did not call, who would like to testify? Ma’am, could you please come forward, but we need your name. 3 EXHIBIT B HOLUM: Up to -? GIFFIN: Yes, please. And go ahead and put your name there for No. 4. Is there anybody else? And go ahead and take a seat at that table. Make sure you have a mike that you can speak into when it’s your turn. HOLUM: Patricia Holum. GIFFIN: All right. Will all four of you please raise your right hand. Do you solemnly swear this morning to tell the truth on this agenda item before the Leeward Hawai‘i Planning Commission? TESTIFIERS: I do. GIFFIN: Thank you. Starting with you, sir, please state your name and where you are -. And if you can give us some proximity as to where you are on this map, that would be helpful as well. JAZMIN: Surely. My name is Jose Jazmin. GIFFIN: Okay. JAZMIN: I’m a resident at 77-168 La‘e La‘e Street in the Ali‘i Heights, mauka -. GIFFIN: I’m sorry. Maybe, Daryn, oh, yeah, good. Can you point out where that is? JAZMIN: Well, it’s this, let me see, this is my property right here, this long strip coming down; it’s the fourth house on the right as you make a turn from La‘aloa into La‘e La‘e, facing, well, the back part of the property faces the, this side here, faces the makai side. GIFFIN: Okay. JAZMIN: Okay. So that’s my property right there. GIFFIN: Sure, okay. Would you like to begin your testimony, please. JAZMIN: Yeah, I, just a concern, as a resident, at the, this location and also being now understanding a little bit about this extension. I know that this roadway is very much needed. I think it’s a very good plan. The concern is not about the extension itself, just the security aspect of the subdivision. And a lot of the owners in the subdivision are partly residents, or part-time, they are either reside part time in islands or, you know, elsewhere; and so they leave their property somewhat vacant a good portion of the year. And providing easy access from Kuakini down to the Ali‘i Drive is very good because it relieves the traffic on Ali‘i Drive, and easy access to town and easy access to other places and, you know, in terms of emergency responsiveness to the area, I think it’s a very good plan. However, it brings some issues, because a lot of the owners there are temporary residents and they leave the properties vacant a good portion of the year, such as myself. My concern is what security measures are being put in place to insure that somehow the properties that are somewhat left vacant, because there is no guard gates there, there is no, what are being put in place to provide some security for those properties and also the residents in that area. And also, 4 EXHIBIT B having now easy access to Ali‘i Drive and on this area, is there a, some sort of a Police temporary, maybe positioning of some Police support to ensure that we have some security in the area. And then also, the third, maybe not the third one, but another thought is what kind of beautification are we going to provide for this La‘aloa extension. Right now, it’s just a roadway with no improvements along the road. Are they going to provide any enhanced beautification to make that roadway much more, much more attractive? GIFFIN: Thank you. Commissioners, any questions of the testifier? Hearing none, thank you, Mr. Jazmin. And sir, your name, please. WARD: My name is Bob Ward. I am also a resident of the area. GIFFIN: Okay. Could you point out where your lot and/or residence is? WARD: Let’s see, right there is where I live. But I have friends, here, here, here, here, here, here, here, here. GIFFIN: No doubt. But you have, your home is located between the proposed parkway and Ali‘i Drive, correct? WARD: The area that is not yet to be improved. GIFFIN: I’m sorry? WARD: The area that is not yet to be improved, that’s correct. And so my access to the shoreline is right along the unimproved area. GIFFIN: Okay, thank you. And do you want to begin your testimony? WARD: Okay. GIFFIN: Ward, right? Mr. Ward? WARD: That’s correct. Bob Ward. GIFFIN: You are the one that requested to read your testimony? WARD: Yes. GIFFIN: Please go right ahead. WARD: And I hope you all have -. GIFFIN: We do. WARD: A copy of it just to follow along. GIFFIN: We do. Thank you. 5 EXHIBIT B WARD: Briefly, just to introduce myself, I’m a past or present member of the La‘aloa Advisory Committee for the Context Sensitive Solution process. I’ve served on the Transportation Commission, Hawai‘i County Highway Safety Council, Bicycle Pedestrian Advisory Committee, currently serve on the Kona CDP Action Committee. There are a few others but those are sort of where my focus is, the transportation issues and how it relates to this particular project. I do support this project in general. It’s an essential component to the Kona CDP, as was pointed out by Brandon. However, several commitments are yet to be met. Within the context of HRS 205A, this project must still ensure adequate access and consistency with the General Plan, and by extension other related laws and more specifically the Kona CDP itself. I encourage this Commission to grant the SMA permit; however, I pray they will not do so without first granting minor amendments that I’ll prescribe below. Access. Currently access to the shoreline for approximately 450 homes served by La‘aloa Avenue is at certain points only 20 feet wide, and will remain so unless additional improvements are made. This 20-foot wide strip of asphalt that’s shared by cars, trucks, as well as kids heading to catch the school bus, folks on their way to Hele On and every pedestrian or bicyclist going to the beach parks or traveling along Ali‘i Drive to reach the shoreline and other areas. Improvements to this narrow roadway to meet County standards have been promised for over 29 years, even if the County assumed the developer’s obligation. And Exhibit 1 is basically just the item I took the liberty of highlighting one of the requirements that was originally made of the developer for Keauhou View Estates, as it was pointed out, and Ali‘i Heights on the side of the Ali‘i Parkway right-of-way. And it clearly indicates that one of the conditions to do all the development was to make sure that the entire road was improved, which has not yet been done. When the County proposed to make this a major collector without any of these improvements included, local residents, as some may recall, were so outraged that the County decided to invest approximately $1.2 million in a Context Sensitive Solutions, CSS, process that would incorporate essential safety considerations along with the necessary provisions for providing access. The result of the CSS process was integrated into the final environmental assessment, and the finding of no significant impact; however two complete phases are not yet part of the proposed plan that is the subject of this particular SMA application. First of all, the CSS process resulted in a recommendation of one alternative for construction – not the three phases that have been proposed, with only one of them being a part of this SMA. Further, when proposed by the administration for their capital improvement program, the CIP, for Fiscal Year 2009-2010, the project data financial impact statement clearly included that all construction, including the improvements to lower La‘aloa, would be done at one time. And I’ve attached Exhibit 2, which highlights, right in the very summary of the environmental assessment, that there is just one alternative for the construction, and that included everything from Ali‘i Drive to Kuakini. The third exhibit is basically just a copy of the notice, and it reflects instead of the one phase promised by the EA, that it’s now broken into three phases. And next we have a copy of the financial impact statement that I referred to, again, highlighting the fact that all construction would be included in a single phase. And it’s very important because this was the document that was incorporated into the budget that the Council later relied on to pass as one of the bond elements, the 56, approximately, million dollars allocating the money that it was being requested to be appropriated. 6 EXHIBIT B Personally, I believe it’s wise and very pragmatic for the administration to bid and evaluate the largest component, which will be the most expensive, and evaluate this with respect to the project. However, this SMA requires, I believe, a simple amendment that states that all improvements to makai La‘aloa must be prosecuted concurrently and completed prior to converting La‘aloa from a cul-de-sac into a major collector and opening the extension to through-traffic. This was exactly the same concern that brought the CSS process in the first place, and essentially resulted in the various improvements that had been described but are not yet committed to. Second, under the premise for this project to provide an alternative evacuation route for a tsunami or emergencies on Ali‘i Drive, the CSS process resulted in agreed upon CSS report, included in the appendix of the environmental assessment itself, that clearly stipulated “Street lighting will be provided along the corridor, all other utilities will be constructed underground.” Well, common sense alone would indicate that it’s a logical choice to provide a hardened facility along a disaster evacuation route. This SMA requires a second amendment that states simply it is critical for access to eliminate, there is only six spans left of overhead electric, CATV and phone lines and poles as part of this project. And Exhibit 5 I highlighted the specification where this was presented again as part of the environmental assessment. Other issues related to drainage, traffic calming, and Act 54 of 2009 have not yet been fully resolved, or incorporated into this project. My final point here: Does this proposed corridor provide adequate access for everyone? I will contend that for cars and trucks the answer is in the affirmative. However, simply adding a sidewalk, a sidewalk that exceeds 16 percent gradient, or even the bike lane that at one point that exceeds 21 percent, I suspect that for all but a few of the most fit pedestrians and all but a few elite bicyclists - it does not accommodate all users. Two and a half years ago, the Kona CDP Action Committee revised the Official Transportation Network Map, Figure 4-2b, to include the innovative Switchback Shared-Use Path, or SUP, a maximum five percent within this particular corridor so that the pedestrians of all abilities and bicyclists of all skill levels can actually have mobility and access between Ali‘i Drive and Walua Road, which are the two major pedestrian and bicycle facilities in the area. Therefore, this SMA should have a third amendment: Planning and design of the SUP must be included and construction at least scheduled if access is essential. And Exhibit 6 is the Hawai‘i Revised Statutes for the complete streets, and Exhibit 7 is just a blown-up portion of that revised Official Transportation Network Map for the area. Thank you. GIFFIN: You’re welcome. Commissioners, any questions of the testifier, Mr. Ward? Hearing none, thank you. Sir, your name? SMITH: My name is Bob Smith. I live at 77-262 Malika Street, which -. GIFFIN: Okay. And could you please show us on the map where that is? SMITH: Yes – if I can figure this out. All right. Right there. GIFFIN: Okay. SMITH: So I do support the SMA with the amendments that Mr. Ward has proposed. I think we need the access not only down to Ali‘i but up to Kuakini, and particularly for those of us who live in Ali‘i Heights. As you can see, La‘aloa is the only way in or out. And even when you look at 7 EXHIBIT B Keauhou View Estates and the White Sands addition, La‘aloa is by far the major road in and out. There is also Queen Kalama that serves that area, but there is a problem down here with visibility; so very few people do go in and out of Queen Kalama. So essentially, La‘aloa is pretty much the best way for everyone and the only way for all those of us who live in Ali‘i Heights to get in and out. I think that I would like to emphasize, re-emphasize, the concerns that Mr. Ward raised about this area down here; this is the lower La‘aloa, or makai La‘aloa. From here on down the roadway is about, as he stated, about 20 feet wide. There is a lot of traffic, a lot of people, you know, quite a few people live in this area, and it’s downhill, fairly good grade. I don’t know what it would be in there, perhaps eight or ten percent grade, and the cars come down there pretty fast. So you not only have pedestrians but bicyclists like me. And there is a bus stop right there at Ali‘i at the bottom of La‘aloa. And from just my observation I believe there are about three different buses that stop there with various different ages of children who walk down, and must walk down La‘aloa pretty much, unless they come down Queen Kalama and then go all the way north, and that makes no sense, that’s even worse. So I think from a safety standpoint, I would agree that we need to have this section improved, particularly if we are going to have, you know, do this and then open it up. There is going to be probably more traffic. Some of the residents will choose to exit out the top, and so it will be absent that traffic; but I think overall we’ll be seeing more traffic over that lower section. My other concern also was mentioned by Mr. Ward, was the grade up here. Just personally, I’m a bicyclist who ride 80 to 100 miles a week roughly, and I don’t think I can do a 16 percent grade straight up. The street I live on is, I calculated about 17 percent, and I have to do switchbacks; if a car comes, I can go straight for a short distance. But I think there’s very few bicyclists who could make that. And we don’t get a lot of walkers up there, either -. GIFFIN: Because of the grade. SMITH: Because of the grade, yeah. So, thanks for the opportunity to testify. And that’s all that I have. Thank you. GIFFIN: You’re welcome. Commissioners, any questions of Mr. Smith? Hearing none, Mr. Smith, I have a question. You said something about how you felt eventually there would be more congestion on the makai section. Why do you say that? SMITH: Well, I think once, if this is going to be a major connector for, I believe they stated 3.5 miles, there is no connector right now, that you will get people coming south on Kuakini who perhaps need to go down here, or further south rather, to Keauhou or other areas. Particularly after the Ali‘i Bypass is completed and opened, you’ll get people coming down this road as an alternative to Kamehameha III. And so we’ll get a lot of traffic that way, even though some of the traffic gets generated in the subdivisions themselves will go out the top. It’s just my guess that we’ll probably see an increase in traffic at least at certain times of the day, particularly in the morning perhaps when the children are trying to walk down the lower portion of La‘aloa. GIFFIN: Thank you. And you also said something about there is a bus stop right at the bottom, the intersection? SMITH: Yes. GIFFIN: Is that a school bus stop, or Hele On Bus, or what is it? 8 EXHIBIT B SMITH: It’s a school bus stop. GIFFIN: Okay. SMITH: And it’s actually I think -. WARD: Both, both. SMITH: Oh, it’s both. Okay, it’s both. I didn’t know that. But it’s definitely school -. GIFFIN: Okay, so children, school children -. SMITH: Young children up to, it appears to me, perhaps high school age – so elementary through high school. GIFFIN: And then people riding the Hele On Bus. SMITH: That’s what I am told. I think I have seen people waiting down there for a Hele On Bus, adults. GIFFIN: Okay. Commissioners, once again, any questions? Hearing none, thank you very much. Ma’am, could you pronounce your last name? And did I swear you in? HOLUM: Yes, you did, you did swear me in. GIFFIN: Okay, good. HOLUM: And the last name is pronounced Holum. GIFFIN: Holum. All right. Please proceed with your testimony. HOLUM: And it is Patricia Holum. All right. I live at 77-154 La‘e La‘e, which is this property right here. And my concern is -. And I truly feel that the traffic will increase, because you have Magic Sands Beach here and Kahalu‘u just to the south of this. So people will decide probably they don’t want to take the speed bump route down Royal Poinciana and Lako and they will take this route to get to the beaches; so I truly feel that the traffic will increase. Also, my concern is for traffic calming with the speeds that would be going there. There is one speed bump currently that is right about in this area, and I have seen vehicles literally fly over that, I mean, where you will see air under their wheels. I mean there is that long stretch right along here, and the speed limit is 25. I hope it’s maintained at 25 all this way. But cars are going 40 to 45 along here, and I have seen vehicles come up this way to do construction up here, and actually have blown through this stop sign. I’ve heard the cars coming up, looked out my kitchen window and seen them not even slow down, go right cut in through here. So I do have concerns with how are they going to slow the vehicles down, because especially once you get down to this area, it is very, very narrow. All these homes, these are very small lots, some of the people barely can park their vehicle in their driveway. So it could be a real disaster waiting to happen because it is so narrow. But also I have neighbors here with a two-year old and a six-year old, neighbors here with a three-year old and a six-year old, and so my concern is with the speed of vehicles and the extra traffic that is going to be coming through there, how they are going to slow it down. I mean if they were to put in some kind of speed 9 EXHIBIT B humps that you see at Keāhole Airport, those rubberized ones, nobody is going to be doing over 25 miles an hour down that road, and that’s really what you are going to need, is to slow the traffic down. So that’s part of my concern. And also, with the sidewalks and the bicyclists, that’s going to be real tough because those cars would be flying down that from the upper road to get down. So those are my main concerns. GIFFIN: Thank you. Commissioners, any questions of Ms. Holum? I do. If I am not mistaken, the first three speakers said that they are in favor of the application, with some concerns. Where do you stand on this? HOLUM: I agree, I agree. I mean we do need that. Granted we do have, if there is a tsunami, this is the access road to get out, and this is where everybody came the last two years, well, let’s see what was it, 2009, 2010, with the tsunami sirens going, everyone evacuated up, come up this route. There is a gate that is up here. That gate is unlocked for all the residents who live anywhere along south here, makai side, to get out. So there is that access, if there is tsunami warning. GIFFIN: Mr. Smith. SMITH: I just wanted to add that that gate that she just spoke of at the top of the narrow road there is usually locked. It’s only during a disaster that the Fire Department will come and unlock it. And so it’s not meant as a regular thoroughfare. GIFFIN: Right. Thank you. Commissioners? All right. The four of you, thank you very much for coming. You may take your seats. Is there anyone else in the audience who wanted to give public testimony on this agenda item? All right, seeing none, as Daryn mentioned earlier in his background report, a Mr. – I can’t remember his first name, Daryn, what is Mr. Clapp’s first name? ARAI: Eugene Clapp -. GIFFIN: Mr. Eugene Clapp, who resides in the area and who has appointed Randy Vitousek as his representative this morning. And Randy is here this morning. Randy, could you please come forward. LEITHEAD TODD: Madam Chair. GIFFIN: Planning Director. LEITHEAD TODD: Since this is a request for a contested case standing, I’m going to leave the table. GIFFIN: Yes, thank you, thank you. I forgot. It has been a while since I chaired a contested case hearing. Will you raise your right hand, Randy? Do you swear or affirm to tell the truth on this matter before the Hawai‘i Leeward Planning Commission? VITOUSEK: Yes. GIFFIN: Please give your name. 10 EXHIBIT B VITOUSEK: Randy Vitousek. My address is 75-170 Kailua-Kona. I’m an attorney and I’m representing Onouli Farms; and the principals of Onouli Farms are Eugene and Meredith Clapp. GIFFIN: Thank you. First, Randy, the -. Let me ask if anybody else has -. Any, do you have any questions or comments in terms of this member of the public? Because if you don’t, I do. Randy, I would first like to ask you. Mr. Clapp’s property, where is it on this location map? VITOUSEK: Okay, right there, these two parcels right there. GIFFIN: Okay, so he is below, he is makai of Ali‘i Drive. VITOUSEK: That’s correct. He is right at the intersection of La‘aloa and Ali‘i Drive. GIFFIN: On the makai side. VITOUSEK: Makai side. GIFFIN: Okay, got it. Then, Daryn, in relationship to that, I have a question when you are pau, if you want to -. Okay. What is the distance between where Mr. Clapp lives, or has his property, and the beginning of the project? ARAI: Well, let me respond, and you can clarify if necessary. GIFFIN: Okay. ARAI: The existing section of La‘aloa Avenue is roughly 4,000 feet in length, so I would say that’s approximately the distance from the petitioner’s property to where the extension of La‘aloa will occur. GIFFI: Okay, Commissioners, if you want to butt in, feel free. Okay? Randy, what I would like to know from you and from what Mr. Clapp has expressed to you, what is his concern? VITOUSEK: Well, Mr. Clapp has different concerns. His core concern is going to be the treatment of the intersection between La‘aloa Avenue and Ali‘i Drive. GIFFIN: Okay. VITOUSEK: And if you will recall from the final environmental impact statement, there is discussion about different alternative designs at that location. And the, one of those alternatives was a signalization of the intersection. And the EIS concluded that given the projected traffic, it wouldn’t meet the warrants for signalization. But then I’ve noted in later submissions by the Department of Public Works they say that, when they are explaining what Phase 1 and Phase 2 is, they say the later phase may include signalization of Ali‘i Drive. And so the reason that we are involved in this phase is we, you know, like some of the other people that testified, we don’t like leaving things hanging, you know. There is an environmental impact statement that talks about, or sort of discusses some of these issues and sort of doesn’t. And what Mr. Clapp is concerned about is he doesn’t want the project to progress without the Department of Public Works specifying what the plan is for the lower part of La‘aloa and that intersection. And so he is opposed to the project going forward until the Department of Public Works has made a determination as to the lower, as to 11 EXHIBIT B the other phases of the project and has specified what their intent is with respect to those phases. I’ll point out that Mr. Clapp has received notice of these applications as an owner who is within 300 feet of the project area and is interested in the project, because it’s difficult for an agency to parcel out, or segment, a project in order to avoid public input, particularly in the context of an SMA permit where one of the fundamental tenets of the SMA law is to encourage public participation in the planning and execution processes. So we had, we had, you know, proposed to the Department of Public Works a condition to this SMA permit that simply said that in the, that they will do a supplemental EIS and another SMA permit before they proceed with the design of the lower section, but they haven’t responded to that proposed condition. And that’s why we are here. I mean, if, if the Commission would agree to put a permit condition in this permit that says that Public Works will be required to do a supplemental EIS and required to do an SMA permit before proposing modifications to the intersection between La‘aloa and Ali‘i Drive, we’d be pau. Because he doesn’t have to do it now, but he does have to, he feels he has to have the opportunity to do it. And if they are not willing to commit to do it, to do that kind of assessment and further permit in the future, then we’ll do it now. GIFFIN: Well, that was going to be my next question. You know, have you or Mr. Clapp, communicated with Public Works at all regarding this, and what kind of feedback did Public Works give you and/or Mr. Clapp? VITOUSEK: Well, you know, this has evolved rather quickly, and so, to be fair to Public Works, you know, we haven’t had a lot of time to communicate. But I have given a, I’ve given Mr. Clapp’s position and I have given a draft condition to Public Works, and I have not received their response to the drat condition. GIFFIN: Oh, okay. Could you give us some time sequence – how long ago was that? VITOUSEK: I gave them the draft condition yesterday. GIFFIN: Oh, okay -. VITOUSEK: I got a request, I got a request if, for a statement of our position and whether there was anything we can negotiate yesterday, and I gave them a draft condition yesterday. GIFFIN: Okay, okay. VITOUSEK: So my, you know, my main concern -. And in fact, you know, I mean my main concern is really that, you know, Mr. Clapp does not want to have to be involved in a contested case hearing; he doesn’t want to, you know, be in a position to slow this down or prevent it from going forward. But, you know, like the other people who testified, there’s some issues there, hanging out there, that he wants to be addressed before the project started, because once you start, it’s kind of hard to go back and get them to be clear on things. And he just takes a different tact to that, you know; he just says that, you know, if we can’t reach an agreement on it, then we’ll go to a contested case. GIFFIN: Commissioners, any other questions of Mr. Vitousek? VITOUSEK: If I may, just so you understand, Gene Clapp’s mother is Millicent Maud Greenwell Clapp, and so that’s one of the Greenwell family who -. His mother married on the mainland, 12 EXHIBIT B moved to the mainland, he grew up on the mainland, but he has been connected to Kona all along. And he has, you know, owned a condo in Onenalo, which is the bigger lot there, and then bought this property when it came up. He went and bought back some of Hōkūkano Ranch from the Pace family, which had purchased the Ranch from the Greenwells. Gene is an interesting guy; he, you know, he was a member of the 1972 U. S. Olympic team and crew, they won a silver medal in Munich. He is very connected to Hawai‘i, very connected to the ocean. He is not trying to be difficult; he is just trying to get clarity. GIFFIN: Good, good, and I’m glad that you explained the connection. BEAUDET: I have a question. GIFFIN: Brandi. BEAUDET: Thank you. I think my question is more for staff. But I do find Mr. Vitousek’s comments reasonable. And, but my question is that, you know, my understanding of this SMA permit defines the project area for the portion of the road that has not been completed yet. Yet, Mr. Clapp received notification of the application, or the permit application because he is within 300 feet of the project area. I need clarity on that because basically what we are looking for here, although his argument is reasonable, what we are trying to determine here is standing. ARAI: Understood. Thank you. And maybe later when the representatives of Public Works are brought up, maybe they can further clarify. But my understanding is that the project site as I mentioned earlier is about, just under 4,000 feet away from where the improvements are being proposed that are covered by this SMA permit. That is clearly beyond the 300-foot boundaries affected by, required by the notification requirements for an SMA permit. When Public Works first came in and did their notification for the purpose of this hearing, they identified all those properties along the entire alignment of La‘aloa, not only the proposed but also the existing alignment. So they went far in excess of what was required by your rules. When the notification, second notification, was being put together, my understanding is the thought was you already provided the first notice that was in excess of the minimum requirements, might as well go ahead and do the second notice because, you know, you already did it, right, so go ahead and complete the second notice. So again, maybe Public Works can speak to this in further detail, but that’s my understanding of the events leading up to the notification requirements. GIFFIN: Thank you, Daryn. Randy? VITOUSEK: Yeah, sure. I mean, you know, this is a special management area use permit application, and the issue is whether the party requesting a contested case hearing is directly and immediately affected in a manner that’s different from the general public by this application. The issue is not how close to the project he is. The question is whether he has a potential to be individually and personally impacted by the project. And when you have a landowner who, you know, is a resident of the area that is immediately makai of the project area and immediately makai where traffic generated by the, by this additional highway will come into the coastal area, he does have a direct and immediate impact, even if he doesn’t live within a certain, or even if his property is not within a certain number of feet of the project. And so, the proximity to the part that’s actually being improved is really not relevant to the analysis of whether he is directly and immediately impacted by the project. And I think the fact that the County has been providing him with notice all along and telling him about the contested case hearing procedures and what not demonstrates that 13 EXHIBIT B he is within the zone where he could be impacted; and because he is a property owner in that area, his interest is different from the interest of the general public. GIFFIN: Randy, is there anything else you want to say in regards to the interest of Mr. Clapp and this agenda item? VITOUSEK: Yes, I would like to. I don’t think -. I think there are a couple of things: One is I think that the, you know, we are dealing with the 2008 EIS, which is kind of stale for a 2012 project, and so I don’t see why we are in a rush, you know, to get anything done. Also where I feel was a deficiency in the EIS and in the application is they never evaluate Ali‘i Drive as a coastal resource itself. In other words, what they looked at is traffic, but you don’t look, they don’t look at the fact that Ali‘i Drive is the roadway by which most people come in contact with the coast and that driving along Ali‘i Drive is part of the coastal experience in Kona. And so they just treat it like it’s, like they count transportation numbers, but they don’t look at what the quality of the experience for someone who is driving along Ali‘i Drive is. And there is a concern that if there is signalization, this would be the first signal on Ali‘i Drive. And so there is no analysis of what the impact would be on the coastal experience on the way that the residents and visitors interact with the Kona coastline, if all of a sudden there are traffic signals in the middle of Ali‘i Drive. And so we feel that this is, and for several reasons, is an SMA issue, in other words, is a coastal resource issue that was never discussed in the EIS; Ali‘i Drive was never identified as a coastal resource in and of itself, and there is no assessment -. They say specifically there will be no impact on coastal resources as a result of this project, and that’s not a correct statement. So we feel those need to be addressed. GIFFIN: Thank you. Commissioners, any other questions of Randy Vitousek. Hearing none, thank you. Brandon? I’m sure, Brandon, you heard the comments from the public, as well as from Randy Vitousek. And we would appreciate responses from you. GONZALEZ: Thank you, Chair and the Commission, for this opportunity to clarify some matters. Did you want me to kind of address Randy’s comments? GIFFIN: Sure. GONZALEZ: I’ll do my best. GIFFIN: But also the other comments that were raised. GONZALEZ: Okay, from the public? GIFFIN: Yes. GONZALEZ: Okay. So if I get this correctly, Mr. Jose – I missed his last name. JAZMIN: Jazmin. GIFFIN: Jazmin, J-A-Z-M-I-N. GONZALEZ: Okay. So he was asking what security designs would be implemented with this connection and improved traffic flow. Security designs, such as gates I think, are put on collector roads. You know, when it comes to neighborhood security and residential security, oh, residential 14 EXHIBIT B security, the neighborhood association, but really we have to partner with the Police Department to ensure that there is adequate patrolling and awareness and even community policing officers in the area. A neighborhood watch can be started. When it comes to security along the extension, generally we make sure there is enough sight distance for the vehicles and whoever using the side of the roadway, whether it’s a bike or a pedestrian. But the extra bonus of having proper sight distance and not a lot of vegetation growing is you can kind of see if there is suspicious or unwarranted activity along the roadway. Right? So that’s how I, that’s my best answer for that aspect. What type of enhanced beautification on La‘aloa? You know, that is an excellent question. And at this point because, well, I really wasn’t prepared to answer questions on the lower portion because my application is only for the upper. You know, but we are always looking to make sure that what we put in is functional and isn’t an eyesore. It’s a fine balance, but -. So as we look at the design and finalize the design for that lower section, you know, it will be considered as best as we can, given how much money we have for the project. I mean right now that’s, that’s always there; how much do we have to spend and the submittals – and this is getting to Mr. Ward’s testimony, you know, he made a lot of good points – and the thing that was submitted to the Council was $20 million to fund the roadway. Right? And basically, that’s consistent; we’ve got $20 million for, to connect Kuakini to Ali‘i overall, that’s our picture. Right? And we need to live within our means. Mr. Ward made this awesome comment about tackling the, maybe the most challenging aspect of the connection, which is at the steepest grade along the State highway, that has the potential to incur great costs, and then seeing what we have left, and what we can do with what we have left. So we’ve been trying to be very careful with our projects in the last few years, being on time and on budget. And that’s, that’s how that incorporates into this for the design. We are going to consider it, making the road at the lower end functional and not too much of an eyesore, but we are going to have to live within our means. For Mr. Smith, his comments again were about lower La‘aloa. He mentioned a bus stop at the bottom. Again, similar in the lines to my answer to the previous question, we are going to take a look at the factors that exist today at the portion, but the lower portion design hasn’t been finalized yet. And for the woman that testified at the end about traffic will increase, I wasn’t certain if her comments dealt with the upper portion or the lower portion; I know it dealt with sidewalks and speeding concerns. And Mr. Ward talked about this, too, traffic calming. So as I mentioned previously, for our application there are four speed, they call it tables, or areas that have been designated to install speed humps as traffic calming. And for the concept of the speed humps, they are there to help educate and make the drivers aware that they are supposed to be driving at a certain speed limit. The current design isn’t to make them stop. It’s been a balance on the roadway to make sure that emergency vehicles or other vehicles that pass can pass through efficiently but not stopping traffic, because then it’s counter to creating a roadway; you build a roadway and everybody has got to stop and go, it’s like putting a stop light or something in the middle of the road. So there are four speed humps for the upper portion. For the lower portion, just in general, separate from this application, in the County for County roadways, there is a petition process where the communities can apply for speed humps on existing roadways. And it has evolved over the last ten years – I’m sorry, I’m going to try to make this short – it has evolved over the last ten years where based on feedbacks from the communities, “Why did you do this,” “I don’t like that,” we’ve come up with a system to try to be fair to the neighborhoods. Not everybody likes a speed hump, but some people do. Some people do want a speed hump along the street, but they just don’t want it in front of their driveway or their mailbox or their yard. Right? So the petition process first asks 15 EXHIBIT B two, it asks two questions basically: Would you like speed humps on your street, yes or no, and would you agree to have a speed hump in front of your house, right? And there has to be 67 percent of the people along the roadway that agree to it that want it in. Because that is two-thirds, right? We are going more than just 50 percent plus one, but two-thirds. And then the actual placement of the speed humps in front of the house is only 100 percent agreement, the street, the property owners on either side of the street, because they are okay with having it there. Because a speed hump, if there is a speed hump, there is a sign saying there is a speed hump, right? And some people just don’t want that on their property, or out in front of their property. So that is an aspect that can be explored separate from the project itself. Because La‘aloa will be widened from the existing right- of-way to the 60, it may make sense to incorporate any speed hump with any resurfacing and reconstruction. So that’s going to be, that’s the tie in there. Okay? But the petition process for the lower section, the ground, the work can be done separately. As to Mr. Vitousek’s concern -. GIFFIN: Brandon, before -. GONZALEZ: Yes. GIFFIN: You go on to what Randy said, if I understood the woman, Ms. Holum, there is a speed bump already in existence, because she spoke of seeing cars that were speeding up the road where they, you know, where you could see air, if I understood her correctly. So I don’t know exactly where on La‘aloa they are, but I thought she said that there was one already. GONZALEZ: I’ll be happy to touch base with her afterwards. GIFFIN: Oh, good. GONZALEZ: I know that two or three years ago, there was a pilot project done in the area to determine traffic calming, and there were some speed humps that were put in to kind of, so that we could assess, and I think the community could assess noise, and the impact on the motorists, and get feedback as part of the pilot project. So it is possible that there are some speed humps there, and that’s why they are there. But I’ll talk with her and get an idea what location and get more clarity. GIFFIN: Yeah, because the gist of her comments, if I understood her correctly, was that they were to no avail. GONZALEZ: Okay, thank you. ARAI: Madam Chairwoman, if, and I hope I’m correct, but my recollection it was right there. That’s where it was represented. GIFFIN: Okay, thank you. GONZALEZ: Okay. So as to the issue of standing here, my, the Department of Public Works’ attorney would like the opportunity to put some matters on the record. But the Planning Department basically explained the notification pretty much correctly. You know, this is a project that has garnered a lot of public interest for not just the region but for the west side and for the entire island, right, about connectivity, improving connectivity within communities, getting 16 EXHIBIT B functionality, as well as providing access, emergency access. And so I think the idea of providing letters to people within the region was reasonable and practical. GIFFIN: Sure. GONZALEZ: But I think when you come to the issue of standing, you have your rules that lay out the criteria to be granted standing, and that’s the framework that you work within. I mean, yeah, we may have notified people of what was going on because it’s of great interest. Whether they have the legal right to be given an enhanced status is for you to decide. You know, we had people from the public come in and offered their input, they’ve been involved from the beginning with the La‘aloa group, and they continue to come, and they continue to meet with the Department to express their concerns and make sure that we don’t forget some of the intent and some of the wishes of the community. So there is that aspect. And when you look at the application, you’ll, well, if you determine the standing issue, and then ultimately you are going to have to make a determination on the application according to 205A and the criteria there, all right, I mean it’s all set forth for you. And from the Public Works’ perspective, I said it earlier, we have traction now to get moving on this. We just completed Ane Keohokālole, we are trying to improve the circulation on this entire side. You know, the timing right now for other major road projects in the region, we are not going to be conflicting too much because that always causes concern among the residents to, “Why are you scheduling five, six road projects in the same area?” And we are just trying to get it done. And with that, you know, public safety, public health, the public interest in this, in providing this connector, and giving the public an option actually on how to go mauka-makai, right, they are going to be given more options, rather than just going 3.5 miles north, 3.5 miles south; if you’re stuck in between, what are you going to do? Right? And that’s, that’s attractive and makes sense not only to the County but I think for people in general. But I’ll turn it over to the attorney now for his legal stuff. Thank you. GIFFIN: You’re welcome. I thought I would also just interject here before we hear from you, Ryan, that I get this sense that we are all wanting to work together, that I don’t think that this position should be looked upon as being adversarial. And I understand from what Randy said that you people were just given notice by him for his client yesterday. So time may be another issue that should be brought up. Hearing that, Ryan, let’s hear your comments, please. KANAKA‘OLE: Thank you. The concerns that Commissioner Beaudet raised were, is right; right before you right now is the issue of standing. And so our position is that we are going to object to a finding of standing on multiple grounds. But before I go into that, I’m going to put forth some standards of analysis with regard to standing. So because Mr. Clapp is petitioning for standing, he has the burden of demonstrating why he has standing in this contested case, or for a contested case. And a second standard is enumerated in the Planning Commission Rules, 4-6, these are factors for standing, and these factors are also found in the petition forms themselves. And I’m going to be citing to the petition form submitted by Mr. Clapp. So to eliminate some of these, I guess, consideration of, for analysis for standing, Parts B and D of this petition – oh, do you all have a copy? GIFFIN: Yes. KANAKA‘OLE: Yes, okay. So Parts B and D of the petition does not apply to the intervenor here. Just looking at the petition, Part B is about the government agency and Part D is regarding native 17 EXHIBIT B Hawaiian rights. And the petitioner in this situation is not claiming that he is a government agency, and he is not claiming that there is an impact on traditional and customary rights, nor is he offering any evidence that he descends from the native Hawaiians who practice those rights. So B and D should not be factored into the analysis at all. Looking at Part C, the petition checks “Yes,” so the intervenor here is claiming that there is a property interest in the land involved in, or subject to, this SMA permit application request. Now, this isn’t true; as shown by Mr. Arai, the intervenor doesn’t reside on the land in question. The property is on the makai side of Ali‘i Drive, and it’s a good distance away from the area involved in this SMA permit application area. I guess it’s separated by the entire length of La‘aloa, as well as the several subdivisions in between, yeah? So Part C shouldn’t apply as well to this analysis. So we go to Part A, which is Randy also raised, whether the interest of Mr. Clapp is clearly distinguishable from the general public; and we say that it’s not. And the scope of this Commission’s analysis for this should be within the scope of the SMA property application, or SMA permit application, before you right now. And on its face, looking at the actual petition, it’s rather unclear whether Mr. Clapp has a distinguishable interest, just reading the petition itself. All we can glean from this petition is that Mr. Clapp owns property makai of the intersection at La‘aloa and Ali‘i Drive; however, there is no articulation to any demonstrable reason as to why Mr. Clapp’s interests are different from the public. Now, going beyond the face of the petition form, and I guess these were raised by Mr. Vitousek when you asked him questions regarding distinguishing himself from the general public, case law supports, there is case law that supports the standing for adjacent property owners, because they have a property interest clearly distinguishable from the general public. And several cases off the top of my head that regard this is Town versus the Land Use Commission, Mahuiki versus the Kaua‘i Planning Commission, East Diamondhead Association versus the Zoning Board of Appeals that’s a Honolulu case, I mean Honolulu. But the difference in this actual petition for standing, though, from that case law is that the intervenors in this situation, his property is not adjacent to the area, yeah? The property is not even on La‘aloa itself; it’s oceanfront property across Ali‘i Drive, or across Ali‘i Drive from La‘aloa Street. Also, there is supporting case law regarding standing for landowners who are – now I’m quoting directly from this case Dalton versus City and County of Honolulu – individuals living within a very close proximity to the proposed development have standing as well. And we are going to, our position is that the intervenor’s property is not in very close proximity. Now in the Dalton case, Mr. Dalton, who challenged the City and County of Honolulu’s decision, was a landowner that lived across the street from the project, so it wasn’t adjoining but it was very close proximity; he lived directly across the street. That’s not the case here. As I explained previously, there is an entire length of road and multiple subdivisions separating the area for this SMA permit application and Mr. Clapp. Now, Mr. Vitousek also raised an issue of Ali‘i Drive as a coastal resource. That for the purposes of deciding standing, it’s not, it shouldn’t be considered because claiming that Ali‘i Drive is a coastal resource is not an interest clearly distinguishable from the general public. The general public has an interest in Ali‘i Drive as well, yeah? And Mr. Vitousek also raised an issue regarding a traffic impact on the intersection; and that too is not distinguishable from the public, as the general public has an interest in traffic mitigation as well. That’s it. Thank you. GIFFIN: Commissioners, any questions of the representatives from the Public Works Department? Okay, hearing none, I know you want to come up because I can see it in your body language, Randy. However, what I would like to do is find out if the Planning Director, being a party, would like to add anything as well. And I’ll excuse Brandon and Ryan right now. Thank you for raising 18 EXHIBIT B your right hands. Do you solemnly swear to tell the truth on this agenda item here before the Hawai‘i Leeward Planning Commission? LEITHEAD TODD: I do. GIFFIN: Thank you. Starting with you, Chris. BRILHANTE: Bill. GIFFIN: I mean Bill. BRILHANTE: I do as well, as long as you don’t call me Chris. GIFFIN: Okay. BJ? LEITHEAD TODD: Basically, we agree with the arguments made by the Department of Public Works, and also want to kind of reiterate that we need to focus on what the purpose of an SMA permit is, which is to protect those resources within the shoreline area. And so a lot of the discussion really has not centered on the area of construction, and whether it has an impact on those resources that the SMA is supposed to protect; it’s really been extraneous to that. And so I think there are some limitations as to what you can and cannot do with an SMA permit. We also object to standing for the same reasons that the DPW enunciated. BRILHANTE: Good afternoon, or good morning, Chair – we are not there yet, but I think we are slowly getting there. That’s true, Ms. Leithead Todd has correctly stated our position is that the Planning Director does have some concerns, and we’ll raise objection as it relates to the specific issue regarding standing. You know, Mr. Kanaka‘ole clearly stated, I mean, you know, his concerns as it relates to the criteria set forth under your own rules as relates to standing, and I too have questions as to whether or not Mr. Clapp has met any of those requirements to establish standing. Again, you know, the purpose of the SMA is as it relates to environmental or cultural impacts in the area. And, you know, I’m having problems and I’m having a real difficulty in my mind just clearly establishing how Mr. Clapp’s interest is distinguishable from the general public. The only issues that I’ve heard raised is traffic congestion, streetlight and the like. And, you know, being stuck on Ali‘i Drive on numerous occasions when it’s a Saturday or a Sunday and the weather is beautiful, which fortunately for the Kona residents it’s much more often than in Hilo, you know, I have traffic concerns when I’m stuck there, and I don’t think it’s any different than Mr. Clapp’s concerns. And so for that, under that principle, I feel that there has been no establishment of standing here. I think if Mr. Clapp does have concerns regarding a staleness of the EA or the like, that might be for a different venue, not here in front of the Planning Commission. GIFFIN: Commissioners, any questions of the Planning Director and/or her legal counsel? Hearing none, thank you. Okay, Randy. VITOUSEK: Madam Chair, as you may recall, I was the attorney who represented Nansei Hawai‘i in an application for an SMA permit for the Kohanaiki or Kohanaiki Resort. And I couldn’t attend the final hearing on standing because my daughter was born that day and I had to be in Honolulu. And the Planning Commission denied standing to someone who lived in Honokōhau in Kailua- Kona because they felt that they did not reside on or adjacent to Kohanaiki. And those people argued that they had an interest in it because they went there and they used it and they cared about 19 EXHIBIT B it. And so the Planning Commission granted the SMA permit. There was an appeal. And as chance would have it, I argued the case in the Hawai‘i Supreme Court on my daughter’s sixth birthday, and that’s when the court finally reversed the Planning Commission and found that the State of Hawai‘i has very liberal standards for standing, particularly in SMA matters where the point is to get public participation in the process. And so I personally learned from that. And when I’m representing developers or applicants, I do not fight standing because it’s a loosing proposition. You can win now but five, six years later the court is going to come back and tell you no, we look, we consider it liberally. And there is a series of cases that they didn’t cite for either holds specifically that. So just to be clear, the standards for standing under your rules are, one, is the interest, is “His or her interest is clearly distinguishable from that of the general public.” And one of the things you look to in that is, is there something that localizes this person’s interest and makes it different. And owning property and residing at the exact location where the road that’s going to be developed under this SMA permit connects to Ali‘i Drive and connects to the coastline is different; that interest is different in quality from the interest of the general public. The Clapps are residents of the coastline; they care deeply about the quality of the coastal environment. It is part of their daily lives when they are living there. And they are concerned that the additional impacts of creating a new highway, which delivers people to the coastline right there and right at their property may have adverse impacts on them, and that, that their interest is different from the general public interest because this road conveys people right to their property. Another criteria, the one that Mr. Kanaka‘ole said it was untrue, is do you have some property interest in the land involved in the subject request. And that’s a difficult issue because if you look at the designs for the intersection, they appear to be considerably wider – this is the Ali‘i Drive- La‘aloa intersection, the proposed changes – they appear to be considerably wider than the current Ali‘i Drive, suggesting that they will have to condemn portions of his property in order to widen that intersection because they are proposing storage lanes and turning lanes on either side. So even if that’s not immediately part of this application, it is something that is enabled by this application and remains unclear. There were condemnations of land or acquisitions of land for the upper part, we anticipate there may be for the lower part. That’s an issue we’ve talked about, or tried to talk about with the Department. Nobody has mentioned (b)4, and that’s not even on the form, and it says, “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.” And in this situation where the project delivers people right to their property on the coastline, that may be injury in fact; in other words, even if the roadway ends further, it’s a new road. As everybody said, it’s going to convey people from mauka to the beach into the special management area and right exactly at their property. And so there is clearly a threatened injury in fact to their use and enjoyment of the property and to their use and enjoyment of the coastal zone. And so it’s, you know, it’s also, you know, the next section talks about appeal from denials of standing. And as I hoped I conveyed to the Planning Department yesterday, we are very, I mean, excuse me, the Department of Public Works yesterday, we are very willing to agree to a condition, which said that they would consider these issues if and when they move to develop the other part. But if they won’t do that, then my client is committed to go litigation, and I’m not trying to, I’m just trying to relay to you what I said to them. 20 EXHIBIT B So it’s our sincere hope that the petition for a contested case hearing is granted; if it isn’t, I’m still going to offer the condition because if the condition is in there, then we may not have to appeal a denial. I hope it’s -. Are there any questions? GIFFIN: Yeah, I was just going to ask. Commissioners? Yes, Mr. Hickcox. HICKCOX: Mr. Vitousek, do the Clapps live here full-? VITOUSEK: No, not fulltime. They live here portions of the year. HICKCOX: How much time do they spend living here? VITOUSEK: My guess is they are here about a third of the year, Mr. Hickcox. HICKCOX: Okay, thank you. GIFFIN: Any other questions? Mr. Beaudet. BEAUDET: Mr. Vitousek, just for more clarity on my part, initially when you came up, you know, my take away from that was that the Clapps were petitioning for standing because of some delayed action on the Public Works’ side of improvements to La‘aloa; there were some commitments that they had committed to in the development of that stretch of road. VITOUSEK: Well, my, no, their concern was that they, that it was all treated as one project in this, and then, but they’ve never specified what their treatment of the lower portion of it is going to be. And, you know, even though he’s primarily concerned about what the treatment is in the lower portion, his concern is he wants those issues determined and resolved before they go ahead with the project. BEAUDET: Okay, so his, because, you know, on your return to the table, it appears that your client is now in opposition of this permit because of the threat of injury that he may have, should there be more traffic at the intersection of Ali‘i and La‘aloa. So is he, is your client in opposition of the completion of the road or is your client more concerned with how the connectivity with Ali‘i Drive is impacted and remediated once the completion of La‘aloa is finalized? VITOUSEK: My client stands to be injured or adversely impacted by the project. And my client wants to get into a process where he can have his input in a formalized way and he can advocate to the Commission that the Commission, if it grants a permit, that it includes conditions which protects his interest. And that’s, so the stage we’re at now is just a fundamental stage of showing whether he has an interest that’s different from the general public. And what position he takes in a contested case hearing will be up to him. I’m just sort of put in a position where I have to show that, what his injury is from this project, from this phase of the project. And that’s what I was trying to do. Basically, what we are trying to do is get in a situation where we can try to ensure that if a permit is issued, that includes conditions that protect the interest of Mr. Clapp and other people who are similarly situated in the area. GIFFIN: Thank you very much. Commissioners, any other questions of Randy? Ivan. 21 EXHIBIT B TORIGOE: Mr. Vitousek, I just want to ask you. You mentioned that there was a Kohanaiki related case that you argued before the Supreme Court. Did that result in a published opinion? VITOUSEK: Public Access Shoreline Hawai‘i versus Hawai‘i County Planning Commission. TORIGOE: Okay, I just wanted to find out which one that was. So it’s the Public Access Shoreline Hawai‘i case. Okay, thank you. GIFFIN: Okay. Any other questions? Commissioners, I would feel very comfortable, if we could have some sort of, not some sort of, if we could have executive session with our legal counsel. So if one of you would be comfortable in suggesting on the record, I would really appreciate that. NELSON: So move. GIFFIN: Do I hear a second? BEAUDET: Second. GIFFIN: All those in favor of going into executive session, please say aye. COMMISSIONERS: Aye. GIFFIN: Anyone opposed? All right. Thank you. We are in executive session. ARAI: The room must be vacated. Thank you. EXECUTIVE SESSION The Commission went into executive session at 11:55 a.m. and came out of executive session at 12:35 p.m. by a motion made by Commissioner Iokepa, seconded by Commissioner Nelson, and unanimously carried by a voice vote of all Commissioners in attendance. GIFFIN: The meeting will come back to order. It is after much discussion that the Commission would like to continue this discussion until our next meeting for more information on the details of the intersection of the current design and of the proposed future design. In addition, we hope that this, we would like this time to allow Public Works to review and respond to the concerns of the applicant for standing. We would like all of this information that would come from this kind of time, and hopefully discussion, to be forthcoming by ten working days prior to our next meeting. VITOUSEK: May I address the Commission for just a minute? GIFFIN: Hang on. VITOUSEK: Oh, I’m sorry. GIFFIN: Commissioners, I wanted to turn to you and find out from you if that was what we all believed in and what we agreed to, and if there was anything else you individually wanted to add. IOKEPA: Madam Chair -. 22 EXHIBIT B GIFFIN: Yes. IOKEPA: Absolutely, clearly said what we had discussed. GIFFIN: Thank you. Any other comments? All right. Daryn? TORIGOE: Madam Chair, hold on. GIFFIN: Ivan. TORIGOE: Yeah, I think Mr. Vitousek had something that he wanted to -. GIFFIN: Yeah, I could tell. VITOUSEK: Very briefly. As Mr. Torigoe can tell you, under Hawai‘i Revised Statutes Chapter 91-8.5, the Commission can refer a matter to mediation for 30 days between meetings. And so I would, you know, welcome the opportunity to mediate, or welcome using a County, you know, someone from the County to mediate. I mean, all I’m trying to say is if we could formalize the process under which we try to get together and talk about it, that is something we would welcome. And the legislature, you know, changed the administrative procedures act in order to have a specific statute that says in contested case hearings the Commission can refer it to mediation for a period of 30 days. GIFFIN: Having just heard from Mr. Vitousek, Public Works? GONZALEZ: Thank you. Madam Chair, can I, sorry, but could I ask you to repeat the first point about continuing? I got “for details of current design,” and I was too slow to write. GIFFIN: And of the future design. BEAUDET: Comment, Chair? GIFFIN: Brandi. BEAUDET: Brandon, that second part of the request was, you know, Page 25 of the background report, there is a rendering of the intersection improvements on Ali‘i Drive. But without -. GONZALEZ: That’s the scenario. BEAUDET: Yeah, that’s, it’s a scenario. GONZALES: One of the scenarios, right? BEAUDET: So what we wanted to, what we were hoping was, is we could have that as an overlay with the current intersection, or alignment of Ali‘i Drive. That would be helpful for us. GONZALEZ: Okay. Secondly, as to the suggestion for mediation, which is excellent, but I don’t think we are at the stage yet because the standing has yet to be determined. And in the interest of st notifying the Commission, you know, Mr. Vitousek and I spoke on September 21 when he initially 23 EXHIBIT B asked for information, and then he submitted his petition for standing right before the deadline, October. And just last night I got an email about some kind of condition where we were, would have to agree to a full EIS and SMA approval for the lower section when we come in – not consider but have to agree – if I recall the email correctly. So, you know, that’s the chronology of events up to this point. So, thank you for giving us the opportunity, more time to give you guys more information to make your decision. Thank you. GIFFIN: Planning Director, as a party, would you like to respond? None? LEITHEAD TODD: No. GIFFIN: Okay. Commissioners, your feelings on the suggestion from Mr. Vitousek in mediation? HICKCOX: Not there yet. Madam Chair, I don’t think we are there yet. GIFFIN: Okay. So you think that the wording of what we requested should stay in? HICKCOX: Yes, ma’am. GIFFIN: Okay. Any other comments? Brandi. BEAUDET: I think it was a good suggestion and we’ll take it into consideration. But I don’t think the decision, or our motion on it should be, should suffice at this moment in time. GIFFIN: Mr. Torigoe. TORIGOE: Okay, so, just for the record, at this point in time, you as the presiding officer under your contested case rules, you are basically continuing the matter for the reason stated? Is that what is happening? GIFFIN: Yes. TORIGOE: Okay, so no motion required at this point. GIFFIN: Absolutely. TORIGOE: Okay. And I don’t know if you, there is any more clarity regarding the exact type of information that the Commissioners would like. Is there anything else you want to say about that? GIFFIN: Commissioners, is there anything more specific that you would like to have discussed between the applicant for standing and Public Works and/or the Planning Director? TORIGOE: Yeah, actually, I was kind of more getting to if there are specific types of plans or, you know, documentation -. GIFFIN: Oh, I see what you mean. Okay. So is there anything else that you want to have them come up with in addition to what we talked about for the intersection? Brandi. 24 EXHIBIT B BEAUDET: You know, I’m not sure as to what are the proposed improvements outside of the specific project area or, you know, of the La‘aloa that is already in use. Maybe some insight to that, just some understanding as to what we have today on the ground as compared to proposed improvements, and if there are proposed improvements, what is Public Works’ position or situation on the timing of implementation, just so that we can have a better understanding of the project as a whole. GIFFIN: Commissioners, any other comments or directions? Hearing none, I think that that is how, the sense of how we felt after being in executive session, and I hope that our suggestion is well taken, Brandon and Mr. Vitousek. So at least for today Agenda Item No. 2 is we are through discussing it. The discussion ended at 12:45 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 25 EXHIBIT B