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HomeMy WebLinkAbout2012-12-06 Windward Transcript HI VOLCANO WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT DECEMBER 6, 2012 PLANNING DIRECTOR INITIATED REVOCATION OF A regularly advertised hearing on the SPECIAL PERMIT 1122 (HAWAI‘I’S VOLCANO CIRCUS) was called to order at 11:39 a.m. in the County of Hawai‘i, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with Chairman Pro Tem Dean Au presiding. COMMISSIONERS PRESENT: Dean Au, Ronald Gonzales, Wallace Ishibashi and Stephen Ono STAFF PRESENT: Ryan Kanakaole (Deputy Corporation Counsel), B. J. Leithead Todd (Planning Director), Daryn Arai (Planning Program Manager), Phyllis Fujimoto (Staff Planner), Maija Cottle (Staff Planner), Jeff Darrow (Staff Planner), and Sharon Nomura (Secretary) ABSENT AND EXCUSED: Raylene Moses And approximately 16 people from the public in attendance. APPLICANT: PLANNING DIRECTOR INITIATED Continued hearing regarding Non-Compliance with conditions of approval of Special Permit No. 1122 (SPP 1122) and special permit revocation proceedings pursuant to Condition No. 8 of SPP 1122. SPP 1122 was issued to Hawaii’s Volcano Circus to allow the establishment of a performing arts educational center on 2.5 acres of land within a larger 10-acre site situated within the State Land Use Agricultural District. The properties are located within and adjacent to the west side of Kalapana Sea View Estates subdivision near the intersection of West Pohakupele Loop and Kehauopuna Street, Puna, Hawai‘i, TMK: 1-2-009: 034 and 1-2-038: 050. AU: Moving on to the next agendized item which is Applicant No. 4, Planning Director initiated continued hearing regarding Non-Compliance with conditions of approval of Special Permit No. 1122. Special permit revocation proceedings to Condition No. 8 of SPP 1122. SPP 1122 was issued to Hawaii’s Volcano Circus to allow the establishment of a performing arts educational center on 2.5 acres of land within a larger 10-acre site situated within the State Land Use Agricultural District. The properties are located within and adjacent to the west side of Kalapana Sea View Estates subdivision near the intersection of West Pohakupele Loop and Kehauopuna Street, Puna, Hawai‘i, TMK: 1-2-009: 034 and 1-2-038: 050. So, staff presentation. DARROW: Thank you, Mr. Chairman. If I can direct the Commission’s attention to our presentation. As mentioned, this is, next application is initiated by the Planning Director. It was actually a hearing regarding noncompliance with conditions of approval of Special Permit No. 1122; and we were rd moving towards revocation of that permit. At our last hearing, May 3, the Planning Commission voted to continue that matter. The Planning Commission continued the revocation hearing until December 6, 2012 to allow the applicant to submit an amendment under the existing special permit. 1 EXHIBIT C The applicant submitted the amendment to Special Permit No. 1122 on November 7, 2012 and it was accepted by the Planning Department on November 29, 2012 after additional information requested by the Planning Department was submitted. Since the May 3, 2012 Planning Commission hearing, the Planning Department has not received any complaints regarding operations at Hawai‘i Volcano Circus. There were inquiries made regarding the farmers market and how long they are allowed to operate, but that’s all we’ve received. The applicant has submitted information regarding the unpermitted structures and how these will be resolved. This particular matrix information that was provided to the applicants, it does not have a date on it but it has a No. 4 in the corner. We’ve only received two correspondences regarding this issue today. Another one was submitted and has, in opposition, and they have some issues that they’re requesting the Commission to look at. And, again, I don’t see a date on that particular letter. The Planning Department is recommending continuance of this particular agenda item at the call of the Planning Director as the Department continues to work with the applicant to process the recently submitted amendment application. So we’re requesting that the revocation, this Planning Director initiated application, be continued as we work through the amendment application. They’re considered separately. If everything goes well with the amendment, then most likely we can withdraw the revocation. If things don’t go so well that’s all still on the table. And so we can bring that up at another hearing. Just for your information, again, the reason that brought us here was noncompliance of several conditions of the permit. The majority of the issues have been resolved in regards to we haven’t been having public performances, we haven’t been having complaints of noise or anything like that. We still have this issue in regards to the unpermitted structures that needs to be resolved with the applicant and the Planning Department. So the Planning Department is working with the applicant to set up a site inspection in which several departments will be conducting a site inspection. Among them would be the Department of Public Works in regards to pertinent information, as well as Real Property Tax in regards to the taxing issues of the structures, and the Planning Department. In this particular matrix that was submitted by the applicant, they do put possible resolutions; but, again, we need to work through these. And they refer on the second and third pages, they identify the structures by numerical, I’m sorry, alphabetical letters so you can kind of refer to which structures they’re referring to on the matrix. With that, that concludes our presentation. Are there any questions? AU: I have a question. DARROW: Sure. AU: During this revocation process, we set forth in May the sixth month -, to come back by th December 6, which is today. Is there a, is there a timeframe, or do we set it? DARROW: Well, the Planning Commission has the authority. We have received the application that was requested by the Planning Commission that they submit. It does, as mentioned at the last hearing, it does take a little bit time to process that. And if they submitted it in a timely manner we still need a 2 EXHIBIT C little bit more time. We just didn’t know what the Planning Commission’s schedule was after January so we couldn’t identify a later hearing date. At this point if everything goes well, the date was th November 29. We need to bring it back to the Commission within a certain timeframe. But the other issue is that there may be other matters that may put this agenda item on hold until they’re resolved; for example, they’re requesting and part of the amendment, to increase the enrollment to the Charter School. What happened is in review of that in comparison to the traffic engineer trip guidelines, it appears to trip the need for a traffic report. So that may be requested prior to coming to the hearing again, the similar situation as we had on the first agenda, so that they can work through that and we can get a recommendation as to traffic issues. And then, secondly, we have these issues regarding the unpermitted structures that we need to work through. We may be able to work through it within that 90-day frame; if not, we need to ask for a little bit more time to resolve those issues before coming back to the Commission. AU: Okay so the applicant has been doing their part in working with the Planning Department -? DARROW: Yes. AU: And they’ve been abiding by the rules and -? DARROW: Yes. AU: Okay. Thank you. Any other questions for staff? GONZALES: I have a question. So with the continuance then are we asking for a continuance for 90 days and then go from there, or is that open ended? DARROW: You could do that, and then we could come back and ask -. If things aren’t resolved at that time we could ask for another continuance; or we can just keep it open ended and allow the special permit amendment to take its course. And that would be coming to the Commission hopefully within the 90-day timeframe. If not, it may be a little after that to allow the applicants to resolve and work with the Planning Department in resolving these several issues. GONZALES: Thank you. AU: Okay, our counsel Ryan Kanakaole has something to say. KANAKAOLE: Regarding the date, the requirement for a date, for this type of continuance or motion to continue you can continue to a certain event, which would be what’s on the screen behind everyone, or you can set it for a certain date. AU: Okay, thank you. DARROW: Thank you. 3 EXHIBIT C AU: Thank you, Jeff. Applicant, you can sit down. And I think you guys are all sworn in. Okay, can you raise your right hand. Do you affirm to tell the truth in front of the Windward Planning Commission today? REPRESENTATIVES: I will. AU: Thank you. So you guys are, just go ahead, Mr. Hong. HONG: Okay, thank you. Back in May 2012 I started our presentation, quoting from John Lennon’s “Watching the Wheels” song about, you know, “There are no problems, only solutions.” And I think that you can see in terms of our progress that we are trying to find solutions. I hate to muddy the waters but I’d like to throw in a third possibility for the Commission’s consideration – that is to dismiss the revocation proceedings and allow us to go on with the amended special permit application. Because I can understand from the Planning Department’s perspective it’s a different song, it’s hammer time. So they’re using that revocation as a hammer for us, and I can understand that. However, it still is, you know, different processes and procedures. And I think it’s cleaner if we dismiss the revocation, because we met that condition of turning in that amendment application, then allow us the process, or to go through the process of working with the Planning Commission with respect to that amended application. One of the concerns we have is, because this is a small charter school, is that fund raising is their life’s blood. And we haven’t had any complaints since May, we haven’t had any functions since May where we could actually get or earn money in these kinds of fund raising activities. That’s one of my concerns. Having said that, what I would like to do is introduce Jenna Way who has a statement regarding the proposal; and I’d like Jenna to address that. Thank you. WAY: Good morning. AU: Excuse me, excuse me. I forgot to mention earlier, before we proceed from our break, but we will not have quorum for the geothermal initiative. So if you are here to testify or if you’re waiting for that, we will not be seeing that one. We will not have a quorum. Commissioner Ishibashi will not be, well, he already recused himself. Ryan? PETRICCI: You will be accepting testimony though? KANAKAOLE: Yes. Pursuant to recent amendments to the Sunshine Law we are required to accept testimony oral and written submitted for today’s agenda, our agendized meeting. All of the testimony submitted will be transcribed and presented to all the Commissioners prior to the reconvening of the Commission. AU: Okay, I’m sorry. Go ahead. So please state your name, where you reside, and you may begin. WAY: My name is Jenna Way and I reside in Kalapana, Sea View Estates. And I am the Executive Director of Hawai‘i Volcano Circus. We own and operate the SPACE Performing Arts Center. I have rd held this position since April 2007. I apologize for not attending the meeting on May 3 when this matter first came before you. I was on the mainland due to a family emergency. With me today, along 4 EXHIBIT C with Mr. Hong and Ms. Lee Loy, is Graham Ellis, the Board’s Chair of Hawaii’s Volcano Circus. I am thankful to Graham for representing our organization in the last meeting. However, I want you all to know that I am the person responsible for all the decision making and all the day-to-day operations of Hawaii’s Volcano Circus, not Mr. Ellis. When we were here in May, you told us to get the amendment to our Special Use Permit submitted by December and we did. I am relieved and happy to hear the Planning Department recommending continuing the revocation proceedings. Thank you to Mr. Darrow and Ms. Leithead Todd. We support any proposed interim guidelines that might be put into place, and we will have no problems complying with them. Just as we have had no complaints against us since the May meeting, I anticipate no problems operating until we can join you again, I hope, in the very near future to consider our amendment to our Special Use Permit, which we have already submitted. From the time that we received the cease and desist order, we have been working cooperatively with the Planning Department to solve issues. We fully understand and appreciate their position and are thankful to the guidance that they have given us, which has allowed us to progress towards a solution that meets the needs of all the stakeholders. On behalf of our SPACE community, I especially want to thank Ms. Leithead Todd for allowing us to continue to house an elementary education program operated by Hawai‘i Academy of Arts and Science Public Charter School and to operate our weekly farmers market during this time while we are working to finalize our amendment. I cannot, I cannot overstate the importance of the school and the market to our community in Lower Puna. Throughout this matter, we have been very proactive in meeting the needs and addressing the concerns of those who were unhappy with our operation. Immediately following the receipt of the cease and desist order, we held a community meeting to gather input from our extended community, both supporters and detractors. We heard the concerns expressed and implemented the suggestion of one of our neighbors to hold a smaller facilitated meeting with those most severely impacted, our closest neighbors. I was very pleased when twenty-some people attended that meeting, held on a neutral ground at a neighbor’s house. A professional councilor, arranged for by the neighbor hosting the meeting, served as a facilitator. In this meeting, we had a detailed discussion and received suggestions from our neighbors about their concerns and suggestions for future operations at SPACE. We held a follow-up meeting to receive input on a proposal that we had prepared, which later became the foundation of the amendment which we submitted. I believe that these meetings and the dialogues they stimulated were a wonderful thing. In fact, as a result, one of our neighbors who had complaints about us was open-minded enough to accept our offer to join the SPACE Advisory Committee to give guidance in our decision making process. I was also able to assure our neighbors that we intended to take their concerns seriously and were not planning to continue our activities as before. The most frequent complaint we received concerned the level of noise coming from SPACE during events. Even prior to the cease and desist order, we had taken several steps to reduce the sound coming from SPACE. They included: Landscaping around SPACE including planting trees, shrubs and other plants which, when mature, will assist in providing a barrier 5 EXHIBIT C Installing a sound deflecting wall outside of the back door of our pavilion at SPACE, which our events are held. Installing heavy drapes which could be dropped around the open sides of our pavilion during events. Topping off the ironwood trees (which we’ve done twice now) which form a barrier between SPACE and the Sea View Subdivision in order to encourage growth and for them to fill in and get more bushy. We are fortunate enough to have two qualified builder/designers on our Advisory Committee. And after collecting detailed data using a decibel meter which we purchased, they went to work designing a noise reduction system. Then it was up to us to find funding for the proposed project. I’m pleased to say that we’ve secured $50,000 for noise reduction at SPACE! However receipt of the funds is dependent upon approval of the amendment to our Special Use Permit. More recently, after we retained the services of Mr. Hong and Ms. Lee Loy, we held a stakeholders meeting. At this meeting, we again discussed our proposal for our amendment and our plans for addressing concerns. I have been extremely vigilant and rigid about following the cease and desist order issued to us. Other than the one event, which led to the May meeting, we have been in full compliance. And, please remember, we have concerns ourselves about that event and only moved forward in allowing the Village Green Society, who are the landowners of the property on which SPACE is built, to continue the event after consulting with our attorney who advised us that it would not violate the cease and desist order. My intention here is not to blame our attorneys, but to demonstrate the importance we placed on complying with the orders of the Planning Department. I can’t tell you how many times I’ve had to say “no” to people requesting to hold events at SPACE or to hold classes or family gatherings or community meetings. I take the cease and desist order so seriously that I won’t even allow anyone to stand or walk around our farmer’s market strumming their ukulele or playing any kind of instrument because the Planning Department told me that performing at the market was not allowed. rd After the May 3 meeting, the Planning Director issued a letter to us detailing the conditions under which we would need to operate. Again, I have followed those without exception. And the Planning Department has received no complaints. However, please understand that we are a small, struggling non-profit organization. And as a result of these restrictions on performances and on fundraising at SPACE in general, we are in a dire financial situation. Critical sources of revenue have been cut off from us. And as you might imagine, income from grants is down, too, due to more competition for the reduced amount of funds available from government agencies and private foundations. I have cut expenses in every way you can imagine and then more. And we’re still struggling. As a last resort, I finally had to cut my own hours…it was the only thing that was left! And even then, there have been times when I haven’t been able to pay myself on schedule, resulting in a financial hardship for my own family. You know how people refer to being on a shoe-string budget? Well, we aren’t even on a she-string budget. We’re like on a half of a shoestring that’s all frayed out and just a big mess. You know it’s bad when you’re contemplating laying off your own self, which I’ve done before. 6 EXHIBIT C In conclusion, I appreciate the opportunity to speak to you and for you to have a chance to meet me. I urge you to dismiss the revocation proceedings and allow us to move forward with the amendment process. I hope that you have a better understanding of the lengths to which we have gone in order to follow the directives of the Planning Department and to make peace with our neighborhood. Not only do I work in Sea View, I live there, too, right across the street from SPACE. So SPACE’s neighbors are my neighbors, and I see these people on a daily basis. And I don’t want to work and live in a place where there is an antagonistic atmosphere. Please believe me when I say that I can work together with my community and the Planning Department, and that I know we will be able to find a solution. Thank you. AU: Thank you. Any questions? Anybody else would like to speak for the applicant? No? Okay, well, any questions, Commissioners? Okay, thank you very much. We’ll move into public testimony. We have four people signed up to testify - Michael Flynn, Dena Smith Givens, Robert Petricci, and Maura Herling, Herlihy. Is there a fourth testifier? Not here, only three? PUBLIC: Yes. AU: Okay. Please raise your right hand for those of you who haven’t -. Do you swear to tell the truth in front of the Windward Planning Commission today? TESTIFIERS: I do. AU: Okay, very good. I’ll start with Michael Flynn. Please state your name, where you reside, and you have three minutes. Are you Michael? PETRICCI: No, Robert Petricci. AU: Okay, okay. Dena Smith Givens; and you’ve already stated your name so you can proceed, your three minutes. GIVENS: Yes, okay, very good. As a resident of Belly Acres, I’m a member of a close-knit ohana that is the life blood of SPACE. Two of my six children are currently training five days a week in the Circuit Arts. My 18-year old daughter, a freshman this year at UH works part-time at the farmers market on Saturdays. You may recall my daughter Bailey who bravely spoke at our last appearance before the Planning Commission in May. That was Bailey’s first public speech. She was so thrilled to not only have the opportunity to share her passion for SPACE and the valuable community services that it provides for her and for others, she was also really excited to have a public forum in which to practice her speaking skills. You see, we are a performing arts center. However, due to the arduous task of coming into alignment with the Planning Commission requirements, our children are not allowed to perform. That is like asking a bird not to fly. I wish that all of you could observe these children at circus class, which by the way I invite you all to do. There are children of all ages, stages and abilities. It’s so exciting to watch how they all thrive under the gentle and caring direction of Mr. Ellis. Did any of you attend the Pahoa holiday parade this past weekend? Well, we won first prize. We were the largest and most colorful group in the procession. But you know what was the best part about it? We actually had an opportunity to perform, to be in front of the public. You should have seen the excitement on the faces of those children and the miles of smiles of the public admiring and 7 EXHIBIT C adoring them. Besides the other important services that we provide at SPACE, such as the weekly farmers market and the HAAS Charter School satellite, we are first and foremost a performance arts community center. DARROW: One minute. GIVENS: Thank you. These children need to spread their wings and fly. We are all at your mercy right now. And we respectfully request that you dismiss the revocation and, to our special permit, so that we can work together moving forward, to help us in coming into compliance for the benefit of our community, and most importantly for the benefit of these children. Thank you. AU: Thank you. Any questions for the testifier? Thank you. Robert Petricci, please state your name, where you reside; and you have three minutes. PETRICCI: Aloha. Robert Petricci, I’ve lived in Pohoiki, Hawai‘i, in Puna, for 31 years. And I just, I want to thank the Commission for continuing the hearing and giving SPACE a chance. This is a community model that I think should be copied. And, you know, we talk, government talks often about the need for sustainability, infrastructure, roads and all these lacking things, and the roads in Puna, and all these things that are lacking in Puna; and it’s true. And now you have a community group that comes, and they provide a market, they provide a school, they provide all of these opportunities without any cost to the government, you know, and taking traffic off the road so we’re not travelling -. I really just hope you’ll really support this model. This is a, this is something that I think we should see more of. And, so please work with SPACE to keep that alive. I hear that they’re struggling financially now and that we may lose this because of what’s happening; and that would be a big crime, that would be terrible. So please support them. Thank you. AU: Thank you. Any questions for the testifier? Planning Director? LEITHEAD TODD: Mr. Petricci, you know, the Planning Department and the County in general supports trying to diversify economy, diversify services and provide other opportunities. The problem that we have with a lot of home grown operations that have expanded in areas such as Puna is that the expectations of other people who have bought land in subdivisions and built homes, they’ve a certain expectation as to the type of community they’re moving into. And they buy an agricultural lot, they think they’re in an agricultural community. Or they buy something, in many cases Puna people think it’s mainly residential purposes that they’re purchasing into subdivisions. And when an activity next door starts to grow, starts to create additional traffic in a subdivision, starts to create additional noise in a subdivision, it frequently comes as a surprise to the neighbors or is not welcomed by other people in the community. It may be welcomed to the people who frequent the farmers market or use the services. But it frequently runs into problems with the neighbors, which is why it’s typically better to come in and apply for the permit first, notify the neighbors as to what you’re going to do and the full extent of what you’re going to do, than to expand what you’re doing beyond what your neighbors are expecting, and then inevitably the County gets the complaints. And that’s exactly what happened here, is that we had an original permit, it expanded far beyond what the original permit was, and then we started getting multiple complaints about noise and traffic from people in the community. So we walk a delicate balance between trying not to, trying to allow people the time to bring their places into compliance, but also balancing the needs of the rest of the community and the neighbors who are 8 EXHIBIT C property owners and residents of, in this case, this particular subdivision. But this is not unique to this particular application, it’s not unique to Puna. This happens all over the island. Sometimes it happens as people are ignorant as to what the limitations are on the use of agricultural land because of the multi-layer state land use regulations as well as county regulations. But the ultimate goal is to both legitimize activities and also to give notice to surrounding community as to the extent of the activities and to put, you know, some, usually regulations on hours of operation, in some cases we even have decibel levels in other areas. We’ve done things where the speakers have to be turned in a particular direction so they’re not facing outward from activities. But it’s mainly trying to balance what is one segment of the community’s need for services against the needs of the surrounding community to have some, you know, quiet enjoyment of their residences and property. And so it sometimes, we just want to avoid confrontation. And usually if the neighbors know that you’re there and know what you’re going to do, you avoid -. But if things grow and you haven’t gone through the process where you brought the community in, that’s when we end up with confrontation. So, you know, I’m happy that we have the application in, that, you know, we’re proceeding along. I’m very happy they’ve met with the community, and I’m extremely happy that I haven’t had any complaints since the last time. Because you would be amazed as to how much work is generated in our office, not just in Puna but all over the island, by people who complain because the neighbors are doing things that they think are not permitted or not supposed to be occurring in residential or ag, or even sometimes in commercial areas. And so, you know, we have to investigate and we have to enforce rules and regulations. And sometimes it feels like trying to do the square peg and the round hole. The rules and regs that we have and our Zoning Codes don’t necessarily have the flexibility that people would like to have. We have a little more flexibility with special use permits in some cases with ag land. But, you know, it’s not our intent to be punitive, it’s not our intent to strangle development. It’s just basically trying to balance the needs of all sectors of the community. I like your performances. I, you know, enjoyed your many parades. But, you know, you have to balance that against the needs of neighbors. And so I think, you know, moving forward and trying to make sure that the neighbor’s concerns over noise and hours of operation are handled is the, will end up with something that’s mutually agreeable for everybody. PETRICCI: Can I respond? LEITHEAD TODD: Certainly. PETRICCI: I didn’t mean to put you on the spot. I just, it would really be a shame for this, for the community and for that whole area, for this to be lost because it’s something very special. We see in regular communities, schools and other types of developments that are put in the neighborhoods, and they’re able to do it. They’re much larger, stores, geothermal power plants, with noise, noise problems. If we can put a geothermal power plant into the middle of a community, and that’s a permitted use, I don’t, I think we should be able to put SPACE into the middle of a community as a permitted use. Thank you. AU: Okay, thank you. Any more questions for this testifier? Okay, we have one more testifier, Maura Herlihy. Please state your name and where you reside, and your three minutes can begin. 9 EXHIBIT C HERLIHY: Okay, thank you. My name is Maura Herlihy. I reside in Black Sands Beach Subdivision, Kalapana. And I’m the farmer’s market manager over at SPACE. I’m going to talk about our farmer’s market and its importance to the community. We help foster a healthy local economy because we require that all vendors sell strictly local goods. Our vendors provide an assortment of products to meet all our customer’s needs, whether it’s groceries, farm fresh produce, ready to eat meals, baked goods, yard services, home repair, nutritional guidance, license massage, cultural demonstrations, local artists, local craftsmen, self reliance practices, local community organizations, and many other businesses regularly set up at our market. We also host a swap meet on the second Saturday that helps to recycle slightly used goods within the community. And people are relying on our market as a local venue for local goods. Over the past few years, our market has grown from five vendors to over 50 vendors, 40 of which their businesses rely on our market being open weekly; and they attend every week of the year as their point of contact with the community. An additional 15 spaces fill up weekly with temporary vendors, and our second Saturday swap meet attracts a dozen or so more vendors. We have an average of 500 people who visit the farmers market each week, many of which are shopping exclusively with their food stamp benefits. The availability of the market and our EBT program makes it possible for community members to do their grocery shopping without having to take a 32-mile round trip journey to the nearest grocery store. It’s especially important to our residents that are relying on our public transportation because it only passes nearby neighborhoods twice a day, making it a day-long journey to go get your groceries. DARROW: One minute. HERLIHY: Many of our customers take pride in doing all their shopping in the local community and our market makes it possible. SPACE Market is a valuable asset to our community providing several part-time jobs and on-the-job training for young adults entering the work force. It’s a family venue where many local families come to spend the day knowing they’re in safe and healthy environment. The market also provides a healthy weekend alternative to drugs and alcohol. My statement speaks only about our farmer’s market and don’t touch upon the hundreds of people that benefit from other activities at SPACE. To see the performing arts center for education offers many community benefits. And I hope that we can work together to mitigate any community impacts and keep SPACE open. Mahalo. AU: Thank you. Any questions for the last testifier? Okay, thank you. You may be seated. Okay, that concludes the public testimony part of this application. And what we have before us is we have a continuation with the request by the applicant to dismiss the revocation proceedings. Okay, so that’s what we have, Commissioners, in front of us. Anyone willing to entertain a motion? DARROW: Mr. Chairman? AU: Yes. DARROW: If I could before we entertain a motion, just clarification in regards to how we proceed with the applicant from today’s hearing, regardless of which way we go. Currently, Special Permit No. 1122 is in effect. It allows certain uses. So those conditions are still in effect. There are certain uses 10 EXHIBIT C that are not allowed, so we just want to be clear on the record as to the fact that the applicants are still under the current permit as it stands now. And then also there is the issue of the farmer’s market. It was allowed up to this point today by the Planning Director. So if we could clarify the situation with the farmer’s market from today on. AU: Okay, to clarify what the applicant wants, what they’re asking of the Commission, can you be specific on what you want? Because right now our Director did, she had allowed you to have the farmer’s market up to this point. So aside from the farmer’s market what else is it that you would like to do? I mean because I understand you guys are in a financial hardship, you know, and you guys need funding through -. And this is probably, this was your major funding for all these years until we stopped that. So can you let me know, can you let us know what you are requesting? What kinds of uses are you requesting? Is that appropriate to ask? No? LEITHEAD TODD: I don’t think the Commission, you have an existing permit which has certain permitted uses. They can continue those permitted uses. The continuation of the farmer’s market was an administrative decision. That is not something that the Planning Commission has on its agenda. You don’t have anything on your agenda that would allow you to interimly approve other uses, cause there are no notices to the public of that. In the case of the farmer’s market we will administratively allow them to continue the use of the farmer’s market, because that is consistent with what we have done with farmer’s markets throughout the island. And part of that recognition was that once a farmer’s market has established itself in an area, although it didn’t have a permit, that in this current economy to shut down a farmer’s market has a greater impact on not just the person who has a permit, the property owner, and may be in violation but it has an impact that’s greater in the community. And it has been our position that while we work through violations and trying to get amendments to permits that we do not shut down farmer’s markets, as long as they’re abiding by certain hours, you know, and there hasn’t proved to be a huge traffic issue, in the interest of not hurting people’s livelihoods; and that’s why we’ve allowed them. So what we’re doing with SPACE and the farmer’s market, there’s, no different than what we’ve done with farmer’s markets elsewhere on the island. It’s kind of a recognition of the current bad state of the economy and the lack of resources that a lot of people have in order to get out and vend their goods. So whatever that you do, whether you decide to continue, dismiss, we still administratively allow the continuance of the farmer’s market. AU: Okay, thank you. Thank you, Director. Any questions for staff or for the applicant before we entertain a motion? Commissioner Ono? ONO: To the staff. I’m hearing two recommendations and I’m not clear on this. Are we asking for continuance, one, or a dismissal? I mean what’s on the floor? DARROW: The Planning Department is recommending that the Planning Commission continue the revocation hearing to remain in effect as we work through the special permit amendment application. And, again, the reason for that is so that if things don’t go well that we can bring it back to the Commission and move towards revocation. That’s not to say they won’t. They have been doing well up to this point. The applicant is requesting that the revocation application be dismissed. 11 EXHIBIT C ONO: So which one is the primary motion? LEITHEAD TODD: There is no motion. AU: Okay, well, I’m ready to entertain a motion. So we’ve got two things going, just like what Jeff was saying. We have the dismissal of the revocation and the continuance of the special permit. And, you know, just for discussion sake maybe we can get a motion and we can discuss it and ask questions, if you’d like to. GONZALES: Okay, I’d like to put forth a motion to continue the revocation of Special Permit No. 1122 at the call of the Planning Director. AU: And continue the special permit? GONZALES: A continuance of the revocation of the Special Permit No. 1122 at the call of the Planning Director, I guess to continue. ONO: Second. AU: Okay, discussion? Anybody, want a discussion? ISHIBASHI: Did -? AU: Commissioner Ishibashi: ISHIBASHI: If we defer or remove this revocation what happens? We can bring that back, or it’s over? LEITHEAD TODD: If you continue the particular agenda item, which is a revocation at the call of the Planning Director, then if there are additional complaints that occur, or something happens, or for some reason the special application process stalls, then I can put it back on the agenda. If you dismiss it then in the event that something were to go awry, if there were evening performances again or something occurred, then I would have to go through, again, an investigation, a notice of violation, and go through that whole process of then initiating the process and the revocation. The reason we asked for just a continuance is that it just holds it in abeyance. We anticipate that the application will probably go smoothly. The only issue right now is timing because of the possibility of having to do the traffic impact analysis report and possibly a conferring with the traffic engineers in terms of whether there has to be any mitigation. But, you know, it’s your decision, whether you go with the continuance, or whether you go with the dismissal. AU: Question for the applicant. You can go ahead first, and I’ll ask my question after. Go ahead, Mr. Hong. HONG: Under either scenario we’d be entitled to some kind of due process. So in the event, let’s say that we have a Bob Marley fest out there while the revocation is still pending, there would be a ton of complaints, as I assume there would be. The Director would bring that revocation issue back to the 12 EXHIBIT C Planning Commission’s agenda, we still, there would still be an investigation, we’d still have the opportunity to contest some of those circumstances. Under my proposal or my suggestion, it’s the same thing. We, in either scenario we don’t get a free pass. We’re still held accountable; and there still is going to be an investigation. I just thought it would be easier, just in terms of my perspective it’s cleaner as we move past this phase and start the next phase, which is the amended application. So obviously from my client’s perspective, we’re interested in, you know, maximizing our due process. Because I would hate to think that there’s somebody with bad motives out there who just for the sake of doing it is going to make a complaint which would put us right back here on a revocation. So I think there should have to be some kind of, hopefully some kind of investigation regardless of whether somebody files a complaint; and that’s why my suggestion is to dismiss the revocation, we move on to amended permit application. And, again, if we do the Bob Marley fest we’ll still be held accountable when the complaints roll in. AU: So our Director talked about a possible traffic analysis. I’m assuming it hasn’t started yet? HONG: No. And that would be part of the amended permit process. AU: Okay. So what would be the timeframe? You know, I mean it’s like we’re dragging this out. We keep coming back, we keep coming back, and continuance, continuance. You know, I like to hold everybody accountable. I wanted to hold our beloved Planning Department, you know, to a date, as well as the applicants, as well as everybody. Because everybody here is testifying, we’re here volunteering our time, you know, so I just wanted to know timeframes. I don’t like to leave things open like, okay, whenever we’re going to get done. So, like, I mean, does anybody have any comment to that? Staff, Planning Director? DARROW: Mr. Chairman, at this point, these are in a sense separated, right? We have the amendment to the special permit which is on its own track. The revocation hearing which is separate is what we’re working on today. So the amended permit will be coming to the Planning Commission. In regards to a timeframe, it’s supposed to be within 90 days of when we accept the application. But, again, because of this issue regarding the traffic report, usually, once we have that issue we ask the applicants to conduct it, they do it, and we bring it in a timely manner. In regards to the revocation hearing, the reasons why we’re asking for it to be continued isn’t because we just want to keep it going. We also have other issues in regards to the, what brought us to this place in the first place that have not been resolved; and that is the unpermitted structures. Although we haven’t had any complaints regarding activities, we still have this issue of the unpermitted structures that we need to resolve to feel comfortable to say that we’ve resolved these issues that have brought us here in the first place. LEITHEAD TODD: With deference to some of what my staff has said and kind of thinking through all of this, given the fact that that the current permit does not allow the performances, you know, and all of that, I do have a hammer. Cause I can initiate investigations, and notices of violation. And I do have a hammer on the unpermitted structures. Because if you want to process the special permit application we’re going to have to deal with that. 13 EXHIBIT C So thinking it over and listening to Mr. Hong as well as staff, I’m going to state that I don’t have an objection to dismissing this, and then we’ll just deal with the special permit application. LEE LOY: Thank you, Director. As part of the special permit amendment, there are a number of solutions that are emerging to address exactly those things; but we have to let it go through its processes, just like with the traffic report, the unpermitted structures, some of the timing elements related to the farmers market or even performances. Those things will emerge coming out of this amendment process. But one of the components we want to add to that is the community input. They have not had a chance to review this amendment yet and give their input on that. And so we want to be able to continue to massage this application that’s a win-win for the community and for the applicant, which is a lot of what the Director expressed early on, is kind of balancing a special permit along with what the community wants. AU: Okay, thank you. So right now on the table we have a motion to continue the revocation process. That’s the motion we have on the floor. So would Commissioner Gonzales like to amend his motion? GONZALES: Mr. Chairman, I’d like to withdraw my motion to continue the revocation of Special Permit No. 1122 and put forth the motion to dismiss the revocation of Special Permit No. 1122. AU: Okay, well, it’s withdrawn so there’s no second needed? LEITHEAD TODD: No, you just need to ask for the concurrence of the second to withdraw. AU: Okay, so the second, are you okay with that? ONO: No. I’m still, I still want to put the -- what you say, your songs are, I mean, there’s no song to this, but, anyway -- the foot to the fire, you know, and keep a timeline on this. So, no, I don’t agree with the primary motion to remove it. GONZALES: So the initial motion still stands then? AU: If you choose to. LEITHEAD TODD: Yeah, because there’s an objection the motion is still on the floor. AU: Okay, so that same motion is on the floor. So, Jeff? Any more discussion? GONZALES: Well, you know, with Bobby Jean kind of giving her opinion that she wouldn’t have an objection to it, I would not have an objection to putting a new motion out there. But I’m also fine with this. I mean we can come back and we can continue. Things will stay as is for now. I do not have a problem with that. AU: Okay, Madam Director. LEITHEAD TODD: And we’re in the, I don’t know whether to call it the push me/pull you, or the Catch 22. But because we have four which is the bare quorum, you know, if you don’t get four votes 14 EXHIBIT C one way or another, it gets continued anyway, because you failed to reach a majority vote. So I’m still looking for volunteers out there for boards and commissions. AU: Okay, Jeff. ISHIBASHI: I get one comment cause -. AU: Commissioner Ishibashi. ISHIBASHI: I’m okay with revoking the revocation. But the problem we get now, we were trying to hold you guys to the fire and make sure you guys follow through. That was the message. And you guys accepted that clearly; and by your actions, you know, we thank you for that. But, yeah, we’re in a Catch 22 right now, cause either way we vote we’ll continue this thing. Thank you. AU: Yeah, you know, I’d like to add to that. You know, when you guys came in front of us in May, it was a mess - buildings everywhere, unpermitted, doing whatever you guys want there, basically. And, you know, these violations occurred. And what Madam Director said earlier is they need to do what they have to do when people complain. You know, if all this was taken care of in the beginning, if we went through the normal, you know, you contacted your neighbors first and then told your neighbors this is what you want to do, then, you know, that’s the correct process. So, you know, that’s why we wanted to hold you guys to the fire and make sure you guys are complying; and you guys have been, which is great. Whether or not we take away this revocation process, you guys are doing it anyway, so you guys shouldn’t be worried about anybody complaining. That’s all I have to say. DARROW: Thank you, Mr. Chairman. The motion before us is to continue the revocation hearing. We’ll keep it open-ended. And with that I’ll take the motion -. Commissioner Gonzales? GONZALES: Aye. DARROW: Commissioner Ono? ONO: Aye. DARROW: Commissioner Ishibashi? ISHIBASHI: No. DARROW: And Mr. Chairman? AU: Aye. DARROW: Motion does not pass three to one. AU: Okay, you’ll be notified in writing. So what will be the notification in writing is that it’s going to be continued, the revocation process is continued. 15 EXHIBIT C ARAI: The way I understand it, since the motion failed this matter could be scheduled for your next meeting in January in which, hopefully, you’ll have the bodies. But the one question I may have is that whenever the Commission takes action to continue a hearing the burden of notification of surrounding property owners falls upon the Planning Department. So that’s about the only obligation that I see. LEITHEAD TODD: The way I interpret this is we had a motion to continue at the call of the Director, which motion failed. But I don’t know that I have to put this on the next agenda, given the fact that there are other things that we’re not even getting to -. You know, we’re still going to have I think Connections on the next agenda and we’re still going to have geothermal on the agenda. So I would be disinclined to put this on the agenda any time in the near future because the intent was to put it on the th December 6 agenda specifically to find out what had happened and, you know, whether they’d be compliance. There has been compliance with the request of the Planning Commission to apply for a special use permit. So I’ll most likely to try and put this on the agenda at the same time that the special permit comes forward so that we can deal with it all at one time. Cause I see no sense in having people come for another meeting to have another motion to continue. So I think I’m going to exercise some discretion over the agenda as long as there’s no objection from Commissioners on me putting it forward to some future date. LEE LOY: The applicant has no objections to that either. And to help facilitate the Planning Department we would be more than happy to prepare the mailing, the labels, and provide that to them so that they can continue whatever necessary notification process is required. AU: Is the Commission okay with that? ONO: No, I’m sorry. I’m confused as to what’s going on here. LEITHEAD TODD: This is going to be continued to some future agenda. But I’m going to exercise some discretion unless I hear objections from Commissioners as to when I put it on. Cause I see no reason to have it on next month’s agenda and put everybody through an unnecessary process of putting it on the agenda to ask for a vote to continue. So I’m just going to hold it off until we actually have the current special use application so that it all, so everybody can come just at one time. ONO: Thank you. AU: All right. Commissioners, okay? COMMISSIONERS: Okay. AU: So you’ll be notified in writing, and so will all the neighbors, right away. Right, Planning Department? LEITHEAD TODD: When it’s on the agenda. AU: When it’s on the agenda. The discussion ended at 12:34 p.m. 16 EXHIBIT C Respectfully submitted, Sharon M. Nomura, Secretary Windward Planning Commission 17 EXHIBIT C