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HomeMy WebLinkAbout2013-02-07 Windward Transcript Glover PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT FEBRUARY 7, 2013 JAS W. GLOVER, LTD. (SPP 12-145) A regularly advertised hearing on the application of was called to order at 9:10 a.m. in the County of Hawai‘i, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with Chairman Dean Au presiding. COMMISSIONERS PRESENT: Dean Au, Ronald Gonzales, Wallace Ishibashi, Raylene Moses and Stephen Ono STAFF PRESENT: Ivan Torigoe (Deputy Corporation Counsel), B. J. Leithead Todd (Planning Director), Daryn Arai (Planning Program Manager), Maija Cottle (Staff Planner), Jeff Darrow (Staff Planner), and Sharon Nomura (Secretary) Approximately 24 people from the public were in attendance. APPLICANT: JAS W. GLOVER, LTD. (SPP 12-145) Application for a Special Permit to allow the establishment of a new quarry site on approximately 10.15 acres within a 140.368-acre property situated within the State Land Use Agricultural District. The project site is located east of the Hawaii National Guard Site and Hilo International Airport and approximately 3,800 feet west of the County's Sewer Treatment Plant Site at Honohono-nui, South Hilo, Hawaii, TMK: 2-1-13:Portion of 4. AU: So for the first agenda item, we’re going to go right into applicant Jas W. Glover, Special Permit 12- 145; and we’re going to start off with staff presentation. Thank you, Jeff. DARROW: Thank you, Mr. Chairman. Good morning, Members of the Planning Commission, welcome. COMMISSIONERS: Good morning. DARROW: If I can direct your attention to our presentation. Our first applicant this morning is Jas W. Glover, Ltd. They’re requesting a special permit. The location of this subject application is within the South Hilo District of Hawai‘i. More specifically, we’re looking in the general area of the Hilo Airport. The subject property is identified with a black outline, just southeast of the Hilo Airport area. Access to this area is from Volcano Highway, which is Highway 11, which is located on the left side of your map running in a north/south direction. You would come onto Leilani Street. This is near the area of the Glover operation’s base. And you would come in on Rubbish Dump Road, and then there’s an access easement roadway from the State that accesses the subject property. The different colors in the area represent zoning, and we’ll zoom in a little bit to identify those. This is the County’s zoning map of the area. The lighter green is zoned Agricultural 5-acres including the 1 EXHIBIT A subject property. Lower, you see a darker green color, that is identified as Agricultural 20-acres. And then the darker gray is Limited Industrial, which consists of the airport area. This is the State Land Use Boundary Map. There are two colors. The light green represents Agriculture. The pink shaded areas represent Urban zoning. And the General Plan Designation map, the darker gray shaded area is Industrial. And then we have some green, as well as white. Those represent, the green representing Important Agricultural lands and the white representing Extensive Agriculture. The subject property is split with Industrial, as well as Important Ag, and Extensive Ag. The area that we’re looking at this morning is more on the lower portion of the property. This is an aerial photo referencing some of the previous special permits on the property. Again, you’ll see the access road coming in on the bottom portion of the map. The special permits that have been previously permitted on this property were permitted from 1996 to 2003. We had had originally Special Permit 936 for approximately 14, just shy of 15 acres. The second permit was in 1008, this was again for just shy of 15 acres for quarry operations. This was to applicant Glover who is currently applying. The lower one that we talked about was for Yamada and Sons. Next was Special Permit 1107; again, that was for Yamada and Sons. And then lastly we had a special permit for Glover. All four of these were just shy of 15 acres. The current request is identified as “Project Site” and this is 10.15 acres. The applicant is requesting a Special Permit to allow the establishment of a new quarry site on approximately 10.15 acres within a 140.368-acre property situated within the State Land Use Agricultural District. The material to be quarried is aggregate and rock for commercial applications. The material to be quarried consists largely of basaltic "blue rock" with very little cinder. Approximately 800,000 cubic yards will be removed and either processed on site or transported to Glover's Hilo operations site on Leilani Street. Property information: The 140-acre property is owned by the Kamehameha Schools. A quarry license was granted to the applicant on January 15, 2012 for a 49.9982-acre quarry site for a period of 15 years. This permit request affects a 10.15-acre portion of the 49.9982-acre quarry license site within the 140.368-acre property. There have been four special permits approved by the Planning Commission for quarrying operations on the subject property. This is the fifth special permit request for a quarry on the 140-acre property. The current requested special permit would add an additional 10 acres for a total of approximately 70 acres of quarrying operation that would be approved on the subject property, which is approximately half of the 140-acre subject property. This is the applicant’s site plan that was submitted. The applicant, it appears that this could be for a possible subdivision application, but it, what it does is it separates the property into Parcel A and Parcel B. It looks like there’s a remnant portion up on the top of approximately 10 acres as well. So the portion that we’re looking at again is identified on the right lower portion of the map, the project site area within the 49-acre leased site. This is another site plan submitted by the applicant. Again, it shows the previous two permits within the leased area that were approved, and the project site area, and access on the lower portion of the 2 EXHIBIT A map. And an aerial photo submitted by the applicant, again, identifying the two permit areas, as well as the project site. The Planning Director’s recommendation has been passed out to the Planning Commission. The applicant’s representative has submitted a request for a continuance. And this has been passed on to th the Planning Commission. It’s dated, it was received yesterday, February 6. And so with that, that concludes our presentation. Are there any questions? AU: I have a question. So this was issued yesterday, the -? DARROW: It was submitted by the applicant’s representative yesterday. AU: Okay. Okay, thank you. Any more questions for staff? ISHIBASHI: Brother Chair? AU: Commissioner -? ISHIBASHI: Who’s the owner of the 1107? DARROW: The 1107 would, was approved to Yamada and Sons. So both these permits were originally approved to Yamada and Sons. But if, I mean, maybe the applicant’s representative can verify it. But currently the applicant now has been granted a lease for this particular 49-acre property. So I would assume that they would have control over these two areas, currently. AU: So the applicant’s representatives are here, as well as Kamehameha School’s representatives? DARROW: I don’t believe Kamehameha School’s representatives are here. AU: Okay. Any more questions for staff? DARROW: Thank you. AU: Okay, can I please have the applicant come forward. And a reminder to anybody who wants to testify, right now we have nobody signed up to testify, and if you are interested you have three minutes. But the applicant, go ahead; and we’ll give you not more than 15 minutes. VITOUSEK: Good morning. I’m Randy Vitousek. I’m the attorney for Jas Glover; and with me representing Jas Glover are Mike Pearing and Byron Fujimoto who are with Jas Glover. AU: Okay, excuse me. Can I swear you in. VITOUSEK: Oh, I’m sorry. AU: Can you raise your right hand. Do you swear and affirm to tell the truth on this matter now before the Hawai‘i County Planning Commission? 3 EXHIBIT A VITOUSEK: Yes. AU: Okay, thank you. VITOUSEK: Okay, so I’m not a high tech guy, and so if it’s okay, I’m going to refer to the aerial photo to sort of orient what -. You know, the reason that we’re here is because the County Planning Director has recommended approval of a number of a special permits and the Planning Commission has granted numerous special permits of less than 15 acres. In fact, in this area, as you see -. NOMURA: Microphone, please. VITOUSEK: And so, so there’s -. This is the project site. It’s 10 acres, as we stated, not 14.9 acres. It’s 10 acres because it’s the balance of this lower leased area from Kamehameha Schools. And so the County had previously granted special permits of 14.9 acres here, here, here, here, here, here, here and here. And I don’t know if the County has a permit for its own quarrying operation there. But basically the approach of allowing quarrying applications based on special permits for less than 15 acres has been carried on with the County of Hawai‘i for a long time. And so now that Glover has applied for a 10-acre site, that the Planning Department is taking the position of recommending denial of it saying that it should go to the Land Use Commission. And what they submitted to support that was a letter th from the Land Use Commission dated Monday, okay, dated February 4. Because they had sent in a request to comment to the Land Use Commission and Land Use Commission hadn’t commented. And so at the last minute before this hearing they called the Land Use Commission and then asked them if they wanted to comment; and so the Land Use Commission commented on Monday. On Tuesday, the Planning Department issued its recommendation of denial based on a letter that it got Monday; and so that’s why I filed a request for a contested case hearing yesterday. Because you have to understand that this is a radical departure from the previous way that the County has been handling special permits for a quarrying operations in Hilo and other places for the last 20 years. And so we need, and on behalf of Glover, to evaluate why it is that this application is being singled out for a different treatment; and that’s why we requested a contested case hearing. And that’s why we’re requesting a continuance from the Commission so we can meet with the Planning Department, they’ve agreed to meet with us, and see if we can’t find out what’s going on where and why this is such a change from the previous position. You understand what they’re saying is the reason for the change is that they’re deferring to the Land Use Commission. But understand that the Planning Department of the County of Hawai‘i has not deferred to the Land Use Commission in the past. In other words, we have several special permits for 14.999 acres. Whereas, if it’s less than 15 acres the Commission can decide; if it’s more than 15 acres, it has to go to the Land Use Commission. So the very fact that we have all these special permits for 14.999 acre areas show that, you know, they have not had a policy in the past of deferring to the Land Use Commission. So we need, you know, we need time to try to work on this. We need time to try to explore why it is that this one is being treated differently because it really matters, you know. As the, in January of 2011 the Windward Planning Commission granted a 14.999-acre special permit to Yamada and Sons, right here. And so when you’re in business and when you have competitors and when they’re able to get special permits like other people have in the past and then when you apply for 4 EXHIBIT A 10-acre you’re told it has to go to the Land Use Commission, it is important to figure out what’s going on and why. And so that’s why we want time to do that. What’s before you today is our request to continue the hearing, giving us an opportunity to talk more with the Planning Department, and talk with the Land Use Commission. Hopefully we won’t come back to you. Well, we have to come back no matter what. But hopefully we won’t come back with a contested proceeding. AU: Okay. Do any Commissioners have any questions for the applicant? ONO: I -. AU: Commissioner Ono. ONO: Please. Glover was given special permit for 1107, am I correct in that? VITOUSEK: No, 1107, no, that permit was issued to Yamada. ONO: Oh, that was -. So what about 936? VITOUSEK: Nine thirty six was issued to Yamada. ONO: Oh, okay. Thank you. VITOUSEK: And, Mr. Ono, what happened was Kamehameha Schools had divided that parcel into two licensed areas, that the upper part was licensed to Glover, and Glover got special permit 1221 and 1008. I think in this one they got 1008 and that turned out not to have the right type of aggregate. And so, then when the Yamada license ended on the makai part or lower part there, Glover bid on it and got that. And so that’s why Yamada had to go to another site and get the 14.999. And then what Glover is applying for, which is apparent, it’s not an accurate map by the way, the project site is smaller than is shown on that map. But that’s, so what Glover is applying for is a license to quarry the remainder of that 49-acre parcel, which is only 10 acres. And so, you know, rather than being a 14.999 acre, which looks like it’s just trying to avoid going to the Land Use Commission, this is actually, you know, a 10- acre one that is the balance of the unquarried part of the 49 acres. AU: Any more questions for the applicant? And keep in mind, Commissioners, if we do have questions, let’s stay within what’s on the table. And what’s on the table is the applicant is requesting for a continuance. So we don’t really want to get into other discussion at this point. But if you have questions regarding the application, you know, that’s appropriate. So with that said, any more questions for the applicant? VITOUSEK: Thank you very much. AU: Okay. You know, I’d like to give staff and the Director a chance to comment prior to moving on. I'm going to have to swear you guys in first. Can you please raise your right hand? Do you swear and affirm to tell to truth on this matter before the Hawai‘i County Planning Commission? BRILHANTE: Yes. 5 EXHIBIT A LEITHEAD TODD: I do. AU: Okay, please state your name and where you reside. LEITHEAD TODD: Bobby Jean Leithead Todd, Planning Director, Hilo. BRILHANTE: Good morning, Commissioners, William Brilhante, Deputy Corporation Counsel, on behalf of Ms. Bobby Jean Leithead Todd, Director, Hawai‘i County Planning Department. LEITHEAD TODD: I think what has been left out in some of this conversation is the fact that over the years on several occasions the Land Use Commission has expressed their concern over what they view as parceling out of applications to avoid having to go to the Land Use Commission. And in this case what you have is not necessarily the applicant but you have the property owner who is successively giving these, you know, licenses or permits out on a larger parcel, and then not master planning the property, which is what the Land Use Commission would like to see. In Kona, we had a parcel that was a 60-acre parcel that was subdivided into four slightly less than 15-acre parcels. Now those we went ahead and did the rezoning applications on. But we had letters from the Land Use Commission expressing their concern that the combination of subdivision of the land and then subsequent individual applications within a close proximity of time in a matter of a few years looked like it was trying to avoid going to the Land Use Commission, and that they have stated that, you know, we need to look more closely at applications. And this precedes this application. We have another application in another part of the island where there were two different applications that were previously approved. When we looked at ongoing operations there, we basically told the operators that because the two separate permits looked like they were utilizing the same 120 acres for some of their joint activities that they should apply. And on our urging they are, in fact, applying to go to the Land Use Commission to incorporate the larger parcel. So this is part of a pattern of our trying to pay more attention to the concerns of the Land Use Commission. And there have been, you know, phone calls, and emails over the years, and in letters that they’ve submitted. And they’ve also brought this up when, you know, we’ve met with them in Honolulu to discuss -. They’ve ask staff for land use, and for the Office of Planning -. In this particular case, the applicant came to us before submitting an application and we urged them to go to the Land Use Commission because of our concerns. So this was not a surprise to them. The denial should not have been a surprise. Cause we, in fact, told them when they met us before submitting an application that we believe that this should go to the Land Use Commission. Instead, they decided to submit an application for a special use permit. We had raised these concerns. We, because of the prior, you know, concerns we had from the Land Use Commission, staff decided that they needed to call and make sure that we weren’t going to, you know, have a problem with the Land Use Commission; and they sent their written, you know, confirmation that they had some issues. So as a result of that we came with the recommendation that this be a denial. So this is not a surprise to the applicant. This was one of the things that they knew could happen when they came to us. 6 EXHIBIT A AU: So in the past applications, Yamada and Glover, you know, if I give reference number to all the different special permits, not once has the landowner, Kamehameha Schools, ever come up in front of us? It was always the lessee? LEITHEAD TODD: Yes. And the concern is that this is a single property owner and it’s part of a 140-acre parcel, and that what you have is a pattern over a period of years of successive permits. And I have a lot of compassion for the applicant because they’re not necessarily in control over what happens, they just get a lease for a particular parcel. But what you have is an on-going pattern that in this larger parcel Kamehameha Schools has said, hey, we’re going to do quarrying, but they’re never coming in and planning the whole thing out. And what’s the impact to the, you know, other properties? So that’s part of the concern. If these were separate parcels and separate owners, I think there would still be some concern about master planning. But they would be separate parcels and separate owners. I know in the applicant’s eyes they view this as being separate because they have a separate license. But my understanding is at this point they have the whole 49 and that they may, in fact, have a potential for getting the 140. So, you know, we are basically implementing in our recommendation the concerns that have been raised by the Land Use Commission of trying to circumvent the intent of the State law which is that activities that require a special use permit if it’s going to encompass more than 15 acres should go to the Land Use Commission. I think we looked at, you know, what if we did something like recommend approval of the 10 acres to the Land Use Commission, treat it as if it’s an application. And technically that wouldn’t work because you wouldn’t have information going to the Land Use Commission about the larger parcel, so they wouldn’t have the information they needed. So basically when we looked at this in order to accomplish the goal of addressing the concerns that we felt the denial was the appropriate recommendation. And I do have a question, I guess, cause I’m -. Contested cases are typically asked for like intervenors, and not by an applicant. It’s a contested case when someone is contesting the application. It’s kind of unusual, I guess, and I think Corporation Counsel perhaps, and perhaps Mr. Torigoe, may have to take a look at the issue of whether an applicant has a right to have a contested case or whether if they feel they need more time to prepare, that they instead just need a continuance in order to put witnesses and exhibits together. AU: Yes, Fellow Commissioners, you know, usually on a contested case we have somebody else contesting the application, not the applicant. In this case, just to reiterate what our Director is saying is that we have the applicant requesting a contested case on their own application. So, yeah, it is unusual. And, you know, Corporation Counsel Ivan, if you want to comment on that before I move forward? TORIGOE: Thank you, Mr. Chair. Real generally, you know, Contested Case Rule 4 says that the rule “is to be followed” in all cases, this is Rule 4-1, “in all cases where State statutes provide for direct appeal from the Commission to Circuit Court.” And that is the case in this kind of an application where if there’s a denial then that can appealed directly to the Circuit Court under HRS 205-6. So, you know, technically Rule 4 ought to apply to the extent that the parties want it to be. And Contested Case Procedures can be modified by agreement of the parties and by stipulation, and whereby waiver. And then also under your Rule 4-6, “In all proceedings where the Commission's action is directly appealable to Circuit Court,” like now, “the applicant and the Planning Director will be designated parties to the action.” So I think when you look at the definition of what a contested case is under the State Law, basically it is that agency hearing is required by law when somebody’s rights are being 7 EXHIBIT A adjudicated and when that’s the last one before you go to court. So, you know, technically I think we have to treat this generally as a contested case. And then exactly how that plays out, again, can be modified by agreement of the parties. AU: Thank you, Ivan. Any more questions for the County from my Fellow Commissioners? Okay, thank you. Oh, excuse me, is there any objections to the continuance by the applicant? LEITHEAD TODD: I have no objection to the continuance. And if the interpretation of the rules of the contested case is the appropriate vehicle, I have no objection to that. It was just that I wanted some clarification on the rules. BRILHANTE: And I think what the County’s position is going to be is that we have no objection to the continuance or the granting of the continuance as it relates to the application, the continuation of the application. However, the County is going to request that it reserve its right at the time, if the continuance is granted, to revisit the issue as to whether or not a contested case hearing is the appropriate course of action. So, yes, to the continuance, but we’re requesting that we reserve the right to address the issue of whether or not a contested case hearing is the proper vehicle. AU: Okay, thank you. Okay, Fellow Commissioners, so right now on the table we have a request for a continuance. So can I get a motion, ready to entertain one? TORIGOE: May I -? AU: Yes, go ahead, Ivan. TORIGOE: Thank you. If the continuance is granted, there are a couple of issues. One is how long; and the other one is at what point do you determine whether the Commission is going to hear the contested case or if you’re going to farm it out to a hearings officer? So my understanding after talking with your counsel is that, it seems that, you know, you want to have some kind of initial deadline, perhaps to continue it a month so that there is a deadline, you know, that they can work against. And then at that time they can come and share what progress has been made and, if necessary, you know, make final arrangements for whatever contested case procedures seem appropriate; and you guys can make that decision as to whether you are going to hear it yourselves or get a hearings officer. You may ask counsel if there is any agreement upon those proceedings. AU: If the applicant can come forward, as well as counsel. And, you know, maybe if we can just kind of look at a timeframe and see what the parties can agree upon before we make a motion. VITOUSEK: Yes, thank you, Mr. Chairman. On behalf of the applicant, you know, we have no objection to, you know, deferring the Commission's decision on whether or not to grant a contested case. That is really fine with us one way or the other. We are very confident that, you know, we will eventually be entitled to one. But what I'd like, what I'm asking for or on behalf of the applicant is just some time for us to try to sit down with the Planning Director and Planning Department to see if we can’t work it out. So, in my personal experience over the years people work better on short deadlines than long deadlines. In other words if we have a date that we are facing it is easier to get people to devote time to it. So we’d ask for a month's continuance; and we don't have any objection to deferring the question of whether we are entitled to a contested case to the next hearing. BRILHANTE: And the County is in agreement with that as well. We have no objection to deferring this matter as to whether or not a contested case hearing should proceed to a 30-day period of time. And we do look forward to having, you know, on-going discussion with the applicant, hopefully in a, 8 EXHIBIT A you know, real civil attempt to resolve this matter. And hopefully when we come back in 30 days the question on whether or not a contested case hearing is a necessity would be moot. AU: Okay, thank you. Okay, Fellow Commissioners, ready to entertain a motion? DAROW: Mr. Chairman? AU: Staff, Mr. Darrow. DARROW: Just for your information, the next Windward Planning Commission meeting is scheduled for March 7, 2013. AU: Okay. Commissioner -? ISHIBASHI: Mr. Chairman, I’ll make motion in regards to Jas Glover’s Special Permit Application No. 12-145. I move that we sustain the continuance of the, this hearing until March 7, 2013. AU: Thank you, Commissioner Ishibashi. Any second? MOSES: Second. AU: Thank you, Commissioner Moses. Yeah, I think we should go ahead and let the applicant and the County hash it out. Hopefully they can come to some kind of an agreement before they come to us on th the 7. Let’s open it up for a discussion. No discussion? Mr. Darrow. DARROW: Thank you, Mr. Chairman. The motion before us is to continue this matter until March 7, 2013 Windward Planning Commission meeting. With that I’ll take the roll. Commissioner Ishibashi? ISHIBASHI: Aye. DARROW: Commissioner Moses? MOSES: Aye. DARROW: Commissioner Gonzales? GONZALES: Aye. DARROW: Commissioner Ono? ONO: Aye. DARROW: And Mr. Chairman? AU: Aye. 9 EXHIBIT A DARROW: The motion passes five to zero. AU: Okay, thank you. You’ll be notified in writing. VITOUSEK: Thank you. The discussion ended at 9:41 a.m. Respectfully submitted, Sharon M. Nomura, Secretary Windward Planning Commission 10 EXHIBIT A