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HomeMy WebLinkAbout2014-01-09 Windward Exh A - Item 1 HACA WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JANUARY 9, 2014 HAWAIIAN ACRES COMMUNITY A regularly advertised hearing on the application of ASSOCIATION (SPP 845) was called to order at 9:11 a.m. in the County of Hawai‘i, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with Vice Chairman Ronald Gonzales presiding. COMMISSIONERS PRESENT: Ronald Gonzales, Charles Heaukulani, Gregory Henkel, Myles Miyasato and Raylene Moses ABSENT AND EXCUSED: Wallace Ishibashi and Stephen Ono ALSO PRESENT: Margaret Masunaga (Deputy Corporation Counsel), Duane Kanuha (Planning Director), Daryn Arai (Planning Program Manager), Phyllis Fujimoto (Planner), Jeff Darrow (Planner), Maija Cottle (Planner), Sarah Hata-Finley (Commission Secretary) and Noriko Sauer (Commission Secretary) And approximately 25 people from the public in attendance. APPLICANT: HAWAIIAN ACRES COMMUNITY ASSOCIATION (SPP 845) Amendment to Special Permit No. 845 to allow additional uses within the community center, including a farmers market, and a one-year time extension to comply with Condition No. 4 (construction timeline of the community center and volunteer fire station). Special Permit No. 845 was originally approved to allow the establishment of a volunteer fire station, community center and related improvements situated on three (3) acres of land within the State Land Use Agricultural District. The property is located at the northeast corner of the intersection of Road 8 and Road C within the Hawaiian Acres Subdivision, Kea‘au, Puna, Hawai‘i, TMK: 1-6-052:002. GONZALES: All right. Let’s get right into this. We’d like to start with Item No. 1, Hawaiian Acres Community Association, amendment to Special Permit No. 845. I’d like to ask the staff for their presentation, please. DARROW: Thank you, Mr. Chairman. Good morning, Members of the Planning Commission. Happy New Year. This is our first meeting of 2014. And we get to start off with Hawaiian Acres Community Association. They are requesting an amendment to their Special Permit 845, which was originally approved on July 15, 1993, for a volunteer fire station, a community center and related improvements on three acres of land. If I can direct your attention to our location map, the area of our first application is within the Puna District of Hawai‘i. More specifically, we are looking in the Hawaiian Acres Subdivision. For reference, this particular black road running in a, black line running in a north, northeast-southwest direction is Volcano Highway, Highway 11. The subject application is identified with a dark black outline. And if you’ll notice, it’s within the area that’s shaded in light blue, which represents the zoning for the area, which is mainly Agricultural 3-acres. The other colors also represent different types of zoning; the green and the blue mainly represent Agricultural zoning, the lighter yellow 1 EXHIBIT A represents Residential zoning. As we zoom in, you’ll see the subject property identified with a black outline. Just for reference, we have Road 8, they call that Moho Road, as well as Road C, and the subject property is located on the northeast corner of the intersection of Road 8 and Road C. Access to the property actually is from Road C, not from Road 8. This is the General Plan Land Use Pattern Allocation Guide Map for the County; this represents that the property is within the Extensive Agricultural General Plan designation. The lighter green is Important Agricultural Lands. This is an aerial photo. Again, we have Road 8 on the left side of the map and Road C running on the lower portion with the subject property identified with a red outline. Just for reference, you’ll notice the different structures on the property; the white roof represents the existing community center, the yellow roof represents the volunteer fire station, and they do have a catchment tank on the property. The area that we’ll be discussing for the farmers market area is this cleared area here. As you will also notice, there is additional land area on the property that’s uncleared at this time. The applicant is requesting an amendment to Special Permit No. 845 to allow additional uses within the community center. The applicant was, they were receiving a request to be able to utilize the community center for other types of purposes. These include exercise and fitness programs and structural classes and fundraising events. So at this point the applicant wanted to allow those particular uses within the structure and to offer this to their association. Additionally, they are requesting a farmers market to be held one day a week for approximately four to six hours. And lastly, a one-year time extension to comply with Condition No. 4. Condition No. 4 requires that the applicant complete construction of the volunteer fire station, community association building and related improvements. Currently, the applicant has completed construction, but there are some issues. One of them is that they need a change of use permit for the community center, which was originally approved as a dwelling. So it needs to be changed regarding the use to a community center. Additionally, the volunteer fire station is constructed, but they need to final the permit. There is an issue or two with that, and they should be able to resolve it pretty quickly. This is the applicant’s site plan that was submitted. For reference, we have Road 8 on the left side of the map, and Road C. Again, access to the property is from Road C. This is where the community center is identified, the volunteer fire station, as well as the catchment tank. And again, we had spoken about the cleared area for the farmers market and the area that is unutilized at this time. The light shaded areas represent the different areas on the property available for parking. The applicant has brought in a zoomed-in area of the farmers market area. Again, you’ll see Road C for reference. This would be access. And they have an area that would be set aside for people to utilize their vehicles, such as a tailgate, for vendors, as well as some tents that will be utilized for vendors. These are some site photos. For reference, we are looking towards the entrance of Hawaiian Acres on Road 8. Road C is to your right and the property, the subject property, is on the northeast corner. This is on Road C, looking back towards Road 8; Road 8 is over here. I wanted to let you see that there is a portion of the road that has been paved, and it looks like it’s actually just one side of the roadway. Just for reference, the subject property is on the right side; you can see the community center, as well as some parking areas there. This is looking towards Hilo on Road C, the catchment tank, as well as the area utilized for the farmers market. This is a closer-up of the area for the farmers market; it’s just basically a cleared area with gravel. Again, the community center and the parking area, this is the volunteer fire station and this is the asphalt paved parking area. 2 EXHIBIT A I wanted to bring to your attention some conditions that are unique to this particular application. As you recall, we’ve been kind of working with farmers markets lately. And so at our last hearing we had tried to address some of those issues with the farmers market in Ocean View. We tried to implement some of those conditions within this application. For reference, we have Condition 4, Condition 5 and Condition 6 relative to the parking. What we are asking for is that all parking be on site. Some of the issues that have come up in the past is that people were parking on Road C and Road 8. So that will be a condition of the permit. Additionally, we are asking for them to provide a parking attendant to be able to direct people to these parking areas, and lastly that they put signage on the property. Again, Condition 3, this is in reference to finalizing all building permits. So we have allowed for a period of one year. Because this is an amendment, they will not be allowed an administrative time extension; if they don’t meet that time frame, they have to come back to the Commission. And then lastly Condition 8, it limits the vendors for the farmers market to be capped at 20, and this was a number that was actually suggested by the applicant. I’m sorry, I wanted to, also just for reference, because there has been some issues in the past with this and there are some concerns, we put in Condition 11. And regardless if the condition is in or out, people still have the right to file a complaint and we would investigate. But this makes it clear that if these conditions aren’t substantially complied with, somebody could file a complaint, and we would investigate, and if it’s found that it’s upheld, we would bring it back to the Commission for action. The Planning Director is recommending that the Planning Commission approve this amendment request. Before we conclude, I wanted to bring to your attention that we have received three late transmittals. One is from the Hawaiian Acres Community Association a letter of support. No. 2 is a letter from – let me just pull that out real fast – from Diana Miller, and this was dated December 20, and it was a letter in response to the comments from the Police Department, addressing those issues. The Planning Department is also taking time to address the concerns of the Police Department, and this begins on Page 2 of the Recommendation on the last paragraph and it goes on to Page 3. And again, some of those conditions that were added were in direct response to those concerns. And then lastly, this morning we have received a letter from John Lehnert who is representing the Association. And this is? Okay. And then it’s just been brought to my attention that we have a memorandum in support of petition for standing in a contested case, which has been submitted to the Commission by Jamae Kawauchi, and this is going to be circulated. Lastly, as you’ll notice in the Background Report, the Planning Commission has received a petition for standing in a contested case from Susann Tita. Just for reference, so you understand where she is located, again, we have Road 8 on the left side of the map, Road C with the subject property on the corner, Ms. Tita lives on Road 10 off of Road C, so she would be traveling past this particular area for access to her property. With that, that concludes our presentation. Are there any questions? GONZALES: Commissioners, any questions for staff? DARROW: Thank you. GONZALES: Thank you. At this time we’d like to bring the applicant forward. Good morning. Okay. And I’d still like to call the Planning Director up at this time also. KANUHA: Mr. Brilhante will be representing the office on this matter. 3 EXHIBIT A GONZALES: Thank you. Could we have Ms. Tita come up also with her attorney. May I please have everybody raise your right hands so I can swear you in. Do you swear to tell the truth to the Windward Planning Commission today? PARTIES: Yes. GONZALES: Thank you. I believe we are going to start with the applicant. Sir, go ahead. LEHNERT: Good morning, everyone. My name is John Lehnert. DARROW: John, please use the microphone. LEHNERT: Hold it? DARROW: Yeah, they are recording. LEHNERT: Good morning, everyone. I’m John Lehnert. COMMISSIONERS: Good morning. LEHNERT: I understand you have a written statement by me in front of you? Everybody? Just for everyone else in the room, I’m a Hawaiian Acres Community Association member for 33 years and Hawaiian Acres’ secretary for nine years. And I had been supervising the farmers market for six years before we found out that it was not legal. I’m not sure what else to say unless you have more questions pertaining to my statement. Or would you like to guide me? GONZALES: Any questions from the Commissioners for the applicant? No? Okay. I’d like to ask Mr. Brilhante to go ahead, tell us what he needs to. BRILHANTE: Good morning, Commissioners, Chair Gonzales. William Brilhante, Deputy Corporation Counsel, appearing on behalf of the Planning Director. I think the submittal by the Planning Director regarding the Planning Director’s recommendations are on point, and that’s the position that the Planning Director is going to take. There is some concerns that were raised by the Hawai‘i County Police Department regarding potential traffic issues as it relates to the farmers market, which is, they request us to have a farmers market one day a week from four to six-hour period. And I think those recommendations were adequately addressed by the Community Association in which they are going to limit the vendors to 20 vendors, they are going to mandate, and very similar to the issue that we had with the farmers market down in HOVE, but in this case it seems like the Community Association is very, very willing and able and amenable to assisting with the traffic situation, the potential traffic situation where they are going to have actual association members directing traffic to specific off-road parking areas and limit the number of vendors. And, you know, like Mr. Lehnert has provided testimony to the fact that this farmers market has been in operation for about six years, so I would assume that the Association has a general idea, or a reasonable idea, as to the number of participants and the number of customers and members from the public that go in and frequent the farmers market; so therefore, I think they have a fairly good handle as to what the requirements will be in order to make sure that the road and access and congestion issues are all taken care of in an appropriate and timely fashion. And so therefore, based 4 EXHIBIT A on those, based on the conditions set forth under the Planning Director’s recommendation, we request that this Special Permit be approved. GONZALES: Any questions from the Commissioners? HEAUKULANI: I have a question. Good morning again, Bill. And I’m sorry, I should have asked this of the staff. But I see that in response to the Police Department’s concerns there were some added conditions of approval: on-site parking, signage, parking attendant. Were those added conditions communicated to the Police Department and did we hear back from them? BRILHANTE: I’m going to have to defer to Mr. Darrow. HEAUKULANI: Yeah, I’m sorry, I should have asked you. I didn’t pick up on it until after. DARROW: Thank you, Commissioner Heaukulani. We had asked the president, Diana Miller, if she would address those concerns. We have not provided the Police Department with our recommendation. I did personally speak with Captain Jelsma and let him know the situation, and I think he felt that he was more comfortable with it. I did ask Ms. Miller if she could get a follow-up response from the Police Department. My understanding is that they had mentioned that they would try to get one out, but it doesn’t appear that we have received one by today. There is a letter from her, again, that was sent directly to the Police Department in response. HEAUKULANI: Thank you. DARROW: Thank you. GONZALES: Any other questions from the Commissioners? Thank you, Mr. Brilhante. Susann? KAWAUCHI: My name is Jamae Kawauchi. I’m an attorney for Ms. Tita. I’ll be speaking on her behalf. BRILHANTE: Excuse me, Commissioners, before we go forward. I’m going to object to the representation by Ms. Kawauchi at this time, and the reason for that is the Hawai‘i County Code, which is codified in the Code of Ethics, specifically prohibits former County employees from representing a party in front of a County board or commission within a twelve-month period of time from the date that they left service with the County. It’s my understanding that Ms. Kawauchi previously served as the County Clerk, and subsequent to that she served as a prosecutor with the County of Hawai‘i, and it has been only in approximation of about six months of time in which Ms. Kawauchi has terminated her services of employment with the County. And the reason I’m bringing this up is what I requested yesterday from Ms. Kawauchi, and unfortunately I didn’t get her response, is, you know, this issue came up regarding the post-employment requirements, and I expressed to Ms. Kawauchi and I requested that she obtain an informal decision from the County Board of Ethics regarding her availability to appear in such a short period of time in front of this Commission. And unfortunately, I didn’t get a response from Ms. Kawauchi. And the reason that I’m bringing it up today is to protect the record, because what happens is any member from the public can file a complaint against Ms. Kawauchi’s appearance here in front of the board; it doesn’t have to be myself, it doesn’t have to be the applicant, it can be anybody from the public in regards to a violation of the Ethics Code. And the problem with that is that if the Ethics Commission, or the 5 EXHIBIT A Board of Ethics, makes a determination that Ms. Kawauchi was precluded from appearing in front of this committee because of the post-employment requirements, what that could ultimately do is void any determination that was made by this commission whether be in favor or in opposition to the applicant. I think that will be unfair to the process. So what I’m doing is I’m requesting at this time that we continue this matter, we request Ms. Kawauchi in the interim period of time to obtain an informal determination from the Ethics Commission. And the reason I say that is because it protects the process. And under the rules of the Ethics Rules, specifically Rule 2-91.2(g), it says a former officer or employee shall not be deemed in violation of this section of the Code with respect to conduct which conforms to an advisory opinion of the board, and none of the sanctions of this section may be applied. So therefore, once Ms. Kawauchi receives a determination that she is not in violation of the Ethics Code, then it protects the process. And that’s all I’m looking for at this time, and that’s why I’m requesting, and I’m objecting to Ms. Kawauchi’s appearance at this time. KAWAUCHI: Mr. Chairman and Director, may I have an opportunity to respond, please? GONZALES: Actually, I’d like to entertain a motion to go into executive session, if one of the, my fellow commissioners could help me with that. MIYASATO: I’d like to make a motion that we move into executive session to discuss these matters that have just arisen, and that the Planning Director and Mr. Brilhante be included in our executive session. HENKEL: Second. GONZALES: Second? HENKEL: Second. GONZALES: Anybody opposed, Commissioners? Okay, so, at this time we are going to go into executive session. Mr. Brilhante, we are asking that you stay with us. Sorry, folks, to do this so early in the morning. We’ll make it quick. DARROW: If we could ask everybody if they can make their way towards the exits. Thank you. EXECUTIVE SESSION – The Commission went into executive session at 9:36 a.m. The Commission came out of executive session at 9:46 a.m. by a motion made by Commissioner Miyasato, seconded by Commissioner Henkel, and unanimously carried by a voice vote of all members in attendance. GONZALES: All right. Thank you for your patience. The Windward Planning Commission is now back in session. At this time I’d like to ask Ms. Tita and Ms. Kawauchi, if you would stipulate to a continuance in order to get that opinion from the Board of Ethics, perhaps we can continue this next month. KAWAUCHI: Good morning, Chairman Gonzales and Members of the Planning Commission and Planning Director Kanuha. My name again is Jamae Kawauchi. I represent the petitioner for standing, Susann Tita. To take up the matter that Mr. Brilhante has disclosed to you today, I’d like to make a statement prior to answering your question, if I may. I’m concerned that what 6 EXHIBIT A Mr. Brilhante has brought before you has not been placed in your agenda; the matter of the representation of a client, I mean whether or not I have an ethical issue related to my employment with the County is not an agendized item. In my opinion you are at risk of a violation of the Sunshine Law, and I would ask that you seek the opinion of your corporation counsel to determine whether or not you just violated the Sunshine Law by discussing this matter in executive session when it was not agendized today. As to answering the direct matter, I will tell you that the allegations made by Corporation, Deputy Corporation Counsel Mr. Bill Brilhante are not founded; there is no, there is no substantiation to his allegation that I have or will be, by representing Ms. Tita today, be in violation of the Hawai‘i County Code relating to work performed after employment or services ended with the County. Mr. Brilhante in his statement earlier has failed to include within his paraphrasing of the Hawai‘i County Code that the, that it’s subject matter related, that the employment, if you are an employee of the County and you work on a particular matter that relates to something you are taking up after you left the County, then -. BRILHANTE: Uh, Mr. Chair -. KAWAUCHI: Mr. Brilhante -. BRILHANTE: I object -. KAWAUCHI: I would like an opportunity to speak. GONZALES: We are going to let her have her say and -. KAWAUCHI: Thank you, Chairman. GONZALES: And then we were going to continue on. So go ahead. KAWAUCHI: Thank you, Mr. Chairman. Subject matter related, so he has failed to include that in his discussion that he made publicly today, okay? I have not had any matter within my employment as Hawai‘i County Clerk or as a deputy prosecuting attorney related to this case come up. This application for an amendment was filed in October 2013: I had long since left the County at that point, okay? So I have nothing, nothing related, I have never had any kind of topic related to this amendment application come up while I was an employee, okay? So I want to alleviate your concern. Now, with respect to your request, however, my client will be amenable, will not oppose a continuance, but not on the grounds for, not on the grounds that were raised by Mr. Brilhante. We are amenable to a continuance to allow us to have a discussion with the Community Association to see if something can be worked out with them. My understanding – last night I tried to communicate with the Association president last evening and was unable to get in touch with her, she left a message for me late last night and I picked it up about 10:00 last night, I wasn’t able to give her a call this morning, okay – my understanding is that the Association has a board meeting scheduled for this Sunday. My client has authorized me to attend the meeting with her. And my understanding is, through the board representative Mr. John Lehnert, that he has no objection to me coming to the meeting as well on Sunday. Maybe we can work this situation out and avoid, you 7 EXHIBIT A know, any potential, any further work for the Planning Commission to have to resolve. So on that ground, my client would not oppose a continuance, and we’d appreciate the, we appreciate the Planning Commission’s courtesy with that regard and understanding. So thank you very much. GONZALES: Briefly. BRILHANTE: Okay. Again, William Brilhante, Deputy Corporation Counsel. First, again, to clarify the record, I haven’t made any allegations regarding any impropriety with Ms. Kawauchi representation here today. The only issue I did, the only reason I raised this issue is to protect the record. Like I stated before, there is specific language codified under the Hawai‘i County Ethics Code regarding post-employment prohibition. And it’s specific to that. And Ms. Kawauchi has articulated justification as to why she feels she is not in violation of the code. I think that’s very appropriate. Unfortunately, this is not the venue for that argument; the venue for that argument is in front of the Board of Ethics. And that’s all we are requesting is that before we go down this road regarding the likelihood or even the mere possibility of a violation of the code, I’m protecting the process. We should get an informal opinion from the Board of Ethics. And that’s all I’m wanting to have here done today is that we get the determination before we move forward with the hearing. Thank you. GONZALES: Okay, thank you. I’m going to ask the other Commissioners what you think, if anyone has got anything they want to say. If not, I’m -. Myles. MIYASATO: I just would like an opinion, you know, on the Sunshine Law, you know, as far as the agendized item. Representation is not, in my opinion, something that would be on a, agendize item, so I can’t see a violation of the Sunshine Law. I would like your opinion. MASUNAGA: Yeah, in terms of this body, I think that’s beyond the scope of what would be agendized for the Windward Planning Commission. The issue is more with the Board of Ethics. MIYASATO: Well, with that, I would like to make a motion that we move for a continuance, with an opinion from the Board of Ethics to the Director on this matter of representation from a former employee. GONZALES: Does anybody want to second that? HENKEL: Second. GONZALES: With that, any discussion from other Commissioners? Personally, if they are asking for a continuance just to try and work it out, wouldn’t that kind of be a better way to go at this point, rather than asking for an opinion from the Board of Ethics when it may not be necessary, if they can just solve this, come back next month, and none of this has to be this way? Yes, sir? HENKEL: If they do work it out at the Association meeting, then that would come up at a continuance, I believe, right, and make a moot point, I think. GONZALES: Counselor, is that -? MASUNAGA: I would advise you to vote on the existing motion right now. 8 EXHIBIT A GONZALES: Would you like to go ahead and have a vote on your motion, Commissioners? MIYASATO: You know, if we don’t vote on the motion and if you don’t work it out, we are right back where we started. And all these people that came out to testify would come out again, and we’d have to do the motion at that time. If they work it out, then it’s all moot, and we can move forward. GONZALES: Okay, then I guess we’ll ask for a vote. LEHNERT: Excuse me, please. May I speak before you vote? MASUNAGA: No. Sorry, there is a motion on the floor. GONZALES: Yeah, I think we have to -. MASUNAGA: There is a motion pending right now. DARROW: Mr. Chairman, if I could ask for clarification. The motion before us is to, my understanding is, have a letter brought to the Planning Director regarding the matter. Do we want to be more specific as to a letter from a particular person and also a time frame? MIYASATO: It was stated Board of Ethics with an informal opinion. DARROW: Okay, in regards to this matter, okay, and -. MIYASATO: In regards to the representation. DARROW: Okay, in regards to representation and -. MIYASATO: By a former employee. DARROW: To the next Planning Commission meeting? GONZALES: That sounds reasonable, yes. ARAI: Excuse me, Mr. Chairman. Honestly, I don’t know how long it would take to try to render an opinion from, get an opinion on this particular matter from the Board of Ethics. What we could do is remain in communication with Ms. Kawauchi and see if, once we get that opinion, at that point we can go ahead and schedule, because I don’t want to schedule something in advance, and honestly, I have to set the schedule by next week Monday. So I would prefer that we leave it open until we have the opinion in hand, and at that point I can go ahead and properly schedule, if that is okay with the parties that is. GONZALES: Is that okay with you, Commissioner Miyasato? MIYASATO: Yeah, that’s fine. 9 EXHIBIT A HENKEL: Yes. GONZALES: Okay. DARROW: Okay, with that, I’ll take the motion. Thank you. Commissioner Miyasato? MIYASATO: Aye. DARROW: Commissioner Henkel? HENKEL: Aye. DARROW: Commissioner Heaukulani? HEAUKULANI: Aye. DARROW: And Mr. Chairman? Oh, I’m sorry. Commissioner Moses? MOSES: Aye. DARROW: And Mr. Chairman? GONZALES: Aye. DARROW: The motion passes, five to zero. The discussion ended at 10:00 a.m. Respectfully submitted, Noriko Sauer, Secretary 10 EXHIBIT A