HomeMy WebLinkAbout2014-05-01HEARINGTRANSCRIPT-CONNECTIONSCBESSSPP12-138
WINDWARD PLANNING COMMISSION
COUNTY OF HAWAI‘I
HEARING TRANSCRIPT
MAY 1, 2014
Connections New Century Public
A regularly advertised hearing on the application of
Charter School/CBESS (SPP 12-138)
was called to order at 10:42 a.m. in the County of
Hawai‘i, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i with Chairman
Ronald Gonzales presiding.
COMMISSIONERS PRESENT: Ronald Gonzales, Charles Heaukulani, Gregory Henkel,
Wallace A. Ishibashi, Jr., Raylene Moses, and Stephen Ono.
ABSENT AND EXCUSED: Myles Miyasato.
ALSO PRESENT: Duane Kanuha (Planning Director), Margaret Masunaga (Deputy
Corporation Counsel for the Windward Planning Commission), Amy Self (Deputy Corporation
Counsel for the Planning Director), Jeff Darrow (Staff Planner), Maija Cottle (Staff Planner),
Sarah Hata-Finley (Secretary), and Melissa Dacayanan (Planning Commission Support
Technician).
And approximately 36 people from the public in attendance.
APPLICANTS: CONNECTIONS NEW CENTURY PUBLIC CHARTER SCHOOL/
CBESS (SPP 12-138)
Discussion and action on the Hearings Officer’s report and recommendation on an application
for a Special Permit to develop a K to 12 charter school campus with dorm facilities and related
uses on approximately 70 acres of land situated in the State Land Use Agricultural District. The
property is located on both the southwest and northeast sides of Edita Street near its intersection
with Kaūmana Drive and adjoining the Pacific Plantation Subdivision in Kaūmana, South Hilo,
Hawai‘i, TMK: 2-5-006:141.
GONZALES: Next up is Item No. 7, unfinished business, applicant Connections New Century
Public Charter School/CBESS, Special Permit 12-138. Before we get started with your
presentation, Commissioner Henkel wants to make a statement.
HENKEL: Hi, my name is Greg Henkel. Bear with me a few minutes here. I’ve got a statement
I want to read. The DOE has led Hawai‘i students to the rear when it comes to practical
st
education in 21 century job skills. Charter schools have become an important vehicle that raise
the standards here in Hawai‘i, and they’re achieving this goal despite gross funding inequities.
They do this by putting their resources directly into the classroom rather than into top-heavy
administrative positions on Oahu, and they do this by developing new curriculum in classes that
reflect modern needs. This is also one of the reasons that charter schools have become targets of
the State’s educational establishment and by others resistance to change, resistant to change no
matter how beneficial the change might be. I’ve worked with charter schools on this island since
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their inception. First at HAAS at Kuokoa and finally Connections. My three children benefitted
from charter school education, and I’m a passionate supporter of public education and the charter
school movement. So, I would like to disclose that I am currently employed by Connections
Public Charter School. I’m a program specialist/artist with the school’s makery program. This
program teaches students from elementary through high school how to use 3-D autocad software
and use computer numerically controlled or CNC machines such as laser printers, 3-D printers,
and CNC mills. I have reviewed the criteria provided by the Hawai‘i County Board of Ethics
and see no conflict of interest in serving on the Planning Commission in considering this matter.
That’s HHC [sic], Section 2-84a. I have no substantial financial interest in Connections Charter
School or specifically in building a new campus. I’m not a contractor or builder, and in no way
profit from the Connections building project. I don’t presently and will not in the future work at
the new campus. I have no stake whatsoever in the new campus. I’ll be 65 years old in a couple
months and am planning on retiring in two years. Even if the ground were broken tomorrow on
this project, I’ll be retired before the initial occupancy can be achieved. My familiarity with the
school, its students, philosophy, goals, and principles would bring an understanding to the
Commission that’s been absent thus far. That being said, there’s still some concern that I may
show bias in this matter. I supported Commissioner Ishibashi last August when he
discussed/disclosed his employment with UH Hilo in a matter that came before the Commission.
He stated that there would be no conflict with his involvement--that he didn’t work in the
geographic area of the project. I don’t think anyone here would question Mr. Ishibashi’s support
of UH or his ability to remain impartial despite of community concerns that were disclosed at
that meeting. I would appreciate the same consideration. But, in spite of this, I’ve been
counseled by Corp Counsel that I should recuse myself.
Before I do that, I’d like to talk about bias a little bit. Where I don’t feel like I’m biased, I feel, I
don’t feel it’s biased to acknowledge facts. And the facts of this case are, some of them, that the
traffic impact reports have given the project the green light. The Department of Water Supply
has given the project a green light. The Planning Director has given this project the green light.
Biological surveys have given the project a green light. Connections has met all the land use
requirements and has always attempted to mitigate community concerns. These aren’t biases.
These are facts. What a bias is, is to ignore these facts, and present findings that are inaccurate,
unsubstantiated by qualified organizations, and sometimes downright inflammatory. One,
Connections mandates specify that it’s an open enrollment school. They take anyone if there’s
room no matter where they’re from. There are students in Connections from Honoka‘a. The use
of the phrase—the continued use of the phrase—not intended to service the needs of the
immediate community is inaccurate and demonstrates an ignorance of charter school models and
is biased. Students attend charters because among other reasons, their curriculum is unique and
meets the needs of these students.
Another repeated phrase that we hear is that 50 percent of the Connections students come from
Puna. That’s irrelevant and inaccurate. In the student body right now, there is a high number of
students from Puna, but that’s not a bad thing. I’m from Puna. My kids are from Puna. Most of
our elementary kids, the younger kids, are from Hilo, though. And I think that the further a
school moves away from Puna, that, and these younger kids are the future of Connections, then
there will be a higher number of people just because of travel difficulties.
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Another item that approached was the--about biological surveys. It was stated that Connections
was going to build on the lower campus—the 30 something odd acres—it was quoted there are
pristine ‘Ōhi‘a forests. And it’s not. The biological survey determined, which I have right here,
that it is full of invasive species. These invasive species were generated by the establishment of
the neighborhood. So, Connections wants to come in and be a, you know, to help ease this
invasive problem that was caused by the neighborhood and yet they’re being accused of leveling
a pristine ‘Ōhi‘a forest. That’s up north on the part that Connections is not going to develop. So,
with that, in order to expedite the process, and not cause any delays, you know concerning the
Ethics Commission and so forth, even though I don’t really feel that I should have to recuse
myself, I’m going to recuse myself from this agenda item and hope that you folks can do the
right thing. So, thank you.
GONZALES: Thank you, Commissioner Henkel. Margaret.
MASUNAGA: Thank you, Commissioner Henkel, and I just, for the record, I did want to state
the Code section we were looking at, does apply to Commissioners, and it is Section 2-84,
Conflicts of Interest, and it says in part under subsection “a,” no officer, of which a
Commissioner is deemed in the definition, shall take any official action affecting a business or
other undertaking in which that officer or employee has a substantial financial interest. And I
did consult with my colleagues at the Office of the Corporation Counsel, including Renee
Schoen and Molly Stebbins, and they did concur with me. I know it’s, you know, it’s a very
divisive application but you know that was the advice that we felt needed to happen today. And
I want to thank you.
HENKEL: Thank you for that but you know I still wonder why I feel the circumstances of my
employment and participation are the same as Mr. Ishibashi’s, and I’m wondering why the same
standards didn’t apply back then. And this is in no way a criticism of Wallace by the way.
GONZALES: Thank you, Commissioner Henkel, and I realize that you’re doing this in order to
get this moved along.
HENKEL: I want to see it move along.
Commissioner Henkel recused himself at 10:51 a.m. and observed the meeting from the
audience.
GONZALES: Thank you. Before we go any further, if anybody hasn’t signed up to testify,
please see the ladies over here on my right. We have 4,000 pages of documents from this since
we’ve started. We’ve read it all. We’ve looked at it all. Please if you’re going to testify you
know, make it good. I mean, we don’t need redundancy. We had enough. All right, with that,
Jeff, bring us up to speed.
DARROW: Thank you, Mr. Chairman. This is a continued hearing. We’ve had a number of
hearings on this matter. What I would like to do is just do a brief overview of the area the
application and our timeline that’s occurred up to this point. Thank you.
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Again, the applicant in this case is Connections New Century Public Charter School, CBESS as
well, Special Permit Application 12-138. The area of the subject application is in the Hilo
District, South Hilo District, more specifically, we’re looking in the upper Kaūmana area. You
can see the properties. It’s actually one property but divided by Edita Street. It’s outlined in a
black outline. This is a closer view. For reference, we have Kaūmana Drive that is running
through the upper middle portion of the map and running parallel with that is the Puainako
Extension. Again, you’ll notice that you have the dark outline, outlining the subject property.
We have Edita Street running through the middle of the property, and Mele Manu Street which is
adjacent to this area. This consists of the Paradise [sic] Plantation Subdivision. For reference,
you’ll see the different colors maps—I’m sorry, different colors on the map. The light green,
dark green, blue represents Agricultural zoning, so this particular property is zoned Agriculture –
1 acre. The mustard color lighter yellows represent residential. And on your right side of your
map, you have Residential – Agriculture zoning.
This is the State Land Use Boundary Map of the area. The green represents Agriculture, and the
pink represents Urban zoning. And you can observe that the subject property is within the State
Land Use Agricultural District.
The General Plan for this area identifies the subject property as Low Density Urban. You do
have some Rural designations as well as some Important Agricultural land.
This is an aerial photo. Again, we have Puainako Extension on the lower right portion of the
map. We have Kaūmana Drive that provides access to this area, Edita Street, Mele Manu, as
well as the subject property which is currently vacant, outlined in a black outline.
The applicant is requesting a Special Permit to develop a K to 12 charter school campus with
dorm facilities and related uses on approximately 70 acres of land situated within the State Land
Use Agricultural District. Because this particular application is over 15 acres, the actual, if the
Planning Commission recommends a favorable recommendation, it will go up to the Land Use
Commission. If the application is denied at the Planning Commission, the application is denied.
This is an overview of the facility on both sides of the property. The main campus will be on the
lower portion, which they call the lower parcel. The upper campus or the upper parcel has, is
only identifying an elevated walkway. You can—they also have the Kaūmana Cave system that
runs underneath portions of the property. This is identified with a gray color and is shown
underneath.
This is a site plan of the lower parcel. It again identifies all the different buildings that will be
associated with the Special Permit application.
These are just site photos of the area. This is on Kaūmana Drive looking mauka. Edita Street is
on your left. This is on Kaūmana Drive looking towards makai. Edita will be on your right side.
This is on Edita Street looking towards Hāmākua. You’ll notice that there is a dedicated left turn
lane as well as a right turn lane. Currently, the shoulders are grass shoulders except where there
are some driveway accesses. This is a little further up again looking towards Kaūmana Drive on
Edita Street. You have the grass shoulders. The subject property would be on your right and
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your left. And, again, this is a little further up showing that fronting the subject parcel on your
right side, you have quite a wide, shoulder, paved shoulder. And again, this is Edita looking
towards Kaūmana on the left side which is also a portion of the subject property. You can see
that there is a guardrail.
This is looking at the lower parcel that there is a gate and fence around the lower parcel. This is
on Edita Street looking directly makai. And this again is on Edita Street. We’re looking towards
Mele Manu Street. The subject property is on your left and right, and on your right side, you can
see that there is a guardrail as well as a drainageway.
The timeline. The Planning Commission hearings. We’ve had a number of them. This began in
November of 2012, was our first hearing, then it was continued to December 12, 2012.
January 10, 2013—at this hearing, a motion was made to deny the application. It was not voted
upon. It was just the motion was made. It was continued to allow Findings of Fact, proposed
Findings of Fact, Conclusions of Law, Decision and Order to be prepared. When we came to the
th
March 7 hearing, 2013, a contested case was requested by the applicant as well as an
intervenor was approved for standing, and that is intervenor, Jeff Gomes. We began contested
stnd
case hearings. This was October 21 and 22 of 2013. We had another hearing on
th
November 12 of 2013, which included a site inspection of the campus or the property. And
nd
lastly, we had two more hearings in January—January 8th and January 22 of 2014. During the
contested case hearing or up to this point, just briefly touch upon some of the submittals that
have come to the Planning Commission.
Oh, I don’t know what happened there. Sorry about that. We’ve had the Planning Director’s
Background Report, Revised Recommendation and Revised Conditions. We had the applicant’s
Findings of Fact, Conclusions of Law, Decision & Order that was submitted, the Intervenor’s
Findings of Fact, Conclusions of Law, Decision & Order. After the contested case hearing, we
had the Hearings Officer’s Report. We had the Applicants’ Exceptions to the Hearings Officer’s
Report. We had the Planning Department’s Exceptions to the Hearings Officer’s Report. And,
we had the Intervenor’s Support Statement of the Hearings Officer’s Report. Lastly, we have the
Applicant and Intervenor’s requests for oral argument which would be taken up today. That
concludes our presentation. Thank you.
GONZALES: Thank you. Any questions for staff limited to clarifying anything he just said?
Commissioners? Thank you, Jeff. For the record, too, I need to, I just need to confirm with my
fellow Commissioners that we’ve all—some of us haven’t been here for all the hearings—we’ve
all got ourselves up to speed on everything. We’ve all reviewed everything. Very good. I think
we’d like to proceed with public testimony at this time. So, if I could bring you up four at a
time. I’m going to ask for Elizabeth Truesdell, Pauline Ke‘ala Lee Loy, Henry Lee Loy, and
Ivan Mochida. Could I have you all raise your right hands, please? Do you swear to tell the
truth before the Windward Planning Commission today?
TESTIFIERS: Yes.
GONZALES: All right. You have three minutes. Please use the microphones. State your
name, where you live, and go ahead.
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TRUESDELL: I’m Elizabeth Truesdell. I live at 250 Kristiano Street which is off Mele Manu.
As a secondary school classroom teacher for 31 years, I have accrued much experience with
schools and students and families. All of those years have been spent working in independent
schools that have both day and boarding programs, though I myself am the product of a
completely public education from kindergarten through graduate school.
Student safety is a huge concern for anyone and everyone involved in an educational institution.
I remember walking to our neighborhood elementary, middle, and high schools; however, that
was the 60’s and 70’s. Now, many local students ride the school bus, even to local public and
charter schools. Situating a campus at the singular entrance and exit to an entire subdivision
creates numerous potential safety and traffic hazards for students and staff of the school, as well
as residents of the subdivision, even more so due to the fact that the majority of the students will
be transported to the campus via car or bus. Additionally, the windy and narrow Kaūmana Drive
is already a challenging commute with the projected mauka residential development and
additional use of Saddle Road due to its newly completed improvements—this before the elder
care facility being constructed on lower Kaūmana Drive comes online adding more use and
stress to Kaūmana Drive. The additional load of cars and/or school buses servicing the proposed
Connections Public Charter School campus off Edita Street is a significant concern to drivers in
the area.
As a teacher, I know that students with long commutes to school face increased academic
challenge due to the extended length of their day—bus or car drive to school, full day of classes
and activities, bus or car ride home, then homework. Though the proposed school site is just up
the hill from the current site, why not look for a location closer to where more of the students
reside, thereby making their school life easier, rather than maintaining or extending the already
long day for them.
I think we can all agree that Connections Public Charter School needs a new home. Assessing
the needs of the full build out for the new Connections campus and the community the school
serves then finding a situation to meet those needs is critical to the long-term success of the
project. I firmly believe that the Kaūmana site is not a suitable location to meet the physical and
resource needs of the proposed campus, not from a “not in my backyard” point of view, but from
the perspective of a professional educator looking to find a pono fit for both the school and the
existing neighborhood. Thank you.
GONZALES: Thank you. Any questions for Ms. Truesdell? Mrs. Lee Loy?
LEE LOY, P: Aloha, my name is Pauline Ke‘ala Lee Loy, and I am a resident of Mele Manu
Street in Kaūmana. As members of the Windward Planning Commission, you will ultimately
determine the recommendation or denial of a special use permit request for the development of
Connections Public Charter School on State DLNR property on Edita Street. The school has
already been granted the lease for the property. However, they are currently awaiting the green
light to proceed with the development. After hearing arguments to both sides, the hearing officer
assigned this case has recommended the denial of a special use permit for this specific request.
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In opposition of this development is a Kaūmana community unaware of the proposed project to
build a school to accommodate more than 400 students and faculty and staff, until long after the
release of the environmental assessment. A full environmental impact study was never
completed. A traffic study, more like a car count, was completed in 2010 but traffic conditions
have changed drastically since the completion of the Daniel K. Inouye Highway also known as
Saddle Road. This is a prelude to the imminent danger that Edita Street will encounter if the
development is granted a special use permit. Fortunately, Mr. Gomes was paying attention to the
proposed Connections development, and we as a community were able to intervene and
participate in the political process before the actual development was granted a special use
permit. Mahalo e ke Akua!
Often times, the community loses interest when things are you know set aside for a duration of
time. We remain steadfast because it is that important. As responsible land stewards, we need to
remain mindful of our natural resources. We need to be vigilant with the health and safety of our
community. At the same time, it’s our obligation to support education and the many options to
learning such an institution can provide its learners. It’s all a delicate balance. Again, we’re not
against the development of a charter school. We are against any development of that magnitude
in the proposed area as it evidences health and safety concerns at its current proposed site. I urge
you to deny a special use permit. I am convinced a more suitable site is available.
Thank you for thinking long and hard about the decision that rests on your shoulders. This is a
huge kuleana—one that can permanently change the landscape of a neighborhood and an island
community. There are just too many cautions that outweigh the benefit of granting a special use
permit of this specific site. Thank you.
GONZALES: Thank you. Any questions for Mrs. Lee Loy? Charlie.
HEAUKULANI: Did you have a specific alternative site you were referencing?
LEE LOY, P: I do not. I do not believe that is my kuleana, but I believe one exists.
GONZALES: Thank you. Dr. Lee Loy.
LEE LOY, H: Members of the Windward Planning Commission, my name is Dr. Henry Lee
Loy. I am a resident of 1579 Mele Manu Street in Hilo. I am not against the education of
students from the Connections Public Charter School. I think all of us here today agree—we
want to promote the best interest of students whether they attend charter, public, private, or home
schools. Never should the lives or safety of any student be jeopardized. I oppose the proposed
location of the school because it will have only one way in and one way out, presenting a clear
and dangerous situation for students, faculty, and the neighborhood residents. Traffic on
Kaūmana Drive is increasing the threat of more accidents.
A few months ago, I called the County Department of Traffic and commended them for the
astute use of “shark teeth striping” painted on the road to warn drivers to slow down because of
the dangerous road conditions. I recommended additional “shark teeth striping” be used around
the dangerous curve fronting the Kaūmana Caves located about a 100 yards from the proposed
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project. They must have agreed with my concern about the dangerous conditions because the
County Traffic Department recently added additional “shark teeth striping” as I show here in this
recent photo.
During the contested case hearing, the public was allowed to give testimony at the start of each
day. Not once during these opportunities did I hear any public testimony in support or in favor
of the application for Special Permit Application No. 12-138.
Any development of this magnitude is inappropriate for the proposed location. You have been
given the authority to deny or approve this application for a special use permit. In the interest of
the safety and well being of students and the community, it is my hope that such a request is
denied. Thank you very much for your time.
GONZALES: Any questions for Dr. Lee Loy? Thank you. Mr. Mochida.
MOCHIDA: Good morning. My name is Ivan Mochida, and I’m building my home on Edita
Street near the proposed school. I’m a small contractor and have been involved in building on
properties that also require approvals by the Commission and Council. Thus, I’m familiar with
the importance of working with the neighboring community. If I had known that the school was
going to be built there, I would not build my home. I was hoping to live and retire in a peaceful
residential community. With the school, however, all of this would be lost. The noise impact
would be great. The traffic impact would be huge. The quality of life that I thought would be
gone forever. In turn, this diminished quality would be flat in the reduced value of our
properties. It is certainly not fair to ram a land use with such a huge impact into a small
residential community. Don’t get me wrong—I’m not against anything happening on the
property. I believe that there are many uses that require Planning Commission approvals that I
would be supportive of. Some of these uses would include a nursing home, small medical
facility, and even a child facility. The impact of those kinds of use would be benign. Like my
neighbors, we believe that schools are needed. We just believe that because of its huge impact,
the site would be in the wrong location. It would be no different than having a COSTCO or
KTA Super Market at this site. Good use, wrong location. Please help us by asking the
applicant to find another location and be denying this request. Thank you very much.
GONZALES: Any questions for Mr. Mochida.
ONO: Question.
GONZALES: Yes sir.
ONO: Out of curiosity, do you know the number of vacant lots in that community?
MOCHIDA: I do not know, but on my street, I’m the only vacant lot right now which, my house
is being built now.
ONO: Thank you.
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GONZALES: Any other questions? Okay, thank you. We’d like to ask Michael Bishop, Wayne
Kanemoto, Layne Novak, and Randy Riley to come up. Could I have you all raise your right
hands, please? Do you swear to tell the truth before the Windward Planning Commission today?
TESTIFIERS: Yes.
GONZALES: Thank you. Use your microphones. State your name, where you live, and you
will have three minutes. Thank you.
BISHOP: Good morning. My name is Michael Bishop. I’m a Kaūmana resident. Throughout
this sorted action, there are two topics that have clearly come to define the foundation for this
special use permit sought by Connections Schools and their associates—objection and
speculation.
The applicant has speculated that the special use permit is the correct platform for the size and
scope of change its plans will impact on the leased agricultural lot. The applicant also speculates
its limited County water allotment should not restrict its Phase One build-out of barns, stables,
dormitories, caretaker’s residence, followed by Phase Two, money providing, of classrooms.
The applicant blindly speculates safety for the children, workers, and visitors would be
sufficiently addressed on a campus bound by hog wire, tightly surrounded by natural forest,
narrowly restricting the only entry/exit half a mile away up a hill.
Objections by the applicant can be summed in a simple phrase, “how long has this process been
going on.” As a community member of Kaūmana, I have speculated on whether this particular
lot was the most suitable plot out of all of the sites the State and the applicant had access to and
chose to review. I object to the thought that the County would be drawn into a State court over
the exercise of County due process. And the Windward Planning Board, as the Windward
Planning Board, object to speculation, provide sound guidance, and set proper precedence for our
Islands.
GONZALES: Thank you. Any questions for Mr. Bishop? Thank you. Sir.
KANEMOTO: Good morning. My name is Wayne Kanemoto, and I oppose the building of the
Connections Charter School in Kaūmana. The applicant has not convinced the Kaūmana
community, the hearing officer, and some members of this Commission that they should be
awarded a special permit. From my perspective as an educator and administrator, there are tasks
and information that Connections representatives have not done. The first one is the educational
specifications of standards for facilities provides what I consider to be an overarching or critical
factor. That is, to meet the needs of the community, this participatory process provides the
means of involving educators and the community and instilling a sense of pride and ownership in
their school. I believe that, that’s what Connections missed--to get in the community, as
evidenced by our testimony and our presence.
The other part is they had talked about needing 70 acres, but the selection, the site selection
criteria specifies, oh, well is a guideline and for a high school with a thousand enrollment, they
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would only need 50 acres. So, this, it doesn’t make sense. They haven’t justified why they need
70 acres for their property, for their school.
As a principal, I’ve faced similar situations. I understand what they are going through.
Financially, as you’ve heard, charter schools have had problems financially being able to sustain
and conduct their operations. And, I think what’s missing here is that the priority is really for
instruction, and not for schools for facilities. And when you have a phase development, what
happens is that you have multiple campuses, and it impacts on your staff training, what we call
articulation between grade levels because of separate campuses. So, it really doesn’t make
sense. There is—I think it’s foolish, in my mind, it’s foolish expenditure of their funds, their
limited funds.
That’s pretty much about it. Thank you.
GONZALES: Any questions for Mr. Kanemoto? Thank you. Ms. Novak, you’re also speaking
on behalf of Norine Okuhara and Donald Ikeda?
NOVAK: Yeah.
GONZALES: Okay, and she did promise to be mindful of our time constraints.
NOVAK: Okay, so who do you want first? Or do I do both?
GONZALES: You can just do your thing.
NOVAK: Okay. “Good morning Commissioners, my name is Norine Okuhara, and I lived on
1209B Kaūmana Drive for over 40 years. My home is right below where Commissions (sic)
want to build their school. We, the community have voiced many concerns, i.e. water, traffic,
etc. They, John Thatcher, Ted Hong and “their” people, always said that they have addressed
our concerns. They have not followed, explained, or implemented what they said they were
going to do. They have only talked about it, but we have yet so see any concrete plans of
implementation. I, therefore, do not trust them because unless things do not, do not go their way,
“oh, the community is against the students, etc.” I have attended many meetings where by the
students themselves told the committee members that the community was against them. We
have always told the students in our testimony that we were not against the students per say but
against the way they, the adults, have conducted their so-called open forum meetings, inviting
the community members. As a retired teacher, this has really upset me.
I had also attended the meeting conducted by Judge Sandra Song. I feel that her judgment was
accurate and just. According to John Thatcher, quoted in the Hawai‘i Tribune Herald, he claims
that Judge Song’s conclusion was inaccurate. It was not inaccurate. She brought out all of the
points that were pointed out during her hearings. I am not being biased because she favored the
community. She could see that the community members were speaking sincerely and from their
hearts.
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Although I cannot be there for this meeting, thank you for allowing me to present my testimony.”
Next one is, the next one is from Donald Ikeda.
“Thank you for allowing me to provide a few comments on the applicant’s request for a special
use permit. No one can deny that education is a fundamental need. No one can deny that a
school that serves the needs of non-traditional and/or special needs students is a good thing. But
also, no one can argue that any entity entering into an established community should tread
carefully and make a whole-hearted and honest effort to be a good neighbor. This means a
school, a business, or even another resident. When you come into a community, you must
remember that you are the new guy and show respect for those who are there before you. No
chest thumping, no bullying, or browbeating. Connections Charter School and its representatives
have failed this miserably. If this were a test, the school officials and representatives would have
D’s and F’s. Commissioners might also want to review their files and refer to all minutes of
DLNR meetings regarding the transgressions of the school administrators and the results of the
DLNR investigations that were necessary due to these transgressions.
I would like to ask that this Commission listen very closely to the concerns of the surrounding
community and to listen to their statements regarding the ongoing actions, misrepresentations,
and other un-neighborly acts by the school, its officials, and its representatives.
I would further ask that this Commission take time to read the applicant’s petition, all versions
completed to date, very carefully, and if you have not already done so, take the time to research
and confirm each of the carefully worded ascertations made by the school officials and
representatives. This carefully crafted document is full of half-truths and unfulfilled promises,
such as water, traffic mitigation, temporary housing, staffing, parcel size actually necessary for
planned activities, etc.
I would like to suggest that the school and its representatives be held accountable on a regular
and frequent basis if they are allowed to proceed. I would further suggest that unless proof can
be made of the fulfi-, excuse me, fulfillment of promises and ascertations set forth by the school
and its representatives, no progress be allowed until the promises and ascertations are fulfilled.”
Gotta read real fast. “I would like to highlight a few concerns that would cause me to think
allowing the school to go forward without imposing strict conditions upon the school and its
officials and representatives. My concerns are water credits, traffic mitigation. The dormitory
was first explained to the community to be used only occasionally, so the occasional visiting
foreign student or student groups would have a place to stay for a few days. This expanded into
occasional use also by visiting faculty and other guests of the school. The dormitory usage is
now further expanded into longer stays by multiple groups. It is easy to understand that the
school intends to use the dormitory on a regular, if not, full-time basis.
The school and its representatives have stated that it will not use a septic system to dispose of its
wastewater, human and animal waste, but instead will create a 12,000 square foot holding area to
collect all the wastewater products and treat them environmentally. In the meantime, the
residents in the surrounding areas will have, will be exposed to vermin, bugs, contamination,
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EXHIBIT F
disease, and odor. These unacceptable conditions will be increased when the planned livestock
raising takes place.
Please keep in mind that the school admits”—oh, “admits that only 30 percent of its students will
be”—oh.
GONZALES: Thank you. We all have Mr. Ikeda’s letter, too, so we can read it. Did you have
something to say on your behalf or is that—
NOVAK: No—
GONZALES: Okay. Any questions for Ms. Novak? All right. Sir.
RILEY: Hi. My name is Randy Riley, and I live at 282 Edita Street. And I’m not against
charter schools or any kind of education. I think it’s all good. I’m just against the location of
this school. You’ve heard all the reasons. You’ve heard all the testimony. I know firsthand that,
that intersection of Kaūmana Drive and Edita Street is very dangerous, and I believe the “shark
teeth” were put there because of very bad accidents. My wife was in there. The traffic is—it will
never, with the school going in there, it’s inadequate. I just hope that this Commission listens to
this community and listens to the hearing officer’s ruling. That’s all I ask of you guys. Thank
you very much.
GONZALES: Thank you. Any questions for Mr. Riley? Thank you all. I have one more on
here. Ming Peng? And if anyone else would like to testify, now’s the time to come sign up with
the ladies over here. Raise your right hand, please? Do you swear to tell the truth today before
the Windward Planning Commission?
PENG: Yes.
GONZALES: Okay. State your name, where you live, and you’ll have three minutes.
PENG: My name is Ming Peng. I live in the Kaūmana area. I have testified and provided
comments against the applicant previously. As a consequence, I was rewarded a subpoena by
the applicant for the contested case hearing. I’m just a community member providing opinion.
I’m no match against the skilled and highly trained attorneys representing the applicant.
I was asked on one of my previous statements if I were, if it referred to the full and completed
build-out of the school, to which I answered yes, but I just want to add that I’m not only just
against the full and completed build of the school, but I’m also against Phase One, Phase Two,
Phase Three, for all the reasons that, you know, was discussed previously.
GONZALES: Any questions for Mr. Peng? Okay, thank you, sir.
ONO: Mr. Chair, before we proceed, can I ask for a two-minute break?
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EXHIBIT F
GONZALES: Sure, actually, if I could get a motion just to close the public testimony part, and
we’ll take a—take a break.
MOSES: I make a motion to close the public testimony part.
ISHIBASHI: Second.
GONZALES: All in favor?
COMMISSIONERS: Aye.
GONZALES: Are there any objections? Okay, bathroom break. Five minutes.
Chairman Gonzales called a recess at 11:26 a.m., and the meeting was reconvened at 11:34 a.m.
GONZALES: Okay, at this time, we’re going to allow oral arguments. Do any of my fellow
Commissioners, would anybody object to that? Is that okay? Are we going to let them come up
and have their time?
ISHIBASHI: So moved.
GONZALES: Okay, I talked to both parties. They both said ten minutes should be more than
enough, so we’re gonna have Mr. Hong come on up, followed by I believe Mr. Fuke’s going to
represent Mr. Gomes. Then, probably Mr. Hong one more time.
HONG: Good morning, Mr. Chairman, and Members of the Windward Planning Commission.
My name is Ted Hong, representing CBESS, and I’ll be giving a brief oral argument this
morning.
First, two procedural matters. One is the notice of the hearing today sent out by the Planning
Department. I submit that the notice is insufficient pursuant to rules. Second, yesterday
morning, in Civil No. 14-1-0082, Nishi vs. Board of Education, Judge Edwin Nacino in the First
Circuit Court ruled that under Chapter 91, even though that there is a hearings officer who
submits findings and recommendations to a full board, the full board still has to fall under
Chapter 91 for contested case procedures, specifically Chapter—Section 91-9 regarding notice.
Additionally, Judge Nacino ruled that the full board has to take evidence, witnesses, cross
examination, the whole nine yards, with respect to a contested case hearing. Naturally, I
disagreed with him but that’s basically the ruling that’s going to apply. We had cautioned the
judge about ruling that way because that would now apply to all State boards and County
commissions, and it would be duplicative in terms of not only do you have a hearings officer
conducting a hearing, now the full board is actually having to conduct a hearing, and we thought
that was an overreach, but that’s the way the law is going to come down, and I submit for the
record, when this goes up, that we’ve received insufficient notice under 91-9 of the Hawai‘i
Revised Statutes. And my understanding is you’re only taking oral argument, and you’re not
going to allow us to call witnesses, present evidence, cross examine. Is that correct, Mr.
Chairman?
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EXHIBIT F
GONZALES: Correct.
HONG: Okay. Thank you. So I can proceed with my oral argument this morning after the
administrative issues.
The authority, why we’re here today, is governed by the County Code, the General Plan, Hawai‘i
Administrative Rules, and the Hawai‘i Revised Statutes. There are organizations, agencies,
individuals, trained professionals, and planning land use management development that have
gone through this project and vetted it and approved it. Grounds for the Special Permit, we’ve
discussed this previously, under Chapter 205, the Hawai‘i Revised Statutes, and the Office of
State Planning has agreed after looking at this project, that our project meets the goals and
requirements under the law. It articulated in the record what it believes that this is an unusual
and reasonable use. These are trained professionals in the area of land use, have looked at a lot
of projects. That’s their job. In terms of the Planning Department, again, trained professionals,
charged with responsibility of not only interpreting but enforcing the Zoning Code, the General
Plan, and you have two separate Planning Directors agreeing with this project--that we fulfilled
all the requirements of the Planning Commission Rules and General Plan.
Which brings us to basically the primary objections that this project has faced. The first one is
water, and you’ve heard about it a lot at these hearings. And some representations were made
about the lack of water with respect to this project by the hearings officer. So, you would expect
in terms of the hearings officer’s decision that the Water Department would have some
objection. And this is what the record says—that the Water Department has no objection to the
proposed application.
And in terms of the proposed or amended conditions 3 and 4, do you agree with those particular
conditions, and the Water Department did agree with them. That’s from Kurt Inaba in terms of
his testimony under oath for the first time with respect to some of these proceedings. So, in
terms of the water or the lack of water, the question is given this record, how does anybody reach
the conclusion that there wasn’t, there was insufficient water.
Let’s talk about the next issue that always seems to plague this project which is traffic. And you
see the testimony of not our expert witness because you could, anybody could say that our expert
witness is biased because we were paying for the expert witness, which is Mr. Rowell, but this is
Ron Thiel, from the County of Hawai‘i, who looked at this project. This is what his testimony
was under oath. Were there any deficiencies or shortcomings? No, he didn’t see any. In your
opinion, based on your experience in terms of Mr. Rowell’s TIAR, did it meet all the
professional standards and guidelines? Yes, it did.
And, I’d like to address the third point. And currently, the school only has one point for entrance
and exit. In your professional opinion, should they have a second point for exit, say a single
entrance point and a different exit point, Mr. Thiel’s answer is pretty clear. You have again an
engineer, traffic engineer, very experienced, you look at the record. He talks about the projects
he’s worked on and his qualifications, and that’s his conclusion. Unchallenged. There were no
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EXHIBIT F
witnesses brought by the intervenor. There were no witnesses to challenge at all any of the
findings by Mr. Thiel or Mr. Rowell, which brings us, brings me to the next point.
There were a lot of questionable practices that finally came up or were exposed in the hearing.
And that’s because the witnesses were not only placed under oath, as they all are here sitting at
the table, but now they’re subject to cross examination. And so, basically, in terms of all the
overwhelming testimony you’ve received concerning traffic from Mr. Melvin Yokota, what turns
out, happens is under oath, he’s actually an electrical engineer. He’s actually never done a traffic
report or submitted a traffic report. His firm that he works with does big electrical systems. The
closest he’s ever gotten to any traffic report was designing the electrical system for an
intersection with lights. Yet, when you look at the testimony that you’ve gotten from Mr.
Yokota, that certainly doesn’t comport with that impression. He gives you a different
impression, but when he’s finally examined under oath, he had to reveal he’s an electrical
engineer. Followed no industry standards with respect to traffic.
Mr. Yoshioka, former judge Mr. Yoshioka. The suggestion that he was acting in an impartial
manner for these proceedings is false. He actually tried to become an intervenor half way
through, which was rejected by the hearings officer appropriately. What also came out in his
cross examination was that he’s been having a law firm in Hilo ghostwrite some of the things
that he’s been submitting to you as a Planning Commission which, as Mr. Heaukulani knows,
may be a violation of the rules of professional conduct for lawyers. There’s a downtown firm
that’s not only been writing questions for Mr. Yoshioka but also the material that he submitted to
the Planning Commission. And what Mr. Fujioka—Yoshioka—also said was that Mr. Fuke gave
him information that he included in his submissions to the Planning Commission and to the
hearings officer, which brings us to Mr. Fuke.
During that particular hearing, Mr. Fuke gave contradictory, misleading, and inaccurate
statements. He denied giving any information to Judge Yoshioka. And also, he represented that
no school in the State of Hawai‘i or certainly on this island was put on Agricultural land. When
we pointed out under cross examination that Kamehameha Schools in Kea‘au has been on
Agricultural land and the predominant part of Kamehameha Schools in Kea‘au is on Agricultural
land, he just said, I stand corrected. Now, that would be fine if you have let’s say a lawyer
commenting about a traffic issue. You know, it’s a lay opinion. But, you have somebody who
used to be the Planning Director here for the County of Hawai‘i. You have somebody who is a
trained professional in planning. You have somebody who makes a living, a very good living,
off of land use management. So when he says there, and stands at the podium to the Planning
Commission and tells you that no school has been put on Agricultural land, under cross
examination, he had to admit that his prior statements were false.
And those are some of the questionable practices that these individuals have been bringing up
throughout the course of this proceeding. Unfortunately, we couldn’t subpoena everybody under
oath or get them under oath. They’re people here, and some person, one individual in particular,
who was actually actively ducking our process server. But she knows who she is.
In terms of the reasons for action, we’re requesting that you as a Planning Commission reject the
hearings officer’s decision. It lacks any legal authorities or legal citation and omits key
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EXHIBIT F
evidence. There’s a lack of consideration to any of the expert testimony. On the part of the
hearings officer--the overwhelming amount of information and evidence was also omitted by the
hearings officer. The Planning Director has highlighted or is asking the Planning Commission to
review the important information before making this decision on the Special Permit and if you
deny the application, to be very specific in terms of why you’re denying it.
The other thing in terms of the hearing, the intervenor, Mr. Gomes, failed to submit any sworn
expert witnesses, so when the hearings officer comes to the conclusion that somehow this permit
application should be denied because it overburdens governmental agencies, that’s pretty, that’s
a pretty important statement. I think everybody needs to take a look at that very carefully. So, if
it’s going to overburden any government agency, it must be overburdening the Water
Department, and there must be some kind of testimony—
As part of the County of Hawai‘i’s emergency practice procedures, at 11:45 a.m., the Civil
Defense sirens went off, and the meeting was briefly interrupted by a safety message over the
room speakers by Brandon Gonzales, Deputy Director of the Department of Public Works.
Okay, so I’ll get back to my point. One of the main considerations, main points the hearings
officer makes is that our application is going to overburden governmental agencies. And the
question is, where’s that going to come from? Is the Water Department being overburdened by
any of the amended proposed conditions? No, there’s no evidence in the record of that. How
about the Traffic Department of the Department of Public Works? Are they going to be
overburdened by any of the amended terms or conditions concerning our proposed application?
No, there’s actually nothing in the record about that either. So, what about the Planning
Department? Maybe the Planning Department was concerned about being overburdened by
some of the amended terms and conditions that we’ve been proposing, and—no, you don’t have
that either. How about the Planning Director? No. How about DLNR? No. Board of, what
about BLNR? No. There is no evidence. There is no testimony. There is no submission
indicating that with respect to the proposed amended terms and conditions of proposals, in terms
of our application, that it would negatively impact any County or State governmental agency.
Yet, that’s one of the reasons why the hearings officer chose to give us an unfavorable
recommendation. When, as lawyers, we make that kind of a broad statement, you would expect
it to be supported in the record and it isn’t, which makes my job easier later on. Provisions in the
Planning Commission’s rules and procedures, so what do you do after this? After today? What
kinds of things or alternatives does the Planning Commission have? Obviously, you can accept
or reject the proposed Findings of Fact, Conclusions of Law. You can reopen the docket and
take further evidence, or may make such other disposition of the case that is necessary in the
circumstances given the lack of support in terms of evidence and testimony at the hearing. I
think the only reasonable—the only intelligent choice that you can make—is actually to reject
the hearings officer’s report, and actually approve the application. Despite the fact that you may
not like it; despite the fact that there are friends sitting out there in the audience who have time
and time again opposed this project simply because they don’t want it in their neighborhood;
despite the fact that they’ve testified that perhaps they don’t like kids running through their
neighborhood. It may seem uncomfortable, but all of you took an oath to support the laws, and
the Constitution of the State of Hawai‘i, and the County of Hawai‘i. You sometimes have to
follow the law even though personally you may not like what you’re doing. That’s what all of us
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EXHIBIT F
have to do. So, I submit that that the Planning Commission should reject the hearings officer’s
decision and approve the application. Thank you.
GONZALES: Do any of the Commissioners have questions for Mr. Hong at this time? Okay.
FUKE: Good afternoon Mr. Chairman—
GONZALES: Good morning.
FUKE: --and Members of this Commission. My name is Sidney Fuke. I’m over here as an
advisor to the intervenor, Mr. Ted (sic) Gomes. So, he had asked me to, if I would assist him in
providing the summary, you know, this portion here. So, with your indulgence, I’d like to go
through, using this podium, because you know I, I have a hard time looking at both sides.
Anyway, so, I think on the process like the staff had explained it so I’m just going to skip
through that. One thing that Mr. Gomes and I guess, you know, he was really representing the
community for the most part. It’s just that noting that as was evident by today’s testimony, that
for the most part, people were not questioning the nature of the school itself but they had some
concerns about the appropriateness of the location. And as pointed out by the hearings officer’s
report, is it’s the applicant’s and not necessarily the community or the intervenor’s burden,
responsibility to have the burden of proof to show how the request is consistent with the
guidelines of the Special Permit and that has to be done by preponderance of evidence. So, the
statement that you know the intervenor did not provide corroborating witnesses and all that stuff,
bear in mind that, that burden really rests on with the applicant themselves. The critical thing is
like you know they make reference to the General Plan, sure—let’s look at the Land Use Pattern
Allocation Guide Map. There’s no question that the property is in the Low Density area, but
having a property within the Low Density area does not in and of itself suggest that it should
automatically be approved. You could have properties that, within the Low Density area and
sometimes it says commercial uses are okay, but you may need to go through the rezoning
process. Or you may need to go through a Use Permit process. So, just because the map shows
that this is an area for Low Density and schools are, you know, should be automatically
permitted, it’s not true.
The very fact that earlier, the, you know on your earlier application this morning, you had a
request for a, I guess a body fender shop up in the Puna District. If you check the General Plan
map, it’s not going to show you Industrial, so then the map is basically to serve as a guide. So,
then the question becomes if the General Plan as a guide then what, you know the map portion,
then what is, what are the more critical components. The more critical components become,
become the policies portion. And, here, I just selected certain portions, and let’s just look at
what this says. In public facilities, it says, encourage the provision of public facilities that
effectively service the community in keeping with environmental and aesthetic concerns of the
community. I gotta emphasize, the real emphasis is in community.
And in the land use portion again, it talks about encouraging the development and maintenance
of communities meeting the needs of its residents. The Use Permit, I put the use permit criteria
because even if, even if the property were in the State Land Use Urban District, it was zoned Ag
or zoned Residential, you still needed to have a Use Permit before a school could be established.
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EXHIBIT F
So, this is what the County Zoning Code says about a Use Permit. It shall not be materially
detrimental to the public welfare nor cause substantial adverse impact to the community’s
character, to surrounding properties, and shall not unreasonably burden public agencies, etc., etc.
If you look at the Special Permit criteria, it still talks about, does not adversely affect
surrounding properties. Talks about public, burden to public agencies, substantially alter or
change the character of the land and unusual conditions. The common theme you know between
the General Plan, the Use Permit, and the Special Permit in terms of the kinds of considerations
that go into the decision-making process, really relies, you know really relates to the community.
Now, what are Jeff and the rest of the community are saying about why it should be denied is
here on the question of the water. Look at the application itself. And that’s critical. The
application says that what’s available, they got 4,200 gallons per day. How much is required per
student? Sixty gallons per day. How many can that serve? Seventy students. What is the total
requirement for the school? And bearing in mind, the school they’re talking about is like about
400 students, 70 full and part time employees, a gym, a cafeteria, etc., etc. So, if you got only
4,200 gallons of water, and your total requirement is 26,100 based on the application now, that
represents the amount of water you have today is only 16 percent. So, then the question becomes
true, the consultant did testify that their alternative design scenarios you can reduce the water
use, but still there was no answer as to how the potable water needs for the entire development
was going to be provided. True, no construction plans are needed, but there is a need to
represent how you’re going to provide water for the balance of the project. Whether you’re
going to development wells, or you’re going to work something together with the Water
Department, but all it said in the report was to investigate other sources of water to support the
project. This is in their application.
So essentially what you have is like you know in terms of addressing the water, it’s a kicking—
kick the can down the road—kind of approach. It’s like oh, we don’t need to think about it but
you know at some point in time when the need comes about, we’ll talk about it. We’ll discuss it.
But that’s the type of analysis that’s called like segmentation. If you have like a traffic study, are
you going to evaluate the traffic study only by phases? If you have an archaeological
requirement, you’re going to do an archaeological inventory survey only of the lower portion and
not the entire area? There is an obligation to look at the entire property—that’s what you call
like the segmentation. So the EIS, based upon two Supreme Court decisions, they basically
shunned the whole—they developed the notion of segmentation. They said you got a project?
You’ve got to look at its totality. You cannot take it in segments.
So, the question then, basically now, if you look at their Exceptions, and if you ask yourself
today then, they said they’re going to build it in phases. But do you know now—can anybody
clearly state what will go in the first phase, knowing that you only have 4,200 gallons of water.
They represent that they may have like a high school, they might not have a gym, they might not
have a cafeteria. But even at the high school, it will not be sufficient to accommodate all of the
water that they have. So, I think it’s important to know that if you, if a decision is going to be
made, you need to know exactly what you’re approving, and I submit to you at this point in time,
you don’t know really what’s going to be coming in on the first phase. You might have an idea
as to the total project, but you don’t have an idea as far as how the infrastructure requirements
for the total project is going to be addressed.
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EXHIBIT F
The other thing, too, is like you know the police, the police comment, it’s kinda clear, you all
have it on the record. This is what the Police Department said. The development is being placed
in a residential area that will likely affect the quality of life for residents that border this
proposed site. There will be an increase in noise, crime, and traffic.
The applicant’s provided discussion on traffic, but there was no evidence to address specifically
the quality of life, no evidence to discuss the crime, no specific evidence to talk about noise. So
unlike the areas like traffic and archaeology, they did have specific studies to that. But ask
yourself, if you look on the application, or even through the contested case process, there were
no technical studies that dealt specifically with noise and social impact. And the noise
component is critical because noise—you’re relating to like traffic, you’re relating to the activity
itself, and the impacts to the community. True, on the traffic, the TIAR does state that the level
of service operates on an acceptable level. As Mr. Hong had indicated, I’m somewhat familiar
with that kind of standards given my profession—yes, I can agree with that. But you know
what? Seventy percent of the community still disagrees with that because they say, they question
first of all, the date of the study. The data was compiled in May of 2009, almost four years ago,
and even the traffic consultant conceded that the University, the KSBE schools and the high
school had ended and there was no examination of other streets kind of approximate to there,
particularly Chong Street.
Phillip Rowell, the traffic consultant, he did concede that he was aware that the schools were
closed, but he concluded rightfully so that may—not rightfully so—but he concluded that, that
should not affect his analysis or conclusions. He also said that he was not aware, however, of a
number of residential developments in the Kaūmana area and subdivisions that would utilize
Edita Street. But, he then continued that based on his experience, if the application were to be
considered by the State Land Use Commission, an updated TIAR would probably be required for
two reasons. The traffic counts were done four years ago, and the list of related projects and
background forecasts needed to be updated. So the question, then, I would have of this Planning
Commission--you have the authority to deny. You also have the authority to recommend its
approval. Why wouldn’t updated traffic be appropriate for the State Land Use Commission and
not this Commission?
Ron Thiel, the County Traffic Division. Admittedly, he concurred with the TIAR but if you go
through the transcript, one of the things he said was that having traffic counts after the
University, community college, and Kamehameha Schools ended could have made a difference
in the TIAR. And he actually even added, it actually could make it even worse.
So what’s—from the community standpoint, and if you look at the General Plan policies, the Use
Permit, Special Permit criteria, as I mentioned earlier, they all focus on the notion of community.
Now, the former Planning Director’s testimony regarding like how this project could be very
supportive you know of the community, her comment was that more and more students will
come if you build like more and more, you know like, the field of dreams type, you know, more
and more students will come and then they will reside in South Hilo because that has been the
trend. So, the question that Jeff and the community is raising is that well, who is the community
then in this particular instance. Do you define the community as Kaūmana? Or do you define
the community as being the regional South Hilo? So, at the same time there was no evidence
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provided by the applicant to show you know such as, to show the demand, you know whether it
was studies from the survey’s that they may have taken, you know, within the particular
community area, or whether there was a statement from the Department of Education to show
that yes, there is a need for additional educational facilities over and beyond the DeSilva School,
Kaūmana Elementary School, Hilo High School, and Hilo Intermediate School.
So, in summary, the community is saying that there are adverse impacts. At least 85 percent of
the residents within the Pacific Plantation Subdivision and nearly 70 percent within 500 feet of
the proposed development, they’re all saying that the impacts are going to be adverse. So, in
summary, the conclusion was that the location is not appropriate because of adverse impacts to
the community, it will definitely change the character of that area, inadequate infrastructure, and
based upon the policies-- [12:03 p.m. phone ringer went off.] My time’s up. --Is not consistent
with the General Plan so essentially then in summary for these reasons and more, as found in the
intervenor and the hearing officer’s proposed Findings of Fact and Conclusions of Law, we
believe that the request does not meet the test for a Special Permit and, thus, should be denied.
GONZALES: Commissioners, any questions for Mr. Fuke?
ONO: I have several comments, questions that he could clarify for me—
GONZALES: Use your microphone, please.
ONO: I have some questions. What was that report by Mr. Kanemoto about the ratio of students
to campus acreage of the high—he was referring to the high school?
FUKE: I really don’t know. That’s Mr. Kanemoto’s question.
ONO: Okay, I think I wanted that clarified, but okay. Would it be appropriate for Mr.
Kanemoto to clarify?
GONZALES: You want to come up for a second, Mr. Kanemoto? Any questions for Mr. Fuke?
ONO: When the developer developed this community, I guess the specific whatever the title is,
I’m not familiar with construction or development of any, any subdivision, but would the
developer plan on the infrastructure? The water, the road, is that part of the planning so that he
would anticipate the amount of traffic for the development of the subdivision and the use of
water for the subdivision? I guess what I’m looking at is when the community is fully utilized,
all of the residents’ lots are developed, would the size of the water pipe, I guess--was it 8 inch?
Would that be a flexible amount in terms of say, we can accommodate more than the fully
developed community and the road. Would that—would the road be—what would be the
estimated surplus of water I guess it would be.
FUKE: Okay, I don’t speak for the Water Department but to the best of my knowledge, the way
that I understand how their policy works, like in the subdivision that, that a, Pacific Plantation
Subdivision, for example, the Water Department would be looking at whether there was
adequate-- the source was adequate to service like, you know if they have like 100 lots, whether
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EXHIBIT F
the source is adequate to service the 100 lots in that area. And if the source is adequate, then,
they would say fine, you know, you can develop the subdivision but you would have to provide
maybe this size pipeline, you know that going up on Edita Street and Mele Manu Street or
whatever, and the cross streets or whatever, and then, that’s how the water is provided.
If you’re going to go through the rezoning process, say if that property, you know that Mele—
you know, that Pacific Plantation Subdivision was maybe zoned for 20 acres, and they wished to
have like one acre lots, then you have to go through the rezoning process through this body here.
And, at that time, the Water Department is going to evaluate to see whether there is sufficient
water or not.
It’s like in this situation here with the proposed school. Because they don’t—they need to get the
right to develop it, the Water Department said you can develop, but you know you’re going to be
constrained to only 4,200 gallons of water. In other words, seven units of water, and that’s all
you have. So, if anybody within that area today, putting the school aside, if a person has like ten
acres of land, and is currently zoned for one acre, the Water Department would say, the most we
can give you is only seven units of water. In other words, you can have seven lots. That’s based
upon the source. So, the question that we were raising, I guess the community was raising, is
that because they have only 4,200 gallons of water, and they need to have you know
considerably more than that, the question is how is the additional water going to be addressed.
ONO: Thank you.
GONZALES: Okay, if you had a question for Mr. Kanemoto, you know, we need to close the
public part of the hearing, so make it direct, and get your answer and so we can move on—did
you have a question?
HEAUKULANI: And I’ve got a couple of questions for Mr. Fuke too so—
GONZALES: --Okay—
HEAUKULANI: --but I’m okay with—
GONZALES: I’d like--if you have a question for him, let’s ask him—
ONO: Oh no, I’m sorry, yes—you state in your testimony, in your testimony yeah, kind of a
ratio of number of acres per high school campus?
KANEMOTO: Right, it’s from the educational specifications, standards for facilities, and it’s
section 203.3, site selection criteria, elementary school with a minimum of 500 enrollment. The
suggested guideline is twelve acres. For a middle school, intermediate school, with a minimum
enrollment of 600, eighteen acres. And for a high school with a minimum of a thousand student
enrollment is fifty acres. Does that answer your question?
ONO: Yes, could you go over the figures again, please?
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KANEMOTO: Okay, it’s in my testimony but for an elementary school, minimum enrollment of
500 on twelve acres; middle school and intermediate, minimum enrollment of 600 on eighteen
acres; and for a high school a minimum of a thousand enrollment, fifty acres.
ONO: Okay.
KANEMOTO: Okay?
ONO: Thank you.
GONZALES: Thank you. Charlie.
HEAUKULANI: Yeah, I actually had a question for both of you gentlemen. Since you both
have used the same phrases, I’d like to get an idea, and in fact, the question’s already asked, how
do you define community. Our rules don’t talk about community, and I’m not sure that I’m
comfortable with even limiting it to South Hilo, but am I correct that both of you gentlemen
define community as the immediate, adjacent area?
KANEMOTO: I do, yes.
FUKE: I do also because it’s like--it’s kind of tied in with some of the criteria, you know, the
guidelines because it defines community in relation to adjoining property owners as well you
know, in terms of the impact.
HEAUKULANI: Agree that our criteria does talk about the effect on surrounding properties—
FUKE: Correct, yeah.
HEAUKULANI: But, what we’re really looking at is whether this is an unusual or reasonable
use of land situated in the Agricultural District, not in any one community regardless of how you
define it. And, sir, I had a question for you. In referencing the burden of proof, you did not
mean to suggest that the community, however that’s defined or the intervenor, had no burden of
proof of persuasion in the contested case hearing?
FUKE: No, I did not.
HEAUKULANI: Okay, so you’ll agree that, while the applicant carried the initial burden of
proof, that there—once that minimum criteria is reached wherever that is—that opposing views
are required to provide at least some burden of proof or burden of persuasion?
FUKE: I don’t know. I’m not an attorney, so I’m just kind of, I won’t be able to answer that
question.
HEAUKULANI: I understand, but you or your client did make the argument. I’m just trying to
figure out where they’re coming from. I just don’t want you to leave open the idea that only the
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applicant has a burden of proof or a burden of persuasion in these proceedings. Would you agree
with that?
FUKE: I agree.
HEAUKULANI: Good, fair enough. Thank you.
GONZALES: Thank you, Mr. Fuke. Mr. Hong?
HONG: Good afternoon. I’ll be very brief. I think one of our country’s greatest presidents,
Harry S. Truman, once said if you can’t convince them, confuse them. And I submit that Mr.
Fuke and his client are trying to confuse you. He’s trying to confuse you by telling you that in
terms of the burden of proof, as Mr. Heaukulani pointed out, only and solely rests on us when
that’s not what happens. What the burden of proof basically says is, you look at the scale, and if
it tips a little in your favor, then, you’ve met the burden of proof. There are different burdens of
proof in law, clear and convincing evidence beyond a reasonable doubt, criminal court, but all it
says is that the scale tips a little bit in your favor, then, you’ve met your burden of proof. What
that also means is that if you provide testimony on a particular issue, you’ve met that burden of
proof unless they can show a countervailing testimony. Testimony that comes in opposition to
that. Then, you’ve kind of gotta weight it. Look at their credentials, who’s more credible, who’s
not more credible. In this case, with respect to water, unchallenged. No witnesses to support
that we lack water. There are no witnesses to support in terms of the Water Department’s
recommendation that it was inappropriate. We’ve met our burden of proof on the water issue.
In terms of traffic, they’re trying to confuse you. They feature certain highly selected excerpts of
Mr. Rowell’s testimony. What Mr. Thiel actually testified was with respect to UH and DOE
being out of school at the time, was that when he looked at Mr. Rowell’s numbers, and the
calculations he went through, that he estimated that Mr. Rowell was—erred to cautiously on the
conservative side, meaning he was factoring in a higher load then he needed to, to show. That
curiously was left out of the presentation.
In terms of the—Mr. Kanemoto’s testimony, and he testified this at the hearing too, these are
DOE standards. This applies to, you know, brick and mortar schools. It doesn’t apply to charter
schools. You know, it’s comparing again apples to orangutans. They don’t match. They don’t,
one—the DOE, and I know this is hard to understand, that the DOE regulations regarding
schools and sizes and the height of a toilet from the ground depending upon the school, do not
apply to a charter school, and that was very clear in terms of the testimony. So, saying to you,
that those DOE standards apply—please—put that on the record if you’re going to deny our
application. I would love that to be on the record.
In terms of the definition of community, I think Mr. Heaukulani is absolutely correct. The
General Plan does not limit the definition of community to a couple of streets within rock
throwing distance. It’s much broader than that. I live in Kaūmana. I’m part of the Kaūmana
community. I live up on Puhili in the old Wilder Subdivision. That’s part of the community. So
the question is, under the General Plan, what are you going to look at with respect to community.
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It is not those two streets. It’s too limited. He’s trying to confuse you—that they’re the only
experts or appropriate testimony in this area.
The major concern that I want to point out before I close today is we’re only asking that you hold
us to the same standard that any other person or organization comes through with respect to their
particular program—Mr. Fuke’s other clients, anybody else’s other clients that come through to
present testimony, hold us to that same standard. Are you requiring any other developer to come
in and say we—this is the exact plan down to the stone. This is the exact water usage down to
the last quart before you approve this, before you approve an application. Because if you’re not
holding us to the same standard, that’s on you. That’s not on us. So, in conclusion, we’re asking
that you reject the hearings officer’s decision. There’s a lack of evidence to support her
speculative conclusions; she misinterprets the preponderance of evidence; misapplies some of
the standards that are applicable. We’re asking you to approve our application. Thank you, Mr.
Chairman and Members of the Commission.
GONZALES: Thank you, Mr. Hong. Okay, for our Commissioners, we have a couple other
people that we haven’t had a chance to talk to, if any of you are interested. Would anybody like
to talk to Ms. Self regarding her written exceptions to the hearings officer’s findings. Okay, and
we actually have Ms. Song here today. None of us were included in the contested case hearing.
Would anybody like to speak to Ms. Song?
ONO: Mr. Chair, is it proper for me to ask Ms. Song if she has any comments about Mr. Hong’s
comments?
GONZALES: Good question. Would you like to ask her?
ONO: I would appreciate it.
HONG: Mr. Chair, may I? I’m going to—just for the record, I’m going to object, you permitted
oral argument. There’s no provision in the rule allowed for the hearings officer to either
supplement her Findings of Fact, Conclusions of Law or amend them. I think this is going
beyond the rules so just for the record, my client objects.
GONZALES: Noted. Okay, no questions for Ms. Song. Commissioners, if we’re going into
executive session, I think now would be the time. Oh wait, I’m sorry, hold that thought.
MASUNAGA: I just wanted to make a comment regarding the notice HRS 91-9 that Mr. Hong
had mentioned. We—the Planning Department did give notice to the applicant, and it was by
letter dated April 7, 2014. He was notified that regarding this tmk, regarding the request to
develop a K through 12 charter school campus with dorm facilities and related uses, and this was
the applicant, Connections New Century Public Charter School and Community Based
Education Support Services. And, the letter, in part, did inform him that it was scheduled for a
st
public hearing by the Windward Planning Commission beginning 10 a.m. on Thursday, May 1,
2014, at the County of Hawai‘i Aupuni Center Conference Room, 101 Pauahi Street, Hilo,
Hawai‘i, and that there would be comment of the application at the hearing, and any written
comments prior to the hearing. So, and, it was signed by the Planning Director, Duane Kanuha.
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EXHIBIT F
And then they had also, if you had any questions regarding this notice that they were supposed to
contact Jeff Darrow at the Planning Department, 961-8158. So, we do have a copy of that in our
file, and I just wanted to let the public and the Commissioners know about that. Thank you.
GONZALES: Okay. If we’re going into executive session, now would be the time for the
motion.
ONO: So moved.
GONZALES: A second on that?
ISHIBASHI: Second.
GONZALES: Commission to go into executive session. Motion by Commissioner Ono
seconded by Commissioner Ishibashi. All in favor?
COMMISSIONERS: Aye.
GONZALES: Anybody opposed? Reason for executive session, to consult with our Corporation
Counsel on, pursuant to Hawai‘i Revised Section 92-5(a)(4) to consult with Deputy Corporation
Counsel of issues pertaining to the Commission’s powers, duties, privileges, immunities, and
liabilities. All in favor.
COMMISSIONERS: Aye.
GONZALES: Any objections? Okay, thank you. Now we’re going to have to clear the room
and take out any recording devices with you. Thank you.
At 12:20 p.m., it was moved by Commissioner Ono and seconded by Commissioner Ishibashi
that the Commission go into executive session to consult with its attorney regarding questions
and issues pertaining to the Commission’s powers, duties, privileges, immunities, and liabilities,
pursuant to Hawai‘i Revised Statutes Section 92-5. A voice vote was taken of all Commissioners
present, and motion carried with five aye votes.
At 12:23 p.m. the Commission went into executive session. At 1:13 p.m., it was moved by
Commissioner Ishibashi and seconded by Commissioner Moses that the Commission go out of
executive session. A voice vote was taken of all Commissioners present, and motion carried with
five aye votes.
The meeting was reconvened for regular session at 1:16 p.m.
GONZALES: Okay, the Windward Planning Commission is out of executive session, and we’re
going to continue with our meeting. Right now, I’m going to ask my fellow Commissioners. I
need a motion to take care of a little housekeeping issue.
HEAUKULANI: Mr. Chair, you’re talking about the—taking care of the record?
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EXHIBIT F
GONZALES: Yes, please.
HEAUKULANI: Yeah, I think we do need to do some housekeeping. There’s been quite a bit
of testimony, evidence, and the record of the proceedings below. That’s all gotta be part of the
record so my motion would be to make part of this proceeding, the evidence, both documents
and testimonial, a part of the record of this proceeding.
ISHIBASHI: Second.
GONZALES: Any discussion Commissioners about that? Let’s take a roll call on that one, Jeff.
DARROW: With that, we’ll take the roll call. Commissioner Heaukulani?
HEAUKULANI: Aye.
DARROW: Commissioner Ishibashi?
ISHIBASHI: Aye.
DARROW: Commissioner Moses?
MOSES: Aye.
DARROW: Commissioner Ono?
ONO: Aye.
DARROW: And Mr. Chairman.
GONZALES: Aye.
DARROW: The motion passes five to zero.
GONZALES: Okay, now I’m going to ask for my fellow Commissioners if somebody can give
me a motion whether to approve or deny, and from there, we’re going to take it into discussion
amongst ourselves, I believe. And, this may take a minute or two for everybody to get in order
so bear with us.
ISHIBASHI: Brother Chair.
GONZALES: Yes sir, Mr. Ishibashi.
ISHIBASHI: I would like to make a motion in regards to this—to uphold our hearings officer’s
recommendation and submit a denial to the Land Board. I make that motion.
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EXHIBIT F
GONZALES: Motion to deny. Do I have a second?
ONO: Second.
GONZALES: A motion to deny by Commissioner Ishibashi, second by Commissioner Ono.
Okay, Commissioners, discussion. Here’s our—here’s, if you have something to say, to address
anyone, to address each other, this is our chance.
ISHIBASHI: Brother Chair.
GONZALES: Mr. Ishibashi.
ISHIBASHI: Thank you. Very contentious issue so I just make a couple, couple comments.
The glory of God is the intelligence of man. Educating our students was never an issue on this.
We all agree on that so that’s the common ground on, on this permit here. I hope as we move on
after this that we can mend the fences. There’s a lot of accusations going on between both sides,
and I still don’t think it’s gonna end any time soon, but I think that the corrections has to be
made, so I agree with our hearing officer’s findings. We decided to go out and hire a hearings
officer to make the decision and investigation for us as a commission. And, I will stand by her,
her decision, based on what is written. I’m concerned with the wastewater. The septic system,
and going into the Caves, and all of that is unclear. And we had insufficient supply of water for
the students and faculty. That’s very important. That issue I had was on the traffic, too, so—and
again, if it’s---the report is good enough for us, but not good for the Land Board, then we gotta
update that traffic studies also. So, I agree with the hearings officer’s findings on this.
GONZALES: Thank you, Chairman Ishibashi. Any other discussion? I’d like to say a couple
things. I—this is hard for all of us. Educating our children is a big job, and we appreciate it.
My son actually graduated from a charter school, and if it wasn’t for that charter school, he
probably wouldn’t have turned out like he did. He turned our pretty good. So, it’s hard either
way. I mean, we have a community here that feels impacted, we have children that need to be
taught. I just hope however this turns out, in the end, we can all work together and come up with
you know, a solution where our community is happy, our children get taught. You’re all good
people. All of you.
HEAUKULANI: I start getting uncomfortable when we start getting away from the four corners
of our governing documents. The question for me in this proceeding was whether the proposed
use is an unusual and reasonable use of the land situated within the Agricultural District. The
idea that it’s unusual isn’t disputed. I guess so, when I get down to it, my real issue was whether
this is a reasonable use. And not reasonable use of Kaūmana land or not reasonable use of South
Hilo land, but reasonable use of land in the Agricultural District. I start getting concerned when
we start adding to that phrase, and when we start making that definition mean that proposed use
has to or has to not specifically service the needs of the immediate community. I am very
troubled by that though reasonable minds can differ on this so I just think we need to be aware of
the slippery slope when we start adding to our governing rules and statutory parameters.
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GONZALES: Any other discussion, Commissioners? Okay, Mr. Darrow.
DARROW: Thank you, Mr. Chairman. Just to clarify the motion. The motion is to accept the
hearing officer’s report and to deny the Special Permit request. Correct?
ISHIBASHI: Correct.
DARROW: With that, we’ll take the roll call. Commissioner Ishibashi?
ISHIBASHI: Aye.
DARROW: Commissioner Ono?
ONO: Aye.
DARROW: Commissioner Heaukulani?
HEAUKULANI: No.
DARROW: Commissioner Moses?
MOSES: Aye.
DARROW: And Mr. Chairman.
GONZALES: Aye.
DARROW: The motion passes four to one.
GONZALES: Thank you.
The discussion ended at 1:24 p.m.
Respectfully submitted,
Sarah Y. Hata-Finley, Secretary
Windward Planning Commission
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