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HomeMy WebLinkAbout2014-07-03 Hearing Transcript - Scott Watson Amend SMA 450 WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JULY 3, 2014 Scott Watson (Amend SMA 450) A regularly advertised hearing on the application of was called to order at 11:09 a.m. in the County of Hawai‘i, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i with Chairman Myles Miyasato presiding. COMMISSIONERS PRESENT: Myles Miyasato, Charles Heaukulani, Gregory Henkel, Raylene Moses, and Stephen Ono. 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, from 9:37 a.m. to 12:25 p.m.), Melody Parker (Deputy Corporation Counsel for the Planning Director from 9:13 a.m. to 12:39 p.m.), Daryn Arai (Planning Program Manager), Jeff Darrow (Staff Planner), Maija Cottle (Staff Planner), Sarah Hata-Finley (Secretary), Kim Tanaka (Secretary), and Melissa Dacayanan (Planning Commission Support Technician). And approximately 14 people from the public in attendance. APPLICANT: SCOTT WATSON (Amend SMA 450) The applicant has submitted an application to amend Condition 11 of Special Management Area (SMA) Use Permit No. 450, which originally allowed the development of an 11-lot subdivision known today as the Pepe‘ekeō Point Subdivision. Condition 11 currently does not allow a house or other substantial structure to be built closer than 40 feet from the top of the sea cliff fronting the ocean. The amendment request is to change this building setback point of reference from the top of the sea cliff to the March 4, 2010 certified shoreline which is located makai, or seaward, of the sea cliff, and applicable to the applicant’s lot only (Lot 23). The subject property (Lot 23) is located at the end of Sugar Mill Road, just east of the Sugar Mill Road/Beach Road intersection, Pepe‘ekeō Point Subdivision, South Hilo, Hawai‘i, TMK: 2-8-008:151. NOTE: At 9:29 a.m., it was moved by Commissioner Moses and seconded by Commissioner Ono to take testimony out of order regarding Item No. 5 (Scott Watson, Amend SMA 450). The motion was unanimously carried by a voice vote of all Commissioners in attendance. The following is the testimony of Gary Olympia. MIYASATO: Commissioners, if there are no objections, I would like to take testimony out of order for Applicant No. 5, Scott Watson. This testifier needs to catch a plane back to the mainland, so if there are no objections. MASUNAGA: You need a motion to take that back up. MIYASATO: Can I have a motion to have testimony, this one testifier out of order? 1 EXHIBIT E MOSES: I make a motion. MIYASATO: Do I have a second? ONO: Second. MIYASATO: All in favor? COMMISSIONERS: Aye. MIYASATO: Any opposed? Motion passes. OLYMPIA: Good morning-- MIYASATO: Could you raise your right hand, please? Do you swear or affirm to tell the truth on this matter now before the Hawai‘i County Planning Commission? OLYMPIA: Yes. MIYASATO: State your name and residence. OLYMPIA: Gary Olympia. I live in San Jose, California. MIYASATO: Go ahead. OLYMPIA: Thank you for allowing me to be taken out of order. I have five adult children and 15 grandkids wondering why I came to Hawai‘i without bringing them from their vacation. I will—okay? [Speakers were giving feedback.] Okay, one letter that I read that was submitted by Ed Johnston suggests, and we agree, that the Commission between now and when this matter is going to be continue to the I believe the August meeting take a view of the site so that you can see and understand exactly what is being requested on the ground. We would welcome that and Scott would be there with Daryn and whoever else wanted to be there with you to explain each of these four matters that I will address, and I will try to be focused and clear here, and slow enough where, hopefully, you can follow because there’s a big packet of information, and I don’t expect that you’ve read every page. And there’s a couple things that are being added to that for your assistance. The four issues, the first of which is, is actually pretty simple, and we don’t believe there’s any controversy with regard to that, and that is, after the Building Permit was issued, we discovered that the original survey for the subdivision that created Lot 23 and the other 11 lots was, was in error. And we obtained an independent resurveying so that the southern, excuse me, so that the northern and westerly boundaries could be adjusted to be correct. A proper application was filed with the Planning Department, has been reviewed. All of the necessary data along with that has been filed with the Department, and the request was approved and extended to by the next door Lot 24 owner. And all those documents have been filed and in a document that I’ll refer to in a 2 EXHIBIT E minute, they will, the Department has indicated that they are agreeable to that request to correction of the northern and the westerly boundaries. That, as I will refer to in a minute, assists in providing a better and usable public access easement to the ocean front. The Department is waiting to approve that when the determination is made relative to the next two issues that I’m going to be discussing. The first of those is the fact that the existing public access easement that, created by the subdivision map back in 2002 to 2006, created a public access easement that is really unusable. It is very steep, short area that goes through a wooded area to a cliff, and doesn’t give access back at the ocean frontage so that a decent public access would exist. We have proposed in a meeting with the Planning Department last fall that a resolution of the two issues—one, the setback issue, and the unusable public access issue—be a solution to the problem that exists. We are willing to give to the County a public access that is much longer, much bigger and usable, that goes directly from Sugar Mill Road, down to the ocean and in front of property that is safe, open, very usable, as opposed to this unusable existing public access easement. We are requesting that the issue that was created after our Building Permit was issued and the foundation was done, that there was a conflict with a Settlement Agreement that had been entered into with Continental Pacific and the County which we knew nothing about, never been provided a copy. It wasn’t referenced in any title insurance policy. It wasn’t referenced in any preliminary report of title. It wasn’t recorded. It wasn’t part of the CC&R’s. We are unaware of this, and in that Settlement Agreement which occurred when the subdivision was created, there was a Condition 11. And Condition 11 established a setback relative to the shoreline which was different than, bigger than what the State law provided. We designed the house. We created the location, not intending to violate anything. We were following, we thought, State law, and we knew nothing about this Settlement Agreement that had been entered years before. We have been discussing that with the Planning Department, including a very lengthy discussion yesterday. Chris Yuen was kind enough to come because he was the Director at the time to share his thoughts with regard to what we were requesting to be done. And, the process in which both the relocation, resubdivision, the northern and westerly boundaries, the issue of the providing a better public access and the amendment of Condition 11 only for Lot 23 is fully discussed in an Agreement that was entered with the County, and we have provided a copy of that for each of you which addresses these issues in a very favorable way—that this improves the situation, creates a win-win situation for the public, number one, the County, and us. That is an Agreement that was signed by the then Director, BJ Todd, our attorney, and approved by Amy Self. That inadvertently or for whatever reason, wasn’t attached to your materials so we, with the consent of Daryn, we’ve provided a copy to be given to each of you. Don’t expect you’re gonna read that 6 or 7 pages now, but it, it focuses on what I’ve just said to you. The relocation, resubdivision, north and westerly boundaries, the changing or substituting a very usable, better public access, and the resolution of this setback issue which was never intended as a violation, but we are into construction, and there is a civil engineer, structural engineer report to the County which is included in their materials which indicates where we have located the house. It’s safe. There is not an issue of safety or danger, and outside of our property, there is this public access that goes to the shoreline which serves the public interest. 3 EXHIBIT E A presentation was made by the Planning Department to the public last Fall where anybody was allowed to comment and what have you, and you will see in the Background Report that you have that the response of the community was favorable to what we were trying to accomplish. Each of these matters will be clearly shown to you where you can identify and understand what we are asking and how it will serve the public interest if you take the view which we encourage you to do as Mr. Johnson’s letter requested. The last matter which hopefully will be resolved by the time we come back deals with a remnant in the middle of our Lot 23, that was purchased by the Aldersons. We purchased it from the Aldersons. Nowhere in our deeds, nowhere in the title policies, nowhere in the CC&R’s, is there any reference to a remnant. And the remnant is referenced as a, approximately a .4-acre piece in the middle of our lot. None of the advertising materials referenced this. None of the documents indicate that such a remnant exists. It was helpful yesterday afternoon to hear Chris Yuen indicate that that’s really a misnomer. There’s no remnant. The name shouldn’t even have been used. It doesn’t have a tax identification number. We’ve been paying the taxes on all, all of Lot 23. But, it is, it was a line that has been really misinterpreted as creating some property right, and there is no property right. So, it’s our hope between now and when we come back that, that issue will be resolved, but that’s—I’m just referencing it so you know because when you go out to the site, they’ll show you what we’re talking about, this piece right in the middle of our property, right where our house is built. Was never reserved by Continental Pacific in any document whatsoever. Hopefully, that will be resolved by the time we come back. That concludes my remarks, and I wanted just to again thank you for letting me go out of turn so I can get back to State-side. I’ll be happy to answer any questions that you may have. Scott will be here for the actual presentation at the time you call it, and you can ask him any questions as well. You have this agreement that was signed by the County that, that identifies what I’ve discussed and puts in a proper light what we’re trying to accomplish. We didn’t know about a different setback. We never knew about the Settlement Agreement. Nobody contests that. We never had it. No intention to violate anything in connection with the setback, but what exists is safe, as reflected by the report of the structural and civil engineer. Thank you very much folks. MIYASATO: Thank you. Any questions, Commissioners? KANUHA: Mr. Chairman, I have one question. MIYASATO: Go ahead. KANUHA: Gary, that Settlement Agreement that you just provided to the council, we have that on file but on the advice from our counsel, they considered that proprietary so that’s why it was not distributed to the Commission, but since you raised that, you know, we’re prepared to put that on the record and discuss that. But my one question to you—is there anything in that Agreement, is there anything in that Agreement which refers to or binds this Commission to act in any particular way? 4 EXHIBIT E OLYMPIA: No— KANUHA: Okay, so, it’s got nothing to do with the Commission itself. OLYMPIA: What it does is set out the—what it does is set out the process in which we both followed. The discussion of resolution, some things are actually accepted by the Department and stated in that Agreement which I assume is a bilateral, binding Agreement, but with regard to the two major, well actually three major issues that identified the relocation resubdivision although they’ve indicated they accept that, and they just wanted it at the same time resolved as this other matter, that’s stated in there, and that process that it comes to the Commission. Secondly, with regard to the creation of a new public access easement, same thing. It is favorable. They feel it’s a win-win situation as we do. It creates something that is a win for the public, and it was suggested by us. That is stated in there, and ultimately can come to the Commission for determination as you just said. And the last thing with regard to the setback with regard to what is the definition of shoreline—is it the State or is it that Settlement Agreement? Same thing. Establishes process. You weren’t there yesterday, Director, but Mr. Chris Yuen was there, and he is in favor as BJ was. And you were there at the meeting with BJ as I recall last Fall, but short answer, yes, it comes to the Commission. Commission isn’t bound— KANUHA: I just wanted to make, I just wanted to make that clear that, that Settlement Agreement does not in any way bind the Commission’s actions on these matters, correct? OLYMPIA: On these three matters, no, it does not. Hopefully, it’s helpful, however. MIYASATO: Commissioner Ono. ONO: Am I to understand that there are further discussions with the Department so that we will be seeing your presence here again? OLYMPIA: Yes, yes— ARAI: Mic— OLYMPIA: --What we understand is their question that— MIYASATO: Excuse me, could you use the microphone? OLYMPIA: Sorry, it go over to the next hearing so that there is further discussion with regard to this remnant issue misnomer, and then a recommendation would come to the Commission and, we would have a final hearing or another hearing where a determination can be made. That’s my understanding. Is that correct, Daryn? Yeah. ONO: Mr. Chair, I’m just wondering whether this, the whole discussion is, can be deferred because the issues that have not really been settled. I’m just wondering— 5 EXHIBIT E MIYASATO: We can discuss that when we bring that matter up on the agenda. We just want to address this testifier, you know. Any other questions, Commissioners? Commissioner Henkel. HENKEL: Ms. Kimata had a very relevant comment earlier about you know the trend of building what you want and then retroactively asking for permission. I’m alarmed that it seems like the last several meetings we’ve had, we’ve been dealing with this what seems to be the trend. I would be agreeable to a site visit. I think that would help me see what is actually going on so, that’s all I’m going to say. MIYASATO: Anything further, Commissioners? No? Thank you. OLYMPIA: And that site visit can be arranged through Daryn and the Commission. MIYASATO: Okay, thank you. OLYMPIA: Thank you very much again for letting me speak. The testimony of Mr. Olympia ended at 9:46 a.m. Regular Session at 11:09 a.m. MIYASATO: Okay, Item 5, Scott Watson. Staff? COTTLE: Thank you, Mr. Chair. The next item on the agenda is a request to amend a Special Management Area Use Permit. The Applicant is Scott Watson. The subject property is located in the South Hilo District. It’s shown on the slide and outlined in red. And this is the Pepe‘ekeō Point area. So, just to orient the Commissioners, you have the highway running in a north-south direction on the left side of the slide. And then we have Sugar Mill Road running off towards the sea in a makai direction. The area shown here in light purple is the Old Pepe‘ekeō Mill, the site of the proposed Hu Honua power plant. So, the subject property is located just to the northeast of the plant, and you can see there is a jog in Sugar Mill Road. Once it turns towards the north, it’s called Beach Road. This is a close up view of the property. It is zoned Single-Family Residential which is shown in the light yellow and kind of mustard color. The Mill is zoned Heavy Industrial which is shown in the purple, and the lands more mauka of Pepe‘ekeō Point are zoned Agricultural. This is the General Plan Designation Map for the area. You can see the property is designated Open along the shoreline, which is shown in the dark green, and Low Density Urban which allows Single-Family Residential uses. That’s the mustard color. Just for some background, Special Management Area Permit 450 was issued to Continental Pacific in 2004. This was to allow the development of an 11-lot subdivision known as the Pepe‘ekeō Point Subdivision. Condition 11 of the permit states in part that no house or other substantial structure shall be built closer to the ocean than 40 feet from the top of the sea cliff. 6 EXHIBIT E This condition shall apply even if the shoreline is later certified at a location makai of the top of the sea cliff. So, the Applicant is requesting to amend Condition No. 11 as it applies to his lot, Lot 23, and in order to change the building setback point of reference from the top of the sea cliff th to the March 4, 2010 certified shoreline. And that certified shoreline is located more makai or seaward of the sea cliff. This is a very long condition, but this is the proposed amendment, and I’ll read it slowly. The Applicant is proposing Condition 11 be amended to state for Lot 23 of the subdivision, no house or other substantial structure shall be built closer than 40 feet from the shoreline shown on the 2010 shoreline survey. This was certified by the Board of Land and Natural Resources. For the remaining ten lots of the subdivision, no house or other substantial structure shall be built closer to the ocean than 40 feet from the top of the sea cliff as shown on the December 2002 shoreline survey map which was also certified by the Board of Land and Natural Resources. This condition shall apply even if the shoreline is later certified at a location makai of the top of the cliff. The Applicant’s reasons for the proposed amendment is that he is requesting the amendment in order to complete a 7,000 square foot, 2-story single-family dwelling. He’d like to build that dwelling closer to the sea than is currently permissible. And—another reason is that the approval of this amendment would remedy the Applicant’s building setback and grading and grubbing violations within the shoreline setback area. And, lastly, upon approval of the request, the Applicant has agreed to grant a realigned public access easement to the County. The realigned easement would be located behind or north of the dwelling, and would allow the public to more easily access the shoreline than the current public access easement. And I also just--just want to make one slight correction to the statement that Mr. Olympia made earlier. He kept repeating that the current access is unusable, and it’s not unusable, it’s just not as easy to use as the proposed realigned access. And that will become clear as we look at the pictures. So, this is a map of the property, and if you just follow the red cursor, I’m going to show you where the 2002 certified shoreline was located. So, it started here at the north end of the property, and headed south, jogs in a little bit, and at this point, the certified shoreline goes quite a bit inland north along the top of the sea cliff or the top of the pali right to here. In 2010, the Applicant had the shoreline recertified by the State, and from here to here, the shoreline stayed the same. At this point, the shoreline changed, and it came out to here, so it moved more seaward then the 2002 survey. And, there’s a lot of information on this map, that if you just bear with me, I want to point out to you what the lines mean, so you may want to look at your exhibit in your Background Report. It is Exhibit, I believe its Exhibit 4. And, we will start with again the 2002 certified shoreline is the solid pink line which goes from here—oh boy, even I’m getting confused, hold on just a second here—okay, from here, south along in this area. Then it jogs northward around the curve up towards the historic remnant and down to this point. So, the 40-foot shoreline setback that’s referred to in Condition 11 is identified on this map as a light blue dashed line, and I’m going to outline that for you. Okay, so it starts generally here, goes along here, and then it jogs up here, and then here. Okay? So, that is the current shoreline setback established by Condition 11. 7 EXHIBIT E Now, in 2010, the Applicant had the shoreline recertified, and that shoreline starts here, extends downward, and then follows along this area here. It’s shown as a solid green line on Exhibit 4. So, if the Planning Commission were to approve this amendment request, the new 40-foot shoreline setback from the 2010 certified shoreline would be—I will show you where it’s located—it’s identified as a light, I’m sorry, it’s identified as a red dash on Exhibit 4, so again we start here, extend, it’s actually not really identified in this area, but then it picks up again here and goes along here. So, you can see that the shoreline setback currently goes through the location of where Mr. Watson is proposing to build his house. This is his proposed house. This is the proposed tennis court, and the proposed pool and his driveway. I also want to just show you the existing public access easement as well as his proposed public access easement. The existing easement is identified on Exhibit 4 in a dark blue dashed line. So, it starts here at the road, it extends downward. And I should say it’s the area between the dark blue line and the solid pink line on Exhibit 4. So, it starts here, goes down to here, and then up here. And the new proposed public access easement starts again at the road. It’s shown in the dark pink dashed line. It extends down Mr. Watson’s driveway towards the sea and then it curves around down to the sea in this direction. So, it moves it from the south side of the property to the north side. This is an aerial view of the property. This image was taken from Google Earth, and it was, it was from January of 2013, so it is old. The road is located off to the top left side of the slide. This is the general location of Mr. Watson’s driveway which curves around to the house. The house has not been constructed. There are, there is rebar in the ground, and forms for pouring concrete, but the concrete has not been poured yet. But, this gives you a general idea of the location of where he is proposing his house. These little dots here at the bottom are rebar columns that will be columns for the lanai. So, you can see the general topography of the area. And, this is a view of the top of the sea cliff, so let’s see. Just to orient the Commission. Sugar Mill Road’s in the—Sugar Mill Road is in the background behind these trees. Mr. Watson’s driveway comes off in this direction off of the slide. This view is taken right about in this location looking down in this direction towards the sea. You’ll see the sea on one side. You’ll see this palm tree on another side. So, here’s the sea. Here’s the palm tree. These are the concrete, I’m sorry, the rebar forms for the lanai pillars. This is another view looking a little bit further up towards the proposed house, so you can see the top of the pali, the top of the sea cliff that was identified in the 2002 certified shoreline survey. This is a view looking, standing in the same spot, looking in the opposite direction looking east. And then this is a view standing at this location looking straight down, straight south towards the sea. And, I have a few things to add. We have received some correspondences. I do want to say that the Director is not making a recommendation at this time. We have received a correspondence nd that we’ve given to you this morning from Deborah Chang. This is a letter dated July 2. It’s a st two-page letter. You should also have an email from Chris Yuen dated July 1. That’s one page. And, you should have a document, a Decision & Order, from the Third Circuit Court, and 8 EXHIBIT E then you should also have a copy of the Agreement between the County and Mr. Watson that Gary Olympia provided to you. Are there any questions? ONO: Could you go back to the pictures. I need to have a visual. The previous one. The one that shows, yeah. What is his proposal now? To move his, you see where the rebars are? COTTLE: Okay. ONO: To move it towards the ocean or further out? I don’t quite— COTTLE: If the Commission were to approve this amendment, it would allow Mr. Watson to build his house exactly how he lays it out here. ONO: Where the rebars are— COTTLE: So, he would not have to move anything. If the Commission denies the request, he would have to move his house—okay, so this is the shoreline setback line currently established in Condition 11. If the, if the Commission denies his request, he would have to move his house mauka of that line. MIYASATO: Any further questions for staff? Thank you, Maija. Will the Applicant please come forward? WATSON: Good morning. MIYASATO: Good morning. Could you please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Hawai ‘i County Planning Commission? WATSON: Yes. MIYASATO: State your name and your residence, please. WATSON: Scott Watson. My address is 27-102 Lali Street in Hilo. This is all about inaccurate survey when we purchased the property. Really, just the—yes, the colored proposal to Pepe‘ekeō community (addressing Maija Cottle). This map, this is made by the Planning Department, and it was presented at a meeting in Pepe‘ekeō to the community. It shows that—the new, improved shoreline access versus—may I stand up? This is the existing access right now, and it leads to this, what they’re calling the sea cliff. When we first looked at the property to purchase it, I noticed that all of the property lines were done incorrectly and they don’t work, so we’ve been forced to reconsolidate and resubdivide the frontage here to make it work with these old historical structures that were all here for a 130 years. This is a pier at the bottom of a ramp that was made by the mill people when they built all these buildings down here, so I’ve been forced to avoid the historical structures, but the point I want to make is the shoreline, as determined by the State, is out here, and this is the sea cliff. This is another 60 to 85 feet away is this so-called pali that we’re talking 9 EXHIBIT E about. I have a topographic survey of this that was done before anything took place out here, and shows that this is not the sea cliff. The State doesn’t recognize it as the shoreline except for an old 2002 survey. Now, there was never a survey done when this was created. It was a large subdivision, and this line was created from an aerial photograph. There were no surveys done to certify the shoreline. The point I want to make first is this line that they say is the shoreline goes right through the middle of a building that’s been there for a 130 years. This was all industrial uses for the sugar cane process, and next door to the power plant. All I’m asking is that we make this an accurate survey. We have to change all four sides, well, not this side of the property. This is all fine and stayed the same always, but this was never a sea cliff or shoreline, especially through the middle of a building. So, to say that they surveyed this and certified it is incorrect. The BLNR wouldn’t certify this through the middle of a building if they knew they were there. Now, these buildings are only on this picture from Google Earth. They were never on a map until we had the map surveyed, and they placed the structures, the historical structures on there. So, you can clearly see that this boundary line, or what they’re calling a shoreline, is up in the middle of the building. It ignores the fact that there’s a flume here. The shoreline is actually down here where the State says it is, and all I’m asking is accuracy. That we go along with where the accurate true shoreline is, and the other modifications are all already been submitted since 2009, so I’ve been working on this for five years to accommodate all the historical structures, and to place the house there, I’ve met with Planning Department a probably a hundred times over this. There’s only one place to put it. If this is a shoreline, and that setback is back to here, there is no place on the property to build a house. So, I’ve tried to make everyone happy and work with all the access issues so we granted more than half of the property for public access. Makes it a superior public access, too. The old one that does not work comes to the edge of this hill— MIYASATO: Could you please use the mic? WATSON: It’s pinched off, excuse me, it’s pinched off right here, and there is no more access, so there is no way to the shoreline. This creates a way to the shoreline. If the shoreline is accepted, then we would also give the County an easement to use the rest of the ramp down to the pier that’s been here for a 130 years. So, in short, (thank you)—Gary and I are seeking amendment of the SMA permit that allowed a subdivision to be created of these lots next to the Old Mill. We have had setbacks and shoreline access issues arise during our development of a single-family residence that was permitted on the property in 2012. They let me start building then they were made aware of Condition 11. Building--Planning Department wasn’t aware of it, we weren’t aware of it until we had started construction. They stopped us, and here we are. I want, I want to point out that the Agreement would use the actual shoreline from which to measure the required setbacks. There are three points that I would like to emphasize. This amendment will correct the inaccuracies in the placement of the shoreline. Two, the amendment will bring, excuse me, the amendment will benefit the public by correcting an error and now there will be a superior public access to the shoreline that doesn’t exist now. The third point, this amendment will resolve an on-going legal dispute and court fight about legal interpretations of the correct shoreline and whether the County is properly enforcing State law. 10 EXHIBIT E So, to conclude, I’m not asking for anything special. I’m asking for accuracy. That we go with surveyable documents. The setbacks, I’ve never argued the 40-foot setback, but I would like to have the shoreline recognized where the true shoreline is, and then this creates a beautiful public access that everyone has been using for two years. I might add that we have planted all of this with grass, maintained it for the public, so now the public parks on our easement up here, which is our property, walks along the front on grass to the driveway where they walk down a paved walkway all the way to the shoreline. It’s—the County has agreed with all of this in their Agreement, and if you would please, take a, take a look at that when you have a chance. Everyone is in agreement with this from Chris Yuen to BJ to Amy Self. This is a better thing for everyone. It’s a win-win. It allows me to continue building my house where it is, and the Building Department has inspected up to this point and allowed me to continue, so all I’m asking is for accuracy, nothing special. To be treated like everyone else. And the public benefits in the whole deal. Thank you. MIYASATO: Are there any questions for the Applicant? HEAUKULANI: You are asking for something special. Aren’t you asking to continue to build in violation of the existing agreement? I mean, this is the third case this morning that I’ve had to sit here and listen to about people that violate the terms and agreements that are issued from this Department, and then come back in to retroactively ask us to correct their problem. So, I disagree with you, sir, that you have—aren’t asking for anything special. WATSON: Again, the shoreline that is conveyed on these plans isn’t the shoreline— HEAUKULANI: Is it your position then that Judge Hara was incorrect when he cited to you 205-A-45a that expressly grants the County the authority to alter the setback distance? WATSON: This is—I understand what the Judge ruled, but again, this was all, this all came up later. The Planning Department wasn’t even aware of this Condition 11 either until half way through the foundation work, then they stopped us when it became an issue and made us aware of it also. This is the point Mr. Olympia made, that no one knew about this boundary line being the shoreline until it was discovered after they’ve given me a Building Permit and approved all the locations of the structures and the historical data that we had to mitigate. Again, I’ve had to work around all of these existing structures. There’s very little room there left. If the true shoreline is not recognized, there is no legal access to that area at all, at this point— HEAUKULANI: Well, I would disagree on that, but that’s a completely different subject. So, are you saying that there was some type of non-disclosure of Condition 11? WATSON: Yes, we were never made aware of that. HEAUKULANI: Made aware of that. Who was going to make aware of that? WATSON: Nothing was ever filed on Condition 11. It’s, it was discovered by the Planning Department after we started building. We stopped building and we’ve been trying to work this out ever since. The shoreline that is on here, again, isn’t a sea cliff. The deed describes the 11 EXHIBIT E property as the boundary being the sea cliff, and the shore, and the ocean is in front of that. It doesn’t describe any remnant parcel in front of it. HEAUKULANI: We’re not talking about remnant parcels. We’re gonna be here all afternoon if we don’t stay focused. But doesn’t Condition 11 itself expressly anticipate the possibility that the shoreline might be, subsequently be determined to be more makai of the sea cliff? WATSON: Again, the way that it’s worded, the sea cliff can’t go through a building that’s been there for a 130 years, so I, our argument is none of this was accurately done, and all we’re asking for is it to be done accurately like every project— HEAUKULANI: Okay, maybe my question wasn’t as clear as it could have been. It is correct, though, that Condition No. 11 of the SMA Permit No. 450 did anticipate the possibility that later certifications of the shoreline might be more makai of the top of the cliff. WATSON: I don’t understand your question. HEAUKULANI: All right. I’m—it’s likely not your fault. It’s likely a bad question. The permit itself says a condition shall apply even if the shoreline is later certified at a location makai of the top of the cliff. Correct? WATSON: Understood. HEAUKULANI: Okay, and what actually happened is that a later certification indicated that, at least at that time, the shoreline was more makai of the top of the cliff. Correct? WATSON: Yes sir. HEAUKULANI: All right, and with all of that in place, you constructed within the existing setback. WATSON: No sir. HEAUKULANI: Okay, explain that to me. WATSON: Again, the building never encroached on this boundary line. The setback is determined from the shoreline, not from what the Director had called originally— HEAUKULANI: I’m going to disagree with you on that one, sir. In this case, the setback is determined by Condition 11 of the SMA permit. WATSON: When we pulled the permit, the Planning Department determined this area in front of that boundary line to be a remnant parcel that didn’t belong to us. We disagreed with that. That’s not what we purchased, and the prior owners purchased. The inaccuracy of the survey shows that none of this was ever surveyed properly, and all we did was survey it as the Planning Department asked that we do at the beginning of any building process. So, as we recertified it, 12 EXHIBIT E we discovered that, that line was grossly inaccurate going up and through the buildings, and isn’t a sea cliff whatsoever. Chris Yuen has been out there and walked the site. Daryn, Maija, most everybody in the Planning has been out there to look it, and I encourage all of you to come look at it also. It was Continental’s decision to avoid expenses. They did not do any mitigation on any of these buildings or even disclosed they are sitting there when they did the survey. So, they got out of any of the mitigation work which was dumped in our lap to do, which was about $50,000 worth of mitigation on the structures. The structure of the top then, if I’m to believe this is all accurate, is half in the ocean. I was also made by the State to mitigate that building and the flume below it which is on this map, which they are calling an old railroad bridge. All of this is on the shoreline clearly if you go out and look at it in person. Again, Continental avoided a lot of money in surveying and certifying that shoreline so they went with an aerial photograph and determined that, that would be the shoreline. They did what they needed to do get the Planning Department to approve their subdivision. Again, this was something that we thought we could correct because it was not accurate and every ocean front project requires certification of the shoreline, so now there is some accuracy in the drawing, and the Planning Department all agree that what we’re proposing here is a benefit to the public for access, and allows us to go ahead with a building that they permitted us to build and approve in 2012. So, again, all I’m asking for is everyone to take a look at it, and look at the surveys and look for some accuracy here--because they had to change three of the four property lines were done incorrectly at the start. Thank you. MIYASATO: Director. KANUHA: Mr. Chairman, I had a question. Mr. Watson, in your presentation, you said you had three, three objectives you want to accomplish, right? WATSON: Yes. KANUHA: Can you repeat the third one for us again? WATSON: The third one. The amendment, if we amend this— ARAI: Microphone— WATSON: Oh, excuse me, sorry Daryn. The amendment will resolve an ongoing legal dispute and court fight about legal interpretations of the correct shoreline and whether the County is property enforcing State law. That was the point three. KANUHA: But hasn’t that been partially determined by Judge Hara’s dismissal of your request for summary judgment or partial summary judgment? WATSON: I don’t know that I can answer that question correctly. Respectfully, and this is going to be continued, and I would rather that Gary did most of the speaking. I’m a builder, and this isn’t my forte. I’m in here trying to defend myself from activists wanting access to engineers wanting particular things from the County wanting everything that’s on their, their list. So, again, we’ve tried to accommodate everyone in the development of this. We took an old site that was commercially abandoned, and all the mess was left there, which we cleaned up. We 13 EXHIBIT E created an access that now benefits the public to get down to that shoreline where they couldn’t get before. KANUHA: I think all I’m suggesting is that if you proceed on the substance of what you’re trying to accomplish rather than revisit the argument that the, the previous entitlements that was secured for the property before you got it, and all the conditions with it, that those are valid or you know appear to be valid based on the covenants of the Settlement Agreement. You folks proceeded to take that to the court that’s still pending in the court. But in the meantime, you request that the court to render a determination, a summary judgment or partial summary judgment and that was denied so all I’m saying is that if you stick to the benefits of what you think this new proposal would be rather than you know revisiting the legality of what had transpired before, I think it might, you know, get to the real point that we’re trying to get to. WATSON: I think, I think the Judge answered in such a way. He also knew that Continental Pacific’s going to come back which they have since we applied for this, and they want the same treatment on the rest of the subdivision, and BJ made it very clear to us that this was the only lot that they would consider looking at. That they won’t touch any of the rest of it. This one benefits the public by doing this and creates the inaccuracies, that’s all. KANUHA: So you’re representing to the Commission that you’re also representing Continental Pacific? WATSON: No sir. I’m just telling you the events that are occurring as we meet with the Planning Department. That they’re concern was if we do amend it for me, they want it amended for the rest of the lots— KANUHA: Well, I think when they, if they participate in this, and put that on the record, then the Commission can consider that. WATSON: All I was trying to do is point BJ’s position on the thing when she signed the Agreement—it’s only for you, Scott, it’s not for the rest of these lots. They don’t benefit. The Planning Department doesn’t benefit by giving Continental any more room. This one creates a beautiful public access to the ocean—all the way to the water, sir. MIYASATO: I’d just like to make a point that this is agendized, and we can’t take action on this amendment today. WATSON: I understand. MIYASATO: Yeah, okay. Are there any further questions for the Applicant? HEAUKULANI: Quickly. Sir, do you agree that the County and the landowner can agree to establish a setback that’s greater than 40 feet from wherever the shoreline is as part of the subdivision approval process? WATSON: I understand that’s the County’s— 14 EXHIBIT E ARAI: Microphone— HEAUKULANI: My question is not whether you, it’s the County’s position. I’m asking you. Do you agree that as part of a subdivision process, the County and the landowner can agree to establish the setback at a distance greater than 40 feet from the shoreline? WATSON: They can do that, sir, but the law states that the BLNR determines the shoreline, and a certification has to be within twelve months of the application, and that the setback as the law is 40 feet. And we followed the law here, and we’re asking that everyone follow the law here. That’s all. HEAUKULANI: Followed the law, but you didn’t follow the permit, right? WATSON: Again, none of that was disclosed to us after, until after we had a permit and started construction. HEAUKULANI: I’d like to explore that a little bit. What do you mean disclosed? You didn’t have access to the permit itself? WATSON: The Planning Department didn’t even know about it until we started construction and it was brought up. HEAUKULANI: Okay, well, again, we’re gonna be here all afternoon if the, if our questions and answers aren’t connecting up. My question is did you have a copy of the permit itself at the time when you decided to construct in the location that you did. WATSON: Which permit? I have a Building Permit based on our application. HEAUKULANI: I’m talking about Condition 11. WATSON: Condition 11. No, I did not have any, any, any idea that even existed until the Planning Department discovered it and brought it to our attention. Neither did the prior owner that we purchased the property from. So, none of it was disclosed to any of us until after construction had started and a permit was in place. Nothing was done until there was a permit in place. And, at that time, sir, BJ had when she gave me the permit for the house, she was calling that a side yard, not a, because it isn’t the ocean front, she called it a side yard and gave it a 20- foot setback on my permit. The house is 19 feet from this supposed boundary line or 2002 shoreline. HEAUKULANI: I’m sorry, I’m still trying to get my head wrapped around the idea of undertaking construction of this magnitude without ever having in your hands the Special Management Area Use Permit No. 450. Is that, is that what was going on here? WATSON: No one was aware of it. 15 EXHIBIT E HEAUKULANI: Okay, I’m—there’s a document called Special Management Area Use Permit No. 450. WATSON: I understand that. HEAUKULANI: All right. Did—are you saying that no one had a copy of it? WATSON: No. HEAUKULANI: You undertook this construction without ever physically seeing the permit itself. WATSON: Yes sir. HEAUKULANI: All right— WATSON: And the Planning Department issued a permit in the same respect. They didn’t know about it either until further research. When it was brought to our attention, we stopped and we continually been trying to work this out for the past 18 months since the permit, or since we were issued a stop work order. KANUHA: Mr. Chairman? MIYASATO: Director. KANUHA: Gary [sic], you know, I just had one follow up based on something you just said, and I think you’re argument has you know kind of been—I’m trying to get past that in terms of you know the shoreline is the shoreline. And, you’re basing this on a certified shoreline—what, th dated March 4 2010? WATSON: Yes sir. KANUHA: So, if you just said, you know, if you just stated that a shoreline survey is only good for a year, and you are correct, it’s only good for a year, then did you make any of these applications by March 4, 2011? WATSON: Yes, yes sir. The application for consolidation and resubdivision was submitted in 2009. The Building Permit after that we applied for a—or excuse me, we had the surveyor come out and shoot the shoreline, that BLNR came and inspected it a week later, determined that was the new shoreline, sent us the map, the approved map. That established the setback from the shoreline. Forty foot setback is, we agree with that, and always have. It’s just the line that they want us to believe is the shoreline, and you saw from the pictures, that line, that pali as they’re calling it, is actually a ramp that’s made by the Sugar Mill when they developed all of the property, and they got everything on shore from that landing they created. So, that is not a sea cliff. That is a man made ramp that they cut down and built a pier at the bottom of that is in all 16 EXHIBIT E of those pictures. You can see that slope in front of the house is about a 45-degree angle. It’s actually not a sea cliff. KANUHA: All I asked was whether or not you submitted anything after that shoreline survey and within the one year. WATSON: We submitted it, yes, before and after, depending on which application you’re talking about. KANUHA: Well, that’s what I’m asking you. What did you submit? WATSON: Two thousand nine was application for consolidation/resubdivision to correct the inaccuracies of the west and north property line. Survey was done on the shoreline after that so we could go to Planning Department with a certified shoreline that’s required at any permit application. KANUHA: So the subdivision was submitted before you got the shoreline certification. WATSON: Yes sir. And that was to create, the Planning Department, they all saw that the old line was too close to the building. It was only seven feet away from one of the historical structures, so we had asked Continental Pacific to, and the County to reconsolidate, recertify the northern and the western two property lines so they were accurate. And they also allowed the setbacks required by the County. So, they made, we applied for it, but they ignored that and didn’t touch it. The certified shoreline was submitted right after I received it in March, and we applied for our Building Permit at that point in time. KANUHA: And your property includes this area that this 2010 certified shoreline includes? WATSON: Yes sir, our argument is what we purchased was oceanfront property as represented by Continental Pacific as sold, and all of their maps show it as the shoreline with no remnant there. The remnant is on a plat map that we were, was shown by the Planning Department later. After talking with Chris Yuen yesterday, his interpretation of it was that these remnant parcels, these are the only remnant parcels that were ever created and they weren’t ever meant to be a remnant parcel, was done for safety reasons—for high surf and the County wanted to be able to make it a safe setback, so they were determining where it would be on that original 2002 survey that this SMA 450 is addressing. This particular situation is different than the rest of the subdivision. This isn’t a lower bench. This is a ramp down to a pier that’s been there forever. KANUHA: All I was asking is whether or not the property you purchased included this additional area based on the 2010 survey. WATSON: Yes sir. MIYASATO: Commissioners, any further questions? Thank you. WATSON: Thank you. 17 EXHIBIT E MIYASATO: We have testifiers. Would you please come up? John Dalton and Virginia Alderson. Virginia Alderson, would you please come up? ALDERSON (from audience): At the same time? MIYASATO: Yes. Could you both raise your right hands, please? Do you swear or affirm to tell the truth on this matter now before the Hawai‘i County Planning Commission? DALTON: Absolutely. ALDERSON: Yes. MIYASATO: Okay, state your names and your residence and you’ll both have three minutes each to testify. ALDERSON: Okay, Virginia Alderson. I live at 31-318 Old Māmalahoa Highway, Hakalau. MIYASATO: Go ahead. ALDERSON: I just wanted to speak to the public access. Mr. Watson mentioned that my husband Richard Alderson and I purchased the property in 2002 by contract from Continental Pacific, and we subsequently sold it to Mr. Watson and Mr. Olympia in about 2008. One of the things that always bothered me about this site even though it was quite beautiful and very, you know, very special and unique, was the shoreline access, because the way that the Agreement between the Continental Pacific and the County Planning Department Director at that time had come up with this access that was marked on the property, and it basically cut the property into two parts. We really like the building, the old buildings on the property, and one of the buildings was on the other side of the access. Also, at the time, it was very overgrown, and it didn’t look like you could even get down there anyway. So, we didn’t know quite what to do with it. I think that the solution that Mr. Watson has come up with is really a good solution and better access for the public. And I know that the public access in this case is real important to the County and to the community. MIYASATO: Thank you. Commissioners, you have any questions? Thank you. You can go ahead. DALTON: John Dalton, 27-102 Lali Street, speaking on behalf of the owners of Lot 23. The first time I went to look at Lot 23, it looked like downtown Baghdad after invasion day. It was just a total mess. There was another gentleman down there. We were both looking. We had heard there was ocean access, so we crawled and climbed down the sea cliff there and found water at the bottom and remarked what a remarkable fishing spot this would be if you could access it. Now you can go to that site. It’s paved. There’s a grass road between the sea cliff and the ocean that has now been restored. People are coming back. They’re fishing. Students in my classroom, I’ve told them about this fishing spot. They’re so amazed that they got their own secret spot now. They can carry a raft down there. They can dive from there. They can fish 18 EXHIBIT E from there. It’s a benefit to the community. It’s a beautiful site. You should all grab your pole and go fishing. That’s all I have to say. MIYASATO: Any questions, Commissioners? Thank you. Commissioners, any discussion? If not, I’d like to entertain a motion. HENKEL: Myles? MIYASATO: Commissioner Henkel. HENKEL: Would it be possible for us to visit the site before we take action? MIYASATO: Yeah, that was suggested by the Applicant. You could make a motion for a continuance and a site visit if that would be— HENKEL: So moved. MIYASATO: Do I have a second? MOSES: Second. MIYASATO: Motion made by Commissioner Henkel and seconded by Commissioner Moses. Is there any discussion? ONO: Are there other options for, before we act on this motion, that we can—and then I wanted clarified. Would there be discussion with the Planning Department and Scott? Is there a plan to have further discussions on this concerning—I’m rather confused as to the discussion that took place for example on the determination of the shoreline or the definition of the shoreline. Are you planning to have a discussion with Scott on this? KANUHA: No. ONO: Okay, thank you. MIYASATO: Any further discussion on the motion? Maija. COTTLE: Okay, the motion is, before you is to continue the matter in order to go on a site visit. Commissioner Henkel? HENKEL: Aye. COTTLE: Commissioner Moses? MOSES: Aye. COTTLE: Commissioner Heaukulani? 19 EXHIBIT E HEAUKULANI: Aye. COTTLE: Commissioner Ono? ONO: Aye. COTTLE: And Mr. Chair. MIYASATO: Aye. COTTLE: Okay, the motion passes five, zero. MIYASATO: Thank you. So you’ll work with, we’ll work with the Department to schedule a site visit and re-agendize. WATSON (from audience): Do we know when the next Commission meeting is? th COTTLE: August 7, yeah. MIYASATO: We’ll be discussing that with you after the meeting, and we’ll reschedule it. The discussion ended at 12:00 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 20 EXHIBIT E