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HomeMy WebLinkAbout2014-07-03 Hearing Transcript - HACA SPP 845 WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JULY 3, 2014 Hawaiian Acres Community Association A regularly advertised hearing on the application of (SPP 845) was called to order at 12:10 p.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 7 people from the public in attendance. APPLICANT: HAWAIIAN ACRES COMMUNITY ASSOCIATION (SPP 845) Amendment to Special Permit No. 845 to allow additional uses within the community center, including a farmers market, and a one-year time extension to comply with Condition No. 4 (construction timeline of the community center and volunteer fire station). Special Permit No. 845 was originally approved to allow the establishment of a volunteer fire station, community center and related improvements situated on three (3) acres of land within the State Land Use Agricultural District. The property is located at the northeast corner of the intersection of Road 8 and Road C within the Hawaiian Acres Subdivision, Kea‘au, Puna, Hawai‘i, TMK: 1- 6-052:002.  Hearing will include discussion and further action, if necessary, on the Planning Director’s request, on behalf of the Commission, for an informal opinion from the Board of Ethics regarding the legal representation by a former County employee of a potential intervenor in proceedings involving this amendment request. MIYASATO: Item No. 6 on the agenda, Hawaiian Acres Community Association. Staff? DARROW: Thank you, Mr. Chairman. This matter is a continued hearing for Hawaiian Acres Community Association. They had originally asked for an amendment to Special Permit No. 845. These amendments included allowing additional uses within the community center, including a farmers market, and they also asked for a one-year time extension to comply with Condition No. 4 which was the construction timeline of the community center and volunteer fire station. The matter was continued because of a possible conflict with the Code of Ethics within Chapter 2 of the Hawai‘i County Code, more specifically Section 291.2 which refers to post 1 EXHIBIT F employment, and this is in regards to the representation of Intervenor Susann Tita who is being represented by Jamae Kawauchi who had previously been employed with the County of Hawai‘i. There was a request for an informal ruling on this matter before the Board of Ethics, and this has been going on for some time now. There was another hearing before the Board of Ethics on th June 25 and at that time, the Board had decided to continue the matter until July 16, 2014, and they are requesting the presence of the Planning Director as well as Ms. Kawauchi so that they can ask them questions in regards to this matter. So, again, this matter has been continued from thth their June 25 to July 16, 2014 meeting. At this point, the Planning Director is asking that this matter be continued until after the th July 16, 2014 Board of Ethics hearing on this matter. Since our last hearing on this matter, we have received several correspondence which has been submitted to the Planning Commission. st One is a letter dated July 1. This is from Dorothy Sanger. This morning, we have received a response letter to that, an email from Cynthia MacDonald. And, lastly, we have received a st correspondence from the Board of Ethics dated July 1, 2014. That concludes our presentation. Thank you. MIYASATO: Any questions for staff, Commissioners? Commissioner Henkel. HENKEL: Jeffrey, at our last meeting, didn’t you announce that the Board of Ethics had never received a notification from Ms. Kawauchi as she stated under oath to us that she had submitted. rd DARROW: That was in a letter dated May 23. Let’s see. No, I’m sorry, that is not correct. That was the letter that was referring to the Planning Director’s submittal after that. st KANUHA: April 21, Jeff. st DARROW: Okay, thank you, April 21. We have a correspondence from the Board of Ethics st dated April 21, 2014, which states, this is to inform you, and this letter was directed to Planning Director Kanuha, this is to inform you that to date, the Board has not received a Petition or st request for opinion from or regarding Ms. Jamae Kawauchi. And so that was dated April 21. th The date of the hearing that was in regards to that matter was on March 6, that a--that representation was made by Ms. Kawauchi. HENKEL: So, Ms. Kawauchi was sworn in to tell the truth, and it’s obvious that she wasn’t. Is, is that something that should be brought before the Board of Ethics in itself other than the original issue? DARROW: I believe that will be addressed at the time of the hearing. I mean, there could be a possibility that she submitted something, and it just didn’t make it to the Board. I mean, we can’t unfortunately, well I mean, we can’t jump to conclusions. There’s possibilities that could have happened. She stated on the record that she did it, so if she didn’t do it, then she’ll have to answer for that. HENKEL: Okay. 2 EXHIBIT F MIYASATO: Commissioner Ono. ONO: Mr. Chair, may I? Jeff, regarding the letter from Dorothy Sanger? DARROW: Correct. ONO: I’m just wondering if we could, well I have a desire to agree with her on item no. 2, a separation of the, the attorney’s representation and we proceeding with—oh, I’m sorry—we, sorry about that, proceeding with the request for a Special Permit. DARROW: We’ve been advised by our Corporation Counsel that we need to address this matter before we move forward, and the reason why is because if we don’t address this matter, and we do go forward, that if any, if there is a conflict or a violation here, it could jeopardize the whole proceeding, so we’ve been asked to address this before moving forward. MIYASATO: Any further questions for staff? Thank you. DARROW: Thank you. MIYASATO: Do we have a—applicant present today for this? Please come forward? No? Okay, we have two testifiers. John Olson and Susann Tita, could you please come forward? Could you both please raise your right hands? Do you swear or affirm to tell the truth on this matter now before the Hawai‘i County Planning Commission? OLSON: I do. TITA: Yes. MIYASATO: Okay, could you please state your name and residence? OLSON: Yeah, my name is John Olson, and I reside at 13-631 Leilani Avenue, Pāhoa 96778. MIYASATO: Go ahead. You have three minutes. OLSON: I’m sorry? MIYASATO: You can go first. OLSON: Oh, okay, thank you. My concern here—I don’t live in Hawaiian Acres. My concern here is that, is one of process. I think the Applicants here deserve to have this done in a timely manner. You’re dealing with a volunteer organization who receives volunteer, voluntary dues from the property owners in Hawaiian Acres. These people don’t have, you know, it’s volunteer. That’s the bottom line. If you have a procedural problem on the County’s side, that’s your problem, don’t make it their problem. If there are people in the community like Ms. Tita here that are unhappy with the process, they have a course of action that they can take beyond this. They can take it to the appeals process or whatever. But, this has caused nothing but grief for 3 EXHIBIT F these volunteers who are trying to work in their community. They, the board members, are now being accused of being obstructive of what the community has asked them to do, which is of course, not the case. The community wanted to do a farmers market, so they went and found out what the process was, and here they are. And they tried to get it done. So, now they’re taking the heat over the County’s failure to move this along in a timely manner. That’s all. Thank you. MIYASATO: Commissioners, any questions? Thank you. Please state your name and residence, and you have three minutes. TITA: Susann Tita, and I live on Road 10. The board is volunteers, but the, there be, calling— the process is what is taking place here, and that I have equal opportunity and rights just like these other folks that want to have the market, and many of these people that want to have the market—and there’s maybe 20 or 30 folks involved—are half of ‘em are not residents or property owners. So, they want to take advantage of our subdivision to have a market or an event that may not be even what the residents and owners of Hawaiian Acres want. There are 4,000 lot owners, lots in there, which means that 4,000 of those people should have been contacted about this market. They were not. A president of a volunteer board that has approximately 200 members in it made a decision on her own to move this forward, when this was not the primary thing that should have been taking place. The primary issue is to see to it that, that building is secured, and that it is legal, which it is not now. And that we have a proper fire department, which we do not now, because they’ve torn out all of the plumbing and the electrics for it. So, the community suffers because 20 or 25 folks, half of ‘em not living in our subdivision, want a farmers market. Secondly, the board is embroiled in litigation with lawsuits right now and that is where the board is having a problem. They have hired two attorneys—two separate issues going on. Has nothing to do with this farmers market. Other issues where they were negligent, and those are being resolved in Circuit Court. This issue here, a farmers market, could put ‘em into another lawsuit which would be a third attorney to represent them in Circuit Court. And, I intend to take it as far as I can because I have a right to due process. They have not stopped their farmers market. They have continued, and the road has continued to be obstructed on different occasions. There is no respect in the community for the, the people that own property in there. It is what—the farmers market people—a handful of 20 want. Even though they don’t own a property in there. And that’s, that is an issue here, and I have a right to due process just like the 20 that want the farmers market do. I’ve been threatened. My property’s been vandalized over it. I’ve been demonized on the Internet. And, it just continues because I have filed an action to put a stop to this. MIYASATO: Thank you. Any questions, Commissioners? Commissioner Henkel. HENKEL: I happen to believe that farmers markets in neighborhoods benefit the community and you mentioned all the litigation going on in Hawaiian Acres. I’m wondering if the people of Hawaiian Acres had a venue where they could gather weekly and discuss issues that possibly some of the litigation wouldn’t be necessary. TITA: I hear what you’re saying, but what’s happened with our community center is a group of about 20-25 folks have taken over the community center, and run it as their own private 4 EXHIBIT F organization excluding community members. There is no outreach to our community anymore. It would be good if we had a user-friendly association that would reach out to the 4,000 lot owners and try and encourage everybody to come together, but that’s not what is happening. And that’s why they’re in litigation. HENKEL: I’m a member of a, you know, small community with a similar situation, and what I found is they, the members of the board, the property owners’ association--our bylaws mandate that we have elections, but you know who it is? It’s the ones that show up and do the work, and you say a group of 20 has taken over. I look at it as a group of 20 are the ones that are stepping up and doing what they need to do for the community. TITA: But that’s not what’s happening. The group of 20 that’s taken over is not a group that is congenial to the rest of the community. We have people coming, and some of them that are homeless from downtown, the park down here, I know because I work down there. I see ‘em. And they come up and we have problems, instances where that their little gatherings at one of those little markets, they actually were selling marijuana plants. We’ve had admitted by the group themselves that there was dope use going on there. That they broke up fights. So, this is not a group that is working for the community. It’s a group that has become self serving and what they do what they like, that’s what I call it. MIYASATO: Any further questions, Commissioners? No? Thank you. Commissioners, any discussion on this? HENKEL: Is there any way we can allow the event to happen conditionally until it’s resolved because I feel like the whole community is being punished by not allowing it to happen. This would be for Margaret, I guess. MASUNAGA: But you know what? I thought--didn’t you say that it was continuing? TITA: They have continued to put up tents and then there’s been blockage of the highway. They had some free food thing taking place and it just, yeah, it’s continued off and on unchecked. MASUNAGA: I would—I don’t know if you were at the meeting in February, but the attorney for the Planning Director was here, Bill Brilhante, and he testified or he said that if you as a Commission do pass any motion, it may be void because of the pending Board of Ethics hearing th which is I believe July 16. Is that correct? DARROW: Correct. MASUNAGA: So, given what Mr. Brilhante said before, I would believe that, that would still be the stance of the Planning Director. KANUHA: Mr. Chairman, perhaps I might add to that. The key component here is that there is a request by a member of the public to be admitted as a party in a contested case proceeding, okay, and so that is what the Commission has to make their first decision on, whether or not to 5 EXHIBIT F admit that person, and in this case it’s Ms. Tita and her attorney, as a party to these proceedings. If you do admit them, then we’ll go into the contested case proceedings. If you don’t, then you’ll still have to provide reasons for not admitting them as a party and proceed. The problem there is that until you dispose of that request one way or another, whatever decision you make, is going to be tainted all the way through, all the way up to the process. And, that’s, you know, that’s a risk I think all of our legal advisors are advising you to consider really seriously. Both for the benefit of the Commission, and the benefit of the Applicants. MIYASATO: Any further discussion, Commissioners? If not, I will accept a motion. MOSES: I’d like to make a motion that we continue this after the, or agendize it after the July th 16 meeting with the Board of Ethics and the Planning Director as the Planning Director’s recommendation. ONO: Second. MIYASATO: Motion by Commissioner Moses and seconded by Commissioner Ono. ONO: I have a question. For the sake of discussion, does it mean that we will be getting an answer from the Board of Ethics for the August meeting? I mean, are we going to get an answer on the, from the— KANUHA: I think if—Mr. Chairman, perhaps I can respond. The difficulty there is apparently Ms. Kawauchi has not filed any request. She has not appeared before the Board, so they cannot make a ruling until that— MASUNAGA: --appearance. th ONO: I understand that, but she is being directed to attend the July 16 meeting. KANUHA: She was also supposed to attend this previous meeting, and she did not attend either. That’s why the meeting was continued. I was present. I could have attended but legal counsel has advised me that it is not the Planning Department’s request. It is—I made the request on behalf of the Commission. That was the Commission’s directive, you know, to initiate the request for the ruling on this particular matter, so, but I was represented by counsel, and they weren’t able to take any action because you know Mr. Kawauchi was not present nor did she you know provide any substantial information, etc. ONO: Follow up—assuming that she will be present, assuming that she will be present, my question really was, do we get an answer or the Board of Ethics decision by the August meeting? Is that a possibility or do we—is it up to the Board of Ethics to say we’re not gonna respond to September, October, whatever. KANUHA: Well, they can’t respond, you know, until either there’s something to respond to, and in this particular case is—and they need to hear her arguments in terms of why she believes 6 EXHIBIT F she’s not in conflict or not, and you know, but being unresponsive, the Board itself cannot act on anything. ONO: Okay, so we can assume that there may be another continuance after August, our August meeting. KANUHA: I don’t think we can assume anything. ONO: Okay, thank you. MIYASATO: Commissioner Henkel. HENKEL: It’s seems to me that it’s a calculated risk if we try to take action now, but to my knowledge, Ms. Kawauchi has not made any effort to resolve it. I don’t—I can’t help but feel personally that she’s just stalling to let her one year grace period run out so that she can represent. On the other hand, she lied to us under oath which is another Board of Ethics issue. I would—I can gamble a little bit. I would say let’s try to resolve this one way or the other, either for Ms. Tita or the Hawaiian Acres residents. th MASUNAGA: I do want to say that she did—Jamae Kawauchi did call me on the 27 of June. th She told me on the phone that she thought the hearing was on the 27, but we understand that it th was on June 25. She had calendared it for the wrong date, so I believe that she will show up at the next meeting before the Board of Ethics on July 16, and if Susann Tita, if you’re in contact with her, you know, you might want to remind her. TITA: Yes. MASUNAGA: Okay, thank you. MIYASATO: Any further discussion on the motion? If not— DARROW: Thank you, Mr. Chairman. The motion is to continue this matter. With that, we’ll take the roll call. Commissioner Moses? MOSES: Aye. DARROW: Commissioner Ono? ONO: Aye. DARROW: Commissioner Heaukulani? HEAUKULANI: Aye. DARROW: Commissioner Henkel? 7 EXHIBIT F HENKEL: Aye. DARROW: And Mr. Chairman. MIYASATO: Aye. DARROW: The motion passes five to zero. The discussion ended at 12:36 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 8 EXHIBIT F