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HomeMy WebLinkAbout2014-09-04 Hearing Transcript-HACA SPP 845 WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT SEPTEMBER 4, 2014 Hawaiian Acres Community Association A regularly advertised hearing on the application of (SPP 845) was called to order at 5:32 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, and Raylene Moses. ABSENT AND EXCUSED: Stephen Ono. ALSO PRESENT: Duane Kanuha (Planning Director), Margaret Masunaga (Deputy Corporation Counsel for the Windward Planning Commission), William Brilhante (Deputy Corporation Counsel for the Planning Director) from 1:02 p.m., Daryn Arai (Planning Program Manager), Jeff Darrow (Staff Planner), Maija Jackson (Staff Planner), to 6:30 p.m., Christian Kay (Staff Planner), Sarah Hata-Finley (Commission Secretary), Kim Tanaka (Secretary), to 4:30 p.m., and Melissa Dacayanan (Planning Commission Support Technician), to 4:30 p.m. And approximately 9 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. 8 on the agenda. Hawaiian Acres Community Association. Okay, the first order of business regarding this agenda item is to determine whether to accept a Petition for standing from Susann Tita received by the Planning Department on November 14, 2013. Rule 4-6(a) states in relevant part that a person seeking to intervene as a party shall file a written request on a form approved by the Planning Director and accompanied by a filing fee of $200 no later than seven calendar days prior to the Commission’s first meeting on the matter. As stated, the Petition was submitted on November 14, 2013, more than seven days prior the initial meeting on this matter on January 9, 2014. So, the Petition is considered timely. 1 EXHIBIT H Rule 4-6 also states in relevant part that if a timely request is file, standing shall be granted if the following criteria can be met: his or her interest is clearly distinguishable from that of the general public or government agencies whose jurisdiction includes the land involved in the subject request or that they have some property interest in the land or lawfully reside on the land or that even though they do not have an interest different from the public generally, that the proposed action will cause them actual or threatened injury, in fact, or persons who are descendants of Native Hawaiians who inhabited the Hawaiian Islands prior to 1778 who practiced those rights which were customarily and traditionally exercised for subsistence, cultural, or religious purposes. Could we have Susann Tita or her representative come forward? Could you 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? TITA: Yes. MIYASATO: Could you please state your name and residence. TITA: Susann Tita— MIYASATO: Oh, use the mic, please. TITA: Susann Tita, Road 10, Hawaiian Acres. KAWAUCHI: Jamae Kawauchi, attorney for Intervenor Susann Tita, Kamuela, Hawai‛i. MIYASATO: Okay— KAWAUCHI: --are you also planning to have a representative from the Association appear also? I understand Mr. Lehnert is here today from the Association. MIYASATO: We are, we would like to--we would like to cover the matter of the contested case, standing, so-- KAWAUCHI: Prior to the issue being address, Chairman, and thank you also, long day Chairman Miyasato and Members of the Commission, as we, I wanted to just bring your attention to the Petition that was circulated to the Commission for a complaint against Commissioner Henkel filed by Ms. Tita. I think copies of same were distributed to the members, so I would like to ask whether or not Commissioner Henkel is going to recuse himself from the proceedings today in light of the pending complaint against him. I’m not informed that that matter has been fully resolved by the Board of Ethics yet. HENKEL: I’m not going to recuse myself. 2 EXHIBIT H KAWAUCHI: Okay, so I bring your attention then to a second matter which is a—I believe that I have, that you have a defective agenda with respect to this item. Commissioner, Chairman Miyasato, you have stated that the first item on your agenda today is the matter of standing for Ms. Tita’s Petition for Intervention, and according to the Sunshine Law, that ought to be noticed to the public. Item 8 does not reflect the Petition for Standing as an Intervenor in this case, and I believe that your agenda with respect to this item fails the Sunshine Law provisions concerning notice to the public. At that point, you can decide whether or not you’re going to proceed or postpone until the item is corrected. I should also note to the Commission that this is a matter I’ve already discussed with the Office of Information Practices. I’ve received an informal opinion from them, and it’s their belief that this type of item should be notified. You should notice the public as to the intervention--Petition for Intervention. You have counsel so I’m sure you’ll consult with your counsel. MIYASATO: We’ll proceed. KAWAUCHI: Just also knowing that if you proceed and there is a Sunshine Law violation found, that any matters that are discussed will have no effect, so your decision is still to continue to proceed. MIYASATO: Yes. Okay, yes, we would like to have your explain why you should be granted standing according to criteria in Rule 4-6. KAWAUCHI: Thank you. I’d like to discuss that matter with you, and my client will also like an opportunity to also discuss that matter. On January 9, 2014, there was a meeting of the Hawai‛i County Planning Commission and a Memorandum in Support of the Petition for Standing in Contested Case Hearing along with Exhibits A thru R were presented to the Commission. Ms. Tita submitted a Memorandum in Support to further give information to the Commission on her Petition. As you know, by way of procedural background, this Special Permit, Permit No. 845 was issued to the Hawaiian Acres Community Association in July or on July 22, 1998, a copy of which was attached to the Memorandum that we provided to you, and also I should say copies of which were also provided to you again today. The—by virtue of the, by virtue of the permit that was issued to them in 1998, this permit has already lapsed. Your Planning Commission rules, its Rule 6-9 with respect to any amendments to Special Permits require that the request for amendment to the permit be made not less than ninety days prior to expiration date of time, and that was not done in this case. So, you’re actually taking up a matter which is already lapsed, and if you follow your Planning Commission rules, that in of itself would basically tell you that you shouldn’t even be considering this matter. It shouldn’t even be on your agenda. I think that Ms. Tita has a significant interest and right and should be admitted as a party. Her interest is clearly distinguishable from that of the general public. She’s a lot owner, resident, and paid member of the Hawaiian Acres Community Association. She has an interest in the land involved in this Petition because she’s again a lot owner, resident, and paid member of the Association. The requested amendment has a direct impact on her ability to access her residence and property and will cause or threaten injury. The expansion of meetings and events held at the community center and the operation of the farmers market will block Roads 8 and C by motor 3 EXHIBIT H vehicles parked on the roads. It will also add to traffic congestion. There is a letter from the Hawai‛i County Police Department dated November 20, 2013, a copy of which was attached to the Memorandum in Support as Exhibit G which also further supports Ms. Tita’s position that she will suffer or threaten injury. The area proposed for the farmers market is not sufficiently developed for the potential traffic it would create and create, therefore create, unsafe road conditions for her and other members of the public. In particular, it really impacts her because she needs to utilize these roads in order to gain access to and from her residence in the Hawaiian Acres Subdivision. You must note also that the proposed parking for the farmers market is not sufficient, and it’s not large enough to accommodate the proposed use as a farmers market, and portions of the parking lot are not—it doesn’t appear at least to a visual site inspection by lay persons—to be level and may pose unsafe conditions in that area. And, again, we would refer to the Hawai‛i County Police Department letter dated November 20, 2013, as for their support. We’ve provided as copies to, or provided to you copies of, photographs of the farmers market activities and the problematic parking areas. I have better copies that I can pass to the Commissioners and would like to do so at this time. Thank you. DARROW: So, these would go into the record. KAWAUCHI: Yeah, and we can pull ‘em out later should we need to use them again. DARROW: Okay, yeah, is it just these three? KAWAUCHI: I have others, but I kind of want to stick with those for now. DARROW: Okay. KAWAUCHI: So, we’ve provided to Mr. Darrow three copies of photographs that have been taken of the area, and the photographs depict the parking conditions there. You will note that the parking conditions do not comply with Hawai‛i County Code. Section 22-2.4 of the Hawai‛i County Code prohibits blocked roadways and impeding and obstructing roadways. No person shall, shall create an unreasonable risk of harm to any persons or property on County streets. There may be an argument made that the roadway is not a public street, not a County street, but according to the community association’s permit, one of the conditions that they’re required to uphold is to comply with all stated conditions of approval. The second condition would be to comply with the requirements of the County Code with respect to parking and streets. And, it also says driveway access shall meet with the approval of the Department of Public Works. Applicant shall also comply with all applicable County and State laws, rules, regulations, and requirements, including Department of Health, Fire Department, Department of Public Works. So, clearly, although the provision of Section 22-2.4 discusses unreasonable risk or harm to any person or property on a County street, the Association has voluntarily submitted to complying with County rules and regulations and should be forced to do so. 4 EXHIBIT H Inadequate parking Section 25-4-54 addresses the problem of inadequate parking, and these basis are not as shown and depicted in the photographs, are not compliant with the County Code standards for parking. These, again, pose unreasonable and unsafe conditions for Ms. Tita. As stated previously, she utilizes these roads seeking access in and out of her residential lot to the subdivision. Should they be allowed to persist, she would be greatly affected by it as well as others who utilize these roads. There’s been other instances of the—she’s contesting the use of the area as a farmers market. We have noted that the Hawai‛i County Planning Department has issued a cease and desist order on November 7, 2012, related to the farmers market activities as an unpermitted use in that area and to the best of my knowledge, there are activities that are continuing. I’m not sure if they’re transacting goods or services for money, but it does appear that they are still having gatherings in that area, and to the best of my knowledge, there have been no further investigations concerning the farmers market, but activities are continuing. The Association is also in violation of building ordinances. There’s a January 9, 2012, Department of Taxation permit record, a copy of which was also attached. It’s attached as Exhibit C. You’ll note that Exhibit C depicts a—one bathroom for the structure that’s there, but, it actually has I think at least two, and one of which is unpermitted. Then there’s the Association has been in continuous use since the permit has lapsed, and there have been no attempts since January 2014 for the County to resolve those issues. Ms. Tita has a vested interest in protecting her safety and ensuring the safety of roadways located within the subdivision. And only the County of Hawai‛i can enforce the County Code, and Ms. Tita has no other means to protect her interests. Her interests are not represented by other parties. She knows of no other party that will raise safety concerns regarding the Hawaiian Acres Community Association amendment to the Special Permit within this subdivision. Her participation in this matter will help in developing a complete record because without it, you will not have a complete picture of what’s happening in the subdivision. And, her participation and intervention will ensure compliance with County ordinances related to the serious safety conditions within the subdivision. The public interest would be served by ensuring the safety of roadways located in the subdivision. I should note also that, and it was noted in our memo in support, that when the area has, and is subjected to rainfall, there’s significant amounts of road and water that gathers, rain and water that gathers in the roadways. I’d like to submit to the Planning Commission another photograph. It is a photograph that depicts—is this Road C? TITA: C. KAWAUCHI: --Road C, and it will show that the road is completely flooded with water. Should you have farmers markets activities that are scheduled during that time, you will be subjecting motorists and that includes Ms. Tita, to further risk of harm in that area. 5 EXHIBIT H The next photographs that I’d like to submit to you show the further parking areas and the uneven conditions that are presented there, and these are the last set of photographs that I’m going to distribute to the Commission. Thank you, Mr. Darrow, and Mr. Darrow I think has provided you with the photograph of the roadway that’s inundated with water, and that photograph was taken—February? February of 2000—oh no I’m sorry, it was January, January of 2014. So, all the photographs were taken in January of 2014. I should note that, you know, it’s not easy to be a person who intervenes in an application like this. She really is, and it’s very true, her participation and her interests are not represented by other parties. She’s really been going at this alone. In some of the photographs that I’m showing you, you’re gonna notice that there’s a water catchment system in the photograph and there’s spray paint on it. There have been offensive things spray painted on that water catchment system about Ms. Tita, and it has occurred around the time that she started making formal inquiries into the safety issues that she’s been trying to address with the Association. In particular, I think it was “Susann Tita eats ass.” And that has also been spray painted in other areas of the subdivision. So, you know, she has been going at this pretty much alone, trying to get headway with making people and the Association on her own understand, that in order to proceed on a Special Permit amendment like this, you need to be in compliance with the County Code, you need to be in compliance with the permit application itself, you have to address the serious safety concerns. I believe that had the, had the County not issued its warning letter about the farmers market in 2012 that the Association would never have come forward for the application for this amendment. It would have continued on, utilizing the property’s--doing what it wanted to do on its own, and not complying with any of the Code provisions or the rules that most people have to follow when utilizing buildings to ensure—and it’s really about ensuring safety, and making sure that people are safe and getting the full benefit of the areas that they live in. It’s a shame that the process has been so, so uncomfortable for everybody because I think what would be best is that the whole community there be able to come to an agreement on utilizing the space and doing it safely and correctly. But, if you don’t grant her, her Petition, I am very afraid that you will also be ignoring your own Planning Commission rules that specify that when a permit has lapsed, it’s done. And we’re not talking about, you know, an inadvertent like ten days, we forgot to do it, or you know, we’re talking about like a 16-year lapse. And, I don’t understand why that matter was not addressed by the Planning Director’s letter to you or his Recommendation, but I think it, if it, it should have been like the first, to me the first item that got addressed by the Planning Director, okay? Because, there’s a clear rule that says they’re supposed to come forward, and they didn’t. So, I’m going to turn the microphone over to Ms. Tita so you can hear from her now. TITA: Yes, my name is Susann Tita. I think Ms. Kawauchi has really put forth a good itemization of the, the problem, the situation it is. However, by not following up on this permit, the Board of Directors has put all of the property owners in a very bad position because the property is still listed as a residential—a one bedroom residential unit. It should not be operating as a community center. If there is something that would occur or someone gets hurt or anything involved with this farmers market, the entire community is going to absorb the liability of that because the insurance is not gonna cover that. The insurance has already been cancelled once due to the fact that they received a cease and desist from the County. The insurance was not aware that there was a farmers market operating. They were not covered for that. So now, if this insurance company were to find out that this permit is not current and expired, then it puts the 6 EXHIBIT H entire subdivision, all of the property owners, at risks. Some of these folks that want this farmers market are not even property owners. They don’t live in the subdivision. The other issue is the fire house. It was under the advice of the County that the electrical and the plumbing was ripped out of the fire house, so what is going to happen at night if there’s a fire? So, we’re told that the firemen would operate the extracting of water from the catchment tank by using car headlights. Again, the community is again put at risk. If a serious fire happens at night, we’re all at risk. If a fire or an ambulance is needed during the day, and that farmers market is operating, those emergency services cannot get through on the road. It’s blocked. There’s no reason that we should even entertain the thought of a farmers market at this time with an expired permit on a building where many people want to use for any activities whether it’s schools, or training, or whatever it is, it needs to be addressed right now. The permit needs to be brought into compliance before anything else is even thought of in that building. And there are issues inside that building. To bring the permit current, they’d have to be repaired. I just cannot understand why it went to a farmers market and the seriousness of the permit is being overlooked. Anyone have questions? MIYASATO: Commissioner. HENKEL: Hi, good evening, and I applaud your efforts concerning your safety and the safety of your neighbors. I do—the first three photographs you passed around— TITA: --yes. HENKEL: --about the cars blocking the roads? Would you show me which photograph has a car blocking the road in it, please? TITA: I don’t have the photographs. May I? This is a road. These are the cars on the road. And this is also another car on the road. Then what happens on the other side of the road is that they also park cars. You can’t get through. So you could be stuck out on the main highway Road 8 trying to get in, and you have to wait until someone moves a car. HENKEL: I’m sorry, but it looks to me as if the road is clear and the cars are parked on the gravel area off the road on the shoulder. KAWAUCHI: Commissioner Henkel, that’s because the way that the road is paved gives you the appearance that the road is in fact only supposed to be the portion of the picture that’s paved. So the road actually is wider than the pavement according to the— HENKEL: --So a vehicle wouldn’t be able to get through here? TITA: No, they couldn’t, because there’s cars on the other side. That pavement is so narrow, it’s deceiving. It is not a two-lane, the—where those cars are parked is actually part of the road. HENKEL: Is it a one-lane road? TITA: Yes sir. 7 EXHIBIT H HENKEL: So there is access and egress on the one lane? TITA: They’re still on the road— HENKEL: --okay— TITA: --and cars on the other side of that pavement are also on the road. HENKEL: Okay, well this photograph is deceiving. I have one more question. TITA: Yes. HENKEL: I was wondering if you and your legal team are working with the Hawaiian Acres Association to remedy their legal challenges? TITA: As to the permit to try and bring it up to Code? Yes, I am. HENKEL: Okay. TITA: I’ve decided to—they have new elections coming up, so I’m going to apply to run on the Board, and if I get voted in on the Board, you bet. I’m gonna—my first agenda is to bring the permit up to Code. It is the highest priority for our subdivision that, that building become a legal community center. HENKEL: Well, thank you, that’s good to hear that you are interested in having it become a community center. KAWAUCHI: We did—Susan and I attended a meeting of the Association in February of this year, and we discussed all of the concerns that were there including at that time, the Fire Station was wired with electrical although it wasn’t permitted. My understanding is that the electrical has been removed from the Fire Station, so you’ve got a Fire Station right now that has no electrical and no electrical permit. Now, the meeting that we had has not resulted in any further action by the Association to remedy any of its legal issues. I think what they’re more concerned about is getting an amendment to their permit, but again, the permit that they have was submitted in 1995 and lapsed in 1998, so getting an amendment to it wouldn’t resolve their legal problems, I don’t think. I believe that the Building Code has probably changed between now and then, and they haven’t addressed any other, you know, they haven’t—it was pointed to them that the bathroom was not permitted, but that’s not, it doesn’t seem to be a significant issue to the Association. So, another matter that was discussed at the meeting was, was the supervision of the farmers market activities including trying to monitor the traffic conditions that would be present should they increase the numbers of persons at the center by a hundred persons or so and then overflow with parking. I didn’t, my understanding from that meeting, and Susann, please let me know if this is your memory, too, they don’t have persons that they can assign to monitor traffic in that area for their activities. And it’s not really something that seemed the Association really wanted to do, so—is that correct, Susann? 8 EXHIBIT H TITA: That’s correct. I’d also like to point out at the meeting a couple of the participants became argumentative, and one of struck me on the back. I had to call the Police and file a police report against the individual. I mean, it just has not been an agreeable group. Then there’s been problems within the community center, they’re being—they’re in litigation right now. They’re being sued. They’re suing the road committee. It is a mess. It is a mess. And unless they are now start to take a clear path to run this community association like a business, it’s not gonna, it’s not gonna make it, and what’s gonna happen is that the homeowners, the landowners, are all gonna wind up in litigation because it is a privately owned subdivision, and I would like to see this permit addressed first before anything else, so that it becomes a legal community center, and once that is accomplished, then move on to the next challenge. MIYASATO: I’d like to bring up Bill Brilhante. MOSES: Chair, am I able to make a comment at this point? MIYASATO: Yes. MOSES: So--thank you for sharing what you’ve shared. I know that there are a lot of residents dependent on this farmers market that they have listening to testimony allowed, but what is concerning to me is the permit, and that it lapsed, and that it’s not current and it’s expired, and that they are not in compliance, and so is there anybody that can speak to that from the Planning Department? BRILHANTE: William Brilhante, Deputy Corporation Counsel, County of Hawai‛i. I think we’re kind of getting into the merits of the case— MOSES: --sorry— BRILHANTE: --and we’re still just addressing the issue regarding standing, and I would like to— MOSES: Okay, thank you— BRILHANTE: --keep on track with that— MOSES: All right. Thank you. BRILHANTE: Not to—I’m just giving a recommendation. MOSES: Okay. KAWAUCHI: Right, and I you know what I would note is that your agenda talks about the amendment to the Special Permit No. 845 to the Hawaiian Acres Community Association, so I think the question is actually probably appropriate even if we’re discussing standing right now. 9 EXHIBIT H MIYASATO: I’d like to have your comments on standing. BRILHANTE: Well, you know, the request before us is a motion to intervene on a permit, and the Planning Commission has specific rules as to what the requirements are as it relates to granting a party a written request to intervene, and over here it says Petition for Standing in a Contested Case hearing. And, the requirements are that the applicants his or her interest is clearly distinguishable from that of the general public, and so far everything I’ve heard to this point from the applicant, her interests are not distinguishable from the general public as it relates to issues with parking and with safety. Those, those specific items are general to the entire public—all the neighbors, all the people who traverse on the road, and the like. Unless the individuals are parking on the applicant’s property, I don’t see there’s no real distinguishable, clearly distinguishable evidence that the applicant to intervene in this contested case is specifically being harmed or injured. The second area is that the safety concerns are, that the applicant raised, are being properly vetted in this process. Notification was given to the Fire Department, the Police Department, and the like, Public Works, and responses came back. Concerns regarding safety issues were provided to the Planning Department in those responses, and those items were specifically addressed. So, the applicant raising these issues is not distinguishable from any other, you know, person of the general public raising these issues. There’s another area to grant standing, another consideration is whether Ms. Tita’s alleged injuries are unique to her, and as I pointed out during the issue with parking and the issues with traffic, traffic and parking is not unique to any one individual. It’s gonna be generalized by the community in and of itself. The requested application is to run a farmers market during a set period of time on Saturdays, and I think during that period of time on Saturdays, there’s numerous roads in Hawaiian Acres Subdivision. There’s numerous routes that the applicant could take if she needed to get in and out of the Subdivision. There’s been representations made by both Police and Fire that adequate personnel be provided for, to assist with parking. I’m sure if an emergency situation arose during the time of the farmers market, that parking personnel would be able to assist if there’s a situation, which I haven’t seen any evidence yet, where the roads are completely blocked or an emergency vehicle cannot get, cannot pass through. I’m sure those issues would be addressed and have been addressed by, were properly vetted during the Planning research and investigation in the application. And, again, that’s not specific to Ms. Tita unless you know again they were parking, specifically parking and blocking Ms. Tita from leaving her property, and that’s not the case here. The issue with, the issues that were raised outside of just the parking and traffic are more specifically related to the application in its generalities, the timeliness of the permit, the issue with the completion of the Fire Station and the like. Those issues and those allegations again aren’t specific to the applicant here. They’re general questions, general issues that can be raised properly by the Commission. If the applicant wants to provide additional information as it relates to those issues, she has the opportunity through the public comments segment of the proceedings, and the public comment session if issues are raised, the past practice has been that the Commissioners are allowed to ask each witness additional questions as it relates to their concerns with a particular issue. So, again, it takes us back to the fact that whether or not Ms., 10 EXHIBIT H the applicant’s injuries are in fact clearly distinguishable and unique to her which, it’s our opinion at this time that they’re not. KAWAUCHI: Mr. Chairman, I just want to clarify. I do not recall a motion being made. I recall that we—my client and I were both called up to speak with the Commission, but I do not think that there’s a pending motion concerning standing. So, because of that, my understanding is this is the public discussion portion of the meeting relating to the Hawaiian Acres Community Association permit, so I think that should be clarified. I also want to clarify whether or not the letters that came back from Police, Fire, you know all the County departments that are asked to provide comment when an application like this is submitted. Were they also provided copies of Ms. Tita’s letter for intervention or her Petition for Intervention? If they were not, then I don’t think that those departments have had an adequate opportunity to comment on her concerns, and in addition to that—that’s the whole part of a contested case hearing. That’s why you have them. That’s an opportunity for Ms. Tita to call witnesses to testify before you so that you can get their comments about those matters. At this point, there’s been, I don’t think that has actually been addressed, so I don’t think her concerns were adequately addressed. They’ve only been based upon the representations of the Applicant and the representations of the Applicant also have not taken into consideration Ms. Tita’s concerns for the public safety and welfare of this community. There’s been, there’s no reply letter from the Association replying to her telling her that well, we understand that you have concerns and here’s how we’re going to fix them. We attempted to talk to them in February of 2012, following the January—excuse me, 2014—following your January meeting, and we have not made headway. Instead, she’s continued to face opposition from her subdivision on matters that concern her greatly. She’s directly affected by these roads. Remember, these are the only ways that she has to get in and out of her lot. The other roadways that are depicted on County maps and tax maps are not accessible. They’re completely blocked. She’s got no way in and out, and she does have, I think, an interest in these activities going on there because they affect her in her community. They affect her lot. She’s talking about safety and hazards related to fire emergencies, making sure that people can get to where they need to go in case of an emergency. You’ve got already a picture showing a flooded roadway. Imagine having a farmers market on a day like that where there’s a flooded roadway. Cannot get in and out of that place. You got cars on the road. Up to a hundred visitors in that little area with parking only allocated and insufficient, inadequate, and hazardous parking, not compliant with County Code in that area for only up to 35 cars. So you’ve got a hundred people in that little tiny place, no way in and out, and not an ability for fire rescue to get in, in an adequate and safe way. So, we want to think of I think things in a more positive light. It’s a positive thing to have community gatherings. It’s a positive thing to have a great community association building. It’s a positive thing to have people come to your neighborhood and be able to enjoy it, but you’ve gotta take care of the responsibilities of your neighborhood first. It’s much better to have a permit that started fresh and new and not add additional, additional activities at this time until they’ve gotten something done that fits the Code that can then you know be safer for everyone, and especially for the applicant, Ms. Tita. And, again, this is the only vehicle that she has to have her interest protected. She’s got no other way to do this. TITA: My question is, is Mr. Brilhante testifying on behalf of Hawaiian Acres? Is that your position? 11 EXHIBIT H BRILHANTE: I’m an attorney, and I represent the County of Hawai‛i Planning Department, Corporation Counsel Deputy. TITA: I see. As Ms. Kawauchi said, there is only way in and only one way out for me. Those other roads are no longer accessible, and it is a question of safety because even the County of Hawai‛i Police Department does not agree with a farmers’ market. They feel it is not safe. They feel it is a problem. Those roads are blocked when they have the farmers market. There has never been an attempt to rectify the situation. They still continue to have gatherings. They still have the parking problems. And, the most important thing is that the permit should be put in place properly so that the building is not listed as a residential, but as a community center what it is supposed to be. In this one year that it has taken for this whole process that we’re going through, the Association has made no effort to rectify or make a step towards correcting the permit problems other than to rip out the plumbing and the wiring from the Fire Department rendering it, more or less, a useless building. There’s, there’s not been anything done that would benefit the community. This is taking the community in a different direction, putting it more at risk. Whose it gonna be on the hook to pay for this—will be the residents, because it’s a privately owned subdivision. And, it is not a fair and accurate statement to make that a lot of people are participating in the farmers’ market. Yeah, maybe 10 or 15 people, and as I stated, those 10 or 15 people that are participating, some of ‘em do not own properties or live in the subdivision. By having some of the other activities that they’re heading, they are now bringing in people from Downtown Kapiolani Park to hang out on a Saturday in our subdivision down there at our community center. This is not a benefit for our community. It is something that is bringing in outside people. That is not benefitting our community. MIYASATO: Go ahead. BRILHANTE: You know, I just want to—I’m glad that the applicant has brought up the issue about the letter from the Police Department because that just solidifies our point that her concerns are being properly addressed, and the letter from the Police Department specifically said that establishing a farmers market has the potential to create added congestion and parking issues in the area that is not sufficiently developed. So, those concerns were raised by a governmental agency just like the system. You see, this system is a process. There’s a process here. The process is working perfectly. For Mr. Tita to be granted standing to rehash the same concerns, it doesn’t allow, it doesn’t provide for a unique or indispensible or a clear, again, a clear, distinguishable interest from that of the general public. You know, we have safety agencies—Police, Fire—and I look at the list of you know agencies that responded. There’s numerous. There’s about ten or so agencies that responded. They’re the experts in the area when it comes to safety issues, and I think by Ms. Tita raising these issues, it’s not distinguishable. Her raising the issues is not clearly distinguishable from concerns of the general public. TITA: It is distinguishable because I can’t get in, and I can’t get out. I have been in that subdivision for going close to 20 years, and when I bought my property, I worked hard to help improve the roads when they first came in there. And, now, to see that it will be changed and I 12 EXHIBIT H can’t get in, and I can’t get out on a certain day and certain times, it is, it is, it is a personal issue. It is something that I have a serious vested interest in it. BRILHANTE: Just to clarify the record, I was handed a note from one of the members in the audience that one of the pictures depicting the flooding was taken prior to the construction of a culvert that was placed in the property. KAWAUCHI: The person who handed the note to Mr. Brilhante did not take the photographs so she cannot testify as to the date, time, or even the place. She might be able to identify it herself, but she can’t tell you when it was taken. Ms. Tita took the photographs. She’s the best person to tell you the date and time it was taken. MIYASATO: Commissioners, any questions for the Petitioner or for staff? If not, thank you. Commissioners, any discussion? If not, I will accept a motion to grant or deny standing. HENKEL: Mr. Chair, in the matter of SP 93-000006, SSP. [sic] 845, I would move to deny standing to the Intervenor Susann Tita. MIYASATO: I have a motion on the floor. Do I have a second? MOSES: Second. MIYASATO: Motion by Commissioner Henkel, second by Commissioner Moses. HENKEL: I don’t believe the Intervenor displayed clearly distinguishable interest from the general public. MIYASATO: Any discussion on the motion? If not, call the roll. DARROW: Thank you, Mr. Chairman. The motion before us is to deny to grant standing to the Intervenor. With that, we’ll take the motion. Commissioner Henkel? HENKEL: Aye. DARROW: Commissioner Moses? MOSES: Aye. DARROW: Commissioner Heaukulani? HEAUKULANI: Aye. DARROW: Mr. Chairman. MIYASATO: Aye. 13 EXHIBIT H DARROW: The motion passes four to zero. MIYASATO: We’re moving to the Item 8 on the agenda, the Hawaiian Acres Community Association. We have three testifiers for this amendment to Special Permit. Could I have Dorothy Sanger, Jon Olson, Ole’ Fulks come forward? Could you 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? SANGER/OLSON: I do. FULKS: Absolutely. MIYASATO: You may go first. Please state your name and residence. SANGER: Good evening. You guys have had a long day. My name’s Dorothy Sanger, and currently, I am located right next to the Association, and I don’t have the address. I apologize. And, I am in favor of the, of the permitting the farmers market, permitting the building making it safe. I did submit a letter to you that I’ll just read quickly. It should be in your file, and it says: Dear Planning Commission, I am respectfully requesting the Special Permit to please be granted without further delay to the Hawaiian Acres Association. Should the Planning Commission vote to grant the Special Permit that Hawaiian Acres be allowed to move forward, conduct business regardless if Susann Tita files an appeal or files another complaint. Number one, Susann Tita’s parking complaint has been addressed and solved. If needed, photographs are available from the original presentation early in the year. We had the overhead, and there was plenty of parking. It has been addressed. It is a serious issue, and we addressed it. Number two, I don’t know if this applies anymore, but the alleged ethics complaint against Susann Tita’s attorney appears to be a separate issue. Her possible ethical, ethics violation does not appear to have any relevance to the Special Permit. If there is any way to handle the ethics situation separately, we would greatly appreciate it. Number three, I have personally asked Susann Tita to use her energy and expertise to help solve the situation. She declined. This conversation took place in front of her attorney. Number four, I would like to point out that Susann Tita’s allegation, alleged parking complaint, that should have been solved within five minutes has wasted approximately six months of your time, the ethics committee’s time, the Police time, the Association’s time, which is about a year and a half now, and taxpayer money. Once again, I respectfully request the Special Permit be granted to Hawaiian Acres so we can move forward with a family oriented community center that is safe and permitted. So, thank you so very much for helping us. Mahalo. MIYASATO: Mr. Olson. OLSON: Thank you. Jon Olson here. First, I would like to point out that the fact that this didn’t get on the agenda, the intervention motion. It’s left the Association representative really not prepared to respond to those allegations if they come up again without any lead time. I just want to point that out. Beyond that, I mean, I’m not really sure why they even came for a Special Use Permit. You have to understand that this community association is actually a property owners association. You must own property to be a member. The other thing that I will point out—with the exception of Road 8, which the County took through an MOU for emergency response 14 EXHIBIT H purposes, all of the rest of the roads, all of the property owners are tenants in common. It’s in their Deed. If Ms. Tita is unhappy with her road, she should get out there with her shovel and fix it. She owns it. As do all of the other members of the Association. Basically, the people who show up on Saturdays and Sundays are all property owners of basically what is a closed and private group. They are allowed to bring guests as you might have mentioned. So, you know, this is, this has gotten a little weird, frankly. The issue with the fire, the volunteer fire station? Well, it wasn’t supposed to have plumbing. It wasn’t supposed to have electrical. Somebody put it in, they took it out. The building was never intended to have either plumbing or electrical in it. So, and it was okay because the County provided the money to build the fire station. The County provided the money for the water tank for emergency response petition--purposes. So, all of those things that are being addressed here, the road easements there. They are easements. They’re not roads. Those are property easements owned by the property owners. They’re 40-foot wide, and the property owners determine to what width they are maintained. Some of them are barely 10-foot wide; some of them are not passable. Where the community, community association building sits, you have a full 40-foot wide easement. So, anyway, I hope something can happen. These poor people have just been through an awful lot here. Thank you. MIYASATO: Mr. Fulks. FULKS: My name is Ole’. I live at 16-689 Auli‛i Street, and well I don’t speak no legalese, but I was the—I would say for the first two years of the HARC or Hawaiian Acres Road Corporation’s existence, I was on the board. The second year, I was president. So, the road situation in Hawaiian Acres is not new to me. The farmers market? Well, I was a vendor there for quite a few years until it closed down, and there was hardly ever more than six vendors. It has never been a big market, and the vendors never made a lot of money. There wasn’t, that wasn’t the purpose of the market, to make money. It was to build community. That’s what we’ve been working on in Hawaiian Acres. That there, at the community center, building community. Now, as to the road being closed, at least for the time that the market was opened, the road was never closed, but if you know subdivision roads, you know, like they’re kinda of one lane a lot of times, and you gotta kind of pull over when somebody else comes along and wait for a second till they go by. I mean, that’s how we are there. That’s politeness. So, yes, Susann might have been delayed for a moment when someone else was coming along so she may be you know, had to wait for a minute and didn’t go, but the road was never ever blocked. You see, I had some other things, and now it’s flying out of my mind. Maybe I better just stop right there. Aloha. MIYASATO: Could I have Jamae Kawauchi and Susann Tita come up? You both are still under oath, so you can go ahead and testify. TITA: I appreciate Ole’ speaking his mind, but it was on two different occasions, the Police had to be called to ask him to directly move his truck from blocking the road deliberately. So, the roads are not 40-feet wide. As you can see, they are single lane, and when you’ve got cars on either side, you’re not gonna get through. It isn’t a moment you have to wait. It’s a while. And if it isn’t the cars that you have to worry about, it’s the kids or their pets. And they took it to a whole other level by actually putting that market right on the road so there were plants and things that they were trying to sell on the road. When I asked him and attended several of those 15 EXHIBIT H meetings asking them to please move that market back, put it in a different place, they refused. If anything, they accelerated blocking the road. There is no community relations. It is a group of about 15 people. They tried to take, take over our, the community association. It became very contentious, and it is the same group of people and they are not all residents, and they are not all landowners that are attempting to have a farmers market which brings in an element of problems, whether it’s blocking the road or the food situation where they bring the people from Kapiolani Park. It’s not an enhancement to our community. It’s not. And I wouldn’t go through the lengths that I have gone to, to try and get things done correctly which is bring the permit up to par first, and then address the farmers market in an organized fashion, rather than what’s going on. We’re gonna right back to what we had if this is approved. Tents on the road. Goods on the road. And a blocked road, and the Police Department being called every Saturday to clear it, and we’re gonna go through one year of this. We’ll go right back to filing complaints and the County’s going to have to come out and shut them down because they never bothered to address the permits. It is not going to change unless the County takes a position and follows the law that when the permit was expired, it should have been redone, and that’s what needs to happen. You have an illegal building with illegal activities. KAWAUCHI: You also have illegal parking. When we talk about a 40-foot road, it’s probably what the road is supposed to be but the paved section is again only half that, about twenty. OLSON (from audience): The paved section—(inaudible). MIYASATO: Excuse me— KAWAUCHI: So, the parking again doesn’t comply with the County Code. You got a request in the application for improvements including paving, gravel, parking areas, fence, playground area. Farmers market will take place on a playing field, 14,400 square foot space has ample space for 20 by 30 canopy tent to house vendors, musicians, market management table, independent vendor, 10 by 10 tents, up to ten tailgate vendor spots, and a vendor and overflow customer parking area. So, my understanding from the application is that they have designated 35 spots, 10 and additional 15 and then another 10 for overflow. So, if they are going to have up to 10 tailgate vendor spots, they’re not going to have adequate parking for the anticipated up to a hundred people that they’d lke to have at the market. You are going to have a traffic congestion problem. The Association has already informed Ms. Tita and I at their February meeting. They are not, they do not have the ability, nor the interest. This Board does not have the ability or interest to manage the traffic congestion in that area or to monitor the activities there. You will not have a private security group there to make sure that things are being handled appropriately. You’re not gonna have any traffic direction persons assigned to the area. They freely and openly talked about this. I’m not trying to put this out to you to say, you know, that they’re being disingenuous. I’m telling you the situation. One of the proposed means to address the letter submitted by the Police Department—the Police Department’s concern about traffic congestion and safety issues--wants to allocate a person to help with monitoring the traffic. The February meeting that Susann and I attended, the Board members discussed this. They don’t have the ability to do that. They can’t handle it. And, I don’t know if they want to take on the management of those kinds of activities and the liability. Susann’s already talked to you about the insurance issues. This permit, again, has lapsed in 1998. That’s 16 years. Your rules 16 EXHIBIT H specifically state they’re supposed to come before you within 90 days prior to the expiration of a permit before they can come back to apply. This is 16 years later. They haven’t complied. You’ve got a same building with no occupany permit. It’s a dwelling. I’ve seen it. I’ve gone to the location. I’ve seen the place. There’s unpermitted plumbing, the structure is not adequate to serve their purposes. It’s not that—Susann’s not against community. Nobody’s against community, but it’s gotta be done right or else people could get hurt, and when we talk about adequate roads, it’s already been testified that Susann’s been blocked. Well, what happens in the day that Susann, in using the only road she has to get in and out of her lot, has a serious medical condition, or her husband has a serious medical condition, or somebody in the neighborhood whose also only access is those roads, has a serious medical condition, and they’re blocked. And now you’re gonna add up to a hundred people with inadequate parking and parking spaces that don’t meeting County Code. They’re in violation of County Code, and their permit that was granted to them in 1995 states as a condition, that they’re to comply with all the County Code regulations, State laws. They’ve gotta comply with the rules just like everybody else, particularly if they’re going to take on a special use. And the special use they’re asking for today isn’t just to reaffirm a lapsed permit. It’s also to add on to additional uses. The farmers market is just one of ‘em. That’s the thing we’re talking about the most. They’re also saying that they wanna have other community activities there—dance classes, karate, kung fu—they want to have a lot of activities there. That’s fine, but just plan for it adequately. Come back with the permit, up to 2014 standards, that is going to make sure that the needs of the community and the health and safety and general welfare of the people in that Association are addressed and protected. So, you, you know, there’s, it says when the Association became aware of a need for Special Use Permit, an application was submitted to legitimize the building’s continued use as a community center. The Building Department has already stated that the building itself is not, has not received a certificate of occupancy so the use of a dwelling as a community center is a violation. So, they found that it’s an actually a violation to use that building in the way it is. So, its continued use as a community center ought not be legitimized. It ought to be updated. My understanding is that the Association has the fund and the resources to make these improvements. Susann can attest to that. So, if you give them this permit, they are not going to make these improvements. They haven’t. It’s just not demonstrated over 16 years that they’ve made the improvements that were specified in the original permit application. But if you make them, you deny the permit, and you make them come back for one, maybe at that point, they’ll decide to go forward because at that time, you are also enforcing the rules and the things that we all, everybody else has to comply with. If you don’t, they’ll just—there’s no reason for them to change the way that they use that place. None at all. Again, between the time that they got the warning letter for the farmers market, the time that they got this letter from the Building Department in November 2013, the only thing that they did, and it was because Susann brought it to their attention at the February meeting of this year, they took the electrical out, the unpermitted electrical out of the firehouse. That’s it. So, I think if you grant this permit, this is going to continue to be a problem, and you could have more problems. TITA: I see this, your— HENKEL: Excuse me— 17 EXHIBIT H TITA: cease and desist— HENKEL: Excuse me, you know, we want to act on this either for you or against you— TITA: Yes. HENKEL: --but any action has been delayed since last January, and I tell you that I’m greatly fearing that you guys are going sit there and say the same thing over and over until next January, so could you please wrap it up? You’re repeating yourselves. Excuse me. TITA: I see your distain for me so we are finished. HENKEL: It’s been a long day. MIYASATO: Yeah, go ahead, Corporation—go ahead. BRILHANTE: Thank you, Chair. William Brilhante again, Deputy Corporation Counsel on behalf of the Planning Director in this matter. As we noted, Ms. Tita has raised legitimate concerns regarding parking and safety issues that this Applicant needed to address and needed to be vetted during the application process. Again, this is a process, and I think you know the process has worked its way through in accordance to the requirements of both the Code as well as the Planning Commission rules for a Special Permit. Specific items were identified in the Planning Director’s Recommendation of approval. Specifically, Item No. 3 says that the Applicant shall secure and finalize all Building Permits for all existing structures from the Building Division, Department of Public Works, within one year from the effective date of this amendment, proposed amendment. All parking for the community association, building, emergency, shelter, and the farmers market shall be on the subject property. Parking shall be prohibited on Road 8 or Road C for these uses. The Applicant shall provide traffic control attendant (attendants) to actively manage traffic flow and parking associated with the farmers market so that vehicles do not park or back up onto Road C and/or Road 8. The Applicant shall provide signage indicating where vendors and visitors may park on site. Hours of operation for the community center shall be from 9 a.m. to 9 p.m. daily. The farmers market shall be limited to one day a week and shall limit the amount of vendors to 20. No amplification of music and such and so forth. So, I think the issues that are being raised by Ms. Tita here are being adequately addressed and have been adequately vetted by the Planning Department through this process. And, the other thing I wanted to just draw your attention to is that this is a Special Permit application, and the current designation of the land is Agriculture. And HRS 205-2(d)(15) which was legislation recently passed in 2012, specifically proposes that the Counties create Ag districts that shall include Ag based commercial operations. And, one of the three specific Ag based commercial operations is the operation of farmers markets, and I think farmers markets in a specific community in a specific residence is very beneficial to sustainability, to reducing traffic use— you know, the use of the residents to have to go to the grocery store, you know which would be miles and miles away. So, the intent of HRS 205-2(d)(15) was specifically to promote this type 18 EXHIBIT H of activity in a, on land that was clearly designated as Ag such as this one, and I just wanted to-- such as this property here. Thank you. MIYASATO: I’d like to bring up the Applicant. LEHNERT: Good evening. I’m John Lehnert, Secretary for— MIYASATO: Could you raise your right hand, please? Do you swear or affirm to tell the truth in this matter now before the Windward Planning Commission? LEHNERT: I certainly do. MIYASATO: Please state your name and residence. LEHNERT: My name’s John Lehnert. I live on 3 Road, near C, 16-1352 Ho Pue Street. MIYASATO: There was just mention of the unpermitted buildings and conditions that were laid out. LEHNERT: Yes, what happened there is I believe because of the gradual turnover of Board members, not always, every bit of information gets passed on, and by the time I came on the Board in 2004, nobody on the Board knew anything about the permit or that it had lapsed. There are, were several others who have also been on the Board ten years or longer and did not know anything about this lapsed permit until the complaint about the market. MIYASATO: So, with these proposed conditions of permitting the building and having all parking on-site, is that the plan for— LEHNERT: Yes, and as far as I can tell, there is plenty of room. We, most usually, when we did have market, we had four or five vendors and it was by far more a social event than a commercial one. And, I don’t know where this figure of a hundred people comes from. I have never seen a hundred people anywhere near that property. The most I’ve ever counted there was 48, and for most of the times that we had the market, I would guess maybe 25 people or 30 at the most were present at a time. And, during that time, we tried to expand the market, and we were not successful. We advertised through 4 or 5 different venues, and we offered free coffee and pancakes, and the market did not grow. So, I don’t see why it would grow, but we tried to provide for the possibility. MIYASATO: Thank you. Commissioners, any questions for the applicant? Thank you. We have one more testifier. Diane Winslow. 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? WINSLOW: I do. MIYASATO: Please state your name and residence. 19 EXHIBIT H WINSLOW: Oh, do I-- MIYASATO: It should be on— DARROW: In the mic—it’s on. WINSLOW: What? Hello, okay. Yes, I’m Diane Winslow, and I live near, I mean between F and G on 5 in Hawaiian Acres with, my daughter and I. And I, well, I’m—I just wanted to say a few things that, it, she’s talking about, I hope I can say this, but anyhow, there’s been people on the Board for the last ten years that have, have been very counter-productive to the success of Hawaiian Acres, and there’s a great move among people that are knowledgeable about this, to run instead of them, and to make the Acres a more productive farming, functioning, happy place. And, these people are just consistently—five out of the eight—just blocked all things, have kept, we don’t even know for sure, between five thousand and eight thousand worth of liability insurance spent, you know, out of the center’s money on themselves. Just themselves. I don’t, you know—and, the, one of the people is, well actually, maybe several of them are saying we can’t afford enough insurance to do a farmers market. When in my view, if you have a lot of insurance, you’re gonna draw people that are gonna create an accident for themselves. I don’t know. It just seems—I don’t think having a lot of liability insurance is going to enhance the farmers market function. Also, it was stated that the Police were always being called. Well, I’d like to point out that the Police were always being called by our friend here, who you know, nobody else is calling the Police. And, also, one thing we have at the center is across from the parking, which is horizontal into the center, there’s a large space which is used, has been used, by the County to park their huge big vehicles whenever, you know, when they were creating the road, and lately when they were doing, fixing wires and all that kind of stuff. So, though, when we had our informal farmers markets, there were people parking there. They don’t do it now, and we have—and oh, another little thing is the, this proposal that, for the farmers market that was incorporated, because we didn’t have two-two hundred and fifty dollars into the planning, you know that thing we needed, what was I going say. I lost my track--. Oh, that, that was gutted by this, these Board members. They took out the pieces which were extremely specific about how we were going to handle the parking before it was submitted to you. Oh, okay, anyhow, so that’s just—I’ve said something. Thank you. MIYASATO: Thank you. Commissioners, any discussion. If there is no discussion, I’ll accept a motion. HENKEL: Mr. Chair, I’d like to move that SPP 845, the amendment to Special Permit No. 845, to allow additional uses within the community center including farmers market, one year time extension to comply with Condition No. 4, construction timeline of the community center and volunteer fire station be approved. MIYASATO: I have a motion. Do I have a second? HEAUKULANI: I’ll second. 20 EXHIBIT H MIYASATO: Motion by Commissioner Henkel, second by Commissioner Heaukulani. Is there any discussion on the Motion? MOSES: Can I make a comment on that? MIYASATO: Yes, you can. MOSES: You know, it’s unfortunate when we live in a community together and people don’t treat each other appropriately and that’s, that saddens me, that—and the hope is, that everybody will come together and work together. I work in compliance. That’s my job. My job is about compliance, and so, I am hopeful that this amendment with the conditions by the Director clearly stated that the Hawaiian Acres Community Association will adhere to so that it will be a benefit for your entire community moving forward and not allow this permit amendment. Hoping to get all your permits up to date and not allow it to lapse. I just wanted to make that comment. MIYASATO: Any further discussion or comments? You can call the roll. DARROW: Thank you, Mr. Chairman. With that, we’ll take the roll call. Commissioner Henkel? HENKEL: Aye. DARROW: Commissioner Heaukulani? HEAUKULANI: Aye. DARROW: Commissioner Moses? MOSES: Aye. DARROW: And Mr. Chairman. MIYASATO: Aye. DARROW: The motion passes four to zero. The discussion ended at 6:52 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 21 EXHIBIT H