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HomeMy WebLinkAbout2014-09-18 Leeward Exh B (SSV 14-09) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT SEPTEMBER 18, 2014 SCV POOLS, SPAS, MASONRY INC. on A regularly advertised hearing on the application of behalf of Jimmy Rex Robinson (SSV 14-09) was called to order at 10:25 a.m. in the West Hawai‘i Civic Center, Community Center, Building G, 74-5044 Ane Keohokālole Highway, Kailua-Kona, Hawai‘i, with Chairman Brandi Beaudet presiding. COMMISSIONERS PRESENT: Brandi Beaudet, Collin Kaholo, Thomas Hickcox, Barbara Nobriga (until 10:55 a.m.) and Keith Unger (until 11:12 a.m.) ABSENT AND EXCUSED: Thomas Whittemore ALSO PRESENT: Duane Kanuha (Planning Director), Margaret Masunaga (Deputy Corporation Counsel), Jeff Darrow (Planner), Maija Jackson (Planner) and Noriko Sauer (Commission Secretary) And eight people from the public in attendance. APPLICANT: SCV POOLS, SPAS, MASONRY INC. on behalf of Jimmy Rex Robinson (SSV 14-09) Application for a Shoreline Setback Variance to allow the construction of a salt-water swimming pool, spa, concrete deck and 4-foot high pool security fence within the 20-foot shoreline setback area. The property is situated along the south (makai) side of the Kona Bay Estates private subdivision road, Kona Bay Estates Subdivision, Kailua-Kona, Hawai‘i, TMK: (3) 7-5-005:024. BEAUDET: Our second agenda item is for SCV Pools, Spas, Masonry Inc. on behalf of Jimmy Rex Robinson, Application No. SSV 14-09, the application for a shoreline setback variance to allow the construction of a salt-water swimming pool, spa, concrete deck and four-foot high pool security fence within the 20-foot shoreline setback area. Maija? JACKSON: Thank you, Mr. Chair. Good morning, Commissioners. The next application is a shoreline setback variance request. The property is located in the North Kona District along the Kona Bay Drive in the Kona Bay Estates Subdivision. You can see the property on the slide, outlined in red, towards the bottom of the slide here. Just to orient the Commission, off to the right side of the slide is Palani Road coming down into Kona, King Kamehameha Hotel is located in this area here, and then you have Kuakini Highway heading towards Kona Bay Estates. This gray area is the Old Kona Airport, and then Kona Bay Drive coming down into Kona Bay Estates. The property is currently zoned Single-Family Residential with a minimum lot size of 15,000 square feet. The entire Kona Bay Estates Subdivision is zoned the same. And then you can see the Old Kona Airport area, which is shown in gray, is zoned Limited Industrial. This is an aerial view of the property and surrounding area. You have Kona Bay Drive towards the top of the slide. You can see the property outlined in red. There is a single-family dwelling on the property at this time, which was built in 2002. And you can see most of the subdivision is built out 1 EXHIBIT B with single-family dwellings. Many of them have pools along the ocean side of their lots. You can also see in this photo there is a large rocky shelf between the water and most of the homes. The applicant is requesting a shoreline setback variance to allow the construction of a salt-water swimming pool, spa, concrete deck and four-foot high pool security fence within the 20-foot shoreline setback area. Most properties, as you know, normally have a 40-foot shoreline setback area; there are some exceptions in the shoreline setback rule that allow for a 20-foot shoreline setback area, if after you apply all of the building setbacks, the buildable area becomes less than 50 percent. So in this particular case this lot does qualify for a 20-foot shoreline setback because it is a somewhat small lot. The pool structure, spa and concrete deck would be located seaward of the single-family dwelling, and it would be located just mauka of a public access rock wall that’s about two feet high by two feet wide. This is a site plan of the property. You have Kona Bay Drive at the top, and then you can see the single-family dwelling closer to the road, and the rock wall running along the makai side. I highlighted the certified shoreline in blue, but it’s a little hard to see here; it’s located just makai of the rock wall. And then the 20-foot shoreline setback is this red line here. So you can see, this is the proposed pool, it’s kind of a jellybean shape, and the spa, and so the majority of the pool, spa and concrete decking would be located within the 20-foot shoreline setback area. This is a view of the subject property, looking east, so this is standing out on the rocky ledge area, looking back at the dwelling; you can see the public access rock wall just passed the sand before the naupaka hedge here. And then this is a view standing near the rock wall, looking back out towards the sea; so you can see a sandy beach area and then the rocky ledge. This is a view of the public access rock wall, looking south towards Kona, it’s a two-foot high by two-foot wide rock wall; so the proposed pool would be located in this general area here just off the left of the slide. And this is a photo provided by the applicant; you can see the grassy lawn area where the pool would be located, so the rock wall is just off of the slide on the left side. And this is looking north. This photo is looking south, and then again the proposed pool area would be in this location here. The Planning Director is recommending that the variance be denied because the proposed development does not meet the criteria for granting a hardship variance. The Shoreline Setback Rule, Rule 8, says that a variance may be granted by the Commission upon finding that the development meets one of the following hardship standards: Would the applicant be deprived of reasonable use of the land if required to comply fully with the Shoreline Setback Rule? No, the landowner would still be able to use the single-family residence on the property, which was built in 2002. There are many Single-Family Residential zoned properties throughout the island and many in Kona Bay Estates that are not developed with swimming pools, yet the landowners are still able to reasonably use their land for the purpose for which it’s zoned. Is the request due to unique circumstances that do not draw into question the reasonableness of the Shoreline Setback Rule? The answer to this is also no. The shoreline has moved 20 feet inland in this area between 1984 and 1999, according to certified shorelines that were done and certified by the Board of Land and Natural Resources. So there is landward movement of the shoreline, and several of the pools in the subdivision were built before the shoreline moved inland, and they were not, and therefore, were not in the setback area when they were constructed. The fact that other lots within the subdivision have been allowed to construct pools does not show hardship to the landowner, particularly when there is evidence the coastal processes are causing erosion and accretion, depositing of sand and boulders. The long-term trend will be for coastal erosion to increase due to increased rates of sea level rise. And lastly, is the request the best practical alternative that best conforms to the purpose 2 EXHIBIT B of the Shoreline Setback Rule? Also again, no. The purpose of the Shoreline Setback Rule is to protect the shoreline from inappropriate manmade structures or improvements, and there is clear evidence that coastal erosion and accretion is occurring in Kona Bay Estates; therefore, it wouldn’t be prudent to continue to permit swimming pools in the shoreline setback area. The best alternative would be to leave the property in the shoreline setback area in its current condition. And just to show you some of the evidence of coastal erosion and accretion in the Kona Bay Estates area, and this property in particular, this is a photo that was taken during a 2003 storm event. You can see the sea far out here, and then this is the rocky ledge area, and then this area here is where you saw the sand in previous photos. This is the public access rock wall, and it looks like the photo was taken from the deck of the house, so you can see storm wave water is coming over the rock wall into the property. This is a view looking south; again, you have the rock wall here, and then this is where currently there is a naupaka hedge, and then this is the area of the proposed pool. And just to give you some examples of how coastal processes are actively working in this subdivision, you can see that overtime, these photos were taken in May of 2013, you can see that waves come in, they take sand away and then they come back, another storm comes in and it deposits the sand back; so you can see there is a gap in the rock wall here between the sand and the top of the wall because the sand has been pulled out. And then this photo was taken a little over a year later; you can see that there is no gap, that the sea has deposited the sand back up to the top of the two-foot rock wall. You can also see some sand beyond the wall. And then this is the property just to the north; you can see not only depositing of sand on the property but also boulders that are likely tossed from the rock ledge during strong storms. That’s the end of the presentation. If there are any questions I’d be able to answer. BEAUDET: Commissioners, any questions or comments for staff? Thank you, Maija. Would the applicant or its representative please come forward? TANAKA: Aloha, Commissioner. BEAUDET: Please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Leeward Planning Commission? REPRESENTATIVES: I do. BEAUDET: Thank you. If you could please introduce yourselves, starting with you, ma’am. HOSMER: I’m Robin Hosmer. I’m with SCV Pools. TANAKA: I’m Neal Tanaka, independent planner that works with SCV Pools. ERENBERG: Steve Erenberg, SCV Pools. BEAUDET: Thank you. TANAKA: So, Commissioner, I’d also like to make the panel know that we have Ron Terry who is environmental analyst, who prepared the FEA for our shoreline setback variance, and if there is any questions, please feel free to call him up, and he’ll be happy to address those. Ron, would you raise your hand for me, please? Thank you. 3 EXHIBIT B So I appreciate you guys taking the time to consider our shoreline setback variance. As Maija has shown, the shoreline setback, excuse me, the shoreline has been certified at that fixed wall. And our represented client, Jimmy Robinson, he is a fulltime resident here in Kona. And Kona Bay Estates is a subdivision that leads itself to fulltime residents and mostly vacation rentals. And what we would like to say is that Jim’s request for a pool is really considered, in his opinion, and ours, and hopefully yours, a reasonable use of his private property land. Granted it is on the shoreline and he is subject to these conditions, however, we feel that it is considered reasonable. Something that we would like to bring up also is that in 2010, as recent as 2010, the Planning Commission has approved a shoreline setback variance for a pool, with the same conditions and the same setbacks in the same subdivision for construction within the setback. And so we are wondering how, with the same standard of hardship, and we are wondering how that hardship standard would not apply to our client with the same conditions as that in 2010, where the shoreline had been fixed at the makai wall. We feel that, with that, we hope that you can approve our shoreline setback variance. And we are open to any questions that the Commission may have with regards to our application. UNGER: Duane, are you familiar with this approval? Have you, do you have a copy of this approval? TANAKA: I do have a copy of the approval, yes. It’s Shoreline Setback Variance 10-0005. May I approach? (Secretary’s note: The copy was handed to the Chair and circulated among the panel members.) I’d like to state that Jim Robinson is not the original owner of the house, and did purchase it after it was constructed. So putting the pool in after is why we are applying for the shoreline setback variance. JACKSON: Mr. Chair, may I just add a little more information for everyone’s benefit? The page 2 of the Background Report does mention that the Planning Commission has issued one shoreline setback variance, which is the one that Mr. Tanaka is referencing, and denied one variance, for swimming pools in Kona Bay Estates since the new shoreline certification was done in 1999. The reason that we are recommending denial at this time, and we didn’t back in 2010, was because, you know, whenever we get a shoreline setback variance, we base our recommendation on what information we have at the time, and at that time we didn’t have evidence showing what coastal processes were occurring; you know, we had an idea because we could see sand on the mauka side of the wall, but without having clear evidence of how this was occurring, we didn’t feel we could make a negative recommendation at that time. So now based on, you know, the evidence we have of what occurs during storm events, the photos I showed you on this particular property, and also how sand is moved from one side of the wall to the other, we didn’t have the evidence back in 2010. If I recall correctly, too, the rock wall runs all the way along Kona Bay Estates, and there was, this same rock wall was in front of the other property that Mr. Tanaka is referencing, but the sand hadn’t deposited all the way up to the top of the rock wall; there was still quite a bit of space between the top of the rock wall and the bottom. So we didn’t have as much evidence that these coastal processes were affecting the particular property. KANUHA: Mr. Chairman? 4 EXHIBIT B BEAUDET: Director. KANUHA: Yeah, I just might also want to follow up with a comment with regard to a variance request, you know, whether it’s a shoreline setback or other structural variances, which used to come before the Planning Commission, you know, for setbacks, encroachments, etc. But many years ago, those processes were determined to be more of an administrative process, so we process those administratively; it doesn’t come before your commission. However, because of the requirements of the State Statutes, HRS, I think it’s 205, a variance for shoreline setback comes before the Commission for their consideration. Now, again, the criteria for variances, whether it’s administrative or whether it comes before the Commission, is kind of unique, and it’s basically a case-by-case application, you know; it’s what special or unusual about the circumstances that are happening on a specific property at that time, you know, what kind of hardship are involved, what kind of alternatives are involved, rather than if you give one down the street, that sets precedents for giving another. So it’s a unique process from that standpoint, and it’s literally a case-by-case process. And I think the record, in terms of variances, shoreline setback variances, given within this particular project, is showing that in some cases variances were approved and in others they weren’t. So as far as using precedents, the variance criteria is again really unique and it’s based on the specific circumstances as it relates to that specific application. BEAUDET: Thank you, Director, for bringing some clarity to the situation. I appreciate that. Would the applicant like to comment to that? TANAKA: Yes, please, we would like, yeah, we would like to comment. ERENBERG: I have two items. One would be the hardship part of it. Addressing a hardship part, everyone in Kona Bay Estates that we built pools for, including Ali‘i Drive, suffers, without a swimming pool, a substantial loss in the property because of the value. The other thing is is there is a narrow limited use to the property because they can no longer use the backyard at all, because there is a limited amount of entertaining, limited amount of basically use at all, outdoor-wise, especially on this property because of the way it’s structured. Again, several of the residents in Kona Bay are renting out their homes, and there is probably a difference of a thousand dollars per night for the people that do have pools and the ones that don’t. As far as the way this property is set up and it’s being used currently, as I said, that it creates not only for resale value but for anybody wanting to use the house, it’s almost like being boxed in and not being able to go outside. There is a deck outside currently, outside of the raised deck, and my question would be is is denying the use of the 20-foot setback because of erosion that’s taking place, there is currently a concrete deck back there along with stone, so my question would be is is what kind of a problem would a swimming pool present to building it within the setback at this point, because the structure would now strengthen and also eliminate further erosion on their property by being there than would by not being there. So those are my two key issues. I’m curious as to what the erosion factor that’s happening now, what difference it makes whether there is concrete or stone that could potentially wash away as opposed to what we are planning on doing that would actually strengthen at the property and secure it a little bit more than what’s currently there. HOSMER: I also wanted to address the photographs, because that was an unusual circumstance that they happened to go there on a day when the waves were very heavy. That is not the great majority of the time. 5 EXHIBIT B TANAKA: Also, with regards to the, obviously, it seems that erosion is a main concern for the Planning Commission, or the Planning Department, and 205A, and we can respect that. However, the makai wall is the fixed shoreline and, by definition of the fixed shoreline, erosion is typically curved by the fixed shoreline. Our swimming pool would be mauka of the fixed shoreline and not be fixing the shoreline even further. This evidence of these boulders coming over, it’s hard to say where those came from. It’s a possibility it came from the shelf. They could have already been on property. In addition to that, if that was a concern, those are on the private property of the owner, right? The International Building Code, the new IRC Residential Code that the Building Department administers and enforces, require security fences around swimming pools, and those security fences with their standards of four-inch posts, excuse me, gaps would definitely disallow boulders of this nature. And in an event that any rock of some sort were to come in, that would be on the responsibility of the owner. And as I mentioned, Jim Robinson is a fulltime owner there that addressing these types of issues would be immediate as opposed to a rental condition where that could be sitting for a long time and not addressed. HOSMER: Also, I think the issue of the sand being against the wall, I think that’s a variable issue in that that can change. Whenever you walk a shoreline, it changes almost every day depending on circumstances. And I think just one picture doesn’t show you really what’s occurred through the years. That sand could have been away from the wall a month ago, and then come back up against the wall. So I just would like to see a series of how really the sand has, went against the wall, consistently building up. And that to me is they are just showing a onetime circumstance. BEAUDET: Thank you for your comments. Director. KANUHA: Let me see, I don’t know how I’m going to say this. I don’t know where you folks were in 1984, but I negotiated this public access settlement for this property back then. And the reason the public access was determined that far back was because the certified shoreline was a lot farther makai and we thought there was going to be a significant, you know, it will, there was just a lot of room to accommodate for the shoreline processes, okay. So here we are, what, 30 years later, the shoreline is up on the wall itself, which was only supposed to be for public access. You know, there is all these other processes that are occurring. So, that, yeah, I’m just kind of giving you my perspective of the way I’ve been with this project, yeah. And that’s not the sole basis, I mean staff and I discuss how we are going to handle this because it’s a, you know, it’s a long-term issue for all coastal properties, right, all around Hawaii, all of the, up and down the West Coast, East Coast, any kind of island situations. And so I think we, from a long-term perspective, we are trying to reconcile ourselves with how we balance, you know, the situation up. But again, I’m just giving you some perspective of my experience from being there at the beginning and thinking there was going to be a lot, you know, it was, the access itself would have been significantly set back, you know, that was in 1984, you know. Fast-forward to today, and we have sand and stuff. And granted the way the situation is down at Kona Bay Estates, certain properties don’t have this kind of effects; it just depends which way the swell comes in, where the walls are in relation to, you know, other properties and, you know, other these natural effects. Back in ’84 we tried to address those as best as we could and, you know, again, fast-forward 30 years, and unfortunately we have this kind of a situation. TANAKA: Thank you for the input. BEAUDET: So I’d like to just point out, you know, as far as what is considered, what needs to be considered by the Commission, is not, I think you brought up specifically the erosion issue, but 6 EXHIBIT B included with that, you know, for consideration there is also shoreline conditions, surf and flood conditions, and the geography of the lot in itself. So, and I say this also to the Commissioners as well, you know, this application is for a specific lot and the conditions are specific to the frontage of the lot; not, neighboring properties are not part of other considerations to be dealt with for this application. So, Commissioners, do you have any comments or questions for the applicant? KAHOLO: If you put a pool in there and we have the winter storm, whose problem would that be, if the pool gets filled up with sand? The owner? The County? State? ERENBERG: It’s the owner’s problem. Actually, some of the pools we build, we use real sand inside the swimming pool. The bottoms of these pools now withstand several different natural finishes on the bottom of a pool, whether it’s pebble or whether, we have used real sand on the entranceway of a swimming pool. And the filters these days, you could actually, we are working on a pool presently on Ali‘i Drive; they used to fill up with seawater back in the 60’s and then they would drain it, so all it is a concrete shell. And I think the most important factor here is concerning the shoreline, meaning that this structure wouldn’t cause, it would actually cause less problems, almost like a retaining wall. So in other words the homes that are in Kona Bay Estates have footings around the house that support those columns, and I’ve seen some of them being get exposed, and the part of the swimming pool being there has helped eliminate the exposure and also help support the house from any further items that occur from the sea. But as far as your question goes, you can fill the pool up with seawater and throw whatever you want in there, and nothing is going to happen to it. You vacuum it out, and you don’t have to drain the pool, and that’s pretty much it. KAHOLO: Yeah, my concern is the sand in there. I just came from a conference in Maui, talking about erosion, and that’s one of the biggest problems we have in the state of Hawaii. And with erosion, what you look at the photo shots we’ve got out there, Mather Nature dictates what she wants to do with us; she can fill the pool with sand. And time after time again it becomes a liability to somebody. And my concern is this: if we say yes, we the Commission said okay, you guys screwed up. So that’s our concern right here now. We want to make sure that – the owner of the pool, even if we say yes or no, has the right to say okay who is going to clean it – I want to make sure that we are protected as Commissioners with the liability. HOSMER: He would give you the commitment that he would be responsible for it. KAHOLO: I’m sorry, I don’t have my other hearing aid, forgot the batteries. HOSMER: I said that he would give you the commitment that he would be responsible for any maintenance of the pool KAHOLO: If he sells the house, who is responsible? HOSMER: He would have to pass that. He would have to disclose that responsibility to the new owner. KAHOLO: That’s always the concern because people don’t normally add that to the lease when they sell it, you know -. HOSMER: Right, he would need to disclose that. 7 EXHIBIT B KAHOLO: They sell it as is, and the next person say, guess what, the County or State are liable for that. So, you know, that’s a concern of mine right here -. HOSMER: Right, I understand what you are saying. KAHOLO: Because that is the biggest problem. Because, coming off the conference, erosion is the biggest problem with the state of Hawaii right now, and this is what we were talking about in Maui in those classes. And when you look at those sand coming in with the wave, Mother Nature dictates now, that can create a problem for all the coastline with pools. So, you know, that’s a big issue. So we need to really think about it, you know, really look at the big picture what is our concern. You have the rocks out there. It doesn’t stop. When, you know, you’ve been in Kona, you live in Kona, when the south wind comes in with those breaks, it will bring a lot of sand in. Okay, that’s all I have. BEAUDET: Thank you, Commissioner Kaholo. Commissioner Unger. UNGER: Yeah, I had the same question to corporate counsel here. If we approve this, what is the County’s liability? If somebody got hurt, if the homeowner, even with a disclaimer, what is the County’s responsibility, if we approve this? And could this property owner come back and sue the County? MASUNAGA: You know, I would say, if it happened within the metes and bounds of the owner, it’s, the liability is on the owner of the property. Anybody could always sue the State, the County. I would certainly move to dismiss as a party, but, you know, as a practical matter, a lot of times when you have these issues, they will sue the owner, they will sue the State, they will sue the County. We would ask, you know, to, I can’t predict what the court would do, but in terms of, I would file a motion to dismiss, yeah. I don’t know if Mr. Brilhante has any comment or conflict with what I said. Bill? (Secretary’s note: Mr. Brilhante, counsel to the Planning Department, approached the table and spoke to the Planning Director. Commissioner Nobriga left the meeting at this time, at 10:55 a.m.) ERENBERG: Can I ask one more question, please? You’ve been addressing liability and you’ve been addressing problems with sand. You know, we are presently working on a pool and a spa that’s completely filled up with sand. I am really concerned about what your concerns are from a liability standpoint that they would be able to come back because of sand getting inside the swimming pool. I mean there are several pools there now where renters are abusing the pools and washing their feet off and going from the ocean into the pool. And three doors down there is a pool presently that where the setback it’s all sand in their backyard, and there’s sand around where the pool is; it’s completely surrounded by sand, and when the wind is blowing, the sand blows into the pool. And all of that has been taken into consideration before the building of the pool to eliminate any staining and from a maintenance standpoint eliminate anything that’s going to be a problem. As a matter of the fact a lot of people use sand filters, which use sand for filtering out the water. BEAUDET: Thank you. KANUHA: The Department’s corporation counsel generally agrees with the reading taken by Commission’s counsel that, you know, the County would probably not be directly involved in it. 8 EXHIBIT B We take the same approach in terms of any liability, but that would not prevent somebody else from dragging, you know, bringing the County into any kind of litigation; it may not be these folks, it may be successive buyers, etc. but, yeah. And I think that’s essentially what Margaret had indicated, yeah? BEAUDET: Commissioners, any further comments? Would the applicant have any further comments before I open the floor for public testimony? ERENBERG: The only other comment I would have is is the transfer of liability. Whenever we build a pool, you know, there are incidents that may happen, not with what we are discussing today but in building a swimming pool, and the liability is not necessarily always transferred over to the next owner along with the warranty; if it’s put into writing that the implied warranty in situations that occurred where at the time with the original owner that built the pool, not with somebody that purchased the house five or ten years down the road. And I also believe that some sort of statute of limitation is on that as well. TANAKA: So Steve, excuse me, Commissioner, but Steve did raise a question with regards to the County’s concern on sand coming into the pool. And if, I just wanted to clarify if the Commission’s major concern was with liability on who, on where that would lie, is that correct? BEAUDET: I believe that was a concern that was brought up. But it -. TANAKA: So I guess Steve specifically asked what was the Commission’s concern with sand entering the pool, and so I guess we are looking for the response. UNGER: I asked the question and I think I was satisfied with the response from the County. But in particular I did see boulders on the other side, so I’m thinking not sand but if boulders came onto the other side and by chance hit anybody, you know, that’s the only concern I have. But I think I’m, anybody can sue anybody, but I’m okay with the fact that according to corp. counsel it would be dismissed in relatively short order. So I’m okay with the response, hopefully. HOSMER: But I think the idea, too, of the boulders is that can happen at any property, so. BEAUDET: So I have in front of me that no one from the public has signed up for testimony. So for the record, is there anyone in the audience who would wish to testify on this application? Commissioners, I need a motion to close this portion of the public hearing. HICKCOX: So move. BEAUDET: Second? UNGER: Move second. BEAUDET: Thank you. So, Commissioners, any further discussions or thoughts that we may have? So, Commissioners, I would now want to ask for a motion for action. UNGER: I’d like to make a motion. BEAUDET: Okay. 9 EXHIBIT B UNGER: Well, I am the freshman commissioner here, so I would like to say that this is a gray area, and I appreciate where Duane is coming from and the Planning Department. And my first motion is going to be to approve this SMA permit (sic). So with that being said, I move that the application for SMA Area Use Permit (sic), SSV 14-09, be approved for the following reasons – and I think we all went back and forth with a lot of the reasons, pro and con. I appreciate the shoreline erosion setback issue. I appreciate the discussion on liability. I keep going back to what does this do to the public, what does this do to the environment, and who does it affect; for the most part it looks like the party that it mostly affects is the applicant. The applicant realizes that he is building, that they are building in an area that is susceptible to flooding, that is susceptible to erosion, etc. etc. What does this do to the public access in front of the property? Nothing, it is unchanged. What does this do to the erosion? Probably nothing, according to the Environmental Impact Statement, erosion is going to happen regardless if this pool is built or not. The applicant’s statement that it may actually help erosion, I don’t know, I’m not an engineer, that’s the first time I heard that, it makes sense. Back to the liability and to the issues of liability, this is on the applicant, this is on the applicant and affects the applicant most directly as far as the negative. So that being said, and I think there is enough gray area here. We are not supposed to consider the fact that there are 20 other pools there. The fact is there are 20 other pools there; adding one more pool in this area to me seems like a reasonable use of the property. Does it create a hardship on the property? Hardship is definable. It’s not a matter of life and death, no, but does it create a hardship? I think so, at the point where adding a pool would increase value, other properties have the pool in the area, to a certain extent. Are there circumstantial evidences? Probably yes, the shoreline did change. Nobody anticipated it. It did happen. So for going down the checklist of hardships, I would say yes. Again, though, it’s a gray area. That’s my mana‘o. And that is the reason for my motion, with all due respect to the Planning Department. BEAUDET: I’d like to ask for a second. Can I get a second on the motion? KAHOLO: Second. BEAUDET: It has been moved by Commissioner Unger and seconded by Commissioner Kaholo for the approval of SSV 14-009. As part of the discussion before we vote, for the record, I need to state that Commissioner Nobriga has left, and in order for this motion to go forward, we would need a unanimous vote, or four, yeah. JACKSON: Mr. Chair, I’d also like to request, since the Commission is considering approving this, the Department would like to recommend some conditions. So perhaps, the Commission could recommend continuing this so that the Department has time to draft conditions of approval with the reasons stated for approval by Mr. Unger. BEAUDET: I would agree with that. Do we need a motion for continuance? JACKSON: I think you have to take the first motion first, but we’d like to be able to come back, and -. BEAUDET: Okay, so we vote now and then -. JACKSON: Present the findings and conditions and then have the Commission vote. 10 EXHIBIT B BEAUDET: Okay, I agree with that. HICKCOX: Mr. Chair? Mr. Chair? BEAUDET: Yes. HICKCOX: Mr. Chair, I believe that we have a motion in front of us now, and it has been seconded. So at this juncture I believe we need to satisfy that particular portion -. BEAUDET: Correct. HICKCOX: And then move forward with -. BEAUDET: Then move forward with continuation. HICKCOX: Yes. BEAUDET: Yeah. So staff? JACKSON: Okay, the motion before the Commission is to approve the shoreline setback variance. Commissioner Unger? UNGER: Aye. JACKSON: Commissioner Kaholo? KAHOLO: Mr. Chair, I have a question. BEAUDET: You’ve got to vote. MASUNAGA: Yes or no. KAHOLO: It’s a hard question for me (inaudible). BEAUDET: You seconded. KAHOLO: I know I did. Aye. BEAUDET: Into the mike. KAHOLO: Aye. JACKSON: Commissioner Hickcox? HICKCOX: Nay. JACKSON: Commissioner, Mr. Chair? BEAUDET: Aye. 11 EXHIBIT B JACKSON: Okay, the motion does not carry. (Secretary’s note: Commissioner Unger left the meeting at this time, at 11:12 a.m.) HICKCOX: Mr. Chair, would the Commission now entertain a motion to continue this matter until such time as the, oh, we just lost the quorum. I’m sorry. BEAUDET: We just lost the quorum, so. HICKCOX: Pardon me. We cannot take any further action. BEAUDET: So due to the fact that we just lost quorum, I believe the next step would be for the continuation of this application when we have quorum, and we would have to revisit the motion. So as far as this application, this agenda item now is closed, and we cannot pursue any type of decision because of the loss of quorum. So we’ll have a continuum. But what we can do for the other agenda items today is we can accept public testimony; we just cannot make any decisions. So as far as the application for the shoreline setback, that item is now closed, and the Planning Department will be in contact with you shortly. JACKSON: Mr. Chair, just for the applicant’s information, we will reschedule this for the October th 16 hearing. TANAKA: So there has been no decision rendered from the Commission, is that correct? BEAUDET: Correct, correct. It will be agendized within the October meeting. TANAKA: Okay. Well, I’d like to thank the Commission on your time on considering our application. The discussion ended at 11:13 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 12 EXHIBIT B