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HomeMy WebLinkAbout2014-11-06 Hearing Transcript-Scott Watson SMA 450 _Reconsideration_ WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT NOVEMBER 6, 2014 SCOTT WATSON A regularly advertised hearing on the motion for reconsideration by (Amend SMA 450) was called to order at 9:32 a.m. in the County of Hawai‘i Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i with Chairman Myles Miyasato presiding. COMMISSIONERS PRESENT: Myles Miyasato, Charles Heaukulani, Gregory Henkel, Donald Ikeda, Raylene Moses, and Stephen Ono. ALSO PRESENT: Duane Kanuha (Planning Director), Margaret Masunaga (Deputy Corporation Counsel for the Windward Planning Commission), Daryn Arai (Planning Program Manager), Jeff Darrow (Staff Planner), Maija Jackson (Staff Planner), Christian Kay (Staff Planner), and Sarah Hata-Finley (Commission Secretary). And approximately 20 people from the public in attendance. APPLICANT: SCOTT WATSON (Amend SMA 450) Applicant’s motion for reconsideration of decision by Windward Planning Commission, at its September 4, 2014 meeting, to deny applicant’s request to amend Condition 11 of Special Management Area (SMA) Use Permit No. 450 to change the building setback point of reference from the top of the sea cliff to the March 4, 2010 certified shoreline which is located makai, or seaward, of the sea cliff, and applicable to the applicant’s lot only (Lot 23). The motion for reconsideration is made by the Applicant due to new information that did not exist or was unavailable at the time of the September 4, 2014 hearing, specifically, the Applicant’s attempt to secure a quitclaim deed from Continental Pacific, LLC to the County for a 10-foot wide pedestrian public access shoreline easement over the so-called remnant parcel makai of Lot 23. Lot 23 is located at the end of Sugar Mill Road, just east of the Sugar Mill Road/Beach Road intersection, Pepe‘ekeō Point Subdivision, South Hilo, Hawai‘i, TMK: 2-8-008:151. MIYASATO: Item No. 5 on the agenda, Scott Watson. BARLOW: Good morning, I’m Betty Barlow. I live in the Pepe‛ekeō plant subdivision, Lot 2, 28-3182 Beach Road, and I’m here to ask you to approve this finalization of Scott’s lot. MIYASATO: Excuse me, could you please— BARLOW: Yes? MIYASATO: I don’t have your name yet. BARLOW: What was that? 1 EXHIBIT C MIYASATO: Hold on one second. HATA-FINLEY: You didn’t sign up. BARLOW: I’m kind of hard of hearing. I’m having a hard time hearing anybody. MIYASATO: Okay, do we have Ingrid Nishimoto, Ana Cahill-- CAHILL A. (from audience): Right here. MIYASATO: Would you please come forward? Ed Cahill and Bo Reipurth, please come forward. Could you all 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? CAHILL, E: I do. NISHIMOTO/CAHILL A./REIPURTH: Yes. MIYASATO: Each of you will have three minutes to testify. We’ll start in the order that I called you up. Ingrid Nishimoto, could you please state your name and residence? NISHIMOTO: My name is Ingrid Nishimoto, and I live in Nīnole, Hawai‛i. I’m here today because of, of the land. It was designated as a Special Management Area, an SMA parcel. And, this means that the land is to be held in trust for the people by the laws of the State of Hawai‛i, and it was deemed to be special. Before my grandson was born, I knew he would be special. I didn’t see him. I didn’t get to see his first smile before I already knew he was special. This land is the same. It was special before anyone decided to come and buy it and develop it. There were rules and regulations that were in place when the land was purchased, and yet the developer has chosen to put in his own special ideas for that land. Trees were harvested and for a Special Management Area, you can only cut down 50 percent. Most of the trees were removed from that, that property. There were property lines and boundaries when he bought the land. He decided to go against that as well, and now we’re here again, another day, to find out what he can do so since he already put something in place, he’s trying to figure out how he can maneuver in among the laws that we have set for him to follow. And he hasn’t followed them. And, I’m here to say that it’s not the developer who’s special. It’s the land who is special, and that land, the rules have been broken, and I don’t think that’s it’s fair for those of us, the people of Hawai‛i, to have to sit back and see someone else come in with money, with ideas, and they take over and put in place what they think should be done. It’s the laws in place already when that land was purchased. At the end of yesterday—of Tuesday’s election—there was one commentary on the news that said, that before it used to be a country where people elected politicians, but now it has become the politicians and greedy investors who are coming in. And they are just bantering and manipulating the laws to get what they want. And those people like us, the regular people living along the Hāmākua Coast, we don’t have the deep pockets. We don’t have all the lawyers. But we do have the laws of the State of Hawai‛i, and I think they need to be followed in this development. Thank you. 2 EXHIBIT C MIYASATO: Thank you. Commissioners, any questions? Thank you, if not, we do have the Applicant—he’s here now, so I will let him do his presentation first and then I will call back for public testimony after, okay? So, you all can have a seat. Thank you. Will the Applicant or representatives, please come forward. MOSES: What’s going on? MIYASATO: He’s not ready. MASUNAGA: If he’s not ready— IKEDA: If he’s not ready, why don’t we continue— MASUNAGA: --we could, no, we could hear the testimony. IKEDA: Let’s hear the testimony. MIYASATO: Okay, the Applicant is—okay, we can continue with our public testimony. Can we have Ana Cahill come forward. Yeah, sorry about that. The Applicant is waiting for his partners. You have three minutes— CAHILL A.: Good morning— MIYASATO: --Could you please state your name and residence? CAHILL A.: Yes sir. My name is Ana Cahill. I live in Pepe‛ekeō. My husband and I are building a house in Onomea, and we were recently taking a walk through Pepe‛ekeō Point, and we discovered the shoreline access that Mr. Watson created. And, we walked through it, and we were amazed. We thought wow, this is really nice. It’s, he’s created an access where you can walk down to the shore and there’s a picnic table there. Very nice, relaxing atmosphere. Great place to watch the whales, and we really don’t have access like that around this area where you can comfortably without, you know, breaking your neck, going down rocks to get down to the shoreline. So, we really appreciated that access that he’s created, and we hope that he’s allowed to continue with his project. He, we’ve known him for many years. We, he builds quality homes, and we believe that, that would be an asset to the community to have that shoreline access preserved. Thank you very much. MIYASATO: Any questions, Commissioners? If not, Mr. Cahill. CAHILL E.: Hi. My name is Ed Cahill, and I’m basically here to second the motion. We’re very much in favor of the shoreline accessibility, and we are here to express that to you all. I really don’t need to say anything further about that other than Scott created a very nice access there, and we hope somehow, someway it can remain an easy access for the public. Thank you very much. MIYASATO: Commissioners, any questions? Thank you. 3 EXHIBIT C CAHILL A: Thank you. MIYASATO: Mr. Reipurth? REIPURTH: My name is Bo Reipurth. Does this work [referring to the microphone]? HATA-FINLEY: Yes. REIPURTH: Okay, my name is Bo Reipurth, and I live at Lali Street up on the Hāmākua Coast, and I’d like to support the amendment of SMA 450, rule 11, to allow the public access realignment. The Planning Department has promised to the public that the community would have access to the shoreline, and the Planning Department agrees that the new access is much superior to the old one that is unusable. The new access has been used by the public for the past two years, and I myself used it. I must say that it is beautifully done with a large public parking lot made on Scott Watson’s own property. The new public access is maintained and kept nicer than many of the County parks, and I may add, at the expense of Scott Watson himself. I’m a neighbor to Scott Watson. I have come to know him over the years. He’s a dynamic and very hard working man. Through the labor of his hands, he’s creating jobs and wealth for Hawai‛i. Taxes on the property is currently $200 per year. Once the new development will be finished, the County will get a lot more money in increased property taxes. It is through hard work of people like Scott Watson that our island will prosper. I’m not trying to say that there have not been any issues in this whole process. I recognize that, but they all have been resolved in the agreement that have been worked out between the Planning Department and Scott Watson. All that is now needed to move forward is the approval of the Commissioners. In short, in my view, the realignment is a win-win for everybody involved. MIYASATO: Thank you. Commissioners, any questions? Thank you. Could I have Betty Barlow and Nathan Buell come forward? Could you both 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? BARLOW: I do. BUELL: Yes sir. MIYASATO: Ms. Barlow, you may go first. Please state your name and residence. BARLOW: Betty Barlow, address is 21-3182 Beach Road, Pepe‛ekeō Point, and I just want to add my two cents worth to support the approval of this. We’ve been waiting for years, and even though I live in the development on the ocean front, I often go down to Scott’s lot because it’s like sitting on a mattress, that special grass he put in. So easily accessed. I rarely come home or leave the development that there isn’t at least one to five cars outside the gate availing themselves of that beauty—tourists, locals, everyone. And I’d just like to add my two cents that 4 EXHIBIT C this get finished since it seems to be in the final stages so we can continue on and have a beautiful house, beautiful access for everyone to enjoy. Thank you so much. MIYASATO: Any questions Commissioners? Thank you. Mr. Buell. BUELL: Sorry, I’m not— MIYASATO: Could you please state your name— BUELL: Nathan, Nathan Buell. I live in Hawaiian Acres. Me and my wife, Sina, own a natural stone importing business by the name of Malosi Tile and Stone. Just here to testify that I think projects like this are good for the community. I have Polynesian children that I plan on passing my company on to, and projects like this will help my company grow. I think what Scott did down there was very good for the aina. It allows for me and my braddahs to go holo holo down there with no problems. We park there out front. We don’t have to worry about our cars getting jacked. I just think it will benefit everyone. I realize that there are some emotions running high with this, but I just ask for resolution and for some way for the two sides to come together and maybe find a way to work this out. That’s all I have to say. Thank you. MIYASATO: Any questions, Commissioners? HEAUKULANI: I’ve got a question. You know, you mentioned it being good for the aina. Did that also include building into the setback? BUELL: I’m not a builder, sir, so I don’t— HATA-FINLEY: Mic please— ARAI: Microphone-- BUELL: I’m not a builder, so I couldn’t answer that. HEAUKULANI: I’m just trying to clarify what you mean by these— BUELL: --Well, I think any time you care take the aina, it’s good and the property down there before compared to now, there’s been a change for the positive and that’s all I was trying to point out. HEAUKULANI: Change for the positive because now you can get down to the water? Is that what you’re saying? BUELL: No, just the land’s cleaned up, and yes, it’s easy, easily accessible for the people who live in that area. HEAUKULANI: My concern I guess is building into the setback. You would agree with me that that’s not good for the aina. I mean there’s a reason that the setback— 5 EXHIBIT C BUELL: I couldn’t agree or disagree with you, sir, because I don’t know anything about— HEAUKULANI: Thank you. BUELL: --that. BARLOW: Can I just add something or no? MIYASATO: No, I’m sorry. MASUNAGA: No, unless Charlie wants to. MIYASATO: You need to be called up by a Commissioner. BARLOW: What was that? MIYASATO: You need to be called up by a Commissioner. BARLOW: Oh. All right. MIYASATO: Thank you. BUELL: Thank you. MIYASATO: Do we have anymore public testimony? Where is— AUDIENCE [Akiko Masuda]: Do we have to sign up? MIYASATO: Yes. MASUNAGA: Yes. AUDIENCE [Akiko Masuda]: Is it too late to speak on an issue that was earlier— MIYASATO: Anyone else signed up? HATA-FINLEY: She didn’t sign up— MIYASATO: Okay— HATA-FINLEY: --She didn’t, I asked her. MIYASATO: Okay, could the Applicant and representative please come forward? 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? 6 EXHIBIT C OLYMPIA/WATSON: Yes sir. MIYASATO: Please state your name and residence. OLYMPIA: My name is Gary Olympia. My residence is San Jose, California. MIYASATO: Yeah, go ahead. OLYMPIA: We had indicated to Daryn that neither Scott or I were going to speak today, only Steve Strauss, our attorney, and he is on his way. We left together. There’s some road work that’s, that’s stopped us. I apologize. I thought we were fifth on the calendar, and as you know, last time, we were here for about 6-7 hours, and you guys were here for about ten, I think, but he’s on his way, and we were not going to speak. You’ve heard us. He will discuss the new evidence and the rationale, and I would very much appreciate it if you could wait. He’s on his way. MIYASATO: Commissioner Henkel. HENKEL: In consideration for Mr. Strauss, I was wanting to consult with our Corp. Counsel. Could we do a quick executive session? MIYASATO: I need a second— IKEDA: Second. MIYASATO: We’re going into executive session. MASUNAGA: But you need to state— AUDIENCE [Pat Tummons]: You need to state a reason. HENKEL: I would like to move that we move into executive session so that I could consult with Corp. Counsel about a legal matter. AUDIENCE [Pat Tummons]: I think it needs to be more specific. MASUNAGA: --oh wait— HENKEL: --A procedural legal matter— MASUNAGA: Wait, Mr. Strauss is here. STRAUSS: Good morning. HENKEL: I withdraw the motion. 7 EXHIBIT C MIYASATO: Withdraw the second. Commissioner Ikeda, do you wish to withdraw the second? IKEDA: I withdraw the second. MIYASATO: Motion withdrawn. 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? STRAUSS: I do, Mr. Chairman. MIYASATO: Please state your name and residence. STRAUSS: My name is Steven Strauss. I’m an attorney here in Hilo. My residence is located at 29-2173 Old Māmalahoa Highway in Hakalau. MIYASATO: You can proceed. STRAUSS: Thank you, Mr. Chairman. Good morning Commissioners. Good morning, Mr. Ikeda. Welcome to the Commission. Also, good morning to you, Mr. Kanuha and to Corporation Counsel, I should say Judge Masunaga. MASUNAGA: Not yet. STRAUSS: Not yet. This matter is for reconsideration of Applicant’s request to amend Condition No. 11 of Special Management Area Use Permit No. 450. Following the hearing held September 4, 2014, Applicant received new, previously unavailable evidence about part of the proposed public access realignment. I’ve handed out copies of the original sales agreement between Continental Pacific and the former landowner, Richard and Virginia Alderson, and I understand that Mr. Alderson has also presented testimony today, written testimony. This agreement was made before the SMA Use Permit was granted and before the subdivision was finalized, and if I, if I could draw your attention to a photograph showing the configuration of the property and also the proposed public access realignment. You may have seen this photograph before it was part of the presentation of the County Planning Department in July 2013 to the rural South Hilo community and dealt with an attempt to gauge potential community support for the public access realignment. The existing realignment as shown in the photograph includes what’s identified as Parking Easement P-5, the area outlined in yellow and the green area along a portion of the shoreline, PA-easement, that’s public access easement P-14a. And, during the course of the proceedings in September, Mr. Kanuha raised some concerns about the portion of the public access, proposed public access that the Applicant was willing to provide to the County that actually reaches the shoreline and connects this all up and makes it possible. It’s our position, and it appears as a position of the County Planning Department, as expressed in documents that are already of evidence, that the existing easement, although may approach as the shoreline in terms of the shoreline cliff, does not extend along this ramp that Mr. Yuen was not even aware of at the time that this SMA permit application was being sought, and so therefore was not included in any kind of consideration for public access. 8 EXHIBIT C The agreement is important because it shows that there was no remnant parcel that could interfere with the new easement that the Applicant is willing to convey to the County to make it easy for the public to travel to the shoreline. Under the original agreement, the one that I just handed out to you, Continental Pacific was required to survey the corners of Lot 23, and also Lot 20. Lot 20 was no longer part of that agreement after continuing negotiations, but Lot 23 was this parcel, the parcel that was sold. Continental Pacific undertook and promised to survey the corners and also to identify the building envelope for approval by Mr. Alderson or his successors. This they did not do. And, if you refer to the agreement on Page 3, Item H, and on Page 4, Item J. It also required that the foundations, the existing concrete foundations which were located here, here and over here, and you may recall from your site visit, which remain in place, so these foundations which remain in place really allowing only one place for a building envelope where the house was, residence was located, and has created the, some of the controversy that arose here. There was no other place really to put the property, keep these foundations in—put the residence, keep these foundations in place and to still comply with the terms of the agreement. There’s no record or document supporting any claim by anyone else to the so-called remnant parcel which extends down to the ocean, and as noted previously in prior testimony, the deed for the property includes a seaward boundary. According to a 2002, and maybe Mr. Ikeda, a little background—according to a 2002 certified shoreline, the shoreline was established up at the-- what was known as a pali or a second pali and did not extend all the way to the actual shoreline, and that was in part because it was so overgrown that it wasn’t surveyed, properly surveyed. And, so that essentially cut off our—it cut off public access. And that was not the intent of the Planning Commission. It was not the intent of the Planning Director, but that was the result of what happened by the lack of the survey. Because Continental Pacific nor anyone else besides the landowner has a claim to the so-called remnant parcel, Applicant is free to convey an easement all the way to the shoreline, and Applicant will also agree as a condition of any of the amendment that’s sought here, to indemnify the County from any challenge to grant of the public easement. And, Applicant’s position is consistent with the written testimony of former Planning Director, Chris Yuen, that rd was submitted September 3, 2014. The Applicant is also willing to include the changes proposed by Mr. Yuen to the permit amendment in his September 3, 2014, testimony. As modified, this proposal greatly serves the public interest. Applicant noticed that in the Background Report, it’s already in evidence, at Page 6, in the Planning Commission hearings on SMA Use Permit 450, the Planning Department notes the primary concern expressed by the neighbors, fishermen, and the general public was ensuring the safe, public shoreline access. And, that’s what this amendment accomplishes, and it doesn’t exist now. Many may express the same desire today. Some have expressed the same desire in community meetings referred to in July and also in their testimony before this Commission. The proposed amendment makes this concern, makes this desire a reality. In the Background Report at Page 9, the Planning Department notes that in the July 2013 public meeting at which this was part of the presentation and this I’m referring to the photograph in 9 EXHIBIT C front of you, the public expressed similar support for realignment of the public access, which would be a condition of this amendment to the Use Permit. Third, the grant of the proposed amendment is supported by the Planning Department’s May 6, 2013, agreement with Applicant signed by the former Director, BJ Leithead-Todd, which recognizes that the proposed realignment which allows for the public to travel along a concrete driveway along the shoreline cliff edge for this portion in a safe manner and actually down the ramp to the shoreline itself was a measure and was a, recognized as a substantial improvement over the existing limited public access. Fourth, the grant of the proposed amendment will settle the present lawsuit with the County over conditions of the SMA, the existing SMA Use Permit. So, that’s what I have in terms of presentation today. I’m, I know that we’re on a, it’s a motion for reconsideration, it’s limited. I’m available to answer any questions that you might have. MIYASATO: Thank you. Before we ask any questions, I would like to acknowledge that Commissioner Ikeda and Commissioner Ono, who wasn’t present at the first hearing, that you have reviewed all the minutes and exhibits, that were presented. ONO: Yes. IKEDA: Yes. MIYASATO: Thank you. Commissioners, any questions for the Applicant? HEAUKULANI: I’ve got a question. Oh, I’m sorry-- HENKEL: No, go ahead-- HEAUKULANI: Steve, I appreciate that information, but you’re approaching this from the backside, right? This is what your client proposes to give back in return for us allowing or overlooking the fact that he violated the terms and conditions of his permit. STRAUSS: I think you asked a similar question before, and I tried to point out, and I don’t know if I did it effectively, that at the time that the, the residence footprint was created, it was with County approval. Was with the approval of the Planning Department, it was with the approval of the Building Department, and the existence of, of Condition No. 11 of 450 was only belatedly brought to the attention of the Applicant by the Planning Department which did not even consider it at the time that it first considered this application. So, when you say violate, I would say, I would agree that in a technical term, but the intent was to comply with all known County requirements and that’s what they did. It was only later on that the Planning Department pointed out and became aware in discussions concerning where the setback should be located of the condition of SMA No. 450. HEAUKULANI: When did your client first obtain a copy of Use Permit No. 450? 10 EXHIBIT C STRAUSS: I don’t have the exact date with me, with me, but it was well after construction had already started for the, for the footprint. HEAUKULANI: That’s kind of my problem. Why is that? STRAUSS: Because it was not part of the CC&R’s. HEAUKULANI: No, Steve, I don’t mean to cut you off, but building on that shoreline required an SMA permit. STRAUSS: Yes, and that’s what was applied for, and at the time that it was applied for, for a minor permit, the County Planning Department did not bring this setback issue to the attention of the developer. In fact, they applied a different setback. So, if the County didn’t know or wasn’t aware of it, it’s hard for me to understand how you would fault the Applicant which relies on the County to identify and make compliance with its own rulings. It wasn’t part of the CC&R’s. It wasn’t part of the title report. It wasn’t part of the subdivision approval. It was a separate document. And, the County wasn’t aware of it. Otherwise, they would have cited it at the time, and we would not have wasted a year or more in dealing with this process. That’s where this second set of setback rules came from, not what was first originally approved by the County. It wasn’t provided by the seller of the property either. KANUHA: Mr. Chairman? MIYASATO: Go ahead, Director. KANUHA: I think a procedural point of clarification here. The subject before the Commission today is just the reconsideration, not to you know re-argue the case at this point in time, so it’s, it’s, the Applicant’s motion is just for reconsideration of the Commission’s actions at the last meeting, and in support of that, he’s provided information. So, I think that’s all the Commission has to determine, whether or not this new information is relevant to their decision the last time, and then proceed, okay. STRAUSS: I would agree. Thank you, Mr. Kanuha, and this, I believe the information we provided is, directly addresses one of the concerns that you raised, is whether that we would be able to in fact provide a useable grant of easement to the County, and we believe that it was, it’s not subject to any kind of reasonable challenge, and if there is a challenge, we’ll indemnify the County. We have the means and the ability to do that. In the meantime, the public will enjoy the public access. KANUHA: And, again, Mr. Chairman, that’s you know, that’s the sole motion on the table for your consideration today. MIYASATO: Thank you, Director. Commissioners, any other questions for the Applicant? If not, thank you. STRAUSS: Thank you. 11 EXHIBIT C MIYASATO: Commissioners, any discussion? IKEDA: Mr. Chairman, I move to enter into executive session to consult with the Commissioners’ attorney on questions and issues pertaining to Commission’s powers, duties, privileges, immunities, and liabilities, pursuant to HRS Section 92-4 and 5. HENKEL: Second. MIYASATO: All in favor. COMMISSIONERS: Aye. MIYASATO: We’re going into executive session. At 10:04 a.m., it was moved by Commissioner Ikeda and seconded by Commissioner Henkel that the Commission go into executive session to consult with its attorney regarding questions and issues pertaining to the Commission’s powers, duties, privileges, immunities, and liabilities, pursuant to Hawai‘i Revised Statutes Sections 92-4 and 92-5. A voice vote was taken of all Commissioners present, and motion carried with six aye votes. At 10:06 a.m. the Commission went into executive session. At 10:24 a.m., it was moved by Commissioner Ikeda and seconded by Commissioner Henkel that the Commission go out of executive session. A voice vote was taken of all Commissioners present, and motion carried with six aye votes. MIYASATO: Okay, I’d like to call the meeting back to order. Does Planning have any statements? Staff, is any—with Daryn. HATA-FINLEY: No. MIYASATO: No? Okay, Commissioners, any discussion? If there’s no discussion now, I’ll accept a motion. Do I have any motion on this reconsideration? If there’s no motion on this application, the motion for reconsideration is considered denied. The discussion ended at 10:27 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 12 EXHIBIT C