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HomeMy WebLinkAbout2015-06-04 HearingTranscript - Arrow of Oregon Amend SPP09-076 WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JUNE 4, 2015 ARROW OF OREGON/HAWAI‛I, LLC A regularly advertised hearing on the application of (Amend SPP 09-076) was called to order at 9:26 a.m. in the County of Hawai‘i Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i with Vice Chair Raylene Moses presiding. COMMISSIONERS PRESENT: Raylene Moses, Donn Dela Cruz, Charles Heaukulani, Gregory Henkel, and Donald Ikeda. ALSO PRESENT: Duane Kanuha (Planning Director), Danny Patel (Deputy Corporation Counsel for the Windward Planning Commission), Amy Self (Deputy Corporation Counsel for the Planning Director), 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 13 people from the public in attendance. APPLICANT: ARROW OF OREGON/HAWAI‘I, LLC (Amend SPP 09-076) Application for an amendment to Special Permit No. 09-000076, which was approved to allow a cinder and rock quarry operation on 5.003 acres of land situated within the State Land Use Agricultural District. The amendment will add 8.009 acres for a total of 13.012 acres of land. The properties are located northwest of Mahimahi Drive, between Lurline Lane and Liliana Lane within the Hawaiian Ocean View Estates Subdivision, Kahuku, Ka‘ū, Hawai‛i, TMK: 9-2- 148:005, 006-010, 015, 016& 036. MOSES: Okay, second item on the agenda, applicant, Arrow of Oregon/Hawai‛i, LLC. Staff presentation? Thank you, Jeff. Go ahead. DARROW: Okay, our next applicant is Arrow of Oregon/ Hawai‛i, LLC. They’re requesting an amendment to their existing Special Permit, Special Permit No. 09- four zeros, 76 [09-000076]. For reference, the area of this subject application is within the Hawaiian Ocean View Estates Subdivision. This is located in the Ka‛ū District of Hawai‛i. For reference, running through the middle of the map, we have again Hawai‛i Belt Road. And, again, for reference, this is the, the mauka subdivision is called the Hawaiian Ocean View Estates or HOVE Subdivision. The lower subdivision is identified as Hawaiian Ranchos Subdivision. As we zoom in, this is our County zoning map for the area. As you’ll notice, all of the properties are identified in light green. These represent Agricultural – 1 acre. A majority of these properties are approximately one acre in size, although you’ll see some of them have been consolidated to become larger properties. 1 EXHIBIT B For reference, the roads in this particular area are identified as Mahimahi Drive, and this is Liliana Lane and Lurline Lane. So you, I might be referencing those as we go through our presentation. The red identifies the 5-acre area that was previously approved under Special Permit 09-76. The darker colored area represents the area that the applicants are requesting to add onto the existing quarry operation. This is approximately eight acres in size. This is an aerial photo of the area. Just for, again, backing up—the entire subdivision is identified as State, State Land Use Agricultural; therefore, the requirement for the Special Permit and its identified as General Plan Rural for the subdivision. Again, for reference, we have Mahimahi Drive, Liliana Lane, and Lurline. The area of this, this particular application is in this general area mauka of Mahimahi. The, this is the area—well, I’ll just go to this side. This is the area of the existing Special Permit, and they’re requesting the addition of these particular areas. Just for reference so you understand kind of what is happening up in this general area, this quarrying activity has been happening since, we have correspondence in our files that date back to fifth, the late fifties, of quarry activity in this particular area--mainly, on this particular area, but there are a number of operators. Just for reference, the blue represents the applicant. They own those particular parcels. The red, or this general area, is a grandfathered or non-conforming area of 15 acres that’s currently owned by this gentleman. I won’t attempt to pronounce his name. It’s quite a long name, but it was previously Kona Cinder & Soil that is referenced. Our next applicant, David Rodrigues, is in this general area. HOVE Road Maintenance Corporation owns five acres in this area as well. And there are two lots, two areas owned by ‛Ōhi‛a Investments. You might have recalled the previous amendment that we had from Mark Jernigan requesting additional time to bring down the cinder on this particular lot. The applicant is requesting an amendment to Special Permit No. 09-76 which was originally approved to allow a cinder and rock quarry on 5.003 acres of land situated within the State Land Use Agricultural District. The amendment will add 8.009 acres for a total of 13.012 acres of land. The expanding quarry operation will consist of an office building, water catchment tank, one kilowatt wind generator, a weigh scale, and equipment storage area. The equipment will consist of two CAT D8 bulldozers, one CAT D6 bulldozer, two front end loaders, two 6-yard dump trucks, a large excavator, and a rock crusher. These are some site photos, and I’ll, unfortunately, we were attempting to put a map on here to show where we were taking these photos from, but it wasn’t legible, so we decided to just make the pictures bigger. But, this is on Liliana which is the left on the map that we referenced, you had the middle road as Mahimahi, Liliana Lane and Lurline. So, this is Liliana looking makai with the application on the corner here. Mahimahi is just above this. So, you can see the 2 EXHIBIT B existing office building, wind generator, and some equipment on site. Liliana Lane fronting the quarry entrance, so you can see the, the condition of the roadway in this particular area. This is at the intersection of Liliana and Mahimahi Drive where previous quarrying activities in the area had brought Mahimahi Drive to an unsafe condition. Therefore, it’s been closed off. So, this is the subject property—the existing permit on the right side there. This is a little closer on Mahimahi showing the condition of Mahimahi and the area that we’re looking at. You can see that there’s some setback area there along the boundary fence. This is Mahimahi at Lurline, so we’re on the other side of the map now looking towards the existing 5- acre, and the existing area for the amendment. So, again, seeing the condition of Mahimahi. This area is open to where Mark Jernigan’s property is in this general area, but right over here— the, Mahimahi has been closed—that’s where we were looking at here. This is further on Mahimahi. So, it’s been closed, again, the condition of the roadway. This is the general area for Arrow of Oregon’s existing and amended area. This is looking off Mahimahi towards a portion of the area requested in the amendment. This is, again, the additional eight acres. This is an area on the property as we looked on the map, the aerial before, there was a deep hole along Mahimahi. This had occurred some time ago which had brought the stability of Mahimahi to an unsafe condition. It appears that material has been being added into this particular whole area, but it also, this area is included in the amendment. This is Lurlane [sic] Lane, Lurline Lane, and this is from the intersection of Mahimahi and Lurline looking towards the area where just two acres abut Lurline. You can see these areas haven’t been touched, and the roadway is in pretty decent condition. Planning Director’s Recommendation, which has been submitted to the Planning Commission, previously is for approval with conditions. I’d like to take a minute here because we have received a number of correspondence from the applicant as well as a petitioner for standing in a contested case. First and foremost, we have received a petition for standing in a contested case which was received on time and with the nd proper filing fee. Our letter dated June 2 in response to that letter also includes a copy of that petition. So, that will be the first matter that we will address. There were a number of correspondence that came in, basically revised conditions. In talking to the applicant, as well as rd the petitioner’s representative, it’s, it appears that the two letters dated June 3 from both the applicant as well as from the petitioner’s representative, are the most current revised conditions up to date. So, my understanding is that they supersede the previous conditions submitted so we don’t get too confused trying to figure out which one is which. I think that brings us up to date in regards to that. So with that, that concludes our presentation. Thank you. 3 EXHIBIT B MOSES: Thanks, Jeff. Commissioners, any questions of staff? rd HEAUKULANI: Jeff, thank you. I wanted to—I’ve got a June 3 letter from Ms. Raznov. I’ve nd got a June 2 email with conditions from Mr. Dahlberg. Is that, was that what you were referring to? DARROW: There would be a June, let’s see here— rd HEAUKULANI: Looks like it might have been received by the Department on June 3— DARROW: Yes, you’re, thank you for the correction on that. So, the, the date that we’re rd looking at on June 3 would be our stamp date. That’s the date we received it— HEAUKULANI: Thank you, and— DARROW: --that would be their most current conditions. HEAUKULANI: --so, between the two of these, these are the two most current proposed conditions? DARROW: Correct, as well as the Planning Department’s conditions. HEAUKULANI: Thank you. MOSES: I’m going to turn some time over to Danny Patel, Deputy Corporation Counsel for the Commission. PATEL: Yeah, I’d just like to make a quick procedural note so everyone’s on the same page. There was the petition for standing that was filed. So, the process we’re going to follow is the applicant will have the opportunity to speak as to the merits of their application as is usual. After that, the focus will be solely on the petition for standing. So, any discussion by the petitioners should be focused on why standing should be granted. If there’s anyone here that would like to testify as to the application in general, they will be allowed to do so, petitioners included, but that testimony would be public testimony limited to three minutes. And, for the Commissioners, if at any time you would like to go into executive session to discuss the merits of the petition for standing, and what process would be followed if standing were to be granted as far as contested case hearings and procedures, I’d be happy to discuss that with you in executive session. We would just need a motion by a Commissioner, and the Commission would need to vote to enter into executive session. MOSES: Thank you, Danny. Any other questions, Commissioners, of staff? If none, then will the applicant or their representative please come forward. Good morning. Okay, I’m going to swear you in. Could you please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Planning Commission? 4 EXHIBIT B DAHLBERG: I do. MOSES: Please state your name, the area you reside in, and proceed. DAHLBERG: My name is Peter Dahlberg. I reside in Hōlualoa in Kona. Do you need my mailing address or—no? Just proceed? MOSES: Yes, please. And speak directly in the mic. Thanks. DAHLBERG: Good morning staff, Commissioners, Director Kanuha. My name is Peter Dahlberg, and I have applied through my company, Aina Engineers, Inc., on the behalf of Arrow of Oregon/Hawai‛i LLC for an amendment to their Special Permit with regards to an established quarry operation in Hawaiian Ocean View Estates. The proposed amendment is to increase the area on their current permit. The property is located near the top of Ocean View Estates. You may have ordered or purchased material from this business, either directly or indirectly. If not, please go and visit them at their location. It is approximately six miles to the site from the Belt Highway, approximately 80 miles from where we sit today. When you leave Māmalahoa Highway, and enter the estates, you do so onto private roads. These roads are controlled by the HOVE Road Maintenance Corporation which I will refer to as HOVE RMC. The corporation has by-laws and extremely broad authority. I would like to make sure each Commissioner has a copy of the by-laws and will speak more to this later. Does everybody have a copy of the by-laws? Arrow Hawai‛i manufactures and sells the following products to name a few: cinder soil, one- third nursery mix, crushed rock, crushed aggregates. You can call to order. For reasons to be discussed below and subject of this permit, delivery is unfortunately not included, and rates are subject to change. The activity is cinder and rock quarry mining. It is recommended policy of the Ka‛ū Community Development Plan and very soon to be adopted. It’s considered an appropriate diversification of agriculture lands. The material has many uses and applications--cinder for uses of rudimentary driveway over broken lava, typical of the HOVE Ranchos area, and for use as soil replacement or amendment in top soil, landscape fill, septic system leach fields, etc. Rock is for use as construction base and fill. This is not a lucrative business. It is currently regulated by MSHA through an active mining permit. To put it simply, the conditions recommended by the Planning Department will cost money. This cost may be, get passed onto the customer, or this cost may put the operation out of business. Unknown special assessments, amounts levied by HOVE RMC, fearfully increase this risk. The applicant is acceptable to the majority of the conditions proposed by the Planning Department. I’ve been scrambling as of late to address the inserts proposed by HOVE RMC. I, I don’t even nd know if I have the most current iteration of their inserts. I’ve got June 2 over here. I believe rd it’s now dated June 3. 5 EXHIBIT B We do not consider the geotechnical reports provided as part of past applications applicable and dispute them for a number of reasons. Of most significance is the requirement for compaction testing and moisture content. These tests are not considered relevant or required of the subject activity. You’ll notice in my proposed conditions reference to those reports and requirements of testing have been stricken. If I have to get an affidavit from MSHA, other quarry operators, or licensed contractors familiar with the activity for proof--maybe I should have gotten that prior to this meeting--however, it should be noted that Arrow Hawai‛i has not received a single inspection comment from MSHA relating to compaction testing and moisture content. Why? Because MSHA does not include this in their protocols, guidelines, or requirements. It should also be noted that MSHA does look for stability and safety of the entire quarry. If you’re unfamiliar with MSHA, it is a Federal entity of the United States Department of Labor. It is the Mine Safety Health Administration. Its name about says it all with regards to activity and personnel employed. If I may ask you all to read the proposed condition inserted by HOVE RMC counsel, final sentence in their conditions that you have here. Condition No. 4, final sentence, “semi-annual tests and observations of fills, cuts, benching, and direction of surface water runoff to determine the degree of compaction and moisture content obtained by the contractor.” Staff and Commissioners, please understand that contractors will not be employed and fill slopes are not typical to quarry activities. The only fill slopes required would be to support the already specified condition of 15-foot setbacks to all property lines and top of slopes, which I quote. Addressed earlier in the condition, excuse me, with the exception of the large hole inherited by my client adjacent to Mahimahi Drive, the anticipated fill slope to correct encroachments would be minimal. Topographic maps have been provided within the application for reference and taken recently for historical record. My client intends to comply with the conservative setbacks recommended by the Planning Department, and for this work to be under the cooperative supervision of my office and HOVE RMC. The condition of semi-annual determination and degree of compaction and moisture content is not only questionable, it actually implies and conditions a lot of expensive tests not relevant to the permit activity. Assuming this condition and recommendation of the CEL 2009 Report flawed, we ask the reference to the report be removed from the permit conditions. Language specified in Condition 4 and 6 is sufficient and concise with regards to the directed slope and quarry construction, setbacks to roads, property lines, and materials to be used for such construction. My office will be responsible to oversee the specified conditions in coordination and cooperation with HOVE RMC. I have pledged this to their representatives. I’ve met with them the past couple days. I’ve talked to them on the phone prior to this meeting. I intend to work with HOVE RMC. Please take a moment to compare my edits to the Planning Department’s proposed conditions and to that of HOVE RMC. We consider their edits excessive. We agree to more frequent, up 6 EXHIBIT B front reporting and providing copies to HOVE RMC. We agree to improve my client’s ingress and egress driveways to a commercial standard as specified by either HOVE RMC or County standard details. The edits proposed in Conditions 6 and 8 are already provided for under the very broad by-laws of HOVE RMC. May I please call your attention to these--Article 5, Section 5.7 special assessments. Would you like me to read aloud the article? Is that necessary? MOSES: No, it’s not necessary. DAHLBERG: It’s not necessary? Does the County view via the Planning Department and this Commission really want to be involved dictating such speci—excuse me—specific conditions and substantial compliance of such? If the answer is no, then please consider my simple and reasonable edits to the proposed conditions provided for, with rationale for my edits, and most importantly, do not grant HOVE RMC’s petition for standing in contested case procedure. My client does not wish to drag this process out further, incur any unnecessary costs personally for that of the County or even for that of HOVE RMC. Again, I personally pledge to work and cooperate with both my client and HOVE RMC. I look to Laura for that cooperation. We will cooperate to ensure safety of the area and the integrity of the roadway system. We wish this at minimal cost to all those immediately involved. I personally appreciate your time and attention to this matter. Thank you. MOSES: Thank you. CHAMBERLAIN: You want me to tell them something now? DAHLBERG: This is, this is Joe Chamberlain. He is the owner of Arrow of Hawai‛i/Oregon LLC, and would you like to say something, Joe? MOSES: Can I— DAHLBERG: Is it allowed? MOSES: Can I swear you in before you—can I swear you in? CHAMBERLAIN: --Sure. MOSES: If you can raise your right hand, please? Do you swear or affirm to tell the truth on this matter now before the Planning Commission? CHAMBERLAIN: Yeah. MOSES: Please state your name, the area you reside, and proceed. 7 EXHIBIT B CHAMBERLAIN: My name is Joe Chamberlain. I reside in Wilsonville, Oregon. It’s just south of Portland a little ways. I’m retired on a 20-acre--- MOSES: Please speak in your mic— CHAMBERLAIN: I retired on 20 acres with my wife at some ten or twelve years ago. We, were, had gotten a piece of property in Hawai‛i. First of all, I’m 90 years old. I don’t hear very good. I get confused a few times, but other than that, I, I can still percolate. My wife and I received this lot down on Ocean View Avenue, and we made plans to move over here from October to April ‘cause we like the weather here a little better. At the time, we were both in pretty good health. Well, during that time, planning to do all this stuff, I, my wife got emphysema and it got so bad, I, for 12 years, I kept her at home, and then she had to go into a care center, and six years ago, she passed away. Well, I had the lot yet here, but I had some other properties I had looked at. Then, I started, I was asked to get involved in this deal with this person to mine cinders. Well, I investigated in this person, and I never, I finally looking at this thing. I finally decided I’d probably give this a try, that it had some future, and I was retiring from my business of 55 years in Portland as a mechanical contractor. I put in heating and air conditioning work. That business is still in business today run by my son who is 59. I have six children, 3 boys and 3 girls. They’re all reasonably good kids and are making their way in this world. I, I have tried hard to run this business here. When I appeared before this board, I don’t know, it’s been five years ago, and I was given favorable treatment, and at the time, they sold, told me that I was the only one that had a license to do this here. There was a lot of people doing it, but they didn’t have licenses. That was neither here nor there. We have tried to follow the rules of this thing very closely. We did make a mistake on one of the quarries— some time back we didn’t get a, an engineer to come and look at a, they were supposed to give us a profile of where we had mined. The first year when we started this, we didn’t mine at all on our own. The second year, we moved another man in there to crush rock. The third year, he came in there and crushed rock, so we did not progress this thing as fast as we would like to. I know at one time, we started selling crushed rock in that area. Within a mere, within five or six months, we had 90 percent, 90 percent of all rock sales in that area. People have written us letters right now, we have over a hundred that specify that they’d like to see us back in business. I have run businesses most of my entire life, and I have always had a good record with any place where I worked, and I do try to follow the rules, seeing that we got called down on here. We did not get a profile of that one area which we had not mined much. There was very little change or anything to report. Right now, if we, we would like your consideration to let us go back in business. I have had to lay off four people some months ago, and these were people that were making good salaries. The foreman there I think was about $60,000 a year. This, I feel, is a fair amount for a new 8 EXHIBIT B operation. That was what he was paid, and he well earned that. He has left my employ now and gone to Boise, Idaho ‘cause we can’t keep him busy. I would like the consideration from our past history when we appeared here before the board. That was another lady chairman then, Mrs. Leithead. I went to see her a short time ago, and we had a good visit. We had very good relations with her, and I hope we can have good relationships with you people. MOSES: Thank you. Commissioners, any questions for the applicant? Thank you. You may be seated. DAHLBERG: Can I make one last point? MOSES: Okay. DAHLBERG: I’m sorry. HOVE Road— DARROW: Mic. MOSES: Please use your microphone. DAHLBERG: HOVE RMC can undertake the improvements they seem to want to identify and condition the applicant is responsible for. Their by-laws seem to allow for such improvements and then some. If you haven’t read the by-laws, they’re only a few pages long. What I’m specifically speaking to is sections 5.8 and 5.9, lien for assessments and other amounts, effect of nonpayment of assessment, remedies of the corporation. Again, does the Planning Commission really want to police these by-laws. Thank you for your time. MOSES: Thank you, Mr. Dahlberg. Okay, so looks like we have public testimony. Oh, sorry, thank you, thank you. The petitioners, can the petitioners please come forward? And can we also have the Planning Director’s representative, please come forward. Okay, I’m going to swear you all in. Could you please raise your right hand? Do you swear--do you swear or affirm to tell the truth on this matter now before the Planning Commission? RAZNOV/FOSTER/SELF/KANUHA: I do. MOSES: Thank you. We’ll start left— PATEL: Just as a quick reminder. Just be sure to focus on the petition for standing at this point. If standing is granted, of course, you’ll have an opportunity to argue the merits of the case, but at this stage, we want to focus on why standing should or should not be granted, and then thereafter 9 EXHIBIT B if anyone would like to testify generally as to the application as I mentioned before, they will have three minutes to do so. Thank you. MOSES: Thank you, Danny. Okay, if you could please state your name, starting from left, the area you reside, and go ahead and proceed. RAZNOV: Good morning. MOSES: Good morning. And speak directly in the mic. Thanks. RAZNOV: Good morning, Madam Chair, and members of the Commission. My name is Jill Raznov. I’m an attorney. I live in Orchidland and work in Hilo. I represent Hawaiian Ocean View Estates Road Maintenance Corp. whose chief operating officer, Laura Foster, is sitting to my left. Would you like her to also introduce herself? MOSES: Yes, please. FOSTER: Good morning. I’m Laura Foster. I’m the chief operating officer of HOVE Road Maintenance Corporation, and I reside in Ocean View. MOSES: Go ahead. SELF: Amy Self, Deputy Corporation Counsel representing the Planning Director— MOSES: Thank you. SELF: And to my left is the Planning Director, Duane Kanuha. MOSES: Thank you. Okay, go ahead, Jill. RAZNOV: Thank you. HOVE Road Maintenance Corp. is a 501C, C4 non-profit corporation established by the Hawai‛i Third Circuit Court in about 1983 for the purpose of maintaining and rebuilding the roads, which in the HOVE’s, within the HOVE Subdivision as a privately maintained road system without support from the County or the State. All lot owners within the HOVE Subdivision are members of the Road Maintenance Corp. There are five standards for granting intervention under the Planning Commission rules for contested case procedure. We believe that HOVE RMC can demonstrate at least three of those, where only one is required to be met. Those three are that HOVE RMC has an interest that is clearly distinguishable from that of the general public; that they have a property interest in the lands affected by the proposed activities; and that the proposed action by the applicants today will cause HOVE RMC actual or threatened harm, in fact, if not properly mitigated. Clearly HOVE meets all three of these standards where the applicants propose an existing quarrying activities, including their heavy truck hauling on HOVE roads and intersections threaten to cause or have caused already injury to HOVE roads. They clearly have an interest that is 10 EXHIBIT B distinguishable from the general public. They also have a property interest in the lands affected by the proposed activities. The properties that are actively being quarried with and without permits by Mr. Chamberlain representing Arrow and Mr. Rodrigues, Mr. and Mrs. Rodrigues, excuse me. Those properties contain either no or inappropriate setbacks from HOVE roads and adjoining properties. Steep walls that present clear safety and liability hazards, unpaved driveways which heavy trucks use for ingress and egress on a daily basis which damage HOVE roads. And regular heavy truck use that continues to tear up and degrade the roads along the affected properties, the intersections, the operators, and the haulers use to make turns and turnarounds and along the haul routes. The HOVE roads including Mahimahi, Lurline, Liliana, ‛Ōhi‛a, and Kailua of which you saw a few of those in Mr. Darrow’s slides earlier, along which the—these are all roads along which the applicants’ properties border. These must be maintained and repaired to assure the safety of life and property. Some of the conditions that we’re asking as petitioners propose to do just that. So, we believe that long established case law, there’s no question that HOVE Road Maintenance Corp. has standing to intervene in these matters. Thank you. MOSES: Laura? FOSTER: Yes, Madam Chair. MOSES: Are you going to comment or present anything to us at this time? FOSTER: I’d like to say that HOVE Road Maintenance maintains 157 miles of roadway, the burden being placed on all of its members many who do not live here, and that we have true issues with these heavy trucks and heavy hauling on a daily basis. Thank you. MOSES: Okay, thank you. Okay, Corporation Counsel? SELF: Yes, I’d just like to state on behalf of my client that the Planning Director has no objection to the intervention. MOSES: Thank you. Any questions, Commissioners? Commissioner Ikeda. IKEDA: You know, when I’m looking at the Director’s Recommendation and the HOVE Road Maintenance request, it, it seems that the difference is just the intervention that or I think the requirements, time requirements report requirements, it seems to be the only difference in the—I think the major issues of the setback and everything is, I think most of it is according to what HOVE is requesting. Is there, maybe you can explain to me what I’m missing, because I really— RAZNOV: Yes, Mr. Ikeda, thank you. We actually built upon the Planning Department’s Recommendations in our revi--suggested conditions, and we did feel that while the Planning 11 EXHIBIT B Director’s conditions were good, we just wanted to improve them a little bit more by providing a little more clarity in compliance standards, as well as the stabilization of the sites. I mean, we’re talking about a history of, of non-compliance where the applicants today have said that they’ve been reasonable, and they’ve been compliant operators. We disagree with that. We’ve provided you some pictures today that show, for Arrow especially, who has had permits that show areas of those permitted properties that are not in compliance in terms of benching, in terms of setbacks. So, we were just trying to tighten these up so to speak. Also, in regards to restoration, erosion control—all of these areas that affect these quarrying. And you’re talking about large swaths of areas and as Laura was talking about, many miles of roadways, and these roadways are further deteriorating every day, so we just wanted to have conditions that were really tight, and that really addressed these issues for stabilization, mitigation, remediation, safety, and the repair of the roads. I hope that answers your question. MOSES: Any other questions, Commissioners? Okay, so, the petitioners, what is your response to the petition of standing? PATEL: Do the applicants have any response— MOSES: --have any response to the— DAHLBERG (from audience): We don’t-- PATEL: Can you— DAHLBERG: We don’t believe the petition for standing is necessary or should be granted. HOVE Road has all the powers to levy assessments and correct their roads personally and to an extent, that actually these proposed conditions would limit them in how they repair their roads to their standard. Petition for standing is not grant—is not necessary. It would cost everybody money to include HOVE RMC. HEAUKULANI: I think that the question really is whether they’ve made met all of the standards for the petition they filed, right? That’s the posi—I’m not really looking for your factual arguments at this point. I’d like to know whether or not you agree with them that they’ve met the standards as set forth in our rules of procedure to enter this case. DAHLBERG: They’re not your typical neighbor. They’re a corporation. They own these roads. They fix these roads at their discretion. As far as being threatened by the activity, they’re not threatened by the activity. They can take any measure they wish to fix the roads to the standard they have. HEAUKULANI: You’re kind of dancing around my question a little bit. DAHLBERG: I’m sorry, sir. Yes, they are clearly distinguishable from the general public. 12 EXHIBIT B HEAUKULANI: Thank you. MOSES: Okay, thank you. You may return back to your seats. So, we’re gonna move forward with public testimony. I have three testifiers. Bruce Petronic [sic] Petrovic—wait I have two— and Mark Jernigan. I’m going to swear both of you in. Please raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Planning Commission? PETROVIC/JERNIGAN: I do. MOSES: Thank you. Please state your name, the area you reside, and speak directly into the microphone. Each of you will have three minutes. JERNIGAN: Good morning. MOSES: Good morning. JERNIGAN: My name is Mark Jernigan. I reside in North Kona, specifically Hōlualoa. MOSES: You may proceed. JERNIGAN: Thank you. Thank you for allowing me the opportunity to speak. I’m speaking today in favor of the applicant. There’s two applicants—I’m actually speaking in favor of both of them. After listening, I didn’t, I don’t have the luxury of seeing all the conditions that were bouncing back and forth, but after listening to the testimony that was presented orally, I don’t believe HOVE has standing for a contested case, and I don’t think they have standing even to dictate what happens on private property. They’re the road maintenance corporation and that’s what their charter is for. Just for road maintenance. Not to say what kind of uses happen on the property. That’s up to you all to a, if it’s going to be agriculture, if it’s going to be a quarry or if it’s going to be a forest, or it’s going to be a day care center, that’s up to you. It’s not up to HOVE. Now, they maintain all the roads in the subdivision, that’s true. But for heavy vehicles, they allow heavy vehicles in the subdivision. They are several large businesses down along the highway—grocery stores, gas stations, there’s a lumberyard and heavy vehicles come back and forth from these things. There’s water, a water district thing, so the water trucks come back and forth, and HOVE assesses all heavy vehicles a thousand dollars per year to travel on these roads. And that assessment they claim is because of the extra damage that the heavy vehicles cause. That’s a pretty heavy fee to travel on a road—a thousand dollars per year per vehicle. So, and I also heard something else earlier—HOVE was, their counsel was saying about the applicant being non-compliant. Well, Ocean View Estates did illegal mining for decades on five acres. That seems, you know, if you’re going to consider somebody’s behavior and how you’re gonna value their testimony, that needs to be considered ‘cause both, both people probably have done something wrong. 13 EXHIBIT B I mine down there. I did—I was before you about a year ago or less than a year ago to get a Special Permit to mine, mine off and correct a large high bank, and I use the roads. I pay the, the fees, and I’d just like you to consider those facts. Thank you very much. MOSES: Thank you for your thoughts and testimony, Mark. Go ahead, you may proceed. PETROVIC: Good morning. My name is Bruce Petrovic. I live in Ocean View, and I support the applications of Arrow and, excuse me, Laura and David Rodrigues. The quarries provide a much needed, and on a lower cost, of cinder and rock materials. The closest quarry to Ocean View is in Kailua, 45 miles to the north. This adds additional trucking costs to those who can afford it, but most go without. I am also a former board member of the road corporation having resigned just this past April. The Board of Directors forged an agreement with the quarry operators back in February. It was a fair agreement. The road corporation agreed to repair the roads in the area, and the quarry operators went and installed appropriate aprons. They would also agree to help maintain the intersections in the general area. When I found out that some of the board of directors and its general manager would ignore this agreement and hire an attorney and a geotechnical engineer who by the way was first hired by Arrow in 2009, I resigned in protest. We have a divided board. The lot owners in the surrounding areas have paid over $300,000 in the last ten years, and have not received one patch so where’s all this money going? There spending it on lawyers and geotechnical engineers. I strongly urge you not to allow this to be contested. MOSES: Thank you, Bruce for your thoughts and testimony. Commissioners, any questions for testifiers? If not, thank you gentlemen. We have one more testifier on this matter, Laura Foster. FOSTER: Thank you— MOSES: Okay, Laura, hold on, I have to swear you in again. Could you please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Planning Commission? FOSTER: I do. MOSES: Please state your name again, and the area you reside. Speak clearly in the microphone, and you will have three minutes. FOSTER: Laura Foster. I reside in Ocean View in the Ka‛ū District. I would just like to for the record state that Mr. Petrovic did resign from our corporate board. He did not give an explanation. He resigned for personal reasons, and he merely sent an email to our corporation 14 EXHIBIT B with no explanation. Also, to the fact that there was no written agreement, and no approval by our board, which is mandated to have a quorum and a full vote of the board. That never happened. Things started moving forward way quickly. We had not reached any terms with these people, and we’ve spent the last two months trying to come to some sort of agreement in the interest of all of the people who reside in Ocean View who pay road assessments. That’s why we hired an attorney—for the best interests of our members. While it is true that we do charge for heavy truck traffic, it’s also a very rare instance that people pay. Mr. Chamberlain has not paid for Arrow, and I think we’re talking just about Arrow. I think we have a good case of standing because they are our roads. They’re paid for by all the members, over almost 11,000 of them. I think that it is only fair that we have conditions so that we can take care of the roads appropriately. Thank you. MOSES: Thank you. Commissioners, any questions for the testifier? If not, thank you, Laura. Okay, so we need a motion to grant or deny standing. Do we have a motion? HEAUKULANI: How about a motion to move into executive session to discuss this matter and the process and procedures that are before us this morning? MOSES: Thank you, Commissioner Heaukulani. Motion made— HENKEL: Second. MOSES: And seconded by Commissioner Henkel. All those, discussion? No? All those in favor? COMMISSIONERS: Aye. MOSES: So, we’ll ask everybody to leave until we come out of executive session. Thank you. At 10:17 a.m., it was moved by Commissioner Heaukulani 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 five aye votes. At 10:19 a.m., the Commission went into executive session. At 10:30 a.m., it was moved by Commissioner Dela Cruz and seconded by Commissioner Ikeda that the Commission go out of executive session. A voice vote was taken of all Commissioners present, and motion carried with five aye votes. The hearing reconvened for regular session at 10:31 a.m. MOSES: Okay, we’re calling this back to order. What is this? We’re at motion to grant or deny standing to petitioner. Do I have a motion? 15 EXHIBIT B HEAUKULANI: Madam Chair, I’m going to move to grant standing on the petition for standing in a contested case hearing signed by Laura Foster, Chief Operating Officer for Hawaiian Ocean View Estates Road Maintenance Corporation. MOSES: Do I have a second? HENKEL: Second. MOSES: So, it’s been moved by Commissioner Heaukulani and seconded by Commissioner Henkel. Discussion. HEAUKULANI: I don’t have a lot of discussion I think on the merits that there’s--as a matter of law that we have to do this. And it’s also my intention to later to move to consolidate matters 2 and 3 on our docket today for purposes of a contested case hearing, but beyond that, I’ll let my motion stand. MOSES: Further discussion? Seeing none, can we have call for vote? DARROW: Thank you, Madam Chair. The motion before us is to grant standing to the petition for standing in a contested case submitted by the HOVE Road Maintenance Corporation or RMC. With that, we’ll take the roll call. Commissioner Heaukulani? HEAUKULANI: Aye. DARROW: Commissioner Henkel? HENKEL: Aye. DARROW: Commissioner Dela Cruz? DELA CRUZ: Aye. DARROW: Commissioner Ikeda? IKEDA: Aye. DARROW: And Madam Chair. MOSES: Aye. DARROW: The motion passes five to zero. MOSES: Thank you, Jeff. 16 EXHIBIT B PATEL: So, next the Commission needs to decide whether or not they want to refer the matter to a hearings officer or for the Commission or any composition of the Commission to act as hearings officer themselves. And, a motion would need to be made for action on that issue. MOSES: Do we have a motion, Commissioners? HEAUKULANI: I’m sorry, I should have addressed this in executive session but maybe it’s not necessary. Are we under any time frames or time deadlines? PATEL: Time deadlines with respect to? HEAUKULANI: Contested case hearings. I’m just thinking about scheduling. PATEL: Through completion of the contested case hearing? HEAUKULANI: Or to even to initiate. PATEL: Oh, so to begin. HEAUKULANI: Yes. PATEL: No, that can be by agreement of the parties really, but practically you want it sooner than later. Thirty days would be reasonable to at least you know set some deadlines for submission of documents and what not. HEAUKULANI: Then I would move that the Commission as a whole act as hearing officer in this matter. IKEDA: Second. MOSES: It has been—a motion has been made by Commissioner Heaukulani and seconded by Commissioner Ikeda. Discussion. HENKEL: Would it be possible to amend the motion to be worded that Commissioners that agree to serve would be—not a blanket. PATEL: You may make that motion. So, if you want to amend that motion, you can move to amend. HENKEL: Is that okay with you? HEAUKULANI: You know, I mean for me, it’s more of a scheduling than anything else, yeah. HENKEL: I can’t amend another motion, right? 17 EXHIBIT B MOSES: You can make a motion. PATEL: You can make a motion to amend and then you can vote. HENKEL: Okay, I move that the motion be amended to have the wording be that it be subject to individual, you know, okay from the Commissioners. IKEDA: I’ll second that. PATEL: So, just to clarify, the motion is that the Commission as a whole act as the hearings officer subject to individual Commissioners accepting— HENKEL: --yes— PATEL: --that role. HENKEL: Thank you. PATEL: Which means, which would mean that if any Commissioner does not accept that role, the remaining Commissioners would act as hearing officers. HENKEL: Correct. MOSES: That motion was made by Commissioner Henkel and seconded by Commissioner Ikeda. Discussion? So, I just want to point out I think that to one of the things that we discussed is that taking this on as Commissioners to act as hearing officers, you are committing to attending every meeting that is scheduled for this hearing through the duration of it, and completing it. Correct? Everybody understands that. Yes? Will it be at this time that we make the decision of who will be there or commit to that, Danny? Do we have to make that determination here now? PATEL: I think maybe—does, would staff have any input as to the procedural aspects of proceeding this way? No? DARROW: Staff would work with a representative of the Planning Commission in, in putting together a schedule, and then once the schedule is set, and the parties agree, then we can work through that schedule. Is that what you’re asking? As far as procedure? PATEL: Yeah, if—if you had any comments generally. Okay, so I think we’re all on the same page unless there are any questions? Okay. MOSES: Any further discussion? If not, let’s call for the vote. DARROW: Okay, my understanding is we’re gonna take the amendment vote first, okay? And just so I’m clear, I’m gonna try to reiterate that motion. The motion is to amend the main motion 18 EXHIBIT B to allow each Commissioner to a—to, that each Commissioner who accepts a, the a—to be a part of the contested case will be, those will be representing to the Planning Commission for the contested case. Those who do not accept will not have to preside on the contested case. Correct? MOSES: Correct. DARROW: So, we’ll take that roll first. Okay, Commissioner Henkel? HENKEL: Aye. DARROW: Commissioner Ikeda? IKEDA: Aye. DARROW: Commissioner Dela Cruz? DELA CRUZ: Nay. DARROW: Commissioner Heaukulani? HEAUKULANI: Aye. DARROW: And Madam Chair. MOSES: Aye. DARROW: The motion passes four to one. MOSES: That’s it? PATEL: So you need a vote on the main motion. MOSES: Okay, so now we need to vote on the main motion. DARROW: Correct. The main motion is to have the Planning Commission as the hearings officer in this particular application. With that, we’ll take the roll call. Commissioner Heaukulani? HEAUKULANI: Aye. DARROW: Commissioner Ikeda? IKEDA: Aye. 19 EXHIBIT B DARROW: Commissioner Dela Cruz? DELA CRUZ: Aye. DARROW: Commissioner Henkel? HENKEL: Aye. DARROW: And Madam Chair. MOSES: Aye. DARROW: The motion passes five to zero. MOSES: Okay, so we are, the Commission will conduct hearing, and ask staff for continued date pursuant to Rule 4-6(d), motion to continue contested case hearing to later meeting date. Staff, do you have any suggested date? th DARROW: Let’s—August, our August 6 Planning Commission hearing. So, just for information to the Commission, prior to that hearing, we’re gonna meeting with representatives of the Commission as well as applicants and petitioner and set a schedule in regards to submittals of witness list, exhibit list, pre-hearing conference—to set up that schedule. So, prior to that meeting, everything should be complete, and then we should be ready to proceed with the contested case. MOSES: Okay. PATEL: Do you— RAZNOV (from audience): May the petitioners speak on that issue? PATEL: As to the, the dates? RAZNOV (from audience): Correct. MOSES: Yes. RAZNOV (from audience): Should I just come forward? MOSES: Yes. RAZNOV: Hi, this is Jill Raznov again for the petitioners. Just so the Commissioner, Commission understands, we have been in negotiations with the applicants on trying to resolve this, and we have met before this hearing, and we have agreed to try to continue in the next thirty days to resolve this, so we would request that the Commission allow us some time to do so. I 20 EXHIBIT B thth think that the August 6, 6 date is a little bit too soon in order to, you know, spend the next month to work on resolving. We will not be able to address preparing for this hearing which is going to require as Mr. Arai [sic] said witnesses and preparing exhibits and things like that so, I would respectfully request a little bit more time, I think, a—maybe four months might be a better—three to four months might be better. PATEL: Would the applicants have any response as to the date? DAHLBERG: Thank you, Mr. Patel. We disagree with that. We’d like to move this along quicker. We believe August is even too much time. We request 45 days from today’s date if possible. This has been going on since October of 2014. David Rodrigues just got rolled up into the petition. He hasn’t even had a chance to present his side of the story. He’s a family run business and he’s been shut down since October of 2014. PATEL: So, Commissioners, you’ve heard what the petitioner and the applicants have had to th say. Staff recommended the August 6 date. You know, if you have questions as to other potential dates, feel free to ask. Otherwise, there would be an—there would need to be a motion as to what date this contested case hearing is going to be continued to. MOSES: Commissioners, motion to continue contested case hearing to the date as proposed by the staff, Planning Department? Do we have a motion? HEAUKULANI: If we split the difference and found the date in September, what would, date would that be? I think it’s in everybody’s best interest to give the parties time to try to work this out if they can. ARAI: For September, the next Windward Planning Commission meeting would be September the third. DARROW: If I may interject. What we can do, I mean, consideration, the, as the representative for the petition, petition had mentioned is that the parties are trying to resolve to come to an agreement, and so they’re asking for more time for that to happen, including the time, if it doesn’t work, they’ve gotta prepare for this. So, if, it might be better, like what you were saying is, to consider a, that those issues going on, as far as resolving it, but if there’s a breakdown in communication that occurs between this, then during that time, we have to begin this pre-hearing conference schedule, which is going to take—what would you say at least one month? Approximately a month and a half to go through this process of submittals and being able to respond to those submittals for each parties. So, that has to be taken into consideration. Now, at any given time, if they do come to an agreement, then they can request to be placed on the next agenda. CHAMBERLAIN (from audience): Mrs. Chairman, may I speak? 21 EXHIBIT B MOSES: Okay, sorry, your representative has already spoken. Thank you. So, do we have a motion, Commissioners? I want to make a motion that this continued case hearing to later date meeting will be September rd 3. HEAUKULANI: Second. MOSES: Any discussion? If not, let’s call for the vote. DARROW: Madam Chair, just so I’m clear, Commissioner Heaukulani was second? MOSES: Yes, thank you. rd DARROW: Okay, thank you. The motion before us is to continue until our September 3 Windward Planning Commission hearing. With that, we’ll take the roll call. Commissioner, Madam Chair? MOSES: Aye. DARROW: Commissioner Heaukulani? HEAUKULANI: Aye. DARROW: Commissioner Dela Cruz? DELA CRUZ: Aye. DARROW: Commissioner Henkel? HENKEL: Aye. DARROW: And Commissioner Ikeda. IKEDA: Aye. DARROW: The motion passes, five to zero. 22 EXHIBIT B MOSES: Okay, petitioners and applicant, you will be notified in writing of deadlines to submit documents and the hearing date. Thank you. The discussion ended at 10:49 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 23 EXHIBIT B