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HomeMy WebLinkAbout2015-06-18 Leeward Exh A (REZ 15-187) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT JUNE 18, 2015 CHARLES E. LIPPS, JR. AND JANET S. A regularly advertised hearing on the application of LIPPS TRUST (REZ 15-187) was called to order at 9:35 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, Scott Church, Collin Kaholo, Sonny Shimaoka, Keith Unger, Thomas Whittemore and Barbara Nobriga (until 10:45 a.m.) ALSO PRESENT: Danny Patel (Counsel to the Commission), Duane Kanuha (Planning Director), Jeff Darrow (Planner), Christian Kay (Planner) and Noriko Sauer (Commission Secretary) And four people from the public in attendance. APPLICANT:CHARLES E. LIPPS, JR. AND JANET S. LIPPS TRUST (REZ 15-187) Application for a Change of Zone from an Agricultural-3 acre (A-3a) to a Family Agricultural-1 acre (FA-1a) zoning district for approximately 3.039 acres of land. The property is located on Hiona Street, approximately 1,000 feet west of its intersection with Māmalahoa Highway, Keopu rd 3, North Kona, Hawai‘i, TMK: 7-5-024:078. BEAUDET: First item on today’s agenda is application for rezoning, 15-187, Charles Lipps, Jr. and Janet S. Lipps, for rezoning of Ag-3a, requesting to rezone to Ag-1. Staff? KAY: Thank you, Mr. Chair. Good morning. So, yeah, we have a change of zone application. The subject parcel is located in the North Kona District of the island. More specifically, this 3.039-acre parcel here outlined in red is located in the Keopu Heights area in Hōlualoa. For reference you see Māmalahoa Highway here going north-south on the slide and Hiona Street kind of east-west here. The subject parcel is immediately surrounded by other parcels that are zoned Ag-3. The subject parcel is zoned Agricultural-3 acres. Makai of the area and mauka of Māmalahoa Highway is Agricultural-1 acre, surrounding these areas is Agricultural-5 acres, and here about 250 feet to the south is Family Agricultural-3 acres. The State Land Use designation for the subject parcel and surrounding area is Agricultural. The General Land Use Pattern Allocation Guide Map designates the area as Important Ag Lands, not only the parcel but the surrounding area. The reason this was set as Important Ag Lands is because it’s part of what the General Plan designates as the Kona Coffee Belt. Relative to the Kona CDP, the subject parcel is outside of the Kona CDP Urban Area. It also does not fall within any Urban or Rural TOD designations or within any concurrency zones. 1 EXHIBIT A This is an aerial photograph of the subject parcel and surrounding area. I just wanted to give you kind of a context. Again, it’s outlined in red. You see that the surrounding area is, there are homes or small farms and some vacant lots. More zoomed in, this is the aerial photo of the parcel. Again, this is Hiona Street. There is an existing single-family dwelling on the upper part of the parcel accessed by a driveway out to Hiona Street. The parcel, we can’t see it obviously on the aerial, but there is about 100-foot elevation drop going, heading makai. Further down on the lower portion of the parcel is a workshop and a craft room that is accessed by a lower driveway as well. Mauka of the single-family dwelling there is a landscaped area, as well as some fruit trees and also to the side some additional fruit trees and pineapples and alike. The applicant is requesting a change of zone from Agricultural-3 acres to a Family Agricultural-1 acre zoning district for approximately 3.039 acres of land. The purpose of this change of zone is to subdivide the parcel into two lots in order to convey the makai lot to the applicant’s daughter so that she can build a residence. Here you see the proposed site plan and subdivision map. Again, the Lipps home here on the mauka portion of the property. So this would be subdivided roughly in half with the lower portion, again, proposed to be given to the daughter. This workshop and craft structure would be on the lower portion as well. The next few photos are some just site photos of the area. This is the Lipps home on the upper portion of the property. Again, some photos of the landscaped area and the fruit trees on the makai portion and the side of the house. And this is, sorry about the darkness of it, but a view from the Lipps’s lanai area looking makai, you can see the lower portion of the parcel here. And this is the roof of the workshop structure, and then on the right you see the actual workshop structure itself on the makai portion of the parcel. Again, just some photos of Hiona Street, looking mauka, looking makai, and then some photographs of their driveway on the mauka area and the makai area. So the Planning Director is recommending an unfavorable recommendation be forwarded to the Hawai‘i County Council for the following reasons: First, the proposed request does not conform to the goals, policies and courses of action of the Land Use and Land Use-Agriculture General Plan elements for this area; Second, the proposed request does not conform to the goals, objectives and actions of the Kona Community Development Plan; and third, the proposed request will not result in a more appropriate land use pattern that will further the public necessity and convenience and general welfare. So this first bullet and the third bullet are in our Code as the criteria that we look at when we consider changes of zone. So going through that, just the land use element in the General Plan is to allocate appropriate requested zoning in accordance with the existing or projected needs of the neighborhood, community, region and county; and that zoning requests shall be reviewed with respect to the General Plan designation, district goals, regional plans, State Land Use District, compatibility with adjacent zoned uses, availability of public services and utilities, access, and public need. For the agricultural land use element, again, this subject parcel and the surrounding area is designated Important Agricultural Lands, and this says that IAL lands shall not be rezoned to parcels too small to support economically viable farming units; and more specifically, there is a course of action for 2 EXHIBIT A North and South Kona in the General Plan that says “Protect important agricultural lands within the Kona Coffee Belt from urban encroachment through the use of zoning and other mechanisms.” So, next, relative to the Kona Community Development Plan there is a Land Use Policy 3.8 that says rezoning of areas currently zoned Agricultural outside of the Urban and Rural TOD areas, and outside of Urban designations on the General Plan LUPAG map in limited circumstances, include what’s being proposed here, which “allows only a small number of additional lots, consistent in scale with the transfer of lots to family members”; however, the same policy at the end says, the intent is to “prevent the rezoning of agricultural property to allow ag\[ricultural\] subdivisions where the primary objective of the lot owner will be to have a residential estate.” So the application actually said this was, the stated purpose was to allow the daughter to build a home. In terms of the land use pattern, the subject property is one of 15 three-plus-acre parcels in the mauka portion of the subdivision that’s maintained Ag-3 zoning for the last 42 years. Changing the zoning to FA-1a would be a significant departure from the existing zoning, and importantly could set a precedent should other property owners desire similar changes in zone. And finally, this could create kind of the more dense, more residentially-focused land use pattern, which from before is inconsistent with the General Plan, the LUPAG, State Land Use Agricultural District and the Kona Community Development Plan. Based on the preceding, the Planning Director is recommending that the Planning Commission forward an unfavorable recommendation to the Hawai‘i County Council. Just really quickly, since the background and recommendation were complete, there were three additional pieces of correspondence that came in to the Planning Department: There was a letter of opposition from a neighbor, dated June 9, 2015, the Department of Water Supply followed up with a clarifying memo dated June 10, 2015, and then Mr. Lipps responded in writing to the Director’s unfavorable recommendation and that’s dated June 16. And I believe all of those were emailed to the Commission. With that concludes my presentation, I’m happy to answer any questions that the Commission may have. BEAUDET: Commissioners, any questions for staff? CHURCH: Yes, Christian, I have several questions for you here. The subject parcel falls into the Coffee Belt area. Are there any nearby commercial coffee farms in this area? KAY: I believe so, yes, let me, sorry, I’ll click back through this and I’ll find the aerial photo kind of showing the surrounding area, the zoomed-out aerial photo. Jeff, can you remind me the name of this coffee farm here that was the -? DARROW: UCC? C. LIPPS \[in the audience\]: Komo. 3 EXHIBIT A KAY: Komo. Yeah, so this is an active coffee farm here. This was that section that was rezoned back in 2004 to Family Agricultural-3 acres, and they went through and subdivided into two parcels as well. CHURCH: Okay, thank you. It’s cited that “Most of Kona’s coffee is grown on five- to ten-acre parcels in what is referred to as the Kona Coffee Belt,” and then as a matter of policy, “Important Agricultural Lands shall not be rezoned to parcels that are too small ….” What is too small? Is this a subjective or objective judgment? KAY: Well, so it’s something that, obviously, different types of agriculture have, you know, different economically viable units. Because this is in the Kona Coffee Belt, I went back and looked at some of the different studies that were available on lot size or average farm size for Kona coffee farms. There was a study, I looked at a study from the Department of Agriculture, a study from CTAHR, and then the County back in 2012 did a food self-sustainability study, and all of those studies basically showed that the trends for coffee farms in the Kona area are getting larger between five and ten acres. CHURCH: Right, so this might be on the small side, is that correct? KAY: Yeah --. CHURCH: Okay. KAY: -- I believe the CTAHR study said most small farms are roughly 1.67 acres and under 10,000 dollars in sales. And according to, I think it’s the federal Department of Agriculture, those aren’t considered commercial farms; they are just considered, and so anything above 10,000 dollars a year in sales are considered commercial, and those tend to be on the larger side, roughly six acres or larger. CHURCH: You know, it’s also cited that “a single-family dwelling located on and used in connection with a farm … or where agricultural activity provides income to the family ….” So the fact that this application was for single-family homes is something which is by policy not supported. Suppose the application did not say that at all, suppose that the application simply said I want to subdivide the property so that my daughter can have an independent commercial agricultural operation, would that have affected the way you review this whole thing? KAY: I imagine so, yeah. I mean we look at the application --. CHURCH: Is it possible that somebody could reapply with that? KAY: I suspect, yeah, certainly we can take a look at --. CHURCH: All right, thank you. KAY: -- commercial operation. 4 EXHIBIT A BEAUDET: Commissioner Whittemore. WHITTEMORE: I’m just curious. Could you geographically define for me where the Kona Coffee Belt is? It just seems like a broad brush. KAY: Yeah, you know, I apologize. It’s in the 2012 study. The General Plan isn’t clear. But I believe it starts at 3,000-foot elevation and goes mauka. It’s a band --. WHITTEMORE: I’m curious about the north-south boundaries. KAY: Yeah, I can get the information to you; I don’t have a copy of the study right now, but we can try and find that and get it to you. But I believe that, because it’s for both North and South Kona, it is quite an extensive band going through both Districts. WHITTEMORE: And so I’m assuming that the Department is treating that as sort of, the boundaries in which these kinds of requests, if they fall within that, then they have to, they almost have a negative, immediately a negative connotation with approvals of subdividing. KAY: Relative to the policy or course of action for protecting Agricultural, or Important Agricultural Lands, in the Coffee Belt, yes. WHITTEMORE: Okay. If somebody had approved water to accomplish – I know that the water is a question mark because there is nothing firm in place, although the Water Department has acknowledged availability – does that negate, still, the fact that it’s in the Coffee Belt area? KAY: So water is one of the things that we look at --. WHITTEMORE: One. KAY: -- as part of the overall, more comprehensive policy analysis, right. So we don’t just look at water as the main driving factor; it is a, it is a factor certainly, but, again, the criteria is conformance with the General Plan and also does it create a more appropriate land use pattern. And when we look at changes of zone, we do look at, you know, where have there, where is, has there been a precedent set, and so we are not just looking at this subdivision per se, but really kind of more the surrounding land areas. So should others have water and come in and say, hey, you know, we granted a rezone here, let me try and do it, then we have to look at that as well. So, you know, we are taking a more comprehensive view when we look at changes of zone. WHITTEMORE: Okay, thank you. BEAUDET: Commissioners, any other comments for staff? Questions? CHURCH: Yeah, I’m sorry, but I just wanted to get clarity on something here, and that is that it seems to me that the applicant’s forthrightness on what they intended to do with this has actually compromised their application somewhat, and that either by leaving out what they intended to do or 5 EXHIBIT A designating something else, because the area, surrounding area has a lot of single-family homes, might have actually resulted in a different evaluation. Is that possible, or am I just off-base? KAY: Well, we have to look at the application based on their representations made in the application --. CHURCH: I understand, thank you. BEAUDET: Chris, I just wanted to have a little bit of more conversation on the reference to the Kona CDP. Importing from it you have mentioned “consistent in scale with the transfer of lots.” Can you just add to that? What is “consistent in scale?” What -? KAY: You know, I don’t know the answer, I’m not sure what the intent of the particular language was. BEAUDET: Is it scale in accordance with surrounding properties? Is it scale to a number of family members? What is the scale? KAY: I’m not sure. Do you have stuff on that, Jeff? DARROW: It appears the intent was to allow further subdivisions specifically for family members. So it has to have to do with the particular concept. It’s just difficult because, again, dealing with what Commissioner Church is saying, if the applicants would have come in and said we are subdividing to do commercial agriculture; most people don’t come in to create smaller lots to do commercial agriculture. It’s clear the intent here is to create a smaller lot to have a house for an additional family member. So it’s just how we look at the overall picture. And, again, setting a precedent here, it’s not just in the current subdivision, it’s going to affect the entire area. And by allowing one-acre lots in this area could create some pretty high density in an area that’s lacking in infrastructure in this area; not only just with water but also the roadways are tough in this Hōlualoa area, mauka area. BEAUDET: Any further comments or discussions with staff, Commissioners? I’d like to call the applicant up, with that. Thank you, Christian. C. LIPPS: Good morning. BEAUDET: Good morning. I’ll have to swear you in before we proceed, so if you both could just raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Leeward Planning Commission? APPLICANT: Yes. BEAUDET: Thank you. So if you both could just introduce yourself, and speak into the mike for recording purposes. C. LIPPS: I’m Charles Lipps, and my wife -. 6 EXHIBIT A J. LIPPS: I’m Janet Lipps. BEAUDET: Good morning. Did you receive the Planning Director’s background report and recommendations? C. LIPPS: Yes, we did. BEAUDET: Thank you. If you could just proceed with your presentation. C. LIPPS: Okay, I’m going to try to set this \[mike\] on the table. So I’m a little nervous, so please forgive me if I stumble a little here. But I will, we are here today because we would like approval to subdivide our three-acre lot into two one-and-a-half-acre parcels. And I have read through the Director’s unfavorable recommendation, and I will as quickly as possible address the concerns. And I have, besides reading the Director’s recommendation and his report, I have also spent a lot of time reading the 396-page General Plan in an attempt to better understand its goals and policies. So with regard to the Director’s specific concerns, one of the things stated was the change of zoning is not consistent with the goals, policies, actions in the General Plan and would not result in an appropriate land use at this time. First thing I’d like to focus on is the land use. The Director states, “Important agricultural lands shall not be rezoned to parcels too small to support viable farming.” So if viable farming means economically viable, then I’m unaware of anyone in Hōlualoa that has a viable farming unit. It kind of goes back to what Commissioner, on Ag-3, what Commissioner Scott was talking about. I’ve been told by numerous people there that a minimum of five acres is required and even then it’s not possible unless the land is already paid for or you have a leasehold with very low monthly payments. The reality is that the existing land costs and paying a fair wage to these workers make viable farming impossible. I would much rather farm my land for income than what I do, but I would go bankrupt doing it. There is, I can’t, I can’t make money, I can’t make money needed to do that. So, my grandfather, he was a farmer in Indiana, and I spent many summer months out on the farm, so I appreciate farming and, but there is no way that viable farming is possible on my land in my opinion. The Director goes on to state that zoning requests are reviewed with respect to the General Plan, district goals, regional plans, and the other stuff stated by Christian. But one of the other things mentioned several times in that response was, “requested zoning in accordance with the existing or projected needs of the neighborhood” and “zoning requests shall be reviewed with respect to … public needs.” I strongly believe that one of the greatest public needs in West Hawai‘i is public affor-, is affordable housing. So 95, according to what I’ve learned on the General Plan, 95 percent of the Big Island is currently zoned conservative, Conservation or Agricultural land, and with that comes restrictions. So we have two adult children and three grandchildren living here, and they all rent. One-bedroom apartments in West Hawai‘i here right in this immediate area are 1,000 to 1,300 dollars a month for rent. So it’s very expensive for them to live here. And it’s impossible for them, when they are making 20 to 40 dollars an hour, to pay this kind of rent, pay everything associated with trying to have a young family, and then save ten to 20 percent that they are going to need for a down payment on land. They can’t do it, there is just no way that they can do it. So the General Plan states that “the proportion of the resident population requiring some assistance in purchasing a 7 EXHIBIT A home will continue to increase.” And the North Kona profile in Section 9 states, “In the North Kona District, housing problems for the low and moderate income groups have been particularly acute.” So in my application, I noted that providing, or their approving, my zoning change request will provide me the option of providing a build lot to one of our adult children. So this is really what it comes down to for us. The CDP allows for rezoning of areas currently zoned Agricultural, which “allows only a small number of additional lots, consistent in scale with the transfer of lots to family members.” And that, you know, that, consistent in scale, that is something that probably needs to be further determined, it sounds like. But it appears that the CDP recognizes the need for additional housing and made the provision for family to help family. And if my request doesn’t stay within those guidelines, I don’t know what does. So, yeah, I guess I, the Director acknowledges the “transfer of lots to family members” in the provision, but then states the same policy was intended to prevent the rezoning of agricultural property to allow agricultural subdivisions where the primary objective of the lot owner will be to have a residential estate. So my property is on Hiona Street, which is Keopu, it’s called Keopu Heights. This has long ago been established as a subdivision of residential estates within an agriculturally zoned area. I believe approving my zoning request will do nothing to negatively impact the agricultural use within the subdivision or the outlying area. I live in a residential neighborhood where farming is more of a novelty than a way of life. People on that street, they are not farmers. There are 35, there are already, of the, there are 35 one-acre lots already on Hiona Street, and five more adjoining mine directly to the south are between one-and-a-half and one-half acres. There’s many other neighborhoods and properties like ours already established on the slopes of Hualālai within the Coffee Belt. So I believe approving our request would not set any new precedents. The General Plan acknowledges that “agricultural lands are being sought for rural/residential estate use,” and that “agricultural land values have risen beyond their fair value for agricultural purposes.” I purchased my property in 2004 for 425,000 dollars. There was no agriculture growing on it; there was only cane grass, like six-foot high cane grass. Today there is avocado, we have white pineapples, lemons, limes, guava, bananas, grapefruit, oranges, we grow tomatoes, and this year our first harvest of lychee are on the branches. We do not sell these fruits; we give them away. We have planted thousands of beautiful plants, some native, on what was once nothing but overgrown cane grass. I would argue that the blanket policy that residential development within agricultural zoned lands is unfavorable, needs to be reconsidered and looked at from a different perspective. Many new residential properties on agricultural zoned lands now have more agricultural growth on it than before it was developed. Ours is one of them. The Director noted that I did not indicate that the agriculture listed above that we grow “are being sold to the extent that it would establish a viable farming activity on each of the subdivided properties,” and in the next sentence wrote, “the application does not indicate commercial agricultural plans for the newly created lot.” I’ve already said I’m convinced that viable farming is not possible there on any three-acre parcel, with land and labor costs of what they are up there. There is no form of commercial agriculture we can do there that would pay our mortgage. My wife Janet and I, we work 60 hours a week. We go to work every week to pay our mortgage. We can’t afford to not go to work; we cannot afford to farm. I was not aware that any commercial agricultural plans were required with our application. What I can tell you is if my zoning request is approved, I intend to invest in hydroponic farming equipment and, with my son-in-law, try to make 8 EXHIBIT A it a worthwhile venture. But I have no desire or intent to sell what we grow; it will be given away freely to others as it is now. While our property may be classified as Important Agricultural Land, I can tell you the soil on our property is far less than desirable in many areas. There are shelves of solid blue rock on our property. According to the report, the soil there is rated C, or Fair, and E, Very Poor, by the Land Study Bureau Detailed Land Classification System. In addition, the USDA Soil Survey stated this type of soil is used primarily for grazing and orchards. This is one of the reasons why hydroponics interests me. Grass grows now where we would like approval to subdivide. The Director also discusses, and Christian spoke about it, about the Coffee Belt and most of coffee is grown on five- to ten-acre parcels, with a significant amount of new coffee planted in fields of twenty acres or more. Our mauka neighbor, Bob Trubell, he planted approximately one acre of coffee about six years ago, and about, what was it, two, three years ago the coffee, the beetle borer became an issue, and two years ago Bob cut down all of his, all of his coffee trees. So I don’t have any desire to grow coffee, but I support the people out there that do by buying theirs. The Director also addresses his concern that my zoning could set a precedent should other property owners desire similar changes. So mine is only one of three parcels on, up in Keopu Heights that is not, that is not part of the Keopu Heights Neighborhood Association, so by that we are not bound by their restrictions, their CC&Rs. So I believe that the CC&Rs already keep them from subdividing. But most of, ours are the only three lots that are rectangular in shape; all the other ones that are part of the Keopu Heights Neighborhood Association are basically all three-acre square parcels at the top, those fifteen. And what they did was they put their houses, which I would have done the same thing, right in the center of the parcel. So I seriously doubt any of those people are going to try to subdivide their lot because they already have the house right in the center of the parcel; they would almost have to tear down their house to subdivide it to make it useful. And just to the south of mine there is, like I said, there is, even if I split, even if you would give me permission to split mine now, my parcels would be no smaller than the ones already adjoining mine. We’ve already spent thousands of dollars and hundreds of hours working to get where we are today in this change of zoning application. I believe the lengthy and difficult process and the related expenses already deters most people from submitting an application. But I am an optimist and I believe this is worth our time and our effort. I think it’s worth the, it’s worth our efforts and we have a lot at stake here, I mean, your decision today is very, very important to us. I understand and agree with protection of important agricultural lands as stated in the General Plan and the Director’s recommendation. I’m not someone who wants to pave paradise and put up a parking lot. In 2012 I was awarded the Puala Award for Environmental Awareness by the Kona-Kohala Chamber of Commerce for our reconstruction efforts after the tsunami at King Kamehameha’s Kona Beach Hotel. I’m a commercial general contractor. There we worked very closely with Tommy Hickcox who is president of Ahuena Heiau, and Tommy was very patient in teaching us the history, the culture and the protocol to follow while dealing with the aftermath of the tsunami, and trying to repair the beach and the rock walls and all the area out around the heiau and all that. We learned about iwi, and the whole new aerie was built to intern those in that. So we 9 EXHIBIT A have a tremendous amount of respect for Tommy Hickcox and this experience gave us a much better understanding and appreciation for the ‘āina. According to numerous sources, roughly 47 percent of Hawaii County is zoned Agricultural. Every day I drive on Māmalahoa through thousands of acres right up there that are zoned Agricultural that sit vacant and unused. In my opinion the reason so many acres of land within the Coffee Best sit idle is because it’s not economically viable. You can look at solar now; PV is now economically viable and it seems like everybody and their brother is getting solar panels. I believe that if, if farming and agriculture were economically viable in the area where we live, the slopes of Hualālai would be filled with activity. But they are not; the land sits idle. Queen Lili‘uokalani Trust has 1,188 acres in the Coffee Best near our home. While these lands sit vacant, while these lands that sit vacant may be being preserved for future agricultural use, it could also be argued that I and others have planted and grown more fruits on our small parcel than those with hundreds or even thousands of acres that sit idle. Coming from the mainland nine years ago, my initial and primary appeal to Hōlualoa was the, was the climate that allowed us to live without a furnace or an air conditioner and the views of the ocean. Since then we’ve come to appreciate the agricultural aspects of Hōlualoa. I, now I know how to cut bananas without ruining my clothes. We enjoy giving our apple bananas and white pineapples. Those seem to be the prized, prized fruit from up there. People, we love, we enjoy giving the stuff away. We never ground, before we moved here, we never ground our coffee; now we never have coffee without grinding it. We treasure Mr. and Mrs. Komo whose, her lot is to the south of us there, and their historical general store that is very close to us. We see how hard these coffee pickers work and the coffee shacks many of them live in. We respect these people and we are not trying to change, change them, the area or the culture. We love Hōlualoa and this is our home. We want our children and our grandchildren to live here. In conclusion, I believe we need to find balance in our efforts to protect the ‘āina and at the same time “promote the general welfare and prosperity of its people,” which is stated on the front page of the Planning Department website. I guess my question would be why can’t there be zoning that allows small residential subdivisions to co-exist within these large agricultural zoned areas? But the truth is, in my opinion, our property is already located within a residential subdivision that happens to be zoned Ag land. So approving our change of zoning request will have no negative impact on the existing cultural conditions within the Coffee Belt. It will have no negative impact on our neighbors. What approval will do is allow me and my ‘ohana to prosper together while living in very close proximity to each other in what we consider one of the most beautiful places on earth. I promise we will continue to treat the ‘āina with respect and teach our grandchildren the value of growing fruits and vegetables on our own land. We will continue to pay it forward and help others as we have been helped. The Director noted he “reserves the right to modify and/or alter this position based upon additional information presented at the public hearing.” And I hope my testimony today has helped, convinced you and the whole Commission here to issue a favorable recommendation. Thank you. 10 EXHIBIT A BEAUDET: Thank you. Thank you for your comments. Commissioners, any discussion or questions of the applicant? SHIMAOKA: I have a question. And this may be, I’m fairly new on the Commission, Duane, what’s the chances are of allowing exceptions to the rule? NOBRIGA: \[Inaudible\]. SHIMAOKA: Yeah, I realize that. But considering the fact that, like what he stated, that the lots that surround him, you know, are in the middle of their properties. So, I’m just throwing it out, as far as how much can of worms this is going to cause us. KAHOLO: I get one. You stated that there is a CRC in place with the other lots in your statement here --. BEAUDET: You know, Commissioner Kaholo, it probably would be good for the Director to address Sonny’s first, and then we can go from there. KANUHA: Thank you, Commissioner Shimaoka. The way I understand your question is, I’m going to answer but basically saying what we provide you is a recommendation, okay, so based on what we provide you, based on what the public testimony is presented to you, then the Commission can make a determination whether or not to accept the recommendation or provide a contrary recommendation, okay? Either way, our recommendation and the Commission’s recommendation, it goes up to the County Council and they make the final decision on the matter. BEAUDET: Go ahead, Commissioner Kaholo. KAHOLO: Okay. Yeah, in your statement I see you had some CRC for properties above you. Okay. Now, is it fair that we say yes to you and those guys can’t because you already got it in their paperwork? C. LIPPS: I believe that if someone wants to subdivide their --. SAUER: Please use the microphone, I’m sorry. C. LIPPS: Oh, I’m sorry. I believe that – that’s a good question, I haven’t really thought it through per se so much outside of my own situation, so I see where you are going – but I believe that if someone has a property that’s allowed to subdivide according to this, you know, what I understand is for a family member, then that meets the intent, because I believe that land is so expensive that these, a lot of these young people, they are never going to be able to have a place. KAHOLO: Tell me, I live in Kohala and Kohala is expensive. C. LIPPS: Right. It’s, they don’t stand a chance. So, I don’t know, it’s a big-picture problem that there is no real simple answer. One other thing I forgot to mention, too: I know there were three letters of opposition, but I also had, it should be mentioned, I had eight letters of support from --. 11 EXHIBIT A KAHOLO: Yeah, I’ve seen that inside your, yeah, yeah. But, see, the question I have in back of my mind is those people’s hands are tied versus yours, you know. Our decision based on, okay, what is fair? Now, is it fair that we give you what you want, and the other guys already got the CRC in place, you know, they can’t do anything because of what was in place when you bought those properties. C. LIPPS: Right. KAHOLO: So, you know, now, we’ve got to make the decision now. Is it okay for us to say yes to you, and the other applicants we say guess what, you’ve got paperwork in there, you can’t do anything with it. So, you know, we need to be fair on both sides. C. LIPPS: Right, right. KAHOLO: You know, whether it’s fair to above your lot and yourself. C. LIPPS: Right. KAHOLO: That’s a question we’ve got to, that’s an, I mean, answer we’ve got to come up with within the Commission itself. So, you know, that’s where I’m coming from. C. LIPPS: Right. But anybody that purchases property with CC&Rs, before they enter into the purchase agreement, they have the opportunity to read through that, and if they are not willing to accept those conditions, then they should not buy the property in my opinion. KAHOLO: No, I agree with you 100 percent there, you know; it’s a choice that they make when they approach, you know, the sale of the property, you know, that is in place, you know, you can’t do anything about it. But, you know, what we are looking at is because, one of the items there is the CRC, the other thing is concrete; once you get it down, you never can get it back up because what, agriculture is going away. Look at Honolulu. They are doing all that. You know, affordable home, like you said, everybody need homes. But, guess what, eventually, we are going to need the land to plant to take care of the people, and that is one other question that, you know, I have always in the back of my mind, which is I, we’ve got to take care of those lands. Once we lose the portion, it’s gone. C. LIPPS: Right. KAHOLO: Okay, that’s all I have. KAY: No, no, it’s okay, actually, this may help clarify that a little bit. I did ask Mr. Lipps, if he could, to locate a copy of those CC&Rs. Not sure what the extent of the Keopu Heights Unit 1 is, however, the language relative to subdivision says that “All times during the period these restrictive covenants are in force and effect. No subdivision lot shall be subdivided into any lots smaller than one acre in size for sale or lease and any such subdivision shall conform with applicable governmental regulations.” So this is saying that it is still possible to subdivide in those other 12 EXHIBIT A three-acre lots but just no smaller than one acre, so there would be a limitation there according to this document. And I can pass this along. BEAUDET: Let me just interject, okay? So we are talking about CC&Rs that are not related to the applicant. KAY: Correct. BEAUDET: So the CC&Rs of a neighboring subdivision shouldn’t factor into our decision; our focus should be on the regulations and the restrictions that guide us to make the decisions that we make here, not the restrictions on neighboring property. They bought into that knowing that, and it shouldn’t influence our thought process, yeah? Okay, I mean we have in black and white what guides us to make the decisions and the recommendations that we have here, okay? CHURCH: I agree with what you are saying, but I would like to make a comment with regard to the fairness question, which was raised by another Commissioner, which I think was a good point. However, with the CC&Rs, I want to point out to the Commissioners that it will be possible for people within the subdivision to modify those CC&Rs. And with unanimous approval, I haven’t read the CC&Rs myself, but there is a mechanism that these people could change the language of the CC&Rs to modify it, so the subdivision, so I think that the issue of fair play in my, in front of me, is not really a factor because there are ways to level the playing field, if everybody wanted to do that. KAY: One more thing to clarify: These CC&Rs were given to Mr. Lipps when he bought the property nine years ago. So they may have changed in the interim. But just to clarify that. One more thing, Mr. Whittemore, I did find the CTAHR finds the Coffee Belt as 700 to 2,000 feet in elevation, 20 miles from Palani Junction to Pu‘uhonua Road; so it’s a 20-mile strip from 700 to 2,000 feet elevation. BEAUDET: I have one question for staff, maybe Jeff. But adjoining properties, the lots, yeah, to the bottom of the photo, you know, they look like they are one acre or less. Do we know when the subdivision took place? KAY: Yeah, we, thank you, Mr. Chair, yeah, we did do some research on that at the applicant’s request based on the differences in lot sizes that don’t conform to the zoning. It looks like the half-acre lot right here that’s zoned Ag-3 but is roughly 0.51 acres, was created in 1958 prior to the adoption of our zoning laws in 1967, and it was also covered under the subsequent change of zone. This whole area was Ag-5, the zoning was changed to Ag-3 in 1972. These other five lots here that area zoned Ag-5, but obviously smaller than five acres in size, were created through a parcel consolidation and resubdivision process in 1990 and 1993, respectively. The process doesn’t require the resulting lots to meet the minimum parcel size requirements in this case, Ag-5. So, yeah, the applicant’s parcel, this subdivision here, the three-lot subdivision, was done in 1989, and they were required to meet the three-acre size limitation. 13 EXHIBIT A Okay, and down here this particular Ag-1 zoning was put in place at the same time that the Ag-3 zoning was put in place, so this whole section here was rezoned at the same time. So the makai area here that’s Ag-1 looks to be roughly one acre in size parcels as well. We went back and looked at the file, the rezone file, back in 1972 to see if there was any justification as to why they did it that way; there really wasn’t any in the analysis or in the transcripts from the meeting. BEAUDET: Commissioners, any further comment or discussion? I’d like to ask the applicant if you want to comment on any of the discussion that we had here. C. LIPPS: Yeah, I would just like to reiterate that there are 35 --. SAUER: Microphone, please. C. LIPPS: Oh, I’m sorry. There are 35 one-acre lots at the makai end of our street, so, it’s, I just don’t feel like subdividing that is going to have any negative effect on the neighbors to the south or anywhere. That’s our opinion. KANUHA: Mr. Chairman, I had a question for the applicant. Is your real property taxes based on being agriculture or residential or what is it? C. LIPPS: No, I think, I don’t know what it is – oh, I’m sorry – I don’t think we claim agriculture at all; we pay like, it’s over 6,000, almost 7,000 dollars a year on property tax, and going through all these maps around me, I seem to pay a lot more taxes than other people, so. I know we pay over 6,000 dollars a year, almost 7,000 dollars a year on property tax now. KANUHA: Okay, thank you. C. LIPPS: So I don’t think we get it. BEAUDET: If there are no further comments or questions for the applicant, we can move forward. Thank you. Thank you for your presentation and your comments. Okay, if there is anyone in the audience who wishes to testify? Would you please sign in on the sheets of paper behind prior to coming up? Would you please raise your right hand? Do you swear to tell the truth now and before the Leeward Planning Commission? ZWICK: I do. BEAUDET: Could you please state your name, and speak clearly into the mike? ZWICK: Vera Zwick. And I live on an adjoining property, the little one that’s three quarters of the neighbor, third one down. I bought in 1994, 1995, and I understood the place back of me would never be subdivided, so I bought there. Now, on his property it shows that he has a big garage right next to the house. There is also --. SAUER: Excuse me, ma’am, could you hold the mike closer. 14 EXHIBIT A ZWICK: Oh, hello? Also, the property down below is a big garage with two hobby places; well, they are not mainly used for hobby, I believe. He has an office in the King Kam and then all the supplies and building materials that he needs are put there, and there is big truck traffic going to his property. I personally don’t believe that he is going to build a house for his daughter because I’ve seen her, and he’s not real nice to the kids. So what child would want to live within a stone throw of the parents? I believe that he wants to build a house and make money, and then it will be not of classy house, either. Knowing --. BEAUDET: Excuse me, ma’am? Ma’am? The purpose of having testimony is to express your support or nonsupport of the application. And so I would prefer that we just state that rather than state beliefs or make character references. ZWICK: Okay, well, who do you know builds a huge garage and two offices, one on each side of the garage? BEAUDET: Testimony is fairly simple; do you support or not support the application. ZWICK: I do not support. BEAUDET: Thank you. Would there be any other people in the audience wishing to testify? If you want to respond to the comments, then I’ll ask you to come back. C. LIPPS: I would like to respond to that. My offices are on the ground floor of the King Kam Hotel. I sent stuff to Christian, telling him that I can send you copies of my leases; I lease warehouse space at Power Storage on Kuakini. We do not operate our businesses up there. Christian, unknown to Ms. Zwick is that Christian came to our place, he walked through these buildings, and I believe he will testify that we are not conducting business up there. As far as the stuff with my daughter, that’s, I don’t know, I won’t even address that other than I just want to also mention that it should be noted that I believe Ms. Zwick has a personal agenda here because in 2004 she plead guilty to a class B felony that she committed on my property, and as a result of damaging very large monkeypod trees, she agreed to pay me 27,500 dollars to, for the removal of those trees. So I think you’ve got to take her testimony with a grain of salt. Thank you. BEAUDET: Being that there are no more members of the audience wishing to testify, I’d like to ask the Commissioners for a motion to close this public hearing portion of the meeting. SHIMAOKA: I move to close. BEAUDET: Is there a second? WHITTEMORE: Second. BEAUDET: All those in favor? COMMISSIONERS: Aye \[unanimous\]. 15 EXHIBIT A BEAUDET: Thank you. With no further discussions that I’m aware of, I’d like to ask the Commissioners for a motion to action. KANUHA: Mr. Chairman? BEAUDET: Go ahead. KANUHA: Before the Commission either goes into further discussion or, you know, for their consideration on this particular application, I want to make a couple of comments in regard to this application and just planning in general. On its face, you know, given the existing surrounding neighborhood that this application is in, it didn’t look like supporting this rezoning would, you know, be adverse relative to what the applicant is proposing to do. Nevertheless, though, our responsibility is to take a look at the impacts, land use-wise, to the larger area involved here. And basically the difficulty here is to reconcile past planning decisions, right, based on whatever information they had back then, to the current planning situation we are in; we compute into what we need to look at in terms of a long range viability and sustainability of the area, a whole lot of other factors, okay? So the information that was available or the thought process that was utilized when this area was rezoned, you know, way back in the 70’s, the only document back then for guidance actually was probably the General Plan, and the General Plan just got on board at that time. We fast forward to today, we have a number of other planning documents that we utilize as references when we come up with our decisions. And the recommendation we are making today is not specifically based on nonsupport of what the applicant is attempting to do; our recommendation is based on our responsibility to look forward in terms of, you know, potential land use, because we’ve seen, and I think those of you who have been involved in commissions like this in the past, that precedents always is there. And it’s tough to draw the line in terms of where, you know, where the line gets drawn because of a particular denial or particular recommendation of a specific application. Unfortunately, a lot of us don’t go any further, I guess, than looking at the colors on the zoning map, you know, and seeing whether or not there is consistency adjacent to that; whereas in the real life situation what we have to look at is, you know, traffic impacts, and in this case water may be, you know, a potential issue for other projects going forward. Again, nevertheless, we can provide as much information to potential applicants, surrounding properties in term of what they may or may not want to do. And when that application comes before us, that’s when we have, you know, other resources that we can make a decision on. So again, this is not a deal-breaking situation. What we are starting to see is that, not only in Kona but also on the east side of the island, is situations real similar to this, you know, fringe applications for down-zoning, which have about pushed the limits of infrastructure capability, primarily water, and that is basically why we are taking the position that we are taking on this. Again, it’s a recommendation to the Commission. Do realize you are not professional planners and that’s your role; your role is to bring to your decision-making the particular skills that you have being on the Commission, right, community people, retired folks, you know, different kinds of perspectives. So, you know, with that, that’s kind of what I’d like to leave you with. It’s not a professional versus a personal type of recommendation. We recognize your role and we recognize what you bring to your, to the decision when you make it. And again, what we are doing is giving you our recommendation based on our responsibilities to always be looking forward and to ensure 16 EXHIBIT A that -. Essentially, the Commission or the Council, by not having the proper information to make a recommendation, ends up making a decision that could impact subsequent decisions, is basically what I’m saying. Thank you. BEAUDET: Thank you for those comments, Director. It brings a lot of stuff into perspective for us, I believe. Commissioners, any further discussion before moving for a motion? CHURCH: I would like to make a motion. BEAUDET: Are you going to have a comment or are you going to make a motion, Commissioner Unger? UNGER: Well, go ahead and hear the motion, because we can continue our discussion --. BEAUDET: After. UNGER: -- after the motion. BEAUDET: Yeah. UNGER: Okay. BEAUDET: Okay. Okay, Commissioners, I’d like to ask for a motion to action. CHURCH: I’d like to make a motion. BEAUDET: Just speak in your mike, please. CHURCH: I move that a favorable recommendation be forwarded to the County Council on the application for a Change of Zone, Docket Number REZ 15-187, for the following reason: The application overall in my opinion is not inconsistent with land use, zoning and other State and County policies and statutes. BEAUDET: Ask for a second. WHITTEMORE: Second. BEAUDET: It’s been moved for a favorable recommendation by Commissioner Church and seconded by Commissioner Whittemore. Discussion or comments before we move to a vote? UNGER: Comment. BEAUDET: Okay. UNGER: Thank you, Director Kanuha, for your comments, and I agree with those comments. The situation before us is not black and white; it’s about interpreting the plans that we have in front of 17 EXHIBIT A us. And a few things that resonate with me, number one, is what sort of precedent are we setting, and if this is approved, certainly other landowners can come in under the same situation, apply for rezoning and expect to get rezoned. But if we look at this, and that again is in the backdrop of what is our community development plan, what is our future, what are we looking at in the future, the backdrop is agriculture. I know the Community Development Plan is really heavy on the Coffee Belt, and I appreciate that. Kona coffee is synonymous with Kona. It is important that it gets the recognition, and in every instance when situations come up, Kona coffee should be protected. Those agricultural properties should be, the coffee industry absolutely should have a priority in that kind of thinking. So if this subdivision is approved, the precedent I see setting is that you are in a residential estate type subdivision now where right now the public utilities are there. Public Works signed off, Water signed off, it is not restricted through CC&Rs, there are other half-acre lots in the neighborhood with three-acre lots, with five-acre lots; so actually, by approving something like this I’m okay with the precedent. The precedent says if another property falls in this category, then it probably should be approved. If it’s outside, and again, this is a difficulty of our Commission and the Planning Department and the public how, we have the General Plan, how do we balance the General Plan with real life situation, what is actually on the ground. Will this impact the coffee industry? Probably not. If they want to grow coffee on their property right now, they would or would not, if this goes in to three one-acre lots, which it could, regardless of if they pass it on to their daughter or not, would this impact the coffee industry? I would say someone could do a half-acre coffee on each of these lots and really not impact the coffee industry. So, again, it’s balancing the General Plan with specific situations, and in this case I believe that a rezoning is in order. So, thank you for this opportunity. BEAUDET: Thank you, Commissioner Unger. PATEL: Okay, so just picking up, before we get to the vote, if a favorable recommendation passes, we would need to continue the Commission’s decision on the Findings of Fact, Conclusions of Law; so we would need time to prep that. So if the Commissioners could elaborate perhaps a little further on specifically, you know, what they are looking at as far as the General Plan, that will give us the insight we need to be able to prepare the Findings of Fact necessary. And I would suggest, if you look at the Planning Director’s recommendation, you know, some of the requirements are outlined, so if there is anything in there that you don’t agree with, it will be helpful, you can point that out. If there is anything else, point that out as well. \[Secretary’s note: Commissioner Nobriga left the meeting at this time, 10:45 a.m.\] CHURCH: I think that, I read the recommendation by the Planning Department and I read carefully the applicant’s response to that, these things are, as the Planning Director said, interpretive and there’s some subjectivity to this. Whether the applicant’s application is in conflict with any specific provision that was brought up by the unfavorable recommendation, I found very difficult to find; it was subjective. And I found that the response both orally and in writing by the applicant was compelling. I, without having to go through every one of those points that was raised, I don’t think the Commissioners want to hear it again, I found that overall, as I said, I did not find enough definitive conclusions on the part of Planning Department to disapprove this application. So I would recommend that you go back and take a look at these specific counterpoints that the applicant made for further analysis and comment. 18 EXHIBIT A DARROW: Mr. Chairman? BEAUDET: Yes. DARROW: Question. This question would be for Counsel. Just a request for clarification how to proceed in this manner. This is similar to a situation we were in recently in Hilo. We have two options: One is to hold the vote and prepare proposed Findings of Fact, Conclusions of Law and Decision and Order, with conditions, to allow the Commission to review that, and request any changes prior to taking the vote; or, they could also take the vote today to see if the actual vote passes, and then again prepare Findings of Fact, Conclusions of Law, and conditions, and then come back and approve the report. So if you have a suggestion which way to go. PATEL: Yeah, my suggestion would be to, since there has been a motion and a second, to postpone the vote, we could prep the Findings that would be circulated to the Commissioners, and then the action and the vote could be taken at the next meeting. Then you will have specifically what you are looking at, or, you know, the recommendation specifically in front of you. DARROW: Thank you. Also, just for your information, Commissioner Nobriga had to leave, but before she left, she did present us with her vote. So when it’s time for her vote, we can place that on the record. PATEL: And just to follow up, if it’s going to be postponed to allow preparation of the Findings, then we would need a motion to postpone, to defer until the next meeting. BEAUDET: Commissioners, if there is no discussion on the options that were presented by staff, I would like to ask for a motion. CHURCH: I’m sorry to be the troublemaker here. I think that the Planning Department’s unfavorable recommendation was very well written and very comprehensive, as did I think that the response by the applicants was, too. And those were, they were read by the Commissioners, which I believe they were, and understood fully, and I would be in favor of taking a vote now; I don’t, I’m not sure exactly what else can be brought to our attention at the moment, which would sway my opinion. So to that extent I just give you, Mr. Chair, my position, and respect what you decide to do. BEAUDET: Also for consideration as we move forward, given the situation that we are in now, you know, when the Findings and the conditions come back, would we have to vote again on the conditions as written, if we were to change the recommendation? KAY: If I understand your question correctly, if you were to defer and wait for us to prepare a favorable recommendation with conditions, then, yes, you would have to vote on that at the subsequent meeting. BEAUDET: So a vote today, rather, if it’s in support of a favorable or not in support of a favorable recommendation, or the motion as stated, how does that impact the conditions --. 19 EXHIBIT A KAY: Well, because we --. BEAUDET: -- if we were to change the, yeah. KAY: Because we recommended unfavorable, we did not prepare any conditions of approval, or favorable conditions. So we would need the opportunity to draft standard and application-specific conditions. KANUHA: Mr. Chairman and Members of the Commission, in essence what we would be doing is we would be providing you a favorable recommendation with, there is a number of standard conditions that go along with favorable recommendations, so those standard conditions would be included for your consideration, as well as, you know, any applicable conditions that apply just to this specific application. So if you postpone the vote today, then at your next meeting what essentially you would have is you would have two recommendations, okay, one unfavorable and one favorable, and then I believe at that time you, you know, you can call for the question and the vote will go whichever way it goes. But at least from that standpoint you would have both sides of the arguments prepared for you. BEAUDET: And if we voted in favor of the motion today, then we wouldn’t have, or all we would have for consideration would be the new recommendation with conditions. KANUHA: Well, if you --. BEAUDET: I mean, the motion stands, right? KANUHA: But there is a motion on the floor, but the motion is in support. What you have in front of you is a recommendation, is an unfavorable recommendation, and because the recommendation is unfavorable, you know, there is no conditions --. BEAUDET: Correct. KANUHA: -- going forward. So like Jeff mentioned, there’s two ways to go about this, and I think what your counsel is recommending is that you vote to defer action on this, knowing that there is a motion on the floor for a favorable recommendation, defer on it, we will come back and provide you with a favorable recommendation, standard conditions and specific conditions of approval relative to this specific application. And when your next meeting, at your next meeting you’ll have two recommendations, and at that time there’s a motion on the floor; you can either go with the motion, there may be a new motion that can come up, but it’s basically a clean slate. But the indication is, or the direction is, for us to provide a favorable recommendation for your consideration as well. Does that make sense? PATEL: If I can add, Mr. Chair, so just basically keeping it simple, the bottom line is if the Director’s recommendation was favorable, what happens normally under normal circumstances is that proposed conditions would be attached to the recommendation as a standard, because if you are going to do a change of zone, you know, any property owner is not going to have free reign to do 20 EXHIBIT A what they want. So in other words, in order for us, or for the Department, to come up with the conditions that would be necessary in forwarding the favorable recommendation onto the Council, there is, we need time to prepare that basically. CHURCH: Mr. Chair, as the person who made the motion, I’m supportive of the Planning Director’s recommendation to move forward, accomplish the presentation of both a favorable and unfavorable recommendation to the Commission, with conditions, which would be attached, which are satisfactory to a favorable recommendation. I’m supportive of that. WHITTEMORE: Second. BEAUDET: We can, can we use that as the motion? KAY: So it would be a motion to defer? CHURCH: That is correct. KAY: Okay. BEAUDET: Yeah. Commissioners, a second? WHITTEMORE: Second. BEAUDET: It has been moved by Commissioner Church for deferral of a decision on the motion that is now on the floor, and seconded by Commissioner Whittemore. Do we vote, or just all in favor? KAY: I think you have to vote individually. BEAUDET: Okay. KAY: Okay. Commissioner Church? CHURCH: Yea. KAY: Commissioner Whittemore? WHITTEMORE: Yes. KAY: Commissioner Kaholo? KAHOLO: Yes. KAY: Commissioner Shimaoka? SHIMAOKA: Yes. 21 EXHIBIT A KAY: Commissioner Unger? UNGER: Aye. KAY: And Chair Beaudet? BEAUDET: Aye. KAY: Okay, motion carries, six to zero. BEAUDET: So staff will be working on the second recommendation, which will be the favorable recommendation, and they will be notifying you in the near future of the conditions that will accommodate the favorable recommendation. Thank you. The discussion ended at 10:54 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 22 EXHIBIT A