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HomeMy WebLinkAbout2015-12-03 Hearing Transcript - Cellco Partnership dba Verizon USE 15-055 WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT DECEMBER 3, 2015 CELLCO PARTNERSHIP A regularly advertised continued hearing on the application of DBA VERIZON WIRELESS (USE 15-055) was called to order at 10:07 a.m. in the County of Hawai‘i Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i with Chairman Myles Miyasato presiding. COMMISSIONERS PRESENT: Myles Miyasato, Donn Dela Cruz, Gregory Henkel, Donald Ikeda, and Raylene Moses. ABSENT & EXCUSED: Charles Heaukulani. ALSO PRESENT: Duane Kanuha (Planning Director), Danny Patel (Deputy Corporation Counsel for the Windward Planning Commission), Kelly Gomes (Representing the Department of Public Works), Daryn Arai (Planning Program Manager), Lucas Mead (Staff Planner), Maija Jackson (Staff Planner), Christian Kay (Staff Planner), and Sarah Hata-Finley (Commission Secretary). And approximately 11 people from the public in attendance. APPLICANT: CELLCO PARTNERSHIP DBA VERIZON WIRELESS (USE 15-055) Continued hearing on the application for a Use Permit to allow the construction of a new telecommunication facility, including a 185-foot tall steel monopole with 8-foot tall panel antennas and related facilities within a 1,600 square-foot portion of a 17.824-acre parcel situated in the County’s Agricultural 5-acre (A-5a) zoning district. The property is located on the south side of Komo Street, across from the Kaʽawale Boulevard–Komo Street junction, ʽŌlaʽa Reservation Lots, Puna, Hawaiʽi, TMK: 1-8-007:Por. 045. MIYASATO: Item No. 6, Applicant Cellco Partnership dba Verizon Wireless. MEAD: Good morning, Commissioners. MIYASATO: Good morning. MEAD: All right, so this was a continuance for Use Permit 15-00055. We heard the presentation at the last meeting so I’m just going to move forward to the location and give a quick overview of what, what the project entails. The project site is located here at 18-4253 Komo Street. It is—the project there, the project site is the dotted yellow square. It’s a 185-foot proposed monopole telecommunications tower. And, at the last, the last meeting, there was a request for standing in a contested case, and the 1 EXHIBIT C Commission did deny, deny the standing. We do, there are no changes to both the Director’s recommendations and proposed conditions, so it essentially remains the same as was seen last time. And, we do have the applicant’s representative here. MIYASATO: Commissioners, any questions for staff? If not, can we have the applicant or representative please come forward? Could you raise your right hands? Do you swear or affirm to tell the truth on this matter now before the Hawaiʽi County Planning Commission? FOX/SHAFFER: I do. MIYASATO: State your name and residence. SHAFFER: Corey Shaffer, 67-259 Kukea Circle in Waialua, Hawaiʽi. FOX: Keoni Fox with Aliʽi Wireless Specialists, 45-955 Kamehameha Highway, Kāneʽohe. MIYASATO: Do you have anything to add or any comments? FOX: I wasn’t here at the last hearing so I’ve since been engaged by Verizon to assist with the, the application. But, it is my understanding there were a number of concerns that were raised, and I’m here today to, you know, address those—any, anything that’s still outstanding that may affect your decision today. MIYASATO: Commissioners, any questions for the applicant? If not, thank you. We have a testifier, John McGuire. Please come forward. Raise your right hand, please. Do you swear or affirm to tell the truth on this matter now before the Hawaiʽi County Planning Commission? MCGUIRE: I do. MIYASATO: State your name and residence. MCGUIRE: My name is John McGuire, and I live at 18-4173 Komo Street for 22 years. MIYASATO: You have three minutes. Go ahead. MCGUIRE: Okay, I oppose this tower. I’m going to stick to the roadway for, for now. I oppose this tower because Verizon has not shown in their design flood—how they’re gonna deal with the flooding of the area. Lot 45 should not have been subdivided. It’s a flood prone parcel, and lots of illegal bulldozing activities has been going on and water has been diverted not only into my Lot 39, but also into Lot 80 from this property, which I can prove. When I purchased this property, when I purchased this, here’s a US Department of Interior map, when I purchased this property over 15 years ago, Komo Street was a private road. It belonged 2 EXHIBIT C to a private subdivision, and there were no provisions for my driveway. I bought this property from W. H. Shipman with a paper access, and this paper access came—we had it recorded in 1996, I believe, with the Bureau of Conveyances in Honolulu. I have some pictures of what’s been happening--when it divert water into the forest, and then they cover it up with debris so nobody can see the natural flow of water. The Google Earth map that they provide, Verizon provides, is hand drawn in. You cannot drive this square. You cannot drive this square, and I also believe that I’ve, I’ve been denied my right to a petition today and the last time, 11/5, because I was not notified. I found out about this meeting yesterday afternoon when I picked up the, the minutes at this hearing. Here also is a US Geological Survey photograph of when I purchased the property. My driveway was a pig hunting trail, and I don’t know when the County acquired the rights or when they bought out the subdivision or how they acquired the street, Komo Street. But, Komo Street was not a County Road. Komo Street came off of Oshiro Road after the second bridge, and it was, and you guys can look at this if you want but I’m going to keep this cause it’s the only one I have. I’m of Hawaiian ancestry. My name is John McGuire. My father was John Davis McGuire. My descendancy goes back to Isaac Davis and King Kamehameha the First. And, I feel that this is not enough time for me to prepare. I could not hire a counsel. And, as far as the tower goes, this is where I live right now. I marked out my property. This comes from the US Fish & Wildlife Service. Both sides of where they plan to put the tower is, is a--endangered species area for the Hawaiʽi Hoary Bat. You guys can look at this also, but it’s the only one I have. They planned to put it right here. Right on Lot 45 is a nesting area for the Hoary Bat, and the tower will interfere with its, with its operation and its navigation cause the bat is like a whale. It depends on sonar and radar to travel. Here’s a document from, from the Fish & Wildlife. The Hoary Bat is on number one critical habitat for Hawaiian species, and I feel that I have not seen an environmental impact statement, and I feel that I’m being abused by, by Verizon and the County at this time. The reason I’m saying that is because I spent more money on putting this road in than I spent on purchasing the property from Shipman. I have $300,000 into this road because the County made me keep a licensed surveyor on site to shoot grade. I had Donald Murray from Murray & Murray which cost me a lot of money. And, they made me haul all the debris away. Nowadays, the bulldozer guys—they only bulldozer that’s on the mountain is Stephen Branco. Anyone behind the gate, any bulldozing activity back there is Stephen Branco. There has not been another bulldozer operator out there in ten years. That said, I think that I’m being taken advantage of. There’s no, my gate has been there for 15 years, and now all the new owners, all the old owners have sold their properties that used to live there. You know, Peter Daub and all the different owners. And now the new owners, I don’t know who they are, but Lot 45 should have never been subdivided out of 50-acre piece because if you look—I don’t have enough time to—this is kind of rude in a way, three minutes—but, if 3 EXHIBIT C you look at the design of, of the, where the thing, where the thing is going to be built, if you notice, there’s a dotted line that goes through the middle. That is a government flood plain. The USDA spent thousands of dollars to put that in. And the next lot above it, the next lot above 45, has a storm catch in it. Just like on, I don’t know if you’re familiar with Kulani Road, but when you make a right on Kulani Road, right there on the left, there’s a storm drain, a big, giant storm drain. You go up Highway 11, make a right on Kulani Road. The same storm drain exists right above this site where, where they plan to build the Verizon tower. The bulldozer activity up there has been, has been systematically diverting the water away from this property 45 and is flooding unsuspecting people. The Lotus Blossom Temple doesn’t even know that they’re getting flooded right now. There’s all kinds of people that don’t know because there are property owners that don’t see what’s going on. MIYASATO: Mr. McGuire, could you summarize? MCGUIRE: Pardon me? MIYASATO: Could you summarize, please? MCGUIRE: I don’t believe that this tower should be built until all the water is restored to its natural flow and the issues of my driveway are—I believe that the driveway, I built the driveway, and I have never written anyone easement, and I have it recorded at the Bureau of Conveyances, and all of a sudden it’s a County road. It’s a County road, is they claim. But, I was never notified when the County was taking my road from me. MIYASATO: Thank you. Commissioners— MCGUIRE: --Thank you for your time. Sorry I talk loud. I was trying to rush— MIYASATO: That’s fine. MCGUIRE: You folks have a nice day, and thank you. MIYASATO: Thank you. Commissioners, any questions? MCGUIRE: Oh, and I have one more thing to say. I did file a complaint with the Planning Commission because of the unfairness of this hearing which I have no response for. I mailed it thth out on the 25, and I also filed a complaint with the Director Kanuhua \[sic\] on November 10 because I believe that County employees should not be working for Mastec or because it’s a conflict of interest that County employees are representing both the County and, and Verizon and Mastec. I feel that’s a violation of trust in government. MIYASATO: Thank you. JACKSON: Do you want me to pass any of this around? 4 EXHIBIT C MCGUIRE: They, yeah, I would like it back. This is what, this is what’s been going on up there. It’s just one example. This is the original map when I purchased the property. It says Department of Interior on it and everything. This is from the US Fish & Wildlife, and this goes with it. It shows that it’s one of the most—if the bats are no longer on Lot 45, that means Mr. Branco or the new owners bulldozed them which is a, which is a violation of the—it’s a violation of the Federal Endangered Species Act and a violation of the Federal Clean Water Act. And here’s—thank you, here you can have this, too. I don’t know if you guys seen this or not, my complaint. JACKSON: They’ve got a copy of that. MIYASATO: We have a copy. We have a copy of that. Thank you. MCGUIRE: And, ok, thank you. Yeah, and I feel this is a joke because I don’t mind spending $200. I don’t mind spending $200, but I believe this is a joke. As a Hawaiian, I was born before Hawaiʽi was a State, and I believe this is a violation of, of my rights. I’m a conservation farmer, and I, and I practice cultural practices. I raise native species, plants for cultural practices. To give you an example, I’m the guy that makes the 20-foot lei, 20-strand, for the King Kamehameha statute every single year for the Kamehameha Alumni Association. Only Kumu Chun and people like that know that, and I, I just feel like I’m being railroaded and that, that I have to, I lost 50 acres. I had to sell 50 acres to Stephen Branco in order to cover the cost that First Hawaiian Bank to pay for the, for the money to build the road, so now I’m going to get freeloaded on it. Verizon, a multi-billion dollar company, is going to go build a tower on my easement, and Lot 45 who originally didn’t want to participate in the road, and the University of Hawaiʽi property on the other side also has Hoary Bats in it. And it’s a nesting site for Hawaiian owls. I can prove this, but I didn’t have enough time to have the US Fish & Wildlife people come with me. So that’s—I’m sorry, I talk so much. MIYASATO: Thank you. MCGUIRE: And I have a 20-year conservation plan with all my documents from, from everything that I was made to do. MIYASATO: Thank you. You can have a seat. MCGUIRE: Okay, I’m sorry. Thank you. And I also have pictures where they covered the storm drain in front of the house, cause there’s a concrete storm drain that goes along that highway that’s been buried, yeah? MIYASATO: Could I have the applicants please come back to the table? Just as a reminder, you’re both still under oath, yeah? Would you—you have a response to the comments? FOX: Yeah, I’ll do my best, Commissioners. Okay— 5 EXHIBIT C SHAFFER: Just I, I sympathized with Mr. McGuire, a lot of his, the things he said, but the first thing he said is that he wasn’t notified. We were all here one month ago. I had the opportunity to, when he was denied standing for the contested case hearing, I had the opportunity to just push this application through, and I decided to not do that because I wanted Mr. McGuire to have that notice, and have the opportunity to, you know, get the hearing that he wanted, and apparently, he did not pay the, the money or submit, you know—he knew. To say that he wasn’t notified about this, I think is a little disingenuous because I intentionally postponed this hearing till today so that he would have the opportunity to spend the money and get a contested case so that we could have the time, more than the three minutes he was just allotted, to go through these issues. So, I do take exception with that notification. He was notified. He was here 30 days ago. A lot of the things he brings up regarding flooding, endangered species, and a lot of these other issues are issues that Verizon is required and is going through as part of the process to build the site. So, I don’t know any of the history about the County roads. Obviously Verizon wasn’t involved in any of that. So, we can’t speak to all those old, you know, ten, twenty years, and hundreds of thousands of dollars. That’s just outside the scope. We came to this project as basically today, and the history of the land is essentially unknown to us at that time. So, that would be my, the first things that I would have to say. FOX: I just want to add that I do appreciate Mr. McGuire’s comments. As far as the flooding, it does look like there is an easement on the property to, to take care of flooding. As part of the Plan Approval process, we have to address drainage on the site. I gotta remind you that this is a 17-acre property, and we’re, we’re—the project is, it’s only 1,600 square feet. It’s a very small area, but we will effect, you know, any offset with drainage. Mr. McGuire had some concerns about the bats being on the property. To my, to my knowledge, the project site, the project area is just grass. We’re not removing any trees where the bats could be nesting. And, with other projects, when we’ve done consultation with Fish &Wildlife Service, they have asked that we not do construction or remove trees or prune trees during certain months of the year when the bats actually nest at the site. And, so that’s, that may be a condition that Fish & Wildlife service puts on, on Verizon themselves in the future. And, like my colleague said, Corey said that we don’t know all the history of the property and how it got subdivided. It is my understanding there was a letter from Department of Engineering that stated that Komo Drive is a public road so, you know, since we’re gonna be leasing space from the property owner, we would like to use that public road to access the facility. I don’t know the history about the gates or anything, but in discussions with the landowner, it’s my understanding that all of them, all the property owners in that area all have access through that gate. And, let’s see—I think that’s it, but please let me know if you have any other questions or I haven’t addressed anything. MIYASATO: Commissioners, any questions? I have a question. You know, in selection of this site, during that process, were other sites considered? 6 EXHIBIT C SHAFFER: Yeah, there were several other sites considered. I did not do the site selection myself. But, from my perspective, from an engineering perspective, we essentially have, you know, a large coverage hole, so my job is to circle an area on a map and say anything within this area is suitable. And then our consultants go out and look at all the sites available, and for various reasons, this turned out to be the best, the best location within the coverage area. MIYASATO: Okay, thank you. KANUHA: Mr. Chairman—I have, I have a question. Are you leasing the entire property or just the site for the tower? SHAFFER: Yeah, just the site for the tower. KANUHA: Are either of you familiar with the components of that lease? Able to speak to it? What I’m getting at is does that lease or either the parcel or that area for the tower, does that, does that lease also include the right of access to the property or to that specific site for the tower? FOX: I did not negotiate the lease, but typically, the lease says, do specify how you’re gonna access the site on the property, so it would have addressed this 40-foot gravel road which comes off of Komo Drive into the property only. But, since Komo Drive was determined to be a County road, that issue was not addressed in the lease. KANUHA: Okay, thank you. MIYASATO: Commissioners, any questions? Thank you— IKEDA: --Yes-- MIYASATO: Commissioner Ikeda. IKEDA: To reach your so-called proposed tower, is it possible to not use the Komo Drive and go through the, another way to the, to the parcel? I mean, it’s a big area, and what if you went not using Komo Drive but went some other way because I understand Mr. McGuire’s problem. I would feel the same way that he does. FOX: I think that’s a good question. I mean, I think physically a road can be created. You see where the house is on the property— IKEDA: --Right— FOX: --at the intersection of Kaʽawale and Komo? So, there’s a little access driveway onto the landowner’s property, and I believe that you could take access from that all the way to the leased 7 EXHIBIT C area, but you know from Verizon’s standpoint, if Komo Drive is public, then why should we not be able to, to use it for access? IKEDA: I understand what you’re saying, but I under—I really feel for Mr. McGuire. I, I think that he has every right to complain because he put in all the, his time, effort, and money, and it, it looks like he’s not getting anything back for all his hard work, so I have concern about that. Thank you. FOX: There might be another testifier listed. I’m not sure if he’s signed up, but he’s ohana to the property owner, and he can explain a little bit about the road and its history and how it’s maintained now, because it’s my understanding that some of the other residents also participate in the maintenance. I don’t know if you want to call him up now or— IKEDA: --We can go ahead— FOX: Okay-- IKEDA: Mr. Chairman, can you call him up? MIYASATO: Commissioners, any further questions? If not, okay. Could you please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Hawaiʽi County Planning Commission? KALILI: Yes. MIYASATO: State your name and residence. KALILI: My name is Wade Kalili. I’m at 71 Pua Avenue, Hilo. So, I’m actually the brother-in- law of the property owner. So as far as I know, that County road, you know he’s not able to be here, he works in Alaska—so he really wanted to be here but couldn’t, couldn’t make it—. But, as far as the property, I understand Mr. McGuire’s point, too, but he is, I’m not sure about the history as well, but he has maintained that as a County road. And then even thinking about Mr. McGuire’s point, I know making a separate road will probably make it worse as far as flooding. Kind of to me, doesn’t make sense, that would need a separate road, but I know the gate was placed. I had helped them one time for trash reasons. You know, the gate was open, and people would dump trash and cars and what not on the side of his property, so I know that’s where the gate comes in as far as the access to the property, so people, you know, I guess it’s a common thing at the end of a road. You know, I know, I live on Panaʽewa so at the end of Railroad, people dump trash and what not, so that’s the reason for the gate. But, as far as the property where the tower is, I’ve been up there numerous times, no trees. It’s a little area on the property, and I mean, I guess that’s about it. MIYASATO: Thank you. Commissioners, any questions? Okay, thank you. 8 EXHIBIT C KALILI: Thanks. MIYASATO: Okay, thank you—is there anyone else wishing to testify on this application? If not, can I have a motion to close public testimony? MOSES: I make a motion to close public testimony. DELA CRUZ: Second. MIYASATO: All in favor? COMMISSIONERS: Aye. MIYASATO: Any opposed? I call a close to public testimony on this application. Can we take a quick recess? Chairman Miyasato called a recess at 10:32 a.m., and the meeting was reconvened at 10:36 a.m. MIYASATO: I’d like to call the meeting back to order. ARAI: Thank you for giving us the opportunity to go into recess and to address some of the comments that were raised by Mr. McGuire as was by the, the applicants. First of all, I wanted to reassure the Commission that as part of the proceedings leading up to today’s hearing, we did verify service and notice of this upcoming hearing, and it was provided thth by the applicant. I believe the date was the 16, November 16, notice was served. And, we do have a postmark from the US Postal Service, so why Mr. McGuire didn’t receive timely notification, I don’t know, but the applicant did provide good faith effort to provide notice of today’s hearing. Addressing some of the concerns regarding drainage, flooding, there are processes in place administratively where those items will be looked at by the reviewing agencies. The one area that Mr. McGuire highlighted was potential impact to endangered species. That, there is a condition that we normally include in all conditions of approval, and it’s in this particular recommendation as well, and that’s Condition No. 6. It is a catch-all type of condition, but does speak to compliance with all applicable rules, regulations, and requirements of the affected agencies for the proposed development including the Federal Aviation Administration and Federal Communications Commission—all exterior lighting shall be shielded. That condition would capture and provide assurance to the department that as the applicant goes through its other obligations, regulatory obligations, not only with the FCC, but other agencies as well, that compliance would be expected, and they are obligated and held to it by this particular performance condition, so I wanted to provide that level of assurance that during plan review for 9 EXHIBIT C this tower, it’s one of those things that we will be looking for when the applicant does submit its plans to our office. So, I’m not sure if you have any further questions. I’ll try my best to address it, but I just wanted to offer that on the table right now. MIYASATO: Commissioner Ikeda. IKEDA: Yes, I’d like to ask you about, when did the County take back the road? According to Mr. McGuire, it was a paper road and he had to do the repairs himself. ARAI: My understanding is that the road was laid out and established by the Territory of Hawaiʽi, so I don’t believe that there was any particular instance where the County took the road away from Mr. McGuire. As far as the improvements itself, I don’t see any documentation or evidence that suggests that, you know, he provided all of the improvements, although he did make statements to that effect, but it’s just a statement, and you place weight on it where you deem necessary. MIYASATO: Commissioners, any further questions for staff? Thank you. Commissioners, any discussion? If not, I’ll accept a motion. HENKEL: Mr. Chairman? I move that the application for a Use Permit, Docket No. USE 15- 055 be approved based on the Planning Director’s findings, recommendations, and proposed conditions which shall be adopted. DELA CRUZ: Second. MIYASATO: I have a motion by Commissioner Henkel, second by Commissioner Dela Cruz. Any discussion on the motion? HENKEL: Mr. Chairman? MIYASATO: Yeah, go ahead. HENKEL: You know, I don’t dispute the fact that Mr. McGuire made the improvements on Komo Street, but I’m still not convinced that it’s not a County right-of-way. It was represented as being one of the County’s roads-in-limbo at the last meeting, and, you know, just improving it and putting up a gate, to me, doesn’t make it his. It’s still a County right-of-way as far as I’m concerned. I’ve got a friend that mows the right-of-way in front of his house for ten years down by Kalapana on Highway 130. It’s improved his property value as he’s landscaped it. It looks real nice, but he wouldn’t expect to be reimbursed or receive ownership, you know, just from taking care of it. And, you know, I think that’s a similar case here. So, that’s the reason. And, Mr. McGuire also seems to have a longstanding dispute with the previous owners, but I don’t see Verizon as, you know, being any part of that. They’re only taking up 1,600 square feet. That’s gonna be a minimal impact to the area. That’s all. 10 EXHIBIT C MIYASATO: Any further discussion? You can call the roll. MEAD: Commissioner Henkel? HENKEL: Aye. MEAD: Commissioner Dela Cruz? DELA CRUZ: Aye. MEAD: Commissioner Ikeda? IKEDA: Aye. MEAD: Commissioner Moses? MOSES: Aye. MEAD: And Chair Miyasato. MIYASATO: Aye. MEAD: Motion passes five, zero. MIYASATO: You’ll be notified in writing. The discussion ended at 10:43 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 11 EXHIBIT C