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HomeMy WebLinkAbout2016-02-04 Hearing Transcript - Arrow SPP 09-076 & Rodrigues SPP 15-178 WINDWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT FEBRUARY 4, 2016 A regularly advertised hearing on the continued consolidated hearing for the applications of ARROW OF OREGON/HAWAIʽI, LLC (Amend SPP 09-076) and DAVID & LAURA RODRIGUES (SPP 15-178) was called to order at 10:03 a.m. in the County of Hawai‘i Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i with Chairman Charles Heaukulani presiding. COMMISSIONERS PRESENT: Charles Heaukulani, Gregory Henkel, Donald Ikeda, Myles Miyasato, and Raylene Moses. ABSENT & EXCUSED: Donn Dela Cruz. ALSO PRESENT: Danny Patel (Deputy Corporation Counsel for the Windward Planning Commission), Daryn Arai (Planning Program Manager), Jeff Darrow (Staff Planner), and Sarah Hata-Finley (Commission Secretary). PARTIES PRESENT: Roy Vitousek, III (Attorney for Applicant Arrow of Oregon/Hawaiʽi), David and Laura Rodrigues (Applicants for SPP 15-178), Thomas L. H. Yeh (Attorney for Intervenor HOVE RMC), Laura Foster (Representing Intervenor HOVE RMC), Amy Self (Deputy Corporation Counsel for the Planning Director), and Duane Kanuha (Planning Director). And approximately 8 people from the public in attendance. APPLICANT: ARROW OF OREGON/HAWAII, LLC (Amend SPP 09-076) Continued hearing on the application for an amendment to Special Permit No. 09-076, 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. APPLICANTS: DAVID AND LAURA RODRIGUES (SPP 15-178) Continued hearing regarding the application for a Special Permit to allow a cinder and rock quarry operation on 5.003 acres of land situated within the State Land Use Agricultural District. The properties are located on the northeast and southeast corners of Kailua Boulevard and Lurline Lane, Hawaiian Ocean View Estates Subdivision, Kahuku, Ka‘ū, Hawai‘i, TMKs: 9- 2-142:020, 021, 022 & 9-2-145:047, 048. HEAUKULANI: Okay, I’m going to call the meeting of the Windward Planning Commission back to order, please. The next two issues are Agenda Items 5 and 6. I’m going to call them at 1 EXHIBIT D the same time. They’ve been consolidated. So, that’s Applicant Arrow of Oregon/Hawaiʽi, LLC SPP 09-076 amend, Applicants David and Laura Rodrigues SPP 15-178—and without looking, Sarah’s staring at me to use the microphone—and ask Jeff, if you would, just bring us up to speed where we’re at in these two consolidated matters, please? th DARROW: Will do. Thank you, Mr. Chairman. Our last hearing was on January 7, 2016, which was continued to allow for a site inspection of the subject properties and general area. th The site inspection was conducted on January 29, 2016. All Commissioners attended except for Commissioner Dela Cruz. The Commission met at the HOVE Road Maintenance Corporation Office on Lehua Lane to discuss the details of the site inspection and to allow for public testimony. There were 11 people from the public who testified. Two additional stops were—oh, I’m sorry—three additional stops were added for the site inspection, and they will be identified on the map that we will show after this—oh, here we go. So, the—did we add the third? I guess we didn’t add the third dot, but we started at the corner of Lurline and Kailua Boulevard. The Commission was asked if they could add this location that was just to the property pin boundaries for the Rodrigues’ property located on Kailua Boulevard. Additionally, after these inspections, the Commission moved up to what we consider Site 1.2 which was the driveway entrance to a property owned by Arrow of Oregon, and then we proceeded, this is on Lurline Lane, Lurline Lane, and then we proceeded to the corner of Lurline and Mahimahi Drive. Additionally from there, the Commission walked to approximately the middle of Mahimahi Drive and observed both the properties on the makai side as well as the subject properties owned by Arrow that are subject to the amendment application. After these inspections, the Commission drove up Lurline Lane to ʽŌhiʽa Drive. We conducted a site inspection at the corner of ʽŌhiʽa, ʽŌhiʽa Drive and Liliana Lane and observed the roadway conditions in this area. And, lastly, the Commission had conducted a site inspection on Liliana Lane fronting the current permitted subject application property owned by Arrow of Oregon/Hawaiʽi, LLC. That brings the Commission up to speed. Since our last hearing, just for your information, the— oh, sorry, that was the one I forgot—then to end the site inspection, we also had gone to the entrance to David and Laura Rodrigues’ subject property on the mauka side, or makai side of Kailua Drive located on Lurline Lane, and that was our last stop. Thank you, Daryn. Since our last hearing, the Planning Commission has received a number of letters in opposition and support as well as a Petition in support with a number of names identified in the Petition. With that, that concludes our brief presentation. Thank you. HEAUKULANI: Thank you, Jeff. Commissioners, questions for Jeff? All right, let me take care of something here, make sure that I didn’t mess up the record here. I want to make sure that 2 EXHIBIT D thth the record reflects that the minutes of both the January 7 and January 29 meetings were approved. I’m not sure that I did both of those earlier today? PATEL: No, I think we still need a motion for that. HEAUKULANI: All right, so what I would ask is for a motion for approval of both the minutes thth of the January 7 and 29 meetings, please. thth MOSES: I make a motion to approve the minutes for January 7 as well as January 29 meetings. HEAUKULANI: Thank you. MIYASATO: Second. HEAUKULANI: Motion by Commissioner Moses; second by Commissioner Miyasato. Commissioners, any discussion? Then, we’ll take a vote here—all those in favor, please signify by saying aye. COMMISSIONERS: Aye. HEAUKULANI: Any opposition? All right, that motion carries. Thank you. We have a single person signed up. We had, I think, 11 people testify when we were out in Ocean View. I’ll ask Mr. Ralph Roland to come forward. Is there anyone else in the audience that wants to testify or be heard on this matter on the agenda? Good morning, Mr. Roland. ROLAND: Yes. HEAUKULANI: Could you please raise your right hand for me, please? Sir, do you swear or affirm to tell the truth on this matter now before the Planning Commission? ROLAND: I do. HEAUKULANI: Thank you, sir. Do me a favor, and I forget almost all the time, but if you could use the microphone when you testify. ROLAND: All right. HEAUKULANI: Limit your testimony to three minutes. Let us know what’s on your mind, sir. ROLAND: Unfortunately, the vog has affected my voice. I used to have a very resonant deep throat voice. I don’t do very well at these testifies \[sic\]. Anyway, I’m here again to find out what’s going on. I have a friend, a long-time friend, that has two pieces of property on Lualani \[sic\], ʽIolani, sort of across and adjacent from Arrow, and he 3 EXHIBIT D has another lot in Ocean View and another one in Ranchos, and he’s paying about $500 a year for roads maintenance. And, these properties, he’s concerned about because he’s now retired from the Park Service, and his military retirement, he’s doing well as a retired person. He has a coffee farm, 5-acre coffee farm. And, he’s planning what he needs to do for his grandchildren. And, so, he rarely goes up to the site, and maybe he’s been there 3 or 4 times. He doesn’t like the condition of the roads. He doesn’t like that he’s paying for roads that are not paved and haven’t been paved and aren’t maintained. He would rather the roads be either maintained even though he understands that the trucks will probably destroy them because the chipseal doesn’t wear very good with the heavy truck use, but he really is concerned as a paying, productive human being to the County a lot of money in taxes and for roads and basically getting nothing for it. You know, he doesn’t get, nobody acknowledges what he gave to the country as a veteran, you know, so this, this man has a little bit of anger that rational things are not being done, and he doesn’t see rational things being done at the cinder pits. And, he wants to know that there are, and that the roads either he wants the people of the cinder pit to pay for the roads or he doesn’t want to have to pay for roads that aren’t being fixed, or he wants anything else that he can get that seems reasonable as a person that was born and raised on this Island. So, in any event, so he sends me here to find out what’s happening, and I haven’t done a very good job because I tried, and I can’t tell him really what’s going on, and I have good informants in the community, and people in the community who don’t know what’s going on. So, I think it behooves you guys to stretch your limits a little bit. I don’t know if you had consultants who are really knowledgeable soil engineers and geological engineers and people who know about gravel mines and the hazards. If you really looked into the depths of these pits to see what’s really they’re about and what they will mean down the road to us and the community, I’m not sure what you people have done or what the Planning Department has done, but I don’t see any real evidence of significant comprehension of what the best answer would be, but that may be the lack of my own insights. I hope it’s not a lack of yours. Thank you. HEAUKULANI: Thank you, Mr. Roland. And, sir, we’re going to have oral arguments here in just a little while. We invite you to stick around and listen to counsel and parties make their arguments and that might help educate you a little bit about what’s going on down there. Commissioners, any questions for Mr. Roland? Hearing none, thank you, sir. Is there anyone else in the audience that would like to testify on this agenda item or these agenda items? ROLAND: I would like to say one more thing. HEAUKULANI: Go ahead, sir. ROLAND: Another matter is I have a friend who’s in her eighties and quite active living on Aloha Boulevard, and she is really upset about the trucks that come by in the wee hours of the morning before six. And, I don’t know if you considered these routes that are on here and how the distribution of traffic should be made so it’s fair and not imposed on some people way more than others, but the traffic will increase, and it bothers her now, and she— 4 EXHIBIT D HEAUKULANI: Yeah, that actually sounds like something you need to take up with the association board, but we’ve heard you, sir. Thank you. Any questions for Mr. Roland on his additional comments? Thank you, sir. Again, anyone else in the audience that wants to testify on this agenda item. Hearing none, Commissioners, I need a motion to close public testimony, please. MOSES: I make a motion to close public testimony. MIYASATO: Second. HEAUKULANI: Motion by Commissioner Moses; second by Commissioner Miyasato. Any discussion? None. All those in favor signify by saying aye? COMMISSIONERS: Aye. HEAUKULANI: Any opposition? Thank you. Motion to close public testimony carries. I’d like parties and counsel to please come up to the table. Good morning. Counsel, please make your appearances for the record. VITOUSEK: Good morning, Mr. Chairman. Randy Vitousek on behalf of the Applicant, Arrow of Oregon. HEAUKULANI: Good morning, Mr. Vitousek. YEH: Good morning, Mr. Chair. Thomas Yeh on behalf of Intervenor HOVE RMC. HEAUKULANI: Good morning, Mr. Yeh. SELF: Good morning, Mr. Chair. Deputy Corporation Counsel Amy Self representing the Planning Director. HEAUKULANI: Good morning, Ms. Self. RODRIGUES, D.: Good morning. David Rodrigues. HEAUKULANI: Good morning, Mr. and Mrs. Rodrigues. Could I have the parties please stand and be sworn, please? Raise your right hand. Do you swear or affirm to tell the truth on this matter now before the Planning Commission? PARTIES: I do/yes. HEAUKULANI: Thank you. You can be seated. Just a couple of housekeeping matters on our side of the table. Commissioners, we want to confirm that everyone’s reviewed the entire record up until this point. Is there anyone who has not reviewed the entire record in this matter, in these matters up until this point? Thank you. Commissioners, is there any questions for the parties 5 EXHIBIT D that are specific to the site inspection that we did I believe on Friday? Any questions? If not, we’ll move on to oral arguments, and Commissioners, you can ask questions after that. th Parties, at our January 7 meeting, it was determined that each party would have 20 minutes to present oral arguments. Unless the parties agree otherwise, the order for oral arguments will be the Applicants first, that’s Arrow first, then the Rodrigues, and then Intervenor, then the Director. Is that acceptable to the parties and counsel? VITOUSEK: Yes. YEH: Yes, it is. RODRIGUES, D.: Yes. SELF: Yes. HEAUKULANI: Thank you very much. Again, we’re going to try to stay within that 20-minute boundary if we can. I know that’s difficult, and I would ask Applicant, Mr. Vitousek, your oral arguments, please. VITOUSEK: Thank you. Good morning, Mr. Chair and Members of the Commission. I’m Randy Vitousek, and as you know, I represent Arrow of Oregon with respect to this application th to amend Special Permit 09-76. That permit was initially granted in June 20, 2009, and related to five separate, one-acre parcels at the time; those parcels were subsequently consolidated, and the quarrying activities taking place on those parcels. This application is to amend the Special Permit to add an additional eight acres of land to the quarrying operation to bring the total to 13 acres. The quarrying site, this site, has already been quarried. In other words, the additional eight acres or portions of the additional eight acres have already been quarried by somebody else, and the site is surrounded by other areas that have been quarried by other parties. In other words, adjacent to the Arrow property that is being, that is the subject of this application, is a quarry that’s currently being conducted by Jernigan. Adjacent to that is a quarry that was previously conducted by Intervenor, the HOVE Road Maintenance Corporation. And so, the—let’s see, I need my glasses—the, as you’re aware, the Ocean View Estates is, consists of approximately 10,000 one-acre lots that was subdivided in the 1960’s. The subdivision runs from the highway at about 1,500 feet up to about 5,000-foot elevation. The subdivision was created in the 1960’s and does not meet current requirements for roadways and other subdivision improvements. The property is zoned Agriculture by the Land Use Commission and is, I’m sorry, is classified Agriculture by the State Land Use Commission and is zoned Ag-1. The site itself consists of the 1907 lava flow overlying cinder deposits and so the quarrying operation consists of, of removing the lava on top, crushing it, using that for gravel, and then mining the cinder underneath. 6 EXHIBIT D There are no agricultural uses on the property. The property is not suited for Agricultural use because it is poor soil as you’ve noted in the Findings of Fact and Conclusions of Law. It’s cinder and Aʽa lava because there’s very low rainfall in the area and because there’s no water supply available. In other words, there’s no other source of agricultural or County water in the area. So, the area is part of the draft Kaʽū Community Plan, and the community plan recognizes that quarrying activities are conducted there and should continue to be conducted there under this Special Permit process. The State Historic Preservation Division has issued a “no effect” letter saying that there are no historical sites impacted by the application. There have been no evidence of any sort of cultural activity on the property. The application and the quarries do not interfere with access to the shorelines or access to the mountains. There are no endangered species involved, and there’s no other environmental impacts from the quarry. So, the position of the Applicant is that the proposed quarrying operation meets the requirements for Special Permit under Hawaiʽi Revised Statutes, Chapter 205 and under the Planning Commission Rule 6. The rules recognize that with respect to certain activities like quarrying, they have to be conducted where the resources are. In other words, you have to go to where the resources are in order to harvest them or mine them, and that those resources may not be located in an area that’s zoned for Industrial use. So, this is typical of the type of special and unusual use that meets the criteria for issuance of a Special Permit. The Special Permit process has been utilized around the Island and over the decades to allow quarrying operations, usually in agriculturally zoned properties and because that is where the resources are located. So, basically, it seems that the Planning Commission, you know, proposed Findings and Conclusions recognize that the Special Permit process is appropriate and that the application meets the criteria for Special Permit. Interestingly, the Intervenors haven’t really objected to that or contested that because, you know, they themselves quarry cinder right across the street from the Arrow quarry. And, so the reason that we had to go through the contested case hearing process and the reason that we’re in this process right now is essentially because the Road Maintenance Corporation wanted the Planning Commission to impose conditions that would allow or would basically enhance the Road Maintenance Corporation’s ability to do what it’s already obligated to do under its corporate documents. In other words, the obligation of the Road Maintenance Corporation is to assess owners, you know, annual amounts and to use those funds to maintain the roadway. And, they have the right to foreclose properties if they need to, if there are unpaid assessments, and so, they already have the mechanism to do their road maintenance. They have the mechanism to enforce that, and it’s Arrow’s position that there’s no reason to involve the County or the Planning Commission or the Planning Department in that process. In other words, 7 EXHIBIT D there exists a legal process; they’re welcome to follow it; and that’s their remedy. And, it just doesn’t make sense to essentially put the Planning Commission or the Planning Department in between the Road Maintenance Corporation and property owners in the subdivision, and to make a condition of the permit that would add to the obligations that the owners already have to the Road Maintenance Corporation. So, it’s just the idea that those should be kept separately and the Road Maintenance Corporation has the rights that it has under the law and under its documents, and there’s no reason to put another layer of County enforcement on top of that. The process has been very thorough, you know, we’ve gone through a contested case hearing. The Commissioners themselves—four of them—sat as the Hearing Officers. That evidence was presented on the record. There was an additional motion for a site visit which was conducted. The site visit gave some of the residents of Ocean View an opportunity to testify. They routinely or uniformly testified that they benefit from having the quarries there, that it gives them a source of material that they actually use day to day in maintaining their driveways and their homes, creating gardens in their homes, that it’s an economic benefit to them not to have to bring cinders and soil from other places on the Island. One thing that one of the people mentioned that I, frankly, haven’t even thought of before is that when you bring soil from Waimea or from other parts of the Island, you bring with it weeds and nematodes that are not otherwise native to Ocean View. If you take your cinder and soil from Ocean View, then you’re not bringing any additional pests into the environment, and I thought that was an interesting point. I hadn’t thought of it before, frankly, but it’s, it seems clear once you, once they say it. So, you know, we’d like to really thank the Commissioners for their time and energy in this. It was an extended process, a thoughtful process. There was a lot of testimony. The one issue that still exists is Arrow, and I believe the Rodrigues, you know, would prefer to see Condition 4 provide that there be 8-foot setbacks rather than 15-foot setbacks from the property lines for the quarrying activity. Arrow will accept, you know, happily accept the Special Permit with the condition as currently drafted, but we did want to point that out and say that the 8-foot setback would be more uniform, more consistent with grading requirements in other areas, and would adequately protect it. There’s testimony from Mr. Dahlberg who is a professional engineer on that. So, we would request that Condition 4 be modified, but as I said, you know, in our proposed conditions that were attached to our proposed Findings of Fact and Conclusions of Law, it was worded as the condition is currently worded in the proposed Decision, and we will accept that, but we did want to raise that issue. And, again, you know, just thank you very much. It’s been a long process, and I’d like to thank the Planning Department and the Commission staff because it was really conducted very well. The site visit was conducted very professionally, and I just really appreciate the time and energy that everybody’s put into this. Thank you. 8 EXHIBIT D HEAUKULANI: Thank you, Mr. Vitousek. Commissioners, do we have any questions for Mr. Vitousek? Nothing? Thank you, sir. Mr. Rodrigues, Mrs. Rodrigues, you guys are on. You’ve got 20 minutes. RODRIGUES, D.: Good morning. I’m David Rodrigues. This is my wife, Laura. I would like to thank the members of the Planning Commission and Planning Department for coming to Ocean View and meeting some of the people who live and work in the community and also visiting our quarry. I’ve made that drive daily for many years so I’m kind of used to it, but I know it’s a long drive from Hilo or Kona. I hope you enjoyed the trip and found it useful. At the orientation in Ocean View, the Planning Commission listened to public testimony from members of the community supporting the quarries. We thank you for taking the time to do that. We hope this testimony, combined with signatures and letters supporting the quarries, shows the Planning Commission the need for these quarries. The cinder and rock from the quarries are used for driveways, house pads, the installation of septic systems, water tanks, planting, and landscaping—all helping the people of Ocean View to develop their properties. By having the materials available locally, the people of Ocean View can not only purchase materials at a much more affordable cost, but the chance of nasty weeds and other invasive species being introduced to Ocean View are a lot less then when material is brought in from other areas of the Island. As far as I know, these are the only cinder and rock quarries in the entire District of Kaʽū. Cinder used to be available from Kahuku Ranch but that stopped many years ago, and now that Hawaiʽi Volcanoes National Park has taken over the ranch, the chances of that happening again doesn’t look very good. There was a rock quarry in Nāʽālehu for a while, but that was closed also. So, without these quarries, all cinder and rock would need to be hauled from Kona, Waimea, Hilo, or Puna which will not only increase the costs of the materials, but the chances of invasive species being introduced also will be increased. My father always believed that the cinder in Ocean View should be for that community and because of this, most of our deliveries are in Ocean View to lot owners who pay road maintenance fees to not only access their property but to also have materials delivered to their property such as concrete, lumber, water, and cinder or gravel, materials that are crucial to developing their property to make it livable and comfortable while also increasing the value of their property. Since receiving our letters of violation in October of 2014, we have been trying our best to follow the orders in the letters to become compliant. We immediately stopped all excavating, cleaned up, and with the help of Mr. Dahlberg, applied for a Special Permit. Mr. Dahlberg submitted a plan for our quarries that will ensure the safety and integrity of the slopes, recommending 15-foot cuts with 8-foot benches instead of 20-foot cuts with 8-foot benches. His recommendation for 8-foot setbacks meet County Codes and are similar to the grading permits that were approved in 1992 and 1994 for three of the five acres that we are applying for a Special Permit. He has agreed to be our engineer of record, and will conduct site inspections and evaluations as required. 9 EXHIBIT D In February of 2014, we had a meeting with the HOVE Road Maintenance Corporation to try and come to an agreement with them—a meeting that they knew I was recording because Mr. Dahlberg was not able to attend due to a previous commitment. Present at the meeting were members of the HOVE Road Maintenance Board, representatives from Arrow, Soil Plus, David Dalley and my son and I, and at the end of the meeting, both Mike Finn, the president of the Board at the time, and Laura Foster, the general manager, can clearly be heard saying that if we agreed to the conditions discussed, that the HOVE Road Maintenance would put everything in writing so we could all sign it, and they would not contest our application. They promptly changed their mind and contested our application. Since then, we have received document after document containing many accusations and suggestions of very intrusive and unfair conditions from the law office of Yeh & Moore, but in those many pages submitted by Mr. Yeh, there is not a single page with a date or description of any work done on the roads that the Commission visited last Friday or any document showing that the HOVE Road Maintenance has ever made an attempt to collect any extra assessments or heavy truck fees from anyone but Arrow and us. This is a corporation that is entrusted with well over a million dollars of the community’s hard earned money every year. These records should be easily accessible but have not been provided. We have never had any issues with the HOVE Road Maintenance until the last two boards and current management. If fact, we have done work for the HOVE Road Maintenance on more than one occasion when the HOVE Road Maintenance was still building up their inventory of equipment, and we had the equipment that they needed to get certain projects done on time. In fact, my father had his soils report—when my father had his soils report done in 1992, when he was trying to get his first permit, he had the HOVE Road Maintenance and other quarries in the area done at the same time to help the HOVE Road Maintenance and other quarry owners to apply for a permit. But, no one else did at the time. All the tmk numbers are in the original soils report. thst Our contested case hearing was held on September 30 and October 1, and we presented truthful and honest evidence without exaggerating or misrepresenting facts or conditions in an around the quarries and why we should be allowed to continue operating without intrusive and unfair conditions placed in our permit by HOVE Road Maintenance Corporation. When that hearing was done, we received a second recommendation for approval from the Planning Director, and after the submission of Findings of Fact and Conclusions of Law by all parties, we received the recommendation for approval from the Hearing’s Officer. th At our hearing on January 7, the Commission heard Debbie Sheldon and Jon Dancel testify about the dust and other issues. These are real concerns, and we have always tried our best to be considerate of the dust, even shutting down for days at a time when the wind was blowing hard. What Debbie did not say was that her grandfather, Robert Selfridge, and his business partner, Jerry Miller, were cinder quarry owner-operators themselves, and that my father bought the business from them. Debbie also showed the members of the Commission some pictures of what the area looked like a long time ago. We were not allowed to see these pictures, but I do remember what the area looked like when we started working there in 1987, before Kona and— 10 EXHIBIT D excuse me, before Kona Cinder & Soil bought the 15 acres next to us, and with the help of Michael Moore from the Law Office of Yeh & Moore, got their quarry granted non-conforming or grandfathered, in 1995. Since then, what was once a hill is now a big hole that borders our properties above Kailua Boulevard. All of that material was hauled right by our properties along with most of the rock that was crushed in that same quarry for the much needed Ocean View water project that was completed in 2012 by Bolton Construction. Ever since Yeh & Moore’s involvement in our case, we have felt that they have been trying to get the Planning Commission to require us to pay for damages that their former clients have caused and are still causing since trucks are still hauling out of that quarry without any special assessments— YEH: —Mr. Chair, and I don’t like doing this, but I would just mention that much of this argument is not based on information that came into the record. So, I’ll just note that. HEAUKULANI: Thank you. This is argument. We’ll give it the weight it deserves. Go ahead, sir. RODRIGUES, D.: I’m almost done. So the trucks are still hauling out of that quarry without any special assessments such as they are trying to have placed on our permit. The Commission also saw the hole that has been dug next to our properties below Kailua Boulevard. That was our last stop. That material was also hauled right by our properties to get to the nearest truck route which is Kailua Boulevard with none of the special assessments that are being suggested for our permits. On April 12, 2001, James W. Mitchel died in the Kona Soil & Cinder quarry when the bulldozer that he was operating was buried when the high wall that he was next to collapsed causing approximately 500 cubic yards of cinder to come down and cover the machine and operator causing him to suffocate. This information is from the report that MSHA investigator submitted. Although this accident was not caused by Yeh & Moore, but the owner’s negligence, we all need to learn from this tragic and needless accident so nothing like this happens again not only in Ocean View but in any quarry. HOVE Road Maintenance refuses to follow Robert Thomas’s recommendation to cut down Mahimahi due to the simple fact that they don’t understand what the recommendation really says, but insists that a setback be restored. By doing this, they will be causing someone to work at the base of the cut along Mahimahi placing someone in the exact st conditions that have already claimed one life. Laura Foster testified on October 1 that she won’t allow saleable cinder to be pushed into a hole. Does that mean that the cinder we walked on when we were there on Mahimahi last Friday is more valuable than someone’s life? Please don’t allow this to happen by allowing this condition in anyone’s permit. We ask that the Planning Commission approve our permit without any of HOVE Road Maintenance’s suggested conditions. Thank you very much. HEAUKULANI: Thank you, sir. Ma’am, did you have anything to add? 11 EXHIBIT D RODRIGUES, L.: No. HEAUKULANI: Thank you both. Good morning, Mr. Yeh. We’ve just been provided with a couple of documents that I understand you are proposing to provide to the Commissioners for this— YEH: —And, actually, and my apologies, because I think we had extras that we should be providing to the parties and their counsel. One was sections of the County Code which have been referenced by both of the Applicants in their Exceptions. Another one is just a copy of an existing exhibit that’s already in the record that I wanted to reference to during my argument. HEAUKULANI: Mr. Vitousek, do you have copies of these documents? VITOUSEK: No, no we don’t. YEH: Thank you. I did bring extra copies so there should be sufficient numbers. HEAUKULANI: Just give us a minute, and let us circulate copies of these documents to the parties and counsel. Okay, we circulated documents received from Mr. Yeh, and I believe one of those documents is already in the record. I’m sorry, I don’t have a copy with me. Was that Exhibit 9? YEH: That was Planning Department Exhibit 9. HEAUKULANI: And then you’ve also circulated copies of County Code—Mr. Vitousek, do you have a position on— VITOUSEK: —I have no objection. I mean, the County Code, and the Commission’s perfectly able to take judicial notice of the County Code and if he wants to refer to a document that’s already in evidence as part of argument, I think that’s appropriate. HEAUKULANI: Thank you, sir. Mr. Rodrigues? RODRIGUES, D.: No objection. HEAUKULANI: No objection. Thank you, sir. Ms. Self? SELF: No objection. HEAUKULANI: All right, thank you. That makes it easy. Then I’ll ask staff to circulate what was marked for identification purposes Exhibit 9, Planning Director’s Exhibit 9 and also provisions of the Hawaiʽi County Code. Thank you. All right, Mr. Yeh? 12 EXHIBIT D YEH: Thank you, Mr. Chair. Mr. Chair and members of the Commission, thank you very much for the attention that you brought to this proceeding along with the site visit that we had. We realize that there’s a lot to chew on. We’re going to try to kind of put the issues and conditions that we would propose into some perspective. This is not about whether or not these quarries serve a benefit to the community from the standpoint of providing cinder to locations therein. This is really about the conditions and the kind of standards that the Commission needs to follow when it does make a determination that a proposed use is unusual or reasonable, and in making that determination, whether a proposed use is reasonable is measured by the criteria under the Planning Commission’s rules, including Rule 6. And, one of the primary ones deals with the issue of whether or not a proposed use has adverse effects upon surrounding properties and to the extent that it does, whether or not conditions that are imposed to minimize those adverse effects thereby makes that use reasonable. Now, there’s been much discussion about whether or not this case is about whether or not you should be imposing a condition requiring the Applicants to pay special assessments. That was one of the conditions that the Planning Department had proposed at the beginning of this session or the beginning of the hearings. We’re advocating that if the Commission is not inclined to require the payment of special assessments, that rather, as in other Special Permit conditions, when you’re dealing with roadway conditions and adverse effects, that you do impose conditions that relate to taking care of driveways and intersections and roadway sections that this site inspection clearly showed are being caused damage by these operations that you’re proposed to approve. The criteria of the Planning Commission’s Rule 6 doesn’t make the distinction between whether or not roads are owned by a private entity or maintained by a private entity. It does not make a distinction as to whether or not a private entity has the power to issue special assessments, but it does say there shall be no adverse effects. So, when we took a look at the site inspection, and maybe for the purposes of kind of refreshing your memory on that, you saw that from the standpoint that the Association’s or the Road Maintenance Corporation’s obligations and burdens, it takes care of 157 miles of roadway in the subdivision. Those roadways are in pretty darn good condition considering the task that it has both from a condition as well as a signage standpoint. When we got to the quarry sites, the conditions were much different. Yes, there are some conditions that are a combination of other quarrying operators, but when we got to the actual entrances to the quarries that are operated by the Applicants, both with respect to the driveway entrances of Arrow as well as Rodrigues, we could see very clear visible damage of entrances to these operations along with certain destabilization and problems with intersection. And, I’ll go through a little bit more specifically what we observed. Site 1 showed cracking and erosion along the road edge along Kailua Boulevard. The intersection of Lurline and Kailua showed inordinate wear and tear. The reason we stopped at the entrance of Arrow’s unpermitted operations were it’s already had been acknowledged it was 13 EXHIBIT D doing quarrying operations after the original Special Permit was issued, showed very clear damage to that driveway entrance. And, the reason we wanted to show you that is not only to say it should be bearing the burden of that repair but to also illustrate the kind of problems that exist when these kind of unfettered operations go on with heavy truck usage. Mahimahi is another illustration of what happens when you do not have proper engineering of cut slopes, the benching that’s being proposed, as well as appropriate setbacks, and then the absence of those kind of setbacks, why you need to have guardrails to avoid issues of safety. Both the intersection of ʽŌhiʽa and Liliana, and Liliana itself, showed clear damage coming from Arrow’s operations. The chipseal is gone on Liliana. You could see for yourself the tract emanating from the driveway entrance to the intersection, the turning radiuses that occur from heavy truck use and the damage to ʽŌhiʽa and Liliana. Those are the kind of issues that HOVE is saying it should not be responsible for bearing the burden of paying for that maintenance. When you go ahead and add to that the condition that these lots be consolidated, not only are you imposing that burden in absence of appropriate conditions but you’re creating a double whammy on the Road Maintenance Corporation to take less money on a general assessment perspective to repair these roads. Should the members of the Road Maintenance Corporation shoulder than burden or should from a direct relationship an issue of damage to the roads, shouldn’t that be the Applicants if the determination is going to be that these uses are reasonable? We respect the Hearings Officers’ recommendations. They did go pretty far, but from our position, they didn’t go far enough. The areas that, if you take a look at those conditions, and some of the ones that we requested, these are the principal ones that we feel should be imposed if this Special Permits be issued for both Applicants. One, restoration of cut slopes within the setbacks per Robert Thomas’s recommendations. Now, both Arrow and Rodrigues have said, well, the grading ordinance doesn’t say we need to do that. The reason I provided to you portions of Chapter 10 is because if you take a look at Section 10-3, Subsection (b), it says this chapter shall not apply to the following, mining or quarrying operations regulated by other County ordinance or government agencies, which is you. The reason I provided Planning Department Exhibit 9 is because it says the same thing, and what they say there is that exactly those kind of recommendations from Mr. Thomas if you flip to the back side of the page is this is not unweathered rock that the grading ordinance typically talks to. This is cinder. This is erosion that the kind of cut slopes and damage that you saw on the site inspection can create. So, whether it’s an 8-foot or a 15-foot setback, when you’re dealing with cut slopes, the same benching standards must apply. Not only that, but in the proposed condition by the Hearings Officers, there’s a determination that there should be a presentation of the stabilization plan. Now, the engineer for the Applicants has said they’ve done one, but that doesn’t solve the problem. The real problem is fine, we can 14 EXHIBIT D come up with a plan, but when should that plan be implemented? When should those slopes be restored? That’s something that we propose in our conditions. Same thing with moisture compaction testing which is not a part of the current proposed conditions. Guardrails. We heard testimony from an engineer saying well, a hog wire fence may be a barrier, but that’s not something that we want to have liability for. So, who should that liability be imposed on? We heard in Exceptions from the Rodrigues that geez, if we put guardrails in, it’s going to destabilize the slope there. Doesn’t that tell you that we have an unstable cinder situation? If you do not have guardrails where you have insufficient setbacks, now you have a real safety hazard that’s been acknowledged on the record. Improved driveway entrances to commercial driveway standards as has been recommended by the engineer. These roads are not built to withstand heavy vehicle traffic. This has been agreed to on the record and yet we’re placing these quarrying operations with the heavy truck traffic that occurs there at these sites. Erosion control along road edges and swales. The objection from Rodrigues is well, there’s water going over the slopes that they’ve created. If you take a look at, even assuming that Chapter 10 applies, Section 10-25(a), adequate provisions shall be made to prevent surface waters from damaging the cut face of an excavation. So, if we’re dealing with erosion control, that should be properly designed and engineered to avoid damage to both the road and to avoid erosion to these cut slopes. Limit access to certain locations. Arrow has agreed just to take access on Liliana. That’s not part of the condition that’s been proposed. We can see what happens when you allow accesses in different locations. Next condition, improve intersection locations where this wear and tear is known to exist. Next condition, repair road sections abutting quarrying operations where the roads have been destabilized by heavy traffic or cut slopes. Arrow agreed that this was a reasonable condition. Survey and staking is another condition. How do you determine setback locations in the absence of survey and staking? Oversight and periodic review. Why is that so important? Because we have in this situation, two applicants. One is Arrow that violated the Special Permit it was already issued. It undertook to engage in operations of other properties knowing that it needed a Special Permit in the first place. Rodrigues had grading permits from some parcels but not on others. So, when we ask for oversight, we’re saying at least at a minimum within a certain period of time, require reporting. Require these annual progress reports and even at a 5-year period, have a hearing and see where these Applicants are. We have such a safety risk for roads that it is something that is mandated. 15 EXHIBIT D And, at the end, site restoration. We can have site restoration plans that are submitted at the beginning, but the end of the game, at the end of the day, how are these sites going to be left, and how are you going to determine that they’re not left in a condition that is going to create a real issue? So, those are the, essentially, the specific additional conditions that we are advocating should also be added in the final decision and order. If you take a look at our proposed findings and conclusions, you’ll see those conditions that we’ve advocated that should be added. It’s not a difficult proposition to take a look at them and adopt them also. That’s all I have, and thank you very much again. HEAUKULANI: Thank you, Mr. Yeh. Ms. Self? SELF: The Planning Director agrees with the Hearings Officers’ Report and recommendation which included the Findings of Fact, Conclusions of Law, and Decision and Order and the conditions that were listed in Exhibits 1 and 2, and recommends the adoption by the Windward Planning Commission of the Hearings Officers’ Report and recommendation. With respect to Condition 4, the Planning Director stands by his original recommendation that the setbacks be placed at 15 feet from all property lines to the top of slopes. This was, if you recall, this was recommended by the soil engineer in the Geotechnical Investigation Report by st CEL dated May 21, 2009. So, we stand by that recommendation, and we have no other argument to offer at this time. Thank you. HEAUKULANI: Thank you, Ms. Self. Commissioners, do you have any questions for any of the parties or counsel? Commissioner Miyasato. MIYASATO: Director Kanuha, you know, is a permitted use within the quarries customers to come and receive materials on site of the quarries? Is there any special conditions that need to be followed by the quarry operators as far as a designated area or anything of that matter? KANUHA: Thank you, Commissioner Miyasato. Just for clarification, what you’re asking is whether or not if there’s any consideration for designation of areas how people enter the property when private parties come to the quarry to secure material. Is that correct? MIYASATO: Yeah, I guess the first part of my question was is that allowed? KAHUHA: Is that allowed? MIYASATO: Is that—yeah. SELF: I don’t believe that was defined in the application as far as people going to the site and picking up cinder. I don’t believe that was part of the application. 16 EXHIBIT D MIYASATO: Okay, and then, I guess my follow up to that is within that Ocean View Subdivision, are the driveway entrances designated by the County in any way or can the driveway be moved around somewhat? Where I’m going with it is that— SELF: —Well, it’s private property so however they access the HOVE roads— MIYASATO: —Okay, here’s my concern is that the Rodrigues’ property at the entrance is that shear drop off and if you’re going to allow public access, and if they get out of their vehicle, you know. SELF: Well, it’s private property, so I don’t believe the County really has control over that. MIYASATO: Okay, so the driveway can be moved. SELF: Yes. MIYASATO: Okay, thank you. HEAUKULANI: Commissioners, any other questions of the parties or counsel? Thank you very much everyone. We previously closed public testimony on this matter. I’ve been made aware of two other individuals who I understand are surrounding property owners that got here after the public hearing portion of this trial was closed. They have asked for a reconsideration, asked us to reopen and allow both of them to testify. I’m inclined to do it assuming my colleagues are in agreement. I would ask for a motion to reopen public hearing for the limited purposes of allowing, I believe Jan Dannel \[sic\] and Debbie Sheldon to testify in this matter. HENKEL: I move to reopen public testimony for the two additional people. HEAUKULANI: Thank you, Commissioner Henkel. MOSES: Second. HEAUKULANI: Thank you, Commissioner Moses. Any discussion, Commissioners? MOSES: Three minutes. HEAUKULANI: Three minutes each. Hearing none, all those in favor, please signify by saying aye. COMMISSIONERS: Aye. HEAUKULANI: Any opposition? All right, the motion to open public testimony for the limited purposes of letting Jan or Jon Dannel \[sic\] and Debbie Sheldon testify carries. Thank you. I’d ask Jan or Jon Dannel \[sic\] and Debbie Sheldon to please come up to the table. 17 EXHIBIT D DANCEL: Good morning. Thank you for giving us the time to say our peace. HEAUKULANI: Good morning— DANCEL: —And we humbly do thank you folks— HEAUKULANI: —Could you please raise your right hands? DANCEL: My name is Jon Dancel— HEAUKULANI: —Could you please raise your right hand? Do you swear or affirm to tell the truth on this matter now before the Planning Commission? DANCEL: Yes, and under God. HEAUKULANI: Thank you. Sir, could you please state your name, and tell us where you’re from. DANCEL: My name is Jon Dancel, and we have the home right on Lurline and Kailua right across the quarry right there. HEAUKULANI: Ma’am, could you please state your name for the record for us, please? SHELDON: Debbie Sheldon— HEAUKULANI: —Please use your microphone. SHELDON: Hello, my name is Debbie Sheldon. I am an owner up there in Ocean View Estates. My home sits across the street from the quarry. HEAUKULANI: Okay, very well, thank you, ma’am. Welcome. Sir, you’ve got three minutes. Tell us what’s on your mind. DANCEL: Yes, thank you. I just—I’ve done and researched through the Black’s Law th Dictionary, 4 Edition, through estoppel. A bar that prevents one from asserting a claim or rights that contracts—contradicts what one has said or done before or what has been legally established as true. A bar that prevents the \[inaudible\] of issues and affirmations defense alleging good faith, reliance on a misleading representations and injury or detrimental change in positions resulting from that reliance. Estoppel by misrepresentation. An estoppel that arises when one makes a false statement that induces another person to believe something that, and that results in that person’s reasonable detrimental reliance on that beliefs and estoppel arising when negligence \[inaudible\] induces 18 EXHIBIT D someone to believe certain facts and that the other person reasonably detrimentally relies on that belief. Estoppel by representation. An estoppel that arises when one makes a statement or admissions that induces another person to believe something that it, that result in the person’s reasonable and detrimental reliance on that belief. Equitable estoppel. Equitable estoppel, a defensive doctrine preventing one party from taking unfair advantage of another when the false language or conduct a person to believe estoppel has induced, introduced another person to act in a certain way with the result that the other person has been injured in some way. Owner Reformation 1974, the clause of the United States Constitution requirements require members of the Congress and the state legislature and the members of, of the exclusive or judiciary branches, state or local to pledge by oath and affirmation to support the Constitution of the United States. I have just one thing I want to say. You know the person that died when the bulldozer got, got buried. I talked to that person the day before right across my house. I warn him how he were mining was wrong, and he—he was from the mainland. He told me this cause hey, I used to work there, I say, I said you are mining the wrong way. You putting your blades down and the mountain’s going to come on you. Guess what happened? The next day he died. My cousin, Rudolph, called me from work. Rudolph Kaupu—he was there to try to dig out the guy. He said, cuz, you were warning that guy. And you know what? It hurts me. I could, I personally can see the guy right now, right here, with me. And for my house, all that dust is still coming to my home. I humbly thank you folks for having me and my wife to give our testimony to all of you. I really humbly thank you folks. Mahalo. HEAUKULANI: Thank you, sir. Ma’am? SHELDON: Good morning. HEAUKULANI: Good morning. SHELDON: I just have a few questions. I would like to know who would be accountable should the area collapse in the cinder pit area, the roadways. Who will be accountable? Number two, did they get a geologist to visit the site since the cinder cone is part of the volcano. Three, was the EPA contacted to test the air quality, to observe the operation, to be sure the water sprinklers were working or are working whenever operation is being done in the area— when cinders are being hauled, or the rock crusher is going? When you went up there, there was no wind. Winds will be back in March, okay? And, it will be blowing pretty heavy. 19 EXHIBIT D Four, was the Health Department contacted to insure there is a, is no health risk to the neighbors, the public. You know, dust flies a very long ways. Five, who would be liable, responsible, if any of the above occurs, if it affects my family, my livelihood, and our neighbors? I am asking that all necessary studies be conducted, questions be answered completely before any permits are approved. Our life, our freedom of clean air, mental stress, are being threatened because of the fast track this process is taking. The Commission is allowing this project to go through so quickly. I am demanding accountability. Thank you very much. HEAUKULANI: Thank you, ma’am. Commissioners, does anyone have any questions for either of the testifiers? Thank you very much. We appreciate your time. Commissioners, I would entertain a motion to reclose public testimony, please. MOSES: I make a motion to close public testimony. HEAUKULANI: Thank you, Commissioner Moses. HENKEL: Second. HEAUKULANI: Second by Commissioner Henkel. Thank you. Any discussion, Commissioners? Hearing none, all those in favor, please signify by saying aye. COMMISSIONERS: Aye. HEAUKULANI: Any opposition? Motion to reclose public testimony carries. Thank you. I would now, I believe it appropriate to entertain a motion to go into executive session. HENKEL: Mr. Chair, I move that the Commission enter 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 HRS 92-5. MIYASATO: Second. HEAUKULANI: I’m sorry, second, Myles? MIYASATO: Yes. HEAUKULANI: Myles. Thank you. We’ve got a motion to go into executive session by Commissioner Henkel; second by Commissioner Miyasato. Any discussion? Hearing none, all those in favor, please signify by saying aye. COMMISSIONERS: Aye. 20 EXHIBIT D HEAUKULANI: Motion to go into executive session carries. At 11:09 a.m., it was moved by Commissioner Henkel and seconded by Commissioner Miyasato 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 92-5.. A voice vote was taken of all Commissioners present, and motion carried with five aye votes. The room was cleared, and the executive session started at 11:14 a.m. At 1:04 p.m., it was moved by Commissioner Moses and seconded by Commissioner Henkel that the Commission go out of executive session. A voice vote was taken of all Commissioners present, and motion carried with five aye votes. Chairman Heaukulani called a recess at 1:04 p.m., and the hearing reconvened for regular session at 1:08 p.m. HEAUKULANI: Okay, I’m calling this session of the Windward Planning Commission back to order. Thank you for being patient while we were in executive session. Commissioners, I would be looking for a motion for action. MIYASATO: Chair Heaukulani, I’ll make a motion. I move that the application to amend Special Permit, SPP 09-076 and the application for Special Permit, Docket No. SPP 15-178 be approved pursuant to the Hearings Officers’ Findings of Facts, Conclusions of Law, Recommended Decisions and Order and proposed conditions, which shall be amended and adopted to reflect as follows. Number one, the objections to the applications and testimonies in support of the applications received since the issuance of the Hearings Officers’ Report and recommendations. Number two, to reflect any potential adverse effect to surrounding properties will be mitigated with appropriate conditions imposed. Number three, with regard to Condition No. 7 of Arrow of Oregon’s Special Permit and Condition No. 6 of the Rodrigues’ Special Permit, within six months from the effective date of this permit, the Applicant shall install guardrails or safety or appropriate safety barriers and appropriate safety signage thereon, at locations where the cuts or embankments are located within the minimum quarry setbacks, setback widths of 15 feet from Kailua Boulevard and Lurline Lane. Within one year from the effective date of this permit, the Applicants shall submit a remediation plan for restoring the appropriate setbacks width buffers where the cuts have occurred within the minimum quarry setback width of 15 feet, shall be completed within four years of submittal of remediation plan. As recommended within the original Geotechnical Investigation Report, these fill slopes should consist of the material recommended within the report and that fill slopes using the on-site clinker material should be no steeper than two height to one vertical. 21 EXHIBIT D Number four, with regards to the Rodrigues’ Special Permit, the driveway entrance to the Rodrigues’ parcel which is south of Kailua Boulevard, shall be relocated to a reasonable distance along Lurline Lane, north of its current location, as approved by the Director, and that the parties proposed findings not adopted be denied as they are, in whole or in part, immaterial, unsupported, or otherwise inconsistent with the Hearings Officers’ findings and recommendations. IKEDA: Second. HEAUKULANI: Thank you, Commissioners. We have a motion by Commissioner Miyasato; a second by Commissioner Ikeda. Do we have discussions or comments, Commissioners? Hearing none, Jeff could you please roll call the vote. DARROW: Thank you, Mr. Chairman. If we could take one at a time first beginning with Arrow? Or do we want to do these together? PATEL: It’s one motion. DARROW: One motion so we do one motion for both approvals. Okay, with that, the motion before us is to approve the Hearings Officers’ Report along with amendments that were stated by Commissioner Miyasato. That’s good? I don’t think I could repeat that—. MIYASATO: —That’s good— DARROW: —all again. Okay, with that, we’ll take the roll call. Commissioner Miyasato? MIYASATO: Aye. DARROW: Commissioner Ikeda? IKEDA: Aye. DARROW: Commissioner Dela Cruz? Oh, I’m sorry, not here. Commissioner Henkel? HENKEL: Aye. DARROW: Commissioner Moses? MOSES: Aye. DARROW: And Mr. Chairman. HEAUKULANI: Aye. 22 EXHIBIT D DARROW: The motion passes five to zero. HEAUKULANI: Thank you, Jeff. The discussion ended at 1:13 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission 23 EXHIBIT D