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HomeMy WebLinkAbout2018-02-01 Hearing Transcript - HI Brewery SPP 842WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT FEBRUARY 1, 2018 A regularly advertised hearing on the application of HAWAII BREWERY DEVELOPMENT CO., INC. AMEND SPP 842) was called to order at 9:04 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Joseph Clarkson presiding. COMMISSIONERS PRESENT: Joe Clarkson, Donn Dela Cruz, Gregory Henkel, Donald Ikeda, Myles Miyasato, Thomas Raffipiy, and John Replogle (from 9:07 a.m.). ALSO PRESENT: Michael Yee (Planning Director), Malia Ho Hall (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner), Christian Kay (Planner), Shancy Watanabe (Planner), and Sarah Hata-Finley (Commission Secretary). And three members from the public in attendance. APPLICANT: HAWAII BREWERY DEVELOPMENT CO., INC. (Amend SPP 842) Application to amend Condition No. 4 (complete construction) of Special Permit No. 842, which allowed the development of a brewery, water and soft drink bottling facility on 14.587 acres of land situated within the State Land Use Agricultural District. The property is located east of Highway 11 (Volcano Highway) and north of Highway 130 (Keaau-Pahoa Highway), Keaau, Puna, Hawaii, TMK: (3) 1-6-141:001, 024, 027 and 028. CLARKSON: With that, if everyone's cell phone has been turned off, we'll start on the first item on today's agenda which is Hawaii Brewery Development Co., Inc., amendment to Special Permit No. 842, and Maija, would you proceed, please? JACKSON: Thank you, Mr. Chair. Good morning, everyone. COMMISSIONERS: Good morning. JACKSON: So, the first item on your agenda is the Hawaii Brewery Development Co., Inc. application. They're requesting an amendment to Special Permit No. 842. The subject property is located in the—wow, I'm drawing a blank here, sorry. FUKE: Puna District. JACKSON: Puna! Thank you! It's right near that border so that threw me off! So, the Puna District, just north of Keaau town. You can see the property outlined in red. The Special EXHIBIT A Permit area actually consists of four lots. One of them is zoned Agricultural – 5 acres, which is shown in the light green, and the other three are zoned Family Agricultural – 2 acres. Surrounding zoning to the north is General Industrial – 20,000 square feet, and then around there is primarily Agricultural – 20 acres which is shown in the dark green color. Okay, there we go. The Applicant is requesting an amendment for a five-year time extension to comply with Condition 4, and that is to complete construction of Special Permit No. 842. Special Permit No. 842 was granted in 1993 to allow the development of a brewery and bottling facility on a little over 14 acres of land in the State Land Use Agricultural District. The Applicant requests the additional time to find suitable operators of the various components of the project. And, so, this is the language that the Applicant is proposing for Condition No. 4. It says the the new language is underlined and language to be deleted is struck through. So, the new condition would be construction of the proposed brewery, distillery, or bottling facility and related improvements on one of the lots covered by TMK: 1-6-141:24, 27 & 28 shall be completed and a certificate of occupancy issued before October 18, 2023. Further construction on the second lot shall be completed and a certificate of occupancy issued within five years of completion of the first lot and then construction on the third or last lot shall be completed and certificate of occupancy issued within five years of completion of the second lot. So, this would allow for up to 15 years for all three lots to be developed. This is the approved subdivision plat for the property. The properties were recently subdivided into four lots, and—cops, let me go back here. So, this lot here, and you'll see this in the aerial image, it has an existing water bottling facility on it. And, these three lots below are vacant. I believe it's this middle lot here that's square shaped that was recently sold. The General Plan LUPAG Map for the area has changed since the Special Permit was originally granted. Currently, the properties are in Medium Density Urban, and right next to an Industrial node, this area that's shown in orange, Medium Density Urban, used to be Low Density Urban. When the permit was granted in 1993, the properties were determined by the Director at that time to be within the Industrial General Plan area because the LUPAG Map is not parcel specific, so the Director can interpret it to expand or contract. And, the subject properties are in the State Land Use Agricultural District, which is shown in the light green. The property just to the north which was recently rezoned is in the Urban District, which is shown in the pink. This is an aerial photo of the property. Again, here is the existing bottling facility that was transitioned to a bottling facility after the Special Permit was granted, and then you can see the three vacant lots here. And, this is a photo of the access road. So, the Special Permit, as well as the rezone ordinance for the property to the north do have conditions that required the paving of this access road, and so that was done, and you can see that. Sorry, I'm having a hard time with the clicker. Okay, so this is looking towards that bottling facility which is located in the background here. So, the EXHIBIT A 2 subject properties would be on the right hand side, and then this is looking like standing in the middle of the road here looking back towards the highway. So, the subject properties are on the left. The Planning Director is recommending approval of the amendment to Special Permit No. 842. And, I just want to point out one thing. If you look at the goldenrod sheet which shows your Recommendation and the conditions, so the requested amendment is to Condition 4, and you'll notice if you look at Condition No. 10, usually after, after all of the conditions at the very end, we usually have a condition that says the Applicant can request an administrative time extension from the Planning Director. We don't have one in this case. At some point, through the history of this permit, because there have been several time extensions, that permit condition was dropped. So, if the Commission feels like more time should be granted administratively so the Applicant doesn't have to keep coming back for additional time extensions, we can add that condition in. But, as it stands now, that condition is not in your recommended conditions of approval. That concludes my presentation. I'd be happy to answer any questions. CLARKSON: Any questions from any Commissioner? Okay, I have a question. This has been under the Special Permit since 1983. JACKSON: Nineteen ninety-three. CLARKSON: I mean ninety-three, 25 years, and they're requesting another 15 years essentially, which if my math is correct, that makes 40 years. Are there any Planning Department guidelines as to how long time extensions go before they are recommended against? JACKSON: Typically, the Department is open to continuing to allow time extensions unless there's been some significant change in the General Plan for the area or the land use pattern has significant changed to where we would no longer recommend time extensions because the use isn't as appropriate as it once was. CLARKSON: Thank you. JACKSON: So, that's not the case for this particular area. CLARKSON: Thank you. Any other questions? Thank you, Maija. Would the Applicant or their representative please come forward? Do you swear or affirm to tell the truth on this matter now before the Planning Commission? FUKE: Yes, I do. CLARKSON: Would you please state your name and speak directly into the microphone, please? EXHIBIT A 3 FUKE: Sure. Good morning, Mr. Chairman and Members of the Commission. My name is Sidney Fuke. I'm a planning consultant. I'm here representing or speaking on behalf of the Applicant, Hawaii Brewery Development Co. The Applicant would have been here except that he's currently seeking out other investors right now. I think I appeared before this Commission maybe a few months ago on a rezoning application that he had some interest in near this area, and at that time, I had noted and I would like to also note again that the Applicant has had extensive experience in the food and beverage industry, especially, you know, he was the founder of Blue Moon, Kai Vodka, and several other, and also Hawaiian, Hawaiian Springs, which this Special Permit affects a portion of it. In partial answer to the question that— by the way, first, the staff's report as always is comprehensive, and the recommendations and the condition was reviewed. They were reviewed by the Applicant, and he found them to be acceptable. Relative to the question that, you know, you've raised, I think that if you're just dealing like with a maybe a smaller area, and if this property were not subdivided, then probably the issue that, you know, for time extension would not really be present because it's not like you're dealing with a 13- or 14 -acre site that nothing has happened. You know, on this property actually, you know, you had Hawaiian Springs, and Hawaiian Springs although it, it's gonna, it's morphed into something, different business but it's still a bottling operation, it's still there, and that was granted pursuant to the original Special Permit. The owner, because he was having difficulty in attracting a tenant for the balance of the property, the thought process was that if you had smaller properties, maybe like two or three acres in size, then it becomes a little bit more marketable to attract, you know, potential vendors; and, as a result, the property was subdivided, created. The same, you know, thirteen or fourteen acres was then subdivided into four lots. One lot right now, as the staff has indicated, is the site of the Hawaiian Springs. The other lot, right now, was sold, and on that property, there is a well that was recently dug, and I think that well today has like about a 360,000 -gallon per day capacity, so the plan for that owner is to kind of fully develop that and have something operational whether it's going to be another water company or some kind of distillery. It's really going to be up to that new property owner, but my understanding based on my discussions with the Applicant is that hopefully that project will come on line in 2019. So, I think that, in this particular situation, it's a project that's—and I was just kind of sharing this with Maija and maybe I, but I'll just say it. It's a project where like it's too late to abort. You know, because it's like you're about like 4 or 5 months pregnant already. You know, you're kind of like beyond that stage of abortion because you've already started the process and so what the Applicant is hoping is that the Commission would favorably consider this extension largely so that you can get the project to full term, and sometimes it will take a little longer than normal, but essentially, I would think like within the next two years, you'll probably have another project completed, and once that project is completed, then it starts to trigger, timetable trigger for the third lot and the fourth lot, so, I would hope that, you know, you'll have like this so called agronomy [sic], what do you call that—this synergy working so that once you have another project going then, you know, it just generates an interest in that area. So, we ask for your support on this. EXHIBIT A 4 CLARKSON: Thank you. Commissioners, any questions for the Applicant? MIYASATO: Good morning, Sidney. FUKE: Good morning. MIYASATO: Am I on? You know, we've, as far as I can remember, we've granted ten-year time extensions, and for me, fifteen years, I mean, it's creative, you're doing five -five -five, right? But, at the end of the day, you're asking for a 15 -year extension, and for me, that's a lot. I know you recall one meeting where an applicant just before you had gotten a ten-year extension, and you came in for a five and you asked for the ten, right? So, I mean, we set precedence, yeah, with what we do, and because of that, I'm a little uncomfortable with a 15 - year extension. You know, we've done it, extensions for applicants that have shown good practices and being good neighbors, stewards, and in this case, I don't see any reason why not to give the extension, but I'm just uncomfortable with the 15. So, for my own self, is it acceptable to do a five for the initial lot and then the remaining two another five. Combine the last two after you trigger the first. FUKE: No, I can understand like, you know, the 15 years, you know, when you look at it from when the initial permit was issued would, you know, could be considered like almost like far reaching, so, I think that if the Commission is inclined to at least consider ten knowing that the first one is pretty much going to come out of, you know, going to come on line next year or within the next couple years, I think thatI don't think the Applicant, although he's not here, I don't think that he would object, you know, to that level of generosity shared by the Commission. MIYASATO: Okay, thank you. CLARKSON: So, just to clarify, you were proposing just a blanket ten years for all three parcels or. MIYASATO: No, the first parcel five and then the remaining two an additional five. CLARKSON: That's right. That's right. Thank you. Any other questions for the Applicant? If not, thank you. FUKE: Thank you. CLARKSON: You may be seated. We have one person who is signed up to testify on this application. Dwight Vicente, would you please? Would you raise your right hand, please? Do you swear or affirm to tell the truth before this matter [sic], before the Commission? VICENTE: I'm only dealing with law, that's it, so, I do. CLARKSON: Please state your name and continue. EXHIBIT A 5 VICENTE: Okay, my name is—good morning, my name is Dwight Vicente. I'm representing the Hawaiian Kingdom. The question of jurisdiction comes to play. Where are we? We are in the Hawaiian Kingdom. There is no State of Hawaii. If there was, there would have been an amendment to the U.S. Constitution. The land laws that are being applied in this situation is based on the Northwest Ordinance of 1787. That deals only with the Ohio River Valley. The application of the Northwest Ordinance to this Kingdom goes as far back as 1875 with the Reciprocity Treaty. You can look at the history. The homestead program in 1884, the Americans wanted to have homestead here. Why? The treaty was invalid because it's based on the Northwest Ordinance. It violates the U.S. Constitution and, therefore, violates the sovereignty of the Hawaiian Kingdom. The land planning is a political question for the Hawaiian Kingdom, not for anybody else, because the lands here are either Crown or government lands, and all Crown and government lands are subject to Native tenant rights first of all. Second, there's a 25 -year contract. You don't own land in the Hawaiian Kingdom. You only have a land lease, and the other one is a kuleana lands which is life term of the individual. So, by applying the land development here in this Kingdom, which is a foreign thing that applies only to the Ohio River Valley, is questionable. It's unconstitutional. These are political—whether the lands are developed or not is a political question for the Hawaiian Kingdom. You go back to Downes vs. Bidwell or even Sai vs. Clinton, they always cite the Article 4, Section 3 clause to the U.S. Constitution which is limited to one territory, that's the Ohio River Territory under the Northwest Ordinance of 1787. There's no amendment to that ordinance or to Article 4, Section 3, Clause 2 or Article 1, Section 2, Clause 3 of the U.S. Constitution. There is only 13 states. Everything was shoved—if you read Downes vs. Bidwell, everything was shoved under Article 5 of the Northwest Ordinance by the U.S. Congress. There's no amendments. They all, all was done by joint resolution, which is all questionable. And, the other point is, I want to make out that the treaties with the Hawaiian Kingdom all ended in 1897 with the foreign countries except for the Reciprocity Treaty of 1875, which was term ended in 1894, which the Republic of Hawaii continued. It's not their treaty. And, again, was continued in 1898 by the U.S. Congress by joint resolution. So, to have a treaty continued, that means it's recognized that the Hawaiian Kingdom continues to exist. You cannot have a treaty by yourself. The question is was the Reciprocity Treaty constitutional? It cannot be based on the Northwest Ordinance. It has to be based on the U.S. Constitution which the Northwest Ordinance was superseded by the U.S. Constitution by at least two months. One was written in January, excuse me, July 1887 [sic], which is the Reciprocity which is the Northwest Ordinance, and the U.S. Constitution was adopted in September of 1787. EXHIBIT A 6 So, with this, I'll conclude with reserving the rights of this Kingdom. It's a sovereign nation, and this political question is reserved for the Hawaiian Kingdom to develop its lands. Thank you. CLARKSON: Are there any questions for this testifier from the Commission? No, if not, I will, I will say, I'll ask our Corporation Counsel to advise you about what your rights are in terms of appeal of any action that the Commission may take this morning. HALL: I'm the Commission's lawyer not anybody else's lawyer, but, yeah, anybody has a right if you feel that you have standing in this case to petition for intervention and then you can appeal it to the court if you feel that it is improper. CLARKSON: Thank you. VICENTE: I have a statement to say about that. The courts here are based on the Northwest Ordinance. They all take their oath to the U.S. Constitution. There's a conflict because the lands are Crown and Government lands. Only the Hawaiian Kingdom's courts can deal with that issue. That's why if you read Sai vs. Clinton, he went, Sai, Keanu Sai went up to the U.S. District Court in D.C. He first started in Oahu District Court which has no jurisdiction. He went up to the U.S. District Court in D.C., and he got stopped there by—he didn't understand Article 4, Section 3, Clause 2 of the U.S. Constitution. That's limited to the Ohio River Valley. It does not extend beyond. U.S. Courts do not have jurisdiction over this Kingdom. Only as agents, officers, the President, the Congress, and this case here, the Queen's protest of January 7, 1893, it's against U.S. Minister Stevens, and that goes original jurisdiction to the U.S. Supreme Court, Article 3, Section 2, Clause 2. That's the only court that can hear, and the complaint is over U.S. Minister Stevens, not the Hawaiian Kingdom. They have no jurisdiction over. So, when you talk about it goes to court, the only way you go to court in this Kingdom is a land contract which is 25 years, quiet title, and that's because there's a change in the contract. So, unless there's a contract, I hear a lot of people talk about quiet title, but where's the contract? There's a 25 -year contract, and it's always between the Hawaiian Kingdom and the individual. Never two individuals. Thank you. CLARKSON: Okay, thank you. Are there any other testifiers on this matter? If not, I'll ask for a motion to close public testimony. DELA CRUZ: So moved. HENKEL: Second. CLARKSON: All those in favor? COMMISSIONERS: Aye. CLARKSON: Opposed? Motion carries. Public testimony is closed. Do we have a motion for action? EXHIBIT A 7 MIYASATO: Chair, I'd like to make a motion. I move that the application to amend Condition No. 4 of Special Permit No. 842 amending that condition, further amending that condition, to read, "before October 18, 2023. Further, construction on the second and third lot shall be completed and certificate of occupancy issued within five years of completion of the first lot" and striking out the last sentence, be approved based on the Planning Director's recommendations and findings, which shall be adopted. CLARKSON: Is there a second? DELA CRUZ: Second. CLARKSON: It's been moved by Commissioner Miyasato and seconded by Commissioner Dela Cruz that a motion for approval be acted on as amended. Is everyone clear on the amendment? Any questions? IKEDA: Question, please. Commissioner Miyasato, from what I gather, there's a five-year extension after—this isn't for ten years, it's just for the five, or is it for ten years total or is it for example, from what I gather, this project might be completed in three years or less. So, is it five years, so it's for seven years? Ten years? You know, I want to know because it, if they complete the project in two years or three years, then your five-year extension, there would only be eight years and not ten years. MIYASATO: Yeah, I stated that after the completion of that lot, then it triggers the next five. IKEDA: Okay, so it's not necessarily ten years is what you're saying. MIYASATO: If they don't complete that first project in two years, then they have up to that five years to complete it. IKEDA: No, no, that's not what I meant. From what I gather, the first project going be completed within three years. MIYASATO: Possibly. IKEDA: Possibly, okay, three years. And, so you're giving it an extension for five years after the completion of that project. MIYASATO: Correct. IKEDA: So, it's, so the project doesn't necessarily run for ten years is what I'm saying. MIYASATO: The extension? IKEDA: Yes. EXHIBIT A MIYASATO: Yes. IKEDA: Okay, that's all I wanted to know. MIYASATO: Okay. CLARKSON: Okay, IKEDA: —Can I ask CLARKSON —any other discussion? IKEDA: I'd like to ask Mr. Fuke a question if it's all right. Mr. Fuke, will the ten years, seven or eight years be enough time or you need at least ten years because, you know, I also run projects, and time's really important for me. FUKE: Thank you very much for bringing up the question, and that was what kind of prompted me to come up because my understanding was that when I had said that okay, fifteen, the maximum fifteen may be little bit overly generous, and when you had mentioned, and Commissioner Miyasato had mentioned about the ten-year like a maximum, then, you know, I thought that probably speaking on behalf of the Applicant that would be kind of like a reasonable compromise, and so I agree with, you know, with the analysis that if you, if the second project that's going to come on line might be, it might happen as soon as, maybe within the next year and a half, then essentially, all you're looking at is a total of about six or seven years for the total project to be, you know, to come on line, and I would hate to think the Applicant would have to come back to the Commission again to request for, you know, just a little bit more time. So, I would kind of like, would recommend or suggest that the Commission consider a language something along the line like what Commissioner Miyasato had proposed which was, you know, construction on the remaining two lots shall be completed and certificate of occupancy issued with, no later than October 18, 2028, which would then basically, you know, be like five years from the maximum date that, you know, of the first five years, which is October 18, 2023, so. And, that way then, the Applicant would have a, you know, essentially like a full ten years within which to do the, you know, full build -out on all three lots. IKEDA: That was my concern because from what I gather, but if Commissioner Miyasato's amendments, it could be seven years. It could be eight years, and, you know, I'm going through a project now and on my own property, and it takes quite a while. It's not as simple as you think it is even if you have all the, all the plans and everything, and you have to go through things like building permits and so forth, so you do run into trouble where you get, you know, it's held up quite a while, so I just wanted to know what Mr. Miyasato's thinking is. Is he still going to be stuck to that five years or he's going to go at least to ten years? MIYASATO: Thank you, yeah? Thank you for that input. Yeah, that sounds reasonable for me, for a ten-year extension. So, would we do the ten-year for the second and third lot? EXHIBIT A 9 FUKE: So, if you just leave it as, you know, what you had suggested initially, the first language like the first one shall be completed no later than October 18, 2023. Further, construction of the remaining two lots shall be completed and certificates of occupancy issued no later than October 18, 2028. That would—that would, and delete the balance of the, you know, underscored item. I think that would accomplish what we, I would hope like the intent was, the maximum of ten years from where we stand today. MIYASATO: Yeah, that's acceptable for me. So, I'd like to amend my motion to reflect that 2028 for the second and third lot. CLARKSON: Okay, is everybody clear on what the revised amendment is? IKEDA: I'll second that motion. CLARKSON: Okay. Well, I think we already actually have a second. IKEDA: No, it was for the HALL: `Cause it was amended. CLARKSON: Oh, it wasn't. I'm sorry. So, it's been moved by Commissioner Miyasato and seconded by Commissioner Ikeda. Any further discussion or comments? If not, we can have a roll call vote, please. IKEDA: Excuse me, do we vote on the amendment orI think we vote on the amendment, don't we? JACKSON: Well, there's two motions that are in play right now. There was the original motion and then it was amended by Miyasato and Ikeda. So, now we're just voting on the amended motion which is to amend Condition 4. The second line would state, "Further, construction on the remaining two lots shall be completed and a certificate of occupancy issued before October 18, 2028." And, then that last line would be deleted. MIYASATO: Oh Maija, I'd like to CLARKSON: —And, that is the motion? JACKSON: Yes. CLARKSON: Okay. MIYASATO: Chair, just to clear the record, I'd like to withdraw my first motion, yeah? CLARKSON: Okay. JACKSON: Okay. All right. So, I will take the roll. Commissioner Miyasato? EXHIBIT A 10 MIYASATO: Aye. JACKSON: Commissioner Ikeda? IKEDA: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Henkel? HENKEL: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: Commissioner Replogle? REPLOGLE: Aye. JACKSON: And, Chair Clarkson? CLARKSON: Aye. JACKSON: All right. The motion carries seven, zero. FUKE: Thank you. Thank you very much. The discussion ended at 9:39 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT A 11