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HomeMy WebLinkAbout2018-08-13 Hearing Transcript - Piilani Partners LLC REZ 727 SMA 18-070 REVOCATION SMA 334WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT AUGUST 13, 2018 A regularly advertised hearing on the applications of PIILANI PARTNERS, LLC (AMEND REZ 727, SMA 18-070, REVOCATION OF SMA 334) was called to order at 9:14 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Joseph Clarkson presiding. COMMISSIONERS PRESENT: Gilbert Aguinaldo, Joseph Clarkson, Donn Dela Cruz, Donald Ikeda, John Replogle. ABSENT & EXCUSED: Thomas Raffipiy. 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 4 members from the public in attendance. APPLICANT: PIILANI PARTNERS, LLC (AMEND REZ 727) Application for a 5 -year time extension to comply with Condition C (Secure Final Plan Approval) and Condition D (Complete Construction) of Change of Zone Ordinance No. 92 122, which reclassified approximately 2.5712 acres from Resort -Hotel -Safety -7,500 square feet (V -S- 7.5) district to the Limited Industrial- 20,000 square feet (ML -20) zoning district in 1992. The subject property is located at 525 Piilani Street, at the northeastern corner of the Piilani Street- Mililani Street intersection, Waiakea, South Hilo, Hawaii, TMK: (3) 2-2-033:011. APPLICANT: PIILANI PARTNERS, LLC (SMA 18-000070) Application for a Special Management Area Use Permit to develop a potable water well and bottling facility with related improvements on a 2.5712 -acre parcel within the Special Management Area. The subject property is located at 525 Piilani Street, at the northeastern corner of the Piilani Street-Mililani Street intersection, Waiakea, South Hilo, Hawaii, TMK: (3) 2-2-033:011. APPLICANT: PIILANI PARTNERS, LLC (REVOKE SMA 334) Request to revoke Special Management Area Use Permit No. 334, which was granted in 1992 to allow the construction of a warehouse, fish processing plant, accessory office use, parking and related improvements on a 2.5712 -acre parcel within the Special Management Area. The subject property is located at 525 Piilani Street, at the northeastern corner of the Piilani Street-Mililani Street intersection, Waiakea, South Hilo, Hawaii, TMK: (3) 2-2-033:011. [Note: Item Nos. 2, 3, and 4 were consolidated into one hearing.] 10V1II:111 1.1 CLARKSON: The next item on the agenda is listed as three items, but they're all from the same Applicant. They all involve the same parcel of land, so it's my understanding that staff would like to combine the presentations. We will proceed on all three at once for discussion but then we'll have to act on each application separately. KAY: Yes, thank you, Mr. Chair. Good morning, Members of the Planning Commission. It's good to see you this morning. So, yeah, we have now with us three different actions. The Applicant is Piilani Partners, LLC. They are requesting an amendment to Change of Zone Ordinance No. 92 122 or Rezone 727; a revocation of a Special Management Area Use Permit No. 334; and a new Special Management Area Use Permit Application No. 18-70. The subject property is located in the South Hilo District of Hawaii Island in the Waiakea area. For your reference, we've got Manono Street generally running north and south through the slide here, and Pi`ilani Street running generally east -west. The subject parcel is located here outlined in red, and in a gray color, for your reference, this is the County's Ho`olulu Recreational Complex with the Civic Auditorium. And, then this is the Wailoa State Park. The Applicant is requesting a revocation of Special Management Area Use Permit No. 334, which was granted in 1992 to allow the construction of a warehouse, fish processing plant, accessory office use, parking and related improvements on the subject parcel within the SMA. Also requesting a 5 -year time extension to comply with Condition C, Final Plan Approval, and Condition D, time to complete construction of Change of Zone Ordinance No. 92 122, which reclassified approximately 2.5712 acres from Resort Hotel -Safety — 7,500 square feet district to the Limited Industrial — 20,000 square foot zoning district. Finally, they are requesting an SMA Use Permit to develop a new potable water well and bottling facility with related improvements on an approximately 31,000 -square foot portion of the subject property. The proposed project consists of a supply well, two 100,000 -gallon storage tanks less than 20 feet in height, a booster pump station, a 1,500 -square foot bottling plant warehouse, and a 560 -square foot office building, both less than 20 feet in height and associated parking and landscaping. The Applicant is requesting these things for the following reasons. For the SMA revocation, the original Applicant, Suisan Company, planned to develop this facility in conjunction with a planned fish auction site near the mouth of the Wailoa River. Due to health and other environmental requirements, the planned use of the Suisan Fish Market auction site was terminated. This, along with a sluggish economy at the time, caused Suisan to shift focus to improving its current location. As such, Suisan has decided to abandon the fish processing plant concept and part with the property. So, the recent amendment is based, requested because Suisan abandoned the proposed fish processing project and, as such, did not comply with several conditions of the Change of Zone. The Applicant is requesting a time extension to secure Plan Approval and complete construction EXHIBIT B 2 to comply with those conditions for the new proposed project. And, finally, the new SMA permit was requested because in the early 1990's, the State conducted a drilling project in the area and found a fresh artisan water source at a depth of approximately a thousand feet. The Applicant hopes to harvest this potential resource at an initial draw of a 100,000 gallons per day, and based on market demand, increase it to 200,000 gallons per day. Those bottled beverages would be produced, stored on site, and distributed to various local and non -local markets. The County zoning for the subject parcel is Limited Industrial — 20,000 square feet. Other surrounding zoning is Resort zoning indicated in purple, General Commercial zoning indicated in the red, and then Open zoning indicated in the green which is associated with State park and the County's recreational facilities. Again, for your reference, Pi`ilani Street is running generally east -west through the slide with Manono Street running generally north -south. The State Land Use designation for the subject property and much of the surrounding area is Urban as indicated in pink and Conservation as indicated in light blue, is associated with the Wailoa Stream and Pond. The County's General Plan designates the subject parcel as Industrial with surrounding designations as Medium Density Urban indicated in orange and Open and Conservation in green and blue, respectively. And, this is just showing the SMA map for the area. The SMA is the red -thatched area, and the subject parcel is fully within the Special Management Area. Here's an aerial photograph of the subject parcel. Again, we've got Manono Street running north -south through the slide. The Civic Auditorium here on the right. Pi`ilani Street running east -west, and the subject parcel is outlined in blue. The subject parcel is currently vacant of any improvements, and just again for reference, we've got Mililani Street running here that terminates at Pi`ilani on the map. Here's the Applicant's site plan. On the left hand side is a blown up version of the entire parcel. The orientation is flipped a little bit. Here we've got Pi`ilani Street running north -south. Through the slide here is the subject, requested area permit area, pardon me, on the southern portion quarter of the property. On the right-hand side, the image is blown up a little bit. It's showing the proposed structures, storage tanks, booster pump area, and the structures being at the warehouse and the office with also showing appropriate parking and landscaping. And, here's some elevations of the proposed warehouse and office showing front and side elevations in relationship to each other. Here is a view of the subject property from Mililani Street. Here's a view of the property from across Pi`ilani Street, a little bit closer. And, then, here's a view of Mililani Street from the ocean side of Pi`ilani Street, and this area right here is the location of the optometrist, Camblor Optometry Office. So, it's in fairly close proximity to the subject parcel. So, the letter we referenced in the report, that's where the doctor's office is located relative to the parcel. EXHIBIT B 3 Here is Pi`ilani Street looking east toward Manono with the subject parcel on the left and Pi`ilani Street looking west toward the State park with the subject property on the right. The Planning Director is recommending the following. A favorable recommendation be sent to the County Council on the Change of Zone amendment, approval with conditions on the new SMA permit, and approval of the revocation request for the old SMA permit. That concludes my presentation. I'd be happy to answer any questions that the Commission may have. CLARKSON: Any questions for Christian? I have one question. Can you go back to the zoning? I was just struck by the fact that it's an Industrially zoned parcel surrounded by Resort parcels that are apparently from the photographs are not occupied by any Resort structures, but - KAY: That's correct. Yeah, so, the—there were two actions back in the early nineties. In 1991. the General Plan was amended to Industrial from, I believe, the surrounding Medium Density Urban, and then in 1992, the rezone and SMA were granted. So, this was specifically, the action was specifically approved based on that fish processing plant for Suisan in relationship to their auction area. CLARKSON: I don't remember from the Background Report, but are there, were there any more stringent than usual noise or other kinds of conditions put on the rezone? KAY: So, yes, in response to Dr. Camblor's letter, we recommended to require landscaping requirements that had to do with Industrial, that is adjacent to Residential which is greaterso, the landscaping is basically going to create an opaque screen between the ground and six feet high and then intermittent screening up to 20 feet high which wouldn't normally be the requirement in that case. And, they'd also be required to meet the State Department of Health noise guidelines for industrial uses. CLARKSON: And, well, that's pretty, pretty loud for regularI was actually referring to the original rezone, but I'm glad to know about that. KAY: Not that I'm aware of in the original rezone, yeah, I don't think it was a consideration. CLARKSON: There wasn't? KAY: Yeah. CLARKSON: Okay. Thank you. KAY: You're welcome. CLARKSON: No further questions? We'll proceed. Will the Applicant or their representative or both please come forward? Please raise your right hand. Do you swear or affirm to tell the truth on this matter before the Planning Commission today? EXHIBIT B 4 FUKE: I do. NANCE: Yes. CLARKSON: Whoever is going to go first, please introduce yourself and proceed. FUKE: Thank you very much, Mr. Chairman. For the record, my name is Sidney Fuke. I'm a planning consultant, and I've been assisting the Applicant with the processing of this request. To my right is Tom Nance, and he was retained by the Applicant to assist with the, providing the technical support regarding the hydrological information associated with the project, so he'll be able to testify to some of the questions or some of the comments that were made in the report as well as any other public comments relating to the potential source and the impact of the project. The staff's report is as always like very comprehensive. We've had a chance to review the staff's proposed recommendations with the owner, and the owner is receptive to all of those conditions. In summary, what I'd like to kind of indicate before turning it over to Mr. Nance is that the reason why there's like multiple processing is that the original project as envisioned by Suisan then was to do like a fish processing distribution center in that particular area, but obviously as the staff pointed out, you know, that concept was abandoned and so now the Applicant, the Applicant now wants to do a water well in that area which is consistent with the existing zoning, Industrial zoning. But, nevertheless, the time expired, and so there is a need for the time extension. Associated with Suisan's original plan, they had an SMA permit issued. So, that had to be revoked to be able to now have a new permit, you know, a new SMA permit for that. Essentially what the Applicant, based upon information that was provided by its consultant and other information that it had access to, felt that this site would be suitable for a water well. And, so, that's the whole plan. So, if successful, then it would be a maximum of 200,000 gallons per day that would be drawn out, harvested from the ground, and then bottled. At the end of the day, the cost would probably be like 2-1/2 to 3 million dollars and would probably employ about six to eight at the most individuals. Notwithstanding the action taken by this Commission and ultimately, hopefully, it's favorable, as well as by the County Council for the time extension, before they can actually have that bottling facility up and running, they still need to get a well drilling permit from the State Water Commission and that gives them the authorization to drill. And, if the water, if the quality and the quantity of the water proves to be, you know, positive, then to convert that into a potable drinking well, they still need to get the approval of the State Department of Health to have a certified—as a drinking facility, drinking well. You know, when they had approached me, I, you know born and raised on this island and lived almost all my life here in Hilo, so I'm kind of familiar, you know, with that property and I was aware like at the, you know, there were like the Canec processing used to, you know, plant used to be which is really on the corner of Kekuanao`a and Mililani Street which is maybe about like a quarter of a mile on the Puna side of this area. EXHIBIT B 5 But, nevertheless, this area is kind of close to that, you know, close to that facility. There was a packing plant, you know, on the property, and in what—and Suisan at that time was going to utilize that packing plant for its own operation. We had an archaeological study done just to see what's on the ground, and basically, they said that yes, you had a lot of these abandoned—you know, remnants of these abandoned structures, and they found like an axle gear. So, they had to figure out like, you know, what's this axel gear, but it turned out that Suisan had relocated some of their truck parts, you know from their operation near the airport so they put `em over there so, you know, that was what it was. So, the long and short of it relative to the archaeological standpoint, there really was nothing on the ground, and the State Historic Preservation Division essentially concluded, you know, made that same conclusion. But, because of the potential, because this site was going to be used for a potable well, what the owners did was to commission in Phase 1 an environmental study, and that's included as part of your, the exhibit we had submitted. And, essentially, the Phase 1 environmental study shows that there really was nothing, you know, to be concerned about, and if there were then like in the situation where the former Canec was, they had to go through Phase 2, which was you know actual removal and remediation you know of that site. So, in this case here, the environmental consultant concluded there was no need for remediation on the site. That's pretty much it. I'd like to kind of turn it over to Tom Nance. Tom Nance is president and owner of Tom Nance Water Engineering, and they've done a lot of—he's a, he's a hydrologist, and he's done a lot of studies, you know, on this island and actually like within the whole State. So, he can speak more directly to the issue of the source and also like the quality and related information. Tom? NANCE: I'm Tom Nance, consultant from Honolulu offices, 560 North Nimitz Highway, Suite 213. The design of the well is based essentially entirely on the result of the drilling program that was initiated through Don Thomas and others at the University of Hawaii Hilo, and relatively nearby, the first of the wells they drilled was in the early nineties, '93, `94, called KP -1. And, it's important for you to kind of picture the stratigraphy you go through to the zone that we will hopefully be getting the fresh water from. Because we start out in a formation which has alluvium material and coral material and at a couple hundred feet, you get into the Mauna Loa lavas. And, you keep drilling down through the Mauna Loa lavas, at that well, about a thousand feet or at nine hundred some odd feet, and what you run into is a soil and saprolite layer which is the weathered surface of the Mauna Kea lavas which lie beneath in this location, the Mauna Loa lavas above. That hundred foot saprolite layer is essentially impermeable, and so what you have below that layer is fresh groundwater in the Mauna Kea lavas. And, that was the result of that KP -1 well, and we're hoping to be able to achieve that same result in the well onsite. It's relatively close -by. The Water Commission designations of aquifer systems is really two-dimensional. It doesn't look at the third dimension. So, when we put in an application, they'll classify it as being in the EXHIBIT B 6 Hilo aquifer, sustainable yield of 349 million gallons a day. But, their designation isn't the formation; it's just the lateral two-dimensional thing. The neighboring to the north aquifer, Onomea aquifer, 147 million gallons a day of sustainable yield is the Mauna Kea lavas. So, we would have a well that was classified being in the Hilo aquifer system but really would be pulling water out of the Mauna Kea's, from the Onomea aquifer system. It's just the Water Commission, two dimensions, doesn't account for formation differences with depth. The reality is if we could replicate what was found in the KP -1 well, it's very likely that this will actually be a free-flowing well at the depth 900 to a thousand feet below sea level, the density difference between salt water above, salt water below the fresh water, and the sea water at the shoreline will dictate a water level, static water level in this fresh water formation probably at least twenty and probably twenty feet higher than mean sea level. The ground elevation at the site is about 14 or 15, so we could, in fact, have a free-flowing well. But, the well construction, once we've hit this formation, we'll do a test with what's called a packer so we can isolate the fresh water zone. See what the head is. See what the water quality is. Get an idea of the yield. And, if that's going to be justified doing the bottling company, the next step would be ream the borehole, put in a steel casing, and basically grout seal all the way down to the fresh water formation so the salt water above doesn't come in, and we won't take it too deep so we don't pull salt water from below. So, the chance of surface activities at this site, contaminating the ground water that we tapped into is essentially negligible. If you've got a thousand feet of formation including this, basically this aquiclude of the saprolite layer separating Mauna Kea—Mauna Loa lavas up top and Mauna Kea lavas below. So, the draft of a hundred thousand or possible two hundred thousand depending on market is an incredibly small portion of what the sustainable yield of the aquifer is. So, any adverse effect on any prospective other use of the aquifer is going to be negligible. CLARKSON: Any NANCE: Just another point that Sidney asked me to talk about. This is a free-flowing system. It's driven by high-level rainfall, recharging the aquifer. So, it's a flow through natural flow system, and the water that we're tapping, if we didn't tap it, it would discharge well off shore. We've actually hit this same kind of fresh water way below the salt water in West Hawaii, and in those areas what we found is that the fresh water, even miles inland, has a substantial response, to the ocean tide because it's connected to where that water is ultimately discharging into the marine environment. FUKE: JustI'd like to kind of like just make one final point, that, you know, there may be some issues as far as like well, you know, if you're going to harvest this water, then will it mean a depletion of the overall resources, and correct me if I'm wrong, Tom, but you know as part of the Onomea aquifer, the State Commission of Water Resource Management, they determined EXHIBIT B 7 that the estimated sustainable yield of that aquifer is like about 147 million gallons per day. And, then the current and planned uses should be no more than 5 million gallons per day, so essentially, you have like about 143, 142 million gallons per day. That's the surplus. With this project, the project would use only .20 million gallons per day, so that would be less than .2 percent of the overall aquifer. So, at the end of the day, if it's very successful, everything goes according to, you know, plan, then the balance of the aquifer would still be 141.8 million gallons per day. That's a very substantial amount. CLARKSON: Are there any questions from the Commission? IKEDA: Yes, I'd like to ask Mr. Fuke. Mr. Fuke, it's in the tsunami zone so how do they, gonna prepare for that? FUKE: Yeah, actually, it's in a tsunami evacuation zone. According to the FIRM Map, the Flood Insurance Rate Map, the site is designated Zone 'X" So, if it were like designated like Zone "VE" you know "X" or whatever, then structurally they would have to make the necessary changes to accommodate the structural requirements of Zone "VE" or Zone "XE" or Zone "VE" or "AE." In this case, unless I've read the map wrong, it is Zone 'X" IKEDA: Can I ask another question to the other gentleman? You know, like you said, there's no chance of any contaminant going into the aquifer because, like I said, I know Canec was right next by the Wailoa River, and they used to use arsenic to make the Canec, so that was a big concern of mine. NANCE: Yeah, the well itself, the annular space between the casing and the borehole will be filled with cement entirely all the way down to where the fresh water zone is, so potential contamination of prior land uses around won't be a problem for the water being derived by the well. CLARKSON: I have a couple of questions. What was the reason for the drilling of the test well by the State? Why were they interested in that aquifer? NANCE: They weren't interested in that aquifer. What they were trying to do is figure out the stratigraphy to great depth so they instituted this purely scientific program. They drilled another one over near the airport that was a wildly flowing 2,000 -gallon a minute free-flowing well. They had no idea that they were going to encounter this aquifer when they started drilling. It was a complete surprise, a pleasant one, but a complete surprise. But, they're really just trying to peel back in geologic time to see what the stratigraphy looked like. So, they've got, since then, they've done a couple up in the Saddle Road area, Pohakuloa, and I mean, it's an incredible program to open up knowledge, but it was not seeking an aquifer. It was purely geologic information. CLARKSON: Thank you very much. And, the other question I had was you mentioned that they have to get a permit from DLNR to drill the well in the first place, and I just wanted to ask because you obviously have a lot of experience with water supply projects. The public trust 10V1111.11 1.1 interest in the water, the public resource that this aquifer holds, is that taken into consideration by the permitting agency before they would actually issue a permit or when does that consideration normally get taken? NANCE: I let me tell you what the process is because I can't answer your question exactly. We file a well construction/pump installation permit with the commission. It's processed purely administratively although it gets noticed in the Water Commission's bulletin. We will have to have passed any EIA, EIS, or SMA requirements before the permit will be issued. They'll process the permit, but they won't issue it until we've got all the other approvals in line. But, that approval of the permit, to my knowledge, does not take into account the public trust doctrine. It takes into account the design of the well if it matches their standards, the potential impact on other users, that kind of thing, but as far as my experience with the Water Commission since it was created is that public trust issue does not come up in that process. FUKE: And, so to supplement that, so maybe, it may be the role of the Planning Commission and so, we've had discussions with your staff, you know, specifically on this issue, and that's the reason why you know I had to ask Mr. Nance about like what percentage of water is this project going to consume, you know, from the overall aquifer system, be it the Onomea system or the Hilo, you know, aquifer system, and as was kind of pointed out, it's infinitesimally small. And, so, if it were like, you know, they're taking about 50 percent of the overall resource, then I think there would be some amount of concern, but this is way less that even one percent—you know, it doesn't even reach one percent. CLARKSON: I understand that. I'm justso, you're saying that basically the Planning Commission is the one to decide whether the public, to look after the public interest, the public trust, with regard to this water. There are no—let me just be clear—there are no withdrawal fees, permit fees, ongoing fees where money would flow from the extractor of the water to the State for the privilege of taking this water out of the ground. NANCE: There are no such—there's a fee for the permit, and once you've done the well, you must file a well completion report. No fee for them to review that. They will issue a pump installation permit. As I said, we may have a free-flowing well. We may not need to install a pump. But, the extraction, there is no fee paid to the State or County. CLARKSON: No royalties? NANCE: No, there's just an obligation to report what you're doing in terms of the amount extracted and water quality parameters, but no fees. CLARKSON: Thank you. Any further questions? REPLOGLE: I it's not a question, but it's a statement I guess. So, it's my feeling and many others that what you're doing is you're making use of an ecosystem service, like Mr. Fuke pointed out that the water's going to come from the forest, percolate down into the well. The people who are charged with taking care of those forests and preserving them and keeping, keeping them healthy so they keep producing water are drastically underfunded if I might say, EXHIBIT B 9 and if I don't go along with this, it's because of that. I feel I don't know how it would be set up—ten cents a gallon or whatever that would go, and that funding would go directly into the watershed from which you were drawing your water—for use by DLNR, DOFAW, whoever is doing work in maintaining and protecting our forests. This is somewhat of a finite resource. If we don't take care of our forests, we could lose the water, and another side small issue—well, it's not small, but the State had said it, our Mayor here has pointed out, that our waste disposal systems are potentially, especially in places like Hilo or Kailua-Kona where the population is bigger, are potentially threatening to contaminate our aquifers with bacteria. And, so that, the question is how do we remedy that? The cost of remedying that to get people to go from cesspools to septic or a new system are extremely high, and I would venture to say many people won't be able to afford to do that or even care to do it. This money or ecosystem service fee could, in effect, pay or help pay for those remediations that will not in the long run, I don't see a stopping making babies. There's going to be more and more people, and the contamination will get heavier. It needs to be addressed, and so I'm laying this on you. It's not your, it's not part of your plan, I know, but I'm, I'm very serious. This is, we need to start considering this all the way across. Thank you. FUKE: Can I respond? Yeah, I think that Commissioner Replogle brings up a very, you know, good point. It's a point, however, I think that needs to be addressed legislatively on a State-wide basis because when you're talking about water resource, you know, it applies all over, and the State Commission of Water Resource Management, they issue water well permits for the whole State and not only peculiar to the Island of Hawaii. It's just like the Geothermal Asset Fund, right? You know, you're talking about, because you know you kind of an impact, maybe not to the neighbors, but just the whole overall resource, and how do you kind of like recycle the benefits derived from harvesting that resource and putting it back, you know? Like you mentioned ecologically, you know, how do you do that? I think the concept is good. If it'sat any rate, I still think it's something that requires legislative action. All I can say at this point in time is that please understand the amount of draw that this project will take. It's like infinitesimally small. But, I would, you know, kind of recommend and probably be next to your side if in talking with the necessary legislators to see like please consider that. REPLOGLE: Thank you, and I realize it's not you or your doing, but it most definitely needs to be addressed. CLARKSON: I would also like to point out that I just asked our Corporation Counsel whether we as a Planning Commission have any authority to impose royalties in protection of the public trust, and she didn't know without—wait, excuse, me—without further legal research. But, it kind of surprises me that there has been no Statewide program of requiring royalties for the extraction of public water for private profit, and it just, I mean, I guess apparently it's up to us. If not, I don't understand why the Water Commission isn't doing it. FUKE: You know, like from my small knowledge of like the water resource situation, I know that the State exercises control over your surface water and how that water is being shared, you EXHIBIT B 10 know, by previous users and all that, but as far as like groundwater whether there was any controls exercised by the State, like your counsel, I don't know either. CLARKSON: Thank you, and you have read the Planning Director's Background Report and Recommendations? FUKE: Yes, we have. CLARKSON: Okay, and do you have any questions or comments about those? FUKE: No, they have been reviewed with the Applicant, and they found them to be acceptable and reasonable. CLARKSON: Okay, thank you. You both may be seated. At this time, we're going to have public testimony. We have one person who is signed up for two out of the three Piilani Partners applications. Cory, would you just address all of them in this, in this testimony, please? Would you raise your right hand? Do you swear or affirm to tell the truth on this matter before the Planning Commission today? HARDEN: Yes. CLARKSON: Please proceed or introduce yourself and where you live and who you represent and proceed, please. HARDEN: Yeah, good morning, Cory Harden speaking for myself. First, I want to thank you all for your volunteer service. I have a lot of concerns about this project, and I'm requesting that you take certain actions. One is to require a professional written report on how much water will be harvested and the impact on groundwater. In the Kauai Springs water bottle decision in 2014, the court said, "[A] lack of information from the applicant is exactly the reason an agency is empowered to deny a proposed use of a public trust resource." And, the court also said government agencies have "duties under the public trust independent of the permit requirements." On today's application, the State Office of Planning said, "Where public trust resources are used for economic gain" the court decision requires "the county authorities to give the permit application a higher level of scrutiny, and places a higher burden on the applicant to justify the use of the public trust resources." I'm kind of horrified to hear that the Water Commission does not consider the public trust issue. I mean, who is supposed to do it? You guys with no backgroundI mean, this is nuts. We're talking about water. You can't live without water. Also, if this is approved, I would think it would set a precedence `cause other people are going to come in and say hey you gave these guys a permit, how come we can't get one. I'm also a little concerned to hear Tom Nance say if they drill too deep, they're going to hit salt water if I understand correctly. I'm not a hydrologist. So, what if they go too deep, hit salt water, and it contaminates the fresh water. EXHIBIT B 11 Okay, on number two, I'm dropping that after reading the folder. I see there was a previous action on the site and probably no endangered species left. Number three, I'm dropping that `cause I see in the folder there was an environmental site assessment. Number four, I am still concerned about the noise impacts. You're going to have booster pumps, trucks, maybe other industrial noise next to tranquil Wailoa Park. Number five, I am still concerned about building in the tsunami zone. With climate change, the tidal wave zones are moving further inland. And, that I don't think it's a [inaudible] new building in a tsunami zone. Also, I hope you folks consider the general environmental impacts of water bottling. There's a lot of wastewater produced. Much of it will be contaminated, and it can't be reused. It takes, in the United States, it takes 50 million barrels of oil a year to pump and process and transport and refrigerate bottled water. Then, there's all the waste from the plastic bottles. We all know about the Great Pacific Garbage Patch and all the plastic on our beaches, South Point, everywhere. We don't need more of that. And, also, there's—number seven is impacts of worldwide privatization of water. You end up with rich people can afford to get good municipal water, but poor people have to buy bottled water or travel to spigots. Even on Hawaii Island we have to do that. But, my biggest concern, I'm glad that you folks are bringing it up, this, the public trust resource issue and who is going to do it? If the buck doesn't stop here, where is it going to stop? Thank you. CLARKSON: Did anybody have questions for the testifier? If not, thank you. There being no other members of the public signed up to testify, at this point, I'd like a motion for closure of public testimony. IKEDA: Move to close public testimony. DELA CRUZ: Second. CLARKSON: All those in favor? COMMISSIONERS: Aye. CLARKSON: Opposed? Motion carried. Public testimony is closed. So, is there any further discussion on this? IKEDA: Before we start, can I ask the Applicant a question? Mr. Fuke a question? EXHIBIT B 12 CLARKSON: Absolutely. IKEDA: Mr. Fuke, is everything hinged on the approving the water production? If you disapprove the water production, it seems like the other two doesn't make any sense at all. Is that correct? FUKE: You mean, the—you're talking about the other two permits? The other two, well, the other two requests are kind of related to the SMA request, which is the water well system. You know, for them to be able to, you know, do it fully operational, they need to have the Industrial zone, you know, existing zoning. There were conditions regarding construction completion by "x" period of time, so they need to have that provision amended, you know, to give that extra time. The other one was, relates to the existing SMA which was peculiar to what Suisan was going to do, but that's no longer, you know, like in play right now. CLARKSON: Any further questions? Okay, I'd just like to point out two things. I'm still concerned about the public trust aspect. II personally think that there should be some kind of tax, royalty, or something. I know this is a very miniscule use of a very large resource, but the time to protect that resource and have the public get some interest from it is not when it's almost gone but when it's first started to be used. The other concern I have is over noise. We haven't talked about that a lot, but this is an industrial area surrounded by Resort zoning which would generally need a little bit of peace and quiet and tranquility to be used for their intended use, and I would like to, if there is a motion on this, I'm going to make a motion that the decibel limits be reduced from the, I believe it's 70 dBa for Industrial to a Residential area noise level. So, with my two cents being chipped in there, is there a motion for action? IKEDA: I'd like to make a motion. I move that the Commission enter into an 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. DELA CRUZ: Second. CLARKSON: It's been moved and seconded that we go into executive session to discuss this issue with our attorney. All those in favor? COMMISSIONERS: Aye. CLARKSON: Opposed? Okay, we'll—all members of the public and staff, please. We'll be recessing for executive session for just a few minutes I hope, and we'll let you know when you can come back in. At 10: 00 a.m., it was moved by Commissioner Ikeda and seconded by Commissioner Dela Cruz 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, EXHIBIT B 13 pursuant to Hawai `i Revised Statutes Section 92-5. A voice vote was taken of all Commissioners present, and motion carried with five aye votes. At 10: 02 a. m., the Commission went into executive session. At 10:10 a. m., it was moved by Commissioner Replogle that the Commission go out of executive session. A voice vote was taken of all Commissioners present, and motion carried with five aye votes. The hearing reconvened for regular session at 10:12 a.m. CLARKSON: Okay, we're back in regular session, and the basic reason for the executive session was to discuss our legal rights and responsibilities and, in particular toward this public trust doctrine. And, also our legal ability to put financial conditions on the water withdrawal. So, at this time, the Chair would ask for a motion for action on, or continuance to further study this matter, or give our legal counsel an opportunity to study it. IKEDA: I move that we move for a continuance on this project. DELA CRUZ: Second. CLARKSON: It's been moved and seconded that this hearing be continued. Do we need to phrase it differently? HALL: Oh, no just to the next available, to the next scheduled meeting. CLARKSON: Correct. To the next scheduled meeting. Christian, would you poll the Commission? KAY: Yes, thank you, Mr. Chair. Commissioner Ikeda? IKEDA: Aye. KAY: Commissioner Replogle? REPLOGLE: Aye. KAY: Commissioner Aguinaldo? AGUINALDO: Aye. KAY: Commissioner Dela Cruz? DELA CRUZ: Aye. KAY: CommissionerI'm sorry—Chair Clarkson. CLARKSON: Aye. EXHIBIT B 14 KAY: Thank you, Mr. Chair. Motion carries, five, nothing for the continuance or deferral. CLARKSON: We'll see you next month. HALL: Wait, wait, so that's just for—we still have to do it for each one. Was your motion for all three? IKEDA: Yes. HALL: Okay. FUKE: I just wanted, Mr. Chairman, I just wanted some clarification. So, the motion, which was passed, was to continue all three items to the next Planning Commission meeting, and expressly for the purpose of determining the Commission's ability to impose any tax or whatever, royalty whatever, and is there like a residual issue on the public trust doctrine. And, the reason for my asking this question is largely because if there's a need for us to provide additional or supportive information, that can be done. As you probably know, you know, Tom Nance, who was here, testifying on behalf of the Applicant, too, he is a well-known, well- respected hydrologist who was actually retained by the County to assist in their efforts on the Keauhou aquifer system in the Kona system, so he is eminently qualified in that. So, if there's any question as far as what he represented, you wanted to have it in writing or whatever have you, that's the reason for my asking, so. CLARKSON: Yeah, I would suggest that any information would be welcome and that it should be forwarded to Corporation Counsel because she's going to be doing the legal review. Thank you. The discussion ended at 10:15 a.m. Secretary's Note: During the next hearing for Cellco Partnership dba Verizon Wireless (USE 18-000076, Item No. 4), Ms. Hata-Finley, in a discussion with Ms. Jackson, confirmed that the Commission's September agenda had already been approved to be published and that publication deadlines could not be met if the Piilani Partners applications were moved to the September agenda or if an addendum to the September agenda was filed. Therefore, Ms. Jackson suggested to the Commission that the Piilani Partners applications and the Cellco Partnership application be moved to the October Commission meeting. Chair Clarkson asked Ms. Jackson to notify Piilani Partners that their applications needed to be moved to October. Subsequently, at 10:25 a.m., during the administrative matters/announcements portion of the meeting, Ms. Hall informed the Commission that a request had been made by the Applicant's representative, Sidney Fuke, that the motion for continuance regarding Piilani Partners be clarified. Ms. Hall stated that Commissioner Ikeda's motion should be rephrased since it was confirmed that the applications could not be moved to the Commission's September meeting. EXHIBIT B 15 Commissioner Ikeda withdrew his motion to continue the hearing to the next scheduled meeting, and made a new motion that the hearing be continued to the next available Commission meeting. Commissioner Dela Cruz seconded the motion, and the motion was unanimously approved with a roll call of five aye votes (Ikeda, Dela Cruz, Aguinaldo, Replogle, and Clarkson). Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT B 16