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HomeMy WebLinkAbout2018-12-10 Leeward Exh A (AMEND REZ 17-220) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT DECEMBER 10, 2018 A regularly advertised hearing on the application of T & M PROPERTIES, LLC (FORMERLY SAMSON, LLC) (REZ 17-000220) was called to order at 9:32 a.m. in the West Hawai‘i Civic Center, Community Center, Building G, 74-5044 Ane Keohokālole Highway, Kailua-Kona, Hawai‘i, with Chairman Keith F. Unger presiding. COMMISSIONERS PRESENT: Keith F. Unger, Nancy Carr Smith, Scott Church, Perry Kealoha, Sonny Shimaoka and Michael Vitousek ABSENT AND EXCUSED: Faye Yates ALSO PRESENT: Ronald Kim, Esq. (Counsel for the Commission), Michael Yee (Planning Director), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner) and Noriko Sauer (Commission Secretary) And seven people from the public in attendance. APPLICANT: T & M PROPERTIES, LLC (FORMERLY SAMSON, LLC) (REZ 17-000220) Request to amend Condition C (Complete Construction), Condition D (Dedicate Road Widening Strip), Condition N (Fair Share Contribution), and add a new condition to allow an administrative time extension, of 1) Ordinance No. 09-049, which amended Ordinance No. 92-036, which reclassified 5.52 acres of land from Unplanned (U) and Double-Family Residential-3,750 square feet (RD-3.75) to Multiple-Family Residential - 2,500 square feet (RM-2.5) and Village Commercial-7,500 square feet (CV-7.5) and 2) Ordinance No. 09-050, which amended Ordinance No. 86-049, which reclassified 1.04 acres of land from Multiple Family Residential-2,000 square feet (RM-2) to Village Commercial-7,500 square feet (CV-7.5). The subject property is located along the north and east side of Hualālai Road, th,th th northwest of the Aloha Kona Subdivision, Hienaloli 4 5and 6, North Kona, Hawai‘i, TMK: (3) 7-5-010:013 (formerly 7-5-023:064 and 067). UNGER: The first agenda item, Applicant T & M Properties, LLC, formerly Samson, LLC, REZ 17-000220. Request to amend Condition C, Complete Construction; Condition D, Dedicate Road Widening Strip; Condition N, Fair Share Contribution; and add a new condition to allow an administrative time extension of: 1) Ordinance No. 09-049, which amended Ordinance No. 92-036, which reclassified 5.52 acres of land from Unplanned and Double-Family Residential-3,750 square feet, RD-3.75, to Multiple-Family Residential-2,500 square feet, RM-2.5, and Village Commercial-7,500 square feet, CV-7.5; and 2) Ordinance No. 09-050, which amended Ordinance No. 86-049, which reclassified 1.04 acres of land from Multiple-Family Residential-2,000 square feet, RM-2, to Village Commercial-7,500 square feet, CV-7.5. The subject property is located along the north and east side of Hualālai Road, northwest of the Aloha Kona Subdivision, 1 EXHIBIT A th,th th Hienaloli 4 5and 6, North Kona, Hawai‘i, TMK (3) 7-5-010:Parcel 013, formerly 7-5-023:Parcel 064 and 067. At this time we’ll have County make their presentation. JACKSON: Thank you, Chair Unger. Good morning, everybody. So, I will be brief in the subject matter since Chair Unger just had a mouthful of introduction on this ordinance. This is a request to amend two ordinances by T & M Properties, LLC: The first ordinance is No. 09-049, and 09-050. The subject property is located in the North Kona District. You can see the property with the red dot on top of it. And, just for orientation, we have Queen Ka‘ahumanu Highway running in a north-south direction in the middle of the slide, you have Kuakini Highway running closer to the shore, and then Hualālai Road coming off of Kuakini heading mauka. The property is located just, just a north of a bend of Hualālai Road. You can also see the Aloha Kona Subdivision just east of the subject property. So the property is dual-zoned, with about 3.227 acres zoned Multi-Family Residential-2.5 and about 3.24 acres zoned CV-7.5. The property is subject to two zoning ordinances because it consisted of four separate parcels when it received its current zoning in 1986 and 1992. These ordinances have been amended over the years, with the most recent amendment creating Ordinance 09-49 and 09-50 in 2009. These are the two ordinances that the applicant is now requesting to amend. So the applicant is requesting to consolidate those ordinances into one ordinance to cover the entire property. And if you do a side-by-side comparison of the ordinances, they have identical conditions; so Condition B says the exact same thing in Ordinance 09-49 as it does in 09-50. So that’s the reason the applicant is requesting to consolidate so that one ordinance covers the entire property, which would cover the entire project. The second request is to amend Condition C of the ordinances to allow a five-year time extension to complete construction of the project. So the project was supposed to have been completed five years from 2009, which would have been 2014, and I believe they received an administrative time extension, and so now they are requesting another five-year time extension to complete construction. They are also requesting a new condition be added to allow an administrative time extension so that they can get an additional five years, should the first five-year time extension not be enough time to construct the project. The fourth request is to amend Condition D of the ordinances to delay dedication of the future road widening strip to prior to occupancy of the project. The current Condition D says that the road widening strip is to be subdivided and dedicated within two years of the 09 ordinances, so it was supposed to have been done in 2011. And this is somewhat of an old ordinance; we’ve changed the way we do things now. What the Planning Department currently recommends in these Change of Zone ordinances is to have the road improvements be done – the pavement widening, drainage improvements, curb, gutter, sidewalk – and then dedicate the widening strip with those improvements prior to occupancy of the project, rather than arbitrary to your timeline. And then lastly, the applicant is requesting to amend Condition N of the ordinances to change the due date of the fair share contribution to be due and payable prior to Final Plan Approval. And this is another change that would be consistent with our current practice of how we condition rezone ordinances. Current Condition N says that the fair share fee 2 EXHIBIT A is due and payable five years from the effective date of those ordinances, so that would have been 2014. And, again, rather than an arbitrary timeline, the way we usually condition ordinances now is to make the fair share fee payable prior to Final Subdivision Approval, or in this case since they are doing a multi-family residential development, it would be prior to Final Plan Approval. This is the applicant’s conceptual site plan. You can see Hualālai Road. You can see the curve here extending east. The access would be on the straight-way portion of Hualālai Road. And you can see, these yellow buildings are the seven multi-family structures that they are proposing. You see the parking areas and the roads in gray. Over here is a community park and pavilion, and a pool and pavilion, and then a community building. Also, on the site plan you can see the Kuakini Wall and another historic site and preservation buffer located in this area here. The applicant is currently proposing a little over 100 multi-family residential units geared towards senior independent living. The County zoning of the property, as I mentioned before, is CV-7.5, which is shown in the lighter pink, and RM-2.5, which is shown in the red. Zoning around the property is fairly mixed with Residential; you have Multi-Family Residential to the north, you have the Aloha Kona Subdivision to the east, which is zoned RS-10, there is a property to the south also zoned RM-2.5, which is currently vacant, and then to the west are the Resort zoning. The General Plan designation for the property is Medium-Density Urban, which is shown in the orange, and that allows a density of up to 35 residential units per acre. This is an aerial view of the property. Again, you see Hualālai Road. You have, the property to the north is the Regency at Hualālai care home. You have a mix of commercial and resort uses to the west, and then the Aloha Kona Subdivision to the east. This is a view of Hualālai Road looking east. The property would be on the left side here. And a view looking west. The property would be on the right side. The driveway would be just a little bit off of this picture before the fire hydrant. And this is a view of the property at the current access looking north. The Planning Director is recommending a favorable recommendation be sent to the County Council to consolidate the ordinances into one and to amend Conditions C, D and N. And since you received your background and recommendation reports, we have one email that th was sent as testimony dated November 25 from Mark Van Pernis. And that concludes my presentation. UNGER: Great, thank you. Commissioners, any questions? \[None.\] Maija, can you go back to the slide showing the highway frontage? Yeah, one, yeah, right there. So the parcel that’s being developed is on the right, and the parcel, and so on the other side, in the information package 3 EXHIBIT A somehow there is a nexus between that parcel and that parcel depending on the improvements to the highway frontage. Is, can you explain that, or is that true? JACKSON: I believe two ordinances both have conditions regarding providing additional right-of-way on Hualālai Road in order to accommodate a left-turn pocket. Because there is a curve there, Department of Public Works wants to see a left-turn pocket for people moving into and out of both of those properties. So, currently, Hualālai Road I think is 50 feet wide, as far as the right-of-way, and both properties would be required to give a five-foot road widening strip. UNGER: Is one depended on the other? In other words, can the property owner on the left not complete their project unless the property on the right completes their project? JACKSON: No, they are not depended on the other; the road improvements would still need to go in once the T & M property is developed, and then in the future when the next property comes in, they would have to give additional right-of-way for pavement widening. UNGER: Okay. And, to clarify, when you say it “turn-off pocket,” that’s, that’s, in other words when you are driving along, your single lane coming up, and you can pull over and traffic can pass, you can pull over and then take you left— JACKSON: To make a left turn— UNGER: —into the project. JACKSON: Yes, yes. UNGER: Okay. So, according to the documentation here, and the recommended changes, that may or may not happen depending on circumstances, which may or may not be under the control of the applicant. Is that correct? JACKSON: My understanding is that Public Works did have some concerns because the Kuakini Wall does intersect the right-of-way, and so Public Works felt that if for some reason SHPD required preservation of that portion of Kuakini Wall, they wouldn’t be able to breach it, then, of course, they would have to come up with another solution for the left-turn pocket improvements. UNGER: Okay, okay, well, I’ll continue the question with the applicant just to get a status report because that seems pretty important at this point to not know or to know. CARR SMITH: Chair Unger? That prompts a question for me, because I’m pretty sure that the parcel on the left is a condominium complex that is being marketed right now. I don’t believe they’ve started construction yet. So, do you know what their plans are for access off of that road? JACKSON: I don’t know exactly where they are proposing access, I haven’t seen that, but— 4 EXHIBIT A CARR SMITH: But you guys look at that stuff, right? JACKSON: Yeah— CARR SMITH: Yeah. JACKSON: —and I would think, normally Public Works asks for accesses to be across from one another and not off-set, because that way, if you install a left-turn pocket for both sides, it aligns. So I would guess that that’s where their access is going to be. CARR SMITH: Okay, thank you. JACKSON: Uh huh. SHIMAOKA: The only question that comes to my mind is when you said it’s consistent with the previous practices, as far as extensions, is there any limit to the amount of extensions that a property owner can apply for? Because it seems like this is kind of long. JACKSON: There is not a limit to the number that they can apply for; it’s up to the Commission whether they feel like that’s appropriate or not. And so— SHIMAOKA: Because I’m going off of Nancy’s question about if you have other developments, would they hinder their development? JACKSON: If, no, one is not depended on the other. SHIMAOKA: Okay. JACKSON: If T & M were to for whatever reason not get the time extension, the property across the way would still need to provide a five-foot road widening strip and they would need to put in a left-turn pocket— SHIMAOKA: okay, that all stays in place— JACKSON: Yes. SHIMAOKA: —with the surrounding developments, they although seem like, you said the accesses will be right across from each other, correct? JACKSON: I’m assuming that’s what Public Works is going to require because that’s what they typically require. SHIMAOKA: Okay. UNGER: And, just to clarify, we are a recommendation body to the County Council. Is that correct? 5 EXHIBIT A JACKSON: Yes. UNGER: Okay. Okay. Questions? CARR SMITH: Yeah, I was going to save some of this for later, but just, so, the permit expired in 2004, did you say? JACKSON: The— CARR SMITH: And then you said that there may have been a five-year extension? JACKSON: Two thousand— CARR SMITH: Sorry, I don’t— JACKSON: Two thousand fourteen, I’m sorry. UNGER: Two thousand fourteen, right. JACKSON: Yes. CARR SMITH: And then there may have been another five-year extension or there was not, and we are at that point now? JACKSON: There was not, I’m sorry, there was not. So the zoning has been somewhat in limbo since 2014. CARR SMITH: Okay. And what you guys’— JACKSON: Which is why they are coming in now. CARR SMITH: —what is Planning Department’s normal procedure for dealing with that? JACKSON: We typically don’t track every zoning ordinance and their time frames just because we don’t have the resources to do that. So typically what happens is if an ordinance goes stale like this one did, when a developer is ready to develop, they will come and we say, well, we won’t issue any approvals until you refresh your ordinance with the Planning Commission and County Council. CARR SMITH: Okay. Otherwise, there is no consequence for them. JACKSON: No. CARR SMITH: Okay. 6 EXHIBIT A VITOUSEK: Chair? I guess, so this is a new developer, correct? JACKSON: Yes. VITOUSEK: On a new project? JACKSON: Yes. VITOUSEK: But using the pre-existing expired ordinance to renew? JACKSON: They’re, it’s not expired, but they are using a stale ordinance, yes. VITOUSEK: So, I mean, stale just means that they’ve missed their deadlines? JACKSON: Yes. And so it’s likely that when they purchased the project, or when they purchased the property, they knew that there was a stale ordinance attached to it – actually, maybe the applicant can expand on that – because I think when they purchased the property in 2011, the ordinance was still fresh at that time, and then it lapsed. VITOUSEK: Is “stale” a technical term or is that just— JACKSON: That’s my term. VITOUSEK: Okay. \[Laughter.\] JACKSON: That’s a term we use in Planning. VITOUSEK: So, basically, it’s not clear, it’s not a clear idea what happens once deadlines have been missed. Is that right? Unclear— JACKSON: When deadlines are missed and we become aware of it in Planning, we can decide whether to let the ordinance sit until a new developer comes in and wants to refresh the ordinance through Council or we can decide if the ordinance is out of alignment with our current plans whether it should be reverted to its original zoning. VITOUSEK: Got you. JACKSON: Those are the options that the Planning Department has. VITOUSEK: And you guys thought that this was a project where you think it will align well with the use— JACKSON: The zoning is consistent with all of our plans. 7 EXHIBIT A VITOUSEK: Yeah, okay. CHURCH: Does the Plan Approval – is there a subsequent Plan Approval, if this is approved? JACKSON: Yes. CHURCH: Okay, so it has be resubmitted again. JACKSON: Yes, they need a new Plan Approval because Plan Approvals are typically only good for two years. UNGER: Great, thank you. If there’s no further questions, we can call the applicant up. Please raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? FUKE: I do. \[Mr. Cook affirmed inaudibly.\] UNGER: Please state your name and area of residence. FUKE: Sure. Good morning, Mr. Chairman, Members of the Commission. My name is Sidney Fuke. I’m a planning consultant. My residence is in Hilo, Hawai‘i. COOK: Good morning. My name is Brian Cook. I’m a local resident here in Kona. I’ve been here for 30 years. UNGER: Great, thank you. You may proceed with your presentation. FUKE: Thank you very much, Mr. Chairman. I think the questions that the Commissioners raised were very good one and so maybe I would kind of like to begin by kind of like touching on some of these questions, and then fueling further, if, questions, if the Commissioners have them. I think that one of the questions relate to like why we have conditions relating to construction timetable. You know, I’ve got to, part of the reason why is that in years past when rezoning ordinances were approved, there were no construction timetable; they were just kind of like if the zoning was appropriate, then fine, you know, then you just, the properties were appropriately zoned for residential or commercial or whatever have you. Then over time what happened was that people, well, planners or even the general public were looking at the numerical situation where like we have like 1,000 acres of RS-10 zone properties that’s undeveloped, so why is there a need to rezone another land and then add to this inventory when you have like 1,000 acres of land that’s, that’s undeveloped and then capable of being developed. So, that kind of like started the thought process in terms of maybe there ought to be some sort of like a time constrain just to make sure that from a numerical standpoint we were kind like in a ball game. And then there were like other situations where the plans changed, you know. One classic example is like in the Keaukaha area in Hilo; the General Plan called for Resort, you had properties that were zoned for Resort, and then the General Plan was subsequently changed to eliminate some of the Resort designation in certain portions of Hilo, so now you then look at the zoning ordinance, say, for 8 EXHIBIT A example like this, and then the zoning ordinance now we’re saying that, oh, okay, it’s zoned Resort but the General Plan has changed, so do you still want to continue that pattern. So the idea is by having the time constraints it gives the decision-makers the opportunity to kind of like re-look at the whole situation and then kind of either say no to the time extension or like yes subject to additional conditions. Then again, plans and policies may change, too. So, if you look at like all of the other previously approved or more recently approved reasons for granting time extension, the reasons they use is like whether the granting of the time extension would not be contrary to the General Plan or the Zoning Code, and just like I think what the staff kind of pointed out, the General Plan and all that stuff. So when you look at it from, and the other reason is that whether the granting of the time extension would not be contrary to the original reasons for the granting of the Change of Zone. So, you know, you go back again, you look at 2009, or when the original zoning was, and you look at today, and then you ask yourself like if you have to kind of redo the whole zoning, rezoning ordinance like today, you know, would you still arrive at the same conclusion. And, the argument is that probably yes because the General Plan hasn’t changed, so on and so forth. I think there are two other things that need to be mindful; since the adoption of the original zone change, there were two significant things that happened here in the Kona area. One was adoption of the Kona Community Development Plan, and the second was adoption of the concurrency provision, which required you make sure you have enough water, your sewer system, your sirens, you know, your civil defense system. They are all part and parcel of the ordinance. So any time you go through a time extension, then these are the things that if you can’t comply with, because they are like how, they are the lens we look at all time extensions today, so if the conclusion is that, okay, you can fulfill that, then it’s justification for the approval; if you can’t, then it’s justification for the denial. In this particular situation, you know, we believe like all of the reasons for the original approval and relative to the Kona CDP and the concurrency provision, they’ve all been fulfilled or they can be fulfilled. What the, for the most part, what the applicant is requesting, as noted by the staff, a lot of these changes, a lot of these proposed changes are like, number one, they are like more editorial in nature, and secondly, they would be like an upgrade of the conditions of the former conditions of approval. There were additional conditions that were imposed, you know, because of the need to upgrade these conditions, and I think that’s totally appropriate, and the upgrade came in the form of like the wastewater requirement, if you look at all the underscored item, what the staff is suggesting, additional requirements relating to archaeological preservation – I think I’ve said enough, what else now? Oh, there was a, secondly, moving on for the reasons for the extension, then, you know, the question about the access. So, the development on the south side of Hualālai Road, you know, the property is currently zoned Multiple-Family and it’s allowed for a condominium project as well, as well as this project over here. Public Works understandably has the concern about like, you know, Hualālai Road because, you know, you, right below this on the makai side, you know, you have the bend, so they just wanted to make sure that the intersections for both projects on the north and the south side of Hualālai Road kind of like intersect. So there are conditions associated with this project that require like a left-turn lane, you know, so it doesn’t impede with the mauka-bound traffic. And, likewise, for the property on the south side there’s like a similar 9 EXHIBIT A condition. So it requires like that to be lined up. Now, where it will be lined up is a function of essentially like who starts first, because construction plans haven’t started, you know, haven’t been approved yet by the County. So, if T & M in this situation here – there is a requirement to develop your construction plans, curb, gutter, sidewalk, your left-turn storage lane, that’s got to be approved by Department of Public Works. Well, they set the parameter, they set this parameter; so if and when the developer on the south side elects to develop his property, his or her property, then they would have to respect what’s there on the ground and then adjust their own driveway. The final question I think dealt with maybe like, you know, the parcel history, you know, Samson, LLC and now T & M Properties. And so, to that I’d like to defer Brian to respond to that. COOK: Yeah, thank you, Sid. I’m a local developer here in Kona, and Tommy and Marie Thompson, that’s T & M Properties, we met Marie about five years ago going to our church, and their little company had co-ventured with a developer from Maui back in 2004, and they formed this venture and in that venture T & M Properties was basically a silent partner. And they were a financial partner; they invested a million and a half dollars to start the project. T & M Properties also co-signed a loan with Pacific Rim Bank at that time for a loan of, I think, 2.9 million dollars. And the development was started. They laid out a condominium project, a multi-family project, of approximately 139 units. That was in 2008, 9. The developer from Maui got into financial difficulty with the downturn in the market, and by 2011 T & M Properties had to, because they co-signed the loan, they had to take over the loan with Pacific Rim Bank, and take over the property, so the name changed from Samson, LLC. When they took over the project, they had to pay the bank down additional 400,000 dollars on the loan. So they have, since April 2011, they’ve been paying 8,500 dollars a month interest payments on the loan. Tommy Thompson passed away about a year and a half ago suddenly. He was in his office, his wife said, they moved from Kona to Arizona, he was in his office at 7:30 at night and she heard a sound, she went in, and he basically was rushed to the hospital, he died two and half hours later, had massive brain bleed. So, Marie and her little company now they are paying 8,500 dollars a month. When I had met them in, about four, five years ago, they asked if I could help with the property. So we laid out a different concept, independent living for seniors, 104 units, right next to the Regency at Hualālai, and so that’s what we’ve been working toward. We got the traffic impact analysis report back in 2016, and we retained Sidney Fuke as planning consultant. And then we had the issues with the community development plan \[inaudible\] the community development plan and try to get the zoning \[inaudible\] kind of where we are at right now. Thank you. UNGER: Thank you. Continue? FUKE: I guess I just, two other points like what Brian had indicated was like, you know, T & M Properties, you know, they had an interest, you know, like with Samson Group, but they didn’t really necessarily like sit still; they’ve, if you look at the report that we prepared, they fulfilled a portion of their affordable housing obligation, as well as paid a portion of their parks fee. So it’s not like, you know, this is totally zero, they haven’t done anything on the ground. And, as a matter of fact, they also had the road right-of-way subdivided, you know, hired a surveyor, they 10 EXHIBIT A had the area subdivided. But it hasn’t been conveyed yet because it makes more sense, as the staff had indicated, to convey that portion once, you know, all of the related improvements along the Hualālai Road are done. So that will be done. UNGER: Great, thank you. Commissioners, any questions? SHIMAOKA: Yeah, I’ve got a question. Is it totally now for seniors? Is that what I heard? The development, to provide for senior housing? COOK: Well, the preliminary concept I had Michael Riehm come up with was independent living for seniors, and that’s what we had laid out and that’s what the preliminary plan was. Independent living right next to the Regency at Hualālai is, kind of makes sense to me. CHURCH: Yeah, sounds like a pretty good project next to the Regency, and right around the corner there is also some low-income senior housing there, I know. My only concern is I know people zip down that road pretty darn fast, and so, I’m sure it’s going to be looked at, but the traffic arrangement there is pretty critical. People go up and down that road and swing around those corners and they’re moving pretty fast, so, I’m sure you are aware of that and that’s been taken into account, but, those turn lanes are going to be important. UNGER: Commissioner Carr Smith. CARR SMITH: Could you explain to us what happens to the Kuakini Wall as it reaches that driveway and the amenity centers there across the street? FUKE: So the Kuakini Wall is probably like about like midway, you know, within the property. And so I think the initial discussion dealt like with what do you do with the Kuakini Wall as it relates to the gaining entrance to the property off of Hualālai. And so what Public Works really wants is like I guess, you know, in response also to Commissioner Church’s question, is that they want the driveway to be situated furthest from the bend and so on the straight way, and so the further mauka you go then at some point in time, you know, you are going to penetrate the portion of the Kuakini Wall. So the proposed entrance is immediately makai of the Kuakini Wall, and so that’s going to have to be stabilized and, you know, retrofitted. The SHPD also allowed for one breach of the Kuakini Wall within the property, so that’s how they get access on the mauka end of the property. So that’s the breach, as well as the adjacent to the Kuakini Wall is also like a burial preserve that was also part and parcel of an approved preservation plan, so that’s going to have to be implemented as well. CARR SMITH: So the breach is where the amenity center is? The breach is able to be that large? FUKE: The breach is, you know, the entrance is, you can see, where Hualālai Road is, so, apparently, like the Kuakini Wall actually begins like, you know, just immediately mauka of where the proposed entrance is, and then it kind of like continues north, and then you can see that gray, blueish gray line that runs north-south in the green area— 11 EXHIBIT A CARR SMITH: Yeah. FUKE: So that’s the Kuakini Wall. And immediately mauka— CARR SMITH: That’s truly where it is? FUKE: Correct. And then on the makai side is a burial preserve. CARR SMITH: And then on the amenity side the Wall gets breached. Is that— FUKE: No, the only breach allowed would be to allow for the driveway to go from mauka to makai. CARR SMITH: I’m sorry, I don’t understand where the Wall is on the amenity side. \[Mr. Fuke walked up to the presentation screen and pointed to the mauka side of the entrance driveway on the applicant’s conceptual site plan.\] CARR SMITH: Okay, all right. So it’s still visible on the amenity side of the road? FUKE: Are you talking about on the south side of the property— CARR SMITH: Yes. FUKE: —where the tennis courts are? CARR SMITH: Yes. FUKE: I don’t think it’s clearly shown over here, but it’s going to have to be kind of like, well, it’s going to be preserved, so they are going to have to do something in accordance with the preservation plan to preserve that portion to make it much more clear and visible. CARR SMITH: So it gets preserved where the amenity is so the only breach is where the road is— FUKE: Correct, yeah. CARR SMITH: —goes across. Thank you. VITOUSEK: My question is in regards to the SHPD letter from 2009 where they identified additional sites that were unrecorded. FUKE: Apparently there were. And so, Commissioner Vitousek, if you look at the staff proposed condition, they address that because they are going to require like that component to be 12 EXHIBIT A further assessed and submitted to the SHPD. That’s kind of reflected in proposed Condition O on Page 3, the bottom. VITOUSEK: And my question is what does that exactly mean, that this sites will be assessed? FUKE: Well, I have to defer that to the staff in terms of like, that’s their language, so. VITOUSEK: Sure. JACKSON: There is a letter from SHPD from 2009, and in that letter they say – it’s in your report, let’s see, just to kind of paraphrase, oh, you have the letter. VITOUSEK: Yeah. JACKSON: So, they are basically saying that Site 13673 has been identified, but there are some additional features that they would like to be studied and assessed and possibly inventoried more. So the intent of this condition is prior to any construction beginning again or any ground disturbance or Final Plan Approval, whichever occurs first, the applicant needs to do an archaeological inventory survey of that area around Site 13673 to accurately capture inventory, identify all of those possible features that were found during that previous site visit. And then if the preservation plan needs to be updated as a result of that, then they would have to update their preservation plan. VITOUSEK: Okay, so, is the language in there that they are required to do an archaeological inventory survey? JACKSON: The condition doesn’t actually say archaeological inventory survey— VITOUSEK: I think it should. JACKSON: Okay. VITOUSEK: And, you know, because otherwise, you know, just having it assessed isn’t like a concrete and specific requirement, and I think requiring an archaeological inventory survey to record the previously unrecorded properties is a concrete and specific requirement that everybody would understand and be able to follow. JACKSON: Okay. I think the idea of leaving it general was to have them contact SHPD and to consult with SHPD on what the best inventory or survey method would be, but if the Commission thinks an AIS is appropriate, we can certainly condition that. UNGER: Thank you. I had some general observations and then some specific questions. This is an interesting application because it does call in to question our process. And I understand what you said and also what the County said as far as the application going stale, etcetera, etcetera, but this property was rezoned in 1993, the current applicant didn’t come on to scene till 2011. I understand that, there is no accountability, to a certain extent, going back to 1993, even 13 EXHIBIT A though that’s a long time to rezone a property anywhere, especially in Kona. And so it has since gone stale, come back active, gone, I think it went stale one time, using this term, and then Mr. Cook purchased the, you purchased the property in 20, or you are controlling the property— COOK: No, I’m just a friend as, I’m just helping them— UNGER: Okay, good, good— COOK: I’m just a friend trying to help them with the property— UNGER: —good to know. We’ll call, we’ll refer to the owner as the applicant. So the applicant has taken over since 2011, so they’ve been responsible since then. And I, so, understanding what you said, still, when you buy a property, the first thing you look at, you look at the ordinance, you look at the time extension, and in 2014 there, there is a deadline. And, and sitting on this Commission, I look at that as a deadline. I question to a certain extent what we are extending, because in 2014 this thing expired – let me finish, please \[Mr. Fuke was about to respond\] – this thing expired, and so I question, what are we extending? But I understand, you know, obviously we are extending these ordinances, etcetera, but I think the point is the applicant comes before the Planning Department, they negotiate in good faith, terms are set out, agreements are made based on those good-faith negotiations. And in 2014 the conditions weren’t met. And so, I think it’s just, for me, it’s understood that there is nothing anymore; there is no ordinance, there, basically, you start from scratch. And if this wasn’t even a hearing, I think the Planning Dep- everybody would just assume this is not happening, which is kind of where I’m at. So this is, to a certain extent, I’m thinking this is a great opportunity to push the reset button and go back in for rezoning, especially with all the variables that are on the table right now, with the question in regard to the turn-off lane, with the question, with the question in regards to, so we are proposing 104 units with only 50 water permits – and you can talk about that certainly – but you’ve got 28 committed, 22 that you could commit to but haven’t, and according to the Water Department, it would be tremendously expensive at this point to get another 54 commitments in order to do this project. So I’m looking at this, questioning if this is even going to happen. So, two specific questions, when the applicant purchased – and you may have answered it already – in 2011 when the applicant purchased the property, 2014 came, why didn’t they, why weren’t we here then talking about extensions at 2014? FUKE: To initially respond to the idea about like whether it’s stale or otherwise, I think that from my point of view it’s like the ordinance is in limbo. So whoever were to have purchased the property or whoever owns it right now, and they would want to apply for a building permit, you know, to do this or something that the zoning would allow it, the Planning Department would not be in the position to process it, you know, so they would go back and tell the applicant I’m sorry until this thing is formally amended, then, you know, you may have like an RM and a CV zoning but, you know, practically it’s like a, it’s like a hollow zoning; yeah, pretty much like what you are saying, it’s like, you know, you really, you have zoning but you don’t have zoning, so it’s like, like the roads in limbo, this is like a zoning in limbo. So, in other case the person would have to, or the landowner would have to apply for some modification of these conditions 14 EXHIBIT A or revoke and apply for a brand new ordinance, you know, whatever the case may be. So my earlier point was that whether you revoke it and start all over again, the very fact is that the under the existing ordinances any time a time extension is to be considered by this body or by the County Council, it requires, exactly like how you said, like a reset button; you have to look at all the applicable requirements – the concurrency code, the Kona CDP, the General Plan, so on and so forth. And this is like the reset opportunity right now. UNGER: So why didn’t you apply before the Commission in 2014? FUKE: Well, I was called by Mr. Cook only three years ago— UNGER: Okay, so— FUKE: —so I don’t have the answer. UNGER: Okay. COOK: Yeah, Mr. Thompson was not a developer; he was just an investor back in 2004 and relied on the \[inaudible\] Samson, LLC to develop the property. He was a silent partner. When they had to take over the property, and at that point they had put in a million and a half dollars in initial investment, they co-signed the loan, they put up another 400,000, and 2011, because the bank was calling the loan, and basically, he was not a developer, didn’t know what to do with the property, and a few years later when I met them, I offered to try to help them. And, so the property had just sat there. They were not developers, had no idea what to do with the property. They had just been paying 8,500 dollars a month on the loan, and hopefully, they could just sell the property, and so. UNGER: One more question, and I guess it’s part and parcel, one of the requirements to ask for an extension is reasons beyond your control, one of the conditions was, that you didn’t mention, but one of the conditions is just to submit an annual progress report, and according to the documentation this is the annual progress report that is supposed to take us back to 2009. And, at the very least, I would have expect an annual report just saying, hey, we are struggling, we’ve got some issues, we are still interested. There has been nothing, no correspondence, and that’s not a good, that’s not a show of good faith. FUKE: So, that’s why when I came on board and looked at the conditions, and I had to make sure that all of these conditions were addressed one way or the other. And kind of like on the, do the annual report like on the trying to recount like whatever happened over the years, so during the course of the research, and that’s when I found out that, yes, they did comply with a portion of the affordable housing obligation, a portion of the park and recreation fee, so on and so forth. But, you are right, Mr. Chair, I think like it should have been done like on a systematic basis, but it wasn’t done. UNGER: Thank you. Commissioner Kealoha. 15 EXHIBIT A KEALOHA: Yes. So, I understand that you are, they are basically inherited the project in an attempt to salvage their initial investment, but given the multiple extensions, are you seriously going to pursue this project or are you trying to retain your investment value for sale here? What are we approving? COOK: I have no investment in the property. I don’t have ownership— KEALOHA: So are we going to be facing someone else? COOK: —I was just trying to help them, see if they could get the property where it would be developable. And I felt like the independent living for senior right next to that project would be a good concept, rather than a larger project they’d proposed, 139 units. KEALOHA: So will you be diligently pursuing the project moving forward in a near term or is someone else going to be taking this over shortly? FUKE: Well, if I hear Mr. Cook correctly, you know, like neither he nor I are like the developer or, you know, the one that’s putting up the money; he’s a friend and, you know, I’m just kind of helping up on a consultancy basis. If, if the Council, if ultimately the County Council approves the time extension, what happens is that the land use entitlement runs with the land; it doesn’t run with the individual. So conceivably, you know, T & M Properties, you know, could be the developer or it could convey to someone else to, you know, to do it. But whoever does it would have to do it following the conditions and the terms outlined by the approved ordinance. So, the direct answer to your question is that we don’t have the answer to that question; we don’t know whether T & M are actually going to do the project. But that’s the project that, based on what Mr. Cook has had discussion with T & M, feel that would be most appropriate for the property. CHURCH: I, maybe I should be more concerned with the lapse of time that Keith really articulated well, but on a case of the SMA, even if one condition is not met, the SMA doesn’t go away, it runs with the land; it just means that the conditions are not met, and so there needs to be a reset or re-application to bring current the conditions of the original approval, which has not died, consistent with the various ordinances that have been passed and any zoning and so forth that’s been changed. So, in this particular case I think that’s what is being attempted here, and I’m not quite as concerned I think with the passage of time. SHIMAOKA: One thing that comes to mind is my original concern about whether this thing is going to get done or not. I know that our responsibility is to recommend favorable/unfavorable recommendation to the County Council. It will be my suggestion, because what I’m hearing from you two guys is you cannot give us a concrete answer on whether this project is going to be completed or not, and I know that the County Council is going to ask the question we want to ask, is we want to hear from the person that says, tells us that this project is going to be completed, this is not a pie-in-the-sky kind of a project. FUKE: I hear you, and so I guess like, so if you were to kind of do the reset button, or if you assume that – and kind of bad to assume, too, but – if you make the assumption and analyze that this is like a brand new ordinance, you know, brand new project that’s been represented as being 16 EXHIBIT A like a 104-unit project and so on and so forth, then, you know, we are making the argument, you know, through the report, as well as the staff has indicated, that if you look at from the General Plan standpoint, the Kona Community Development Plan standpoint, the concurrency provision, you know, are they, like, other stars, the regulatory stars, kind of like in line? And the answer to that question is, yes, they are in line, except that it’s not a brand new ordinance. Basically, it will amount to a brand new ordinance, if ultimately pass, but it’s like an extension of an existing ordinance but all of the conditions are like a brand ordinance. That’s all I can say here. UNGER: I thought you were very aggressive also in your application; not only are you applying for a five-year extension, you are also requesting an administrative additional five-year extension, and you even stated that due to unsure real estate markets and financial conditions in five years. That doesn’t make sense to me. I don’t understand how that can be your reason for extending it, and as somewhat convoluted as this is, to ask for a five-year administrative extension I thought was pretty aggressive on your part, on the applicant’s part. FUKE: Therefore, like, you know, and because of like what Mr. Cook had indicated, you know, there was a death in T & M Properties and all that stuff, so, when this was shared with me, you know, kind of figuring like, well, it’s almost like a brand new ordinance, and if this were like a brand new ordinance, you would like a five-year construction window with the potential for a five-year administrative extension, not an automatic but it’s a five-year administrative extension. So if the Commission is disinclined to consider an additional five-year, then my only suggestion is that, to delete the provision and so that there would be only just one five-year, and any subsequent extension, they would have to go through the same process, rather than having an administrative extension. CHURCH: I agree with the Chairman on this thing, too, these administrative extensions where we never see them again and they just seem to float by. I know even my own situation, I, when I ask about it, I said no, it’s not appropriate. And I don’t think those things are. I think you come back. And that I think also answers Sonny’s comment that there are no guaranties. I can remember we were here two years ago and asked the president of Bishop Estate when he said he had budgeting dollars for the subsequent year to take down the Kamehameha, the Keauhou Hotel, and he assured me that absolutely it was budgeted to be down. It didn’t come down the next year. No, it didn’t come down. It came down a year after that. So there are no guaranties on these things. But I think that administrative extensions I think we’ve got to do away with those, yeah. UNGER: Commissioners, any other questions of the applicant? Carr Smith. CAR SMITH: Mr. Fuke, are you saying that administrative extension is normal on a new ordinance? FUKE: If you were to start from scratch today, that’s the way it would be, you know, like you have like five-year construction window with the potential for a five-year administrative extension. CAR SMITH: And can the Planning Department confirm that, please? 17 EXHIBIT A YEE: Yeah. I confirm that. UNGER: Hearing no further questions, thank you— FUKE: Can I just— UNGER: Oh, go ahead, yeah, sorry. FUKE: Yeah, I’m sorry, Mr. Chair. You know, in response to what Commissioner Vitousek raised, you know, perhaps like that Condition O could be amended to read as follows, like, “Prior to the initiation of construction work or ground disturbance on the property, or prior to receipt of Final Plan Approval, whichever occurs first, the applicant shall assess the additional features at Site 13673 that were found during a May 20, 2009, SHPD site visit and submit an appropriate report to SHPD, which may include an updated AIS for its approval,” just to make it clear, yeah. VITOUSEK: Yeah. UNGER: Great, thank you. You may be seated. The floor is open for public testimony. I have one testifier – Mr. Van Pernis. Please raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? VAN PERNIS: I do. UNGER: Please state your name and area of residence. VAN PERNIS: I’m Mark Van Pernis. I live in North Kona, I have since 1976. UNGER: Thank you. You may proceed with your testimony. VAN PERNIS: Thank you. Ladies and gentlemen, you’ve been conned. This project is decades old and needs to start over again. Mr. Cook does not have any interest, ownership interest in this property. He is bankrupt. I think you need to have the applicant here. There is no commitment whatsoever for elderly housing or low-income housing on this property. No one here can say there is such a commitment. The notice Mr. Fuke sent out did not refer the fact this project is decades old; it only referred that they request for a five-year extension, not the ten. It also is a situation where nowhere \[inaudible\] whatsoever within the notice there is a Commercial, Village-Commercial zoning, only to the so-called elderly housing for which \[inaudible\]. The representations on the history of the project are not accurate; the property was sold for profit in 2011. The County has provided zoning and other benefits to this property, making worth a good deal more, which has been realized while the County has got nothing. I suggest you start over again, withdraw everything, and have everything cancelled to start over again. The situation has dramatically changed. I’m surprised Mr. Yee and his department do not 18 EXHIBIT A have very many facts here; they don’t even know where the access is going to be. The project should begin again, or it should be bonded, or there should be some other financial or time researches put on the property. There are no question the property is in – excuse me – the proposal is in violation right now, right now, it’s in violation several times over. And I have to ask who do you represent? The developer and its predecessors so they can make a profit or do you represent the people of Kona? Thank you. UNER: Thank you. You may be seated. Are there any other members of the public here to testify? Seeing none, I need a motion to close public testimony. SHIMAOKA: I motion we close public testimony. CHURCH: Second it. UNGER: We have a motion by Commissioner Shimaoka, second by Commissioner Church. All in favor? COMMISSIONERS: Aye. UNGER: Opposed? \[None.\] Motion carries. Public testimony is closed. Commissioners, at this time we’ll entertain a motion on the applicant’s request. VITOUSEK: Would it be possible to ask a question of staff before the motion? UNGER: Certainly. VITOUSEK: Sure, just wanted to follow up on an issue raised by Mr. Van Pernis about the requirement for this to be a senior living facility. Is that something that would be built into this approval? JACKSON: Typically, zoning doesn’t require specific projects to be built. VITOUSEK: Got you. JACKSON: It would allow for anything, any use allowed in the RM or CV zoning district. VITOUSEK: Because I totally see the need for a facility like this and I think it’s a great location for a facility like this, but without having the requirement for this and without a certain development, you know, future for it, it’s hard to say what we are really approving. UNGER: So the process would be to make a motion and once it’s seconded, the Commissioners can open it up for additional dialogue before vote. Commissioner Carr Smith. CARR SMITH: I’ll take a shot at this. I move that a favorable recommendation be forwarded to the County Council on the request to consolidate and amend Change of Zone Ordinances 09-49 and 09-50, based upon the Planning Director’s recommendation and proposed amended 19 EXHIBIT A conditions, including the addition of adding an AIS as was mentioned by Mr. Fuke and the consideration of the requirement that the use be elderly housing, which shall be adopted. UNGER: We need a second. A second doesn’t mean you support it; it means we can have it— CHURCH: I’ll second it. UNGER: — on the table for discussion. We have a second. Motion by Carr Smith, second by Commissioner Church. The floor is open for discussion. SHIMAOKA: Again, the same concern I had that I addressed to Mr. Fuke on the reality of this project whether it’s going to be completed or not. I would recommend that we address the recommendation, the favorable recommendation to delete the five-year administrative extension. I would like to see the applicant. I’m assuming that the County Council will say the same thing, because, again, the County cannot operate on representatives who have no really authority to answer concretely to us. And so I don’t know how to amend that, and I guess that’s why you are here to help us. UNGER: That’s fine. We can, why don’t we continue this discussion, and then we can finalize a motion or you can retract and restate – well, let’s go ahead and continue our discussion. CHURCH: I, from my prior comment you know that I thought it was a good project, and I find it interesting that this actually could find its way into a condition. I guess it could. I think it’s natural that the evolution of the development concept is rested here. I think that’s an interesting one and I would be supportive of it actually. SHIMAOKA: It comes up – I’m sorry, did I – can we restrict this to senior housing? UNGER: I think we, I think County just responded that no, but, basically, we are giving a recommendation to the County Council and they are going to make the final decision, and so that’s where the, that’s where Corporate Counsel will be involved. We can certainly make a recommendation that if we do approve this, we’d like to see elderly housing. But I think that’s as far as our jurisdiction extends. SHIMAOKA: Okay. UNGER: Unless Planning would like to further comment. YEE: I would want to have a quick conversation with Corporation Counsel. UNGER: Okay, so why don’t, we’ll continue this discussion, maybe we’ll take an executive session break after we have a chance to continue our discussion here with the motion on the table now. 20 EXHIBIT A KEALOHA: You know, I generally support the notion of the plan. What I’m challenged with is I’m not certain that we have a genuine proposal going on as far as the development is concerned. And I don’t know that I’ll be supportive of the motion as it was presented. UNGER: As presented, I’ll be voting against it, and then if the majority is against it, I’ll be proposing a negative recommendation. And there are some relatively stringent requirements in proposing a negative recommendation against the Planning Department, but because basically they’ve gone through their, they’ve gone through their process why they recommend it, then so it’s on the Commissioner who is going against the recommendation to also list their reasons. And so, I mean, my reasons is I guess lack of good faith, the fact that it did expire in 2014, nothing has happened since then, the question also would be the, whether good faith goes towards, is this going to be developed at all. And then, also, I question whether 104 units can even go there at first, whether they’ll be able to get water permits to do 104, which is what they are proposing, so that’s a question. So I would, I remiss in approving something that I have no idea really what the final outcome is. There is even a question on the turn-in lane, which could be resolved with pushing the reset button and going back before the County Council to reapply for zoning. And so when I look at the bigger picture, I’m, I would prefer to see this project start over again, especially with the length of time that it originated at. CARR SMITH: Chair Unger? UNGER: Yes. CARR SMITH: So I have a lot of thoughts floating around on this. It’s my understanding that the ordinances run with the land, and that they don’t expire, that it’s just the conditions that expire. I really am not comfortable, I think we are all uncomfortable, with the fact that these things are allowed to expire and nothing happens or there is no consequence when they come back. I see that as an opportunity maybe for the Planning Department to create a new policy for how they deal with that so that it’s a little more cut and dry as to how we deal with it as well. I think Commissioner Vitousek for being on this Commission and adding so much to it in terms of the AIS is a good thing, and even questioning whether we can keep, or require that this be an elderly housing facility, which I think is a really good use, and I would love to see that happen. So, anyway, I’m, I’m at odds but wanted to get this going — UNGER: That’s good point. CARR SMITH: Yeah. CHURCH: One last comment here and that is that if we could make this the condition, the senior house, I think kicking the project down the road that has this potential – there is a need here — and moving the project forward, to me, offset some of the things you bring up. They are good points. But I think if we could move this project towards that and goal, I think that would be worthwhile. That’s where I would be coming from. 21 EXHIBIT A UNGER: I think we are circling back to the same point. I move that we break to executive session to further discuss the legal ramifications of a motion, and we will – \[speaking to Mr. Kim\] do I need a motion? SHIMAOKA: Yeah, I’ll make a motion that we move to executive session to discuss this matter. CHURCH: I’ll second that. UNGER: Motion by Commissioner Shimaoka, second by Commissioner Church. All in favor? COMMISSIONERS: Aye. UNGER: Opposed? \[None.\] We’ll break for executive session. We’ll be back in ten minutes. The room was cleared, and the Commission went into executive session at 10:41 a.m. for the purpose of consulting with its counsel regarding questions and issues pertaining to the Commission’s powers, duties, privileges, immunities, and liabilities, pursuant to Hawai‘i Revised Statutes 92-5. At 10:58 a.m. it was moved by Commissioner Shimaoka and seconded by Commissioner Church that the Commission go out of executive session. Upon a voice vote, the motion carried unanimously. The meeting was reconvened at 10:59 a.m. UNGER: The hearing is back in session. We’ll continue where we left off; there is a motion on the table that needs to be voted on or modified or withdrawn. VITOUSEK: Did we have the opportunity to, again to ask the Planning Director? UNGER: Yes. Let’s go ahead and get the motion back, if you would like to amend the motion or keep it as it is, and we’ll get a second on it, and then we can open it up for discussion, including the Planning Department. JACKSON: May I just restate the motion? UNGER: Sure. JACKSON: Okay, I understand that, Carr Smith, Commissioner Carr Smith made the motion, Commissioner Church seconded it, it was to approve, or to send a favorable recommendation to the County Council as recommended by the Planning Director, with an amendment to Condition O related to the AIS and to recommend that the use be elderly housing. Is that accurate? And there was discussion about the administrative amendment condition, but as far as I understand, that’s the motion on the floor at this time. UNGER: So there is no, as part of the motion there is nothing addressing the administrative five-year extension. Is that correct? 22 EXHIBIT A CARR SMITH: Correct. UNGER: Okay. Would you, and, is that a correct rendition of your motion in your opinion? CARR SMITH: Yes, I probably would have been a little more clear that I would like the proposed independent senior living to be a condition. JACKSON: Okay. UNGER: I’m sorry, to be what? CARR SMITH: A condition— UNGER: Oh, okay. CARR SMITH: A new condition. UNGER: Okay. So you can modify your motion to include that. CARR SMITH: All right. I’d like to modify my motion to read I move that a favorable recommendation be forwarded to the County Council on the request to consolidate and amend Change of Zone Ordinances 09-49 and 09-50, based on the Planning Director’s recommendation and proposed amended conditions, including adding an AIS in Paragraph 0, or O rather, and adding a condition that the use for the property be independent senior living units, which shall be adopted. UNGER: We need a second. CHURCH: I’ll second that. UNGER: The table is open for discussion. KEALOHA: I can support that in general. I would like to add the elimination of the administrative extension of five years. UNGER: I don’t think that’s a part of your motion, or is it? CARR SMITH: It’s not a part of my motion, but— UNGER: Right, no, that, so it’s not— CARR SMITH: —we can agree to do that, if that’s what everybody wants. But it’s not a part of my motion because— UNGER: Okay, so you— 23 EXHIBIT A KEALOHA: I’d be opposing the motion, with a preference to including the elimination of the administrative extension. CARR SMITH: The only reason that it’s not in there, I understand the concern and concept, but the Planning Director is telling us that that’s the norm these days, so that’s why I wasn’t opposing that. UNGER: Commissioner Vitousek. VITOUSEK: And I could understand why for this particular case not having an administrative extension makes sense because of the lapses that have happened in the past and the changes to the development plan that have occurred. So I could see where in this particular case having them come back to the Council to, or Commission, to request an extension would make sense. CHURCH: Yeah, I’m supportive, I’m supportive of that. That’s why I raised it last time. Also, I’m concerned about this water permit issue that you brought up, and I would, I would be supportive of the inclusion as a condition, too, where prior to Plan Approval that all the water permits be secured. UNGER: Well, we still have the motion on the table with two recommendations, so, Commissioner Carr Smith, you can choose to modify your motion, we can vote, if it carries, it carries; if it doesn’t, we can reopen the floor for a motion. CARR SMITH: That’s fine. I can understand that in this situation maybe we don’t want to add any more extensions, even if it is perhaps typical. And, as far as the water credits, it doesn’t seem as though you have enough, they have enough, but I think that would come out later in the Plan Approval process. But, having said that, I’m willing to add those two items to my motion; so that would be to remove the five-year administrative extension option and to add the condition pending sufficient water credits. CHURCH: My objection was that the water permits would get secured in advance, and there is a fee for it, those get secured prior to Plan Approval, which we know they have to submit for anyway. CARR SMITH: Right, I think that’s typical, isn’t it? Part of the— UNGER: Yeah, but keep in mind there is not— CARR SMITH: —process anyway. UNGER: —there is not 104 units available. They won’t be ready for five years, and so, I mean, essentially, we are saying this project can go forward, if we are going to recommend that— CHURCH: Unless they came back and requested phasing. 24 EXHIBIT A VITOUSEK: Another question that I wanted to ask of the Planning Director or staff was the question on the zoning; if it is a negative recommendation from the Commission and also from the County Council, what happens to the property? YEE: Generally remains in limbo. But I’d like staff, because they certainly have much longer history around, you know, putting a condition possibly around a particular use, in this case senior housing, I’d like staff to talk about that a little bit. VITOUSEK: But, but before we do that, could – I’m just trying to understand this question – so the current zoning of RM-2.5 and CV-7.5, if it was a negative recommendation from both this Commission and from the Council, and it would go into limbo, but still not clear on what that means. Does it retain the same zoning and it’s just the project is gone, or is the zoning gone as well? JACKSON: It retains the same zoning unless the Council, or the Commission, unless the Commission recommends to revert the zoning and the Council agrees— UNGER: Okay, that’s what— JACKSON: If the Council agrees to revert the zoning, then it would go back to, a portion of the property would be Unplanned and the other portion I think would be RM. UNGER: Okay, so like Corporate Counsel said, the zoning would stay in limbo on the property unless the County Council decided to go back to ground zero. JACKSON: Yes. So if the Council were to, to not support the time extension and amendments, they could direct the Director to initiate procedures to revoke, or revert, the zoning. UNGER: Or not. JACKSON: Or not. VITOUSEK: Or not, because if it’s just not granting a time extension for this project but retaining the zoning, that’s possibility. JACKSON: It’s a possibility, but then it would leave it back essentially where it is now, just a zoning ordinance that has conditions that have not been met and are outdated. VITOUSEK: Okay. JACKSON: So I would just add that if the goal is to, if the long-term goal is to see housing developed on this property, then the fastest way to do that is to retain the zoning, rather than have the current applicants or another landowner have to come in in the future and attempt to rezone the property again; that would just be one other entitlement obstacle they would have to go through before moving a house- any type of housing project forward. 25 EXHIBIT A VITOUSEK: Yeah, and I definitely think that, you know, from our discussions, we don’t want to eliminate the zoning because we think it’s appropriately zoned for this area; it’s just a question is on this specific project, and how it would be dealt with, if this motion is denied. JACKSON: Yeah, and going back to what the Director asked, I would defer to Corporation Counsel because they know the legality of whether you can have a zoning ordinance that requires a certain project be built, whether that’s contractual zoning. But, typically, when you receive zoning, you are allowed to do the full suite of land uses that are permitted in that zoning district. VITOUSEK: So, how would we then require that the project that’s being submitted to us be the one that we are approving? JACKSON: The project is not actually being submitted to the Commission; this is a conceptual project that the applicant is proposing. What is before you is whether it is appropriate to issue a time extension and amend the conditions of the zoning ordinance for CV and RM zoning. UNGER: Great, thank you. And that is the motion on the table at this point. The motion is to essentially agree to a time extension and modify the terms of the extension, that’s what’s on the table right now. JACKSON: And if I could just add one more thing regarding the water issue. Commissioner Church, if I could just call your attention to Condition B and see if that actually meets the requirements that you were speaking of. The way it reads now – the Director has recommended amendments to the current Condition B, and that language is underlined – basically it requires that the applicant secure water commitments within 180 days of the effective date of a new ordinance for the 50 units that are available, and then prior to development of any future phases beyond 50, what 50 units would support, the applicant needs to obviously make water system improvements or do whatever is needed to acquire additional water commitments— CHURCH: Works for me. JACKSON: —from Water Supply. CHURCH: There is probably ten more available. I would just shoot 16, now you only need six, so a couple of other people throw some more back in the- UNGER: We have a motion on the table. Commissioner Carr Smith, would you like to modify your proposal? Are you, perhaps we can re-read it one more time? Ms. Jackson, do you, could you summarize again? JACKSON: Uh, yes— UNGER: Or, maybe, Commissioner Carr Smith, would you summarize your motion one more time? 26 EXHIBIT A CARR SMITH: I will, yes. I move that a favorable recommendation be forwarded to the County Council on the request to consolidate and amend Change of Zone Ordinances No. 09-49 and 09-50, based on the Planning Director’s recommendation and proposed amended conditions, including the addition of an AI, requirement of an AIS in Paragraph O, and the deletion of the new condition, which allowed an administrative time extension, which shall be adopted. UNGER: Okay, great. That is the motion on the table. We have a second already, and so we can continue to the, if anybody has any other comment, we can discuss or we can call the motion, call a roll call. KIM: Sorry, I don’t know if we had a second to the motion as amended. UNGER: We’ll clarify. Can we have a second to the motion as amended? KEALOHA: I’ll second. UNGER: So we have a second by, first by Commissioner Carr Smith, second by Commissioner Kealoha. Seeing no further discussion, I will call for roll call. JACKSON: Okay. Okay, I’m just going to reiterate because I think Commissioner Carr Smith dropped the requirement for the independent living facility condition. Correct? I only heard two changes— CARR SMITH: It’s my understanding that the Planning Department said that that was not a reasonable request. JACKSON: Okay, so you are, you are choosing to drop that. CARR SMITH: Subject to you folks saying that that’s not a normal condition— JACKSON: Okay. Okay, so there is— CARR SMITH: —otherwise I would not drop it. JACKSON: Okay. CARR SMITH: So if you want to reiterate, you could. JACKSON: So— YEE: No, I prefer that you drop it. JACKSON: So the— 27 EXHIBIT A UNGER: That, that being said, we are an independent body separate from the Planning Department and the County Council, and if you want that in there, you can certainly put that in there. The floor is still open for discussion. CARR SMITH: Yeah, I’d like to know what my fellow commissioners feel about that. CHURCH: I’d include it. VITOUSEK: I agree. UNGER: Would you like to amend your motion— CARR SMITH: Ugh— UNGER: —to add, well, we can, and to, I mean you can abbreviate, “to add,” “and to add.” CARR SMITH: All right, I’d like to add to my motion a condition that the proposed project should remain in concept an independent senior living facility. UNGER: We need a second for the amendment, amended motion. CHURCH: Second. KEALOHA: Would the, maybe would the amendment state that anything but a senior living facility would constitute substantial change? Would that be more appropriate? UNGER: I, I would say we are getting into some, my opinion is we are getting into some detail; I think we’ve got that, that concept out there to the County Council, and it’s somewhat not conventional, so I would rather leave it general rather than trying to get specific on the relatively unconventional point. CARR SMITH: That’s my concern is we are altering what the Planning Department normally does, which— UNGER: Exactly. CARR SMITH: —I’m not necessarily comfortable with; I mean, that’s not my job, that’s their job. CHURCH: Except that it’s a favorable ruling. The project moves forward with the clarification, which we put in, which influenced our opinion in the first place. VITOUSEK: And it is a recommendation to the Council, that this is the Planning Commission’s recommendation to the Council, that this is what we think the project should be as presented by the applicant. And it’s, you know, we are not making a decision that limits it; we are just making our recommendation. 28 EXHIBIT A CARR SMITH: I’m good with that. UNGER: Roll call. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Vitousek? VITOUSEK: Aye. JACKSON: Commissioner Shimaoka? SHIMAOKA: Nay. JACKSON: And Chair Unger? UNGER: Nay. JACKSON: Okay, the motion carries, four-zero, I’m sorry, four-two. UNGER: Thank you. Applicant, you’ll be notified in writing. The discussion ended at 11:18 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 29 EXHIBIT A