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HomeMy WebLinkAbout2018-12-10 Leeward Exh B (SMA 18-069 and SPP 18-197) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT DECEMBER 10, 2018 A regularly advertised hearing on the applications of KULEANA SPIRITS INC. (SMA 18-000069 and SPP 18-000197) was called to order at 11:18 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 three people from the public in attendance. APPLICANT: KULEANA SPIRITS INC. (SMA 18-000069) Application for a Special Management Area Use Permit to allow the development of a micro-distillery and visitor center with a tasting room and related accessory improvements on approximately 8 acres of a 43.854-acre parcel within the Special Management Area. The subject property is located on the east side of ‘Upolu Road, just south of ‘Upolu Airport, about 0.6 miles north of the Akoni Pule Highway-‘Upolu Road intersection, Kealahewa 3rd, North Kohala, Hawaiʻi, TMK (3) 5-5-006: por. 010. APPLICANT: KULEANA SPIRITS INC. (SPP 18-000197) Application for a Special Permit to allow the development of a micro-distillery and visitor center with a tasting room and related accessory improvements on approximately 8 acres of a 43.854-acre parcel within the State Land Use Agricultural District. The subject property is located on the east side of ‘Upolu Road, just south of ‘Upolu Airport, about 0.6 miles north of the Akoni Pule Highway-‘Upolu Road intersection, Kealahewa 3rd, North Kohala, Hawaiʻi, TMK (3) 5-5-006: por. 010. UNGER: The applicant for Item 2 and Item 3 are the same. I’ll go ahead and read both applications, and County Planning will make a presentation on both agenda items at the same time and we’ll discuss them at the same time, and then, however, when it comes to make a motion, we’ll break it up between the SMA motion and the Use Permit \[sic\] motion. No. 2, Applicant Kuleana Spirits Inc., SMA 18-000069, application for a Special Management Area Use Permit to allow the development of a micro-distillery and visitor center with a tasting room and related accessory improvements on approximately eight acres of a 43.854-acre parcel 1 EXHIBIT B within the Special Management Area. The subject property is located on the east side of ‘Upolu Road, just south of ‘Upolu Airport, about 0.6 miles north of the Akoni Pule Highway-‘Upolu Road intersection, Kealahewa 3rd, North Kohala, Hawaiʻi, TMK (3) 5-5-006: portion of Parcel 010. Agenda Item 3, Applicant Kuleana Spirits Inc., SPP 18-000197, application for a Special Permit to allow the development of a micro-distillery and visitor center with a tasting room and related improvements on approximately eight acres of a 43.854-acre parcel within the State Land Use Agricultural District. The subject property is located on the east side of ‘Upolu Road, just south of ‘Upolu Airport, about 0.6 miles north of the Akoni Pule Highway-‘Upolu Road intersection, Kealahewa 3rd, North Kohala, Hawaiʻi, TMK (3) 5-5-006: por. 010. County, your presentation, please. JACKSON: Thank you, Chair Unger. Okay, the subject property is located in the North Kohala District. You can see the property outlined in red on the screen, and Akoni Pule Highway is running along the bottom area of the slide and heading an east-west direction, and then ‘Upolu Road comes off heading north. The property is located just on the east side and just southeast of the ‘Upolu Airport. The applicant is requesting a Special Permit and an SMA Use Permit to establish a micro-distillery to produce rum, and a visitor center with a tasting room, and related accessory uses on approximately eight acres of land. The applicant proposes to construct the following buildings on the mauka eastern corner within the eight acres in order to minimize impacts to surrounding properties: The first structure would be about 2,560 square feet in size. It would be a storage shed to house agricultural equipment such as tractors, and it would include an area to extract sugarcane juice. This structure would also include an office, mechanical room and restroom. The second structure would be the same size, and this building would be used for the micro-distilling process. It would be similar in height, less than 20 feet tall, as the storage shed, and it would also include an office, mechanical room and restroom. And then the third structure would also be 2,560 square feet in size. This building would accommodate the tasting and sampling, as well as retail sales of the beverages and associated promotional products like T-shirts, hats, etcetera. This structure would include a tasting area, and an approximately 300-square foot kitchen for preparation of pupus to accompany the beverage tastings, and it would also include an office and restrooms. The kitchen and tasting area will not operate independent of the micro-distillery processing facility, meaning that they won’t bring people to the property to the kitchen like, as a commercial kitchen or something like that; the kitchen and tasting will only be used in association with the micro-distillery. 2 EXHIBIT B Parking areas for employees, visitors, and loading and unloading will be provided in accordance with the Zoning Code. There will approximately be 15 employees. And visitor hours would be daily from 9:00 a.m. to sunset, or about 6:00 p.m. At least – the entire property is about 40, I think, a little over 40 acres in size, 43 acres in size, the applicant proposes to use about 28 of those acres to grow crops to be used in the rum making process – so about 20 acres on the west side of the property will be planted in heirloom-variety sugarcane, which would then be harvested and distilled into the rum. An additional eight acres will be used for non-sugarcane crops, such as citrus fruits, Hawaiian sweet potato, breadfruit and ti. Those can also be imported and blended with the rum to produce a different product. The applicant may also secure some of its sugarcane off-site from other farmers. This is the applicant’s site plan. Let’s see, ‘Upolu Road is along the west side of the property here, and then there is a driveway that comes off, goes beyond an existing paddock area, and then two roads that branch off towards the two structures and the visitor center structure. This is a floor plan of the visitor center, as well as an architectural rendering. You can see it’s kind of an open-style structure. They have the tasting bar in the back, and then an enclosed kitchen and an office space in the back corner here, as well as a large open lanai. You can see here on the top picture the tasting bar, the large open lanai area, the 300-square foot kitchen and then office and mechanical space, as well as restrooms. This is the distillery floor plan and rendering. Again, it’s another open-style structure. It has walls basically on three sides. So all the distilling activities would occur in here, and then there is a small office and restroom and mechanical room. The County zoning for the property and surrounding area is Agricultural-20 acres, which is shown in the green. The State Land Use District is Agricultural, and then you can see the airport and the areas just makai of the property are in the Conservation District. And the General Plan designation for the property is Important Agricultural Land, which is shown in the light green, and, again, areas makai are in the Open General Plan designation. And this is the Special Management Area line. You can see all the crosshatched areas are in the SMA, so there is just a small sliver of property on the mauka side that is outside of the SMA. This is an aerial view of the property. You can see the airport here. A lot of the land surrounding the property are used for cattle grazing. This area over here is primarily cattle grazing, and then just mauka of the property is a wind farm. You can see the little, or large, wind structures here. And then the closest dwelling is located, I believe, right about here, just on the west side of the road. This is a view of the property driveway. So the structures would be built kind of in the back area beyond this, I think that’s a tractor. 3 EXHIBIT B And then another view, this is a view of ‘Upolu Road looking south towards the highway. It is, has eleven feet of pavement, and then there are about six-foot grass shoulders on either side. And then this is a view of the road looking towards the sea. So the property would be further down here on the right side. The Planning Director is recommending approval of the Special Permit and of the SMA permit with conditions. And we have not received any testimony or additional information since your background and recommendations went out last week. That concludes my presentation. UNGER: Thank you. JACKSON: Uh huh. UNGER: Commissioners, any questions? SHIMAOKA: Yeah, I’ve got a few. Are they planning to improve the dirt road? Do you know? JACKSON: The, the main road? ‘Upolu Road? SHIMAOKA: Yeah, to the facility. JACKSON: No. SHIMAOKA: No. Can you give me an idea the distance from Mo‘okini Heiau? JACKSON: Let me go back here. SHIMAOKA: It should be on the left there, yeah— JACKSON: Yeah— SHIMAOKA: —from the property. JACKSON: I believe it’s left and off of the slide ways. I would say at least a quarter mile, but perhaps the applicant has more information. SHIMAOKA: Okay, I’ll ask him when he comes on. My, my main concern is that it’s a wahi pana, yeah, which is one of the most sacred sites, I think, on our island, and so I’m just wondering what kind of effect it’s going to have on the cultural site. It’s also the Kamehameha’s birthplace. 4 EXHIBIT B CHURCH: I couldn’t tell. Are the, the two main structures, not the visitor center, are they outside of the SMA area? JACKSON: No, all of the structures are pretty much in the SMA area. CHURCH: They are all there, okay. JACKSON: I think one of them might be outside. But it’s very close. There is the SMA. Yeah, it looks like this bottom structure here may just be out of the SMA. But when we evaluate a project, we look at the entire property, and if any part of it is in the SMA and something will be done within the SMA, we evaluate the entire project. UNGER: Commissioner Carr Smith. CARR SMITH: Can you talk a little bit about the easement to the County for the pedestrian and vehicular access on the makai side? JACKSON: Sure. So, currently, the property deed has an easement that’s referred to as Easement 92, and it generally aligns with this more makai access alignment, and that easement is for road and utility purposes. So the access that’s more mauka, this one here that curves, is actually aligned with a historic Hō‘ea Road, and that road provided access from, along the shoreline basically, from the east to the west. And SHPD reviewed an AIS for the property, they recognized that the proposed activities that are being done on the mauka side of the property would have no impact necessarily to these, to the historic Hō‘ea Road, but they recommended that the road be captured as part of the public access easement for the property, and so they, they also recommended that it be kept as is and not modified in the future or improved. So there is a condition that asked that the applicant realign their easement to grant an easement to the County that captures both of these access, access ways, for vehicular and pedestrian access. CARR SMITH: Thank you. VITOUSEK: To follow up on that, so that, but that was also an email correspondence from SHPD and not a formal review of the AIS, is that correct? JACKSON: They formally reviewed the AIS but they have not formally given us a letter yet. We requested it about four months ago and they have not provided that yet. VITOUSEK: So they haven’t formally approved the AIS. JACKSON: They have not formally approved the AIS. VITOUSEK: But they’ve told you that they intend to approve it— JACKSON: Yes. VITOUSEK: —or that they just agree with the project? 5 EXHIBIT B JACKSON: They said that they intend to approve it with the one recommendation that the— VITOUSEK: That, the site be preserved, correct? JACKSON: It be preserved as is and captured within the public access easement being granted to the County. VITOUSEK: So then, would you insert a condition that the site be included as part of a preservation plan? JACKSON: We could, although it’s really SHPD, SHPD’s recommendation that would say we are approving the AIS but we want a preservation plan for the historic Hō‘ea Road. VITOUSEK: Right, right, so, I mean, usually you’d have the AIS accepted prior to moving forward with the permit on the project, and it seems to me like we are not doing that; we are moving forward with their general correspondence saying they are okay with it but they want this site be preserved. JACKSON: Yeah, so – let me back up a little – so the AIS, the archaeologist that did the AIS recommended, he identified all of the sites on the property, including the historic Hō‘ea Road, and he recommended no further work. And I believe he did that because he knew that the proposed project would not impact the historic Hō‘ea Road. And so, it was through conversations with SHPD that I had where they said yes we are okay with the recommendations in the AIS but we think the historic Hō‘ea Road should be captured in the public access easement. VITOUSEK: I mean, to me it’s two different things, you know, the designation of no further work on the site means SHPD is okay with it being destroyed. JACKSON: Okay. VITOUSEK: That’s what that would mean. That’s what, the applicant is proposing no further work meaning it’s okay for that to be destroyed. JACKSON: Okay. VITOUSEK: Now, if SHPD is requesting preservation as is, that’s something different than the applicant’s request for no further work. And, to me, that would have to be clarified. JACKSON: Okay. VITOUSEK: And, you know, I think that if we are going to take SHPD’s recommendation that it be preserved as is, we would insert a condition that a preservation plan be prepared for the site, and then that would also include the County’s requirement for an easement for pedestrian and vehicular purposes. 6 EXHIBIT B JACKSON: So you are suggesting just adding the preservation plan requirement to Condition 4 of the SMA permit? VITOUSEK: Yes, yeah, I think that would be appropriate— JACKSON: Okay. VITOUSEK: —to add a requested condition for the completion and acceptance of a preservation plan for Hō‘ea Road and with the site number designated. JACKSON: All right. UNGER: And that can be part of a motion; if a Commissioner wants to make that motion, that can be part of the motion. Any other questions of staff? VITOUSEK: I guess I would, I guess just to clarify, I would request the completion of a detailed mitigation plan. A preservation plan is a component of a mitigation plan and it could be by itself all aspects of a mitigation plan, but because we don’t have a formal review from SHPD yet and they are requesting to destroy historic properties as part of the application, SHPD may come back and say hey this ditch complex that they want to destroy needs to be recorded in a certain manner before it can be destroyed, it should be a component of the mitigation. So I guess my request would be a mitigation plan accepted. JACKSON: In addition to the preservation plan? VITOUSEK: No, preservation plan is like a— JACKSON: Okay, all right, you are more familiar with the— VITOUSEK: —sub-branch underneath mitigation plan, so mitigation covers all aspects of that— JACKSON: All, okay. VITOUSEK: —including preservation. UNGER: Great, thank you. Would the applicant come forward, please? Please raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? \[The applicant’s representatives affirmed inaudibly.\] Please state your name and area of residence. FUKE: Good morning again, Mr. Chairman, Members of the Commission. Sidney Fuke, planning consultant, residence is in Hilo. JEFFERSON: Good morning, Chairman, Commission members. My name is Steve Jefferson. I’m a resident of Waimea. 7 EXHIBIT B UNGER: Good morning. Have you read and do you agree with the recommendations from the Planning Commission, or from the Planning Department, including the discussion in regards to the archaeology work on the property? FUKE: We’d like to explain just a little bit first before making that concession; however, relative to the overall proposed staff background report and the conditions, in reviewing it with the applicant they found it generally acceptable. There are like several suggested changes – they are more like an editorial basis – that we’d like to submit for your consideration. First, relating to the Special Permit, Condition No. 7 requires like “Prior to issuance of Final Plan Approval, the applicant shall provide fire protection measures,” so on and so forth, and normally these are done in conjunction with the actual development of the property and not, you know, way upfront, so we would like to recommend that that be changed to prior to issuance of the occupancy permit that all of these things be done. Likewise with Condition No. 9, it also states, “Prior to issuance of Final Plan Approval, the applicant shall install reduced \[pressure type\] backflow prevention,” so on and so forth. These are the water requirements. Again, these are all construction-related, so we would like to also recommend that that be changed to prior to issuance of the occupancy permit. The other thing is like, you know, related to what Commissioner Vitousek raised in terms of a preservation plan and the mitigation plan, if you can just, I’d like to direct your attention to the applicant’s site plan, you know, you see the road, which runs like in a north-south direction, or parallel to the ‘Upolu Point Airport, the second portion is like where above of the roadway is clearly fenced off and the applicant has, all of his activities are situated mauka of that second line, the second roadway line, so there is no activities – oh, thank you \[A laser pointer was handed to Mr. Fuke\]. So, right on the mauka portion of this roadway is where the applicant has fenced up, and, essentially, all of that area makai, this area here, has been kind of like forgiven; it’s not like, it’s not going to be used in any way, shape or form by the applicant. So what the applicant has already submitted to the County was an easement document, you know, that corresponds to this Hō‘ea Road, to the County, and having it set aside for not only, not only vehicular access but also pedestrian access, you know, in perpetuity. Then we had the archaeological, the archaeologist did the assessment of the property, and, as the staff had indicated, when SHPD reviewed it, it had recommended that the entire, you know, roadway, this Hō‘ea Road, and, you know, be set aside and, set aside for preservation, and be used, you know, for the public. So we are in the process of amending the deed, the easement description of this portion, because the original description included only the roadway portion. SHPD came back and said no you have to kind of go a little bit wider. So it’s absolutely not an issue with the owner because the owner is saying that we have that area all forgiven already; it’s going to be set aside for the public anyway. So this I think goes back, you know, to the point that where Commissioner Vitousek raised about like whether there is really a need for like a separate preservation plan, you know, and I guess from the owner’s standpoint – he’ll kind of like state to that – but, you know, first of all there is no activity in that area being proposed. All SHPD wants is like make sure that you preserve it and, you know, you set aside and make it available to the general public. And so that is absolutely not a problem. Secondly, I think it relates to a timing 8 EXHIBIT B issue. So if there is, if SHPD has not completed its review on the inventory analysis in four months – and Mr. Vitousek knows very well – how long is it going to take before the preservation plan can actually be, you know, not only prepared, the preparation portion is pretty simple from the archaeologist’s standpoint, but to have it reviewed and approved by SHPD, that becomes a really, really big question mark. And he is in the position of wanting to get started like the day after yesterday, and especially since this activity has no, what he’s proposing has no, you know, like will not have any impact on that area that’s been recommended for preservation. Having said that, maybe I’ll just kind of turn it over to Steve, Mr. Jefferson, and he can explain a little bit further in terms of his timetable, what his overall concept, his vision is, because he’s pretty soon going to be opening up a restaurant in conjunction with this activity. So I think you’ll be very interested in hearing his story, not story but factual. JEFFERSON: So, to address both of your concerns, the heiau and the road were super important to us and we identified those immediately— UNGER: If you could speak into the mic, please. JEFFERSON: Oh, sorry. And we put a fence up immediately and we blocked ourselves off from access to our own property. So it’s not even possible for anybody that work on our site to even confuse that as our own property. And then we immediately started working with the County to try and figure out what we need to do to deed it over to the County so it can be taken care of properly. So completely agreed with you, but I think what we try to do is foresee that and make sure that’s not even an issue for us. And basically, yeah, so, Mo‘okini Heiau is about, I would guess, maybe two miles, but it’s at least a mile and a half down the road. And the lower road sort of abuts with the way that you would get there, or the most northern – it’s funny to call makai north – but the most makai road is actually how you would get out there. Basically, how we are using the property now is we’ve put 40 varieties of native Hawaiian sugarcanes that we’ve identified through the work of Noah Lincoln and Peter Vitousek – \[speaking to Commissioner Vitousek\] assume your uncle – and our intention is, basically, is to bring back these agricultural crops and have them thrive again, and then make a product so people can actually see how the products were raised and turned into something that can be enjoyed, tell the stories of the wayfinders, tell the stories of the agricultural feeds that the Hawaiians brought with them. We intentionally kept this out of the Kohala Fields System, which is to the east and closer to the heiau, because we didn’t want to disrupt those sites in case more work was discovered, and we intentionally picked an area that was for 150 years actively growing sugarcane. So we tried to pick the least impact spot for the activities we are trying to do, but still be able to be in an area where it was truly authentic and there was something for visitors to actually see without causing any further impact and yet something where the place where it made sense to be sharing these stories. So that’s, that’s literally why we picked this land instead of Hāmākua or anywhere else where it might have made more sense from a business standpoint. \[Speaking to Mr. Fuke\] Shall I explain what we are doing at the \[inaudible\]? FUKE: Yeah, you should. 9 EXHIBIT B JEFFERSON: So, yeah, we’ve, I don’t know if, we are opening a restaurant in Queens’ Marketplace, and that’s to showcase the products that we are making and for people to interact sort of with the brand. We have a distillery already in Kawaihae. And, again, we pick those two areas to do the primary activities because the idea is to lessen the impact. We just want people to come out here to enjoy the sugarcane, to learn the stories of how the sugarcane got here, plants, some other plants as well, ‘uala and kī and whatever else people are interested in, and then also to incentivize the community, too, if they are interested in getting cuttings from us, that would have been scientifically collected, grow, and then we’ll buy back from them and then to turn it into other products. FUKE: So, just to add a little bit to that, I, when I was working on this application, I had to learn a little bit about like distillery and brewery and all that stuff, and I kind of found it interesting because I thought like rum was always just made out of sugarcane, you know, but then I found out there was difference between like, you know, the traditional rum is made out of molasses although it’s like sugar base. But this one is more like it’s distilled, so, essentially, they are using just, you know, the first crush sugarcane, and they are distilling it. And so, and that was like what they call agricole, which is like a French term for distilled rum, I guess, yeah? JEFFERSON: Agricultural rum. FUKE: Agricultural rum. So that’s the intention behind here, to use the sugarcane, do the first crush, and distill that and come into a rum. On the point that, I think like Commissioner Vitousek raised, again, just to reiterate, it’s not so much a question of not wanting to do it, but, you know, the applicant – \[speaking to Mr. Jefferson\] and you can kind of corroborate this but – would probably not have any objection in preparing and submitting a preservation plan for that area, you know, for the Hō‘ea Road area, but not necessarily tying it into having the rest of his project kind of be held up until SHPD completes and accepts the preservation plan. So if the condition can be structured such that the preservation plan is submitted to SHPD for its review and approval prior to issuance of Plan Approval, which would probably be about 45 or 60 days from here, that would be acceptable. And knowing full well that there is no activity being planned by this project in that area, that should be preserved. One final point I would like to kind of make is that this building here is designed to be where they store all of the agricultural equipment, the tractors, the plow, so on and so forth, as well as where they want to do the crushing, you know, of the sugarcane. The sugarcane is, the sugarcane is pretty much like focused along this section \[pointing to the western portion of the property on the applicant’s site plan\], you know, of the property. And so what they would like to do is relocate this building to this portion over here \[pointing to the southwest corner\] and such that they would do all of the crushing and then, you know, haul it up to the distillery over here. And this is where your tasting room activity would be. Now, the entire property consists of about 42, 43 acres, and then the original representation was we were going to use like about eight acres, you know, in this particular area. The staff’s condition recommends that they provide like a metes and bounds description of this eight-acre area, you know, for the activity; 10 EXHIBIT B however, like, you know, if they were to situate this building to this location, because it makes it much more agriculturally efficient, we would like I guess the Commission to consider like whether we could kind of create a small little pocket over here and then still operate within the confines of an eight-acre area. And if there is a need – you know, as the staff had pointed out, that, you know, there is like a dwelling right in this area here, however, like the crushing activity is like it’s not going to be diesel but it’s going to be electrically operated, and so it’s not going to be that loud – but if you wish to impose like an agricultural standard type of noise control as an abatement, or as a requirement rather, you know, the applicant would have no objection. But, essentially, we really would appreciate the consideration on allowing this building, this structure to be placed in that over here. JEFFERSON: Yes, and that’s actually in an existing corral, I mean, being in a far corner of it, and honestly would not add any more noise or impact than what we are currently doing now, which is farming the sugarcane. UNGER: Wonderful, thank you. Commissioners, any questions of the applicant? KEALOHA: Real quick, so, if I heard you correctly \[inaudible\] of your discussion, you intend to create an easement and dedicate that to the County for both roads, the archaeol— JEFFERSON: We’ve already begun that process. It’s, I think it’s basically done. FUKE: Actually, the easement document was already submitted to the County, but the County has not acted upon it yet. And in a sense it was good because the easement contain like a metes and bounds description but it didn’t include that area that SHPD recommends that it be included. So we are going to have to go back and have the metes and bounds, you know, kind of re-describe to include that area. CHURCH: This is a little off the wall, but I’m just curious because I’ve flown in there myself into the ‘Upolu Airport, do you have any plans or any thoughts to use that to export any product or bring in supplies or use that in any fashion? JEFFERSON: I, honestly, if it fit into the plan and people liked, somebody wanted to do that, that’ll obviously be super fun. We’ve already talked to the people that are doing the skydiving out there, and, I mean, we don’t want to cause any fuss or any new traffic or anything like that, but if people are currently doing that, it sounds like it would be a lot of fun to me. UNGER: While the applicant is up here, does Planning Department have any objections to the modifications that the applicant is proposing for Item 7, changing that to prior to issuance of occupancy permit, as well as Item 9, as well as moving the building? JACKSON: No, the Department doesn’t have concern with that, just wants to clarify one point. So your permit area would stay eight acres; you would just realign that to capture that. \[The representatives affirmed inaudibly.\] Okay. UNGER: Great, thank you. Commissioner Carr Smith. 11 EXHIBIT B CARR SMITH: Do you have any notice requirements for the neighbor across the street, if you put a building over there? FUKE: Sorry, long day. We did send notices to surrounding property owner in conjunction with the submittal and also this public hearing. We didn’t receive any objection. But the direct answer to your question is that, no, they were provided with this site plan; they weren’t provided with a site plan, which reflects potentially the agricultural storage shed being situated on the south end. CARR SMITH: I have a few other questions, if you’ll indulge me, I’m just going kind of in order here. So, on Page 5 it talks about a feature Site 30914 was a ditch complex that’s going to be destroyed. Can, where is that, and do you not have any use for that ditch for runoff? It’s part of the Archaeological/Historical/Cultural Resources, Paragraph 17, on Page 5. It says, “The proposed development will result in the destruction of feature of Site 30914 \[(ditch complex)\] and access to the property will extend across the former path of \[Site 30913 (‘‘Upolu Point Road)\].” FUKE: You are looking at on Page 5 of Haun & Associates’ report? CARR SMITH: Yeah, no, of the background report. FUKE: I’m sorry, where on the page is it? CARR SMITH: In the middle— FUKE: Yeah, I see it— CARR SMITH: Yeah, “The proposed development will result ….” Maybe it’s right there in what we see on the topo, I’m not sure. VITOUSEK: Actually, no, I don’t have issue with destruction of a portion of the historic agricultural features in the area where they are trying to do new agriculture. So they are trying to basically continue the use of the area for sugarcane. You know, that goes to the question of a possibility of the mitigation plan. Certain aspects of mitigation could be providing interpretive history on the previous use of the sugarcane in the area and those ditches that are being disturbed, which I think would be a really interesting visitor component. JEFFERSON: Yeah, to be honest there is no evidence to us of any ditch anywhere, that’s why I’m sort of trying to figure where it is on the page— VITOUSEK: So Page 29 of the archaeological inventory survey has the map of where the features are located. JEFFERSON: Okay. 12 EXHIBIT B VITOUSEK: Figure 18. FUKE: It’s 30912? CARR SMITH: Three-zero-nine-one-four. VITOUSEK: Three-zero-nine-one-four, Features A through F. It’s the lines that are running kind of parallel with each other in a— JEFFERSON: Oh, yeah, no, those are— VITOUSEK: Those are historic— JEFFERSON: —those are, I, well, I don’t want to dispute the finding, but it’s my understanding that those, because we used to think that they were actually cane roads, and then we thought, it’s my understanding from people who’ve been on the land for a really long time that those were put in during the Great Depression as mitigation for runoff to go into the ocean, and so we’ve actually restored them as such, and just shore them up and make sure that they continue to do their jobs. So there’s these bands of, of kind of like flatten ditch areas that then go into little side channels to make sure that there is no runoff going into the ocean. FUKE: I guess, to answer your question, too, you know, Ms. Carr Smith, on Page 41 of the archaeological report, it’s said that the documentation of, you know, these, the five sites, which include these ditches, were adequately recorded and no further work of preservation was recommended. The only additional one I guess is like what Commissioner Vitousek is recommending relative to Hō‘ea Road. So, in terms of documentation, it would appear that SHPD is comfortable with what was contained in this AIS. VITOUSEK: But I guess the overall issue is that there is no formal approval of this archaeological inventory survey from either SHPD or from the County while, you know, we may agree all in concept to the recommendations for the most part, you know, with this particular site the question of how to move forward with the permit like this without that approval still exist. FUKE: So, in the earlier part, you know, you mentioned, Commissioner Vitousek, the thing about the preservation plan, preparing a preservation plan for the Hō‘ea Road complex. What was your other recommendation relative to the informational context— VITOUSEK: Sure, it was more, I kind of caught myself, instead of just saying preservation plan, we recommend mitigation plan because that would be covering the basis of a preservation plan and it could include any additional mitigation requirement— FUKE: Okay, so the, so the suggestion would be like a mitigation plan and, for the entire property, and that would address both the preservation component for Hō‘ea Road area, as well as any informational context, or information that may be further elucidated— 13 EXHIBIT B VITOUSEK: Sure, if they, upon the completion of the review of this report, because we don’t know what SHPD is going to do when they review this formally, we don’t know if the County is going to decide that they want to review this formally and make the approval themselves because it hasn’t been completed yet. The only indication that we have is that both SHPD and the County want to have the Hō‘ea Road area preserved, and that’s something that you guys are all in favor of, you are on board with. But the reason why that you would establish that as a requirement is because, let’s say, you guys sell the property and the next owner, you know, they may not see it the same way and they may encroach onto those buffers that would have been established by the preservation plan, so that’s why you set those buffers now during the time of the permit approval and have them memorialized in the preservation plan so that it runs with the land. KEALOHA: I guess to follow up on that, you said you are going to put that in easement to the County, correct? FUKE: Correct, it’s going to be dedicated to the County, I mean, like, we already have the document, we’ve just got to adjust the, you know, the metes and bounds description on it. And, again, just to reiterate that there’re already a point it’s, it’s a timing question, you know, not knowing like whatever you submit to SHPD, you never know when you come out. So, as I said, like if the concern is just getting something in so at least it gets addressed in some way, shape or form, the applicant would have no objection in making that as a requirement— VITOUSEK: Right. FUKE: —but not necessarily tying it in with not having to move until you get its approval, because none of those sites were deemed to be, well, as far as like where they propose activity is not going to have any impact. VITOUSEK: But, I mean, it’s the same question that we are asking now for the approval of the AIS, so, I mean, that’s a question I guess for the County staff is, is the County staff prepared to move forward with this without having an AIS accepted for the project area. UNGER: And then also it may be a legal question as well; I don’t know if there is any legal ramifications to moving ahead with approving an SMA without approval of these reports. Can you comment on that, Mr. Kim? KIM: Not off the top of my head. UNGER: Okay. Or, staff, do you know any legal ramifications to approving a project without having these reports completed by SHPD? JACKSON: My understanding of SHPD’s rules is that they have set timelines to respond to review of an AIS, preservation plans, mitigation plans, and once that time period lapses, the County can decide whether they want to move forward and essentially approve the document or wait for SHPD to approve it. 14 EXHIBIT B UNGER: Where are we in the timeframe? JACKSON: So in this particular case the AIS was sent to SHPD in – just a minute here – th September 17, and SHPD did not respond within their timeline and so we repeatedly emailed and contacted them, and then we finally got the email response from them that’s in your package, saying that they had reviewed the AIS but they haven’t had time to write the letter essentially, and that they would recommend the easement be readjusted to capture historic Hō‘ea Road. So based on the information that’s why the County felt comfortable moving forward and conditioning what SHPD had recommended in the permit. We didn’t formally accept it; we don’t really have a process for formally accepting an AIS. We tend to rely on SHPD, and in absence of that we make a call based on the information from SHPD whether we feel comfortable moving it to a hearing. VITOUSEK: Personally, I feel like, you know, if this is going to come to the Commission level, that there needs to be a process in place by where the County will accept an AIS, if SHPD missed its deadline. I feel like, you know, what is being proposed here is different from what is being proposed in the AIS where they are recommending no further work for Hō‘ea Road in the AIS, and if that is accepted, then that is the determination that would be going on record in this document that Hō‘ea Road is not being preserved. So it’s something that to me has to be, has to be clarified within the archeological inventory survey itself, if the County is going to accept that. So, if County decides SHPD missed their deadline, County is now going to accept responsibility for the AIS, then you need to, you have an independent obligation to consult with the archaeologists to have the AIS reflect what it is that you are accepting. JACKSON: Okay, so you are suggesting in this case actually not accepting the AIS because it recommends no further work for Hō‘ea Road, and actually having the archaeologist revise the AIS. VITOUSEK: Or accepting it with revisions— JACKSON: Okay. VITOUSEK: —and requesting that the archaeological inventory survey be updated to reflect preservation of Hō‘ea Road as requested by the County, and that the preservation be memorialized in a mitigation plan. CHURCH: If an easement has been created for the County, is, what I don’t understand is, whose responsibility is it for the preservation? Does it move over to the County from the owner of the property? JACKSON: Yes. If the easement is granted to the County, then the County— CHURCH: So it’s the County’s responsibility then. Why would we put that responsibility into this permit approval, I don’t, if that’s the County’s responsibility? 15 EXHIBIT B JACKSON: The County would not accept the grant of easement until the archaeological mitigation plans are completed— CHURCH: Uh huh, okay. JACKSON: —and accepted. That way, the County will know what it needs to do to maintain the easement. CHURCH: Okay. VITOUSEK: You know, from a historic preservation perspective, there are two different aspects when it comes to historic trail: There is the historic access element where you’d be getting an easement to protect the historic access across the land; and then there is the elements of the historic property itself. And so the historic easement, or the access easement would be preserving the lateral access across the property, and then the preservation plan would be protecting historic elements of the trail itself. So both of those together are what create this easement that protects the historic property and the access. FUKE: Can I, one— UNGER: Continue. FUKE: It’s actually a request. I mean like I respect Commissioner Vitousek because of his years of experience with SHPD, so he’s infinitely familiar with the rules. So, knowing, you know, my general sense is that, you know, this is a project that fulfills the SMA and the Special Permit criteria. The applicant, you know, really wants to get started, so – and you understand like how SHPD’s review and approval process takes – so, given that, can you help structure a condition, because, you know, it’s not a question of like their inability or not wanting to prepare like a preservation plan— VITOUSEK: Absolutely. FUKE: —ultimately implemented, and, but I guess I— VITOUSEK: No, I completely understand the question and I, you know— FUKE: Do you have a suggested condition? VITOUSEK: —\[inaudible\] a good project for sure and I think they are trying to do the right thing. I guess it would be requesting that the archaeological inventory, the County accept the archaeological inventory survey with revisions to preserve the Hō‘ea Road as requested by SHPD, and that preservation plan be prepared and accepted by SHPD and/or County Planning Department. And, honestly, I give it up to you guys to pick the date on when that would be accepted by in your, in your development plans. CHURCH: How much time do you need? How much do you think— 16 EXHIBIT B FUKE: Well, I think, you know, they still have to apply for Plan Approval, and so, you know, they are going to have to tweak some of the proposed structures that’s why, their site plan, they have to still submit, you know, as you, for the Plan Approval we need to have like a site drainage plan, they need to get a landscaping, so on and so forth, so I would think that they would be in the position to apply for the Plan Approval maybe within 45 to 60 days from now where we start. So— VITOUSEK: How about actually going out there and doing the grading that would be done for the structures? JEFFERSON: When would we like to grade? VITOUSEK: Yeah. FUKE: For the buildings. JEFFERSON: To be honest, the big thing for us is we’ve got the sugarcane growing, we’d like to juice it, so the first building we’d like to build as soon as we have permission. CHURCH: What about tying it to occupancy permit so that if the preservation plan, or however you specifically characterize it, is not issued and accepted within X days, then occupancy permit gets pulled. But you are going to get it; once the building has been constructed, you are going to get occupancy permit. And, if you add a certain amount of time to that to accomplish what you want, and you have not yet fulfilled yet, then occupancy permits get pulled. You’ll have a facility, but that kind of gives impetus for you to get this done. KEALOHA: Except that you can’t hold them hostage for government failing to— CHURCH: That’s what we are doing right now. KEALOHA: —review and process. CHURCH: That’s what we are doing right now. JEFFERSON: We want to build the farm building as soon as we can. We could have that up in, you know, two or three months. It’s just a concrete slab with a roof over it. There’s— VITOUSEK: So— JEFFERSON: —not even any wall. So we are happy to do anything, but we just don’t want SHPD to hold up the, you know, we just want to do some sugarcane. VITOUSEK: And it seems to me like in this case SHPD is not holding this up, because the County has decided to go ahead with it. \[To Mr. Darrow’s inaudible response\] What’s that? 17 EXHIBIT B DARROW: So the issue is, as we had mentioned, we do not have the expertise to accept an AIS or to say that it is, it is finaled or accepted or to ask for revisions to an AIS. We’ve never had that expertise, we currently don’t have it, we don’t have anyone on staff that’s able to do that. So we always rely on SHPD. When we’ve met with them, they’ve always said, well, the County is the final authority, and we’ve said to them we don’t have that expertise, we rely on you, there’s timeframes in place that you folks are supposed to be able to respond to these reports that come to you in a timely manner. Unfortunately, they are understaffed, so it puts everybody in this position. What might be more appropriate at this time, it sounds like what you were asking for originally is to place a condition in there – because they have submitted the AIS, it just hasn’t been accepted yet, correct? – so the next step would be that they do a mitigation plan, which would include the preservation plan. VITOUSEK: But then what happens if SHPD comes back and says— DARROW: It’s not accepted? VITOUSEK: Right, or what if they say we want all these features to be preserved? DARROW: Then at that point they’ve got to preserve them. KEALOHA: My understanding was that you received an email with informal approval? DARROW: No, they— JACKSON: Let me try to find that for you. It’s your Exhibit 12, and this was an email around mid-November between me and SHIPD staff, and at this time they already had the AIS, they had had two months already to review it, and we hadn’t heard anything from them on the outcome of review of AIS, and so this was a follow-up email. And in that email and phone discussion with SHPD, they said they had reviewed the AIS, they also reviewed a letter from Na Ala Hele and National Park Service that are included in your package. And – do you need to see it, Mike, here – and, basically, it was staff trying to get a determination on the AIS and they did not mention having issue with any of the other sites, they didn’t say, well, we really want them to preserve all of the sites; they said that the AIS appeared to be okay, but that they had the one issue with that site, 30913\[sic\], I think it is, the historic Hō‘ea Road. And that’s why this discussion took off from there. KEALOHA: So the easement, to fire a conclusion, the easement be adjusted to capture historic portion of Hō‘ea Road. JACKSON: That’s correct. So based on my conversations with Susan Lebo, the impression I got was that she was satisfied with the treatment for all of the other sites on the property, except for the historic Hō‘ea Road. And I did ask her for a follow-up letter; I said, great, you sent me an email, can we get that in writing in a letter, and she hasn’t provided that yet. So, here we are in early December, a month later, and we still haven’t received the letter. 18 EXHIBIT B UNGER: Very good, then, are there any more comments from the applicant? Any more questions from the Commissioners? CARR SMITH: Did you bring any samples? JEFFERSON: Yes. \[Laughter. Mr. Jefferson put a bottle on his table.\] UNGER: Yeah, there we go. \[Laughter.\] CHURCH: We need some glasses. UNGER: We’ll strike that from the minutes. JEFFERSON: I didn’t want \[Inaudible due to laughter\]. UNGER: Very good, thank you. You may be seated. I’d like to open up the hearing to public testimony, if there is anybody here for, to testify. Seeing none, I need a motion to close. SHIMAOKA: I motion. KEALOHA: Second. UNGER: Motion by Commissioner Shimaoka, second by Commissioner Kealoha. All in favor? COMMISSIONERS: Aye. UNGER: Opposed? \[None.\] Public testimony is closed. Commissioners, the floor is open for a motion on the second agenda item – we’ll take the second one – Applicant Kuleana Spirits Inc., SMA 18-000\[0\]69. SHIMAOKA: Yeah, I move that the application for a Special Management Area Use Permit, Docket No. SMA 18-000069, be approved based on the Planning Director’s recommendation and proposed conditions, which shall be adopted. CHURCH: I’ll second the motion. UNGER: We have a motion by Commissioner Shimaoka, second by Commissioner Church. The floor is open for discussion. And, just to clarify, the motion includes modifying Item 7 and Item 9 to change to prior to issue of occupancy— SHIMAOKA: That’s correct. 19 EXHIBIT B UNGER: —also to move a building over as well. SHIMAOKA: Correct. UNGER: Okay. VITOUSEK: Does that also include the request to include a mitigation plan for the Hō‘ea Road as recommended by SHPD? UNGER: I didn’t hear that in the recommendation, but it can be – or was that in the— SHIMAOKA: I thought that was included. UNGER: Was that included in the condition? JACKSON: No. SHIMAOKA: No? UNGER: No, it’s not included. VITOUSEK: We would be adding on the, adding to the conditions that, one of the conditions would be the requirement for a preservation plan or a mitigation plan. SHIMAOKA: Can we include that then in the motion? UNGER: Right, okay. SHIMAOKA: Do I have to state it or, as is, can I just include that mitigation, right? On the Hō‘ea Road, right? UNGER: Right. SHIMAOKA: Correct, okay. KEALOHA: Could you repeat that again? Not, we didn’t, we said “submission,” not “approval,” correct? UNGER: We are hearing now, we are listening now to what the, what the proposal is, or what the proposed motion is. SHIMAOKA: That’s a condition that we are asking that be meant, correct? 20 EXHIBIT B VITOUSEK: Well, we haven’t set up a timeline for what it has to be done by. And I think that if we just put it in there that it has to be completed, we don’t have to say prior to the approval or prior to a Plan Approval or anything like that. FUKE: Mr. Chairman— UNGER: Go ahead. FUKE: As I mentioned earlier, the applicant, you know, because SHPD had already recommended via the email that the Hō‘ea Road be preserved, so we are going to widen the easement to include that. So, Commissioner Vitousek is suggesting we should have like a mitigation plan, so, and I mentioned earlier that, and Mr. Jefferson confirmed, that he had no objection in preparing and submitting a mitigation plan that reflects as such, you know, to SHPD and the County prior to issuance of a Final Plan Approval, which would be within like the next 45 to 60 days from now, and just it be silent relative to its implementation. SHIMAOKA: That’s what I thought I heard, so— VITOUSEK: Yeah, that makes sense. SHIMAOKA: Okay, so, do I include that in the motion? VITOUSEK: I mean, to me, honestly, it doesn’t even need to be, the submittal of it doesn’t need to be tied to Plan Approval necessarily; it’s just a condition that this preservation plan be prepared and accepted, you know— FUKE: Merry Christmas. UNGER: So, let’s modify – do we have a motion on the table? We have a motion that has been seconded, so we need, so you need to propose an amendment to your motion. SHIMAOKA: Then I’ll propose an amendment to the motion to include the mitigation process to, with the Hō‘ea Road – correct? – that you folks have already committed to submitting. Okay? JACKSON: May I make a comment? UNGER: Sure. JACKSON: If, if the County Council needs to accept the dedication or the grant of easement to include the historic Hō‘ea Road, we would recommend that any preservation or mitigation requirements be identified before the County Council accept the grant of easement. So, that may mean that those mitigation plans need to be done prior to Certificate of Occupancy because, currently, Condition 4 asks that the grant of easement be provided – actually, currently, Condition 4 says that the grant of easement shall just be granted prior to Final Plan Approval. So 21 EXHIBIT B we would want something in the condition to say that prior to Certificate of Occupancy, the easement is accepted by the County Council and the mitigation measures are identified. FUKE: Can I comment on that? Sorry. UNGER: That’s all right. We’ve got to get this right. FUKE: If that’s the condition, then it basically goes back again to kicking the ball back up to SHPD, because we don’t know when it’s going to accept it and then we don’t know when the applicant can do the mitigation before the Council can accept. And, as Mr. Jefferson had indicated, just to do that, structures probably are going to take only 60 days to, you know, just be operational. So, quite honestly, it’s not going to work. CHURCH: Yeah, this is kind of a chicken-and-the-egg, what comes first. Yeah, I don’t see how it can work, either. VITOUSEK: You know, to me, it’s not something that is a timing issue; it shouldn’t, you know, impact the timing of the project because it’s not going to be impacted by the project, and it’s just something that I think adding onto as a condition saying that this has to be done, you know, at some point to be in compliance with the overall plan is adequate, and, to me, I don’t know that we need to tie it to any use of the property for their purposes. CHURCH: What I heard is that Steve has crops or something that need to be harvested, that there is a time, there is a time fuse on that – is that correct? – to get, yeah, so I think there is— KEALOHA: And, more importantly, the County is not going to accept the easement without understanding the mitigation requirements, so that’s going to— CHURCH: But the way— KEALOHA: —postpone everything. CHURCH: —the way it reads right now, there is no tie to it; it just leaves what’s in place, so the reference is to the— KEALOHA: But there is a time to what the County can accept. UNGER: Yeah, this is not a Commission decision, just the County saying we are not going to accept it without knowing what the mitigation details are, so, I mean— KEALOHA: So the easement has to occur before occupancy, and if you need the mitigation to occur before occupancy, everything gets pushed back until the mitigation is accepted— UNGER: So it sounds like— KEALOHA: —and the easement is completed. 22 EXHIBIT B UNGER: —sounds like construction can start but occupancy cannot happen until the mitigation, the easement is accepted by the County and the mitigation plan is understood and accepted. CHURCH: Mr. Fuke— JACKSON: That’s what the County would recommend. CHURCH: —you’ve been in this situation before, you must be able to suggest a resolution to this, huh? FUKE: So, given that then, you know, Condition 4 of the SMA permit can read like, you know, how it’s generally structures like, “Prior to issuance of Final Plan Approval, the applicant shall submit a grant of easement agreement to the County of Hawai‘i for pedestrian and vehicular public access along the makai property boundary to align with the historic Hō‘ea Road,” etcetera, etcetera, and just leave it there, period, because then once they get submitted to the County, the County on its own, and knowing full well that the other condition is that the applicant would submit the mitigation plan prior to issuance of Plan Approval, so everybody would know what the proposal is, so at that point in time the County Council can deem, like, should we accept the easement now or should we wait until the proposed mitigation plan outline and, you know, the soon-to-be-approved SHPD mitigation plan, is approved. And they can wait, they can decide to wait and choose until the mitigation is done or just accept it now and assume the responsibility to mitigate in accordance with the approved mitigation plan. VITOUSEK: That makes sense. So the obligation is to submit— FUKE: Correct. VITOUSEK: —not for it to be approved. FUKE: Correct. VITOUSEK: That makes sense to me. UNGER: County, you are okay with having it submitting to you with no deadline as far as waiting for mitigation, how to mitigate? I mean, essentially, then the ball would be in your court to deal with it as the procedure continues. JACKSON: Sure. UNGER: Yeah, okay. JACKSON: See what the County Council does with it. UNGER: Right. Commissioner Shimaoka, if you would please amend your motion accordingly – or, Commissioner Carr Smith, do you have a comment? 23 EXHIBIT B CARR SMITH: I just had a, just a quick comment, because your motion was just about the SMA, right? UNGER: Yes— SHIMAOKA: Right. UNGER: —this is, this is SMA. CARR SMITH: But you made a comment to add in those changes on Item, Conditions 7 and 9, but those are in the Special Permit, not in the SMA. UNGER: Okay, good point. SHIMAOKA: Yeah. UNGER: So we— SHIMAOKA: This is just the SMA. UNGER: This is just the SMA, okay, good point, so we’ll take— SHIMAOKA: It should just— KEALOHA: As is. SHIMAOKA: As is. UNGER: As is. SHIMAOKA: And do the changes in the Special Permit, correct? UNGER: Right. SHIMAOKA: Okay. KEALOHA: So your original— SHIMAOKA: Just, just approving— KEALOHA: —motion to— SHIMAOKA: —the application for the SMA. KEALOHA: As adopted. 24 EXHIBIT B SHIMAOKA: As adopted. FUKE: But Condition 4 would have to be slightly amended— SHIMAOKA: Correct. FUKE: —on the SMA. SHIMAOKA: Correct. UNGER: So you’re going to, so we are on the SMA now, so have to slightly amend your motion to— SHIMAOKA: Just to include that Condition 4, correct? UNGER: Condition 4 is there now. You need to modify— SHIMAOKA: Modify Condition 4. FUKE: There should also be a new condition like prior to issuance of Final Plan Approval, that the archaeological mitigation plan pursuant to the un-adopted archaeological inventory survey shall be submitted to the Planning Department and SHPD, period. SHIMAOKA: Correct, okay. FUKE: So that would be a new condition. SHIMAOKA: Okay, let’s include it in this SMA— FUKE: Correct. SHIMAOKA: —correct? Okay, so I would submit just as you iterated, because I cannot remember from time to time what the next statement is. This is getting too long and drawn out. I know why Nancy didn’t take on this one now. We are okay with that? Okay. UNGER: Yeah. SHIMAOKA: Okay. UNGER: So we have a motion on the table for discussion. CHURCH: Was there a second? Do we need a second? UNGER: I thought we had Commissioner— 25 EXHIBIT B CARR SMITH: It’s amended, right? Is it amended? UNGER: As amended. CARR SMITH: Four is amended and then the new one is added, so— UNGER: Yes. VITOUSEK: So, is this a new motion to second— SHIMAOKA: No. VITOUSEK: Or is it— UNGER: No, we— VITOUSEK: Old second to, okay. UNGER: Yeah, we are good. JACKSON: Commissioner Church seconded the original— UNGER: Okay, so we have a second and that has not changed, so the motion has been made and seconded. VITOUSEK: Discussion, question? UNGER: Yeah, discussion. VITOUSEK: The realignment of the eight acres that would be covered within the – is that the Special Permit or is that SMA? \[Someone whispered, “Special Permit.”\] Okay, we can talk about that under the Special Permit section. UNGER: So, roll call. JACKSON: Commissioner Shimaoka? SHIMAOKA: Aye. JACKSON: Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. 26 EXHIBIT B JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Vitousek? VITOUSEK: Aye. JACKSON: And Chair Unger? UNGER: Aye. JACKSON: Okay, the motion carries, six-zero. UNGER: Moving right into Agenda Item 3. Unless the applicant or County has any further discussion or Commissioners have any further discussion, I’d like to call for a motion. Seeing no further discussion, so, we need a motion for the application for a Special Permit to allow the development of the micro-distillery. SHIMAOKA: Okay, I’m going to move that the application for a Special Permit, No. SPP 18-000197, be approved based on the Planning Director’s recommendations and proposed conditions, with amendments, and this includes the mitigation for the, or submitted, for the Hō‘ea Road, is that correct? UNGER: This will include changes to Item 7, prior to issuance of occupancy— SHIMAOKA: Seven, Correct. UNGER: Nine— SHIMAOKA: Nine. UNGER: —prior to issuance of occupancy. And moving the structure. I believe SMA was, dealt with the Hō‘ea Road preservation— SHIMAOKA: Okay, so, move the structure down. UNGER: —so we are just dealing with the Special Permit. SHIMAOKA: Okay, so, Item 7 and Item 9, and then the moving of the structure down to makai side of the property, correct? UNGER: Ka‘ū side, south side. SHIMAOKA: Ka‘ū side, Ka‘ū side, south side, sorry, west, okay. That covers it? 27 EXHIBIT B UNGER: Yup. KEALOHA: I’ll second. UNGER: We have a motion by Commissioner Shimaoka, second by Commissioner Kealoha. Floor is open for discussion. Seeing no discussion— VITOUSEK: Actually, I just, one— UNGER: Oh, we have a— VITOUSEK: —one question on the relocation of the building. So, the public information that was gone out was reflecting this site plan, right? FUKE: Right. VITOUSEK: And what was, you know, agendized was this site plan. Is there any kind of Sunshine Law that would prevent us from, you know, because this wasn’t gone out to the public, this proposed alignment of the Special Permit, that prevents us from altering it like that? UNGER: I think we are, this is a – SMA is not a recommendation, but, we have final authority on SMA – I think this is a recommendation to the County Council. Is that correct or is this— JACKSON: This is an approval of the Special Permit. UNGER: Right, so, so there is some time, it sounds like, between now and when the County Council— JACKSON: No. No, you are the final authority on the SMA and the Special Permit. UNGER: Oh, we are, for the Special Permit as well. FUKE: Can I just make one comment on that. There is a question as far as like, you know, the relocated building, you know, proposed relocated building is actually one that requires a Special Permit, because this property is zoned Ag and then that structure is going to be used to house agricultural equipment, plus they’re going to be crushing the cane, which is grown on the property, which is an agricultural activity. So it could qualify under the agricultural definition as an agricultural minor processing as a permitted use. And, perhaps, staff can attest that. SHIMAOKA: And that’s included in this Special Permit? Is that what you are saying? FUKE: Well, we wanted to err on conservatism, so we had put everything in, right? SHIMAOKA: Okay. 28 EXHIBIT B UNGER: Still that motion on the table, so— CARR SMITH: I was just curious. Is there any reason for us not to just be working on what is proposed here, and then any changes come through the Plan Approval process when they amend their site plan and— UNGER: Yeah, that would be a question— CARR SMITH: —do we really need to be a part of it, I guess, is my question. UNGER: —that would be a question to staff. Can we approve without moving the building due to concerns of public notice and let Planning Department deal with it administratively? JACKSON: Well, the permit has Condition 2 right now that says that the improvements have to be done as substantially represented in the plans and details provided to the Commission. UNGER: Substantially represented. JACKSON: Yes. So, the reason that the Department didn’t have much issue with relocating the building is because, as Mr. Fuke said, the crushing and pulping of the sugarcane would typically be considered like a minor ag processing facility anywhere else in the ag district, and so that’s typically permitted administratively just by Plan Approval; so the idea that they would move the building closer to that other dwelling isn’t really of concern because it’s not unlike any other permitted use in the agricultural district. UNGER: I got it. JACKSON: The noise levels, the smells, they are similar to anything else that can be permitted in that entire area. UNGER: Okay, and still in the spirit of the application, their request. JACKSON: Yeah, it’s still part of the overall distilling operation, so we don’t want to look at it completely independent; it still would be good to cover under the Special Permit. UNGER: Okay. And it is now with the motion, all right. No other, is there any other discussion? VITOUSEK: Just want to see if we’ve got an answer on the Sunshine— KIM: It would actually, if you are going to really go through the process and if it wasn’t falling within that exemption, then I would say actually we would need to give notice again and have another hearing. But, because it sounds like it falls within an exemption basically to the Special Permit, I think we are okay for this building because of its agricultural use, yeah. 29 EXHIBIT B JACKSON: So, just to clarify, can we add a sentence in Condition 5, I think is that what you are suggesting that basically says that the eight-acre area, eight-acre permit area shall be realigned to include the ag storage crushing building, which will be located on the southeast corner of the property. FUKE: West. JACKSON: Southwest. Thank you. CARR SMITH: To me that sounds like you’re adding another building. You didn’t say anything about moving. JACKSON: Relocating, then. Yeah. Okay. VITOUSEK: And then, you know, I guess going back to Chair Unger’s question about whether we need to do that as Commission or whether that can be done administratively after the Special Permit has been issued because of the fact that this is a conforming use within the agricultural district. Because, you know, under Sunshine Law this is what was issued to the public, this site plan is what they consulted with the public on, this is a site plan that came in, and, you know, if they don’t need to, they don’t need to have a special approval to move it, then, you know— JACKSON: I suppose they don’t need a special approval to move it, if the Commission is in agreement, because re-reading Condition 2 it does say that the development shall be conducted in a manner substantially representative of plans, details in the application and representations made before the Leeward Planning Commission. So if the Commission is aware of moving the building and is in agreement of that— CHURCH: It seems to me there is no change in the scale or scope of the operation. JACKSON: —that there is no need to change the condition. UNGER: And that’s a final decision that Commissioner Shimaoka needs to make as part of his motion. SHIMAOKA: My understanding, again, is because it’s still within the agricultural confines, right, we’re using it for agricultural use, so there is no reason. FUKE: Correct. So if they had proposed to relocate the tasting facility or the distillery, I think that could be like questionable, but, you know, these are like the agricultural storage and the crushing of whatever is growing on the premises, so. JACKSON: Commissioner Vitousek, are you suggesting that after should permit be approved, that the Director send a letter to that neighbor and see if it’s, if they are oaky with moving of the building, and if they are not, keep it in its current position, or? VITOUSEK: No, not necessarily. I guess basically what I’m just trying to make sure is that, you know, we, we are reviewing what we are allowed to review, and that, you know, if, if this 30 EXHIBIT B was presented to the public one way that we review that when it came in, and that, you know, there is a change from what is presented in the application, and, you know, from my understanding it’s not a change that would be, you know, out of alignment with the zoning, and that it may not even be needed as part of the Special Permit, but, you know— UNGER: So, yeah, and Corporate Counsel has addressed that, so I think it sounds like we are okay with the motion as it sits. VITOUSEK: Okay. CARR SMITH: I’m sorry to beat this up, but, so the dotted line area where the improvements are, isn’t that the area of the Special Permit? FUKE: That was the— CARR SMITH: On, on the right? FUKE: Yes. CARR SMITH: So if you move the building over to the left outside of the dotted line area, is that still a part of the Special Permit area? FUKE: Well— CARR SMITH: Or that’s what we are saying is that it can be there, so then it’s not a part— FUKE: Correct, because it’s an agricultural activity, correct. And, conceivably, that what they are proposing in that building on the, you know, most mauka end is really like not, a Special Permit is really not needed for that activity; you need it for the distillery, you definitely need it for the visitor center. CARR SMITH: Got it. So it’s a separate permit that they would have to get for that building outside of the Special Permit area. FUKE: So— JEFFERSON: Which is why we didn’t tell them we were moving the building two months ago. FUKE: Until yesterday. But, anyway, like a long story make short, so if the Special Permit is approved as such with the eight-acre as kind of like clearly identified, and then in response to – I think that Mr. Vitousek brought up a very legitimate concern, because that was a notice issue. So it’s conceivable that they could apply for a separate building permit as like a farm storage building into the area where they ultimately want to do it and choose not to build where they originally planned to do. VITOUSEK: And we could approve this as is now and they could still do that, right? 31 EXHIBIT B FUKE: Yeah. CARR SMITH: They have to get another permit. VITOUSEK: I think they would – you would have to get another building permit anyway, correct? Right? FUKE: Correct, yes. VITOUSEK: Correct, so you have to get a building permit where it is now, and you have to get a building permit where would go anyway; so it wouldn’t be anything additional to come back. Would you – you talked before about having it be like another separate area that’s included in part of the Special Permit or would it be one contiguous eight-acre piece you redesign the line for? FUKE: If, if the conditions were amended, I probably would recommend that it be eight acres but not necessarily contiguous. VITOUSEK: So, I mean, just from my perspective, it just seems cleaner for us to approve the plan as applied for with the applicant’s site plan, and then if they don’t need to have a Special Permit to build it where they eventually want to do it anyway, then they can still do that, and we are approving what was publically vetted through the process. So that would be my recommendation. UNGER: Okay, so we have a motion on the table that doesn’t include that. So, Commissioner Shimaoka, you can decide if you’d like to include that, exclude that, leave your motion as is, and we vote, and if it doesn’t pass, then Commissioner Vitousek or another commissioner could make a motion to that, so. SHIMAOKA: Well, this is where I have to refer to our legal advisor on this. Is it going to come back and, you know, bite us in the ‘ōkole? KIM: There is a higher likelihood of it coming back and biting us, if we don’t comply with public notice requirements. SHIMAOKA: Okay, so, let’s, let’s take out the inclusion of the moving of the building, and vote as is without that, you know. So I amend my motion to just exclude the moving of the building. UNGER: We need a second. VITOUSEK: Second. UNGER: We have a motion by Commissioner Shimaoka, second by Commissioner Vitousek. No other comment, roll call. JACKSON: Commissioner Shimaoka? 32 EXHIBIT B SHIMAOKA: Aye. JACKSON: Commissioner Vitousek? VITOUSEK: Aye. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: And Chair Unger? UNGER: Aye. JACKSON: Okay, the motion carries, six-zero. UNGER: You will be notified in writing of the Commission’s decisions. Thank you for your presentation. Good luck with your project. The discussion ended at 12:45 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 33 EXHIBIT B