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1ST Addition to PC Agenda 2, 5-24-2022 4444 Rice Street, Suite A473 • Līhu‘e, Hawai‘i 96766 • (808) 241-4050 (b) An Equal Opportunity Employer PLANNING COMMISSION HELEN COX, CHAIR FRANCIS DEGRACIA. VICE CHAIR GERALD AKO, MEMBER DONNA APISA, MEMBER MELVIN CHIBA, MEMBER LORI OTSUKA, MEMBER KAAINA S. HULL, CLERK OF COMMISSION MEMORANDUM DATE: May 23, 2022 TO: Planning Commission FROM: Clerk of the Commission SUBJECT: 1st Addition to AGENDA 2, May 24, 2022 Planning Commission Meeting F. HEARINGS AND PUBLIC COMMENT 1. New Agency Hearing a. HPM BUILDING SUPPLY 2. Memorandum to the Planning Commission. DEREK S.K. KAWAKAMI, MAYOR MICHAEL A. DAHILIG, MANAGING DIRECTOR 4444 Rice Street, Suite A473 • /ŞKX¶H+DZDL¶L• (808) 241-4050 (b) $Q(TXDO2SSRUWXQLW\(PSOR\HU DEPARTMENT OF PLANNING KA‘ŅINA HULL, DIRECTOR JODI A. HIGUCHI SAYEGUSA, DEPUTY DIRECTOR MEMORANDUM DATE: May 23, 2022 TO: Honorable Planning Commission Chair Helen Cox and Members of the Kauai Planning Commission FROM: Ka‘aina S. Hull, Director of Planning RE: Additional Public Testimony Attached for the Planning Commission’s consideration: 1.HPM Building Supply’s Memorandum in Opposition to Intervene on behalf of the Community of Poipu Aina Estates 2.Power Point slides for presentation to Commission members, on behalf of HPM’s representative. 3.Petition to Intervene from Damon Key Leong Kupchak Hastert concerning in the Matter of the Application for HPM Building Supply, received on May 23, 2022, 8:58 a.m. Kaaina Hull Digitally signed by Kaaina Hull Date: 2022.05.23 13:34:49 -10'00' F.1.a.2. May 24, 2022 CADES SCHUTTE A Limited Liability Law Partnership MAUNA KEA TRASK P.0.Box 1205 Lihu'e,HI 96766 Telephone:(808)521-9297 Fac8imile:(808)540-5015 Email:mtrask(S),cades.com Attomeys for Applicants HPM BUILD1NG SUPPLY 8418 .'••,-/.oi:Kaua-•"-•'NNfNGDEP') 22 nWl9 l\6:l: RECEiw... BEFORE THE PLANNING COMMISSION OFTHE COUNTYOFKAUA'I In the Matter of the Application Of HPM BUILDING SUPPLY,for a Special Pennit,Use Pennit and Class IV Zoning Pennit, for Real Property Situated at Pa'a,District of Koloa,Kaua'i,Hawai'i,and Being a Portion of that Certain Parcel of Real Property Identified by Kaua'i Tax Map Key No.(4)2-9-001:001,and containing an area of 1,076.073 acres,more or less. SPECIAL PERMIT SP-2022-1 USE PERMIT (U)-2022-8;and CLASS IV ZONING PERMIT Z-IV-2022-8 HPM BUILDING SUPPLY'S MEMORANDUM IN OPPOSITION TO THE PETITION TO INTERVENE ON BEHALF OF THE COMMUNITY OF POIPU AINA ESTATES;DECLARATION OF COUNSEL;EXHIBITS "A"-"C"; CERTIFICATE OF SERVICE HPM BUILDING SUPPLY'S MEMORANDUM IN OPPOSITION TO THE PETITION TO INTERVENE ON BEHALF OF THE COMMUNITY OF POIPU A1NA_ESTATES Comes now,HPM BUILDING SUPPLY ("HPM"or "Applicant"),who,by and through its undersigned attomeys,submits this Memorandum in Opposition ("Opposition")to the Community Association of Poipu Aina Estates ("Poipu Aina")Petition to Intervene (the "Petition"). For the reasons stated herein,Poipu Aina's Petition does not comply with the legal requirements goveming Petitions to Intervene as provided in the Rules ofPractice and Procedure of the Kauai Planning Commission (as amended)("Commission Rules")and therefore must be denied.This Opposition is brought pursuant to Commission Rules 1-4-1,1-4-2,1-4-3,1-4-4,1-4- 6,l-4-7,and 1-6-11 (a). I.INTRODUCTION. On May 9,2022,Poipu Aina,c/o Jeff Masters,submitted a one-page document titled "Petition to Intervene".Exhibit "A".The Petition does not comply with the requirements goveming form and content of Petitions to Intervene in Chapter 4 of the Commission Rules. Indeed,the Petition is in the fonn of public testimony against HPM's Application for Special Permit SP-2022-1,Use Pennit (U)-2022-8,and Class IV Zoning Pennit Z-IV-2022-8.The Petition states Poipu Aina is very concemed that HPM's facility will negatively impact the traffic,air quality,noise and view plains (sic)in and around their community.The Petition then lists twelve (12)general concems about HPM's development.The Petition is not signed by Mr.Masters,but instead by Michael Clark.The Petition does not indicate who Mr.Clark is or whether he has authority to submit the Petition on behalfofPoipu Aina. II.ARGUMENT. A.Poipu Aina's Petition is Untimely and Was Not Served on HPM. Commission Rule 1 -4-3 is crystal clear,"[t]he petition for intervention with certificate of service shall be filed with the Commission at least seven (7)days prior to the Agency Hearing for which notice to the public has been published pursuant to law."Further,Rule 1-4-3 provides that "untimely petitions for intervention will not be permitted except for good cause shown."The date of the Agency Hearing for which notice to the public has been published pursuant to law in this matter was May 10,2022.Seven (7)days prior to May 10,2022,was May 3,2022.Poipu Aina's Petition wasn't filed until May 9,2022,six days too late.Poipu Aina also failed to serve the Petition on HPM and/or HPM's counsel as required by Commission Rule 1-3-3.Declaration of Counsel at 1)5.For these reasons alone,the Petition must be denied. Further,the Petition does not explain why there is "good cause"for its late filing."Good cause"[]"depends upon the circumstances of the individual case,and a finding of its existence lies largely in the discretion ofthe officer or court to which [the]decision is committed."Doe v. Doe,98 Hawai'i at 154,44 P.3d at 1095.Thus,whether "good cause"exists depends upon the circumstances of the individual case,and whether good cause exists will "lie[]largely in the discretion ofthe []court to which [the]discretion is committed."Id. A review ofthe facts and circumstances show there is no good cause to excuse Poipu Aina's late filing of the Petition.Public notice of the May 10 Agency Hearing has been posted on the County ofKaua'i Planning Department's ("Department")website since March 24,2022,47 days prior to the May 10 Agency Hearing.Exhibit "B".Further,the Department had notice published in the newspaper on April 8,2022,a full 32 days prior to the Agency Hearing.Exhibit "C".The public notice clearly states,"Petitions for intervenor status must be submitted to the Cominission and the applicant at least seven days prior to the date ofthe hearing advertised herein and shall be in conformance with Chapter 4 ofthe [Commission Rules]."Id.at 2.Given that public notice has been available weeks prior to the Agency Hearing and given the complete lack of evidence or argument as to what would constitute "good cause"for Poipu Aina to fail to timely file and serve the Petition,the Commission must deny the Petition pursuant to Commission Rule 1 -4-3. B.Poipu Aina Provides No Evidence of Their Standina to Intervene. In order to be granted intervenor status,Poipu Aina has the burden to establish that it is a person/organization who:(1)holds interest in the land;(2)lawfully resides on the land;or (3)will be so directly and immediately affected by the proposed application that their interest in the Proceeding is clearly distinguishable from that ofthe general public.Commission Rule 1-4-1. Poipu Aina proffers no evidence to show it holds an interest in the land or that it resides on the land.Indeed,Poipu Aina neither owns an interest in the land or resides on the land,so both the first and second bases to grant intervention fail.Declaration ofCounsel at T|6. As to the third basis to grant intervention,Poipu Aina states it is "very concemed that the HPM facility will negatively impact the traffic,air quality,noise and view plains (sic.)in and around our community."Exhibit A.However,Poipu Aina does not indicate where their community is located or how HPM's facility will "so directly and immediately"affect them so that their interest in the Proceeding is clearly distinguishable from the general public.Indeed,the concems raised in the Petition are the same as those general concems raised by all other members ofthe public who voiced their concems about HPM's facility and as such Poipu Aina's interests are indistinguishable from that ofthe general public . Poipu Aina,as the party initiating consideration of its Petition,has the burden of proof, including the burden ofproducing evidence as well as the burden ofpersuasion that it satisfies the intervention requirements ofCommission Rule 1-4-1.Commission Rule 1-6-17 (b).Based upon the complete lack of evidence to sustain a finding that Poipu Aina has standing,the Petition must be denied. C.The Petition Does Not Comolv With Commission Rule 1-4-4. Commission Rule 1-4-4 mandates that every petition to intervene state:(1)The nature of Petitioner s statutory or other right;(2)The nature and extent of Petitioner's interest and if an 'HPM notes that although testimony against the proposed project was submitted,the majority of the public testimony submitted was in support ofthe project. affected property owner,provide the Tax Map K.ey description of the affected property;(3)The specific issues to be raised or contested by the Petitioner in the Contested Case hearing;and (4) The effects ofany decision in the Proceeding on Petitioner's interest. The Petition does not contain any of the aforementioned four categories of infonnation required by Commission Rule 1-4-4 (1)-(4).Poipu Aina does not state the nature oftheir statutory or other rights.Poipu Aina does not state the nature and extent of its interest,nor does it provide that Tax Map Kay description ofthe affected property(ies).Poipu Aina does not state the specific issues it will raise in the contested case.And Poipu Aina does not state the effects of any decision in the Proceeding on its interest.As such,the Petition must be denied for failure to comply with Commission Rule 1-4-4 (1)-(4). Commission Rule 1 -4-4 also provides that,if applicable,the Petition shall also make reference to the following:(5)Other means available whereby Petitioner's interest may be protected;(6)Extent Petitioner's interest may be represented by existing parties;(7)Extent Petitioner s interest in Proceeding differs from that of the other parties;(8)Extent Petitioner's participation can assist in,development of a complete record;(9)Extent Petitioner's participation will broaden the issue or delay the Proceeding;and (10)How the Petitioner's intervention would serve the public interest. Due to the insufficiency ofthe Petition,HPM does not know ifthe information contained in Commission Rule 1-4-4 (5)-(10)is applicable.Nonetheless,Poipu Aina does not include any of the aforementioned information in the Petition,so to the extent that such infonnation is applicable,Poipu Aina has also failed to include the required information contained in Commission Rule 1-4-4 (5)-(10)and the Petition must be denied on that basis as well. D.Poipu Aina Did Not Pay the Reauired Filins Fce. Commission Rule 1 -4-6 requires petitions for intervention be accompanied by a filing fee of $25.00.The Petition was not accompanied by the $25.00 filing fee and thus the Petition must be denied.Declaration ofCounsel at ^[7. III.CONCLUSION. For the reasons sated above,the Commission must deny Poipu Aina's Petition to Intervene. However,HPM assures the Commission that despite the required denial ofPoipu Aina's Petition, HPM is committed to being a good tenant ofthe K.oloa district and working with all members of the public to address their concems to the maximum extent possible.HPM's intent is to benefit Kauai's community,and HPM understands that begins with being a good neighbor to all within the Koloa district. DATED:Lihue,Kauai,Hawaii,May 19,2022. CADES SCHUTTE LLP A Limited Liability Law Partnership Attomeys for Applicant HPM BUILDING SUPPLY BEFORE THE PLANNING COMMISSION OFTHE COUNTY OF KAUA'I In the Matter of the Application Of HPM BUILD1NG SUPPLY,for a Special Permit,Use Permit and Class IV Zoning Permit, for Real Property Situated at Pa'a,District of Koloa,Kaua'i,Hawai'i,and Being a Portion of that Certain Parcel ofReal Property Identified by Kaua'i Tax Map Key No.(4)2-9-001:001,and containing an area of 1,076.073 acres,more or less. SPECIAL PERMIT SP-2022-1 USE PERMIT (U)-2022-8;and CLASS IV ZONING PERM1T Z-IV-2022. DECLARATION OF COUNSEL DECLARATION OF MAUNA KEA TRASK I,MAUNA KEA TRASK,declare as follows: 1.I am the attomey for HPM BUILDING SUPPLY,Applicant in the above-captioned matter,and make this declaration based on personal knowledge. 2.Attached hereto as Exhibit "A"is a true and correct copy of the Community Association ofPoipu Aina Estates'Petition to Intervene (the "Petition"). 3.Attached hereto as Exhibit "B"is a true and correct copy ofa screen shot ofthe Planning Department's webpage showing that public notice for HPM's May 10,2022 agency hearing was posted on March 24,2022. 4.Attached hereto as Exhibit "C"is a tme and correct copy of the Planning Department's Public Notice ofthe HPM May 10,2022 Agency Hearing. 5.The Petition was filed on May 9,2022,and was not served on myselfor my client. 6.I have reviewed County ofKaua'i real property tax records,spoken with authorized representatives ofMahaulepu Fann LLC -the lessor and fee simple owner ofTax Map Key Parcel No.(4)2-9-001:001 (the "land"),and conferred with my client,and the Community Association ofPoipu Aina Estates neither owns an interest in the land nor resides on the land. 7.On May 16,2022,I spoke with Dale Cua,Planner IV of the County of Kaua'i Planning Department,and he confinned that the Community Association of Poipu Aina Estates did not submit a $25.00 filing fee with their Petition to Intervene. I declare under penalty ofperjury that the foregoing is true and correct. DATED:Lihu'e,Hawai'i,May 19,2022. COUNTYnFKAUAI '22 MAY-9 P 2 32 PLANNING DF.PT. Community Assodation of Poipu Aina Estates C/0 Jeff Masters P.0.Box 238 Koloa,Hl 96756 May 9,2022 Kauai County Planning Department 4444 Rice St,Suite 473 Lihue,Hl 92677'el&T~!0^' RE:CLASS IV ZONING PERMIT (Z-IV-2022-8),USE PERMIT (U-2022-8)and SPECIAL PERMIT (SP-2022-1)to operate a construction material manufacturing facility on a parcel situated immediately adjacent to the Old Koloa Sugar Mill site in Koloa,along the eastern side of Ala Kinoiki,approximately 3,300 feet west of the Weliweli Road/Ala Kinoiki intersection,further identified as Tax Map Key:2-9-001 :001,and affecting a 3-acre portion of a larger parcel. Petition to Intervene We respectfully requestthatyou acceptthis Petitionto Intervene on behatfofthe CommunityofPoipu Aina Estates. We areveryconcernedthatthe HPMfacilitywlllnegativelylmpactthetraffic,airquality,noise and view plains in and around our community.HPM asserts Ihat there will be little to no impact in these areas but we disagree.Some ofour concerns are as follows: •Traffic noise of trucks on the gravel road starting as early as 6 am. •Visual impact of a large,open ended tent. «Noisecreated bythe saws and otherpowertools,trucksand equipment,especially as ourcommunityis downwind of the facility. •Lack ofsound control based on the open tent like nature ofthe structure. •Visual impact of the power lines being pulled to the facility. •Largely obstructed view ofthe sugar mill. •Decrease in property values forour community. •Increased trucking traffic on the South shore specifically the narrow,already congested streets in and around Koloa town. •The traffic assessment done by HPM was done on 12/10/21 while tourism was still significantly lower because of COVID 19. •Allowing this facility to operate along the main artery road of Ala Kinoiki,where thousands a day access the Poipu area resorts and beaches. •The letter sent by cades &schutte dated April 5,2022 to "persons listed on the current reat property assessment notice (ist within 30 feet from the subject property"did not contain accurate information on attending the Planning Commission meeting via Zoom on 5/10/22 as the zoom (ink provided was from a past meeting.This may have made it difficult for residents to attend the public hearing via zoom if unable to attend in person. •The peacefulness and beautysurroundingthe area aroundtheOld Koloa Mill that isvalued by locals and tourists alike. Sincerely, Michael Clark,member,on behalfof The Community Members of Poipu Aina Estat^EXHIBIT A Plannlng Commfsslon Arboflst Commfttee Board of Ethcs Board of Reinew Board of Water Supply Bulldlng Board of Appeals Charter Sewew Commlssion Civil Senice Commission Committee on the Status of Women Cost Control Conmission The Pfannjng Commfssion consfsts of seven (7)memberi from the publlc that are appoinied by the Mayor afid conf'fnied by th?Councii.The Plannlng Commission meets twice a month 10 hoid pubi'c hearings on ^oning and iand use permits and applicarions,aa wei!35 render (fecisioni cn ttiese matters Meeiing Ttme/Lccation 9'OOam.MEetingRoom2A/2B.2nd&41h Tuesda/of each monih. The pub!ic may altend the meeting via Zoom using the 'Z&oni link'and tstephoni?using tiie "jciin by Dhone'tcleptiona fiui'''>t,er thst M\\be provicfed on the agenda for the meeiing,The Agenda f&f the meeling will be posted in accortfante witli HR5 92. Members Contact Information Correspondence and publlc testlmonv may be sent t0- Pisnmng Coinmission c/o County of Kaoai Pianning Department 44d4 tice Sireet.Suite A473 Lihu'e.f<aua)9G766 Email.planni ngdep artment@ikaual.gov ftione [808]3^1-^050 Q_Baaus£-8,seai ch ar^ked PlannTia Lommisyon Liquor Controi Commission Open Space Commisslon Plannlr.g Cofnm.ssion Police Commi^sfon Salary Comnniaskin Click^Gm' 8uilding_Permlt&Qnljnel t.hei.i.permit.pten tracking.and inspection siatus online' Mew to permitting?Get Femn^Ung information HERE' Gsra!d Ako Subdivision Connitt^a CF'3'r Donna Apisa Mehin Ghiba Lori Otsuka Plannlng Commfssion Agenda Wtdntsciiy May ^2P2.! May 10.2022 PtannlflgCommissli Agwida Pack.et May ;.i 2022 Planning Cofnmisslon Agenda Pactet •L.<il3>t.'s.i .'J;; May 10.20U PfitiqjnB Commlsslon AgeQda t.ls'j 'O.2022 PlanninsCommission Agenda Planning Commlssfon Minutes WidnfrSday,fffb-L-sf^'5.^•,.';^ Octflber2&203l Hannlna Commlsiioo MlnutnDfUtfT Octobef26 202)Planrtifi^Ccmmisswn Minutes ORAFT Fnd£y.j5nua--;ig.3i3; Pttnt»r1i}.2(tttPtannlneConutilssiflO MlnutM Oi.'.otier '2 2021 Pldfning Commrii;c;n Minute; Public Hearlng Notlces Tuts.diy.ADnliS.202; UaK_a.2022 Ptannfng CommlMiea Pt|t)lj(,ysaflne NotiM May 24.Z0i2 PlanningC&nimissicin PuUlc HearifigNDtice tSsy^Q^JQ^Mannfng Conruiilssion )g Notlce -REV1SED May 10.2032 Pjannjng Comnilssidfi Public MearinR Notoe Moiday,,^pnn 1,203; Aprd 12.2022 Planntpg CominfSSlEUl^ ElrstAffditiOT.lo/aeQsla Apri!12.202Z Planning C^nnmissioi'i • First Addltion ;o Agenda i'.'-.:'n""?^^c-tili:20;; ApriL>2,2022 Planning Qommi' Agenda Packet April t2.2022 Planning Cf.'mr-tisstori ^gentia Packet Ffkta/far.ui'y14 203; Seplember 19._ CommlssiMi Minutes Sepiembef-23.iQ2 >Plantiing Commis^ion kllpui:es SfipKinb^f 14.;0;1 Planning Conrunluton Mlnutei °/i.]/202l PC Kl'(-;ute; ApdLU.2022 Plannlpg Ccxnmisston PuUk Hearlng^atice Apnl 11.20t2 Plarinir.g Con-.iriission Fublic HeanngNotice nuridiy.;arLiary 20,202; March 8.20?2 Planning (;pmni|ssk)n Public HeflrJpg^jotlU Maf;n 3,202^Planning Cornniission Pub!ic HMring Nctice EXHIBIT B COUNTY OF KAUAI PLANNING COMMISSION -4444 Rice Street,Suitc A473,Lihue, Kauai,Hawaii,96766,tel:(808)241-4050,email:planninedeDartment(g),kauai.gov. NOT1CE IS I1EREBY GIVEN ofan agency hearing with a public hearing and an opportunity for public testimony from all interested pcrsons to be held by the Kaua'i Planning Commission pursuant to the provisions ofSpecial Management Area Rules,Kauai County Code,Chapter 8,as amended,Hawaii Revised Statutes (HRS)Chapter 92 and 91,and the Rules ofPractice and Proccdure ofthe County of Kauai Planning Commission.Thc hearing will be held regarding the following: CLASS IV ZONING PERMIT (Z-IV-2022-8),USE PERMIT (U-2022-8)and SPECIAL PERMIT (SP-2022-1)to operatc a construction material manufacturing facility on a parcel situated immediately adjacent to the Old Koloa Sugar Mill site in Koloa,along the eastem side ofAla Kinoiki,approximately 3,300 feet west ofthc Weliweli Road/Ala Kinoiki intersection,further identified as Tax Map Key:2-9- 001:001,and affecting a 3-acre portionofa larger parcel. CLASS IV ZONING PERMIT (Z-IV-2022-9)and USE PERMIT (U-2022-9)to allow construction ofanew single-family dwelling unit on a parcel situated at the southern terminus ofLeleiona Street in Puhi,situated approximately 800 feet south of its intersection with Puhi Road and further identifiedas 1811 Leleiona Street,Tax Map Key:(4)3-3-011:003,containingatotalareaofapproximatcly 3.401 acres. SPECIAL MANAGEMENT AREA USE PERMIT (SMA(U)-2022-6,CLASS IV ZONING PERMIT (Z-IV-2022-10),USE PERMIT (U-2022-10),and VARIANCE PERMIT (V-2022-2)to allow installation ofa stealth telecommunication structure and associated equipment on a parcel situated on the makai side of Aleka Loop in Wailua,approximately 400 feet east of the Kuhio Highway/Aleka Loop intersection,further identified as 650 Aleka Loop,Tax Map Key:(4)4-3-007:028 and containing a total areaof 10.377 acres. Meeting LThu'e Civic Center,Moikeha Building,Meeting Room 2A-2B, Location:4444 Ricc Street,LThu'e,Kaua'i,Hawai'i Interactive The public may attend the meeting via Zoom using the "Zoom link"and Conference telephone using the "join by phone"telephone number that will bc provided Tcchnoloey:on the agenda for the meeting.The Agenda for the meeting will be posted in accordance with HRS 92. Webcast Meeting:https://www.kauai.govAVebcast-Meetings Date: Timc: May 10,2022 9:00 a.m.or shortly thereafter Pursuant to Hawai'i Reviscd Statiites Section 92-3.7,which codified Act 220,SLH 2021,the meetings of the County ofKaua'i Planning Commission will bc conducted as follows: •The meeting location that will be open to the public with audiovisual cormection is: o LThu'e Civic Center,MoikeTia Building o Meeting Rqom 2A-2B o 4444 Rice Street,LThu'e,Kaua'i,Hawai'i •In addition to attendance in-person,the public may also attend the meeting by phone using the "join by phonc"telephone number provided on the agenda. EXHIBIT C •The public may also attend the mccting through Zoom.Ifattending the meeting via Zoom,it shall be the responsibility of the attendee to join the meeting through the Zoom link provided via E- mail.In addition,it shall be the responsibility ofthe testifier to ensure that the Zoom software is downloaded and operational prior to the meeting.Once you sign-in for the meeting,you will receive the meeting link. o You may usc a unique identificr (i.e.,an alias name and alias email addrcss)instead ofyour real name to maintain anonymity.Please note that the unique Zoom meeting link will be sent by Zoom to the Email that was entercd at sign-in. •Also,the meeting will be live streamed and available as an archived meeting after completion at www.kauai.gov/Webcast-Meetings.Please note that thc livestream broadcast does not allow interaction between the viewer and Planning Commission.Also,video production scrvices or enhancements ofthe recorded video will not be available. •Written testimony may be submitted on any agenda item and submitted to plarmingdeDartment(%kauai.gov or mailed to the Kauai County Planning Department 4444 Rice Street.,Ste A473,Lihue,Hawaii 96766.Written testimony received by the Planning Department at least 24 hours prior to the mceting will be distributed to all Planning Commissioners prior to the mecting.Any testimony received after this time and up to the start of the meeting will be summarized by thc Clerk ofthe Commission during the meeting and added to the record thereafter. •Oral testimony will be taken during the public hearing portion of the meeting in-person at the public meeting location,via Zoom link,or using the "join by phone"number listed on the agenda. o All testifier audio and video will be disablcd until it is your turn to testify. o Per the Planning Commission's and Chairs practice,there is three-minute time limit per testifier,per agenda item. o Ifthere are temporary technical glitches during your turn to testify,we may have to move on to the next person due to time constraints;we appreciate your understanding. •If any major and insurmountable tcchnical difficulties are encountered during the meetings,the Planning Commission will continue all matters and reconvene at the next schedulcd Planning Commission Meeting. Petitions for intervenor status must be submitted to the Commission and the applicant at least seven days prior to the date ofthc hearing advertised herein and shall be in conformance with Chapter 4 ofthe Rules ofPractice and Procedure ofthe Planning Commission.A copy ofthe proposal will be emailed to any interested person who requcsts a copy.Please submit your request to the Planning Department. KAUAI PLANNING COMMISSION,Helen Cox,Chairperson,By Kaaina S.Hull,Clerk of the Commission. NOTE:IF YOU NEED AN AUXILIARY AID/SERVICE,OTHER ACCOMMODATION DUE TO A D1SABILITY,OR AN INTERPRETER FOR NON-ENGLISH SPEAKING PERSONS,PLEASE CONTACT THE OFFICE OF BOARDS AND COMMISSIONS AT (808)241-4917 OR ASEGRETI@KAUAI.GOV AS SOON AS POSSIBLE.REQUESTS MADE AS EARLY AS POSSIBLE WILL ALLOW ADEQUATE TIME TO FULFILL YOUR REQUEST.UPON REQUEST,THIS NOTICE IS AVAILABLE IN ALTERNATE FORMATS SUCH AS LARGE PRINT,BRAILLE,OR ELECTRONIC COPY. Ptiblicalion Dale:April S,2022 BEFORE THE PLANNING COMMISSION OFTHE COUNTY OF KAUA'I In the Matter ofthe Application Of HPM BUILDING SUPPLY,for a Special Permit,Use Permit and Class IV Zoning Permit, for Real Property Situated at Pa'a,District of Koloa,Kaua'i,Hawai'i,and Being a Portion of that Certain Parcel ofReal Property Identified by Kaua'i Tax Map Key No.(4)2-9-001:001,and containing an area of 1,076.073 acres,more or less. SPECIAL PERMIT SP-2022-1 USE PERMIT (U)-2022.8;and CLASS IV ZONING PERMIT Z-IV-2022- CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a copy ofthe foregoing document was served in the manner indicated below by Hand-Deliver or by U.S.Certified Mail,postage prepaid,on the following: KA'AINA S.HULL [via Hand-Delivery] Planning Director Planning Department County ofKaua'i 4444 Rice Street,Suite A473 Lihue,HI 96766 LAURA BARZILAI,ESQ. County ofKauai County Attomey's Office 4444 Rice Street,Suite 220 Lihue,HI96766 [via Hand-Delivery] Attomey for the Planning Commission COMMUNITY ASSOCIATION OF [via U.S.Certified Mail,postage prepaid] P01PU AINA ESTATES c/o Jeff Masters P.0.BOX 238 Koloa,HI 96756 DATED:Lihue,Kauai,Hawaii,May 19,2022. CADES SCHUTTE LLP A Limited Liability Law Partnership MAUN~A~KEA~FRAS^J Attomeys for Applicant HPM BUILDING SUPPLY 6563546.v2 HPM Building Supply Kōloa Kaua‘i Truss Facility Providing a benefit and service to the community of Kaua‘i and local union contractors and members. May 24, 2022 HPM –100 Years of Commitment and Service 1921 Founded by issei Kametaro Fujimoto and Sanzo Kawasaki 1941 Navy assumes control of inventory, operations and employees 1946 Tsunami 1959 Employee profit sharing 2006 100% employee-owned 2011 Expands to Kauaʻi 2018 Kīlauea volcano eruption and HalePlus |2 Serving the Community “[HPM] has been instrumental in keeping prices down for Kauai Habitat for Humanity at levels that our low-income homebuyers can truly afford.” “HPM supports not only Kauai Habitat, but also all four Habitat affiliates in Hawaii.” “We sorely need competitive options for wood trusses as well as options to streamline our efforts through the use of wall panels and other products for affordable residential construction.” “HPM has high ethical standards and the Fujimoto family honors their community commitments.” Kaua‘i Habitat for Humanity April 30, 2022 written testimony. |3 Truss Facility Location |4 Kōloa Mill Site ●Used for “industrial” purposes from 1912 to the present. ●Identified as a light industrial site in the Kaua‘i Kakou General Plan (2018). ●Location of the future Kōloa-Po‘ipū Regional Wastewater Reclamation Facility and Infiltration Pond. |5 Truss Facility ●H.R.S. Ch. 205 allows mills, storage facilities, processing facilities. ●High-tech/low impact operation. |6 May 2022 PRP Deception Campaign ●Facebook post linked to actionnetwork.org petition. ●“Action Network is an open platform that empowers individuals and groups to organize for progressive causes.” ●Use of actionnetwork.org to support passage of Kumu Hou project at Waikōloa, Veto of Maui Bill 148, and Veto of Maui Bill 111. ●No fast track/harm to ag. land. ●No destruction of native species. ●No tenfold increase in traffic. |7 Mahalo Of Counsel: DAMON KEY LEONG KUPCHAK HASTERT Attorneys at Law A Law Corporation GREGORY W. KUGLE 6502-0 MAX J. KIMURA 7393-0 LOREN A. SEEHASE 10414-0 1003 Bishop Street, Suite 1600 Honolulu, HI 96813 www.hawaiilawyer.com Telephone: (808) 531-8031 Facsimile: (808) 533-2242 Attorneys for THE COMMUNITY ASSOCIATION OF POIPU AINA ESTATES THE PLANNING COMMISSION OF THE COUNTY OF KAUA’I, STATE OF HAWAI’I In the Mater of the Application of HPM BUILDING SUPPLY, for a Special Permit, Use Permit, and Class IV Zoning Permit, for Real Property Situated at Pa’a, District of Koloa, Kaua’i, Hawai’i, and Being a Portion of that Certain Parcel of Real Property Identified by Kaua’i Tax Map Key No. (4) 2-9-001-001, and containing an area of 1,076.073 acres, more or less. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) SPECIAL PERMIT (SP-2022-1) USE PERMIT (U-2022-8) CLASS IV ZONING PERMIT (Z-IV-2022-8) THE COMMUNITY ASSOCIATION OF POIPU AINA ESTATES’ SUPPLEMENTAL PETITION TO INTERVENE; DECLARATION OF MAX J. KIMURA; EXHIBITS “A”; CERTIFICATE OF SERVICE DATE: May 24, 2022 TIME: 9:00 a.m. THE COMMUNITY ASSOCIATION OF POIPU AINA ESTATES’ SUPPLEMENTAL PETITION TO INTERVENE 2 The Community Association of Poipu Aina Estates (“Poipu Aina”), by and through its attorneys Damon Key Leong Kupchak Hastert, respectfully submits its Supplemental Petition to Intervene in the above-captioned proceeding, pursuant to Chapter 4 of the Rules Practice and Procedure of the Kaua’i County Planning Commission. I. INTRODUCTION Poipu Aina is an adjacent neighbor to HPM Building Supply’s proposed Construction Material Manufacturing Facility (“Facility”). Poipu Aina is directly situated downhill and downwind from the proposed Facility. On May 9, 2022, Michael Clark, on behalf of himself—whose lot is directly adjacent to the Facility—and the Community Members of Poipu Aina, submitted a Petition to Intervene in HPM’s Application for Special Permit, Use Permit, and Class IV Zone Permit (“Application”). Mr. Clark’s Petition is incorporated by reference and is attached as Exhibit A. HPM’s Facility would be a violation of the permissible uses within an agricultural district, under Hawaii Revised Statutes § 205-4.5. Its Facility would not be “directly accessory” to permitted agricultural activities identified in HRS § 205-4.5(a)(1 through 23), and therefore shall be prohibited. Agricultural districts shall be restricted to agricultural uses and the County Planning Commission may permit special uses that would promote the effectiveness and objectives of HRS § 205, i.e. support agriculture businesses in Hawaii. HRS § 205-6(c). HPM’s Facility to prefabricate trusses and houses would not support agriculture in Hawaii. It is disingenuous for HPM to claim otherwise. HPM’s Facility would be for industrial manufacturing. Let’s call a spade a spade. HPM and its Facility would not be in any shape or form consistent with agriculture. It would not 3 be in any way consistent with growing, milling, processing timber in Hawaii, not when it opens and not anytime in the near future. Euclidean Zoning enforces the separation of industrial land from agricultural and residential land, and protects the latter zones from industrial pollution. It is obvious to any reasonable person that HPM’s Facility would increase pollution—noise, air, and traffic—to the surrounding area. II. NATURE OF POIPU AINA’S STATUTORY OR OTHER RIGHT Poipu Aina has a Constitutional and Statutory Right to enforce H.R.S. § 205—the law related to the conservation, protection, and enhancement of natural resources—against its adjacent neighbor, HPM Building Supply. HPM seeks a special use permit to erect and use an industrial manufacturing facility on agricultural land which would violate Chapter 205. Article XI, Section 9 of the Hawaii State Constitution establishes the right to a clean and healthful environment which includes the control of pollution and the conservation, protection, and enhancement of natural resources. “Any person may enforce this right against any party, public or private, through the appropriate legal proceedings . . . .” Haw. Const. art XI, § 9. This right is made whole through HRS Chapter 205 which conserves, protects, and enhances Hawaii’s land and provides the appropriate proceedings for people to enforce responsible land regulation and use. The Hawai’i Supreme Court has specifically held that a community association has standing and a private right of action to enforce HRS Chapter 205 against a neighbor. County of Hawai’i v. Ala Loop Homeowners, 123 Haw. 391 (2010). III. NATURE AND EXTENT OF POIPU AINA’S INTEREST Poipu Aina is a community of 17 homeowners, whose lots are adjacent to Mahaulepu Farm LLC’s Lot, TMK (4) 2-9-001:001. See State of Hawaii Flood Hazard 4 Assessment Report Map, Exhibit E-6 to HPM’s Application, which depicts and identifies “Poipu Aina Pl.” the main road within Poipu Aina Community, directly adjacent to the Mahaulepu Farm Lot. HPM Building Supply is licensing Mahaulepu Farm’s Lot in order to erect a gigantic, 4-story tall, 100-feet wide, and 260-feet long manufacturing facility. The exact location of this manufacturing facility is situated within a half mile from Poipu Aina’s homes and lots. The increased traffic, noise, and air pollution from this manufacturing facility would substantially impact and harm Poipu Aina, which is located downwind, South-West, of the prevailing, Trade Winds that blow from the North-East direction. IV. EFFECT OF ANY DECISION IN THE PROCEEDING ON POIPU AINA’S INTEREST If the Kauai County Planning Department grants HPM’s Special Use Permit to erect a manufacturing facility and therein, conduct industrial manufacturing on what is historically designated as agricultural land, then Poipu Aina, an adjacent neighbor, will witness, feel, and suffer the brunt of HPM’s destruction, endangerment, and deterioration of natural resources. V. EXTENT POIPU AINA’S INTEREST MAY BE REPRESENTED BY EXISTING PARTIES Poipu Aina is an adjacent neighbor and its homes and lots are the closest to HPM’s proposed manufacturing facility. To our knowledge, there is no entity or persons that will be more severely affected by HPM’s industrial manufacturing facility than Poipu Aina. VI. EXTENT POIPU AINA’S INTEREST IN PROCEEDING DIFFERS FROM THAT OF THE OTHER PARTIES Poipu Aina would be closer to HPM’s industrial manufacturing facility than any other community, homeowner, and resident of the Poipu area. However, besides the proximity, 5 Poipu Aina’s interest are not that different from other parties. We believe that all of the residents living in the Poipu area will detrimentally be impacted by HPM’s noise, air, and traffic pollution. VII. EXTENT POIPU AINA’S PARTICIPATION CAN ASSIST IN DEVELOPMENT OF A COMPLETE RECORD Poipu Aina’s participation and contribution as an adjacent neighbor would develop and complete the record on this issue of HPM’s application for a special use permit to conduct industrial manufacturing on historically and appropriately designated, agricultural land. VIII. POIPU AINA’S PARTICIPATION WILL NOT BROADEN OR DELAY THE ISSUE Poipu Aina’s participation in this matter will not broaden the issues or delay the proceedings. IX. THE POIPU AINA’S INTERVENTION WOULD SERVE THE PUBLIC INTEREST It is time for the people of Kauai to make a determination and set a precedent for what kind of development and future it wants for themselves and their children. Poipu Aina is committed to fighting for all of Kauai, to ensure the right to a clean and healthful environment is protected and held sacrosanct. Poipu Aina will hold steadfast the goals of controlling pollution and conserving, protecting, and enhancing our natural resources and not sacrifice them for the low hanging fruit, which only offers short-term profit and few employment opportunities. Poipu Aina’s intervention would serve the people of Kauai by participating in the HPM’s application process and engaging in thoughtful dialogue with the parties involved. The lessons and outcomes we all learn from this matter would help us to have a brighter, greener, and more sustainable future. Thank you for your kind consideration in this matter. 6 DATED: Honolulu, Hawaii, May 23, 2022. DAMON KEY LEONG KUPCHAK HASTERT /s/ Max J. Kimura ________________________________ GREGORY W. KUGLE MAX J. KIMURA LOREN A. SEEHASE Attorneys for THE ASSOCIATION OF POIPU AINA ESTATES THE PLANNING COMMISSION OF THE COUNTY OF KAUA’I, STATE OF HAWAI’I In the Mater of the Application of HPM BUILDING SUPPLY, for a Special Permit, Use Permit, and Class IV Zoning Permit, for Real Property Situated at Pa’a, District of Koloa, Kaua’i, Hawai’i, and Being a Portion of that Certain Parcel of Real Property Identified by Kaua’i Tax Map Key No. (4) 2-9-001-001, and containing an area of 1,076.073 acres, more or less. Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DECLARATION OF MAX J. KIMURA DECLARATION OF MAX J. KIMURA I, MAX J. KIMURA, declare as follows: 1. I am an attorney with the law firm of Damon Key Leong Kupchak Hastert, attorneys for the COMMUNITY ASSOCIATION OF POIPU AINA ESTATES, and I am duly licensed to practice in all courts in the State of Hawaii. 2. I am an attorney in good standing before the Hawaii Supreme Court. 3. I make this declaration on personal knowledge, unless otherwise indicated, and am competent to testify to the matters stated herein. 4. Attached hereto as Exhibit “A” is a true and correct copy of Michael Clark’s Petition to Intervene, dated May 9, 2022. Mr. Clark is a lot owner in Poipu Aina Estates and his lot is directly adjacent to Mahaulepu Farm LLC’s lot, wherein HPM Building Supply proposes to build its large, industrial manufacturing facility. 2 5. Submitted with the foregoing Supplemental Petition to Intervene is a check for $25.00 for the filing fee sent via U.S. Mail to the Kauai Planning Department. I declare, under penalty of perjury, under the laws of the State of Hawaii that the foregoing is true and correct. Executed this 23rd day of May 2022, at Honolulu, Hawaii. /s/ Max J. Kimura MAX J. KIMURA EXHIBIT “A” Community Association of Poipu Aina Estates C/O Jeff Masters P.O. Box 238 Koloa, HI 96756 May 9, 2022 Kauai County Planning Department 4444 Rice St, Suite 473 Lihue, HI 96766 RE: CLASS IV ZONING PERMIT (Z-IV-2022-8), USE PERMIT (U-2022-8) and SPECIAL PERMIT (SP-2022-1) to operate a construction material manufacturing facility on a parcel situated immediately adjacent to the Old Kōloa Sugar Mill site in Kōloa, along the eastern side of Ala Kinoiki, approximately 3,300 feet west of the Weliweli Road/Ala Kinoiki intersection, further identified as Tax Map Key: 2-9- 001:001, and affecting a 3-acre portion of a larger parcel. Petition to Intervene We respectfully request that you accept this Petition to Intervene on behalf of the Community of Poipu Aina Estates. We are very concerned that the HPM facility will negatively impact the traffic, air quality, noise and view plains in and around our community. HPM asserts that there will be little to no impact in these areas but we disagree. Some of our concerns are as follows:  Traffic noise of trucks on the gravel road starting as early as 6 am.  Visual impact of a large, open ended tent.  Noise created by the saws and other power tools, trucks and equipment, especially as our community is downwind of the facility.  Lack of sound control based on the open tent like nature of the structure.  Visual impact of the power lines being pulled to the facility.  Largely obstructed view of the sugar mill.  Decrease in property values for our community.  Increased trucking traffic on the South shore specifically the narrow, already congested streets in and around Koloa town.  The traffic assessment done by HPM was done on 12/10/21 while tourism was still significantly lower because of COVID 19.  Allowing this facility to operate along the main artery road of Ala Kinoiki, where thousands a day access the Poipu area resorts and beaches.  The letter sent by cades & schutte dated April 5, 2022 to “persons listed on the current real property assessment notice list within 30 feet from the subject property” did not contain accurate information on attending the Planning Commission meeting via Zoom on 5/10/22 as the zoom link provided was from a past meeting. This may make it difficult for residents to attend the public hearing via zoom if unable to attend in person.  The peacefulness and beauty surrounding the area around the Old Koloa Mill that is valued by locals and tourists alike. Sincerely, Michael Clark, member, on behalf of The Community Members of Poipu Aina Estates EXHIBIT "A" THE PLANNING COMMISSION OF THE COUNTY OF KAUA’I, STATE OF HAWAI’I In the Mater of the Application of HPM BUILDING SUPPLY, for a Special Permit, Use Permit, and Class IV Zoning Permit, for Real Property Situated at Pa’a, District of Koloa, Kauai, Hawai’i, and Being a Portion of that Certain Parcel of Real Property Identified by Kaua’i Tax Map Key No. (4) 2-9-001-001, and containing an area of 1,076.073 acres, more or less. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing document was duly served upon following entities at their last known addresses and via Email, as follows: KAUAI PLANNING DEPARTMENT planningdepartment@kauai.gov 4444 Rice Street, Suite A473 Lihue, Hawaii 96766 CADES SCHUTTE Mauna Kea Trask (mtrask@cades.com) PO Box 1205 Lihue, HI 96766 Attorneys for HPM BUILDING SUPPLY 2 COX FRICKE LLP Abigail M. Holden (aholden@cfhawaii.com) Christine A. Terada (cterada@cfhawaii.com) 800 Bethel Street, Suite 600 Honolulu, HI 96813 Attorneys for PACIFIC RESOURCE PARTNERSHIP DATED: Honolulu, Hawaii, May 23, 2022. DAMON KEY LEONG KUPCHAK HASTERT /s/ Max J. Kimura ________________________________ GREGORY W. KUGLE MAX J. KIMURA LOREN A. SEEHASE Attorneys for THE COMMUNITY ASSOCIATION POIPU AINA ESTATES