BOARD OF WATER SUPPLY
COUNTY OF MAUI
OVERSIGHT COMMITTEE MEETING

  

Taken at the David Trask Building, Conference Room 207,
Wailuku, Maui, Hawaii, commencing at 9:00 a.m. on
August 10, 2001 pursuant to Notice.

REPORTED BY:  GLORIA T. TAVARES, RPR/CSR #262

ATTENDANCE - Board of Water Supply Meeting, August 10, 2001

Members present:      
Michael Nobriga, Chair
Kent Hiranaga
Clark Hashimoto
Jonathan Starr
Orlando Tagorda
Howard Nakamura

Staff present:        
David Craddick, Director
George Tengan, Deputy Director
Mike Quinn, Finance
Howard Fukushima, Corporation Counsel
         
IWADO COURT REPORTERS, INC.

                             * * *

CHAIRMAN NOBRIGA:  This is Mike Nobriga.  I'm going
to call to order the oversight committee of the Board of Water
Supply.  It's 9 a.m.  We're in the HGEA conference room, David
K. Trask Building, we're in room 207, which was made
available.
 In attendance we have board member Kent Hiranaga;
Clark Hashimoto; Orlando Tagorda; myself, Michael Nobriga;
Corporation Counsel Howard Fukushima; Director David Craddick;
Deputy Director George Tengan; head of finance, grand Pooh-Bah
of buckaroo, Mike Quinn; and the court reporter.  And in the
audience we have Will Garvin representing the whole Island of
Maui.
 We have, for your pleasure, minutes, which is quite
surprising, but nevertheless like to have for our meeting, our
oversight committee meetings on May 16th and June 6th of this
year.  Members, may I have a motion to accept the minutes as
presented subject to a 30-day review at which time those
minutes should be filed.

MR. TAGORDA:  So moved.

MR. HASHIMOTO:  Second.

CHAIRMAN NOBRIGA:  Moved and seconded.  Any
discussion?  Hearing none, all those in favor signify by saying
"aye."
(A chorus of ayes.)
Opposed "nay."
(No response.)
The motion is carried.
 We have testimony from the public listed on our
agenda.  Is there any persons wishing to testify on any subject
matter before the oversight committee?  Okay.  We're moving on
to item 5, Committee Discussion and Recommendation.  First
item, Communication 01-22, a request from Thomas Welch on
behalf of John Elder for a waiver of the fire protection
requirements.  We have representing Mr. Elder, Mr. Will
Garvin.
 Mr. Garvin, you have the floor.  Any questions?
Okay.

WILL GARVIN:  I'm not supposed to talk today.  I'm
supposed to be here at the request of Mr. Welch, because he is
supposed to talk and I'm supposed to be there in case there's a
question that I can answer.  That being the case, if there's a
way we could put this off until Mr. Welch finds his way here, I
would appreciate it.

CHAIRMAN NOBRIGA:  That would be no problem.

WILL GARVIN:  He did tell me to go to room 205 of
the big building.  I'm expecting him to figure it out.

MR. CRADDICK:  What building?

WILL GARVIN:  The county building.  So I got there
and I thought maybe one of us was dyslexic, so I tried to find
502, and I was told it was over here.  I expect Tom to be
here.  If we get to the end and I have to speak and he is not
here, I can say things.  But I don't know exactly what he is
going to say; so therefore I know what I can say, but I don't
know how well that matches with him.

CHAIRMAN NOBRIGA:  No problem.  If there's no
objection, we shall move item A to item B and move item B to
item A.  Is there any objections?  So ordered.
 Item B, we also just have in attendance our new
person.  Can you identify yourself, ma'am?

MICHELE REED:  Michele Reed.

CHAIRMAN NOBRIGA:  Michele Reed?

MICHELE REED:  Correct.

CHAIRMAN NOBRIGA:  All right.  Yeah, perfect timing.

MICHELE REED:  I could not find a place to park,
it's all reserved.

CHAIRMAN NOBRIGA:  Yes.  Okay.  Communication
01-23.  This is a communication from Michele, who is present,
and Chris Reed regarding the ownership of a water meter, tax
map key 2-8-002:082.  We did receive via facsimile late, late,
late breaking, a 61-paged document; but in order to try and
summarize and move forward with the request, I would like to
ask Michele Reed to provide us with an opening statement.

MICHELE REED:  Basically, I'm just here hopefully to
get assistance from the county, because we have owned this
property for nine years.  We have been corresponding in writing
through attorneys verbally for over eight years, trying to get
these people off of our water meter and to get their own water,
and to date they have not done so.
 And it doesn't appear to me that they are going to
unless there's some sense of urgency, and we have given them
innumerable deadlines in writing, but that doesn't mean
anything.  If we cut the line, they told us they will sue us.
We're in a Catch-22.  We can't market our property; we can't
sell it.  Even though it's on a legal easement, they are
refusing to get off of our water meter.
 I lived in (inaudible) for several years and we had
a catchment and we had a well.  So I guess their options are a
catchment, a well, or try to get their situation together to
come together and do this water meter.
 They have gotten -- Mr. Craddick has been helpful,
he has given them more help than going down the county trail
for a certain distance.  But it seems like every year there's
another problem and the reality of it is that they have not
tried to do anything until probably in the last year.
 And now they are saying one of the parties refuses
to contribute financially, so it's kind of like we're back to
ground zero.  I feel we're always going to be back there.

CHAIRMAN NOBRIGA:  Gloria, is she okay back there?

THE COURT REPORTER:  Yes, I can hear her.

MR. HASHIMOTO:  What's the situation?  Do they have
to be on the list, these people that is using the water meter?
Can they get a water meter if they improve the lines and have
the easements?  Or can they get a meter?  Do they have to be on
the list?  What's the situation?

MR. CRADDICK:  We'll go over this a little bit since
it was sent out late.  I think Orlando did not have a fax where
we could fax it.

MR. TAGORDA:  Thank you, Mr. Craddick.

MR. CRADDICK:  Basically this situation here is the
same as the previous one, that's a court ordered partition.
That's how it came about.  And I believe it's 1994 or '92, I
forget what time we met with the group, but --

CHAIRMAN NOBRIGA:  There's a reference of 1990
meeting in the --

MR. CRADDICK:  Not 1990.  1992 and 1995.

CHAIRMAN NOBRIGA:  -- in the department's recommendation.

MR. CRADDICK:  Well, I'll just say the early '90s.
I can't really remember when it was.  But basically we told
them then that the service cannot be serving these other lots.
Our records show it was for the one lot that Reed is on.  They
cannot be serving the other lines.  They said they were going
to get the line fixed up.
 And these are all existing lots; they existed prior
to the Kula rule -- well, this is not in the Kula rule
regulated area.  It's in Haiku.  They are all existing lots and
we told them if there's a line adjacent to the property, an
adequate line, we would give them meters.  And they have gone
about designing that.
 My understanding, if you look in bold on the bottom
of the second page, the construction plans are nearly
complete.  The property owners, I guess they are still getting
easements from EMI.  Because the drawing, if you look at the
drawing on --

CHAIRMAN NOBRIGA:  Do you have these, Orlando?

MR. TAGORDA:  I'm trying to --
         
CHAIRMAN NOBRIGA:  Do you have these documents?

MR. TAGORDA:  Now, I guess.

CHAIRMAN NOBRIGA:  Now, you guess?

MR. TAGORDA:  Yes.

CHAIRMAN NOBRIGA:  Thank you.

MICHELE REED:  May I say something?

CHAIRMAN NOBRIGA:  I'll allow you a time to speak
again, but I'll prefer if we could let Mr. Craddick finish his
statement.  Thank you.

MR. CRADDICK:  This picture here is where the line
is, it's off of Kaupakalua Road.  And the county road, I guess,
goes down to that junction between Kawelo and Kupuna Road.
That's what the county had set some kind of responsibilities
for.
 The rest of the road is what they called a paper
road.  It's on EMI property and EMI is saying they will give
them an easement for it.  The issue about whether some people
will participate in this line extension, you know, I can't
really tell you much about.  You would have to talk to the
Reeds about that.

MR. HASHIMOTO:  They will have to pay for the improvements?

MR. CRADDICK:  Yes.  It was a subdivision that did
not meet the requirements back when it was subdivided.  I'm not
quite familiar with the rules of how they did it, but
apparently the court ordered it and did not necessarily waive
them from our subdivision requirements.

CHAIRMAN NOBRIGA:  Mrs. Reed?

MICHELE REED:  What I want to say is, ironically
enough, back in 1987, the other parties that were part of the
subdivision all got together and they made an offer to these
three property owners to participate in getting their own
meters.  And in 1987, it would cost each family $2,000 and they
refused to do so.
 Now, because it's escalated, of course, their
contention is now it's too expensive, they can't afford to do
it.  But that's not really our problem.  And part of the
problem is one of the parties is refusing to participate
whatsoever.  And the most recent correspondence I got from
Mr. Vitarelli (phonetic), he said that yes, Mr. Craddick gave
him the easement through the county road.
 EMI is now saying they don't think they own that
other property.  They think it might be owned by the
subdivision that we're all on.  So now they are pursuing that.
It's just that I don't know where I see an end in sight here,
is what I'm saying.  This already has been eight years.  It
seems like every year it's something.  I just want to solve it.

CHAIRMAN NOBRIGA:  I have a few questions.  One
question is for Mr. Fukushima.  Do the Reeds have a legal
recourse in this matter that they could pursue?

MR. FUKUSHIMA:  I suppose there is under a theory
of -- no agreement, some kind of trespass.  I'm not sure.  But
I would imagine that there is some theory by which they could
attempt to get these other people off their water.
 Let me also remind the committee, however, that this
particular installation is contrary to the department's own
rules.  That you have one meter serving a number of properties
which essentially is not a private system.  They are just
hooked up to this, to the Reed's meter contrary to the board's
rules.

CHAIRMAN NOBRIGA:  I understand that.  The second
question that I have is, what is the reason for this being
before this committee for recommendation to the board?

MR. CRADDICK:  They wrote a letter to the board, that's all.

CHAIRMAN NOBRIGA:  That's the only reason?

MR. CRADDICK:  That's the only reason, as far as I can tell.

MR. FUKUSHIMA:  If I may, Mr. Chair.  This appears
to be more of an operational problem; something to do with the
enforcement of the rules, which is part of the day-to-day
operations of the department.  The rules are in place for the
department to enforce.
 Now, I understand that in the enforcement of this
particular rule, it's going to put a hardship on persons that
are hooked up to the line improperly or illegally.  And I
believe the department has tried to resolve their predicament
if they are removed from the line.  I can't comment as to
whether they would be entitled to water meters as existing
lots.  I don't have sufficient facts to make that
determination.
 However, I remain of the belief that the department
would be enforcing its rules if it required those other
services to get off.
CHAIRMAN NOBRIGA:  Thank you, Mr. Fukushima. Orlando?

MR. TAGORDA:  I just got a lot of these facts today,
Mr. Chairman, but I read Mrs. Michelle Reed's letter, June 15th
to the Board of Water Supply chairman and members.  While there
is in that letter a threat made by I don't know who, can you
recall when that threat that the department might take away
that meter from you?  Was that recently or was it nine or ten
years ago?

MICHELE REED:  My husband -- I think Mr. Craddick
will recall, my husband had a meeting with Mr. Craddick and his
associates, which was two or three years ago, for the purpose
of trying to resolve this issue.  He was asking the county to
support us in issuing a cease and desist order to get these
people off of our line.
 Pursuant to the correspondence we got from the
department, they seemed to agree what they were doing was
illegal.  We were trying to bring the property up to code, make
it legal, make it right so that, number one, we could live
there; and number two, make it marketable.
 During that meeting, I was not present at the
meeting and I apologize my husband is not here today, he had to
fly.  But we were basically told that the county was not
willing to get involved in that respect, that they would help
the Vitarellis, Bronsons, and Brunes (phonetic) try to solve
the problems the best they could.
 But they advised my husband that (a) we should not
cut the line; that we would be opening ourselves up for a
lawsuit; and that (b) the county did not want to pay for the
position to get involved in doing a cease and desist order.
That's kind of where we stopped and we were trying to work with
them to be nice and neighborly and give them another three or
four years, but we're getting nowhere.

MR. TAGORDA:  There was a mention of submeters being
used by 30 or more consumers below your property.  How are
these people paying the water usage?

MICHELE REED:  They are paying the whole bill right
now.  Because when we first bought the property, every month
there was a huge argument over who was going to pay what part
of the bill.  If you look at our bills back then, they were $3-
or $400.  It was insane for one water meter.
 There were four people living on our property,
there's 30 to 35 living below us on submeters.  So every month
there was a discrepancy as to who would pay what amount.  We
were always asked to pay a third, which made no sense, because
there were four residents on our property versus 35 down
below.
 At some point, three or four years ago, the
Vitarellis, knowing how frustrated we were and how it caused
dissents every month, said that, We'll collectively pay the
bill for now, we are inconveniencing you.  Every time we have a
break in the waterline you guys are without water.  And that
happens because it's an old line.  So they have been paying the
bill because they asked to, because they weren't in a position
to move forward and get their own water.

MR. TAGORDA:  Mr. Chairman, and I would like to
address this question to our director.  It's been three to four
years ago that you were made aware of this problem,
Mr. Craddick, why is it, then, that there was no immediate
action from the department to resolve this issue?  And you know
that there was a clear violation of our rules and regulations.

MR. CRADDICK:  As I said in the report, we have
tried to let them fix it up.  They said they were going to fix
the line up.  We tried to work with them to get them to do
that.  The drawings are pretty much done.  There is this
easement problem, but even on our jobs it takes time.
 To me, as long as they were working towards getting
the system fixed up, I didn't feel it would be proper to go in
and pull the meter or have some people without service while
they were working towards getting that line fixed up.

MR. TAGORDA:  What would be your reaction,
Mrs. Michelle Reed?

MICHELE REED:  What is the --

MR. TAGORDA:  What would be your reaction if the
committee recommends immediate action to removal of your
meter?

MICHELE REED:  Removal of my meter?  Why would my
meter be removed?

MR. TAGORDA:  It's a recommendation because you are
using it, you know, and supplying water to lots that are not
supposed to be supplied with water.  It's a violation.  And the
only thing you can do is to take the meter away from you, and
then we can resolve the problem.

CHAIRMAN NOBRIGA:  Mr. Quinn?

MR. QUINN:  I guess Mr. Tagorda is referring to our
rule which does state that that is the penalty, removal of the
meter.

MICHELE REED:  That's why I received that
correspondence in '93; that's why we wrote to those people;
that's why we got an attorney; that's why we met with
Mr. Craddick, because we were asking the county to enforce
this, because we didn't want these people on our line.  We did
not want them on the line since day one.  So how could my meter
be removed?  That doesn't make sense.

MR. HASHIMOTO:  You said there was a verbal
agreement between the owner --

MICHELE REED:  Gordon Daniels, are you familiar with
the name?  He was a county -- he was permits division or
something -- people on the property.  Mr. Daniels had been
deceased, his wife sold the property to us.  There was no
written anything about water.
 What happened was, back in '87 when these people
refused to spend the $2,000 like everybody else spent to get
their own meters, Gordon, being the nice guy that he was,
because they were all friends from Palau, said, Fine, you can
use my line until you get your act together to get the money to
put your own lines in.  That didn't happen, Mr. Daniels died,
his wife then turned and sold the property to us.
 Immediately she and a Realtor told these people, The
property has been sold; you have to get off the line.  We got
the water meter put in our name in '93, we immediately started
this whole process of writing letters, visiting with these
people, going to the county.  We just can't get them off of our
line.  I'm afraid to cut the line, I'm afraid they will sue
me.  I don't have the resources to fight that.

MR. TAGORDA:  May I read, Mr. Chairman, what I'm
trying to say to this.  In our rules and regulations, 103-04,
Section F, water service rates.  Providing water service to
lots other than the lot to which the service is assigned is
removal of the meter.  That's very clear in our rules and regs.

MICHELE REED:  That's why we asked for help.

MR. CRADDICK:  The rule Orlando is referring to was
not enforced back when this situation occurred.  What was
enforced then was you cannot sell water.  And we have by her
own admission that all the other people are paying for not only
their water but the Reed's water.  That's what's illegal in
this situation under the rules that were enforced at the time
this occurred, is the selling of the water.
you transpose that back to when the subdivision formed or when
the meter was put in or when these other people connected up, I
would have to leave it up to Howard to decide how you jump to
that new rule.  But certainly, it said you couldn't sell water
and we have information that water was being sold.

CHAIRMAN NOBRIGA:  Yes, Clark.

MR. HASHIMOTO:  Mr. Fukushima, can they sue the
Reeds for cutting off their lines when it's kind of cut and
clear?  Can they get sued?

MR. FUKUSHIMA:  The easy answer is, sure they can
get sued.  But whether they would prevail -- I wouldn't even
want to hazard a guess.  On the surface it looks like they
don't have a case.  But again, I don't want to guess.  It would
be speculation on my part.


MR. HIRANAGA:  Mr. Fukushima, when did the rule that
Orlando just cited become adopted?

MR. FUKUSHIMA:  I believe it was 1997.

MR. QUINN:  That's correct.

MR. CRADDICK:  That's right.  It was put in place to
replace the one that said you can't sell water.  So it was
trying to do the same thing, basically stop water from going
across lot lines.  But it was much harder to prove that
somebody was selling water.  But we now have it on the record
that water is being sold and was being sold.

MR. TAGORDA:  It's based on her testimony that there
was submeters below her property line.  That means they are
paying for that water usage.

MR. CRADDICK:  Just because there's a submeter
doesn't mean they are paying for it.

MR. HIRANAGA:  Mr. Chair, my feeling is, since the
department was aware that there were multiple users on this
meter when the new rule was adopted, they should have provided
them notice that within a specified time period they need to
remedy the situation or they will be in danger of -- and one or
two years should have been sufficient and we're now four years
later.

CHAIRMAN NOBRIGA:  Even more perhaps.  I think some
type of a specific period where the owner of the meter needs to
remedy the situation should be an order.  If they fail to do
that, then they are in danger of forfeiting their meter.
 I would like to at this time recognize the
attendance of Kogasaka and Chang from the department, and also
board member Starr, Mr. Welch, and Captain Bal, from the Maui
fire department.
 Getting back to the communication.  The Reeds -- the
Reeds, yeah?  I get confused sometimes.  The Reeds are asking
for assistance in somehow clearing up the problem that they
know exists, they are working with the department and they have
written a letter to the board asking for us to assist them.
 I have another question for Mr. Fukushima.  What
action or actions would be within this board's jurisdiction
relative to this matter?

MR. FUKUSHIMA:  Quite frankly, I don't think the
board has to take any action.  It is the department's
responsibility to make sure their rules are enforced.
 Now, of course this places the burden on the Reeds
to get these other people off of their line.  I'm a little
surprised by some testimony by Mrs. Reed regarding the 32
submeters.

MICHELE REED:  There are three families down below
us.  Oh, no, 32.

CHAIRMAN NOBRIGA:  I heard 30-something.

MICHELE REED:  There are three parcels down below us
that are on our --

MR. FUKUSHIMA:  On these parcels, there's a total of
eight dwellings including yours?

MICHELE REED:  There's two dwellings on my property,
there's one bi-level dwelling on the Brunes and they are
absentee owners; they rent out both of those units.  Then
there's a house, an apartment on the other property, Bronson's,
and she rents out the whole thing, she doesn't live there.  And
then the Vitarellis I think have six houses on their property.
There's about 25 to 30 people living on that property and they
do bed and breakfast too and rentals.

CHAIRMAN NOBRIGA:  There are ten structures?

MICHELE REED:  About ten.

CHAIRMAN NOBRIGA:  And this is with --

MR. HASHIMOTO:  One water meter.

MICHELE REED:  Correct.

MR. CRADDICK:  Five-eighths meter.  There's a lot of
court ordered partitions that are out there --

MR. FUKUSHIMA:  If I could comment on that.  Since I
believe the law took effect in 1974, these court ordered
partitions, where a subdivision was the result that it would
have to get county approval.  But before that, none of these
partitions came before the county departments for review or
approval.
 This partition took place in 1973, so hopefully
we're not going to have the problem in the future, but there
are these past problems that still have to be resolved.

MR. TAGORDA:  Mr. Chairman, just like what the
corporation counsel said.  We don't need board action here.  I
think what the department should really do is to work with the
corp counsel and with due diligence enforce our rules and make
sure these issues are resolved legally.

CHAIRMAN NOBRIGA:  Yes, Mr. Craddick.

MR. CRADDICK:  It might help us to have the force of
the board behind us saying to enforce the rules in an
expeditious manner.  If you feel you need to do something, that
would certainly help us.  If you can, you could make that
recommendation.

MR. FUKUSHIMA:  The committee could make the
recommendation, Mr. Chair, if it wanted to.

MR. TAGORDA:  What's our recommendation?

MR. FUKUSHIMA:  Urge the department to enforce and
uphold the rule in question.

MR. HASHIMOTO:  Make a motion.

CHAIRMAN NOBRIGA:  State your motion again in the
form of a motion for me, please.  Yes, Mr. Kent.

MR. HIRANAGA:  In order to possibly avoid similar
instances from coming before the board, would just a
communication to the director suffice versus having a -- would
a communication from the board to the director requesting him
to enforce the rules as stated suffice versus having the board
having to make a recommendation -- the committee having to make
a recommendation to the board?

CHAIRMAN NOBRIGA:  Who are you asking?  Howard?

MR. HIRANAGA:  The chair.

CHAIRMAN NOBRIGA:  Okay.

MR. HIRANAGA:  Or Howard.

CHAIRMAN NOBRIGA:  It's the chair's feeling that the
director always has that --

MR. HIRANAGA:  Why do we need to vote on it?

CHAIRMAN NOBRIGA:  It's a redundant kind of issue
almost.  Well, to me.

MR. HIRANAGA:  Taking up the board's time.

MR. CRADDICK:  The risk of extending this further
on, I think what it is, once we send the letter to the Reeds
that their meter will be removed, they are affected, along with
everybody else, and then they will come to the board, Oh, my
meter was removed.
 And I think it helps when they get a letter from me
saying that the board wants the rules enforced, they then in
turn can show that to the rest of the people in their unit
that, Hey, this meter is going to go, we're all going to be
affected if you don't get going and do something.  So it just
helps to know that all of us are together, I think.
 And it certainly has a lot of force and effect going
out and knowing that they are not going to be able to come back
to the board, saying, Hey, my meter was removed and I'm hurt in
this thing.

CHAIRMAN NOBRIGA:  Yes, Clark.

MR. HASHIMOTO:  That's why we have the rules to
enforce.  I think we should reinforce the rule.

MR. CRADDICK:  Okay, we'll do that.

CHAIRMAN NOBRIGA:  What's the committee's pleasure?

MR. TAGORDA:  Just like I said before, Mr. Chairman,
the committee would like to just recommend that the director
and the department staff enforce our rules with due diligence.
With this complication now, I think they need to get
corporation counsel's advice on this matter.  With the help of
corporation counsel, you got to enforce the rules of this
department.

CHAIRMAN NOBRIGA:  Is that a motion, Mr. Orlando?

MR. TAGORDA:  I'll make it as a motion, Mr. Chair.

CHAIRMAN NOBRIGA:  Thank you.  Is there a second?

MR. HASHIMOTO:  Second.

CHAIRMAN NOBRIGA:  The motion is to recommend that
the director and department staff enforce the rules in due
diligence in cooperation with the corporation counsel with the
County of Maui; is that correct?

MR. TAGORDA:  That's correct.

CHAIRMAN NOBRIGA:  Any further discussion?

MR. HIRANAGA:  Point of clarification.

CHAIRMAN NOBRIGA:  Yes.

MR. HIRANAGA:  Have you identified -- is this under
the oversight committee or rules committee?

CHAIRMAN NOBRIGA:  These matters were, what you
call, were sent to the oversight committee.  This is the first
oversight committee scheduled since that thing, the transfer.
So this is currently an oversight committee and we're trying to
finish up the last two items on our docket.

MR. HIRANAGA:  Could you identify who is on the
oversight committee?

CHAIRMAN NOBRIGA:  That would be Orlando Tagorda,
Clark Hashimoto, and myself.

MR. HIRANAGA:  Okay.

MR. HASHIMOTO:  That's the original.

MR. HIRANAGA:  So we're not --

CHAIRMAN NOBRIGA:  Yeah.

MR. HIRANAGA:  Just wanted to clarify so --

CHAIRMAN NOBRIGA:  Okay, thanks, huh.  Ready to
vote?  All in favor say "aye."
(A chorus of ayes.)
Opposed "no."
(No response.)
Motion is carried.  Hopefully the director will help
you get rid of those guys.

MICHELE REED:  So my future correspondence should be
with Mr. Craddick?

CHAIRMAN NOBRIGA:  You got it.

MR. CRADDICK:  You'll get a letter from us.

MICHELE REED:  Where does that leave me?

MR. CRADDICK:  It leaves you without a meter if --
well, anyways, we can work on that.

MR. FUKUSHIMA:  If I may, Mr. Chairman.  Mrs. Reed,
what, in essence, the board is saying or this committee is
saying is that you have remedies to get these people off the
line.

MICHELE REED:  I have remedies?

MR. FUKUSHIMA:  Yes.  And that the board enforcement
of its rules means it's going to take your meter.  So it would
behoove you to go back to your attorney and have him start some
actions to get these people off the line.

MR. CRADDICK:  Or participate with them to get it in.

MICHELE REED:  Why should I have to pay for a meter
that I already own?  I don't understand that.

MR. CRADDICK:  I don't know how the people got on
there originally.  That's the owner -- previous owner and them.

MICHELE REED:  But it's not legal.

MR. FUKUSHIMA:  No, but the remedy for the
department, if there is a breach of the rules, is to remove
your meter.  And so it's in your best interest to get these
people off of your line.

MICHELE REED:  That's what I've been trying to do.
But if I cut the line, they will sue me and I can't afford to
hire an attorney to fight them anymore.  How can I lose a meter
that I own?  I'm confused.

CHAIRMAN NOBRIGA:  I'll call for a five-minute
recess at this time.
(A recess was taken.)

CHAIRMAN NOBRIGA:  We'll call this meeting back to
order.  We'll go to item B, which was item A, on Communication
01-22, which is the request from Thomas Welch on behalf of
Mr. John Elder for a waiver of fire protection.  And Mr. Welch
is consulting outside.  This matter is requesting a waiver of
requirements set in Section 3-1 E of the department's rules.
Mr. Welch, could you please start us up?

THOMAS WELCH:  Good morning, Mr. Chairman, members
of the board.  Thank you for deferring us to the second item,
and I apologize for not having been here on time.
 This is a request for modification from the strict
application of the fire flow requirements for John Elder.  This
is a lot in Haiku in a subdivision called Kokomo Vistas.  And
the lot is about 4 acres, 3.92 acres.
 Mr. Elder on the property has a full-sized
residence, he has a swimming pool with a second structure on
the site, which consists of an open gazebo or cabana-type
structure which is upright and open, and it has a roof on it to
get out of the sun, by the pool deck.
 And what he wants to do is to put up a storage or a
barn on the property in connection with his agricultural
activities on the property.  He has kind of a small working
farm.  He does tropical flowering, plants, palm trees, fruit
trees, and fruit, and he supplies several vendors and stores
and so forth, primarily in the Paia area.  So he does have a
bona fide agricultural business on the property.
 And the purpose of this third structure is to serve
as a shed to store his farm equipment and also to do some
potting operations in connection with his plant sales.  And the
structure that he proposes is 1680 square feet.
 Excuse me, I should introduce Will Garvin, who is
John's engineer here with me today.
 It is not a residence; never will be.  It's not
requested to be a residence; it's not intended to be requested
to be a residence.  But the problem arises because it's
technically a third structure on the land and it triggers the
fire flow requirements.  So that's why we are here before you.
 The fire flow requirements to be able to put up the
storage building requires the installation of 2600 feet, 2600
lineal feet in this subdivision of fire flow line at a cost of
approximately $450,000.  How this subdivision was approved in
the beginning without adequate fire flow, I have no idea.  I
don't know how old the subdivision is, but it's apparently
inadequate for this area.
 However, to solve the fire issue, because certainly
Mr. Elder does not want to be subject to any undue risk of fire
or to jeopardize his insurance, he has installed a standing
hydrant at his swimming pool to be available as a hydrant for
fire flow on-site storage purposes and he has 40,000 gallons in
the swimming pool.
 Will Garvin talked to the fire department late last
year, reviewed the plans and so forth, and Leonard Nemchek
(phonetic), the captain of the Fire Prevention Bureau, said
that it was okay, that the on-site fire protection was adequate
for the needs of the department.  And I submitted with my
letter of June 7th a copy of his letter dated December 1, 1999
and a further letter dated February 10, 2000, concerning the
hydrant.
 We're simply requesting that the board approve a
modification based on the representations and the assurance
that the fire flow is adequate.
 Now, I did have an opportunity to talk to Captain
Bal before we started, and he can certainly testify.  But we
discussed the fact that he was here on this matter and another
matter and that it would be his inclination, perhaps, to argue
against this.
 I discussed with him Captain Nemchek's letter and so
forth, and Captain Bal said maybe from his standpoint he would
like to have further opportunity to talk to Captain Nemchek and
look at the site and so forth.  And we have no objections if
the board wanted to defer it for that purpose.

CHAIRMAN NOBRIGA:  Captain Bal?

CAPTAIN BAL:  I do have another concern and the
reason I was going to ask to defer this matter at this time is
to actually have a site view of this thing.  And from what I
have gathered so far is that this is a bona fide subdivision
and there are houses built in this subdivision.
 Now, generally speaking, when you do have a
subdivision, as soon as you pick up a third structure, you are
required in the water and in the fire to provide fire
protection throughout this area.  And now I'm informed that
there are already houses throughout this subdivision with no
fire protection at all.  And this, of course, sheds a different
light on this whole problem at this time.
 I believe Mr. Elders' parcel alone is not the
question.  It's the entire subdivision that does not have any
protection whatsoever and that's where we have a problem.
Thank you.

CHAIRMAN NOBRIGA:  Thank you, Captain.  Members, any
questions?  Orlando?

MR. TAGORDA:  Mr. Welch, you mentioned about a pool
that contains 40,000 gallons of water.

THOMAS WELCH:  Yes.

MR. TAGORDA:  Would you explain to us how will that
pool serve as a fire protection?

THOMAS WELCH:  Will can probably answer this in more
detail, but I believe the fire department is able to use
on-site stored water if there's an appropriate hydrant to hook
up to.  And we have installed a hydrant in a location that's
connected to the pool, that can draw all of that water from the
pool through the on-truck pumping equipment from the
department.  That's how I understand it, but I would defer to
the experts, of course.

MR. TAGORDA:  My question is, then again, on the
fire flow demand, using that swimming pool with 40,000 gallons,
did you folks hook up some pump appurtenances to make sure that
the fire flow requirement is being met?

THOMAS WELCH:  Yes.  We didn't hook up a pump, but
we hooked up -- we created the hydrant so the pumper on the
fire truck can hook up to it, and then -- I think that's the
procedure fairly routine for using on-site stored water for
fire fighting.

CHAIRMAN NOBRIGA:  Mr. Fukushima, please.

MR. FUKUSHIMA:  Mr. Chairman and committee members,
this request is a request for a waiver of Department Rule 3-1
E, I believe.

CHAIRMAN NOBRIGA:  Yes.

MR. FUKUSHIMA:  It's our position, and we have
expressed the position before to the board, that waivers or
variances from department rules without proper procedure or a
rule regarding appeals or variances in place is improper.  That
this is a request for a waiver of the rule that the
department's rules do not allow at this time.
 There is an opposed rule before the rules committee
dealing with appeals.  Mr. Welch apparently is basing his
request on rule 2-12, which is waivers from subdivision
requirements.  We do not believe that 2-12 applies in this
particular case.
 Again, we do not believe that an appeal process, a
proper appeal process is in place to appeal the director's
decision regarding rules that do not involve subdivisions.

CHAIRMAN NOBRIGA:  Mr. Welch?

THOMAS WELCH:  Mr. Chairman, I won't debate that.  I
have always felt that that rule applies and I think it has been
applied, but rather than argue the technicality, may I suggest
this.
 Coming back, if Captain Bal is okay with this
particular circumstance, and if the board feels that it's a
fair disposition of the matter, could I at least ask the board
to pass a resolution that would say that while the board is not
authorized to grant it directly, the board would -- a matter of
policy, the board or the committee would not object or take a
position against it in a request for a variance before the
Board of Variances and Appeals?

CHAIRMAN NOBRIGA:  Is there a Board of Variance and
Appeals that's not with us?

MR. FUKUSHIMA:  Are you talking about a variance
before the BVA or an appeal before the BVA?

THOMAS WELCH:  I think it asks for variance.

MR. FUKUSHIMA:  I'm not particularly sure and I
don't have my code with me that if the BVA has the authority to
grant variances from department's rules.  It can grant
variances from zoning, general plan, building codes, and
subdivision codes, but I don't believe it includes department's
rules.

THOMAS WELCH:  There are three variance areas that I
am aware of.  Number one is that.  And I thought that was broad
enough but we can check it.  It just occurred to me it may be
the avenue.  Number two, the rule you cited with respect to
subdivisions for the board.
 And number three, there's the provision that the
building code that allows the director of public works to waive
requirements preconditioned for building permits if the public
interest is met based on the public interest being protected in
unusual cases.  You and I have talked about this before.

MR. FUKUSHIMA:  But not in regards to water.

THOMAS WELCH:  I know that.  But I find it hard to
believe that there is no basis for modification of a building
code type requirement in this kind of a situation.  I think
you've granted relief from this kind of thing before.  I think,
for example, Neihaus (phonetic) was an example that's been
before this board for years.

MR. FUKUSHIMA:  It has not been granted, though.

THOMAS WELCH:  Oh, it had not been granted.  I
thought it had been.  It's certainly not an unreasonable -- not
an unreasonable request.  But I don't know if there's any
solution.  I have to go back and think about it and you and I
can talk about it.
 But let me suggest this.  This is a lot in a
subdivision.  We're talking about, as Captain Bal has
mentioned, that this is a subdivision matter.  There are houses
in this subdivision.  We're talking about a fire flow that
relates to this subdivision and will serve this subdivision and
should have been put into this subdivision if the rules
required at the time the subdivision was being processed.
 Therefore, this is enough of a subdivision for this
board to be able to grant it, because it is in connection with
a subdivision.  It's a subdivision matter.  Sure, this is not
the subdivider, but it is a subdivision.  Now, I think maybe we
do come under that rule, Howard.

MR. CRADDICK:  We tried that argument before.

CHAIRMAN NOBRIGA:  Gentlemen, in light of the
testimony before us, the chair recommends that this matter be
referred to the rules committee, at which time Captain Bal will
have appropriate time to review the situation and give us a
report back and then we can handle this in the rules -- yes?

MR. FUKUSHIMA:  If I may, Mr. Chairman.  On the
rules committee agenda today, is a rule, a proposed rule
regarding an appeal process.  If that rule is adopted, then
that would be the vehicle that Mr. Welch and Mr. Welch's client
can appeal to the board on decisions made by the director.  The
problem is that rule is not in place.

CHAIRMAN NOBRIGA:  Right.

MR. FUKUSHIMA:  Our understanding of the law is if
there's no rule regarding an appeal, any relief to an applicant
must be in circuit court.  We believe -- we expressed this time
and time again, we believe having that rule in place so the
board and the board's committees can consider matters such as
this.  That's why we believe that rule is very important to be
in place.

CHAIRMAN NOBRIGA:  I was going to recommend that the
board transfer this item to the rules committee because it
dealt with a request for modification and waiver of a rule.
Not because of the appeal process, but because of that part of
the request.  And also to allow the fire department to do an on
site.  But should we pass the appeal, then yeah, we could do
that too.

CAPTAIN BAL:  Mr. Chair?

CHAIRMAN NOBRIGA:  Yes, Captain.

CAPTAIN BAL:  I believe one of the questions to this
board should be, as far as the subdivision is concerned and I'm
going to ask the question, why is it -- why wasn't the rules
observed as far as having the fire fighting equipment when this
was developed at the time?

MR. CRADDICK:  I can answer that one.

CHAIRMAN NOBRIGA:  No, but thanks.

MR. HIRANAGA:  I have a question for the director.
If Mr. Elder were to remove the gazebo, would he then be
allowed to build the storage building?

MR. CRADDICK:  I think Howard brought this point up
before.  The rule says the first and second dwelling are
exempted.  Now, by resolution, and I'm not even positive it was
an actual resolution, it was just the board said that we're
going to count two structures as long as the fire requirements
are not greater than two dwellings to handle a structure as a
dwelling, which is already an aberration of the actual rule.
 He should have been required to put the fire stuff
in when he built the first thing.  I'll tell you, had he come
to the board before with the gazebo, the board would have
laughed at that.  People have come in with dog houses, garages
and stuff like that.  Basically the board said, look, as far as
the fire demand is not greater than two structures or two
dwellings, which are exempted, they are going to handle it as
that.
 Now he is coming in with a third one and I believe
all the other lots there have one or two dwellings on them or
one or two structures on them, so they are not in violation of
anything of the rules.  He just happens to be the first one
coming in that is a rule violation.
 And I sympathize with Mr. Welch on the subdivision
aspect of it; but in fact, he is just coming in with a building
permit, and somehow the whole subdivision needs a pipeline in
there to provide fire service for the entire subdivision and
it's unfair to have one person do it.  But nevertheless that's
the way the rules are written right now.

MR. HIRANAGA:  If he removed the gazebo, would he be
able to build a storage building?

MR. CRADDICK:  I would leave that up to corp
counsel, because I know Howard has serious concerns over the
board waiving a rule by just some decree, or even if it was a
resolution, resolutions cannot waive the rules.  And if the
board again said to strictly enforce the rules, then he could
not have gotten past the -- even the first structure.  So even
if he removed the gazebo, he could not build this.

MR. HIRANAGA:  Because there was inadequate fire
protection to begin with, he should not have gotten the
building permit for the first dwelling?

MR. CRADDICK:  You could make that argument, but
there is a specific rule that waives the first and second
dwelling.  That was passed in '84.

MR. HIRANAGA:  I'm sorry, what's the answer?  Is
there an answer?

CHAIRMAN NOBRIGA:  Not at this time.

MR. HIRANAGA:  There's no answer?

CHAIRMAN NOBRIGA:  No.

MR. HASHIMOTO:  He is asking you.

MR. FUKUSHIMA:  Are you asking me?

MR. HIRANAGA:  The director is deferring to you, I
guess.  If he removes the gazebo, would he be able to build his
storage building?

MR. FUKUSHIMA:  Again, as the director indicated,
rule 3-1 E refers to two dwellings.  It doesn't refer to two
structures.  Even if the board had in the past passed a
resolution saying okay, we're going to consider structures
dwellings, we don't believe that a resolution, which is
inferior to a rule, can modify a rule.  The plain language of
the rule is dwelling.

CHAIRMAN NOBRIGA:  My recommendation is to refer
this to the rules committee.  Is there a motion to that
effect?

MR. HASHIMOTO:  So moved.

CHAIRMAN NOBRIGA:  Thank you.  Second?

MR. TAGORDA:  Second.

CHAIRMAN NOBRIGA:  Any further discussion?  Ready to vote?

MR. TAGORDA:  Mr. Chairman, question.  Can I suggest
that the staff have a site inspection on this property?

CHAIRMAN NOBRIGA:  Sure.

MR. TAGORDA:  Would that be too much to ask
Mr. Craddick about distances of those dwellings, proposed
construction, the gazebo, and the hydrant?  I would like all
the information to the rules committee meeting.

MR. CRADDICK:  Well, it's in this packet right here.

MR. TAGORDA:  You just gave me the packet; I did not
have time to look at it.

CHAIRMAN NOBRIGA:  Okay.  Anyway, all those in favor
say "aye."
(A chorus of ayes.)
Opposed "nay."
(No response.)
Motion is carried.
No further business for the oversight committee.
The oversight committee is adjourned.
(The proceedings were concluded at 10:05 a.m.)
       
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