BOARD OF WATER SUPPLY
COUNTY OF MAUI
REGULAR BOARD MEETING
THURSDAY, OCTOBER 23, 2003
Held at the Kahului Shopping Center Conference Room, 65
West Kaahumanu Avenue, Unit 29, Kahului, Maui, Hawaii,
commencing at 9:10 a.m. on October 23, 2003.
REPORTED BY: Rachelle Primeaux CSR No. 370
A P P E A R A N C E S
CHAIR:
KENT HIRANAGA
MEMBERS:
MICHAEL VICTORINO, VICE-CHAIR
DOROTHY L. PYLE
STACY HELM CRIVELLO
GINNY PARSONS
CLARK S. HASHIMOTO
SALLY RAISBECK
KENNETH M. OKAMURA
STAFF:
GEORGE TENGAN, DIRECTOR
JEFFREY T. PEARSON, DEPUTY DIRECTOR
CATHY HOWARD, SECRETARY
ED KUSHI, CORP COUNSEL
HERB CHANG, ENGINEERING
DEPARTMENT OF WATER SUPPLY
TRANSCRIPT OF PROCEEDINGS
* * *
CHAIR HIRANAGA: I'll call the meeting to order.
Let the record show that Dorothy Pyle, Stacy Crivello,
Kenneth Okamura, Sally Raisbeck, Clark Hashimoto and Mike
Victorino are present. Are there any announcements at this
time? Seeing none, approval of minutes. Are there any
corrections or comments?
MR. VICTORINO: This is for the October 2?
CHAIR HIRANAGA: October 2, 2003, regular meeting.
MR. VICTORINO: I move to approve the minutes as
submitted.
CHAIR HIRANAGA: Motion to approve by Mike
Victorino. Is there a second?
MS. RAISBECK: May I ask if we could have the
usual if no corrections are found within 30 days?
MR. VICTORINO: If no questions are found within
30 days, my apologies. Will you second it now?
MS. RAISBECK: Second.
CHAIR HIRANAGA: Seconded by Sally Raisbeck. Any
discussion? Seeing none, all in favor, say aye.
(A chorus of ayes.)
CHAIR HIRANAGA: Minutes are passed. At this
time, I will open the testimony to the public. Is there
anyone here wishing to provide testimony regarding any of
the agenda items, or you may also provide testimony at the
time the item is addressed. Lance, do you want to speak now
or I guess we're going to go -- that's the first agenda
item, so if you want to speak about the Ron Cutler, you can
do it at this time.
MR. HOLTER: My name is Lance Holter. I'm
speaking in regards to the Cutler application Communication
03-12. I'm speaking in support of the waiver and I've
submitted testimony regarding my feelings regarding this
waiver that Mr. Cutler is asking. I'll read in part, from
all of my 22 years on Maui as a builder/realtor and coach,
my experience with Maui County's departments of Building,
Planning, Parks and Water has been that the County does not
penalize its people without first trying to bring an
existing conflict into compliance through dialog,
cooperation and common sense.
Regarding this waiver, the burden of economic
hardship has always been the fundamental criteria for the
basis of a variance or a waiver or an appeal. In this case,
this application for a waiver wishes the Board of Water
Supply to consider the possibility of a burden to the
applicant in the magnitude of $500,000. The waiver also
considers that there is an inherent unsafe nature in a water
line project bringing 5,000 feet of ductile pipe down a
twisting, winding and narrow Piiholo Road with giant
eucalyptus trees, huge root systems in the bank and under
the roadway itself as well as the disruption of water to the
consumers along the way. If any of you have ever driven
Piiholo Road, you'll remember the blind sharp turns with no
road shoulders and few pullouts. Is the danger and
disruption to the public safety equal to the burden?
It is unfair to place this burden on one party in
regard to the water line project that is required by the
Board of Water Supply. What also should be considered here
is an already existing water meter that is adequate to
supply the needs of the buildings in the application. This
meter was given by the Water Department to the subdivider
owner in consideration as compensation and as a trade for a
Kula transmission water line easement to the County over the
subdivider's land. The use of the water to this one parcel
does in no way affect the existing consumers for they
receive their water from another separate Piiholo water line
and have for years.
This is how all of Piiholo residents have been
living for a long, long time. The water that serves the
applicant's property comes from the 18-inch Kula
transmission line. There is an existing functioning fire
hydrant on Piiholo near the home on the property. The will
of the burdened party to seek a fair solution can be
considered in this waiver.
Number one, install an adequate water storage tank
system and fire storage facility entering into a fire
protection waiver with the applicant. All over Haiku and
Maui, fire waivers are granted for fire protection
requirements. Allow the applicant to use this as an
alternative water and fire protection system. Number two,
remove the plumbing from the existing 500 square foot
building and turn it into a farm storage shed with the
existing corral. Or number three, dedicate the present old
County tank area with an easement to the County Water
Department for storage and mixing purposes. And number
four, examine a suggestion from the former Director of the
Water Department David Craddick that the applicant improve
only that portion of the water line, which is equal to the
applicant's land fronting Piiholo Road.
Homes on agriculture zoned lots all over the
Piiholo neighborhood have a home and a cottage. They all
receive their water from the same source, the Piiholo Road
water line. There has been no burden placed upon the County
to have given the subdivider water from an 18-inch Kula
transmission line as it exists now, and this has resulted in
no subsequent burden to the Piiholo system. It is arbitrary
and capricious to require the applicant to suffer such
hardship and burden as mentioned at the beginning of this
letter when none is caused to any party or would result from
granting the applicant of waiver. The granting of a waiver
in this application is a just and reasonable use of the
board's discretionary powers to grant waivers. There are
unique and unusual conditions existing on the property and
in the neighborhood. Strict compliance with the provisions
of the Water Department would prevent reasonable use of the
applicant's property. Strict compliance would also be an
intrusion and potential safety issue affecting the
neighborhood.
Enormous economic hardship would affect the
applicant by not granting this waiver. Housing is in great
demand. There is an extreme shortage of land, and it would
be a tremendous help if the Water Department with the
cooperaton of the Board of Water Supply would begin the use
of alternative water systems, codes and new policies to
affect change with the goal of alleviating the economic
hardship the present housing crisis causes Maui's residents
today. Thank you very much. Lance Holter.
CHAIR HIRANAGA: Any questions for Lance?
I have a question, Lance. On your first page, you
say the burden of economic hardship has always been the
fundamental criteria for the basis of a variance for a
waiver or an appeal. Could you expand on that statement?
MR. HOLTER: Variances and appeals and waivers,
one of the basis for that appeal is the economic hardship,
which would be applied to the applicant if they were
mandated to fulfill a certain action. In this case on the
Piiholo Road system, there exists and preexisted a water
meter. That water meter served the house. The existing
water meter has a five-eighths inch size meter service, and
the fixture units in the house that is built and the
existing cottage is close, I think is within the 31 fixture
units criteria to require a $500,000 water improvement for
the -- a water meter that does not even come off that water
line I think is an economic hardship.
CHAIR HIRANAGA: Thank you. No further questions.
Sally.
MS. RAISBECK: Yeah. Thank you. So this is two
acres. It has a 500 square foot cottage on it; is that
correct?
MR. HOLTER: Yes.
MS. RAISBECK: They are in the process of building
a 2,000 square-foot residence?
MR. HOLTER: They built a residence.
MS. RAISBECK: It's all finished?
MR. HOLTER: It's completed, yeah. And they got a
plan review waiver -- this is all in the documentation,
Mr. Chairman -- they got a plan review waiver that puts the
burden on the architect to see that the County regulations
are enforced, correct?
MR. HOLTER: That's right.
MS. RAISBECK: Okay. And also the agreement that
is provided in our documentation here with the original
subdivider that nothing would be built, that was recorded?
MR. HOLTER: That was part of the deed, yes.
MS. RAISBECK: So that the title search company
should have informed the new buyers about that agreement; is
that correct?
MR. HOLTER: They were provided the title search,
and they were provided the title documents by the title
company.
MS. RAISBECK: And that restriction, was that
restriction in the title documents?
MR. HOLTER: Yes.
MS. RAISBECK: So the fact that there was a plan
review waiver so that the Water Department didn't get it
from -- before the building permit was issued, that is sort
of an artifact of the rules of the Planning Department that
they can, or the Land Use and Codes, right?
MR. HOLTER: They -- I think they had about six
months worth of building on the house, and then it was
discovered that there was the issue with the Water
Department regarding the water improvement. I'm not sure
why the architect didn't pick up on it, but it was part of
the title report.
MS. RAISBECK: Okay. And one of the things that
is being proposed to the Department is that the existing 500
square foot cottage would be turned into a shed by removing
the plumbing and that then this would be the first dwelling
on the property?
MR. HOLTER: Well, then it wouldn't become a
dwelling any longer. It would become part of the corral
that's down there.
MS. RAISBECK: Oh, okay.
MR. HOLTER: There is enough fixture units between
the two buildings that it would fall within the 31 fixture
units required by the County or very close to, so that the
dwelling would then be changed to the main house that was
built and the existing cottage would be turned into a farm
storage building.
MS. RAISBECK: Thank you.
MR. VICTORINO: Thank you, Sally. Mr. Holter.
MR. HOLTER: Yes.
MR. VICTORINO: Again, this reminds me of so many
other incidents that have come before us where prior
agreements are made, and again, you guys want to enter into
different agreements putting in fire protection or water
storage and whatever needs to be done. But these agreements
are entered in with this owner. Then the next owner comes
along, either isn't informed, doesn't find out about it
until afterwards or whatever and then comes running in to
us, in to the Board of Water Supply to say, hey, now you've
got to help us out. Again, I don't fault anyone, nor
yourself, sir. The problem that really comes to mind is too
many agreements are made, too many waivers are given, too
many changes are made to help somebody. And then it's not
informed to the next party coming behind them whoever buys
the property, so they're stuck with that situation.
Then they come to us so we make the change for
that one. The next one comes along, now they're going to
build another cottage, put in another fire protection; in
other words, it's an endless process, and I don't know why
other than the fact that I think a lot of people don't do
their do diligence when they do the research. Whether it's
the architect, whether it's the realtor, whomever, you or
the land owner ends up getting stuck with the problem and
then we're here to solve the problem for them.
And I don't think that's fair because there are a
lot of people out there that want water meters and we can't
issue water meters because we don't have the sources to
issue water meters. We don't have the capacity, or we have
a moratorium. Is it fair to give A and not B? I don't
know. But that's what appalls me in many of these
circumstances is the fact that somebody didn't do their
homework and now we've got a problem because of a prior
agreement. And there are many, many prior agreements out
there that we end up getting stuck with. So no offense to
you, Mr. Holter, or your client. I'm not faulting you for
this, but again, for us to solve the problem and be unfair
to somebody else that maybe has a justifiable situation
again just continues to create more problems for everybody
else. What is justifiable? What is fair? And that's where
I'm having a real difficult time.
No offense to you or anybody in this situation,
but we've seen very similar situations come before us and
someone didn't do their homework or somebody made an
agreement to get the land sold or bought or whatever, and
now we're stuck with it. And I'm just having a difficult
time again because I took at this historical background, and
as you pointed out, Sally, and there's been many agreements
agreeing nothing else is going to be built and all that,
and, bang, six months later, the house is nearly completed
and then we find out about the problem. Is it our fault, is
it Planning? I don't know, but that's another governmental
issue.
But the problem we realize is too many agreements
are made, and then we're stuck trying to resolve the problem
thereafter. And I'm sorry, I'm having a difficult time with
this. And it's nothing against you personally or the land
owner. It's a real challenge to face sometimes.
MR. HOLTER: May I comment?
MR. VICTORINO: Sure.
MR. HOLTER: I agree it's a big mess. In this
case, I think the difference is that there was an existing
water meter that comes from the 18-inch Kula transmission
line and that it's not burdening the existing Piiholo water
system. Now, had I been involved in getting the building
permit for this property, I would have done it a different
way. I would have approached the County. I would have made
these four proposals to begin with; however, I wasn't
representing the builder in the house. I'm only trying to
come in after the fact and trying to correct an issue that I
think would have been correctable had it been done properly
in first place.
But the issue to me is that this five-eighths
meter comes from an 18-inch Kula transmission line. It has
no impact on the Piiholo water system. All over the
neighborhood are homes and cottages that are on ag land that
exist on the Piiholo system today that come -- their source
is the -- is the Piiholo line. And yet this lot, the source
is the transmission line. And I think it's a different
situation, and I wish that they had used me to try and get
their building permit. I would have approached it from my
four-point position here. But unfortunately, it didn't
happen that way, so I'm coming in, stepping in trying to
provide a solution to rectify the issue so that we can move
on and finish this problem which has been going on now for
about three or four years. And I'm volunteering here. I
don't have any relationship with the applicant other than I
wanted to present solutions.
CHAIR HIRANAGA: Yes, Ginny.
MS. PARSONS: I know that we had problems at
Piiholo because I have a lot of friends that live up on
Piiholo, and they've had leaky pipes, low water pressure
system. We've got a lot of problems up there, and I think
that you probably -- it would probably be best to ask the
Department to give us maybe an overview of all the issues
that they've had to address over the last couple of years up
in that area. I know we had one where Jack Freitas was
calling me because we had water running down the highway and
they had very little water pressure. And we had to go find
the leak, so that was just recently, so maybe we need to
look at Piiholo a little bit closer before we make a move on
this.
CHAIR HIRANAGA: Okay. Just for the Board's
information, Lance Holter is not the applicant. He's just
providing public testimony. The applicant has not come
forward yet, so before we start going on tangents.
MR. JENKINS: I'm the attorney for the applicant.
CHAIR HIRANAGA: I know that. Brian Jenkins is
representing the applicant, so before we start getting into
the agenda item, Lance is just providing public testimony.
MS. PARSONS: Okay.
CHAIR HIRANAGA: Anymore questions for Lance?
Anyone else that wishes to provide testimony regarding this
agenda item? Seeing there's none, we'll close the public
hearing and hear from the applicant.
MR. JENKINS: My name is Brian Jenkins. I'm the
lawyer for Mr. and Mrs. Cutler. And, you know, one of
the -- and I was listening to Mr. Holter's testimony, and I
agree with what he was saying. But, you know, one of the
problems in this case is the requirement that's been placed
on the Cutlers, which is to put in 5,000 feet of 6-inch
ductal iron pipe, standpipes, pressure reducing valves,
basically taking care of the entire neighborhood within a
mile of their home for the privilege of building a
single-family home. Now, this seems to be an undue burden.
Your lawyer, the corporation counsel who advises you, will
tell you there needs to be a rational nexus or a reasonable
relationship between the burden that the Cutlers' project
will put on the County system and the obligation the County
can put on them.
And to have them, require them to put in a million
dollars of infrastructure at least for the privilege of just
having a single-family home really seems to be -- there
isn't a real rational relationship. Why should they fix the
problems for the entire side of the mountain for their
particular lot? We are willing to, you know, improve the
system in front of our property. We have wanted to offer to
give space for a water tank at the base of the property
that's owned by the County, anything that would have a
rational relationship between their impact.
But it doesn't seem at all fair to say, okay,
Mr. and Mrs. Cutler, retired corn farmers from Elsie,
Nebraska, gee, you happened to buy the boobie prize, and now
we want you to put in -- we want you to fix the problem for
the entire neighborhood a mile up the road without anybody
else putting in a dime. And they will have the right to
develop their property, subdivide, do what they want. And I
guess that's the main point I wanted to make is what is the
relationship between their impact and what the County is
asking from them. That's what I have to say.
CHAIR HIRANAGA: Any questions for Brian?
MS. RAISBECK: Yeah. Could you expand upon what
Lance was saying about the -- does the existing water meter
come off the Olinda line?
MR. JENKINS: I believe their existing water
meter -- they actually had two water meters initially, and
the one on the Piiholo line was removed. That's my
understanding. Their water meter they want to use is on
that big 18-inch Kula transmission line that goes along the
makai boundary of their property.
MS. RAISBECK: So they're not asking for water
from the Piiholo line; is that correct?
MR. JENKINS: No, they just want to be able to
build their house and have the water meter that they
currently have.
MS. RAISBECK: And the -- what the Department is
asking them to do is improve the or extend -- improve or
extend the Piiholo line?
MR. JENKINS: Right, and not only just in front of
their house, but almost a mile up the road. If you can
imagine this project with flagmen and digging up Piiholo
Road and putting in 6-inch ductile galvanized pipe and
pressure reducing valves and fire hydrants. I mean, yes,
the neighbors would love it, but why should my guys be stuck
with fixing a historically inadequate system for just the
privilege of building their home? It doesn't seem fair.
MS. RAISBECK: And what do you know about what was
in the -- what Lance provided that said that the already
existing water meter was given by the Water Department to
the subdivider owner as compensation for -- for a water line
easement, do you know anything about that?
MR. JENKINS: I haven't ever researched that
particular issue.
MS. RAISBECK: Could we maybe ask the Director
about that, Mr. Chair?
CHAIR HIRANAGA: Yes, go ahead.
MS. RAISBECK: George. Excuse me, George.
MR. TENGAN: Yes.
MS. RAISBECK: In here it says that the existing
water meter which comes off the Kula transmission -- the
18-inch Kula line was given to the subdivider owner as
compensation for a water line easement to the County. Is
that your memory of that transmission?
MR. TENGAN: I'm not familiar with how the meter
was installed for this line, but I do know that David was
pretty much a proponent of not hooking up services to
transmission lines. If it is, it is. But I'm not aware of
how it -- I'm not sure of how that came about. Anyway, this
isn't -- well, in response to -- I need to make one thing
clear about what Mr. Holter said. Although -- let's assume
that it is coming off of that 18-inch line, although it's
not a source problem for Piiholo, we have people on the list
further down the system that we would be depriving water of,
you know. In other words, if we grant a meter, an upsizing
of the meter, somebody down the road would be deprived of
water, and that person would be on the list, so it is a
source problem. But the big issue here as I understand from
the engineers is fire protection.
MR. JENKINS: If I might respond. Two things;
first, it's not a matter of issuing the meter. The meter is
there, so it's not a matter of will we issue a new meter.
The meter is there already. As far as upgrading the meter,
we're not seeking an upgrade of the meter. A five-eighths
meter is fine. That's also not an issue. With regard to
fire protection, we have already made engineering studies
and requirements to put in a chemical sprinkler system sort
of fire protection system. And I think that's really within
the purview of the Department of Fire Control anyway, but
we're working with them and we have and we're intending to
install a chemical fire suppression system.
MS. RAISBECK: Thank you.
CHAIR HIRANAGA: I have a question for staff. So
there was an existing 500 square foot cottage,
MR. CHANG: Yeah.
CHAIR HIRANAGA: And they're proposing to build a
2,000 square-foot residence?
MR. CHANG: According to the agreement that was
made back in the mid 1990's when this parcel was subdivided
and with this subdivision written into this agreement, they
deferred fire protection requirements, et cetera, which is
now triggered by this proposal. The subdivision would never
have happened if they had not entered into this agreement,
which was deferred temporarily. The water system
improvements required providing fire protection and
upgrading water services, so the issue here is fire
protection. And to answer your question, Mr. Hiranaga,
according to the plan map, it was the -- it shows the
existing cottage. And the subsequent permit that was
applied for in, let's see, 1999 or 2000 was for a second
dwelling, which I believe is the main dwelling.
CHAIR HIRANAGA: So is it the Department's
position that if they were to come in for a building permit
to enlarge the 500 square foot existing cottage that we
would also deny that request or oppose that request?
MR. CHANG: Correct, the agreement that was
entered into when the subdivision was made for this lot
owned by the Cutlers, it covers any type of building permit.
Residential classification would trigger the deferred fire
protection requirements, and all the other subdivision
requirements, that was deferred.
CHAIR HIRANAGA: Thank you. Kenneth.
MR. OKAMURA: So they are allowed to build a 500
square foot cottage because it's a small building, is that
the reason?
MR. CHANG: When they applied for the subdivision,
the building was already there.
CHAIR HIRANAGA: Yes, Sally.
MS. RAISBECK: Mr. Chairman, yeah, this is more
discussion than questions, so perhaps are we in discussion
on this item? We have closed public testimony. We're in
discussion?
CHAIR HIRANAGA: Yes, we closed public testimony.
MS. RAISBECK: Yeah?
CHAIR HIRANAGA: We closed public testimony. This
is the applicant.
MS. RAISBECK: What troubles me is I don't see any
reason -- we know that there are many people who would like
to subdivide land where water isn't available for whatever
reason and they want to subdivide for the purpose -- well,
family subdivisions so that they can transfer title. I see
no reason if any of those are granted that subsequent owners
who -- who buy the land shouldn't go for a plan review
waiver from Land Use and Codes, build a house and we will be
faced with the same situation many times.
On the other hand, this does seem to have elements
of uniqueness in that what they're being asked to improve is
not the system they're going to get their water from, which
is different. And I would like to know more about whether
the easement they gave the County -- essentially the
previous water director traded them a water meter for that
easement. I mean that's another sort of unique
circumstance. So I find this very troubling, and I'm not --
and I think it's a failure in our rules that they require --
that they require applicants to build. And I guess the
rules do not yet compensate them if they build say a mile of
line and other people join onto that line.
Do our rules -- can I from George or from Ed find
out do our rules yet exist in a form where if they build a
mile of water line and other people then attach to that,
they get compensated?
MR. CHANG: There is a provision in our rules and
regs that allows the Department to get what we call it a
main line extension refund, whereby a subdivider if he does
like a mile of pipeline that people can hook up to, he will
be reimbursed 50 percent of the construction cost of the
pipeline. And it's like a five-year 10 percent increment,
so five annual payments. If I could mention something else.
MS. RAISBECK: I'm sorry.
MR. CHANG: You mentioned something about this
property will be served by a different system. The intent
of the deferred water system implements was to place this
property on the upper Kula system because of the -- there
was a preexisting condition where the meter was already on
the lower system, which I believe was moved to the upper
system a few years back when the Piiholo treatment plant
came in. I can't confirm that, but I believe they were on
the upper system, which is the system we're asking the owner
to improve.
MR. JENKINS: May I? I have an observation. You
know, we -- the original subdivider, Mr. Bolton, did grant
an easement in favor of the County of Maui through the
Department of Water Supply on August 8th of 1980. It's
recorded in the Bureau of Conveyances Book 14930, Page 114.
It's an easement for water system purposes. That's the
easement that we're talking about. And in exchange for this
grant of easement that Mr. Bolton, who is my client's
predecessor in title, he then obtained a water meter back in
1980 as a result of that swap as it were.
MS. RAISBECK: Did that water meter come off that
18-inch pipeline?
MR. JENKINS: That's my understanding.
MR. CHANG: The change in conditions were we put
in a brand-new water tank and treatment plant, and through
the operational requirements, we had to switch over the
meter to the upper Kula line.
MS. RAISBECK: Mr. Chairman, could I move that we
defer this item for further information from the Department?
I would always rather like to see information on paper
rather than, you know, sort of elicited verbally, because I
get confused if it's all verbal. Well, I would like to make
a motion to defer.
CHAIR HIRANAGA: Okay, there's a motion on the
floor to defer. Is there a second?
CHAIR HIRANAGA: No second. Motion dies.
MR. JENKINS: I would like to make one other
comment if I could with the Board's permission is that
Mr. Bolton was the original owner of this property. After
he subdivided it, he then sold it to people named Delperdang
who were from Mississippi. The Delperdang's sold to my
clients, the Cutlers. Now, under the agreement with the
Board of Water Supply, Mr. Bolton within ten days of the
conveyance had to notify the Board of Water Supply of the
conveyance so the Board could take appropriate action.
There wasn't any such notice. The Delperdangs had the same
obligation, notify the Board within ten days. Nobody
notified the Board.
My guys, the corn formers from Nebraska come and
buy this thing. All these other people are smelling like
roses. Boy, they've made a ton of money. They've
subdivided. They've sold their land. And my guys come
along, and there's not even a penalty for their predecessors
in title, the ones who actually made the agreement with the
County, the ones who made all the money and are making out
like bandits. And my guys come along. They're the only
honest ones who actually are applying for all the permits.
And it's like they get the boobie prize. Here, put in a
mile of, you know, pipeline. Fix the problem for the whole
upper part of Piiholo Road, Mr. and Mrs. Cutler. I mean
it's just an incredible situation.
CHAIR HIRANAGA: Yes, Dorothy.
MS. PYLE: I absolutely hear what you're saying,
but what we actually come back to right down from the very
beginning of this whole thing is responsibility. The
Boltons, maybe I've got the name wrong, weren't responsible.
The next people weren't responsible. The architect wasn't
responsible. And here we are with the expectation that a
board here, which is trying to support our Department of
Water Supply is now supposed to fix this for all these
irresponsible people. You know, I really feel very sorry
for your clients, but where was their attorney when they
bought this property? Where was the realtor? Where is the
responsibility on that level that didn't check out what all
these permits and all of these requirements were to start
with?
I'm sorry, you know, I think it's irresponsibility
and what can we do about it? If we give everybody a waiver
who comes in and says, oh my goodness, before me, somebody
wasn't responsible, we're going to be giving permits to
everybody.
MR. JENKINS: If I could respond. In response to
your comments, which I agree with, I will represent to you
that a civil action has been filed. And actually, we're in
the mediation section, which is one of the reasons why we're
here. Judge McConnell, as our mediator, said try to go back
to the Board, see if you can work something out. But yes,
we're in hot litigation because we're saying we got
defrauded, okay.
But the other thing I have to come back to is what
the law is. There has to be a rational nexus, a reasonable
relationship between the burden that this extra
single-family house is on the Piiholo system, the upper Kula
system and the obligation the County can put on them. So,
yeah, there's responsibility. But is there a reasonable
requirement or relationship between this additional
single-family house and a mile of pipeline that's fixing a
historic problem? That is the problem. The requirement is
too high.
It's a matter of law. This type of thing has gone
up to the United States Supreme Court because counties are
doing bizarre things saying, hey, you're going to build a
house, how about putting up a new elementary school, because
after all, our existing infrastructure isn't there. You
can't do it. It's against the law. There has to be some
reasonable nexus relationship, and a mile of pipeline with
fire hydrants and pressure reducing valves and a million
dollars of infrastructure is not reasonably related to the
burden that my client's little dinky single-family house is
going to have on the Piiholo system.
And that's what we're asking. You know, even if
we're saying, okay, we're responsible, you got us, is this
requirement rationally related? I would suggest to you that
it's not.
CHAIR HIRANAGA: Yes, Ginny.
MS. PARSONS: With regard to the fire flow issue,
I agree with you. I don't think the one family -- one
family should have the burden. I do agree with Dorothy
there's a lot of issues, and you have a civil issue behind
you. It was my understanding, George, maybe correct me,
didn't we have the fire department making these decisions on
the fire flow, what protection they would grant as they
would like sign off on?
MR. TENGAN: We have our own standards that we
follow.
MS. PARSONS: But didn't we hand that back over to
the fire department and they have to sign off on these
things as far as fire department issues?
MR. TENGAN: They sign off on the building
permits.
MS. PARSONS: So if they're happy with what the
customer is willing to put in for fire flow, that takes our
issue of the fire flow out of there, even though I know that
we need to get Piiholo taken care of and lot of other areas
the CIP needs to be done. But if we're out of the fire flow
aspect of this thing and now it's just a matter of can they
use the meter that's on the property.
MR. TENGAN: I don't think in all cases the fire
department signs off on the building permits.
MS. PARSONS: But could they?
MR. TENGAN: They could if they're brought into
the loop on residential building permits.
MS. PARSONS: Because I know that sometimes when
you go in, you can have them, they look at the plan and
maybe that's an area that we look at from the fire flow. My
other question is if they already have a 500 square foot
building on the property, if they were to make an addition
on that rather than a new structure, would it fly then,
would their building permit fly then if they were just going
to make some additions on there?
MR. TENGAN: I think the key there is the 216
agreement, the family subdivision, the Rule 216.
MS. PARSONS: Do you have it in there so I can
review it, is it in our packet?
MR. TENGAN: It's described in our staff report.
MS. PARSONS: Here it is on Page 21. So why was
that -- tell me what that does.
MR. TENGAN: It basically allows families to
subdivide land so that they can transfer titles to their
successors, to their descendants.
MS. PARSONS: But how does it affect this
property?
MR. TENGAN: This property was subdivided under
this rule here and this rule requires that when structures
are to be built and the system has to be upgraded.
MS. PARSONS: But if they're just going to add on
to an existing structure, would that necessarily fall into
this category?
MR. TENGAN: If the existing structure had to come
before us prior to construction, we wouldn't have approved
the structure.
MS. PARSONS: Say that again. I didn't understand
that.
MR. TENGAN: We don't always see the first and
second building permits on every property for some. Maybe
Herb can explain that process.
MR. CHANG: We're kind of evolving on this. When
the Department sees building permits, those kind of permits,
the current situation is if the applicant has an existing
structure and say existing building for a dwelling and he
comes in for a second dwelling, I think back in the mid
Nineties, we may not have seen these permits. But under the
current permit processing, we do see these second dwellings
now. And we have -- because I have found this agreement
also, it has the same kind of residential structure. It
triggers this improvement that needs to be complied with.
MS. PARSONS: That's for a second dwelling though,
not for addition to the first?
MR. CHANG: The way this agreement is written,
it's -- no residential building permit for additional
dwelling requested by a subdivider for the subsequent
grantee.
MS. PARSONS: Additional. What I'm saying is if
the owner were to add on to the house that they currently
have.
MS. PYLE: They've already built the second house.
MR. JENKINS: Right, they have a stop work order.
MS. PARSONS: You're in the middle of it, I'm
sorry.
MR. JENKINS: It's actually close to being
finished.
MS. PARSONS: You're in the middle of building
this house.
MR. JENKINS: So we're willing to make that
initial house a storage house, you know, anything. It
wouldn't be ever used.
MS. PARSONS: How did they -- how did you get that
far along? I mean --
MS. PYLE: The architect didn't do his job.
MR. JENKINS: There was a process called a plan
review waiver; whereas, they get the approvals as it went
along. There is a problem. I don't know if the County
still does that anymore, but down at one of the beaches in
Makena, there's a big problem with that as well. And also
in this particular case where, you know, a building signs
off, all sorts of departments sign off, and all of the
sudden it gets to the Board of Water Supply, and they say,
hey, we have this agreement.
MS. PARSONS: Who was your contractor?
MR. JENKINS: Mr. Stiller I believe from Pacific
Pole Homes.
MS. PARSONS: You know, this is an issue that
needs to probably go before Planning, and I know this has
been done in the past because they do it sometimes in
Hawaiian Homelands. I sell package homes, so I'm pretty
familiar with how they do it. And they kind of jump the gun
before the final permits are issued. And there's a rule in
there that says that you pay double the cost of your
building permit in order to do this. There is a rule that
allows people to go forward. But this is an issue I think
that needs to go back to Planning and Planning needs to deal
with how they're going to handle this. And maybe if they
don't want that rule to exist that's in there that allows
people to go forward, that they need to put some kind of
penalties up against the contractor for jumping the gun or
the homeowner. But I don't think this is our issue. I
think they've allowed them to go forward. We are planning
to make some decisions on how they're going to handle this
because they do allow this to happen. And the fact that it
didn't get cleared from us, like Dorothy said, they were
remiss. But Planning has allowed them to move forward, so
it's a catch 22. I think we defer it to Planning and maybe
that's the motion that needs to be made until they can come
up with some objectives to get this cleared.
MR. JENKINS: If I might make a comment with the
Board's permission. Again, I need to stress that I would
suggest the Board figure out what is a rational relationship
between what my client's burden should be and because of the
impact on the water system. So should they be forced to do
a whole mile of line, or should it be something less?
There's nothing in the family subdivision agreement that
says if you get a building permit, you have to put in a mile
of line. That is the discretion of the Water Board. This
is where we have to get to what is a rational relationship.
Should they have to improve the entire upper portion of
Haleakala for their permit? What is rational?
And that's what I think the Board has to come back
to and say, yeah, we would love to have a mile of pipeline,
but come on, you guys, what is the rational relationship
between this house and what we can basically get out of
improvements? And so, as I said, my guys are willing to put
in improvements in front of their property. Apparently, the
County also needs this little water tank on the makai side
of the property redone. We're willing to give an easement
so the County can upgrade its infrastructure. We're willing
to do all kinds of things, but it just seems so egregious to
ask for this huge mile of pipeline. That's the real problem
here. And this is totally within your folks' discretion.
CHAIR HIRANAGA: Mike.
MR. VICTORINO: I'll defer to Dorothy. I'll let
Dorothy go ahead, and then I'll go after Dorothy. Okay,
Dorothy.
MS. PYLE: I actually think what you're saying has
lots of merit to it, but if you want something to move
forward fairly quickly for this Board or even perhaps for
the Department, to come up with those kinds of ideas about
what is fair or just is going to have to take a lot of
research. Because it would seem to me that there are
probably a lot of examples of exactly what you're talking
about that have happened in the past 10, 20, 30, 40, 50
years of what's happened in the County of Maui. And we
would probably need to see how has this been handled in the
past? Have other people been required to do this also, and
at what burden has it been to them, what percentage of their
property values if those are the kinds of things that you're
looking for. We don't have that kind of information.
And I don't think that we would be in any way
keeping with what we should be doing if we just jumped the
gun and shot from the hip and said, oh, this seems
impossible. So if you want us to do the research, you're
going to have to wait for it.
MR. JENKINS: Okay, I would like to make one other
comment. Initially, this property had two water meters, one
on the Piiholo system and one on the 18-inch line. The one
on the Piiholo system has already been removed. That in and
of itself has reduced the burden on that Piiholo system.
MS. PYLE: Who removed it?
MR. JENKINS: Not us. It must be you. Because it
certainly wasn't us. And that in and of itself has had a
positive impact on everybody else who uses that upper
Piiholo system. So, you know, what is fair? What is
rational? Yeah, you could do a huge study and hire the Rand
Corporation and various think tanks or you could just say,
come on, what is fair? We gave up our water meter on the
Piiholo system. That's a huge impact right there. We have
a water meter on this monster 18-inch transmission line that
was given quid pro quo in exchange for an easement that the
County needed.
MR. VICTORINO: May I? I deferred. I didn't say
it was your turn. My turn. Sometimes you have to be real
patient, let everybody say something and then you say what
you need to say. Mr. Jenkins, Mr. Holter, I appreciate your
presentation, excellent, very well thought out. But again,
I go back to my original point. Wrongs were done, and now
you're coming to us to correct the wrongs, okay.
Whether you're a corn farmer from Nebraska or some
fat cat from Beverly Hills, it doesn't make a difference in
my mind. Who did right, who did wrong really doesn't fall
onto us, and you have legal action, so maybe that's what
also I would like to say. Get your legal action done and
then come back to see us. Maybe that's what needs to be
done. Studies need to be done. We can't arbitrarily and
capriciously decide we're going to do it for you because
we've had other people walk in and we've said no to them.
It's not in offense to your owner or the previous
owners, but this is the way things have been done too long.
And I think the present administration is making a
tremendous attempt to correct it. You also made that you
came up and told the truth and that's why you got caught.
Well, you built a house, and that's what all this brought
up. Had you not built a house, none of this would have been
brought forth, am I correct, Mr. Jenkins?
MR. JENKINS: That's correct.
MR. VICTORINO: So with that in mind, whether it
was done because the architect didn't do his studies or
whomever did not do their do diligence, you come back to us
and ask us for a solution even if you're just referring to
the fact what is proper and right and fair, I still can't
answer that question because it is too broad.
And I agree with Dorothy and I agree with Ginny
and I agree with all of our people here this is a cumbersome
problem. And if we say yes to you now, we open the
Pandora's box. We open the road for everybody else to come
charging in and say, well, I have a similar situation.
We've got to make a stand somewhere and say, no, we can't do
this. We've got to do it right so that in the future, we
have, in your case, like one lawyer would say, you have a
case study to go back to this is what we've done in the past
and this is fair and equitable to all.
Whether you're a corn farmer from Nebraska, no
offense, or some fat cat from Hollywood, it doesn't make a
difference again in my mind. We've got to be fair and I
think deferring the thing, I don't know what we want to do
at this point. I cannot take action because there is too
many gray areas and too many people responsible or did not
take responsibility for the action that has left your
client, excuse me for being honest, your client holding the
bag.
MR. JENKINS: And if I might respond, it's not
that we're trying to say, hey, give us a break, let us off
the hook. We're just saying what is reasonable? Is a mile
of pipeline, because this is not a new thing. You guys are
bound by this. It's been up to the United States Supreme
Court. Your corporation counsel will tell you this is
established law. This is not anything new for you, and so
would it be fair to say we would like another couple of
reservoirs about the size of the Kahakapao reservoir in
exchange for this? Well, how about a mile of pipeline?
Well, you know, so it comes down to, and this is what you're
already stuck with. This is not anything I'm coming to you
and saying please give to me. You're stuck with it. I'm
saying is this reasonable, and I suggest to you that it's
just patently unreasonable.
CHAIR HIRANAGA: Yes, Dorothy.
MS. PYLE: It just seemed that this also is a
reflection on the fact that we're becoming more populated
and there are more houses and so on. I don't know the fact
of this. I've lived on Maui nearly 35 years. Some people
have lived here all their lives. I don't know the fact of
how Piiholo and Olinda really developed, but I do know from
my own personal experiences that other people in Kula have
had to put in very extensive water systems to build their
houses and when Olinda and Piiholo were first being
developed, my guess is those houses were pretty darn far
apart and they had to put the water improvements in.
So I think that there's some really interesting
historical things to consider here, but now just because
people live 50 feet from each other, a mile seems really
inappropriate. But when people lived five miles apart, a
mile didn't. So we have to think about those things from
other points of view.
MR. JENKINS: But the other thing is already the
Water Department has taken my client's second water meter.
Okay. Now, what does this mean? Will they give it back to
us pending an outcome? Because if it was taken for no
compensation, that doesn't seem fair either. And we had two
water meters. Now we have one.
MR. VICTORINO: Are we finished in discussion
because I would like to make a motion?
MS. PARSONS: I'll be quick I promise.
MR. VICTORINO: Okay. Go ahead.
MS. PARSONS: Your issue isn't the missing water
meter. Your issue is the requirements for the subdivision.
And I'm still perplexed at whether it's an addition to the
house or in addition to the residence that this is falling
under, and it may be simple for you to attach that dwelling
with beams on the new house to the old cottage and that
become an addition. It may be that simple, but I think you
need to go back to Planning and get them to give you the --
to clarify this issue. Because you can attach a whole
dwelling with a beam, so the roofs match. And it's just an
addition to the original dwelling.
MR. JENKINS: Unfortunately, these two structures
are on almost opposite sides of the two-acre parcel, so a
breezeway would not be a solution here. But if there is
research that you folks want to do in order to make a
decision based on all of the facts, I would encourage you to
do that research before just making a decision.
CHAIR HIRANAGA: I feel procedurally to allow the
Department to provide their side of the issues. At this
time, does the Department wish to add any additional
comments to their staff analysis?
MR. TENGAN: I guess we stand by our staff report
and our recommendation.
CHAIR HIRANAGA: Thank you.
MR. VICTORINO: Mr. Chair.
CHAIR HIRANAGA: Yes, Mike.
MR. VICTORINO: I would like to make a motion, but
before I make that motion, I would like to make it clear to
Mr. Jenkins and Mr. Holter that this motion I make is to
bring some conclusion to today's discussion and not preclude
that if studies or other things can be brought forth and
brought some justification or some cost analysis can be made
that we would not reconsider at that point. But I'm going
to make a motion to deny this waiver, the waiver, I'm sorry.
I move that we deny the waiver.
MR. OKAMURA: Second.
MR. VICTORINO: Yeah.
CHAIR HIRANAGA: So the motion is to deny the
request. Is there a second?
MR. OKAMURA: Second.
CHAIR HIRANAGA: Seconded by Kenneth. Any
discussion? No discussion. Calling for the vote. All in
favor to deny the request indicate by saying aye.
(A chorus of ayes.)
CHAIR HIRANAGA: Any opposed?
MS. RAISBECK: No.
CHAIR HIRANAGA: Let the record show that Sally
voted in opposition to the motion, but the motion does
carry. Thank you.
MR. JENKINS: Okay. Thank you.
MS. PYLE: Just a question. What is the status of
our rules about whether we can actually make any decision
right now?
CHAIR HIRANAGA: It's not on the agenda. Let's
talk about that later. You can put that as a request for
the next agenda item.
MS. PYLE: I'm not sure what we voted on.
CHAIR HIRANAGA: You're not sure of the motion?
MS. PYLE: I'm not sure that the Board has the
authority to make a decision saying we deny a waiver. I
think we can make a recommendation. I don't think we can
deny the waiver. It's not within our purview to do that.
MS. PARSONS: I agree.
MS. CRIVELLO: Recommend.
CHAIR HIRANAGA: Mr. Corporation counsel, should
we amend our motion to say we recommend to the Department
that the request be denied?
MR. KUSHI: Yes, Mr. Chair, maybe that should be
in order. As I understand this matter on the agenda, it's
under communications. It's a letter from Mr. and Mrs.
Cutler. It's not an appeal per se according to the rules.
Even if it was, your decision on any appeal would be a
recommendation. So in this case, I guess it's a motion
to -- a response to the letter from the Cutler's motion to
deny the request for a waiver.
CHAIR HIRANAGA: Recommend?
MR. KUSHI: Recommend to the Department.
CHAIR HIRANAGA: We include the word recommend?
MR. KUSHI: Yes. That being the case, I think a
motion is in order to amend, to reconsider your previous
motion.
MR. VICTORINO: I move we reconsider the previous
motion.
CHAIR HIRANAGA: Is there a second?
MR. OKAMURA: Second.
CHAIR HIRANAGA: Moved by Mike. Seconded by
Kenneth.
MS. PARSONS: I would like to make one more -- if
we're going to have some discussion here.
CHAIR HIRANAGA: Let him state his motion first.
MR. VICTORINO: Well, I would like to do it the
right way so that we change the word to have it properly as
a recommendation.
CHAIR HIRANAGA: To include the word
recommendation?
MR. VICTORINO: To include the word
recommendation.
MS. PARSONS: And since we've opened it back up, I
just want to make one point. I know you were pointing out
to me about the building permit was the issue in here. But
I go back to this application. It's a waiver in there, but
it got this far along. I don't even think we can recommend
to deny anything until they go back to Planning. I mean
this -- the first part of the two-part series there; one was
no water meter. One is no building permit has already been
-- it's already gone through. I think you need to go back
to Planning and have them give us an issue and then we make
a decision whether we recommend or deny. That's what I
think the motion should be.
CHAIR HIRANAGA: My understanding of the plan
review process is that the architect represents that all
conditions will be met before the occupancy permit shall be
issued. So at this point, the architect failed to discover
that a building permit should not have been applied for
initially. I believe the responsibility goes back to the
architect for initiating the process or allowing the process
to continue under the plan review waiver.
MS. PARSONS: I agree with that, except for the
fact that I've seen cases where you've gone in to get a
permit and then the Planning Department has denied because
they've done their research. So the Planning Department
doesn't just give you a permit not looking at TMK's and not
looking at conditions on CC and R's and everything else.
They look at what has to be there. And if they've gone this
far, they've done it. They're supposed to have done their
job, so they know what this piece of property was.
MS. PYLE: Supposed to.
MS. PARSONS: They're supposed to. And they do it
in other cases. I've seen things denied because people
haven't followed and they don't even get to this process.
Somehow they got to this process. It needs to go back to
Planning. It's pretty clear to me it's not our decision
right now. Planning has got to tell us how they got to this
and what they want to do about it and give us a letter on
how they got to this point, and then we make a
recommendation to deny or to proceed. But Planning has
already violated the first part of this agreement.
CHAIR HIRANAGA: Yes, Brian.
MR. MISKAE: Mr. Chairman. Brian Miskae for the
Planning Department. For the record, the Planning
Department does not administer the building permit section
or the plan review section. It's the Department of Public
Works and Environmental Management, so the reference should
be to them and not to the Planning Department.
CHAIR HIRANAGA: Thank you for the clarification.
MS. PARSONS: So be it. I agree.
CHAIR HIRANAGA: Any further discussion? If not,
I call for the vote. All in favor of the vote.
MR. KUSHI: My understanding, Mr. Chair, is you're
deliberating on a motion to reconsider your previous action?
CHAIR HIRANAGA: Right, so we're just voting on
whether to reconsider.
MR. KUSHI: Correct.
CHAIR HIRANAGA: So the motion is all in favor of
the motion to reconsider the previous action, all in favor
say aye.
(A chorus of ayes.)
CHAIR HIRANAGA: Let the record show it's
unanimous. Now you wish to amend your motion?
MR. VICTORINO: Well, no, I make a new motion,
right?
CHAIR HIRANAGA: New motion.
MR. VICTORINO: Make a new motion, yeah. I move
that we recommend to the Board --
CHAIR HIRANAGA: To the Department.
MR. VICTORINO: To the Department I should say, to
the Department to deny this waiver being requested by -- the
Holters?
CHAIR HIRANAGA: Cutlers.
MR. VICTORINO: Cutlers, excuse me, I've got so
many names in front of me, I can't remember. By the
Cutlers.
CHAIR HIRANAGA: Is there a second?
MR. OKAMURA: Second.
CHAIR HIRANAGA: Seconded by Kenneth. Discussion?
No discussion. Call for the vote. All in favor of the
motion, please so indicate by saying aye.
(A chorus of ayes.)
CHAIR HIRANAGA: Opposed.
MS. RAISBECK: No.
MS. PARSONS: No.
CHAIR HIRANAGA: Let the record show that Ginny
Parsons and Sally Raisbeck voted in opposition, but the
motion does carry. Thank you.
The next agenda item is unfinished business
regarding Mark and Denyse Collins. Does the Department wish
to add to the staff report?
MR. TENGAN: No, Mr. Chair, we don't have anything
to add at this time.
CHAIR HIRANAGA: Mr. Collins, do you wish to
provide testimony?
MR. COLLINS: Okay, my name is Mark Collins, and I
want to thank the ladies and gentlemen of the Board and
employees of the Department for this opportunity to present.
To start off, I'm just a little bit perplexed that the
Department doesn't have a criteria for remote meter
installation because this is what was to be the next step.
And, you know, I've been put on the agenda as unresolved,
unfinished business, and I was here on May 22nd of this
year, and this was -- I was expecting that. The Department
was going to do a criteria.
And then we would see, you know, from that, you
would be able to make a determination or a recommendation
regarding our request for this remote meter installation.
With that, let me also say that we're under a bit of a time
fuse. When you -- when we reserved the meter, there's a
two-year period that you are to move forward with
installation of the meter. And so further delays puts more
pressure on us in that regard. I also understand that the
Board is -- would be the people or the -- if we were to
request an extension, which is possible under the original
rules on a reserved meter, you go before the Board, but it's
not clear whether the Board has that jurisdiction anymore.
So I can have a tendency to be longwinded and I
can, you know, make this very complicated or we can make it
relatively simple. We'll see how it goes. I believe you
have the handouts that pretty much lay out the situation and
what we are requesting is the same rights and privileges
that our adjacent neighbors have; that is, to have their
water meters on a remote site on Olinda Road. And the
current situation is that the Department is saying, no, we
don't really want to do that for you, allow that. We want
you to make a main line improvement. Of course, in their
wording, they say it's a main line installation, but in
reality, it's an improvement because there is a two-inch PVC
line that is the responsibility of the Department to
maintain, and it was there.
They have a role in this because they put in this
two-inch line. So they're saying to us as the lot owner,
put in 800 feet of 6-inch ductile steel, and we will allow
you to hook up your meter adjacent to your property. And
this is we see as an unfair burden to us as the land owner.
Because let's think for a moment what a public utility is
about. Public utilities are set up to share the costs and
to make services available at reasonable costs to the
property owner.
And this is not what, you know, this isn't fitting
within that -- that type of role that a public utility has.
So now to cut to the chase, how do we come to a reasonable
resolve on this? How do we stay within what is within one
of the rules regarding installation of a new water service?
There is a Section 3-5 that says all meters shall be
installed along the property boundary or where reasonably
feasible. So we in a letter to David Craddick asked what we
think is reasonably feasible, and this is what we're asking
the Stiles to do, our immediate neighbors to do and to use
the remote meter.
Now, I've had discussions with the current
director and his staff, and I understand their concerns
about remote meters sometimes thinking they can get
unwieldily and in the past, they have caused some problems
for the Department. So my proposal is given that there is
this two-inch line that's over 30 years old that is the
responsibility of the Department, that there is an existing
CIP project that's been put on hold to replace the line,
that the Department allowed us on an interim basis be able
to hook up at the remote site that our immediate neighbors
have. And when the time comes necessary for the Department
to do this capital improvement on Alaluana that at our
expense we would remove the remote meter and then reinstall,
pay for the installation adjacent to our property when that
capital improvement project takes place. So that's it in a
nutshell.
Just to give you a little more background on why
this is an appropriate way to deal with this is that when
we -- when the Department gave us the opportunity to
purchase or to reserve a meter, this was done as a decision
by I believe -- my understanding is corporation counsel and
their recommendation to the Department that there is a
certain reliance that they have for these owners of old lots
that are in older subdivisions to provide water service.
And this is -- this is why a certain number of property
owners were given this opportunity to reserve meters, and it
turns out to be a two-step process. You reserve the meter.
Then you work out, you know, how you're going to get it
installed.
But also keep in mind as you review this is,
because we've paid for the reservation, that amount of water
for a single-family residence has been set aside in the --
in the planning. You know, the Department says, yeah, there
is adequate water for this. Also the Department has said in
their most recent recommendation to deny this remote meter
request an issue regarding fire protection. My contention
is that it is not an issue. It's a nonissue for a number of
reasons. One is that we have an existing home, and this
doesn't represent new development. We receive -- you know,
hour home is legally permitted and it did, you know, it was
approved by the fire department. And we are on water
catchment. We have a 35,000 gallon catchment system.
The County recently in 2001 adopted a new standard
regarding fire protection in rural areas. It's a document
that's very hard to get your hands on, but you can order it
on line for $30. And I've done that, and we meet the
standard by having that large of a catchment system. And,
in fact, should there be a fire in the neighborhood, the
fire department is going to look to our system as -- and we
would be happy to do that to provide backup water for the
pump or trucks. So I see this as a nonissue. We meet that
standard.
So once again, what I'm asking for is your
recommendation to say, hey, on a temporary basis until the
capital improvement project takes place, allow these folks,
allow this lot owner, we already have a reserved meter, to
set up at the remote site.
CHAIR HIRANAGA: Thank you, Mr. Collins. Any
questions for Mr. Collins? Yes, Sally.
MS. RAISBECK: Yeah, thank you. Do you -- that
map that you showed has the lot in question in yellow and
the ones outlined in red would be adjacent lots that do have
remote meters?
MR. COLLINS: That's correct, and so there is an
existing water meter easement going out to Olinda Road.
MS. RAISBECK: So that would run along sort of the
joint property, the back of the properties?
MR. COLLINS: The back side of the property, and
it only represents one easement, only one property.
MS. RAISBECK: I see. And do you happen to know
when those three lots got their permission to install their
meters remotely?
MR. COLLINS: I believe -- I hazard to guess. I
believe the last one was in -- you know what, I shouldn't
really say because I'm not sure.
MS. PYLE: Five years, ten years, 15 years?
MR. COLLINS: See, there was a sale of a property,
and this lot here would -- is about five years in the
exchange from one owner to the other. And I'm not sure if
that's when that meter was improved, so I'm not sure. I
know that the -- these homes like the home that is here and
the home that is here, this would be a more recent one, and
that is probably in the mid '80s when that house was built.
MS. RAISBECK: Mr. Chair, might I ask the
Director, George, can you explain the reason why the three
adjacent properties were allowed to use a remote meter but
this property is not? What's the rationale for that?
MR. TENGAN: In the past, the Department used to
install remote meters; however, in the recent years I
believe because like four or five years ago, the Department
was instructed by the Board not to install anymore remote
meters and to comply with the rules strictly.
MS. RAISBECK: So in your knowledge --
MR. TENGAN: So since then, we haven't issued any
remote meters.
MS. RAISBECK: Thank you, Mr. Chair.
CHAIR HIRANAGA: Go ahead, Clark.
MR. HASHIMOTO: So you said there was going to be
a CIP project?
MR. COLLINS: My understanding, and is Ellen here?
I think one time I asked you about that. She might be able
to elaborate on that, that there is a plan to improve, a CIP
plan to improve the line on Alaluana.
MR. HASHIMOTO: Do you know the date for that?
MS. KRAFTSOW: It's not -- it's not currently in
the five-year schedule, so it would be in the unscheduled
projects section.
CHAIR HIRANAGA: Yes, Dorothy.
MS. PYLE: Is it possible to ask the Department to
give us their perspectives on the request from Mr. Collins
to do this as a temporary project or a temporary
possibility?
MR. TENGAN: We would definitely have to take a
look at that because then, you know, like you said earlier,
there may be other similar situations and it would impact a
lot of people and impact the system significantly. So we
could take a look at it, but I don't think much would come
out of it.
MR. COLLINS: Could I respond to that? I don't
understand the aspect of impact the system. We have a
reserved meter, which means that the Department has set
aside, you know, a certain amount of water for this meter.
So this is not -- doesn't fit within the aspect of impact to
the system as far as the availability of water.
MR. TENGAN: There are other situations where the
requesting or have been requesting remote meters, and so
far, we've denied these requests. Following this round of
issuing meters, when Pookela comes on line, there will be a
lot more requests for remote meters or situations where
people -- in similar situations where people could ask for
remote meters, and our system would continue to be
inadequate to serve them properly.
CHAIR HIRANAGA: Yes, Kenneth.
MR. OKAMURA: I wanted to ask the rules state that
there should be no remote meters installed; what do the
rules say?
MR. TENGAN: As Mr. Collins was saying --
MR. OKAMURA: What section?
MR. TENGAN: 3-5 Paragraph G. It says, "No service
lateral water mains will be installed by the Department in
any private" -- wait a minute. Okay. At the end of that
paragraph, second to the last sentence, it states that all
meters shall be installed along the property boundary or
where reasonably feasible unless the Department because of
operating necessity installs the meter elsewhere.
MR. OKAMURA: What would operating necessity mean?
MR. TENGAN: It could mean a whole lot of things,
accessibility to the meter and items like that. I guess
it's left to the discretion of the Department, you know,
whether these situations would be allowed or not.
MS. PARSONS: Mike.
MR. VICTORINO: Are you finished, Kenneth?
MR. OKAMURA: Yes.
MR. VICTORINO: Ginny.
MS. PARSONS: I go back to the same thing over and
over and over again. Once the Planning has put together a
subdivision and we've done the subdivision and you have
owners, property owners, our job is to provide the water and
the water source. That's our job. That's the job of the
Department. If there are other meters in the back back
there, one more meter the meter reader is going to have to
read, he's got to go back there anyway to get to the meters.
Our job is to provide the water. Our job is to provide the
CIP's. Our job is to get the fire flow fixed. That's our
job. And the fire department, we've said this before,
they're the ones that are in charge of the fire. We gave it
to them I don't know how long ago, and they are the ones
that sign off. And if they're happy with your tank, that
shouldn't be a preventive.
And if the subdivision is there and we're already
reading meters back there, there shouldn't be a reason not
to. Now, my question is if they've reserved the meter and
they paid for the meter, did your number come up on the list
and that's how they got it, or so they're not jumping ahead
of anybody, right?
MR. TENGAN: I presume he's on the list and we got
to him as far as the number, you know, the people.
MS. PARSONS: So just looking at that, his number
is on the list, his number came up. There's other meters
back there. And he's willing to sign a release or an
agreement that when such time to do the improvements, he'll
move the meter himself at his own cost, I don't see any
reason we should deny this. We should recommend that he be
able to have his meter. Our job is to provide water.
CHAIR HIRANAGA: Yes, Clark.
MR. HASHIMOTO: So on this map, where would you
have to do the improvements, on what, on Alaluana Road?
MR. COLLINS: I need a little more clarification.
To do the remote meter you're saying?
MR. HASHIMOTO: To put the meter on your property,
where would you get the water there?
MR. COLLINS: There is the line of adequacy is on
the corner of -- this is Piiholo right here, and there is --
that's the point of adequacy to then make the replacement,
and that's what the key word here is, replacement of the
existing two-inch PVC line, that is the responsibility of
the County, it would be approximately 800 feet and our
burden to bring it to the front of our property.
MR. VICTORINO: And what would the cost be
involved?
MR. COLLINS: It would be prohibitive for us, but
it's in the neighborhood of $60,000 give or take $10,000 or
so. Also keep in mind that there are I believe four meters
servicing five homes downstream, none upstream where we
would be ending the improvement. And so, you know, we would
be doing what a public utility should be doing, which is,
you know, making the improvement.
MR. HASHIMOTO: Is there a possibility of your
neighbors chipping in to make the improvements?
MR. COLLINS: They are living with slow flow, but
they're willing to do that versus come up with the money.
Also keep in mind, because this is not a subdivision
request, we don't fall under the possible agreement with the
subdivider that the County reimburse 50 percent over five
years. When I met with the Department head, the Director,
he was not clear and could not promise that if we were to
make this improvement that we would be able to do what a
subdivider would do and that is get 50 percent
reimbursement.
So we would -- we would have to do this with full
financial responsibility, and it's prohibitive.
CHAIR HIRANAGA: Yes, Kenneth.
MR. OKAMURA: I think we've got to follow the
rules and be consistent. Originally, I guess the Water
Department was making exceptions and allowing meters to be
placed off of the property, but as of, you know, the last
request by the Board was that all meters be placed on the
property. So now we're going to go back and we're going to
change back, so we should be consistent. I think we've got
to either change the rules, and if we do allow this request,
before we do it, we should ask the Director to see what kind
of impacts it would have on those that we denied previously.
MR. COLLINS: I would just respond that, you know,
in the rules, there is the phrase where reasonably feasible,
and that is one of the main points of our request. And this
is where the Department -- I could see where they would be a
little hesitant to make a judgment call, and this is
where -- this is where the Board can come in and feel more
comfortable about making that type of judgment call about
whether this is a reasonably feasible request or not.
CHAIR HIRANAGA: Yes, Kenneth.
MR. OKAMURA: I would be concerned about those
that have been denied prior to this after the Board said
that they would, you know, ask the Department not to allow
anymore off-property meters. And we should look into that
first, you know, and then if we find that, maybe we should
just change the rules or something like that. But it would
be hard to make a decision today on this now.
CHAIR HIRANAGA: Yes, Mike.
MR. VICTORINO: Mr. Collins, again, you heard the
discussion in the prior case. Again, I feel that somewhere
along the line, somebody didn't do their do diligence in
this whole equation. If we let one go again, for whatever
reason, we open up the door for others to do it the same
way. Whether you have a reservation or not is not the issue
at this time. The issue is we have denied in the past and
more recent past doing offsite water meters, and I think we
want to continue that to be fair to everybody. Secondly, a
$60,000 -- $60,000 for improvements, I would admit that's a
lot of money, but the prior one was looking at something
like a million dollars, which really in my mind is very cost
prohibitive. Not to say $60,000 for you is not cost
prohibitive. But where do we draw the line? Where do we
draw the line? And that's where I'm trying to get to a
point where we stick to our rules that are existing, and we
use them. Maybe today we don't have all these problems.
When you got your building permit and you built a house or
you bought this property, and how long have you owned this
property may I ask?
MR. COLLINS: Three years.
MR. VICTORINO: Three years, okay. You bought it
three years ago. Were you aware of all these situations, or
did you buy it not understanding all of this?
MR. COLLINS: We were aware that there was a
pending decision by the Board, so we were provided with the
documents, the history of the request for a meter. And so
we, you know, because this -- this prior effort stays with
the lot or the lot owner, you know, the fact that it changes
ownership, you're really dealing with, you know, the current
property owner. And any decision that's made is tied to the
lot, not necessarily a benefit to that particular owner. In
other words, when it changes, you know, I don't need to
explain that anymore, but let me just say that there is a
very distinctive difference between the folks that came
before myself and what we are presenting. One, we are not
developers. We are not subdividers. We're not looking to
do this with a proper motive. Also, we have not done
anything that represents a mistake in the building permit
process. Everything that we've done is legal.
And if you need more, you know, it sounds like
some people are kind of going on the fence on this. And I
need to clarify what Ms. Parsons said and what the Director
said. We didn't gain this right to reserve a meter based
upon being on the -- our number coming up on the list. This
came out of the -- the upcountry water meter ruling that
occurred in October of 2002 I believe. And I can -- you
know, do you remember when Jacky gave her presentation May
22nd and she explained about the whole history of upcountry
water? I have a portion of her presentation to you.
And she says, so I quote, "Now the rule allows
this 60-day time for the purpose of allowing applicants with
a premises without water service that are not on the
priority list that have any preexisting rights to water or
have expended funds in reliance upon official government
assurances dated before the priority list dated November
2nd, 1994, to come in and pay for or reserve an allocation
of service capacity."
MR. VICTORINO: Okay.
MR. COLLINS: So this goes back into reliance.
When the subdivision was improved back in 1915, there was a
certain reliance that water service would be provided. We
are -- it's turned into a two-step process. We -- and, you
know, the first step is we've reserved the meter. And to
follow through with this reliance, there is -- it's
incumbent upon the Department to work with us to allow us to
utilize it. And so this is the -- we were told at the time
you either get the meter now, you have a 60-day period to
reserve the meter, or you go to the back of the list.
MR. VICTORINO: Right.
MR. COLLINS: So keeping this concept of reliance,
this is an old subdivision, 1915. We're just asking to
let's follow through on step two, and let's do it in a way
that's reasonable; that is, this remote meter won't be there
forever. This two-inch line is not going to last forever.
The Department has got to replace it at some point.
MR. VICTORINO: Okay. So all said and done, you
knowingly bought this property with all the challenges that
were forthcoming, right?
MR. COLLINS: We're happily living there right
now.
MR. VICTORINO: You're living in it right now. So
again, the bottom line in this to me is, again, with the
knowledge of what was occurring, you had knowingly bought
this thinking that may or may not happen, and that
improvements will come forth; when the improvements come
forth, then you can get your meter?
MR. COLLINS: Well --
MR. VICTORINO: Yes or no?
MR. COLLINS: Well, we have reserved a meter.
MR. VICTORINO: Yes, but with the improvements
either you're going to put in or whoever is going to put in.
George, maybe I'm getting ahead of myself.
MR. TENGAN: Mr. Collins is correct. As I recall
now, this -- they did apply for or put in his reservation
under the 60-day period within which people could apply for
meters. And I believe in doing those reservations no water
system improvements were placed on the reservation. Am I
correct?
Basically, I guess we communicated to Mr. Collins
that there would be certain requirements that they would
have to meet. Exactly what those requirements are, I don't
recall at this point in time, but he was -- we took his
reservation under the 60-day period rather than being on the
wait list. I just wanted to make that correction and
confirm what Mr. Collins said.
MR. VICTORINO: Okay. So using that as a premise,
Mr. Collins, did you understand what the requirements would
be to put in the water meter? When you -- they took your
reservations, right, and you did state, George, that using
your words again?
MR. TENGAN: I'm having senior moments, but I'm
recalling some of the things. Initially I guess when
Mr. Collins and I or when Mr. Collins approached us and he
was wondering whether to put in for his reservations or not,
we talked about the possibility of remote meters, and
correct me if I'm wrong.
MR. COLLINS: Well, there was also a period --
yeah, there was, you know, the Department said here is what
we would like for you to do, you know, put in this main line
improvement.
MR. VICTORINO: So it was told to you?
MR. COLLINS: Okay. But also keep in mind, you
know, that's just one isolated aspect. We went, you know,
we started off this process because those of you who have
been here for a while have known that over two years ago we
came in. We did that because it was progress. You know, in
other words, with our concept of reliance, there were, you
know, we've got 60 days to make this decision. We're making
some progress here because originally we went in and said we
want water service to this whole lot.
Then, you know, we get like half of it. You know,
we're making some progress here. We can reserve the thing
now, so let's do that and let's move forward with this
concept of reliance. And that's where the letter to David
Craddick where I point that out, yeah, there's still a
responsibility for these older lots, for these older
subdivisions to provide water.
MR. VICTORINO: Yeah, go ahead, Ginny.
MS. PARSONS: On Page 32, there's a receipt for
Mr. Collins' purchase, $6,030. It says accepted subject to
approval of reservation pursuant to Rule 16-8, funds will be
returned if reservation is not accepted. Now, we've defined
what reservation is. We've defined this in subsequent
meetings, and when the Commission was here, we determined
what reservation is. And reservation is basically a water
commitment because that's what we are doing with Wailuku
Country Estates. We've established that.
Now, he has a reservation. He's paid for it, his
reliance. And I think the terminology, the legal
terminology is detrimental reliance. Am I right, Mr. Kushi?
MR. KUSHI: I've heard it before.
MS. PARSONS: And when we do, when we look at
these cases, we have a responsibility personally as well as
a body and if we recognize the issues and we don't do
something about it, we become personally liable, so if
you're uncomfortable with not letting him proceed and you
need legal opinion on this, then I would say we recommend
that we need legal opinion on where Mr. Collins stands
before we make some type of decision that could put us all
in some kind of personal jeopardy.
MR. KUSHI: Mr. Chair, I need to respond to that.
That is not a correct statement. You are not personally
liable. You are a board. And anybody who has a
reservation, whether it's Mr. Collins or anybody, means once
you get a reservation, you're not entitled to a meter
installation unless you comply with the other rules and
regulations and requirements of the Department. A
reservation is a commitment, correct, but it's not a
guarantee of installation of meters. But you are not
personally liable for any recommendations you make to the
Department, so please don't feel constricted.
CHAIR HIRANAGA: Just to expand on what
corporation counsel just said, I believe that a reservation
allows you to reserve capacity. It does not mean that it is
the responsibility of the County to ensure the distribution
line fronting your property is adequate to accept another
meter. The purpose of reserving a meter is to allow you
time to bring the system up to adequacy so that your meter
can be installed. It's reserving of capacity. It's not --
that's what it is. It's a reservation of capacity. It's
not the order to install a meter. You're not paying for the
order to install a meter.
MS. PARSONS: Yes, you are. Yes, you are.
CHAIR HIRANAGA: That's my understanding. Also,
in the past, there have been other people who have come
before the Board for outside meters on Piiholo and Olinda
Road, so again, there is a danger if you agree to recommend
that Mr. Collins receive an outside meter, you will be
receiving additional requests I'm sure in the future from
these other people who have been denied.
This has been a longstanding problem. But also
prior to the charter amendment, the Board did grant offsite
meters to -- I remember at least one case to someone, an
offsite meter. That was by Board vote, but at that time, we
did have authority to do that. We don't have that authority
anymore. So it's never been an easy issue to contend with.
It was some geographical requirement that the Board for some
reason voted to grant this one applicant an offsite meter.
That was prior to the charter amendment.
MR. COLLINS: I would like to comment on those two
points. The later one, during the approval by the Board for
a remote meter, that occurred during the same time period
that we were contemplating paying for our reservation, so it
looked like to us that the Board was favorable and there was
evidence of that to approving a remote meter. And we just
felt like this was a very simple case; whereas, that one was
not that simple, you know, given that adjacent neighbors
have that.
The other point about the -- when you reserve a
meter, yes, you're correct, it -- that in itself, a meter
reservation does not make it incumbent upon the Department
to make the improvements. My point is that the reason why
we were given the opportunity to reserve a meter was based
on this concept of reliance on these old subdivisions and it
was where the Department was cleaning up the problem that
they had.
And that's why our argument is that there was a
reliance on that, and the wording, every time that the
Department would talk about reliance, they didn't say water
meters. And this is why I brought up that quote by Jacky.
She says rights to water, so this reliance is reliance for
rights to water. You have to be able to turn the tap to get
it.
CHAIR HIRANAGA: Yes, Dorothy.
MS. PYLE: Can I ask you, Mr. Collins, on this map
that you have, you have made in red the ones that are on
this remote system. How about the other ones, where do they
get the water from?
MR. COLLINS: This lot does not have a house on
it, but it's owned by these folks. It's too hilly to really
be buildable, so they own both. That's one of the old lots.
That's the original Alaluana house that dates back to the
Camerons. These properties are also owned by the Murdocks,
and it's in trust, so there's no nobody there.
MS. PYLE: But is there nobody in the Murdock
house?
MR. COLLINS: Yes, there is. That's this one.
This is it, so this one is unbuildable. This one is on
catchment actually. We're on catchment. But we, you know,
we're right on this line here. This property estate, it's a
little lot here that's actually -- it's rather complicated,
but it's attached to this lot, so in actuality, it's not a
separate TMK. All of this is State land, and it's these
lots down here that are utilizing the two-inch line.
So there's -- if we were -- if this line was
approved up to this point, there would be no property owners
interested in getting involved with that project because
it's either --
MS. PYLE: Unless, of course, the remote meters
were removed for all of them. And so I guess my point here
is to think about this from the point of view that you said
originally, perhaps I heard you wrong, that you believe that
that water line is about 30 years old or more.
MR. COLLINS: That's kind of a guess based on the
age of the homes.
MS. PYLE: So if it was about 30 years old, it
seems this was done in a time where the upper areas of
Piiholo Road were quite remote, and there probably were
reasons for it to be done the way it was done for that
period of time. But it's like saying that, you know, 30
years ago, we got a building permit to build a house, and we
built it according to the possible ways of building a house
on Maui 30 years ago, which probably have changed
considerably to the present time. And probably at this
point, if we were to ask for a building permit to build our
house the way we built it 30 years ago, we probably wouldn't
get one because the standards change, and the way things are
constructed and the reasons why things are done change over
time and they improve.
And my guess here, my view is that to continue to
add more remote meters to an area that is really not up to
standard isn't the best service for anybody, even the other
people that are on this line. And I think that we need to
think about it from that point of view, too. If we add you
and your necessities, what's going to necessarily happen to
the other folks on that line as well? And we haven't heard
from them.
MR. COLLINS: Let me just remind you that we are
already built. It's not new development.
MS. PYLE: And you have water.
MR. COLLINS: And we have water, and what we would
like to do with the additional water is make full use of the
fact that it's an agricultural lot and be able to put in an
orchard and grow things.
CHAIR HIRANAGA: Ginny.
MS. PARSONS: Just a clarification, Mr. Director.
When we have a payment for a meter for a reservation, what
do the funds go for, can you give me the breakdown?
MR. TENGAN: Well, the reservation is just a
deposit. If we're talking about the water system
development fee, the breakdown is for a five-eighths inch
meter, $2,040 with source.
MS. PARSONS: I couldn't understand that. What
was that?
MR. TENGAN: For a five-eighths inch meter.
MS. PARSONS: So part of this money does go for
the meter itself, the tangible meter?
MS. PARSONS: Not as a deposit. Only when it's
converted as payment is for the water system development
fee.
MS. PARSONS: How much is that?
MR. TENGAN: It goes into a CIP fund.
MS. PARSONS: So how do you come up with $6,030?
MR. TENGAN: Well, there's other elements to this.
Transmission is $2,850, and storage is $1,140.
MS. PARSONS: So part of this is for the meter?
MR. TENGAN: What's the question?
MS. PARSONS: Part of this is for the meter then,
$2,000-something is?
MR. TENGAN: No, it has nothing to do with the
meter. It's to get the water up to the property.
MS. PARSONS: But you said for a meter. It was
the first thing you said.
MR. TENGAN: Well, the payment is based on the
size of the meter. It's not for the meter.
MS. PARSONS: Okay. So they pay additional for
the meter?
MR. TENGAN: Yes.
MS. PARSONS: So in addition to the $6,000, how
much more does he pay for the meter?
MR. TENGAN: He would have to pay for the
installation cost of the meter.
MS. PARSONS: Okay, thank you.
MS. RAISBECK: Mr. Chairman.
MR. HIRANAGA: Yes.
MS. RAISBECK: I have a question based on
something you said, which is that the Board did approve a
remote meter as recently as I presume last November --
October November, December. Within the 60 days that he was
applying, the Board approved --
CHAIR HIRANAGA: A year, the past year, prior to
the charter changes.
MS. RAISBECK: He received his meter on November
13th, and that was the 60-day rule.
CHAIR HIRANAGA: Year 2002.
MS. RAISBECK: Yeah, 2002. So it isn't true that
no remote meters have been approved by the Board in the last
five years because one was approved by the Board last
November, true?
CHAIR HIRANAGA: Most requests for remote meters
have been denied.
MS. RAISBECK: Who was approved, who was the
applicant for that meter?
CHAIR HIRANAGA: I believe his name was Judge.
MS. RAISBECK: Judge?
CHAIR HIRANAGA: In Kula, Omaopio.
MS. RAISBECK: My reason for inquiring is that
when we're asked for waivers about things, I want to be
crystal clear that any decisions are based on criteria that
are applied equally to everybody. So for me, I will need to
see the, you know, the rationale for giving that remote
meter before I would want to refuse this remote meter.
Thank you.
CHAIR HIRANAGA: I have a question, Mr. Collins.
So you're currently utilizing rain catchment?
MR. COLLINS: That's correct.
CHAIR HIRANAGA: And you say it's not meeting your
desired needs, that you want to expand the use of your
property?
MR. COLLINS: That's correct.
CHAIR HIRANAGA: And you can't enlarge your
catchment system?
MR. COLLINS: It's so large now that we've never
had to have water trucked. But given the size of our home
and the amount of roof catchment there is, it's at a level
where we have -- like last year, it didn't top up, you know,
during the rainy period. The first year it overflowed, but
the second year it didn't, so I don't know if that answers
your question. What we would really need to do to upgrade
would be to build more roof to provide more catchment
capacity.
CHAIR HIRANAGA: Do you have a second dwelling on
this property?
MR. COLLINS: No.
CHAIR HIRANAGA: Question for the Department. If
someone is on a catchment system, is there a fixture count
criteria that comes into play when you're looking at
building permits as far as fire flow or -- I know when
you're a County meter, there's a fixture count requirement
or limit. Is there a fixture count limit on a catchment
system?
MR. TENGAN: I don't think we review the plans of
private water systems.
CHAIR HIRANAGA: Are there anymore questions for
the applicant? If not, I open the floor to a motion.
MR. OKAMURA: Mr. Chairman, I move that we defer
this matter, this item until we can get more information as
far as what Sally wanted, the reason for the previous
exemption and then --
CHAIR HIRANAGA: Requesting copies of the minutes?
MR. OKAMURA: Or just a synopsis or a summary why
that that one was given and the impacts it would have if we
approved this.
CHAIR HIRANAGA: I think whether than rely on the
interpretation of the Department, probably you could request
the minutes so you could hear exactly what was presented,
what was argued and what was decided.
MS. HOWARD: Mr. Chair, I recall that the one time
that the -- the one time that you did while I was Board
Secretary that you agreed for a remote meter was a private
road issue where the property was down a private road, so it
had to do with that part of the rule. So they would not be
reading the meters on a private road or be accessing those
meters down that private road.
CHAIR HIRANAGA: That's not my recollection.
MS. HOWARD: No? I can get to the minutes on
that.
MR. VICTORINO: I remember something like that,
but I don't remember specifics.
CHAIR HIRANAGA: So there's a motion to defer. Is
there a second?
MS. RAISBECK: Second.
CHAIR HIRANAGA: Any discussion?
MR. HASHIMOTO: What was that information?
MR. OKAMURA: One was what Sally was requesting
was the reason for the previous approval, exception, and
also I know the Director was concerned about the impacts it
would have on previous denials and future requests or, you
know, denial that you would have to honor, possibly honor,
or what problems it would present anyway in regards to past
denials.
CHAIR HIRANAGA: It sets a precedence. Are you
requesting copies of the minutes from that particular --
MR. OKAMURA: Yeah, the minutes from the approval
for the waiver, when the waiver was approved.
CHAIR HIRANAGA: Meaning the decision to grant the
outside meter, you want the copies of the minutes?
MR. OKAMURA: Yes.
CHAIR HIRANAGA: Call for the vote. All in favor
of the motion, please so indicate by saying aye.
(A chorus of ayes.)
CHAIR HIRANAGA: I guess we'll have to have a hand
count. Okay. Dorothy, Stacy, Ginny, Clark, Sally and
Kenneth in favor.
All opposed? Mike Victorino in opposition. So
this matter is deferred.
MR. COLLINS: Thank you for your time.
MS. RAISBECK: Mr. Chair, might we have a short
recess?
CHAIR HIRANAGA: Yes, reconvene at 11:15.
(Recess taken.)
CHAIR HIRANAGA: I would like to call the meeting
back to order. The next agenda item is update on water rate
increase review.
MR. TENGAN: Mr. Chair, I just have a short
report. The consultant committee has met and made its
recommendation to engage the services of R.W. Beck out of
Seattle, Washington. R.W. Beck is a rate consultant firm
and management consultant firm that's involved in the State
of Hawai`i. They're presently engaged in or have done
studies for the City and County of Honolulu Board of Water
Supply, Kauai County Department of Water and Hawai`i County
Department of Water Supply, so they're very familiar with
all issues that are within the State.
And we're presently working with the scope of
services, and we will be discussing the fees. We will have
that sometime in the near future, and I will report back to
the Board.
CHAIR HIRANAGA: Any questions for the Director?
MS. RAISBECK: Yeah, Mr. Director, will you be
providing the consultants with say how long a CIP plan that
needs to be funded, will you be providing them with that?
MR. TENGAN: That will be part of our discussions
where we will be discussing long-range financial plan, which
would include a CIP also.
MS. RAISBECK: And the long-range financial plan
will be based on a long-range water use and development
plan?
MR. TENGAN: I don't know if we can go that far
into the future. Because to go more than four or five years
as far as your financial plan is concerned, you're really
guessing as to what the growth is, what the demand will be.
So I would rather have the consultants spend their time and
energy on our immediate needs and project the future as
close as they can without putting too much effort into that.
MS. RAISBECK: Mr. Chair, I would recommend that
the Department realize that any proposed rate increase will
have to be passed by the Council, so it behooves us to try
to sound out what needs the Council will have in order to
approve any changes in rate structure. Thank you.
MR. TENGAN: Mr. Chair, we do have to bring the
consultants in to discuss with the Board the strategies in
approaching the rate study to take into consideration the
concerns of the Board, the Mayor and possibly the Council
also at that time.
CHAIR HIRANAGA: Thank you. Any further
questions? Thank you. The next agenda item is the update
on the Sunshine Law opinion by corporation counsel.
MR. KUSHI: Yes, Mr. Chair, Members of the Board,
as you recall, we had this discussion about the Sunshine Law
and the issue about E-mails. I referenced -- you should
have in your documents several correspondence to summarize
my letter to the Board dated August 28th, '03, which I tried
to set forth the issues that was brought forth, and that
letter basically said that I would then draft a letter to
the Office of Information Practices State of Hawai`i for a
formal opinion.
Subsequent to that, just by chance, we had
occasion to have a conference with all the other County
corporation counsels, Big Island, Maui, Kauai and Oahu. And
through meetings with our colleagues, we did discover -- and
there was a conference topic on the Sunshine Law, and we did
discover several letter opinions issued by the Office of
Information Practices, I'll call it OIP, which we felt after
reviewing kind of addresses the issues and questions quite
on point. That being the case, I did secure copies of the
letter opinions from OIP. You have before you my October
20th, '03, transmittal to the Chair and the Board, which I
attached a copy of the letter opinion from OIP dated
September 11th, '03, to Romy Cachola of the City and County
of Honolulu councilmember. In that letter opinion, which is
quite exhaustive, eight pages, it addresses various issues,
but the main one is found on Page 2, which is entitled
Electric Communications and Telephone Conference Calls. I
won't repeat what the letter opinion basically says, but it
confirmed our initial position that E-mail communications
amongst board members are prohibitive and should not be --
will be violations of the Sunshine Law.
In that September 11th, '03, letter opinion, it
did make a reference to another letter opinion dated
September 2nd, '03. I got a copy of that subsequently and
my last correspondence to you, Mr. Chair and the Board dated
October 22nd, I did attach a copy of the September, 11th,
September 2nd, '03, opinion from the OIP to the same
councilmember Cachola. I believe this letter opinion is
more specific. It addresses various questions we had
wrestled with.
Specifically that September 2nd, '03, letter
opinion responded to questions as follows. May a member of
a board send an E-mail to all other members of a board on a
matter of official business before the Board? I won't read
the response, but to summarize, they say no. Secondly, may
two members of a board communicate by E-mail between only
themselves on a matter of official business before the
Board? Summarized or the response, OIP says, yes, they may
E-mail between two members themselves. They did reference
the Attorney General's opinion or interpretation saying the
Attorney General's office would say no. However, OIP says,
opines that that would be allowed; however, in their
response, OIP basically says, and I quote, "We note that
even under our interpretation of the statute, boards cannot
communication serially."
I believe when they say serially, and they say, in
other words, one board member cannot separately E-mail the
same message to other board members and similarly down the
line. The next question they respond to is may two or more
or less than a quorum of members of a board communicate by
E-mails amongst themselves on a matter before official
business before the Board? Again, they respond no.
Lastly, they respond to a question may members of
a board numbering more than a quorum communicate by E-mail
among themselves on a matter of official business before the
Board? Again, this seems repetitive, but they respond in
the negative. Again, I preface -- I note and I preface the
comments on behalf of OIP is that they respond to issues
about communications regarding official business of the
Board. Likewise, if it's not official business, they know
it's not a matter of the Sunshine Law.
With that, Mr. Chair, I will try to entertain any
of the questions, but we believe that based on these letters
and that issuance from the OIP, which office administers the
Sunshine Law, the matter has been concluded, and this issue
should be filed.
CHAIR HIRANAGA: Questions for corporation
counsel? Yes, Sally.
MS. RAISBECK: As I remember, when this matter was
deferred for you to communicate with the OIP, the
understanding was that the letter that you had provided to
us, I believe it was August 28th, that I would have the
opportunity to add questions to that and that that -- the
joint letter would be cleared with Kent and sent to OIP. Is
that your understanding of what the last time we dealt with
this project was?
MR. KUSHI: Mr. Chair, Member Raisbeck, that is
correct, and I recall meeting with you and I recall
accepting some documents from you; however, subsequently
based on our discussions with OIP and our fellow colleagues
from the other jurisdictions, I felt that these opinion
letters issued by OIP addresses the matter. If you feel
that it doesn't, please steer me in the right direction. I
will need to discuss this w