BOARD OF WATER SUPPLY
COUNTY OF MAUI
REGULAR BOARD MEETING
THURSDAY, AUGUST 25, 2005
Thursday, August 25, 2005
9:08 a.m.
Kalana O Maui Building
200 South High Street, Seventh Floor
Wailuku, Maui, Hawaii
Reported by: Darcy J. Brokaw, RPR, CRR
APPEARANCES
Chairperson: MICHAEL VICTORINO
Vice-Chairman: KENNETH OKAMURA
Board Members: STACY HELM CRIVELLO
GINNY PARSONS
SALLY RAISBECK
RALPH JOHANSEN
GREGORY SMITH
KENT HIRANAGA
Corp Counsel: EDWARD KUSHI, JR.
Director: GEORGE TENGAN
Engineering Program Manager: ALVA NAKAMURA
District Engineer: HERB CHANG
Administrative Officer: JACKY TAKAKURA
Board Secretary: CATHY HOWARD
PUBLIC TESTIMONY:
David Dantes, M.D.
Guy Gilliland
Captain Val Martin, Fire Prevention
(Thursday, August 25, 2005, 9:08 a.m.)
* * * * *
CHAIRMAN VICTORINO: I'd like to call this meeting
to order of the Board of Water Supply, County of Maui, for our
August 25th, 2005 meeting.
Members present today: Greg Smith, Sally
Raisbeck, Kent Hiranaga, Stacy Crivello, Ginny Parsons, also
Vice-Chair Kenneth Okamura, and Chair Mike Victorino. Thank
you very much for being here.
First order of business, announcements. Do we
have any announcements that you would like to bring up,
members?
I do have one, and I'd like to bring this matter
up. I'm in possession -- and some of you may have heard -- of
a letter of resignation that was addressed to the mayor and
sent to me a copy from Michelle McLean. I'd like to read the
letter for the record. It is addressed to the mayor, but you
know, she did send it to me and said please read it.
It says: "Dear Mayor Arakawa: Please accept my
letter of resignation from the Board of Water Supply effective
immediately. I have recently taken a new position with the
Kahoolawe Land Reserve Commission, and my professional
obligations precludes me from fully preparing for and
participating in the board meetings and other events."
"It is with regret I feel compelled to resign from
the board, though I know the board will benefit from having a
complete and full engagement of its members. I truly
appreciate having been appointed to the board and I'm honored
to have served the past 15 months."
"Should you have any questions, please do not
hesitate to contact me. Sincerely, Michelle McLean."
A little note at the bottom: "P.S., Aloha, Mike.
It's been fun and enjoyable."
So I want that put in the record. And hopefully,
we'll have a new member appointed soon to the board.
Any other announcements? If not, I will go
through the approval of the minutes from the July 28, 2005
regular meeting. I do have one correction that was given to
me.
On page 2, line 16, showing Greg Smith as excused
when he was actually present at the meeting. So please note
that correction.
Are there any other corrections, additions or
deletions to the July 28th meeting?
BOARDMEMBER RAISBECK: Yes, Mr. Chair.
CHAIRMAN VICTORINO: Ms. Raisbeck.
BOARDMEMBER RAISBECK: I'm not sure this is turned
on. Oh, there it is.
CHAIRMAN VICTORINO: It's just the recording
system, so it's working.
BOARDMEMBER RAISBECK: It's working?
CHAIRMAN VICTORINO: Yes.
BOARDMEMBER RAISBECK: Okay. On page -- I was not
present at the meeting, but I did read the minutes carefully.
And on page 27, line 13, the word should be "flashy," not
"fleshy"; "flashy" as describing streams that are very full,
sometimes than not. So it should be flashy.
And there was another thing in that same sentence
that I didn't understand, but I can't correct because I don't
know what was actually said.
On page 33, line 15, minor point, it's listed as
"Driscoll" with two Ls. I believe the technical term is
"Drisco," D-r-i-s-c-o, which is a brand name.
On page 33, line 17, "What Up." "What Up,"
capitalized, should be Water Use and Development Plan,
W-U-D-P, which is -- people have taken to referring as "WUDP."
And page 39, line 16, where it says Wailuku
Agriculture, the "A" should be capitalized to make it clear
that what is being referred to is the company, Wailuku -- oh,
"Agribusiness," I guess it is. I believe it's referring to
Wailuku Agribusiness, and there should be a capital "A."
That's all, Mr. Chairman.
CHAIRMAN VICTORINO: Thank you very much,
Ms. Raisbeck.
Anything else, board members?
Okay. Move that the minutes be approved with the
corrections?
BOARDMEMBER RAISBECK: So moved.
BOARDMEMBER CRIVELLO: Seconded.
CHAIRMAN VICTORINO: All those in favor, say aye.
(Ayes.)
CHAIRMAN VICTORINO: Opposed?
Okay. Now we will open up for testimony from the
public. I think we have two people here present, and I would
like to start with Mr. Dantes first. Mr. Gilliland, you will
be right after that, because your matter has a lot more
substance to it.
So at this time, I'd like to call upon Mr. David
Dantes, and he'd like to speak on item 9A, which is the
presentation part of Fire Department and the Department of
Water on water protection standards.
Mr. Dantes, please go ahead.
MR. DANTES: Well, thank you everybody, and
members, for the opportunity of giving testimony.
I'm here as a president of the Maui Vacation
Rental Association. And I'd like to give you some input about
difficulties caused to our members and indirectly to the
Planning Commission and the Council and to the Fire Prevention
Bureau by certain inconsistency in fire protection standards
between the Fire Department and the Water Supply Department.
Specifically in our case, this inconsistency is
that there is an unwritten policy in the Water Department to
treat bed and breakfasts and vacation rentals as commercial.
For those of us who are in ag and rural areas
where we don't have 1,500 gallons per minute, this imposes a
requirement, unrealistic requirement for infrastructure
upgrades.
In the vast majority of cases, our members are not
applying for any new construction. They already live in fully
compliant and approved dwellings, and they're simply asking to
get a permit to use portions of these dwellings for short-term
rental.
Although we believe we should be taxed as
businesses, we are not businesses in the sense of a hotel
which is open to the public. Obviously, a member of the
public cannot just drive up to our vacation homes and walk in
and read a newspaper in the front room or use the restroom if
they feel like it. People are only invited onto private
property by invitation or by reservation. So we don't have
the same type of activity as a business that's open to the
public.
In fact, the activities that take place in our
homes are residential. People live in them, just as people in
an ordinary household live in a dwelling or people who are a
long-term tenant live in a dwelling. And there are no
business activities that take place on the premises other than
collection of rent.
In short, we don't feel that the use of bedrooms
in our homes and cottages constitute an increased fire hazard.
And we would strongly urge that approval of the Fire
Prevention Bureau standards, which are the National Fire
Protection Agency Code, be applicable to our operations rather
than imposing commercial infrastructure requirements on us.
And lastly, I should mention that an unwritten
policy to classify our operations as commercial really is
against the intention of the state legislature, which requires
an agency to have a formally-adopted rule. Not that I want
you to go now and formally adopt a rule calling us commercial,
but please don't have an unwritten policy that requires these
infrastructure upgrades.
Thank you.
CHAIRMAN VICTORINO: Do the board members have
questions for Mr. Dantes?
Mr. Okamura?
VICE-CHAIRMAN OKAMURA: Mr. Dantes, I have a
couple questions.
MR. DANTES: Yes, sir.
VICE-CHAIRMAN OKAMURA: You run into problems with
fire protection when you need to get a permit to operate? Is
IWADO COURT REPORTERS (808)244-9300
that when you have problems?
MR. DANTES: Yes.
VICE-CHAIRMAN OKAMURA: And you have to go and see
both the Fire Department and Department of Water Supply?
MR. DANTES: Actually, there's 17 agencies to
which our applications are circulated, and they all have
comments, and many of them perform inspections, and some
impose requirements; but the most burdensome are those of the
Water Supply Department.
VICE-CHAIRMAN OKAMURA: And do you also have to go
to the Fire Department?
MR. DANTES: Yes, sir.
VICE-CHAIRMAN OKAMURA: And because you're treated
as commercial, do they require like a more -- I guess more
pressure and volume in terms of fire protection?
MR. DANTES: Yes. And in rural and ag areas, they
require a level which doesn't exist by the existing water
supply system; so it's really not possible to comply without
extremely costly upgrades to the water supply delivery system.
VICE-CHAIRMAN OKAMURA: So basically, then, out of
let's say all the -- so it's hard to get a license to operate
as a -- to operate as a bed and breakfast or whatever?
MR. DANTES: It's almost impossible. But even
those who have succeeded are in violation of the Department of
Water Supply standards if they're outside of an urban
district, and they could be subject to penalties or having
their permit revoked.
VICE-CHAIRMAN OKAMURA: Okay, thank you.
CHAIRMAN VICTORINO: Ms. Parsons?
BOARDMEMBER PARSONS: Is this vacation rental as
well as bed and breakfast, or --
MR. DANTES: Yes.
BOARDMEMBER PARSONS: So it doesn't matter whether
it's one room or ten rooms; it's still the same -- it's still
taking the same -- we're taking the same stand; is that what
you're saying?
MR. DANTES: Yes. But the maximum permissible
number of rooms, whether it's bed and breakfast or vacation
rental, is six. And probably the average number of rooms
among our whole membership is two.
BOARDMEMBER PARSONS: And these are mostly local
folks that are just adding, for extra income, their --
MR. DANTES: Yes, they're mostly people that
either live in the same dwelling or on the same parcel as the
guests, but there are exceptions. There are properties that
have nonresident owners that are managed by realtors on the
island. Those are the exceptions, but they also exist.
BOARDMEMBER PARSONS: But there is somebody that
looks over them.
If we were to be able to work something out with
the standard, in your opinion do you think it would
legalize -- we would be promoting more legalization rather
than people doing it under, you know, behind the door, back
door?
MR. DANTES: It would certainly be a big step in
that direction, because the infrastructure requirements are a
tremendous impediment to people coming forward and identifying
themselves.
BOARDMEMBER PARSONS: Okay. Thank you.
CHAIRMAN VICTORINO: Ms. Raisbeck?
BOARDMEMBER RAISBECK: If the County were to -- or
the Department of Water Supply had a written policy regarding
bed and breakfast and vacation rentals, are there any
safeguards that would prevent the usage of water from
increasing greatly, say for each -- for a property that's used
for those purposes, can you suggest any modification of the
policy that would contribute to not -- especially upcountry,
where probably most of the rural and ag properties are, we
already have a water shortage up there. So how could we frame
it so that it didn't allow great increases in water usage?
MR. DANTES: Just off the top of my head, I would
say that if you had some kind of range of appropriate water
use for households with different numbers of occupants, I
would expect that would be reasonable -- whether the occupants
rented for six months or six days -- in terms of the overall
water consumption.
And of course, people are limited to the number of
flow units by the size of their meter. I don't know if that's
of any help or not.
BOARDMEMBER RAISBECK: Okay.
CHAIRMAN VICTORINO: Let me make sure that
everybody's had a chance before I go back to -- is there
anyone else that hasn't asked a question of Mr. Dantes?
Okay. Then Ms. Parsons.
BOARDMEMBER PARSONS: Just a quick question. If
we were able to put together an average amount, and if you go
above that average amount, like on your phone, your cell
minutes, would the association be apposed to a rate increase
on that additional portion?
MR. DANTES: I'd have to take that question to our
board, but it sounds to me like it's a reasonable proposition.
CHAIRMAN VICTORINO: Okay. Thank you, Mr. Dantes.
And let me also recognize Mr. Ralph Johansen,
member, is now present. My apologies; I did not see him come
in.
Ralph, do you have a question?
BOARDMEMBER JOHANSEN: Well, without knowing any
more about it, the first question I have is: How do you
differentiate -- what's the history of differentiating hotels
from bed and breakfast? What conditions do they share and
what conditions make them different, so that a different
policy could be recommended?
MR. DANTES: Well, the Maui County Code Housing
Section defines a hotel as a building that has at least ten
rooms that are devoted to transient rental. Our operations
range from one to six rooms.
The other thing is that a hotel has a much more
intensive use of land and improvements than we do. Our
operations basically are homes, mostly occupied by the
families that own them, and also partly rented to guests.
Hotels generally have dozens or hundreds of rooms;
they're food service establishments; and they have liquor
licenses, live entertainment, activity centers, paid parking.
It's really a full-on commercial kind of enterprise.
Larger hotels, I believe generate more revenue in
a single hour than our average member does in a year.
BOARDMEMBER JOHANSEN: There's a line between a
small hotel, Mr. Dantes, and a bed and breakfast. I just
wonder in terms of risk to the County, expense to the County,
and the expense of infrastructure for a bed and breakfast,
what differences there are.
MR. DANTES: Well, again, the bed and breakfasts
and vacation rentals are making use of single-family dwellings
which have already been inspected and have already been deemed
safe and inhabitable for the occupants.
And where there's no new construction requested
for the permit, I think they're still safe for inhabitation by
the occupants, whether or not the occupants are long-term or
short-term tenants.
BOARDMEMBER JOHANSEN: May we hear from the
Department?
CHAIRMAN VICTORINO: Before I ask the Department,
are there any other questions for Mr. Dantes?
BOARDMEMBER RAISBECK: Just one question.
What's the name of your organization that you
represent?
MR. DANTES: Maui Vacation Rental Association,
which is commonly abbreviated MVRA.
BOARDMEMBER RAISBECK: And how many members are
there?
MR. DANTES: Around 150.
BOARDMEMBER RAISBECK: Thank you.
BOARDMEMBER PARSONS: Mr. Dantes, one more
question.
CHAIRMAN VICTORINO: Yes.
BOARDMEMBER PARSONS: Mr. Dantes -- and this kind
of goes back to what you were talking about, Ralph, too.
I heard a figure that was batted around the other
day, and I realize how it got exaggerated, but they were
trying to say that there were over 20,000 vacation rentals on
the island of Maui because when you would surf on the Internet
"Maui vacation and rental," you came up with 20,000 hits.
MR. DANTES: That's true, you get 20,000 hits.
There's probably under a thousand single-family
dwellings used for short-term rental, both bed and breakfast
and vacation rental. And we're trying to get a more accurate
figure on that, but I would say under a thousand.
The rest of those numbers are either duplicates or
they're condos or time-shares, which is not the subject that
I'm discussing.
BOARDMEMBER PARSONS: 20,000 hits means anything
that has the word "Maui" in it, anything that has the word
"rental" in it, anything that has "vacation" in it, not
necessarily --
MR. DANTES: Yes. There may be more than 5,000
condos and time-shares, but there's under a thousand
single-family dwellings.
And I forgot to mention in answer to the
gentleman's question about the County, about liability, that
one of the standard conditions on our permits is that we have
a liability policy of a million dollars that indemnifies and
holds harmless the County if anything happens to a guest on
our property, and that the standards that I'm requesting are
National Fire Protection Agency standards, which I think would
really be defensible.
BOARDMEMBER JOHANSEN: Mr. Chair, just one more
question.
CHAIRMAN VICTORINO: Yes, Mr. Johansen.
BOARDMEMBER JOHANSEN: There's no limitation by
statute or ordinance to the size of a bed and breakfast?
MR. DANTES: Well, the most number of guest rooms
it can have is six, and the most number of adult guests per
room is two.
BOARDMEMBER JOHANSEN: I didn't get that. Thank
you.
MR. DANTES: I'm sorry.
CHAIRMAN VICTORINO: Okay. Anything else?
This is not something we can take action today on,
and I'm not sure if the Department is equipped to respond to
Mr. Dantes' comments and requests. And I will leave it up to
the director if he would like to put this as an agenda item in
the future at our next meeting, that he can be better
prepared.
Mr. Director, Mr. Tengan, what would be your
pleasure, sir?
DIRECTOR TENGAN: Mr. Chair, I would agree with
you that these items would be placed on the agenda before the
Department gets involved in the discussion. We need to place
this on the agenda so that staff can be prepared to respond to
the issues presented.
And maybe during the discussion on the item,
presentations by the Fire Department and the Department of the
Water Supply on fire protection standards, you know, some
questions of the board might be answered.
I might offer a comment. It's not an issue here
of, you know, that these bed and breakfast operations are not
increasing the fire hazards, but they are increasing the need
for fire protection when these operations house guests on
their premises.
CHAIRMAN VICTORINO: And if you look under "Other
Business," we do have a presentation coming forward from the
Fire Department.
So Mr. Dantes, we'll bring this up at our next
meeting as an agenda item. We will have some discussion
later, as you notice under "Other Business," and hopefully we
can look at this matter and start trying to find some resolve
for you folks, something that's equitable.
But I agree when it comes to protecting the
public, whether you're bed and breakfast, whether you're
long-term rental, whether you're hotel or condo, the public's
protection is paramount. A million-dollar liability doesn't
do enough if somebody's hurt or killed in a fire. And just
take that as my belief that the public's safety is so
paramount in this area.
MR. DANTES: Agreed.
CHAIRMAN VICTORINO: Okay. Thank you, Mr. Dantes.
MR. DANTES: Thanks, everybody.
BOARDMEMBER PARSONS: Thank you.
BOARDMEMBER RAISBECK: Thank you.
CHAIRMAN VICTORINO: The other testifier is
actually -- and I'm going to move on, if it's all right with
the board, to item number VI. That was item number V.
So number VI falls right after that, under
"Communications." Communication 05-05, a letter from Guy
Gilliland to the Mayor Arakawa, dated July 28th, 2005,
forwarded to the board on July 29, 2005.
You'll find that in your packet, pages 4 to 26. I
think Mr. Guy Gilliland is here.
Guy, would you like to come up and give your
testimony and we can proceed from there. If you'd introduce
yourself.
(Discussion off the record.)
MR. GILLILAND: Thank you, Chair Victorino and
members for having me here this morning.
I laid out my case in the communication that has
been presented to you in your packet. I'm here to answer any
questions you may have as the members see fit.
I just wanted to highlight, if I could, basically
the essence of what we're pursuing. We believe if you look at
the circumstances of our family situation, the unique
circumstances, should I say, that there is an opportunity for
discretionary approval for us to get consideration to get an
opportunity to have a meter on our property up in Haiku or
Makawao.
The basis for that request is primarily that we
completed our subdivision application at the time they were
formulating the priority list ordinances, and the departmental
procedures I think precluded us from receiving a certified
notice to register on the priority list. That's the essence
of our position: The timing of our completion of our
subdivision in April of '93 and the implementation and
formalization by the Department of notices precluded us from
receiving a notice. I'm not clear why.
We attempted to work with Herb Chang, who I must
offer has been very cordial and very helpful, and I appreciate
the effort he's given so far. But we couldn't get a clear
determination of the circumstances that occurred there.
That's our primary position.
The second point is basically that we're now in
sort of an unviable situation where there's a meter on our
property, on parcel 166, which is in my name, and it's
reflected and concluded that it's shared by multiple TMKs.
And so we're in this bind, if you will, where
we're being asked to have the other parties release their
interest, their shared interest, if you will, in the meter.
And it's a challenge I'll just offer to you when you go forth
to a party. And at this point, we haven't been able to
achieve that.
So it puts us in sort of an unviable situation to
utilize this meter for purposes of getting a building permit,
which is what we're trying to pursue.
I did read the Director's comments and I
understand where he's coming from, but I don't know if in his
response he spoke directly to the issue of a notice and the
potential defects in us not getting a certified notice at the
time that the Department was administering the development of
the priority list.
CHAIRMAN VICTORINO: Mr. Gilliland, just one
moment.
MR. GILLILAND: Sure.
CHAIRMAN VICTORINO: Would everybody please turn
off their cell phones before we go any further. I mean, I
think that's such a distraction. If you don't have it on
vibrate, please turn it off.
Thank you, Mr. Gilliland. I didn't mean to
interrupt. And you need to speak up, because she's having a
difficult time hearing you.
MR. GILLILAND: And respectfully, I understand
it's a challenging area that the Department is working
through, but I believe that the unique circumstances in our
case will not set a precedent, and would offer an opportunity
for the board to recommend to the mayor, or whoever has the
proper authority, to approve our request.
I'm available for any questions or any other
information that you may have.
CHAIRMAN VICTORINO: Okay. I will open the floor
to questions for Mr. Gilliland from the members.
Mr. Okamura?
VICE-CHAIRMAN OKAMURA: How did the situation
arise whereby three properties are -- one meter is being
shared by three properties?
MR. GILLILAND: The history is -- I'll take you
back.
It's a family-held property that was held by my
father, his brother, one large 36-acre piece, and his cousin,
the mauka property, another 36-acre piece, all of which had a
pasture lease demising the three TMKs.
The meter served the pasture's purposes. And the
application for the water permits historically reflected that,
as well as the various correspondences through the years, all
the way from 72 communications to tenants. And the various
tenants have reflected this multi-TMK use of the meter for
purposes of a pasture tenancy. So that's --
VICE-CHAIRMAN OKAMURA: So generally, the gist is
that also somebody went to get it subdivided, wanted to get it
subdivided?
MR. GILLILAND: Correct.
VICE-CHAIRMAN OKAMURA: And you agreed at that
time that you wouldn't be asking for any more meters?
MR. GILLILAND: No, I don't think there was any
understanding like that considered, addressed, or dealt with
in the process of the subdivision.
VICE-CHAIRMAN OKAMURA: That's what I thought I
read.
MR. GILLILAND: Either on the family members' side
or in the administrative review.
VICE-CHAIRMAN OKAMURA: Okay. So you're saying
that when you went for a subdivision of the property, the two
36-acre parcels, you did not make any agreements about not
going in for any more water meters?
MR. GILLILAND: No. Nothing was addressed either
at the personal level, the family level, and as well as it
being raised in the course of the review, the administrative
review.
VICE-CHAIRMAN OKAMURA: I thought that was part of
it, but maybe the Director can address that.
The other issue is that you had nine years from
the time the subdivision was approved until now to ask for a
water meter, and you would have gotten a water meter, but you
didn't do that.
MR. GILLILAND: That's correct.
VICE-CHAIRMAN OKAMURA: Why was that?
MR. GILLILAND: Well, we weren't in a position to
pursue a building on the property, a straight answer on that.
VICE-CHAIRMAN OKAMURA: Okay. So it's not logical
to me where you're looking back now and saying, okay, we
didn't get it; so that's a technicality, because in the
meantime, you didn't want to -- you didn't request a meter.
If at any time after that you had requested it, you would have
gotten it.
MR. GILLILAND: I would add -- I'm not disputing
that line of thinking. But I would add that the adjacent
parcel -- and I should clarify it to the board, that the
36-acre piece that was held by my father Mervin and his
brother Leroy Gilliland, they both pursued -- they built the
property in two 18-acre pieces. They subsequently -- this was
in '83, the first breakdown occurred.
In '93, they both subsequently at the same time
pursued a three-lot family subdivision for their two separate
properties. Leroy Gilliland got certified notice to get on
the priority list; Mervin Gilliland didn't.
So it was back to another compounding factor, and
from our perspective, as to being not served proper notice
just to get on the priority list.
Mr. Okamura, I think we would -- if we were on the
priority list, we would have at least had a better standing at
the point in time through the nine-year horizon to have a
better standing in getting a permit.
CHAIRMAN VICTORINO: Okay. Ms. Parsons?
BOARDMEMBER PARSONS: Can you make a clarification
for me, Mr. Gilliland? You do have a meter on your property,
right?
MR. GILLILAND: Correct, on parcel 166.
BOARDMEMBER PARSONS: And it's the adjacent
property for Lowry that doesn't have the meter?
MR. GILLILAND: Correct.
BOARDMEMBER PARSONS: Is that correct?
MR. GILLILAND: Yes, there's no meter on parcel
85.
BOARDMEMBER PARSONS: See, what I think, just to
kind of make a clarification here, in the old days, they had
these what they called two 16s where they allowed one meter on
a property to be able to feed like cattle and stuff on
another. It was like a shared meter.
So technically, it seems to me that Mr. Lowry
should have been the one applying for a meter. And what we
were doing sometime ago when we first did this, the list, we
put the list together, we were trying to eliminate a lot of
these shared issues.
And so we were having people put their names on
the priority list, and as water became available, we were
trying to fulfill.
For some reason, whether -- and this is looking
back, and I've looked at this with Herb, too, to see what was
going on. Whether we just didn't give notification because we
were getting confused because there were two Gillilands, which
may be a possibility, or else notification was going to a
tenant somewhere.
Because everything we see on here is Tom Morrow
and Freitas but not the landowner. And when we start talking
to the Department, I want to see if there's anything that we
can show that went right to -- your father; is that correct,
Guy?
MR. GILLILAND: Mervin, Mervin Gilliland.
BOARDMEMBER PARSONS: To Mervin.
But he actually has a meter on his property. What
he's trying to do right now is to resolve this and ask for a
meter actually for Lowry so he doesn't have to share the water
anymore. But I think Lowry should be asking for it himself,
but Lowry has this agreement going on and he doesn't have to
release it unless we do something.
CHAIRMAN VICTORINO: Ms. Raisbeck?
BOARDMEMBER RAISBECK: If we could look at page 22.
CHAIRMAN VICTORINO: That's the one with the map;
is that correct?
BOARDMEMBER RAISBECK: With the map, right.
I'm a little confused myself. Apparently, the
meter, you say, in the Department's records is assigned to 33.
And I assume, from what I know about how big pieces get broken
up, that probably the original property included both your
three lots and maybe the three lots that include 33.
MR. GILLILAND: 33 was the original TMK for the
36.
BOARDMEMBER RAISBECK: For the whole 36?
MR. GILLILAND: For the whole 36, correct.
BOARDMEMBER RAISBECK: But 85 was not?
MR. GILLILAND: 85 was not. It was a separate
36-acre parcel. So 33 and 85 were the two initial 36-acre
parcels.
BOARDMEMBER RAISBECK: Okay. And 33, meanwhile,
has been broken into 6 --
MR. GILLILAND: 33 got split into two 17s. And
those two individual 17-acre parcels got separated into three
family lot subdivisions.
BOARDMEMBER RAISBECK: Okay. Well, I did read the
material that was provided by the department. And I see there
was an agreement authorizing waiver for subdivision water
systems that you signed.
MR. GILLILAND: Yes.
BOARDMEMBER RAISBECK: Okay. And this agreement,
to me, reads that the waiver exists only for purposes of
dividing up the property, not for purposes of housing and not
for purposes of -- let's see, what else was it?
Not for purposes of housing. That's on page 3 of
the agreement. "No residential building permit or additional
water service shall be requested by the subdivider and all
subsequent without full compliance with all subdivision
requirement under Rule 2 and other rules and regulations of
the board in effect at the time that a residential building
permit or additional water service is desired."
MR. GILLILAND: Yes.
BOARDMEMBER RAISBECK: Now, the trustee -- on page
4, the trustee, that was the original owner?
MR. GILLILAND: Correct.
BOARDMEMBER RAISBECK: Well, it's a woman's name,
I thought.
MR. GILLILAND: It would be -- yes, pardon me. It
would be my mother and father.
BOARDMEMBER RAISBECK: So the trustee represents
that water service necessitated by the subdivision can be met
by the existing water system and would not require a private
water system.
MR. GILLILAND: Yes.
BOARDMEMBER RAISBECK: And the existing use of the
property does not include any existing structures or private
sewage disposal systems.
And there's also a hold harmless clause at the
very end -- or not the very end. On page 5, there's a hold
harmless clause. And in the agreement -- based on the
trustee's representation, the board finds that water service
necessitated by the subdivision request can be met by the
existing water system and does not require a private water
system.
So what I read this agreement, which you signed in
19 -- when was it?
MR. GILLILAND: I believe '93.
BOARDMEMBER RAISBECK: Okay. Which you signed at
the time of the subdivision request.
MR. GILLILAND: Yes.
BOARDMEMBER RAISBECK: To me, what this says is
that the subdivision is totally for the ability of the family
to give property ownership to the children.
MR. GILLILAND: That's the way I understand it.
BOARDMEMBER RAISBECK: And it specifically
excludes housing. It specifically says that essentially, the
use of the subdivision to grant the right to build a home, for
example, is not included. That's the waiver part of it.
So you sort of waived your right to get a meter in
that agreement, to me. And you know, if you have other
opinions about it, I'd like to hear it. It seems to me a very
tightly-drawn agreement.
MR. GILLILAND: I mean, my -- generally, I don't
dispute anything, your interpretation of it.
But I think really what the agreement is it
enabled the family to break up a property, defer the water
improvements, particularly the laterals connected to the main
water line until such time as we're prepared to do a building
permit, to pull a building permit and -- but it didn't
preclude us from the opportunity to do that.
It didn't preclude us from the opportunity -- at
the point in time that we were to pull the permit, if you read
the agreement, it requires us at that time to complete the
deferred subdivision improvements, which is what we're
pursuing and we're doing.
So we're following the spirit of that in terms of
putting the deferred improvements in place in order to enable
us to get a building permit. But it didn't prohibit us from
getting the building permit.
BOARDMEMBER RAISBECK: No, it didn't prohibit you.
But it does make you subject to all -- I mean that was what,
'93?
MR. GILLILAND: Yes.
BOARDMEMBER RAISBECK: '93, that's 12 years ago.
It makes you subject to all of the rules that have been passed
in the 12 years since.
MR. GILLILAND: I agree.
BOARDMEMBER RAISBECK: And one of the rules that
was passed in the 12 years since was the rule establishing the
upcountry waiting list. And so there was a 60-day period in
which people who wanted a meter should have done it. And
again, the rules say specifically that if it isn't done within
the 60-day period, your opportunity fails or lapses.
So I have the problem that to me, I haven't -- I'm
not an attorney and I haven't consulted our attorney, but to
me that agreement is so tightly drawn that it requires -- it
does not give you the right to ask for the meter at this time
unless you are on the waiting list.
CHAIRMAN VICTORINO: Well, let's make sure
everybody has a chance before I go back to Ms. Parsons. Does
anybody else have any questions for Mr. Gilliland?
Okay. Mr. Hiranaga?
BOARDMEMBER HIRANAGA: Do you reside on the Island
of Maui?
MR. GILLILAND: No, I don't.
BOARDMEMBER HIRANAGA: Where do you reside?
MR. GILLILAND: On Oahu.
BOARDMEMBER HIRANAGA: So have you been following
the situation with the upcountry water meter shortage since
1993 to 2005?
MR. GILLILAND: No, I couldn't say that. That
wouldn't be the case. I've gotten more familiar with it now
as I've gone through the process.
BOARDMEMBER HIRANAGA: So for the past 12 years,
you've been fairly ignorant about what's been happening on
Maui as far as --
MR. GILLILAND: Passive, yes.
BOARDMEMBER HIRANAGA: Okay, that's all.
CHAIRMAN VICTORINO: Any other questions?
I'll go back to Ms. Parsons. I just wanted to
make sure that everybody had at least one opportunity.
Okay, Ms. Parsons.
BOARDMEMBER PARSONS: I just wanted to clarify the
fact that you do have a water meter on this parcel?
MR. GILLILAND: Yes. Physically, it sits on
parcel 166.
BOARDMEMBER PARSONS: And it's your water meter?
It's to feed your parcel and service the one next to you, as
well?
MR. GILLILAND: Right.
BOARDMEMBER PARSONS: It's a shared meter?
MR. GILLILAND: Right.
BOARDMEMBER PARSONS: But it is assigned to your
parcel?
MR. GILLILAND: As I understand it, at the
minimum, we think it's a -- we have a right to it. But in
working with the DWS and Herb, their interpretation is it's a
shared meter.
BOARDMEMBER PARSONS: But who did it get assigned
to originally?
CHAIRMAN VICTORINO: Before we go any further, I
think it would be prudent that unless the questions --
respectively, I'd like to get Herb up here to give his or to
address some of the questions that you're bringing up.
Herb, would you mind? Herb Chang, please?
Thank you, Herb.
Okay. Mr. Kushi.
MR. KUSHI: Are you Lance or Guy?
MR. GILLILAND: I'm Guy.
MR. KUSHI: Okay. Who's Lance?
MR. GILLILAND: Lance would be Leroy's son, and he
owns parcel 261.
MR. KUSHI: And parcel 261 is not part of the
subdivision?
MR. GILLILAND: Not the Gilliland parcel.
And if I can just add --
CHAIRMAN VICTORINO: Hang on. Please, everybody,
you need to speak slowly and loudly, because that noise is
very difficult for her and even for myself sometimes hearing
what you have to say.
So I ask all testifiers -- Herb, I know you're a
very soft-spoken person. I'm going to have to ask you to come
out of that shell and really speak up, please. I'd really
appreciate it, because it's a real challenge with this noise
today.
Go ahead, Herb.
MR. CHANG: I'll give a brief summary on what -- I
had a lot of meetings with Guy, so I'll give you kind of a
quick rundown on what we had discussed, and maybe it might
shed a little bit more light.
This particular subdivision that we're talking
about that entered into this deferral waiver agreement --
CHAIRMAN VICTORINO: Herb, hang on. I'm going to
call a recess.
(A brief recess was taken.)
CHAIRMAN VICTORINO: I'm going to reconvene the
meeting. We have a microphone there, and that's to be passed
around, which has amplification. But right now the noise has
stopped, so let's move as quickly as possible in this area.
Herb, you were left hanging, poor thing. I
apologize. If you'd go ahead and start from the top as far as
the Department's review on this whole matter.
MR. CHANG: Just a quick summary of my discussions
with Guy Gilliland.
He's one of the owners of the three lots that
we're talking about. And like we talked about before, there
was a family subdivision agreement entered into. So his
intent was to construct a dwelling on parcel 166. So we tried
to figure out a way how to get that accomplished.
So one -- there's basically two steps. One is to
get rid of this agreement that was entered back in 1993, which
is saying they cannot apply for a building permit, cannot get
water service --
(Reporter interruption.)
MR. CHANG: The agreement that was entered back in
1993, which needs to be cancelled, and the way to get it
cancelled is to comply with the subdivision requirements,
which Guy has submitted construction plans. So once those
things are constructed, these things, this agreement can be
cancelled.
The other half he needs to comply with is -- let's
talk about this water meter being shared between this property
of the subdivision and parcel 85. The County Department
records show that there is references to both TMKs, and so
before the department can say, okay, we'll allow the meter to
be assigned to parcel 166, which is Guy's property, we're
going to have to make sure that parcel 85 is not going to come
back to the department and say, hey, I have some rights to
this meter. So we wanted to make sure we don't get into
trouble.
So we asked Guy whether he could have parcel 85 to
release all rights. Unfortunately, Guy was not able to
achieve that. And so this is where we are right now.
CHAIRMAN VICTORINO: Just for clarification,
parcel 85 that you're referring to, is that Lance -- is this
what Lance's letter is?
MR. GILLILAND: No.
CHAIRMAN VICTORINO: What is Lance's letter?
MR. GILLILAND: I only saw it also myself this
morning, so this is just my preliminary look at it. And his
parcel that he owns and is the owner of is parcel 261.
For reference, they received a certified notice
which put them on the priority list at number 26. I have a
copy of the priority list. It notes their subdivision.
That's where I have some questions about why they got the
notice and we didn't get a notice, which would preclude
anything from this nine years arising. We would have at least
been on the list, in the running to get an opportunity to
pursue.
So they've got a meter on 261, and I believe they
have another meter, too. They've already got two meters. I'm
not clear; I'm not really sure.
BOARDMEMBER PARSONS: They do.
THE WITNESS: On parcel 33. So they already have
two meters. And now he's putting in a claim. This is the
first time I'm reading this. We don't have any squabble or
anything, but I think he's just, you know, registering his
interest is what I see in the letter.
CHAIRMAN VICTORINO: Just for clarification, Lance
is your --
MR. GILLILAND: He's my first cousin. Mervin is
my dad. Leroy is Lance's dad.
CHAIRMAN VICTORINO: Lance's dad, okay. Just so
all of us are clear on this matter.
MR. GILLILAND: Certainly. So that's why.
CHAIRMAN VICTORINO: Did that help you, Sally, as
far as the clarification on the board's stand?
BOARDMEMBER RAISBECK: No, not really. Because
what this letter says is that "the meter described above is
located on but not assigned to 166. This meter was moved from
33 and placed on parcel 166 by myself," by Lance, in order to
satisfy the Board of Water Supply requirements."
So that the history of this meter is it was moved
to the location on your lot from a different location but not
assigned to your lot, according to him, according to him.
BOARDMEMBER PARSONS: Ask Herb.
BOARDMEMBER RAISBECK: Well, I'm just quoting what
the letter says here.
So I need to understand, I guess, Herb -- I know
there are remote meters that exist that are located in one
place and on some other lot. Is that one of these cases? Who
is that meter assigned to?
MR. CHANG: I'll explain it, try to explain it
without drawing pictures; but if I need to, I will draw
pictures.
If you notice on -- what sheet is this --
BOARDMEMBER RAISBECK: Yes, I've got a copy. All
the board members have a copy of that.
CHAIRMAN VICTORINO: What page is that?
BOARDMEMBER RAISBECK: Page 22.
CHAIRMAN VICTORINO: 22, okay. All board members,
22.
MR. CHANG: If you look on page 22, the area that
is kind of highlighted is the makai subdivision. The one to
the left of that, which is an additional three lots, that is
guy's first cousin's; he has interest in that one.
And if you take the area that is within all
these -- actually, there's six lots here. Because the
original property started off with what is now six lots. And
the first step of their transition was they cut up the
original lot into two lots, and they further subdivided each
of the two lots into three lots, which is what we see now.
And both subdivisions, when they processed the
application with the Water Department, went under this family
subdivision agreement. So Lance's subdivision, he applied
for -- he made his application to Public Works in 1993.
Guy's, they made application in 1992.
Being that Lance's subdivision which was applied
in 1993, it was applied for after March 16th, 1993, so that
was automatically put on the priority list, because that's
when we used as the cutoff date. So I think Guy's is number
26 on the list.
MR. GILLILAND: Yes.
MR. CHANG: So when we came to that position, we
offered the meters, Lance did his thing, he did whatever he
needed to do to complete -- to satisfy the family subdivision
agreement, which was service laterals. I think that's about
all he did.
So he was able to wipe out that agreement
saying -- that restricts him, or which prevents him from
applying for water meters. So that's how we got to this point
where his side of the subdivision, all three lots have water
meters.
And so the question came up during that process
where they got water meters: So what are we going to do with
the existing meter? And I think, from what I recall, Lance
was saying put it on the other side, which is Guy's portion,
because he didn't really need the meter. Because the original
lot had only one meter when it was one parcel.
So we thought, okay, no problem, we'll just put it
on the other half. But that still didn't clear up the sharing
of the meters.
CHAIRMAN VICTORINO: So you're saying that Lance,
as far as your research has shown, agreed to put the meter on
Guy's side of the property because he already had the meters
he needed?
MR. CHANG: He will be getting them.
CHAIRMAN VICTORINO: He will be getting the meters
that he needed.
MR. CHANG: (Nods head up and down.)
CHAIRMAN VICTORINO: But did not release the meter
as far as to Guy's property; it still wants to be a shared
meter; is that what you're saying?
MR. CHANG: Correct.
MR. GILLILAND: In response to Herb, because this
is the first time I heard these dates -- and we may not have
hit this when we talked, Herb. But you said March 16th was a
date that allowed the Leroy Gilliland, for lack of a better
word, subdivision to get the certified notice.
We didn't get our complete subdivision until --
the approval was April 28th, '93. And so that's what -- part
of the confounding thing for us is that the Leroy Gilliland
subdivision got the certified notice to at least register on
the priority list and have a standing to be in the mix to get
a meter. And we completed ours after this March 16th date,
which is the date I was trying to determine what is the --
what was the procedural process in the administrative
implementation.
I recognize it was a real challenging time that
was going on there. And the fact that there was a working
knowledge of our ongoing subdivision and we were precluded
from getting a notice is the issue to us. We would have
registered all three lots -- I mean, that would be my sense of
it -- if we got the proper notice. And I'm not saying it's --
it's just an oversight, or maybe the confusion between the two
subdivisions, but that's kind of the essence of our position,
everything else aside, to be real honest with you.
CHAIRMAN VICTORINO: Ms. Raisbeck, you had your
hand up.
BOARDMEMBER RAISBECK: Yes.
I'm still a bit confused, I'm sorry to say. The
sharing is not then with any of the three lots next to your
three, the three lots on your side of that divide; the sharing
that's occurring is with 85?
BOARDMEMBER PARSONS: Well, it was all one big
parcel at one time.
BOARDMEMBER RAISBECK: So the meter in question at
one time served -- is it still serving 85? Is the water from
that meter going to 85?
MR. GILLILAND: The water facility resides -- for
the cattle, resides on parcel 166. That's where they clean
the cattle, you know, dehorn them, do all the works. The
watering is there. The cattle graze -- the demise is the
parcel 85 of 36 acres.
And I know it's very confusing, so I appreciate
your, you know -- and then also parcel 166, the entire -- all
the parcels, with the exception of Lance's house now, where he
doesn't have cattle on there.
But the original demise was parcel 33 and 85,
which were two 36-acre parcels. And the cattle continued to
graze that but come to parcel 166 for water, with the
exception of parcel 261 where there's a home on it now, with
meters. I mean, they have their own meter, too.
BOARDMEMBER RAISBECK: So there are no houses
on --
MR. GILLILAND: 85? No.
BOARDMEMBER RAISBECK: No. On yours.
MR. GILLILAND: Pardon. Yes.
BOARDMEMBER RAISBECK: 222, 166, 223, no houses?
MR. GILLILAND: Yes, correct.
BOARDMEMBER RAISBECK: And there's one house on
the other --
MR. GILLILAND: On 261.
BOARDMEMBER RAISBECK: On 261, but not on what is
now 33?
MR. GILLILAND: Correct.
BOARDMEMBER RAISBECK: Okay. So there's one house
that has its meter, and the meters have been in place on what
is now 33 and the one above?
MR. GILLILAND: They applied and received meters,
if I'm not mistaken.
BOARDMEMBER RAISBECK: They received meters.
Those meters exist.
And meanwhile, for this 12 years, parcel 85 has
been using the water from 166. Has anybody else used water
from that meter? Or the tenant leases all of that?
MR. GILLILAND: Yes.
BOARDMEMBER RAISBECK: The tenant leases all of
that?
MR. GILLILAND: Yes.
BOARDMEMBER RAISBECK: Except for the place where
Lance has his house?
MR. GILLILAND: Yes.
BOARDMEMBER RAISBECK: I see. And the use has
been for the purpose of the cattle this entire 12 years?
MR. GILLILAND: Yes.
BOARDMEMBER RAISBECK: Okay. Now I understand.
Thank you.
CHAIRMAN VICTORINO: Mr. Hiranaga?
BOARDMEMBER HIRANAGA: Looking at the staff
report, it does not state who this -- which parcel this meter
is assigned to. Because the meter can only be assigned to one
parcel. So what parcel is it assigned to?
MR. CHANG: This issue about the meter can only
serve one property really came up in our rules and regs of
1994. This meter has been in place since --
MR. GILLILAND: '72.
MR. CHANG: So although the 1994 water system fee
rule came into place, which had a condition where everybody
who was sharing meters was supposed to come in and declare I'm
sharing; I want to stop and I want to come in for more meter.
I mean, the public is not going to do that. Although there is
a condition in that particular rule that requires it, it
hasn't been done. It was not done in this case, either.
VICE-CHAIRMAN OKAMURA: What is that?
MR. CHANG: Declaring that you're sharing a meter
and applying for your own separate meter.
CHAIRMAN VICTORINO: Let one board member finish
his line of questioning.
Go ahead, Mr. Hiranaga.
BOARDMEMBER HIRANAGA: So your answer is -- which
parcel is this meter assigned to? Both?
MR. CHANG: According to our records, there are
references to both properties. So we would surmise that it's
being shared.
BOARDMEMBER HIRANAGA: So the official position of
the Department is this meter is officially shared by 166 and
85? Is that the official position of the Department?
MR. CHANG: I would say because the original
property which is 33, which is now six lots, and because
Lance's properties have their own three meters, I would say
166, 223, 222, 85 is now shared.
BOARDMEMBER HIRANAGA: Okay. Looking at the TMK
numbers, it appears that the Leroy subdivision was granted
final subdivision approval after the Lance subdivision,
because the TMK numbers are higher than the TMK numbers for
the Lance subdivision.
MR. CHANG: Lance's subdivision -- are you
referring to the position on the priority list?
BOARDMEMBER HIRANAGA: 222, 223.
MR. CHANG: Yes. We placed subdivisions by the
date that they applied for subdivision with the Department of
Public Works. So Guy's subdivision was applied in 1992.
Lance's was applied in 1993.
BOARDMEMBER HIRANAGA: Is that Leroy, Lance or --
MR. GILLILAND: One and the same.
MR. CHANG: The one that we offered meters to, the
one on the left side. They actually applied for their
subdivision application in 1993; so they were placed on the
priority list according to that date. And Guy's subdivision
was applied in 1992, which there's no projects on the priority
list before 1992.
BOARDMEMBER HIRANAGA: So these conditions for
subdivision, I don't see those additions for subdivision
approval. Those conditions that were deferred, I don't see
the conditions.
MR. CHANG: What do you mean, conditions?
BOARDMEMBER HIRANAGA: It says that you would sign
this agreement to defer the subdivision conditions and you
cannot obtain a water meter until these conditions are
satisfied. What are those conditions?
MR. CHANG: The conditions would be set at the
time they either come in for water service or come in for
building permits. They would need to comply with the current
applicable subdivision rules and regs for subdivisions at the
time they come in.
BOARDMEMBER HIRANAGA: So have you specified those
conditions, identified those conditions?
MR. CHANG: Yes, we have. In fact, they already
submitted construction plans to satisfy this.
BOARDMEMBER HIRANAGA: So they're in the process
of complying or satisfying those conditions?
MR. CHANG: Yes.
BOARDMEMBER HIRANAGA: And this decision to
satisfy these conditions was made when, their application?
MR. CHANG: It was just this year, I think.
MR. GILLILAND: Yes. Well, we commenced the
discussions in May of '04; and through the course of talking
with Herb, we submitted --
BOARDMEMBER HIRANAGA: And Leroy, when did they
obtain their additional water permits?
MR. CHANG: I don't have that data.
MR. GILLILAND: Very roughly, I think it was '96.
9
BOARDMEMBER HIRANAGA: Could the staff reply,
please?
CHAIRMAN VICTORINO: Herb, please.
MR. CHANG: I don't have that information with me.
BOARDMEMBER HIRANAGA: Was it recently?
MR. CHANG: Within five years.
BOARDMEMBER HIRANAGA: So they were issued three
new meters although they had an existing meter? Or they were
issued two new meters?
MR. CHANG: I don't have that information. But it
sounds like, if I were to look at the numbers, they got three
meters, new meters.
BOARDMEMBER HIRANAGA: Was that legal for him to
transfer the meter to 166 from 33?
MR. CHANG: I believe so, because when they did
the two large subdivisions, they entered -- I think they also
entered into one of those family subdivision agreements.
So I think that what happened was it was mutually
agreed with Lance and the Department that if they wanted to,
they could transfer or relocate the existing meter onto Guy's
subdivision and obtain three new meters. That wouldn't be a
problem with the Department under the water meter issuance
rule.
VICE-CHAIRMAN OKAMURA: Can you repeat what you
said? I'm sorry.
CHAIRMAN VICTORINO: Go slowly.
MR. CHANG: At the time when we offered three
meters, two or three meters to Lance, the department and Lance
both decided that it wouldn't be a problem if the existing
water meter was transferred onto Guy's half of the
subdivision.
CHAIRMAN VICTORINO: So if I'm correct, you
physically moved that meter from where it was located over to
its present location? And the old location was Leroy's
subdivision?
MR. CHANG: I would say Lance's.
CHAIRMAN VICTORINO: Lance's, okay. Let's use,
just for confusion purposes, Guy's.
MR. CHANG: Guy's.
CHAIRMAN VICTORINO: And then moved it to -- no,
moved it from Lance's to Guy's subdivision?
MR. CHANG: Yes.
CHAIRMAN VICTORINO: Okay. I'm just getting a
little confused myself listening to this. I apologize.
BOARDMEMBER HIRANAGA: So you installed a new
service lateral to service 166? How does --
MR. CHANG: Because the original subdivision, the
large lot subdivision entered into a family subdivision.
Before we could approve the three water meters to Lance's
subdivision, they had to comply with the original family
subdivision agreement.
So he had to install, as part of his three-lot
subdivision, a new lateral for Guy's. There was actually
three family subdivision agreements entered into, the original
and then the subsequent three subdivisions.
BOARDMEMBER HIRANAGA: Okay, thank you.
CHAIRMAN VICTORINO: Mr. Okamura, you had --
VICE-CHAIRMAN OKAMURA: I was just asking him
about what he said. I couldn't -- I missed what Herb said, so
I just wanted him to repeat that.
CHAIRMAN VICTORINO: Okay. Ms. Parsons?
BOARDMEMBER PARSONS: Herb, could we have confused
or missed sending Mervin a notice at that time? Could we have
confused it with Leroy?
MR. CHANG: I don't think so, because we went
strictly by subdivisions' applications and the date of the
application with Public Works. And clearly, Guy's
subdivision, their application for subdivision was made in
1992; so there would have been no other procedure other than
the priority list to notify them.
BOARDMEMBER PARSONS: But if they were in the
process of doing a -- this is what I kind of don't understand.
If they were in the process of doing a subdivision and it was
completed in '93, why wouldn't they have been included on the
automatic priority list?
MR. CHANG: It was a decision that we use the
application date with Public Works is how we placed projects
on the list. If we had chose to use final subdivision
approval is another method, perhaps it would be, but that
wasn't the decision.
BOARDMEMBER PARSONS: And then when we went in to
clean this up later on, you know, when we were asking for
people to come forward, we sent notifications out?
MR. CHANG: No, because the Department didn't know
how many -- who was sharing. And to go through our files --
BOARDMEMBER PARSONS: Oh, okay.
CHAIRMAN VICTORINO: Ralph, you had a question?
BOARDMEMBER JOHANSEN: Well, I don't know whether
it's terribly relevant. But doesn't the Department's records
with respect to these parcels reflect whether a notice was
sent to both parties or to one party, the right party, whether
it's certified or not, there should be some record of the
notice. And if there's a record of the notice, there's a
presumption that it's received unless it's returned.
CHAIRMAN VICTORINO: Do you want to answer that,
Herb?
MR. CHANG: I'm not quite following that.
BOARDMEMBER JOHANSEN: Well, is there a record of
a notice to the proper party in the Department's records?
That's all I'm asking.
MR. CHANG: Notice of what?
BOARDMEMBER JOHANSEN: He's saying he didn't
receive certified notice, which is ambiguous to me, because I
don't know whether he received a notice that wasn't certified.
I'm just confused about that question, if it's relevant.
MR. CHANG: Well, let me explain. We do send out
certified letters as meters become available to projects on
the priority list. That's the only people that we -- project
owners that we actually send out letters to.
So in this case where his first cousin's project
was up for meters, we would -- we did send certified letters
to those property owners that were affected only. Being that
Guy's property wasn't really offered meters because they're
not even on the priority list, there was no reason to send
them any certified letters.
CHAIRMAN VICTORINO: So if I get this correct,
Herb, because their subdivision went in for approval in 1992
and subsequent in 1993 -- I'm not going to use months or
dates, but just 1993, we came up with this priority list,
which subsequently you looked at anything that was from 1993
forward that was on the books or on the scales or whatever you
want to call it, and those were the people that were sent
these notices?
MR. CHANG: They were sent certified letters when
meters were available for their projects.
CHAIRMAN VICTORINO: But those are the guys, those
are the people that would have been sent these certified
letters?
MR. CHANG: Yes.
CHAIRMAN VICTORINO: Anything prior to that, 1992,
1991, would not have been on that scope, on that map,
whatever?
MR. CHANG: Yes.
CHAIRMAN VICTORINO: Okay. I'm just clearing this
up because I'm trying to clear it up in my mind.
Yes, go ahead.
BOARDMEMBER HIRANAGA: Certified letters were sent
to people that were on the priority list or to be placed on
the priority list?
MR. CHANG: Certified letters are being sent to
project owners when the department has -- is ready to offer
that particular project water service.
BOARDMEMBER HIRANAGA: But they're already on the
list?
MR. CHANG: Right.
BOARDMEMBER HIRANAGA: So this claim that he
wasn't provided notice to get on the list, was there a policy
or a decision that certain people were required to be provided
notice to be placed on the list? Or was it just public
knowledge of the notice that there's a list being formed; if
you want to get on this list, you get on the list?
MR. CHANG: It was pretty much the latter. We did
notify the public by Maui News, I think Haleakala Times.
BOARDMEMBER HIRANAGA: So we're talking in 1993,
not 2002?
MR. CHANG: In 1993, we -- back in '93, up to
2002, it was just general knowledge.
BOARDMEMBER HIRANAGA: He's claiming he did not
get certified notice to sign up on this.
MR. CHANG: There was no such thing as certified
letters to anybody.
BOARDMEMBER HIRANAGA: Isn't that your claim,
though?
MR. GILLILAND: Maybe I used the wrong word. But
the notice, I had understood that Lance had gotten notice,
with their subdivision in the works, to register on the
priority list. That's what we were relying on, too, is being
notified, with an approved subdivision that occurred in April
of '93, to at least, heads-up, you guys got this deferred
water agreement with some preexisting right at that time, get
your name on the list.
I mean, they're 26. Leroy Gilliland is 26. Also
on the list, there's priority dates of number 5. And I was
trying to read this legend. There's water reservations,
there's subdivisions, and there's building permit
applications. There's three types, and maybe I should -- you
folks know this better than me. But number five on the
priority date is a 4/7/93 subdivision. We got approval 4/16.
BOARDMEMBER HIRANAGA: So on your letter, page
number 5, at the bottom you say: "Gillilands felt they should
have received certified notice to register on the priority
list."
So are you saying that you felt the County had an
obligation to notify you that this priority list was being
formed?
MR. GILLILAND: The word certified may not be the
correct term, but notice, you know, or communication.
BOARDMEMBER HIRANAGA: You felt the Department had
an obligation to notify you that this list was being formed?
MR. GILLILAND: To get on it. Put your name on
the list so at least you have an opportunity at a later point
in time to register for standing.
CHAIRMAN VICTORINO: Ms. Parsons?
BOARDMEMBER PARSONS: Herb, do you feel that --
you kind of mentioned this earlier that maybe if we had used
when the subdivisions were final rather than applied for, or
maybe both, in that time period. Do you think this may have
fallen through the cracks because of the procedure that we
used? Is that a possibility?
MR. CHANG: I don't think the Department really
gave much, too much emphasis on -- we just felt that the --
well, what happened was if you look at it, 1993 and 2002, when
the water meter rule came into play, there's a gap of nine
years.
I think the Department felt by using the date that
this applicant made his submittal to the Department of Public
Works would be the, I guess the most fair; because that's
more a timeline that would allow more subdivisions to be
placed on the list versus final, because application
becomes -- is prior to final approval. So that would allow
more projects to be on the list.
So it was just based on that, we decided it would
be more advantageous to the public. More or less, we decided
to put more projects on the list by using the earlier date,
not really taking into account the final, you know, what
happens if somebody's like on the borderline.
BOARDMEMBER PARSONS: Like this is, because it's
like he's finished in '93. So he kind of fell through the
cracks, right? Because he wasn't finished but his application
went in before we started the list, but he didn't finish until
we started the list.
MR. CHANG: But then again, he had nine years to
do his thing.
CHAIRMAN VICTORINO: And his thing, I think he's
referring to is getting on the priority list. I think that's
what you're referring to.
MR. CHANG: Or comply with his family's
subdivision restriction, get rid of that and apply for the
meters.
CHAIRMAN VICTORINO: Thank you.
Okay. Sally, then Kent.
BOARDMEMBER RAISBECK: Okay. One of the questions
this brings up for me is what defines the ownership of a
meter. Is it ownership of the lot that it's placed on, is it
usage, is it -- does the history affect this here so that when
Mr. Gilliland says that, you know, the meter belongs to that
property, the question it raises in my mind is it's never
been -- well, it's been used by the adjacent property for all
of these 12 years, and presumably the bills have been paid by
the tenant of the entire property, of the 85 and these other
ones that aren't Lance's.
So I just don't -- maybe Mr. Kushi has -- or
George, maybe George can give us a little more guidance about
what constitutes ownership of a meter. Is it simply the
ownership of a particular land that the meter is located on?
DIRECTOR TENGAN: Mr. Chair, if I might.
CHAIRMAN VICTORINO: Mr. Tengan, go ahead.
DIRECTOR TENGAN: The property itself doesn't own
the meter. The property would have rights to the meter. And
I would say in this case here, we would probably have to go
back to the original date of application and, you know, what
lots are possible that the application was being filed for.
And in this case here, it looks like it should go
back to 33.
BOARDMEMBER RAISBECK: So that in '72 or whatever,
when the meter was put in in a different location, that would
sort of determine ownership?
DIRECTOR TENGAN: No. It's the application that
the meter was being applied for.
BOARDMEMBER RAISBECK: Well, at what time in --
DIRECTOR TENGAN: It seems like in this case here,
without seeing the original application and from all the
testimony or write-ups in here, that the original parcel 33
was the parcel that the meter should have been assigned to.
BOARDMEMBER PARSONS: But it has a new one.
CHAIRMAN VICTORINO: Hang on.
Mr. Kushi, from a legal aspect, what would be your
take on this as far as this meter, A, being moved from the
original location to the present location and what the service
agreements for that meter, how would that play into this whole
--
MR. KUSHI: Well, Mr. Chair, I don't know the
entire history of this situation. It seems like there was one
big lot at one point in time, or two big 36-acre lots and then
one remains, parcel 85. And then the other one was divided
into subdivisions, one of them is his and one of them is
Lance's. Correct?
MR. GILLILAND: Essentially, yes, but the dad's.
MR. KUSHI: And then the meter in question was
assigned to Leroy or Lance's subdivision; they divided that
into three lots, and per the Department, they got three new
meters. So there's four meters for three lots; so they have
an extra one.
And according to the testimony, Lance or Leroy
says, okay, go ahead and move that meter to my cousin's
property; but apparently, the Department's records indicates
that the subject meter is still assigned to Leroy or Lance's.
MR. GILLILAND: Correct.
MR. KUSHI: So I don't see a problem in assigning
that meter since there's an extra one, unless he wants to be
greedy and have four, you know. But that's another problem.
That's separate from what he's asking for.
CHAIRMAN VICTORINO: Right.
MR. KUSHI: But even if you resolve that, even if
you resolve that issue about Guy having one meter, he still
has three lots. That's one issue here, whether he should get
two additional lots, two additional meters.
The other issue is testimony has it that one
existing meter is being used by parcel 85, which is not part
of this subdivision. That's the original 36-acre lot.
Now I'm not sure, when they say sharing the meter,
is parcel 85 strictly grazing? Are there any structures on
parcel 85?
BOARDMEMBER RAISBECK: No.
MR. GILLILAND: Not necessarily.
MR. KUSHI: Are there any structures on parcel 85
is one question. Are there any structures on this three-lot
Guy's subdivision is another question.
If the meter is serving parcel 166 and is I'm
assuming grazing, there's a trough or whatever they use, and
the cows go into parcel 85 but they drink the water from
parcel 66, I don't consider that sharing.
I mean, if the water from parcel 66 goes over to
parcel 85, then that may be sharing. But these are factual
issues that you need to ferret out.
CHAIRMAN VICTORINO: Kenneth?
VICE-CHAIRMAN OKAMURA: Thank you.
So what you're asking right now is for like a
2-inch meter?
MR. GILLILAND: Our prior request is to address
the lack of being put on the priority list so that we could
have an opportunity for the three lots to register.
VICE-CHAIRMAN OKAMURA: But actually, you want a
2-inch meter basically based on that?
MR. GILLILAND: Not necessarily. The preference
would be three meters for the three lots, to be honest with
you.
VICE-CHAIRMAN OKAMURA: And Herb, I also wanted to
ask you, you said that if he complied with the subdivision
requirements or something like that, currently, the current
requirements, he would be entitled to a meter or meters; is
that what you said?
MR. CHANG: No. If he did the subdivision
improvements, he would be able to cancel that agreement, and
whereby the restrictions of that agreement would be no longer
--
VICE-CHAIRMAN OKAMURA: And then stand in line for
a meter after that?
MR. CHANG: Right.
VICE-CHAIRMAN OKAMURA: And then on this letter
from Lance, it says the requirement and others placed -- well,
he's saying he moved the meter to parcel 166 "by myself in
order to satisfy the Board of Water Supply requirements."
So we need to find out possibly what that means,
what requirements were placed on Mr. -- in regards to that
meter, we need to find out what requirements the board, the
Department placed on Lance Gilliland when he was allowed to
put in the three meters. We need to find out what requirement
forced him to place the meter on lot 166, I think. Thank you.
CHAIRMAN VICTORINO: Okay. Anybody else?
Okay. I'll do Stacy first.
BOARDMEMBER CRIVELLO: You probably explained this
before. But a priority list or notification was not sent out
to Guy Gilliland because their application was in 1992 and not
1993?
MR. CHANG: Yes.
BOARDMEMBER CRIVELLO: And that's the
consideration to determine whether they get a notice or not?
MR. CHANG: If they were not on the list, they
wouldn't be getting that notice that meters are available.
BOARDMEMBER HIRANAGA: Are you talking about the
'93 list, or the 2000 list?
BOARDMEMBER CRIVELLO: The '93, or the 2000 list.
MR. CHANG: Yes. Since Guy's subdivision was made
prior to 1993, there would be no reason to send that to his
property because he's not even on the list to offer meters to.
CHAIRMAN VICTORINO: Okay. Ginny first, then
Kent.
BOARDMEMBER PARSONS: Herb, do we want to cure
sharing? I mean, from the Department, from the Department's
level, do we want to cure it?
MR. CHANG: Sure.
BOARDMEMBER PARSONS: So whatever we decide here
could help get this situation of sharing taken care of?
MR. CHANG: (Nods head up and down.)
CHAIRMAN VICTORINO: Before I go to you, Kent, Mr.
-- okay. Go ahead, Mr. Hiranaga.
BOARDMEMBER HIRANAGA: Could you briefly summarize
the water meter issuance rule for the upcountry water system?
Is that basically that if the property owner felt they had
some type of reliance and they provided notice to the County
that they were prepared to meet the conditions in order to
receive a meter, that they would be placed on the top of the
list? Is my recollection correct?
Even though they were not on the list previously,
within that period if they said we'll meet and satisfy the
conditions, they would be placed at the top of the list?
MR. KUSHI: Mr. Chair, Member Hiranaga, if I may
respond, when we reviewed this upcountry water meter issuance
rule -- and it's in your binders in your rules. And I'm
looking at Section 16-106-04, and it's in the upcountry list.
Apparently, at that time -- well, I'll just -- the
rules basically state, under section 104, says November 2nd,
1994, a priority list of premises has been maintained by the
department by the date received. Herb said they received this
subdivision application.
MR. CHANG: The subdivision application would be
the date they applied to Public Works.
MR. KUSHI: So the key date, it says November 2nd,
1994, they've been keeping this list. Guy's subdivision
happened before that time.
CHAIRMAN VICTORINO: That's correct.
MR. KUSHI: So he was before his cousin Leroy or
Lance. So since Leroy or Lance's subdivision fell into this
crack, they became on the priority list.
Now, to address people like Guy who had a recorded
subdivision, although it's a family subdivision, he has three
lots, the board included this 60-day rule which states that
premises not on that priority list and have expended funds in
reliance upon official assurances dated before November 2nd,
1994 or have any preexisting rights associated with the
premises shall be allowed 60 days from the effective date of
this rule to apply to reserve an allocation of service.
So if he had applied during that period, which the
report states that he didn't, he would be before the priority
list. So not only he would jump the priority list, people
situated like this subdivision, but any other stand-alone lots
that for whatever reason did not apply for a meter, the
Department, the board at that time wanted a cutoff deadline, a
cutoff date to take care of all of these preexisting lots. So
that's where he falls in the crack.
CHAIRMAN VICTORINO: Go ahead, Mr. Hiranaga.
BOARDMEMBER HIRANAGA: So from what I understand
here, in my mind, this meter in question actually belongs to
parcel 33 unless there is an official record permitting the
transfer of this meter from 33 to 166. It is not uncommon for
parcels to have more than one meter. So 33 could have two
meters.
I was on the board when we created this water
meter issuance rule, and the purpose was to squash any types
of claims similar to this. And so if you're going to grant
him two more meters, you're basically waiving this water meter
issuance rule application, which will set a precedence for
other people who will claim that they were not provided
notice, and you're opening the doors to more claims in my
belief.
CHAIRMAN VICTORINO: Thank you, Mr. Hiranaga.
Ms. Raisbeck?
BOARDMEMBER RAISBECK: Yes. I was on a
three-person committee who looked very carefully at the rule
that you referred to, Kent, that you were on the board when it
was passed. And Mr. -- I do not think that section B and C
even apply in this case, because what you didn't read,
Mr. Kushi, is that B and C, which are 60-day rules -- and one
can say, oh, 60 days wasn't enough or something -- but what it
says: "Or have any preexisting rights associated with the
premises entitling the premises to water service."
Now, that waiver that Mr. Gilliland signed, that
waiver to me makes it very clear that they are waiving any
right to water service, because all they're asking for is a
subdivision that will transfer title.
And so they have waived, definitely -- they have
no rights to water service because of the waiver that they
signed. And I, for one, would not think that that waiver can
be cancelled, unless they go to the bottom of the priority
list. That's my take on what happens here.
And I just would like to say to Mr. Gilliland that
I think everybody here is very sympathetic to the hardships
that pertain to people who own property upcountry. And the
root of the hardship for many people is that the Department
has not been able to have water in sufficient supply and
infrastructure to meet the needs of everybody who would like
water.
So I'm sympathetic to you, but I think we need to
be very clear, as Mr. Hiranaga said, that there are many, many
people in a situation of hardship regarding water upcountry
because of the situation with water upcountry. But I would
not -- I do not see that -- to me, it's almost definitive that
the waiver that you signed gave up the rights to claim water.
CHAIRMAN VICTORINO: Ms. Parsons?
BOARDMEMBER PARSONS: Mr. Kushi, when did the one,
the one TMK 1 meter rule go into effect?
MR. KUSHI: Herb, was it part of the water system
development fees? It would be Chapter 108, which was done in
1993, I believe. Let me try and find that.
BOARDMEMBER PARSONS: I would think it must have
been -- it must have come either after this agreement --
because how could we make an agreement for sharing if we had
that rule in there? And then if it did that, wouldn't this
issue here in '02 negate everything?
MR. KUSHI: Back on the original question, it's
Section 16-108-5, subsection "E" as in "Ed," states: "When
premises with existing water service are subdivided, the owner
may request relocation of the existing meter or a reduced size
upon payment of relocation costs. All new premises resulting
from the subdivision of the original premises will be required
to have separate water service."
BOARDMEMBER PARSONS: And this is effective 4/93.
And we made an agreement on the subdivision for the shared
meter issue in '94? When is this date on here?
MR. KUSHI: No. Will you hold on, please? You
know, you're shooting me questions which I haven't had a
chance to research, so give me some time.
BOARDMEMBER PARSONS: I know.
CHAIRMAN VICTORINO: I think we're moving into --
BOARDMEMBER PARSONS: I'm just trying to --
CHAIRMAN VICTORINO: I know what you're trying to
do. Hang on.
BOARDMEMBER PARSONS: I have different dates here.
Oh, '92.
CHAIRMAN VICTORINO: '92; December 30th, 1992.
BOARDMEMBER PARSONS: '92, 1993. And so this
would --
CHAIRMAN VICTORINO: Before.
BOARDMEMBER PARSONS: Yeah. So this would
supersede this. And '02 supersedes both, I would think.
Well, that's when this other rule was, the 60-day rule.
CHAIRMAN VICTORINO: Hang on one moment.
MR. KUSHI: There is a rule under your Chapter 7,
entitled: Rules for Charges for Water Service, and it's Rule
16-7-4, Subparagraph F as in "Frank," and it says: "The
penalty for providing water service to lots other than the lot
to which the service is assigned is removal of the meter."
That doesn't totally address your question, but
that's where the penalty provision comes from.
BOARDMEMBER PARSONS: What date is that on?
MR. KUSHI: That happened in 1997.
BOARDMEMBER PARSONS: After this parcel.
MR. KUSHI: Herb, chime in if you can.
MR. CHANG: The 1994 agreement, which one was
that?
BOARDMEMBER PARSONS: Well, this is the one you
did with -- actually, it's earlier in -- March of '93. And
then in April of '93, we came up with the one meter, one --
one meter, one TMK rule.
MR. CHANG: That agreement you're referring to in
1993 or '92, the agreement authorizing waiver for subdivision
water systems, I don't believe there's a provision to allow
sharing.
BOARDMEMBER RAISBECK: Mr. Chair, I would like to
follow up on something that Member Hiranaga said.
CHAIRMAN VICTORINO: Yes, go ahead.
BOARDMEMBER RAISBECK: I agree with him that the
ownership of this meter, despite being on Mr. Gilliland's lot,
resides with whoever owns lot 33, which I presume is the
Lance, Lance Gilliland.
BOARDMEMBER PARSONS: No, he doesn't. He owns
261.
BOARDMEMBER RAISBECK: Who owns the other two
parcels in that three-lot subdivision? Is it Lance?
MR. GILLILAND: It's the Leroy Gilliland family.
BOARDMEMBER RAISBECK: Okay. But the ownership of
the meter resides with whoever owns that three-lot
subdivision. And the Lance Gilliland says: "My testimony
today is to ensure that this meter remains in place for the
purpose it was installed with no exceptions or conditions.
Should additional services be requested for the parcel above
of the board. I request they refer back to the properties
agreement."
Is there an agreement between the owner of those
three properties? And do you own all three of the other, the
166 --
MR. GILLILAND: The Merv Gilliland family, yes.
BOARDMEMBER RAISBECK: So the two family trusts
own the two separate three-parcel things; is that correct?
The two separate family trusts?
MR. GILLILAND: They're not trusts, no. They're
individually held by the issue of Merv Gilliland. The three
kids own the three parcels. And the three kids of Leroy
Gilliland own the three parcels of --
BOARDMEMBER RAISBECK: Okay. They own them
separately because they're subdivided? They own --
MR. GILLILAND: Yes.
And in answering that, I've got to say one thing.
Parcel 33, if it does have a right to the meter, where are you
guys drawing the line where 33 owns the meter? Because the
original 33 was owned by Merv and Leroy, okay, original. You
guys are with me, right?
BOARDMEMBER RAISBECK: What date?
MR. GILLILAND: They originally owned it half,
half up through 1983. So I'm listening to this discussion and
trying to get a sense -- you're trying to ascribe some right
to 33, but 33 was Merv Gilliland's, too, I mean if you want to
follow that thought process.
Yeah, the whole thing. So it's like -- you're all
jumping around here and I'm trying to follow it, but it's
tricky.
(Reporter interruption.)
CHAIRMAN VICTORINO: Wait a minute. There's too
much -- we have to keep the conversation one at a time.
Go ahead, Mr. Gilliland.
MR. GILLILAND: I just was clarifying the
disposition of if we're looking now, focusing on parcel 33,
don't lose sight that Merv Gilliland had an ownership interest
in parcel 33 and was the person who signed on all the
applications. From '72 -- you look at the records, because we
pulled all the records -- all the way through 1993, Merv
Gilliland signed. Leroy never signed.
CHAIRMAN VICTORINO: Director Tengan?
DIRECTOR TENGAN: Yes, Mr. Chair.
A clarification. Rights to the meter, you know,
it's not assigned to the owners of the property. Rights to
the meter is assigned to the parcel itself. So it doesn't
matter who owns the property. It's assigned to the particular
parcel, and in this case here, it's parcel 33.
CHAIRMAN VICTORINO: Okay. Thank you for that
clarification.
BOARDMEMBER PARSONS: Can we clarify why we moved
it from parcel 33 to 166? And do we have a set of whatever we
gave to Lance Gilliland to have moved it, then we placed it
with 166? So can we get that for maybe next month so we can
look at this, why we moved the -- why we moved it, what were
the rules?
MR. CHANG: I think I can answer -- without going
through the files, I think I have the answer, I'm pretty
confident, why we did that.
Because the six properties resides on what was
originally parcel 33 and because that large parcel was cut up
into two properties, one by Leroy and one by Merv, to divide
interest, at that time they did that step -- which was again
dividing that into two parcels -- there was only one meter.
And that parcel was 33.
So when they did that, they entered into the
family subdivision agreement, which pretty much says you can't
ask for more meters, and that's how they were able to cut up
that one property into two lots.
BOARDMEMBER RAISBECK: Three lots.
MR. CHANG: So when they went further into what
they were doing, each of these two parcels came in for a
subdivision to three lots each. So it's the same thing.
There's still again only one meter on the property.
So when Lance Gilliland wanted to do his section
which complied with the -- wanted to get rid of the family
subdivision agreement to get three meters, he was able to get
either two or three meters. So the choice was given to him he
could apply for three meters and then allow the existing meter
to be put on the other half; so he felt no problem.
BOARDMEMBER PARSONS: Moved? Physically moved to
TMK 166, correct?
MR. CHANG: Physically moved to the other half.
We didn't care. They could decide which one they wanted.
166 --
BOARDMEMBER PARSONS: But that's where it went,
correct?
MR. CHANG: That's where it went.
BOARDMEMBER PARSONS: Physically, it was moved.
CHAIRMAN VICTORINO: Okay, we got that.
MR. CHANG: So basically, that's it. The one
meter that was assigned to this huge lot could -- by the
department's processing, found it was okay. There was no
problem with moving it. But at that time, we didn't clear up
this thing about sharing with parcel 85. We didn't take care
of that.
CHAIRMAN VICTORINO: Okay.
BOARDMEMBER HIRANAGA: Clarification.
CHAIRMAN VICTORINO: Yes, Mr. Hiranaga.
BOARDMEMBER HIRANAGA: Was there originally one
72-acre parcel, or -- was it 72 acres and it got broken up
into two, 36, 36?
MR. CHANG: What is six lots with one lot?
CHAIRMAN VICTORINO: There's a question. What is
the question, Mr. Hiranaga?
BOARDMEMBER HIRANAGA: Was there one parcel that
was 72 acres that got broken up into 36 and 36?
CHAIRMAN VICTORINO: Mr. Gilliland?
MR. GILLILAND: No. It was Dick Laurie, first
cousin with Merv and Leroy. Merv and Leroy got their 36-acre
parcel. The entire piece prior, preceding all of this, was a
huge piece that got broken up. But just for your purposes,
Mr. Hiranaga, it was Merv and Leroy got a 36-acre, Dick Laurie
got a 36-acre individually.
CHAIRMAN VICTORINO: That's the one showing on the
map, that same map 22, as TMK 2-7-12-85, Charlotte C. Laurie
and a Richard C. Laurie. Is that what you're referring to?
MR. GILLILAND: Yes.
MR. KUSHI: For clarification, on the same page
72, you've identified parcel 85, and this is 36 acres.
CHAIRMAN VICTORINO: That is correct.
MR. KUSHI: To the left of that, there's two
separate subdivisions. At one point in time, that was parcel
33.
CHAIRMAN VICTORINO: Okay. Now I'll let
Mr. Okamura go first, and then you, Ms. Raisbeck.
Go ahead.
VICE-CHAIRMAN OKAMURA: So actually, parcel 85 has
no rights to the meter? Although he's using it, use is --
does use entitle him to rights?
MR. KUSHI: Mr. Chair, I'm not aware if parcel 85
has a meter.
VICE-CHAIRMAN OKAMURA: It doesn't have a meter,
according to Guy. But Herb asked guy to get a clearing,
something in writing stating that he gives Guy the right to
the meter, but maybe Mr. Laurie doesn't have any rights to the
meter.
But if it can be shown in the records that it was
assigned to 166, you know, then parcel 85 has no claim to the
meter. So that's another thing we could look into perhaps.
CHAIRMAN VICTORINO: Ms. Raisbeck?
BOARDMEMBER RAISBECK: Yes. I think what has
developed from all of these questions and so on is that the
tenant who is currently leasing 85, 223, 222, 33 and whatever,
260, would be the 9.497 acres. Is that 260? I can't quite
tell.
Anyway, that all is being leased as pasture, and
the use of the meter is for pasture purposes for the people,
the person or party who is leasing all of those parcels and
using it for pasture. So that's what the use of the meter is.
I agree that 85 has no claim on the meter, but I
think that unless there was -- at the time the three meters
were put in for Lance's portion, unless there was something
written between them and Guy, whoever owns the three -- or the
owners of the three parcels, I would think all six owners of
those parcels would have to agree about the use and control of
that meter.
And we do have from one of those, Lance, we do
have the letter saying he would object to any change in the
use and the purpose. And he also says, "I request they refer
back to the property's agreement."
And I ask again is there an agreement among the
six owners or up to six owners, is there some kind of
agreement about the use of the property?
MR. GILLILAND: There's just the lease agreement.
22
BOARDMEMBER RAISBECK: I'm not talking about the
tenants.
MR. GILLILAND: No, none whatsoever.
BOARDMEMBER RAISBECK: There's no property --
MR. GILLILAND: My sense is that's what he's
referring to.
CHAIRMAN VICTORINO: I think I'm coming to a point
now that I may defer this matter, because there are
extenuating -- well, at least things coming up that we don't
have information to verify or to get enough knowledge at this
juncture to make a good decision or a decision that would be
fair to all.
I think that if it's already with the board I
think that there's a lot of information that would need to be
brought forth. How this all developed -- I mean, you gave us
the history, but I think we have to go back to square one,
when it was 72, and then 36, and down and down, so that we
actually have a trail to follow. I believe that's something
very poignant.
We may also have to call Lance and ask Lance to be
here, because we need to know what he's referring to; and if
there is an agreement in writing, then to produce that
document.
I think there's too many variables at this point,
and that's why I'd like to defer the matter.
Mr. Hiranaga?
BOARDMEMBER HIRANAGA: Just as a closing remark,
if the owner of parcel 33 does not have an objection to this
meter which resides on 166 be assigned to 166, I think the
Director has the power to do that. So as long as the owner of
parcel 33 has no objection, I would not -- I would be in favor
of the meter officially being assigned to 166. But we have to
get the concurrence of the owner of parcel 33.
CHAIRMAN VICTORINO: But I think what I'm getting
is there is.
BOARDMEMBER HIRANAGA: Well, it's kind of
confusing, the last statement: "Remains in place for the
purpose it was installed, with no exceptions or conditions."
What remains in place is physically where it is.
So I don't know if he's objecting to it or not.
CHAIRMAN VICTORINO: That's why I think there's
too many ambiguous -- in that letter alone, some very
ambiguous statements that we need to get clarification. So
I'd like to defer this matter so that we can really make a
good honest decision with all the necessary information.
I would ask the department to bring forth all the
necessary changes on the priority list, how this was
developed, so that we don't have any confusion when we decide
this at our next meeting. So there will be some specific
questions that need to be answered.
Ms. Parsons.
BOARDMEMBER PARSONS: Just to clarify something,
Lance is not the owner of 33. Lance is the owner --
BOARDMEMBER HIRANAGA: I don't care.
BOARDMEMBER PARSONS: It's 261. So we really want
to see the owner of 33.
CHAIRMAN VICTORINO: Well, I think we need to
bring all the parties --
MR. GILLILAND: I believe it's one of the issues
of Leroy. I'm pretty comfortable it's one of the other --
CHAIRMAN VICTORINO: Is it all right, Director
Tengan, that we get all these questions and all these various
variables, the people that are involved, if somehow we can
make sure that they're either a part of it or have some
representation so we can make a decision on this matter?
MR. GILLILAND: I'd like to --
CHAIRMAN VICTORINO: I'm trying to defer this --
MR. GILLILAND: I understand.
CHAIRMAN VICTORINO: -- but everybody keeps
raising their hands.
So Mr. Kushi?
MR. KUSHI: Just for the record, if you're going
to defer it, that's fine with me.
Member Parsons, I would apologize, I could not
find the rule in question, but I will try and look at it
before the next meeting. And your question was what rule or
rules of the Department prohibit sharing of water meters.
BOARDMEMBER PARSONS: Okay.
CHAIRMAN VICTORINO: That's another one of those
questions that need to be addressed.
Mr. Hiranaga? Or, I mean Mr. Okamura. I
apologize.
VICE-CHAIRMAN OKAMURA: Also, I wanted to ask that
if the Department could make a judgment as to where or to
which property or to whom the meter that you share belongs to,
make a determination. If it could be done by the Director,
that would be great. Is that -- do you know what I mean?
MR. CHANG: Yes.
VICE-CHAIRMAN OKAMURA: Thank you.
MR. GILLILAND: I have one closing comment.
First of all, thank you. I recognize you guys
have a lot of business, and this is -- I'm confounded
sometimes by this whole myriad of moves and issues and
overlapping rules and regulations and disposition.
I would also add that if there's an opportunity
for me to rehuddle up with the Department, at the Department
level, and revisit my request to bring it to the board and the
mayor and we can come up with a revisiting and a resolution of
it, does it still stay in the purview of the board? Or can it
be re --
CHAIRMAN VICTORINO: Mr. Gilliland, if you can,
with the Department, come to some resolve and it doesn't have
to come back to us, that would be fine with us.
MR. GILLILAND: All right. I just didn't know if
I had that latitude.
CHAIRMAN VICTORINO: We really want to help you.
We want to be fair. We want to make sure all the information
and all parties concerned are present, at least when we make
that decision.
MR. GILLILAND: A heck of a lot more issues came
up in the discussion that I didn't know about.
CHAIRMAN VICTORINO: So with that in mind, I'd
like to defer this matter to be brought up at the next
meeting, unless you folks can come to some amicable decision
and this matter can be resolved. Is that all right with the
board?
Okay. Thank you very much. We'll take a
ten-minute break.
MR. GILLILAND: Thank you for your time.
(A brief recess was taken.)
CHAIRMAN VICTORINO: Reconvene the meeting.
Going back to my question of deferral, if I have
no objections from the board, can we please defer this matter
to our next meeting?
BOARDMEMBER RAISBECK: No objection.
CHAIRMAN VICTORINO: All those in favor?
(Ayes.)
CHAIRMAN VICTORINO: Thank you very much.
At this time I'd like to call up Captain Martin
from the Fire Department.
And I guess Alva Nakamura, will you be helping
from the Department's point of view as far as fire flow?
And we're moving agenda items, as I asked you
earlier. Under "Other Business," number IX, item A:
"Presentation by the Fire Department and the Department of
Water Supply on fire protection standards."
Captain Martin, thank you for being here. We
appreciate you waiting all this time. I do apologize. Yes,
you can speak right into there. And Alva, could you just
speak right in there. Speak clearly so that she can take the
necessary minutes.
Go ahead.
CAPTAIN MARTIN: Good morning. Thank you for
inviting me. Hopefully, I can shed some light on some of the
Fire Department requirements concerning water flow fire
protection.
I'm going to go over some numbers that the Fire
Department uses when we require the water flow fire
protection. And I also want to make the clarification that
the Fire Department gets into fire protection water
requirements when it is generally not on the County system, or
the fire hydrants or fire protection equipment is not on the
County system.
An example is if someone lives out in Kaupo,
Nahiku, where there is no County water system, the Fire
Department steps in to address that issue, and generally the
Department of Water Supply will not have -- or get involved in
that water issue.
We've had problems in the past with enforcing
because we didn't have an adopted ordinance, rules or
regulations to follow for these people that live in these
rural areas.
What we currently have for agricultural districts
is a minimum flow rate of 250 gallons. And I'd also like to
clarify the Fire Department and the Board of the Water
Department have different amount requirements right now. It
increases -- from the agriculture, 250 gallons a minute,
separated at 500 feet apart; we get up to a thousand gallons
per minute for residential; hotels usually 2,500 gallons per
minute, along with heavy industrial is 2,500 gallons per
minute.
Currently, before the County Council in the Public
Works committee, we do have -- we're trying to adopt a new
fire code. And in that fire code, we made amendments to it to
be the same with the Water Department as far as the
requirements.
We've increased the agriculture zoning to
500 gallons per minute. The rural is 1,000; duplex, 1,250;
townhouse, lowrise apartments, 1,500 gallons per minute; and
light industrial, 2,000; and heavy industrial will remain the
same at 2,500. So we're trying to be the same with the Water
Department, and we're hoping that this will help that.
But I guess basically the Fire Department has its
requirements, the Water Department has their requirements.
And again, we get involved when it's on a private system. We
inspect hydrants, we inspect water lines, we inspect flow
rates, where the Water Department doesn't.
And what we did when we recognized that we had
problems with these rural areas, we went ahead and we adopted
NFPA 1142, which is the National Fire Protection Association
standard which deals with suburban and rural fire protection.
We identified areas where people were building on agricultural
lots, which required for us 250 gallons per minute. They
either have to install a water tank or have a catchment. And
yet, some lots, these people were building 4,000 square foot
homes, and although the requirements would be 250 gallons a
minute, obviously that wasn't right. It wasn't -- it's a
safety issue for the firefighters, it's not effective.
So in that we do have, in 1142, a formula that we
can use based on the size of the home, the type of
construction, that we can use to actually upgrade the water
requirements for fire protection. And again, the Water
Department is usually not involved in these rural areas.
What we have been looking at also is homes or
facilities that require fire protection that are far from fire
stations. You can have all the water in the world at your
doorstep, you could have the best fire hydrant at your
doorstep, but until the fire truck gets there, it's useless.
So we have been advocating for a number of years, and we will
continue to advocate fire sprinklers, where you would actually
have a fire protection system 24 hours a day, seven days a
week as long, as it's maintained.
I would also like to add that the fire sprinkler
topic is coming. It's a wave throughout the nation. I was
just informed a few weeks ago that it's actually going to be
required in the 2006 NFPA fire code. So it'll be required for
all single-family dwellings.
VICE-CHAIRMAN OKAMURA: What is that now?
CAPTAIN MARTIN: To have fire sprinklers in your
home, in your single-family home.
BOARDMEMBER RAISBECK: In new --
THE WITNESS: In new construction.
VICE-CHAIRMAN OKAMURA: And who is the NFPA? I'm
sorry.
CAPTAIN MARTIN: The NFPA is the National Fire
Protection Association.
But I'd also like to clarify, we would have to
adopt something like that. And so just because it's put in
there doesn't mean people would be required to install it.
But the Fire Department is proactive in that, and we do want
to go ahead and eventually have people with sprinklers in
their homes.
But that being said, if you live somewhere let's
say like Kaupo, we want you to put in a fire sprinkler,
because the fire truck to get out there, it'll be -- it'll be
gone. So we'd rather that person put in a fire sprinkler.
You don't have to -- we're not stressing the need
for a fire hydrant. But in the years ahead, 20, 30, 40 years
from now, we cannot have subdivisions and neighborhoods with
homes or facilities with all fire sprinklers and no fire
hydrants. So there will come a time in the future where we're
going to have to have the infrastructure placed as areas
become more dense.
CHAIRMAN VICTORINO: Can I make a point in case?
Kula 200 and some of these areas for which now we have a Fire
Department there, but still many of these areas have, what,
standbys instead of fire hydrants. So even then, it doesn't
become a real good firefighting tool, because you still need
to get the necessary pressure to fight the fire.
So that's what you're referring to, that you can
build dense areas like Kula. When there was no fire station,
that was fine, standbys was the norm. But now that you have a
fire station, you still can't reap the benefits for insurance
and other credits that you could get, because you lack the
pumping capacity from a standby. Is that correct?
CAPTAIN MARTIN: That is correct. And it depends
on when it was built, established, and the infrastructure was
put in. It may have been code-compliant at the time. And of
course, we can't go in after the fact and require those to
upgrade, unless they come in for some type of permit,
application, or to build something like that.
But also, we try to be reasonable. I'm not going
to require someone in Kaupo to install a fire hydrant. We
have to be reasonable. But there will come a time in the
future where infrastructure and planning will need to be done.
Let's say we do put out a fire station in the future out in
Kaupo, and the response would be quick, yeah.
But again, we're trying to advocate the
sprinklers. And the wave is coming. There's many
jurisdictions across the country right now, today, if you
decide to build a new single-family home, you must put fire
sprinklers in your home. It's code. So we're not blazing a
new trail; it's out there. And we will be proposing something
in the future.
That's basically all I have. I don't want to take
too much of your time.
CHAIRMAN VICTORINO: Why don't we have Alva give
us the Department now, your fire codes or your fire protection
setup, because I think that's one of the big questions we've
all had is the Department has one set of standards and the
Fire Department has another set of standards, and we always
felt that maybe the two should get together and get one set of
standards. But let's listen to the Department's point of view
and your standards.
Go ahead, Alva Nakamura.
MR. NAKAMURA: Mr. Chair, as far as the Water
Department's standards are occurred, as you know, one of the
issues that have always been raised is -- where we had
difficulty in permit applications and approvals -- was when
the Fire Department provided or requested sprinkler systems to
be installed in this home, and when they came to the
Department, we had to require them to upgrade the
infrastructure. This has caused many, many problems in the
past, a lot of concerns.
Obviously, some people, if the requirements are
that they've got to upgrade say from a 4-inch to a 6-inch or
an 8-inch pipeline, a thousand feet long, whatever, the cost
to do some of these things have been just very, very high.
And needless to say, in the past we have got nothing but
complaints from customers saying, well, the Fire Department
says the sprinkle