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HomeMy WebLinkAbout10/05/2011 Regular Council MeetingCOUNCIL MEETING October 5, 2011 The Council Meeting of the Council of the County of Kauai was called to order by Council Chair Furfaro at the Council Chambers, 4396 Rice Street, Suite 201, Lihu`e, Kauai, on Wednesday, October 5, 2011 at 9:25 a.m. The following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang (excused at 5:48 p.m.) Honorable KipuKai Kuali'i Honorable Nadine K. Nakamura Honorable Mel Rapozo Honorable JoAnn A. Yukimura Honorable Jay Furfaro, Council Chair Council Chair Furfaro: Aloha, good morning everyone. I would like to share with you that we are at the next step of the facilities being renewed here at the Historic County Building and I want to make a couple statements so that all members are aware, as well as the audience. The cameras that are now in the council chambers are in sequence with the distribution of sound that goes through the chamber during our meeting process. So all of the councilmembers do have a little reminder under their microphone to please turn off when they are not speaking because an activity at their desk, even the moving of papers, are attuned to the camera to divert directly to where the camera picks the sound up. So the same does apply for you in the audience. The microphone is off during public testimony when no one is there. When you come up to speak, please hit the button that goes to the blue light so the cameras can be in sequence with you as you give testimony, and when you leave, please turn off the mike. As you can see, we have no standing cameras at the railing here from Ho`ike and we also have for the hearing impaired, the little desktop television that reflects the written narrative as the guest speaks. So, that is one of the outstanding features of the newly renovated building. So if I could have all members', as well as the audience's, kokua, I would appreciate it very much and our system should go very, very smoothly. APPROVAL OF AGENDA. Mr. Chang moved to approve the agenda as circulated, seconded by Mr. Rapozo, and unanimously carried. Council Chair Furfaro: Also, a new process here for the group, as you can see the standing podium is now on the opposite side of the room. For those that wish to sign up and testify, so that it's easier for the staff, please sign up on the right side of the room from the council's view, the left side of the room from you in the audience. And also, I would like to now take the next 18 minutes for the purpose of the Consent Calendar, to identify if anyone would like to speak on the six items identified in the Consent Calendar. This is your time to speak. May I see a raise of hands? Come right up. I want to make one announcement. If you're not familiar with this, if you choose to use this time now for the Consent Calendar, it is related to the items that are already in the Consent Calendar, but if you speak now, you will not have the time to address it when the item actually comes up. Okay. So this is for the purpose of those that want to speak and possibly have other appointments. Okay, COUNCIL MEETING - 2 - October 5, 2011 go right ahead. Don't forget to hit the blue light. Push the button until you get the blue light. Thank you very much for the correction. Introduce yourself and you have the floor for three minutes. There being no objections, the rules were suspended. PAMELA LIGHTFOOT BURRELL: Thank you, my name is Pamela Lightfoot Burrell and I am here representing Zero Waste Kauai and Apollo Kauai. And two concerns and items that I'd like to support, of course, is the Zero Waste Resolution and I'll be very ... I can't support it wholeheartedly enough. I think it would set a good standard for our island in moving forward to a sustainable future. And also, I would like to support the amendment for the solar hot water heating. I think you'd do everybody a favor by passing this amendment. Solar hot water is the one thing, if I've been to one meeting with KIUC, I've been to 15 of them, and it is the single most important way to save your customer money and we don't have to import fossil fuel. It will be the single most important thing. I wish they had this law when we were building our house because I would have solar hot water from the beginning and it would be money in the bank and you would be doing everybody a favor by looking to the future in this amendment. And that's really simply all I have to say. Thank you so much for listening. Council Chair Furfaro: Thank you very much. Is there anyone else in the audience that wishes to participate now in the Consent Calendar? Anyone else? No? There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: Okay, for the purposes of this meeting, then I'm looking for... Mr. Rapozo: Mr. Chair, I have a question. Council Chair Furfaro: Yes. Mr. Rapozo: On the 18- minute rule, that's not limited to the Consent Calendar, correct? You can speak on any item on the agenda? Council Chair Furfaro: That's correct. Mr. Rapozo: Okay. CONSENT CALENDAR: Council Chair Furfaro: But for the six items that are on the Consent Calendar, once we receive them we move into the rest of the format of our meeting. I am looking for a motion to receive. C 2011 -276 Communication (08/31/2011) from the Chief of the Wastewater Division, Department of Public Works, transmitting for Council consideration, a resolution authorizing the Mayor or the Director of Finance of the County of Kauai to enter into an intergovernmental agreement with the State of Hawaii, Department of Health, for additional construction funds through a low- interest loan COUNCIL MEETING - 3 - October 5, 2011 from the State Water Pollution Control Revolving Fund for the Waimea Wastewater Treatment Plant Expansion, Phase I, Project No. C150047 -04: Mr. Chang moved to receive C 2011 -276 for the record, seconded by Ms. Yukimura, and unanimously carried. C 2011 -277 Communication (08/31/2011) from the Chief of the Wastewater Division, Department of Public Works, transmitting for Council consideration, a resolution authorizing the Mayor or the Director of Finance of the County of Kauai to enter into an intergovernmental agreement with the State of Hawaii, Department of Health, for construction funding through a low- interest loan from the State Water Pollution Control Revolving Fund from the Wailua Wastewater Treatment Plant Improvements, Phase I, Project No. C150055 -07: Mr. Chang moved to receive C 2011 -277 for the record, seconded by Ms. Yukimura, and unanimously carried. C 2011 -278 Communication (08/31/2011) from the Chief of the Wastewater Division, Department of Public Works, transmitting for Council consideration a resolution authorizing the Mayor or the Director of Finance to enter into an intergovernmental agreement with the State of Hawaii, Department of Health, for construction funding through a low- interest loan from the State Water Pollution Control Revolving Fund for the `Ele`ele Wastewater Treatment Plant Improvements, Project No. C150050 -11: Mr. Chang moved to receive C 2011 -278 for the record, seconded by Ms. Yukimura, and unanimously carried. C 2011 -279 Communication (09/08/2011) from the Chief, Building Division, Department of Public Works, transmitting for Council information, the Monthly Report on Building Permit Information for the month of August 2011, which includes the following: 1) Building Permit Processing Report 2) Building Permit Estimated Value Summary 3) Building Permits Tracking Report 4) Building Permits Status Mr. Chang moved to receive C 2011 -279 for the record, seconded by Ms. Yukimura, and unanimously carried. C 2011 -280 Communication (09/08/2011) from the Environmental Services Management Engineer, Department of Public Works, transmitting for Council consideration, a resolution adopting the principles of Zero Waste as the waste management policy for the County of Kauai: Mr. Chang moved to receive C 2011 -280 for the record, seconded by Ms. Yukimura, and unanimously carried. C 2011 -281 Communication (09/22/2011) from the Fire Chief, transmitting for Council consideration, amendments to the Fire Code of the County of Kauai by adopting the State Fire Code and incorporating by reference the NFPA 1, Uniform Fire Code, 2006 Edition, and providing local amendments: Mr. Chang moved to receive C 2011 -281 for the record, seconded by Ms. Yukimura, and unanimously carried. SPECIAL ORDER OF THE DAY: C 2011 -249 Communication (08/18/2011) from the Chair of the Salary Commission, transmitting for Council consideration, Salary Commission Resolution No. 2011 -1, relating to the salaries of certain officers and employees of the County of Kauai, which was adopted by the Salary Commission at its August 5, 2011 meeting. COUNCIL MEETING - 4 - October 5, 2011 • Salary Commission Resolution No. 2011 -1 (Motion to receive failed by a vote of 3 -3 on September 27, 2011.) Ms. Nakamura moved to receive C 2011 -249 for the record, seconded by Mr. Chang. Council Chair Furfaro: Again in this section, this vote was 3 -3 on the Salary Commission increases. Section 5(e) on page 13 of the Council Rules indicates when a bill is tied, the bill should move to the next scheduled meeting, which is today. Unfortunately since the next scheduled meeting was today, October 5, and the 60 -day action requirement by the Salary Commission ended yesterday, based on the fact that we had a 3 -3 tie and one member was absent, we can only receive this item and we've exceeded any extended time. So the motion is to receive and it was seconded. Any further discussion? Go ahead, Mr. Rapozo. Mr. Rapozo: Mr. Chair, I think it's important to note that the resolution as it was presented and as it was adopted by the Salary Commission became effective yesterday because of the 60 -day clause that should the resolution be adopted and within 60 days if the council doesn't reject or do anything, that in fact the resolution becomes the law. And I just want to note for the record that I did not support that resolution simply because of the March 15 deadline that I believe was clear in the charter and that in fact possibly by the end of this week or early next week I will be filing a civil complaint to have that matter brought before a judge so we can get a legal/judicial review of in fact the charter language because I believe it is that important. The substance of the resolution is definitely important; however, my course of action has nothing to do with the substance. It is specifically tied to the integrity of the charter and I am not satisfied with the way this has gone, so I'm seeking a judicial review, a declaratory judgment of our charier language so that we can find out once and for all in fact if "shall" is shall. So I just want to make that for the record and the public understands that the resolution did become law simply because of the language in the resolution, although I challenge the legality of the resolution. Thank you. Council Chair Furfaro: Any further discussion? Mr. Kuali`i, then Mr. Bynum. Mr. Kuali`i: I, too, have the same concerns as Councilmember Rapozo and we went through all the discussions and we heard from the county's attorney. I am joining Councilmember Rapozo on that request for a declaratory judgment. In addition to the integrity of the charter, I also share the concerns that you expressed, Mr. Chair, with regards to the process. I don't know if usurping the authority is the right way to phrase it, but this action, without the involvement of the various appointing authorities including this council, the prosecutor, the different commissions, and maybe the police chief, the fire chief, in one full swoop the administration with their influence on the salary commission is creating this ... putting the salary caps in place and not respecting the authority of the different appointing authorities. But the primary concern is with the March 15 deadline and "shall" being shall and "on or before" being "on or before" and so just that. I'm not sure what this vote today will indicate because our vote of the 3 -3 to receive having failed was the vote that we did within the 60 -day timeline, so the vote today, I'm not even sure how to vote to express what I already expressed before when it was germane before the 60 -day deadline. Thank you. COUNCIL MEETING - 5 - October 5, 2011 Council Chair Furfaro: Okay, before I recognize Mr. Bynum, let me clarify that. The 60 days ran out yesterday. The vote today is in fact to receive this item. I was one of the three no votes. I plan not to join with you and Mr. Rapozo, but I will express my concerns to the Salary Commission directly that the fact of the matter that it implies it is on or before March 15. It is not implying that it is some time after March 15. It is very clear on or before March 15. But the motion today, so we're clear, the deadline has passed us, the motion has been made to receive, which basically kills any further action on this piece for clarification. Mr. Bynum, you have the floor. Mr. Bynum: This has been a very interesting discussion and I just want to delineate in my mind what the issues are. First, because much of the discussion has been about process issues, but it's clear that this salary resolution has gone into effect. The effect of that is to ensure that department heads and the mayor keep their current salaries until at least 2013. If the resolution would have been rejected by this council, then some department heads and the mayor's salaries would have remained muddled and unclear, and some departments could have done pay increases based on their commission's position. So the salary commission was saying hey, let's make it clear, nobody gets raises in the department heads until at least 2013. And so had I been here last week, I would have voted to receive so the salary thing would go into effect. Now, there have been process issues that came up in the context of this discussion and one has to do with whether it violates the charter or not. I take my legal advice as the charter says, from the county attorney's office, who in this instance gave a three- or four -page written opinion, and I'm very thrilled that that written opinion was released to the public, that we had a discussion about that on the floor because I believe in many instances that's the right thing to do. And I've sat on this council where legal opinions were treated like they were super secret and there are some provisions under the law where the content of those opinions need to be held, but in many instances they can be released, and in this instance they were. Mr. Rapozo has announced that he wants the courts to look at. I think that's fine. That's his right to do that. And it may add to this. There also was, in this process, a suggestion that somehow the salary commission was being an arm of the administration and wasn't making an independent judgment. They were somehow manipulated or abused or used. I don't believe that's the case at all. I have faith in the salary commission and their members. People like Bill Dahle and Trinette Kaui and Charlie King and I don't have the list, but that I know to be independent thinkers who the last thing in the world they would want to be is a rubber stamp for something. You know it's true that the administration brought the proposal to them, just like I've appeared before that commission and given my input or ideas. But I know that they use their own independent judgment to come to those conclusions. So the bottom line of all of this is and I won't go into all the details of this seven -year process... three- or four -year process; I did that in previous meetings. But this salary resolution going into effect assures that none of the department heads get raises until at least 2013. And had this resolution not gone into effect, there are number of positions that could have seen those increases sooner. So the outcome, I think, is a good one. Thank you. COUNCIL MEETING - 6 - October 5, 2011 Council Chair Furfaro: Okay, ladies and gentlemen, this is a moot item. The day came by yesterday; it's done. I do not plan to have a long period of dialogue here and I see Mr. Rapozo has raised his hand again. If he wishes to speak, I will recognize him a second time, but no more than that. This item is moot. Mr. Rapozo: Thank you, Mr. Chair. My only addition was that in the civil action will also be a request for an injunctive relief so that the process will be on hold until the judge rules whether or not the charter language is whatever they decide. I do want to add that I know Mr. Bynum said it's my right to do and it is my right, but it's also my obligation under the oath I took that in fact if I'm not satisfied and I don't have any other recourse, I really don't other than having a judicial review, so I'm taking it as an obligation that I need to. I don't want to do it, but there's no other way, no other opportunity for me to get it done. So I just wanted to add the injunctive relief that will be also in that civil action. Thank you. Ms. Yukimura: Mr. Chair? Council Chair Furfaro: Yes, Vice Chair Yukimura, you wish to be recognized? Ms. Yukimura: Yes, thank you, just a couple sentences here. I think the process has shown us, to my satisfaction anyway, that the salary commission did its work, that the resolution based on advice from the county attorney is legal, and the result is right, in my opinion, that we delay the next increment of executive salaries because we have delayed the pay raises of the rank and file because of our economic conditions. And it's only right that we keep those things in mind in terms of equity and fairness. So there'll be another time to review it in the context of our financial situation, but for now, to me, that's the fair and just thing to do. Thank you. Council Chair Furfaro: Thank you, Mr. Kuali`i, I'll recognize you a second time. Mr. Kuali`i: Mr. Chair, I just want to say that when Councilmembers Bynum and Yukimura bring up points about the salaries of the employees and that the raises should not happen because of the economy and what have you, I believe we all agree on that. So that's not the issue at hand here. The issue is the integrity of the charter and our disagreement with the opinion of the county attorney saying we don't have to follow the March 15 deadline and we don't have to take "on or before" to mean "on or before." Now for all the other reasons that the salaries should be frozen, we agree. We agree with that and that the highest department manager should be treated the same way as our rank and file employees are treated, of course we agree in that. So to keep making those arguments and points as if we didn't all agree on that, I think it doesn't serve where we're at and what we're talking about at this time and I just wanted to make sure that that was very clear. Council Chair Furfaro: We do have a motion to receive and a second. I will take any further narrative I have back to the salary commission because this is really about procedure. It's on or before March 15. It's also very clear that the mayor has the ability to pay less than what is recommended by the salary commission. But it's not clear that the mayor can put in numbers less than what COUNCIL MEETING -.7- October 5, 2011 the salary commission recommended because that's the liability and that's their role. So on that note, I will ask for just verbal commitment to receive as the motion was made. All those in favor signify by saying aye. The motion to receive C 2011 -249 for the record was then put, and unanimously carried. COMMUNICATIONS: C 2011 -256 Communication (08/26/2011) from Councilmember Yukimura, requesting Council approval, to include in the 2012 Hawaii State Association of Counties Legislative Package, a proposal to amend Chapter 196, Hawaii Revised Statutes (HRS), relating to Energy Resources, which requires solar water heating for all new single - family and duplex construction: Mr. Rapozo moved to receive C 2011 -256 for the record, seconded by Mr. Chang. Council Chair Furfaro: There's a motion to receive and a second. For the audience, I want to go over some of our particular rules and parameters here. Because this communication involves the action of another political body and it only covers the communication portion of a statement from the council to HSAC, I will limit the discussion, if there's any further discussion, to six minutes from anyone in the audience. That time occurred during a committee meeting. And I also want to indicate that if they wish the bill to be reconsidered, there are other options for this bill. You can all have the liberty of going directly to our individual legislators. What is in front of us is the council's position to basically latch on or concur with the HSAC Association, that we would like HSAC to introduce this legislation. It does not prevent any member, anybody from soliciting legislators directly. We've had a number of people testify in the past on this bill. The vote came out of committee 0 -4. I have always practiced an attempt to recognize the work that was done by the committee. That's why we have committees. But at this point is there anyone in the audience that would like to offer additional testimony on this item, you will be limited to six minutes. Do we have registered speakers? Mr. Nakamura: We have three registered speakers, Mr. Chair. Council Chair Furfaro: Call them up in the order which they signed up, please. Mr. Nakamura: First registered speaker is Glen Takenouchi, followed by Luke Evslin. There being no objection, the rules were suspended. GLEN TAKENOUCHI, The Gas Company: Good morning, Council Chair Furfaro and Vice Chair Yukimura and Councilmembers. For the record my name is Glen Takenouchi. I'm with The Gas Company. I'm the general manager for Kauai and I'm sure you received our written testimony, so I won't read it at this time. I'll just kind of summarize. And again, we're here to just voice our opinions on this and our opposition to measure C 2011 -256. We feel that the measure threatens to significantly limit consumer choice and access to alternative clean energy resources for the people of Hawaii. If this measure is enacted, then it will create a rooftop monopoly for solar water heating in Kauai and more importantly remove consumer rights in choice, which would negatively impact consumers' access to energy in the unfortunate event of a natural disaster. Thank you for allowing me to testify, appreciate the time. COUNCIL MEETING - 8 - October 5, 2011 Council Chair Furfaro: Ms. Yukimura: Thank you. Next person to testify. We have a question. Council Chair Furfaro: Next person to testify. If you want them to come back up, I will call them up. Next person to testify, please. Mr. Nakamura: Next speaker is Luke Evslin, followed by Del Alexander. LUKE EVSLIN: Hi, my name is Luke Evshn. I'm speaking here for the first time. I do not represent anyone, though I am a member of the younger generation whom everyone loves to speak for. I'm here to say I'm disappointed in the council's position last week to reject Councilwoman Yukimura's proposal. Nearly every councilmember at last week's meeting claimed that we need to get off of oil and be self - sustaining right before saying that they don't want to restrict personal choice. I'm sorry, but you can't have one without the other. The seven of you are up there because the people of Kauai elected you to make the hard decisions for us. Collectively, for a variety of reasons, it's in our best interest to move beyond fossil fuels. However, until we can attach the inherent negative externalities of fossil fuels to their price, it is rarely in our financial short -term interest. A few things stood out to me from last week's presentations. I'm not an accountant or an expert on gas, but as a member of the younger generation, I am pretty proficient with Google. Councilwoman Yukimura claimed that a solar water heater is cheaper over time than the alternatives. And the Gas Company claimed the opposite. The Gas Company used a 4% interest rate on their cost of money calculations, while Councilwoman Yukimura didn't add in the cost of money, which accounted for the huge discrepancy between Councilwoman Yukimura's numbers and their numbers. When questioned on the 4% interest rate, the Gas Company said that they were just following federal guidelines. However, according to the federal Office of Management and Budget, they should be using a more realistic 1.3% interest rate, which would eliminate much of the discrepancy between their numbers. And for those of us who can't afford the upfront cost of solar, the state law still allows tankless water heaters. Further, any projections on the price of fossil fuels are going to be extremely subjective. Propane is a byproduct of natural gas extraction. The U.S. produces 90% of its own natural gas and most of the rest comes from Canada. Despite a record number of new wells drilled every year, Canada's natural gas production is declining at an average rate of 7.5 %. And it is widely expected to disappear completely by 2030. In the U.S. there's been a 200% increase in new wells since 1991. But production has only gone up 15 %. Even though we are drilling more wells, we are extracting less gas, meaning we are working exponentially harder for ever diminishing returns. An obvious conclusion is that the price of propane is not going to be stable for long, which is not the same cheap and secure future that the Gas Company has outlined for us. In the end, though, the financial analyses are irrelevant. You can't put a price on climate stability or the environment. As much as we'd all like to believe otherwise, climate changes are occurring faster than any models have predicted and COUNCIL MEETING - 9 - . October 5, 2011 the effects will be devastating for Kauai and the world. We can slow the trend, but it will take a heroic effort on everyone's part. Mandating solar water heaters on Kauai would just be a drop in a very large bucket. But it is one of a million necessary steps that we all have to take. Each gallon of propane burned creates 12 pounds of carbon dioxide. The average Kauai family would probably use somewhere around 5 gallons of propane per week with even the most efficient tankless propane water heater. That is 720 pounds of carbon emissions per year per family. Add in the liquefaction, gasification, and transportation of the propane to Hawaii, and it amounts to nearly 1,000 pounds of carbon dioxide emissions per tankless propane water heater. Mr. Nakamura: Three minutes, Mr. Chair. Mr. Evslin: The numbers on a traditional gas water heater are 22% more. Council Chair Furfaro: Excuse me, you've reached your first three minutes. You have an additional three minutes and I'll give it to you now. Mr. Evslin: Thank you. There is no reason that we should be emitting that much carbon when alternatives exist. And the law still allows for tankless water heaters. Its intent is to move beyond the inefficient devices that we have gotten used to. To be honest, I just purchased a gas on- demand water heater. As I was shopping around for a photovoltaic system for my home, I asked multiple solar contractors for a quote on a solar water heater. All of them flat out told me that they couldn't compete against a tankless system. So with a limited budget and limited research, I went for the option with the cheaper upfront cost. Now three months later I regret the decision. I didn't do the research that I should have done, I didn't understand the volatile and unpredictable nature of natural gas reserves, and most of all I didn't understand that I would be contributing to the perpetuation of our unsustainable fossil fuel lifestyles. As an individual it can seem hard to make a difference, but as a community we can have a real impact, not only in reducing our collective footprint but by being an example for the rest of the world. And if we forget that, it's game over. Please, for myself, for every other youth on this island, and for our future children, I beg you to make the hard decision, not just this time around, but every time. We won't get a second chance. That's all. Thank you. Council Chair Furfaro: Next registered speaker. Mr. Nakamura: Next registered speaker is Del Alexander, followed by Pat Gegen. DEL ALEXANDER: Good morning. My name is Del Alexander. I'm a plumbing contractor on the island and I do both solar hot water systems and I do install tankless gas water heaters. And I urge you to support removing the variance provision in the state law that allows a new homeowner to secure an exemption from the solar water heating requirement when a homeowner plans to install a tankless gas water heater and one additional gas appliance in a new home. Please support a replacement variance which would be tied to a scientific rationale and an easy measuring stick called lifecycle costing. I understand from the article in the Garden Island that the reason for most of the councilmembers on the Intergovernmental Relations Committee supported the variance in the 9/28 vote was because of high upfront cost for solar hot water heaters and a concern I share COUNCIL MEETING _10- October 5, 2011 especially in these tough economic times. But I am concerned that your opinion on this issue may be based on grossly exaggerated numbers for the average cost of a solar hot water heater. According to the article, a representative of the Gas Company said that a solar water heater could cost $12,936.00 in contrast to a tankless gas water heater systems cost of $9,601. As a licensed solar and plumbing contractor on this island for the past 15 years, I have installed hundreds of solar hot water systems on Kauai. The average cost of the slightly oversized systems that I have installed to date is approximately $6,000. This price may rise a little bit because some of the cost of the panels and equipment are getting a little bit more expensive. But new home builders may be eligible for 30% in federal tax credits or approximately $1600 or $1800 on a new system. My average client with these systems uses their electric backup approximately two times per year, on the average, which cost about $10. Therefore, my estimate for the total cost for the solar hot water heater that I install for the first year is $4,410 with virtually free hot water heating for the next 14 years, per the fixed cost. The Gas Company whose representative presented the cost of a solar water heater to you is not an unbiased party. The Gas Company wants new home builders to continue to buy its petroleum based propane which although it is touted as a renewable resource is refined from oil and must be shipped to this island with diesel. It makes me wonder if the real impetus behind the variance issue is gas company lobbyists. I wonder if a solar professional is also there at your meetings, I believe a more balanced presentation on this important issue would help you make a more informed decision. Council Chair Furfaro: You're at the three - minute mark. You can have your other three minutes. Mr. Alexander: Okay, in the article, Mr. Rapozo expressed concern that if he had a solar hot water system when Iniki struck, that he would have lost his total investment when his roof flew off. To that I'd reply that if Mr. Rapozo had homeowner's insurance, that his policy would have factored this loss into his claim and that he would have been able to install a new solar hot water system. Also, since solar panels and tanks add weight to a roof, in some cases they actually saved the roof when Iniki came. In conclusion, please support removing this variance provision from state law. Do not let this loophole and the fear tactics of the gas company and big oil influence your decision. Instead, let's work towards more creative solutions such as working to expand KIUC's no interest loans for solar installations on new constructions, which we need to work on, and to help Kauai residents kick the oil habit for the majority of hot water generation and save oil -based products for more important needs. Council Chair Furfaro: Thank you. Is that the end of your testimony? Mr. Alexander: Yes, it's Del. Council Chair Furfaro: Del, I'm sorry, Del. Is that the end of your testimony? Mr. Alexander: Yes. Council Chair Furfaro: Thank you. I'll let you have your seat for a moment. Is there anyone that signed up already? COUNCIL MEETING - 11 - October 5, 2011 Mr. Nakamura: Council Chair Furfaro: PAT GEGEN: Council Chair Furfaro: Last registered speaker is Pat Gegen. Pat, may I ask, do you have new testimony to give? I do, sir. Okay, you have the floor. Mr. Gegen: Thank you very much and thank you, Chair and Councilmembers. My name is Pat Gegen for the record. My testimony is for the council to approve the HSAC communication to urge the legislature to follow the intent of Act 204. My previous testimony did talk about HB 1464, which clearly articulates the intent of reducing fossil fuel use, a variance for, it also says, was intended for the consumer, not the developer. I gave you information that shows developers and people who own rental properties are using that variance, not the consumer, which was intended. I also gave you information to state how it is hurting Kauai renters, the KPAA stats that this county asked KPAA to do their biannual report. The low- income are not receiving the benefits of solar hot water. We are forcing, by allowing other options, renters to have to pay more on a month - to -month basis of outgoing income, allowing them not to save to buy their own homes. We are hurting renters by not having solar hot water on their houses. I also gave you information that KIUC Currents talking about the electrical bill, the percentage without solar hot water. Too many of our rentals are still electrical. And just as a side note, my solar hot water cost ... I have a solar system, I have an electric pump as well as the computer inside. I put what they call a kilowatt EZ meter on there for three weeks. It tells you the cost based on today's rate what it cost you to run that appliance. It does cost me $6 a year to circulate water through my solar hot water heater. The only additional cost is if we have a number of weeks where the sun isn't shining, I do kick it on for 20 minutes, take my shower, and it's off. I've heard everybody on this council say that they want Kauai to become a sustainable island. I refer you to the definition of sustainability, which comes out of the Kauai Energy Sustainability Plan, and ask you, does using gas meet the four principles of sustainability? Does it reduce our taking of substances from the earth's crust? The answer is no. Does it reduce the level of toxic chemicals and compounds in the environment? The answer is no. Does it prevent degradation of the earth's natural life - giving systems that provide clean water, air, and food production? The answer is no. Does it empower people to provide for themselves, including everyone at the table with benefits? The answer is no. If you want hot water, you need the gas company. That is not an independent function. The next information that I gave you had to do with the extraction of gas. Right now 90% of the gas, as Mr. Evslin clearly stated, and I loved the statistics that he had talking about the diminishing returns for our investment in trying to get everything, today what they are having to do to extract the gas is they are actually injecting into the earth chemicals, liquid and different solids in order to COUNCIL MEETING -12- October 5, 2011 break up, to fracture the earth's crust to shale in there to get those elements to then come out of the pipe. What that is also doing is also creating troubles for people's drinking water. Mr. Nakamura: Three minutes, Mr. Chair. Council Chair Furfaro: (Inaudible.) Mr. Gegen: Thank you very much, Chair. And so I ask you there were a lot of arguments about personal choice given a week ago. At what time do you restrict a person's personal choice when it is harming other individuals and their ability to try to lead a sustainable and healthy life. Other countries have banned or put moratoriums on hydrofracking. The United States has not. So we are allowing the eastern side of the United States to deal with these water issues as well as down in Texas. I used Wikipedia. I figured that was about as neutral of a source as I could find. It does say the pros and the cons of doing it, but the cons definitely, in my mind, are much more of a concern. So then my next question is does the process of gas extraction meet the definition of sustainability. The answer is no. It is not a sustainable thing. The next thing I'm going to go to is the concerns regarding some of the gas company's cost analysis. First of all the energy cost assumptions are poor at best. Gas is going to continue, as it's harder to extract, to go up. Our electricity cost will probably go up, but I can tell you that KIUC is doing everything they can to at least normalize our cost and hold them stable at this point in time. The amount of electricity used in a solar hot water system with backup, I'd be surprised if the total cost cost me more than $30 a year because of my solar water system. The cost of money calculations. My question to you, they gave you a yearly amount that it cost. Even using their calculations, it's $350 less per year to have a solar hot water system. Where is the cost of that money? Where is the value of investing that? That captures a large amount of what they had figured in. So I put a big concern on the money that they put in there. The other thing is just for analysis, I took $7500, 30 years at 5 %, that's $22 a month. Granted depending on the total amount of your loan, it could go up because of a larger amount of interest, but you're talking between $20 and $35 a month compared to the monthly outlay. On a new home put that into your mortgage. Another $22 a month is not going to break the bank. That's the difference there. My last thought. There was some discussion regarding that we need a national/international movement. The slight reduction that I can make by having solar water on my roof is inconsequential, I believe is what my friend Mr. Carl Imparato said. I'm sorry. I have a big problem with that. If everybody thinks that way, we will never become sustainable. The fact that I rode the bus in today, minor on the carbon footprint. It was one less car on the island. It's one more person riding the bus, supporting the bus, helping pay those county employees, okay. It's less traffic. It is beneficial. So I take great offense to the fact that the activities that I do do not have a bigger and ultimately a cascading effect on what is going to happen. Now my solar hot water heater may not decrease the amount of climate change that is going to occur. Mr. Nakamura: Six minutes, Mr. Chair. Mr. Gegen: But it is in a very minor way. I thank you for this opportunity to testify again. Thank you. COUNCIL MEETING -13- October 5, 2011 Council Chair Furfaro: Anyone else that is signed up? Mr. Nakamura: Last registered speakers are Stephen and Sharry Glass. STEPHEN GLASS: Good morning. This is sort of a collaborative testimony from Sharry and I. So I'll read it and then we'll go from there. We were not able to attend the subcommittee meeting in which the proposed amendment was discussed last week. We have questions concerning the lifecycle cost assessment presented by the Gas Company: (1) The figure for solar includes all installation and equipment costs. Does the figure for the tankless gas heater include the cost and installation of all the needed plumbing and exhaust flue. Does this tankless heater require an electric fan? (2) We read in the Garden Island that a Gas Company representative testified that the lifecycle cost of a solar electric system is $12,936. This inflated figure of almost $5,800 over the actual lifecycle cost has no basis in reality as it includes "cost of money" which is never used in comparisons of this type. In the case of gas heater, after paying the initial cost for the unit and installation, the owner must pay every month for the lifetime of the unit for the cost of fuel to heat water. No inflation was included in the figures for the cost of propane in the next 15 years. It is reasonable to expect that price to continue to increase. In the case of solar, the day the owner moves into their new home they will save a minimum of 30% on their electric bill. KIUC has stated 30 -50% savings, because they are now heating their water with free sunlight. When calculated against the cost of propane needed for the gas tankless system and even including the up to 10% backup fuel expense for the solar system, when sized and oriented correctly, experience shows that there are less than 10% days of insufficient sunlight. Solar is always economically the better choice. After an estimated 4% years, KIUC statistic average for a solar system sized for a family of four, the savings experienced by the owner will equal the initial cost of the solar system and thereafter the family will enjoy 90% plus free hot water for the life of the system. The primary reasons for the passage of Act 204 were the reduction of carbon emissions and resource depletion. The Gas Company lifecycle assessment makes no reference to either of these. There is no technology currently available which comes close to solar in achieving these goals. For years we have been studying and presenting public information about Kaua`i's energy issues and sustainable options. Solar water heating is one of the most successful ways to conserve and utilize renewable sources for energy. Just as we changed our habits to save potable water and we all now use low -flow toilets, we hope that we can strategize together so that one day all Kauai homes and appropriate businesses will have the privilege of heating their water with the sun rather than fossil fuels. All our essential services and occupations including agricultural, safe drinking water, waste removal, recycling, and public transportation require energy. As our leaders who will choose the path to the future for all of us, we sincerely ask that you please inform yourselves as much as possible about our island's energy situation so that you can make the needed wise decisions for our future. Mr. Nakamura: Three minutes, Mr. Chair. Council Chair Furfaro: You had three minutes, but you have another three minutes if you'd like to go forward. Mr. Glass: That's all our testimony has to say, but I would like to say in the matter of choice which came up about personal choice and so, the real choice here is whether we're going to keep dithering around about taking care of the COUNCIL MEETING -14- October 5, 2011 planet and the environment or are we going to start really doing something about it. If we keep caving into business interests only, we're going nowhere and we're hurting ourselves and it's going to cost us all a lot more in the long run. Council Chair Furfaro: Thank you. I'm going to see if there's anyone signed up. Okay, I do want to share this with the audience. SHARRY GLASS: May I speak? Mr. Glass: Can Sharry have a quick say? Council Chair Furfaro: Sharry, you wish to speak now? Ms. Glass: Yes. Council Chair Furfaro: Yes, we'll give you your own six minutes, please start the clock. Ms. Glass: Oh, thank you. I won't need that much time, but first I wanted to say thank you for letting us speak again. And we have no vested interest in any solar industry, any solar company. Our interest is in what's best for Kauai. We've been studying this for years and we are asking most humbly if you will please try to educate yourselves about this complicated issue. Energy is at the basis of our quality of life here and we need to get a handle on it. And we need to make the best choices. Solar heating our water is the best choice. I applaud the gas company for pursuing biofuels, but biofuels are not viable in the long run. They are still polluting. They are a transition fuel and I only hope that their exploration of hydrogen will be successful because that may be an answer down the road. But for now, we need to do what we can. We can't depend on KIUC to have all the answers for us. It has to be a total county effort, a change of policy, a change of vision, and I hope that you'll participate. I wanted to say on a personal note, we replaced our solar hot water system in 2007. It was 22 years old, still functioning and we just wanted to have a higher volume and use more modern technology. Our new unit cost $3800. So that's it. Thank you. Council Chair Furfaro: Thank you very much. Is there anyone else in the audience that is signed up to speak? Okay, thank you. I'm going to call the meeting back to order for a moment here and I want to share some direction in which I'm going. There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: First and foremost, the recommendations that come from the committees are probably most important and that's where all the work should be done. That's where the work should be done. At the last meeting, the committee sent to the full council a bill not to support 0 -4. Vice Chair Yukimura, although was not a member of the committee, I felt that Councilmember Kuali`i gave her an appropriate time and queries about the presentations that were made, even though she was not a member of the committee. Unfortunately Mr. Bynum is a committee member and was not present last week. Within the authority of myself as the chairman, I can allocate five minutes to Mr. Bynum and I will identify anybody that he wishes to call up again to speak as a committee member. Now the choices are very clear here. This came to us 0 -4 as a recommendation not to approve and we have a motion to receive. If there is any change by the majority on COUNCIL MEETING -15- October 5, 2011 that, we will actually have an opportunity to consider sending it back to committee. I am not, as chairman, going to be pounding out the final details in every legislative piece that comes up from the committees. I just did that two weeks ago with Lydgate Park. So on that note, Mr. Bynum, you have... Ms. Yukimura: Question. Council Chair Furfaro: Yes. Ms. Yukimura: Mr. Chair, I hear what you're saying and I understand and support it. So just to clarify, you'll give Councilmember Bynum some time and I guess it is only he who can ask questions of the people who have spoken? Council Chair Furfaro: No, he can identify who he would like to bring up since he wasn't a participant in the committee. If he wants to bring somebody from the gas company, I will recognize that first. If he wants to bring somebody from Apollo Kauai, I will recognize that first. But we spent two and a half hours on this to a 0 -4 vote two weeks ago. Mr. Bynum was absent. I want to recognize his ability to participate, but you have two choices and I will ask the clerk. We have a motion to receive on the table already, which may supersede a motion to reconsider, but I'll get that clarification on a break. So those calls and choices are his as he was not able to participate as a committee member. Ms. Yukimura: So as a further question then, when he calls someone up, will the others of us be able to ask questions? Council Chair Furfaro: The answer is he can ask me to call somebody up, not him, and yes, you will be able to, okay. Ms. Yukimura: Okay. Council Chair Furfaro: But let's remember we spent two and a half hours on this and we came up with a 0 -4 vote and all this is is making a recommendation to HSAC, who then has to have unanimous support to make a recommendation to the legislature, when we all individually have that authority to do that now. Ms. Yukimura: Okay, thank you. Council Chair Furfaro: Now on that note, if you could shut your mike off, JoAnn. Mr. Bynum, I will give you clearly time to participate as a committee member who was absent. Mr. Bynum: Before we go there, I'd like to respond to the parameters you just set. Council Chair Furfaro: You can respond to them or you can accept them. One or the other, go right ahead. Mr. Bynum: Unfortunately I have to object to the parameters that you just set. We've had a routine here for a long time that when people testify, councilmembers are allowed to ask questions. When the Gas Company came up, I raised my hand. I wasn't allowed to ask questions. When Mr. Gegen came up, similar; when Mr. Alexander came up ... I don't know why we would change from this routine which is an open government routine that we've had for many years. I COUNCIL MEETING -16- October 5, 2011 don't want a 5- minute restriction. I don't know if that includes and that's in our rules; I understand that. I don't know if that includes the time I would want to ask clarifying questions from the testifiers. I don't know why... so I guess I reluctantly have to challenge the decision of the chair to change our rules. I think we should be able to have this dialogue. I concur that we should do the work in committee as much as possible, but people are offering testimony. This is my opportunity to respond to the things that happened previously. I don't think we should change our rules and be restricted in this way. So reluctantly I want to challenge the ruling of the chair. Ms. Yukimura: Mr. Chair? Council Chair Furfaro: I won't recognize you right now, Vice Chair. Members, if you're all following that, what I expressed in the 5- minute rule is in our rules. I'm giving Mr. Bynum an opportunity since he was absent to have the first time to express his point of view and be the first one to ask others to come up, okay. I'm very concerned (inaudible) that every time we have an item here, it doesn't come out of committee or we don't recognize the vote that was done in the committee and then it's left for me, okay? So I'm going to see if Mr. Bynum wants to issue a call to challenge the chair on the time that I want to give him. Mr. Bynum. Mr. Bynum: The way you outlined this, I'll get to ask some questions. I'm not clear if I'd be ... but I don't want to set a really dangerous precedent that we're going to change our process that's been here for many years that when people testify councilmembers are allowed to ask questions for clarification or to elicit more. I think that would be a dangerous precedent to set and like I said, reluctantly, I think we should stick with the rules we've had. They've worked well. We went through a whole rule process this year and made some changes. But for the testifiers to come up here and to not be recognized to do what we've done here for many years I think sets a dangerous precedent. So I would encourage members to say let's stick with our normal process or else in the future we won't be able to have this kind of open dialogue. I've never met Mr. Evslin, for instance, and I was compelled by his testimony and if I have questions, I should have the latitude in a public forum and a public process to do that. Council Chair Furfaro: Okay, I think you've jumped to some huge assumptions. Earlier when I said we may call them back, it was the purpose of taking testimony and not repetitive testimony from the past. I'm extending an opportunity for you to have the floor as a committee member and I'm saying as a committee member you may pose questions to any of these people. So let's find ourselves in a position that that opportunity that I tried to extend to Mr. Bynum is off the table. So, members, is there any that has given testimony from the recent revisit of this that you would like to call back for questioning and Mr. Bynum, the floor will recognize you. This was always my intention. You were given five minutes to participate as a committee member who was absent, but we can go to these particular individuals if you would like to have them called back. Mr. Bynum: I'd like to stick with the process question here because I'm not clear if the five minutes included questions. It seems like I'm being granted the five minutes but no one else. Council Chair Furfaro: I'll clarify that, you were granted the five minutes because you were absent as a committee member. I am not a committee member. Councilwoman Yukimura is not a committee member. We graciously extended her COUNCIL MEETING -17- October 5, 2011 even participation in the presentations last week. I understand you now that you choose not to pursue your own five minutes as an absent committee member and I will now ask the clerk. Mr. Clerk, the first member that testified was... Mr. Nakamura: I'm sorry, Mr. Chair. The first testifier was Glen Takenouchi from the Gas Company. Council Chair Furfaro: Mr. Bynum, do you have questions for the Gas Company? Mr. Bynum: In our rules, in our normal process councilmembers would be able to ask questions; they would be able to speak twice for five minutes if they chose to do that. Having this restriction is kind of unprecedented. Council Chair Furfaro: I understand your point. You perceive it as a restriction. I perceive it as giving you an opportunity. Members, I asked Mr. Bynum if he would like to call back anyone from the Gas Company. Is there anyone here that would like to call back someone from the Gas Company? Councilwoman JoAnn Yukimura, who would you like to have? Ms. Yukimura: Mr. Takenouchi. Council Chair Furfaro: Mr. Takenouchi, could you return to the stand? There being no objection, the rules were suspended. Ms. Yukimura: Hi Glen. GLEN TAKENOUCHI, Gas Company: Hi. Ms. Yukimura: Let's see, there was a point made by somebody in the public testimony about the price of installation and the figures that we looked at last time. Maybe if we have it we can put it up on the screen, but... no, that's okay, don't do that. Did the price that you folks used for gas, did that include the cost of installation as well as the hardware itself? Mr. Takenouchi: Mr. Chair, is it possible for me to call up our subject matter expert because he did the presentation on it. I did not. Is that acceptable? Council Chair Furfaro: Yes. We have another chair. Staff members, please. Vice Chair, I'm going to give you the floor. I'm going to step out for a moment. Ms. Yukimura: Did the price that was in your formulas, presented to the council for gas, include the cost of installation? RICHARD DeGARMO, Gas Company: No, the gas tankless did not include the cost of installation. Ms. Yukimura: If you were to include the cost of... Mr. Chang: Rich, excuse me, sorry, can you just, for the record, state your name, please? Ms. Yukimura: Oh, thank you. COUNCIL MEETING -18- October 5, 2011 Mr. DeGarmo: My name is Richard DeGarmo with the Gas Company. Ms. Yukimura: Thank you. So what would be the cost of installation if you were to include that? Mr. DeGarmo: I do not know what the cost of installation would be. Whether it's a new installation or a rehab, the prices would be different. Ms. Yukimura: Can you make those figures available to us? Mr. DeGarmo: The Gas Company does not do any installation, so we'd have to rely on outside installers. Ms. Yukimura: Oh, okay. Well, luckily we have Mr. Alexander here, so we'll ask about that. But the cost of the solar did include the cost of installation. So there was... Mr. DeGarmo: The cost for the solar came from DBEDT. Whether they included the cost on that, I do not know. Ms. Yukimura: Okay, thank you very much. Mr. Bynum: Good morning, Mr. DeGarmo. I want to follow up on that. I wasn't here last week; however, I did see some of the testimony online and then I got these documents that you presented last week. So I went online and looked for Rheem propane tankless water Model H95 and the cost is $1169. That doesn't include shipping and that doesn't include installation, right. Is that product available for purchase on Kauai at that price? Mr. DeGarmo: That I don't know. There's an internet price, though. Mr. Bynum: But you acknowledge that in your cost analysis that you have for solar it includes all of the installation, labor, and plumbing? Mr. DeGarmo: No, that number came from DBEDT as the cost for solar installation. I do not know if DBEDT included installation in that. In all the research information we've done, the cost of solar has a large variation between $4,000 to $12,000, as far as the solar installation. Mr. Bynum: But these tankless water systems require gas to run, right? And they require gas to be plumbed to them, correct? Mr. DeGarmo: Correct. Mr. Bynum: And venting. So depending on their placement, it may require other venting. Is that correct? Mr. DeGarmo: The newer gas appliances such as gas fireplaces and that are such that some require venting and some do not require venting. Mr. Bynum: And they also consume electricity when they're operational? COUNCIL MEETING -19- October 5, 2011 Mr. DeGarmo: Mr. Bynum: Mr. DeGarmo Basically a minor amount for controls. Is there a fan involved? If there's no venting, there's no fan. Mr. Bynum: And so I just was uncomfortable that the cost analysis was just the cost of the unit itself, that it's not clear if it was available on Kauai at that price. I didn't have time to go to Home Depot, but I know if I go online that the shipping may be several hundred dollars and that the cost analysis of solar included all of that installation and labor costs. And that's enough for now. I can say that the solar hot water I have on my home has three panels, many have two. It has 160 gallons of water storage and my cost was $6,000 minus the tax credits. So in my memory, it's been there a while, but it was about $4,000. So I checked and found out I could install the same system for about $6,500 right now. In my system, there's an electric backup, but I have to turn a switch to turn it on, which I've done one time for four hours in a year. So I think my electricity cost is less than $10 or $12 a year for that system. Because what happens is if it takes five or six cloudy days before I notice that the water is lukewarm and then I go switch it on for a couple of hours and turn it off, and I've had to do that once in one year. So when I looked at this cost analysis, it didn't add up for me. Council Chair Furfaro: Excuse me, audience, I'd like to caution you, Mr. Mickens. The mikes are very sensitive. Your sitting in the front row gets picked up over their testimony. Please, if I can revisit the rules again, please, if you have conversation, please take it outside. Mr. Bynum: That's all the questions I have. Mr. DeGarmo: The solar economics we got were from DBEDT for a family of four. Mr. Bynum: Okay, thank you. Council Chair Furfaro: Before you leave, are there any other questions of the Gas Company? Councilwoman Nakamura. Ms. Nakamura: Good morning. One of the testifiers earlier mentioned that the federal government uses the 1.3% in calculating cost of money. And I was wondering if you did use that in both instances, what would the numbers turn out to be? Mr. DeGarmo: I would have to plug it into the spreadsheet. Ms. Nakamura: I would appreciate that information. Mr. DeGarmo: DBEDT also uses 3 %. Ms. Nakamura: DBEDT uses 3% in calculating cost of money? Thank you. Council Chair Furfaro: Council Vice Chair Yukimura. COUNCIL MEETING -20- October 5, 2011 Ms. Yukimura: In calculating the cost of money, if you do that, wouldn't you also calculate the cost of money lost as between the price of gas and the price of solar over the years? Mr. DeGarmo: Could you repeat that? Ms. Yukimura: If you are assessing the cost of money, wouldn't you also assess the cost of money lost, that is after the payback period, after the facility or the system is paid off, it's free for solar. Whereas for gas, I think you can count on an ever increasing price of gas over the long haul. Wouldn't you calculate the cost of that money as well? Mr. DeGarmo: In lifecycle cost analysis, there are multiple ways to do a lifecycle cost analysis, net savings, net benefits. It all depends on what you're actually looking at. If you're looking at operations, it's a little different from building a green building. Ms. Yukimura: So DBEDT in their variance process has a formula for those applying for a variance under lifecycle costing. Do they include the cost of money in that formula? Mr. DeGarmo: I did not see that, no. Ms. Yukimura: They do not include that. Mr. DeGarmo: The time value of money should be included in all lifecycle cost analysis. Ms. Yukimura: But the thing is that most people, especially those that Mr. Sakoda was talking about, they don't have the money anyway, so they are borrowing the money. They're not going to... they're not talking about investing it somewhere else. You're just talking about borrowing it, right? Mr. DeGarmo: The State of Hawaii did an in -depth report on the solar hot water heater going back, in 1994 by Mr. Flachsbart. It's a couple hundred pages long. You may want to look at that as far as how it affects the mortgage rates and the monthly payments for the Hawaii citizens. Ms. Yukimura: What was the bottom line of it? I mean if you're referring to it, are you saying that it had some bit of information that was important to us? Mr. DeGarmo: Well, I'm not sure. This was from 1994 Financial Impacts on Homebuyers on Mandated Energy Efficiency Improvements. It's very in -depth reporting. I can leave this with everybody if you'd like to. Ms. Yukimura: thank you. Council Chair Furfaro Mr. Chang. Mr. Chang: that was 1994? Okay, thank you, we'd like that. That's all I have, Any other questions of the Gas Company? Thank you, Chairman. Richard, did you say that COUNCIL MEETING -21- October 5, 2011 Mr. DeGarmo: Mr. Chang: Correct. Is there not something more recent? Mr. DeGarmo: There's one from 2002 that was done by the U.S. Coastguard and NREL, National Renewable Energy Lab. Basically it sort of disputes the solar fractions for the State of Hawaii, but I can leave that with you as well. Mr. Chang: Because maybe if our staff can find out where you got your information from, maybe we can look now to see if there's something a little bit more updated because 1994 or even 2002... Mr. DeGarmo: Here's 2011 from NREL, Breakeven Cost For Residential. Mr. Chang: Thank you. Thank you, Mr. Chair. Council Chair Furfaro: Any other questions for the Gas Company? If not, thank you, gentlemen. Mr. Bynum, is there anyone that testified earlier today that you would like to call back. Mr. Bynum: Mr. Alexander. Council Chair Furfaro: Mr. Alexander. Mr. Bynum: Just for the sake of disclosure, Mr. Alexander did install the solar water heating system that's on my home. I want to say that. And so good morning. You're a plumber, right? DEL ALEXANDER: Yes, I'm a licensed plumbing contractor. Mr. Bynum: Do you also install gas tankless water heaters? Mr. Alexander: Yes, I've installed lots of tankless gas water heaters. I'm authorized by Rinnai Tankless Gas Water Heater manufacturer to service their equipment and to do the installations. Mr. Bynum: business for you. So whether you install solar or gas, it's still Mr. Alexander: Well, right, I go to a house, I see how it's laid out, I try to do the best job I can to make sure that they can benefit from everything that install for them. So there are some jobs I do tankless gas, but I usually urge them to put in solar because it makes more sense. Mr. Bynum: You may not know the answer to this, but this Rheem unit that I found online for this price, is that available on Kauai at that price? Mr. Alexander: I really don't know because... Mr. Bynum: Okay, that's fine. Can you give us a sense of what the installation costs and what's involved in installing a tankless water heater? COUNCIL MEETING -22- October 5, 2011 Mr. Alexander: Right, well a tankless water heater consumes more energy and so a lot of times even if you're plumbing an existing house, the gas piping is not sized enough. So you have to basically upsize your gas piping to accommodate the demand of these units. So you have extra gas pipe to run; you have to put the heater where it's safe; and a lot of times you have to vent it through the roof or vent it out the side. There are these nice boxes that I just love that you can mount on the outside of the building; you can put this water heater inside; and then there's this electric fan that blows out the air. It's called a power vent unit. And those are very nice and these boxes are a couple hundred bucks and they're real safe and they can be recessed into a wall and I just love those things. And I've installed quite a few of those. And it just depends on where the heater makes sense too because if you have to put the heater like in the garage and your master bathroom is really far away, then you're wasting water also before you can get hot water. So, those are all considerations that I make when I look at a job. Mr. Bynum: Can you give a ballpark figure of what labor and parts on a typical installation would cost? Mr. Alexander: Well, typical installation would be at least $1,000, if not up to $2,000. Mr. Bynum: Because your labor is really cheap, yeah? No, I'm just kidding. Mr. Alexander: Well, some people think so, but most people don't. Mr. Bynum: I think that's the questions I have. I was really concerned that there was no installation cost in there and I still don't know whether these units are available at this price. I know they are online. Mr. Alexander: Well, I have installed tankless gas water heaters in almost every conceivable way, underneath houses, in attics, in garages, externally on outsides of houses. I've done a lot of them. Mr. Bynum: So you engineer each one to be the most efficient and cost effective? Sometimes that requires venting, sometimes not. Mr. Alexander: Mr. Bynum: Mr. Alexander: Mr. Bynum: Council Chair Furfaro: would like to call back? Right, right. Depending on the home, right? Right. Thank you. Thank you. Mr. Bynum, is there anyone else you Mr. Bynum: No. Council Chair Furfaro: On that note, members, Mr. Bynum, I'd like to call the meeting back to order if I can. There being no objections, the meeting was called back to order, and proceeded as follows: COUNCIL MEETING -23- October 5, 2011 Council Chair Furfaro: the floor. First, we're back in session. Mr. Bynum, you have Mr. Bynum: So am I going to have a total of five minutes or are we going to have normal dialogue? Council Chair Furfaro: I'm going to try to make it a practice to follow the rules. Now if you'd like five minutes, I will give you those which exactly are outlined in the rules and then you also have an opportunity to participate in the dialogue. Mr. Bynum: Thank you very much. Council Chair Furfaro: That was always the point, so you can do it now in the closed committee meeting. Mr. Bynum: I want to say that I think a lot of the testimony received today and last week is pretty compelling and I want to focus on a couple of things from my perspective. One is that it seems like the council got to spend a lot of time talking about the lifecycle costs. I think in the next couple of months I'm going to nail that down, that's not going to happen today. But we had some testimony and the analysis that I saw was different than other analyses I've seen. The cost for solar was higher than my own personal experience. But setting that aside, that's almost a side issue for me. The issue is, and a lot of the focus was on choice. I think choice is a very important thing and government should never limit people's choice or freedom unless there's a compelling social reason to do that. And there are hundreds of examples where we have, as a society, agreed that there's a compelling reason to do that. We are all required to wear seatbelts because some people didn't. That's their choice, right? But they get involved in an accident; they have lengthy hospital stays that we all pay for because we're not in a country that has universal healthcare. And we decided that hey, even though that's a right, we're going to restrict it. Hurricane clips on houses, there are many examples. I can't think of a more compelling reason than global warming, sea level rise, our carbon footprint, and sustainability. I think Mr. Gegen's testimony about sustainability, does a gas water heater meet any of the criteria of sustainability and clearly that's not the case. I like the Gas Company a lot. They've been great to me. I have gas water heating and gas clothes drying. But I would never consider doing gas for... But I want to get more specific because I read the bill and I think Mr. Gegen, again, gives very compelling testimony and so I want to turn to that. Sometimes we don't know what the legislative intent was, but the bill couldn't be more clear. It says it's the intent of the legislature that variances provided will rarely, if ever, be exercised or granted. It goes on... so that's pretty clear, it's statement of intent. It also says, there's the potential that this provision may be used to allow developer/builder, the purchaser of a water heating device of a single - family dwelling to circumvent the policy objectives of Act 204. Therefore, the legislature intended for a consumer to have the option to use a gas appliance with the full knowledge that such a system may be costly and less efficient. The legislature intends that if the potential variance applicant is not a party who will ultimately pay for the energy cost consumption, then only paragraphs blah - blah -blah should COUNCIL MEETING -24- October 5, 2011 apply. It couldn't be more clear that if there's a variance, it should be exercised by the consumer who pays the bill. Just a cursory look of the exemptions that have occurred on Kauai, it's clear that people building rental units are exercising this. Developers building homes that will be for sale are using this. And so the intent, the consumer has no choice. I think the KPAA documents that say that people with greater means employ solar energy and people who have lesser means, that may be renters, cannot. So clearly this bill's intent is being ... I talked to the DBEDT person who said, well, that language isn't in the Act, it's only in the legislative intent. And so I know the way DBEDT is they're allowing these variances for developers, rental units, which is clearly, it couldn't be more clear, not the intention of the legislature. And so this really needs to be looked at. I want to go back to the compelling reasons. We live in ... I guess there's some national debate, but not in my mind about whether global warming is occurring, about whether sea level rise is occurring. Where could that be more important than in Hawaii? The other compelling reason is we are all members of a utility coop. Every time I go to an energy meeting and I've been to many of them, they say conservation is the first step, conservation is the biggest bang for the buck. KIUC is saying solar water heating is the biggest conservative thing at the lowest cost that you could possibly do. And we all have to pay for the peak generation period. So if a lot of people exercise this variance and we have to do a greater peak and we all have to pay for another diesel generator to meet that peak demand, that's impacting all of us. So compelling environmental reasons, compelling economic reasons, compelling sustainability reasons would say to me that I would support this wholeheartedly and I am disappointed that we won't have that opportunity and I will exercise my right as a citizen to try to get the legislature ... I might be okay with the variance if the legislative intent was being realized, if the choice really was the consumers. So something's got to get fixed here, in my opinion. But even if we did ... I believe a robust, and we'll see in a few months, a robust cost analysis lifecycle cost will show that solar is a better choice. But even if it isn't, even if it costs a little more, the social needs and the imperative, I would say, for us to actually put our words into actions. Somebody I've thought a lot about lately is my dad. The thing that was a huge takeaway since I've been in politics for a minute is decisions aren't made by what you say, they're shown by what you actually do, right? And so in this instance I want to be on record as saying that the compelling social needs are so great that I'm willing to say limit that choice to some. The last thought is a lot of focus was on if this costs $20 more a month, then maybe somebody, a young family right at the margin won't be able to qualify for a home loan. Now that's a really slim margin but a really serious concern because getting young people and folks into homeownership is really important. And I hope that concern and standard plays out in the future as we address other issues at this council that impact people's ability to buy and support their homes. But I think, my own personal experience, I don't think hot water costs me more than $30 a year at a maximum because only once in the last year did I have to turn on that electric backup and I have 160 gallons of hot water ready to go and so I don't worry about how hot my shower is because I know the sun heated that. So thank you very much. Council Chair Furfaro: Mr. Bynum, I gave you that additional five minutes, which turned out to be about seven, but that was because as a committee member you were absent and you can participate one more time when we go around the table. Members, we are in deliberation and I'm open to any further narrative. Vice Chair Yukimura. COUNCIL MEETING -25- October 5, 2011 Ms. Yukimura: Yes, Mr. Chair, I want to thank everyone who has testified today and in committee and who submitted testimony in writing because this has been a very good discussion and a very important discussion. I do believe, however, that the testimony today really show that the numbers submitted by the Gas Company are not the final say on the actual cost of gas versus solar and I think it was partly my fault that I was not quick enough to identify the flaws in the calculation. But I think today we've seen that (1) the probability of the increase in the price of gas was not included in the cost of tankless gas; (2) the price of the installation was not included in the cost of the gas system, and Mr. Alexander who has years of experience said that runs between $1,000 to $2,000. So those are two very, very big factors. But I think the other issue is... it will become clear as we work on figures and I intend to do that, that the cost of solar is less than or equal to the cost of tankless gas and that's going to change as the cost of gas increases over time. So, we are actually, as was pointed out, excluding choice when we don't require solar as the standard. We're excluding choice for renters and for those who are buying houses after the water system is installed. And I think the testimony about the intention behind the law is very telling and I thank Councilmember Bynum for reading it. There's a very clear intention that the variance for gas not be allowed where the buyer of the home is not making the application. And I think in fact that it might be good for us to refer this matter back to committee for a restructuring of the proposal to simply tie the intention of the law to make ... let me rephrase that. To make the wording of the law reflect the intention of the legislature. And I think we could do that in a way that would be a major restructuring of the bill and might better reflect what members feel comfortable with and also what people in the committee suggested in our last committee meeting that we make sure that the choice is offered to the real buyer. So I'd like to hear some discussion on that and if there's a willingness, then we can maybe refer it back to the IGR committee. Mr. Kuali`i: For me, I think if it's so different, maybe we should just have a new proposal come forward because it does sound really different. And actually the testimony that we heard last week, we did hear ... and on the numbers, I think you can do an analysis of the numbers and you can kind of lean one way or the other. For me part of the original consideration was with the affordability regarding the upfront costs and actually when Councilmember Bynum talked about the bill's intent, we heard a lot of testimony along those lines. And even in the testimony we received in writing from former Senator Hooser, he talks about the Kauai County allowing the excessive abuse of the variance process and that it was only intended for where solar was impractical or otherwise faced with situations in which a solar system was excessively expensive. So if we look at just the upfront cost and if that's the difference between, even after the tax credit for solar, that it's $5,000 and then the cost of the tankless gas water is $2,500, I would say that the homeowner themselves making that decision could decide based on getting their mortgage and whatever, that twice the cost is excessive for them. So the intent of the variance and the fact that it's being abused by developers and landlords who are putting that out as rental units, then that's where the problem is. Because in truth, the legislature already made the compelling decision that based on the concern for the environment and us getting off of fossil fuel that we should eliminate the choice, as a State, of electric water heaters and so that's what they did with the original bill. Now if they eliminated completely tankless gas water heaters, then you no longer have any choice. And are we at that point where maybe we all feel that yeah, it's compelling, but everyone here on the island? That it is so compelling that COUNCIL MEETING -26- October 5, 2011 our citizens have all come forward to us, a thousand of them, and they told us that pass this, eliminate it, push the legislature because we all want to see this happen. But in fact it's the opposite that we sort of heard from more than just the Gas Company, from the Chamber of Commerce, from the Contractors Association, from Kauai developers, from over 100 individuals that submitted testimony. Our testimony in our committee last week was overwhelmingly in opposition and it's probably just because they're not there yet, where they're at the point to give up choice completely. Because that, to me, is what choice is, that you have another option that is not necessarily, it doesn't compare, it's not as good, it's never going to be as sustainable, but it's still not as bad as the other choice that was already eliminated by the legislature. So to me, it's like Councilmember Bynum was saying, he said he might be okay with this if the legislative intent was being realized. So how are we as the County of Kauai not realizing that legislative intent? How are we allowing developers, landlords? Why is our utilization of the variance so much higher than the other counties, right? So I think one of the testifiers last week, too, said, let's look inside and try to resolve where the problem might be within our own county as far as not following the intent of that legislation. Ultimately I would love to see not mandating the elimination of choice, but mandating the education of choice. Because if the choice, and I believe it is, is the correct choice to go with solar, then we should just make sure that every builder, individual, developer is putting all that information out there to the final consumer so that they do have the choice to pick in the long run what is in their own best interest, affordability as well. Even though the $2500 versus $5,000 is that upfront cost, that solar is more clearly, over time, you make your money back and you come out ahead while also doing better for the environment. So clearly mandating all that education up front, mandating that the developers put that choice in the final hands of the ultimate consumer would be the thing to do. But eliminating all choice when we still haven't covered that upfront cost, we haven't made it equal yet, maybe we will one day with property assessed clean energy bill that allows them not to have to come up with that money up front. I know that there are some programs in place where grants and low interest loans are available and we need to, obviously, do more of that so that everyone can have the ability to utilize that. And I think I better stop because I can go all over the place. Thank you, Mr. Chair. Council Chair Furfaro: Mr. Rapozo. Mr. Rapozo: Thank you, Mr. Chair. I think going back to Mr. Imparato's testimony last week regarding the government continually trying to remove choices, you know, I'm a firm believer of that. That in fact if it is in the county's vision to increase solar heating use, then the county should incentivize that and provide an incentive to get people to voluntarily change their behavior. I think that's fine and if the county's willing to do it. If it is such a compelling argument that we need to do it for global warming and sea level rise or whatever it is, then we should be able to put our money where our mouth is and incentivize it and say, hey, if you put a solar heater, we'll give you a $300 or $500 property tax credit. If it's that important, then let's do it. But I think to constantly look at removing the rights of people is a problem. I mean it starts here and then it moves on. I'm not saying that the justification for this bill or this amendment proposal is not there. I think it's there. I just have a real big problem with us, again, stepping in and saying, no, you cannot do this; it doesn't matter if you want. I mean for many people here that have solar heaters and can afford it, maybe it's not a big issue. But I think for those new homeowners that it is the difference between a house and not getting a home. I mean it is. And maybe it's a slim margin as someone had mentioned earlier, but what if you were that person? It's not slim if you're the one COUNCIL MEETING -27- October 5, 2011 that cannot get into a home. It's a big margin if you're the affected one and I think people understand the benefits of solar, and the bill, Act 204, is clear. The legislative intent is clear that developers are not allowed to get the variance. That was the intent. And now like Mr. Kuali`i said if the process for the variance is flawed, let's fix that. But let's not fix it by taking away the rights of others. I mean go find out why they're issuing so many variances. Statewide overall if you look at the solar use from when this bill was enacted till today, the compliance rate or the use of solar has jumped tremendously. So that's a successful bill. But because somebody's tossing out these variances, that needs to be addressed, that needs to be looked at at the State level. I don't believe it requires an amendment to the law because I think the law works. I just cannot support taking away that option, the choice of a homeowner, whether or not they should be able to have gas. I do want to make a clarification. In Mr. Alexander's testimony he said that the paper said that my heater flew off the roof and I lost my investment. I made no reference to the reinvestment at all. I did say that the entire roof went. My own point in that little statement was the fact that I had hot water because I had a gas system. It had nothing to do with my investment on a roof or a solar heater. And I read the article and I didn't see that in there anyway, so. I don't know where he got that from. But my point is this. We give people the choice, we educate them, we let them know. This hearing, this proceeding, the newspaper coverage educates people and let's them know that there is a definite benefit to using solar. We need to convince them of that. I got a call from a solar contractor and I should have asked him to submit his testimony in writing, but he called me after he read the article and said, Mel, to be honest with you, I'm a solar contractor, but if you add up the amount of money that is paid for a lot of people that live in areas that don't have sun all the time, when you add that additional power, whether it's gas or electric, and you add that to the cost of the lifecycle of a solar heating system, it is high. And that's a solar heating contractor that told me this and he's been in business on this island for a long time and he deals with many customers that live in areas that don't have 24 -hour 7 -day a week sun and that needs to be factored in as well. But when you take that right away from them, all of a sudden now you don't have that and that's my problem. So obviously I'm going to be supporting the motion to receive and we'll see what happens. Thank you. Ms. Nakamura: Thank you, Chair. I'm going to be doing a home renovation shortly and I plan to convert my gas to solar water heating, but I have one obstacle and that's my husband who saw the tankless gas and thinks it's a great thing. So we're going to fight that out internally, but one of the things that I think is a very useful tool is this cost analysis and the lifecycle cost comparison. And I believe there are concerns about the presentation of this information, but I think it's a great place to start. Everybody hopes that there are concerns about it, including making sure that the installation costs are identical in both scenarios so that we have a true picture, that we use a reasonable interest rate to show the cost of money to show that there may be some saving benefits and how is that reflected in the numbers. I want to be able to look at objective numbers and I want to thank the Gas Company for presenting this. I've not seen an alternative, however, that shows me that this might be... the numbers may turn out differently. So I think that's the direction we need to move in to get numbers that we can all agree make sense for Kauai including shipping costs and what we can buy on retail here. So I really think that that's an important next step. COUNCIL MEETING -28- October 5, 2011 I think there are a lot of social needs, that things that we do in our daily lives that impact global warming. We very rarely use a clothes dryer. We do not have a dishwasher in our home. We cannot afford a hybrid car. All of these things reduce our carbon outlay. And I think that in government we have to choose in what areas we want to make restrictions and we have not. We've given consumers choice in all of these areas. So it's not real cut and dry for me. I also think that we're the only county where this variance issue is an issue, the Big Island also. And so what are the other counties doing where the variance is not a big issue. I'd be curious to know. I also think that it's important to sit down with the Hawaii Association of Architects, Kauai Chapter, to talk about and to provide really good information so that the consumers they represent are clear about these lifecycle costs and choices. But I think it goes down to the consumer and maybe the architects are the instruments through which we can get that education out, get the information out, and I'm hoping that's the place to start this discussion. From talking to the former president of the Association, he had some ideas of how it could be tightened up and I think that's a great place to begin the discussion. Not necessarily by changing the law, but just to try to fix it at a local level, try to see how we can improve education. You know as simple as developing a form so the consumer has it and checks it off and has that lifecycle cost in front of them that says these are the numbers appropriate for Kauai. I'll be voting for receipt of this. Council Chair Furfaro: Mr. Bynum, I'll recognize you last as I said earlier that you speak first, (inaudible) speak last. Mr. Chang. Mr. Chang: Thank you, Chairman. You know first of all I want to thank Pamela Burrell and Mr. Alexander and Luke Evslin and the Glasses. Last week you folks weren't here, so thank you for your testimony. The testimony in the past was overwhelming that people wanted to have choices. I look at it a couple of ways. There is like the Kauai Business Report and there are different weekly publications that we have on Kauai and sometimes you want to know who's buying land from somebody, who's buying a house or what have you. But when you look at the building permits that people have, I think overwhelmingly in those columns when you see what people are doing, they're putting solar on their roofs. So clearly there are people out there that maybe weighed out the advantages or the disadvantages and every conversation can go one way or the other, but I'm still really believing that there should be a choice. I do believe with this spirited conversation that we've had over the weeks that a lot of people hopefully that are watching or that will be reading will be a little bit more inquisitive. I'm actually pretty shocked that people within or businesses within the community from the solar world are not here. I don't know, maybe business is so good they don't have to be here to pitch their product. But I think with the discussion that we've had over the weeks, hopefully people are watching so they can decide what is best for them and whatnot. But I will say this that there is, as I've always said, very, very tough economic times, and whether you're a young couple or a first -time buyer or what have you, I think it's the decision and people need to educate themselves and to study what may or may not work best for them. So I just need to say, again, thank you because we hear all the different perspectives. So for those of you that weren't able to be here last week, thank you for your testimony. But at this particular point, I still believe that we should give our community choices. We can look at numbers and maybe perhaps sometime in the very near future if this would come back up in some way, shape or form as another agenda item, then maybe we can go toss around and take a more accurate look at numbers, COUNCIL MEETING -29- October 5, 2011 but at this particular time I just believe it is right for us to give the new homebuyer or a potential buyer the option on what they want to do with their money and with their lives. So I am going to be voting to receive this item. Thank you. Mr. Chair, thank you. Council Chair Furfaro: Council Vice Chair Yukimura. Ms. Yukimura: Yes, Chair, I first want to really clear up the misconception that Councilmember Rapozo presented on the solar water heater and possibly the solar water heater contractor as well. In the present law, if the cost of a solar water heater is greater than an alternative technology because they don't' get enough sun and they have to put in more panels, that is clearly addressed by a variance so that the present law and the law that I'm proposing, as amended, would not force anybody to put a solar water heating where it's too expensive because you don't get enough sun. So just so that's clear. And it may be that the solar contractors aren't here because they're small businesses and they don't have a lot of time to pay lobbyists and others. But I also wanted to say for Councilmember Nakamura, we did in our very first meeting pass out lifecycle cost analysis and I think the Gas Company has come in with theirs and so we ... I agree with you that we need to hone in on the numbers and look more closely at them. And DBEDT has a consumer form as well for people applying for variances to figure out the lifecycle costs. But with the gas variance that most people use, you don't have to figure out lifecycle cost as long as you have another gas appliance you can have the variance. So again, I think this discussion has been excellent and I appreciate everybody's input on it. The only part that becomes dangerous is when the facts aren't clear or they're not accurately presented and then the education is a negative education, such as the education that gas is more expensive in a lifecycle cost. But we will address that in the future I think. And I see that this matter will be received, but I will take up IGR Committee Chair Kuali`i's suggestion that we perhaps look at narrowing the variance to reflect the intention of the law. Thank you very much. Council Chair Furfaro: If there's no one else to speak, I'll honor Mr. Bynum a second time and I'll speak last. Mr. Bynum. Mr. Bynum: Just a couple things real quick. I already said about choice. I just ask you to look at examples where we limit choice. We don't allow people to drink and then drive because there's a clear social impact. I also would have loved to have a county ordinance to clarify and say to the planning department to only issue this variance when the decision maker is the consumer. But as the legislature tends to do, they preempted the counties on this. So it's a homerule issue and that's difficult. I also want to just acknowledge that former Senator Hooser who's now at the Office of Environmental Quality Control sent in testimony basically saying the intent was clear and encouraging us to pass this. And then just as a process issue, I'm not going to be voting to receive because I'd like to vote to approve. I probably won't get that opportunity. In our process issues if I would have been quicker maybe I could have made a motion to approve and then we'd be voting on that. But as it is we're voting on a motion to receive. If I had my way, we would not pass that and then we would have a motion to approve, just so people understand the process. Thank you. COUNCIL MEETING -30- October 5, 2011 Council Chair Furfaro: Okay, first of all, I want to say this. There's been dialogue here that deals with, and I think it came up from Councilmember Kuali`i that there can be an item specifically Kauai designed for our needs, our environment and it can come in through the Intergovernmental Relations Committee of which you are chairman. The fact of the matter is, this, as I said earlier, is a proposal that basically goes to HSAC and HSAC then has to have unanimous approval by all four counties before it even gets on the agenda to go to the State Legislature, okay. I also want to say that in our rules some of the courtesies I extended today are exactly that. They are courtesies and part of living aloha and they are all identified in our rules: 60), 6(c), 5(e). We have different committee chairmen that take testimony in different ways. I was attempting to give Mr. Bynum a clear courtesy as a committee member, just as we gave Councilwoman Yukimura clear courtesies when she wasn't a committee member. So let's make sure we understand. We have rules. We follow them. But also we try to live aloha and to be quite frank I think there's another opportunity for us to look at this in a different way through the IGR Committee. So on that note, Mr. Clerk, I would like to have a roll call vote. The motion to receive C 2011 -256 for the record was then put, and carried by the following vote: FOR RECEIPT: Chang, Kuali`i, Nakamura, Rapozo, Furfaro TOTAL — 5, AGAINST RECEIPT: Bynum, Yukimura TOTAL — 2, EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: We're going to take a 10- minute recess for the captioner here before we get into our other business. Thank you. There being no objections, the meeting was recessed at 11:17 a.m. The meeting was called back to order at 11:37 a.m., and proceeded as follows: Council Chair Furfaro: We're back from our caption break and I do want you to know at the prerogative of the chair... excuse me in the audience, I need you to tone down because our microphones are very sensitive and pick up conversation. I'm going to ask that we go to solid waste items first and then I want to go ... I mean I want to go to wastewater first and then I want to go to solid waste. Sorry, I skipped a beat there. Could we read the items associated with wastewater, please. There being no objections, Resolutions Nos. 2011 -70, 2011 -71, 2011 -72 and 2011 -73 were taken out of order. RESOLUTIONS: Resolution No. 2011 -70, RESOLUTION AUTHORIZING THE MAYOR OR THE DIRECTOR OF FINANCE OF THE COUNTY OF KAUAI TO ENTER INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE STATE OF HAWAII, DEPARTMENT OF HEALTH, FOR A LOAN FROM THE STATE WATER POLLUTION CONTROL REVOLVING FUND FOR THE WAIMEA WASTEWATER TREATMENT PLANT EXPANSION, PHASE I, PROJECT NO. C150047 -04: Mr. Rapozo moved to adopt Resolution No. 2011 -70, seconded by Mr. Chang. COUNCIL MEETING -31- October 5, 2011 Council Chair Furfaro: Thank you, on that note of a motion to approve and a second, may I ask Ed, if you could come up and, Mr. Dill, if you'd like join us too? We do have two chairs for you. Please make special note of the blue light on your microphone. By pushing it down, it will activate the microphone. There we go. Mr. Rapozo: Mr. Chair, I have a process question. Council Chair Furfaro: Yes. Mr. Rapozo: Would it be possible to take up the two items at the same time so we can... Council Chair Furfaro: Actually there are three. Mr. Rapozo: I'm sorry, three items for discussion purposes as far as questions. Is that okay? Council Chair Furfaro: That is my intent. Mr. Rapozo: Okay, thank you Council Chair Furfaro: So we're going to talk in terms of Waimea, `Ele`ele and Wailua simultaneously. So if you could give us an overview, Mr. Tschupp, on the projects that these funds are being requested to be loaned to us on. There being no objections, the rules were suspended. EDWARD TSCHUPP, Chief of Wastewater Management Division: Yes, for the record Edward Tschupp, Chief of Wastewater Management Division. I very much appreciate the opportunity to bring these items to council and request your interest in discussing with us these items. These are funding resolutions. Our primary source of funds for our capital improvement programs is the State Revolving Loan Fund and one of the really outstanding features of that program is that presently interest rates are set by the State Health Department at 0.75% interest rate. They are 20 -year funds and that means that the cost of those funds is considerably lower than our bond funds. So there's a preference on part of the agency to utilize that source of funding when they're available. The State doesn't always have funds for everything that we need, but these are projects that have been identified by the State Health Department as being something they will consider funding in this next year. There are three projects. One is the Waimea Project and we do need additional funds for that. We went in with very little contingency and there have been some unanticipated costs. That was kind of a rush into the project to be able to qualify for the federal stimulus funds in the timeframe of the federal stimulus project funding availability and we were successful with that. The Wailua Project is an essentially equipment replacement kind of a project: blowers, the sludge dewatering machine, and the sludge pumps. And it's pretty much our anticipated scheduled maintenance type activities. The third project is for `Ele`ele Plant and we have a package of improvements that were identified in the county's facility plan which completed in 2008. And this batch of improvements in some cases in `Ele`ele, for example, some of the equipment that we're replacing is circa 1970s when the plant was originally built, so it's at the end of its lifecycle. So essentially that's the kind of projects. The `Ele`ele Project was actually bond funded, but with the potentially available SRF funding, we looked at can we get COUNCIL MEETING -32- October 5, 2011 funded through SRF instead of through the bond funding. And similarly our other options for funding would be bond funding for the other projects. That's sort of the overview, big picture. Council Chair Furfaro: Mr. Dill, do you have anything to add to that? LARRY DILL, County Engineer: Larry Dill, County Engineer, the only thing I would add to that is that I give a lot of credit to Ed and his division, as well as our public works fiscal guys in getting these projects approved by the State on the State Revolving Fund Program. There's quite an effort involved in going through all the paperwork process applying to the State. Ed says the State identifies the projects and that's true, but that's only after we've done the legwork to get them on their Intended Use Plan and up to their awareness. So credit to them for taking advantage of these low cost loans. Council Chair Furfaro: Ed, may I echo that. Thank you very much for staying very focused on repair and maintenance items that in fact can qualify for this ... what did you say? 0.75% interest rate loan? Mr. Tschupp: 0.75% interest rate. Council Chair Furfaro: Unbelievable, it's a good time to go shopping for money at that rate. Members, any questions of them? We will take all three items: Resolutions 70, 71, and 72. Any questions? Vice Chair Yukimura. Ms. Yukimura: Yes, thank you for your attention to the fiscal opportunities that the Revolving Fund provides. I think KIUC said that they have access to the cheapest capital in the world, but I think you do. So my question is because I know that you're also working on energy efficiency of your operations, are the designs that are going to be affected in each of these projects the most energy efficient design as possible? Mr. Tschupp: There's always a balance when you're dealing with things like energy efficiency versus operational efficiency. I can't necessarily represent that they are absolutely the most energy efficient in all cases because we're constrained by the facilities that we already have. We are looking at energy very aggressively right now. Our energy service company Chevron Energy Solutions was out last month. They did their initial fieldwork, instrumented a lot of our equipment and we're very eagerly looking forward to their recommendations, which may ripple into some of these projects. For example, they may turn around... one of the things they've suggested to us is that we may be able to combine some of our solids handling processes between Wailua Plant and Lihu`e Plant. And if that ends up being the case, if that really pencils out, that would change the sludge drying equipment, that we would actually end up going forth with in the Wailua Project. So we're trying to learn quite a bit right now about energy efficiency and we've got the consultant resources that are really helping. That is not a complete piece of work yet. Ms. Yukimura: Yeah, but they are aware of what you're doing here in case they see any opportunities for interfacing with this project. Mr. Tschupp: Absolutely. Ms. Yukimura: Okay and you said the loan is for 20 years? COUNCIL MEETING -33- October 5, 2011 Mr. Tschupp: They are 20 -year loan programs. Ms. Yukimura: Okay and so will the sewer fund be able to support repayments on the loan without subsidies from the general fund? Mr. Tschupp: That's the intent. All of these projects were identified through our long -term financial planning process because that was integral, developed from the facility plan efforts that the county underwent a few years ago. Ms. Yukimura: Okay, very good. And what benefits will it accrue from the proposed projects? Maybe you covered that, but you said in Waimea because of your small contingency they'll give you some support and leeway? Mr. Tschupp: Yes. Ms. Yukimura: Okay. And in the Wailua Treatment, which is a very old plant, you're upgrading some of the operations there? Mr. Tschupp: Yes, as indicated with `Ele`ele and Wailua, these are primarily equipment replacement type projects. So we're not expanding capacity at those two plants. It's more blowers need to be replaced periodically, so we are absolutely looking for the lowest lifecycle type cost on the replacement blowers and it's time. Ms. Yukimura: Okay and you're not by any chance addressing the pump station by... Mr. Tschupp: Coco Palms? Ms. Yukimura: Yeah, is that part of it? Mr. Tschupp: That's not in either of these projects. Actually we issued and have received, although I haven't seen them yet, consultant services proposals to start that project moving forward coming out of the funding that this council authorized with the current fiscal year budget. So we've received resumes for some consultants to assist us with that. Ms. Yukimura: Okay, but that's separate? Mr. Tschupp: That's a separate project. Ms. Yukimura: Okay, great, thank you very much. Council Chair Furfaro: Any further questions here? Ed, I have one just for the purposes of understanding your operation. When we review these budget items for future R &M and so forth, when we make reference to putting a contingency in the project, what do you typically put in there? 5 %? 10 %? Mr. Tschupp: Actually, there's a couple of ways to look at that. In the case of the SRF Program, one of the things that they kind of build in, I believe it's 10% as what they would allow as a contingency under contingency cost for the SRF Program. So that's kind of a generally established guideline. COUNCIL MEETING -34- October 5, 2011 Council Chair Furfaro: So when we're putting out the cost of these projects, you're building in a 10% contingency and they're pretty much recognizing the 10% wiggle room. Mr. Tschupp: Yeah, to a certain extent. You know, until it is bid, we don't actually know how much it's going to cost. Council Chair Furfaro: Understood. Mr. Tschupp: And so in the case of for example, I recall `Ele`ele, the engineer's cost estimate in the design process, engineer's opinion of probable cost is like right around $3 million. Then we also need some construction management support and a little bit of a contingency. So that's why we're asking for the $3.6 million. Council Chair Furfaro: Understood, okay. I just wanted to know what they allow you, what do you typically practice and what do they allow you when we're using those funds and it seems it's 10 %. Mr. Tschupp: Yeah, I think for contingency purposes it's about 10% and the CM, they also then typically allow like at 10% for construction management. Council Chair Furfaro: Thank you. Are there any more questions of these gentlemen? Ms. Nakamura: I have a question. Council Chair Furfaro: Yes, go right ahead, Councilwoman. Ms. Nakamura: Good morning, just one quick question that the repayment of the three loans is through the Sewer Enterprise Fund? Mr. Tschupp: That's correct. Ms. Nakamura: Thank you. Council Chair Furfaro: Any more questions? Gentlemen, if not, I'm going to excuse you so we can take some testimony from those in the audience before we call the meeting back to order. Mr. Dill: Thank you. Council Chair Furfaro: Thank you very much. Is there anyone in the audience that would like to give testimony. It can be on all of these resolutions I've identified, any one of them, 2011 -70, 2011 -71, and 2011 -72. Mr. Mickens, come right up. GLENN MICKENS: Thank you, Jay, for the record Glenn Mickens. I just have a question here on this floor amendment. It says "Whereas the State of Hawai`i's diversion goal for each county was 50% in 2000, this is going to be..." Council Chair Furfaro: That's a different bill. Mr. Mickens: This isn't the solid waste? COUNCIL MEETING -35- October 5, 2011 Council Chair Furfaro: up next. Mr. Mickens: No, we're on the wastewater. Solid waste is coming Amend Resolution 2011 -73. Isn't 73 one of these? Council Chair Furfaro: Yeah, and we're dealing with 71, 72 and 70. Mr. Mickens: Council Chair Furfaro: wastewater. Mr. Mickens Oh, oh, okay. 73 is solid waste. This particular one is Oh, okay. Thank you, later. Council Chair Furfaro: Okay, thank you. Is there anyone that would want to speak on the resolutions in front of us dealing with wastewater? If not, okay, I'll call the meeting back to order. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Bynum: I just want to acknowledge Ed and Larry. Since Ed's been our wastewater person, I've learned more about wastewater than I ever wanted to know. These resolutions are on top of several we've received from public works that demonstrate that they're really looking out for our fiscal issues and taking initiatives to see that any county funds are expended to the best possible ability, so thank you very much guys. Council Chair Furfaro: Anyone else? Seeing no one else. Ladies and gentlemen, this will be a roll call vote and we'll do it on each resolution, Mr. Clerk. The motion to adopt Resolution 2011 -70 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. Resolution No. 2011 -71, RESOLUTION AUTHORIZING THE MAYOR OR THE DIRECTOR OF FINANCE OF THE COUNTY OF KAUAI TO ENTER INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE STATE OF HAWAII, DEPARTMENT OF HEALTH, FOR A LOAN FROM THE STATE WATER POLLUTION CONTROL REVOLVING FUND FOR THE WAILUA WASTEWATER TREATMENT PLANT IMPROVEMENTS, PHASE I, PROJECT NO. C150055 -07: Mr. Rapozo moved to adopt Resolution No. 2011 -71, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuah'i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. COUNCIL MEETING -36- October 5, 2011 Resolution No. 2011 -72, RESOLUTION AUTHORIZING THE MAYOR OR THE DIRECTOR OF FINANCE OF THE COUNTY OF KAUAI TO ENTER INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE STATE OF HAWAII, DEPARTMENT OF HEALTH, FOR A LOAN FROM THE STATE WATER POLLUTION CONTROL REVOLVING FUND FOR THE `ELE`ELE WASTEWATER TREATMENT PLANT IMPROVEMENTS, PROJECT NO. C150050 -11: Mr. Bynum moved to adopt Resolution No. 2011 -72, seconded by Mr. Kuali`i, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: Thank you, Mr. Clerk. Can we go to Resolution No. 2011 -73. I think this is the one coming up, Mr. Mickens, that you wanted to give testimony on. Can we read the item and after we read the item, I'm allowing Council Vice Chair Yukimura to make a short presentation. Resolution No. 2011 -73, RESOLUTION TO ADOPT THE PRINCIPLES OF ZERO WASTE AS THE WASTE MANAGEMENT POLICY FOR THE COUNTY OF KAUAI Council Chair Furfaro: Thank you very much. Council Vice Chair, you requested a presentation? Ms. Yukimura: Yes, Mr. Chair, but because I think there might be people who want to testify before lunch, I think I'll wait till the end, if that's all right? Council Chair Furfaro: Well, you had told me it was about a 15- minute presentation. Ms. Yukimura: It's probably shorter than that. Council Chair Furfaro: We have 35 minutes. We'll take testimony first rather than have people testify after they've seen your presentation. Ms. Yukimura: Council Chair Furfaro: Mr. Rapozo: All right, I'll do it quickly. Okay. I'm going to make a motion. Council Chair Furfaro: Let's do a motion. May I have one? Mr. Rapozo moved to adopt Resolution 2011 -73, seconded by Ms. Yukimura. Council Chair Furfaro: Thank you. On a motion and the second, I'm going to turn the floor over to Vice Chair Yukimura for a 10- to 15- minute presentation. Ms. Yukimura: Thank you, Mr. Chair. We're today considering a Zero Waste Resolution which would set policy for our county and if we can get the lights, please? COUNCIL MEETING -37- October 5, 2011 Council Chair Furfaro: We have some handouts from you first on the PowerPoint? Is that what we have? Ms. Yukimura: Yes. Council Chair Furfaro: Okay, thank you. Ms. Yukimura: So this Zero Waste Resolution will set a policy for Kauai County that will take us from trash to cash and from problem to possibility. So I want to start to get a perspective by beginning with a trivia question, thanks to John Harder: What is the largest human made structure in the world today? Any guesses? If you guessed that it's a landfill, you're right. The Fresh Kills Landfill on Staten Island in New York is made up of 2200 acres equivalent to 3,000 football fields. It rises 400 to 500 feet, which is the height of a 40- to 50 -story building. It can be seen clearly from outer space and is bigger than all the pyramids in Egypt combined. That's quite a testament, isn't it, to humanity that our largest human made structure is a landfill full of our waste. But the problem isn't only what goes into the landfill, it's also about what doesn't get there. The next three photos show carcasses of albatross chicks found on a Pacific island dead because their bellies were filled with plastic fed to them by their parents who were merely following the lifecycle of bringing food from the ocean. Except now, the food is a non- biodegradable plastic that's infiltrating the food chain. So what are we doing to our planet, our island, ourselves, our children. The good news is that there's another way of dealing with our stuff other than the existing way of take, make, buy, use, throw away and the other way is called Zero Waste. Zero Waste is a better way. It's a cheaper way for the taxpayer, householder, and business person. It's a much more life sustaining way. It promotes jobs and economic activity, which is what we need most of all today, and it creates local products, which keeps money circulating in the local economy. There are several communities leading the way. The City of San Francisco today diverts and keeps more than 70% of its waste from landfills and incinerators. In contrast, we here on Kauai divert I think 23% of our waste and our goal is 35 %. So the basic premise and distinction of Zero Waste is that waste is not waste. Waste is a resource, a whole new way of thinking. And because if waste is a resource, the worst place for it is the landfill. The following quote illustrates this, "If the volume of paper that was burned or buried in the United States in 2005 would have been collected and recycled instead, China would have paid U.S. businesses $2 billion." Just think of how this would have helped our balance of trade with China. Can you hear the cash register? In a Zero Waste system, recycled paper equals money. It's a resource that can generate income. Right now we are pouring this resource, this potential commodity, into the Kekaha Landfill at a tremendous taxpayer cost. Paper makes up 35% of the waste stream that goes into the landfill today. If we could effectively recycle paper, we would reduce the waste stream by one - third. This is another waste product, eco compost. Right now on Kauai our sewage sludge and some green waste and most food waste goes into the Kekaha Landfill. On Maui instead of allocating taxpayer moneys to landfill their sludge and greenwaste, the county is facilitating a private business which takes the county's waste, i.e., its sludge and greenwaste, and turns it into a high quality commercial soil conditioner that is bought by landscapers, resorts, farmers, and gardeners. It's a business that grosses $2.2 million per year and hires 14 people. It's unlikely that this would have happened without government initiative and support, and I'm COUNCIL MEETING -38- October 5, 2011 proud to say John Harder, who helped this system start on Maui, is here in the room today. It also is unlikely to have happened without entrepreneurial innovation and excellence. This is an outdoor bench, another waste product, made of recycled plastic. It's immune to termites, withstands all kinds of weather, easy to maintain. There's a bench in the rotunda outside the mayor's office that is of plastic here across the street. Plastics make up 14% to 15% of our waste stream that's going into Kekaha Landfill. But we need a collection system if it's to be used as a resource and this is another example of a beautiful waste product. Glass makes up 3% to 5% of our waste stream into Kekaha Landfill, about 10 tons a year. Look at this beautiful recycled glass product. Other examples of products from waste: biodiesel from used cooking oil and grease residue; low -grade paper products from recycled paper like paper towels, toilet paper, egg cartons; recycled construction materials through deconstruction; boutique products like designer bags from windsurf sails and designer dresses from old kimonos. Look at the solid waste we could recycle and divert. Paper 35% of our waste stream, plastic 14, you add it all up, it totals to 78 %. So why are we going for 35? Becoming a Zero Waste community will require a system change. We must change a multitude of habits at home, business, at church, everywhere we go. Our existing systems support waste and discourage recycling. An example is your neighbor can put out 10 cans of trash in front of their home the night before county trash pick -up. You could put out one, but you and your neighbor pay the same amount for trash pick -up. You have to take your recycled goods to a recycling center and trash is picked up at your home. You see how we're incentivizing the wrong thing. We have to change that. Oh, our habits at home, I forgot. Let's see, excuse me a sec. I forgot my prop. Our old way is buy, use, throw away. The new way is reduce, don't create in the first place. So take your bag to the store and you don't create plastic bag rubbish. Reuse, find another home for those things that no longer are wanted or needed. This blouse that I'm wearing, I got at a thrift store. Recycle, recycle paper and turn it into a useful product. The Zero Waste system requires new laws, pay -as -you- throw, a new collection system. We have state -of -the -art examples we can follow and new infrastructure, a materials recovery facility, a municipal composting facility, a center for hard to recycle materials that handles hazardous waste and electronic waste, and something that handles construction debris. A system change is the county's kuleana. No individual or organization is going to be able to change the system by their efforts alone. But together we can and the county can lead the way to system change. The first step is set a policy direction and that's the Zero Waste Resolution we're talking about today. We're coming to an end of this. Zero Waste is a smart economic development policy. It's a smart environmental protection policy and it's a smart fiscal policy. We all have to be involved and that's the end. Thank you very much. COUNCIL MEETING -39- October 5, 2011 Council Chair Furfaro: Thank you, Vice Chair Yukimura, and a pretty impressive display of all your ukana in the rubbish container. I am going to allow testimony from the public since we made that presentation. So I'm going to suspend the rules and do we have a sign -up list here? Could you read the names, Pua, please? There being no objections, the rules were suspended. WILMA "PUA" AKIONA, Council Services Assistant: Yes, Mr. Chair, first we have John Harder, followed by Pat Gegen. JOHN HARDER: Aloha. My name is John Harder. I'm a member of Zero Waste Kauai. Zero Waste Kauai strongly supports the proposed resolution and is ready to assist the county in any way it can in transitioning to a new and more sustainable waste management system. Over the past few months we've bombarded all of you with a wealth of material on Zero Waste Management and its benefits to communities. So I won't take up your time by repeating all the information you previously received. However, if you have any questions about any of the information that we sent out earlier or regarding any other aspects of Zero Waste Management, I'd be glad to try to answer them. Council Chair Furfaro: John, I think it would be wise also, are you still under contract with the county? Mr. Harder: Yes. Council Chair Furfaro: Could you please disclose that? Mr. Harder: Yes, although I'm wearing my Zero Waste hat today and I do try to separate the two activities as much as I can, I am also working as a part -time advisor /analyst under contract with the county department of public works. Council Chair Furfaro: Thank you very much. I hope you understand I needed to make sure that we disclose that. Okay, we have questions for Mr. Harder? Councilwoman Nakamura. Ms. Nakamura: Hi, good morning. I wanted to find out, have you reviewed the Integrated Solid Waste Management Plan for the County of Kauai? Mr. Harder: Pretty much completely, yes. Ms. Nakamura: Do you believe the Zero Waste philosophy is incorporated into the plan? Mr. Harder: The elements of a Zero Waste Management System are pretty much all included within the plan. A philosophy is kind of a different animal there. I don't know if there's any philosophical intent in the plan, but when the plan was under review, I guess it was two years ago, a year ago, Zero Waste Kauai pretty much in -depth reviewed it and had come to the conclusion that the basic elements that we need to implement to achieve the Zero Waste System were in the plan. COUNCIL MEETING -40- October 5, 2011 Ms. Nakamura: Do you believe that this plan should be amended in any way to incorporate Zero Waste philosophies in the goals and actions and strategies that are outlined in this plan? Mr. Harder: I'm not one for doing a whole lot of planning or at least the kind of philosophical planning. My feeling is if you've got a strategy and a system that you want to carry out, just start doing it. It think that it may be advantageous over time for the department to look at amending the plan internally to reflect the new direction, but I don't think that should be a requirement or anything that holds back moving ahead in changing the system because I don't think those Plan amendments would be necessary to actually transition to a Zero Waste System. Ms. Nakamura: So you're saying if we implement the plan as it is, we're achieving Zero Waste goals? Mr. Harder: I'm saying that the elements are in there to implement. There are differences in ... I guess it's called the philosophy between Zero Waste and what the plan calls for. But a lot of those philosophical differences can be carried out internally. I don't think that this is ... part of this is just this resolution right here. It's a statement of intent and I think that if the department of public works takes that statement, since they're generating the proposal in the beginning, takes that statement seriously, they can implement the Zero Waste strategy using the plan as a guideline. My thing is that there are things that need to be done today and transitioning to Zero Waste will probably take 8 to 10 years. We don't need to hold up doing the things we're doing today to come up with guidance for the next 10 years. Let's do them both at the same time. Ms. Nakamura: Thank you. Council Chair Furfaro: Mr. Rapozo. Mr. Rapozo: Thank you. I guess I understand that the resolution was proposed by the administration. Isn't that what I heard you say earlier? Mr. Harder: The resolution is proposed by the administration with input from Zero Waste Kauai. Mr. Rapozo: Okay, because I think what I heard you say was we need to pass the resolution but necessarily amend the Integrated Solid Waste Management Plan. I think the problem with that is that the resolution is simply a resolution. It has no effect whatsoever, no power of law. It's basically the council's policy statement saying we think this is the way we should move. But if it's not followed up by an amendment or implementation of the plan, then it's just a resolution that sounds good. When people read about it tomorrow and watch the TV, they'll say yeah. But if there's no supporting action, which means I think what Councilmember Nakamura talked about is, the Integrated Solid Waste Management Plan is the guidebook. This is the plan for the administration to move forward. So simply passing the resolution, which I support, but simply passing the resolution, it absolutely does nothing to move the plan forward. I think it would entail the administration to... and I'm hoping we're going to hear from them as well. You're not here representing administration, right? No. COUNCIL MEETING -41- October 5, 2011 Mr. Rapozo: Okay. And I'd be curious to hear from them if in fact they're in a position that they can implement the Zero Waste philosophy. Mr. Harder: I understand your concerns, but I think my concern is more that ... I guess I'm a little unsure of what Councilmember Nakamura is talking about or what you're talking about in terms of amending the plan. That plan there is not a plan. It's an amendment to an original plan. That amendment, that update took five years to put together. My opinion is, my feeling is I don't wait another five years to develop another plan to tell us to do what we already know we want to do. So if we did the two things concurrently that might be fine. But I think part of the administration's intent will be evident when they testify. Part of the administration's intent is becoming more evident in the fact that they're moving ahead on some specific diversion projects that are part of the plan or some that were even identified after the plan was written that weren't in the plan, but fast tracking some additional diversion options. So while I would not say there is no need for long -term planning, I would not want to hold up implementation of short -term diversion actions while we're putting together a whole new revised plan. Mr. Rapozo: ' I guess for me, because we've had the original plan, we've had the amendments. Those amendments don't come cheap. They're quite expensive. They're very, very, very expensive and I guess the frustration is if we're going to be spending the money on these plans and then hitting another tangent and say, well, we know we have this plan and we may have, spent a million dollars on that plan, but we want to do a resolution and go this route. I think it all has to be like you say, congruent. It has to be done together because if not, we're just wasting our money on Integrated Solid Waste Management Plans and updates if in fact we're not willing to move forward with those plans. So I think the plan is vital as is the resolution. Don't get me wrong. I'm not speaking in opposition to the resolution. And maybe we should have started with the administration as far as the testimony as opposed to a member from the public. But I guess I'll wait and hold my comments until after we question the administration. Thank you, Mr. Harder, I appreciate your support. Council Chair Furfaro: I'm going to go to Vice Chair Yukimura and then to Councilmember Kuali`i for questions for Mr. Harder. (Inaudible.) Vice Chair Yukimura. Ms. Yukimura: Thank you, it's a follow -up to Councilmember Nakamura's question because I don't believe she's thinking about an extensive consultant led plan update. But I think we are interested as a body and you are talking to a different body than you talked to two years ago, so that's something to keep in mind. We're looking if we pass this resolution that sets the direction of a Zero Waste policy, how we can make the plan congruent with that policy. So as I recall Zero Waste Kauai greatly questioned the target diversion rate in the plan, the 35% target rate and so that's one way, I see, that the plan is inconsistent with a Zero Waste goal; we could reach higher. So my question is, are there ways like that that we could amend the plan to bring more congruency if we pass the Zero Waste policy? Mr. Harder: There are and some of those issues I will leave to the administration, to Larry and Allison, to discuss. And some of them have to do with some of the things I'm doing right now. I think that if we talk about revising the implementation plan, that one section, because most of the elements are in the Integrated Solid Waste Management Plan with things that may need to be revised COUNCIL MEETING -42- October 5, 2011 or updated, some of the implementation schedules. I would think that that would be something that might be something that the department could undertake internally, but you'd have to get that... Ms. Yukimura: We're not talking to the department right now, John. We're talking to Zero Waste Kauai. Mr. Harder: Well, I'm talking about wanting to get this done without spending money, without going out through a procurement process and this has nothing to do with the department. It has to do with me wanting to see some movement. Zero Waste Kauai has been pushing for some movement for some time now. And now we're starting to see some movement and I think that I would hesitate to do anything that would say, oh, we've got to step back a second; we can't spend any more money on this until we come up with a plan. Now... Ms. Yukimura: That's not what we're saying. We're saying if we just can have the administration change some of the policies without a consultant but that would be pursuant to a resolution that hopefully will pass today to make Zero Waste a more integrated part of our policy and our actions. That's what we're asking. We're asking this to Zero Waste Kauai. We're saying, Do you have any objections to that? I hear your fears about delay, but we're not talking about delay. We're asking for substantive input and maybe you need to go back and work with Zero Waste Kauai on whatever they would suggest in terms of some changes that would make the plan congruent with Zero Waste policy. Mr. Harder: As long as that does not hold back or delay any approval that needs to go through council of some specific activities that the county, the administration will be proposing I'm sure in the next few months. I would hate to see some positive actions held up and say, well, we want to know what the big picture is; what the plan is. There are a lot of smaller short -term actions that can be undertaken and I would hate to see those things delayed or held up until a total package can be put together. So as long as the council understands that part of moving ahead is trying to conserve what remaining space we have left in Kekaha and trying to set the groundwork for productive diversion operations and businesses in the future. And again, I'm having a hard time kind of separating my two positions because of my work with the county has been advocating Zero Waste. So it's hard to say whether this is my personal policy or administration's direction. But what I'm saying is that as long as there was an understanding that the department could move ahead or the island in general could move ahead in certain directions as the ultimate planning goals and directions are being developed. Council Chair Furfaro: On that note, I'm going to ask the Vice Chair if she would yield the floor for the moment so I can go to other members. Ms. Yukimura: I'm done, thank you. Council Chair Furfaro: You're done? Ms. Yukimura: Sure. Council Chair Furfaro: Councilmember KipuKai, you have the floor, sir. COUNCIL MEETING -43- October 5, 2011 Mr. Kuali`i: Aloha, John, mahalo for being here. I'll ask the easy question first. So when I look at the resolution, you stated that Zero Waste Kauai helped draft the resolution or provided input. The second to the last whereas talks about "adopting a goal of zero waste disposal and pursuing Zero Waste Principles," and Zero Waste Principles is in caps, "consistent with and an explicit validation of Kauai County's commitment to islandwide sustainability." So Zero Waste Principles is kind of referenced in a few places within the resolution. What are they? There are three of them? There are five of them? There are 10 of them? Why weren't they just listed in the resolution as well? Or is it so much that... Mr. Harder: I think it's essentially it's so much that it would be difficult to put in a resolution. I've tried to provide all of you with a number of documents. What we called a Zero Waste Resource Guide, I think all of you have a copy of it. It's 20 pages, something like that. Mr. Kuali`i: Because it probably would be helpful to have this summarized. Mr. Harder: It's essentially ... JoAnn's kind of gone over some of it. The first thing is while Zero Waste Management adheres to the same essential hierarchy that our current solid waste management system adheres to, that is reduce, reuse, recycle, Zero Waste puts a much stronger emphasis on reduce. That is we understand that if we don't have to deal with it at all, it's going to be a whole lot cheaper and a whole lot beneficial in terms of conserving resources, conserving energy, those kinds of things. So it's not necessarily a difference in principle but a difference in emphasis. A second principle, again, that Councilmember Yukimura talked about in her presentation, is the issue of waste as a resource. Looking at each element within the waste stream as a specific material and managing it in the best way according to its properties. Not looking at trash as a mixed conglomerate that we have to do something with, but looking at paper as a resource, as something that has value. A lot of the materials that we throw out every day are easily marketable. Currently the City & County of Honolulu has finally gotten their curbside recycling program going. It's gone through pilots and it's gone through phases and now it's pretty much running full (inaudible). They're a bigger island. They have much larger volumes. But it's essentially looking at the same kinds of things that we would do here on Kauai. They have efficiencies in economies of scale, but the recycler that takes the City & County's mixed curbside recyclables, same thing we're talking about, the same thing we collected in our pilot, is paying the City & County $65 a ton for that material. That is all mixed recyclables which they sort and market. Again, our operating cost per ton would be higher because we'll have smaller facilities here, and we've got a little more shipping. But I think looking at materials, what we call waste as a resource is another element there. And then the overriding thing and the whole thing going back to, I guess, sustainability has to do with the bigger picture of sustainability, which looks at both consumption and local reuse, building using local products, building a local economy, and that would go into some of the initial things like using our organic waste for compost, those kinds of things. The final element in Zero Waste... COUNCIL MEETING -44- October 5, 2011 Council Chair Furfaro: John, on that note, we're coming up on a minute before we have to break our staff. I want to make a couple of announcements and you will be able to come back, but I want to give that last minute to Councilmember Kuali`i. For those of you in the audience, I should give you a little overview of the rest of our schedule. At 1:30 p.m. we have five public hearing agenda items that will be triggered. And then after that this council will be moving into executive session on some items dealing with a conference call with legal advice. We have set that up for 2:15 p.m. When we are complete with that, I would hope it would be about 2:30 p.m., we will continue this agenda item at 2:30 p.m. and then in fact I would say that we would get to our second reading bills at 3 p.m. So I wanted to share that information with the group in the audience that may break for lunch that we will come back for our public hearings, then a conference call for some executive session material and we'll probably be back with you, John, at 2:30 p.m., if you understand how important it is to at least guesstimate some of our times, and we'll get to the second reading bills around 3 o'clock. I'm going to turn over the last minute to Councilmember Kuali`i, and thank you, sir, for allowing me to make some housekeeping announcements. Mr. Kuali`i: Mr. Chair, I think my question is pretty involved, so I'd like to ask it after lunch. Council Chair Furfaro: We can do that. We can give you the floor when we bring this item back. Members, are there any one - minute questions in the audience for Mr. Harder? If not, I'm going to ask that we recess for lunch. We'll be back here for public hearing at 1:30 p.m. There being no objections, the meeting was recessed at 12:30 p.m. The meeting was called back to order at 1:14 p.m., and proceeded as follows: Council Chair Furfaro: We are anticipating some items dealing with claims and we would like to have you read the suggestion to move into executive session on all items. There being no objections, the rules were suspended. ALFRED B. CASTILLO, JR., County Attorney: On all items? Council Chair Furfaro: Yes. Mr. Castillo: Okay, Council Chair, Councilmembers, good afternoon, Al Castillo, county attorney. EXECUTIVE SESSION: ES -498 Pursuant to Hawaii Revised Statutes Sections 92 -4, 92- 5(a)(4) and (8), and Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an executive session to provide Council with a briefing regarding legal issues related to the implementation of Kauai County Charter Section 3.19 and Bill No. 2410. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. COUNCIL MEETING -45- October 5, 2011 ES -501 Pursuant to HRS sections 92 -4, 92- 5(a)(4), and section 3.07(e) of the Kauai County Charter, the Office of the County Attorney, on behalf of the Council, requests an executive session with the Council to provide the Council with a briefing on the retention of special counsel to represent the County of Kauai in County of Kauai vs. Michael Guard Sheehan, et al., Civil No. 11 -1 -0098 (Condemnation), Fifth Circuit Court, and related matters. The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. ES -502 Pursuant to Haw. Rev. Stat. § §92 -4 and 92- 5(a)(4) and (8); and Kauai County Charter §3.07(E), the purpose of this executive session is to consult with the Council's legal counsel to receive legal updates, overviews, and recommendations for purposes of obtaining Council approval of proposed settlement of a workers' compensation claim. This deliberation and/or decision making involves matters that require the consideration of information that must be kept confidential as, inter alia, it concerns significant privacy interests. The significant privacy interests relate to a medical history, diagnosis, condition, treatment, or evaluation, and which, pursuant to state or federal law, including Health Insurance Portability and Accountability Act, are protected from disclosure. ES -503 Pursuant to Haw. Rev. Stat. § §92 -4 and 92- 5(a)(4) and (8); and Kauai County Charter §3.07(E), the purpose of this executive session is to consult with the Council's legal counsel to receive legal updates, overviews, and recommendations for purposes of obtaining Council approval of proposed settlement of a workers' compensation claim. This deliberation and/or decision making involves matters that require the consideration of information that must be kept confidential as, inter alia, it concerns significant privacy interests. The significant privacy interests relate to a medical history, diagnosis, condition, treatment, or evaluation, and which, pursuant to state or federal law, including Health Insurance Portability and Accountability Act, are protected from disclosure. ES -504 Pursuant to Haw. Rev. Stat. § §92 -4 and 92- 5(a)(4) and (8); and Kauai County Charter §3.07(E), the purpose of this executive session is to consult with the Council's legal counsel to receive legal updates, overviews, and recommendations for purposes of obtaining Council approval of proposed settlement of a workers' compensation claim. This deliberation and/or decision making involves matters that require the consideration of information that must be kept confidential as, inter alia, it concerns significant privacy interests. The significant privacy interests relate to a medical history, diagnosis, condition, treatment, or evaluation, and which, pursuant to state or federal law, including Health Insurance Portability and Accountability Act, are protected from disclosure. ES -505 Pursuant to Haw. Rev. Stat. § §92 -4 and 92- 5(a)(4) and (8); and Kauai County Charter §3.07(E), the purpose of this executive session is to consult with the Council's legal counsel to receive legal updates, overviews, and recommendations for purposes of obtaining Council approval of proposed settlement of a workers' compensation claim. This deliberation and/or decision making involves matters that require the consideration of information that must be kept confidential as, inter alia, it concerns significant privacy interests. The significant privacy interests relate to a medical history, diagnosis, condition, treatment, or evaluation, and which, pursuant to state or federal law, including Health Insurance Portability and Accountability Act, are protected from disclosure. There being no objections, the meeting was called back to order, and proceeded as follows: COUNCIL MEETING -46- October 5, 2011 Mr. Bynum moved to convene in executive session, seconded by Mr. Chang. Council Chair Furfaro: Any discussion? I'm going to ask for a roll call vote on this. I have made that statement clear that that is my intention. So please call the members out alphabetically on a roll call motion. The motion to convene in executive session was then put, and carried by the following vote: FOR CONVENING IN EXECUTIVE SESSION: Bynum, Chang, TOTAL — 7, Kuah'i, Nakamura, Rapozo, Yukimura, Furfaro AGAINST CONVENING IN EXECUTIVE SESSION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: Thank you and we're going to go into executive session. There being no objections, the meeting was recessed at 1:19 p.m. The meeting was called back to order at 3:29 p.m., and proceeded as follows: Council Chair Furfaro: Okay, we are back from our lunch break, our public testimony and then our executive session, and John, Mr. Harder, if I could ask you to come back up to the mike? You had it at the time and I believe in the order of things I was going to give the floor to Councilmember KipuKai. Mr. KipuKai? There being no objections, the rules were suspended. Mr. Kuali`i: Thank you, Mr. Chair. Aloha, again, John, mahalo. When we last took a break I was asking you about the Zero Waste Principles and actually I had a chance to look at the resolution more closely and I did find that it was in the third to the last whereas that it talks about Zero Waste Principles promote the highest and best use of materials to eliminate waste and pollution... Council Chair Furfaro: Excuse me, we do not have a picture yet, we only have narrative on the ADA screen. We have the picture now? Will somebody from the audience just acknowledge? Thank you. Sorry, KipuKai, you have the floor. Mr. Kuali`i: No problem. So that "Zero Waste Principles promote the highest and best use of materials to eliminate waste and pollution by emphasizing a closed -loop system of production and consumption moving in logical increments towards the goal of Zero Waste through the core principles of and then they list three principles, one being "improving `downstream' reuse /recycle of end -of- life products and materials to ensure their highest and best use." The second bullet is "pursuing upstream, redesign strategies to reduce the volume and toxicity of discarded products and materials and promote low - impact or reduce consumption lifestyles." And then the third and final bullet is "fostering and supporting the use of discarded products and materials to stimulate and drive local economic and workforce development." So that seems like you were saying, you had provided so much materials, but that in itself encapsulates the huge amount of work that defines the direction of Zero Waste. In the name itself, we're talking about this target rate growth that Councilmember Yukimura mentioned and said that San Francisco was 77% and then Kauai was 23 %, and then the goal that was showing was 35% and why is that so low. Wouldn't you agree that in the name COUNCIL MEETING -47- October 5, 2011 itself, Zero Waste, you're saying that the ultimate goal is 100% because if the waste was zero, then you would have 100% diversion goal or diversion rate or target rate growth? So is that what you're pushing for and how do we get there? You talked about increments. I think the resolution says something about increments, but I think the real information that'll help us, help me understand it better and figure out how we get there is how other people have done it over what period of time at what cost and working with the community how, the partners or whatever? And that if we're at 23% and in the end in a perfect world be it 100 %, what are the steps along the way as far as benchmarks, measures, targets and are we able to do that, to take it a step at a time? Council Chair Furfaro: Excuse me, John, before you answer that, I need to turn the meeting over to Vice Chair Yukimura, as I have a personnel matter that I'm handling at this time. So Vice Chair. The Chair was noted as excused at 3:34 p.m. Mr. Kuali`i: And that was probably a huge question, but you can just answer one piece of it or say what you want to say. Mr. Harder: Councilman, that is a pretty long and involved question. I've got a couple things before I start. First, I guess I was going to mention because I noted that also that the general Zero Waste philosophy policies are in the resolution, as you pointed out. Secondly, I was finding myself having a bit of difficulty keeping my two hats separate, so I want to kind of make it clear that my testimony this morning or early afternoon is really basically my own opinions and not that of Zero Waste or the county, in testifying from my expertise and knowledge and not basically speaking for one or the other entities. Thirdly, just like the Chairman, I have a prior engagement that I have to go to and just to answer your question, I think, would be a whole workshop in itself. So, what I'd like to do is turn over the microphone to Pat Gegen of Zero Waste Kauai. He can answer the questions from the standpoint of Zero Waste Kauai and if we need to get a larger discussion as to things like timeframes, costs, those kinds of things, maybe there's some time when I can come back and just for some kind of informative workshop kind of session get into some of those more detailed matters. And then finally, your first comment and I think I've explained this before regarding Zero Waste, Zero Waste or Zero Waste Management really does not mean attaining zero waste. What it means is being on the path to zero waste, being committed to zero waste. I think the best that any community has ever even envisioned is in the range of 90 %, where that remaining 10% is essentially residuals that you can't do anything else with. But the true philosophy of Zero Waste is a commitment to being on the path, a commitment to the principles. I don't think any of us imagine that in our lifetime we're going to do away with waste completely, just as no business does away with waste at all or you know, not just trash, but wasted energy, wasted motion, wasted time, those kinds of things. At this time, if it's appropriate, can I turn it over to Pat? Or do you want to pick up the next speaker? Ms. Yukimura: Well, first I'm going to ask if there are any questions for you, John Harder, that can be answered quickly and you can leave, and then if it's okay with Councilmember Kuali`i, we'll ask Mr. Gegen to come up and answer the question that's been posed by the councilman. COUNCIL MEETING -48- October 5, 2011 Mr. Kuali`i: Ms. Yukimura: I did have one specific short one that he... For Mr. Harder? Mr. Kuali`i: So you had said earlier about Waste Management and reduce, reuse, recycle and that emphasis or most of the focus was on the reduce piece. Mr. Harder: Yeah. Mr. Kuali`i: When I read the resolution and it talks about downstream, it talks about reuse and recycle, and then when it talks about upstream, it talks about redesign strategies. Am I to understand that as the types of products that we consume so it's kind of more on like the manufacturing side and as consumers we should educate ourselves to buy things that to begin with don't create a whole lot of waste? Mr. Harder: Yes. Mr. Kuali`i: So I'd be interested in learning more about how we do that from here because it's corporations, except for educating just the consumers and ourselves as consumers as well as to influence what gets produced. Mr. Harder: Just a quick answer. There are more and more communities across the country that are adopting the principles of Zero Waste as Zero Waste Management Strategy. I would say hundreds, though I don't have any real accurate count, more than ... the last I heard was about five years ago when there was some 50 or so. I would say there's more than a hundred. As those communities get together, they can form coalitions and even states are adopting Zero Waste policies and practices. So to go beyond our small local community, it's banding with other like - minded communities to foster that. Ms. Yukimura: Thank you. Mr. Kuali`i: Thank you so much. Ms. Yukimura: Any other questions from councilmembers since John is going to be leaving? I have one. If the council should decide to include in its Zero Waste Resolution a higher target than one that's in our plan, what is the recommendation you would make personally? Mr. Harder: Are you talking about an ultimate goal or a 10 -year goal or a 5 -year goal... Ms. Yukimura: (Inaudible.) Mr. Harder: Personally I think that within an 8- to 10 -year timeframe we could reach 70 %. Ms. Yukimura: Okay, thank you very much. All right if... Mr. Rapozo: Madam Chair? Ms. Yukimura: Yes? COUNCIL MEETING -49- October 5, 2011 Mr. Rapozo: Is it okay to get the administration to come up before we bring up Mr. Gegen? I mean I have not heard a thing... Ms. Yukimura: As long as it's okay with Mr. Kuah'i because he was in midstream asking his questions. Mr. Rapozo: I think I'd like to hear from them. PAT GEGEN: I have to leave at 4 o'clock. Ms. Yukimura: Okay. Mr. Rapozo: Well, I don't know. Where did this come from? Did the resolution come from Zero Waste or did it come from the administration? LARRY DILL, County Engineer: Administration. Mr. Rapozo: Okay, then it would be appropriate to get administration's point of view and their position. And this is just in my opinion, it seems awkward that we have... and this is me, I mean no disrespect to Zero Waste Kauai. If it's an administrative resolution, I'd like to hear from the administration and then we can get the... Ms. Yukimura: Let's have the administration and at 3:55 p.m. I'm going to ask that Mr. Gegen be able to speak since he has to leave at 4 p.m. Mr. Chang: Madam Chair, would that leave Mr. Gegen with enough time, just five minutes? He might need more. Ms. Yukimura: Well, I'm sorry, that's all we can... and maybe he can add 4 or 5... Mr. Dill: I (inaudible) to go first, if Mr. Gegen wants to. Mr. Rapozo: That's fine. I mean I'm just—if Mr. Gegen has to go, then I don't have a problem. But we've spent quite a bit of time on this resolution and we haven't heard a thing from the administration. So that's fine with me, Madam Chair, if you want to bring up Mr. Gegen. That's fine. I just... Ms. Yukimura: I'm going to let the administration speak for five minutes just to give us an overview and then I'll call Mr. Gegen. ALLISON FRALEY, Solid Waste Program Development Coordinator: Okay, hi, JoAnn covered the basics o£.. Ms. Yukimura: Can you state your name please? Ms. Fraley: Oh, I'm sorry, Allison Fraley for the record. I'm the Solid Waste Program Coordinator for the County of Kauai. So JoAnn, you covered the basics of Zero Waste, so I won't spend a lot of time talking about that. But I did want to say that the recently adopted Integrated Solid Waste Management Plan does contain the essential elements, policies, and programs that are necessary to implement this Zero Waste concept and that many of the components that are planned are planned for the resource recovery park. And examples of the policy COUNCIL MEETING -50- October 5, 2011 issues that are noted in the plan and that we're working on now are developing that pay -as- you -throw system, at least planning that process, expanding business recycling, initiating construction demolition diversion, and working with our legislature to do producer responsibility like what's going on with the E -Waste recycling. Ms. Yukimura: Can everybody hear? ( ?): Not that well. Ms. Yukimura: Okay, so is there a way to up the level... volume? Ms. Fraley: I can just speak more into the mike. Mr. Nakamura: Yes, that's good. Ms. Fraley: Okay, all right. Ms. Yukimura: (Inaudible.) Ms. Fraley: Okay, thank you. Ms. Yukimura: So just speak a little louder. Ms. Fraley: So Zero Waste Management Plan is consistent with the county policies towards sustainability, job creation and reducing our dependence on natural resources. So our office, the recycling offices would be pleased to support the objectives of the Zero Waste Resolution. We are dedicated to reduce, reuse, recycle, maximize waste diversion, and so that's our position on it. Ms. Yukimura: Okay, questions in the five minutes, if you have? Mr. Rapozo: I have just two questions. Ms. Yukimura: Yes, Councilmember Rapozo. Mr. Rapozo: Thank you. First question is in the resolution we're showing a diversion rate of .. and I'm not sure I'm looking at an amendment, but 35% by 2013. Is that realistic? Is that practical? Ms. Fraley: Yes, yes. Mr. Rapozo: Okay, then the other question is will any of these Zero Waste policies or principles increase the cost of our taxpayers? Ms. Fraley: No, because I mean the plan has increased cost, implementing our Integrated Solid Waste Management Plan does require us to put money into the diversion program. So we planned to do that. So there would be no change as a result of this resolution if that's what you're asking. Mr. Rapozo: There will be no changes in addition to what's in that Solid Waste Management... COUNCIL MEETING -51- October 5, 2011 Mr. Dill: Well, excuse me, Councilmember, Larry Dill, County Engineer, for the record. What Allison is saying is correct. I look at these things more from a lifecycle cost scenario rather than immediate implementation because implementation of some of these things may incur some costs up front. Mr. Rapozo: And that's what I need to know because you see, the taxpayer today doesn't have a lifecycle to recover. They don't. Right now it's the worst economic time in this island's history... memory I should say. So I don't want to see any more added cost. I mean although Zero Waste is a good thing and I'm supportive, but I want to make sure we know going in, if we're moving into that direction, what are the immediate costs and, again, over and above what's in the plan because the plan was already adopted. Ms. Fraley: Right. Mr. Dill: So we will look at, each time we come to you to address a component of the plan because it has several components that work together, it's an integrated plan, we will address that with you and we'll bring to you the costs and we'll certainly look at the cost benefit for each of these situations. So we will know up front clearly of any cost... Mr. Rapozo: Do you have some idea today of what they are? Mr. Dill: No, we didn't come prepared to address the specifics with you, I guess. Mr. Rapozo: Okay, but are you prepared to in a couple of weeks? Mr. Dill: Not in a couple of weeks, no. Mr. Rapozo: Okay, thank you. Ms. Yukimura: Other questions of Mr. Dill? (Inaudible) go ahead, Councilmember Bynum. Mr. Bynum: I understand this is the administration's resolution. I've been involved in this discussion and debate for a long time and I voted on the Integrated Solid Waste Management Plan and my concern has always been about implementation and timeline. I know we're behind the timeline. I thought it was a very ambitious program and I've said repeatedly on this floor, meeting these goals and expediting them is the primary challenge for the department. And so I want to ask about this amendment, if I can. You've seen this amendment that's been circulated? Mr. Dill: I have. Mr. Bynum: And you know, I was fine with the amendment saying that you would integrate Zero Waste concepts into the implementation of our current plan, but this amendment calls on the administration to revise the current plan, which is very different. When I voted for that plan, I didn't think every element was something we should implement right away. But I knew that in our normal process it's going to require multiple times of you coming to council for money bills or budget or whatever. So I'm interested in whether... and what I heard Mr. Harder saying, in essence, was the elements of Zero Waste are in the plan, the resolution was intended to say you'll incorporate these in the implementation. And COUNCIL MEETING -52- October 5, 2011 so I think I would share his concern about if we go back and revise the plan that it's going to drain energy from implementing those steps. And so I want to know your position on that or if you have any concerns about this amendment because to me it changes it completely. We were saying, use these concepts in the implementation. This amendment says, bring us a revised plan. And I would think that would take consultants, more money, energy, time, I don't know. Mr. Dill: Yes, we're here today presenting this resolution to you and request its approval as is. Regarding amendment of the plan, first of all it's our opinion that it's not necessary because the plan and the resolution are in agreement. They're consistent, they're congruent, all those words. To do an amendment of the plan, since it's been adopted by the county and in accordance with the Hawaii Revised Statutes, according to the Hawaii Revised Statutes, we'd have to reconvene the Solid Waste Advisory Committee or convene a new one. And they would have to review it to determine whether or not the amendment was substantial or not. And if this is not a substantial amendment, then I believe that we can go ahead and just adopt it at the county level without much further process. However, likely the plan was created by our consultant under contract with the county, we would have to get the consultant to amend the plan because that is the nature of the plan. It's a document prepared for us by a consultant. If the amendments were deemed to be substantial by the Solid Waste Advisory Committee, I'm not even sure what the process is after that for us to get that approved and taken care of. So I just want to say it's not a simple thing to say we want to amend the Integrated Solid Waste Management Plan and again I'll repeat, I think I understand the desire and the motivation for doing that by folks here today, but in my opinion and our opinion it's not really necessary because they really are consistent. Mr. Bynum: Okay, just one other question. I know this is a resolution brought to us by the administration, but you worked on this in consultation with the Zero Waste group. Is that correct? Mr. Dill: Absolutely. Mr. Bynum: Okay, thank you. Ms. Yukimura: Mr. Chair, I had agreed. You're back now so I want to give the gavel back. The Chair was noted as present at 3:49 p.m. Council Chair Furfaro: I have no problem. Members are there any more questions for Mr. Dill and Allison? Ms. Yukimura: Can we hold off on those questions? Council Chair Furfaro: Is it 3:50 p.m. already? Ms. Yukimura: Yes. Council Chair Furfaro: Excuse us, we're going to bring up other people to testify. I've gotten my note from the Vice Chair which indicates that she had agreed to have the administration there till 3:50 p.m. and then Pat, and Pat, I will give you six minutes uninterrupted, but I will leave it at six minutes. COUNCIL MEETING -53- October 5, 2011 PAT GEGEN: That's fine. Thank you very much, Chair and Councilmembers for this opportunity to testify on passing the Zero Waste Resolution that is in front of you today. For the record my name is Pat Gegen. The process of drafting a resolution has been an interesting process over the months. As Councilmember Bynum said we were involved in the original drafting. Mr. Chang had some input. We also were talking with the administration as well as the public works department. So it really has been a group effort and ultimately what we wanted to look for was full coherence and everybody getting behind this so it could be as effective as possible. One of the first items we found out during this process that the term "zero waste" is not completely understood, which is something, Councilmember Kuali`i, you had asked about. In an effort to clarify and create a better understanding of the term, I'll read a commonly used definition and that is that zero waste is a different way of thinking about those items which we've used and no longer want. It is a commitment to take the necessary steps along a path that will ultimately manage our waste much more economically and with far more local benefits. So, again, it's a path, it's a process, it's continually looking at the resources that we have that we're putting in our landfill today and say, is that the most economical use. We're still putting green waste in there; we're still putting aluminum cans; we're still putting glass; we're still putting metals in there. That is not the most economical place. It's not good for the `aina. There are some huge long -term costs to continue doing that. We may not incur costs today, but when we come to build a landfill twice as big as we have to because we haven't adopted zero waste principles, that cost is going to be tremendous for the people following us. Zero waste really is not a way of thinking that is foreign or new, especially to our host culture here in Hawaii. I think all of us are very familiar with the ahupua`a system and how basically the resources and the watershed are used. They managed their waste; they managed everything. It's a self - sustaining system. That's really what we're looking about is trying to get more to that. So what does this mean? On Kauai too much stuff is going into the landfill. In Councilmember Yukimura's previous analysis of the resources going into landfills, it's possible to divert up to 78 %. What a great goal. These are resources that could have another life either through reuse, composting, recycling instead of filling up our `aina. The Zero Waste Resolution I see as a verbal commitment by the county to the principles of the three Rs: reducing, reusing, recycling. And of course as we said reducing is something that we'd really like to focus on. To me this resolution is similar to the Complete Streets Resolution or the Safe Routes to School Resolution. These are resolutions that now will guide your principles, your voting and how you're going forward. To me the resolution is a big step in helping set a philosophy and a guideline going forward. The resolution also asks the community to get behind and start embracing these principles. You know what? The county is behind. Connie Clausen, John, they had to leave because they're planning the next Locavore event that's happening at Gaylord's. They're having a planning meeting to make sure it's a zero waste event. The county has been making some strides and has helped the general populous in the direction of zero waste through the recycling office, the passing out of composting machines to county citizens, the pilot program on curbside recycling, the passing of the plastic bag reduction act, and the ongoing discussions regarding building at the new landfill, trying to fast track a MRF if we can, get some of that stuff up and going. COUNCIL MEETING -54- October 5, 2011 Zero waste principles do incorporate and exemplify the definition of sustainability, which I referenced in earlier testimony today. To become more sustainable what we really need to do is we need all of our citizens to ask ourselves whether the item is truly needed when we're purchasing it; whether, when we are done using it, we or someone else can reuse it; can we recycle it; can we compost it or does it really need to be sent to the landfill. That's really what zero waste is about. It's looking at all those items. We talk about additional costs on our taxpayers, myself included. Well, I had a recent tour over on Maui. They have over 550 jobs that are dedicated to the diversion of items from the landfill. Now 550 jobs, maybe our island has 100. I'm just throwing that number out there. It would be great to have those other 400 people out there earning a good living, paying taxes, helping our economy become more self - sustaining by spending that money here rather than continuing to spend money elsewhere. At this point in time I do commend the council and the administration presenting this resolution today and I hope that it is a solid majority to vote for passing it. It is a sustainable resolution. It is looking towards the future. It's looking for what we can do today to make life better for our ancestors yet to come. So with that I thank you. Council Chair Furfaro: Thank you. Are there any questions of Mr. Gegen? Go right ahead, Councilmember. Ms. Nakamura: Good afternoon, Pat. Mr. Gegen: Hello. Ms. Nakamura: I wanted to ask you a question about the Integrated Solid Waste Management Plan and in your opinion, do you believe that zero waste philosophies, actions and strategies have been adequately incorporated into this plan that was adopted by the county? Mr. Gegen: What I can say is I'm not intimately familiar with the Integrated Solid Waste Management Plan. I know it does call for a MRF, which we're behind schedule in getting something like that done. That is a core facility in a zero waste plan. I know it talks about composting in the future and taking a look at getting the green composting potentially wet composting, like foodstuffs, involved in that. That's an intimate and essential part of the zero waste plan. It talks about going towards curbside recycling. That is necessary, but not until you have the facility to economically deal with it. You can't get the horse before the cart. We've got to do that. So when I look at the major elements at least of the capital expenditures, I would say yes, it integrates major zero waste components that are necessary. If you're asking about the philosophy again, I would have to read through it in much greater detail. Ms. Nakamura: In terms of the implementation measures in the plan and the priorities, you're pretty comfortable with the consistency with zero waste. COUNCIL MEETING -55- October 5, 2011 Mr. Gegen: As I understand it, yes. I mean we have trucks now that aren't being used because we're using the automated. They could be used for green waste curbside pick -up. So we have things that could happen like that and I believe that's what's called for in the plan, but at the present we don't seem to be following that in the strict timeline. Ms. Nakamura: So you're comfortable then that whatever is in this plan is pretty much consistent with the direction of zero waste and that we really don't need to amend this then. Mr. Gegen: I don't think we need to amend it. We need to continue watching it and as those items come up for a vote for funding and stuff like that, I think that's the appropriate time to incorporate any new information we find also or any additional, you know, technologies that are out there to recover more and deal with those at that time, yes. Ms. Nakamura: Thank you. Mr. Gegen: Thank you. Council Chair Furfaro: Mr. Bynum. Mr. Bynum: Mr. Gegen, thanks for your testimony. When this plan was adopted, Zero Waste had a lot of discussion about whether they would support the plan, ask for it to be revised, ask for a rejection. In the long run, I was here, Zero Waste supported adoption of the plan. At the same time, they said things like, 35% diversion rate seems low to us and the response was that's minimum and if we can exceed that, great. There were other concerns about specific elements of the plan, but as a total the recommendation from Zero Waste was to adopt the plan, correct? Mr. Gegen: Correct. Mr. Bynum: And so I just wanted to have that on the record because I feel similar. There were portions of the plan that I know as a councilmember I would say not now, but the timelines that were established in there is my big concern and I hope that we do have a future meeting. On October 12 we're going to have a CIP review about what our goals were in 2009 and where are we at now in 2012. And some of that will include solid waste matters. I think it would be great for us to have a look at this plan here at the council and say, what were the timelines that were adopted. Are we still on those timelines and if we're behind, why and how can we get back on track? And maybe have a report about what are more realistic timelines if we're behind because I know we are, unfortunately. So would you agree with those sentiments? Mr. Gegen: Yes, I would. Mr. Bynum: I don't know how the rest of the day is going to go, but I really would like comment from Zero Waste on this amendment. And I don't think there's a time pressure on this. And so if we don't pass it today and if there's going to be an amendment, the amendment raises lots of questions for me and I would want response from the administration and other dialogue with councilmembers about what is a goal where we would be adopting like revising and some of the things that Mr. Dill said about what's the logistics... COUNCIL MEETING -56- October 5, 2011 Mr. Gegen: For who? Mr. Bynum: ...Of revising the plan. Does that mean a new consultant? Is it a broad issue that we're looking at or a couple targeted ones? Can the council do those... a whole list of questions come up if we're looking at revising it. Mr. Gegen: Sure. Mr. Bynum: So I might in the future ... I don't know how the day's going to go, but I might just say, well, let's defer this so we have some time to get more clarity on those issues, especially if some of the key ... I know you guys have been here since this morning and are not here to engage in that dialogue. Does that make sense? Mr. Gegen: Yes, thank you. Mr. Bynum: Thank you. Council Chair Furfaro: Okay, Pat, before I recognize someone else, I want everybody to understand this is a resolution. What we're talking about now is putting it back up in committee and so forth and any member here can certainly approach me about a new item in the public works committee, okay. I mean what we're talking about here is a resolution which is a policy statement that came to us from the administration and it seems like it has a lot of support, but it's a policy statement. If we want to get into the mechanics of the plan and so forth, I suggest the members put a new item on the agenda. I suggest for Mr. Dill a la vavite monsieur. We need to move quicker is what I said, okay? Mr. Gegen: Thank you, agreed. Council Chair Furfaro: Vice Chair Yukimura. Ms. Yukimura: Would Zero Waste Kauai object to an amendment to this resolution wherein the council would adopt a diversion target of 70% by 2021? Mr. Gegen: I don't think that the members of Zero Waste would be adverse to putting a target out there going for 70% reduction by a certain date. I would hate to limit it to that period of time because once some of these things get going, we may be able to achieve it even quicker. Ms. Yukimura: Oh well, these are targets that San Francisco aimed for 75% by 2010 or whatever and they got to 77 %, but if you don't aim high, you're not as likely to get there as if you did. Mr. Gegen: Yup. Ms. Yukimura: All right, thank you. Mr. Gegen: Thank you. Council Chair Furfaro: Are there any more questions here? Pat, you have to leave at 4 o'clock. It's 4 o'clock. COUNCIL MEETING -57- October 5, 2011 Mr. Gegen: Council Chair Furfaro Mr. Gegen: Council Chair Furfaro A couple more minutes. Okay, so maybe at 4:05 p.m. Thank you. Mr. Kuali`i. Mr. Kuali`i: Thank you, Mr. Chair. So Pat, on the resolution, the three primary goals or the core principles, I can see clearly the downstream, the reuse, recycle, how so much that is already planned to happen is going to meet the zero waste goals. But can you give me an example of the upstream, pursuing upstream redesign strategies to reduce the volume and toxicity, and the third bullet of fostering and supporting the use of discarded products and materials for our local economic workforce that Apollo Kauai would be coming to the council to take action on, some kind of example of what this resolution means to you. The next step, what are you going to ask us to do based on this resolution as a council? And then also what are you going to ask the administration to do on those bullets 2 and 3 because I think bullet 1 is all over the place; it's happening already. Mr. Gegen: Sure, so when you talk about redesign strategies or the upfront stuff, I'll give you an example again from Maui. One of the things that they did is with the county's assistance, they started doing their electronics reuse, okay. We have our electronic reuse, I believe it's coming up October 22 this year. But right now I believe that's fully county funded. What has happened over on Maui is because a partnership has worked, there was a gentleman, an entrepreneur, who started taking that over. They now have drop -off two days a week, Tuesdays and Saturdays, and they are actually getting the computer companies as part of a take -back program to pay for the majority of the shipping, the collection, and all of that. The county is now, I believe, subsidizing at about $6,000 a year, which is very minimal for the amount of stuff that is getting recovered, taken care of properly so that the toxic metals and stuff are not ending up in a landfill. So those are the types of things. The other thing, reducing upfront, the plastic bag reduction act was a great example of something you did that. We are creating less plastic bag waste by having people bring that, bring their own bag. To take it further, when I go to the Farmers' Market, I've got mesh bags. I throw it in there and then I throw it in my shopping bag. So there's lots of different things that can be done. When you talk about discarded products and materials to stimulate and drive the local economic and workforce development, right now where does the glass go? All the glass that's disposed of here is getting shipped to the mainland, to China for recycling. Why aren't we using some of that as fill instead of fill dirt, you know. Taking our land, we've already got that resource here. Let's shave (inaudible) we're spending to ship it off island and utilize it as a product that we can here. There are other things that can be done. I know that there are MRFs where they have workforce centers in there that actually create employment for folks with handicaps. They can go in, do some work right there on the floor helping sort some of these things, allowing the MRF to get back a higher percentage of money, creating a workforce there. The eco- compost that Ms. Yukimura showed us, that employs 14 employees there by taking the sludge which is filling our landfill up, taking the greenwaste, which we're paying people to take, and they're putting it COUNCIL MEETING -58- October 5, 2011 together and making money out of it. So there are a lot of very good opportunities out there economically for people to make more by adhering to zero waste principles. I hope that answers your question. Mr. Kuali`i: That does. Thank you very much and thank you to everybody at Zero Waste. Mr. Gegen: Thank you and thank you very much for the courtesy you extended in allowing me to testify at this moment. Thank you. Council Chair Furfaro: Thank you. Members, let me ask a question here of you. Did you want people from the administration back or do we want to go on with public testimony? Mr. Rapozo: I just had one question for Larry or Allison regarding the plan. Council Chair Furfaro: May I ask the administration to come back, please? Can we get an extra chair for... there we go. Mr. Rapozo, you have the floor. Mr. Rapozo: Thank you. Larry, I have the final plan dated September 2009 and I'm assuming that is the last one. There were no amendments. Ms. Fraley: No. Mr. Rapozo: In this plan one of the recommendations is the waste -to- energy facility. The waste -to- energy facility, in fact they even mention to offset the cost of the waste -to- energy that they recommended that the county implement a residential solid waste management fee of $12 per household per month, which we did. We already did that. Ms. Fraley: Yes, we did, yes. Mr. Rapozo: The recommendation to do that, it appears, is to offset the cost of implementation of the plan. So where does the county stand on the waste -to- energy because I am... all what I've read about Zero Waste is that they do not support waste -to- energy, any type of incineration. So now it's not in sync. I think that's one of the concerns is if it's not in sync, then there's a problem and that is going to be a big problem because the waste -to- energy is still a recommendation by the consultant for this county. Mr. Dill: Yes, first the recently adopted residential refuse collection $12 assessment in the plan, as you note, it was a recommendation that we charge a $12 fee to offset the cost of the waste -to- energy facility. But the fee that was implemented recently was based on deferring expenses for operations of the transfer stations and the actual collection effort because as everybody knows we haven't proceeded with the waste -to- energy. I wasn't present when that plan was developed, though I was on the Solid Waste Advisory Committee. So further work was done by the consultant investigating the feasibility of the waste -to- energy facility and my understanding after further investigation, it was determined that this island didn't have the economy of scale to generate the necessary waste stream to make that a viable venture. Mr. Rapozo: Where is that? That's not reflected in the plan. COUNCIL MEETING -59- October 5, 2011 Mr. Dill: Correct because there were further studies that were done by the consultant at our request because the next question would be to analyze how feasible that was, in addition to the conceptual nature of that review that was done for that plan. Mr. Rapozo: I guess I'm confused because when Councilmember Nakamura talked about renewing the plan, you said we can't do that. You have to go out and... Mr. Dill: Yes and right. Mr. Rapozo: Now you're saying you did. Mr. Dill: No, we did not do a formal... Mr. Rapozo: Okay, so this stands. I don't understand, how can we deviate from the plan without going through the process you described earlier? Mr. Dill: We went through the process. As you would note, the recommendation was to pursue a waste -to- energy facility. Mr. Rapozo: Correct. Mr. Dill: That was pursued to the point where it was determined that it was not feasible. We did not do, as you know, a formal amendment to the plan. I don't think that would be a productive thing to do, Councilmember, because we would have to go through this process identified by the Hawaii Revised Statutes in order to do that. There is a requirement that that plan be updated on a regular basis. I think it's every 10 years is the requirement. Is that correct? And so we would do it at that time and in the meantime we do pursue and investigate these facilities and implement them as we determine that they are viable and feasible. I do want to touch on your note. I do agree with you on the fact that we do have a difference of opinion, I guess, between our philosophy of waste -to- energy facilities and the like versus Zero Waste Kauai. We don't want to close the door on something like that because we want to be able to, in the event that a waste -to- energy facility does become available because of improving technology that is environmentally friendly and can show a cost benefit that's desirable, then it's something we might want to be able to consider and only from that standpoint. To this date there is nothing that we're aware of that's out there that meets that. But like I said, I just don't want to close the door to that. Mr. Rapozo: I just want to be clear that the waste -to- energy is still on the plan. Mr. Dill: Yes. Mr. Rapozo: Because I had been told that it was no longer there and I thought maybe there was an amendment, but there was no amendment and I just want that to be made on the record. Mr. Dill: You're absolutely correct. COUNCIL MEETING -60- October 5, 2011 Mr. Rapozo: philosophy. Mr. Dill: Mr. Rapozo: And that is in total conflict with the Zero Waste Right. So there is definitely some conflict and... Mr. Dill: You'll notice in the resolution, as we mentioned and as Pat mentioned, there was a lot of discussion between the county and the Zero Waste folks about the resolution, how it would be phrased and worded. And they strongly discouraged any type of facility, I think ... I don't want to speak on their behalf. My understanding is they are strongly opposed to any facility that involves incineration and I respect that. Mr. Rapozo: That's in the resolution and that's what concerns me as well. Mr. Dill: In the resolution, the way it's worded is that it can. Mr. Rapozo: Yeah, I understand. Mr. Dill: Okay and so I would say the door is not closed. Mr. Rapozo: I guess and I'll ask staff to get a request over. I'm curious to see that subsequent study that was done. Mr. Dill: Okay, sure. Mr. Rapozo: Because I sat here through hours and hours and hours of testimony from R.W. Beck the first time around. And their data was quite compelling that Kauai did have enough truck trash to sustain a waste -to- energy facility. So I just ... and that's not for today, but I just want to see... Mr. Dill: I agree. I was on the Solid Waste Advisory Committee and I voted for it on the basis of what was presented to us at the time. Mr. Rapozo: Maybe we can have that on for a different agenda. Council Chair Furfaro: Yeah, Mr. Dill, I want to remind your division here that what we have here is a resolution, a resolution that's focused on approving certain actions as part of a policy statement. If we're going back to review the Integrated Solid Waste Program and so forth, I'll simply put another agenda item. I don't want us to be straying so far off on the resolution and I hope some of the members can appreciate what I'm saying here. The item for today's agenda is the resolution. I know it's going to lead and encroach on some of those items, but reviewing the whole plan here, I think we're at a point if we want to review the plan, we put a new item on the agenda. On that note, Mr. Bynum. Mr. Bynum: I just want to underscore some of the stuff you just said because in the lead up to the adopting of this plan I think there was a mixed opinion about whether waste -to- energy should be part of the plan and I think it's true to say that Zero Waste (inaudible) as I understand that the vast majority of them are opposed to that. But they made that (inaudible) because plans are complex. They made a decision as a group to say, even though there are elements of this plan we would wish were worded differently, we know that it's an integrated COUNCIL MEETING -61- October 5, 2011 plan and that it will get scrutiny, each one of these will get ongoing scrutiny. This council at one time restricted how those funds could be spent regarding waste -to- energy but wanted that kind of feasibility because kind of what that conclusion was was my position at the time that I wasn't philosophically opposed to waste -to- energy. I don't think it's inconsistent with zero waste, but I had questions about whether it was appropriate for our community with our scale. So I was glad that the consultant went further and said in essence, not now, not with the current state of things. And I think that is the administration's... this is the question part ... I think that is the administration's position right now to move forward with these elements, but keep the door open for waste -to- energy, but not now. Is that correct? Mr. Dill: That's correct. Mr. Bynum: Thank you very much. Council Chair Furfaro: Thank you. Thank you, Mr. Bynum. If there are no further questions of the administration, Council Vice Chair Yukimura, and I would like to share with you folks my earlier statement that if you want an item on the current plan to be reviewed, I'd be glad to put it on the agenda. Let's focus around the resolution. Vice Chair Yukimura, you have the floor. Mr. Bynum, you're going to have to turn off your mike. Ms. Yukimura: If a zero waste policy is what the administration is proposing and the plan reflects it, then why aren't you following the plan in terms of a MRF. Mr. Dill: We are pursuing a MRF. The mayor has asked us to put a priority on pursuing a MRF and we are doing so. Ms. Yukimura: But the plan said to do the MRF the year after the plan was adopted in year one and this is year four. Ms. Fraley: The plan was adopted in January 2010. Ms. Yukimura: Okay, then it's year three ... two. But it said to start the design of the MRF and you came and told us we don't need any money for a MRF in our last budget. They were all indications that you're not following the plan. So what's the use of a zero waste philosophy if the plan reflects it and you're not following the plan? Mr. Dill: We are behind schedule of the Integrated Solid Waste Management Plan for the MRF and likely some of the other items too. But I can tell you we are prioritizing a MRF and in -house we've done a lot of work, but we aren't ready to present to the council yet to pursue that. We will have to come to you for funding for that undoubtedly. We came to you with this resolution to show a commitment on behalf of the administration and in concert with the Zero Waste folks to show that we are moving forward together in this and sharing a lot of those philosophies and concepts. Ms. Yukimura: Well, if you're still staying open for a waste -to- energy plant, you don't understand the philosophy of zero waste at all. Mr. Dill: Well, I would say that we have a disagreement. COUNCIL MEETING -62- October 5, 2011 Ms. Yukimura: it. Well, you'll be treating waste as waste if you burn Council Chair Furfaro: I think Mr. Dill answered that question. Mr. Dill, we agree to disagree. So you've heard the Council Vice Chair's comment. Ms. Yukimura: So would you have an objection if the council in this resolution adopted a diversion target of 70% by 2021? Mr. Dill: I don't think I'd have a problem with that. I think that's a terrific goal and that would help motivate us to try to achieve that. Ms. Yukimura: Thank you, I'm glad to hear that because I think unless we reach high we won't get there. Mr. Dill: I concur. Ms. Yukimura: Okay, thank you. Council Chair Furfaro: Mr. Dill, again, I want to make sure that it is probably important for us to have some realistic goals and I do want to say in all fairness to the administration we appreciate you coming to us with this resolution. But if you do agree to some goals, certainly if during my time on the council, we will hold your feet to the fire. Mr. Dill: I understand. Council Chair Furfaro: Okay, very good. Are there any more comments? I think we have one more registered speaker and I want you to know I also accept your confession that you're a little bit behind. But as I told you earlier, we need to move a little quicker, tres vite. Okay, thank you very much. I think we have a Mr. James Harder is the last speaker. Oh, Harper, I'm sorry, I read it wrong. Jimmy, you're up. JAMES HARPER: Is that on? Okay. Aloha Council Chair and Council, I came here to speak on some items about the landfill. My name is James Harper and I am an Equipment Operator II with Solid Waste at the Kekaha Landfill. Council Chair Furfaro: Okay, James, let me share with you our procedure. Our agenda item is the resolution. You may speak on any item you so choose, but I reserve the right to terminate any discussion from the councilmembers because we need to speak on the agenda item. You have the floor. I just wanted to make sure you understood that. You have the floor. Mr. Harper: Exactly, yeah, okay. Well, my biggest concern is that I think everybody realizes a lot of this stuff should have happened like 20 years ago, you know. So we're really far behind in the landfill situation. Nothing is being diverted as of this situation now, I mean, greenwaste, cardboard, metals, hazards. Hazardous stuff is really bad. The sewage sludge ... well, just the sewage sludge that comes in, it creates problems with the landfill. It's coming in sort of like a muddy wet type of thing. When we involve that in our trash, what it does is it causes zero compaction. And if we go through and get like 3 -4 loads by 12 -1 o'clock of that stuff, it'll make a whole entire pad not compacted. By the end of the day, we're filling up a whole entire pad of stuff that could've been compacted way better COUNCIL MEETING -63- October 5, 2011 for better air space. And there's just a prime example of what happened on the...it was a couple weeks ago we received a whole bunch of PVC pipe material and this is not just a little bit. This was a matter of like about 100 tons of it. And what this did is it created this entire pad. We had about two feet more of fill just to do a pad. Now those kinds of things like that, it's just sad that we have no way of diverting that or if not, charging a special fee for things to be brought in there to where moneys could be used for other things to find different avenues to get recycles. But really I just wanted to say that we need to move on this like really quick. This landfill of ours is full to the rim. Our expansion has already met its halfway point. We're already moving back from a halfway lift back out. Mr. Nakamura: Three minutes, Council Chair. Council Chair Furfaro: Thank you. You still have the floor. Mr. Harper: Thank you. And if the way the design is with the three - degree increment this way, that space is going to fill in really, really quick. And I don't know if they have made their final on where the new landfill will be or anything like that, but it's going to run out of time before, I think, they've made that decision. So, just to let you guys know, administration -wise, there has to be movement really, really quick like. And we'll support it 100 %. We've had some stuff down there implemented that we were doing this tagging thing where we were going to fine for cardboard, things like that. It happened for about a month and then it got shut down because of a 10% situation saying how we could measure that. By right we didn't have any way of measuring that. In that cardboard ban, it should have always retained zero, no cardboard. Commercial cardboard, commercial greenwaste, commercial metals, it should have stayed zero. But that's about all I have to say. If you guys have any questions for me? Council Chair Furfaro: You know, Jim, I'm not going to permit some of the questions to your item. I want to share with you and the audience, I think you're aware that a contract review of the third party has been in this council's executive session as it relates to their legal responsibilities. I do want to say that some of the particular items that you touched on today I'm glad Mr. Dill is in the audience, he can hear it directly from you. But whether it's dealing with medical waste, sludge, the whole effort with diverting cardboard from suppliers has been in an executive session with this council and the appropriate communication has gone to the administration. And because it's an executive session I prefer not to have any more dialogue now. Mr. Harper: Exactly. Council Chair Furfaro: Thank you. Ms. Yukimura: Mr. Chair, I'd like to ask Mr. Harper whether he supports the resolution. him. Council Chair Furfaro: You have the floor, you may pose that question to Ms. Yukimura: Thank you. So James, do you support the Zero Waste Resolution? Mr. Harper: Yes, I thought that was already... going forward already. COUNCIL MEETING -64- October 5, 2011 Ms. Yukimura: A done deal? Well, from what you tell us there's a lot of work we'll have to do if we adopt this policy to actually make it reality on the land. But I did want to know what your position was and I just wanted to be sure for the record. Mr. Harper: Okay. Ms. Yukimura: Thank you. Council Chair Furfaro: And then the last comment, we do have a tracer on that contract review for November. I'm glad you were able to speak in front of the county engineer. Mr. Harper: All right. Council Chair Furfaro: Thank you very much. Mr. Harper: Thank you very much. Council Chair Furfaro: We have no more people signed up. Mr. Mickens, you have your hand up. GLENN MICKENS: Thank you, Jay, for the record Glenn Mickens. I just have a few comments. If, as this amendment for Zero Waste states, the goal is for each county was 50% in 2000 and ours in 2005 was only 25 %, why have we set the bar so low in 2009 that our Integrated Solid Waste Management Plan was 35% for 2013. Didn't we have an EPA mandate to get our program up to their rates or get fined? I thought I heard that once. I would like to know what the other islands' diversion rates are now and why Kauai is so far behind in our solid waste program? We still have no definitive landfill sited. We have no MRF. We have implemented the automated trash pick -up which uses a 96- gallon container, giving no incentive to those who would recycle more, use maybe a 32- gallon container. Why not? Use the pay -as- you -throw type of program as JoAnn has advocated for so long. Charge more for those who put out more than one 32- gallon container. This automated pick -up has done nothing to incentivize our filling our landfill or saving money. The two workers on the old pick -up truck, trash trucks were redeployed, which I approve of, so there was little say to these there except as Larry has pointed out in overtime, as you pointed out too Jay. There are some savings, but I'm not sure how that balances out. For me, we put the cart before the horse by not getting the recycling program going first and keeping trash pick -up to a minimum. Council Chair Furfaro: Glenn, I do want to say that I'm premature in any kind of answer on the MRF. The only thing I can say in fairness to the administration is I know they have put that down as an item that we might be hearing on relatively soon. That's all I want to go there. Mr. Mickens: Their priority on that thing may have been confused, right? I mean as JoAnn... Council Chair Furfaro: I think I already did that with Larry here. He is a nice Catholic boy; he's forgiven; he's moving forward, okay. I am not the administration. Mr. Mickens: Right. COUNCIL MEETING -65- October 5, 2011 Council Chair Furfaro: And all I'm saying to you in response is I believe the administration is working on these items, and yes, I believe they are delayed. Mr. Mickens: Okay. Council Chair Furfaro: On the 96- gallon containers, I have had pros and cons given to me. I have had people say that their grandparents only use about half of the container and therefore, they can still manage it. I've had others that said their younger children who are responsible for removing the `opala from the house when the can is full it's difficult for them. But I have always been able to meet with you separately as we did last week on roads and I would not want to speak for the administration on your questions. But I'll be more than glad to get together with you and Mr. Dill again. Mr. Mickens: Okay. Council Chair Furfaro: Okay, Mr. Bynum. Mr. Mickens: I appreciate that. Mr. Bynum: A lot of people shared their frustration and (inaudible) but I know that my expectation is and I believe the 96- gallon can is a step on the way that eventually when we have mixed recyclables and compostables picked up curbside that there will be those incentives in place, pay -as -you- throw, and it will be small can for disposal and if you need more you're going to have to pay for it and that is an integral part of this pay -as- you -throw concept. And so we're not there right now, but that's the direction we're headed. And I know I've said repeatedly, I'm not going to authorize any equipment purchases that aren't consistent with those goals. And I believe that's probably a consensus here. I just wanted to make that comment. Mr. Mickens: Well, as you know, Tim... Council Chair Furfaro: Hold on, Glenn. You were not posed a question. He gave you a statement. You get more time when we pose a question and we're really starting to drift a little bit here. But I'm going to allow other councilmembers to pose a question to you, okay. Are there any more questions because I'd like to take a recess so that I believe there's an amendment being proposed? (Inaudible.) Council Chair Furfaro: Understood. And I would like to get to that point. Glenn, call me any time for coffee, okay. Larry drinks it French Canadian style with a lot of cream, but we will get to you. Is there anyone else in the audience that would like to speak? Glenn, thank you very much. Okay, I'm going to call the meeting back to order. Oh, Carl, I'm sorry I didn't see your hand. Come right up. CARL IMPARATO: Aloha Councilmembers, my name is Carl Imparato, and I'm concerned about policy statements and resolutions because I believe they really matter. I think they need to be carefully worded because they can be used or misused to justify future actions. As Pat Gegen said, these resolutions guide future council actions. Pat also mentioned for example the Complete Streets Resolution. It's the example I wanted to bring up here because as an example, last year's Complete Streets Resolution did not include language regarding the importance of COUNCIL MEETING -66- October 5, 2011 local community desires or the importance of allowing rural communities to maintain their rural nature. And now communities find themselves having to defend ourselves from the county that wants to use the Complete Streets policies to use its priorities for pavement above local community priorities. To me, I just bring that up as an example, this is the problem with resolutions that don't balance all of the concepts that need to be in the resolution. So in considering this resolution, the Zero Waste Resolution, I ask that the council carefully consider all of the words. To begin with I support the general thrust of not wasting resources, but I believe that Zero Waste concepts need to be balanced. And so if after honestly taking into account all of the costs, including the cost of recycling facilities, the cost of incremental landfill capacity, all of the costs, a specific Zero Waste proposal makes economic sense, it should be considered. On the other hand if the proposal will increase costs, then the proposal doesn't make sense and should not be pursued. All of the great things that Pat Gegen talked about sound great, but I'll bet you that some of them cost more than the revenues they create or the cost they avoid. And I bring this up because when I see words like zero or eliminate in any policy or resolution, that should raise a yellow flag. It's rare that zero turns out to be the right answer for anything. And yet, a lot of the words in the Zero Waste Resolution, not just the capital zero waste, but just the non - capitalized words are all about zero. There's no acknowledgement of the importance of considering the cost or the cost effectiveness of policies and measures. And if the council does not include such an acknowledgement about the importance of cost as a matter of policy, then the county will be proceeding, I think, down the wrong direction. I don't believe that the county should adopt a resolution that will be taken to imply that cost is not an important consideration. So I ask that you bring balance to the resolution by restating the first of the two resolve clauses. These are the only two clauses in the bill that go beyond the findings in the whereases. And I would ask that the resolve clause says that Kauai County shall pursue the concept of Zero Waste Management rather than "to the greatest extent possible," but it shall pursue the concepts of Zero Waste Management "where economically reasonable after due consideration of the cost of such concepts and the cost of alternative concepts" and that the council and the administration will take steps to incorporate the Zero Waste philosophy where cost effective into the implementation of the Integrated Solid Waste Management Plan. Mr. Nakamura: Three minutes, Mr. Chair. Mr. Imparato: So I'm just asking that some balance be brought into this resolution, such as the Zero Waste Resolution, are not just feel good documents of little consequence. They're used to legitimize future proposals, future actions. So I ask that you give serious consideration to the importance of every word in the resolution and I thank you for your time. Council Chair Furfaro: Okay, Carl, I thank you for testimony and I certainly see no councilmember commenting on your comparison on the historic roads and the historic districts and I understand the point you made. If you'd like to give one of the members your comments... You have it? Very good. But I don't think ... we're in a real dilemma now. We have to get one of us to the Western Conference of Counties reception where we're hosting 64 delegates from the Western States, which now causes us maybe to be short one vote when it comes back to the other resolutions on the document here. So unless there's a very important question here for Carl's testimony, I would like to get to a point if members have amendments to introduce on this that we take a recess, no more COUNCIL MEETING -67- October 5, 2011 than 15 minutes. I excuse Mr. Chang to go represent aware, keep your phone close by because you may have item later. Go ahead you have the floor. us, but I want him to be to come back to vote on an There being no objections, the meeting was called back to order, and proceeded as follows: Ms. Nakamura: Could we also ask for a deferral so that we can move on with the rest of the agenda and get us through. Ms. Yukimura: You mean put it at the end of the agenda? Ms. Nakamura: No, just defer it. Council Chair Furfaro: Here's my feeling. We've gone this far, three hours on a resolution. To defer it? If you have amendments, take the 15 minutes to work on the amendments and let us bring this piece to the place that the council wants to be. If we defer that, then we're going to go into the next item and Mr. Chang will be absent and then we're stuck possibly at a split vote on other business that is important to us. Council Vice Chair Yukimura, I am not supporting a deferral on this item. Ms. Yukimura: I understand, Mr. Chair. I'd like to instead recommend a referral to committee and that would take care of it in this instant for today. It would go into a more appropriate forum where there can be lengthy discussion and I know that you think a resolution can be done quickly, but actually if it's a policy document, it's a serious document. And that would give us a chance to prepare amendments and do our work but not interfere with the work of this council right now today. Council Chair Furfaro: Okay, I will answer you. This resolution came to us from the administration. It's not a resolution from this body. I have also said to you if you want to put a new item on dealing with the solid waste plan and so forth that we can revisit it, I'll be more than happy to. And I don't think I've disappointed anybody in putting something on their agenda. But for us to spend three hours today? I'm sorry. Ms. Yukimura: Mr. Chair? Council Chair Furfaro: Yes. Ms. Yukimura: The resolution was proposed by the administration, but by passing it, it's going to be our resolution as a county council. So I think there might be enough people who would like to refer it to committee. Council Chair Furfaro: Okay, I'll call for the vote and I want to make sure it becomes ours if we amend it, and I'm proposing you have opportunities to amend. Mr. Rapozo. Mr. Rapozo: I believe the only amendment is yours on the goal. Ms. Yukimura: It's still going to take much more time... Mr. Rapozo: Right, but we can go onto other business... COUNCIL MEETING -68- October 5, 2011 Ms. Yukimura: There are several amend ... not just my amendment. I think Council. Mr. Rapozo: Right, I think she's interested in incorporating Carl's language. But I mean we can continue on the agenda and get rid of some of these items while the staff prepares the amendments and get to it at the end of the meeting. Ms. Yukimura: But we also want to participate in the other issues that are on the agenda. Mr. Rapozo: Staff is going to prepare the amendments. Okay, whatever, make the... somebody make a motion. Council Chair Furfaro: I'll tell you what I'm looking for after I let everybody speak once. Mr. Bynum. Mr. Bynum: I would be happy to vote for this resolution as it stands because it is a resolution and I kind of agree with the Chair. However, if we're going to amend it to request the administration to revise the current plan, I think that's very substantive and I would want more understanding and discussion and then a referral to committee, I think, would be appropriate. If we're going to amend it to put in a better goal, we already heard no objection from the administration. So like I said a couple times, I don't know how this is going to end up, but if we're going to ... so that's my position. I'd be happy to vote for it the way it is or to take an amendment that changes the goal. But if the amendment is to revise the plan and ask the administration ... because you raised ... I think they raised really good questions about does that require under HRS a new consultant or a big, you know ... because I don't want to pull energy ... I'm already unhappy that we're behind the plan. I don't want to pull energy from our limited source to revise the plan. Or if we're going to do that, I want more discussion about it. So if it's a simple resolution, let's do it today. If it's substantive like that, let's refer it to committee. Council Chair Furfaro: Thank you, Mr. Bynum. Mr. Chang, did you want to speak? I know we're an hour away from your departure time, but did you want to speak? Mr. Chang: I just wanted to say I'm ready to vote. If we had to vote today I would vote in support of the amendment. But I will do whatever the body wishes. If you want to bring it to committee next week or what have you, that's fine. But I just want to say I'm ready to vote. I think I've participated enough and I'm familiar with what we're trying to do, so I'm ready. I would be ready to vote. Council Chair Furfaro: Okay, thank you very much. What I plan to do then is I'm going to take a recess now. If there are members that want to draft an amendment, then you can do so during the recess. Ms. Yukimura: Mr. Chair? Council Chair Furfaro: Yes. COUNCIL MEETING -69- October 5, 2011 Ms. Yukimura: We can do that, but it's just taking more time if we take a motion to refer and it passes, that'll settle the issue for today. We'll have chances for amendments and we'll be able to move ahead and try to finish by... Council Chair Furfaro: Okay, I have a tendency to agree with Mr. Bynum if we want to, put a new agenda item on. I'm fine with this resolution as it is, but I'm going to pose a question to the... Ms. Yukimura: I'll make a motion if you want. Council Chair Furfaro: I'm going to pose a question to the body. Let me clear my thoughts out before you make any motion because I won't recognize it without getting my thoughts out. If there is a need to rethink this, then someone make a motion and let me get a second and I'll call for the vote immediately. Ms. Yukimura: Mr. Chair, I move to refer to ... I think it's your committee, isn't it? Public Works /Solid Waste? Mr. Rapozo: I have the Environmental Services. That'll work. Ms. Yukimura: Or the Chair, if you have a recommendation about which committee we should move it to? Council Chair Furfaro: I'm fine. Just make it in part of your motion. Ms. Yukimura: Okay, move to refer to the Public Works (sic) & Environmental Services. Mr. Chang: Second. Council Chair Furfaro: Okay, without any discussion on that motion, unless somebody has an urgent reason to raise their hand, may I call for a roll call vote, please. Ms. Yukimura moved to refer Resolution No. 2011 -73 to the Public Works (sic) & Environmental Services Committee, seconded by Mr. Chang, and carried by the following vote: FOR REFERRAL: Bynum, Chang, Kuah'i, Nakamura, Rapozo, TOTAL — 6, Yukimura AGAINST REFERRAL: Furfaro TOTAL —1, EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: Okay, we will be referring this item to a committee which is Public Works (sic) & Environmental Services and transfer the item as a resolution and on that note, if I can take up to 120 days on introducing something about the solid waste I will do as such. Consider yourselves warned. I thought we certainly had the ability to call for a vote on this today and there has been new discussion. So we are going to refer this to committee. We're going to take a 10- minute break and come back to a new item. Thank you. There being no objections, the meeting was recessed at 4:45 p.m. The meeting was called back to order at 4:58 p.m., and proceeded as follows: COUNCIL MEETING -70- October 5, 2011 Council Chair Furfaro: Okay, members, following up on the last action item, I want to make sure that everyone understood the motion was to move the resolution. I am not going to entertain a new solid waste bill at this point, but we've recommitted the resolution to committee. So on that note I'd like to move to 2410. Mr. Clerk, could you read the item. There being no objections, Bill No. 2410, Draft 1 was taken out of order. BILLS FOR SECOND READING: Bill No. 2410, Draft 1 — A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE PERMITTING PROCESS FOR TRANSIENT ACCOMMODATION UNITS: Mr. Rapozo moved to approve Bill No. 2410, Draft 1 on second and final reading and that it be transmitted to the Mayor for his approval, seconded by Mr. Chang. Council Chair Furfaro: (Inaudible) and seconded for approval of this bill. I do believe there's possibly an amendment being introduced and I would also want the planning director as well as the counsel for the planning department to come up first, please. Committee Chairwoman, you have the floor. Ms. Nakamura: Thank you, Chair. I want to introduce an amendment to Bill No. 2410, Draft 1, and everyone should have a copy of this before you, members of the public as well. We found out that there were some things that we missed in the committee discussion and the committee approval of the bill including the four amendments. So this floor amendment is to address some of the technical concerns and we've asked Mike and Ian to help explain the technical concerns. Mr. Rapozo: So is that a motion? Council Chair Furfaro: So we need a motion on accepting your amendment as circulated. Mr. Rapozo moved to amend Bill No. 2410, Draft 1, as shown in the Floor Amendment attached hereto (Attachment No. 1), seconded by Mr. Bynum. Council Chair Furfaro: Thank you very much. All members, you have your copies of those amendments, okay. Committee Chairwoman, would you like to pose the appropriate dialogue to the planning department and legal counsel? Ms. Nakamura: Yeah, could you please go over the amendments for the councilmembers? There being no objections, the rules were suspended. MICHAEL DAHILIG, Interim Planning Director: Good afternoon, Chair, Member of the Council, Mike Dahilig, Interim Planning Director, with Ian Jung, Deputy County Attorney. You have before you the floor amendment as proposed by Councilmember Nakamura concerning Bill 2410, Draft 1. The amendment, as outlined, propose six amendments. These amendments deal with technical tweakings that we discovered as a result of the passage of the four amendments to the bill last week in committee. If I can just briefly go through these amendments with you, the first one is to actually entitle the chapter ... I'm sorry, entitle the COUNCIL MEETING -71- October 5, 2011 Article 28 and we're entitling the article, Transient Accommodation Unit Certificate Allocation Program. We'll be calling it TAUCAP in our office so we don't have to refer to the whole thing, but that's the first amendment. The second one is regarding the definition of substantial sum and we're adding the language "before December 5, 2008" to just clarify that the ... I'm sorry. You need me to speak closer? Ms. Yukimura: (Inaudible) a little louder. Mr. Dahilig: Okay, sure, no problem. The second amendment concerns the definition of substantial sum and we're adding the language "before December 5, 2008," and this is just to clarify that the expenditures when the substantial sum exemption process is calculated that these expenditures happened before the enactment of the charter amendment. The third element concerns just spelling out the acronym KCC. So rather than KCC, you will see Kauai County Code 1987, as amended, and there are, I believe, two instances where we are making that change. So that's three and four. Five is concerning just to align, as with county policy, Hawaiian orthography. So we are changing the word Hawaii to reflect the `okina in the word. And then finally in the sixth amendment as proposed, we are clarifying again that it is subdivisions that have received tentative approval prior to the enactment of the charter amendment and not prior to the approval date of the ordinance. So again, we're holding that consistent bright line that everything was done before the enactment of the ordinance. And those are the amendments as proposed. Council Chair Furfaro: Thank you for the explanation, but I'm going to turn the floor back over to the Committee Chairwoman. Councilmember Nakamura. Ms. Nakamura: Is there one other thing that you want to review? IAN JUNG, Deputy County Attorney: There's actually also the last one which was in the body with Section 8- 28.5(p which we aligned that with the new definition of substantial sum. So we removed the portion of referring only to the 20% threshold for the 2008 -2009 real property assessment fund. So that reference to substantial sum is now aligned with the definition of substantial sum. Ms. Nakamura: Thank you. Ms. Yukimura: Question. Council Chair Furfaro: You can direct your questions to me. I only recognized her as the committee chair. Would you like the floor? Ms. Yukimura: I just want to ask a question. Council Chair Furfaro: Yes, you need the floor to ask the question. Ms. Yukimura: Thank you. Council Chair Furfaro: You have the floor. COUNCIL MEETING -72- October 5, 2011 Ms. Yukimura: I just wanted to make sure what your last reference was. Is it this set of amendments or is it something else? Mr. Jung: Yeah, it is within this set of amendments. If you look on... Mr. Dahilig: It's the fourth page, councilmember. Mr. Jung: Yeah, in Section 8- 28.5(f), there is bracketed starting with the word where, "where the Actual Cost of On Site Improvements..." So we refer back now, it's just referring to that definition of substantial sums where you can see the capitalized Substantial Sums. Ms. Yukimura: Because you have that defined somewhere, okay. Mr. Jung: Right. Council Chair Furfaro: It's up in the earlier pages. Thank you very much. Ms. Yukimura: Thank you. Council Chair Furfaro: Did you have another question for them? Ms. Nakamura: No, I just wanted to recognize Peter Morimoto, Ian Jung, Mike Dahilig, Carl Imparato for catching some of these technical issues and making the bill consistent throughout. So thank you very much. Council Chair Furfaro: Okay, gentlemen, I'm going to relieve you from the podium. I'm going to see if there's public testimony now. Were the amendments circulated, Scott? Did we circulate the amendments? We did. Okay, very good. Is there anyone in the audience who would like to speak on the amendments as circulated? Mr. Nakamura: Council Chair, we have one registered speaker. Council Chair Furfaro: Oh, very good, let's go with the registered speaker first. Mr. Nakamura: First registered speaker is Glenn Mickens. Council Chair Furfaro: Oh, I was going to recognize him first anyway. I'd know his hand anywhere. Got it? Okay. GLENN MICKENS: Well this isn't exactly on the amendment, but this is on the... Council Chair Furfaro: I'll make an exception. We're dealing with the amendment as circulated, but if you want to testify on the bill, go right ahead. Mr. Mickens: Okay, thank you, Jay. Okay, for the record Glenn Mickens. You have a copy of my testimony. Many of our citizens would like to retain Kaua`i's semirural nature. If the council adopts Bill 2410 in its present form, their dream will possibly be shattered. When the current recession ends, our island will be deluged with transient accommodation units, both those authorized under COUNCIL MEETING -73- October 5, 2011 the bill and those exempted from it. Kauai will be profoundly changed forever. And why will this happen? It will be because of the power of a group of developers who have manipulated our planning commission and are now pressuring our council. If the bill passes, in the years ahead this day will be remembered as the time our lives were irretrievably changed. The council and its legal advisers have maintained a strict silence as to the reasons for the course they are taking. We hope they have adequately considered its consequences and consider implementing the advice presented to Ms. Nadine Nakamura, Chair, Kauai County Council Planning Committee, by Walter Lewis in his letter of September 5, 2011. At the heart of Walter Lewis' argument about your passing Bill 2410 in its present form is Kauai now has about 9200 transient accommodation units (TAUs), but with the construction of the existing resort project units, ERPs, and possibly another 2,000 ERPs, Kauai would have vastly more than the TAUs it would have had under the guidance of the 2000 General Plan of the 1.5% annual growth rate specified in the charter amendment. In my opinion, this would be disastrous for our island if it were to happen if want to keep Kauai Kauai. I know there's a lot of amendments that have been brought forward. How much these amendments are going to go towards rectifying this is to be seen by you wiser people than I am. Thank you, Jay. Council Chair Furfaro: Thank you, Glenn. Is there anyone else that signed up for testimony? No? I'd like to call the meeting back to order and obviously hear from members, but the first action of business would be to vote on the amendment as circulated and then a motion to go back to the main bill. There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: Are there any further comments here? If not, I would like a roll call for the amendments as issued to the clerk. Could you please make that roll call? The motion to amend Bill No. 2410, Draft 1, as shown in the Floor Amendment attached hereto (Attachment No. 1) was then put, and carried by the following vote: FOR AMENDMENT: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST AMENDMENT: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: Thank you. On that note, can we now go to the main bill and do a roll call vote again? Let's see, before we go to the main motion, is there anyone else in the audience... Glenn, I took your testimony as dealing with the main motion. Is there anyone else in the audience that wishes to speak on this item? Carl, please come up. Let's suspend the rules. There being no objections, the rules were suspended. CARL IMPARATO: Aloha, Councilmembers, once more Carl Imparato. I just wanted to talk a little bit to the bill here because I think we may be on the verge of reaching a major milestone in the process of responsibly guiding Kaua`i's future. The first milestone was passed in November 2008 when the charter amendment to require compliance with the General Plan was approved by a COUNCIL MEETING -74- October 5, 2011 2 -1 margin. And Bill 2410 is the second milestone because it flushes out the mechanics of how the county council will choose to implement the responsibilities that were delegated to the council by the charter amendment. This bill clearly establishes that the County of Kauai can and will manage its growth in the 21st century. That's extremely important. The bill creates a reasonable and workable mechanism for balancing the requirement to implement a growth rate in tourist accommodations of no more than 1.5% per year on a multi -year average basis. It balances that with the requirement to respect the rights of landowners who obtained development rights prior to the passage of the charter amendment. Is that balance ideal? I think the bill bends too far to accommodate the claims of the development community. It would not have been unreasonable to require that actual construction of already approved projects be paced. But having said that, overall the bill is not unreasonable. The bill is workable. The bill will comply with the charter amendment's rate of growth concept over the long haul and it puts teeth into the General Plan as the voters demanded in 2008. Finally, it recognizes that we've moved on to a new planning environment, an environment in which it's clear that the people, through the planning process, rather than solely land developers and the unregulated marketplace, will have the right to determine Kaua`i's future. I think that's a very, very significant thing that will happen if this bill is passed. I also want to mention one thing which is that everyone should be reminded that neither the charter amendment nor this bill will limit jobs or the growth that Kauai needs or desires. Nothing in Bill 2410 stands in the way of the construction of the more than 3,000 tourist units that are already in the pipeline. Those units were approved before the passage of the charter amendment. That's an almost 33% increase in the number of units currently on the island. So the bill does not deal with that at all. It does not deal with taking away any jobs or growth that is needed at this point. What the bill will do is deal with the next 3,000 units and the 3,000 after that and so on so that over the long haul, growth on Kauai is more diverse, better paced, and sustainable. Having said that, I just want to make one more comment. I want to sincerely appreciate and express my respect for everyone who has worked over the past 10 months to craft the legislation that's before you today. That includes all of the Kauai County Councilmembers, with special recognition to Councilmember Nakamura and Yukimura on the planning committee, and to Council Chair Furfaro for his leadership in facilitating the efforts to develop a workable bill back in June. I want to recognize the members of the Kauai Planning Commission who sent a substantially improved bill back to the county council in May, Marie Williams and Mike Dahilig of the county planning department, Ian Jung and Al Castillo of the county attorney's office... Mr. Nakamura: Three minutes, Mr. Chair. Mr.Imparato: ...Peter Nakamura and Peter Morimoto of the county council staff, and lastly the members of the development community who supported a responsible and reasonable implementation of the charter amendment. I recognize that many of the people on that list may not have supported the charter amendment in 2008 and that's why it's even more gratifying to observe that all of them did hear the voters' message, they accepted that message, and worked to responsibly respond to the message. So I'm hoping that you'll pass this bill, but whether you do or don't, I think appreciation is due to everyone and I thank you for your time. COUNCIL MEETING -75- October 5, 2011 Council Chair Furfaro: Okay. Carl, I do think in the recognizing of people that had worked on the bill, it is also very important for this council to say thank you to yourself, Carl. Your feedback and undying commitment to work with the planning department, with Council Committee Chair Nakamura and Vice Chair Yukimura is certainly greatly appreciated. Last opportunity around we didn't get a chance to recognize you and I wanted to say thank you very much for your comments, very constructive, good parameters for us and at the same time I just want to say to Marie Williams, she was absent in the audience the last time, and Marie, your commitment to this project is greatly appreciated. I already commented last time on your bosses, but they couldn't do it without your commitment and working closely with Carl. Thank you very much, Carl. Mr. Imparato: Thank you, it's been an honor. Council Chair Furfaro: Any further discussion with Carl? You have the floor. Ms. Nakamura: Thank you. And I just wanted to chime in and say that I really agree with your comments that we could not have done it without your input and Carl, what I really appreciated too was that you were willing to meet us halfway. When you had concerns about the bill, you didn't just criticize, you came up with constructive solutions. So I really appreciate that. Thank you. Council Chair Furfaro: While Carl's at the stand, is there anyone else who wants to share a comment with Carl? If not, Carl, I'm going to see if there's anyone else and again, mahalo, thank you. Is there anyone else in the audience that would like to speak as we are now on the main motion? Come right up. DAVID ARAKAWA, Land Use Research Foundation: Good afternoon, Council Chair Furfaro, Vice Chair Yukimura, and Planning Committee Chair Nakamura, and Members of the Kauai County Council. My name is Dave Arakawa and I'm the executive director of the Land Use Research Foundation. We're a nonprofit statewide research and trade organization. We represent the large landowners and the electric companies. One of our missions is to research and advocate for reasonable, rationale, equitable land use planning rules and regulations, and we do that across the state. It's been our honor to work together with you and the Kauai County on this bill. We commend the diligence, professionalism and the openness of the Kauai Planning Department and you've named the members there, the Kauai Department of Corporation Counsel and both of these departments have very young, smart and energetic young people who really, really work hard. We'd also like to thank the Planning Commission, the Kauai Council and Mr. Imparato, whom we've been working with with respect to issues on this bill, and we'd like to thank again you folks for bringing this bill to this point. We strongly support the passage of this bill which appears to be a valiant effort to balance competing interests. LURF's interests at this point, our intent at this point is to have this bill passed without any legal challenges or legal issues that could overturn it. So that's where our remarks are coming from. We believe that this draft has three things about it that we notice. One is there are some new provisions, provisions that don't appear in any other type of legislation in the State of Hawaii or in the counties relating to vested rights or equitable estoppel. Second, that some of these terms don't follow the legal precedent of the Hawaii Supreme Court cases, but that is your prerogative as the council. And thirdly, and this gives us some concern is it COUNCIL MEETING -76- October 5, 2011 overlooks a class of stakeholders, multi - phased resorts that may have a significant interest in legally challenging this bill and the charter amendment. We don't want legal challenges. We want this bill to pass and be implemented, but we're afraid that because this bill does not address their interest that they're pushed into a corner and they might not have any other option but to take legal action. The rest of the issue is on page 2 of my testimony referred before, so I won't go over it. Going to page 3, we just wanted to take a look at this issue that the draft of this bill, we believe, is based on zoning by initiative and is inconsistent with the State Planning Act and Kauai General Plan. We noted that in the Kaiser Hawaii Kai case, the Hawaii Supreme Court held that zoning by initiative votes were fundamentally inconsistent with the State Planning Act and not permitted under Hawaii law. EDDIE TOPENIO, JR., Deputy County Clerk: Three minutes, Mr. Chair. Mr. Arakawa: So I'll finish up. I think that was the... Council Chair Furfaro: You have three more minutes. That was a note for three minutes. You still have the floor. Mr. Arakawa: Okay, all right. With respect to these projects, these multi - phased projects, our testimony has steadily said in the past that these projects were government approvals and have remaining resort designated parcels of a phased project should be qualified as exempt where in the final discretionary permits for the initial phases the county require the owners to expend substantial sums for improvements and where those resort owners did expend those substantial sums because the county required them. And this issue is based on equitable estoppel and vested rights analysis. Other jurisdictions, we didn't make this up; we did not make this concept up. There are at least five other jurisdictions in the United States that have found that an owner can establish vested rights or zoning estoppel in a phased development project even where not all of the required permits have been obtained for the final phase or parcels of that project as long as the developer had completed the required infrastructure improvements that benefit the entire project. And so on the bottom of page 3 and top of page 4, we listed those cases. That's the law in the United States and states in the United States. As we mentioned earlier, the proposed bill does not include these multi - phased projects within the class of developments that are eligible for exemption from the TAU cap and we're afraid. We want this bill to go on. We want it to be implemented. We want it to pass with no appeal, but we're afraid that by not taking care of these projects, it leaves the owners of those projects no alternatives but to seek legal relief. We would ask the council to consider rather than risk losing the charter amendment to an appeal to address those issues. There are simple changes we think to the bill that could be implemented that would address that. Lastly, with respect to the definition of substantial sums, again, we thank the planning department and the department of corporation counsel and you folks for addressing those issues, but we have two issues with the substantial sums. And first on the top of page 5, the definition of substantial sum appears to be strictly limited to three things only, only three costs: architectural, engineering, and construction costs. Now if the bill is amended to say "including but not limited to" that would take care of that and give the planning director discretion. The second issue is that the substantial sum analysis is very narrowly limited to cost incurred to satisfy a condition or requirement, cost incurred to satisfy a condition or requirement. So if your zoning approval allows you to build a wedding chapel, allows you to build a convention hall or whatever and you build it, you don't get credit for the substantial cost because it wasn't required. COUNCIL MEETING -77- October 5, 2011 Mr. Nakamura: Six minutes, Mr. Chair. Mr. Arakawa: So those are the issues that we've laid out there in our testimony and we've put before you and again, we'd like to thank everyone from the Kauai County that's been involved with this bill. It's been a long road, but it shows a cooperation between the private sector and the public sector and we appreciate your consideration. Thank you very much. Council Chair Furfaro: Thank you very much for your comments and we'll take into consideration the things that you've shared here before we go to a vote. But I obviously want to say everyone at this table is charged with the stewardship of this island, this county, and this bill that we've come out with is what we think is fair and reasonable. If you have other legal issues, obviously you can continue dialogue with the planning department and/or our county attorney's office. But I think we've come to a point with the amendments we made that this bill reflects the charter expectations of the public and we've set some very good parameters as it relates to this council's stewardship of this county. So thank you very much. Mr. Arakawa: And we strongly support that bill and your approval. We strongly support you. Council Chair Furfaro: Any comments for Mr. Arakawa. Thank you very much. Mr. Arakawa: Thank you. Council Chair Furfaro: Is there anyone else that would like to comment on this before I call the business of the council back to order? Seeing no one, members, we're back in session. There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: What is before us is an amended bill and I will go around the table starting with Mr. Bynum for commentary. Mr. Bynum, you have the floor. Mr. Bynum: Thank you very much. It's very tempting to go down all of the thank -yous that you've heard already, but I'm going to avoid that and I going to say that I am going to support this bill today. Although I wasn't here at the last committee meeting, I know how hard the council worked and I've met with our legal analyst, with the chair of the planning department and gotten a review of all of the amendments. So I do want to talk about process some because this has been a long road and I believe that the County of Kauai needed a growth management tool, that it was called for in the General Plan in 2000. We didn't have that and in a very bad economy we let a lot of horses out of the barn that we would have managed that much better. But we live in a country with laws and balance, and we have things like vested rights and equitable estoppel, and that is a very complex national debate that the U.S. Supreme Court has a number of germane findings, and each state, including our state, and there is language in this bill that if this were a court decision, I couldn't support because I think it's pretty strong in terms of the vested rights being really strong or the substantial sums. But this isn't a court decision. COUNCIL MEETING -78- October 5, 2011 This is a bill to provide stewardship for the County of Kauai and in this process, this is maybe a landmark about how we should proceed, not at the front end in my opinion. I think that it was the political apparatus' responsibility to provide a growth management plan subsequent to the General Plan in 2000 and when that didn't happen, very thoughtful and concerned people that love this island took it to the voters. I wish we never get to that. I think that's a last resort kind of thing. But once it happened it became the law and so I've been very worried about how we're going to work this all out. We live in this great community. A bill came literally the last... right at the end of the last session. It went to our planning commission and between our planning staff, the county attorney's office, and the planning commissioners, they reworked the entire bill and improved it dramatically. We ended up receiving the initial bill that came from the council and working on that. Subsequent to that, I know how hard everyone has worked with the leadership of Nadine, our planning chair, and with our, I think, vice chair of planning, JoAnn, who has been passionate about these issues for a very long time. But they engaged the community, developers, attorneys. I can't say how many meetings that happened, and we found common ground. Not everybody's happy with every element. We just heard that in the testimony from the Land Use Research Foundation. They're saying pass this bill but giving us caution, and that's part of the process. I mean this has been a model for how we should proceed: treat each other civilly, sit down, meet repeatedly, and find the balance in there. So I'm very proud of and I wasn't that directly involved. I kept fully informed and I got briefings, but I didn't have to get engaged at that deep of a level because that kind of work was happening and that collaboration was occurring, and it's a model for us going forward. When we have controversial issues, we have a wonderful community, we share some of the very same values even though the direction or how we get there we may disagree. And if we can do this and come to a consensus where you've heard still some concerns from both sides of the issue, but an agreement that we pass this bill, that's a real testament to our community and to the leadership that we have and even to the developers that we work with, who are integral parts of our community as well. And so it's just ... I'm really gratified that I believe we're going to have a unanimous vote on this today. Council Chair Furfaro: Thank you. Next member who would like to speak while we're in this dialogue? If not, I'm going to call for the vote. Oh, you have something to say? Then you have an opportunity now. Ms. Yukimura: Thank you, Chair. Well, today a process begun by deeply concerned citizens and ratified by the overwhelming vote of the people is coming to a conclusion. The vote at the ballot box established a new charter amendment that said, enough already. We don't want any more uncontrolled resort growth. It has the potential to ruin our island, our lifestyle and our future. So let's stick to the targets established in the General Plan. Let that growth develop over an orderly sequence of time so we can accommodate the extra traffic, the sewage, use of our parks, cultural and environmental resources. This charter amendment greatly disturbed government planners and developers because it was an unanticipated overlay and intervention in the regular planning process, and created great uncertainty in a process that was otherwise familiar. I want to acknowledge the development community here because I think most are trying to do the right thing. They've done much for the community and several have done really beautiful developments that are assets in our community. But the development community has not had the responsibility that we, the government planners, have to look at the cumulative collective numbers and impacts., And that's what has concerned the citizens in the ballot action. The application of the charter amendment could have exploded into an expensive gut- wrenching series of lawsuits and/or acrimonious COUNCIL MEETING -79- October 5, 2011 wrangling and warfare in the council, planning commission and in the public. But because we now have a conscientious and skilled planning department /county attorney team, and able planning committee and council chairs, and a dedicated representative of the citizen group that brought forth the charter amendment, and a group of developers who have stayed involved and given us input, we have navigated our way to a conclusion that most of us can live with. And I want to take 30 seconds to again mention and acknowledge the planning director, Mike Dahilig, planner Marie Williams, deputy attorney Ian Jung, citizen Carl Imparato, council planning committee chair Nadine Nakamura, and council chair Furfaro, the development community, the slow growth citizens and our staff people, our clerk Peter Nakamura and our legal analyst Peter Morimoto. Most of us are relieved. Some of us may be happy. I'm sorry to say that I'm relieved, but I'm not happy. I don't think we have really solved the underlying problem of how to plan well and effectively manage growth. The charter amendment didn't stop or slow down growth. The crash of 2008 did and for a while. When the economy turns around, we could see an increase of 50% of visitor units overnight. From the 9,300 units that are in operation today to a total of 13,000 units, which we have no idea how to accommodate in terms of roads, sewers, water, parks, etc. And all of this before the TAU certificates are triggered because potentially there are 4,000 that could be exempt or permitted under the bill. So that's why I introduced an amendment in committee to not allow any more growth through the application to the council. I think the bill already abides to the concepts of vesting and equitable establishment through the exempt and permitted, and we don't have to allow any more growth above the TAU certificates. But that didn't pass. I'm voting for this bill because I don't think that another version of the bill could stop more growth, although it could have stopped some growth, hopefully we won't come to that in terms of people coming to the council for growth beyond the TAU allocation. And the reason why we don't have the option for stopping the exempt and permitted growth is because through an extremely broken planning process, the horses were let out of the barn before the charter amendment passed. As we look to the future and because we have some breathing space, I think we need to spend our energy on fixing the broken planning process to ensure that (1) we can set clear growth caps and (2) that we have documentation and data to enforce those caps in the next general plan. And (3) that our citizens and decision makers are supported in understanding the consequences of the choices that we make during the general plan process. I believe that the law allows the community to shape its own destiny and that we can have growth caps that stick if we do our planning well. In fact, I don't know how we could have a general plan based on sustainability principles without that power. So I call upon our mayor and my fellow councilmembers and the planning department and commission and staff and citizens and developers to do their part to ensure that our upcoming general plan process, our community planning processes do the planning well because a well managed growth process benefits everyone. It benefits the residents who live here. It benefits existing resorts because an explosion of growth will affect occupancy rates and unhealthy occupancy rates do not help our resorts. And it benefits the workers in these resorts because they can have more stable work weeks and it benefits our environment and what will result will be an attractive visitor destination that is prosperous and sustainable. And I hope that we can all work toward that. COUNCIL MEETING -80- October 5, 2011 Council Chair Furfaro: Thank you, Vice Chair Yukimura. Mr. Bynum, before I go to Councilman Kuali`i, so we don't get any feedback in the mike, could I ask you and Council Vice Chair Yukimura to shut your mikes off. There we go. Thank you very much. Mr. Kuali`i: Thank you, Mr. Chair. I just wanted to say mahalo to everyone that's brought us to this point, especially the people. Council Chair Furfaro: Thank you very much. I'll move to this side of the table, Mr. Chang. Mr. Chang: I think everybody summarized it up pretty good, so I'm not going to take anybody else's time. But I just want to say thank you and thank you for everybody with this long process. I think Mr. Imparato did everybody fairly and thank you for all your acknowledgements and to yourself, personally. Thank you, Mr. Chair. Council Chair Furfaro: Thank you. Mr. Rapozo. Mr. Rapozo: It's been a very long day. I really don't have much more to add. I made my comments last week, but I do want to say thanks to Carl because in my short career here on the council, we've done a lot of land use bills, planning bills, controversial bills and typically what we get is a fragmented gallery, a lot of people just angry. And I don't know how you did it, but you were able to collectively get the community so we dealt with one person that was representing a lot of people. And I think that was the key and I think Mr. Bynum said earlier if we can use that as the model going forward, I think we'll save a lot of time and energy. So in addition to all the rest that has already been thanked, thank you, Carl, special thanks because it made it a lot easier for us here on this table. Thank you. Council Chair Furfaro: The last person I'll recognize, Vice Chair Yukimura, do you... okay. Well, I will summarize this by just saying I think everybody has tried to do the right thing for the right reasons in being good stewards of our community. Mr. Clerk, may I have a roll call vote on the bill as amended. The motion to adopt Bill No. 2410, Draft 1, as amended, on second and final reading and that it be transmitted to the Mayor for his approval, was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: Thank you. Mr. Clerk, on that note, I would like to take a 5- minute break. Mr. Chang, if you choose to go to represent us at the Western Regional Conference, we will continue with our business after the break. Members, 10 minutes, 10 minutes only. There being no objections, the meeting was recessed at 5:39 p.m. The meeting was called back to order at 5:48 p.m., and proceeded as follows: COUNCIL MEETING -81- October 5, 2011 Council Chair Furfaro: We are now back from recess. Mr. Clerk, we do have a letter of excuse from Mr. Chang. He went to represent us at the reception for the Western Regional Council and we will continue with our business here without Mr. Chang. He is excused. Mr. Chang was noted as excused at 5:48 p.m. The Council resumed its business on page 2 of the agenda, Communication C 2011 -282. COMMUNICATIONS: C 2011 -282 Communication (09/12/2011) from the Prosecuting Attorney, requesting Council approval of the following: (1) to apply for, receive and expend Juvenile Accountability Block Grant (JABG) Program funds in the amount of $15,685.00, and (2) to indemnify the State of Hawaii, Department of Human Services; to subcontract with Hale `Opio and the Kauai Teen Court Program for the term beginning January 1, 2012. Ms. Nakamura moved to approve C 2011 -282, seconded by Mr. Rapozo, and unanimously carried. C 2011 -283 Communication (09/15/2011) from the Prosecuting Attorney, requesting Council approval of the following: (1) to apply for, receive and expend State Victim Witness Assistance Program Grant funds in the amount of $26,200.00 for the continuation of the Kauai Victim Witness Program for the term 7- 1 -2011 to 6 -30 -2012, and (2) to indemnify the State of Hawaii, Department of the Attorney General. On July 6, 2011 the Council approved funding in the amount of $20,186.00 (item C 2011 -205), but on July 19, 2011 the County of Kauai, Office of the Prosecuting Attorney's Office, was awarded an increased grant amount of $26,200.00. These funds will be expended on salaries and wages for a Victim Witness Clerk, office supplies, and two Dell computers: Ms. Nakamura moved to approve C 2011 -283, seconded by Ms. Yukimura, and unanimously carried. C 2011 -284 Communication (09/15/2011) from the Prosecuting Attorney, requesting Council approval of the following: (1) to apply for, receive and expend State Career Criminal Prosecution Program Grant funds in the amount of $80,834.00 for the continuation of the Kauai Career Criminal Prosecution Program for the term 7 -1 -2011 through 6 -30 -2012, and (2) to indemnify the State of Hawaii, Department of the Attorney General. On July 6, 2011, the Council approved funding in the amount of $61,938.00 (item C 2011 -203), but on July 9, 2011 the County of Kauai, Office of the Prosecuting Attorney, was awarded an increased grant amount of $80,834.00. These funds will be expended on salaries and wages for the Career Criminal Prosecution staff: Mr. Rapozo moved to approve C 2011 -284, seconded by Ms. Yukimura, and unanimously carried. COUNCIL MEETING -82- October 5, 2011 C 2011 -285 Communication (09/15/2011) from the Housing Director, requesting Council approval to decline the County's option to repurchase Unit No. 10, Villas at Puali, located at 4043 Puali Place, Lihu`e, Hawaii 96766, and to grant the owner a one -year waiver of the buyback to allow a market sale by the owner for a period of one year: Ms. Yukimura moved to approve C 2011 -285, seconded by Mr. Bynum, and unanimously carried. Council Chair Furfaro: Let me ask, may I take this towards the end of the schedule? May I ask you to go through some other items before I come to item 286? Can we go to Committee Reports, please? Communication C 2011 -286 was moved to the end of the agenda. COMMITTEE REPORTS: A report (No. CR -PL 2011 -04) submitted by the Planning Committee, recommending that the following be approved as amended on second and final reading, "Bill No. 2410 — A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE PERMITTING PROCESS FOR TRANSIENT ACCOMMODATION UNITS," Mr. Rapozo moved for approval of the report, seconded by Ms. Yukimura, and unanimously carried (Councilmember Chang excused). (See later for Bill No. 2410, Draft 1) A report (No. CR -IGR 2011 -01) submitted by the Intergovernmental Relations Committee, recommending that the following be denied, "C 2011 -256 Communication (08/26/2011) from Councilmember Yukimura, requesting Council approval, to include in the 2012 Hawaii State Association of Counties Legislative Package, a proposal to amend Chapter 196, Hawaii Revised Statutes (HRS), relating to Energy Resources, which requires solar water heating for all new single- family and duplex construction," Mr. Kuali`i moved for approval of the report, seconded by Ms. Yukimura, and unanimously carried (Councilmember Chang excused). A report (No. CR -FPP 2011 -09) submitted by the Finance /Parks & Recreation/Public Works Programs Committee, recommending that the following be approved on second and final reading, "Bill No. 2411 — A BILL FOR AN ORDINANCE TO AMEND ORDINANCE NO. B- 2011 -732, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII FOR THE FISCAL YEAR JULY 1, 2011 THROUGH JUNE 30, 2012, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND (Office of the County Clerk - $60,000.00)," Ms. Yukimura moved for approval of the report, seconded by Mr. Kuali`i, and unanimously carried (Councilmember Chang excused). (See later for Bill No. 2411) COUNCIL MEETING -83- October 5, 2011 A report (No. CR -COW 2011 -23) submitted by the Committee of the Whole, recommending that the following be received for the record, "COW 2011 -09 Communication (09/08/2011) from Council Chair Jay Furfaro, requesting the Administration's presence to discuss C 2011 -241, relating to the Fourth Quarter Reports addressing vacancies new hires, reallocations and promotions in the County," and "C 2011 -241 Communication (08/08/2011) from the Director of Personnel Services, transmitting for Council information, the Fourth Quarter Reports (April — June 2011) relative to vacancies, new hires, reallocations and promotions in the County, pursuant to Section 20 of the County Budget Ordinance," Ms. Nakamura moved for approval of the report, seconded by Mr. Kuali`i, and unanimously carried (Councilmember Chang excused). A report (No. CR -COW 2011 -24) submitted by the Committee of the Whole, recommending that the following by received for the record, "C 2011 -254 Communication (08/23/2011) from the Chair of the Charter Review Commission, requesting (1) comments from the Council regarding a proposal to amend Article XV of the Kauai County Charter, Relating to Establishing a Department of Human Resources, and (2) whether the Council endorses the transitioning of the existing Department of Personnel Services to a more comprehensive and fully functional Human Resources Department, as outlined in the proposed amendment. • Charter Amendment: Article XV of the Kauai County Charter Relating to Establishing a Department of Human Resources," Ms. Nakamura moved for approval of the report, seconded by Mr. Kuali`i, and unanimously carried (Councilmember Chang excused). BILL FOR FIRST READING: Proposed Draft Bill (No. 2419) — A BILL FOR AN ORDINANCE AMENDING CHAPTER 15A OF THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE KAUAI COUNTY FIRE CODE: Mr. Rapozo moved for passage of Proposed Draft Bill (No. 2419) on first reading, that it be ordered to print, that a public hearing thereon be scheduled for November 2, 2011, and that it thereafter be referred to the Public Safety & Environmental Services Committee, seconded by Mr. Bynum, and carried by the following vote: FOR PASSAGE: Bynum, Kuali`i, Nakamura, Rapozo, TOTAL — 6, Yukimura, Furfaro AGAINST PASSAGE: None TOTAL — 0, EXCUSED & NOT VOTING: Chang TOTAL —1. BILL FOR SECOND READING: Bill No. 2411 — A BILL FOR AN ORDINANCE TO AMEND ORDINANCE NO. B- 2011 -732, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII FOR THE FISCAL YEAR JULY 1, 2011 THROUGH JUNE 30, 2012, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND (Office of the County COUNCIL MEETING -84- October 5, 2011 Clerk - $60,000.00): Mr. Bynum moved for adoption of Bill No. 2411 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Kuali`i, and carried by the following vote: FOR ADOPTION: Bynum, Kuali`i, Nakamura, Rapozo, TOTAL — 6, Yukimura, Furfaro AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: Chang TOTAL —1. EXECUTIVE SESSION: Council Chair Furfaro: So are we now going to go back to page 3 item 286 with all of our other business done? No? Where are we headed? Mr. Nakamura: If at this time, Mr. Chair, on the executive session matter on page 6 of the council's agenda, executive session item ES -498, which is related to Bill No. 2410, if we just could get a motion to receive on this? ES -498 Pursuant to Hawaii Revised Statutes Sections 92 -4, 92- 5(a)(4) and (8), and Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an executive session to provide Council with a briefing regarding legal issues related to the implementation of Kauai County Charter Section 3.19 and Bill No. 2410. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. Mr. Bynum moved to receive ES -498 for the record, seconded by Ms. Yukimura, and unanimously carried. ES -501 Pursuant to HRS sections 92 -4, 92- 5(a)(4), and section 3.07(e) of the Kauai County Charter, the Office of the County Attorney, on behalf of the Council, requests an executive session with the Council to provide the Council with a briefing on the retention of special counsel to represent the County of Kauai in County of Kauai vs. Michael Guard Sheehan, et al., Civil No. 11 -1 -0098 (Condemnation), Fifth Circuit Court, and related matters. The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. Council Chair Furfaro: Members, can I call up the county attorney? Ms. Yukimura: Mr. Chair, maybe Mike Sheehan wants to speak first. Council Chair Furfaro: I'll let him speak after we hear that we want to go into executive session. How's that? There being no objections, the rules were suspended. MAUNA KEA TRASK, Deputy County Attorney: For the record deputy county attorney Mauna Kea Trask on behalf of the county attorney's office. I believe... correct me if I'm wrong, but I believe this was read already. Was this ES read already? Mr. Rapozo: It was read. COUNCIL MEETING -85- October 5, 2011 Mr. Trask: Okay. Pursuant to HRS sections 92 -4, 92- 5(a)(4), and section 3.07(e) of the Kauai County Charter, the Office of the County Attorney, on behalf of the Council, requests an executive session with the Council to provide the Council with a briefing on the retention of special counsel to represent the County of Kauai in County of Kauai vs. Michael Guard Sheehan, et al., Civil No. 11 -1 -0098 (Condemnation), Fifth Circuit Court, and related matters. The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. Council Chair Furfaro: Thank you very much. I would guess I'd like to take a vote here to approve and second and then I would take public testimony on anyone that wants to speak on this executive session. Mr. Rapozo: Mr. Chair, I believe we already did the motion and vote to go in. On the first batch we put it all together, so I don't believe... You can check, Mr. Clerk. Council Chair Furfaro: We'll check with the record. That's a good point. We read all the executive items. So thank you for that clarification, Mr. Rapozo. Mr. Mauna Kea Trask, I'm going to ask you to step to the side. (Inaudible) when I lost a vote on a resolution, but here I have influence. Mike, you're first. MICHAEL SHEEHAN: The blue light is on. Thank you, Mr. Chair and Members of the Council. Michael Sheehan is my name. And I see that I'm the subject matter of the county attorney under the direction of the Mayor asking you for $75,000 to sue me to acquire property in Hanalei for park expansion that I'm very happy to sit down and discuss in a very friendly manner. And I think this is absolutely and totally unnecessary. And if you're going to be giving all this money away, I'd rather you give it to the homeless folks and you guys just come out and I'll buy you lunch and we'll walk around the property there and see what you want to do. I think this is a total waste of time. It's gone on way, way too long and it's totally unnecessary. And if we can't figure a better way to do it, then perhaps I can request you ask the Center for Alternative Dispute Resolution, which is an arm of the Hawaii Supreme Court, and ask them to assign a mediator and that doesn't cost anything, and use that money for something worthwhile. That's all I have to say. Thank you very much for the time and if you have any questions, please, let me know. Council Chair Furfaro: Okay, I'm going to give Mr. Rapozo the floor, then Vice Chair Yukimura. Mr. Rapozo: Hey Mike, I have a couple of questions. Have you been in negotiations with the county since January? Mr. Sheehan: We have attempted negotiations. The county administration hired an appraisal firm, but the appraisal firm only valued the raw land. It didn't value any of the improvements and it didn't value the problematic issue of permits. Mr. Rapozo: But I guess my question is has there been any active negotiations between you and the county. COUNCIL MEETING -86- October 5, 2011 Mr. Sheehan: No, it's been very quiet and then I just found out last week that they've not only sued me once, they've sued me twice and I haven't received a copy of the... apparently a four - month -old filing. So I'd like to see that. I think that would be kind of appropriate. Mr. Rapozo: Did you get served the condemnation complaint? Mr. Sheehan: No. Mr. Rapozo: You have not been served the... Mr. Sheehan: No, sir. Mr. Rapozo: This case that we're talking about today... C... sorry. Mr. Sheehan: Whatever number it is, no, I've not received it. Mr. Rapozo: Civil No. 11 -1 -0098. You have not received that complaint? Mr. Sheehan: No, sir. Mr. Rapozo: You haven't been served? Mr. Sheehan: Nor has my attorney, Richard Wilson. So I really don't know what it's all about, but I would just like to think I'm ... I thought we had a better understanding. I thought we were going to try do this in a friendly manner. That's not the way I would do it in a friendly manner. Mr. Rapozo: Well, I think that's why we approved the resolution back in January, but that's interesting. Okay. Mr. Sheehan: So I'd like to encourage somehow if you're able to re- establish friendly dialogue, I'd be very happy to engage with someone. Mr. Rapozo: I think the Chair made that point two weeks ago. Okay, thank you. Mr. Sheehan: Thank you. Council Chair Furfaro: Wait. Mr. Sheehan: Oh, sorry, sir. Council Chair Furfaro: Vice Chair Yukimura. Ms. Yukimura: Hi Mike. So if the county sends you a formal offer on one of your parcels, would you respond with a counter offer or something? Are you willing to do that? Mr. Sheehan: Certainly. Ms. Yukimura: Okay, so ... I mean because that's kind of the way it could work. One side makes an offer, you counter, and then you talk about where you might meet. COUNCIL MEETING -87- October 5, 2011 Mr. Sheehan: Ms. Yukimura: Yup. Okay, that's... Mr. Sheehan: An appraiser came out and I showed him the restroom complex and I showed him a really neat wash down facility. It's unique on the island of Kauai and I offered to build that 25 years ago to filter any and all wastewater, gasoline and oil. It cost $250,000.00 back then. You couldn't build it for a million dollars today and it would be really a shame not to utilize that and no mention of it in the appraisal, no concern in the offer. And in the last offer it says we're not going to tell you what we're going to do with the property; we're not going to tell you what we're going to do with the improvements; just take it or leave it. Ms. Yukimura: So there was an offer made by the county? Mr. Sheehan: Well, sort of. Council Chair Furfaro: Excuse me, Councilwoman. Ms. Yukimura: All right. Council Chair Furfaro: I'm going to stop the questioning right there. I think we need to go into our session, Mike. Mr. Sheehan: Okay. Council Chair Furfaro: I will just close it with one question. When you said you never received an offer, does that include your attorney? Mr. Sheehan: Well, an offer that was considered an offer, that people would consider it an offer. I mean we got a letter back saying, we'll give you this much money, but it didn't include anything for components. Council Chair Furfaro: I understand your point. I understand your point. Mr. Sheehan: An incomplete one, so. Council Chair Furfaro: I'm going to end the questions right there. We have an opportunity to speak with our attorney. Mr. Sheehan: Thank you very much. Council Chair Furfaro: Okay, is there anyone else that would like to speak on this item? Mr. Imparato? CARL IMPARATO: Aloha, Councilmembers, my name is Carl Imparato and as a Hanalei resident I just wanted to say that Black Pot Beach Park is one of the crown jewels of the north shore parks, but it's already way overcrowded and in the discussion we had earlier about the impacts of all of the transient accommodation units that are approved but not yet built, we can expect when they do get built, 33% to 50% increase in the number of tourists and just about every tourist to Kauai comes to Black Pot and that's fine. But it's overcrowded. And so I just wanted to thank the council for giving attention to Hanalei and considering the expansion of Black Pot. I urge the council to proceed with the expansion by COUNCIL MEETING -88- October 5, 2011 acquiring the river front land next to Black Pot as quickly as possible because although the economy is down, actually on the north shore I doubt that we've really seen too much of a recession in terms of the visitors up there. So please proceed as quickly as possible so that the community and all of Kaua`i's residents and all of KauaTs visitors can benefit as soon as possible. And if it takes an executive session to do that, then I urge you to go into executive session. Thank you. Council Chair Furfaro: Thank you, Carl. Is there anyone else that would like to testify on this item? If not, I do want to say that we did approve going into an executive session earlier to have dialogue with our attorneys. I also want to point out that Councilwoman Yukimura is adjusting the windows here... It only opens on one side I think. Oh no, there we go. It's right down the beam. Okay. Now the matter will come out of executive discussion with us and we will readdress item 286 in public forum after we have our executive session. So thank you very much. There being no objections, the meeting was recessed at 6:07 p.m. The meeting was called back to order at 6:53 p.m., and proceeded as follows: Council Chair Furfaro: Okay, we are back from our session. C 2011 -286 Request (09/27/2011) from the Office of the County Attorney for authorization to expend funds up to $75,000.00 to retain special counsel to represent the County of Kauai in County of Kauai vs. Michael Guard Sheehan, et al., Civil No. 11 -1 -0098 (Condemnation), Fifth Circuit Court, and related matters: Mr. Bynum moved to approve C 2011 -286, seconded by Ms. Yukimura. Council Chair Furfaro: Members, before I have discussion for ourselves, is there anyone in the audience that would like to speak on this item? There being no objections, the rules were suspended. RICHARD WILSON: May I approach? Council Chair Furfaro: Yes. Mr. Wilson: Mr. Chair. Council Chair Furfaro: Please sit down and introduce yourself first. Mr. Wilson: I forgot, I was here earlier, I forgot the new system. Richard Wilson. I represent Mr. Sheehan. I understand Mr. Sheehan has testified or given testimony earlier. Unfortunately I had a preliminary injunction hearing in the Fifth Circuit today. I wasn't able to stay the whole time. If there are any additional questions, I spoke with Mr. Sheehan while you folks were in executive session about the discussions with the county and the administration. I would like to say, although I was not here two weeks ago, I think it was Councilwoman Yukimura who indicated that she was hoping for some good news because when we met with you folks, I believe it was January /February of this year, I advised the council that this is a friendly condemnation that Mr. Sheehan was interested in. It's not the entire of what we've called the boatyard but a significant portion to sell to the county and while the county, well the administration, wanted a resolution from the council allowing the county attorney's office to enter into negotiations, we had had several discussions. Unfortunately and again if I'm paraphrasing because I COUNCIL MEETING -89- October 5, 2011 wasn't here two weeks ago, in terms of negotiations, essentially the county administration's position has been black and white with Mr. Sheehan. A certain price for the land only, raw land. When I raised three issues having to do with improvements on the property, such as wash down, there's a canoe hale, there's bathrooms, there's a shower facility, so on and so forth, I was advised by the county attorneys that it's all included, even though their appraisal, which if you look at raw land, we did an appraisal... we're not very far apart, but we're buying it all and it's included in the price. The second issue had to do with reasonable uses, restrictions, so on and so forth because obviously the Sheehans live adjacent to the property. There is Weke Road and there is an easement and the Sheehan family is across the street and we wanted to be in negotiations. As we said, these were friendly negotiations about uses, restrictions, so on and so forth. I was advised by the county attorney's office that no, we're not going to engage in those discussions. Mr. Sheehan is selling property and that's it. The third thing as this council's well aware of back in 2007 when we first came and discussed with certain members of the council about Mr. Sheehan's permits, I'm sure you're all aware that the permits were revoked. It was affirmed by Judge Watanabe. We will be actually filing an appeal with the Intermediate Court of Appeals. I have made it very, very clear that that was the last, for a federal case, the last takings. And that has really given us a right of action under federal law and I've made it clear that we will be filing a federal action. Part of the valuation for permits is Mr. Sheehan doesn't want to sue the county. He never has. He's been forced to do it. Under the circumstances there's value for the permits because that would presume that the administration that is buying the property and the boatyard would want to have it released. If we're going to buy it, we're done. I was advised by the county his permits, that means nothing. Essentially implicitly if you want to sue us, go ahead and sue us. So in terms of negotiations, there have been no negotiations. And I find it particularly concerning and troublesome that after the meeting two weeks ago where members of the council essentially questioned whether there had been negotiations and I believe implicitly it was "start to negotiate." There has been nothing. Mr. Nakamura: Three minutes, Mr. Chair. Mr. Wilson: Now I have had discussions with members of the county attorney's office. Tangentially we raised the issue of the boatyard. But I was never contacted. Mr. Sheehan was never contacted, not that they would because he has counsel. But no one has ever contacted me and said, you know what, okay, we need to negotiate these issues... Council Chair Furfaro: Excuse me, Mr. Wilson, that's your first three minutes. I'll let you continue for three more minutes. Mr. Wilson: Okay, thank you. There has been no further negotiation and not even a request to enter into negotiations. Mr. Sheehan's made it very, very clear and so have I that this is subject to mediation. Let's sit down and talk about it because we've been pretty fair and very forthright with members of the council and with the council chair about what our intentions are. But there has never been a reciprocal request by the administration through the county attorney's office. COUNCIL MEETING -90- October 5, 2011 The last thing I would sit back and say is until two weeks ago I was not aware a lawsuit had been filed for condemnation against Mr. Sheehan. I've not been served with that complaint. That complaint is four months old. I find it very suspect that when we have advised as did the administration to this council that this is a friendly condemnation that we'd be sued four months ago, not having been served, you folks apparently not having been advised, and at this point in time being requested. It's not a cap of $75,000. That's the first installment. Now, it's difficult for Mr. Sheehan who has made it very clear to you Mr. Chair as well as members of this council that he wants to do what's right for the community and sell a big portion of the property. And what does he find? He's being used again on this very issue that the county administration refuses to negotiate in good faith. Now that's where we are right now and it's very, very disconcerting to me as his counsel. And I will tell you this, member of the council, Mr. Chair, I will do whatever is necessary on Mr. Sheehan's behalf to get justice for him. I will do whatever is necessary to protect his interest and I do find it very difficult to accept after he's come to the council, has worked with members of this council. We may disagree in the past, we'll probably disagree in the future, but on this issue we all agree and he finds himself sued again, not having been served, and not even being informed that there is a lawsuit, and apparently you folks weren't advised also. If there's any questions, Mr. Chair, I would be more than willing to answer them, and members of the council. Council Chair Furfaro: Okay. Thank you very much for your commentary. First of all I want to clear the record. Mr. Sheehan has never come directly to me as you just testified to speak about a settlement. I want to make sure the record is clear on that, very clear. Mr. Wilson: I did not mean, Mr. Chair, that he would have come out of anything formal as to the council indicating he's never... and let me be clear because you're right. I don't want the record to be muddied or not clear at all. He's never come to any member of the council indirectly off the record and said, by the way. It has been formal. We all agree on that. And I was not trying to imply there was some behind the scenes... Council Chair Furfaro: Well, that's how it came across. Mr. Wilson: No, no, I didn't. Chairman Furfaro, I would never even imply that that was the case. I didn't mean it that way. But in the formal sense of coming before the commission when I testified and that was back in January or February, I'm not really certain, but earlier this year, it has always been through formal channels. Nothing has been around the scenes or anything else, sir, yes. Council Chair Furfaro: Okay, I see Mr. Sheehan often in Hanalei. I come from a Hanalei family. Mr. Wilson: I know you do. Council Chair Furfaro: We try to live aloha, be friendly. I like your terms here about trying to keep this friendly. But our motion today about securing special legal advice on the next steps I would hope would also encourage you to continue talking to our county attorney's office. I didn't pose you a question, sir. I just made a statement. I want to leave it at that. COUNCIL MEETING -91- October 5, 2011 Mr. Wilson: Chair Furfaro, it is always our intent and it has been Mr. Sheehan's intent irrespective of how it's been played in the media especially on this issue to do what's pono and what's right in Hanalei with expanding Black Pot Beach Park. The difficulty from a practical standpoint and members of the council is this, a lawsuit necessarily incurs attorney's fees and costs. It is unfortunate that by doing that instead of...back up one second. I know my time's up, but if you back up a second, if this council were advised before a lawsuit was filed and was told that somehow Mr. Wilson and Mr. Sheehan had reneged on intent on an agreement to work in good faith with the county, knowing this council, the members of this council, I would suspect that either Mr. Sheehan or myself would have been called in and we would have been questioned based on the representations. The difficult part is that step has been passed. Now there is a lawsuit. Unless a lawsuit is stayed or otherwise dismissed, Mr. Sheehan is going to have to retain me. I have been his personal counsel for 10 years. He's going to retain me to defend him. There is no way around that and that is the reality. A lawsuit costs money and it's very, very difficult I think for Mr. Sheehan to sit back and say, I still want to do what's pono. I want Black Pot to be expanded. I want to negotiate irrespective of the administration's unwillingness to engage in good faith negotiations. Yet I have to pay my... Council Chair Furfaro: I'm going to leave it at that with you, Rich, because I didn't pose any question. Mr. Wilson: I understand, Chair. Council Chair Furfaro: I want to thank you for indicating to this council that it could be more than $75,000. I think this council realizes that, but I would encourage dialogue to continue whether we have special counsel or not. Mr. Wilson: May I give one Parthian comment, sir? Council Chair Furfaro: I'm going to give you that one parting comment. Mr. Wilson: My parting comment would be this: that this council consider retaining a mediator. There is dispute prevention resolution. They're retired judges, well respected attorneys who have done this for years. Instead of spending money for independent counsel, direct money to be spent on a mediator. I can guarantee you, with my client sitting right over there, that we would welcome the opportunity to sit down with this council directly. That's what we want to do for the people of Kauai to be pono in Hanalei. And I can guarantee we would agree and I would agree on Mr. Sheehan's behalf right now that we would sit down, mediate and deal with all the issues that are not only pertinent for the people of Hanalei and for you folks as councilmembers that represent Kauai, but also for Mr. Sheehan and his family. And that's the best I can do, sir. Council Chair Furfaro: Thank you and I'm going to relieve you from the stand after we have a couple questions. But I do not want to expose our executive session and your comment about us securing a mediator, etc., was heard, okay. I don't think I would continue to encourage you to talk to our county attorney's office and/or our special counsel, which is the item tonight on the agenda. Mr. Wilson: Thank you, sir. Council Chair Furfaro: Vice Chair Yukimura. COUNCIL MEETING -92- October 5, 2011 Ms. Yukimura: Yes, Mr. Wilson, thank you for your testimony and as a follow -up to my question to Mr. Sheehan before we went into executive session and out of my wish like yours that this be a friendly process, outside of the courtroom, my question is would it be possible for you folks to give a counter offer to the county in the next few weeks or so to try to move this thing along? Mr. Wilson: Vice Chair Yukimura, it would be. What I have advised the county attorney's office is it's very difficult in light of the status with respect to the permits. The reason why we haven't... Council Chair Furfaro: She didn't ask you any questions about the permit. The question was very clear and I heard the answer. Ms. Yukimura: Mr. Chair, I want to suggest that maybe you could do a counter offer with two parts and that might start some negotiation. Mr. Wilson: Vice Chair Yukimura, in the spirit of compromise, I will do my utmost. I can't say that it's going to be the sort of offer that is black and white, but I will do my utmost in good faith in the spirit of compromise and negotiation. Council Chair Furfaro: Mr. Wilson, I need to focus this dialogue and I will cut off members. We need to focus this dialogue on the bill that's in front of us which is special counsel. Mr. Wilson: Yes, sir. Council Chair Furfaro: I've heard about your response to us wanting to keep it friendly. Let's leave it at that. Mr. Rapozo. Mr. Rapozo: He already answered my question. Council Chair Furfaro: Okay, thank you very much for the time and I'm going to see if there's any other public testimony. Mr. Wilson: The one thing though, Mr. Chair, is I have to catch a flight to go back home and see the kids. If there's any other questions, I don't want to take it out of parliamentary procedure and out of order, but if there is any question that anybody has, I have to leave and catch a flight. I just want to advise you, Mr. Chair. Council Chair Furfaro: I have no more questions, but I encourage you to continue dialogue with our county attorney's office regardless of the outcome of this (inaudible). Mr. Wilson: Thank you, Mr. Chair. Members of the Council, thank you. Council Chair Furfaro: Is there anyone else in the audience that wishes to speak? Carl? CARL IMPARATO: Aloha Councilmembers, my name is Carl Imparato and as a Hanalei resident I feel that it's necessary to respond to some of the comments. This is hopefully not tangential to what you're talking about tonight, but Mr. Wilson talked about good faith, people of Hanalei, doing what's right for the COUNCIL MEETING -93- October 5, 2011 community. I just want to make sure that the councilmembers know what is going on in Hanalei, that if you go to Hanalei Town, the Hanalei Community Association has worked for years to get rid of illegal signs. The only place you'll see illegal sandwich board signs in Hanalei now is in front of Mr. Sheehan's property. There are five or six of them. In the last month and you can see this in the newspaper, there's a Hanalei River Fair on Mr. Sheehan's property. It's a brand new commercial use, 15 -20 vendors on Sundays, a new commercial use. There are bikini sales. There's food sales. There's a Hanalei Surf School that's recent. There's a new sign for outrigger canoe rides, all of these commercial uses on that property. Now my understanding is that they're not allowed under whatever permits, but that's a separate issue. I just want to make sure and I know that the reason for any acquisition of the property is to expand Black Pot, so this is sort of tangential. What I would want to basically say here is that this has got to end and I would urge you to do what ... which (inaudible) in a most expeditious manner to acquire the Black Pot property so that the park can be expanded and as a sort of tangential benefit that some of these other problems that are escalating on a weekly basis in Hanalei can be put to an end. Thank you. Council Chair Furfaro: Thank you, Carl. I'm not going to permit any questions directed at you on those activities. The item on the agenda here is about us securing funds. Mr. Rapozo. Mr. Rapozo: Thank you. Carl, I have a question specifically pertaining to this request. Would you support an attempt by the county to move in the way of mediation or some type of non - litigated resolution, maybe with a time period of 30 days to try to attempt that avenue only because the cost of condemnation litigation is going to be extreme, especially with the complexity of this case? The request today is for $75,000, but as you can imagine that would be substantially higher. So I guess I know because you're asking us to hurry up and rush and I'm saying, hey, would it be a problem in your mind if we... You heard the attorney as well as Mr. Sheehan both say they're willing to enter into some sort of organized mediation, I'll call it, whether it's the Alternative Dispute Board or whoever it is. Is that something that you would be open to with a finite period of let's say 30 days? Mr. Imparato: I understand that we walk in different shoes, you and I, the council and I. My answer is that I would not support that because I don't believe it would be productive. I believe there's been lots of bad faith shown by the continual escalation in commercial activities that are going on over there, that 30 days is just more time for more commercial activities to surface. So coming from that background, I personally would feel that I would just be ... if I were in your shoes I'd be taken for a ride. But I understand that you see this from a different perspective than I do. So... Mr. Rapozo: Yeah, because it's the people's money. I mean it's money, it's a lot of money. That's my concern. Mr. Imparato: And if I had thought that there would be one iota of productive output, potential for one iota of productive output, I would probably agree with what you're saying. But since this has gone on for years since we've heard about offers to sell the property for years —I have personally heard that from Mr. Sheehan for at least the last four years —I can't imagine why the next 30 days would change anything. But that's just my perspective on that. COUNCIL MEETING -94- October 5, 2011 Council Chair Furfaro: Thank you for answering the question. Carl, if we have no other questions of you, I'm going to call the meeting back to order. Did you have a question for Carl? Okay, very good. I'm going to call the meeting back to order. There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: Mr. Clerk, first could you read ... we have a motion and a second on the money. Could you read that again? Mr. Nakamura: Council Chair, there's a motion and a second to approve communication C 2011 -286. C 2011 -286 Request (09/27/2011) from the Office of the County Attorney for authorization to expend funds up to $75,000.00 to retain special counsel to represent the County of Kauai in County of Kauai vs. Michael Guard Sheehan, et al., Civil No. 11 -1 -0098 (Condemnation), Fifth Circuit Court, and related matters. Council Chair Furfaro: Thank you. Members, is there discussion? Vice Chair Yukimura. Ms. Yukimura: Yes, Mr. Chair. Council Chair Furfaro: You need to put your mike on. Ms. Yukimura: Sorry, I'm contemplating proposing an amendment to allow part of the $75,000 to be used, in the discretion of our attorneys, for mediation so that it will give them some flexibility. I'm a firm believer in mediation and I think it can proceed parallel, it can proceed for the next 30 days as suggested by Councilmember Rapozo. It would be in the discretion of the county attorney's office, but I think it would give them flexibility. Council Chair Furfaro: I will say that if the county attorney's office is asking for that fund, but we do want to put some money in for mediation, I will entertain a separate bill next week. Ms. Yukimura: Oh, Mr. Chair, I think the time is so limited and they're not going to spend the $75,000 all at once and so if we give them the leeway tonight by just expanding the scope of the $75,000, they'll be able to use it now because I think if it's going to be used at all, in the next 30 days is probably the best time. Council Chair Furfaro: Understood and I'm open to another... if you want to amend the $75,000 and make it $100,000 right now? Ms. Yukimura: Oh, just say that part of the $75,000 could be used for counsel and/or mediation in the discretion of the county attorney. Council Chair Furfaro: Okay, that dialogue is there. Is there a second to... Ms. Yukimura: Well, before I make the motion, if we want to... Council Chair Furfaro: Let's have a motion so we can discuss it, everyone. COUNCIL MEETING -95- October 5, 2011 Ms. Yukimura: Council Chair Furfaro: Ms. Yukimura: Okay, all right, thank you, Mr. Chair. We can't discuss it without having a second here. That is correct. Council Chair Furfaro: I think those are the parliamentary procedures. So is there a second for Council Vice Chair Yukimura's... Ms. Nakamura: I'll second it. Ms. Yukimura moved to amend C 2011 -286 by adding to the scope of the $75,000, that it be used for special counsel and/or mediation at the discretion of the county attorney, seconded by Ms. Nakamura. Council Chair Furfaro: Thank you. Okay, now we can have discussion. Mr. Rapozo. Mr. Rapozo: I'm shocked that we're even putting more money in there, but... Council Chair Furfaro: We're not. She's saying in the parameters of the $75,000. Ms. Yukimura: Correct, thank you. Mr. Rapozo: However. I am not going to be supporting any of the funding today and let me explain why. On January 12 the county attorney came to us with a request for a resolution for condemnation and during that hearing on January 12 I asked a specific question of the county attorney's office and it was Attorney Amy Esaki. The specific question was, will this require funding. Will this, in fact and I can even read it. I said, "Does that entail any kind of cost where we're going to retain special counsel for eminent domain ?" And the answer was no. I was led to believe on January 12 that in fact the condemnation resolution was so that we could enter negotiations and at that point we had been assured that negotiations had already begun; it was informal. But to make it formal, they needed the resolution and that was really all they wanted to do and there are several references to that in the minutes and the minutes are available to anybody that wants it. Although obviously we cannot discuss what was stated in executive session, but let me just say I don't feel that the county made an honest effort or a good faith effort in negotiating. They have made a few attempts, but I don't believe that we made a good enough effort in trying to get to the discussion of how we can acquire this land. I want to buy the land. Don't get me wrong. I want this county to purchase that land and I want it be done in a fair manner. But we have an opportunity here to come to an agreement through a cheaper method and it would be through mediation or some kind of dispute resolution without going to special counsel. Seventy -five thousand dollars or one - hundred thousand, whatever is being proposed, $75,000 is just the start. Condemnation proceeding is not going to end at $75,000, especially with this complicated case. It's going to be six figures. I mean hopefully not a million, but that's not unreasonable to believe that it could reach the seven figure for a piece of land. And I'm saying let's exhaust all our avenues first. Let's try mediation. Let's try Alternative Dispute Resolution. If that doesn't work and I'm looking for a 30 -day period. If Mr. Sheehan is not willing to enter into an COUNCIL MEETING -96- October 5, 2011 effective dispute resolution process or mediation process, then I'll support the money. But at this point and again, from what I've seen and what we've talked about in executive session, I don't feel we did enough; the county didn't do enough. And I know some of you disagree. But in my opinion, when we assign that attorney, once we hire that condemnation attorney, who is a specialist, and they are not cheap, then we have committed and I want to make sure that we've exhausted all means first before we make that commitment. So I will not be supporting the request for funds. Again, I guess I was fooled. I was led to believe that the resolution was simply to do negotiation and I was assured that it wouldn't have cost money. But today we find out that there's going to be a need for some funds. So I'm not going to be supporting it at this time. I'm hoping that I can get some consensus and maybe defer it for a month, 30 days, and have the county attorney come back with a report to us on their efforts and if at that point Mr. Sheehan is not willing to participate, then I'd definitely support the funds. Thank you. Council Chair Furfaro: Okay, so everybody's clear, we need five votes tonight. We do not get five votes, this becomes the special order of the day at the next council meeting. I have to tell you we need to take action that gets people to the table. I've been dealing with this ... I'm 63 years old. I've been dealing with this since I was 29. My father -in -law was the only registered Coast Guard Captain that navigated and set ground rules for the Hanalei Ocean recreation area back in 1968. I understand Mr. Rapozo's commentary. I would hope that window of opportunity exists, but I do hope I can get five votes tonight at the request of the county attorney. Mr. Bynum. Mr. Bynum: (Inaudible) but this has been going on ... I mean I've been here 21 years and I remember reading about this the first week I got here. And so we need to move this forward. I think I happen to feel like the county has acted in good faith. I think the ball is not in our court at the moment and this, I think, will move things forward and it doesn't preclude any other outcomes. So I hope we also come to five votes tonight. Council Chair Furfaro: Is there anyone else that wishes to speak? Ms. Yukimura: Mr. Chair, we are speaking on the amendment first, yeah, because there's an amendment on the floor? So we need to pass that by four votes, I believe. Council Chair Furfaro: The amendment gets passed by four. The request needs to get... Ms. Yukimura: Five votes. So I'm ready to vote on the amendment. Council Chair Furfaro: Anyone else who wants to speak on the amendment? Mr. Kuali`i: I need to hear it again. Council Chair Furfaro: Would you so state your... Ms. Yukimura: Yes, my motion was to amend by allowing a portion of the $75,000, in the discretion of the county attorney, to be used for mediation if they deemed that useful toward a successful negotiation. COUNCIL MEETING -97- October 5, 2011 Council Chair Furfaro: And we had a second from Councilwoman Nakamura. Thank you. Mr. Bynum. Mr. Bynum: I think that amendment sounds reasonable and I invite the county attorney to wave or something if they have any objection to that. Because it's at the discretion and it just opens a door, I can support that. Council Chair Furfaro: Councilmember Kuali`i, would you like to have a (inaudible) since it's been restated? Mr. Kuali`i: No, I'm clear on the amendment and it's what I thought when I first heard it. I believe that Dispute Resolution needs to happen. So the amendment does not guarantee that it will because it's only approving the original amount and it's leaving it at the attorney's discretion, so I cannot support the amendment. Council Chair Furfaro: Vice Chair Yukimura. Ms. Yukimura: Yes, Mr. Chair, I'd like to ask if we could suspend the rules and have the county attorneys... at least see if we can get some assurance from them that they will exercise all efforts to have that. Council Chair Furfaro: Okay. Based on that note, I'll suspend the rules and restate the request from, I believe, what appears two councilmembers, if we can get some assurances on the $75,000 that would also be used to initiate a resolution process to have some third -party negotiations. There being no objections, the rules were suspended. MAUNA YEA TRASK, Deputy County Attorney: For the record, Deputy County Attorney Mauna Kea Trask, on behalf of the county attorney's office. Speaking with the County Attorney Al Castillo, we do agree with that. Council Chair Furfaro: Okay, thank you. Mr. Kuali`i, does that satisfy your query? Mr. Kuali`i: It does not. I want to see it separated. Council Chair Furfaro: Okay, we'll leave it at that. Thank you, county attorney. Mr. Rapozo: I had a question. Council Chair Furfaro: For the county attorney? Mr. Rapozo: Yes. Council Chair Furfaro: County attorney, we have a question from Mr. Rapozo. Mr. Rapozo: Mauna Kea, was your intention to hire the special counsel to process the Dispute Resolution or was it your office is going to do the Dispute Resolution arrangements? COUNCIL MEETING -98- October 5, 2011 Mr. Trask: Well, we had this discussion first. I didn't think about it in that much detail, but I can assure you that we would explore Alternative Resolution because we would like this to end as well. I mean just like you stated, Councilmember Rapozo, I'm clear the council wants to purchase the property, the administration wants to purchase the property, and we're trying to facilitate that. Mr. Rapozo: Okay, but in other words you could have two parallels going. You could actually go out and hire a special counsel and go to Dispute Resolution. Mr. Trask: Yeah, we could hire the special counsel and he could do the Dispute Resolution and that could be going on. There's so many contingencies. It's difficult to say. Mr. Rapozo: But I think that Center for Dispute Resolution or whatever it's called, I think the reason for going there was because it's free. Mr. Trask: And we have to look at, of course, speak with them too. How they'd like to do it. Mr. Rapozo: Okay, thank you. Council Chair Furfaro: Thank you very much. Vice Chair Yukimura, you have another question for the county attorney? Ms. Yukimura: No, I'll save it for the vote. Council Chair Furfaro: Okay, thank you for clarifying that. Thirty years ago I had hair like you too. Mr. Trask: Thank you. There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: Okay, did you want the floor? Ms. Yukimura: I just wanted to say that I was on the Board of the Center for Alternative Dispute Resolution and I would highly recommend them. But I also know they have certain restrictions that they have to follow and I also know that sometimes they've declined my request for services because they've just been so busy. And so we can't have the county attorney coming back after they try one thing and then come back again and try ... that's really not the proper way to appropriate money. So we want to highly recommend them but also keep it flexible enough so that if for some reason they can't do the mediation that there's some flexibility in seeking out some other people. And even Mr. Wilson himself said there are some other mediators who could do this work. Council Chair Furfaro: Okay, if there's no further dialogue, I have an amendment on the floor and let's vote on that and let's take a voice vote first. Mr. Clerk and this amendment only needs four votes. COUNCIL MEETING -99- October 5, 2011 Mr. Nakamura: Correct, Mr. Chair, the motion is to amend the main motion to approve to allow the county attorney the flexibility to use the approved amount for either special counsel or alternative dispute resolution subject to discretion of the county attorney. Would you like a roll call, Chair? Council Chair Furfaro: Yes, roll call. The motion to amend C 2011 -286 by adding to the scope of the $75,000, that it be used for special counsel and/or mediation at the discretion of the county attorney was then put and carried by the following vote: FOR AMENDMENT: Bynum, Nakamura, Yukimura, Furfaro TOTAL — 4, AGAINST AMENDMENT: Kuali`i, Rapozo TOTAL — 2, EXCUSED & NOT VOTING: Chang TOTAL —1. Council Chair Furfaro: Thank you. So now we have an amendment that passed. I'll take some more commentary at this point. Mr. Bynum, you are recognized. Mr. Bynum: I think we all know that this has been going on for many years. Our county attorney and I believe attorneys for Mr. Sheehan have been engaged in discussions. The county attorney is coming to us at this point and saying, hey, this is a complex issue; we're totally open to a resolution that doesn't involve litigation. As I said earlier and just for the record, the county attorney was nodding. Approving these funds doesn't close any doors on those alternatives. And I lived through an era here where we gave special counsel for virtually everything and under this county attorney it's rare that we get that request. And so when they come to us and say, hey, we need a level of expertise to move any of these regardless of outcome and then also Mr. Furfaro, who's been engaged in this for half of his life and has been on this council throughout this most recent period, is recommending to move forward, I don't know why we wouldn't support the county attorney and the Council Chair in this request. So I hope we can come up with five votes today. Council Chair Furfaro: Okay, thank you very much. Any more dialogue before I call for the vote? Vice Chair Yukimura. Ms. Yukimura: I just want to say that the vision of acquiring this property and expanding Black Pot Beach Park is a really incredible thing for the community and I feel that a vote for the $75,000 would be moving in that direction, especially with the fact that a mediation can be included in this process. So I want to urge my colleagues to vote for it. Council Chair Furfaro: Thank you. Councilmember Kuali`i. Mr. Kuali`i: Thank you, Mr. Chair. I just want to say that I express empathy to those of you who have years of history and frustration, but for me, I'm looking at this over the last nine months and with the condemnation resolution having been approved back in January. And I think in the last nine months the county did not do enough to do thorough negotiations and if at any time things were left hanging, that's all wasted time. So at least a third, maybe even a half of those nine months was left waiting and hanging and I think that's not negotiations. Both sides have to get responses from the other sides and follow up. And for me, before I would want to approve such a large amount of money of $75,000, especially when it would end up being a lot more, I want to make sure that COUNCIL MEETING -100- October 5, 2011 we've attempted full, honest negotiations and also dispute mediation or resolution, one of those processes that it's clear it has not been done. And so I cannot support it at this time. Council Chair Furfaro: Okay, is there anyone else that would like to speak before I call for the vote? I want to get some clarification before I call for the next speaker. Was I right in my assumptions that if we don't get five votes this will return as a special order of the day and will that be in two weeks? Mr. Nakamura: That's my understanding, Council Chair... Council Chair Furfaro: Okay, so I've interpreted the rules appropriately? Mr. Nakamura: Yes. Council Chair Furfaro: Thank you. Councilwoman Nakamura. Ms. Nakamura: I will support the amendment and I would urge Mr. Sheehan to submit a counter offer and I would urge the county attorneys to be open to negotiations in the interim. Council Chair Furfaro: Thank you. Is there anyone else that wishes to speak before I speak? Mr. Rapozo. Mr. Rapozo: I just have a question and it's really for the clerk. I guess I'm trying to think about how does it show up as the special order of the day, but that can be done offline. Council Chair Furfaro: No, we should do it now so that everybody understands. You answered my question. Mr. Clerk, could you please come up. Mr. Rapozo: Is it because of the absence? Mr. Nakamura: Yes. Mr. Rapozo: Okay. Council Chair Furfaro: You know, I want to let you know I'm getting to be an expert at reading these rules. We had a bill today that we had an absentee when Mr. Bynum was out. It ended up coming back as the special order of the day. So you know, I'm getting pretty good at sensing what's going on and I just wanted to reconfirm this and thank you for posing the question to the clerk. My interpretation was correct. Is there anybody else that wants to speak before I speak? No. Before I call for the vote, I want to say to you for me this is more than having empathy for the cause. When you have empathy I think sometimes you need to recognize you walk in other people's shoes. I have a deep love and aloha for Hanalei, as I believe Mr. Sheehan does. And I think getting to a point that we can acquire this land for public use is just a really outstanding statement about what we do in our community for our people. Again, I want to reiterate I believe Mr. Sheehan has an opportunity here to continue dialogue with the county attorney's office, but I certainly was hoping to get to five votes tonight. You know I've raised my children along that river. It has gotten to the point that we need to really work for the appropriate preservation of this area for its significant value that makes up Hanalei. I used to come with my aunt folks with still being in school COUNCIL MEETING _101- October 5, 2011 and go up the river and this is with the Johnson -Pali family, and go all the way up to the reservoir and the waterfalls and catch `opae by hand, enjoy them on the beach later, spending a lot of time with Grandpa Henry knowing the currents, the names of the reef, and the value of the river. Kiki`ula, the red spring is what it's referred to. And so if I don't get five votes tonight for the request made by the county attorney, I'm going to be saddened, but I'm hopeful that we can continue the negotiation. I think Mr. Sheehan can recognize what I'm talking about with my experiences at the river and the history with grandpa for a public benefit, for a public benefit, and also being fair and reasonable. So I hope we get there, but if not please continue the dialogue. Can I call for the vote, a roll call please. The motion to approve C 2011 -286, as amended, was then put, and failed by the following vote: FOR APPROVAL: Bynum, Nakamura, Yukimura, Furfaro TOTAL — 4, AGAINST APPROVAL: Kuali`i, Rapozo TOTAL — 2, EXCUSED & NOT VOTING: Chang TOTAL —1. Council Chair Furfaro: Thank you and because of the absentee, then we will see this in two weeks as a special order of the day for the council. ADJOURNMENT. There being no further business, the meeting was adjourned at 7:36 p.m. /wa ATTACHMENT N0. 1 October 5, 2011 FLOOR AMENDMENT BILL NO. 2410, Draft 1, RELATING TO THE PERMITTING PROCESS FOR TRANSIENT ACCOMMODATION UNITS INTRODUCED BY: Nadine Nakamura 1. Amend Bill No. 2410, Draft 1 by amending the first sentence in Section 3 of the bill to read as follows: "SECTION 3. Chapter 8 of the Kauai County Code 1987, as amended, is hereby amended by the addition of a new Article 28 entitled "Transient Accommodation Unit Certificate Allocation Program" to read as follows:" 2. Amend Bill No. 2410, Draft 1 by amending the definition of "Substantial Sum" in Section 8 -28.1 of Section 3 to read as follows: "Substantial Sum" means an Actual Cost, including architectural, engineering, and construction costs incurred before December 5, 2008 to satisfy a condition or requirement of a zoning amendment, use permit, zoning permit, subdivision approval, or variance permit, that exceeds five hundred thousand dollars ($500,000.00), or twenty percent (20 %) of the Real Property Assessment of the Land Value for the Eligible Resort Project for the 2008- 2009 tax year as determined by the Department of Finance of the County of Kauai, whichever is less. Substantial Sum does not include any costs incurred before the approval of the Project VDA Ordinance or Project Zoning Ordinance applicable to the Eligible Resort Project." 3. Amend Bill No. 2410, Draft 1 by amending Section 8 -28.2 of Section 3 of the bill to read as follows: "Sec. 8 -28.2 Applicability. (a) Except as otherwise provided, this Article shall be applicable to any of the following permits if such permits would allow the development of more than one Transient Accommodation Unit on any lot or parcel entitled to more than one dwelling unit: (1) Use permits issued pursuant to Article 9, Article 18 or Article 20; (2) Zoning permits issued pursuant to Article 19; ATTACHMENT NO. 1 (3) Variances issued pursuant to Article 21; and (4) Subdivision approvals issued pursuant to Chapter 9 located within the Visitor Destination Area. (b) The provisions of Section 8 -28 -.3 shall not apply to: (1) the development, construction, reconstruction, repair, renovation, or use of a Permitted Project; (2) a Permitted Project that is the subject of a proposed modification, if the proposed modification does not increase the number of permitted Transient Accommodation Units and the Planning Director determines that the proposed modification does not require a new zoning permit, use permit, subdivision approval or variance permit; or (3) a Permitted Project that is the subject of a proposed modification, if the proposed modification reduces the number of permitted Transient Accommodation Units by thirty -three percent (33 %) of what was previously approved by the Planning Commission or Planning Director; provided, however, that such modification, as determined by the Director, does not create additional impacts other than those addressed by conditions outlined in the Permitted Project. (c) Individual lots entitled to more than one Transient Accommodation Unit in a previously approved subdivision shall not be exempt from the provisions of Section 8 -28.2 and 8 -28.3 with regard to any other permits, including zoning permits, use permits, subdivision approvals or variances, as required by law to construct, develop or use a Transient Accommodation Unit on the owner's lot or parcel unless the project is exempt as an Eligible Resort Project pursuant to Section 8 -28.5. (d) Notwithstanding any other provision contained in this Article 28, the boundaries of a Permitted Project may be amended by consolidating the Permitted Project with one or more adjacent lots ( "Adjacent Lot(s)") pursuant to Chapter 9 of the [KCC.] Kauai County Code, 1987, as amended. Provided, however, the number of Transient Accommodation units being applied for on the Permitted Project's property and the Adjacent Lot(s) shall not exceed the number of Transient Accommodation units authorized by the Planning Commission for the Permitted Project prior to the consolidation. Upon consolidation under these terms, the Permitted Project on the new lot or parcel shall not be subject to Section 8 -28.3. ATTACHMENT NO. 1 4. Amend Bill No. 2410, Draft 1 by amending Section 8 -28.5 of Section 3 of the bill to read as follows: "Sec. 8 -28.5 Exemption for Eligible Resort Projects. (a) The purpose of this section is to provide a process for identifying, and for registering Eligible Resort Projects that are exempt from Section 8- 28.3(a)(1). (b) The owner of any Eligible Resort Project shall have one (1) year from the effective date of this ordinance to file an application with the Planning Director to register an Eligible Resort Project as exempt from Section 8- 28.3(a)(1). The application shall include an itemization of Actual Costs with reference to exhibits containing proof of expenditures actually made before December 5, 2008. (c) The Planning Director shall approve and register as exempt any Eligible Resort Project, or portion thereof, which meets the criteria in Section 8- 28.5(c)(1) and either Section 8- 28.5(c)(2) or 8- 28.5(c)(3) below: (1) The Eligible Resort Project must be composed of one or more lots or parcels that are located in a Visitor Destination Area that was approved and established prior to December 5, 2008, pursuant to a Project VDA Ordinance or the Eligible Resort Project must be composed or one or more lots or parcels that are located in zoning districts that were approved and established prior to December 5, 2008, pursuant to a Project Zoning Ordinance. (2) Either the owner or the owner's predecessor -in- interest must have obtained the governmental approvals for and expended Substantial Sums on any of the following prior to December 5, 2008: (A) Any On Site Improvements or Off Site Improvements authorized by the Project VDA Ordinance or the Project Zoning Ordinance; or (B) Any On Site Improvements or Off Site Improvements required to be constructed pursuant to the conditions of approval contained in the Project VDA Ordinance or the Project Zoning Ordinance. (3) The owner or the owner's predecessor -in- interest must have complied with Article 3 of the Housing Policy for the County of Kaua'i (Ordinance No. 860), or paid an in -lieu fee or dedicated land ATTACHMENT N0. 1 pursuant to an affordable housing agreement with the County, prior to December 5, 2008, in fulfillment of any workforce housing or affordable housing condition contained in the Project VDA Ordinance or the Project Zoning Ordinance. (d) The owner shall have the burden of proof by a preponderance of the evidence in establishing that the Eligible Resort Project is exempt. (e) The Planning Director shall have one hundred and twenty (120) days after acceptance of a completed application to approve or deny the registration of an Eligible Resort Project as exempt. If the Planning Director denies the application, the owner may appeal to the Planning Commission pursuant to the procedures set forth in Chapter 9 of the Rules of Practice and Procedures of the Planning Commission, as amended from time to time. (f) In making a decision on any application, the Planning Director shall find that the owner or the owner's predecessors -in- interest have expended Substantial Sums [where the Actual Cost of On Site Improvements and Off Site Improvements as of December 5, 2008 exceeds Twenty percent (20 %) of the Real Property Assessment of the Land Value for the Eligible Resort Project for the 2008 -2009 tax year as determined by the Department of Finance of the County]. (g) An Eligible Resort Project that has obtained an exemption under Section 8- 28.5(c) is not exempt from obtaining any other permits required by law. (h) Notwithstanding any other provision contained in this Article 28, the boundaries of an Eligible Resort Project which is exempt under this Section 8 -28.5 ( "Exempt Project ") may be amended by consolidating the Exempt Project with one or more adjacent lots ( "Adjacent Lot(s)") pursuant to Chapter 9 of the [KCC.] Kauai County Code 1987, as amended. Provided, however, the number of Transient Accommodation units being applied for on the Exempt Project's property and the Adjacent Lot(s) shall not exceed the number of Transient Accommodation units approved by the Zoning Amendment or Planning Commission for the Exempt Project prior to the consolidation. Upon consolidation under these terms, the Exempt Project on the new lot or parcel shall be exempt pursuant to the provision of this Section 8- 28.5." 5. Amend Bill No. 2410, Draft 1 by amending Section 8 -28.6 of Section 3 of the bill to read as follows: "Sec. 8 -28.6 Promulgation of Rules and Regulations. ATTACHMENT N0. 1 Pursuant to [Hawaii] Hawaii Revised Statutes Chapter 91, as amended, the Planning Commission may promulgate rules and regulations consistent with this Article as may be necessary to implement any of the provisions of this Article." 6. Amend Bill No. 2410, Draft 1 by amending Section 5 of the bill to read as follows: "SECTION 5. This ordinance shall take effect thirty (30) days after its approval. The requirements of this ordinance shall not affect any application which has been approved by the County Council or the Commission prior to the effective date of this ordinance, or to subdivisions which have received tentative approval prior to December 5, 2008, unless there is a subsequent approval required prior to a building permit, in which case, that subsequent application shall be subject to the relevant requirements of this ordinance[, excluding subdivisions which have received tentative approval prior to the approval date of this ordinance]." (Material to be deleted is bracketed. New material is underscored.) (V: \csoffice files amendments \Bill 2410, Draft 1 \FA 10 -4 -2012. Nakamura.doc)