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Home My WebLink About07-15-2009-Doc15916 . - . . ~ . : . MINUTE S ' PLANNING COMMITTEE July 15, 2009 A meeting of the Planning Committee of the Council of the County of Kaua`i, State of Hawai`i, was called to order by Councilmember Jay Furfaro, Chair, at the Historic County Building, Room 201, Lihu`e, Kaua`i, on Wednesday, July 15, 2009, at 9:39 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Lani T. Kawahara Honorable Derek S. K. Kawakami Honorable Bill "Kaipo" Asing, Ex-Officio Member Honorable Dickie Chang, Ex-Officio Member Minutes of the June 10, 2009 Planning Committee Meetings Upon motion duly made by Councilmember Kaneshiro, seconded by Councilrnember Bynum, and unanimously carried, the Minutes of June 10, 2009 Planning Committee Meeting was approved. Minutes of the June 24, 2009 Planning Committee Meeting Upon motion duly made by . Councilmember Kaneshiro, seconded by Councilmember Bynum, and unanimously carried, the Minutes of the June 24, 2009 Planning Committee Meeting was approved. The Committee proceeded on its agenda items out of order as follows and as shown in the following Committee report which is incorporated herein by reference: Bill No. 2318 A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUA`I COUNTY CODE 1987, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Farm Worker Housing) [This item was deferred.] . JAY FURFARO, Planning Committee Chair: Now I want to acknowledge a sequence in the Planning Committee today. We will be hearing Bill 2318 first, then we will be going to Bill 2317, and then we will be going to Bill 2291. I would like to make a few statements as the Committee' Chairman on the intention...did we have a phone just go off...on the process here. First and foremost I'm going to have a member of the planning committee who was assigned to this...planning department who was assigned this particular bill to give us an overview of the revised bill that was sent back. Do we, in fact, have a member of the Planning? .He...I saw him earlier. Mr. Clerk...okay. Secondly, I'm going to ask members who have assembled amendments for the bill from last week's public testimony-we had three hours of public testimony-I'm going to ask members to circulate their amendments. And for the audience, I want to make...note that I'm asking to have it circulated so that everyone will have an opportunity to grasp what particular recommended changes came from various members of the council. The plan is then to probably take a caption break so that we can, in fact, have those amendments looked at by the audience. When we get back from the break, I will then allow public testimony, which includes the amendments that were circulated. Make sure to point out that I am not asking for these amendments to be introduced for a vote from the council. I'm asking them to be circulated so that everybody has an opportunity to look at some of the opportunities. I will then ask, after public testimony, to defer the bill for the next committee meeting so we can actually vote on the testimony and the amendments that had been submitted. Hopefully, following that the bill will go to the full council. I hope you all can follow what I plan to do as far as an overview of the bill starting with the planning department. And I will now suspend the rules for the planning department to give us a brief overview on the bill changes and recommendations that came back in 2318. ' There being no objections, the rules were suspended. BILL "KAIPO" ASING: Mr. Chairman? Mr. Furfaro: Yes, sir. Mr. Asing: Can I make a short comment? Mr. Furfaro: Yes, you may. Mr. Asing: I just want to take this opportunity, I'm sure both Councilmember Chang and myself, I'd like to thank both, not both, Louisa Wooton, Scott Pomeroy, and Bill Robertson for the tour that we took yesterday of the Moloa'a Farm area and also Louisa for the visiting the farm. I just want to thank you for showing us the area. Dickie. DICHIE CHANG: Thank you, Chair. I want to echo that also. It was extremely enlightening anci thank you for introducing us to your friends and fellow farmers out there as well as some of the workers that we had an opportunity to chat with. Thank you very much. Thank you. Mr. Asing: Thank you, Mr. Chair. Mr. Furfaro: Thank you, Chairman Asing, Member Chang. On that note, Pua, will you please read item 2318. Wilma Akiona, Council Services Secretary: Yes, Bill No. 2318, a bill for an ordinance to amend Chapter 8, Kaua`i County Code 1987, relating to the comprehensive zoning ordinance - farm worker housing bill. Mr. Furfaro: Thank you. The rules are suspended. Gentlemen, would you like to give us a short overview? IAN COSTA, Planning Director: Aloha kakahiaka, Councilmembers. Ian Costa, Planning Director, for the record. And I have with me Ka`aina Hull who worked very hard to analyze the original bill and provide recommendations that the Planning Commission endorsed and approved and is before you. So any detailed questions, I would ask Ka`aina to help answer those for you. Mr. Furfaro: You...are you going to let mister...(inaudible) Mr. Costa: I guess pursuant to what you asked, as far as an overview, maybe we'll just kind of briefly touch upon some of the issues that we encountered. ' KA`AINA HULL, Planner: Good morning, Council. 2 Mr. Furfaro: The floor is yours. Again; to the plarini_ng dir,ector; I want to share with you my expectations of the Planning Chair is to give every time we have a planning item, to give you an opportunity to express planning's concerns. Mr. Costa: Sure, thank you. Mr. Hull: To start off I guess I'll just...one thing that came up on the last day of the hearing was the conclusion of the director's report. The commission asked that special notice be given to it when it was sent up to the council. So I'll just begin by reading that conclusion specifically. "While the department concludes -that the draft bill should be approved subject to the recommended amendments, the department has reservations with the bill, specifically with the execution of said bill's enforcement. To allow landowners to build housing over and above the maximum allowable residential density allotted under the County Code is an advantageous provision for landowners that could very well open the door to misuse or abuse. Thorough scrutiny of all applications and operations will require a level of scrutiny for which the department may not have the necessary resources or staffing. In the event that misuse, abuse or noncompliance is discovered, bringing landowners and their respective uses into compliance, particularly concerning housing, is historically a contentious and at times calamitous process that demands vast amounts of time and resources... Mr. Asing: Excuse me. Mr. Hu1L• ...and in many cases remains... Mr. Asing: Excuse me. Mr. Furfaro: One moment. Mr. Asing: You have that in...in the report? Mr. Hull: Yeah. Mr. Asing: What you're reading from? Mr. Hull: Yeah. Mr. Asing: Yeah. What...what item is that? Mr. Hull: It's going to be page 17 of the Additional Findings Packet submitted to the commission. Mr. Asing: Page 17? Mr. Hull: Correct. Mr. Furfaro: Page 17, Additional Findings. Mr. Hull: Correct. Mr. Furfaro: That's where you're at. Thank you. Mr. Asing: Thank you. 3 Mr. Hull: Bring landowners and their respective uses into compliance, particularly concerning houses, is historically contentious and at times a calamitous process that demands vast amounts of time and resources and in many cases remain unresolved for several years. Enforcement of land issues is not restricted exclusively to zoning laws. It is and can be further reinforced through penalties and through the county's real property tax structures. Furthermore, adequate provisions to authorize the county to demolish and remove vacant or unocc...and/or occupied dwellings that were permitted but ceased from operating as a permitted use should accompany the proposed bill. These concerns are not to be construed as reasons for denial, but they should be, examined and considered when reviewing and taking action upon the proposed draft bill. As commission members stated why they wanted it drawn out specifically was because they were cognizant, as I'm sure you all are, of the many abuses that occur on ag lands and the potential for abuse that's...could occur within this...within the bill. And to touch on that, there are two...I'd say two key parts of the bill that the department focused on, the first part being the use permit review. As originally proposed, it was somewhat of a hybrid use permit in which if they met the standards of the bill, the use permit standards would not be required to be met. And these permit standards have generally to do with the safety, health and welfare of the community as well as the neighbors: It was...it was important that that use permit review and its full authority be returned when reviewing this app...in reviewing applications for farm worker housing. And the second is the gross sales standard. And the gross sales standard is...is really the lynch pin of the bill. The original standards that were proposed: the 50% income for, I think, it was three years and the 75% of the property being used for agricultural activities. While theoretical theoretically sound, in reality trying to actually enforce those policies, really the department would be unable to really, with those tools, differentiate between say a genuine farmer and a gentleman farmer. There's so many ifs ands or buts that could occur within what I guess you'd refer to as a floating standard really, yeah? I mean, when you have 75% of a property depends how much of that property is going to be used is if it has...if it's a 5-acre property, is he farming 3 acres; if it's a 13,000-acre property or a 10,000-acre property, it's going to require that the property owner be actively farming 7500 acres, and it...co...and..and that 7500 acres would constitute the same amount or warrant the same amount of housing as a 5-acre property with three acres in cultivation would warrant. So having those floating standards really don't help us enforce and protect against abuse. And...and on top of which to go to the 50% income...in the report it...it drew out about how that could potentially hurt small farmers. The 50% income, say a farmer who has a spouse who is working outside of the house, I mean, the farmer could be earning say $50,000 on the farm which could very well warrant farm worker housing and to have an employee on staff living on the property. However, their spouse could be earning $100,000 - $150,000 and this would disallow that small farmer to access employee housing. So having those floating rates or floating standards which are by design to be inconsistently applied, really hinder the process and...and like I stated can further allow abuses to occur. And so just to return, I mean basically the use permit which doesn't seem to be too controversial, returning it to the use permit standards. But as I understand it and I've been watching the proceedings, the salary amount or, excuse me, the gross sales requirement has been somewhat controversial. But having that dollar figure allows us to differentiate between the legitimate farmer and the gentleman farmer and...and...that...that is a main point we'd like to drive home. Mr. Furfaro: Thank you very much. I would like to take some time to share some information with my colleagues and yourself as well. Those are all excellent points about controls and quality measurements. I had requested through our office of economic development the most current statistics we could 4 have on farming on Kaua`i and I believe some may have seen this material, but I'll circulate it again. That...and these are 2007 farm statistics on Kaua`i that make up 748 farms on the island. The fact of the matter is...and this includes ranching...it . totals about 151,000 acres. It also includes the fact that there are large cane and other cultivated in...institutional crops. But the median size of the farm, in other words half of the farms are larger, half of the farms are smaller, is five acres on Kaua`i. We also know that 65% or 64.6% of the farms on Kaua`i are nine acres or less. The fact of the matter is they are broken down up to the larger ranching and sugar operations, but the net cash income from these operations on the average farm represent approximately the $10,475. These are from the KEDB as well as confirmed by our office of economic development: May. I have a... may I have copies of these passed out to the individual councilmembers as well as a copy for the planning department and leave some copies here for the public. So there...there is some statistical information here. Now, I'm going to open up some questions from the members here, if I may? Mr. Kaneshiro. DARYL W. KANESHIRO: Thank you, Chair. You know, as I was going over the bill and I know you touched on that when you first talked, Ka`aina, was about the part where we talked about the subject property in order to have farm worker housing has to use up their density first, their housing density or whatever residential density that is allowed on the parcel. If...if...I'm taking it from a farmer's perspective. You know, what we're trying to do is really encourage these people to start building residential densities first rather than to continue farming...continue farming where they're farming. But what we see here with a bill like this is saying that we are now encouraging the farmer to get his son or to get someone to start building all the densities first before...before because it says here...the way it says that you need to maximum permitted residential densities first. You have to build all of those first before you even qualify for a farm worker housing. So, I'm not certain how this is really helping the farmers when you're encouraging them to go ahead and build a house on the lot first when the farmer really wants to try to farm first and make a living or have his kids make a living first and then build. So, I'm not certain, you know, if Ian or you could answer that as to the reason why it specifically states that after your maximum permitted residential densities are built then you would now qualify for a farm worker housing. It's not saying that you can use that density to qualify for farm worker housing. You're saying that after your residential, you know... Mr. Costa: Yeah. Mr. Kaneshiro: ...permitted densities are used, now you can come in and get a farm worker housing. Mr. Costa: You know one thing I would add on that is we have a number of cases where...on ag land where structures are applied for, a barn, storage structures that actually are used as houses until either the main house can be built or...and in many cases...don't...aren't converted or...there's a long process to get them to actually use the structure as was permitted. And I think that's just one of the concerns we have because the farm worker housing would be additional housing density that would be allowed. And to then allow ones to capitalize on that prior to the right they currently would have to produce a house, whatever form it is, would just be...would just be against some... Mr. Hull: Just...just to add to that too, I think some of the...I understand your concerns, Councilman Kaneshiro, but...and then that could very well happen. Could it stimulate people to build out their densities before applying for farm worker housing? It could stimulate that, indeed. But our concern was 5 mainly for...the intent of the bill seemed to go for the farmers who are in dire need of housing but don't have it. And so what our aim was with...with that particular provision is to say if you do have it, you will. first use your farm dwelling density to put your farm workers in. You can't land bank or density bank these things for later use or for sale as residential multi-million dollar estates or whatnot. You're going to use the actual densities you have to house your employees as they're intended to do under...under HRS law. And...and that was the main principle or foundation for that provision. Mr. Kaneshiro: The...the...the problem about this bill is that when you read it and you're looking at the bill itself, you know, my interpretation of this bill is that you can't even build a farm worker housing yet until you build a residential density first. Then now you can do farm worker housing. First...the way the bill reads right here it says to be eligible for farm worker housing only when all of the subject property's respective maximum permitted residential densities are built, then you can come in for farm worker housing. So this...this...the way it's written does not give the farmer the opportunity to do exactly what you're saying. Mr. Costa: No, I think you need to remember that the whole reason the ag zoning has density is for farm dwellings; it's for farm workers. Mr. Kaneshiro: Yeah, but... Mr. Costa: So use that first. Mr. Kaneshiro: Ian... Mr. Costa: That's all we're saying. Mr. Kaneshiro: I understand what you're saying. I got three kids, okay. Eventually one of those densities when one of my sons or my daughters or whoever can afford to build a home will then put a residential housing on it. At the same time, I'm intensively farming to try to make a living to send these kids to college to get them an education and I need worker housing. So you tell me that now I'm going to have to design a house, put a house there, design a house for the future density for one of my kids in order to provide a worker housing? Mr. Costa: It can be the same house we're talking about as temporary. It doesn't have to be... Mr. Kaneshiro: But...but you know when you come in... Mr. Costa: ...the 5,000 square foot... Mr. Kaneshiro: Okay, I understand that. But you know when you come in for residential density, the code applies differently as comparable to a regular farm dwelling housing now...because basically what you're saying in this bill is that you just meet health requirements for a farm worker dwelling housing...and you only can go 600 square feet or 1200 square feet, that's the max. Mr. Costa: Well I mean I...I know and you...the example you painted is...has to do with your family, but I would say it's not out of the realm... Mr. Kaneshiro: Well.:..it's just an example. I just... 6 i • Mr. Costa: ...for someone' to say, okay, well, I want to se11...I want to...my big plan is to sell off five...four CPRs. So I need five extra worker housing so that I don't give up that potential asset. Mr. Kaneshiro: Okay. I have another typical example. You have a 5-acre parcel. You're doing extensive, extensive taro growing on a 5-acre parcel or a 10-acre parcel. On a 5-acre parcel currently densities you're allowed three, right, under the comprehensive zoning ordinance? Mr. Hull: Sure. Mr. Kaneshiro: So you got a farmer there who has a house who's doing extensive, extensive work trying to farm his land in taro 10 acres or whatever it is, but in order for him to get a farm dwelling housing, he first has to build out his residential densities on...the three houses on that 5-acre parcel and you're taking away ag land for him to do that while we're trying to encourage farmers to stay in farming. Mr. Costa: Well, I...I think it's still a perception. All we're saying is that you have, by riglit, three available to you. Why would you need to ask for more if you're not even using the three? Mr. Kaneshiro: Okay...okay, I got it. This...I think I'm working on an amendment that can address that. I just needed to see what was your thoughts as to why, you know, first fulfill the densities and so forth and do that. But I may have an amendment that can possibly address that concern. So we...so; you know, we'll...we'tl work on it. I...I just...was trying to give you some of the reasons that some of the farmers would face with the way this bill is written just the way it's written. Mr. Costa: Sure. Mr. Kaneshiro: So I think with that and what you have said, I...my amendment may be able to address some of that. Thank you. Mr. Furfaro: Okay, thank you, Mr. Kaneshiro. And just before I recognize Mr. Bynum, just to again some comments that I made earlier, should we circulate some amend...amendments, I want to make clear that these are not amendments that are introduced and later when we have actual dialogue, it will be at the following meeting if that amendment actually gets introduced. The rules do not let us...allow us to testify on the amendments until they're actually introduced. My hope is to circulate the amendments so everybody has an opportunity to digest . them. Mr. Bynum, the floor is yours. TIM BYNUM: Yeah, I just wanted to stick with the density (inaudible). Mr. Furfaro: Go right ahead. Mr. Bynum: I wanted to stick with the density to begin with and so I have a couple of questions. One is when there's a CPR that has different owners and one of them is farming, has used their density, would this rule apply for the lot where the density hadn't been used because it's one parcel, right? I didn't ask that clearly. Say you have three CPRs on one parcel, but three different 7 i ~ owners. This one is farming and they've built their farm dwelling and they're farming and they want worker housing. Do they...would this require the other two owners to build out their density prior to this lot? Mr. Furfaro: Excuse me, Mr. Bynum, would you yield the floor to me just so I can get some clarity on your question? Mr. Bynum: Sure. Mr. Furfaro: So I think what Mr. Bynum is saying, you have a CPR parcel that has five units. The five units have been sold. One of those units is, in fact, actively farming but a particular individual that bought one of the CPRs has not developed his CPR unit yet. Your question,is will all the density on the whole parcel, the tax key parcel, have. to be developed first. And Mr. Bynum, thank you for, in my mind, getting clarity to your narrative. Mr. Costa: Let...let me just say that in our review that is typical for a CPR to get approval from the real estate commission, a review and comment. That's one of the things that we are persistent on that no more units be created than available density. So, but...but by doing that and...and subsequently endorsing or concurring with the proposed CPR, we are; in fact, committing that density. It is a problem that led into that proposed amendment and is clearly one of the abuses that we see. I mean, you have a large parcel that is CPR'd into five units. Four of them are up for sale and one of them needs additional housing. Mr. Bynum: Yeah. I'm...I didn't...I'm still confused. Mr. Costa: Although I'd be...and I'm...and when we talk about parcel and...and 50 or 75% of the parcel being used, that might be a difficult example. Obviously if you have five units, there's going to have to be some coordination amongst five units to be able to farm 75% of that property. Mr. Bynum: Keep it simple for me. Mr. Costa: Because it cannot be 75% of that unit. Mr. Bynum: Okay, to keep it simple for me, let's say there's three C...three units, CPR units on one lot, right. I own Lot A and somebody else owns lot B and C. There's a total of three pieces of density on the entire parcel, right. But I'm on Lot A, I've built my house and I'm farming, right, and I'm farming that intensely and I want farm worker housing. I gotta wait for the other owners to build their properties and use that density before I can get farm worker housing? Is that what I'm hearing? Mr. Costa: Well, to some degree by the...what I tried to say is the creation and our endorsement of that creation of the CPR has already committed that density to the other units. Mr. Bynum: Right, but I'm farming this unit and I need farm worker housing. Mr. Costa: So obviously you would need... Mr. Bynum: Now my fate is subject to the other owner, right? 8 . • Mr. Costa: Well, that needs to be resolved. That's one of the inherent problems with CPR. Mr. Bynum: And is there a mechanism to resolve that? Mr. Costa: I would think...that needs to be something that needs to be addressed in the bill, whether you recognize individual units and how you...those standards apply to individual units or the overall parcel. Mr. Furfaro: I'm going to go back to Mr. Kaneshiro and then Councilwoman, did you have a question, you'll be after Mr. Kaneshiro. Mr. Kaneshiro: Basically, it's more of a clarification rather than a question. Under the real property tax keys, each CPR has a separate unit addressed to it. Each CPR can also be ag dedicated separately and each CPR is easily identified as even having just one density or two densities. So, I don't see it as a big issue in this process. I think if we reflect back and look at the tax map or go back and get the real property tax identification number of the ,property, you will find that it will be CPR Unit 1; CPR Unit 2, CPR Unit 3, and at the same time through the ag dedication bill, if you're the one CPR Unit 3, be an intensive farmer and you...even though it's all part of a lot of record of a large parcel, you can simply go in there and apply and say that, you know, we want to take this parcel out of ag dedication. But it is identified as separate units. So I don't...I don't really see this as a problem. I...I see the question he's trying to ask is that yeah, now that I've built my density on CPR Unit 1 and Unit 2 hasn't, can I really get...you know, worker housing? And if you go back to the tax map keys, the question probably can be easily be answered yes, yes... . Mr. Costa: Just bear in mind... Mr. Kaneshiro: ...because you are identified as a separate lot with a density. Mr. Costa: Okay, although that is done with respect to real property, bear in mind that the CZO's provisions and standards are applied for parcels of record. Mr. Kaneshiro: Correct, you're correct. Mr. Bynum: That's my concern. Mr. Kaneshiro: You're correct. But at the same time, the CZO parcels, you know, allows you certain densities for each unit, whether it's... . Mr. Costa: . Oh, all the setbacks and... Mr. Kaneshiro: Correct, all of those playing in. Mr. Costa: ...those are all (inaudible) parcels to property lines. Mr. Kaneshiro: So, I...I...I don't really see that as a big factor what I say as we move trying to establish this bill to address that I think. It's just my comments that I wanted to add to Mr. Bynum's question, so. Mr. Furfaro: So, Kawahara the floor is yours, then, we'll go to Mr. Asing. 9 • . Mr. Asing: Has...has...has that been cleared? I...I don...I don't think there's a...you gave an answer, Ian. Am...am I correct? You...you said that it needs to be addressed in the bill and right now the bill as it stands does not address the question that was raised by Councilmember Bynum. Am I correct? Mr. Costa: As the bill, it...we, I believe, have not recognized individual units. So as it stands right now, yes, that could be a problem. Mr. Asing: Any reason why you didn't address that on a commission level since it is a problem? I think Councilmember Bynum brings up a ...a good valid point and an additional question to that is...is are those parcels tied to the association because I believe that those parcels that come under the CPR would be I guess tied to an association. Am I correct? Mr. Costa: That would be based in the CPR documents for the overall parcel, right. Mr. Asing: Yes, so that's another layer that needs to be considered and have you considered that and is that...does that need to be cleared also through the association? Mr. Costa: I believe that it would nee...also need to be addressed in the bylaws as CPRs are created to define typically they define what the rights are of individual unit owners and would certainly need to be, I would imagine, addressed. Otherwise, it'd be difficult to do if not addressed in the bylaws because you would ultimately need the consent of the other owners unless provided for up front. Mr. Asing: So, is the bill designed to...to override the...the association? Mr. Costa: I'm not certain that it is. Mr. Asing: Thank you. Mr. Costa: I think you would need a legal opinion. Mr. Furfaro: I...okay, I'm going to follow up on that and I'm going to make it very clear. Years ago when I was on the council, we had this challenge where associations of apartment owners on ag land could not, through their bylaws, prevent agricultural activities. Mr. Costa: Right. Mr. Furfaro: Right? That...that went all the way up to the State. That if they had a CPR unit that was zoned agricultural, they had an entitlement to do agricultural activities. I think the question that we're dealing with here from Mr. Bynum and continue nurturing here is first of all those protective covenants and the bylaws within those associations are first subject to county zoning laws. Are they not? Mr. Costa: Yes. Mr. Furfaro: So therefore, if we zone something ag or open that could allow agriculture, we need to reference the legal challenge that we had a few years ago back because we...we don't want to be inconsistent with that 10 • ~ determination. And I think this was very specific about the condominiumization of the ag parcel in 'Aliomanu. I also need to point out that it is my understanding that although loosely interpreted by the water department, when you CPR a parcel you are supposed to have a source for water for farming. Right? I...I believe that's a condition? (Inaudible.) Mr. Furfaro: What? Mr. Bynum: I don't know that. Mr. Furfaro: . But like I said earlier, it's very loosely interpreted. Mr. Bynum: Yes, yes. Mr. Furfaro: So you know, maybe those are some of the areas that we need to tighten up on... Mr. Costa: I'm not certain that the water department is involved or cleared before the real...real estate commission makes a decision. Mr. Furfaro: I...but I do understand that agricultural land, the intent. Because this is...you know this is a bigger part of, you know, making farming successful on Kaua`i. In fact, we...we're talking about one component here: workforce and being able to house them. But we have. issues for successful agriculture here about marketing. We have issues here about successful agriculture that deals with before we get to the important ag lands, we should be identifying where water sources are. So, you know, there's many things that should have been, in my opinion, I think the Chairman alluded to that, that should have been reviewed when the bill was at the commission level. But, you know, perhaps I need to follow up with some legal interpretations. Mr. Asing: Yeah, Mr. Chair, can...can I follow up because... Mr. Furfaro: Oh, go ahead, sir. Mr. Asing: And the follow-up is that I guess you're making reference to the Wooton case... Mr. Furfaro: I am, sir. Mr. Asing: ...in 'Aliomanu. Mr. Furfaro: I am. Mr. Asing: Now, I did not follow the case to its final resting place so to speak, but...so I do not have the information: Was that case settled? Mr. Furfaro: I...I have a belief that the Wootons continue to farm and have overrode the association bylaws that said in this covenant these activities were not allowed. I believe they were successful. Mr. Asing: Yeah, I...I'd like to have a copy of that because I think that's...that's...that's an important...important case because what you're talking about is an individual who has ownership of a...one unit of the CPR doing, 11 ~ • you know, his trees and was told that he could not do it by the association and therefore the challenge now. I got my trees; the association is saying no, you cannot, cut it down. So what was the final ruling from the courts is the question that I have. I did not follow up through... Mr. Furfaro: And I'll pursue...I'll pursue that with the county attorney, yeah. The...the rationale was the trees were an important compone...component of a farming enterprise because it provided a windbreak. So... Mr. Asing: And at... Mr. Furfaro: I...I'll follow up with this question. Mr. Asing: Yeah and at the same time you have the association that controls all of those units that their bylaws does not allow for those trees because it blocks view plane. So there's the association on one hand and there's the farmer on the other hand. Who has the control? So with that, thank you. Mr. Furfaro: And...and I only mentioned 'Aliomanu because I think it's a case study that should be very close to the planning department as to the outcome, but I will pursue the question with the county attorney. Mr. Costa: And...and . CPRs have that inherent problem because it's a marriage of multiple owners, and unless the bylaws specifically spell out what those rights are and aren't, then they depend on each other. Mr. Furfaro: I...I understand, but for a developer to override the county zoning code is really the question we want to get clarified here and I will pursue that. I made certain assumptions that it was resolved, but do protective covenants and CPR bylaws supersede county zoning ordinances and I'm going to go to...I'm going to go to Kawahara and then to Mr. Kawakami. LANI T. KAWAHARA: It's going to be about density also, this question. Mr. Furfaro: Go ahead. Ms. Kawahara: Thank you. I just wanted to say I do appreciate and it is warranted that we do want to protect against fake farms and mansions and stuff like that. So the detail that we're going into is important and...and the stances of the planning com...planning department is very important. What I'm wondering about about this density, when you say density has to be right...the residential density has to be reached before farm worker housing can be established, is that a policy, a written policy or is that a practice? Mr. Costa: By zoning, you have an inherent number of dwellings that you are permitted to build. Ms. Kawahara: Yes, does it ha... Mr. Costa: This is a supplement to that. 12 • • Ms. Kawahara: Does it tell you in what order to build and when they need to be built? So, do you...do you know what I'm saying? . So you have...you're saying it's committed to have five...five...five whatever, ho...density, right? Mr. Costa: First one first. Ms. Kawahara: Five -density, first one first. So, I'm asking do you have to go...are you going to have to go.tell them that you have to do it in this order or can you...you're...is it a policy? Mr. Costa: No. Ms. Kawahara: So, wouldn't...isn't that what you're doing here? Mr. Hull: The...there is right now under county code, there is no specific provision for farm worker housing, although there's temporary worker housing and it can be interpreted by the director or called similar in nature and therefore applied for currently under the county code. But there's no specific provision for farm worker housing in the code and under the bill, which the department recommended amending and the commission adopted, that provision of building out the farm dwelling densities was recommended before building out the farm worker housing. Correct. It's not...it's not a policy we have right now because right now we don't have farm worker housing. Ms. Kawahara: Oh, okay, but... Mr. Hull: But in the event that the bill is...or in the event that is allowed the bill proposes as it was amended by commission that indeed the farm dwelling densities be built out previous... ' Ms. Kawahara: The residential. Mr. Hull: ...prior to the farm worker housing units: Ms. Kawahara: Okay. And so to make it clear, there's not an actual ordinance right now saying that you have to do it in that order. So, basically when you're saying it has to be done here, we can...we can say, oh, the farm worker housing can go first...before the house? Mr. Costa: That you...you...you could. Ms. Kawahara: Could, so that wording could be different and changed? Okay. Mr. Costa: I believe sa Mr. Furfaro: Thank you. I'm going to go to Mr. Kawakami then. DEREK S. K. KAWAKAMI: Thank you, Mr. Chair. Good morning, guys. You know, my question kind of teeters on an issue that's more State related but hopefully you guys can help me out but. Under Act 233, it provides incentives for the voluntary designation of lands as Important Ag Lands. So if a landowner voluntarily designates his land as Important Ag Land, there are some incentives that come along with it. So, let me go through the incentives. One is farm dwellings and employee housing. It allows landowners to develop farm dwellings 13 • • and employee housing with the limit of 5% of the .total IAL or 50 acres, whichever is less. Tvo, there's a refundable qualified agricultural eost tax credit. So if you're designating your land as Important, you get these tax credits up to what, $7,500,000 is what the Hawai`i Department of Agriculture has allocated until May 2010 and that's to cover cost for your roads, pipelines, dams, agricultural housing, okay, so also for agricultural housing. Third incentive is a loan guarantee. Basically what it's saying is that if you designate your lands, you can qualify for loans that will be at least 1% below the lender's prime rate. Incentive four is State Agricultural Water Use and Development Plan. Number five, agricultural processing facilities and permits priority meaning you designate your land as Important Ag Land, they'll expedite your...your permits to do things like a processing plant and so on and so forth. But I really want to get to incentive seven and it's the land reclassification which says that if you classify your land as Important Ag Land, you can submit a petition to the Land Use Commission to reclassify up to 15% of your Important Ag Land area to be rezoned under urban, rural or conservation. So just my question is, does this Act 233 fulfill what we're trying to fulfill with this bill that's in front of us today? And like I said, this is a State thing and I mean if...if can can, if no can, no can. ALFRED B. CASTILLO, JR., County Attorney: Excuse me. Mr. Furfaro: Go ahead, I'll recognize the County Attorney. Mr. Castillo: I...I...I think you're...you're catching the planning department off guard here because actually... Mr. Kawakami: Okay, I apologize. Mr. Castillo: No, no, I...don't need to apologize because it's a question that regards legal interpretation and legal analysis... Mr. Kawakami: Okay. Mr. Castillo: ...regarding how you reconcile what is the intent of this bill here and how you reconcile that with the IAL. So, I mean it is a legal question and that's one if we, at the county attorney's office, could research for you and...and get back to you. But you know to...to ask these gentlemen a legal question, it's hard to answer. Mr. Kawakami: You...can I ask another question to you and do you want me to submit it in writing or... Mr. Castillo: No, no, it doesn't have to...it doesn't have to be in writing. Mr. Kawakami: Okay, these guys...I don't know if you know... Mr. Castillo: No, no, they...they know a lot. Mr. Kawakami: Sorry. Mr. Castillo: But... Mr. Kawakami: Okay. 14 . • Mr. Furfaro: That is my intent. I will send it over and I believe it got to the state level, so. Mr. Bynum: And I also heard the answer, back to density, that although I agree with Councilmember Kaneshiro's statement that...I agree with his statement that it should apply to the unit. What I heard from you is we may need to address that if that's our intent and apply it to the unit, not the entire thing, so. My other question about density has to do with a...a different scenario that one that Councilmember Kaneshiro outlined. So let's just say my unit I have two pieces of density. I built one house. I'm intensively farming and I want to do additional...I want to do farm worker housing. Now someday I want to use that density for my child or my son in the.scenario and maybe build a...a home under that density that would exceed 1200 square feet. But under farm worker housing in this bill it assumes it'll be below that. So could I use that density now to build that 1,000 square foot farm worker housing unit and then at some future date say, you know what, I want to use that density for my son's home and I'm now going to apply for farm worker housing to cover the 1,000 square foot unit because I...I think your intent was to say, you know that somebody didn't sell off these units, which as you said and we'll get to that later, were intended to be farm dwellings. I mean that's what it's supposed to be. So, but can you make that transfer? Can I use that density now... - Mr. Costa: Yes, yes. Mr. Bynum: And then subsequently when I need that density for...for a...a...a larger home, then apply for farm worker housing and get the... Mr. Costa: Yes. Mr. Bynum: ...1,000 square feet covered. Mr. Costa: Yes, you could. And it's when you apply for that house that is over the density, then...then we need a vehicle to permit that and the vehicle would be the farm worker housing, and you could then... Mr. Bynum: Which was the density I already had, right, in that scenario? Mr. Costa: Right. Mr. Bynum: Okay. So I...you know, I don't know if that addresses Councilmember Kaneshiro's concern, but it answers my question regarding how you could do one for now and change it later if your circumstances change. Mr. Costa: That's correct. Mr. Bynum: Okay, thank you. Mr. Furfaro: Mr. Bynum just a(inaudible). Sometimes when you lean back from the mike, people can't hear you and since we're still on density, I'll go ahead with Mr. Kaneshiro. Mr. Kaneshiro: Yeah, I...I'm addressing that in, you know...I...I...I don't want to discuss it right now because it's not on the floor, but I...I am proposing 16 i • Ms. Kawahara: So I understand the difficulty... Mr. Costa: We recognize that. Ms. Kawahara: ...you're in and how important it is. Because they also...they give funding to farmers and they have to decide who's a farmer and who's not. Mr. Costa: Right. Ms. Kawahara: Okay. So, but .plus that my other question was you have in your...you have. a special note under your conditions of while the department concludes, it says here that there are adequate provisions to authorize the county to demolish and remove vacant andlor occupied dwellings that were permitted but ceased operating as a permitted use. Has there ever been somebody that has taken down, demolished a house because they're not farming and it can be shown that they're not farming and they've already built a house? Mr. Costa: Not that I know of, but there are instances of structures that through efforts by our legal, both county attorneys and prosecutors, it's just not simple to go in on private property and have something removed even...even after years and years of legal noticing and... (Gallery: Can't hear back here.) Mr. Furfaro: We've made a small adjustment on the mike, so we'll see if it's better. You want to repeat your comment just for those in the back. Mr. Costa: The county has a history of being challenged to go in on private property and remove structures legally. Ms. Kawahara: Mm-hm, so...so that provision kind of is there, but it's difficult to enforce. Mr. Costa: Yes. Ms. Kawahara: And the... Mr. Costa: And...and just involves multi-agency cooperation and I think that's what we tried to stress in the enforcement, yeah. Ms. Kawahara: Okay, because my main concern about...about going on properties and deciding which ones to use this provision with, I'm worried that we are in an uneven manner dealing with actual farmers that have maybe unpermitted small structures versus a big mansion that we all know are there that aren't farming. So, my question is, is this bill going to be able to help you enforce that better so that you can recognize real farmers versus gentleman farmers? Mr. Costa: I'm not certain that it does at face value instantly highlight who's a genuine farmer and who isn't. I...I...I can't. Maybe through years of application, but I don't see that the bill in and of itself clarifies who's a real farmer and who isn't. Mr. Furfaro: May...may I...may I expand on something regarding tho...that...that question because the enforcement issue is both going to be on the county, but I want to make sure that the farming community also realizes . 18 ~ . that they're going to be subject to tenant rental codes and so if they have a poor performing employee, they're also going to be subject to the fact that they're going to have to give proper notice for eviction and termination of employment and all of those particular things as well. And so clearly, it is, you know, an issue that the farming community should realize that if they have a non-performing employee and they are a tenant documented as an employee; they are going to be subject to proper notice for eviction. I...I just wanted to share that. The floor is still yours. Ms. Kawahara: Okay. Because this is...because this is about farming and...and all of the benefits that we get from farming that's why I'm asking about how you're going to be able...when you're differentiating between a real farm and a...and a fake farm. Have you ever cited somebody with a physical home that doesn't have ag going on...as required? Mr. Costa: I believe we did. Ms. Kawahara: What was that? Mr. Costa; I believe we have in the past. Ms. Kawahara: In the past. Okay. I...I was going to ask if I could send a communication to find out just the numbers, the difference between... Mr. Furfaro: Yeah and I want to make sure... Ms. Kawahara: ...between permitted...between, you know, homes versus accessories... Mr. Costa: Yeah. Ms. Kawahara: ...on property of ag. Mr. Furfaro: And again, I do want to make sure we understand under the current CZO if somebody has a ho...home that's within the density and they choose not to farm on ag land, that's not a violation. They have the density for that dwelling. Ms. Kawahara: They don't have... Mr. Furfaro: Is that a violation? Mr. Costa: We would have to go back to what the definition of a farm dwelling is. Mr. Kaneshiro: Correct. Mr. Furfaro: He said that we would have to go back to clarify the definition of a farm dwelling. So, we should piggyback that question with yours. Mr. Costa: Which does imply that there's farming activity and farming income. Mr. Furfaro: Sure, but it could be an orchard. It could be, you know.. . Mr. Costa: Yes. 19 9 • Mr. Furfaro: It could be a crop that's only harvested, you know, every three years. I mean, you know, it is a real question of definition. Do not assume that, you know, we don't need clarity on what a farm dwelling is. Ms. Kawahara: Thank you. Mr. Furfaro: Well, we'll piggyback that question with yours. Ms. Kawahara: I...yeah, I'm thinking most of the... Mr. Furfaro: So make...make a note for the staff. Mr. Bynum Mr. Bynum: Yeah, I'd...this is a fascinating discussion and we'll talk about it more, but my notes here say, definition of a farm, but I wanted to... In your work here it says, enforcement of land use is not restricted exclusively to zoning laws but can be further reinforced through penalties and through the county's real property tax structure. I think I understand what that means. Can you say more about that and what...how you would see that functioning and maybe you can't, but? (Inaudible. ) Mr. Costa: I guess in summary, if we want to promote true farms, then through our tax structure we give incentives or tax breaks on what...and i£..and we would need to establish thresholds for that. But if we don't feel they're meeting that criteria, then they pay higher taxes. Mr. Bynum: Right, so the real property tax system currently has some kind of criteria to determine legitimate farming, right? And so what you're suggesting is that we may be able to use their work, their history and their criteria in this bill, but it's not currently in here. Is that correct? Mr. Costa: Yes, I mean that...whatever bill we do approve, that that takes into account... Mr. Bynum: So that would require... Mr. Costa: ...the policies o£..° Mr. Bynum: ...some changes to this bill, correct? Mr. Furfaro: That's right. ' Mr. Costa: It could be. Mr. Furfaro: Do a Schedule F. To do a Schedule F... Mr. Costa: Or could imply changes to the... Mr. Furfaro: Mr. Director... Mr. Costa: ...structure. Mr. Furfaro: ...to get a Schedule F in a farm dedication, you do need to submit a plan to the tax office. 20 • 0 need to identify and at least generate annually $12,000 of gross agricultural products for the preceding two consecutive years. That is an absolute. Then you may have an opportunity to choose two of three other op...options to support your use permit application. Those options are (1) to actually provide a farm plan to the planning department that demonstrates feasibility; (2) to demonstrate agricultural rates for the use of water by the department of water; and (3) identify 75% of the particular lot of which the farm working housing is being proposed to be in crop cultivation including crop rotation. So, you may show that along with a dedicated...dedicating the land to agricultural use. Under the use permit side, this is post-permit and is part of the enforcement question that came up, and I want to remind people that, you know, the current enforcement is really defined in the State...in the State with 205, although it is really loosely, with some very loose definitions, that is how you currently get that density on ag property. And you have to have a clearer definition which I put in my amendment for farm worker housing. Is that amendment available at the stand here so we can begin circulating the first one? It also allows the two unexpected inspections by the planning department a year and it also talks in terms of single farm worker unit may not exceed 650 feet; a family farm worker unit will not exceed 1200 feet, and it should be used exclusively for the housing of farm workers and their immediate family. It goes on to talk about those units needing to be located on the subject parcel that you are applying for and they need to meet state health and OSHA requirements. It also talks, in fact, that your plan must be recorded in the Bureau of Conveyances. These- are all control items and the land from which the farm worker housing located shall not be created in a separate subdivision. The planning department will also have an agreement for an annual announced inspection. So that draft is being circulated. The second draft that I have deals with the definitions. There are two parts there. It...I'll bring your attention...I'm sorry the page is not...it's six pages back, but it changes the farm worker employee definition from 19 hours to 14 hours and that is along the parallels of HUD definition of housing, no more than 30% of one's income can be used to qualify for regular housing. So therefore, when we add an assumption that utilities are included, we arrive at 14 hours work of a 40-hour week, although I know farmers do not work 40 hours. Mr. Asing: What page is that on? Mr. Furfaro: It's about seven pages back, Mr. Chair. DICKIE CHANG: It's alphabetized. They go from "a" to...letter "f." Mr. Furfaro: One, two, three, four, five, it's page six, I'm sorry, , under "f," Farm Worker underlined. Mr. Asing: Second paragraph from the top? Mr. Furfaro: No, I got second paragraph from the bottom. Farm Worker is a farm owner, employee or intern who works no less than from 19 hours to 14 hours. Okay and then going two pages back, it's still alphabetized, under definitions in F, second paragraph, "Farm worker housing" means housing that is an accessory to a farm, over and above the residential density allowed in the Agricultural District, as established in section 8-7.5 for which a Use Permit is obtained pursuant to Section 8-7.1. I wanted to put in this brief definition of farm worker housing. This again is for the purpose of only circulation on the proposals and we will not take specific testimony on the drafts. Mr. Kaneshiro, do you want to speak next on your amendments? 22 • ~ Mr. Kaneshiro: Can we have my amendments passed out? Mr. Furfaro: Circulated? Mr. Kaneshiro: Circulated, Peter. I don't have a copy with me either. So that would help me if you do circulate it. I guess my amendment will address the part that we talked about residential density first and it's in subsection (c). If you turn it to the backside of the piece of paper -that I'm floating around, you would find it in subsection (c). So I believe that this would allow you to go ahead and, you know, move ahead towards using this premise so whatever you build as part of a worker housing first if need be rather than the way the bill is currently written where, you know, you have to build a residential density first. So this would allow you to do that. So later on we...we can have some discussions if and when it's introduced on the floor, but I thought that this may address some of the items that were brought up today by even Mr. Bynum in regards to CPR units. Mr. Furfaro: Okay, thank you. Then, I believe, we have an amendment that may be circulated by... Ms. Kawahara: Yes. Mr. Furfaro: Lani Kawahara. Ms. Kawahara: And Peter has them also. Mr. Furfaro: Okay. Ms. Kawahara: (Inaudible.) He...he's passing them out now, thanks. _ Mr. Asing: Mr. Chairman, perhaps it would be good if we attached some kind of number on each one so when we make reference to that number we will be able to better facilitate the discussion. Mr. Furfaro: So I would ask that the staff, going forward when we meet again in two weeks, identify amendment A and B as the two amendments that were circulated drafted by myself. Mr. Kaneshiro would be draft amendment C and Madam Lani Kawahara would be draft amendment D. Mr. Asing: In your amendment A and B, I think you need to identify which one is A and which one is B because you have two. Mr. Furfaro: Okay, for the purpose of clarification, A is the piece that deals with the use permit; B is the portion that deals with clarifying the definition of a farm dwelling. You have the floor. Ms. Kawahara: Oh, thank you. The amendments that I have proposed are on one, two, page three where we're disc...discussing sales of agricultural products. I have proposed $10,000, more in line with what some of the statistics are that I've read and due to the testimony we've received. And there was one more, farm worker included farm owner and contract work. Mr. Furfaro: Okay, so the difference in-between the circulated B and your circulation is I reference as the owner and the worker, you identify it as the owner and the contracted employee. 23 " 0 0 Councilman Kaneshiro raised. This issue about the condominium property regime unit and the density to...as compared to the entire project because number one, I think if we get a show of hands in here of farmers, just about everybody is farming on a condominium property regime unit, so it...it is an important distinction. I am speaking in favor of what Mr. Kaneshiro mentioned, that the density requirement only be applied to the individual condominium unit because the farmer is really only capable of dealing with what's going on on his unit. He can't force the other owners in the project to develop their properties. So if he has...if an individual has developed his unit, has developed the density of his unit, irrespective of whether the density requirements of the other units have been fulfilled, he should be able to apply for farm worker housing, and that's what I want to speak to. I...I hope that that will get included in this bill. Thank you. Mr. Furfaro: Thank you. Are there any que...questions of Robert? Thank you very much. Mr. Grinpas: Thank you very much. Mr. Furfaro: We'll go to Scobt Pomeroy followed by Bill Robertson. SCOTT POMEROY: Hello, I'm Scott Pomeroy and I'd like to speak to the 75% issue. I personally qualify for almost all of these things, but I...I'm just...I'd like to just paint a little picture is like if you are a young couple and you want to start farming and you lease 10 acres, then you automatically have to have 7.5 acres in farming to even apply for farm worker housing. Generally the first few acres, you know, in getting it is the hardest and requires the most labor. I think if you could think about this when we're formulating this bill I think it will be very important. I.:.I have this...it's just off the wall suggestion that, you know, if you required something like 15%...say you...you had an empty piece of 10 acres. If you require 15% a year, in five years you would have 75% of the land in, you know, in cultivation. And I think that would be more farmer friendly to encourage new farming and that's kind of what the main issue that I'm trying to address here, so. Mr. Kaneshiro: Okay. Mr. Pomeroy: So, since it's (inaudible). Mr. Furfaro: Well, as the Maui bill, you know the percentage of acreage is a...it's a multiple choice choice and if you are going in with a plan for farming, perhaps how you just described it is a description you would put in front of the planning department. Mr. Pomeroy: Could be included in the plan. Mr. Furfaro: In the planning department included in your plan. Mr. Pomeroy: Right, right. Mr. Furfaro: Are there any questions of Scott? Mr. Kaneshiro: I have a question. • . Mr. Furfaro: Go right ahead, Mr. Kaneshiro. 26 0 0 Mr. Kaneshiro: So, Scott, based on that, to me one of the reasonable items to put in here as a qualification is that...the ag dedication bill, that you have your property ag dedicated for 10 or 20 years. Mr. Pomeroy: Right. Mr. Kaneshiro: Because under that bill, it doesn't specifically state that you need to do 75% to show that you are in active farming. Mr. Pomeroy: Yeah. . Mr. Kaneshiro: In that bill it states that you have evidence that's showing that you are attempting to meet the requirements. So, I mean...and I ask that question because I don't see where we have that specifically in this bill right now that as one of the qualifications is that if your land is dedicated for 10 or 20 years, boom you meet the requirement for a use permit. Mr. Pomeroy: That work...that works for me, but... Mr. Kaneshiro: Okay, so. Mr. Pomeroy: I just didn't want this to be an all or nothing kind of thing... Mr. Kaneshiro: Right. Mr. Pomeroy: ...that even if you're 75% and... Mr. Kaneshiro: So, so perhaps for some we could leave the 75% that do not have the ag dedication or for others. You know, there's ways we can try to work on it. And for others, if your land is really ag dedicated and part of it, the 75% requirement is not needed. There are other factors that...that are in there under the rules and promulgation of this whole bill that, you know, can...can address it. Mr. Pomeroy: Good... Mr. Kaneshiro: Okay. Mr. Pomeroy: I just wanted to make sure that we understood... Mr. Kaneshiro: All right. Mr. Furfaro: And I'll say it again that portion are optional and it could be one of your multiple choices, but... Mr. Pomeroy: Thank you. Mr. Furfaro: ...a farm plan, as you spoke... Mr. Kaneshiro: And it's covered in this. Mr. Furfaro: Is covered. Mr. Pomeroy: Okay, thank you. 27 Mr. Furfaro: Thank you. Bill? Followed by Louisa. BILL ROBERTSON: Thank you. Bill Robertson. I'd just like to make a comment regarding the minimum income requirement, I think, that is mandatory a...ab...absolute. I...I have 10 acres of an organic farm and we've been working that farm, myself and the prior owner, probably for six or seven years. I still have a few more acres to develop out and I...I need my workers at this point now, but I'm not generating $10,000 or $12,000 a month income. It still might be several more years before I get to that point. So, I would be ineligible to build farm worker housing the way this is being proposed. And then... Mr. Furfaro: Excuse me, I just want to get some clarification. Mr. Robertson: Yeah. Mr. Furfaro: You, said $10,000 a month. Mr. Robertson: Or $10,000 a year. Mr. Furfaro: A year. Mr. Robertson: So in my particular instance and I know other people who are doing orchards, you know, it might take five, seven, eight years before any...any type of income stream is taking place and then I just wanted to read something that one of our members, who's not here today, just wanted to bring out as a reminder to everyone. We must remember that this is a farm worker housing bill, not a close the loop hole on abuse bill, meaning we have to consider what is realistically helping real farmers provide affordable housing for their labor force and create a bill to do just that first, then we consider ways to limit or eliminate abuse, not the other way around. Thank you. Mr. Furfaro: Thank you. Hold on mo...one moment, you have...we have a question for you. Mr. Bynum: I wanted to make sure people understand and these amendments...well, that when we discuss the issue of...it's gross sales per year, not income, which are very different, right. So, I just wanted to point that out. So if it's ten or twelve or thirty-five, I don't...I'm assumin in a lot of businesses with $12,000 of gross sales, you're not going to have ~12,000 of income, right. Is that...were you aware that... Mr. Robertson: Yes, I...I am aware of that. I've been putting, since the three and a half years that I've owned this farm, I've been putting between $30,000 to $50,000, you know, developing it, back into it, water systems, labor, planting more trees, and still my income is probably less than $1,000 per year for this particular farm. Mr. Bynum: $1,000 of gross sales. Mr. Robertson: Of gross sales per year. Mr. Bynum: So the issue would be how do you deal with that start-up period. Mr. Robertson: Yes. 28 ~ • Mr. Bynum: When...which... Mr. Robertson: Which I think is very real... Mr. Bynum: Which may be labor intensive. Mr. Robertson: Very labor intensive. Mr. Bynum: I understand that, thank you. Mr. Robertson: Thank you. Mr. Furfaro: Thank you. Louisa Wooton? LOUISA WOOTON: I just want to really thank everyone of you guys for the thoughtful consideration. I am absolutely humbled and overwhelmed at your comments. It just means really a lot to my family which also includes two farm workers besides my son, daughter-in-law, and my husband and myself. We're all living on the same property virtually under the same roof now. I also want to add that you do look at the mobile home provision there because that has been one of our means of providing clean, comfortable housing for our workers. We all went...some of us went to the ag summit the other day and I understand, you know, Derek's comments about cleanliness, etc. It's not suitable for me to have farm workers on my property living in a tent. It never has been, but sometimes we have had to resort to that and I just, you know, I just really hope that you'll consider these...these things that we're talking about that ag tax dedication is...should be one criteria in this. The ag water rates, every year we have to send in a Schedule F to the department of water to ascertain that we can get those rates and the Schedule F within itself. Those are really, really important criteria and speaking as to what Bill Robertson just said, we all got the handout from you, Jay. There was... I printed off some of the complete 2007 ag census and one of the things that you might want to take into consideration that wasn't on what you handed out, more in line with what Bill spoke about, is the average production expenses per farm $77,140. That's average and we know that we're averaging in little bitty farms, big sugar plantations, etc. and then we get again to the average actual net income which is minus $10,475. So there's a lot of things to be figured in and I did print the 2007 complete census county profile here and I can give that. Mr. Furfaro: Yes, I would... Ms. Wooton: If you want more statistics, I mean... Mr. Furfaro: It would... Ms. Wooton: I am not a lover of statistics after Monday but I also have the 1997 county profile and statistics that shows actually the number of farms has grown slightly, but the size of the farms has gone down quite a bit. So I think it's all interesting. I'm not a real statistician and I've never been into it, but when you start...I fill out that little ag census every 10 years and I go, whoa, what's this all for and they tell me it's going to help with somebody. So in time it may be able to help with this in seeing the figures. Mr. Furfaro: We...we would actually like to have the staff get copies so we can distribute it to all the members. There were some statistics that I did not put in my piece and I think one of the ones I was concerned also with was the average farm worker age was 59, I think. 29 ~ • Ms. Wooton: Absolutely. Mr. Bynum: So, you gotta be a little cautious about statistics. Ms. Wooton: And I think that, you know, that's true and there's some economic characteristics in this complete profile that I think bear looking at, you know, the number of farms, what their gross is, and how many farms in Kaua`i make that, etc. I...yeah. Mr. Bynum: Okay. . Ms. Wooton: It:..it's fascinating. I'm learning a lot. Mr. Bynum: Thank you for your testimony. Mr. Furfaro: . Thank you for revisiting that. As I said in the beginning, these were needing...need numbers and so, you know, half the farms above and half the farms below, and you know, one large multi-million dollar loss could skew the whole number, so. Thank you very much. Are there any more questions of Louisa? Thank you for your comments to the council about our work. Ms. Wooton: Thank you so much. Mr. Furfaro: Now we'll go to JoAnn Yukimura. JoAnn. JOANN YCTKIMURA: Chair Furfaro, Members of the Council, Chair Asing, good morning, still morning. Thank you for this opportunity to testify. I...and thank you for all your efforts and thinking and tours so that you can really understand farming on Kaua`i. I believe we all understand that farm worker housing is essential for farming on...for successful farming on Kaua`i and as you pointed out, Chair Furfaro, it's one of the components, but it's an essential component. And I think there's a strong consensus that we need more farming and we want to encourage farming on Kaua`i and I was just reading the other day the latest National Geographic which talks about the end of plenty and the global food crisis that is in the works. And basically it says that we've been consuming more food as a earth, as a globe...global community...more food than farmers have been producing for most of the past decade. So we're already in a deficit position and our population is continuing to grow. So we can expect more...and...and as energy becomes more of an issue, farm production is also being diverted off into energy. So we can expect a food crisis in the next few years. And that's why it's so important that we be growing our own food on Kaua`i. The reason for this bill is because the existing zoning is not allowing what is needed on agricultural lands where farming is occurring. It's not allowing the kind of housing we need. So the question is how to allow genuine farmers the housing they need but not allow the abuse by the so- called fake farms. That's the key issue here and it's a tightrope; it's not an easy one. The problem with the $35,000 requirement is that it focuses on closing the abuse, but it also excludes 90% of the genuine farmers if you look at the 2007 consen...census. The 2007 census most...and they have economic characteristics: farms by value of sales, so that's gross proceeds, 600 out of the 700 farms are less than $39,000, and...in...and so you're excluding most of the farmers on the farm...on Kaua`i and a lot of the small farms. And that's why that provision does not work. And people have said it worked on Maui, but in Maui it was an either/or. It was only...you could either qualify by the $35,000 or you could qualify by having a water pl...water rates and a farm plan. When you make it an essential, you knock out a lot of the farms. Last, my last point is... 31 0 0 Mr. Furfaro: Excuse me, JoAnn, that is the three minutes and I will, at the discretion of the chair, give you an additional three minutes. Ms. Yukimura: Oh, thank you. Mr. Furfaro: ' It's your time too, go ahead. Ms. Yukimura: Thank you, appreciate that. My last point is on the issue of provision (i) in Bill 2318...excuse me, provision (i) under farm worker housing, which says that a property shall be eligible for farm worker housing only when all of the farm's respective...all of the, sorry, subject property's respective maximum permitted residential densities as established have been permitted and constructed. When the farmers and myself heard this at the Planning Commission meeting, it sounded reasonable especially in terms of even if a farm has additional density as Councilmember Kaneshiro said, if you can use that density presently for farm worker housing and then convert it when you need to for your other uses, that seemed reasonable. The main issue here and- I think the amendment that would be appropriate is to say only when all of the farm's respective maximum permitted de...residential density has been used up. Then you won't be bothered by other condominiums not under your control. The farm may be on one or two units, condo units, who knows or three or four, but at least it would be limiting them to the density that's under the control of the farm and not on another condo. And so that's one suggestion I have for solving that problem. Any other questions? Mr. Furfaro: Let me see if there's any questions. Ms. Yukimura: . Yes, thank you. Mr. Kaneshiro: I liave a question. Mr. Furfaro: Go ahead, Mr. Kaneshiro. Mr. Kaneshiro: Good morning, JoAnn. Ms. Yukimura: Good morning. Mr. Kaneshiro: We're still there, right? The...I think the fact remains that the $35,000-to me, this is how I see it-was placed in there for the reasons of controlling the amount of units. In other words, if you up or $35,000, you get one unit; another $35,000, maybe you got another unit. So I'm not certain, but I need to question...I haven't had the chance to question the planning department. But if that's the case...if that's the case, what I'm asking that if it's the method of trying to control just how much units on per farm; would that be acceptable, but we would drop, you know, that requirement... Ms. Yukimura: Oh, it... Mr. Kaneshiro: What I'm saying is drop the requirement. Ms. Yukimura: If you make it per worker housing that'll be even more prohib prohibitive. Mr. Kaneshiro: No, no, no, what I'm saying is. Ms. Yukimura: Because someone like... 32 • • Mr. Kaneshiro: ...up to. I'm not saying you gotta have $35,000, I'm saying up ta Ms. Yukimura: No, but I mean someone like I hope Louisa won't mind, but the Wootons, in order to put two housing, they'll have to gross $70,000. Mr. Kaneshiro: Well, I mean there's gotta be some... Ms. Yukimura: That's...that's even more onerous. Mr. Kaneshiro: Okay. ' Ms. Yukimura: And if $35,000 alone per farm per year excludes 90% of the farms, this per unit worker housing is even crazier. Mr. Kaneshiro: Then...then how do we control how many units... Ms. Yukimura: And I...the original bill had that. Mr. Kaneshiro: Okay. Ms. Yukimura: The original bill said that the Planning Commission would be de...would determine that and i£.. Mr. Kaneshiro: I got your answer; you said the original bill. Ms. Yukimura: Well, well let me just say that it will be... Mr. Furfaro: And JoAnn, I want to...I want to caution us that...that is (inaudible) in some of the proposed amendments. Mr. Kaneshiro: That is not...right, that is not in there.. Ms. Yukimura: Okay, so that's good, but... Mr. Furfaro: I want to caution us. Ms. Yukimura: Let's just talk about the concept as a workable concept. It's...it's...the applicant will say how many houses they need and can build. I mean these are going to be capital requirements... Mr. Kaneshiro: Special use permit (inaudible). Ms. Yukimura: ...for the farm. Mr. Kaneshiro: Okay. Ms. Yukimura: So you're not...they're not going to ask to for a hundred units when they don't need it or they can't afford to build. Mr. Furfaro: They can justify the business plan for the enterprise. Ms. Yukimura: Right, so...so the numbers would be determined by the applicant and then the planning department and commission would scrutinize it 33 . ~ to see if it was reasonable to look at...they would look at the justification and...and look at what kind of farming happens, you know, pasture versus organic farming or have different labor requirements. Mr. Kaneshiro: Thank you, JoAnn, I got your answer. Ms. Yukimura: All right, any other questions? Mr. Furfaro: Any other questions? Thank you, JoAnn. Ms. Yukimura: Thank you. Mr. Furfaro: And JoAnn, thank you for your original work on this bill. Ms. Yukimura: You're welcome. That was a joint effort between you...yourself and me. Thank you. And the farmers. Mr. Furfaro: It got us to where we're at right now. Thank you. Okay, John, I'm sorry I can't remember your last name. Yeah, if you can repeat it in the microphone. JOHN PARZIALE: John Parziale and actually it was brought to my attention that I didn't do a very good job of introducing myself when I spoke to you last, so just really briefly, I've been farming on the island for about 12 years. I've managed several farms on the North Shore. I'm currently the operations manager for Common Ground, which is the old Guava Kai plantation...area. I own my own farm in Moloa'a and I'd like to just touch on a few things today, one of which is the...the idea of density. It's...it's a very common word; I'm hearing it so many times every few minutes. I would just like to submit that in terms of density like the value of density, if you were to attribute value to...to density, so much of that is...or actually just a fraction of that value is the i...is the ability to live in a structure. But really the value of...of density is being able to mortgage it, being able to spec a house and sell it or divide it, being able to build a house and rent and obtain an income off of this density. And it's like none of those things are really appropriate or what we're talking about for the farm worker housing. So, you know, to really just call it an increase in density, it's not a very accurate way to look at the situation. Just...just to offer that as a comment. - Secondly, in terms of the...the bill and the density fulfillment provision, it talks about meeting the density of the...of...of the farm or the parcel before farm worker housing, I just would like to say that what Mr. Costa mentioned about there being an avenue to which you can apply, say if there's like one home site to be able to apply that to your farm worker housing initially and then being able to sort of switch that, that seems like...it's a really essential thing just speaking from my own experience. I mean to be able to build a 600-foot structure just to house yourself when you're, you know, putting your irrigation in and your fences and these things that are an enormous amount of labor at the outset, to try to build a, you know, even a one-family home prior to doing that is...is...is really cost prohibitive. I mean for a...for a start up of a small farm. The second thing I'd like to just mention briefly is the open zoning issue is that my farm in Moloa'a is actually my state land use is agriculture, but my farm lies within the open zone. I was on your list of places to visit yesterday. Unfortunately, you guys ran out of time and I. and I wasn't able to be there in the afternoon and I really wish I could have shown you my farm and you could see for 34 • • you know, listening to some of the testimonies that were brought forth today .will probably compel me to start working on some other amendments too. And I think deferring this bill will allow us the time to do so and hopefully what we could do is if the other amendments...I'm willing to throw it on the floor and if I do have some other amendments that come up for the next meeting because it's going to be two weeks from now, I don't mind moving on the amendments. In other words, you know, as we start to move the process through as we get new amendments come in, not wait another two weeks to give the...the people, the public, the opportunity to speak on it. But I think at this point we gotta throw amendments on the floor and at that time any new amendments come in, also give the public the opportunity to speak on it so we can really work and come out with a real good bill for the farmers. Thank you. Mr. Furfaro: Thank you for that. Mr. Bynum, did you want to share something? Mr. Bynum: Yeah, thank you. First of all I want to show appreciation to Chair Furfaro for the way he's managing this bill thus far and... Mr. Furfaro: Thank you, Mr. Bynum. Mr. Bynum: ...the professional manner. In relating to process before I get to some farm issues, I...I also concur with... You know in the past we've allowed the public to come testify, then we discuss all the amendments and...and the public doesn't get to address it, and so I really applaud Mr. Furfaro's efforts to...to try to give more open kind of discussion knowing what's going on in other councilmembers' minds. I didn't see these amendments until today either, so it makes sense to defer. I didn't prepare any amendments because I had a sense that there were people who would address some of the concerns I had. But in terms of process, I think we can put an amendment on the floor and then not have the sunshine issue because an amendment can be withdrawn if somebody says, aw, you know what, yours is better or someth...but, you know, I really applaud the effort of txying to structure this as a way that par...that the public participates and to a greater extent. Thank you very much. Regarding farm issues, I know that this discussion is complex, but I think we all come from the same intent, which is to facilitate farming and growing food and fuel and fiber and things that, you know, I think probably every single person on Kaua`i wants to keep the rural character of Kaua`i and have a course that's different. But we also know that historically there has been abuse of farm land and this is the first of what I hope to be many bills to come forward to try to address ag issues and agricultural zoning issues because, you know, I've said this before and I believe it's true in this State of Hawai`i and here on Kaua`i the rules and regulations about ag land are very convoluted, confusing, interpreted differently depending on who you speak to or what county you reside in or what state legislator you speak to. There is a very large lack of clarity and I hope that the county of Kaua`i addresses that lack of clarity for our purposes because we have a vision for the island that may be different than Maui's or O`ahu's or...and others. And so, anywhere we enter this discussion is useful and I'm glad that we've entered it, but we've seen today that there are areas where we have to be very cautious and very careful. And it won't be a simple process. But, you know, last week at the testimony, I heard people. say and I...it really struck me that we may need to risk some potential abuse if we want to get to the appropriate use of farm land for farming. I think we also skirted...you know, danced around some other issues today where we know the intent of the agriculture zone is not being realized in other planning choices that we've made historically and...and that's going to be 36 . . really difficult. And I want to caution that we don't play that issue too much about well, this...us versus them. We're all Kaua'i; we're all people; we, I think to a large extent; have the same vision for where we want to be. So...and I applaud everyone that's testified that has avoided doing that because it's easy to go into that position as we've seen with other issues and so..: Anyway, I'm kind of rambling a little bit, but I really appreciate that we're starting this process and...and everyone that's here today and the input you've provided and also my colleagues here at the table. Thank you very much. Mr. Furfaro: Thank you. Is there anyone else who would like to say anything? Yes, go right ahead. . Ms. Kawahara: Thank you, Chair. Furfaro. I. ..I want to acknowledge all the people that have been able to come to the meetings and also email their concerns about this bill. I am also very happy with the way that we're going about discussing and figuring out ways that we can support farming and small farmers with...with an ordinance. In it...they're...supporting farmers is directly related to sustainability. In this day and age we're worried about food security and it's a way of diversifying our agriculture instead of having a mono- agriculture. So, being able to support farmers and watching this council diligently working to do that is something I really appreciate and want to recognize. And I...and it is going to be difficult and I...and I agree there's going to...we have...we would probably have to have some kind of...there's going to be some kind of abuse, but we do want to keep an eye out for the big picture and that is supporting the proper use of the land and...and using it for farming. So, thank you. Mr. Furfaro: Thank you. Others members, any comments? Go ahead, Mr. Chang. Mr. Chang: Yes, again, thank you everyone for coming on over and testifying. I want to thank Chair Furfaro for putting this on the agenda and for all the input. It was very interesting listening to all the comments and, of course, having that tour yesterday was extremely enlightening. I think what I would like to say at this time, going out and...and visiting with many of you folks, obviously, I know that a lot of you folks don't have cable, maybe no access to the papers or what have you. But I think it's very important that you let the fellow farmers out there know that this council and along with your input is trying extremely hard. We all know that this is not going to be foolproof. We all know that we may or may not make mistakes. We'll do good, we'll do some bad. But I think what's important is that if you can communicate to your community and to your fellow farmers that we are actively working here in Lihu`e, if you will in...in the big city, that if you let your people know out there that we're putting our best foot forward. I mean you see how much people have planned, people have discussed. You know there are...there are...there are changes, there are additions that we want to all add, but please let your people know that one of the words that we hear also is abuse. And we just want to let everybody know in order for us to all get into the same page, I think we all gotta play by the rules and let everyone know out there that hey, we're all trying and, you know, one or two bad apples, like everything else, can...can spoil the whole pot. So, if you can just, you know, get out into your community and let everyone know that there's major attempts and there's a lot of discussion for the benefit of this...this bill that we...we all want to help and...and you can help us by letting your community know that these are the things that's going to be coming on down, so give everybody a heads up that we want to do our best and...and...and try to keep everybody i...i...in a lawful way. And again thank you all very much, mahalo. 37 • .0 Mr. Furfaro: Thank you, Mr. Chang. Mr. Chair, did you have anything to add before I... . Mr. Asing: No, I just wanted to thank everybody for, you know, their participation and we'll go forward from here. I think the chair of the committee has been handling this situation excellent...in an excellent manner and we will continue to try to come up with the best bill possible. Mr. Furfaro: Thank you, Mr. Chair. You know, I...I'll just make a few comments. We will be back in committee if I get a motion to defer in two weeks. You have an opportunity to digest, you know, some of the direction right now and you know on that note I think we have a commitment. I think Mr. Chang summarized it that we on the council are trying to assist. But as I said earlier and reiterated by JoAnn Yukimura, I think we need to realize that the housing and work force component is only part of, you know, our commitment to make agricultural activity successful on Kaua`i. Now with that being said, then can I have a motion to defer. Upon motion duly made by Councilmember Kawakami, seconded by Councilmember Kaneshiro, and unanimously carried, Bill No. 2318 was deferred. Bill No. 2317 A BILL FOR AN ORDINANCE TO ESTABLISH A NEW ARTICLE 28, CHAPTER 8, KAUA`I COUNTY CODE 1987, RELATING TO SMALL WIND ENERGY CONVERSION SYSTEMS [This item was deferred.] Mr. Furfaro: Thank you very much. We're going to be moving into a new bill. That bill, as I pointed out earlier, I would like to go to 2317 and that is the small wind energy conversion system. May I have the bill read please. Ms. Akiona: Yes, Bill No. 2317, a bill for an ordinance to establish a new Article 28, Chapter 8, Kaua`i County Code 1987, relating to Small Wind Energy Conversion Systems. Mr. Furfaro: Thank you, thank you on that. You know, there has been a...a number of commentary come in on this bill. I have some pieces to distribute as committee chair. I have some first blush draft of the Kaua`i County Energy Sustainability Plan. I also have from our public meeting, the recommendations that came in from Barbara Robeson and Carl Imparato. For the purpose of discussion also, I have some testimony, wind charts and graphs that have come in by Mr. John Gordon, who was with the FAA, indicating in all of this testimony, the desire for us to be patient until we get the first draft, full draft, of the Kaua`i Energy Plan. So, if I can ask the staff to pass out the information and while that is being passed out, I will suspend the rules and ask if there's anyone in the audience that would like to testify on Bill 2317, Small Wind Energy. Is there anybody that signed up for that? No? We have no one wanting to speak on that. Okay, may I ask the planning committee to come up...the planning department. Gentlemen, again, as I move forward on being the Chair of the Planning Committee, I would like to give you an opportunity to give us a general overview of Bill 2317 that came back from planning and the floor is yours. The rules are suspended. There being no objections, the rules were suspended. 38 ~ • Mr. Aiu: Thank you, Chair Furfaro. It's Imai Aiu, Deputy Director of the Planning Department. With me ' is Ka`aina Hull, who was the principal planner on the bill, and I will let him speak on it. Mr. Furfaro: Thank you. Thank you both for being here. Mr. Hull: The Planning...the Planning Commission basically approved in whole the department's recommendations for the amendments to the bill. For the most part the intent was kept intact. There are a few, let's say grammatical amendments made and a few substantial amendments, which I'll go over those. Primarily when dealing with wind energy, the applicants for wind energy that have been coming into the planning department for permits aren't able to access the necessary winds to power wind facilities and that's generally because they have the same existing building envelope for a wind turbine that they have for a house or a structure that's permitted on the...on the respective lot. And they need to basically get above the existing structures in order to access the needed winds. So when the bill came down, I can't remember the exact numbers, but I think they were allowed...it was to allow 90 feet in the agricultural, 70 feet in the residential and so on and so forth. Many concerns were voiced in the public hearing about the effect of wind turbines on the view plane and the potential effect of a proliferation of wind turbines on the view plane. And in addressing those, the department recommended and the commission adopted, was essentially a 20-foot height limit above the existing building heights for their respective zoning districts. And that was basically taken from the CZO or the Chapter 8 of the Kaua`i County Code as is, in that an additional 20 feet is allowed for utility lines, so there's somewhat of an existing building envelope that the wind turbines could be permitted under which would also allow them to go above the wind breaks or the building structures currently permitted. So that was a way to allow for them to access the necessary winds without potentially fully intruding on the view plane. And then secondly, the size...and the...the size of the lots was generally kept intact. And...and the main concern was how many of these things would be put up in the residential zone. And it was proposed in the original bill one per acre or...I should...I should say one wind turbine permitted per each respective acre lot and that's pretty much accepted across the board in our research of other wind turbine ordinances that have been adopted in other counties throughout the nation and we pretty much kept that intact. And in looking at the residential zoning maps, there aren't many one-acre lots in the residential zone that would be eligible for a wind turbine under the bill. And that is our...those are our main issues of concern and that we addressed. There are other changes if you have questions and I would be more than willing to answer. Mr. Furfaro: I...I do want to revisit some of the process and thank you, gentlemen, for doing the work that you did on this bill. But during the public hearing, may I ask did you invite anyone from the office of county economic development to give you an update on the overall wind, solar, hydro and alternative energy plans that the County of Kaua`i is currently contracted to the tune of $400,000 to do? Did anyone from the firm contracted, were they invited to give testimony on the overall plan? Mr. Aiu: I don't believe they were. Mr. Furfaro: Did anyone from HIUC, were they invited to address issues that potentially while they're going through their rate case deal with the impact of people at peak demand utilizing their own in-house energy and how 39 • • yet a two...two-tiered rate solution might be required for those that in low demand areas actually use transmission from KIUC and yet at the time when they are able to generate would not use the common infrastructure by the utility company. Mr. Aiu: Correct me if I'm wrong, Ka`aina, but we did discuss with KIUC and their, I forget his title, it's their renewable energy coordinator. We did have multiple discussions with him regarding small wind energy. However, I do not believe we invited them to the hearing, nor did we discuss, as I recall, the two-tiered rate structure or how they plan to do it, unless you just... Mr. Furfaro: I guess the two-tier rate structure potential as it goes to their rate application as well as, you know, just, you know, stabilizing when we have peak demands. Did...did they have any testimony to that effect? Mr. Hull: No testimony was received from HIUC. However, just to add to Imai's comment, while no official invitation was extended, comments were solicited from KIUC or...or a notice was sent to them informing them of the hearing as well as the application of (inaudible) or I should say the proposed draft bill. But no comments were submitted. Mr. Furfaro: Okay. It...it...it seems that, you know, many...much of what we're getting right now as well as the feeling of this general council is, you know, many, many people support the alternative energy options that we have, but hoped that it would be a very comprehensive overall plan of which we've paid substantial money to...you know, to get that overview. And I believe the planning department has been asked to participate. Do you have a representative at that? Mr. Aiu: If we do, the invitation hasn't come to me directly. Mr. Furfaro: Okay. I...I know... Mr. Aiu: But I'm sure as a county project, we will be. Mr. Furfaro: Okay. I know Glenn is very, very much involved. I did want to share with all the members here, at the same time, packets of testimony that have come in from both Carl Imparato, who I believe is an electrical engineer; Barbara Robeson, as it relates to covenant issues on the North Shore; Mr. John Gordon, who is with the...was retired from the Federal Aviations Administration and a meteorologist. I believe of the general concern is that we're getting a little bit ahead of ourselves. In those packets also they have shown the wind density charts for the Hawaiian Islands as well as not just the State of Hawai`i, but also the County of Kaua`i. Wa...was anything of that nature provided during the public testimony? Mr. Hull: Some of it was. Mr. Furfaro: Some of it was. Mr. Hull: I haven't had a chance to review all of this right now, but somewhere... And...and a fair amount of time was dedicated to discussing the wind charts. Primarily the wind charts that are available now to the public, unless private studies have been conducted, are done...have been done by the federal government and they're primarily for large-scale wind. I believe they're looking at 100 meters where those wind charts were taken and so they don't really 40 s • apply to the bill at hand, which is specifically for small wind generating systems of a nature that are, under the amended draft bill, looking at I think the highest would be 70 feet. . , Mr. Furfaro: But they...they do apply to an overall energy strategy for the county. You do agree with that? Mr. Hull: Correct, they would apply specifically for. large- scale wind farms. Mr. Furfaro: Did...did...did you hear anything at all from KIUC on...on their position other than they support alternative energy? I mean, did...did they respond to anything about the impact on...on infrastructure, their upcoming application, maybe having .to have two rate structures: one for households that use alternative energy. They may have a higher rate when they do go onto the grid because they're not typically always on the grid versus what a residential household would. Was there any discussion about that. Mr. Aiu: No, not...I did not have any discussion with KIUC about that. We mostly...our discussions with KIUC focused on the...a lot o£..we were using them as a reference for the technical nature of the small wind system, the efficacy of it on residential and basically any other existing ordinance they were aware of, so. And you would...I would be correct to say that yes, their general nature of this is, yeah, they are supportive of small wind energy systems. Mr. Furfaro: Yeah, again, I just want to point out this entire council supported an energy strategy and, you know, we earmarked $400,000 for this and I applaud Councilmember Bynum on his energy ' and effort here to get small wind energy conservation system going. But I'm just trying to figure out how it fits with the overall plan, especially with...when we're within 90...90 days of getting the first complete draft. Okay, let me go around to other councilmembers and see if they have questions. (Inaudible) any councilmember? Mr. Bynum, I have a cramp in my calf. . Mr. Bynum: Bummer. Hi there. First of all, let me say like I said earlier I appreciate very much the work that the planning department did on this bill and also the planning commission. I know you had a number of hearings and a lot of testimony and, you know...and you've made, as you said, some substantial changes to the first draft, the bulk of which I think are well thought out and make sense. I want to highlight...I want to read just one paragraph from your thing and it kind of...it's somewhat redundant to what you said, but I know...I mean the...the issues...the issues of concern tend to be around height, visual impact and noise, right. And.so...in the balance there is that we're all concerned about visual impact and noise and...but there's the pragmatic and practical level at which if the small wind energy systems are only allowed at existing building height limits, they're not practically clearing the roofline which are obstructions to the wind. To be practical and purposeful, they need to be able to catch the wind. The standard in the industry is kind of like the higher the better. But it's unreasonable to go, you know, as...to extreme heights. And so the paragraph I wanted to read says, secondly, many of the heights allowed under the respective zoning districts may be excessive. Individually from the wind-I'm referring to the initial. bill, right- individually from the wind turbine industry pointed out that additional heights are needed because under current zoning regulations a wind turbine is allowed to go no higher than any other allowable structure unless: there's a variance permit. Yet to operate efficiently and access vital winds requiring...required to power the turbines, the turbines need to be erected above the existing roofline. However, as presented 41 • • by concerned members of the public and the commission, if a height envelope is established that is overly permissive, the view plane and the aesthetic quality of the island would be compromised. So I...I thought that was really well put. That's the balance. How do we come up with a reasonable height and if I heard you say that there are other utility needs that require to be above the existing building height as like utility lines that need to exceed the height of the building. And so you used, if I understand you correctly, the kind of variance that's allowed for utility lines to go a certain height limit above. Is that correct? Mr. Hull: For the most part. It's not tech technically it's not a variance. It's just an outright permitted height limit. , Mr. Bynum: Right; so in the residential zone or in any zoning district at this current time, there are provisions for utilities to be a certain amount higher and that's basically the standard you were suggesting you apply to this bill. Mr. Hull: Correct. Mr. Bynum: And did you have testimony from the industry about whether those heights were sufficient for them to catch the wind and have these work productively? Mr. Hull: We did and they agreed with the 20-foot height limit. I also want to point out too then, while we're on the topic, there's two types of wind devices in...proposed to be allowed under the bill and one is a tower-mounted and one is a roof-mounted. The tower-mounted; the commission adopted amended bill allows an additional 20 feet for the tower-mounted and the roof-mounted allows an additional 10 feet. And individuals from the wind industry commented that those heights were sufficient to...to access the necessary winds. Mr. Bynum: So...so the bill and the other concern is about the proliferation. How many...what's the number o£ ..you know, am I going to drive through my neighborhood and see 500 windmills, right, and which would tend to...and if I hear you correctly that what you're recommending is that no lot smaller than an acre would be allowed a tower-mounted wind device, right. Mr. Hull: No residential lot or neighborhood commercial lot under an acre would be allowed tower-mounted wind or (inaudible) SWECS (small wind energy conversion systems). No neighborhood commercial or residential lot under an acre would be allowed a SWEC over-the-counter. There are also provisions in which they could apply via a use permit for a lot smaller than an acre. But for lots over an acre, excuse me, under an acre, to get a...they...they would not be outright permitted for the neighborhood commercial and residential lots. For industrial -and general commercial as well as agriculture, there's different respective ratios. Mr. Bynum: Right, so for the vast majority of residential neighborhoods on the. island of Kaua`i, you would not have an outright permit to build...to erect a tower-mounted SWEC or small wind energy system. Mr. Hull: Correct. Mr. Bynum: And...in...in gen...and the use purposes of this bill require a lot of an acre in those residential and residential commercial zones, and then no more than one per acre. Is that correct? 42 Mr. Hu1L• Correct. Mr. Bynum: So, it was the opinion of the commission and of the department that that balance...struck that balance that that between concerns about visual impact and proliferation in the neighborhoods that those were mechanisms you felt...or and the council felt addressed that. Regarding noise, another concern is noise and the draft doesn't really address that. So, could you comment on that? Mr. Hull: Primarily noise is handled under the Department of Health and we felt that in treating it as a structure permitted in the code, it would still be applic...I mean, they'll still have to apply for a building permit, at which time it would be routed to the Department of Health to sign off on and they'd. have to meet the Department of Health's required noise standards for their respective land use. Mr. Bynum: So anyone who did a small wind system •would require a building permit and there are current laws related to noise standards and there would be a. a sign off by the Department of Health that the proposed installation met those noise standards. Is that correct? Mr. Hull: Correct. Mr. Furfaro: Would you yield the...the floor for a question along those lines? Mr. Bynum: Sure. Mr. Furfaro: Do you know what the decibel reading is set by the State of Hawai`i? Mr. Aiu: Is it 55? For some reason I... Mr. Hull: I...I had the chart and I...I was looking through my files right now and I didn't bring it with me. But I believe it's 55 for residential, I believe. But I'm not totally sure about that. Mr. Furfaro: You know what that relates to? What could I compare that to...55 decibels? Mr. Aiu: Yeah, yeah, you know, we always ask that question ourselves whenever we...somebody comes in and says 55, 70 because they're not meaningful numbers we use in everyday life. However, the...the industry usualiy comes out and says, at least for a lot of the reps we talk to, they say that they're...it is comparable to the hum you hear from that air conditioning unit right now. However, you know, that's not the only measure that's meaningful in noise. You know, a lot of it is the consistency of the noise, the nature of it that, you know, is it a constant hum like that which is easy to get used to or does it have like a percussion kind of sound to it. So that's...it's not always so easy to quantify noise just by decibel alone. Mr. Furfaro: Okay. I'm quite familiar with this based on my hotel experience with cooling towers in resort areas and you'll be surprised 43 . 0 55 decibels can surprise a lot of people on the noise especially in the evenings. So, but you don't have a comparison chart? No. Thank you. Mr. Bynum the floor is yours again. Mr. Asing: Can I...can I follow up on that? Mr. Furfaro: Yes, the same question. Mr. Asing: In...in terms of noise, I know this was a major concern about 15 years ago and it happened to be the windmill at the old Dairy Queen in Hanapepe. And in that particular instances...instant and case, the noise was so bad that one of the people living in the adjacent subdivision at `Ele`ele ended up with some kind of lawsuit and the end result is they sold the house and moved. But it was...it was that bad. And what concerns me is the noise level, how would you make that determination prior to actually having it on the premises? Mr. Aiu: That is something that we left to the Department of Health specifically because in the planning and zoning realm we do not feel ourselves experts on what is an acceptable or unacceptable level of noise, nor should we override what the Department of Health tells us and the standards that they've set as to what is an acceptable level of noise. So that's why we leave it to their sign off. Mr. Asing: Yeah, wh...what I'm...what I'm saying is that, you know, to allow the permit and if the individual builds it and then the noise level is discovered after that, then the unit is already up and it's permitted, so it's...becomes difficult to take it down so to speak. Mr. Aiu: That...that is true and that's...it's a good point and it's an inherent risk of almost any type of permitting you know of...can you reasonably foresee the effects of any operation we...put there. Mr. Asing: Okay, thank you. Mr. Furfaro: Mr. Bynum, Mr. Bynum still has the floor unless your question is along the lines of decibels. I can come back to you next. Mr. Bynum: I... Mr. Hull: Just...just to add to another amendment that was placed in the draft bill had to do with the setback and the setback...for...a common rule...rule of thumb you can say for the setback is generally half the height of the structure. It's not quite accurate, but a common rule of thumb for the code right now is half the height of the structure. For wind turbines, the..:the bill was amended so that it'd be 1.1 times the height of the structure. And that's mainly safety concerns and was in other codes, ordinances throughout the nation. That's the standard, as well as recommended by the EPA. But that will have some effect as well as the noise and its effect on the adjacent properties. Mr. Bynum: So to say that a different way, if you erected a tower and it fell down, it could not reach the property line. Mr. Hull: Correct. It...it...correct. Mr. Bynum: Right, so unlike other structures that may fall down and reach the property line, but.... so that will also impact the noise is what 44 • ~ you're saying because it will have to be at least, say if it's a 40-foot total height, it'll have to be at least 40, what is that, 44 feet from the property line. So... Mr. Furfaro: Mis...Mr. Bynum, may...I will continue to give you the floor, but I was just reminded about our lunch hour and the staff. And what I'd like to do is I'd like to, at this time, just excuse the two gentlemen from planning but plan to.be back at lunch time. To ask, because people might want to travel, is there anyone in the audience that would like to give public testimony before we break for lunch. Okay, gentlemen, may I ask you to yield. Carl, I'm going to give you your six minutes and then we're going to break for lunch. CAR,L IMPARATO: Great. Thank you. Aloha, Councilmembers. My name is Carl Imparato. I live in Hanalei. And I spoke last week and subsequently I and Barbara Robeson submitted draft proposed changes to the language of the bill. I wanted to just comment on a few issues that were there. We do need to seek a balance and...between visual impact and the need for alternative energy. I would urge people to think about the fact, though, that one...that allowing wind turbines to be put on the lot next door to you 10-foot over the height limit on the roof or 20-foot over the height limit on a tower is going to impact individuals. So, it's not question of whether there's 50 of them only on the island or 5,000 of them only on the island. Think about the 50 peop..:50 of these units that have neighbors who are impacted by these. So, I...I think that we need to be very concerned about where these are located and that's why in our comments we reeommended that if one wants to build a wind turbine and stay within the existing height limits, they wouldn't need a special hearing. If they want to exceed the height limits, then there should be a use permit and a Class N zoning permit required. And the reason for adding the Class IV zoning permit is because use permit hearings, excuse me, use permits do not require public hearing outside the residential area. So, if someone owns a house let's take on open or on ag lands say in 'Anini, they're not in a residential area and so one could basically get a use permit for something like this without having any public hearings. That's the reason for requiring a Class IV zoning permit to ensure that if someone wants to build a wind turbine next door to you and exceed the height limits, that they would have then had to go through a public hearing where people could raise these issues. I'd also like to point out then, with respect to the height issues, that especially on lots of greater than one acre, typically if you're worried about the houses blocking the wind, build upwind rather than downwind of the house. The other issue I just wanted to raise is the issue of the noise standards. And the DOH noise standards are not really geared to answer the question, how do I ensure that what I build on my lot doesn't impact my neighbor next door. Ka`aina mentioned, I believe, 55 decibels and I think that is where the DOH noise standards are or in that area. A dishwasher in the next room is typically 50 decibels, an ordinary conversation is about 60 decibels. So the DOH standards of 55 decibels are somewhere in that range. Now, you can argue that that's a reasonable amount of noise to make, but it's not reasonable 7 by 24. It's not reasonable 3 a.m. in the morning, and so the DOH standards really are not appropriate for putting an industrial facility on a lot next door to someone who's used to the quiet enjoyment of...and peace of the evening and the night. So that's why in the recommended changes, we recommended changes that would say that the party who wants to build one has to demonstrate that they would create no perceptible noise on...at the neighbor's lot lines. And typically, no perceptible noise...the level of imperceptible change is 1 decibel, barely audible is 3 decibels, and clearly noticeable is 5 decibels. So there's a really big gap between DOH standards for noise and the noise issue here where what we're talking about is letting someone build something right next door and basically change the peace and quiet that neighbors are used to. 45 • i The last issue and the reason we put a suggested change in the bill regarding safety issues is that these are not just like putting telephone poles up. Indeed, if this is a...the proposed draft says that you have to build 110% back from the lot line. So, indeed, if the...if the telephone pole fell over, it wouldn't land on the neighbor's property next door. But what these are effectively are telephone poles with rotating blades on them and when something like that has a catastrophic event you don't expect a rotating blade just to fall straight to the ground. So, I think that while we didn't recommend safety standards, we did say that if there are other safety standard...safety issues that need to be considered, those should be taken into account during the Class IV zoning permit and use permit hearings. So I just wanted to explain those...those issues that and...and the rationale for why we put those in our recommended changes to the bill. Thank you. Mr. Furfaro: I am going to ask that we break for lunch. Our rules require us to break for lunch for the staff. Carl, if you're back, I understand. If you're not back, we understand. We have circulated your testimony, but on that note I would like to ask the planning department to be back on or around 1:35 p.m. today so we can continue this discussion and... . Ms. Kawahara: When will we be able to ask a question of him? If he comes back here? Mr. Furfaro: Of...of...of him? If he's coming back. Ms. Kawahara: Are you going to come back so I can ask you a question. Mr. Furfaro: Yes. Ms. Kawahara: Okay, thank you. Mr. Furfaro: I...I think that was the indication, but I do want the planning, people back and we will return approximately 1:35 p.m. We're in recess. Thank you. There being no objections, the Committee recessed at 12:36 p.m. The Committee reconvened at 1:40 p.m., and proceeded as follows: Mr. Furfaro: Okay, we're calling the Planning Committee back from recess. We finished lunch and I want to make note that Mr. Bynum, you had the floor before we went to lunch. We had Mr. Imparato's testimony and I don't know if you want to direct anything at him, but I know Lani did. But I want to ask if...if you want to extend the courtesy to give her the floor. Mr. Bynum: Absolutely. Mr. Furfaro: Okay, fine. You are recognized, Councilwoman. Ms. Kawahara: Thank you, Committee Chair Furfaro. Regarding...you were talking about the blades and the setback, right? Mr. Imparato: Right, right, correct. Ms. Kawahara: Yeah, you...did...were you able to learn that the planning department found it's common practice to do that 1.1? 46 Mr. Imparato: - I don't know where the planning department came up with the 1.1 and I'm not advising that it needs to be greater. I'm saying, though, if one considers just that it's a structure, a static structure, then 1.1 times the height will certainly keep it on the owner's property, but it's really not a static structure. It's a structure with a rotating blade, rapidly rotating blade, something like 5 times per second. So, I'm not sure that those kinds of standards are necessarily applicable there. . Ms. Kawahara: Okay. . Mr. Imparato: In our comments, we did not try to venture a guess as to what the appropriate setback should be and I think it would depend on the nature of the specific type of wind turbine that was there. So I think that what the county needs to do is basically say, we're going to look at each of these on a case by case basis to...and we have the right as the county to impose additional standards if we believe this type of structure...this type of wind turbine may pose more of a danger. Ms. Kawahara: Okay. I forgot to thank you for coming back after lunch because you didn't have to. Mr. Imparato: A pleasure to be here. Ms. Kawahara: Okay, is...as I go about deciding it...what we're going to do, there's...there's information here that says that that number is published and recommended by the American Planning Association and that it's common practice to mandate the towers be at least equal to the total height respective. So... Mr. Imparato: Towers in general or wind towers? Ms. Kawahara: I think they're talking about the wind towers. Mr. Imparato: And again, you know, I don't necessarily say that it should be greater than that and in our...in our proposed comments we didn't advise increasing the setback but rather letting the county put another clause in it that says that if necessary the county can require a greater setback for safety purposes. Ms. Kawahara: Okay and then the noise. Mr. Imparato: Mm-hm. Ms. Kawahara: Is it reasonable to ask for imperceptible noise in the neighborhood? Mr. Imparato: I think it's reasonable to ask that when the county is giving a new right to someone that that...in creating that new right, it doesn't create a new burden on other folks. And it's one thing to talk about noise that occurs sporadically, but on the other hand, these are basically industrial equipment that can be operating 7 by 24, 3 a.m. in the morning, 4 a.m. in the morning, and so that's a different type of noise than, you know, asking the people to be quiet at 8 in the evening. So, let....let me say this, the vendor, Kaua`i Electric, said, I believe before you and before the Planning Commission, that the units that they sell have a decibel rating of 0.45, less than 1/2 decibel. So, I guess, my question...my point would be, well if indeed they are as quiet as their claims to be, then there should be no problem in mandating that they be that quiet. You know, the thing...and the 47 0 0 concern isn't always...isn't just the industrial equipment that Kaua`i Electric might sell, than one vendor, but I'm sure we'll have a whole bunch of home-grown devices that people build and the question is how do we protect neighbors from that and if there's nothing in the standard...no noise standards in the bill, then there's nothing for the county to hang its hat on other than the DOH standard, which are really not designed for maintaining rural quiet. Ms. Kawahara: Okay. I just...I just...that caught my eye because every house or place I've ever rented is not...doesn't have...it has noise at some point and it's not...there is no imperceptible noise. Mr.Imparato: Sure, but not with equipment that's operating 24 hour...could operate 24 hours. Ms. Kawahara: Okay and then the other question was it's a full acre that these are going to be on, an acre or more, right? Mr. Imparato: Mm-hm. Ms. Kawahara: So, like you said, it's conceivable that it's in the middle or wherever of that acreage and from both sides they won't be able to hear it or wherever they are. Mr. Imparato: Right. Ms. Kawahara: Because it's...because it's on a whole one acre. Mr. Imparato: Right and the issue is no noise at the ba...at the neighbor's property line, not that it generates no noise at all. Ms. Kawahara: Okay. Mr.Imparato: The concern, of course, beyond the one acre, though, is that the bill would allow these to be on lots...virtually any lots that are smaller than one acre subject to basically a use permit and again, a use permit doesn't even require a...necessarily require any sort of public hearing. A use permit in a residential zone requires a public hearing. A use permit in an ag zone or open...in other areas, it does not require public hearings and there are small lots where people live in those other zones. So, again that's why I don't think it's sufficient protection. And again, I...I...I'm not opposed to what's the...what people are trying to achieve here with this bill. I think it's just a question of putting in a few more protections to make sure that what's being done doesn't harm people in the process. Ms. Kawahara: Okay, thank you. Thank you, Chair Furfaro. Mr. Furfaro: Any other questions? Mr. Kaneshiro: I have one. Hi, Carl. You know, I think you also mentioned a proposal that it shouldn't be more than 100, no 10 kW. Mr. Imparato: Correct. Mr. Kaneshiro: Okay, my question is, you know, in an ag district where you have probably 100 kW, instead of getting 5, 10 kWs per...10 kWs, 48 • ~ one...one of those units would be able to probably accommodate a bunch of homes. So, I mean if we put a...prohibition like this in this bill, we're not really allowing that to happen on ag lands. Mr. Imparato: I understand what you're saying and...the...we, we had in our comments recommended that this bill apply to units of 10 kilowatts or less. Ten kilowatts would probably power probably 6 or 7 homes; a hundred kilowatts would power typically 60-70 homes if it was operating fulltime. The issue here is that this bill, though, gives rights to build these units on...units on lots of one acre or less than an acre. So, I think that if you're going to create all these rights, that anyone by right can put something on a lot of one acre without any other permits, then you have to say, well, how big and...and that's where I'd say that this bill should cover 10 kilowatts or less. Mr. Kaneshiro: I see. Mr. Imparato: If someone wants a larger one, that's fine, come in and ask for a variance. Mr. Kaneshiro: Okay, I mean...because basically the bill covers all wind, you know, not only like what you're referring to. But the bill itself covers, if I'm not mistaken, Mr. Bynum, any kind of wind energy up to 100. Mr. Bynum: Up to 100. Mr. Kaneshiro: Right, so... Mr. Bynum: Which is kind of a generally accepted definition of what a SWEC is. Mr. Kaneshiro: Yeah, okay. But his...his perception is have this bill centered more to smaller type of operation rather than a large operation. Mr. Imparato: . Right and that's not opposed to the larger ones. Mr. Kaneshiro: - Okay. Mr. Imparato: Just saying this bill is tailored towards how you go in and get something done very, very quickly and easily. Mr. Kaneshiro: All right. Mr. Imparato: And that's fine for the small ones. Mr. Furfaro: Okay, did you have a question, Mr. Bynum? Mr. Bynum: Yeah, sure. Mr. Furfaro: The floor is yours. Mr. Bynum: Thanks for coming, Carl. And I appreciate your input. Yeah, I...I...I am also concerned about the noise standards and because I think as the planning department said, kind of it's the air-conditioning units that people tend to look at. It's like, hey, my neighbor might put in central air. That central air might make noise and it...it, you know the unit may be close to my property line and I may hear it. What's a reasonable amount? Or my neighbor did 49 • • put in a window air conditioning that was right off of my living room, right. And...and so the Health Department set standards for noise. And 55 may very well be accessible. I mean that's something that I personally want to look into. On the other hand, imperceptible is very conservative, you know. And so, I appreciate the input and, you know, I...I want to look at the issue as well. But there may be a position somewhere between 55 and imperceptible that you might find acceptable or others might find acceptable. Mr.Imparato: And...and I have tried to...to find some and that...even searched on the Internet and it's not my field of specialization, acoustics and all, but I haven't really found much out there and I acknowledge that, you know, there's...reasonable people can agree that...can disagree as to what's the right solution there. I would just say that we need to balance the perceived benefits of these units with the burdens that they create and I would prefer that we don't create a whole new set of burdens for property owners or residents, excuse me, that they have to hear some new noise, if possible. Mr. Bynum: And I...I certainly agree that a certain level of noise above and beyond a certain level is unacceptable, and so that's something I want to look into more. And...and I do appreciate your input. I felt, from my own view, that the planning department with the public input they perceived...with what they received and had done a pretty good job of balancing that...that pragmatic reality that, you know, some utilities are above residential heights now and because of the pragmatic need to be and that wind fits in that. That we're not allowing a structure to be built as a very large footprint either that if I looked at a typical, say ag lot, I would see a home and I would see one, perhaps two windows, in a 3- or 4-acre parcel, but it's just that one portion that's going to go above the visual plane of the house, right. - So, you know, so I don't know how you address the pragmatic reality that for them to be efficient and to meet the energy needs that the individual has, they need to get above the, you know, the obstacles, right, and so. And that's something, I guess, we'll decide on what's a reasonable balance. Mr. Imparato: I think that's why for example, the example you used of a 3- or 4-acre ag lot, you know when we're talking about those larger lots, then indeed it may be appropriate to allow something to be 20, 30, 40 feet above the height limit. You know, it's a...a...to even a larger lot, you know the visual impact, the further away you get, you hardly notice because of the perspective. But that I...I don't know that there's an easy way to draft a rule about that other than to say that if you want to exceed the existing height limits, then we'll have a Class N permit required and a use permit hearing and at that point one could make the argument that it's so far into the lot that for to. a visitor or a resident looking at the lot from the lot line, it looks like it's no more than a 20-foot structure. So, I...I...that's why I think that the use permit and Class IV permit hearing is...is the way to go. Mr. Bynum: Can we just close with this thought, the original draft...the...the bill went through several drafts before it got sent to planning, right. The original draft was pretty conservative. Other, especially industry people looked at it and said, oh no, the higher the better. The height limit should be 120 feet, the height limit should be...right. So there was this range of opinions: no, the height limits should be very high; no, the height limit should be low. The draft that I sent to planning kind o£..tried to get a...a compromise and said no, you know, 120 is ridiculous. Let's look at certain lot limits, but I'm not the planning department. I don't live with these realities every day. They do. And so, from the bill that I sent over there, most of the revisions they made were making it more conservative, fewer units per acre, lower height limits and they had really good rationales because the 50 • • ~ planning staff did a lot of homework which I really appreciate. They went out and looked at other bills in other communities. They looked at what kind of is the standard norm around the county for these kind of bills, you know, and came up with what I thought were pretty modest proposals. And, you know, and then I...I value your testimony as well, although I see your proposal is very conservative. It's like no height increase, no perceptible noise, and so it'll be interesting to see what, if anything, we arrive at in terms of that whole field of balance, so... . Mr. Furfaro: Yeah, on that note, I just want to correct in the committee, if we have commentary from the councilmembers or narrative, but if we have questions for Carl. This is to extend his time based on questions, so. Let's keep the commentary towards when we call the meeting back to order. Does anyone have any more questions of Carl? No? Thank you very much. Thank you for your testimony, you and Barbara, and thank you for coming down. Mr. Imparato: Thank you all very much for your attention. Ms. Kawahara: Thank you. Mr. Chang: Thanks for sticking around. Mr. Furfaro: The rules are still suspended. May I ask the planning department if they could come back up. Mr. Aiu: Good afternoon, Chair. Again, Deputy Director Imai Aiu and Ka`aina Hull, planner on the project. Mr. Furfaro: Thank you for coming back after lunch. I am just going to summarize here a little bit and see if there's any more questions for you folks, but I do believe that we will ask for a deferral on this bill based on several things that have surfaced today. Number one, I would like to send a communication over to the Office of Economic Developinent, including Mr. Costa and Glenn. I'm quite concerned that the county would launch a strategic think tank dealing with energy and an energy plan for our island and yet somehow we didn't merge the two departments together, so. I'm going to ask that that communication ask the Economic Development to take a look at your bill recommendation and how it fits. You know, some people may believe this to be a, you know, a cautionary piece; but for me, you know, the county functions as a business unit and this is a significant piece that we're trying to understand what our net results will be and what are the best policies. So secondly, we've had testimony today about setback issues and decibel readings dealing with the Department of Health. We have some offers of what might be considered , conservative alternatives or potential amendment. The question also deals with permitting levels. Perhaps there's some recommendations of making certain that it triggers a public hearing at permit level IV. I have circulated a first draft of the energy bill to this point. Were you gentlemen privy to that by chance? Did you get it in a handout that I circulated today? Mr. Aiu: Yes, we did. Mr. Furfaro: Good, very good. And I'm also very concerned about the infrastructure issues as we see people wean themselves off of the infrastructure requirements for power on the island. You know, is HIUC looking at a rate application that might give some consideration for that in a two-tier plan. So, you know, based on...on those kinds of comments that have been submitted to us in writing and I think our need to have a better understanding on how these two 51 • • bills and our strategic plan merges together, I'm going to ask for a deferral from the members. But before I do, let me ask the members if they have any more questions of you. Mr. Bynum. Mr. Bynum: I believe before we took the break I was talking with...asking questions and then we went to public testimony, so I just wanted to finish up with... Mr. Furfaro: Yes, go right ahead. You...you have the floor. That's why I asked them to come back. . Mr. Bynum: And I just gotta get my train of thought back here. Mr. Furfaro: Let me let you get your train of thought and see if anybody else has something to ask. Mr. Chang: I think I got... Mr. Furfaro: Mr. Chang, go ahead. Mr. Chang: I think I have my train of thought. Mr. Furfaro: Okay, good. . Mr. Chang: I hope. You know I was wondering when we talked a little bit about noise and having a rapidly rotating blade, do we know anything about perhaps vibration? You know, whe...whether the...the windmill is mounted on a house or the unit itself...do we know what vibration affects the neighboring property? Mr. Aiu: I would imagine that the...subassembly must vibrate just by physical reality; however, I'm not aware of any statistics, you know, documenting the...how much or the effects of. Mr. Chang: Yeah and I guess the last thing I wanted to comment on is, you know, when we talk about the wind, I guess we always make refer...reference to the trades in...in most cases, but I would imagine in the times that we do have Kona winds, the noise can affect something that we normally wouldn't think of coming from one way, now it's happening the other way and...and of course rain might make that much more noise in that area. So I just thought about that as a consideration. Mr. Hull: Just in reference to differentiating winds and winds changing direction, not all but some and the primary SWEC that has been permitted and constructed on the island of Kaua`i right now is a...is...it's basically on a swivel head so it...it's able to maneuver itself to the change of the. winds...of the wind direction. Mr. Chang: Thank you. Mr. Furfaro: And on the North Shore we have Kalalau wind and Kona winds, so. Mr. Bynum, are you ready? Mr. Bynum: Yeah. Mr. Furfaro: The floor is yours. 52 • • Mr. Bynum: So we talked about noise and visual impact and I also want to...that...and you mentioned it briefly but there are tower-mounted facilities that your proposal would allow a 20-foot height above the existing height limit in different, so that would be different on the North Shore than it would be in Kapa`a, for instance, right?, ' Mr. Hull: In the draft bill, I...I think what you're referring to is the North Shore Development Plan? Okay, well, there's different type standards for different zoning districts. So the Ag has a 54=height standard, the residential has a 30-foot height standard. So, under the bill, the tower-mounted would go...would be allowed to go up to 50 feet in the residential and 70 feet in the agriculture. For the North Shore Development Plans...under the North Shore Development Plan, all structures are limited to 25 feet in the North Shore District, basically from approximately Moloa'a Valley on. In the draft bill, that development plan is addressed and it essentially allows that 50 and then 20 for the agri...it essentially allows the same heights in Kapa`a as it would in the North Shore. Mr. Bynum: So it doesn't provide for a different height limit in the development plan that has a lower height. Mr. Hull: No it doesn't. Mr. Bynum: But it could say if it's 25 now, we could amend the bill to have that be 20 feet above the development plan limits. Mr. Hull: Correct. Mr. Bynum: So then...okay. Mr. Furfaro: Excuse me, along those lines, how do you override the development plan, the citizens' development plan? Mr. Hull: Well, the citizens'...the development plan is...is part of the Kaua`i County Code and specific language was crafted, was worked with the county attorneys. I have to find the specific (inaudible) here. Mr. Furfaro: Let me...let me ask if we can pose a question since it's on Mr. Bynum's floor time, but it's on the same item. So what about other utilities like radar towers and cell phone towers and microwave relays and... Mr. Hull: Well, a lot of those... Mr. Furfaro: And how does that go over? Is it...doesn't it trigger a...a public hearing? Mr. Hull: They do as communication facilities and whatnot they do. Mr. Furfaro: You can direct me to the section of the bill that covers that at a later time. Mr. Hull: Okay, okay. Mr. Furfaro: I'll give the floor back to Mr. Bynum. 53 • • Mr. Bynum: So but in the North Shore Development Plan, utilities would have that 20-foot height increase? Is that correct? Mr. Aiu: Yeah, there's...there is basically language within the CZO that allows...that gives a broader blanket to utilities on their height and placement. Mr. Bynum: Then in the North Shore Development Plan, have there been structures built there that exceed the.height limit? Mr. Hull: There have. Mr. Aiu: Probably. Mr. Hull: And...and there's a... Mr. Aiu: You know. Mr. Hull: There is a process. Mr. Aiu: For everyone who... Mr. Hull: The process in place is basically you have to apply for a use or generally it's a variance that you apply for in order to exceed the height, but specifically outlined in the North Shore Development Plan; you can exceed the height by getting...by ascertaining a use permit from the planning commission. Mr. Bynum: And those for...for resort development, the North Shore Development Plan envisioned two stories in essence arid a number of resort developments have been allowed three stories. Is that correct? ; Mr. Hull: Correct. , ; Mr. Bynum: So... Mr. Furfaro: But the procedure...my point is the procedure is you have to apply and it triggers a public hearing. ; Mr. Hull: Right. ; Mr. Furfaro: Okay, that's...that's...that's all my point is. Mr. Bynum: I understand that. Okay; that's all for now. Thank you very much. Ms. Kawahara: Thank you. ; Mr. Furfaro: Any other questions of the planning department before I call `our meeting back to order. And I would also like to confirm that that application is based on its 25 feet from the highest point of your property, right? Mr. Hull: From the existing grade... Mr. Furfaro: From the. existing grade. Mr. Hull: ...from where the structure is situated. 54 • • Mr. Furfaro: So with...I just point that out because of the terrain and the many valleys and so forth on the North Shore, it is from the highest grade. Am I correct? Mr. Aiu: I don't believe it's from the highest grade on your property. I believe it's from grade at building. Mr. Furfaro: From building grade. Mr. Aiu: Yeah. Mr. Furfaro: Okay, that answers my question. Okay. Mr. Hull: And just to...to reiterate when you were asking about the basically the section of the code...the...the...the bill... Mr. Furfaro: Oh, you found it? Yes, please share that with us. Mr. Hull: Yeah, Section 8-28.1. Mr. Furfaro: Go ahead. Is there anything you want to add to that other than to just direct us to that section? Mr. Hull: I can read it if you like or... Mr. Furfaro: No, we'll...we will take it. Thank you and we appreciate your time today. So I'm going to go ahead and call the meeting back to order. There being no further questions, the meeting was called back to order, and proceeded as follows: Mr. Furfaro: I earlier stated my position asking for a deferral, but before I go any further on that comment because once we have a deferral there's no discussion, may I ask if there's any further discussion. Go ahead. Ms. Kawahara: Yeah, this is regarding the...the reason that you gave for the deferral and I...I'm fine with the deferral, but I was just concerned about one of them when you were talking about the infrastructure and the rate consideration for HIUC, so actually there's two things. I just want to be sure that our...we're not...that...that our legislation is not being driven by whether or not a company has a rate structure yet. Mr. Furfaro: Oh, maybe I should explain that to you, Lani. Ms. Kawahara: Yes. Mr. Furfaro: My concern is the seven of us who are sitting at the table, you and Mr. Bynum have wind turbines and during certain peak demand periods like when we come home, we all going `au`au, we going cook our dinner, the demand rate goes up and there's no wind that day. But to.handle the consistent transmission of power, there's another cost with the utility company of which you may not experience during the low time of demand because you're creating your own time and therefore, if there is a two-rate tier planned, that's my question. It's for all of us that don't put in necessarily a solution to energy in the form of wind but yet at the same time we still have' escalating cost association with...associated with 55 I • • distribution. But since you have less demand, your rate is lower, but you're using the common features of distribution. So it ends up with the other rate payers maybe paying more. Ms. Kawahara: Okay, okay, so you're talking about the impact to all the rate payers. Mr. Furfaro: I'm talking to all the rate payers. Ms. Kawahara: And not...not the operations of HIUC and whether or not they establish...okay. Mr. Furfaro: No, no, and so, thank you for giving me that time, but... Ms. Kawahara: Okay, great. Mr. Furfaro: That is a consideration and I think it was surfaced also in Mr. Imparato's narrative as well as Mr. -John Gordon's. That...that is a question for the utility company. Ms. Kawahara: Thank you for the clarification. And the other thing was the delaying for the midway point of the sustainability plan that we have right now. I just wanted to point out that I did...I emailed Jill Sims. I guess she's the project manager and...and asked her if she thought anything in that bill would...would, you know, preclude us from continuing on or waiting for the...waiting for this half...halfway mark. And she hasn't replied to me, but I thought it was an interesting point... Mr. Furfaro: I...I...I appreciate that and I said I will be sending a communication, but my surprise is we're spending $400,000 on a strategic plan that will answer five items that I just surfaced and i find it a little boggling that there's no dialogue going on between departments. Ms. Kawahara: Okay, thank you. Mr. Furfaro: And that's what I'm going to be communicating. Ms. Kawahara: Yes, okay; thank you. Mr. Furfaro: Thank you. Any other dialogue before... Yes, Mr. Bynum. Mr. Bynum: Yeah, I just want to say I'm glad that we're having this discussion regarding small wind energy and because if you have been, and many of you have, to energy forums on the is lan d, t he experts come from t he mainland or from elsewhere and they say, hey, we are the most dependent on fossil fuel as anywhere on the planet and we have the highest utility rates...one of the highest utility rates in the country and so the bad news is we have very little alternative energy happening. The good news is the experts always tell us is that we have tremendous potential. Because of those high rates, there's often a very quick return on investment when alternative energy is placed in the docket. But for all of that talk, we have very few alternative energy programs coming on-line, whether they're at utility scale or at private scale. The last few years we've all been to dedications of solar projects at the Hyatt, solar. projects at Pioneer Seed, solar projects at Wilcox Hospital, co-generation at the Marriott. The big players here are, 56 I • • you know, they have the investment, they have the time, they see the return on the investment and they are jumping in and generating their own energy. And...but it's been an obstacle for the little guy, for the guy who has a small farm or is on ag land or maybe wants to put a-what's it called-vertical axis wind...small wind system on the top of their home so they can have some destiny over their energy future. The purpose of this bill was to try to address those obstacles. We know that the first individual that put up a small wind system had to drop...jump through a lot of hoops including demonstrating that it was part of an agricultural plan. Wind systems and agriculture have been traditional for many years and that's great, but I think we've entered an era where wind systems or photovoltaic or whatever alternative energies don't need to just be tied to agriculture. They need to be about avoiding the use of fossil fuels, about reducing our carbon footprint, and I would like to see residential people be able to get in on the deal, not have to be and have the capital scale of a hospital or a Hyatt, and this wind energy is the potential way to do that because the experts also tell us that wind energy should...needs to be part of our alternative mix in the future. I think Councilmember Furfaro brings up some interesting issues because I'm hearing for some of those big players that there is going to be...that HIUC is proposing a differential or a fee to be hooked up to the system, which...because as HIUC deals with the debt service that they have as a coop, as the big players generate their own energy, one of my concerns is who carries the burden of that debt service and so that's an issue that we need to address and that's important to our community. But I would like to see smaller players empowered to contribute to alternative energy and this is one potential way to do it. As I said earlier, I believe that the planning department and the hearings that happened at the planning commission came up with a fairly balanced thing that we may look at making some changes to, but there is definitely a trade-off, you know. In the best of all worlds there's no visual impact and we put up alternative energy and there's no visual impact. But in that world that we live in now where we're dependent upon foreign oil, where we're beholding to Arab Emirates, where the whole planet is coming around and saying that we need to get serious. One of the best books I read this year was called "Hot, Flat, and Crowded," and .I'd encourage everyone to read it, which basically says we need to be leaders in a new, green and clean energy future. And there will be some trade-offs for that. I personally am prepared to see wind systems on larger lots that exceed the height limit as a part of the trade-off that we need to make in. order to do our part as individuals and as a community and to wean ourselves off of foreign oil and make us less dependent upon the whims...the political whims for . our future and our sustainability. And so, I'm thrilled that this is happening. I certainly would support a...a deferral. I would request that that be def...deferral be like most of our deferrals for two weeks and that the people we're seeking information for we make every effort to get that and that we continue the dialogue and if necessary defer again. But I'm concerned about a deferral that hasn't a...that goes beyond that because in this binder right here are several bills that have been in deferral for one year, two years, three years and I think there is a sense of urgency about trying to address these energy issues that is felt by a big portion of our community, so. Thank you very much. Mr. Furfaro: Anybody else have any comments before I close the comments? Mr. Asing: Yes. Mr. Furfaro: Mr. Chair. Mr. Asing: I think Councilmember Bynum brings up some very valid, good points. I guess, you know, my...my concern is that, you know, the 57 • • visual, environmental and noise problems are problems that are real problems. Now you know the term beauty in the eyes of the beholder, I will tell you that my feel when I go to Maui and I get to Kahului and I look to the left and I see all of those windmills on the hillside, for me as an individual, yeah, it's not acceptable. Now, it's acceptable, I guess, to most people and Maui County and everybody else maybe, but to me it's not. It's a blight. While I think it's good, I think it serves a good purpose, the trade-off for me is too much; it's too high, yeah. And so I understand and I think there's got to be some trade-offs, but I'd like to try to keep the trade-off as minimal as possible. The noise probiem that I mentioned earlier, you weren't here at that particular time, it was horrors. It was horrors to the point where the individual actually sold his house and left. It got that bad and it was this wooo-wooo-wooo sound, you know from the wind and the windmill going. And it was like, as mentioned by...by Carl, it's 24/7. So, you know the individual had just sleepless nights and couldn't take it anymore. So, you know, I just have some concerns and that was a long time ago, technology has changed and maybe it's better and it's acceptable, and I can understand that. But I...I just want to be sure and then the second part to my concern is, you know, we have an energy sustainability plan that, you know, we paid $400,000 for that...that's coming out and I believe that we should tie that together. So, that's, you know, my feel and no doubt Councilmember Bynum brings up some good issues, good points. But those are my concerns and I believe my...my concerns are valid and real also. So, I just have those concerns and thank you very much. Mr. Furfaro: Thank you, Mr. Chair. Mr. Kawakami. Mr. Kawakami: Thank you, Mr. Chair. I think this bill is a good step in the right direction. Do I think it's going to substantially reduce our dependency on fossil fuel? No, I think it's part of the puzzle. Do I think it's going to benefit the people that we say it's going to benefit, the little guy? I question bhat. The only reason why I question it is because you're only allowed one if you're in a residential area on a lot that's what, an acre or larger in size, so, I mean, how many guys do we know that have lots that are more than an acre? I think it'll help the commercial guys. When you think about who's in the commercial district, it's businesses, so yeah. There it's 20,000 square feet, so I think it'll help the commercial. Do I think it's the appropriate first step? No, I think conservation is the first step. You want to reduce your dependency on fossil fuel, use less energy, you become efficient. Do I think that this is an important piece of the puzzle? I...I could say that it's a step in the right direction, but I...I don't see it substantially reducing our dependency on fossil fuel. I see it helping out people that have big lots in residential areas. I see it helping out businesses and...and of course, providing some aid to the farmers that need to depend on this. So, I look forward to working on it again and I can support the deferral. There's a lot -more questions I have, then it will give me some time to get some answers, so thank. you, Mr. Chair. Mr. Furfaro: Thank you, Mr. Kawakami. Anyone else before I close? Okay, I...I do want to make a...a statement here that, you know, I strongly support alternative energy sources. In fact I was the general manager of the Sheraton Coconut Beach when we put in the first co-generation plant on a shared revenue plan. I'm also a recipient of the Green Star Award for reduction and conservation. I do want to say the point that I am concerned with here, whether we call it as I refer to it as a two-tiered rate structure, a differential rate, what we need to be aware of and why I co-introduced the $400,000 that supports the Energy Strategic Plan is we have a utility company that's using...losing base customers. All the items that Mr. Bynum talked about, they're all great. They reduce our fossil fuel. But from a business standpoint, we need a strategic plan because as you reduce your base, you still have fixed operating cost, repair and maintenance items 58 . • and items that also reflect investments in future generation...future generations not of people but generation of power. Those assessments are...actually become part of the rate base. If you have a group that wants to demand energy only at peak times or the deflation of certain natural resources, but they still participate in the need to get transmission to their place, they should be charged in a tiered structured rate or charged for that differential based on the fact that when they need power, they're going to come on-line. So, I want to...I want to make sure that we understand the reason behind the energy conservation and strategic plan that we funded and (inaudible). And all departments in the county need to be behind it because ultimately that plan is going to tell us what kind or ordinances we need to talk about in putting in place. And yes I do believe a wind ordinance will be one of those many ordinances. But, you know, from a business standpoint I'm only bringing this to your attention because, you know, we paid X amount of dollars for the utility company, the people of Kaua`i. As you lose customer base, it doesn't change the cost of reinvestment, repair and maintenance, and those go through an application process. So, as the hospital comes off-line, off certain hotels, co- generation in 1977 did not solve all the problems. That was a total disaster in 1977, but I have to tell you we have to be thinking in those terms that the ongoing operation and additional generation or subsidized generation from solar, wind, ocean, hydro, you know, are all going to be in that plan and it wasn't more evident than the comments made from the Cost Control Commission in the Garden Island about controlling our own energy, which is Mr. Kawakami's point about conservation. But the whole idea is to have a total plan as we know in a key result area. We are losing customer base because of the need to find alternatives to our fossil fuel generation which represents 94% of our power source today. And...and that's what I'm...I'm concerned with as it relates to where we're going with the tiered or the differential rates and what will the plan tell us about what we might lose as a customer base for HIUC. So, on that note, can I have a motion about deferral? Upon motion duly made by Councilmember Bynum, seconded by Councilmember Kawahara, and unanimously carried, Bill No. 2317 was deferred. CR-PL 2009-06: on Bill No. 2291 A BILL FOR AN ORDINANCE AMENDING SECTION 8-24.1, KAUA`I COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE [Approved.] There being no further business, the meeting was adjourned at 2:26 p.m. Respectfully submitted, Wilma Akiona Secretary APPROVED at the Committee Meeting held on August 12, 2009: JAY Chair, Pl 'ng Committee 59 I DRAF'I FLOOR AMFNDN1EN'i A • ~ PAGE2of2 ' Department for the purpose of ascertaining compliance in the case where the farm worker housing must be removed Said agreement shall be recorded in the Bureau of Convevances or the Land Court as the case may be. Nothing in the agreement shall prevent the Planning Department from making as manv inspections as mav be necessarv for the enforcement of other planning laws; (5) Be located on the subiect uarcel where the farming is occurring; I (6) Meet all health safetv and Occupational Safetv and Health Administration (O.S.H.A.) requirements; and I (c) A lot shall be eligible for farm worker housing onlv when all of the lot's I respective maximum permitted residential densities as established in Section 8-7.5, have been permitted and constructed. ,(d) Prior to the issuance of the building permit the applicant shall demonstrate to the satisfaction of the Planning Director that the applicant has recorded in the Bureau of Conveyances or the Land Court as the case mav be, the requirements and conditions set forth in Sections 8-7 9(a) and (b) respectivelv, explicitlv stating that the use permit does not run with the land but is personal to the specific aUplicant and that anv subsequent owner must secure a separate use permit for farm worker housing. (e) The land upon which the farm worker housing is located shall not be subdivided to create separate lots for the farm worker housing and the farm. If a use permit for farm worker housing on the lot is approved the lot shall not thereafter be submitted to a condominium propertv regime unless the use permit is rescinded and the farm worker housing is removed. (f) The owner of farm worker housing shall annuallvi certify to the Director of Planning that the Farm Worker Housing meets reauirements and conditions set forth in Sections 8-7 9(a) and (b) above and shall give written consent to the Planning Department for an annual announced inspection bv the department. (Material to be deleted is bracketed. New material is underscored.) I ~I I DRAF'I FLOOR AMIINDMIIVZ B PAGE 1 of 19 (July 15, 2009) D ~ FLOOR AMENDMENT Bill No. 2318, Draft 1, Relating to Farm Worker Housing INTRODUCED BY: Jay Furfaro Amend Bill No. 2318, to amend Sec. 8-1.5 to read as follows: Sec. 8-1.5 Definitions. When used in this Chapter the following words or phrases shall have the meaning given in this Section unless it shall be apparent from the context that a different meaning is intended: "Accessory Building" or "Structure" means a building or structure which is subordinate to, and the use of which is incidental to that of the main building, structure or use on the same lot or parcel. "Accessory Use" means a use customarily incidental, appropriate and subordinate to the main use of the parcel or building. "Adult Family Boarding Home" means any family home providing for a fee, twenty-four (24) hour living accommodations to no more than five (5) adults unrelated to the family, who are in need of minimal 'protective' oversight care in their daily living activities. These facilities are licensed by the Department of Health, State of Hawaii under the provisions of sections 17-883-74 to 17-883-91. "Adult Family Group Living Home" means any family home providing . twenty-four (24) hour living accommodations for a fee to five (5) to eight (8) elderly, handicapped, developmentally disabled or totally disabled adults, unrelated to the family, who are in need of long-term minimal assistance and supervision in the adult's daily living activities, health care, and behavior management. These facilities are licensed by the Department of Health, State of Hawaii, under the provisions of sections 17-883-74 to 17-883-91. "Agriculture" means the breeding, planting, nourishing, caring for, gathering and processing of any animal or plant organism for the purpose of nourishing people or any other plant or animal organism; or for the purpose of providing the raw material for non-food products. For the purposes of this Chapter, Agriculture shall include the growing of flowers and other ornamental crops and the commercial breeding and caring for animals as pets. DRAFZ. TLOOR AMENDMIIV'I B . ~ PAGE 2 of 19 ' "Alley" means a public or permanent private way less than fifteen (15) feet wide for the use of pedestrians or vehicles which has been permanently reserved and which affords, or is designed or intended to afford the secondary means of access to abutting property. "Animal Hospital" means an establishment for the care and treatment of small animals, including household pets. "Apartment" See Dwelling, Multiple Family. "Apartment-Hotel" means a building or portion thereof used as a hotel as defined in this Section and containing the combination of individual guest rooms or suite of rooms with apartments or dwelling units. "Applicant" means any person having a controlling interest (75% or more of the equitable and legal title) of a lot; any person leasing the land of another under a recorded lease having a stated term of not less than five (5) years; or any person who has full authorization of another having the controlling interest or recorded lease for a stated term of not less than five (5) years. "Aquaculture" means the growing and harvesting of plant or animal organisms in a natural or artif'icial aquatic situation which requires a body of water such as a pond, river, lake, estuary or ocean. "Base Flood" means the flood, from whatever source, having a one percent (1.0%) chance of being equalled or exceeded in any given year, otherwise commonly referred to as the 100-year flood. , "Base Flood Elevation" means the water surface elevation of the base flood. "Building" means a roofed structure, built for the support, shelter or enclosure of persons, animals, chattels or property of any kind. The word "building" includes the word "structure". "Cemetery" means land used or intended to be used for the burial of the dead and dedicated for cemetery purposes, including columbariums, mausoleums, mortuaries and crematoriums, provided the crematorium has the approval of the Department of Health, Planning Commission and Council when operated in conjunction with and within the boundary of the cemetery. "Center Line" See "Street Center Line". DRAF'I FLOOR AMENDMEN'I B PAGE 3 of 19 "Church" means a building designed for or -used principally for religious worship or religious services. "Coastal High Hazard Area" means the area subject to high velocity waters, including but not limited to coastal and tidal inundation or tsunami. The area is designated on a FIRM as Zone VE. "Commercial Use" means the purchase, sale or other transaction involving the handling or disposition (other than that included in the term "industry" as defined in this Section) of any article, substance or commodity for profit or a livelihood, including in addition, public garages, office buildings, offices of doctors and other professionals, public stables, recreational and amusement enterprises conducted for profit, shops for the sale of personal services, places where commodities or services are sold or are offered for sale, either by direct handling of inerchandise or by agreements to furnish them but not including dumps and junk yards. "Compatible Use" means a use that, because of its manner of operation and characteristics, is or would be in harmony with uses on abutting properties in the same zoning district. In judging compatibility the following shall be considered: intensity of occupancy as measured by dwelling units per acre, pedestrian or vehicular traffic generated, volume of goods handled, and other factors such as, but not limited to: vibration noise level, smoke, odor or dust produced or light or radiation emitted. "Conforming" means in compliance with the regulations of the pertinent district. "Construction, Commencement of' means the actual placing of construction materials in their permanent position, fastened in a permanent manner. "Contiguous Lots or Parcels in Common Ownership" means more than one (1) adjoining lot or parcel each of which is owned in full or part by the same person, or his representative. "County Engineer" means the County Engineer of the Department of Public Works of the County of Kauai. . "Cultivation" means the disturbance by mechanical means of the surface soil to a depth less than two (2) feet where the original grade and shape of the land is not substantially altered, for the purpose of planting and growing plants. r DRAFZ FLOOR AMDMEN'I B . ~ ~ PAGE 4 of 19 "Day Care Center" means any facility which complies with the State of Hawaii licensing requirements where seven or more children under the age of 18 are cared for without overnight accommodations at any location other than their normal place of residence. This term includes child care services and other similar uses and facilities consistent with this definition, and not covered by the "Family Child Care Home" definition. "Day Use Areas" means land, premises and facilities, designed to be used by members of the public, for a fee or otherwise, for outdoor recreation purposes on a daily basis. Day use areas include uses and facilities such as parks, playgrounds, picnic sites, tennis courts, beaches, marinas, athletic fields, and golf courses. "Density" means the number of dwelling units allowed on a particular unit of land area. "Developed Campgrounds" means land or premises designed to be used, let or rented for temporary occupancy by campers traveling by automobile or otherwise and which contain such facilities as tent sites, bathrooms or other sanitary facilities, piped water installations, and parking areas, but not including mobile home parks. Developed campgrounds may include facilities for the temporary placement of camp trailers and camping vehicles which are utilized for non-permanent residential uses at no more than six (6) vehicles per acre. "Distance, Measurement of' means unless otherwise specif~ied, all distances other than height shall be measured in a horizontal plane. Height shall be measured vertically. "Diversified Agriculture" means the growing and harvesting of plant crops for human consumption which does not involve a long-range commitment to one (1) crop. Diversif~ied Agriculture includes truck gardening and the production of fresh vegetables, and minor fruit or root crops such as guava or taro. "Division of Land" means the division of any lot or parcel or portion thereof into two (2) or more lots, plots, sites or parcels for the purpose, whether immediate or future, of sale, transfer, lease, or building development. It includes subdivisions and resubdivision and other divisions of land and may relate to the process of dividing land or to the land or territory divided. "Dry Cleaning" means the process of removing dirt, grease, paints and other stains from wearing apparel, textile fabrics, rugs and other material by DRAF'I FLOOR AMENDMEN'I B PAGE 5 of 19 , • • the use of nonaqueous liquid solvents, flammable or nonflammable, and it may include the process of dyeing clothes or other fabrics or textiles in a solution of dye colors and nonaqueous liquid solvents. "Dump" means a place used for the discarding, disposal, abandonment, or dumping of waste materials. "Dwelling" means a building or portion thereof designed or used exclusively for residential occupancy and having all necessary facilities for permanent residency such as living, sleeping, cooking, eating and sanitation. "Dwelling, Multiple Family" means a building or portion thereof consisting of two (2) or more dwelling units and designed for occupancy by two (2) or more families living independently of each other, where any one (1) of the constructed units is structurally dependent on any other unit. "Dwelling, Single Family Attached" means a building consisting of two (2) or more dwelling units designed for occupancy by two (2) or more families living independently of each other where each unit is structurally independent although superficially attached or close enough to appear attached. "Dwelling, Single Family Detached" means a building consisting of only one (1) dwelling unit designed for or occupied exclusively by one (1) family. "Dwelling Unit" means any building or any portion thereof which is designed or intended for occupancy by one (1) family or persons living together or by a person living alone and providing complete living facilities, within the unit for sleeping, recreation, eating and sanitary facilities, including installed equipment for only one (1) kitchen. Any building or portion thereof that contains more than one (1) kitchen shall constitute as many dwelling units as there are kitchens. "Easement" means an acquired privilege or right of use or enjoyment which an individual, firm, corporation, person, unit of government, or group of individuals has in the land of another. "Existing grade" means the existing grade or elevation of the ground surface which exists or existed prior to manmade alterations such as grading, grubbing, filling or excavating. DRAFZ FLOOR AMENDMIIV'I B PAGE 6 of 19 • . - "Factory Built Housing" means any structure or portion thereof which is: designed for use as a building or dwelling; prefabricated or assembled at a place other than the building site; and capable of complying with the standards and requirements contained in Section 12-4.4 of Chapter 12, Building Code. . "Family" means an individual or group of two (2) or more persons related by blood, adoption or marriage living together in a single housekeeping unit as a dwelling unit. For purposes of this Chapter, family shall also include a group of not more than five (5) individuals unrelated by blood, adoption or marriage. "Family Care Home" means any care home occupied by not more than five (5) care home residents. These facilities are licensed by the Department of Health, State of Hawaii, under the provisions of sections 17-883-74 to 17-883-91. "Family Child Care Home" means providing child care services and other similar uses consistent with this definition where six or fewer children under the age of 18 are cared for in a private dwelling unit without overnight accommodations at any location other than the children's normal place of residence and which complies with State of Hawaii licensing requirements. "Farm" means an operation or enterprise in operation for at least one year, the core function of which is the commercial cultivation of crops, including but not limited to crops for bioenergy, flowers, vegetables, foliage, fruits, forage, and timber or the raising of livestock, including but not limited to poultry, bees, fish, or other animal or aquatic life that are propagated for commercial purposes as evidenced by the annual filing of a Schedule F form with federal income tax filings by the owner or lessee. "Farm worker" is a farm owner, employee or intern who works no less than [nineteen (19)] fourteen 14) hours per week in farm-related operations on a farm. , ["Farm worker housing" means housing over and above the residential density allowed in the Agriculture District, as established in Section 8-7.5, which meets the following criteria: a) Is accessory to a farm that has generated at least $35,000 of gross sales of agricultural product(s) per year, for the preceding (2) two consecutive years, for each farm worker housing unit on the lot, as shown by State general excise tax forms and Federal Schedule F forms. b) The owner or lessee of the respective lot on 'which the farm worker housing is being proposed shall provide a farm plan to the DRAF'I FLOOR AMENDMIIVZ B PAGE 7 of 19 • • Planning Department that demonstrates the feasibility of the respective farm's commercial agricultural production. c) Is used exclusively for the housing of farm workers and their immediate family. d) For a family - the living space does not exceed 1200 square feetin area e) For a single person - the unit does not exceed 650 square feetin area f) If the farm ceases operation or fails to meet the definition of a farm, the owner shall remove all farm worker housing from the subject parcel within four (4) months of the triggering event (the cessation of a farm or failure to meet the definition). If the farm worker housing is attached to a primary dwelling unit that is part of the density allowed on the subject property, only the additional kitchen shall be removed, and not the additional structure itself. At the time the owner is allowed another kitchen to create a farm worker housing un.it, the owner shall sign a unilateral agreement giving the Planning Department the right to make two (2) unannounced inspections per year by the Planning Department for the purpose of ascertaining compliance in the case where the farm worker housing must be removed. Said agreement shall be recorded in the Bureau of Conveyances or the Land Court, as the case may be. Nothing in the agreement shall prevent the Planning Department from making as many properly executed announced inspections as may be necessary for the enforcement of other planning laws. g) Said housing shall be located on the subject parcel where the farming is occurring and the owner shall not, subsequent to , obtaining the required zoning permits for the farm worker housing, subdivide said housing from the farm nor form any condominium property regime around said housing. h) Said housing may be portable and or temporary, but in all cases shall meet all health, safety and Occupational Safety and Health Administration (O.S.H.A.) requirements. i) A property shall be eligible for farm worker housing only when all of the subject property's respective maximum permitted residential densities, as established in Section 8-7.5, have been permitted and constructed. j) The owner of farm worker housing shall annually certify to the Director of Planning that the Farm Worker Housing meets the conditions of subsection a through i above and shall give written consent to the Planning Department for an annual announced inspection by the department k) Prior to the issuance of the building permit, the applicant shall demonstrate to the satisfaction of the Planning Director that the DRAFZ FLOOR AMINDMEN'I B PAGE 8 of 19 . • • applicant has recorded in the Bureau of Conveyances or the Land Court, as the case may be, the above conditions, explicitly stating that the use permit does not run with the land but is personal to the specif'ic applicant, and that any subsequent owner must secure a separate use permit for farm worker housing.] "Farm worker housing" means housing that is accessorv to a farm, over and above the residential density allowed in the Agriculture District, as established in Section 8-7.5 for which a Use Permit is obtained pursuant to Section 8-7.9. "Finished grade" means the final elevation of the ground surface after manmade alterations such as grading, grubbing, filling or excavating have been made on the ground surface. . "Flag Lots" means a lot or parcel bounded by at least six (6) sides and describing two (2) distinct but contiguous areas, one (1) of which is the primary development area used to determine lot area, width and proportion, and the other of which is an appendage normally used as access from a street to the primary development area. The primary development area is referred to as the "flag" portion of the lot, and the appendage is referred to as the "pole" portion of the lot. "Flammable Liquid" means any liquid having a flash point below two hundred degrees Fahrenheit (200 degrees F.) and having a vapor pressure not exceeding forty (40) pounds per square inch (absalute) at one hundred degrees Fahrenheit (100 degrees F.). "Flood Fringe Area" means the portion of the flood plain outside the floodway, designated as AE, AO, and AH Zones on the FIRM. "Flood Insurance Rate Map" means the official map on which the Federal Insurance Administration has delineated the areas of special flood hazards, the risk premium zones applicable, base flood elevations, and floodways. "Flood Insurance Study" means the official report provided by the Federal Insurance Administration that includes flood profiles, the FIRM, and the water surface elevation of the base flood. "Floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one (1) foot. DRAF'Z FLOOR AMENDMEN'I B • ~ PAGE 9 of 19 "Forestry" means the growing or harvesting of trees for timber or wood f'ibre purposes. "Frontage" means that portion of a parcel of property which abuts on a road, street, or highway. "Front, Building" means the side of a building or structure nearest the street on which the building fronts, or the side intended for access from public area. In cases where this definition is not applicable, the Planning Director shall make the determination. "Garage" means a building or structure or a portion thereof in which a motor vehicle is stored, housed, kept, repaired or serviced. "Garage, Automobile Repair" means a garage wherein major repairs are made to motor vehicles or in which any major repairs are made to motor vehicles other than those normally used by the occupants of the parcel on which the garage is located. "Garage, Automobile Storage" means any garage used exclusively for the storage of vehicles. "General Flood Plain Area" means the area consisting of the approximate flood plain area as delineated on the flood maps, where detailed engineering studies have not been conducted by the Federal Insurance Administration to delineate the flood fringe and floodway and identified as A, X, and D Zones on the FIRM. "Grade" with reference to a street or land surface, means the gradient, the rate of incline or decline expressed as a percent. "Grazing" means the production or use of vegetative land cover for the pasturing of animals. "Ground Level" means with reference to a building, the average elevation of the finished ground levels adjoining the walls of a building. "Guest House" means a building used for dwelling purposes by guests with a floor area of no more than five hundred (500) square feet that contains no kitchen and is located on a parcel of at least nine thousand (9,000) square feet that contains one (1) or more dwelling units. "Height-Building". See appropriate Chapter provisions. llxAr 1 rtcxOx AMEvvMz B PAGE 10 of 19 ~ • "Height, Fence or Screen" means the vertical distance measured from the ground level to the top of the fence. For the purpose of applying height regulations, the average height of the fence along any unbroken run may be used provided the height at any point is not more than ten percent (10%) greater than that normally permitted. "Height, Wall" means the vertical distance to the wall plate measured from the ground level at the bottom of the wall. "Historic Resource" means any property, area, place, district, building, structure, site, neighborhood, scenic viewplane or other object having special historical, cultural, architectural or aesthetic value to the County of Kauai. "Home Business" means any use customarily conducted entirely within a dwelling and carried on solely by the inhabitants thereof, in connection with which there are: no display from the outside of the building; no mechanical equipment used except as is normally used for domestic or household purposes; and no selling of any commodity on the premises; which use is clearly incidental and secondary to the use of the dwelling for dwelling purposes and does not change the character thereof. The office, studio, or occupational room of an architect, artist, engineer, lawyer or other similar professional person; a family child care home; business conducted entirely by phone or by mail (not involving frequent bulk shipments); and an office for "homework" of a person in business elsewhere; all shall be permitted as home businesses except that no activity involving, encouraging, or depending upon frequent visits by the public and no shop or clinic of any type shall be deemed to be a home business. "Horizontal Property Regime" means the forms of development defined in the Horizontal Property Act, Chapter 514A, H.R.S. "Hospital" means any building or portion thereof to which persons may be admitted for overnight stay or longer and which is used for diagnosis, care or treatment of human illness or inf'irmity or which provides care during and after pregnancy. "Hotel" means any building containing six (6) or more rooms intended or designed to be used, or which are used, rented or hired out to be occupied . for sleeping purposes by guests when the rooms are open to the occupancy by the general public on a commercial basis whether the establishment is called a hotel, resort hotel, inn, lodge or otherwise which rooms do not constitute dwelling units. DRAFZ FLOOR AMENDMIIN'I B 0 • PAGE 11 of 19 "HPR Commission" means the Historic Preservation Review Commission. "Indoor Amusement, Commercial" means buildings and structures designed to be used by members of the public that contain amusement facilities such as movie theaters, bowling alleys, pool halls and skating rinks. "Industry" means the manufacture, fabrication, processing, reduction or destruction of any article, substance or commodity, or any other treatment thereof in a manner so as to change the form, character or appearance thereof, and storage other than that accessory to a nonmanufacturing use on the same parcel including storage elevators, truck storage yards, warehouses, wholesale storage and other similar types of enterprises. "Intensive Agriculture" means the growing and harvesting of plant crops for human consumption or animal feeds primarily for sale to others and involving the long-range commitment to one crop such as sugar, pineapple, sorghum, or grain. "Junk" means any worn-out, cast-off, or discarded article or material which is ready for destruction or has been collected or 'stored for salvage or conversion to some use; any article or material which, unaltered or unchanged and without further reconditioning can be used for its original purpose as readily as when new shall not be considered junk. "Junk Yard" means any open space in excess of two hundred (200) square feet, used for the breaking up, dismantling, sorting, storage or distribution of any scrap, waste material or junk. "Kitchen" means any room used or intended or designed to be used for cooking and preparing food. "Land Coverage" means a man-made structure, improvement or covering that prevents normal precipitation from directly reaching the surface of the land underlying the structure, improvement or covering. Structures, improvements and covering include roofs, surfaces that are paved with asphalt, stone, or the like such as roads, streets, sidewalks, driveways, parking lots, tennis courts, patios, and lands so used that the soil will be compacted so as to prevent substantial infiltration, such as parking of cars and heavy and repeated pedestrian traffic. "Landscaping" means the modif'ication of the landscape for an aesthetic or functional purpose. It includes the preservation of existing vegetation and the continued maintenance thereof together with grading and installation of minor structures and appurtenances. llKAN'1 rLCUUx AMr:Nllrir:Nl B PAGE 12 of 19 ~ i . "Land Use" and "Use of Land" includes "building use" and "use of building". "Livestock" means doniestic animals of types customarily raised or kept on farms for profit or other productive purposes. "Loft" means the floor placed between the roof and the floor of the uppermost story within a single family detached dwelling, the floor area of which is not more than one-third (1/3) the floor area of the story or room in which it is placed. . "Lot" means a portion of land shown as a unit on an approved and recorded Subdivision Map. "Lot Area" means the total of the area, measured in a horizontal plane, within the lot boundary lines. "Lot Coverage". See "Land Coverage". "Lot Length" means the horizontal distance between the front and rear lot lines measured in the mean direction of the side lot lines. "Lot Width" means the average horizontal distance between the side lot lines measured at right angles to the line followed in measuring the lot depth. "Manager" means the Manager and Chief Engineer of the Water Department of the County of Kauai. "Mineral Extraction" means any excavation or removal of natural materials not related to or not occasioned by an impending development of the site of the excavation. "Motel" means a group of attached or detached buildings containing rooms, designed for or used temporarily by automobile tourists or transients, with garages attached or parking space conveniently located to each unit, including auto court, tourist court or motor lodge, or otherwise, which rooms do not constitute dwelling units. "Non-conforming Building and Structure" means a building or portion thereof lawfully existing at the time of the adoption of this Zoning Ordinance or as a result of any subsequent amendment and which does not comply with the regulations of the zoning district in which it is located. _ DRAF'I FLOOR AMIIVDMM B • • PAGE 13 of 19 "Non-conforming Use" means a lawful use of a building or land existing at the time of the adoption of this Ordinance 'or as a result of any subsequent amendment, and which does not comply with the regulations for the zoning district in which it is located. "Nursery" means the growing, collecting or storing of plants for the purpose of selling to others for transplanting. "Nursing Home" means a facility established for profit or nonprofit, which provides nursing care and related medical services on a twenty-four (24) hour per day basis to two (2) or more individuals because of illness, disease, or physical or mental infirmity. It provides care for those persons not in need of hospital care. "Open Space" means the portion or portions of a parcel unoccupied or unobstructed by buildings, paving or structures from the ground upward. "Orchards" means the establishment, care and harvesting of over twenty-five (25) fruit bearing trees such as persimmon, guava, banana or papaya for the purpose of selling the fruit to others. . "Organized Recreation Camps" means land or premises containing structures designed to be used for organized camping. The structures include bunk houses, tent platforms, mess halls and cooking facilities, and playfields. Examples include Boy Scout Camps and summer camps. "Outdoor-Amusement, Commercial" means land or premises designed to be used by members of the public, for a fee, that contain outdoor amusement facilities such as miniature golf courses, merry-go-rounds, car race tracks, and outdoor motion picture theaters. "Outdoor Recreation" means uses and facilities pertaining primarily to recreation activities that are carried on primarily outside of structures. "Outdoor Recreation Concession" means uses and facilities ancillary to outdoor recreation uses, such as gasoline pumps at piers and marinas, and boat rental and food and beverage facilities at public beaches. "Owner" means the holders of at least seventy-five percent (75%) of the equitable and legal title of a lot. "Parcel" means an area of contiguous land owned by a person. DRAF'I FLOOR AMENDMIIVi • . PAGE 14 of 19 "Parking Area, Public" means an open area, other than street or alley, used for the parking of automobiles and available for public use whether free, for compensation, or as an accommodation for clients or customers. "Parking Space, Automobile" means an area other than a street or alley reserved for the parking of one (1) automobile. The space shall be ' afforded adequate ingress and egress. "Pet Keeping" means the feeding or sheltering of more than two (2) animals or four (4) birds as a service to others. "Pet Raising" means the breeding, feeding or sheltering of more than two (2) animals not normally used for human consumption for the purpose of sale to others. "Piggery" means any parcel where ten (10) or more weaned hogs are maintained. "Planning Commission" means the Planning Commission of the County of Kauai. "Planning Director" means the Director of the Planning Department of the County of Kauai. "Poultry Raising" means the breeding, feeding, sheltering or gathering of more than four (4) game or domestic fowl for the purpose of sale, food or egg production, or pets. "Private Recreation Areas" means lands or premises designed to be used exclusively by owners and renters of dwelling units, that contain such facilities as tennis courts, playfields, swimming pools, clubhouses, bathing beaches, and piers. "Project; Project Instrument". "Project" means property that is subject to project instruments, including but not limited to condominiums and cooperative housing corporations. "Project instrument" means one or more documents, including any amendments to the documents, by whatever name denominated, containing restrictions or covenants regulating the use or occupancy of a project. "Property Line" means any property line bounding a lot as defined in this Section. DRAFZ FLOOR AMENDMEN'I B • • PAGE 15 of 19 "Property Line, Front" means the line separating the lot from the street or other public areas. In case a lot abuts on more than one (1) street, the lot owner may elect any street lot line as the front line provided that the choice, in the discretion of the Planning Director, will not be injurious to adjacent properties and will comply with any other reasonable determination of the Planning Director. Where a lot does not abut on a street or where access is by means of an access way, the lot line nearest to and most nearly parallel to the street line is the front lot line. In cases where this definition is not applicable, the Planning Director shall designate the front lot line. "Property Line, Rear" means that line of a lot which is opposite and most distant from the front line of the lot. In cases where this definition is not applicable the Planning Director shall designate the rear lot line. "Property Line, Side" means any lot boundary not a front or rear lot line. "Public Facility" means a facility owned or controlled by a governmental agency. "Public Utility" has the meaning defined in Section 269-1, H.R.S. "Rear, Building" means the side of the building or structure opposite the front. In cases where this definition is not applicable, the Planning Director shall make the determination. "Recreation Vehicle Park" means a parcel of land under one (1) ownership which has been planned and improved and which is let or rented or used for the temporary placement of camp trailers and camping vehicles which are utilized for non-permanent residential use. "Recreational Trailer" means a portable structure, used or designed for human habitation or occupancy and built on a chassis with wheels, which is capable of being licensed as a motor vehicle, a vehicle or a trailer pursuant to Hawaii Revised Statutes Chapter 249 and transported on a highway, but which is unable, due to its size, design, construction or other attributes, to comply with the minimum standards and requirements applicable to dwellings or buildings, or portions thereof, contained in Section 12-4.4 of Chapter 12, Building Code. "Religious Facilities" means buildings, other structures, and land designed to be used for purposes of worship. . llxAr 1 rLCxUx Ar11-vllrir.:Nl B PAGE 16 of 19 • • - "Repair" (as applied to Structures) means the renewal or treatment of any part of an existing structure for the purpose of its maintenance. The word "repairs" shall not apply to any change of construction such as alterations of floors, roofs, walls or the supporting structure of a building or the rearrangement of any of its component parts. "Residential Care Home" means any care home facility occupied by more than five (5) care home residents. "Resource Management" means uses and facilities pertaining to forest products, minerals and other natural resources. "Retail Stores or Shops" means an establishment primarily engaged in selling goods, wares or merchandise directly to the ultimate consumer. "School" means an institution with an organized curriculum offering instruction to children in the grade range kindergarten through twelve (12), or any portion thereof. "Setback Line" means a line parallel to any property line and at a distance from there equal to the required minimum dimension from that property line, and extending the full length of the property line. "Slope" means a natural or artif'icial incline, as a hillside or terrace. Slope is usually expressed as a ratio or percent. . "Specialized Agriculture" means the growing, collection or storing of any plant for ornamental or non-food use such as flowers and pot plants. "Stock Raising" means the breeding, feeding, grazing, herding or sheltering of more than one (1) animal such as cattle, sheep, pigs, goats, and horses, for any purpose. "Story" means the space in a building between the upper surface of any floor and the upper surface of the floor next above, and if there be no floor above, then the space between the upper surface of the topmost floor and the ceiling or roof above. No story shall be more than twelve (12) feet high measured from the floor level to the wall plate line. "Street Center Line" means the center line of a street as established by official surveys or a recorded subdivision map. If not so established, the center line is midway between the right-of-way lines bounding the street. DRAFZ FLOOR AMENDMIIV'I B PAGEF17 of 19 "Street or Highway" means a way or place of whatever nature, open to the public for purposes of vehicular travel. "Street Right-of-Way Line" means the boundary line right-of-way or easement and abutting property. "Structural Alteration" means any change in thesupporting members of a building, such as in a bearing wall, column, beam or girder, floor or ceiling joist, roof rafters, roof diaphragms, foundations, piles or retaining walls or similar components or changes in roof or exterior lines. "Structure" means anything constructed or erected which requires location on the ground or which is attached to something having location on the ground, excluding vehicles designed and used only for the transportation of people or goods, and excluding utility poles and towers constructed by a public utility. "Subdivider" means a person commencing proceedings to effect a division of land for himself or for another. "Subdivision" means the division of land or the consolidation and resubdivision into two (2) or more lots or parcels for the purpose of transfer, sale, lease, or building development, and when appropriate to the context shall relate to the process of dividing land for any purpose. The term also includes a building or group of buildings, other than. hotel, containing or divided into two (2) or more dwelling units or lodging units. "Thoroughfare" means a highway or street. "Time Share Plan" means any plan or program in which the use, occupancy, or possession of one or more time share units circulates among various persons for less than a sixty (60) day period in any year, for any occupant. The term "time share plan" shall include both time share ownership plans and time share use plans, as follows: (A) "Time share ownership plan" means any arrangement whether by tenancy in common, sale, deed, or other means whereby the purchaser receives an ownersliip interest and the right to use the property for a specific or discernible period by temporal division. (B) "Time share use plan" means any arrangement, excluding normal hotel operations, whether by membership agreement, lease, rental agreement, license, use agreement, security or other means, whereby the purchaser receives a right to use accommodations or facilities, or both, in a DRAFZ FLOOR AMENDMM B , PAGE 18 of 19 ~ . time share unit for a specif"ic or discernible period by temporal division, but does not receive an owner- ship interest. "Time Share Unit" means the actual and promised accommodations, and related facilities, which are the subject of a time share plan. "Trailer Home" means factory built housing which is capable of being licensed as a vehicle or trailer pursuant to Hawau Revised Statutes Chapter 249 and transported upon a highway. "Transient Vacation Rentals" means rentals in a multi-unit building for visitors over the course of one (1) or more years, with the duration of occupancy less than thirty (30) days for the transient occupant. "Undeveloped Campground" means land or premises designed to be used for temporary occupancy by campers traveling by foot or horse which may contain facilities and fireplaces, but do not contain facilities as are provided at developed campgrounds. "Use" means the purpose for which land or building is arranged, designed or intended, or for which either land or building is or may be occupied or maintained. "Used" includes "designed, intended or arranged to be used". "Use, Existing" means a lawful use of land existing on August 17, 1972. . "Use Permit" means a permit issued under the definite procedure provided in this Chapter allowing a certain use which is conditionally permitted for the particular district. "Utility Facility" means a use or structure used directly in distribution or transmission of utility services. "Utility Line" means the conduit, wire or pipe employed to conduct water, gas, electricity or other commodity from the source tank or facility for reduction of pressure or voltage or any other installation, employed to facilitate distribution. "Wall" means any structure or device forming a physical barrier, which is so constructed that fifty percent (50%) or more of the vertical surface is closed and prevents or tends to prevent the passage of light, air and vision through the surface in a horizontal plane. (This includes structures of DRAFI FLOOR AMENDMEN'I B PAGE 19 of 19 r concrete, concrete block, wood or other materials that are solids and are so assembled as to form a solid barrier, provided carport posts, columns and other similar structures not constructed of fifty percent (50%) or more of the vertical surface shall be deemed walls.)" (Material to be deleted is bracketed. New material is underscored.) D$AF"I FL OOR AMENDMENI C PAGE 1 of 2 (July 15, 2009) ~ FLOOR AMENDMENT Bill No. 2318, Draft l, Relating to Farm Worker Housing INTRODUCED BY: Daryl W. Kaneshiro Amend Bill No. 2318, as amended, by amending Section 8-7.9 to read as follows: Sec. 8-7.9 Farm Worker Housing Use Permit. (a) No use permit for farm worker housing shall be granted unless the farm has generated at least twelve thousand dollars ($12,000.00) of gross sales of agricultural product(s) per year, for the preceding (2) two consecutive years for each farm worker housing unit on the lot, as shown by State general excise tax forms and Federal Schedule F forms and at least two of the following conditions are met: (1) The owner or lessee of the respective lot on which the farm worker housing is being proposed has provided a farm plan to the Planning Department that demonstrates the feasibility of the respective farm's commercial agricultural production. (2) The farm is entitled to Agricultural Rates provided by the Department of Water. (3) 75% of the lot on which the farm worker housing is being proposed is in cultivation or crop rotation and the owner has dedicated the land to agricultural use pursuant to Section 5A-9.1 of the Kaua`i County Code. If more than one farm worker housing unit is constructed on the lot, the farm worker housing shall be clustered in one area. The applicant shall submit a plot . plan delineating the location of each farm worker housing unit. The Planning Commission may determine the location of each farm worker housing unit. (b) In addition to the Use Permit requirements, the farm worker housing shall: (1) Be used exclusively for the housing of farm workers and their immediate family; (2) For a farm worker and the worker's family, shall not exceed 1200 square feet of floor area; (3) For a single farm worker, shall not exceed 650 square feet in floor area; (4) Be removed within four (4) months after the farm ceases operation or fails to meet the definition of a farm. If the farm worker housing is attached to a primary dwelling unit that is part of the density allowed on the subject property, only the additional kitchen shall be removed, and not the additional structure itself. At the time the owner is allowed another kitchen to create a farm worker housing unit, the owner shall sign a unilateral agreement giving the Planning Department the right to make two (2) unannounced inspections per year by the Planning DRAFZ FLOOR AMENDMEn]'I 6 PAGE 2 of 2 nD {h 7' Department for the purpose of ascertaining compliance in the case where the farm worker housing must be removed. Said agreement shall be recorded in the Bureau of Conveyances or the Land Court, as the case may be. Nothing in the agreement shall prevent the Planning Department from making as many inspections as may be necessary for the enforcement of other planning laws; (5) Be located on the subject parcel where the farming is occurring; (6) Meet all health, safety and Occupational Safety and Health Administration (O.S.H.A.) requirements; and (c) A lot shall be eligible for farm worker housing only when all of the lot's respective maximum permitted residential densities, as established in Section 8-7.5, have been permitted and constructed. The owner mav applv for a use permit to designate a le ally permitted existing structure as farm worker housing and if such permit is approved the structure shall not be considered when calculating the ,allowable densitv for the lot upon which the structure is located. (d) Prior to the issuance of the building permit, the applicant shall demonstrate to the satisfaction of the Planning Director that the applicant has recorded in the Bureau of Conveyances or the Land Court, as the case may be, the requirements and conditions set forth in Sections 8-7.9 (a) and (b) respectively, explicitly stating that the use permit does not run with the land but is personal to the specific applicant, and that any subsequent owner must secure a separate use permit for farm worker housing. (e) The land upon which the farm worker housing is located shall not be subdivided to create separate lots for the farm worker housing and the farm. If a use permit for farm worker housing on the lot is approved, the lot shall not thereafter be submitted to a condominium property regime unless the use permit is rescinded and the farm worker housing is removed. (f) The owner of farm worker housing shall annually certify to the Director of Planning that the Farm Worker Housing meets requirements and conditions set forth in Sections 8-7.9 (a) and (b) above and shall give written consent to the Planning Department for an annual announced inspection by the department. (Material to be deleted is bracketed. New material is underscored.) DRAFI FLOOR AMENDMM D ' • • PAGE 1 of 5 ~ ~ A ~ (J ulY 15, 2009) u~? ~ FLOOR AMENDMENT Bill No. 2318, Draft 1, Relating to Farm Worker Housing INTRODUCED BY: Lani Kawahara Amend Bill No. 2318 to read as follows: SECTION 1. Section 8-1.5, Kaua`i County Code 1987, is hereby ,amended by adding the following definitions to be appropriately inserted and to read as follows: ["Farm" means an operation or enterprise in operation for at least one year, the core function of which is the commercial cultivation of crops, including but not limited to crops for bioenergy, flowers, vegetables, foliage, fruits, forage, and timber or the raising of livestock, including but not limited to poultry, bees, fish, or other animal or aquatic life that are propagated for commercial purposes as evidenced by the annual filing of a Schedule F form with federal income tax filings by the owner or lessee. "Farm worker" is an employee or intern who works no less than nineteen (19) hours per week in farm-related operations on a farm. "Farm worker housing" means housing over and above the residential density allowed in the Agriculture District, as established in Section 8-7.5, which meets the following criteria: a) Is accessory to a farm that has generated at least $35,000 of gross .sales of agricultural product(s) per year, for the preceding (2) two consecutive years, for each farm worker housing unit on the lot, as shown by State general excise tax forms and Federal Schedule F forms. b) The owner or lessee of the respective lot on which the farm worker housing is being proposed shall provide a farm plan to the Planning Department that demonstrates the feasibility of the respective farm's commercial agricultural production. c) Is used exclusively for the housing of farm workers and their immediate family. d) For a family - the living space does not exceed 1200 square feet in area e) For a single person - the unit does not exceed 650 square feet in area DRAFZ FLOOR AMENDMM D • • PAGE 2 of 5 ~ If the farm ceases operation or fails to meet the definition of a farm, -the owner shall remove all farm worker housing from the subject parcel within four (4) months of the triggering event (the cessation of a farm or failure to meet the definition). If the farm worker housing is attached to a primary dwelling unit that is part of the density allowed on the subject property, only the additional kitchen shall be removed, and not the additional structure itsel£ At the time the owner is allowed another kitchen to create a farm worker housing unit, the owner shall sign a unilateral agreement giving the Planning Department the right to make two (2) unannounced inspections per year by the Planning Department for the purpose of ascertaining compliance in the case where the farm worker housing must be removed. Said agreement shall be recorded in the Bureau of Conveyances or the Land Court, as the case may be. Nothing in the agreement shall prevent the Planning Department from making as many properly executed announced inspections as may be necessary for the enforcement of other planning laws. g) Said housing shall be located on the subject parcel where the farming is occurring and the owner shall not, subsequent to obtaining the required zoning permits for the farm worker housing, subdivide said housing from the farm nor form any condominium property regime around said housing. h) Said housing may be portable and or temporary, but in all cases shall meet all health, safety and Occupational Safety and Health Administration (O.S.H.A.) requirements. i) A property shall be eligible for farm worker housing only when all of the subject property's respective maximum permitted residential densities, as established in Section 8-7.5, have been permitted and constructed. j) The owner of farm worker housing shall annually certify to the Director of Planning that the Farm Worker Housing meets the conditions of subsection a through i above and shall give written consent to the Planning Department for an annual announced inspection by the department. k) Prior to the issuance of the building permit, the applicant shall demonstrate to the satisfaction of the Planning Director that the applicant has recorded in the Bureau of Conveyances or the Land Court, as the case may be, the above conditions, explicitly stating that the use permit does not run with the land but is personal to the speci.f'ic applicant, and that any subsequent owner must secure a separate use permit for farm worker housing.] "Farm" for the purposes of this ordinance means an operation or enterprise in operation for at least one vear, the core function of which, is the commercial cultivation of crops including but not limited to vegetables, foliage, fruits, forage, and timber or the raising of livestock including but not limited to poultrv, bees, fish or other animal or aquatic life that are propagated for commercial purposes as DRAFZ FLOOR AMIIVDMIIN2 D • • PAGE 3 of 5 evidenced bv: a. the annual filing of a Schedule F form with federal income tax filings bv the owner or lessee; b. a farm plan apnroved bv the applicable Soil and Water Conservation Committee or for which agricultural dedication has been approved bv the Countv Real Property Tax Division; and c. gross sales of agricultural products from said farm of at least $10,000 in the prior year; or d) more than 75% of the subject parcel is used for farming purposes. The 75% shall include portions that are unusable as defined bv the Countv Real Property Tax Division. The 75% shall not include anv house site even though it mav be housing a person or persons who are working on the subiect farm. "Farm worker" is a farm owner, emplovee, contract worker or intern who works no less then 14 hours lper week in farm-related operations on the subject farm. "Farm worker housing" means housing over and above the residential density allowed in the Agriculture District as established in Section 8-7.5, which meets the following criteria: a. Is used exclusivelv for housing for farm workers and their immediate familv. b. For a family the living space does not exceed 1200 square feet in area. c. For a single person, the unit does not exceed 650 square feet in area. d. No rent shall be charged for such housing, and the owner or lessee shall file an affidavit with the PlanninDepartment that no rent is bein charged and that the resident of said housing is a farm worker as defined herein or a member of the resident farm worker's immediate familv. e. If the farm ceases operation or fails to meet the definition of a farm, the owner shall remove all farm worker housing from the subject parcel within six (6) months of the final determination that the operations on subject parcel(s no long,er meets the definition of a farm as provided herein. (1) If the farm worker housing is attached to a primary dwelling unit that is part of the densitv allowed on the subject nropertv, the additional kitchen onlv shall be removed, not the additional structure itsel£ At the time the owner is allowed another kitchen to create a farm worker housing unit, the owner shall si n a unilateral agreement iving the Planning Department the right to make two unannounced inspections per year bv the Planning Department for the purpose of ascertaining compliance in the case where the farm worker housing must be removed. Said agreement shall be recorded in the Bureau of Convevances or the DRAFZ FI.OOR AMENDMIIV7 D 0 • PAGE 4 of 5 ' Land Court as the case mav be. Nothing in the agreement shall prevent the Planning Department from making as manv properlv executed announced inspections as mav be necessarv for the enforcement of other planning laws. e Said housing shall be located on the subiect farm and the owner shall not, subsequent to obtaining the required zoning permits for the farm worker housing, subdivide said housing from the farm nor form anv condominium propertv regime around with said housing. f Said housing mav be portable and or temporarv but in all cases shall meet all health safety and Occupational Safetv and Health Administration (O.H.S.A.) requirements, and g A propertv shall be eligible for farm worker housing onlv when all of the subject propertv's respective maximum permitted residential densities, as established in Section 8-7.5 have been permitted and constructed. h The owner of farm worker housing shall annuallvi certifv to the Director of Planning that the Farm Worker Housing~meets the conditions of subsection a through g above and shall give written consent to the Planning Department for an annual announced inspection bv the department i Prior to the issuance of a building permit for farm worker housing, the applicant shall demonstrate to the satisfaction of the Planning Director that the applicant has recorded in the Bureau of Convevances or the Land Court, as the case mav be the above conditions explicitlv stating that the use permit does not run with the land but is personal to the specific applicant and that anv subsequent owner must secure a separate use permit for farm worker housing. SECTION 2. Section 8-1.4(f) of the Kauai County Code, as amended, is hereby amended to read as follows: Section 8-1.4(f ) Nothing in this Chapter shall prohibit the use of factory built housing or trailer homes as permitted dwellings, buildings or structures for the purpose of human habitation or occupancy within the various Use Districts provided that all such factory built housing and trailer homes must first: (1) Meet all applicable development standards, density limitation and other such requirements for the particular Use District; (2) Be permanently affixed to the ground; (3) Have had their wheels and axles, if any removed; except in the case of farm worker housing as defined in Section 8-1.5, Kaua'i Countv Code 1987, as amended. (4) If licensed pursuant to the Hawaii Revised Statutes Chapter 249, have been registered as a stored vehicle in accordance with Hawaii Revised Statues Section 249-5; (5) Meet the standards and requirements contained in Section 12 4.4 of Chapter 12, Building Code; and (6) Meet all other applicable governmental rules, regulations, ordinances, statutes and laws. Draft Floor Amendment ~ PAGE 5 of 5 SECTION 3. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are ~ severable. (Material to be deleted is bracketed. New material is underscored.)