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Home My WebLink About11-29-2010-Doc15945~ • MINUTES PLANNING COMMITTEE WORKSHOP November 29, 2010 A workshop of the Planning Committee of the Council of the County of Kauai, State of Hawaii, was called to order by Councilmember Jay Furfaro, Chair, at the Council Chambers, 3371-A Wilcox Road, Lihu`e, Kauai, on Wednesday, November 29, 2010, at 9:48 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Derek S. K. Kawakami Honorable Dickie Chang, Ex-Officio Member EXCUSED: Honorable Bill "Kaipo" Asing Honorable Lani T. Kawahara JAY FURFARO (Committee Chair): Aloha good morning thank you everyone for coming to this workshop on our shoreline setback activity. For those that did not hear me earlier, this is a workshop and we do have a quorum and I would again ask that we go through some presenters in a format before we actually take testimony from others today. The goal here is to perhaps review the amendments as submitted by the Planning Department, but we will not get to a point that we would introduce any amendments today. The fact of the matter is as I went through the new structure of the council I would like any dialog on amendments to be directed to Councilwoman Elect Nadine Nakamura through the -council office. Through the council office and I want to make that very clear. This item we have our inaugural meeting on December 1 and this item will return to the committee on December 8~ so please note I would like any suggestions to be in writing and please feel free to submit it to our county clerk. On that note earlier today or this morning, I introduced those visitors we have from Honolulu and fact I asked Dr. Chip. Fletcher to first give us an overview on the maps that have been submitted to the Planning Department. I suggested to the Planning Department that they eventually make a presentation on those maps to the entire council-elect and from that standpoint we will go to the Planning Department's presentation from Deputy Director, Mr. Imai Aiu. so on that note, Dr. Fletcher welcome again and please give us a summary of what you have here and... Dr. CHIP FLETCHER: Thank you. I'm happy to be here. Mr. Furfaro: As long as you're happy. Dr. Fletcher: Any place works for me as long as you guys are happy with it. I'm a Professor and Associate Dean for Academic Affairs at the University of Hawaii in the Department of Geology and Geophysics and the School of Ocean and Earth Science and Technology. I have a small group of researchers and graduate students and undergraduate who do research for various agencies and we had a contract with the County of Kauai to produce a database for you on the long term rate of shoreline change on your island of Kauai. We. turned in our final report to you several months ago, I believe it was last winter, in the form of a Kauai • • shoreline change atlas. This atlas is in three ring binder form so that materials can be taken out of it easily and you don't have to cart the whole thing around. It's organized into four regions, we have West Kauai, East Kauai, South Kauai, and North Kauai, and each region is mapped as one of forty maps which provide data on the long term rate of shoreline change every sixty-five feet along your shoreline for every beach other than the Na Pali Coast. Here's an example of one of the maps that we produced, they are based on aerial photographs on which we have plotted a histogram out in the water. The red bars on the histogram indicate erosion, and blue bars on the histogram indicate accretion or shoreline that is moving seaward. This is meant to be purely a visual aid and each histogram represents shoreline change as I said every sixty-five feet and we have a data table for each histogram, each we call them a transact every sixty-five feet gives the long term rate of change. This information is used by the planning department to assess the erosion hazard around the Island. We determine the rate of shoreline change by using aerial photographs that go back to the World War II era and a set of maps that go to the period before World .War II. We have anywhere from six to twelve air photographs and maps mapping the position of the shoreline over that period roughly from 1910 or 1920 up to present day. The air photographs have been carefully corrected for any photo distortion, this is a process called ortho rectification. Every photo has some distortion associated with it and we have attempted to remove that from the air photographs so that you have in my belief one of the most precise databases on shoreline change in the nation. The rates of shoreline change every sixty-five feet had been smoothed in the along shore direction so that from one property to the next there is not a great variation in the rate. We smooth them by basically averaging every five transacts and applying that average to the middle transact and then we move over one transact and average and apply it to that middle transact etc... so the data you have has been smoothed along the beach. That's the summary of the database for you and I am happy to come at a future time if you have a workshop and you are interested in the methodology we used here, I would be happy to give a presentation on that and I will take any questions you have right now. Mr. Furfaro: Thank you very much. From the group here are there any questions on the summary that we received from Dr. Fletcher and it will be more detailed in a future council meeting. It does not look like we have any questions right now. We look forward to the presentation in the future from the Planning Department. Dr. Fletcher: Thank you. TIM BYNUM: Chip you're going to hang around right? Dr. Fletcher: I will be here all morning. Mr. Bynum: Okay, great. Mr. Furfaro: On that note let me take a minute to recognize Counclmember=elect Mr. Rapozo Mel thank you very much for being here this morning. On that note I would like to ask the Planning Department for them to make their presentation and I guess we will refer to you, Mr. Aiu. I'm going to take a moment just to move if I can and if the staff can get the lights turned off I would appreciate it. 2 • • IMAI AIU, DEPUTY DIRECTOR OF PLANNING: I am set now can I be heard? LAURIE CHOW, SENIOR CLERK TYPIST: Yes. Mr. Aiu: Awesome. Alright, thank you Chair Furfaro and councilman and councilmen-elect. Just to go over this and thank you for the chance to explain what our proposed amendments and legislation here and our intent with this proposed legislation to amend the shoreline setback ordinance. I will start with the applicability section and the amendment we've done there if you indulge I'm just going to read it out loud as to what we've amended to section A is section 8-27-1A. This article shall be applicable to all lands within the County of Kauai, State of Hawaii, that are abutting the shoreline unless the applicant can demonstrate to the satisfaction of the Planning Commission based on the recommendation by the Planning Director that based on the topography and geologic features of property seaward boundaries or the distance of the proposed improvements to the property seaward boundary that will not adversely affect beach processes or interfere with public access or public views to and along the shoreline. This recommendation must be based on a report written by a qualified professional consultant. The purpose of this amendment is we have had the applicability debate here before council and where it ended up last time was that any property that is basically a shoreline property one, that touches the shoreline, is subject to this law and does require a certified shoreline. We have processed numerous cases that have come through the department and there are numerous parcels out there where certain improvements we feel that the certified shoreline requirements would just be extraneous. We have given some handouts to that effect ,.. ~ - .-and one. of them is the property and you can see that it's on an accreting shoreline. It's roughly 200 feet deep. The proposal on that property was to build a shed behind - the existing house that would automatically trigger a certified shoreline. We felt that given the nature of the improvements that was not commensurate with the nature of the improvements nor did it pose any did that improvements pose any risk to the shoreline properties. The other one we handed out which is still right here and I apologize for this not being out to everybody but thank you is and you'll probably recognize this as the Marriott property, Kauai Lagoons, over Running Waters. Behind the lagoons there, that property is fourteen hundred feet deep from the shoreline measured roughly on our photometry program but that's already one property outside what we've already said is the zone of applicability of this ordinance which is within five hundred feet. Within that one property it gets outside of five hundred feet. In that case if you are building behind those lagoons, we also see no reason why you should have to go through the whole processes of certified shoreline just to build there. One of the points of dispute on in proposing the applicability question previously was that it was just done solely at the discretion of the Planning Director. So in order to address that we've made it now to the discretion of the Planning Commission. So all these applicability calls will be made public. They will not occur solely in the department but occur before the public by the commission so people will have a chance to argue why they see that they should or should riot be applied in that case. With that said,. moving on to what ~. ~~'- -is `the •larger part of this ordinance'is the changes to how we ap~ily`and"incorporate the data that has been provided to us by Dr. Fletcher. I would like to start with just the background of what the current law does. This is first of all this law was intended to be an interim ordinance, this is from the findings and purpose of I believe its ordinance 863. This bill serves as an interim measure until the public data base of science based erosion rates is formally established and the new setback rules and ordinance are adopted by the Planning Commission, County Council and 3 • • Mayor is appropriate. So this is that ordinance. We do, as Dr. Fletcher said and now have those erosion rates and this is the ordinance we are proposing to do exactly what this says here, adopt those erosion rates under the current law the setback is determined primarily by your lot depth and this is section 8-27. Section 3, it's for lots with an average depth of 160 feet or less. The shoreline setback line shall be established based on the average lot depth of the lot as provided in table one or at the option of the applicant upon or close to an erosion study provided in table two. What that basically means is how deep your lot is, we already have set numbers of how much you're going to setback and that's going to determine your setback. For the larger lots your setback is determined by an erosion study, this is what section 8-27.3 says. For lots with an average depth of more than 160 feet, the shoreline setback line shall be established based on a close to erosion study as provided in table two and shall be no less than setback as this is set forth as table one is applicable so table one, your lot size is still your primary determining factor here and you can't go less than that. Let's take a look at that and what that applies to here and give you an example of how we apply the current law. These are the sample lots (I've just kind of made up simple illustrated lots.) To illustrate how the setback laws apply. The assumptions that I'm working with are to the left, these are all shoreline properties and you can see that and consider the bottom property line. Let's turn this on here and I can show this to you. This is the certified shoreline here, ocean on this side as it symbolize as it traditionally symbolize the ocean by pointed little blue lines and by Kelly Slater. They are similar width but vary in depth. I picked an erosion rate of a half foot per year and there are erosion rates that go on half foot per year, that's not unrealistic, but it also does serve to give a good illustration of what happens in each lot and assume that the structure being proposed is less than five thousand square feet, which by the ordinance means we used seventy years as your multiplying factor for the erosion rate. Applying the current law, and we're going to go to table one for the lot that's a hundred feet, very simple forty foot setback for the lot that's a hundred and sixty feet, again very simple seventy foot setback. For the lot that's two hundred and twenty feet... sorry let me just go back, I didn't make that clear. Hundred feet, one hundred sixty feet, two hundred twenty feet, lot widths are seventy feet, and I used that number because it's asemi-realistic number for a lot but it also then serves to illustrate buildable areas after that. Again if you have a hundred foot lot, you'll have a forty foot setback; the hundred sixty foot lot, you're going to have a seventy foot setback; the two hundred foot lot, you're actually going to go down here to table two and use forty feet plus seventy times the annual (inaudible) erosion rate, but also keep in mind it can't be less than this one hundred feet here. So this is what it looks like, most of these and will just start with this. You take your half a foot per year, you multiply by seventy plus your forty foot and you're going to get aseventy-five foot setback if you were to base it on erosion. But remember the table one rules, you're going to determine it by lot size here. So by lot size again you're going to have a forty foot setback for the hundred foot lot, seventy foot setback for the hundred sixty foot lot, and a hundred foot setback for the two hundred twenty foot lot. In either case that seventy-five foot setback would not apply. That would be your erosion rate that line right there, that's what that gets you on the certified shoreline. So all your lots here are going to be based on the lot size rather than the erosion rate, so that's how far you're going to be from the shoreline. Notice that the tiger shark has appeared, so Slater had to paddle in because well who wants to be out there with the tiger shark. So new proposed law, this is what we're going to do instead. We have the erosion rates now and that was the primary reason for this law and so that should be we feel the primary determinant of your setback, that's why we got this data and that's what we said the science based data should be, our best available data. So we 4 • • move table one to the forefront and the setback is determined primarily by the erosion right now so what we said is in section 8-27, the shoreline setback shall be established based on the formula provided in table one. We've made what was table one table two. We've basically just flipped flopped the methods that you use to determine erosion. The setback shall be determined by lot size when the erosion rate precludes a buildable area. The buildable area has already been established in the previous ordinance at twenty-one hundred square feet, so this is the language we're proposing. In cases where the application of table one and other relevant building standards of the comprehensive zoning ordinance result in a buildable footprint that is less than the minimum buildable footprint of the shoreline setback shall be established according to table two. So once again this is just the existing tables that are based on lot size, so let's look at an application. Same lots you're dealing with, one hundred feet, a hundred and sixty feet and two hundred and twenty feet and we're going to look at first and foremost, we determine our setback by the erosion rate. In your lots two and three you're going to go with seventy-five feet and that's what your erosion rate is going to give you. So in the case of the hundred sixty foot lot, it's going to be slightly more than it was by the table. In the case of the two hundred twenty foot lot, it's going to be less by twenty-five feet and you're going to be that much, but again this is all based on what we have said is our primary determinant, the science of this. What happens and notice here this is where we have to make a notice this case is that in the case of the hundred foot lot if you apply that seventy-five foot setback, you're only left with nine hundred square feet of buildable area for that lot assuming a ten foot front yard setback and five foot side yard setbacks that are the other CZO standards. We said twenty-one hundred square feet is what constitutes a minimum buildable area, so in that case what we are saying is we've already via the processes of adopting ordinance 863 and all the work shopping and all the debate on the council floor. We said that when we have a hundred foot deep lot, we are okay with a forty foot setback and the public process has already decided that. So in this case where the lot is rendered practically unusable, we already have a fallback position and that's the forty foot setback. So we should go back to that when it's precluded. We have received some testimony from the Sierra Club that is relevant to that and that actually does make sense here. What happens there and again with the same one hundred foot lot, let's look at it when you do a forty foot setback. Now you have a three thousand square foot buildable area which is more than what the minimum buildable area is. You could actually go to a fifty-five foot setback and still maintain the twenty-one hundred square foot buildable area and be closer to that erosion rate, and once again, if we're going to say that the science is the primary determinant and not the lot size but the science of it, you know it does make sense that we try and get as close to that scientifically-based erosion setback as can while still maintaining a reasonable use of the lot. I mean that's why we have these lot size based setbacks is because we do acknowledge that a reasonable use of the lot should be acknowledged; lot size is not erosion size but it does come into play when we talk about how someone can use their lot and we do have to acknowledge that, that the person has the right to use their lot. In this case you could do that you could say you know what that we need to push the setback as much as we can while still maintaining that buildable area and we can deal with that and that can be incorporated into law. What does happen is I have given you very simple illustrations of the lots, perfectly square lots with easy math and an easy situation to illustrate it. A lot of lots look like this and if we were to go to an erosion-based setback here with seventy- five feet, here's what you get, thirteen eighty-one square feet here, fourteen fifty here, and that ends up being a perfectly buildable lot area by the lot size, but are these triangles really buildable? In this case you can make a pretty sound 5 • • argument that that does not leave you any reasonable use of the lot. If we were to take that testimony into account which I said again you know it does make sense, but keep in mind it might leave you with situations like this that which do have to be evaluated on a case by case basis and in a lot of cases it is bright line guidelines are easy you just go right back to the forty feet. But that I'm going to leave as a question for our policy but to address the Sierra Club testimony and that it does gave some validity and you may want to address that. In that case that is the end of the slide show and the end of my presentation so if there are any... well in that case I will just turn it back over to you Chair Furfaro. Mr. Furfaro: Thank you Imai, and if I can ask you to stay in your location I would appreciate that. From a standpoint of any of our guests that came in from Honolulu today, are there any additional presentations that any of you would like to make before we go into a Q&A session? Please come right up. How are you Mr. Hwang? Okay so let me just explain what I perceive our rules to be today very quickly if I can Mr. Hwang? DENNIS HWANG: Okay. Mr. Furfaro: I wanted to get all the presentations made up front and then typically within our council rules people are allowed three minutes and three minutes to speak, but in today and coming up that we have no more presentations you will be given a elongated time of six minutes to make your comments and then to be fair you will be able to come up a second time for an additional three minutes. Mr. Hwang: Okay. Mr. Furfaro: But does that sound fair enough to you? Mr. Hwang: That sounds fine. Mr. Furfaro: Very good you have the floor sir. Mr. Hwang: Thank you, my name is Dennis Hwang, I am affiliate faculty with the University of Hawaii Sea grant and I was involved in drafting the original bill. A lot of the language in the original bill came from the Hawaii Coastal Hazard mitigation guide book that's where the seventy forty came from. So this is all very good that we are amending this ordinance and I do have a few comments and one thing you may want to consider is if you look at there may be some slight inconsistencies in some of the tables so we should take a look at that. If you look at the table which was originally table one but now it's table two, based on lot depth okay and if you look at the different columns supposedly under this table, if a lot depth is a hundred feet, the setback is forty feet as Mr. Imai pointed out. If the lot depth is a hundred one feet, the setback is fifty feet which gives a person with a larger lot a larger lot of only one foot a ten foot additional setback. This is some of the potential inconsistencies that would be good to address that, and that could be addressed with a formula instead of a table if you want to use a formula. The other thing to consider is the minimum buildable area of twenty-one hundred square feet and I think it's going to be very important that you address this now that you have this new erosion data, especially if there are, for instance, areas with high erosion rates, say greater than one feet per year or two or three feet per year. Right now a lot with a hundred feet, a hundred foot lot depth has a minimum buildable area of twenty-one hundred square feet. It's conceivable that a lot depth, a • lot with a depth of five hundred square, five hundred feet lot depth would also have a twenty-one hundred square foot buildable area. So there is a way to increase from a landowner's point of view and I think you want to try and make this as scientifically based as possible, but at the same time fair and reasonable and defendable free from challenges. One thing to consider is another formula that ties the minimum buildable area to the lot depth and that's something that we don't have enough time to go into detail now but that's certainly possible. What that will do is allow more fair use for a larger lot and the person who has five times more land would have a larger minimum buildable area and at the same time if you don't address that issue you're going to default back to that lot depth table and according to that lot depth table the setback would be only a hundred feet which would be less than the erosion rate. If you use the minimum buildable area tied to a formula, you will benefit the landowner and you will also have a more protective shoreline provision. The last thing that Mr. Imai mentioned is that the odd lot shapes and again that's very important and I think you have a provision in the rules to address that but it would be good to provide some policy or guidelines on how those lot depths are calculated beforehand before the applications come in. The last issue is that this was really important not only for new houses or construction but it's supposed to be for the whole development process from zoning to subdivision. The whole idea is not to create small lots in the first place so those are my comments and suggestions but you're along the way. Mr. Furfaro: Mr. Hwang, if I put a flip chart up there, could you give us an example of a formula? Mr. Hwang: Sure. Mr. Furfaro: Just so that we in our mind will have a concept of how you would relate the minimum size of a structure along with some kind of conceptual formula. Please go right up. Mr. Hwang: Okay. The first issue was about table, table two which was originally table one, and the jump when you go from a lot depth, of say a hundred feet to a hundred one feet the setback jumps from fifty feet to sixty feet so the person has a one foot larger lot and has to setback ten additional feet. So a formula like that can simply be if you're going to use that type of concept, the setback will be forty feet plus the lot depth minus a hundred over two okay. So for a person under the old rule the person who has a hundred foot setback has a hundred forty foot that has a forty foot setback, and the person with a hundred one foot lot depth has a fifty foot setback. So under which would be you would have fifty-one feet supposedly buildable area under this new rule, you would still have forty feet if his lot was a hundred one feet minus a hundred, that's one foot divided by two half so his setback would be forty point five feet and you can extrapolate it out. So the hundred foot lot depth was a hundred feet has a forty foot setback, and with the new formula, then the hundred one foot would have a forty and a half foot setback versus a fifty foot setback. If you do the scenario planning, you're going to wind up, you're going to come up with situations where you're going to have three different setbacks. You're going to have a setback based on the erosion rate, a setback based on the lot depth and as Imai pointed out there's going to be a different setback based on the minimum buildable area. You will just have to work some of these scenarios to your mind and one of the things to consider is to still use the formula and the erosion rate but tie the minimum buildable area to the lot depth. So currently under the table right now, a lot with a lot depth of a hundred feet a hundred lot ( )feet would have a minimum buildable area of twenty-one hundred • square feet. A lot that is five hundred feet long, should the minimum buildable area be twenty one hundred square feet? And that is a question and that could be a problem, so another formula to consider is the minimum buildable area equals twenty-one hundred times the lot depth over one hundred. So what this does is the lot that has five hundred square feet in linear depth divided by a hundred is five, and you could multiply that five times twenty-one hundred. If you work that out it, may seem like a very large structure, but what's going to happen are actually what's going to happen is if you don't use this type of formula for a say you have a five hundred foot lot with a or say a three hundred foot lot with a three foot erosion rate and the person wants to build a very large structure, that erosion rate, three times a hundred feet, is going to consume the entire lot and it's going to either, they're either going to have to use the minimum buildable area of twenty-one hundred square feet, or they're going to have to use the erosion rate which will consume the entire lot. You will get a scenario where the erosion rate is something like this, say here's the ocean okay say you use the erosion rate you get something like that and if you use the old minimum buildable area you get something like this. If you use the new minimum buildable area times an adjustment factor you'll get something that's closer to the scientifically based erosion lot because otherwise it's just going to default with a hundred feet according to your table right now. If you use the lot depth, the maximum setback is a hundred feet okay, so those are some things to consider. Mr. Furfaro: Thank you. Before I let you sit down I will ask any of the Council members if they have a question of your two examples. Mr. Bynum. TIM BYNUM: So Mr. Hwang, during the discussion about odd lot .shapes you know we end up with triangles, I think we could determine what a reasonable buildable footprint is and then determine where that line was and then apply it. There is probably maybe not a formula but some kind of recommendation to address that as well. Mr. Hwang: Yes, well it's actually in your current rules now that the director has for odd shape lots, they are supposed to have the discretion to turn the lot depth into a triangular lot, but we're just saying to maybe put that into a policy or a guidance before the application comes in. Mr. Furfaro: So do you have any recommendations on what that verbiage might be? Mr. Hwang: No, because there's and no not right now I haven't thought about it. You can have flag lots, triangular lots, and I think the Planning Department would be best to figure that out. Mr. Furfaro: Well thank you very much for the clarification of your earlier comments on the use of some formulas, it was very helpful. Thank you. Are there any speakers that have any additional presentations? Come right up please. CHRIS KONGER: Aloha. Mr. Furfaro: Will you need to be drawing some examples? Mr. Konger: No. My name is Chris :Konger, and I am a sea grant extension agent with the University of Hawaii. I serve as a technical advisor to the 8 • Department of Land and Natural Resources, and very briefly I would like to explain what a sea grant agent does. We are advisors, we are not advocates, we are scientists that are replaced in-house, and I am speaking under that capacity as a coastal geologist with five plus years of work in hazard mitigation and shorelines along Hawaii. From that perspective I would like to say that at a first cut I am supportive of changing the focus to a science based erosion rates. I believe that was the original intent was to use the best available science and the erosion rates. The average annual erosion rates that have been calculated by the University of Hawaii are the best available science at this point. Looking at the alternatives that were proposed between minimum buildable areas versus a table, I think it depends on your ultimate goals. If your goal is to preserve development rights while at the same time acknowledging the pressures, the physical natural pressures of eroding coastlines, and using a minimum buildable area as opposed to a table, the table which has the inconsistencies which Mr. Hwang already talked about preserves as much of that physical buffer between the development and the eroding coastline as possible. For instance in the example that Imai presented where you had a hundred foot deep lot and you reverted to the minimum setback of forty feet, you just went straight to the table, then you were left with basically a three thousand square foot buildable home. If you have a minimum buildable standard for instance, and I would not recommend this as size but just to say perhaps twenty-one hundred square feet, then obviously you are able to set that house back further on an eroding coastline. Now it's important to remember that in these instances where the erosion rate is so high that you're not left with a minimum buildable area, you are under extreme pressure from the natural environment. The coastline is eroding and you do have all the inclement hazards the natural hazards from hurricanes, from storms, from large waves, from wind that are expressed on an annual and a decadal scale along that property. In these cases it is in the best interest of the homeowner to be set back from these hazards, and it's in the best interest of the community, and that you are reducing the liability along that coastline. You're also preserving shoreline access, you're preserving the coastal environment in this region by moving that pressure, that development pressure as far back as possible and you are delaying the amount of time that it will take before you have a conflict between an eroding coastline and developed properties. Now that said, it should be re-evaluated as to what an appropriate minimum buildable area is and I would leave that obviously to your capable hands because it's pressures that extend beyond just the natural environment. this is also land ownerships and social and political rights as well. Lastly I would say that by acknowledging these areas where you have this conflict, where obviously the erosion rate is great enough that you're not able to have a minimum buildable area and you should also re-evaluate the side and Mauka setbacks. These are great opportunities to achieve a minimum buildable area while not pushing development closer to the shoreline. If you have a ten foot setback to from the roadway, and you minimize that to say a five foot setback, then you've given yourself five more feet Mauka that you can push that home. Obviously this wouldn't be the norm but in those cases where erosion rates are exceptional and you do have that pressure from the natural environment it may be appropriate to look to the side and Mauka setbacks as well. Thank you, any questions? Mr. Furfaro: I will ask that question. Mr. Konger: Sure. Mr. Furfaro: So that I can recognize the individuals, but Chris thank you again for giving us an overview of what the original intent and giving the 9 • County the ability to be fair but reasonable and also limit any potential exposure we might have. I think Mr. Bynum has a question for you. Mr. Bynum: Yeah, so you were recommending that we look side of Mauka and reducing those setbacks in order to maximize a buildable footprint right? And then another question I guess would be of everyone here, in the law it's currently twenty-one hundred square foot buildable footprint, and I think almost everywhere allows two story, so that's a four thousand two hundred square foot home which is larger than normal, I would think. So would you recommend or has this been said already that in those lots where there's extreme pressure, that we consider having a formula reducing a buildable footprint below twenty-one hundred square feet in order to protect the homeowner from themselves, so to speak? I think I heard that earlier, but I'm not sure, but it would seem that it's something that we should consider of having a formula there. Based on the amount of pressure that the shoreline's putting on is if you have a very small lot with a low depth perhaps the reality is you can't get four thousand two hundred square feet built on to that you know you might have to settle for twenty-two hundred square feet or something which could reduce the buildable footprint. Does that make sense what I'm saying? Mr. Konger: It does from hazard mitigation perspective. It's important to always build for all hazards, not just for erosion, and from that perspective, as long as the two-story building were built to withstand the other hazards with their inclement on the shorelines, such as winds, hurricanes, and other factors, then it would certainly make sense to push the development Mauka as possible by minimizing the footprint in the ground but still maintaining the buildable area by having it be elevated two stories rather than just a single story. Mr. Bynum: And I'm just brain storming right now but maybe the trigger is when the erosion rate says that the structure is likely to go down in seventy years, you know, it's like if the erosion rate says you know the setback is going to be twenty feet in four years, that's not the same as saying that the erosion rate says that the house is going to be gone in seventy years. It goes beyond the buildable footprint, in essence. Maybe that would be a trigger where you would say okay we need to look at the minimum buildable. Mr. Konger: And I think that makes a lot of sense and it's irrelevant of lot depth and that's the important thing. If you have a very deep lot where you can't maintain a minimum buildable footprint, then it says you have a huge pressure from the natural environment, you have a very high erosion rate, and so that becomes a new point, and we're simply talking about threat along that coastline and if you have a high threat whether it's a deep parcel or shallow parcel you're adjusting your footprint, you're adjusting your design to the maximum extent possible to remove yourself from that threat and to preserve and protect the natural environment, the coastline, and shoreline access in front of you. Mr. Bynum: In just taking this one step further, I think that becomes a policy call about what is reasonable, what is a reasonable amount of restrictions for a property owner. I think the Supreme Court has dictated that. we have to leave some economic value and we can't take away all economic value in famous coastal cases saying you can't say or you can't build anything, but where that line is in terms of what's a reasonable mitigation when you have that extreme pressure, and I guess that's a policy call. But you would agree that there's possibly a formula or a triggering mechanism that makes sense and is practical for when you would reduce the footprint? 10 • • Mr. Konger: And I believe you already have that available to you with your annual average or the average annual erosion rates. When it shows that there is no longer a buildable footprint on a parcel, you're seeing the expression of a highly eroding coastline, and you have that natural pressure already. So I think you can use the tools you already have with those average annual erosion rates and where they are showing a very high erosion rate where you don't have a buildable footprint. Using them alone, then you know that you're under pressure, which you're under the physical pressures of the natural environment, and that would be when you would want to look to these alternatives. Mr. Bynum: Excuse me if I'm being redundant. Would a possible trigger be that when that erosion rate actually crosses the footprint line that it would be a trigger that says okay this is the time? Mr. Konger: The minimum buildable footprint? Mr. Furfaro: Yes, I mean if the prediction is that the shoreline is going to actually hit the structure, in essence maybe that's the point when you say, hey that's reasonable now to even reduce a buildable footprint. Mr. Konger: Right. -_ Mr. Bynum: And I'm just thinking out loud. Mr. Konger: And so that setback line is seventy times the average annual erosion rate. They choose seventy because prior research has shown that the average life span for a coastal home is seventy years. Now it's important to remember that's the average, that means fifty percent fallable for then and fifty percent lasts longer than that, so you are only hitting the halfway mark for your structures and that assumes minimal renovations. Mr. Bynum: I recall from more than three years ago that testimony from Mr. Hwang about the research about what's a building life of a typical structure and that was part of our calculations that we want to keep this science based not in our exact number but a number that is based on some research. Mr. Konger: Exactly, and so under those criterias you're exactly right. Fifty percent of the structures will be impacted if it maintains the average annual erosion rate so that would be great criteria. Mr. Bynum: Thank you very much for your testimony. Mr. Konger: Aloha, thank you. Mr. Furfaro: Thank you. Let me see if there are other members that have questions for you. I'm sure that Mr. Bynum covered a great number of them. Any other questions? Thank you again for your testimony. ~- Mr. Konger: Aloha, thank you. Mr. Furfaro: Thank you. I believe Mr. Abbott. THORNS ABBOTT: Yes. 11 • • Mr. Furfaro: Mr. Abbott I presume. Mr. Abbott I also have testimony that you submitted on November 23ra. Mr. Abbott: Yes sir. Mr. Furfaro: It's several pages, so I would like to ask you if you could just go through the highlights. Mr. Abbott: Thank you very much. My name is Thorne Abbott with Tec Inc. T.E.C. Inc is an environmental firm that does renewable energy projects and I handle coastal development for them. I also worked as the shoreline planner in Maui County for five years. It's a privilege to be here and I hope I can always be a resource for decision makers in the public. I won't go over my written comments very much. There are two comments that I didn't address in there that I think are very important. The first thing is that the purpose of the coastal zone management act and the shoreline ordinance is to protect people from building in harm's way, and then the second thing is to protect public access such as shoreline access, beaches, and sand resources. The AEHR erosion rates that Dr. Fletcher has developed is a very, very powerful planning tool because it can tell you how to avoid a place that is likely to erode away during the lifespan of a structure and that's very powerful. As we all know we have winter storms and they may hit a beach and push all the sand to one side of the beach and then in the summer that gets pushed back, so there's kind of an ebb and flow along the beach with sand. That beach might change forty feet in depth, the shoreline might retreat inland forty or fifty feet. Based on the proposed amendments that erosion isn't captured necessarily by Dr. Fletcher's maps, that's an episode that's a very short timeframe and so you want to have a different setback for those circumstances and that's why you need the lot depth setback, the average lot depth which was in the tables. The other reason why is there's a lot of other coastal hazards, there is things like wave innovation, there's flooding, there's high wind and high surf. If you are on a clay embankment and it rains very hard and all your storm water goes to that spot, the clay expands and can slump. There is a picture in my testimony of someone that built with an inadequate setback and had a big rain storm and they're on a big high cliff and the whole cliff collapsed and they didn't have enough area to get equipment in to fix the problem because they only had about ten to fifteen feet between their home and the ocean and that happened overnight. I think it's very important to leave the lot depth setback in the rules, in the ordinance. The other thing is you can build anything you want on the beach. You can build a house on the beach here on Kauai with this ordinance. You can build an erosion hazard zone with variance and the only difference is that the decision isn't made by the planning director, it's made by the Kauai Planning Commission. If you're going to let someone build in harm's way, you're taking on some liability and there may be reasons, maybe you need an ambulance station at that particular location and you know its lifespan of the structure it's going to erode away but it's more important to have regular emergency services at that location. You can build it and I think if you're going to take on that liability especially if it's a private landowner, or a private homeowner and you know you're going to allow them to build somewhere where it's going to erode and their house is going to be in danger then you're taking on liability and that decision shouldn't be made behind closed doors by a director, it should be made and that means no disrespect to anyone, but it should be transparent and it should be done by the commission. And that's what the variance procedure is for. Thank you very much, it's a privilege and I hope to serve you as a resource anytime in the future. Any questions? 12 • Mr. Furfaro: You can direct that to me. Any questions? I think we will ask around the table. First of all I want to thank you again for your ongoing participation. Mr. Abbott: Thank you very much. It's a privilege to be here. Mr. Furfaro: So on that note for Mr. Abbott, are there any questions? Mr. Chang, go ahead. DICKIE CHANG: Thank you Mr. Abbott for coming. In your presentation to us, where is this picture taken? Mr. Abbott: That's on the Westside of Maui up by... Mr. Chang: Napili? Mr. Abbott: Yes Napili, Napili Bay very close to it. Basically there's a big storm and that's on Chip's maps and there's no erosion rate in that area, but it's a clay embankment and they had all there storm water from their roof running into their backyard and their backyard got very wet and collapsed and they lost about twenty-five feet in one evening. One of the problems is that there is only about ten foot for them to do staging and that's not enough area, so they're really stuck. It cost them big bucks to fix that. Now had they set back further, they would have had different alternatives that they could have pursued. Mr. Chang: Thank you. Mr. Abbott: Mahalo. Mr. Furfaro: Any further questions? Mr. Bynum. Mr. Bynum: Mr. Abbott thank you very much for being here and your written testimony and I just want to pose the same question and you kind of addressed it here. Do you believe that it's reasonable and practical to reduce the buildable footprints in those lots that have a real pressure from the environment? Mr. Abbott: I think you have to let people have reasonable use of their property. When we wrote the ordinance and I participated in that and I was very grateful to be included in that, we set minimum buildable footprint as you mentioned twenty-one hundred square feet, which is forty-two hundred square feet in house. If you couldn't get that you could even go down to fifteen hundred square feet, which would double to be three thousand square feet so you know that's a fairly adequate home for someone. I think adjusting side yard setbacks and front yard setbacks is a better way to go than giving up on the shoreline setback. The shoreline setback you know you're going to have an issue, you know it's pretty proven and even if you don't have any erosion at that site, as I mentioned there is other coastal hazards-you have to address, it also ends up protecting things like lateral access along the shoreline. So I think you have to have reasonable use and that reasonable use can be made as a decision by the commission through the variance process. Does that answer your question sir? Mr. Bynum: Kind o£ What I had talked about earlier was perhaps those lots that are highly pressured, that it would be reasonable to reduce 13 • the buildable to below twenty-one hundred square feet to protect those structures from potential shoreline erosion. So I wanted to know if you thought that that was reasonable and practical. Mr. Abbott: I think that's reasonable and practical and I think part of the reason we left the variance process a little bit open was because each lot that has that circumstances is going to have very unique situations and so you can design and the commission can recommend the appropriate building footprint rather than setting something in stone. Mr. Bynum: But a variance requires an environmental assessment and considerable expense to our landowners, is that correct? Mr. Abbott: Well considerable ten thousand dollars. I don't consider that an onerous if you're investing a million dollars in a property, I think that's prudent. Mr. Bynum: Then the other question I had is, your testimony says that if the County of Kauai in essence gives a permit to build a structure that it knows will be in jeopardy that it could present some liability for the County? Mr. Abbott: I believe that's correct, yes. Mr. Bynum: And does that come from any kind of legal opinion when you were at Maui or a personal opinion? Mr. Abbott: That is my personal opinion. I am not an attorney, I have read a lot of case law and I believe that there is a liability issue there. I know in Texas what they did is they said you can build wherever you want but if a storm comes and takes your house or moves the shoreline inland so that your house is no longer connected to say the road, the sewer, the electricity, we are not going to provide you any public services. And that's how they got out of their liability as I understand it. So that way they wouldn't have a taking; everybody is worried about takings you know. Oh gosh we're going to be in a takings case, there hasn't been a takings case. There hasn't been any takings cases that I know of in Hawaii from shoreline setbacks. Even on your deed when you look at it, it says there are two restrictions one is minimal rights for the State of Hawaii and the other is shoreline setbacks because it's a public trust doctrine state. The public owns that land, that coastal shoreline, you know, Makai of the shoreline that's really for everyone. Mr. Bynum: I believe that disclosure also says the square footage of your lot may diminish based on this, right? Mr. Abbott: I think so, I'm not sure, and well in Maui County they use the lot on record so they go by the lot on record. For the North Shore I would say that almost every home has a third of its lot is in the water and I know of one TMK entirely under the water and the guy still pays a dollar tax every year so and I don't know why. Mr. Bynum: And the reason I asked the liability question and I don't know the answer to this right now but whether the County is notifying owners. We just approved a structure that we know from scientific studies may be threatened in or during the life of the structure. Are we notifying them? Are we letting them know that the County doesn't intend to take liability for that? And I 14 • think notification is an important part of that, eh we just approved a structure that we know scientifically may be threatened in the life of the structure and about whether that should be part of the law. Mr. Abbott: If I may add the variance process one of the mandatory conditions is that you have a hold harmless agreement so the people are on notice. Really what I found in my experience is that Dr. Fletcher's tools are very, very powerful because they serve as a great education to someone especially if they're not from here and you need to educate them about the Pacific ocean is really big and a lot of people that are not from here are not used to the kind of waves that we get here. It's a great education tool and most people don't really want to build and sink all their life savings into a place that's very likely to be in trouble in a short timeframe. They're buying that property so they can be close to the beach. If they're going to build something and its going to ruin the beach, they're losing what they came for. Most people really don't want to do that, they just are not aware, and so using the erosion rate base setbacks is an education tool for them. Mr. Bynum: Thank you for your testimony and just a comment. They don't want to do that until the water is lapping at their back porch, then all of a sudden a seawall is acceptable right. Mr. Abbott: Yes. Mahalo Nui Loa, thank you. Mr. Furfaro: Mr. Abbott, I have some more questions for you. Mr. Abbott: Absolutely, thank you sir. Mr. Furfaro: I just want to make sure we are all certain and I have members of families both in Ha'ena as well as Makaha and those lands were acquired either through Kuleanas and/or through the closing of Waianae sugar. Example, in 1963 we had such powerful surf we lost half of Farrington Highway into the ocean. Today 2010 I go to my family home and we got almost a hundred foot of sand again back out there so there is this ocean and I can almost describe the boulders underneath Farrington Highway. Your earlier comment you know we have gone through a couple tsunamis in 57 and 60 and because of that on the North Shore this formula of considering maybe a smaller first level of a house and by putting a second level say only fifteen hundred square feet each on each. Actually with our current ordinances you are aware that people have to build on stilts to begin with so those homes do not necessarily find themselves being attractive for a second story. Do you know of any cases as it relates to limiting square footage in areas that might have coastal challenges even after you have elevated the home? Mr. Abbott: I'm aware of in Maui that there were some lots that became unbuildable when you looked at the lot on record because I know of one circumstance where there were two lots back to back from Mauka to Makai, and the one lot had lost seventy five percent of the parcel and the other lot had lost twenty- five percent. They wanted to consolidate and subdivide into two parallel lots and then build two houses and that we did not support we said if you want to do that you need to go to the commission to get a variance because the setback really left them with a buildable building depth of fifteen or twenty feet which wasn't very big. Now if he had wanted to go get a variance he could have done that and the commission could have looked at the specific factors of that lot to decide what was an appropriate size house. 15 s • Mr. Furfaro: Do you know the Maui Planning Commissions outcome with that variance application? Mr. Abbott: The person never pursued a variance. They pursued a legal course of action instead and that's still in court. Mr. Furfaro: Still in court? Mr. Abbott: Yes. Mr. Furfaro: Do you know the name of that particular challenge? Mr. Abbott: I don't off the top of my head, I apologize for that. I am aware of other situations where there was very high erosion but we were always able to work out a reasonable footprint for the person and their home and this was residential housing I'm speaking of so we never had a case where we not only have a minimum buildable depth as well, it's not as refined as Kauai's, but we never had a case .where we had to use it. It was always done through a process from negotiation/ education. Mr. Furfaro: Let me just ask if there's any other questions from other Council members. Mr. Abbott thank you very much for being here and I did circulate your November 23 testimony to the other council members and I will also circulate it to the incoming members. Mr. Abbott: Thank you very much. I really appreciate the privilege, Mahalo. Mr. Furfaro: Since we have no more presentations and I would ask that the Council members elect extend the courtesy of going last in the workshop here so I can see if we have individuals that would like to give testimony on what has been presented so far. Mr. Rapozo this is council elect I will let you go last okay. Is there anyone else in the crowd? Barbara Robeson, anything to add? Caren, anything to add? Please come right up and I will extend to you your full six minutes. CAREN DIAMOND: Aloha, thanks for having this workshop. I just want to say a couple of things... Mr. Furfaro: Excuse me you have to introduce... Ms. Diamond: Caren Diamond. Most of the amendments that are in this bill relate to how to make it easier for people to develop and along the lines that Mr. Konger was speaking to you. On the other side of that property is the beach and it's our public beach. If you make it so easy that erosion doesn't matter and people can develop the lots that are erosion prone and build big houses there, then the beach disappears there. There is no other choice for accept that to happen so understand while you're deliberating on this bill that there's more than just the property rights issue there's also the public rights and the public trusts issue and they're abutting rights and responsibilities. The State and the County have abutting jurisdiction that often they're not on the same page with and it's really important that this bill actually implements the erosion rates and as I look at the changes I don't see that it does implement the erosion rates, I see that it made it easier for the development to occur. I have a special request and my request is, I 16 • • know you all know that I care most about the North Shore and it is a special planning, special shore district but it's never been treated as such and I'd ask because it has the highest waves and the most amount of hazards that you actually make a component of this bill applied to high wave areas such as the North Shore. People have to know when they build, I guess I was a little bit confused by Council member Bynum's question because if your house is going to disappear in 7 years then the county has utterly failed. The county when they give these permits for people to build it supposed to be that there's some reasonable expectation that your house is going to last, not 7 years. But it's not that the person that builds that house is the person who is going to get stuck with the house that's eroding, it's the person who they sold it to. The person they sold it to absolutely was relying on Government having done their job and if you don't have adequate setbacks and you know that the erosion rates are high and over a certain period of time that land is going to disappear. The county absolutely has every right and not only right but responsibility to do good planning and not allow houses to be put there and I think the whole basis for the erosion based scientific setbacks was it gave the county the legal ability to actually plan correctly and use that as a legal basis and a tool to do that. So I urge you in reformulating this bill to actually hold firm to making it an erosion based setback bill and not to be so quick to just go into the minimum depth based things. I don't think the footprint should be considered into so that I think your footprint comes afterwards so that if you have a lot size that's small and with a high erosion rate you don't come with this reformulated idea that you have this large house that you have to fit there that instead you figure out what your erosion rate and what the setback would be and then fit a house that fits there. The variance procedure that was thought out and that's in the existing bill is actually good and it could be taken a little further even. The house size could be reduced even further than fifteen hundred square feet. There are a lot of positive things that could be added to this bill that hopefully maybe something could happen and you could have rolling easement, you could have a lot of things that could strengthen the bill. I would ask each of you to help think about the things that would strengthen this and will come with more ideas later. I don't think the bill that is written right now really implements the coastal erosion rates and I think our beaches are probably the most important things that Kauai has for everybody. Whether you're a visitor or resident no matter what you look at, whatever added is for Kauai it's always showing our beaches on the North Shore, always showing Makua, always showing them and they're almost gone. I would ask you to look forward in this bill to good policies. Mr. Furfaro: Thank you. Let me see if there's any discussion. Mr. Chang. DICKIE CHANG: Good morning Caren. Ms. Diamond: Hi. Mr. Chang: You know for the record, did you say seven years or seventy? Ms. Diamond: Seventy is the average life of a house. Mr. Chang: Okay I just wanted to get clarification. I thought I heard you say seven. l~ • Ms. Diamond: Because I thought that was the question that I heard. I heard it was that if a house was going to disappear within a certain amount of time, then we would mark that line and tell a homeowner your house is going to disappear in seven years and I think that's faulty planning. Mr. Chang: Okay, thank you. Mr. Furfaro; Any other questions? Mr. Bynum. TIM BYNUM: Good morning Caren. Ms. Diamond: Good morning. Mr. Bynum: The testimony you heard from the seagrant folks here today was contemplating amendments that would stick to the scientific based shoreline setbacks and in most instances increase the setbacks from over the formula, table based formulas that are currently in the bill. Do you support that concept? Ms. Diamond: I support the concept yes, I would have to look at what the sizes do to individual pieces and what it would look like on eroding beaches. Mr. Bynum: And then just in case you're confused, the question I was putting forward was... could we contemplate reducing the minimum lot size even further than the current bill in order to set the setbacks further and not to bring them closer? I haven't come to any conclusion on that but we have these resource people here today so I wanted to know if they thought that was reasonable or what their take was on the twenty-one hundred square foot. I think Mr. Furfaro makes an important point too that there are instances where you can't double that because it's not going to be a two-story home. Ms. Diamond: The minimum building lot size and the minimum building footprint terms seems to get confused quite often and used interchangeably, so I think that's one point of confusion whether which we're talking about. Also on the North Shore if you go look at the houses that have been completed in the last two years, the whole downstairs is enclosed and they are two story houses. Mr. Bynum: So that's a interesting question and I don't know if you enclose the downstairs for what's allowable for storage and so forth is that included in the square footage for tax purposes and that kinds of things. Ms. Diamond: If you look at the Building Department records, I think they include it in the square footage of the house. Mr. Bynum: Thank you. Mr. Furfaro: Thank you Caren and again I will be sending a few questions over to planning as well as the legal. Thank you very much. Now on that note I do want to say that there seems to be what seems to be coming to a close on this discussion but I'm first going to recognize that Councilman-elect Mr. Rapozo because he had his hand up in the back, then Councilwoman Yukimura, and then is • i Nadine since you will be chairing planning I will give you a chance to speak on this workshop as well. MEL RAPOZO: Thank you Mr. Furfaro, Mel Rapozo for the record. Mr. Furfaro: I just want to share with you, when you stepped up I gave everybody six minutes. Mr. Rapozo: Okay thank you. And first of all I want to thank all the experts for being here for Mr. Fletcher, Mr. Abbott, Eversol, Konger and Hwang, I mean we worked a lot with them in prior terms and spent a lot of time on this bill and you know the experts are experts and we need to rely on them but for the non-experts we have the HRS which is the state law. Let me just read 205-A.21 which is the findings and purpose and it says that the legislature finds that special controls on developments within an area along the shoreline are necessary to avoid permanent losses of valuable resources and a foreclosure of management options and I think what was discussed earlier and to ensure that adequate access by dedication or other means to public owned or used beaches, recreation areas and natural reserves is provided. The legislature finds and declares that it is the State policy to preserve, protect and where possible to restore the natural (inaudible) of the coastal zone of Hawaii. That's for the non-experts, that's just for the legislators that need to rely on the intent when we talk about what was the legislative intent I think it's real clear. The Legislative intent and I believe it was Mr. Konger that mentioned earlier it's twofold and I apologize if I have the wrong person but one was obviously to protect the homeowner and then the second part is to preserve the beaches for the people. We talk about the dangers and hurricanes and tidal waves and whatever wipes out the house, but when the erosion creeps up on the properties as we've seen so much in the North Shore here, you actually remove the beach from the public because now what used to be the public beach way, the access way is now somebody's front yard that you cannot cross over. I think we need to be very, very cognizant of the State Law Chapter 205-A, because that is our guide. In fact it is pretty much a declaration that we will preserve the coastline. Now a lot of discussion about minimum buildable area and that's not what the State Law is saying, it's not saying save your coastline providing it doesn't infringe on someone's rights. I think Mr. Abbott said it quite clear, we have had no takings lawsuits and it's a threat that always sits but if we are passing a law because it is for the preservation and protection of our people, let them sue because I don't think that they have grounds if in fact they bought a lot and they want to put a huge home on that infringes on the shoreline, on the certified shoreline. I'm blessed that I will have an opportunity to actually vote on this measure but I think as for the public's information and for the people that has to make a decision you know please rely on 205-A, read that because it sets the tone on what the County should be doing. Understand that the homeowner or the landowner wants to build their big homes and that's fine, build it but then you must buy a bigger lot. Don't buy a small lot expect to build a big home so that you can own the beach, that's not appropriate. Anyway that's my testimony, thank you. Mr. Furfaro: Let me just see if there's any questions for you Mr. Rapozo. Any questions... no, and I look forward because it will be in the Planning Committee relatively soon on this amendment. Mr. Rapozo: Thank you Jesus. Mr. Furfaro: Councilwoman-elect Yukimura. 19 • JOANN YUKIMURA: Planning Chair Furfaro, and members of the Committee and all of the resource people who have come here today, thank you very much. Thank you especially Chair Furfaro for inviting the resource people here who were such a big part of putting the first law together. I just have two points, one is that the coastal erosion rates long term do not take into account global warming and as you may have seen from this very well written pamphlet by Dr. Fletcher that's actually available here on the counter of our County, Council Services office. The sea level is rising in Hawaii and the coastal erosion rates don't take that into account. All this means to me is that in implementing the coastal erosion rates we should or at least in the favor of protection of the resources and an assumption that it's probably more than .the coastal erosion rate. My second point is that with respect to the issue of minimum footprint and setbacks that there actually is in the existing law provision for adjustments for setbacks to the rear and to the side and adjustment of minimum footprint and that's... I guess I don't know if I gave my name, this is JoAnn Yukimura, sorry I just remembered that, page 17 of okay well its 16 and 17 and I have a copy of the present law and you might be looking at amendments. So what it is, is let me go by sections... thank you Lisa. It's under variance application 8-27.9 and then oh no see it's 8-27.10, criteria to approval for variance and it's 8-11, construction of a new dwelling unit in the case where the applicable shoreline setback line does not allow for the minimum buildable footprint for a new dwelling unit, the commission may consider granting a variance under the following guidelines, the front yard setback may be reduced where feasible to allow for a minimum buildable footprint and the side setback may be reduced where feasible to allow for minimum buildable footprint, the buildable footprint may be reduced to fifteen hundred square feet and then if all the approaches are done to the maximum extent practicable, the calculated shorelines may be reduced but under no circumstances less than forty feet. So that's already in the law and then also the issues of liability are covered under section 8-27.7, permitted structures and activities within the shoreline setback area, and it says and this is now in section 27.7B2 and 3, the applicant shall agree in writing that the applicant and successors and permitted assigns shall defend, indemnify and hold the county of Kauai harmless from and against any and all loss, liability, claim, or demand arising out of damages to set structure or activities from any coastal hazards or coastal erosion. Also they shall not come in to ask for hardening structures to protect their properties which could affect adjacent properties and accelerate the erosion in other properties. So there are these provisions that you should be aware of as we consider amendments to the existing law because they are in the existing law right now and they perhaps need to be refined but certainly not weakened by any other provisions. Thank you. Mr. Furfaro: Excuse me JoAnn that is equally my fault I did not ask you to restate your name, I'm sorry. Ms. Yukimura: No problem I guess it's in the record now. Mr. Furfaro: The pieces that you're reading from in fact are the variances as it relates to the current CZO and other restrictions as to someone wanting to seek a variance. Ms. Yukimura: Well the variance would be the process for a homeowner where the law or the regular parameters don't allow them to build so then they're asking us to weaken the law so that they can build something. 20 • ~~ J Mr. Furfaro: I understand your point. Ms. Yukimura: And the variance process provides for a procedure as well as some guidelines for how that variance would be granted, so it's kind of a logical place to put something that doesn't fit the regular parameters of the law. Mr. Furfaro: So I just want to say, I guess I was agreeing with you that's the area for the variance and that's how you size your jacket to make sure the sleeve range is correct and the waistline works which I have difficulty with now but I was agreeing with you so that's the place that the variance should be highlighted and strengthened. Ms. Yukimura: Alright thank you very much. Mr. Furfaro: Let me ask if there are any other questions, any other questions, Mr. Bynum. Mr. Bynum: Just two things real. quick I mean as you pointed out all those provisions are in the variance, if the rules and the need of this allow for a shoreline setback that's too close you never get to the variance where there are those limitations. I haven't come to any conclusions but... Ms. Yukimura: I don't understand your question. Mr. Bynum: You get to a variance if you can't or if it's not all ready outright permitted. Ms. Yukimura: That's correct. Mr. Bynum: Okay so if what we are outright permitting as a buildable footprint of twenty-one hundred square feet, and I don't know I haven't come to any conclusions, it's just something that I want to look at in terms of what's outright permitted. Should there be a trigger to reduce that and that would make it more likely to get somebody to a variance, but I could be totally out to lunch here, but the other thing is the provisions about hold harmless and notification is in the law, but you and I both know of circumstances and I think it's a follow up. Are those being implemented? Are those notifications actually occurring? As an example, in the past we've had easements that were never recorded and so having something in the law is only as good as implementation. So it triggers for me a follow up to have a better understanding of how those provisions are being implemented being that this law is only a couple of years old. Ms. Yukimura: I think that's a very important question. The job of the Council is to write the law, but the administration and implementation of the law is in the Planning Department. If that is not being done, then the safeguards aren't being implemented or not being used and established. Mr. Bynum: Well it's important because I've been here long enough to see shoreline accesses that were never recorded, that they're in the map, and we don't have access to them anymore because the department at the time didn't follow through with implementing what the... you know what I'm saying. Ms. Yukimura: Yes I do and one maybe the extreme protection against that is a pragmatic audit of the planning department. 21 s ~ Mr. Bynum: Actually our county auditor is contemplating just such. How is the planning department implementing the provisions and the requirements? Ms. Yukimura: Because that would be one of the ways to find out whether it's being done. Mr. Bynum: Right and I believe that's in our current auditor's plan, I saw Lisa nodding... Anyway I just wanted to make that point, thank you very much for your testimony. Mr. Furfaro: Along that line, JoAnn, I do want to say that we will be visiting the Auditor's role very soon and any special assignments we give them which will come in front of this council. There has also been talk in my committee as (inaudible) planning chair about the value of a Hearings Officer for those people that we might reject any of their applications for variances on. Ms. Yukimura: Yeah and I guess another point is a pragmatic point is a GIS system which incorporates all of this new data that Dr. Fletcher has developed with his team so that it's available accurately to everybody and including the Planning Department and there's a record lot by lot of the permits that are given and how they're conditioned, etc. etc. That's a really key part to establishing a good history of the lot and also for potential buyers and future enforcement in administration. Mr. Furfaro: All good points that we need to tackle with the new council. Ms. Yukimura: Yes, thank you chair. Mr. Furfaro: Thank you very much. Councilwoman-elect Nakamura, I'm going to give you the floor if you'd like because we are coming to a close here. NADINE NAKAMURA: Thank you, Nadine Nakamura, Councilmember-elect. I just got elected a few weeks ago and found out last week that I'm on the Planning Committee and will be chairing the Planning Committee and so this is the first that I am looking at this bill and amendment. I know I have a lot to learn and catch up on and will be looking closely at this and I'm sure this is going to be on the top of the agenda. I would just like to follow up on JoAnn's question about the erosion and accretion rates that came out of this study and on top of that how does global warming and sea level rise impact. I think since Chip Fletcher is here I would be interested in hearing his take on that question. Mr. Furfaro: I would be glad to ask him to come back Nadine and address your query. Mr. Fletcher would you mind coming up and I don't think I need to rephrase the question since it's been. summarized by both councilwomen elect. Dr. Chip Fletcher: Thank you, Chip Fletcher. Thank you for that question, as part of my answer I would bring your attention to this document which is called Hawaii's changing climate. It has in jargon free laymen's language a review of~the observed changes in climate in Hawaii, including changes in rainfall, 22 • i changes in sea surface temperature, changes in ocean acidity, and it also addresses the issue of sea level change and coastal erosion. In Hawaii we have a tide gage in Honolulu Harbor that goes back nearly a century and when you look at that tide gage it gives a long term rate of sea level rise on the order of about six inches per century. It does not however presently record an acceleration in sea level rise, we do not see acceleration in sea level rise. There are other places in the world especially the West Pacific where they have seen a dramatic acceleration in the rate of sea level rise beginning around 1990 plus or minus five years. The tide gages there show a change from about six inches per century to as much as a foot per century and more in acceleration in sea level rise there. When you look at the global average change in sea level it is rising and it has accelerated but here in Hawaii for various reasons we have not seen an acceleration in sea level rise. In other words the world's oceans as an average are rising faster than the rate of sea level here in Hawaii and many other areas there are exceptions to any average. The shoreline change data that we provided you does include the effect of a sea level that's been rising about six inches per century because that's what been taking place over the last century. Science fully expects and predicts that sea level will accelerate around the world and so we would by extension expect that the rate of erosion would accelerate here in Hawaii as well. It has not yet been documented though. Mr. Furfaro: Dr. Fletcher can I ask you when you reference some of the more dramatic data in the Western Pacific are we talking like, Momea, New Guinea, are we talking Pacific Islands in the west like Palau? Could you give us few... Dr. Fletcher: Yeah we're talking about most of Micronesia, so the Marshall Islands, Guam, the Federated States of Micronesia and we think that the acceleration and sea level rise is because we think again here is that it might be due to an acceleration in the winds which blow typically towards the west and would push water in that direction. This is speculative at this point though. Mr. Furfaro: There is also some difference atmospherically like a tropical cyclone where the wind goes a different direction than a hurricane in the Northern Pacific, is that some kind of relationship? Dr. Fletcher: Cyclone, typhoon and a hurricane are all the same thing, the winds all go in the same direction. Mr. Furfaro; Well I thought I understood, I understood that. Clearly but the wind surfaces go in a different direction depending on what hemisphere you're in. Dr. Fletcher: I guess... does anybody know? Mr. Furfaro: Gee I learned that... Dr. Fletcher: Yeah the (inaudible) of force. Mr. Furfaro: I see somebody going like this in the back. They go in different directions depending on what hemisphere. Dr. Fletcher: The Southern hemisphere they go the other direction. 23 • • Mr. Furfaro: Yeah okay. So is any of that data an understanding of wind direction. Dr. Fletcher: That's not related to what I'm talking about; I'm talking about a persistent long term potentially a change in the long term intensity of the winds and the trade wind bill, not individual storms. If you are asking about storminess in global warming, the current=thinking is that we will see potentially fewer hurricane type storms but that their wind speed would increase so they are potentially more damaging and that's on a global basis. There is a recent paper suggesting that the area of storm genesis and storm tracks are going to move closer to Hawaii so Hawaii may see increase storm occurrence as well as increased wind speed. Mr. Furfaro: Thank you for that clarification, I went to hotel school so I could have been wrong on that East, West direction of the tropical cyclone versus typhoons versus hurricanes. Mr. Bynum. Mr. Bynum: Just a shorthand version of what I took away of what you said about sea level rises. The data we receive takes into account the century's long trend but doesn't include any acceleration that might be occurring because of global warming. Dr. Fletcher: Correct, so I think it was said earlier that you can view these data with global warming in mind, you can view them as a best case scenario. Do you plan for a best case scenario or do you plan for a worst case scenario. Also remember that the data we give you is are essentially an average and so there is much likelihood that the erosion rate would be worse or better because what you're given is an average. Mr. Bynum: As long as you're up there I just want to thank you for this work. I have spent a lot of time on the website that you put together and it's an incredible resource for many reasons behind this and so thank you very much. Dr. Fletcher: You're welcome. Mr. Furfaro: Dr. Fletcher, thank you very much. Dr. Fletcher: Thank you. Mr. Furfaro: Barbara, go right ahead since you didn't have the floor please come up. BARBARA ROBESON: Thank you Mr. Chair, Barbara Robeson for the record. I just have a quick question. As you know I have asked in the past about the report or the study that was available and Dr. Fletcher had the big black binder, is that the one that is available to the public at the Planning Department? Mr. Furfaro: I would say that it should be available to the public but I'm embarrassed to say that the book has not been presented to this council yet so it looks like we might have an opportunity to see it all together. Ms. Robeson: Thank you. 24 • • Mr. Bynum: It just brings up a question for me that maybe Dr. Fletcher can answer which is, is all of that data in the binder on the website? Dr. Fletcher: Yes. Mr. Bynum: Yes, okay so... Ms. Robeson: The maps I know are on the website and the narrative and the conclusions. Okay so the maps are the reports and that report was to the planning department and then someone from the planning department translated those maps into the ordinance, is that right? Mr. Bynum: Just for the record I heard Dr. Fletcher say is that everything that's in the binder is currently on the website, so it is available to the public. Ms. Robeson: Alright, thank you. Mr. Furfaro: Let the record show that Dr. Fletcher acknowledged the statement just made by Mr. Bynum since he didn't come up to the mike and those maps are available and also let us also comment that it is something that needs to be presented to the council in the very near future. I hope you are okay with that Barbara? Ms. Robeson: Yes I'm fine. . Mr. Furfaro: Okay, Councilwoman-elect Yukimura, you can come up for another three minute. Ms. Yukimura: Oh no I just want to suggest that perhaps planning or Dr. Fletcher give us the website here now today so for the record we all know how to access it. Mr. Furfaro: Dr. Fletcher, I'm going to have to ask you to come up to the mic. Dr. Fletcher: I can tell you that if you simply Google two words, coastal geology, coastal geology, the first item up will be the Hawaii Coastal Geology Group, click on that and you will see an option to click on coastal erosion and you can click on either Kauai or Oahu or Maui. If you click on Kauai it will take you to the Kauai website. The specific URL is Hawai`i.soest.edu/coast/ Mr. Chang: Dr. Fletcher, Dr. Fletcher, excuse me can you start all over so we can get that on the recorder. Dr. Fletcher: Sure. Mr. Furfaro: First of all you can go to Coastal Geology is the first one on Google. Dr. Fletcher: The website is www. soest.hawaii.edu/coasts/kauaicounty/KCOUNTY.htmo 25 • tape. Mr. Furfaro: Thank you Doctor because we did record that on Dr. Fletcher: Did you get it on Google? Mr. Furfaro: Yeah we're going to go to coastal geology, at least I am, any other questions of Dr. Fletcher? Thank you Doctor, thank you very much and I would also like to take this moment to again thank Dr. Fletcher for all his work and his commitment here to our shoreline setback bill and our data through the University of Hawaii. Dolan Eversol, Chris Konger, thank you very much and I would also like to again welcome Tiffany Anderson, Tiffany you are now our sea grant person? TIFFANY ANDERSON: Yes. Mr. Furfaro: Okay very good and you'll have a place in the planning department is that what it is? Please come up to the mic if you would please and welcome home. Ms. Anderson: Thank you, my name is Tiffany Anderson and I am now the new sea grant extension agent available on Kauai and I have an office currently in the Planning Department. I am here for any kind of technical coastal process related questions that you have regarding any projects or just any coastal related process questions. Mr. Furfaro: Are there any questions as we welcome Tiffany? If not thank you very much for being here and coming up to the mic. Ms. Anderson: Thank you. Mr. Chang: Thank you Tiffany and welcome back. Mr. Furfaro: Mr. Hwang, I want to thank you very much for going up to the board and giving us also some alternatives on the use of formulas as it comes to calculating setback. Mr. Abbott, thank you as well very much. I'm going to call our group back together here just so that we can again make note that it's tentatively coming to the planning committee. The bill that was submitted by the planning department, the amendments on our coastal survey and they will be on our new committee headed by Councilwoman-elect Nadine Nakamura. I want to thank everybody for coming and for giving this kind of attention to our needs here on Kauai, for us and I'm sure for you, but for us Kauai is that special and we need to give this kind of attention to our home island. Thank you very much, this workshop is pau. Oh Mr. Chang has a message of Mahalo as well. Mr. Chang: Yeah I want to also thank all of you for getting up early and coming to Kauai, I realize it's a Monday morning and it must have been an adventure going to the airport early this morning. I'm glad when you landed you were on one road, drove three miles without any traffic and conveniently parked right out in the front without having to pay for parking so say hello to Honolulu for us. On another note I want to say, Tiffany congratulations and welcome back, you have come a long way from the Ameritech commercial there at Donkey Beach fifteen years ago. Thank you again for all of you, travel safe, and if you got time, cruise around the Island and check us out. Thank you very much again, Mahalo. 26 ~ s Mr. Furfaro: This workshop is adjourned, thank you everyone so much. There being no further discussion the workshop was adjourned at 11:34 a.m. Respectfully submitted, `- L rie Chow Senior Clerk Typist APPROVED at the Committee meeting held on January 20, 2011: NADINE K. NAKAMURA Chair, Planning Committee 27