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HomeMy WebLinkAboutP-0107.01-16 Council Minutes 05-2010- • • • SPECIAL COUNCIL MEETING May 5, 2010 The Special Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, 3371-A Wilcox Road, Lihu`e, Kauai, on Wednesday, May 5, 2010 at 8:36 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum (present at 9:02 a.m.) Honorable Dickie Chang Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Lani T. Kawahara Honorable Derek S.K. Kawakami Honorable Bill "Kaipo" Asing, Council Chair Chair Asing: Thank you. With that, can we have the first item please? PETER A. NAKAMURA, County Clerk: The first item is approval of the agenda. APPROVAL OF AGENDA: Mr. Furfaro moved for approval of the agenda as circulated, seconded by Mr. Chang. Chair Asing: Any discussion? If not, Peter. Mr. Nakamura: Yes. Chair Asing: What I'd like to suggest is that we not act on this communication at this time. Let's move into executive session first and then come back and act on this item. So with that I'd like to call the county attorney up. Mr. Nakamura: Council Chair... Chair Asing: Okay, we have a motion now, so with that, why don't we approve the agenda first. Can I have a motion to approve the agenda. Ms. Kawahara: Second. Chair Asing: All those in favor say, aye. The motion to approve the agenda as circulated was then put, and unanimously carried. ' SPECIAL COUNCIL 1V1~L' TING - 2 - • May 5, 2010 Chair Asing: Now we're back to the county attorney. County Attorney? There being no objection, the rules were suspended. MICHAEL DAHILIG, Deputy County Attorney: Good morning, Chair Asing, members of the council, Mike Dahilig, Deputy County Attorney. Pursuant to Hawaii Revised Statutes, Sections 92-4 and 92-5(a)(4) and Kauai County Charter ~t . Section 3.07(E), the Office of the County Attorney requests an executive session with the Council to discuss legal issues pertaining to County-sponsored stream clearing activities in and around Wailapa Stream and Kilauea River. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. v ES-437 Pursuant to Hawaii Revised Statutes Sections 92-4 and 92- 5(a)(4), and Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an executive session with the Council to discuss legal issues pertaining to County-sponsored stream clearing activities in and around Wailapa Stream and Kilauea River. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. Chair Asing: Thank you. With that, I'd like to call the meeting back to order and have a motion to move into executive session. The meeting was called back to order, and proceeded as follows: Mr. Furfaro: So moved into executive session. Ms. Kawahara: Second. Mr. Furfaro moved to go into executive session, seconded by Ms. Kawahara, and unanimously carried. Chair Asing: We're going to move into executive session. The meeting was recessed at 8:38 a.m. to move into executive session. The meeting was called back to order at 9:08 a.m., and proceeded as follows: Chair Asing: This meeting is now called back to order. We're on communication 2010-118. I'd like to have a motion to approve. SPECIAL COUNCIL ~TING - 3 - • May 5, 2010 COMMUNICATION C 2010-118 Communication (04/29/2010) from the Administrative Assistant, requesting Council concurrence to seek sponsorship of a project to clear debris in and around the Wailapa Stream and Kilauea River area in Kilauea: Mr. Bynum moved to approve C 2010-118, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: This meeting is now adjourned. ADJOURNMENT: There being no further business, the meeting was adjourned at 9:08 a.m. Respectfully submitted, --~ PETER A. NAKAMURA County Clerk /wa COUNCIL MEETING May 12, 2010 The Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, 3371-A Wilcox Road, Lihu`e, Kauai, on Wednesday, May 12, 2010 at 9:12 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Lani T. Kawahara Honorable Derek S.K. Kawakami Honorable Bill "Kaipo" Asing, Council Chair Chair Asing: Thank you. Can we have the first item please? PETER A. NAKAMURA, County Clerk: The first item is approval of the agenda. APPROVAL OF AGENDA: Mr. Chang: Move to approve. Chair Asing: Can I have a second please? Mr. Furfaro: Second. Chair Asing: All those in favor say, aye. Mr. Chang moved for approval of the agenda as circulated, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Next:item=please. i PETER A. NAKAMURA, County Clerk: Council Chair, at this time there's a request to take up as first on the council's agenda on page 1, communication C 2010-122. COMMUNICATIONS: C 2010-122 Communication (05/06/2010) from Derek S. K. Kawakami, Chair, Public Safety/Energy/Intergovernmental Relations Committee, requesting agenda time for SPJ Consulting, the County's retained State legislative lobbyist firm, to provide a concluding report on the 25th Hawaii State Legislative (2010) Session. Chair Asing: Thank you. With that, I'd like to turn it over to Councilmember Kawakami. Councilmember Kawakami. Mr. Kawakami: Thank you, Mr. Chair. I think we have representatives from SPJ that would like to give a presentation, so, the rules are suspended. Chair Asing: Thank you, the rules are suspended. COUNCIL MEETING ~ - 2 - • May 12, 2010 There being no objection, the rules were suspended. RONALD KOUCHI: Mr. Chairman and members of the Council, my name, for the record, is Ronald Kouchi. Thank you for allowing us the opportunity this morning to give you a wrap up on the legislative session. The first thing I'd like to just state for people watching who may not be aware of it, SPJ Consulting consists of James Pacopac to my right, Scott Matsuura who did all of the technical report writing and made sure that all reports were filed electronically on time. He extends his apologies for not being here. I know he'd like to be here, but he's having a root canal done today. And then the last partner, you know the P is for Pat; he was not used on the contract with the county and instead Mr. Pacopac engaged me as a subcontractor to assist on this matter. Our assignment was to work on the bills that were jointly approved by the mayor and the council, the bills that were approved by the Council of Mayors, and the bills that were approved by the Hawaii State Association of Counties. Once the session started, it became apparent that we needed to add a fourth category: bills not introduced or supported by any one of the three groups but that would affect the counties that were introduced by some other party. And so we started adding those bills that affected the county to our tracking list. First and foremost the number one task that we had been assigned was to try to ensure that the counties would retain their full share of the room tax or TAT bill and we are certainly very pleased to report to you today as it has already been reported that the House and the Senate could not agree on what new bill might be passed and with no new bill passing, the hotel room tax in its previous form will continue going forward and having both bills fail, actually results in a better financial situation for the County of Kauai than the House version of $94 million as well as the Senate version of $50 million. And so with the highlight on the TAT bill, you know, James was doing most of the day-to-day meeting with legislators and so I'm going to turn over the second portion of this report to James, but each one of you should have a copy of what he's going to be reading from which was emailed to the council by Scott which was our final wrap-up. And then if you have questions, you know, James and I will be available. Thank you. JAMES P_ACOP_AC: Good-morning,-councilmen. ` Good morning. Mr. Pacopac: It's always a pleasure to come to Kauai. First of all, I'd like to thank several people during this session which really aided in my job to pursue the end results that we had. One of them is, of course, Councilman Derek Kawakami who spent numerous times coming up and also lobbying and also testifying in behalf of the Kauai County for HSAC. Also in... and appreciation also goes to Representative Jimmy Tokioka, who I think did a terrific job in helping us in getting the TAT. Without his help, I don't know where Kauai County would be. So anyway, you have a list of some of the bills that we listed. A lot of them were taken off. We had over thirty-something, maybe forty bills originally starting off. Most of them were killed or taken off, and these are just a compilation of the bills that we felt that was on the list and also some that was not on the list, but we had to pursue it for the purpose of saving Kauai County. I'm sure you had this report for awhile. I don't know if you want to go through it individually or you just want to answer ques...if you have questions on any of subjects. There's only a few bills. House Bill 2016 SD1, this was an HCOM bill which was provided by all the Hawaii Council of Mayors and this one is pretty explanatory and this bill was COUNCIL MEETING • - 3 - • May 12, 2010 really...we had to do a little work on this bill because the bill was actually dead and we had a little confusion because we didn't know that we were supposed to pursue this bill under HCOM. I didn't know I had to do some of the HCOM bills, but in any...anyway, we got to revive it and then we had it passed. Senate Bill 2849, that has to do with the EUTF. This bill went all the way to the end. It was negotiated to the end. HCOM's proposal was to have one, either mayor representative or HSAC representative, sitting on the board. As you know the EUTF was having problems with doing any motion on their trust fund. In any regards, they did pass something that will hopefully make this fund move. One was they changed the structure of the votes. Before it was always atie-tie because you have six management and six union. And now each one has a vote and you only need six to get anything passed. They also added that any funds to the EUTF gotta go to the EUTF. It cannot be transferred out to anyplace else and also requires the Governor to release these funds into the fund and she's been holding it for awhile. Mr. Kouchi: Can I add something (inaudible). Mr. Pacopac: Sure. Mr. Kouchi: I think I'd like to add on the first bill, there was some...I guess some discussion via the Garden Island newspaper regarding, you know, having the police chief be appointed or removed as prescribed by charter. There was the impression that if this bill passed that the mayor would have the sole authority to appoint the chief of police and that's not the case. All it says now is that each individual county via their charter would have the ability to make that decision. Our charter today currently says that the chief of police is appointed by the police commission and any change to that method of the chief of police being appointed would in fact require the charter to be changed, but Kauai could make that decision for themselves as each of the other three counties would be able ~to make the decision for themselves as they saw fit. For the newer councilmembers, you know, you probably have come onboard in a time when the stock market and real estate market has been performing poorly and so the EUTF trust fund was not doing well. However, there was a_prior statute that said that any earnings over 8% could be skimmed off the top of the retirement fund and returned to the state general fund and to the counties to reduce the contributions that they had to make and in good real estate markets and upstart markets, then money was diverted or skimmed off the top of the retirement fund and put back into general fund use as 8% was deemed to be an adequate or appropriate contribution. So if any of you saw the newspaper this morning, there's articles about the fund now having real good performances over the first three quarters of the year, however, still falhng short of the fully funded mandate and so this bill did start out in HSAC and HCOM as adding one county representative onto the board. As things happen in conference and can change in the conference committee, that bill was morphed into this bill, but I do think that what this bill will now say to all of the county and state employees is that, you know, your pension or your trust fund moneys are now protected within the fund and this will help ensure that both the state and counties are making adequate progress to make sure that the fund is, you know, fully... fully funded so that the benefits that the employees have accrued will be able to be paid. Chair Asing: councilmembers, any questions? BC, Videographer: (Inaudible) check your mike. COUNCIL MEETING. - 4 - • May 12, 2010 Chair Asing: I'm sorry, councilmembers, any questions? Councilmember Furfaro and then Councilmember Bynum. Mr. Furfaro: Yes. Gentlemen, thank you very much, and thank you so much for recognizing Councilman Kawakami. I too think he did an outstanding job for us as being our liaison person at the legislature. If you could, dust clarify a little bit more for me the outcome of the county-appointed individual that will be...I mean how... Mr. Kouchi: It was removed. Mr. Furfaro: Oh, it was removed. Mr. Kouchi: That's why I said in conference committee, the title was appropriate relating to the EUTF. But instead of being a bill about adding one county representative, it wound up now changing where it addressed how the votes were counted, how many people could vote and be a quorum, and then not allowing the transfer of funds to go out of the pension fund. And I do need to state besides Derek, you know, each one of the other six councilmembers had numerous questions and especially where it relates to the TAT bills, also had individual testimonies sent up and you know, each of the councilmembers were very engaged and called the people that they could call. It also helped to have Representative Sagum, who's a member of the Finance Committee on the House side as well. You know, he was a big help. Mina Morita, while not a member of the Finance Committee, was supportive of retaining the county portion of the TAT from day one and then certainly on the Senate side our Senator Gary Hooser also said from the very first meeting that, you know, we could count on his vote to be in favor of retaining the full portion of the TAT to the counties and having been a former councilmember for two terms understood, you know, what that impact would be on the county budget. So, you know, we really had great support from the whole Kauai delegation. Mr. Furfaro: Well, thank you for that continued explanation of all the acknowledgements, but I did want to point out Mr. Kawakami's role rather than have seven of us speaking. It would be better that the six of us channeled or used one conduit and he provided himself to be a very effective conduit. I'm sorry I misunderstood the portion--about the council representative. I_did_hear_the-other parts as to certain conditions that were put on the fund to manage it, but thank you for that clarification. And Ron, thank you, and Jimmy, thank you very much for all you did and certainly want to acknowledge Mr. Tokioka who is sitting behind you today as well. Thank you. Chair Asing: With that, Councilmember Bynum. Mr. Bynum: Mr. Chair, this is questions about anything on this list? Chair Asing: Yes. Mr. Bynum: Okay. First of all, I want to say, good morning, James and Ron, and thank you very much for your diligent work on behalf of the county. I think it was...you know, we really needed it, particularly this year. We need it every year and I felt like our whole team did a really great job, including Councilmember Kawakami and to see Jimmy here this morning is... thank you very much, Jimmy, for your advocacy on behalf of the counties. I know being a former COUNCIL MEETING • - 5 - • May 12, 2010 councilmember that you have a real sensitivity to those issues and it's very much appreciated. To the questions, the...related to the police chief, that's an HCOM proposal, right? The council did not take a position on that. Mr. Kouchi: No, they didn't. Mr. Bynum: And although you accurately, you know, informed the public and all of us that this doesn't change it for the county, but it does remove an obstacle that in the state law, as I...if I understand it correctly, and allows the charter commission or the mayor or whoever to place that before the Kauai voters. Is that correct? Do I have that right? Mr. Kouchi: Yes. Mr. Bynum: Okay, so it'll be interesting to see what happens. I believe there was also a similar move for fire chief, planning director, and other... other department heads. Mr. Kouchi: And... and the personnel director. This is the only one of the four bills that passed. Mr. Bynum: And so the other ones didn't. Mr. Kouchi: No. Mr. Bynum: And they were separate bills. They weren't... Mr. Kouchi: Yes. Mr. Bynum: Okay. And then re...just regarding to EUTF, I think this is not what we were seeking initially but still a good outcome in terms of, you know, not having this practice of skimming. So it eliminates that practice into the future. So if the economy is doing well and the investments on behalf of retirees are doing well, they get to keep that in the fund because, you know, we all know that stock markets go up and down, and so to have a thing that says when it's doing well we'll take those funds out, you know, but when it's doing poorly, you take the hit, right. So, I didn't know that this bill had morphed and I...but I think that's still a very good outcome for state and county retirees. Last question is about the land use bill. I followed this a little bit, but I...just maybe from your perspective, what implications that has for the county to shorten that period of time? Mr. Kouchi: Well, I think the most important thing to remember is that both the council and the mayor did not want to see the loss of home rule and state or statutory legislation passed that would weaken the current county's housing policies for each of the counties. So much like how the EUTF bill morphed from a county representative to how they call quorums, how they cast votes and prohibits the skimming, this bill started out as the bill that was going to weaken the affordable housing policies of the counties and eventually came out by saying that you need to do a better fast-tracking of dedication of infrastructure to affordable housing. I think each one of you at the table and the mayor had said that you would like to do everything you can to expedite permitting and especially for affordable housing for our residents here. So I think the statute is now holding your feet to the fire, assisting you in helping live up to that commitment and if it can be done, then it will result in a good outcome for Kauai. But more importantly, at least it did not attack the county policy that was intact and leaves that decision making with the county. COUNCIL MEETING. - 6 - • May 12, 2010 Mr. Bynum: So this is that bill... Mr. Kouchi: Yes. Mr. Bynum: ...that morphed and... Mr. Kouchi: Correct. Mr. Bynum: ...I know earlier the council asked that you track it and pay attention even though we didn't take a position. Mr. Kouchi: And that's why it's on the report. Mr. Bynum: Right and I appreciate that because, you know, that's the frightening thing from the...from -I'll own it - my perspective that the legislature, we would hope, would and often does help the counties. But, you know, the fear this year regarding the TAT and this bill which basically in its original form said counties, whatever your housing policy is, we're going to override that and it wasn't even tailored to each county because each county has a different proposal. And so that was really scary and from a home rule perspective, I know when representatives get a call from me it's usually about home rule issues and I appreciate the support that we've gotten from our Kauai delegation for those home rule issues, so. I...very interesting, so thank you very much. Chair Asing: Thank you. Any other questions, councilmembers? If not, I...I'm sorry, go ahead. Mr. Kawakami: Sure. Chair Asing: Councilmember Kawakami. Mr. Kawakami: No, I just...you know, I want to...I want to just say thank you very much, yeah, for all the help, helping to navigate when I go up there because as much praise as you guys like to sing, the credit is all of yours, it's not mine and it's...it's theirs because it's like a labyrinth too, yeah, going up. But, you know, the role that they play and our state representatives play, it's an art and a science, and the art side is... is almost the side that cannot be taught, to be able to see the unseen, to be able to hear what's not being said, and to be able to act appropriately to capitalize on opportunity as it presents itself and to be able to go with the ebb and flow of the tide of the state legislature. And, you know, Rep. Tokioka, all our reps, our senator up there, they fought hard for the county, and I just want to say thank you so much, yeah, for your support. Mr. Kouchi: Mr. Chairman, I guess if you were wrapping up, I was focused on the what happened, and the last thing that I was going to report, especially on the most important item of the TAT, and Tim and I had an interesting discussion on this on Monday, but I did tell him while, you know, everybody was making their best effort to educate, you know, our residents about how important the TAT is to the counties and what function it plays to the county's budget and the partnership between the county and the state, and how the counties receive their funding and, you know, what it would mean to the taxpayers if it was lost, and what the additional real property tax cost would be, I did tell him candidly and on the neighbor islands, you know, the message resonates and many of the senators and representatives from the neighbor islands have, like Representative Tokioka, they've served on their respective county councils. But if you look at the votes in COUNCIL MEETING • - 7 - • May 12, 2010 the Senate and the House, most of the no votes against the counties retaining the TAT intact were all no votes from Honolulu. And the amount of the TAT as a percentage of the overall city budget is very minimal and so, you know, it was really a good effort by the neighbor island representatives and senators to convince their colleagues and they've made some tough choices on raising some taxes so that, you know, the counties would be left intact. But the job for next year's preservation of TAT begins today or actually, you know, the Friday after the legislature adjourned. There was a good article about what was going on by Richard Borreca in today's Star Bulletin editorial section on kicking the can. And unfortunately, you know, in trying to mitigate the impact on, you know, each taxpayer in this state, they did adopt that lag of the income tax and using some of the funds that are one-time deals, and so if our economy does not turn around between now and the next legislative session, they're going to be right back at the table looking at how they're going to make up for that money that is not available because that income tax refund lag will not be available, that rainy day fund money has been used and will not be available to be used, and so, you know, you really need to use the interim as an opportunity to try and again continue educating. But I will tell you, Mayor Carvalho had a special run of kulolo made and delivered to both money committee chairs because he found out that they like kulolo, you know, found out about Hamura saimin and so I personally delivered Hamura saimin to committees, and we've had Derek bring up poi and you know, other kind of things. James is always stopping to bring things and, you know, but just to have doors open so we're able to carry on that discussion and I know we've already talked with Councilmember Kawakami about how we could start setting up some opportunities to meet with members of the legislature to already start talking about what the county's needs are going to be for next year and, you know, for those of you at home, you know, let our delegation know how grateful we are so that you put them in the box to make sure that they continue to be great supporters of keeping the TAT for the counties. Chair Asing: Thank you. With that, Councilmember Furfaro. Mr. Furfaro: Yes, Ron, thank you for bringing that up and I had asked, going_forward, that we put together a county resolution of gratitude to the legislature on the TAT and that will be coming up shortly. But as you pointed out, that ratio of City and County of Honolulu allocation, ours is the largest of all as it relates to our total operating budget, ours is almost 8.5%, so your comments are very much appreciated and I did want to point out that we will be acknowledging a resolution thanking them as it relates to our operating budget. Thank you. Chair Asing: Yes, go ahead. Mr. Pacopac: I just wanted also, before you end, one of the groups that I haven't mentioned that was very instrumental in helping us also was the administration. We had many of their people come up and testify and they were very supportive dust as the council was, you know, and I think it was...for me, working with a group of the council and the administration was much easier than I thought it was going to be because I've worked in this situation before and I tell you when I have to fight with council and administration to agree on what we're going to do at the leg., this session was a boy. We had a lot of support from the mayor, administration and then also with Derek and you folks. So it makes our job much easier if you guys are all in tune together. I just wanted to make sure I brought that up for you. COUNCIL MEETING • - 8 - • May 12, 2010 Chair Asing: Thank you. Any other? Go ahead, Councilmember Bynum. Mr. Bynum: Yeah and I just really appreciate your last comments, Ron, and yours, James, because, you know, I think that collectively the neighbor islands and particularly the mayors were very effective in educating the public about and in my view, you know, the county's entitlement to a share of the TAT. You know, I know it's tempting because the legislature can take it, they have that ability, but, you know, we host visitors at a very high percentage on Kauai and not only as a percentage of our budget is the highest, but I believe we're the highest in terms of percentage of visitors that are de facto population on any given day, and so it's very encouraging to me that the general public, the Honolulu Advertiser, you know, got it and basically...you know, I think two or three years ago nobody knew what the TAT was and now there's a pretty high level of knowledge and understanding at least here on Kauai about how critical that is. So, I concur with you totally that this was a really good team effort and there was a lot...over a two-year period educating people and, you know, making it clear. And I...I remember the Honolulu Advertiser I think said, you know, this is like passing the buck, right, and you know, that's... so, thank you again for your efforts. Chair Asing: Thank you. Any other questions, councilmembers, or comments? If not, what I'd like to do is just thank you very much for all the work that you've done. Excellent, good job, can't thank you enough and from all the councilmembers and myself, mahalo. With that, what I'd like to do is I would first like to recognize... thank you, Ron and Jimmy...I'd like to recognize our newest staff member and I'd like the newest staff member to stand, Eddie Topenio, Jr., who is our new deputy county clerk. (Applause.) Chair Asing: And at this time what I'd like to do is call on our Representative Jimmy Tokioka. Jimmy, if you could come up please and as it relates to the agenda item, I'd like for Jimmy to make a few comments on any item that was covered--by our -representatives. Jimmy, first of all thank you very much for all the hard work that you do there for all of us. JAMES TOKIOKA, State Representative: Thank you, Chair Asing, and it's good to be here. I would say home, but it's a new building and it's a big beautiful building. So thank you for working with, you know, the delegation and I just want to echo some of the things that Mr. Pacopac and Kouchi said. You know, this was probably the hardest session and the hardest time in government for any elected official to be in government. And, you know, the training that I got here with, you know, Councilmember Kaneshiro, Chair Asing, and Chair Kouchi, and Member Furfaro were a good learning point for me. Having said that, you know the choices that we had to make this year were very, very difficult. I don't think if you asked anyone five years ago if you ever thought that the administration would be or government would be laying off or furloughing teachers 17 days a year, nobody would even think that it would be possible. You know, when I was sitting on the council, I never thought the taking of the TAT 100% of it would be possible, but it came down to the last hour. You know, up until the final hour of the session it was still in limbo, and so I'd like to echo a lot of the comments, and I know every single Councilmember who is sitting here right now called me and had discussions with me about the TAT. You know, I had to share some of the insight of how the process works up there and I think, you know, each and every one of you played a big part • COUNCIL MEETING - 9 - May 12, 2010 in that and so I thank you for that. I know Mr. Kouchi talked about Representative Sagum on the Finance Committee, you know, who did an outstanding job as well. (Inaudible) Chair of Energy and Environmental Protection Morita did an excellent job and our Senator Hooser as the majority leader. And I can't say it any better than Ron said about the make-up of the legislature. The neighbor island delegations were very, very strong as far as, you know, the impact it would mean to the county, so it is certainly true that for the Honolulu delegation it wasn't as big of an impact and sometimes when you see, you know, a body that you're turning money over to giving tax incentives and granting out money and not suffering the same type of pain that the legislature is going through, it's easy to say well, this is what we need to look at and I know two-and-a- hal£..two years ago, the Honolulu City Council did that. They did a permanent home use exemption and they knew at that time we were going to go into some tough times and there was some frustration of some of the people at the legislature that how could you be doing this when you know we're going to be laying off, furloughing people. So anyway, thank you all for doing that, and you know, a big push too by the mayors. They came the last week of session to talk to the legislature and to mention...to voice their concerns. So you know, the group as a whole did an excellent job lobbying for the money and you know, I'm sitting there as I'm listening to some of the things happen and I don't want people at home or any of you to get the wrong impression that, you know, the legislature thinks that people have to bow down to us. You know, I came from here. When we were in leadership meetings at the House, I keep getting reminded Rep. Tokioka, you're a representative now, you don't...you're not a councilmember anymore, but you know, I served here for 10 years. So I understand, you know, the concerns that you folks are going through and I will continue to try to be that voice if I'm fortunate enough to continue to be there for you folks because I know how important, you know, your jobs are and you know, the $11 million, $12 million hit to you would have been huge and to kind of...to fill that gap, you know, to raise property taxes, we're hurting the same people and that's certainly something that we didn't want to do. I know Chair Oshiro who is...of the Finance Committee, who is councilmember Chang's classmate, was very attuned to the... the concerns of the county. I know that when he's been here, every single one of you has mentioned your concerns to him, and I think that's the important part of dust understanding, you_know, the roles that all_of us play and communicating that to each other. So, Speaker Say, he took a tough position. I know I had a conference call with Chair Asing, councilmember Kawakami and councilmember Kaneshiro last session with the speaker and the other council delegations. Calvin Say said at that meeting, he said you know we're going to save it this year, which was last year, but next year we're going to have to take the TAT. And I know that wasn't accepted very well, but this year he said, you know, Jimmy, it's tough, we have to make tough decisions, but he supported the group. So I...I...I...we do want to give a big thank you to the Speaker. You know, as you folks know, each body does their own thing. The Senate works with their delegation and I'm just proud of what the House did to resolve some of the issues and I passed out or I emailed over a copy of the ways that the legislature on the House side dealt with the shortfall, the $1.2 billion shortfall, and I think the interesting thing to me is on page 4 when we were working with this budget that only 4.6% of the total $1.2 billion came in increases in fees and taxes because we raised the TAT last year, we raised personal income tax last year, so we tried to minimize that as possible, but if you look at the savings and the cuts, that's where a lot of the shortfall was made up on, whether it was vacant positions, whether it was lapses in budgetary spending, and it's just a good overview of what we had to deal with this year. COUNCIL MEETING • - 10 - • May 12, 2010 So having said that, I appreciate all of the input that you folks give to all of us and it does make a difference. It, you know, if the counties just rolled over and didn't say anything, I can almost assure you that the TAT would not have been there and I think the way that, of course, Chair Kawakami of the...or President Kawakami of HSAC handled it with his group, you know, was certainly a big key role as well, just, you know, with aloha but with a stern and strong position that, you know, we need the money, so thank you, Derek and every single one of you for making it happen. Chair Asing: Thank you very much. Councilmembers, any questions/comments? Councilmember Kaneshiro. Mr. Kaneshiro: Thank you, Chair. You know I just wanted to add this because we just completed our budget, part of our budget sessions on Monday, Jimmy, and some of the comments that came out of the paper is that, you know, we kind of did not let the gorilla out, and what they were referring to really was during an election year, it's really probably not a good time to do any real property tax increases. The truth is...is that because of the legislative body that we had there representing the County of Kauai, was really the ones that helped us to lock that gorilla up for another year or so and that's in regards to the TAT tax. Because I can tell you right now for a fact that if that wasn't retained by the counties, the gorilla would have been out running around the islands, so and you know, I just wanted to make that clear because when you look and you read the paper sometimes the Garden Island writes things and they say well, you know, people don't really like to raise taxes during an election year. The fact is, man, that would ha...we would have no choice, you know, and I gotta thank you guys. I gotta thank you, Roland, Mina, Gary for really fighting hard for us because it was a really hard time for us to be able to come up and make decisions, but with what you've done, you made it easy for all the people of Kauai and the real credit gotta go to you guys so they can see that... that you were the ones who really helped us to save the tax burden to the, you know, to our people. So I needed to point that out because it's just a reflection of the good work that you guys are doing for us. Thank you so much again. Mr. Tokioka: Thank you, Daryl. Oh, I'm sorry. Go ahead. Chair Asing: Thank you. Councilmember Furfaro. Mr. Furfaro: Yes, Kimo, Jimmy, Representative Tokioka. Mr. Tokioka: All kind aliases. Mr. Furfaro: That was when you was a young kamali`i, you know, so. Mr. Tokioka: I was a busboy when Jay Furfaro...I wasn't even a busboy and Jay Furfaro hired me as a busboy. Mr. Furfaro: Well, you soon became a management trainee and you're doing a fine job at managing our state's business. Thank you. Let me ask, Jimmy, first of all, thank you and the whole legislative team. But could you dust give us a real quick...we ended the legislative session with the $67 million coming from the hurricane fund earmarked for the school...the teachers. Mr. Tokioka: Furloughs. COUNCIL MEETING • - 11 - • May 12, 2010 Mr. Furfaro: Am I correct? And how has all of that fallen into place for next year, Jim. Mr. Tokioka: Well, now it's on the desk of the Governor and you know, she needs to...to make her choices. You know, we heard from many people and you have many people in this office as well that continuously emailed us and called us up about ending the furlough days and you know, just for the record, it wasn't the legislature who agreed to the 17 furlough days, but you know that agreement happened after the legislature closed last year. What we did this year is we had to find additional funding which was the $64 million that we appropriated to end it from the hurricane fund. So, at this point it's with the Governor and I know that's one of the many things that people should be and I hope are calling the Governor and the administration about resolving. Mr. Furfaro: I guess that's where I was going with that question, so that you know, those in the audience can also... and now she would have until July 6? What is her timetable now to either veto that bill or just let it go unsigned or? Mr. Tokioka: I think it's July 6. She has 45 days. Mr. Furfaro: It is July 6, right? Mr. Tokioka: Yeah. Mr. Furfaro: So it is important that we resolve that and we have some time to continue to send that message out. . Mr. Tokioka: Yes and what I will do is I will email the link to the administration's email account so that if the council wants to email them and/or the general public, you'll have that information to get in touch with the Governor and I don't say that in any disrespect. I think the more people get involved and especially if it's names that you know and people that you know and people that you've talked to and I know she's spoken to many people as she's been here, especially a group like yourselves, who, you know, touch a lot of people's lives, so I'll get that...that link to you folks and you can... Mr. Furfaro: I'd appreciate it. I just wanted to get the timeline correct and... Mr. Tokioka: Yes. Mr. Furfaro: I think it is July 6, so and again, thank you and to the legislative team for your work this year. Mr. Tokioka: And I... and I can't tell you enough about the team, as you say, Jay, because the four of us, although we come from different places, we have different views on different things, we know how important it is to work collectively together for... for all of the people of Kauai, so it's a great honor for me to serve on that team. Mr. Furfaro: Well, thank you again. Chair Asing: Thank you. Any other comments? Councilmember Bynum. COUNCIL MEETING • - 12 - • May 12, 2010 Mr. Bynum: Yes, real quickly, Jimmy, I wanted to just thank you for being available and all of the support and information you've provided me. You know I watched you on council prior to being on this council and I really appreciated the work you did here and the way you, you know, handled yourself in treating people with respect and I want to point out one thing that's in your budget and that you also, I know, helped with this year that the legislature restored funding for Child Welfare and Child Support Enforcement positions. There was a proposal to eliminate every single one on Kauai and you know, we were...you were here for hearings, heard from the community how difficult that was and I appreciate your... and the House's leadership at restoring those positions and bringzng...yeah...to deal with those issues in a more systematic and appropriate way, so thank you for that. Mr. Tokioka: Thank you, Councilmember Bynum, and you know, we do have to thank Representative Mizuno, who is the Chair of Health and Human Services and Suzanne Chun... Senator Chun-Oakland from the Senate, who were very involved in that and we ~ust...I think the people who had been following that issue know how frustrated, you know, we all were and the bill was passed and right now it's going to be a pilot project on Oahu and I did on the floor of the House on (inaudible) extend my appreciation to the representatives and senators from Oahu because it's not going to affect any office on the neighbor island, but they are going to look at a pilot project on Oahu. So some of the offices may be downsized or cut on Oahu and the Oahu delegation recognized that and they stepped up to the table and you know, they know that we have to look at, you know, how we manage the system, but to do it the way that it was proposed with the EPOD system was absolutely wrong in my mind anyway and many others. And thank you for, you know, all of you for talking to us and sharing your concerns with that issue. Chair Asing: Any other questions or comments, councilmembers? Councilmember Kawahara. Ms. Kawahara: Thank you, Chair. Representative Tokioka, I just wanted to thank you for all your work personally and also for being available for phone calls at any time I had questions and also for your willingness to answer them frankly and honestly and you know, tell me about the environment that you're working in. So I really appreciate that and thank you also to Mr. Kouchi and Mr. James Pacopac for all their work and the updates. But I know it was really hard this year. So I think a big thanks is owed to you, thanks. Mr. Tokioka: Thank you, Councilmember Kawahara. Chair Asing: Any other comments, councilmembers? Councilmember Kawakami. Mr. Kawakami: Yeah, along with thanking Rep. Tokioka and Rep. Morita, Rep. Sagum and Senator Hooser, I'd like to also recognize and I always call her our fourth Representative... Kaua`i's 4th Representative but Representative Har also, you know, she had a very open door for the neighbor island counties, especially Kauai County. In fact, she played a pivotal role and I believe it was Rep. Sagum had a resolution for DLNR to do and conduct studies for the Salt Pond area and she was very supportive of that. In fact, she was very supportive of an amendment to include the salt makers to be involved in that discussion, so it was one of the meetings that I dust happened to walk in on while I was making my rounds up at the leg. and I was just very pleased to see how supportive she is of COUNCIL MEETING • - 13 - • May 12, 2010 Kauai. So, I think appropriate recognition is due for Rep. Har, who is from the Westside of Oahu representing Kapolei and the Royal Kunia area. So, mahalo Rep. Har. Chair Asing: Thank you. Any other questions/comments? If not... Mr. Tokioka: Chair... Chair Asing: Representative Tokioka, thank you, big aloha. Mr. Tokioka: Thank you, Chair. It's always a pleasure... Chair Asing: Mahalo. Mr. Tokioka: to be here with you folks. Thank you. Chair Asing: I'd like to just make one comment in closing. We talk about the TAT. What people don't fully, fully, really understand, the TAT represents between $12 and $16 million a year. The way the bill was structured, it was structured that we would lose it for at least a minimum of five years. So, we would not have between $12 and $16 million for at least a minimum of five years. So it's not losing one time, one year, $12 to $16 million. It's five years and possibly more. So that is what is so very, very important to realize that point. With that, the meeting is now called back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: Can we have a motion...I'm sorry. We have members of the public who want to testify. Mr. Taylor, my apologies. There being no objection, the rules were suspended. KEN TAYLOR: Chair and members of the council, my name is Ken Taylor. It's been a_ rough year for those folks that were on the floor at the state house and I certainly appreciate the work they've done and the team of individuals that has represented Kauai, but I think the most important thing that was said here today because...this year we've squeaked by; we've squeaked by. The most important comment that I heard this morning from Ron, if the economy doesn't get better, all of this is going to be back on the floor next year. We've picked...we've picked from pockets of dollars stuck here and there that has made it possible to move forward this year. But I think...I think all of us have to realize that it's very unlikely that the economy's going to be any better next year or the year after and it's imperative that you folks and the administration keep this in mind and start working today on what we need to do to solve these problems next year because you can count on them being back and it's unfortunate, but that's the life of the world economy and there's nothing on the horizon that shows that it's going to be any better. And so it's imperative today to start working for tomorrow and how are we going to adjust to these problems next year. And I think that's the most important thing that's going to be required of everybody through this next year and the year after and the year after that. But I hope as we move forward that we keep that in mind and really start doing the work that's necessary today so that we'll be able to better deal with these problems next year. Thank you. Chair Asing: Thank you. Is there anyone else who wants to speak on this item? If not, I'd like to call the meeting back to order. COUNCIL MEETING • - 14 - • May 12, 2010 There being no one else wishing to speak on this item, the meeting was called back to order, and proceeded as follows: Chair Asing: Can we have a motion to receive, please? Mr. Furfaro: Move to receive. Mr. Chang: Second it. Chair Asing: Any discussion? All those in favor say, aye. Mr. Furfaro moved to receive C 2010-22 for the record, seconded by 1VIr. Chang, and unanimously carried. Chair Asing: Can we have the next item please. Mr. Nakamura: Council Chair, the next items on page 1 of the council's agenda are communications for receipt, communication C 2010-119, C 2010-120, and C 2010-121. . C 2010-119 Communication (04/12/2010) from the Purchasing Division, Department of Finance, transmitting for Council information, the Fiscal Year 2009- 2010 Third Quarter Statement of Equipment Purchases: Mr. Bynum moved to receive C 2010-119 for the record, seconded by Mr. Kaneshiro, and unanimously carried. C 2010-120 Communication (04/30/2010) from the Director of Finance, transmitting to the Council supplemental information pertaining to the estimated reduction in real property tax revenues based on the real property tax assessment certification for the Fiscal Year 2009-2010: Mr. Bynum moved to receive C 2010-120 for the record, seconded by Mr. Kaneshiro, and unanimously carried. C 2010-121 Certification (04/30/2010) of the 2010 Real Property Assessment List within the County of Kauai by the Director of Finance: Mr. Bynum moved to receive C 2010-121 for the record, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: On the bottom of page 1 of the council's agenda, communication C 2010-123 for approval. C 2010-123 Communication (04/20/2010) from the Executive on Transportation, requesting Council approval to apply for, receive, indemnify, and expend FY 2009 and FY 2010 Federal Transit Administration (FTA) Section 5309 grants relating to capital expenses for the County Transportation Agency in the amounts of $632,833 and $1,139,300 respectively: Mr. Furfaro moved to approve C 2010-123, seconded by Mr. Chang. Chair Asing: Any discussion? Mr. Furfaro: Mr. Chair... Chair Asing: Yes. COUNCIL MEETING ~ - 15 - ~ May 12, 2010 Mr. Furfaro: I would like to make a note here. It's, you know...certainly to expand an effective and complete fleet, but I do want to make note and I want to thank my colleagues as well, although we did not expand the bus in this recent budget, I do want to point out and it might have been an oversight in the media, that we did reinstate the current levels that we had to the tune of $171,000.00. So hopefully again with these additional grants, we can find ourselves with the appropriate equipment to continue to manage expenses and therefore I just wanted to acknowledge why I'm supporting this piece. Thank you. Chair Asing: Thank you. Any further discussion? If not, all those in favor, say, aye. The motion to approve C 2010-123 was then put, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matter for approval on the top of page 2 of the council's agenda is communication C 2010-124 C 2010-124 Communication (04/23/2010) from the County Engineer, requesting Council approval to accept and expend a legislative appropriation • (Act 162 SLH 2009) in the amount of $950,000 for plans and construction of the Wailua Emergency Bypass Road project. The approximate cost of this project is $1,900,000 of which the County's participating match is $950,000: Mr. Furfaro moved to approve C 2010-124, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? All right. Let's hang on. I'd like to suspend the rules. There being no objection, the rules were suspended. Chair Asing: Glenn. GLENN MICKENS: Thank you, Kaipo, for the record Glenn Mickens. Just a question, is this...the paving of this bypass road, is.__this going_ to be a permanent bypass road or is it going to still be just for emergency purposes only? Chair Asing: For emergency purposes only. Mr. Mickens: Only, there's no plans for making it a... Chair Asing: Not at this time. Mr. Mickens: ...alternate road like the Kapa`a Bypass is. Chair Asing: Not at this time. Mr. Mickens: So that million nine-hundred thousand is just to repave...to pave the road. I mean, I guess it's, what is it, dirt at this stage of the game? It's not... Chair Asing: Yes, they...just to do some work so that it can be used to travel. Mr. Mickens: And will it be able to be opened every time there is a wreck or anything on Kuhio Highway? I know there's been many, many problems COUNCIL MEETING ~ - 16 - ~ May 12, 2010 in the past. I heard that it goes through Hawaiian Homelands and when I last asked they said well, they've got the key to the gate and they couldn't get it open. Little things like that, I just wondered if it's going to be, you know, completely accessible to the public so when the traffic is...wreck on Kuhio Highway, it will be open. That's all. Chair Asing: Okay, thank you. Mr. Mickens: Thank you. Chair Asing: Is there anyone else? If not, I'd like to call the meeting back to order and with that Councilmember Kaneshiro. There being no one else wishing to speak on this item, the meeting was called back to order, and proceeded as follows: Mr. Kaneshiro: Yeah, thank you, Chair. I dust wanted to make some comment with the questions, and basically, yes, Mr. Speaker or Mr. Mickens, that these... amount is not only for fixing the road, but it's also for fixing the shoulders; you have guardrails you need to put in. There's many other items that need to go in besides just fixing the road or paving part of the road to make it safe so in case of an accident and such where the roads are shut down for awhile, this , would be used as a bypass road to bypass the congested area. So this is the purpose of this money that we have here before us. Chair Asing: Thank you. Any further discussion? If not, all those in favor say, aye. The motion to approve C 2010-124 was then put, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matter for approval is communication C 2010-125. C 2010-125 Communication- (04/27/2010) from the Prosecuting Attorney, requesting Council approval to apply for, receive, and expend the State of Hawaii Department of Transportation Highway Safety Grant of $14,440.00, to be used for travel, training and equipment: Mr. Furfaro moved to approve C 2010-125, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matter for approval is communication C 2010-126. C 2010-126 Communication (05/04/2010) from the Director of Housing, requesting Council approval: (1) to acquire three (3) pending real-estate owned residences (REOs) situated at: (1) 4421 Kai Ikena Drive, Kalaheo, Hawaii, Tax Map Key (4) 2-3-021- 011; (2) 3599 Horita Road, Lawa`i, Hawaii, Tax Map Key (4) 2-5-010-012; and (3) 131 Kahiko Street, Kapa`a, Hawaii, Tax Map Key (4) 4-2-016-032, under the County's Neighborhood Stabilization (NSP) Program Foreclosure Acquisition, Rehabilitation and Resale Project with funds COUNCIL MEETING ~ - 17 - ~ May 12, 2010 received from the State in July 2009 at contracted offer prices not to exceed $450,000 and subject to the one-percent (1%) discount based on receipt of the appraisal. (2) to increase the acquisition price for 3874 Hunakai Street, Lihu`e, Hawaii, Tax Map Key (4) 3-3-008-019 to $413,000, subject to the one-percent (1%) discount based on receipt of the appraisal. (Previously approved by Council in communication C 2010-113, for X399,000.) (3) to authorize the County Clerk to sign any and all legal documents relating to the above. Mr. Furfaro moved to approve C 2010-126, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matter for approval at the bottom of page 2 is a Legal Document transmitted by communication C 2010-127. LEGAL DOCUMENT: C 2010-127 Communication (04/30/2010) from the Administrative Assistant, requesting Council authority to execute a contract (right-of--entry agreement) between the County and Princeville Mauka Village LLC ("Princeville Mauka") to secure an area for the Department of Public Works, Solid Waste Division's recycling bins on TMK (4) 5-3-01:02 and to indemnify Princeville Mauka for any claims from the County's operations. • Right-of--Entry Agreement by and between Princeville Mauka Village, LLC (Grantor) and County of Kauai (Grantee) for a right to use a portion of its property situated in Princeville at Hanalei, District of Kalihiwai, Kauai, Hawaii identified as a portion of tax may key number (4) 5-3-01:02 subject to terms and conditions. Chair Asing: Can I have a... Mr. Chang moved to approve the Right-of Entry Agreement attached to communication C 2010-127, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Mr. Furfaro: Mr. Chair... Chair Asing: Yes, go ahead. Mr. Furfaro: This just might be something for the legal department to look into. This actually might be in the district of Kalihikai, not Kalihiwai. Just...just... Chair Asing: Why don't we send a communication to that effect, to have it corrected... Mr. Furfaro: If they could just double check. Chair Asing: if in fact it is an error. COUNCIL MEETING ~ - 18 - ~ May 12, 2010 Mr. Furfaro: Yes. Chair Asing: Thank you. Any further discussion? If not, all those in favor say, aye. The motion to approve the Right-of--Entry Agreement attached to communication C 2010-127 was then put, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matter on the top of page 3 are claims, communication C 2010-128, which is a claim filed against the county by Farmers Insurance Hawaii, subrogee for the Estate of Bergonia Bienvenido, and communication C 2010-129, which is a claim filed against the county by Janet Ito. CLAIMS: C 2010-128 Communication (04/23/2010) from the County Clerk, transmitting a claim filed against the County of Kauai by Farmers Insurance Hawaii, subrogee for The Estate of Bergonia Bienvenido, for vehicle damage, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2010-128 to the Office of the County Attorney for disposition and/or refer back to the Council, seconded by Mr. Bynum, and unanimously carried. C 2010-129 Communication (04/28/2010) from the County Clerk, transmitting a claim filed against the County of Kauai by Janet Ito for vehicle damage, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2010-129 to the Office of the County Attorney for disposition and/or refer back to the Council, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matter for approval are Committee Reports. From your committee on Parks/Transportation, committee report CR-PKT 2010-02. COMMITTEE REPORTS: PARKS/TRANSPORTATION COMMITTEE REPORT: A report (No. CR-PKT 2010-02) submitted by the Parks/Transportation Committee, recommending that the following be approved as amended: "Bill No. 2354 - A BILL FOR AN ORDINANCE TO AMEND SECTION 19-1.3 AND SECTION 19-1.4 OF THE KAUAI COUNTY CODE 1987, AS AMENDED RELATING TO PARKS AND RECREATION," Mr. Furfaro moved for approval of the report, seconded by Mr. Kaneshiro, and unanimously carried. (See later for Bill No. 2354, Draft 1) Chair Asing: Next item please. Mr. Nakamura: Next committee report for approval from your committee on planning, committee report CR-PL 2010-10. • COUNCIL MEETING - 19 - May 12, 2010 PLANNING COMMITTEE REPORT: A report (No. CR-PL 2010-10) submitted by the Planning Committee, recommending that the following be approved as amended: "Bill No. 2339 - A BILL FOR AN ORDINANCE AMENDING ARTICLE 8 OF CHAPTER 8 OF THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO DEVELOPMENT STANDARDS IN THE OPEN DISTRICT," Mr. Furfaro moved for approval of the report, seconded by Mr. Kaneshiro, and unanimously carried. (See later for Bill No. 2339, Draft 1) Chair Asing: Let's take a short recess. . There being no objection, the meeting was recessed at 10:10 a.m. The meeting was called back to order at 10:29 a.m., and proceeded as follows: Chair Asing: The council meeting is now called back to order. With that, Mr. Clerk, can we have the next item please? Mr. Nakamura: Council Chair, next matter... next matters are Bills For Second Reading on page 3 of the council's agenda. First bill for second reading is Bill No. 2339, Draft 1. BILLS FOR SECOND READING: Bill No. 2339, Draft 1 - A BILL FOR AN ORDINANCE AMENDING ARTICLE 8 OF CHAPTER 8 OF THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO DEVELOPMENT STANDARDS IN THE OPEN DISTRICT Mr. Furfaro: Move to approve. Mr. Kaneshiro: Hold on, hold on. Mr. Bynum: Second. Chair Asing: Hang on, please. Councilmember Kaneshiro first. Mr. Kaneshiro: Mr. Chair, I have a circulation or a memorandum that I want to be excused or recuse myself from this Open District amendment as possible conflict of interest because I do have land that contains open district. Mr. Kaneshiro promptly left the meeting before any discussion on this item and was noted as recused. Chair Asing: Thank you. With that, can I have a motion to approve? Mr. Furfaro moved to adopt Bill No. 2339, Draft 1 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Bynum. Chair Asing: Any discussion? Councilmember Bynum. COUNCIL MEETING ~ - 20 - • May 12, 2010 Mr. Bynum: Yeah, I'll...this is a bill that changes the density in the Open Space on agricultural land. It came from the administration. It was first contemplated in the General Plan and I wanted to just bring the attention...our attention to the map that's on the back wall here, which is the area of the island from Kealia to the North Shore. During the co...you know, I believe that it's accurate that at this time we're the last county in the State of Hawaii that allows subdivision of agricultural lands for de facto residential where very little agriculture occurs. And the General Plan anticipated us passing this bill that I hope passes today. But the...currently in this area of the island, the orange on this map is agricultural land that's divided into CPRs. The yellow parcels are subdivided agricultural land with less than 15 acres...parcels less than 15 acres. There are 1,895 parcels on this map that are CPR'd and 1,445 ag parcels or agricultural subdivided lots that are less than 15 acres and I think that the concern in the General Plan was that we were using agricultural land for residential purposes without really having a requirement that agriculture be done and that it would impact prime agricultural land and eventually...but also put development onto large lots that, you know, are not really... no longer affordable for working people who live on Kauai. You know, if you...you know, in 2000 there soli were these parcels available that working class people and, you know, middle income people could afford, but that ship has sailed. And so this bill is a very important part of addressing that issue. It reduces the density bonus that...in the Open District. But it's, I believe in my opinion, not the only step that needs to be taken. There's been a discussion at this council for many years about density and use, and we have yet to address the issue of use that when you subdivide agricultural land, there should be...it should be demonstrated that it's for agricultural use. So there may be future bills in the future to help, I think, fully close this loophole in our planning process. So... and I'm going to be in support of this bill today, so thank you very much for that opportunity. Chair Asing: Thank you, any other discussion? Go ahead, Councilmember Furfaro. Mr. Furfaro: Yes, I appreciate the map being up there, but I do also want to point out that, you know, Kilauea Sugar closed in August of 1973. The areas in Kilauea identified in this map, as well as 1978 areas identified within the Princeville Ag area, these were things that -happened in 1976 and 1978, so it is a long time coming. And as a member of the General Plan in this decade, it is something that was put on the radar screen to address and what we're addressing here is open districts will be treated as ag districts when it comes to what Mr. Bynum referred to as the density bonus. This was a very interesting and longly (sic) debated item in the General Plan. It is something that is in the General Plan, the 2000 General Plan, and unfortunately we've got a lot of work yet to do because it all was subject to approval under the real estate commission, which has controls over the CPRs and not our local zoning. What will help us as we go forward in local zoning would be dealing with use, as Mr. Bynum pointed out, versus zoning densities. I would also like to point out in this bill and thank you to the county attorney's office, we have some preliminary definitions that would work where those that were in process and had preliminary subdivision approvals for this zoning change, the line was, you might say, drawn in the sand going forward, so this is about items that go forward, and as I said I served on the General Plan when this was suggested. It came from Mayor Baptiste's office and later from Mayor Carvalho's office, and I will be supporting these district changes, but again, you know, these are items that go back almost 34 years. So, it's been another accomplishment in the General Plan and I will be supporting it. Thank you, Mr. Chair. COUNCIL MEETING • - 21 - • May 12, 2010 Chair Asing: Thank you. Any further discussion? Councilmember Kawahara. Ms. Kawahara: Thank you, Chair Asing. I'm very happy to support this bill and for the same reasons that Councilmembers Bynum and Furfaro have spoken about. It's been a long road to get here to do one of the items at least that the General Plan has asked to take away or reduce that density bonus, so I'm very happy to support this bill. Thank you. Chair Asing: Thank you. Any other discussion? If not, I would like to make a few comments. Before you put that map up, Steph, let me just make a few comments. Now, in reference to maybe...let me have the mike. In reference to the comment that was made about the 15 acres here in the yellow, it doesn't matter. It doesn't matter whether it's 15 acres or not because it still comes under state jurisdiction. You can say the county, yes, but the laws on 205 still stand. So you cannot take that away, so you should not be discarding the yellow and say 15 acres under county. State law still applies. So I want that clear. Could you put up the map, please? And I agree with all the things that was said by Councilmember Bynum and Councilmember Furfaro. What I want to show you is the real impact and the real impact, of course, was what Councilmember Furfaro talked about, and here's what the bill does. As an example, this is over 350 acres here, this is the Kulana subdivision here, and in the Kulana subdivision, there happens to be an area that is zoned open. The purple area here is the open area and because it's such a large area within the confines of the entire parcel, the bonuses that come out of that area is huge, huge in number and that is the reason these lots here were...were subdivided into approximately 20 subdivided lots. Then the CPR process got in and then if you see all of the CPR lots here, they total approximately 93. So, you have 93 units on this property here. Now, what you're really saying is that what this bill does is it takes away the bonus coming from this open area and treats this as though it was ag. And because of that, the estimate right now, I worked with the deputy planning director yesterday so that we can get some numbers, let's look at numbers approximately what we can do. It is not easy to work out. The formula is not simple and easy because you can take...you use .ratios and you can take these ratios and the developers are smarter than us. They find the loopholes; they know what to do; they know how to maximize things. So, they will take it and use the ratios to say this lot, I'll make it this size because I can get that many CPR units. This lot I'll do that size so I can make so many units. This one I'll do it smaller, this one larger, and they will work those formulas out. So that's what the smart people will do and that's the reason I say, be careful of what we do here because they will find the loopholes if we're not careful. So, the deputy and I worked on this yesterday and so what we're really saying is under today's rules, so to speak, the developer was able to get 93 units...lots...subthvided lots -that's not the right term, it's really units because it's CPR'd. So all we're saying is this parcel here, they used their ingenuity, creativity, and so this whole thing here amounted to approximately 93 units. Under the law that we're going to pass today, the maximum amount they can get is approximately 45. So you can see the reduction, 93 versus, we pass this, approximately 45 is the most they can squeeze out. But like I say, it's not that simple and easy to do. There's a lot of calculations that you can do on sizing the lots so you can maximize, but this bill will do that. I will be supporting this bill. It's a long time in coming. We tried many years ago, the votes were just not there. The developer, the brokers, the realtors put so much pressure on councils before that the votes was just not there. So, I'm dust pleased and happy these types of what I call motherhood and apple pie, it's simple, easy, do it, we should have done it a long COUNCIL MEETING • - 22 - • May 12, 2010 time ago, but it wasn't easy to get here. Times have changed and so I will be supporting the bill. Thank you. Chair Asing: With that I'd like to call the meeting back to order. Any further discussion? Yes, go ahead, Councilmember Furfaro. Mr. Furfaro: Yes, thank you, Mr. Chair, for referencing, you know, this goes back to 1973, closing of Kilauea Sugar, 1978 and it was just another item we can address that dealt with, you know, some of the things that came out of the General Plan. I just wanted to revisit again it basically makes the open district in the way of density the same cap as we have in the ag districts. And that's a mayor change. Chair Asing: Yes. Mr. Furfaro: So, thank you again. Chair Asing: Thank you. Any further discussion? Oh, I'm sorry, the rules are suspended. There being no objection, the rules were suspended. GLENN MICKENS: Thank you, Kaipo, for your presentation for informational purposes. I live right beside that Kulana development. It's been there for like seven years or more and it's just sitting. It's a real inconvenience to the people in that area. Maybe you can refresh me and the people as to when that thing is actually going to be... and you're saying that now that they can only have 45 units in there as opposed to the 92? Is that what I... Chair Asing: No, I did not say that. Mr. Furfaro: I can answer that. Chair Asing: Go ahead... Mr. Furfaro: If you don't mind, I'll answer. Chair Asing: Councilman Furfaro, yeah. Mr. Furfaro: This... Mr. Mickens: I'm sorry, I misunderstood you. Mr. Furfaro: This bill cannot go retroactive. This is going forward so that this would not happen to us where they got the double bonus that Mr. Asing mentioned or the bonus density that Mr. Bynum mentioned. Going forward, no projects that do not have preliminary subdivision approval can seek this. Mr. Mickens: So those people that bought those lots under the other old rules, you can't change those. Those are...those are... Chair Asing: No. Mr. Mickens: ...static. • • COUNCIL MEETING - 23 - May 12, 2010 Mr. Furfaro: Unfort... un... Mr. Mickens: But Mr. Asing, maybe you'd... do you have any idea when that subdivision will be finalized? When are they going to -ever finish it? There's a road going through there; there's Hauiki that comes around the other side. That's going to have to be ironed out, but the developer had to put that road, which is fine, it's a 20-foot road going through the subdivision, and you know, the people up there just continually wonder when, when and what is going to happen with that. Chair Asing: Let me just answer it this way, Glenn, you know, the developer was in there, is in there to make money, that's his job, his function. I don't have anything against him, that's his fob, that's his work, that's how he makes a living. It's up to us to put laws in place to prevent people from abusing the system. Now I want to also tell you that under our system presently, we have no control on the CPR portion. It is not the county's function. It is within the state's jurisdiction. So, that's why we need to be careful on what we do on what we allow knowing that they can do this additional piece. So we need to strengthen our portion and that is what the bill is trying to do today, strengthen our portion, so that they cannot abuse it. They've abused it; we fought it; and because it is a state function, it's very difficult for us. So, thank you. Mr. Mickens: But...but there is nothing that the county can do as far as mandating or anything, getting them to open that subdivision then, right? Chair Asing: It's possible. Go ahead, Councilmember Bynum. Mr. Bynum: Yeah, I just...I want to say... start by saying I agree with everything the Chair dust said. You know, this particular subdivision, like a number of situations on Kauai, is impacted by the change in the economy and there's a lot of complex issues that we can't go into, but the subdivision is done. The lines are drawn and you know, we can't undo that. It's very difficult for county government to try to undo what's already been done, and we have to be very careful because once you take a big chunk of land and divide it and draw lines and have separate ownerships, that virtually forever., that's gone. You can't...I mean, it's possible, but short of purchasing every lot, it's very difficult. So this is a step that was called for and it's... and there are others. Mr. Mickens: I understand that, Timmy, I understand exactly what you're saying, what Jay just pointed out, and what Kaipo...you're going forward. That's not the issue that I'm concerned about. Mr. Bynum: Right. Mr. Mickens: I'm just wondering whether or not anything can be done to mandate that they open up that thing in a certain length of time, seven years... Chair Asing: Glenn, not... not at this time. Mr. Mickens: Okay. Mr. Bynum: These are pretty complex issues, so. Chair Asing: Thank you. COUNCIL MEETING • - 24 - • May 12, 2010 Mr. Mickens: Okay, thank you, Kaipo. Chair Asing: Is there anyone else? If not, I'd like to call the meeting back to order. We have a motion to approve on the floor. Is there any further discussion? If not, all those...I'm sorry, roll call, please. The motion to adopt Bill No. 2339, Draft 1 on second and final reading was then put and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kawahara, Kawakami, Asing TOTAL - 6, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. RECUSED & NOT VOTING: Kaneshiro TOTAL - 1. Chair Asing: Can we have the next item, please? Thank you, Imai. ' Mr. Bynum: Thank you, Imai. (Inaudible.) Mr. Furfaro: Thank you, young man. Councilmember Kaneshiro was noted to have returned to the meeting at 10:51 a.m. Mr. Nakamura: Council Chair, my apologies, next bill for second reading is Bill No. 2354, Draft 1. Bill No. 2354, Draft 1 - A BILL FOR AN ORDINANCE TO AMEND SECTION 19-1.3 AND SECTION 19-1.4 OF THE KAUAI COUNTY CODE 1987, AS AMENDED RELATING TO PARKS AND RECREATION Chair Asing: Thank you. Mr. Bynum: Move to approve. Chair Asing: Before...before we entertain a motion, what I'd like to do is...I'd like to call in someone to make a presentation first. With that, could I have the chief, could you come up please? There being no objection, the rules were suspended. Chief Westerman: Aloha, Chair, Chief Westerman, County of Kauai. Chair Asing: Yes. Chief... Chief Westerman: You want Norman to come up too? Chair Asing: Yes, please. Before we start, what I'd like to do is I'd like for the councilmembers to listen to a report that was made that I was made aware of a few days ago and I think it's very, very important to this bill that we're about to enact, and with that, I'd like to have the testimony of Norman Hunter, who is the supervisor of the lifeguards at the Lydgate Station. With that Chief, I'll leave it to you. COUNCIL MEETING • - 25 - • May 12, 2010 Chief Westerman: I'll just leave it to Norman to impart to you the information that he provided us the other day, so. Chair Asing: Okay, thank you. NORMAN HUNTER, Lifeguard Supervisor, Lydgate Station: Good morning. We... Chair Asing: Let me just do it this way. There was an incident that happened at the area, and I'm going to show you the area now, can...we'll have dust a short minute or two of recess so we can set up, please. Steph, you can show the... Can we have the lights off and move in the screen. I think... Steph, could we... Okay, that' s a little better, but what I'd like to do is first explain the area. I think it's very... Hello, hello, am I on? Okay, I want to explain the area of this incident and before I do that, I think, Steph, could you show the other slide, please. Ooo. Okay. Let me do it this way. This is... (inaudible) let me start off with the pavilion area. This is the Lydgate Pavilion here. This area here is the sewer station. This area here is the soccer fields. So, you get from the Kauai Resort area here and the road comes along here, this is Leho, I believe, and you enter the grounds to the Lydgate Park area here. If you keep on coming down, you enter the other roadway that comes down in this section and this area here in red is the Kamalani Bridge area. Now, what you need to know and understand is under the current ordinance, all of this entire area is where dogs are not permitted currently, they're not permitted. Under the present proposed ordinance, only this section from here to here will be no dogs allowed. Everything else dogs would be allowed. Now, what Mr. Hunter is going to discuss today and report is this section here. This section here is the Kamalani Bridge area and with that I will open it up to Mr. Hunter. Go ahead, Norman. Mr. Hunter: Good morning. The incident involved has been... Chair Asing: Pull the mike up close to you, please. Mr. Hunter: The incident involved has been an ongoing process throughout the past year-and-a-half or so due to the fact that the population has moved farther south. The playground was set up for children. (Inaudible.) Chair Asing: Maybe you ought to throw up the other slide (inaudible)... no, the other one. Mr. Hunter: Okay, down in this area here is... our lifeguard tower is down in this area here. The majority of the population stays down in the major part of the park. Through the last year-and-a-half or so, the population, since the...everything has been cleaned and the sidewalk has been very well used, the Kamalani Bridge area is a very popular place on the weekdays and weekends. There are baby parties now that are set up down in that area. It's also in the makings of a campsite. So, as our lifeguards run the beach and we do periodic checks down in this area, we have had reports of people that run the beach down here, come down by the Kaha Lani condos, and they run the beach and the dogs have been coming out of the parking lot on the far south by this bathroom and the playground area, the bridge. We've had incidents, this last one was reported to me last week Thursday of a resident that has pretty much been attacked more than once. This is the first time that I've witnessed a bite. I have seen the bite on his COUNCIL MEETING • - 26 - • May 12, 2010 arm; he didn't want to make any kind of police report or anything. He just wanted to find out why the dogs were allowed in this portion of the park. And being lifeguards, we're not...we try to help with the park keepers, we try to help with the park rangers, but we...we don't really know the rules or i£..why the dogs were allowed in that area. But the dogs have been coming out of the parking area. According to him, the dogs came out of the parking area, down by the bridge here, and they run right onto the bridge. The owners might be taking them off the leash or might not have them on a leash, but they've been running off the park area and down onto the beach. Our lifeguards have also run the beach for exercise and they have also been attacked, not by the same dogs, but by many different owners. From the...there are good owners and there are some that just don't pay attention to the rules. But from this dry river bed here on the opposite side, the Lihu`e side of the bridge is where we understand is that the DLNR takes over from that portion down. The county side is from the dry river bed back towards Kapa`a. But we've had many reports and incidents of people that run the beach or not too many people are very easy around dogs. But our portion of this is basically public safety. So we take the reports and we try to follow up on them. This particular individual was pretty upset and he had...I witnessed the dog bite on his elbow...~ust below his elbow and he said it was a German Shepherd. We witnessed other dogs that have been attacking our lifeguards as they've been running the beaches. Most of the area and the people can't get on that beach from there, so they park their car and they stay on the south end of the...by the Kamalani Playground, Kamalani Bridge. We've noticed the population moving south. On the weekends there are big luaus that are set up, up to 300 people or so, that are set up in this area down by the new south bathroom. So between where they are stating that they're trying to make the dogs allowed on the path, in the past granted that there hasn't been too many people down there, but nowadays the local people really use his portion of the park because the major portion of the park is so crowded. The lifeguards take counts and some of -our counts come up to two thousand or more and it's only in the areas that we can see, which is the main pavilion and down to the baby pond, back towards where Mr. Asing said is the big pohaku there with the Lydgate, where they're planning on opening. As far as public safety-wise, we've had many people that are very nervous about it opening up because of the fact that they're not too sure they're so far away from help in case of a dog bite or a case of somebody being attacked down there. We're probably a good quarter mile away from any of the closest incidents. So, our portion of this is just to report a public safety side of it all, and that's really what we're mostly concerned about is whatever the people think is right for them, but we're...the population definitely on the weekends can get up to a thousand people from where the pohaku is, the great...the big stone, down towards the Kamalani Bridge. And we had to call Mr. John Martin to find out some of the rules and regulations and Mr. Martin has been very cordial with us. We are only trying to report this, not because we're against dogs or anything. We're...once again, just basically...we're concerned for the public's safety, and as far as this situation, that's all we're really concerned with and we're dust reporting it because if it does open, we m...there could be many potentials for different incidents that arise down there. Not only would it be dog bites, but it could be confrontations between partygoers or people, and dog owners because like we were saying, not all dog owners are responsible and some are very responsible, so. We're stuck in the middle and all we want to do is state that we are concerned for the public's safety. And that's all we're looking for. This incident did occur and it occurred to the same person more than once, which is why he came up to ask us that day, and it ~ust...I dust so happened to be there and be the person to have received the report. • • COUNCIL MEETING - 27 - May 12, 2010 Chair Asing: Thank you. You can turn the lights on. Mr. Nakamura: Sammy, could you drop the captioning to the bottom? Chair Asing: Any questions? Any questions, councilmembers? Yes, Councilmember Bynum. Mr. Bynum: Hi, Norman, thanks for being here. Mr. Hunter: Thank you. Mr. Bynum: This incident that you're talking about where dogs that were off-leash... Mr. Hunter: Yes, sir. Mr. Bynum: ...and your... I think you know better than most because you spend a lot of time down there. Mr. Hunter: Yes. Mr. Bynum: But people access that whole state portion of the beach fronting the golf course from that end of the park. Mr. Hunter: Yes, sir. Mr. Bynum: And so it's generally on that end of the park where loose dogs have been an issue. - Mr. Hunter: Yes, most people are very respectable about the mayor portion of the park and there are signs posted. So, the park rangers have been real good about following up and they're very limited in staff. So some days on the weekends we easily, Mother's Day I think wasn't too busy, but most of our weekends we have big parties and now a lot of the other families are starting to set up on the south side which is a very good area for them. We've seen situations up to maybe three, four hundred people set ups, sometimes two luaus that are set up in that portion and the Kaha Lani, which is all of the tourists come out of there. So a lot of the tourists actually walk the beach from the Hilton all the way down to Lydgate. So that portion back there has been a concern for us and more so with the animals, the ones that aren't...the owners aren't very responsible. But the ones that have been, you know, there's no problem with them. Mr. Bynum: So, you know that the bill that's currently before us would allow owners to walk their dogs on a leash on the path and within 6 feet of the path. Mr. Hunter: Yes, sir. That's really whatever the public would like. We're with the public and we agree with...we respect the council's decision. Ours is basically a public safety issue. Mr. Bynum: And I think we've definitely learned over this last couple years that dog owners that are disobeying the leash law and allowing loose dogs are a significant issue on this island. You know, a lot of the testimony we received from people who walked the path is that because of the attention that COUNCIL MEETING • - 28 - • May 12, 2010 there are fewer loose dogs on the area where people are walking their dogs. And owners are, you know, dog... responsible dog owners are drop on a dime and you know, and even encouraging those owners to get their dogs on a leash and so, you know, I appreciate the testimony. I think that's a separate issue, just my opinion about loose dogs... Mr. Hunter: Yes, sir. Mr. Bynum: ...that clearly are an issue, not only along our beaches but in neighborhoods. We heard testimony during this time about folks feeling safer to walk their dogs on the path because they are less likely to encounter loose dogs than they are in their own neighborhoods, so. Mr. Hunter: Yes, sir. Mr. Bynum: One of the clear messages I've gotten over the last couple of years with these issues is that we need to enforce the leash law, which is the primary law that communities use with...to set expectations for dog owners, that you take your dog in public, they have to be on a leash, it's the law. That's right. Mr. Bynum: So, thank you for your testimony. Mr. Hunter: You're welcome. Thank you. Chair Asing: Any other questions, comments? If not, I'd... Councilmember Kawahara. Ms. Kawahara: Thank you. Thank you for your testimony and it's good to see you here and I appreciate the presentation and I understand that there ha...that it's a'difficult thing to be in when people aren't behaving responsibly with their dogs. I'm...I was happy to hear you say that you make a distinction between responsible dog owners that do have and do use leashes versus the ones that run loose that nobody seems to be around watching them, yeah? Mr. Hunter: Yes. Ms. Kawahara: So, Mr. ...when you were talking to parks and recreation, were they able to tell you what the laws were? Mr. Hunter: Yes, ma'am... Ms. Kawahara: ...and if those were illegal as... as... and should have been prosecuted or whatever? Mr. Hunter: Up until this point, Mr. Martin has been very cordial with us and he's very informative. We understand that it hasn't opened yet, it's still part of a county park, so at that point it would still be illegal for dogs to be down in that area. He's been really informative to us. So, we're just passing it to our guys in the tower because we are the public safety people... Ms. Kawahara: Yes. COUNCIL MEETING • - 29 - ~ May 12, 2010 Mr. Hunter: ...and we're the only ones in that area. So they'll come to us for medical or information and if we don't have the information, we have direct connection with Mr. Martin in parks and rec. Ms. Kawahara: Okay, so the bill itself would be saying that dogs on the leash, under control of their owners or their people would be allowable, yeah, not loose dogs running free. Mr. Hunter: Yes, ma`am, we're not really against or for, we're dust basically concerned for the public's (inaudible). Ms. Kawahara: And thank you, I appreciate it. I just wanted to see that you were getting information that you needed or wanted from parks. Mr. Hunter: Yes, ma`am, we have. Ms. Kawahara: Okay, thank you. Mr. Hunter: Thank you. Chair Asing: Thank you. Councilmember Chang. Mr. Chang: Thank you, Chair. Norman Hunter, great to see you and thank you for your testimony. You know I think the key here is what you witnessed and what your lifeguards been seeing is the fact that there are sadly irresponsible dog owners that are letting their dogs off the chain. This is all about responsible dog ownership and walking the dogs. I had a brief moment prior to your testimony to let you know there is an amendment that where the pohaku stands, as you mentioned, opposite the Kamalani Kai Bridge, Kaha Lani, from that quarter of a mile heading toward your tower till the end of the road prior to the heiau, that is the area that's going to exclude dogs. You cannot walk your dogs there even with the...with a chain. Last week I had made mention because I was not in and around the area when soccer games were going on with the kids. So _a .lot of_times you think.-about a soccer field, this is a field, but a lot of people don't realize the ball goes out of bounds, so that consequently may cross the path. But what I had asked the responsible dog owners is, you know, there are going to be times that the park is going to be utilized heavily. There are going to be times that the Kamalani Bridge area is going to be utilized heavily. During the weekdays, from what I had witnessed, it's almost underutilized. Would you agree with that? Mr. Hunter: Yes, sir. Mr. Chang: Okay, so those are the times that I would like to let the public know and, you know, ask them...there are times that make sense that you don't walk your dog, ride your bike, do a picnic. I mean when you know places are crowded, in most cases you try to avoid those areas. And I'm hoping that because the path, what we're proposing, is so wide open that there may be times that an isolated area that is "an isolated area" such as Kealia to Kuna Bay could be a little bit more utilized or the other parts of the path could be pretty much more utilized. So I'm hoping... and I'm glad you brought up those concerns because during the weekdays from what I had witnessed and what I've seen, the majority of the people, weekday, weekend, what have you is by the pavilion, by your Lydgate pond, by your lifeguard tower, by your shower, by the comfort station and that was the area that I had the most concern with because as you know, many of the picnic COUNCIL MEETING ~ - 30 - ~ May 12, 2010 tables are right up against the sidewalk and as you mentioned the luaus and the tarps, it's right up against the sidewalk. So there's no 6 feet here, no 6 feet there, and I believe that was a compromise that a lot of people could understand why we were doing what we're doing. So from what I witnessed at the times that I go there in the morning or the latter part of the afternoon on a weekday per se, I think it's a very, very therapeutic area because nobody is around that area, and also do think that the Kamalani Bridge area is also underutilized. I don't think as much people treasure that...that gift by walking in the maze as much as the playground. I used to be the activity coordinator from... for Pahio Resorts way back when it was Pahio, so I did the morning sunrise walks from the then Hilton to the Kamalani Bridge and the Kamalani Park area, and I guess those were the days that people would drive their trucks behind the golf course or what have you. But I do understand trucks on the sand is illegal also... Mr. Hunter: No, Dickie. Mr. Chang: ...unless for fishing purp... Mr. Hunter: Unless for fishing... Mr. Chang: Yeah. Mr. Hunter: but a lot of that has been... gone out the window because there's not very much enforcement down there. So there are quite a few trucks back there now. Mr. Chang: And that point that we're making reference to is DLNR versus the county, correct? Mr. Hunter: Yes, sir. Mr. Chang: So I'm hoping that, you know, when we can get our ranger staff up to full capacity, I'm hoping that that area of concern during a crowded area would be easily...easier to enforce because if that quarter of a mile of Lydgate is off limits to the dogs, the concentration can be in and around the area of the soccer fields, Kamalani_ Bridge-area for enforcement. And we hope that that would be an easier area to keep an eye out of because obviously they got the whole island to take care of. Mr. Hunter: Yes, yes, Dickie, the one thing that and the only thing that really sticks out in our mind, like I said, was public safety. We don't know how to follow through on a dog bite. We don't know what type of liability it stands for us or the county if we don't follow through on the dog bites. Our basic concern is the ocean and we... anybody behind us or around us is a possible victim for us if something happens in a party or...then we are called first and then Station 2 will be called. But the only thing that we're stuck in the middle of is... are public safety issues and that really is all we're really worried about is if somebody does get bit and if our lifeguards are busy doing a rescue or if they're doing something else and they don't get directly to this dog bite, could it affect us as safety officers. Mr. Chang: And... and again, thank you for bringing up that concern because we're equally as concerned and we...we know that your job as a water safety officer goes way beyond being a water safety officer as you also deal with, you know, sadly theft or break-ins and dogs and that, so thank you for your testimony. • COUNCIL MEETING - 31 - May 12, 2010 Mr. Hunter: Thank you. Chair Asing: Councilmember Kaneshiro. Mr. Kaneshiro: You mentioned at one point that you did a count roughly? I didn't get the number. You said... Mr. Hunter: We have a what we do daily logs and on the weekends from the pohaku that Mr. Chang's talking about down towards...we get counts of up to, but it's not on our log because it's kind of out of our area, we can get up to a thousand people back there on the weekends. The bridge is... Mr. Kaneshiro: On the weekends... Mr. Hunter: Yes, sir. Mr. Kaneshiro: ...using those places. Mr. Hunter: Yes, weekends, yes, sir. Mr. Kaneshiro: Okay, thanks. Mr. Hunter: You're welcome. Chair Asing: Thank you. You know, we're due for a caption break, so... Mr. Furfaro: I just want to ask one question. Chair Asing: Okay, sure. Mr. Furfaro: When I was with the City & County of Honolulu, we did beach counts every hour. I want to make sure you're talking this is a thousand count in an hour. Mr. Hunter: Oh no, sir, probably in a day. Mr. Furfaro: In a day, okay. Mr. Hunter: In a day. Mr. Furfaro: So, it's not peaked at a thousand, say at one o'clock when everybody's... Mr. Hunter: No, most of the population hits a thousand at the major part... Mr. Furfaro: For the day? Mr. Hunter: Yes, sir, yes. Mr. Furfaro: It's not on an hourly basis? Mr. Hunter: No, we do do counts on an hourly basis... COUNCIL MEETING - 32 - • May 12, 2010 . Mr. Furfaro: You count hourly. Mr. Hunter: ...but for our area, yeah. Mr. Furfaro: Okay, thank you, Mr. Chair. Chair Asing: Okay, let's take the caption break now and then we'll be right back. Thank you. The meeting was recessed at 11:16 a.m. The meeting was called back to order at 11:35 a.m., and proceeded as follows: Chair Asing: The meeting is called back to order. With that, the rules are still suspended. Chief, Mr. Hunter? Thank you. The rules were still suspended. Chair Asing: Norman, when...when did the dog bite occur? Mr. Hunter: Last week Wednesday. I think it was the 5th or 6th of the month. Chair Asing: Did I hear you say that it is...it was the second time that the individual was bitten? Mr. Hunter: This was the first time that he showed me the bite and I witnessed it. He had said that he's been approached a few times before by dogs, but this was the first time that I actually saw a bite on him. Chair Asing: Did you actually see the bite on the individual? Mr. Hunter: Yes, sir, I saw the bite. It was puncture wounds just below his right elbow. Chair Asing: Okay. So in... in your responsibility in_-the area there, would you say that it would not be in our best interest for the safety of our community members to allow dogs to be walking in the area of the Kamalani Bridge and that...those areas? Would you...what is your opinion as a safety officer in the area? Mr. Hunter: As a safety officer, I see more than one issue towards safety. It would sound like it would be a personal opinion of mine, but I'm strictly here for public safety and I don't really know how to answer that question. Chair Asing: Okay, okay, yeah, I don't want you...I don't want to put you on the spot of trying to do a personal opinion. Mr. Hunter: Yes, sir. Chair Asing: What I was looking for was as a professional safety officer is what I was looking for and not a personal opinion. Mr. Hunter: Okay. • i COUNCIL MEETING - 33 - May 12, 2010 Chair Asing: I believe your function there is for the protection and safety of our community members. So that was what the question was. Mr. Hunter: Yes, I agree on that statement. I would say as a public safety officer I would not think it would be a safe issue. Chair Asing: Thank you. That...that's all I have. Is there any other questions for Norman? If not, thank you very much, appreciate it. Mr. Hunter: Thank you. Thank you for all your help. Chair Asing: And appreciate that. What I'd like to do now is I'd like to read this report into the record. This is the report from Norman Hunter to Chief Westerman. 5/11/10, that's the date. Report on dog bite. On the morning of 5/6/10 (May 6, 2010), Thursday, I was approached by a resident who frequents Lydgate Beach Park. He was very frustrated about being bitten by a German Shepherd on his morning run. I personally witnessed the bite on his forearm right below his elbow on his right arm. I asked him if he needed assistance with his bite. He did not want assistance, but asked why dogs are allowed on the Kamalani Bridge end of the county park for this has been the second time he has been attacked running on the beach. The dogs and their owners were coming from the parking area fronting the, south bathroom. Owners are releasing their dogs and they are chasing after beachgoers and people running the sidewalk and the beach. This has happened to lifeguards when they are running on the beach for their morning workouts. We have warned owners of putting dogs on leashes. I did not have any answers and told him I would seek information on the matter. I will call Mr. John Martin, who is the head of the park rangers for information, and the notation: called John the afternoon of Thursday, 5/6/10, the date May 6, 2010 with the bite information, and it's signed by the water safety officer, Norman Hunter. So I wanted to read that into the record. With that, what I'd like to do is now open it up to the public for the public's comments on the bill. With that, the rules are suspended. Chair Asing: Mr. Mickens. GLENN MICKENS: Thank you, Kaipo, for the record Glenn Mickens. Thank you, Ricky. First I really want to thank my friend Norm Hunter for his fine testimony. I've had tremendous respect for Norm, for Bob and all the water safety people. I've known them for many years. I would ask that Bill 2354 be carefully reviewed by this council. You have a copy of my testimony. I'll read it for the record. Before it's passed, I believe a lot more research should be done on what the 18-month study showed before allowing dogs or any animals, because I presume if it says dogs...I presume that's going to give the right for any animals can use that park on this total path. The 90+ percent of those asked and approved they wanted dogs on this path were people with dogs. That makes this poll very skewed. It would be like asking the foxes, who wants to guard the henhouse if that's what they want to do. When the workers, the rangers, the worker's union, the mayor and director of parks and recreation was asked if dogs belonged on the path, they either said no or agreed to let the northern section of the path be used for dog walkers, a far more neutral poll than the other one. Actually this poll was a realistic one where those that had to clean up and maintain this path were quizzed and the administration, knowing the liability problems that could be faced, opted to let only the northern COUNCIL MEETING • - 34 - • May 12, 2010 portion of the path be used for the dogs and as you dust heard Norman testify, somebody was already bit. But somebody was bit with the law now not allowing animals. Can you imagine what's going to happen if you allow all animals, dogs on that path? Can you imagine the liability problem? I heard over and over that animals were not allowed in parks by ordinance. Since I believe that since this law prohibiting dogs in parks is on the books, the proposed ordinance, Bill 2354, should state whether it's meant to supersede the existing ordinance and I don't believe that this bill does that. Also under Section 19-1.4 Article 10 which says, no person at a park or recreation facility shall drive or park motorized vehicles etc., etc., etc. unless authorized by the director or his designated representative by signage or on a permit. By the Kapa`a Neighborhood Center vehicles drive on the bike path and park on it to use their residence and I presume they have a right to do that. Even if this person or persons has a permit, isn't just...this dust an accident waiting to happen if young kids or older and ADA people feel this path is safe for their use, and fishermen drive across that...their vehicles across the path at that same location -more ill planning. And finally, I would encourage everyone to read Andy Park's blog of May 10th regarding this path. It's outstanding and factually informative. I'm sure you guys have seen it on the computer before. He's got windows. The other thing about the concerns of the original 18-month trial period that you guys issued, grievance filed on March 11th, employees are not comfortable evidenced by the staff survey. Additional maintenance concerns, staffing shortages, meeting public...none of these things have been addressed. All I heard was, you know, where you're going to introduce this Bill 2354, dogs are going to be able to walk on the total part of the path. Daryl, I thought made an excellent point. Certain places may go through the wetlands on this thing. That's going to be a huge issue. You're not going to get...you know, you're going to have to come back and revise this, put some kind of a rider on this thing and say it... Mr. Nakamura: Three minutes, Mr. Chair. Mr. Mickens: Anyway, this is my opinion. Any questions, I'll be happy to answer. Thank you. Chair Asing: Thank you. Any questions? Councilmember Chang. Mr. Chang: Thank you, Chair. Good morning, Mr. Mickens. Mr. Mickens: Good morning, Dickie. Mr. Chang: Have you been on the path recently? Mr. Mickens: Not just recently, no. Mr. Chang: When was the last time you were on the path? Mr. Mickens: About a month ago. • COUNCIL MEETING - 35 - May 12, 2010 Mr. Chang: Okay, can you tell me where...the areas you biked/walked along the path. Mr. Mickens: Basically in Lydgate Park from where the lifeguard...where Norm's lifeguard station or whoever the lifeguard happens to be, from there up to north and from there down to the Kamalani Bridge by the golf course. Mr. Chang: So the current existing path from the boat harbor to south Kealia, when was the last time that you walked that portion or biked it? Mr. Mickens: By Lihi boat ramp? Mr. Chang: Yes. Mr. Mickens: It's been several months ago that I was there, but I used to...before that...before the...soon that path was put in there, I used to jog from Pono Kai up to Donkey Beach on that same route. Mr. Chang: Okay, and then have you ever been up to... so you've been up to Kuna Bay area itself? Mr. Mickens: Yes, yes. Mr. Chang: Okay, because what I would like to report from what I've been saying, I think the shared-use path is respected amongst walkers, joggers, bikers, people that are walking their dogs and unfortunately there is an issue about unleashed dogs, but the walkers that I have seen doing their thing, are very compliant, they're law-abiding, many of them gave testimonies that they themselves needed to learn about the law, they themselves were issued citations, they paid their citations, they understood they made a mistake, and they went about doing what was responsible for almost 18 months. So, one of the things that you are concerned with is maintenance and not being able to maintain it. From what I've seen, many walkers, loggers, people with their dogs have really, really, really cleaned up_ the area. So as far_ as maintenance concerns, I believe that that path is one of the cleanest areas on the island of Kauai because it's so well traveled and people are concerned and they pick up a lot of the `opala that either blows from the cars or unfortunately are left behind, but you know, I believe that we have picked up conservatively hundreds of additional maintenance workers that are seriously going above and beyond with what they're asked to do. So if you do have a chance...I know you exercise and I know just to familiarize yourself or maybe even to talk to everybody on the path, I think you'll be pleasantly surprised how responsible and compliant and how law-abiding and above and beyond the people are going in terms of sticking to the rules of the path or abiding and listening to the signage and probably warning other people about where and where not...presently is not permitted. But I really do feel that one of the bigger issues as far as safety is concerned is the problem with those that would, excuse me, the problem with those that would unleash their dogs and just let them run rampant. Mr. Mickens: But the enforcement mechanism is the other thing that I have big concerns with. You've got what, four park rangers to cover this whole island, and if there's a problem down there and like everybody goes to the lifeguard first, you know, whether it's a sting by a fish or what it happens to be. The lifeguard's the guy on the spot. Sure, he'd probably pick the phone up and try and get a hold of a park ranger, but if Mr. Martin happens to be up in Hanalei or something, to get down here it's going to take him an hour. By that time, you know, COUNCIL MEETING ~ - 36 - ~ May 12, 2010 hey. But everything falls on these safety guys and basically, Dickie, all I'm looking at is the hierarchy, the workers, the mayor, the parks director and stuff. These guys are opposed to this... animals, dogs on the path and all I'm saying is I basically support what they do. I have no qualms with what you're saying about, you know, the responsible people with dogs on leashes and stuff are going to be responsible. It's the irresponsible and one...one lawsuit against this county, somebody gets bit, a million-dollar lawsuit or something, you know, I think that's a big concern to the taxpayers on the island for the sake of somebody having to walk their dog on that path. Mr. Chang: And obviously it's a huge concern for all of us here including the, you know, the administration, the taxpayers, and this council. Do you have any knowledge as to if any suits or anyone filed anything against the county recently? Mr. Mickens: No, outside of, you know, what Kaipo just read from Norm, the guy who got bit, I presume he didn't have a lawsuit. It doesn't mean he can't turn around and finally go ahead and sue us. But again remember that again the big point here is there is no dogs, no animals allowed in parks. That's by ordinance now until this ordinance is changed they still can't be. So, the people are restricted to how many are going to be there. Once you open the gates and let these animals all walk on this thing, now I'm saying it's going to really open the gate for possible, not maybe, but possible lawsuits to happen with more dogs on the path, whether they're older people or kids or whoever happens to be on this path. For this path to be multi-use, it's going to...I think it's going create problems. Anyway, you're going to find kids roller boarding, skating and stuff on that path down there. Mr. Chang: Okay, and I appreciate that and I again want to dust say it again that I believe that they've been very compliant, they've been law abiding, they've been responsible because I know the dog owners probably know their dogs better than anybody else. They know their temperament. They know if and when they should be walking in public. They know if and when they should be walking around a crowded area. Mr. Mickens: Right. Mr. Chang: And dust as a little FYI and somebody can correct me if I'm not right, since 1996, fourteen and a half years ago, there's never been an incident that was reported or never been a lawsuit that came to the attention of the county that we needed to address. So, maybe public education, maybe somebody didn't step forward, but for the most part, as the population grows and more dog owners are...become pet owners, it seems as though it's remained in check because I do a lot of walking and unfortunately I don't live on the bike path side, but in and around the area here within the industrial area or within the residential areas that are county properties, you know, people also do walk their dogs. So anywhere on the island and I guess that's why a lot of people feel safe about being able to walk on the path as such because they feel that they're with, again, responsible people, a nice clean wholesome setting that's ashared-use multi-path for everybody to enjoy. Mr. Mickens: With that caveat again that animals at this stage of the game are not permitted in parks. That will restrict any incidents from happening, right? Mr. Chang: Can you...I'm sorry, can you repeat that again? COUNCIL MEETING - 37 - May 12, 2010 Mr. Mickens: The restriction at this stage of the game that animals are not permitted in parks, county or state parks, that restricts incidents from happening. In other words, if you op... give them the green light to people to bring their animals, dogs or whatever into the parks, that's going to open the gates for more incidents to happen. Like you said, nobody has reported, that doesn't mean they haven't been bitten. Maybe they didn't want to have a lawsuit. But it doesn't mean that the incidents haven't happened. But because of the restriction of people not being there, if they had a dog there they're going to get arrested; they're going to get a ticket for it. Mr. Chang: Okay, but we're talking not about the parks, we're talking about the path. Mr. Mickens: Yeah, well the path goes through parks. Mr. Chang: I'm sorry. Mr. Mickens: The path goes through parks, whether it's Lihi, that's the boat ramp, I think that's a state park, isn't it? Mr. Chang: Yes, but you...but you would be walking your dogs on the path. Mr. Mickens: Right. Mr. Chang: You got 6 feet going this way, 6 feet going this way. Mr. Mickens: Right. Mr. Chang: Which is why again I had an amendment last week because I was concerned because many picnic tables, many luaus or tents are right up against the sidewalk. Mr. Mickens: Yes. Mr. Chang: And the only thing that I could say again, and I'd be happy to go with you, I know you like to exercise. I'll go with you, we can talk story, but I'd like to walk the path with you to asses and talk to people. Mr. Mickens: Love to. Mr. Chang: I think you'd feel a lot more... Mr. Mickens: Right. Mr. Chang: Yeah, okay. Thank you, Glenn. Mr. Mickens: Thank you, Dickie. Chair Asing: Thank you. Is there anyone else? Dr. Rhoades. BECKY RHOADES, Director of the Kauai Humane Society: Aloha and good morning. You know, as our... one of our duties or work here on Kauai is to provide the county's animal care and management services and those include the leash law enforcement as well as investigations of all dangerous dog reports. We have an MOU with Kauai Police Department and they may be first responder, but all the COUNCIL MEETING ~ - 38 - ~ May 12, 2010 cases are turned over to us to investigate the dogs that are biting or being aggressive towards people on the island. It's key that people report problem, bad dog owners. I'm dust going to call it that, okay. None of us want bad dog owners and I think that...what I propose is going to happen which we have already seen happen in the 18-month trial period on the 2-mile stretch of the path is good dog owners turning in bad dog owners, okay. That's what we've seen happen and we've seen better enforcement. I don't care how much...there's no way we can have enough enforcement people on this island for drunk drivers, for speeders, for dogs off leash, for not picking up poop, for all kinds of things. There's just no way. The key is the community awareness and the community working to help protect our community. Just as the incident that was described by the water safety folks, it should have been reported, and if it's reported, then we can do something. I propose dust like Mothers Against Drunk Driving that we are good dog owners against bad dog owners and we're going to see better activity on this path and a better model of dog stewardship by opening up the path, limited to just the path for responsible dog walking. That message is getting made clearer than ever before. We have bad dog owners. We have some; we do; just like we have bad people. The key is reporting. The key is enforcement, education and letting people know the rules, and I firmly believe that this area will be better than it's ever been before for loose dog problems, any dog bite issues, aggressive dogs, all of that by passing this ordinance and I strongly urge you to pass the ordinance. Thank you. Chair Asing: Thank you. Any... go ahead, Councilmember Kaneshiro. Mr. Kaneshiro: Thank you, Chair. So you're pretty confident that in an area where Norman talked about almost upwards of a thousand or more and I even heard two thousand people on any given day and an area up to thousand something or whatever, that you're pretty comfortable that we won't see any kind of incidents like this happening, where dog bite would occur with that amount of people? No, I'm just saying that in this particular (inaudible). Dr. Rhoades: I think we have a very dog loving community, you know, 47% of our households have a dog, and we have very... Mr. Kaneshiro: I have. Dr. Rhoades: We have very few problems when you look at that number of dogs on Kauai. I can't say there's not going to be an incident, okay. Mr. Kaneshiro: Yeah. Dr. Rhoades: I can't say that. Mr. Kaneshiro: Yeah, I know. Dr. Rhoades: I can tell you that we've had five, seven hundred people in an acre park with two hundred dogs at a time. We dust did a dog walk with 200 people and half of them had dogs. We didn't have any incidents. It's about being responsible and it's about demanding that. Mr. Kaneshiro: And I...yeah, and I understand that, but in certain areas where you have a concentration of people, you know, that's the problem I've been having, as you know, you know, through all my discussions. It wasn't about COUNCIL MEETING. - 39 - • Ma 12, 2010 Y dogs on the path at all, which I have no problem, but it's dust that there's certain places where, you know, when I was quite amazed when Norman brought up the number of about a thousand people. Dr. Rhoades: You know in some situations where people have big events, we hire secur...you know, we hire people to assist us with managing large crowds. I don't want ever to have that to happen, but we've had to do that for some of events is to help have security to manage issues that may come up. I don't know... Mr. Kaneshiro: And not only that too because on the weekends probably where it is currently right now, you have the soccer players all out there, you have kids out at the soccer fields, then you have the Kamalani campgrounds and the playground and so forth, so. Dr. Rhoades: I think we have to...I think we have talked that signage will be key. Again, awareness and letting people know who to call and who to call is the Kauai Police Department dispatch, that's who to call. And we work with them every day. It's...it's...you have an incident of an issue whether it be related to a dog or a person or a car or a truck or whatever, you call and you'll get a good response. There's just no way we can have enough enforcement for anything to prevent everything from happening. The key is response time. The key is education, and I do propose this similar type of situation like MADD, Mothers Against Drunk Drivers, I think that's what we're creating and that's something we can promote. Mr. Kaneshiro: And... and... you know, I'm glad you said that that there's no way that we can predict something like that from not happening because I can tell you, you know, I've own dogs all my lhfe, as you know, and you know, I think my dogs are really mellow too, they're real nice and I always say, yeah, go ahead you can touch `em, you can touch `em, and sometimes, you can touch `em but he might snap, so. Dr. Rhoades: Yup. Mr. Kaneshiro: You know what I'm saying. So it's dust the experience, so me being a dog owner that I see and this is why it's been really hard for... Dr. Rhoades: I appreciate it. Mr. Kaneshiro: ...for me on my part too...okay. Thank you. Dr. Rhoades: That's our world... that's our world. We deal with them and it's about making better island dogs and better island dog families. Mr. Kaneshiro: I absolutely agree. Thank you. Dr. Rhoades: You're welcome. Chair Asing: Councilmember Bynum. Mr. Bynum: Hello. Dr. Rhoades: Hello. COUNCIL MEETING • - 40 - • May 12, 2010 Mr. Bynum: So, we currently have an MOU between the Humane Society and the county? Dr. Rhoades: Kauai Police Department. Mr. Bynum: Kauai Police Department. Dr. Rhoades: Yes. Mr. Bynum: So it's, you know, it's an expectation that any dog bite gets reported and investigated. Dr. Rhoades: Well, fortunately on Kauai, not all the other islands have this, but if anybody seeks medical attention for a dog bite, it's mandatory to have it reported to the Kauai Police Department. Mr. Bynum: And so I hear your testimony that you think that allowing responsible dog walking in an area actually improves the safety of that area. Dr. Rhoades: Yes. Mr. Bynum: And that frankly was a surprise to me. It's not something I expected, but I heard that overwhelmingly from the people who came and testified that... and that was a big surprise to me. I feel safer on the path than I do in my own neighborhood because I know that... you know, and so you're talking about community norms, I think our community norms are changing. I know they are. You know, when the parks department did a presentation here, they showed a picture of somebody at Hanalei, way far away from the path, you know, who ran, put their dog on a leash, and escaped enforcement. I think we all know that three years ago they wouldn't have even worried if somebody came into the park because enforcement wasn't occurring and so those new community norms, I think, are a very positive thing that has come from this whole discussion and debate, and I appreciate the Humane Society helping with our park rangers, which we're fortunate to know that we're down two, we're going to hire those soon they just told us during- budget. Dr. Rhoades: We work with them every day. Mr. Bynum: And so, thank you for your testimony. Dr. Rhoades: You're welcome. Chair Asing: Thank you, any other questions? Councilmember Kawahara. Ms. Kawahara: Thank you. So, you're...you're our assigned dangerous dog enforcement agency. Dr. Rhoades: Yes. Ms. Kawahara: So, I mean, obviously we have mechanisms that deal with any situations or incidents that come up with dogs on a county level. Dr. Rhoads: Right, if a dog bite's reported, we actually meet with the owner, we look at the dog, examine the dog, we investigate the case, meet COUNCIL MEETING. - 41 - • May 12, 2010 with witnesses, and we may take the dog immediately for pro... into protective custody to provide public safety until we can establish anything else. It may wait till the trial because there is a citation issued or that it may wait for the owner to build achild-proof escape-proof kennel that the dog can be kept in. But we do the investigation in partnership with Kauai Police Department for the dangerous dog cases. Ms. Kawahara: And the person... the owner of the dog is the one that is the responsible person that we actually prosecute. Dr. Rhoades: The owner or the agent, meaning who had control of the dog at the time of the bite, who is responsible. Ms. Kawahara: Okay, okay, thank you. Dr. Rhoades: You're welcome. Chair Asing: Any other questions for Dr. Rhoades? Dr. Rhoades, thank you. Dr. Rhoades: Thank you all and dust on the side... Chair Asing: I have one question, doctor. Would you agree that if there are areas that are crowded, I'm going to use crowded as up to a thousand people a day even if you take the entire day, I would consider that fairly crowded in an area like Lydgate because it is not that big an area, would it not be wiser in that kind of situation not to have dogs in those areas because of the possibility. of people maybe not securing their dogs or possible dog bites? Would you agree to that? Dr. Rhoades: I say that...my experience here on Kauai is that path...the 2-mile section where we've had dogs allowed for the past 18 months, we've had some big crowds and we've had dogs on leashes, we've had children, we've had elderly, we've had all kinds of folks and we haven't had an incident. The key is - the leash. That is the key, and I would say that as long as the dog is...the dog owner is complying with the laws and the rules we've created, it minimizes any risk. Chair Asing: You know when...when you say we've had the trial for an 18-month period and we haven't had any incidences, could'it be perhaps it was not reported and... Dr. Rhoades: Sure, I mean. Chair Asing: ...possibly? Dr. Rhoades: It might have been. Chair Asing: Yes, as a matter of fact, the report that was just made today was not reported. It was only reported because someone asked the question what happened and why, and that was why the report was made. Other than that, the report would not have been made and for your information, there is another report that is forthcoming, I believe it will be coming from the county attorney's office, of a dog incident in an area, I believe, that dogs are allowed. So, I...you know, want to kind of let you know that perhaps these people just don't report and these two instances that are now being reported were really not reported incidents. So I want to let you know. COUNCIL MEETING • - 42 - • May 12, 2010 Dr. Rhoades: You know, stuff happens and ~ust...I, you know, just as I explained to the chief, you know, we had a case of a lifeguard who took his pit-bull to work with him, let it go and it bit on the beach. We have issues. We have stupid dog owners. We have irresponsible people dust like we have irresponsible drivers and irresponsible everything else. The key is reporting. The key is good dog owners helping us just like the commu...helping us protect our community and that's what I feel is really key with this whole issue since it started is we didn't have any enforcement before really. That cane haul road, you could do whatever you wanted on it. This is the key to helping protect our community more and provide better public safety. That's my opinion and this is my position on allowing responsible dog walking on the path. Chair Asing: Okay, I guess one last question. Would you be in favor of some areas for dogs and their walkers and some areas for people who are afraid of dogs and people who got bitten? Would you be in favor of something like that, one area for people who are afraid and all the dog walkers have an area and the parks division as an example like the Lydgate area, you know, for the park users? Would that be a fair way to treat everyone, the entire community gets a part of the...to use a part of the path? Would you not say that is fair for everybody? Dr. Rhoades: I think that it's really difficult when you start separating out dog zones, no dog zones, this is a dog zone, that's a dog zone. The key is being polite, good etiquette. The path is plenty wide enough for people to be able to bike and walk by each other just like walking down the street in your neighborhood. If you're walking down the street, there's a dog, you might choose to go to the other side. It's the same kind of thing and that's where I feel that it's... it's important to promote good dog ownership, promote the rules. I think there's plenty of room for people to all share the path. That's...that's my opinion. Chair Asing: Thank you. Dr. Rhoades: You're welcome. Chair Asing: I appreciate that. Dr. Rhoades: You're welcome. Chair Asing: Okay, any other question? Councilmember Chang. Mr. Chang: Dr. Becky, through your newsletter and through your networking with those that, you know, the active dog walkers, if you were to put out a news...I don't know how you do it quarterly or what have you, how effective would it be to say to the people, look we're in this together, we want to compromise, but there are places of concern. The sports complex, Kamalani Bridge area, do you feel that the majority of the dog owners will abide by perhaps some recommendations that this might not be the ideal time to walk the dog because there may be a high concentration of picnickers or families or youngsters? I mean, is... would that be one of the things you feel that you could convey to the owners to say that? Dr. Rhoades: Sure, I mean, I think that the key is being a good dog steward, managing your dog no matter where you are when you have a dog on a leash and to manage that dog to prevent problems, and I think we've seen that and we will see more of it. We can sure message that, you know, don't go out on weekends when there's soccer tournaments or whatever, but the key is if they do go out is that they comply with the...they comply, and I don't feel there will be...it COUNCIL MEETING. - 43 - • May 12, 2010 minimizes the risk when they comply with the 6-foot leash and they manage their dog when they're walking and they're polite. And we've been talking to Kauai Path about good etiquette and defining what is that good etiquette and promoting that. Mr. Chang: Because...because you know, the path is very big; it's a large wide open path and if people want a little bit more of a serenity or more privacy, obviously, you now 'have the option of going up to Kuna Bay. And I think a lot of the dog owners understand that there's a difference when you get up to Kuna Bay. When you have an opportunity if you go to Kealia, the northern restroom comfort station, that is where you have the split between the white asphalt and the black pavement. Dr. Rhoades: Right. Mr. Chang: So if you did this on the white side, you did this on the... Mr. Furfaro: It's the other way around. Mr. Chang: No, the white is on the Kealia side, the south side, the concrete and the black is going up north. I'm sorry if I confused you. But if you put your hand on this side and you put your hand on this side, especially at this time of the day, that's going to be 15-20 degrees hotter. The dogs are closer to the ground. You make up your mind whether you want to go there, what time. But it just seems it's very open. Because the reason being is that when the good responsible dog owners gotta squeal on the bad dog owners, you know, most local style, you know, you don't ring the bell as Councilmember Kawakami said you don't toot horn, and you know, I don't want to say in fear of retaliation, but that's just not the way that you're going to pick up the phone and kind of... so it's more like you have to ho`oponopono and try to do it with tact. But it's an education process, so that's why I was saying one of the ways could be through a newsletter or through your network of people that there are times and places that, you know, it's so wide open and large that there are obviously better, smoother transitional areas to be at. Thank you. Dr. Rhoades: Great, you're welcome. Ms. Kawahara: I have a question. Chair Asing: Yes, go ahead, Councilmember Kawahara. Ms. Kawahara: Thank you, thank you. I really appreciate what you're saying and I agree with you. It's...it's good dog owners...responsible dog owners taking responsibility for being able to u...walk their dogs where they want to and also the education that it gives and provides for the whole community in a raised expectation of behavior. So, if by disallowing dogs, would it be kind of creating a kind of bad cycle where you wouldn't have a place to take dogs, you never have an opportunity to exercise them appropriately or train them in social skills and then people don't learn how to manage their dog and then the dogs behave badly? Dr. Rhoades: Well, I think what we're... what we're trying to do is... Ms. Kawahara: If you disallowed. COUNCIL MEETING • - 44 - • May 12, 2010 Dr. Rhoades: Yeah, I don't think that's the right way to go. You know, the number one biting dog is the dog on the tether, lives on the tether, lives in the cage. What we want to do is promote more dogs, more social dogs, and we spend a lot of time at the Humane Society promoting that and training and doing...teaching people, and we will continue to do and hope to do more messaging on that, but it is the way to make better dogs on the island and better dog people. Ms. Kawahara: Okay, thank you. Dr. Rhoades: You're welcome. Chair Asing: Any other questions? If not, thank you, doctor. Dr. Rhoades: Thank you all very much. Chair Asing: Is there anyone else who wants to speak on this item? Mr. Rosa. JOE ROSA: It's noontime already, so good afternoon members of the council. Ms. Kawahara: Good afternoon, Mr. Rosa. Mr. Rosa: Good afternoon. Basically here before me I have this booklet on a survey that was taken from December 2008 until March 31. The figures that I see here need to be looked into before anything is done about this so- called dogs on the pathway. For the period of December 2008 until March 10, I see there were 28,187 walkers compared to 2,804 plus the bicyclists and the joggers, with dogs came up to 3,000 plus. So, where's the justification that the dog owners are taking a great percentage making use of that path? In fact the last couple of months, there was a low in March of 2010 of 43 walkers with dogs, and it's been going down one, two, three, four months. It's showing that this is going to be another white elephant. Here on Kauai everything...when the broom is here it sweeps (inaudible). You take the highway adoption, same thing. When I was working we had people coming on Saturdays, oh, picking up rubbish, getting a shirt, getting a plate. box lunch, well, they're all-there, but-look now. I don't see the signs on the highway where the people used to adopt it. This is going to be the same principle. (Inaudible) getting to be dogs, bicyclists, when you're walking, there's this traffic dam. There's no enforcement. You know, they talk about safety, but safety is something you look ahead and prevent it from happening, not an after-the-fact thing. The fact is last week's testifier said he's a cyclist, but he's says he encountered (inaudible) a case where he got into an accident. This path started out as a way, a sort of transportation in that resolution that I have and I told Tim Bynum last week, this is not the way it is. The dogs are coming in the picture, and today it seems that they value animal life over human life. A dog don't belong I'd like to say like Dickie Chang I'm going to quote what you say about bikes in the parks. There's no reports from way back because no animals and dogs were allowed in parks, so how...where you going to get reports? So that was carried out. Mr. Nakamura: Three minutes, Mr. Chair. Mr. Rosa: Think about those things. We prevent accidents from happening before it happens, not after the fact where you get sued. COUNCIL MEETING • - 45 - • May 12, 2010 Chair Asing: (Inaudible) three minutes are up. Joe, I'll let you... the last three minutes. Mr. Rosa: Well I got... take my other three because almost lunch already, you guys going caption break and all that, so I want to finish up. Like I see over here, the dog bite reported by the parks just recently by the previous speakers, you know, it's something like as I say, it happened but in this report I don't see if they had any other previous attacks by dogs on victims on the path there. A walker, as I say I mentioned about it, he said it's getting too crowded and there...the dog owners sometimes they don't stop for the cyclists, whatever, so. Where's the rules? Who has the right-of--way? What's the speed limit on the path for the bicyclist? Some of them they said they doing faster than 15 miles an hour. Those are the kind of things that before anything else, you're supposed set your rules or guidelines on that pathway, not until after-the-fact something happens and the liability of damage suits come in. That's why as I said that an ounce of prevention now prevents a pound of damages in liquidation and suits and whatnot. So, I'm not really totally against it, but like as I said, the intent of this here, according to the resolution that was drawn up by Mr. Tim Bynum and also with Ron Kouchi was strictly for a sort of transportation, but it's turned into a multiple path of various things, dogs, cyclists, loggers, and even like as I say Mr. Tim Bynum, you come with your... you say you ride a bicycle, but I still see your bicycle sometime in the back of your pick-up truck. You're not riding it from Wailua Homesteads to come to work, but I doubt if it ever will, even though you put the bike path from Wailua to Lihu`e here because this is not a metropolis area and the towns are too far in-between for cyclists to use it. And also like I heard Becky Rhoades say here that the bike path is wide enough for people to be together and also like it is in the neighborhoods. So why don't they use the neighborhoods? Up in my place people walk with dogs, night and day they come around walking with dogs. So, it's all possible. Don't blame something that...it can be done safely in the neighborhood because the dogs have its place. To me it's safer in the neighborhood if you walk because you don't speed in the neighborhood because speed limits in the neighborhood is 15 miles. So, who's been driving more than 15 miles? Like they say enforcement. Think about it. A lot of that is hot air (inaudible) coming out here, they say oh, they can't do it in my neighborhood. Maybe at Kawaihau Road, yeah, but there's other subdivisions that they don't drive more than the speed limit of 35 miles. Residential is 15 miles or the minimum may be 15 or 25. So those are the kind of things you look at it. This thing that they cannot walk their dogs in the neighborhood is a lot of hot air like as I say... Mr. Nakamura: Six minutes, Mr. Chair. Mr. Rosa: ...because they can walk their dogs because speed limit 15 miles per hour in subdivision residential. Chair Asing: Joe...yeah, are you through? Mr. Rosa: Think about it. What I have to say is... Chair Asing: You wrap up (inaudible). Mr. Rosa: ...things of principle that can happen and you don't want it happen before it happens. So do something about it. Chair Asing: Thank you, thank you. Mr. Rosa: Thank you. COUNCIL MEETING • - 46 - • May 12, 2010 Chair Asing: Any questions for Joe? Yes, Councilmember Furfaro. Mr. Furfaro: Thank you. Joe, you are correct that... and I think everybody should realize that that walking a leashed dog in a subdivision is a approved now. Mr. Rosa: Yeah. Mr. Furfaro: Okay. Mr. Rosa: It has been all along, Jay, from as far as I know because... Mr. Furfaro: I understand that, Joe, I just want to kind of go through this, so we're very clear. You are allowed to walk your dog in your neighborhood on a leash. But you are not allowed the benefit of the open space in any community park. Signage restricts dogs in parks. Mr. Rosa: That's right. That's why as I say it's been (inaudible). Mr. Furfaro: We're in agreement, Joe, we're in agreement. I want to read this. The trial evaluation -this was a bill introduced by Mr. Bynum, it was signed off by myself as the presiding officer and chairman, it passed on a trial period on a 5-2 vote. The trial period addresses the following: The purpose is to provide a safe and enjoyable recreation experience to dog owners, handlers and their dogs while not adversely impacting other park visitors in a way that is functionally maintainable. A committee of stakeholders shall be established by the director of parks and recreation and shall include but not be limited to the Kauai Humane Society, Department of Parks & Recreational Advisory Committee, relevant unions and others. An evaluation period shall be established by the committee of stakeholders providing ample time for consideration of the outcome prior to the end of the 18-month period. That report you read from is the outcome. And the outcome basically indicated th_ at there was a lot of mutual _respect-that occurred for the animal owners and I think I just want to say in community building, there is the need to have this time to build relationships and for each person participating to intimately care for the other one's requirements in a most respectful way. The intent of that report was only dependent on the fact that there seemed to be what I heard at least mutual respect from bikers, dog owners walking their dogs as well as loggers, and so forth. There wasn't any major issues about those conflicts between those groups in that report. Now, you can interpret numbers and say yeah, there was 6,000 of this, 28,000 walkers, the ratio was only 1:4 on the dog owners and so, but what I'm trying to share with you is if we allow from Kuna Bay all the way to Lydgate or to Wailua Bridge, that now makes 6.2 miles of walkable area (inaudible). The issue I think we're discussing now is not so much the performance that was relatively good between all stakeholders on that path, but the question is how do we deal with the current prohibition on parks and in particular Lydgate. That was my concern from the beginning and it still is my concern. But that report is only reporting the issues on the path and it seemed to be relatively a good relationship. We never had in this piece, which is referred to the trial period, we didn't have a trial period in Lydgate, you know. We had a trial period for the part of the parks that are there, it was relatively good. If we open up all that area up to COUNCIL MEETING • - 47 - ~ May 12, 2010 Lydgate, it gives dog walkers 6.2 miles. It gives them areas to park along...whether it's the pool and so forth. But I think I don't want to mix the two or loosely interpret the report that has been given by the parks department on what their finding is. I think unleashed dogs is a separate issue and there needs to be enforcement, but we're all going through very difficult times financially. You may have not seen it, but we reinstated lifeguards at $171,000 for the purpose of being...preventing life safety issues from the water, not to police the animals. We added money in dispatch and in the jail block in the police budget so that people could make certain they received a dispatcher if in fact there was an issue. But I don't...I don't want to necessarily, you know, mix the two. There are responsible dog owners that that report reflects seems to have done well. Nothing in there really references the outcomes in the park that the lifeguards spoke to us today because currently right now those dogs aren't allowed, you know, and it's not... Mr. Rosa: No, it's been on for years, over 50 years. Mr. Furfaro: And it's not...it's not for the lifeguards to be enforcing that. So, just...I dust want to make clear, to me the issue is the net outcome of the survey and in Mr. Chang's amendment, are we prepared to lift the prohibition along the park or into the campgrounds or anything and I don't...I don't believe we are. Mr. Rosa: I don't think so either. Mr. Furfaro: I don't believe we are and I just wanted to make sure I clear this with you. And also, I'm not sure we really understand where the path is going within the golf complex to be able to give that green light. That's what I wanted to hear about. I think the survey was presented to us factual from the parks and recreation department, and we have to... Mr. Rosa: And whatever staff committees that you had. They had various committees that made the survey. Mr. Furfaro: That's all I have to say. Thank you. Chair Asing: Okay, thank you, Joe, appreciate it. Thank you, Joe. Mr. Rosa: So, but... Mr. Furfaro: No more questions are being asked, Joe. Chair Asing: No more questions, Joe. Mr. Furfaro: And your time has expired. Mr. Rosa: I know it has, but, you know, that's the thing I want to say too. People ask for public comments. Chair Asing: Joe, Joe, let's follow the rules. Joe... Mr. Rosa: No, no, yeah, wait. This is... Chair Asing: Joe, don't let me do it. Please follow the rules. Let's be fair to everyone. COUNCIL MEETING • - 48 - • May 12, 2010 Mr. Rosa: Well, like people tell me. Chair Asing: Thank you, Joe, thank you, Joe. Mr. Rosa: They don't want to hear me because I speak the truth. Chair Asing: Thank you, Joe. Is there anyone else who'd like to speak? We're going to take one more speaker and then we're going to break for lunch. Yes, go ahead. MARCIA McPHAIL: Very quickly, councilmembers. Chair Asing: Excuse me. Ms. McPhail: I'm sorry. Chair Asing: The gentleman I was going to recognize... stay right there, stay right there because I'm just going to say this. I'm going to recognize you and I'm going to recognize the speaker behind you and then we're going to take a break for lunch. Ms. McPhail: Very good and I just want to be very brief. And I just want to thank you for all your time and...to listen to all of our testimony. I really appreciate it and I really just want to see this ordinance go through and give us people who are responsible, we'll watch other dog owners, we'll make you proud. Thank you. Chair Asing: Thank you. Mr. Furfaro: May I ask her a question. Chair Asing: Yes, go ahead, I'm sorry. Mr. Furfaro: State your name and (inaudible). Chair Asing: I'm sorry, for the record... Ms. McPhail: I'm sorry, but I'm very nervous. My name is Marcia McPhail. Mr. Furfaro: Hi Marcia, thank you for your testimony. Ms. McPhail: Thank you, Councilman Furfaro. Mr. Furfaro: Let me ask...as I dust explained the area from Kuna all the way to Lydgate, but if we maintain the prohibition on dogs in the parks in that area, campgrounds, Lydgate Pavilion, down by the bridge, would you find that acceptable? Ms. McPhail: I would honestly find that acceptable. I will not use that area. When you talk about densities that high, I just wouldn't even take the chance. I love my dog and I really appreciate being able to take her on the path in areas that I'm also comfortable with and like Councilman Chang was saying, we'll police our own and make note of where we should and shouldn't be, but like I said I wouldn't have a problem with that, Councilman Furfaro. COUNCIL MEETING • - 49 - ~ Ma 12 2010 Y , Mr. Furfaro: Thank you very much. Chair Asing: Thank you. BLAKE RAFAEL: For the record my name is Blake Rafael. I work at Lydgate as a park caretaker. Chair Asing: You want to pull the mike up to you, please. Mr. Rafael: I work at Lydgate as a park caretaker. I know everybody's hungry right now, so I'll make this short and sweet. Every time I weed wack I get a face full dog feces, so what about my health? That's all I got to say. Chair Asing: You want to repeat that again now, I... Mr. Rafael: Every time I weed wack the park, I get a face full of dog feces, so what about my health. That's all I got to say. Chair Asing: Hang on. Councilmember Furfaro. Mr. Furfaro: I just want to make sure you heard what I said earlier. My comment was about prohibiting, not allowing dogs in the Lydgate area. Mr. Rafael: Oh, prohibiting. Mr. Furfaro: Prohibiting. Mr. Rafael: That's what I meant. Mr. Furfaro: Okay. Mr. Rafael: Because I get a face of dog feces when I weed wack. That's what I meant. 1VIr. Furfaro: Understood. Mr. Rafael: Yeah. Mr. Furfaro: Thank you, Mr. Chair. Chair Asing: Yes, I... how... and it's going to be difficult, but you try to answer it as best as you can, how often do you weed wack and run into this condition of doing weed wacking and having the doo-doo fly on you or someplace else? Mr. Rafael: At least two times a week, around there because I also have to line the soccer field, yeah. Me and my co-workers line the soccer field. Chair Asing: It's nearly every time you spend a day weed wacking that you will in fact find that you'll be faced with that problem? Mr. Rafael: Yeah. Chair Asing: And that has occurred... COUNCIL MEETING ~ - 50 - • May 12, 2010 Mr. Rafael: On a weekly basis, yeah. Chair Asing: Thank you. Mr. Rafael: Thank you. Chair Asing: Any other questions, councilmembers? Yes, hang on. Councilmember Kawahara. Ms. Kawahara: Just...I wanted to thank you for coming up and the dogs aren't allowed in there right now, right? So we don't have any resp...we don't have people walking their dogs through there legally, yeah, at your area where you work. Mr. Rafael: Just today I got a map from John Martin. Ms. Kawahara: What's that? Mr. Rafael: I got a map from John Martin indicating where the dogs are allowed. Ms. Kawahara: Okay, but right now, every...you have that happen to you even though they're not allowed there now. Mr. Rafael: Yeah. Ms. Kawahara: Okay, okay, I just wanted to check on that. Mr. Rafael: Okay. Ms. Kawahara: Thank you. Mr. Rafael: Thank you. Chair Asing: Let me, yeah. I think that's all for you. Thank you very much. I'd -like to just-make a comment to that question. And the -comment that I need to make to that question is that, you know, they're not allowed there anyway. So, if you allow them, then your problem is going to be multiplied. I just want to clear that. If you're not allowed there, you have that problem, when we allow dogs there, your problem is going to be multiplied. So I want you to know that. Thank you. Ms. Kawahara: Mr. Chair. Chair Asing: We're going to take a break for lunch. We're going to go... for all of you here, when we come back we need to go to the public hearing first as scheduled and after that we are going to go into executive session. We have the attorney from Honolulu and then we will continue with the bill. Thank you. There being no objection, the meeting was recessed at 12:34 p.m. The meeting was called back to order at 1:48 p.m., and proceeded as follows: Chair Asing: The council meeting is now called to order. With that, county attorney? COUNCIL MEETING ~ - 51 - ~ May 12, 2010 There being no objection, the rules were suspended. AMY ESAKI, First Deputy County Attorney: Okay, good afternoon, Amy Esaki from the county attorney's office. I'm going to request to go into Executive Session for ES-438, 439, 440, and 441. ES-438 Pursuant to Hawaii Revised Statutes Sections 92-4 and 92- 5(a)(4), and Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an executive session with the Council to provide Council a briefing, update, and to request authority for a possible settlement proposal in the case of Coconut Beach Development LLC vs. Bryan Baptiste, et al., CV08-00036 SOM KSC (U.S. District Court, District of Hawaii) and related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. ES-439 Pursuant to Hawaii Revised Statutes Sections 92-4 and 92- 5(a)(4), and Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an executive session with the Council to provide Council a briefing in 1000 Friends of Kauai vs. County of Kauai, et al., CIV. 07-1-0007 (Fifth Circuit Court) and 1000 Friends of Kauai vs. County of Kauai, et al., SC-30348 (Intermediate Court of Appeals for the State of Hawai`i); and related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. ES-440 Pursuant to Haw. Rev. Stat. §§92-4 and 92-5(a)(4), (6) and (8), and Kauai County Charter section 3.07(E), the purpose of this executive session is to provide the Council a briefing on Planning Department of the County of Kauai vs. Patricia W. & Michael G. Sheehan, Sr. Permit Numbers: Special Management Area Use; Permit SMA (U) 87-8; Use Permit U-87-32; Special Permit SP-87-9; Class IV Zoning Permit Z-IV-87-40, (Planning Commission of the County of Kauai, State of Hawaii) and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. ES-441 Pursuant to Haw. Rev. Stat. §§92-4 and 92-5(a)(4), (6) and (8), and Kauai County Charter section 3.07(E), the purpose of this executive session is to provide the Council a briefing, update and to request authority for a possible settlement proposal on County of Kauai vs. Lady Ann Cruises, Inc., et al., Civ. 'No. 09-1-0165 (Fifth Circuit Court), and related matters. This briefing and consultation 'involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. Chair Asing: Thank you. With that, I'd like to call the meeting back to order and have a motion to move into executive session. The meeting was called back to order, and proceeded as follows: Mr. Furfaro: So moved. Mr. Chang: Second it. Chair Asing: Excuse me, is there anyone here who wants to speak on these items first? COUNCIL MEETING ~ - 52 - ~ May 12, 2010 There being no objection, the rules were suspended. Chair Asing: If not, thank you. The meeting is called back to order. Motion again. The meeting was called back to order, and proceeded as follows: Mr. Furfaro: So moved to enter into executive session. Chair Asing: Second please? Mr. Kaneshiro: Second. Chair Asing: Any discussion? All those in favor say, aye. Mr. Furfaro moved to enter into executive session, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: We're going to move into executive session. When we get through we will come back and have the dog bill on the agenda. Thank you. The meeting was recessed at 1:51 p.m. to move into executive session. The meeting was called back to order at 3:46 p.m., and proceeded as follows: Chair Asing: The meeting is now called back to order. We will continue the process on the dog bill and we will now open it up and continue receiving testimony from the public. So is there anyone else who did not testify this morning who wants to testify now? Alice. There being no objection, the rules were suspended. ALICE PARKER: Okay, good afternoon, council. Alice Parker, Lihu`e. This is regarding Bill No. 2354. Allowing dogs on the multi-use path especially encourages our elders, kupuna, to exercise on a smooth, safe, paved area that is not suffused with automobile exhaust fumes but with fresh ocean-air. As we -all are aware, the chronological age of our residents is projected to keep increasing. Better health physically by walking and mentally/emotionally by caring for our canine household members will decrease medical health cost to each resident and to the insurance companies, both individual and federal such as Medicare. So, please open the entire multi-use path to leashed, trained canines and their responsible owners. Mahalo. Mr. Bynum: Mahalo. Chair Asing: Thank you. Ms. Kawahara: Thank you. Chair Asing: Is there anyone else? Mr. Taylor. KEN TAYLOR: Chair and members of the commission or council, my name is Ken Taylor. You know this morning you had some testimony from the lifeguard and I certainly don't want to belittle somebody getting bit by a dog, but dogs off-leash are against the law and somebody... somebody is not enforcing the law. To try to relate that kind of a situation to what we're talking • • COUNCIL MEETING - 53 - May 12, 2010 about...responsible dog owners with leashed dogs on the path is a completely different issue and it really saddens me to think that we would try to mix the two because that's not...that's not what it's about, and it also became apparent that our lifeguards, I guess, need a little better training to know who to call when these kinds of problems come up and unfortunately it wasn't...wasn't said this morning that the training of these individuals that do a horrendous job and...but they have to be trained and be made aware of who they should call when these kinds of activities take place and it was...it was obvious this morning that they called the park department which might have been a second call in requirement, but it became obvious in later testimony that the county has a working relationship with the police department and the Humane Society to deal with these issues. And all of the lifeguards should be made aware of who they call when these off-leash animals are encountered and so I hope you'll pass that on to...to the right people, but to mix this kind of situation is really sad. I mean it's like saying, well nobody is going to drive any more down the highway because somebody was driving drunk. That would be ridiculous, but that's just about the same kind of thing you're talking about here, dogs off leash, people not taking care of their animals and following the rules and regulations, and then trying somehow to say that's what creates the problem and so we're not going to allow dogs on the leash. So I hope you'll separate those two issues and move forward with approving the bill before you. Chair Asing: Thank you. Is there anyone else who wants to speak on this item? Come up. Yes. Mr. Rafael: Hi, for the record my name is Blake Rafael. My main concern is public safety. I think about three or four different times I had to bury dead chickens when the dogs attacked the chickens. I could imagine if one day that chicken ends up to be one of my nephews playing on the playground. That's about it. My main concern is public safety. Chair Asing: Thank you. Any questions, councilmembers? Thank you very much. Is there anyone else here who wants to speak on this item? If not, what I'll do is let me set the process down so that we...we can follow the process. What I'll do is first entertain the bill to approve and then I believe there are some amendments. So, why don't we do that first. Mr. Bynum: Move to approve. Mr. Furfaro: Second. Mr. Bynum moved to adopt Bill No. 2354, Draft 1 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Furfaro. Chair Asing: With that, I'm going to ask that those that want to do amendments, I'm going to take a 5-minute recess and for those of you that want to do amendments, let me know so that we can set the amendments in order and who's going to do which amendment first and... Mr. Furfaro: Mr. Chair, I am prepared on my amendment. If there's others you might want to check with, if not I don't think it's necessary to take a break. Chair Asing: Okay. Mr. Kaneshiro: I don't have any problems. I'm prepared to go. COUNCIL MEETING • - 54 - • May 12, 2010 Chair Asing: Okay. With that, there is a motion on the floor to approve and the motion to approve the bill as it was amended on the committee level and brought up here. So basically what the bill does now, it allows dogs in the entire path, the entire path meaning whatever is not built at this particular time will also be included and the dogs will be able to walk. So, it is both the built and unbuilt portion. There is one area that was amended and that is the Lydgate area. In the original bill, the entire Lydgate area was prohibited. Under the amendment by Councilmember Chang, it is limited to a short portion of Lydgate. Basically it is the portion as you drive down to Lydgate Park and make that left to go to the pavilion. It is from that point to going north and that's the portion that dogs will not be allowed. So that is the bill as it stands now that is up for approval. And I will entertain amendments that councilmembers have, so the first amendment that is being proposed is by Councilmember Furfaro. Would you like to make the amendment and get us... Mr. Furfaro: Surely. My amendments are ready and if the clerk's office could pass them about. Chair Asing: Why don't we follow the rules and you make the motion to amend and have someone second, okay? Mr. Furfaro: I'll make a motion to amend as I have an amendment to introduce. May I get a second. Mr. Kaneshiro: I'll second the motion. Mr. Furfaro moved to amend Bill No. 2354, Draft 1, as shown in the amendment attached hereto (see Attachment No. 1), seconded by Mr. Kaneshiro. Mr. Furfaro: Thank you very much. Chair Asing: Thank you. Mr. Furfaro: I would like to bring our attention back to this original purpose of the trial period that we have as I was active as the chairman of the council at that time, and I want to make sure everybody understands. I believe, you know, we do need to approach this from a standpoint of perhaps being mutually aware that there are people in our community that are not as aware of dog activities as, you know, perhaps someone like myself. I've raised dogs, I've raised a couple Shepherds in the American Kennel Club as well. But I want to read from the original trial period, the purpose: to provide a safe and enjoyable recreation experience to dog owners, handlers and their dogs while not adversely impacting other park visitors. And this was signed by me when I was the acting chair of the council. Now the reason I wanted to revisit that, as my amendment is being passed out, I don't want to find us over promising and under delivering in anything that we do here in -the county. So my amendment deals with a couple yet uncertain items. For example I had written in to the county attorney's office to find out if there are any consent issues from the state should we actually have the right-of--way over the bridge at Wailua. Unfortunately, I did not get a response to that and I do not want to find myself holding up this bill waiting for that response, but it is a question that still is on my mind as to the state's consent to travel the bridge and parallel to Coco Palms in their right-of--way. I don't think we have that answer. • • COUNCIL MEETING - 55 - May 12, 2010 I also want to say that we have certain phases of the path that are in this increment of A, B, C, and D phases, which I think will be complete, thanks to Mr. Haigh, over the next 12 months. So my amendment basically keeps Lydgate in a prohibition state at present, but it does allow... dogs shall be permitted on the shared-use path beg7nning at the former Sea Shell Restaurant before we get up on the highway through and to the north end of the Wailua Beach, extending all the way north where towards the end of the shared path at Kuna Bay, including the parking lots and the pathways from the trail head at Kealia Kai to the comfort station, down to the coastal shared-use path. The county engineer shall post the appropriate signs to designate the appropriate areas where dogs are allowed on the shared-use path system. This totals 6.2 miles. I would like also to point out and I will leave this if anyone wants to share, so this includes the in-progress area of the Sea Shell Restaurant, that whole Waipouli area, and all the way to Kuna. It is my hope that this is permanent in my application or my amendment, I'm sorry, and it is something where it will allow us maybe in a year and a half to revisit this, not in the sense that it's time sensitive, but that we could just bring it up. In other words, there is no termination or a trial period that ends, but that there is a period of time in 18 months that we would revisit this. I do think, you know, mutual respect goes a long way. The dog owners have demonstrated that, but I do think a prohibition at Lydgate at this time would be appropriate, and I do concur with Ken that, you know, unleashed dogs seem to contribute to a lot of the problems we've been having. I also want to say, though, I am actually... a young man when I had a little more hair and a thinner body, I was actually, believe it or not, a water safety instructor for water safety instructors for the City & County of Honolulu. I am extremely concerned that we have lifeguards that could be deterred from keeping an eye on the coastal areas, the shoreline, especially with Lydgate, with families and so on. That's me speaking as a water person, as a Waterman. I don't want to see the guards getting in a role that they would leave their station to police another activity, especially after getting support yesterday or Monday from the mayor's office to reestablish the, you know, the lifeguards without furloughs. I think water safety, an activity along the shoreline is the best form of entertainment for families right now because in our county it costs nothing and Lydgate is, to me, a wonderful spot. I also want to qualify that because in my mind there is nothing that is going to deter this council from moving on Kaipo Asing's earlier request to get an eastside dog park and that is in addition to this piece. So, you know, I'm very sensitive. I don't know where the dog path is going to go in the golf areas. I don't know if it's going to go along the shoreline, if it's going to go near the road, if it... You know, I think that discussion and those approvals should come up later. But I am certainly prepared and, based on the information I have mister... from Mr. Haigh's office, feeling comfortable about Kuna all the way to the Sea Shell, 6.2 miles. I don't have an answer back on the questions regarding the Wailua Bridge and so I will refrain from any further comments. I also want you to know I would like you to consider my comments, but in no way do I feel that I wouldn't support responsible dog owners as the proposal is, but I would issue some caution that we don't over promise what we may not be able to deliver. Thank you, that's my amendment. Chair Asing: Thank you. Any discussion? Councilmember... COUNCIL MEETING ~ - 56 - • May 12, 2010 Mr. Kaneshiro: If I may, Mr. Chair, I may have prematurely passed an amendment out also, very similar to Mr. Furfaro's amendment. The only difference was that I can support...I will support Mr. Furfaro's amendment. My amendment actually was a little more, you know, we...what I was going to do was really start it off on the current path system and go all the way north and just leave the Lydgate area out. But what I see here is Mr. Furfaro is proposal is starting from the Sea Shell going all the way north and pretty much leaving the Lydgate area out. So I'm not going to pass my amendment out just to let this body know even though it's circulated among our members, but it just shows that we're not, you know, we're not conspiring to say whose amendment goes because I didn't even know he had this amendment out to the amendment I was doing. So it shows that we're all working diligently to address some of the concerns that was brought up today. And the main concern I had is when I heard that there would be about a thousand people on any given day, especially on the weekends, at the Lydgate Park area and possibly later on when the campgrounds is there, the soccer field and soccer is back in full swing, you may find upwards to maybe more than a thousand people all congregated in a small area, and I do have some concerns about that. I don't have any concerns about good dog owners, good handlers, walking the path on the island no matter where. I don't have a problem with that. I'm... as all of you know, I'm a great...I'm a dog lover, you know, I've owned dogs ever since who knows when and it's just that there are some concerns that were brought up when we talked in regards to parks. When you talk in regards to soccer parks, talk in regards to campground parks, talk in regards to swimming area parks, so and, you know, I have little concern and a typical concern like this that I know can happen and I'm dust relating to Mr. Furfaro's amendment of staying away from the parks is that...is that you can have a soccer game going on. The way the bill reads right now, the way it's been passed, and I don't have any problems with that. I know you get good legitimate dog handlers like that. But you can have a dog handler right now along the path, set his chair into the park, sits down, leaves his dog sitting on the path right now and watching the soccer game. It's not impossible with the bill we're passing right now. So these are small things that we gotta, you know, watch out for, small things. But that...what we're doing is that can legally hap...that happen. You know, the guy can say well sit right here and the dog can sit right there and he could have his chair...he's in the park watching the soccer game because there's nothing in the rules or this to say that he needs to keep walking on the path with his dog. So, you know, and I see nothing wrong with that, but I mean, at some point, you know, how you know the dog's going to sit there for a long time. I mean we all expect that once in a while. So these are things that come through my mind as a dog owner and as a dog handler. So, I support this part about, you know, about having dogs on the path as such, but in an area when we have soccer games going on, in an area where you have a lot of children activities going on, soccer balls being hit here and there, and I just have reservations about that and perhaps I'm a little too cautious about it, but, you know, that's just my opinion, so. Chair Awing: Okay. Mr. Furfaro: I just want to clarify one more comment I made. When I referenced the 18 months revisit, I want to make sure I wasn't talking about a sunset. I was just talking about a revisit. Chair Asing: Thank you. Councilmember Kawakami. Mr. Kawakami: Thank you, Mr. Chair. And dust the scenario with somebody tying their dog up and leaving `em there...we...I guess it depends on how you interpret this provision that's in the bill. It says you have to be in command COUNCIL MEETING. - 57 - ~ Ma 12 2010 Y and control of the dog at all times, so I personally wouldn't consider somebody tying their dog up as being in command and control. But, you know, maybe that is going to require some kind of clarification from the enforcers out there. Mr. Kaneshiro: Well, let me clarify that. What I was specifically stating is that he could hold the leash but be sitting down in the park, it's only six feet away or wherever, the dog can be right there on the path, but he can hold the leash. It's not necessarily meaning he's tying the dog. What I'm saying is that he could still hang on to the leash but the way the...the way the path goes around the park, it adjoins the park. You're right there by the park. So you can sit in the park... the guy can sit in the park in his chair and his umbrella and probably hold the leash in his hand with the dog on the path, and there's nothing that we see in the rules or this law that can prohibit that. So, you know, I mean that's going a little bit beyond, but it can happen because I think I can do it with my dog, I know I could, you know. I know I could. And I'm just using this as an example and I just have some concerns about that because if it can say well, you got to continue to be walking your dog so we don't have your dog distracted by the ball being hit here or hit there or something like that happen, it's not a problem, but we don't have that in this bill. So that's...that's for clarification purposes. Chair Asing: Thank you. Councilmember Bynum. Mr. Bynum: Thank you, Mr. Chair. I dust want to start with that where I'm coming from is that virtually every municipality and virtually every one handles dogs ~ through leash law. They don't restrict dog walking in public areas... They say you have to be in command and control, you have to carry a bag, you have to...they give rules for dog owners. This amendment...you know, the amendment that Mr. Chang did is eliminated from this in the way this is written. So the section that says, dogs shall be permitted on the shared-use path system provided however, and then Mr. Chang has the restriction. So it starts from the premise that dogs are allowed and then limits that. This amendment, however, says dogs shall be permitted on the shared...this amendment would eliminate that whole section and then would say dogs shall be permitted on the shared-use path beginning at the former Sea Shell Restaurant. Well, what that means is my friends at Kaha Lani, that live at Kaha Lani, cannot walk their dog to Monicos for dinner or...they can't take them in Monicos but you can get take-out. They can't walk, you know, to that...to those commercials. My friends who live in the Wailua River houselots... Mr. Furfaro: You know, I have friends at Kaha Lani too and Wailua houselots, so. It's not about friends. I dust want to make sure I interject that. I'm sorry, Tim. I've been quiet for six weeks and when you imply it's about friends, no. It's about delivering something we can deliver in fairness to as many people as we can, and I apologize. Mr. Bynum: I don't think I was implying anything. I just was saying I do know people at Kaha Lani that... Mr. Furfaro: Okay. Mr. Bynum: ...that could not walk their dogs from their own home. I know people who live in the Wailua River houselots who could not walk their dogs, you know, so I won't be supporting this amendment because I don't think it's necessary to do this. I did support Mr. Chang's amendment because I thought there was...it was a specific area for a specific reason. It seemed like a reasonable compromise, but I don't think we need to get into this micromanaging of saying, COUNCIL MEETING ~ - 58 - ~ May 12, 2010 here's... and it's a big very fundamental difference to say here's where you can than saying here's where you can't. And so the other point I wanted to make was...yeah, I don't think the state highway is an issue because we allow dog walking everywhere on state highways now, so I don't think it will make a difference whether it's along there, but that's a reasonable question to...to look at, but I just don't...I also think that Mr. Chang has talked eloquently about my experience of human beings that they're generally reasonable, generally probably not going to choose to go dog walking in Lydgate on a Saturday when there's a soccer game and lots of things... they're... they're going to make that choice...they're going to self-select that. But even if they do, I think it's not a serious problem to have a dog walker walking through even a congested area because we know there are many paths that have 10 times the volume that our paths will ever have that allow dog walking. The...and that's my experience of... and I think a good example is the Wailua corridor where we have changed community norms. I think the good news is the norm...community norms about dog ownership are changing. The expectations are changing. That's a very positive thing that has come from this whole debate. But in Wailua, we came to a consensus as a community that we were concerned about safety on the highway in Wailua and we made a change and lowered the speed limit and my experience of driving that twice a day is that almost everybody has changed their behavior. Our new community norm is to go slow. Now occasionally there's that knucklehead that goes weaving in and out of traffic and creates dangerous situations, and we have enforcement and laws to deal with that, but we don't ban driving through the Wailua corridor because there are some irresponsible people. You know, there is some risk involved in any activity and dog walking in public with regulations is a liberty that's enjoyed in our country and I don't know why we would restrict that liberty here. And so I won't be supporting this. I'll be supporting the bill as written with the... and if... And my last comment and then I'm not going to talk about this again I don't think would...is that, you know, Mr. Chang made a strong argument about why we should consider a restriction in this area and I supported that. As we go to future segments of the path, if there's a compelling reason that we need to address this, we have that opportunity, but I don't think we should set ourselves up to have to come back and as .each new segment of the path is developed, so. I appreciate that this... there are different opinions and I've shared mine and so I'll... thank you. Chair Asing: Thank you. Any further discussion, councilmembers? Mr. Furfaro: Yes, Mr. Chair, and my colleagues here. Let me first apologize for interrupting because politics is personal, you know, and there are situations here that I am promoting that deal with us revisiting this in 18 months and I want to make sure, not sunsetting, just revisiting it because there were some assumes and there were some questions here that still exist in my mind. As I stated earlier, I'm going to support this. I'm just offering some caution going forward that, you know, we need to cross all the T's, we need to dot all the I's. I'm not sure that we have all of that. But I also do want to ask that you try to at least give me an opportunity to have that 6.2 miles that we know is pretty much in place or is going to be completed in the next 12 months as the designated area and then after that revisit it. I do think, you know, we have many good parts to this bill as I said here, but I also said when I signed off on this training period that I wanted to make sure that it didn't impact other park users and, you know, I'm not sure. I'm not sure exactly what places we have in there. So...and before you respond I dust want to let you know I won't say anymore. I hope people could consider my two • COUNCIL MEETING • - 59 - May 12, 2010 amendments, but I will be supporting the whole thing if that's not the case. I think 6.2 miles of path is a pretty good token until we get the rest built and we should revisit it. Chair Asing: Thank you. Councilmember Kaneshiro. Mr. Kaneshiro: And if I may, I dust wanted to add onto Mr. Furfaro's concern is that my part was about a compromise. I had thought and I know there are people that would walk the Lydgate area feeling comfortable without dogs on a leash currently. I know of some people that do that. I know some people will not go to the Lihi side but would go to the Wailua side or the Lydgate Park to walk. So, it's a matter of compromising, being able to give the opportunity for people that want to do that, we can help it. You know, even though I can stay here and tell them how safe the dogs are, no matter how I can keep on preaching how safe our dogs are, you know, there are some people that want to walk but just has this phobia in them and my... and if you look at Mr. Furfaro's amendment, basically we're giving those people an opportunity also to enjoy the path where, you know, where people like that even though it might be a small percentage as there is a small percentage using the dog path, I mean using the path with dogs, there is a small percentage of that amount of people that have that kind of a phobia. And, you know, with this amendment here, I'm hoping that we would allow them to be able to do that. And I can say that because I know people that have called me and have some concerns about that. I can't say whether it's a small percentage or not, we haven't done any survey, the survey was done only on the 18-month period on the specific area that we talked about. But if I can tell you if you were to go out there today and try to do the survey or try to, you know, let's...I think the survey would be very different. I'm just talking about the Lydgate Park area. I'm not talking about anyplace else, you know, just that area on people that walk that areas or the small percentage, even one or two, that makes a difference, one or two has a phobia of that makes a difference because this path was built for everyone to enjoy. Chair Asing: Thank you, any further discussion? Councilmember Kawahara. Ms. Kawahara: Thank you, Council Chair Asing. I dust spoke with Mr. Kawakami and we agreed that we would go ahead...I would be okay to say this. I had a wager with Mr. Kawakami, Councilmember Kawakami, that there wouldn't be any amendments because I so diligently tried to get the amendments in when... in the last two meetings and I have to say that I owe him a lunch because there are two amendments here after... after all the discussion we had and after all of my requests for getting them in in committee. So I owe you lunch and you get to pick where it's going to be at. My concern... my... the thing that's important to me about this is... and I'm glad Councilmember Kaneshiro talked about it, the two different groups of people, the people that have...that may be scared or have phobias of animals and then the people that don't. To me, by saying that one group of people...we're going to limit one group of people for the sake of another group of people in this sense, it...I think it comes down to the quality of life, quality of life for the people with the animals is being traded off for the people that have a quality of life without animals on the park...on the path. I...because it's important to me and because I worry that this is kind of like a restriction and a deprivation of a right that has been proven to be something that is doable, something that over a year and a half has been shown that there...that we're able to do, to me and I'm going to take this out of this book. It's a philosophy of legislation and law. "The right rule of conduct and a just civil law command actions that ought to be performed and prohibit acts that ought not to COUNCIL MEETING • - 60 - • May 12, 2010 be done." And that's exactly what this bill does. It says everybody can use the path and if you have a dog, these are the things that you have to do, so it discusses it in the positive and talks about the things that ought to be performed. And then we also have on the other hand the laws that says these are things that ought not to be done and those are the things ought not to be done are enforced by the dangerous dog law, the leash law, and all the things that the Kauai Humane Society is tasked to do for us. So, it...well, it came up in somebody's testimony that they felt as though their quality of life was being restricted because they had a dog and that the quality of life for the people that were scared of dogs was going to be more important and that was my feeling is that it should be equal access for everybody and that you...you...you legislate what ought to be done, which is what we have done here: be in command or the control of the dog at all times, have no more than two dogs, immediately remove the dog if it exhibits aggressive behavior, visibly carry necessary instruments required for the removal. So there's seven items of what ought to be done and that's what's in this law. And then there's things that prohibit acts that ought not to be done. To restrict a group that has...that I have not seen any proof or any report that says they are not able to do the eight things or seven things that are in the law that are being asked to be done is something that...that troubles me and that's why I wouldn't be able to support any limiting beyond what we had amended earlier to where people can go because they have an animal or not. And I'm dust going to quote one more thing, if I can because I want to be sure to get it in, this is Aristotle: "The virtuous does freely what the criminal does only from fear of the law, fear of its coercive force and of the punishment that may result from violating the law. The criminal, however, does not suffer any loss of liberty when he breaks the law." He doesn't lose any liberties because he's breaking the law and doing something that he shouldn't be doing. When you...and then I'm going to finish this. "...refrains from breaking the law for what he wishes to do. Being unlawful and unjust is something he ought not to do anyway even if he were not constrained by the law. His license to do as he wishes, not his liberty, has been taken away." But if you do it vice versa and these people are following the law, to me you are taking away a liberty for something that they have worked on and have proven and have shown that good people will do. So I thank you for that time and I hope my fellow councilmembers understand that I just have a different view of coming out with the legislation. Thank you. Chair Asing: Thank you. Councilmember Kaneshiro. Mr. Kaneshiro: You know, as part of the procedural process, if you notice as we conducted the meeting through committee meetings, I didn't make any amendments because I knew I wouldn't get a second on my amendment and therefore, that would have left me out the opportunity to be able to present what I wanted to present today. And part of the reason is simple. I mean, you know, as the chair said... as...well, she... as Councilmember Kawahara previously stated, you know, if I had put out probably an amendment like this at all or even...I probably wouldn't have a second at all because we've already had something on the table which is dogs throughout the whole path. So, it's just a procedural move and therefore, when I voted no on the amendment, it was because I had my amendments that I wanted to bring up here to the full council and I don't like doing amendments in the full council to tell you the truth. In all my years I've been on the council, I don't like to do it. But if I had any indications that I would have a second so we could have some discussion purposes, fine, but I know how to count. I know the numbers. There's only a couple of us on the committee and it's easy to count, and I, you know, and like I said I don't like to do it here on the council, but at the same time, you know, I respect what the rest of the committee did. I...you know, I can move on and I mean we can move on and I would call...tell the Chair we • COUNCIL MEETING. - 61 - May 12, 2010 should call for the vote, take the vote, and let's move on, you know. I've made my point and I feel good about making my point and I'm ready to move on if the amendment passes or not. Chair Asing: Councilmember Chang first, and then Councilmember Furfaro. Mr. Chang: Thank you, Chair. First of all, Chair Asing, I want to thank you for bringing. up a lot of really important points this morning and I want to thank Councilmember Kaneshiro and Councilmember Furfaro for introducing these amendments. One of the things that I became aware of is I believe I...I didn't really think about the population moving south toward Kamalani Kai Bridge and I acknowledge that I didn't really pass the times that there were soccer games going on, so don't...that is a consideration for me to be concerned about that population base with everyone going on. But I do want to quote from our April 21St meeting of our minutes and what I mentioned to everyone is my concern and I quote "is quite honestly about the various places on connectivity, in other words, there are parts of the path that is obviously planned but not built presently. So there are people in the wildlife, conservationists, Imean the people that have concerns within the secluded areas of Nawihwili, the backside of Hanama'ulu, which many of us are not aware of what even the backside of Hanama'ulu looks like." So consequently we needed to get community members of Lihu`e and Hanama'ulu involved and last week I hope everybody remembers that I also did have a concern within the golf course area. However, thanking my councilmembers, I will not be supporting any...the amendment and the reason being is that what I've been hearing is mainly the concern about the unfortunate bad dog owners with dogs not being on the leash and we've heard islandwide and I believe from the testimonies from Kekaha, Hanapepe, Koloa, the Lihu`e area, for them to be able to utilize the Smart Growth purposes, they are able to drive past the golf course and take a quick turn into Lydgate as does the people from the homesteads or the houselot area and they can enjoy that area and as I mentioned, please, I don't know if it's possible at all, but we all need to make our discretion when places are overcrowded. Imean during shopping season you don't go to Kukui Grove, you know, in the peak times. There's other examples that we could give. But, you know, one of the concerns that the community raised was when the proposed path was going to go from Kealia to Kuna, those that were used to Lihi to Kealia were now forced to get in their cars and drive up to the Kealia area, consequently getting yet again involved in traffic. And there is one of the things that I did do was stand at the intersection if you turn into Kealia, and as most people know, the cars are going at least 50 miles an hour if not more, so you got cars trying to not only get out with two different ways of traffic. So you know I am pleased with all of our discussion and I have been assured and reassured that if any members of the council and any members of the community at any some time or another has a concern and is...wanted to bring up a discussion about places that are not yet currently funded, studied or built, there is a mechanism to have that discussion so we can write the deal. But I am going to be supporting the bill as amended and I want to thank my fellow councilmembers for giving me this opportunity. Thank you very much. Chair Asing: Thank you. Councilmember Furfaro. Mr. Furfaro: Yes, I just want to summarize. My first amendment again was put out there based on... and I want to make it very clear I don't want to over promise and under deliver. That's what I said. I have a couple of nephews that are lawyers, I have a nephew that's a judge, and so forth and there's so many ways to look at the law and I just thought again let's...you know, my COUNCIL MEETING • - 62 - • May 12, 2010 position has been clear for that area from the very beginning and I think everybody here knows that. But I'm also a big boy and I know how to speak when it's my turn and it wasn't my turn until now because I'm not a committee member. So let's say I appreciate your offer to let me have somebody else introduce it, but you know, I feel it was appropriate for me to share that 6.2 miles. I think the responsible dog owners earned the 6.2 miles. My second amendment which hasn't been on the table... Chair Asing: Hang on. Mr. Furfaro: Are we going to vote on the first one? What are we going to do. Chair Asing: Let's do this. Is there further discussion on the amendment that is on the floor now as proposed by Councilmember Furfaro? If there are no discussion, let me dust make a few comments. First of all the comment made by Councilmember Bynum regarding all over the country and the paths dogs are allowed, I want to tell you that there is a difference between the path when it goes through a county park, that is a difference because we do not... currently our rules do not allow dogs in the county park, so that's our law today. So when the path goes through the park, it is that portion that is prohibited because it goes through the park. So I just want to clarify that and perhaps we can move on. Let's take a vote on this amendment. So, all those in favor of the amendment say, aye. Those opposed say, no. The noes have it. It does not pass. The motion to amend Bill No. 2354, Draft 1, as shown in the first amendment introduced by Mr. Furfaro (see Attachment No. 1) was then put, and failed 3 to 4 (Councilmembers Bynum, Chang, Kawahara, and Kawakami voting no). Chair Asing: Is there further amendments? Mr. Furfaro: Yes, I have another amendment. Chair Asing: Fine. Mr. Furfaro: Thank you. Chair Asing: Can you make a motion to amend? Mr. Furfaro: Yes, I'd like to make a motion to attempt to amend again. Mr. Kaneshiro: I'll second the motion. Chair Asing and Mr. Furfaro: Thank you. Mr. Furfaro moved to amend Bill No. 2354, Draft 1, as shown in the amendment attached hereto (see Attachment No. 2), seconded by Mr. Kaneshiro. Chair Asing: The floor is yours. Mr. Furfaro: Thank you and I think this is being circulated. This is a general prohibition applicable to all parks and recreation facilities in section (e), but it...I want to make sure everybody understands...it is asking the parks and recreation department to come back and make another presentation to us • • COUNCIL MEETING - 63 - May 12, 2010 as it deals with the 18 months of the approval of this ordinance for the "evaluation of allowing dogs on the path. The report shall include, but not be limited to, any concerns regarding incidences of dog bites, citations, etc." But one thing that is also very clear, I have no idea where we're going to be budget-wise in 18 months and how many more park rangers we can put on and so forth. This is not a sunset. This is only a revisit of our procedures. There might be some things that parks and recreation wants to point out to us that we need to revisit on. So, that's all I'm asking for in that. Chair Asing: Thank you, Councilmember Kaneshiro. Mr. Kaneshiro: I also concur to Mr. Furfaro's amendment. I was in the process of putting an amendment like this together also and basically all it's saying is that, you know, let's just go reassess the effectiveness of this whole ordinance. As stated in my previous arguments is that this ordinance allows dogs, even on unimproved path, remember that. It allows dogs anywhere on multi-use path, whether it's in Wailua, whether it's in Nawiliwili, whether it's in Waimea, whether it's in Koloa or Kukui`ula or to the Spouting Horn. So, the bill we just passed allows that to happen and basically all it's saying is that as time moves, as Mr. Furfaro pointed out, Phase 2, Wailua to Papaloa, probably, you know, up to Kawaihau will be completed by the fa112011 with additional miles of added path. It may be a pretty good idea to just go look back. We're not saying...I'm not in favor of sunsetting this ordinance, I'm telling you right now. I'm not... if there was a sunset clause in this, I would 'not approve it. But it's just reassessing, looking at it, see where we're at, and if everything is as well as we did have in the 18-month period, there would be no problems at all. I think, you know, it would be a great thing. But it would be a great time to reassess and just...and we're not (inaudible)...you know, we're not asking...I don't think I see anything about asking for surveys and asking for all kinds of, you know, way that we implemented the trial basis. Basically it's dust, you know, if there are...there were some concerns, some incidences of dog bites, citations and so forth, it gives us this time to reevaluate this...council, let's reevaluate this as we move on and I can surely support this amendment. Chair Asing: Thank you, any further discussion? Ms. Kawahara: Can L.. Chair Asing: Councilmember Kawahara. Ms. Kawahara: Thank you, thank you, Council Chair. I understand that... I understand why this... why Councilmember Furfaro is asking for this and I think it' is the reas...you know, it's reasonable because we don't know where the paths may go. But we do know what responsible dog ownership is and what it looks like on the paths that we have riow and that's what it would look like wherever the path may go and whatever...whatever, wherever it goes. That's why I was in support of the bill for being there for all future paths because I believe the work done, the studies and the records show responsible dog owners, responsible dog walkers are capable and have every right to be on the path as much as anybody else that's doing something that's legal and appropriate. So, again, I understand we don't know where the paths are going, but we do know by the law what we want responsible dog owners to do and what we want them to emulate and what is...what they have been doing for a year and a half. So, I can't support this, but I do understand where it's coming from. But I do see that we may not know where the path is going, but we do know what responsible dog owners would be doing on that path and their behavior. COUNCIL MEETING • - 64 - • May 12, 2010 Chair Asing: Thank you. Councilmember Bynum. Mr. Bynum: I appreciate this dialogue and I...like I said I think that it's very positive as a community and I didn't support the trial period when it happened. But I want to acknowledge that good things have come from that in terms of focusing our community on good stewardship and making those behavioral changes and although this amendment is fairly benign, it says that the parks department will give a report and then it also says that...but it also says that... something I don't really understand what the implications would be "at such time the council shall reassess the effectiveness of this ordinance, which allows dogs on the path." So even though this amendment is fairly benign, I don't think it's necessary to put it into law. If in 18 months any councilmember wants the parks department and it's part of their routine to do these things this bill says, to monitor, to look at a s...you know, to record any incidents, to keep a record of citations, and so I think if any member wants the parks department to come back in 18 months and provide an assessment, that they can. It's not necessary to place that in an ordinance. So, I don't think I'll be supporting this. Chair Asing: Thank you. Councilmember Furfaro. Mr. Furfaro: Yes, I just...maybe I need to clarify that. It's not any councilmember...iys any member with three other votes that can change things. But I want to say that the intent, since you know sometimes I speak in pidgin tones and I don't articulate as well in writing, my concern was since I didn't hear from the county attorney, when we go along, if we go along Coco Palms, you know, what is the barrier between the walkers, the dog and the road? I don't know that. If... Mr. Bynum: I do. Mr. Furfaro: I'm glad you do. What... when we do get to Lydgate, if we go 6 feet on either side of the path and yet we're going by the pavilion, baby luau, so forth, you know, would we need a fence, you know, with some gates? Those are the types of things and Mr. Bynum I'm speaking to you because you asked the question, those are the kinds of things that I just suggest that need revisiting;-you know. Most of my life I constantly worked in resort areas where part of the yearly review was to make upgrades to the facilities to meet the demands of customers and the needs of operations. So, I hope I answered your question. Chair Asing: Thank you. Councilmember Bynum. Mr. Bynum: And I understand that. I... when I... if I understand this amendment, it doesn't anticipate any vote on anything in 18 months, it just asks the parks department to give an assessment... Mr. Furfaro: That's right. Mr. Bynum: and I think any of us could ask that if... assuming we're here. I may not be here 18 months from now. Mr. Furfaro: But I didn't want to portray it as if there was a vote that could change something. It is only asking for an updated "and shall consider these things" or may want to have some things. They are only in consideration of what we may want to constantly make improvements on. • COUNCIL MEETING • - 65 - May 12, 2010 Chair Asing: Thank you. With that, Councilmember Kaneshiro, and then Councilmember Kawakami. Mr. Kaneshiro: Thank you, Chair. Let me go straight to the point on this. My intent was basically so if you do have a whole new council that is reelected or comes back in November, you people don't have to deal with this issue at least now for 18 months because we have something in the law that specifically states, that gives you guys the time to say, let's look at citations and so forth. So, I'm fine whichever way it goes. What I'm trying to prevent is this coming back to the table in 6 months. We may have a whole different council here in committee...we might have the same council but a whole different committee that can bring this back on the table right after election in 6 months. That's the reality, you know, and I said I support dogs on the path; I don't have a problem, but I don't want to be dealing with this again in 6 months time, I mean, you know. This has been a long debatable issue that we've had. I mean, it's been, you know... that's what this here will do, will allow you to do that, will allow even to reassess in 18 months and I'm certain with the way that you...it's been proven what the dog owners have done in the past that it's not going to be an issue. But, you know, I'm dust putting a warning sign up there so if this doesn't fly, that's fine, but I can tell you it can come back in 6 months. Chair Asing: Thank you. With that, Councilmember Kawakami. Mr. Kawakami: Thank you, Mr. Chair, and so what I'm understanding is this is just a report back after 18 months, and so, you know what for me, this...it's not a big deal. I'm going to support it because it's really not that big of a deal. In fact, I think it's a good idea and... Mr. Furfaro: Oh, thank you, thank you. Mr. Kawakami: in fact, I... no, well, you know what, quite frankly right off the bat everybody knew my position and I've been strong to the position. But this... this is a good thing because where I'm coming from is I think in 18 months, I'm confident that the reports are going to be positive. You know, if I didn't feel that way, I wouldn't be...you know, I wouldn't have taken_the_ stance that I took, so I have nothing to be afraid of, I think, after 18 months, and if I'm wrong, so what? Then I'm wrong. But you know what? We cannot be basing our decisions on the fear of failure, you know, and if we base our decisions on the what-ifs and what if it fails or what if I took the wrong stance, man, I'm just going to walk the easy way down the middle of the road and then nothing happens. So, this really is not that big of a deal. I don't know why there's such heated debate on it, it's 18 months, hey, give us a report, let us know if there's dog bites or not. Let us know if there's incidences or not, and it's good for us. It lets us know, well, lets us know where we stand if we made the right decision. We're not going to always make the right decision, okay, but we cannot be basing our actions on the fear of failing because then nothing gets done, okay. So this really does nothing, 18 months they report back, I can support it, okay. Let's move on. Chair Asing: Thank you. Councilmember Bynum. Mr. Bynum: I don't think this part is heated. I think we did that already, but we...you know if there's votes for this and it's the consensus of the group, I can support it because I think it's pretty benign. I don't think it's necessary because we can accomplish it anyway, but I do, if the committee will be patient with me for one minute, I do have just one question about the final sentence that perhaps I could ask the county attorney. COUNCIL MEETING • - 66 - • May 12, 2010 Chair Asing: I'm not going to hold you back. Whatever you want, Mr. Bynum, is open for discussion. Mr. Bynum: If I could...I just...the last sentence says...if I could just read this, "it's anticipated that"...well, no...it says we're going to get a report from the parks director in 18 months. I got no problem with that. I just have a minor concern. It's probably not anything real. The last sentence says, "At such time the council shall reassess the effectiveness of this ordinance which allows dogs on the path." I'm coming from the assumption that a reassessment means a discussion, you know, that we have a dialogue and so I just want to ask the county attorney if this language would require a vote from the council or is my assumption correct. Chair Asing: Can we have the county attorney up, please? There being no objection, the rules were suspended. AMY ESAKI, First Deputy County Attorney: Amy Esaki. Chair Asing: Hang on for just a little while. We have some technical problems, I believe, and I want to make sure that it's okay. We're going to take a short break, technical problems. There being no objection, the meeting was recessed at 4:47 p.m. The meeting was called back to order at 4:56 p.m., and proceeded as follows: Chair Asing: The meeting is called back to order, with that we have the county clerk up and I believe there was a question... The rules were still suspended County attorney. Chair Asing: County attorney, I'm .sorry. Ms. Esaki: Okay, I'm going to ask Councilmember Bynum to repeat his question. Mr. Bynum: The last sentence says, "At such time the council shall reassess the effectiveness of this ordinance which allows dogs on the path." I'm operating from the assumption that that means the council will decide what reassess means, but it doesn't require a vote on the bill. Ms. Esaki: That's correct. The council at that time will... the word is shall, so you'll be reassessing at that time and as to how the council will dispose of the matter will depend on the discussion that takes place in the future. Mr. Bynum: Okay, thank you very much for that. Ms. Esaki: You're welcome. Chair Asing: Thank you. With that, I'd like to call the meeting back to order. • COUNCIL MEETING - 67 - May 12, 2010 The meeting was called back to order, and proceeded as follows: Chair Asing: We have a motion on the floor to amend. Any further discussion? All those in favor say, aye. The motion to amend Bill No. 2354, Draft 1, as shown in the second amendment introduced by Mr. Furfaro (see Attachment No. 2) was then put, and carried by a vote of 6-1 (Councilmember Kawahara voting no). Chair Asing: Thank you, the ayes have it, the amendment passes. Is there any other amendments? If not, we're on the main bill as amended. Is there any further discussion? If not, I'd like to take a few minutes of recess while I set up. Thank you. We're in a short recess. There being no objection, the meeting was recessed at 4:58 p.m. The meeting was called back to order at 5:12 p.m., and proceeded as follows: Chair Asing: The meeting is now called back to order and I believe I asked if there was any other comments for discussion purposes before we take the vote, am I correct? Is there anyone else who wants to make any comments, councilmembers? If not... Ms. Kawahara: Will you be doing a presentation? Chair Asing: Pardon me? Ms. Kawahara: Will you be doing a presentation? Chair Asing: Yes. Ms. Kawahara: Oh, okay. Chair Asing: That's the reason I asked if anybody had any... Ms. Kawahara: And then we get discussion after that? Chair Asing: ...comments... Ms. Kawahara: Oh, I thought I might have discussion after that if I had comments. Chair Asing: Pardon me? Ms. Kawahara: I might...I thought I might have comments after it, but no, you're not going to take comments. Chair Asing: Yeah, I mean we're done. Everybody did their comments. My turn to do my comments and then we'll take the vote. Ms. Kawahara: Okay, okay. Chair Asing: Okay? You know I... first of all I would like to commend all of you people who have worked so hard, diligent, spent the time and effort to do what you felt in your heart was right, and I commend you for doing it. There is a little bit of a difference between what I feel and my convictions are, and I COUNCIL MEETING ~ - 68 - • May 12, 2010 will explain my reasoning, my conviction and where I stand on the issue and why. I owe that to you as your representative on the council, and I do represent all of you. Issues: honesty, integrity, accountability, openness, transparency, the little and big things that administrators and politicians know about but don't talk about because of fear...fear...fear of the unknown, what would happen, what could happen, should happen to me or others. Fear, what's the upside, what's the downside, what's the future for all concerned, for me? Is there another way? I've spent sleepless nights thinking about the zillions of possible consequences. Then I do a full circle and get back to honesty, integrity, accountability, openness and transparency. How important are these values in life to me? Is it worth it? Then something else hits me. What's the big deal? Maybe I'm wrong. Maybe I'm the problem. Then I start the sanity check and I look at myself and the zillions of questions again repeats itself. Maybe I'm the problem and it's me, and I'm the guy that's off base, unrealistic, unreasonable, and just plain wrong. Then after doing these series of doubtful questioning on myself, guess what? I end up back to square one again. I'm okay. I'm not way off base on the accuracy and truthfulness of the information and my conviction. I want to start by saying (1) there was an issue about dog attacks. There is...there was one that was reported and you heard it this morning, an attack that happened at the Lydgate area. I want to read you another one. Let me read you this letter and I don't have to name names. I don't think that's important. I think the letter is more important. It's dated Wednesday, April 21, 2010. Council Testimony: I am not for dogs on bike trail. I am writing concerning the issue of dogs on the bike trail. To give you my background, I am the original person who got attacked by a dog on a leash on the bike trail at Lydgate Park. I had no insurance due to pre-existing-and I'm not sure what that was meant for-and was unable to get medical attention. Mistake number one, I should have sued the county and the dog owner. From that experience I shall have fear of dogs and do not feel relaxed when walking or biking. I want to know when the safety of our citizens, human beings, become less important than the rights of dogs. Granted most dog owners can control their dogs; however, there are many who cannot and there is ample island to walk dogs. This is one. I have a number of correspondence with the same fear of dog, not people who got bitten, but just fear of dogs on the path, and therefore, Ihave-some concerns. What about those people? Do they count? Or me as a representative of the people of Kauai, it is only dog owners on the path is okay, the rest of you don't count. If you have these problems you don't count. We don't have a place for you. I think that's wrong. That's not fair. That's not representing the entire island, our community. It is so unfair. There should be places for people to walk with their dog. Yes, I agree 100%. But what about those that are afraid? Do they count? Or shall we say, you don't count. You have to walk... if you're going to walk, you have to walk on the path, the dogs are there and you just don't count. So, I have some concerns, some problems, who do I represent? What do I do? Is it right? That's the first item. The second item... original dog owner... is... let me do this, let me say... and I'm going to read this first. We, you know, Councilmember Chang mentioned, you know, the survey and everybody lived by the rules and abided by the rules, let me read you this. This is to the Mayor. I'm not going to mention names, who wrote this, but I'll read it to you. "Dear Mayor, I have already written the county council regarding my voice for dogs on the path, but I feel in fight of your recent testimony at the parks and recreation committee meeting, I would like to express my feelings to you also. I am wondering if you could help me understand why you would limit dog owners to the thinnest and hardest accessible portion of the path when, in fact, we were supposed to be allowed the entire path if we all followed the rules for the COUNCIL MEETING - 69 - May 12, 2010 sunshine period. I want to emphasize this point to you if we all followed the rules for this sunshine period." This is in the letter. "Also, why does this continue to be an issue when clearly the results show that the people are for continued allowance of dogs on the multi-use path? Do you represent the people, those who voted... all those who voted all of you into office? And if so, then why do our voices have a good chance of being overlooked in what appears to be private platforms?" Now, because I'm not going to mention the author of this, I will now tell you that this individual here happens to be an individual that was on your committee and on top of that, this individual here did surveys, did the logs, 31 on the log, and 34 on the survey. But I want to read this to you. Citation Number 314340MK. Date: 2/14/2010. Time: 11:05. Location: Bottom of trail coming down Donkey Beach Parking Lot on bike path. Synopsis: Patrolling bike path on mule-and I'm not going to mention the ranger's name or number~bserved (the name) walking two dogs on leashes down the paved path from Donkey Beach parking lot onto the bike path. Following the rules, the letter to the mayor says following the rules. I follow the rules. This person here was cited. This person here is one of you on the path. Citation, two dogs. Fair, right, honest, I don't believe so. You know, this is...this is not easy for me. It's not as easy as you think it is. I did a little review of the...the study, the survey. Let me show you the results of the survey because I hear my good friend Councilmember Chang says 97% of the people agree according to the survey. Let me show you the survey. Mr. Furfaro: Excuse me, Mr. Chair. Chair Asing: Yes. Mr. Furfaro: Do you not think you should turn this over to me since you're making a presentation? Chair Asing: Yes, I'm sorry. My apologies, I will turn it over to you while I make my presentation. My apologies. Mr. Furfaro: (Inaudible) you have the floor. Chair Asing: Yes, thank you. What I want to show you here is...this survey here, there are really two surveys in here, one done by all of you volunteers and I commend you for your work, for doing your hard work. But I want you to look at that. It is very odd. It is very odd because... Can I have the pointer please? The question: Are dog feces on the shared-use path currently a significant problem? The path volunteers 90.1% said no, no problem. Why is it that another ' survey, same group except it was done by staff here says 20.7% said no problem. Look at the range. How can it be so far off? One group says no problem by 90% and the other group says 20.7%. Something is wrong. Is that right? (The next one on.) Question again: Do you feel safe with the leashed dogs on shared-use path? This is the volunteers, 51.7% says no. Look at the disparity. The other survey, no is 2%. Something is wrong. Mr. Chang: Chair, excuse me, I think... Chair Asing: Yes. Mr. Chang: ...when you made reference to the 51.7% that would have been reversed. If I... if... COUNCIL MEETING ~ - 70 - ~ May 12, 2010 Chair Asing: No. Mr. Chang: Did I hear that correctly? Chair Asing: No, no, no because here's the staff is the 51.7 and the path volunteers is 2%, okay. So, I want to just show you that something is wrong. Then I will do one more thing to say, I wonder, maybe they're wrong too. So let me show you another piece. This happens to be... the blue is the path volunteers on a question of do you think the county should continue to allow leashed dogs on the shared-use path. Look at the yes. The path volunteers 97.2% says yes. Look at the staff 20.7 versus 97.2. Why is it so far off? Now, I took the Ward Research information which was done by the Humane Society. I believe, Dr. Rhoades, you commissioned that group to do a survey also and if you look at their survey, you will find 43.0%. But look at the disparity between even 43.0% and 97.2%. Why disparity? Something is wrong. It does not add up. Thank you. Can you turn the lights on again? Turn the lights on, please. Mr. Bynum: It takes a minute. Chair Asing: Now, I want to make reference to one of the survey reports. On one of the survey reports, what we have is a volunteer group person surveying each other. Why is that, one person surveying the other person? And when I look at the results, I see it's beautiful and that's the way it should be, but that's what is shown on the report. Now, let me do this. Let me show you the last slide. Put the last slide on, please. This slide here will show you in red the way the bill is today on the floor as amended. The red represents the area that the dog can walk. The yellow here is where the dogs are prohibited from walking. This portion here is unbuilt yet, and that's from the Lihi all the way back to the Wailua Bridge area, so that's unbuilt. Now, the question that I have that bothers me is again, here's what you have here and Councilmember Furfaro, I want you to know that the miles that I have is accurate. What you have here is in the red, you have the area that the dogs can walk is 6.2 miles. The area that is being prohibited in here - Steph, that's wrong, it should be one quarter - is one-quarter of a mile. The red is 6.2 miles. So, for me, what is very difficult is simply this: for the dogs you have 6.2 miles that you can walk. For the park system, your protection is you have one-quarter of a mile. The next question is what about those that are afraid of dogs? They have nothing, nothing. In other words, if you were afraid of dogs, sorry, but I can't allow you... nothing for you. Maybe down the road some time, but today nothing. Is that fair? Is that right? I don't believe so. I think they deserve a portion of the path and I agree with the mayor that the portion of the path from this point here to this point here is approximately 2.5 miles. Why shouldn't this be an area that would be reserved for those that are afraid of dogs? What's wrong with that? Isn't that reasonable for those people or they don't count? And that's the difficulty that I have. In all of the things that I brought forward to you because I do not see that there is a fairness and representation of all of the people. I do have information on those that are opposed to dogs and I have information on those that support dogs. So, I want you to know that I do support dogs on the path. But please have some empathy, have some courtesy for others who are afraid and if they don't count, then I don't feel comfortable that I am not representing all of the people of the island. I believe that I want to represent all of the people. There is enough space for everybody, so why shouldn't we share this and you get a portion of it, they get a portion of it, the parks department is protected. I think that's a fair way to go. With that, thank you, Councilmember? • COUNCIL MEETING - 71 - May 12, 2010 Mr. Taylor: What about the 62 parks that don't allow dogs? Mr. Furfaro: You're out of order, I'm sorry. Mr. Taylor: You bet I am. Chair Asing: With that, I just want to make one comment. Mr. Furfaro: Go right ahead, Chairman Asing. Chair Asing: Thank you, put the light on. And that one comment is that...you want to put that slide back again... When I made reference to this portion here to the end, both Councilmember Furfaro and myself did a trial run from the Lihi Park on three... two... two golf carts we had, right... on two golf carts. It's a program that was budgeted, that we put money in the budget and we had the golf cart for, again, others that should be considered. Who's the others that should be considered? The elderly, the handicapped, those that cannot gain access or walk. They need some exercise, some outlet and we did a proposed ordinance. Now, we did go from this point all the way through and I'm sorry I don't have the pictures, but to Lihi, and we did a picnic lunch at the pavilion there and then came back again. I thought the program was very successful and so one of the proposals that I had proposed was to have that begin at this point here and it would be for the older kupunas with the golf cart and they would travel in this area here. The timeframes would be adjusted so that they would go only hours that would be limited. In other words, as an example, it would be maybe twice a week at 10 o'clock in the morning. That's what we did on the trial program that we did. And that would be in this particular area here. So, the thought process, as far as I'm concerned, what I was using was everybody gets a share. On top of that, you also get a dog park. That is in the budget. The budget that we passed has money in there for that. They are in the process of doing that. So, I dust want to let you know that that's where I'm coming from. I...I can count. I'm not, you know, that naive. I will lose and I won't win, but I want you to know my thought process and how I feel and why I feel the way I feel. So, I will be voting against it. It'll pass and life will go on. It is the process and I accept the process. I_am_not going_to fight.the process. But it is my duty to tell you as your representative why and what I do and what are my reasons for doing what I do. So I want to be upfront and honest with you. So with that, I'm going to be calling for the vote and can we take the vote now? Go ahead. Mr. Kaneshiro: Mr. Chair? Chair Asing: Yes. Mr. Kaneshiro: If I will...if I could, this has nothing to do with the presentation. You know, I gotta tell you, you know, I'm really disappointed that we have people sitting in the audience, sitting here while you're making a presentation and making loud comments. You know, I just gotta let you know that I have to let it be known on the record that, you know, it's... it's uncalled for because you were making a presentation with what you beheve in and I find that very disrespectful. Chair Asing: Well, sometimes it happens. You know tensions are up and I understand it, you know. I've been around a little bit and this is not the first time I've been on...I don't know what the vote is going to be, but my vote being cast on one side. This is not the first time. I've made these stands before, but COUNCIL MEETING ~ - 72 - • May 12, 2010 believing in what I did was right and you decide on my reasonings whether I'm wrong. If you think I'm wrong, I'm wrong. But you have my reasoning anyway and you have my feel on why I do the things I do. So with that, call for the vote. Mr. Nakamura: This is on Bill No. 2354, Draft 1, as amended. The motion to adopt Bill No. 2354, Draft 1, as amended to Bill No. 2354, Draft 2, was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami TOTAL - 6, AGAINST ADOPTION: Asing TOTAL - 1, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Thank you. ADJOURNMENT: There being no further business, the meeting was adjourned at 5:44 p.m. Respectfully submitted, PETER A. NAKAMURA County Clerk /wa ~ • i ATTACHMENT NO. 1 (May 12, 2010) FLOOR AMENDMENT Bill No. 2354, Draft 1, Relating to Parks and Recreation INTRODUCED BY: Jay Furfarocn Amend Bill No. 2354, Draft 1, Sec. 19-1.4 to read as follows: "Sec. 19-1.4 General Prohibitions Applicable To All Parks And Recreation Facilities. (a) No person at a park or recreation facility shall: (1) Abandon any vehicle or other personal property. (2) Leave any vehicle or other personal property unattended for longer than twenty-four (24) hours. (3) Operate or use any audio devices including radios, television sets, musical instruments or noise-producing devices such as electric generators, or other equipment driven by motors or engines, in such a manner and at such times that produces unreasonable noise as defined in HRS Chapter 711-1101, unless authorized by the Director or his designated representative on a permit. (4) Use utilities and appurtenances for non-recreational, commercial, or other activities, unless authorized by the Director or his designated representative on a permit. (5) Install aerial or other special radio, telephone, or television equipment, unless authorized by the Director or his designated representative on a permit. (6) Operate or use public address systems, whether fixed, portable or mounted on a vehicle, unless authorized by the Director or his designated representative on a permit. (7) Disturb or interfere with any other person occupying an area, or participating in any authorized activity. (8) Lead or let loose any dogs or other domestic animals, unless authorized by the Director or his designated representative on a permit, except for as set forth in Sec. 19-1.4(a)(21). (9) Use, carry or possess firearms and weapons of any description, except for bows and arrows for archery competitions and air rifles for air rifle competitions when authorized by the Director or his designated representative on a permit. (10) Drive or park motorized vehicles, including dune buggies, motorcycles, minicycles, and scooters, or ride horses, except on designated roads and parking areas, unless authorized by the Director or his designated representative by signage or on a permit. (11) Mark, deface, or remove any natural feature or natural resources. 1 ~ r ATTACHMENT NO. 1 ' (12) Destroy, injure, deface or remove in any manner any public building, sign, equipment, monument, marker or other structure. (13) Destroy, dig or remove tree, shrub or other plant, unless authorized by the Director or his designated representative on a permit. (14) Construct or erect any building or structure of whatever kind, whether permanent or temporary in character, unless authorized by the Director or his designated representative on a permit, except for a pre-fab and manufactured quick tent no larger than 20 feet x 20 feet for an event or gathering. (15) Start a fire except within designated grills, portable grills, and fireplaces. No fire shall be left unattended and all fires shall be fully extinguished after use. (16) Throw or drop a lighted cigarette, cigar, pipe heel, match or other burning material, except to start a fire within designated grills, portable grills, and fireplaces as allows in paragraph 15. (17) Use roller skates, roller blades, skateboards, or bicycles except in designated areas authorized by the Director or his designated representative through signage. (18) Dance on any gymnasium floor while wearing shoes, provided that dancing with shoes shall be permitted if a protective covering over the floor is used. (19) Dispose litter in other than designated trash receptacles. (20) Operate or use air-horns, unless authorized by the Director or his designated representative on a permit, or to start or end events or races. As used herein, air-horn means a device intended to produce a sound signal by means of compressed air or gas or exhaust gas. [(21) Dogs shall be permitted on the shared use path system provided, however, that dogs or other domestic animals shall not be allowed on the path system beginning at the makai end of Nalu Road (entrance to Lydgate Beach Park) to the end of the path system fronting Hikinaakala Heiau (see Exhibit A attached). The County Engineer shall post signs to designate the appropriate area where dogs are not allowed on the shared use path system.] X21) Dogs shall be permitted on the shared use path be~innin~ at the former "Sea Shell" restaurant at the north end of Wailua Beach extending northward to the end of the shared-use path at Kuna Bay including the parking lot and pathway from the trail head at Kealia Kai Comfort Station down to the coastal shared-use path. The County Engineer shall post sins to designate the appropriate area where dogs are allowed on the shared use path system. 2 v ATTACHMENT NO. 1 .:1 Any dog handler with a dog utilizing the shared use path system shall comply with the following: (i) Be in command and control of dog at all times. (ii) Have no more than two (2) dogs under his control. (iii) Immediately remove his dog if it exhibits aggressive behavior. (iv) Visibly carry the necessary instruments required for the removal and disposal of dog feces. (v) Plck up and dispose of any and all feces left by the dog. (vl) Have the dog wear at all times a valid current dog license tag that is clearly and visibly attached to the dog's collar. (vii) Have the dog on a leash that is no more than six (6) feet in length at all times. Retractable leashes shall not be allowed. (b) Entering or remaining in a park area when manifestly under the influence of alcohol, narcotics or other drugs, to a degree that may endanger oneself or other persons or property, or unreasonably annoy persons in the vicinity is prohibited. (c) County Employees authorized by the Director shall have the authority to issue citations and charges for any violations of the provisions of this Section. (d) It shall be unlawful to not comply with any provision of this section. Any person violating any provision of this section shall be punished by a fine of not less than One Hundred Dollars ($100.00) for the first offense. For the second violation of like offense, the punishment shall be a fine of not less than Two Hundred Dollars ($200.00). For all violations in excess of two (2) of like offense, the punishment shall be a fine of not less than Three Hundred Dollars ($300.00) and not more than Five Hundred Dollars ($500.00). In addition, the County shall have the right to avail itself of any civil remedy appropriate under the circumstances." (Material to be deleted is bracketed. New material is underscored.) (V \CS OFFICE FILES\AMENDMENTS\2354 dl\FA--JF Bill No. 2354, D1 dog on path 5-12-2010.doc) 3 ATTACHMENT NO. 2 (May 12, 2010) FLOOR AMENDMENT Bill No. 2354, Draft 1, Relating to Parks and Recreation INTRODUCED BY: Jay Furfaro Amend Bill No. 2354, Draft 1, Sec. 19-1.4 by adding a new subsection "(e)" to read as follows: "Sec. 19-1.4 General Prohibitions Applicable To All Parks And Recreation Facilities. (e) As it is anticipated that Phase III A (Wailua to Papaloa, including Kawaihau Spur) will be completed by the Fall 2011, which will provide approximately (1) additional mile of paved pathway, the Director of Parks and Recreation shall submit a report to the Council within ei hg teen (18) months of the approval of this ordinance, providing an evaluation of allowing dogs on the path. The report shall include, but not be limited to, any concerns, incidences of dog bites, citations, etc. At such time, the Council shall reassess the effectiveness of this ordinance which allows dogs on the path " (Material to be deleted is bracketed. New material is underscored.) N~\CS OFFICE FILES\AMENDMENTS\2354 dl\FA••DK Bill No. 2354, D 1 dog on path (PIS 5-12-2010_REVISED.doc) 1 i SPECIAL COUNCIL MEETING May 19, 2010 The Special Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, 3371-A Wilcox Road, Lihu`e, Kauai, on Wednesday, May 19, 2010 at 8:37 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Lani T. Kawahara Honorable Derek S.K. Kawakami Honorable Bill "Kaipo" Asing, Council Chair Chair Asing: Thank you. Can we have the first item please? PETER A. NAKAMURA, County Clerk: The first item is approval of the agenda. APPROVAL OF AGENDA: Mr. Furfaro moved for approval of the agenda as circulated, seconded by Mr, Kaneshiro, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: First matter on the agenda is a communication, communication C 2010-130. COMMUNICATION: C 2010-130 Communication (05/07/2010) from the Mayor, submitting his supplemental budget communication for Fiscal Year 2010-2011 and proposed amendments to the budget bills, pursuant to Section 19.02A of the Kauai County Charter: Mr. Kaneshiro moved to schedule public hearing on C 2010-130 on May 26, 2010 at 8:30 a.m. and that it thereafter be referred to the Council. Chair Asing: Thank you. Can I have a second please? Mr. Bynum: Second. Mr. Bynum seconded Mr. Kaneshiro's motion to schedule public hearing on C 2010-130 on May 26, 2010 at 8:30 a.m., and that it thereafter be referred to the Council. Chair Asing: Any discussion? If not all those in favor say, aye. SPECIAL COUNCIL METING - 2 - ~ May 19, 2010 The motion to schedule public hearing on C 2010-130 on May 26, 2010 at 8:30 a.m. and that it thereafter be referred to the Council was then put, and unanimously carried. Chair Asing: There being no other items on the agenda, the meeting is adjourned. Thank you. ADJOURNMENT: There being no further business, the meeting was adjourned at 9:38 a.m. Respectfully submitted, PETER A. NAKAMURA County Clerk /wa • COUNCIL MEETING May 26, 2010 The Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, 3371-A Wilcox Road, Lihu`e, Kauai, on Wednesday, May 26, 2010 at 9:21 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Lani T. Kawahara Honorable Bill "Kaipo" Asing, Council Chair EXCUSED: Honorable Derek S.K. Kawakami (present 10:27 a.m.) Chair Asing: Thank you. Can we have the first item? PETER A. NAKAMURA, County Clerk: Council Chair just for the record Councilmember Kawakami is excused, he'll be coming in around... in about two (2) hours I believe. Chair Asing: Thank you. With that can we have the first item? Mr. Nakamura: First item is the approval of the agenda. APPROVAL OF AGENDA: Mr. Chang moved for approval of the agenda as circulated, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please. . Mr. Nakamura: Next matter is approval of the Minutes of the following meetings of the Council. MINUTES of the following meetings of the Council: Council Meeting of March 17, 2010 Special Council Meeting of April 14, 2010 re: Board of Water Supply appointee interview Council Meeting of April 14, 2010 Pubhc Hearing of April 14, 2010 re: Bill No. 2347, Bill No. 2350, Bill No. 2351, Bill No. 2352, Bill No. 2353, and Bill No. 2354 Special Council Meeting of Apri121, 2010 Council Meeting of April 28, 2010 Special Council Meeting of May 5, 2010 Pubhc Hearing of May 12, 2010 re: Resolution No. 2010-34 and Bill No. 2362 Special Council Meeting of May 19, 2010 Mr. Bynum moved for approval of the Minutes as circulated, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please. COUNCIL MEETING ~ - 2 - ~ May 26, 2010 Mr. Nakamura: Next matters on page one (1) of the Council's agenda are communications for receipt, communication. COMMUNICATIONS: C 2010-130 Communication (05/07/2010) from the Mayor, submitting his supplemental budget communication for Fiscal Year 2010-2011 and proposed amendments to the budget bills, pursuant to Section 19.02A of the Kauai County Charter: Mr. Kaneshiro moved to receive C 2010-130 for the record, seconded by Mr. Chang, and unanimously carried. C 2010-131 Communication (05/04/2010) from the Director of Planning, transmitting the Planning Commission's recommendations to amend Chapter 8 of the Kauai County Code, as amended, relating to the Comprehensive Zoning Ordinance and Single Family Transient Vacation Rentals: Mr. Kaneshiro moved to receive C 2010-131 for the record, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Matters for receipt on page two (2) of the Council's agenda. Communications C 2010-132, C 2010-133 and C 2010-134. C 2010-132 Communication (5/11/2010) from Councilmember Daryl W. Kaneshiro, providing written disclosure of a possible conflict of interest and his recusal on Bill No. 2339 (CZO/Open District amendments to development standards) as he owns property located in the Open District: Mr. Chang moved to receive C 2010-132 for the record, seconded by Mr. Kaneshiro, and unanimously carried. C 2010-133 Communication (05/12/2010) from Councilmember Daryl W. Kaneshiro, providing written disclosure of a possible conflict of interest in regards to Bill No. 2318 (CZO Amendments to Permit Farm Worker Housing) because he owns property located in the Agriculture District: Mr. Chang moved to receive C 2010-133 for the record, seconded by Mr. Kaneshiro, and unanimously carried. C 2010-134 Communication (05/14/2010) from Vice Chair Jay Furfaro, transmitting for Council consideration, a Resolution to request that the Mayor consider including the County Council in the implementation of the Kauai Energy Sustainabihty Plan (KESP) by including the Chairs of the various Council Committees to work on developing the implementation plan and creating policy to support the Kauai Energy Sustainability Plan: Mr. Chang moved to receive C 2010-134 for the record, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matters on page two (2) of the Council's agenda are communications for approval. First communication for approval is communication C 2010-135. C 2010-135 Communication (04/27/2010) from the Fire Chief, requesting Council approval to apply for, receive, and expend the 2010 Department of Interior Rural Fire Assistance Grant of $7,115.00 to purchase wildland firefighting hoses and nozzles, to which the County's 10% cost share requirement will be fulfilled with in-kind services: Mr. Bynum moved to approve C 2010-135, seconded by Mr. Chang, and unanimously carried. COUNCIL MEETING. - 3 - • May 26, 2010 Chair Asing: Next item please. Mr. Nakamura: Next communication for approval is communication C 2010-136. C 2010-136 Communication (05/03/2010) from the Prosecuting Attorney, requesting Council approval to apply for, received and expend the FY 2009 Edward Bryne Memorial Justice Assistance Grant (JAG) of $105,000.00 for the continuation of the Drug Prosecution Unit, and to indemnify the State of Hawaii, Department of the Attorney General: Mr. Bynum moved to approve C 2010-136, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next communication for approval is communication C 2010-137. C 2010-137 Communication (05/03/2010) from the Prosecuting Attorney, requesting Council approval to apply for, receive and expend the FY 2009 Edward Byrne Memorial Justice Assistance Grant (JAG) of $128,000.00 for the continuation of the Domestic Violence Prosecution Unit, and to indemnify the State of Hawaii, Department of the Attorney General: Mr. Chang moved to approve C 2010-137, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next communication for approval is communication C 2010-138. C 2010-138 Communication (05/03/2010) from the Prosecuting Attorney, requesting Council approval to apply for, receive, and expend the FY 2009 Edward Byrne Memorial Justice Assistance Grant (JAG) of $110,000.00 for the implementation of the Community Prosecution Unit, and to indemnify the State of Hawaii, Department of the Attorney General: Mr. Kaneshiro moved to approve C 2010-138, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matter, at the top of page three (3) next communication for approval is communication C 2010-139. C 2010-139 Communication (05/03/2010) from the Prosecuting Attorney, requesting Council approval, to apply for, receive, and expend the FY 2009 Edward Byrne Memorial Justice Assistance Grant (JAG) of $134,000.00 for the continuation of the Property Crime Prosecution Unit, and to indemnify the State of Hawaii, Department of the Attorney General: Mr. Chang moved to approve C 2010-139, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next communication for approval is communication C 2010-140. C 2010-140 Communication (05/03/2010) from the Prosecuting Attorney, requesting Council approval to apply for, receive, and expend the FY 2009 Edward Byrne Memorial Justice Assistance Grant (JAG) of $57,500.00 for the implementation of a Firearms Prosecuting Unit, and to indemnify the State of COUNCIL MEETING • - 4 - ~ May 26, 2010 Hawaii, Department of the Attorney General: Mr. Kaneshiro moved to approve C 2010-140, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matters for approval are Legal Documents first Legal Document is communication C 2010-142. LEGAL DOCUMENT: C 2010-142 Communication (04/01/2010) from the Director of Parks and Recreation, requesting Council approval to secure to a shared-use path easement located on the parcel identified by Tax Map Key 4-4-3-02:12 to provide safe access along Papaloa Road as part of the Lydgate to Kapa`a Bike/Pedestrian Path. Grant of Easement by and between Niu Pia Land Company, Ltd., a Hawaii corporation (Grantor) and County of Kauai (Grantee) and Consolidated Maui, Inc., a Hawaii corporation, (Lessee), conveying Easement Y, a perpetual non-exclusive easement for a bike and pedestrian shared-use path for public access purposes. Mr. Bynum moved to approve C 2010-142, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Peter did we miss one, four, one (141)? Mr. Nakamura: Yes we did Council Chair, my apologies. I missed on page three (3) a communication for approval which is communication C 2010- 141. C 2010-141 Communication (05/10/2010) from the Fire Chief, requesting Council approval to expend $15,000.00 from the department's salaried account to purchase health & wellness and training equipment for the new Kaiakea Fire Station: Mr. Chang moved to approve C 2010-141, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: My apologizes Council Chair we're back on Legal Documents for approval communication C 2010-143. C 2010-143 Communication (05/05/2010) from the Mayor, requesting Council approval of a Dedication Deed conveying an interior roadway and a pedestrian access way as follows: • Dedication Deed by the Self-Help Housing Corporation of Hawaii (Grantor) conveying to the County of Kauai (Grantee) Lot 1900 and Lot 1901, Puhi Self-Help Housing Subdivision, for roadway purposes. Mr. Chang moved to approve C 2010-143, seconded by Mr. Bynum, and unanimously carried. Chair Asing: For the record I just would like to congratulate Self-Help Housing for what they're doing. They're just doing a fantastic job I happen to pass there every few days and the project is just moving along and I'm very pleased at what is happening there. With that can I have the next item please? Mr. Nakamura: Next legal... COUNCIL MEETING • - 5 - • May 26, 2010 Chair Asing: Oh did we vote on it? Mr. Nakamura: No. Chair Asing: No. Mr. Nakamura: There was a motion and a seconded. All those in favor say "aye" Councilmembers: Aye. The motion for approval was then put, and unanimously carried. Chair Asing: Motion carried. Next item please. Mr. Nakamura: Last Legal Document for approval is communication C 2010-144. C 2010-144 Communication (05/14/2010) from the Director of Housing, requesting Council approval of the Fourth Amended Agreement (Kaua`i Lagoons Affordable Housing Ordinance No. PM-2006-383) to assist the sale of Kamamalu Condominium units, and to authorize the County Clerk to execute this Fourth Amended Agreement. • Fourth Amended Agreement (Kaua`i Lagoons Affordable Housing) Mr. Kaneshiro moved to approve C 2010-144, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matters are claims at the bottom of page three (3) communications C 2010-145 and C 2010-146. CLAIMS: C 2010-145 Communication (05/03/2010) from the County Clerk, transmitting a claim filed against the County of Kauai by Barbara Schweitzer for vehicle damage, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2010-145 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Kaneshiro, and unanimously carried. C 2010-146 Communication (05/19/2010) from the County Clerk, transmitting a claim against the County of Kauai by Lihu`e Court Townhouses Corporation for real property tax adjustment, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2010-146 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matter for approval on page four (4) are Committee Reports. From your Committee on Budget & Finance, Committee Reports CR-B&F 2010-12, CR-B&F 2010-13, CR-B&F 2010-14, CR-B&F 2010-15, CR-B&F 2010-16, CR-B&F 2010-17, CR-B&F 2010-18 and CR-B&F 2010-19. COUNCIL MEETING • - 6 - ~ May 26, 2010 COMMITTEE REPORTS: A report (No. CR-B&F 2010-12) submitted by the Budget & Finance Committee, recommending that the following be received for the record: "B&F 2010-2 -Communication (5/11/2010) from Daryl W. Kaneshiro, Budget & Finance Chair, transmitting the Budget & Finance's proposed amendments (+/- sheet) to Resolution No. 2010-33 (real property tax sales), Bill No. 2356 (Operating Budget), and Bill No. 2357 (CIP Budget)." Mr. Kaneshiro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. A report (No. CR-B&F 2010-13) submitted by the Budget & Finance Committee, recommending that the following be approved as amended on second and final reading: "Resolution No. 2010-33 -RESOLUTION ESTABLISHING THE REAL PROPERTY TAX RATES FOR THE FISCAL YEAR JULY 1, 2010 TO JUNE 30, 2011 FOR THE COUNTY OF KAUA`I," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Resolution No. 2010-33, Draft 1.) A report (No. CR-B&F 2010-14) submitted by the Budget & Finance Committee, recommending that the following be approved as amended on second and final reading: "Bill No. 2356 - A BILL FOR AN ORDINANCE RELATING TO THE OPERATING BUDGET AND FINANCING THEREOF THE FISCAL YEAR JULY 1, 2010 TO JUNE 30, 2011," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for BLlI No. 2356, Draft 1.) A report (No. CR-B&F 2010-15) submitted by the Budget & Finance Committee, recommending that the following be approved as amended on second and final reading: "Bill No. 2357 - A BILL FOR AN ORDINANCE RELATING TO CAPITAL IMPROVEMENTS AND FINANCING THEREOF FOR THE FISCAL YEAR JULY 1, 2010 TO JUNE 30, 2011," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2357, Draft 1.) A report (No. CR-B&F 2010-16) submitted by the Budget & Finance Committee, recommending that the following be approved on second and final reading: "Bill No. 2358 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 23, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO CONCESSIONS AT SPOUTING HORN," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2358.) COUNCIL MEETING • - 7 - • May 26, 2010 A report (No. CR-B&F 2010-17) submitted by the Budget & Finance Committee, recommending that the following be approved on second and final reading: "Bill No. 2359 - A BILL FOR AN ORDINANCE AMENDING SECTION 17-1.1 OF THE KAUAI COUNTY CODE 1987, RELATING TO RENEWAL FEE FOR MOTOR VEHICLE OPERATOR'S LICENSE," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2359.) A report (No. CR-B&F 2010-18) submitted by the Budget & Finance Committee, recommending that the following be approved on second and final reading: "Bill No. 2360 - A BILL FOR AN ORDINANCE AMENDING SECTION 5-2.4 OF THE KAUAI COUNTY CODE 1987, RELATING TO MOTOR VEHICLE CERTIFICATE OF OWNERSHIP AND REGISTRATION FEES," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2360.) A report (No. CR-B&F 2010-19) submitted by the Budget & Finance Committee, recommending that the following be approved on second and final reading: "Bill No. 2362 - AN ORDINANCE AMENDING ORDINANCE NO. B-2009-691, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2009 TO JUNE 30, 2010, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE BOND FUND," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2362.) A report (No. CR-PKT 2010-03) submitted by the Parks/Transportation Committee, recommending that the following be approved on second and final reading: "Resolution No. 2010-34 - RESOLUTION AUTHORIZING THE ACQUISITION OF THE FEE SIMPLE INTEREST IN LANDS REQUIRED FOR PUBLIC USE, TO WIT: THE PEDESTRIAN AND BICYCLE PATH WHICH CONSTITUTES PART OF PUBLIC PARK SYSTEM, SITUATE AT WAIPOULI, DISTRICT OF KAWAIHAU, COUNTY OF KAUAI, HAWAII, AND DETERMINING AND DECLARING THE NECESSITY OF THE ACQUISITION THEREOF BY EMINENT DOMAIN," Mr. Kaneshiro moved for approval of the report, seconded by Ms. Kawahara. (See later Resolution No. 2010-34.) Chair Asing: With that what I'd like to do is suspend the rules, Glenn? There being no objections, the rules were suspended. COUNCIL MEETING • - 8 - • May 26, 2010 GLENN MICKENS: Thank you Kaipo, for the record Glenn Mickens. You have a copy of my testimony let me read it for the record please. It's regarding this 2010-34. You remember that I asked for more information on Resolution 2010- 34 last week as I do not understand all the legal language nor do I interpret maps that well. The numbers I added up in the Resolution were sixty-three thousand one hundred (inaudible) and Jay said he would accept those numbers. And for informational purposes Jay has passed along the Attorney General... the County Attorney's opinion on this so I do understand some of it better. From the Garden Island article May 22 according to Mary Daubert, the total quote, the total land to be acquired by eminent domain is two thousand seven hundred twenty-four (2,724) square feet of oceanfront property, so perhaps I was adding wrong figures but that is why I asked the Council for more information since you members were tasked with addressing the bill, it's still a little confusing to me about the total number of figures but as I add the figures up, I come to more than that... two thousand that Mary Daubert... two thousand seven, twenty-four. I also asked how much this acquisition would cost the tax payers; Jay told me that would depend on if the transaction were friendly or hostile before it (inaudible) and again this is where he has passed that along with the County Attorney, which I appreciate. However, in the same article it says quote it will cost roughly a hundred thousand dollars to condemn the land according to Councilmember Tim Bynum. How does Tim know this amount when as Jay said we won't know if this transaction is a friendly or condemnation? Wasn't this Council premature in passing the Resolution before knowing exactly what the cost would be? Are we just going to rubber stamp something before we know what the total figure will be. I also testified the DOT cost estimates for design, right-of--way and construction of phase 3B, 4, 5, 6 and C for this path is a whooping sixty million four hundred twenty thousand dollars which doesn't include any land acquisition or condemnation. Tim has said from the beginning of this project that virtually all the money will come from Federal funds. if the County decides to ban the project, the Feds will spend the money elsewhere First of the eighty percent of Fed money will be used for this project is harmony, not free money but our tax dollars. Just the same as the twenty percent coming from the local taxes. Second, from the latest DOT estimates this total project could cost a hundred million dollars or more which means that our twenty percent match would still be twenty million dollars or more... and that figure doesn't include land acquisition that we're talking about now or condemnation. Huge maintenance costs and mass of hours of staff time and legal issues that County Attorneys must research and address. Fed funds are drying up and thus DOT is asking the public to prioritize the needed issues on Kauai including those for the path. Let's face it, this path as my good friend Ray Chuan would say is a feel good project like motherhood and apple pie. On the practical side and on any priorities basis for those issues that seriously need help, this path isn't on the radar screen... (3 minutes Mr. Chair) Mr. Mickens: for a need or use... one more paragraph... if study is done for a cost use based the cost per usage would be astronomical. If money were not a (inaudible) object I would have absolutely no problem building this path around the entire island if somebody wanted to but money is very tight and these are trying times for everyone and our tax dollars should be used for only the most needed projects. This path is not one of them. Any questions, I'll be happy to try to answer them for you. Mr. Furfaro: Glenn, I just need to revisit this a little bit... so everyone is clear, I gave you a copy of subsection 95 Section 5... Mr. Mickens: Right. COUNCIL MEETING • - 9 - • May 26, 2010 Mr. Furfaro: That deals with confidentiality in negotiations. It explains that for the purpose of acquisition, condemnation for a period of negotiations on acquisitions and/or negotiations at a confidential for labor in that section, the Sunshine Law allows a confidentiality agreement on negotiating and bargaining for land and labor and so forth. So my cautions are until that negotiation is complete through the request of the negotiating team through the County Attorney's Office, we're not disclosing the amount. I cannot speak for Mary Daubert or others that gave you information, but I do want to caution you, I reference the last time that we would use your calculated square footage... Mr. Mickens: Right. Mr. Furfaro: Because there is actually two (2)... two (2) parts to this. There's a friendly portion which I believe is the twenty-seven hundred, that Mary Daubert referred to... Mr. Mickens: Right. Mr. Furfaro: And then there is your number of sixty-five... Mr. Mickens: Sixty-two thousand... Mr. Furfaro: Sixty-two thousand, which is actually being negotiated as an acquisition. Mr. Mickens: Right. Mr. Furfaro: That's where we need to protect the confidentiality. Mr. Mickens: Right. Mr. Furfaro: And we are allowed to do it under subsection 95, section 5, and I think I gave you a copy of that. Mr. Mickens: Yes you did and I appreciate it. Mr. Furfaro: Thank you. Mr. Mickens: And as you're pointing out until that whole thing is known, whether it's friendly or whether it's hostile, whatever the takeover happens to be, for that total area, we won't know the amount of land or we won't know the or... or we will know the amount of land but we won't know the price for it... Mr. Furfaro: I think you know if you try to estimate a number, it wouldn't be unreasonable to put a number out there but I think it should be quoted, it's a guesstimate... Mr. Mickens: Sure because it is beachfront property and beachfront property as you well know is astronomical. Mr. Furfaro: Well unless you can negotiate a friendly... Mr. Mickens: Yes, yes. Mr. Furfaro: And therefore it needs to be confidential. Mr. Mickens: Right, right. Thank you Jay. COUNCIL MEETING • - 10 - • May 26, 2010 Mr. Furfaro: That's all... I dust... Mr. Mickens: Thank you. Chair Asing: I'm sorry... yes go ahead... I'm sorry Councilmember Bynum did you have a question? Mr. Bynum: Oh when you call the meeting back to order. Chair Asing: Okay meeting... no... the rules are still suspended. Mel? MELVIN RAPOZO: Thank you Mr. Chair. Mel Rapozo for the record. I question the amount of land as well, I read the newspaper article and the newspaper article clearly said two thousand seven hundred somewhat square feet and as I read the attachment to the Reso, parcel one (1)... within parcel one (1) there is lot one (1) which alone is eighteen thousand three hundred square feet. There's also another lot (h) which is twenty thousand five hundred twenty-one square feet so obviously the number that was printed in the paper is wrong and it is quite a bit more. The other question and I'm reading the communication from the Administration where... they're saying that this is the only practical way to acquire the property and we're talking about parcel two (2). Parcel one (1) obviously they did appear to have received the quitclaim deed but they want to do... they want to do a condemnation as well to make sure no one can come later. But parcel two (2) is the one that I think is of concern because it's... it belongs to the apartment owners... Association of Apartment Owners of Kapa`a Shore. I've been trying to connect with them and from what I understand the Administration is going to have a difficult time contacting all owners and this is the only practical way, well I beg to differ because really, I'm not sure what efforts and I haven't heard this Council ask the question, what efforts has the Administration done, hasn't been on the apartment owners... they had a meeting yesterday by the way and it wasn't on the agenda but I'm curious what efforts did this County made to try to acquire this property in a peaceful fashion, I have spoken to a few of you and all of you... the ones that I have spoken to said oh Mel don't worry it's a friendly condemnation. Friendly condemnation is oxymoron. Condemnation is when you go after a property because you cannot negotiate a deal and yes it may be hostile or it may be none hostile but it's never a friendly condemnation. You may have someone not oppose it because they simply don't have the funds but today you just, just... just today you approve in a legal document the transfer of ownership or a transfer of an easement for the bike path. Why isn't that being approached for these parcels? Why do we have to go condemnation? Simply because I think the anticipation is that there will be opposition. My concern right now Mr. Chair is not so much going after this land to complete the bike path but the timing... to enter condemnation proceedings when we just told our employees you have to go home two (2) days a month, we going cut your pay every month by two (2) days and yet we still have the resources to go after condemnation. I think the timing is bad. I don't think we've exhausted all the means. Have we gone on the Association of Apartment Owners agenda, we have explained to them what we're trying to do? Have we tried to make contact to the owners? Or are we just trying to do a short cut which will cost the tax payers money? That's my only concern and I'm hoping that you can ask these questions, I understand it's up for vote today but it can go back to the Committee and I would ask that the questions be asked because beheve me, I don't think it's as friendly as you folks are being told. Thank you. Chair Asing: Hang on... Mel? Councilmember Furfaro. COUNCIL MEETING • - 11 - • May 26, 2010 Mr. Furfaro: Yes. Thank you for being here today Mel. Now I want to let you know there is a friendly condemnation and there is an unfriendly condemnation, that terminology does exist. And I think you and I haven't spoke but I do want you to know that what I understand in this approach on the friendly condemnation is the Association of Apartments Owners and there AOAO has... they can change certain things in the bylaws with up to seventy-five percent of the confirm vote but in this particular case, the condominium is actually leasehold so I think the Administration because it's leasehold property, is only dealing with a single owner. Mr. Rapozo: Correct. Mr. Furfaro: I just want to clarify that. I also you know... I don't know all the negotiations behind the scenes but you know... you're right in a sense that it's probably not on the agenda of the Association because... when they changed ownership that question becomes what happens to the lease rent, who does it go to as the new owner. Mr. Rapozo: Correct. Mr. Furfaro: And I have something that was sent over to answer that question. So I just want to make sure you know I had an opportunity to share my thoughts on it. They are a leasehold group of apartment owners but the landowner is a single agent. Mr. Rapozo: Correct. Mr. Furfaro: Okay. Mr. Rapozo: And I guess my concern is anyone of those leasehold... anyone of those apartment owners may have an opportunity to contest the condemnation and that's... Mr. Furfaro: Well actually I think they can only contest the rate of the fee, you know how much do they pay for the fee but we'll let our legal department (inaudible) but thank you for your testimony Mel. Mr. Rapozo: Thank you. Chair Asing: With that Councilmember Bynum. Mr. Bynum: Just to say that Councilmember Furfaro is correct... the landowner is one (1) owner who is very cooperative with this situation. The AOA... Mr. Furfaro: Excuse me Tim; I don't know how cooperative it is... I just know... Mr. Bynum: Well that's what I... Mr. Furfaro: Okay that's you. Mr. Bynum: There's one (1) landowner who is cooperative, at least from what I've been told but the AOAO... this is... this isn't fifty-one (51) condominium owners, it's a timeshare. They're thousands of them. Mr. Rapozo: Correct. COUNCIL MEETING • - 12 - • May 26, 2010 Mr. Bynum: And the logistics of tracking down a thousand people who live primarily on the mainland and all around the world, you know made this... you know logical to go this route because of the logistical issues and you know this is an amenity you know we're talking about a little strip of easement land, that is the twenty-seven hundred square feet, or whatever it was and it's putting in an amenity that those apartment owners will enjoy. The larger parcels are the road... those two (2) roads next to Kapa`a Shores... Mr. Rapozo: Correct. Mr. Bynum: And they've already been quitclaimed and there's no funds involved in that. Mr. Rapozo: Right. Mr. Bynum: So that's my understanding based on my research... Mr. Rapozo: But we're still going after condemnation proceedings on those quitclaimed properties. Mr. Bynum: For... yeah... I think you characterize it perhaps correctly you know just to nail it down. Mr. Rapozo: Right and I guess my concern is what... what is the... at the end of the day what is the cost to the county? Mr. Bynum: At the end of the day... Mr. Rapozo: And I heard Jay's explanation... Mr. Bynum: Of my understanding... Mr. Rapozo: Earlier and it's difficult to determine right now, I don't believe that the apartment owners... the Association of Apartment Owners had an opportunity to review the request and I just haven't heard that asked and that's what I'm asking, is there a cheaper way to get through this? I don't believe the apartment owners or the timeshare owners are going to have a problem with it, I'm dust questioning... this county I don't know when's the last time condemnation occurred. But we all know that condemnation can be very expensive. Mr. Bynum: Well... yeah I think the logistics of contacting thousands of owners would be difficult but and... Mr. Rapozo: Well you contact the association... Mr. Bynum: And the... Mr. Rapozo: Of Apartment Owners, not individually... that's why they have the association in place, that's why they're there to address the issues of the Association of Apartment Owners. Mr. Bynum: And the negotiation a settlement amount is confidential. Mr. Rapozo: Right. COUNCIL MEETING • - 13 - • May 26, 2010 Mr. Bynum: And you know maybe I was imprudent by saying I've been told that a rough gestimate is around a hundred thousand or less... Mr. Rapozo: Yeah and I just... Mr. Bynum: And that won't be County funds... now I agree with Mr. Mickens that it's all public money right but it's Federal funds that and I'll address some of the things Glenn said when we call the meeting back to order. Mr. Rapozo: Okay. Thank you. Chair Asing: Thank you. Any other questions? Thank you. Is there anyone else? JOE ROSA: Good morning members of the Council. For the record Joe Rosa. What I had to say is a lot of things were taken care by Mr. Mickens and Mel Rapozo. So far from this Resolution parcels of the map that there is in there and I did a lot of work with maps. I was able to get information out of two (2) and I had to get use a magnifying glass to read those small little figures. There was one (1) that is totally, I couldn't read it so I'm going to have it blown up today, so I can read it. On the one (1) parcel along Kuhi`o Highway in going down to Ala Road, two thousand nine hundred and seven square feet, now out of that there seventeen, eighty-nine is on Ala Road which is requiring the property from landowners, why don't you use the shoulder on the county road? Why take it away from somebody's residences when you're going already on the front part of it? You can save bucks on that seventeen thousand eight hundred (inaudible) square feet on the road, property owners. Those are the kinds of things... eh don't just spend our tax payer's money. Use the county property because Ala Road (inaudible) will never become a four lane (inaudible)... because it's only from Kuhi`o Highway to the beach. You think you're going to put a (inaudible) four lane highway in there? Save those bucks, you people get engineers, consultants but look? Use your county property and like Mr. Mickens mentioned probably along the State Highway it cost money. That's why people who have property along Federal Highway pay higher taxes so beware of those kinds of things, that... don't shove things down people's throats, tax payers, homeowners... look into those kinds of things. Have a foresight, I'm a tax payer you know and I'm speaking for the rest of tax payers, homeowners... the State intends to improve along the Kuhi`o Highway too, why don't you people work with the State and then coincide the work for the bike path in that area with the State, even if you have to wait. Think of the money saved. You know we... we are being taxed up to our necks already and if it's a thing you can utilize, use the county property. Like I said Ala Road and the other road that you guys are going to take, use your county shoulder area. Give those landowners... you people bleed them enough with taxes and all... but think about it. And like I just said from the start this thing wasn't planned. There was no documentation to show the need of a bike path and everything and what started out as a form for transportation to ease the transportation, it not got any difference as far as the cause, I traveled to Kapa`a the other afternoon and man... it's just as bad from the start, no bikeways, no people using it to get the cars off the highway... (3 minutes) Mr. Rosa: so you know that's what I had to say so... please use county property where it's available like Ala Road, use that shoulder area that you have, it's not going to be used for our lifetime, let's put it that way. Thank you. ' COUNCIL MEETING ~ - 14 - • May 26, 2010 Chair Asing: Thank you. Any questions for Joe? If not thank you very much. Is there anyone else? Thank you Joe. Mr. Rosa: Thank you. WALDEEN PALMEIRA: Aloha Council. Chair Asing and Councilmembers. Aloha my name is Waldeen Palmeira of Hui Namaka Iwa O Wailua Nui Ohanohano. Unfortunately I did miss the original I guess item involving the Legal Document that was already completed, is that true? And that involves TMK 4-4-3- 02 (12) on Papaloa Road in Wailua and all of the TMK's and the LCA's and the land court application awards that are identified on the Resolution, I am... we are addressing at this point, could I just ask for clarification... is this again going to... is this a final vote today? Approval or does it go to... Chair Asing: Yes. The answer is yes. Ms. Palmeira: Okay. Chair Asing: For the public's information we are really discussing now the Committee Report and we are not on the Resolution. But I had let the first person speak on this so I'll just go ahead and continue the process as we're doing currently but the, the Resolution is on page five (5) and it is Resolution No. it's the second Resolution number 2010-34 so that's okay we can do the decision on the Committee Report because this is really the Committee Report. And the Committee acted on it and this report is being transferred here to the Council and we are accepting the report. Ms. Palmeira: Alright thank you. Chair Asing: But the Resolution is on the agenda which will be taking care of shortly. Ms. Palmeira: Okay thank you very much for the explanation. For the record Hui Namaka Iwa O Wailua Nui Ohanohano is opposed to the approval of this Resolution for the condemnation of these... all of these parcels identified in the Resolution, all of the TMK's identified. Which I will not go through all of the TMK's involved. And this is a matter of breaches of environmental law and the National Historic Preservation Act in which this bike path is subject to and I appreciate Mel Rapozo, as well as Mr. Mickens and all who have testified on behalf of this... against this in terms of the funding, I'm not here to discuss the funding, I am here to discuss the severe breaches of the National Environmental Protection Act, as well as the National Historic Preservation Act, Section 4F of the Department of Transportation Act as well as various other statutes involved. I dust wanted to before getting into a few points, I just wanted to let you know that last week Wednesday we forwarded... I forwarded to you as well two (2) letters concerning an archeological inventory survey for the Wailua portion of this path, we are talking about the same path so when you are talking about a NIPA Document which this part of the bike path does address, what happened in the re-evaluation of this project is that this section was added into the, into the bike path corridor sort of speak, without the consideration of the finding of significant impact to the environment including secondary impacts to the culture and on the National Preservation Act component which this bike path is pursuant to and obligated to be following is that what happened last week Wednesday is that that so-called archeological inventory survey was not processed correctly. The State Department of Transportation's permit to perform on State Highways subsurface testing is not the correct procedures for dealing with and for identification of a historic burial ground. Now I mention this... COUNCIL MEETING • - 15 - ~ Ma 26, 2010 Y (3 minutes) Ms. Palmeira: Right now because the questions that you are about to approve also involves burial grounds throughout the Shoreline, throughout... on these areas and to be sure that this covered under the State Historic Preservation Division, that is not clear at this point and so I want to inform you that this project is, is in violation on many terms and let me just again I did mention that the Federal Highways as well as the State of Hawaii, Department of Transportation and the County of Kauai failed to include supplementary studies of the significant impacts by adding this alternative which was not an alternative of the, of the FEA. Failure to account for again accumulative adverse effects to traditional Hawaiian burial sites and the APA of the new alignment and to significant historic properties and traditional properties and to native inhabitants of Wailua as well as local populations. Failure to require a NIPA... Chair Asing: Waldene? Your three (3) minutes has expired but I'm going to let you finish up with three (3) more minutes. Ms. Palmeira: Okay failure to provide public review of reevaluation documents and public notice of the entire reevaluation document through the NIPA process under title 23 part 771 point 129. The segmentation of the Lydgate to Kapa`a multi-use path and the Kuhi`o Highway widening project, because the Kuhi`o Highway widening project is now available in 2009 at the time and 2010 at the time of this reevaluation, they were supposed to take into an count the significant impacts by the segmentation of these projects. Failure to... again the compliance with the National Historic Preservation Act, we are in communication with the Advisory Council for Historic Preservation who will be addressing this with us in the very near future. Again failure to conduct a cultural impact assessment for this project, it seems that the existing cultural traditional practices are in jeopardy as well as traditional accesses. This access route on Papaloa Road, we've talked about it before, last year and without the... with this area being used as a bike path, the parking areas that people normally use to access Kukui Heanu and other areas there are not available. Again one of the main failures it has to do with this bike path being placed on Wailua Beach and Kuhi`o Highway and from there connecting to Papaloa Road, there is a major violation of Section 4F, I've mentioned it before and what that means is that, Wailua Beach is a Section 4F protected beach because of the historic properties and the lack of the identification and the inclusion of native Hawaiians and native inhabitants of this archipelago was not included since 2004, this is 2010. In 6 years they have excluded native Hawaiians from identifying the significant properties of Wailua Beach including burial grounds in which there are HRS 6E 42 obligations of the project to fulfill and this has to do with a known burial ground. Given... (6 minutes) Chair Asing: Your time has expired do you want to finish up? Ms. Palmeira: Okay one last thing. Chair Asing: Go ahead. Ms. Palmeira: Another failure and this is of the County but it is also a Federal violation concerns the Coastal Zone Management Act. Now since the reevaluation took place as of November of last year, there were significant changes to the shoreline in which the shoreline is much closer to the APA of this project. There needs to be a reevaluation as well as an updated SMA for this to take place... COUNCIL MEETING ~ - 16 - • May 26, 2010 Chair Asing: Thank you. Ms. Palmera: And that is also found in the statutes for shoreline HRS 205 A. Chair Asing: Thank you. Ms. Palmera: And so in conclusion... Chair Asing: Is there... Ms. Palmera: I'd like to again voice our opposition, this path is turning out to be one that does not take into consideration the significant impacts on our culture and on our people and the usage of Wailua Beach for example done... Chair Asing: Okay thank you... AL CASTILLO (County Attorney): Mr. Chair, Mr. Chair... Chair Asing: Yes. Mr. Castillo: You've granted... Chair Asing: Hang on... Mr. Castillo: This person... Chair Asing: Let me finish up... Thank you Waldene. Ms. Palmeira: I'm just here to inform you. Chair Asing: Yes and thank you. Ms. Palmeira: And I would hope that you... Chair Asing: Waldene... Ms. Palmeira: The County... Chair Asing: I have given you the opportunity... would you please... Ms. Palmeira: I would just hope... Chair Asing: Would you please respect this Council, we have given you more than... Ms. Palmeira: I would just ask the Council to take into consideration... Mr. Castillo: Mr. Chair, Mr. Chair... Chair Asing: Yes. COUNCIL MEETING ~ - 17 - ~ Ma 26, 2010 Y Mr. Castillo: You know the subject matter that this person is talking about, you granted her a wide latitude. The agenda item is specifically for the acquisition of a specific parcel of land... Chair Asing: Thank you. Mr. Castillo: She's ventured into areas that's outside of the agenda. Ms. Palmeira: It does relate to the same project. Chair Asing: Thank you. Ms. Palmeira: Thank you. Chair Asing: Is there anyone else? Thank you. LIKO MARTIN: ~ Good morning Council Chair and members of the ' Council. So far as the proceedings to condemn land. (state your name) Mr. Martin: Yeah my name is Liko Martin. I am a (inaudible) decent of Wailua Nui O Hanohano and I'm very upset with the way that the issues have been presented as Waldeen but hke the gentleman said, specifically to the agenda item. Are we in agreement that the State constitution adopted the United States Federal Constitution? Can I have an answer on that? Chair Asing: No... well why don't you continue... Mr. Martin: Well the Federal... well what I'm trying to point out, I mean it's like if you don't know what rules you're operating under then it's difficult to make proper decisions and wherever the Federal Constitution goes and the Federal Constitution of the United States applies in the Hawaiian Islands in the (inaudible) and I think I'm correct okay? Chair Asing: You know... Liko let me do this... Mr. Martin: Yeah. Chair Asing: The item is the condemnation... Mr. Martin: Yes. Chair Asing: Of a particular area... Mr. Martin: Yes. Chair Asing: That's the discussion item. Mr. Martin: Yes. Chair Asing: So I'd like for you to stay as close as possible to that item and not move to other associated items... Mr. Martin: Okay. COUNCIL MEETING - 18 - ~ May 26, 2010 Chair Asing: Connected with the path. Mr. Martin: Okay. Chair Asing: So stay on the item. This item is the condemnation portion of the path, only. Mr. Martin: Well... specifically then I'd like to give notice to this Council, to the County that the proceedings to condemn land is a violation of the 4tn (inaudible) convention. And the laws and customs of war on land and the annex regulations which specifically prohibit an occupying entity which the county has a municipality of the corporation called the State of Hawaii is functioning under the US Federal Constitution. And it is forbidden in (inaudible) to confiscate private lands. Amongst other things that (inaudible) forbids and I would say that in your Committee Report possibly you would bring this back to Committee and that's all I have to say very simple at what point and at what Court of component jurisdiction these issues can be taken up because it's pretty rampant, I understand that. But I just wanted to make that point in the event that in the future individuals or entities, corporate entities will be taken to task on this issue condemnation of private lands is forbidden under the articles of (inaudible) 4. Thank you very much. Chair Asing: Thank you. Is there anyone else? Good morning JoAnn. JOANN YUKIMURA: Good morning Council Chair, Council members. I really have about three (3) sentences to say. My name is JoAnn Yukimura for the record. This condemnation may not have been necessary if we had done an EIS and really looked at none engineering solutions for the Highway problem in which case perhaps we would have been able to accommodate both the multi-use bike path and the solution for the congestion so there's a serious question as to why an EIS wasn't done. Chair Asing: Thank you. Ms. Yukimura: Thank you. Chair Asing: Is there anyone else? If not I'd like to... CAREN DIAMOND: Aloha Caren Diamond. Along with the EIS not being done this project has been segmented in ways that make it difficult for all of it to occur. I'd ask this body to not approve this expenditure, not condemn this land and actually bring this bike path project back for an EIS and for a comprehensive review. It's been segmented in all its aspects and all the development that's happened at Wailua has been segmented so that you have this really sad situation right now, so I urge you to deny this today, thank you. Chair Asing: Thank you. Is there anyone else? Mr. Taylor. KEN TAYLOR: Chair, members of the Commission... or Council, my name is Ken Taylor. As most of you know I've been a big supporter of the bike path from the very beginning but saying that I would like to say that there has been a lot of mishandling of this whole process and I think the earlier speakers today have made some really good points as to why you should not move forward with this at this time and go back to finishing the project properly and then bring it back and let's move forward, thank you. COUNCIL MEETING ~ - 19 - ~ May 26, 2010 Chair Asing: Thank you. With that? JoAnn? Ms. Yukimura: JoAnn Yukimura. I just want to clarify that the EIS I'm talking about is not for the path but for the road widening project. Thank you. There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows: Chair Asing: Thank you. Is there anyone else? If not I'd like to call the meeting back to order. We have a motion... Mr. Nakamura: And a second. Chair Asing: And a second. Mr. Nakamura: For the Parks and Transportation Committee Reports. Chair Asing: On the Committee Report. So what I'd like to do is move this, this report and we get to the Resolution later. So with that I believe we have a motion to approve, we have a second, all those in favor say "aye". Councilmembers: Aye. Chair Asing: Motion carried. Next item please. The motion for approval of Committee Report No. CR-PKT 2010-04 was then put, and unanimously carried. Mr. Nakamura: Next Committee Reports for approval... Mr. Furfaro: Excuse me Mr. Clerk. I want my vote recorded as a silent. A report (No. CR-PKT 2010-04) submitted by the Parks/Transportation Committee, recommending that the following be approved as amended on second and final reading: "Bill No. 2348 - A BILL FOR AN ORDINANCE AMENDING CHAPTER 19, ARTICLE 3, SECTION 19-3.2 AND SECTION 19-3.3 OF THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO PLAYING FEES AND REGULATION OF PLAY AT THE WAILUA GOLF COURSE," Mr. Kaneshiro moved for approval of the report, seconded by Ms. Kawahara, and unanimously carried. (See later for Bill No. 2348, Draft 1.) Mr. Nakamura: So noted Vice Chair. Next Committee Reports for approval are from the Planning Committee, Committee Reports CR... at the bottom of page five (5), CR-PL 2010-11, CR-PL 2010-12 and on... those are the two (2) Committee Reports from Planning. COUNCIL MEETING - 20 - ~ May 26, 2010 A report (No. CR-PL 2010-11) submitted by the Planning Committee, recommending that the following be approved as amended on second and final reading: "Bill No. 2318, Draft 2 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Farm Worker Housing)," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2318, Draft 3) A report (No. CR-PL 2010-12) submitted by the Planning Committee, recommending that the following be approved as amended on second and final reading: "Bill No. 2350 - A BILL FOR AN ORDINANCE AMENDING CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO ZONING DESIGNATION IN WAIMEA, KAUAI (C. Ahko Inc., et al., Applicant)," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2350, Draft 1) Mr. Nakamura: Last Committee Report for approval at the top of page six (6) is from your Public Works/Elderly Affairs Committee, Committee Report CR-PWE 2010-06. A report (No. CR-PWE 2010-06) submitted by the Public Works/Elderly Affairs Committee, recommending that the following be received for the record: "PWE 2010-3 -Communication (2/26/2010) from Committee Chair Tim Bynum, requesting the presence of the Administration to discuss the status of the Hardy Street Improvements and Traffic Circulation in the Lihu`e Town Area," Mr. Bynum moved for approval of the report, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matters are Resolution. Council Chair at this time on Resolution No. 2010-33 if we could move that to be grouped together with the Operating Budget and the Capital Budget bills? And if we could move to the next Resolution, Resolution No. 2010-34. RESOLUTION: Resolution No. 2010-34, Draft 1, RESOLUTION AUTHORIZING THE ACQUISITION OF THE FEE SIMPLE INTEREST IN LANDS REQUIRED FOR PUBLIC USE, TO WIT: THE PEDESTRIAN AND BICYCLE PATH WHICH CONSTITUTES PART OF PUBLIC PARK SYSTEM, SITUATE AT WAIPOULI, DISTRICT OF KAWAIHAUM COUNTY OF KAUAI, HAWAII, AND DETERMINING AND DECLARING THE NECESSITY OF THE ACQUISITION THEREOF BY EMINENT DOMAIN Chair Asing: What I'd like to do is I'd like to defer this item to the next meeting and then have an Executive Session. I think there are many, COUNCIL MEETING - 21 - ~ May 26, 2010 many points that were brought up that should be clarified and we should meet with the Attorney's Office our legal department and get information that is information that we should get. I would also like to remind Councilmembers please, please, please... do not throw out any figures at all. We do not know what the cost is, we do not want to have people pick up figures and start doing calculations that may be - erroneous and so we need to get good proper information from our legal department together with our Public Works Department. With that... Councilmember Furfaro... Mr. Furfaro: Mr. Chair thank you very much for recognizing me before I seconded your motion... Chair Asing: Yes. Mr. Furfaro: But that is the one reason that I did go silent of the earlier vote. I would like to get some kind of Executive Session briefing on the actual negotiation for the land parcels so that I understand what is going on in that negotiation. And I would also like to see if the County Attorney can also brief us on Section 4F that deals with cultural practices as it relates to anything that we might have to have a better understanding of the coastal zone management process because it is a Federal Government law where the CZM is then passed on the State and then passed on to the County, so... and on that note I would like to say I would second your deferral. Mr. Nakamura: Council Chair. Chair Asing: There is no... Mr. Nakamura: Yeah there is no motion at this stage. Mr. Furfaro: There is no motion... I'm sorry I... I'll let others speak before I make the motion then. Chair Asing: Go ahead Mr. Bynum. Mr. Bynum: Thank you Mr. Chair. First of all I appreciate that we take the time to make sure that any questions are answered in all of our minds, so I would be supporting what you said. I also want to take responsibility for throwing out a rough guesstimate and I said earlier that perhaps that was imprudent and so I think I know your caution but... but I'd also like for anybody who's watching this in the audience to... and I also appreciate that the Chair gave wide latitude to Ms. Palmeira and that the County Attorney did the same and didn't because she was speaking on issues that are not on the current agenda and so I won't address those but what is on the agenda is a condemnation of land and this is at Kapa`a Shores. The people on Kauai know you turn right and there's a street that goes to Niulani that those are private streets right now, they're all busted up and potholed and the owners of those streets are happy I believe that the County and have asked the County to take those and so the two (2) larger parcels where there's no dollars involved, are those roadways. The other parcel is a thin strip along the easement and we are using the roadway right-of--way easement but to do it appropriately and safely we needed some additional space. The fee simple landowner... all of these things are happening with cooperation of the landowners involved. These are legal things to make sure that we're crossing the "I's" and dotting the... crossing the "t's" and dotting the "I's"... and you know is all straight forward. And the legal issues get complex but they are all in full consultation and with cooperation of the landowners there. And it's in order to do these things appropriately and safely. The questions are good and it caused me to go out and try COUNCIL MEETING ~ - 22 - ~ May 26, 2010 to get that information as clear as I could and to share that with the public. The other thing that I would say regarding Mr. Mickens testimony is that all of the funds involved in the project, the Council is updated by our team on a regular basis and that information is available as a public document to anyone who's interested. So thank you for that opportunity to speak. Chair Asing: Thank you. Any other discussion? If not... Mr. Furfaro: I'll make the motion to defer I think to June 9th. Chair Asing: Motion carried. Next item please. Upon motion duly made by Mr. Furfaro, seconded by Mr. Bynum, and unanimously carried, Resolution No. 2010-34 was deferred. Mr. Nakamura: Council Chair just for clarification the deferral would also include the scheduling of an Executive Session. Chair Asing: Executive Session, yes. Mr. Furfaro: I'm sorry if I didn't make that clear the second time. Mr. Nakamura: Next Resolution is Resolution No. 2010-35. Resolution No. 2010-35, RESOLUTION REQUESTING THE MAYOR TO CONSIDER INCLUDING THE COUNTY OF THE COUNTY OF KAUAI IN THE IMPLEMENTATION OF THE KAUAI ENERGY SUSTAINABILITY PLAN Mr. Chang: Move to approve. Mr. Kaneshiro: Second. Chair Asing: Any discussion? Peter? Mr. Furfaro: I have discussion. Chair Asing: Yes go ahead. Mr. Furfaro: You know... we have two (2) proposed bills here that are back in front of us and we have 2355 which actually is the amended bill dealing with the CZO that looks like we're indicating we're going to move to receive and then coming up later we have similar bill... I'm not sure where I'm at on receiving this first one. Chair Asing: No... we're on... Mr. Nakamura: The Sustainability Plan. Chair Asing: 2010-35. Mr. Furfaro: Oh 35? Chair Asing: Yes. Mr. Furfaro: I thought it came out 65 I'm sorry... COUNCIL MEETING - 23 - ~ May 26, 2010 Chair Asing: Yeah and... Mr. Furfaro: Okay let's reel it in. Chair Asing: And there's a motion to... Mr. Furfaro: I thought I heard 65. Chair Asing: Approve. Okay... can I have a motion to approve? Mr. Kaneshiro: We did. Chair Asing: Okay... can I have a second? Mr. Kaneshiro: We did. Chair Asing: We did? Okay. With that any discussion? Mr. Bynum: So Mr. Furfaro this is the Resolution regarding the Energy Sustainability did you want to speak on that? Mr. Furfaro: Yes. Yes... and I'm reading the particular points here. The Resolution is coming up a bit later, am I correct Mr. Clerk? Chair Asing: No. Mr. Nakamura: This would be the Resolution on the Energy Sustainability Plan. Chair Asing: We're on it right now. Mr. Furfaro: I would like to get some feedback then from the members because I've taken the liberty to assign some task to this bill dealing with asking Councilwoman Kawahara to pursue the Transportation section looking at myself and Mr. Kaneshiro, I'm talking about the utility section in particular I would like to say that your support of this Resolution indicates your concurrence to take on some of additional assignments with not more than two (2) members pursuing certain parts of the Resolution. Chair Asing: You know I really don't think there's a big mad rush to approve this so if you... you know want some time to work on it we can defer it until such time as you know you're comfortable and we can... Mr. Furfaro: Well I... Chair Asing: We can entertain that... Mr. Furfaro: Well I would appreciate that because you know as a senior manager in most organizations I took my liberty in assigning task... to certain Councilmembers so maybe a two (2) week deferral with everybody reading the areas that I am asking them to pursue would be appreciated. Chair Asing: Okay with that can I have that? Oh go ahead first. Mr. Bynum: Just to say that you know I read this Resolution as a request to the Administration to continue to collaborate with the Council on the COUNCIL MEETING ~ - 24 - • May 26, 2010 recommendation of the Energy Sustainability Plan and I think that's wise and I think it would be appropriate to defer to have further discussion that's fine. Mr. Furfaro: You did get an assignment in there. Mr. Bynum: I didn't see that but I am invested in us addressing the issues that are brought up by the Energy Sustainability Plan. Mr. Furfaro: Very good. Mr. Bynum: Some of which required the Administration's involvement, some of which may require legislation from this body and you know we've gone through a process that we certainly follow up and collaborate on and go forward so I think the intent of the Resolution is a very good one. Mr. Furfaro: Well I appreciate the Chairman's recommendation on the two (2) week deferral and since when we get a second to that of course it's mute to two (2) weeks so... if anyone feels that my anxiousness in assigning task was too much please feel free to see me in the next two (2) weeks. Chair Asing: I think it's reasonable to have the deferral for two (2) weeks. So why don't you make that motion. Mr. Bynum: We need to withdraw that motion to approve we have on the floor. Chair Asing: Yes. Mr. Kaneshiro: That's correct. Chair Asing: So can I have the withdrawal first of the motion? Mr. Chang: I withdraw my first motion to approve. Chair Asing: Okay. Can we have the withdrawal of the second? Mr. Bynum: And I withdraw my second. Chair Asing: Now can we have a motion to defer. Mr. Furfaro: Move to defer for two (2) weeks. Chair Asing: Thank you. Can we have a second? Ms. Kawahara: Second. Chair Asing: Fine, is there any further discussion? If not all those in favor say "aye". Councilmembers: Aye. Chair Asing: Motion carried. Thank you. Next item. Upon motion duly made by Mr. Furfaro, seconded by Ms. Kawahara, and unanimously carried, Resolution No. 2010-35 was deferred. COUNCIL MEETING • - 25 - • May 26, 2010 Mr. Nakamura: Next matter on page six (6) of the Council's agenda are Bills for First Reading. The first bill for First Reading is proposed draft Bill No. 2355. BILL FOR FIRST READING: Proposed Draft Bill No. 2355 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE Mr. Nakamura: This is the bill that amends the current TVR ordinances and this was the original bill that was referred to the Planning Commission and Mr. Chair if I may just as a point o£.. for clarification there's also proposed draft bill 2364 which is the bill with the Planning Commission's recommendations included in it but right now we're on Bill No. 2355. Chair Asing: We are on Bill 2355 now, can I have a motion to receive. Mr. Chang: Move to receive. Mr. Bynum: Second. Mr. Chang moved to receive proposed draft Bill No. 2355 for the record, seconded by Mr. Bynum. Chair Asing: Do we have anyone who wants to speak on this item first? Yes. We're on 2355. There being no objections, the rules were suspended. Mr. Rapozo: Right, I understand you're going to receive this and then take up the other one? Chair Asing: Yes. Mr. Rapozo: Well I'll testify because I think my comments apply to both but I'll reference it to 2355. Mel Rapozo again for the record and I'm not sure how many of you watch the Planning Commission meeting where I testified but basically what... I'll only testify today and if it should move out of this, move to a Committee or a public hearing, I'll come back and testify on the actual bill itself but I think... and I know some of you have, may have the Attorney General opinion as it relates to vacation rentals or bed and breakfasts on Ag property and I know I have three (3) minutes and more than likely I'll have to come back but let me just start by saying the Attorney General was asked back in October of 08 by Sandra Kunimoto who is the Chairperson of the Board of Agriculture, she asked a specific question, can you have a bed and breakfast or vacation rental on Ag land, and this opinion in my opinion and I think in anyone's opinion that can read... will show that in fact you cannot. That in fact the Attorney General has opined that in based on Chapter 205 the Counties cannot authorize vacation rentals on Ag land, and let me just highlight some of the opinion. I think the most important part is that the Attorney General has ruled that TVR or a Bed and Breakfast is not an accessory use, it's not. It is not defined as an accessory use, it was never defined and in fact the Legislative intent and they cite the Legislative notes in this opinion as well that in fact it's not. It was never designed and there wasn't an attempt to add it in as an accessory use or as an authorized use and the Legislature decided that they were going to take it out. The question is real simple and the answer that the House COUNCIL MEETING • - 26 - • May 26, 2010 Committees on Ag and Water, Land and Ocean Resources, they deleted the reference to overnight accommodations, the Committee reported that they had amended the bill by removing the overnight accommodations from the list of accessory facilities the counties would be allowed to regulate, in other words they took that out. The counties do not have the authority to regulate this issue. Because it's not an accessory use. The Legislature intended the proviso to apply only to Ag tourism rather than prohibit all B&B's and TVR,'s in Ag districts. Accordingly, we believe the prohibition of overnight accommodations applies as Ag tourism. The fact that a lot existed prior to June 4, 1976 is irrelevant to whether a B&B or a TVR, is allowable, it's irrelevant. It appears that single family dwellings may be built on lots existing before June 4, 1976 without the need for any agriculture activity but there is nothing to suggest that the right to build a single family dwelling without the need of agriculture activities encompasses the right to use the single family dwelling for a B&B or TVR. Again this is not Mel Rapozo this is the Attorney General, actually signed by Mark Bennett. (3 minutes) Mr. Rapozo: Okay I'll come back Mr. Chair. Chair Asing: Do you want to finish up? Mr. Rapozo: If you let me, I will. Chair Asing: Yeah go ahead. (Mr. Kawakami was noted present at 10:27 a.m.) Mr. Rapozo: Ah thank you. A B&B or TVR, is not listed among the activities or uses allowed on agricultural lands under sections 205 (2D) and 205 (4.5), it's not listed. Section 15-15-03 the Hawaii Administrative Rules further defines a farm dwelling as a quote "single family dwelling located on and used in connection with a farm or where agricultural activity provides income to the family occupying the dwelling" that's the definition, that's what you can have, you cannot have a B&B or a vacation rental and they sum it up here and it says we're not aware of any justification for a B&B or TVR, as being compatible with any other agricultural use or activity. Again this is Mark Bennett speaking, this is not Mel. Section 205-5B provides that counties may further define the accessory agriculture uses and services described in Sections 205-2 and 205-4.5 however we believe that counties cannot allow a B&B or a TVR, on agricultural lands under Section 205-5B. You cannot. You don't... in the eyes of the Attorney General... which pretty much and this is a State law we're talking about, not a county code, we're talking about State law. Because a B&B and a TVR, are not similar to any of the listed items, they are not bonafide agricultural services or accessory agricultural uses and counties may not allow them on agricultural lands under 205-5. You cannot do it... according to the State Attorney General. Legislative history supports this conclusion in 1991 the legislature amended section 205-5B to allow the counties to define bonafide agricultural services and they quote their legislative minutes, your Committee on conference as amended the measure to require that to be accessory to the permitted agricultural activities, a service or use must support the agricultural activities of the fee or leasehold owners. I mean... I just don't see how we can miss this and we've been talking about this when this bill first came up years and years ago and that's in fact that's why it's not allowed in the current bill because I thought this... that Council at the time had clarified the fact that in fact TVR's cannot occurred on Ag land. And it's resurfaced and we're trying to legalize this activity and I thank the Attorney General for providing this opinion and they dust sum it up saying a B&B and TVR, are unrelated to and do not support the COUNCIL MEETING • - 27 - • May 26, 2010 agricultural use of a property accept that they produce revenue. If revenue production, unrelated to agriculture (inaudible) section 205-5B would essentially be rendered meaningless. Please as you go through today's hearing... this bill needs to be killed. Unless we intentionally want to go against the Attorney General's opinion. (6 minutes) Mr. Rapozo: Because... okay thank you. Chair Asing: With that... hang on... Councilmember Furfaro. Mr. Furfaro: Mel could I have a copy of your Attorney General... Mr. Rapozo: Yes. Mr. Furfaro: And I do want to make sure that we... we understand, this is not about being for legalizing vacation rentals going forward in Ag land, I sat on the General Plan and the General Plan talked about not letting it grow. I in myself have you know in Ha`ena in the Open lands, they had eighteen (18) vacation rentals going on State conservation land which it clearly says no commercial activity on commercial Ag, then the State enters into this things where they give them a period of time to have an exit strategy even the State because they know there's going to be a question for twenty-five (25) years people accepted general excise tax, transient vacation rental tax and if it was illegal, it was never returned. I'm a hotel guy okay; I'd like to fill hotel rooms not the use of these units outside of designation visitor residential areas. But the General Plan indicated, we needed to control this going forward. In years previous to me being on the Council the fact of the matter is a Councilmember asked to get an interpretation from then County Attorney or Deputy Attorney Kobayashi. The opinion was made public in the late 90s and vacation rentals took off because it said without a bill it is not illegal and obviously the focus was really on the residential areas. But it took us until I think 2003 when the Chair of then the Council, JoAnn Yukimura and myself as the Vice Chair and I'm talking about the Planning Committee got approval from. Chairman Asing to launch this study group, this stakeholders piece. And it took us this time to come up with these two (2) ordinances 864 and 867 that were passed with specific lines drawn in the sand. That said... and going beyond March 8, 2006... so I want to make sure I'm here doing this because I think we need to finally fix this, does the fix include going forward? No it should not. Does the fix include putting some expectations on the Planning Department? Yes it does. Therefore this bill is coming back to us saying we find ourselves suggesting, strong suggesting and recommended that those that do have it on Ag land there has to be an accessory use for the unit. That seventy-five percent (75%) of the land has to be in cultivated agriculture, there has to be a farm business plan. I want to make very clear when you use the word, we're doing something illegal, I'm saying we're doing something that perhaps does not expose the county to more financial risk and does not allow these units to grow going forward. You know to me, there's a big difference there and I think you recall when I sat on the Stakeholders meeting, the people who had TVR's said to me oh we prefer that you recuse yourself and it wasn't because I was willing to do it as Vice Chair of Planning, they wanted me to recuse myself because I was a hotelier and they felt I was only prohotel, well the issue here is that we need to get a point and I hope... and I look forward to your return Mel and you did indicate you will come back for public hearing if this gets to that point. Mr. Rapozo: If it passes out today then I will be back to testify obviously on the merit of the bill because I think there's some issues in the bill that seriously dust diminish the bill but obviously I won't have enough time today. COUNCIL MEETING • - 28 - • May 26, 2010 Mr. Furfaro: Well I always appreciate your feedback and you know we sent the bill back down to Planning who put in, in the next bill this agricultural requirement but I want to make sure to me this bill is not about growing those units, this bill is about managing what we already had for twenty (20) years and we collected taxes on it. You know I don't know the ramifications on that either... Mr. Rapozo: Well may I respond? Mr. Furfaro: We're not in a financial position as you know. Mr. Rapozo: Yeah. I understand. May I respond Mr. Chair real quick? Chair Asing: Yes go ahead. Mr. Rapozo: I think the Kobayashi opinion didn't reference Ag. Mr. Furfaro: No. Mr. Rapozo: Okay. Mr. Furfaro: I said it only dealt with residential. Mr. Rapozo: And the reason it didn't... I imagine at that Mr. Kobayashi did look at the State law and realize that he couldn't. So this is not residential or this is Ag... this bill is on Ag and my position on this is that the Attorney General is clear on his opinion. That this County has no authority to regulate TVR,'s or B&B's on Ag land because of Chapter 205, that's his opinion and you do with what you want with it. I think if you read the legislative notes, the history... at the legislature and the comments, they did consider, they did consider the opportunity to maybe include overnight accommodations and yet after all was said and done, the Legislature and I think wisely decided to not to put it in because Ag was for Ag. The question as to the State... Mr. Furfaro: Excuse Mel in the (inaudible) he has to be asked a question... Chair Asing: Yes... Go ahead... go ahead. Mr. Furfaro: I will ask you a question so we comply... but I like your choice of words... imagine... that's a famous Beatles song "imagine"... and I want to make sure you understand me, I'm imaglmng this is saying no exposure to past financial possible obligation to collect (inaudible) in arrears and going forward, I just want to ask you the bill we got back was sent to the Planning Commission to get some of their input as to fixing this, finally fixing this and then live with some attrition going forward. I dust want to note, can you understand this is not about _ promoting, this is about trying to find a way to have some attrition and stop. Mr. Rapozo: If not for the State law, Jay, I would be supportive. If not for the State law, I would be supportive, but this in my opinion and maybe I'm too black and white, maybe the threat of lawsuits is too severe. The bottom line is the State collected TAT general excise tax, the county didn't collect tax. Yes maybe... Mr. Furfaro: We got a share of it... COUNCIL MEETING • - 29 - • May 26, 2010 Mr. Rapozo: Correct we got a share of it but we permitted, we may have permitted unlawful uses. And if we did and at the end of the day if some court rules that we owe them money, I'm sorry Mr. Furfaro, we screwed up. Mr. Furfaro: Well I would like to say to you Mr. Mel... that they screwed up too because they had a whole section in Ha`ena on land that was in conservation. Mr. Rapozo: Correct. Mr. Furfaro: You know... two (2) wrongs don't make a right; I'm dust trying to fix it. Mr. Rapozo: I understand but I... Mr. Furfaro: And I want to say that I use the term Mr. Mel because I understand your compassion but I just want you to understand to me the bill is about fixing it, going forward. Fix it; don't collect what we're not entitled to. Mr. Rapozo: My compassion is really with just following the law, that's my compassion. Like I said we should be spending our energies if in fact this island and this county have come to the point where we don't have a problem with vacation rentals on Ag land then let's go change the State law. But as this... Mr. Furfaro: Well I would say... I'm offended that you use the word "your idea is to follow the law." I'm a law abiding citizen; I just can't balance what they collected to what is right and wrong. We got to fix it, we got to draw the line and I have to tell you, I didn't appreciate that comment. Mr. Rapozo: I apologize. Mr. Furfaro: I'm a pretty lawful guy. Mr. Rapozo: Then you need to... you need to get this bill out today. You need to receive the bill... Mr. Furfaro: Thank you very much. Mr. Rapozo: Okay. Chair Asing: Thank you Mel. Mr. Rapozo: Thank you. Chair Asing: With that is there anyone else? CAREN DIAMOND: Aloha Caren Diamond. I brought a cluster which is behind the screen if it can be brought out. Chair Asing: You know I... let me, let me just do this, I think it would be better if we... because I... and public if you don't agree with me let me know. We have two (2) bills here, we have 2355 and we have 2364, now the plan was to receive this bill that we are on now on the agenda 2355 and then when we come to 2364 I believe that's where all the discussion should take place, now if you think I'm wrong and you want to do the same thing all over again one twenty-six, COUNCIL MEETING ~ - 30 - • May 26, 2010 sixty-four... then it's like talking about almost the same things again repeating on the next item. Ms. Diamond: So Chair I don't, I don't care which agenda item I use it for and if you'd like me to come back I'll happily do that. Chair Asing: With that said let me dust do this, I'm going to stick to the agenda and we are on 2355 first, the intent was to receive that and then I would suggest we move on with that here unless someone feels differently then we'll do the next bill 2364 and then have the comments from the group, is all in agreement? Mr. Castillo: Excuse me Mr. Chair? Chair Asing: Yes. Mr. Castillo: Mr. Chair can we have a short recess I need to clarify something with the Council. Chair Asing: Sure. Mr. Nakamura: Council Chair if we... we're almost there to the caption break. Chair Asing: Yeah we'll do the caption break now, thank you. There being no objections, the meeting was recessed at 10:41 a.m. The meeting was called back to order at 11:05 a.m., and proceeded as follows: Chair Asing: Meeting is now called to order. With that Mr. Clerk can you please read the next item? Mr. Nakamura: We're on... we're still on Bills for First Reading Proposed Draft Bill 2355. There's a motion and a seconded to receive this bill. Chair Asing: Thank you, can I have a motion to receive. Mr. Nakamura: No, we do, we have a motion. Chair Asing: Do we have a seconded? Mr. Nakamura: Yes. Chair Asing: Thank you. Any discussion? Yes Councilmember Furfaro. Mr. Furfaro: You know I dust want to and I'm going to be looking across to the County Attorney... (mic?) Mr. Furfaro: My mic? Okay. As I ask this question, I'm going to be looking over to Mr. Castillo, 2355 in that draft form really addressed you know the alleged zoning violations and in that section I mean in receiving this would we be able to or intend later to merge the zoning issues into the new draft bill that came back to us from Planning? COUNCIL MEETING • - 31 - • May 26, 2010 Mr. Castillo: I think to be safe we should call up Ian Jung because we just reviewed the bill. Mr. Furfaro: So Mr. Chair could I ask that Ian Jung... Chair Asing: Sure. Mr. Furfaro: Come up and may I ask that question? Chair Asing: Yes the rules are suspended. There being no objections, the rules were suspended. Chair Asing: Ian? Good morning. IAN JUNG (DEPUTY COUNTY ATTORNEY): Good morning Council Chair, Councilmembers. I think what you... Chair Asing: For the record... Mr. Jung: For the record Deputy County Attorney Ian Jung. Mr. Furfaro: Do I need to repeat my question or did you hear it. Mr. Jung: No I did hear it from the back. Mr. Furfaro: Okay. Mr. Jung: I think what's before you right now is a procedural issue, there are two (2) bills on the agenda this morning. One of the bills, I believe 2364 was the amendments that came out of Planning Commission after the public hearing, so there are one additional amendments relating to the Ag dedication and that would be the difference between the two (2) bills. Mr. Furfaro: Got it. Chair Asing: Councilmember Bynum? Mr. Bynum: So just to make sure... 2364 contains the elements of 23... Ms. Kawahara: 55. Mr. Bynum: 55 with an addition, is that correct? Mr. Jung: That's correct, the same purpose and intent of 2355 is in 2364. Mr. Bynum: Thank you for that clarification. Mr. Furfaro: Excuse me, so the zoning question had in 55 the alleged violations is... it duplicates itself in the template of 2364. Mr. Jung: It does as the bill coming out of Planning Commission. Mr. Furfaro: Thank you. Thank you Mr. Chair. COUNCIL MEETING ~ - 32 - • May 26, 2010 Chair Asing: Thank you. Mr. Furfaro: Thank you Mr. Jung. Chair Asing: Any further questions for Mr. Jung? If not, thank you. I'd like to call the meeting back to order. There being no more questions for Mr. Jung, the meeting was called back to order, and proceeded as follows: Chair Asing: We have a motion on the floor to receive, we have a second, any further discussion? If not roll call please. Mr. Nakamura: Oh no... just a vote. Chair Asing: Okay. All those in favor say "aye." Councilmembers: Aye. Chair Asing: Opposed say "no", motion carried. Next item please. The motion to receive proposed draft Bill No. 2355 for the record was then put, and unanimously carried. Mr. Nakamura: Next proposed... Draft Bill for First Reading is Proposed Draft Bill No. 2364. Proposed Draft Bill No. 2364 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE: Mr. Furfaro moved for passage of Proposed Draft Bill No. 2364 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for June 23, 2010, and that it thereafter be referred to the Planning Committee, seconded by Mr. Bynum. Mr. Nakamura: This bill is the Planning Commission recommendation. Chair Asing: Thank you. Mr. Furfaro: I'd like to approve this bill if I can and look for schedule a public hearing, I do know that there are people that want to speak on this but I want to make sure the... that they understood that there would be a scheduled public hearing on June 23 and I'm guess it would be in my Committee. Chair Asing: Yes. Mr. Furfaro: Planning. Mr. Bynum: Second. Chair Asing: Okay with that why don't we suspend the rules and have... Mr. Nakamura: Council Chair could I get a second to Council Vice Chair Furfaro's... COUNCIL MEETING ~ - 33 - ~ May 26, 2010 Mr. Bynum: Second. Chair Asing: Yes. Mr. Nakamura: Thank you. Chair Asing: Okay there's been a motion to approve on First Reading, schedule public hearing on June 23 and refer to the Planning Committee, there's been a second, with that I'm going to suspend the rules and open it up for the public participation, with that Councilmember... I mean... Mel... There being no objections, the rules were suspended. Mr. Rapozo: Ah... Thank you Mr. Chair all I want to say... Mel Rapozo for the record. I just want my comments that I made for the prior bill applied to this bill, I'm not going to go through it again. The... the... intention is the same, the fact that the Attorney General opinion that I provided to you, I'm relying my testimony on that and I feel that in fact the County does not have the authority under the State law to allow TVR,'s on Ag land. Thank you. Chair Asing: Thank you. Mr. Furfaro: And Mel may I say thank you for getting us the copies from your testimony... Mr. Rapozo: You're welcome. Mr. Furfaro: Thank you Mr. Chair. Chair Asing: Thank you. With that is there anyone else? Ms. Diamond: Good morning Councilmembers, Caren Diamond for the record. I hope the map can be brought out now so that I can use that for my testimony. Mr. Furfaro: Mr. Chair I do want to know we are going to respect the rules and give them six (6) minutes since... Chair Asing: Yes. Mr. Furfaro: Since we have set up public hearing for this. Chair Asing: Yes. Mr. Furfaro: Okay. Ms. Diamond: Thank you. I'd like to direct your attention to this map which is the Kauai zoning map. Mr. Furfaro: Excuse me Caren are... it's a little bit exaggerated with the size of the dot and the size of the map, I mean... at least you could have brought us a modeling scale. Ms. Diamond: Sorry. Actually I started at the Kekaha side and as I got around to the top I realized I needed to use much smaller dots because if you look at where I started in Kekaha, each dot could have its own independent space COUNCIL MEETING ~ - 34 - ~ May 26, 2010 but as I got up to the North Shore, the dots are all overlapping and I couldn't fit them in the space that they... if Ha`ena and Wainiha and Hanalei and I also had to go all the way over to Napah because there was no way I could get that amount of dots on this map and I think that really... and so I'd like to start at Kekaha... Excuse me go ahead. Mr. Chang: Excuse me I'm sorry Caren... Can you dust so we can follow along if you... when you start with Kekaha can you give us a number like maybe Kekaha representing the dots, in other words in Kekaha... because when you look at the dots... maybe you could say twenty-three (23) or fifty-four (54)... Ms. Diamond: So I apologize but I didn't... I did count out the numbers for Ha`ena and Hanalei but I didn't count out the numbers for the rest of the island but I could come back with that in a little bit. Mr. Chang: Maybe (inaudible) Ms. Diamond: This actually was the first time I looked at the whole island as a whole because we've been working on Wainiha and Hanalei and knowing that there are tremendous amounts of vacation rentals that have accumulated impact and then I want to put it in perspective with the rest of the island. Mr. Chang: Okay. Chair Asing: With that Councilmember Furfaro. Mr. Furfaro: Yes and not to affect Caren's time but we do have a summary for all of those that are new to the Council, the summary was commissioned by a Real Estate Group and done by Mr. Ken Stokes, that number represented about nine hundred and sixty (960) vacation rentals on the island of which by application time almost four hundred and fifty (450) did not apply because they did not make the criteria. So my question is only a yes or no... does your map show all of the vacation rentals or is it net from who actually applied? Ms. Diamond: This is only the approved vacation rentals. Mr. Furfaro: Okay. So that number is about four hundred and fifty-six (456)? Ms. Diamond: But you know referencing this bill before you that takes out inspections that allows people to come in now and apply... Mr. Furfaro: I understand that Caren... and I'm not on your time but I was trying to answer Councilmember Chang's question. I also know that in the map you covered areas that are VAD... VDA approved and so you know... they are legal. Ms. Diamond: I'll describe the map in just a minute. Mr. Furfaro: That will be good. Ms. Diamond: Thank you. Mr. Furfaro: But I wanted to answer Mr. Chang. COUNCIL MEETING ~ - 35 - ~ May 26, 2010 Ms. Diamond: I do want to say though that with this approved bill, all those four hundred and somewhat... that did not apply can now come in and apply because there's no more inspections. And by in large those are people who knew that their houses would not pass any physical inspection but now the way this bill is written before you, no physical inspections necessary anymore. And so we expect the rest of those four hundred and fifty (450) to come in and apply and so I'd like to start at Kekaha there where the dots were individual and represent each vacation rental that has been approved. And then as we go down to the other concentration, it's Lawa`i which is right next to Po`ipu and I did not map the visitor destination areas so as you come up to the Kapa`a side you can see that there are some vacation rentals there. The blue dots on the map are all the agricultural vacation rentals that are on the TVR, log of people who have applied for agricultural vacation rentals and did not get approved. The red ones that are within that blue sea are ones that did get approved in agricultural district or Open and so you can see that if you approve this agricultural vacation rentals, you've made a sea of visitor destination area of the entire North Shore. Whereas if you look at zoning which really is the law of the land here, there was areas for residential, there was areas for resort, there was areas for agricultural lands, this kind of does away with it and it makes Ha`ena, Hanalei makes the entire North Shore a resort and I'd ask this Council if you want to make the North Shore a resort, come with zoning changes because that's what is supposed to happen, it's not supposed to happen by default where you approve all these vacation rentals and don't consider all the accumulated impacts and this is all Special Management Area some of the most ecologically sensitive land that we have. And you've just made a visitor unit out of it. If there was to be a hotel proposed that had three (3) or four hundred (400) units, you know there would be some impact and you know they would want to know what there would be a planning process over it but this is dust approving all of them and telling them to come in but this bill that you have before you opens it up so that this is what has already been approved, it doesn't even begin to address what would come in after that. And you know I want to go back to the purpose that this TVR ordinance had said because I'm really sad that two (2) things from the General Plan were pulled out to say that this is why we have to do this and I really don't understand why all the zoning is ignored, all the zoning regulations, everything and just so... I'll just read you a little bit from the findings and purpose of the original bill which is single family transient vacation rentals are occurring at a greater rate and inflicting a larger impact on the community of Kauai than was ever anticipated in the county's original CZO. The uncontrolled proliferation of vacation rentals and residential in other areas outside the visitor destination area is causing significant negative impacts to certain residential neighborhoods foreshadowing similar impacts on other areas of the island. County development standards and permit processes shall be scaled to the size and potential impact of the use. I think that's an incredible impact, we've lost the residential qualities of the North Shore, this is... permitting processes should consider the accumulative impact that a large concentration of alternative visitor units can have on a residential neighborhood. Look at our residential neighborhood, that's not a VDA, that's residence... it was residence and legally it still is. And I'm just going to read you one (1) more thing which is from the original bill. It says once the number of nonconforming uses are established, attrition is monitored. The Planning Department has demonstrated effective enforcement of the law... whoa where's that? Can we have an audit of how this TVR, ordinance has been implemented? Can we ask the County Auditor to do that? So I'm asking this body please before you add to this bill, before you add to this problem, before you add to the proliferation... (6 minutes) COUNCIL MEETING ~ - 36 - ~ May 26, 2010 Ms. Diamond: Please do an audit of what has occurred ~ so far. Thank you. Chair Asing: Thank you. Is there anyone else? BARBARA ROBESON: Thank you Mr. Chairman, aloha Councilmembers, Barbara Robeson for the record and I'm speaking on behalf of Protect our Neighborhood `Ghana representing the residents of Wainiha and Ha`ena. And I have some general comments and then I'll get to my specific comments. My first comments relate to the map that Caren presented. Per the map it's pretty obvious that the number of TVR,'s outside the VDA is extremely significant and I wonder because I don't have access to that information. Are there more TVR,'s outside the VDA or are there more TVR,'s within the VDA areas and it's obvious from my perspective anyway that Wainiha and Ha`ena has become a defacto resort area just like what Caren had said. Now the North Shore plan, the North Shore Development Plan said, page thirty-nine (39), one of the recommendation was that all visitor accommodations and resort units should be confined to the Princeville resort area, and another recommendation was the values and lifestyles of local residents should not be and reasonable compromise to accommodate the tourist industry. Well I think that's kind of passed by the way side now. Another kind of general comment that I had relates to the section 8 of... 8-2.1 which is article 2 designation of districts, effect of establishment of districts and zoning maps, and I'm wondering if that was even considered in this bill that's before you. Some of the information that's put forth in that is that as part of any ordinance enacted by the County Council affecting the change in the zoning classification of any real property or boundary of any district the county there may be imposed conditions concerning use or zoning classifications. And one of the conditions or the goals is to preserve the heritage character of the North... I'm sorry... character and beauty of the island of Kauai, well kind of gone by the way side there too. 522D 1 said no building structure or building portion shall be erected, altered nor shall any structure, land, or premise be used except in the matter indicated and only in the uses permitted in the districts in which the building structure or land or premises is located. And I think this is probably going to be coming up before the Council but before I get into the specific comments on the bill... are the TVR,'s still paying the taxes at the residential rate, it's my understanding that they are and that there is some action that's going to be taken by the Council in the future to mitigate that. But basically residents are subsidizing TVR,'s and what about the hotel industry, are they also subsidizing TVR,'s because it's obvious that when a hotel comes in for approval, that they have certain fees that are imposed on them, impact fees such as park dedication and room fees, they pay infrastructure cost, they pay for road improvements, sewage, they sometimes do housing... they have a capital investment in the facility, they create jobs and the property taxes of course are at the resort or commercial rate. So going to the bill and the bill that I'm using for my specific comments is the proposed Bill No. 2355 and in the first paragraph there on page one (1) section one (1) the last sentence said, however this bill maintains the prohibition concerning the commencement of any new single family transient vacation rental outside the VDA's, if the use was not established prior to March 7, 2008, and then it goes on to say in the second paragraph, the Council further finds certain provisions of ordinance 864 and 876 have served contrary to this policy, well or these procedural problems or was it threats of lawsuit or have the Washington lobbyist come to Kauai and have been lobbying behind the scenes? What happened to open government? We don't know what's behind this. Going to page three (3) section four (4) (c) in the middle of the page there, this bill 2355 eliminates the wording that the effective date of this ordinance which was March 7, 2008 and was the TVR,'s were in compliance with all State and County land use and planning laws including but not limited to HRS Chapter 205, CZO, Special Management, Flood Plain, Shoreline Setback... so this bill is proposing to eliminate compliance with COUNCIL MEETING • - 37 - • May 26, 2010 State and County laws and my question is how can you retroactively eliminate legal requirements by taking it out now, those requirements were effective for March 8 and dust to give you an example of how it might work against by taking this portion out, some TVR's have now applied, some of the TVR's that applied by October 15, 2008 were denied. Those TVR,'s previously denied have now been coming to the Planning Commission for approval, so if that requirement for compliance with the State law, County law was taken out, they could come forward and wouldn't have had to meet those requirements. And then finally on... again on Bill No. 2355 page six (6)... (6 minutes) Ms. Robeson: I dust have one (1) thing. Chair Asing: Okay finish up. Ms. Robeson: Page six (6) section five (5) there in the middle of the page it says section 8-1711 (a) the last sentence there, violations of conditions of approval or providing false or misleading information on the application or any information related thereto at any time of the application process shall be grounds of revocation. Well I have testified in the past before the Planning Commission and before I believe before the County Council to that some of the affidavits that people the sworn affidavits that they had turned in had false information on it. Many of those affidavits and application claimed homeowner's exemption, how can they have a homeowner exemption being living in their house and then get their TVR, permit? So that's all I had, thank you very much Mr. Chair. Chair Asing: Thank you, with that hold on Barbara. Ms. Robeson: Yes. Chair Asing: Councilmember Furfaro. Mr. Furfaro: Yes thank you Barbara for your testimony. To answer one (1) of your questions there is discussion about modeling the Maui ordinance 3671 I think it's a draft bill adding a new and in Maui it's category eleven (11) as a tax category referencing commercial residential so to answer your question there is some of that... Ms. Robeson: In the works. Mr. Furfaro: In the works, in the moving parts okay. The other one is I do agree with you if people false claim a homeowners exemption while they were doing commercial activity and it wasn't their primary location then I would suggest that strongly we look at legal action on those individuals because you know I mean you just can't be falsifying records, it indicates that so. I concur with that .with you and I will be suggesting pieces that go along people claiming tax exemptions that they weren't entitled to. Also are you aware of 464 that sometimes... Ms. Robeson: Yes I am. Mr. Furfaro: That sometimes referred to as the Waikiki... Ms. Robeson: Waikiki Market Place. COUNCIL MEETING • - 38 - ~ May 26, 2010 Mr. Furfaro: Market Place pieces that... I dust want to find out if you're aware of it because it seems that it posed some legal challenges in the form of being able to appeal. And yet at the same time I know you will probably agree with me, there is the possibility that that interpretation needs to be revisited but that 464 says to people that if you were denied you can in fact correct something and reapply. Ms. Robeson: Well by brining that issue up earlier was if 464 are behind this bill then I think the public is entitled to know that so that we can comment on it but if it's something that done behind closed doors, then how can we... how can we make comments about it? Or how can there be the other side of . the story told or argued against it so I'm just saying in the interest of open government I know you've all discussed that extensively... it would really be... Mr. Furfaro: And that's why... Ms. Robeson: Something that I think you should do. Mr. Furfaro: I know... I think that you appreciate the fact that I brought it out here. Ms. Robeson: Thank you very much. Mr. Furfaro: (inaudible) it is subject to interpretation. Ms. Robeson: Yes. Mr. Furfaro: But I want to thank you on your other comments and you know I too want to have some time during the process with the County Attorney to talk about this new sixty (60) day application... you had to be operating legally for sixty (60) days prior to your application and so forth, I want to understand that a little more too because I also believe that we could or should be able to defend the original date of the line being drawn in the sand of March 7, 2008 and I might have said 2006 earlier... Ms. Robeson: I wish. Mr. Furfaro: But you did understand when we had the Kobayashi interpretation in the 90s I mean it kind of like said well it's not legal but it's not illegal in this interpretation and that's where it really blossoms... Ms. Robeson: Right. Mr. Furfaro: Thank you very much for your testimony. Thank you Mr. Chair. Chair Asing: Thank you.:Is there anyone else? Mr. Mickens. Mr. Mickens: Thank you Kaipo, for the record Glenn Mickens. I dust want to compliment Caren, Barbara and Mel for their diligence in trying to keep Kauai/Kaua`i. The proliferation of development must stop, I realize that legal aspect just as Jay has so vividly pointed out is a huge part of this problem and you know it's going to have to be addressed. I don't know where the... I don't know what the answer is because I hear Mel about the State law, I hear about the taking sort of speak and you know they both make a lot of sense to me. A few years ago Kaipo you did a huge presentation in this Chambers... not this Chambers but the other Chambers with maps all over the wall showing the proliferation of these COUNCIL MEETING • - 39 - • May 26, 2010 TVR,'s in none VDA areas and you know it was bad, you pointed out, you were one of the biggest opponents to having this happen but nothing really happened and at this stage of the game I only see the problem exacerbating and again I don't know what the answer is but I think it's going to have to be solved, I certainly appreciate you know Caren has been one of the big (inaudible) down there and in the Ha`ena area for trying to do something about this and her map up there is dust like yours Kaipo is only further proof that this is happening. Anyway again I don't have the answer but I certainly appreciate both sides... hearing both sides of these things, I think there are valid arguments of either side of this. So that's my testimony, thank you Kaipo. Chair Asing: Yes Glenn, I dust want to make a comment to your statement about you know the presentation that I made to show the proliferation and the extent of the TVR, units, I want you to know that we did so-call take care of it, we passed a law that is in effect today and I felt that that law that is in effect today is a good law. And I want to live with that law. What we're doing now is we're amending that law and that's the difficulty but we did in fact work on it and came up with what the Council at that time felt was a reasonable solution, that reasonable solution that took place is in effect today. But this Council has chosen to review that and change that law so that's what we're talking about today. Mr. Mickens: The law you passed was that going forward did that have to do with the Kobayashi. Mr. Furfaro: He's referring to the bill that we passed in 2008, March 7, 2008. Mr. Mickens: Oh, oh as of 2008. Chair Asing: Yeah that's... Mr. Mickens: And now this bill is supposedly going to amend what you passed? Okay well I would be highly opposed to anything that... the work that was done on that particular thing gets passed and this gets amended... thank you Kaipo. Chair Asing: Thank you. Is there anyone else? Mr. Taylor. Mr. Taylor: Chair, members of the Council, my name is Ken Taylor. If this bill that's before you really approves upon the existing bill that's in place, there should be some consideration. But if this bill is going to water down the bill that was passed and agonized over several years ago, over a long period of time, if this is going to water down that bill you should really think hard about moving forward with it. I think it's sad... I think it's sad once we get a good bill in place that we go back and monkey with them and make it less appetizing to the community in general I mean rules and regulations should be set for the greater community not for individual business people per say and I think that from what I'm hearing and what I've read in this document that there's some real questions as to whether or not this bill is going to be beneficial in the long run for the whole community and so I really hope that you'll think twice about moving forward with it at least in its current form, thank you. Chair Asing: Thank you. Yes go ahead Councilmember Furfaro. Mr. Furfaro: Real quick Ken... yeah we all worked very hard, I worked all the way back to the General Plan, to the CZO and we keep hitting these hurdles but this bill is addressing what we passed in 2008 finally even though the COUNCIL MEETING • - 40 - • May 26, 2010 Kobayashi opinion came out in the 90s. This big change is really referencing areas on Ag land also which in fact for many years had been paying transient accommodation tax and government (inaudible) subdivision units State and County had been receiving benefits from that. So there is also this question about their right to appeal, that's this Waikiki Market Place piece and so we're trying to find ourselves in those loopholes if I can say... to tighten it up. Some of that tightening up might be dealing with just look six (6) years of public notice discussion, the line is drawn in the sand you had to be in compliance with taxes, with the use of building permits and so forth and we go from there and managing it with future inspections and all of those particular pieces. This ordinance never touched on Bed and Breakfast, it doesn't touch on Bed and Breakfast, Bed and Breakfast are many of our farming community has that as secondary income so you know there are some things that I want to make sure you understand is after this review and still trying to use the March 7th deadline for appeals, we have to tighten up, that's the purpose of this bill. Okay? Mr. Taylor: If it's tightening things up that's great but there was a lot of questions being raised or concerns raised by Caren and Barbara... Mr. Furfaro: I understand... Mr. Taylor: That... Mr. Furfaro: I don't think either of them went to law school like I did not go to law school either. Mr. Taylor: Right. Mr. Furfaro: We defend... we depend on legal opinions to tell us how we close this things and I have to share with you, you know when you have good attorneys in a room and there in a court room, one (1) wins... the other lose. Right? So that's only a fifty percent (50%) success ratio. Mr. Taylor: Right and they're both good attorneys'. Mr. Furfaro: Yes. Very good you got my point. Thank you Ken. Chair Asing: Is there anyone else who wants to speak on this item? If not I'd like to call the meeting back to order. There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows: Chair Asing: I believe we have a motion... Mr. Nakamura: We have a motion and a second. Chair Asing: And a second. Is there any further discussion? Councilmember Bynum. Mr. Bynum: Thank you Mr. Chair. I just want to say what I said before and put this bill in perspective from my opinion and what... at least by 2000 we knew that there was a problem with vacation rentals outside the VDA, I think we knew way before that. But it became very apparent in the year 2000 when the General Plan said County fix this, this is a problem. When Mr. Kobayashi and the County Attorney at the time gave an opinion that said if you think these are illegal outside of the VDA, they're not, and Council it would be prudent if your COUNCIL MEETING • - 41 - • May 26, 2010 intention is to make them be in the VDA that you address this issue legislatively, that was in the year 2000, okay? What was happening between 2000 and March 7, 2008? Why did it take eight (8) years and if you wanted to do a study, you would find out that many of these vacation rentals were started and were created in that eight (8) year period. I wasn't on the Council until 2007 and right away I was in favor of as quickly as possible regulating vacation rentals and making it very clear that as of this point no new vacation rentals will be allowed. It took till March 7, 2008. And you know prior to that we had a unanimous vote on a bill that drew that line, when the bill got reconsidered and starting adding provisions that said that address people who were already operating and said oh if you have this zoning violation, you can't continue. If you are on Ag land, you can't continue. I eventually voted against the bill not because I didn't... the seconded bill the reconsidered bill... not because I didn't want to regulate, I always did but because I thought it was going to cause problems for us because there were provisions in the bill that in my opinion overreached and were going to cause problems for the county. And this bill before us is an attempt to make sure not to circumvent the law but to make sure that we apply the law correctly, that we are in compliance with the law. Now there's been mentions of 464 and Waikiki Market Place that has to do with provisions in the original bill that said if you have a zoning violation, you know existing on March 7, 2008, you're not going to get to continue. Well my reading of this Hawaii State Supreme Court has said you cannot do that. You know if you were... if you have zoning violations, you address the zoning violation and you fix it because you have a law for that. So this bill does not eliminate any of those requirements, those were requirements exist in law and if people violate them, we have a mechanism to address that and see that it's corrected and if... and it's a whole separate set of laws, this bill does not impact those laws. What this bill says is if people have violations in those laws we have consequence and a redress of those laws but you can't use that to deny use. Chair Asing: Councilmember Bynum? Mr. Bynum: May I speak Mr. Chair? Chair Asing: Let... Let... Mr. Bynum: Do I have the floor? Chair Asing: You have the floor but I want to remind you that there are some items that you are discussing that were discussed in Executive Session and you cannot... cannot by law discuss those issues on the open floor? Mr. Bynum: Mr. Chair... Chair Asing: So be careful of what you make reference to because if these issues that you're making reference to was discussed in Executive Session, they cannot be disclosed in open session, so I want to remind you of that. Mr. Bynum: Mr. Chair... I will take that caution very seriously as I always do. I'm talking about my own reading of 464 and Supreme Court decisions that I have... that any of us can look at. Right? So I believe that I'm not discussing anything that was discussed in Executive Session. Chair Asing: I don't happen to agree with you but we will have the County Attorney look at that at a later point but I just want to remind you. Mr. Bynum: Okay fine. So... with regard to... see I hate it when I lose my train of thought. People have come up here and address questions and COUNCIL MEETING • - 42 - • May 26, 2010 concerns about this bill, I have questions and concerns too, and that's part of the democratic process. And I value the scrutiny that our community members give these bills because we do a better fob when we have to address those questions. That's a very positive thing. This is... this bill here is at First Reading, it's a draft, and I've never... I rarely see a bill go through this Council that doesn't get amended based largely on that scrutiny that we get from the public because that's a very positive thing. And I expect that that will happen in this instance too but this bill does not make vacation rentals on agricultural land legal that is a State law. This bill allows those people to apply and go through a due process to determine that, the original bill that we sent said if you're on Ag, don't even apply and I believe that was an error. And so you now I think we're at the beginning again of a long process to determine that we treat each individual in this community legally, fairly and appropriately and I'll say one thing about tax, I supported a bill last term of comprehensive tax reform that would have taxed vacation rentals based on their use as a business and would have changed that and that's an issue that we still need to address, if that bill would have passed, it would have been addressed already. So this is a beginning of a process, we're at First Reading, we have public hearing, we listen to the questions and concerns, we have lots of meetings, we make amendments if necessary to try to address these concern and the most important thing I want to say is, March 7, 2008, finally after eight (8) years or more... the this Council said no new vacation rentals outside of the VDA that... this bill does not attempt to change that at all, okay? But I'll pose that question, why did it take eight (8) years, what happened during that eight (8) year period? Addressing some of these community issues, shouldn't take eight (8) years. Chair Asing: I have a question for Councilmember Bynum, did you... did I hear you say that State law says you cannot have vacation rentals and you agree with that? Mr. Bynum: No I didn't say that. Chair Asing: Okay thank you. Mr. Bynum: I said this bill doesn't say... Chair Asing: No... I thought you made the statement that State law says no. Mr. Bynum: No and if I can answer that question... Chair Asing: Okay go ahead. Mr. Bynum: I've said many times that the State law related to what you can and cannot do on agriculture is convoluted, is not equally interpreted by each county. There are many opinions and we need clarity, perhaps the recent attorney and General's opinion which is fairly recent will help provide that clarity but it is certainly not clear I feel safe about that. Currently different counties interpret it differently. What I did say is that this bill would give an opportunity for those people who had been operating prior to March 7, 2008 to make an application to have a due process to determine whether their continued use is legal or not. Chair Asing: Thank you. Is there any further discussion? Yes go ahead Councilmember Kawakami. Mr. Furfaro: Excuse me Councilmember did you want to call the meeting back to order before you go to the Councilmembers. COUNCIL MEETING • - 43 - • May 26, 2010 Chair Asing: It's in order. Mr. Furfaro: Oh you did, I'm sorry. Boy that's the second one I missed today... Chair Asing: Yeah. Mr. Furfaro: My apologies. Chair Asing: Yeah go ahead. Mr. Kawakami: Thank you Mr. Chair and with all due respect, I'm not going to rehash all the reasons why I voted no the last time but it's all the same reasons, it's all tied to 205, it's tied to my interpretation of the State law and so it still stands as it is, so I'll still be voting no on First Reading. And I respectfully disagree to the point where I don't really think it's that convoluted. You know there's a section in the State law that says uses not expressly permitted in subsection (A) shall be permitted and in simple layman terms that means... that's not on the list, that's not allowed. And this use is not on the list. So in my simple interpretation... Istill stand behind my original arguments and with this State of Hawaii Department of Attorney General opinion addressed to Ms. Sandra Lee Kunimoto is the Chairperson of the Board of Ag, it dust further solidifies my arguments and I stand behind my previous arguments so I'll be voting no. Chair Asing: Thank you. Councilmember Furfaro did you... Mr. Furfaro: Yes you know... I guess this is one of those fifty/fifty (50/50) interpretations because on the flipside we have something on the State law that says if it's not permitted then it's prohibited but nowhere along the line did the State say here's your check back, that's what bothers me so I just wanted to say and I will be voting for the bill so we can get some clarity. Chair Asing: Thank you. Is there any further discussion? If not I'd like to make some comments. I will not be supporting this and I haven't prepared anything, I will prepare something when it gets to the full Council. Just a few comments and you know Councilmember Furfaro I know that you know you feel that as an example that you gave on the conservation district that you know in twenty-five (25) years we were collecting general excise tax, TAT taxes and then what about that. But I need to tell you that the term that I use is let's not let an illegal activity however long it has been taking place to continue. That's where I'm coming from. An illegal activity, when do we say I had it, it's... enough is enough... it has been illegal all this time and it's gone now because it is in fact illegal and it was illegal. Now in the case that Councilmember Furfaro has made reference to in the conservation district that is exactly what they did. The twenty-five (25) years of collecting this, what did they do? They said no more. It's all over, it's done... you cannot in fact have vacation rentals on those lands and that's where I'm coming from. Let's not let an illegal activity continue and of course how do you... how do you not give credibility to the Attorney General's Office's opinion? No credibility? State Attorney General who is in charge of the State and its Departments and they answer one of their Department's concerns and the answer is no, you cannot allow that... is the answer from the Attorney General's Office so it's difficult for me to go against the Attorney General. There are other opinions, opinions that I am not at liberty to say at this time, some of the things that we discuss in Executive Sessions are not something that I can discuss in the open, but I can tell you as an example, on the Hokulia case and you talking about illegal activities that was ongoing a long period of time and then Judge Ibarra makes a decision that... hold on... so you know there are other areas that I look for to make my decisions on whether I feel COUNCIL MEETING • - 44 - ~ May 26, 2010 it's legal or illegal or what is the right thing to do so I use those kinds of informations to make my decisions. So I... like I say I won't... you know there's a lot more that needs to be reviewed, I am looking at all of the issues, I will say one thing though... I will agree with some Councilmembers who feels that there are portions in the bill that needs to be fixed, I agree. I agree with that but the amount and numbers of areas that is being fixed... to me has gone beyond the line of illegal activity, I will not condone. So that's where the difference is between where I stand and where other Councilmembers stand and I will respect the system. We have a good system, we have a democratic system and we will go on from here and continue and everyone will do their homework and come up with their points of view and we will put that together and hopefully come up with something that is satisfactory to all. So with that... Ms. Kawahara: Mr. Chair? Chair Asing: I'd like to call... Mr. Furfaro: Mr. Chair you have another... Chair Asing: Oh yes... oh I'm sorry go ahead. Ms. Kawahara: Since it's been brought up many different times, I would like to ask the County Attorney just for a general idea of what the weight of the Attorney General's opinion of that we've been getting information on, and he's here... he said he's willing to do that. Chair Asing: Well I'm not going to make... Ms. Kawahara: Since it's been brought up so many times. Chair Asing: Well I'm not going to make a statement for the County Attorney but you asked the question and I need to respect that and I will so with that... County Attorney please. There being no objections, the rules were suspended. Ms. Kawahara: Thank you. If you could address some of the issues specifically the weight of the General Attorney's opinion in relation to this kind o£.. Mr. Castillo: Council Chair, members of the Council good afternoon. For the record Al Castillo County Attorney. You know for this Council and for our general public the Hokulia decision by Judge Ibarra, the AG's opinion and the opinion that I've heard many times by Mr. Mel Rapozo, discussion on the relevant statutory chapters... you know the way that I can answer that question without breaching the Attorney/Client privilege that we have regarding the Council and your legal counsel which is myself and my deputies, bill 2364 I echo what Councilmember Furfaro basically had said, what we are trying to do is address the due process issues. I don't want to venture into opining on the level of legality that it is because it does expose the county in that regard but I am concerned when Councilmembers discuss their opinion regarding any statutory provision then that is... I'm not saying that you cannot state your opinion on the record; however, you know I do advise my clients dust to be cautious about what you say regarding your opinions of the law because I don't want such to be held against us if your legal county ends up in court and what we say in public is held against us. But I would like this council and the general public to know that we have extensively reviewed Hokulia, reviewed the Attorney General's opinion, reviewed the necessary laws and all of that has been and can be further discussed in Executive Session so we know COUNCIL MEETING ~ - 45 - • May 26, 2010 exactly what the AG's opinion said and how it can be reconciled, compared, and contrasted to what you want to do regarding bill 2364 and that's the best that I can answer it. Ms. Kawahara: Thank you. I appreciate some light. Mr. Castillo: Anymore questions? Mr. Furfaro: I have. Chair Asing: Go ahead Councilmember Furfaro. Mr. Furfaro: This is not a question... you know I have great respect for the Chair in place and I've been with the Chair now seven (7) years, so through some challenging policies and I also serve on the Council with Mr. Rapozo, I just wanted to thank the County Attorney for making reference to our need to follow due process of law versus comments that might have implied something illegal. So thank you for that clarification on the stand. And I hope you understand my point. I want to make sure that we turned every stone this time so thank you Mr. Chair... Chair Asing: Yes. Mr. Furfaro: And I do want to say I do have great respect for your leadership but on this one maybe you and I look at it differently. Thank you. Mr. Castillo: Thank you. The meeting was called back to order, and proceeded as follows: Chair Asing: Thank you. Any further discussion? Yes Councilmember Chang. Mr. Chang: Thank you Mr. Chair. I want to ask you Chair humbly I actually need more time of this decision. I know we discussed it for a long, long time but there's a lot of history that's going on here and like we say fifty percent (50%) here, fifty percent (50%) there, there's a winner and there's a loser and it's like flipping a coin. But I believe I need more time to make a... make myself a decision that I can live in peace. Chair Asing: Ah... let me... boy that's a little tough question for me... and the reason why I say that is process. Let's talk process a little bit. The normal process for a bill is to go through the First Reading process. First Reading process really means it's a technicality. In other words if we want to discuss this bill in its entirety, full discussion, full investigation, full knowledge of what we need to make a decision, it can only happen if it passes First Reading because when it passes First Reading here's what happens. The first thing that happens it goes to the public for the public to comment so now we start to get this information, we get the public saying this is wrong, this is right, this is no good, this is good... so we get all the public information, then after we get the public information, we also send information to the Departments, the Planning Department, other Departments for more information... now we get that information, so we get all this information through that process... then it comes back and it goes to the Committee that handles this. On the Committee level again same thing happens, we get the public involved, we get Councilmembers involved, we get the Departments involved and the discussion goes on and on. And from there the decision is made. So you know that's really the process. And so it's difficult for me to say you know you need a COUNCIL MEETING • - 46 - ~ May 26, 2010 little more time, yes you need a little more time... granted... it's not easy but if you look through at least that process, you will get all that information that you're looking for. Mr. Chang: That's what I was asking for. Chair Asing: You know so that's really my answer to you. Now in my case I'm going to vote no, I said I was going to vote no, I have all kinds of information available to me today. That I've had for years and years. So I have most of my information already. And with all the information that I have I have come to the decision and conclusion that it is wrong, it should not happen, it's an illegal activity as far as I'm concerned. So you know I would suggest going through the First Reading process although like I said I won't be voting for it only because I feel so strong that I have enough information for me to say I don't even want to go there because I think it's wrong. Mr. Chang: And respectfully I understand and I don't have the history and I need to clarify a few questions that I have and I'd like to be able to read about it and study about it and that's how I feel that that is what I need to do to give my vote of yes or no. Because when I give a vote I want to vote with what I know and vote from my heart so that's why I'm respectfully saying that, I don't have the history and it's not an easy subject listening to both sides as I said because like I said it's fifty/fifty (50/50) so, I understand. Thank you. Chair Asing: Thank you. With that Councilmember Kaneshiro did you... Mr. Kaneshiro: Well actually I was going to speak about what you talked about. Basically this is a process whether we vote yes or no at the end of the bill is a whole different discussion. What I see here is that we need to setup a process in which is the public hearing, schedule public hearing on the 23rd at such time it will create the discussions back and forth also from the community, also from the people involved and after that we will sit down in Committee and make decisions. So to not to move this along to that point, to me is senseless because basically what we're saying if we receive this right now, it won't even move through that process, nobody will have the opportunity to speak on this issues, we won't have opportunity to go into Executive Sessions with the Attorneys to discuss some of the recommendations that findings that came from the Attorney's Office, this is the process so I'm ready to call for the vote and set this process in motion. Mr. Furfaro: With that Mr. Chair if I can be recognized. Chair Asing: Sure. Mr. Furfaro: I did approve a motion to be approved with scheduling a public hearing with the second on June 23 and I too would like to call for the vote. Chair Asing: Thank you. With that roll call please. The motion passage of proposed draft Bill No. 2364 on first reading was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, TOTAL - 5, Kawahara, AGAINST PASSAGE: Asing, Kawakami TOTAL - 2, COUNCIL MEETING ~ - 47 - ~ May 26, 2010 EXCUSED & NOT VOTING None TOTAL - 0. Chair Asing: Thank you, motion carried. What I'd like to do is I'm going to move the next bill to the end of the agenda. With that can we have the next item please. Mr. Nakamura: On page seven (7) of the Council's agenda we have Bill No. 2348, Draft 1. BILLS FOR SECOND READING: Bill No. 2348, Draft 1 - A BILL FOR AN ORDINANCE AMENDING CHAPTER 19, ARTICLE 3, SECTION 19-3.2 AND SECTION 19-3.3 OF THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO PLAYING FEES AND REGULATION OF PLAY AT THE WAILUA GOLF COURSE Chair Asing: Peter? My... Mr. Chang: I think we skipped the Farm Worker... Chair Asing: So you're on Bill No. 2348 right now. Ms. Kawahara: He moved it to the end. Mr. Nakamura: We're at the top of page seven (7) Bill No. 2348, Draft 1. Chair Asing: Okay. Can I have a motion to approve? Ms. Kawahara: Wait what are we on? Mr. Furfaro: 2348. Chair Asing: Can I have a motion to... Mr. Furfaro: Move to approve. Ms. Kawahara: Second. Mr. Furfaro moved for adoption of Bill No. 2348, Draft 1, on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Ms. Kawahara. Chair Asing: Thank you. I believe we have an amendment so can someone make a motion to amend as circulated. Mr. Furfaro: The amendment came by Mr. Chang and I will make that motion as circulated. Chair Asing: Mr. Chang would you like to explain your amendment. Mr. Chang: Yes thank you. Well first of all basically Bill No. 2348 we're just doing a housekeeping type amendment, the definition requires a person to provide proof of residency through either a Hawaii resident State income tax return or through voting in the most recent general or primary election in COUNCIL MEETING ~ - 48 - ~ May 26, 2010 addition to a Hawaii drivers license or State ID, the last sentence in the definition states the income tax return shall bear the county of Kauai address, this is... Mr. Furfaro: Excuse me Mr. Chang... it was my error I moved to accept your amendment and I said... I made the motion and when the Chair recognized you, I had not have a second. Chair Asing: Oh I thought we had a seconded. Ms. Kawahara: Second. Mr. Furfaro moved to amend the bill as shown in the Floor Amendment attached hereto (Attachment 1), seconded by Ms. Kawahara. Chair Asing: I thought we had a second but I... Ms. Kawahara: This is for the amendment yeah? Mr. Furfaro: Yes. Ms. Kawahara: Yes second. Chair Asing: Oh okay. Go ahead Mr. Chang. Mr. Chang: Can I start all over. Chair Asing: No. You can continue. Mr. Chang: Okay I will continue. What does that mean strike one (1) on me? Chair Asing: No. No... you're doing well. Mr. Chang: Thank you.... This is an inadvertent error that should have read the income tax return shall bear a Hawaii resident because the rate is for all Hawaii residents and not just limited to Kauai. The second correction is in Section 19-3.2 (B) which establishes the playing fees, the seventy- five (75) dollar and over... I beg your pardon the seventy-five dollar and older age category are called Super Kauai Seniors in the definition sections. This amendment makes the title in the playing fee portion of the bill consistent with the definition section by adding the word Kauai to Super Kauai senior rates. And the second page of the amendment basically to amend Bill No. 2318, Draft 1 by amending the definition of resident to read as the follows, resident means a person who has filed a Hawaii resident state income tax return form N-11 or form N-13 for the most recent tax period, voted and voted in the most recent general or primary election in the State of Hawaii or... Ms. Kawahara: And. Mr. Chang: I beg your pardon... and possess a valid Hawaii drivers licenses with a Hawaii address on it or a valid State of Hawaii identification card with the Hawaii address on it and all active duty military personnel stationed in Hawaii. Persons who are not residents are also defined and deemed as nonresident. Nonresident, the income tax return shall bear a Hawaii address and on the bottom we did highlight the Super Kauai Senior and those would be the changes in the amendment. COUNCIL MEETING • - 49 - • May 26, 2010 Chair Asing: Thank you. Councilmember Bynum. Mr. Bynum: I appreciate this amendment Mr. Chang and I just wanted to take this opportunity to clarify that... in this current wording voting or having a tax return is a provision to establish residency, it's not... it doesn't require voting because it's an or. Mr. Chang: Correct. Mr. Bynum: I just wanted to clarify that. Chair Asing: Okay any further discussion on the amendment? If not all those in favor say "aye" Councilmembers: Aye. The motion to amend Bill No. 2348, Draft 1, was then put, and unanimously carried. Chair Asing: Motion carried. Now we're back to the main motion as amended which is on the bill itself 2348 as amended, any further discussion? If not... yes? I'm sorry go ahead. Mr. Chang: Thank you. I just wanted to add that I think within this amendment we diluted that the fact that we're going to be dropping the tourist rate to forty-eight dollars ($48.00), I think it's a really good thing. I had a opportunity to play at the Wailua Golf Course recently this past Saturday and it is a very, very spectacular course. I believe that the visitors can now... Okay in relationship to the bill, the rate... we dropped the rate down to forty-eight dollars ($48.00) I believe it helps out the pro shop a lot; I believe that helps out the restaurant and the lunch snack shop and playing the golf course it is... I haven't played the course for over ten (10) years and I dust want to say it's a... over ten (10) years... Mr. Bynum: Wow. Mr. Chang: True statement and I couldn't remember the golf course, it's very, very well maintained, it's a very, very beautiful course, the views and vistas are spectacular, and I know that the visitors and residents are certainly getting their money worth. So I really appreciate the fact that we can accommodate the visitors but also help out the venders out in Wailua Golf Course, thank you. Chair Asing: Thank you. Any further discussion? If not roll call please. The motion for adoption of Bill No. 2348, Draft 1, as amended herein, on second and final reading was then put, and carried by the following vote: ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING None TOTAL - 0. Chair Asing: Thank you. Next item please. COUNCIL MEETING • - 50 - • May 26, 2010 Mr. Nakamura: Next bill for Second Reading is Bill No. 2350, Draft 1. Bill No. 2350, Draft 1 - A BILL FOR AN ORDINANCE AMENDING CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO ZONING DESIGNATION IN WAIMEA, KAUAI (C. Ahko Inc., et al., Applicant) Mr. Kaneshiro: Move to approve. Mr. Bynum: Second. Mr. Kaneshiro moved to approve Bill No. 2350, Draft 1, seconded by Mr. Bynum. Chair Asing: What I'd like to do is open it up to the public at this time, is there anyone in the public who wants to speak on this item? Mr. Nakamura: Mr. Chair, we have two (2) registered speaks Julia McGovern, followed by Linda Harmon. Chair Asing: Okay Linda please. There being no objections, the rules were suspended. LINDA HARMON: Can we hear the Attorney's argument first? Chair Asing: Pardon me? Ms. Harmon: Can we hear the Attorney's argument first so we know how to respond? Mr. Furfaro: Excuse me... Chair Asing: Excuse me come to the mic so I can hear you. Ms. Harmon: We went first last time, we'd like the Attorney to go first this time so we can hear his arguments are and then we can... Chair Asing: Ah you know I... I don't want to start getting into logistics, you requested to speak... Ms. Harmon: Yes. Chair Asing: And you want to speak... so why don't you just go ahead and do it. Okay? You want to speak? Ms. Harmon: She's... I think... Chair Asing: She wants to go first? Okay that's fine. JULIA MCGOVERN: I guess it is good afternoon. My name is Juha McGovern. And I was hoping to hear from Walton Hong because it was concerned that it might temper any comments that I have but what's... so what I would like to do right now is to read some eloquent testimony from the Seirra Club Executive Committee of the Kauai Group of the Hawaii Chapter. Dear Planning Committee Chair Furfaro and Councilmembers. We strongly urge the council to deny this zoning amendment which intends to up-zone a parcel designated Open District to COUNCIL MEETING. - 51 - • May 26, 2010 Residential R-4. Up-zoning would be contrary to the General Plan which looks to preserve and protect the rural character of Kauai. More importantly, parcels that are zoned Open often have constraints due to flooding, slope, or other challenges detrimental to development. This is true for the Ahko parcel in the floodplain of Waimea, adjacent to an active drainage canal. Article 8, Section 8-8.1(b) states that the purpose of the Open District is to preserve, maintain or improve the essential functions of physical and ecological systems, forms, or forces which significantly affect the general health, safety and welfare. Historically, flooding is already a problem for the immediate neighbors and increasing density will put them at greater risk. Article 8, Section 8-8.1 (c) also states that the purpose of the Open District is to define and regulate use and development within area which may be potentially hazardous. Bordering this parcel is Kealii Ditch, a waterway known to overflow. Increasing density and impermeable surfaces on this property will clearly exacerbate flooding. The applicant's representative, Mr. Hong has often stated "it isn't fair" for this parcel not to be granted the same zoning as neighboring parcels. However, up- zoning would be unfair to the surrounding community. When this issue came before you in 2006, 130 residents signed a petition against up-zoning to R-6. The difference between R-6 then and R-4 now, is negligible. This parcel is designated by FEMA as a flood hazard area that is also subject to areas of ponding water. Its Open District zoning has been in place for several decades and throughout that time, the re-occurring flood and drainage hazards indicate that current zoning is appropriate. The landowner is certainly allowed use of the property within the current zoning parameters. It is your responsibility to direct development away from flood-prone areas. There is no compelling need to up-zone this property. Please vote no on Bill 2350 to deny this zoning amendment. Respectfully submitted for the Sierra Club Executive Committee Kauai Group of the Hawaii Chapter. On a more personal level, I also respectfully request you to vote no on this amendment... on this bill. Mahalo. Chair Asing: Thank you. Can we have the next speaker please? Ms. Harmon: Thank you for your time Council. My name is Linda Harmon. And it has been suggested that the parcel in question was made Open Space in the General Plan so that the county could expand the park at a later time. It's been said that even if there were a want for park expansion, there is no money for park expansion. One reason this needs to be left Open is there is bound to be a need for park expansion in the future with the way homes and the populations are going up in the Valley, in Waimea Valley I'm speaking o£ There may not be money to buy the land, that doesn't mean there will not be money in the future. We were told the other day that a purpose for, the consideration for expansion of the park needed to be proposed. We submitted a purpose asking for a wetland community garden orchid. And then we were told it was too late. So one reason for keeping it Open is the need for a larger park at a later date. Another reason for keeping the parcel Open is the issue of flooding; the county has no legal obligation to the Ahko family to be fair about the zoning. In fact as the official letter of the Sierra Club authored by Rayne Regush says it is unfair to the rest of the neighbors to build more houses on this acre lot. It will increase the potential for flooding in this neighborhood. I was told that the Engineering Department would address the problem of ditch backing up during heavy storms; the problem is the ditch water backs up and can't be fixed. The problem is the ditch water backup COUNCIL MEETING • - 52 - ~ May 26, 2010 cannot be fixed. If there is a storm during high tide, the gates to the levee can't open to release the ditch water. By building there we increase the risk of flooding from hard surfaces.like roofs, roadways and park parking. (3 minutes) Chair Asing: Okay. Go ahead continue. Ms. Harmon: The water has to go somewhere. Of the request for permission neighbors that Ahko received, for the rezoning... seventeen (17) of the fifty (50) residents gave permission, approximately 1/3 notified, that is no way a majority consensus that this building shall proceed. Because the levee is no longer certified, homeowners insurance won't cover flooding. The neighbor has to shoulder more expense for flooding. The county must rule on the good for the community rather than fairness to one (1) property owner who wants what the others in the neighborhood have in the way of zoning. Thank you. Chair Asing: Thank you. Is there anyone else who wants to speak on this item? Yes? (inaudible) Chair Asing: We can get a portable mic to you. DING ALTIMORI: My name is (inaudible) Altimori. Most people here know me as Dino. I live right on the ditch or the stream or whatever you want to call it. And I've been there during numerous flooding situations. One thing I do know is that we're not prepared to deal with the flooding of this ditch. I tried to find it but I couldn't... we have a picture of my son rowing a canoe in my front yard a couple years ago when we had this big heavy rain. The area is not prepared for heavy rains and flooding. What you do is up to you but it seems to be a liability here that we're not addressing and the liability is um... what do you do with all this water when it comes into your house? Somebody got to deal with it and as the previous speaker said... there seems to be a problem with flood insurance which I wasn't aware of, I thought I had flood insurance. But I think that needs to be taken into account and if nothing I have this decision delayed to a later date so it can be addressed more properly. I'll take any questions I wasn't prepared to speak so I'll be glad to answer any questions anyone has. Chair Asing: Councilmembers any questions? No? Thank you very much. Mr. Taylor. Mr. Taylor: Chair, members of the Council my name is Ken Taylor. I want to address a couple issues on this bill. First of all in item 1(a) where you talk about deed restrictions and the potential nuisances raised by activities at the park. I think the deed restrictions should also refer to the potential of the flooding problems so that new homeowners will be made aware of the potential problems that they could encounter. Second of all I would like item 1(c) and along in the third paragraph... line of the section and just... along the natural drainage ditch. Now I went down and picked up a map of the whole area but... a dug out some individual maps but on one map of an area below the parcel in question and this map was dated January 26, 1972 the ditch, the natural drainage ditch is referred to as stream. Now there's big differences between ditches and streams and how they're dealt with. When that parcel was subdivided in January 94 again it's referred to as a stream and so I think before you move forward with this because I certainly believe that streams are dealt with much differently than ditches and so I think that has to be clarified before you move forward with this process. The other COUNCIL MEETING • - 53 - • May 26, 2010 thing after getting the map and looking at it and talking with some of the neighbors, I realized that along the North side of the ditch, there is a current easement, it's ten (10) foot. When I talked with the maintenance Department at Public Works they told me that it was not adequate for them to get equipment in there with that particular easement and that they couldn't put men in this ditch because they got very sick and I think even Julia and this gentleman Dino indicated that yes indeed if you get down in that ditch, you're going to get sick. (3 minutes) Mr. Taylor: So my feeling is that... a new easement along that opposite side of the ditch or on this property side to the ditch should be included in this subdivision parcel so that Public Works can properly get the equipment in there that's needed to maintaining and cleaning the ditch. The reason why I asked about it was because when I visually looked at the ditch, it's overgrown, it's a mess and if you can't get manpower down in the ditch, it's a health and safety issue that has to be addressed and there has been no discussion at that and I really believe that to move forward with this subdivision of this property without including an adequate maintenance easement to address this ditch problem is very wrong; I mean it's been brought to your attention that there's... when the tide is high and the right rain event takes place there's no place for the water to go and I think that's an issue that needs to be addressed in the future. What is the county going to do for this area to resolve this kind of problem? Thank you. Chair Asing: Thank you. Is there anyone else who wants to speak on this item? Joe. JOE ROSA: For the record members of the Council, Joe Rosa. I've been hearing this thing going on, tossing around up and down... it seems the controversy is the ditch. Now from what I worked here and lived here ditches were provided for the taro growers in the old valley system, under the old Hawaiian days. Now if there's no more use for that ditch anymore to supply water which is basically the intentions of ditches throughout the valleys, you go every valley there were kuleana ditches were providing water for the old Hawaiians. Now if there's no use for that ditch to bring water to the taro growers or the rice growers, dust close it up. But if that ditch is there for drainage... well that's something else but I never heard it being used for drainage, this just drains into the valley. So if that's the problem, correct it, simple as that. Don't use it as something that to prevent someone to come in and use the land. And anytime people build within the flood zone area, it's their problem, they either have to raise it off the ground when they grant to permits. They tell you sometimes you have to raise it eight (8) feet, you raise it eight (8) feet if you want to build it in the flood zone area. So it's up to the individuals, the Ahko's has that property, they're not planting rice anymore, they don't need that ditch down there that far down already, probably they can cut up way up mauka. Simple as that. So don't penalize someone that has owned land for a long while and if that ditch continues to be a flooding problem, close it. There's no farmers, no taro growers. Simple as that. Thank you. Chair Asing: Thank you. Is there anyone else who wants to speak on this item? Walton. WALTON HONG: Thank you Mr. Chairman and members of the Commission, for the record my name is Walton Hong representing C. Ahko Inc., the landowner. I guess just a few words and I'll be available to answer any questions since most of the issues, discussed has already been rehashed before. I don't agree with the statement made that the county have an obligation to be fair. I think the county has an obligation to be fair, to be reasonable, to be logical. This property, COUNCIL MEETING • - 54 - • May 26, 2010 the rezoning is consistent with the General Plan. The record is very, very clear there's no question about it. The only reason why this property was not zoned residential R4 like everybody else around it was for the possible expansion of the park. The record is very clear also that there is no plans for the expansion of the park, there is sufficient parks in the Waimea area that can be expanded. So all we're asking for is treat us like everybody else. Now we've been blamed for the flooding, I think if you look at it the flooding does not start from... higher lands going down lower, it starts from the river mouth backing up. This property is above or higher than the lots that are being flooded that closer to the river mouth. How do we get blamed because the water cannot go to the ocean, are they saying well it's your problem because somebody messed up whatever the facts maybe why the river mouth can't be open but let that be an engineering problem, we have to meet certain requirements under FEMA, under flood control standards. If they say... one of the other speakers say if they wants us to build above a certain height limit, we will... just like everybody else, that's all we're asking. Now is there a need for a additional easement, that is correct there already an already existing ten (10) feet easement on the other side of the ditch for the purpose I assume for clearing or maintaining of the ditch because that easement is (inaudible) for the County of Kauai. Why do we need another ten (10) foot easement on the other side, I mean all it does is penalizes us when there's already an easement existing for that very purpose. I would also add that if we take ten (10) feet the way the shape of the lot is, it wipes out a significant portion of the property because you have side yard setbacks and now you got a lot that shapes like that and you take ten (10) feet from here, and you take five (5) feet from here and pretty soon you have a very narrow unbuildable area, is this fair to the Ahko's when there is no need for additional easement on the other side of the ditch. With that I'll end and ask for your favorable consideration, I'll be glad to respond to any questions that you may have. Chair Asing: Thank you. Is there anyone else who wants to speak on this item? Mr. Taylor. (inaudible) Chair Asing: I thought we did but I am not sure and with that... only three (3), go ahead Mr. Taylor. Mr. Taylor: Thank you Chair, members of the Council my name is Ken Taylor. The reason... the reason the need for the additional easement is in reference to the discussion that I had with Public Works Department is that the current easement is inadequate for them to get in there to service this ditch. In order to get the equipment and get in there and take care of maintaining this ditch, that they cannot man in the ditch, they have to build to get the equipment in. I was told that before the horses were on the property and the property was open, they were able to just drive in there and take care of servicing the ditch. If you're going to restrict them from being able to get equipment in, how do you expect them to maintain this ditch and you can't put the man power... the men in the ditch so you have to consider the safety health issue and I do really believe rather than moving forward with this today, get Public Works down here and discuss this situation so that you have the proper information before you move forward with it. Thank you. Chair Asing: Thank you. Is there anyone else? Did we give her six (6) minutes? Linda? (inaudible): Three (3). Chair Asing: Okay. Come up. COUNCIL MEETING • - 55 - ~ May 26, 2010 Ms. Harmon: I... my name is Linda Harmon and I want to say that the ditch and its backing up has been a problem now for twenty (20) years and it's been exacerbated since the trees were taken out of the lot. The county engineers want to tell you that they can fix this problem but it hasn't been fined in twenty (20) years since this... since Julia was there. There's been the problem with this ditch backing up. Additional water off of those hard surfaces created by more homes above the place where the flooding is doing... or is going on... is going to add more water to the flooding. The county should fix the ditch before this is ever rezoned. To you know to tell you that this can be fixed after twenty (20) years of flooding and for that matter it's increased more recently in 2009 they had really high waters so it's not a good idea to pass this bill. Thank you. Chair Asing: Thank you. Is there anyone else? If not, I'd like to call the meeting back to order. We have a motion and a second on the floor for approval. With that any further discussion? Councilmember Furfaro. The meeting was called back to order, and proceeded as follows: Mr. Furfaro: Thank you Chairman and other members of the Council. I want to let you know and I do want the County Attorney to pick up on this comment along with the County Clerk because I will be sending correspondence over to Public Works. I had requested information and had to seek it on my own regarding water access and management of the ditch easement. The ditch easement exists, it exists with standard ten (10) foot access along the ditch. The perception of it not being enough could be of concern but the reality for either a five (5) foot wide bobcat or a seven (7) foot backhoe, there are access points in easements as well but when I viewed this area it is unfortunate and I need to share this with the County Attorney that people have assumed use of those easement areas and they need to be revisited. I also want to go on record noting that even as I made inquiries with the Building Department about even if an easement existed, I did not hear back from them and I had to do this by other means to get the information. The fact of the matter that you know in our recent Committee Meeting the choice was they were looking for the potential density of eight (8), we successfully negotiated back the four (4) plus two (2), I think was an accomplish (inaudible) of the Council that was based on the feedback that we got from them. And it also in a follow up to Councilwoman Kawahara's question which was a good one, the reduced density reduces the hardening of the surfaces because there's no additional placement of the building envelope. I think we done that by negotiating successfully the reduction of the hardening of the surfaces. The Parks Department indicated that there were four (4) regional parks in the area, near this area... and that if there were moneys available they were going to be earmarked for improvements to other public facilities and therefore nothing is really of immediate need in the area. You know in the FEMA flood zone area and so forth and being from the North Shore, I realize that disclosure is important in qualifying for buying flood insurance. That is owners mandate but there are places where... it is one where you can or cannot actually qualify for flood insurance depending on your area and that is a buyer beware type of thing, it certainly been disclosed at the time of sale but we can't mandate you know the FEMA flood insurance options because we have so much residential that has been built in flood zones on Kauai. I do sense that it is something that can be pursued but the standards of engineering in our whole county are ten (10) foot easements, now if we look for fifteen (15) or twenty (20) because... and I want to know... this was never shared with me from Engineering and that is my disappointment because I did a lot of work on this in asking the ownership to reduce their density yet I did a site inspection on this, flabbergasted to see that our approach to maintaining that ditch is even spraying the other persons yard. Which isn't part of our easement. So for the County Attorney I do want to say I'll be writing you and asking Public Works to get close to COUNCIL MEETING • - 56 - • May 26, 2010 the mandate of managing this drainage easement because it exists and without maintaining it, I think it gives the county some really unnecessary exposure which I think was spoken up by the one gentleman. So it is you know the net outcome here that there is no plan for the park expansion, the easement exists, the easement is a standard that exists mostly through Kauai County. There are constraints in the ditch area but I don't know of any policy that implies that our people could not address something in wetlands and I would be sending over through the County Clerk commentary along with this map, I'll circulate it to you folks right now but if I could have it back, a commentary to them that certainly if they disclose anything to applicants and/or concerned citizens, they should also in advance also share that with us. I worked on this for three (3) days and you know got the applicant to consider a down zoning of two (2) of their additional dwelling units, capping it at fifty percent (50%) and that was driven by not hardening the surface, the surfaces. But the maintenance on the ditch certainly is my concern and I will be writing Public Works. Thank you Mr. Chair. Chair Asing: Thank you. Any further discussion? Councilmember Kawahara. Ms. Kawahara: Thank you Chair. I just wanted to say that I went down and did a site visit also and I'm having a hard time with this one so I'm not sure, I'm not comfortable enough to vote in support of the zoning change but I do want to say what those reasons and why... people have been talking about the parks not... the Administration not foreseeing any reason to be expanding the park but I don't know if we've considered the fact that the Administration changes over the years and that park and that space may come more valuable as time goes on so to look at it in a vacuum and just say at this current time that there's no reason... there's no plan to expand the park I think... I think it ignores the fact that it's possible that another Administration might have plans for it for another time. The second issue that I'm comfortable voting as a part of this is because of the... just the paperwork that we get from the Departments based on the projects that Planning sends out to get their statements, the Engineering Division clearly states that there will be an increase in storm runoffs as a result as the development from Open to R4. Whether or not this is a huge perceptible amount is probably something to be debated but to voluntarily change from Open to R4 we do need to understand that the Engineering Department had said that there will be an increase in storm runoffs and the county will need to address it so we are voluntarily increasing the need for the county to address it... runoffs. The other one is a technical issue the third and last reason, the zoning changes. To make zoning changes, I don't believe it says here that any... how long you owned the property means you know gives you more weight in changing the zoning nor does it say take into account we have so many errors and that's why we need to, we want to divide up the property. The technical reason or way that you can change it is this change in the zoning map or text shall not be made unless the change will further the public necessity and convenience and the general welfare, I'm not sure that we have met that and I'm sure and that's why I'm not comfortable. The fact that we have conditions I'm very thankful that we did put more conditions on because I was very concerned about hardening surfaces even more so I believe that that became a condition. The other conditions do say that the property needs to work with Public Works in dealing with already existing problems with flooding so you can't blame one (1) property for the flooding that's already existing but to acknowledge that it's happening was important to me. So I just want to say that it was hard to do that, to figure this out. And I haven't gotten to the point where I'm comfortable at this time so I'm not going to be able to support it but I believe that it will be going through today and I thank the Councilmembers for their time. COUNCIL MEETING • - 57 - ~ May 26, 2010 Chair Asing: Any further discussion? Councilmember Kawakami. Mr. Kawakami: Thank you Mr. Chair. I want to draw reference to a couple dates because you know the issue with flooding has come up in the past. December 13, 2008 there was a flood in Waimea Valley, Waimea Town... on December 16 I wrote a letter over to the Administration asking for clarification from some constituents that have brought it to my attention that there are gates that are manually operated that when they're opened the water level recedes, so based on that, I think there's another underlying issue behind all of this that we need to take up and I'd like to go to the Public Works Committee and ask for some answers and solutions to this problem. I'd like to send a communication over to Public Works, I did get an initial response and just to quote briefly on it in response to my request on December 16 the Waimea control levee system is in thirteen (13) locations where there are culverts through the levee for the purpose of draining the Waimea Valley and Waimea Town. At each location the culverts are fitted with a flap gate at the point it discharges into the river and (inaudible) gate at or before the levee. These gates are intended to prevent the waters from the Waimea River from backing up into the culverts and discharging into Waimea Valley and Waimea Town. The flap gates are intended to work automatically which in this case they're not working automatically if the river is high. While the (inaudible) gates are manually operated and intended to be used only as a back up to the flap gates. So that being said, I'd like to send a couple of communications out, one to Public Works asking them for their protocol on when these (inaudible) gates are decided upon to be I guess operated as a backup. To me if a town is flooding that's a clear indication that you know let's use our backup plan, so I just want to make sure that we're implementing that and that the intention of these (inaudible) gates are being used. Number two (2) it's pretty clear that a big problem is backup of Waimea River and I've heard you know that the tide may play a roll in it but I also would like to send a communication over to maybe DLNR who I believe is in charge of opening up the river mouths and to see what their protocol is and how often they're opening up the Wailua River mouth and if storms are any indication that maybe somebody needs to go down there and start opening it up. This is a problem that has occurred over the course of twenty (20) years, I think we should be able to get these answers immediately so if we can send those communications out, go through Public Works, I'd appreciate it. Thank you. Chair Asing: Thank you. Mr. Furfaro: Mr. Chair may I answer (inaudible)... Chair Asng: Sure go ahead. Mr. Furfaro: Mr. Kawakami since... Chair Asing: Excuse me? (BC): I have to go to the bathroom. Chair Asing: Okay. We're going to have a short recess. There being no objections, the Committee recessed at 12:54 p.m. The Council reconvened at 2:12 p.m., and proceeded as follows: Chair Asing: This Council is now called back to order, with that Mr. Clerk can we have the next item please. COUNCIL MEETING ~ - 58 - • May 26, 2010 Mr. Nakamura: Council Chair we're back on page seven (7) of the Council's agenda, I believe we're still finishing up work on Bill No. 2350, Draft 1. Chair Asing: Thank you, with that Councilmember Furfaro. Mr. Furfaro: Thank you for recognizing me again I believe we're back in session and I have concurred with Councilmember Kawakami, he is in agreement that our three (3) concerns regarding the repair maintenance upgrades as well as the interaction with the DLNR on the opening of the Waimea River mouth and the other particulars that he wants to have further discussion on in the Public Works Department would be a joint communication to the Administration from both of us. Chair Asing: Thank you. Is there any further discussion? Councilmember Bynum. Mr. Bynum: Yes regarding this bill I made my comments when it was in Committee but I dust wanted to acknowledge that there are issues related to flood zone in the Waimea and the Hanapepe area that this council will be examining and addressing in greater detail. To the best of my understanding the flood issues in this particular neighborhood are primarily related to those larger issues and moving forward with doing the amended zoning on this lot is not going to be a very significant contribution to the flood problem there. I didn't say no contribution but fairly insignificant given the larger issues and so I will be supporting this bill. Chair Asing: Any further discussion? If not, roll call. The motion for adoption of Bill No. 2350, Draft 1, on second and final reading was then put, and carried by the following vote: ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawakami, Asing TOTAL - 6, AGAINST ADOPTION: Kawahara TOTAL - 1, EXCUSED & NOT VOTING None TOTAL - 0. Chair Asing: Thank you. Next item please. Mr. Nakamura: Next matters... we're on page seven (7) of the Council's agenda. We're on... I'm sorry... oh okay... I'm sorry Mr. Chair if we could go back to page six (6) of the Council's agenda under Resolutions, we're on the Operating... on the Fiscal Year 2010-2011 budget bills. The first is the Resolution No. 2010-33, Draft 1. Resolution No. 2010-33, Draft 1, RESOLUTION ESTABLISHING THE REAL PROPERTY TAX RATES FOR THE FISCAL YEAR JULY 2, 2010 TO JUNE 30, 2011 FOR THE COUNTY OF KAUAI: Mr. Kaneshiro moved to approve Resolution No. 2010-33, Draft 1, seconded by Mr. Chang, and carried by the following vote: APPROVAL: Bynum, Chang, Furfaro, Kaneshiro, Kawahara Kawakami, Asing TOTAL - 7, AGAINST APPROVAL: None TOTAL - 0, EXCUSED & NOT VOTING None TOTAL - 0. Chair Asing: Motion carried. Next item please. COUNCIL MEETING • - 59 - • May 26, 2010 Mr. Nakamura: Next matters we're back on page seven (7) of the Council's agenda Bill for Second Reading this is Bill No. 2356, Draft 1. Bill No. 2356, Draft 1 - A BILL FOR AN ORDINANCE RELATING TO THE OPERATING BUDGET AND FINANCING THEREOF THE FISCAL YEAR JULY 1, 2010 TO JUNE 30, 2011: Mr. Chang move for adoption of Bill No. 2356, Draft 1, on second and final reading, and that it be transmitted to the Mayor for his approval, second by Mr. Kaneshiro. Mr. Chang: Move to approve. Mr. Kaneshiro: Second. Chair Asing: Any discussion? Mr. Bynum: I'm sorry. Chair Asing: Yes. Mr. Bynum: I got a little distracted, we're on? Chair Asing: 56. Mr. Bynum: So any comments about the budget (inaudible - mic ofd. Chair Asing: Go ahead Councilmember Bynum. Mr. Bynum: I want to address my concerns regarding about budget process all at once right now. I didn't discuss the tax rates but if it's okay with the Chair, I just want to make one (1) statement regarding budget issues. Mr. Kaneshiro: Sure. Mr. Bynum: First of all I would like to appreciate how hard our staff works during budget time and all Councilmembers and how intense that effort was here at the Council Services and also from the Administration who works very hard and diligently in response to questions quite well from the Council regarding all the matters related to the budget. By and large we had consensus of the long run about most of the issues with the exception for myself and I'm only speaking for myself for a couple of... and a couple of areas. And primarily having to do with the State of the Counties... the fiscal state of the county and the need or lack of need in my opinion to do furloughs. Employee furloughs are a very dramatic move in my opinion for the county to make. Furloughs are not a very efficient way for us to cut our budget because I think we've all read the studies that say for every dollar that you think you're saving in the long run you actually saved considerable less. But the county has also done very systematic and I think good work at addressing the economic situation that we're in and reducing our expenses, our workforce is down considerably, our county budget is down considerable, the expenditures we make are down and that's appropriate because our revenues are also down and that is something that's being experienced all over the country. However we came into this situation in a pretty strong place compared to say some of the other counties in Hawaii because and I have supported this since I've been on Council (inaudible) very conservative approach to the county's fiscal matters. I made a presentation during budget that was fairly lengthy and I don't intend to do that now but I do have two (2) slides that I want to show from that presentation that includes some COUNCIL MEETING • - 60 - • May 26, 2010 new data so I don't even think we need to turn the lights down because I'm going to be as quick as I can. I also have handouts that Councilmembers or anyone else would like of these two (2) slides. This first slide is the county's general fund revenue and expenditures for the last ten (10) years, the very last bar are estimates of how we will end this fiscal year and those numbers are based upon information provided by the Finance Director. But if a close examination of this chart, if you look at the blue graphs, that is the general fund revenues in any given year, the red bars are the actual expenditures with the exception of this 2010 which are estimates. And what you can see is that you know in most years with the exception of 2002 our revenues exceed our expenditures... that's also a good thing because we have to have a balanced budget. But during the years of 2005 - 2008 the revenues really far outceded the expenditures and as a result our fund balance, our un- appropriated or unreserved fund balance grew considerably during those periods of years. And now if you follow that graph down you'll' see in the blue bar that the revenues indeed are coming down and that our expenditures are coming down but even last year when we had a bare bones budget that had fifty-one (51) dollar funded positions and we cut travel budgets and we cut people's salaries... because of the diligence of the Administration and very carefully looking at expenditures, even with that bare bone budget we're estimating that will be a five million dollar surplus or more revenue than expenditures in the year. But you know our county expenditures have gone down from a hundred and twelve million and this is in the general fund to ninety-eight million and I got to credit the Administration and this Council for you know proactively addressing the fiscal issues that we have. But this has a result and what is kind of our prudent reserve, so the next slide on this has to do with that fund balance. How much unreserved funds if we can change that slide... are we dealing with because a general rule of thumb that I've been told and heard from many sources is that a conservative fund balance for a community is fifteen percent (15%) that keeping a fund balance of fifteen percent (15%) is wise and prudent and make sure that we have funds available for difficult situations. So don't know why that bar is not coming up but fifteen percent (15%) is a conservative kind of fund balance that we would want to... I think keep at any cost. It's also true that in difficult times that fund balance may go down to eight (8) or nine percent (9%) but if it goes below that, you're really... it's really scary, right? And so I've been very supportive of the county keeping a strong fund balance so if you look at this chart in 2001 the fund balance was twenty-three percent (23%) are pretty healthy and over the next few years it hovered between sixteen (16) and twenty-three percent (23%) but in those years when there was a large run up in assessed values on the and the county capped homeowners at two percent (2%) but other areas of revenue went up considerable because assessed values went up, the rates didn't change necessarily, accordingly and so by the year 2008 we had athirty-one (31) fund balance. Thirty-one percent (31%) is too high for a community to justify having in my opinion, that's when you need to say wait a minute we need to cut taxes and keep this money in our local economy and give it back to consumers or at least have a strong public purpose to expend those funds on behalf... and services on behalf of our rate payers. And so that's why I said we came into this crisis, fiscal crisis... in abetter place to weather the storm than other counties because currently Honolulu fund balance is ten percent (10%), the Big Island is around ten percent (10%), Maui is also had a healthy fund balance in the twenties (20's), high twenty percentages and this year they are doing one (1) furlough day with their employees, not two (2) and I argued during the course of the meeting that we should limit our furloughs to one (1) day because what that means is for our employees is that they are having close to ten percent (10%) take home pay cut from their... that's for some employees hundreds of dollars every paycheck less that they're taking home. It's about three point one million dollars over the course of the year directly out of our employees COUNCIL MEETING • - 61 - ~ May 26, 2010 paychecks. Now that is three point one million dollars that would be spent in the local economy because if somebody cuts your take home pay by ten percent (10%) or by three hundred or four hundred dollars a month, your rent doesn't go down, your gas bill doesn't go down and so what you don't spend is usually... you know what gives. I know in my family, my pay's going to go down twelve percent (12%) I believe we're going to have to go out eat less often, delay purchases in the local stores, and so this is going to have an impact on the larger economy and I believe unnecessarily. We already moved as a county to cut our expenditures pretty dramatically so the last bar... if you look at the next few years 2008, 2009, 2010 yes we're using that fund balance and I think it's appropriate it come down either by returning those tax revenues back to the citizens or by using them to weather the storm for instance. So by the time that we finish 2010 the estimates are and that's the fiscal year, that we'll have twenty-seven percent (27%) fund balance but what if... what if we would have eliminated one (1) furlough day and not put such a large burden on our employees and not pull that many dollars out of the local economy then our fund balance would be twenty-six percent (26%) because it cost roughly one point seven million dollars if we were to chose to put, to eliminate one (1) furlough day. I think we are making this decision about furloughs not for fiscal reasons but for political reasons and it's not necessary, it's not a choice that Maui made. We did this unlike other counties by not raising any tax rates. I am going to vote for the budget today because it's a big package and we all had our say, this is my last opportunity to address it and I did make a motion to put to use some of this fund balance to eliminate one (1) furlough day because I believe that would be the best interest of our community for the reasons why I dust stated. The other thing I want to say about the budget process is about the two percent (2%) cap, if you read our fund... if you read our budget report that our staff has put out, I agree with almost every word of it, the one area I have some problems with is the concept that the two percent (2%) cap is a, is a tax relief program okay? Because the reality is our homeowners will pay two percent (2%) increase in taxes this year under that program so just to say this real graphically if you were... if your assessed value was here and you got capped then we said okay this is your tax rate based on your assessed value and it's not going to go up more than two percent (2%) a year, even though the assessed value rose and so we can calculate that and said geeze if we left the rate the same and we had taxed you at this rate without the cap, you'd pay this much money right? But you're only going to pay two percent (2%) more because of the cap. Now when the assessed values were escalating that protected the consumers right? They knew and they could rely on no more than two percent (2%) tax increase but now the assessed values is going down but you're still going to pay two percent more unless that assessed value falls below where you started with the cap which isn't the case for very many people. So right now the two percent is protecting the county's revenues right? And that fact is that most homeowners in that category will pay a two percent (2%) increase while other tax categories their assessed value has gone down, we dust voted to keep the rates the same so they will pay less in taxes, the homeowners will pay most of them, two percent (2%) more this year. That's not a... but I dust don't think it's fair to call this gap and say oh if we would have taxed you at the rate without the cap you would pay "x" amount and then call that tax relief, I don't think that's tax relief, if we just say well we could have taxed you more but we didn't so the difference is tax relief. I don't think so. So I just wanted to make that point and you know those were my two (2) big issues with the budget this year, the rest of the issues, we discussed we came to consensus we voted, I accepted the outcome of those votes, that's why I am voting for the budget even though it has provisions that I'm not happy with. Thank you for allowing me to make that statement. Chair Asing: Thank you. Councilmember Furfaro. L COUNCIL MEETING ~ - 62 - ~ May 26, 2010 Mr. Furfaro: Yes. The presentation Mr. Bynum made I want to thank the Administration, this came out of the Administration document that went into our bond presentation and I think they did a very good job and thank you for your summary but again the financial cushion I think is what we're kind of sharing here and I want to thank the Administration and Mr. Kaneshiro for their presentation that improved, improved our bond rating and prior to Mr. Kaneshiro, I was the Finance Chair for six (6) years and yes we are somewhat conservative but you have to remember in government, you cannot change in the middle of the year... may I refer to as a hotel, your room rate and still think you can keep the occupancy. So we did reconcile some numbers. My memorandum of May 3 which was made public in the budget hearing when we reconcile this particular pieces I think it was important for me to express that... I think you need a fifteen percent (15%) reserve in addition to an additional two (2) or three percent (3%) in the year, for the year so that we have money to respond to in the event of something that we certainly have to address whether it's major capital improvement that was not on any shopping list or just a general cost over runs so we started the year with using some of the surplus, I think it was like ten point eight million dollars and still setting aside a reserve for the year in the year plus I think we ended up at two percent (2%) for emergency funds in the event if something happens. I don't think we're over the crisis in revenues and I certainly don't think we're over the crisis on incomes. We can control the cost centers which the Administration is doing with the furloughs but you know we're still not clear what's happening in Europe, Iceland has gone bankrupt pretty much, the entire European community is worried about Greece and in the last week in the half, we had the market fall substantially. We then ended up with the combined list with other members of the Council including Mr. Bynum's list, we ended up in my calculation with one million nine thousand dollars that was then available in my memorandum to the Mayor's Office for additional expenses that needed to be added to the budget, including police cell block, dispatch operators, lifeguards, support for the County Attorney's Office, the Prosecutor's Office, we and it was my resolution but the Council concurred we set a Auditor's Department of this year so we can stay closer to the numbers, that was a resolution that came from the Council to go on the voters ballot and so we have an opportunity to maybe audit four (4) or five (5) departments per year. We fully staffed the existing levels of lifeguard, ocean recreation, we established and reestablished full bus service transportation in the current schedule, and we addressed emergency responses to 24/7 coverage of wastewater. We put in and this came from Mr. Bynum twenty thousand dollars is a fair item for the purpose of doing some special project audits on the upcoming, upcoming CZO and others. We fully funded Kauai Planning and Action Alliance, the Humane Society, and other potential funding for Head Start programs so it's reconciled pretty good what I'm just saying is... I'm not convinced that we're out of the economic (inaudible) I think that's something that the State is going to have to wrestle with again next year and in implementing the furloughs I have a proviso that I put on the table that all of you agreed to and I think it covers Mr. Bynum's point, in December we want to revisit our cost centers and our revenues centers to see if we can't revisit the terms of the furlough so I just wanted to say thank you to everyone especially our staff and all the Councilmembers for participating but I think we're still in some tough financial waters as well as the global situation. On the two percent (2%) I have to defend that I think because it is my bill on the two percent (2%) cap for primary homeowners but we do have the leverage to introduce a adjustment that might be tied to the potential use of a index from the Honolulu Consumer Price index which if it's three point nine, five right now... we might be able to adjust that but we are offering some protection and I know that's a debatable item but we could revisit that eventually on the consumer price index to change the base only for primary homeowners so I don't think Mr. Bynum and I are too far off and I do want to conclude that you know in December there might be a new body here at the Council and so that's why I put it in for six (6) months, let the newly elected Council, COUNCIL MEETING • - 63 - • May 26, 2010 hopefully some of us have the history and continuity to be on the Council but there'll be another look on that issue then and I think we'll have a clearer crystal ball as to what's happening with the economy then as well. I want to thank the Mayor's staff, the Administration for getting through with the bargaining units at least this understanding with the furlough make up and more importantly for people in the county I want to reassure them by the proviso put in the budget that we will revisit it in December, thank you Mr. Chair. Chair Asing: Thank you. Any further discussion? Yes go ahead. Councilmember Kawahara. Ms. Kawahara: Thank you Council Chair. I'd like to also add that I believe that we could have alleviated some of the sacrifice that our employees will be making in this next fiscal year. I was hoping to eliminate one point seven... I mean a day of furlough of one point seven million dollars. I think we decided and I think it's well known that I was the only one who voted against the proposal to spend one million dollars on a really well known project without a blink of an eye but we couldn't afford to do that for our employees but the majority ruled on that and we will be having two (2) days of furloughs. I wanted to thank the staff for all the work that they did to get us through another budget. I'm always amazed at how the Administration and the Council worked together to try to come to decisions that are good for the whole community. I also want to thank Jay for putting in the proposal that there'd be a six (6) month relook at the furlough issue. I'm not convinced that there was an entire plan that's put into place but I'm trusting that that will occur. I also wanted to mention that there was discussion about establishing a emergency reserve in the budget, I'm not... I can't remember if we actually did that but there was discussion and I think it's a good idea. It is part of the best practices of accounting according to our Auditor report and an emergency reserve would help us deal with the unreliable source of income that we are experience whenever our tourism industry crashes. It is something that we should have that is put aside for exactly these times when we know that that our economy relies on outside sources for us to be successful so thank you again to the entire Council and to the staff for helping with the budget. I'm glad that we're through with this budget. I think we did a good fob preserving core (inaudible) services. I was especially proud to be able to have a... be a Council that was able to agree that to fully fund YWCA, KPAA and the Humane Society and Head Start, those are all projects that we... we restore to full funding and I'm proud of that. Thank you. Chair Asing: Thank you. Any further discussion? Councilmember Chang. Mr. Chang: Thank you Chair. I think I dust need to add this, when we talk about furlough unfortunately for our county workers including ourselves, nobody wants to do any furloughs, we all are aware of that. But I believe on a little bit of a brighter side as far as the county workers are concerned, many of us do have holidays off, we do continue to have our sick days, our vacation days off, we're still getting all of our benefits and I think many of us were prepared to be furlough so perhaps it gives us an extra day with the family or catch up with chores or clean your house, or maybe set aside a day to volunteer but for over a year and a half the past recent year there's been many of our friends and family in construction and hotel business that they basically just got laid off or their job description were terminated and they've been living with that for as I mentioned for about a year or a year and a half and many of them sadly are not receiving their benefits, their unemployment ran out so there's a flip side to everything I believe and it's unfortunate that we have to lay off our county people but I do believe that you know we are still getting benefits and these are things that a lot of other people are not receiving so I just felt that I needed to add that on the other side of what's going on COUNCIL MEETING ~ - 64 - • May 26, 2010 within our economy. As far as the budget and the whole process again we would like to thank everybody that prepared this together but I do want to share my agreement with Vice Chair Furfaro, I think we are preparing for perhaps hard times in the next two (2) or three (3) years so I would rather be at this point a little bit more safe than sorry. Thank you. Chair Asing: Thank you. Any further discussion? Councilmember Kawakami. Mr. Kawakami: Thank you Mr. Chair. I would like to recognize our staff and all Councilmember and the Administration and the hard work, and in making some tough, difficult and hard decisions, very unpopular decisions. And I come with my background from the private sector of business that a lot of the decisions we make to benefit the majority, the organization as a whole are often very unpopular but it's an necessity some times to make these unpopular decision because we are put in that position to provide leadership in times where we're unclear and we're... the end of the economic situation is yet to be seen and there are a lot of what ifs and some of the what ifs that we contemplated are the same what ifs that Councilmember Bynum brought up or some of the what ifs that came across our table is what if we lose TAT? What if we lose TAT for one (1) year, what if we lose TAT for five (5) years, what if we lower our surplus level to fifteen percent (15%), what if we get hit by a natural disaster is that fifteen percent (15%) enough to cover our basis and if not what programs do we cut? And if we do not make those tough decisions today, what employees are we going to cut. These are all what ifs questions and they're all based on speculation but a lot of the decisions we make, we need to take these kind of what ifs situations into account, how much more tax increases that we impose on our public to cover services that we need to provide. You know the private sector has also been hit and it's unfortunate that our government workers will now be faced with those same kind of hits that the private sector has taken but to put it into prospective what the private sector has faced, because I come from that realm, yes government medical has gone up, on the private sector medical cost has also gone up, and yes we're going to be having a ten percent (10%) pay decrease but on the private sector also some of them are completely laid off and they have no income coming in, and we're not talking private sector executive level associates, we're talking blue-collar workers, we're talking about the construction industry, we're talking about our valet drivers, we're talking about our busboys, we're talking about waiters and I live in Kapa`a and I've seen since the down turn of the economy how many restaurants have had to close their doors, mom and pop restaurants. And these are factors that we had to take in. The tough, tough decisions, they're very unpopular... of our government workers that are going to be sharing the burden, I apologize to them, it's very unpopular but at this time... in a time of uncertainty we need to provide the leadership and we need to be willing to make tough decisions and to also take the hits. At our last HSAC executive Committee meeting where I serve as President, our Vice President Nestor Garcia who had watched our budget deliberations identified proposal from Vice Chair Furfaro to do the six (6) month evaluation and based on that, what HSAC is going to be doing as an Executive Committee is will be approaching the Executive Branches and Administration to come up with a task force. And I'll just read a little excerpt from the letter that's going to be going out and this is just a draft... the Committee recognizes furloughs as a painful yet necessary step as counties seek to address serious budget short falls. However, there's an equally compelling need to fully measure the impact of furloughs, for instance, how will agencies cover the loss of services or will services simply be denied to the public, how will that impact establish deadlines such as building permits, vehicle registrations and driver licenses. Do the furloughs achieve COUNCIL MEETING ~ - 65 - • May 26, 2010 financial objectives or are those savings offset by paying more over time or other increased cost. Is it truly necessary to continue furloughs beyond one (1) fiscal year? These and other critical questions demand a comprehensive analysis of furloughs that encompasses all perspective. Therefore the HSAC Executive Committee requests that a task force be assembled to perform that evaluation and report back to each county. We strongly recommend that the taskforce membership include a membership each from the Executive and Legislative Branches of each county and representatives from any organized labor union that represents county employees and whose members are furloughing. We hope that you'll agree that this a task that must be performed, and we look forward to receiving your appointee to serve on the task force. Please feel free to contact me if you have any questions, and this is signed by myself. And this is based off of Vice Chair Furfaro's and this is being driven by Vice President Nestor Garcia from the City and County of Honolulu. So the message is clear that there are a lot of uncertainties, that there are a lot of questions that remain to be answered and one of them is the efficiencies of furloughs. But we need to make tough decisions and we've made these tough decisions in light of what could have been the easy way out, not necessarily the right way out. So with that being said, thank you for offering me the floor to read my statement. Chair Asing: Thank you. I'd like to just make a few comments... I think everyone has covered all of the areas very well. You know Councilmember Furfaro made reference to you know the world economy, what's happening in the world. I did mention as an example California; California forty-two billion dollars in the hole, that's what California looks like today. The State, one point two billion, what did we end up doing? The Legislature tapped the hurricane fund and that was our relief to tap that fund, otherwise we would have been entire (inaudible) again. So we need to keep that extra money in there just in case something should happen, we have something to fall back on. And I think we need to be cautious about that. Uncer-tainties, tough decisions, you know Councilmember Bynum mentioned the two percent (2%), you know the two percent cap is a long-range savings, it's not just one (1) year, you know it was a long range item. So you get a two percent (2%) increase on a thousand dollars, that's twenty dollars. What's twenty dollars, I mean we intentionally set it that way so that you don't get hurt and yes you'll pay but if you pay twenty dollars more, it's the same sacrifice we all make. Here on the Council, we also made sacrifices yeah? We took a nine point three percent cut. That equates to as far as I'm concerned for me and my salary, nearly eight thousand dollars in loss, that's what I take. Councilmembers take the same hit, I make a little more, but the sacrifices are all over the place and we are, we also make sacrifices and you know like Councilmember Kawakami said... you know I also apologize you know to all the hard workers out there that we need to have to do this. It's one of the hard choices but we need to do what we need to do. So with that I will end my comments, thank you very much and before I close I would like to recognize the Chair, Councilmember Kaneshiro for guiding us through this process, for the staff for the large amount of work that they did, to the Administration for their assistance for... to all concerned, thank you very much for everything that you put into it. Councilmember Kaneshiro. Mr. Kaneshiro: Thank you Chair for giving me the opportunity to speak a little bit about the budget and I'll be really short. We've had many, many hours of discussions and deliberations and we did put out a six (6) page budget message from the County Council but I know many of you won't have the opportunity to be able to read all six (6) pages but my Committee members over most of the issues that were deliberated on and brought to light a good balanced budget. But there is one part of the Budget message that I wanted to read, as I said many of you won't have the opportunity to read all six (6) pages but the conclusion of the budget message I think is important for all of us to at least hear and listen COUNCIL MEETING • - 66 - ~ May 26, 2010 about and I wanted to read that section at this time. From the onset of the fiscal year 10-11 deliberations, the Council sought to be prudent and fiscally responsible in its review of budgetary request. The County has entered into an especially challenging economic period and the utilization of employee furlough days was a difficult but necessary measure to protect the county from future revenue loss and financial hardship in light of economic uncertainty. This year's budget session was different from those of years past because of the Council's focus of maintaining services while facing loss of potential revenue, higher fixed cost and a slow recovery from the current economic recession. In and closing the Council extends its appreciation to the Administration, Department Heads and County employees for their participations and assistance in this budget session and for the continued commitment to provide the highest level of public service. In addition, the Council would like to thank Hawai`i's congressional delegation and especially Kauai State Legislatures for their continued support and assistance. Thank you. Chair Asing: Thank you. Any further discussion? If not, roll call please. The motion for adoption of Bill No. 2356, Draft 1, on second and final reading was then put, and carried by the following vote: APPROVAL: Bynum, Chang, Furfaro, Kaneshiro, Kawahara Kawakami, Asing TOTAL - 7, AGAINST APPROVAL: None TOTAL - 0, EXCUSED & NOT VOTING None TOTAL - 0. Chair Asing: Next item please. Mr. Nakamura: Next bill for Second Reading is Bill No. 2357, Draft 1. Bill No. 2357, Draft 1 - A BILL FOR AN ORDINANCE FOR AN ORDINANCE RELATING TO CAPITAL IMPROVEMENTS AND FINANCING THEREOF FOR THE FISCAL YEAR JULY 1, 2010 TO JUNE 30, 2011: Mr. Bynum moved for adoption of Bill No. 2357, Draft 1, on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Chang, and carried by the following vote: APPROVAL: Bynum, Chang, Furfaro, Kaneshiro, Kawahara Kawakami, Asing TOTAL - 7, AGAINST APPROVAL: None TOTAL - 0, EXCUSED & NOT VOTING None TOTAL - 0. Chair Asing: Next item please. Mr. Nakamura: Next bill for Second Reading is Bill No. 2358. Bill No. 2358 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 23, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO CONCESSIONS AT SPOUTING HORN: Mr. Chang moved for adoption of Bill No. 2358, on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Bynum. Chair Asing: Any discussion? Mr. Nakamura: We have one (1) registered speaker. COUNCIL MEETING ~ - 67 - • May 26, 2010 Chair Asing: Pardon me? Mr. Nakamura: We have one (1) registered speaker. Chair Asing: Oh I'm sorry. Rules are suspended. There being no objections, the rules were suspended. Ms. Robeson: Thank you Mr. Chair, Councilmembers. You have a copy of my resurrected 1999 testimony, most parts are not relevant to the bill that's before us today, 2358; however, in the larger context of park usage I think there are some components of the testimony that I'd like to share with you again. To date I don't think there's been a public policy discussion on whether or not the public wants to commercialize... I'm sorry... oh Barbara Robeson for the record. So I don't think there's been a discussion, a public policy discussion about whether or not the public does want to commercialize our county resources. And I believe it should happen, this discussion because the public should be having input onto whether or not we want to commercialize our county parks. A hierarchy of uses should or could be established for our parks similar to what DLNR has for their public lands and the hierarchy of uses would take into account that the primary purpose of a county park is to serve the public interest above all others. I did attach with that testimony kind of a draft of some of my ideas about the hierarchy and what it could look like and first... the first categories of course would be for public uses, second category would be for non-profit and the third would be for profit and you'll notice that on five (a) I mentioned Spouting Horn in there so it's relevant to this bill. And that's... and you might want to look at the questions and the comments down below that number three (3) do we need a Parks Department? That was a 1999 question so obviously that's been taken care o£ Thank you very much. Chair Asing: Thank you. Councilmember Furfaro... hang on Barbara. Mr. Furfaro: Barbara thank you very much. With the exception with the moving parts of Spouting Horn, I do want to let you know that I have been in discussion with the members of the Legal Department about the possibility of reconciling some park rules for use, especially as it leads to our potential acquisition of the (inaudible) in Hanalei. So your point was very well taken but I did want to let you know we are in consultation with the County Attorneys about a (inaudible). Ms. Robeson: I'm just trying to keep it on the radar screen. Mr. Furfaro: It's on the radar screen. Ms. Robeson: Thank you. Chair Asing: Thank you. Is there anyone else? If not, I'd like to call the meeting back to order. There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows: Chair Asing: Did we... Mr. Nakamura: We have a motion and a second. Chair Asing: Motion and a second. COUNCIL MEETING ~ - 68 - ~ May 26, 2010 Mr. Nakamura: Yes. Chair Asing: Is there further discussion? Yes go ahead. Mr. Furfaro: Mr. Chair I just want to clarify with the exception of what looks like the addressing the concessionaires that exists, these park rules that I've been having as Chair of Planning deal with all of our other parks. Chair Asing: Thank you. With that... Councilmember Bynum. Mr. Bynum: During Committee meetings the Council Chair made a presentation about being very cautious when we look at commercial, any kind of commercial use in the parks and I think his cautions were very well taken and I said at the time that I couldn't imagine that I would be voting to approve any kind of new operation like Spouting Horn because of those kinds of cautions that I share, but this is about Spouting Horn that has been there for a long time and is really part of the cultural fabric of the Po`ipu's visitor experience, so I am supporting this bill. Chair Asing: Any... Mr. Furfaro: Perhaps I stepped out of bounds. I know we glue our speakers a little bit more lineage but or leverage I'm sorry but I wanted to share with you that I just wanted to concur that it is our... as Barbara put it... radar screen. Chair Asing: Thank you. Yes, any further discussion? If not, I just wanted to echo I guess that same concerns that I had expressed in the... during the Committee meetings. You know I just have difficulty because I guess I go back with long, long history and you know history has taught me so, so much. And I can recall the days of the puka shell you know... (inaudible) at Ha`ena Beach Park and the businesses that were there, the different businesses in different areas and taking away facilities for recreation and then have the businesses take advantage of that so I really have some great, great difficulty. I will be supporting this with grave reservations and Barbara thank you for your testimony I think it's great and thank you Mr. Chair for the Planning to be looking at these issues because I think you know recreation purpose, parks that's what they're for not to be used for commercialization and take away from our recreational facilities so I will be voting for it but with great reservations. With that, roll call please. The motion for adoption of Bill No. 2358 on second and final reading was then put, and carried by the following vote: APPROVAL: Bynum, Chang, Furfaro, Kaneshiro, Kawahara Kawakami, Asing TOTAL - 7, AGAINST APPROVAL: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please. Mr. Nakamura: Next bill for Second Reading is Bill No. 2359. Bill No. 2359 - A BILL FOR AN ORDINANCE AMENDING SECTION 17- 1.1 OF THE KAUAI COUNTY CODE 1987, RELATING TO RENEWAL FEE FOR MOTOR VEHICLE OPERATOR'S LICENSE: Mr. Chang moved for adoption of Bill COUNCIL MEETING ~ - 69 - ~ May 26, 2010 No. 2359, on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Bynum, and carried and following vote: APPROVAL: Bynum, Chang, Furfaro, Kaneshiro, Kawahara Kawakami, Asing TOTAL - 7, AGAINST APPROVAL: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please. Mr. Nakamura: Next bill for Second Reading is Bill No. 2360. Bill No. 2360 - A BILL FOR AN ORDINANCE AMENDING SECTION 5-2.4 OF THE KAUAI COUNTY CODE 1987, RELATING TO MOTOR VEHICLE CERTIFICATION OF OWNERSHIP AND REGISTRATION FEES: Mr. Bynum moved for adoption of Bill No. 2360, on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Chang, and carried and following vote: APPROVAL: Bynum, Chang, Furfaro, Kaneshiro, Kawahara Kawakami, Asing TOTAL - 7, AGAINST APPROVAL: None TOTAL - 0, EXCUSED & NOT VOTING None TOTAL - 0. Chair Asing: Next item please. Mr. Nakamura: Next bill for Second Reading is Bill No. 2362. Bill No. 2362 - AN ORDINANCE AMENDING ORDINANCE NO. B-2009- 691, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2009 TO JUNE 30, 2010, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE BOND FUND: Mr. Kaneshiro moved for adoption of Bill No. 2362, on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Furfaro, and carried and following vote: APPROVAL: Bynum, Chang, Furfaro, Kaneshiro, Kawahara Kawakami, Asing TOTAL - 7, AGAINST APPROVAL: None TOTAL - 0, EXCUSED & NOT VOTING None TOTAL - 0. Chair Asing: Next item please. Mr. Nakamura: At this time Mr. Chair, we're back on page six (6) of the Council's agenda bill for Second Reading, this would be Bill No. 2318, Draft 3. Bill No. 2318, Draft 3 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Farm Worker Housing) Mr. Kaneshiro: May I recuse myself from this item? Chair Asing: Yes. Mr. Kaneshiro: Thank you. COUNCIL MEETING ~ - 70 - ~ May 26, 2010 Mr. Kaneshiro was noted as recused from Bill No. 2318, Draft 3. Chair Asing: Councilmembers? Mr. Furfaro: Mr. Chair, may I make note that the Land Use Research Foundation has resubmitted a clarification of LURF'S support which is dust being distributed right now. Chair Asing: Okay. What is the pleasure of the group? Mr. Furfaro: I'd be glad to start off and give a quick recap of where we're at, if you want to suspend the rules after that... Chair Asing: Okay why don't... you want me to suspend the rules and have people come up? Mr. Furfaro: Take testimony first. Mr. Nakamura: We have two (2) registered speakers Mr. Chair. Chair Asing: Pardon me? Mr. Nakamura: We have two (2) registered speakers. Chair Asing: Okay why don't we have the registered speakers then. Mr. Nakamura: The first registered... Chair Asing: The rules are suspended. There being no objections, the rules were suspended. Mr. Nakamura: The first registered speaker is JoAnn Yukimura followed by Patty Valentine. There being no objections, the rules were suspended. JOANN YUKIMURA: Council Chair, members of the Council, JoAnn Yukimura for the record. I've testified on this bill many times and I'm basically in support of it. I want to start off today with a little history. The farm worker ~ housing... farm worker housing was anticipated and planning for in the original CZO and Ag subdivision ordinance that was adopted back in 1972. The Ag subdivision ordinance allows for multiunit lots, for example, a five acre lot is allowed two houses, a ten acre lot is allowed four houses, and large lots are allowed five houses. Five houses are the limit and there's a minimum lot size of five acres, what happened is that condominiumization came in as an unwelcomed overlay that allowed further subdivision of five acres and ten acres and .they were condominiumized around these units so that a ten acre lot was divided into four lots by condo, by the condo process. And it made the per acre cost go up and it took... it made the minimum size go down and took away the opportunity for farm worker housing. Farm worker... farms have been enduring this situation for many years and so we're back here trying to find or restore the opportunity for farm worker housing and Mayor Baptiste's Ag advisory Group of which Roy Oyama and Bob (inaudible) were members identified farm worker housing as a top priority for promoting farming. So the bill before you is not perfect but it does attempt to provide for farm worker housing in a rational way with many restrictions to protect COUNCIL MEETING • - 71 - • May 26, 2010 against abuse and it would really be an important pilot effort in preparation for the important Ag lands issues that will be coming up. I want to end here dust by acknowledging the farmers, the Farm Bureau, Councilmember Furfaro and Council staff, Kaaina Hull, Planning Department and all the others who worked on this bill for now... I think over two (2) years and ask for your support in passage. Thank you. Chair Asing: Is there anyone else? Can we have the next speaker up please. AIDA OKASAKI: Next registered speaker is Patty Valentine. PATTY VALENTINE: Honorable Chair and Councilmembers, my name is Patty Valentine and I'm a former farm worker and currently served as the Kauai Chapter Director of the Hawaii Farms Union for our State. I have two (2) points to share, while many people have worked on fashioning a farm worker housing bill, at least over the last twenty (20) years that I've been aware of... I would like to acknowledge the community group who spent over the past two (2) years designing their amendment to Bill No. 2318. Thanks to Malama Kauai for creating the space and invitation for discussion. Thanks for JoAnn Yukimura for her diligence and ability to look at the issues from angles we could not even imagine. Thanks to the Councilmembers, legal advisors and Farm Bureau members who shared hours of information with all of us. Thanks to the Planning, Water and Real Property Tax Departments, your expertise and opinions were valuable. And finally thanks to the farmers who left their fields to attend meetings that would have meant nothing without them. Everyone involved was interested in fashioning a well researched bill that would work for the good of the County and the farmers and all other parties mentioned above. This amendment is a hying testimony to the democratic process. My second item... while I and many others support Bill No. 2318 draft 3, I must share some information from the farmers I spoken with in the past two (2) weeks. This current draft includes many of the provisions our group had worked on so diligently, yet in section 3B 1 it states that a farmer must show gross receipts of at least thirty-five thousand dollars for two (2) consecutive years before they can file for the use permit. And this figure was adopted based on the figures used in Maui County. Most of the farmers I spoke with thought that thirty-five thousand dollars for the first year was too high. In our community group the suggested amount was gross sales of twenty thousand dollars for the first year and thirty-five thousand for the second. I'm asking Council to consider this lower amount for the first year of farming in light of the following statistics... according to USDA figures of Hawai`i's seven thousand five hundred farmers, sixty-five point seven percent earn under ten thousand dollars, twenty-two point six percent earn under fifty thousand dollars, four point seven percent earn under hundred thousand dollars, five point one percent earn under five hundred thousand dollars, and only two percent earn over five hundred thousand dollars. To create a viable and sustainable Kauai we need to support the small farm now, thank you very much. Chair Asing: Thank you. Is there anyone else who would like to speak? NED WHITLOCK: Honorable Chair and Councilmembers. I'm Ned Whitlock farm from Moloa`a. I would say this bill is about growing more food. It takes people on the land out there doing it and this is the first step and repopulating some empty tracts I see that could be productive and full of diverse economic activity. For farmers who would qualify for this bill as it is... it's an added incentive to produce more, to keep up that production, to keep your income coming in. And it's to... it's a great advantage to trying to attract skilled, agriculturist to help expand the business or have something to offer these people COUNCIL MEETING • - 72 - • May 26, 2010 that you can jump ahead being a better farmer. For farmers who are almost qualifying, the bill as it is now... it's an added incentive to produce more, to plant that extra row, to get those trees going, to expand our agriculture base on this island. And then personally on our farm it gives, for me it's a way where I can keep my family together, I can offer my son as an employee eventually, a place to stay. And... farm life is hard work but it's a lifestyle that I wouldn't trade for anything, I have fun every day and anything that supports more farming, more families on the land... I think it deserves your support. Chair Asing: Thank you. Please.... ANDREA LECOCQ: Councilman and Councilmembers, my name is Andrea Lecocq. I have a farm in Kapa`a. I don't earn as much money as thirty-five thousand dollars a year, I've had it for nine years and I'm up to eighteen thousand dollars but I'm not here today to ask for myself, I here today to ask for all the farmers who work so hard, like Lousia- Wooten who I've known for twenty-eight (28) years, who's a dedicated farmer. If you... if Lousia should you the farmers who were up to thirty-five thousand dollars a year working and how hard they work, the Councilmembers who are against this bill right now, might change their minds if they went and saw those farmers. They deserve this bill, they deserve it to be passed because they're really hard workers and they worked for many years, Ned and Martha... all the people if you went to their farmers, they deserve this housing and you may think that they're going to take advantage of it but if the Councilmembers who are undecided or who are against this bill would actually go to some of these farms who are claiming with their taxes have earn thirty-five thousand a year, you would see that these people are deserving of farm housing units and even though I'm not there yet, I'm here today to show my support because they're all are really hard workers and I don't think any of them plan on taking advantage of the housing. Thank you. (mic) Chair Asing: My apologies BC. (inaudible) Whitlock: County Council, Chairman... (inaudible) Whitlock for the record... Chair Asing: You can pull the mic closer to you. Mr. Whitlock: For me personally the bill would enable me to be able to stay on my farm, on my family's, and work and be an employee and eventually maybe (inaudible) the farm after I inherit it... but and for those concerned with developers coming in... and trying to take advantage of the bill... I would personally think it would be a nightmare for anybody trying to frame farm once a year for yearly inspections as the bill states and if the goal is to promote farming I think it's best to have full time farmers on the farm who can produce from sun up to sun down, all the jobs that needs to be done. It seems logical to have the house on the farm. Thank you. Chair Asing: Thank you. Is there anyone else? LOUISA WOOTEN: I have something that I would like to pass around that came to email last week and I got excited about it, prematurely I suppose. It has to do with Federal funding for building farm worker housing in the United States of America and it came from our USDA office in Hilo, specifically regarding funding available for farm worker housing. So it's not a unique subject we're talking about here today. I'm sure over the coming weeks we're going to hear many COUNCIL MEETING • - 73 - ~ May 26, 2010 of you give us your political platforms and (inaudible) I'm sure as I've heard in many years past, you'll be talking about how you support diversify agriculture, food security, sustainability, affordable housing, preservation of Open space and job creation. I think it would be profoundly amazingly, wonderful, unheard of for all of you to be able to say we supported all of these things by passing this bill, I'll vote for you. How many times in the past few years have you had this chance to actually profoundly support our community? The need has already been established as we've already heard, Mayor Baptiste has an Ag Advisory Committee, it was made up of so many of our farm community leaders, we had our most respected organizations support his bill, the Farm Bureau, the Hawaii Organic Association, the Farmers union, these are the voices for agriculture, they come together, they work together, we've made a bill that can benefit us in such a profound way. Excuse me if I get emotional but I am... It's a dire critical need and this island community for housing is so expensive, you know I cannot afford to pay a living wage to my farm workers and have them go out (inaudible) even where rent has dropped right now, and have them be able to afford that. I can provide them affordable, comfortable housing that I just want it to be legal and I do need to have workers on the farm for so many reasons which already been outlined. We've discussed the abuses and I just applaud Councilmember Furfaro's efforts to address all the concerns about abuse. He sought the legal advice, he sought the Planning Department's advice, this bill has been amended to rule out the loopholes, all due respect Councilmember Kawakami who's worried about enforcement, this bill has come to the point where the enforcement will begin the minute I walk up to the Planning Department with an application. They're going to say let's see thirty-five thousand dollars for two (2) years, let's see your income tax filings, let's see your property Ag tax dedication, which by the way I've learned through this process that if I went today to dedicate my three acres to agriculture, I could not do so, I could not get the tax dedication because now the limit is now set at five acres in the County of Kauai. It ruled me out. Our family could not get the Ag tax dedication, so it's just been such a learning process. The one thing that's really, really important about this bill and the (hope) passage of it is that if we do go to the Planning Department, there will be some guidelines so that once this goes to the Planning Commission that they have something to go by... (3 minutes) Ms. Wooten: Right now I've heard all of you say oh you have a way that you can do this... there are no guideline, none, zero... we have the Important Ag lands that are coming out, Maui has already proven that this sort of a bill will work so I don't get it... I really don't know why the hesitation, why if you say you support agriculture, we're here, we're telling you. Many of us have left today, some of our most profound voices have already left... (3 minutes) Ms. Wooten: Many of the people that met with us for so many months can't make all these meetings, I can barely make them and I guess this is the last shot but I'm giving it my best shot, hope you folks can support it, it's really important. If we want to have food security, if we want to grow our own food, if we want to do all the things that this bill is really, really about, your support on this bill is just so, so important. And please, please consider it because so much work has gone into it. Thank you. Chair Asing: Thank you. Is there anyone else? Okay let's take a break? (change tape) COUNCIL MEETING • - 74 - • May 26, 2010 Chair Asing: Yeah okay, we're going to take a break because we have to change the tape. There being no objections, the Council recessed at 3:20 p.m. The Council reconvened at 5:01 p.m., and proceeded as follows: Chair Asing: Council meeting is now called back to order. With that why don't we finish up with the public testimony so I believe that there were other speakers who wanted to speak, if I'm wrong then I'll call the meeting back to order but I will open it up to anyone in the public who wants to speak on this item. JERRY ORNELLAS: Good afternoon Chairman Asing and members of the Council. My name is Jerry Ornellas, I'm with the Kauai County Farm Bureau and I'm a farmer from... I farm fifteen (15) acres from Kapa`a Homesteads. You know it's too bad that we refer to this bill as the farm worker bill... early on I started to realize what this bill actually is, is... or should be called... temporary agricultural housing for farm workers and farmers because what we're looking at is a special use permit that is temporary in nature, what the farm operations stop... the structure goes away. Now I know the objection to that is well the county has never torn down any structure or has rarely done so but looking at the bill, it would behoove the person building the structure to build an inexpensive structure. Now these structures will meet all county codes, they will have septic systems so that it's acceptable to all the Departments. You know we have a long history of agricultural worker housing in Hawaii. My first childhood home was in Kealia Camp, a town that no longer exists when agriculture went away, all that's left now is the post office and I'm going to keep my remarks short because it's been a very long day for everyone. But Act 205-4.5 (a) 16 makes provisions for agricultural worker housing on agricultural lands, unlike a certain topic that was talked about earlier today where 205 makes no provision for that. So we have precedent on the island of Maui. They have a program that's been in place for over ten (10) years that's working successfully. I know the big concern is abuse but you know we cannot operate on the premise that everyone is a crook, we have honest farmers out there, we have people that are going to follow the law. I mean you know we have banks that are robbed every day but we don't close all the banks because we have some people that are crooks... you know the irony of this whole thing is not going to be loss for the people of Kauai if vacation rentals are allowed on agricultural land and houses for farmers and farm workers are denied, so I'd like to open up for questions if you had any questions... or even if you can give me an instance of where you think this bill will be abused, I'll be more than happy to try to answer it. Chair Asing: Councilmembers? Councilmember Bynum? Mr. Bynum: Mr. Ornellas thank you for being here today and I know you've been involved in dialog about this bill and have concerns as do I and... but I feel... I felt like a few months ago we really got focused and we make sure that the thirty-five thousand dollar provision, we made sure that there was you now the CPR issue got successful amendment after the Committee Chair worked with the County Attorney and for myself I came around to supporting the bill because believe that those provisions would go a long way to eliminate you know the potential for abuse. The...you know I'm getting a lot of calls from very... I believe very important and sincere farmers who are saying hey this provision is not going to make it work for me and we've heard testimony today saying I can't meet this criteria but I know farmers who can and they need that. And so you know trying to find that balance is really difficult particularly the provision we put in that you have to have Ag dedication prior. I have some problems with that and I would be COUNCIL MEETING • - 75 - • May 26, 2010 supporting this bill without that provision but I'm going to be supporting with it because of the abundance of caution that I think we're trying to have about any potential abuse. So I know I'm saying things and this will turn into a question right now, are we come to a similar conclusion because I know at one point you said... we just can't do this, right and so we tried to put this provision in to address that concern and so you're here supporting the bill today? Mr. Ornellas: That's correct. You now we've worked on this thing for almost two (2) years now, a lot of meetings and I've became known as the naysayer .because I kept telling people that you know we can't do this, we have to tighten this bill up to prevent abuse because you know we've seen what happens on agricultural lands. So the Farm Bureau, I mean more than anybody... is dedicated to preserving our agricultural lands and I know you received communication from LURF, the large property owners and raising questions about how this relates to important agricultural lands. Well the fact is there's no (inaudible) yeah, agricultural lands are a special program that has special privileges. We cannot accord those privileges to lands that are not in important agricultural lands programs yeah, they have to be offered special incentives. Once those lands are placed in that program, it takes an act of the legislature to remove it or to bring it out of IAL so our standards are going to be tighter than what's allowed in important agricultural land. Mr. Bynum: So I know how strongly you feel about those issues and so it's very significant to me that the provisions that we've... are rallying around at this point have made a difference to you so thank you for your testimony. Chair Asing: Thank you. Councilmember Furfaro. Mr. Furfaro: Yes... Mr. Ornellas thank you for being here. I'm going to make comment of what you said here that these provisions are more stringent than what will actually come out of the Important Ag lands, and if you really read the Important Ag piece I mean, they're talking about clustering almost hke plantation camps again... five percent of lands, more than nine hundred acres you can have a fifteen piece acre for workers housing, but at the end of the day the real need to have this tighter than that is the fact that they're going to end up allocating to us the water, the roads, the building regulations... I don't see State Land Use coming up with all of those parameters and controls so hopefully what we get out of this bill is kind of the parameters of what we're looking for at the county level. And remember in this bill I think you pointed out, this is a special use permit... and it... it will probably be temporary until IAL is overlaid or a template is overlaid by the State and we're dust trying to make... we're really trying to make provisions for what we need to make sure we have control on so that there is a clear understanding of no abuse going forward. There are eleven (11) points in the bill that puts controls on starting with... I forget who testified but came up and said you start with your farm plan, you start with your receipts, you start with really making sure that the Commission when they review your application, it's a bonafide farming activity... it's producing revenue, it's producing food goods, and it's a doing the kinds of things that we have heard from over and over that you know farm labor is important to farm success. Without the labor you can't produce the kind of farming with crops and so forth that go back to expanding this alternative economy, so your comments today for me is very much appreciated. Mr. Ornellas: Thank you and you know getting back to that first requirement of thirty thousand... Mr. Furfaro: Thirty-five thousand... COUNCIL MEETING • - 76 - • May 26, 2010 Mr.Ornellas: Thirty-five thousand dollars of income of over multiple years, you know we've seen abuse with our Ag dedication program because that requires a schedule (f) but in this case it's much tighter because you're going to be going to Planning Commission and they're going to scrutinize this. So what gentleman farmer in their mind is going to forge a schedule (f) or falsify a schedule (f)? Any attorney will tell you, you got to be crazy to falsify a Federal... Mr. Furfaro: Tax form. Mr. Ornellas: Return... Mr. Bynum: Yeah. Mr. Ornellas: In excess of a hundred thousand dollars because we're talking three (3) years so I mean... that would be a huge deterrent to any gentleman farmer to even think about it... his consultant would tell him, no never ever do that. Mr. Furfaro: Thank you again for your testimony. Chair Asing: Thank you. Is there anyone else? Cynthia Chiang: Good evening Chairman Asing and Councilmembers. I've been here since about nine this morning on my day off working for Lousia Wooten at Kauai Kunana Diary. And I didn't come prepared to speak but I dust wanted to come. Mr. Chang: State your name for the record. Ms. Chiang: Cynthia Chiang, with an "I" no relation to you. Since I started working in the sustainable agricultural field almost twenty (20) years ago, I supported myself and worked in... lived in a apartment working on a farm in Berkley. I lived in a year (inaudible) of New York. I lived in a cabin in Pennsylvania, lived in my own tent in Waimanalo, and shared farm worker housing with a farmer in Makawao as well as with a farmer that I started farm in Maine. And in each of these farms, I pour all of my energy into not only sustaining my own livelihood but working towards a larger goal of the farmer's goals of sustaining themselves with their work and the fruits of their labor. For me personally it's, there's nothing more basic than clean water, healthy food, safe housing and nurturing strong communities and this bill to me is common sense and I come here dust to provide another face on the farm worker issue and I was just (inaudible) a book that Ned Whitlock brought about farming and there was a quote that really spoke to me which was that farmers are the great backbone of this whole wide world, but it seems that farmers along with Social Workers and Teachers and Nurses are granted the least respect and I've never understood that. So I just urge you wholeheartedly to support this bill and to help strengthen this island's steps that they're taking towards sustainability and food sovereignty. Thank you. Chair Asing: Thank you. Hang on. Councilmember Chang. Mr. Chang: Thank you Cynthia Chiang. How many o£ how many individuals would you say have the passion such as yourself to experience what you have as far as farming? Ms. Chiang: Personally speaking I think a lot of people are detracted from going into this profession because they cannot make a living off of it. Who wants to toil sunrise to sunset, most days of the week when you're barely able COUNCIL MEETING • - 77 - • May 26, 2010 to sustain yourself let alone sustain a family if you have one. So this culture, this Country is not giving allowances for people, my generation or younger especially who wants to go into this field and remain viable in this field when there aren't laws being passed that encourage them to go into this field. You know I've read reports in Japan where it's a whole generation of older farmers and all the young people, all their children are going into the cities. There's no incentives for children or the next generation to go into one of the most noblest professions in the world and to continue the tradition of organic practices and to feed their communities when they don't have the support of their government you know behind them to do so. Mr. Chang: Thank you. Ms. Chafing: Thank you. Chair Asing: Thank you. Is there anyone else? JoAnn, I think you ve... Ms. Yukimura: (inaudible). Chair Asing: Yeah. MELISSA MCFEREN: I keep my comment very brief. My name is Melissa McFeren and I'm the Executive Administrator for the Farm Bureau and Jerry pretty much captured what happened in our discussions so I won't touch on that again but I just wanted to touch on one (1) point is that a lot of us have been working together to look at how do we encourage agriculture on Kauai and how do we improve the economic conditions of the farmers and you know there's a lot, there's a great deal of interest in the marketing side, in promoting Kauai grown and we're so thankful for that and we're very thankful to the County and to the Council for supporting that too. So this is really about the other side which is the farm production and how we are supporting the farm production? I realize that this is dust one (1) of the series of tools and also that as you talk to farmers you will meet farmers who can benefit from this bill, you will also meet farmers that have a lower income or is starting out and can't benefit from it yet. Also for the larger farmers, they have other needs as well so we understand that this you know, the whole group has worked very hard on this bill but that it is only one (1) tool in the tool box. It's really about providing more tools for our farm workers and for our farmers, some will choose it, some will not. But just to make it tight enough so that we can prevent against abuse and I think that has been our consistent testimony all along that we support housing for farm workers, for qualified farmers as long as it prevents against abuse. So that was just a comment that I want to make and I understand that that whole preventing against abuse side is very difficult and as Jerry said, we've had a lot of meetings and meetings with different staff from the County. Certainly I've learned a lot about the process so I'm not coming to you as an expert by any means and so now it's in your hands. Thank you. Chair Asing: Thank you. Is there anyone else? Go ahead, yeah go ahead. Ms. Yukimura: Thank you Chair Asing, members of the Council, JoAnn Yukimura. I just want to follow up on Cynthia's testimony, there's an article from this magazine Pacific Edge about a five acre farm in Kohala and it mentions because there were questions about interns. It mentions this world wide opportunities in organic farms WOFF program and I just wanted to give this to you if the staff could take these articles and then also I opened today's Garden Island and to and behold there's a story about WOFF as well and about how there's twelve COUNCIL MEETING • - 78 - • May 26, 2010 hundred farms across the country, farmers and ranchers, where they are benefiting from this program in using help and also in educating young people like Cynthia in terms of farming... there's a new mode of farming education and farm development that's happening which the bill would accommodate, thank you very much. Chair Asing: Thank you. Is there anyone else? ROY OYAMA: I got to relax first, it took how many hours to get to this point so... well Council Chair and members of the County Council. I'm very glad to be here in front of you hoping it's the final moment and I'm Roy Oyama from the Farm Bureau and also farmed over sixty plus years on the island. I just want to make sure that everyone has come before you has testified good information, I am very proud of the Whitlocks, the son and he's the future for us also. I mean... he's young and he's very strong to farm, I can see that so we need help for him, as well as Louiia and we have many more outside of the room... you got to understand now we took up many hours, we expected to be here before you by ten (10), and this is past five (5) so excuse me. So anyway I want to continue that they have brought to you very good points that you need to think about and as Chiang has stated and I'm glad she came from the National level, has a lot of good experience and it's... I'm very proud to see a person on a National level coming to settle down in Hawaii and so Lousia needs a housing structure. Also the testimony from Jerry, he had said it right, he hit it on the nail and I want to add to it that this bill is tighter than Maui, you have to understand now, we took the Maui's version and we started on it from the Planning. And it has helped us to get to this level, it was very hard to convince everybody in the early beginning but I'm glad today that today we are settled on to this area, so in all in good faith agriculture as you know also in the Nation is only two percent of the population so guess how much support they have? That's how low it is. Now that's the reason we're before you, we need to help, if we don't have the help, you may not have one percent and you got to look at that very clearly because when anything happens on the island, after two (2) weeks what are you going to do? I'm retired, I still farm but I tell you if we have another disaster and there's no food, I'm keeping the food for myself and my family first, I have to tell you the truth, I'm an honest farmer, I have always done that. You know as retired I produce you know a retired person, pretty good amount of vegetables, I deliver it around the stores in the island and some restaurants and as you know too the demand is there. I try to train other people but the stores after awhile turned them down now it's in the area of as my concern and interest is, we have started some structures of... structures to bring farmers on and (inaudible) and I think some of you know so I just wanted to... before I close I dust want to thank you all, thank Ned, his family, Louisa, the farmers, you know Melissa needs a big thank you because she really worked hard on this issues. Every week we were going to Kapa`a in the beginning and I couldn't keep up because I come from Kalaheo and you know the gas price went up, I had to farm more to pay my gas bill so I hope you understand, I don't get paid, I'm a volunteer as well as Jerry, Melissa is with us but we farmers are not paying her enough, dust to be honest too. I hope we can do better, and she's hanging on because she's doing a very good job communicating to all of you as well as communicating to the farmers. We depend on her to get all this information out, okay? So in the last try, the word sustainable... think about it. No farmers tell me if you can be sustainable and (inaudible) with that. Thank you. Chair Asing: Thank you. Councilmember Chang. Mr. Chang: Thank you Mr. Oyama. I don't know exactly how you worded it but you had said that I guess you're doing some kind of training program where you're trying to help out farmers (inaudible) some of us may know... Mr. Oyama: Oh okay. COUNCIL MEETING • - 79 - ~ May 26, 2010 Mr. Chang: Can you tell us... Mr. Oyama: Okay, okay I didn't want to spend time so I can tell you that because I thought every Councilmember got the word, well what it is, is I've tried... we're doing it... we have a working group, we have formed an organization that we call Kauai Farmers Association non-profit and it's umbrella under the Hawaii Farm Bureau of Foundation and the other one is the Kauai Farmers Development Corporation which we plan to open the doors at the airport, the old Papaya Plant, it took many years, it's a struggle because I do not want to bring only papaya in production. We have to spread our portfolio to be successful that's the reason why many farmers failed, like if you invest in your savings and in the banks and invest in investments, do you take only one (1) investment? That (inaudible) is no, you need... several investment spread out in different segments, if you don't, you're not covering your pocket well, same with this... we want to cover other crops', we want to market whatever produce and fruits as well as papaya and we're not looking at trying to compete with the other countries because you know pineapple has gone out, they're just trying to produce enough for locally and some export, sugar is about to go in Maui if the water condition fails so I just want to let you know that this structure that we're teaching, we are picking up students to train, we're trying to get more grants to do it too. It's the KFA, we are working with trying to acquire land at Kalepa, we are not totally legally in the position to qualify for (inaudible) we are working on it and we hope to be in a month. The development corporation is where we want to do bringing in the products, produces, or fruits or vegetables as well as the papaya for handling, packaging and materially looking for markets but markets we're looking for has to be an area where the farmer will benefit in profit, if it's too cheap, we'll discourage that production. Mr. Chang: So what is the interest or enrollment of the students or the potential farm workers like, what would the number be? Mr. Oyama: It is not, it is not being... I'd be honest it's not being very high because many people don't understand farming and today people have a lot of instant, you know everything is instant today so their habits are trained to be instant use so the work of the farm is not never instant you can ask Ned, you know you can ask Louisa, you can ask Cynthia, it's not instant and that's where the training... we've got to get them like bare hands and train shoulder to shoulder. Mr. Chang: Thank you. Chair Asing: Thank you. Any other questions Councilmembers? If not, thank you very much. I appreciate it. Mr. Oyama: Thank you. Chair Asing: Is there anyone else who wants to speak on this item? If not, I'd like to call the meeting back to order. There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows: Chair Asing: And with that, Councilmember Furfaro. Mr. Furfaro: Mr. Chair so that we can go on with our business may I make a motion to approve this bill and look for a second so we can... Chair Asing: Okay. COUNCIL MEETING • - 80 - • May 26, 2010 Ms. Kawahara: Second. Chair Asing: Okay. Any discussion? Yes go ahead. Ms. Kawahara: Thank you Chair Asing. I'm glad to see that we still have our (inaudible) here, I have watched this group over two (2) years evolve into a sophisticated and practical group of people that have worked hours to bring this bill to us. When Melissa tells us that they are handing this into our hands, it does... it feels like a baby being handed to us to give it a chance to see if there's something that we can do to help farmers. They've made... I believe they held their own County Council, they've made decisions that are hard, they had conflicts within their group but they continued to work closely together to find a solution that will cover the people that they want to benefit from this. They dropped out a wider range of bill so that they could focus specifically on farmers that need the help now. Farmers that can prove that they're farmers and farmers that need the help now. When I see Jerry Ornellas and Roy Oyaina here, initially they had serious concerns as every single person on this council table does and every s~.ngle person on this... in the Chambers here has about abuse... when I see them here supporting this bill, that is practically all I need and knowing this group of people and all of their work they've done on this bill. To me this bill represents food security, healthy community, the proper stewardship of agricultural land, the diversification of the economy and honest farmers. I'm familiar with the Whitlocks and I'm familiar with the Wootens and I know this bill and I know these farmers and this is a bill that will benefit farmers and true farmers. They have given up things that they wanted to get to this place to be able to get what we are able to glue them. I think why everybody takes this so seriously and it is why this is so important because all of us know we are hemorrhaging Ag lands, we are hemorrhaging farmers, to me there's a great urgency in this, to me I also know that there's fear but I'm asking that the Councilmembers here rise above that fear and acknowledge and respect that fact that there are farmers that are going to benefit from this... and if there is abuse, the greatest fear is that there will be abuse... but my point is rise above that fear because there are honest farmers that need this bill, we need this bill, we need to be able to be food secure. If there are no farm workers, agriculture is not viable. I strongly support this bill and I ask for the support of the Council for this bill for all the reasons that I've listed, I do want to thank Councilmember Furfaro, Vice Chair Furfaro for his sharpening of this bill for two (2) years. And also former Councilwoman JoAnn Yukimura, this has been a big ordeal and it has and they are handing it into our hands and I hope that we're able to make a decision that will benefit this entire island. And show a promise that we do support and do want farmers, real farmers farming our land and providing us food security and health community, thank you. Chair Asing: Thank you. With that let me... yes? Go ahead. Councilmember Kawakami. Mr. Kawakami: Before you take the floor I guess... I'm not necessarily afraid of abuse... it dust... it was a concern so... that comment was pointed at me. I'm not fearing of it, it's dust a concern, a big concern. But couple questions I'd like to address to you and maybe if somebody else would like to answer them. You can feel free to chime in, how many farmers actually make thirty-five thousand or more? How many farmers will this actually help, one (1) question. Second question, what's wrong with our current mechanism, I mean I want somebody to identify what is wrong? Because currently from what I understand... if I'm wrong, I can be corrected... if you're a farmer, you don't have your farm worker housing, you can go and apply for a use permit. Now the concerns that came out to the findings was that, the way the bill. is written if you, if you meet all the COUNCIL MEETING • - 81 - • May 26, 2010 conditions you just automatically get granted a use permit without going to the Planning Commission and without going through that process. So I want to know how this is better than what's currently written, how many farmers actually make thirty-five thousand dollars or more, because from what I'm hearing is correct and most farmers can't even make the thirty-five thousand, to me there's a bigger issue besides farm worker housing and we got to take a look at some of the other things that I brought up earlier. I'm not going to rehash anything but how many farmers are actually making thirty-five thousand dollars or more and what's wrong with the current, the current mechanism to allow for this use because we have something that currently allows for it... so all of this saying that you know we're not allowing housing for the farmers, I don't know how true that is, unless I'm completely wrong at reading this as written. So if I'm wrong, correct me. But from what I understand it's allowable. It's just a different process and the current process may even be easier than what we currently have. Questions to ponder. Chair Asing: Thank you. Ms. Kawahara: Mr. Chair? Chair Asing: With that...what I'd like to do... did I hear something? Ms. Kawahara: Oh I thought he was asking something... but I think they were ponder just to ponder yeah? Chair Asing: Okay. Let me do this, I'm going to make a presentation so if you don't mind let me set up please. Mr. Furfaro: Okay we're going to take a few moments and let the Council Chair... Mr. Chang: Caption break? Mr. Furfaro: We'll do a ten (10) minute caption break and let the Chair set up for his presentation and after his presentation I'll attempt to answer some of Mr. Kawakami's questions. There being no objections, the Council recessed at 5:36 p.m. The meeting was called back to order at 5:48 p.m., and proceeded as follows: Mr. Furfaro: I'm going to take over the running of this meeting as the Chairman makes his presentation, so if I could have the attention of the audience, are the camera people back? Mr. Chair the floor is yours. May I have the attention in the audience, we're picking up your discussion on the camera live and Mr. Asing is making his presentation. Thank you audience. Chair Asing: Thank you. First of all let me just start by saying to all of you that have worked so hard so diligently trying to do the job as you see it, I respect you for it. But I have some difficulties and I will explain these difficulties. Let me start by saying I fully support the intent... I'm going to repeat that again... the intent of the farm worker housing bill. However I cannot and will not support this bill in its current form. Let me explain my concerns, first of all the first point that I'd like to make is that in my opinion I feel that this bill is bad planning. Number two (2) this bill I have here on my worksheet, difficult to enforce. Let me take that word difficult away and say... impossible to enforce. Third, this bill will drive up Ag lands costs. Put the first shde on please. COUNCIL MEETING • - 82 - • May 26, 2010 Let me read you this policy. The policy section of the General Plan states... allow incremental growth of towns contiguous to existing development and ask us to limit the development and the dispersal of Ag agricultural communities through zoning regulations, by the way this is not my work, I borrowed it from another Councilmember who made a presentation using this. Put the second one on. Over the years the development of agricultural subdivisions has changed parts of Kauai. What was previously an agricultural rural landscape has been developed into a quasi suburban landscape dotted with residences on large lots. This again is not mine; I borrowed it from another Councilmember who made a presentation. Now let me do this... let me go to 1989. In 1989 the Council in response to the need for affordable housing passed Ordinance 551 which allowed for the building of additional dwellings units on Ag again, Ag and Open zoned lands. You'll note here the vote went six (6) to one (1), who was the one (1)? That's me. I didn't agree with it because I thought it was wrong... wrong, wrong, wrong... in my opinion at that time. I want to also tell you that the Planning Commission also thought it was wrong, wrong, wrong... they did not agree with it but the Council passed it anyway. Now guess what happened? The bill passed in 1989 and there was going to be for a two (2) year period and then we'll see what it looks like and then maybe we can extend it. Well guess what happened when the extension period came two (2) years after we passed the bill... there is this veto message here, this veto message is from the Mayor and the Mayor's veto message states... I'm going to read it... that it is equally important to limit and control the dispersal and of residential and urban use within the agricultural district in order to protect and preserve Kaua`i's agricultural resource base for the future and to prevent low density sprawl which increases the cost of public infrastructure and services. The veto message further states that if there is to be increased densities on agricultural lands, I believe it would be better done as part of an overall look at our rural and agricultural lands rather than an adhoc add on to ADU's, that's the message, veto from the Mayor... bad bill. Of course the Council in its wisdom did not listen to that message so if you look at it here, here is 1989... the ordinance gets passed, two (2) years and there is a veto here go by... we get to 1993 guess what happens? It moves on to 1996, it moves on to 1999 and then comes to December 31, 2006 and now we say wow bad bill... wrong, wrong, wrong... end it. And of course the Council I guess maybe in its wisdom decides even to do this when it came to 2006, yes we ended it but we ended part of it because if you could get a building permit, then you could get the extension so we took that extension that was supposed to expire, in 2006 and guess what, we moved that to 2009 and then in 2009 we moved that again to 2014, when are we going to learn? We said it was a bad bill, we made mistakes. The Council finally stopped the ADUs, history is repeating itself. Let me read this findings and purpose... the Kauai County Council finds that Ordinance 551 the Additional Dwelling Unit law was passed in 1989 to create affordable housing on agricultural and Open zoned lands. Now I don't need to read the rest because it's just wrong but where does this come from? It comes from a bill here that is 843 that we did not do anything about anyway. Now okay... you can put the next one on... now we come to Bill No. 2318. In 2318 what is it again? The farm worker housing bill is now turning into what we said was no good in 1989, that's what we said, it's no good. And then we killed it and what happens now? Up comes another one, draft bill 2318, the only difference in this one here is instead of affordable housing, we use another term and we call it farm worker housing. Now again I think that we're, it's like saying when are we going to learn? We dust said it's no good to one series and then we go back again to the same place, we're going to start again. Are we going to say then we wait another ten (10) years and say oh we made a mistake, maybe we did. Now... let me... go to the next slide. COUNCIL MEETING • - 83 - ~ May 26, 2010 Let me do this, this is the I~lauea area, in this particular slide here this is Kilauea, remember the policy section of the General Plan that states allow incremental growth of towns contiguous to existing development to grow out, what are we doing? Reversing, we're growing in... look at all of this, we're not growing out, we should have kept all this and grow out this way, that's what the General Plan says. But we did not listen, I guess. Now the second slide that I showed you over the years the developer of agricultural subdivision has changed parts of Kauai on what was previously an agricultural rural landscape has been developed into a quasi suburban landscape, here's the suburban landscape. Look at that. Now let me do one more thing for you... next slide... this slide here represents... go back again to the previous slide... in this slide here what we have is five hundred and eighty-five CPR units and they're numbered, you can't see the number here but if you count them, everything that is on this map, there is five hundred and eighty- three CPR units. Now let's say if you pass this bill, as an example two (2) of the main qualifying points is one, it has to be dedicated. Two (2) you need to besides dedication CPR, it has to be a valid CPR. We have here five hundred and eighty- five valid CPR, we also have here two hundred and sixty-one dedicated properties. Next slide... the two hundred and sixty-one... is all of this. We pass this bill, you qualify. The only missing thing that you need to do, the mayor thing... two (2) things, one (1) is the thirty-five thousand dollars, yeah? That's the missing area and the other missing area is farm worker plan, those are the key issues. Now just imagine this, I am someone who lives in this subdivision here, my density is gone, I have children and I want my son or my daughter to have a house to live in, my property's a lodge here. I have the list of the five hundred and eighty-five units in here, I can tell you the owners, I can tell you the size and they're all over the place, it ranges anywhere from three point three nine acres, nineteen, four, thirteen, five, just all over the place. But just imagine this, if I'm somebody who lives in here, my density's gone and I have children and say I want to build a house for you... all I need to do is two (2) things... one is farm and do the thirty-five thousand dollars for two (2) years, I qualify... wow... I do that and I have a farm plan, I can now put a unit on for my children. Wouldn't you do that if you were there? Of course you would. Because it's an opportunity to put a unit on your property for your children and I would do it because I don't think my children could afford someplace else to build a house, so I'm going to do it. So this is what you're going to look like and this is what this bill will do. It could create this as a possibility the potential is there to do it. Now the potential that I'm talking about here is dust one (1) unit, there is a potential for three (3) units on each one of these. The potential is there, you can do three (3), six hundred square foot units. So again it's very, very dangerous. Put the next slide on please. I want to go on now to Moloa`a. Let me explain Moloa`a. The Moloa`a property is in the red here, is the Moloa`a Hui property today. The section in black here represents another portion of this development originally. What happened was in 1997 the developer came in, you can't see it here but there are twenty-two lots because this is the farm Ag subdivision for AMFAC, so some of these lots here extended beyond there so there's all kinds of lots in here. So what the developer did was he came into the Commission and changed this so that all of the lots and you want to bring this... these are the consolidated lots that were in here. And what was done was they took all of these lots, consolidated the lots and after consolidating the lots they ended up with two (2) lots, so the red is lot one (2), the black is lot two (2), the Hui kept the red lot and then the lot two (2) was sold to someone else. So lot two (2) is now out of the picture and all we have is lot one (1). Next slide... now let me tell you what happened after they did this. After they did this they came in to the Land Use Commission through both zoning, COUNCIL MEETING ~ - 84 - • May 26, 2010 special use permit and subdivision totally create this. What the developer did was he created on lot one (1), two Hui's... he called it Hui one (1) and Hui two (2). In Hui one (1) he had nineteen CPR units, in Hui two (2), he had eighteen CPR units, for a total of thirty-seven (37) total CPR lots. Now at the same time he also came in and said representing that on Hui two (2) lots, out of the eighteen (18) lots, only four (4) dwelling units would be allowed, the other fourteen (14) dwelling units... I'm sorry... the other fourteen (14) CPR units, there would be no building allowed. So this is upfront. You want to turn the next map... and here is what I'm talking about, remember the five (5) and four (4) I made reference to, that's nine (9) so they came into the Commission, they got the approval and this is the approval... one, two, three, four, five, six, seven, eight, nine, so the plan was... we're going to do an Ag subdivision here and we're going to kind of cluster the units away from this productive area and for your information this property here approximately one half of this property is (b) rated lands, very, very high class lands. You don't have very many (b) lands on Kauai, let me tell you. So they come in and they get this approval. Then in 2000, the year 2000 they come again and when they come in again they say oh we need four (4) more units, we need four (4) more unit because we cannot sell them. Mr. Furfaro: Mr. Asing, I think it was five (5) units they came in for... Chair Asing: No. Mr. Furfaro: No? Chair Asing: No. Mr. Furfaro, I spent so much time it's... Mr. Furfaro: Oh I agree with you and I wasn't on the Council in 2000 but the number I got from Planning on the history told me they came back for five (5) so if Planning was wrong... Chair Asing: No, no... wait... there's a misconnection and misunderstanding. The five (5) that you make reference to is five (5) units that are allowed in the (inaudible) the Ag parcel... Mr. Furfaro: Got it. Chair Asing: Because the entire Ag parcel allows you five (5) units and there is an additional open area that is approximately forty acres that's where the other units came from. Mr. Furfaro: Got it, thank you. Chair Asing: Okay... now let me read you this, this is the application that caused that... at the opening of the public hearing on August 14, 1997 the applicant represented to the Planning Commission that a maximum of nine (9) farm dwelling units would be constructed on lot one (1), lot one (1) the big lot that has these homes and would be exclusively for the Moloa`a Hui farmers. As a result condition three (3) of the above permits was imposed and reads as follows, dwellings units... and I won't read this, this is for Moloa`a Hui. Now this is in 2000 when they came in and let me read you the request... the applicant is requesting to amend their original representation regarding residential density for lot one (1) by increasing the amount of farm dwelling units from nine (9) to thirteen (13), four (4) more were added. The basis of the request is that there is, there was a need for an additional house sites on the subject property of lot one (1) and after consulting potential farmers and buyers, subsequent to the subdivision approval and lending COUNCIL MEETING • - 85 - • May 26, 2010 institutions would not approve loans on just raw land and without the house sites, so this is how they got the additional four (4) more units. And you want to show that? Let me read some of this because I think it's important, the applicant explored the option of subdividing to accommodate additional farm dwelling units; however, it was determined that subdividing the property would be contrary to the intent and function of this development of an agricultural park subdivision, thus the applicant is seeking the proposed amendment and the proposed amendment... let me just read it to you. Asa (inaudible) the primary purpose of the various permit was to enable the applicant to continue and promote the Ag park use of lands. The intent of that subdivision, Ag park... remember that Ag park. In the Ag park they only allowed thirteen (13) units, the nine initially and the additional four (4). Now let me just read this to you... the various permit was very significant' (inaudible) the overall project concept which was to continue to cluster the bulk of the farm dwelling units within the (inaudible) productive area of lot, it should have been one (1) and to separate the more highly productive lands into other lot, which would be available to affordable farmers. The maximum of thirteen farm dwelling, not involving the subdivision of the property, it was the applicant's intent to preserve the function and significance of the Ag park, thus the additional four (4) dwellings would not detract from the Ag park cluster concept. So I agree with the intent and purpose was to use it for Ag purposes but remember only fourteen (14) units and if it sounds like but he said thirteen (13), nine (9) and four (4) is thirteen (13) the reason it became fourteen (14) is that one (1) lot allows you to put a guest house and that's where the next number came from, the fourteenth (14th) unit from the guest house allowed on the lot. Now I want to emphasize again the reasoning that this came up preserve the land only thirteen (13) units in this area, the rest no units, all farming activity. We keep it in farming, don't lose it, keep it in farming. If we do this we will pass this bill we won't, it's gone. I will tell you now it is gone. Why do I say that? Okay next slide. This one here is just showing you this. These dots here is the original line, these dots here is the four (4) units that they came in and asked for that. Now here's what you have, in this area here what you have is you have now... sixty-one (61) units in this area. By the way, what was the original if you remember the map before this, thirty-seven (37), thirty-seven (37) was the original plan, save everything thirty-seven (37) only. They added another twenty-four (24) why? Why? Some of the lots as small as three point three nine two acres, for farming? That small? Something is wrong. It's going haywire now, now you starting to lose this Ag activity and you're going to lose the land because it's not going to be Ag activity anymore. Okay... try the next slide. Now I just show you this to say this. Go back again one. These dots in yellow here represent out of the total of the number of sixty-one (61) units in here, forty-three (43), forty-three (43) of them has Ag dedication, so you have again in this area and not Kilauea here now you have two of the biggest things you need, all you need is the big thing it is CPR certified. All of this here is certified, you qualify. Number two (2) what else do you need? Forty-three (43) of these are Ag dedicated, forty-three (43) of them. So the possibility of forty-three (43) units being placed in here is very, very possible again if you had a lot in here it was Ag dedicated and you met the requirement, wouldn't you say oh I'll dust farm two (2) years, make thirty-five thousand... boom I get a unit in there. Of course you're going to do that, and that's how you're going to lose it. Because after you do the unit and you don't farm, I do not believe and I use the word impossible, history has shown us that we will not, not take the house down. Not going to do that and I can show you cases like that. Who's going to take the house down if you don't farm? What if you say well I tried after two (2) years and I couldn't make it, the market is not there, the crops fail, use any excuse you want but you could do it. Not you as farmers but I'm not looking at you as farmers, who are the people that bought in here? Shall I tell you some of the people who bought in here? Let me show you this slide first. This slide here represents the entire COUNCIL MEETING ~ - 86 - • May 26, 2010 parcel. The red represents the roadway, this is the roadway for the Ag subdivision in here and if you notice the reason the roads are cut like this is you will note that you gained access to every parcel this way and you notice you get here because that's available to you, that's available, that's available through this road. That's available, that's available, that one is available through that road. So every lot you will see the roadway connected but go there today, it's all dirt roads first of all and it's (inaudible) it's all over grown. Many... if you go there and you drive in over here and try to get here, it's not easy for you to get there. Because it is overgrown, who's taking care of the maintenance of this roadway? I don't think it's doing very much and I know that, I have enough background information that maintenance is almost zero. Try to get this updated. Now can you imagine if you have that... all of those units in here and... what about the maintenance of the road, how are you going to do that? How's the Fire trucks are going to go in here? Today I believe the Fire truck can't get in some of these areas. They just can't. I know, I drove in there, so I know what it looks like. Now... I just feel that you know it's not right, it's wrong. Let me dust do this, I'm going to read... (can you turn on the light) oh that's okay maybe you don't have to. Some of the owners of the property here. This one here happens to be three point three nine two acres address for the building 19 (inaudible) way San Francisco California. Let me read another one, this one here is ten point six four three acres... address Greenglenn (inaudible) Farms Michigan. Oh here's Michigan again (inaudible) Farms again except it's another lot, but two (2). Let me see, this one here is five (5) acres... three, five, six... (inaudible) California. Next one five point three five acres address... (inaudible) Washington. Next one four point seven one eight acres address Highway Applegate Oregon. You're going to lose your land, of course you're going to lose it. You losing it already. Something is wrong, something is wrong. Now I looked at all of the information that I tried to put together and let me use, I guess I said impossible, I said difficult, I wasn't going to go here but I will... go to the next slide. Mr. Furfaro: Mr. Chair before you go to the last... Chair Asing: Well before I do that, let me just do this... show that one. From the original 1997 approval of thirty-seven (37) CPR units, today there are sixty-one (61) total CPR units, what is happening? What is happening? Smaller lots, for what purpose? (try do the next slide) now I'm going to show you this and dust say this, this happens to be an Ag subdivision, now in this Ag subdivision again we have conditions of approval for -this Ag subdivision. (put on the condition) here it is from the Planning Department this is a condition that you have to meet, State law. (you want to throw that) this is that condition... the applicant is advised that uses on the newly created lots, which I just showed you... shall be limited to those as listed... those listed as permissible uses within the Ag agricultural district in the State Land Use Commission rules and regulations. Dwellings on the lot shall mean a single family dwelling located and used in connection with a farm where agricultural activity provides income to the family occupying the dwelling. These restrictions shall be included in the covenants for the purposes for the proposed lots, draft copies of which shall be submitted to the Planning Department for review and approval. Those houses over there, you're going to take them down? They don't meet the requirements, that's the law. You're going to take them down? I don't know about that. Am I getting clearer now? It might be impossible, I had to word very difficult but I changed that to impossible. There's a lot of houses in that area. I will agree that I see some people trying to do Ag activity, I give them credit, not everybody is not doing Ag... people trying and I respect that but the fact is enforceability... is it going to happen, I do not believe so. History tells me otherwise and I know it for a fact on what has happened is continuing to happen and these are dust some of the kinds of concerns that I have. I would love to work with you to try to get something better but I cannot vote for this. Look at what you're going to do to the rest of the island. I showed you Kilauea, COUNCIL MEETING • - 87 - ~ May 26, 2010 what about Wailua? What about Lihu`e, what about Koloa, Oma`o, Hanapepe, same thing. You're going to ruin the island, you've ruined it already, we have ruined it already. And it's going to get worse unless we start to work together and try to come up with something that is more workable. I just do not believe that this is the method that we should be using to do this and I have some just major concerns about this. And granted I know that some of you are working hard and trying to farm but please try to understand this, in the very beginning, the very beginning now yeah? It was Ag purposes nine (9) clustered towards the outside, nine (9) preserve all of this land, good idea... I was one hundred percent for that. What has happened today? (next one, next one, no... I looking for the ones with the sixteen, seventeen, eighteen, nineteen... you don't have sixteen) let me show you this, let me read it to you. This is Hui lands here, what is that? Let me go over here now and let's just pick the acreage. Land area ten point six four, list price, look at that, seven hundred and eighty-nine thousand dollars, can you farm paying that kind of price? I don't know how you're going to farm paying that kind of price. Next slide. Here's another here. Look at this, this one here acreage seven point two six, look at the list price, listing price nine hundred and twenty-five thousand dollars... you farming over there? I wonder if you farming. (Next slide -don't have to go to this one, the next one) I'm just showing you this because... (go back again one) okay look at this one, this one was on the market, here you go, listed date 11/17/2007, this is one of the units that was allowed, one of the initial units that was allowed, look at this... farming? Yeah I don't know maybe farming but list price, what is the hst price here? (you want go to the next... no... okay I'll find the list price here... okay but I think we can get this big yeah? No? okay) now here's the list price one point eight seven five million... that's what's going on over there. We losing it already. Now these are the kinds of things that is going on over there that's happening and I just have some major, major problems on what's happening, what we're doing here. Sometimes I think we haven't learned, we go back and look at history and we said oh yeah we made a mistake, we correct it. And we go back again and do the same thing, something is wrong. And so I have serious reservations about this bill, I cannot support this bill, I just cannot, it's wrong, it's going to affect the whole island not Moloa`a. Moloa`a is one (1) portion of the island, Kilauea, Moloa`a one portion of the island. Wailua Homestead, Lihu`e, Koloa, Omao, Lawa`i, Hanapepe, Waimea they all included in this and if we're not careful that's what's going to happen to us. And for that reason, I have some grave, grave reservations about the bill and I cannot .support the bill for these reasons. Thank you. Mr. Furfaro: Mr. Chair I think we want to take appropriate dinner break here. Chair Asing: Yes. Mr. Furfaro: For the staff, I certainly do want to say that I appreciate your presentation, it brings a bigger issue to the fact as you pointed out in Moloa`a they took what was a subdivision put it back together to create a CPR process that gave them sixty-three (63) units and that was one of another way of getting around the single subdivision process but I would have raised a legal question back in 1997 to say subdividing a parcel and then putting back a parcel again is in my opinion a second subdivision. I would also like to just point out before we break, I have full respect for your history on the things but this bill had eleven (11) controls points in it and as you flashed the owners there, one of the amendments that we have in the proposed business... bill is a exclusive residency which means that the property is the person's only home of residence. If the person has moved, more than one home or residence, then the person does not have an exclusive right to any residence on the parcel. So I just to say some of your presentation today there are eleven (11) other conditions that we haven't got to that may address our understanding and at the same time I do want to say some of these COUNCIL MEETING • - 88 - • May 26, 2010 things that have occurred, we have to depend on your history because they didn't happen on our watch. Chair Asing: Yes and let me close if I may? Mr. Furfaro: Oh yes you have the floor. Chair Asing: As I researched this issue it appeared to me that the condition of the variance permit granted by the Planning Commission are not being followed or adhered to. I am asking that the County Attorney and the County Auditor look into the Moloa`a subdivision and CPR's to determine if there are violations of the permit, violations of the permit, and the County's zoning and subdivision ordinances. If these conditions of the variance permit are not being followed, we should not allow the development of farm worker housing because it'll compound the problem. So I will be sending a communication both to the County Attorney's Office, I have touched basis with him but I will send a formal communication. I have also touched base with the County Auditor's Office and I will also be sending them a communication to look into this. With that thank you. Mr. Furfaro: Mr. Chair may I just get some clarification because I too when I went to this particular density locations,' it seems that some of the units... their locations have been changed, just for Moloa`a, without record keeping at the Planning Department, is that what you're referring to? Chair Asing: It's a little questionable, those dots that you see there... of the location of the units were put on and I have the original... well not original... I have a copy. Mr. Furfaro: Of the original. Chair Asing: Of the original map and so those dots are specific to that lot, if the dot is there, that's the lot that has the housing density otherwise you can't move it but there was one... another questionable area to and that's the guest house if you notice there was a guest house on a separate lot, I do not believe you can do that legally. The guest house is an accessory to the main house, which means what? It has to be on the same lot because it is an accessory to the lot, the house and in this case here I noticed that the guest house is on another parcel and you cannot do that because it is an accessory, you cannot take that accessory and put it on another lot, so that I believe is a violation also so. Mr. Furfaro: Well thank you for that clarification as there was... when I raised the question there was some applied... implied trading of the density and that's what triggered this exclusive residence amendment of one of the eleven (11) conditions but I think sir on that note, we need to break for dinner. Chair Asing: Okay. Mr. Furfaro: That's fine with everybody? And we move to break for dinner and come back at I guess that's 8:45 p.m. Mr. Kaneshiro: 7:45. Mr. Furfaro: 7:45 I'm sorry. So we're on dinner break. There being no objections, the Council recessed at 6:45 p.m. The Council reconvened at 7:57 p.m., and proceeded as follows: COUNCIL MEETING • - 89 - ~ May 26, 2010 Ms. Kawahara was noted excused from the meeting. Chair Asing: Meeting is now called to order. We have a motion on the floor, any further discussion? Mr. Furfaro: May I ask... Chair Asing: Yes. Mr. Furfaro: If I could have that motion, is that a motion to refer, defer... is that... what kind of motion is that on that floor. Chair Asing: Motion to approve. Mr. Nakamura: The current... the motion is to approve. Mr. Furfaro: Okay I do want to say that if we do call for a question on the approve and now we get an absent excuse with Kawahara the fact of the matter is I don't think we're going to get to a point that you know, the question will be resolved and it will automatically go to a deferral. Chair Asing: Yeah. Mr. Furfaro: So I mean the question is should we just defer till the next Council meeting? Chair Asing: No I suggest we take the vote. Mr. Furfaro: Okay. Chair Asing: We have the motion on the floor now, is there any further discussion? Councilmember Bynum. Mr. Bynum: I hardly know where to start because I am very disappointed about the presentation that the Chair dust gave, so I'll start with my... I'll start with a question if I may Mr. Chair? Chair Asing: Sure. Mr. Bynum: You gave an example of an Ag subdivision up there, happens to be the one I live in, is there a particular reason why of all the Ag subdivisions in the County you would choose that one? Chair Asing: No, it's a simple small easy to gain access to and I didn't mention any names or anything... there was no names mentioned, I had the courtesy of always not addressing people concerned of using names, so I don't do that and it was not my intent. - Mr. Bynum: Well I've told... yeah okay... well I'll dust move on from there. Chair Asing: Sure. Mr. Bynum: I'm disappointed also because I think your presentation compares apples and oranges... the situation with Ag subdivisions proliferating around the island, we've discussed here on Council a number of times, COUNCIL MEETING ~ - 90 - • May 26, 2010 especially during the recent open space density bill which passed. And the General Plan you know the slides you used were from a presentation that I've given in the past, that I'd probably give again because I think it's an important issue for Kauai that there indeed has been abuse of agricultural land wide spread for many years on, on Kauai. I believe one of the biggest, one of the biggest abuses is that even though ten (10) years ago in the General Plan the proliferation of Ag subdivisions was identified as a Planning problem that didn't realize our vision for Kauai in the future that impacted agriculture and sustainability and caused cost, increase cost for the county as we can't, it's difficult to service agricultural sprawl and defacto residential subdivisions, and the General Plan asks us to address that in the year 2000 very clearly. It said that the Open space density bill was a critical issue that should be dealt with right away and it took us ten (10) years and we still have not addressed the issue of subdividing agricultural land for defacto residential which is dust gobbling up Ag land but the bill before us is not that, is not about ADUs and I applaud and recognize that the Chair opposed ADUs consistently throughout the history on Kauai. I think that was the right position to take because it ~~ust exacerbated that problem of sprawl on agricultural lands just like the Open space density that caused that problem, the ADU doubled that problem and it's good that that was finally sunset. But we have yet to say to establish this simple criteria, if you subdivide agricultural land, show me that it's for Ag and if it's not, we should say no but we never developed those regulations. The former Mayor Baptiste put forward that proposal twice during his career and was not able to be successful at this Council and that is a huge problem. Why did it take ten (10) years, why did it take eight (8) years to regulate vacation rentals? But the bill before us says that there are people on Kauai who do use agricultural land for Ag, who do produce food and do organic and sustainable Ag and they've come to us and asked for some support of agriculture. So as the County we sat here for ten (10) years and allowed this abuse to continue when every other county has addressed it one way or another but we couldn't find a way to do it somehow, when real people who are really doing Ag come and ask for our assistance, now we're really worried about that abuse, right? I believe and I said this before, I'm concerned about that abuse, I think we should have passed the CPR bill long time ago, I think we should have passed a bill that addresses the use of agricultural land a long time ago and you know that's one of the main reasons I got involved in elected politics because I wanted to be somebody that was a very high priority. I have disclosed more times than people want to hear probably that I live on a agricultural subdivision. I didn't know these issues in 2000 when did this happened, I just knew that there was land available for my family. I know now that that was poor planning, I know that that wasn't good for the county of Kauai, I know now that as the slide you said says because we allowed that, we weren't developing working class neighborhoods for working people, we still aren't. They're few and far between. But this bill is about Ag and there are eleven (11) provisions that were worked out over a two (2) year period to try to address whether that abuse occurs. So when that abuse is occurring on Ag subdivisions that has permanently subdivided huge portions of this island, nobody does anything. Nobody moves on it but when we try to come up with a bill with provisions to address abuse to really help people who are growing food and farming, we're so worried about abuse that we can't pass it. I said in previous meetings that I believe that good work that's been done in a collaborative effort by the community, along with leadership from our Planning Chair have crafted a bill that I think addresses those concerns enough for us to move forward and give that opportunity ' to actually help real farmers who are trying to farm, so I will be supporting this bill and I will be very disappointed when it goes down and I wish that we would talk about the bill and not mix up a whole bunch of history in a way that I don't think accurately portrays the issue. Thank you. Chair Asing: Thank you. Any further discussion? Councilmember Furfaro. COUNCIL MEETING • - 91 - ~ May 26, 2010 Mr. Furfaro: Ah yes Mr. Chair since I asked the question about ' the deferral and we're actually going to call for the vote now I do have some things to speak. Chair Asing: Sure. Mr. Furfaro: And I would like to get a clarification of the rules if I can have the County Clerk first present. Chair Asing: Sure. Mr. Furfaro: May we ask for the County Clerk? Could you introduce yourself. Mr. Nakamura: Council Chair, members my name is Peter Nakamura, County Clerk. Mr. Furfaro: Ah Mr. Nakamura I've been working on this bill for almost two (2) years and I believe for all of the work put in by other people in the farming community and so forth, I cannot outright... I could look for a deferral or I could try to be one of the votes to make this forward but we have one (1) member that's excused himself, we have one member that's traveling on business, tell me if we get to a three/two (3/2) call on the question... the bill would automatically come back, that's my interpretation of the rule, the bill would automatically come back in two (2) weeks, which would make it about June 9th because you know we never got to a majority. Mr. Castillo: Excuse me. I would like to speak with the County Clerk before... just to make sure that the answer given is... has legal basis. Mr. Furfaro: Okay I mean that's fine... Mr. Castillo: Just to be clear that we're on the same page and we have enough time to closely analyze the situation, I dust don't want for us to be placed on record as far as... I think it would be prudent. Mr. Furfaro: I appreciate the... I appreciate the caution from the County Attorney but you know I'm, I'm pretty familiar with the rules and the way I interpret the rules and I wish we would have had a review when Mr. Chang and I introduced rules review but I just want to make sure that if we're pursuing this way and we come to a three/two (3/2) vote, with one recusal and one absent, we do not get to a majority of the vote. Mr. Castillo: I understand but I think it would be prudent. I have the Council rules in my hand and I think... Mr. Furfaro: Shall I ask the Chairman for recess so that you can consult... Mr. Castillo: I'm requesting a recess just to be sure. Mr. Furfaro: Thank you. Chair Asing: Okay. Let's take a short recess. There being no objections, the Council recessed at 8:07 p.m. COUNCIL MEETING ~ - 92 - • May 26, 2010 The Council reconvened at 8:27 p.m., and proceeded as follows: Chair Asing: The meeting is now called back to order, with that Councilmember Furfaro. Mr. Furfaro: Thank you Mr. Chair. So are you prepared to answer my request on the interpretation of what might be a two/three (2/3) or three/two (3/2) vote. Mr. Nakamura: Council Chair, Councilmembers, Ithink it would be prudent at this time to have the County Attorney come up and address that question. Mr. Castillo: Good evening Council Chair, members of the Council, Al Castillo County Attorney. Yeah I have a couple of suggestions... Mr. Furfaro: First of all I want to make sure you understand earlier I asked if we couldn't just defer this bill because of the makeup of the current body and this hour and we're going for a vote so... what does that mean? Mr. Castillo: That's part of my suggested alternatives. One is I would strongly suggest that this matter be deferred because of legal reasons. Number two (2) if not then it's an unanticipated that one of the Councilmembers is absent, I did not know about it, I was never told so based on that if this Council does not defer this matter, I would ask that we hold an Executive Session because the briefing or consultation does involve consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as it relates to this agenda item. There in Executive Session I could give you the legal analysis of this subject matter so it's...either one is fine, it's... I'll leave it up to this body. Chair Asing: Based on the recommendation of the County Council... move to defer. It's worth a try. Did our County Attorney just strongly address us to defer this bill? Mr. Castillo: I gave an alternative. Chair Asing: Hang on... one at a time. I'm going to take Councilmember Furfaro and then Councilmember Kawakami then Councilmember Chang. Mr. Furfaro: I just wanted to know the procedure from the County Clerk as... there is a... there was a motion and a second... was there not? Mr. Nakamura: Correct. Mr. Furfaro: So shouldn't that be withdrawn? Mr. Nakamura: A motion to defer can be made at any point in time during the motion. Mr. Furfaro: No, I'm referring first to the question, did we not earlier make a motion to... Mr. Nakamura: And a seconded to approve the bill. Mr. Furfaro: Shouldn't that be removed? COUNCIL MEETING • - 93 - ~ May 26, 2010 Mr. Nakamura: A motion... Mr. Furfaro: First. Mr. Nakamura: To defer while that motion is pending. Mr. Furfaro: Oh it can be? Mr. Nakamura: Yes. Mr. Furfaro: I just want to be very clear about this because we're only five (5) members so therefore I will probably ask, has a second once I allow Mr. Kawakami to have the floor, I think that's only fair. Mr. Kawakami: I don't think he answered the question though, but that's okay. But either which way... if that's what the recommendation is I mean you know... I know where I'm going with the issue... I'm not going to support it and we're still discussing the original motion because there was no second for the motion to defer. Mr. Furfaro: That's correct. Mr. Kawakami: And you know... Chair Asing: Excuse me, there is no discussion on a motion to defer. Mr. Kawakami: There is no active motion to defer. Chair Asing: Yeah. Mr. Kawakami: So I'm discussing the original motion. Chair Asing: Even though if it was seconded there is no... Mr. Kawakami: Yeah there would be no... and so I would not be able to talk right now but... Chair Asing: No. that's fine. Mr. Kawakami: You know I know this issue is important for Councilmember Kawahara, she's not here... she's on official county business and I don't have any problem deferring it, we're going to come back in what two (2) weeks? And I'm going to vote the same way anyway. Chair Asing: Okay. Mr. Kawakami: So you know instead of dragging this thing out and everybody going to discuss their points again. Just defer so we can go home. Chair Asing: Councilmember Chang. Mr. Chang: Yeah I... it seems like we're going to have a deferral but since this is fresh I want to take this opportunity to dust state my position here. When... thirty years ago when I traveled the State extensively throughout the State, one of the crying slogans throughout the State was from the COUNCIL MEETING ~ - 94 - • May 26, 2010 people of Maui, we don't want Maui to look like Waikiki, and when I would come to Kauai the crying slogan was we don't want Kauai to look like Maui, so I want to start off my statement that way. Secondly when I moved over to Kauai the crying slogan was keep Kauai Kauai and I could understand that. One of the phrases that many people are familiar with is out of sight out of mind and I believe when you drive throughout this island of Kauai approximately eighty percent of this island is inaccessible, about ninety-two, ninety-three, ninety-four percent is undeveloped, thank goodness. When I mean out of sight out of mind is when we drive through these communities we are oblivious with what is over this tree line, what is on that mountain ridge, what's behind that ridge that I cannot see. I have quite recently and I can remember the visual that I got, had the pleasure I should say or the shock to fly over areas that I knew never existed. For example where did that house come from, my goodness look at the size of the swimming pool, um look at the guest cottage, is that a heliport where a helicopter can land? With that being said I have chatted with a lot of people within agriculture business and the hardest thing that many people have is finding workers to work on the farm and when we have example harvesting seasonal picking of coffee at the Kauai Coffee Fields, if the economy or the when the economy gets better or when the economy was good, you may see a worker for one day a week or a month but you won't not see them the next day, the next week, or the next month, that's dust how it is. People shift around and the average age of a farmer on the island of Kauai is about fifty-nine years old, there's not a lot of interest in the younger people getting involved in the farming and what, what I am afraid of is when houses get... or temporary farm worker housing gets built, the farm can increase but the labor force can deplete because people have different interest, they don't want to be around... or for whatever the reason. Now fudging from the people that I talked to based on a temporary housing unit, that is not elaborate, it's built to be broken down if the farm doesn't continue on. Anywhere from a thousand to a twelve hundred square feet can be anywhere between on the low side a hundred thousand, maybe a hundred fifty thousand dollars or what have you so I think a very good alternative at this point is the rental market is probably at the best that it's been or there's a lot of availability, so for a hundred thousand dollars if you are getting a place at eighteen hundred dollars a month, twenty-two hundred dollars a month, twenty- four hundred dollars a month, or three thousand dollars a month, you're looking at a three (3) bedroom, maybe four (4)... two and a half bath home, the workers are now living pretty comfortably... hot water, basic cable, no long distance call but you've got a landline, you can plug in a computer, you probably would have a yard, or you would like to find a place where you can have a yard that you can grow crops and seeds and other... to plant within the yard, the workers can make their food, they can make their lunch, they got a microwave, they got a stove, etc... and not only that for the amount of money that you could buy a new or used SUV or van would be about twenty thousand dollars, so basically depending if you want to get a one bedroom or a two bedroom... you would be spending anywhere between on the low sixty-five to seventy-five thousand dollars a year or seventy-five to eighty-five thousand dollars a year on the high but then you can access the mode the climate the economic times within how to shift what you're shifting... to me I think that the majority of the people here on this island of Kauai drive a minimum I would say of ten, twelve, thirty... I beg your pardon... ten, twenty, thirty maybe more but on an average round trip to get to and from work, that's the norm. The average people may spend between thirty and an hour and thirty minutes depending on the traffic getting to and from home so if a worker needs to drive fifteen minutes or twenty minutes and shuttle the people in and out, that to me is a extremely good compromise and yet if the farm worker housing is an issue then I think the biggest problem with what we're dealing with is... I believe everybody supports the farmers, I do myself. In the old days buy Kauai think Kauai. Kauai Made personally from farm to table, I get involved with Chef Takahashi at the Sheraton, I sent a lot of my people in fact I send all of my people whether they go or not to the open markets COUNCIL MEETING ~ - 95 - ~ May 26, 2010 throughout this island of Kauai itself. I believe that the problem really exist in the fact that if and when a temporary structure again is built, the possibility of removing that structure if all of a sudden you have four months to break that structure down, and I said you know what you want it down, you break it down, from the minute that conversation hits... to the minute it gets legally taken care of, that starting process would be a minimum of two (2) years. So if there's one, two or three, three, four or five... per year or every other six (6) months, who knows because everybody or there are those that knows how to navigate throughout the loopholes and consequently when something like that happens, I've been told that that process can take years and years and years... to come to a conclusion consequently who stuck with fighting the lawsuit? The taxpayers, that is my concern, I just... I believe that this should be deferred, I just wanted to because it was fresh to bring up that bullet points but I also do want to say that depending on the outcome is I hope that this Council and I hope somebody can help me or teach us how through a special use permit, we can help those that we all know that are qualified, that are identified because the Planning Department knows exactly who the farmers are, they know the workers, I believe that they really don't have any concern about a business plan, I believe that they're very concerned with the enforcement and of what can happen as far as consequences are concerned. Thank you. Chair Asing: Thank you. Councilmember Furfaro. Mr. Furfaro: Thank you very much and since I originally I asked about deferral on this, I want to go back and just touch on some of the pieces here. Chair Asing: Go ahead. Mr. Furfaro: First of all I really want to make clear and I made some copies (inaudible) the staff to pass them out. This is my own notes from the meetings over the last two (2) years that deal with conditions of which there are eleven (11) scattered through the bill that deal with control mechanism and I'm more concerned that this pilot program doesn't take us away from home rule and the reason I say that, I would like to read this piece that we gotten today from the Land Use Research Foundation of Hawaii. This is letter is to serve as a clarification of the testimony we submitted this morning. LURF is not opposed to Bill No. 2318 Draft 3 in fact we support it with the recommendation that it doesn't apply to Important Ag land. That basically is saying that the State wants to decide on the conditions for workforce housing in our agricultural districts, it also says that their conclusion on this will be read some the correspondence, we'll give you up to fifty acres of camp type housing, that you will be responsible for the roads, the water, the waste removal and so forth... so they like what we're doing but they don't want it applied to them, they don't want it applied to them because we have a number of home rules statistical information in there that deals with every application is looked at as an individual application and one of those examples here that takes us away from people being absentee owners on Ag land is the fact that exclusive residence is... you're required means that the real property that the person only... person's only home or residence is that which they are living in for farming activity. If the persons has more than one home of residence, than the person does not have an exclusive residence for the purpose of farming. The other eleven (11) conditions are in there. I also have correspondence that I've been working on, its specifically dealing with the Moloa`a farmers and their interest as it relates to specific issues with Moloa`a, and I want to say to the Chair, I appreciated his presentation and I guess I'm going on the idea that you're still going to pursue these issues that you mentioned today and I don't necessarily think it should be done with the Audit but more dealing in an Executive Session and having those conditions in the bill that have been ignored from Moloa`a reviewed in the piece that COUNCIL MEETING ~ - 96 - ~ May 26, 2010 deals with County Attorney review. I also want to touch of the fact that although this ADU piece was going since 1986, I was not part of the Council then but the compromise I thought and was introduced by me was to have an exit strategy to kill those ADUs where we allowed people to apply, disclose that they were going to build and they got a special certificate which amounted to three hundred and thirty- one across the island that still wanted to have the opportunity to take advantage of that 1986 law so I agree we had an exit strategy there. This bill is not about developers although we seem to have some developers that got a little out of control. I don't understand how Moloa`a was subdivided, then put back together. I thought the rule was aone-time subdivision since the Chair brought it up and we need an interpretation. This bill with its eleven (11) control mechanism that are reviewed individually have to apply in front of the Planning Commission and they will get conditions but this statement from LURF bothers me that we had this opportunity for a pilot program and to put in some controls at the County level, the home rule level, and then in their letter saying oh we support the bill but don't let it apply to Important Ag lands. That's a double standard if I've even seen one so. I will move for the deferral and I do thank you for your presentation because you brought up some issues that certainly needs to be resolved but I think through the County Attorney's Office and an Executive Session. Chair Asing: Okay let me just make a couple comments and I let me dust do this... the bottom line for me is simply this... the possibility of abuse outweighs tremendously the benefits and leave it there. And there is no question in my mind history has taught me a lot. And if we haven't learned, we're going to go back again and do the same things over again and make the same mistakes that we learned before but not well enough, that's one (1) statement on the bill. The second one is an answer to Councilmember Furfaro your I guess feel on that it should be... you know I should refer to the County Attorney's Office, I am not, not looking at just legal issues, I am looking at process. Process as an example from the Planning Department, from the Real Property Tax Office, from the Building Division... because you as an example in this case, class (4) permit... variance permit, subdivision permit, now you get these approved with conditions, so what I'm saying is that when you get this approval, yeah, like as an example, let me use an example and say the Planning Commission has approved the building of this hotel and here are the conditions, do we do nothing and just let the project go and wherever it goes, it goes or do we in fact monitor, check... are they in fact following the process, are they within the rules and that is process so that's the reasoning behind the Auditor's Office and the County Attorney's Office, it's kind of a multiple... Mr. Furfaro: Well I just want to share with you, I think going to the Auditor is probably... I would recommend going to the Attorney's Office... Chair Asing: Yeah. Mr. Furfaro: I just want to share that. Chair Asing: Yeah. Mr. Furfaro: And obviously you know you talking to someone who has been on the CZO, I've served on the General Plan, I have also been a Planning Commissioner for one (1) term and you know at the end of the day I certainly know the difference between a hotel occupancy permit and a six hundred square foot farm worker dwelling. What I'm most concerned about, we have an opportunity for a pilot program here and here we have a LURF guys saying to us oh yeah we like what you're doing but don't include us. Chair Asing: Okay. COUNCIL MEETING ~ - 97 - ~ May 26, 2010 Mr. Furfaro: I think we lose home rule on that. Chair Asing: Okay. Well you know... let me just do this, I will entertain a motion to defer, I don't agree with it but let's just go with that... Mr. Furfaro: I think Mr. Bynum... Mr. Bynum: Move to defer. Mr. Furfaro: Second. Upon motion duly made by Mr. Bynum, seconded by Mr. Furfaro, and unanimously carried, Bill No. 2318, Draft 3, was deferred. Chair Asing: All those in favor say "aye". Motion carried. Okay there being no other items on the, except the Executive Session so we are going to move into Executive Session, prior to doing that can we have the County Attorney up please? There being no objections, the rules were suspended. Al Castillo, County Attorney: Pursuant to Haw. Rev. Stat. sections 92-4 and 92-5(a)(4), and Kauai County Charter section 3.07(E), the purpose of this executive session is to provide Council with a briefing and to request authority for a possible settlement proposal in the matter of County of Kauai vs. State .Farm Insurance, Claim Number 51-0630-100 and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. EXECUTIVE SESSION: Pursuant to Haw. Rev. Stat. ("H.R.S.") §92-7(a), the Council may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance. Any such executive session shall be held pursuant to H.R.S. §92-4 and shall be limited to those items described in H.R.S. §92-5(a). (Confidential reports on file in the County Attorney's Office and/or the County Clerk's Office. Discussions held in Executive Session are closed to the public.) ES-442 Pursuant to Haw. Rev. Stat. sections 92-4 and 92-5(a)(4), and Kauai County Charter section 3.07(E), the purpose of this executive session is to provide Council with a briefing and to request authority for a possible settlement proposal in the matter of County of Kauai vs. State Farm Insurance, Claim Number 51-0630-100 and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. The meeting was called back to order, and proceeded as follows: Mr. Furfaro moved to convene in Executive Session at 8:50 p.m., as recommended by the County Attorney, seconded by Mr. Chang, and unanimously carried. COUNCIL MEETING ~ - 98 - ~ May 26, 2010 ADJOURNMENT. There being no objections, the meeting was in recess at 8:50 p.m. The meeting was called back to order at 9:14 p.m., and there being no further business, the meeting was adjourned. ully submitted, PET R A. NAKAMURA County Clerk /ds