Loading...
HomeMy WebLinkAboutP-0107.01-16 Council Minutes 10-2009- r i COUNCIL MEETING October 7, 2009 The Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, Historic County Building, 4396 Rice Street, Room 201, Lihu`e, Kauai, on Wednesday, October 7, 2009 at 9:17 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 APPROVAL OF AGENDA: Mr. Bynum moved for approval of the agenda as circulated, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? PETER A. NAKAMURA, COUNTY CLERK: The next matter are communications for receipt. On page 1 of the Council's agenda, communication C 2009-317, C 2009-318, and communication C 2009... oh, I am sorry, just communication C 2009-317 and C 2009-318. C 2009-317 Communication (09/01/2009) from the Chief of Building Division, Public Works Department, transmitting amendments to Chapter 13 (Electrical Code) of the Kauai County Code 1987, and adopting the National Electrical Code, 2008 Edition, as the standard for all electrical work: Mr. Bynum moved to receive C 2009-317 for the record, seconded by Mr. Furfaro, and unanimously carried. C 2009-318 Communication (09/18/2009) from Ronald A. Sato, AICP, Project Manager, Wilson Okamoto Corporation, transmitting for Council information, in accordance with Article 3, Section 11-3.1 (c)(2)(A) of the Kauai County Code 1987, as amended, the Affidavit as to the mailing and delivery of the Notice to area residents relating to Bill No. 2324 (State Land Use District Boundary Amendment), Bill No. 2325 (General Plan Amendment), Bill No. 2326 (Zoning Amendment), and Bill No. 2327 (Visitor Destination Area (VDA) Amendment), for Kauai Lagoons Resort Density Amendment Project, Applicant: MORI Golf (Kaua`i), LLC, Tax Map Keys: (4) 3-5-Ol:por. 27 and por. 168, Nawiliwili, Kauai, Hawaii: Mr. Bynum s COUNCIL MEETING - 2 - ~ October 7, 2009 moved to receive C 2009-318 for the record, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for approval on the bottom of page 1 is communication C 2009-319. C 2009-319 Communication (07/14/2009) from the Chief of Police, requesting Council approval to expend $12,000.00 in asset forfeiture funds to purchase four (4) laptop computers for the Traffic Safety Unit (TSU) which will be used to utilize the newest version of the Mapscenes software: Mr. Chang moved to approve C 2009-319, seconded by Mr. Kawakami, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for approval on the top of page 2 is communication C 2009-320. t C 2009-320 Communication (09/11/2009) from the Housing Director, requesting Council approval of the process of the purchase and repair of 4262 Oama Place, Lihu`e, Hawaii 96766 (Hokulei Estates) and to allow a second acquisition on an offer to purchase in the County's NSP Foreclosure Acquisition Repair and Resale project which has been accepted at $336,000.00: Mr. Furfaro moved to approve C 2009-320, seconded by Mr. Chang. Chair Asing: Any discussion? Mr. Furfaro: Yes Mr. Chair. I just want to share that this is part of the neighborhood stabilization plan and, in fact, funding for this comes from the Federal Stimulus moneys. Chair Asing: Thank you. Any further discussion? The motion to approve C 2009-320 was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter is a claim, communication C 2009-321. CLAIMS: C 2009-321 Communication (09/17/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by State Farm Insurance for damages to Jim Delacruz' vehicle, pursuant to Section 23.06, Charter of the County COUNCIL MEETING • - 3 - ~ October 7, 2009 of Kauai: Mr. Bynum moved to refer C 2009-321 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: Mr. Chair, on the first bill for first reading Proposed Draft Bill No. 2330, we are waiting for a communication from the Planning Department, so I ask if we could move this to the end of the agenda. Chair Asing: Thank you. So noted. With that, next item please? Mr. Nakamura: The next bill for first reading is Proposed Draft Bill No. 2331. BILLS FOR FIRST READING: Proposed Draft Bill No. 2331 - A BILL FOR AN ORDINANCE AMENDING CHAPTER 13 OF THE KAUAI COUNTY CODE 1987, AS AMENDED, ENTITLED "ELECTRICAL CODE," ADOPTING THE NATIONAL ELECTRICAL CODE, 2008 EDITION AS .STANDARD FOR ALL ELECTRICAL WORK: Mr. Furfaro moved for passage of Proposed Draft Bill No. 2331 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for November 4, 2009, and that it thereafter be referred to the Public Works/Elderly Affairs Committee, seconded by Mr. Bynum, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Thank you. Before we take the next item, let's have a short recess. There being no objections, the Chair called for a recess at 9:21 a.m. The meeting was called back to order at 9:41 a.m., and proceeded as follows: Chair Asing: With that, Mr. Clerk. Mr. Nakamura: Mr. Chair, we are on page 2 of the Council's agenda on a bill for second reading. BILLS FOR SECOND READING: COUNCIL MEETING ~ - 4 - • October 7, 2009 Bill No. 2321, Draft 1 - A BILL FOR AN ORDINANCE ESTABLISHING A NEW ARTICLE 19, CHAPTER 22, KAUAI COUNTY CODE 1987, RELATING TO PLASTIC BAG REDUCTION: Mr. Bynum moved to approve. Mr. Kawakami: Mr. Chair, for this agenda item, I will be recusing myself. NOTE: Mr. Kawakami left the Council Chambers at 9:41 a.m. Chair Asing: Thank you. With that, before I entertain a motion, I just want to say that I had sent over a communication to the County Attorney's Office as I said in the last meeting for them to review the bill for any changes that they feel would be better handled on the legalities of the bill. We did receive the information back from the County Attorney's Office with their proposed amendments and all of the Councilmembers have the communication that was sent from the County Attorney's Office together with the amendments. So with that, Councilmember Bynum? Mr. Bynum moved for adoption of Bill No. 2321, Draft 1 on second and final reading, seconded by Ms. Kawahara. Chair Asing: With that, go ahead. Mr. Bynum: Mr. Chair, I have an amendment to the bill that incorporates the recommendations from the County Attorney, so I would like to move to amend as circulated. Mr. Bynum moved to amend Bill No. 2321, Draft 1 as circulated, seconded by Ms. Kawahara. Chair Asing: We are on the amendment as circulated. All those in favor say aye. The motion to amend Bill No. 2321, Draft 1 as circulated was then put, and unanimously carried. Chair Asing: What I would like to do now is I'd like to suspend the rules and I would like to have the public's input first. With that, the rules are suspended. There being no objections, the rules were suspended. Chair Asing: Glenn? GLENN MICKENS: For the record Glenn Mickens. Thanks Kaipo. I have a testimony and I think you have a copy of it. It is for John Hoff. He is a f ` • COUNCIL MEETING - 5 - October 7, 2009 substitute teacher, so he couldn't make it today, so he asked me if I would be kind enough to read his testimony. Before I started, I just want to say that I am in favor of this bill personally. I think it is a good bill. I haven't seen your amendment yet Tim, but I would like to see the amendments to it and everything, but basically I am definitely in favor of this bill... anything we can do to stop this flow. Let me... it is not that long, so I will read it quickly. Plastics seen as an asset. That is the title of his bill. It never ceases to amaze me how difficult it is for individuals to listen and learn. If only they would open up and listening capabilities, they might just learn a few vital facts concerning plastic bags. Plastic bags are an asset both economically and environmentally, but certain individuals will just not listen to reason or truth. It is repeatedly claimed that plastic bags are non-recyclable, they are killing our companions around the world. It is not the plastic bags killing our animals, cohabitants on earth, it is the ignorance of littering and individuals that will not recognize the fact that plastic bags, plastic toys, plastic bottles and caps, plastic t.v.s, any plastic which falls between categories 1 and 7 are recyclable. Plastics 1 through 7 categories can be recycled back into crude oil. That is a fact... a new fact which our local governing agencies do not, cannot, or do not want to recognize. Why is that so? Personal agendas, special interest over the common good, we may never know. What everyone can know and verify is that plastics are recyclable and to prove it, get on the Internet and log onto plastofuel.com and read about it. It has been offered to the County of Kauai by Western Renewable Energy and nobody, no agency, no official have shown an interest in pursuing this reality at the expense of our island residents... not to mention the four (4) creatures being harmed by human irresponsibilities... like the State's HI-5 plastic bottles program... imagine if plastics of all kinds could be turned in for a refund, can the naysayers agree that plas to fuel may be a good idea... after all, it truly fits into this sustainable theme which might even clean up our oceans and land masses. Check it out, aloha, John Hoff. It is interesting what John says, it is another concept, you know, you may disagree with what he is saying, but, you know, obviously, it is a recyclable thing whether you want to turn that plastic back into oil, but, you know, I presume it is just like an automobile. You can say that automobiles kill, you are not going to do away with automobiles, it is the person behind the wheel of that thing, and I think John is just trying to make that point. So, anyway, this is his testimony and you have mine. Thank you Kaipo. Chair Asing: Thank you. With that, is there anyone else who wants to speak on this item? Mr. Nakamura: We have a registered speaker Mr. Chair. Chair Asing: Yes. Mr. Nakamura: Lauren Zirbel. Chair Asing: Lauren. • • COUNCIL MEETING - 6 - October 7, 2009 LAUREN ZIRBEL: Hi, my name is Lauren Zirbel. I am from the Hawaii Food Industry Association. I think you guys all pretty much know where we stand on this bill, so, yea, I just wanted to reiterate some of the points that... the amendments still exclude the oxo biodegradable bags which, obviously, I am not a scientist, but there are a lot of ASTM standards that those bags meet, and they are a lot cheaper than the compostable and paper bags which are more voluminous and harder to ship here. So I guess we would hope that maybe those would be considered. Also, in (inaudible) I guess the cost would just be passed onto the consumer, and that is all that we can do at this point. Thank you for the opportunity to provide the testimony. Do you guys have any questions about my eight (8) page testimony, you can feel free to ask. Chair Asing: Thank you. Mr. Bynum: Thank you. Chair Asing: Is there anyone else? JAMES GERARD TRUJILLO: Good morning, James Gerard Trujillo for the record. I am here really to bear witness to what I hope is the passing of this bill. The amendments haven't had time to really go over following the story from the last meeting when it was deferred. It did seem that there was a good effort on Councilmember Bynum to contact the County Attorney to have a review... it does seem that there is work in the process to move forward on this and this is what I would really like to see. I think we all know that the ability for government to regulate to incentivize to be able to pass something along these lines that encourage people to do the right thing and the right thing is for us to eliminate plastic because of its... 1) use of fossil fuels for its development when fossil fuel should be used for better things as well as our ability to... as Mr. Mickens pointed out, sometimes not be able to put items in the right place, so all we need to do is eliminate and be responsible users, and have government be able to... in the right place at the right time make it convenient for us to be able to properly dispose of these things that have no longer served its purpose. So I strongly encourage you to move forward and pass this piece of legislation and join the other municipalities across the globe that are... as Pastor Galiza mentioned so earlier that we have faith in our government leaders to do the right thing, and that we have a desire for us to see this world continue to be healthy, to prosper, and to serve and be of service. Thank you. Chair Asing: Thank you. Next speaker please? BRAD PARSONS: Brad Parsons for the record and looking real quickly over this with the amendments, it looks like it is a bill that I would still support. I like what was done with the definition on biodegradable. It has been simplified and not put to a standard that would be hard maybe locally here to abide, but it is effectively the same standard. I think that was all done. I see some changes here related to the County Engineer and explicitly stating how he would... COUNCIL MEETING ~ - 7 - • October 7 2009 might enforce this. What I had a question about is hard to tell by the bracketing, but it looks like the 18 months for hardship which, to me, would have been difficult to determine in enforcing. It looks like that has been bracketed out and the effective date of this ordinance has been extended by about six (6) months, and I was just wondering if that is the case. Chair Asing: Yes. Mr. Parsons: So there is no longer that 18 month hardship thing and this basically just gives another half year to go into effect. Mr. Bynum: For a total of about 15 months. Mr. Parsons: Okay. Chair Asing: The rationale behind that going through the County Attorney's Office was to tie it into Maui. Maui is the same thing. Maui's plastic bill ordinance is 2011. Mr. Parsons: Yea, I was aware of that. To me it seems like it is a simpler bill and maybe it did help to... worked it up a little bit over the past couple of weeks. Chair Asing: Thank you. Is there anyone else? If not, what I would like to do is call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: We have the main motion on the floor now as amended. Further discussion? Councilmember Bynum? I am sorry, Councilmember Furfaro. Mr. Furfaro: First of all, just to clear the record a little bit. There was some testimony indicating that no one from the Council had made contact with the Western Energy. I just want to make note that back in January, some of us here on the Council did talk to them and the possibility of them making a February presentation. Their travel schedule changed that did not get fit in. Secondly, on a procedural thing, I want to personally thank the Chairman for working with the County Attorney on these changes. I know Mr. Bynum, in fact, is the Chair of this Committee and has had other dialogue with the County Attorney, but just from a procedural note, I want to give credit where credit is due to the Chair and that this amendment is being introduced by Mr. Bynum because the Chairman of the Council when we are at the full Council level cannot introduce this amendment. As Mr. Bynum couldn't introduce it when he was the Chair of the Committee, so I will be supporting full heartedly these amendments and the new bill itself, but I just COUNCIL MEETING • - 8 - ~ October 7, 2009 wanted to point that out that there was a real team effort by committee to get this done. Thank you Mr. Chair. Chair Asing: Thank you. Any further discussion? Yes, go ahead. Councilmember Kawahara? Ms. Kawahara: The entire bill, right? Chair Asing: Yes. Ms. Kawahara: Okay. I too wanted to thank the County Attorney and specifically Mike Dahilig for their careful reading of this bill. It is an important bill and having it being read over again is not something that would hurt it, again, because it is an important bill. I also wanted to thank and recognize the Mayor and our County Engineer and Allison Fraley with the recycling division for their strong testimony in support of this bill and their guidance in crafting portions of it related to their offices. I will be voting probably in support of this bill. Its purpose and intent is to reduce plastic bags and their use on the island. The reasons are clear as we have heard testimony... overwhelming testimony in support of this bill from people around the island and several retailers. We had testimony submitted about plastic bags and detrimental effects to our aquatic wildlife when bags blow in to the ocean. We also had a professional aquatic biologist and watershed council member come testify in support of this bill. I have heard and considered the testimony in oppositions to the bill especially about paper bags and the extra energy it uses to take it, however, this is a plastic bag reduction bill, and it does encourage the use of reusable bags and recyclable bags, not paper bags. I agree that we do need more education and more recycling as these opponents say, however, education can only go so far, it doesn't raise awareness, but it does not change behavior. We cannot recycle our way out of where we are now in this environmental crisis. This is a bill that we are taking... in this bill we are taking a step in the right direction, taking responsibility for our stewardship of our special and unique environment here and the waters that surround it and run through it. So, again, I will be supporting this bill strongly and I thank the Chair of the Council and the Chair of this committee for bringing it forward and for Councilmember Bynum for bringing it forward. Thank you. Chair Asing: Further discussion? Councilmember Bynum? Mr. Bynum: Yea, I just... obviously, I am going to support the bill, the changes that were made today don't make substantive changes to the basic goals of the bill, and I want to reiterate that the basic goal is to encourage reusable bags. The argument that any bag that is disposable is not the best alternative is an accurate argument. I thought... in some ways we can see this as a transition time where some disposable bags will be available that are better alternatives than plastic in my opinion, but the real goal is to not take disposables away from your retail store, but to do like Costco manage it or to bring your own reusable bags. This - . COUNCIL MEETING - 9 - October 7, 2009 is a change that my family has made and at first it is difficult, you forget. I said if I forgot to bring the bags, then I have to buy some new ones because they are only 99 cents at Big Save for instance, and it feels great to take my five (5) or six (6) reusable bags, put them on the conveyor belt, the checkers know exactly what to do with them, and some of the stores give you a discount for not using the plastic bags. In this bill, the alternatives are compostable and recyclable bags that are made from biological products like corn or paper neither of which are a great alternative, but they, I think, will serve a purpose for an interim period as all learn to bring reusable bags and not do disposables. And I would like to thank all of the Councilmembers who contributed their mana`o to the final product of this bill and hopefully it will pass in a few minutes. Chair Asing: Any further discussion? Councilmember Chang? Mr. Chang: Thank you Chair. I'd like to say that I will be supporting this bill and I believe public education is going to be huge as we move forward, and I think we have a lot of time to get education out there. And the reason why I say that is that I have been going to various grocery stores, and of interest, I've asked the check out clerk what do they feel about the reduction of plastic bags or what was their opinion with the bill itself, and what was shocking to myself was that a lot of people didn't know that this bill existed. So consequently, you know, it is interesting because when they are now needing to place the different items within these checkout bags... you've got things like our bread or eggs or breakable things, so I think that is going to be a key which is easy, but, again, I think what I was most amazed was that there are people out there that doesn't even realize that we are discussing banning plastic bags, so I think education is one thing. Another thing I'd like to just comment on is by far, by far, by far, three (3) to four (4) to five (5) to six (6) to one (1) easily, we received so much testimony in favor of banning plastics here on our island of Kauai, and I would just like to let the general public know for myself personally, I would like to see people... when we have comments about plastic bags or flying here or flying there, and we see it falling out o£ flying out of trucks and we see it on the side of the road, I really want to challenge the community... when you are driving by and when you see this, it is just as easy as safely, hopefully, pulling on the side of the road or pulling along side of the beach, and picking up this discarded plastics and trash in general. And I would like to challenge the community out there to participate in beach cleanups or roadside cleanups, and litter bug cleanups, and organize different groups because if there is any problem about organizing cleanups, I would be happy to help organize either a beach or a roadside cleanup, but I think it is really important that we all put our money where our mouth is and when we want to do a reduction, and there is visible opala on the side of the road, I would hope that we can all take advantage and organize, so we can cleanup everything, cleanup this entire island because that is what we love and that is why I believe that this bill is so heavily supported. Lastly, the County bought 25,000 bags, reusable cloth bags, and I would really like to encourage, you know, finding out how we are going to do the disbursements of the bags, but I do also want to comment that many of us sitting in this room have 1, 2, COUNCIL MEETING ~ - 10 - • October 7, 2009 3, 4, 5, 6, or a lot of collector items cloth bags, but I do want to make sure that these bags are available for our visitors because the visitor industry and especially the timeshare industry when they go out, they are unprepared, and I think a lot of these visitors would be happy to be able to get one of our County bags that they can either reuse, use for souvenir, or return it back to the front desk or the bellman, and people can always reuse that bag, so I just want to make sure that we don't forget the visitors because when they come here, they are adding a lot to our economy. I mean they are the ones that may be blindsided as we move along, but, you know, I would like to commend Councilmembers Kawahara and Bynum for bringing this bill forth, and of course would like to thank the Chair for getting clarification with the County Attorneys. I think this was a incredible collaborative effort and Councilmember Kawakami that is not here, and I would like to speak on words of wisdom that I picked up on him. I just wanted to remind the community when things are deferred... I guess I... what I would like to say excluding names, but I learned a lot from... you are Councilmember Who? Excluding names, what I would like to just let the public know is please bear with all of us here as lawmakers because when an item or a bill gets deferred, it is not like we are not consistently working on that, so whenever you hear of a deferral, it is not that we are working on, we are just trying to get everything pono and correct lawfully, so thank you very much Council Chair. Chair Asing: Thank you. Mr. Chang: Mahalo. Chair Asing: Any further discussion? Councilmember Kaneshiro? Mr. Kaneshiro: Thank you Mr. Chair. You know, I see this as a real good bill. I want to congratulate each and everyone of you for working real hard on this and having the attorneys really look into the bill to make sure that you do have a good bill out there. Unfortunately, I am not able to support this bill. My belief is that promotion of reducing and reusing and recycling is a much more effective way than passing laws. And basically, you know, I feel that if you listen to everyone that spoke today, everyone is saying how... as an example, that they are doing, we are reusing it, we are recycling. Igo to the market and this is what I do, then I think it is best for us, as government, to really, you know, make responsible public policies to do that rather than to pass laws to... or have government intervention in the market place. I don't like government intervention in the market place basically. I like the law and all that, but I can't support it because of that principle. You know, basically, you know, do the same thing, I recycle bags... as a hunter, diver, a guy that likes the beach... if I see plastic bags on the side or on the beach, I pick it up. If I see it on the road... some of you have often seen me on Koloa Road picking up plastic bags that are here and there, and I think if we have good government policy and encourage people to do that, it is a better means than passing laws... that, in a long run, you know, to intervene with the market place, . COUNCIL MEETING • - 11 - ~ October 7, 2009 and I know currently on Kauai, it is all about pono, it is all about us helping each other to do that, and if we as government officials can be out there showing that this is what we are doing to... I think we are really encouraging the public to see that, you know, that we are all trying to be (inaudible)... we love this island and we all want to put the island, you know, from plastic being disposed on the beach and so forth, on the parks, and the side of the highway. So it is a principle with me and basically I don't like making laws that affect, like I said, you know, the market place because the end results is that it is all going to cost every single one of us in our pocketbook. Things are going to get more expensive because we ban this, we ban that, and I think, you know, if we... we know the County has been encouraging recycling. We see some of the recycling going on at large retailers and supermarkets, and we also have plastic bag recycling at the Kauai Resource Center, and I think that, you know, if we continue to encourage them to do that, will be a better means of reducing plastics, you know, (inaudible) the environment in places that are not really acceptable. So, again, it is a principle, but I want to really thank my colleagues for working hard on the bill. I know I have had some input on the bill too, to make a good bill, and, you know, I would have really liked to see a bill probably with a sunset date so, again, we can look at it perhaps say, you know, this is working or this is not working, and let us focus on some real good recycling efforts. So with that, thank you Mr. Chair and thank you members. Chair Asing: Wow. The reason I say wow is that I have two (2) wows. One is the testimony that Glenn Mickens read and this testimony is from John Hoff and it is the testimony, Glenn, that you read, and the reason I say, wow, is I normally don't agree with John Hoff. I think 99.99% of the time, I disagree with John Hoff, but here is one time that I am saying, wow, this guy has something else that we should think about, and that was partially covered by Councilmember Kaneshiro. And I was also going to comment on that. And let me just read it to you again. It is repeatedly claimed that plastics are non-recyclable and that they are. killing our earth's companions around the world. It is not the plastic bags killing our animal cohabitants on earth, it is the ignorance of littering individuals that will not recognize the fact that plastic bags, plastic toys, plastic bottles and caps, plastic t.v.'s, computers, any plastic which fall between categories 1 through 7 are recyclable, so it is an educational problem together with enforcement, and I didn't know that Glenn was going to read this and Mr. Hoff was going to say this, but I was going to say that the problem is not the plastic bag, the problem is people. It is a people problem and, well, with that, it is education and enforcement, so that is the problem. And I have to agree with Councilmember Kaneshiro too. I have some difficulty with the bill. You know, I did look at the proposals, the amendments... I had one comment on the amendments and that is the first amendment, and I will read it to you. It was deleted. The deletion from the specific European standard of biodegradable bags and providing Department of Public Works to identify appropriately certified bags meeting the definition of biodegradable bags. So here is what the amendment says. Biodegradable bag means a bag that: 1) contains no polymers derived from fossil fuels, and 2) is intended for single use and will decompose in a natural setting at the rate comparable to other biodegradable - . COUNCIL MEETING • - 12 - • October 7, 2009 materials such as, paper, leaves, and food waste. The Department of Public Works and this is the big one for me. The Department of Public Works shall promulgate rules identifying bags meeting this definition. These rules shall also set forth an application process whereby a retail establishment can obtain determination whether the bag is biodegradable... abiodegradable bag. So we have Public Works Department now charged with this huge problem of being the Police Officer and deciding what is acceptable and not acceptable. That is a huge responsibility and I am not sure how they are going to take it on. They are going to hire consultants to make a determination on what is, in fact, biodegradable, and what can be allowed, and what cannot be allowed, so it is huge. I know that it will pass. I will not be supporting it for the reasons that I expressed, but we will move forward. So with that, any further discussion? If not, roll call. The meeting was called back to order, and proceeded as follows: The motion to approve Bill No. 2321, Draft 1 as amended was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kawahara TOTAL - 4, AGAINST ADOPTION: Kaneshiro, Asing TOTAL - 2, RECUSED & NOT VOTING: Kawakami TOTAL - 1. Mr. Nakamura: Four (4) ayes, two (2) nos, one (1) recused Mr. Chair. Chair Asing: Yes. With that... Mr. Nakamura: With that Mr. Chair, we can go back to page 2 of the Council's agenda under Bill for first reading. I believe staff distributed the communication from the Planning Director requesting withdrawal of this bill. Mr. Bynum: Moved to receive. Chair Asing: Do you want to read that bill? Mr. Nakamura: This is under bills for first reading Mr. Chair. Proposed Draft Bill No. 2330. Proposed Draft Bill No. 2330 - A BILL FOR AN ORDINANCE AMENDING ZONING CONDITIONS IN ORDINANCE NO. PM-229-91, RELATING TO ZONING DESIGNATION IN KILAUEA, KAUAI (County of Kauai, Applicant): Chair Asing: Thank you. COUNCIL MEETING ~ - 13 - ~ October 7, 2009 Mr. Bynum moved to receive Proposed Draft Bill No. 2330 for the record, seconded by Mr. Chang. Chair Asing: I am sorry. My apologies. Discussion? Mr. Furfaro: I want to point this out that this request for withdrawal... we might all have copies of the letter here, but I also want to point out that the (inaudible)... that we will have to defer Bills 2328, 2329... I want to make sure that the Planning Department takes responsibility for notifying the landowner because this is a down zone, and this is a technical request for withdrawal as this is going from light industrial down to ag and open, .but, you know, we need to find ourselves and perhaps in the near future I could sit down with the attorney as this is in my Committee with the Planning Department, and make sure that we have some continuity on the items in the bills that come over as they reflect to zoning maps. This is technicality until such time that it gets resubmitted. Thank you for letting me say that Mr. Chair. Chair Asing: Thank you. Any further discussion? If not, all those in favor say aye. The motion to receive Proposed Draft Bill No. 2330 for the record was then put, and unanimously carried. Chair Asing: Can we have the County Attorney up please? There being no objections, the rules were suspended. ALFRED B. CASTILLO, JR., COUNTY ATTORNEY: Good morning Chair, good morning Councilmembers, aloha. Mr. Bynum: Aloha. Mr. Castillo: Okay, so are we going on ES-404 and ES-405? Chair Asing: Yes. Mr. Castillo: Okay, so I am requesting that we go into executive session. ES-404 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 case of County of Kauai vs. Carvalho Enterprises, et al., Civil No. RC-09-1-0558 (District Court of the Fifth Circuit) and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, - ~ . COUNCIL MEETING - 14 - October 7, 2009 immunities and/or liabilities of the Council and the County as they relate to this agenda item. Mr. Castillo: Should I read the second one? Chair Asing: Yes please. ES-405 Pursuant to Haw. Rev. Stat. sections 92-4, 92-5(a)(4) and (8), and Kauai County Charter section 3.07(E), the Office of the County Attorney requests an executive session with the Council to provide the Council a briefing, update, and to request authority relating to the expansion of the Kekaha Landfill, adjoining areas, 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. Chair Asing: With that, can I have a motion to move into executive session. Mr. Furfaro moved to go into executive session on item ES-404 and ES-405, seconded by Mr. Chang, and unanimously carried. There being no objections, the Chair called for a recess at 10:17 a.m. The meeting was called back to order at 12:01 p.m. ADJOURNMENT: There being no further business, the meeting was adjourned at 12:01 p.m. Respectfully submitted, PETER A. NAKAMURA County Clerk /iki • • SPECIAL COUNCIL MEETING OCTOBER 14, 2009 The Special Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, Historic County Building, 4396 Rice Street, Room 201, Lihu`e, Kauai, on Wednesday, October 14, 2009 at 9:19 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Derek S. K. Kawakami Honorable Bill "Kaipo" Asing, Council Chair EXCUSED: Honorable Dickie Chang Honorable Lani T. Kawahara APPROVAL OF AGENDA: Mr. Furfaro moved for approval of the agenda as circulated, seconded by Mr. Kawakami, and unanimously carried. Chair Asing: Can I have the County Attorney up please? There being no objections, the rules were suspended. MICHAEL DAHILIG, DEPUTY COUNTY ATTORNEY: Good morning Chair and members of the Council. Michael Dahilig, Deputy County Attorney. ES-406 Pursuant to Haw. Rev. Stat. sections 92-4, 92-5(a)(4) and (8), and Kauai County Charter section 3.07(E), the Office of the County Attorney requests an executive session with the Council to provide the Council a briefing, update, and to request authority relating to the expansion of the Kekaha Landfill, adjoining areas, 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. Chair Asing: With that, I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Mr. Furfaro moved to go into executive session on ES-406, seconded by Mr. Bynum, and unanimously. There being no objections, the Chair called for a recess at 9:20 a.m. The meeting M SPECIAL COUNCIL M~TING -2- October 14, 2009 was called back to order at 9:46 a.m., and proceeded as follows: ADJOURNMENT: There being no further business, the meeting was adjourned at 9:46 a.m. Respectfully submitted, PETER A. NAKAMURA County Clerk • COUNCIL MEETING October 21, 2009 The Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, Historic County Building, 4396 Rice Street, Room 201, Lihu`e, Kauai, on Wednesday, October 21, 2009 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 APPROVAL OF AGENDA: Mr. Furfaro moved for approval of the agenda as circulated, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please. MINUTES of the following,meetings of the Council: Public Hearing of September 9, 2009 re: Bill No. 2298 Council Meeting of September 23, 2009 Special Council Meeting of September 30, 2009 Council Meeting of October 7, 2009 Public Hearing of October 7, 2009 re: Bills Nos. 2322, 2323, 2324, 2325, 2326, and 2327 Mr. Furfaro moved for approval of the minutes as circulated, seconded by Mr. Chang, and unanimously carried. COMMUNICATIONS: Chair Asing: Next item please. PETER A. NAKAMUR.A, COUNTY CLERK: The first matters on page 1 are communications for receipt: on page 1 communications C 2009-322, C 2009-323, C 2009-324, and on page 2 of the Council's agenda, communication C 2009-235, C 2009-236...oh, 326, I'm sorry, 326, communication C 2009-327, and communication C 2009-328. C 2009-322 Communication (09/15/2009) from Councilmember Tim Bynum, transmitting for Council review and consideration, a proposal to establish a Rules Sub-Committee to the Committee of the Whole to review and propose amendments to the Rules of the County Council of the County of Kauai: Mr. Kawakami moved to receive C 2009-322 for the record, seconded by Mr. Furfaro, and unanimously carried. C 2009-323 Communication (09/21/2009) from the Chief of the Engineering Division, Department of Public Works, transmitting for Council approval, resolutions to establish crosswalks, stops, stop lines, yields, speed limits, school bus COUNCIL MEETING - 2 - • October 21, 2009 stops and public transportation bus stops within the ~kake Subdivision Phases I and II: Mr. Kawakami moved to receive C 2009-323 for the record, seconded by Mr. Furfaro, and unanimously carried. C 2009-324 Communication (09/30/2009) from the Chief of the Building Division, Department of Public Works, transmitting for Council consideration, amendments to Article 6, Energy Conservation, Chapter 12 entitled "Building Code" of the Kauai County Code 1987, as amended: Mr. Kawakami moved to receive C 2009-324 for the record, seconded by Mr. Furfaro, and unanimously carried. C 2009-325 Communication (10/09/2009) from the Director of Planning, transmitting for Council consideration, a proposed bill revising the Surplus and Appropriations estimated in the General Fund and appropriating $150,000 for the Kapa`a-Wailua Development Plan (East Kauai Community Development Plan): Mr. Kawakami moved to receive C 2009-325 for the record, seconded by Mr. Furfaro, and unanimously carried. C 2009-326 Communication (10/09/2009) from the Director of Finance, transmitting for Council consideration, a proposed draft bill amending Ordinance No. B-2009-691, relating to the Fiscal Year 2009-2010 Capital Budget and transferring $230,000 from the Kapa`a New Fire Station to the Pi`ikoi Building Design Project for architectural and engineering services: Mr. Kawakami moved to receive C 2009-326 for the record, seconded by Mr. Furfaro, and unanimously carried. C 2009-327 Communication (10/09/2009) from the Chief of Wastewater, Department of Public Works, transmitting for Council consideration, a resolution authorizing the Mayor or the Director of Finance of the County of Kauai to enter into an intergovernmental agreement with the State of Hawaii, Department of Health, for a loan from the American Recovery and Reinvestment Act of 2009 portion of the State Water Pollution Control Revolving Fund for the Waimea Wastewater Treatment Plant Expansion, Phase I, Project No, C150047-04: Mr. Kawakami moved to receive C 2009-327 for the record, seconded by Mr. Furfaro, and unanimously carried. C 2009-328 Communication (10/13/2009) from the Planning Director, transmitting for Council information, in accordance with Section 11-3.1 of the Kauai County Code 1987, as amended, the Affidavit as to the mailing and delivery of the Notice to area residents relating to Bill No. 2328 (State Land Use Boundary Amendment) and Bill No. 2329 (General Plan Designation Amendment), for County of Kauai, Applicant: County of Kauai, Tax Map Key: 5-2-017:028, Kilauea, Kauai, Hawaii: Mr. Kawakami moved to receive C 2009-328 for the record, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matter for approval is communication C 2009-329. C 2009-329 Communication (09/25/2009) from the Director of Parks & Recreation, requesting Council approval to accept two (2) replacement laser finished plaques donated by Patrick and Jocelyn Contrades valued at $3,000 for the Kauai COUNCIL MEETING - 3 - October 21, 2009 Veterans Cemetery: Mr. Furfaro moved to approve C 2009-329 with the appropriate thank-you letter to be sent, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matter for receipt is communication C 2009-330. C 2009-330 Communication (10/15/2009) from the Council Chair, transmitting for Council review and consideration, an amendment to the Rules of the County Council of the County of Kauai relating to travel requests: Mr. Kaneshiro moved to receive C 2009-330 for the record, seconded by Mr. Kawakami, and unanimously carried. Mr. Nakamura: At the bottom of page 2, the next matter for approval is a LEGAL DOCUMENT, communication C 2009-331. LEGAL DOCUMENT: C 2009-331 Communication (09/25/2009) from the Executive on Transportation, Transportation Agency, requesting Council approval to indemnify the U.S. Wildlife Service Kauai National Wildlife Refuge Complex (Haraguchi Farm) to establish a bus stop on their property. •Right-of--Entry Agreement by and between the U.S. Wildlife Service Kauai National Wildlife Refuge Complex and the County of Kauai for a bus stop on Haraguchi Farm property. Mr. Furfaro moved to approve C 2009-331, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item, please. Mr. Nakamura: Next matter is at the top of page 3 are claims. CLAIMS: C 2009-332 Communication (09/25/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Yvonne D. Fisher for personal injury, as well as for credit card interest, pain and suffering, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-332 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Kawakami, and unanimously carried. C 2009-333 Communication (09/30/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Joseph Bonachita for damage to his vehicle, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-333 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Kawakami, and unanimously carried. Chair Asing: Next item please. Mr. Nakamura: Next matters for approval are Committee reports. COUNCIL MEETING ~ - 4 - ~ October 21, 2009~ COMMITTEE REPORTS: BUDGET & FINANCE CONIlVIITTEE REPORT: A report (No. CR-B&F 2009-21) submitted by the Budget & Finance Committee, recommending that the following be approved on second and final reading: "Bill No. 2323 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 THROUGH JUNE 30, 2010, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($132,000 - Moana Kai (Fujii Shoreline Design/Permit)," Mr. Kawakami moved for approval of the report, seconded by Mr. Furfaro, and unanimously carried. (See later for Bill No. 2323) Chair Asing: Next item please. Mr. Nakamura: Next committee reports for approval from your Committee on Planning: Committee Report CR-PL 2009-07, CR-PL 2009-08, CR-PL 2009-09, CR-PL 2009-10, CR-PL 2009-11, and CR-PL 2009-12. A report (No. CR-PL 2009-07) submitted by the Planning Committee, recommending that the following be approved as amended on second and final reading: "Bill No. 2326 A BILL FOR AN ORDINANCE AMENDING ZONING CONDITIONS IN ORDINANCE NO. PM-2006-383, RELATING TO ZONING DESIGNATION IN NAWILIWILI, KAUAI (MORI Golf (Kaua`i), LLC., Applicant)," Mr. Furfaro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2326, Draft 1) A report (No. CR-PL 2009-08) submitted by the Planning Committee recommending that the following be approved on second and final reading: "Bill No. 2324 A BILL FOR AN ORDINANCE AMENDING STATE LAND USE DISTRICT BOUNDARY IN NAWILIWILI, KAUAI (MORI Golf (Kaua`i) LLC., Applicant)," Mr. Furfaro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2324) A report (No. CR-PL 2009-09) submitted by the Planning Committee recommending that the following be approved on second and final reading: "Bill No. 2325 A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. PM-2006-382,RELATING TO GENERAL PLAN DESIGNATION IN NAWILIWILI, KAUAI (MORI Golf (Kaua`i), LLC., Applicant)," • i COUNCIL MEETING - 5 - October 21, 2009 Mr. Furfaro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2325) A report (No. CR-PL 2009-10) submitted by the Planning Committee recommending that the following be approved on second and final reading: "Bill No. 2327 A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. PM-2006_384, RELATING TO VISITOR DESTINATION AREA DESIGNATION IN NAWILIWILI, KAUAI (MORI Golf (Kaua`i), LLC., Applicant)," Mr. Furfaro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2327) A report (No. CR-PL 2009-11) submitted by the Planning Committee recommending that the following be approved on second and final reading: "Bill No. 2322 A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (ADU Building Permit deadline extension for non-residentially zoned land)," Mr. Furfaro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2322) A report (No. CR-PL 2009-12) submitted by the Planning Committee recommending that the following be approved as amended on second and final reading: "Bill No. 2319 A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Amending Article 27, Chapter 8, Kauai County Code 1987, relating to Shoreline Setbacks and Coastal Protection)," Mr. Furfaro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2319, Draft 1). Chair Asing: Next item please. Mr. Nakamura: The next matter on page 4 of the Council's agenda are resolutions. The first resolution is Resolution No. 2009-55. RESOLUTIONS: Resolution No. 2009-55, RESOLUTION TO ESTABLISH A RULES SUB-COMMITTEE TO COMMITTEE OF THE WHOLE TO REVIEW AND PROPOSE AMENDMENTS TO THE RULES OF THE COUNTY COUNCIL OF THE COUNTY OF KAUAI: Mr. Kawakami moved to receive Resolution No. 2009-55 for the record, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Councilmember Bynum. Mr. Bynum: I need some clarification. I prefer we move to defer both of the rules resolutions to give some time for working on them. COUNCIL MEETING ~ - 6 - • October 21, 2009 Chair Asing: The motion is to receive. Mr. Bynum: Right, so I...this is discussion. I'd prefer that the two resolutions that are on today's agenda related to rules be deferred for two weeks. Chair Asing: I...any further discussion? Ms. Kawahara: I would prefer that also to allow us to discuss it...and to discuss it and go over it and be able to work with our other councilmembers. Chair Asing: Okay. Ms. Kawahara: Because we're all seeing it for the first time, which is appropriate, but I think it would be appropriate for us to be able to address it together. Chair Asing: Okay, any further... Ms. Kawahara: At a future date. Chair Asing: Any further discussion? Councilmember Kawakami. Mr. Kawakami: Yeah, I mean with...with all due respect, I mean I...I just...I feel that we've spent enough time on this item. I mean, we got some big tasks and you know, we're working together, and the rules, you know, to be blunt, it's not rocket science, you know. And I don't know why we have to forma sub- committee to review our rules. I mean, i£ ..if we see a problem with the rules, what's...what's the issue? We just...I mean look, later on today there's a reso to change or amend one of the rules. You know to set asub-committee of two, I mean you're not violating the Sunshine Law if you guys want to work on it together. You know, I think that would be within our legal parameters. I just feel that there's bigger issues that we need to attend to and so I'm not in favor of deferring it. I'm just in favor of receiving it. Let's put this behind us and move forward. Chair Asing: Thank you. Any further discussion? Councilmember Kaneshiro. Mr. Kaneshiro: Thank you, Mr. Chair. And you know, I applaud Mr. Bynum and also Mr. Furfaro, you know, councilmembers who perhaps take a look at it and so forth. But setting up a resolution for a committee, to me, is not the way to do it, you know. And again, I know how busy we are. There's many other stuffs that are coming up on the agenda with high priorities. Now if you look at it, when you set up a committee as such, what that involves. Number one, it involves proper notice. It involves proper notice to the public before, you know, even getting into looking at the sub-committee and making or having discussions on this. And for me, you know, it's a time process. I...I'm not objecting to it, to...to do that process, to...to have, you know public input if need be, but at the same time there's a process that needs to be followed. Once you set up a committee as such, it's a committee that needs to follow proper notice. It's a committee that would have to give proper notification and it's a committee that would have to have an open meeting to discuss our rules, our Council rules, and you know, to do that, we can...you can simply do it right now. Tim and Mr. Furfaro, Mr. Bynum and • COUNCIL MEETING - 7 - October 21, 2009 Mr. Furfaro can do this tomorrow without a resolution setting this procedure up. The only problem I face is that if you do set this up, again you know, it's very time consuming for staff, proper notice gotta be given out, all this other stuff involved when both of you could meet and start meeting, and we will not violate the Sunshine Law. So, it...it's a simpler process and I...I agree with Mr. Kawakami that there's many other things on the agenda that are real important that we gotta start working on and moving on, and...and I just can't support this as put forth before this body today. Chair Asing: Thank you. Any further discussion? Councilmember. Ms. Kawahara: I would say to...to my for...my fellow councilmembers, the reason why you should defer it is because...because it has been brought up and two of your co...your colleagues have asked for it at least. And in the past you've supported the fact that there might be a need to go and look at the rules, and it came up at our inauguration. I believe that we're all equal here on this table and that two of us are asking our fellow colleagues, at least I am asking for us to be able to defer this and really do address what two...what I believe is just as important as the work we do and are doing right now. I guess if we don't do this, I would go on the record saying that this has been requested from your co- councilmembers and your colleagues to be done and that two of us at least find that it's important enough to address and the recognition that...that we are asking for it and that, you know, denying it is your right and not caring about it...or not caring about it, but saying that we don't need to do it is your right. To address the fact that somehow it would be difficult to provide notice and proper notice, that is how we do...that's how it's done and it's not a difficult process to give proper notice, nor is it a difficult process to have open meetings on something that councilmembers find important...your fellow councilmembers find important. If you find it not important, that's definitely your position, but it's...it's a request that fellow councilmembers have made and that there is ~ no difficulty in having meetings. There is no difficulty in properly notifying people. So... Chair Asing: Thank you. Ms. Kawahara: Thank you. Chair Asing: Councilmember... Mr. Kaneshiro: You know, I don't believe I've heard anybody say it's not important. Ms. Kawahara: Oh yes, oh, that it wasn't equivalent maybe to what.. . Mr. Kaneshiro: I...I have the floor now, if I could continue, Mr. Chair... Chair Asing: Go ahead. Mr. Kaneshiro: ...since I do have the floor. Chair Asing: Go ahead. COUNCIL MEETING • - 8 - • October 21, 2009 Mr. Kaneshiro: I don't believe I heard that. I think, you know, what we're saying is that, you know, there's a process we can use, and the process I'm suggesting is that not form asub-committee by resolution. It's that simple. All I'm trying to say is that...and...and Iapplaud Mr. Bynum and Mr. Furfaro for wanting to take that part, to look at it, you know, and...and spend their time to do that because like I said there's so many other important matters that are before us that we need to act on. And, you know, for me, especially with the time that Mr. Furfaro will commit to this, I believe both of them can do an excellent job in preparing something and then bringing something forth to the Council or perhaps to the Committee and then have open discussion on this throughout the process. Chair Asing: Thank you. Any further discussion? Go ahead, Councilmember Kawakami. Mr. Kawakami: Thank you, Mr. Chair, and you know, I just want to reiterate that, you know, this hasn't stopped anybody from looking at the rules and seeing if changes need to be made. And you know, quite frankly, I'm just getting tired of every time there's a disagreement it turns into grandstanding and just...I mean it's petty and you know, this is the democratic process, yeah. We talk about the democratic process, we put it on the floor and it faces its test and the majority rules. But to grandstand and...and to...you know what I mean, imply things that are not true, you know to say that, you know, somebody has implied that this is not important, I mean...it's...you know, it...it doesn't foster any kind of working relationship and that's what we're here for. That's what the people have elected us for and this does not stop anybody from looking at the rules and I...I would suggest everybody take a look at the rules in the first place. I mean because there are simple things that we've overlooked that are clearly in the rules, so maybe, you know, just starting from looking at the rules is a good place for each and every one of us. But, you know, all I'm saying is to create asub-committee, yeah, I don't, yeah, personally feel it's necessary. I think any one of us can look at the rules, we can review it, we can suggest changes, and that's...that's the point. It's a difference of opinion. It's not to say that what the proposed resolution is is not important or it has no merit, it's just my personal opinion that, you know, we have other things and I don't see a need for it. Thank you. Chair Asing: Thank you. Any further discussion? Councilmember Furfaro. Mr. Furfaro: Yes, thank you. First of all, I want to make sure we're all clear here. This is not a resolution that I'm the co-author of. I've heard my name mentioned by my two colleagues here. My...my statement at the inaugural was that if we felt we needed to review the rules, I would introduce a resolution later to do just that. I introduced that resolution. It came up on the short end of the votes. That's the democratic process. I just want to make sure because I'm hearing comments here about grandstanding and so forth. What I said was if this body, and that's what we have to remember...the body, if the body chooses to have a sub-committee on rules, I would be willing to serve on the committee. But it's just because I needed to revisit that when it's said, and people don't necessarily have the narrative in front of them, I am willing to serve on a committee if it's formatted. I agree with Mr. Kawakami as well, any one of us could introduce a change in the rules at any time. And I will be speaking for the same reason later when we have another resolution coming up because there is the "rules" and then of course there are the "policies and procedures" that are the guidelines for interpreting the rules. Those are separate documents. So, I just wanted to make sure. I am fine with whatever the body chooses to do. Thank you, Mr. Chair. COUNCIL MEETING ~ - 9 - ~ October 21, 2009 Chair Asing: Thank you. Any further...go ahead, Councilmember Kaneshiro. Mr. Kaneshiro: Thank you, Mr. Chair. And...and basically, you know Mr. Furfaro, I really appreciate your explanation, but I was referring to you as being a participant in volunteering to serve on the committee. So in all respect, you know, I applaud you and Mr. Bynum for taking that step, for...for saying, you know, I'm willing to go there and let's look at it. So, you know, whether it's a committee or not a committee, I believe that your commitment is just...is strong regardless if we have a committee or not and that's what I was applauding both of you for, so. Chair Asing: Thank you. Any further discussion? Councilmember Bynum. Mr. Bynum: This discussion about rules obviously has a history and it goes back, to me, for the last...last term but also to just to deal with more recent history, at our inaugural meeting several citizens got up and questioned certain elements of our rules. Since then other citizens have got up and pointed out what are...I think are fairly minor anomalies in our rules. We had discussion last term about release of County Attorney opinions. That's something that I worked on last term and continue to work on this term. And I proposed some rule changes last term that never made the agenda. So, you know, in that discussion that happened in June and July, there was a proposal for an ad hoc sub-committee made up of citizens to examine our rules to do a comprehensive look, to make recommendations to the Council as to what changes, if any, might be appropriate for our rules. That came to a head on July 22 at a council meeting here, a lengthy council meeting. This body voted 4 to 3 not to create the ad hoc sub-committee. But in the dialog that occurred related to that, the argument, from those opposed to it, was we don't need an ad hoc sub-committee; we can do this work ourselves on the Council; members can work at it. You know there was discussion about specific rules that day that needed some clarification. The...so this resolution that's before us is to do just that, create a sub-committee of two councilmembers that will give a comprehensive look at the rules, make recommendations to the this body that this body will determine yes or no. Now, it's certainly accurate that I hope that that's true now that any member can put any (inaudible)...any resolution or bill on the agenda as that was part of the discussion that happened a few months ago. And if there are four or five rules, that means four or five agenda items over the next few months and I agree with Councilmember Kawakami that we have very critical issues and a lot of work to do. You know, the...but in the July 22 meeting, it was councilmembers who were opposed to the ad hoc committee that suggested that we do it this way. Councilmember...former Councilmember Ron Kouchi testified that day and said that after...who had agreed to serve on that ad hoc committee, agreed...said that after reflection he thought that asub-committee of the Council was the appropriate way. Why do it by sub-committee? There are two primary reasons for me. One is because of just what Daryl said that it's a formal process that engages the public in the discussion. I think the public should be involved in our deliberations and by having a scheduled meeting that allows for public input, then we can hear those concerns that have been expressed by the community and try to incorporate them into any changes. The other one is for...is specifically for efficiency. That if there are four or five or six, you know minor clarifications to the Council rules that are required, we can deal with it all in one council meeting in one discussion after the sub-committee offers their report. These are important issues to me. They are important issues to a number o£..a large number of constituents I've spoke to and I felt like that there was a concurrence that this was the method COUNCIL MEETING ~ - 10 - ~ October 21, 2009 that we would go about to do that. If this body chooses to not have asub-committee and not have the public engaged in that process, I think that we lose something in that...in that process and, you know, it's not going to keep me from wanting to look at the Council rules that a number of which clearly need some, in my opinion, need some modification. I am not pursuing any agenda to make radical changes in our Council rules. I'm not pursuing any agenda to do anything that I think would be controversial and anything...any recommendation that the Council...that a sub- committee came up with would have to be delivered by the...deliberated by the entire body. I would encourage the public to read the Council minutes which are now posted on the County's website from July 22 related to this issue and, you know, my reading of it is that the councilmembers opposed to the ad hoc committee were the ones who suggested a sub-committee of the Council be the (inaudible)...proper method to do this. How does that work out? If there was a sub- committee, Mr. Furfaro and I could take input from other councilmembers, from the public, look at...with staff support. It might mean one sub-committee meeting. That sub-committee meeting or more, but I think it could probably be handled in one meeting. That meeting would be posted; it would be a public meeting. The community members would be able to testify about their concerns and then, you know, presumably we would come up with a recommendation. The alternative as I and I...may be being redundant, the alternative is to entertain four or five or how many necessary resolutions to make rule changes over the next few months or over the next six months. I thought the sub-committee was the appropriate way to do this. I stand by it. I didn't really...you know, I...I expected this to sail through based on the comments that were made on July 22 and, you know, that's why I asked for a deferral initially so we could look...we would have time to discuss amongst ourselves what is the proper way to go without having, you know...I'm a bit disappointed by comments such as grandstanding, and you know I...I feel like the issues that I've tried to pursue this term were important. They had support from the community. I don't feel like this effort to create asub-committee is grandstanding. That's certainly not my intent. So, if the body wants to not vote for this, I'll be disappointed. I requested a deferral, but there doesn't seem to be a...energy for that. But on today's committee...on today's agenda is also a rule change that we will have to discuss later and I would have preferred that we did that in a more systematic way in a rules sub-committee. So, thank you. Chair Asing: Councilmember Kawakami. Mr. Kawakami: Thank you, Mr. Chair. You know, I'm just going to go back. You know, we give the public every opportunity to be involved in the process, but, you know, to me this council rules is an internal policy, yeah. I mean we have the charter, which, you know, we have a Charter Commission. The people are heavily involved. We give them every opportunity to be involved in the process, but you know, these are our...our council rules, and it's almost like taking our internal operation and just...I mean maybe you...maybe some people feel that we should take our internal operations and bring it out to the public, okay? But my...my opinion is different. I think these are...are internal rules. You know, it affects...it has an effect on the way our...our staff will operate and you know, to me when you bring public input into anything, it can be positive, but when it has to deal with the internal operations of how staff will be operating, it could have some unintended consequences, and these...these rules, I mean it...it...it's an internal policy document for how we operate. So it may be a philosophical difference on whether we should be bringing these kind of internal documents out and have anybody be able to come in and you know, provide input as to how we operate. From a business perspective, it doesn't pencil out. You know, we create internal documents made specifically, yeah, for our internal work. And this is not private COUNCIL MEETING ~ - 11 - • October 21, 2009 sector, but you know a lot of it applies. When we're talking about internal rules upon which, you know, sets the parameters and how we operate, it's an internal document. I think we're more than qualified to use our own good judgment on some very simple rules. If it needs to be changed, then quite frankly, you know, I've read the rules, it's been in place for many, many years. You know, I've talked to people. I've never heard that there was such a problem with the rules before, but apparently there is now. So, I just feel it's an internal document. We can take a look at it and...and that's that. Chair Asing: Thank you. Councilmember Furfaro. Mr. Furfaro: Yeah, I...I do want to say that I think some of this discussion should be pau already. You know, I...I'm going to take some comments here that have just been made by...by a few councilmembers. I...I did what I thought was appropriate. I put it out in the early days of reviewing our rules. There were comments made about that being a delay tactic. There were comments made about trust. There were comments made here...what I've learned from this process right here is, hey, I can introduce what I think is important to change in future meetings and we can look at it. I want to again reiterate and I'm going to say this the next time, there are rules and then there are internal policies. Some of these things deal with basically here is the rule and the policies help you give the appropriate interpretations to those rules. I know Mr. Bynum knows I have a correspondence into the county attorney that is a little farther along and predated before his because I still want to pursue getting from the County Attorney an answer about releasing opinions that deal with matters of law, opinions that deal with matter of law. And my letters to that request probably go back to several County Attorneys. That's something we need to work on. There is opportunity here. I believe that if individually we feel we want to submit something to be discussed in a rule change, we all have that opportunity to do it and that's so stated by an item that comes up later on our agenda and I do have two items that I want to resubmit. But for right now, I wish we could move on. This thing has been talked about and we have various opinions. So I just encourage my colleagues, if you want to do something that you feel needs to be addressed, submit a rule change and let the body act on it. Remember, we are a body. We are not... Chair Asing: Thank you. Mr. Furfaro: ...anything more than that. Chair Asing: Councilmember Chang. Mr. Chang: Thank you, Chair. I'd like to agree with Councilmember Furfaro. I think we've had this discussion for quite a bit of a time. I think we have a lot more pressing issues and I would like to see this move on. I do have a couple of concerns. If we're going to be sunshining and have public meetings, which we obviously should, you know, you never know and we may assume that it might take one meeting, it might take two meetings, it then takes three meetings, does that then need to be televised? Are we budgeted to have it televised? If it's not televised, then we'll get, you know, probably accused of not being transparent. So, I believe and I'm very confident that if anyone of our councilmembers, which we're all created equally, had any concern about any rules, I don't think that there's going to be any problem whatsoever getting that concern or that rule on the agenda. So, if it takes four or five agendas to get four or five concerns, then that'll sit well with me. But I...I feel like a...I believe we've had enough discussion and we should move on. Chair Asing: Thank you. COUNCIL MEETING. - 12 - ~ October 21, 2009 Mr. Chang: Thank you. Chair Asing: With that what I'd like to do is take a short recess. We're going to have a short recess. There being no objection, the Chair called for a recess at 9:42 a.m. The meeting was called back to order at 9:53 a.m., and proceeded as follows: Chair Asing: The meeting is called back to order. I believe we had enough discussion. Let's vote on the issue. Councilmember Bynum. Mr. Bynum: I just wanted to make a correction. Earlier I talked about the July 22 meeting. This discussion was actually on August 5, the following week, and if you'll bear with me a second, I want to share at least one section of that discussion. Chair Asing: Councilman Bynum, are you ready? Mr. Bynum: No, I'd like to... Chair Asing: Well, wait a minute. Councilmember Bynum, when you come to these meetings, I expect you to be prepared. You don't come to these meetings to do homework. This is not a homework session. This is a meeting where we get down to business, and we start discussions and make decisions and vote. This is not a homework session. Are you through? Mr. Bynum: Are you? Chair Asing: I'm through. Mr. Bynum: May I have the floor? Chair Asing: Yes, you may. Mr. Bynum: You just called for a recess, Mr. Chair. I requested that the recess be extended for five minutes. The staff said that you would not extend the recess for five minutes. I don't know why you called for the recess. Chair Asing: I gave you 10 minutes. Mr. Bynum: I didn't ask for the recess, you did. Chair Asing: And you didn't do any work during that time? Mr. Bynum: Yeah and I needed five more minutes, and I asked for it. So can I have five minutes? Mr. Kawakami: Mr. Chair, can I call for another five-minute recess, please? Chair Asing: Recess. There being no objection, the meeting was recessed at 9:56 a.m. The meeting was called back to order at 10:04 a.m., and proceeded as follows: COUNCIL MEETING ~ - 13 - • October 21, 2009 Chair Asing: The meeting is now called to order. Councilmember Bynum. Mr. Bynum: Thank you, Mr. Chair. Just to put this in context and get this on so we can have a vote, the rules have come up a number of times. They're important to me, they're important to members of the public. We had a provision in August that the Council voted down 4 to 3 to create an ad hoc committee. During that discussion, which I said was on August 5 and I'd encourage people to look at it, it's posted on our county website, to make sure that what I just say is not quoted out of context. And...but during that discussion, it was like no, we don't need an ad hoc committee, we can handle it as a council ourselves. Mr. Kaneshiro said, I'm thinking to myself why don't we just do it. We here as members and the body can appoint two people or whatever we want, you know, go ahead and make a choice, Mr. Bynum, Mr. Furfaro, Mr. Kawakami or whatever. And so that discussion was like we don't need an ad hoc committee, let's appoint two members. That's a committee, to me. Subsequent to that, Ron Kouchi testified, who had been asked to serve, and he said...and he agreed that the ad hoc committee on second thought was not a good idea, and in...in that relationship he said, so it finally dawned on me that we've never had a committee comprised of citizens convene in a council in my 25 years or so affiliated with the Council. Those committees are more appropriately, as Daryl has suggested on the 22nd, comprised of one or two councilmembers. We've looked at a variety of issues from real property tax codes, we've looked at how to deal with taxing of ag lands, and you know, economic task force, but always led by a councilmember, never more than two councilmembers. But then councilmembers, in fact, instructed the staff. The staff took the order from the councilmembers who is duly authorized to execute those orders and I think you can certainly now invite into the committee that you form, members of the public to come forward and speak and to share their mana`o with you. Being posted, you know, everyone who has an interest in this would have a chance to speak. You know, while I thought that Jay had a good idea, in talking to Daryl and Daryl made me think about this further, you know, really made me see that probably the more prudent way to go would be to have councilmembers in charge and especially when the consistent theme has been transparency, openness and access to the public hearing being made by chairpersons. You will ensure that you would meet those missions while trying to get some...the same job done. That was the discussion on August 5. As a result of that, I listened to what my colleagues said and said, okay, let's do what this council has done in the past: do asub-committee made up of councilmembers to look at a comprehensive look at the rules and make recommendations to this body, which they would have to determine and convene. As I said earlier if that's not the choice of this body now, and they changed their mind or whatever, then, you know, I intend as a councilmember to look at the rules that the community has questioned that I have concerns about. I don't think that they are radical changes. They're just the work that needs to be done to bring our rules in line with current Sunshine Law, current expectations of the community, and current practices as we practice here. You know, we had community members came up here and pointed out quite rightly that we are behaving differently than our rules outlined. This isn't a radical agenda to change things. It's just to do the work that we need to do and I'll accept the position that the body takes, but I also I!, COUNCIL MEETING. - 14 - • October 21, 2009 am counting on the fact that I've been assured now that councilmembers can follow the rule that says any member can introduce any resolution or bill for consideration by the body. Thank you very much. Chair Asing: Thank you. Any further discussion? If not, call for the question. Mr. Furfaro: Mr. Chair? Chair Asing: Yes. Mr. Furfaro: May I ask that we do a roll call? Mr. Asing: Yes. Ms. Kawahara: What's the... Mr. Asing: Roll call. Mr. Bynum: The motion is to receive. Ms. Kawahara: What's the ques...motion? Chair Asing: The motion is to receive. Roll call. The motion to receive Resolution No. 2009-55 for the record was then put, and carried by the following vote: FOR RECEIPT: Chang, Furfaro, Kaneshiro, Kawakami, Asing TOTAL - 5, AGAINST RECEIPT: Bynum, Kawahara TOTAL - 2, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Thank you, motion carried. Next item please. Mr. Nakamura: The next matter is a resolution, Resolution 2009-56. Resolution No. 2009-56, RESOLUTION ESTABLISHING CROSSWALKS WITHIN PIKAKE SUBDIVISION PHASES I & II, LIHU`E DISTRICT, COUNTY OF KAUAI: Mr. Chang moved to adopt Resolution No. 2009-56, seconded by Mr. Kawakami, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Motion carried. Next item please. Mr. Nakamura: The next resolution for approval is Resolution No. 2009-57. • COUNCIL MEETING - 15 - October 21, 2009 Resolution No. 2009-57, RESOLUTION ESTABLISHING PUBLIC TRANSPORTATION BUS STOPS AT KAUILA STREET AND MAKA`A STREET, PIKAKE SUBDIVISION PHASES I & II, LIHU`E DISTRICT, COUNTY OF KAUAI: Mr. Chang moved to adopt Resolution No. 2009-57, seconded by Mr. Kaneshiro, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Motion carried. Next item please. Mr. Nakamura: The next resolution for approval is Resolution No. 2009-58. Resolution No. 2009-58, RESOLUTION ESTABLISHING SCHOOL BUS STOPS AT KAUILA STREET AND MAKA`A STREET, PIKAKE SUBDIVISION PHASES I & II, LIHU`E DISTRICT, COUNTY OF KAUAI: Mr. Chang moved to adopt Resolution No. 2009-58, seconded by Mr. Furfaro, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro,. Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Motion carried. Next item please. Mr. Nakamura: On the top of page 5, next resolution for approval is Resolution No. 2009-59. Resolution No. 2009-59, RESOLUTION ESTABLISHING SPEED LIMITS WITHIN PIKAKE SUBDIVISION PHASES I & II, LIHU`E DISTRICT, COUNTY OF KAUAI: Mr. Kaneshiro moved to adopt Resolution No. 2009-59, seconded by Mr. Kawakami, and carried by the following vote: FOR 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. Mr. Nakamura: Next resolution for approval is Resolution No. 2009-60. Resolution No. 2009-60, RESOLUTION ESTABLISHING STOP SIGNS, STOP LINES, YIELD SIGNS, AND YIELD LINES ON COUNTY ROADWAYS WITHIN PIKAKE SUBDIVISION PHASES I & II, LIHU`E DISTRICT, COUNTY OF KAUAI: Mr. Kaneshiro moved to adopt Resolution No. 2009-60, seconded by Mr. Kawakami, and carried by the following vote: COUNCIL MEETING. - 16 - ~ October 21, 2009 FOR 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. Mr. Nakamura: Next resolution for approval is Resolution No. 2009-61. Resolution No. 2009-61, RESOLUTION AUTHORIZING THE MAYOR OR THE DIRECTOR OF FINANCE OF THE COUNTY OF KAUAI TO ENTER INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE STATE OF HAWAII, DEPARTMENT OF HEALTH FOR A LOAN FROM THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 PORTION OF THE STATE WATER POLLUTION CONTROL REVOLVING FUND FOR THE WAIMEA WASTEWATER TREATMENT PLANT EXPANSION, PHASE I, PROJECT NO. C150047-04: Mr. Chang moved to adopt Resolution No. 2009-61, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Councilmember Furfaro. Mr. Furfaro: Thank you. I...I want...I want to say that this is a project that I think is very important for us on the west side. I also want to point out that as we move forward here, we need to move with some urgency on securing the loans from the American Recovery and Reinvestment Act. There are some opportunities to move quickly to secure those loans, to look at some additional operational cost savings with the introduction of solar voltaic power to run the facility, also looking at some redundancy with the injection well...of a back-up injection well, as well as AV treatment for getting it to R-1 water type. So, I just wanted to give the rationale, although the project is a little more than we thought. The long-term benefits far outweigh that exposure and we need to move with some urgency on these funds. Thank you, Mr. Chair. Chair Asing: Thank you. Any discussion? Go ahead, Councilmember Kawahara. Ms. Kawahara: Thank you. I also wanted to mention that I have had questions about the funding and whether that funding could have been used for other types of infrastructure projects in Waimea and I was informed that these were only specifically good for this project. So for those of you that were concerned about that, that was the information I received and it was specific only to this project that it could be used. Thank you. Chair Asing: Thank you. Any further discussion? If not, roll call please. The motion for adoption of Resolution No. 2009-61 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. COUNCIL MEETING ~ - 17 - • October 21, 2009 Chair Asing: Thank you, next item please. Mr. Nakamura: Last resolution is Resolution No. 2009-62. Resolution No. 2009-62, RESOLUTION AMENDING RULES OF THE COUNCIL OF THE COUNTY OF KAUAI FOR THE ORGANIZATION OF COMMITTEES AND THE TRANSACTION OF BUSINESS (Travel Requests): Mr. Bynum moved to defer Resolution No. 2009-62 and seconded by Ms. Kawahara. Chair Asing: We have a motion to defer and we have a motion... Did you move to approve? Mr. Kaneshiro: No. He made the motion first. Chair Asing: Okay. There's a motion to defer. Any... Ms. Kawahara: I seconded it. Chair Asing: ...questions? Okay. Any questions? Any discussion? Mr. Furfaro: That defers it for two weeks? Chair Asing: Okay, all right: Okay, what we'll do is we'll take a vote on the motion to defer. I see no reason for deferring this. I think it's plain. I've looked at the resolution and it's just a simple travel...some of the areas of travel that you need to look at and so I...I don't see any need for deferral. With that, members of the public... Mr. Furfaro: (Inaudible) because we have a motion to defer... Mr. Kawakami: There's no discussion. Mr. Furfaro: There should be no discussion. Ms. Kawahara: No discussions. Chair Asing: Yes, right. Mr. Bynum: Other than the Chair's, apparently. Chair Asing: Yeah, except that we need to let the public speak. Am I correct, Peter? Ms. Kawahara: On a motion to defer? Chair Asing: Yeah. Mr. Nakamura: Well, they're speaking on the agenda item. Ms. Kawahara: Oh, okay. Chair Asing: The...there is no discussion on the floor on a motion to defer, but the public may speak. COUNCIL MEETING. - 18 - ~ October 21, 2009 Ms. Kawahara: Okay, thank you for clarifying. Chair Asing: Thank you. There being no objections, the rules were suspended. ROB ABREW: Aloha, my name is Rob Abrew. Good morning, Council. I find it ironic that the first item here was a rule, amendment to a rule or discussion of setting up rules, and now this is the...and there was some discussion about why do we need to set up a rule, we don't change rules here, we need to go through the process, and now you guys defer this one. That was asked for the first one. You're deferring this one. So, are you guys consistent? Or not? Why did you...why did you tag that one to receive and this one to defer? Oh it's...it's...you know what...it...to me it's almost comical that out of one... Mr. Furfaro: Excuse me, I'll give you my answer right now so it's not comical. Mr. Abrew: Okay. Mr. Furfaro: There...I will vote to defer this item and if you understand administrative process, I will not support this amendment to the rules because administratively our rules state what the policy is. But the policy itself is not interpreted in the rules. We need to actually create the administrative rules and it shouldn't be in the rules. Mr. Abrew: If that...if that's your thing, Jay, Mister... Mr. Furfaro: That's my thing... Mr. Abrew: Okay, thank you. Mr. Furfaro: ...if you refer to it and I don't think it's comical. I think it's the appropriate administrative process. But I wanted to comment on your criticizing it for being comical. The reality is we should not have the policy imbedded in the rules and therefore I won't be supporting this. Mr. Abrew: I...I apologize to the Council. I...I probably stepped over bounds there. I...I just saw the issue of talking about rules at the beginning and we spent a lot of time on it and then...and we chose to receive that one and this is another rule we're talking about and we've chosen to defer this one. That's what I saw and that's why I mentioned it. Thank you. Chair Asing: Let me...you...you want to step up. Let...let me explain. When we talk about process, this is the process. We've come up with a rule amendment change and here is the process. You discuss it, and whether you agree with it or don't agree with, you make that determination by your vote. So, it's...it's the normal process. The work was done, it's put before the body, and the body decides. That's the normal process. We do that all the time. Mr. Abrew: Thank you, Mr. Chair. Chair Asing: So it's...it's nothing that's different. Mr. Abrew: I...I understand. COUNCIL MEETING • - 19 - • October 21, 2009 Chair Asing: It's a good process. Mr. Abrew: Okay, I...I understand what you're talking about and like I said I apologize for making the issue of thinking, you know, it was the word I used before. I would just question, you know, we're talking about rules and you see one then and one the other, that's why I questioned it because of the time we spent earlier. Chair Asing: Okay, thank you. Glenn? GLENN MICKENS: Thank you, Kaipo. For the record Glenn Mickens. Just a point of clarification. This is asking the reso... amending rules of the Council regarding that travel request. Will the viewing public get to know what a...what amendment it's going to be? Will we be able to find out? You know, again, I agree with you Kaipo. I think it...you know, I don't know why it should be deferred. I don't know why this can't be a relatively simple...you know, it's going to be a rule change. What is a rule change? I think...was it you denied the request to (inaudible)...whatever the ru...whatever your...your rationale was for and if the rule is going to be changed, I just wondered if, you know, the viewing public can be privy to knowing what this is? Chair Asing: Okay, thank you. Is there anyone else? Okay, I'd like to call the meeting back to order. There being no one else wishing to speak on this matter, the meeting was called back to order, and proceeded as follows: Chair Asing: We have a motion on the floor to defer. All those in favor say aye. Councilmembers: Aye. Chair Asing: Yes, ~go ahead. Mr. Furfaro: I voted for the deferral. Chair Asing: Okay. Mr. Furfaro: I wanted a moment of personal privilege. Chair Asing: Okay. Mr. Furfaro: After the vote. Chair Asing: Aft... after the vote. Okay, now did you hear the vote? Mr. Nakamura: No, I (inaudible). Chair Asing: Why... why don't we roll call. Mr. Nakamura: Thank you, Council Chair. This is on a motion to defer on Resolution No. 2009-62. The motion is to defer. COUNCIL MEETING ~ - 20 - • October 21, 2009 The motion to defer Resolution 2009-62 was then put, and carried by the following vote: FOR DEFERRRAL: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7 AGAINST DEFERRAL: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please. Mr. Nakamura: Next item is a bill for reconsideration. This is Bill No. 2331. BILL FOR RECONSIDERATION: Bill No. 2331 - A BILL FOR AN ORDINANCE AMENDING CHAPTER 13 OF THE KAUAI COUNTY CODE 1987, AS AMENDED, ENTITLED "ELECTRICAL CODE," ADOPTING THE NATIONAL ELECTRICAL CODE, 2008 EDITION AS STANDARD FOR ALL ELECTRICAL WORK Mr. Nakamura: Mr. Chair, just by way of explanation, if I may. Chair Asing: Go ahead. Mr. Nakamura: This bill was passed on first reading at the previous Council meeting on October 7, 2009 and my apologies to the Council, to the Chair and the Council is I made a mistake in the title of this bill. So what we're asking since it was passed on first reading at the October 7, the last Council meeting, and rules allow for reconsideration at the meeting following, we're...we'd like to ask that the Council reconsider this bill and receive it after the reconsideration is acted upon because on first reading Bill No. 2335 at the top of page 6 is the correct version of the bill and the correct version of the title. So, my apologies, Mr. Chair, if...if we could ask the Council for the reconsideration and after the reconsideration for a motion to receive this flawed bill. Mr. Kawakami moved to reconsider Bill No. 2331, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Motion carried. Mr. Kawakami moved to receive Bill No. 2331 for the record, seconded by Mr. Bynum. Chair Asing: Any discussion? All tho...I'm sorry, go ahead, Councilmember Furfaro. Mr. Furfaro: I have discussion on this. The... you know, my... my concerns along this particular electrical code is are we going to get something in the future that comes with this bill that explains to us what the exemptions are especially when it comes to affordable homes. I see pieces in there that deal with single-wall construction, requiring mechanical engineers. Mr. Bynum: It's a different bill. Chair Asing: Yeah, that's a different bill. COUNCIL MEETING • - 21 - • October 21, 2009 Mr. Furfaro: That's the bill that's coming up. Chair Asing: Yes. Mr. Furfaro: Yes, but I want to make note of the inter-relation of the two bills. Chair Asing: Okay. Mr. Furfaro: If I could continue with the floor. Mr. Bynum: Sorry. Mr. Furfaro: No, thank you if you thought I was in the wrong place, that's fine. But the reality is with the Energy Sustainability Plan coming up, is there going to be any comparisons with all of the codes that we are talking about adopting and what impacts they might have? I mean, we...are we going to get anything from the Building Department? Chair Asing: Why...why...why don't we just send a communication to the Building Division and get that information. Peter, please? Mr. Nakamura: Yes. Counc...Council Chair, we'll make a note of it and we'll speak with the Vice Chair afterwards to make sure we capture all his concerns. Chair Asing: Thank you. Any further discussion? Mr. Furfaro: Ah, yes. -- Chair Asing: Go ahead. rt Mr. Furfaro: And so therefore, I want to just relate to the Electric Code which come...which is coming up on the next item as it re...rel...relates to the Energy Code. Chair Asing: Okay, so noted. With that, any further discussion? All those in favor say aye. The motion to receive Bill No. 2331 for the record was then put, and unanimously carried. Chair Asing: Next item, Peter. Mr. Nakamura: Next matters are bills for first reading. The first bill for first reading is Proposed Draft Bill No. 2332. BILLS FOR FIRST READING: Proposed Draft Bill No. 2332 - A BILL FOR AN ORDINANCE AMENDING CHAPTER 12, ARTICLE 6, KAUAI COUNTY CODE 1987 RELATING TO THE ENERGY CODE: Mr. Bynum moved for passage of Proposed Draft Bill No. 2332 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for November 18, 2009, and that it thereafter be referred to the Public Works/Elderly Affairs Committee, seconded by Mr. Kaneshiro. COUNCIL MEETING. - 22 - ~ October 21, 2009 Chair Asing: Any discussion? If not, roll call please. Mr. Kawakami: Oh yes, Mr. Chair. Chair Asing: I'm sorry. Councilmember Kawakami. Mr. Kawakami: And I just want to say that I have the...similar concerns. I met with a few contractors that may have some concerns with the Energy Code and affordable housing. So, I guess, when it hits committee, I'd like to send a communication over to meet with Building to clarify some of these concerns that I may have. Thank you, Mr. Chair. Chair Asing: Thank you, so noted. Councilmember Bynum. Mr. Bynum: I think like all bills, we'll have due consideration of this. I've been tracking this Energy Conservation Code for about a year and a half and DBED has had astate-wide committee working on it. I'm certain that Public Works will be here to testify about why the bill is structured the way it is. Chair Asing: Okay.. Any further discussion? Councilmember Furfaro? r Mr. Furfaro: May I specifically ask that as this Energy Code and potential Electric Code, could we make certain that it is Doug Haigh that is here for that? Chair Asing: Okay, so noted. Any further discussion? If not, roll call. The motion for passage of Proposed Draft Bill No. 2332 was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Thank you, motion carried. Next item please. Mr. Nakamura: Next bill for first reading is Proposed Draft Bill No. 2333. Proposed Draft Bill No. 2333 - 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 THROUGH JUNE 30, 2010, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($150,00 - Kapa`a-Wailua Development Plan): Mr. Kaneshiro moved for passage of Bill No. 2333 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for November 18, 2009, and that it thereafter be referred to the Budget & Finance Committee, seconded by Mr. Kawakami. Chair Asing: Any discussion? Councilmember Furfaro? COUNCIL MEETING ~ - 23 - ~ October 21, 2009 Mr. Furfaro: As Planning Chair, I want to make sure that the message goes across that, you know, this is to finish up the plan. This is not money that we're giving at this time when our resources are pretty restrictive. This isn't money to reboot the process. This is to finish the process. Chair Asing: Thank you. Any further discussion? If not, roll call. The motion for passage of Proposed Draft Bill No. 2333 was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Thank you. Next item please. Mr. Nakamura: Next matter for first reading is Proposed Draft Bill No. 2334. Proposed Draft Bill No. 2334 - 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 THROUGH JUNE 30, 2010, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND (Transfer $230,000 from Kapa`a New Fire Station to Pi`ikoi Building Design): Mr. Kaneshiro moved for passage of Proposed Draft Bill No. 2334 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for November 18, 2009, and that it thereafter be referred to the Budget & Finance Committee, seconded by • Mr. Kawakami. Chair Asing: Any discussion? Mr. Furfaro: Yes. Chair Asing: Councilmember Furfaro. Mr. Furfaro: Mr. Chair, thank you. May...may I just say that at some future point, is the Finance Committee going to be able to get kind of a reconciliation of our spending expectations to complete this project? This is only design, but having a better understanding of what total refurbishment, remodeling we'll...we'll be looking at as far as an estimate. Mr. Kaneshiro: Absolutely. You brought up a good point. We've had some discussions on that through the process. So yes, we'll be looking at that also. I guess, Mr. Chair, you wanted to add something to that? Chair Asing: No. We're going to have the Administration here to advise us. Mr. Kaneshiro: Yeah. Chair Asing: Okay, any further discussion? If not, roll call please. COUNCIL MEETING - 24 - • October 21, 2009 The motion for passage of Proposed Draft Bill No. 2334 was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Thank you. Next item please. Mr. Nakamura: The last bill for first reading is Proposed Draft Bill No. 2335. Proposed Draft Bill No. 2335 - A BILL FOR AN ORDINANCE AMENDING CHAPTER 13, ARTICLE 4, SEC. 13-4.1, OF THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE ELECTRICAL CODE AND ADOPTING THE NATIONAL ELECTRICAL CODE, 2008 EDITION AS A STANDARD FOR ALL ELECTRICAL WORK: Mr. Bynum moved for passage of Proposed Draft Bill No. 2335 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for November 18, 2009, and that it thereafter be referred to the Public Works/Elderly Affairs Committee, seconded by Mr. Kaneshiro, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Thank you. We're going to take the caption break now. There being no objections, the meeting was recessed at 10:29 a.m. The meeting was called back to order at 10:47 a.m., and proceeded as follows: Chair Asing: The meeting is now called to order. With that...is it on? Thank you. With that, Mr. Clerk? Mr. Nakamura: Mr. Chair, we're on bills for second reading. At this time if we could on page 6 of the Council's agenda go to Bills Nos. 2324, 2325, 2326, and 2327. BILLS FOR SECOND READING: Bill No. 2324 - A BILL FOR AN ORDINANCE AMENDING STATE LAND USE DISTRICT BOUNDARY IN NAWILIWILI, KAUAI (MORI Golf (Kaua`i) LLC., Applicant) Chair Asing: Thank you. What I'd like to do is I'm going to make a short presentation explaining the four bills that are before us. The four bills relate to the Kauai Lagoons Project. The applicant is MORI Golf (Kaua`i) LLC. All of these four bills are related to that project and I'd like to just take some time to explain the four bills. With that, I'd like to turn the meeting over to Vice Chair Furfaro. COUNCIL MEETING ~ - 25 - • October 21, 2009 Mr. Furfaro: Thank you, Chairman Asing, and I'll be sitting here at the Clerk's table as you make the presentation for the public on these four bills that have come out of the Planning Committee. So the rules are suspended. Mr. Chair, you have the floor. There being no objection, the rules were suspended. Chair Asing: Thank you. Am I on? Okay. This is the first bill which is Bill No. 2324, which is the amendment for the State Land Use District. What we have here...let me just describe the...the area first. This entire area here is the Kauai Lagoons Project`in this area here. To give you some idea as to what we're talking about, this is the Nawiliwili, Kalapaki beach area. This is the ocean here. This is the breakwater and the hotel is in this area here and the Kauai Lagoons Project is in this entire area here: So this is what we're talking about, and this first bill that we make...we're making reference to does this. It...it does create subdivisions I-A and V, which is this area here. These are the two subdivisions, and what we're doing here is we are reclassifying these areas from...to urban and the total acreage is 14.6. So that's what is being done here. The next, Peter, the next bill which is 2325, what we're doing in this particular case here, it is a General Plan change and we're doing an open to resort. The acreage is 19.1 acres, and you will note that this is the area here. So, we're doing the resort and this is the resort Here, this color here. So this one here is being re...reclassified. And then the next bill, which is Bill 2326...Peter...we're taking the...the...all of the three subdivisions which are being created here. You. will note subdivision V here and there's another subdivision here and a subdivision there. So all three subdivisions are presently open and it's going to be R-2. The total acreage for these three is 21.6 acres. Then we have the last bill, which is 2327, and what that does, it expands the VDA boundary, and it changes that into this area right here. The VDA boundary is presently this dotted line going here. That's the boundary, and then so the expansion is that portion there. So, these are really the...the four bills. Now, what will happen is that we will be doing these changes and with those changes, the developer will be able to build additional units on all of those property changes that we made. In turn for that, they get the opportunity to build more units with these changes and we get, the County of Kauai gets this parcel here, which is 138 acres for nothing. It does not cost us anything. So it's atrade-off. What we did, which is what I explained earlier, that's what the developer gets, the opportunity to build additional units with the land changes, the zoning changes, the VDA, etc., and then we get to own this 138 acres of beach front property. What I'd like to do now is let me get back...oh, let me, let me just do it here. Before we take final action on these four bills, I want to take the time to give some background on the overall purpose of these four bills, which is to allow the county to obtain 138 acres of this unique coastal resource at no cost to the County. In 2006 which was the last time the Kauai Lagoons Project was before the Council, discussions were started by former Councilmember JoAnn Yukimura and I with Kevin Showe and Ron Kouchi. Mr. Kouchi was not on the Council at that time. We discussed ideas to keep the...to try to keep the 138-acre ocean...ocean front parcel free from future development and for public use. And with that idea that was passed on to the developer, the developer started some...some work. We exchanged COUNCIL MEETING - 26 - • October 21, 2009 ideas and tried to come up with which would be the best thing to do. Having fished along this coastline for many years and this area has always been a special place to me and many other long-time Kauai fishermen, we made some suggestions and talked about ideas on how the county could possibly take ownership of this coastal area in order to keep it as a permanent open space resource for all the people of Kauai. As a result of these initial talks in 2006, Kevin Showe agreed to continue working on ways to allow the County to own these 138 acres of undeveloped coastline. The fa...final plan before us is truly awin-win situation that allows the developer to construct additional units on the resort property while giving the County free and clear ownership of the 138-acre beach front property. I want to let everyone know that it has taken years of hard work by dedicated people, many people to bring this matter before the Planning Department, Planning Commission, and the Council. As we sit here today for final approval, I would like to recognize these people. I want to thank former Councilmember Yukimura for her commitment to this project. I'd also like to thank attorney Mike Belles for his legal advice and guidance on this matter. Finally, I want to express my sincerest appreciation to Mr. Kevin Showe for keeping his word and continuing to work on a way to transfer this 138-acre parcel into County ownership and to Ron Kouchi, who was not on the Council at that particular time, for his diligence in making this a reality for our island and our community. With that, I encourage the Council to approve these four bills. Thank you. The meeting was called back to order, and proceeded as follows: Chair Asing: With that, I...I'd like to... We are now on the first bill. I believe... Mr. Furfaro: Mr. Chair, may I have just a moment. Chair Asing: Yes. Mr. Furfaro: In your presentation I want to thank you very much and your recognition of Mr. Showe, as well as Mr. Belles, and of course former Councilwoman Yukimura. I want to thank you personally for your diligence in staying close to this vision. I did want to indicate that the question surfaced to us by Cheryl in the Planning Committee meeting. We were go...are going to be forwarding that to the Planning Department when they do the actual CZO update as it's many documents that need to be re-evaluated on the name of Kalapaki versus Nawiliwili, and also, the density amount that was not in your presentation was only 22 units. Chair Asing: Yes. Mr. Furfaro: I just wanted to point that out and again thank you for all your work on this over the years. Thank you. Chair Asing: Thank you. Councilmember Bynum? Mr. Bynum: I just want to echo what the Chair just presented that this is truly awin-win situation, a big win for the County of Kauai. I'm going to be proud to vote for these, and this...and I want to acknowledge the previous Council prior to my being on it. I had nothing to do with this and...but I'm glad to be here for the fruition and...and I want to particularly acknowledge the leadership • COUNCIL MEETING - 27 - October 21, 2009 of Chairman Asing, who along with Councilmember Yukimura, took the lead on making this happen. So, this is a good example of where collaboration and looking for the best interest of all parties turned out in a really positive manner. Chair Asing: Thank you. Any further discussion? If not...yes, go ahead, Councilmember Kaneshiro. Mr. Kaneshiro: Thank you...thank you, Mr. Chair. You know several years ago I walked the property with Mr. Kevin Showe and at that time, like I said it was several years ago, and Mr. Showe did have some different ideas of how we could put some nice agricultural lots and residential lots and so forth on the property, and by Mr. Asing's and former Councilmember JoAnn Yukimura's and Mr. Ron Kouchi's putting their thoughts together, presented this idea to Mr. Showe. And I...and Mr. Showe also talked to me about it because he went ahead and fenced the area out and I had an opportunity to lease the property and put some sheep in it and run some grazing animals in the property. So I had a real close contact with the property itself. I spent many hours out there on the weekends, in the mornings, and in the evenings, and you know I looked at the property and I...and I thought about it, and I thought about the presentation that Mr. Asing, JoAnn and of course Ron Kouchi talked about. And I...I just looked at it and sat there and talked to Kevin and said what a wonderful opportunity that would be for the public...for the public to have this piece of property. It's really a nice property. If you stand out there, you're out there in the evenings or you're out there early in the morning, you'll see how nice the property is. And for Mr. Showe to change his whole thoughts from the point of really using the density to do some ag lots and so forth, to having the idea of some day the public having this property. And, you know, when you...when you...you're standing up there and you're thinking about it, you know, i...it's...it's just an amazing coming together of how the thoughts came about. Because I can tell you something, you know, when...when you're really there we also talked about where to put a barn. We also talked about putting other things here and looking at...at different places where you can really put residents or residential densities on the lot. And when this idea came about where Mr. Showe really agreed about the idea of having this property go to the public for public use, it was like...I was almost completely blown away. So, with that I really wanted to thank, you know, former Councilmember JoAnn Yukimura, Councilmember...Mr. Chair Asing, Ron Kouchi and Mr. Showe himself for really bringing forth what I think the public some day will have a great opportunity to see as a vision of what we were trying to accomplish, of being able to get lands for the public. And for all reasons again, you know, I want to thank them and of course, Kauai Lagoons LLC, which is part of Mr. Showe's company. Chair Asing: Thank you. Councilmember Kawakami. Mr. Kawakami: Thank you, Mr. Chair. And I would like to also thank all of the parties involved because, you know, I grew up in this area. I mean we...we...they used to call us wall rats because we used to hang out at Kalapaki wall, yeah, all day and this was one of the areas that I have a personal attachment to. I mean we used to call this place strobes because when we used to go fishing at night the runway lights would go off and it would create a strobing effect that we'd call that place strobes. But, you know, for many of us that grew up in the area, it represents a sanctuary. You know, it represents so much more than the rugged and wild coastline that it is. It's almost like a part of us, of our lifelong experience. And just the beauty of the area, I mean there's little coves. And I used to go down, you know, with friends or by myself to go fishing, to go eat lunch and just, you know, to get away because, you know, you're in the heart of the city, but you know it's so far COUNCIL MEETING. - 28 - • October 21, 2009 removed from everything else. So I really want to say thank you to the Showes, thank you to the councilmembers who worked hard to cut the deal to keep this, yeah, for the people. Mahalo. Thank you. Chair Asing: Cou...Councilmember Chang. Mr. Chang: Thank you. I need to echo the aloha out to everyone that made this possible. I know Kevin Showe is here, Michael Belles and friends, of course to former councilmembers Kouchi and Councilwoman JoAnn Yukimura, of course to the Chair, I think I got a little bit of a different perspective and I'm real honored to be here on Kauai. Twenty-three years ago I actually came over, as many may know, to open the Westin Kauai Hotel. So when I saw that 800-acre property, I wanted to make sure that I knew that property like the back of my hand and did a lot of exploring and, you know, `opihi picking and walking along the coast. But I think one of the beauties that we all have is when you go abroad, and of course we all go abroad, but as you're flying into Kauai and you see Nawiliwili and when you land over Kauai Lagoons and you see how pretty that is, as soon as you land you know that you're at home. But also more importantly I think when we leave and if we have the fortune of sitting on the left side of the plane facing the front, when we leave the island of Kauai it's nice to know that when we fly over Kauai Lagoons and that area, it'll always be that rugged barren undeveloped coast and I think that's the lasting impression a lot of people have while they're leaving the island of Kauai is because less than 20 minutes later you're flying almost over the City & County of Honolulu and the second city of Kapolei, and I think all of us Kauai residents and the visitors alike like that wild ruggedness and we now know that it's gonna be beautiful unspoiled beauty. So, thank you to Mr. Showe and to everybody that made this possible for certainly the generations to come. Mahalo. Chair Asing: Thank you. Councilmember Kawahara. Ms. Kawahara: Thank you, Council Chair. I...I believe it is very important that we are...we are thanking the people that made this possible. The fact that we...the County will be getting the 138 acres in perpetuity for the public is incredible. In reading the legislative history of this bill and how it came about, it is amazing the groups of people that came together, Mr. Showe, Counc...former councilmembers Kouchi and Yukimura, and Mr. Belles and of course our Council Chair in their steadfastness in making this happen despite the ups and downs and challenges that were put in front of them in making this happen. Thank you so much for all that you've done and for what's going to be something that the community will have forever. Thank you so much for all of your hard work. Your...you need that recognition and you deserve it and we thank you for everything you've done. Thank you. Chair Asing: Thank you. Any further discussion. If not, I believe we're on Bill No. 2324. Am I correct? Mr. Nakamura: Correct, correct, Mr. Chair. Chair Asing: Roll call, please. Mr. Furfaro moved for adoption of Bill No. 2324 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Kawakami, and carried by the following vote: COUNCIL MEETING ~ - 29 - ~ October 21, 2009 FOR 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, motion carried. With that, next item please. Mr. Nakamura: Next bill for second reading is Bill No. 2325. Bill No. 2325 - A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. PM-2006-382, RELATING TO GENERAL PLAN DESIGNATION IN NAWILIWILI, KAUAI (MORI Golf (Kaua`i), LLC., Applicant): Mr. Kaneshiro moved for adoption of Bill No. 2325 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Furfaro, and carried by the following vote: FOR 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, motion carried. Next item please. Mr. Nakamura: On page 7, the next bill for second reading is Bill No. 2326, Draft 1. Bill No. 2326, Draft 1 - A BILL FOR AN ORDINANCE AMENDING ZONING CONDITIONS IN ORDINANCE NO. PM-2006-383, RELATING TO ZONING DESIGNATION IN NAWILIWILI, KAUAI (MORI Golf (Kaua`i), LLC., Applicant): Mr. Furfaro moved for adoption of Bill No. 2326, Draft 1, on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Kaneshiro, and carried by the following vote: FOR 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. Mr. Nakamura: Next bill for second reading is Bill No. 2327. Bill No. 2327 - A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. PM-2006-384, _ RELATING TO VISITOR DESTINATION AREA DESIGNATION IN NAWILIWILI, KAUAI (MORI Golf (Kaua`i), LLC., Applicant): Mr. Furfaro moved for adoption of Bill No. 2327 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Kaneshiro, and carried by the following vote: FOR 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, motion carried. COUNCIL MEETING - 30 - ~ October 21, 2009 Mr. Furfaro: Can we take a short recess? Chair Asing: Yes. Can we take...should we take a caption break? Mr. Nakamura: We did caption break a little while ago. We can take another one, Mr. Chair. Mr. Furfaro: Let's take another caption break, 10 minutes. Chair Asing: We'll take a caption break, thank you. There being no objection, the meeting was recessed for a caption break at 11:11 a.m. The meeting was called back to order at 11:35 a.m., and proceeded as follows: Chair Asing: This meeting is now called back to order. BC, am I on? BC, videographer: Yeah. Chair Asing: Thank you. Mr. Nakamura: Mr. Chair, we're on page 6 of the Council's agenda on Bills for Second Reading. The first bill for second reading is Bill No. 2319, Draft 1. Bill No. 2319, Draft 1 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Amending Article 27, Chapter 8, Kauai County Code 1987, relating to Shoreline Setbacks and Coastal Protection): Mr. Bynum moved to approve Bill No. 2319, Draft 1, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Yes. I'd like to open it up to the public. Is there anyone in the public who would like to speak on this item? There being no objection, the rules were suspended. Chair Asing: Good morning. CAREN DIAMOND: Good morning. I would like to speak, but if there are any amendments, I might want to hold my speech until after that. Chair Asing: No. I...I don't believe anyone has amendments. You... Mr. Kawakami: You know, I did have an amendment, but it...it has drawn some concern from the county attorneys. So I think it'd be diligent to hold off on introducing any amendment, yeah, at this time. Chair Asing: Okay, okay. You...you want to have some clarification from the County Attorney's Office or would you just rather not and be done? Maybe not at this time? Mr. Kawakami: Yeah. Well, we can get clarification. I mean if you can (inaudible)... COUNCIL MEETING • - 31 - ~ October 21, 2009 Chair Asing: I'd like to suspend the rules and have the County Attorney up. AL CASTILLO, JR., COUNTY ATTORNEY: Good morning everyone, Council Chair, councilmembers. I won't say aloha, but aloha. Yes, Al Castillo, County Attorney. Mr. Kawakami: Thank you, Mr. Castillo. I had an amendment and the purpose of the amendment was to just clarify shoreline setback ordinances consistent with the Planning Commission's rules regarding Special Management Area permits. There are some concerns that I believe have come out of your office and so I'm holding back on introducing the amendment. So, I guess the question is if you could bring some clarity is to what some of the concerns may be with the amendment. Mr. Castillo: Okay, so you will be sending that to our office? Mr. Kawakami: I can send that to your office. Mr. Castillo: Okay, thank you. Mr. Kawakami: Okay. Chair Asing: Okay, thank you. I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: Is...is there a preference on deferring this item until we get clarification or do councilmembers want to move it out? Yes. Mr. Kawakami: You know, Mr. Chair, I'm going to...I'm going to ask for a deferral and the purpose is, you know, just...just to give it due diligence. You know, I figured that this amendment would serve to bring clarity. I think a lot of what was in the amendment is already required anyway, but I think responsible legislation requires clear legislation and this just served to clarify, I think, what is already, yeah, supposed to happen. So, you know, I'll leave it up to the body, but if not, I can entertain...I mean, I can make a motion to defer at this time. Chair Asing: Okay. Is...any concerns, questions, councilmembers? If not, I'll just entertain a motion to def...I'm sorry, go ahead, Councilmember Bynum. Mr. Bynum: I agree with Councilmember Kawakami that we want to do due diligence. My only concern is that we have some projects under DOJ that are time-sensitive, that are impacted by this bill and if...if a two-week deferral's not going to cause any problems, I don't have any objections. But I'm concerned about that, us meeting the legal requirements of that DOJ thing, so. We're okay? There being no objection, the rules were suspended. Mr. Castillo: I...hello. It's on, okay. Just for the record. It is time-sensitive and we would appreciate...as soon as possible as far as coming back. COUNCIL MEETING - 32 - • October 21, 2009 Chair Asing: Would you have any objections to deferring the bill? Mr. Castillo: No objections to two weeks. Chair Asing: Thank you. Mr. Furfaro: No objections on two weeks, is that what you said, Al? Mr. Castillo: Yes. The meeting was called back to order, and proceeded as follows: Chair Asing: Okay, with that can I have a motion to defer. Mr. Kawakami moved to defer Bill No. 2319, Draft 1, seconded by Mr. Chang, and unanimously carried. - Chair Asing: With that, can we have the next item please? Mr. Nakamura: We're on page 6 of the Council's agenda, Mr. Chair, a bill for second reading, Bill No. 2322. Bill No. 2322 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (ADU Building Permit deadline extension for non-residentially zoned land) Mr. Kaneshiro moved for adoption of Bill No. 2322 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Bynum. Chair Asing: Okay, there's been a motion to approve and a second. With that, I'd like to suspend the rules and have public testimony. There being no objections, the rules were suspended. ROB ABREW: Aloha, Councilmembers. Rob Abrew for the record. I just recently started looking at this and the bill states that the Kauai Council finds that due to the recession and tight credit market, lot owners have been unable to obtain financing and construct houses. Are there...is there any data on the findings or any kind of gathering of information or any kind of email testimonies that people asked that these...this came here. Are they public record? I haven't seen any. I have investigated, but I haven't found any kind. So, I...I don't know if that needs to be clarified based on the data or the facts we've got that this is...that this is true. The next thing I have is on the list obtained from the Planning Department, there is approximately 375 variances put out there based on a report from the Planning Commission num...page 3. The number of applicants that have not either plan checked or...or have been approved at this point are 281. So, my...my thought is of those 375, 281 ADU permits have not been acted on per the regulations now in place based on the law or resolution in place now. I'd also like to comment that of those 281, 75 of those units one person owns more than one of them. So, out of those 281, there's 75 units there that one person owns more lo...more TMKs that are on there. So these aren't all individuals. There's one owner here that has applied for 14 variances or...or the permits. My COUNCIL MEETING • - 33 - • October 21, 2009 question is if the intent of this whole thing, you know, 20 years ago was to give the `ohana units to family members, how...you know, how can you extend a time when a developer is asking for these. I guess, you know, can the developer come and ask, we can't get financing, to get these through because most of these are going to be CPR'd so it could possibly create 300 more units in ag and open areas here, possibly. One o£ ..back in 2006, one of the Planning Commission's concerns was...(inaudible)...was that...this ADU extension has fueled speculation and the fragmentation of land. If we're talking once again about financing and interest is that's part of life. If the market goes down and you have bought an investment... Chair Asing: Your three minutes has passed and you have an additional three minutes. Go ahead. Mr. Abrew: Okay. Thank you, thank you. So, my question to the County is we have a class of people that we're going to offer an extension to based on financial needs, in my opinion. For the history of this bi11...I'm trying to...hang on just a minute, let me find this again...from two-thousand um...from October 1982 to May 12, 2006, there have been 399 ADUs issued. So for 24 years we issued 399 ADUs. I've heard it time and time again people coming to this Council saying we're being obliterated by...or we're having these people infect the County with all these ADUs on ag lots and everything like that. So, possibly in five years we could have 400 more in five years. Ms. Kawahara: Are you... Mr. Abrew: The issue I'm talking, you know...the issue I'm talking about and it's talked about in the reports are these lots are less than 3.99 acres on ag land, most of them, and per County zoning, you can only have one house on that lot. That lot still is subject to State regulations of CPR. So, you could actually CPR that lot and sell that lot with a housing for your investment or for your...you know, for your...to keep what you put into it. That's basically all I had to say is...is I would like to see, you know, the issues and the findings the Council came to, conclusions, the data, the background and the reports that they created for these lots to make that finding. Chair Asing: Okay, with that, Councilmember Bynum. Mr. Bynum: Just, have you read the Planning Department's report on this bill? Mr. Abrew: Mm-hmmm. Mr. Bynum: Okay, so... Mr. Abrew: The one issued this year. Mr. Bynum: Right, so you know that this is a known quantity. It would not result in any new ADUs beyond these ones. That's an excellent report and so there are...all of that data is available to you. Mr. Abrew: You know, I understand that. Mr. Bynum: And yes, people contacted us with their individual circumstances and so...but this bill does not allow new ADUs to be created on ag land. COUNCIL MEETING. - 34 - • October 21, 2009 Mr. Abrew: I understand that. Mr. Bynum: Okay. Mr. Abrew: Right now, we have 375 ADUs that could be built. Mr. Bynum: I just wanted to... Mr. Abrew: Okay. Mr. Bynum: ...see if you'd seen this report. Mr. Abrew: I understand that and that...that was my whole issue is we have 385 of them out there that... Chair Asing: Okay, thank...thank you. You've answered the question unless Councilmember Kawahara, you had a question? Ms. Kawahara: When you came up, yeah, I recognized your concerns, but I was wondering how long and how long you had taken to study these because you did mention that you hadn't been able to look at this for very long. Mr. Abrew: Yeah, I've, you know, been able to look for it for a couple weeks and...and...and read the report from 1982 and I've read everything on the basis of these things. Ms. Kawahara: Okay, okay. So I just want to assure you that I think most of the councilmembers take their job very seriously and they've read it and looked at it for months now. The concerns that you mentioned are very viable and when we make our decision on this, I want to assure you that I am hearing your same concerns because they are my same concerns. But I have read it and looked over it. I've spoken with staff; I've spoken with administration; I've spoken with people that have put this...put...put up...put their petitions to us about needs and concerns, and I believe that we're going to be able to come to some kind of balance where...where those concerns are going to be addressed but also address the needs that granted some people may have more thoughts on rather than having `ohana, but dealing with that and having them in the same pile is what...is...is difficult. So, thank you. Mr. Abrew: I understand. Chair Asing: Okay. Any more questions? If not, thank you very much. Is there anyone else? Glenn, please. GLENN MICKENS: Thank you, Kaipo. For the record Glenn Mickens. I...I have a short testimony here, kind of parallels what Rob was asking. You can correct me if I'm wrong and I'm sure you will. If I understand the original purpose of Bill 2322, it was meant to give families or...a chance to build an ADU for members of their families or for future members of their family. I thought that was the purpose that Jimmy Tehada originally made this thing for the `ohana. This original bill makes no provision for restricting ADU to their `ohana. Unless language is put in this bill to make sure that no realtors, developers or speculators can participate in this bill and that the bill should only run with the family and not the land to prohibit selling the property for an inflated price with the ADU COUNCIL MEETING - 35 - October 21, 2009 attached, then the bill is, for me, seriously flawed. I have absolutely no problem with extending this bill for five years as long as amendments are in it to prohibit the above problems from happening. Chair Asing: Coun...Councilmember Kawahara. Ms. Kawahara: Just for a statement for you. The fact that it was called the `Ohana Bill is true and that was the intent. If you read the 1988 letter from the commission, they're unable to control the use to family members. So, the intent... Mr. Mickens: Legally...legally you mean that they...they don't do that. Ms. Kawahara: Legally we are unable to control the use o£..of what they're going to be doing with it. It's unenforceable. Mr. Mickens: So the... Ms. Kawahara: So, the intent of the bill, yes is for `ohana and it's unfortunate. We're hoping that and I'm assuming that people were able to take advantage of it for the right reasons because...cause it's what we have. So I understand your concerns because I want it to be `ohana, for `ohana, but I can't...we cannot (inaudible) say that you can do this. Mr. Mickens: Sure. So Lani, what you're saying is then the bill can't be rewritten to be able to put these things in the bill because of legal restrictions. Ms. Kawahara: Yes. Mr. Mickens: Is that it? Ms. Kawahara: This has been addressed, yes. Mr. Mickens: So the original intent of the bill then can be obviously circumvented because you can...gonna have these flaws in there, right? Ms. Kawahara: Yes, but you're also going to have people that really do need it and will use it. Mr. Mickens: Oh, I understand it and I applaud that particular thing for the bill. 1VIs. Kawahara: And that is...that is... Mr. Mickens: That's the `ohana that you're talking, about. Ms. Kawahara: Right and that's the difficulty that we face in this...in this legislation. Mr. Mickens: Right, right, right, yeah. Ms. Kawahara: So I'm glad you understand that. COUNCIL MEETING. - 36 - • October 21, 2009 Mr. Mickens: Okay. Ms. Kawahara: Yeah. Chair Asing: Thank you. Councilmember Kawakami. Mr. Kawakami: Thank you, Mr. Chair. Thank you, Mr. Mickens. I just have a question of philosophy. If I were to have a piece of land that I lived on and I built another house on my land, is it wrong for me to sell that house? Mr. Mickens: No. Mr. Kawakami: No, okay. Mr. Mickens: But if it's along the lines of this bill, what the intent was, but again legally you can't do it, but if it was along the lines of this bill, it was meant for family to pass it along. Not for a developer to buy 16 units and now they can hold onto it and keep those 16 units and go ahead and you know, sell them off with ADU permits on the things legally. They go ahead and hold onto them. So, you know, they...they've...they've...they're there for profit and that's...that's my only problem with the bill as...as it's now structured. But again, if it's illegal to do it, why there's...I guess you have no choice to be able to do that. Mr. Kawakami: I think it's just one point is that, you know, the original intent, yeah, was so the `ohana could live there, but you know, times have changed too and I think, you know, there's certain cases where people are almost forced to sell their land just to be able to remain on the island, I mean in a lot of cases. And that's...that's the you know, that's the hard part too, yeah, when we weigh those factors in. So, thank you. Chair Asing: Thank you. Thank you, Glenn. Mr. Mickens: Thank you, Kaipo. Chair Asing: Is there anyone else who wants to speak on this item. If not, I'll call the meeting back to order. There being no one else wishing to speak on this item, the meeting was called back to order, and proceeded as follows: Chair Asing: And with that, any... Mr. Kaneshiro: We have a motion on the floor? Chair Asing: Do we have a motion on the floor: I believe we do. We have a second. Any further discussion, councilmembers? Councilmember Furfaro. Mr. Furfaro: Yes, I did want to say or reference when the bill was in my committee that this bill is not perfect. The intent is to kind of put the alphabet back in order here. We're going to be able to cross every T, dot every I. There are some other things that have happened. No one can, in fact, get any other use out of this other than a habitation for occupancy. There is mortgage difficulties now. There are many people that have used what moneys they had to pursue the infrastructure needs to actually get the building permits and as some of the numbers that Rob had indicated of the 375 that filed for a Facilities Use Permit, it COUNCIL MEETING • - 37 - • October 21, 2009 looks like about 79 of them have actually been able to pull a Building Permit, leaving only 274. But it is a difficult time to get the moneys in place to put in a waterline, you know. Mortgage companies now are demanding much more equitiby...equity in the building loans. Where you used to be able to get 10% or 20% equity, you know, you're now upwards of 35% if you're going to take advantage of the current interest rate. So, there's a lot of variables and as I said, I think this is the compassionate way to close the door. Thank you, Mr. Chair. Chair Asing: Thank you. Any further discussion? Ms. Kawahara: Do you want to go first? Chair Asing: Coun...Councilmember Kawahara. Ms. Kawahara: Okay, thank you, Council Chair. This has been a really hard...this has been a struggle for me on this bill, and the reason is it does have a very long legislative history. The intent, as everybody knows, was to have `ohana...be able to have `ohana on your property because everything was so unaffordable at the time. The fact that it's in front of us, I think is a testament to show how important it is for our community to be able...for grandparents to be able and their desire to want to provide something better for their children and for their grandchildren. The testament that it survived this long and gotten this far, I...I truly want to say to people that have hung in there with the hope that they would be able to get something for their children that...that their children would never get otherwise today, is a testament. But I also see that in testimony that we've received and we've heard, the intent of the bill has been lost. It has. There are people that definitely still fall under • the intent of the bill and Councilmember...Council Chair Asing was very eloquent when he said, you know, the intent of this bill has been lost. And through no fault of anybody's except for...except for the fact that time has passed, people have begun to expect that this is a right and not a privilege that was given. Again, this was a limited term offer, as people say, a limited term offer that I think councils that have been before me have been hoping that people that needed it would get it and be able to use it. This is the last swan dance, I think, of this because I don't see any way that this can be justified past this extension. We've reach...we've reached the tipping point. We're exactly what we are afraid of is...is going to happen. The fact that these can be used to speculate will do the very opposite of the original intent of this bill. It will raise the prices of affordable homes. The speculation, unfortunately, is a major component and a fact that...that people will...will speculate and try to get the money that they, you know, think is theirs and that that, you know, rightfully was theirs when they got this special limited term offer. The fact that it's become a point where people expect it when it was never something that they were given for permanent is what bothers me. So I support this extension because I want to give every chance to those people that actually understand and have fallen under the intent of this bill to be able to provide what they want extra, what they want for their children because I think that that time is ending where there is a generation of parents and grandparents that are even able to do that. Because I know most of my family and most of my friends, we have no expectation of getting anything from my...our parents because there is none left. So, the last people here in line, I want to give them every last chance to get it and I...I beg aunties, uncles and grandmas to get it done no matter what because there's no way that I can see that this is going to be justifiable in five more years just because of the risk of the speculation, the risk that...that the density is going to explode. That just is. a fact. I think it's noble and commendable that this bill was here, but the time is over where...where we can expect our COUNCIL MEETING. - 38 - • October 21, 2009 parents, our grandparents to be able to give us something like that. So, councilmembers, Ijust wanted to share that with you. It has been a struggle, so I cannot see any way it could be justified beyond this 2014. Thank you. Chair Asing: I...I cannot help but comment on that and my comment really is...is simple and I'll show a slide to...to demonstrate that. While you can say that and you probably mean it...mean well, that's not what history shows me, and we go back 20 years, 20 years, 20 years and 5 extensions. So, that's what history tells me. Ms. Kawahara: May I... Chair Asing: But anyway, I appreciate... Ms. Kawahara: ...since you're addressing me, yeah? Chair Asing: ...your comments. Ms. Kawahara: You do have a legislative history of your own and your votes, and...and I don't have the luxury of that. This is my statement because I'm stating right now when this...if this ever comes back I'm going to be in your seat where...where it's not going to be acceptable after 20 years. Thank you. Chair Asing: Thank you. Councilmember Kaneshiro, did you want to say anything? Mr. Kaneshiro: You were going to do a...did you say you were going to... Chair Asing: I was going to let everybody talk and I'll... Mr. Kaneshiro: You want to do the presentation? Chair Asing: Okay. Mr. Kaneshiro: I would...I would save my comments until...until the Chair does his presentation. Chair Asing: Let me do this. I'm going to do a short presentation. Short, I don't know how short now. Mr. Kaneshiro: Let's see your presentation. There being no objection, the rules were suspended. Chair Asing: Let me, let me start my presentation by doing this. I want to read to you Act 229, which was enacted in 1981 by the legislature. The legisla...legislature...oh, Peter, turn on the light, please, I cannot see. The legislature recognizes that the spiraling cost of housing, the limited availability of land for housing and the failure of wages to keep pace with inflation contribute to the inability of many families to purchase their own homes. The legislature also recognizes the resulting trend of children living in their parents' homes even after reaching adulthood and after marriage. This trend has positioned the negative aspects. The situation is negative when it is forced upon persons because there is a scarcity of affordable homes. The trend can be positive; however, because it helps COUNCIL MEETING • - 39 - ~ October 21, 2009 preserve the unity of the extended family, the purpose of this act is to assist families to purchase affordable individual living quarters and at the same time to encourage the preservation of the extended family. That bill was passed...that Act was passed in 1981 and this is the key portion to it and let me read it. Neither this section nor any other law, County ordinance or rule shall prohibit construction of two single-family dwelling units on any lot where a residential dwelling unit is permitted. We start this off in 1982 with residential because the law mandates us to do it. We had no choice. And so we passed the first bill. I will also tell you that in 1989 August, the legislature passed Act No. 313. In Act 313 what they did was they took out the word "shall" and put in the word "may" to give the counties back their ability to control their destiny. In the beginning we had no choice. So what happened at that particular time, it...as an example, if you had a subdivision and it was zoned R-4, what the Act did, it changed it. We did not have R-4 any...zoning anymore, it was R-8, and we had no choice. But we passed it then because it was mandatory. Now, what had...what happened in 1989 is we changed and added from the residential only, we added everything else, everything else meaning generally, ag and open. So you could now go into the ag and open areas and put an additional unit if you were allowed one unit. And this was not mandatory. This was something that we did with the same intent and I believe you will find and I won't go through all of the records, you will find the commission back in 1982 voting 6 to 0 to pass onto the Council, do not pass it...do not pass it. But it was passed anyway. So that's the kind of a history behind this and what I'd like to do is just kind of show everybody what it really looks like when we started and the extensions that we've had (see Attachment 1). So with that, Peter. Now if you notice on the very top...well, let me just do this. The top one is...this top is the original which was passed in August of 1982. This is the first so-called `Ghana Bill in 1982 that was passed. This is the one that we were mandated to pass because of Act..., the Act that I...I read off to you and then in March of 1989, this is when the first non- residential, which is what we're "making reference today, starts. So, it actually started in March of 1989 is the first non-residential or we can just use the term that most people use, the ag and open that you can add the second dwelling. And so you can see that we start off here and my comment to Councilmember Kawahara is that, you know, these are the extension...that's the first and then there's one more extension there. There's one more here. So, this is the first extension, second extension, third extension, fourth extension, fifth extension, and we're here today. So, Peter, why don't we just cover each one individual. Okay, this is the first one that was passed and it was passed in August of 1982 and then it was...it...it was in effect. Again, remember this is the residential one. So it was in effect for six years and seven months and then came the original ag portion and this is it here, the non-residential. So, we start with the first non- residential and that was in March of 1989 and the expiration date was December 31, 1991 and so that's two years and nine months. That was approved by Mayor Yukimura. Then we take the next one and the next one is remember the December 31 expiration. Here it comes. On the next bill 594, what you will find is the bill passed the Council, sent to the Mayor. At that time the Mayor was Mayor Yukimura and she vetoed the bill. And the bill was over-ridden by the Council and of course, the extension period was from 1991 to 1993 and that's two more years of extension. COUNCIL MEETING. - 40 - • October 21, 2009 Then we came...we come to the next extension here. This one here was approved by the Council, sent to the Mayor. At that time it was Mayor Yukimura and she let it pass without her signature, and it was extended for three more years to December 1996. Then we have the fourth one and this one here was passed by the Council, approved by Mayor Kusaka in 1996 and in that ordinance we extended it for three more years. Then came the next extension. This time it was passed in November of 1998 and there was no signature by Mayor Kusaka, so she let it pass without signing it. Now, the expiration date, you will notice, is 2006. So that's aseven-year extension. And then comes the one that we just did and the one that we just did, there is an additive to that. We added a number of things in this bill here. We added (1) the lot had to be in existence as of December 31, 2006. This was an attempt by the Council to put some cap that you could not get any...do any lots after this period of time. If it was not in existence, then you will not qualify. We also added the ADU Facilities Clearance Form and that had to be completed by June of 2007. And then we extended the permit so that you could have until December of 2009. So we extended from the seven-year period at the end for another three years. And then, of course, we are here today and if we extend it, it's going to be another five years. This is what is on the books today. So, I just wanted to give you a...a little bit of history as to what has happened over a period of time. With that, Peter, thank you. The meeting was called back to order, and proceeded as follows: Chair Asing: I'd like to make just a couple comments. I think I said earlier that, you know, the intent of the bill, in my opinion, got lost. I didn't agree with it the first time. As a matter of fact looking at my good friend here, Jesse and I were on the Council, and I didn't agree with it the very first time and I voted against it. I believe it went 6 to 1 because I think the intent was faulty to even begin. The first time we did it, in my opinion, was wrong, the very first time. If we did not do that, we wouldn't be, more than likely, here today. Now, I'm going to read to you. This is a workshop on `Ghana Zoning that fir...when...when we passed that first bill in 1988 and I'm just going to read you an excerpt and this is Mr. Nitta. Mr. Nitta is from the Planning Department and Mr. Nitta makes this comment at the workshop that we had here in 1988. Mr. Nitta retired from the Planning Department. He is now retired, considered one of the gurus, I guess, in...in planning, and I want to read to you his comment. And this is in the `Ghana Zoning workshop which was conducted August 16, 1998. Mr. Nitta, State and County, the Land Use Commission Law and our CZO both say that one acre is a minimum ag lot. It seems by passing that law it would be the minimum size. I am not an ag expert, so I wouldn't say if agriculture could work or not, but that is what we have to work with. The second part of your question, I guess deals with where you draw the line as far as when does ag use cease and when does residential use take over? I am just part of the staff of the Department of Planning. But one of the day-to-day problems we deal with as far as land use law is concerned, is that the basic intent...the basic intent of establishing the Ag State Land Use District in 1963 was to preserve ag land. So all of the rules that we worked with the State Land Use Law are basically oriented into preserving ag to maintain the agricultural use. If you want to put a residence on an ag land, it is sort of an accessory use to the primary activity which is agriculture. What is involved since the passing of the law since 1963 is that agricultural land is now being looked upon to supplement the residential areas for residences. Whether that is a healthy trend or not, I do not COUNCIL MEETING ~ - 41 - • October 21, 2009 know because a lot depends on how viable agriculture is right now. The laws that we have to work with are basically oriented to preserving and managing ag land for agricultural use. If you see two houses on a one-acre lot, it tends to raise the question whether it is agriculture or residential. I was going to read to you another excerpt by the former Director of Planning at that particular time, but it is the same type. Again, ag zoned lands should be for ag purposes and we need to keep that in mind. So, I...I just wanted to share that information with you. With that, thank you very much. Councilmember Furfaro. Mr. Furfaro: You'll give me the floor, Mr. Kaneshiro? First of all, Mr. Asing, I want to tell you how much we all value your history on the Council here and many of us, you know, look towards your understanding of the mechanics of bills and, you know, what process and so forth, but you know...you read us these information about philosophies about ag land and I myself I don't know who could make one acre of ag land viable as ag land. It's very...it's a very unfortunate statement, but you know, I'm not that close to the ag industry. But I don't think and especially after Ms. Kawahara's testimony, not too many of us are disagreeing with the points you made. I...I think what we're saying and...and I can say that in the first review back in 2006, the intent of the extensions...I was on the Council when we said this will not apply to any new subdivisions, and that addressed, I think it's Mr. Abrew's comment. It was never intended to go back and create new inventory. So, you know, that's very clear and I appreciate that. I was also part of the Council that said, the control mechanism required us to be compassionate when we shut the doors, that there needed to be a declaration of people's intent, but we couldn't get there until we knew we were close to putting some controls on vacation rental, and therefore, the Facilities Clearance Form was introduced. Also to introduce to us, hey, get a count and tell us what our exposure is because any business decision has to be also measured by the risk. And so we had acut-off point for the Facilities Clearance Form. What I want to say, we're looking at today's bill and I use the word compassion. I think Councilwoman Kawahara talked in terms of people having things that they could pass on to their family, but I really see this as letting it clearly be known this is an exit strategy. This is an exit strategy that we're talking about, and I think as Councilwoman Kawahara stated today and I stated during the committee, I don't have an intent to revisit this in five years. I have an intent to let the public notice we need to have an exit. You referenced in 1990 or 1982 on the ADU `Ghana in the residential areas, but things have even changed there now. The State Department of Health will not allow that to happen in residential areas that are not sewered. So, you know, that...that is kind of a control mechanism as well. The third point is this economic doldrum we're in. Many people who were moving in the 2007 bill knew that they also, because of our lack of providing and...and having funding for facilities that provide an infrastructure, many of them had to put in their own sewer capacity, their own waterlines, and so forth, which in this time is an economic burden. So, my message is very clear. This is the exit strategy. This is not any potential further extension. This is a fair, compassionate notice of how we need to exit from this and be consistent with what the General Plan says, which I do agree with you, Mr. Asing. I just have a different approach on how we need to close the door. Thank you for giving me that time. Chair Asing: Thank you, thank you. Councilmember Kaneshiro. Mr. Kaneshiro: Thank you, Mr. Chair. Basically I'll be supporting this extension because if you look at the bill itself what we're really doing is giving people the opportunity to be able to pick up their building permit by five years more than the specified ordinance. And I think it's appropriate for this time and the way the economy has been. And I believe that in this bill, you know, for many of the COUNCIL MEETING - 42 - • October 21, 2009 applicants that have already applied for the Facility Clearance Forms, there are people that...that are really facing some of this situation. They are probably people that are farmers. They're probably people that are ranchers. They're probably people that are old-time farmers, old-time ranchers that at this point can't continue to do so but would give them the opportunity to at least build an additional unit to be able to help, you know, facilitate having their `ohana or relative come back. So I believe the intent of the bill as first started is still there and unfortunately there were many other circumstances that changed the direction of the bill. You know for me personally, for a person that farms and ranches couple hundred acres of land, you know I...I'm speaking about bigger lands and many of the older families if you look at it ranch bigger lands. They have 40 acres, 50 acres. If you look at the history o£..of how farming years ago took place on the island, it wasn't just aone- acre farm. It was large farming, cattle raising and so forth. So for me, you know, for me if I had the opportunity to do something like this for my kids, it's a great benefit and I would truly do it for my kids so they can support ag and to keep ag there and to keep them there to be able to produce agriculture on their own land. Unfortunately, you know, we gotta make some hard decisions sometimes and you know, I'm here to face that, to say that yeah, we...we can't allow this to happen anymore. A proliferation of residential lots or looking like residential lots on agriculture land, whether it's large lands or small lands, and we have to make the tough decision of you know, going ahead and...and sunsetting an ordinance as such. But I...I believe the intent, though of giving ;the opportunity of five more years for them to get a building permit would also, you know, be able to achieve what we first started off in 1989, I believe when this bill was first passed, and that there are people that will benefit from this bill and at the same time, you know, we got to weigh the options out where there are people that are really going to benefit that are not true farmers. But like Mr. Jay Furfaro said, this is a way of exit, we need to do it, and the time is now and...and we gotta do it. And I...I...I...it's away of exit and I understand, you know, the idea of just shutting it now, but at the same time I think I know there are people that...that still have the original intent when this bill was first started. I think we need to at least give those people the opportunity to be able to do that. Chair Asing: Thank you. Councilmember Kawakami. Mr. Kawakami: Thank you, Mr. Chair. Well, where do I begin? I...I...well, I have a completely different perspective than some of my colleagues and, you know, my...my point is you know we're worrying about speculation, we're worrying about people abusing, but you know at the height of the market when the economy was booming I just didn't hear the horror stories of these type of lots being flipped for a profit. I inquired about it. I didn't hear anything negative come back. It may have happened. I'm not saying it didn't happen. It's just, you know, we're worrying about something that I have no clarity on. I mean if people were going to abuse the system and this opportunity, it would have happened at the height of the market. And I just...I mean I didn't hear too much about it happening. I think it's something good that we should look at within the next five years when this thing comes back to us and when we approve it again because I have every intent, yeah, to support the local families. If they can't build it in five years because I don't know what the market is going to do and to get a loan right now? I mean you gotta be...the guys that are getting loans don't need to get loans anyway. I mean, it's so hard to get a loan right now. At five years, we don't know where the banks are going to be, what their requirements are going to be, and I can tell you for me if I'm here in five years and I got a local family or anybody come and say, things didn't work out, I'm going to grant them the extension because it's not like we haven't accounted for it. We clearly drew a line in the sand saying that this much lots have COUNCIL MEETING • - 43 - ~ October 21, 2009 this entitlement. So we've had to account for it. This is something that we know it's going to happen and you know as far as the fear of speculation, the fear...you know there's always people that are going to let greed, yeah, kind of ruin it. But in essence, yeah, I'm not saying it's right, but it is the American way to create opportunity. So, you know, I'm torn because I need to get some data on whether or not this was truly being abused. I didn't hear the horror stories about people, you know, at the height, you know, taking this ag lots and just flipping it and...and making tons of money off of it. But I've heard, yeah, the local families call me up. They don't write letters to the Council. They don't show up at the meetings. It's not their style, but they will call you or they'll stop you on the side of the road and say, eh, you know, this is going to affect me in this way, and so I take that into account. So, you know, in five years, yeah, I plan to support it again. We've already accounted for the amount of properties that have this entitlement. You know, if it's going to benefit local people, if it's going to benefit anybody, yeah, I want to see it happen. Okay, thank you. Chair Asing: Thank you. Councilmember Bynum? Mr. Bynum: I think this is a very fascinating discussion and as I've said before, and I...gosh, I so much appreciate the presentation that our Chair did today, you know, and the quotes that he read from Mr. Nitta. Mr. Nitta's somebody who's retired but still contributes his mana`o and somebody that I've spent time with and learned a lot about the history not only from the Chair but from Mr. Nitta. But there's no question in my mind that proliferation of de facto residential on agricultural lands was not a good thing for Kauai. I always have to do a disclaimer because I live on an ag lot and I learned a lot about this process just from being one of those families that looked for opportunity and the opportunity was on ag. It wasn't in residential lots. I would have been happy to live in the Wailua House Lots where I did, but there were no houses for sale. But there were ag lots for sale because the way we were structured made it easier for people to do subdivisions on agricultural land, which had little or nothing to do with agriculture, and that's the lots that were available. In that era, there were a lot of local families that benefited from that even though it may not have been a good planning choice. But...the values on these lots skyrocketed to where ag lots now are not available to working class families and it's not assisting it. And this became...you know Mr. Asing was wise enough to see the difficulties at the very beginning of this, but they got astronomical, not just from ADUs, but from liberal densities on ag and no criteria, no simple criteria that says what Mr. Nitta was quoted as saying, that when you subdivide ag, it should be for ag. If it's not, then you can rezone. We have a mechanism for that, you go through rezoning. I...this became such a critical issue that by the General Plan in 2000 I thought the timing of this was very interesting in terms of there was aseven-year extension in 1998-1999. That was right when we were working on the General Plan, which we are currently operating under which clearly says, there's a whole chapter devoted to this, we need to stop using agricultural land for other than agricultural purposes. We need to close these giant loopholes. I appreciate the wisdom of the Council that was here literally the week before I was sworn in that did what Mr. Furfaro has said, a compassionate and thoughtful closing of the door. ADU was step one, vacation rentals we're still squabbling over, but we did draw that line in the sand and say no new ones on ag or in residential; they need to be in the VDA. The General Plan contemplates other changes that the County needs to do to go back to that fundamental idea that if you subdivide ag, it's for ag. If you have ag land that you think is appropriate for residential, we have a public process that you can make that argument, go through, you know, Planning Commission and the State Land Use Board, and...and rezone. And there certainly are ag lands that we should rezone into urban consistent with COUNCIL MEETING. - 44 - • October 21, 2009 our community development plans, which we are finally in process doing. So, this is a logical step that the Council took. Vacation rental regulation was a logical step. We have bills coming before us soon which are other steps that the General Plan asked us to take. And so, you know, I...I think this was a very interesting dialog and a very important one, and I've learned a lot from Mr. Asing and Mr. Nitta and other councilmembers about doing proper stewardship of Kauai going forward in terms of agricultural lands and other lands. Where is it that we put residential development? How do we make affordable housing? These are the...the most critical issues that the Council faces, in my opinion. So, I am going to support this bill because it is a step in closing that door and getting back to proper planning for these kind of issues. Thank you very much, Mr. Asing. Chair Asing: Thank you. Any further discussion? Councilmember Kawahara. Ms. Kawahara: Just for future...for the future when this...I...I don't want to see this again. I...I want to...I've learned through this process how very careful what...what we need as a body to be about spot cleaning, spot legislating for a specific time period. The way...the right way to do it is as Councilmember Bynum has said is through zoning. That is the fairest way, that is the proper way of planning. The crisis that occurred in 1988, the Planning Department, the Planning Commission were vociferous and very correct in not approving and recommending this. But it was the Council that had to find a way to the middle to address what the people were going through. And as...as we are here now, there is no question to me that it was a mistake, but it is where we are now and this is our exit strategy, as Councilmember Furfaro has so well stated. There has to be an exit strategy and this is it. And this is the end, that's it. And I'm again, I'm telling those people that are using this with the proper intent to do it because it is not coming around again. Thank you. Chair Asing: Thank you. Any further discussion? I just want to close by...I guess every time I hear something I tend to get a little antsy, I guess. I guess when you make reference, Lani, to, you know, the Council in 1988, 1989 making that decision and trying to find a balance, I have to tell you if you look at the...the history and you look at all the reports and statistics and information available, you will find that at that particular time there was like 4,500 lots in the ru...not rural, the residential area that you could add another housing, another house on. So, it's...why do you go in ag then? You have available here. You got 4,500 lots that you can put additional units on because the law is there for you to do it. Why are you going in ag and open? Why? What's the rationale? There's no rationale. And that was what I'm making reference to. It's just then you had the ability to do it and you went here. Now, if you look some of the...at some of the records, you will find that, you know, I...I made statements, as an example, like why would you want to do additional...an additional dwelling unit in open space, not open space, open zone? And I took as an example and did Hanalei. Hanalei Bay, the whole front of Hanalei Bay area, that's all open zone and you were allowed one house on that lot. What you did, you opened up this area, now you put another house in that...on those lots. So what do you have today? What have we created? We have created this Hanalei that if I bring the map up here and show you, that's what you've created. We said the lots for people who can afford, that's not what happened. Those lots are vacation rentals, those lots are second homes. So, you know, i...it's...it don't pan out, it don't pan out. So, anyway, I...I...with great hesitancy, I will be supporting the bill. And the two main reasons I'm supporting the bill and I supported the bill in 2006 because you have two distinct areas that is covered, and that is that the lot in existence as of December 31, 2006. In other words, there was this Council and I voted yes and that's the reason, 2006, that's it, COUNCIL MEETING - 45 - October 21, 2009 if you did not have a lot then, no more. So that's cut. You also had the AD...ADU Facilities Clearance Form and that had a date of June 15, 2007. So you have this form that was signed in 2007. If you don't have that, you have no right. So, you have two things that we did, and I agree. I agreed with it then and those are really my motivation for saying, well, I don't like it, I think it's wrong, but, you know, I...I...I'll go with it because at least we've closed the door on future, no lots and if you did not have a form, then you don't qualify. So, with that, any further discussion? If not, roll call. The motion to approve Bill No. 2322 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Mr. Nakamura: Council Chair? Council Chair, we have one...one more bill for second reading. Chair Asing: Oh, okay. Mr. Nakamura: The last bill for second reading on page 6 of the Council's agenda is Bill No. 2323. Bill No. 2323 - 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 THROUGH JUNE 30, 2010, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($132,000 - Moana Kai (Fujii Shoreline Design/Permit): Mr. Bynum moved for adoption of Bill No. 2323 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Furfaro, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION:. None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. ADJOURNMENT: There being no further business, the meeting was adjourned at 12:44 p.m. Respectfully submitted, ...-- PETER A. NAKAMURA County Clerk /wa ADDITIONAL' DWELLING UNIT ORDINANCES TIMELINE ORIGINAL RESIDENTIAL ZONE "ADU" ORDINANCE Ord. No. 430 Amended: Approved by Mayor Malapit on: March 8, 1989 August 17, 1982 .- ~ 6 YEA, ;RS '7 MONTHS NON-RESIDENTIAL ZONE "ADU" ORDINANCES 1st Ord. No. 551 Expire: Approved by Mayor Yukimura on: December 31, 1991 March 8, 1989 2 YEARS' & 9_MONTHS` 2nd Ord. No. 594 Expire: Veto by Mayor Yukimura on: Sept. 25, 1991; Override by Council on: December 31, 1993 October 23, 1991 2 YEARS ~ 3rd Ord. No. 644 Expire: Approved with no signature by Mayor Yukimura on: December 31, 1996 December 13, 1993 3.YE~9~RS 4th Ord. No. 707 Expire: Approved by Mayor Kusaka on: December 31, 1999 August 15, 1996 . 3 YEA`:RS 5th Ord. No. 729 Expire: Approved with no signature by Mayor Kusaka on: December 31, 2006 November 27, 1998 7 YEARS' 6th Ord. No. 843 Expire: Approved by Mayor Baptiste on. December 15, 2009 November 22, 2006 1) Lot to be in existence as of December 31, 2006 2) Need ADU Facilities Clearance Form by June 15, 2007 3) Need Building Permit by December 15, 2009 3 YEARS 7th Bill No. 2322 Building Permit Deadline. December 15, 2014 5 YEARS NT 1