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COUNCIL MEETING
July 28, 2010
The Council Meeting of the Council of the County of Kauai was called to
order by the Council Chair at the Council Chambers, 3371-A Wilcox Road, Lihu`e,
Kauai, on Wednesday, July 28, 2010 at 10:33 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
PETER A. NAKAMURA, County Clerk: First matter is approval of the
agenda.
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.
Mr. Nakamura: Next matter is approval of the Minutes of the
following meetings of the Council.
MINUTES of the following meetings of the Council:
Special Council Meeting of July 7, 2010
Public Hearing of July 14, 2010 re: Bill No. 2365
Mr. Bynum moved for approval of the minutes as circulated, seconded by
Mr. Kaneshiro, and unanimously carried.
Chair Asing: Next item please.
Mr. Nakamura: Next matters are Communications for receipt on
page one of the council's agenda, communication C 2010-198, C 2010-199, and
C 2010-200. I'm sorry, Council Chair, correction. For receipt is just communication
C 2010-198 and 200.
COMMUNICATIONS:
C 2010-198 Communication (07/09/2010) from the Council Chair,
transmitting for Council consideration the following Council appointees:
• David Helder -Kauai Historic Preservation Review Commission
• Maurice Nakahara -Public Access, Open Space, Natural Resources
Preservation Fund Commission
Mr. Chang moved to receive C 2010-98 for the record, seconded by Mr. Kaneshiro,
and unanimously carried.
COUNCIL MEETING ~ - 2 - ~ July 28, 2010
C 2010-200 Communication (07/22/2010) from the Director of Finance,
transmitting for Council consideration, a $70,000.00 appropriation from the surplus
and appropriations estimated in the General Fund for additional matching funding
for the Hanapepe Walkway and Bridge Improvement Project: Mr. Chang moved to
receive C 2010-200 for the record, seconded by Mr. Kaneshiro, and unanimously
carried.
Chair Asing: Next item please.
Mr. Nakamura: Next matter is a communication for approval on
page one of the council's agenda, communication C 2010-199.
C 2010-199 Communication (07/06/2010) from the Prosecuting Attorney,
requesting Council approval to apply for, receive, and expend $40,854.00 from the
Edward J. Byrne Memorial Justice Assistance Grant, FY 2010 Local Solicitation
Subpoena Services Grant, to contract with a private company to provide a) process
serving for the Office of the Prosecuting Attorney, and b) training to the Kauai
Police Department, commencing October 1, 2010 through September 30, 2013:
Mr. Furfaro moved to approve C 2010-199, seconded by Mr. Chang, and
unanimously carried.
Chair Asing: Next item please.
Mr. Nakamura: Next matters on page two of the council's agenda,
communications for receipt, communication C 2010-201, C 2010-202, C 2010-203,
C 2010-204, C 2010-205, and C 2010-206.
C 2010-201 Communication (07/22/2010) from the Director of Finance,
transmitting for Council consideration, a $76,000.00 appropriation from the surplus
and appropriations estimated in the General Fund to support the Solid Waste Fund
(automated refuse software, maintenance, and support and training): Mr. Chang
moved to receive C 2010-201 for the record, seconded by Mr. Kaneshiro.
C 2010-202 Communication (07/22/2010) from the Director of Finance,
transmitting for Council consideration, a $400,000.00 appropriation from the
surplus and appropriations estimated in the CIP Project Contingency for equipment
costs paid for the Historic County Building Renovation project: Mr. Chang moved to
receive C 2010-202 for the record, seconded by Mr. Kaneshiro.
C 2010-203 Communication (07/22/2010) from the Director of Finance,
transmitting for Council consideration, a $822, 391.00 appropriation to the Solid
Waste Fund and $603,121.00 to the Sewer Fund from the surplus and
appropriations estimated in the General Fund for debt service costs as a result of
the County's 2010 Bond Issuance: Mr. Chang moved to receive C 2010-203 for the
record, seconded by Mr. Kaneshiro.
C 2010-204 Communication (07/01/2010) from the County Engineer,
requesting Council consideration to amend the FY 2010-2011 Operating Budget by
appropriating $200,000.00 from the surplus and appropriations estimated in the
General Fund for the construction of a replacement sewer line at the intersection of
Waialo Road and Kaumuali`i Highway: Mr. Chang moved to receive C 2010-204 for
the record, seconded by Mr. Kaneshiro.
COUNCIL MEETING • - 3 - • July 28, 2010
C 2010-205 Communication (07/22/2010) from Councilmember Furfaro,
transmitting for Council consideration, a $95,000.00 appropriation from the surplus
and appropriations estimated in the General Fund for unanticipated costs to restart
the Kekaha Host Community Benefits Program Citizens' Advisory Committee
process: Mr. Chang moved to receive C 2010-205 for the record, seconded by
Mr. Kaneshiro.
C 2010-206 Communication (07/22/2010) from Councilmember Kawakami,
transmitting for Council consideration, a proposal to amend the FY 2010-2011
operating budget provisos to authorize the Director of Finance to utilize the accrued
interest from the Kekaha Host Community Benefits (HCB) account for the Kekaha
HCB grant program: Mr. Chang moved to receive C 2010-206 for the record,
seconded by Mr. Kaneshiro.
Chair Asing: Any discussion? Hang on, please. I'd like to
suspend the rules. Mr. Taylor.
There being no objection, the rules were suspended.
KEN TAYLOR: Chair and members of the council, my name is Ken
Taylor. The concern I have here with all of this, here we are not even a month into
the new year and we're already having to dip into surplus for all these issues. Now,
my question is why, when we just went through a couple months ago the budget
hearings, why all of a sudden some round numbers here about $2 million that just
are now coming up and why weren't these issues dealt with during the budget
hearings? Thank you.
Chair Asing: Thank you. Is there anyone else who wants to
speak on any of the items mentioned? If not, I'd like to call the meeting back to
order.
There being no else wishing to speak, the meeting was called back to order, and
proceeded as follows:
Chair Asing: We have a motion on the floor to receive these
items. Any further discussion? All, those in favor, say aye.
The motion to receive C 2010-201, C 2010-202, C 2010-203, C 2010-204, C 2010-205,
and C 2010-206 for the record was then put, and unanimously carried.
Chair Asing: Next item please.
Mr. Nakamura: On page three of the council's agenda are legal
documents for approval. First legal document is attached to communication C 2010-
207.
LEGAL DOCUMENTS:
C 2010-207 Communication (07/09/2010) from the Executive on Aging,
requesting Council approval to indemnify the Kapa`a United Church of Christ for
use of their social hall for the EnhanceFitness program for seniors 60 years and
older, as follows:
• Indemnification Agreement (to protect the Church and its Agents
from incurring any monetary or property losses resulting from
allowing others to use the Church facilities).
COUNCIL MEETING • - 4 - • July 28, 2010
Mr. Bynum moved to approve the legal document attached to communication
C 2010-207, seconded by Mr. Kaneshiro, and unanimously carried.
Chair Asing: Next item please.
Mr. Nakamura: Next legal document for approval is attached to
communication C 2010-208.
C 2010-208 Communication (07/14/2010) from the Director, Department of
Parks & Recreation, recommending Council approval to establish the terms of
purchase pending final subdivision of the parcel and transfer of title for the
Lydgate-Kapa`a Shared-Use Path, as follows:
• Purchase Agreement between the County of Kauai, through its
Department of Public Works, and the Apartment Owners of Kapa`a
Sands, for approximately 2,134 square feet of land (TMK (4) 4-3-
02:02).
Mr. Bynum moved to approve the legal document attached to communication
C 2010-208, seconded by Mr. Kaneshiro, and unanimously carried.
Chair Asing:
Mr. Nakamura:
communication C 2010-209.
CLAIM:
Next item please.
Next matters are Claims. The claim is
C 2010-209 Communication (07/13/2010) from the County Clerk,
transmitting a claim filed against the County of Kauai by Guy Ruiz for damage to
his vehicle, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro
moved to refer C 2010-209 to the County Attorney's Office for disposition and/or
report back to the Council, seconded by Mr. Bynum, and unanimously carried.
Chair Asing: Next item please.
Mr. Nakamura: Next matters for approval are Committee Reports,
from your Committee on Planning, Committee Report CR-PL 2010-13.
COMMITTEE REPORTS:
A report (No. CR-PL 2010-13) submitted by the Planning Committee,
recommending that the following be approved as amended:
"Bill No. 2364 - A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING
TO THE COMPREHENSIVE ZONING ORDINANCE (Transient Vacation
Rentals),"
Mr. Kaneshiro moved for approval of the report, seconded by Mr. Furfaro, and
unanimously carried. (See later for Bill No. 2364, Draft 1)
Chair Asing: Next item please.
Mr. Nakamura: From your Committee on Public Works/Elderly
Affairs, Committee Report CR-PWE 2010-09.
COUNCIL MEETING • - 5 - • July 28, 2010
A report (No. CR-PWE 2010-09) submitted by the Public Works/Elderly
Affairs Committee, recommending that the following be approved:
"Bill No. 2365 - A BILL FOR AN ORDINANCE AMENDING
SECTION 21-1.3, SECTION 21-2.1, SECTION 21-2.2, SECTION 21-3.2,
SECTION 21-3.3, SECTION 21-7.3, AND SECTION 21-9.1 OF THE KAUAI
COUNTY CODE 1987, RELATING TO INTEGRATED SOLID WASTE
MANAGEMENT,"
Mr. Kaneshiro moved for approval of the report, seconded by Mr. Furfaro, and
unanimously carried. (See later for Bill No. 2365)
Chair Asing: Next item please.
Mr. Nakamura: Next matters for approval on page four of the
council's agenda are Resolutions. First resolution is Resolution 2010-42.
RESOLUTIONS:
Resolution No. 2010-42, RESOLUTION CONFIRMING COUNCIL
APPOINTMENT TO THE KAUAI HISTORIC PRESERVATION REVIEW
COMMISSION (David Ernest Helder, Architecture History, term
ending 12/31/2012): Mr. Furfaro moved to adopt Resolution 2010-42, seconded by
Mr. Chang, 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: Next item please.
Mr. Nakamura: Last resolution for approval is Resolution
No. 2010-43.
Resolution No. 2010-43, RESOLUTION CONFIRMING COUNCIL
APPOINTMENT TO THE PUBLIC ACCESS, OPEN SPACES, NATURAL
RESOURCES PRESERVATION FUND COMMISSION (Maurice Shizuo Nakahara,
At-Large, term ending 05/01/2011): Mr. Furfaro moved to adopt
Resolution 2010-43, seconded by Mr. Chang.
Chair Asing: Any discussion? If not, roll call please.
Mr. Nakamura: Councilmembers Bynum...
Chair Asing: Hang on. Before we have the roll call, I just want
to thank both David Helder and Maurice Nakahara for their willingness to serve,
especially in a volunteer position to be very helpful to the community. So I'd like to
just thank them very much for stepping up. With that, can I have the roll call
please.
COUNCIL MEETING • - 6 - • July 28, 2010
The motion to adopt Resolution No. 2010-43 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.
Chair Asing:
Next item please.
Mr. Nakamura: Next matters on page four of the council's agenda
are Bills for First Reading. First bill for first reading is Proposed Draft Bill
(No. 2369).
BILLS FOR FIRST READING:
Proposed Draft Bill (No. 2369) - AN ORDINANCE AMENDING
ORDINANCE NO. B-2010-706 AS AMENDED, RELATING TO THE CAPITAL
BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL
YEAR JULY 1, 2010 THROUGH JUNE 30, 2011, BY REVISING THE SURPLUS
AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($70,000.00 -
Hanapepe Bridge Pedestrian Walkway Repairs)
Mr. Furfaro: Excuse, Mr. Chair, I was just glancing over the
audience to see if somebody is here from administration or finance as we go into the
next sequence. Is there anybody here? Mr. Heu? Wally Rezentes?
Chair Asing: No, we're going to take a five-minute recess
because we're going to look for the administration.
Mr. Furfaro: Okay.
Chair Asing: I believe they're around but evidently not in the
audience right now. So we're going to take afive-minute recess.
There being no objection, the meeting was recessed at 10:42 a.m.
The meeting was called back to order at 10:51 a.m., and proceeded as follows:
Chair Asing:
Mr. Clerk.
The meeting is now called back to order. With that,
Mr. Nakamura: Council Chair, we're on page four of the council's
agenda on bills for first reading. First bill for first reading is Proposed Draft Bill
(No. 2369), which is an ordinance amending Ordinance No. B-2010-706, as
amended, relating to the capital budget of the County of Kauai, State of Hawaii, for
the fiscal year July 1, 2010 through June 30, 2011, by revising the surplus and
appropriations estimated in the general fund ($70,000.00 - Hanapepe Bridge
Pedestrian Walkway Repairs).
Chair Asing: Thank you. Can I have a motion?
Mr. Bynum: Move to approve on first reading, schedule public
hearing for August 25 and refer to Budget & Finance.
Mr. Kaneshiro: Second.
COUNCIL MEETING • - 7 - • July 28, 2010
Mr. Bynum moved for passage of Proposed Draft Bill (No. 2369) on first reading,
that it be ordered to print, that a public hearing thereon be scheduled for
August 25, 2010, and that it thereafter be referred to the Budget & Finance
Committee, seconded by Mr. Kaneshiro.
Chair Asing: Any discussion? Anyone in the audience who wants
to speak on this item? Glenn please. The rules are suspended.
There being no objection, the rules were suspended.
GLENN MICKENS: Thank you, Kaipo, for the record Glenn Mickens. I
just thought Ken asked a great question relating to this thing. I didn't hear
anybody answer it. I thought maybe somebody from the administration would.
What happened to this in the budget hearing? Why hasn't money been
appropriated in the budget hearing for this? Why are we...why are we...one...about
one month now into the fiscal year and we're asking for almost... now this one bill
here is seventy thou...we're asking for almost $2 million out of our general fund, I'm
just wondering, does somebody have an answer to that or again will administration
be here to answer that question?
Chair Asing: Okay, we'll take care of that later, Glenn.
Mr. Mickens: Thank you.
Chair Asing: Any other questions? Anyone else? If not, I'd like
to call the meeting back to order.
There being no one else wishing to speak, the meeting was called back to order, and
proceeded as follows:
Chair Asing: We have a motion on the floor. Any further
discussion? If not, roll call please.
Mr. Nakamura: Councilmembers Bynum?
Mr. Bynum: Aye.
Mr. Nakamura: Chang?
Mr. Chang: Aye.
Mr. Nakamura: Furfaro?
Mr. Furfaro: Aye, I just want to double check the public meeting
was for August 25?
Mr. Nakamura: Public hearing is August 25th.
Chair Asing: Yes.
Mr. Furfaro: Aye.
Mr. Nakamura: Kaneshiro?
Mr. Kaneshiro: Aye.
Mr. Nakamura: Kawahara?
COUNCIL MEETING • - 8 -
Ms. Kawahara: Aye.
Mr. Nakamura: Kawakami?
Mr. Kawakami: Aye.
Mr. Nakamura: Chair Asing?
Chair Asing: Aye.
• July 28, 2010
The motion for passage of Proposed Draft Bill (No. 2369) 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: Next item please.
Mr. Nakamura: The next bill for first reading is Proposed Draft Bill
(No. 2370).
Proposed Draft Bill (No. 2370) - AN ORDINANCE AMENDING
ORDINANCE NO. B-2010-705 AS AMENDED, RELATING TO THE OPERATING
BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL
YEAR JULY 1, 2010 THROUGH JUNE 30, 2011, BY REVISING THE SURPLUS
AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($76,000.00 -
Contribution to Solid Waste Fund): Mr. Kaneshiro moved for passage of Proposed
Draft Bill (No. 2370) on first reading, that it be ordered to print, that a public
hearing thereon be scheduled for August 25, 2010, and that it thereafter be referred
to the Budget & Finance Committee, seconded by Mr. Bynum.
Chair Asing: Any discussion? Glenn. The rules are suspended.
There being no objection, the rules were suspended.
GLENN MICKENS: For the record, again Glenn Mickens. Thank you,
Kaipo. I'm just wondering, you know, we keep on pumping this money into this
solid waste fund. Is it ever going to be a true enterprise fund? You know, that's
another question I don't know if you'll answer it or not. Maybe you won't, but
somebody should have an answer. Is it ever going to be a true enterprise fund
where, you know, the amount going out equals the amount coming in or are we
going to keep on putting millions of dollars into this solid waste fund? You know,
again, we call it an enterprise fund, but it's not an enterprise fund. So I just
wondered if you had an answer or if somebody could give us an answer.
Chair Asing: Yes, go ahead, Councilmember Bynum.
Mr. Bynum: Avery large expense for the county is to deal with
our solid waste appropriately. I don't believe, in my opinion, it'll ever...we will ever
collect fees that are equivalent to the cost of solid waste and so, you know I guess
the answer would be no. And to address your other concern, most of the items in
this list that we're trying to get through to get to the big business we have today,
were anticipated in the budget and these are kind of housekeeping items about
moving it from the general fund into the appropriate fund. But it was not
COUNCIL MEETING • - 9 - • July 28, 2010
unanticipated, right. The exception might be the Hanapepe Walkway where it's a
really important project for Hanapepe and you know, it's a...we needed some
additional funds to do the matching funds. But most of this...right, so I hope I
answered your questions.
Mr. Mickens: Well, basically then we can stop calling it an
enterprise fund. Is that true?
Mr. Bynum: I don't know that we call it that.
Mr. Mickens: Well, that's what it's called now.
Mr. Bynum: But in the county, solid waste gets a large
contribution from the general fund and always has because it's an expensive
proposition.
Mr. Mickens:
Right.
Mr. Bynum: And we've adopted a solid waste plan to try to
improve our handling over the next few years, so it'll be a common topic at the
council as we roll out a better way to handle our solid waste.
Mr. Mickens: Well, as you say, if that is a fact, then fine, okay,
but let's...let's call it what it is then. It's just going to be a perpetual tax fund that
we're going to have to keep putting the money into, right?
Mr. Bynum: I've done the best to answer your questions.
Mr. Mickens: Okay.
Chair Asing: Councilmember Furfaro.
Mr. Furfaro: Yes. Glenn, I've answered your question before. I
think I came out and said I think this is overstated as an enterprise fund. You've
heard me say that before.
Mr. Mickens: Yes.
Mr. Furfaro: And I still stand by that. Okay, I hope that
answers your question. But the other thing and most important here is this is the
first step for us to incrementally evaluate the possibility of recovering funds for
solid waste and eventually we will have software that identifies people's tax rates
and bills. Then just like in California...
Mr. Mickens: Right.
Mr. Furfaro: They have an area where they then charge you for
school board.
Mr. Mickens: Yes.
Mr. Furfaro: But we don't have that here. The state is the
school board. You can have a piece for refuse removal, which will show up whether
it's $6.50 a month for the first time we increment it, but eventually in this plan, as
we hope we're reversing cost to identify the collection fees, it'll eventually be in a
bill that you get, and it'll separate it out. Can we go from $12 million is what it cost
us to run solid waste here and we subsidize it right now by about $8 million from
COUNCIL MEETING • - 10 - • July 28, 2010
the general fund, can we ever get to the point that you were discussing with
Mr. Bynum? I don't think so. Are we started out on the path to try to lessen that
burden? Then this is what we're doing. I hope that answers your question.
Mr. Mickens: Yes, thank you, Jay.
Chair Asing: Thank you. Is there anyone else? If not, I'd like to
call the meeting back to order.
There being no one else wishing to speak, the meeting was called back to order, and
proceeded as follows:
Chair Asing: We have a motion on the floor and a second. Any
further discussion? If not, roll call please.
The motion for passage of Proposed Draft Bill (No. 2370) 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: Next item please.
Mr. Nakamura: Next bill for first reading is Proposed Draft Bill
(No. 2371).
Proposed Draft Bill (No. 2371) - AN ORDINANCE AMENDING
ORDINANCE NO. B-2010-706 AS AMENDED, RELATING TO THE CAPITAL
BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL
YEAR JULY 1, 2010 THROUGH JUNE 30, 2011, BY REVISING THE SURPLUS
AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($400,000.00 -
Project Contingency): Mr. Bynum moved for passage of Proposed Draft Bill
(No. 2371) on first reading, that it be ordered to print, that a public hearing thereon
be scheduled for August 25, 2010, and that it thereafter be referred to the Budget &
Finance 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: Next item please.
Mr. Nakamura: Next bill for first reading is Proposed Draft Bill
(No. 2372).
Proposed Draft Bill (No. 2372) - AN ORDINANCE AMENDING
ORDINANCE NO. B-2010-705 AS AMENDED, RELATING TO THE OPERATING
BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL
YEAR JULY 1, 2010 THROUGH JUNE 30, 2011, BY REVISING THE SURPLUS
AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($822,391.00 -
Solid Waste Fund; $603,121.00 -Sewer Fund): Mr. Bynum moved for passage of
Proposed Draft Bill (No. 2372) on first reading, that it be ordered to print, that a
COUNCIL MEETING • - 11 - • July 28, 2010
public hearing thereon be scheduled for August 25, 2010, and that it thereafter be
referred to the Budget & Finance 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:
Next item please.
Mr. Nakamura: On page five of the council's agenda, we're on
Proposed Draft Bill (No. 2373).
Proposed Draft Bill (No. 2373) - AN ORDINANCE AMENDING
ORDINANCE NO. B-2010-705 AS AMENDED, RELATING TO THE OPERATING
BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL
YEAR JULY 1, 2010 THROUGH JUNE 30, 2011, BY REVISING THE SURPLUS
AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($200,000.00 -
Sewer Fund, `Ele`ele Main Replacement, Waialo Road & Highway): Mr. Furfaro
moved for passage of Proposed Draft Bill (No. 2373) on first reading, that it be
ordered to print, that a public hearing thereon be scheduled for August 25, 2010,
and that it thereafter be referred to the Budget & Finance 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: Next item please.
Mr. Nakamura: Next bill for first reading is Proposed Draft Bill
(No. 2374).
Proposed Draft Bill (No. 2374) - A BILL FOR AN ORDINANCE TO AMEND
ORDINANCE NO. B-2010-705, AS AMENDED, RELATING TO THE OPERATING
BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII FOR THE FISCAL
YEAR JULY 1, 2010 THROUGH JUNE 30, 2011 BY REVISING THE SURPLUS
AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($95,000.00 -
Solid Waste -Host Community Benefit (CAC Process))
Mr. Furfaro: Thank you. I would like to move to approve, but I
will have an amendment to discuss, if I can get a second.
Chair Asing: Can I have a second on the approval.
Mr. Bynum: Second.
Chair Asing: Okay, with that, can I have the amendment now,
please.
Mr. Furfaro: Yes, I'd like to offer this amendment, introduce it
as really a better narrative relating to this $95,000.00 as a not to exceed number,
but also expanding the current survey and making sure the materials that we've
had to this date are incorporated iri this process. Is that amendment... is it
circulating?
COUNCIL MEETING. - 12 - • July 28, 2010
Mr. Nakamura: Mr. Chair, just to clarify, if we could get the motion
on the...the main motion to include the approval on first reading, the public hearing
on August 25th and the referral to the Budget and Finance Committee.
Mr. Furfaro: That's correct. Refer to Budget & Finance and then
I've just introduced this amendment.
Mr. Furfaro moved for passage of Proposed Draft Bill (No. 2374) on first reading,
that it be ordered to print, that a public hearing thereon be scheduled for
August 25, 2010, and that it thereafter be referred to the Budget & Finance
Committee, seconded by Mr. Bynum.
Chair Asing: Okay.
Mr. Bynum: Second.
Mr. Furfaro moved to amend Proposed Draft Bill .(No. 2374), as shown in the Floor
Amendment attached hereto (Attachment No. 1), seconded by Mr. Kaneshiro.
Mr. Furfaro: Yes, thank you.
Chair Asing: Go ahead.
Mr. Nakamura: And now we're on the amendment.
Chair Asing: We're on the amendment now. Is there any
discussion on the amendment? If not, go ahead, Councilmember Bynum.
Mr. Bynum: Yeah, I appreciate this amendment because it just
makes it more clear that we're not restarting a process, but extending a process, so
thank you.
Chair Asing: Okay, any further discussion? If not, all those in
favor, say aye.
The motion to amend Proposed Draft Bill (No. 2374), as shown in the Floor
Amendment (Attachment No. 1), was then put, and unanimously carried.
Chair Asing: That was on the amendment. We're now back to
the main motion as amended. Is there any further discussion on the main motion
as amended? If not, roll call please.
The motion for passage of Proposed Draft Bill (No, 2374) as amended on first
reading, that it be ordered to print, that a public hearing thereon be scheduled for
August 25, 2010, and that it thereafter be referred to the Budget & Finance
Committee 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: Next item please.
Mr. Nakamura: Last bill for first reading is Proposed Draft Bill
(No. 2375).
COUNCIL MEETING ~ - 13 - • July 28, 2010
Proposed Draft Bill (No. 2375) - AN ORDINANCE AMENDING
ORDINANCE NO. B-2010-706, AS AMENDED, RELATING TO THE CAPITAL
BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII FOR THE FISCAL
YEAR JULY 1, 2010 THROUGH JUNE 30, 2011 BY REVISING THE BUDGET
PROVISIONS (Kekaha Host Community Benefits accrued interest account):
Mr. Kawakami moved for passage of Proposed Draft Bill (No. 2375) on first reading,
that it be ordered to print, that a public hearing thereon be scheduled for
August 25, 2010, and that it thereafter be referred to the Budget & Finance
Committee, seconded by Mr. Furfaro.
Chair Asing:
Mr. Kawakami:
Chair Asing:
Any discussion?
Yes, Mr. Chair.
Yes, go ahead.
Mr. Kawakami: Thank you, Mr. Chair. You know, the people of
Kekaha have spoken. They wish to have their money put into an account where
they could accrue interest and build their funds. So this proposed bill does exactly
that and I'd like to thank former councilmember Ron Kouchi who actually
introduced the opportunity and brought this to my attention and also the
administration, the finance director, who was kind of planning to put it into an
account, but they needed the council's approval to move the interest into the host
community benefit account for the people of Kekaha.
Chair Asing: Thank you. Any further discussion? Yes,
councilmember Furfaro:
Mr. Furfaro: Yes, thank you, since we have two bills on Kekaha
today, one reestablishing money for the CAC and of course, Mr. Kawakami's
introduction of the interest earning account, I just want to make certain that we
have a regular reporting system for the interest earned in a special account and I
think we have the administration's attention to that, and I just want to thank
Mr. Kawakami.
Chair Asing: Thank you. Any further discussion? If not, roll call
please.
The motion for passage of Proposed Draft Bill (No. 2375) on first reading, that it be
ordered to print, that a public hearing thereon be scheduled for August 25, 2010,
and that it thereafter be referred to the Budget & Finance Committee 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: With that, what I'd like to do is take the caption
break now before we get to bills for second reading.
There being no objection, the meeting was recessed at 11:06 a.m.
The meeting was called back to order at 11:29 a.m., and proceeded as follows:
COUNCIL MEETING. - 14 - ~ July 28, 2010
Chair Asing: This meeting is now called to order. Mr. Clerk, we
have bills for second reading, we have the transient vacation rentals bill, we have
the integrated solid waste management bill and we have the farm worker housing
bill. Councilmembers, what I'm going to be asking you today is to defer both the
vacation rental bill and the farm worker housing bill. My reasoning is...for asking
you that is that I do not believe that it is right to continue to add amendments at
this stage of the game. Amendments, as you know well, should have been done on
the committee level, not the last minute when the bill is about to be passed. It is
not fair for the public to be voting...to be not voting, but to be making comments
regarding the bill when they have not had any opportunity to at all to look at the
amendments except today. They're going to be faced with...there is an amendment
and you're not exactly sure what it is. So, these things should have been done on
the committee level and we continue to do this. So I'm asking Councilmembers to
please, at this stage of the game what I'd like for you to do is we'll do the
amendments. No problem with that. After we do the amendments, we'll defer the
bill. My reason again is the community now and the general public will have the
opportunity to make comments, anyone can make any comment they want, but they
will have the bill as we are going to pass it and not any more amendments. So, I'd
like to have clean bills on the floor so that when we have discussion it is on a clean
bill. There's nothing else to discuss. You will have an opportunity to look at this
clean bill. From today to the next meeting, you will have that bill that we're going
to pass. There will be no more amendments. I believe that that's the way we
should do things. That's the way it was set up to be done and that's the reason we
have committees. All bills are done on the committee level. After it's voted on the
committee, then it's passed to the full council and the normal is to have all the work
done on the committee level, so when it gets on the full council, we vote on the bill
without amendments. That's the normal. We've kind of strayed away from that
and maybe partly due to my fault for continuing to accept recommendations on
amendments. So, I'll be making that recommendation and we'll see what happens.
But I'll accept any comments. Go ahead, Councilmember Kawakami.
Mr. Kawakami: Thank you, Mr. Chair. In regard to the farm
worker housing bill, the only amendment that I was aware of was a possible
amendment introduced by Vice Chair Furfaro as an attempt to reach out to me and
my concerns. Since then I've met with some of the county attorneys and also
members of the planning department and it seems as if the amendment that was
going to be introduced which hasn't been introduced doesn't achieve the intent that
I wanted it so. It doesn't have the essence that I intended it to have and so I will be
actually asking at the right time that we not introduce that amendment. So as far
as I know there are no amendments on my behalf. So if there are no amendments, I
don't think that we're necessarily dealing with a bill that is not clean.
Chair Asing: Okay, then you need to be corrected because there
are amendments.
Mr. Kawakami: Okay.
Chair Asing: And I have seen the amendments. I just saw the
amendments and I... what I'm seeing is I'm seeing staff rushing to the Xerox
machine and starting to Xerox items and I'm saying, what's that? Oh, there's some
amendments to be made to the bill. It's not yours...
Mr. Kawakami: Okay.
Chair Asing: ...amendment. It is others and this is happening
on both the TVR bill and the farm worker housing bill, and I do not believe that is
what the public should expect. They should have the opportunity to make comment
COUNCIL MEETING ~ - 15 - • July 28, 2010
on the clean, full bill so that when you get here the next time you will have the
opportunity from the end of today, this is the bill that is before the council and you
make your comments at that time, but you have a clean bill. So in reference to your
question, it is not your amendment that I'm making reference to, so thank you.
Councilmember Kaneshiro.
Mr. Kaneshiro: Thank you, Mr. Chair, if I may, I'll speak
specifically to Bill No. 2364. As most of you know, for Bill No. 2318 I recused
myself. But for Bill No. 2364, I do have an amendment, but the amendment is
mostly a correction amendment. It's the same amendment that was put on the floor
several times, was taken out and basically, you know, I'm putting it back in for
reasons that I think it should have been there. And there were different conflicting
testimonies or what I would say that recommendations that we had which included
the real property tax division on taking out certain areas of ag dedication. So, you
know, I resolved those issues and all I'm doing is simply reinserting that back in, so
it's not a significant change from what the public has seen the bill go through for
the last year. So I would say that, you know, I can only speak for 2364, so I won't be
supporting a deferral for that bill at this time.
Chair Asing: Thank you. Councilmember...
Mr. Kaneshiro: Based on my amendment. Now I'm not certain if
there's other amendments. If there are, then I will support the Chair's
recommendation. But the amendment I did on the committee floor is basically not a
very significant change to the bill itself.
Chair Asing: Okay, let me just answer that. Again,
councilmembers, you know the policy that we have set. The policy that we have set
is you do all the work in the committee and when you move that out of the
committee onto the main floor, generally there should be no amendments. It should
be a clean bill. The public is deserving of that opportunity to comment on a clean
bill, not coming here at the last minute and all of a sudden you're faced with
making comments on the bill plus the amendment which you know nothing about.
And I want to give the public that opportunity to review that amendment so that
when they come at the next meeting, it's a clean bill, you have the total time and
effort to make whatever comment you want so that you can try to change our minds
or not change our minds on voting either for or against the bill. So that's my
reasoning with that. Councilmember Bynum.
Mr. Bynum: I think that everybody that follows the council
knows what's going on. Just a few weeks ago I was making the Chair's argument
about a bill that it should stay in committee and be managed there, and he was
making the opposite argument and it was just about .politics. It's no secret that the
Chair is opposed to both of these bills and is trying to use the...what seems a very
reasonable comment to his advantage. That's my belief. I think it's clear from the
history of our council. What he's saying is accurate. We should deal with
substantive amendments in committee. I believe any amendments that come today
are not substantive, they're not wholesale changes, but I can tell you I've sat on this
council where extremely large changes to bills happen in the last few minutes after
months of debate, the housing bill in particular last session and other bills. The
amendments that are before us today are not major wholesale changes to the bill
that I'm aware of and I won't support any deferral. You know, the farm worker
housing bill was at the full council, went back to committee as I recall, and now is
before the council again. This is the people's business. You... many of you have
been here many times. We're ready to make a decision. Whatever the outcome is,
I'm prepared to make a decision on both of these bills today. So I will not support a
deferral on either bill.
COUNCIL MEETING - 16 - ~ July 28, 2010
Chair Asing: Thank you. Any further discussion? Yes.
Councilmember Furfaro.
Mr. Furfaro: Yes, Mr. Chair, I have amendments as it relates to
commentary that we got from LURF as it relates to farm worker housing. They are
not significant. They talk in terms that any tentative density that is given for farm
workers is really not permanent density. It just tightens that up a bit. And I might
point out that everybody should also know that the State's Important Ag Land
Committee is functioning right now to give density to farm workers based on the
Important Ag Land piece that would not be as restrictive as the parameters that we
have put in the bill through the committee. So I don't think it is that substantive
and I also have to point out that, you know, OIP said at one time their belief was
that the two non-committee members in any meeting should actually not even
attend the committee meeting that they don't belong to. So we had to change our
rules to make everybody an ad hoc (sic) committee member to accommodate OIP's
opinion and therefore those ad hoc committee members only have the full council's
opportunity to actually introduce an amendment. But as ad hoc members now, they
can at least sit through the meeting of the committee. So, you know, we're getting
some conflicting instructions that kind of put us in a position that, you know, people
want to have good information to be able to make their decisions on, but you know,
they don't have the opportunity to enter amendments if they're not committee
members. So my amendments are not more than some substance that LURF is
recommending that we put in place.
Chair Asing: Okay, any further discussion?
Councilmember Chang.
Mr. Chang: Thank you, Chair. I'm not going to support the
deferral. I think the planning committee had a lot of discussion, a lot of time to
think about it. We have people here on both sides of the issue, whether it's the
transient vacation rental or the farm worker housing bill, and if the bill is set before
this full council and we call for a vote, I'm prepared and ready to vote. And I'm not
going to support. the deferral. Thank you.
Chair Asing: Thank you. Any further discussion?
Councilmember Kawahara.
Ms. Kawahara: Thank you, Chair. I also...I'm hearing...what I'm
hearing here is that the amendments are...proposed amendments are not
substantial. I'm not willing to...I'm willing to look at the amendments and if they're
not substantial, I will not support a deferral. I respect your decision to try and
defer something for the sake of the public; however, I think we also have procedures
in place where there's a recess and that we've done it several times. There's process
and policy. Maybe the policy has been that...the policy generally is that we do it all
in committee, substantial stuff in committee, but I've been here long enough just in
the two years to know that that changes. And things that happen in committee
come out into the full council and we make insubsta... not substantial changes. I'm
comfortable with these if they're not substantial changes to not defer these. Thank
you.
Chair Asing: Thank you. Any further discussion? If not, read
the bill please.
Mr. Nakamura: Under Bills for Second Reading, first bill for second
reading is Bill No. 2364, Draft 1.
COUNCIL MEETING ~ - 17 - ~ July 28, 2010
BILLS FOR SECOND READING:
Bill No. 2364, Draft 1 - A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE
COMPREHENSIVE ZONING ORDINANCE (Transient Vacation Rentals)
Chair Asing: Thank you. What I'd like to do is open it up to the
public first. Do we have registered speakers?
Mr. Nakamura: We have registered speakers, Mr. Chair. The first
registered speaker...
Chair Asing: How many registered speakers do we have?
Mr. Nakamura: We have 15, Mr. Chair.
Chair Asing: How many again?
Mr. Nakamura: Fifteen.
Chair Asing: Fifteen.
Mr. Nakamura: 1-5.
Chair Asing: 1-5, wow...wow. Okay, why don't we start. Then
go ahead, first speaker please. The rules are now suspended.
There being no objection, the rules were suspended.
Mr. Nakamura: The first registered speaker is Peter Bilbo followed
by Arthur Koebel.
PETER BILBO: Good morning. My name is Pete Bilbo and I'll keep
this as short as possible. I'm speaking on behalf of this amendment. I'd like to see
this passed. It has been a long time coming and if it's possible to some way work in
to the law, the amendment, that we could maybe defer actually making it take place
until the important ag lands have been designated and so forth. I'd like to see that
happen as well. I think we're kind of putting the cart before the horse in not having
that finished and dealing with vacation rentals. So that's kind of where I'm at.
Chair Asing: Thank you. You know, councilmembers, let
me... thank you very much. Any questions for the speaker? If not, thank you very
much. Before we call the next speaker up, councilmembers, do you want to
introduce the amendments and have the amendments at least read, discussed, and
we can pass the amendments so that the public will have an opportunity to at least
know when we pass the bill it's going to be with those amendments. You don't know
that yet. So, I think it's the better way, so I'm going to leave it up to
councilmembers because I think it is in fairness to all of you here and the general
public that you know the amendments. So, maybe we should put the amendment
on the floor, vote on it, and then get that cleared that away, the amendments, and
then we'll open it up to the public. The public will then know these are the
amendments that are going to take place. So what is the pleasure of the group.
Councilmember Bynum.
Mr. Bynum: I'm happy to agree with the Chair on this one.
Chair Asing: Okay.
COUNCIL MEETING ~ - 18 - ~ July 28, 2010
Mr. Furfaro: I think it's a very good idea that the public has an
opportunity to see what we'll be discussing.
Chair Asing: Okay, thank you.
The meeting was called back to order, and proceeded as follows:
Chair Asing: Okay, with that said, let's have a motion to approve
the bill first.
Mr. Bynum: So moved.
Mr. Chang: Second.
Mr. Bynum moved to adopt Bill No. 2364, Draft 1 on second reading and final
reading, and that it be transmitted to the Mayor for his approval, seconded by
Mr. Chang.
bill.
Chair Asing:
Mr. Furfaro:
Chair Asing:
Mr. Furfaro:
Chair Asing:
Mr. Furfaro:
Chair Asing:
copies.
Okay, now let's have the first amendment to the
Mr. Chair, may I ask that we take a short recess...
Sure.
...for the purpose of making copies...
Okay.
...for the public as...
Okay, we'll take a short recess and then we'll make
There being no objection, the meeting was recessed at 11:46 a.m.
The meeting was called back to order at 12:18 p.m., and proceeded as follows:
Chair Asing: The meeting is now called back to order. With that,
Mr. Clerk, I believe we're going to have the first amendment. Did we do the motion
to approve?
Mr. Nakamura: Yes.
Chair Asing: And we did the second.
Mr. Nakamura: We're on Bill 2364, Draft 1. There was a motion to
approve and a second, so.
Chair Asing: Thank you. With that, can we have the
amendment now. Councilmember Kaneshiro.
Mr. Kaneshiro: Thank you, Mr. Chair, for the consideration given
to fix up the amendment as I realized even to change the date from last week to this
week, it takes some format to do it and it takes some time. So, you know, just small
changes like that takes some time for the staff to do. But as I stated earlier in my
COUNCIL MEETING • - 19 - ~ July 28, 2010
discussion for not moving to approve for the deferral, my amendment that I have
circulated among my members is not a very significant change to the amendment
that was introduced at the committee meeting the last committee meeting we had.
So at this time, I would like to make a motion to have this amendment approved
and basically what this amendment would do to the section (c) of the current bill
that we have before the full council have some small changes that I would like to
discuss about once we have the motion on the floor.
Chair Asing: Thank you. Could I have the... Go ahead.
Mr. Kaneshiro: Sorry, we need to take...
Chair Asing: Short recess.
There being no objection, the meeting was recessed at 12:20 p.m.
The meeting was called back to order at 12:32 p.m., and proceeded as follows:
Chair Asing: The meeting is now called back to order. With that,
Mr. Clerk?
Mr. Nakamura: Council Chair, we're on the second reading of Bill
No. 2364, Draft 1. There's a motion to approve and a second. And we're in the
process of circulating, I believe, a floor amendment from Councilmember Kaneshiro.
Chair Asing: Thank you. With that, Councilmember Kaneshiro.
Mr. Kaneshiro: Thank you, Mr. Chair. If I was given a second
chance, I guess I would have to agree with the procedure and policy the Chair first
stated that perhaps, you know, we shouldn't be doing amendments on the floor. I
thought it was rather simple, but as you can see that with this new system where
you gotta go into computers and so forth, you know, it takes a little while more. So,
I apologize to every one of you for that. But as I stated earlier, you know, my
amendments are not very significant. It was introduced last week in the committee
meeting. It was passed out in the committee meeting. What I did do is circulate it
throughout the members today of the council is that I did add something else in
there which was taken out and specifically, you know, if we can move this on the
floor at this time and then I would like to get into some discussion on the minor
changes that I did. So I would move to have my amendment, as circulated,
approved.
Chair Asing: Thank you.
Mr. Bynum: Second.
Mr. Kaneshiro moved to amend Bill No. 2364, Draft 1 as shown in the Floor
Amendment attached hereto (Attachment No. 2), seconded by Mr. Bynum.
Chair Asing: You want to just describe the amendment and then
we can just vote on it.
Mr. Kaneshiro: Right, so now that we've had a motion on the floor
and a second, basically what I did is that, you know, we took out the part about ag
dedication. To me, you know, it was always important to me that if you have ag
land, you're farming, then that's fine. But ag dedication is a way of proof that
shows it if you are really farming or not. There were some concerns, I guess, from
the administration about keeping ag dedication in there, and specifically I stated
COUNCIL MEETING ~ - 20 - ~ July 28, 2010
that, you know, this is all prior to March 7, 2008. Now, if you have an ag dedication
on the property, you can show proof that you have an ag dedication on the property,
then there's reason for you to move forward to go ahead and get a use permit.
That's the process that allows you to. We took that out for some reason. I'm not
certain why. I didn't catch it till after I introduced the amendment, so I'll take the
blame for that. But specifically for me it was important that this is one of the signs
that...that is ag dedication is occurring on the property.
The other change I made when we had some discussion on a bona fide
agricultural operation. That was approved in the last meeting we had. Basically,
we stated two forms that you would show as a bona fide operation, agricultural
operation existed prior to March 7, 2008 and it was the State General Excise Tax
Form and the Federal Income Tax Form 1040 Schedule F. Now, after preparing
some discussions, basically I changed it to require both. And again, after further
research with my accountants and you know some CPAs and so forth, I found that
not everyone files Schedule F. They can be a legitimate farming operation, they can
also file a Schedule E or there is some other schedule forms that you can file that
the federal requires to show that you are in farming and actively farming. So,
basically what I stated was and/or. So if you can show that you have a General
Excise Tax, State General Excise License that you are legitimately farming under
the State General Excise License and/or if you have the Schedule F, that's a bonus
for you. So I didn't want to make it too complicated. I felt that if you're legitimately
farming at that time prior to March 7, 2008, the General Excise Form that you file
with the State should show that, I mean, you know, if you were legitimately
farming. So again, that's the concern that I have. As most of you know, you know,
I've been farming for generations and I...in fact, I'm from a third generation
farming and we still are farming and these are farms. As I explained in the last
meeting I had that I filed myself too, you know. Schedule F, probably because I've
been losing a lot, I file the Schedule F. Maybe if I was making some good money, I'll
file a Schedule E or something else to show the IRS that, you know, it's profitable.
So, I didn't really want to complicate the issues. But... and again, in the last part
basically we just added the part about where the Planning Commission finds that
the size, shape, topography, location or surroundings of the property or other
circumstances did not allow an applicant to qualify for an agricultural dedication
pursuant to the County of Kaua`i's Department of Finance Rules and so forth that
they inhibited intensive agricultural activities. So again I just added that section
back in there. So, I don't think it's a significant change and I apologize for the
delay, not realizing, you know, the steps that the staff had to go through to make
these changes. And I apologize to the public too because I know it's getting time for
lunch and everyone's hungry.
Chair Asing: Thank you. Any further discussion on the
amendment? Go ahead, Councilmember Bynum.
Mr. Bynum: I appreciate Councilmember Kaneshiro's
amendment and I believe as advertised these changes are consistent with his intent
and, you know, I'm prepared to support this amendment.
Chair Asing: Thank you. Any further discussion? If not, all
those in favor of the amendment, say aye.
The motion to amend Bill No. 2364, Draft 1, as shown in the Floor Amendment
(Attachment No. 2), was then put, and unanimously carried.
Chair Asing: With the amendment carrying, what I'd like to do
now is we're going to take the lunch break now. Sorry, but we'll come back after
lunch and open it up to the public with the amendment carrying. What I'd like to
COUNCIL MEETING • - 21 - • July 28, 2010
do now is we're going to take the lunch break now. Sorry, but we'll come back after
lunch and open it up to the public. You now know that the bill before you is going to
be acted upon with the amendment that just passed. So that is the full bill,
whatever was on there plus this amendment is what we're going to be voting on
today.
Mr. Kaneshiro: Mr. Chair, I know from...we want to get the
amendment out so people...we'll make copies for people so before they go to lunch
they have the copies and they can look at the amendment. So with that...
Chair Asing:
wants to look at it.
Mr. Kaneshiro:
Chair Asing:
be back at 1:40 p.m. Thank you.
Do we have copies? We have copies for anyone who
Thank you, Mr. Chair.
Thank you. With that, we'll break for lunch. We'll
There being no objection, the meeting was recessed at 12:40 p.m.
The meeting was called back to order at 1:48 p.m., and proceeded as follows:
Chair Asing: This Council Meeting is now called back to order.
With that Mr. Clerk I believe we are suspending the rules and opening the meeting
up to public testimony. For the person who spoke earlier, I will give him another
opportunity because we did not have an amendment but I don't see him in the
audience.' So can we have the next speaker please?
There being no objections, the rules were suspended.
Mr. Nakamura: The next registered speaker Arthur Koebel,
followed by Warren Doi.
ARTHUR KOEBEL: Good afternoon, my name is Arthur Koebel. I
would first like to thank the Council for letting me speak today, I came here from
California specifically and I would have really been bummed if I couldn't do that
today. We purchased our beach house on Moloa`a Road in 1994. We have a nine
hundred (900) square foot whole house on less than a quarter acre. Our lot is not a
result of a large agricultural split. Our property's boundaries have been unchanged
since the 1800s when it was first recorded. When we purchased our home in 94 it
was a vacation rental and the only way we could afford it was to keep it as a
vacation rental. We contacted the county to inquire as to what permits would be
needed and were told there was no permit necessary and to register and pay our
taxes. We have faithfully paid our taxes for sixteen (16) years and employed a
property manager, a cleaning crew and a gardener. Our dream is to one (1) day
retire here but if we cannot rent our home we will be forced to sell it and our dream
of sixteen (16) years will be smashed. It is perplexing and frustrating that we have
followed the rules for the past sixteen (16) years, (inaudible) for the day when we
can retire here and now that can all be taken away from us. I ask you to find an
equitable solution so that we can one (1) day live our dream on our beautiful island,
thank you.
Chair Asing: Thank you. Any questions Councilmembers? If
not, thank you very much. Can we have the next speaker please?
Mr. Nakamura: Warren Doi.
COUNCIL MEETING • - 22 - ~ July 28, 2010
WARREN DOI: Hello, Warren Doi for the record. Thank you
Chairman and members of the Council. I'll make this short and sweet. I've
testified prior and I just wanted to thank everyone of the Council for your
consideration and specifically for listening to both sides. It is a very... there's
strong emotions on both sides and I feel that the current proposal seeks to come to a
balance from both sides with very specific requirements upfront and restrictions
along the way. And hopefully it will increase the amount of revenues to the county
as well as jobs to the community, so thank you.
Chair Asing: Thank you. Any questions Councilmembers? If
not, thank you very much.
Mr. Nakamura: The next...
Chair Asing: Can we have the next speaker please?
Mr. Nakamura: Next speaker is Charlotte Liddell, followed by Chad
Deal.
CHARLOTTE LIDDELL: Chairman Asing and members of the County, I'm
Charlotte Liddell. I am asking you to vote in favor of Bill 2355 to amend the
ordinance. I feel that this bill offers a fair compromise in a complex situation. In
my personal case, our CRP lot is zoned Ag but the land has never been farmed and
is not suitable for a farming operation, in my opinion. But we do have something
very special to offer... the peaceful and rural surroundings of our area give our
guest an experience of nature and of aloha that they can't find anywhere else.
Hearing the birds and seeing the lush greenery and picking their own papayas and
bananas is healing for them. And in return they give me an income that supports
me and my family and that I re-circulate back into our local economy. At the time
we created our TVR was supported by the county and I paid the taxes on the income
I received and over the years I continued to devote my time and energy into this
business. I feel it's important to support the diversity of the individual situations
and the needs of the people of Kauai today especially during these hard economic
times and thank you for your consideration.
Chair Asing: Thank you. Next speaker please.
Mr. Nakamura: Next speaker is Chad Deal, followed by Claudia
Herfurt.
CHAD DEAL: Good afternoon Council, Chair, my name is Chad
Deal. I am no longer the owner of the farm because of a divorce, but my oldest son
has now taken over the... my place in farming. We have a four (4) acre organic farm
in. K-lauea and have been running it as a farm supplying fifty (50) to seventy (70)
families a week with produce. And we also have a guest house on the property that
we have been using as a vacation rental, offering our visitors both the opportunity
to be on a farm and see Kauai in its ruralness and also allowing the... I think these
types of opportunities allow the local people such as myself to interact with our
visitors on a one (1) to one (1) level. My children have also now... my older children
have both, my two (2) older ones have gone to other countries around the world.
The next trip they're planning is to India to do exactly what we're talking about
here... to visit farms, they bring back the knowledge that they gain from... well this
next trip will be India, the last one was in Hungary and Austria and my... as I said
my son has been inspired by these types of farming operation, the farming and
tourism operations. My daughter was a... put in charge of the chefing on a farm
that she visited in Umbria, that's in Italy. There were sixty (60) people staying on
that farm, that's a very large farm. They have all the orchards and vineyards and
COUNCIL MEETING. - 23 - • July 28, 2010
so forth. There were sixty (60) people on that farm over the holidays and she had
the opportunity to be... she is a chef and she had the opportunity to not only live
and work there for about six (6) weeks but she was also put in charge of the kitchen.
So I feel that this type of operation is both beneficial for the people who live on the
island and also for the visitors alike and I would like to see this continue and as I
said we were doing this since 1987 when we first moved here, it was our dream to
do just such. I believe we provided a great opportunity for both our visitors and for
the local people on the island and thank you for your time. Any questions?
Chair Asing: Thank you.
Mr. Nakamura: Next speaker...
Chair Asing: Do we have the next speaker please?
Mr. Nakamura: Next speaker is Claudia Herfurt, followed by Steve
Long.
CLAUDIA HERFURT: Honorable Chair and Councilmembers, my name is
Claudia Herfurt and I am renting a small vacation rental. I get two (2) guests most
of the time, in Kilauea and my property unfortunately is not producing to farming
because of the terrain and poor soil. I feel that having a vacation rental, a small
one like mine in my neighborhood does not detrimentally influence the
neighborhood. My guests don't generate noise because there are only two (2) people.
I feel that the property because it's unsuitable for farming would not be
reintegrated into a farming operation. I really would like to have the opportunity to
acquire a permit for my special circumstances or apply for a permit and with
consideration of the rules and regulations so that I can continue this rental that I
have had since 87. And I think it's kind of ironic that somebody from Asia or
Europe would have a legal vacation rental in Princeville and send the proceeds back
to their respected countries whereas I who live here and I've lived here for thirty-
one (31) years, year .around may not be allowed to continue with my vacation rental.
So again I appreciate your diligence and your consideration for this issue and thank
you for your time.
Chair Asing: Thank you.
Mr. Nakamura: Next speaker is Steve Long, followed by Harvest
Edmonds.
STEVE LONG: Good afternoon, my name is Steve Long and thank
you for this opportunity. I'm an architect and over the last two (2) decades, I've
professionally planned and personally developed numerous agricultural
subdivisions on Kauai. I've always been dismayed that the agricultural
requirement has not been enforced on Kauai, on these projects. I was responsible
for completing the first two (2) agricultural master plans in association with new Ag
subdivisions on Kauai. And in those plans, we restricted the building envelope,
coordinated the soils, topography and the rainfall to recommend optimal plant
production and we made the agricultural requirement part of the CC&Rs of the
project. I support the TVRs in agricultural land because it makes agricultural a
bona fide requirement of the registration process which I believe is a important first
step to requiring and enforcing agriculture on agricultural lands on Kauai. In
closing, I would like to ask the Council and the Planning Commission to take a close
look at enforcing the agricultural requirement on agricultural land so that we can
truly live on the Garden Isle. Thank you.
Chair Asing: Councilmember Bynum.
COUNCIL MEETING • - 24 - • July 28, 2010
Mr. Bynum:
Mr. Long:
Was it Mr. Long?
Yes sir.
Mr. Bynum: So you were referring to agricultural subdivisions
that are commonly referred to as Gentlemen Estates?
Mr. Long: I think we all live on the island and it's really clear
that there is an agricultural requirement that is specifically outlined by the
Assessor's Office on what constitutes agriculture and there's very few agricultural
Gentlemen Estates that are producing real agriculture and that's something that
we need and it's an asset that this island and this community can provide for itself
and self-sufficiency particularly during these difficult times. So that's what I'm
referring to and we... in the projects that I planned, professionally and personally
developed, we've been able to allocate over eighty percent (80%) of useable land area
for agriculture by limiting the building envelope and making it a part of the CC&Rs
so that the homeowners association enforces it. I think that's an important first
step to making sure that we produce agriculture on this island.
Mr. Bynum: You peeked my interest because you said that you
were dismayed that there wasn't already a regulatory requirement to do the things
that you're talking about.
Mr. Long: I think there's a regulatory requirement but it's not
enforced.
Mr. Bynum: Right.
Mr. Long: And I'd love to see agriculture on agricultural
lands...
Mr. Bynum: Thank you.
Mr. Long: And this is the first real step towards requiring a
bona fide agriculture.
Mr. Bynum: Okay thank you.
Mr. Nakamura: Next speaker is Harvest Edmonds, followed by Kim
Kerrigan.
HARVEST EDMONDS: Aloha and thank you for letting me speak today.
Since I... last week I gave my personal situation I just wanted to say...
Mr. Chang: Harvest? Harvest? Excuse me; can you state your
name for the record? Thank you.
Ms. Edmonds: Okay. Since last week I gave my personal...
Mr. Chang: Harvest, state your name for the record.
Ms. Edmonds: I thought I did... my name is Harvest Edmonds.
Mr. Chang: Thank you.
COUNCIL MEETING • - 25 - • July 28, 2010
Ms. Edmonds: Okay... last week I gave my personal story about
TVR,s on Ag land and I do support that and I just wanted to thank Tim for
proposing this bill and I really appreciate the opportunity that this bill will
hopefully will give those of us who are on Ag land and who has special
circumstances be able to continue to do what we have been doing for many years
and always thought that we were in the right to do it and have the legal right to do
it. And I would just say thank you for supporting this bill, all of you.
Chair Asing: Thank you. Next speaker please?
Mr. Nakamura: Next speaker is Kim Kerrigan, followed by Susan
Saemann.
KIM KERRIGAN: Good afternoon, my name is Kim Kerrigan. I'm
here in support of Bill 2364. My husband and I were able to visit Kauai over the
course of the last five (5) to ten (10) years and stayed at a vacation rental which was
our preference when we traveled, so that we can enjoy the more rural setting and
explore the grounds, the flora and fauna, and all the things that are being grown
there. During our visit to the special agricultural property, we were encouraged to
experience and participate in the agricultural activities in this very quiet property.
I can tell you that this experience was memorable and unique and it's what makes
Kauai, Kaua`i... It's puzzling to my husband and I that you would want to
discourage these experiences which may not be for everyone but certainly appeals to
many visitors. Because of our experience at this vacation rental, it became our
dream to buy land and build a home on Kauai which we have now succeeded in
doing this year on the North Shore. We're now residents of Kauai because of the
inspiring vacations we enjoyed here on Kaua`i's North Shore in a vacation rental
and hope that many more visitors like ourselves would be able to experience a
vacation rental in the future here in beautiful Kauai.
Chair Asing: Thank you.
Mr. Nakamura: Next speaker is Susan Saemann, followed by
Paulina Barsotti.
SUSAN SAEMANN: Hello my name is Susan Saemann and I'm also
going to give testimony for Paulina after my testimony. And I have a farm on the
North Shore and gave testimony in front of the Planning Commission. We have
farmed since 1988 as well as run legal vacation rentals with General Excise Tax
number and also paying all of the taxes. We did this every way it was legal. We
have not changed the demographics of our neighborhood at all, we did not build
anything to accommodate these visitors and we have had no complaints. In fact just
like the person who spoke before me, people have come to this island... they have
seen what a dream it is to live here and they have come here and become taxpaying
citizens. So I would like to continue what is our lawful right to continue to do the
vacation rentals, use our General Excise Tax number, pay our taxes to the State
and to the County and to lawfully continue doing what we have been so honored to
be able to do and welcome these visitors who will not come and stay at hotels to our
island. So I am definitely in favor of this bill.
Chair Asing: Thank you.
Mr. Bynum: Thank you.
Ms. Saemann: And now I would like to give testimony for Paulina
Barsotti. To whom it may concern...
COUNCIL MEETING • - 26 - • July 28, 2010
Mr. Furfaro: Excuse me?
Chair Asing: Yeah.
Mr. Furfaro: Mr. Chair, point of order...
Chair Asing: Yes.
Mr. Furfaro: In the sense that we do not typically let someone
speak twice by bringing in another name to the table.
Chair Asing: Yeah that's correct but I'm going to just allow it;
why don't you go ahead and do it.
Ms. Saemann: Thank you so much.
Chair Asing: So you just have one (1) more?
Ms. Saemann: Yes and it's very short.
Chair Asing: Yeah, go ahead.
Ms. Saemann: This is someone who works for me.
Chair Asing: Go ahead.
Ms. Saemann: I have been raised on Kaua`i's North Shore and
have worked in the vacation rental market for quite some time. My family and I
have been dramatically affected by the changes made to not allow Ag lands to
vacation rent. I have lost my property, my flower shop business and my credit. I
have been struggling very hard. I need this work in order to feed, house and take
care of my children accordingly without the assistance from the government. All in
all I hope and pray for a change so that things will get better for me and my family.
I have worked for the Saemanns for quite some time and if things get better, I'm
hoping to have enough work to help my family. High and regards Paulina.
Chair Asing: Thank you. Can we have the next speaker please?
Mr. Nakamura: Next speaker is Joseph Figaroa, followed by Anne
Punohu.
JOSEPH FIGAROA: Aloha. Can you hear me? There we go... good
afternoon Councilmembers and Council Chair Asing. My name is Joseph Figaroa. I
am in opposition to Bill 2364, for these particular reasons. Number one (1) it is in
direct conflict with Hawaii Revised Statutes Chapter 205. Hawaii Revised
Statutes Chapter 205 prohibits any usage of transient vacation on designated
agricultural properties. It is indirect conflict of Ordinance 436 and 864, that's
reason number two (2). Ordinance 436 was passed in 1982 by the County Council to
create visitor destination areas. The primary reason was to designate areas on the
island where resort activity would be permitted and to preserve other areas of the
island for residential, agricultural and non-resort commercial and non-commercial
uses. Since the ordinance of 436, the County of Kauai General Plan study called for
the recognition and regulation alternative... regulation of alternative visitor
destinations. This study was conducted over a period of five (5) public meetings
that included various community members of Kauai and was completed in
July 2005. Due to the findings of this study, ordinance '864 was passed on
February 31, 2008 and signed into law March 7, 2008 by Mayor Bryan Baptiste.
COUNCIL MEETING • - 27 - • July 28, 2010
Here are some of the discoveries and the conclusions of ordinance 86.4. While this
type of visitor unit could be compatible with the character and nature of Kauai and
while it has certain positive advantages for the community, the uncontrolled
proliferation of vacation rentals in residential and other areas outside the Visitor
Destination Areas is causing significant negative impacts to certain residential
neighborhoods. Number two (2), in oceanfront of premium Real Estate value,
second and third homes and vacation rentals are displacing traditional
neighborhoods where people of low and moderate have been able to live in the past.
Besides contributing to a lack of affordable housing to the community, this is
changing the social character of neighborhoods where neighbors used to know each
other. The Council also finds that transient accommodations and General Excise
Taxes on various vacation rentals are sometimes not being paid, causing a loss of
revenue to the State and the County Governments and failure to pay for impacts
associated with visitors. The purpose of this bill is restore a balance between
primary residence and single family transient vacation rentals by explicitly
prohibiting new single family vacation rentals outside visitor destination areas.
Multifamily vacation rentals are already so prohibited...
(3 minutes)
Mr. Figaroa: At this time, the Council then decides to
accommodate those individuals who have been operating transient vacation rentals.
With this accommodation, it gave a chance to individual owners to comply with
county ordinances which brings us to the challenges that we face today and here are
some of the questions...
Chair Asing: Do you have a lot more to finish?
Mr. Figaroa: Louder? Sure? Excuse me?
Chair Asing: Do you have a lot more to finish?
Mr. Figaroa: No, just a few...
Chair Asing: Okay yeah your three (3) minutes are up...
Mr. Figaroa: Alright.
Chair Asing: But I'll give you some' time to finish up.
Mr. Figaroa: Alright, thank you.
Chair Asing: Go ahead.
Mr. Figaroa: What was the County Council's intent with 864?
Ordinance 864 explains the uncontrolled proliferation of vacation rentals and
residential and other areas outside the visitor destination areas is causing
significant negative impacts to certain residential neighborhoods. It was the intent
of the Council to eliminate TVRs that was not operating legally and to prevent the
addition of more TVRs outside the VDA. By passing the ordinance the Council's
intent was to reestablish the VDA as the appropriate location for visitor
accommodations. The closing statement... as I shared with you today through
extensive studies, by the County of Kauai, that abuse of report... abuse of resort
activities outside the visitor destination areas has been a major problem and has
also been referenced by Councilmember Tim Bynum when he stated back in May
that the County of Kauai has continued to allow agricultural properties to be
abused. And with Bill 2364, it will open yet another avenue for abuse and
COUNCIL MEETING - 28 - ~ July 28, 2010
manipulation of the law. I ask you members of the Council to please consider the
entire community of Kauai when making your decision and to remember that the
oath that you took when you were sworn into office, to protect the laws of the lands
and to maintain the integrity of our community. On behalf of myself and the voters
who have elected you to Council mahalo and thank you for your time.
Chair Asing: Thank you.
(Audience applauding)
Chair Asing: I would appreciate it if we just keep it down please.
Thank you.
Mr. Nakamura: Next speaker is...
Chair Asing: Next speaker.
Mr. Furfaro: Excuse me. We have Councilwoman who has a
question.
Chair Asing: Oh I'm sorry, you had a question?
Ms. Kawahara: Yes I had a question for the young man.
Chair Asing: Okay hang on.
Mr. Figaroa: Ask away.
Ms. Kawahara: Hi, good to see you.
Mr. Figaroa: Yes you too.
Ms. Kawahara: You know I was a little bit confused by your
testimony. You read this bill that we're considering today, is that correct?
Mr. Figaroa: Yes I did.
Ms. Kawahara: So you do know that... it says that this bill
maintains the prohibition concerning the commencement of any new single family
transient vacation rentals outside the VDA if use was not established prior to
March 7, 2008 and that is the exactly the particular provisions of 864 and 876 that
you discussed.
Mr. Figaroa: Well my intent when I expressed the original...
when 864 was originally written, these were the reasons the County Council had
come to a conclusion to write 864 so basically my opinion is... why consider another
bill to cancel out what you had already passed which was ordinance 864?
Ms. Kawahara: That's why I'm glad we have a chance to talk
because we're not cancelling out 864, 876...
Mr. Figaroa: No, no, no... I'm not saying you're canceling out 864
but you're replacing it, am I not correct?
Ms. Kawahara: No. This bill says we're maintaining the
prohibition that we have...
COUNCIL MEETING •
Mr. Figaroa:
-29-
So is it all prohibitions?
• July 28, 2010
Ms. Kawahara: Made in existent in 864 and 876 concerning any
new VDAs... any new transient vacation rentals...
Mr. Figaroa: So...
Ms. Kawahara: Prior to 2008... so that's why I just wanted to be
sure... I mean...
Mr. Figaroa: Before I can answer any further questions what I'll
have to do is reverse my... review the bill again to properly answer your questions.
Ms. Kawahara: Thank you.
Mr. Figaroa: You're welcome.
Chair Asing: Thank you.
Mr. Nakamura: Next speaker is Anne Punohu, followed by Lorna
Nishimitsu.
ANNE PUNOHU: Aloha, Anne Punohu. I had a conversation with a
Councilmember but no alcohol was involved and I didn't even get pumpkin crunch
which really would've changed my mind... but... moving on... we all need to lighten
up a little bit. This bill will not help the majority of the people coming before you
today claiming that they have a dream and they can't farm. This bill is specifically
written in such a way that many people will not be able to get through this process.
This bill is not written to accommodate these guys very easily; however, in my
opinion if we're going to stop it... but show due process, nobody who doesn't get
their way is going to say that they had due process, therefore you're still going to
get a lawsuit from every single person who gets turned down who says I didn't get
due process because I didn't get my way. So in just my illogical mind I look at it as
if we just don't do this, right... you... they don't get due process and they sue okay?
If we do do this, a lot of them don't get due process and they sue... in my opinion
which is less of our time and which do we go for? And in my general opinion I don't
like TVRs on Ag land and I'll tell you why... because there's no agricultural activity
going on for most of these TVR,s and if I hear one (1) more time and I've said it over
and over again that you can't farm and farm land then what are you doing getting
farm land then, go get something else... do something else, go somewhere else
because I can farm that land a lot better than you can. And for the bottom line
argument, let's go here... I have a dream; I would like to have a farm. I would like
to have a house on that farm; I would like to farm that farm. I would like to put
food products on that farm. I would like to support... these guys says four (4) acres
he supports fifty (50) people... I could support four thousand (4,000) people on four
(4) acres because I am a true farmer, I know how to produce out of the land and I
can do a lot more for this community as far as feeding it and giving jobs than
somebody who has fifty (50) people he can feed on four (4) acres. I don't buy it... I
have a dream too. My kids are Native Hawaiian and am I going to get my dream?
Not likely because I didn't come here without enough bucks to buy this land, build
myself a nice house, put Tommy Bahamas sheets inside of it and not concentrate of
what I should have been doing which was farming the land in the first place. Aloha
and mahalo.
Chair Asing: Next speaker please.
COUNCIL MEETING. - 30 - • July 28, 2010
Mr. Nakamura:
Randy Naukana Rego.
Next speaker is Lorna Nishimitsu, followed by
LORNA NISHIMITSU: For the record my name is Lorna Nishimitsu.
Four (4) points, before ordinance 864 was adopted, a TVR owner under the State
law could apply for a Special Permit and any other use which was not outright
permitted under the law. A TVR owner can under the Comprehensive Zoning
Ordinance apply for a Use Permit for a transient vacation rental and any other use
for which the land is not zoned under county law. All you're doing today is
reinstating the right to apply for a Special Permit under State law to engage in TVR
activity, if you adopt the amendments sponsored by Councilmembers Bynum and
Kaneshiro. This does not give any TVR operator an automatic approval to continue
operation or to commence operation but it does give them the right under State law
to apply for a permit and they're entitled to that right to apply for that permit
under Section 205-6 Hawaii Revised Statutes. We therefore respectfully request
that you adopt the amendments that are pending before you and reinstate the right
of these people to apply to the Planning Commission if the lot is less than fifteen
(15) acres in size. or to the Land Use Commission if the lot is more than fifteen (15)
acres in size to legitimize transient vacation rental. Thank you.
Chair Asing: Thank you. Next speaker please.
Mr. Nakamura: Next speaker is Randy Naukana Rego, followed
by... oh that would be the last registered speaker.
RANDY NAUKANA REGO: Aloha my
name is Randy Naukana Rego from Waipake, haven't been here for awhile for
several reasons... I'm just burnt out coming to these meetings but let's say this
coming from a perspective of a farmer who's been farming Hawaiian land since pre-
contact. I can't farm anymore, it is dead... my taro is gone, water is gone, because
they built an agricultural subdivision above me which drains ninety percent (90%)
through my lo`i which is now dead. So their dream has become my nightmare.
Hasn't stopped, this started in 1991. When I saw this during that time, people
would buy agricultural lots, signed farm dwellings... as Mr. Kawakami said in some
of the meetings I saw on TV it states clearly what is allowed as a farm dwelling, if
it's not on that list, it's not allowed. We saw that violations to this date... over
twenty (20) years I've been fighting this, to this date. Go Waipake... show me
where the farm is by the house that's right by me... what are they farming? They're
farming houses up there, they're not agriculture. And in building their farm
houses, fake farm houses they destroyed my farm for twenty (20) years, I don't even
go to my land anymore because I'm so angry when I go down there. The water...
pilau, lo`i gone... nothing... and I hear these people, they have a dream? I had a
farm. I don't have a farm now because of the fake dwellings that are still in
Waipake. Now you want to extend that to say now you can have your fake dwelling,
now you can have a TVR on Ag land while I sit over there going... what about my
land? What about my lo`i? What about my water? I don't have the money like
many of them have where they can buy Ag land, build a house and don't even live
there and then have other people come and rent. And I apologize to all you... this is
twenty (20) years that I've been putting up with this and now I see TVRs possibly in
Waipake... no way, no. You want to buy Ag land, you do agriculture. You don't
build a mansion, plant a few trees... you do agriculture. That's what you're
supposed to do and you definitely do not have destination visitor houses on Ag land,
especially when you have locals down there getting damage from these
subdivisions... `a`ole, that is not pono. And I'm sorry I am just frustrated with
twenty (20) years of anger and seeing what happens... I was watching you guys on
TV and I appreciate Ho`ike because many of the locals, we can't come here nine (9)
to
COUNCIL MEETING • - 31 - • July 28, 2010
five (5), I had to drive... you saw me, I had to drive all the way back Waipake take
my wife so she can go work and I came back because it's important to me that this
fiasco of the abuse on Ag land has to stop people...
(Audience applauding)
Mr. Rego: It has to stop. So that people who really do
agriculture like me can get my agriculture back up. I love that, I can't do it for
fifteen (15) years and it's funny because I see faces over here who have put me
through hell in Waipake who are still here trying to advocate for these none
agricultural uses and personally I'm sick to my na`au about it, twenty (20) years of
this abuse, twenty (20) years of this blah, blah, blah... what you guys cannot enforce
the farm dwelling agreement, believe me you ain't going to enforce the TVR
why...I've seen it, I live it every day. Dump this bill and like... Mr. Figaroa said he
had very well points to you... as the other lady said, she had points to you... this
should not be allowed and we got to protect the agricultural land that we have now.
As Mr. Kawakami said it was not allowed, it was not allowed and it shouldn't be
allowed and you certainly don't make an ordinance to allow that to have that now.
Mr. Nakamura: Three (3) minutes Mr. Chair.
Mr. Rego: Thank you.
(Audience applauding)
Chair Asing: Can I have the next speaker please?
Mr. Nakamura: No further registered speakers.
Chair Asing: We don't have any other registered speakers but I
will take whoever wants to come up.
ELAINE DUNBAR: Elaine Dunbar. I had a deja vu, I thought I was in
Maui listening to these testifiers today. I have never heard so much selfishness in
ten (10) or fifteen (15) minutes and so much I, me, mines... it's appalling and when
one (1) of them states... that TVRs are what makes Kauai, Kaua`i... now I'm really
scared. What have you done Mr. Bynum? What the hell have you done?
Chair Asing: Please watch your language.
Ms. Dunbar: Well it's a place, okay... I'm sure a lot of us will
visit. What I want to testify about today is the inappropriateness of Tim Bynum
sitting on this matter. It's bad enough that he's had input on the bill, on the
measure but the fact that he's going to be voting. He went on public TV... I mean a
public radio forum and stated that he has a TVR on Ag land, now if he's saying that
this is not true then I have to ask, when is he telling the truth. Is it on the radio or
is it here at the Council? Do you tell the truth sometimes? Which is it... you get on
the radio and tell everybody that you have a TVR on Ag land but now you're
shaking your head no. So I say if you have a clear conflict of interest, you recuse
yourself from the vote today. Because down the road, now think a little bit
unselfishly, I know it's hard for a lot of the haoles on this island to do that... think a
little unselfishly... the trouble you're going to cause for this Council, for the
Attorneys, for the whole County... if all this has to be relooked at because of your
lie. If it is a lie. And I'm sure that there's people looking into that right now, so
come out with it, if you have a TVR or you want to blur the edges on whether or not
it's a TVR, it'll all come out in the wash, I don't think you're honest. I don't want to
COUNCIL MEETING. - 32 - ~ July 28, 2010
see you on this Council again. That's all I have to say, I want to see you recuse
yourself now, today and that this County... the rest of the Councilmembers insist.
Thank you.
Chair Asing: Thank you. Tim. Go ahead Tim.
Mr. Bynum: Yeah I want to respond, absolutely. First of all, I
do not have a TVR, on Ag land, I never have, I never will... I never said that on the
radio. Somebody this week wrote in a blog commenting on a blog, not a blogger but
somebody doing a comment that I have a TVR, on Ag that is not accurate. I have no
conflict here; if I did I would declare it. I and I appreciate Mr. Rego's testimony, I
agree with almost everything he said because and so I want to answer that question
to... what I've done since I've been on this Council and before is to strongly advocate
regulation of TVR,'s, regulation of Ag subdivisions, I've tried to introduce bills...
Chair Asing: Mr. Bynum...
Mr. Bynum: Excuse me; I'll finish my statement please.
Chair Asing: Well you can finish your statement but I will allow
you to just answer the question... when you have... when we get into discussion,
you may say whatever you want to say but that was just a question.
Mr. Bynum: Okay, you're right. You're correct.
Chair Asing: Answer the question and then we'll get back and
when we get under discussion you may say whatever you want to say.
Mr. Bynum: Okay that's fair enough. My conscience is clear, I
didn't lie, I don't own a TVR, on Ag and I'll save other comments for later.
Chair Asing: Thank you, with that... do we have anyone else?
Yes, come up.
MICHELLE HUGHES: Good morning Council and Chair, my name is
Michelle Hughes and I'm here in support of Bill 2364. First of all I would like to say
something that is in my heart and that is about aloha. I'm feeling very discouraged
right now because I really, I am on this island because of aloha and I really believe
that that is the spirit that should be guiding all of us in everything that we do here.
So I'd like to level the playing field a little bit and just say I congratulate the
County of Kauai because I think we... you all have done a very good thing here and
that is to get control of what was an unregulated industry. No one is debating, that
I know of any way... is debating the fact that regulation was needed for transient
vacation rental business; however, we were the Ag TVR, owners and their vendors
and their associates were harmed by ordinance 864. And all that this bill is trying
to do that I can understand and thank you Tim and Daryl for helping in this regard
is to reinstate a right that was taken away and it is a State law 205-6 and because
of that you are only trying to help the TVR owners who were paying their taxes,
were lawfully in existence as they knew it at the time based on the interpretation of
the statute and the county's interpretation of the law. So we would like the
opportunity to be able to apply for a Special Use Permit which will allow us on a
case by case basis to tell you our story and I think in some cases you're going to find
that it is a very compelling story and that we are trying to spread aloha and that it
is very important to us that the visitor community and industry on this island be
honored and that we are doing our little share to be the ambassadors of aloha in
our own little way. The other issue is that we do employ hundreds and hundreds of
people and as you've heard today many of those people are being affected negatively
COUNCIL MEETING •
not only by the TVR, issue but by
consider that these people will be
want to thank you very much for
today. Thank you.
- 33 - • July 28, 2010
the economy. And I really plead with you to
helped by the passage of this amendment so I
your hard work and I hope that this will pass
Chair Asing: Thank you. Is there anyone else in the audience
who wants to speak on this? Mr. Taylor.
KEN TAYLOR: Chair, members of the Council, my name is Ken
Taylor. Before I get started I would like more clarification on the situation that was
raised earlier but... I past... or had entered into the record which I think you all
received is a copy of names who signed a petition in the last few days and I bring
your attention to the... starting from the back the fourth (4th) page in, at the bottom
of the page it's numbered number seventeen (17) or sixty-seven (67) and this
gentleman makes some comments that I don't agree with all of his comments but it
did... the issue that when he says that Councilmember Tim Bynum has a TVR, on
Ag land, it raised to my issue is that... is this a realty or not and I chased this
gentleman down and he told me that he had heard Tim on, make this comment on
the radio... now I don't know that that happened, I don't know if Tim has a TVR, but
since it's been raised not once but here in this document and earlier today, it seems
to me that the legitimate thing for the Council to do at this point would be to defer
this matter and come back with a report, investigating this and clarifying the air.
I'm not saying that Tim has a problem or he doesn't have a problem but I think
more than this individual, the earlier individual, myself raising this from this
comment and Tim denying it... this is all fine but reality is, it should be a thorough
investigation and some documentation that is there or isn't there any validity to
this and I think anything short of that would be a very big mistake so I hope that
you will at the end of deliberations today defer this item until we have a full report
on, on this matter. And I don't think it's an issue of does he or doesn't he. Just get
the report. As far as the bill today I am speaking in opposing the bill. When I went
back and looked at 205-6 and read some of the information that puts that in place,
it seems to me that in order to take... use 205-6 to use that you have to be in
compliance with 205-4.5...
Mr. Nakamura: Three (3) minutes Mr. Chair.
Mr. Taylor: And without that...
Chair Asing: You want to kind of finish up?
Mr. Taylor: I'm sorry?
Chair Asing: You want to finish up?
Mr. Taylor: Yeah I'm working on it.
Chair Asing: Go ahead.
Mr. Taylor: Thank you. Anyway, in order to take advantage of
205-6 you have to be in compliance with 205-4.5 and short of that there is no,
there's no way to move forward and again I think that you're wrong in trying to
move this forward at this time and I think that it's in the best interest of the
community to deny moving forward with this (inaudible).
Chair Asing: Thank you. Yes, Councilmember Kaneshiro.
COUNCIL MEETING - 34 - ~ July 28, 2010
Mr. Kaneshiro: I have a question for Mr. Taylor. So you're asking
this body to defer this matter and in the circumstances where someone blogs a
bunch of bull about Mr. Kaneshiro, we would have to defer that matter pending
before the Council also?
Mr. Taylor: I'm sorry?
Mr. Kaneshiro: Is that what you're asking?
Mr. Taylor: I didn't understand your question.
Mr. Kaneshiro: Simply I'm asking... you saying to defer this matter
because of Mr. Bynum's particular instance of a blog... so if there's a bunch of bull
about Mr. Kaneshiro...
Mr. Taylor: A bunch of bull?
Mr. Kaneshiro: On any... on any issues of what we are debating...
are you asking this body to make those kinds of decisions to defer the issues until
the bull is proven that it's not right or wrong, is that what you're saying? Is that
what you're asking me today? That's what I heard from what your request came
after stating his position and what you read on a blog.
Mr. Taylor: This isn't a blog, this is a... this is a... a petition
that was circulated on the Internet.
Mr. Kaneshiro: So if a petition is circulated a bunch of bull about
me... and even if I'm here trying to make a decision... we should... I have to ask this
whole body to defer the decision until the bull is even proven right or wrong?
Mr. Taylor: First of all...
Mr. Kaneshiro: Is that what you're asking the body to do?
Mr. Taylor: We're talking about a structure, not bull. And Tim
happened to share with me after last week's meeting that he had a violation issued
from the County that hasn't been dealt with and he wasn't sure how he was going to
deal with it so... if that is your bull, I think there's reason to say in this particular
case and I'll take it case by case and if your bull has enough substance, we will
discuss that at that time but right now there is some substance to the issues that
was raised. I didn't raise this issue, it came up here, it came up earlier today...
Mr. Kaneshiro: Mr. Taylor? You stated that he has a conflict
because he has a TVR, on the land, what I heard from Mr. Bynum is that he said he
doesn't have a TVR on the land but you're still requesting for us to defer this matter
until we investigate whether he has a TVR, or not.
Mr. Taylor: That's just correct and the reason... the primary
reason for asking for that and...
Mr. Kaneshiro: And that's the same reason...
Mr. Taylor: He has, he has a violation from the county on his
property... now if that is, wants to be overlooked by the Council so be it, that's your
choice but I think it's wrong.
COUNCIL MEETING ~ - 35 - • July 28, 2010
Mr. Kaneshiro: You know... so let's say that I... somebody wrote
a... something like this that says I have a TVR on Ag land which is all bull and I
come to you and say... and I make it public I don't... we still want to defer this
meeting to have an investigation whether I do or not? That's what I heard you
testifying for us to do and that's the question I'm asking you.
Mr. Taylor: The only reason I'm asking in Tim's case is...
Mr. Kaneshiro: I'm not asking you about any violations...
Mr. Taylor: Is because of what he told me last week...
Mr. Kaneshiro: I'm not asking you about anything else... I'm
asking you about a conflict of TVRs or not.
Mr. Taylor: Does he or doesn't he? Let's get a small... it
shouldn't take very long to investigate that and get back to the Council...
Mr. Kaneshiro:
weeks.
Mr. Taylor:
Chair Asing:
Mr. Taylor:
Mr. Kaneshiro:
(2) weeks before it con
When you defer this meeting... it'll take two (2)
Full report...
Okay hang on.:.
Full report.
Remember that. If you defer this meeting, it's two
ses back again.
Mr. Taylor: That's okay. Because it will give you adequate time
to do a report. .
Mr. Kaneshiro: That's okay... I'll save my statements when the
meeting is called back to order. I'm done with my questions for Mr. Taylor.
Chair Asing: Thank you, with that... Councilmember Furfaro.
Mr. Furfaro: Thank you Mr. Chair. First of all this body is not
the body that takes the formal complaints and accusations. We need to understand
that the County of Kauai has an Ethics Board that it should be put in writing if you
are believing what is in this documentation and that's where the process goes, to
the Ethics Board in writing. If you're not happy with that, then there's the Office of
Disciplinary Counsel as well, it's a State board, they will respond to complaints that
address legal issues that are framed and they will accept your complaint in writing
but I just want to make a short statement here... Mr. Bynum has said to us that he
does not have a TVR on Ag land and that is what he has stated. This body is not the
investigative power on a written complaint Ken. In all fairness to Mr. Bynum, we
do have a process though... and it is called the Ethics Commission and at the State
level it's called the Office of Disciplinary Counsel. I just wanted to share that with
you. Mr. Chair thank you for giving me that time.
Chair Asing: Thank you. With that Councilmember Bynum.
Mr. Bynum: Hi Ken.
Mr. Taylor: Hi.
COUNCIL MEETING. - 36 - • July 28, 2010
Mr. Bynum: Let me state for the record, I don't have any kind of
TVR on Ag or on any other land, I have never had a transient vacation rental for
one (1) day in any way shape or form. Perhaps you'd like to read the entire
statement that an individual put on the Internet just for the record?
Mr. Taylor: You can read it.
Mr. Bynum: Excuse me?
Mr. Taylor: You can read it...
Mr. Bynum: I choose not to.
Mr. Taylor: I said it in the beginning.
Mr. Bynum: Um but and... I thank Mr. Furfaro for outlining
that if anybody wants to investigate me in any way shape or form they're free to, if
they follow an appropriate and legal process. Mr. Mickens filed a Ethics complaint
against me in the past that got... went to the Ethics Board and went through the
proper process and so I welcome that because I think I'm a pretty straight forward
and honest guy so I'm not worried about that. What I am worried about is that the
rhetoric on this issue is so far over the top that people start trying to use any kind of
mechanism they can to subvert the work that we're sworn to do here at the Council.
So I'm disappointed that you choose to use that same kind of tactic. So... thank
you.
Mr. Taylor: I just in closing would say that...
Mr. Furfaro: Point of order...
Mr. Taylor:
Mr. Furfaro:
his questions...
Chair Asing:
Mr. Taylor:
thank you.
Ms. Kawahara:
Chair Asing:
(inaudible)
He does not have a closing... Mr. Bynum answered
Hang on...
Moral obligation to take care of the issues at hand,
I think there wasn't a question.
Thank you. Can I have a next speaker please?
RON AGOR: Aloha everybody, for the record my name is Ron
Agor. I'm a local guy, I don't have a TVR, I'm not working for anybody who has a
TVR. I don't believe that this bill is a fair bill and with regards to the last comment
on the bull... I go through this weekly on the State level, the North Shore and I
know Tim Bynum and I know for sure he doesn't have a TVR on his property, I just
wanted to say that but I do support the bill. Thank you.
Chair Asing: Thank you. Is there anyone else who wants to
speak? Come up please.
COUNCIL MEETING • - 37 - • July 28, 2010
THOMAS BEBE: Good afternoon Council, my name is Thomas Bebe
and I do not own a vacation rental property but I do work for one. You heard my
testimony before and in this regard today I just would like to thank you for the
opportunity to give honest hard working property owners the opportunity to
continue the work that they have been doing in good faith for twenty (20) or thirty
(30) years. I would like to apologize for other members of the audience and
residents of Kauai who I believe are making personal attacks and trying to make
this a (inaudible) issue between whether you like development, don't like
development... whether you have what they consider a lot of money or don't,
whether you... you know if your land is on Ag land the premise seems to be that you
better darn well farm it and every farm square inch of it. Well we all know that
most of the land on the island is Ag zoned because it's not in residential areas. So I
just feel like this issue has gotten... it's been crazy with emotions and we saw
disgraceful behavior and I just hope that you all consider the people who have been
working for many years under what they believed and what the state (inaudible) a
proper way and that thousands of dollars have been willfully accepted by the State
and tax dollars and now the same people who have been paying this, those dollars
are being told that there's a clause and some law that says that it hasn't been
allowed and they should have never done it, and they should have never given all
that money and they should have never run this honest business and now it's gone.
So I thank you for your time and I understand that you have a difficult task.
Chair Asing: Thank you. Is there anyone else who wants to
speak?
BARBARA ROBESON: Good afternoon Mr. Chair and Councilmembers.
Barbara Robeson for the record. I'm again today speaking on behalf of protect our ~~
neighborhood `ohana which is comprised of citizens, voters and residents in Wainiha
and Ha`ena. My comments that I'm going to be referring to have to do with the bill
that was passed out before the amendment so when I reference, that's the one I'm
coming from because the one that was passed out with the amendments didn't
include what I'm talking about. There is within this bill 2364 proposal to delete
language that requires compliance with State and County laws and that is on page
three (3) section four (4) and then it says 817-10 item (c) and that's that bracketed
language there that says the effective date of this ordinance and was in compliance
with all State and County land use and planning laws including but not limited to
HRS Chapter 205, the Comprehensive Zoning Ordinance, Special Management
Area, Flood Plain Management, and Shoreline Setback laws at the effective date of
this ordinance up to and including the time of application for a nonconforming use
certificate. So my first question is we're still unclear as to what the motivation
behind this bill is and what's the reason for that language being removed from that
bill. By removing the language to comply with State and County laws, we're
wondering if this is consistent with the Kobayashi opinion and to paraphrase that
the opinion said if you don't specifically spell out something that's in an ordinance,
you can still go ahead and do it... so in other words by removing the language then
that would mean to me that you wouldn't have to comply with the law. Now the
compliance with State and County laws besides what was read in here, there's two
(2) State and County laws that come from the Federal law, the SMA comes from the
Coastal Zone Management and the Flood Management comes from FEMA and the
National Flood Insurance Program. For example, concerns about compliance with
the National Flood Insurance Program, the Federal law... we as protect our
neighborhood `ohana, we raised these issues, I think it was November or December
of 2007. Again we made a presentation January 08 to the Council, we had a
slideshow and we raised the issue of flood compliance with transient vacation
rentals and since then we have given a variety of testimony it include and voicing
that concern again and again about jeopardizing the community eligibility for the
National Flood Insurance Program because of noncompliance with the Federal
COUNCIL MEETING - 38 - • July 28, 2010
Program. So a few more questions... does removal of the cited language further
jeopardize the county's participation of the program and under 44(cfr), could the
program be suspended? Would the removal of the language of the bill affect the
current FEMA inquiry in the potential violations of the National Flood Insurance
regulations? We urge you to amend the bill with these really minor little changes
by removing those brackets and leave those deleted language in the bill.
Mr. Nakamura: Three (3) minutes Mr. Chair.
Chair Asing: Thank you. With that, Councilmember Furfaro.
Mr. Furfaro` Barbara thank you for the testimony. I think in
previous presentations to the Council you know I really shared with you that some
of the challenges in this bill there's certainly some of the uncertainly in the laws.
And I have a responsibility to watch out for (inaudible) strings of the County of
Kauai. I did answer you on this particular removal as it was presented to me and I
referenced the Waikiki Market Place case.
Ms. Robeson: Right.
Mr. Furfaro: And in the Waikiki Market Place case the reality
basically says that we could not and I'm just going to frame it quickly, we could not
challenge someone's ability to apply but we certainly could enforce zoning and
building codes, kind of after the fact (inaudible) but to base it on not letting
someone apply, there has been caution in the air from my pursuing that question
and I just want to reiterate that I answered you the last time that way...
Ms. Robeson: Yes you did.
Mr. Furfaro: And I'm a very cautious individual so.
Ms. Robeson: Well we're just wondering if we have to comply,
why is it being taken out of the bill so to reiterate our concern.
Mr. Furfaro: I understood that but the reality is, I'm being told
that after the fact the reality is we can pursue by zoning violations, we can pursue a
building codes... it behooves these individuals to make sure they have compliance
prior to them even having an opportunity to apply and I'm not on one (1) side or the
other, I'm on the County Council recognizing some of my responsibilities. And right
now that's the same answer I gave you a couple weeks ago and I pursued it, believe
me... to get a better understanding of that and that's where it's at.
Ms. Robeson: I'm pursuing it too.
Mr. Furfaro: I understand... we're both pursuing it. Thank you
Barbara.
Chair Asing: Hang on Barbara, Councilmember Bynum.
Mr. Bynum: And I agree with what Councilmember Furfaro said
but I'll just try to say it a little more simply because almost all of the testimony and
discussion for the last several weeks has been about Ag land and this is more about
residential.
Ms. Robeson: Yes, correct.
COUNCIL MEETING ~ - 39 - ~ July 28, 2010
Mr. Bynum: And the, and so I'm going to answer it more
simply... just because we remove that language doesn't mean people don't have to
comply with the law, those laws are in place, they exists. If they're violated, I hope
they're enforced, they should be. There should be corrections and I think the reason
why we haven't had a lot of discussion about this is, unlike Ag land where I
believe... what is legal and what isn't, is not clear at all and is interpreted
differently depending on what county you're in or who you talk to. The law about
this is very clear and anyone could look in HRS 464 and get the HRS or go on the
Internet and it's very clear it says you know you can't phase out these things
retroactively and you can't use code violations as a reason to. So to me it's real clear
so that is out of this, that language came out because we're not allowed to say hey
because you had a code violation, you can't do this use and to me that... unlike the
Ag where we can debate until the cows come home and we'll never come to an
agreement, that to me is very clear and I'd invite anybody to look at 464 and the
notes. And the notes reference Kauai State Supreme Court decisions so this bill in
my mind is very much an attempt to make sure the County of Kauai correctly
applies the law, not circumvent it but apply it.
Ms. Robeson: Well I guess our concern rises above the code
violation into Federal violations.
Mr. Bynum: Right and I think that's being addressed separately
and very specifically.
Ms. Robeson: I hope so.
Mr. Bynum: Yes.
Mr. Furfaro: Thank you Barbara.
Chair Asing: Thank you. Is there anyone else who wants to
testify?
CAREN DIAMOND: Good afternoon Councilmembers, Caren Diamond.
I'm speaking for myself and Protect Our Neighborhood `Ghana. Protect Our
Neighborhood `Ghana is composed by the residents of Wainiha and Ha`ena. The
residents that have lived there for a long time and what, and what you've done and
what is happening is we're making two (2) different classes of citizens, two (2)
different classes as residents, two (2) different classes of landowners... so there's the
one (1) class of landowners that is going to be able to... that will legally be able to
turn their residential property into a commercial vacation rental, a resort. And
then you'll have the landowners that didn't rush to do that maybe because they
were raising families or because they actually lived in their homes, because they
were actually residents... and those won't ever be able to ever do that. So basically
you have the people who have been, who have pushed the issue are going to get
approved and this permit that you're granting people goes for life. It's not like it
goes just for just one (1) individual, these go for life. And you know over and over
again we testified before you what were the... when Planning Department was
implementing the ordinance what did they use to give people their approval and we
still haven't been able to find out, that's still unknown and so as you're looking to
expand this ordinance... it's kind of like a bad kid who keeps being bad. And then
you just give them more and more... and you know we're kind of hearing that well
things are going to get better and we're supposed to trust that but when you've
taken out the things in the bill that make the Planning Commission or the Planning
Department be able to do a good job, I don't see how things could get better. If you
take out inspections then of course you can't see if there's flood violations and
maybe that makes you feel better that you didn't see it. But I don't possibly know
COUNCIL MEETING - 40 - ~ July 28, 2010
how you could enforce if you don't see and if you give a permit and allow people to
have this nonconforming use permit for visitors to stay in that possibly flood
violation unit that you did not see because you did not want look then certainly the
county has a lot of liability when we have a Tsunami or other things like that that
are different kinds of liability than landowners threatening you with a lawsuit if
they don't get their permit. One of the saddest things I heard today, you know one
of the persons who testified here said that this was going to be the first step to
getting agriculture actually on agriculture land and what a bazaar situation that
someone thinks or that the county that the only way that you would be able to get
control over that is to allow agriculture land to be turned into a resort or to be given
a legal permit to have it be a resort. I can't imagine that this Council thinks that
it's okay to have the entire North Shore be a resort because that's what's happening
and if you look at the advertisements, they tell you, you know for vacation rentals
you can look by area now, you can look by visitor destination area and Ha`ena has
its own visitor destination area, so does Hanalei.
Mr. Nakamura: Three (3) minutes Mr. Chair.
Ms. Diamond: Yet nobody ever came before you to ask for a zoning
change, not ever... not ever. Now I hear from the Ag plan people the same thing
that they've been doing it and they want to keep doing it but did anyone get a use
permit? I don't understand why...
Chair Asing: Caren, you want to wrap up please?
Ms. Diamond: I will wrap up, yes. I don't understand why 464 is
being used when 464 speaks to residential. You can't amortize residential uses but
this is clearly a commercial use and I asked the county to look beyond the slim
excuses that we're hearing at the moment and I also want to answer the paying
taxes thing... when people pay taxes on their vacation rental thing... they pay it on
what they earned. That was something that they already got, they earned that
money and paid their fair tax on it. Nothing ever entitles you to something into the
future because you pay tax on it. And I just want to end with... you know when
you... the Real Estate Agents, and Real Estates professionals says that your
property increases forty-six percent (46%) in value as soon as you get the TVR,
distinction on it and so if we ever look at having our agriculture lands be able to be
farmed, I don't think we... that's ever going to happen. Once you made them resort,
it's far more easy to farm tourist than it is to farm vegetables and it's far more
profitable as well. And I just want to end with... I'm really disappointed this week
and I'm sure that many of you heard...
Chair Asing: Caren, you want to wrap up?
Ms. Diamond: I will wrap up... thank you... that three (3) County
Attorneys visited a Councilmember and I'd ask that that Councilmember to respect
and recuse himself not because I think he did anything wrong, I don't but I actually
think any, any impropriety or anything that looks like impropriety on this bill is
really bad or on any bill. And... so I'm really disappointed, I know there's a lot of
political pressure and the politics has driven this and as a citizen I just wanted to
say... it's very sad and sorry.
Chair Asing: Thank you. Councilmember Furfaro.
Mr. Furfaro: Yes Caren thank you for your testimony. Just as I
shared with Barbara the second time on this pursuit of questions as it relates to the
ability for people to apply for their TVR, use as it relates to taxes collected from the
State and GET and the State on their TAT and so forth... I just wanted to let you
COUNCIL MEETING • - 41 - • July 28, 2010
know that I had pursued a request with the County Attorney regarding the issues
with FEMA and the Flood Insurance and I do want to let you know and that's what
I. just checked with them to let you know that we did get a preliminary response.
This Council will get briefed in the very near future but your question did not fall
on deaf ears. The pursuit of those recommendations or compliance have been
pursued.
Ms. Diamond: Thank you.
Mr. Furfaro: Thank you Mr. Chair.
Chair Asing: Councilmember Bynum.
Mr. Bynum: Hi Caren. As usual when you testify you say a lot
of interesting things and I'll just start with where Councilmember Furfaro came
from as that one of the things that I really like about the public process is that we
learn a lot and a lot of us do follow up .on the things we hear and try to address
them because that's our job. But I do want to address two (2) things that you said
one (1) was about creating a special class... I think that's an accurate way to put it.
That people may get a use permit because we have said no more and so that... will
be probably be very valuable if you get to continue but it's also not uncommon in
government. We just passed a Lihu`e Town Core Plan that changed the regulations
about what you can do on Rice Street and it said we're not going to allow a new car
dealer on Rice Street but we're also going to allow Kauai Toyota to continue as long
as they choose to unless they abandon that use and if they abandon it for a period of
time, they can't come back. That's exactly what we're doing with TVR,s. We're
saying you get grandfathered because we changed the rules... and if you abandon
that use for a period of time, you lose it and you can't get it back.
Ms. Diamond: But I'd ask you to show me the rule that said that
they were legal. Show me that statute that said...
Mr. Bynum: That's the debate isn't it? So this bill says you have
an opportunity to go through the mechanisms that we have to legally determine
whether you are legal or not. So... that's what we're trying to do, we're trying to
give people an opportunity to do the due process. The bill says you must comply
with 205-6 and Councilmember Kaneshiro and other Councilmembers have added
some additional things you know that we're trying to go with the spirit intent... for
the best of our ability given the parameters under the law...
Ms. Diamond: But you know number...
Mr. Bynum: I don't make the State law and I don't make... I
don't do the Supreme Court decisions but I am required to honor the State law and
the Supreme Court decisions.
Ms. Diamond: If I just may on page two (2) at the bottom the new
language...
Chair Asing: Caren, Caren...
Ms. Diamond: Says or other circumstances...
Chair Asing: Caren and Councilmember Bynum... I will not let
this exchange...
Ms. Diamond: Sorry.
COUNCIL MEETING - 42 - ~ July 28, 2010
Chair Asing: Go back and forth I think you said your piece. You
have... I have given you an opportunity to testify...
Ms. Diamond: Thank you.
Chair Asing: And...
Ms. Diamond: I am done.
Chair Asing: And so I will not engage in any debate between
Council and yourself so with that, Councilmember Chang.
Mr. Chang: Thank you Chair and thank you Caren. For the
record I guess the reference about a Councilmember meeting with Attorneys that
would refer to myself, so for those of you don't, that don't know out there that there
was a blog that was out there, I am the Councilmember that had the Attorneys
come over to my place. It was given... ah talking about opinions. I feel that I have
met with yourself several times, many phone calls along with Barbara Robeson, we
had breakfast together just like everybody else I want to engage in this process. I
had asked for additional time in May because I don't know the history and I have
rapidly tried to learn the history, number one (1). Number two (2) I believe the
gentleman that started the process of getting involved with the blog is not here and
I was looking forward to addressing that person because in less than aforty-eight
(48) hour period, there was a minimum of six (6) to eight (8) conversations. I've
made myself available and to make a long story short, on Friday evening at 10:15
p.m., he shows up at my house on the courtesy and the aloha of my privacy to speak
to this gentleman longer than I sought the opinion of our Attorneys and brother-
brother... talk story... how's it-how's it... and I felt that I was engaging and I was
talking about opinions and agreeing to disagree and that's exactly what happens. I
will not recuse myself from this very, very, very important vote. The easy way out
for me... fine let me recuse myself, that's the easy way because half the people are
going to be happy, half the people aren't going to be happy, but I was elected by my
people and the constituents to do my job and to vote on this issue. And I will vote
on this issue, I did not do anything wrong in my opinion and I will not recuse myself
from this very, very important vote, thank you very much.
Chair Asing: Thank you. With that, is there anyone else that
wants to speak on this item?
PHIL JONES: My name is Phil Jones and I want to just say that
I'm in support of this bill. I've listened to everyone many, many meetings over few
years and it's a shame to me that we've... it's seems to be against farmers and
against people who are business people and some are rich and some are poor. I
think for everybody on this island we're all wanting to stay here and we all working
hard to stay here and both are very important. And I think this is a nice step to
clearing things up and giving people that had followed the laws in the past the right
to do what others have done in the past so I just wanted to say thank you all for
sitting through this through the many years and I know it's a very tricky topic but I
think this is the right thing to do.
Chair Asing: Thank you. Is there anyone else who wants to
speak? Anyone else who wants to speak going once, going twice... no I,believe you
had your opportunity to speak, I think I let you go over the time limit... is there
anyone else? If not, I'll call the meeting back to order and with that Councilmember
Bynum.
COUNCIL MEETING ~ - 43 - • July 28, 2010
There being no one else to speak on this matter, the meeting was called back to
order, and proceeded as follows:
Mr. Bynum: With your indulgence before we get into discussion
about the bill, I'm really sad that the rhetoric over the last forty-eight (48) hours
have escalated to the point where now we know two (2) Councilmembers have had
unfounded accusations and then people in the public say well because these people
said something in a blog that you know we should derail this, it seems a little
desperate to me and I appreciate Councilmember Chang and myself you know... if
people want to follow up with those unfounded accusations in an appropriate way
that's fine but you know to see the degeneration of suability is sad to me so thank
you.
Chair Asing: Thank you. No, I believe I gave you an
opportunity; I don't want to start extending it further. With that, the meeting is
called to order. And is there any further discussion?
Ms. Kawahara: Are there going to be presentations?
Chair Asing: Pardon me?
Ms. Kawahara: Are there presentation?
Chair Asing: Yes. Why don't we...
Ms. Kawahara: I'd like to save my discussion for after that.
Chair Asing: Why don't we take a short recess and then I'll turn
it over to you and I'll make my presentation. Maybe we'll take a caption break?
We're going to take a ten (10) minute caption break now, thank you.
There being no objections, the Council recessed at 3:12 p.m.
The Council reconvened at 3:33 p.m., and proceeded as follows:
Chair Asing: Good afternoon everybody.
Mr. Chang: Good afternoon.
Chair Asing: The meeting is now called back order. At this point
I'm going to turn over the meeting to the Council Vice Chair, Councilmember
Furfaro as I will be making a short presentation. With that Councilmember
Furfaro.
(Mr. Asing, the presiding officer, relinquished chairmanship to Mr. Furfaro:)
Mr. Furfaro: Chair, you have the floor. (You guys have a spot for
me over there if I moue because...)
Chair Asing: (Am I on? Thank you) Thank you, what I'd like to
do is... I would like to make a short presentation and before starting my
presentation I want to make some comments regarding both the TVR and Farm
Worker Housing bills... I want my colleagues on the Council, the County Attorneys,
the Administration and the public to know that I respect each and every one of their
research, analysis, views and final opinions. The following is a result of my
research, analysis, views and final opinion on the subject. My presentation today
will focus on five (5) primary areas. The first area will be Chapter 205 of the
COUNCIL MEETING ~ - 44 - ~ July 28, 2010
Hawaii Revised Statutes, that is the controlling mechanism for the use of Ag
designated lands in the State. Two (2) the State Attorney General's August 19,
2009 opinion letter to Sandra Kunimoto who is the Chairperson of the State Board
of Agriculture. Third (3rd) the Land Use Commission rules. Fourth (4th) Anthony
Ching the former Executive Director of the Land Use Commission's memo regarding
transient vacation rentals on agricultural land. Five (5) Judge Ronald Ibarra's
decision in the Hokulia case. And lastly, I want to show you and give you some
examples of vacation rentals as they exist on Kauai today especially in the area
that we are most concerned because of the numbers of vacation rental in the area
and that is the North Shore area of our island. With that, this map here where
most of the vacation rentals are located there are vacation rentals on Ag land
throughout the entire island, but I show you this only to let you know that on this
particular map here there are forty-seven (47) vacation rentals in this area alone.
The forty-seven (47) that I'm going to make reference to are not the only vacation
rentals. They are the vacation rentals that have been verified, in other words we
know they are vacation rentals in all of these areas, so these purple here represent
the areas, that's the size of the lot. The lot ranges anywhere from the small quarter
acre parcels on Ag land to quite large areas like twenty-four (24) acres of land...
where vacation rentals exist. In this particular block here the only reason it's
blocked wide, as wide as it is here is because there are five (5) in this area and
they're so close that it was blocked in this map.
(The next slide please) As I said earlier this is the State Attorney General's
opinion. I use this because he is in my opinion the highest ranking legal official in
the State. So I put quite a bit of emphasis and credibility on the State Attorney
General's opinion and I want to just quote some portions of the opinion. Let me pull
out... this happens to be on page four (4). Now you will notice it's again making
reference to 205, so when I said earlier that I'm going to cover 205, 205 is being
covered by the State Attorney General's opinion and that's one of the reasons I'm
using it because he makes direct quotes from that opinion. And let me just read
this... permissible uses within the agricultural districts, (a) within the agricultural
districts all lands with soil classified by land study bureau detail land classification
as overall master productivity rating class (a) and (b) shall be restricted to the
following permitted uses. Now the following uses were really the eighteen (18)
listed ones there. In other words on the (a) and (b) category, if it is not listed, it's
prohibited. Not listed (a) and (b), it's prohibited, that's what the law says. Uses not
expressly permitted in subsection (a) shall be prohibited except as the uses
permitted as provided in section 205-6 and 205-8 and construction of single family
dwelling, family units on lots existing before and this is very important... before
June 4, 1976 any other law to the contrary. Reason this is important is this is when
the State law came into effect, June 4, 1976.
(Take the next one please) Now... within the agricultural district all lands
with soil classified by the Land Study Bureau details land classification as overall
master productivity rating (c), (d), (e) or (u) shall be restricted... shall be restricted
to the uses permitted for agricultural district as set forth in this section here 205-
5(b). Let me read you what it says, may a County allow a Bed and Breakfast or
TVR, within the single family... within a single family dwelling on a agricultural lot
existing prior to June 4, 1976 or within the farm dwelling or other structure on
agricultural lot created after June 4, 1976... if there is no agricultural use activity.
Here's what it says, in the absence of specific facts, however, we cannot... cannot
determine whether the Land Use Commission could find a particular Bed and
Breakfast or TVR, to be compatible, to be compatible with a farm dwelling or
plantation community subdivision. We are not aware of any justification for a Bed
and Breakfast or a TVR, as being compatible... compatible with any agricultural use
or activity. I want you to kind of hold this in mind... Ag use, Ag use...
compatibility, compatibility... Ag land, Ag use... Ag land, Ag use... Ag land, Ag
COUNCIL MEETING • - 45 - • July 28, 2010
use... now Section 205-5 provides that the counties may further define the
accessory, again accessory, agricultural uses... again Ag, think Ag use, Ag use, Ag
land, Ag designation, Ag use. Accessory agricultural uses and services described in
Sections 205-2 and 205-4.5; however, we believe that counties cannot, cannot allow
a Bed and Breakfast or TVR, on agriculture lands under this section, and again I'm
making reference to where is this coming from? It is coming from the State
Attorney General's Office and this is his opinion that I'm reading.
Because a Bed and Breakfast and a TVR, are not similar to any of the listed
items, any of the listed items under 205, they are not, not... bona fide agriculture...
again think agriculture... Ag land, agricultural... don't think about anything else,
Ag land, agriculture. Right, if you can tie in the agriculture then you're okay but tie
it in. Agricultural services or an accessory again to what, agricultural uses. And
the counties may not allow them on agricultural lands under section 205-5(b).
Again who is saying this? Coming from the Attorney General's Office. In summary,
we are not aware of any justification by which a county may allow a Bed and
Breakfast or a TVR, on agricultural lands as permissible use under section 205-2 (d),
205-4.5 (a) or 205-5 (b). I want to go back and read that again. In summary, we are
not aware of any justification by which a county may allow a Bed and Breakfast or a
TVR, on agricultural lands as permissible use under these sections. (next) Let me
read this... in Attorney General's opinion 6337 this Department found that 240
acres of agricultural land to be used for commercial, industrial and residential uses
was not a proper subject for a special permit application. The opinion stated special
permit petitions are intended to allow certain unusual and reasonable... unusual
and reasonable... tied to what? Agriculture, agriculture, think about it Ag land
agriculture use. Uses within the agricultural and rural districts. Its purpose is to
provide a landowner relief in exceptional .situations that would not change, would
not change the essential character. Change the essential character of the district.
Agriculture again, agriculture... don't put something else. That may not change the
essential character of the district nor be inconsistent therewith and is basically
(inaudible) to a variance. Its. function is not to effectuate a boundary change or
create a new district; such powers are legally vested in the Land Use Commission to
be exercised under a different procedure and different criteria. (Next) Except as
otherwise provided in this Chapter uses not expressly permitted in this section
here, and we're looking at the Hawaii Administrative Rules. (Next) Now comes a
letter and this was in June of 2007 and at that time we have here former
Councilmember JoAnn Yukimura writing a memo to Anthony Ching. Anthony
Ching of course was the Director of the Land Use Commission... per your question
are vacation rentals allowed in the State Land Use agricultural district, that is the
question that was posed by Councilmember Yukimura. The response... my
response to your question is that Chapter 205 HRS clearly, clearly prohibits
overnight accommodations such as offered by vacation rentals in the State Land
Use agricultural district. Thank you.
I'm now going to (you want to go back again, okay) this is the Hokulia case
and this is the ruling made by Judge Ibarra and I want you to... I want to use this
and quote a number of areas in this decision, with that. Now Hokulia first of all is a
subdivision, I believe it was twelve hundred and fifty (1,250) acres in size; it is not a
small subdivision. It's a huge subdivision. Now I want to start by saying this is
what Judge Ibarra is saying now and it is lengthy, it is not simple. Let me read
it... despite being a located primarily on agricultural land, Hokulia is a private
luxury resort residential subdivision. According to Hokulia sales brochures,
Hokulia is designed to be the most private Oceanside, golf community in the world.
According to Hokulia marketing plan... the general goal of Oceanside is to establish
Hokulia as the finest Oceanside residential golf communities in the Hawaiian
Islands. By the way this is Judge Ibarra's ruling. Prices of the Hokulia lots range
from six hundred and fifty thousand (650,000) to two point five million dollars,
COUNCIL MEETING ~ - 46 - ~ July 28, 2010
these prices will render agriculture on adjacent properties non-feasible because
those land prices will inflate the value of adjacent properties and at a minimum
discourage agricultural use of such property. We're going to end up losing that too.
This increase in prices will also result in an increase in land taxes and consequently
the cost of production for the farmer within the project and the surrounding
agricultural lands outside the project, so the concern is not just Hokulia by itself but
Hokulia and the adjoining properties.
In 1994 addressing Oceanside request for advice on the State Land Use
Commission declaratory ruling on the project known as Crazy Horse ocean side
Attorney Kristine Low advised, Crazy Horse happens to be a developer on the Big
Island and it was more rental units and it was denied. So we won't go into that
decision... in its declaratory order the LUC ruled that a dwelling situated on land
located in the State agricultural district must be a farm dwelling. Must be a farm
dwelling, please remember that must be a farm dwelling because I'm going to show
you some dwellings and I want you to think farm dwelling when you look at this.
Again I'm going to read it... in its declaratory order the LUC ruled that a dwelling
situated on lands located in the State agricultural district Kilauea and all of the
blue that I showed you is that district also. Now (go back again... let me finish
reading that) the LUC ruled that the State Land Use law preempts, preempts any
county law, any county law, ordinance or rule that authorizes any residential
dwelling as a permissible use within the State agricultural land district.
Conclusion of law... to the extent not expressly contradicted by these
conclusions of law the previous findings in fact of the conclusion of law filed. on
August 2001 and March 17, 2003 regarding the trial... I won't read all of this... I
don't think so but let me just do this, this Court previously found, this Court
previously found the primary use and activities within the agricultural lots are not
agricultural. Furthermore the agriculture use and activities is insubstantial. What
they tried to do in the Hokulia case, they used this big units that they were going to
build for so-called millionaire houses, they used an area that they created this farm
lot and what they decided to do was to use this farm lot and say these big, large
houses their farming activity is on this big farm lot, that's what they were trying to
do. The Judge said "no," inconsequential, it is an attempt to circumvent the law.
The Court further concluded that pursuant to Hawaii Revised Statute Section
Chapter 42 (j), Hokulia CCR are nonbinding on a Hokulia agricultural lot owners,
and I won't read the rest.
Let me just read this one, the feasibility or viability of agriculture is a
relevant, relevant again, agriculture consideration in evaluating whether use of
agriculture land will comply to HRS Chapter 205. While the statute does not
require profitability, any analysis must include the cost of operations including land
and infrastructure cost otherwise any de minimis agricultural activity will be able
to satisfy the restriction of this chapter. In other words if you had something
minimal and you're going to call that agriculture then maybe one (1) horse is
agriculture, that is what the Judge is making reference to. When you start using
terms and meanings that you can take small agriculture things and say but as long
as I have one (1) horse, that's agriculture... so I qualify. Again reading from his
ruling, the LUC regulation supplement the statutory requirements of HRS Chapter
205. The permitted use on (a) and (b) for farm dwelling is extended by Land Use
regulations to a permitted use in (c), (d) and (e) lands. Oceanside amendment of the
CCRs even if relevant as an attempt to cure this defect does not alter this Court's
conclusion, does not alter this Court's conclusion that the use of agricultural lots are
not principally, principally agriculture. The amendment merely gives the lot owner
the ability to engage in farming activity as directed to the homeowners association
and that I was making reference to. Moreover, the agricultural activities a de
minimis and do not change the purpose and character of the development which is,
COUNCIL MEETING • - 47 - • July 28, 2010
which is again going back to... look at resident..,. luxury residential living... let's go
back to agriculture, agriculture. What's happening? The agriculture disappears
and we have this luxury residential living within a setting of a golf course, a club
house, a private lodge and other amenities... unrelated to agriculture activities. So
this is how they were trying to get around the law.
Any dwelling on land classified agriculture must be a farm dwelling. Please
remember this because I'm going to show you some pictures of farm dwellings here
on Kauai and I want you to remember this agriculture land classified farm
dwelling. As defined by HRS Chapter 205-4.5 (a) and (4), the Hokulia residences
are not, are not... farm dwellings. They will not be located on or used in connection
with a farm, nor provide income to its occupants as they must be by 205; rather they
are luxury residence built around and to be used in connection with recreational
activity centered around a golf course, members lodge, and beach club and spa.
Oceanside omission or de minimis reference to an agricultural use of the land in its
promotion material and its emphasis instead is to exemplary lifestyle surrounded
by a golf course, club house, dining facilities, members lodge, beach club and private
luxury home sites selling for one (1) to three million dollars ($3,000,000.00) each
collectively indicate a planned and continued urban use of land. I want you to take
reference to planned and continued urban use of land... the Judge has made
reference here to circumventing the process. Circumventing the process meant that
there is a process, if you want to do luxury type, you take the Ag land and you go
through the process and have it urbanized, now it becomes an urban area, now you
do your luxury homes, that's the process. Don't circumvent the process, you want
to do other activities besides Ag, change the process. The process is there for you to
move into that area and change it to urban, that's the process. Pursuant to HRS
205-4.5, here's what the Judge is saying, Oceanside must seek a boundary
amendment from agriculture to urban from the LUC for the houses to be built.
Simple... you want to do the TVR,s, as an example, those big houses where you want
to rent out, change the zoning. The process is there but don't go and do your TVR,
on the Ag land, that is not to be used for anything other than Ag purposes. So the
Judge is saying this is the process, and when you read the Judge's opinion you're
going to find that in a number of places where he feels that the applicant was really
trying to circumvent the process by not going through there.
Now I will tell you that the Judge admonished even the County of Hawaii,
not only the County... the County Council, the County Planning Commission for
what they allowed to happen. Let me read you this... the County must take
affirmative prevention action to prevent agricultural land and cannot rely on after
the fact measures when a large area of Ag land is involved. And here's the Attorney
General's opinion... without affirmative action prior to subdivision approval, the
county's enforcement ability will be impractical when the county must prosecute
seven hundred and thirty (730) separate owners after the subdivision approval. He
wasn't happy at what the county was doing over there. Any doubt as to whether a
proposed subdivision will result in a significant change of land use should be
resolved in favor of this approval. I'm going to read that again. Any doubt... Any
doubt as to whether a proposed subdivision will result in a significant, significant
change of land use... vacation rentals, significant change from agriculture,
agriculture, agriculture of course... should be resolved in favor of this approval.
I want to now show you what is on our island today. What is on the North
Shore today. This is on Ag land. (go back, back again) this is one (1) portion, it's
called Hale `Ae Kai and this is one (1) portion of the building, that is the structure
there. Look at that. What is this? What is this? Is this a hotel? Ag use, Ag, Ag,
Ag use... is this Ag use? This is almost crazy. Now let me read some of the things
that is there. The house is comprised of four (4) Balinese inspired pavilions. The
central pavilion is accessed across a three thousand five hundred square foot koi
COUNCIL MEETING ~ - 48 - ~ July 28, 2010
pond and features gourmet kitchen, dining area, living room, office and guest
bedroom with a king size bed and bathroom with shower. Each room in the central
pavilion has ocean view lanais with spectacular views of the ocean and the Kilauea
Lighthouse. On the ground floor of the central pavilion the house features a media
room with dropdown projector and screen, full bathroom with shower, and state of
the art exercise room complete with cyber eagle equipment.
Mr. Furfaro: Excuse me, Mr. Chair...
Chair Asing: Ping pong...
Mr. Furfaro: We need some silence in the audience for those of
us on this side is having difficulty in hearing (inaudible).
Chair Asing: Thank you Vice Chair, I appreciate that. The
media room has a queen size sofa bed for a possible maximum occupancy of ten (10).
The master pavilion which is encompasses over one thousand one hundred square
feet, excluding the three lanais... includes a bedroom area with a king size bed, a
wet bar, subzero refrigerator freezer, drawers and a hot water tab for tea, as well as
stunning ocean Kilauea Lighthouse views and garden koi pond lanai and I won't
read the rest. And I won't read this too because it's talking about what is there and
there is also a swimming pool, one thousand six hundred square foot swimming pool
and a Jacuzzi, price... six thousand three hundred dollars per night. Again use
agriculture, agriculture, agriculture... Ag land... what are we doing? What in the
world are we doing?
This is that unit and this is just three (3) areas, this is what it looks like on
the interior okay. This is one (1) more, another one (1)... look at that. Ag use, Ag
land, Ag use... look at that. It's two (2) story... now I show you this because that
building is located here on that particular lot, there are other buildings also and I
wanted to show you this because here I am not going to make reference to this
building here. There is another one here but on this lot there's three (3) large units
like that and I will just be talking about this one (1) here. Now this is the lot that
I'm going to be talking about and it happens to be on a ridge and this is the trail
getting down the ocean area here and these are some of the features here, the suites
here, living room you know, just everything here and I won't go through all of this...
and that's the... this has two (2) floors, both the first and second floor with all of
these amenities on (go to the next slide) now these are just some of the amenities
that are present in that unit. This is another one (1) and again this is what we look
like, this unit in here (you want to go to the next one) and here it is, you know
another big unit. It's just incredible on what is out there on our Ag lands, on the
North Shore area. Now let me show you this, look at this here... price... six
thousand three hundred to nine thousand five hundred per night, per night. This is
not me, I didn't put this here, I am reading from the information that is provided on
the website. And let me just read it here... enjoy simple elegance with profound
views. Let me give you the prices here... seven thousand five hundred nightly rate
for six (6) night or less and for six (6) nights it's forty-five thousand. For six (6)
nights here because it is the holiday rate. If you do holiday then its fifty-seven
thousand six hundred dollars for six (6) nights. Now I must tell you that when I
looked at this, I said something's wrong. Something is wrong, this is not right
because it is too high. So what I ended up doing is going back again and that's what
I found again, there the price I looked at and there you go the sixty-three hundred
and the ninety-five hundred per night for holidays. So I questioned one of the slides
but in trying to verify it, I went back and looked and found this and so I'm sure
that's the correct price, okay? These are the amenities in that particular unit. This
happens to be one more area here and we can go to the next slide. And these are
just the amenities that are there. This is one more of the unit here. I won't go
COUNCIL MEETING • - 49 - • July 28, 2010
through these amenities here but this is what it looks like as far as the units are
concerned. So again I just have to emphasize Ag activity, Ag use, Ag use, Ag use,
Ag designated land, Ag designated land... what are we using it for? Let me just
finish up by saying this, this is one (1), this is one (1) more... and this is one (1)
more... combined, look at what we have here.
Here's what I want to do, as Judge Ibarra noted in the Hokulia decision, any
analysis as to whether the use of agricultural land complies, complies with Chapter
205 must include cost of operations. These photos that I showed you and that
resources being used for agricultural operations if any pale in comparison to the
resources being used for resort operation. Entirely wrong, entirely in contrary,
contrary to 205. It cannot be compatible, it cannot be accessory. It is not an
accessory. Accessory again, accessory Ag, accessory Ag... it's got to have some tie
and there is no tie and that is what the Judge is saying. These photos show that
the resources being used for agricultural operations if any pale in comparison to the
resources being used for resort operations. If we allow vacation rentals to become
the dominant use in the Ag district, we are not doing our duty to protect
agricultural land, this would be an absurd result of Chapter 205. For these reasons
I cannot vote for this bill, I hope that what I had presented will give other
Councilmembers food for thought and that they reconsider their position and vote
`against the bill, thank you.
Mr. Furfaro: Can I have your attention in the audience please?
Mr. Chair, I just want to thank you for the presentation, I mean the other portion of
that as you shown us exactly the reason why we need to regulate and I want to
make reference to the fact that I was on the General Plan when this was brought to
our attention and I was a member of the Ad hoc Committee that Councilwoman
Yukimura worked on and in all of those particular parts the message was we need
to regulate what's happening here and the fact of the matter is unfortunately it has
taken us eight (8) years to go through this process and it is so stated in the General
Plan. I would also like to make some notes about our rules. We are in session as a
group and our rules indicate and I shared this with the Chair before that when the
Chairman of the presiding officer turns over the meeting so that he can make a
presentation and so forth, the meeting needs to stay with the Vice Chair until the
item is disposed of.
Chair Asing: That is not my opinion.
Mr. Furfaro: I understand. May I have the County Attorney up
please? If you want to find yourself understanding the rules, I would share with
you that I've made this expression many times prior to this, our rules say that when
we have a passing of the Chairmanship duties, until the item is disposed the item
stays with the Vice Chair, that is our rules. And we have attempted to change the
rules in the past but unfortunately we have not had any collaboration to do so. So
before we go forward, I would like to get a clarification from the County Attorney as
this item has been turned over to the Vice Chair and it is my understanding until
the item is disposed, this meeting has been turned over to me.
There being no objections, the rules were suspended.
Mr. Castillo: ~ Councilmember Furfaro, Vice Chair... on this
matter regarding what you're talking about... that is true. When the... in this
instance when the Council, when the Council Chair relinquishes the gavel to you, as
he is... he was the presiding officer and you became the presiding officer and
Robert's Rules of Order states that the Chair should not return to it until the
pending main question has been disposed o£ Now the reason for this, this is
founded in impartiality. In this case where the Chair has made a presentation and
COUNCIL MEETING • - 50 - • July 28, 2010
distinctly showed his partiality in terms of where he's going to vote on the measure,
in this instant he has shown himself to be a partisan and the act of him returning or
the act-. of the gavel being returned to him may destroy the members confidence in
the impartiality of his approach to the task at hand and so in essence what I'm
saying is, yes you are correct you have the gavel, you will have the gavel until the
vote on this matter have been concluded.
Mr. Furfaro: May I ask do I have the prerogative then to put the
return of the gavel in the Chair's hands by a vote of the members? Do I have that...
Mr. Castillo: You have... you may have the prerogative but
again the question here is one of impartiality because of the fact that the Chair has
shown his vote, there comes a question of whether or not the Chair can preside over
this body with impartiality. So I don't know if I answered your question.
Mr. Furfaro: Well I am going to put it to a vote, my point is that
we understand the rules, so I'd like to make a motion to propose that Mr. Asing
return as Chairman for the remainder of this item. I would like to make that
motion, do I have a seconded for discussion?
The meeting was called back to order, and proceeded as follows:
Mr. Furfaro moved to return the chairmanship to Mr. Asing, seconded by
Mr. Kawakami.
Mr. Furfaro: There is discussion on the floor. Mr. Kawakami.
Mr. Kawakami: I think that if the Chair cannot fulfill his duties as
Chair without being impartial while we're in deliberation, anyone of us can call a
point of order...
Mr. Furfaro: That is correct.
it.
Mr. Kawakami: And get back in line, so I don't see a big deal about
Mr. Furfaro: Okay, any further discussion? Mr. Bynum.
Mr. Bynum: I just you know I guess my reading of Robert's
Rules that recommends that change but I don't have any problem with the Chair
continuing with being the Chair in the meeting.
Mr. Furfaro: I appreciate it that and my only point here is I
want to make sure people understand that we are a body governed by rules.
Mr. Kaneshiro did you have anything?
Mr. Kaneshiro: No I don't have any comments.
Mr. Furfaro: Okay.
Mr. Kaneshiro: To that and I would respect your vote and support
it.
Mr. Furfaro: Thank you very much. Councilmember Kawahara.
COUNCIL MEETING • - 51 - • July 28, 2010
Ms. Kawahara: I definitely find this extremely interesting. I've
seen the Chair take over... made presentations many of times with partiality and I
did not realize that that was the Robert's Rules of Order that required if the Chair
showed partiality that it might prove a problem to the deciding factor. I would like
to say for the record and I looked this up really quick when this came up... the
Chairman sometimes calls a member to the chair and takes part in the debate, this
should rarely be done and nothing can justify it in a case where much feeling is
shown and there is a liability to difficulty in preserving order. If the Chairman has
even appearance of being impartial he loses much of his ability to control those who
are on the opposite side of the question and basically there's nothing to justify some
unfortunate habits. So being a freshman member and seeing that this has been the
practice, I just find it very interesting that we haven't been doing it quite yet.
past...
Mr. Furfaro: I can assure you that I've raised the question in the
Ms. Kawahara: Yes.
Mr. Furfaro: And did not necessarily have the support to raise
that question but I would like to turn the gavel back to Mr. Asing and I have made
that motion, I had a seconded by Mr. Kawakami. I just wanted to make a point on
our rules. Is there any further discussion? On that note, Chair Asing before we
turn the meeting back over to you, may I ask that we can at least have the County
Attorney for a couple of questions on 205?
Chair Asing: Sure.
Mr. Furfaro: Okay it has been motioned by myself and seconded
by Mr. Kawakami. All those in favor please signify by saying "aye".
Mr. Bynum, Mr. Chang, Mr. Kaneshiro, Mr. Kawakami: Aye.
.Mr. Furfaro:
Ms. Kawahara
Any oppose?
No.
The motion to return chairmanship duties to Mr. Asing was then put, and carried
by a vote of 6:1 (Ms. Kawahara voting no).
Mr. Furfaro: Hearing none, Mr. Asing you have the floor back.
Chair Asing: Thank you. I want thank you Councilmember
Furfaro for your turning over the Chair to me. I can assure you that I have never
been impartial to anyone in Chairing... everyone has had the same opportunity in
any discussion that I've Chaired, so I wanted to let you know that and I want to
thank you for letting...
Mr. Furfaro: That is one of the reasons I had no problem
returning the Chairmanship to you but I did want to point out what is referenced in
our rules.
Chair Asing: Thank you. With that... the rules are suspended.
Mr. Furfaro: Thank you very much.
There being no objections, the rules were suspended.
COUNCIL MEETING ~ - 52 - • July 28, 2010
Mr. Castillo: Excuse me Chair Asing, I know you wanted... there
was a request for the County Attorney up here... I have read all of the case law that
you cited and more, and every that... however, the technicians are, the deputies
that are highly involved in this are Ian Jung and Michael Dahilig, so I ask that they
be present here to answer your questions.
Mr. Furfaro: Thank you.
Chair Asing: Thank you.
Mr. Furfaro: Gentlemen.
Chair Asing: With that...
Mr. Furfaro: I do want to say that I think in addition showing
some of the practices that have happened on issuing permits and so forth, I think
the Chair made an excellent case on why we're at where we're at today and that is
we need to regulate this process and I can share with you in the General Plan of
which I was present there was an effort to stop the proliferation and for me that's
what I believe this bill is all about to finally draw the line in the sand, going
forward. Now many things were referenced in the case on the Big Island as well as
205-5 and so forth but the one I'm most concerned with is 205-6 and I would like
you to expand on that for me if you could please.
Mr. Jung: As the deputy Attorney General's opinion did
mention that they are permissible uses under 205-2 and 205-4.5 and the Chair did
identify that of those uses if they're not permissible, they're prohibited right? But
the Attorney General opinion also mentions that there are other uses that are
allowed through the special permit process. And the special permit process has
been in play within this county for a number of years and the special permit process
has actually been used by the LUC with regard to the Kahili Adventist School to
allow for transient vacation rentals up on that particular property. So the LUC has
made its original ruling back in the 60s and in the 70s regarding that particular
special permit, yes. But the special permit is a unique permit because it's under
205 but... 205-6 and you look at the unusual and reasonable use of a particular
applicant. Now in this particular case someone would be coming in for a transient
vacation operation, so the... what the bill the way Couricilmember Kaneshiro left it
was in addition to the special permit process, you also have to entail that the
particular dwelling is not just a dwelling is a farm dwelling. So it still has to
promote the effectiveness of Chapter 205 so they still have to show that there is a
farming operation.
Mr. Furfaro: So showing that it is a farm dwelling which is the
verbiage in this bill clarify things when each of these applicants who were active
March 7, 2008, they can show that relationship in front of the Planning
Commission?
Mr. Jung: That's correct and the Planning Commission would
then take it on a case by case basis to analyze certain criteria that's laid out in
205... in Chapter 13 of our Planning Commission rules if the property is less than
fifteen (15) acres but if the property is over fifteen (15) acres then it would be both
get an approval... it would require an approval of the Planning Commission and
then get kicked up to the LUC for final disposition. So the property is over fifteen
(15) acres then it would require two (2) approvals and then the LUC would also
make a determination and could also impose additional conditions to what has been
listed in this particular bill.
COUNCIL MEETING ~ - 53 - • July 28, 2010
Mr. Furfaro: And again agricultural lands under fifteen (15)
acres do come under the jurisdiction of the Planning Commission and this Council?
Mr. Jung: That's correct... of the Planning Commission.
Mr. Furfaro: Planning Commission... that's correct?
Mr. Jung: Yes.
Mr. Furfaro: Okay. Thank you gentlemen.
Chair Asing: Let me, let me ask this question... yes they come
under the Planning Commission but the rules still apply, State rules?
Mr. Jung: That's correct Chair... the LUC rules...
Chair Asing: Okay well I just wanted to make that point. The
point that I'm simply making is yes it is under the county but the rules governing
that land is still the same.
Mr. Jung: That's correct.
Chair Asing: The rules remain the same.
Mr. Jung: And the Planning Commission...
Chair Asing: The body administrating the rules is different...
Mr. Jung: And the Planning Commission...
Chair Asing: But the rules are...
Mr. Jung: Has adopted the special permit rules that are
instituted within the LUC rules.
Chair Asing: Okay thank you. I appreciate that.
Mr. Furfaro: So could I just have him repeat that again?
Chair Asing: Sure.
Mr. Furfaro: The Planning Commission has adopted those rules
that parallel the State?
Mr. Jung: Yes and they are five (5) criteria within 205-6
process.
Mr. Furfaro: Okay.
Mr. Jung: And our rules mirror the LUC rules under Chapter
13 in our particular rules of Planning Commission.
Mr. Furfaro: Thank you. Back to you Mr. Chair.
Chair Asing: Go ahead Councilmember Kawakami.
COUNCIL MEETING ~ - 54 - ~ July 28, 2010
Mr. Kawakami: Thank you Mr. Chair and since we're referencing
205-6 in regards to the special permit, I agree it clearly states that somebody can
apply for a special permit so prior to... what is the date March 7, 2008 anybody
could have applied for a special permit, so in your guys records how many people
actually applied for a special permit?
Mr. Jung: I believe and you know that would probably be a
better question for the Planning Department staff but I think there was one (1) or
two (2) with regard to Bed and Breakfast.
Mr. Kawakami: Okay.
Mr. Jung: Or what we now refer to as a home stay.
there?
Mr. Kawakami: That's all I have.
Chair Asing: Can I follow up on that?
Mr. Kawakami: Yes. You the Chair. I wish I was sometimes...
Chair Asing: Well are you trying to imply that the process was
Mr. Kawakami: Are you asking me if I'm trying to imply that the
process was there?
Chair Asing: Yeah because...
Mr. Kawakami: Well.
Chair Asing: Because the opportunity to apply was there but
they did not apply. The opportunity was there.
Mr. Kawakami: Yeah.
Chair Asing: So we cannot say that they didn't have an
opportunity because the opportunity was there and that's what I'm trying to clarify
because I'm hearing that we want to give an opportunity, we want to give an
opportunity... you had an opportunity, you did not use it. Now you want to say but
I didn't have an opportunity so I need an opportunity, that's what I'm trying to say.
The opportunity was there and that's where I'm coming from. Thank you.
Mr. Furfaro: Is there anyone... do you have a question? The
Chair can recognize you.
Chair Asing: Yes go ahead... anyone have questions for the
County Attorney? Go ahead Councilmember Bynum.
Mr. Bynum: Thank you gentlemen, I'm going to try to refrain
from having a dialog and just ask questions... in the Chair's presentation he quoted
as we seen quoted here several times from the AGs opinion, language that seem
pretty unambiguous. I can find no justification how counties could under section
205 (inaudible) all these numbers correct?
Mr. Jung: Well I think the AG's opinion references is 205-4.5
as well as what the county could look at as accessory use under 205 (b).
COUNCIL MEETING ~ - 55 - ~ July 28, 2010
Mr. Bynum: Right so basically says you really can't justify this
as an accessory use? That's what the AG's opinion says?
Mr. Jung: I think that was the intent.
Mr. Bynum: But this bill is not contemplating an application as
an accessory use, is that correct?
Mr. Jung: That's correct.
Mr. Bynum: So it's not under that section where there was clear
language, it's under section 205-6 right? Because the bill says in Kaneshiro's
amendment says in addition to special permit standard set forth in HRS section
205-6... I just wanted to be clear that this bill would allow people to make that
argument under 205-6, not under 205-5.
Mr. Jung: That's correct, which would require a full public
hearing before the Planning Commission.
Mr. Bynum: Right. Does this bill as written legalize TVR,s on
Ag land?
Mr. Jung: It does not legalize TVR on Ag land because the
intent of the bill is to allow them to come in to apply for the special permit.
Mr. Bynum: The Chair quoted extensively from the Ibarra... the
Judge Ibarra's decision in the Hokulia case which was primarily about Ag
subdivisions, correct?
Mr. Jung: Yep.
Mr. Bynum: I've read that opinion, I'm a fan of that opinion but
that opinion is not precedent setting in the State of Hawaii, is it?
Mr. Jung: That's correct. It's not within the (inaudible)
decisive system which we establish our precedent to, for us as attorneys to rely on
when we submit documentations to the Court.
Mr. Bynum: Do you recall offhand what year that decision was?
Mr. Jung: I think it was in the...
Mr. Bynum: That's okay if you don't, I don't recall offhand, but
you know why we came familiar with... I mean a lot of people thought that if that...
that that would be appealed to the Supreme Court and then we might have court
decisions that gave us some guidance but that never occurred?
Mr. Jung: That never occurred and it would have been
instructed probably in this matter.
Mr. Bynum: Again that was primary about agricultural
subdivisions?
Mr. Jung: As a master planned community.
COUNCIL MEETING ~ - 56 - ~ July 28, 2010
Mr. Bynum: So okay I'll... when you mentioned earlier
something that I haven't heard before that the LUC allowed a special permit for
Kahili Adventist for transient accommodations in the past?
Mr. Jung: That's correct. They do have... I forget the exact
number of the particular units up there but I think it's between fourteen (14) and
eighteen (18) that the LUC did approve back in the 60s.
Mr. Bynum: And ah... I don't want to ask a question that's out
of bounds but are you aware that Maui County is currently allowing special use
permits for overnight accommodations on Ag land?
Mr. Jung: They do.
Mr. Bynum: Okay. So they must not feel like it's blanket
illegal?
Mr. Jung: They recognize the special permit process and
implemented that particular process but that difference I think that Maui has with
regard with transient vacation rentals is they have implemented an ordinance back
in the 80s to regulate transient vacation rentals.
Mr. Bynum: Right and we did one in 2008, right?
Mr. Jung: That's correct.
Mr. Bynum: Okay. And the County has the authority to say...
to regulate and say no new vacation rentals outside the VDA?
Mr. Jung:
Mr. Bynum:
Mr. Jung:
Mr. Bynum:
Mr. Jung:
Mr. Bynum:
Chair Asing:
Councilmember Kawahara.
Ms. Kawahara
Chair Asing:
You do have that authority.
And we've done that?
That's correct.
And nothing in this bill changes that?
No.
Okay thank you.
Councilmember Kawakami
Thank you... just for clarification...
Go ahead.
and then
Ms. Kawahara: Thanks. As the Supreme Court... is the Supreme
Court the highest law of the land, the Hawaii Supreme Court the highest law of the
land in the State of Hawaii?
Mr. Jung: In the State of Hawaii it is.
Ms. Kawahara: Oh okay, so it's not the Attorney General... the
State Attorney General?
COUNCIL MEETING • - 57 - • July 28, 2010
Mr. Jung: It is... it is not.
Ms. Kawahara: Thank you.
Chair Asing: Okay. Councilmember Kawakami.
Mr. Kawakami: Thank you Mr. Chair. This is going to sound like a
silly question but is the word lawful the same as legal?
Mr. Dahilig: The word...
Mr. Kawakami: Lawful the same as legal?
Mr. Dahilig: Is this thing on?
Mr. Bynum: Yes.
Mr. Dahilig: Is the word lawful the same as legal um... I would
use the word lawful in more of a context of whether you're trying to determine if
that particular action.:.
Mr. Kawakami: Okay because...
Mr. Dahilig: Is it lawful, and if you're looking at it from a... I
understand that it may be interchangeably used but that... in my own opinion there
is some distinction in terms of how you would use it but generally it would mean the
same thing.
Mr. Kawakami: Okay and I find it, I find that good because the
question that was previously posted is does this, does this amendment legalize
vacation rentals and the answer was... it doesn't. But what this does is claim that
it was legal all along because just in the language of the bill it says the purpose of
this section is to provide a process to identify and register. those single family
transient vacation rentals as nonconforming uses which has been in lawful use prior
to the effective date of this ordinance, so of course this bill doesn't legalize it
because the claim is that it was always legal. Now how is it legal without a special
use permit, according to 205-6?
Mr. Dahilig: I think you pose a very good question and it may
actually be... I may want to point to what the Chair did in his presentation with
respect to the Attorney General's opinion as to evidence that shows whether a TVR
or a Bed and Breakfast is a lawful use that comports with Chapter 205 Section 4.5.
What you want to take a look at is they leave the question a little open ended and
do not have the exact phrase in front of me but they particularly say that they
cannot find any circumstance where a TVR or a Bed and Breakfast could be legal
under Chapter 205. But it doesn't make a definitive disposition in terms of them
saying it's absolutely not allowed. So what you're looking at is a circumstance
where they are individuals that was caught up in the 864 and 876 process that were
asserting that they were legal under Chapter 205. However given the way that the
process was executed and actually run through, the evidence to determine whether
or not a property was legal under Chapter 205 was not actually included in the
dossier before the Planning Department and the Planning Commission so I do, I
don't want to steer away from your initial question asking whether something was
lawfully in use prior to March 7, 2008 but part of that determination is looking at
the facts and obtaining more facts through the special permit process to determine
whether or not a TVR or Bed and Breakfast was a legal use.
COUNCIL MEETING ~ - 58 - ~ July 28, 2010
Mr. Kawakami: Okay and just a comment you know this whole, just
a route that this thing is taking I mean... the lawmakers are the problem in this
thing. It's not the guys that have build the American dream, I mean that's what it
is... it's the American dream. I don't want to discourage that, I want every young
fellow out there to see what's you know what you can accomplish when you put your
mind to it I mean that is what the American dream is, it's not their fault that
they're successful. It came with a lot of hard work but you know we're the problem,
the lawmakers. Because we create laws like this where you ask a simple question
and you get this answer where any layman wouldn't be able to interpret I mean and
I'm just being honest. And I have my points on why I'm not going to support it but
you look at this, what we're dealing with, the rule book... it ain't user friendly. It's
not. It's not and it's your fault and it's not the attorney's fault but, but I'll take the
blame you know... it's the lawmakers that come up with these laws, you know it's
not clear. So thank you.
Chair Asing: I was going to make a comment but I won't make
that comment... ah maybe I should make the comment... you know it's many times
the laws are not going to be as clear as black and white but as Judge Ibarra was
trying to say, yeah... was the reasonableness and the absurdity of the law would not
be the intended use, so you need to look at that and that is the reason I keep saying
agriculture, agriculture, agriculture... think agriculture because agricultural
designated land, so if you think that way, the way the law was intended to be
administered then the reasoning you use you are more likely to understand what
the law meant, it's intended use so that was what I was trying to do which is what
Judge Ibarra is trying to do all along if you look and trace his comments, you will
find that... you know intent, intent, intent... for, what for, Ag... Ag land, Ag
purpose, Ag land, Ag purpose... and when you throw in accessory, accessory to
what... Ag... accessory to Ag, not accessory to this big buildings. You know and
that's the way you know I was taught to interpret rules. I've done basketball
officiated for twenty-five (25) years, worked all the big games- in Honolulu, all the
college games and we're taught that. It's called game law, intent, intent of law.
What was the intent of this rule? Look behind it, understand it and use that as a
guideline so those are just comments that I have. With that Councilmembers any
questions for the County Attorney?
Mr. Furfaro: I have one (1) more.
Chair Asing: Go ahead.
Mr. Furfaro: You know the... with the passing of this bill are we
feeling that we can control the proliferation of future TVRs?
Mr. Dahilig: The way that the bill is written Vice Chair, I would
take a look again at ordinance 864 and the first control is already there and that.
control is to not allow any transient vacation rentals outside... single family
transient vacation rentals outside the VDA.
Mr. Furfaro: New ones?
Mr. Dahilig: Um... any new ones. This in essence is still tailing
or dovetailing that process of registration and determination whether there was a
legal use prior to March 7, 2008. So there would not be any new TVRs that will be
created out of this that were not in existence prior to March 7, 2008, rather it is
again the dovetailing of that particular process to help determine whether
particular lawful uses were in fact lawful as represented by applicants or they were
not lawful.
COUNCIL MEETING • - 59 - • July 28, 2010
Mr. Furfaro: I just want to read you 4292 in the General Plan
that talks about the Planning Department although this is now at the Council. The
Planning Department shall consult with State offices of Planning to interpret
existing State statutes with regard to permitting alternatives for visitor
accommodations within the State agricultural district under a special use permit. If
necessary the County Council shall propose the... proposed I'm sorry I don't have
my glasses... alternative amendments. The implementation actions relating to
alternative vacation rentals shall be a top priority, this is eight (8) years ago... and
shall be initiated forth worth... forthwith by the Planning Department. I think this
bill helps us accommodate what was stated in our need not to let TVR,s proliferate.
I think that's what that message is from the thirty-six (36) citizens that sat on this
board. But what I'm hearing from you, it gives us a stronger position to protect any
future growth in these areas?
Mr. Dahilig: That's correct.
Mr. Furfaro: Thank you Mr. Chair.
Chair Asing: Thank you. Any other questions for the County
Attorney's Office? If not, I have one (1) question and I think it's going to be a
difficult question for you to answer but I think I should ask it... is it possible... I'm
going to ask you again... is it possible and I'm going to repeat it again, is it possible
for one of these units that I showed there to appear before the Commission under
this ordinance and get a permit to operate? Is it possible?
Mr. Dahilig: So Mr. Chair you're asking...
Chair Asing: Could that happen?
Mr. Dahilig: You're asking whether it's possible...
Chair Asing: Yes.
Mr. Dahilig: Whether the units that you showed in your
particular...
Chair Asing: Yeah.
Mr. Dahilig: PowerPoint could apply through this process?
Chair Asing: Not apply. I'm saying is it possible for that, one of
those buildings to get a permit so that they can in fact be legal? Is it possible?
Mr. Dahilig: Again not knowing the particular facts of what...
Chair Asing: Don't... wait a minute now, it's simple. It's a
simple question...
Mr. Dahilig: I thought it was a difficult question there...
Chair Asing: Is it possible?
Mr. Dahilig: Again...
Chair Asing: Pretty simple question...
Mr. Dahilig: Without the...
COUNCIL MEETING ~ - 60 - ~ July 28, 2010
Chair Asing: Is it possible?
Mr. Dahilig: Without the facts that are on these particular units
that are there, I cannot render any type of answer...
Chair Asing: And...
Mr. Dahilig: To your question... I understand...
Chair Asing: Okay thank you Mike.
Mr. Dahilig: You would like a yes or no question...
Chair Asing: And I understand Mike... thank you very much and
that's the reason why I'm against this bill. That's the reason I'm against this bill
because it could be possible.
Mr. Castillo: Council Chair. Excuse me, County Attorney... and
this is why I basically said that you know in arguing with our... your own County
Attorney.. .
Chair Asing: Okay.
Mr. Castillo: I mean it's beyond what the Council Chair should
be doing so and...
Chair Asing: Thank you.
Mr. Castillo: And if you have your opinions then please go back
into session and if you have a question for the attorneys please ask the question,
have the answer and then we can sit down. I would appreciate that. Thank you.
Chair Asing: Thank you. Thank you, no further questions.
Mr. Dahilig: Thank you Chair.
The meeting was called back to order, and proceeded as follows:
Chair Asing: With that any further discussion? We're on the bill
now, we have a motion to approve the bill as amended, we are in discussion now so
with that Councilmember Bynum.
Mr. Bynum: Yeah... I knew today was going to be an interesting
day, I didn't know exactly how it would be but and it certainly is. I know that I've
been involved in this debate and this discussion for six (6) years or more. This is
the umpteenth Council meeting where we've gone back and forth about this and I've
come to my own conclusions to the best of my human ability so I want to say a few
things and you know I probably could go on for as long as the Chair did and
someday I will about other issues and I know later I'll wish I would have said
something I didn't say but I want to start with... I really appreciate the County
Attorney coming up and answering some legal questions, the sky did not fall, it was
healthy and I trust them to know their appropriate boundaries and so I hope we can
do that in future meetings and not be so constrained about having a legal discourse
that includes our confident attorneys. The other thing is... so then I'll just go to the
general things... we've talked about the General Plan today, the General Plan
inspired me to run for elected office because it's an inspired document and I am
COUNCIL MEETING • - 61 - • July 28, 2010
going to do a lengthy presentation on a future bill that goes into .that history
because I'm kind of a history buff too, and I have been since I've been a
Councilmember. The ability to look at the transcripts of Council meetings back ten
(10) years or twelve (12) years, the public can do that for the last couple years but
you can't go back to 2000 and see what Councilmembers said about these issues.
You know it's not easy to access that, you know, but you know this issue about
agricultural land and today TVR,s and subdivisions got mixed up and you know the
Judge Ibarra's decision which I've read a number of times is really about
agricultural subdivisions which continue unabated on this island till this day, okay.
And... but when it comes to TVR,s we all know what reality is that what you can
and can't do on agricultural land and the way the laws are interpreted and used and
whether it's a farm dwelling agreement, it's ridiculous... it's a joke and we all know
it. I'm looking at Mr. Oyama because I've read his testimony before this Council for
more than twelve (12) or fourteen (14) years and he... in his exasperation about not
having just plain simple logic prevail and I think that's what the Chair position was
and I really like what Councilmember Kawakami said... the lawmakers are the
problem. I think if there's someone to blame for this, it really comes down to the
political people... the Planning people have tried to give us guidance, the
community has tried to give us guidance, they gave us our marching orders in that
2000 document and it took us eight (8) years to regulate TVR,s. So I want to tell you
and we still haven't dealt with this gentlemen estates and agricultural subdivisions
and so I want to tell you that it's not for the lack of trying. In 2000 then
Councilmember Bryan Baptiste brought forward moratorium on Ag subdivisions
and said we have to address these issues that are happening in the General Plan
and the Council at the time said oh good idea because we don't need a moratorium
because we're going to redo the CZO within six (6) months... the CZO didn't get
renewed in six (6) months, it hasn't been renewed since the 70s, we're still waiting
for it, okay? But it's like ho it's going to happen in six (6) months, good idea Bryan
but no we don't have to stop the bleeding now because we're going to fix it soon.
Couple years later the Planning Department brought a bill here that would have
reduced density, controlled these things, put in class 4 zoning and dealt with
gentlemen estates right and the Council hemmed and (inaudible) and deferred it for
eight (8) years, these are facts. They are in the General Plan. In 2008 then Mayor
Bryan Baptiste brought the same provision that he had done in 2000, in the year
2000 before this Council and the Council rejected it. Two (2) months ago I tried to
put a class 4 zoning bill to address Ag subdivisions on the Council agenda and it's
not there yet and I'm still working on it and so when that bill comes that addresses
what I think is the four hundred (400) pound gorilla in and what Mr. Long I think
addressed here today and what Mr. Rego addressed here today and very powerful
and appropriate testimony, you know we got to deal with that four hundred (400)
pound gorilla. I know that this is the top priority for me on the Council. But
bringing this back to TVR,s, I also know that a lot of good people didn't go out and do
evil things and violate the law, we did... even a lot of them testified here today, they
did what they thought was right, they hired attorneys who said you're good. They
talked to professionals who said everything's fine, they didn't apply for a special use
permit because there was no norm in our community that that was an expectation,
nobody from the County or State ever said that you got to do this, right? In fact we
went deep into this debate about vacation rentals talking about well we're going to
grandfather you if you're legal and the whole discussion for months and this is in
the public record please do the. research. The whole discussion for months was did
you pay your TAT, you know... and that was a big discussion about zoning
violations and building codes and tons of Executive Sessions which I moved to make
public here but I couldn't get the votes... you know this is all public record. But
there was... and all of a sudden it was like oh but if you're on Ag, you're illegal and
the debate got polarized again and we passed a bill that had "gotcha" provisions
that I believe from the best of my heart and mind from talking to not only our
attorneys but other peoples attorneys and other island attorneys because I do work
COUNCIL MEETING • - 62 - • July 28, 2010
hard at this job, I'm trying to do my due diligence to make the best decision I can
but we, you know, we... government can say from this point forward new rules okay
but when government says and we're going to try to go backwards and change
things we've already done being status quo it's just not fair. And as it turns out it's
not legal in most instances and we can debate until the cows come home about what
you can and cannot do on Ag land but if we were in Maui they're doing these
permits right now. We've already said no new ones but for those of you that
ordered your economic life and your wellbeing and your life whether you're rich or
poor, around what was the status quo, it's not fair for us to change that this bill is
an attempt to see the law correctly applied to give people the opportunity to do the
most democratic of things-have their day in court, in this instance it happens to be
at the Planning Commission. This bill does not legalize TVRs on Ag, in fact it
doesn't change the bill that said you can't build any new ones. We finally did it
after eight (8) years. This bill is about fairness, it's not over because people will
decide if they'll apply and the same characters will come down to the Planning
Commission and make the same overheated rhetoric and you know unfortunately
that body will have to decide and this body hasn't given them clear guidance. But
they're not going to be getting permits for people that try to start a TVR, yesterday
or in 2009, right? Because we finally gave guidance on that but on these other big
issues that are protecting Ag land, Ag subdivisions in particular, the CPR law that
is so complex and convoluted, we still have a lot of work to do so needless to say I'm
going to vote for this bill today, I hope that we prevail, I know it's not the end of it
but I do that with a clear conscience and with fulfilling my ethics and my sense that
my responsibility is to do the best that I can with a heart and mind that God gave
me to make the best decisions for all the citizens of Kauai and thank you for letting
me make a speech.
Chair Asing: Thank you. Councilmember Chang.
Mr. Chang: Thank you very much Council Chair. First of all I
want to thank Council Chair Asing for the presentation and I also want to thank
him for the shots of the homes and of the large what many people refer to as hotels.
I was going to give a presentation but I'm not. The presentation as many of you
folks remember I talked about the fact that years ago I had a very enlightening
experience as I flew over agriculture lands and to just reminisce and my memories
about a month ago I went back up and I got an aerial view with a videographer and
if you can understand videographer, a videographer is looking like this and only
looking like this, whereas we are looking like this... and if any of you folks saw
what I saw that was up there, I'm not doing the presentation because some may be
legal, some may be illegal but I went up with the videographer obviously a pilot and
I brought up a local boy just to show him for the first time ever, Kauai boy, to see
what it looks like aerial-wise. I saw still photos of homes and we looked at different
places from the air. Well this guy happens to be in the contracting business, he
happens to be a painter. I painted that house, I painted that house, wow look at the
extension on that house... wow that house never used to have a pool, wow look at
that adjacent property next to there. There were round houses that got rounder,
like another layer around the houses... so I think the Council Chair asked an
excellent question... do these homes have a chance of being permitted and lawful or
legal? And these are mega homes but they are still homes that may not be ten
(10) bedrooms or six (6) bedrooms but there are those that are four (4) bedrooms,
three (3) bedrooms, two (2) bedrooms but believe me, when you fly over places with
tennis courts, big huge swimming pools I mean kidded that the most beautiful
unseen par three (3) on the island of Kauai believe me there's one right on the
ocean, into the wind, so that's a beautiful hole that nobody gets to see that hole but
you know this discussion has gone on a long time. People say you know perhaps it
could have been rectified years ago, maybe I remember we had a conversation on
the floor a few weeks ago when we had a chance to talk with Barbara Robeson and
COUNCIL MEETING • - 63 - • July 28, 2010
she actually estimated if I'm correct that had this been rectified years ago; maybe
eighty percent (80%) of the inventory would not be here. Now we've talked to a lot
of people here, one (1) of our speaker talked about I don't sense the aloha spirit, I
don't feel the aloha spirit... but I think there's very good reason why in many cases
we don't feel the aloha. I'll give you a couple of examples. I got one of our testifiers
over here that's been a resident for over thirty (30) years, she had great, great
friends on this island of 'Kaua`i. They were friends and nowadays, they don't talk
story. And then this speaker because she takes the stands gets pounded verbally in
the paper, on blogs, you know we get other people that you know like you want to
live the dream, you want to come here, you want to build a home, I need the TVR, to
support the home and on the same token too, the local people are going wait a
minute we just want to be able to afford our rent. We just want to make it every
day and they're not relying on any other income and you know people are going to
say, you know if you can't afford the TVR, don't buy the TVR, or if you can't afford
the house, don't buy the house to use the rent to pay for your mortgage when you're
not living here fulltime. So when you talk a little bit about the aloha, I mean I gave
an example today that personally hurt me that you know a friend of mine would
come to my house and talk story and I don't even know when you leave at the
middle of the night, take care drive carefully, see you later and end the conversation
and then I become somewhat a subject to recuse myself or try to defer you know,
that is where there's a lot of confusion. Randy Ramos over here you know he gave a
compelling testimony because that was twenty (20) years of having his lo`i, having
his land, having his water, I mean so you got to realize that this affects a lot of
people. And many of you know that the local people come up to us... I work three
(3) jobs, I work four (4) jobs, I cannot talk in front of the people, I don't know how to
write, I'm afraid you know. We have to act as their attorneys and if we're acting as
their attorneys. We have to assess everything, make a determination and we all
solemnly swear to support and defend the Constitution of the United States, State
of Hawaii, Charter of the County of Kauai, and faithfully discharge our duties of
being members of the Kauai County Council to the best of our abilities. So today
that maybe a vote that's going to happen and some of your are going to get pleased,
others will not get pleased but I'm glad we're here to make a decision because I
guess I may as well say being a subject of a blog for two (2) days in a row... as I was
huffing and puffing, I kind of compared that to BP, you know there's all this stuff
that's happening, you've got all these masterminds trying to put a seal on this and
nobody can figure how to do it. Then all of a sudden on March 7, 2008 we finally
put the cap on and now we got to get there and we got to fix the problems that are
out there from the shorelines to the mountains, from mauka to makai now we got to
get there and we do need to have the people justifiably be able to apply. I believe
that's the right thing to do and I am not going to say I'm going to reluctantly
support it but I am going to support this bill, to move further and get this county
going on the right foot because I believe that we're doing the right thing to move
forward and ho`oponopono for the benefit of all the residents of the island of Kauai.
Whether it's right or wrong, we need to go forward and we need to do this together.
Thank you.
Chair Asing: Thank you. Councilmember Kawakami.
Mr. Kawakami: Thank you Mr. Chair. And you know when I draw
reference to say that the problem is with the politicians I mean it in saying candidly
that I think often times we take the approach of trying to craft solutions without
first identifying the problem and when you look at this issue in every which way
that it's presented, we become distracted as to what the underlying problem really
is and for me the underlying problem really is that Ag is struggling to survive.
First and foremost we're not talking Ag of the 80s or the 70s or the 60s or the 50s or
the 40s... we're talking about Ag in the era of globalization where we are now
competing with third (3rd) world countries with no labor laws and how do you
COUNCIL MEETING • - 64 - • July 28, 2010
successfully compete with that... just racked up against you from the very start.
And so what this does and what I don't agree with, you know I agree with a lot of
the points and I disagree with a lot of the points on both sides of the fence but what
I disagree with is that for many farmers that are really farming, this closes the door
on them and when we are deliberating farm worker housing and while I sit on
KDBs food and Ag Committee we try to deliberate and find out ways that we can
give farmers tools to succeed so that first and foremost we can preserve our rural
character which is what the General Plan to me tries to accomplish, to preserve our
rural character. So how do we give tools to our farmers? And also of farmers have
agreed and said that you know, it would be a great tool to be able to subsidize my
farming operation with a vacation rental... BC you got to go to the bathroom?
BC: No I got to change the tape.
Mr. Kawakami: You got about five (5) minutes?
Chair Asing: The tape, the tape... he got to change the tape.
Mr. Kawakami: You want to change the tape?
BC: Yeah I have to.
Mr. Kawakami: Okay change the tape then.
Chair Asing: We'll take a short break the tape needs to be
changed.
There being no objections, the Council recessed at 5:16 p.m.
The Council reconvened at 5:25 p.m., and proceeded as follows:
Chair Asing: The meeting is now called back to order. With that
Councilmembers, we have a motion on the floor to approve, is there any further
discussion?
Mr. Kawakami: Yes Mr. Chair, I was in the middle of...
Chair Asing: Go ahead Councilmember Kawakami.
Mr. Kawakami: Thank you Mr. Chair and my apologies we had to
take a tape change break so... but what I was trying to get to, we try to figure out
ways to give our farmers tools that they need in order to survive against all odds
because Hawaii as any businessman knows is one of the most unfriendly States in
the Nation to conduct business. As a manufacturing State we're one of the poorest,
we're importing more than we're exporting. And so we try to give these farmers the
tools and that is the underlying problem is that Ag is surviving in my opinion by a
thread at this point. We try to contemplate how do we attract the next generation
of farmers when they can barely make a living. And so how does these farmers
survive and we try to find ways to help subsidize what their operation is. And I've
always felt that for a farmer this would be a tool and for many farmers agree with
me, there are many farmers that agree that this would be a great tool to help
subsidize their operation and I've always felt that the appropriate way to do it is to
bring a proposal to our State Board which is HSAC and have them adopt it as one of
their pieces in the Legislative Package and allow us to lobby for it and it's a simple
thing we'd be asking for. We'd be just asking for them to be very crystal clear by
adding the language to 205 that would create this as a permissible use. And from
that they could give us the homerule authority to create the ordinance so that we
COUNCIL MEETING • - 65 - • July 28, 2010
could set the parameters up to help stop the abuse and to help those that we intend
to help and I've always felt that what this does is it limits the opportunity for a lot
of legitimate farmers. As far as pictures of the beautiful homes, I have no problem
with those, in fact you know one of our documents say that we have certain
unalienable rights that among them are life, liberty and the pursuit of happiness
and so a lot of people have worked hard to obtain their happiness, so there's nothing
wrong with that, nothing wrong but I felt that there's been a problem with the
whole process in general. I feel that the whole way that we would approach the
vacation rental issue has been flawed because what it does is it eliminate the
opportunity for many of those who may have interpreted the farm dwelling
agreement that they signed in the first place and didn't choose to operate because
it's pretty clear in your farm dwelling agreement that it's to provide income,
provides income to the family occupying the dwelling and they go on and define
what family is. So I just feel that I can support it, it's the same arguments I've
always made but it's not to say that it's wrong, I think that it's a potential tool for
farmers and whichever which way it goes, I would still encourage the
Councilmembers as the President of HSAC to send something up to deal with this
in what I feel is the correct manner and not just a patch and that we identify that
the overall problem is that Ag is struggling to survive and so we need to .provide
tools, thank you.
Chair Asing: Thank you. Any further discussion?
Councilmember Kawahara.
Ms. Kawahara: Thank you. This has been part o£.. I know all of
our lives for about a year and a half and definitely a part of my life everyday and
every night for about a year and a half. What I owe to you and what I owe to the
constituents of this county is the reason why I'm going to support this bill and vote
for it. Today we are not approving any TVR,s on Ag land, I think that's become very,
very clear. I don't think there's ever going to be another headlines that's going to
say that ever, such a big error. It was said that we are not going to do this and that
was two (2) years ago, there are no more and a stand was made, there are no more
in 2008. The question is what are we supposed to do with those prior to 2008? I
think different people have different reactions to the beach houses, the pool houses,
huge private estates, section homeowners... I think those are all issues that bring
up big emotions... a lot of emotions in everybody. Randy Rego, I think was excellent
testimony in how there is that sensitivity. In congruency between what's
happening on the island there's such a high end on this side and then there's other
people that are working hand-foot, hand-mouth... trying to make it every day, every
day two (2), three (3) jobs... I struggled with this because most of the time I'm right
there with Mr. Rego. I'm also right there with Mr. Manu who said he was here
earlier who said what about all the people that didn't do TVR,s on Ag land. Right
now I think there's a general agreement that there's a collective failure on the part
of the State and the County to enforce one of the strong... one of the main
protections of our Ag land which is 205. I can... I am happy to say and to tell you
that I feel I've done my homework. I know what the Ag opinion was, I know what
the difference is when you apply to the LUC. and when you apply to the Planning
Commission. I've been briefed on Hokulia, I've been briefed on the Waikiki Market
Place issue, I've been briefed on what is due process, what is property takings...
again this has been taken a year and a half and the only thing I can see is that we
have said no and I have not as the Attorney General have seen no indication, where
is it... that there is a justification for TVR,s on Ag land. I don't think anybody here
has ever said that they seen any reason or justification on this table for having
TVR,s on Ag land but what we are doing is saying you know what if you really think
you can justify being on Ag land, you know what you're going to do... the process is
you go to the Planning Commission, you're over fifteen (15) acres you go to LUC, all
these people here below fifteen (15) acres you go to the Planning Commission and
COUNCIL MEETING ~ - 66 - ~ July 28, 2010
that's the process, that's what's been pounded out in this bill. You're going to do a
process, you're going to prove to the State law, the State law that we've all been
dying to enforce, dying to follow... 205 you are going to see how you fit in 205 and
the Department and the persons that are assigned to do that judgment are the
Planning Commission, they are given that authority by the State to the County
specifically to address this kind of permit whether or not you're going to get it or
not... so none of these people are getting a permit, they're going to have to fight for
the permit. And I would like to tell the Planning Commission to say, to tell them
that I would like to see them take the most rigorous possible look at every single
one of these people coming up for TVR, on Ag land and I can tell you that there are
people that are ready to defend and say yeah I'm good and this is why. And then I
can tell you people they ain't going to bother because they can't and that's what a
fair process is, that is what due process is. You get to go in front of the deciding
fact... the deciding body that has been authorized to make those decisions and say I
am here, this is my argument, what do you think. So I am going to vote for this
because that process has been pounded out here. We have failed as a State and the
County to protect our Ag lands, I agree with everybody here that has said that our
Ag lands are in danger and what we have done here in 2008, we said forget it, you
know what, our Ag lands are too important and you know what, we're going to start
to scrutinize it, we're going to look... are you really doing Ag, are you really doing
Ag? Again, and I have every indication and it is their absolute duty, the County
Attorney to defend the Planning Commission in any decision, if they deny any
permit, our County Attorneys are going to fight it to the end. But in the process
when you get there and they get the facts on record when they go to the Planning
Commission, they have the tools to fight it. Not this random thing that happens at
Planning Department, not the old bill that says this, this, and this and this... you
know what 205 that's the golden rule, 205 you better prove you can follow it. Better
prove that you show, you can show that you're doing it. And I'm, and I have full
faith that the County Attorney is going to... either way which ever this way goes,
they are here to fight for the County, to protect the county and if the Planning
Commission and I hope they do and I would like to advise them to do, to look
vigorously and very strictly at every single one that comes through. Because that is
what's fair and I think that is what some of what these people are asking is just for
that... give us that chance because that's the due process and we'll take what we
get. And if they don't take what they get, you know what our Attorneys will fight to
the end for us. Thank you.
Chair Asing: Thank you. Any further discussion?
Councilmember Furfaro.
Mr. Furfaro: Thank you Mr. Chair. And you know we or at least
through my process have been trying to come to some conclusion on this piece now
for ten (10) years, if you recall I served on the Citizens Advisory Board for the
General Plan and you know in that presentation less than 3/10 on one percent of the
land on Kauai is actually rural designation. Three percent (3%) is urban, forty-nine
point eight percent (49.8%) is conservation and forty-six point eight percent (46.8%)
is agriculture and we need to get to a point that we understand that there's not a
catchall category on agriculture. There's a category there and that was the mission
for us to regulate transient vacation rentals, that was extremely important and Ag
land wasn't a catchall. The mission in the General Plan was to acknowledge the
industry that we had but at the same time, control no new growth I think that's
something that this bill also does. You know I have reservations on this bill
because I don't like its relationship to you know how Maui does it... Maui is Maui...
Kauai is Kauai and so I have some reservations there but we also have an
opportunity to manage attrition as we have people apply for special use permits and
I'm a little weary of the challenges and the uncertainties in the laws that I've been
reading but this certainly does draw a line in the sand, gives people a process to
COUNCIL MEETING • - 67 - • July 28, 2010
apply, but also helps us manage the attrition going forward without creating new
TVRs, and so I see those as the benefits of supporting this bill and you know ten
(10) years is a long process for this... I also was on the Advisory Committee with
JoAnn but you know I was challenged because my thirty-seven (37) year
background from what I am retired is, is I'm a hotelier and perhaps people thought
they couldn't get a fair evaluation because I was pro-hotel, pro-resort... well that's
where I made my livelihood and that's what I understand probably best but the
point here is that we also need to consider and I just... if the Planning Commission
comes to us and needs some assistance like a hearings officer, someone to guide
them through this process, then we should .make that that note but in supporting
this bill, I certainly take the position that we have a stop light and we have no new
TVRs that were not in existence prior to March 7; 2008 and we may consider the
workload that will play out in the Planning Department and any new staffing that
they might want to have. Mr. Chair, I want to personally want to thank you for
your presentation and I also hope that you understand my reason for reviewing the
rules but I think I rely on a lot on your thirty (30) years of history, I only have eight
(8) years... I want to thank you for your presentation.
Chair Asing: Councilmember Kaneshiro.
Mr. Kaneshiro: Thank you Mr. Chair and thank you... all of you for
being here today. I know this has been an issue for many years and even
Mr. Furfaro Vice Chair talked about ten (10) years but I can tell you it's been twelve
(12) years for me, I was the Planning Chair of the Planning Committee when the
General Plan came before the full Council. So I'm very familiar about that one (1)
section that we talked about, where it is a priority where Mr. Furfaro talked about
there was a priority for us to do something with the CZO to address B&Bs and
vacation rentals. Unfortunately as Mr. Kawakami has stated you know we are
probably the problems... it took us almost ten (10)' years after we said this was a
priority but we used the process... we used the process of forming a Advisory
Committee, we used the process of even getting Elisabeth Kent as a mediator, we've
done many processes to be able to reach where we are today. For me you know
unfortunately as a farmer, as a rancher, three (3)... third (3rd) generation rancher
you know someone that recently purchased land... three hundred (300) acres of land
to farm, unfortunately for me approving this bill today will make it much harder for
me to survive in my way of farming and enable to pay for the land that I purchased.
Remember this people, the land was not free... it wasn't given to me... it was my
desire to farm, it was my desire to keep this in our operation for generations to
come. We talked about the great American dream as what Mr. Kawakami has
stated, the great American dream is exactly what Mr. Asing put out there, a nice
big house like that... or with three hundred (300) acres, who do I really affect on my
Ag land. With three hundred (300) acres, I can get a nice house like this that could
bring six, seven thousand dollars income to me a day... you know how much fence
line I can fence with six, seven thousand dollars a day? I can fence one thousand
feet of agriculture land every single day with that kind of money. I can also
purchase or lease more land to be able to do that. So unfortunately for me, here I
am sitting here you know supporting a bill that would curtail all of that for me as I
leave as a Councilmember. The fortunate thing for all of you is that because that's
not what's on the table today, I don't have to recuse myself because people have said
now you're in direct conflict of what you're trying to do to farm. But you know this
is a situation we face every single day. And my whole concept as being a farmer
and coming from generations of farming is leave the farmers alone.... don't go
enacting new laws, trying to change laws, trying to do laws... look Legislature
passed this in 2006 which they amended 205-2(d) with Act 250 and agriculture
tourism and thinking that they're helping agriculture when actually they're going
reverse of helping agriculture, now they said no overnight accommodations and
that's why we're here today. That's the debate issue, previous to that all we had to
COUNCIL MEETING • - 68 - ~ July 28, 2010
do is 205 or 206 allowed us, if you look at the... 205-6 go in for special permit, go
ahead... as long as you're doing agriculture which you've seen in my amendment
that says that you do specific agriculture... no problem... go ahead. You want to
supplement your income with ten thousand dollar ($10,000) a day, at least I can pay
ten thousand dollar ($10,000) in labor and put ten thousand dollar ($10,000) worth
of fence up as I stated before but you know Mr. Kawakami made a very good point
that government cannot and try to stand in the way of the farmers when... if you
even think about it how many of the Legislatures actually farm, how many of the
Legislatures are actually involved with agriculture? And yet they're making all the
laws. So you know and... typical example with a person like me, I want to help, I
want to make laws because I'm in agriculture but I got to recuse myself because I'm
in conflict so you know it's really a no-win situation but at the same time I want to
say that... to support the bill is supportive of the idea of what we talked about the
Constitutional Right of due process... 464 allows that, 205-6 through a special
permit process allows this to take place... so that's what we're doing today. We're
basically passing a bill to allow these people to go ahead and do that. Now who
knows if maybe some of them will get it, some of them won't. By meeting the
requirements some of them may, some of them won't but for those that do Ag, I
don't have a problem, I don't have a problem if you rent a place out for ten thousand
dollars a day, I don't have a problem with any of that because I know these people
when they Ag dedicate their land, when they start farming, they are farmers by
heart and they want to try to make it work. Unfortunately for many farmers, they
don't participate in this process, they don't come out here, they leave us or other
people to make the decisions because I can tell you, they're out there busy farming
the land and really working on the land. You know we see that all the time and I
know Mr. Oyama can agree to that because you don't see much farmers out here
speaking in regards to any agricultural issues. But again I just want to thank all of
you and even the Committee members and the Council you know for such a
discussion we've had, I know it's taken about a year or so since this has been on the
floor and I just think that whatever we can do to help agriculture as Mr. Kawakami
has mentioned about where we need to go to the Legislature and you know be able
to portray that attitude to the Legislature would be benefits to the farmers and the
ranchers and as long as they're farming and ranching and trying to you know keep
the land open, I don't have a problem. So I fully support this bill.
Chair Asing: Go ahead Councilmember Chang.
Mr. Chang: Thank you Chair, I'll try to make this real brief
because I think it's really important and I just wanted to make sure that I can get
this off of my chest and this is a reference to you know aloha and the aloha spirit.
One of the things that I did not like about the bill and I will say and a lot of the
things that did not like about the TVR,s was the fact that I had inquired with many
of the people that I've got to meet about how many of these TVRs are for sale and
many of them are for sale. And when you look at the people that have homes for
sale you could say maybe the economy is bad, I got to sell because I can't make it
meet, I'm out of here. Or maybe there's a chance that the bill is going to fail, now is
the time... I got my money, I made what I want, I'm out of here. Then there's
others that may say that whoa once we get the approval, our property is now worth
forty percent (40%) more, so that's the difficult part that I had about the fact that
you know when a lot of people say oh I have aloha, I love the island of Kauai, then I
talk to the employees, have you ever met your owner... no I don't know who my
owner is because a lot of the people of every place is property managed right now
and the property management you know you doing to single family home, somebody
sells a house... oh by the way why don't you TVR, it, I'll be your landlord or I'll be
your realtor or you know I'll help you out with housecleaning and everything else
and that's the part I wanted to also make, on the employment end you know if you
are denied or if somebody out there that you know is denied, please let your
COUNCIL MEETING ~ - 69 - ~ July 28, 2010
employees know, because you're denied hasn't nothing to do with our decision, you
were denied because you were not approved. And so I want these employees to
realize that you know it's not us. I had an opportunity to speak to our Planning
Commission Chair and he reiterated to me that they are going to be taking a very,
very hard stand and they're going to be looking at things very, very quickly and I do
feel that I have to leave this... we had a gentleman that testified for several times
and he tried to go through the process, the process unfortunately was stalled, it
didn't work, so he came here he did a testimony and when he did a testimony and it
was televised, to and behold as soon as it was televised, citations were issued to his
neighbors that he tried to reason with. The neighbors consequently went out and
put flood lights straight in his home, two (2) flood lights right in his home... now I'm
thinking about a shearwater issue, maybe you should called the Humane Society,
maybe you should call KIUC and I said you know what... I, like you, let me go call
KIUC or let me go call the Humane Society, better yet... let me go to your house...
so what this gentleman tried to do was put like (inaudible) mats or blinds because
the bright lights was shining right in his house... so what does the neighbor do?
Called the Building Department to find out to see if it's legal for him to put shades
to block out the lights and the most astonishing thing about it to me, aloha spirit,
this gentleman has lived here and did everything correct for fourteen (14) years, he
works on Kauai and the people that are doing to him next door is a well known
respected local family. So I just want to let everybody know, this is not easy, this is
not tough but we need to get the process, and we have to let the process go because
again through that testimony there are a whole bunch of new Sheriffs in town right
now and the Sheriffs all did their oath and we can't correct what's in the past and I
apologize for everything that happened in the past but I want to leave you with this,
we are all responsible for making sure that the future is not like what the past was.
Thank you for allowing me to say that. I just needed to get that off my chest thank
you.
Chair Asing: Any further discussion?
Mr. Kawakami: It seems that I'll be in the minority so as the
minority voice I just like to end by this... that throughout this process there were a
lot of I guess assessments that our primary task was to protect the County of Kauai
from lawsuits which is in partial true, we try to do everything we can to avoid
lawsuits but I would just like to end my deliberation on this issue by saying that
this is the oath that we take... I do solemnly swear that I will support and defend
the Constitution of the United States, the Constitution of the State of Hawaii and
the Charter of the County of Kauai and that I will faithfully discharge my duties as
a Councilmember of the County of Kauai to the best of my ability and I feel
confident that the vote that I'll be placing today, fulfills that pledge that I gave to
the people of Kauai. Thank you.
Chair Asing: Thank you.
Mr. Furfaro: I feel equally responsible for my vote, that is also to
protect the financial outcome of the County of Kauai so I just want to clarify that.
Chair Asing: Okay great... well let me just end by saying this, by
saying what I said in my initial presentation that I made today and I will end it
that way... I want my colleagues on the Council, the County Attorneys, the
Administration and the public to know that I respect each and everyone for their
research, analysis, views and final opinions. And I will end with that, I have made
my presentation, feel comfortable with all the things that I've done and my reasons
for voting the way I'm voting. I gave you my reasons, I feel comfortable with it and
I respect everyone's opinions, there will be difference of opinions all the time and I
respect that so with that...
COUNCIL MEETING • - 70 - ~ July 28, 2010
Mr. Furfaro:
Chair Asing:
Thank you Mr. Chair.
Roll call please.
The motion to adopt Bill No. 2364, Draft 1, as amended, on second and final
reading, and that it be transmitted to the Mayor for his approval was then put, and
carried by the following vote:
FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro,
Kawahara TOTAL - 5,
AGAINST ADOPTION: Kawakami, Asing TOTAL - 2,
EXCUSED & NOT VOTING: None TOTAL - 0.
Mr. Nakamura: Five (5) ayes, two (2) noes Mr. Chair.
Chair Asing: Thank you. Motion carried. Thank you very much
everybody. We'll take a short recess.
Mr. Furfaro: Do we have a dinner...
Chair Asing: Oh I think we better take a dinner break.
There being no objections, the Council recessed at 6:00 p.m.
The Council reconvened at 7:19 p.m., and proceeded as follows:
Chair Asing: This meeting is now called to order, Mr. Clerk next
item please.
Mr. Nakamura: Council Chair we're on bills for second reading.
Next bill for seconded reading is Bill No. 2365.
Bill No. 2365 - A BILL FOR AN ORDINANCE AMENDING
SECTION 21-1.3, SECTION 21-2.1, SECTION 21-2.2, SECTION 21-3.2,
SECTION 21-3.3, SECTION 21-7.3, AND SECTION 21-9.1 OF THE KAUAI
COUNTY CODE 1987, RELATING TO INTEGRATED SOLID WASTE
MANAGEMENT
Mr. Bynum: Move to approve.
Mr. Kaneshiro: Second.
Chair Asing: Any discussion? Is there anyone in the audience
who wants to speak on this item? If not, any discussion again? If not, with that roll
call please?
The motion to adopt Bill No. 2365, on second and final reading, and that it be
transmitted to the Mayor for his approval was then put, and carried by the
following vote:
FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro,
Kawahara, Kawakami, Asing TOTAL - 7,
AGAINST ADOPTION: None TOTAL - 0,
EXCUSED & NOT VOTING: None TOTAL - 0.
Mr. Nakamura: Seven (7) ayes Mr. Chair.
COUNCIL MEETING ~ - 71 - ~ July 28, 2010
Chair Asing:
Mr. Nakamura
Draft 3.
Thank you, motion carried. Next item please?
The next bill is for second reading is Bill No. 2318,
Bill No. 2318, Draft 3 - A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO THE
COMPREHENSIVE ZONING ORDINANCE (Farm Worker Housing)
Chair Asing: Thank you. What I'd like to do is why don't we
take the amendment first, clear the amendment, approve the amendment and then
we'll take the public testimony.
Mr. Kawakami: Move to approve.
Mr. Nakamura: Council Chair?
Chair Asing: Can I have a second.
Mr. Nakamura: Oh. I'm sorry Council Chair for the record
Councilmember Kaneshiro has recused himself from this matter.
There being no objections, Mr. Kaneshiro was noted as recused from agenda item
Bill No. 2318, Draft 3.
Chair Asing: Yes Councilmember Kaneshiro is excused. With
that we have a motion and a second and then can we...
Mr. Furfaro: Do we have to make a motion...
Chair Asing: To amend...
Mr. Furfaro: An amendment as circulated.
Chair Asing: As circulated.
Mr. Furfaro: (mic not on)
Mr. Nakamura: Council Chair, I'm sorry Council Chair... I think
we needed a main motion on the bill...
Mr. Furfaro: We did.
Chair Asing: We did.
Mr. Furfaro: Mr. Kawakami made the motion.
Mr. Nakamura: My apologies I missed it... so Councilmember
Kawakami on the main motion and the second was yourself?
Mr. Furfaro: I seconded yes.
Mr. Kawakami moved for adoption of the bill on second and final reading, and that
it be transmitted to the Mayor for his approval, seconded by Mr. Furfaro.
COUNCIL MEETING ~ - 72 - ~ July 28, 2010
Mr. Furfaro moved to amend the bill as shown in the Floor Amendment attached
hereto as Attachment 3, seconded by Mr. Kawakami.
Chair Asing: Okay now we have a motion and a second on the
amendment. And the amendment is being passed around now and you can give
members of the public the amendment. Is there any discussion on the
amendment... would you like to...
Mr. Furfaro: Yes I'll give some highlights... the main purpose
over here of this amendment is just to really identify people who do not have
density for say on an active farm lot right now that number one (1) recognizes
should they get the density through their application, it is their primary house that
they are getting for the purposes of agricultural activity as well as the next part is...
as we may or may not all know when the important ag land bill is passed on
important ag lands, subsequent jurisdiction over those pieces will actually go to the
IAL and they may make a decision about giving farm worker housing density
without actually needing to apply to the County of Kauai. And because they would
believe that their final scope of important ag lands would supersede any of our
zoning codes and I don't necessarily with this amendment that we are really doing
anything that really relates to the consequences of lands that don't become
important ag lands that people still have a process to apply at .our Planning
Commission level but it also recognizes that the purpose of the farm worker housing
will be the farmers... farm owner's exclusive residence if they should get a farm
worker unit on a parcel that does not carry current density. That's pretty...
Chair Asing: Thank you. Councilmembers any questions? If
not...
Mr. Furfaro: Maybe we should open to the public if they got a
circulation of this...
Chair Asing: Okay. Well, do all of you have a copy of the
amendment? Is there anyone in the audience who wants to make any comment as
it relates to the amendment?
Mr. Furfaro: Please come right up JoAnn.
There being no objections, the rules were suspended.
JOANN A. YUKIMURA: Good evening Chair Asing, members of the Council.
JoAnn Yukimura for the record. As I see it, and I haven't had much time to look at
this, there's two changes recommended, one on the first page and one on the second.
It's the first one that I want to address. If I misunderstand the intention or the
substance of this, please correct me, but I'm understanding this to say that the farm
worker housing bill will not have any effect for any lands that are designated
important ag lands.
Mr. Furfaro: JoAnn, I kind of went over that briefly, and it is my
understanding, and I'll call one of the attorneys to help, that when the State
determines the important ag lands that their new policy of housing will supersede
what we have. And that's what I was trying to get at, because we don't know which
lands they will indentify as being the important ag lands. So you know, that was
the intent here of the first part. When it's being designated as important ag land,
you know, under Chapter 205, the IAL group, the State group, may feel that...when
a presentation is made to them about the need for farm worker, they supersede
what we might have in place, but at the same time, we would want to have what is
in place identified now so that bona fide farmers can move forward. But you know,
COUNCIL MEETING • - 73 - • July 28, 2010
what happens if certain lands don't get classified important ag land, but yet they're
producing agricultural products. They will then still have an opportunity to be in
front of the planning commission with their application. You know, it's a kind of an
unknown right now. I mean for me it's absolutely not an absolute necessity; I just
wanted to put it in there so...
Ms. Yukimura: Okay. My understanding of agricultural law or
laws regarding agriculture lands is it's a dual tiered system, and so you have the
State laws and then you have the county laws, which are usually allowed to be
stricter than State law. in the case where it's a regulation. And what concerns me is
that the State if often out of touch with the practical needs of farmers and farming
issues, and often, in my opinion, much more vulnerable to special interests. But if
you look at the Section 205-45.5, which talks important ag lands and farm dwellings
and employee housing, there's some real gaps in this bi11...I mean in this...the
provisions of 205, because you know, contract workers were really an important
part and they're not included, and some of the safeguards that we've included in our
bill are not included too in terms of what a real farm is. And so... and we've also
said that... all along that this work that we're doing on farm worker housing would
be good practice and would give us some experience in preparation for important ag
lands, because if we think this is going to be strict, important ag lands will raise the
whole issue of farm dwelling units that...I mean arguably on important ag lands it
really has to be a farm dwelling related to a farm, which goes to what is a farm and
all of this issues. And we're getting practice dealing with this now. So what I, you
know, it is poss... and I don't know what the...I mean who is the State? Is it the
department of ag, because...
Mr. Furfaro: It's department of ag.
Ms. Yukimura: Because when I call the department of ag and ask
them, because on part of 205-45.5, in the law right now it says, the plans for farm
dwellings and employee housing units shall be supported by agricultural plans that
are approved by the department of agriculture. So I called them and I said, what is
your procedure for approving plans?
Mr. Furfaro: Still unknown.
Ms. Yukimura: They have nothing.
Mr. Furfaro: Yes.
Ms. Yukimura: Do you have rules? We don't have any money or
time to develop rules. You know, and their thought was, oh we'll work with the
county planning agencies, which is what we're talking about how this thing's going
to work at the county level.
Mr. Furfaro: Absolutely. I understand what you're saying-we
want a template of a plan in place so that they may adopt it, in a sense.
Ms. Yukimura: Right.
Mr. Furfaro: I understand that you're saying. But you know,
when I look at the bill, it's very clear, even on parcels of 900 acres, in IAL they're
saying as much as 50 acres of that can now become farm worker housing under
their control and becomes residential and kind of bypass our fees.
Ms. Yukimura: That could be like another town.
COUNCIL MEETING ~ - 74 - • July 28, 2010
Mr. Furfaro: Yes.
Ms. Yukimura: And which is why I think we have valuable input to
give to the State process. And in the earlier conversations about how the
lawmakers have been at fault, it's not only the lawmakers, it's really the planning
department director and all that, because I want you to know that when I first got
into politics, nothing could pass at the State level unless the four planning directors
of the counties, Ray Suefuji, Brian Nishimoto, Ralph Ishikawa?...I forget the Maui
planning director. They... and actually it was more the three neighbor islands
planning departments. Unless they approved, nothing could get through at the
State level. That's how influential and how proactive our planning departments
were. They were there day and night during the legislature to say this will not
work with our planning process, or this is what we need, or whatever. And
we've...in the last 15, 20 years, we've just been...we just .rolled over to that.
So coming back to this particular issue, I mean we've done a lot of work,
we've got a lot of input from grassroot level, from farmers. And so I'm just...I don't
want to just acquiesce to this idea that it's going to be a State determined process,
because if you look at the past, it hasn't been; it's been two-tiered, and we should
participate in a process.. So one of the thoughts is to leave it out for now and to say
we want to work with you, how are we going to do this, what are your ideas, and
would you consider ours.
Mr. Furfaro: That idea has crossed my mind, but again, we have
had testimony from the State organizations like LURF that have encouraged this.
But it's, for me, it's not a deal breaker.
Ms. Yukimura: Well you know, what doesn't...what's hard is
LURF's not here; they're not here to talk to, so I don't even know what they're
thinking, and that's part of the difficulty.
Mr. Furfaro: I'll share with you what they wrote to us; their
concerns were. But we did get correspondence from them, and...
Ms. Yukimura: Well, that would be helpful to be able to respond to
it. Maybe it's totally logical and correct, but I have a lot of questions.
Mr. Furfaro: Let me recognize Mr. Bynum; he has a question
for you.
Mr. Bynum: Actually, I'll save and discuss it when we're back in
order. Thank you for your testimony.
Mr. Furfaro: Okay, very good.
Ms. Yukimura: Okay, you're welcome.
Mr. Furfaro: Thank you JoAnn:
Ms. Yukimura: Thank you.
Council Chair Asing: Yeah, my comment to the conversation is that no
matter what we put down, it's not going to matter, because the control is still going
to be on the State level. That's the way the Leg has set it up. It is set up that way.
They have total control. So with that, thank you. You want to talk about the
amendment? Okay, come up.
COUNCIL MEETING • - 75 - • July 28, 2010
LINDA NEUMAN: Hi my name is Linda Neuman, and I am reading
this for the first time, and under section d, number 3, the subject property's
maximum residential densities as established in section 8-7.5 have been permitted
and constructed. If the applicant can demonstrate that the subject property is a
unit in a condominium property regime and that the maximum allowable
residential density for the applicant's CPR unit has been permitted and
constructed, the planning commission may waive the requirements of the provision.
Could you explain that a little bit, because I'm not understanding that particular...
Council Chair Asing: Go ahead Mr. Bynum.
Mr. Bynum: The way I read it, Linda, is if you're on a CPR that
has no density, then they can waive this requirement so you... if you qualify under
the bill, could get the farm worker housing.
Ms. Neuman: They all have to be built, though. Is that correct?
Mr. Bynum: Only the ones on that particular CPR unit. So if
the CPR unit has one density, you got to build that first. If it has zero density, they
can waive it for that CPR and allow them if they meet the provisions of the farm
worker housing bill. I think that...I mean this was an attempt to address what I
think is your concern.
Ms. Neuman: Well, just...not all CPRs require people to build.
When they have the density, they aren't building. And so if they aren't built and
they're not permitted...
Mr. Bynum: If they're not built 'on that CPR, they couldn't do
farm worker housing until they use their density.
Ms. Neuman: Oh, they couldn't, but other people...
Mr. Bynum: They couldn't... But other CPRs that had no
density, this would allow, if you meet the criteria, to build the farm worker housing.
Ms. Neuman: Thank you.
Mr. Furfaro: Let me add on to that. And you had to be the
resident of that farm worker unit.
Mr. Bynum: Right.
Ms. Neuman: Thank you very much.
Mr. Furfaro: That's the other important part to this.
Ms. Neuman: Appreciate that.
Council Chair Asing: Thank you. Is there anyone else?
Mr. Nakamura: Council Chair, we have registered speakers, Anne
Punohu, followed by Louisa Wooten.
Council Chair Asing: Oh, go ahead.
COUNCIL MEETING • - 76 - • July 28, 2010
ANNE PUNOHU: Aloha. Anne Punohu for the record. Am I allowed
to also comment on the bill itself...in total, or am I only allowed to comment on this
amendment?
Council Chair Asing: We're going to just take the amendment first.
Ms. Punohu: Amendment first, okay. I think that the CPR issue
is good to be in there. The important ag lands issue, I just question what I would
say in totality with this bill is that every farm worker that is living on property
right now that is not being adequately housed has the right to be adequately housed
under the federal law, and that the federal law has a very good framework to do this
entire process, and I think I brought that to your attention several times. So I am
unsure how adding this IAL into here will help or not... or hurt or not hurt the
situation. I wouldn't be in favor of anything that would make the process any more
complicated or convoluted at this time. I think the urgency is to get this housing for
the farm workers as soon as possible and get something passed that will give some
relief to the farm workers themselves. So I have no objections to the CPR thing.
I'm still questioning and not quite understanding the AIL(sic)...the important ag
land portion of it. So maybe I have a question about that...maybe just a little bit
more clarification possibly?
Council Chair Asing: Okay, Councilmember Bynum.
Mr. Bynum: Because we're on this, I think that the Chair's
correct that the way the law's written now, if it's designated important ag, and the
department of agriculture can, you know, has the power regardless of what we put
in here to determine it. But what JoAnn said is also true that they haven't done a
great job of giving us guidance in the past, so my own personal preference would be
that this not be in there, because as Councilmember Furfaro has said I think quite
eloquently, we're hoping the State will see the effort we put in and use this as
guidance. Now having said that, you know, it may... we may want the State to be
maybe even more restrictive on IAL, right? I don't know, but the Chair I think is
correct-they're going to do what they want. But if we .leave it in there, I think
there's a good chance the State will say, oh Kauai is giving us guidance, we're not
going to get any less restrictive than that. So my own preference, it would be in
there, but I'm going to support this bill whether it's in or not, right. So you know, I
would... and I know when we call it back to order and talk with each other I'll say,
gee can we do this amendment without that, because I think Councilmember
Furfaro's made a really good point that... and the State, because they don't do it on
their own, will probably...I think he's correct, that we will have made our desires
known and that they may follow that as a template.
Ms. Punohu: Okay, I think...just my question is, again, is why is
not only the State, but the county looking at the federal process which is already
laid out and extremely clear?
Mr. Bynum: No, that's a separate question.
Ms. Punohu: Okay, then I'll just go sit down and wait for
discussion. I'll come later for the full bill. Thank you.
Council Chair Asing: Thank you. Do we have another speaker?
Mr. Nakamura: Next speaker is Louisa Wooten.
LOUISA WOOTEN: Oh hi, it's Louisa Wooten for the record, and what I
was going to say was I signed up not necessarily to speak on the amendment, but I
COUNCIL MEETING • - 77 - • July 28, 2010
will say a couple of things. On page 2 the wording here, I read it backwards and
forwards and forwards and backwards, and to me it doesn't say anything
differently. It's just a different way to putting it on the paper, pretty much. Having
listened to the previous amendment and having people noted that, you know, we
were waiting around for a CZO so that we didn't have to pass an ag moratorium, are
we going to wait around for an important ag land study that hasn't really got any
real good directions to pass the farm worker housing bill. I don't think that's
what...that I mean I don't know that the farm worker housing bill should depend on
the unknown, you know. That's all I have to say about that, but as far as the
wording on page 2, I've read it, it's just a scrambled way of saying the same thing as
what we already had in the bill.
Council Chair Asing: Councilmember Furfaro.
Mr. Furfaro: I'm sorry if you perceive it as being soft scrambled,
but hey, they're still scrambled eggs. You just referencing the IAL, just so that we
all know, they have 20 meetings scheduled. I think they're on meeting 5. Their
process will be to review all of these areas within the planning department and with
their 21 member commission, I believe, we don't see a recommendation until
November of 2011. So you know, no, I'm not intending to have a situation where
we're waiting for IALs to catch up with us. What I am anticipating is kind of what
the Chair said. No matter what we send to them, it would be better for us to have a
template that says what we're doing than it would to find them not saying, oh
maybe we can look at exactly what Kauai is doing.
Ms. Wooten: And that's what we really felt in our working group
all along too, Jay.
Mr. Furfaro: So that is right in the passing of this. And the
other piece, just to reiterate to everyone, if somebody has a CPR that actually has a
producing farm but no density, as long as it is the owner, they can apply for this
use permit.
Ms. Wooten: Right, and it is... a little scrambled... It's saying
the same thing, but more better, more better.
Mr. Furfaro: More better.
Ms. Wooten: Okay, thank you.
Council Chair Asing: Thank you. Is there anyone else? Roy.
ROY OYAMA: Well Council Chair and Councilmembers, wow,
what a day for me, spent all that hours. But anyway, we got to pass it tonight, or
else. Well anyway, I mean I'm not too happy when we always to have more
amendments, and you just puzzling the situation even deeper and deeper. Now, as
to the IAL issues, yes, the State has more... much more power than we do, we know
that. And I don't think we should be trying to lobby a bill to help protect them,
because they can do whatever they want. Concerning department of ag, JoAnn is
right. This administration did hardly anything to protect agriculture, period. Very
disappointing. I got to be open, because I'm a true honest man, and I would say it
like it is and where it should be heard. Now I don't want the county council to be in
that frame, so please, get your ducks together and act on it property, but do not talk
all hot air and can't even serve us. You know how much of our segment of
agriculture is slipping from the department of ag, and yet this is going to be under
department of ag on IAL, and how many more? Very disappointing. So I am not
rooting for department of ag at this point. I believe our county should move
COUNCIL MEETING. - 78 - ~ July 28, 2010
whatever we can for the farmer. We got to move ahead for our farmers. You all
know. You all talk about good words of sustainability for the island. Well, that's
walk the talk, and not talk and talk. So that's where I leave it, but I just want to
make sure, we got to start walking our talk, because we're not doing enough
walking. I'm not trying to be here to lecture you, but I want to be serious about it,
because you know, the hours that we spend here, you know that, I should be back
on my farm- to...even I'm retired, my productivity is down. So what I going to do?
I'm concerned about my customers too, they waiting for my product when I'm down.
So I hope you guys know. That's the reason why you don't have much farmers.
They cannot afford the time they got to spend waiting and waiting and waiting for
the final vote. So please let's make it tonight, okay. Thank you.
Mr. Furfaro: Roy, don't leave for a second. So Mr. Chair, may I
pose...
Council Chair Asing: Go ahead.
Mr. Furfaro: You see here on page 2 where the amendment
basically is referencing the CPR lots that may have a productive farm on them and
in fact even if they are a CPR, they could apply for this farm worker housing, and
they could apply with it as long as they are farming. It goes on to say that if they
stop that activity, this is not giving them permanent density.
Mr. Oyama: Okay.
Mr. Furfaro: That's what I'm trying to clarify.
Mr. Oyama: Right. I understand. I understand...
Mr. Furfaro: That you have a bona fide farm. But I just also
wanted to point out that I think the Chairman is right. You know, when the State
comes in, it says you know, this is what it is, they're going to supersede us and we...
Mr. Oyama: Yeah, it's all blank for you.
Mr. Furfaro: But we want to say we have a plan in place.
Mr. Oyama: Yeah, you have a plan, that's why I'm saying, you
know, I don't want to depend on the department of ag much more, because we going
to be further behind.
Council Chair Asing: Councilmember Bynum.
Mr. Bynum: So just... so you'd prefer that we not have this
exemption for important ag land.
Mr. Oyama; Definitely, because I have no faith in department of
ag at this point, speaking from my level.
Mr. Bynum: If we took this out and it just said you have farm
worker housing, you have to get a use permit, the DOA might...the department of
ag might say, well you got to do this too, but hey, it says in county law you got to get
a use permit, go get a use permit. And that'd be your preference.
Mr. Oyama: Yeah.
Mr. Bynum: Right.
COUNCIL MEETING • - 79 - • July 28, 2010
Mr. Oyama: Because the reason is this: we can put it down, you
know, we can put it down, yes, you have something in place, they can see it. But
today, and when did they demonstrate that they followed a county's policy? Look it
up in history.
Mr: Bynum:
Yeah, yeah.
Mr. Oyama: Especially in ag. Act 205 is a big old blunder for us.
I have to say it honestly. I mean I'm going to be frank about it, because we cannot
be kidding around. We are working very hard, and we cannot spend time here just
to lobby to save our soul.
Mr. Bynum:
Mr. Oyama:
Council Chair Asing:
Thank you Roy.
Okay?
Councilmember Furfaro.
Mr. Furfaro: Thank you. And on page one where it says item 7
here, for farm worker housing, unless the property has been designated as
important agricultural land pursuant to 205, this is saying that people...they
don't...if they got a bona fide farm, they do not have to be identified by the
important ag land; they can still apply because they have a bona fide farm. That's
what this is here.
Mr. Oyama: Yes, this is your county control. That's okay, but
another question pops up, because I hear it a lot in my background. We have a lot
of farmers there, you know, is in question to the violations of the property, and you
know what I'm talking about. Because they are on land without no density, and
they try the best to get it and honestly do it, but nobody can be there and arguing
with them all the time. They have been going in with their permits or whatever
they have to submit, they do it, I know. Many of them tell me, but many of them,
being so busy, did not keep all of the receipts of what was sent to them. So this is
an area that I'd like to make sure that the real farmers is going to be protected.
Mr. Furfaro: And I'm trying to say in this, regardless of what
happens with important designated ag land, if you got somebody with a bona fide
producing farm, they can still apply.
Mr.Oyama: Yes, well that's what I'm saying, okay, and I
hope... make sure we understand both sides. Okay, thank you.
Council Chair Asing: Councilmember(sic) Yukimura.
Mr. Oyama: Get the vote done tonight.
Ms. Yukimura: JoAnn Yukimura for the record. I just wanted to
add one thing. Actually this amendment on page one means that if a land...a parcel
is designated important ag lands, they don't have to follow this bill. And under the .
State law, it's much looser. So if we're worried about abuse, there's more probably
of abuse on important ag lands than will be on non-important ag lands. Because
we're saying that this law won't apply to important ag lands, and this is the law
that has all the safeguards. So that's what I'm worried about. Now, this bill doesn't
cover all the larger lots, and there'll have to be some modifications, but I'm saying
that that could be done better in conversation with the State and with
COUNCIL MEETING ~ - 80 - ~ July 28, 2010
Jerry Ornellas who sits on the important ag lands committee as an aftermath
rather than right now, because otherwise, the important ag lands won't have the
protections we worked so hard to put in here.
Mr. Furfaro: Yeah, and I appreciate your comments that there
are some pretty good controls in this bill.
Council Chair Asing: Thank you. Any questions? If not, I'd like to call
the meeting back to order. Can we have further discussion on the amendment?
The meeting was called back to order, and proceeded as follows:
Ms. Kawahara: Can I have a point of information?
Council Chair Asing: Go ahead.
Ms. Kawahara: Since it seems like...is there such a thing like
dividing the question so that we can vote on the IAL part and then vote on the
other amendment?
Mr. Furfaro: Actually, when you divide the question, you
actually are asking for a vote on the question by division. So I think we can talk
about the two parts of the amendment; we can put them in two separate forms and
vote on them as two separate amendments, if that's what you'd like to do.
Ms. Kawahara: That's what I'm hoping. That's what I'm asking.
Thank you for understanding what I'm trying to ask, to have them put
up separately.
Council Chair Asing: Okay, if it is the wish of the council as a whole,
what I would ask is that withdraw the motion and the second, and then do a motion
to do two separate amendments, and then we'll vote on each amendment separately
if the members wants to. That way we'll do one, vote on it, and then we'll do the
second one and vote on that. So that's another option, and if you want to do that,
then I would suggest we withdraw the motion and the second, we'll do a new
motion, and the new motion will be that we will handle the both items separately.
So what is your choice, Councilmembers?
Mr. Furfaro: I would like to take a recess for the staff to fix the
two amendments. I do also want to say again, you know, I'm just anticipating the
future, that's what I'm doing here, and you know I'm not totally sold on this, but I
think there is the second part, which is really important, which allows people who
have activity, farming activity, with no density as long as they are the farmer that's
living in that unit. So I think dividing this piece would be appropriate.
Council Chair Asing: Okay; any further discussion? Go ahead.
Ms. Kawahara: And I do...I thank Vice Chair Furfaro for allowing
us to do that, and I want to thank him for looking ahead into the IAL, because I
know a bunch of us have gone at different times and we've been watching the
process of IAL. So to have considered it and thought to maybe put it in was I think
a good thing, and thank you for taking up (inaudible).
Mr. Kawakami: Could I make a suggestion?
Council Chair Asing: Yes, go ahead.
COUNCIL MEETING • - 81 - • July 28, 2010
Mr. Kawakami: Maybe if what I'm hearing is correct and the vice
chair is saying he's more concerned about the second section be in there, instead of
having two amendments come out, maybe what we can do is if there's an agreement
for him to just not include the first part of the amendment which deals with IAL.
You might want to just scratch that and just come with one amendment, if that's
what the wish is. "
Mr. Nakamura: Council Chair.
Council Chair Asing: Yes.
Mr. Nakamura: Peter Nakamura, County Clerk, for the record. I
think one of the ways you could do it, just because of the way the amendment is
structured, is structured to amend two different sections of the bill, is to take it ad
seriatim and just vote on the amendment for section 2, which contains the
important ag land section, and take that separately, and a vote on that separately
from the vote on section 3, which includes the next amendment. So it basically
would be taking it seriatim.
Council Chair Asing: Okay, that's another option.
Mr. Furfaro: That's another option, and...
Council Chair Asing: We can do that.
Mr. Furfaro: I would appreciate as we vote these various times
that we ask the Clerk to read that so that we're all...
Council Chair Asing: Now is it our understanding that item 7 would be
read as one amendment, and then would we be taking one and two on page 2 as the
next amendment? Am I...
Mr. Furfaro: That's how I understand the Clerk's offering.
Mr. Nakamura: Yeah, Council Chair, I think, though, just the way
the amendment is structured, section 2 contains the amendment to section 2, which
is the first section of the floor amendment, contains the important ag land piece.
Section 3 of the bill contains the other piece. So you could vote on these separately.
And what we would need is a motion from the council, an approved motion, to take
the amendment seriatim.
Council Chair Asing: Okay. So you want... do you want to do any
changes, or are we fine?
Mr. Furfaro: No, I think if we take it just like that, we go with
section 2 first; it only puts me in a delicate position, because I introduced the
amendments. I am not that attached to the section 2 piece, but I may have to
support my own amendments, just so you all understand that.
Mr. Kawakami: Absolutely.
Council Chair Asing: Okay, with that...
Mr. Nakamura: If we could get a motion, Council Chair, to take the
floor amendment in pieces, or seriatim.
Council Chair Asing: Okay.
COUNCIL MEETING • - 82 - ~ July 28, 2010
Mr. Kawakami moved to vote on the floor amendment seriatim, seconded by
Ms. Kawahara, and unanimously carried.
Council Chair Asing: Okay, that motion was to vote on each item
separately. So with that, can we have the first item please.
Mr. Nakamura: Council Chair, on the floor amendment that's been
moved and second, introduced by Vice Chair Furfaro, the first section of the vote on
the floor amendment would be to the proposed amendment to Section 2, which is an
amendment to Section 8-7.3 in the bill, which requires a use permit unless the
property has been designated as important ag land pursuant to chapter 205 of the
Hawaii Revised Statutes.
Council Chair Asing: Okay, that is on the first page. Am I correct? With
that, Councilmember Bynum.
Mr. Bynum: So understanding the...how we're doing this, my
preference as I stated is that sections...that number 7 not be part of the bill. I don't
think it's a huge issue, but I think I see some potential problems if it's in there, and
no problems if it's not. So in order to remove this, I intend to vote no, but I totally
support the other part.
Council Chair Asing: Okay, Councilmember Kawahara.
Ms. Kawahara: Yes, given the testimony we have and also I have
reservations also about that amendment in section 2, 8.73, number 7, I support the
second amendment that we're looking at, but this one I would agree that having it
out of there would probably be cleaner, but I do want to recognize that it was an
effort to acknowledge that there is an IAL process going on. I just think it'll be
cleaner and maybe a bit premature if we put it in now when we can wait till later.
Thank you.
Council Chair Asing: Thank you. Any further discussion? We're on the
amendment which is on page one.
Mr. Furfaro: Section 2, item 7.
Council Chair Asing: Yes. All those in favor say aye.
The motion to amend section 2 of the bill was then put, and failed by a vote
of 1:5 (Mr. Bynum, Mr. Chang, Ms. Kawahara, Mr. Kawakami, Chair Asing
voting no; Mr. Kaneshiro recused.)
Council Chair Asing: The motion does not carry. With that, can you read
the second item of the amendment.
Mr. Nakamura: Just for clarification, Council Chair, the motion to
approve the amendment in section 2 failed by a vote of 1:5.
Council Chair Asing: Yes.
Mr. Nakamura: So that section... the amendment contained in
section 2 of the bill will be stricken from the floor amendment. The second section
of the floor amendment that's now up for consideration is an amendment to
section 3 of the bill, and it deals with the...on page 2 of the bill, with the definition
of farm worker, and it adds...it takes out a section of that definition and adds the
COUNCIL MEETING • - 83 - • July 28, 2010
following: that the proposed farm worker housing will be the farm owner's exclusive
residence, and 2) that the affected lot has been subject to a condominium property
regime and the respective condominium property regime unit does not qualify for an
allowable permanent...for any allowable permanent density. That would be the
portion of the floor amendment that's still surviving.
Council Chair Asing: Thank you. We have a motion on the floor to
approve the second portion, which is on page two. Any discussion? All those in
favor say aye.
The motion to amend section 3 of the bill was then put, and unanimously
carried.
Council Chair Asing: Motion is carried. Thank you.
Mr. Furfaro: Thank you Mr. Clerk, as I didn't want to take on
five people the first time around.
Council Chair Asing: Now that we have the bill as amended, we have the
complete bill now. With that, I'd like to open it up to the public for public
testimony. Do we have any registered speakers? None. With that, Anne please.
There being no objections, the rules were suspended.
Ms. Punohu: Aloha, Anne Punohu. I am now representing the
Kauai fair housing law coalition in my capacity as the person who's running that
coalition. I am going to be very happy tonight to see Uncle Roy happy tonight,
because we really need to pass this bill. You know, we have people sleeping on the
ground in unsanitary conditions. This is extremely important to get these people in
decent sanitary housing. Here is an opportunity to support real farmers. I just
want to just...but I also want to throw it in, yes, I'm in support of the bill; however,
I want to also bring to the council's attention that we may have some gap housing
issues for farm workers on the island and that I have been doing due diligence and
trying to get, you know, the federal government to step in and look at building some
sort of permanent facilities in a centralized hub on the island, which I'm hoping to
see us be able to work with KEO, the farm workers bureau, and others to get that
housing also. However, I think that this is a very huge step, finally, in the right
direction for real farmers doing real agriculture with real farm workers. So I'm
hoping to see this pass tonight. Thank you.
Council Chair Asing: Thank you. Can we have the next speaker please.
Ms. Wooten: Louisa Wooten for the record, and I signed up to
speak to this part of the bill, and I'm so sorry that a1T the other farmers didn't stay
to also give input on the bill; there were so many in the room. But I also have a
little token here that I want to give to you all, and it's...I'm hoping that one of the
ladies will pass this out to you, because this is my final seven cents worth, and
these are pennies from another island where I was fortunate enough to live at one
time, the Kingdom of Tonga. And if you read on the coin that you're being given, in
the Tongan language it says, fakalahi mea kai. And if you look on those little seniti,
you turn them over, on one side you have an ear of corn, and on the other side you
have a pig. And unlike American where our coins say In God We Trust, fakalahi
mea kai means grow a lot of food. And certainly I can tell you that if anyone trusts
in God, it's the Tongan people, and I don't know if you've been fortunate enough to
know any of them, but they're very religious and wonderful people. But their coins
that they carry every day pretty much says what their motto is, because the ship
only comes in once a month to Tonga. So it says fakalahi mea kai, grow a lot of
COUNCIL MEETING. - 84 - • July 28, 2010
food. And some of them have watermelons, and some of them have pigs, and some
of them have (inaudible), and some of them have breadfruit. But that's my final
seven cents worth. Thank you so much. You guys are awesome to do all of this. It's
not a bribe. I wasn't sure about that, if it was the appropriate time.
Ms. Kawahara: Thank you.
Council Chair Asing: Thank you. Tim.
Mr. Bynum: I'm sorry, I had organic spinach from your farm
this week; it was delicious.
Ms. Wooten: Okay, great. Awesome. Thank you.
Council Chair Asing: Is there anyone else?
Ms. Neuman: My name is Linda Neuman, and I stood before you
a year ago and pleaded with you to pass this bi11...I'm getting all choked up. This is
really an emotional issue, and you guys today have been through so much. I can't
imagine what you go through day after day, and I understand how hard it is for you
to make these decisions. But I want you to know that by passing this bill, you will
give us some hope to a situation that I didn't bargain for and...but farmers are
strong, and we will persevere, and we will win, and I hope with that that you do
pass this bill. And I hope to be selling you my produce soon, and I hope you will buy
it, and it will be good, and I want to thank you very much for all that you've done,
because this has been a hard long road for all of us. And I hope you vote for this bill
to pass. Thank you.
Council Chair Asing: Thank you. Can we have the next speaker please.
AL CASTILLO, JR., County Attorney: Council Chair, excuse me. Al Castillo,
County Attorney. I would just like to read the code of ethics standard of conduct,
and I think it's important, because just so that there's a full disclosure here. No
officer or employee of the county shall solicit, accept, or receive directly or indirectly
any gift, whether in the form of money, service... Let me read it all first. I would
like to read it in totality. (Inaudible), travel, entertainment, hospitality, thing, or
promise, or in any other form under circumstances in which it can reasonably be
inferred that the gift is intended to influence him in the performance of his official
duties or is intended as a reward for any official action on this part. So that's what
the rule is.
Council Chair Asing: Thank you. I want to thank the county attorney for
getting us out of trouble. With that, can I have the next speaker please.
Mr. Oyama: Roy Oyama for the record. And now I can smile, so
I'll smile to you, thank you. And the county attorney, Al Castillo, is a great guy. I
know him very well, and he does his job well too, so I hope you all respect him. And
of course thank you for Louisa for trying. It's an aloha spirit actually. Right,
Louisa? Right? That's what it is. Would that pass, Mr. Attorney? Well anyway,
we're happy, you know, what has happened so far, and it is a big night for tonight
really, and it's, you know, we all going home tonight, I hope everybody be happy,
and I'd like to thank you. ahead of time, because I think I have a vote of confidence
when I see... I really... deeply in the farmers heart, I'll let you know, that they want
to reach you. That's the reason why Louisa was trying to reach you people, okay. It
is not something she want to give. It's coming from their heart because of the
struggle in farming, and it's not an easy life. They have a milking dairy. They do
cheese. They do other products. It's a lot of work, and we have other farmers too,
COUNCIL MEETING • - 85 - • July 28, 2010
as you know, Ned, and Becky, we have several more, and I don't want to go through
all of that. But I just want to make sure that the council is appreciated. We thank
you all, and I hope we can somehow connect in the future areas of how we can
improve our agriculture movement on the island. I'm looking forward for that
strongly, because I know some of you are looking for some additional bills to come
forward. Please don't, you know, be hesitant to call upon us and we would like to
cooperate and work on it and make sure we have Kauai being sustainable if at all
possible. Thank you.
Council Chair Asing: Thank you. Is there anyone else who wants to
speak on this item? Going once. Going twice. Thank you very much. I'll call the
meeting back to order, and can we have a motion to approve the bill?
The meeting was called back to order, and proceeded as follows:
Mr. Chang: Move to approve.
Mr. Bynum: Second.
Ms. Kawahara: Second.
Council Chair Asing: Okay with that, I'm going to turn the chair over to
Councilmember Furfaro, and I'm going to make a short presentation. Thank you.
Council Chair Asing: Let me start the presentation now. Let me first of
all say that I support the intent of the bill, but I have grave and serious
reservations about the bill the way it is structured today. I believe that it is bad
planning, and the also it will reward people who are currently violating the law and
have been violating the law for years. In order to understand the motive behind the
bill, I will give you a little background information. I did share some of this
information with you before, but I will try to skim over it on the portions that I've
done before. When Amfac sugar plantation stopped cultivating the land in Moloa`a,
it developed an agricultural subdivision and leased the lots to farms from Kilauea to
Kapa`a. In 1998 a corporation called the Moloa`a Hui Inc. bought the property from
Amfac. Under our zoning ordinance, ag land can only be subdivided once. In order
to develop the property, Moloa`a Hui applied for a variance permit that allowed it to
consolidate the lots created by Amfac's ag park, and resubdivided into two lots. One
lot consisted of the open zoned lands, and the other lot consisted of mostly ag land.
The corporation's application outlined the proposed use of the property and it
sounded good. It sounded good, and I totally agree with it...the plan, but the plan is
not being followed today. People are breaking the law and have been for years.
Let me start with the first slide. I did cover this, and what this is in 1998
there was a variance permit, a class IV zoning permit, and the application went
through, and the permits were approved. And this was in 1998. You can do the
next one. Now this is that proposal. Description of the property: the land which is
the subject of the proposed permits located in Moloa`a and Papa`a. These parcels of
land approximately 727 acres total size. The subject property is classified by the
State land use commission as Ag District and Conservation District. Permit uses on
the subject property. The subject property is presently being used for agricultural
purpose. The subject property was part of lands formerly owned by Lihu`e
Plantation Limited, which were subdivided into a 22-lot agricultural subdivision.
These lots were leased by Lihu`e Plantation to the Moloa`a Farmers Cooperative and
were used for cultivation of papaya and other crops.
COUNCIL MEETING • - 86 - • July 28, 2010
The applicant intends to consolidate the various parcels comprising of the
subject property and subdivide the consolidated parcels into two lots. Lot one will
be approximately 592 acres in size and will contain lands formerly leased as and
used for agricultural lots by the Moloa`a Farmers Cooperative. Lot two will be
approximately 131 acres in size and will contain lands which formed the buffer area
around the former ag lots, and those were the open portions. On the bottom here...
The applicant intends to establish two agricultural condominium property regimes
on lot one, and they will call it Moloa`a Hui I and Moloa`a Hui II. The applicant
intends to establish two agricultural condominium property regimes at Moloa`a, and
I just read it, one and two, and there will be a 19 unit CPR; that was their plan.
The owners of five of the units will be entitled to construct a single family
residential farm dwelling for a total of 5 farm dwellings. The owners of the
remaining 14 units have no right to construct farm dwellings. All of the units,
included those entitled to farm dwellings, will be used for agricultural purposes.
Moloa`a Hui II will be an 18 unit CPR. The owners of the four units will be entitled
to construct a single family residential farm dwelling, for a total of 4 farm
dwellings. The owners of the remaining 14 will have no right to construct .the
dwelling. Bottom line of all this is 9 dwelling units are the maximum units that
would be allowed, and that's the bottom. You want to go back again? The
maximum housing density for lot one, that's Moloa`a Hui I and II, will be 9 farm
dwellings. These lands will continue to be used for agriculture purposes and I don't
have to read the rest. Keep on going.
This is that parcel, and as I told you, this is lot orie, this is lot two. Lot two is
not in the picture, so this area here is the project area that we're talking about. The
next one. And remember my saying that you had...they called it Hui one and Hui
two, and Hui two had 4 dwelling units allowed, and Hui one had 5, so the total
amount of units is 5 plus 4, and 9 allowed in here. And you see the 28 here that
units not allowed for housing. Total units at that time.
Now since that time, let me just explain first. Here are the units that are
allowed, one, two, three, four, five, six, seven, eight, nine. So this is the initial 1.998
proposal and only 9 of these units. Since then, what the developer did, if you recall
the previous slide, it was a total of I believe 37 units; plus the 14. But what they
did was they kept on CPRing properties in here, so that the bottom line now today
as it stands, the total CPR units here is 61 units. Of the 61, the 9 that is here that
was approved in 1998 has been since changed, and if we do the next slide, we'll
probably see that. And here is that change.
At the opening of the public hearing, August 14, 1997, the applicant
represented to the commission that the maximum 9 farm dwelling units would be
constructed on lot 1, which is that bit lot, and that these homes would be exclusively
for Moloa`a Hui farmers as a result, condition number 3 of the above permits was
imposed and reads as follows...I don't have to read this. It was intended for only
farmers of Moloa`a Hui and their families and/or employees. Now this request, and
let me read the request. The request, the applicant is requesting to amend the
original representation regarding the residential density on...for lot one by
increasing the amount of farm dwelling units from 9 to 13 units. The basis of this
request is that there was a need for additional house sites on the subject property.
Lot one, after consulting potential farmers, buyers, subsequent to the subdivision
approval, and lending institution would not approve loans on just raw land, and so
they used that as the justification for an additional four more. So the total, which
was approved, is now 13. Because it is on one big lot, there is another additional to
the 13, and that is the additional unit which could be built on the property, and that
is the...in our zoning we have an additional unit that can be built, and that is
the 14.
COUNCIL MEETING • - 87 - • July 28, 2010
Okay, let me read this. The applicant explored the option of subdividing the
property to accommodate additional farm dwelling units; however, it was
determined that the subdividing of the property would be contrary to the intent and
function of this development as an agricultural park subdivision. Thus, the
applicant is seeking the proposed amendment, and the proposed amendment is
simply to do... and let me just read it right here, the maximum of 13 farm dwelling
units for the property. So this is how the 13 came about, and I don't have to read
the rest. So what we have now, today as it stands with the amendment that was
made in the year 2000 for this application, if you look at the bottom, we now have
the one, two, three; four additional units (oh, the battery is weak on this), and so we
have a total now of 13 units. And the 14th unit that I mentioned is the guesthouse,
and because this is one lot, one lot entitles you to a guesthouse, and that's where
the number 14 came from. Now, I want you to keep in mind the number 14. The
number 14, you're going to find at the very end, is a magic number, and it was
intentional on the developer to do 14, and I'll give you the reasons why it was 14
and not extending to more than 14. You want to keep on going?
I just want to explain that this is the Kilauea area. I made this in the last
presentation, and all I'm saying is, in this particular area here you...what we're
showing is you have approximately 585 lots here... CPR lots in total, and if this bill
passes, the potential addition that you can add to this is going to be... do we have
that on? This is the potential addition. This potential addition (wow, this thing is
not working anymore)... this potential addition is... there are, of the 585 CPR units,
there are 261 of these units that have ag dedication. The two big issues on this
proposal is if you have ag dedication, if you have CPR completed, those are the main
qualifying point, aside from the income, as an example. So potentially this is what
you can look like if this bill goes through. All of these additions can take place, and
this is only one unit. You can triple this. That is the possibility, because this bill
allows you to do three farm worker housing units per CPR. So that's how big a
problem this could be. I'm talking about the potential. Okay, you want to put the
next slide?
This happens to be in the Waipake area. You can do that...point out that
property. I just want to explain. That piece of property there, all of what you see
here, is an ag subdivision. So put the... Okay, this property here is
approximately 10 acres in size, and you can put 4 units on, and it's simply ag zoned
and it's not CPR'd yet. Here's what happens when you CPR it. Go ahead, take the
next slide. When you CPR it, first of all the CPR, you notice there's four now, you've
divided that into four, and remember, you have one big lot, so that entitles you to a
guest cottage, and that's the fifth one on the bottom right hand side, so it's five.
Now what this bill does, that's dedicated land, every one of those four lots you can
put three more, by this bill. So again, the potential increase is horrendous on what
we're trying to do. Okay... And this is the potential that I'm making reference to
on what could happen, and this is just adding one unit . on one of the CP.Rs in the
four noted there.
This slide is just to show you...the blue represents all of the ag lands over
there. The red is the urban district. The reason I show you this, I'm going to take
this red here, yeah, and I'm going to put this red, which represents the urban area.
It's approximately 250 acres. This 250 acres here of urban, I want to show you how
big the project is in Moloa`a. Many people don't understand and know how big the
Moloa`a project is. Here it is. It's 250 acres. Now the Moloa`a area is 590 acres. So
you talking about a huge project. It is not a small project. And you remember my
making reference to the red area in Kilauea and the blue that represents that ag?
When you look at that, there is nothing to expand. You cannot expand anymore; it's
gone. You lost it. Well, you're going to lose this one too, that's what's going to
COUNCIL MEETING • - 88 - ~ July 28, 2010
happen, unless if you keep to the design, the use of all ag, then you'll be okay, but I
don't believe you're heading in that direction. You are not heading in that direction.
Okay, take the next one.
Let me explain this slide here. This slide simply shows the dots represent
the units that are allowable. The lots that show here in red, outlined in red, these
are the lots that have violations. There are 16 lots here that was inspected by the
planning department's inspectors, and all of these 16 have violations, many
violations, many violations, 16 of them. Of the 16, I think you can see that there
are just three of them...one, two, no...back up here that's two, and that's three
there. Those are the three units that are allowed to build units; the rest of them,
they're not allowed. You can't put any units, because it was designed that way,
intended that way. But what people are doing, they're building units anyway,
against the ordinance. So what is it? It's violations, period, that they should not
have been allowed to do it. The planning department has done inspection, and for
your information, the planning department did the entire area. The red that I'm
showing you here are only the violations that occurred, only the violations.
Let me show you some examples of the violations, and here is one example of
a violation. In this particular one... go back again, this violation here, I want to just
read this to you. As represented, farm dwelling units are not located on site
specified as approved. In other words, on this particular inspection of that parcel,
farm dwellings are not allowed. But what are they doing? They're building farm
dwellings anyway, against the law, against the law. And if you look at this
particular violation on one of the parcels, this one here numbers 16 violations, all
kinds of violations. But the problem is that you're not allowed to build a unit, and
yet they build a unit anyway, and this has been going on for years.
And let me read this here. Item 7, the construction and placement of one
Quonset but structure as a dwelling without proper permits constitutes a violation.
Let me read 8, the placements of two pipe frame structures with membrane roofing
and wood flooring used as a dwelling without proper permits constitutes a violation.
And if you noticed dwelling on this particular violation, there are three dwellings
violations. So that's the law, but we don't follow the law, and that seems to be okay.
The next one. As I mentioned to you; this was the same one, I believe, and that's
the 15 violations. This is another violation here, and let me just read this one. As
represented, farm dwelling units are not located on site specified as approved.
Again, this is one of the parcels that you're not allowed to put a unit on. You just
not allowed, but units are being placed anyway. And let me read it anyway. The
placement of two steel containers used as dwelling units without proper permits
constitutes a violation. The construction and placement of one pipe frame structure
and membrane covering used as part of dwelling unit, dining room, living room area
without proper permits constitute a violation. Next. And you're hereby ordered to
remove any and all illegally established structures within 30 days of violation notice
of this date, and it just continues. The violations are there, have been there for
years, and the planning department is just not able to continue to try to get the
violations handled and taken care of. So I won't read the rest.
Okay, let me show you the violations. Now, what you have here, you have a
kitchen over here. You got stove, you got ice box, is this a dwelling unit? Of course
this is a dwelling unit. But you're not allowed a dwelling unit on the property, but
you do it anyway, so it's violations. What are we doing? If you look at these, all of
these here, people are living there, and you're not supposed to be living there,
because you're not allowed to. If we're not going to be following the law, then forget
it. Next picture. This happens to be another violation over here. Next picture.
And as you can see, people are just living there against the rules. This is again
living, this is the stove, and the ice box, and people just living there with no
COUNCIL MEETING • - 89 - • July 28, 2010
permits, first of all, and illegal, and these are just the structures that are there.
Keep on going. Keep on going. And these are just what is there today. So... and
again, this is, you know, so called kitchen, so the bottom line is people living there,
the planning department has done their job, they've done the inspections, they've
cited, they're done their work, but evidently it just don't matter, so it's illegal. So
what is happening now is that this bill will legalize all this, so it will now be legal.
And it's very difficult for me to do that.
Now you have... go back... no, keep on going. Now you have buildings like this
also that have no building permits, and what is going on out there is almost
outrageous. If we defy the laws and say well that don't count, I know you're not
supposed to, but it's okay, and that's what we're going to do with this bill.
Everything here will be legal. This again is another one, and I wanted to show
you... Go ahead, try the next slide. This one here again you notice this is the
kitchen here, ice box and...
Mr. Furfaro: Mr. Asing, may I just ask for a recess and have a
moment with you to share something that you may want to be aware of?
Council Chair Asing: Sure, okay. I'm almost done, you know, not too
much. Here's a full bath here, adining/living room, you know, living in this -house,
and this house is not allowed under the... Now let me just kind of finish up by
doing this. That is the...all of the problems on the activity in Moloa`a. Let me just
add one more thing. Now this project is currently served only by agricultural water
service, which has been supplied for over 20 years by either private wells or from
wells operated under the State of Hawaii license, which wells are located in the
vicinity of the project. No potable water is currently available to the project, and
none is promised. Any part desiring to provide domestic or potable is not going to
happen.
I want to tell you that you remember the figure that I mentioned, the magic
number 14, let me read this section to you here. Definition as used in this chapter.
Safe drinking water. Public water system means a system which provides water for
human consumption through pipes and other constructed conveyances if the system
has at least 15 service connections. The number 14, you remember the number 14,
because if it was 15, then your system will now fall under a public water system.
You will now be regulated by PUC and the department of health, and the
department of health will not clear you with no potable water. So these are just
additional types of problems. I'm hoping that somehow this can be worked out, but
it is not going to be easy, because the developer, I don't believe, is going to take the
responsibility; therefore, you will have a water system that will not comply to the
board of health rules and regulations. So you have another problem that will exist
in that area. This is just the modified public water systems, and I won't talk about
this, because I did just mention you need the department of health approval. I don't
think we need to do this. And then the last one was the public utilities, you're going
to have to go through the public utilities commission because you're doing water.
And I think that's it. Okay, so with that...
Let me just finish by saying this... 1998 and 2000 approve. You have a class
4 zoning, you have a subdivision and you have a variance permit. What is approved
today? Here's the approval today... thirteen (13) dwellings units, what is
happening? Abuse, continuous flagrant CZO building variance permit violations
over a ten (10) year period and I showed you that, all of the violations that are
there. And then we passed this bill and here's the reward, farm worker housing and
what I did was I added the green here is just adding ninety-seven (97) dwelling
units. The reason I put ninety-seven (97) dwelling units there is, forty-two (42) of
these sixty-one (61) units qualify for the main two (2) areas, CPR yes that's clear
COUNCIL MEETING - 90 - ~ July 28, 2010
you got that, forty-two (42) of them... you have forty-two (42) that are cleared for Ag
dedication, so there's forty-two (42) units that qualify so hence if you put two (2)
units of each of the forty-two (42) that is what you look like over there so the reward
is you get ninety-seven (97) dwelling units. Now I know that I sound harsh and but
this is what I see and what I found and I don't think it's right, I would .not want to
reward anyone for breaking the law. Now because of that I'm saying well so what
Councilmember Asing, what is your solution? My solution is, there is a use permit
process today that's in the ordinance it's in the ordinance. Under the ordinance on
section 8-7.3 uses and structures that require use permit, you have under item five
(5) construction and worker temporary housing, it's there... use it. That's why it
was put in. So there is a solution and as far as I'm concern,. the solution was always
there it's just that nobody has ever used it and those are the concerns that I have
and my reasons for not supporting this. It's very, very difficult for me to support.
Ten (10) years of this abuse. And I showed you the pictures, the Planning
Department has done their job, the inspectors did the entire area, the sixteen (16)
that I showed you were sixteen (16) that committed violations, that's all. The rest,
there was no violations, only the sixteen (16) but I just have difficulty, almost like
rewarding people for all of these violations over the ten (10) years and people who
bought new in the very beginning that your unit that you bought, you were not
allowed a unit because it was intended to be that way. It was intended for you to be
outside coming in and just farm, not live there. It was not designed for that
purpose, only fourteen (14) units was supposed to be inhabited, the rest was not
designed for that purpose. So you still going to have to clear this area too, so with
that thank you very much.
Mr. Furfaro: Did you?
There being no objections, the rules were suspended.
Ms. Yukimura: Ah yes Mr. Chair could we... I really appreciate
what Chair Asing has said but I think for a full public policy discussion, we would
like to have a full... because there was not... not all that was said was accurate, it
needs to be cleared for the record.
Mr. Furfaro: Yeah I do want to say something and I ask for a
recess... you can come up to the stand JoAnn but I do want to make note and just
share with the Chairman and in my concern obviously when we referencing the
violations, you know they are violations that perhaps should be expanded on... is if
they actually found the violation to be a violation, is it in the process. Do we have a
situation here that, I do believe we have a future item on the agenda which is
visiting Moloa`a again and perhaps we can expand on that, that was a
communication to the County Attorney and the Planning Department about the
issues that... I don't know quite how to say it other than there is a violation issued
but it still has to be determined, it looked pretty bad in the photos there but I also
saw our staff members there, I'm not sure what kind of exposure that gives us as
well. But I'm going to suspend the rules JoAnn...
Ms. Yukimura: Thank you.
Mr. Furfaro: I'm going to give you the floor.
There being no objections, the rules were suspended.
COUNCIL MEETING ~ - 91 - • July 28, 2010
Ms. Yukimura: Thank you and if there are a couple others who
know better the situation than I do and if they'd be allowed to speak too. But I just
wanted to say, I actually very much am concerned about what Chair Asing has
brought up in terms of the Kilauea area where people have Ag dedications and I
do...
Chair Asing: Two hundred and sixty-one (261) of those units...
Ms. Yukimura: Thank you.
Chair Asing: On that map qualify for the...
Ms. Yukimura: Right.
Chair Asing: Two (2) main areas...
Mr: Furfaro: Mr. Chair...
Ms. Yukimura: Yes.
Mr. Furfaro: Let's let her finish first.
Chair Asing: Okay.
Ms. Yukimura: Yes.
Mr. Furfaro: Statement please.
Ms. Yukimura: And the Real Property Tax people themselves have
said that Ag dedication alone does not, is not good enough to distinguish between
real farmers and fake farmers, so we... that makes me say that we really have to
make sure our protections are rigorous. But as to the point about there being some
illegal farm dwellings, the whole purpose of this bill is to legitimize a need that
farmers have in order to farm. I mean one thing that is clear about Moloa`a is that
there is a lot of farming going on, that people are actually producing food for our
community and in some... in a few of those shots showed incredible fields of
vegetables and fruit trees and nobody that I know of, the people who are very
concerned that this bill may not be strong enough, like my friend and classmate
Roy Yamakawa and some others... one thing they all agreed with me on and
everybody so far that I've talked to agrees on is that farmers need to live on their
land. I have not heard anybody say that. I used to support when I very started...
when I was twenty-six (26) years old, first elected, I said let's have the German style
of farming where you live in the farms and you walk out to your field so no... and I
since came around because everything that I know from farmers who are really
farming, says they need to be on the land so... Moloa`a has created great hardship
too for the farmers who are farming and as long as we can tie it to real farming, we
should be okay. But that is the question. Are we tying is so securely to real
farming, is the Planning Department capable of enforcing. And the reason why that
temporary and construction housing doesn't work is because there's no clear
standards by which to issue that permit. And this bill is trying to develop some
clear standards, otherwise it's like based on who's applying and it's all over the
place and too much discretion. The existing law needs some hard criteria which we
have labored over and I think that's what makes this bill better than the existing.
But Chair Asing if you have these concerns then propose more... more protections
or more criteria like in our Real Property Tax we said have at least seventy percent
(70%) of the land area be used for farming and I know that green houses may be a
problem but we haven't really looked at that, we need to look at that. So I mean...
COUNCIL MEETING - 92 - ~ July 28, 2010
make this bill better and stronger if you will but don't go back to the status quo
because it is not sufficient, it will create huge abuse and it's not what any of us
want either you or I or anyone else. But thank you for your concerns because we
need to hear them and listen to them but I don't agree with the fact that that you
can realistically expect farmers to farm without having somebody living there, at
least that... I bet the farming community would tell me otherwise if that's the case
or show how it is.
Mr. Furfaro: Thank you. Let me see if I have any questions,
Mr. Bynum did you have a question directed towards...
Mr. Bynum: Well no, no.
Mr. Furfaro: No you did not. Thank you. I'm going to let people
from the audience come up, please come right up.
Ms. Newman: My name is Linda Newman and I never seen a
more distorted picture of the process of Moloa`a in the many, many hours that the
farmers have met to discuss this very situation. I have never seen a better
presentation for the fact that this bill must pass. The farmers deserve the right and
as I see all the dots, I know every lot in Moloa`a, I know who's farming, I know
who's not farming, I know where houses were put, I know where bluff houses are
being put but I am going to say that there is food production and the purpose of
farm dwellings is to allow people to live on their farms and produce food. I never...
thank you for that presentation but will tell you, your presentation is a bit wrong...
and maybe you would like to sit down with the farmers of Moloa`a and get the play
by play of how the, how it enfolded and as you start talking numbers and dwellings,
see where the dwellings are, seeing where the CPR... I am sorry that it has been
allowed, I am sorry that people have been allowed to CPR their units, that is really
a sad thing but don't look at the farmers and say they have violations when the
violation will be the very people who allowed it to be reCPRed into all of those units,
into two (2) acre units. So I would say sit down with the farmers and discuss with
them so that you have the exact system of how this work because we've all been
through it over and over and over and agonizing over how this situation has
occurred but again I think it's an excellent point to pass this bill because that is
what farm worker housing is all about, people should not have to live like that. We
are human beings and we have the right to have good housing and sanitation. And
that's what I have to say, thank you.
Mr. Furfaro: Thank you. Is there any questions?
Chair Asing: Are you going to pass the Chair back to me?
Mr. Furfaro: You can have the floor, go right ahead.
Chair Asing: No... are you going to pass the Chair back to me?
Mr. Furfaro: I think I am after I get a little...
Chair Asing: Okay.
Mr. Furfaro: Opinion Mr. Chairman...
Chair Asing: Sure.
COUNCIL MEETING • - 93 - • July 28, 2010
Mr. Furfaro: I'm kind of, I'm kind of concerned that we're going
to pursue Moloa`a as a separate item that was there. We have no more of your time,
Anne you can come up Anne.
Ms. Punohu: Aloha Anne Punohu representing the Kauai Fair
Housing Coalition. Uncle, I get what you're saying, totally. However I want to
state my position as trying to represent the housing situation and especially for
virtually to put it bluntly and no other way in term, homeless people with nowhere
to live in substandard housing on this land, it is an issue it's a safety issue, it's a
social issue, it's a food safety issue so what I'm trying to explain to some other...
some of my friends over here but they don't quite get what I'm saying... is that
under the Federal law and I will say it again you cannot make a law that prevents
farm worker housing from occurring if somebody has a farm worker on their
property as the employee, they are mandated by law to provide safe, adequate and
housing and if there is a law that prevents it from occurring but they need the
employee to produce the produce and they are the employer and you have prevented
them from being able to do that thus forcing them to violate a Federal law, that in
my opinion makes the county or the state or whoever made the law duplicitous in
that event. The reason why we have this issue right now of them needing to have
the farm workers on the property is because there is no outside housing for farm
workers at this time. What JoAnn was talking about having the... Chairman
(inaudible) or whatever it was is that here's the farms and you should be able to
travel to your farms and there should be no dwellings on the farms, you should just
be able to go to the farm and do your farming. However our situation on Kauai and
our housing crunch is so bad that that cannot occur anymore because you don't have
the housing for the farm workers, therefore, they needed the workers, they put the
workers on the property and they're living in these substandard conditions and you
can see those structures and I agree. Those constructs are wrong. They should not
exist and nobody should be living in them. They are violations; however, if you take
this bill as a good thing, if you follow OSHA law, those dwellings will have to be
built to standard and they would, they cannot be occupied until they have a OSHA
sticker on them and they would have to follow some very strict standards as far as
farm housing on the State and Federal side. Or they would be in violation and
according to the bill, you couldn't have... you couldn't occupy the housing. It
behooves everybody to get these people into good housing so that the occupational
farming could continue. And I know...
Mr. Furfaro: Excuse me Anne. I'm going to stop you here a
second...
Ms. Punohu: Okay- sure.
Mr. Furfaro: I'm going to ask the clerk's office, is somebody there
timing the public speaking there? Good, thank you...
Mr. Bynum: Three (3) minutes.
Ms. Punohu: I talk fast.
Mr. Furfaro: Go ahead, I'll ask you to summarize.
Ms. Punohu: I just want to summarize by saying that let's
remember what the core purpose of this bill is. The core purpose is to prevent what
you showed so magnificence Uncle, is to prevent those kinds of dwellings from being
there and to put decent housing (inaudible) workers which we would've had if we
had decent housing on this island but we don't and so there you go, aloha.
COUNCIL MEETING. - 94 - • July 28, 2010
Mr. Furfaro:
Chair Asing:
Thank you Anne.
Jay?
Mr. Furfaro: Yes. Oh we still have someone? Come right up.
And Roy, you want to speak after that?
SUE LIDDLE: For the record, I'm Sue Liddle. I live in Kapa`a but
I have property over in Moloa`a. I'm not quite sure where to start here. Your...
much of your presentation Mr. Asing is correct, also some is not. One of the things
that hasn't been addressed and you touched on was the water issue and it's non-
potable water. Why then are there thirteen (13) houses allowed to be on there and
have non-potable water?
Chair Asing: You want me to answer that?
Ms. Liddle: Why was...
Mr. Furfaro: Excuse me, let me have Mr. Asing answer your
question?
Ms. Liddle: Okay I have a continuation of that...
Mr. Furfaro: That's fine.
Ms. Liddle: Part of Hui three (3) that is...
Chair Asing: Let me answer that...
Mr. Furfaro: I want him to answer the first question.
Ms. Liddle: Well this is a continuation of that...
Mr. Furfaro: Oh okay then I'll let him answer when you finish
your piece. Go ahead.
Ms. Liddle: Thank you. Moloa`a Hui three (3) was subdivided, I
still can't get any answers as to how that was allowed to be subdivided, that is also
on non-potable water, that's an actual subdivision with houses, twenty-six (26)
houses that are there now... how did that happen on non-potable water?
Chair Asing: Let me just answer the question by saying this...
as I stated earlier if the number of connections... you read the rule, I put the rule up
right? The number of connections are fourteen (14) or less, you do not fall under the
Board of Health, so the Board of Health has nothing to do with it. There are two (2)
criteria that you need to follow, one is if you have fifteen (15) connections, you are
automatically a public water system, you will now fall under the Board of Health
rules and you would have to abide by those rules, okay? You are not at the present
time, that's one criteria... the number fourteen (14) because if you get to fifteen (15)
you fall under the Board of Health rules and you fall under PUC. Now two (2) if you
have more than twenty-five (25) people living there then you also fall under the
Board of Health rules. So there's two (2) criteria, one (1) is the magic number
fifteen (15) when you hit fifteen (15) you will fall under the Board of Health rules or
if you have more than twenty-five (25) people living on the property, you'll fall
under the Board of Health. Because you do not have the number fifteen (15), you
have fourteen (14), you're not under the...
COUNCIL MEETING
Ms: Liddle:
Chair Asing:
I want to clear it to you.
Ms. Liddle:
Chair Asing:
Ms. Liddle:
- 95 - ~ July 28, 2010
Fourteen (14) houses but more people.
Yeah that's the reason. So you asked the question,
And then how about the triangle of Hui three (3)?
I'm not familiar with that.
That's where the triangle on the road...
Chair Asing: No that's... I didn't do anything in that area, I was
concerned about the portion that has the building... here's all I'm pointing out, all
I'm pointing out is simply this... this entire project here falls under a class four (4)
zoning permit, a subdivision permit and a variance permit that was issued in 1998
was the nine (9) units for this and again amended in 2000 for the additional four (4),
that's all I'm making reference to. You have a permit to operate this subdivision
and that's all I'm talking about, nothing else. You are constrained to operate within
the rules as approved by the class four (4) zoning of 98 and 2000, the subdivision of
98 and 2000 and the variance permit which was approved on 1998 and amended
2000 and that's all I'm making reference to. That's all you can do. By these... the
subdivision variance and class four (4) zoning, you cannot do anything else. That's
the law, that was what was agreed to and passed by the Planning Commission.
And that's all I'm making reference to, I'm just saying with the project.
Mr. Furfaro: Okay Mr. Asing on that note...
Chair Asing: Thank you.
Mr. Furfaro: We're required to take a caption break.
Chair Asing: Okay.
Mr. Furfaro: Okay and we can come back and Mr. Oyama, I
know you want to speak next but he's answered that part of the question...
Ms. Liddle: Thank you.
Mr. Furfaro: And I think this is a good place for us to take a
caption break...
Chair Asing: Thank you.
Mr. Furfaro: We'll take a ten (10) minute caption break.
There being no objections, the Council recessed at 9:13 p.m.
The Council reconvened at 9:27 p.m., and proceeded as follows:
Mr. Furfaro: I think where we left off, Mr. Oyama you wanted
to speak and I'll go ahead and give you your time.
Mr. Oyama: I got to thank the Chair for presenting his side of
what this issue is... Oh I'm sorry Roy Oyama, Kauai Farm Bureau. I just want to
thank the Chair for presenting his side of the view and I think it's time for a
rebuttal of what is agriculture. Numbers that he has described, I mean I'm not
trying to make this issue that we are against it, I'm trying to make sure that, this is
COUNCIL MEETING - 96 - ~ 'July 28, 2010
a good step for the agricultural sector and as you know this was mostly presented
for Kilauea and Moloa`a on the CPR issue, mostly. The CPR areas where he has
also stated from the numbers in blowing up the unit to ninety-seven (97) that's a
qualifying area of each unit that they can qualify for three (3) if they have thirty-
five thousand ($35,000) three (3) times and all the other requirements. And you got
to understand if this happens, what would the agricultural result be only in
Moloa`a? I wish you would try to figure it out. I know some people have and I will
not say the figure because I think you people need to, maybe say so that the public
understands that. But I know it's a heck of an amount of production. If we have
that only in Moloa`a and we can do it elsewhere with all of this CPR, it's going to be
a big, big fruit basket for the island of Kauai. And also to it is not in the area
where we want this because we are desperate, it is for the safety of the farmer and
his fellow employees. And also another area was very much stipulated in this rule
is the person who's going to be in the house is rent free, there is no charge for rent,
so how in the world can the farmer makes three (3) units if he's just trying to do a
TVR, or a rental unit, he cannot. So I just wanted to make sure everyone
understands it clearly, the blown up of the figures was not in the right proportion
on agricultural itself, we work hard. I think we deserve better than what we've
been talked about. I myself work hard so I want to make sure that everyone who
works that hard is respected, because they feel proud of their hard work. It's not
easy, I hope you would also try that work and tell me how long you last for the day.
This is a long day for me, I started very early this morning, it is 9:30 already and
I'm going to get up tomorrow morning at four (4), now you tell me... my little pet
dogs are going to be screaming at me:.. okay.
Mr. Nakamura: Three (3) minutes Mr. Chair.
Mr. Oyama: The farmers work hard, they deserve what they
deserve and I hope you guys will take care of this tonight. We cannot have this kind
of areas of presentation making us the bad guys, we are not the bad guys. The
reason of violation, if you were to be in their shoe, without a density. And they're
desperate to farm and they do farm... they cannot live outside of the land, you
heard that story. And many years I said that, many years... from the beginning.
We got to be on the land but nobody listened, that's why please as government...
listen. I listened to whatever my members tell me and we try to help them, so we
try to pass the information on and be sure that this words are out. Now I don't
know how else because I was not prepared for this situation, the way it came on... it
really baffled me, it really made me disappointed, it was like saying... I am a bad
guys, we all farmers violate and I tell you what... this violation was because there
was no area of help. How many years you saying you going check that... nobody
wanted to help and yes I know because I have brought some over to the Planning
Department also and all I -hear is violation, violation... well we need help, that's
why we're coming... that's why we have come to them. And also I think the Council
needs to understand, we need help... if you want food on your table to go on...
please help us... that's all I have to say.
Mr. Furfaro: Thank you and your three (3) minutes did expire
but I let you finish. I guess on that note... Mr.... I'm going to call the meeting back
to order.
There being no one else to speak on this matter, the meeting was called back to
order, and proceeded as follows:
Mr. Furfaro: Mr. Bynum, I'll let you speak because you had your
hand up when there was some testimony but I also want to know, I want to see if I
can turn the meeting back over to Mr. Asing so... let me let you speak first.
COUNCIL MEETING. - 97 - • July 28, 2010
Mr. Bynum: I don't see the word Moloa`a in this bill anywhere.
This isn't the Moloa`a farm bill, I think it impacts Waimea Valley, Waipake, Wailua,
Kapahi all of these other places too. I think the whole presentation we saw had
only a very tenuous connection to this bill at best. I know that I personally would
never be allowed that kind of latitude here on this Council. I don't think the whole
presentation about zoning... I don't see any of that in this bill. So I think it was
inappropriate to have this lengthy of a presentation but seeing as we did, I think it's
a separate issue and I don't think let's see how it has to do with this bill but what I
do know and I don't know all the details here but clearly things went wrong there
that had nothing to do with the people who are currently on the land. Also I know
that even if you don't .have density if you're farming, you should be able to have a
storage shed or a barn or a green house and that people went like Mr. Oyama said,
hey I want to be legal, I want to put up this storage shed and they said oh but the
guy over there fifteen (15) lots away has a violation so we can't do it... so this whole
CPR thing is a mess like a lot of things are and we haven't addressed it in all of
these years and I don't... till this day understand how this guy here owns his
property, has separate owners and because his neighbor did something wrong, he's
held up forever. And so there's lots of issues we have to address but I'd like to bring
it back to this bill. And this is the appropriate time, I'd like to comment on the bill.
Mr. Furfaro: Well I was hoping to have a session with the
County Attorney on the Moloa`a bill...
Mr. Bynum: What Moloa`a bill?
Mr. Furfaro: The Moloa`a bill that was received and killed. And
I'm prepared to put that as a separate item...
Mr. Bynum: In a future.
Mr. Furfaro: Yes... in the Planning Department. What I want to
make sure is what was presented today and so forth with personnel doing
inspections and so forth, that the County Attorney is well aware of it in case it gave
us any exposure but I do plan to put that that Moloa`a item that was received back
on the agenda.
Mr. Bynum: So if I...
Mr. Furfaro: Would you give me that leeway to...
Mr. Bynum: Sure.
Mr. Furfaro: Speak to the County Attorney?
Mr. Bynum: Right now?
Mr. Furfaro: Yes.
Mr. Bynum: Sure.
Mr. Furfaro: I'm going to ask to suspend the rules may I have
someone from the County Attorney's Office please?
There being no objections, the rules were suspended.
Mr. Jung: Good evening Council Chair and Councilmembers.
Deputy County Attorney Ian Jung.
COUNCIL MEETING ~ - 98 - ~ July 28, 2010
Mr. Furfaro: Thank you. I think you heard Mr. Bynum's
comments about the attachment of this and so forth being more specific to Moloa`a.
I just wanted to ask... do we have any exposure or is everything copacetic as we
presented tax key numbers, photos of our staff and so forth on issues that evidently
issued violations for Moloa`a, are we all...
Mr. Jung: We do need to look into... we do need to get a copy
of the PowerPoint and look at what photos were submitted and what was part of the
investigative files and we will address that, we will take a look at it.
Mr. Furfaro: And my assumption is those photographs probably
may have been provided by the Planning Department so I'm trying to find a way to
put a new item on the agenda in my Committee, so that we can revisit specifically
Moloa`a and the kind of issues that pertain there as I think Mr. Bynum mentioned
it's not connected to Kalaheo, other farming areas that are looking towards this bill
but it should not necessarily exclude them until we get a firm understanding of
what needs to be done in Moloa`a with the Planning Department. Would you have a
problem if I put that on a Planning Committee agenda?
Mr. Jung: We would have to see how it would be framed and
put on the agenda but we'll work with you on that.
Mr. Furfaro: So that is my, I just want to disclose that is being
my intent. Because the previous item was put on the agenda and moved to receive
so it has to be a new item. Along that line... are there any guidelines that kind of
convey to us about violations being issued versus violations being a matter of fact...
is everybody not guilty of a violation until we prove a violation actually exist?
Mr. Jung: I'd rather not comment on any potential violations
right now as relates to Moloa`a Hui since they're investigative files that are ongoing
over there.
Mr. Furfaro: I can appreciate that but that is my intent... ask
the Chair to put it back on in the Planning Committee.
Mr. Jung: Okay.
Mr. Furfaro: Is there any questions of the County Attorney here?
If not, thank you very much. I'll call the meeting back to order.
The Council meeting was called back to order, and proceeded as follows:
Mr. Furfaro: And on this next point, I am going to ask is there
any motions to turn this meeting back over to Mr. Asing to complete the meeting?
Mr. Kawakami: So move.
Mr. Chang: Second.
Mr. Furfaro: Thank you. There is a motion and a second to turn
this meeting to the Chairman Asing, may I say all those in favor say aye.
Councilmembers: Aye.
Mr. Kawakami moved to return the Chairmanship back to Mr. Asing, seconded by
Mr. Chang, and unanimously carried.
COUNCIL MEETING • - 99 - • July 28, 2010
Mr. Furfaro: Mr. Asing.
Chair Asing: Thank you. With that Councilmember Bynum.
Mr. Bynum: So back to the bill... the ninety-seven (97) dwellings
here would be if there was a maximum potential but just to remind people, you
know when I started with this bill... everybody worked really hard on this and some
really positive things have come out of that work, that have potential for this bill
and for future discussions about the theme of the day, stewardship for agricultural
lands, the... and in this instance when the bill first came the Planning Department
was involved and made a lot of recommendations and I think all of their
recommendations and more contained in this bill. There were concerns about
whether it would be abused that developers would use it as a way to escalate land
values and get density on housing that didn't exist. I shared those concerns and
there was a point where I didn't think I could vote .on this bill because it seemed to
be getting too loose and allowing for that. But the community stayed in there, the
Planning Department did, the Planning Chair and other Councilmembers, and we
came up with a bill that for some time now, I can support. Because I think it
almost... it makes that abuse unlikely but because-we're talking about business
people who are trying to grow food and we're saying to them, hey if you've been
doing it for a couple of years already and you already have dedication and you can
demonstrate thirty-five thousand dollars ($35,000.00) of gross sales for two (2) years
in a row, then we'll let you build this house no bigger than (x) and built in a certain
way... but you have to be producing this foods. So if we can build to the ninety-
seven (97) potential, I did the math and they were doing the minimum thirty-five
thousand dollars ($35,000.00) that would be three point three, five nine... three
million three hundred and ninety-five thousand dollars ($3,395,000.00) of
agricultural production from just Moloa`a. If we did the two hundred and sixty-one
(261) units that Mr. Asing talked about, minimum now... would be nine million one
hundred thirty-five thousand dollars ($9,135,000.00) worth of agricultural
production. I think that would be a pretty good thing and but we're very concerned
that these business people... well if you do all of these things, we'll let you have this
twelve hundred (1,200) square feet maximum dwelling. Now we .have other
business people on Kauai. We have business people on Kauai that are subdividing
agricultural land to build huge houses and we've seen examples of those here today.
Where there's no intention to do agriculture at all, where we have no criteria about
minimum agricultural production but we're not concerned about those business
folks, in fact there's been... in 2008 as I mentioned earlier, the Mayor at that time
asked us to curb that practice and since then there's been four hundred (400) new
lots like that created and what will be the agriculture dollars from those lots?
Probably little or none. So boy we got to get our act together and set our priorities
straight. ~I want to support that hard working farmers who have to show a
maximum production. This bill is very tight, it's not going to... there's a lot of
people who initially thought this bill would benefit them who know it's not. I think
it's probably too tight but there is some very significant people, some of which who
are in the room tonight and many others, who aren't that may benefit from this, that
will have their worked honored and valued and so I hope we do pass-this bill tonight
and I hope that the lessons we've learned from all of this focus on agriculture over
the last few months, and I have to thank all of you here.:. how much I learned from
you. I mentioned earlier that I've been reading Mr. Oyama's testimony back fifteen
(15) years and I've learned a lot of him in person and I've learned a lot from his
testimony and his ongoing advocacy for Ag and for farmers and we have a lot of
work yet to do to fulfill the desires that Mr. Oyama and others share and to do what
was our marching orders from the General Plan. So I'm going to be very proud to
support this bill, in its current state tonight.
COUNCIL MEETING ~ - 100 - ~ July 28, 2010
Chair Asing: Thank you. I want to make one correction to your
statement. You stated that the ninety-seven (97) that I have there is the
maximum... it is not the maximum. If I put the maximum up there, it's a hundred
and twenty-six. (126), the ninety-seven (97) represents two (2) units, two (2) times
the forty-two (42) that is available there, that brings you to eighty-four (84), add
eighty-four (84) to the thirteen (13) allowable units, that's where the ninety-seven
(97) came from so I just want to correct you... so again misinterpret things that I
say or have presented...
Mr. Bynum: Thank you very much.
Chair Asing: The ninety-seven (97) is two (2) units and not the
maximum of three (3). So that's all I wanted to clear.
Mr. Bynum: And if I may...
Chair Asing: Sure.
Mr. Bynum: Build on that. So if you went to the maximum of
three (3) the first one could be twelve hundred (1,200) square feet, the next one (1)
would be... three hundred (300) each... three hundred (300) square feet... so for a
total of eighteen hundred (1,800) square feet. If we went to the maximum density
we could get four million four hundred and ten thousand dollars ($4,410,000.00)
worth of agricultural production, so I appreciate the correction but you know... my
point is very restrictive for these business people who are actually producing food
for us versus wide open fair game for business people that are producing high level
homes for people who don't even live here.
Chair Asing: , Thank you. Any further discussion?
Councilmember Kawahara.
Ms. Kawahara: Quarter to ten,. I want to thank you all for being
here and it's going to be very short... grow a lot of food and thank you for hanging in
there. It's a little small step that the government can take for you, grow a lot of
food.
Chair Asing: Any further discussion?
Mr. Furfaro: Mr. Chair before we take a vote here, I just wanted
to reconfirm that you understand my intent is to look at Moloa`a separately...
Chair Asing: And I agree totally.
Mr. Furfaro: Okay and I'll put something in writing to evaluate
the violations, the Planning Commission, the inspections, all of those things as a
separate item within the guidelines of the County Attorney but I do think that you
know the real bona fide farmers deserve some acknowledgement about tonight and
about how we go forward so.
Chair Asing: Sure.
Mr. Furfaro: Thank you.
Chair Asing: ~ Thank you. Any further discussion? Yes go ahead.
COUNCIL MEETING • - 101 - • July 28, 2010
Mr. Chang: It is... it has been a long day and I know many of
you have been here from this morning so... I think it was Louisa that mentioned,
unfortunate that most of the people had to leave, we know that they're working so...
please convey to them... thank you all very, very much. I guess as part time
hobbyist as far as farming is concerned I understand how difficult it is as
Mr. Oyama said to grow because you know you got all these seedlings that you buy
with the mix lettuce or the (inaudible) and the you know the different beets and
everything else, they don't last unless I mean you can water them in the morning,
water them at night but in the heat of the day unless you got a screen or a mini hot
house, they all wilt and they wilt till they're died. So I know how difficult... I mean
just wilt straight into the ground like they're gone... like disintegrate I guess is the
word. And I'm about to disintegrate right now to be honest with you, it's been a long
day but anyways please convey to everyone of their patience and their time and I
think tonight will be a glorious evening that everybody will sleep well so thank you
all very much. Thank you very much Chair.
Chair Asing: Thank you. Any further discussion? If not, I'd like
to say again on this item and I'm going to read it into the record... I want my
colleagues on the Council, the County Attorneys, the Administration and the public
to know that I respect each and everyone for their research, analysis, views and
final opinion. This happens to be my opinion and I respect you for your opinion and
all of my colleagues here and everyone. So on that note, roll call please.
The motion for adoption of Bill No. 2318, Draft 3, as amended herein was then put,
and carried by the following vote:
FOR ADOPTION:
Bynum, Chang, Furfaro,
Kawahara, Kawakami
Asing
None
Kaneshiro
TOTAL - 5,
TOTAL - 1,
TOTAL - 0
TOTAL - 1.
AGAINST ADOPTION:
EXCUSED & NOT VOTING:
RECUSED & NOT VOTING:
Mr. Nakamura
Five (5) ayes, one (1) no.
Chair Asing: Thank you. Councilmembers, let's get Al up so we
can finish up.
There being no objections, the rules were suspended.
Mr. Castillo: Council Chair.
Chair Asing: County Attorney.
Mr. Castillo: Councilmembers, going on the Executive Session
list regarding ES-455 and I'm going down the page.
EXECUTIVE SESSION:
ES-455 Pursuant to Haw. Rev. Stat. sections 92-1 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 on legal ramifications of Integrated Assessment
System (IAS) system fixes to Permanent Home Use (PHU) calculations and related
matters. This briefing and consultation involves consideration of the powers,
duties, privileges, immunities and/or. liabilities of the Council and the County as
they relate to this agenda item.
COUNCIL MEETING ~ - 102 - ~ July 28, 2010
ES-456 Pursuant to Haw. Rev. Stat. §§92-4 and 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 consult with legal counsel for the purposes
of deliberating, deciding, and authorizing a proposed settlement in the case of Jane
Doe v. County of Kauai, EEOC Charge No. 37-B-2009-00620 and FEPA NO. K-
15516, and related matters. This briefing and consultation involves consideration of
the powers, duties, privileges, immunities and/or liabilities of the Council and the
County as they related to this agenda item.
ES-457 Pursuant to Haw. Rev. Stat. §§92-4 and 92-5(a)(4), (6) and (8),
and Kauai County Charter section 3.07(E), the purpose of this executive session is
to provide the Council a briefing, update and to request authority for a possible
settlement proposal on County of Kauai vs. Lady Ann Cruises, Inc., et al.,
Civ. No. 09-1-0165 (Fifth Circuit Court), and related matters. This briefing and
consultation involves consideration of the powers, duties, privileges, immunities
and/or liabilities of the Council and the County as they related to this agenda item.
ES-458 Pursuant to Haw. Rev. Stat. §§92-4 and 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 consult with legal counsel for the purposes
of deliberating, deciding, and authorizing a proposed settlement in the case of
Kristan C. Hirakawa v. County of Kauai, Civ. No. CV09-00247 JMS/LEK (U.S.
District Court, District of Hawaii) and related matters. This briefing and
consultation involves consideration of the powers, duties, privileges, immunities
and/or liabilities of the Council and the County as they relate to this agenda item.
ES-459 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 for
briefing and consultation with legal counsel and authority to act regarding proposed
offer of Agreement for Kealia Kealanani: Makee & Kumukumu Subdivision and
related matters. This briefing and consultation involves consideration of the
powers, duties, privileges, immunities and/or liabilities of the Council and the
County as they relate to this agenda item.
The meeting was called back to order, and proceeded as follows:
Mr. Furfaro moved to convene in Executive Session at 9:54 p.m., as recommended
by County Attorney, seconded by Mr. Chang, and unanimously carried.
There being no objections, the meeting was in recess.
ADJOURNMENT.
The meeting was called back to order at 12:17 a.m., and there being no further
business, the meeting was adjourned.
Respectfully submitted,
~,
PETER A. NAKAMURA
County Clerk
/wa/ds
• •
(July 28, 2010)
FLOOR AMENDMENT
Bill No. 2374, Relating to Solid Waste -Host Community Benefit (CAC Process)
INTRODUCED BY: Jay Furfaro
Amend Bill No. 2374, to read as follows:
"SECTION 1. Pursuant to Sec. 19.10A and 19.07B of the Charter of the
County of Kauai, as amended, Ordinance No. B-2010-705, as amended, relating to
the Operating Budget of the County of Kauai, State of Hawaii, for the fiscal year
July 1, 2010 through June 30, 2011, be hereby amended as follows:
The sum- of $95,000.00 by revising the surplus and appropriations
estimated in the General Fund, be and is hereby appropriated for the
following purposes:
Solid Waste -Host Community Benefit (CAC Process)
((Conducting a] (Expand current survey, facilitating services
for the Citizen's Advisory Committee meetings, and producing
a report.) $95,000.00 (not to exceed)"
(Material to be deleted is bracketed. New material is underscored:)
V:\CS OFFICE FILES\AMENDMENTS\2010 Amendments\FA--JF_Bill 2374 for 7-28-2010 cncl mtg (si).doc
ATTACHMENT No. 1
•
(July 28, 2010)
FLOOR AMENDMENT
Bill No. 2364, Draft 1, Relating to Transient Vacation Rentals
INTRODUCED BY: Daryl W. Kaneshiro
Amend Bill No. 2364, Draft 1, by amending Section 4 to read as follows:
SECTION 4. Section 8-17.10 of the Kauai County Code 1987, as
amended, is hereby amended to read as follows:
"Section 8-17.10 Nonconforming Use Certificates for Single-Family Vacation
Rentals.
(a) The purpose of this section is to provide a process to identify and
register those single-family transient vacation rentals as nonconforming uses
which have been in lawful use prior to the effective date of this ordinance and
to allow them to continue subject to obtaining a nonconforming use certificate
as provided by this section.
(b) The owner, operator or proprietor of any single-family transient
vacation rental which operated outside of a Visitor Destination Area prior to
March 7, 2008 shall obtain a nonconforming use certificate for single family
vacation rentals.
(c) No nonconforming use certificate shall be issued by the Planning
1~;rPcto~unles the-us~as a single-family rental is a legal use under the
Comprehensive Zoning Ordinance, and the applicant provides a sworn
affidavit and demonstrates to the satisfaction of the Planning Director that a
dwelling unit was being used as a vacation rental on an ongoing basis prior to
March 7, 2008. The Planning Director, in making the decision, shall take
into consideration, among other things, the following guidelines
(1) The applicant had a State of Hawaii General excise tax
license and transient accommodations tax license for the purpose of the
lawful operation of single-family transient vacation rentals for a period
long enough to demonstrate actual payment of taxes.
(2) That prior to the effective date of this ordinance,
applicant had deposits for reservations by transient guests in exchange
for compensation for use of subject property as a vacation rental.
(3) That applicant had transient guests occupy subject
property in exchange for compensation prior to the effective date of
this ordinance, with a pattern of consistency that evidences an ongoing
and lawful enterprise.
(d) Applications for nonconforming use certificates for single-family
transient vacation rentals located on land designated "Agricultural" pursuant
to Chapter 205 of the Hawaii Revised Statutes shall be made within
sixty (60) days of the effective date of this ordinance. If an operator as
ATTACHMENT No. 2
• •
defined under Section 8=17.10(c) fails to apply for a nonconforming use
certificate within sixty (60) days of the effective date of this ordinance, then
the Planning Director shall assess an administrative late application
processing fee of Fifteen Hundred ($1,500.00) Dollars at filing. A
nonconforming use certificate 'may be issued for asingle-family transient
vacation rental located on land in the State of Hawaii's land use agricultural
district if:
(1) It was built prior to June 4, 1976, or
(2) The Applicant has obtained a special permit under
Hawaii Revised Statutes, Section 205-6 which specifically permits a
vacation rental on the subject property.
(A) An application for a special permit shall include
verification by the Applicant that the farm dwelling unit was
being used as a vacation rental on an ongoing basis in
accordance with Section 8-17.10(c).
(B) An application fora special permit pursuant to
Hawaii Revised Statutes Section 205-6 and Chapter 13 of the
Rules of Practice and Procedures of the Planning Commission
that is deemed complete by the Planning Director must be filed
within one (1) year of the effective date of this ordinance. Upon
completion of the application, the Planning Director shall issue
a provisional certificate that will allow the transient vacation
rental to operate. The provisional certificate shall be null and
void after the Planning Commission or the Land Use
Commission makes a decision upon the application.
(C) In addition to the Special Permit standards set
forth in Hawaii Revised Statues Section 205-6 and Chapter 13
of the Rules of Practice and Procedure of the Planning
Commission, the Planning Commission may only grant a special
permit if, prior to March 7, 2008: (1) the property upon which
the transient vacation rental is located had a registered
agricultural dedication pursuant to the guidelines set forth in
.the County of Kaua`i's Department of Finance Real Property Tax
Division Agricultural Dedication Program Rules; (2) a bona fide
agricultural operation existed [prior to March 7, 2008], as shown
by State General Excise Tax Forms [and] and/or Federal Income
Tax Form 1040 Schedule F filings; or [(2)]~ the Planning
Commission finds that the size, shape, topography, location or
surroundings of the [lot] property or other circumstances, did
not allow an applicant to qualify for an agricultural dedication
pursuant to the County of Kaua`i's Department of Finance Real
Property Tax Division Agricultural Dedication Program Rules or
inhibited intensive agricultural activities [prior to March 7,
2008] .
2 ATTACHMENT No. 2
• •
(D) If the application for the special permit is granted,
then the transient vacation rental operation shall be subject to
conditions imposed by the Planning Commission or the Land
Use Commission.
(E) If the application for special permit is denied, then
the nonconforming use certificate shall not be issued and the
transient vacation rental must cease operation.
(e) The owner, operator, or proprietor shall have the burden of proof
in establishing that the use is properly nonconforming based on the following
documentation which shall be provided to the Planning Director as evidence
of a nonconforming use: records of occupancy and tax documents, including
all relevant State of Hawaii general excise tax filings, all relevant transient
accommodations tax filings, federal and/or State of Hawaii income tax
returns for the relevant time period, reservation lists, and receipts showing
payment. Other reliable information may also be provided. Based on the
evidence submitted, the Planning Director shall determine whether to issue a
nonconforming use certificate for the single-family transient vacation rental.
(fj The Planning Director shall make available to the public at the
Planning Department counter and on the County of Kauai website a list of
all completed applications for non-conforming use certificates. Applications
deemed completed shall concurrently be made available to the public. Copies
of applications shall also be made available to the public as public
information, as provided by Haw. Rev. Stat. Chapter 92F (the Uniform
Information Practices Act). Such list shall include the names of the
applicants and the tax map key number of the parcels which are the subject
of the applications. The Planning Department may physically inspect a
single-family transient vacation rental prior to a non-conforming use
certificate being issued.
(g) The Planning Director shall prepare an application form which
shall be available to the public. If an operator as defined under
Section 8-17.10(c) fails to apply for a nonconforming use certificate within
sixty (60) days of the effective date of this ordinance the Planning Director
shall assess an administrative late application processing fee of Fifteen
Hundred ($1,500.00) Dollars at filing. Applications received more than
one (1) year after the effective date of this ordinance shall not be accepted
and the use of a transient vacation rental shall be deemed discontinued.
(h) The owner or lessee who has obtained a nonconforming use
certificate under this section shall apply to renew the nonconforming use
certificate annually on the date of issuance of the non-conforming use
certificate.
(1) Each application to renew shall include proof that there is
a currently valid State of Hawaii general excise tax license and
transient accommodations tax license for the Nonconforming use.
3 ATTACHMENT No. 2
•
Failure to meet this condition will result in the automatic denial
of the application for renewal of the nonconforming use certificates.
(2) Upon renewal, the Planning Department may initiate re-
inspection of properties for compliance with other provisions of this
chapter, or other pertinent land use laws, and may withhold approval
of a renewal application and issue cease and desist notices to the
applicant until all violations have been resolved to the satisfaction of
the Planning Director. ,
(3) Applicant shall pay a renewal fee of One Hundred Fifty
Dollars ($150.00) which shall be deposited into the County
General Fund."
(Material to be deleted is bracketed. New material is underscored.)
4 ATTACHMENT No. 2
~~~ ~ ~ ~ ~ ~
(July 28, 2010)
FLOOR AMENDMENT
Bill No. 2318, Draft 3, Relating to Farm Worker Housing
INTRODUCED BY: Jay Furfaro
Amend Bill No. 2318, Draft 3 by amending Section 2 to read as follows:
"SECTION 2. Section 8-7.3, Kauai County Code 1987, as
amended, is hereby amended to read as follows:
Sec. 8-7.3 Uses And Structures That Require A Use Permit.
(a) The following uses and structures in agricultural districts shall require
a use permit:
(1) Animal hospitals
(2) Cemeteries
(3) Churches, temples and monasteries
(4) Commercial recreation
(5) Construction and worker temporary housing
(6) Development campgrounds
(7) Farm worker housing, unless the property has been designated
as important agricultural land pursuant to Chapter 205 of the Hawaii
Revised Statutes
(8) Golf courses
(9) Mineral extraction and quarries
(10) Pet keeping and raising proposed within five hundred (500) feet
of any Residential District
(11) Poultry and piggeries when to be located within three thousand
(3000) feet of any Use District
(12) Private and public utility facilities
(13) Schools and day care centers
(14) Transportation terminals
(15) Any other use or structure which the Planning Director finds to
be similar in nature to those listed in this Section and
appropriate to the District."
Amend Bill No. 2318, Draft 3 by amending Section 3 to read as follows:
-~~~i,SS~ "SECTION 3. Article 7 of Chapter 8, Kauai County Code, 1987, as
amended, is hereby amended by adding a new section to read as follows:
_ / Sec. 8-7.9 Special Standards For Issuance of Farm Worker Housing Use
V Permits.
(a) For the purposes of this Section, the following definitions shall apply:
1
ATTACHMENT No. 3
•
"Commercial Farm" means an operation or enterprise in operation for at least
one year whose owner has filed a Schedule F form with federal income tax filings
with the Internal Revenue Service. The core function of the commercial farm shall
be:
(1) the commercial cultivation of fruits, vegetables, flowers, foliage, crops for
bioenergy and forage (but excluding timber and turf farms); or
(2) the raising of livestock, including but not limited to, meat and dairy
cattle, pigs, goats, sheep, poultry, bees, fish, or other animal or aquatic life that are
propagated for commercial purposes (but excluding the husbandry of horses for
recreational or hobby purposes unless the farm complies with the guidelines set
forth in §RP-2-3(a)(1) of the County of Kaua`i's Department of Finance Real
Property Tax Division's Agricultural Dedication Program Rules).
"Exclusive residence" means the real property that is the person's only home
or residence. If the person has more than one home or residence, then the person
does not have an exclusive residence.
"Farm worker" is a farm owner, employee, contract worker or unpaid intern
in a program that qualifies under the Fair Labor Standards Act who works no less
than nineteen (19) hours per week in farm-related operations on a commercial farm.
For the purposes of farm worker housing, a commercial farm owner may qualify as
a farm worker only when he can demonstrate [that the proposed farm worker
housing will be the farm owner's exclusive residence and if the affected lot has been
subject to a condominium property regime (C.P.R.), that his respective C.P.R. unit
does not qualify for any allowable residential density] the following:
1) that the proposed farm worker housing will be the farm owner's
exclusive residence, and
2) that the affected lot has been subject to a condominium property
regime (CPR) and the respective C.P.R. unit does not qualify for any
allowable permanent density.
"Farm worker housing" means the use of a building or portion thereof
designed and used exclusively for the housing of farm workers who actively and
currently farm on the land upon which the housing is situated. Farm worker
housing may also be used to house the immediate family members of the respective
farm worker.
(b) The Director shall not deem an application for a farm worker housing
use permit complete unless the applicant can demonstrate that:
(1) the commercial farm has generated at least thirty five thousand dollars
($35,000.00) of gross sales of agricultural product(s) per year, for the preceding (2)
two consecutive years for each farm worker housing structure, as shown by State
general excise tax forms and Internal Revenue Service Schedule F forms;
z
ATTACHMENT No. 3
(2) the owner has dedicated the property upon which the farm worker
housing will be located (hereinafter the "subject property") to agricultural use
pursuant to Section 5A-9.1 of the Kauai County Code; and
(3) the owner or lessee of the subject property upon which the farm worker
housing is being proposed has provided a commercial farm plan with staffing needs
outlined to the Planning Department that demonstrates the feasibility of the
respective farm's commercial agricultural<.production.
(c) The owner of a condominium property regime or unit in a
condominium property regime may not apply for farm worker housing unless, as of
the effective date of this ordinance:
(1) the condominium property regime has received a final public report from
the Real Estate Commission of the State of Hawaii and
(2) the unit has been dedicated to agricultural use pursuant to Section 5A-9.1
of the Kauai County Code.
(d) No use permit for farm worker housing shall be approved unless:
(1) The application meets the use permit standards established under
Section 8-20.5 of the Kauai County Code;
(2) The Planning Commission finds that based upon the type of
agricultural activity, size of the commercial farm, and farming methodologies, the
applicant has demonstrated a clear and compelling need for farm worker housing
and the number and size of structures applied for; and
(3) The subject property's maximum residential densities, as
established in Section 8-7.5, have been permitted and constructed. If the applicant
can demonstrate that the subject property is a unit in a condominium property
regime (C.P.R.), and that the maximum allowable residential density for the
applicant's respective C.P.R. unit has been permitted and constructed, the Planning
Commission may waive the requirements of this provision.
(e) In addition to conditions of approval that the Planning Commission
may impose pursuant to Section 8-20.5(b), a use permit for farm worker housing
shall be subject to the following conditions:
(1) The farm worker housing shall be used exclusively for the
housing of farm workers and their immediate family;
(2) A maximum of three (3) farm worker housing structures may be
built on the property that is the subject of the permit. The total floor area of all
structures combined shall be limited to 1,800 square feet and no structure may
exceed 1,200 square feet of floor area. For the purposes of farm worker housing, the
total floor area shall mean the sum of the horizontal areas of each floor of a
building, measured from the interior faces of the exterior walls. The total floor area
shall include enclosed attached accessory structures such as garages or storage
areas, but it shall exclude unenclosed attached structures such as breezeways,
lanais, or porches;
3
ATTACHMENT No. 3
(3) The structures shall have post and pier foundations. No
concrete slabs shall be used in constructing the farm worker housing;
(4) The structures shall be located on a plot plan approved by the
Planning Commission; and
(5) The owner or lessee of the property shall not charge the farm
workers or their immediate family members for rent or electricity.
(fj The land upon which the farm worker housing is located shall not be
subdivided to create separate lots for the farm worker housing and the commercial
farm.
(g) The owner of farm worker housing shall annually certify to the
Director of Planning that the Farm Worker Housing meets requirements and
conditions set forth in Sections 8-7.9 (a) through (f).
(h) Prior to the issuance of the building permit, the applicant shall
demonstrate to the satisfaction of the Planning Director that the applicant has
recorded in the Bureau of Conveyances or the Land Court, as the case may be, the
requirements and conditions set forth in Sections 8-7.9 (a) through (g) respectively,
explicitly stating that the use permit does not run with the land but is personal to
the specific applicant, and that any subsequent owner must secure a separate use
permit for farm worker housing."
(Material to be deleted is bracketed. New material is underscored.)
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4 ATTACHMENT No. 3