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COUNCIL MEETING
August 11, 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, August 11, 2010 at 9:20 a.m., after which the following
members answered the call of the roll:
Honorable Tim Bynum
Honorable Dickie Chang
Honorable Jay Furfaro
Honorable Daryl W. Kaneshiro
Honorable Lani T. Kawahara
Honorable Derek S.K. Kawakami
Honorable Bill "Kaipo" Asing, Council Chair
Chair Asing: Can we have the first item please?
Mr. Nakamura: First item is the approval of the agenda.
APPROVAL OF AGENDA:
Mr. Chang: Move to approve.
Mr. Bynum: Second.
Mr. Chang moved for approval of the agenda as circulated, seconded by Mr. Bynum.
Chair Asing: Any discussion?
Mr. Bynum: Yes Mr. Chair.
Chair Asing: Yes go ahead.
Mr. Bynum: I would like to make a motion to place three (3) Ag
related Bills on the agenda for two (2) weeks from today. The Bills are ready to
circulate.
Ms. Kawahara: Second.
OTHER DISCUSSION:
Chair Asing: Um... let me see now. I believe that... I'm not sure
what bill you're making reference to?
COUNCIL MEETING ~ - 2 - August 11, 2010
Mr. Kaneshiro
What bill are you talking about?
Mr. Bynum: I'm making a motion to place three (3)... land use
related bills on the agenda two (2) weeks from today.
Mr. Kaneshiro: Could you identify the bill?
Chair Asing: Well you need to identify the bill.
Mr. Bynum: It's being circulated right now.
Mr. Kaneshiro: I have no knowledge of what you're trying to put on
the floor.
Ms. Kawahara: He's just putting it on the agenda in two (2) weeks.
Mr. Bynum: I'm just making a motion to place it on a future
agenda, as per our discussion last year.
Chair Asing: Um Councilmember Bynum, what we're doing
now... is to approve this agenda.
Mr. Kaneshiro: Correct.
Chair Asing: It has nothing to do with anything else, so you can
do it at the end of the agenda. So the approval is for THIS agenda, that's all we're
doing at this time and so if you want to make that motion, you can do that motion
when we get through with the, prior to the end of the meeting so it will be recorded
in the meeting.
Mr. Bynum: Okay so at the end of the meeting...
Ms. Kawahara: It's on...
Mr. Bynum: I can make that motion?
Chair Asing: Yes, yes...
Ms. Kawahara: I wouldn't withdraw... I'm not withdrawing my
second.
Mr. Bynum: Um... just we had a big discussion about this last
year and what the Council instructed me in essence that it would occur during...
that a motion like this would occur during the approval of the agenda so that's the
way I'm doing it. My recollection of that meetings in last year was that that was
the way the Council said there was a mechanism to place something on the agenda.
COUNCIL MEETING • - 3 -
.August 11, 2010
Chair Asing: Okay there's many items tied into that and so we
can have that discussion but let's have that discussion after we get through with
this agenda. So the motion is to approve THIS agenda, okay?
Ms. Kawahara: But...
Chair Asing: So can we... is there any?
Ms. Kawahara: Point of order.
Chair Asing: Yes? So we'll entertain...
Ms. Kawahara: I£..
Chair Asing: The motion after we get through with this agenda.
Okay?
Ms. Kawahara:
motion?
Chair Asing:
Ms. Kawahara:
Chair Asing:
have that placed at th
How do we take the motion off the floor, this
Yes so...
Because it's already been made and second.
Okay. Now would you like to remove that and then
e end of the agenda?
Mr. Bynum: If that's your choice Mr. Chair...
Chair Asing: Okay... good, thank you. With that then can we
have the second taken out so that we can have that at the end of the ,agenda?
Ms. Kawahara: Okay.
Chair Asing: Okay.
Ms. Kawahara: So that we have insurance that we're going to get it
at the end.
Chair Asing: Yeah it will be at the end of the agenda.
Mr. Kaneshiro: If I may Mr. Chair, I think we're totally out of
order... on the discussion because currently what we're approving is the agenda
that we have before us.
Chair Asing: And that's what I'm trying to say.
COUNCIL MEETING • - 4 - .August 11, 2010
Mr. Kaneshiro:
premature.
And to have any discussions previous to that... is
Chair Asing: And that's the reason I'm trying to do what I'm
trying to do which is take the second back, take the motion... and then we'll get
on...
Mr. Kaneshiro: I'm not even certain if the motion and the second
stands at this point when you're making a motion and a second on something that is
totally not part of this agenda. So I'm not certain we need the Attorneys up to
clarify.
Chair Asing: So... okay... yes go ahead Councilmember Bynum.
Mr. Bynum: Last year I proposed a Council rule change
regarding placement on the agenda, during that discussion the Council did not
support that... rule change.
Chair Asing: Councilmember Bynum? Let's hold on, I don't want
to stray from this. I am... don't make me not recognize that. We are on the agenda
item and let's continue with this at this point and then we can get to your doing the
item of wanting to get your agenda item on, okay we'll do it at the end of the
meeting. With that... we have an approval of the agenda... and did we have a
second for that...
Mr. Nakamura: We had a motion and a second.
Chair Asing: Thank you, with that any discussion? Yes go
ahead.
Mr. Furfaro: Yes Mr. Chair before the... for the matter of
clarification.
Chair Asing: Sure.
Mr. Furfaro: I will be supporting this move to get this on the
agenda. I do know that these are bills that had been looked at prior but I do want
to point out as Mr. Bynum suggested in two (2) weeks... in two (2) weeks in our
agenda we've got Lepeuli and. so forth and I'm wondering if there's any leeway if we
get this on right following that...
Mr. Bynum: Well...
Mr. Furfaro: Simply because it's going to be... these are very
important bills that we've discussed in the past but I think the issue with Lepeuli,
we're going to look for a presentation back from the State on the access and so forth,
it will be a long meeting that's all I'm saying.
COUNCIL MEETING • - 5 - .August 11, 2010
Mr. Bynum: I feel a double bind because I want to... the Chair is
Chairing the meeting, he's saying do this later, if I answer your question, I'm going
to engage in discussion further...
Chair Asing: Yeah.
Mr. Furfaro: Well just so you know, you have my support, I'm
just asking you to consider how busy that schedule is going to be on the 25th, that's
all. But you have my support...
Mr. Bynum: Well and what I'll say is that these bills would be
here for first reading and they'd be very short.
Chair Asing: So with that...
Ms. Kawahara: So before I withdraw...
Chair Asing: Yes go ahead.
Ms. Kawahara: My second, could you explain to me how we're going
to be able to put this on later in this agenda...
Chair Asing: Okay...
Ms. Kawahara: As we'll be able to make a motion...
Chair Asing: Well there will be...
Ms. Kawahara: Again.
Chair Asing: There will be discussion, there'll be a period for
discussion. And at that time we'll discuss it but not now.
ALFRED B. CASTILLO, CouNTY ATTORNEY: Council Chair maybe I can be of
assistance.
Chair Asing:
Yes go ahead.
There being no objections, the rules were suspended.
Mr. Castillo: I think basically what you are ruling which is
correct that maybe the motion at this time is out of order and what you like is to
determine the order and you are not saying that you will not entertain... what you
have stated is, that you will be entertaining this motion at the end of the agenda.
So I think what is being done is proper and your lead is proper at this point in time.
COUNCIL MEETING. - 6 - • August 11, 2010
The meeting was called back to order, and proceeded as follows:
Chair Asing: Thank you. With that we have a motion to and a
second to approve the agenda items, with that all those in favor say aye.
Councilmembers: Aye.
Chair Asing: Motion carried. Next item please.
The motion for approval of the agenda as circulated was then put, and unanimously
carried.
Ms. Kawahara: (I never withdrew it.)
Mr. Bynum: (That's okay.)
Mr. Nakamura: Next items are communications for receipt on page
one (1), for receipt is communications number...
Chair Asing: Peter?
Mr. Nakamura: 2010-210. Oh I'm sorry.
Chair Asing: Peter? The minutes?
Mr. Nakamura: We have approval of the minutes of the following
meetings of the Council.
MINUTES of the following meetings of the Council:
Council Meeting of July 14, 2010
Special Meeting of July 21, 2010
Mr. Furfaro moved for approval of the minutes as circulated, seconded by
Mr. Bynum, and unanimously carried.
Chair Asing:
Next item please.
Mr. Nakamura: For receipt on page one (1), we have communication
C 2010-210, C 2010-211 and C 2010-212.
COMMUNICATIONS:
C 2010-210 Communication (07/07/2010) from the Chief of Buildings,
Department of Public Works, transmitting for Council information, the Building
Permit Monthly Report for June 2010:
(1) Building Permit Processing Report
COUNCIL MEETING • - 7 -
.August 11, 2010
(2) Building Permit Estimated Value Summary
(3) Building Permits Tracking Report
(4) Building Permits Status
Mr. Chang moved to receive C 2010-210 for the record, seconded by Mr. Bynum, and
unanimously carried.
C 2010-211 Communication (7/15/2010) from the Director of Finance,
transmitting for Council information, the Period 11 Financial Reports-Statement of
Revenues as of May 31, 2010, pursuant to Section 17 and Section 20 of the
Operating Budget Ordinance (B-2009-690).
Mr. Chang moved to .receive C 2010-211 for the record, seconded by Mr. Bynum,
and unanimously carried.
C 2010-212 Communication (7/15/2010) from the Deputy County Engineer,
Department of Public Works, requesting Council approval of a traffic resolution to
establish a 20 mph speed limit restriction for the entire length of Kapa`ka Road,
Hanalei District.
Mr. Chang moved to receive C 2010-212 for the record, seconded by Mr. Bynum, and
unanimously carried.
Chair Asing: Any discussion?
Mr. Furfaro: Yes I have discussion.
Chair Asing: Yes go ahead Councilmember Furfaro.
Mr. Furfaro: I guess this is a past, this is a past habit of mine
Mr. Chair I just want to make sure that my colleagues recognize and maybe we
should send over a communication that the statement of revenues as it's reflected
for period eleven (11) which was the month of May, the State is lagging substantial
amount of money towards this account and perhaps we should get an update from
Finance. We are lagging almost six million dollars through the end of the year
based on our budget. The State should have paid us a share of TAT equal to eleven
point two million in our forecast and they are to date at five point one million. So
I'd like to send a communication over just to get some clarification on the timing of
this as this reflects the State is maybe ninety (90) days behind of their payment
schedule and we're trying to close the books.
Chair Asing: Thank you. Councilmember Bynum.
Mr. Bynum: Yeah regarding this communication.211 also just to
note that this is the eleven (11), period eleven (11) in a twelve (12) year period and
the statement next month will be our year end statement and will give us a sense of
our revenues and expenditures for the year and we'll probably would like to have
some discussion at that time regarding the year and the statement.
COUNCIL MEETING • - 8 - • August 11, 2010
Mr. Furfaro: Well I would like to just send over a communication
so we can close a month and we are current on the revenues due us and the eleven
(11) period for everybody is May 2010 so. Thank you Mr. Chair for that.
Chair Asing:
those in favor say aye.
Councilmembers:
Chair Asing:
Mr. Nakamura:
communications for rece
Thank you. Any further discussion? If not, all
Aye.
Motion carried. Next item please.
On page two (2) of the Council's agenda, further
ipt we have communication C 2010-213 and C 2010-214.
C 2010-213 Communication (7/30/2010) from the Mayor, requesting Council
consideration and confirmation of the following appointees to the various Boards
and Commissions for the County of Kauai:
• Josephine Ann Sokei -Liquor Control Commission
• Dane K. Oda -Liquor Control Commission
• Michael Chavez Machado -Salary Commission
Mr. Kaneshiro moved to receive C 2010-213 for the record, seconded by Mr. Chang,
and unanimously carried.
C 2010-214 Statement of Condition of the County Treasury as of May 7, 2010.
Mr. Kaneshiro moved to receive C 2010-214 for the record, seconded by Mr. Chang.
Chair Asing: Any discussion?
Mr. Furfaro: Yes.
Chair Asing: Councilmember Furfaro.
Mr. Furfaro: Thank you Mr. Chair. I would also like to send
over a communication regarding item 214, State of Condition of the Treasury, it is
in your attachment but I would just like to get written confirmation that as of the
May 17 statement, the county has received the moneys we approved in our bond
which shows an increase in our investment accounts, substantial amount, I'd just
like to get that confirmed, if we can send a communication.
Chair Asing: Thank you. Any further discussion? If not, all
those in favor say aye?
Councilmembers: Aye.
Chair Asing: Opposed say no. Motion carried, next item please.
I
COUNCIL MEETING • - 9 - August 11, 2010
The motion to receive C 2010-214 for the record was then put, and unanimously
carried.
Mr. Nakamura: Next matters are items for approval. First item for
approval is communication C 2010-215.
C 2010-215 Communication (7/09/2010) from the Chief of Building Division,
Department of Public Works, requesting Council approval to purchase personal
protection equipment, a computer and office furniture for a contract hire project
manager using funds from the Kapa`a Base Yard Structural Renovation CIP
Budget. The approximate cost is $4,000.00: Mr. Bynum moved to approve C 2010-
215, seconded by Mr. Bynum, and unanimously carried.
Chair Asing: Next matter please.
Mr. Nakamura: Next matter for approval is communication C 2010-
216.
C 2010-216 Communication (7/30/2010) from the Director of Finance,
requesting Council approval to enter into amulti-year service agreement (five years
beginning November 1, 2010 (insurance renewal date) subject to appropriation and
availability of funds in each succeeding fiscal year period) with an experienced and
qualified Insurance Broker licensed in the State of Hawaii, to procure insurance
coverage for County properties, excess general liability, automobile liability, excess
worker's compensation, aircraft liability and crime, and to also serve as a consultant
to the County's insurance and risk management programs: Mr. Furfaro moved to
approve C 2010-216, seconded by Mr. Chang.
Chair Asing: Any discussion?
Mr. Furfaro: Yes.
Chair Asing: Yes Councilmember Furfaro.
Mr. Furfaro: I just wanted to point out we should probably look
at... move with some urgency on this particular matter and I believe as I look at
this general liability we are also anticipating the aircraft liability as it relates to our
acquisition on the helicopter but I think there's some urgency here on securing the
new policy.
Chair Asing: Thank you. Any further discussion? If not, all
those in favor say aye.
Councilmembers: Aye.
Chair Asing: Oppose say no? Motion carried. Next item please.
COUNCIL MEETING ~ - 10 - August 11, 2010
The motion to approve C 2010-216 was then put, and unanimously carried.
Mr. Nakamura: Next matter for approval are three (3) legal
documents attached to communication C 2010-217.
LEGAL DOCUMENTS:
C 2010-217 Communication from the Mayor recommending Council approval
of three (3) legal documents resulting from the KD Waipouli Subdivision (5-2007-
04, Kevin Showe/KD Waipouli, LLC) consolidation of Lots 1034, 1035 and 1036, as
shown on map and resubdivision of said consolidation into Lots 1043 to 1266,
Inclusive, Deletion of Easement 292, as shown on map and Designation of
Easements 294 to 350, Inclusive, at Lihu`e, Puna, Kauai, Hawaii. (S-2007-04,
Kevin Showe/KD Waipouli, LLC.)
1) DEDICATION DEED, by KD Waipouli LLC, conveying a roadway lot
(TMK (4) 4-3-001:014 (por.); Lot 17-D-3), Papaloa Tract, South Olohena,
Kawaihau, Kauai, Hawaii to the County of Kauai for road widening
improvements.
2) DEDICATION DEED, by KD Waipouli LLC, conveying a roadway lot
(TMK (4) 4-3-001:014 (por.); Lot 17-D-4), Papaloa Tract, South Olohena,
Kawaihau, Kauai, Hawaii to the County of Kauai for road widening
improvements.
3) GRANT OF PEDESTRIAN, VEHICULAR AND PARKING EASEMENT
by KD Waipouli LLC conveying Easement P-1, TMK (4) 4-3-001:014 (por.),
Papaloa Tract, South Olohena, Kawaihau, Kauai, Hawaii to the County of
Kauai.
Mr. Chang moved to approve C 2010-217, seconded by Mr. Kaneshiro, and
unanimously carried.
Chair Asing: Next item please.
Mr. Nakamura: On page three (3) of the Council's agenda, second
legal document for approval which is attached to a communication from the
directors of... Director of Parks and Recreation transmitting for Council's approval.
C 2010-218 Communication (7/27/2010) from the Director of Parks and
Recreation, transmitting for Council approval the County of Kauai Adopt-A-Park
Agreement with Hui Malama O Kaneiolouma relating to the stewardship of a
Native Hawaiian cultural site on real property identified as TMK (4) 2-8-17:13, 14,
23 & 24, which is 11.04 acres of land situated in the Koloa District, Kauai.
• County of Kauai Adopt-A-Park Agreement for the Stewardship of
Kaneiolouma Heiau Complex, Po`ipu Beach Mauka Preserve, TMK: 2-8-
17:13, 14, 23 & 24
Mr. Furfaro moved to approve C 2010-218, seconded by Mr. Kaneshiro.
COUNCIL MEETING • - 11 - .August 11, 2010
Chair Asing: I believe we have some people here, is there anyone
in the audience who wants to speak on this item?
There being no objections, the rules were suspended.
Good morning.
TESSIE KINNAMAN: Good morning, aloha Councilmembers.
Mr. Furfaro: Aloha, good morning.
Ms. Kinnaman: Tessie Kinnaman for the record. I'd just like to
give you a brief history of the...
Chair Asing: Ah before you start, let me just say that both of you
are directors and I just want to thank you for coming and just to let the public know
that both of you are both directors of the group, thank you.
Ms. Kinnaman: Thank you. In 1950 Hector Moir, Koloa Plantation
Manager, my name again is Tessie Kinnaman.
CHERYL LOVELL-OBATAKE: And I'm Cheryl Lovell-Obatake.
Ms. Kinnaman: So the brief historical overview is in the 1950
Hector Moir and I'd like to do a following quote that he wrote and report for the
Kauai Historical Society November 20, 1950 regarding the Kaneiolouma Heiau at
Waiohai. To the left of the crossways a low area about... sorry... about a hundred
feet and over... hundred feet wide and over two hundred feet long. There is a line of
limestones running from the Southeast to the Northwest a hundred feet from the
cross way. About fifteen feet beyond of the line of stones are the entrances to large
embankments which (inaudible) have been fishponds. The South pond is about
eighty (80) feet by ninety-six (96) feet separated from the North pond which is
seventy (70) by ninety (90) feet to a two (2) foot raised bank, fifteen (15) feet wide.
To the right of the cross way is a wet oval shaped area about ninety (90) feet by two
hundred (200) feet and along the North and the East edge of the oval is a wall about
six (6) feet high. Nearly one hundred feet from the left end of this wall and ten (10)
feet out from it is a spring about ten (10) feet in diameter edged with a three (3) foot
(inaudible) of flat rocks. This is the spring of Waiohai, despite the present dry spell
we have blithely the water in the spring is clearly, fairly clear and the reason grass
around the edge is lush and green. Judging by the comparisons of other heiaus, this
would have appeared to have been a very powerful and ancient place of worship
dedicated to kane. And Henry Kekahuna in nineteen (19)... in the 40s and 50s was
a gifted surveyor with more than sixty-eight (68) heiau to his credit and a kahuna of
note. He was commissioned by the Kauai Historical Society to survey and map two
(2) ancient heiau on county property, one (1) in Ha`ena which is the Kauluapaoa
heiau and the Kaneiolouma heiau. He also wrote extensively on the preservation of
COUNCIL MEETING • - 12 - .August 11, 2010
the Hawaiian culture in particularly the preservation of Kaneiolouma heiau
complex and he was aided by (inaudible) noted Hawaiians called scholar. And I'd
like to quote Henry Kekahuna, he wrote the heiau was a principle medium of which
all religious activities were manifested and was there for the most important
representative of religion collectively in ancient Hawaii. Such was a fundamental
purpose of the Hawaiians. All principle activities of their lives were necessarily
parts whole, that whole being perfected in and through the heiau. Not merrily was
the heiau a place of worship in the lives of the people, it also functioned as a power
house of all spiritual life, human and non-human. And this speech was delivered by
Henry Kekahuna to the Kauai Historical Society in the 1957. And in 1959
Kekahuna wrote a genuinely authentic Hawaiian village for Kauai in which he
specifically outlines in detail how to create a authentic Hawaiian atmosphere in
Kaneiolouma.
(3 minutes Mr. Chair)
Chair Asing: Okay, go ahead continue.
Ms. Kinnaman: And I quote the island of Kauai should receive the
honor of being the very first to produce the only true Hawaiian village of ancient
character. It is planned that someday the sizable track in Waiohai Po`ipu, Koloa,
Kauai that contains the remnants of the heiau or ancient temple of Kaneiolouma
especially dedicated to the tournaments of sports and combat and also to the
replenishment of vegetable, food, ooluai and fish, ooluia should be made a State
park. Let this great work begin at Kaneiolouma and the big heiau mentioned
extends well inland poses a fishpond that... fishpond side again might serve as an
ancient purpose and contain (inaudible) of a large and powerful heiau that centuries
ago was (inaudible) with great spiritual power, the mana. Mahalo.
Chair Asing: Thank you.
Ms. Lovell-Obatake: Aloha and good morning. Cheryl Lovell-Obatake of
Hui Malama O Kaneiolouma; Rupert Rowe could not be here today along with Billy
Kaholeilaulii, Randy Wichman, Kane Turalde, John Stem and John Star due to
their attendance of a cultural event on the island of Hawaii. Hui Malama O
Kaneiolouma would like to extend our appreciation to the Administration, Director
of Parks and Recreation, and the Kauai County Council for your favorable
endorsement and we'd like to thank George Costa and Mauna Kea Trask for the
documentation and with the Attorney's Office. And we thank you for the
agreement, your favorable endorsement for this agreement for the stewardship of
Kaneiolouma Heiau Complex at Po`ipu, mahalo.
Chair Asing: Thank you. Any questions Councilmembers?
Councilmember Bynum.
Mr. Bynum: You answered my first question as what... Rupert
and Uncle Billy weren't here so... I just wanted to take an opportunity to thank all
COUNCIL MEETING ~ - 13 - .August 11, 2010
of you for your stewardship and this is a historic day you know, that the County has
cooperated, I want to thank the Administration and the County. Attorney's Office for
making this happen. Especially for my opportunity to visit Kaneiolouma site you
know many places on Kauai the culture really comes alive but I've never felt more
mana than I did visiting that site, you can just see... you know you can almost feel
what the... the cultural activities and the spiritual activities that occurred there.
It's this gem right in the middle of Koloa that most people have no idea, it just a
real chicken skin experience to go there and so I'm just thrilled and please convey
that to Uncle Billy and Rupert and the rest of the group.
Chair Asing: Thank you. Any other? Councilmember Furfaro.
Mr. Furfaro: Yes. Thank you. Ladies thank you very much for
being here today, I think this heiau and (inaudible) site absolutely represents a spot
that is wahipana and very special and has very great meaning for our host culture.
I would think it's also appropriate to also acknowledge the late Mayor Baptiste who
also worked very closely with your group to promote this effort with stewardship for
the heiau. I too would also like to recognize Mayor Carvalho and George Costa, as
well as Mauna Kea Trask from our legal department for working so closely with you
on this project that has a great cultural history and thank you for being here today.
Thank you Mr. Chair.
Chair Asing: Thank you. Any others? Anyone else?
Councilmember Chang.
Mr. Chang: Thank you. I just wanted to thank you for coming
and also give our aloha out to the staff that's there on the Big Island but you know I
think it also gives a lot of education to the other island pacific islanders, I know we
has a little pilikia at one time and we had to gather the hooponopono to show the
significance of that heiau and why it was important to preserve every part of it so,
we want to thank you folks for just making sure and making a lot of awareness to
the community and I think a lot of people know how sacred that area is and
although people pass that by the hundreds you know thousands a day, people don't
know it sits right there peacefully but there's a lot of significance so thank you for
creating that awareness... very much so... mahalo.
Chair Asing: Thank you. Any other comments, questions
Councilmembers? If not, thank you very much. I'd like to... is there anyone else
who wants to speak on this item? JoAnn.
JOANN A. YUKIMURA: Chair Asing and members of the Council, JoAnn
Yukimura for the record... I too just want to celebrate this day because it is a really
remarkable achievement and I do want to acknowledge the Mayor and George
Costa and Lenny Rapozo and this Attorney... I do remember myself visiting with
Rupert and Billy years ago and their vision to see their vision actually come true
with the cooperation of government is a day of really great thanksgiving. So thank
you to everyone who made this happen and especially to the citizens who worked on
COUNCIL MEETING. - 14 - ~ August 11, 2010
this tirelessly and who will now have a lot of work to do as well. It is a peaceful site
but there's also been vandalism and issues so to have a strategy for really taking
care and you know malamaing the site is a wonderful thing, mahalo.
Chair Asing: Thank you. Is there anyone else? Lenny.
LENNY RAPOZO, DIRECTOR OF PARKS AND RECREATION: For the record
Director of Parks and Recreation Lenny Rapozo. Is there any questions that the
Council may have for me regarding the agreement with Kaneiolouma?
Chair Asing: Councilmembers any questions? If not, Lenny a
broad overview from your standpoint would be good for both the audience that is
watching on tv and Councilmembers.
Mr. Rapozo: When we were first... when I was first introduced
to Kaneiolouma, it's been over a year now and it is an amazing jewel or treasure
that the island has that I never knew existed and I've lived here all my life. And in
working with this group, this group has been together from what they tell me for
over twelve (12) years and they kind of slowly worked at it and now it's to the point
where they needed our help to hopefully bring this jewel of the island to the next
level. I think it be a benefit not only for the island but the culture that we both
grew up in, the people and eventually those who be able to visit and enjoy the
history of that area and of our island.
Chair Asing: Thank you. Councilmember Bynum.
Mr. Bynum: I just agree with everything you just said and
appreciate the Administration very much working with this group. My question
is... I know there's concerns about the security of this site and there not further
degradation of you know, of this gem... is... do you anticipate there will be need of
county resources to make sure the site is secure and...
Mr. Rapozo: In early part when we worked with the group there
was concern of people removing some of the rocks there for stones walls and
everything but in working with the group and in working with those that were
trying to take some of the stuff.. that has ceased so right now there is no urge or
real need to put up a fence as they had asked at one time. They feel comfortable
that we're okay for now but so yeah... so I would think later on down the road we
may need some county resources to put in but at this time, we haven't gotten to that
point yet.
Mr. Bynum: So the increase, I know we all have an increased
awareness of this whole site...
Mr. Rapozo: Yes.
COUNCIL MEETING
Mr. Bynum:
kind of stewardship.
- 15 - August 11, 2010
And I assume that includes law enforcement and
Mr. Rapozo: Yes. We did apply and I think we're in a process of
working to get a grant to try do a master plan for that area. So that's coming up
once we secure this document, we will be able to work with them... work with that
area.
Mr. Bynum: Thank you so much. I know you were present at
one of the site visits I made and I know you felt the same way... is like wow look at
this... amazing.
Chair Asing: Thank you. Anything else Councilmembers?
Councilmember Furfaro.
Mr. Furfaro: Yes. Thank you. Mr. Rapozo and maybe
Maunakea as well, at one time when we were pursuing this there was some
possibility that we may be requested to help with some fencing and so forth, I think
we got an early estimate of about fifty-five thousand dollars ($55,000.00) to secure
that park site and you know if we need to do that for, the reasons you mentioned
you know the cost of any materials and so forth... you will keep us posted and
obviously I guess it will be reflected in some future budget?
Mr. Rapozo: Yes.
Mr. Furfaro: Am I correct?
Mr. Rapozo: Yes.
Mr. Furfaro: It would be somewhere in the CIP piece?
Mr. Rapozo: Yes. Yes.
Mr. Furfaro: And then perhaps this. question is for Maunakea,
could you just touch on the terms of the stewardship agreement within the Parks.
Is it a ten (10) year period with our ability to revisit it and renew it, what are the
legal mechanics of that?
Mr. Rapozo: It's a ten (10) year with renewal.
Mr. Furfaro: With renewal.
Mr. Rapozo: With renewal.
Mr. Furfaro: Okay.
COUNCIL MEETING - 16 - ~ August 11, 2010
Mr. Rapozo:
DLNR.
Mr. Furfaro:
Yes. Um we modeled it from a template from
Okay.
Mr. Rapozo: That they do for these types of projects. While the
Hui will engage in a stewardship activities, the Parks Department will maintain
the ownership and management, review and the jurisdiction so that the county does
not lose control of the parcel. Our staff will oversee the operations and activities of
the stewards for the compliance of the agreement and the Hui will perform all these
duties and responsibilities without pay. The Hui has also agreed to indemnify
(inaudible) the county if any liabilities will arise and the Hui has also agreed to
acquire the appropriate insurance coverage policy with whatever the minimums are
set forth what we normally require as a county. And they will support any
endeavors through grant writing and fundraising and the county has also agreed to
make itself available to the stewards, to assist in their grant writing and the large
clearing of projects and also with some of the herbicides. We will be asking them
not to displace any of the rocks by pulling out stuff like that.
Mr. Furfaro: Lenny, I want to let you know over the last couple
of years I was through meetings with Rupert and Billy, I was quite aware of that
but I wanted to have the opportunity for this information be shared with the
community.
Mr. Rapozo: Sure.
Mr. Furfaro: On the terms and the renewal and the effort on
their part including this potential co-insurance of the county for liability. Just to
reassure that this group has worked diligently to make this happen and along with
your support and the County Division Heads that you know I'm very proud of the
work you've done but I wanted to make sure that the community had an
opportunity to know how meticulous all these details were and again my
congratulations to the Parks Department and to the success of the Hui.
Mr. Rapozo: I think we all share that success and Maunakea is
very good in helping us develop a...
Mr. Furfaro: Actually before you walked in, I gave him praise.
Mr. Rapozo: Oh.
Mr. Furfaro: If you want to do it a second time, go right ahead.
He's done a fine job. Mr. Chair thank you very much and thank you again Lenny
and Maunakea.
Chair Asing: (inaudible)
COUNCIL MEETING •
BC:
Chair Asing:
Councilmember Chang.
- 17 - .August 11, 2010
Check your mic.
I'm sorry. Anything else Councilmembers?
Mr. Chang: Thank you Chair. I just wanted to say a little bit
earlier I had mentioned that there was a little pilikia and I understand that there
was leaders of various pacific islander groups, sometimes one culture doesn't
understand the (inaudible) culture so I just hope being that it is a historic day that
the Hui can let everyone know that this is a... you know... this is a great, great
thing for the island of Kauai so we might want to just revisit our friends within the
community to say this is kapu, it needs to be respected, it needs to be taken care of
and I think if we community that way everybody's understanding the true
significance of this area. Thank you.
Mr. Rapozo: Some of those stuffs had happened that's why the
fence is no longer needed there.
Chair Asing: Thank you. Anyone else? If not, thank you very
much Lenny. I'd like to call the meeting back to order and before I take the vote,
there is a motion to approve and a second. What I'd like to do is I'd like to have the
Clerk read the introduction and I... all Councilmembers I believe were given this
booklet on the complex itself but I'd like to have the County Clerk read the
introduction portion because it describes the project and the importance of the
cultural heritage and history of the project itself and what it contains so I'd like-the
Clerk to read the introduction page. With that, Mr. Clerk can you read the
introduction page please?
There being no one else to speak on this matter, the meeting was called back to
order, and proceeded as follows:
Mr. Nakamura: The Kaneiolouma Heiau complex is considered
sacred to the Hawaiian culture and an important historic landmark to the residents
of Kauai. Currently under the jurisdiction of the County of Kauai and known as
the Po`ipu Beach Park Mauka Preserve, the stewardship group Hui Malama O
Kaneiolouma is proposing to clear, maintain, and rehabilitate this complex as a
public cultural preserve.
It is fortunate that this unique complex has been studied by eminent scholars
for more than a century. They have provided us with detailed maps and
descriptions creating a body of work that outlines a scientific and cultural
methodology. Prominent among these is Henry Kekahuna who wrote and
campaigned extensively for the preservation of the Kaneiolouma Heiau complex.
There are three (3) components to this complex: religion, agriculture and
aquaculture (fish ponds). This site also contains the sacred spring of Waiohai. The
amount of monumental Hawaiian architecture represented here has the potential of
yielding important information regarding ancient temple religion, agriculture and
fishpond management. Extensive walled enclosures, alters, numerous bases for
COUNCIL MEETING. - 18 - .August 11, 2010
temple images, shrines, taro patches, irrigation ditches, a series of large fishponds,
house platforms, extensive cooking areas, and terracing throughout make this
complex ideal for rehabilitation.
The County of Kauai Po`ipu Beach Park has consistently been recognized as
one of our Nation's most beautiful beaches. The Kaneiolouma Heiau complex is a
component of Po`ipu Beach Park and by preserving and enhancing both elements,
the County of Kauai is enriching its world class destination. Yet, perhaps more
important to us as an island, is a sense of pride that our unique cultural heritage is
preserved in perpetuity.
Chair Asing: With that, I also want to extend my mahalo to
everyone who participated in this and we can look forward to a great project and a
complex that we all can be proud o£ So with that, all those in favor say aye.
Councilmembers: Aye.
Chair Asing: Motion carried. With that, thank you. Can we
have the next item please?
The motion to approve C 2010-128 was then put, and unanimously carried.
Mr. Nakamura: Next matters are claims. Communication C 2010-
219.
CLAIMS:
C 2010-219 Communication (7/19/2010) from the County Clerk, transmitting
a claim filed against the County of Kauai by Nathan Wood for damage to personal
property, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro
moved to refer C 2010-219 to the County Attorney's Office for disposition and/or
report back to the Council, seconded by Mr. Kaneshiro, and unanimously carried.
C 2010-220 Communication (7/26/2010) from the County Clerk, transmitting
a claim filed against the County of Kauai by Julie A. Ugalde for State of
Hawai`i/DAGS/RMO for property damage, pursuant to Section 23.06, Charter of the
County of Kauai: Mr. Furfaro moved to refer C 2010-220 to the County Attorney's
Office for disposition and/or report back to the Council, seconded by Mr. Kaneshiro,
and unanimously carried.
C 2010-221 Communication (7/27/2010) from the County Clerk, transmitting
a claim filed against the County of Kauai by The estate of Steven Ho Song,
deceased, Cathy Song, Brian Song, and Arnold Song, for mental and/or physical
injury, medical and related expenses, loss of earning capacity and/or earnings, loss
of enjoyment of life, funeral and burial expenses and other damages, pursuant to
Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2010-
221 to the County Attorney's Office for disposition and/or report back to the Council,
seconded by Mr. Kaneshiro, and unanimously carried.
COUNCIL MEETING. - 19 - .August 11, 2010
Chair Asing:
Next item please.
Mr. Nakamura: Next matter for approval is a Committee Report
from your Committee on Planning, Committee Report CR-PL 2010-14.
COMMITTEE REPORT:
PLANNING COMMITTEE REPORT:
A report (No. CR-PL 2010-14) submitted by the Planning Committee,
recommending that the following be approved as amended on seconded and final
reading:
"Bill No. 2361 - A BILL FOR AN ORDINANCE AMENDING
CONDITION NO. 19 OF ORDINANCE NO. PM-2004-370 RELATED TO
THE KUKUI`ULA WORKFORCE HOUSING,"
Mr. Kaneshiro moved for approval of the report, seconded by Mr. Furfaro, and
unanimously carried. (See later for Bill No. 2361.)
Chair Asing: Next item please.
Mr. Nakamura: Next matter for approval are Resolutions. First
Resolution is Resolution No. 2010-44.
RESOLUTIONS:
Resolution No. 2010-44, RESOLUTION ESTABLISHING A SPEED LIMIT
RESTRICTION FOR KAPAKA ROAD, HANALEI DISTRICT, COUNTY OF
KAUAI: Mr. Chang moved to adopt Resolution No. 2010-44, seconded by .Mr.
Kaneshiro, and carried by the following vote:
FOR ADOPTION:
AGAINST ADOPTION:
EXCUSED & NOT VOTING
Chair Asing:
Mr. Nakamura:
2010-45.
Bynum, Chang, Furfaro, Kaneshiro
Kawahara, Kawakami, Asing TOTAL - 7,
None TOTAL - 0,
None TOTAL - 0.
Thank you, next item please.
Next Resolution for approval is Resolution No.
Mr. Kawakami was noted recused for the next two (2) items and will not be voting.
COUNCIL MEETING • - 20 - • August 11, 2010
Resolution No. 2010-45, RESOLUTION CONFIRMING MAYORAL
APPOINTMENT TO THE LIQUOR CONTROL COMMISSION (Josephine Ann
Sokei, term ending 12/31/2012): Mr. Furfaro moved to adopt Resolution No. 2010-
45, seconded by Ms. Kawahara, and carried by the following vote:
FOR ADOPTION:
AGAINST ADOPTION:
EXCUSED & NOT VOTING
RECUSED:
Chair Asing:
Mr. Nakamura:
2010-46.
Bynum, Chang, Furfaro, Kaneshiro
Kawahara, Asing TOTAL - 6,
None TOTAL - 0,
None TOTAL - 0,
Kawakami TOTAL - 1.
Thank you, next item please.
Next Resolution for approval is Resolution No.
Resolution No. 2010-46, RESOLUTION CONFIRMING MAYORAL
APPOINTMENT TO THE LIQUOR CONTROL COMMISSION (Dane K. Oda, term
ending 12/31/2010): Mr. Furfaro moved to adopt Resolution No. 2010-46, seconded
by Mr. Bynum, and carried by the following vote:
FOR ADOPTION:
AGAINST ADOPTION:
EXCUSED & NOT VOTING:
RECUSED:
Chair Asing:
Mr. Nakamura:
2010-57.
Bynum, Chang, Furfaro, Kaneshiro
Kawahara, Asing TOTAL - 6,
None TOTAL - 0,
None TOTAL - 0,
Kawakami TOTAL - 1.
Thank you, next item please.
Last Resolution for approval is Resolution No.
Resolution No. 2010-47, RESOLUTION CONFIRMING MAYORAL
APPOINTEMENT TO THE SALARY COMMISSION (Michael Chavez Machado,
term ending 12/31/2012): Mr. Furfaro moved to adopt Resolution No. 2010-47,
seconded by Ms. Kawahara, and carried by the following vote:
FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro
Kawahara, Kawakami, Asing TOTAL - 7,
AGAINST ADOPTION: None TOTAL - 0,
EXCUSED & NOT VOTING: None TOTAL - 0.
Chair Asing: Thank you. Before we take the next item, we're
going to take the caption break now. Thank you.
There being no objections, the Council recessed at 10:03 a.m.
COUNCIL MEETING • - 21 - ~ .August 11, 2010
The Council reconvened at 10:29.a.m., .and proceeded as follows:
Chair Asing: Meeting is now called back to order, next item
please.
Mr. Nakamura: We're on page four (4) of the Council's agenda on
bills for second reading. Bill for second reading is Bill No. 2361, Draft 1.
BILLS FOR SECOND READING:
Bill No. 2361, Draft 1 - A BILL FOR AN ORDINANCE AMENDING
CONDITION NO. 19 OF ORDINANCE NO. PM-2004-370 RELATED TO THE
KUKUI`ULA WORKFORCE HOUSING
Chair Asing:, Thank you. With that can we have the motion?
Mr. Kaneshiro: Motion to approve.
Mr. Furfaro: Second.
Mr. Kaneshiro moved for adoption of Bill No. 2361, Draft 1, on second and final
reading, and that it be transmitted to the Mayor for his approval, seconded by Mr.
Furfaro.
Chair Asing: Before we have discussion I'd like to open it up to
the public first, is there any in the public who would like to speak on this item?
JoAnn.
The being no objections, the rules were suspended.
Ms. Yukimura: Chair Asing, members of the Council good morning
JoAnn Yukimura for the record. Last night... good morning... last night after my
paina I decided to go to bed instead of working on a presentation on this issue. I
wanted to do a presentation ala Chair Asing especially, because I know that your
and the Housing Agency reluctance to press for permanent affordability is because
you can't see how it would work. The difference between a leader and a follower
however is that a follower acquiesces to seen obstacles and a leader doesn't leave a
stone unturned to achieve their goal and if our goal is long term affordability so that
we get the greatest good for our people and that is the most housing possible for the
most families, then we need to not leave a stone unturned to do that. And so my
request today is that you defer the matter for at least two (2) weeks so that you can
ask the Administration, the Housing Agency to give you an analysis of the
alternatives to the present provision which is you know, a ninety (90) year buyback
on land in the Po`ipu-Koloa area for workforce housing. And why I'm asking for a
deferral because if you make the decision today to accept the amendments that
Kukui`ula has proposed, it's a permanent, permanent decision of huge consequences
that you cannot call back. And by... if you don't defer you're throwing away an
COUNCIL MEETING • - 22 - .August 11, 2010
opportunity to explore a creative approach to achieving a goal that you and I and all
of the community wants. So a two (2) week deferral is nothing in the, in the... ten
(10), twenty (20), thirty (30) year view plain of what our responsibilities are for
providing housing for our people. Just two (2) weeks so that you can explore, if after
two (2) weeks you're still convinced that nothing will work, then you can go ahead
and move on this. Now I wanted to... oh I see... so I'm asking you to don't make
this happen unless you are sure, sure, sure... that this is the best for the county and
at minimum a request to the Housing Agency to come back with an analysis of the
alternatives. And one (1) of the alternatives suggest it but I have never seen any
discussion of it is that Kukui`ula will give land with infrastructure offset
infrastructure. And that would relieve the developer of a tremendous financial
obligation.
Mr. Nakamura: Three (3) minutes Mr. Chair.
Chair Asing: Okay, go ahead.
Ms. Yukimura: Thank you, I'm almost done... but it will also give
the county control and yes there are problems... okay if the county's going to do it,
there's still problems with buyback or leasehold, true. But someone from the public
just asked me to look at what is the possibility of rental at workforce housing levels?
You know like a Kalepa but at workforce housing levels, that forever would be
available to our workforce in the Po`ipu-Koloa area. So you know the for sale or the
development cost I heard the figure never on the record which you should get and
you should do your due diligence and get it on the record of twenty (20) to twenty-
five million (25,000,000) to... for the Housing Agency through maybe anon-profit
developer to develop seventy-five (75) units on that land if Kukui`ula gives you land
and infrastructure. We have spent more than that at Kalepa probably I think to
provide those... I don't know how many units total we have there now... hundred
forty (140) and we'll be~ less than that because the rents will pay more than the
Kalepa rents, so what about that alternative? And let's look at that, that's
something that will ensure that housing will be permanently affordable for the
workforce. And you more than me have eloquently said how important it is to have
workforce housing in that area. If you make it just a place of poor you know...
which is more our Paanau area and very, very rich which is Kukui`ula, that's not a
balanced community, you really need those middle incomes. So let's work on those
alternative, two (2) weeks at least or four (4), I don't know what it will take for
Housing to come back and you to have a dialog about this but let's have it and let's
see what the alternatives are, please don't go for this alternative without knowing
what the other alternatives are. Thank you very much.
Chair Asing: Thank you. Councilmembers any questions?
Councilmember...
Ms. Yukimura: It's okay.
COUNCIL MEETING • - 23 - .August 11, 2010
Chair Asing:
it's difficult.
I keep on making referece to Councilmember... boy
Ms. Yukimura: No actually I think you do have a... whatever title
you leave off, you keep... you know like Mayor... I mean Governor Ariyoshi, he's
still Governor Ariyoshi. So it's okay.
Chair Asing: It's a little difficult...
Ms. Yukimura: JoAnn's fine.
Chair Asing: Anyway just a comment... you know this issue that
you're raising has been in my opinion twenty-eight (28) year issue. And the reason
I say that is my experience on the Council has gone that... that far back and it is
still a debatable issue and it's not easy but one (1) of the issues on the affordability
area is rental. You know as if you... you either sell the property or you rent the
property so the long term affordability from the County Housing Agency at one time
was to take care of that area, rental is the method and not for sale so... that's how
it's addressed on the long term affordability, you do rental. That's what you do...
Ms. Yukimura:
Chair Asing:
Ms. Yukimura:
Chair Asing:
Well if...
And not for sale.
If you can get the greatest.
So.
Ms. Yukimura: Good that way because you must consider people
renting now will be able to rent with no more than thirty percent (30%) of their
income. That's our definition of affordable rental. How much discretionary income
then they have for other things that they need in their families and to have that
available especially during the time of hot economy where people have been paying
two thousand (2,000), twenty-five hundred dollars ($2,500.00) rent:..
Chair Asing: Okay.
Ms. Yukimura: You know, for a three (3) bedroom.
Chair Asing: Thank you JoAnn.
Ms. Yukimura: You're protecting them against that.
Chair Asing: Any other questions? If not, thank you.
Ms. Yukimura: Thank you.
COUNCIL MEETING. - 24 - • August 11, 2010
Chair Asing: Anne.
ANNE PUNOHU: Aloha my name is Anne Punohu, I am representing
the Kauai Fair Housing Coalition today. I would like you to ask you to please
consider JoAnn's idea for deferral. Some of the reasons that I have are a little
different. As Uncle Kaipo has stated for twenty-eight (28) years, it's been
(inaudible) so I think that two (2) weeks won't make that much of a difference. But
what I would like for the general public is to be able to have a more laymen
terminology analysis because in my opinion I feel that the County Housing Agency,
sometimes how things are described here are way over the average person's head, so
I would like to have it explained again to the general public through this Council in
terms that everyone can understand so that all of us can understand how this
would benefit us and how it is the best way to go about and sharing that we have
housing for people. My coalition was specialized in making sure that the lower
income brackets and working people fight for fair housing laws, so I want to make
sure that this law is the best fair housing law that we can pass legislatively,
mahalo.
Chair Asing: Thank you. Is there anyone else? Mr. Taylor.
KEN TAYLOR: Chair, members of the Council, my name is Ken
Taylor. I too agree with the comments that were made by JoAnn and asking for a
deferral on this issue. I know it's a difficult one to figure out how fast to do this but
we don't have to reinvent the wheel, it's been done in many communities all over
the mainland and I think that with a little due diligence, we can come up with a
solution to make affordable housing available for the long term so I hope you defer
and if it can be dealt with in two (2) weeks that's fine but if it needs a month or a
month and a half, two (2) months, after twenty-eight (28) years as Chair as
indicated... a short period of time more isn't going to make a whole lot of difference
but we will come up with the right solution so thank you.
Chair Asing: Thank you. Glenn?
GLENN MICKENS: Thank you Kaipo, for the record Glenn Mickens. I
also want to support JoAnn, Dr. Lundgren and Anne has said I don't see any
problem with deferring this thing for a couple weeks. I (inaudible) the case has
been made that the buyback period should stay at ninety (90) years, the way it is. I
understand what you're saying Kaipo, it's maybe not a black and white issue but for
the people in the public I think the general public anyway, we would like to see it at
ninety (90) years, not twenty-five (25). Thank you.
Chair Asing: Thank you. Is there anyone else? If not, I'd like to
call the meeting back to order.
There being no one else to speak on this matter, the meeting was called back to
order, and proceeded as follows:
COUNCIL MEETING ~ - 25 - .August 11, 2010
Chair Asing: With that, Councilmember Bynum do you have a
presentation or...
Mr. Bynum: I do.
Chair Asing: Okay. You want to go ahead...
Mr. Bynum: And just...
Chair Asing: And do that?
Mr. Bynum: Let me just start by saying where I'm at with this
issue is where I started with this issue. I have to pose the question... why is this
here now? The developer does not have to build these, they've already been given
an extension until June of 2013, they also can apply for another extension. The
reasoning we heard is that when they agreed to a ninety (90) year buyback the
market was strong and it seemed viable and that the world has changed and that
financing is very difficult, I totally agree with that... the world has changed. We
went through a period where banks and lenders were giving loans to anybody
irresponsibly you know and we created this housing bubble and you know we had a
financial meltdown and we're going through that difficulty now as a Nation as so
where the banks were giving anybody loans so a song without doing the thing they
did when I was a kid, check your income and find out whether you can afford that
mortgage or not. Now they have appropriately tightened up and it's a very... it's a
transitional period and I have no doubt that the developer would have very difficult
time getting financing right now with a ninety (90) year term or any term because
financing we know is tight. The Congress just passed the financial reform
legislation that hasn't gone into effect so this is all hugely influx. I don't think any
of us, we certainly hope and don't expect that financing situation will remain this
type, that the situation may be very different two (2) years from now. We've made
some revisions to other housing projects recently but those projects were built, so I
think some people have seen that Kauai Lagoons right now is marketing two (2)
bedroom apartments at twelve hundred (1,200) square feet with golf course views to
first time homebuyers on Kauai for a hundred and seventy-five thousand dollars
($175,000), that's affordable and there are buyback provisions, they're not the same
as they are in this instance but we made those revisions because the units were
built and the finance crunch was right now. In this instance, the finance crunch is
not right now and I think we all expect it to change so why not wait? Why not wait
until a year... a year and a half and see what the finance situation, we should not
be moving on this bill now.
I have a couple of slides I want to show just to put this in perspective because
the other thing that Mr. Lundgren, Dr. Lundgren has spoke to quite eloquently here
at Council is the uniqueness of this project. I said in this discussion that asking for
a ninety (90) year buyback is unique, it is extraordinary but so is the development
so um... if we could bring up the first slide? Hopefully everybody's, familiar with
this, I wish it was clear, the lights are still on... but this is the area of Po`ipu from
COUNCIL MEETING. - 26 - • August 11, 2010
Lawa`i Kai to the Hyatt so if you... and up in the top part of the screen is Koloa, so
we do have a working class neighborhood in this area, mauka of the ocean in Koloa.
The original development for Kukui`ula as Mr. Lundgren, so this is Koloa up here,
this is the Hyatt down here and so Po`ipu is in this area, the Koloa up here is a
working class neighborhood and the original plan if we can maybe go to the next
slide... okay this red area is Kukui`ula, it's a huge section of our precious south
shore. Koloa... all of Koloa is right here, Kukui`ula is much bigger than all of Koloa,
you can see the lots that they have currently subdivided, these are the mountain
side lots where you know the first homes are being built right now, these are the
areas that have smaller lots that spec homes are being built right now. The golf
course is in this area, the point is, is that this is a huge section, the original plan
was to have thirty-five hundred (3,500) units of density in this area and the plan
was a mixed community with apartments and small houses and workforce kind of
housing, it... we all know it's not easy to purchase any home on Kauai but this
entire area changed to fifteen hundred (1,500) lots, will not be a mixed community,
it will be not even the rich but the very rich okay? So part of that decision was to
change the character of our island forever that we gave up thirty-five hundred... we
gave up two thousand (2,000) units of density but we changed the character of this
area. So and remember we don't have to do this now. The housing I believe is
right... is proposed to be right here, Kiahuna Golf Course is right there, outside of
Kukui`ula to build seventy-five (75) units of affordable housing. But... so... but
we're talking about half of the south shore of the usable south shore. Maybe we can
look at the next slide. This is difficult to see but this yellow line that goes around
all of Kukui`ula and along the shore here is the VDA in this area, the other thing
changed with this development was a very, very large expansion of the visitor
designation area that will allow for transient accommodations in half of the homes
that are built in this area, is my understanding. So I just wanted to put this in
perspective, here's all of Koloa, would've been nice if we had you know maybe high
end homes up here and in the middle some kind of workforce kind of housing and
have a mixed community that's integrated as opposed to creating the wealthy
section, the working class section and so on and so forth. So you know the main
point... and we're done with the slides, thank you. That's the... close up of
Kukui`ula, Lawa`i Kai is on the left and Koloa Road is on the right, this area right
here is the shopping center which is you know... so I don't think it's responsible, I
think that testimony we heard today from JoAnn and from Anne and from others is
right on the money. I really like Anne's idea that you know I've said before that this
is complex issues. We should wait on this, we should have a workshop and take
several hours to lay out our affordable housing plans, what program we have in
place now, what our goals for our future are, because we have a very good Housing
Agency that's worked for many years to create long term affordability which is a
huge undertaking and very difficult to do. I think it's not a responsible decision to
move on this today, I think we can wait on this a year, a year and a half and then
revisit it, see where the financing is. You know have that workshop, come back
around, see if we're in a different situation. I think some of the ideas that were said
here, building out for long term rental affordability, looking at land and
infrastructure, Ithink JoAnn's testimony which has been consistent, it's like hey if
right now in this climate getting long term affordable... affordability through a
COUNCIL MEETING • - 27 - .August 11, 2010
ninety (90) buyback isn't working, let's not throw out the baby with the bath water,
let's look and put our creative minds to work and see if there's alternatives. I think
asking the Housing Agency to look at those alternatives is a reasonable request. So
I am going to be hopeful that my colleagues will agree to a deferral today and allow
us to continue to put our minds together to come up with solutions that meet the
working... the needs of working people that live here on Kauai. So thank you very
much.
Chair Asing: Thank you. Further discussion? Yes
Councilmember Kawahara.
Ms. Kawahara: Earlier in the Committee . I voiced my concerns
about all the asks that the developer was... asking for. I do believe that the County
Chas been receptive to earlier request to change their, to change their conditions. I
think the biggest, biggest request that we granted was changing from thirty-five
hundred (3,500) mixed community to high end... seventeen hundred (1,700) high
end million dollar homes. That in itself I think was a huge give away that um...
was a huge concession... I know I don't want to make any more concessions, I
believe that it is too premature to do this, it's unnecessary and it's not in the best
interest of the public good. When we talk about housing, we have to think about
more than one (1) generation, we also have to think about the economics and the
climate that we're in now to put this through now, there's nothing saying that we
have to do it now and I don't think we should do it now because we know in two (2)
years or so the climate, the economic climate will change and there, we won't... we
will be in a better position to provide affordable housing and not have to make any
more concessions. So I would be in support of a deferral for those reasons... I also
think... because I think I know they have an extension so there's no rush for them
to do it. The reason why they're asking for is because there's a Council majority
right now that may be amenable to all the concessions. I do want to look at
alternatives that were raised here and before and I also want to again say that
economic conditions change and they swing back and forth here on the island and to
address this now at a point where these aren't even built, they're not even being
required to being built right now, is just unnecessary right now.
Chair Asing: Thank you. Any further discussion?
Ms. Kawahara: I would like to move to defer this to January 2012.
Mr. Bynum: Second.
Chair Asing: With that, there is a motion to defer and a second,
there being no discussion on a motion to defer... all those in favor say aye?
Bynum, Chang, Kawahara: Aye.
Chair Asing: All those opposed say no.
COUNCIL MEETING. - 28 - ~ August 11, 2010
Furfaro, Kaneshiro, Kawakami, Asing: No.
Ms. Kawahara moved to defer Bill No. 2361, Draft 1 to January 2012, seconded by
Mr. Bynum, and defeated by a vote of 3:4 (Messes. Furfaro, Kaneshiro, Kawakami,
and Asing voting no.)
Chair Asing: No have it. We're back to the main motion as
approved, any further discussion? Councilmember Furfaro.
Mr. Furfaro: Yes. Thank you very much Mr. Chair and I also
want to say um... you know this deferral that was offered didn't pass at four (4),
three (3) and so I think I need to share a little expanded viewpoint of the three (3)
powerpoint pieces that I presented when it was in my Committee. First of all this is
a very difficult process that we've been dealing with' for long periods of time, dealing
with you know housing and housing opportunities on Kauai, our island home. But
I also want to make sure that I clarify a few things. When I sat on this Council four
(4) years ago and what I presented last week, for me it has never changed and I
would like to expand just from a handout and if, if later there's anyone in the
audience that would like to get a copy of this, I will so make them one but I'd like to
ask the staff if they could pass out to the Councilmembers for this discussion. What
I saw as a need four (4) years ago, this is the rest of the presentation from 2007. I
also want to say that you know Kalepa as a project and some of the projects that our
County Housing Agency has done are excellent and we need to recognize though
whether it's Kalepa, whether it's Waipouli... when the economy turns down we end
up with a higher vacancy rate. The vacancy rate then translates into us carrying
the debt service. I think Mayor Carvalho has made the first step in a step that
deals with you know the future in land acquisitions and so forth and our ability to
borrow, to build. I know when Councilmember Yukimura came up, she implied that
she's heard the number twenty (20) to twenty-five million dollars to build if we were
to build on a gifted piece of land that came to us with improvements but I'm not
sure how we as a county would fund a twenty (20) to twenty-five million dollar
project and then worry about the vacancy issues. I'm not really prepared to go into
the details of this plan that I shared out with you as a pass out from July of 2007
but you know some of these things overlap on each other because even Mr. Bynum
said it's hard to have ownership now. And this piece was passed as additional
housing for Kukui`ula's workforce, for them to have an opportunity to build housing
and retain employees through their ownership. So the piece that I passed out to
you was my thinking back in 2007 about us needing to have a strategic plan for
housing addressing all areas on the county, co-ownership, below affordable rentals,
affordable ownership, they're all one (1) set of components here and this piece that I
just passed out, I took three (3) pages from last week but it really is something that
we need to think about in the upcoming General Plan and we need to have a clear
understanding on how we're going to approach all affordable housing, all workforce
housing. This piece touches on rents and leases, this piece talks about programs
that might even deal with co-equity ownership on page twenty-five (25), this piece
talks about as I mentioned earlier the subsidies associated with below market rents.
On page fifteen (15) there's a complete housing survey on our demands on the
COUNCIL MEETING ~ - 29 - .August 11, 2010
island. On page twenty (20) from our survey, there's a housing preference that was
done here on Kauai. Page twenty-two (22) reflects the structure of housing
incomes, yes we have this model of thirty percent (30%) from HUD but as you've
heard me say before, that rental model doesn't work for us, it's too high. So
whatever workforce housing we need to look at; we should focus on the ability for
people to earn equity and for any long term rental we look at, we need to also talk
about the obligations to carry the debt service because those rents are too high
which we just heard in testimony. I would also like to bring your attention on the
last page, page thirty-five (35) it talks about some of the things that we need to do
with the oncoming General Plan. We need to have some very under... very clear
understandings of all the market housing that we need. I have been familiar with it
with my participation for nine (9) years with Habitat, I've been familiar with it for
my many years in the hotel resort business, we're trying to provide rental and long
term ownership opportunities for employees that want to be long term employees.
Couple things we talked about over strategies, seven (7) years ago the concept with
the very big increase in development, the message was very clear, we need to define
ways to reduce some of the density that was given. Density that was given in the
80s and even in the late 90s because we thought we had this economic boom. Well
obviously we have taken at this Council level strategies to reduce density that was
given to Kauai Lagoons, to Kukui`ula, to Princeville Phase II and the second page of
this gives you a summary from the time I was on the Planning Commission until
now on what do we need to do to recover in a safe financial method the amounts of
density we gave prior to 2002. And it is worth visiting on a case by case basis.
Kukui`ula fulfilled their required housing back in the 90s. We came to them
with an extra request for these seventy-five (75) units to be focused on their
workforce. We also asked them in their thirty-seven hundred (3,700) unit density
that they had at Po`ipu to consider reducing it and we successfully negotiated a
fifteen hundred (1,500) unit reduction, that's fact. We also knew those
consequences and that's why we needed to go after the workforce housing. I'm sorry
if I'm revisiting some of these strategies but they are strategies that we need to
address for housing in our upcoming General Plan when we review consistent
policies that address all housing markets. We then said to them after they reduced
their density by fifteen hundred (1,500) units, they could not have the entire area
for transient vacation rentals. What we said, they needed to reduce it by half and
at the time they put in their subdivision phases, they were required, they were
required to identify which areas then would be TVR, as the other areas would no
longer have that entitlement; we negotiated that back.
In the financing position today, I struggle to think how much it's going- to
improve if any. We would like to look at another option obviously but we also have
land that the Mayor has negotiated in the future that we plan to build ourselves.
And it will tie up financing and our ability to pay. This will be the start of housing
for the future for our, our children but at twenty (20) to twenty-five million dollar
bond float right now for us to take this ~ piece is not something I think that the
Housing Department is prepared to manage. It's a rather big amount, it ties up any
future housing plans that we might have, strategies... we built an outstanding
COUNCIL MEETING. - 30 - ~ August 11, 2010
complex in Kalepa, we are moving to acquire land from the State and I ask you just
to consider what's in this overall housing strategy for the County. I have not
changed my position since 2007 when we were able to negotiate this extra credit.
What I presented on those three (3) slides were factual information that we
gathered through surveys and you know I would like to say that we need to come up
with a housing strategy that fits for all of the housing needs on Kauai and this was
the start of it. To think we would defer that for any short period of time, to me is
not feasible. We need people who are in the General Plan update to participate in a
very hard strategy about housing going forward. This additional seventy-five (75)
units was negotiated so that the workforce in Kukui`ula projects was able to phase
in and that's why we have it scheduled over a six (6) year period in the amendment
that Mr. Kaneshiro presented. So that we can, not build it all at once, carry the
debt service for any vacancies or build it all at once and have too much inventory
that people could not be homeowners. So I want to make sure these new
negotiations about items regarding workforce housing for Kukui`ula, really I mean
my thinking was presented back in July of 2007, I have not deviated from that
when we got this additional piece. So please know I agree that we need to have a
comprehensive housing strategy and it needs to be part of the 2010 and this
document says that.
So I just wanted to share that and I will be after our meeting, anybody would
like a copy of this, I dropped a copy off for Dr. Jack Lundgren, I'm not heard from
him since Monday when I dropped it off. I've shared this strategic overview and my
thoughts with the Garden Island and I'm happy to share it with anybody in the
audience. We need a comprehensive policy going forward and we just can't change
consistently and thinking that the economy is going to improve. Even Mr. Bynum
indicated it's very difficult for anybody to have homeownership in today's economic
challenges and I think that's the basis of a lot of opportunity and potential wealth
for families and there's nothing wrong with saying that because they have to fund
children, they have to help bring children back to Kauai that had an opportunity to
go to college and they had an opportunity to borrow equity in a home. So thank you
very, very much Mr. Chair for letting me speak, I would hope that we could visit
this in the upcoming General Plan as far as to having a consistent housing strategy
for our island home but my position has not changed since 2007.
Chair Asing: Thank you, with that Councilmember Chang.
Mr. Chang: Thank you Chair. I want to start off by saying first
of all I am not a member of the Planning Committee but I did listen obviously over
this past testimonies and I would like to start off by saying you know there's really
no perfect answer to policy making and I just wanted to... you know there seems to
be inconsistencies and there seems to be a lot of different confusions in the past so
let me just start off in the past buyback restrictions for housing imposed with
zoning amendments at various... it varied from the county standards for example,
Kukui`ula employee housing ninety (90) years, Kauai Lagoons Court Yards ten (10)
years for eighty-two (82) rentals, Kauai Lagoons Kamamalu ninety-nine (99) years
leasehold sales... the affordability restrictions are dictated by our policy goals. If
COUNCIL MEETING ~ - 31 - August 11, 2010
our primary goal is to offer residence wealth, building opportunities... shorter
buyback restrictions should be used. If our primary goal is preservation of
affordable housing then our long buyback restrictions are appropriate. The floor
amendment under consideration proposes to reduce a ninety (90) year buyback to
twenty-five (25) year buyback. The amendment strikes a balance where our policy
goes because it prevents speculation and short term windfall profits by those who
purchase a unit. It allows for the repurchase or resale of units during the first
twenty-five (25) years of ownership and it gives homeowners the opportunity to gain
equity should they live in the unit for twenty-five (25) or more years. Now before
the passage of the workforce housing policy in December 2007, if I'm not mistaken,
the county policy was to impose a ten (10) year buyback restriction. With the
passage of the workforce housing policy, the buyback increased to twenty (20) years
for income restricted sales, ten (10) years for non-income restricted sales. Now I
just want to say.:. you know there has been testimony of just taking care of a few
people but in and around the year 1994 Kukui`ula already actually fulfilled ten
percent (10%) of their housing requirements, a hundred and seventy-four (174)
units: `Ele`ele Nani phase two (2) approximately a hundred sixteen (116) units and
Paanau phase one (1) sixty (60) units. Now with the addition of the seventy-five
(75) units and Paanau Village up to come with fifty (50) units, that's going to be a
total of three hundred and one total units, that's twenty percent (20%) excuse me...
of the current market density and to me that's much more than pleasing a few
people. One of the things I would like to add is from what I've been hearing is if we
had the land and if we had the infrastructure, we might be able to do it but I don't
believe that the county has any... is anywhere near any sort of financing or any
opportunity to do that financially and I think that's far more difficult than one
would think and if you know many of the projects that perhaps was once funded, it
probably was because it was for eighty percent (80%) lower or sixty percent (60%)
lower. Now I was ready to vote on this and I was extremely supportive because one
of the things that I... it may have come up but you know I am convinced and maybe
I think that everything is a perfect world but I don't believe that this would open
anywhere near open market. You know of the forty-five (45) plus units that's
available for the Kukui`ula workforce you know there are two (2) other different
tiers outside of the workers and that happens to be if you are a shop owner, say for
example... if you are at Quicksilver, Bubba Burgers or what have you, employees
also do have a chance to get into those homes and a lot of people don't realize that
but not only do the shop owners but if you are somebody for example and I'm sure
they'll be people that want their own gardener or their own... somebody that takes
care the pool, that person or nurse that comes there... to care for perhaps the
elderly or the needy, they too can qualify so I am... you know the expansion of Koloa
landing and you know the pieces there and to, to live affordably in Po`ipu in that
area I think 'it's going to be wonderful and the people that I talk to you know they
understand, they know if it's twenty=five (25) years, they'll know the rules, they'll
know what they are getting into and they'll buy into and I believe that they're going
to stay there for twenty-five (25) years and that's where they want to live. If you
look at a couple that's twenty (20), twenty-one (21), twenty-two (22), twenty-five
(25) years old... twenty-five (25) years they're fifty (50) years old they own their
house, outright they get the equity, I mean I think it's a great, great thing. I would
COUNCIL MEETING - 32 - ~ August 11, 2010
like to say listening to I have to say the testimony of Anne Punohu, you know I am
in favor of Kukui`ula, I am in favor of the development but in an inexperienced
housing Chair for the Kauai County Council, I also don't believe that we can get a
workshop you know within the next two minutes... excuse me the next two (2)
weeks to do a deferral but I just feel at the last minute I do need to support a
deferral. I don't believe there's a sense of urgency, I don't believe we need to do
something as we all know July 2013, I like the fact that incrementally we're going
to build... they'll be demand we're going to build, they'll be demand and as I
mentioned I don't believe that it is going to go to open market. However, I am going
to support the deferral in the sense that I am the housing chairperson and I do
believe that I need to give an opportunity and in two (2) weeks I'll be able to vote
but I am going to support the deferral but I just want to let you know this bill is not
going to go to the next Council to make a bid because somebody thinks they have
the votes here so they don't want to wait to the next Council because after the
deferral I do plan to support this bill, thank you.
Chair Asing: Thank you. Councilmember Kawakami.
Mr. Kawakami: Thank you Chair and you know I just... you know
I'm sitting here and I'm... you know in business we have truth in marketing laws
that you know kind of keep us in line on how we market things and you know I'll
eventually get back to that but I think for our purposes as part of the process you
know I try to ask this simple term that I learned in business school and it's why
DFM... w.h.y.D.F.M... What have you done for me? It's like the song "what have
you done for me lately" and so I ask what has Kukui`ula done, just to see yeah.
Because here they are asking us so I want to know what we ask them to do for us
and I have a list of things and some of them are things like... the agreement to
develop a twenty (20) acre community park for our community with comfort stations
and parking. Development of Kukui`ula Bay Park because these are things that get
often overlooked and to be fair I think that we should be you know letting the
people know exactly where these things come from because, eh to be honest, guys
my age think things fall from the sky but they don't. Development of Kukui`ula Bay
Park which is twenty (20) foot wide lateral beach access, we talk about preserving
beach access. Contribution of a maximum of five hundred thousand dollars
($500,000.00) of comparable improvements to mitigate impacts to shoreline
recreation resources including development of twenty (20) stall public beach
parking lot at (inaudible) pond, development of Po`ipu Beach Park improvements,
restoration of Brennecke's Beach, development of other shoreline improvements,
dedication of lands for Spouting Horn Park expansion, acquisition of beach accesses,
creation of a hundred foot wide open space setback of mauka side of Lawa`i Road
west of Lawa`i Beach Resort. As far as affordable housing, Councilmember Chang
touched upon that with a hundred seventy-six (176) affordable housing units that
are already developed. And when you add on the seventy-five (75), yes it does, does
get it up to a twenty percent (20%) of the project if you factor in fifteen hundred
(1,500) units and so what that means is, even under ordinance 860 which is the
thirty percent (30%), when you look at it if you apply with certain provisions, there
are incentives you can drop that down to fifteen percent (15%). So they're not so far
COUNCIL MEETING ~ - 33 - .August 11, 2010
off from complying with ordinance 860 and that was an ordinance that was adopted,
a few people who testified on this matter, were all voted on and I heard things
saying eh it wasn't a perfect bill you know but you understand Derek that when you
guys are voting on a bill, you make a you know... you make a compromise and I
agree. Which brings me back to testimony I heard about leaders and followers. You
don't agree with the bill, why vote for it unless you're following. Now some of the
other things besides the hundred seventy-six (176) affordable housing units that are
already built, you add in the seventy-five (75) that they are going to be building,
traffic and transportation developing of the round-about in Po`ipu Road, Lawa`i
Road, development of the western by-pass road and so on and so forth, potable
water system. Development of two (2) new wells providing one hundred percent
(100%) of potable water for the project and one hundred percent (100%) redundancy
that's going to be dedicated to the county. So they're not only taking care of
themselves but taking care of guys living outside of the project also. Development
of three (3) new water storage tanks dedicated to the Department of Water,
construction of transmission and distribution lines and I'm just touching upon
things that just hit me, there's other things that are in here that I'm not going to go
through. When we talk about school facilities, dedication of a seven (7) acre parcel
adjacent to existing Koloa School to the Department of Education for future
expansion and the provision of an additional twelve (12) acres to DOE should be
required for a second Elementary School site within the project. And for me
something that touches upon being that I have some Hawaiian blood is that they
dedicated a five (5) acre parcel, Prince Kuhi`o Park to the Royal Order of
Kamehameha and not only that, they also are going to be dedicating another...
what is this, is it sixteen (16) acres and another five (5) acre besides the fact, they
are giving back. So we say that they are coming here asking us but we have asked
them and they have given us to. So it's not a one (1) way street like we marketed it
to be okay?
To me that's the injustice and as far as ordinance 860 you know let's call it a
(inaudible) and this is only my personal opinion but it's marketed and it was
marketed as an ordinance that was going to create affordable housing when to me it
does exactly the opposite. What it does is it stops development and I think that's
the approach we've been taking. When we try to identify the problem before we
start crafting solutions and this is my opinion and only one (1) man's opinion, that
we've been taking the approach of punishing people to discourage behavior we don't
want and we know from raising our own kids and from science that we should be
creating incentives to encourage behavior that we do want. You know because
there's a saying in business, you create laws, we're going to find a loophole but when
you create incentives, we're going to find ways to maximize that incentive and if we
want to encourage certain behavior, maybe we should start really taking a new look
at how we address this kinds of needs. And I think it would be remiss to give you, if
I didn't give you my manao from a thirty (30) year old... thirty-two (32) year old as
to what some of the challenges are because I heard everything thrown up there.
But I wonder how many yeah people we've actually asked as to what the challenges
are because I tell you right now the opportunity or the challenge isn't the lack of
opportunity for affordable housing units, they're out there right now, the challenge
COUNCIL MEETING • - 34 - • August 11, 2010
is the lack of qualified buyers and why you ask me... is because we have failed to
give the tools necessary to the young generation to know what to do when these
opportunities arise and I tell you the county is taking steps to address that problem
because they've been having affordable housing fairs, they've been partnering up
with the private sector to start educating but we have failed to give our young ones
the tools necessary, the life skills you know... they learn great arithmetic, great
English skills but when you tell them to balance a check book or you tell them the
importance of a credit score, the factor that it plays in getting a loan... they're
clueless. Because we haven't, we haven't put the emphasis on that skills but we're
starting to. But there's a lot of kids out there that went out and bought the nice
new truck, bought the new stereo system and when these opportunities arise,
they're going in for loans and they're saying what's a credit score, isn't five hundred
(500) good? And that's where the problem lays also. It's not just a one found
approach you know and as far as 860, you know let's... I'll call it what I feel it is,
you know I feel that the intent of it was great, it was marketed as a bill or an
ordinance that would create these opportunities, to me it did the opposite, we're
going to have to take a look at this thing, we need to work with the Housing Agency,
we got to work with developers, they know more than anybody else what the
challenges are and we got to get some of the young guys to the table to give you
guys what the real challenges they face.
So I'll be supporting this, you know we supported another project and I've
heard arguments that it's already built, yeah it's already built... so shouldn't we
learn from the challenges that have were presented before? Absolutely. I've heard
things say that oh it's a different project, it's a leasehold but I tell you what, in my
opinion we gave up even more because we actually had some skin in that game,
we're the leaseholders, we gave that up for fee simple sales, so if you think about
giving up opportunity, I supported that too... why? Because we had two (2) buyers.
How many of us have asked a young guy, would you want to buy a unit with a
twenty (20) year buyback restriction? I bet you ninety percent (90%) of them are
going to ask you what is that and then when you explain to them, there's going to be
some hesitancy because nobody wants to be tied, at least the majority of the people
I've asked... don't want to be tied to that kind of provision. So with that being said I
plan on supporting this amendment and I think we need to move forward and if we
need to move forward in a different direction you know you know if we want to
create a certain kind of behavior, it's going to take a different approach than
penalizing or discouraging bad behavior. I think it's going to take a whole different
look at how we do things. Thank you.
Chair Asing: Thank you. Let me... Go ahead Tim.
Mr. Bynum: I really think this is a really important discussion
that we're having, I think it's great. You know those of us who were on the Council
during the passage of 860 we went and had this discussion for months and months.
It definitely a philosophical discussion, everybody's manao here is valuable and
appropriate and you know so let me start by saying no question that A&B and
Kukui`ula have been straight up, good players in the community for many years and
COUNCIL MEETING • - 35 - .August 11, 2010
they continue to be straight up and good players in the community for many years
and I'm sure they will into the future. You know I happen to disagree pretty
strenuously with this particular provision but you know if we go to philosophical
stuff, we're going to say Councilmember Kawakami characterized 860 is punitive
and said it does the opposite of creating affordable housing, it's... one of the things I
really hope comes out of this is that we follow up regardless of the outcome today
and because we clearly need to revisit this whole discussion. And because those
hundred seventy-six (176) units came as part of an affordable housing exemption.
You know affordable housing requirements for building in Hawaii basically are the
concept that says if you're going to get to build very high end things for people who
don't live here, you have to contribute to workforce housing, it's called inclusionary
zoning, it's very common all over the Country and it has varied widely in the... in
Hawaii. Grove Farm built a lot of homes when the requirement was sixty percent
(60%), Kukui`ula built their homes when the requirement was ten percent (10%),
our current bill says thirty percent (30%) and it truly does have incentives. One (1)
of those incentives is integration of the community, if you build your affordable
housing in an integrated way, you have to build less. This housing is segregated so
it is a very complex issue and we should revisit it but if you take a pure business
point of view, hey any requirement you give me is a disincentive and isn't going to
happen but if we didn't have those requirements we wouldn't have `Ele`ele Nani, we
wouldn't have any of the housing that we see as affordable on this island now,
(inaudible) Village, all the homes in Puhi, all of these homes were as a result of this
policy that says to a developer, you have to contribute to a range of housing needs.
So philosophically, Ithink that's a good thing. The discussion is... where is that
balance, you know... during 860 I thought the exemption should be stronger, other
people thought that they should be less. We came up with the compromise and we
all voted for that bill. We will need to revisit that bill but I hope revisiting it isn't to
give away the idea that we need to build housing for a full range of people, so this
particular instance to bring it back here, I think the citizens here and the facts that
are on the table that nobody has to perform on this for a number of years, gives a
very compelling reason for us to continue this dialog and discuss it more. You know
Councilmember Kawahara asked for a deferral until January 2012 which is still
eighteen (18) months away from any deadline to perform and you know that was
voted down four (4) to three (3). I hear a request from the community to defer it for
two (2) weeks, Mr. Furfaro said that in two (2) weeks we have a full agenda, so right
now I'm going to make a motion to defer this until September 15 Council Meeting
which is two (2) meetings from today to give us time to continue this dialog and see
if there is some middle ground and not as JoAnn said here today, an irreversible
decision that we don't need to make right now. So I move to defer this...
Chair Asing: Ah Councilmember?
Mr. Bynum: To September 15.
Chair Asing: Councilmember...
Mr. Kaneshiro: (inaudible)
COUNCIL MEETING. - 36 - August 11, 2010
Chair Asing: Why don't you do this... you know in fairness to all
Councilmembers, you shouldn't be doing motions to defer when there is...
Mr. Kaneshiro: Discussion.
Chair Asing: Discussion on the item.
Mr. Bynum: Oh I'm fine with that.
Chair Asing: Give members the opportunity...
Mr. Bynum: I thought I waited...
Chair Asing: To say their pieces first...
Mr. Bynum: Absolutely.
Chair Asing: After discussion has taken place then you can go
ahead and do that.
Mr. Bynum: I totally agree with that.
Chair Asing: That's not a fair way to treat Councilmembers on
the floor.
Mr. Bynum: I think that...
Chair Asing: So with that... do you want to withdraw that
motion?
Mr. Bynum: Yes I'll withdraw that motion and I'd like to
respond to your comment because I think anybody who watches these Council
meetings knows that I act in fairness to all the Councilmembers...
Chair Asing: That's not what I see now...
Mr. Bynum: That's why I waited... may I finish?
Chair Asing: Thank you. Go ahead.
Mr. Bynum: I was under the impression I was the last one to
speak here... Councilmember, other members had an opportunity so if I
misperceived that, of course I'll withdraw the motion.
Chair Asing: Okay. Is there further discussion? Councilmember
Furfaro.
COUNCIL MEETING • - 37 - August 11, 2010
Mr. Furfaro: Yes first off thank you Mr. Bynum... First of all
thank you Mr. Bynum for recognizing that according to our rules, we all have an
opportunity when we're in discussion to speak twice and so I do want to expand a
little bit. There are items here that I agree with Mr. Bynum on very complex issue.
As you saw from my past documents, I do think this is something that we need to
review and we have the opportunity to do it in the upcoming work that we do or
recommendations that go to the update of the General Plan. We need to be
consistent and I hope that we can come out with a policy that's correct and
reasonable, reasonable is the piece that I'm saying here. As you know and you can
check the minutes when 860 passed, I voted for it, but I also said we're going to be
right back over here and you agree with it Mr. Bynum.
Mr. Bynum: Absolutely.
Mr. Furfaro: The fact of the matter we need to have this
philosophies, the philosophy that we all have, we need to convert it into a policy
that people can really depend on as far as going forward. We have projects that are
ten (10) years from rental converting from lease to fee, I mean, we're kind of not
consistent with kind of a full managed policy and I would like to see that on the
horizon. The other thing that I do want to repeat again you know these seventy-five
(75) units were an additional workforce housing condition.- In my opinion and I
went with Councilmember Yukimura when we floated this idea of the additional
seventy-five (75) units that this was first about Kukui`ula's workforce, that they
were going to bring in people and understood the economy was robust during that
time but we did not want to put additional burden on the existing housing inventory
we had, we wanted them to identify through our Housing requirement. In addition
to their requirement which was law at the time, this extra seventy-five (75) units...
excuse me for hitting the mic... so it is extremely complex, we have many variables
from incomes to rental market versus building wealth for a family that's making
long term residence here and I'm very glad that we're having this discussion
because I do agree with you, it's a very healthy one, it's a very healthy one. So I just
wanted to pointed... point that out one more time... this is about housing for their
workforce in addition to the compliance that they had earlier. Thank you
Mr. Chair.
Chair Asing: Thank you.
Ms. Kawahara: Point of...
Chair Asing: With that I'd like to turn it over to you... I'm going
to make a short presentation. I wasn't planning to but I... because of the discussion
that took place, I feel that is only right that I explain my position and why I'm
taking the position that I am taking so...
Mr. Furfaro: May I raise this question now? If the floor is
turned over for me for the purpose of the Chair making a presentation, would you
COUNCIL MEETING - 38 - • August 11, 2010
folks have any difficulties that I return it to him and I'm prepared to take a vote on
it after his presentation...
Mr. Bynum: Problem...
Mr. Furfaro: And Mr. Chair would you mind if I recognize Lani
Kawahara first...
Chair Asing: Sure.
Mr. Furfaro: She had her some testimony.
Ms. Kawahara: Oh.
Mr. Furfaro: You had your hand up.
Ms. Kawahara: On? Your discussion about putting...
Mr. Furfaro: On the discussion yes.
Ms. Kawahara: On the whole discussion or the part to give him
the...
Mr. Furfaro: Ah well let's go there first.
Ms. Kawahara: Okay, I don't want to talk about that.
Mr. Furfaro: Is everybody okay with the fact that I'll turn the
meeting back according to our rules to the Chair after his presentation...
Mr. Bynum: Yes.
Mr. Furfaro: Thank you for that clarification. I'll take the Chair
from you.
Chair Asing: Okay.
There being no objections, Mr. Asing, the presiding officer, relinquished
chairmanship to Mr. Furfaro.
Mr. Furfaro: Mr. Asing.
Chair Asing: Let me make a short presentation.
Mr. Furfaro: Yes, fine thank you.
COUNCIL MEETING • - 39 - .August 11, 2010
Chair Asing: Yvette can you turn the lights off? Let's get the
lights off first.
Mr. Furfaro: Is there a mic over there? Mr. Asing the floor is
yours.
Chair Asing: Thank you. Let me just do... I want to do a
comparison and two (2) months ago in May we had the Kauai Lagoons project come
up and in the Kauai Lagoons project, we had a communication not from Kauai
Lagoons the developer but we had the communication from our Housing Agency and
we took a vote on that item and what did the Housing Agency recommend in the
Kauai Lagoons project and here it is and I want to make a comparison because we
now need to talk about fairness... fairness... how do you treat developer versus
another developer? In my mind and opinion we should treat both the same or
relatively equal but it should not be you know in my opinion quite different... with
that let me just start. In the Kauai Lagoons project we initially started with a
ninety-nine (99) year lease and in the Kukui`ula project we had ninety (90) year
buyback. In the Kauai Lagoons project we converted the lease to fee. Now if you
look at this you can say that it's from ninety-nine (99) years here back to fee here...
this is fee simple here and in this area... so these are the two (2) changes here. Now
when you look at this portion here, it was amended in Kukui`ula, we're saying the
buyback should be twenty-five (25) years. Now in the Kauai Lagoons we're saying
twenty (20) years of sales and why is it that we say one (1) developer you're twenty-
five (25) year buyback and in another case we say that the buyback period is twenty
(20) years? So that's not fair, that's not equal, it really should have been the same
as far as I'm concerned but even more importantly this feature here, the twenty (20)
years that you see here is for the first three (3) months... of sale. Then for the next
three (3) months of sale, during the second two (2) months, it's ten (10) years
buyback. So when you look at this you say ten (10) years and look at where they
are, they are twenty-five (25) years and put the next slide on. And if you look at
this here, we had the first period over here of three (3) months, it's twelve (12)
months. The second period here of two (2) months and the third period here of one
(1) month. If you take all of this here and add this up, so three (3), five (5), six (6)
month period for Kauai Lagoons, and you turn it over to the open market, it's open
market right here. That's what this is, with the option first of the County to buy.
In this particular case, look at this, this is twelve (12) months. Why do we have
twelve (12) months here and we have over here six (6) months? You know there's a
fairness issue, why do we do this? So when you look at things like this, you're
saying something is .wrong and I don't know why it was done in that manner but it
is extremely, extremely difficult for me to understand the difference in treatment
between one (1) developer and the next developer. And throw on the next one (1)
please. And this is the portion that it goes into the open market, so after six (6)
months in the Kauai Lagoons project, it's now open to the county... could still
purchase and then it's on the open market, it's gone, there is nothing, zero. Now if
you look at this one here after fourteen (14) months it goes into the open market
here but the biggest difference is that in Kukui`ula, the twenty-five (25) years stood
all the way up into this fourteen (14) months here and in this case it was six (6)
COUNCIL MEETING • - 40 - ~ August 11, 2010
months, so vast difference in how we treat people. Now even more important is
this, why in the world, in this instance dollars to the county when it goes to open
market, county zero... zero. In Kukui`ula case it's the twenty-five percent (25%) to
the county, why... why do we do this? Why do we treat... it's almost punishing one
(1) developer versus the other, zero to the county over here when it goes into the
open market. Now we just did this, all of this. We passed this six (6), zero (0) on
this Council and now we're faced with this and we're saying this is wrong. Wrong?
Yes it is wrong, it is unfair treatment to Kukui`ula as far as I'm concerned. It's just
unfair. Why do we do this? I don't think this is right and I can support it because I
think it is some consolation for Kukui`ula but you can see the unfairness between
how Kukui`ula is being treated compared to the Lagoons project. And we just had
this on the floor and everybody that was here, there was six (6) people that made
the vote because Councilmember Kawakami happened to be absent on that
meeting, he was up in Washington I believe for a conference and so the six (6)
people on this table voted for this. So it just don't make any sense at all and you
want to turn this off. Can we get the lights back on. And let me finish up as soon
as the lights get back on. Let me finish up by making a few other comments, like I
said this issue was on the floor two and a half (2 1/~) months ago and we said okay,
everybody on this table voted for it. If we said okay then, what's wrong now? Even
if we're punishing them, it appears that way... zero to the county at the very end to
the Lagoons, for Kukui`ula sorry but twenty-five percent (25%) for you, bye. Why do
we do that? Fair, that's not fair. Something wrong. Now let me make a couple
comments... and this comment is to Councilmember Chang about not going into the
open market, you don't believe that... let me tell you what history tells us... I know
what history tells me. Igo way, way back and I can remember the first project that
was done by Grove Farm and this is the Hale Lani project, when that project was
done what did you think happened? They couldn't sell. Now the issue here, you
must remember this... you have to grasp this and make sure you understand this,
the developer meets the concern and the condition on affordable housing, they build
it. Here you go county you ask me to do it, I've done it, I built it, here it is. It
doesn't move, it sits there. So half of the project is sold off, the other half is there...
I'm the developer, I met my commitment and you're now telling me I have to carry
this debt service because these unsold units are making the payments and I fulfill
my obligation and it's sitting there and you're forcing me to pay the debt service,
pay the debt service, pay the debt service... come on...
Ms. Kawahara: Point of...
Chair Asing: You should not...
Ms. Kawahara: Point of order.
Chair Asing: You should not do that.
Ms. Kawahara: Point of order.
Mr. Furfaro: Excuse me Mr. Asing.
COUNCIL MEETING • - 41 - .August 11, 2010
Chair Asing: Yes.
Ms. Kawahara: Is the Councilmember addressing a specific
Councilmember or is that allowed on the floor or is it to the body?
Mr. Furfaro: I could not... I could not answer your question but I
assume he is addressing the body:
Ms. Kawahara: Because I thought he had...
Mr. Furfaro: I do have him on ten (10) minute timer for the
(inaudible)
Ms. Kawahara: Okay so he's addressing the entire body, not a
specific Councilmember?
Mr. Furfaro: I believe so.
Ms. Kawahara: Okay thank you. Thanks for the clarification.
Mr. Furfaro: Mr. Asing you can continue.
Chair Asing: Yes. My I don't see the problem because everybody
has their opportunity to say what they want to say about the project and the
concerns and history so that you all have a good understanding of each other's view
and where each other comes from and I get interrupted.
Mr. Furfaro: Well.
Chair Asing: That's so unfair.
Mr. Furfaro: You have the floor and I will see that you have your
complete ten (10) minutes, please go ahead.
Chair Asing: Okay thank you. And I just wanted to say that. In
the Hale Lani project, what you had is you had housing units sit there Dickie and
the developer could not keep on sustaining paying the debt service so what
happened, it went into the open market, that was the start and that was many,
many years ago. Now that has continued on and on and on and that's the Shuler
project. They also, Grove Farm did another project there, same thing again... the
houses could not be sold, it had to be sold on the open market. So there's a history
of that and it happens all the time so I just wanted to say that. And in reference to
Councilmember Kawakami's statements, you're absolutely correct, I have here... I
was going to do it on a powerpoint but I have twenty-three (23)... I ended up with
thirty-one (31) things that Kukui`ula has done which Councilmember Kawakami
mentioned a few of them. Let me just touch on a couple that Councilmember
COUNCIL MEETING. - 42 - August 11, 2010
Kawakami talked about and when, when the agreement was struck. When
Kukui`ula got their development, it was passed. I thought it was really admirable
for them to do some of the things that they did, agreed to on conditions. As an
example the twenty (20) acre development of the twenty (20) acre community park
including a multipurpose building. You know that twenty (20) acre park and the
multipurpose building... maintenance in perpetuity... wow! Can you imagine that?
Twenty (20) acre park with the building maintenance by Kukui`ula in perpetuity
forever. I said to myself.. wow... great I'll agree to it, I'm voting for it and I did
vote for it but in me, I'm saying wow you can afford that, that's great. Now that's
not the only part... Kukui`ula you know that harbor area where had that small
park, exactly the same thing. Total maintenance in perpetuity, forever... county
don't have to spend any money. It's a few things that they've done and they've
given to the Royal Order of Kamehameha, that little park that they have here,
down at that point... it's yours. Not only that, they turn around and they give
sixteen (16) more acres behind that to the Order of Kamehameha. So these are the
kinds of things that they've done including doing their share of affordable housing.
So I think what Councilmember Kawakami was probably trying to do and say is
that, you know they're doing their share of not only the housing area but they're
also doing their share of giving back to the community for their development that is
going to have some effect on the community. So here's the give back and I have
listed here you know thirty-one (31) different items and you know the one big thing
that I talk about all the time is saying you know the bypass, that so-called western
bypass. You know that was built and that cost them about thirteen million dollars,
so they did that also. It's a number of things that you have to give them some credit
too on what they've done and what they're going to do. So I don't think that it's
unreasonable for what is being asked. It is in my opinion very reasonable and that's
the reason why I will be supporting this. I will also tell you the issues that you
make reference to about housing and buyback and how long... I have gone through
that with the Housing Agency back twenty (20) years and it's not easy, it's not
simple and it's going to make some movement back and forth. It used to be at one
time, ten (10) years and the ten (10) years has been stuck there for a long time, the
history behind ten (10) years was simply, where did ten (10) years come from, did it
drop from the sky? No. It came from the State. The State does ten (10) years and
the county just took that and said well we need something, we need some guidelines
so what are we going to do, so let's find out what does the State do? The State uses
ten (10) years and that's how we got the ten (10) years, so it was always ten (10)
years. And then we tried to make adjustments and so it's... it's not simple and
you're not, you're not going to, going to really get there, it'll be this movement and
there's this twenty (20) and the ten (10) and homeownership. So it's something
touchy but I... for the reasons I've given, I mean I'm in full support of this. So with
that thank you.
Mr. Furfaro: Thank you. Before I give you back the floor,
Mr. Chang asked to be...
Chair Asing: Sure.
COUNCIL MEETING • - 43 - .August 11, 2010
Mr. Furfaro: Recognized and so I'm going to recognize
Mr. Chang while I'm still Chairing the meeting.
Mr. Chang: Thank you. And I just wanted to let you know...
thank you I really appreciate and you did offend me and I didn't feel singled out
whatsoever. And I am aware of Hale Lani. I understand that that was one of the
first multi-unit duplexes on the island of Kauai itself and I believe that the
hurricane hit in and around that time and era, so I understand it was tough for
people and maybe that project didn't move forward but one thing that I am familiar
with is that adjacent to that as many of you know, I am in the Puali subdivision and
I like the fact that that subdivision was built incrementally in six (6) different
phases and that's one of the things that I do support with Kukui`ula and I
mentioned earlier, if it was a perfect world that I'd like to live in, dream of, you
know I do believe and that's one of the reasons because talking to people there and
understanding the... just the wonderful location and just the opportunity to bike or
to walk or other people within that area, I just feel that it's a prime location and I
hope that it never gets into the open market. Thank you.
Chair Asing: Thank you.
Mr. Furfaro: Thank you. Just before I turn this back to you, I
think one of the points in the bill that we also need to recognize is, there is an
opportunity for the County to buy a portion of this inventory back if it does sale, sell
and it's in the one hundred and forty (140) income bracket and below. If there is no
objection, I'm going to turn the floor back to the Chair. Thank you Chair, the floor
is yours. Thank you Chair, the floor is yours.
Mr. Furfaro returned the chairmanship to Mr. Asing.
Chair Asing: Thank you. With that any further discussion?
Councilmember Kawahara.
Ms. Kawahara: So this is the final discussion on the bill yeah?
Chair Asing: Yes go ahead.
Ms. Kawahara: Okay. First of all let's be absolutely clear that the
county alone cannot provide for all affordable housing that is needed in our own
county, absolutely... I've learned that. I know how far behind the county is in
providing affordable housing to workers. So we do, we do share that burden with
businesses coming into the community, specifically and particularly large
landowners businesses. What I wanted to say was... that, that burden is shared
and the reason for that is because those large landowners when they do put in some
kind of community or buildings it does have impact on the community. And I'm so
glad that you were able to list at least thirty-eight (38) of the things that Kukui`ula
has done. I'm sure all of our big landowners have many, many projects that they've
been able to provide the community with, but let us also be sure to know that the
COUNCIL MEETING • - 44 - August 11, 2010
county when we are sharing the burden with them, they are also getting the
opportunity to be successful and profitable. So the balance there is what we're
trying to strike here and we definitely have different ideas on how to do that. Again
I want to recognize and I'm glad you had at least a list of thirty-eight (38) items
because nobody here is saying Kukui`ula is bad and they're evil, no... what we're
saying is that they had an agreement and they're coming in to ask for a different
amendments to their agreement. Some of them are things that the Housing Agency
absolutely has no problem with and others they didn't feel that it was going to be
useful to preserve affordable housing. When we talk about fairness again none of
this discussion is to reflect badly on any of our landowners. When you talk about
fairness and unfairness in different projects, I just have to wonder there has to be a
difference between an actual project that's built out, has been physically built and
invested in and improved upon that property versus something that is not even
existent, doesn't have to be built yet and has extensions till 2013 or even beyond.
So to me this is where you do put your foot down and say you know now is not the
best time to do it, they're not having the best... nobody is having a good time in this
environment and this economy, so we'll put it off. I'm sorry that we weren't able to
do that deferral because I sincerely believe that everybody's here to try to get that
balance to be making these decisions and these concessions at this point in 2010 on
a project that not is even built out, is to me not, it's not reasonable, it's not needed
and it's not necessary. Ah, if you give me a few minutes... so in the end, this is not
about certain developers, this is about the goal we want about affordable housing,
and this particular agreement also is an agreement that was made between a
developer and the county itself, it's not stuff that we are telling them to do right
now or to change right now. I personally believe that as the county government and
a public servant, I want to put my foot down here and say I want to stand up and be
counted on the side for public good for the overall public good of the island. I believe
that this doesn't strike the balance between what our developers want and what the
county needs. So I probably am not going to support this bill but I want it very
clear that we all know that the county cannot provide on its own affordable housing
for everybody that needs it and we do rely on developers to share that burden;
however, I am worried that this is skewed too much to the developer and giving
them up all the concessions they want prematurely and unnecessarily. There's
nothing making them do this, build now to go to market now or to put them in their
different, to have. their different increments sold at that rate. They're not even there
yet, they don't even exist. So that's my two (2) cents and I thank Councilmembers
for their time and I would like to ask that you consider, consider whether or not this
is a good balance between what's good for the public and as our duties to protect our
county and provide affordable housing for our citizens.
Chair Asing: Thank you. Councilmember Kaneshiro.
Mr. Kaneshiro: Thank you Mr. Chair. I'll make my discussion
rather short as I've made some discussions when we did have this before... the
Committee, the Planning Committee, but again I want the public to know that you
know for comparisons and I know a lot of times these points are not pointed out,
they want to point out you know... just what they think is the ninety (90) year
COUNCIL MEETING • - 45 - .August 11, 2010
buyback period and in comparison you know again as I stated Maui County has the
longest buyback period in their housing policy which is the twenty-five (25) year
buyback period. The State of Hawaii I want to say that again the State of Hawaii,
City and County of Honolulu and Hawaii County, all use the ten (10) year buyback
period for affordable housing. I know it's not going to be printed because I said it
because I said it the last time and it wasn't printed as so. So for the public I wanted
to put it on record so everyone understands that if you look at a ninety (90) year
buyback period you know, to me comparably to what the counties, the other
counties do... the State of Hawaii itself do with their housing policy is excessive to
me... it is excessive, now that's my personal opinion and we all have to do a policy
call and what we're here looking at is basically you know how do we fulfill these
goals by making a policy calls. And again it's my belief that ninety (90) year is too
excessive. I know how the ninety (90) year came about, I was involved through this
process when the zoning was granted for A&B, there were other issues on the table.
There were issues of condo type of housing, there were leasehold condo type
housing, there were all kinds of things thrown around, so you know finally I guess
in agreement this was something that the developer had to make a very, very hard
choice in dealing with because of other housing ideas have been put out at that time
when we voted. We all knew as Mr. Furfaro said at... this eventually would come
back to the table and it's here. And I think that you know it's only prudent for me
to be able to vote and had this you know... move along rather than try to defer it for
other issues. Mr. Furfaro pointed out something that happened 2007, evaluating
the baseline, analyzing our current situations, so is that what we're asking about
for us to do again, defer this so that we can revisit this?
Mr. Furfaro: I hope we can defer to the General Plan
Commission.
Mr. Kaneshiro: Right and I'm just referring that you know this is
what we have some of the bodies that are serving on this Council asking us to do...
we have some of the same people sitting on this Council asking us about our
housing policy. I mean if you really want to deal with that, let's bring it back to the
table and deal with it then. Today what we're dealing with is Kukui`ula. Kukui`ula
like I said you know, previous to this already made all their housing commitment,
as Mr. Furfaro eloquently pointed out that this was for workforce housing, this was
an addition to that time solely was granted and if you look at my amendments, my
amendments even went further than what most of the other counties do. My
amendments requested atwenty-five (25) year. My amendment also requested a
share of twenty-five percent (25%) coming back if there is some profit after sales
and you know people we got to keep in mind, keep in mind this you know I think if
you take the general public as a whole anyone purchasing or an employer who's
going to purchase an employee housing unit, I mean many of them probably will sell
within twenty-five (25) initial purchase I mean, think about it. I mean we're not
thinking about things like this, probably because of job turnover, family needs,
divorce, I mean all these things happen people, realize that. You know... and the
desire to live elsewhere and if they do sell it before the twenty-five (25) years period
is up, it kicks right back in to another twenty-five (25) years again. So I mean you
COUNCIL MEETING. - 46 - August 11, 2010
know we got to analyze all of this, think about it and this is what is before us. And
the kick back time is (inaudible) affordable to the next purchaser, so you know this
is real life story that I'm telling you about you know. And all of a sudden we're
sitting here and some of us are even becoming economist, predicting two (2) year
from now if we're going to have a turn around. I'm sitting here I'm amazed at you
know listening at testimonies and reasons for deferrals based on a turnaround in
economy two (2) years from now. I mean let's look at for real. I mean really, what
really happen... what are the family needs? Family needs as Mr. Furfaro has
pointed out, how many percent of people who want to own a house. You can go out
right out of this door today and ask someone on the street, would you rather have a
house and buy an affordable house now or look for rental and stay in a rental for the
next twenty-five (25), thirty (30) years... almost certain we're going to have that and
that's reality. That is reality and it was based on an evaluation so, you know, this is
not a real hard choice for us to do. Look at what is before us, I mean that is what is
before us... the housing policy that was written and passed in 2007, if there are
some discrepancies, there are some concerns, that's not before us now... we're
looking at Kukui`ula, what I think... is fair as the Chair has stated. I know I got
comments of being a Libra trying to balance the scale, but at the same time I can
tell you... for me ninety (90) years is very excessive and with that said I'm ready to
vote for moving this out of the full Council. .
Chair Asing: Thank you. With that we have a motion to approve
and a second. Councilmember Bynum.
Mr. Bynum: Yeah this is going to be my last statement and I'm
not going to ask for a deferral again...
Chair Asing: Sure.
Mr. Bynum: I asked earlier because we had a three (3), two (2)
vote at Committee, there were two (2) people who hadn't kind of showed their cards
until we had the discussion... we had a vote for deferral and there was three (3) to...
four (4) to three (3)... I thought that the Chair might agree to a deferral for two (2)
weeks, a shorter period but I think he's made it clear from his statements that
that's not in the cards and I respect that so I'm not going to ask for a deferral, I
know it's going to lose. But I do want to address in final that... to do... we all
understand... well first of all... you should all be proud of your Housing Agency on
Kauai, they do an outstanding job and there's a great group of people that work
every day to provide a housing in the long term affordable for our families on Kauai
and it's a tough job and... so when in these issues come up before us the first thing I
do is go and talk to them because they are very complex. You know the Chair did
this comparison this versus this... well if you do any kind of business deals you
know that business deals are complex and they have many (inaudible) that
integrate into an agreement and so to compare one agreement with another I don't
think is accurate and I don't believe there's any unfairness so... because those are
complex agreements. I voted for the agreement at Kauai Lagoons, I've already said
because the project was already built and because in my meetings with the Housing
COUNCIL MEETING • - 47 - .August 11, 2010
Agency they you know were able to go through complexities and meetings and I
followed their recommendation. I kind of start with hey I want to support the
Administration and the professionals we have in the government that are tasked
with these things. In this instance for this Kukui`ula vote that we're about to have,
it goes against the recommendations of the Housing Agency, they agreed to some
changes and even though I didn't like those changes, I've tried to amend this bill in
a way that would be (inaudible) and meet with the Administration's
recommendations, unfortunately I wasn't able to do that so... but this was a good
discussion, this is the kind of discussion we should have here. The 860, the bill that
we were referring to took a year or more, right... and it was a effort and I think a
good one and there are many elements to that bill that are very positive and very
good and it's functioning right now, we've had it applied and in a couple instances
but you know by having a policy we create that level of playing field, so we don't
have this complex agreement versus this complex agreement, we try to bring that
fairness and so you know... and in closing I have deep respect for the professionals
at Kukui`ula, I don't agree that this was a good decision for us to go this direction on
the South shore that's irreversible but that decision was made before I was on the
County Council and now I want them to be successful, I want their business plans
to work out for them and in many areas A&B and Kukui`ula, I've been in a position
on the Council to support them right down the line because they're straight up
people, in this instance we had a disagreement and so hence I have my vote today
"no" but I respect all of the choices that people make here.
Chair Asing: Thank you. I guess one... any more discussion
Councilmembers? I just have one point that I think I need to make because I don't
understand Councilmember Bynum saying that the Housing Agency does not agree.
I did not have the opportunity of having the Housing Agency tell me that they do
not agree with any points that were made, so I don't understand where that
statement is coming from, why it is out there and what is it... shall we have the
County Housing Agency here to point out what they don't agree with? I just don't
see it. With that any further discussion? Go ahead.
Mr. Furfaro: Thank you Mr. Chair and I want to thank
everybody for sharing openly their... their... what seems to be an agreement about
our need to revisit an overall housing policy and so forth. For my colleague
Mr. Kaneshiro that was one of the reasons I brought my old document out and I
made it very clear on page twenty-three (23) that our housing strategies should be
put into our planning future with the upcoming General Plan. I think for us to have
all the discussion and not take advantage of having thirty-six (36) members of the
General Plan Commission give us some interpretations as citizens as to the future
planning would be missing the benefit that comes up in the very near future. On
the other piece I want to also point out that there is an opportunity and this is for
the Administration's benefit, there is an opportunity for us to buy some of the
unsold units to add in and perpetuate our housing inventory so we should always
have that on our radar screen and also noting that in my presentation the inventory
for buying is spread out over six (6) years in increments of twenty-five (25) units,
twenty-five (25) units in an attempt to keep that inventory in the workforce housing
COUNCIL MEETING. - 48 - .August 11, 2010
and maybe we could see something coming over from the Housing Department
about when does that trigger so that you know if it... if it has to be a little longer
selling period or so forth so that we can keep as much as we possibly can, we might
ask them when they come up with the final agreement to present to us that they
have something that triggers their rationale turning on or turning off the faucet so
that we can keep as much inventory in place as much as possible. But I want to
thank everybody for the discussion today and I would sincerely ask you to please
take a look at some of the things... I mean this was done by myself and it's kind of
my analytical scenario of what we need to do for housing and our community. So
thank you to my colleagues, thank you Mr. Chair.
Chair Asing: Thank you. Any further discussion? Go ahead.
Mr. Bynum: Just because you raised it and I'll leave it to your
judgment if you want to bring Housing up but Housing agreed to initially and they
did it in writing to this body... agreed to a change to the twenty-five (25) years, they
did not support the ability for the unit to go to market and that's what I was
referring to, if you need to clarify that. And I also want to say that... it was good to
see this document again Mr. Furfaro because...
Mr. Furfaro: I worked hard on it.
Mr. Bynum: You worked hard on it and there's a lot of wisdom
in here...
Mr. Furfaro: Thank you.
Mr. Bynum: And a lot of your policy statements and if we had
more time we could go over them because many of them I agree with and so... yes,
thank you.
Mr. Furfaro: Yeah and may I say Mr. Bynum, I only circulated it
again because my position hasn't changed in three (3) years, we need to do this,
thank you Mr. Chair.
Chair Asing: Councilmember Kawakami.
Mr. Kawakami: You know I just want to say that's a false
statement because you know the Vice Chair sent over a list of questions and as far
as market sales and I'm reading it and it's got Kauai County Housing Agency
stamped on it so I'm assuming it came from them but on number four (4) I'll read it
verbatim... as written the ordinance does not permit market sales. If the Council
were to negotiate a profit sharing agreement with Kukui`ula for any units that are
not sold during the restricted marketing period and then allowed to be sold as open
market sales, we would support the idea that the county receives the percentage of
equity. There's no standard to follow for shared profit in terms of percentage, it
(inaudible) for Maui County workforce housing policy which imposes a fifty percent
COUNCIL MEETING ~ - 49 - August 11, 2010
(50%) split for units sold at market rates and calculates the amount as the
difference between the original sales price of the unit and the actual market sales
price, atwenty-five percent (25%) return would benefit future affordable housing
development while still affording the developer with an opportunity to (inaudible)
development for constructing and marketing the affordable units and so... I mean
it's... and hence the profit sharing amendment that Councilmember Kaneshiro put
in.
Chair Asing: Okay thank you. Councilmember...
Mr. Bynum: I think you should call... because it's not a false
statement... the key word there Mr. Kawakami was "if'... if the Council goes there
then here's the provision...
Mr. Kawakami: And we did.
Mr. Bynum: Ah right and so... you're right the Housing Agency
wanted to say "if' you're going to allow this to go to market then please put some
shared appreciation in there but and so... I have to react to saying "false statement"
because I don't believe it's false...
Mr. Kawakami:
Mr. Bynum:
Chair Asing:
Mr. Bynun:
Fine.
And so...
Okay...
So if you want to call...
Chair Asing: Well why don't we do this, I don't want to call
Housing up... let's... we've had the discussion, we've had enough discussion... roll
call please.
The motion for adoption of Bill No. 2361, Draft 1, on second and final reading was
then put, and carried by the following vote:
FOR ADOPTION:
Chang, Furfaro, Kaneshiro
Kawakami, Asing
Bynum, Kawahara
None
TOTAL - 5,
TOTAL - 2,
TOTAL - 0.
AGAINST ADOPTION:
EXCUSED & NOT VOTING:
Chair Asing: Thank you, motion carried. Okay... yes... no I'll
recognize Councilmember Bynum now.
Mr. Bynum:
Thank you.
Chair Asing: Yeah go ahead.
COUNCIL MEETING • - 50 - August 11, 2010
OTHER DISCUSSION:
Mr. Bynum: So I want to make a motion to put the three (3) bills
that I've circulated on the agenda in two (2) weeks for consideration for first
reading. I want to... I want people to recall that last year we had a very lengthy
discussion about Councilmembers' ability to place things on the agenda. I believe in
any democracy when you get elected you have the right to put your proposals on the
agenda for consideration. I proposed an amendment to our Council's rules to clarify
that. During that discussion and you can look at the minutes, you know my
memory is that it's like...well no we don't need this Council rule change because
there's another mechanism, you can make a motion at the front end of the agenda
when I did earlier today to place something on the amendment and I also heard
Councilmembers commit to vote to put these on the agenda. I don't believe that
that is a mechanism we should have to use. I think any member of this body that
went through the difficult, difficulty of getting elected which isn't easy has a right to
put their proposals before the body and doesn't need a majority vote to do that, but I
am asking for that vote today because I sent memos to the Chair, twice in June and
July 1St for the July 14th agenda and on the June 10th agenda... and on June 10th to
be on the June 23rd agenda, meeting all our criteria and the bill that I was asking
for was not placed on the agenda. There was no response to the memos, there was
no... I asked for a meeting with the Chair...
Mr. Castillo: Excuse me, Council Chair.
Chair Asing: Yes.
There being no objections, the rules were suspended.
Mr. Castillo: Um... I want to be clear on the Sunshine Law and
Councilmember Bynum...
Chair Asing: Okay.
Mr. Castillo: Is going into a discussion or debate on a motion
that he made. I would like to give my opinion and direction to the Council, Council
Chair if I may?
Chair Asing: Go ahead.
Mr. Castillo: From that other seat?
Chair Asing: Go ahead.
Mr. Castillo: Council Chair, members of the Council... County
Attorney Al Castillo. Excuse me for interrupting but the purpose for my
interruption is, so that we're clear on the Sunshine Law and as Councilmember
COUNCIL MEETING ~ - 51 -August 11, 2010
Bynum was proceeding to discuss his reasons for bringing up the motion, I would
like to, if I may Council Chair... give this Council a little bit of direction as far as
how we can proceed on and unagendaed item. And I would just like to balance that
with what we've done in the past and what I have opined in the past on June 3rd of
last year. There was a resolution to clarify Council rules that a Councilmember
wanted to introduce for as an unagenda item and in that case basically I
highlighted Sunshine Law 927(d) which basically said that no item shall be added
to the agenda if it is of reasonably major significance and action will affect a
significant amount of people.
Mr. Kaneshiro: That's right.
Mr. Castillo: In that case back then, more than a year ago... the
balancing test was nominal versus major importance. On June 16, 2009 there was
a motion to add a communication to the agenda and again this was a
communication requested... request for agenda time to discuss access to the agenda,
Council website, etc... in that case again it was a unagenda item and what I opined
in that case was for the Councilmembers to vote, it had to... for the discussion to
take place, you had to have atwo/thirds (2/3) vote. Now today this subject matter is
not on the agenda and my suggestion here for this matter to be properly discussed
this morning is that prior to acceptance or the allowance of this motion to add three
(3) items or items to a future agenda, there needs to be a motion to allow discussion
on this motion to add three (3) agenda items to a future agenda and this motion will
carry if there is a two/thirds (2/3) vote, meaning that there has to be a five (5) out of
seven (7) of the Councilmembers. Then if the motion, if the motion is carried then
you... then the motion to add three (3) items to future agenda items may be
discussed. It is my opinion that this matter is not of a reasonably major
significance that that will affect a significant amount of people in the public, so that
is the reason why I'm suggesting that you take a vote to allow this matter to be
discussed this morning or this afternoon.
Chair Asing: Thank you with that... hang on...
Mr. Furfaro: Ah to the County...
Chair Asing: Mr. Attorney, go ahead.
Mr. Furfaro: Attorney it is my intent to make that motion. I also
want to say that earlier in the discussion there was some questions about the dates
but obviously if we come up with the first reading of this bill, I would like to see
that there are some questions .that are sent over to the County Attorney's Office
before we actually agenda it, which only might be the first meeting in September
but I do want to make a motion at least to have this discussion.
Chair Asing: Thank you.
Mr. Bynum: Second.
COUNCIL MEETING ~ - 52 - August 11, 2010
Mr. Furfaro moved to allow discussion on a unagendaed item, seconded by Mr.
Bynum.
Ms. Kawahara: Wait, wait, wait...
Chair Asing: Okay with... with that do you have something for
County Attorney?
Ms. Kawahara: Discussion, yeah. So there's a second and we're
discussing... Mr. Castillo... just a quick question, you're asking for two/thirds (2/3)?
Mr. Castillo: Because it's not an agenda item under 927 (d) a
two/thirds (2/3) vote is required.
Ms. Kawahara: Okay, in our rules number two (2), quorum and
vote exceptions listed... the only way, the only things that need two/thirds (2/3) vote
of the Council required is to authorize issuance to general bond obligations, to
override the Mayor's veto, and to suspend without pay for not more than one (1)
month, so under the rules number two (2), can you please explain to me how we
have to do a two/thirds (2/3) when those are the only options... the only reasons that
we would have to do it.
Mr. Castillo: Yeah and I see that you are looking at the Council
rules that were adopted when this new Council took effect. Those rules, the
Sunshine Law govern what is happening now. Sunshine Law under Hawaii
Revised Statutes 927(d) requires atwo/thirds (2/3) vote on an unagenda item, that
is the notice requirement.
Ms. Kawahara: Thank you for that clarification.
Chair Asing: Councilmember Bynum.
Mr. Bynum: Thanks for that answer, I accept your judgment. I
have faith that my colleagues will allow me to finish my statement. You know I was
almost done so... thank you.
Chair Asing: Okay thank you Al.
Mr. Furfaro: Mr. Chair, we have a...
Chair Asing: With that go ahead.
Mr. Furfaro: Motion and a second on the floor.
BC: Mic.
COUNCIL MEETING. - 53 -
.August 11, 2010
The meeting was called back to order, and proceeded as follows:
Mr. Furfaro: We have a motion and a second on the floor, looking
for a majority, super majority vote to open discussion on adding an agenda item, I'd
like to call for the vote if we can on that discussion.
Chair Asing: Yes go ahead... let me do that. All those in favor
say aye.
Councilmembers: Aye.
Chair Asing: Motion carried.
Mr. Bynum: Thank you.
Chair Asing: With that, go ahead.
Mr. Bynum: So...
Mr. Furfaro: You're .quite welcome.
Mr. Bynum: So I wanted to just explain why I'm using this
method to you know and I gave my opinion and I don't think it should require a vote
of my colleagues to place something on the agenda but my efforts to place one (1) of
these three (3) bills on the agenda have not been successful. I've sent memos twice
in following all of our, procedures. It didn't show up on the agenda, I didn't get any
written response or verbal response from the Chair for... to these memos. I asked
for a meeting with the Chair and asked him why this wasn't placed on the agenda
and he said that he wanted it to be reviewed by the County Attorney prior to
placement on the agenda, that's an interesting policy so I did some looking and I
have this and I'm going to hand out. In the last sixty-seven (67) bills that are
non-budget bills, that the Council has passed, only in two (2) instances did we have
a County Attorney's opinion in advance, in many instances we never had a County
Attorney's opinion on very (inaudible) bills and so if we wanted to have a policy
discussion or rules discussion that said... that established a criteria that every bill
get reviewed by the County Attorney in advance, I'd probably be open to that but
I'm not open to a policy that's inequitably applied and so I would like to have these
three (3) bills placed on the next agenda for first reading. Generally at first reading
we pass and these are planning bills so they would move, the motion would be move
to the Planning Department, so it won't take a lot of time and I would appreciate
my colleagues' consideration of approving these bills ~to be on the next Council
agenda, thank you.
Chair Asing: Thank you, with that... let me, I guess there needs
to be some explanation on my part... as usual when I make reference to
Councilmember Bynum half truths, again I have to do that... that half truths. Did
we have discussion on this, both Councilmember Bynum, myself and the County
COUNCIL MEETING - 54 - .August 11, 2010
Clerk... the answer is yes we have had. We met, we talked. And the reason I didn't
agree to putting that on the bill is because the County Attorney's Office is currently
reviewing the bill. I will not put an item on the agenda if there is concerns by first
of all... our staff. Our staff writes the bill, the proposal comes from
Councilmembers, Iwant this bill on the agenda, they describe the bill, describe
what they want to do, that goes to our staff... our staff gets a hold of the bill, they
start to write the bill, they have some concerns, they want the bill to be reviewed
by the County Attorney prior to introduction so I... take that information and I say
okay let's send this bill to the County Attorney's Office prior to its getting on the
floor because we do not want to start discussing items that have not been cleared by
the County Attorney. So that's the reason, we did sit down and talk about this with
Councilmember Bynum: Councilmember Bynum just don't want to listen to that.
He's not interested in that. So the discussion was made, it took place... the
meetings are documented, you can ask the Clerk. So anyway that's the reason it
was not put on, it is still being reviewed by the County Attorney's Office and I did
tell Councilmember Bynum, as soon as it comes back, it goes on the agenda, that's
not a problem. He apparently agreed to it but not agreed because he's putting it on
the floor now. So with that Councilmember Furfaro.
Mr. Furfaro: Yes first of all a little clarification here you know...
I'm not seeing the memo, I've not been in your discussions because that's a serial
communication... Ijust want to say right now, I am more and willing to support
looking at this getting on the agenda. What has been raised is the urgency from the
County Attorney's Office to give a reasonable date when this thing can come back
but it is going to come up for first reading on the 25 of August. On the other parts
of this, I want to make it very clear almost a year and a half ago I offered a
resolution to have the rules reviewed... okay... I ended up being the only one voting
for it. I'm sorry Mr. Bynum, I would refrain my question but I think you did not
vote for my... because you had other conditions. I wanted to have sixty (60) day
review. I was able to get a judge to agree to some voluntary time, parliamentarian,
as well as a previous Council Chair, it didn't passed. I'm almost prepared to do that
again but in the meantime, I don't want to know about you guys' ukana, okay?
Your guys' ukana is your ukana... I want the County Attorney to know there's an
urgency on this county to have this Council... to have a legal opinion because I
would like to see it placed on the agenda for the first reading... and do not get
ukana mixed up with opala... I'm not referring to this as your rubbish, I'm referring
this as your business, your things... they need to be discussed openly here, so I will
be supporting this but I also want to send an urgent message to the County
Attorney that it's first reading, we sent it off to the Planning Department, so it just
places a new urgency to getting some kind of legal feedback. Thank you Mr. Chair.
Chair Asing: Thank you. With that Councilmember Kawakami.
Mr. Kawakami: I totally agree too. I think there's common sense
approach, I think both requests are reasonable and fair. On one (1) side we have
one member saying he wants these things on the agenda, on the other side you have
Chair Asing he has concerns with the legality. We have the County Attorney
COUNCIL MEETING ~" - 55 - .August 11, 2010
coming up saying he's reviewing it, so eventually it seems like this thing will end up
on the agenda anyway really soon. So whichever which way you guys want to figure
it out, let me know and let's move forward you know like anything else if it's a bill
that doesn't make sense to me, I'll vote against it... if it makes sense, I'll vote for
it... there's no fear in that... and let's get this show on the road.
Chair Asing: With that Councilmember Bynum.
Mr. Bynum: Yes I met with the Chair, I started...
Chair Asing: Oh now it's coming... I met with the Chair... did
you hear earlier? Nothing, no response... half truths again.
Mr. Bynum: You know... you know Chair...
Ms. Kawahara: Maybe we could.
Mr. Bynum: Could you just calm down... you know... I...
anybody can look at the record, what I said was... I sent two (2) memos and got no
response... I asked for a meeting with the Chair, I had the meeting... the Chair said
you got to get reviewed by the County Attorney first. I'm going to distribute this
memo to anybody who wants, sixty-seven (67) bills that only two (2) of which had
reviewed by the County Attorney in advance. And the first one on the list is the
only bill Mr. Asing has introduced in the last six (6) years I believe, the dog park bill
which was on the agenda prior to any...
Mr. Furfaro: Excuse me... point of order.
Mr. Bynum: Excuse me... I would like...
Chair Asing: Yes, yes...
Mr. Bynum: I have the floor, may I continue?
Mr. Furfaro: I would like to call for a recess.
Mr. Bynum: No, I would like to continue.
Chair Asing: (gavel hit) Recess.
There being no objections, the Council recessed at 12:34 p.m.
The Council reconvened at 2:03 p.m., and proceeded as follows:
Chair Asing: The meeting is now called back to order. with that
we ended up with all kinds of discussions on what we're going to do with the
proposed bill that Councilmember... bills that Councilmember Bynum wants to put
COUNCIL MEETING - 56 - ~ August 11, 2010
on the agenda. I just want to make one (1) thing clear again, to set the record
straight Councilmember Bynum wanted to put this bill on the agenda, I told
Councilmember Bynum together with the County Clerk that it needs to be cleared
with the County Attorney's Office, reason... staff working on the bill felt that there
was some provisions in the bill that could be questionable and so they wanted to
have the County Attorney's Office review the bill first, that has been the normal,
standard process that we have followed throughout as long as I can remember so
that is where we are now. Now evidently Councilmember Bynum does not feel that
that's not necessary. Councilmembers if you want to change that policy, I don't
have any problem with it, but I think that we should work together with our staff
and if they feel that it should be reviewed prior to its being placed on the agenda,
we could have a bill that is on the agenda that does not meet the so-called standards
that the County Attorney's Office might have and therefore we would have
discussions that would be inappropriate and I just didn't want that to happen. So
it's been a standard practice, but Councilmember Bynum just don't want to agree to
that so with that said, I'll open it up now... go ahead Councilmember Bynum.
Mr. Bynum: I believe when we recessed, I had the floor and I'd
like to keep it now...
Chair Asing: Okay, go ahead.
Mr. Bynum: To respond... I'm going to make these documents
available to anyone who would like to see them. I'll reiterate what I said earlier
and if I complete my statement we can move to a vote and let it fall where it may. I
sent a memo on June 10, 2010 according to our protocol to put one of these bills on
the agenda, there was no response in writing, verbally, in any way... I sent the
same memo on July 1St, I wanted these bills on the agenda while we were discussing
farm worker housing and TVR,'s and the focus was on Ag and there were people here
in the audience that could participate... I received no response in writing. I asked
for a meeting with the Chair, I met with the Chair and the County Clerk... I asked
him why this wasn't being put on the agenda and he told me that he wanted it to be
cleared by the County Attorney in advance prior to putting it on the agenda. I had
told him then that I sent this bill over to the County Attorney in December of last
year that I had asked for a response and a review but I hadn't received it.
Mr. Asing is saying that it's standard practice that we get these things in advance.
I just did a review... sixty-seven (67) last bills that came here... only two (2) were
reviewed in advance, many were never reviewed. It has not been our standard in
practice and if we don't have policy discussions about and in attempts to revise the
Council rules have been denied by the Council twice in this last term. So I don't
think it's right to have a standard that is inequitably applied. If I have to get bills
in advance, if everybody has... fine... so you know in our discussions before we said
we can make a motion to put it on the floor. I'm also concerned about what
Mr. Asing has said on several levels... one (1) is, if the staff has concerns they can
veto a bill going on the agenda... if the County Attorney has concerns, I don't
believe they were elected, I don't believe that they are... system allows staff or the
County Attorney to put bills unless they're introduced by a Councilmember who's
COUNCIL MEETING ~ - 57 - August 11, 2010
duly elected. So I don't believe that that is our standard. I have advocated since
I've been on the Council for us to have a discussion about what our policies and
procedures are so if... if we want we can call up the County Attorney but last year
Mr. Asing and he said it today... I'm not going to put this bill on if I, if it doesn't
meet my standards. I don't believe the Chair of the Council has the ability to veto
bills that are being, trying to be placed by any elected member here and if you
would like to ask the County Attorney that, we could but... and just as aside... I
met with Mr. Asing because I'm tired of this conflict between us, I think it's
unnecessary, I don't relish it, I don't think it makes me look good or the Chair and I
think it diminishes this body, that's why I asked for this meeting in the first place.
But in the bottom line I have a choice to either not be allowed to do my job as a
Councilmember to the best of my ability or bring it up in some way which I've tried
to do respectfully. So I appreciate my colleagues all voting to place this on the
agenda in two (2) weeks and we can go through the normal process.
Chair Asing: Councilmember Furfaro.
Mr. Furfaro: Yes...
BC: Mic.
Mr. Furfaro: Thank you. I certainly appreciate Mr. Bynum's
concern and as we reference the body as not visiting the rules, I certainly would like
to exempt myself as I have introduced in past resolutions to review rules that is not
part of this discussion but I again wholeheartedly support a regular review of our
rules. Second item, I do support getting this on the agenda. As you know I did
make the motion to have this discussion and I would like to confirm again with the
County Attorney the urgency for us to have a legal review of this item. As I
understand this would be and I'm looking at the calendar here, something that
would come up for first reading on August 25th looks like and then we have a break
the first week of September recognizing the Labor Day holiday and I would think
that would give us enough time to have legal input into the process because this bill
dealing with zoning issues and certain parameters would in fact go to the Planning
Commission. So Mr. Bynum, I posed that sense of urgency to the County Attorney
and I will be supporting your effort to get this on for first reading on August 25th
meeting. Thank you Mr. Chair.
Chair Asing: Now I take it then for Councilmembers so that I
can do my work too... in order to do my work, I need to explain and I did explain to
you the reason for not putting it on the agenda, as I explained. Now if this is the
wish of the Council then going forward... nothing needs to be reviewed by the
County Attorney's Office if staff feels that there is some concern and it's not
necessary to do that, am I correct?
Mr. Furfaro: No... I didn't make that assumption Mr. Chair.
The assumption I made was... there is an urgency for us to do our business and we
COUNCIL MEETING - 58 - August 11, 2010
have always had a good relationship with the County Attorney's Office and I'm
asking them to do the review within that period of time.
Chair Asing: So the question is this... supposing it does not get
reviewed and it gets on the agenda, is that what we want to have happen? It's...
you know it's your call Councilmembers.
Mr. Furfaro: No... I understand what you're saying Mr. Asing.
These bills are not all that complicated, they have some issues that deal with
guidelines that can or cannot be subject to interpretation of an individual rights. I
think those are some of the things that from now which is August 11th to August
25th, I would hope you know if we need to hear from the County Attorney, that's fine
but it's only going to get to a first reading and then actually there's some time until
the September meeting...
Chair Asing: Council...
Mr. Furfaro: For us to even get a response.
Chair Asing: Okay... Councilmember... here's the question... if
the bill is introduced, the bill could have some legal questions that should have been
addressed. Now you don't want this on the floor if it is illegal to do some of the
items that is here, that has not passed the County Attorney's Office, so you would
not want it even on first reading because it has not cleared. And that's what I'm
trying to prevent. I don't think you want to do that and if Councilmembers feel
that's okay, it's okay with me... I don't have a problem with it.
Mr. Furfaro: Well I want to make sure I'm very clear here
Mr. Asing when you assume...
Ms. Kawahara: Yeah.
Mr. Furfaro: That what we're doing here is illegal, I...
Chair Asing: No I'm not saying it's illegal...
Mr. Furfaro: No... I'm saying that we might get interpretation
from the County Attorney that's something...
Chair Asing: Yes.
Mr. Furfaro: Is illegal...
Chair Asing: Yes, yes.
Mr. Furfaor: We won't know that until they actually reviews
some of the parameters. I would hope in two (2) weeks they could red flag some of
COUNCIL MEETING ~ - 59 - .August 11, 2010
those items and be able to tell us that before the August 25th meeting, so that's the
urgency I'm asking for. For me, myself ethically I would not pursue anything that
is referenced to them as being illegal by this body, so I hope I clarified that question.
Chair Asing: Oh okay that... it doesn't clarify it for me but I'm
going to accept it and we have discussion. With that Councilmember Kawakami
and then Councilmember...
Mr. Kawakami: You know Council Chair, I see exactly your concern
and I think, I think if you're going to have somebody introduce a bill and they're
going to go against what the staff's recommendation is going to be or if they want to
rush through it instead of getting an opinion, then that's just going to reveal the
kind of fabric that you know the bill is going to be made of and if it gets introduced
and then there's some legal challenges later on because an individual decided not to
give it due process, then so be it... it's on the back of the introducer of the bill. I
know for... I think one of the bills that's on your list must be the cell phone bill...
Mr. Bynum: You had legal review in advance.
Mr. Kawakami: Yeah that got legal review in advance and that was
a personal choice and I felt that you know it should get its legal review prior to it
being introduced and if you don't feel that way and you feel confident that this will
stand, let it go and if it gets challenged later on, it's a reflection of the introducer.
Chair Asing: Okay, any further discussion? Councilmember
Bynum.
Mr. Bynum: Yeah I... as I said previously and I've wanted to
have a discussion about our policies and procedures to see that they're equitably
applied... if we wanted to establish a policy that every bill goes to the County
Attorney in advance and gets review, I'd probably support that. But lucky we have
a public record, public records are not easy to access in Kauai but the public record
reflects that sixty-seven (67) bills, only two (2) of them had legal review in advance
to them being placed on the agenda. Most of them never had any legal review so it's
not correct that it has been our standard, you can look at the public record, I'm
going to make these documents available on the web at Kauaiinfo.org and anybody
can look at them, themselves. I'm also concerned that we brought the staff into
this, no staff member ever informed me that they had difficulties with this and you
know now I'm hearing that the staff said something was illegal in this bill. I don't
believe that's accurate and I even have an issue of why the Chair would be
discussing a bill I was working on with the staff. You know we really do need to
look at our policies because I recognize that the Chair is the administrator of the
staff, the coordinator. But he is not superior to other Councilmembers, he is not our
boss and we have a right under the law, I think, to do our due diligence and do our
work. And so you know, I've asked that we have meetings amongst ourselves to
have this discussion to have Council rules... but the facts are clear to me and I don't
think... you know I value the County Attorney's opinion and I think Mr. Kawakami
COUNCIL MEETING • - 60 - .August 11, 2010
hit the nail on the head. If I was going to put something forward that was clearly
inappropriate, I looked foolish. Right? And I've already said the main bill that I'm
proposing here today, I sent to the County Attorney in December. I... you know
already we missed the timeframe, this bill has to go to Planning, it's unlikely that
we can determine this during this session because with our timeframes it's likely
not going to happen until after an election when we have a different set of
Councilmembers, that was the other reason I want to put it on, so this body could
address it. So this is very uncomfortable to have these situations and to have my
Council Chair tell me that I give half truths, which I don't think is accurate and to
question my veracity and to say things that I think the public record made clear
that are not accurate. There has not been a standard that reviews happen in
advance. If... including many.bills and you can all go look at this document and see
and it's all public record.
Chair Asing: Okay. Any further discussion? Yes, go ahead.
Mr. Furfaro: Yes. You know I also want to make a... kind of a
standard practice known to and if it's contrary to anything that I said regarding our
legal reviews I would appreciate if the County Attorney would correct me..., but you
know this bill will move through my Committee and before it gets to my Committee,
it will go to the Planning Department. The Planning Department has a standard,
I'm sorry a standing attorney as well that's there. So you know... in this case many
times when a bill at first reading is looked at, at the Council level and it's
something we're considering we want to have pursued but when we send it to
Planning, there is a standing attorney there who will also review this material so I
want to make it very clear, I'm not asking for two (2) reviews here as a planning
item. We fund and staff an attorney at the Planning Department for the same
purpose. Thank you Mr. Chair.
Chair Asing: Okay with that said... let me just make a
comment...
Ms. Kawahara: Hoy!
Chair Asing: You know the... did you want to say something?
Ms. Kawahara: Did you want to go last or?
Chair Asing: No, go ahead.
Ms. Kawahara: Or did you just not see me?
Chair Asing: No, go ahead.
Ms. Kawahara: Oh okay. I just didn't know if you wanted to go
first or last?
COUNCIL MEETING
Chair Asing:
-61-
I'm sorry. No, go ahead.
.August 11, 2010
Ms. Kawahara: Oh okay. I just wanted to say I find this
completely ludicrous. Our bills go through scrutiny from the County Attorney to the
public to no end. I find it troubling that a unilateral decision was made and in this
case specifically that it's not going to hit the agenda, there was no discussion with
the body, there was no discussion at all. Because you know it's true... there is no
written policy if Mr. Chair could show me something that says... you know anytime
you want to introduce a bill to go on the agenda and it says it has to have County
Attorney review, please show it to us... otherwise I am very comfortable with the
intelligence of everybody that gets elected to this office that they can decide how
they want to put their bill forward. It's not . a unilateral decision, every elected
official on this body can put something on the agenda, it is not something that's
unilaterally can do behind the... behind the doors to say yeah... you know I don't
like it, I don't want to do that now. And again I also want to emphasize that I
concur with Mr. Furfaro that our bills that we go through that are significant or
have significant importance go through many, many, many... much scrutiny to try
to paint it into something that oh do all the members agree that we don't need to
put anything ever in front of the Attorney is, is I think... is just an over
exaggeration and just unfitting in a discussion about something like this. It's not
yes or no whether or not it's going to go to the attorney that's not what we're
answering... we're saying that everybody here has the right to put something on the
agenda, everybody here has brains enough to know, they've been elected, they have
every right to do it and everyone here knows that everything we want to go... have
importance to this county goes through scrutiny on the County Attorney level, on
the Administration side, on the public side. So I would definitely support putting
these on the agenda.
Chair Asing: Okay. Any further discussion. If not, let me make
one other thing clear. As you know the plastic bag bill... did go through review of
the County Attorney's Office and in the County Attorney's Office review, there were
changes that were made from the County Attorney's Office because they felt that it
was unconstitutional on some of the things that was in... on the bill. Don't look at
the County Attorney now because that County Attorney did not review the bill, it
was reviewed by another County Attorney. So that's what I'm making reference to.
The plastic bill ordinance went through the County Attorney's Office, it was found
unconstitutional by the County Attorney's Office and therefore changes were made
before it was put on the floor and this is the reason and rationale behind what I'm
trying to say is the purpose of the process that we have been following all of these
years but I don't have a problem if the process is going to be changed, then so be
it.... That's not a problem with me but that has happened. So with that... I think
we had enough discussion, let me get the public...
Mr. Bynum: Mr. Chair?
Chair Asing: Let me get the public...
COUNCIL MEETING •
Mr. Bynum:
Mr. Kaneshiro:
Chair Asing:
Mr. Bynum:
Mr. Furfaro:
Mr. Kawakami:
-62-
• August 11, 2010
I'd like to respond to the allegation you just made...
Oh gosh...
Sure go ahead.
I'm trying to get to a vote here...
If you like I can call for a vote now?
Call for the vote please.
Mr. Bynum: I believe the statement just made by Mr. Asing is
incorrect and I will ask for a agenda item to bring it here to have a discussion about
that later.
Mr. Furfaro: Thank you Mr. Bynum...
Mr. Kawakami: Can I call for the vote?
Chair Asing: I think we might be in error for not allowing the
public to speak so I was going to ask for the public...
Mr. Furfaro: Okay I'll withdraw my request to call for the vote.
Chair Asing: Okay with that... Anne.
There being no objections, the rules were suspended.
Ms. Punohu: My name is Anne Punohu. Thank you very much
for your indulgence and allowing the general public to speak on what we've been
witnessing going between Councilmembers today, but I'm going to say two (2)
things that you all might find very interesting and you might want to think about
it. At the State level when I went to... help to write a piece of legislation a couple of
years ago, I was all excited you know... had it all written, had it all figured out and
I took it to a Representative and I had to wait. Guess what I had to wait for, I had
to wait for the Legal Department to go through every bit of that bill and make
absolutely certain that there was nothing there that can come back to bite the
person that was going to be introducing the bill and that the bill was solidly legal.
Now that being said, I also feel that Mr. Bynum has a point because if you ask for
something to be legally reviewed, there should be a certain amount of set time that
that bill must be reviewed by. And if it's not reviewed by a certain time, then that
bill should automatically be allowed to be put on the agenda and brought forth to
the general public; however, I also agree that every single Councilmember has the
right to write their bills and introduce their bills. And I also feel and I think the
general public watching this because I'm just the general public right so that's why
I asked to speak... what we see is that there is a lack of continuity in the policy and
COUNCIL MEETING ~ - 63 - .August 11, 2010
because of that today we have this discourse. So perhaps in the future it would be
very important that this Council think very seriously about making laws that are
continuous and are equitable and one thing said is, I understand that if you have a
package of bills on a certain subject matter, that are all the same subject matter, it
is my opinion and just my logical observation that you should always look at
packaging those bills all together and make sure that you have all of our County
Attorney's opinions and all your ducks in the row for the entire package and I
believe that that was what Mr. Bynum was trying to do. However I understand
your point Uncle Kaipo too because that's at the State level and I don't see any
reason why the county shouldn't be at the same level as well, judging the types of
bills we have going forward in this modern day. So you're both right but you're
both... you know you're both right. But I just understand his frustration though
because those bills had to do with agriculture and we were dealing with agriculture
and that was the subject matter and I think what he was trying to say is that it was
just taking so long and I think... I'm at the end of my comment and I really thank
you very much for allowing me the opportunity to comment. Thank you.
Chair Asing: Thank you. Councilmember Bynum.
Mr. Bynum: Anne, I think you have some good ideas and that's
the kinds of policy discussion that this Council should have and Mr. Furfaro
introduced a resolution to... just that... the Council said no we don't need to bring
in Mr. (inaudible) and any outside people, we can do it internally. And so I
introduced a resolution to have a internal committee and the majority of the
Council rejected that. So we never had that policy discussion and I agree with you,
we should and I want to tell you and I've said there were two (2) bills that were
reviewed in advance, out of the last sixty-seven (67), the other one was the plastic
bag ban bill. The public record indicates that Lani Kawahara and I asked for a
review in March, received it in April, and the bill wasn't introduced until July.
Right? So we did. And what Mr. Asing was referring to was a review that he asked
of the County Attorney without even informing the authors of the bill and we've
addressed those issues too and the bills that I'm introducing have been in
consultation with attorneys both in and outside of the county, right so, I do my
homework, I think of things thoughtfully and I don't disagree that we should have a
policy about review. And you're right, we would need some expectation of
performance from the County Attorney or (inaudible) I don't mean to criticize the
County Attorney because they've had a hugely full agenda since Mr. Castillo took
over... so... thanks for your comments.
Chair Asing: Thank you. Councilmember Bynum did you say
that the plastic bill was reviewed by the County Attorney?
Mr. Bynum: In advance.
Chair Asing: In advance, oh okay... well that's just what I said
and you confirmed it so thank you. Anyone else in the audience, if not... I'd like to
call the meeting back to order and...
COUNCIL MEETING. - 64 - August 11, 2010
The meeting was called back to order, and proceeded as follows:
Mr. Furfaro: Yes I would like to and thank you Anne and Tim
for reminding us that twice, one attempts and one attempt by myself to review the
rules but... I would like to call for the vote on this please.
Chair Asing: All those in favor say "aye."
Councilmembers: Aye.
Chair Asing: Motion carried... Yes.
Mr. Nakamura: Council Chair just for the record I don't... there
was not a motion on...
Mr. Furfaro: I'd like to make a motion that we move to... I'm
sorry we had our lunch break in between there Mr. Clerk and we had a timeout that
I requested... so may I make a motion to move these three (3) bills on a future
agenda of August 25th I believe.
Ms. Kawahara: Second.
Mr. Furfaro moved to place the three (3) bills requested by Mr. Bynum on the
August 25, 2010 Agenda for first reading, seconded by Ms. Kawahara.
Chair Asing: Any discussion?
Mr. Kaneshiro: I have...
Chair Asing: Yes.
Mr. Kaneshiro: Now that is talking about the three (3) bills, I have
concern with one (1) of the bill and I think that bill needs to be reviewed by the
County Attorney first before I make a vote to place it on the agenda and it's a
matter of taking or being prejudice upon so... I just wanted to point that out so I
won't be supporting any of this... at this point.
Mr. Bynun: Okay.
Mr. Kaneshiro: One of the bills.
Chair Asing: Let me, let me make a comment on that and this is
what I'm talking about... that's all I'm talking about. Do we have the review or
don't we have a review. If we vote now... the way the motion is on the floor then
there won't be a review and see I have one (1) Councilmember who has concern
about the legality of it and that was what we're trying to prevent, the possible
COUNCIL MEETING ~ - 65 - .August 11, 2010
illegalities that could exist, so I just want to explain that, so with that
Councilmember Furfaro.
Mr. Furfaro: Yes to just make sure we're all on the same page
here and we didn't jump to a conclusion, let me say it to the County Attorney across
the table. My vote to place this on the agenda is based on the urgency I'm now
placing on this review whether it's on this body or not, I am also pointing out as
Planning Chair, we have given you the resources to also staff legal presence within
the Planning Department and the Planning Commissioners, so if there is a time to
raise a red flag about the issue, we have two (2) weeks to do that. On the other
note, I would like to recognize what Councilmember Kaneshiro said and perhaps we
should take individual votes on these three (3) items and Mr. Clerk is that proper?
Mr. Nakamura: Council Chair that would be the Council's call on
how they wanted to implement this motion. I think Vice Chair Furfaro made a
suggestion that you do...
Chair Asing: Okay why don't we do this then, I think that's a
good idea but again what's going to happen is that you know each Councilmember
now will look at the bill and make a decision on whether they feel it should be
reviewed or shouldn't be reviewed and then we'll take the vote individually on each
item. Yes, go ahead.
Mr. Bynum: I have no issue with voting individually as long as
we get to a vote today but you know I can guess the bill that Mr. Kaneshiro is
referring to because I really believe in the democratic process, I've discussed this
with Planning, with lots of citizens. One of these three (3) bills I think is worthy of
discussion and consideration, I may not even vote for it in a long run after I learn
all of the input that I'll get from Mr. Kaneshiro and others and if he thinks the bill
isn't worded, he can vote against it. And Mr. Asing said if we vote for it today, it
won't get review... of course it will get reviewed. If we ask for a review, we will get
it. We're just beginning a process.
Chair Asing: Okay. Why don't we do this then, we're going to
take a ten (10) minute recess, Councilmembers review the bills individually and
then we'll just vote on the individual bills.
There being no objections, the Council recessed at 2:38 p.m.
The Council reconvened at 2:52 p.m., and proceeded as follows:
Chair Asing: The meeting is now called back to order, with that
I'd like to have the County Attorney up... we're going to end up Councilmembers
unless you disagree with me, we're going to just take the three (3) bills as a whole
and just vote on the three (3) bills... I think you all had an opportunity to look at
the three (3) bills, so I have the County Attorney up and I'm just going to ask the
County Attorney... have you seen the bills?
COUNCIL MEETING. - 66 - ~August.ll, 2010
There being no objections, the rules were suspended.
Mr. Castillo: Council Chair with all due respect I hesitate to
even answer that question, I'm sorry...
Chair Asing: Oh okay.
Mr. Castillo: Because the reason is because on the Sunshine
Law, I don't want to violate it myself.
Chair Asing: Okay.
Mr. Castillo: You know the subject matter is what the motion is
whether or not it can be agenda in the future date and I wouldn't... I don't want to
answer that question, I'm sorry. I would be in violation of the Sunshine Law that's
why, in talking specifically about the bills.
Chair Asing: So it would be improper for me to ask you i£..
Mr. Castillo: You...
Chair Asing: You have some legal concerns?
Mr. Castillo: Yeah you can ask me that...
Chair Asing: Oh okay.
Mr. Castillo: But for me to answer and we get outside of the
non-agenda item and we're already entertaining this subject matter via an
exception to the Sunshine Law, I wouldn't want to violate it myself. I'm sorry.
Chair Asing: Okay... so let me just ask that... do you see some
legal concerns with the bills?
Mr. Castillo: I cannot answer that question.
Chair Asing: Okay.
Mr. Castillo: Because of the Sunshine Law, I'm sorry.
Chair Asing: Okay, thank you. I'd like to call the meeting back
to order and we have a motion on the floor now. With that let's have a roll call vote
please?
The meeting was called back to order, and proceeded as follows:
COUNCIL MEETING ~ - 67 - August 11, 2010
Mr. Nakamura: Council Chair, my understanding is if the motion is
to place...
Chair Asing: All the bills...
Mr. Nakamura: The three (3) bills on the August...
Chair Asing: Three (3) bills.
Mr. Nakamura: August 25th...
Mr. Furfaro: August 25th was the motion.
Chair Asing: Yes.
The motion for three (3) bills requested by Mr. Bynum (attached hereto) to be placed
on the August 25, 2010 Council agenda was then put, and carried the following vote:
FOR PASSAGE: Bynum, Chang, Furfaro, Kawahara,
Kawakami, Asing TOTAL - 5,
AGAINST PASSAGE: Kaneshiro, 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.
Mr. Fufaro: Mr. Chair before...
Chair Asing: Yes, go ahead.
Mr. Furfaro: May I have a moment of personal privilege?
Chair Asing: Sure.
Mr. Furfaro: Thank you. I just want to say to my colleagues, I
hope you all understand my motion for a recess just before we went to lunch and so
forth but I also want to compliment everybody on their return and the decorum that
we followed in moving on this item, thank you all very much and hopefully we will
go forward from here. Thank you Mr. Chair.
Chair Asing: ~ Okay, with that... County Attorney.
There being no objections, the rules were suspended.
Mr. Castillo: Thank you Council Chair.
COUNCIL MEETING. - 68 - August 11, 2010
EXECUTIVE SESSION: Pursuant to Haw. Rev. Stat. ("H.R.S.") §92-7(a), the
Council may, when deemed necessary, hold an executive session on any agenda
item without written public notice if the executive session was not anticipated in
advance. Any such executive session shall be held pursuant to H.R.S. §92-4 and
shall be limited to those items described in H.R.S. §92-5(a). (Confidential reports on
file in the County Attorney are Office and/or the County Clerk's Office. Discussions
held in Executive Session are closed to the public.)
ES-462 Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4),
and Kauai County Charter Section 3.07(E), the Office of the County Attorney
requests an executive session to discuss with the Council and requests authority
relating to the execution of agreements concerning County liabilities at its facilities
under the Endangered Species Act, 16 United States Code § 1531, et seq., and the
Migratory Bird Treaty Act, 16 United States Code § 703, et seq. This briefing and
consultation involves the consideration of the powers, duties, privileges, immunities
and/or liabilities of the Council and the County as they relate to this agenda item.
ES-463 Pursuant to Haw. Rev. Stat. sections 92-4 and 92-5(a)(4), and Kauai
County Charter section 3.07(E), the purpose of this executive session is to allow the
County Attorney to consult with the Council on questions and issues pertaining to
the Council's and County's powers, duties, privileges, immunities, and liabilities
regarding Claim C 2010-146, relating to Lihu'e Court Townhomes Corporation's
request to compromise its real property taxes for the County tax year 2009-2010,
and to request Council approval in conjunction with this claim. 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. Chang moved to convene in Executive Session at 2:53 p.m, as recommended by
the County Attorney, seconded by Mr. Furfaro, and unanimously carried.
There being no objections, the meeting was in recess at 2:53 p.m.
ADJOURNMENT.
The meeting was called back to order at 4:40 p.m., and there being no further
business, the meeting was adjourned.
Respectfully submitted,
\~~
PETER A. NAKAMURA
County Clerk
/ds
• •
ORDINANCE NO.
BILL NO.
A BILL FOR AN ORDINANCE
TO AMEND CHAPTER 8 OF THE KAUAI COUNTY CODE 1987, AS AMENDED,
RELATING TO THE COMPREHENSIVE ZONING ORDINANCE
(DENSITY IN THE AGRICULTURE DISTRICT)
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF KAUAI, STATE
OF HAWAII:
SECTION 1. Findings and Purpose:
The Constitution of the State of Hawaii has articulated the importance of
conserving and protecting agricultural lands, promoting increased agricultural
self-sufficiency, and ensuring the availability of agriculturally suitable lands. The
purpose of this Bill is to honor this Constitutional mandate to bring about long term
policies to manage and maintain the viability of agricultural land. The bill further
seeks to establish the simple premise that the subdivision of agricultural lands
should be for agricultural purposes and that subdivision for other purpose should
entail rezoning consistent with the General Plan and related Community
Development Plans.
First, it is increasingly apparent that more stringent controls on the use of
agricultural land are required to ensure the viability of agricultural production in
the County. With the passage of time, some of the assumptions underlying past
legislation governing the use of agricultural lands, such as Hawaii Revised
Statutes (HRS) chapter 205, have changed or new circumstances have arisen that
demonstrate HRS chapter 205, as currently drafted and executed, cannot meet the
concerns of the County regarding the use, preservation, and protection of
agricultural lands for agricultural purposes.
Second, the public record contains numerous references to problems and
inconsistencies in the regulation of agricultural lands in the County, particularly
the proliferation of "agricultural condominiums" on agricultural land and the
speculative nature of investing in Agricultural zoned land to realize a profit through
luxury home development which in nature and price run counter to the purpose of
agriculture zoned land.
Third, the proliferation of agricultural condominiums has led to development
in lands never intended for such densities and a sprawling of development, all of
which overtaxes the County's infrastructure in terms of roads, water, wastewater
and other services.
Fourth, the County Council believes that the preservation and protection of
agricultural land is of sufficient concern to merit legislation that allows for greater
restrictions on the number of dwellings on agricultural land.
~!i~ . r :k'~ }
n
u
SECTION 2. The Section 8-7.5 of the Kauai County Code is amended
to read as follows:
"Sec. 8-7.5 Permitted Residential Densities.
[Permitted residential densities shall be calculated as follows:]
~1) For parcels in existence as of the effective date of this ordinance,
permitted residential densities shall be as follows:
larger.
[(1)]~A~ One (1) dwelling unit for each parcel one (1) acre or
[(2)]~ One (1) additional dwelling unit for each additional three
(3) acres in the same parcel, provided that no more than five (5) dwelling
units may be developed on any one (1) parcel.
[(3)],(C) A parcel or contiguous parcels in common ownership of
record existing prior to or on September 1, 1972, which is smaller than
one (1) acre, may develop one (1) dwelling unit.
(2) For lots resulting from the subdivision of land in the agriculture
district that receives final subdivision approval after the effective date of this
ordinance, the permitted residential density shall be one (1) dwelling unit for
each lot."
SECTION 3. Severability. If any provision of this ordinance or
application thereof to any person or circumstance is held invalid, such invalidity
shall not affect other provisions or applications of this ordinance which can be given
effect without the invalid provision or application, and to this end, the provisions of
this ordinance are declared to be severable.
SECTION 4
This Ordinance shall take effect upon its approval.
INTRODUCED BY:
TIM BYNUM
Date of Introduction:
Lihu`e, Kauai, Hawaii
V:\CS OFFICE FILES\BILLS\2010\2378 Ag Density.doc/pm
2 ,~
~~~
•
ORDINANCE NO. BILL NO.
A BILL FOR AN ORDINANCE TO AMEND CHAPTERS 8 AND 9 OF THE KAUAI
COUNTY CODE 1987, AS AMENDED, RELATING TO THE
SUBDIVISION OF AGRICULTURAL LAND
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF KAUAI, STATE
O F HAWAII:
SECTION 1. Findings and Purpose:
The Constitution of the State of Hawaii has articulated the importance of
conserving and protecting agricultural lands, promoting increased agricultural
self-sufficiency, and ensuring the availability of agriculturally suitable lands. The
purpose of this Bill is to honor this Constitutional mandate to bring about long term
policies to manage and maintain the viability of agricultural land. The bill further
seeks to establish the simple premise that the subdivision of agricultural lands
should be for agricultural purposes and that subdivision for other purpose should
entail rezoning consistent with the General Plan and related Community
Development Plans.
First, it is increasingly apparent that more stringent controls on the use of
agricultural land are required to ensure the viability of agricultural production in
the County. With the passage of time, some of the assumptions underlying past
legislation governing the use of agricultural lands, such as Hawaii Revised
Statutes (HRS) chapter 205, have changed or new circumstances have arisen that
demonstrate HRS chapter 205, as currently drafted and executed, cannot meet the
concerns of the County regarding the use, preservation, and protection of
agricultural lands for agricultural purposes.
Second, the public record contains numerous references to problems and
inconsistencies in the regulation of agricultural lands in the County, particularly
the proliferation of "gentlemen farm estates" on agricultural land and the
speculative nature of investing in Agricultural zoned land to realize a profit through
luxury home development which in nature and price run counter to the purpose of
agriculture zoned land.
Third, the proliferation of agricultural subdivisions has led to development in
lands never intended for such densities and a sprawling of development, all of which
overtaxes the County's infrastructure in terms of roads, water, wastewater and
other services.
Fourth, the County Council believes that the preservation and protection of
agricultural land is of sufficient concern to merit legislation that allows for greater
review, public comment, conditioning, and if necessary denial of subdivision of
agricultural land.
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Fifth, the amendment of the CZO to move the subdivision of agricultural land
to a Class TV permit process allows the full Planning Commission to review,
condition, and if necessary deny subdivisions of agricultural land is appropriate as
the subdivision of agricultural land results in a gain in density and entitlements.
SECTION 2. The Section 8-7.7 of the Kauai County Code is amended
to read as follows:
"Sec. 8-7.7 Permits Required.
No construction or other development .for which standards are
established in this Chapter shall be undertaken within any Agriculture
District except in accordance with a valid zoning permit. The flowing zoning
permits, in accordance Article 19, shall be required for the following
activities.
(1) Class I Permit. A Class I Permit shall be obtained for
construction or development on a parcel where:
(A) the parcel is not located in a Constraint District or a
Special Treatment District and is not large enough to qualify for more
than one (1) dwelling unit under the density provisions of this Article;
and
(B) the construction or development does not require a Use
Permit or a Variance Permit.
(2) Class II Permit. A Class II Permit shall be obtained for
construction or development on a parcel where:
(A) the parcel is not located in a Constraint District or a
Special Treatment District and is qualified for more than one (1)
dwelling unit; and
(B) the constraint or development does not require a Use
Permit or a Variance Permit.
(3) Class III Permit. A Class III Permit shall be obtained for
construction or development on a parcel where:
(A) for construction or development of a parcel for which a
Class I or Class II Permit would otherwise be obtainable except that
the parcel is located in a Constraint District or a Special Treatment
District.
(4) Class IV Permit. A Class IV Permit shall be obtained for
construction[for] or other development on a parcel where:
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(A) [for] construction or development for which a Class I, II,
or III Permit would otherwise be obtainable except that a variance or a
use permit is required[.] i or
~B) the applicant seeks approval of the subdivision of a parcel
located within the State Land Use Agricultural District.
(5) To obtain any permit, the applicant shall show compliance with
the Standards established in this Article and shall submit a plot plan and
other information as required by Sec. 8-3.8(d)."
SECTION 3. Chapter 9, Kauai County Code, as amended, is amended
by adding a new section to read as follows:
"Sec. 9-2.15 Agricultural Subdivisions
~1) Any subdivision on land within the State Land Use Agricultural
District shall be consistent with the goals of HRS 205, Section 8-7 of the
Kauai County Code, and the General Plan.
(2) Any subdivision of land within the State Land Use Agricultural
District shall be required to obtain a Class IV Permit.
(3) The Planning Commission shall not approve anv subdivision
unless the Planning Commission makes a finding that the agricultural and
development master plan satisfactorily details the nature of the proposed
operation, which shall include:
i) An agricultural plan detailing the farming activity;
ii) A proposed source of water sufficient to
accommodate the proposed farming activity
iii) A business plan including feasibility and demand
fo_r the proposed farming activity and anv concurrent but related
non-agricultural operations such as agrotourism that appears
adequate to generate a minimum of $35,000.00 of gross revenue
for each farm dwelling unit allowed;
iv) An analvsis of prime agricultural land based on
soils, slope, exposure etc. and dedication of such areas for
agriculture operations;
v) Building envelopes for farm dwellings barns
storage sheds and anv other agriculturally related building or
structure laid out to preserve continuous tracts prime land for
agriculture operations; and
vi Design standards, including maximum farm
dwelling size, that preserves the agricultural character of land."
SECTION 4. Severability. If any provision of this ordinance or
application thexeof to any person or circumstance is held invalid, such invalidity
shall not affect other provisions or applications of this ordinance which can be given
effect without the invalid provision or application, and to this end, the provisions of
this ordinance are declared to be severable.
SECTION 5. This Ordinance shall take effect upon its approval.
INTRODUCED BY:
Date of Introduction:
Lihu`e, Kauai, Hawaii
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TIM BY M
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ORDINANCE NO. BILL NO_
A BILL FOR AN ORDINANCE
TO AMEND CHAPTER 8 OF THE KAUAI COUNTY CODE 1987, AS AMENDED,
RELATING TO THE COMPREHENSIVE ZONING ORDINANCE
(BUILDING ENVELOPES IN THE AGRICULTURE AND OPEN DISTRICTS)
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF KAUAI, STATE
OF HAWAII:
SECTION 1. Findings and Purpose:
The Constitution of the State of Hawaii has articulated the importance of
conserving and protecting agricultural lands, .promoting increased agricultural
self-sufficiency, and ensuring the availability of agriculturally suitable lands. The
purpose of this Bill is to honor this Constitutional mandate to bring about long term
policies to manage and maintain the viability of agricultural land. The bill further
seeks to establish the simple premise that development on agricultural lands should
be for agricultural purposes and that development for other purpose should entail
rezoning consistent with the General Plan and related Community Development
Plans.
First, it is increasingly apparent that more stringent controls on the use of
agricultural land are required to ensure the viability of agricultural production in
the County. With the passage of time, some of the assumptions underlying past
legislation governing the use of agricultural lands, such as Hawaii Revised
Statutes (HRS) chapter 205, have changed or new circumstances have arisen that
demonstrate HRS chapter 205, as currently drafted and executed, cannot meet the
concerns of the County regarding the use, preservation, and protection of
agricultural lands for agricultural purposes.
Second, the public record contains numerous references to problems and
inconsistencies in the regulation of agricultural lands in the County, particularly
the proliferation of "gentlemen farm estates" on agricultural land and the
speculative nature of investing in Agricultural zoned land to realize a profit through
luxury home development which in nature and price run counter to the purpose of
agriculture zoned land.
Third, the proliferation of agricultural subdivisions has led to development in
lands never intended for such densities and a sprawling of development, all of which
overtaxes the County's infrastructure in terms of roads, water, wastewater and
other services.
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Fourth, the County Council believes that the preservation and protection of
agricultural land is of sufficient concern to merit legislation that allows for greater
review, public comment and conditioning of houses whose building footprint exceeds
a certain square footage.
SECTION 2. Section 8-7.2 of the Kauai County Code is amended to
read as follows:
"Sec. 8-7.2 Generally Permitted Uses And Structures.
The following uses and structures are permitted in agriculture districts:
(1) Accessory structures and uses
(2) Aquaculture
(3) Diversified agriculture
(4) Forestry
(5) Grazing
(6) Historic sites
(7) Intensive agriculture
(8) Livestock, poultry, and piggeries, except as provided in
Sec. 8-7.3
(9) Minor food processing related to agricultural products
(10) Orchards and nurseries
(11) Outdoor recreation
(12) Pet keeping and raising, except as provided in Sec. 8-7.3
(13) Public parks and monuments
(14) Resource management
(15) [Single family detached dwellings] Farm dwellings where the
building envelope for the dwellinggarage, lanai, deck or anv other
improvement, excluding a garage, used in connection with the farm dwelling
does not exceed 2,500 square feet
(16) Specialized agriculture
(17) Undeveloped campgrounds
(18) Warehousing, storage and packing of plant products
(19) Wildlife management"
SECTION 3. Section 8-7.3 of the Kauai County Code is 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:
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(1) Animal hospitals
(2) Cemeteries
(3) Churches, temples and monasteries
(4) Commercial recreation
(5) Construction and worker temporary housing
(6) Development campgrounds
(7) Golf courses
(8) Mineral extraction and quarries
(9) Pet keeping and raising proposed within five hundred (500) feet
of any Residential District
(10) Poultry and piggeries when to be located within three thousand
(3000) feet of any Use District
(11) Private and public utility facilities
(12) Schools and day care centers
(13) Transportation terminals
(14) Farm dwellings where the building envelope for the dwelling
lanai, deck or anv other improvement excluding a garage used in connection
with the farm dwelling exceeds 2 500 square feet
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."
SECTION 4. Section 8-8.2 of the Kauai County Code is amended to
read as follows:
"Sec. 8-8.2 Generally Permitted Uses And Structures.
(1) Accessory uses and structures
(2) Day-use areas
(3) ~~ Diversified agriculture
(4) Livestock and grazing, except as provided in Sec. 8-8.3
(5) Outdoor recreation
(6) Parks and monuments
(7) Private recreation areas
(8) Resource management
(9) Single family detached dwellings and farm dwellings
constructed within the State Land Use Agricultural District where the
building envelope for the dwelling lanai deck or anv other improvement
excluding a garage, used in connection with the farm dwelling does not
exceed 2,500 square feet
(10) Undeveloped campgrounds"
SECTION 5. Section 8-8.3 of the Kauai County Code is amended to
read as follows:
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"Sec. 8-8.3 Uses And Structures For Which A Use Permit Is Required.
(1) Communications facilities
(2) Day care centers
(3) Developed campgrounds
(4) Home businesses
(5) Intensive agriculture
(6) Livestock and grazing within the Urban District as established
by the State Land Use Commission
(7) Organized recreation camps
(8) Outdoor recreation concessions
(9) Police and fire facilities
(10) Quarries
(11) Recreation vehicle parks
(12) .Religious facilities
(13) Utility installations
(14) Single family detached dwellings and farm dwellings
constructed within the State Land Use Agricultural District where the
building envelope for the dwelling, lanai, deck or any other improvement,
excluding a arage, used in connection with the farm dwelling does not
exceed 2,500 square feet
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."
SECTION 6. Severability. If any provision of this ordinance or
application thereof to any person or circumstance is held invalid, such invalidity
shall not affect other provisions or applications of this ordinance which can be given
effect without the invalid provision or application, and to this end, the provisions of
this ordinance are declared to be severable.
SECTION 7. This Ordinance shall take effect upon its approval.
INTRODUCED BY:
TIM BYNUM
Date of Introduction:
Lihu`e, Kauai, Hawaii
V:\CS OFFICE FILES\BILLS\2010\2377 Ag building envelope restrictions.doc/pm
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